2018 Supreme Court Preview at Georgetown Law
Articles,  Blog

2018 Supreme Court Preview at Georgetown Law


– Well, welcome, everybody,
to our annual press preview. And I’ll just start with a very brief opening remarks before, and to set up the format
for what we’re going to do, and then we’ll get started
with the cases, and, well, actually, we’ll get started
with something else. But last term was a term of blockbusters, most of which fizzled out. This term, by contrast,
doesn’t have any blockbusters to begin with.
(audience laughs) But I think a more accurate caption for this term is the
calm before the storm. We are headed for a whole new world, and the only real questions, I think, is how far are we going to go, and how fast are we gonna get there. Our format today is as follows, we will start with the discussion of what impact the current
nomination will have on the court, and for purposes of this, I
hope you’ll let us all assume that the current nominee
will be confirmed, and not get into questions
that may have arisen by virtue of things that occurred over the weekend. After that discussion ends,
we’ll invite press questions on that topic, then we will
discuss, one at a time, four cases that have already been granted that we think are potentially
the most significant. They’ll be presented by one person, and that will be followed by discussion by anyone who wants to add anything, that will be followed by press questions on that case, if there are any. Then we are going to discuss several cases that the court is likely to grant cert on, but have not yet been granted, these are ones where there
are pending petitions, and we’ll do two or three
or four of those, depending. And then, if there’s any time left, I’m just gonna identify some of the significant cases
bubbling up in the lower courts, and invite panelists to say
whatever they want about them. This is really a term in
which there are a large number of potential blockbusters kicking around in the lower courts, for which there are no
cert petitions pending, but I’ll just mention those
at the end, and then anybody who wants to say anything
about them may do so. I think everybody here
knows our participants, they need no introduction, so
I’m not going to give you one, and we will start with, and
we’ll be a little out of order, so we’re gonna start with Don, who will present Madison against Alabama. You’re starting. – Oh, I’m starting, okay.
(overlapping chatter) – Oh, I’m sorry, I forgot
the broad question. – Right, yeah, right, good, okay. (panelists laugh) – My fault, so the first
question, of course, is what impact the current
nomination is gonna have on the future of the court,
and anybody can answer that in any way they like,
and whoever would like to start with that, please,
somebody start with it. – Okay, I’m just gonna pick up on what Irv was already
quoted publicly as saying, or put a little bit of
a different spin on it. If the new justice is Judge Kavanaugh, but quite frankly, even
if it’s someone else who’s on the Trump list, I think
there are five areas, at least, five important
constitutional areas in which that justice’s
views will not deviate that much from Justice
Kennedy’s, that is to say, the general views will
be pretty coterminous, but it’s likely or at least possible that that justice will be pressing harder and quicker to get to the more, sort of to the ends of those
views, the extreme positions, or the, or the
ramifications of those views in ways that Justice Kennedy
would sort of pull back on the reins at the last
minute, and want to sort of moderate, or not reach
difficult questions. And some of them, they’re
probably obvious to you, so one would be abortion, the next would be affirmative action, third would be presidential
power writ large, including the president’s control
over the executive branch, possibly also more powers questions, but more the internal separation of powers and the president’s, the
unitary executive questions. Religion, and we might
talk later about that, the cross case that’s
currently on a petition, right, Justice Kennedy’s views on that are not very different
from Judge Kavanaugh’s, or some, or someone else’s, but
even in the last cross case, the Buono case, right, he was the writer for a decision that didn’t
reach the merits, right? I think he was always happy
not to reach the merits in a lot of these issues,
and finally, fifth, and perhaps most
importantly, and I’m curious what my co-panelists think about this. The thing with, these all
have practical implications, especially affirmative
action and abortion, I think, have very practical implications. But especially the death penalty,
and solitary confinement, where Justice Kennedy had signaled, you know, had both voted with the liberals on limiting the death penalty, he wasn’t gonna go so far as to abolish it with justices Breyer and
Ginsburg, but then made noises about putting serious
eighth amendment limits on the practice of solitary confinement, and that is a promise or
a prospect that I don’t, that I think is probably
now dead, but not for sure. And I think those are very, the five areas that it seems to me that
the new justice won’t, won’t in theory be very different from Justice Kennedy’s philosophy, but will be more willing
to push harder and faster. – So others? Different views. – Well, I guess I’ll offer
a pretty modest comment, I agree with Marty, that those are some of the areas that we should be looking at. You know, the kind of, the
question in my mind is, is it gonna be fast or slow, you know, is this, like, the new
person will come in, and be emboldened with this court, and think it’s time to get
some of these things done, you know, I don’t like where
the Supreme Court is now, or will it be a more gradual process? You know, I tend to think that it would be a more
gradual process just because that’s the way
the court itself has tried to decide cases, incrementally,
in the next 10 years, and, or in the last 10 years,
and I think that, also, it depends on the
personality of the justice. And so, you know, if you’re
assuming it’s someone who’s already been a federal judge for a significant period of time, you know, I tend to
think that it would be, you know, a person who comes in, and kind of respects the role
of the other justices, and, you know, wants to make a
difference, but not a big splash, and make friends with them,
and kind of, I would say, build power gradually, if
you will, as opposed to, like, I’m here, and it’s time to do stuff. And I think, depending on what happens with the rest of the confirmation process, you know, the court might
feel kind of battered, and like it needs to take
things a little bit more slowly, but that’s the thing that, you know, I’ll be watching, to see what happens. – Yeah, I’ll pick up on
where Nicole left off, and I’m Kannon Shanmugam
for Williams & Connolly, and it’s always a great
pleasure to be here. I think that Nicole
has identified, really, the key issue, which
is how is the new court because the court is always a new court when it has a new member,
gonna approach the subject of stare decisis, and the extent that the new justice has divergent views from Justice Kennedy, you
know, how quickly is the court gonna move in a different
jurisprudential direction? And I think that there are good reasons to believe that the court
will move gradually, as is its custom, and I think that that is in part due to the chief justice, who I think has demonstrated in his time on the court a real reluctance, both to overrule the
court’s prior precedents, and to move quickly. I think the best example
of that is Shelby County, and the Voting Rights Act, though I think you could
say the same thing about the eventual decision to overrule Abood, and the court’s view of
the constitutionality of agency fees, as well,
these are areas of the law where even if the court
ultimately ends up overruling a precedent, it does so incrementally, and I just think that that
is the chief justice’s, that is in the chief justice’s DNA, to kind of move gradually,
rather than quickly. And however a new member
of the court feels about stare decisis, I think
that the chief justice is, is largely going to dictate
the terms, going forward. I do think that in my
observation, for what it’s worth, I think that new justices, when they get to the Supreme Court, tend
to get there, they tend to exhale, and to realize
that they’re gonna serve on the court most likely for
a very long period of time. And I think that that, in and of itself, often induces a certain degree of caution. Not always, I think Justice
Gorsuch has expressed his views, I think, quite robustly, and confidently, ever since virtually the day
that he arrived at the court, but I think, by and large, justices, when they get to the court,
are somewhat careful about themselves expressing their views in excessively absolute
terms, and I suspect that a new justice will
be in that mold, as well. – Anyone else? – So, you know, this timing issue is kind of an interesting one,
I guess this is just ’cause I’m getting old, but what, the difference between swift
and gradual is, you know, if you’re just taking the examples Kannon correctly identified is, you know, the difference between one year, and five years, right,
if you think about it. The process of overruling Abood
started with the Knox case, and, you know, there
were a few iterations, and five years later, it was overruled, and I think but for
Justice Scalia’s passing, probably would have been
overruled sooner than that. Shelby County, that was three years after the Northwest Austin
case, Citizens United, you know, that, the process
of overruling Austin, you know, from the Right to Life case to Citizens United was
three or four years. So, the, to the extent we’re
talking about a gradual process, I do think there are a number of markers, with respect to many of
these justices, already, in terms of what we’re talking
about, and the timeline, and that would be the kind
of timeline I would expect for some of the issues
that Marty identified. I don’t, I don’t know the whole field, but one the question of considering race in public university admissions, you’ve got cases that
are a few years away, I think, from getting to the court, maybe there’s a case that I’m
not aware of that’s closer. The, the one place I think,
you know, it’s interesting, I think I have a different view about this than most keen observers, most everybody else in
this panel, is abortion. I am, I share Kannon’s view about the approach of the chief justice, but,
you know, the question of what’s gonna be on the
docket isn’t always 100% in the control of the justices,
or even the chief justice. And I think, for example,
marriage equality, that issue got to the court faster, I think, than most members of
the court would have preferred in the wake of Windsor, but
there was, and, you know, eventually they had to
do something about it. And I anticipate that that’s gonna be true about abortion, also, because
while there are some cases that can be handled under the
Casey undue burden rubric, there are other cases that really can’t. And those are the cases, for example, like the Iowa Fetal Heartbeat Law, which was enacted, and is under challenge, I think, in the state courts now. You know, you, now,
it’s certainly possible that the state supreme court will rule that law unconstitutional under Roe, and that the Supreme Court will deny cert, that could happen, certainly. But I think after, I think it would, will be likely that you’ll see
several states enacting laws that, in one form or another,
put to the court the question of whether Roe should be overruled, ’cause they won’t be about burdens on exercising the decision
to have an abortion, they’ll be limits on
when abortions can occur that aren’t consistent with Roe. And, you know, my sense of
things is that at some point, maybe in that five year window, you’re gonna see a case like
that on the court’s docket. And, and so, in terms
of the pace of change, yeah, you know, gradual, but gradual is, I think, three to five years. – Yeah, and I’ll just
add three quick thoughts. One is, if, you know, if
you’re looking for a good sort of predictor of what the
court might look like with a new judge appointed
by President Trump and confirmed by the Senate, I mean, I think last term is
really the place to look at what the future looks like
because you had this kind of unusual dynamic of
Justice Kennedy not joining with the four liberal justices in a single five-four opinion, and so you ended up having a term where I think the court did indeed sort of punt on a lot of important issues, and I think if they hadn’t
punted, you might have seen Justice Kennedy joining
the four liberal justices. But because of the punts, you know, you do have this remarkable
statistic that, you know, given that Justice
Kennedy typically joined with his, you know, four
more liberal colleagues in about 25% of the five-four cases, the number last term was zero. So I think that’s a good predictor for what the future may like,
and be like, in the sense that I do think you may have
five more predictable votes for relatively conservative outcomes. You know, the second point,
and this is complimentary of just a different
way of, maybe of saying what Nicole and Kannon have already said, you know, I think for
years and years and years, basically as long as I’ve
been following the court, you know, the major way to
think about the court is in terms of who’s the swing justice. And I’m not sure there
will be one going forward, and, you know, I, and I think, you know, honestly what we’ll have
is not a swing justice, but I think we’ll have
sort of a governor switch. And I think the chief justice
will be the governor switch, which, who will determine
how quickly the court moves, and in what directions they
move, quickly versus slowly. But I think it would be kind of wrong to think of the chief justice
really as a swing vote, I don’t think that’s the
way to think about it. I think it’s more a regulator of how quickly they’re gonna go, and on that question, my
third thought, it’s, you know, I do think there are some
structural considerations that may also, you know,
move towards the court moving a little bit slower than
you might otherwise expect. And, you know, I think it’s just because, in part, I think it’s
because you’re gonna have, at least for another,
what, two and a half years, you’re gonna have a
Republican administration in the White House, so some of the issues that you might have in terms of a relatively conservative court, interacting with a relatively
progressive administration, are gonna be deferred
for a couple of years. I don’t see, no matter
what happens in November, the Congress passing a
bunch of cutting edge, progressive legislation, you
know, any time super soon, maybe I’ll be wrong about that. But, so I think if there
are going to be issues that are gonna be sort of percolating up to the Supreme Court, it’s
gonna have to be mostly issues that come from blue states
doing either innovative things, or filing innovative lawsuits. And as to doing innovative things, I think that may generate some
cases in the shorter term. I think some of the innovative law, I’m a, you know, not probably the right person to make this prediction,
but I wonder if some of the innovative lawsuits
are gonna lose a little bit of steam because, you know, I think, if you look at the combination of the ultimate outcome
in the travel ban suit, and the prospect of a new justice, I think the idea of bringing some, you know, interesting,
nation-wide, injunctive suit within the contours of the Ninth Circuit, where you may well win
at the first two stages, but then face Supreme
Court review, I just think that becomes a little less
of a tantalizing prospect, given the outcome in the travel ban suit, and the new composition of the court. So I’m just not sure, you know, I think there are
structural considerations that are gonna maybe, you know, make it a little harder to tee up, you know, some of these cases. And, you know, Don’s right,
you’re gonna have states that are gonna pass laws
that presumably are going to be invalidated by courts
applying existing precedents. But that’s a dynamic where
the court really can control whether they want to take the case that, you know, may well be
right under existing precedent, and would only be wrong if they
want to overrule something. That really is a situation
where the court can decide whether or not it wants to take the case. – Anybody else want to respond to anything anybody else has
said, feel free to do so. Press questions? Yeah? – [Man] Well, Don left me hanging. So if they take it in the next five years, do they overturn Roe? – That, again, I realize
I’m a distinct minority in this point of view, but my, my expectation would be
yes, at least in part. And the reason for that is because I think these are highly
principled people, and it, and Roe is incompatible with their most deeply held
views about how you ought to understand and
interpret the constitution, and that’s been true for many decades, and I think if the issue is before them, and they have to make a choice, that that’s what they will choose to do. – [Man] How do you overturn it in part? – Well, like the Fetal
Heartbeat Law would still allow for abortions in the first several weeks, in advance of a, detecting
the fetal heartbeat. And so, but it would
categorically preclude abortions in the period after detection
of the fetal heartbeat, which would be within the period in which we all would
presumptively allow you to have an abortion. – Anybody else on, want to
comment on the specific subject of what they see the abortion– – So, you know, I kind of
want to just leave the panel, and give up on life,
hearing that from Don, but I guess that’s probably not an option. So instead I’ll say this, which is, you know, Don is right,
there, I do some work for Planned Parenthood,
so I have some insight into where this might be going, and there are a significant number of red states that are
passing laws that are, that seem like they are just
flatly unconstitutional, under Casey, and under existing,
under Whole Woman’s Health, and they just think they’re teeing it up for Supreme Court review. And there are a lot of ’em, there’s been some stuff
happening in the Eighth Circuit, some stuff in the Eleventh Circuit, and, like, that is coming. And they’re not, they’re not incremental, you know, laws, they’re, like, asking for the whole enchilada. And so I certainly hope
that that’s not a future that we find ourselves in, but, you know, certainly I think we’re
right to be worried about it. – Others on abortion, so, question, yeah? (man mumbles) Fine. – [Man] I wanted to mention that the Supreme Court might feel battered by this (mumbles) confirmation
process right now, and want to slow down, how would that, how would they do that?
– Well– – [Man] In view of the (mumbles) panelists to believe that they,
that might (mumbles). – Well, so I’ll jump in, I just think, so we’re coming up on the long conference, right, the Supreme Court’s
got lots of cases teed up, and has to decide what
they’re gonna grant review in around the end of this month, and they have some things, you know, they’ve got circuit splits, and some are on business topics, and
some are on religion, and, you know, some are on
other hot button issues, and the question is, you
know, are they gonna look at that list, and say, bring it on, I want to take all the
hot button issue cases, or are they gonna say, ah, you know, maybe we’ll take the
Establishment Clause case, and we’ll take some business cases, and kind of make it
more moderate, you know, it’s hard for me to
predict ’cause you’d have to put yourself, like, in
the mind of the justices, but, you know, you imagine
you’re getting a new colleague, and it’s been a pretty,
you know, hard fought, difficult process, and
that they might see some of these cases, even if
there’s a circuit split, and even if it’s a
really interesting issue, and just think, we can wait. You know, sometimes they can’t wait, like the situations Don talked about, but most of the time, they can. – Yeah, I think, oh, I was
just gonna add one thing, which is that, you know, I
think it’s been really striking, the extent to which justices from across the
jurisprudential spectrum have, during this confirmation
process, expressed their concern about the confirmation
process more generally, have expressed their regret at the fact that the confirmation process
is not what it once was. And, you know, none of
them has gone so far as to describe the confirmation process as an intergalactic freak
show, as I understand one of the members of the Judiciary
Committee did yesterday, but I think that they, you
know, I think all have a sense that the confirmation
process has deteriorated. Now, it’s, I think, anyone’s guess as to whether that will translate
into the court wanting to have some breathing
space after the confirmation of a new justice, that
didn’t really happen after the confirmation after
Justice Gorsuch last year, it looked as if the court was going to have a blockbuster term last year, and the court certainly
didn’t seem to be shying away from taking big cases last year. And as Don rightly points out, the court’s hand is often forced, in terms of the shape of the docket. The court does not always
have complete discretion and practice to decide
which cases it hears, if federal statutes are
declared unconstitutional, or if a case comes up, as
is the case with regard to gerrymandering on the
court’s mandatory docket, the court doesn’t have, always
have the ability to say, we’re gonna wait, and we’re gonna go slow. But I wouldn’t be surprised if the court, you know, at least wants
to have a little bit of breathing space after the conclusion of this confirmation process. – So I just want to weigh in
a little on Don’s thoughts. It’s not that I violently
disagree with them, but it seems to me, if
you look back at marriage, there, there was one court after
another holding there was a right to marry, and no cert grant, and why was that? I mean, sure, Justice Kennedy
didn’t vote to grant cert, presumably, but I also think
the chief justice did not vote to grant cert in those cases, why? Maybe it’s because he predicted an outcome that he didn’t like,
but it’s also possible that he would have preferred not, for the court not to have
to decide that at all. I think a big strain in his thinking is, he is the chief justice of
a court, and there is a risk that if was see one five-four
decision after another with Democrats on the four,
and Republicans appointed on the five, the country at
large will no longer view the Supreme Court in the
same way it does now. And I think he’s, he has mentioned this on
more than one occasion, and I think he, this is a, an outcome that he fears almost more than any other. And so I predict that this, the
chief justice will be trying to move things slowly
by not granting cert, even in heartbeat cases, and as, I can’t remember if Don or Paul said, there still could be four that grant. And so, for me, the key
question then becomes, here, whether the new justice
is going to be susceptible to the chief’s influence at all on whether to keep some of these hot button issues
away from the court. As I’ve said, I think the
kind of undue burden cases, where Justice Kennedy would
have found an undue burden, those are fair game now, you know, all, to the extent people want to bring ’em, they’re gonna find out
there is no undue burden on things that maybe
people thought there was. But on the, on the straight up question, I’m still thinking that we’re years away. – Well, you may be right
about that, of course, and I loathe to disagree with you, and your predictive powers.
(panelists laugh) But, you know, I guess
when I look at the future, and if it’s one or two states
who pass laws like this, maybe, but, you know, if it’s
six or seven or eight states, and they all get struck
down, and, I don’t know, I think at some point, the pressure for the court to take one of the, those cases is gonna just be enormous. – I do think, I tend to agree with Irv, but I do think, you know, over the course of three to five years, as Don was saying, it’s going to look like
there are a whole bunch of these five to four
cases, that break down on what the public will
view as partisan lines, including many that involve elections, and that affect how partisan
elections are decided. And so I wonder, also, in
addition to Irv’s good point that the chief will trying
to be, use the cert process to slow things down, whether
he’ll also be looking for substantive areas in which
there can be some agreement, and I think he’s found one
in the fourth amendment, where the, where it
doesn’t break down just on, on partisan lines,
including Justice Gorsuch, who has a very odd, but
potentially rich opinion, on Carpenter, there might
be more than five, or, we don’t know what the new
justice will think about that. And I suspect the chief will be looking for other areas like that,
that show more crossing of the typical partisan divide. I don’t know what they would be, though, I don’t think they’ll
be the five major areas that I identified at the outset, but– – Some free speech
cases, not all, but some. – Some free speech cases, in the sense that there will be some issues on which the Democratically
appointed justices will be in favor of the free speech claim, but on the whole range
of economic free speech cases, I think those
will be the most heated, among the most heated five-fours in the next five to 10 years. – [Man] Can I ask, why do
you think the court has been so reluctant to revisit
the gun control (mumbles). – Paul?
(Irv laughs) – Well, you know, you’ve
at least hypothetically eliminated one possible
explanation, which, just, you know, the petitions
were poorly written. You know, I, I think that that is an illustration
of the phenomenon that was, you know, kind of unmistakable in the second amendment context, but was present in lots of other context, where, if you have a
dynamic where the court is four one four, and the one is giving neither set of four any particular indication
that they’re with them, you know, you’ve gotta have, then, a real incentive to want to roll the dice, and I don’t think, in the
second amendment context, there was much of an incentive
because the left side of the court was getting
substantive outcomes that weren’t that bad,
from their perspective, and the right side of the court, you know, didn’t want to put the
whole enterprise at risk by teeing up, you know,
the issue with them. So I think that sort of
explains what was going on– – [Man] So has that changed now? – I think it, it may well change now. But again, to Irv’s point, you know, the, you didn’t need people to really follow the chief justice’s lead to enforce a dynamic where,
when it’s four one four, even though you have
four votes to grant cert, it doesn’t make much sense
tactically to vote to grant cert. But when you have a world where you think the chief
is probably with you, at the end of the day, he just
doesn’t want to do it today, I don’t think you have the same kind of self-enforcing constraint on the four to not vote to grant a case, when they think the result below is wrong, and will likely be reversed by five justices at the end of the day. So I think that’s why
Irv’s absolutely right, that in order to allow
the chief to go slow, you have to have, you
know, one or more members of the court willing to
sort of follow his lead on how quickly it is appropriate to take on some of these issues. – I also wonder how many of the
justices really are bothered by the status quo when
it comes to gun laws. I mean, I think Heller
and McDonald did the work that they wanted it to do, which was to basically stop the sort of acceleration of gun control laws, and put a stop in the political process on that, and they’re probably fairly happy with the way things are,
it had the political and practical and legislative effect that it was supposed to, and
I don’t see, in their opinions or elsewhere, them really
chomping at the bit, bad example, to go further in that way. But I might be wrong about that. – So, I mean, I guess
the next issue is carry, right, Paul, or no? – Oh, there’s lots of–
– Besides (mumbles). – No, and that’s the
thing, like, they could, they could, if they wanted to, they could tackle a relatively big issue, like right to carry, but
there are also enough sort of petitions working their way through, that involve, you know,
relatively discreet issues, where, you know, I think
it might be tempting for the court to kind of remind people that we’re still in this
game, but not take on, like, a big, you know, a
seriously controversial issue, but take on an issue that’s, you know, a little more sort of
limited in sort of its scope. I mean, you know, I have a petition that we filed that involves a New York law that basically says that
you get a premises permit, and that means you can’t even
take your handgun essentially, you know, to your summer home, or to a target range in New Jersey, but that you basically can
only possess your handgun inside the premises of your home, or on the way to and fro a
New York City target range. And that seems like a law where, you know, it’s not gonna be the,
like, blockbuster material, but on the other hand,
they could sort of say, all right, look, you know, we’re not, it’s not anything goes on
the second amendment now, you know, this is an
example of a law that, you know, barely passes rationality test, and we’re gonna strike,
we’re gonna strike it down. I think an issue like
that might be something that would be attractive to the court, just as a way to get back into the game, but sort of dip their toe in the water, instead of taking on Kerry,
which is the next big issue. – Okay, other questions here on? – [Man] Just, without getting
into (mumbles) necessarily want to get into (mumbles)
on what might happen, (mumbles) but what if we use, I’m curious if you’ve (mumbles) this term. (background noise drowns out speaker) How that might affect cert grants, stuff like that, to slow down (mumbles). – Well, look, I’ll start that, I mean, you know, Kannon managed
to get all of his cert, you know, petitions granted last term, which was really clever, you know, for some of the rest of us who
have a couple of petitions, you know, in the long conference, you know, we’ve all done the math, and four out of eight is
harder than four out of nine. And so, you know, I do think that, you know, if the court is, you know, we saw this very recently,
if the court gets down to eight justices, it’s
gonna slow down the pace of grants, and, you know, maybe, maybe some people think that’s a good thing, but Supreme
Court practitioners don’t. – You know, or they can just–
– Guess which ones. – Or they can just take the
less controversial cases. I mean, they, I think that
there is a real pressure at the court this time of the year, like, okay, we need to fill our calendar, like, maybe we don’t need
to take the same number of cases last year, but we have sittings in January, February, March, April, like, we need to have cases
to hear during those sittings. And it’s at the point where, you know, there’s some January time that’s full, but not all of it, and if
you map out the schedule, you know, they really
need to grant cert now so that it’s not an extremely
accelerated briefing schedule, right, you barely are
gonna get the regular briefing schedule if they
grant at the end of the month. So, you know, there’s gonna be grants, they just might pass on some
of the more high profile stuff. – Yeah, I would just
add, I agree with Nicole, that I think it may affect
which cases the court grants, rather than how many, you
know, we have seen this sort of gradual depression
in the number of cases that the court is hearing,
I think last term, there were decisions in
only 59 argued cases, and that is a noticeable decline, even from the days of hearing 75 or 80, which were not so long ago. I do think that we have, you know, some indicator of how the court operates with eight justices, from
the period in 2016 and 2017, when that was the case, and I think that the court seemed to just
be taking different cases, the court took a lot of patent cases, it took a lot of cases
that I think (mumbles), the court probably felt confident that it could resolve by a clear margin. I think the other very practical effect is on the cases that are
actually being argued. You know, I’m representing the petitioners in two cases that are set for
oral argument in November, and it’s a very real consequence, when you’re sitting there, thinking, boy, to get a reversal, I have
to get five out of eight, rather than five out of
nine, and that’s true even in cases that don’t have
much of a political valence. And so, you know, if
the court has a period of time when it’s hearing oral arguments in cases when it has only eight justices, that will be the dynamic, I don’t think that there are a lot of
politically contentious cases on the court’s early docket, and, you know, that will be born out by what we discuss for the
rest of the morning. But if and when the court has those cases, of course, then the
question is going to be, can the court address those
cases in a narrow fashion, when those cases might
otherwise be heading for a four to four tie, which, it is clear from the most recent
period, it is something that the court really doesn’t like to do. – Why don’t we move onto the cases that have been granted, and now, Don. – You still want me to go first? – Yes.
– Okay. (panelists laugh) So I’m gonna talk about a
case, Madison versus Alabama, which is a death penalty case, and it’s a case that’s pretty circumscribed, both in terms of the facts,
and the relevant precedent. The, the defendant in the case was convicted of
murdering a police officer in 1985, sentenced to death, and has been on death
row basically since then. Over the course of these many decades, he has developed a condition
called vascular dementia, and as a result of that,
apparently he is unable to remember the facts
of surrounding the crime for which he was convicted,
and scheduled to be executed. Supreme Court, several decades ago, decided a case called
Ford against Wainwright, which essentially established
an eighth amendment standard, invoking both the eighth amendment idea of evolving standards of decency that mark the progress
of a civilized society, and also common law norms
from the time of the founding, that people who are incompetent
should not be executed because they cannot understand
why they are being executed, and therefore the retributive purpose of inflicting the punishment can’t be
vindicated in that circumstance. And then the, I think
the older common law idea was also based on some
notion that a person before being executed ought
to be able to understand that that can happen, so the
person can make his peace with god before being executed. And there was another case,
Panetti, some decades later, in which the court reinforced
this principle, and this case is a case essentially about
the scope of that principle. Mr. Madison’s lawyers have argued that because he can’t remember the facts that led to his conviction,
he is in a position comparable to those who were found
previously to be incompetent to be executed because
they can’t understand the reason why they’re being executed. Now, the difference here that makes this an interesting
case, jurisprudentially, is that he hasn’t been found incompetent to understand the logic of
the situation, ie., that he did, in fact, commit this
crime decades earlier, he’s going to be executed
because he committed that crime decades earlier, he just can’t remember
the facts of the crime. And so the essential question
in the case is whether that principle of Ford
against Wainwright applies in that circumstance, the petitioner, Madison, makes the argument that, well, of course it should apply because the notion that
the retributive purpose of punishment can’t be fulfilled in that circumstance applies equally to a person who cannot remember the facts that gave rise to the conviction, the action that he took
that put him on death row. The state argues that, well, no, in a situation in which a defendant can rationally understand the connection between the acts that he
was convicted of committing, and the carrying out of the punishment, that that defendant’s in a
categorically different position, and that the deterrent value
of capital punishment can still be effectuated by executing this person. And that, you know, unlike
some of the other diagnoses of incompetence, a diagnosis
of being ineligible for the death penalty by virtue of dementia will open the
door to many more claims on the part of capital defendants, particularly given the fact that we live in this world in which most people on death row are gonna die of old age, and not be executed, and therefore, that there will be some
significant number of these cases. You know, this is a case that, I think, had Justice Kennedy been on the court, you could see this case unfolding in a manner, not guaranteed, but I think probably likely
unfolding in a matter that, unfolding in Madison’s
direction, in that it’s a case in which I think Justice Kennedy’s instincts would have been appealed to by the nature of the arguments being made here, and it, although it could create
some additional subset of defendants on death row
who would have claims to try to defeat their execution, in
the great scheme of things, it’s not gonna involve any
significant structural change to the way capital punishment
is being carried out. I just think it’s gonna be
a very different proposition with the new court,
however, and this is a case, I think it’s scheduled to
be argued the first Monday in October, so, you
know, that’s, you know, that’s another significant consideration, I guess whether this
initial argument will be before an eight or a nine justice court. But anyway, so that’s the case. – And a four-four affirmance
would mean he’s executed, right?
– He’s executed, right. – Anybody else have a thought on this one? – I just wonder, you know, I was thinking, or mentioning before, are there areas where there might be some movement. It’s not obvious to me why the
four conservative justices, or five, why none of them is, is amenable to much movement
on the eighth amendment issues. It appears that way, it doesn’t seem, there hasn’t been any sign (mumbles), but I’m not sure what the
political constituency is for that, or the jurisprudential
priors are for that. It’s not a, I don’t think it’s a big issue in sort of Federalist Society circles, and I wonder whether it’s
a possible area one day, maybe I’m just being too hopeful, where one or more of the
conservatives are willing to have some movement there,
I don’t have any real insight into it, I’m just curious
why that has been– – Well, you might start with the fact that Justice Scalia wrote a dissent that says there is not such thing as evolving standards
under our constitution. – I’m just, I’m, but I’m
surprised there are five who think that, necessarily.
– Okay. – Well, of course, this case, I, you know, whether you’re right or
wrong about that, Marty, I don’t think this is a
case where you’re likely to see that kind of movement
because this is a case where I think the action
is likely to migrate from the substance of the
claim to the process arguments that the state of Alabama’s advancing, that, you know, this can,
you know, one of the things that tends to lead
conservative justices not to support the claims of
people on death row is when they seem to be sand
in the gears type claims to conservatives, that you’re
trying to make the process of carrying out a lawful
and valid execution, difficult or impossible by
generating additional claims, which have got a factual basis, and therefore have to but adjudicated. And I think that that, whereas I think that this would have been a case with Justice Kennedy
that was more anchored in the substance of the
eighth amendment law, I think those procedural kinds of issues are gonna take center stage. – Okay. – Yeah, my only comment is, you know, if I were a Supreme Court reporter, one of the things that would
kind of intrigue me is trying to figure out when the
other justices got wind of the idea that Justice
Kennedy was retiring last term, and I think this case
is prima facie evidence that they didn’t know as of February 26th, which was the date this case was granted ’cause I don’t think granting this case, if you were a liberal
justice, makes a lot of sense, if you know that Justice
Kennedy is not gonna be around to decide it. – So would it, would it
have been one of those where it’s a cert denied, and two or three of them dissent from denial? – Maybe, you know, but,
but, you know, again– – If he is gonna be executed, that way. – Yeah, no, I hear you,
but I don’t, you know, and maybe your right,
maybe death is different in that respect, and they’d grant it, you know, just to forestall things. But I don’t know, I mean, it’s hard to, hard to think that if you’re
one of those justices, that you think granting
this case on February 26th, if you know Justice
Kennedy’s not gonna be around to decide it, it’s gonna make
eighth amendment law better, not worse, from your perspective. – Yeah, I totally agree with that. – Yep, totally. – Questions? All right, Kannon? – All right, well, I’m gonna talk about Gundy versus United States, which I think is gonna be argued on the next day, it’s gonna be argued on October the second, which is two weeks from tomorrow, this is
a very interesting case. It involves the non-delegation doctrine. Those of us with multiple children think of the non-delegation
doctrine as the principle that an older child shall
not delegate household tasks to any of his younger siblings, but this is the legal version of the non-delegation doctrine, which is a bedrock principle, the fundamental principle being that Congress should not
delegate legislative authority to the executive branch,
this is a principle that the Supreme Court
has long articulated, but rarely applied to
invalidate congressional action. It has been invoked
episodically since The New Deal, but never with the court invalidating a congressional enactment. The principle, as the Supreme
Court has articulated it, is that Congress, in enacting legislation, can of course afford broad discretion to administrative agencies
to implement its enactments, but it has to articulate,
in the words of the court, an intelligible principle for the exercise of discretion, and I
think it is fair to say that there is uncertainty
about what exactly that means, and this case
may shed some light on it. The non-delegation principle
is one that is often invoked in traditional administrative law context, but it comes to the Supreme
Court, in this case, in a somewhat unusual
context, in the context of the criminal law, and in particular, a challenge to a statute known as SORNA, the Sex Offender Registration
and Notification Act. The statute was passed in the 2000s, various issues concerning
the interpretation of the statute have come to
the Supreme Court previously, I think it’s fair to say that even by the standards of Congress, this was not a terribly
elegantly drafted statute, and it has all sorts of
ambiguities and issues. But the issue that is presented in this case is simply the question of whether Congress contravene
the non-delegation doctrine when it passes this statute. As the name suggests, this is a statute concerning
sex offender registration, its provisions are relatively
intricate, but I think I can express Congress’s primary
goals relatively simply. First, Congress wanted to establish certain minimum standards for sex offender registration,
sex offender registration, as you might expect, is an
issue that is handled primarily on the state level, but
there were some variations in the standards adopted
by the various states, and Congress sought to
address those in SORNA. Second, Congress sought to
require sex offenders to, among other things, report
their inner state travel to state authorities, and
it imposed criminal offenses for offenders who traveled inner state, and failed to report their
travels to state authorities, invoking Congress’s power
under the commerce clause. And third, and most relevant here, Congress permitted the Attorney General to specify the applicability
of the reporting requirements, and that’s the phrase,
and the statute specified, the applicability of the
reporting requirements to sex offenders who were convicted before SORNA was enacted. And, at least if you believe
the secondary sources, there are somewhere in the neighborhood of half a million sex offenders
who fall into that category, as to whom SORNA is being
applied retroactively, and the question then becomes, you know, how is that going to work? And in the wake of the enactment of SORNA, the Attorney General
promulgated regulations, somewhere unusually, these are actually Department of Justice regulations, that basically made the
reporting requirements applicable to all pre-SORNA sex offenders, though there’s been some
variation over the years about exactly how that’s
going to operate, and whether pre-SORNA sex offenders get credit for certain amounts of
time served, and the like. Those details are really
not of great significance. So the petitioner in this
case is an individual by the name of Herman
Gundy, he was convicted of sex offenses prior to
the enactment of SORNA, and he was eventually convicted of failing to report inner state travels. So this is an individual who sort of falls into this category of persons as to whom SORNA is being
applied retroactively, and he is challenging his conviction on non-delegation grounds. And his argument is a
pretty straightforward one, it is that Congress, when it delegated, in his view, to the Attorney
General the authority to determine which pre-SORNA
sex offenders should be subject to its substantive requirements, failed to comply with the
intelligible principle requirement because it simply afforded
the Attorney General unfettered discretion to
make the determination about which pre-SORNA
sex offenders qualify. Now, the government’s response
to this is that SORNA, in fact, did offer such
unintelligible principle. In its view, SORNA gave the
Attorney General the authority and the directive, in its view, to, in the government’s own
words, and I’m quoting from its brief, “To achieve coverage “of pre-SORNA offenders to
the maximum extent feasible.” And so the government’s view is that embedded in this principle, that delegates authority to
specify the applicability of SORNA’s reporting
requirements is this directive that just says, look, we want you to cover these pre-SORNA sex offenders, again, to the extent feasible. The petitioner’s response,
not surprisingly, is that that’s nowhere to be found in the language of the statute,
that the statute, again, constitutes an unfettered
delegation of discretion. Now, notably, at least
three members of the court, two of whom are still serving, have previously expressed concern about the scope of the
delegation in this provision. Justice Scalia wrote a
separate opinion in one of the court’s earlier cases
involving the interpretation of SORNA, expressing concern
about this delegation. He was joined, notably,
by Justice Ginsburg in that opinion, and then Judge Gorsuch, when he was serving on the Tenth Circuit, expressed a very similar
concern about SORNA in, I believe, a dissent from
the denial of (mumbles) review in one of these cases
in the Tenth Circuit. And I think in light of
those separate opinions, I think there is a very high
likelihood that the court will, in fact, apply the
non-delegation doctrine here. There are all sorts of
interesting questions about the scope of that doctrine, whether the court might
seek to put a greater degree of teeth into the intelligible
principle standard, Justice Thomas has
suggested, in one of his kind of characteristic, separate opinions, that the court, in fact, should do so, but I, for one, am pretty skeptical that this is going to be
the vehicle for the court to do that, I think that this
is just about the worst case that the government
could have for attempting to defend a statute against
a non-delegation challenge. Not only is the statute, by its terms, quite broad, but this arises
in the criminal context, or at least in the context of a statute that has criminal consequences, including for the petitioner here, and it arises in a case
that has an overlay of both retroactivity
and federalism concerns, and these are the contexts
in which the court tends to be at its most
sympathetic to challengers. And so I suspect that what
we’re going to get out of this decision, particularly if it comes from an eight justice, rather
than a nine justice court, is a decision that applies
a non-delegation doctrine, but says comparatively little about the scope of that doctrine. I would just add one other thing, which is, that what is
interesting about this case is, this is one of those classic cases where the non-delegation
doctrine has been, you know, I think something of a cause in the conservative legal community, but yet you have the Trump administration, and the Trump administration’s
Solicitor General’s office, defending the statute, Jeff Wall, the Principal Deputy Solicitor General, is listed on the brief, even though this is
technically a criminal case, I wouldn’t at all be surprised
to see Jeff argue this case in a couple of weeks, but I have to say that in reading the government’s
brief, my reaction was that the government took
one look at this case, and is hoping simply to lose it narrowly. (panel laughs) – Other comments on that? – I guess I have one
comment, slash, you know, question for the panel,
which is, you know, to me there are perhaps difficult cases about the non-delegation doctrine, like you need to have an
intelligible principle, and so when Congress tells the EPA to, you know, set regulations, and gives them, like, some general
guidance, is it good enough? But, you know, this is a case
with criminal consequences, and it seems like the implication of the government winning would be that the Attorney General
could define things as crimes, himself, kind of without
Congress, and I can’t imagine that that is something the
Supreme Court would accept, and I wonder if that’s really
a narrower way to decide this. I think that it’s been,
this case has been briefed, that that’s kind of been
briefed as a separate issue, as, you know, an easier
way, and so I’d be curious to see what folks think, and just, you know, maybe one data point. During the time I was in the SG’s office, we would occasionally see cases in the lower courts where the
government would have a case, would have, like, an immigration case where it would have, or a statute that would have immigration consequences, and also criminal consequences, and issues would arise about deference, like Chevron deference, could
you get Chevron deference to the immigration, you know, opinion that the Bureau of, the BIA has, when it also has criminal consequences. And, you know, at least
my view at the time was, like, oh, how could we seek deference? We’re not supposed to be
defining what crimes are. Well, here the AG is actually defining what a crime is, it’s not
even a question of deference, so I just have a hard time believing the government will get
very far in this one at all. – Yeah, I mean, I think, Nicole, the government concedes in its brief, you know, that very hypothetical, I mean, there’s a line
in the government’s brief that says, “If SORNA in
fact authorize the executive “to create new federal
crimes out of whole cloth, “that would raise substantial
constitutional questions “about non-delegation under any standard.” And for those of you who are not adept at translating SG speak, substantial
constitutional questions, I think is gonna mean,
we wouldn’t defend that, we would definitely lose. But I think the real
problem for the SG’s office, in this case, is, you know, how do you go about distinguishing this provision from a provision that does exactly that. I mean, I just really think that if, you know, Congress said to the, the Justice Department,
if Congress passed a law that said, you know,
it is for you to define what constitutes a federal
drug offense, I mean, I don’t know that the Supreme
Court would even bother to hold oral argument, they would say– – Well, Congress has
actually done that, you know, you, the government,
the AG schedules drugs. – The AG does schedule
drugs, but I think it’s fair to say that Congress has provided
a somewhat greater degree of specificity in 841, or
whatever the provision is. – Well. – So one strange thing about this is that this would be so
easy for Congress to fix, and the question is, which way does that cut with the justices? So the SG comes up with
an intelligible principle to the maximum extent feasible, if that were in the statute,
the government would win. And if the court holds that
this is unconstitutional because it’s only
implied, and not express, it’ll take Congress, even this Congress, a little day or two to
put that in the statute. And the question is whether,
if that’s all they’re doing, is sort of teeing up to
Congress this easy sort of housekeeping task, will the left side of the court be nervous or anxious about opening up the
non-delegation doctrine, which is, as one scholar has quipped, has had one good day in
American history, right? There was a single day
in 1936, I think ’36, or ’35, when the court
invalidated two statutes on non-delegation days,
and every other day, it’s been a bad day for the
non-delegation doctrine. Well, do they want a second bad day, where this does have all this ideological and practical valence for
other issues and statutes, or will they just see this as being one of those areas where, yeah, we
can get a nine-zero because, you know, you can’t say nothing,
and you have to be express, if the standard’s gonna be
the maximum extent feasible, just throw that in the statute. And it’s an easy one for some
consensus among the justices. I don’t have a good sense of whether that makes it an easy or a hard case, the fact that it would be
so easy for Congress to fix. – So I, you know, I’m gonna take this in a little bit different direction, but I think this is
gonna be a significant, potentially significant case
because it’s connected up with the whole idea of Chevron deference, and how courts are going to interact with the executive branch,
and administrative agencies, and particularly their interpretations of ambiguous federal statutes in that. And then Judge Gorsuch in his, you know, now famous concurring
opinion, the Gutierrez case in the Tenth Circuit identified this. Justice Scalia’s critique of the idea that courts should make the judgment about the meaning of a
statute that’s ambiguous that an administrative agency
is administering is that, well, as between government
bureaucrats and judges, at least the government
bureaucrats are connected to a system that’s held
politically accountable, and judges aren’t, and, you know, to my mind, that’s always
been a pretty strong defense of the idea of Chevron deference, or some kind of deference, anyway, to agency interpretations
of ambiguous statutes. One answer to that is, well,
we can fix that problem, we just need to reinvigorate
the non-delegation doctrine. And that’s exactly what
then Judge Gorsuch said in that opinion, and this case
being such an egregious example, I think, of concern about
non-delegation does seem to me to actually be an opinion, a case that could generate some opinions that are gonna have importance, as that other set of
issues starts to play out. – Yeah, and I would pick
up on the last thing that Don said, which is, this is a case where I would watch the separate writing because I do think we’re
gonna get a majority opinion that’s probably pretty narrow, but it’ll be interesting to see, you know, if we get
substantial, separate writing that really explores the
contours of the doctrine. – So just to add the potential
significance of this, the entire administrative state depends on a non-delegation doctrine
that has no teeth in it at all. The court has said, you
can say to an agency, do what the public interest requires, and that’s an intelligible principle, and there are many
delegations of authority that may not be that general and vague, but are not all that specific, either. And I do think there are some justices on the court who see a
real problem with this, including Justice Thomas,
but also Justice Gorsuch, and I do think that the justice to come is also somebody
who might feel similarly about these kinds of broad delegations. So I agree with, I guess
both Marty and Kannon here, which is that we’ll, we’re apt
to see a very narrow opinion, that just says, this
gives no guidance at all, but I do think we are gonna
see some separate writings that start to question the wisdom of the
court’s previous decisions, saying that intelligible principles is all that is required, and
that there are, you know, people saying there are some decisions, as Justice Thomas has already said, where I don’t care if there’s
an intelligible principle or not, this is something Congress could, should be doing because it
has the power to legislate, not the, and it can’t delegate that. And so, and it is related also to
Don’s point about Chevron because I think a lot of
them feel the same way about Chevron, that there
are, maybe there’s some rule for these kind of minor
technical decisions to be made by administrative agencies, but big issues of major policy
should be for the court, so– – Given that, Irvin, the
fact that the chief knows that there’s gonna be that
difference of opinions, it’ll be interesting to watch
his assignment in this case, whether he gives it to
someone on the left side of the court who will
write a narrow opinion, and then welcome the broad concurrences, or to one of those who
would write a broad opinion, and then ask the liberals to sort of say, this was all unnecessary to the decision. – Anyone else, press, questions, anyone? All right, then we have now two decisions, two cases of the three, in which
a party is asking the court to overrule one or more of its precedents. There are three cases
coming up in this term where that’s true, and I
think these are two of ’em, and I, they may be just as important for what they are going to
tell us about the new court’s approach to star decisis, as they are for their own significance,
which they are significance in their own right, but
we’ll start with Nicole, who has Gamble.
– I love this case, so this is a double jeopardy clause case, and I’ll start from the beginning. So the fifth amendment has a protection that you’re not supposed to be twice put in jeopardy for the same offense, and the language of the
statute says same offense. And so there was some, a period of time in the Supreme Court where
they had to consider like, what does it mean to be put in jeopardy, what constitutes the same
offense, how do you define them, and those questions pretty
much all got answered, and things were quiet for awhile. And then there was a case a few years ago, Puerto Rico versus Sanchez Valle, which was one of the first in a long time to raise what’s called the
separate sovereign exception to double jeopardy. I’m very interested in that case, ’cause I argued it,
and the government won, and Don was involved, so it
was a great time for all of us. (panelists laugh)
(audience laughs) And so that– – One of the few cases you
won that term, right, Don? (audience laughs)
(panelists laughs) – Thank you for that. (laughs) And so that case was really interesting because there has been, in US law, a longstanding exception
that even if something is, the two offenses are the same offense, like the same element arising
out of the same conduct that the person did, that
you could be prosecuted twice for them if they were
by a state government, and by the federal government, this is the separate sovereigns exception. And the idea behind it was, you really, they’re really not the same offense because they’re offenses
against different sovereigns. You offended the state, and you offended the federal government, and you can be prosecuted for both. Now, I have to say, parenthetically, this did not arise a lot because, as probably everyone in the room knows, there are many, many federal
and state criminal laws, and it’s often not that difficult to find an offense that
is a little bit different from the state offense,
or the federal offense that’s already been prosecuted, you just find one that
has a different element, and then you’re good to
go, and you don’t even have to worry about this
double jeopardy question. But this longstanding
precedent said, state, federal government, go
ahead, so Puerto Rico, which has had many issues relating to its status as a US territory, and what that means, and
various historical events, said, we’re gonna take advantage of the separate sovereign doctrine, too, like a state can do it, so we can do it, and so we’re going to. And so that raised a very interesting constitutional question about, does Puerto Rico have the
same status as a state, for purposes of this
separate sovereigns exception under the double jeopardy clause. And the Supreme Court,
after much briefing, and many interesting arguments, said, no, Puerto Rico, you’re a territory, you’re not a state, you don’t
get to take advantage of this, you know, if we just look at
it as a constitutional matter, you don’t get to take advantage of the separate sovereign exception. But there was an amicus
brief filed in that case, I think it was by, like,
the Florida Bar Department. I mean, I read it carefully, I don’t know how many other people did, at
least two, as it turns out. And so that decision said, look, this separate sovereign idea is terrible, and it turns out that we took this idea, this double jeopardy
protection from England, and England wasn’t following anything like this separate sovereigns idea. And so it’s been in US
law for a long time, but, like, you should get rid of it because there’s really
no basis for it at all. And so it didn’t really come up, you know, in the main briefs, or at oral argument, but some justices were paying attention, and Justice Ginsburg
wrote a (mumbles) opinion in this Puerto Rico case, Puerto
Rico versus Sanchez Valle, joined by Justice Thomas, so kind of an interesting
pairing you don’t see every day, and said, “I think we
need to reconsider this.” And gave some reasons why,
perhaps, it did not make sense to have this separate sovereign exception so that a person could be
prosecuted twice, you know, among them, like, you’re supposed to, the double jeopardy clause is supposed to be protecting you from,
you know, being harassed, by being prosecuted many times,
and protect your liberty. And it’s just not really doing
that if you can be prosecuted for the exact same thing by the state and the federal government. So a couple years passed,
somewhat unsurprisingly, a large number of criminal
defendants made arguments based on the idea of overruling these decisions that allowed the separate
sovereign exception, and a number of cert
petitions got stacked up, you probably saw them, and they were, many of them were held for
many, many conferences. I think this case that
was granted, Gamble, was relisted, I don’t know, seven, eight times, like, a lot of times. But the Supreme Court
decided to take the issue, and so now it has this case
that tees up this legal, this purely legal question in Gamble versus the
United States, which is, should the separate sovereign
doctrine be overruled? So I’ll start with the
government’s position, which is no, and they basically have, I would say, two arguments. Argument one is, the separate sovereigns
exception is required by, makes sense in light
of, something like that, our dual structure, so we
are in a unique position here that there is a territory, the territory of the United States has two
sovereigns operating within that same territory, the states,
and the federal government, and they both have the power to prosecute, and if you don’t have, don’t
give them both the ability to prosecute, the states could do things to intrude on the federal
government, and vice versa. So, like, what if a state went to prosecute a civil rights offense, and just gave the person a,
you know, didn’t prosecute them for much of anything, or got
them a really lenient sentence, or something like that, the
federal government would be barred from prosecuting,
and, you know, vice versa. And so the, to the extent that there is, you know, a really meaty legal argument on the government’s side of things, it is one based on the structure of, you know, our constitutional
structure, dual sovereignty, and the powers that both state
and federal governments have. The second argument is
really stare decisis-based, and the government hit that argument hard in its brief in opposition to cert. One tends to think that it
might not matter as much, now that the Supreme
Court has granted review, the government hasn’t filed its brief yet. And so there, the Supreme Court said, or the government said, you know, we’ve had 150 years of precedent that has recognized this
separate sovereigns exception, and things are working fine,
and essentially we should stick with it, so, you know, not bad arguments. But then you get to, you
know, the other side, the criminal defendant’s
side, which has, I would say, a lot more arguments, you
know, argument one is, the purposes behind the
double jeopardy clause, this is about individual liberty, and a person is not supposed
to be able to be harassed by, you know, two governments
operating in the same place that would prosecute you
for the same offense, and we need some protection against that. You know, argument two, the
one I alluded to before, historically, that if you look at what was happening in England at the time, it’s not just that there
wasn’t this doctrine, but that to the extent the
courts had considered it there, they had rejected it, and so
I think there are examples in the briefs about if you
were prosecuted in England, versus prosecuted in Wales, could, you know, could you be prosecuted in both for the same offense, and the
answer, in England, was no. I should say, on the government’s side, they would say, yeah, that’s fine, I don’t care what happened in England because it wasn’t the same situation that we have with two sovereigns operating in the same territory,
those were situations of separate territories. Other arguments, the defendant response to the government’s, you know,
really big legal argument by saying, I can’t but that you’re saying that the dual, you know, that
dual sovereignty is something that’s going to cause me to be, you know, twice prosecuted because it’s supposed to protect individual liberty, like, the whole point, in terms of
what the Supreme Court has said about having dual sovereigns,
splitting the annum of sovereignty is to protect
individual liberties, this is a big idea of Justice Kennedy’s, so how can you use it to, you know, essentially keep me in
jail longer, harass me, prosecute you, prosecute
me twice, that’s terrible. And then, you know, two other arguments. One is there have been other cases, which, you know, those criminal law nerds in the audience might know about, where the Supreme Court has
previously considered, like, if a state got evidence in
violation of the constitution, could they just give it
to the federal government? This was the silver platter
doctrine, which existed for awhile, and the answer under
Supreme Court precedent is, like, no, you can’t just have
the state get the evidence in violation of the constitution,
they give it to you. There was also cases about whether the, like, the state or federal
government got evidence that was compelled in violation
of the fifth amendment, then could the other one use
it, and that answer’s no. So if you think about, like, kind of unifying fifth amendment
law, and trying to get it all, like, relatively consistent,
that seems to be, you know, cutting in favor of getting rid of the dual sovereignty doctrine. And then, you know, the last question, which I think is gonna
be the most interesting when we see the government’s brief, which I don’t think has been filed yet, which is, the real practical
implications of it. Like, the government
definitely in its brief says, we have this, you know, sovereign power, and we should be able to exercise it, and the state shouldn’t
be able to intrude on it, and we have to respect them, you know, so it’s vice versa, but if you think about the times when, you know, there is an offense, there’s something bad that someone does, if you can’t
find two different statutes to prosecute it under, in
light of just the number of, you know, criminal statutes out there, I mean, there are very few instances, I think, in which that was true. And actually the government
used that argument in its brief and opposition to cert,
to try to get cert denied. So we’ll see how much it
comes back to bite them, but, you know, I would
expect there’d be a lot of questions about, you know,
I see that you’re unhappy with this, government,
the idea of getting rid of this extensive precedent, but is it really gonna hurt you at all? So my prediction is that the
government is in trouble, and that the, that Gamble’s going to win, although, you know, it’ll
be interesting to see, you know, what bothers
individual justices, and how they line up, especially in light of the Ginsburg plus Thomas concurrence from a few years ago.
– Other comments? – I mean, I’ll just jump in,
I mean, I agree with Nicole, I think this is a very
interesting case, I also agree that the government is
in deep, deep trouble. Just, you know, I think
from the perspective of the importance of
this, I mean, you know, Nicole’s point that
there’s always something that the federal government could find that’s not the same offense
for Blockburger purposes, and therefore, maybe this
isn’t a big practical deal, I think there’s some truth to that, but I also think that
there’s the opposite way of looking at it, you
know, I think may appeal to the right side of the
court, which is, you know, in a world where, you know,
18 USC was really narrow, and really focused on
distinctly federal crimes, like, this doctrine
shouldn’t matter at all because if all the federal
government is doing is prosecuting crimes with a
very distinct federal nexus, there really shouldn’t be any overlap. And I think there’s a broadly shared view on the Supreme Court that’s certainly, I think, a view that’s accepted on the right side of the court, but was really, you know, embraced in Justice Kagan’s dissenting opinion in the Sarbanes-Oxley fish case, about the over-federalization
now of crime. And so if, if you’re a justice who tends to think that Congress has
been over-federalizing crime, and in particular, passing
federal criminal statutes, not because there’s some
super distinct federal element to the crime, but just because,
hey, it’s relatively easy to do, it’s relatively
popular, you’re tough on crime, you know, prospective
criminal defendants either don’t self-identify, or
don’t have good lobbyists, so it’s just a really easy
thing for Congress to do. So 18 USC, in a world where
it goes from this to this, this becomes a way, I think, for some of the justices to strike
a little bit of a blow against the over-federalization
of crime by saying, look, if you’re prosecuting a federal
crime that’s just the same, has the same elements as a state crime, the two sovereigns just
get one shot at it. And then, just the other thing to amplify, you know, I’m gonna talk
about one of the other cases where the court has possibility of overturning one of
its prior precedents. I think this case is important because I think the two other cases that are lined up for the
court to revisit cases on stare decisis grounds are
likely to be five-four votes, and probably likely to be five justices that are more conservative, that would at least be the most tempted
to overrule a precedent. And so this is a case where
I think it will be kind of important if this is
not a five-four decision, I think because of what Justice
Ginsburg has already said, there’s a real good
chance it’ll be six-three, there’s a chance it could be nine-zero. And I do think, you know,
it will be important to the chief, let’s say,
to try to make this a case where it doesn’t become
the third of three cases where stare decisis
considerations are overridden by the five conservative
justices over the dissent of the four more liberal justices. You know, I thought one of
the most interesting votes that was cast last term
was Justice Ginsburg’s vote in the Wayfair case because she
was the only liberal justice that voted to overrule the Quill case. And, you know, I had
this suspicion that if, you know, if you were one
of the liberal justices, like, why vote to overrule Quill ’cause who really cares
that much about Quill, and who really wants to pay more taxes on their internet purchases,
and why would you vote to overrule a decision
when there are other cases, like the case involving
whether to overrule Abood, where you really want to
bang the stare decisis drum. And I think there’s kind of
another dynamic like that here, which is, you know, I do
think, I don’t think of, as an a priori matter, I
don’t know why the left side of the court wouldn’t think overruling the separate sovereigns
doctrine is a good idea, but I think the only thing
that may sort of kind of put any limits on their
thinking about that is, you know, they may be worried about what stare decisis
means, much more broadly. – Yeah, I mean, I wonder if this is a case that’s really gonna implicate kind of how stare decisis
operates because, you know, the practical reality, as
Nicole says, is that, you know, I think that the ability
to prosecute twice for effectively the same
offense has become something of an insurance policy for prosecutors. I mean, I think particularly
in high profile cases, what often happens is that the federal government
goes first, secure in the knowledge that if
something goes wrong, for whatever reason, there can be
an ensuing state prosecution, you know, I don’t think
that the availability of that insurance policy implicates a lot of the reliance interests that serve to undergird the principle
of stare decisis. It’s kind of hard for prosecutors to say that they have a legitimate interest in having that opportunity
for a do-over available, and as Paul says, you know,
in many of these cases, the federal hook is just a convenience for what is effectively a
duplicative prosecution. So I don’t know that
there’s gonna be a lot of sympathy for the federal
government in this case, and I thought that
petitioner in his brief, I think it’s a he, did a very good job of arguing that this separate
sovereigns doctrine kind of came out of whole cloth,
and that there isn’t really a very good jurisprudential
underpinning for it. – Anybody else, press questions, yeah? – [Man] Well, given
the, despite the concern about how (mumbles) or
credible is any crime, given, though, that there are, you can almost always
find some federal statute that’s different, with some
element with a state crime, what practical differences
is it gonna make? And I think, actually,
it’s just the opposite in civil rights cases, they
let the state go first, and the feds have (mumbles) because it’s a state sponsored case, except for the (mumbles). But, so what difference is it gonna make, as a practical matter, when there are, you can almost always find
some federal statute (mumbles). – I don’t think, especially based on, you know, my government experience,
that it’s gonna make all that much difference
as a practical matter, and I think that’s because of two factors. One, there’s actually a
fairly longstanding policy that’s referred to in the briefs, about how the federal
government will decide whether to bring a suit after the state does, and that, and that it basically counsels in favor of caution, and
a real consideration as to what the federal suit’s going to add. And so that policy, I think,
has been around since 1960. But just second, you know, I imagine that what the government
is doing right now, in preparing their merits brief, is actually trying to
come up with instances of, like, statutes where you
can’t bring both the federal and state prosecution for some reason. You, like, there wouldn’t
be another state statute for some certain offenses, and I, you know, I’m kind of generally aware of a few instances in which that’s true because it was something we
considered a few years ago, but, and there are a lot of statutes, so I imagine they’ll come up with a list, but I can’t really imagine
that it’s gonna be, you know, a lot that would make
a difference, you know, in, a real difference, in terms
of criminal prosecutions. – [Man] And can I just add, to followup, clearly this case is
about offense, but, just, in terms of how the conduct
was defined (mumbles), but is there any thinking in this case that you shouldn’t be charged
twice for the same conduct? – That’s not this case.
– Yeah. – That might be the next case, I mean, which is to say, you know, I
do think there are some areas where this will make more
of a practical difference, I mean, I haven’t, you know, I had, you know, I did an amicus
brief in this case, but I didn’t study it from
the government’s perspective, the way that Nicole did, but, you know, controlled substances, areas like that, you know, I do think there are areas where the elements of the
federal offense really aren’t that different from the state offense, so I think there’s some areas where it’ll make a practical difference. But I also think that if the
court recognizes the doctrine, overrules the separate
sovereigns doctrine, it will, over time, potentially
put a little more pressure on the Blockburger test, which
is the test that says that, you know, it’s not the
same offense as long as there’s essentially different
elements to each offense. And I think, you know, certainly there’s, you know, if this ball
gets rolling a little bit, and this could be one of
the areas that, you know, Irv alluded to, or you might
get, you know, sort of both, you know, some conservative justices and some liberal justices
who are a little more excited about sort of double jeopardy principles. And, you know, you could, over time, sort of erode Blockburger, or
expand it, and have something that makes it a little
bit harder for sovereigns to prosecute twice for the same kind of common nucleus of operative fact, or whatever you think
of in the civil context. – One peripheral thing about the case, not involving the double
jeopardy clause itself, that I found notable. The Solicitor General,
Noel Francisco, has, up to this point, been recusing himself from any cases in which
Jones Day is the counsel, as they are in this
case, and I just noticed that he did it in this case, too, at least at the cert stage,
which might be interesting, just because Jones Day, I think, continues to be the counsel
to the Trump campaign. And therefore, it’s an
interesting question whether Noel would recuse
himself if he were ever asked to become the acting Attorney General, or Deputy Attorney General,
for issues involving the Mueller investigation, for instance. – A true sidelight.
(panelists laugh) – I guess I have one last
thought about double jeopardy, which is, you know, this case, I think, is potentially attractive to the court, to try to bring people together
for a couple of reasons. First of all, it’s well in the vein of what has happened,
especially in criminal law, of kind of bringing
existing law into some kind of coherence and harmony in, especially with historical practice,
and kind of making sure that things make sense,
you know, in my view, a lot of the court’s fourth
amendment jurisprudence is, like, do we think this
makes sense, do we not? And I think that there’s this, you know, I expect a decision in
this case, you know, will be the court, thinking
that it’s really trying to make sense out of a doctrine
that didn’t make sense, and have it be consistent
with historical practice. And, you know, the other thing, I think this is what Irv
and perhaps Paul said, you know, it just has the
potential to be, like, an easy win for the court, you know, a way to get people to
agree, and on a case where it would be, like, rights protective to individuals, which, you
know, those are good decisions to offer once in awhile, and so, you know, I would think that this
would be that kind of case. – So I think the two people
to watch here will be Kagan and Breyer, I think up until now, they’ve had a pretty much no never view, and I, I will predict that they will stick
there, but we will see. – Never on what?
– Stare decisis. – Stare decisis.
– Oh, yeah. – And not because they love
duplicative prosecution. – No.
(panelists chuckle) No, so, but, you know, maybe,
I could be wrong about this, but I, you know, when I
brought, when I brought, introduced this subject, I
said we’ll learn something about stare decisis, and I think one of the things I’m learning
is, nobody really thinks that there is is a stare
decisis constraint, and, you know, if you think
the decision is wrong, a majority of the court
is gonna overrule it, period.
– At least in constitutional cases.
– And so– (overlapping chatter) In constitutional cases, okay, and so that’s one of the
things, I think, that, I, there are questions to be raised. There’s always all these, you know, paragons of virtue thrown
at to stare decisis, does, but does it mean anything, at all? Other than, you know, you
march through these factors that the court has announced
about when it’s appropriate to overrule its case, and guess what, the first and most important factor is, if you think the decision was wrong, and if you do, you march
through the other factors, and, you know, overrule
it, but we shall see. We have one more along
these lines, which Paul has, and just to say that Paul
had this case the first time, and was looking for an overrule, and had an eight justice
court, and so couldn’t, so. – Right, but I also had a
backup plan, which was– – That’s true. (laughs)
– Which turned out prudent, and it’s why it’s back at the court. You know, just on the broader
point about stare decisis, you know, and I think Nicole
was saying this on her, you know, I don’t know if
her mic was hot or not, but, you know, I do think the one sort of caveat I would put on
that is, I do think that where stare decisis matters the least is when it’s a constitutional issue where you don’t have the reliance
interests of individuals. And so I think some of
the stare decisis cases that people care most about are those where the court has previously recognized an individual right or an
individual liberty at interest. And I think the cases where it’s hardest for the party that’s trying to
rely on the older precedent, and not get it overruled,
are cases like Gamble, where the only, you know, sort
of reliance interest is owned by the government, and the issue
is kind of more structural. And I think the court is
just more sort of tempted in those kind of areas to think, look, we sort of gotta get the constitution, the constitutional
structure right, and it kind of matters whether the two
sovereigns can both kind of, you know, prosecute the exact same crime, that’s a pretty big
structural consideration, and if we’ve gotten that wrong, we should probably get it right. And I think the same kind of
principles apply in the case that I’m gonna talk about,
which is the Hyatt case, where it’s a structural
state sovereignty issue. And I also think the, you know,
just as a bonus, sort of tip of the hat, the third case,
at least that I’m aware of, where there’s a stare decisis
issue teed up is this case about whether a takings
plaintiff has to exhaust all of their remedies before they
can bring their takings case under this Williamson County case. And that’s another one where, you know, the reliance interests are
on the government’s side of the ledger, and the party seeking to get the case overruled
has the individual right that they’re trying to vindicate. So I think maybe that’s a way of saying, the Supreme Court could overrule all three of these cases, and
still not tell you a lot about how they’re gonna approach a case when there’s a really
strong reliance interest on the part of somebody who’s trying to vindicate their
individual liberty interests. The Hyatt case, you know,
sometimes people talk in the Supreme Court about repeaters, cases that get to the Supreme Court twice, this is now gonna be a three-peater. And I’m not sure how many
times that’s happened in the history of the Supreme Court, you know, when my sons ask me, you know, “Has this ever happened in
baseball,” I always tell ’em, well, they’ve been playing
baseball a long time, so chances are, yes,
this has happened before. So I imagine we’ve had,
like, a three-peater before in the Supreme Court, certainly, like, in the original docket,
but in a not original case, to have the same case go up to the Supreme Court three
times is pretty unusual. The case here, the issue
here that’s teed up for the Supreme Court is whether or not states have sovereign immunity when they are sued in the state courts of other states, ie.,
their sister sovereigns. So, in this case, the
California Franchise Tax Board, which is part of the state of California, got sued for damages in
the state courts of Nevada. Interestingly enough, the
Supreme Court precedent that is at risk here is a
case where Nevada got sued in the state courts of California. So you might think turnabout’s fair play, and let’s not even look at
this case, but, you know, like I said, it’s the third
time they’ve looked at it, so they’re very interested in it. The last time that it
went to the Supreme Court, so Hyatt two, was when
I was not conflicted, so I was involved in the case. And at that point, you know, there were really two issues
teed up for the Supreme Court. One was whether to overrule
Nevada against Hall, which is the early ’80s precedent that said there was no
state sovereign immunity when a state is sued in
out of the state courts of one of its sister sovereigns,
and the other question was, well, at a bare minimum,
doesn’t Nevada have to afford California the same limits on immunity that Nevada
has essentially set up for Nevada state government entities, which principally was
a 50,000 damages cap. So Nevada basically waived
its sovereign immunity for suits against Nevada state entities, but put a cap on damages of $50,000. And so this case was
argued to nine justices, I will confess, I felt pretty good, walking out of court that day because one of the very first questions
out of the box was a question from Justice Kennedy that seemed to think that, you know, he was interested in overruling Nevada against Hall. I felt pretty good about
having four other votes, and then, you know, February 13th, and the untimely death
of Justice Scalia came, and the court, having argued this case to nine justices, the court
decided it had eight justices, and they decided,
essentially, and were express in the opinion that they were divided, four to four, on the question of whether to overrule Nevada against Hall. That’s why we were very
glad we had a backup plan, which was this argument
that at least Nevada had to give California the same limits on liability that they
gave their own entities, and that was decided six-two
in California’s favor. So it was sent back to the Nevada courts, essentially to apply those
principles, on remand, the Nevada courts did faithfully
apply those principles, and the damages for the
California Franchise Tax Board were limited to $100,000 ’cause there were two
claims for 50,000 each. And so, at that point,
you know, the grave threat to the California treasury from
$100,000 suit was, you know, was pretty limited, but the
court still was interested in taking this case a third
time on the specific issue of whether to overrule
Nevada against Hall. So, you know, here’s a case where, if the court had just eight justices, they lm certainly would have
passed of this issue ’cause we, like, literally already
know that the eight justices that are on the court right
now are evenly divided. But nonetheless, they took
this court, this case, they took it to the very end of the term, so at least Justice Kennedy probably knew that he was leaving, but nonetheless, they thought they’d tee this back up for the justices when they returned. So it’s a case where, you
know, I think, really, the only interesting question is whether there’ll be a
ninth justice to hear it. And it’s not scheduled for argument yet, so I do think it’s a case that, if they wanted to, they could not schedule for argument until they
had a ninth justice. And then, I think, if
there is a ninth justice, I think that there will
be a lot of attention paid to that justice at the
argument, and, you know, and I think the case will, will,
you know, how it’s possible that somebody’s vote could
change the second time around, but I think the arguments
were pretty well ventilated the first time around, so I anticipate that this will all come
down to the new justice. I would anticipate, frankly, that whoever that new justice is, as
long as it’s appointed by the current president
or vice president, they’re probably gonna be inclined to think that Nevada against
Hall was wrongly decided. – Anybody else on this one,
anything from the press? – [Man] How often has this happened, Paul, where this is an issue, what’s
the practical (mumbles)? – You know, it’s, this
doesn’t happen every day, so this isn’t, like, you know, something where the practical implications
are absolutely huge, but, you know, certainly,
and, you know, and in a sense, I think some of the practical
limitations were diffused by the earlier ruling, and, you
know, but I think, you know, certainly without the earlier
ruling, and this case, the original jury award was
for half a billion dollars. And you can see why there’s
a problem here, right? Because, you know, you know, the reasons state
sovereign immunity exists in the first place is
to protect the treasury. You might think that when a jury made up of Californians, like, you
know, has a dim perception that the award they’re
gonna give against the state is ultimately gonna be paid by taxes that they may be paying,
that might put a little bit of a governor switch
on what they’re doing. And then you can think
about sort of the incentives for a Nevada jury that
gets the taxing authority of California in their sights,
and can essentially just, you know, start filling out numbers. So I do think there is
a practical importance to putting some check on it, I think given that the court already put
a check on it in Hyatt two, I tend to think this
is probably, you know, about getting state
sovereign immunity law, which is something that some of the conservative justices
care very deeply about, right. So I think at, probably at this point, it’s more about principle
than about practicalities. – All right, so, yeah? – [Woman] There have been
several recent cases where, in the state court, out of
state taxpayers often (mumbles) that the states, another,
a state will go after them, will (mumbles) deny them a
(mumbles) from the cert petitions who were denied, but, so what
about the (mumbles) taxpayer? This is an individual, but what
if it’s a business, and how, how can they ever get back into courts? That’s, that’s the other (mumbles). – Yeah, though, I think
that that’s, you know, that’s sort of a different issue, that’s probably like the
post-Wayfair sort of, you know, round of litigation, which, I, you know, I do think
is making its way back to the Supreme Court, it’ll
probably take a couple of years. But, you know, those cases, you know, tend to get litigated in the state courts of the taxing sovereign, you know, maybe there’s a little
bit of problem with that, which is why there must be
some, like, due process limit on the extent to which a
state can start taxing out of state entities with very
little connection to the state. But here, the question
is really, you know, when the state itself gets sued by a private citizen in the state courts of another state, is there
some state sovereign principle? The 11th amendment certainly
doesn’t apply on its own terms, but is there some broader
principle consistent with the 11th amendment that protects the states
in that situation. – So I want to move onto the cases where there are petitions pending, and where some likelihood of grant, that seem the most important, we’ll start with Marty, who has sexual
orientation in title seven. – So I’m gonna speak fairly briefly, so we can get to a couple of other cases, as well, that haven’t been granted yet that might have more of a prospect of being heard on their merits this term, for reasons I’ll discuss
at the very end here, I don’t know whether this question is one that the court will address this term, but if it doesn’t, it
probably will next term. So the question, as most
of your probably know, is whether title seven of
the 1964 Civil Rights Act, which prohibits employment discrimination on the basis of particular
characteristics, applies to an employer who
discriminates against someone on the basis of sexual orientation, on the theory that such discrimination is, in the words of the
statute, because of sex. And this has been percolating
in the lower courts for many years, as many of
you know, and it has come up in the context of sexual
orientation in two cases, two petitions currently
pending before the court, and in the context of transgender
employees in a third case. The two sexual orientation
cases have been briefed up, the briefing was completed with an eye toward the long conference, but the court itself put
off the long conference, put off the consideration of these two cases indefinitely
without explanation. Recently, and the lawyers
in the third case, the transgender case, just
wrote a letter to the court, urging the court to hear
the three cases together, and as I’ll discuss in
a couple of minutes, I think that’s probably
what the court has in mind, to consider the three petitions together, something that it might
not do for several months because the SG might be, ask for a series of continuances in the transgender case. So the two sexual orientation cases, one comes up from the Second Circuit, the other from the Eleventh Circuit, they ruled opposite one another, one, the Second Circuit ruled
that discrimination against a gay man, in that
case, was discrimination on the basis of sex that was covered, whereas discrimination against a gay man in the Eleventh Circuit held
was not covered by the statute. I won’t go into a lot of
detail unless there are a lot of questions about the different theories, which are well-vetted in
the Second Circuit opinions, in a series of opinions by the judges on the Second Circuit, and
other courts of appeals. There’s several different theories of why this is discrimination
on the basis of sex. They all, in the end, I
think, sort of come down to the idea that if the
sex of the employee, whether the employee is male or female, is a but-for cause of their
treatment at the hands of the employer, would they
have been treated the same way if everything else were
held equal except their sex, that is, that is a clear instance
of when discrimination is because of the sex, if I were a woman, and all the other facts were the same, I would not have lost my
job, that’s the theory, underlying all the different
legal arguments in the case. And there are two basic
responses by employers on the other side, or to, to themes that are pressed hardest by the
employers on the other side. One is, that really, what’s
going on here is not, you shouldn’t think of
it as a but-for test because of standard, but more in terms of what was motivating the employer, and the employers who
are not being motivated by the fact that the employee
was a man or a woman, but instead because they
were gay, and in particular, the idea that we would
have treated someone of the opposite sex, who was
also gay, in the same way. So it’s sort of the Equal Opportunity discrimination question, but the court has never really resolved, an employer that would say,
no, I’m gonna treat men and women equally bad if they are sleeping with or attracted to
someone of the same sex. Yes, this employee happened to be a man, but if it were a woman who was attracted to a woman, would have
treated her the same way. And the court’s never really
dealt with that, and that, and one way of, and one argument is that title seven was not meant to get at that situation, right, that, that if the employer is equally stereotyping both employees on the basis of sex roles, or here, really doesn’t care about,
or purports not to care about whether they’re
one sex or the other, but is sort of getting
at something different, which is same sex attraction,
or same sex marriage, or same sex involvement,
that that’s simply not what Congress had in mind. And that gets to the
second sort of argument, which you’ve all heard, which is that not only didn’t
the 1964 Congress think that it was covering these sorts of cases, but it would have been inconceivable to virtually any legislature at the time. What’s more, the issue of whether title seven should be amended to express the cover sexual
orientation or transgender, I’ll get to the transgender in a second, discrimination has been the subject of repeated efforts in
Congress, under ENDA, but, in particular, in recent years. And Congress has declined
to amend title seven to more clearly and expressly
cover these sorts of cases. Those are the basic arguments,
there are vehicle problems with at least the Second
Circuit case, in that, well, one interesting thing about both cases, is that in both cases, the
employer does not claim that it really wants to
be able to discriminate against employees on the basis
of their sexual orientation. Both cases are at an early
stage of the litigation where the employers say, we
didn’t do it for that reason, we had the legal right
to do it for that reason, but that wasn’t the reason we did it, and in fact, we don’t
discriminate against gays and lesbians, and we
wouldn’t do so, right? When we, if we ever have to go to trial, we’re going to argue that it
was based on something else. In the Second Circuit case, one twist in the Eleventh Circuit case
is that it’s a public employer, as well, it’s Clayton County, Georgia, so conceivably covered by
the Equal Protection Clause, although not a claim brought in that case. In the Second Circuit case, the employer, a sky diving operation,
actually closed up shop. It no longer, this
corporation no longer exists, it was bought out by another company, and there’s an unresolved question about, we don’t know what the terms
of that agreement were, or whether the new company
has, has now taken on the, the possible legal liabilities
of the old company. So it’s not clear whether the old, the old company, who is
the respondent in the case, or the petitioner in the
case, has any stake here, other than ideological,
or their lawyers want to appear in the Supreme Court. It’s also the case, if I
might say, that the briefing in both of these cases
leaves a lot to be desired. None of my fellow, wonderful
Supreme Court advocates here, you know, repeat players
in the Supreme Court, three-peat players, in
Paul’s case, I don’t know what ’87 would, what the
word would be for it. But the Supreme Court bar
is not well represented in the cert papers in either case, and although the Second Circuit
case has a vehicle problem, the bottom side brief there for Zarda, is by far the best written,
and best constructed of the briefs, in either case,
it’s possible that there is some good Supreme Court advocates
lurking beneath that case. And so if the court grants
the Eleventh Circuit case, for instance, which has
less, fewer vehicle problems, it might want to grant both cases, it might want to wait til there’s a case with better briefing all around. But in particular, I think
the court made this move of its own to put off the consideration of the petitions because
of the third case, coming out of the Sixth Circuit, which really is sort of a clearer case of, and it’s involving a transgender employee in a funeral home, where
the funeral home director, who is engaged in the gradual process of transitioning to be a woman, and wanted to present herself as a woman in the workplace, and in
her other social settings, as a prelude to, to getting sex, sex change surgery for at least a year, which is typically, either recommended or
required by physicians, and so wanted to present as
a woman in this funeral home. The employee was otherwise
a wonderful employee for many years, and
the employer fires her, with the implication that
she could have kept her job if she would continue to present as a man. And the theory behind it
is, we’re a funeral home, right, we’re not, you’re supposed to be unobtrusive, I’m not firing you because I have anything
against transgender people, although he does have a
religious objection to that, as well, but more for the purposes of not getting the customers riled up. These are people in a time of grief, they shouldn’t be thinking about things, about whether you’re a
transgender employee or not, maybe they have moral objections, maybe they’re just made uneasy by it, we’d like you not to, not
to basically roil the waters in your job here, you’re
supposed to, you know, not draw attention to yourself, and if you present as a woman, you will. And so it really a case, at
least in theory, in which the funeral home would probably
treat transgender persons of both sexes the same way, it really is an equal opportunity case. And it might, in that
sense, be either an easier, or at least a more, you
know, more concrete case, context in which the court could deal with the equal opportunity discrimination, is that discrimination, the equal opportunity
sex stereotyping case. The interesting thing about that case is that the EEOC is the respond,
is one of the respondents. The ACLU is representing the employee, but the EEOC actually brought the case against the funeral home at a time when the Obama administration, EEOC, thought that this had concluded, this was indeed discrimination
on the basis of sex. The SG has asked for the first extension, and here’s the catch, the EEOC does not have independent litigating
authority in the Supreme Court, the SG controls the EEOC’s representation in the Supreme Court. The EEOC right now only has
three of its five commissioners in place, and two of those are Democrats, including former Georgetown professor, Chai Feldblum, and so this is a case in which the Trump administration’s view, on the scope of title seven,
which appears to be different from the Obama
administration’s view, might be in tension with the way
the current agencies view. And the currently agency
might be unwilling to file a brief in the Supreme Court, saying our view is that
this is not covered when it’s, when the view of two of the three commissioners
is that it is covered. Now, what happens in
that case, when the SG and the agency are at odds
about a legal question? Well, traditionally, one thing that has happened occasionally in cases like Buckley versus Valeo, and some affirmative action cases is, the SG will allow the agency
to file a second brief, there’ll be dueling
federal government briefs. I have a feeling this
administration is not going to go that route, not only because it’s in favor of a unitary executive,
and doesn’t really want to be presenting two conflicting briefs to the Supreme Court,
but because it figures that when it gets a majority on the EEOC, the EEOC will agree with
the Solicitor General on the statutory question
here, so what’s the holdup? The holdup is that there’s three, I’m sorry, there’s three spot, there’s two spots open,
but three nominations, including Commissioner
Feldblum getting another term, ’cause the, Congress
provided that there have to be a certain number of
Republicans and a certain number of Democrats, always three and two. And so the Trump administration
has sent up a package of three nominations, two
Republicans and Chai Feldblum, to go through quick
confirmation in the Senate, something you can do if
you package them together, but under Senate rules, you can’t do when there’s individual nominations. Mike Lee, son of
Solicitor General Rex Lee, is apparently objecting,
and putting a hold on this package deal
because he doesn’t believe the Trump administration
should allow a Democrat such as Chai Feldblum to be on
the EEOC, and therefore, there’s a struggle within
the Republican caucus of the Senate about when and whether to take these three nominations up. I think the fact of this
petition might actually light a fire under the Senate to get
these nominations confirmed, at which point, presumably,
the majority of the EEOC and the SG would be on the same page, and would be arguing, I guess, for a, for a reversal, for a summer reversal. But now that the employee is
also a respondent in the case, it’s the sort of thing
the court could take. So I expect that it
might take several months for the Senate to confirm
these EEOC commissioners, and if it does, it might
be not until after January when the court grants all three petitions, or some combination of
them, in which case, these issues would be resolved next term, rather than this term. – All right, anybody
else on sex orientation and title seven, Pam? Any questions from the press? Yeah? – [Man] What was the
name of the (mumbles)? – It’s Harris Funeral Home,
out of the Sixth Circuit– – Versus EEOC.
– Versus the EEOC. Zarda and Bostock are the
two sexual orientation cases, out of the second and 11th, respectively. – So I have one more case to summarize, if we’re getting near the end here, and then I’ll just bring
up a couple of other cases, in case anybody wants to
comment, just by name. So this is Maryland National
Park and Planning Commission versus the American Humanist Association. In 1925, the American
Legion built a memorial in Bladensburg, Maryland,
to honor 49 soldiers from Prince George’s County
who die in World War I. The memorial is in the shape of a cross, Maryland acquired the monument in ’61, and funds and maintains it today. The Fourth Circuit held
that the maintenance of the cross violated
the Establishment Clause because even though Maryland
obtained the monument to honor fallen soldiers,
its principal effect was to endorse Christianity. The Latin cross, the court said, serves not simply as a
generic symbol of death, but rather a Christian symbol
of the death of Jesus Christ. Now, Maryland has
petitioned for certiorari, asserting this is an easy case in which the purpose
and effect is primarily to honor veterans, not
to endorse Christianity, and I’m pretty sure the court
will see it that way, too. The interesting question is whether the court will
take this opportunity to refine its Establishment
Clause doctrine as applied to religious symbols,
I doubt that a majority of the court is happy with the doctrine, but it’s unclear whether
they will see this as the case to do anything about it. Anybody else on the panel
who wants to comment on? – I would just add then, in
addition to the questions Irv raised about whether
there’s five justices who would coalesce around new
Establishment Clause doctrine when it comes to the symbols cases, memorial and symbols cases. Some of the amici in the,
at the cert stage have said to the court, oh, by the
way, you also have to decide in the first instance whether
the objecting observers, which are present in all these cases, have article three standings to, article three standing to sue. Which the court has always
assumed, in a whole series of cases, that it’s
decided over the course of the last 40 years, it’s
decided a lot of these cases on the merits, on the basis
of objecting observers, someone who goes by the
crash, or the memorial, or the 10 commandments all
the time, and is offended by the alleged Establishment
Clause violation. And so presumably the
court will have to address, if it takes the case,
which we expect it will, probably will address the
article three question, it being a jurisdictional question, and a holding that there’s
no article three standing, would actually have a much
greater practical impact than any merits decision in the case, although it would get fewer
headlines from you folks, unless you decide to
explain to your readers that that’s actually a much bigger deal because it would mean this whole series of cases would stay out of courts, and would be resolved
by political branches where the objectors would
obviously always lose. – That was gonna be my
question for you, Marty, is if the objecting observers
don’t have standing, who does? – Not clear that anyone
would, and, I mean, you can imagine cases, weird
facts, factual settings in which there might be a plaintiff, but there will be a hell of a lot fewer of these cases if they hold
that there’s no standard. – Anyone else on this? – Let me just, Bob has a
question, but I’ll just, I’ll, you know, I will just say, and this, I think, echoes what Irv
was saying, is, you know, I think this is a case where
the challengers would have been in trouble if Justice
Kennedy stayed on the court, and I think there, you know,
the interesting question is how much deeper trouble
they’re in, you know, with his replacement on the court. And I will just try to
contextualize this by saying, you know, there are a lot
of cross displays out there across the country, and,
you know, this is one of the tougher ones to challenge,
just given its history. I mean, there’s a story to be told about, you know, the religious
motivations of the people that put the sort of drive together to put this memorial together. But, you know, this
clearly was a war memorial, and there are other
crosses that are out there that are not war memorials,
have different purposes for their erection, and I
just think, you know, I, that, you know, from the challengers’
perspective, you know, I get that this is a very
ideological objection, so maybe they’re not picking
their battles tactically. But this was a tough one to, a tough battle to fight
because of the history– – Paul’s right that there
are other crosses out there, some of which are memorials, most of them are reflecting
the particular religion of, for instance, at Arlington,
of the person who’s, the cross is there for. And so when it’s a Jewish veteran, there’s a star, and when it’s
Muslim, there’s a crescent or. (overlapping chatter) Paul does point to two
in Arlington Cemetery in his very fine amicus brief that are more standalone memorials, and one interesting question,
Paul might know the answer to this, but I didn’t
see it in the record, is whether the 49 Prince
George’s County veterans who were killed in World
War I were all Christian in this case, in which
case you could almost think that this is just reflective of their, their common religion,
or whether they were in an array of religions. I’m not sure the record
says anything one way or the other about that. – Yeah, and I was really
making a different point, though, Marty, which is, you know, there are, also are a number
of crosses not highlighted in my amicus brief that
are just, you know, have nothing to do with war
memorials and stuff like that, and those are the ones, I think, are– – Harder. – Are, you know, are–
(overlapping chatter) – Religiously erected.
– Yeah, exactly. – One might say, and, yeah.
(overlapping chatter) – [Man] Well, that’s what
I was gonna ask about, well, one, Marty, stay
tuned and watch (mumbles) answer your questions
about the people who are– – Oh, that’s, you did some
genealogical research, okay. – [Man] But there is this
Eleventh Circuit case where the Eleventh Circuit now says, you’ve gotta take down
this cross in Pensacola, (mumbles) the idea the Supreme
Court needs to do something about it, but we are
bound by, you know, our. So do they wait to do it all at one time, or is it easier to take
this Maryland case, and then hold off on the
ones that would be harder to, I actually used to go to
Easter sunrise service at that, that cross, and
that’s the whole point, so. – And I think, though
I haven’t studied it, but I think that was
why it was constructed. I think it was constructed so
they could do Easter services in the park, that’s a tougher case. (audience laughs) – I, we should mention that
the plaintiffs here are saying, we don’t care what the remedy is, and there’s at least three options, right? One is, you take it down,
the other, you destroy it, and the third, and the thing
that’s sort of interesting about this case is, get rid of the arms, the horizontal part of the
cross, so that it’s more of an obelisk, or phallic
symbol, or what have you. And if you really think this is secular, rather than religious, you won’t
have any problem with that, right, it won’t be, because
most of the objections to getting rid of the arms are, that would be denigrating religion. Well, you just said it wasn’t
predominantly religious, so what’s the problem
with changing the cross into an obelisk, unless you, unless this is really
predominantly religious. – So I, to answer your question,
I think they’ll grant this, and hold the other one,
and if it comes, but. Other outcomes are possible. – So I just want to final,
mention just the cases that are bubbling up, and then
if anybody has any questions on them, or anybody wants to say anything, we have, really, the blockbusters are all on the lower courts right now, so we have the DACA case,
we have the ACA case, or Obamacare case, the
emoluments clause case, the challenge to Mueller’s appointment, sanctuary cities, the
citizenship question, the Catholic church and adoption, and political gerrymandering
in North Carolina. So I don’t think any of those
are, well, it’s possible one or more might make it,
but I’m not sure any will, but anybody who has any comments on– – That’s to get you to
come next year. (laughs) – [Man] Well, do you think that the, (mumbles) will be back (mumbles). – Anybody? – My personal view is, I
don’t think there’s much of a stomach on the court for, for resolving the compelled
speech question in those cases. I agree with Irv that the
one that they have the two or three justices denying,
dissenting from denial of a stay a few weeks ago,
about Philadelphia’s contracts with the Catholic charities on
adoption, or on placement of foster kids, I guess, is
more likely to be a vehicle, when that trial is over, and
when that’s said and done. I don’t think, I think that
oral argument and the opinions in Masterpiece sufficiently
scared them away from the compelled speech
questions in that, in. – Anybody else on that,
any other questions about any of the other
cases, or any comments on the other cases I brought up? – I guess I just have one brief comment. I’d be shocked if we got
through the whole term without the DACA case getting
to the Supreme Course. I should say, you know, I’ve been working on the California case,
there’s a Ninth Circuit case that’s teed up, and arguments happened, we’re waiting for a decision. As you probably know, there’s
the Fifth Circuit case, which was the affirmative,
states trying to bring it, to say that there can’t be any DACA. There’s a case that just
got to the DC circuit, and then there’s a Second Circuit case, and so, you know, the Ninth Circuit case, the government has tried to
take to the Supreme Court twice, they didn’t like something that
the district court was doing on the administrative record,
and they filed a petition for mandamus, which was surprising. The Supreme Court said no
to that, which was great, but then, after we got a good ruling from the district court,
they filed a petition for cert before judgment, and were, like, don’t wait for the Ninth Circuit, don’t give ’em a chance,
just take the issue now. I thought there was a good chance that the Supreme Court
was gonna take it then, but fortunately for our
clients, they didn’t. But the Supreme Court
said to the Ninth Circuit, like, we’re not taking
it now, but decide it, you know, as quickly as
you can, essentially, and the Ninth Circuit’s had
that case pending since June, you know, I’d be surprised if
there weren’t a decision soon, and I’d be surprised if
the government didn’t seek to get it teed up for cert on
an expedited basis, especially since that’s what they’ve
already done once before. – Anybody else on any of the
cases, or any questions, yeah. – [Man] I have a question to John Adamson, it’s a good question, on what
basis does an originalist, or anyone else, argue that
the excessive fines caused by the (mumbles) court (mumbles), as in (mumbles) versus Indiana? – So I think there’s two
questions you have buried within there, and the first is, whether the excessive fines
clause applies to the states, and I think an originalist,
and Paul would know better than me, since he argued a related case, but the originalist
would use the privileges and immunities clause to say that, rather than the due process clause, to say that the excessive fine
clause applies to the states. As for your other question about whether, as an original matter, property involved in an offense was ever thought
to be an excessive fine, I once argued to the Supreme Court that the answer to that question was no, and lost, so (laughs) I think
it’s water under the bridge. – Yeah, no, and just on the, you know, on the incorporation, you know, question, you know, there’s some issues
that you think you’re sort of done with, you know, it’s
sort of thought that kind of, you know, that McDonald
against city of Chicago was the last incorporation case. But, you know, the incorporation
doctrine’s kicking around in the Gamble case because
that’s one of the arguments about what’s changed in the
law since the court first laid down the separate sovereigns doctrine, and, you know, you have that here. I do think Irv’s right, that, you know, I think the originalist’s kind of perspective on incorporation, at least to something like
the excessive fines clause, might be, you know,
right idea, wrong clause, or the 14th amendment, and,
you know, and I think then, you know, originalists had two
different reactions to that. Justice Thomas would then say,
so that’s what we should do, and, you know, even sort of, you know, Justice Scalia, and I think most of the other conservative
justices would say, yeah, well, fine, you know,
that’s probably the right answer as a perfectly original matter, but since we’ve been doing it
under the due process clause for, you know, lo this half century, let’s just sort of stick with that, and there’s no reason to revisit all that. But I, you know, I, I think
those are the two paths, one of which will appeal
to one or the other of some of the more conservative justices. – Yeah? – [Man] And I just wondered
what you think will happen with, what’s the timetable for the partisan gerrymandering (mumbles)? – Oh, you know, that’s,
that’s one where, you know, I’m involved in it, and I
think Irv may not be right in the sense that I think that one, you know, the timing of that could be such that it gets up there this term, and could be argued in April. I also think, and I
can’t resist saying it, is that, you know, I think the, you know, both Masterpiece
and partisan gerrymandering, the kind of punts from last
term, you know, they, too, suggest to me that the
liberal justices didn’t know that Justice Kennedy was going
to leave because, you know, I, they only had so much
control, but I would have thought that they would have had a
lot more incentive to push for a more definitive resolution
in those cases if they knew that that was their last
term with Justice Kennedy. So they suggest to me that
even late into the term, the more liberal justices didn’t know that Justice Kennedy was gonna take off, and I think in particular, you know, Justice Kagan’s opinion that says, oh, hey, the standing thing
is really easily fixed, so you can be back here very soon, you know, makes a lot more sense when you think you’re gonna be back here in front of Justice Kennedy. – On, did you have, did
you have a question? – [Man] That was basically my question, was how you saw that playing
out as the (mumbles). – I just had one quick thing on– – Wait, did we get a, with Paul– – Oh, I’m sorry, I thought he had– – No, no, I think that’s, you know, I think it will get
back up here this term, and, you know, we’ll, you know, it, obviously all eyes were on
Justice Kennedy in that case, and now all eyes are gonna be
elsewhere, and, you know, I, you know, we’ll obviously see
how that ends up turning out, but I think it’s gonna
be a different argument and a different dynamic. You know, one thing, I think the fact that that is, maybe
that one of these cases, that maybe has the best chance of getting up there this term,
points out, and it’s a point, you know, I’ve made here
before, but, you know, one of the things that is kind of distinct about gerrymandering, and
partisan gerrymandering in particular is this
fact that it comes up on the appellate docket, not
on the certiorari docket. So, you know, I don’t have much
doubt if this was coming up as a cert petition, that
the chief justice might want to sort of kick this can
down the road a little bit on the thought that, like, you know, we’ve provided a little bit of guidance with this standing holding,
and it really wasn’t with the idea that we’d
be back here next term on the merits, but I think
with the appellate docket, it just becomes very hard for, for these, for the court to avoid these cases. And then that makes it, I
think, that much more difficult for the court to come up with an administrable test because there’s lots of areas in the law where the court throws out
some relatively vague standard, and then it’s the lower court’s
problem for half a decade. And then the court can
just let ’em sort it out, and then when they come
up, and tee up a nice, clean issue for the Supreme
Court, they can jump back in. But if they come up with a
difficult to administer standard, they’re gonna be the ones administering it on a year after year basis, and, you know, I think the chief justice had one of the most revealing soliloquies, and he usually asks questions,
doesn’t give soliloquies, but he really did have
this fascinating soliloquy in Gill about the problem of these cases coming back
term after term, so no accident that it’s probably gonna be
back up there this next term. – Anything else?
(overlapping chatter) – Yeah. – All right, thanks, everyone. – [Man] Thank you. (overlapping chatter) – All right.
(overlapping chatter)

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