On Monday, the Supreme Court announced that it will hear its May oral arguments over the phone, allowing the public to listen in live for the first time. On this episode, host Jeffrey Rosen first interviews Marcia Coyle, chief Washington correspondent for The National Law Journal, to discuss that change and other adjustments the Court has made due to the coronavirus pandemic. Coyle is also the new Supreme Court correspondent for the National Constitution Center’s blog Constitution Daily. Next, Jeff is joined by appellate lawyer Jaime Santos and Case Western Law professor Jonathan Adler to dive into the substance of the cases recently decided, and those being argued in May.
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PARTICIPANTS
Marcia Coyle is Supreme Court correspondent for the National Constitution Center’s blog Constitution Daily and the Chief Washington correspondent for The National Law Journal. She has covered the Supreme Court for 25 years for numerous publications and is a regular contributor to PBS NewsHour. She is a contributing author to the book A Year in the Life of the U.S. Supreme Court and is the author of the 2013 book The Roberts Court.
Jaime Santos is a partner in the Appellate Practice at Goodwin Law where she practices appellate and complex civil litigation in federal courts. She has argued before numerous state and federal trial and appellate courts and is a co-host of the Supreme Court podcast Strict Scrutiny.
Jonathan Adler is Johan Verheij Memorial Professor of Law and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. He specializes in constitutional, administrative, and environmental law—and has repeatedly testified before Congress and had his work cited by the Supreme Court. He is a contributing editor to National Review Online and a regular contributor to the legal blog, The Volokh Conspiracy.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- "Whither the Supreme Court?" by Marcia Coyle for Constitution Daily
- Supreme Court press release regarding May teleconference oral arguments
- Recent opinions:
This episode was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by Michael Markus and Lana Ulrich.
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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.
On Monday, the Supreme Court announced that it will hear its May oral arguments over the phone, due to concerns about the coronavirus. For the first time in history, the public will be able to listen to the oral arguments live. On today's episode, we'll discuss this change, and how it is impacting the way the court works, with Marcia Coyle.
I'm thrilled to share that Marcia Coyle is the new Supreme Court Correspondent for the National Constitution Center's Constitution Daily blog, and we're so excited to have her join our team. Later on the show, appellate lawyer, Jaime Santos, and Professor Jonathan Adler will join me to dive into the substance of the cases that the court will hear in May.
Marcia Coyle, it is such an honor to welcome you as the new Supreme Court Correspondent for Constitution Daily. I'm thrilled that your insightful commentary will illuminate our readers of constitutioncenter.org, and also our We the People listeners. And, it's a pleasure to introduce you to We the People.
I'd like to ask you, what has the Supreme Court been doing in the time of the virus? The other branches, the President and Congress have been visible, but we haven't heard much from the justices. How have they responded to the virus personally? And how are they accommodating to the challenges of working remotely?
Marcia Coyle: [00:01:47] First of all, Jeff, thank you for your kind words. I'm thrilled to be with you, and your viewers and readers. you're right, th-, it seems as though the court, the Supreme Court itself, and maybe even a bit of the judicial branch, has seemed somewhat silent as the virus has raged across the country.
But the truth is, the Supreme Court has been conducting business as unusual, if not usual. the court has been meeting for its regular private conferences, although they're doing it differently these days. there's a room in the Supreme Court building, and the building is close to the public, by the way.
But there's a special room, in the court, in which the justices would normally hold their private conferences, during which they would go over, the cases that have new cases, that have come into the court, and try to decide which ones they would like to have arguments in, for the new term, which ones they don't.
But what's unusual this time is that the only person in the conference room has been Chief Justice John Roberts Junior. The other eight justices have been participating, by teleconference, which certainly is a change for this court. but the court has been able to do its work. the court has been making decisions in pending cases that were already argued, October, through February. And, they've been posting those decisions on the court's website.
So, we don't have the normal process where the justices would sit on the bench and they, would read a synopsis, or a summary of the decision that each justice had, had written. but the decisions are on the court's website, and they also have been issuing what we call orders lists. And those are the lists in which the justices show whether they're going to hear a case, or deny review. And sometimes they, they, they take a, sh-... make short decisions in new cases that have come to them.
So, th-the court has been working, Jeff. it hasn't been sitting on its hands, but certainly it is, is, is doing what so many of us are doing right now, working remotely and trying to stay safe. as you know, a good number of these justices fall into the high risk category. And the court is very aware of that.
And the chief justice, I think, has taken all the right steps in order to try to protect the courts' health, as well as the health of its staff. The court's staff is also working remotely for the most part. you would find only, a few Supreme Court police, in the building right now.
Jeffrey Rosen: [00:04:27] The court also made a historic announcement recently that will broadcast live teleconference oral arguments for the first time in history. Tell us about how those arguments will work in practice. Will the Chief call on justices? Will they just jump in on the line? And how will they work out the technological kinks?
Marcia Coyle: [00:04:49] Well, you're right, this is historic. It's really, [laughs], pathbreaking for a Supreme Court that has been loath to adopt modern technology, in terms of, allowing cameras in the courtroom, or even having, same day live audio of oral arguments. the, the court won't have cameras for these arguments that are gonna be held in May. There... It'll be on six days, in May, during the first two weeks of that month. they will hear 10 cases, but it'll be by teleconference, again.
There a lot of questions about how this is going to work. as you know, this is a really hot bench, as they call it. The justices have lots of questions during arguments, and sometimes they trip over each other and the Chief Justice has to act as a traffic cop, so that everyone gets a chance to ask the questions. the court hasn't yet, announced guidance on how it's going to do this. I think, probably, it's working through those questions right now.
Will the Chief Justice, maybe pick on the justices by, seniority so that they can ask questions with pauses in between? the lawyers who are going to argue l-, are, are wondering about a lot of things right now. something as simple and basic as in the courtroom, when they argue at the podium, there is a light that flashes white and flashes red. It signals when the lawyer is, going to only have maybe five minutes left to an argument, and the red tells that lawyer, "Your argument is done, move on." W-what will they see? Who is going to signal to the lawyer that the argument is going to, be almost over, or is over?
And also, th-the lawyers themselves are going to be at something of a disadvantage here, because so critical to their arguments is being able to see the body language of the justices. Is the justice making a face during the argument, [laughs], that shows skepticism, or, or is the justice leaning forward, really, involved in what the lawyer is saying? And when does the lawyer know when he, or she should really stop answering the question, [laughs], and the justice is satisfied? so, they're going to miss those cues, which will make it a little more difficult.
On the other hand, Supreme Court arguments are generally conversations between the lawyer and the justices. The justices do not like speeches. They don't want you reading a prepared speech, but this time, since you're on the phone and the justice doesn't see you, [laughs], you may be able to read, your opening statement. You may be able to look at your notes, to answer a question. so there's just a lot, we don't know yet, Jeff, and I think the court probably will, issue further guidance. And I also know, because I've seen mentions on Twitter, that there've been suggestions that the court actually have a run-through before they hold the argument, [laughs], in order to work out these kinks.
Jeffrey Rosen: [00:07:44] Well, we know, from podcast recordings and all virtual meetings, that rehearsals are always a good thing. [laughing]. Well, what, what have, the lower courts found as they've used, virtual argument technology, and what can the Supreme Court learn from those experiments?
Marcia Coyle: [00:07:58] Well, they... Those courts have actually been ahead of the Supreme Court, I would say. The Federal Appellate Courts, for the most part, have also done as the Supreme Court, in terms of postponing arguments until they figured out, you know, what they could do. And for the most part, a lot of them are holding teleconference arguments.
And yes, there have been kinks in that, in the Washington, DC, Federal Appellate court that... it's based here. there were dropped phone calls, on, an argument that had three judges, on a panel hearing it. and, some, some couldn't get back onto the line in order to continue the argument. So, there are kinks.
And... But then, you know, there are state Supreme Courts too. And, and a couple, I think the Fourth Circuit Federal Appellate Court that have adopted video conferencing for their arguments, Zoom. And that seems to be working out. So I think the Supreme Court, at least its tech people will be able to call around to get some, good clues as to how to make this work.
Jeffrey Rosen: [00:08:57] W-well, someone commented that the Supreme Court hasn't adopted soon, 'cause the justices don't wanna become a Saturday night live skit, [laughing]. But some of the justices are using Zoom. At the very least, Justice Briar is, we learned from the Wall Street Journal. are he and other justices using Zoom to communicate with their clerks? Ho-how are the justices using Zoom, and how are they communicating with each other more generally as they send around drafts of opinions and work remotely?
Marcia Coyle: [00:09:24] Well, the, justices and their clerks are working remotely. And, I believe they would be able and are able to continue to use email, which is something they, they, they do, when they were actually in the court building. Their internal email, allows them to share drafts of opinions. they still, They don't do this, and w-, by wor-working remotely, but when they were in the courthouse, they were able to walk, draft opinions, [laughs], on paper, down to each other's offices, if that was how they wanted to proceed.
But, right now, they are all working remotely. You're absolutely right about Justice Briar, using Zoom. He's, he's using Zoom to stay in touch with, family members. he also taught a class, via Zoom. And, and this is s-, really sort of surprising, because he often pokes fun at himself, during oral arguments, when the court has a technical case that involves cell phones, or some other technology. he's trying to portray himself as, as really being a neophyte when it comes to that technology, but it, it, appears he has adapted quite well to Zoom, as have so many others in this country right now.
So I, I think, the, the work goes on. They have access to all their briefs, electronically. everything they need is really at their fingertips. So, I think, at least for now, they're doing the best they can. And we have to wait and see what this all means for the court when we, when we emerge from the virus, and the need, the urgent need to be able to have this technology, in order to continue, the work, and to continue contact with families and friends.
Jeffrey Rosen: [00:11:05] Thank you so much, Marcia Coyle, for your insights. We are so thrilled and honored that you will be providing regular commentary for Constitution Daily, at constitutioncenter.org, to enlighten Americans and v-, learners around the world, about the workings of the US Supreme Court. Marcia, thank you so much for joining, and welcome aboard.
Marcia Coyle: [00:11:25] Well, thank you. It's my pleasure, and I look forward to it. And look forward to hearing, from, the many people who follow you at the Constitution Center. Take care of yourself, Jeff, and stay well.
Jeffrey Rosen: [00:11:37] You too, stay safe. I'm joined by two of America's leading experts on the US Supreme court, and I'm so honored to welcome them. Jaime Santos is a partner in the appellate practice at Goodwin Law, where she practices appellate and complex civil litigation in federal courts. She's written more than a dozen briefs files with the Supreme Court, and she is cohost of the Supreme Court podcast, Strict Scrutiny. Jaime, thank you so much for joining.
Jaime Santos: [00:12:10] Thanks for having me. I'm excited to be here.
Jeffrey Rosen: [00:12:13] And Jonathan Adler is Johan Verheij Memorial Professor of Law, and Director of the Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law. He has repeatedly testified before Congress, and his work is often cited by the Supreme Court. He is a contributing editor to National Review Online, and a regular contributor to The Volokh Conspiracy. Jonathan, it's wonderful to have you back.
Jonathan Adler: [00:12:39] Great to be here.
Jeffrey Rosen: [00:12:40] Let us begin, friends, with the recent Wisconsin election case. The Supreme Court, in Republican National Committee versus Democratic National Committee, overturned a decision of Wisconsin District Courts to extend the postmark deadline for ballots to be counted.
It was a highly contested decision. You've both written about it. Jamie, tell us, what was the reasoning of the court's majority in stopping the ballots from being counted, and unless they were mailed by election day? And what was the dissent's reasoning, and which do you agree with?
Jaime Santos: [00:13:21] So, eh, this is a really interesting opinion, because it is... it comes out during a global pandemic, a, a, a public health crisis, and the majority's opinion actually didn't mention the word pandemic. It mentioned COVID-19 only when discussing what the court was not deciding, and it, and it cabined its decision, in a way that said, "You know, this is really narrow." We're just looking at a narrow question about whether absentee ballots have to be mailed and postmarked by election day, or, as you mentioned, whether they could be mailed and postmarked after election day, as long as they're received by April 13.
So, what the court says is, a few things. First, they say a critical point in this decision is that the plaintiffs didn't even seek this postmarked by day relief in their motion. and we're not gonna say it's forfeiture, but we think that's very important. and what the District Court did here is, it kind of reached out, decided something that wasn't even sought by the plaintiffs. and did so in a way that violated what the court called the Purcell Principle, which is based on a 2006 election case.
And the court said the Purcell Principle means that lower courts shouldn't alter election rules on the eve of an election. because, otherwise, it will result in judicially created confusion. And intervening now could really affect the integrity of the election process. And then the rest of the court's decision, largely kind of focused on what the defense said and responded to those issues. So, the dissent was authored by Justice Ginsburg, and it focused almost entirely on the public health crisis, on the impact of that crisis on voting. And the fact that this public health crisis was causing a massive backlog on absentee ballot requests and absentee ballots in county clerk's offices.
So, just as a tiny bit of background, in a normal election year, there might be 100,000, or 200,000 absentee ballot requests. This year, just at the time of the district court's decision, there were 1.1 million ballot requests. which meant that county clerk's offices were being overwhelmed. The US Postal Service was slowing down mail. and as a result, the district court found that there would be tens of thousands of people who wouldn't even receive their absentee ballast... ballots by the, by the time of the election day.
And so, what justice Ginsburg said is, "We're in the middle of a massive pandemic, and the, the majority's decision is going to result in massive disenfranchisement. And that massive disenfranchisement greatly outweighs any of the concerns that the, that the majority had, about kind of judicial overreach. This is a... an unprecedented situation and, any, any concerns the majority had pale in comparison to the, the right to vote."
And then she closes by focusing on, really, the dire consequences of the majority's decision. And she says, "Tens of thousands of Wisconsin citizens will have to risk their lives or give up their right to vote." and, and that's a pretty weighty way to close an opinion. as far as my views, you know, I, I think it is certainly possible and reasonable to, in a, in a normal case, have a concern with a district court that doesn't just uphold or enjoin a law, but rewrites it. Which is what the district court did here. It rewrote election procedures. It set a new date, and it changed state law.
And I think, in normal cases, people would say, "That's not the role of a district court to play." But this isn't a normal case. And so, I think that for the majority to take a... an extremely long thoughtful opinion by a district court, that cataloged the evidence in favor of, of, of providing relief to voters, and to kind of cast that aside with three pages is, is troubling to me, particularly in the middle of a pandemics. You know, I, I tend to think that, that the dissent had the better of the arguments. eh, and I think that the... these circumstances are just, so different from any of the other cases the court, referred to.
Jeffrey Rosen: [00:17:17] Jonathan, in your discussion of the Wisconsin cases, The Volokh Conspiracy, in making sense of the Wisconsin election Supreme Court decisions, you quoted a post by Marquette University Law Professor Chad Oldfather, who you said wrote a fairly balanced assessment of the legal issues.
Professor Oldfather said, "Considering the abstract, I wouldn't consider, characterize, the case as easy. And that it essentially comes down to a willingness to account for unique circumstances. The majority does, tend toward a business as usual approach and the dissents do not."
Which do you tend to, and tell us more about the Purcell Principle, and how that Principle tells courts about how to accommodate unique emergencies.
Jonathan Adler: [00:18:03] sure, Jeff. So, I think, in terms of the Purcell Principle, the Supreme Court, for a w-, a while, has endorsed the principle that federal district courts should not make changes to, electric procedures, in the days sh-, just before an election. That, that for elections to, happen, or in an orderly fashion, there shouldn't be an incentive for parties to run to court to try and change the rules midstream. And that that's really not, the role that federal courts should play.
And that principle certainly was a big factor for the majority here. That, that this opinion came out, just a few days before, the election was supposed to be held. It came out, very late in the day, under Wisconsin law, in terms of applying, for absentee ballots, and under, normal s-situations late in the day, in terms of when absentee ballots would have to be mailed. And, and the majority certainly thought that that principal, needed to be upheld.
the other thing that I think, affected the majority's, reasoning, eh, is that the way the district court, modified Wisconsin election law, is that it would create the possibility that people could cast their ballots, after the election day, perhaps even with knowledge of what preliminary results were. And that, that is, is particularly problematic. The district court said that election results weren't supposed to be released until the deadline. but, of course, th-, w-we know that exit polls and other things, often leak, at a time, and the court was concerned about that.
I, I think that there are two other things that, that, are worth noting. One, which is just a problem with this sort of litigation, generally. You know, it's, it's done under incredibly tight time constraints. And so, that means that, that the litigants don't always have the time to fully develop their arguments. That the courts might not always have the time to consider every factor.
So, one factor that really hadn't been considered by anyone is the fact that a lot of absentee ballots actually aren't ever postmarked, because, the post office doesn't postmark everything. If you have, you have prepaid envelopes, and things like that, they often get mailed without any postmark at all. And that certainly affects whether or not, a postmark can be irrelevant deadline. And, and that wasn't really considered by, by anyone. and so, I think that's an important factor.
The other thing that's just in the background here is, what should federal courts do or not do when political officials who clearly have the, ability and the power to solve the problem, don't? You know, I, I live in Ohio, and we face a similar sort of issue. And, here, the governor and, the Secretary of State acted very forcefully and aggressively to move our election day, and to basically force the legislature to, to accommodate that. Wisconsin, for a variety of reasons, that did not happen.
And, yeah, I think we can all say... I certainly think that the Wisconsin legislature was very derelict in its obligation, to ensure that elections can occur in an orderly way, and in a way that doesn't put anybody at risk. but that doesn't necessarily mean that federal courts sh-, necessarily have the power, to intervene the last minute, and to rewrite a, a statute in ways that weren't necessarily even asked for, by, the parties.
so, it's a very unfortunate decision. And hi-... And I think what it highlights is that state legislatures really need to be thinking, now, about how they're going to make sure that elections can proceed if we're still in a situation where, you know, people congregating in polling places i-is something that's, that's not advisable when we have our fall elections.
Jeffrey Rosen: [00:21:43] Jaime, in your commentary on the Wisconsin case, you wrote, "For those decrying traditional activism by the district court, what exactly would you have the remedy be? You've got a violation of the right to vote on one hand, and no way of preventing it on the other." And you have noted that indeed, there were 682 ballots without a postmark. The election officials have decided, in the end, to count that.
And also that Justice Ginsburg was correct to predict that many people who requested ballots wouldn't receive them in time to mail them on election day. So, tell us about, in practice, how you believe that courts should deal with these extraordinary exigencies, moving forward, and what kind of similar controversies do you anticipate in other states, moving up to election day?
Jaime Santos: [00:22:32] Well, I think that, you know, u-unfortunately, at this point, I think what the Purcell Principle stands for is that, the, the Supreme Court will not allow lower courts to intervene as long as disenfranchisement happens close to an election, irrespective of the, the kind of exigencies of the situation. and that's a pretty frightening Principle. And I think it, it is far afield from what Purcell itself said. Which, eh, the Purcell expressed concerns with changing the rules in the eve of the election.
But what it also cautioned is that the possibility of voter disenfranchisement requires district courts to pay attention, even if these lawsuits come up on the eve of an election. And this clearly isn't a situation where people were just delaying. I mean, COVID-19 crisis happened in March. This lawsuit was filed on March 17th. By April 1st, there was a hearing. April 2nd, the district court issued a 50 page opinion.
So, unfortunately, I don't know that the... that district courts have a lot of guidance on what they can do, except that they really can't do much. a-and in, in this case, the district court's opinion was supported by, you know, fact finding, by lots of record citations, none of which the Supreme court majority opinion had. I think what this says to states is that they need to make sure that the governor and that legislatures have the power to protect, their citizens.
And I think if a district court is merely deciding whether to uphold or enjoin a state law in a way that says, you know, you simply can't apply it, that will be fine. but, but as far as, as ch-, you know, making any change to election procedures, I, I think that this probably indicates that that would be completely off limits.
I also fear that this might encourage gamesmanship in the lead up to elections, in certain states. Where we've already seen, you know, massive, voter disenfranchisement through poll closings, and things like that. Things that also, you know, you wouldn't be able to file a, a, a preliminary injunction motion a year ahead of time. It would only be in the lead up to election. So, so I think this has really dire consequences for elections, going forward.
Jeffrey Rosen: [00:24:39] Jonathan, final thoughts on the Purcell Principle, and the path, moving forward. Purcell itself is worth reading. It's short, from 2006. So, We the People listeners, check it out. It involved a case where the state of Arizona approved a proposition to combat voter fraud by requiring voters to present proof of citizenship when they register. They prove that by initiative. And the question was whether courts could stop that initiative from going into effect before election day.
And in the course of basically requiring that the district court weigh in before the appellate court make a decision, the Supreme Court said a state indisputably has a compelling interest in preserving the integrity of its election process. It talked about the compelling interest in ensuring that qualified voters weren't turned away from the polls, and ensuring confidence in the election results. But thought that, on balance here, the district court should have been given a chance to weigh in.
So, you know, Jonathan, if you were to extract a, a constitutional principle in Purcell, that the Supreme court and lower courts can apply, moving forward, what would it be? And then, you did write a really interesting piece about what you think that state election officials can do to ensure that elections look more like Ohio and Wisconsin. So, tell our listeners about those.
Jonathan Adler: [00:26:03] So, a couple of things. I mean, one, I mean, the Purcell Principle reaffirms the, the principle that it is state legislatures and executive branches that are responsible for administering elections at the state level. and that that needs to be respected. And that courts should be wary about interfering, and wary about disturbing the reliance interests that voters have, that the rules that the political process sets in those states are the rules that are going to be applied.
The one thing that, you know, Purcell did not address, but that the current situation brings up is, to what extent do we view federal court intervention differently if the problem is something that the political actors did? Say, a legislature making a late change to election procedures, that's going to benefit one party versus another, as opposed to something exogenous. you know, historically, we would have said, you know, a blizzard, or a power outage, you know? Now, [laughs], now it's a pandemic, which is certainly not something anyone I think im-imagined in these sorts of scenarios.
And I think there is an argument, a quite strong argument that we should view these sorts of things differently. And that the argument for federal court intervention is actually weaker when, the thing that's going to prevent people from voting is something exogenous, as opposed to something, done by a political actor that might have, you know, a motive. right, a, a state legislature may seek to tilt election rules to benefit incumbents. COVID-19 doesn't care. It is an exogenous factor. it's just a particularly severe, exogenous factor. Eh, but if anything, I think that cuts against federal court intervention, not in favor of it.
In terms of going forward, I, I highlighted, a, a, a post, a couple of the Kleinfeld's brother and sister, one a Republican, one a Democrat. suggesting that there are lots of things states can do, in terms of, drive through voting, in terms of, voting by mail, more liberal absentee voting, basically to remove the pressure to have to show up, in person to vote. That is ultimately what we did in Ohio as well. We ex-, essentially extended the election period. a-and I think that states need to be thinking about that, should be doing that.
The empirical evidence that we have suggests that while the risk of fraud or mischief with absentee voting is slightly higher, than with in-person voting, there is very little evidence, that states that have, developed extensive absentee voting, or allowed vote by mail, have had a voter fraud problems. w-we really, Tho-those, those problems are very few and far in between. And, certainly, they're the sorts of problems that can be reduced if, state legislatures, and state secretaries of state begin, developing those procedures now.
But, you know, the big takeaway is, you don't wanna be doing this three days from an election. You don't want, as happened in Wisconsin, the governor and the legislature playing a game of check-in about who is or is not going to change the rules. You need folks working now to deal with contingencies for, for elections that are gonna be held, you know, several months away.
Jeffrey Rosen: [00:29:07] Well, the court has decided a series of other cases in addition to the election case, recently. They include Kansas v. Glover, where the Supreme Court, a narrow opinion held that a Kansas police officer have reasonable suspicion to stop a vehicle when he knew nothing more about it than the fact that it's registered owner had a revoked driver's license.
The Comcast Case, where the justices unanimously ruled that a lawsuit brought against the part of the Civil Rights Act that forbids racial discrimination in contracts requires the plaintiff to show, but for causation. In other words, the defendant would have made a different contracting decision were it not for the plaintiff's race.
Kahler against Kansas, a six to three decision, where the Supreme court ruled that a state's failure to allow a mentally ill defendant to raise that kind of defense doesn't violate the constitution. And the Allen and Cooper Case, where a state can't be sued for copyright infringement, because Congress didn't validly abrogate a sovereign immunity.
Which, if any of these cases, were you following, Jaime? And which would you like to highlight for our listeners?
Jaime Santos: [00:30:15] so, I, I was, following several of the discrimination cases. for, for one thing, the, the Comcast Case was about, racial discrimination in private contracts. and Babb versus Wilkie was obviously about the age discrimination in federal public sector employment. and I was kind of, I was falling both of those. 'Cause I want to try to read the tea leaves for the Title Seven cases involving, sexual orientation and gender identity, to see kind of w-what the court says.
And, you know, what I grabbed from those opinions is not a ton. They were very narrow decisions that were based very specifically on the text of those particular statutes. but I think what those opinions underscored for me is the court's continued focus on text. As, I think Justice Kagan is pretty famous for saying, we are all textualists now. but I think what those cases also indicate is that the text... just being textualist doesn't answer the question.
You, you have in, one case, I think Babb versus Wilkie, Justice Alito's textual analysis being basically a tour through various dictionaries. That then he kind of threw together and said, "You know, the question... The answer is clear." And in, in response, you have Justice Thomas saying, "Wait, wait, wait. That's not what the text says." I think you also see that in cases that rely on historical tradition. So, Kahler versus Kansas is a great example of that.
Both the majority and the dissent based their opinion on, you know, following historical tradition. They just disagree w-, about what historical tradition means. And you have, Justice Briar saying, "Justice Kagan, you're, you're... you say you're, you know, following the historical tradition about the insanity defense, you just completely misunderstood all of those old cases." so, I think it makes it really interesting for those interested in, any type of textual analysis, whether it's analysis of prior cases, or analysis of statutes. to see, you know, where does textualism lead you, and it's not always in the same place.
The other thing I found interesting was, I always find, strange bedfellows interesting. So, you had Justice Kagan, you know, joining, the, the five more conservative justices in Khaler versus Kansas. that's not always what you'll see. You also see Justice Briar dissenting in that same case. He's not always great on criminal cases, for criminal defendants. so, so I find those match-ups really, really fascinating. And I do wonder, since Justice Kagan is really a master politician, what that means for the cases that haven't come up yet. And whether she will have built some goodwill, that, that might help out in the future.
Jeffrey Rosen: [00:32:42] Thank you for noting the unexpected alliances. And also the fact that textualism does not always answer questions clearly, and for emphasizing the importance of methodology. Jonathan, Jaime mentioned, in addition to Babb v. Wilkie, which held that Noris Babb could establish that her employer, or the Department of Veterans Affairs violated the Age Discrimination and Employment Act without having to prove that her age was the... but for cause of the decisions.
There w-, there was also one other big decision that I didn't mention in my question to Jamie, Guerrero-Lasprilla versus Barr, where the court ruled in favor of a non-citizen challenging the US Court of Appeals, for the Fifth Circuit's denial of motions to reopen their removal cases. What trends do you see in these reasonably decided cases? And what do you think they say about the cases that we're about to hear?
Jonathan Adler: [00:33:34] Well, I, I think Jaime makes a very good point about the, role of text, i-in, in some of these cases, and about how, some slight differences in text, produce different results in cases that y-, we might otherwise think raise similar issues, right? So, a Babb versus Wilkie, and the Comcast Case are both discrimination cases. they come out nine, zero against the plaintiff in Comcast's. Eight to one, in favor, are largely in favor of the plaintiff, i-in, in Babb versus Wilkie.
And the reason is, is because the relevant textual provisions that define what is that's prohibited are different. Comcast found a but for a causation requirement, for the discrimination plain, Babb versus Wilkie, because, the language says that decisions shall be made free from discrimination justice. So, Alito said, "Well, free from doesn't mean but for causation. It means there's no taint what-whatsoever." And so, even, you know, mixed motive, or things like that, would be covered, at least in terms of being able to, to make the claim. So, I think Jaime's absolutely right to highlight, the, the importance, of, of texts.
I think, just in terms of some of the other recent cases, the Allen vs Cooper case on, state sovereign immunity, I think is particularly interesting. Not because of the substance in the sense that I think most people expected that if the federal government can't abrogate state sovereign immunity for patents, that would be true for copyright as well. Which is basically what the court held. What's really interesting about Allen versus Cooper is because so much time is spent in that case, talking about stare decisis. Justice Kagan, writes, the majority, stressing that, that precedent is deciding the case.
Justice Thomas, who agrees with her opinion, doesn't join parts of her opinions solely. So, he can write separately to say, "Hey, wait a second. Don't... Let's not go overboard on this stare decisis thing." Justice Thomas, as I think listeners know, is the, least, likely to make a decision based purely on stare decisis grounds. Th-the most likely to consider overturning prior precedent. And Justice Briar wrote separately in Allen versus Cooper, to emphasize, that he disagrees with this whole line of, of state sovereign immunity cases, but thinks that it is worth, sticking with stare decisis, and, and deciding, consistent with precedent.
And as we all know, there are a bunch of cases and, and, and doctrines out there, where there is a question about whether or not, the court is going to revisit, eh, if not overturn those precedents. And so, it's interesting to see the justices kinda planting their flag in other subject that matter a-about precedent. You know, Justice Kagan, in particular, who has made this a theme, i-in a, in a, in a bunch of opinions, of this term and last term, you know, saying precedent's really important. and, and it's pretty clear she's doing that because there are other cases out there where she is concerned the court might not be willing to stay with precedent.
Jeffrey Rosen: [00:36:26] Well, the court has agreed to hear a series of cases over a teleconference, and let's talk about some of them now. There are two important cases involving religious liberty. Our Lady of Guadalupe, which asks whether courts can hear employment discrimination claims brought by teachers at Catholic schools.
And Little Sisters of the Poor, which asks whether the expansion of a conscience exemption from the affordable care acts birth control mandate violates the affordable care act, and the laws governing federal administrative agencies. Jamie, which of those cases are you following? And what arguments would you like to highlight?
Jaime Santos: [00:37:05] So, I'm, I'm following the, the contraceptive mandate cases. I think, you know, these, these cases follow on a 2016 decision of the Supreme Court, that looked at whether the religious exemption allowing certain employers to opt out of the ACA's requirement, that health coverage include contraception. The, the... That whether that opt out process was sufficient. And the, the court kind of punted and sent things back. And then, afterwards, the Trump Administration expanded, through rulemaking, the exemption from the contraceptive mandate.
And it created, not just a religious exemption, but also a moral objection that would apply to more employers. yet a couple of states that challenged these rules... And I think, you know, at issue in the case are, as is common in a lot of these types of cases, you know, some really technical questions about whether this complies with the Affordable Care Act.
And whether it complies with the Administrative Procedures Act, like DACA. Those are gonna be pretty technical issues. But I think underlying these cases are really important principles about religious freedom and religious liberties in the workplace. And what happens when those religious freedoms bump up against, requirements that apply to everyone when religious employers are part of the general marketplace.
For quite a while, laws that apply equally to everyone are fine, even if they have, you know, some incidental impact on your religious beliefs. And I think you see two sides of this case. One side saying y-you're participating in the marketplace, you're enjoying all of the wonderful benefits of doing so. So, you can't then, you know, rely solely on your religious beliefs, or even worse, just your own personal moral beliefs to deny your employees rights that they have under federal statutes.
On the other side, you have folks saying, "Listen, you are forcing me to condone something that my deeply held religious or moral convictions tells me is wrong. And you're forcing me to actually play a role in making that wrongful conduct possible." Down the road, you'll also have questions about, you know, right now, this applies to contraception, will it also apply to affording the same sex, benefits in healthcare, in, you know, pensions, all of those things? And I think it indicates the court's deep, deep interest in taking on more of these religious freedom cases. and, and they... It could have enormous implications for many cases to come.
Jeffrey Rosen: [00:39:31] Jonathan, how significant is the expansion of the conscience exemption to include moral as well as religious exemptions? Do you find it justified under the Religious Freedom Restoration Act, and the Patient Protection Act? And m-more broadly, what about the consequences that Jaime notes could this create a great expansion of claims for moral and religious exemptions from generally applicable laws, in the future? Or is this likely to be a, a, a more narrow and technical decision?
Jonathan Adler: [00:40:03] Well, and I think there are a lot of issues buried into this case, that could prevent the court from reaching the full question there. There's a standing e-, question that, that is, built into here. there is this question about, whether or not the Religious Freedom Restoration Act allows the, the government to extend the conscious exception the way it did? And I, and I think that's a, a harder case.
And I think the argument for accommodation here is more of a stretch than it was in, for example, Hobby Lobby, a case from before. one of the things that I think about in The Little Sisters, of the Poor case, that's particularly important, and that we wanna watch for, is that this case, also is, raising the question of whether or not it was appropriate for the lower court to enter a nationwide injunction. And as I think listeners are aware, there has been this ongoing debate about, whether or not lower courts should issue, nationwide injunctions.
And if so, what the standards for that should be. the Trump Administration, has been against the issuance of nationwide injunctions. They... They've argued that, when a district court issues an injunction, it should only apply, essentially, within that court's, jurisdiction, and only for the benefit of the parties to the actual case.
And this has become an increasing concern, because, first, during the Obama Administration, we saw, and the beginning of an increase in the issuing of nationwide injunctions in cases brought against the federal government. And that trend has continued in the Trump Administration. And I, I think there are some justices that have been looking for a vehicle to address that particular question. And I think this case might be, that vehicle. So, I would, I would urge folks to pay attention to that procedural aspect of the case.
You know, and then I think, you know, as Jaime noted, between this case, the Our Lady of Guadalupe case, which is a, a ministerial exception case, and then some cases that are on the docket for next term, we definitely see a court that is more interested in fleshing out and perhaps reconsidering aspects of religious liberty, jurisprudence than we have in some time.
And, you know, this is an area th-, where several of the justices clearly have, strong opinions about where they would like to see the law to go. And so, it's quite possible that we could see the court, in a wide range of contexts, moving towards more aggressive protection, of religious liberty and religious exercise, than we've seen historically.
Jeffrey Rosen: [00:42:27] Out of the 13 cases the court has agreed to here in May, two involve faithless electors. There's Chiafalo versus Washington, whether state faithless electoral laws, which require presidential electors to vote the way that state law directs, are constitutional. And there's Colorado Department of State versus Baca, whether state faithless electoral laws are constitutional as well. Jaime, what can you tell us about those cases, and the arguments that they raised?
Jaime Santos: [00:42:57] This... So, the cases are, are basically about whether, states can require electors, sub-members of the, of the electoral college to vote in line with the popular vote of the state. Or whether electors, are free to vote their conscience, or whether they could be penalized, criminally or otherwise, if they vote their conscience.
I think this is a super fascinating case when you look at kind of originalism. Because from everything that I have seen, you know, the entire purpose of the electoral college was to be something different from just allowing popular vote to rule. so, so I think it could be really fascinating to see what the lineups are, in this case.
I think it's also really critical that the Supreme Court is hearing this in may. This is one of the cases that it decided not to put off until next term. And I think, for very good reason, the court does not want to be deciding a hot button political issue that can directly impact the election right before the election happens. Because, as we know, that would violate the Purcell Principle.
The other thing I wanted to just... If I might briefly note, the... about what Jonathan said about nationwide injunctions. He's absolutely right that many members of this court have been very hostile to nationwide injunctions, particularly those enjoining Trump Administration policies and priorities.
I do want to note, just to nudge a little bit on that though, that this court might feel differently about nationwide injunctions in a year or two, when there may be a democratic administration in office doing more liberal things. And you have a judiciary, filled to the brim, with conservative appointees, who might be more inclined to be, enjoining those, policies on a nationwide basis. so, so, I do wonder if any part of the court thinks, "Wait a minute, getting what I asked for might not be a good idea."
Jeffrey Rosen: [00:44:45] Jonathan, responses to that thought about nationwide injunctions. And then, tell us your thoughts on the faithless electoral cases. Surely, it's correct, as an originalist matter, as, as all We the People listeners know, that the electoral college was originally intended to serve a very different role than the one it does now.
With independent Solans and [inaudible 00:46:54], making decisions about the wisest candidates, heedless of the pressures of the mob, but we have a very different system now. Is it possible that any of the originalist justices might vote in favor of the original understanding, and against the faithless elector laws? And how do you expect these cases to come out?
Jonathan Adler: [00:45:23] well, so, fir-first of all, on nationwide injunctions, I think it is right that, you know, a lot of people that, loved nationwide injunctions when Republican state attorneys general were filing cases against the Obama Administration, hate them now that they're being filed against the Trump Administration.
But I, I think the fact that they've been used against both the Democratic and a Republican Administration, with ever increasing frequency, I think does allow, folks to, to step back, I, at least, I hope, and decide when they are, justifiable and when they are not.
And, you know, we've seen the, the court, address these sorts of concerns in ways that, cut against what you might expect to be, the immediate political preferences of justices before. my favorite example of this is the, Fox Television versus Federal Communications decision, that occurred in the beginning of 2009.
And that was a decision about how easy or difficult it should be for federal agencies to change policy. And Justice Scalia wrote a five, four opinion saying, "It should be easier for an... agencies to change policy." And, Justice Briar wrote a dissent for the former liberal justices, saying it should be more difficult. And that decision came out, literally, at the very beginning of the Obama Administration.
And so, the justices were following their jurisprudential commitments, not positions that would benefit their... of the political parties we would expect them to have sympathy for. I, I hope that that is how justices approach, the nationwide injunction, question as well. And I do think that, that e-even if for no other reason, it would be nice to have some certainty on that.
On faithless electors. I think it's a hard case. certainly, Jeff, as you note, that, that the idea was that the electors would be making these judgements. of course, back then, you didn't have, you know, nationwide, [laughs], televised primary debates, or, or, or candidate debates. You didn't have, the, the... all the televised interviews. You didn't have elections the way we do now. And you didn't have states trying to bind electors, the way they do now.
And so, it's not merely a question of what the founders thought the electoral college was doing, but also the extent to which that intention prohibits states from making changes. And I, and I think it's a genuinely hard question. I think that, you know, from my take on, I do think the argument that electors do have, the ability to, vote as they would, like, I, I think that's the slightly stronger argument, but I do think it's a, it's a difficult case.
And I think that the justices will certainly be aware that, if not this year, at some point, in the not too distant future, we could have a situation in which it matters. And I think that's gonna weigh on them. And I think it makes it a hard case. But again, as Jaime noted, i-it's a much better thing that they decided now, rather than in the context of, you know, an election eve, litigation, or, or even worse, some kind of Bush v. Gore, you know, after the fact controversy.
Jeffrey Rosen: [00:48:14] Well, there's one other pair of cases that has a time component, and those are the subpoena cases. Trump versus Vance, whether the Manhattan District Attorney can get the President's tax returns, as part of the state grand jury investigation.
And Trump versus Mazars, and Trump versus Deutsche Bank, whether congressional committees have the authority to issue subpoenas to the President's accountant and creditors for financial records belonging to the president and his business entities.
Jamie, your thoughts on the legal issues in these case, and how the court may approach them.
Jaime Santos: [00:48:48] Sure. Yeah. I, I mean, I think these cases are really interesting, 'cause I think the probably public conventional wisdom is, you know, the cases will have to come out the same way, because they involve the same issue. But I think, you know, that that's clearly not necessarily true.
You know, there's very different implications of a state criminal grand jury asking for information about the President's finances, as a, a method of investigating potential criminal violations of law. And, between the House of Representatives, you know, asking for the president's financial information, purportedly in its lawmaking function.
Th-... a couple other pieces of this case that are interesting to me is, you know, o-one thing is that the House of Representatives rationale for requesting the President's financial information has kind of shifted a bit, f-from the beginning through the end of this litigation.
And I think that somewhat mirrors w-, some of what we've seen in the litigation, like the c-, the census litigation, and things like that. Where, you know, you should really have your ducks in a row, and have a consistent rationale the whole time.
Otherwise, courts, might look at certain requests, or certain government action with a little more skepticism. th-that said, the Congress's authority is really vast and, and much broader than, cabined agencies, which have less authority to act. So, so it may not matter.
Another piece of this that's really interesting to me is, I think if you asked me a year ago, I would say, "This is such a crital... c-critical case. Its resolution will deeply impact the election." It is just such a different world right now. And it's hard to see this ultimately mattering. Either, you know, because I, I kind of doubt that Congress or grand jury would have enough time to actually do anything before the election, given the pandemic.
And also because the economy has completely tanked. 16 million people are out of a job, tens of thousands of Americans have died. And it's hard to see that as not having the bigger impact on the election. So, I kind of wonder if this is just one of those, you know, the world has changed and it's not gonna matter as much as I thought.
Jeffrey Rosen: [00:50:48] Jonathan, your thoughts on the subpoena cases that the court's about to design.
Jonathan Adler: [00:50:54] Well, I mean, these cases, like the faithless elector cases, have a, a time sensitivity that, you know, more of the other cases don't have. In that we generally expect that these cases will determine whether or not, certain information about President Trump's financial arrangements will be made public. And, certainly, that is information, that voters, may care about.
And, allowing the, the president to kind of, kind of run out the clock on these cases, until after the election is something that I thi-... a, a scenario that I think the court was trying to avoid. So, I think these cases and the faithless electoral cases may in fact be the reason why the court decided to have, telephonic arguments rather than just rescheduling everything, for next term.
I think, in general, the arguments in favor of, obtaining this information in all three cases, are stronger than the arguments, seeking to prevent, disclosure. and I think that is probably most true, in, in Trump versus Vance. But I think, in all three cases, you know, there is an argument, for disclosure. There, there is a wrinkle in these ca-, in, in these cases. Which is, whether or not it matters what the posture is, eh, and which party it is that is seeking court intervention.
You know, there are, there are some that think that these are the sorts of cases that raise political question concerns. and if that were true, then, ju-, there are, there are justices who might feel both that, the house can't go to courts saying, "Please enforce the subpoena against, the President." But, simultaneously, the President can't go to the courts, asking courts to quash the subpoenas, such as aga-, subpoenas against, private parties, like, eh, Mazars, or, or Deutsche Bank.
And, and so, I think o-, you know, one question in, in these cases, is to what extent the court sees itself as needing to resolve this question as the court, to kind of settle it, eh, or to what extent the court feels that it's... i-it should be, or at least some of the justices feel that the court should as much as possible, step back, eh, and force the political branches to fight it out. And, and that's something that I will certainly be, be paying attention to in the oral arguments.
Jeffrey Rosen: [00:53:03] Well, it's time for closing arguments in this illuminating discussion. Jamie, are there any other of the 13 cases the court will hear in May, that you're watching, and would like to highlight for our listeners?
Jaime Santos: [00:53:13] So, I'm going to highlight something that I think that Jonathan actually probably wants to talk about too, which is the McGirt versus Oklahoma case. You could characterize this case as the question presented is whether half of Oklahoma is an Indian reservation. And it's a case that was originally heard, at a time where Justice Gorsuch had to be recused. Because it came from the 10th circuit, and he was on the 10th circuit at the time. But it could have just really massive implications for, Oklahoma, for criminal justice in Oklahoma.
And I think it's interesting to me because you have a couple of justices who have this very kind of a long standing commitment to saying, "You know, historical practice be damned, we're gonna get the law right." And on the other hand, you've got a potentially compelling case for the notion that half of Oklahoma is an Indian reservation. And so, if you, you have a kind of consistent methodology, there's a strong, compelling case for saying, you know, that the Oklahoma does not win here. On the other hand, it's just the practical implications of the case are so massive that it is hard to see five justices signing on to an opinion that would endorse that view.
Jeffrey Rosen: [00:54:20] Wow, thank you for interesting us, in that fascinating case. Jonathan, and the last word is to you, final thoughts on McGirt versus Oklahoma, or any other cases that you're watching in May.
Jonathan Adler: [00:54:32] I-... You know, this ca-, this case really is, is fascinating. You know, initially, th-, when the, the first case was heard, the case is called Murphy, that was originally argued last term. Judge... Justice Gorsuch has recused. they don't decide the case. They say they're gonna hear argument again. and so, the normal assumption is, well that's because the justices were split four to four. and that may be what happened, although Justice Gorsuch would still be recused.
Of course, the other possibility is that a majority of the justices thought that Oklahoma, needed to lose the case, or that Oklahoma had, the weaker, arguments, and just were not ready to issue that opinion. and until the, unfortunately, this other case, the McGirt case that essentially raises the same issue, a petition was filed there. And so, now, they can hear the case, with, with the full compliment of nine.
And it
