Hesburgh Lecture 2016: Professor Amy Barrett at the JU Public Policy Institute

[Music] good evening and welcome my name is Rick Mulaney I'm the director of the Public Policy Institute here at Jacksonville University and welcome to the fourth annual Hesburgh lecture we're very pleased to have all of you here the Public Policy Institute in partnership with the Notre Dame Club of Greater Jacksonville has been hosting this lecture series for four years and we are very pleased to here at Jacksonville University and I will tell you in the past we've had some outstanding lectures but quite frankly I think tonight's will be the best yet and it is certainly the most timely as everyone knows the President Barack Obama was here in Jacksonville today the Republican nominee for president Donald Trump was in Jacksonville today and on Tuesday five days from now there'll be an election in which the ballot the future of the Supreme Court hangs in the balance very important topic and that's the one we have for tonight it's a great topic and hope you're going to enjoy tonight's discussion before we get to that discussion this lecture series wouldn't exist except for Pacquiao bein as y'all if you know he's the president of the Notre Dame Club of Greater Jacksonville and so Pat came together and we put together this lecture series we think it's a great a great annual event and it just so happens when he was in law school at Notre Dame he had professor Barrett as his teacher so not only see the president of the club the person responsible for putting this together he was a student in her class he is the perfect person to introduce our tonight's special speaker so I'd like to introduce Pat Kilbane it is it's always fun to do an introduction when you don't even need a paper or notes to introduce the person but you I want to make sure I don't leave anything out but and it's really fun to see professor Barrett when a three-hour exam is not gonna follow my visit with her so professor amy coney barrett is the diane and mo miller research chair and law she received her undergraduate degree from Rhodes College in Memphis Tennessee where she received that degree magna laude in English literature and then she received her Juris Doctorate degree from the University of Notre Dame summa laude where she won the horns prize and to translate that that means that she was the top graduate in her class and going from Notre Dame she went to clerk for justice Lauren Silverman on the United States Court of Appeals for the DC Circuit and then that she chased that with clerking for the late Associate Justice of the United States Supreme Court Antonin Scalia following her work with Justice Scalia she worked at the Miller Cassady law firm in Washington DC where she had a litigation practice at the trial and appellate level she did appellate work also professor Barrett's scholarship focuses on statutory interpretation constitutional law federal courts and in fact she was appointed by Chief Justice John Roberts of the United States Supreme Court to the Advisory Committee for the federal rules of appellate procedure she's she's one of those professors I actually had her for two classes she doesn't remember I had to remind her when we were setting this up but she she's she's that professor who's elected year after year by her students to give the commencement addresses to be the who receives the award for being the outstanding professor so it's it's truly a blessing to have her here especially as Rick said during this timely season where one of the major issues for many voters especially me is which one of these candidates is going to get to appoint Supreme Court justices so I can't wait to hear her take on that and lastly professor Barrett makes her home with her Notre Dame Ella's alum husband Jesse in South Bend with their seven children so professor Barrett welcome to Jacksonville a little bit about Justice Scalia and what his absence from the court will mean and then shift and talk in a broader brush about what's coming for the court and what the election will mean for the court and I know I have a room that's mixed some lawyers and some not so if the lawyers will forgive me out I'm going to try to pitch it so that the non lawyer can follow along as well justice scalia's it's hard to overstate the influence that he had on the court and the whole that will be gone with his passing yes Justice Scalia was a conservative and so you know it's often said he was on the conservative wing of the court but it I really dislike the use of that word in this context and he would too translated to say that he was a conservative doesn't refer to partisan politics to say in the context of constitutional law that Justice Scalia was a conservative described his approach to the Constitution and has approached to the judicial rule not a party affiliation Justice Scalia's approach to interpretation of both the Constitution and statutes and that's the grist for the mill for a federal judge as interpreting federal statutes and the Constitution his approach very much emphasized the primacy of the text his view was that you're talking about the Constitution as a text that the Constitution means what it meant to those who ratified it as people would have under he interpreted the text as people would have understood that text at the time it was ratified so for the original Constitution we're looking at the late 18th century understandings for the Civil Rights amendments we're looking at the post Civil War Reconstruction period understandings but his rationale for that was depth democracy that this is the enacted text it went through the process of ratification or a constitutional amendment to become a law and if we change the law now to comport with our current understandings or what we wanted to mean then it sees to be the law that has democratic legitimacy so he believed that change should come from the democratic process that changed from the Constitution should come through constitutional amendment and statutory change should come from Congress or state legislatures that the Constitution didn't call all the shots that change and social change the Constitution set a floor below which we can't go but that above that floor there's a lot of room for democracy for the people to add additional protections and to make changes so Justice Scalia resisted the notion that the Supreme Court should be in the business of imposing its views of social mores on the American people he thought that things that the Constitution didn't declare off limits were up to the people to decide his view of this emphasis on text and the emphasis on textual meaning as it was understood at the time of its ratification in the context of the Constitution or statutory enactment in the context of legislation distinguish him from those we might characterize as the Liberals on the court and I give the same caveat here we're not talking about partisan politics we're talking about the word liberal capturing an approach to constitutional interpretation and that approach which Justice Breyer Justice Stephen Breyer is a good example of it Justice Scalia and Justice Breyer went out on the talking circuit and they often sparred about the approaches to constitutional interpretation so justice Breyers approach is much more pragmatic so he starts with the text of a statute or a constitutional provision he begins with the text but as Justice Breyer describes it the text is a starting point but not an ending point and sometimes it makes sense to push the text in a different direction in a way that makes sense to the judge that the judge will think leads to a more sensible result so that's kind of a nutshell version of the living Constitution approach and it stands in Contra distinction to the original ISM or textualism of Justice Scalia Justice Scalia was an extraordinarily effective advocate for his approach to interpretation because he was very smart and had an outsized personality he really was brilliant it was intimidating working for him you know when he called you in his office you had to be prepared to just go to the mat and talk about whatever it was and he was always five steps ahead of you so he had a intellect but then he didn't express that intellect only to lawyers it wasn't just in the United States reports and judicial opinions he wrote books that were accessible to popular audiences he went out and gave speeches and so he made his ideas and his approach to the constitution and his ideas about the judicial role accessible to non lawyers he wants remarks that the reason why he wrote dissents and separate opinions concurrences is because he wanted to get them in the case books and he was a colorful writer he was an excellent writer and so casebook authors would include his dissents and separate opinions because they were so engaging and so clear and then that influenced law students who read them so his influence on generations of law students has been great and his influence on the public debate has been great so the significance of his seat it's it's an empty seat on the court and it has the potential to flip the balance on the court between these two camps of judges judges who take a more expansive approach to Constitution and judges who take a more textual approach to the Constitution but the symbolic significance is that it's his seat so he is the face really and he is the face of this originalist text analyst textualist approach to the Constitution and so if President Obama had successfully and I think at this point it's unlikely that President Obama will be the one to name the successor to Scalia's seat but if Hillary Clinton or President Obama names the successor to that seat it's not just that it was held by a conservative justice one who took this more conservative approach to the judicial role but that it was Justice Scalia so the symbolic nature of that flip would be significant I want to talk a little bit more broadly about what the election means for the composition of the court more generally Justice Scalia's seat is getting all the attention because it's the one that stands vacant but the reality is that the next president will likely get four appointments Justice Scalia's seat is empty Justice Ginsburg is 83 Justice Breyer Rick help Maisie 79 78 78 and Who am I Oh Justice Kennedy is 80 so that's four seats that's the last president who got four nominations was Nixon so this could be a sea change now you're talking about Justice Scalia who took this very kind of rigorous textual approach Justice Kennedy is a fellow traveler of the courts textualist in statutory cases not always in constitutional cases he's obviously the notorious swing vote in constitutional cases but he's a he's a swing vote he can go either way Ginsburg and Breyer are much more firmly in the camp of the more expansive approach to constitutional interpretation so let's imagine President Clinton if she replaces Ginsburg and Breyer she will do so with much much much younger justices who then will likely have a very long tenure in the court in front of them okay that will be quite significant to the court if she replaces Justice Kennedy with a pick it's going to be someone who I mean Justice Kennedy is a swing vote sometimes he votes with a more conservative wing of the court sometimes with the more liberal wing of the court and again I'm using those turns and they're sent in their interpretive sense rather than their partisan sense um but Hillary Clinton would not appoint someone who would be a swing in those cases it would be someone who was always very firmly on the side of those who interpret the Constitution more expansively so we would be talking aver about a very market shift it would be a very Court that was very very liberal and took a very expansive view of the judicial role what would we have in a trump court who knows I think we know for sure I could say with confidence I don't know who Hillary Clinton would appoint but I can say with confidence the profile or the kind of constitutional approach she would want Trump I'm not so sure he's offered a list in his list is populated with people who would take a more Scalia esque approach to the Constitution who knows if he would choose from that list or not is obviously not bound to do so I think it would be maybe more of a mixed bag I think maybe Trump would appoint some that were more in the mold of Scalia maybe some more in the mold of Kennedy who knows I think we may well end up with a moderate to more conservative court on judicial role I think it is safe to say it probably wouldn't be as hard to the the left-leaning side on the approach to constitutional questions as as Hillary would before Rick and I start you know the next segment the final thing I want to say about this this question of partisan politics and the court is that Justice Scalia thought it was so important and if voters could really absorb it's hard because voters and people generally see the headlines in newspapers you know court decides in favor of same-sex marriage or you know court strikes down Texas abortion restrictions it's just the headline it's just the bottom line it doesn't show any of the reasoning and the hard analysis that the court goes through to reach that decision and I think it leaves voters with the impression that justices and judges are just casting votes based on the policy results that they prefer you know I'm I'm pro-life or I'm Pro same-sex marriage or what-have-you whatever the the hot issue is on the court that term but that is not how judges see their role it is certainly not how Justice Scalia saw his and one there are a couple of really stark examples of this that I think show in Justice Scalia's case the divergence between partisan politics or political preferences and adherence to the rule of law and to me that's the quality that we should be looking at when we think about what justices would fill these vacant and soon-to-be vacant spots on the court Justice Scalia before he was on the court was in the Reagan administration he was in he was a in a law-and-order Republican administration that was tough on crime and as you know in his former life as a Republican and the department of jennife Ischl in the republican department of justice i'm assuming that his personal preferences may have leaned more to the law-and-order side but he was one of the most consistently Pro criminal defendant justices in constitutional Criminal Procedure cases because he thought the text of the Constitution required it and so he was constantly voting with the quote kind of more liberal justices in cases interpreting the sixth amendments right to confront witnesses in interpreting the Fourth Amendment search and seizure Clause interpreting the extent of the jury trial right and sentencing because he thought you went where the law took you you followed the rule of law not your partisan preference an example that was close to his heart was Texas versus Johnson which was a flag burning case Justice Scalia um and I I think I heard someone describe this once as something that would be difficult for someone not in his generation to fully understand the gravity of it I'm Texas versus Johnson involved a case challenging state law Texas law that made it illegal to desecrate the flag many states had such laws and you know Johnson in this case had desecrated the flag Justice Scalia voted with those justices who hold that he had a First Amendment right of free speech to desecrate the flag that was very painful for Justice Scalia and and to me not that I would desecrate the flag but I think not what I've what my grandfather said who was a World War 2 veteran was that you just can't understand the deep significance of the pain that it wasn't just wow I don't like that result but kind of the emotional wrenching that it was to cast a vote for a result that he really found painful that he abhorred but he thought that's what the First Amendment required and I think those examples really show what we want an injustice someone who applies the law who follows the law where it goes and doesn't decide simply on the basis of partisan preference Rick I know you had some questions that you wanted to present presser Barrett I like to put this a little bit of a historical context we had a chance to trap to talk yesterday and we'll talk a little bit about the arc of history because something you said yesterday was really striking I want to put with five days the next five days what happens on Tuesday means to the future of the country in the future of these decisions not by looking for just yet but by looking backward one of the things you said I'd like for you to comment on yesterday was that the last time there was a liberal majority was during the Nixon administration so can we look back a little bit over the last sort of 40 years and sort of describe the composition of the court and then describe what's at stake next Tuesday sure um Nixon got four appointments now it's a little bit so a lot of people say well the last president who could really shape you know the last time we had a majority of Democratic appointees on the court was prior to Nixon okay which is true Nixon had four pointees it's a little bit difficult to say because and this has been particularly two of Republican appointed justices they haven't always turned out to take a conservative approach or take kind of a very text-based approach to the Constitution right so included in justice Stevens was a Ford appointee but he was a Republican appointee but he was very much in the camp of the the more expansive judicial role type judges Blackmun Nixon appointee so he was a Republican appointee justice Souter was a you know George HW Bush appointee but timed his resignation so that President Obama would get the appointment because justice Souter was also very much more kind of an expansive judicial role so it's it's not always easy to say do we have a primarily conservative or liberal Court simply by looking at who whether the majority of the sitting justices were appointed by Republicans or Democrats I think that with the Nixon appointments there was definitely a move in the court and Carter didn't get any and then when you see Reagan come in that's where you had the real definitive shift that's where you got justice O'Connor Justice Kennedy Justice Scalia you had a conservative majority you had an active and energized conservative majority on the court Justice Thomas was then appointed by George HW Bush and justice Souter that was you know Justice Scalia one on the court in 1986 so I think in those years before Rehnquist was appointed by Ford and that was also kind of a push towards the more restrictive judicial role type Court but you really had it kind of decisively accomplished in the Reagan years so you're looking for 1986 to the present that that's at least we're talking to a pretty healthy stretcher we're looking at least 20 years I think it's also important to recognize that part of what Nixon was getting at Nixon promised to appoint strict constructionists you know judges that would really enforce the Constitution as written and by the way Justice Scalia would roll over in his grave if he heard anyone describe him as a strict constructionist because his view was that you know an interpret the text strictly you don't interpret it expansively ughter prett it at the level of generality with which it is written but strict constructionism was a term that got thrown around a lot because it was a reaction to the Warren Court so the Warren Court had been very active it had really been V living constitutionalism Court before that this idea of a living Constitution really wasn't around and so when Nixon came in and said he wanted to change the court it was in response to what a lot of people saw at the time as a court run amok that the Warren Court was inventing all of these rights in broad terms some come in some commentators talked about sort of the arc of the court that from the FDR and Harry Truman yeah but it certainly was liberal for many decades that a transition started with President Nixon and as you've mentioned for probably at least three decades going back to 1986 and maybe beyond you've pretty much had more or less that you could say a conservative majority is that a fair state I'd like to talk about what's happening next Tuesday you mentioned earlier something that I think is really true I mean I the focus of the nation tends to be on the replacement of Scalia because that's the 5-4 tiebreaker but what's being missed as you mentioned I'd like you to comment on the most two things not only the ages of the three older justices Ginsburg Kennedy and Breyer but how youthful the more liberal judges are Kagan at 56 and Sotomayor at 62 meaning that isn't it very possible you could have a liberal majority for the next couple decades and Beyond based on what happens next Tuesday absolutely and I mean I think that I think one reason so there's a lot of speculation and I don't have a crystal ball so I don't know if Hillary Clinton wins whether she would stay with Merrick garland or choose someone else but I suspect she would choose someone else for youth because a president can shape the court Merrick garland is in his 60s 61 62 I think in his early 60s a president has a bigger impact on the court the longer the justice he or she appoints stays in office and Merrick garland I think I read an analysis by a former Supreme Court Clerk who's a Democratic policy adviser he said oh no no no no she should just focus on getting through controversial legislation in Congress and not fight the garland nomination battle because he will do everything she wants him to do he will be solidly reliable in every high-stakes constitutional case because he would take this approach that the Constitution should translate into kind of Prudential judgments by justices I don't know if she would or not because even if Merrick garland who is by all accounts a wonderful man and an excellent judge even if he would be reliable and shares her judicial shares her judicial philosophy and a lot of these high-stakes questions he doesn't excite many parts of the base he's he's a little boring in that respect so she would have an opportunity to energize her base and to put in someone who is much younger and then absolutely Rick you have a pretty long living court you know Justice Scalia was on the court for almost 30 years and he was appointed in his early 50s so it could represent a significant change over the last several decades and to give that a little bit of meaning what I'd like to do is is to ask you a question that arises from the third presidential debate Chris Wallace asked this question which I think relates to how you select judges and what it might mean in the third presidential debate you may remember Chris Wallace asks each candidate what criteria are you looking for when you go to pick the next Justice I'm giving you a real shorthand of a couple of the answers Hillary Clinton mentioned she wanted someone who protected individual rights and minority rights Donald Trump mentioned he wanted somebody pro-life either of these court of course a very Scalia like and so I'd like you to comment on that versus the selection criteria based on your views of constitutional law professor as to what we're looking for in the US Supreme Court justice um those kinds of answers are I think what's wrong with our nomination process to say I want to appoint someone who's pro-life or I want to appoint someone whose primary focus is protecting minority rights though the candidates are talking to their bases and talking to the electric and saying signal I'm going to put people on the court who share your policy preferences was saying before I think that's not the right qualification for a justice I mean we shouldn't be putting people on the court that share our policy preferences we should be putting people on the court who want to apply the Constitution and by the way on the on the individual rights of the minority rights when the Constitution demands that minority rights be protected that's what we want justices to do that's their job I tell I you x' the example with my constitutional law students of Odysseus words resisting the sirens but the Constitution is like in Odysseus ties himself to the mass to resist the song of the sirens he tells his crew don't untie me no matter how much I plead that's what we've done as the American people with the Constitution we've said you know it's the people sober appealing to the people drunk that when you are tempted to get carried away with by your passions and trample upon the First Amendment rights or minority rights this document will hold you back and it's the job of the justices of judges generally but then ultimately the Supreme Court for the exercise of judicial review to tell us like in the flag-burning case we understand you people you American citizens that you want to protect your flag but you've made a more fundamental commitment to free speech that ties your hands and you can't do so that's what it's about it's not about I like flag desecration I don't like flag desecration it's about are you going to enforce the limits that are there but then if the people do something you don't like if it's not one of those situations where the the hands are tied or just yes it's tied to the mast that you have the courage and integrity to say I'm not going to interfere in the democratic process if the Constitution doesn't restrict your ability to do electorate what you've decided to do in this particular statute you've enacted then I'm going to not interfere I will resist the temptation as a judge to impose my preferences on you and say that you are limited in the policies that you want to pursue this is an aside Justice Roberts in his confirmation you talked about the role of being an umpire and I guess if you were an umpire you couldn't be pulling for the Cubs or the or the Indians last night you just had to call it ball or a strike regardless of your policy preference as to how that game turned out but I would like to bring up a case that illustrates the difference of a more expansive view versus a a textual view I almost said strict construction excuse me more originalist view and this is a case and this is not about the merits of the policy so I want to lay aside whether or not you're in favor of same-sex marriage or opposed to same-sex marriage but I would like to talk about a burger fell versus Hodges a 5-4 decision that was based largely on the Due Process Clause of the 14th amendment and in particular this notion of substantive due process and a fundamental right in substantive due process and could you sort of explain and contrast the view of the majority versus the view of the minority and what that might mean not what only men have been for that case but what it might mean for future cases sure the Due Process Clause of the 14th amendment is the relevant phrase here is pretty brief it says no one shall be deprived of life liberty or property without due process of law and that it's from that phrase that we get this doctor and that Ric is referring to called substantive due process the idea is that this this phrase this vague phrase contains within a protection for certain substantive rights so it is that portion of the Due Process Clause that the court has relied upon in finding a right to abortion for example so in locating rights within that phrase and the equal protection clause is also relevant here as well that no state shall deny to anyone any person equal protection of the laws the court that is a particularly controversial area that substantive due process area because it is an area in which the court that the in which the court says for itself what it thinks those rights are based on what it thinks contemporary values are at the time so Justice Scalia was now a fan of substantive due process because he felt like listen it says no one shall be deprived of life liberty or property without due process of law that's a procedural guarantee about what happens to you before your property or your life is taken away for example that it doesn't contain a substantive guarantee saying that you know the state has to provide you certain guarantees or the state through legislation can't do certain things so on obergefell and this is the New York Times headline problem I think is that case got reported and as I heard my students even talk about it even in law school even after they'd become kind of acculturated to some of these things people were presenting it as a vote on the court for or against same-sex marriage but that's a that's not what the opinion was about what the opinion was about was who gets to decide whether we have same-sex marriage or not with the majority saying that it was a right guaranteed by the Constitution and so therefore states were not free and I mean that Odysseus tying himself to the mass sense that states weren't free to say that marriage had to be between a man and a woman and the dissenters weren't taking a view in fact Chief Justice Roberts dissent was very explicit about that he said you know those who want same-sex marriage you know you have every right to to lobby and state legislatures to make that happen but the dissents view was that it wasn't for the court to decide that the Constitution didn't speak to the question and so that it was a change that should occur through the legislative process and indeed many states were already moving in that direction and making legislative changes so I think obergefell and and what we're talking about for the future of the court it's really a who decides question people often ask and Rick and I talked about a little bit a little bit about this yesterday well in what cases might we expect to see this controversy of who decides when would it matter if if flurry Clinton wins one example would be that the court in a case when justice rehnquist was the chief decided that there was not a constitutional right to die and it reached that decision it was a substantive due process case interpreting this phrase no person shall be deprived of life liberty or property without due process of law but the methodology that the court adopted there said ok we will recognize that there is maybe some substantive component to that guarantee so we'll recognize something about substantive due process doctrine but we will only recognize a right as one that's protected by the Constitution by substantive due process I'm not talking about the First Amendment Fourth Amendment and all that I'm just talking about the abstract rights that the court has found in that substantive due process doctrine the court said we will only find such a right if there has been a long tradition in America see where the winds are blowing right now in society we will look at American history and American traditions and say yes this is a right for example early substance of due process cases dealt with the right of parents to educate their children that would be a right where the court could see you know that sort of firmly rooted history with the right to die the court said there has been no long-standing tradition in America of protecting a right to die and so we will not recognize that right I could imagine that case coming out differently and that precedent being overruled if Hillary Clinton is president because as we all know there's a big push now and I mean we see this and other countries we see it in Canada we see it in different European countries we've seen a big press for it in the United States a press for a right to die and I think that's going to be an issue when when legislative change is slow because people increasingly see the court as a political institution when they can't accomplish things in the legislature they try to litigate it and then declare a fast Rin through the court because I think it's faster to get it through the justices than to convince their citizens and citizens in the legislative process so that's an example where the methodology of who decides matter you know if we're going to have assisted suicide if we're gonna have right to die some states have already gone that route the question is is that something that people decide on a state-by-state basis or does the Supreme Court impose a national rule that tells some states you're not free to make it illegal to commit suicide that's really well put I can tell you in in our public policy class I tell you our students we're having this conversation right now and and the example you gave on right-to-die is a real-life one one of my own and I admit that a lot of people may disagree with this position but one of the reasons I personally get concerned about not tying substantive due process to history and tradition is that then policymaking to me can become very unfettered based on just whatever you happen to think for example in the future and this is more hypothetical but I could see it happening the case comes before the court in the future and it's a substantive due process case and what is you get five unelected lawyers who disagree with four unelected lawyers and it could be is there a fundamental right to health care is there a fundamental right to a living wage is there a fundamental right to housing and in our class we talk about this these may all be terrific public policies and maybe Congress should pass a statute or maybe the president should go to Congress but the question that you raised earlier is a really big one and that it to me is that who sets policy for the country and does judicial and the effect of judicial philosophy on setting that policy so can you can you comment on how you see that may be impacting real-life cases beyond right-to-die yeah um I think let's see so sub I I think there are a number of areas I can just tick off a couple quickly in constitutional law where that who decides issue would be big and I actually think there's some in the statutory context that would matter a lot as well I think the death penalty is likely you know the court the court has had an uneasy relationship with the death penalty for a long time it came very close to holding the death penalty constitutional in the set in the late 70s early 80s and then as the court came back the states states that one of the death penalty really pushed back and then the court retreated I think there's a question of who decides there is that a state decision is that a constitutional decision I think right to die I think abortion I think people phrase the abortion question when they think about the Supreme Court as is Roe versus Wade gonna be overruled well versus way it actually isn't the law it was superseded by Casey versus Planned Parenthood but we've had you know 30 plus years of a court that did take you know on the whole a more conservative approach to the judicial role in Roe versus Wade Casey versus Pennsylvania left Roe largely intact reinstated a new test but still there I don't think that abortion or the right to abortion is would change some of the restrictions but I think some of the restrictions would change I think that's what we just saw last term in the case out of Texas states you know after the Kermit Gosnell affair and all of that states have imposed regulations on abortion clinics and I think the question is how much freedom the court is willing to let States have in regulating abortion I think the question of you know the court has held that in some circumstances states can render partial-birth abortion illegal very late term abortions I think that's the kind of thing that would change I don't think that the core case that grows core holding that you know women have a right to an abortion I don't think that would change but I think the question of whether people can get very late term abortions you know how many restrictions can be put on clinics I think that would change I think another area which people often overlook is statutory justice scalia cared a lot about statutory interpretation and this idea it's similar to his idea it was of a piece of his view of the Constitution which is that when Congress enacts a statute the words matter you interpret the words as they're written and if Congress made a mistake I mean I'm not talking about you know a scriveners error but if Congress didn't anticipate everything that would unfold you know if the circumstances change the judge doesn't have license to change the statute that is a who decides question that it falls back to Congress I think a lot of the cases that we're going to see coming to the court now are involved statutory interpretation the court just took up that transgender bathroom case from North Carolina that's a statutory question that's a question involving the interpretation of title 9 which prohibits educational institutions that receive federal money which you know all almost all of them do from the Department of Education from discriminating on the basis of sex and the Department of Education and the Department of Justice you interpreted that phrase and telling North Carolina in that case that it had to permit physiological of someone who is physiologically a boy but identifying as a girl to use the girls bathroom that is a huge shift right and this is why it's made the news that would be a big shift and it's a shift from the prior interpretations of that statute which said separating locker rooms and showers and bathrooms on the basis of gender were okay that's a big shift and it's a who decides questions so that's pending on the court and and you know there are a lot of reasons why might one might say that's a public policy debate people will feel passionately on either side about whether physiological males who identify as female should be permitted in bathrooms especially with our young girls present and we've seen all these debates it's a coup decides question when title 9 was enacted it's pretty clear that no one including the Congress that enacted that statute would have dreamed of that result at that time maybe things have changed so that we should change title 9 maybe you know those arguing in favor of this kind of transgender bathroom access are right that's a policy debate to have but it does seem to strain the text of the statute to say that title nine demands it so is that the kind of thing that the court should interpret the statute to kind of update it to pick sides in this public policy debate or should we go to our Congress should we go to our legislators and say if this is the policy that we want to have now now we have new recognition of the rights of transgender people and we want to shift the policy is that kind of see change the sort of thing that should come legislatively or from the court and I think we're going to continue to see cases like that there's another case pending about doctors I don't know if you follow this Peter there's a lawsuit that's been filed because HHS relying on that same language in title 9 has now interpreted the Affordable Care Act to require doctors to provide transitional surgeries and not discriminate if doctors and hospitals including Catholic hospitals receive federal funds which they all do because of Medicaid so do we have some questions from the audience I was asked early can we just maybe read them or do you have some actually give the microphone to some people for some of the people sure sure I will we have some questions from the audience do you have a question Richard go ahead microphone we've talked about all these cases on the due process but there are other you know amendments that are you know that are you know you have the whole concept of starry decisis and out how do you view the court role in things like the First Amendment case you have the you know the Citizens United which you know both sides are arguing right politically not legally and you know I guess it's a hell are case in DC about the guns so you have all these different amendments right which are far from the 14th but they they have settled reasonably settled law and we're we're how does that liberal conservative apply in those kind of cases which are relatively settled well citizens united in Heller are both fairly recent so I think the court started as Isis the court is always at pains to say that star decisis is a matter of policy not an extra Bowl command is the language that it uses so while the court star decisis is the principle that the court will generally not disturb the cases that it's already decided unless it has some good reason for doing so and I think that citizens united and Heller would both be vulnerable if if Hillary Clinton wins because they are cases which you know in which the dissenters in those cases who will still be on the court at those cases are revisited felt passionately that the court got it wrong and that is one of the factors that the court considers and whether to abandon a prior case the reality is that Heller because Heller protected the right to have handgun in the home but it didn't say that there couldn't be other restrictions on guns and the court has been giving a lot of leeway to restricting guns I don't actually know if there would be as much interest in getting rid of Heller in particular because most gun restrictions are still standing but Citizens United I thought would be a pretty easy target professor raised a really interesting question on this statutory construction issue I think many people including myself tend to think so much about the Constitution itself that is there a liberal or conservative approach to statutory construction and one good case I think to maybe touch on briefly would be King versus Burwell a good example that is not a death penalty or social issue case but healthcare you remember there were two big challenges to the Affordable Care Act the first one in National Federation and the second one on statutory construction and clearly wasn't there a liberal and conservative divide and how to determine whether or not there is a federal or state exchange can we come in on that but also in the sense of what this might mean how a how a court of one persuasion of the other can have such a profound public policy effect sure so King versus Burwell was the second challenge to the affordable care act and it was a statutory challenge not a constitutional challenge basically the statute the affordable care act provided sir subsidies that the tax subsidies the language of the statute said that you got them when you purchase your insurance on an exchange established by the state and state was defined in the statute to include the 50 states in the District of Columbia it distinguished even between states and territories Congress when it enacted the statute anticipated because of the Medicaid pressure the Medicaid deal in the statute that all stat all states would adopt exchanges but then as we know the end of that story many states resisted adopting exchanges so the government the federal government had to set up some exchanges and then the question was well gosh the people who have purchased their health insurance from the federal exchanges federal exchange wouldn't qualify for the tax subsidy and that could have a disastrous effect on the statute Justice Scalia like the text of the text list approach was okay well maybe Congress didn't accurately foresee what was going to happen Congress doesn't have perfect foresight or maybe Congress wanted this to be part of the pressure Congress didn't really want a federal exchange because it looked too much like a single-payer system so maybe this was an unseen bargain maybe what they wanted to do is pressure states to take the exchange that the fact that their citizens wouldn't get the subsidy if they had to go to a federal exchange would have been some pressure creating and putting pressure on the states to actually set these exchanges so Justice Scalia basically said well this is what the statute says and now that events have unfolded so that it seems like this isn't this is going to have some bad effects for the Affordable Care Act we can't go back and change what the statute says but the other justices disagree kind of a pretty good example of the difference in construction between the two did you have a question in the in the first affordable care act case yes the this yeah National Federation of Independent businesses there was a heavy statutory construction and component to that case to because this is not a tax right the individual mandate but the court in an effort and the court and a good way tries to avoid constitutional questions but the the controversy in that particular case was that to avoid the Constitution they very creatively interpreted the statute to be a tax question from Eric Smith Amy we have a question in the back from mr. Smith thank you how awesome it is to have a professor here from Notre Dame that worked with the Great Justice Scalia and thank you Rick and the Public Policy Institute for having her here and making this possible I was an elected official here for 25 years and arguably the poster child for term limits but I want to ask this question I and that's a wonderful law students when I was a professor and and we got the impression and working working with the cases from Justice Scalia that he held people like me legislators Congress congressman in in low esteem could you just disprove that and it's it's okay if you don't but he didn't seem to have whole congressmen and legislators in the highest esteem that's my question thank you so much Wow um let's see he was not a fan of legislative history to be sure so he often took aim at legislative history I never heard him disparage legislators at all I mean I think that he did sometimes question a number of the courts doctrines call for giving deference to the constitutional judgments made by legislatures and I do know that towards the end of the lot towards the end of his life he had expressed scepticism that many members of Congress spent much time contemplating the Constitution and whether statute was constitutional before they enacted it I don't know that he had I mean he had great respect for the democratic process so I think the the logical conclusion of that to me would be that he also had great respect for those who represented us in the democratic process press appear to have one last question and I'm gonna ask you for some closing comments if you would here's the last question actually is it asked you to look a little bit into your crystal ball in one of the presidential debates the two candidates were asked about appointment of justices and what their concerns were for the future what their priorities were Hillary Clinton talked about abortion and citizens united Donald Trump talked about gun rights and Heller and there's a tendency of course to look at those social issues in particular with a lot of emotion but beyond those cases looking to 217 and beyond what are some of the significant matters that you think will come before the court and where the composition of the court could matter to the outcome sure um I think right to die I said we've touched on some of them already I think the statutory cases will be big I think these title 9 interpretation cases I think religious exemptions are gonna be really big I think you know that was the Hobby Lobby case that Notre Dame was and the Little Sisters of the Poor were among the religious institutions challenging the application of the contraceptive mandate California as a state has mandated that all ensured all employers and insurers provide coverage for elective abortions and they can do that as a state because the the only thing that the only basis for that challenge at the federal level was the Religious Freedom Restoration Act we're going to continue to see those challenges there's been a conscience exemption to doctors for performing procedures abortions or some of these you know transitional changes performing mastectomy x' on women who wanted to transition to men there's been a conscience for doctors to this point this lawsuit I was mentioning challenges that that's that's being kind of dialed back so I think on all of these things these are kind of hot and heavy matters of public debate that we disagree about you know that citizens are trying to persuade each other one way and another and I think the question of who decides those questions whether they're left to the electorate or whether the court and administrators decide them is big those are some great comments you've kind of you've kind of gone to my last which is we're out of time for tonight but I wanted to ask if you had any given this historic point that we're at I think the people this room would all agree this is a unique and historic time that the election on Tuesday will be very consequential people are talking about a lot of areas but particularly for the people in this room in terms of the court and the direction of the court and issues will be decided you have any comments as a constitutional law scholar and professor and maybe clerked for Justice Scalia's to your thoughts about the future of the court and where we're heading gosh it is a consequential moment and the who decides question just as a personal matter is really important to me and so I guess I I worry a lot you know about the who decides question about our decisions you know and my voice is kind of getting taken away depending on on what happens and and and that could be true you know and either candidates selection of nominees but that I think is the question for me well I on behalf of the Public Policy Institute I have a little special presentiment I hope all of you will agree with me that this has been a terrific evening with Professor bhaer would you all agree and we have two gifts for you it's so nice not to be in government anymore where I can do this this is one that will remind you of our Public Policy Institute and this is something that we hope you just find this nice but I will say I hope all of you had agreed that this forced Hesburgh lecture was a very good one I hope you've enjoyed the last hour don't forget to vote thank you all very very much [Applause] [Music]

Channel: Jacksonville University

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Id: 7yjTEdZ81lI

Length: 55min 7sec (3307 seconds)

Published: Mon Dec 05 2016