Law of the Land

good evening everyone I'm Thane Rosenbaum I'm the creative director of The Forum on life culture and Society at Truro University and welcome to law of the land this is for folks one of our fan favorites every year it even during the pandemic and we're back at the 92nd Street y last year we had it here before butthole got renovated which is awesome and this has always been a fan favorite you know folks we have film series conversation series idea series book series we have the film festival and yet law of the land it's every year people all last week people were calling me with questions uh conspiracy theories I'm not going to share them with you um it's sort of a homecoming every year we do it this is like the eighth or ninth year that we've done it here it's like a rotating cast some people are sort of permanent members this is sort of the a team and it's a homecoming of sorts uh Bill trainer to my right is the dean of Georgetown law school he's also a this is you don't even know why you're applauding yet I'm going to tell you now it's you all jumped it because you're Georgetown people but I was going to give you the real reason the real reason is folks was created 20 years ago by Dean Trainor when he was at Fordham law school and and yeah yeah yeah it's true he's done some good things at Georgetown but this is still the best thing you've ever done this is for my marriage this and Allison and the children and Thane or um bill is also one of the leading constitutional law Scholars on legal Theory and legal history so he's perfect for this and so we always welcome Bill back um we have with us Adam liptak from The New York Times he is uh Adam you know uh is long time serving uh Supreme Court correspondent uh covers this beat all every single day before that he was the national Affairs legalist correspondent for the New York Times and I have a little anecdote for you uh the very first event that we did back in 2007 2007 uh it was an event with Tony Kushner and El doctoro and we talked about why artists are obsessed with the rosenbergs the Rosenberg trial the Rosenberg execution and so we brought in uh remember Tony Kushner wrote Angels In America which Ethel Rosenberg is a character and El doctoral wrote the Book of Daniel which is a book a novel about the rosenbergs Adam liptak covered that for the New York Times and it made the front page of the art section that's how we started out and and this guy I don't know if he remembers it he he and I were high-fiving in the hallway the whole day the next day the coolest thing so anyway Adam we love you thank you and Adam has been a guests of folks many many different times and he's been returned even in other uh programs but certainly for law of the land um we have Dalia lithwick with us dial lithwick yes ah uh Dahlia is um what can I say uh you know she too has been with us from the very first of the law of the lands we were reminded even before there was a law of the land we did another kind of event with legal journalists with Adam and Dahlia and some others uh Dahlia is a senior editor at slate you see her on MSNBC covering the courts and legal Affairs she's the author of a new best-selling book that's been out about a year and I know this because we featured the book uh Lady Justice on one of our folks events she was amazing in it so you should go to folks.org and you can watch Dahlia and you should also buy the book Dahlia lithwick thank you Tiffany Graham is with us Tiffany Graham is a constitutional law scholar uh at Toro Law Center and she and I are colleagues and we have her every year she's she's the one constant so Tiffany great thanks for coming back and lastly someone who's new to our stage Rod Rosenstein you may remember Rod was the deputy attorney general in the in the Trump Administration he oversaw the Mueller investigation in the Russian meddling in the 2016 election he was there's some interesting anecdotes about rod in addition being a long-term career public servant in the Justice Department he was for 12 years U.S attorney in Maryland and ready for this for the entire eight years of the Obama Administration he was the U.S attorney in Maryland he was the only person that Barack Obama did not ask for his resignation he stayed on Obama said you know what I want this guy so he stayed for the entire eight years he's the only one that I know that Obama did that with now I'm gonna like to give some moment just to let this settle in for a second he's a Republican I just want you I know I know Donald Trump is profoundly unpopular I don't think he liked Trump either so you should know that uh I think I know this is 92nd Street why but just just give them a chance just give them a chance show some decency and Rob Rod let me tell you something Buddy you didn't tell me I was going to be heckled here let me tell you something Buddy you pull any Republican on this stage Kevin Greene is our security head here he's built like a mountain he will have you on the Acela in minutes I've been forewarned all right just all right uh before we get to some of the cases I thought there's so many cool things preliminary things to talk about for instance and I want to start with Adam liptak on this and we all jump in it's a free-for-all we still don't know who leak Dobbs and I just don't understand how that's possible we're talking about what 50 60 people are possible candidates they're not that athletic you know there are law clerks and judges they're not that agile I don't see how we don't know this and Adam you don't have like a deep throat at the New York Times nothing like that no inside person how is it possible that we still don't know and we probably won't know well you know I can't talk about my sources uh when National Security matters are leaked and you get serious professionals trying to run down those leaks they very often come up dry and if you put the Supreme Court Marshall on the keys who doesn't have any particular forensic skills you're likely to get the same result I was going to ask Rod about this because I read that very point whoever's phone that is please stop that uh seriously please don't you know this is not the place for that um Rod I I read and I didn't understand it there must be some protocol that the Marshal's office does this and not the FBI now I remember the fugitive with you know Harrison Ford that was cool but I don't think of them as investigators why if you when you were at the justice department could you have called chief justice Roberts and said buddy we investigate for a living the FBI let the marshals let the marshals do what the marshals do let me in on this I think the FBI has enough on its hands you know the challenge would be saying that the FBI investigates crimes it's not clear this was a crime and so it wouldn't necessarily fall in the FBI's jurisdiction I see so so is that the point that last point that uh Adam made is that a point that makes sense to you that you wouldn't expect Marshals don't do this for a living so you can imagine that this is not something they might come up with some quickly true although I also would point out Adam mention National Security cases you know Finding leakers is a lot harder than it sounds and if you think about a scenario like this where somebody might have taken a hard copy so there's no electronic Trail and handed it to one reporter you only have two witnesses and so it can be pretty challenging to solve that kind of a case last year Tiffany we started with you and ended with you because of the new andly appointed Justice uh Ken katanji Brown Jackson and you may not remember this but we all remember which is you went all fangirl on us right you you were upset that you didn't make it to the Harvard reunion you wanted a photo with her you were jealous that was on Facebook you weren't on it uh you know and and that was cool because like that was like trading baseball cards like that you this was your how was her rookie season amazing um I just think that when you look at the way that she really just attacked the court and attacked on the job this year you can tell that number one she really had so much comfort um she jumped into the questioning during oral argument um she did something that people didn't expect she jumped into originalist inquiry um and then she also wrote single descents um you know you you compare that to John Roberts and I read today that it took him 16 years to write a single descent and she did it in her first term so I mean this is someone who's extraordinarily smart extraordinarily confident she's a boss I mean I just love her so I want to talk to you that's a I want to talk to Adam and Dolly about this because it cuts to something that I know Adam had mentioned once in one of the law of our lands most people don't realize right that up until very recently you could like justice Thomas go decade and never ask one question and that's okay that there are some justices that jump in early and some justices just don't ask any questions and it's because of the pandemic right Adam I think you explained it maybe you could briefly explain the pandemic changed the rules and it actually forced out some people who might not have spoken I don't know if that's what explains this I think I have a different idea about what explains what's judge uh Jackson but tell the audience so during the pandemic two things happened both of them very revolutionary at the court one they initially heard arguments by telephone and they had to give up their usual free-for-all format where people are jostling and trying to get their questions in and they went to a one by one by one seniority system set of questions and that among other things had the uh effect of getting Justice Thomas who hadn't talked for a long time and very rarely to start asking questions and I think everyone agrees that's a good thing then when they come back from the pandemic they like this well enough that they're going to have both their free-for-all format and then the one by one by one that has the incidental effect of making the arguments preposterously long and the affirmative action arguments lasted for like five hours plus and you can ask questions about that but getting everybody in the mix is a good thing the junior Justice is especially apt to try to talk during arguments because it might be her only chance to influence the other justices because when they go to their private conferences they speak and vote in order of seniority and by the time it gets around to Justice Jackson it may be that her points are pointless because everyone is already dug in so it makes sense to try to raise your points and argument people have the misimpression that Supreme Court arguments are an attempt to elicit information from lawyers not true it's an attempt to talk to your colleagues and make points it's the first time they've discussed the case and as Tiffany says justice Jackson unlike other justices who say they will sometimes spend years trying to find their feet on her second day of argument she was making very pointed originalist Progressive arguments about the 14th Amendment so Tyler you wrote Lady Justice this this is not in your book but it's the perfect segue here I wonder whether you have something to say about the fact that it was also true of Sonia Sotomayor that it was noteworthy that she too early on jumped in and I remember there were some stories about who is this person and I Remember by the way nice little anecdote that day that you covered the El doctoro thing with Tony Kushner you know who's in the audience that day if you don't know that Sotomayor no one knew who she was and you didn't know she was there either I found out later someone said how do you know Joseph says why a judge at the time she was just a federal judge here in New York and she was there and I said wow that woman decided to come out to hear Tony Kushner an El doctoro talk about the rosenbergs that was what she did that night and guess what a year later she was on our stage but it just shows you that little Six Degrees of Separation but I will say this when I had her on this stage I said to her I said you know there's some people that wondered you know you jumped in really early and you started you know jumping I didn't want to offend her and she said she said you see your audience right here at the 96 why she's I'm a Puerto Rican girl from for the Bronx you think I'm not going to talk in a room you know it was got a big laugh by the way uh but do you think that there might be something to be said about women power on the court that there is we we have our turn and we're not waiting for our turn and I think just does their data point is that um the other person who got a bad rap for talking too much too often when she came on the court was Justice Ginsburg who was also accused initially of being way too forward in presumption now do you think this is a double standard or do you think that men were men didn't do this I mean yes it's a double standard and also I think um there's something profound that happens when you know this sort of goes to what Adam was saying that you're going to be on the losing side of a case before it starts because the other thing that happened in kovid is that people could listen in real time to oral arguments we we didn't have that we had same-day audio I think tragically on two or three cases a year and that was determined by the Chief Justice and for people to be able to listen in to sit in their cars and listen to C-SPAN I mean what was phenomenal and this goes to Tiffany's point was that in her first week out the shoot we had justice Jackson pretty much understanding not just this is my only time to influence my colleagues it's actually the only time to talk to Future uh uh lawyers and law students and young people about the original public meaning of the Reconstruction amendments and so I think that there's something very very important about having audio and I think that some of what we're seeing now is the justices realizing if I'm going to be on the losing side of this case I'm not waiting until the last day of June to write my dissent I'm going to put these ideas into the public bloodstream so that folks can and that really happened I think and to your point about influencing things I think that the story that she told during the affirmative action case about um the white kid who was a Seventh Generation North Carolinian and the black kid who was a sixth generation North Carolinian and the role that race may have played in both of their lives and um why can't UNC take account of race given the fact that um you know the lack of opportunities for the black kid um obviously impacted his family's inability to go whereas discrimination helped the white kid that may very well have impacted John Roberts little you know the little crack that he created in the majority opinion where he said you know students still have the opportunity to talk about the role that race has played I mean like in their in an essay yes in an essay that may very well have been her influence just by bringing that up a lot of moral argument Rod ethics inquiries uh I don't know whether this ever in your mind would have been something that's a justice department I think it's important to raise questions about three branches of government we have a legal historian on our stage Justice Roberts chose not to testify in Congress he was asked to speak uh I I didn't expect that he would uh who's in charge the Supreme Court only recently is abiding to a new set of rules when Justice Thomas says I'm just doing what people did when I got here when I got here I asked people if someone invites you to a vacation do I have to report that and he's saying they told me out I was a junior I was associate Justice and I did what they told me as how does this play out from the the Justice part would never be called into this right this well potentially not not for the kind of allegations that have been in the media recently and there are really three issues here the first is can you accept a gift the second is do you have to report or disclose the gift and the third is having taken a gift do you need to recuse from the case and those issues often get conflated but they're really three distinct questions that are raised and there haven't been any issues with regard what who decides their accusal how does that what's the standard well the the recusal standard for the Supreme Court is actually left to their discretion and that's one of the issues that has been the subject of some discussion and there are really good reasons for that the good reasons for the threshold for recusal to be high on the Supreme Court because you think about what strategically could be done if Supreme Court Justices routinely recused for example Ruth Ginsburg had a husband who was with a major law firm and if if her policy had been to recuse every time her husband's Law Firm had a case before her clients would have strategically chosen that firm in order to balance Justice Ginsburg off the case so so there are reasons for the court to have a high threshold but the the short answer is that that decision about whether to recuse from a case is left to the Supreme Court Justices with no oversight and no enforcement so Bill I don't know if you want to jump in here from a historian standpoint I was thinking about this in connection with an essay I just wrote I had forgotten that Abe Fortis Who was appointed by President Johnson and in fact after he was an associate Justice Johnson wanted to appoint him as chief justice apparently he was a major advisor throughout the entire Johnson Administration and I think for this room Fortis should be remembered for two other reasons one this is the ymha he was Jewish and more importantly way more importantly he was a great violinist and would have apparently did you know this every Monday night in all of his years did you know this is great every Monday night he played in a chamber orchestra of high quality musicians every Monday night and so downstairs he could have been he could have played at the Kaufman Auditorium uh he was he was forced to resign Aster resign for financial impropriety during the Nixon Administration for not a gift but accepting a payment I don't even understand what that was he was he given a speaker's fee what was it that he ended up in you know I assume that was a situation where the justice department in in the Nixon Administration was involved how I don't even understand how this happens who who gives them the talk it's time for you to leave so um so Johnson nominates for us for the Chief Justice ship right and they're very close uh and as a matter of fact Johnson kind of pushed Arthur Goldberg off of the Court ah so that he could give a Fortis who was like this big buddy of the seat and he said by the way the Jewish seat on the Supreme Court Arthur Goldberg left to become this ambassador to the United Nations and was replaced by a buddy of the president yeah I mean you know he was brilliant you know I mean you know Fortis was really an extraordinary lawyer it was a Yale law professor it was it was a law professor you know he was a leading DC practitioner uh so you know just incredibly revered as a as a lawyer but he was also very close to Johnson and I think actually argued I think the 48 election where Johnson Landslide Johnson he kind of snuck into the Senate by kind of illegal ballots by 80. I think eight forties black to enjoying the vote count yeah yeah I got another vanicload thanks for reminding me a great anecdote he argued uh Gideon versus Wainwright right right right right so we argued Gideon so he really was a legend very close to Johnson many many years we have like Gideon versus Wainwright right to council just most of the room is civilian for those who are not civilians time to tell you something hold on Bill okay uh the first CLA code right now this doesn't look like Bingo here at Budweiser Hall uh 92 ny8 if you're if you're online now and you want you've got to tell them and if you're here on your phone 90 to Nya keeps you in the running for your CLE credit go ahead bill as a former member of the New York CLE board make sure you get those letters right um so anyway so Warren steps you know announces he's going to retire Johnson pushes forward nominates Fortis uh and you know but it's very controversial and that's actually an example of kind of a late nomination that's blocked in the Senate because it was like a filibuster or something yeah and uh Homer Thornberry was actually the uh nether Johnson crony who's going to name to the court and then you know Nixon comes in and you know and then the investigation of and I think so they didn't actually investigate him during the Johnson Ministry during the Nixon Administration It's actually an amazing story because um Nixon actually wants him out and Nixon dispatches his justice department to go and visit Warren so that there's actually like a car that pulls up to the Supreme Court and they're saying you know here's the dossier here's what's going to happen and Warren is so alarmed by what he thinks or these and just it's a lectureship he accepts right it's like kind of it's not the glacier that's what it was it was a lecture a sponsored lecture 20 000 bucks I don't know how much so that's what it was it was 20 000 bucks but twenty thousand bucks was a lot no no I understand but it's not it's not a uh there's nothing illegal about it but it's also somebody who's been subject to security it was violation that's right so it's not right it was somebody that the SEC had had gone after after but it's Warren who says right this is his friend and he gets the court together and they push him out and so the analog today in some sense would be the Chief Justice would have to have to sit down saying we're all sitting here together this is bad for the court so it's Warren who did it but you know think about what a difference that makes you know I mean that would have been a democratic seat and it became a republican seat right yeah and you know and Forest didn't have to go I don't think he would have been prosecuted you know he was just kind of pushed out the door and that really you know think about all the five four decisions that's a big deal yeah the question is do we live in a different time we shouldn't spend talking about this but I'm just curious do we live in a different time in the age of social media where everyone is you know even Supreme Court Justices we seem to know nowadays in the age of the notorious RBG we tend to now even know what they look like by the way I remember when we did that first event back in 20078 I remember one of the things we talked about was no one knew what any of them looked like and looks a very big difference from 2007 to 2023 that now we actually do think we know them I wonder at whether Thomas would say I'm not going anywhere I'm sorry I'm not going anywhere or Elita would go thank you very much but I'm not going I'm not giving this up why would they not why would they go right but I'm saying Fortis didn't have to go right and he did no I mean it's a very different time yeah I'm just saying that you can imagine there was a certain sort of sense of respect of the institution that might have said to Ford I'm not fighting about this if you want me to go I'll go yeah I mean Nixon would not have you know today Nixon would have burned the tapes right exactly all right um good good point um can I can I just say one other thing I think what you're saying braids so beautifully into these questions about the legitimacy of the Court which is sort of the way the term started right with Justice Kagan and Justice Roberts sort of taking extracurricular pot shots at one each one another about how whether it's proper to talk about the legitimacy of the court and actually you know that's how the term ends in some case uh in some sense because that's in the debt forgiveness that's the majority in The Descent same two players taking pachas where they're essentially saying don't think we hate each other well and also that the legitimacy of the court is our business and it's not for the children and I just I'm sorry one of your articles I think you talked about these one of the people we interviewed said arrogance a certain level one of the people I think you interviewed for one of your articles yes talked about that it comes across as a kind of arrogance yes but I I just think like I would I would connect that back to you know sort of Bill's point about how it's different now is that there is no question in my mind that when the justices sat down with Abe Fortis and said you are hurting this court that fell on very different ears whereas today when you have Justice Kagan saying you know or even the Dodd's dissent saying we are hurting this court right what Sonoma calls the stench like it or not like it that's met with I don't care you should make the point in a slightly more General level there used to be this idea that ethics was a neutral principle that applies to everyone equally and now ethics itself is a politically polarized issue I see well it goes to that's right that that is a great point and it leads beautifully to this question which is the polling numbers have never been lower I think I just read NBC poll 40 of Americans have a negative opinion of the court and 53 percent an ABC poll 53 percent said that they believe that the decisions are strictly on partisan lines right so those are wrong I mean and what people don't recognize is the large degree of unanimity on the court of the 58 opinions issued this year 50 of them were actually unanimous 9-0 88 of the opinions included at least one of the liberal justices in the majority so only and only 12 percent of the cases which is a total of seven cases this term were all three liberal justices is in The Descent so you know the the reality is if you look at the big picture the court is not as fractured as it might appear they may not be the public may be wrong and we'll talk a little about this Adam actually wrote about this really well last week so I want to come back to it about this idea of like you know if you break if you do the numbers the what what Rob just said but but you know the the question is does the court care what the public thinks I know that you've said over the years that Roberts is an institutionalist right and he believes strongly in preserving that the Integrity of it but do you think that they care do you think that they read the paper like the sports page and say well they don't like us today that's terrible we got to do something to fix our our but I would say two things you know on the the big controversial issues they line up politically you know this is not and this is not the way it always was you know I mean I think if you look in the Warren Court you know there are people you wouldn't know how is Harlan going to come out how is black going to come out how is Stewart going to come out you mean it was much more ambiguity it was much more ambiguity you know it has become a time in which you know for a while was how is O'Connor going to come out or how is Kennedy coming out so you know but you know 40 years ago there was an incredible amount of indeterminacy whereas now on the big issues they line up now the one thing that you know that I would say that for me that's different from this term than last term is the last term is just like all hard right yeah right I mean every big case right and you know two years ago you know when we were looking at the term we thought you know it looks like there may be kind of three groups on the court you know there's the left there's the right and then the moderate conservatives right which would be you know the chief and um uh Tony Barrett and Kavanaugh right last year it looked like no right you know it's like six against three six against three but right but this year it looks to me like it's much more three three and three but isn't that huge that's huge I mean I I think that's what rod in some ways because I want to come back to that because I think that for all the talk it doesn't end and we'll talk about this it doesn't end great you know the last three decisions on six to three but if you really look deeper into this there are a lot of surprising votes like who knew this is going to get a rise out of these people who knew that Roberts is a liberal like your coach what are you crazy he votes 90 of the time with the majority decision right he's always in the money he's 90 of the time he's in there I think it was 95 this year is it 95 I'm saying I know you're saying he's not of course he's not a liberal but let me just say this the three Trump appointees are nowhere near as conservative as Alito and Thomas they're they're liberals compared to them but the court is six to three conservative of course he's almost always in the maturity that's math but he votes but he votes but he votes but he votes I mean Adam you you should jump in because that article of yours really doesn't really find your point and then Dolly will tell you the truth I'm just like I said it was going to get a rise so it's it's absolutely true that in a handful of cases the Liberals prevailed and not in Trivial cases the Voting Rights Act the Indian Child Welfare Act the uh bite administrations uh program to set priorities for immigration yeah the independent state legislature Doctrine all of those cases were wins for the Liberals but wins in a narrow sense because nothing got worse they weren't wins in the sense of moving the court to the left so it's a much better story from a liberal perspective than the last term but it's still not isn't this great the way I put it is not getting punched in the face is not a whim and like every one of the cases that Adam just listed right and this goes to Professor Steve ladick if you haven't read his great book The Shadow docket the way he says you can't run the numbers exactly the way rod runs them because there's not a one-to-one correlation between some trivial jurisdictional case and overturning affirmative action for the first time in 50 years right so we have huge cases and we have little cases and this is important the court has discretionary jurisdiction the court picks its cases so that whole data set is self-selected right those are not cases that the court had to hear and of the ones Adam listed I think the only one they had to hear was uh uh Alan right was the Voting Rights case up per second on that case so there's John Roberts who has done nothing for voting rights in his entire career writing the majority opinion in a case that may well deliver the house to Democrats so it you can't minimize it we're talking about the North Carolina case no no the Alabama family we're talking about the right this voting rights case right so and you know somebody who's always said race is irrelevant to actually say race is relevant in this case I mean that was I was stunned by it and to follow precedent when he didn't have to I mean Alabama teed that up to alter the law and offer up a race neutral interpretation of section two of the Voting Rights Act and he could have chosen to do that and he didn't do it so I absolutely commend him for doing that um I will also say to your point about picking their cases another angle with respect to picking their cases is picking the cases where they really shouldn't have chosen the cases by way of example the student loan case where there's no standing who's injured in this in that case certainly not the state of Missouri but they found an injury that didn't exist so I mean this is again like Rod I respectfully disagree with you because again it's about the quality of the cases where they it's the controversial cases where um the the you see the six to three decisions where you see it sounds like Tiffany what you're saying is over the last two years if you talk about Dobbs and the New York gun case and the EPA case with the Clean Air Act and then this year with the affirmative action case and the for student loan forgiveness case and the Colorado case with the gay wedding uh website website designer you're saying if you're six to three there the hell with the rest of the stuff right because this is so huge that if nothing you can do in these small other other cases might be interesting that you voted with liberals but those six cases over the last two years are so Monumental that we're not going to let Thane Rosenbaum say he's a liberal I don't want to say to hell with the rest of the stuff because that's not fair it matters that in Allen versus Milligan the Alabama voting rights case that Roberts in fact may have delivered the house to Democrats because we've got cases coming out of Georgia and Louisiana and Texas that are going to be impacted but I will say um as far as those big cases are concerned I mean Linda Greenhouse writes her article the other day where she points out very systematically the way that the Roberts Court has delivered on Republican priorities carefully and systematically for you know the course of his time as Chief and you know I know that it's rather cynical to think of it that way I mean you want to think about the court in an elegant and sophisticated way but just from the standpoint of brass tax the things especially in the past couple of years since we've gotten to the a six to three lineup the priorities that have been delivered by this court are extraordinary the way the Constitutional law has changed the way I have to change my notes every year it's really tedious and it's hard I want to get to that in a second and maybe bill you might want to jump in and say what the 333 means to you and why you might maybe not agree entirely with Rod but understand that something of significance has happened just to keep everyone up to speed just so you'll remember the Alabama cases a voting rights case in which you have a gerrymandered district new a redrawn map that somehow left out African Americans that they would only get one seat and the Voting Rights Act had been established essentially to protect against this kind of racial gerrymandering it just so happens that in over the last four or five years when we've done law of the land we've seen the court chip away at the Voting Rights Act little little things that drive law professors nuts small things so that's what I think Tiffany is really saying that this was a very surprising that he would stand up for Section two of the roading rights act because in the prior bunch of cases you saw the court shipping and chipping away let me just quickly then also add explain something else Tiffany said a moment ago when she said about standing on the student forgiveness case uh the debt forgiveness the reason that is the question is when 400 billion dollars don't go back to the federal government right that's the money that's owed by these student loans 400 billion dollars that's a lot of money the problem is the people who brought the case are staged they don't get that money it's not their money to complain about so why are you here that's when she said standing right she goes why would the case be even heard in the Supreme Court unless there was some kind of an agenda because it's not the normally it's not the case you would see and then I ending and I want to leave it to you now what you left us was at the end is this question that I think people who are taking CLE credit are curious about which is you know you're the longest serving Dean in the United States I thought the Supreme Court makes decisions incrementally like I didn't that all of a sudden seeing these sweeping overturning of cases we're not used to that right isn't that what really is going on gigantic shifts in the law that Force law professors to have to redo their notes because normally we're told the justices like to do very narrow incremental changes and now it just seems like hold on to your hats the last day of June is going to just knock you over and that has happened the last two years in a row but I mean I think it's more last year sorry last year that's totally the case right uh I mean every case was the hard ride case now I mean I don't think Roberts is a liberal and I don't think he's a moderate but he is an institutionalist right so if you think about Dobbs right he would have preferred that you chip away at Roe rather than just and he was trying to lure Kavanaugh and he was right I mean I think you know when we talk about what happened with the league I mean I've it seems to me that that was to freeze Kavanaugh you know that you know Kavanaugh well you're saying it's a conservative leak I think that's it you're saying that's a way of seeing it no I mean it seems to me that the only logical reason that I can think of for doing that is to freeze Kavanaugh you know that he would look weak if he flipped right so I have no idea who did the leak but that's the only I can't think of a liberal reason to leak I can't I I think I've I've said and I think I agree with your theory but there are other theories one of them uh well one is a counter Theory Alito says why in the world would we have leaked it wouldn't become law until actually issued and in the meantime all you need to do is assassinate one of us and it doesn't become law and you go well that sounds a little crazy but in fact someone did turn up at Brett Kavanaugh's house with the idea of murdering him so that's one counter argument the other counter argument is that abortion turned out to be great for Democrats in the election and this gave them a six-week head start on that yeah I don't think I don't think the Democrats realized how great it would be for them I mean that was that was remarkable but I I would not have guessed that it would be so powerful Tiffany I will say okay I have two thoughts on that about the way that this term turned out um one affirmative action is not Dobbs um people do not feel about affirmative action the way that they feel about abortion polling even says that that's right but I think it's worth pointing out that Roberts did what Roberts does he did not overturn Baki and gruder instead he just said that the use of race in affirmative action in this way is unconstitutional so he was very the we all know what happened he just was very um careful about the way that he did it and I think that um he kind of learned well I think the court learned its lesson last year after Dobbs so and I and I'll say something else too um we've got a really interesting case coming up next year the possession case in an election year it'll be interesting to see what happens right we have another gun case coming up next year maybe we'll talk about if we have a time which I doubted uh Dahlia I want red to talk [Applause] just follow up on that point though I I think that these I agree with Billy these are incremental decisions they're not as dramatic they're not necessarily as dramatic as has been portrayed you know the affirmative action case for example puts the country in the same posture as the state of California it doesn't mean race won't be irrelevant to admission decisions it just means decisions can't be premised solely on Race without considering other factors uh so I think that uh I I do agree with Bill I don't think these are as dramatic as they're made out to be now I would like to respond run so one last question before we get actually into something no I would really like to respond yes of course just for one quick oh so you were setting him up this was no no Heroes thing I do think this is the thing that I think we have to Grapple with in addition to what Tiffany said which is we have case after case after case whether it's Dobbs whether it's you know last year's case effectively doing away with the line between Church State without saying it doing away with Baki and gruder without saying it justice Thomas in his descent in the affirmative action case goes by the way they just overturned it because you know they didn't say it in the majority it's not just the sort of uh uh Cavalier batting away of precedent it's not just taking cases where there's actually no standing it's taking more V Harper having it become Moot and then say it's not moot we'll decide it anyway it's taking 303 creative which is an entirely hypothetical set of facts about something that has not happened and so I think you just have to look in the aggregate not just to sort of whether or not the these are saying why are they doing this I'm saying the way they are doing it is as consequential as what they're doing and I think sort of limiting yourself to the end product and saying well you know they're saying they're not taking it any further um the same court that is telling you that precedent doesn't matter can't say trust us next time let me just point out though that uh in the student loan case although there was an issue as to standing the the Court's rationale was that the state of Missouri would be out for 44 million dollars in fees so it wasn't a case where there was entirely without anybody agency that was separate from the state of Missouri the state of Missouri was out zero so I mean that's one of the things that you know that's one of the powerful points in The Descent good Tiffany I was also going to say realistically going to be contracts from the federal government that we're going to exceed what they were potentially going to lose from the cancellation of the student loans so I mean Mohela was going to make money from their relationship they weren't going to lose money I mean yes this is the Mississippi entity that yes they were going to lose money from the loan cancellation cancellation but they had all these they had so much more money that was coming in from the federal government that Mohela wasn't going mahila was going to be on the upside but the other thing that was so fascinating about that case Mohela didn't even participate I mean Mohela was so uninterested in participating in this case that when the Missouri attorney general came to them and asked for documents for the case they said no they forced the AG to use Missouri's Sunshine Law in order to get the documents Mohela had no interest in helping Missouri sue the federal government so I don't know Rod I'm going to go back to one last preliminary thing and then we'll go get into so many cases getting late to be still in the preliminary yeah it's a big year it's very exciting uh we are now hearing more and more about the shadow docket not everyone knows what it means it does seem as if it's an end run that it's an opportunity to get before The Supreme Court without there being a Full Slate of oral arguments and briefing the full battery of things that happen there and where you kind of get a decision about something without either I don't even think they author the decision right there's nobody's their name isn't even sometimes it's precarious so sometimes it so so we're told that this is a dangerous new precedent but I I just want to say when I look at this I think it's come up twice already recently where the transgender girl who's on the cross country team that they didn't they allowed her to continue to while her case is working through appeal thing you know if it's a sin Minister as it appears you would have thought for this the abortion pill in Texas the court didn't you think this conservative Court would have said that's right let's go with that Texas judge and let's Outlaw the abortion pill that's not what they happen they used the shadow docket to protect the use of the abortion pill in Texas while that case is going through and the transgender student is still running cross-country and you would have thought that a conservative Court would have said get her off that team you know she's a man right you would have thought that's not what happened so I'm wondering are we hearing this thing as a Fox News problem about the shadow docket or is this something that's something we is very unique Bill maybe you can weigh in how unique is this to the court it's something we really need to worry about I think I'm interested in Adam's thoughts about this too the the term uh is somewhat pejorative Shadow docket but there's nothing nefarious or Sinister about what the court is doing exactly the legal process sometimes can take a very long time and there are legitimate reasons why you want to get to it it's an emergency yeah right it's basically what it is it's an emergency we go to the court on an emergency Donald Trump used to do it all the time right he was constantly bringing cases on emergency petition if they reject it Adam Bill do you have something on this it's a big complicated topic but I think Amy Coney Barrett made a good point in one of the covet emergency application cases just as it's very hard to get the court to take a real case of merit's case you got about a 100 shot it should be extraordinarily hard even harder perhaps in this special setting where you race up to the court on a moment's notice on thin briefing with no arguments and then you get an order a week later deciding something very consequential and Justice Merritt said just as our cert process is our process for deciding when to Grant a petition seeking review on the merits is very difficult we should ordinarily stay out of stuff and that makes sense to me and I think they're a little chastened and doing a little bit better on that let's get to let's start with the affirmative action case we've touched upon it now let's get into some of these so I have two thoughts one is in the minority opinion such mayor makes a strong point that she doesn't say this is the end of the world but she kind of says it's the end of the world um uh we were told or we were reminded that in the earlier run-up you know there were a number of affirmative action cases that sort of started chipping away on 14th Amendment equal protection grounds at the idea of pure racial preferences and it stopped at something called what Rod said the factor that it could be used as a factor just like hockey or if your parents went to school here that's a factor why can't race be just one of those factors and the court essentially is saying no it can't because if it's 14th Amendment it's got to be colorful it's right it's not like hockey because hockey is hockey this is something else skin color is a 14th Amendment equal protection argument but but ner who we've already now mentioned as a was a Swing Vote many times apparently in an earlier case I can't remember it was Michigan or Texas I can't remember one where she said she said in 25 years we probably won't need this anymore so that was like 23 years ago so I'm wondering you know is there a way to back off and say you know maybe this isn't the worst thing or we have two Educators on this stage is this something that do you worry about this at Georgetown do you worry about the saturo yeah I worry about it a great deal you know I mean I think uh actually Georgetown submitted an amicus brief in the case and you know we focused on you know the Jesuit and Catholic Mission which was really about you know giving people a shot and opening up doors you know and that this you know prevents us from doing that right and then you know and the other thing you know just to think about you know that that's different from Dobbs I mean to some extent it didn't work out that way but the majority was saying in Dobbs this is a controversial issue let the states decide right with the affirmative action cases it's a controversial issue we will decide you know so California is you know has you know under the prior regime California could say no to affirmative action but New York could say yes now everybody's got to say no right so the consequences of that are huge now so two other things I mean I think the point so this is an example though of Chief Justice Roberts being an institutionalist right I mean I think if Thomas had written uh the opinion the majority opinion it would have been very different right so first of all he would have very clearly struck down gruder so gruder is the uh 23 year old decision that says in Michigan you can consider race as a factor Thomas clearly would have struck it down you know said that that's about and he basically says it not just basically he says it in the concurrence right and then you know the other thing that I think is very significant is you know what Robert says at the end you know and whether it's a response to Justice Jackson or which I think is probably in part because it's so laser focused on it but I think it's also a sense in which he's trying to say race can't be a factor but we're also not going to make it totally irrelevant and then you know what that last paragraph means so what he says is race can't be a factor but you can say we'd like to see an essay about the challenges that you've overcome in your life and if some of the challenges you overcome are that you've been a victim of racial discrimination that's an okay factor to consider so again I think that that is you know some opening that you know everybody will be trying to figure out how big an opening it is and there'll be a lot of litigation but again I think it reflects the fact partly Justice Jackson's raising that issue but also the institutionalist of Chief Justice Roberts couple of thoughts I have a lot of thoughts which I will not share all of them because time so first um Toro I would say that at the law school um so we are not in the lead School the law school's not in the lead school like Georgetown and where affirmative action in higher education really really is um relevant is in the elite schools but I will say that um I would imagine I'm not at our medical school but I would imagine that it's probably relevant at our medical school and um you know there is evidence that if you don't have um diversity within your within the medical profession that it can have very negative effects within um minority communities especially when you don't have minority Physicians who people trust and so that is something that I am extremely concerned about as a consequence of this decision so that is something that I have been thinking about something else that I've been thinking about too though you know when you ask the question you know is it really that big of a deal I think about the what people are calling the diversity the diversity trap and this just goes back to Baki um the fact that we weren't allowed to tell the truth affirmative action is not about diversity it's a remedial program and it was always a remedial program but we weren't allowed to be honest about that and it's a remedial program that is supposed to deal with the fact that I know people disagree with this but I believe this systemic racism is real it continues to have impacts in the United States and an affirmative action is a policy that is meant to address that and when you when you think about affirmative action and systemic racism in that way you cannot necessarily identify um specific wrongs that your individual institution may have committed but your individual institution exists within a context the context of historical practices that have existed in the United States and so you know having affirmative action in your Institution it's it Opera just really quickly it it matters within that setting and so these are some of the things that I think about as negative outcomes from having this decision so I'm just I'm unhappy in a lot of different ways I I just want to give you an anecdote backwards it goes back to an event we did here on this stage with Sonia such a mayor um because when you say the word remedial and you talk about Elite schools I'm not sure everyone understands what you mean which is it really plays a role in creating integration within within Elite schools and social IR when we had her that night she had just written a memoir if you read the book it's a really great Memoir and she talks about how when she went to Princeton she was in the first or second affirmative action class at Princeton and she grew up in a housing project in the Bronx she could not have been less prepared for what was waiting her at she jokingly says in the book I wrote like my mother spoke English like she that was her line She was That's how I was writing English and some teach them English teacher took her under you know and and she was put you know pushed driven you know to succeed but it is interesting when you think about remedial well what does that mean right because there was something in the Wall Street Journal just the other day about someone I think from the Manhattan Institute wrote about if it's really remedial what you really want to do is strengthen not not the Elite schools but strengthen the other schools right and so instead of people who may not be ready to be a physicist at Caltech but if they were to Georgia Tech they would become that physicist right so this is a whole new level actually Georgia Tech is very good you know I learned in Georgia Tech graduates out there I just was playing with the tech is it Virginia Tech good just help me out I just think this I have heard this argument before we're not in Atlanta yeah well no I mean Thurgood Marshall went to Howard America one of America's truly great lawyer jurists went to Howard is are we better off would we have been better off if if he had gone to Harvard then Howard well at the time Howard was extraordinary because of Jim Crow I see good point and and just you know the other slate fly in the ointment here in addition to the little loophole left for you know you can tell us in your essay about your racial background if you do it with your mind um which is that like we don't know what that's going to look like but you can do it best of luck there's the Corvette for military schools and the carve out for military schools does not get explained the Chief Justice says none of this applies to military academies but I'm not telling you why which raises kind of the question wow if the pipeline to the military needs to be diverse for all sorts of important unarticulated reasons it would be an answer to your question about why awesome and also with that you know you can talk about it in the essay number one it's going to you're going to have a situation where guidance counselors in very sophisticated schools sophisticated guidance counselors they're the ones who are going to tell the kids okay this is how you craft the essays but in the schools where the guidance counselors aren't that great they're not going to convey that message but two what you're doing is you're setting up a situation where kids who are in pain have to turn their pain into a performance and it's not going to be okay all right I'm gonna I'm gonna quickly get through two cases just to give you a sense of things and we'll move on to something else I want to go back to the student debt case and I want to do the EPA Clean Water Act case because what those things seems have in common and I know that we have questions Tiffany for sure and Dolly like how the hell does these cases even get here but it does seem to raise this idea of what's called the major questions Doctrine and I just want the audience to know what we're talking about because what happens in that situation is the court says there's something called the major questions Doctrine if something has enormous political or economic out impact that it's really something that Congress should do we would defer to Congress for rep and again we have Bill trainer here on the on the stage who could help us through this what did the founders care about more did they care about Judges making decisions or did they believe in representative democracy did they want the local elected officials to make more of the decisions so in the EPA case the question becomes do we trust the executive branch and all the phds and the EPA right do we really normally we think of course you trust the EPA but in the last two years what we're seeing the court is to say no we don't have to trust the EPA and similar in this in the student loan case I think it also is a major question Sacramento says Congress has power over the purse Congress is in the money business the allocation business this is 400 billion dollars President Biden has no business canceling the debt based on a statute from 2001 a 911 statute for getting people to go serve in Iraq and Afghanistan he can't use that emergency and treat it as if the pandemic is the same thing and so those cases were essentially decided I don't want anyone to answer it I'd rather skip on to the next thing I just want to people to know the audience to know those are where that that's what's important about those cases at least I think yeah I mean so I mean the big question is this is where he says never listen to things yeah now the big question is the conservative wing on the court wants to end the administrative state so I mean that's really that's the common theme so you know whether it's the Secretary of Education saying certain people pay less in student loans or the administrators at the EPA saying what counts as a Waterway they you know and last year with the EPA decision right I mean that's the common theme that they are using the major questions Doctrine to say you know the administrators you can't do this you know so it's about separation of powers it's it's about separation of powers because it's a question of who makes the decision right is it the president or is it the court right so you know or the car there's a trick no it's not the Congress Congress the Congress is worth like do the students are this is a pocketbook issue for him don't do this congress's text is clear congress's text is clear and they're saying and this is Kagan is totally right it's not clear that's what they meant that you could you could just wipe out all day what does wave mean waiver modify means waiver modify everybody's dead 100 across the board yeah decision rather than the court coming in saying we know I mean there's an option of Congress Congress again the text congresses but it wouldn't do it today what Congress today wouldn't vote for it that's the point this is the way it works when a statute is passed it stays right well no no no no but wait but what no no but but seriously I think Rod are you saying there's legislative purpose we did this because it was a post-9 11 remedy we didn't pass this statute thinking there was a pandemic if Congress had said in in the early in the statute in the arrows act of Congress had said you have the authority to waive all debt then there wouldn't have been a case they made the heroes act permanent in 2007 correct it wasn't just 2003 and they expanded it to emergencies Heroes Act is 2003. I think that in 2007 they said this is now the law it was not just about nothing what does happen in history if something has a name like the heroes Act can you move can you actually say well yeah but it kind of applies in this well they did apply it to to suspend repayment during the emergency can I try to harmonize these positions great try no I think Rod is right that ordinarily Congress should make these judgments and I think the court is right to say Congress should make these judgments but it's a very cynical thing to say because they know that this Congress is incapable of doing anything meaning that the court ultimately makes the decision but I would say come 's already decided they chose the word wave right and so waive or modify you're just applying what the text of the Constitution of the of the statement does everyone know what Bill's talking about the question was cancellation is cancellation wave right that's what really we're talking about because people have made this argument that that that wasn't what the stats the statute never said you can forgive you can postpone it right it's not what people are saying about this or no I mean I think why are you focusing on Wave because wave means get rid of it I see okay right and you know and that's what it means whatever the education department wants it to mean wave means really should look at the text and waiver modify gives really unlimited power that's exactly that's exactly what the court concluded that it wouldn't be reasonable for Congress to give unlimited power if they don't do it expressly all right I'm gonna move on I'm definitely moving on that was a good time but we have but they could not have meant what this text says Nancy Pelosi agreed with a court on this issue yeah Nancy Nancy Pelosi does say Rod I think you're reading a super Clarity requirement into the statute and I don't know that that's fair well that's essentially what the major questions Doctrine does if it's something's going to have tremendous impact political or economic the court has said that the Congress needs to be clear in the delegation so that's why I say it's really a separation of powers issue the court doesn't care if Congress waives loans Congress can do it they just need to be expressible right now one final thing is when Congress creates a statute when Congress passes a statute they do it with a background understanding of what the Supreme Court case law is when Congress passed the heroes Act Chevron was totally dominant Chevron basically says if an administrative agency says something we're going to defer to them right so Congress passes this statute adopts this text at a time in which the Supreme Court has said we Supreme Court will defer to what administrative agencies say congress passes the statute and right now what the court is saying is oh no we're not going to defer we're going to create the major questions actor we're going to totally second guess so if you are going to interpret statutes you have to take seriously the framework in which Congress passed the statute all right rod I'm going to come back to you now you spent the basically the entire war on terror in the justice department or working as a U.S attorney well most of it I'm not sure it's over yet yeah right well okay all right well then this is perfect for you I I have to say am I the only one who is shocked that the two internet cases that dealt with the counter in terrorism that in neither case they were both decided nine to zero when you're talking about unanimous decision there were two cases that were very similar one you can almost identify a family sent their child over to Paris to study abroad that happens all the time Isis committed a terrorist attack and the daughter never came back she was killed the parents said we are definitely suing Google we are suing Facebook we are suing all social media platforms internet platforms because we know that tsarnab brothers who planted the Boston Marathon we know that's how they learn how to make bombs they watch this stuff on YouTube and we are holding them responsible under counterterrorism and we think that we should modify section 230 of the communications decency Act I can't believe that this with this purportedly Supreme Court you would have thought that they would have been all over Google and Facebook and social media instead in both instances they ruled nine to zero in favor of the social media platforms right it's a good example of a case where there was unanimous agreement Justice Thomas actually wrote the opinion there were two cases one involving Twitter one involving Google and the basis for the Court's ruling was the allegation was that the social media networks were facilitating terrorism because the terrorist organizations spread the word through social media and the Court's ruling was there basically wasn't enough of a Nexus you can't hold the media companies accountable for the tourists they're not aiding and abetting correct right okay I just thought we should know that case all right let's um let's go back to something we got bill so hot a moment ago let's get him back so Bill Traynor in the nor in the North Carolina uh gerrymandering case which to me I thought it was like the most important case it was what five to four it was a five to four decision or six three six can't remember what was the result uh the Harper versus more six three six three so I thought that was the most important case of the year because I thought well wait a minute this just has everything to do with all the people that were questioning the Trump election we're talking about because I thought well this is going to get people all excited uh people that are questioning election said that the election of clause in the Constitution says that when it comes to Federal elections the state legislature gets to set the rules for time place and manner that's it and so the conservatives were saying that's called the independent state legislature theory that means no one interferes in election rules other than the state legislature enough to remember in 2019 we had a pandemic and lots of rules got changed everybody voted by mail absentee before that only expatriates and military personnel instead you had tens and tens of millions of people voting by mail so then of course there were all these questions about the elections you know Donald Trump was spreading misinformation about fraud but there were questions right so the one issue that I thought was coming up was saying well this just shows that those rules should never have been changed because state election officials and courts don't have the right under the Constitution Bill Traynor you should know submitted an amicus brief in that case and his early larvae articles were cited twice in the Supreme Court's majority opinion that's a huge achievement I think that yeah so so obviously and he'll hopefully do this quickly but obviously he believes that that there's no such thing as an independent state legislature doctrine that means that there's no judicial review it means it's crazy to think that the founding fathers didn't believe that a court could review the decisions made by the legislature is that right so so there are two Clauses in the Constitution that talk about State legislatures one says States legislatures essentially can establish rules for election of congressmen and senators and another says that they can establish the rules for the electors for presidential elections right so they're really it matters for two reasons one is the one on Congress really you know can you gerrymander without a state court saying you violated the State Constitution which was really the Moore versus Harper question in the 2024 election and we saw it also in 2020 you know it's also goes to you know how free is the state legislature in establishing the rules for determining like electors so this was a big you're saying let's not ignore the electoral college right this is even bigger than what I'm stock talking right so it's not just the gerrymandering it's also what it would mean for the 2024 election so big big issue and the independent state legislature theory is when it says State legislatures make the decision that's what it means period right and uh my my dissertation was basically said judicial review was established at the time of the founding it was not Marbury it was before Marbury and so when they say State legislatures they mean State legislatures as created by state constitutions which means the state court gets to say you know the gerrymandering it violates the state constitution right and that's the way chief justice Roberts came down big big decision two things you know one is I was surprised you know the Alabama case surprised me in this case surprised me and you know so the solicitor General's office it it frankly there's a good argument that it was moot because the there was a kind of a decision by the uh North Carolina Supreme there's a new courtview and then there's a new report right that all of a sudden is a republican court and they say never mind you know forget what the Democratic Supreme Court said we can't consider this but I think chief justice Roberts wanted to hear this case because he wanted to prove that he was an institutionalist and that the court was not going to ram through stuff that was not good for democracy I see so but you know but the solicitor general said this is moot because it looked like there were at least four votes in favor of the independent state legislature Theory and I was worried that there were six and this is going to have a huge impact on this next election right because for those people who would say remember Republicans control most State houses especially in Battleground States so think about the implications here if the state legislature is the only ones that can establish what the rules are and they happen to be Republican this is essential saying but not without judicial review if you're getting a CLE credit here's your second Bingo number uh l-o-t-l-8 l-o-t as in Thomas L A all right I want to move now to the Colorado case because a number of years ago we were all here I can't remember which one of you were here that day that was the master bake case that case we never got that case resolved this case about the web designer in the same state of Colorado where a master baker said look I do not believe in same-sex marriage and I you're telling me I violate the anti-discrimination laws I'm not just any Baker I'm the master Baker and you can't force me to bake a cake in something I don't approve of and this woman in this new case is saying I am a really good draft website builder I'm excellent and I would like to get into the business of marriages but I don't want to be in a position to be in violation of Colorado's anti-discrimination laws let me tell you something right now there is no way I'm making a website for same-sex marriage and that's what this case was about now I have a few questions for you the first thing is the Supreme Court apparently took part of the First Amendment off the table they said we're not interested in hearing about your religious feelings we are only interested in your free speech expressive rights as an artist we're not interested in you telling us this is not what Jesus Christ told me so first of all why did they do that why didn't they just make it easier if the conservative Court could have made it even easier for themselves and could have said you know you have a religious right to not make this cake or this website and you have a free speech right not to Colorado stipulated to all of the speech claims I mean this case really is a model of bad lawyering the lawyers for Colorado gave away the case there's a second reason to do the religion piece of it they'd have to overrule a major precedent which they'll do soon enough but they're not going to do it in this case and maybe the third reason is that last year they took two big big big religion cases and made big big swings in those religion cases so if you can do this as a compelled speech case uh and not in and graph the other I think it's just a way to turn down the temperature and as Adam says those religion cases are not going away and just for remembering for those of you who were here and may not remember I think dolly is talking about at least two out of three one was the football coach who wanted to say a prayer after the game on the 50-yard line and they ruled in his favor one was a Catholic adoption agency in Philadelphia right and then there was the main private school there was a Catholic and said well we don't want to do adoptions in a same-sex marriage where Catholic adoption agency and they basically said you know what there are plenty of adoption agencies in Philadelphia we can't make you do it you have to family a same-sex couple needs to go somewhere else so dolly is saying this was just very radioactive and also I wonder whether you would say all of you would say we are a and I've written a book about this I think we were a crazy Free Speech country right when it comes to other Western democracies we're out of our minds we do things that no normal country would do Nazis get to march on a town of Holocaust survivors of burning crosses on The Lawns of African Americans this is nuts uh destroying the funeral of a serviceman because you wanted to protest gays serving in the military no Western democracy would put up with any of this nonsense we do it and so one question would be maybe the the court said you know just go back to what we do what we do is we always Grant very very expansive Free Speech protections and if this woman wants to say I'm an artist maker of websites that she has the right to say I have a free speech right to do what I want to to make the art and I think the court said something about expressive right that if you make something right because I think I just read did you write about this in today's paper about this new case that's coming up that might come up with uh firing a substitute teacher who is same married to a man yeah I think that's a different line of Doctrine but your right thing to say that it's not every business The Tire Store the Walmart still can't discriminate against people based on two guys holding a hand held the hands in a 7-Eleven want to buy a pack of cigarettes you can't stop right you can't say I'm sorry it applies to this category hard to Define expressive businesses you know songwriters painters Express and and who make their work on a custom basis so none of that makes you know the people who are being discriminated against any more comfortable but it is a narrower class of businesses than you would first think but it also so the two things that are the heart issues which of course which doesn't go to or one is what becomes expressive right I mean you know he says this is expressive but you know how far do you push that right somebody was you know what people are doing now that Subway is saying our sandwich makers are artists you know I mean how far do you know what's the dividing line right and then the other is you know why is this different from race or religion right and you know that and he doesn't you know that's that you're saying it shouldn't be well he that's the big question and he doesn't touch right I mean you know if you know if the the web designer had said you know I'm not comfortable making a web wedding announcement for somebody who's Jewish because I'm you know deeply Evangelical and I I just don't think that that's should be recognized or I don't want to personally recognize that why is that different than this well and this is a great example from Justice Sotomayor I'm a school photographer I take pictures of students and an interracial student comes up I'm not gonna I'm not going to take that picture because I don't believe in interracial men and I'm an artist right I think a portrait photographer is pretty far down the Spectrum in in the direction of artists and Gorsuch don't you yeah that's speech yeah uh and Gorsuch doesn't touch that that doesn't have a good answer on race and and and maybe this is is the answer to your framing question which is this is a religion case that's cloaked as a speech case yes because her objection is that it is a false marriage right and Gorsuch says that that she shouldn't be forced to say this is a marriage if her faith holds it it's false but what Sotomayor says in her descent is let's remember all those civil rights cases right from from you know all the refusals of service were also rooted some of them in religious objections to serving people of color I yoke not unlike oxen hmm okay I was also going to ask I was going to wonder you remember you said something about the student loan case earlier about well why is it even here and I wondered whether you were going to jump in now and say she hasn't made one website yet she's not ready to she you know that you could make that same argument this is a woman who says I'd like to get into the marriage website business but I don't want I don't want to be in a position where I violate the anti-discrimination law I think there's Force to that Sotomayor did nothing with that and there is a First Amendment concept known as a pre-inforcement challenge which if you have a credible fear of punishment you don't have to vote to get punished you're saying that's a legitimate legal argument to say that is a mainstream legal argument right and so it's even bigger um right so that wouldn't have been a ripeness or standing issue but before we take one question from the audience and say goodnight to everyone uh since we're on the subject of religion uh nine to zero for the postal worker nine to zero back to religion a postal worker doesn't want to he's religious doesn't want to deliver mail on Sundays the Postal Service as you know is going out of business and if not for Amazon they will not survive that means that they have to deliver mail on Sundays to help out Amazon they said to this religious person well you got to work on Sundays he's going there's no way I'm doing that right Supreme Court takes this 9-0 essentially ruling in his favor under his religious liberty rights on the statutory she hasn't won yet Mr Groff has to go back to court and he now has to prove uh or pardon me that his employer the postal service has to prove it would be an undue burden for them to accommodate him so the case which was written by Justice Alito actually elevated the the showing required by an employer who's denying an accommodation there was an argument that it should be de minimis and the Court held instead you need to show an undue burden by the way just so we have law constitutional law professors and legal Scholars the master cake case that never actually got resolved is it now resolved or not because he's didn't he also I think he made a First Amendment argument and a First Amendment freedom of religion speech and so what what does he do now does he take this can does he right here's a question is he tomorrow violating the statute by not making a cake well it's a question of how he frames his argument and I think the interesting issue that this case may may uh create is one of his argument is I don't mind making the cake I understand I'm required to make a cake but I shouldn't be required to you know put a picture of a homosexual couple on the top of the cake because that's expressive that that's the case I think the court will have to confront next cool very legalistic just go back and follow up on right on your point so you're are you saying that essentially Alito took a position which was not as pro-religion as he might have in other words is that what am I hearing in a sense that he well I think he made a decision about what he believed the statute required the language in the statute is undue burden and they were simply enforcing the statute okay question from the audience will say good night this was awesome right don't you think this is pretty good well done you know I always say no one leaves a folks event stupider this never happened we always walk maybe something a promise we'll give your money back you come out of a Folk's event lightning on your feet um has original attempt become a pseudonym for conservatism I think that this is an interesting question we start to hear you know originalism terms of our textualism we hear this in the public sphere are these These are legitimate legal Concepts they're not excuses in order to be a conservative so I would say two things and actually Tiffany started us off on a very important point um so when I was in law school many years ago originalism was actually a liberal Doctrine you know and people forget that but there was a great book constitutionally what year was that 1980 1980. so you know if you think about who the great originalist on the court was in the period we were talking about earlier it was you go black he really brought around you're talking about the Fortis court is that why you're saying exactly I'm just saying when you said earlier I want the audience to know what we're talking about so so you go black said the Bill of Rights applies to the states because I will read the 14th Amendment to incorporate the Bill of Rights so so during the Warren Court in the burger Court originalism was really much more a liberal position right now we've had a period starting with ednis uh Administration the Reagan Administration and Justice Scalia in which you know people think of conservativism and originalism as kind of a Vulcan mind meld right but you know one of the interesting and important contributions that I think Justice Jackson is already making is that she is offering a progressive view of originalism so we'll see over time how that plays out but that's something that we really have not seen for decades ladies and gentlemen Adam liptak Tiffany Graham Rod rosensteinstein Dia lithwork and Dean Bill croner good night foreign [Music]

Channel: The 92nd Street Y, New York

Views: 833

Keywords: 92nd Street Y, 92nd Street Y New York, 92NY

Id: m5GB9z1-7A4

Length: 87min 22sec (5242 seconds)

Published: Wed Jul 19 2023