Podcast Transcript: Supreme Court Term Preview

In this episode, we preview the Supreme Court's upcoming October 2018 term which begins on Monday, October 1st.

Click here to listen to the full podcast.

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. These are polarized times. It's all the more important that we the people bring together the best conservative libertarian and progressive voices in the country not for political but for constitutional debate. And dear We the people listeners, rest assured that we will continue to hold that light in the weeks, months and years ahead. And in this episode we preview the Supreme Court's upcoming October 2018 term which begins on Monday October 1st. And here to discuss the new term are two of our dream team. We the People repeat guests visitors and friends of the National Constitution Center and two of America's leading Supreme Court commentators and scholars. Brianne Gorod is chief counsel at the Constitutional Accountability Center and she is here with me at [a] satellite studio in Washington D.C. Brianne it's such an honor to have you back.

Brianne Gorod: [00:01:12] Thank you for having me.

Rosen: [00:01:13] And Ilya Shapiro is senior fellow in constitutional studies at the Cato Institute and editor in chief of the Cato Supreme Court review. He is not in Washington D.C. but in wonderful Austin Texas and Ilya it's great to have you back as well.

Ilya Shapiro: [00:01:26] Good to be on.

Rosen: [00:01:28] Let us begin with some cases that may seem wonky but that makes them all the more exciting to jump into. And they may lead to some surprising areas of constitutional agreement and disagreement. We're going to start with a case that raises the question Should the excessive fines clause of the Eighth Amendment apply against the states. We the People listeners, if you went to law school you know that that's really highly important and interesting because only three clauses including the Eighth Amendment excessive fines clauses has not been applied against the states. And the question here is should it apply. So first to set us up Brianne you can tell us a bit about the facts. This is a case involving a gentleman who was arrested on conspiracy charges for heroin. He pled guilty and had a six year sentence. And tell us about the rest of the facts of the case and whether or not you think that the excessive fines clauses should apply against the states.

Gorod: [00:02:34] Sure. This Is a case about Tyson Timbs, as you said he pled guilty to a drug offense in Indiana. He was sentenced to home detention followed by probation. But that wasn't the end of his story. The state then authorized a civil forfeiture action to seize ownership of his personal vehicle which was worth four times more than the maximum fine he could have received for his crime simply because he drove the vehicle while committing his offense. An Indiana trial court said that this was unconstitutional under the Eighth Amendment excessive fines clause. When people think about the 8th amendment they probably think about cruel and unusual punishment but it also prohibits excessive fines from being imposed and what the Indiana trial court said was that forfeiting the vehicle would be grossly disproportional to the gravity of his offense. But the Indiana Supreme Court disagreed and not because it said the fine was commensurate with the offense but rather because it concluded that Indiana simply doesn't have to comply with the excessive fines clause. And that's because as you mentioned the Supreme Court has never held that the excessive fines clause is incorporated against the states. It's never held that the states have to comply with this clause. And that's a really kind of stunning thing 150 years after the birth of the 14th Amendment because the 14th Amendment was a response to notorious violations of fundamental liberties by the states before and after the Civil War. And in fact treating excessive fines as a second class right really makes no sense when you look at the history of the 14th Amendment which was adopted in part in response to southern states using fines to suppress African-Americans. Indeed it would be particularly anomalous to say that the other provisions of the Eighth Amendment are incorporated but the excessive fines clause isn't because the southern states often used fines in tandem with corporal punishment and other crimes. So yes I think the Supreme Court should definitely hold that the Eighth Amendment excessive fines clause is incorporated against the states and it'll be really interesting to see what the court does with this case.

Rosen: [00:04:34] Thank you so much for that. Ilya I cannot wait to hear what you and Cato think about this case. There are a series of amicus briefs on both sides filed by scholars including some—John Bessler and John Stinneford—on behalf of neither party who note that the Virginia Declaration of Rights which influenced the Bill of Rights explicitly provided that excessive bail ought not to be required nor excessive fines imposed so did the state- the Revolutionary era state constitutions prohibit excessive fines and is that relevant to the question of whether the federal clause should be incorporated?

Shapiro: [00:05:09] Well my view is that that's an interesting historical point. But what we need to be doing originalism at the right time meaning at the ratification of the 14th Amendment. So in 1868—and is the prohibition of excessive fines something that the reconstruction era Congress was thinking about? And I think it was. That's not what we filed on. Cato joined a brief led by the DKT Liberty Project also joined by the Goldwater Institute, the due process Institute, a couple others but we were talking more about civil asset forfeiture and how that undermines due rights and due process and tramples on property rights because that's sort of the background on this case. Civil asset forfeiture is a very hot policy topic and one that cuts across ideological or jurisprudential opponents. And so we do hope Cato does hope that the Court incorporates or rather applies the excessive fines clause. My personal preference would be to do it via the privileges or immunities clause rather than due process. But I don't think this is the case where the court other than Thomas perhaps motioning in that direction possibly joined by Gorsuch, I don't think they're going to reconsider that whole doctrine.

Rosen: [00:06:29] Wonderful. This is an exciting opportunity to talk Brianne and Ilya about Cato and CAC's vision of the privileges or immunities clause. The Constitutional Accountability Center invokes the text and history of the 14th Amendment and argues that the Privileges or Immunities Clause did mean to incorporate most of the provisions of the original Bill of Rights and has cited, the work of Akhil Amar a friend of the Constitution Center. Brianne does CAC and does Akhil Amar believe that the Privileges or Immunities Clause incorporated all of the provisions of the first eight amendments or are there any that the 14th amendment through the privileges or immunities clause should not incorporate?

Gorod: [00:07:11] Well I think Ilya is right that the court is probably not going to get into that debate in this case and I think luckily for those who are concerned about civil forfeiture and who think that the excessive fines clause should apply to the states there is really good history in the Fourth Amendment which makes clear that this provision of the Constitution clearly should apply to the states and that the Indiana Supreme Court was wrong to suggest that it can simply disregard this important constitutional protection.

Rosen: [00:07:40] Great. Ilya, understood from both of you that the court is not going to gauge it although as you said Justice Thomas has expressed some interest in incorporating and resurrecting the Privileges or Immunities Clause and Justice Gorsuch might be interested too but as an original matter do you agree with Akhil Amar or not that the 14th Amendment incorporated the individual rights provisions of the Bill of Rights but not the structural provision so Akhil says, and this is, you know not a mainstream view but it's an influential one that the Establishment Clause for example might not incorporate against the states because the establishment clause was a federalism provision that prevented the federal government from disestablishing Unitarianism in Massachusetts. But I think Akhil would say that the excessive fines clause to the degree that it's a restriction on government power would incorporate. What are your views as an original matter about how much of the Bill of Rights is incorporated through the privileges or immunities clause?

Shapiro: [00:08:33] Well I have yet another view on this and that as an original matter incorporation itself. That concept is a constitutional malapropism that is if the framers of the 14th Amendment had wanted simply to enumerate which of the Bill of Rights was now incorporated against or applied to the states. They could have done so in so many words but they did not. Instead they talked about due process equal protection and privileges or immunities which are both greater than and less than what the Bill of Rights is a lot of overlap but not necessarily—and Akhil Amar I think agrees with this. And so he says that the Establishment Clause was not one that they that's given that viewpoint was to be applied rather than incorporated to the states. I think that's probably right but not because of the structure vs. rights provision but simply because of the meaning of privileges or immunities which is sort of mid-19th century speak for natural rights that didn't include certain things that were in the Bill of Rights.

Rosen: [00:09:41] Thanks so much for that. Brianne: What do you believe that the history of the 14th Amendment says about how much of the Bill of Rights should incorporate.

Gorod: [00:09:51] Well I think when you look at the history of the 14th amendment it was adopted against the backdrop of a long history of fundamental infringement infringement of fundamental liberties by the states both before and after the Civil War. And so I think the framers of the 14th Amendment were keenly aware of this. It was clear to the ratifying public at the time that the 14th Amendment was adopted that these infringements were going on in the 14th Amendment was very much a response to them.

Rosen: [00:10:18] Thank you for that. Dear we the people listeners I know this is wonky but it's hugely important—this was the biggest constitutional debate of the 20th century. How much of the bill of rights incorporated through the due process clause. And if you'd like some follow up reading skills work is wonderful as is that of Michael Kent Curtis. No state shall abridge. And Kurt Lash has a definitive set of work on the Privileges or Immunities Clause [which] may not come up before the court. Go ahead Ilya.

Shapiro: [00:10:45] You know I'm pleased to announce that Josh Blackman and I have a piece coming out in the George Mason Law Review pursuant to this conference that where Brianne, actually you also spoke this past Friday celebrating the 150 anniversary of the 14th Amendment. So Josh and I update our previous article from 2010 on the eve of McDonald versus City of Chicago that took up squarely this question of privileges or immunities versus due process. And so we're updating it for what courts have said in the meantime. What prospects are in all of that and it's it's a it's a short piece and it should be we think readable.

Rosen: [00:11:23] I'm so excited that you gave a shout out to that very important conference. We the People listeners check it out online. It was at the George Mason Law School on the 14th Amendment and it was organized by none other than Sheldon Gilbert who is about to start next week at the National Constitution Center as our new Senior Fellow for Constitutional Studies. Sheldon is a great scholar of the Constitution. He was one of my all time favorite students at G.W. Law School and I'm so excited that he and his family have chosen to come to Philly to help us spread constitutional rights. You'll be hearing more from him as well. OK. We turn now to another case that seems wonky but is really interesting. Textually. And it's called Gamble versus United States and it raises the question of whether the Supreme Court should overrule the separate sovereigns exception to the double jeopardy clause. Brianne: What is the separate sovereigns exception. And how is it raised in this case.

Gorod: [00:12:19] Sure. So you know what the Fifth Amendment says is that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. So what that means is generally you can't be prosecuted twice or three times for more for the same offense. But what the court, the Supreme Court has long said, is that successive prosecutions are allowed if they're undertaken by separate sovereigns. So for example the state government can prosecute you and then the federal government can prosecute you after that. And that's okay. And that's exactly what happened in this case. Terence Gamble was prosecuted by the state of Alabama for possessing marijuana and for being a felon in possession of a firearm while the state's prosecution was ongoing. The federal government then charged gambol for the same offense under federal law. Being a felon in possession of a firearm. This federal charge was based on the exact same incident that gave rise to the state offense. So what Gamble said to the District Court was this violates my Fifth Amendment right against being placed twice in jeopardy for the same crime. He moved to dismiss his federal indictment on that ground. And what the district court says was said was sorry I can't help you. This is Supreme Court doctrine until and unless the Supreme Court overturns that doctrine your double jeopardy claim must fail. And what's interesting is a couple of years ago Justice Ginsburg wrote a concurrence joined actually by Justice Thomas suggesting that the court should take a fresh look at this dual sovereignty exception to the double jeopardy clause. She pointed out the double jeopardy clause is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct. And she pointed out the dual sovereignty exception doesn't serve that purpose. This is a particularly exciting case for me because that Constitutionaly Accountability Center got to file a brief with Ilya, Cato Institute and also the ACLU urging the court to overrule the dual sovereignty exception. As we argue in our brief on this though dual sovereignty exception is inconsistent with the text in the history and the purpose of the double jeopardy clause. And coming back to incorporation we make the point that there have been significant changes in the law since the court last visited this issue namely that the double jeopardy clause has since been incorporated against the states. The last time the Court considered this case this issue that the double jeopardy clause hadn't been incorporated against the states. And so the rule arguably made some sense if the states could prosecute you as many times as they wanted for the same offense. It wasn't that surprising if the federal government could prosecute you after the state government did but now that the court has recognized that the double jeopardy clause does apply to the states. It makes no sense to allow successive prosecutions even if they're brought separately by the federal government and the state government.

Rosen: [00:15:02] That is wonderful that you have filed a brief with Ilya and Cato as long as well as the ACLU and it's an inspiring example of constitutional bipartisanship. Ilya: Tell us more about why in your brief you argue that the double jeopardy clause separate sovereigns exception is not consistent with the text history or purpose of the double jeopardy clause.

Shapiro: [00:15:25] Well Jeff I don't think I have much to add to Brianne's summary of our brief. I just think that originally it's not even a question of incorporation because originally there were so few federal crimes that to ask the question of whether states and the federal government can prosecute the same thing is it would have been laughable because you know in what context would the limited number of federal client crimes overlap with the run of the mill criminal law in the states. It's only since we've had the expansion of the federal government including federal jurisdiction over criminal law that we even run into this problem. But I do agree that it's no consolation to say that you have a constitutional right against double jeopardy but by the way you know it's a completely separate sovereign that is now taking a second bite at the apple. But we'll see what kind of briefs are filed. On the other side supporting the government. So far we have an interesting collection of amicus briefs supportingMr. Gamble including not just the joint brain trust of C.A.C., Cato and ACLU but one by Senator Orrin Hatch written by Adam Unikowsky, who's a brilliant advocate at Jenner & Block, talking about this issue of the federalization of the criminal law and how that has undermined the rationale for the dual sovereignty doctrine.

Rosen: [00:16:48] Fascinating. Brianne: in these two cases suggests that these bipartisan coalitions about 14th amendment text and history are really making some influence on the court. Why was it that it took the court a while to incorporate the double jeopardy clause and what does it say that C.A.C. and Cato both agreed that the dual sovereignty exemption should be overruled.

Gorod: [00:17:13] I think you're exactly right that the 14th Amendment and the incorporations issues any kind of criminal procedure issues more generally have provided an opportunity for groups that may not agree on everything to come together. What I think is particularly interesting about tems and gambol is the important role that the constitutional text in history and values play in these cases and the arguments that we and cadeau and other groups have made. You know telling the court if you look at this history you look at what the founders were trying to accomplish when they adopted the Fifth Amendment and Gamble and the 14th Amendment in Tam's. The answers are really quite clear.

Rosen: [00:17:51] Wonderful. Ilya anything coming down the pike involving incorporation including the unincorporated provisions like other Third Amendment cases bubbling up in the past and what can we expect this text and history push to yield over the coming years.

Shapiro: [00:18:08] Yeah. That reminds me of one of my favorite Onion articles society for the preservation of the Third Amendment celebrates another successful year. Perhaps not as good as “Supreme Court Rules Supreme Court Rules,” but setting that aside. I don't know. I mean there's not that many provisions that have been incorporated at this point. One is the unanimity of juries to get a criminal conviction. There are only two states Oregon and Louisiana that don't require unanimity. So it's sort of been taking care of itself legislatively what the court did turned down. I think a case both out of Oregon and out of Louisiana in the last decade. I think Louisiana is moving to change legislatively as well anyway. But there are not too many of these things left. So it's not exactly a burning issue I think we'll see more development on the Privileges or Immunities methodological front in future unenumerated rights cases than we will in terms of incorporating the explicit protections of the Bill of Rights.

Rosen: [00:19:12] Because you made the first and excellent Third Amendment joke of this week. Just have just thinking aloud is there any reason that the Third Amendment should not incorporate ? Maybe is that another structural prohibition on government power rather than an individual right? I'm just thinking aloud here.

Gorod: [00:19:29] I mean if the court weren't more into a corporation I think that is probably the argument that it would adopt. But I think the other way to look at it is the founders were deeply concerned about individual liberties and protections in the Third Amendment were just another way of protecting individuals in their homes and there's no real reason why that shouldn't be incorporated other than his Ilya points out there is just not a lot of need for the court to address it.

Rosen: [00:19:53] Great. Ilya Do you think the Third Amendment should incorporate.

Shapiro: [00:19:57] Well I'd have to think about the speeches of Senator Josh Howard and Representative John Bingham the leading proponent Sherpa's of the 14th Amendment in the 39 Congress to see what they thought about housing troops or police or other state and local law enforcement agents. I don't know if that was a concern of the reconstruction efforts. Not like the freedmen or meet union sympathizers in the south or whoever was being forced to house these these folks. These law enforcement agents while well nobody else was or anything like that so it probably wasn't an explicit concern. So we'd have to think about whether it's one of the natural rights I suppose that we inherently possess not to have government agents forcibly occupying our homes.

Rosen: [00:20:46] Fascinating. And we do know that the 14th Amendment was ratified at gunpoint. The Confederate States were not allowed back in unless they ratified and there's a whole series of student notes and scholarly articles trying to translate the Third Amendment's prohibition on excessive governmental power to modern controversies ranging from reproductive autonomy to other very important issues—so We the People listeners, understand that these long forgotten constitutional provisions can have new relevance. The courts are open to these kind of arguments and that's why it's so crucially important that you educate yourself about the history of the 14th Amendment as well as the original bill of rights and try to think about how to translate its original meaning into a changing world. OK. We now come to a really wonky case and Brianne—you can tell me whether or not we should get excited about it. It's the case raising the question does the Fair Debt Collection Practices Act apply to non-judicial foreclosure proceedings. It's called Obdusky versus McCarthy. Do you want to spend a bit on this or not.

Gorod: [00:21:55] Sure. You know I think it is an important case. You know people may not think a lot about the Fair Debt Collection Practices Act but it's actually an important law that Congress passed to protect consumers to protect individuals and make sure that debt collectors didn't engage in abusive practices when they collect debts don't intimidate people don't harass them don't threaten them. And you know the question this case presents is whether as you say the laws protections apply to non-judicial foreclosure. So the process by which a trustee is authorized to take and sell a consumer's home to fill an unpaid home mortgage. And this is an incredibly important question. You know we're still in the wake of the great financial crisis of 2008 which lots of people lost their homes. Foreclosures are continuing at very high rates. And so this question about whether people are protected by this law is incredibly important. And I think this case is just a reminder that even though the court. Not every case the court hears is a blockbuster case that's going to make huge headlines. It can be incredibly important to individuals. What the case what the court ends up deciding.

Rosen: [00:23:06] Thank you for exciting me and We the People listeners about the importance of this case. C.A.C. filed a brief with members of Congress talking about how in response to abusive and unfair debt collection practices in '75 Congress passed this law and you make an argument for why it is should be applied to a non-judicial foreclosure proceedings. In this case. The Respondents disagree. Ilya: What is your view on the merits of this case.

Shapiro: [00:23:34] I'm afraid this is one I have really not been looking at so unusually for me, I'm not going to opine.

Rosen: [00:23:43] If there is an honorable constitutional pass that all of us can take his law school class. And definitely when it comes to We The People podcasts. And so it's so noted. But We the People listeners, for real extra credit and you know what if you write to me I will send you a note of appreciation—find the respondents brief in Obdusky versus McCarthy, compare it with the C.A.C. brief, and tell me which one you find more persuasive—this is exactly what we're supposed to be doing as citizens. And here's some real homework and Brianne just told us why it's important—it's a law that Congress passed so figure it out yourself. This is technical but there are good arguments on both sides. But if you take the time to form a educated opinion you will have the gratitude of me and your fellow We the People listeners. Okay now we come to Knick versus Scott. What a jazzy boffo name for a case name and it has to do with an incredibly important provision a hot button issue: the Takings Clause. Brianne: The question is—the technical version is—should the Supreme Court reconsider a case called Williamson County which requires property owners to exhaust state court remedies to ripen federal takings claims. And then there's a second issue too. How would you state as clearly as possible the central issue in this in this case?

Gorod: [00:25:02] Sure. So the question in this case is whether property owners essentially have to pursue remedies in state court before bringing takings claims in federal court so the takings clause in the Constitution makes it unlawful for a person's private property to be taken unless they're compensated. And so the question is to bring this claim in federal court that you haven't been justly compensated for taking, do you first have to pursue state compensation remedies? And you know those who support this rule and think this case shouldn't be overturned say you know this makes total sense. The takings clause hasn't been violated unless there wasn't compensation and so you need to go through the state compensation process and see whether you're going to be compensated or not. And a number of states have filed in this case saying that this rule respects and upholds the sovereignty of the states. So this is going to be a you know interesting takings case. It has federalism overtones, It will be interesting to see how the court particularly in the absence of Justice Kennedy deals with this case.

Rosen: [00:26:02] Thank you for that. Ilya, Cato did file a brief in this case and you were counsel of record and you say that stare decisis is important but this Williamson case should be overturned. Tell us why the case is important and how you think it should be decided.

Shapiro: [00:26:19] Yeah the takings clause of the Fifth Amendment is one of the few constitutional rights that you have that you have to bring your claim in state court. It's not like if you're getting censored by the government or the government is disarming you, you have to bring those First and Second Amendment claims respectively in state court. No. You can file right in your federal district court and away you go. But here because of this anomalous Williamson County rule from 1985, this doctrine that you have to exhaust your state claims, you don't have that choice and one can certainly argue federalism, and the more sophisticated way of arguing this is that state judges are more familiar with local zoning rules, easements, property boards, other these kind of like feet on the ground sense of how local and state laws work more than than federal courts might. But I think that's not realistic anymore certainly, even if it ever was, because federal district judges are right there in those same communities and in fact might be more independen,t not as reliant on dealing with the state- the zoning boards and other relevant local entities and at the end of the day if it's the state that you're arguing that the property owner is arguing is violating your rights, well that state court is part of the state government that's trying to do that. Well the Federal Court is separate. So this will indeed I think be the biggest property rights case of the term even though it's a process one that is again whether you can vindicate your rights in federal courts rather than the meaning of public use when the government is exercising eminent domain or something. And the other tidbit that adds to interest in this case is that it involves private cemeteries. That's the underlying easement or inspection regime ordinance from this little Township in Pennsylvania that's at issue and so we're going to have lots of puns about interring the Williamson County Board or this or that rule is dead already or you know walking dead reviving etc. it lends itself to a lot of that but it's one way to make these somewhat dry somewhat technical arguments really come alive and you know often the process will decide the end result. And from my point of view I think it's important to allow property owners to avoid kind of the Kafkaesque situation of going through the state courts, being forced to go to the state courts, having the state court rule against them and then the a federal court telling them well res judicata meaning the case is already- the issue has already been resolved so they're blocked from the federal courthouse steps altogether. That to me is the fundamental anomaly when we're talking about constitutional rights.

Rosen: [00:29:20] Thank you so much for those thenatic puns. I just learned the word thenatic from dictionary.com which has a great word of the day and thenatic showed up recently. And we the people listeners you've heard Brianne and Ilya agree on this one. If you do check out the respondents brief which says that the just compensation clause doesn't confer a right to private property outright, it only gives the right to just compensation for property lawfully taken for public use and that right is secured if the property owner has a reasonable and adequate means to recover compensation. OK now we come to this is an interesting sleeper as well perhaps, Nieves versus Bartlett a first amendment retaliatory arrest claim. Does probable cause defeat a First Amendment retaliatory arrest claim?Brianne what is a First Amendment retaliatory arrest claim and does probable cause defeat it?

Gorod: [00:30:15] Sure. So first a first Amendment retaliatory arrest claim is a claim that a police officer arrested you not because you actually did something wrong or violated the law but because they are unhappy with something that you said and 42 USC Section 1983 often just called Section 1983 is an important federal law that gives individuals the right to sue when their constitutional rights have been violated. So imagine you're a person on the street. You see a police officer, you say something to him that he doesn't like and then he sees you jaywalking so he has probable cause to arrest you. But he didn't do it because of the jaywalking, he did it because of what you said. Can you sue him? That's essentially the question that the court will be answering in this case. And what the court will have to decide is whether that existence of probable cause is sufficient to bar a claim. In this case an individual was arrested after telling a police officer that he didn't want to talk to him and the police officer- the state trooper said after arresting him, bet you wish you would have talked to me now. And so the district court the first court said that the fact that the officer the trooper had probable cause to arrest him barred his claim, he couldn't bring it. But the Ninth Circuit disagreed and said a plaintiff can still prevail on a claim of retaliatory arrest even if the officers had probable cause to make an arrest. And I think that's where the court should ultimately come out. I think it's important to recognize what Section 1983 is doing, why Congress passed this critically important law and it was designed to protect fundamental constitutional rights. There was a case a year or so ago where Justice Thomas said that there should be a probable cause element in retaliatory arrest case and he looked to the common law of torts in justifying that result. And what that misses is that the common law of torts weren't designed to reflect fundamental constitutional rights so the same interests didn't exist there that existed when Congress passed Section 1983.

Rosen: [00:32:21] Thank you for that. Ilya, do you think that the retaliatory arrest claim trumps probable cause and other broader First Amendment implications for this case about how the government can or can't retaliate against people for their free speech?

Shapiro: [00:32:35] Yeah I'm very wary of the government retaliating for free speech. I think the First Amendment is one of the areas where in the last 20 years the court has uniformly been very protective of individual rights. I want to ask Brianne since I haven't looked too closely at this case but I wonder just this past term the court decided in the Lozman case- seemingly the same issue came up in a different context. It was kind of a gadfly complainer to a town council who the town councilors had arrested because they basically didn't like them and the court ruled that yeah, he has his rights and the police should need probable cause, not just the say-so of the town councilor to arrest him and just speaking his mind is is not enough. So what more is there to do in this area, Brianne and why did they take this case?

Gorod: [00:33:30] Yeah I think that's a great question. So you know in Lozman the court definitely teed up this question but ultimately punted on whether probable cause is an element in the mine run of retaliatory arrest case. You know what they pointed to there was they said this case is different than most cases in part because that case involved high level city policymakers, it wasn't just a police officer on the beat. That was the case that I had in mind when I talked about Justice Thomas because in that case he said he would have answered the question presented and would've decided that probable cause was a requirement. So I think the court will probably actually decide that issue squarely in this case.

Rosen: [00:34:12] Thanks for that great discussion on this interesting and important case. Here's another one that could raise fundamental questions of administrative law and the future of the regulatory state. It's called Gundy versus United States and it raises the question of the non delegation doctrine in the context of whether the federal sex offender registration and notification act's delegation of authority to the attorney general to issue regulations violates the non delegation doctrine. Ilya what is the non delegation doctrine? Why Is it one of the hottest questions in constitutional law? I think it came up on our great We the People podcast last week about the future of the administrative state and what should happen in this case?

Shapiro: [00:34:50] Well Jeff you might recall- the listeners might recall from high school civics that the Constitution separates the powers of the federal government among three coordinate branches and you may also recall perhaps from grade school, the Schoolhouse Rock, that a bill becomes a law after it's passed by two houses in Congress and signed by the president. Now unfortunately for Herman Gundy things are not so straightforward. He stands convicted of violating a law that for all intents and purposes doesn't exist. Let me explain. The sex offender registry law, SORNA, a federal law which set up a national system of sex offender registration, made it a crime for sex offenders to fail to register when they move. Well when serving time on a federal drug charge Gundy was transferred from Pennsylvania, from a prison in Pennsylvania, to a halfway house in Brooklyn and according to the government, that counted as interstate travel sufficient to trigger reporting obligations of which he was never advised because it turns out that Congress delegated the question of who would have to register to the attorney general and Gundy was convicted before that particular delegation. The attorney general later delegated that- sorry he wrote in a regulation that Gundy would have to re-register even though his sex offense is among those that pre-date SORNA. And recall he was being moved from a prison to a halfway house. This is not a kind of voluntary or purely voluntary move that he's making. So there's elements of retroactivity, there's elements o,f does the regulation apply when you're in the custody of the federal or state prisons? And again can those- the answers to those questions be delegated by Congress to the executive branch, here to the attorney general? Now it's been decades since the Supreme Court disapproved of delegations of this kind. I think the last time was 1935. Still the doctrine is purportedly alive. It's kind of like the The Black Knight of Monty Python fame forever asserting, I'm not dead yet, as it's arms and legs and appendages are are cut off. Well maybe this time is different. You know, why would the court take up this issue? It's kind of a quirky issue, unusual one. I suppose if you're going to breathe new life into the non delegation doctorine you would do it in this weird sort of sex offender registry case rather than something with huge political salience like Obamacare or immigration law or gun regulation or what have you. But this will give the court an opportunity to explain what kind of intelligible principles say needs to guide any delegated discretion, what distinguishes a delegation- an unconstitutional delegation of legislative powers, a constitutional delegation of simply fleshing out a congressional regulatory scheme.

Rosen: [00:37:53] Thank you so much for that. Brianne, although Justice Thomas has expressed doubts about the entire delegation doctrine in a narrower decision, Reynolds vs. United States, Justice Ginsburg joined then Justice Scalia and Justice Gorsuch in suggesting that the Sex Offender Registration and Notification Act does raise questions under the non delegation doctrine. CAC is not opposed to the doctrine and in general I think but do you think it's violated in this case?

Gorod: [00:38:24] Yeah so I mean we didn't file an amicus brief in this case but I think those who are challenging this allegation certainly have a very strong argument and I think you know you have to look at the context of this delegation which you know gives the attorney general the authority to make really significant policy decisions in the criminal context that bear directly on the individual liberty of hundreds of thousands of people. I think you know when this case was granted there was a lot of speculation about whether this was the first step to invigorating the non delegation doctrine more broadly and that could certainly have really significant ramifications for the administrative state. But I think this case is really pretty different than most contexts in which non delegation issues can arise, given the criminal context, given the really unlimited discretion that the attorney general enjoys here.

Rosen: [00:39:12] Thank you so much. I think we have to do two quick other cases that are docketed and the ones that are about to be announced. We have Weyerhauser versus the- since I can't pronounce it, I'm not going to give the acronym but the question is whether the Endangered Species Act prohibits designation of private land as an occupied critical habitat that is neither habitat nor essential to species conservation. Ilya, Cato filed a fiery brief saying that the Framers can create a system of government to protect the people by limiting power and that the U.S. Fish and Wildlife Service - there it is, that's what it stands for - the U.S. Fish and Wildlife Service disregarded these liberty protecting structural safeguards when it designated petitioners' property as critical habitat of the dusky gopher frog. Well and we've got a frog and duskiness so tell us about why this case is exciting.

Shapiro: [00:40:09] Yes it's a reptilian argument I think that the government is taking here and I'm actually surprised Jeff that you stumbled over U.S. Fish and Wildlife Service and not Weyerhauser which is even harder to spell than it is to pronounce. Anyway the issue here is the dusky gopher frog actually was previously known as the Louisiana gopher frog because it exclusively lives in, as far as we know, has always lived in Louisiana. There's some property owners, the Weyerhauser company in Mississippi, that has had some of its property designated by the Fish and Wildlife Service as critical habitat under the Endangered Species Act that's essential to the survival of this gopher frog, that's subsequently been renamed the dusky gopher frog. And It's a real head scratcher because as I said this frog, this breed of frog has never lived on this particular land and in fact it cannot. The land is currently unsuitable for sustaining the frog's lifecycle. So there is an element of the Endangered Species Act here more broadly and that's why I think it will get some attention from environmentalist groups and whatnot. But this is really an administrative law case about judicial deference to the determinations of executive agencies of the administrative state, a very different type of issue than the normal nondelegation case in Gundy that we've just discussed, but one that is very much on the minds of the justices, certainly the legal academy and US legal policy wonks, about how much discretion agencies have to interpret statutes that can be ambiguous or vague. Well, what does critical habitat mean? It means essential to the survival of that species. If the fish and wildlife service determines that habitat is unsuitable for a species is essential to that species, does the English language mean anything anymore? Is another way, in my view somewhat biased because I filed in support of Weyerhauser, what this case is really all about. So I don't think the Court would actually have to push back very much on the Chevron doctrine or any of these doctrines about judicial deference to say that the government is going a little too far here.

Rosen: [00:42:23] Thank you for that. So we will see whether the dusky gopher frog joins the hapless toad, as then Judge Roberts put it in his lower court opinion involving environmental policy in the Supreme Court pantheon. But Brianne, there are some lurking big federalism questions here and Cato argues in its brief that the mere existence of land is not economic activity under the commerce clause. Otherwise Congress would have jurisdiction over all land in the country and it cites Wickard vs. Filburn, the contested case upholding the regulation of wheat consumed in the backyard on the grounds that it might have effects on interstate commerce. Do you agree with Cato, or is this a secret wedge into the scope of Congress's commerce power that you that you think should be upheld?

Gorod: [00:43:10] Yeah I- we didn't file this case, I'm not familiar with the details, I'm not as familiar with the details as Ilya is, but I from what I know, I don't think the court is going to use this as an opportunity to cabin the commerce clause. I think the court you know has addressed that in other cases recently and I'm sure it will again soon. But I think as you know Ilya pointed out, this case does raise really interesting questions, administrative law questions that have applicability well beyond this case. How does the court determine whether statutes are ambiguous? How does it interpret the laws passed by Congress and how does it deal with statutes where Congress decides to give agencies broad discretion to determine how best to- what policies are best in particular areas? You Know that's a question that is incredibly important because these questions of deference to administrative agencies are central to the federal government's ability to regulate in all sorts of ways, you know ensuring that the air and water we breathe and drink is clean, ensuring that we're safe in our workplace. And so this question, this case tees up some of those questions and so we'll see how this court addresses those issues in this particular context.

Rosen: [00:44:25] Thank you so much for that. One last case if you guys are up for it. It's very wonky but I have to tell you that I'm finding it very inspiring to delve into the legal details of these important cases both because we're identifying unusual areas of agreement when we talk about the legal details and because it's so important in these polarized times to really dig into these cases as law and understand that the rule of law does have more agreement than we might have thought before digging it in. So the question here involves a doctrine called cy-pres. And I didn't really remember it from property law but I now am reminded by the great constitutional prep team that the phrase means as close as possible and it allows the court to interpret a charitable gifts to implement the giver's intent. And this case actually involves a class action where Google was sued by internet users who thought their privacy was violated and part of the settlement was that- it was an 8.3 Million dollar settlement, 5.3 million of that was supposed to be paid to six cy-pres recipients who would dedicate the funds to promoting education. And the question here is whether the use of cy-pres doctrine for class actions should allow money to be transferred to charities and nonprofits that haven't been injured by the conduct that sparked the lawsuit. So I needed to read from the prep to describe that but that actually does seem like an interesting question. Ilya, thoughts on it?

Shapiro: [00:45:54] Yeah well we filed a brief, Cato filed a brief arguing not so much the due process aspect which is very well covered by the petitioners, by my friend Ted Frank of the class action center at the Competitive Enterprise Institute, but talking about the free speech clause that is each class member has a right to his claim and to speak for himself and not to have that extinguished by a donation to the judge's alma mater and other such sweetheart deals between class counsel and defense counsel to simply get the lawyers paid and make the case go away from the corporate defendants. And so you know supporting a charitable organization or using the rights of an individual class member who, given the settlement, everyone agrees, has viable claims that need to be satisfied, satisfying them by supporting a particular charitable cause raises First Amendment issues. In addition to the obvious due process ones that you're extinguishing these claims with no item of value at best coupons, at worst this cy-pres award, I think Chief Justice Roberts in particular has been hankering for a case on this issue and now he's got it. And another curious twist in the case is that Ted Frank will be arguing it himself. So it's an example of a pro se litigant. Now he's not some crank. Well I suppose some people might call him that but he is a very accomplished attorney argues regularly in the lower courts. This just happens to be his first Supreme Court argument. But he is the name objector to this sweetheart deal as he puts it, this abuse of the cy-pres mechanism.

Rosen: [00:47:44] Wow. So perhaps we will see our first pro se, cy-pres litigant, and Brianne, if an inspired judge felt that a part of a settlement should be donated to the National Constitution Center, as of course every settlement should be, should that be forbidden as a violation of the First Amendment rights of the rest of the class or not?

Gorod: [00:48:04] I'm sure even Ilya would say that's totally fine.

Rosen: [00:48:06] There's an exception.

Gorod: [00:48:08] But this is a really interesting case because it raises a host of different issues. You know one thing that I found really interesting in looking at this case was the solicitor general's filing. He actually went further than Frank did, raising that considerable doubt about whether the plaintiffs who sued Google actually met constitutional requirements to sue. And so you know that would be a pretty stunning thing if the court were to go into this you know Article III constitutional standing question when the parties themselves didn't raise standing as an issue. But you know the solicitor general is- obviously is often called The Tenth Justice, is a very important litigant in the court and it will be interesting to see how much attention that issue gets at argument and whether it gets any in the court's opinions as well.

Rosen: [00:48:56] Wonderful. We have really ably and usefully reviewed the cases that are on the docket. By the time We the People listeners hear this podcast on Thursday the court will have announced the new cases that it's decided to hear at the so-called long conference that it just held. Those cases could involve questions ranging from a California law that requires a landowner to get a permit to exclude public access to a private beach- is that a taking under the Fifth Amendment? There's A cross on public property case, a World War I memorial created in 1925 by the American Legion in Maryland and whether that violates the Constitution. And there is a case about vehicle searches as well. Ilya, out of the cases that the court might take and which our listeners will know whether they've taken. Which are you most interested in?

Shapiro: [00:49:49] Well it sounds like most of the interesting cases they're holding, pending perhaps the arrival of a ninth justice, because they want to avoid a 4 to 4 deadlock or having to have the case reargued just for the benefit of that justice. So what interests me are second amendment cases that are percolating through the court. The court hasn't taken one of those of course since Heller, since the decade when it first announced that the Second Amendment protects an individual right. Redistricting, partisan gerrymandering may be back at the court for a second consecutive year- that case out of North Carolina that they're looking at. The cross case certainly raises curious issues of the Establishment Clause which is a murky area that seems to be decided based on relatively arbitrary characteristics, considerations, as considered by whoever the swing justice is at any given time. These are the sorts of things I think that look to be interesting that are percolating up.

Rosen: [00:50:47] Thanks so much. Brianne, your final thoughts on cases that you're watching or might be interesting.

Gorod: [00:50:52] Yeah I was going to mention the partisan gerrymandering case that Ilya flagged. You know I think the court obviously had two really significant significant partisan gerrymandering cases on its docket last term. Some people, myself included, thought that if the court had held that partisan gerrymandering was unconstitutional, they would have been the biggest cases of the term. Instead, the court declined to to reach the merits, deciding them on standing, on procedural grounds. But the court will have another opportunity this year, it looks like, to decide the really important questions posed by these partisan gerrymandering cases.

Rosen: [00:51:24] Thank you so much for that. Well instead of closing statements I just want to say how grateful I am to you Brianne Garaad and Ilya Shapiro for having carefully taken us through the constitutional arguments in these important cases. Dear We the People listeners, these are polarized times. There will be grave challenges to the legitimacy of the court and the courts ahead. Regardless of which side of the spectrum you are on, it is urgently important that you take the time to educate yourself about the legal arguments in these cases, to understand that not all law is politics so that you can reach informed decisions in which some cases, your constitutional conclusions diverge from your political ones and you will find unexpected areas of agreement and disagreement. Ilya and Brianne, for having elevated us above partisan politics and allowed us to repose in the Constitution, thank you so much.

Gorod: [00:52:16] Thanks for having me.

Shapiro: [00:52:17] My pleasure.

Rosen: [00:52:19] This episode was engineered by Greg Scheckler and David Stotz and produced by Jackie McDermott and Scott Bomboy. Research was provided by Lana Ulrich and Jackie McDermott. Next week I'll be in Washington, D.C. for the Atlantic festival and I'll sit down with senators Chris Coons and Jeff Flake for a discussion on “The Constitution in Crisis.” That's cohosted with the Atlantic as part of their new special issue on the future of democracy. It's on October 2nd in D.C. starting at 830 AM if you can join in person. We'll livestream and bring the conversation to you on next Thursday's episode of We The People. Until then, please subscribe to the show, rate and review us on Apple podcasts, Google podcast or wherever you listen. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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