William Baude and Anthony J. Casey, "Supreme Court Preview 2019: Highlights and Perspectives"
On the first Monday in October, the Supreme Court session opens. Each fall, the University of Chicago Law School invites faculty members to offer insight into some of the issues the Court will hear in the upcoming year. This year we heard from William Baude, Professor of Law and Aaron Director Research Scholar, and Anthony J. Casey, Professor of Law.
Recorded on October 15, 2019, at The Standard Club in Chicago.
Transcript
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Host:
Please welcome Professors Casey and Baude to tell us about the Supreme Court term.
Audience:
[applause]
Casey:
Thanks Tom. Thank you all for being here. First Mondays is one of my favorite events at the Law School. We get faculty and alumni together. We preview the term to think about the cases the Court's going to hear and decide over this term. Now, as Tom mentioned, we're, we're a little late. We're not on the first Monday, so the Court is already in session and one of the cases I'm going to talk about today is actually argued this morning, so I'm sure everything I say is consistent with the argument. My predictions are exactly right, but we'll see. So I actually think this term is going to be particularly exciting. There's a lot of heated and political cases, a lot of controversy that I think the media is going to pick apart and see why they split on this and why they went certain ways in every case. So far, roughly 45 cases that certs been granted on, depending on how you count and obviously there'll be a lot more to come. We can't talk about all of those. So I've chosen three high profile cases that I think show us where, you know, the pressure points, where the Court's going to split, where interesting divides will arise and my colleague will have some cases like that as well.
Casey:
In those cases, I think one theme comes out and I want to focus on that and I'll, I'll call it a formalism versus pragmatism theme and specifically the idea that the government can do certain things, but it's supposed to do them a certain way and the Court has to decide what to do when they don't do those things the right way. They're allowed to do it, but they did it the wrong way. Do you hold them to the technicalities in validate the action? And if you do that do you live, who lives, who fixes and how do you live with the mess that might result? And a question along the way you have to ask is, you know, is the Court good at deciding whether this mess is something we're willing to live with? All right, so the first case I want to talk about really ties to that theme of doing something the wrong way.
Casey:
This is the Murphy case from the 10th circuit. It's actually a holdover case from last term and the Court punted the case, a lot of people think, because they're uncomfortable with the results that come from a formalist approach and the precedent of the Court. So here's the setup. Murphy is a member of the Creek nation. Murphy was convicted of murder in Oklahoma. He claims that the crime for which he was convicted occurred on an Indian reservation. If that's true, if he's correct, there's a statute, the Major Crimes Act, that says Oklahoma doesn't have jurisdiction over the case. It-- crimes by Indians on Indian reservations under the statute have to go to federal Court. Right? That's his argument. And again, if he's right about all that, it seems like the outcome is he wins. I said, the Court might not be comfortable with that. So Oklahoma's brief argues the Court should not be comfortable with that, that if the Court agrees with him, they're going to open an entire can of worms.
Casey:
And page two of their brief is their strongest argument in the case. And it's this, that map, the Indian reservation, he claims the crime occurred on is the Eastern half of Oklahoma, which includes Tulsa. And so Oklahoma says, are you really gonna say that the Eastern half of Oklahoma's in Indian reservation? Now how does he even have that argument? Because in the 1800s unquestionably that was an Indian reservation and here's where pragmatists or formalism comes in. The Court has said Congress is free to disestablish that reservation, but Congress must do so in a certain way with very clear texts and very explicit words about we are disestablishing a reservation. A part of this is because reservations come from trees. They never did that. When Oklahoma became a state in 1907 there's no clear statement that that is no longer a reservation. Now, Oklahoma says that's gotcha textualism, right?
Casey:
It can't be. We all know that the Congress, when Oklahoma became a state, everyone intended for that to be part of Oklahoma, not the Indian reservation, but Murphy says that never happened. Now, as I say, the court pushed this case over to this term and basically when they did that, they asked for supplemental briefing and to be a little glib but not exaggerating too much. They asked the parties, can you find us a way out of this? They asked for briefing on, is there any other way we can decide this case so we don't have to declare half of Oklahoma an Indian reservation? Because Oklahoma claims that'll invalidate 2000 convictions and all kinds of other things they've done over the last hundred or so years. The US government filed a brief that might give the Court its way out. So they say, if you look at a series of statutes from 1900 from 1890 to 1907, if you look at those statutes holistically, now they don't tell us anything about whether that's a reservation, but they do seem to say Oklahoma can decide these cases.
Casey:
If that's true, the Court is faced with two competing statutes. We have one statute that says the federal government has to decide these cases. We have another group of that the US government says says, Oklahoma can decide them. That gives the Court wiggle room to say, Oh, we'll go with this outcome and never answer that question. If the Court does that, we should note though, there's nothing formalist about that, right? That is a pragmatic way to avoid the outcome that might result from the current rules of the game. If they don't go that way and they say that's an Indian reservation than someone has to live with that likely Congress in Oklahoma, that's the first case. The second case has a similar theme of doing something the wrong way, but it actually proposes a bigger mess. So this is the Puerto Rico case, which was argued this morning.
Casey:
In 2016 Congress created, Congress passed an act called PROMESA, which created a financial or a financial oversight board to help restructure Puerto Rico. Puerto Rico had had a bankruptcy statute that was invalidated by the Supreme Court because Congress didn't do a bunch of things in 1980s right? And then Congress responds and says, okay, we're going to create this financial oversight board. Financial oversight board has power to set the budgets of Puerto Rico and has power to bring cases to force creditors to take a haircut. Now, at the beginning of this whole process, Puerto Rico had $110 billion in debt and pensions. Then Hurricane Maria hit. That added 139 billion more. So as you can imagine, when you're restructuring over $200 billion in debt, creditors object, and particularly here, they've raised the following objection. Everything the board has done is invalid because it wasn't appointed the right way. And they point to Article Two which says, Article Two of the Constitution which says officers of the United States have to be appointed by the president with the advice and consent of the Senate.
Casey:
That didn't happen here. There was a separate mechanism where basically the president chose one and then asked for lists and chose from those lists for the other six. So the creditors say totally everything they've done is invalid. The board responds with a different provision in the Constitution. Article Four saying, well, Congress has the power to pass rules and regulations to govern the territories. And here-- I'll just, I'm not gonna use any more slides, but I want to take that off-- here Congress passed rules and regulations to govern Puerto Rico, including this board and they've got two examples that support their argument. The governor of Puerto Rico is elected, not appointed by the president and the mayor of DC is elected, not appointed by the president. And so they say to the Court, are you really going to say that they are invalidly appointed? Are you really going to go that far, right, that everyone doing anything in the territory is has to be appointed by the president.
Casey:
Now, the lower court didn't buy that argument. The First Circuit said, well, no, there's something different. The governor and the mayor are part of the inner workings of the territory. The board is an arm of the national government imposing federal policy on Puerto Rico. And that's the way a lot of people in Puerto Rico viewed it. Therefore though they are officers of the United States, they have to be appointed. But the lower court, and that's very pragmatic, but the lower court, that's very formalist, sorry. But the lower court wasn't willing to live with the pragmatic result of that. So if you invalidate everything the board did, you have to do a do over. A do over of restructuring Puerto Rico would be unwinding everything they've done on that $200 billion of debt, requiring a new statue from Congress, new appointments, right? And a do over today, given what's happened in Puerto Rico, given the administration's relationship with Puerto Rico, given the administration's relationship with Congress, that's a daunting task.
Casey:
So the lower court said, we're not going to invalidate everything that-- they're invalid. They're not appointed correctly, but we're not going to invalidate their actions. We're going to use this de facto officer doctrine to say, because they thought that they were acting under authority, because they thought they were appointed appropriately, everything they've done, everything they're doing and everything they do until we resolve this case is valid, which gives us two appeals. We have the creditors appealing the remedy, the de facto officer doctrine, and we have the government board appealing the appointment's decision. All right, so my take at the Supreme Court, we have the first one, the appointments decision. I think the government and the board have an uphill battle, right? They are going to have to argue that the board is not an arm of the federal government, not national policy, that it's the inner workings of Puerto Rico.
Casey:
If the Court agrees with me and the lower court on that, then we get to the remedy in a pragmatic problem, and I'll be blunt here, I think the court, the lower court's ruling in the de facto de de facto officer doctrine makes no sense. The de facto officer doctrine, is supposed to be someone does something in the past. The dust settles, someone challenges that and says they didn't have the authority to do it. So they say, well, everyone thought I did. We're not going to undo things. That's not this case. This case was, I'm doing something. The creditors say, you can't do that. We go to court, we argue about whether I can do it. The Court says you can't do it, but because you think you can do it, we're going to say you can do it. There's no doctrine or case that says that. Right. So I can't imagine the Court affirming on that, which means either we say they were appointed appropriately or we're formalist and someone's got to live with the mess, be it Puerto Rico or Congress or whoever's going to fix this.
Casey:
Which brings me to my last and third case, which is kind of a parody of the government doing things the wrong way. This is Kelly v United States. You know this case, you know it as the Bridgegate Case about Chris Christie's reelection as governor. Here's the case. Turns out the George Washington bridge is the busiest bridge in the world. It goes from New Jersey to New York. It has a lot of traffic on it. However, there's 12 toll lanes and three of those toll lanes are exclusively reserved for traffic coming from the city of Fort Lee. Now that's a good deal for Fort Lee-- Fort Lee is a city in New Jersey right at the base of the bridge-- because they have 5% of the traffic and 25% of the lanes. How do they get that deal? Decades ago, the mayor of Fort Lee entered into a political bargain with the governor and got a good deal.
Casey:
Fast forward to 2013. Chris Christie wants to be reelected as governor. Chris Christie wants the mayor of Fort Lee to support his reelection. He starts with the carrot, not the stick. He flatters the governor. He brings the governor to Giants games. He invites the governor to fancy parties at the governor's mansion, or sorry, the mayor, he invites the mayor to Giants games. He invites the mayor of Fort Lee to fancy parties at the, at the governor's mansion. He finds $5,000 in contributions for the local fire department in Fort Lee. He finds $300,000 for shuttle buses in Fort Lee. All of this to get the mayor to support his reelection campaign, and we should pause for a second. There's nothing wrong with that. There's nothing illegal about doing all of that. The lower court lists all of these gifts that were given in order to entice support as if it's just business as usual. That's fine.
Casey:
The problem was the mayor took the gifts and didn't give the support, which then led three people working for Christie to say, now it's the time for the stick. We're going to punish the mayor for doing that. Two of them worked at the port authority, which has power over those lanes. So they said what we should do is have a traffic study in which, in which we shut down or not-- we divert those three lanes to one. We say, you had three lanes, now you have one, but we're not going to tell them about it ahead of time and we're going to do it the first week of September when school is starting, which ultimately results in a traffic jam that shuts the entire town down. National news, this was what they did. Ultimately, one of them flips and it turns out there was no traffic study.
Casey:
This was all punishment for politics. The government wants to prosecute. The problem the government has is it turns out it's not a crime to shut down lanes to punish a political opponent. There's no statute that says that's a crime. So they say, we've gotta be clever here. It's always the cover-up, not the crime. All right. They said it was a traffic study, so they lied. Therefore they, the three of them, took control of government property by lying and that's fraud. And that's theft of government property by fraud. Those are illegal or there are two statutes to make fraud and theft of government property by fraud illegal. So they prosecute them under that. Those two statutes and the text is pretty much on their side, right? You can say, well, there's government property, there's a lie. Okay, and they win at the district court and they win at the appeals court, but I'm going to call it now. They are going to lose spectacularly at the Supreme Court. Why? One, the Supreme Court grants cert in these kinds of corruption cases to reverse. That's what they always do. That's what they're likely to do. Two, the government is forced to make basically the following argument. It's a crime for a politician to lie about why they're doing something, which makes for some fun briefing.
Casey:
The defendants have fun, like all the things politicians lie about filling potholes for people you like versus the ones who don't like. Redistricting. All kinds of things. Politicians lie all the time and that's basically their defense and I think the Supreme Court's going to go with that and to go full Chicago. I'll want to close with quotes from not a Supreme Court opinion, but an opinion that is very prominent in the briefs and I think might be prominent in the Supreme Court's opinions. It's an opinion by our own judge, Frank Easterbrook. Now this is it from the Blagojevich case you might remember. He's one of our many governors have went to jail. He's still in jail, but what you might not remember is some of his convictions were actually overturned. The ones that didn't involve money, the ones that were him asking for a cabinet position in order to appoint a Senator and Frank Easterbrook wrote in reversing those: to call this fraud supposes an extreme version of truth in politics in which a politician commits a felony unless the ostensible reason for an official act is the real one. Sounds a lot like this case. Then he goes on to say it would be more than a little surprising to members of Congress if the judiciary found in the mail fraud statute, a rule making everyday politics criminal. For good measure he adds, if that were true Justice Earl Warren was the biggest felon of them all because he was a politician. And he goes, that can't be right. We're not gonna, we're not gonna find that. And I think the Supreme Court will go that way because ultimately doing something wrong, lying about it, doing it the wrong way is bad. It might invalidate an action, but I cannot imagine the Court going so far to saying it's a crime in particular, this court, which has to explain to us whatever they do in the Puerto Rico case and the Oklahoma case, which will be very difficult with that. I handed over to Will.
Audience:
[applause]
Baude:
Thank you. So my cases aren't nearly as funny. Um, but they are on this theme of, uh, doing things the right way and doing things the wrong way. And the sort of the test of the formalism of the Roberts court. Uh, I guess one thing I want to add to that is that this question of, you know, are you, you can do it, are you going to do it the right way or the wrong way is also something that applies to the courts themselves. So the First Circuit's, uh, opinion in the bankruptcy case is a good example of how to do something that might be right the completely wrong way. So if you wanted to uphold the, or to, to not disrupt the entire bankruptcy process in Puerto Rico, the wrong way to do it was to say, well, actually all of a Puerto Rican government is unconstitutional.
Baude:
Uh, but don't worry, we're going to ignore it because people want us to. Um, there is a kind of a very narrow formalist path you could imagine the court proceeding on if they wanted to uphold the bankruptcy, right? First they'd have to say, well, there's a difference between the offices appointed in, in, you know, most of the country in the offices appointed in the territories, there's a sort of implicit exception to the separation of powers for the territories. Second, this board falls in that implicit exception of the territories instead of the argument that that Tony was skeptical of. I think rightly so. Is it maybe you could cram them in. And then even if this is in the implicit exception for the territories, you have to get around the, the sort of the involvement of the Senate in this process. Because there are cases saying whatever you do, you aren't supposed to be able to give the Senate a sort of veto or a special role in the process of, of making law or making appointments.
Baude:
And so you'd have to get around that also, but, but maybe the court could find that path, but the, the sort of the path to uphold it on instead of the formalist grounds, the court purports to believe in, uh, are very, very narrow. And the same I think sort of temptations about what methodology to apply and whether that can get the court to the places that some of the justices instinctively want to go are going to be on a, on offer in a couple of the other big headline cases of the year. One of those, which was also argued last week, uh, is a set of cases about Title VII, the employment discrimination statute, the Civil Rights Act, which says that most employers cannot discriminate on the basis of sex. And the Supreme Court has agreed to hear, well, does that statute apply to people who are discriminated against on the basis of their sexual orientation?
Baude:
Uh, the cases are called Bostock vs Clayton County, Georgia and RG and GR Harris Funeral Homes versus the EEOC. But the case that really kicked this off is actually a Seventh Circuit case, Hively vs Ivy Tech Community College, which is our, uh, decided en banc by the Seventh Circuit a couple of years ago. The only reason it's not the case at the Supreme Court is because after Ivy Tech Community College lost, they wanted nothing more to do with the case. Uh, in fact, at oral argument they kept saying, To be clear, we didn't, we don't actually want to discriminate on the basis of sexual orientation. We don't think we did discriminate on the basis of sexual orientation. We don't want to be sued. And so we're making this argument because we don't want to be sued, but you know, we don't actually want to defend this at all. And they stopped wanting to even have anything to do with the litigation, but it produced a set of Seventh Circuit opinions that turned out to be the perfect, uh, teaching materials for, uh, Elements of the Law, which I'm teaching this fall. And actually I'm teaching this case tomorrow because it features an opinion by Chief Judge Wood, uh, saying that yes, Title VII does apply to, um, sexual orientation pretty much as a, as a matter of pretty simple logic that anytime you discriminate against somebody because they are attracted to or involved with people at the same sex, the, that employee's sex is an ingredient of your decision. Right? That, that sort of the example that keeps getting repeated is to fire a, a man because he likes men when he wouldn't fire a woman who likes men that's discriminating on the basis of sex and vice versa.
Baude:
Um, so that's the statute says, there you go. Uh, Judge Posner refuse to join this opinion, uh, and instead wrote a, an opinion saying this has nothing to do with the text of the statute. Uh, nobody thinks that discrimination because of sex and because of sexual orientation are-- were the same thing when the statute was enacted. Uh, but the important, more important principle as that times can change. And we as judges have to update the law when it's out of step. So the same way that with the antitrust laws, we've been constantly updating and revising them on the basis of economic analysis of law, a major Judge Posner project, uh, we ought to be doing the same thing to all the laws. Uh, and that's really what we're doing here. So don't believe the court, he says when they tell you they're just interpreting the statute, they're really updating the statute the way I want to.
Baude:
And then Judge Flaum also wrote a separate opinion, saying don't believe Judge Posner when he tells you that you need to engage in updating to get to this result. This is really a very simple textual case and sort of walks through the most formalist. And textualist account of of this. And then Judge Sykes, uh, writes a dissent saying, you know, we all know that there's a difference between being, uh, being sexist and being homophobic. Those are two different kinds of discrimination. They might both be bad, but they're different kinds of discrimination and therefore we ought to treat them all differently. So all of the different, uh, options are, are available for the court and they started wrestling with all these hypotheticals. So the thing that makes this a particularly tough test for the court is this: the most straightforward textual arguments and the most straightforward arguments based on precedent, all favorthe plaintiffs, right?
Baude:
A Judge Wood is right! Judge Wood is right when she says, when you fire somebody because they are attracted to somebody the same sex, they're sex is an ingredient of the discrimination. This is a straightforward textual logical way in which that's discrimination on the basis of sex as part of, uh, as part of deciding somebody's sexual orientation. And the Supreme court has cases, uh, in the sexual harassment context and, uh, in the sex stereotyping context that sort of further reinforce this kind of reading of the law that say that, you know, you're not allowed to fire a woman because she's not acting like the right kind of woman and saying that same sex sexual harassment can be covered by the statute even though it's not something that was, uh, super, uh, on Congress's mind in 1964 in the act of the statute. So on the kind of the normal formalism that a lot of members of the, of the Roberts court, uh, apply, it seems like the plaintiffs ought to win, but there is a little known exception to the normal principles of formalism, uh, called the, this can't be right principle, uh, which the court drags out about once every 10 years when confronted with some situation where the text really just seems pretty straightforward, but they think this just can't be right.
Baude:
Uh, the one of the classic cases is about whether tobacco is a drug with meaning the food and drug laws, which obviously is, and the definition of a drug is a device designed to impair or affect the function of the human body. And tobacco does all that. But the court said if we treated tobacco as a drug, we would have to ban it because it doesn't meet any of the tests of it being a safe and effective drug. It doesn't do anything other than kill you. Uh, and we don't want that cause we all know that, that people are supposed to be allowed to smoke. And so they find some way to avoid reading into the statute. And the justices last week seemed to be in a kind of similar bind here when they just think about, you know, in 1964 when these words were enacted, is it imaginable that, that the argument we're making now would have been taken seriously.
Baude:
They say just that just can't be right. And they look at the fact that Congress for basically every session of Congress, uh, for the past several decades has considered and sometimes one house has passed legislation adding sexual orientation to the list of protected categories under Title VII. And it's never happened. And they'd say, look, the fact that everybody seemed to think we needed to add something to the statute suggests it wasn't there already, but, but they're going to have a hard time figuring out exactly how to, how to read that into the statute. Again, maybe they'll find some, some narrow formalist path. Uh, I haven't heard it yet. Uh, but, but maybe they'll find some narrow formalist path to explain why the, the thing they think can't be right, uh, is not right. But at the moment, then they're faced with a, a conflict between the, the, the principles they usually espouse and this intuition they're going to have.
Baude:
I had originally planned to talk about as my other main example, uh, the rescission of the DACA program. Uh, a bunch of cases, uh, from a lot of circuits, Trump vs NAACP, Department of Homeland Security vs the Regents of California, uh, would have a similar sort of feel where the, the Trump administration is trying to through executive discretion resend to the program that the Obama administration put in through executive discretion. And I've been told that they can't do it. Uh, and therefore the previous program was in place and this has a lot of the same feel. There are sort of some very technical arguments against what the administration is trying to do, but a sort of a strange big picture, uh, that, you know, why can't, why can't one administration undo what the previous administration can do? But because of what the court's been doing the past couple of weeks, I feel compelled to, to just talk briefly about a different case.
Baude:
Uh, which is a Second Amendment case about, uh, the right to keep and bear arms. So the case is the New York State Rifle and Pistol Association vs New York City. And when the case started, it seemed like it was going to be the court's third big case about gun rights, uh, New York has very restrictive rules for your ability to, to carry or transport, uh, guns. And so the challengers are people who want to be able to take guns from their homes in, in New York City to either second homes outside the city or the shooting ranges so they can practice and back. Uh, and they say, look, you know, the right to gun ownership doesn't mean very much if you can't even sort of take your gun with you from, from residence to residence or ensure that you actually know how to use your gun and therefore don't kill yourself or other people.
Baude:
Uh, and so they mounted a powerful challenge. They have Paul Clement, uh, writing their briefs and, and the court seems very likely to rule in their favor. So then a funny thing happened over the summer, which is that both in New York state and New York City decided they would rather give up than lose. And they, New York City repealed all of its regulations that, uh, restricted gun carrying and just for good measure in New York state came in and passed legislation saying that they can't bring them back if they want to. Uh, so it's sort of doubly gone. Uh, now everybody agrees that the challengers can, uh, carry their guns to their shooting ranges and to their second homes. And so it seems like they've gotten everything they want. So the city, uh, filed a, a funny thing called a suggestion of mootness, uh, which is, uh, sounds, uh, gentler and more polite than it was, basically saying, look, our brief is due, uh, but this law is gone so we don't want to defend it anymore.
Baude:
So would you guys please just dismiss the case like we gave up? It's over. And Paul Clement is a very good lawyer. So he filed a, a series of responses saying, no, no, no, you can't let them get away with this. Uh, you were poised to issue a major precedent with the Second Amendment that was gonna make a lot of people very upset. And here they are just trying to get out, like to not issue a precedent just by, just by giving up. Uh, if you let them do this, uh, this will be, this will be a, a new tactic everybody will use to avoid the, the new Roberts court. Every time there's a case that, that civil rights groups are, are afraid of the outcome, they'll just give up and then you won't be able to rule in it. And surely you guys don't want that, do you?
Baude:
So don't let them, don't let them moot this case. And a couple of weeks ago, the Supreme Court said the suggestion of mootness is denied. Uh, but we were going to keep considering this an oral argument. So you have to brief the case. I mean, you get to oral argument, we'll talk about this again. Um, so it's still a little hard to tell what's gonna happen, but, but my prediction that this case was obviously moot, uh, has failed. I'll even, so I was asked to join like an amicus brief on behalf of a bunch of federal court scholars, why the case was moot, which I didn't join because I said the case is obviously moot. The court doesn't need to hear from a bunch of federal court scholars, the case is moot. What would we even say? So, apparently I was wrong. So they did file the brief, it just doesn't have my name on it.
Baude:
Um, so, you know, I, it's, it's a real, it's a real puzzle. Now again, there are a couple of ways the court could that they, you know, could legitimately hear the case. There is a pretty radical academic argument that mootness shouldn't really be a part of the Constitution. That once the court has taken control of a case, that's the moment at which jurisdiction attaches. And you know, even if the world falls apart, the court still has the power to rule in this case. This is contrary to 150 years of precedent, but, but there's something going for it if you like, uh, overruling 150 years of precedent. And there's a very technical argument that challengers, try to make that while they are now allowed to take their guns to the shooting ranges, they might not be allowed to stop at Starbucks on the way to the shooting range because of the way the statute is worded.
Baude:
And while they didn't ask for that in their complaint, it still means the case is kind of alive because they'd like an injunction that protects their right to make reasonable stops on the way to the shooting range. But the city in their brief said, look, we're fine with them doing that too. They can, they can do whatever they want to on their way to the shooting range. You know, we really have no interest in defending this. And indeed the city's brief opens with, uh, just to be clear, we don't actually have an interest in defending the law. We can't enforce the law if we wanted to and we, we wouldn't, uh, we don't want to. So we are writing this brief only in the spirit of an amicus curiae. Uh, these are the best arguments we can think of to defend the law, which to be clear, we don't defend.
Baude:
We don't actually believe these arguments. So don't be mistaken that we, you know, have any dispute with the petitioners at all. But we're filing this brief because you seem to want us to. The thing I worry about is the court being persuaded by the, these more, these more practical arguments. By either the idea that, uh, the rules of mootness shouldn't apply to the Supreme Court because once the Supreme Court's decided it's really interested in something, they should just get to rule and it's cheating if parties decide to settle their dispute rather than let the Court issue a major precedent, uh, that would hold the Supreme Court sort of above and beyond the procedural and constitutional limitations that all courts are supposed to be subject to. And I worry that's very corrupting for the court's place in, in the law and American life. And even worse would be if the Court accepts in spirit or worse explicitly some version of this kind of a unilateral disarmament argument.
Baude:
So one version of the argument that I hear a lot is something like, look, you justices, you conservative justices, you all know the liberal justices would find some way to hear this case if it were helping them. So you should do it too. Uh, you shouldn't be principled and just apply rules of mootness that'll hurt you. That's unilaterally disarming, right? That's a baying sort of technical restrictions or norms when the other side is full of norm breakers and cheaters. And so you just can't unilaterally disarm. You know, you've got a fight back and argument that I'm hearing at every level of, of law and politics, uh, these days I'm afraid. And the last, the worst thing the Supreme Court could do would be to indulge that kind of impulse, right? If anybody's going to preserve these kind of formal rules or just the idea that the rules apply to everybody, regardless of which side you're on.
Baude:
If anybody's gonna preserve that, and I'm not sure anybody is, it's going to be the Supreme Court. So my hope is that by after hearing oral argument and making people write these briefs, and at least some members of the majority will recognize that indeed New York City did deprive them of this case. Maybe they're frustrated by it, maybe they'll find some other case to rule on it, but they ought to let the city, uh, sort of take yes for an answer, um, and, and shut the whole thing down and, and go home. But it's going to be one of the bigger tests for what the court wants us to think about it in the next, uh, years and decades. And I'm not sure what the answer is going to be. So with that, I think Tony and I would love to get some questions about any of these or, or anything else
Audience:
[applause]
Baude:
We've got a mic coming on behind you.
Audience:
Would you please comment on the significance of the Supreme Court taking cert in June Medical Services vs Gee?
Baude:
So this is, uh, an abortion case out of the Fifth Circuit that seems identical to a previous abortion case out of the Fifth Circuit, uh, decided by the Court back when Justice Kennedy was on the Court. Uh, and so one of the, uh, questions is whether this is going to serve as some sort of, uh, uh, the beginning of, of some backsliding on the courts abortion jurisprudence. Uh, I think the, I mean, the Fifth Circuit's ruling in this case was sort of in a way a dare to the Supreme Court, uh, to take the case. Um, the Fifth Circuit, more or less, uh, uh, more or less, uh, dared the Court to take it regardless of which side they're going to come on, come down on. So the fact that the Court has taken the case doesn't necessarily tell us yet which way they're going to rule, but I predict the state is gonna win. I predicted it. We are going to, it's going to be a long time before we see the plaintiffs win, uh, an abortion rights case in front of the, in front of the Court.
Baude:
So the question, I'll just repeat it, was, so how do they differentiate this case they've just granted from Whole Women's Health vs Hellerstedt, the previous case that it seems indistinguishable from? Uh, so in theory they can technically be distinguished on the facts that when the court had the previous case, they said this law, and I won't go into what the law is, but this law imposes a undue burden on a women's rights because it has the following effects on abortion clinics and here are the, you know, number of women who no longer can have access to reproductive services, and so on. And you know, they've just got sli-- slightly different records. So in theory they can distinguish it by saying, well, there we said it was this percent of the population and these were the radiuses. And Texas is really big. And so it's really hard for people to get to a clinic and Louisiana is smaller. And so there aren't as many differences. That's probably what they will say. Uh, but I think a lot of us will suspect the real difference is that Justice Kennedy was on the Court before and he's not on the Court anymore. Uh, and I don't think the Court will want to say that, but I do think a lot of us will think that's really what's going on.
Baude:
Anybody else?
Audience:
Isn't there a case that is supposed to come up in this, uh, particular session that deals with, uh, the state constitutional Blaine amendments? Either of you have some comment on that?
Baude:
Do you? So this is but-- Yes. There's a case out of Montana, uh, about this with a Montana Supreme Court effectively invalidated Montana's, uh, program, Montana's school choice program or Montana's school funding program on the, in reliance on Montana state constitution, which like many state constitutions has what's called a mini Blaine amendment, which aggressively forbids the funding of religious private schools more aggressively than the federal constitution does. And there's been a long, simmering, kind of historical scholarly argument that these amendments are all kind of infected with anti-Catholic bigotry. Uh, that had been part of the reason they were passed was because, uh, the schools at the time were basically control, controlled by Protestants and Catholics immigrants were trying to get out of them so they could have their own schools controlled by Catholics and therefore these amendments are kind of tainted with the whole, the whole thing.
Baude:
Now I will say the court has had this kind of like simmering historical debate in the background a couple of times. Uh, in the past two decades, they had a case out of Washington state where one of these amendments was in play. And the, um, had a case, uh, the past year or two from Missouri where one of these amendments was in play. And usually they end up resolving the case on kind of a more retail level, doctrinal grounds without saying, and all of these state constitutional amendments are, are tainted. And my guess is that still what's gonna happen, but it's, it's produced a lot of these amicus briefs, although many of them, if you follow this area, have been, have been written before, uh, and it does, it could be a big case.
Casey:
The thing I'll add is last time I did first Mondays, it was the Mississippi case, the Trinity Lutheran, right?
Baude:
Missouri case, yeah.
Casey:
Or Missouri case, Trinity Lutheran. Uh, and the prediction was the same thing and ultimately in that case there's all kinds of footnotes limiting or not limiting the opinions and about playgrounds only is it, you know, what, what the retail kind of, uh, distinguishing the question I think for this case is how much of that can you do before you just have to like say like there's no line or there, you know, the line is not what it is. It's not about a park versus school. Right? And if the court keeps pushing the line, they might have to just say it.
Audience:
Oh, thanks. I want to ask, I want to ask about the Court and the Court's trajectory. When when John Roberts became chief justice, there was, in the first few terms, there was some talk about the Court taking more business oriented cases or more cases that were relating to commercial activity. And there was some thought that this was a trend in the nature of the jurisprudence that we were going to see coming out of the Roberts Courts. And now we've seen more changes in court personnel. Now we have Justice Gorsuch, we have Justice Kavanaugh. Is this still part of the trajectory of the Court? Are we seeing a larger, uh, rate of cert grant in, in cases that are related to commercial activity and maybe a little bit away from some of the more traditional public law areas?
Casey:
So, you know, I think yes and no. Again, the last time I did first Mondays, there were a lot of business law cases. There was a really big bankruptcy case. There was a securities insider trading case. This year there's, there's not, but it depends on how you define it. There's a lot of, there's a copyright case, there's a bunch of IP cases there. There is, I think, I guess the bigger trend is procedure cases. So this term there are really interesting cases about private civil procedure, right? Which is ultimately going to affect the kind of private commercial cases. There's a bankruptcy case, but it's really a procedure case. There's quick cases about issue preclusion. This case is about final appeals. And I do think over the last few years, the Roberts Court has taken a lot of civil procedure cases. Not as many as you might have predicted as the pure business law, but in the IP and procedure area they have, which I think then indirectly has that same trend and same effect.
Baude:
Uh, you know, that all seems right to me. And I think, I think IP is another good example of this. I, I, my sense is so, so you see a little bit of this, there are sort of the threshold to get the Court interested in a, in a complicated civil procedure case, it's probably lower than it used to be because there are more justices who understand the importance of that issue and who can say, Oh, you know, I see why we need to get into this, rather than having their eyes glaze over. Um, but I think the Court is also still ultimately hostage to the lower dockets and the lower courts and the litigants. And you know, another trend, an independent trend, is the rise of Supreme Court clinics, which bring incredibly good and well counseled cert petitions to criminal defendants, immigrants, civil rights plaintiffs, not the traditional business law plaintiffs, but who still have some cert-worthy issue there that previously would have gotten lost in an overworked lawyer's, uh, you know, sort of harder to follow a petition and now are suddenly right there in front of the Court and they have a hard time turning them down.
Baude:
So I think the other lesson may be that, you know, you can ask the chief justice when he, when he takes office, you know, what he wants to accomplish with the Court and you know, he only has a limited ability to control that, uh, given all the cases coming in.
Audience:
Um, so a few years back, uh, Chief Justice Roberts, um, sided with the liberals, I guess you would say, on the Obamacare case. And it was speculated that his heart, his heart and his prior history was really with the conservative bloc, but he thought the stature of the Court was at stake and the integrity of the Court. And he went out of his way to not invalidate this important legislation of the president. And then, and I can't remember, you'll tell me what it is, this year there was a similar case where he seemed to go as conservatives would say the other way. So looking ahead, is there any chance it will at some point become a hardcore conservative bloc of five or will Roberts continue to be a quasi-Kennedy swinging one way or the other?
Casey:
I mean, I'll give a short answer and then get it to IB. Two cases don't make a Kennedy, right? Like, I do think it is fair to say there is a hard, a hard bloc of conservatives, uh, that wasn't necessarily true when you had Kennedy or O'Connor. And, and if Roberts.. You-- the two cases are like extreme. If you've take that to be his, his motive, which I'm not sure is right, but people claim it to be true. Um, those were extreme cases where, where you, the, the outcome is really this theme. The pragmatic outcome would've been very problematic. Most cases don't have it that extreme. And so even if that's his motive, I don't think you're going to get it massively affecting the docket.
Baude:
Uh, yeah. So I, uh, have no inside knowledge about what happened in the Obamacare case despite the many people who claim to have inside knowledge and claim to have leaked it. But I will say I find it completely implausible to think that the chief justice would have done something other than vote for the side he thought the law required out of any kind of like broader stature of the Court. I, I cannot imagine it. I cannot imagine that he would think the stature of the Court is helped by anything other than the justices trying to honestly apply the law. Uh, you know, he got teased for the umpire metaphor, uh, at his confirmation hearing. But I, I would be shocked if he weren't just trying to be an umpire in each of the cases and just genuinely found the case a little trickier than a lot of people did.
Baude:
I also saw, I'll say, so, you know, one of the things we're discovering is what is the Supreme Court like without Justice Kennedy? Uh, what, what's happened now that Justice Kennedy has gone? Does this mean that that Chief Justice Roberts is the new Justice Kennedy? Uh, people briefly wondered is Justice Kavanaugh going to be the new Justice Kennedy. I think it's been really healthy for the Court so far, they've only had a year, to not have one person in that role. Uh, no, no offense, Justice Kennedy. Uh, but last term, uh, by my count, all five of the so-called conservative justices, I don't like the label, but all five of them were the one justice to crossover and form a majority on different cases. You know, Justice Kavanagh in an antitrust case and Justice Alito in a nondelegation case and Justice Gorsuch in a, I think, a criminal case and an Indian law case.
Baude:
And Justice Roberts in a census case. And I think that's really healthy for the court to have, not just like one justice who's in play, but actually a lot of justices who, depending on the arguments and the area, you know, sometimes don't vote the same way. And now I think over time we'll see probably different areas and different arguments for different kinds of justices. We have started to see the emergence of the Gorsuch brief where people try to write a really textualist amicus brief to appeal to Justice Gorsuch, and the Thomas brief, people try to write a really original brief to appeal to Justice Thomas, and the Roberts brief where people fill it with quotes from Henry Friendly because they think maybe that's what, uh, Justice Roberts wants to hear. And so on. That's a much healthier dynamic. I hope it continues. So I hope it continues to be true that the justices surprise us a little bit and it's not always sort of one person sitting there with eight other people staring from, from either side. I think it was not so far.
Audience:
In that regard on the um, like sort of outside influence arguments that sometimes are perceived, there was that amicus brief that was signed by some democratic senators. I think it was in the Second Amendment case, right? The New York case that many have perceived as a threat. You think that's going to have any effect on the, on the court or you'll see any response and any opinions to that?
Baude:
Yeah. So this is pretty cool. Who don't know, right? So there, there are the federal court scholars who wrote the brief. I thought it was so obvious, it didn't need to be filed saying, this case is, uh, this case is moot. And then there's the, uh, I think what may, I mean it's too soon to tell, but there's a risk what's going to go down in history as the least helpful amicus brief, the court has received, uh, it should be called, I don't know Latin well enough to know, an animus, the, the enemy of the court brief, more or less saying if you guys don't back down, you know, we're going to pack the court and do other terrible things to you. Written by Sheldon Whitehouse and other and other senators. Um, you know, I think there's a risk that it will have an effect, although the opposite of the effect that the authors purport to want.
Baude:
I mean, so this is in, in Paul Clement's briefing, this is the brief he's playing up. He's saying, look, if you guys declare this case moot, which it is, uh, the, they'll just get the message you guys are cowards. Uh, they can push you around so you better stand up to them by keeping jurisdiction in this moot case, uh, to show that, to show that you can't be pushed around. If the court keeps jurisdiction, I think this'll be one of things we'll worry contributed to it. Uh, again, hopefully if they keep jurisdiction, it'll be purely cause they care a lot about the technical arguments about whether you have the right to go to Starbucks on your way to the gun range or whether that's like an important part of the relief that was requested in the complaint or not. But I worry that that's not true and that some of the sort of attempts to politicize the Court are gonna are gonna have an effect, even if it's a perverse effect. Seeing none.
Host:
Well, thank you, Professor Baude and Professor Casey.
Audience:
[applause]
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