Become a sustaining member of the
Commonwealth Club for just $10 a month. Join today. Welcome, everyone, and welcome, Irwin. We appreciate so much your participating. These are times where intelligent, straightforward conversation
about a lot of the institutional challenges and questions we have about really our society and or how our society is governed. It's very difficult to find a source and a reference
that seems centered on the issues. And that's one of the things that is in your bag of skills, is the ability to present issues
and have and have us as laypeople understand the complexity. So our theme is really a broad one, yet we're going to get into very specific examples
in order to demonstrate it. And the theme really is even
in our tripartite system of government, with the executive legislature
and the judicial. The role that seems to be evolving
for the judiciary, principally the Supreme Court,
of course, as we move through these ever evolving views about societal values, which to me is what a lot of the questions
really come down to. So in parallel with an abstract discussion
like that, we're also going to talk about your book
and the title of it maybe is a great place to start
because the title, when I first read it, I said, okay, I have to figure out
what this means worse than nothing. Well, I guess I could think of situations
I've been in where nothing was better than being there. But that's actually when we find out
what this title means. It's a very poignant expression about your views about originalism as a methodology
for interpreting the Constitution. So let me shut up and turn it to you and give us of the big picture
of the concept of originalism. Sure. Let me say what an honor and pleasure it is to be with you
and to have the chance to talk about this. Originalism is the idea that the meaning
of a constitutional provision is fixed when it's adapted
and can change only by amendment. So it says that the First Amendment
means the same thing as it did in 1791, and it's going to do anything
different has to be done by amendment. The 14th Amendment about equal protection
means the same thing as it did in 1868 when it was adopted. And one of the key points I try to make in
the book is how absurd it is to say we're going to be governed
by the specific views of 1791 with 1868,
take the Second Amendment adopted in 1791. Do we really believe that we should have the same rules about guns
today as existed then, or take equal protection? Those who are originalists say
that the Equal Protection Clause doesn't apply to stop sex discrimination or
discrimination against gays and lesbians, because that wasn't
what the framers intended in 1868. Why should we be governed
by their views? Right. So what's the analog for originalism? If if you say originalism is worse than nothing, well,
then what's better than nothing? Throughout American history,
the Supreme Court has looked to many sources
in interpreting the Constitution. It always starts with the text,
but the words of the Constitution are intentionally,
quite open ended and ambiguous. I think it's always worth considering. What did the framers intend? I don't think we're bound by their views,
but they were wise people. What did they think? We should also look in history
and we should look at precedents from the Supreme Court,
and we should look at modern social needs. Take the example of gun control,
I think, is the dissenting justices say we should consider the problem
of gun violence in the United States in deciding what gun control is allowed . Or when we talk about equal protection, we should look at advances
in our understandings with regard to equality, not limit ourselves
to what they thought in 1868. This is what the court has done
throughout American history, looking at multiple sources. What's new now is the justice saying
everything is irrelevant except what was the original meaning
of a constitutional provision? Where do you see
that turn having been made? Originalism develops in the early 1970s is a way for conservatives
to criticize. A liberal decision to the Warren Court. And I think it
especially comes to the fore after Roe v Wade is a way for conservatives
to criticize the abortion decision. But for a long time, originally,
it was thought of as a fringe, dangerous theory. In 1987, Robert Bork
got nominated for the Supreme Court. He was impeccably qualified. But a Yale law professor. The solicitor general of the United States
was a federal court of appeals judge. He got rejected by the largest margin
of any Supreme Court nominee in history. And the reason was, his originalist
theory was seen as such a risk to privacy, to a quality, to speech. And yet, as Republican presidents pick conservative
justices, originalism comes to the fore. Now, there are three justices
who describe themselves as originalist Thomas Gorsuch and Barrett. And the other three conservatives
are very sympathetic to originalism. Join the originalist opinions
and write those terms. And that's,
of course, Roberts, Alito and Kavanaugh. I think people subsequent to Bork learned a lot from his hearings
because his fatal error was he was honest and open in his answers about how he viewed that concept. He had no choice, though, because he, in his writings,
had endorsed originalism and he had explicitly said there's no protection
for women under equal protection. He had said there's no protection
for privacy like the right to purchase and use
contraceptives or the right to abortion. In his writings, he had said
there's no protection for speech. That's of entertainment value. And so the only chance he had
for confirmation was to explain away his views. He felt he felt, you know,
I was being partially facetious, but because we see in the hearings now,
what do you think about starry decisis? Oh, I'm all for it, you know. But then we get Dobbs. So rather than continue in speaking somewhat abstractly,
I'd like to go and look at a couple of opinions
that demonstrate this. And this is going back a little bit in time to 2013
when Scalia was still on the court. But at the time my alarm bells started going off with for me
was the Shelby County decision. Could you tell us about that? It is a terrible decision that had tragic
effects for our political system. It involves the Voting Rights Act of 1965, which I regard as one most important laws
adopted in our lifetime. Right. And one of the things that it does is it
prohibits state and local governments from election systems
that discriminate based on race. And it authorizes lawsuits
to stop such discrimination. But Congress knew that such lawsuits
are time consuming and expensive. Congress
also knew that especially Southern states were engaging in
what the old arcade game was Whac-A-Mole. You know, they would adopt a law
that was discriminatory, get challenged, then adopt a new one,
and so on. So Congress said in Section
five, the Voting Rights Act for jurisdictions with a history of race
discrimination, voting, they would need to get preapproval called pre-clearance from the attorney general
before they changed the election system. This worked incredibly well. There were hundreds of instances
where, especially southern states,
as to change their election systems. It would be discriminatory manner
in the attorney general said no. Right. There were thousands of instances
where they didn't even try. Mm hmm. These provisions for pre-clearance
were scheduled to expire in 27. In 2006. Congress held 15 hearings, produced a record of about 20,000 pages documenting the continued need
for pre-clearance. Congress approved it with the Senate
voting in favor 98 to nothing in there, only 33
no votes in the House. Right. Can you imagine
many nervous today that we passed 98 to nothing, not even a post office
could get named President George W Bush. No liberals signed the extension
into law for another 25 years. Right. Well, Shelby County is near
Selma, Alabama. It's a jurisdiction with a long history
of race discrimination, voting. And it argued that these provisions of the Voting Rights
Act were unconstitutional. And on June 25th, 2013, the court 5 to 4, declared pre-clearance
unconstitutional. Mm hmm. Why? Yeah. Well, Chief Justice Roberts said it violates the principle of equal states
sovereignty. Right.
That Congress must treat all states alike. But where
is that found in the Constitution? It's certainly not part of the original
meaning of the 14th and 15th Amendment. The same Congress
that ratified the 14th Amendment also passed the Reconstruction Act
that created military rule over some of the southern states immediately
after Shelby County. States like Texas and North Carolina
put into effect discriminatory laws
which preclearance denied. A study showed that after Shelby County black voter participation in United States
went down by 2.5%, the first decreases since the Voting Rights Act
was adopted in 1965. So it's interesting
that in the theme that we're talking about is that even though
the notion of equal state sovereignty isn't found anywhere
in the Constitution, the what we call conservative or quasi
originalist judges in 2013 found a concept to rule the statute
to be unconstitutional. And one of the points
I try to make in the book is that the conservative justices
profess to be originalist. Don't follow originalism. One doesn't get the results they want. And this is such
a powerful example of that and one that has a profound effect
on our political system. That's why I say it
set off some alarm bells, because it just the logic of it was questionable
and the harm that followed was not at all questionable. Let's before I want to go to the Section two, part of the Voting Rights Act
that's under at the court now. But before we go there,
I want to go to some other decisions that actually have been made
because they're more tangible. So let's take a look at the Dobbs
decision. Alito's opinion that was pre-released and professed to be based on history and tradition with regard to abortion. At the time the Constitution was adopted
or the Equal Protection Clause was adopted,
which every you want to prefer. What are the flaws
in the logic of that case? The premise of Justice Alito's opinion in
is that a right should be protected only with the text part of the original
meaning or long, unbroken tradition. I think that's wrong. Rights should be protected when they're
part of evolving sense of decency. Roe versus Wade was 1973. It was 49 years. I think the quick is no weight to that
history whatsoever. The Supreme Court has protected privacy under the liberty of the due process
clause. For a century,
it didn't start with Roe versus Wade. The court is protected
rights such as the right to marry, the right to procreate, the right
to custody of one's children, to purchase and use contraceptives,
the right to refuse medical care, the right of consenting adults to engage
in sexual activity all under privacy. None of those rights would be justified
under Justice Alito's approach,
and I think Roe is correct. Laws that prohibit abortion
infringe women's fundamental ability
to make key choices about their life. And Robert Dobbs was not a decision
about constitutional law. Dobbs was that there were conservatives
who have long wanted to overrule abortion. They had a majority on the Supreme Court, just as a matter of logic. How can we look for history and tradition around abortion at a time
when women under the Constitution were not even given the right to vote,
let alone read the right to an abortion? Part of the problem from an originalist
perspective is that women didn't participate in the. There were no women
to the Constitutional Convention in 1787. There were minimal participation of women
in 1868. Women did not have the right to vote
until 1920. But also, abortion as a procedure
today is very different than abortion. It could be thought that, you know, over
half of all abortions are now induced by medication
that didn't exist in 1868 and 77. Abortion is a surgical procedure,
is quite minor now, far less dangerous than childbirth. That wasn't true in 1868 or 1787. To me, all of that says,
why should we be limited to just what they understood
in the world of 1787 or 1868, when the world was being understood
through the eyes and the brains of white Christian men
who owned slaves. And that's our reference point. And 25 of the 59 people at the Constitutional Convention
were slave owners. Yeah. So just one comment about that opinion, because you said they didn't agree, but they said more than they didn't agree
with Roe. They they very strongly
said it was a egregiously wrong. It's the exact phrase in justice leaders
opinion was, and I'm quoting, egregiously wrong and exceedingly
poorly reasoned. Yeah. What people often forget is that Roe was a
7 to 2 decision. It was written by Justice Harry Blackman. We're going to play it
by a Republican president, Richard Nixon. The majority included Chief Justice
Warren Burger and Justice Louis Powell were going to play republic
presidents. Right. Even more dramatic in 1992 in Planned Parenthood versus Casey,
the Supreme Court, 5 to 4 reaffirmed that states can't prevent abortions
before viability . All five justice in the majority
reaffirming Roe were appointed by Republican presidents, Blackman
by Nixon, Stevens by Ford, O'Connor and Kennedy by Reagan and Souter
by the first President Bush. Yeah, actually, I think just as an aside
comment, it's a fairly recent phenomenon that we start identifying
justices and judges by whom appoint and what president
appointed them as though somehow if Reagan appointed you, you're
you're a Reagan person. And if Jimmy Carter appointed you,
you're a Jimmy Carter person who we didn't think of the court that way. I at least I don't know. You may disagree,
but it was more like people considered questions on the merits
and not on their personal values. This is the first time in history that the ideology of the justices
perfectly corresponds to the political party of the presidents
who appointed them. So the six conservative justices were
all appointed by our public presidents. The three liberal justices were appointed
by Democratic presidents. Until recently, we had liberal Justice
Souter appointed by Republicans. Think of John Paul Stevens
and David Souter. We had conservatives
appointed by Democrats. Think of Byron White,
who was appointed by President Kennedy or Felix Frankfurter,
who was appointed by President Roosevelt. Yeah. So I think that the way in which
we're much more politically divided today also influences the justice we have
and how we perceive them. And, and, and unfortunately,
how we get polarized over decisions that we might disagree with, but recognize
the court has the authority to decide. But we we magnify that polarization
now into anger because we feel as though they're not reflecting what the where the drift of American opinion is going. And I think a crucial question
for the long term about the Supreme Court is at a time when our society
is so deeply politically polarized, what will it mean for the Supreme Court
to so clearly come down on one side of that divide
and so far to the right? The Supreme Court at this moment has
its lowest approval ratings in history. Marquette University poll in
July gave it a 38% approval and a 61% disapproval. A Gallup poll in June
had the Supreme Court with a 25% public confidence
rating, the lowest in history. And I think that's a real threat
to the court. You know,
part of the danger to democracy and which before we go to the gun control decision,
because I want to go there, but I want to elaborate on that point, because it's not just approval. When we talk about the president,
we talk about approval or disapproval or so forth. When we talk about Congress,
we talk about the degree of dysfunction that it may be showing us
at any given time. But the word that's attached to
the court is legitimacy. Which is really a fundamental assault on the role. Assault is the wrong term,
but a fundamental allegation regarding the manner in which the court
is exercising its Article three powers. And there was a little interesting dialog
that you might narrate for us between Roberts and Kagan
about legitimacy. Justice
Kagan gave a talk where she expressed great concerns
about the court's legitimacy. She was clear she wasn't talking about
any specific decision right then. Chief Justice
Roberts took offense to that. Yeah. And Justice Alito gave a talk recently,
the same thing, saying that was crossing the line to say that
the court's undermining its legitimacy. I think what this reflects is
no matter what the public face, there's deep tensions
among the justices on the court and the tensions between the conservative
justice who just overruled Roe for expanded gun rights
and the liberal justices with a very different vision
of the Constitution and society. Let's go to the gun rights decision. The New York right to carry statute,
because what we're seeing quickly play out is federal courts throwing out
various state laws regulating that. So tell us what Thomas did
with that New York statute, as well as in a little bit of context
from 1791 to 2008. Now, one federal, state or local gun regulation was found by the Supreme Court
to violate the Second Amendment in the handful of cases
about the Second Amendment. The Supreme Court always said
it means what it says. It's got a right to have guns for militia
service. In June 28, District of Columbia was held. The Supreme Court
said the Second Amendment right to have guns in the home
for the sake of security. In the case that came down on June 23rd, New York State Rifle and Pistol
Association versus Bruin, the court declared unconstitutional the New York law
that had been adopted in 1907. It was a law that said you can only have a weapon in public,
particularly a concealed weapon. If you get a permit and you get a permit, among other things,
you have to show a safety need for it. California's law was identical and the Supreme Court in a
6 to 3 decision. Splitting ideological lines
declared that unconstitutional. Justice Thomas said there is a
right to have guns in public and that includes
having concealed weapons in public. But then he said
the only type of gun regulations that should be allowed are those
that were historically permitted. Historically means 1791,
when the second amend was adapted, or maybe 1868
when the 14th Amendment was ratified. But he
really went further than that, right? He elevated the Second Amendment above other elements of the Bill of Rights for all other fundamental rights
in the Constitution. The government can infringe them
if the government meets what's called the law, strict scrutiny section
is necessary for a compelling purpose. The government can engage in race. Discrimination in its actions is necessary
to achieve a compelling purpose. The government can discriminate
among speech based on its content if its action is necessary
to achieve a compelling purpose. But Justice Thomas opinion in Brooklyn
said, We're not going to look to it
as a compelling interest. We're not going to look to the means
necessary. The only thing that's relevant is whether
or not this was regulation of guns. There was historically permitted. Use the words you just said. He said The Second Amendment elevates
the right of people to have guns for their safety,
for all other interests. Yeah, it gives more protection
for second amendment rights than any other right in the Constitution, which strikes me as further than the court
needed to go. Right. It was much further than the court
needed to go. Just like in Dobbs, as Chief Justice
Roberts said, much further than the 15 months where this this is a court that has a very conservative agenda,
and they're moving it very fast. So. Just as an example. Quickly, I read just in the blurb today
there was a federal court just held that the rule restricting people
from having weapons that where the serial number is been shaved off or the ghost guns
where there is no serial number is unconstitutional
under the Thomas theory because muskets
didn't have serial numbers in . Doesn't
that show the absurdity of originalism? What is the plausible reason
for not allowing the government to coerce numbers on guns as a way of tracking
something that's dangerous in society? And the fact that in 1791 they didn't
feel the need for serial numbers shouldn't tell us
whether we need to have them in 2022. And the way the courts are feeling
bound to go there is because of the elevated stature
that Thomas gave to the Second Amendment. So there are now I'm going to move into the existing term
because there are some Trojan horses cases in this term that don't necessarily
get a lot of attention, but have the capacity
to do quite a bit of harm. And the first one goes
under very academic name, the industry pendent state legislature theory. This one has a lot of people
who are watching this case. It's in North Carolina carefully. And I think it's worth going into
because it's important people keep their eye on this one. I completely agree. It's the decision this term that I'm most
worried about, going to go back again a little bit in 2019 in a case
called Russia versus Common Cause. The Supreme Court said that federal courts can't hear challenges
to partizan gerrymandering. That's where the political party
that controls the legislature draws election districts to maximize seats
for that party. That case also came from North Carolina. North Carolina is a purple state,
almost evenly divided with Democrats and Republicans, but
the Republican legislature drew districts. So the Republicans are ten of 13
congressional seats in North Carolina. Mean after the 2020
census, the North Carolina legislature still controlled by Republicans. Two districts are Republicans for ten or
11 of the now 14 seats in North Carolina. The North Carolina
Supreme Court said this violates the North Carolina state constitution. Right. Well, the North Carolina legislature
has gone to the Supreme Court and said the North Carolina court
can't enforce the Constitution. This area is left entirely
to the legislature. Article one, Section four of
the Constitution says the legislature, the state should determine the time, place
and manner for elections to Congress. They say it's left entirely and exclusively to the legislature. Now, another reason
people are so worried about this is there's another provision
of the Constitution in Article two, Section one,
that says the legislature of the state that allocates the electors
in the Electoral College. Right. So imagine the court buys
this independent state legislature theory. And imagine that the 2024 buying buying it means that legislature
means legislature and nobody has any bill. That's right. So now, at the very least, it means no court can strike down partizan
gerrymandering of state court even. That's right. go back
to the presidential election example. Imagine that 2024 election is as close
as the 2020 election. Mm hmm. And imagine a few states. Let's make them hypothetically. Wisconsin, Georgia and Arizona. That Republican legislatures. Yeah. But the Democratic candidate wins
the popular vote. They have laws that say to all the states, the winner of the popular vote
is to get the electors from the state. But the legislature is saying
that we're awarding the electors to the Republican candidate and that then determines
who's the president of the United States. Mm hmm. That's what's at stake. I know this series
about the future of democracy. I think if that happens,
this country comes to court. I don't think our country could survive
that happening. And that's not far off from the fake elect
or alleged scheme that we saw in 2020. All right. Same game plan in President Trump. Urge some of the Republican legislatures to give him the electors
notwithstanding the popular vote. It didn't happen. But I think if the Supreme Court
adopts the independent state legislature theory, it's much more likely in 2024. It's an absurd theory
because always legislative powers have to be exercised
consistent with the Constitution, and always it's the role of the court
to enforce the Constitution. The Constitution gives Congress
many powers, but they have to be used
in a constitutional way in court. Can say that's unconstitutional, right. Same thing for state legislatures. The fact they have a power doesn't
in any way preclude a court from determining
whether it's used in a constitutional way. So is this an example of literal
reading of what the founders intent was
when they wrote the word legislature? Or is it a way of achieving an outcome? I think it's
entirely a way of achieving an outcome. I mean, it is the time and place and manner of elections. I don't think that it's involved
in this case of at the time, place and manner of elections. Yeah. If you want to focus on it, I mean, there's also a difficulty
of asking what the framers intended. The Constitution doesn't mention the power
of courts to strike down laws. Right. It's silent about that. That comes from a Supreme Court case
in 18. Marbury versus Madison. So it's very difficult to say. What did the framers
think about judicial review of this topic when we don't know what they thought
about judicial review at all? All right. So another case similar in the voting area
is the Merrill Lynch case that was already argued before the court,
again, going back to the voting. Right. So differentiate
the Merrill issue from the Shelby County issue that we talked about. It mentioned there were two crucial parts
of the Voting Rights Act. One that we discussed with Shelby County
was Section five, preclearance. The other that I alluded to is Section two that says that state local governments
can't have election systems that are discriminatory effect
against minority voters. The Congress amended it in 1985
to make clear the proof of a racially discriminatory impact is enough
to violate the Voting Rights Act. Moreover, Milligan,
that was argued on Tuesday, October 4th, involves Alabama, Alabama's population
about 27% black individuals. But the Alabama legislature,
controlled by Republicans drew the map
so that black voters would it be a majority in only one of seven
congressional districts. And it's easy to do that. Computers, you either pack
all of the black voters in one district. Yeah.
Or spread them out among many districts. But the reality is
they would win only one of seven seats. A three judge federal court found this violated Section
two of the Voting Rights Act. Two of the judges on that panel
were appointed by President Trump. One was appointed by President Clinton. And the question is, does this violate
Section two of the Voting Rights Act? I think everyone is worried
that the Supreme Court is going to make it much more difficult to prove violations
of Section two of the Voting Rights Act. But there's something else that could
go on here that's very frightening. The Supreme Court is interpreted
this statute to mean what it says proof of racially discriminatory impact
violates the law. The same is, you know, is true
with regard to employment termination. Proof
of racially discriminatory intent violates Federal Employment Commission law. Supreme Court has said proof of racially discriminatory impact
in housing violates housing law. But some of the justices want to take
the position that that's unconstitutional. Justice Scalia articulated this. And now Justice
Alito just did it through oral argument. The view is that if there's a requirement
to avoid racially discriminatory impact,
then race has to be taken into account. And taking into account race violates
their view of the Constitution through oral argument. And moreover, Milligan Justice
Alito said it's wrong to look at race in deciding
whether there's a violation of the law and if the court would go there, then
it would gut so many civil rights laws. Well, maybe I'm missing something, but wasn't the 14th Amendment
based on providing racial equality? So it was it by definition based on race? I believe that. But what the conservative justices say is
that equal protection is about the government being colorblind. And if that's
what equal protection is about, then saying you have to consider race
in drawing election districts so you don't have a disproportionate
impact because minority voters is inconsistent with being colorblind. And that's what Justice Alito said. If the all argument and I can mention there's two cases
to be argued October 31st that involved with a college universities can continue
to engage in affirmative action. Right. This is students for free admission
for students North Carolina and Students for Free
Admission versus Harvard College. And I think the Supreme Court's
going to say the Constitution requires colorblindness. No longer can college
universities engage in affirmative action. Let's go back, though, to the argument that the 14th Amendment
was intended to be colorblind. A lot of the governmental actions
around that time for establishing Freedmen Preferences and ACT got official government acts were not colorblind . So if you're looking at history, when you look at that history,
I think it's such an important point. The Congress that ratified
the 14th Amendment adapted many race conscious programs that today
we would call affirmative action. And one of the points that I make
in the book is that when the conservative justices
have argued against affirmative action , they never mention never acknowledge this history. So going back to Harvard University of North Carolina case, I was interested to see that. The Harvard case is actually brought
under congressional statute. Right. Right. Whereas the North Carolina case
at least appears to be brought under the Equal Protection
Clause. Could you explain the reasons for that? The Constitution
and its protection of rights and equality
applies only to government institutions. Private institutions don't have to
comply with the Constitution. North Carolina is obviously a public
university. So equal protection applies. Did. Mm hmm. Harvard is a private university. So the Constitution and equal protection
don't apply to it. But there's a federal statute, Title
six of the 1963 Rights Act, that says recipients of federal funds
can't discriminate based on race. And the Supreme Court has said that Title six means
the same thing is equal protection. Now, the bottom line of this is,
if the Supreme Court does what I predict here, affirmative action will become
unconstitutional, slash illegal in all public in all private colleges
in the United States based on essentially
how America comes out. Is that right, the Alabama case? Not necessarily,
because in Muro versus Milligan, the court could find a Voting
Rights Act violation in a way that doesn't affect
affirmative action, but could could narrow the Voting Rights Act by making it harder
to prove that districting violates the Voting Rights Act
without reaching to the larger question. Or the court could reach the larger
question of whether or not disproportionate impact
liability is unconstitutional. I don't think they're going to go that far
in that case, you know, but I do think in the Harvard and North
Carolina cases, they're going to say college universities
can't engage in affirmative action. I think with six conservative justices,
they've got the majority. And this is a place where Chief
Justice Roberts has been very outspoken in opposing all
forms of affirmative action. He has a fairly
famous quote on what he does, which I'm sure you have committed to memory
in a case called parents involved in community schools with Seattle School ,
this number one and 27. He said the way to stop discriminating
based on race is to stop discriminating based on race. Right. And I'm still trying to understand
how to pass that. Let me just check this, because sometimes the questions fit
right in with what we're talking about. Let me see if we're ahead of ourselves. No, we're we're pretty good here. We will come to your questions. So thank you. So another area that I is a again, somewhat of a sleeper
because it just doesn't get the sizzle in the media is the dismantling, I would call it,
of what we call the administrative state, the the way our government
actually gets things done. We saw the EPA decision last term. There's a Clean Water Act
opinion up there now. Tell us about this. Sure. Starting in the late
19th century, Congress began creating administrative agencies
to implement federal laws. This gradually increased
as you get to the 1930s when there's an explosion
of federal agencies, created the Securities and Exchange Commission
to regulate business, the Federal Trade Commission
to regulate business practices. And we can go on and on. And the national labor relations, the
Labor Relations Act, the National Board and then additional agencies get created
like the Environmental Protection Agency. And Congress
generally gives them a mandate, but then leaves the implementation
to the agency. In the case that you alluded to is West
Virginia First Environmental Protection Agency decided on Thursday, June
30th, involved the question of whether or not the EPA could regulate greenhouse gas emissions from coal fired plants. And this is crucial
to the problem of climate change. And the Supreme Court,
in another 6 to 3 decision, said that the EPA could not regulate the greenhouse
gas emissions from coal fired plants. Chief Justice Roberts, look what you said. When there's a major question of economic
or political significance, an administrative agency can act only
if there's clear guidance from Congress. They said Congress wasn't sufficiently
clear here that the EPA could do this. You know, even though the statute gives
the EPA the authority to regulate these emissions from stationary sources,
which include power plants. Well, what's the major question? Yeah, what especially civic
which meet this? Yeah, I can count on less. Then the fingers of one hand,
the Supreme Court cases that ever even mentioned
the so-called major questions doctrine. But it opens the door to challenges
to administrative agency action, protecting health and safety, safeguarding
the environment, regulating business. Because anybody doesn't
like a federal regulation that says this is a major question and Congress
wasn't sufficiently specific, kind of a twin
of equal states sovereignty. The concept
is made up by the conservatives. At the same time,
they're saying they don't want the courts to be making things up. The courts follow original meaning. And there's also another track on this. Of of a lot of these agencies
have what we call quasi judicial power, like the FTC and the NLRB
and the and the FCC. And there are cases in the system
attacking whether those
are constitutional delegations. Many agencies have administrative law. Judges need to mention one
that some people might have an exposure
with the Social Security Agency. The Social Security Administration has a
large number of administrative law judges. And this is to provide an easy way
to adjudicate disputes that somebody's eligibility for Social Security benefits
or the level of benefits they receive. The National Labor
Relations Board operates entirely through an adjudicatory process. If agencies can't engage in adjudication, then we really do prevent government
from being able to protect people and do things that we all accept
that government must do. Mm hmm. What is the antipathy towards. I mean, let me back up. Look, we have to recognize the world
is a lot more complicated than it was 50 years ago, a hundred years ago,
in terms of technology and the effect that we have on each other just by that,
you know, the so-called butterfly effect, yet this antipathy towards what I call
an effective and efficient way of managing
at national level issues of common interest and common good
seems reprehensible. I don't get what's wrong with it. Well, we haven't touched down
about the current court, is that it's a very pro-business court. There have been statistical studies done
by political scientists that show that this is the most pro-business court
that there's been since the 1930s. When you're talking
about the administrative state, almost always it's businesses
challenging government regulations. West Virginia for CPA. Yeah. In addition to the state was coal
companies challenging EPA regulation. Now, Justice
Kagan wrote a very powerful dissent which talked about how greenhouse
gas emissions and climate change
are imperiling the planet or life on it. There's no mention of
that in the majority opinion. So. But is it just pro-business? I mean, there's got to be something deeper than that, a view of how our government is supposed to work or not. I think there's many reinforcing things
for the conservative justices. I think that they are very pro-business. I think there is a hostility
to the administrative state. There's always been a refrain of get the government off the backs
of business, the American people. And so I think that that's there. I think that you have to put this in the context of a court
that is very politically conservative, and they're reflecting the conservative
antipathy to government regulation. Mm hmm. So let's go back to your in your book. And what I'd like to do is emphasize
the part of the book where you talk about
what you think is the right judicial philosophy for the court to have. And let's let's go positive and let's expand on how that should work. I believe that there should be a living
constitution, a constitution
that evolved to meet society's needs. Let me give you a powerful example. Brown versus Board of Education. If one were to be an originalist,
Brown was wrongly decided. The same Congress
that ratified the 14th Amendment voted to segregate the district
Columbia public schools. There is no indication
that those who adopted or ratified the 14th Amendment
meant outlaw segregation. But I think everyone agrees
that it was imperative that brown end segregation
in the United States. For another example,
Loving versus Virginia. This was the case in 1976
that said that states couldn't prohibit interracial marriage
when the 14th Amendment was adopted. Almost every state privet
interracial marriage. California outlawed interracial marriage
from 1948. Yeah, in 1967, when Loving was decided. 16 states still had laws
that prohibited interracial marriage. To me, this shows why we shouldn't
be sticks to the understandings of 1868. Why it has to be
a living constitution. Yeah. Yeah. The image that comes to me
is in Jurassic Park when they find that insect in amber and frozen in amber, and we're freezing our constitution
in amber. And and one of the areas
that's so been so much important, part of our the way we view ourselves
is the distinction between religion and government. They both are valid, but they should stay
out of each other's kitchen. Take us down the line. A case as the court
has been pursuing there. It was Thomas Jefferson, not a liberal law professor said there should be a wall
that separates church and state. And for decades, the Supreme Court
followed that philosophy. On the other hand, now the Supreme Court is obliterating
any notion of separating church and state in very much aggressively
protecting free access religion. I'll mention two cases
from the end of June. One is Carson versus
making the parts of the state of Maine through to rural
to support public school systems. So in those areas, school
administrative units give money to parents
to send their children to private school. Maine law says it has to be a secular private school,
not a religious private school. Two families brought a challenge to this
in the Supreme Court, 663 said When ever the government provides funds
for secular private schools, it is constitutionally required
for funds for religious schools. So here in California,
we have charter schools where the government pays for the schools. But the privately run California law says charter schools must be secular. Is that now unconstitutional? Because Justice Breyer and Justice
Sotomayor said the dissent, this completely ignores
the establishment clause. Or maybe to put it another way. For decades, the issue was when may the government give forms of aid
to religious schools without it being a violation
of the establishment clause? Now the court says the government
is required to give aid to religious schools
where it violates free exercise. Right. And just to remind us that the kind of the marriage are in there, have free exercise
and establishment in the First Amendment. It's a little tricky one. Explain that. It's two provisions. One that says that. The government can't have a law
respecting the establishment of religion. The other says the government can't have a law abridging
the free exercise of religion. And I can illustrated with the other case
that came down on June 27th, the case called Kennedy versus
American Schools and involved a high school
football coach, Joseph Kennedy, in a public school in Bremerton,
Washington state. And he made it a practice
after games of going and kneeling on the 50 yard line
and engaging in silent prayer . Sometimes players from his team
would join him. Sometimes players in both teams
would join him. The school got a complaint from a parent. The father said, My son
and our family are atheists. And my son feels if he doesn't participate in the prayer,
he'll get less playing time. The school said to the coach,
Don't do that. The coach briefly complied,
and then he began going on the field after games and delivering
a Christian inspirational message. They called it prayer. Again, sometimes is joined by his players, sometimes by players in the opposing team. Sometimes people from the stands
in the school suspended the coach and give him a poor performance
evaluation. He sued. The lower courts ruled against the coach, saying that it violates the establishment
clause to prayer in public schools. For 60 years, the Supreme Court has said
without exception, that prayer in schools, even voluntary prayer
unconstitutional. The Supreme Court, 6 to 3, again
ruled in favor of the football coach. Justice Gorsuch wrote for the court and said it violates
the free exercise of religion, the free speech rights, the coach
to keep him, punish him for praying. Justice Sotomayor writes the dissent says,
what of the establishment clause in six decades of jurisprudence
outlawing prayer. So notice here
we've gone from prayer in schools, violating the establishment
clause to the exclusion of prayer, violating
free exercise of religion and free speech. And there's actually more subtlety
to that opinion as well. If you read the majority opinion facts and the dissent facts,
you think they were different cases. You're absolutely right. It's stunning. Justice Alito characterizes
the right of the football coach to pray in private after the school event is over. Justice
Sotomayor included pictures in her dissent showing the coach on the field
surrounded by players. This isn't private,
and even if the game is over, it's still with everyone in the stands
as part of the event. Yeah. And it's a very stark contrast to you. We talk about alternative facts
and things like that these days. And this opinion to me is not and perhaps and perhaps eligible to be discussed. So let's I want to go to audience questions,
because they're always very revealing. Here's a great one because we went back to Shelby County and this question says,
what about going back to Citizens United? It's such an important case
that changed our political system. It was a decision in 2010 Citizens
United versus Federal Election Commission that said that corporations have the right
to spend unlimited amounts of money in election campaigns . The Akins elected were defeated. It was a 5 to 4 decision. The conservative justices, the majority,
the liberal just dissenting. I want to take it back
to a discussion of originalism. I don't think there's
any plausible argument that the framers of the Constitution in 1791 thought
that they were empowering corporations, spend unlimited amounts of money
in election campaigns. Corporations
didn't exist then, as they do now. You know, justice saying
that campaign spending didn't exist then. Parties didn't exist. Right. I mean, to go back to
Kennedy was very specific. I mean, if you ask the question,
what did the framers in 1791 think about the right of a football coach at a public school
to engage in prayer on the field? It's an absurd question. Yeah. But nonetheless, the conservative justices
found that restrictions on campaign spending by corporations
violated the First Amendment. And as I say, this such an enormous effect
in our political system as corporations can spend as much as they want
to get candidates elected or defeated. Then going back to the discussion
around legitimacy and I'm glad that you brought up
Citizens United because part of what seems to be going on is taking cases sometimes beyond where they need to go in them. And if you think about, as I recall,
Citizens United was a kind of it was about a documentary film
and whether it was, you know, supporting of. Particular campaign or not. And and the court took the case
and escalated the stakes way beyond what
the original parties had thought about. Let me make a more general point that goes
to what we're talking about tonight. For decades, conservatives criticized
the Warren Court and liberal decisions as judicial activism and professed
the desire for judicial restraint. Their vocabulary
has largely gone away now. I'm not sure what judicial activism means. I often think it's the label
we use for the decisions we don't like. But if I were to define judicial activism,
I'd say when the court is upholding a law, it's being more
restrained, deferring to the government with striking it down. It's more active
when it's overruling precedent. It's more active
when it's following precedents. More restrained. When it rules
narrowly, it's more restrained. When it rules broadly, it's more active. Take Citizens United. The Supreme Court strikes down the bipartisan Campaign
Finance Reform Act, key provisions of it. The court overrules
a seven year old decision that it upheld as identical provisions. And, as you say,
where the court could rule very narrowly, just on a statutory question,
you know, it rules broadly declaring this unconstitutional. I can say the same about Shelby County
declaring unconstitutional. The Voting Rights Act
overruling precedent, ruling very broadly. Mm hmm. And so in the same about times,
the court could have ruled more narrowly and certainly overrules
a 49 year old precedent. How hard do you think Roberts was working
to try to get the because
that went up on a 15 week write down. And Roberts, in his concurring appeal, agreed
with the majority, agreeing that the 15 week ban was okay
without overturning Roe. Do you think he worked hard to try
to find another judge to join him on? Absolutely. And we know from reporting of those who talked to individuals
within the court, Roberts was doing that. Joan Biskupic, who covers
the Supreme Court for CNN, was able to people talk to her
about how hard Roberts was working. Roberts chief justice cares enormously about the institutional legitimacy
of the Supreme Court. Roberts tends to prefer generally narrow rulings that are more incremental, as opposed to dramatic rulings
that greatly change the law. So Roberts wanted to uphold
the Mississippi law, let states prohibit abortions
after the 15th week of pregnancy, but leave open the question with it. Overrule Roe. But it was imperative
that the case was argued in the Supreme Court last December 1st
that Roberts didn't have the votes. He tried and he continued, try to persuade one of the justices to join him,
but he couldn't do it. My guess is once the draft opinion was
released, nobody was going to change just because it would be too hard to explain why they had changed. I think that's true. But the moment the court
granted review and dabs, I thought they're going to go versus wait. I wrote an op ed in the L.A. Times that came out the day after. They granted certain doubt and said There's no reason for them to take this,
but if they want to overrule rule and any doubts I had were raised
when the case was argued in December 1st, when Justices Kavanaugh and Barrett made clear
they were going to vote to overrule Rao. Well, also about the Texas heartbeat. That's right. Right. Go run through that. Sure. Texas down to the law. SBA that prohibits abortions
after the sixth week of pregnancy and creates civil liability
for those who aid or that abortions. A reproductive
health care facility in Texas went to the Supreme Court for the law
was to go into effect on September 1st, 2021,
and ask the Supreme Court to enjoying it. In the Supreme Court. 5 to 4 refused to do so. The five were the same as in Dobbs, Alito,
Thomas, Gorsuch, Kavanaugh on Barrett. And the court allowed that law
prohibiting abortions after the six weeks of pregnancy to remain in effect
from September 1st to this day. And of course, it was, at least
until then, blatantly unconstitutional. That was an obvious signal. There were five votes to overrule Roe. And something is consequential
is that they turned it on whether there was federal jurisdiction
or something. I never quite got it. The general law is that if a state
has an unconstitutional statute, the way to challenge it is to sue
state officials and get an injunction. Right. And this is what the Supreme Court
has said for over a century. So if California adopts an unconstitutional law restricting
the speech of law professors and. I want to challenge it. I sue the governor,
the attorney general, for an injunction. But the Supreme Court in its case called women's health
Chris Jackson, said you can only sue state officials
if they play a role in enforcing the law. So when a law creates civil liability, since state officials don't enforce that,
you can't sue them. California adopted a gun law
this summer that creates civil liability in certain circumstances
with regard to guns, such as giving a handgun to a minor 18
or a long gun to a minor under 18. And the idea that California's
trying to do is to copy the Texas law
and say it's just civil liability work. Two ways, you know,
and I think the Supreme Court is wrong. If it's an unconstitutional law,
then the federal courts should have jurisdiction
to be able to enjoy it. What would happen if because that case,
the Texas law requires or it allows me to sue you
if you violate that law. Right. It doesn't mean
the district attorney comes in. That's correct. So it's it's a private cause of action,
like if you chop down a tree in my back. So suppose they set up a civil case where a private individual
sues a doctor or whoever? Well, do you think the court
will take that case at this point, assume that Roe versus Wade
was still the law? Yeah. And if a private person sues the doctor, the doctor can argue that the law
is unconstitutional as a defense. Mm hmm. Now, of course, in light of dabs,
the Texas law is constitutional, but me put in the gun context, I imagine that
somebody who sued under the California law for selling a gun to a minor in a way that is impermissible. Mm hmm. The defendant in such a civil suit can, as a defense, argue
the law is unconstitutional, but no one can go to court to get an injunction
to stop it from being on the books. So he would stop from being. And then if you're a doctor
practicing medicine, you don't want to violate the law
in order to vindicate his example. There's a
right still to same sex marriage. Imagine a conservative state adopts
a law, says anyone who performs a same sex
marriage is liable for $100,000. If somebody was courageous enough
to violate that as a defense,
they could be unconstitutional. But the law on the books likely means that
no one will ever take the chance. Yeah, that's. Yeah. You want to be the person who puts
your head in the attack in the guillotine. So a question. We have a few minutes left
and I want to get to some more questions. Could you talk about
how the court is using the shadow docket? Sure. The shadow docket involves matters that come to the court
for an emergency ruling. This isn't new. We're all familiar with instances
where people on death row soon before the scheduled execution
go to the Supreme Court for an emergency order
to stop the execution. And occasionally that happens. Yeah. But what's changed in recent years
is that the Supreme Court is deciding many more matters
and the shadow docket is doing so in a way that's quite inconsistent,
that using the shadow docket to hand down rulings that favor
conservatives and then not being involved when the same principles would say
they should for more liberal results, give an example that we have earlier
Mirrored versus Milligan. The voting case argued week of Tuesday, the Supreme Court
last spring and its shadow docket stopped the lower court opinion
from going into effect, which would have prevented
the discriminatory maps being used in the Alabama primary general election. Mm hmm. In order for a court to do that. They're supposed to find
that the substantial likelihood that the challenging party
will prevail on the merits. Mm hmm. The court didn't do that. And yet, in other instances,
the court doesn't get involved. The bottom line is
the court is deciding a lot more matters without briefing an oral argument
on its emergency docket. And all the ideological biases
are especially coming out on the shadow docket
that I think what was behind this question and here's an interesting question
about a case that I didn't bring up, and I think we have time to bring it up. The we remember the Baker case
from Colorado. Right. About whether a baker has a right to refuse to make a wedding cake for a gay or gay wedding. So there's a case I'm not
I should let you explain it, but it has to do with a web designer. Exactly. Yeah. The case is called
303 Creative versus silliness. It involves a woman in Colorado. Laurie Smith,
who has a business designing websites and she wants to design websites
for weddings. But she says
she doesn't want to design websites for same sex weddings
because of her religious belief. Colorado has a law
that says that business establishments can't discriminate on the basis of race,
sex, religion, sexual intention. California has a similar law. The unranked the Federal Court
of Appeals, United States appeals to the 10th Circuit
said Colorado has a compelling interest in stopping discrimination against gays
and lesbians, yet that justifies infringing for free exercise, religion
and her free speech. The Supreme Court granted review,
and I think most believe that the Supreme Court
is going to rule in favor of Roy Smith. There's always a tension
between liberty and equality. Any law that prohibits discrimination limits a freedom to discriminate. But our society has made the choice
for 60 years that stopping discrimination is more important
than freedom of discriminate. I think the court's going to say
the opposite here. He wants the court
says there's a freedom to discriminate based on your religious beliefs or speech. That is not just going to be
about sex limitation. Yeah see awesome is the or speech part
because the the wedding cake was religion issue. But here they're saying that requiring the web designer to design a website violates her speech rights. The underlying issue is the same. Does the government
have a compelling interest in prohibiting discrimination
that would justify saying if she has a business, she can't refuse
to serve gays and lesbians? And I think it's going to be another 6
to 3 decision ruling in favor of her. But what if, instead of it
being a Web designer, what if it's an employer who says I'm
an Orthodox Jew or an observant Muslim and believes that men and women
should be in the same workplace? So I'm not going to hire women
based on my religious beliefs. I don't know how to draw a distinction
there. Right. That's well, that's I think the subtext of a lot
of what you've been talking about tonight is it's not just these decisions. It's the extrapolation from these
decisions in so many different directions, like the one we talked about,
about the serial number on a gun, which straight strikes me as just a matter of keeping track of things. But is the extrapolation, as you say, of that of that case
into all kinds of context? And it's it's not that every one of those
cases gets to the Supreme Court. If an individual exercises
a discriminatory notion based on citing the Supreme Court and,
you know, you're on the defensive if you're trying to say
that's an unfair way of running our society is. And maybe that's the point that we're really getting to,
is that as our society evolves from a small group of white men who wrote Constitution to our pluralistic, multiracial, multi-ethnic society today, we need to have greater openness
and greater sensitivity to individual rights
and individual freedoms and and revel in affirmative action
and revel in diversity and not be putting the car in reverse. And of course, that's
the thesis of the book that I read. It makes no sense to say that
the Constitution today is limited to what they thought in 1787
for an agrarian slave society. That's why it's always been until now in what should be a living constitution. Well, I think that's a perfect sentence
to end on. It also helps me remind you
that everyone will be outside and with the books
and will be signing the books. And I heartily recommend it to you
if you want to get some insight into understanding this large dynamic
that's going on within how
we think about the role of our judiciary and the role of all of us
as people in the society. So Erwin, on behalf
of the Commonwealth Club and our great audience and everybody
on YouTube, I thank you very much. And we will meet again,
I think, this summer. Okay.
