Three judges from the Third Circuit Court of Appeals joined host Jeffrey Rosen for a live panel held on September 17, Constitution Day, the anniversary of the signing of the Constitution. They shared an inside look into some of their rulings that then became blockbuster Supreme Court cases. Judge Cheryl Ann Krause discussed her ruling in the case involving a cheerleader who was punished for a Snapchat, Mahanoy Area School District v. B.L. Judge Stephanos Bibas spoke on his decision in one of the major Trump campaign challenges to the 2020 election results, Donald Trump for President, Inc v. Secretary Commonwealth of Pennsylvania. And Judge Marjorie Rendell shared insight into her decision in Fulton v. City of Philadelphia, the case spurred by the city barring Catholic Social Services (CSS) from placing children in foster homes because CSS refused to allow same-sex couples to be foster parents. The judges also reflected on their work more broadly, their efforts to find compromise among colleagues with differing opinions, and their important roles in American government.
FULL PODCAST
This episode was produced by Jackie McDermott and engineered by the National Constitution Center’s AV team with editing by Jackie McDermott. This event was booked and produced by Tanaya Tauber, Lana Ulrich, and John Guerra. Research was provided by Sam Desai and Lana Ulrich.
PARTICIPANTS
Cheryl Ann Krause is a judge on the U.S. Court of Appeals for the Third Circuit. She previously worked as a partner at a multinational law firm where she specialized in white collar criminal defense and securities litigation. She also has served as an adjunct professor at the University of Pennsylvania Law School and a lecturer at Stanford and Columbia Law Schools.
Stephanos Bibas is a judge on the U.S. Court of Appeals for the Third Circuit. He was previously a professor of law and criminology at the University of Pennsylvania Law School and director of the Penn Law Supreme Court Clinic.
Marjorie Rendell is a judge on the U.S. Court of Appeals for the Third Circuit. She was previously first lady of Pennsylvania and a judge on the United States District Court for the Eastern District of Pennsylvania.
ADDITIONAL RESOURCES
- Mahanoy Area School District v. B.L. (2021)
- Donald Trump for President, Inc v. Secretary Commonwealth of Pennsylvania (3d Cir. 2020)
- Fulton v. City of Philadelphia (2021)
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
[00:00:00] Jeffrey Rosen: I'm Jeffrey Rosen, president and CEO of the National Constitution Center. And welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan, non-profit chartered by Congress to increase awareness and understanding of the constitution among the American people.
Last week on September 17th, we celebrated constitution day here at the National Constitution Center. There were exciting events and panels and we're sharing one of them today on We the People. I was joined by three judges from the United States court of appeals for the third circuit, Judge Cheryl Ann Krause, Judge Stephanos Bibas, and Judge Marjorie Rendell.
They shared their insights into three major rulings. They decided last year that went on to become blockbuster cases at the US Supreme court. And they also reflected about how judges of different perspectives can deliberate and resolve their differences. You can check out more of our constitution day programming and our media library at constitutioncenter.org/constitution. We'll be back next week with a new episode of We the People. Enjoy the show.
Ladies and gentlemen, welcome to the National Constitution Center. [laughs] That is the first time I've been able to say those wonderful words for a very long time. And it is so great to see some of you in person and more of you online.
And now we culminate our daytime programs with three of America's most distinguished appellate judges. Friends, it's so exciting to share with you their light and learning. They come from different perspectives, but they are united in their devotion to interpreting the constitution. As it happens, each of them help decide on the appellate level some of the most important constitutional cases of last year, which the Supreme court ultimately reviewed.
So what we're gonna do is begin. I'm gonna ask each of them to discuss the case he or she ruled on as an appellate judge and help us understand the differences, if any, between their reasoning and what the Supreme court ruled. And after we've done that, in cases involving student free speech online voting rights and religious liberty, then we'll have a discussion about how judges actually decide cases.
So Judge Cheryl Ann Krause... Oh, let me, let me properly introduce all of you because it's just wonderful to see you. Judge Cheryl Ann Krause, Judge Stephanos Bibas, and Judge Marjorie Rendell, all great judges, friends of the constitution center, distinguished members of the US court of appeals for the third circuit right across the street.
Judge Krause, you wrote one of the most important student free speech cases of recent times on the third circuit. It got a lot of attention. We all know about it as the cheerleader who used vulgar words on Snapchat. You held that she had a right to say that, the Supreme court agreed with that result, but for slightly different reasons, tell us what was going on in the case, what you held, and what the Supreme court held.
[00:03:04] Cheryl Ann Krause: Sure. And thank you for having us here. So the case of B.L. versus the Mahanoy School District, as many of, you know, involved a, a high school student who had not made the varsity cheerleading team in her freshman year of high school. And when she didn't make it in the sophomore year and was frustrated by some other things that were going on at school, went with a friend on the weekend outside of school hours to a local convenience store where they took a Snapchat of the two of them holding up the middle finger and expressing that frustration with language, I will leave to your imagination, but F school, F softball, F cheer, F everything.
As well as a second one that expressed how you like that we have to wait a year, and no one else cares with an upside-down emoji that as, as many of you may know sort of conveys some silliness sarcasm and frustration as a symbol for that.
She sent that out to her Snapchat friends which included some students and among them some of the cheerleaders and although Snapchat in a lesson that we all should take to heart, although Snapchat is supposed to disappear and have that photo after 24 hours no longer available.
One of the recipients took a photo of the, o- of the posting and shared that with others on the cheerleading team, it got back to the coaches and the school. And ultimately they decided that as a consequence of that, that speech, that B.L. should be suspended for the rest of the school year from participating even on the junior varsity cheerleading team.
So, she with her parents brought a suit challenging that decision under the first amendment in the district court, the district court had included that, that speech was protected and that the school district's action was unconstitutional.
And then then it came before us and before us, we, we viewed this and, and I, and I'm delighted to say the panel that heard this case, so I wr- wrote the opinion, it was a panel that included my... a friend and colleague, Judge Bibas, as well as Judge Tom Ambro.
And Judge Bibas and I were the majority, we, we talk a little later about Judge Ambro's concurrence. But as we considered this, we, we looked at the first amendment case law that existed from the Supreme court to that point. And really it's about every 20 years that there has been a significant decision by the US Supreme court dealing with the free speech rights of public students.
The seminal one that I'm sure many of you have heard of, and we've all benefited from was Tinker versus Des Moines Independent Community School District dating back to the 1960s where students to protest the Vietnam war wore a black armband to school. And they were suspended for out of concern of the disruption that that would cause at school for that that, that hot button issue.
And when that reached the Supreme court there were a, a couple of things that have... over the ne- next many decades have informed the way we think about student speech. One is their statement that students don't lose their, their rights to free speech and free expression at the schoolhouse gates.
But the other is that there's an exception to that, that the court recognized where there is the... a concern of material and substantial disruption to the educational environment. And they said that can't be just a vague concern, that has to be a c- concern that is, that is specific and and, and substantiated.
So about 20 years after that, came a, a couple other cases, Bethel v. Fraser which was one dealing with a, a... an assembly where a student was... u- used... lewd an obscene speech in advocating for someone to be put on the school leadership committee and the school suspended him.
When that reached the Supreme court, the court recognized another type of exception, and that was the interest of the school in that environment within school, in teaching good manners and socially acceptable behavior. Around the same time was the Hazelwood School District versus Kuhlmeier decision where the Supreme court addressed student journalism and upheld school's ability to exercise editorial control in what it viewed as a school-sponsored expressive activity.
And about 20 years after those cases came the... a case of Morse v. Frederick, where in Juneau, Alaska, as, as the Olympic torch was coming by a a class went... in high school, went out with this principal's permission, went out off school grounds during, during the school day to watch the torch come by and in the process Frederick and some friends unfurled a banner that the Supreme court viewed and, and the school had viewed in, in choosing to suspend them as punishing the advoc- advocacy of illicit drug use. And there, the court talked about the interest of the school in health and safety of students.
So fast forward another approximately 20 years, and that's when our case came around. And looking at that series of cases, we were presented with a question where in the digital age, where there are so much that happens off-campus, but of course, because there, there is really not much boundary with everyone in their cell phones in schools between when people are, are looking at those communications and how they, they receive them, whether the test of Tinker the concern about substantial disruption coming back into the school whether that should be enough to say a school district can regulate a student's speech that is outside of school grounds is outside of school hours, didn't involve health or safety, a concern, and wasn't in a school-sponsored type of forum. This was on a private server over her Snapchat account, not school computers or a school server, for example.
And we, we decided in addressing that issue, that that test, the Tinker's test was not one that as we read the case law and understood it should authorize schools to punish student speech outside of the school, owned school, operated or school-sponsored types of activities.
And here, where there was no concerns about bullying or threats of safety. For example, we concluded that the speech was protected and that the school had overstepped its constitutional authority in suspending the student for that speech.
We didn't have before us of course a case involving things like threats of violence or bullying. But recognizing what an important issue that is in today's day and age, we, we acknowledged that in situations like that, there may well be different school interests that would allow the school to regulate off of school grounds.
F- and citing, for example, back to Morse where this... the court's concerns about illicit drug use was one of the grounds for them to authorize the punishment of, of speech.
But we also thought that the... as a general matter, it was important to have that bright line around on campus and off-campus speech. Why? Because when it comes to the first amendment and the value that it serves in our country and that the founders envisioned, it's to promote the marketplace of ideas and to ensure that students to whom that lesson is being taught that they experience it. And it's, it's not something that brings hollow in their own experience going through the school system.
So in finding that balance, that's where we chose to draw the line. The Supreme court affirmed the judgment but purported to do so on somewhat different grounds. Whether they really did or not remains to be seen.
I, I think as, as the specific cases unfold, Justice Breyer wrote that opinion and he, he declined to reject outright the idea of the substantial disruption test playing a role and recognized interests on all sides and in what some have described just sort of a classic Justice Breyer opinion, including on a podcast that Jeff had held here shortly after the decision was handed down, recognized the j- for Justice Breyer, he approaches things in a way that is very much from a common law, the slow accretion of... in the... of cases in the, in the development of the law, and laid out just a number of different interests that should be taken into account such as the role of the school relative to the role of parents.
What's called in loco parentis, as the school stepping into that role in educating students, the type of speech, where it took place, how disruptive it was for the school, how disruptive it might be for other things like extracurricular activities and a number of different factors.
And then said, looking at this particular case, the regulation of speech was not justified. And we'll see going forward, we're not going to announce any general rule other than off-campus that the school's ability to regulate speech is diminished.
[00:14:15] Jeffrey Rosen: Wonderfully described. Friends, do you know w- how privileged we are to hear Judge Krause give us a sense of these arguments? And she just told us so much and just to highlight some of the big points first. Isn't it interesting, she and Judge Bibas judges of different perspectives were united in holding that this Tinker test, which says that speech that causes substantial disruption at schools doesn't apply off-campus. They adopted this bright-line rule and they agreed about that.
The Supreme court as she said was also unanimous, all nine justices, different perspectives converged around a rule, but it was different than the one that she and Judge Bibas embraced. They said you have to balance the interest and Tinker might apply. In some cases, we could imagine maybe, or maybe not that off-campus speech might be substantially disruptive, but here it wasn't.
So they came to the same result, protecting the cheerleader, but for different reasons. And in both cases, the reasons were embraced by judges of different perspectives. So interesting.
And as also Judge Krause says, we'll see what th- what the real difference between those tests is 'cause it's possible that in practice, the Supreme court will end up agreeing with judges Krause and Bibas that it's hard to think of a situation off-campus where speech actually does cause a substantial disrupt in school and therefore Tinker may or may not apply. Thank you for that. That was really, really helpful and interesting.
Judge Bibas in addition to joining Judge Krause in this important school speech case, you last year wrote a very important decision in a case involving the voting and election. And since I can't find my constitutional reading glasses, I can't quote... Oh, here they are.
I'm gonna quote your beautiful language. I... It is beautiful 'cause it was so powerful and nonpartisan. You said in the voting case that, "And I should say that out of all of the voting cases considered by federal courts, there have been 90 of them. And in all cases, the voting claims of election fraud have been rejected."
So judges of different perspectives ha- like Judge Bibas have agreed that the claims were without merit. There are 10 that are still pending but it's a remarkable record of judicial independence in the face of executive challenge."
And Judge Bibas, you said in your decision that, "Free and fair elections are the lifeblood of our democracy, charges of unfairness are serious, but calling an election unfair does not make it so. Charges require specific allegations and then proof we have neither here." Strong, galvanizing words. Tell us about the background for this remarkable case and how you reached the decision you did.
[00:17:07] Stephanos Bibas: Sure. 2020, as you all know was a big election year. And it also happened to be the COVID year. So, most states, many states had much broader mail-in [inaudible 00:17:39] than we'd had before. States run... elect their own elections, both state and federal voting. So, Pennsylvania, the Commonwealth of Pennsylvania started mail-in voting in September.
And with these ballots, sometimes there are some technical problems with the ballots maybe. The voter doesn't sign the declaration on the outside of the outer envelope, or maybe uses only one envelope, not the second one inside it that's supposed to keep secret whose name was associated with which vote.
So anyway, there were two million mail-in votes in, in Pennsylvania last year and different county board of- boards of elections handled these votes different ways. In some of them, when they got a thin packet where they said, "Oh, the person didn't include the second envelope." They just, they just left the ba- vote alone, and then the vote wouldn't wind up counting when it had a major defect like that under Pennsylvania law.
In other counties, the county board of election reached out to the voter and said, "Hey, it looks like there's a problem with your ballot here. Do you wanna come in and fix it, vote in person, send in another ballot, et cetera?"
So there was some variation in the way that some counties did things. And Philadelphia and a few other big counties reached out to voters and maybe 6,000 or 10,000 votes, we don't know the exact number, people wound up fixing some of these. So that was one of the issues that came up in the, the Pennsylvania election.
The second one was on election night. Campaigns under state law are entitled to have a poll watcher. Someone who, who they're independe- people who watch these as the votes are being counted. And then there are campaign representatives who get to go in. No federal law requires that, but state law said, "Okay, you can have someone in there."
But it doesn't specify how close you have to be to counting the votes. And so, in some places like Philadelphia, some of the poll watchers said, "Hey, I was kept in this area, 18 feet away or 12 feet away." In other counties, the poll watchers were able to get very close to when the ballots were being counted.
Now, interestingly, these are the two things that were being complained about in the, in the suit I was involved in. The mail-in voting issues started becoming apparent in September, but there wasn't a lawsuit filed about this stuff. At least the one that was before me until a week or two after the election. So two months after they could have started complaining about this.
And so the Trump presidential campaign filed a lawsuit in central Pennsylvania saying, "Hey, we think it's unfair here that there are these differing rules." Now notice, we judges are limited to what is put in the complaint in the pleadings before us.
There... A slight correction to, to my friend Mr. Rosen's comments, there was a lot of media discussion about fraud or whether people were lawful voters, et cetera. None of that was alleged in the specific complaint before us. And as a judge, all I'm allowed to consider is what the lawyers swear to in signing the papers and what witnesses will swear to.
So, there may be media discussion about what's fraud, but my case actually was just about this. So, the campaign lawyer Rudolph Giuliani said the campaign does not plead fraud. This is not a fraud case. So the, the challenges were several. Some of them were, hey, under state law, you shouldn't have been doing this or that, but those challenges had already been rejected by earlier courts, state, and federal, and you couldn't just rehash them.
So the, the... We federal courts were only really focusing on one federal issue that was left, which is, is it unfair discrimination that in some counties they would let the poll watchers be close? And in some counties, they would reach out to voters who look like they had a problem in their mail-in ballot fix it.
Whereas in other counties, the poll watchers had to stay far away. And in other counties, the, the, the voters weren't contacted to fix their mistakes. And what we said is, "Look, the state law defines what these rules are," and if the county's reasonable county to county variation is okay, there was no allegation that any county was treating Trump votes different from Biden votes.
It's just some counties adopted a relatively forgiving, we'll let you fix these things, we'll let you come up close and watch. And other counties adopted a strict approach. And the response was that's not discrimination under the equal protection clause of the 14th amendment. Reasonable variation, states get to run their elections within broad bounds.
And if we don't have evidence that they- say they're throwing out Trump votes and not throwing out Biden votes, or they're doing things that specifically favor one side versus another, states are entitled to vary place to place. And so our court ultimately said, "Nope, you know, the other claims had previously been rejected. That one has nothing to do with the federal constitution. It's a matter of Pennsylvania law.
And for decades, Pennsylvania has taken an attitude towards if it's a lawful voter and there's no evidence of fraud that it's a fake vote or a, a, a bribed vote or something like that, the state policy is count those votes despite technical irregularities. It's not our job as a federal court to say, you've gotta change what your traditional state law approaches because Congress and the constitution have left it to the states to decide how they run their elections.
So, it actually wasn't a fraud case, even though in the media, people who didn't read things necessarily may have, may have wondered or, or heard things about it. All we were allowed to consider was what the p- what the parties swore to and pleaded and put in the case, and that wasn't charged in this case.
[00:22:52] Jeffrey Rosen: Thank you very much for all of that. Thank you for the correction, which is crucially important because as you just heard Judge Bibas say, it's all about the specific legal allegations that are before a judge. And in describing it as a fraud case colloquially, I, I didn't give you a sense of the actual legal issues Judge Bibas was considering, which are different than the legal issues that many of those other 90 judges are considering.
And one thing that's so important for all of us to learn together is that we cannot have an informed opinion about the legal issues in any case, until we've read the briefs on... heard the arguments on both sides and precisely described the arguments. And that's what these judges are helping us do. And that's why the judiciary crowned itself with glory as an independent nonpartisan branch of government in evaluating each of these 90 cases, all of which had different legal theories, judges of different perspectives, uniformly rejected them on the basis of the evidence and the law.
And of course, judges like those of us at the National Constitution Center are not allowed to have political views about the merits of, you know, who should win an election. But we can just descriptively say that it's very important in America that the judiciary showed itself to be able to evaluate these claims in a nonpartisan way. And our democracy is strong as a result of that. So thank you for that. And thank you, Judge Bibas.
Judge Rendell, you were part of, of the third blockbuster decision of this Supreme court term. It was a case called Fulton. It arose out of Pennsylvania. The, the question was whether if I've got the facts right Catholic foster services could be excluded from an adoption program for adopting kids because th- this Catholic foster services didn't allow gay and lesbian couples to adopt kids. The city of Philadelphia didn't wanna make them part of the program.
Your panel, Judge Ambro's wrote the majority opinion said they couldn't do that because a case called the Smith case says that people can't get exceptions from laws of general applicability based simply on their religious beliefs.
The Supreme court disagreed there and unanimously reversed on the grounds that this wasn't a law of general applicability. And therefore the Smith case didn't apply. Another really important, really complicated case. Help us understand what you and Judge Ambro's and your panel held, and what the Supreme court held.
[00:25:19] Marjorie Rendel: Well, as you said, this involved the intersection of, of key rights here, the rights against discrimination or the principle against discrimination and then religious freedom. And we've seen these intersections and they're gon- gonna continue to see them.
But as you said, the Smith case announced the principle that where a law incidentally burdens religion, but is neutral and generally applicable. It needs to only satisfy rational basis. That is if the government has a rational basis for this law, it, it passes muster and that incidental burden they'll just have to live with it if you will.
Well, this is a case where in the district court and the court of appeals, our court, we were following the case of Employment Division versus Smith. So, as long as the law was neutral and generally applicable, and it wasn't enacted with any anti-religious motive and there was a trial in the district court and the district court found, yes, it's satisfied Employment Division versus Smith.
And we did the same, found that it, it satisfied rational basis. And we were thinking, well, this is going to the Supreme court. And guess what? Employment division versus Smith is probably going to be overruled because it's been criticized, their voices pro and con this, this precedent.
And we do follow precedent, district courts, courts of appeals. When it gets to the Supreme court, anything goes, and they could have overruled Employment Division versus Smith, but they didn't. In fact, they followed Employment Division versus Smith, but found that because there... within the ordinance, there could be an exception granted by the commissioner to the principal that you cannot refuse to interview a same-sex couple, but the commissioner could grant an exception to that, the law was not generally applicable.
Well, this was an unusual move on the part [laughs] of the Supreme court, 'cause there are a lot of laws out there, a lot of provisions that have exception provisions, and all of a sudden they're not generally applicable. But the most surprising part was that this section abou- allowing this exception, section 3.21 was never cited or relied upon in the district court, in the court of appeals. And I could see some Supreme court law clerk coming into the chief justice and saying, "I've got it. We don't have to overrule Employment Division versus Smith. Look at this section. We can say it's not generally applicable."
Well, and that's what, what they did and the majority upheld it on that basis and said that because of this exception, the state would have to have a compelling interest, not just rational, but compelling interest in this and chief Justice Roberts wrote that it's not just a comelli- compelling interest in, you know not having discrimination, but a compelling interest in not granting the exception to CSS, which was also a bit of a novel concept.
So we have some what Justice Gorsuch- Gorsuch called a dizzying series of maneuvers by the majority [laughs] to, to fit this within Employment Division versus Smith. Justice Alito wrote a, a blistering 90 page or so [laugh] concurrence but... saying we sh- it's time to overrule Employment Division versus Smith. This country is a country founded on religion. We really need to allow religion to be, to be way up there in terms of priorities.
Justice Amy Coney Barrett wrote a concurrence saying, you know, we could overrule Employment Division versus Smith, but we haven't really thought of what the test should be. Are we going to clearly say, you know, religion is first, how are we going to balance these? We haven't thought about it. And until we think about it, we really shouldn't do it.
And Justice Breyer joined in that concurrence. And, you know, it's a very thoughtful approach. And I must say that there was some criticism of the city for not focusing on the Employment Division versus Smith precedent more in, in its arguments, but I think had, had they done so, it might have been a trap because then the court might have been thinking more, okay, we're gonna overrule it and how do we do it? But they hadn't really given much thought to that.
And I think it- it's interesting that the Supreme court in not overruling precedent really wants to think of the ramifications. And okay, if we, we are rejecting this test, what are we gonna say to the people that the test is? And I think that shows, you know, a great deal of thought on their part, but the next case that comes will no doubt offer suggestions as to exactly how these rights should intersect.
And we had this in Masterpiece Cakeshop also the, the fact that we have religion and discrimination. There, the court found that the it was racial or anti sexual orientation anonymous that was the motivation for the ordinance there. So they could pin their hat on that. But now they have to come up with some way to really view the intersection of these rights. And it's tough. It's very tough.
[00:30:21] Jeffrey Rosen: It's just fascinating to hear you talk about that case and that... summing it up as it's tough seems just right. And as you describe it, it seems like you and the Supreme court are doing something a little different. Yo- your panel is faithfully trying to apply Supreme court precedent, as you had it, you had the Smith case and you said that this was a general law of mutual applicability and the Supreme court, as you said, maybe some law clerk or someone else just came up with this kind of way of avoiding squarely confronting Smith 'cause they had to think about the way overturning it would look reserving to another day just as they did in the speech case as Judge Krause put it exactly what the new precedent would be and how far it would reach.
[00:30:59] Marjorie Rendel: Yeah. One point on on Cheryl's case you know, the, the panel in our court, Cheryl and Stephanos gave some clarity, gave some clarity in school, out of school. And I do work a lot with teachers and administrators and they've gotta make these decisions. Do we suspend? They've gotta make these on the dime. You know, are we gonna suspend a student or not?
And if there's some clarity given, it helps. When it got to the Supreme court, Justice Breyer put in an awful lot of factors that probably, you know, arguably should be looked at, but f- for school administrators, they're scratching their heads. "Okay, on a dime, we've gotta figure out, okay, how does this balance here? What, what rights are there? And, you know, what's the ramifications?" And do a lot of, ah, of stuff that we do on, you know, a moment's notice.
So I think one thing that the courts can do and that we should do is... we should strive for, is some clarity and give some direction, you know, in our opinions. And I think that, I think our opinion [laugh], and it's an opinion of the court, which I'm proud you know, did, gives... tr- tried to give some clarity.
[00:32:07] Jeffrey Rosen: I, I, I think so. And if you don't mind another round, you know, I'm not allowed to have political opinions, but I can have judicial opinions and I like your test too. It was very [laughs] clear and it protected free speech and it's gave guidance to lower courts.
So, and I bet that some of the justices did too. So, well, how do you account for why the court didn't adopt it? Judge Rendell said, well, the... it sounds like the Supreme court really has to balance more interests and compromise. Are they just doing something else? And they couldn't manage to get nine votes for clarity or what- what's going on?
[00:32:40] Cheryl Ann Krause: Oh, I thi- you know, I think one of the most striking aspect of Justice Breyer's opinion is that it has something in it for everyone. It talks about the importance to schools, of being able to promote their interests in things ranging from manners to marketplace of ideas. And it talks about the interests of students in having s- an understanding of of what speech is protected in particular the court noted political and religious speech.
But the concern about clarity, we- we've been talking about it from the perspective of, of school administrators and as perhaps my colleagues as well, have had an experience shortly after the opinion being issued of a middle school principal saying, "I, I read the Supreme court's decision and I have no idea what I'm allowed to prohibit and, and not. What can I punish and what, what can't I?"
And, of course, I can't give legal advice. We're all gonna be figuring it out in the courts case by case, but for the school administrators, it's going to be case by case with each student that's coming forward.
But the flip side of that is the concern about students and their... the clarity to the students about what they can say off-campus without risking that mark on their record of having a suspension. And when... as I said, when it comes to the first amendment, that concern about chilling speech, about students and any citizen holding back on protected speech because of the fear of consequences is, is a really troubling one.
As was clear with the questions at argument though, the justices were coming at this from many different perspectives. Some of them from their personal experience with children, some of them thinking about bullying and the threats of violence and shootings in schools and how are we, there has to be a way to prevent these.
And Justice Breyer wrote an opinion that, that all nine justices we're able to join where it has, as I said, something for everyone in it to, to serve that interest.
It does, at the end of the day, say this speech was protected. So it draws a line there. It does say that off-campus speech is th- the, the school, school districts have a diminished interest at regulating off-campus, which gives a, a little bit of guidance.
But otherwise it, it, it will end up case by case. So it brought the court together at the very end of the term. And this was one of the last cases so that even with time pressure they also... they needed to to, to pull a majority together. And it, it provides some limited guidance, but for both administrators and students, I think we'll pose some challenges i- in a practical way going forward.
[00:35:54] Jeffrey Rosen: Well, indeed. Well, let us now pull back our lens to this broader question of judges and politics. And what's so striking about all of three decisions we've been talking about is they are bipartisan decisions, both at the appellate level and at the Supreme court level, you had judges of different perspectives like judges Krause and Bibas, and Rendell converging around common outcomes. And both of those Supreme court cases, the religion and speech case were unanimous.
Justices Breyer and Justice Amy Coney Barrett have in the past week been going around the country saying, "Don't view judges as politicians in robes." That's not what we do. We are guided by our judicial methodologies, not by our partisan politics. And that's the way judges make decisions. Are they pragmatists or originalists or do they care about tradition or prudence? Not do they wanna help one party or the other.
And at the same time Justice... Judges Krause and Bibas, you're about to... you're, you're working on an article together with a similar theme. Don't view us as Obama and Trump judges, that's not what we do. We decide cases based on the law and methodology, not on politics. So Judge Bibas, what... you're working on this piece. So, tell us what your argument in the piece is and why we should not view judges as, as politicians in robes.
[00:37:18] Stephanos Bibas: Sure. I think it's regrettable that, you know, the media, when they mention us often will say, the first thing they'll say is, "Judge Krause was appointed by President Obama or Judge Bibas was appointed by President Trump."
And one thing to note is that's a, a, a very poor proxy for how we rule, in most cases. I think people... some people reported with surprise. Judge Bibas wrote an opinion that ruled against the president who appointed him, but that's because that's where the law took me.
My, my boss is not the president who appointed me. My boss is not the chief judge of my court. My boss is this... I, I took this oath that's framed on my wall that says my boss is the constitution of the laws. And I'm a, I'm a servant, a public servant to that. So I think the, the election case is just one example of that.
Another thing you don't see is that we agree in almost all of our cases. I mean, the sliver that make it up to the Supreme court are that teeny tiny fraction of cases where there are disagreements around the country that only the Supreme court can resolve. So I think the press understandably wanna make it into an interesting horse race, but that's not representative.
And then the third thing is when we do disagree, I mean, for the, the speech case, the cheerleader case, a great example of how we came into that case. We had somewhat different perspectives when we went in, I had some ideas, and then now, my friend Judge Krause listened. And as we were discussing it, it became clearer to us. We thought it was a useful time to clean up the law now that we were 20 years into the digital and social media age.
And so, that process, even if it starts out with disagreement is a productive process, a process of learning from one another and a process where when they are disagreement, the disagreements, usually in my experience are not along political lines.
I mean, younger judges who are more social media savvy look at some of these cases differently from older judges, judges who've been trial judges have taught me a lot of things because I never had the benefit of being a trial judge.
And these kinds of conversations we had, the disagreement when it starts out that way is often very productive in getting us in this conversation to a place where either we wind up agreeing, or if we disagree, we disagree for these principled reasons. And we've learned from one another and we've usually at least very much narrowed the remaining area of disagreement.
And none of our conversations in the court are along the lines of, you know, left, right Democrat, Republican. That's not how we see ourselves. If that's how I saw myself, I'd quit the job and go run for legislature or something. That's, that's ah, it's, it's very important.
The final thing I'll say is we take for granted how exceptional this is in the world and in history. The most interesting thing I saw after that election opinion, I got a ping 'cause my name showed up in articles and one of them was from Uganda.
And in Uganda, there was an editorial that said, "You know, this is amazing. Our judges would never rule against the person who appointed them. If they did, they'd be, like, arrested or thrown in jail or something." And, like, I could do this and nobody showed up at my door, nothing happened.
It's just, it's just another day under the constitution. And the fact that our politicians obey when the courts rule against them and leave office when they're supposed to leave office, we forget that the rule of law is a very precious thing to preserve in this country. And so many people around the world look at us and think if, if only we could have that kind of stability and rule of law in courts, it would be a wonderful thing.
[00:41:04] Jeffrey Rosen: Wow. What an example. We'll all remember that on constitution day. Unlike in Uganda, someone doesn't show up at your door, if you were a judge and you rule against the president and that is a very significant achievement for American democracy and into something to be grateful for on constitution day.
Judge Rendell before I ask Judge Krause to chime in, I, I, I wanna ask you the kind of devil's advocate question. M- maybe that's the way it works at the appellate court level. And I'm eager to hear if you find it does work in your experience as a, as a, as a wiser judge, a judge of [laughs] a different generation.
[00:41:38] Stephanos Bibas: [laughs]
[00:41:39] Jeffrey Rosen: But but I, but I, but, but when Justices Barrett and Breyer have been going around the country, lots of folks have been saying, you know, "Wh- what, what are you talking about?" You just had this incredible disagreement in the Texas abortion case, which Justice Breyer said was very, very, very wrong. Justice Sotomayor in the dissent called it shocking and essentially accused the majority of being lawless and refusing to hear the case. So basically, do you think th- that this nonpartisan model actually does apply at the Supreme court or, or, or the justices fooling themselves?
[00:42:10] Marjorie Rendel: Well, you know, nonpartisan, we are all a product of our background and, and our views, our beliefs and things that have molded us and we're all different and we all have different perspectives. I- I'm not sure that, you know, saying with someone is a, you know, originalist or, you know, whether that's really determinative.
I, I will say at our level, court of appeals and the district courts, we are bound by precedent and it's our own precedent and the Supreme court's precedent and Justice Alito in his confirmation hearing said that 96.9% of the cases that he decided on the court of appeals were if not squarely controlled, certainly governed to a great extent by precedent.
So, the fact that we agree is attributable to somewhat to the fact that we're all following the precedent. Now we may see precedent differently. So that's fine. When you do get to the Supreme court, as Sandra Day O'Connor said, "They're the puzzles." They are these intersections of, you know, anti-discrimination and really these tough, tough issues.
And those are the things that keep judges up at night. People say, "Aren't you sorry you're not a Supreme court justice?" So I say, "Frankly, I don't know if I would want their job. It is heady the responsibility they bear." And at, at the end of the day, and at [laughs] the morning when they wake up, they have to find a way through these puzzles.
And how do they do it? They call on principles that, that they adhere to, whether it's a principle like Justice Alito, who believes that religion is really, really foremost in this country, or someone else who believes differently. You have to form your opinion somewhere. And it's not a political opinion, it's the product of who you are.
Justice Alito was a prosecutor. When he had cases on our court, he and I predictably viewed things differently. And of course, I had been married to a man who was a prosecutor. So maybe you'd say that I would view that that way too, but I was perceived as liberal. And in fact, a lot of the cases, if he and I were on, we would disagree.
Now, is that because, you know, he was appointed by someone and I was appointed by, [laughs] you know, a Democrat? No, it's the way he views things. But everybody wants to pigeonhole. And the media is great at this. It just putting us in a little box. It makes it so much cleaner. Oh, there's... And they're in the Republican box and she's in the democratic box. No, no, no. I'm not in a box.
You know, I'm, I'm a product of 73 years [laughs] of experience, experience as a district court judge, which I had, which, which neither Judge Krause and Judge Bibas had. So on these panels, I will be informing what abuse of discretion is 'cause I sat there and I abused discretion or didn't and had to really think about what it was. But we're all products of our, of our background.
So, this partisan model, and I think i- in some ways, I think we need to explain our opinions really clearly and say, you know, we are following precedent, and that's what we are doing. And maybe the Supreme court needs to explain itself clearly.
In fact, in that Texas abortion order that was issued by the court, based upon who had been sued was bizarre. The defendants that were, that were sued, they weren't going to enforce this law. It was clearly a principle that could be adhered to that they did in saying, "No, we're not, we're not gonna say this because we don't see that it's, it's really not ripe. It's not appropriate."
They did take pains in there to say, "This has nothing to do with the [laughs] constitutionality." You know, obviously, the, the ones who descended against it said, "You need to stay this because it's basically unconstitutional."
But, you know, the media didn't pick up on the fact that the court said, "This is not a ruling on constitutionality. It's based on a Juris Prudential principle to which we adhere." So you know, I think that we need to explain ourselves better, but I think the media needs to...
And p- the problem is the, the media is a, you know, 24/7, you know, media. It's not like newspaper reporters who focus on these issues. There used to be, now they're all over the lot. And they, they don't focus on, on getting it right. They focus on selling the, you know, getting the advertisement for the, and selling the selling, if you will.
[00:46:28] Jeffrey Rosen: That was an incredibly powerful answer. And you [inaudible 00:47:22] really deep, which is that judges don't decide based on partisan politics, they decide on who they are, and what are their basic principles? Are you a prosecutor? Are you law and order? What are your basic beliefs?
And that's... it's a subtle difference. It's not just judicial methodologies, you said. It's not just, are you an originalist or a living constitution, it's who are you? What are your basic beliefs?
Justice Breyer gave a version of that answer. He joined one of our constitution 101 classes in the spring. And he said, "It's all about the methodologies." And I said, "But sometimes it looks like politics." And he said, "Well, if you really press me, if I really have to be honest about it, I guess I could say judges are moved by their political philosophies. Are they a Adam Smith capitalist or a Chairman Mao socialist?"
So maybe that's a bit of a version of, it's who you are, what are your core beliefs. But the interaction between political philosophy and core beliefs and methodologies is difficult to articulate. And as a law professor, I have a hard time doing it. And that's why it's so interesting to hear each of you as judges. Stephanos, a, a quick word, and then we'll have... let Judge Krause have the last one.
[00:47:34] Stephanos Bibas: Sure. If I could just offer-
[00:47:35] Jeffrey Rosen: Yeah.
[00:47:35] Stephanos Bibas: ... a, a friendly amendment, I, I think even if people have these philosophies or approaches, we, we, we should and do struggle as much as we can to, like, make sure that we're, we're trying to do this by the book, by the law as much as we can. And I don't know how many times I've sat with people who say things like, you know, "I really wish I could rule for this party, but you know, the law is the law and that's that."
And so, don't get the view that even if this is in the background, like coloring the way that people look at cases a little bit, that that's what's driving the train. I mean, I think we all understand that our job is not to let that drive the train. Our job is to just take each case and try to apply the law as seriously as we can. And in the very close or very hard cases, I don't doubt. You know, we're human beings, but we're, we're self-consciously trying not to let that be what decides the case.
[00:48:36] Jeffrey Rosen: Fascinating. Judge Krause, the last word in this wonderful [laughs] discussion is to you. And I know we're gonna reconvene it 'cause it's so illuminating. Help our friends understand, for you and for the Supreme court, what is the relationship between the law, the methodologies, and who you are and how do you balance all of it?
[00:48:54] Cheryl Ann Krause: Well, I agree wholeheartedly with what Judge Bibas just conveyed. We decide things based on principle, not on personal preferences, and not based on political agendas.
Our, our... The principles that we are bringing sometimes legal, sometimes other principles from our experience in life, but they're, they're principles. And because we are... we, we share most of those principles around the law, our decisions on the courts of appeals are more than 90% unanimous.
And, and keep in mind just to quantify what, what you were hearing about in, in the introduction to, to this part of the program, the Supreme court has been hearing 70 to 80 cases a year. The courts of appeals, the federal courts of appeals are hearing approximately 50,000 cases a year.
So, what, what is getting to the Supreme court is a handful of those cases. And even on the Supreme court, 40% of the time, they are entirely unanimous. And the number of cases where it's really divided, those five, four cases that, that tend to make headlines, those end up being about a quarter of, of the cases that they have.
That's actually remarkably low, when you think about what has been distilled to be presented to them i- in their docket. As Judge Randell was saying, these are the hardest cases and where there has been disagreement already among the courts of appeals to, to reach the Su- the Supreme court.
I, I also wanna add, in our disagreements and this is... was demonstrated in the discussions that we had a- as a panel, as, as Judge Bibas referenced, we, we listen to each other. We... when we disagree, we, we come to that disagreement, if that's what ultimately prevails, if there is even a dissent after much dialogue and thought and deliberation.
And it's because of that, that, that respect that we have for each other's views in disagreement, I think that we reach that more than 90% of the time being unanimous because we listen. And that kind of respectful disagreement, disagreeing without being disagreeable, it- it's something that the judiciary is perhaps unique among [laughs] the branches in, in doing at least in recent times. But we do do that and often behind the scenes so the public may not see the extent of our discussions behind, behind the scenes.
What they do see are written opinions. And our written opinions we, we also try very hard there because we recognize there's the public, seeing what we do and what our branch represents and can model. We try hard there too, to be respectful in our, our recent res- our, our, our written disagreements.
And why do we have that collegiality? Well, the thesis that I'll put out to you and that is really a driver as Judge Bibas and I have been putting together our thoughts in, in writing on the subject is that we are united in our fundamental goal. We are united in upholding the constitution and the rule of law.
And when you share those fundamental values, you can bring people together from all different walks and you can be effective in your mission. Our United States military bringing people from all over the country, all different perspectives, all sorts of different beliefs and backgrounds, and they get the mission done.
And the- the judiciary works very hard to do that as well. Keeping in mind, we are not in our jobs, we are not D's and R's, we are A's. We are Americans and we are upholding our constitution and the rule of law.
I, I hope sincerely that that will be a model that can as we move forward, help to bring together our... both our legislature and our country in recognizing what we stand for under this genius of a constitution and remarkable system of civil liberties.
[00:53:45] Jeffrey Rosen: Wow, we are not D's and R, we are A's, we are Americans. And if we are united around a shared mission, there's nothing we cannot achieve together. It is... There could not be a more eloquent and true statement of the principles of the constitution on constitution day. Thank you for that, Judge Krause, thank you, Judge Bibas, thank you, Judge Rendell.
You're modeling by this conversation, what it means to have a civil dialogue, what it means to agree and disagree without being disagreeable, and what it means to deliberate in the common good, which is the essence of constitutional government. It's such a privilege to convene you. Look forward to many more convenings. Please join me in thanking our panel.
[00:54:29] Marjorie Rendel: Thank you. Thank you, [inaudible 00:55:38].
[00:54:39] Jeffrey Rosen: Today's show was produced by Jackie McDermott and engineered by the National Constitution Center's AV team with editing by Jackie McDermott. Research was provided by Sam Desai and Lana Ulrich.
Please rate, review, and subscribe We The People on Apple Podcasts and recommend the show to friends, colleagues, or anyone anywhere who is eager for a weekly dose of constitutional illumination and debate. And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity, the passion, and the engagement of people from across the country who are inspired by our nonpartisan admission of constitutional education and debate.
You can support the mission by becoming a member at constitutioncenter.org/membership, or in honor of constitution day, give a donation of any amount to support our work, including this podcast at constitutioncenter.org/donate. On behalf of the National Constitution Center, I'm Jeffrey Rosen.
