Harry Litman: Hi everyone, Harry here. Before our episode begins, I just wanted to let everyone know that we have posted Patreon one-on-one interviews in the last couple of days; one on the Trump indictments with Dan Alonzo, the former head assistant district attorney in the Manhattan DA's office, the office that brought the charges, and two, a discussion on the Cosby case with Njeri Mathis Rutledge, who wrote as did I, an op-ed on the case and we just wanted to compare and contrast our views. So you can check them out at patreon.com/talkingfeds. Also on Patreon, stay tuned for an upcoming special one-hour interview with Congressman Eric Swalwell on his new book about the impeachment and other tumultuous issues.Okay. Here's our episode, a deep dive on the Supreme court term just ended with a fantastic group of guests.
Welcome to Talking Feds, a round table that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. In a week providing at least two rounds of fireworks in the indictment of Trump organization chief financial officer Allen Weisselberg and the sudden release of Bill Cosby, the most important and consequential news might originate from the Supreme court of the United States, which Thursday announced its last few decisions and closed up shop for the summer. The court works according to a familiar school year rhythm, and every year around this time announces its final decisions for the term, which tend to be among the most contentious and most influential on the legal landscape for good or for ill, and the court stayed to form this year. It closed out his term yesterday with the release of two opinions, both six to three along familiar ideological lines, that put an exclamation point on a year in which the new conservative super majority repeatedly flexed its muscles and pushed the law to the right. With a series of ideologically charged cases on the docket for next year, first and foremost, an abortion case from Mississippi that presents the clean opportunity to overturn Roe V. Wade, the court seems poised to push the law sharply right, in areas of greatest importance to constitutional lawyers and the American people. Or does it? Because there is also an emerging counter narrative fixing on some of the courts more tempered results in cases where it might have gone further. This viewpoint argues that the court has overall moderated its views and become more of a mainstream center-right body. We'll be focusing on that broader debate in the next 50 minutes or so as we also canvas many of the most important decisions of the term. And to do that, I'm joined by three of the most prominent and knowledgeable commentators on the court in the country, and they are: Amy Howe, the co-founder of SCOTUS blog, but now primarily writes for her own blog, Howe on the Court. Amy, thank you very much for joining.
Amy Howe: Thanks for having me.
Harry: Melissa Murray, the Frederick I and Grace Stokes professor of law at NYU, and the faculty director of Birnbaum Women's Leadership network. Melissa is also a cohost of the Talking Feds: Women at the Table podcast, and She's a prolific TV commentator and writer of op-eds including her retrospective on the court with Leah Litman this week in the Washington post. Melissa, so glad to have you.
Melissa Murray: Thanks for having me, Harry.
Harry: And Steve Vladeck the Charles Allen Wright chair and federal courts at the University of Texas School of Law, he is also the Supreme court analyst for CNN and an author and editor of a long list of publications. Steve, as always, really great to have you, as we discuss the Supreme Court.
Steve Vladeck: Thanks Harry, great to be with you.
Harry: Okay, let's set it up this way. There were lots of observers, including some of us, who predicted, after Justice Barrett's confirmation was rammed through, about the likely impact for a generation of a conservative super majority on the court. As this, the first term of their firm upper hand unfolded, at least some commentators on the other hand suggested it was turning out to be not so extreme. Maybe the court was settling out in a sort of 3-3-3 configuration and an overall center-right posture. So keeping that broader overarching issue in mind, let's discuss a few cases that best capture to you or to each of us where the court is and where it's going. So I invite anyone to just start with a case important in itself, but also that you see as a particularly fine bellwether of the court in 2021 and moving forward.
Steve. I actually think there are, there are any number of decisions one could look to, that illuminate what I think is the clear new court. And I, I actually, I would put two side by side, which is the TransUnion stand in case from last week, which I think doesn't get nearly enough attention, which is about whether Congress can give victims of misconduct by credit reporting agencies a right to sue those agencies, if that misconduct doesn't cause them concrete economic harm, and the Supreme Court, by its new 6 to 3 majority said no. And then, much more visible, the decision from the last day of the term, the Arizona voting rights case, where the same court that is purportedly committed to textualism, decided to rewrite the Voting Rights Act to dramatically narrow the scope of section two, eight years almost to the day after it kneecapped the rest of the Voting Rights Act, promising that section two would still be available. So, I think the themes to me that come out of that are one, this is a court that is very comfortable in its skin, two, this is a court that has no trouble, asserting an awful lot of judicial power and three, this is a court that has no trouble asserting an awful lot of judicial power at the expense of Congress, where the branch that is supposed to be the democratically representative branch, the democratically elected members of Congress who pass statutes. What they do is in the TransUnion case, given much less weight in the standing analysis, and in the Arizona voting rights case, just sort of said you know, no, nevermind to the majority's analysis. So this is a, a majority that I think is very comfortable handing down, Harry, openly political decisions that are going to be perceived as victories for Republicans and losses for Democrats, and I think that's a big difference from where we were as recently as one year ago, and surely as recently as three years ago.
Harry: Okay. And I know I'm jumping in when both of you, Amy and Melissa, will have things to say, but I just want to underscore, first this Congress point is a great point that I think has been generally neglected. It's really, it's a court that's really ready to kind of slight the preferences and decisions of Congress. But I think some people might say the voting rights act, Alito might say, oh no, this is just us doing our best to interpret as it stood. I would agree with you, but I just want to go back to TransUnion because there, they're pretty expressly saying, we have said for years from the Lujan case that this kind of injury from Congress does suffice even without a concrete economic injury, and now we're just saying, nevermind. In other words, it was a self-conscious push to the right. Do I have that wrong, Steve?
Steve: No, I think it's a self-conscious push to the right. I think that's a push to the right that many folks feared the court was going to take in a case in 2016 called Spokeo that when Justice Scalia died, appeared to deprive the majority then of the opportunity to take that move to the right. And, for folks who are not, you know, sort of knee deep in standing doctrine, what's so important about this, Harry, is the court is basically saying that it's not enough for Congress to create a statutory right and confer that right upon a defined group of people, and then authorize that group of people to sue to enforce that right. The courts have to decide for themselves that the right Congress created somehow imposes a sufficiently concrete form of harm, which is of course in the eye of the beholder. And it's just, it is such a sort of arrogation of power, and it's such hubris compared to where we were, really, even in Lujan.
Harry: Yeah, and I thought, done with a kind of stunning casualness.
Amy: I'll jump in with a case that I think is more of what the commentators who talk about this being a court maybe that's not as extreme as everyone thought. And, and I don't agree with that. I would say that this is a court that moved to the right, perhaps not this term as far to the right, as many people thought it would, but certainly could move further to the right on the decisions like abortion and gun rights. They took up another case involving religious funding for religious schools in Maine today, but a case that sort of reflects the idea that this is at least for now, perhaps still the Roberts court, and that was the ruling in Bolton vs Philadelphia, the case of Catholic social services and the city's refusal to make foster care referrals to Catholic social services because of its religious beliefs about marriage. And that was a case in which Fulton and Catholic social services really swung for the fences trying to get it rolling, not only that the city's refusal to deal with it violated Catholic social services religious rights, first amendment rights, but also to try and get the court to overrule its 1990 decision in Employment Division vs Smith, which holds that government actions usually don't violate the constitution's free exercise clause as long as they're neutral and apply to everyone. And the court unanimously agreed that the rights of Catholic social services and the foster care parents had been violated here, but then it divided six to three on the question of whether or not to overrule employment division vs Smith. And Justice Alito wrote the 77 page dissent in which he basically laid out the case to overrule employment division vs Smith. And you know, we've seen Justice Alito do this before in the context of labor unions, to sort of lay the groundwork to overrule a decision, and then 5, 10 years later with the Janice decision, it was overruled.
Melissa: So I also wanted to highlight Fulton, although for slightly different reasons than Amy suggests. I think Fulton was one of those cases that gave rise to this narrative of a court that was marked by considerable restraint and moderation, even as it had the numbers to be more muscularly conservative and it declined to do so. I actually think if you read between the lines in Fulton, it actually is a quite conservative case that has moved free exercise jurisprudence further to the right than it was before. And I think that is especially evident if you view Fulton in tandem with what happened on the court's COVID docket, which was not part of its regular docket. And I think Steve has written really well about this in the past, but we saw on the COVID docket, the court really moving to elevate free exercise of religion to a kind of favored nation status. And we saw that again, translated into the court's regular docket in Fulton, and to be really clear about it Amy's exactly right. The court did not take the opportunity in Fulton to do what Catholic social services had requested, which was to overrule Employment Division vs. Smith, but just because they avoided that sort of seismic result didn't mean that they hadn't done something quite significant. What the court said there, and again, chief justice Roberts wrote that majority opinion was that if there is a policy that offers decision-maker some discretion for allowing for exemptions or something similar in the operation or administration of the scheme, even if that discretion is never actually exercised, then it is not a neutral law of general applicability and it can be viewed and should be viewed more rigorously, should be reviewed more rigorously, and can be seen as posing a threat to religious liberty. And in making that ruling, the court really opens the door to a wider range of religious liberty challenges, to a wider range of laws and policies, because almost every law and policy has that system of discretion or exemption built in. So it really is, I think, a quite striking ruling. It flew under the radar. So if anything, you know, maybe the thing to take away from this term is that this is a court that can really be stealth in its conservatism, but it is still conservative.
Harry:I wholeheartedly agree and just, uh, a couple points there. So first, it sends a strong message to administrators anywhere that if you don't want to get sued and you have any discretion at all, you better exercise it in favor of permitting religious claims. Second, unlike decisions of yore that it was compared with, for instance, most famously the Casey decision where surprisingly the center held, the conservatives did nothing to in any way constrain themselves going forward. They have every ability and time is on their side to overrule Smith. And then third, and finally, to me, it had the sort of flavor of an almost poignant rear guard action by the liberals. It reminded me of the Kresh case, the big monument case from a few years ago, where basically they were just trying to stave off the immediate more severe ruling. So they all jumped in, who knows who offered the original rationale at this idea that it was discriminatory anyway, so that Smith didn't have to be addressed. And it just highlighted the very, very few and ineffective tools that nevertheless the three remaining progressives have to try to deploy. Let me focus now a little bit on Roberts, because as you say, he wrote that opinion and you might have seen as part of this emerging counter narrative, maybe he still retains the ability to influence the court. Let's focus, not on the three who of course will jump at any opportunity, I think, to forestall catastrophe, and, but more on the three Trump nominees or the five hyper conservatives. What do you take to be their attitude to the chief justice now? Is he a sort of leader who can in a certain big case, try to call them all to some kind of, unanimity or speaking with one voice, even if it's moderate, or are they pretty much respectfully he's the Chief Justice, but respectfully indifferent to his role. Amy. Any thoughts about that?
Amy: I mean, it's hard to say for sure what's going on behind the scenes. I mean I do think that the final order list that we got on Friday, July 2nd, as they're all skipping town kind of gives a little bit of a sense, it was kind of the term in microcosm, as I wrote in my coverage for SCOTUS blog.
Harry: The indispensable SCOTUS blog, I should say, of any Supreme Court.
Amy: On the one hand, you know, they did take on another case in which it seems they're likely to sort of move the law again to the right. Last year in Espinoza vs. Montana Department of Revenue, they ruled that Montana could not have this program in which they wouldn't give money to parents for use at schools because the schools were simply religious schools. And now they've taken the other side of this coin and said that Maine can't have a program that prohibits funding for schools that provide religious instruction for religious use. So they took that case. They didn't take the Arlene's Flowers case, the Masterpiece Cake Shop question again, involving the florist who wouldn't do flowers for a same-sex wedding, but three justices said that they would have taken the case. And then you had a couple of justices saying that they would reconsider New York times vs. Sullivan and Sheila vs. City of New London. So, the court's more conservative justices are clearly ready to move the court even further to the right if the opportunity were available to them.
Harry: Well, and just tying it back to my Robert's question that has to be separate opinions that made his eyebrows go
Amy: Exactly and not only are they ready to do it they’re putting it out there on the record.
Harry: Right, exactly. And you're advertising this about where the court's prepared to go. So does that suggest, and Steve and Melissa, do you have any views as to the degree of deference really, or, you know, willingness to be led of the five? The counter narrative, Noah Feldman writes yesterday in support of what we've heard from others, is a 3-3-3 demarcation of the court with Kavanaugh and Barrett joining in a supposed moderate block. And it is true that the most tubthumping, conservative rulings, especially the last day in Arizona had Roberts there anyway, and yet there were others where it seemed to me, they were really not moved at all by his sort of stature as chief. Here's another way to put the question: Look, there are five very conservative folks. The three can't do anything about them. Can the sixth, who sometimes is more moderate and sometimes very focused on the institutional reaction to the court, exercise a fair bit of influence, not on the numbers, but just by virtue of his embodiment of the bigger kind of questions of social capital for the court?
Steve: Melissa mentioned the shadow docket, and it didn't work on the shadow docket. Like we have, you know, we have three, 5-4 decisions that we know of on the shadow docket, this term where the chief joined the three democratic appointees in dissent and lost. And two of those produced pretty important opinions for the court. One in November in Roman Catholic Diocese, and one in April in Tannin, which Melissa already mentioned. So, you know, I think the reality is that the chief still has as much influence as Justice Kavanaugh and Justice Barrett are willing to let him have. But the reality is that it's Kavanaugh and Barrett, who are the power brokers now on this court. That's both I think a meta point for the big cases at the end of the term, but I think it's also, me sort of beating my dead horse about how you can't fully understand the current court without including the shadow docket, because that's, I think where you really see not a 3-3-3 court, but in some cases, a 5-4 court.
Harry: Yeah, and it's not a dead horse by the way, Steve, it's a really important point. And so what about this, Kavanaugh, 97% of the time in the majority, and all, all three of the Trump appointees in the, I think in the nineties, well, you know, and Roberts at about 90 also, so it does seem to be right that maybe he can broker coalitions in second level cases, but the really big marquee items, they all, all five of them seem ready to part company. Or am I being too presumptuous about that?
Melissa: Well, I wonder if you're not making more of what it means to have a majority than is actually there. I mean, there are a number of cases where there is a quite substantial and healthy majority, cases where they are unanimous or an eight to one case. But when you actually look at the ground, the substantive grounds for that consensus, it's quite narrow, and in some cases, almost ineffectual. I'm thinking specifically of Mahanoy vs. BL. That was the salty cheerleader case where the cheerleader had been disciplined for vulgar speech. Justice Breyer is the one who writes that opinion and he rejects the third circuit's categorical rule that any off-campus speech is not [regulatable] by school officials. But even as he gets the rest of the court to join him, you don't really know what's being done, like, what is the grounds for this decision? What guidance do we have going forward to make these determinations about what kind of student speech is actually regulable by school officials? So, they agree that she's not subject to school oversight because of what she said, and she was improperly disciplined, but we don't actually get a lot of guidance or substance from this majority about what kind of speech that is made off campus, uh, should be subject to discipline. We don't even really get a sense of what do the parameters of on-campus versus off-campus mean in a world where students may actually be doing school over a computer or social media, that happens off campus actually has a huge impact on what happens in the schoolhouse or at the schoolhouse gate. So, I think when we talk about these majorities, we really are overstating it because we're not looking at the basis for which they're actually converging in terms of their consensus. And I think it is a quite fragile consensus in a lot of these cases. And the grounds for consensus are incredibly narrow.
Harry: That's a fair point. And especially on the school speech case, you could see that was going to be a mucky case that was going to be very difficult to apply for future judges as I think it will be. But I want to not really take issue, Melissa, but just make a related point, which is, look, it is the Supreme Court and much of what they do is resolve circuit splits, or at least frame issues for themselves in ways that are pretty straightforward. And that means that even the biggest antagonists agree with each other half the time. That holds basically over history and through today with say Sotomayor and Alito. And the reason I emphasize that is because one of the tenets of the moderate counter narrative is, oh, look at all these cases where they're either all together or we have these strange alliances and for my lights, I just think that's completely pedestrian, it will happen every term. It will happen in the bulk of cases that are regulatory or straightforward. And what really matters are the big ticket cases that that ignores.
Amy: Yeah. I mean, the justices, I don't know whether either of you caught justice Breyer at the National Constitution Center, they love to trot out that narrative, you know, two thirds of our cases are either unanimous or eight to one or seven to two. But you know, those are, as you say, with all due respect to our Arista lawyers and our bankruptcy lawyers, I mean, those are the cases that resolved the circuit spits, and they are certainly important cases to the people who are involved. But, when it comes to the cases, the hot button issues, those are the ones that they're divided on and where there's more likely to be division as we saw in the case, as you know, when it came down to the cases that were on the last day of the term, in the voting rights case and the donor disclosure cases, those are where you had the, ideological divisions.
Melissa: Well, I think the point I was trying to make, um, is slightly different. I think Fulton and Mahanoy are big ticket cases. Like the kinds of cases in which you might expect a more traditional ideological fracture and you don't see them. And because you don't see those traditional ideological fractures, there is, I think all of this, you know, myth-making, if you will, about this moderate court, that should have been more conservative than it was. And again, I want to resist that narrative and the way in which these 9-0, 8-1 decisions fuel it. Um, these were big ticket cases where they seem to have found some consensus, but they found consensus by agreeing to do very little in fact, and leaving open those issues to come around in the next go around where I think likely be a more traditional ideological split. So this is not the Arista case. This is not the bankruptcy case. These are big ticket cases where they found consensus, but consensus on very, very little.
Amy: I think that's a good point. Another one sort of along much the same lines as Fulton, the Masterpiece Cake Shop. You know, it was 7-2, you know, seven justices agreed that Jack Phillips should win because the Colorado administrative agency was hostile to his religious beliefs. So he won, it was a narrow win. And when all of us wrote headlines describing this as a narrow win, because we wanted people to sort of understand exactly what was involved. People went bananas, you know, at the press for describing it as a narrow win, because that somehow meant that we were biased and we were taking away from Jack Phillips. But you know, it was a win for Jack Phillips, but it was a narrow win and it led to Fulton and they still haven't really resolved that issue at the heart of the case.
Steve: There's a lot going on here and I think one of the points is how you look at this term really depends on what you were starting from, right? If you're starting from the proposition of just how, if you're a conservative, good could it be it and if you're a liberal, how bad could it be, if that's your starting point, then yeah, you know, the term was not all the way to the extreme, whether a good, extreme or bad extreme. But if the starting point is where were we three years ago when Anthony Kennedy retired, it's hard to imagine rulings like Fulton, Kennedy was the last member of the court who was on the court when Smith was decided. Hard to imagine Fulton being unanimous with Kennedy on the court, hard to imagine the Arizona voting rights case coming out the way it did with Kennedy and Ginsburg on the court. And so part of what's going on here is the folks who are savvy Supreme court observers, are sort of right on both counts. The question is what are you comparing them this term to? And for me, you know, I sort of think about just the arc of the court over time. And from that perspective, you know, this was as conservative a term as we've seen in quite a while, even if there are ways in which all of us can identify ways that it could have been even moreso.
Harry: Let me ask you this then: I mean, there seems a pretty strong consensus that it's not simply very strong conservative instincts, but as you put it Steve, comfortable in its own skin, so it's really ready to um, make changes in the, um, in the law that affect huge swaths of society. What kinds of conservative are we talking about? That is what is really their sort of guideposts, would you say? Is it the sort of legal agenda of the Federalist society and other peers they spent many years with? Is it success for the Republican party? Is there a more idiosyncratic kind of list of things they'd like to change? How would you characterize exactly the sort of north star of their conservativeness, as you see it?
Steve: Isn't the answer, now we can have it all? Cause I think, you know, I had thought, especially when Justice Gorsuch was appointed, that we might see the rise of a bit of a libertarian conservative fracture among the conservative justices. And I look at this term, maybe it's just the cases that featured prominently this term. But I look at this term and I don't, I don't see that split. Like I see, I see a court that is able to pick and choose cases where, more often than not, those are not intentioned. And where, what we might think of as the sort of old school Washington Republican political establishment, the John Roberts universe, right? Is actually not that out of touch or out of sync with the, you know, more sort of religiously oriented or, modern, more sort of far to the right conservative movement. I guess for me, Harry, the tell and I'm, I'd love to hear Amy and Melissa's thoughts on this. The tell is, in more and more of the concurring opinions that the conservative justices are writing, we're seeing references to pretty right wing media. There was Justice Thomas this morning cited the pizza gate conspiracy, the election fraud, right, figured prominently in Justice Alito's opinion in the voting rights case. I think it would be healthier if it were a 3-3-3 court, where the sort of old school conservatives and the libertarians were actually fighting with each other, but I just don't think that they are, or that they have to.
Melissa: I think the other tell is that, there's a real sort of inconsistency as to the principles, to which they're willing to sort of go to the mat for. So, you know, for example, in Britvic the voting rights case, Justice Alito, as Steve just said, really makes a lot of this idea of election fraud and specifically, the notion that states should be empowered to prevent election fraud within their jurisdictions, and the voting rights act has to yield in some way to that, or at least to consider it in determining whether challenges will be successful. If you fast forward though, to a case decided on the same day, Americans for Prosperity v. Bonta, which is a challenge to a California law that required disclosures of donors to specific charities, the whole reasoning behind that law is about fraud prevention, allowing the state to be able to regulate fraud in the philanthropic arena, and the Chief Justice seems to have no concern about the state's interest in protecting against fraud in that context. Whereas it's a huge part of the calculus in Britvic. And so, you know, that to me is kind of the tell, and really goes to Steve's earlier point, like maybe we can have it all and we don't actually have to be consistent about the principles on which we get it.
Harry: Alright. Let me ask you Amy, because among your work at SCOTUSblog and elsewhere is really valuable in charting trends.I had raised this point of Kavanaugh's leading the pack in being in the majority, maybe people can make too much of that term in term out, cause it's not a very big sampling size, but did it surprise you that he and the other Trump appointees would be basically be, the, in the majority most of the time, and what does it tell you? And then if there are other sort of interesting trends that you're now just beginning to aggregate, as you sift through the completed term, I thought you might want to mention them.
Amy: I have not yet had a chance to really digest those. It doesn't surprise me at all that he is sort of the justice at the center of the court who's most often in the majority, because I think he was last term as well. Iit wouldn't surprise me at all that he would retain that position again this year.
Harry: Do you think it's a natural development or one, perhaps given the baptism of fire that he endured before getting on the court that he consciously strives to do?
Amy: I think it is actually fairly natural, y'know it's kind of where we expected him to be. We expected him to be more conservative than Justice Kennedy. And so was he going to be more conservative than the chief? Probably you know, and it, it turns out that he's kind of right in the middle.
Steve: I agree with Amy on this, the Kavanaugh confirmation for obvious reasons became about something very different, than when it started being about. But I had thought that the most challenging thing for folks to understand before anyone knew who Christine Blasey Ford was, was where Kavanaugh would and where he wouldn't represent a significant rightward movement from Kennedy. And I think part of what's happened, Harry, to me in the last term and a half anyway, is that more of the cases where that distinction matters are getting onto the court's docket. So more cases where Kennedy might have actually sided with the lefties or at least where he would have exerted more of a moderating influence on the other conservatives. And I think that, you know, say what you will about the Chief Justice, no one on the right is trying that hard to keep him onside anymore. And so, as opposed to, I think a time when Alito and Thomas and maybe even, in his first term, Gorsuch might have held their fire a bit for fear of pushing Kennedy away from them, you know, I think now everyone's feeling quite comfortable saying whatever they want. And in that universe, Kavanaugh is going to be the median more often than I think any of the other eight justices. What I think is, is more interesting numerically, and I suspect that when SCOTUSblog finishes their great statistics, we'll see more of this is how much more often justice Barrett voted with Justice Kavanaugh than with Thomas or Gorsuch. Like I think that or Alito, I don't think the 3, 3, 3 thing is, is right. I do think though that the sort of Barrett/Kavanaugh median, is a theme that we're going to come back to a lot in the next couple of years.
Amy: And I think just to sort of follow up on what Steve said, you know, the reference to Justice Kennedy, with Justice Kennedy, there was this sense that he was at the center of the court, that you had both sides wanting his vote. And now that's Justice Kavanaugh, and we saw again, just, a couple of days ago a case again, off of the shadow docket, in which his vote made the difference. You know, you had the case of the federal moratorium on evictions and he provided the key vote. He said, you know, I think that this eviction ban isn't lawful, but on the other hand, it's going to expire in a couple of weeks, keeping it in place will allow for a more orderly transition. So he provided the fifth vote to keep it in place until July 31st.
Harry: This is a really good point. And I'll just add a personal observation, having clerked for Kennedy and basically with, more or less overlapped with Kavanaugh when he was clerking, and think it's illustrative of just a social change between what it means to be a sort of solid conservative in 1980 and in 2020. So both of them are, from the non-confrontational kind of good guy Republican school in a sense, but for Kavanaugh, that means having come up through a time where the sort of counter-revolution of the Federalist society was, important in a way to say it wasn't for Kennedy. So they both, I think, share sort of solid, conservative, even Republican instincts. And part of what's happened is that the meaning or instantiation of that has changed socially. All right. Let's take just a few minutes to focus on the beleaguered three, the voices that can make themselves heard only rarely, sometimes by virtue of really great analytic and rhetorical points, but so Kagan, Sotomayor, and Breyer, what kind of term did they have, were they willing to, scream out in cases, even at the cost of possibly alienating this more powerful block? What do we think about what they can do well, and not so well, or are they really, by and large beside the point?
Melissa: I think there's a degree of freedom that comes with being in such a beleaguered minority. I, like they're not currying favor, it's not as it was when there was a 5-4 conservative majority where, if they played their cards right, they could bring someone onside. Like this is a much more difficult task before them. And in a way that makes it obviously more difficult for them, but it also, I think, liberates them to say exactly what they want to say in places where they want to say it. And I think we've seen Justice Sotomayor speaking, not just to her colleagues, but maybe even beyond her colleagues to the world outside of 1 First Street. And you know what I've said on Twitter that, you know, this is a kind of demosprudence in the Lani Guinier Gerald Torres frame. And I think that's right. I think she recognizes that the three of them really are inconsequential to stop this conservative wave on the court, but maybe kicking this to the people is a way to galvanize some kind of support for maybe shifting to a more moderate pace. I don't know if that's likely, maybe it's about, you know, sort of ginning up excitement about court reform or structural reform, or simply just getting the people to understand that, you know, the court is really moving in a very aggressively conservative direction, but she seems to be speaking beyond her colleagues right now. I think Justice Kagan has for the last couple of years, had some really striking dissents where she too, seems to have put down the appeasement interests, um, that she's had in some cases like she's always been sort of lauded as the tactician of the group. And, you know, you see that in some of the decisions, but she's not afraid to be outspoken where it counts. And I think her dissent in the Britvic case should be joined with her descend in Russo and joined with Justice Sotomayor's dissent in Americans for Prosperity as three of the best and most democracy enhancing opinions to come out of this court in recent years, like they are full throated, robust statements about the importance of the vote, the importance of transparency in a healthy and functioning democracy. And they're calling out their colleagues, but they're also trying to galvanize the world outside of the court.
Steve: I think everything Melissa said is spot on. A good sort of less visible example of Justice Kagan, October term, 2020 versus Justice Kagan four or five terms ago, is her dissent in Edwards v. Vannoy. Another one of those straight 6-3 cases, which for a while, we only had a couple of, and then the last couple of weeks, we got a little flurry, where she is not just savage in attacking Justice Kavanaugh, but in a few places personal. And I really think that that's a noticeable– and listen, Justice Kagan does nothing by accident– I think that's a noticeable shift and I think it is for all the reasons Melissa identifies. The only thing I would say, if I can sort of throw one splash of cold water on this, which is, the one place where I'm surprised that they haven't been even more aggressive in their dissents, back to my, my dead horse that Harry thinks is still alive, is some of the dissents in the shadow docket cases. I thought we're, we're pulling punches. You know, Tandon is a good example of this. In Tandon, the court writes a four-page per curiam that dramatically reconfigures the free exercise clause, Justice Kagan writes about the most substantive two-page dissent I've ever seen in my life. But because it's only two pages, misses what I think was the biggest single problem with what the court did in Tandon, which was its lawlessness, given that it was making new law and in a context in which it's only supposed to be able to issue relief, if the right was already indisputably clear. So I think it's clear that they no longer view their conservative colleagues as their audience, at least in those cases with a partisan valence or an ideological or a strict ideological valence. But then the question is if they're not their audience, who is? I guess maybe Congress is Justice Kagan's audience in some of these contexts, maybe, you know, the American people are Justice Sotomayor's audience in some of these contexts, I'm not really sure who Justice Breyer’s audience is. And I think that's an interesting place for him to be at a moment where so many folks on his side of the ideological universe are baying for his, his, his retirement.
Amy: You just set up Harry's next question.
Harry: You did. So first of all, yeah, by the way, I, I'd like to have the book rights or something just for a, a small volume that has Kagan's June dissents, and that is one big difference, of course, with the shadow docket, you have to rush through them, whereas you get the impression somewhere around April, even dating back to when it was just her and Roberts on certain issues. She says, this is going to be the big one. And she writes, you know, the, the A+++ term paper of sorts and works and works on it. And they are, um, mini masterpieces. All right. Let's look ahead a little bit in the near term and the medium term. So the immediate term, I think the question on everyone's minds, starting yesterday afternoon was the potential retirement of Justice Breyer. The traditional time to announce is usually the afternoon, but not exclusively. I want to say that both Marshall and Kennedy did it in the week after. So what's your thinking about the prospects for a Breyer retirement and package that in, I guess with, we know that Biden has announced that his first nomination will be of an African-American woman. If there's someone or two or three candidates that have sort of distinguished themselves more in the Biden rankings, if there is a short list to be assembled.
Amy: At this point, even before this week, I did not think he was going to retire. At this point, I really don't think he's going to retire. I do think that, and this is not a highly original list, that judge Ketanji Brown Jackson and Justice Leondra Kruger are probably the front runners. If he goes in the next couple of years, I think he'll probably go next year to succeed him.
Harry: There’s a reason that wisdom is sometimes conventional.
Steve: Can I add Melissa to the shortlist?
Harry: I will add Melissa to the shortlist as well. Amy?
Amy: Fantastic.
Harry:Three votes for Melissa, whom I expect to be appointed to the court of appeal soon anyway, but let's leave that for another time. And she won't be able to come to Talking Feds anymore if that happens.But anyway, go ahead, Steve.
Melissa: I would not retire my mic anytime soon, don't worry.
Harry: Good for good for us, bad for the country, but good for us.
Melissa: I mean, again, I think the retire Breyer talk, I mean, is really counterproductive at this point. I mean, it's almost like having a child that you want to eat vegetables and you keep putting vegetables in front of them and he's like, I'm not eating these vegetables. He's going to do it in his own time. They're all well-meaning, and I think everyone who is sort of exhorting justice Breyer to retire is thinking about the longterm health of the court and the prospect of having a more balanced court, but he's going to do what he's going to do and he's going to do it on his own time, and I think the more we push the further out this goes.
Harry: I mean, I don't know if the more we push, I think he'll be indifferent either way, but of course, everyone is also very focused on the constitutional, social, national, tragedy of Ruth Bader Ginsburg at this point. I think we could say, but Steve, anyway, go ahead.
Steve: I'll just say, I think all of this is right. I do think that there's literally nothing that controls the timing of when justices either retire or announce their retirement. It's just Harry, as you said, tradition. And so, I don't think Breyer is going to feel bound by anything other than the fear of Democrats losing the Senate in the 2022 midterms. And so, does he announce after the end of the last argument session next April, that he's going to retire upon the confirmation of his successor? Sure. I think that that's very much in the cards. Does he wait for the end of the term? Maybe, although, of course, that compresses the timeline.
Harry: Compresses the timeline if you're looking at the election, you mean?
Steve: Right. I think he's going to keep his own counsel. And I think that the reality is that it's a symptom of the much larger disease that we're confronting with the court, that this is drowning out so many other conversations, because even if Leondra Kruger, Ketanji Brown Jackson, or, you know, in my dream world, Melissa, right, is in Breyer’s seat. In that dream world, it's still a 6-3 court. And, you know, there's still a lot of other stuff that we need to be talking about from the perspective of court reform, democracy reform, where, no one who replaces justice Breyer is going to be able to move the needle by themselves.
Harry: And let me mention, by the way, that topic, which we're not covering has been prominent this week, including from professor Vladeck's testimony before the Supreme court commission yesterday.
Melissa: I think the other reason why everyone seems to be so exorcised about the breyer retirement is not just sort of the, you know, the looming specter of justice Ginsburg's failure to retire in time to be replaced by president Obama. But the fact that Joe Biden has explicitly announced that he is going to place a Black woman on the court. And I think at a time when African-American women and people of color more generally are underrepresented in the federal courts, there is a real appetite for that. And so I think this is sort of the perfect storm of a lot of different things happening, the interest in the court as an organism itself. The concern about an untimely retirement and then this interest in better representation.
Harry: Yeah. I mean, I just think it kind of goes with the territory now on, on both sides.
Steve: But I think it's incumbent upon us to push back on that, right? Which is, you know, you mentioned the Supreme Court commission having this first open meeting. And Amy also testified, it wasn't just me. And I would just say, I would really encourage folks to listen to the first panel, because there was this remarkable exchange, not just with Niko Bowie from Harvard, and some of the commissioners, but with Kim Scheppele, who is, you know, one of the great comparative, not just common law experts, but Supreme Court experts. And Kim made the sort of incredibly obvious and yet incredibly subtle point that what is unique about our system is that we have a combination of a very, very strong Supreme court and a very, very weak amendment process. In the sense that it's very, very hard to amend the constitution and that most other democracies don't have both of those things, that most other constitutional democracies have strong courts, but also easier amendment processes or weak courts, right? And that what that means is it really entrenches constitutional rulings by our Supreme court in a way that is almost unique among other democratic countries. And that kind of reform, like having a conversation about what we do about that goes so far beyond the confirmation process. This is why I think the Supreme Court commission is both a really good thing, but also not the thing people think it is. Because it's, it's, it's a good thing in that it's required us to take a really hard look at how we got to a point where the Supreme court is playing this role in our system, but it's sort of not going to come up with like, you know, cheap 99 cent solutions. And that's, that's the part that I think is, is, is tricky is that this is an important conversation where these are all just little flashpoints.
Harry: Yeah, it's a great point. And Kim has also sort of drawn it to the potential influence or power of a strong man, as in Hungary or Russia or what or what Trump wanted to be, but wasn't to just sort of change essentially constitutional law overnight. All right. We're running out of time, but let's just take a couple minutes to look ahead, medium, a few months ahead to the next term. And I'll just ask, starting with, Amy who's always has such a panoramic view, if there are particular cases in addition, obviously to the abortion case from Mississippi, that you're looking at.
Amy: Yes. So there are two, there's the school funding case that I mentioned earlier out of Maine. It's the followup to last term’s, case out of Montana. And then the other big one is the New York second amendment case. Many of your listeners probably remember that the Supreme court heard a second amendment case out of New York in, I want to say now December of 2019, and ultimately dismissed that case as moot because New York City had changed that rule. There was a separate opinion from Justice Brett Kavanaugh in that case, in which he suggested that the court really ought to think about taking up one of the many other second amendment cert petitions that were hanging around, waiting for the court to decide aside that case. And the court promptly put a bunch of those back up for its conference and relisted them many, many times, and then denied all of them. And the conventional wisdom at the time, remember this was 2020, was that there were a couple of justices who wanted to vote to grant review, but that they weren't sure that there were five votes, you know, in favor of a broader second amendment ruling. They weren't sure about the chief justice. Now we have justice Amy Coney Barrett. And so I think the conventional wisdom is that they think that they don't need the chief justice anymore to return to your earlier point. And so this is a challenge to New York's concealed carry license scheme in which you have to show good cause for wanting a license to carry a gun outside of your home. So that was a case that likely will be argued. I think in November of this year.
Harry: All right, so we can add to, 'they can have it all,' from Vladeck, more of the same, itt looks like, from Howe going forward. All right. And of course everyone will be watching the Mississippi case that has not, has that been set for argument yet? Amy?
Amy: They have not set any of the fall arguments yet, they'll probably release the October calendar in a couple of weeks. So we should know relatively soon, but it'll certainly be sometime this fall.
Harry: All right. So first of all, thanks. This has been really great. I had hoped to kind of meld the review that you'd get in other places of specific cases with broader thematic, um, analysis. And I think you three have done just that. So, many thanks. A quick, uh, 30 seconds or so four or five words or fewer.]I'm calling an audible here because I want to tie, what you were just talking about, Steve with EJ Dionne in the Washington Post today says, in response to the Arizona case and the hamstringing of section two after section five was eviscerated, EJ Dionne ends his article saying court enlargement must now be on the agenda of anyone who cares about protecting voting rights in our increasingly fragile system of self rule. So the five words or fewer question is will there be a serious legislative effort to enlarge the court?
Steve: I'll do that in one, no.
Harry: Melissa?
Melissa: Uh, never ever, ever, ever. No.
Harry: Okay. Amy.
Amy: No.
Steve: Another way of doing those five words is, any reform needs filibuster death.
Harry: Okay guys, are we going to permit that friendly amendment?
Melissa: No no, it's filibuster death before any reform.
Steve: There you go.
Harry: Wow. Very nice.
Steve: this is why I defer to Melissa on all things.
Harry: And why the round table format works so beautifully. Thank you very much to Amy, Steve and Melissa. And thank you very much listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other Feds related content.You can check us out on the web talkingfeds.com, where we have full episode transcripts, and you can look to see our latest offerings on Patreon. Where we post discussions about special topics exclusively for supporters. Look to that space next week for a special hour long one-on-one with Congressman Eric Swalwell. Submit your questions to questions@talkingfeds.com, whether it's for five words or fewer or general questions about the inner workings of the legal system for our sidebar segments. Thanks for tuning in, and don't worry. As long as you need answers, the feds will keep talking. Talking Feds is produced by Jennifer Bassett, Rebecca Lowe Patton and Matt McCardell. Our editor is Justin Wright, David Lieberman and Rosie Dunn Griffin are our contributing writers, production assistance by Abby Meyer. Our consulting producer is Andrea Carla Michaels. Our gratitude as always to the amazing Phillip Glass who graciously lets us use his music. Talking Feds is a production of LLC.I'm Harry Litman. See you next time.
