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Harry Litman [00:01:08]: Welcome to Talking Feds. A roundtable 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. Happy birthday to the Declaration of Independence in the United States of America. In any other year, by July 4th, the justices of the United States Supreme Court would have finished their work and hopped a plane out of D.C. to various summer relaxation spots. But like so much else, the normal pattern is altered in the year of Corona. The virus resulted in the courts having a late set of arguments in May and preempted whatever summer retreats the nine might have been planning. The court's term is still not finished. In particular, the trio of cases involving President Trump's efforts to keep Congress and the New York district attorney from seeing his financial records will be decided next week.
Harry Litman [00:02:02]: But the court issued a flurry of opinions and much awaited blockbuster cases in the last few days. All five to four, all with Chief Justice John Roberts in the majority, alternately with the four more conservative or the four more liberal members of the court. Those decisions revealed sharp fault lines in the Court on critical hot button issues such as abortion and religion. And the most important case might be the one that the press gave the least attention to. Outside the court, the virus raged on with depressing new momentum, including increases in numbers of cases in 40 of the 50 states. And a new scandal hit the Trump administration with reports that the President had been briefed about Russia's payments of bounties to Taliban linked militants to kill United States troops. But those developments took a back seat to the announcements from within the Court. And to analyze the Court's big week. I'm joined by a fairly amazing panel of court watchers and constitutional scholars.
Harry Litman [00:03:04]: They are first, Dahlia Lithwick. Dahlia is a senior editor at Slate, where she writes Supreme Court Dispatches and Jurisprudence and where she hosts their fantastic Supreme Court podcast, Amicus. In 2018, she won the Hillman Prize for Opinion and Analysis Journalism. The judges described her as the nation's best legal commentator for the last two decades. Dahlia, welcome to Talking Feds.
Dahlia Lithwick [00:03:33]: I'm so happy to be here. Thanks for having me, Harry.
Harry Litman [00:03:35]: Next, Ron Klain. Ron Klain is an adviser to the Biden campaign. He has spent over 30 years in the highest perches of government, including his chief of staff to two vice presidents, Joe Biden and Al Gore. Chief of staff to Attorney General Janet Reno. Chief counsel to the Senate Judiciary Committee and the Ebola czar under the Obama Biden administration. Ron, welcome back, as always, to Talking Feds.
Ron Klain [00:04:03]: Thanks for having me, Harry.
Harry Litman [00:04:04]: And finally, Laurence Tribe, the Carl M. Loeb University professor and professor of constitutional law emeritus at Harvard Law School, a status he took two days ago after 52 years on the faculty. He is the world's leading authority on the United States Constitution and has been called the single most influential person in constitutional law outside of the justices themselves. His hornbook American Constitutional Law, one of 14 books he has authored is the indispensable authority for Students of the Constitution. He's also argued 36 cases before the Supreme Court co-founded the American Constitution Society, taught a who's who of prominent U.S. lawyers, judges and political figures, and testified so often in Congress on important legal issues that Senator Ted Kennedy once referred to him as the hundred first Senator. Laurence Tribe, Welcome back to Talking Fads, and thanks especially for joining us on such a big week for you personally.
Laurence Tribe [00:05:06]: Thanks for having me, Harry. Pleasure to be here.
Harry Litman [00:05:08]: All right. So let's start with the court's opinion in the June Medical case, the abortion case. Now, that case concerned the constitutionality of a Louisiana law that required any doctor performing abortions to have admitting privileges at a hospital within 30 miles. And that requirement, the lower court found, would have resulted in only a single doctor at a single clinic being allowed to perform abortions in the entire state. It was also a carbon copy of a law from Texas that the Court had struck down in 2016. And the court struck this one down as well this week. The four liberals on similar grounds in the Texas case. And Chief Justice Roberts joining the judgment on the narrower ground that the previous decision controlled, even if it was wrong. All right. So from the standpoint of abortion rights, it strikes me as very much on the one hand, on the other kind of case and actually both Dahlia and Larry have written about it this week. So, Dahlia, you you wrote in Slate that the concurrence that Roberts authored that brought the fifth vote along, cloaked a major blow to the left in what appeared to be a small victory for it. What do you mean by that?
Dahlia Lithwick [00:06:26]: I think what I meant principally is that the case that the Court heard almost decided four years ago to the day Whole Women's Health. The Texas case had been written by Justice Stephen Breyer to really, I think, put teeth for the first time in a very, very amorphus test that had emerged in 1992 in the Casey case. So in Casey, you'll remember, the court reaffirmed the core holding of Roe v. Wade, but went from this strict trimester test to a test that in some ways I think only existed maybe in Sandra Day O'Connor's head or somewhere in Anthony Kennedy's head. That a state can go ahead and regulate abortion. And in fact, in Casey, they upheld a whole bunch of regulations, but they can't create what's called an undue burden. And that opened the floodgates for states to, in effect, regulate abortion out of existence if they wanted to. And we've seen the flood of regulations that have come in the wake of that, where the state says these are called trap laws, right? Targeted regulation of abortion providers. And these are the kinds of laws that say, oh, you know, we're not going to criminalize abortion, we're not going to punish women who get them are doctors who perform them. But you're gonna have to retrofit all your clinics in the state so that they look like ambulatory surgical centers. You're going to have to have these admitting privileges laws. And all of these things have the effect, of course, around the country of shuttering clinics. But the Court really had never helped us to understand what an undue burden was. Whole women's health in 2016, Justice Stephen Breyer for the first time said, okay, here's the deal. These two laws in Texas, one that you've just described Harry which is the admitting privileges requirement. The other, the ambulatory surgical centers requirement if they do not benefit women's health at all. Then we're going to put a heavy thumb on the scale and say, yes, we're going to still do the undue burden analysis. But if there's no benefit to maternal health, that's part of the equation. So he changed the test in such a way, I think, that he was hoping that courts could pierce truly pretextual abortion regulations that only existed to close clinics.
Harry Litman [00:08:44]: All right. So let me try to put this in concrete form in Texas. So, as you say, we had had this fairly amorphus undue burden test, otherwise phrased as a substantial obstacle. But that did give rise to a series of regulations that seemed really to be about restricting or diminishing the numbers of abortions and gave make Wade arguments about why they were all for the women's good. But so in World Women's Health, Breyer says, you know what, this idea of admitting privileges, it doesn't actually help women at all. So we're going to amplify the so-called substantial obstacle test by also asking, are they really doing anything to help women? And if they're not that's going to make it more likely to invalidate. Is that fair?
Dahlia Lithwick [00:09:34]: That's exactly right.
Harry Litman [00:09:35]: So back to your thesis in Slate. A major blow to the left. So what is the major blow to the left that the new opinion in the abortion case from this term, June Medical represents?
Dahlia Lithwick [00:09:49]: Well, I think the Chief Justice is very clear. He says right up front, I thought Whole Women's Health was wrongly decided then. I still think it was wrongly decided. He does a long, I think, very persuasive love story about the need for starry decisis that we have to give legal force to decisions that came before, regardless of the composition of the Court changing. And then he essentially says, OK, this is literally identical to the Texas law. So I cannot tolerate the just unremitting hutzpah of the 5th Circuit overturning Whole Women's Health without my blessing. So, no, but he doesn't say whole women's health was correctly decided. He says it wasn't. And he, as we have just been discussing, takes out the portion that I think Breyer had added to make a more robust test that's gone. He says we're gonna go back to the Casey rule about undue burden, and I'm gonna find that because there was an undue burden in the Texas regs, there's also one in Louisiana. I guess, to be blunt. How can you say you believe in stare decisis and then say I don't agree with whole woman's health? I believe in Casey. It's just a question about how he gets to pick can choose and how he gets to be the arbiter of what undue burden is in the next case.
Harry Litman [00:11:12]: Yeah, I mean, I think that's a theme for the week. And I'd like to get to Larry, somewhat countervailing thesis. But just to understand Roberts, and this is a real question, it's a little bit hard to understand. I wonder if Ron or anybody has a view on this. There are two parts to world women's health. There's the balancing test and the approach they use said Dahlia and that he basically does away with. I think Alito in dissent persuasively says that's not the law anymore. So what's left is the undue burden in the finding that there'd only be one abortion provider in all of the state and as to that, he is saying the case is wrongly decided. I'll go with it, but the case is wrongly decided. So is he not actually saying that having that kind of restriction wouldn't be if you were writing on a fresh slate, a substantial burden on a woman's right to abortion?
Laurence Tribe [00:12:04]: It seems to me that he is obviously saying that we've got five justices of whom the Chief Justice is one who don't basically believe that a woman has a right to determine her reproductive destiny. That's not news. It's important, however, to accept. Yes, for an answer on the occasion when we get the fifth vote, that will go the right way. When Dahlia says Breyer put teeth in the undue burden test by advocating a kind of balance of benefits against burdens. Let's not teeth its soft gums. I don't think you can really chew very well on that. And I said this in what I've written about it. Of course, Roberts leaves a scary amount of wiggle room to uphold restrictions on abortion. That's not news. What he does, however, is give us a little bit by saying that if there is a substantial obstacle to a woman's ability to terminate a pregnancy before viability, you can't balance that away by cutting benefits to either the woman or the fetus on the other side of the scale. That part is good news. Now, we're not likely to find cases in which Roberts votes with us in the future. That's true. But he has not made things worse. He's made them better. And if, and I think everything depends on this. If there is a big blue wave in November so that the court doesn't go further, right? But preserves its balance or tipped slightly to the left. We now have an opinion by a justice who doesn't believe in abortion rights that can be used as a precedent for abortion rights. I take that as good news. The glass is not two thirds empty. But one third full. And it seems to me that we ought to take the best of what we've got and build on it and pat the guy on the back rather than sock him in the nose when he does what we hope he would do and the best he could possibly do. He's not going to turn around and say, oh, I was wrong a couple of years ago and Whole Women's Health when I decided there was no hope of getting that. This is the best that could have emerged from this case. And it's better than nothing.
Ron Klain [00:14:16]: Well, I will never challenge Larry Tribe on the question of constitutional law. But I may dispute the question of what is news here. So it certainly shouldn't be a surprise to anyone that there are five justices on this court as currently constituted that would substantially rip up production, women's reproductive rights. But whether that's news or not to careful court watchers, I think it is news a little bit to the public at large and to the country as a whole. And I think what happened here was I think Chief Justice Roberts did his best to cloak that news as effectively as possible as he could in an election year. If you think back, Dahlia began this conversation by talking about Casey. And I remember Casey very well as not just a matter of constitutional law, but as a political decision that came down in the summer of an election year and electrified suburban voters and led Bill Clinton to win that election in no small part by moving voters who have been traditionally Republican and traditionally Republican states like Pennsylvania and New Jersey into the Democratic column around choice. And I think it's hard to look at Chief Justice Roberts opinion in this case as much other than an effort to try to obviate that this year. And so I think it's an effort to put a nice stare decisis facade on an acknowledgment that there are five members of this court who are intent on undoing protection for women's reproductive rights. And so I think it's kind of a news blockade in front of the real news here where I do a hundreds precent agree with Larry, is this just reinforces how much is at stake in this election, this fall, both in terms of the next president who will pick the next appointments to the Supreme Court and the next Senate that will decide whether or not those justices get confirmed.
Laurence Tribe [00:15:59]: I agree completely with Ron. That is if the chief justice had provided a fifth vote to overrule Whole women's health opposed the Louisiana law say that the Texas law now, for all practical purposes, is fine as well. That would have been a dramatic blow, but I think either thing he did makes it absolutely clear if we're at all good at explaining things to the public, that the reproductive freedom of women to determine their own destiny hangs by the narrowest of threads. That is, if he had said that even the Louisiana law is OK. A lot of people would have, I think, been grievously hurt and would have said it's now gone. Roe v. Wade is gone and the election may not really restore it. Now, people say, I think rightly, that Roe v. Wade can be preserved if we win this election and if we win this election, it can be preserved best by legislation that makes Roe v. Wade the law of the land with a president who signs that statute. That's the way to secure it, regardless of future appointments. Either way, the politics is going to be dominant.
Dahlia Lithwick [00:17:09]: I completely agree with both Larry and Ron, actually, that [00:17:13]John Roberts is the deftest, most savvy political operator on the Supreme Court without a doubt. And I think to his massive credit, he takes the institution of the court deeply seriously. He cares about the dignity and the integrity of the Court. And I think that is a lodestar for him. And I do credit him with that. And it's hard to see June Medical separate from the DACA rescission and Title seven, a whole bunch of cases where he has surprised us for exactly, I think, the reasons that Ron laid out. Which is, in an election year when you've got the financial records, cases and abortion and all the religious rights cases and little sisters, all of it, everything's on the docket. He was not going to have a barnstorming 5-4 conservative-liberals year. But I just want to make one point that I think is maybe subtle, but I think it's important. And that is, yes, John Roberts is masterful at taking the temperature down and making the Court appear to be steering a moderate course. But I think that in almost every case that I've just mentioned, he does that by either doing a small thing that sets up the big thing in future, right? We just saw that this week in Espinosa. He had done the same thing in Trinity Lutheran. He does this small move, then the big move. It looks like it's a nothing. Never in nothing. But the other thing, and I think this is important, is in all the line of cases they just talked about I think there's this through line that says, just don't lie to me, right? In DACA he said, don't lie to me. Do your work better. Don't give me a C plus paper. In Title Seven. You know, he just doesn't. And that was certainly in the Affordable Care Act cases. And certainly the case last year in the census case where he's mostly reprimanding the Trump administration for shoddy work. And so I want to be very careful that sometimes you can reverse engineer these rulings. You can certainly do it in DACA and do exactly what he's telling you to do and you will win next time. And that's how I class June Medical. I want to take the win. I understand. Don't look a gift horse in the mouth. I think he has very, very much said here's how to do it right next time. And that's not nothing.
Harry Litman [00:19:31]: Let me offer a related through line, another through line, which is what he's done in the majority opinion. I think this also applies to Selia a law which we're going to discuss is healed the fine and seemingly part and parcel of the breezy reasoning of the case: what is the sort of default assumption and what is the outlier in ways that have really big implications. If we see this as an outlier in the sense that, come on, you can't have a stronger precedential force than something that he says himself is word for word the same. But the default is Casey and not an inch more, then it really raises the question of what this portends going forward. What kind of provision will he or the Court see that they really would be ready to invalidate? Take a step back about what Louisiana did here. It's pretty damn cheeky. There's a law that's been struck down and they basically just do the same thing to serve it up. And we have similar statutes that fly in the face of previous rulings for the Court. And so a real overall effort among the states to really put these things to the test. And if what emerges from this case is a general rule that if you were an inch outside of Casey, well, then you don't the super duper precedent principle doesn't apply. Then it gets very hard to conceive of the kind of provision that, in fact, will make the courts stand up and say no that that really is a substantial obstacle.
Laurence Tribe [00:21:09]: You know, we have to remember that not all obstacles to abortion, we're going to take the form of pretend health regulations, these Trap laws. There are these laws that focus on whether the serious has a heartbeat, whether it's brain waves are detectable, whether the pregnancy is lasted 12 or 20 weeks. The fact that Roberts is treating viability versus non viability as a critical part of the precedent may mean that he will separate himself from Kavanaugh and Gorsuch and Thomas and Alito when it comes to all of those laws. And they are the ones that probably pose in the next decade or so the most serious pressure on women's reproductive rights.
Harry Litman [00:21:51]: And they really will be coming to the Court, those statutes.
Laurence Tribe [00:21:54]: For sure.
Harry Litman [00:21:54]: And part of what's happened from the Trump is there is an emboldening of state.
Laurence Tribe [00:21:58]: Right. But I think there's an important point to be made about Dahlia is quite correct point that Roberts is basically saying, give me a break. Don't lie to me. Don't pretend that your reasons are other than what they are. He's said that over and over again. He said it in the census case. He said it in the DACA case. Very important. But that has two sides. One side is to say, well, that simply tells the government, do a better job, tell the truth, don't screw around with the Court and maybe you'll succeed. But it also sends a much broader signal to the nation that lying is not the way the government is supposed to operate. That is one of the most fundamental problems with this administration, is the way it has made lying the ordinary course of business, an administration that lies as easily as it breathes, has got to be resisted. And it can be resisted by a change in the culture that basically reaffirms the importance of telling the truth as a fundamental norm. And I think when the Court contributes to that norm, it makes a contribution that transcends these particular areas of doctrine, whether DACA, or the census or abortion.
Harry Litman [00:23:04]: That'll be a very interesting theme for how it plays out in the tax cases. All right. Let's just take a minute to talk about the dissents. So Thomas couldn't be more unabashed about wanting to undo Roe and basically everything we might call substantive due process. But it does seem to me that Alito and arguably everyone but Thomas at least gives lip service to the notion of Casey as superduper precedent and are at least absent a further personnel change in the court are not looking to say the words, maybe do the functional equivalent, but not say the words Roe v. Wade or Casey is overruled. Am I overly sanguine, do you think, in that reading?
Laurence Tribe [00:23:48]: Well, could say. It's sanguine or you could say it's pessimistic. I mean, if the only one is willing to be truthful about it and to say we're going to gut women's rights is Thomas. And if all the others, including Roberts, are prepared to say we'll kill those rights through death by a thousand cuts, then to go to Ron's Point, the Court may not do us the favor of activating liberals as much as it would if it were to say outright Roe v. Wade is hereby overruled. Because whether it uses those words or not, it can hollow out the effect of precedent of women's reproductive autonomy. And the question really is whether it does it in a way that really generates the kind of backlash that would be generated if the Court were to be forthright about it.
Ron Klain [00:24:32]: Yeah, I mean, I guess my mind the questions Chief Justice Roberts really standing here for truth in these cases are just for certain kind of panache in these cases. So I don't know that I mean, I take the point that Larry's making, that Dahlia's making that he's saying, just don't lie to me, just don't lie to me, just don't lie to me. But there is a certain kind of slickness about what lies do and don't pass muster with the Chief Justice. And here, I'd say in June Medical. In some ways, it's a fundamentally dishonest decision in the sense that what Roberts is saying, look, don't embarrass me. Don't ask me to say that something's exactly the same if it's really different. But, you know, wink, wink, wink, wink, there's a whole lot of laws that myself and four other the justices here are prepared to uphold. And in some sense, as Larry alluded to, the only one of the five the conservative justices is being truly honest, I think is Justice Thomas. And I think the other four, we're going to see what happens when the rubber hits the road after this election, potentially with personnel changes before this election. Certainly with personnel changes after the election at the Supreme Court. We're just going to see how all this sorts out in the future.
Laurence Tribe [00:25:43]: You know, one point worth making, even though the laws were written in exactly the same way in Louisiana and Texas, Alito spends page after page explaining that the issue is not what the law says, but what the effect of the law is in terms of medical practice and the demand for abortion and the demographics of Louisiana and Texas. And he does a fairly reasonable job doesn't move any of us, I'm sure, but he simply puts on quite a performance about why this is not exactly the same as Texas. And why, if he wanted to, Roberts could easily have written an intellectually coherent opinion, saying it may look the same, but it's really different. And I think that I agree with you, Ron. He wants to kind of panache, but he's also making a choice not to go with somebody like Alito who is willing to count angels on the head of a pin until they fall off.
Dahlia Lithwick [00:26:37]: And this is a good place, I think, to point out that if the Alito dissent or the Cavenagh dissent had held the day and this must have been somewhere in the Chief Justice's thinking, then the Court would have been forced to act as some kind of super legislature reviewing every state. Well, Louisiana is different because it closes two of the three clinics as opposed to 10 out of the 20 in Texas. And the fifth doctor didn't really act in good faith when he tried to get admitting privileges. I mean, this is a complete discarding of the district court's finding of fact in this case. And Alito setting himself up to say, let me tell you what a good faith doctor seeking admitting privileges would have looked like. And it just leads me if we're talking to the dissenters inexorably to Brett Kavanaugh, who somebody said to me today, the only woman who appears anywhere in June Medical, is Susan Collins, who's somehow being channeled by Brett Cavanaugh, who refuses to write the sentence: I think that Roe v. Wade should be overturned because then Susan Collins would be a liar. But instead says, let's go ahead and see if all three of the clinics close in Louisiana and then we could find an undue burden. I mean, talk about slippery analysis and holding the Court out as an institution that is going to go state by state, looking at doctor by doctor and determining whether the district court made an error in their good faith. I mean, that can't be anyone's definition of what a Supreme Court does.
Laurence Tribe [00:28:08]: One other really important point is that the Court could have made things much harder for most of us by simply saying in a way that would sound technical and in a way that several of the justices were ready to say, oh, doctors and clinics don't have standing to argue in this case because they are not the ones who are directly hurt. In fact, Kavanaugh and Alito in particular makes the argument that the clinic and doctors have a conflict of interest and that they really don't represent the women fully. If they had done that, it would have been virtually impossible to challenge all of these Trap laws in state by state on a particular basis of how much burden they impose, because the only people with standing would have been the women who were deterred from invoking the right.
Harry Litman [00:28:54]: All right. Well, we're going to see. And the election will be a big part of it where June Medical winds up being in the constellation of abortion jurisprudence. It's time now for our sidebar feature. Typically, we have one often well-known person explain a specific, timely concept. Today, we're changing it up and we're having 10 different people expound on a timely concept. I think you'll get the point.
Anne-Marie Slaughter [00:29:19]: I'm Anne-Marie Slaughter. Larry, working for you after I graduated from law school, inspired my career as a law professor and realist as someone dedicated to public service. You're a towering figure in the law, but you've never forgotten that law not only constitutes the people, it serves them.
Jeffery Toobin [00:29:42]: Hey, it's Jeff Toobin. So the first day of con law with LT, he says your homework is to read the Constitution. It's easy. You can do it during the commercials. And he was right. And he's been right throughout my education as a student, as a research assistant, as a journalist who's following him and as a citizen who is grateful for him and his many, many contributions to our country.
Martha Minow [00:30:10]: I'm Martha Minow. And Larry Tribe recruited me to join the Harvard Law School's faculty nearly 40 years ago. How fitting that we have the chance to salute Larry in 2020. Larry's always had 20/20 vision or better when it comes to law, justice, persuasion and Larry's decency and kindness and friendship are gifts I will always treasure.
Harold Koh [00:30:35]: Hi, Larry. Harold Koh from Yale. Congratulations on this new chapter. Let me speak for all of the students who didn't get to know you well in law school, but benefited from their mentorship afterwards. You're the best. Congratulations.
Jonathan Massey [00:30:50]: This is Jonathan Massey, a lawyer in Washington, D.C. Congratulations, Larry, on a stellar legal and academic career that has made the world a better place for so many people and also for being one of the most caring and generous people on the planet.
Bob Shrum [00:31:04]: My name is Bob Shrum and Larry and I have been friends for 63 years. He's changed America for the better as few others ever have. Then he changed my life and gave me my dream when he sent me off to politics.
Jamie Raskin [00:31:18]: Hey, it's Jamie Raskin calling in with a lot of love for Larry Tribe. I got to tell you that I don't know that there's anybody who could be more grateful than me because I found in Larry Tribes' class my girlfriend that became my wife. Therefore, I guess I owe my wife and my family to his class. I found my career because I fell in love with constitutional law and I became a constitutional law professor. Rock on Professor Tribe and Long May You Run.
Ron Klain [00:31:45]: This is Ron Klain from Larry. Tribe could set his students heads spinning when he's talking about the Constitution's geometry and he could set their hearts on fire, talking about its purpose and its meaning. He changed my life. He was the best teacher I ever had.
Adam Schiff [00:32:01]: Hi, Larry, it's Adam Schiff. I just want to thank you so much for being such a wonderful friend, inspiration, professor champion of our democracy and our institutions. I can't tell you how much it means to me to be able to call you friend and to be able to call you and get your advice and counsel. It's safe to say no law professor in this country has had a greater influence on the development of the law or new laws in Congress. Thank you for everything. My wonderful friend and inspiration.
Kathleen Sullivan [00:32:34]: This is Kathleen Sullivan. Larry Tribe, constitutional genius, scholar, advocate, adviser, but also the greatest professor I ever had. And it's hard to imagine Harvard Law School without Larry Tribe teaching there. And yet he will teach on each and every day through all the students he has taught. And we were so very lucky to have him.
Jennifer Bassett [00:33:04]: Before next segment, I just want to take a moment to think express VPN for supporting the show data privacy is very important to me, both personally and as a producer for Talking Feds. While I previously thought I was doing a good job at data privacy. I feel so much safer now that I use express VPN and regardless of device, whether it's my computer or tablet or smartphone express VPN keeps my privacy protected. It is also the fastest and most trusted VPN on the market. It's rated number one by CNET, Wired, the Verge and more express VPN secures your privacy and protects your information. Visit Express VPN dot com slash feds and you can get an extra three months free on a one year package. So protect your online activity today with the VPN that we trust to secure our privacy. That's express VPN.com/Feds Express VPN.com/feds to learn more.
Harry Litman [00:33:56]: All right. Well, that puts a lot of pressure on one of our panelists. Let's move now.
Laurence Tribe [00:34:02]: Harry, am I am I allowed to say two words about that?
Harry Litman [00:34:05]: You do have a right of rebuttal, sure.
Laurence Tribe [00:34:07]: Rebuttal. Yeah, I was thinking of funny things to say, but I just got teary eyed when I heard all that stuff. From Anne-Marie and Jeff and Martha and Harold. And Jonathan and Bob and Jamiw. Ron and Adam and Kathleen. And it's just you ambushed me very effectively, I must say. Thank you.
Harry Litman [00:34:25]: You bet.
Dahlia Lithwick [00:34:26]: Can I say one thing to Harry?
Harry Litman [00:34:28]: Sure.
Dahlia Lithwick [00:34:28]: I just want to say that.
Harry Litman [00:34:30]: Where were you?
Dahlia Lithwick [00:34:31]: Nobody invited me to be in the mash up. But I would like to say really, truly. And Kathleen Sullivan taught me, Con Law. So I was one of those people who was a a Larry Tribe grand baby.
Harry Litman [00:34:43]: Your Tribe number is two.
Dahlia Lithwick [00:34:45]: Yeah, right. Exactly. I'm one degree of separation. But I want to say in all seriousness that Larry, you know, was a legend my whole time coming up through law school when I was a young Supreme Court reporter. And out of the blue he probably doesn't remember, but he sent me the kindest note. Years and years ago, that was just absolutely embodies what everyone is saying about his generosity. And I just want to add, because it's, I think, a non-trivial observation that Larry has been the spine of resistance Twitter in the legal world for so, so, so many people. I'm not sure he fully appreciates that. There are so many law students and young lawyers who hang on his every tweet. And that's probably not something that Larry thought he would be doing at this stage of the game. But on behalf of so many of us, I'm so grateful.
Laurence Tribe [00:35:32]: Thank you, Dahlia.
Harry Litman [00:35:33]: The encomia are much deserved. All right. So Seloa Law versus CFPB is the case that I was suggesting up front might actually be 10 years from now seen as the biggest opinion and decision of the term. Let me try to set up this arcane constitutional issue, but very important. But it's set right in the middle of an important debate between Right and Left and then sort of the culture wars that began during the Reagan era and the founding of the Federalist Society.
Harry Litman [00:36:06]: But OK, we have a textualists court here. So what text, what words are they interpreting? Only these that the executive power shall be vested in a president of the United States of America. So though the advocates in adherence to the so-called unitary executive theory, which you've heard about, really point exactly to that and unroll all kinds of potential corollaries from just that notion. And indeed, John Roberts, in his opinion here, comes damn close to endorsing it in toto. Again, with this kind of grandfathering exception for things that have already been decided. But he comes out of the box and says, this is the important thing about the executive and the executive only, all the power resides in that one person. And so the case concerns the constitutionality of a provision that made the head of the CFPB a single person who could be removed only for cause, and that chafed among adherence to a unitary executive because they think it's a maybe the but certainly a concomitant of this sole possession of the executive power that the president can fire somebody for good reason, no reason, any reason at all, as opposed to for cause. And that that very existence of a feature like that sticks in the craw of the sort of purists who want to see what, as Justice Kagan said in her dissent, a kind of very simplistic three silos of government. All right. So we have the holding of the case, which is that it goes too far for some reason and violates the separation of powers. Another word that isn't in the Constitution but is derived from the structures therein to have a single person with a lot of power at the head of the newly created Consumer Protection Finance Bureau, who can only be removed for cause and the President can't just say willy nilly, you're out. And in fact, the holding of the cases of the President can say willy nilly, you're out. Well, let me start actually with the cultural point that I've made. Why is this a big article of faith for conservatives? This is a big happy day. Why is it such a big deal to this, you know, now sort of second generation of conservative scholars, this principle of unfettered removal power on the part of the president?
Laurence Tribe [00:38:38]: Well, I think it's a big deal because they want to dismantle the administrative state, the alphabet soup of agencies, the FTC, the all of those agencies, many of which have significant independence from the President, either because of limits on the removal power or for some other reason that basically want a sort of Steve Bannon-like mash it all.
Harry Litman [00:38:59]: And why, Larry? How is that consistent with general conservative attitude?
Laurence Tribe [00:39:04]: Because they don't believe in government. They think government is bad. Ronald Reagan says the most scary words in the language are from the government and I'm here to help you. And if you can take the government apart, take the federal government apart in particular, and rely on private initiative and maybe state and local government to deal with coronavirus and everything else, you've achieved your objective of undoing the New Deal. I mean, it's basically a revolution trying to turn the clock back before 1937. It's a it's a huge deal. And although this decision in itself doesn't achieve that and in fact as Kagan points out and demonstrates in her remarkably brilliant dissent, probably this decision doesn't make a hell of a lot of difference in terms of the way you see CRPB actually is going to work. This is the biggest shot that the court has fired in the direction of dismantling the entire federal government as a as an effective institution.
Harry Litman [00:39:57]: Ron, do you buy that basic analysis of why this is near and dear to the heart of the no longer new conservative?
Ron Klain [00:40:04]: I agree with Larry, his analysis. I do think that, in fact, rolling back delegation doctrine, I think, is a bigger threat to the future of the administrative state than this than this appointment or removal issue.
Harry Litman [00:40:17]: Give us 30 seconds on on what that means.
Ron Klain [00:40:20]: So the question is really what kinds of decisions can be left to administrative agencies versus being have the made by the Congress itself? And that was the doctrine that really substantially blew apart when the Court was on the wrong side of the New Deal and till the Court reversed itself. And I think that to me is the thing that really puts the administrative state at risk. That's also another part of the same legal movement. Larry's talking about. I think his appointments thing is a particular sticking point for legal conservatives. I do think two things about this case. One, I think Chief Justice Robert's opinion on the one hand, Justice Kagan's dissent on the other hand, these are the two opinions from the term most likely to be reprinted in constitutional law adn administrative law casebooks for the foreseeable future. Generations and generations of generations of law studnts are going to read these two opinions. I also do think it's worth saying, as Justice Kagan did, as someone who's been in the White House, as both a legal scholar, genius herself, and also a practical, experienced executive branch official. The practical application of this, as opposed to delegation doctrine, may be much less. In fact, if you think about the CFPB itself, what we know, what you know, Harry, is that President Trump was ready to remove the independent director of the CFPB for cause, in quotes, because he was just going to drum up something and claim he had mismanaged the agency and fired him anyway.
Harry Litman [00:41:42]: It's the lying principle that Dahlia said.
Ron Klain [00:41:44]: It's the lying. But, yeah, maybe maybe that's moot. Who knows how the court would have passed that out? I'm just saying in practice, I mean, Justice Kagan points out, on the one hand, there are four other agencies that have this appointment structure. Their big Social Security administration is one of them. Federal Housing Financing Administration is another one. But also makes the point that actually, in essence, since the Civil War, Congress has set up this kind of thing only four times, five times. It's not that frequently occurring. If you believe that the multimember agencies like FTC, SCC are truly protected. That's what Roberts says. Let's see then. You know, how big an impact this really has. Not totally clear to me, but certainly the philosophy embodied in Roberts opinion, that genius embodies to Justice Kagan's dissent. We are going to read those over and over again for years to come.
Dahlia Lithwick [00:42:33]: John Roberts and Elena Kagan are two sides of the same coin. They are such remarkably similar characters, despite the differences. And one of the ways in I think both of them have just tremendous E. Q ability to read the room, very, very deft readers of a situation. And I think they're both singularly good at that. And just to Ron's point, they're both such phenomenal writers. And I just you know, I have to commend to folks you flicked it at Harry. But we should say it explicitly. Here's Elena Kagan in dissent. Quote, The majority offers the civics class version of separation of powers. Call it the Schoolhouse Rock definition of the phrase. See, Schoolhouse Rock. Exclamation mark. And then she goes on to say, you know, YouTube videos of Schoolhouse Rock. I mean, she's just really masterful at the send out the scoffing. Really, really this is only one administrator as opposed to a different structure. Come on. You're gunning for that, too. And then. And then also just noting why the CFPB was set up, what it was designed to do, this very, very careful coda saying, we built this organization. This country built it for a reason. And that's what's going to be affected. And I just think it's so remarkable to see the two of them when they really face off in this way in a majority and a dissent, because they're both just so good at it.
Harry Litman [00:44:00]: And they've done it before, you know, and this is we're a hometown crowd. But I really would say that that Kagan a she's broadened the possibilities of Supreme Court writing. She shifts in this opinion, as she has in the past, implicitly into a sort of a second person directly talking to the people as opposed to Roberts. And I you know, I think for the combination of technical chops and occasional soaring or really perfect little paragraphs, I think she is the Roberts, a great craftsperson. But I think Kagan is really the gold standard of writing on the Court. But you're right, that few terms now, how many has it been that they've been together? Something like nine. And I can think of two or three other instances where the term has ended with a kind of Ali-Frazier back and forth between the two of them that I think people will study.
Harry Litman [00:44:51]: But she actually says kind of contra to Ron that the practical implications are pretty big here because she says what should be the guiding principle? The majority kind of makes up this, what she calls an anti concentration of power principle. What really should matter is if the political branches get together and say, here's a good idea, here's a good way to split the baby in this instance. So she suggests at least that there will be, at least by the rationale of the opinion, all manner of practical New Deal like solutions, some of which will be right, some of which will be wrong, that this will just take off the table for the political branches. She she sees, I think, a bigger potential practical impact than Ron suggests.
Laurence Tribe [00:45:36]: Harry, I agree very much with you. I think apart from the brilliant style, I mean, she's she does talk directly to the reader. She says the question, which by now you're well equipped to answer is this. I mean, it's just brilliant exercise in persuasion. Apart from that and apart from the devastating logic, she's basically saying that the stupidity of the majority and its failure to recognize how government works shows how brilliant the framers were in not tying Congress's hands as much as Roberts and his colleagues would. She makes a powerful case that this is a direct assault on the great case of McCulloch V. Maryland, which I know think she mentions, but which you might as well. The point is that this is a constitution designed to last for the ages. It was never designed to set things up in three completely separate silos. And she demonstrates more devastatingly than I've ever seen done how the formalistic approach of reading the Constitution, the way Roberts does here, is going to basically destroy the effectiveness of government. What essentially she does in this case convinces me that the Roberts approach, which is not quite as extreme as Gorsuch and Kavanaugh and Alito and Thomas, but almost is not really going to last. She's written an opinion that will, I think, be in casebooks 50 years from now, not just 10. And his is going to be in the dustbin of history.
Harry Litman [00:47:04]: Ron. Ron is dead on this, will. I think this is the argument why this might have been the bigger battle so far of the whole term. We could talk about this much longer. I just like to take three minutes, though, because everyone here now has adverted to the remarkable power that a combination of of practical circumstance and tactical genius have now invested in the Chief Justice who not only assigns the opinions, but pretty much I think he is has been the fifth vote in all five, four votes. And I just want to ask this question. When when Kennedy was the pivotal vote, there were--sophisticated advocates framed their arguments in terms of the things that they thought would attract him, the kinds of arguments he might be soft for. Now, what happens in the new in this new day, especially given, as Dahlia has said, the great kind of sophistication and self-possession that Roberts already has? What kinds of arguments will the best advocates be making to specifically try to pluck off that fifth Roberts vote in the coming terms?
Laurence Tribe [00:48:18]: Gee, you know, as someone who has taught both Roberts and Hagan, you think I might have some ideas about this.
Harry Litman [00:48:23]: And argued 35 cases!
Laurence Tribe [00:48:25]: I have to say, I almost draw a blank. I mean, appealing to him means talking in ways that he believes can be made easily understandable. He really doesn't like things that are going to sound obscure. He loves simplification. He loves things that will fit on a bumper sticker. Ultimately, though, he is a brilliant legal mind and writer. He's not, in my view, quite as brilliant as Kagan. But you have to I don't mean talk down to him, but you have to give him things he can work with. Take his fundamental ideology as a given. You're not going to move in there, but try to find categories that will enable him to believe he's advancing his interests in the long run while doing something in the short run that makes legal sense.
Dahlia Lithwick [00:49:10]: I think I would probably say, and I've been saying this just this term, I think with Roberts it was essential this term to look at the whole board. And I think in any of the cases we've discussed where he flipped and voted with the liberal wing, he would have done something entirely different if all of these cases hadn't been the sort of three car pileup clown show. Everything was on the docket this term. And then you had to sort of reverse engineer what are the things that he's gettable on because they're not his issues. And I think that, you know, we know what he cares passionately about. He cares passionately about voting. He cares passionately about race. I think he cares passionately about making sure that big business is happy. And that at least gives you, I think, some clue to the places that he defected this year. But I would say there are some rock solid principles and I would submit that voting is one of them where you're just not going to get him. I think the five four late night decision about Alabama curbside voting is a good example. I'm not sure he's gettable on some issues. And so in addition to I completely align myself with Larry, which is to say, I think there's a form of argument that is absolutely going to work for him. And I think people are going to be looking to pick off Kagan and Breyer and Gorsuch and Kavanaugh and create some kind of a middle bulge around centrists at the court. But I think the real issue is it's hard to look at any of these cases in isolation because I think they were pinging off each other all year.
Ron Klain [00:50:44]: Yeah, I mean, if I could just build on that with both what Larry and Dahlia said, I do think there's three things about Roberts. I think if there is a philosophy here, what's really interesting and different about him versus Kennedy, Kelly, you could understand what the philosophy was. People could say it was fuzzy or kind of too vague, but you knew what he was going for here. I think there's a philosophy with Roberts. It's around the idea of the Court as an institution trying to restore some of the dignity and legitimacy it lost with Bush versus Gore. Were all the products of our own time. He's the first post Bush versus Gore, Chief Justice. I think he's tried to think about how to give the court a less political, less partizan image. I think that's part of these decisions. And I think the sloppiness of the Trump administration of the DACA case, the ballsiness of the Louisiana law to mimic the Texas law here, I think he's just trying to shave off some of the sharp edges and redeem the court a little bit as an institution. I do think, as Daley alluded to before, he is playing the long game. Even a ruling that may seem somewhat liberal may have the seeds of future destruction in it. I think if you think about Bostuck, that Title seven ruling this term was the embrace of textualism there a one two punch to eventually take down affirmative action later on. Just want to flag that as a possibility. And then finally, I'd say, you know, as Dahlia said, it's the whole board. We're having this conversation before the Supreme Court rules on Trump's tax return, on the religious exemption case that are coming the week after July 4th. And it's possible that, you know, Roberts looked at all these votes, lined them all up, picked the things he was going to go right on, in some cases, picked a few things to kind of do to look like he's balanced. And when we add this all up, this may look very different a week from now than it looks today.
Harry Litman [00:52:29]: I think these are all great points. I'd only add to them this might be cynical on my part, but I'm trying to think of the counter example of this. I knew him, as did others, I think, in the SD office. He's a dyed in the wool Republican. And when there are real stakes for one party or another, I think that will matter to him. But the the only argument, kind of rhetorical strategy I would think of is to try to present one's position as very much incremental, shaving off as Ron says, and playing to this notion of modesty in the court as taking baby steps to the extent you can win those sorts of rhetorical battles with your opponent. All right. Another huge topic for the ages, which we'll talk in turns to come, but we are out of time for what's been a fantastic hour. Thank you, everyone. We have just a couple of minutes for our final feature of five words or fewer, where we take a question from a listener and each of us has to answer in five words or fewer.
Harry Litman [00:53:25]: And this today is from Jamie Barwell, who asks, Who will win the three Trump financial records cases?
Laurence Tribe [00:53:36]: High burden, no absolute immunity.
Harry Litman [00:53:39]: And just kind of curious. That's speaking specifically to the congressional cases. Yes.
Laurence Tribe [00:53:43]: No, I think it's a both. It's going to be you won't be able to just do fishing expeditions into the presidency. Even into private pre presidential papers. But the idea that being president will give you a total immunity will be rejected. That's what I would think.
Harry Litman [00:53:58]: Gotcha. But that will apply even in the Vantz case, that they might remand to see whether he's made an initial showing of special need. Yes.
Laurence Tribe [00:54:06]: That they might remand and all of them.
Dahlia Lithwick [00:54:08]: My answer was going to be: kick the can down the road.
Harry Litman [00:54:12]: Nice.
Ron Klain [00:54:13]: Damn, that was mine.
Harry Litman [00:54:13]: Don't need that definite article.
Ron Klain [00:54:16]: Can kicked. Trump stalls.
Dahlia Lithwick [00:54:19]: In four words, too! You beat me.
Harry Litman [00:54:23]: My five is. Agree, as always, with Larry.
Harry Litman [00:54:33]: Thank you very much to Dahlia, Ron and Laurence Tribe Emeritua. 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 podcast or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFeds od to find out about future episodes and other feds related content. And you can also check us out on the Web TalkinFed's.com, where we have full episode transcripts. Or on Patreon where we post ad free episodes, but also discussions about special topics exclusively for supporters. We've had, I think, five just this week, including conversations about Hong Kong, Princeton, Larry Tribe and the Russian bounty. And follow our special series of interviews with potential running mates for Joe Biden. We've just published a one on one with me and Stacey Abrams that I think is as thoughtful and nuanced, a discussion with her as I've heard. Submit your questions to questions@talkingfed.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.
Harry Litman [00:55:54]: Talking Feds is produced by Jennifer Bassett and Rebecca Lopatin. Our editor is Justin Wright. David Lieberman and Rosie Don Griffin are contributing writers, production assistants by Ayo Asaba Mirro. And our consulting producer is Andrea carla Michaels, thanks very much to all 10 of the former Tribe students and fan club members for sharing their gratitude to Laurence Tribe for his great effect on their lives. Our gratitude is always to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is production of Delido LLC. I'm Harry Litman. See you next time.
