As guest Ilya Shapiro put it, “If it’s June/July, we’re talkin’ SCOTUS.” We review the 2018-19 Supreme Court term and explore the nature and future of the new Roberts Court and the Chief’s newfound role as the swing justice. Topics include the partisan gerrymandering case, the differences that emerged between Justices Gorsuch and Kavanaugh, and the future of the administrative state at the Court. Ilya Shapiro of the Cato Institute and Leah Litman of the University of Michigan Law School join host Jeffrey Rosen.
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PARTICIPANTS
Leah Litman is an Assistant Professor of Law at the University of Michigan. She previously taught at the UC Irvine School of Law, and in the Supreme Court Litigation Clinic at Stanford Law School. She clerked for Justice Anthony Kennedy and has worked on numerous Supreme Court cases including Whole Women’s Health v. Hellerstedt. Leah is a host of the new podcast “Strict Scrutiny” about the Supreme Court and the legal culture that surrounds it.
Ilya Shapiro is the director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute and editor of the Cato Supreme Court Review. He has filed numerous amicus briefs at the Supreme Court on Cato’s behalf. Before joining Cato, he was a special assistant/adviser to the Multi-National Force in Iraq, and was an attorney in private practice.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
Additional Resources
- Department of Commerce v. New York (2019)
- Kisor v. Wilkie (2019)
- Rucho et al v. Common Cause et al (consolidated with Lamone et al v. Benisek et al) (2019)
- United States v. Davis (2019)
- Knick v. Township of Scott (2019)
- Franchise Tax Board of California v. Hyatt (2019)
- The Constitutional Stakes of the 2020 Election – episode of We the People podcast
This episode was edited by Greg Scheckler and produced by Jackie McDermott. Research was provided by Lana Ulrich and Michael Boyd.
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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.
Jeffrey Rosen: [00:00:00] 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, nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. The supreme courts 2018 to 2019 term ended last week, and today on We the People, we will review the most consequential decisions of the term and examine the nature and future of the new Roberts court. Joining us to explore this crucially important question are two of America's leading experts on constitutional law, great friends of the podcast, Leah Litman is assistant professor of law at the University of Michigan. She previously taught at the UC Irvine school of law and in the Supreme Court litigation clinic at Stanford law school. She clerked for justice Anthony Kennedy, and has worked on many Supreme Court cases including whole women's health versus Hellerstedt. Leah's hosted the new podcast, Scrutiny about the Supreme Court and the legal culture that surrounds us. Leah, it's great to have you back on the show.
Leah Litman: [00:01:10] It's wonderful to be here. Thanks for having me.
Rosen: [00:01:13] Ilya Shapiro is director of the Robert A Levy center for constitutional studies at the Cato institute and editor of the Supreme Court review. He's filed many amicus briefs at the Supreme Court on behalf of Cato and is a returning champion on We the People. Ilya, it is always wonderful to have you back on the show.
Ilya Shapiro: [00:01:32] Good to be on. If it's June, July, then we're talking SCOTUS.
Rosen: [00:01:36] We certainly are, and let us jump right into it. The term ended with two blockbuster cases, the court by five to four votes declared that partisan gerrymandering is a political question that is nondecisionable, and at the same time, at least temporarily refused to allow the Trump administration to add a question about citizenship to the census. Leah, chief justice John Roberts was central to both of these decisions. What do his split votes say about his view of the court's institution legitimacy and his role as the new swing justice on the Roberts court?
Litman: [00:02:15] I think they underscored what you just suggested. We are now living under the Roberts court. Chief justice Roberts is the new median voter on the court. I wouldn't call him a swing justice 'cause I think his views are very clear and he is definitely still a conservative justice, but what his votes in the gerrymandering and the census case suggest is there is a limit to what he is willing to do to reach a particular result. The census case really tested the limits of deference to agencies, and the chief was unwilling to allow the administration to allow the citizenship question on the record they gave him, which was not particularly favorable to the agency, given that the agency had said our only rationale for doing this is to better enforce the (inaudible) rights act, but all of the evidence that kind of came out during the trial, but also in the administrative record, and then after the trial suggested other.
Rosen: [00:03:05] Ilya, was chief justice Roberts correct in your view to take the institutional legitimacy of the court into account in his decision in the census case? What do you think of the legal reasoning he used and what do you think of his role at the center of the new Roberts court?
Shapiro: [00:03:24] Well, I think judges, and especially justices, justice included should only take legal theory into account. Statutory interpretation or constitutional theory, what have you, these extra legal considerations, call them small P political, call them institutionalist, call them trying to be a minimalist, I think that's extraneous. I think that detracts from what the proper judicial role is, which is as John Roberts said at his confirmation hearings, to call balls and strikes, that is not that it's as simple as calling balls and strikes, but it's to apply how you think about the law and let the chips fall where they may. Let the results of the cases fall where they may, so I for one am frustrated with John Roberts when he does something other than simply vote or write what the law should be in a given case. What's interesting is that he's supposed to be the median vote. The first time we had the chief justice in that role I think in 50 years, but this term, the new justice, Kavanaugh was actually in the majority more than Roberts, 91% compared to 85. Now, I think that'll kind of settle in. Those two are close together anyway, but we did see certainly the last day of the court, the last week of the term, that Roberts was taking it into himself to decide as little as possible and defer as you said.
As far as the census case goes, I think there's a good parallel to the travel ban where there's a big difference in how courts did and how I think the Supreme Court would have treated travel ban 1.0 versus 2.0 when you fully lawyer everything up and get all your ducks in a row, it's a very different result than when you kind of have a ham handed attempt to pull one on the court, and that just, he sent it back and over the course of the summer I think we'll see more process with potentially even an emergency hearing of the Supreme Court on whatever new rationale or justification the commerce department might come up with.
Rosen: [00:05:28] Leah, Ilya made a strong point. He said the chief and other justices should only take legal considerations into account and these institutional ones are not appropriate. Do you agree or disagree? Say more about just how central Robert's concern about institutional legitimacy will be as long as he remains at the center of the Roberts court?
Litman: [00:05:52] Sure, so two points on that. First, with respect to the census case in particular, as Ilya was suggesting, the census case arrived at the court on kind of commerce department's first poorly constructed draft on an attempt to add a citizenship question without its justifications fully flushed out and it's rationale really kind of unmoored from the agency's process that underlie it, and so it's not that the chief was necessarily thinking about the institutional legitimacy of the court as a reason to invalidate the citizenship question. It's the fact that the addition of the citizenship question was so obviously unlawful for some of the reasons he gave, namely that the agency's rationale didn't line up with its actual decision making process, such that allowing that legality or illegality rather would have undermined the legitimacy of the court, so it's not that the chief was saying oh, I need to kind of side with both wings of the court and reach a minimal decision in order to further the institutional legitimacy of the court, it's that upholding this particular obviously illegal policy, in my view, would have greatly undermined the legitimacy of the court, and so I think that that is a very different kind of institutional legitimacy calculus, that the kind that Ilya is referencing.
That being said, I do think that there is some role for institutional legitimacy and other kinds of considerations rather than the kind of abstract legal theory questions that Ilya is referring to. You know, the Supreme Court is an important institution in American society, and part of its power and part of its legitimacy derives from some sort of minimal acceptance of its ruling. There ae some sort of decisions the court could reach that would be so substantively illegitimate that the court would no longer have a voice and it would undermine its authority, so sometimes people will point to the example of Plessy versus Ferguson or Dred Scott. If the court reaches those decisions that are so substantively unjust and intolerable, well that's not an authority that the court can claim anymore, so I do think that there is an admittedly very narrow space for the kind of institutional legitimacy considerations that Ilya suggests. I think rightly should be generally not the court's primary rationale.
Rosen: [00:08:15] Ilya, help us understand how the other justices buy into the chief's vision of institutional legitimacy or not. The chief voted with the liberal justices something like four times in four to five cases in the past year and a half. The number was similar in the previous 10 years, so he's clearly ramped up his willingness to side with the liberals to avoid really contested decisions. Tell us more about Justice Kavanaugh's decision to join the chief in some of these efforts at avoiding five to four splits and how that contrasts with the attitude of Justice Gorsuch?
Shapiro: [00:08:51] Well, I think the statistics you just mentioned included what we call the shadow docket, that is decisions on emergency motions for stay, certain other kinds of rulings that can be high profile but aren't in cases that after full briefing and oral argument. This term on the (inaudible) docket, the full briefing and argument, there was only one time where it was the chief plus the liberals against the four others. Gorsuch however joined four times with the liberals against the four other conservatives, and overall there were eight such times where there was the four liberals plus one of the conservatives versus the others, and eight times where it was the five conservatives versus the four liberals, and four times kind of a heterodox mix, so I don't think it's necessarily the case that Roberts is always trying to join him, or Roberts plus Kavanaugh in kind of a six, three or something. It is the case that especially in a term that has relatively few blockbusters, in the senses of gerrymandering (inaudible) , I think the highest profile, and at the end of the day compared to other things we've seen in the last decade, they weren't that groundbreaking either.
I think some of the dynamic that you saw when it was an eight justice court, when it would be Roberts trying to get together with maybe Kagan, maybe Breyer to hash out a central position, maybe we'll see more of that kind of six, three or seven to two on different issues. We saw that in important cases like the Tennessee wine, the regulation of in state alcohol businesses, we saw him doing something like that in Kaiser, the administrative state case where he didn't necessarily join the substance of justice Kagan's plurality opinion, but also wasn't willing to throw out the precedent altogether in that case, kind of we're going to be getting towards that, but I think he is striving mightily, not always successfully to make the courts speak with more of one voice, so the 25 to four decisions, I described the various alignments that represents 39% of the total, that's about normal. That's what we've had in the past more or less, but the number of unanimous decisions is somewhat low this year, also 20, also 39%, so that indicates there's more of those seven to two, six to three decisions by definition.
Maybe that's an indication of some of this centrism coming out led by Roberts and probably Kavanaugh, we'll see how things shake out in future terms when maybe Kavanaugh will feel bolder and maybe speaking more with his own voice rather than trying to kind of go along and not rock the boat.
Rosen: [00:11:54] Leah, that's an interesting statistic about the number of unanimous cases being slightly lower. Tell us more about your sense of the Gorsuch, Kavanaugh dynamic. You wrote a really interesting piece in Washington Post at the end of June called The latest chapter in the Gorsuch, Kavanaugh saga, is the most revealing yet. You noted that Gorsuch revealed a libertarian perspective and Kavanaugh represented a vision closer to big government conservatism, tell us more about that difference and its significance for the dynamics on the court.
Litman: [00:12:24] Absolutely, so I think that the differences between those two justices in fact mirrors the differences between their predecessors. Of course Justice Gorsuch was nominated to replace Justice Scalia. Justice Kavanaugh to replace Justice Kennedy, and Justice Scalia would sometimes side with criminal defendants and like to joke that the criminal defense bar thought of him as one of their favorite justices as a result. This term we saw Justice Gorsuch siding with the two more or the four more liberal justices in several important criminal procedure decisions like Davis or Haymond, in which they invalidated criminal statutes as unconstitutional. On the other hand, you have Justice Kavanaugh siding with the more conservative justices like his predecessor Justice Kennedy did, emitting kind of a big government law and order, traditional, conservative outlook. What I think that that does, and as I suggested in the piece that you were referring to is that it really does help the court's reputation as a nonpartisan institution.
The more example you have of these heterodox splits among the justices and these nontraditional lineups where it's not the chief as in the medium, it's Justice Gorsuch instead and him joining the more liberal justices or you have Justice Kavanaugh joining the more liberal justices like in Apple versus Pepper, the anti trust case, that helps the courts reputation and it's institutional legitimacy because it makes it easier for commentators to point out that not all of the courts cases divide along purely ideological lines, and that fact might help the court over the long run, even as it does issue an important number of very conservative decisions that do divide along ideological lines like the partisan gerrymandering case, or like the decisions where the court elected to overturn prior cases in state sovereign immunity, or the takings clause, and so those differences between the justices with Justice Gorsuch's libertarian streak and Justice Kavanaugh's more pro law and order one are (inaudible) to the courts institutional reputation, and I think that those will persist over time.
The other difference that Ilya just alluded to, which is Justice Kavanaugh's apparently and perhaps temporarily desire to lay low and not openly question precedent as often as Justice Gorsuch does, it's hard to know whether and to what extent that difference will persist just because Justice Kavanaugh's incentive this past year after that grueling confirmation battle in which he was accused of sexual assault, his incentive was to stay low and not to kind of reach out and make a name for himself across the board, and it's unclear to what extent his comparative unwillingness to question precedent as frequently as Justice Gorsuch does is temporary or will persist throughout his time on the court.
Rosen: [00:15:11] Thank you for that interesting point about how heterodox alliances increase the courts bipartisan legitimacy and also for noting cases like Apple against Pepper, whereas you said, Justice Kavanaugh joined for liberals in holding that people who purchased apps for their iPhones through the app store of Apple were direct purchases under a case called Illinois brick and can sue Apple for the supposedly monopolizing of retail market. Ilya, what can you say to help We the People's incredibly sophisticated and passionate listeners understand about the difference between the constitutional methodologies of Justices Gorsuch and Kavanaugh? Maybe you can describe each of their constitutional methodologies as you understand it.
Shapiro: [00:15:57] Sure, Gorsuch is an unabashed originalist which means going back to the trying to understand what the public meaning of the relevant provisions are at any given time, so for example, in the Tim's case about applying the excessive fines clause in the 8th amendment to the states or what lawyers call incorporating that against the states, he will like, with Justice Thomas, is favorable towards reviving the privileges or immunities clause, which was short circuited in the slaughterhouse cases five years after the 14th amendment's ratification, whereas Kavanaugh did not sign on to the majority opinion that just said we can do this as we've done generally through subset of due process, no need to join the concurrence regarding the privileges or immunities clause. Kavanaugh during his confirmation hearing, I think, did once call himself an originalist, but he's not known for that. Definitely a texturalist, definitely a skeptic of the administrative state in terms of judges deferring to the executive agencies, things like that, although for reasons different than Gorsuch, but not necessarily someone who looks to history, who cites ancient text, and federalist papers, and contemporaneous speeches during the ratification of the 14th amendment, that sort of thing.
Even though they're both Trump appointees and clerked or Justice Kennedy, they definitely take different approaches. Statistically that's borne out as well. Justice Kavanaugh agreed just as much with Justices Kagan and Breyer as he did with Justice Gorsuch for example, which is remarkable. Adam Feldman, who runs the statistics Imperical SCOTUS for SCOTUS blog says that this is the lowest rate of agreement among any new justices in their first term together appointed by the same president since at least JFK, maybe even before that. You have to crunch the numbers, but it really is remarkable. They're only together 71% of the time, which again, even though they're both supposedly solid to the right originality, texturalist of some kind, apply different method, and that's why I agree with the analysis that Leah just gave, that Kavanaugh's more of an establishment type, more pragmatic like Roberts in many ways whereas Gorsuch is ready to revamp the jurisprudence in light of original public meeting as he sees it, often, not always agreeing with Thomas in that regard.
Rosen: [00:18:50] Leah, please help us understand the difference between Justice Gorsuch's originalism and Justice Kavanaugh's texturalism. We've talked about some criminal procedure cases where different approaches led them to diverge, but let's talk about the Gundy case where Justices Gorsuch, Thomas, and Roberts expressed a willingness to resurrect the so called non delegation doctrine, which has been dormant since the new deal and would impose limits on congresses power to delegate lawmaking authority to the executive. Justice Kavanaugh was recused and Justice Alito said he might be willing to join when the time was right. Justice Kagan and her majority opinion said if resurrected, this would mean the end of government. What was this debate, this fascinating debate between Justice Kagan and Justice Gorsuch about the non delegation doctrine and what does it say about the future of the administrative state?
Litman: [00:19:41] Yeah, so I just want to know that in answering the previous question, Ilya's kind of referring to that dynamic that I alluded to, which is these differences between the two nominees generate a set of statistics that can be used to bolster the courts institutional legitimacy and counter the idea that the two recent Trump nominees are the same, and therefore the justices and judges are just partisan ideologues, but even though the two most recent nominees have these methodological and perhaps temperamental differences between them, I think it's important to underscore that they often reach the same result, so for example, they both voted to overturn the courts prior decision regarding state sovereign immunity. They both voted to overturn the courts prior decision in a taking case. They both vote together in the administrative law case Kaiser versus Wilkie, where Justice Kavanaugh was not recused, and would have elected to overturn the doctrine under which federal courts defer to administrative agency's interpretation of their own regulations.
Even though Justice Kavanaugh was not yet on the court in Gundy, the decision you referenced where Justice Gorsuch indicated he would revisit the intelligible principle doctrine, which allows Congress to defer to agencies, the authority to make rules that are binding on private parties, Justice Kavanaugh actually joined the portion of Justice Gorsuch's opinion in Kaiser that questioned the constitutionality of allowing administrative agencies to impose regulations that are binding on private parties, so I think that Justice Kavanaugh has already (avenced) some sympathy if not entire willingness to go along with Justice Gorsuch's revamping of the American state, and what the debate between Kagan and Gorsuch is about is as Justice Kagan suggested about whether “much of American government is unconstitutional.” The foundation of the American state rests on the idea that Congress can defer a significant amounts of discretion and authority to administrative agencies, and that includes agencies like the Environmental Protection Administration and the Social Security Administration, the Consumer Financial Protection Bureau, agencies regulate all hosts of industries and all manors of private activity, and so by questioning the foundations of their ability to do so, Justice Gorsuch is casting a shadow on American government as we know it, and in that project Justice Kavanaugh, even though he might not share the same methodology as Justice Gorsuch does, indicated he had some sympathy with.
Rosen: [00:22:11] Ilya, if there were or when there are five votes to resurrect the non delegation doctrine, how big a deal will that be, and how will it transform the previous understanding of the post new deal constitution?
Shapiro: [00:22:27] Well, it would force Congress to actually legislate. It would enhance the accountability of our government so the laws are written by legislators rather than administrators or civil servants, who after all are merely supposed to be enforcing the law rather than writing it 'cause let's be clear, this is not supposed to be some sort of left, right division on this. Congress can pass left wing laws, Congress can pass right wing laws. Congress can pass all sorts of different things. The issue here is whether we want the legislative branch only to be legislating or whether we wanted to delegate that power or how much of that power to the executive branch, meaning to the administrative state, and look, in our history only in two cases, both in the year 1935 has the Supreme Court struck down a federal law as being too much of a delegation by Congress to the Executive branch, violating this non delegation doctrine. What we saw here, and I think it's a shame that Kavanaugh didn't end up participating in the Gundy case.
I think they should've either just had a re-argument with a ninth justice 'cause the argument was held during that final week when Kavanaugh was undergoing his senate confirmation or just allow him to read the transcript, read the briefs and participate in the case 'cause otherwise you waste a lot of judicial and litigation resources. It's curious the result, the outcome, it ended up being five to three to allow the particular delegation here, here in the case allowing the attorney general full discretion to write the rules by which the federal sex offender registry would, or would not, or how would be applied retrospectively to people who had already completed their sentences or in any event were prosecuted or convicted before this federal law was passed.
It's a breathtaking delegation in an albeit unusual or sort of weird area, the sex offender registry area, and so it would've been four to four, but Justice Alito ended up giving his vote to Justice Kagan for the plurality without agreeing with her rationale saying Alito did if there were a majority that was willing to reconsider the non delegation doctrine I might go along with that, but there wasn't here, and I'm not about to create waves in such a weird area when there's not a majority, but by doing so, by as some people on Twitter called it, joining the libs to own the libs in the sense that he gave that vote, he gave the victory to the administrative state there, but that allowed stride and decent joined by Thomas and Roberts to be published because in a four, four of course, they don't publish any opinions.
It's just affirmed without opinion and this way we know this is how we know that four of them are ready to invite that future challenge, and Kavanaugh will be the man, the deciding point I guess the next time there really is a non delegation challenge, and I don't think that means a wholesale overturning of the entire administrative state, but I do think it means that there's a lot of programs out there where for too long Congress has been allowed to pass these general laws or not legislate at all as we've seen in the last decade, and still the administrative state produces reams and reams of rules by which Americans live their daily lives.
Rosen: [00:26:01] Leah, help us understand the stakes. Would the regulation of the non delegation doctrine mean at least the beginning of the end of the post new deal administration state, and in practice, what sort of regulations, and agencies, and practices might be called into question?
Litman: [00:26:16] I think Ilya and I probably disagree with this one because I think even if the Supreme Court does not on its docket take up every single delegation to every single agency, the mere signaling that it is a possibility that a court could strike down a delegation to an agency as lacking intelligible principle would create an important amount of uncertainty among agencies and their ability to regulate. It would make them vulnerable to litigation in a way that they are not now, and it would make all of them potentially vulnerable to litigation. It would open up the invitation to regulated parties to bring these suits. It would open up an invitation to lower federal courts to strike down these delegations, and so the Supreme Court doesn't necessarily have to invalidate all of the delegations or that many of them to cause a great deal of mischief in undermining a lot of how agencies work.
As far as the kind of delegations and regulations that would be vulnerable, I think that the world that Ilya's imagining in which Congress is able to redo all of the work that administrative agencies do just isn't possible in part because of the vast number and spheres of areas in which agencies regulate. He mentioned the reams and reams of regulations that are enacted, that's because agencies regulate any kind of industry that you can imagine. They regulate as Ilya suggested, all manners of private life and activity. We're talking about consumers, we're talking about finance. We're talking about work safety, we're talking about food safety. We're talking about communication. We're talking about internet, we're talking about radio, we're talking about really anything you do, employment practices. Anything you do, there's probably a federal agency that conducts some sort of regulation in that sphere, and so by jeopardizing and calling into question the validity of those delegations, you are really paralyzing the agencies and making them vulnerable in a way that they haven't been for over the last 50 plus years, and in that respect I do think that reinvigorating the non delegation doctrine really would jeopardize the foundations of the administrative state and American governance as we know it.
Rosen: [00:28:29] Ilya, we had a great podcast between Randy Burnett and Bruce Ackerman recently, and they agreed that if not only the non delegation doctrine, but other restriction on federal power that had been dormant since the new deal were resurrected, it would amount to a kind of forth republic. You can call it the resurrection of the originalist constitution or the overturning of the new deal constitution, but it would be a new understanding of our constitutional order. Do you agree with that, and do you think that the current line up of the court might resurrect those limitations or would Republicans need a new justice to achieve that goal?
Shapiro: [00:29:14] Well, if you pardon the pun, I think that observing the separation of powers and federalism structures of our constitution would be (wickered) awesome. That is a reference to the Commerce Clause case expanding the power of the federal government to legislate and regulate in a whole host of ways. I mean, I think part of the reason why we have such a poisonous political discourse that has spilled into or enveloped the judiciary and the supreme (inaudible) is any of the decisions in American life are being taken in Washington. One, that's a federalism issue, and then by administrative agencies that could only be adjudicated and ended up in the court, so that's a separation of powers problem. Only by rebalancing power, by actually having Congress be the source of the resolution of debates over policy and by pushing down as much decision making as possible to the state and local level, in a large, pluralistic society, ultimately that's how you prevent this political toxicity, and so yeah, I think if we actually either by the courts ruling or by introducing a constitutional amendment that said after every clause and we mean it, yes, that would resurrect ...
I don't know whether it would be the fourth republic. That sounds like a French term. I think they're up to more republics than that, but it would mean that Congress would have to take seriously its legislative power and so many of these disputes will be pushed down to lower levels where they can be better resolved than one size fits all. For example, we're now going to see this I think in gerrymandering where the federal courts are no longer going to entertain challenges to partisan gerrymandering, but in the states using state constitutional law or state politics you can certainly put in all sorts of rules and limits to how much you can use politics to draw lines, and the same thing can and should be done under my reading of the constitution, which I think agrees with Randy's for things like healthcare, and tax policy, and a whole list of other things.
Rosen: [00:31:40] Leah, tell us more about what let's call it not the fourth republic, which is quite French, but the originalist constitution would mean if it were resurrected in practice. Do you agree with Ilya, that they would simply push things down to the states and that regulation can probably take place at that level or would it have other effects that you're less sanguine about?
Litman: [00:32:01] I think I would do well here to reference a piece that Jamal Green, who's a professor at Columbia wrote for Slate, in which he noted that what did con law look like in the pre 1935 era that these justices are pushing us to. In a word he wrote, it sucked. There were no protections for racial minorities, there were no protections for women. If we're talking about going back to the original republic, this is an era of Jim Crow. This was an area was there was rampant sex discrimination and misogyny. There was no regulation at the state level because the states are not equipped to regulate industries that span across different states and can evade different forms of regulation if there's merely one state that doesn't regulate them, so the idea that you are just pushing all of this kind of regulation down to the states is I don't think feasible just like it's not feasible to say well Congress can just pick up whatever slack the agencies aren't going to be able to do if we revive the non delegation doctrine. Reinvigorating these limits on Congress' power, whether you're talking about what Congress can regulate be it the states or what Congress can give to agencies is, I think, sending us back to an era, and there's a reason we left it.
There was a reason why we needed federal regulation to get us out of an economic downturn because of the interconnectedness of the economy requires there be to be some national regulation in addition to the concerns about what sort of protections there would be if we really were returning to the pre 1930s constitution, so I think those are some of the concerns that some of us might have with a reinvigorated originalist constitution. If we're talking about limits on Congress' power, I think there would be questions about Congress' ability to create paper money or Congress' ability to create a national bank, or Congress' ability to do any host of things that we just take for granted today, like for example regulate the workplace. Those are things that justices who are committee to the original constitution have questioned and under a fair reading of the original public meaning or original history, those practices would be called into question, so I guess I am not super jazzed about returning to that world, in part because I like owning property and voting.
Rosen: [00:34:13] Ilya, does returning to the current court, what have we learned from the votes of Justices Gorsuch, Kavanaugh, Thomas, Alito, and Roberts that might prevent them from resurrecting the originalist constitution with its full vigor, and once the dust settles, taking the current dynamic. Basically, what major precedence do you think are on the chopping block?
Shapiro: [00:34:40] I'll answer that, but first of all, I need to respond a little bit to Leah. I think a lot of that was drawing up a straw man and some of it was bad history, and the rest I think was just a disagreement over some of the policy choices that some states would take in a regime where they're exercising some of the powers that the federal government currently is. Certainly I don't think anyone, no originalist that I know is talking about repealing sex and race discrimination protections. The 14th amendment is a very real and central part of our constitutional order. The bill of rights is as well. Enumerated rights through the privileges or immunities clause, it's not that states get to do whatever to oppress the individual 'cause remember, federalism is there not for states rights. That is a Jim Crow thing, and that's a deviation, and a warping, and a mongrelized way of reading the constitution.
The constitution exists, the structure exists to protect individual liberty, and so that's the reason why we divide up sovereignty, that's the reason why we have both horizontal separation and vertical separation of power. That's the reason why I think this term the Gamble case that allowed the federal government to pursue a prosection of Mr. Gamble for the exact same crime under federal law fell in possession that he was already convicted and punished for under Alabama state law is wrong because again, federalism exists not as kind of an abstract or dry theory but as a manner of preventing oppression of individuals in various ways. There are certainly rights protections of various kinds that nobody is going to take the vote away from Leah, or prevent her from owning property, or anything like that. The new deal, what the federal government did or did not go during the new deal, I think it prolonged the recession. I think it made things worse. I mean, that's a debate over historians. The point is a lot of these straw men or red herrings that are raised about oppression of this or that minority group, or child labor, or environmental toxicity, or what have you, those are just that. That's not the reality of how the original constitution as amended by the subsequent amendments would work.
Okay, now to the conservative five as it were, I don't think they're going to take us to that, whether you call it promised land, or nightmare, or what have you because the court will only go as far or as fast as John Roberts or Brett Kavanaugh, and, or Brett Kavanaugh will take it, and they are cautious. Roberts, as I said is a minimalist or incrementalist, meaning he's only willing to overturn precedent if there's several steps leading up to it, that he's sorted of painted into a corner. Congress hasn't changed these laws that he has problems with, things like that, we've seen that with a number of areas from voting rights, to campaign finance, to property rights. He is not the first one to overturn precedent. He doesn't hesitate when needed, and his opinion on Stare Decisis and Citizens United for example is probably even more important than Justice Alito's discussion of Stare Decisis in Janice from last term about worker rights against union state collusion.
More important than this term discussion of Stare Decisis in either the sovereign immunity case Hyatt or Nick, the property rights case, or others, that's really where they're going to go, so if you had five Gorsuch's or five Thomas's that would be a very different story than the current mix, let alone for something like Roe versus Wade or abortion, where I think you'd probably need at least one, maybe two more justices to fundamentally rethink that doctrine. Although at the margins, certain regulations would be upheld that with Kennedy might've been struck down.
Rosen: [00:38:40] Leah, much turns on the court view of precedent, we had many of the justices express different views of the importance of Stare Decisis or precedent this term. What can we glean from their statements and can you compare what Chief Justice Roberts said about precedent with what Justice Thomas did?
Litman: [00:39:00] Absolutely, so just because I can never let a good argument go completely unanswered, I did just want to respond to two quick things Ilya suggested, which is that the arguments about gender and racial discrimination were very overstated. It's just not true the justices or academics who are committed to let's say originalism have not questioned whether the constitution prohibits discrimination on the basis of sex, so for example Justice Scalia and Justice Rehnquist have both questioned the idea that the idea subjects any kind of heightened scrutiny state laws that discriminate on the basis of sex, and as for race discrimination, I don't think it's poor history to, for example look at Michael (Clarmin's) exhaustive history that suggested based on an original understanding and historical practices that discrimination in public education on the basis of race was widely considered to be constitutional and accepted understanding about what the original public meaning of the 14th amendment was, and even if you think that the 14th amendment prohibits states from discriminating on the basis of race, what about the federal government's ability to discriminate on the base of race.
There is no equal protection clause that applies specifically to the federal government based on any kind of historical kind of understanding or original public meaning analysis, there would be serious questions about whether the federal government would be able to do so, and based on what we have seen for the last three years, I don't think it's hyperbolic to be concerned about that possibility.
As for the justices views on precedent, as you suggested the two different justices, the two newest justices both kind of expressed some interesting views about Stare Decisis, so Justice Gorsuch had an interesting opinion on Stare Decisis in Kaiser versus Wilkie, which is an opinion we've already discussed, about whether the court was going to overrule a prior decision that allowed federal courts to defer to an administrative agency's interpretations of their own regulations. In that case, the chief joined the four more liberal justices to end up not overruling that precedent, and in his dissent, Justice Gorsuch kind of chided the majority for getting gun shy and flinching at the opportunity to overturn that prior case. Justice Kavanaugh joined that section of the opinion. Justice Kavanaugh also joined the section of Justice Gorsuch's opinion that announced that Stare Decisis did not apply to decisions that prescribed a certain method of interpretation like the rule that federal court should defer to agency's interpretation of their own regulations versus a decision that announced a particular interpretation of a particular statute or constitutional provision, so that was one interesting riff on Stare Decisis that we saw this term.
Justice Thomas also outlined a separate writing on his view on Stare Decisis in Gamble versus United States. In that decision the court elected to stick with its prior decision that said the states or federal government can try to prosecute you after the other attempts to do so. In his separate writing, Justice Thomas said Stare Decisis does not require justices to adhere to what they believe are "demonstrably erroneous precedents" so therefore Stare Decisis might ... He required justice to adhere to a decision that's just erroneous or wrong, but doesn't require them to adhere to a decision they think is demonstrably or really wrong, so both of these separate writings are obviously chipping away at the set of cases in which the justices would feel or be bound by Stare Decisis. Ilya also mentioned the courts prior opinion in Janice, which has elected to overturn an important decision governing the ability of public sector unions to collect agency share fees, and in Janice, the court has basically chipped away at that prior case over time, and then when it finally pulled the trigger and elected to overturn that case, the court pointed to its prior decisions as evidence for why that earliest case had been undermined and was unworkable.
We saw the chief justice relying on that opinion in Janice to state the law of Stare Decisis in the takings clause case Nick, and so if that is a majority of the justices views on Stare Decisis, well that too, I think suggest that some number of the justices will feel less bound by Stare Decisis as they themselves chip away at a precedent over time, and there were other majority opinions this term that I think kind of gave somewhat short shift to Stare Decisis, the court sovereign immunity case that we've referred to, Franchised Tax Board versus Hyatt, also did so in that case Justice Thomas devoted a mere three paragraphs to Stare Decisis, and has four reasons for overturning the case. You know, the first three were basically this decision is wrong as original public meaning. This decision is wrong when compared to the courts prior precedents, and this decision is wrong in light of other facts about the world, and so if the justices are relying primarily on their assessment that a prior decision is wrong as a reason to overturn it, then I think that that might lead to more precedents being overturned than we would otherwise expect.
Rosen: [00:43:51] Thank you so much. That was a wonderful answer and a tearful parsing of three cases, Hyatt, Nick, and Kaiser where you really explained very well the different tests. You ended with the Hyatt case, where as you said Justice Thomas identified four factors to consider it the quality of the decisions reasoning, its consistency with related decisions, legal developments since the decisions, and reliance on the decisions, the first three factors you suggested are basically is the reasoning, the consistency and the legal developments wrong, leaving just reliance. Ilya, what can you add to Leah's parsing of those three cases, and do help us understand the difference between Justice Thomas' approach and perhaps the approach of Chief Justice Roberts who seems to put more weight in Stare Decisis?
Shapiro: [00:44:39] Well, I think the factors that you just listed coming from Thomas' opinion, those are not specific to Thomas. They always use that. Alito listed essentially the same thing in Janice, John Roberts talked about the same thing in Citizens United when he had a special concurrence just about Stare Decisis. I frankly don't think any of the justices have a particularly strong view of Stare Decisis. Perhaps nobody doesn't think of it as important hardly at all like Thomas and maybe Gorsuch joins him in that, but I think the most of them are probably ready to throw out cases they think are particularly wrong, whether it be Citizens United or Heller for some of the progressive justices, certain other doctrines, it really depends on whose ox is being gored. Leah and I can argue whether it's worth overturning a particular precedent or not or how wrong in the grand pantheon it is. I think one thing that generally does animate the cases that have been overturned in the last five or 10 years, and by the way, the Roberts court overturned precedent at a lesser rate than the Rehnquist court, than basically any modern court going back to, I think Earl Warren.
Joanna Adler at Case Western law school has done some good writing about this. They also strike down fewer statutes than those previous courts as well by the way, so you know, this is not a quote on quote activist court, whatever you might think, whether they're doing right or wrong, but what they're looking for is was the original decision that they're looking to overturn, has it been undermined or did it originally misperceive certain things, so Janice for example was based on an in passing reference to a particular interest that originally from cases in the '50s and '60s had to do with jurisdiction under the commerce clause, federal jurisdiction, federal power rather than a first amendment interest in preventing workers battling with unions or something like that, so same thing Citizens United, the case that was overturned was the only one ever that had used an interest other than the desire to prevent corruption, quid pro quo corruption or the appearance thereof, and so it was seen as anomalous. That's the story that's told, and I think you could write that story about a lot of contentious doctrines in the past that aren't settled in the sense that some people are still disputing them.
Something like segregation, something like racial or gender discrimination, I think those pretty much are settled and Leah raised (Clarmin's) work on Brown v. Board and original understanding of racial discrimination. I'll see that and raise her Michael McConnell's work that you can very well justify through originalist grounds, federal efforts to desegregate schools and the right to have that kind of education, so anyway, we can go on and on. That'll have to be a topic for a future podcast, but also you don't want to overstate the case. Even in Kaiser, Elena Kagan's majority opinion was really striking in how it was trying to limit the deference that judges give to agencies, so simply a lawyer, an agency reconsidering a previous legal position, that's not enough. There has to be agency expertise involved, scientific or economic, or who knows what. The stature itself or the regulation that's being reinterpreted has to actually be ambiguous. For that matter, Kavanaugh wrote about that all the time when he was on the DC circuit, which is perhaps why both John Roberts joining Kagan and Kavanaugh joining Gorsuch said there really wasn't that much separation between Kagan's plurality or majority and Gorsuch's concurrent opinion that would've overturned (inaudible) all together.
We'll see how that turns out in practice. Are lower courts going to actually be deferring to agencies less. For that matter, are agencies going to be doing more work and not simply changing their policy views in a footnote, or an amicus brief, or through paper guidance rather than notice a comment or what have you. Maybe five or 10 years from now there will be another challenge to Hour. At that point, John Roberts would be ready to overturn it or based on Kagan's tightening of the standards for agencies to use or for courts to use when they're evaluating agency action, maybe that will have solved the problem, and there will be no further need to overturn Hour. Again, some of these are important differences, some of them may be overstated.
Rosen: [00:49:19] Many thanks for that, and We the People listeners, you remember from our previous podcasts that hour is the case that directs case to defer to an agency's reasonable interpretation of its own ambiguous regulation and the Kaiser case refined it without completely overturning it. All right, it is time for closing arguments in this really rich and vigorous discussion, and the first one Leah is to you, how does the new Roberts court with the addition of Justice Kavanaugh differ from the Kennedy court that prevailed last year?
Litman: [00:49:55] I think that the new Roberts court differs from the Kennedy court in that it is more reliably conservative, particularly on social issues like LGBTQ rights or abortion, and I think on those issues where Justice Kennedy's vote was always kind of in play, I think that advocates will have a much steeper hill to climb convincing the chief justice to join them and side with the four more liberals, and I think that even though Ilya and I, and I have written about some of the important differences that exist between Justice Gorsuch and Justice Kavanaugh, that should not obscure the important similarities between them and how reliably conservative the two of them have been in important cases like partisan gerrymandering, the takings case, the administrative deference case, the state sovereign immunity case, and others as well, and that Justice Gorsuch's more aggressive attitude toward precedent is also kind of (inaudible) to the court in that it makes Justice Kavanaugh and the chief look a little bit more moderate, so we can refer to them as toward the middle of the court as a pragmatist when as their votes in several cases suggest they are also willing to reshape American law in some important ways and important areas.
Rosen: [00:51:15] And Ilya, the last word is to you. How does the new Roberts court differ from the Kennedy court?
Shapiro: [00:51:22] Well, it's really too early to tell. This was an unusual term with very few blockbusters. Leah's probably making a predictive judgment about LGBT rights and abortion 'cause they didn't have those cases this term other than a little bit on the shadow docket, and as we've seen they declined to take up these abortion regulation cases out of Indiana, out of Louisiana. People a month and a half, two months ago were very concerned about the effective bans on abortion in Alabama and Georgia. Well, if this court isn't willing to take up just kind of run of a mill regulations and restrictions, I don't think they're going to be taking up these effective bans, so that I think a lot of the play from Roberts and Kavanaugh to be pragmatic, to be centrist is going to come in that shadow docket rather than if they're forced when the rubbers hit the road to decide one or another.
The biggest difference that we saw this term explicitly, not just in terms of kind of predicting based on their records of Kavanaugh replacing Kennedy is in partisan gerrymandering. For decades there have been these challenges brought and Kennedy basically said yeah, I think there's a problem with partisan gerrymandering but nobody's giving me a manageable standard to apply as a judge. Well, Kavanaugh definitively said no, this is not something for the courts, agreed with Roberts on that. I think we might see something similar if and when the Harvard or some other racial preferences in education admissions case comes up, affirmative action. That could be an area where Kavanaugh is much stricter, that is does not want government to use race in whatever context, but the rest is really to be determined.
Kavanaugh is both more conservative than Kennedy and less libertarian, meaning maybe more comfortable with a new deal state, maybe on statutory questions that are nebulous, giving the benefit of the doubt to government rather than to a challenger, be that in the criminal context, be that in the LGBT context, be that in abortion or anything else, and we'll just have to see how that all shakes up, but I think the first term is never determinative, not in the sense that Kavanaugh's going to shift in his thinking but in terms of his strategic role, what kind of opinions he writes, so very much to be determined, but this is not the year where a five justice conservative block turn the court radically to the right. May happen, but not yet.
Rosen: [00:54:11] Thank you so much Leah Litman and Ilya Shapiro for a rigorous, illuminating, and excellent discussion of the important first term of the new Roberts court. Leah, Ilya, thank you so much for joining.
Litman: [00:54:27] Thank you for having us, even though I didn't get to make my Kaiser joke.
Rosen: [00:54:32] What's your Kisor joke?
Litman: [00:54:34] The greatest trick Kisor versus Wilkie played is convincing the world our deference doesn't exist.
Shapiro: [00:54:41] Well, I've heard that one. There's also Kisor got rolled or didn't get rolled, and you know, what they really did was trim our deference into more of a minute deference.
Litman: [00:54:54] Yeah, see there's so many good puns on this case.
Rosen: [00:54:58] I think we may actually leave this on the podcast because our listeners deserve to hear it. Thank you.
Litman: [00:55:04] Deal.
Shapiro: [00:55:05] Take care.
Rosen: [00:55:10] Today's show was engineered by Greg Shepherd and produced by Jackie McDermot. Research was provided by Lana Ulrich and Michael Boyd. Please rate, review, and subscribe to We the People on Apple podcast and recommend the show to friends, colleagues, or anyone anywhere who's hungry for a weekly dose of constitutional debate, and dear We the People's friends please remember, as you wake, as you sleep that the National Constitution Center is a private nonprofit. We rely on the generosity, passion, and devotion to lifelong learning from people like you from across the country who are taking the time to listen to an hour of wonky, important, and illuminating debate so that you can make up your own mind. You can support our mission by becoming a member at constitutioncenter.org/membership or give a donation of any amount, even a dollar to signal your support for our work including this podcast constitutioncenter.org/donate. On behalf of the National Constitution Center, thank you for a wonderful Supreme Court term. I'm Jeffrey Rosen.
