From Chambers to the Front Page: Supreme Court Leaks and Judicial Integrity

WEBVTT
1
00:00:02.080 --> 00:00:05.080
Welcome to fedsock Forums, a podcast of the Federal Society's
2
00:00:05.080 --> 00:00:08.359
Practice groups. I'm ny Chasmrik, Vice President and Director of
3
00:00:08.359 --> 00:00:11.400
Practice Groups at the Federal Society. For exclusive access to
4
00:00:11.480 --> 00:00:15.039
live recordings of fedsock Forum programs, become a Federal Society
5
00:00:15.080 --> 00:00:17.160
member today at fedsoc dot org.
6
00:00:18.399 --> 00:00:21.839
Good afternoon, everyone, and welcome to this fedsock briefing discussing
7
00:00:21.879 --> 00:00:24.719
the recent New York Times reporting on internal court memos
8
00:00:24.719 --> 00:00:27.399
and emergency dock at decision making and what these links
9
00:00:27.440 --> 00:00:30.879
mean for digital independence, institutional norms, and public trust in
10
00:00:30.920 --> 00:00:33.280
the court. My name is Annapuzi, and I'm VP of
11
00:00:33.359 --> 00:00:36.640
Communications and External Affairs here at the Federal Society. We're
12
00:00:36.679 --> 00:00:39.799
joined today by an outstanding group of experts, including Kerrie Severino,
13
00:00:39.920 --> 00:00:44.039
President of JCN, Professor Stephanie Barkley, Faculty director for the
14
00:00:44.039 --> 00:00:47.960
Georgetown Center for the Constitution at Georgetown Law, and moderated
15
00:00:48.000 --> 00:00:52.479
by Annie Donaldson Tally, partner at Luther Strange and Associates. Reminder,
16
00:00:52.520 --> 00:00:54.960
if you have any questions throughout the webinar, please submit
17
00:00:55.039 --> 00:00:57.600
them through Zoom's Q and a feature located at the
18
00:00:57.600 --> 00:00:59.920
bottom of your screen, not the chat that will be
19
00:01:00.039 --> 00:01:03.280
able to access them later. As a reminder, all opinions
20
00:01:03.600 --> 00:01:05.680
expressed are those of our speakers and not of the
21
00:01:05.680 --> 00:01:08.159
Federal Society. With that note, I'll turn things over to
22
00:01:08.159 --> 00:01:10.079
Annie to begin this discussion. And thank you all so
23
00:01:10.159 --> 00:01:13.439
much for joining us today. Thank you, Anna, and welcome
24
00:01:13.480 --> 00:01:15.480
to everyone out there. Thank you for being here today.
25
00:01:15.519 --> 00:01:18.719
Welcome especially to our two very distinguished panelists that we
26
00:01:18.760 --> 00:01:22.640
have here today. As Anna mentions Stepanie Barclay as Professor
27
00:01:22.680 --> 00:01:26.599
Blatt Georgetown Law School and director of Georgetown Center for Constitution.
28
00:01:27.159 --> 00:01:31.760
The work examines the relationship between constitutional rights and democratic
29
00:01:31.799 --> 00:01:36.120
governance and has appeared nearly everywhere, including what may be
30
00:01:36.159 --> 00:01:38.920
a somewhat new outlet for her, having recently become a
31
00:01:39.000 --> 00:01:41.400
crid tributor to the Scotus Blog, where she had a
32
00:01:41.439 --> 00:01:45.400
fantastic and timely piece out this week entitled the Emergency
33
00:01:45.439 --> 00:01:48.359
Docket's Mistaken Birthday. Hopefully I'm not giving away too much
34
00:01:48.400 --> 00:01:51.519
by quoting the name of that article. She's expecting the
35
00:01:51.519 --> 00:01:55.319
publication of a forthcoming book, Constitutional Rights to the Democracy,
36
00:01:55.480 --> 00:01:57.920
and prior to entering the Academy, where she also holds
37
00:01:57.959 --> 00:02:02.000
various appointments. Beyond her positions of Georgie, she actually litigated
38
00:02:02.000 --> 00:02:05.439
constitutional cases at the trial and the Pellow levels, and
39
00:02:05.519 --> 00:02:08.560
she served as a law clerk for Judge Brandy Smith
40
00:02:08.960 --> 00:02:11.960
on the Ninth Circuit and Justice Neil Gorsich at the
41
00:02:11.960 --> 00:02:15.960
Supreme Court. She graduated Suema cum laude from By Law
42
00:02:15.960 --> 00:02:20.560
School and is completing a PhD at Oxford University. Thank
43
00:02:20.599 --> 00:02:24.360
you for being here, Carrie Severino as anna mentioned as
44
00:02:24.400 --> 00:02:27.599
president of JCN and a regular writer, media contributor and
45
00:02:27.599 --> 00:02:30.039
speaker on a number of legal issues most relevant to
46
00:02:30.120 --> 00:02:33.879
us here today, judicial selection and the Supreme Court. Her
47
00:02:33.960 --> 00:02:38.319
publication outlet list is rivaled only by Professor Barclays, and
48
00:02:38.400 --> 00:02:41.039
she's a bit further along in her book Rearing Journey,
49
00:02:41.199 --> 00:02:43.680
having co authored the best selling book Justice on Trial,
50
00:02:43.719 --> 00:02:46.599
the Kavanaugh Confirmation and the Future of the Court, which
51
00:02:46.639 --> 00:02:49.400
I believe came out in twenty nineteen. She was also
52
00:02:49.479 --> 00:02:52.120
a law clerk on the Supreme Court to Justice Thomas.
53
00:02:52.520 --> 00:02:55.560
She was a clerk to Judge Centel on the Court
54
00:02:55.599 --> 00:02:58.319
of Appeals for the DC Circuit, and is a graduate
55
00:02:58.439 --> 00:03:03.400
of Harvard Law School, Duke Ken and Michigan State University. Ladies,
56
00:03:03.439 --> 00:03:05.960
I'm honored to joining here today to discuss the very
57
00:03:05.960 --> 00:03:08.680
important topic in the news recently, namely the new round
58
00:03:08.719 --> 00:03:10.919
of leaks out of the Supreme Court that prompted a
59
00:03:10.960 --> 00:03:13.919
New York Times expose. And as I was preparing for
60
00:03:13.960 --> 00:03:16.039
this and refreshing my reading of the story on my
61
00:03:16.120 --> 00:03:18.639
laptop rather than the version I read on my phone
62
00:03:18.639 --> 00:03:22.199
a few days back, I was regaled by the shadow
63
00:03:22.319 --> 00:03:27.080
docket graphics accompanying the Times coverage of these secret memos
64
00:03:27.080 --> 00:03:29.199
that were no longer so secret, all of which were
65
00:03:29.199 --> 00:03:32.319
supposed to lead me to a pretty spoon fed conclusion
66
00:03:32.360 --> 00:03:35.919
that this shadow docket stuff was all newly consumed of
67
00:03:36.080 --> 00:03:39.680
in the Clean powercase, it perhaps put together somewhat for
68
00:03:39.719 --> 00:03:43.000
the Court to come to more and more extreme outcomes
69
00:03:43.039 --> 00:03:47.360
in favor of certain principles, or maybe to specifically benefit
70
00:03:47.439 --> 00:03:50.960
a certain president. The court watchers across the political spectrum
71
00:03:50.960 --> 00:03:53.919
and the mainstream media have converged in its way to
72
00:03:53.960 --> 00:03:56.759
debate these things, and so I'm really pleased to be
73
00:03:56.879 --> 00:04:00.759
joined by these two experts to explore what the prevailing
74
00:04:00.879 --> 00:04:04.759
New York Times push narrative is, whether it's right, and
75
00:04:04.840 --> 00:04:08.000
what people may be missing about the emergency docket. And
76
00:04:08.039 --> 00:04:10.840
then what the fact that there's been another high profile
77
00:04:10.919 --> 00:04:13.680
leak of internal Supreme Court papers means for it as
78
00:04:13.719 --> 00:04:16.879
an institution. And what I'm going to turn to Stephanie
79
00:04:16.959 --> 00:04:19.120
to kick us off. What I hope will follow is
80
00:04:19.160 --> 00:04:22.519
a true conversation getting the wisdom of both panelists. As
81
00:04:22.560 --> 00:04:25.319
Anna mentioned, as usual, will reserve a few minutes for
82
00:04:25.439 --> 00:04:27.560
Q and A at the end, So please follow those
83
00:04:27.600 --> 00:04:31.480
directions about Q and A function to submit your questions.
84
00:04:31.639 --> 00:04:34.240
So let's get into it. Stephanie. Let's start with you
85
00:04:34.319 --> 00:04:37.240
about the premise of this whole narrative that these few
86
00:04:37.279 --> 00:04:40.360
pages of memos that were now published were the beginning
87
00:04:40.480 --> 00:04:43.079
or marked the beginning of a new mechanism by the Court.
88
00:04:43.560 --> 00:04:44.319
What say you to know?
89
00:04:45.560 --> 00:04:48.800
Yeah, So to provide a little bit of context, these
90
00:04:48.879 --> 00:04:52.720
memos are regarding the Clean Power pens day in a
91
00:04:52.759 --> 00:04:55.839
case called West Virginia versus EPA from twenty sixteen early
92
00:04:55.920 --> 00:05:00.240
February twenty sixteen. So the wave that case reached Thisupreme
93
00:05:00.279 --> 00:05:02.800
Court matters a lot for the discussion that's taking place
94
00:05:02.879 --> 00:05:06.519
right now. There was an emergency application after the DC
95
00:05:06.680 --> 00:05:10.360
Circuit had denied the stay pending its own merits review,
96
00:05:10.439 --> 00:05:13.480
so it had said it wasn't going to pause implementation
97
00:05:14.040 --> 00:05:17.560
of the EPA's new rule, and this is part of
98
00:05:17.560 --> 00:05:20.560
what's debated about the papers, But what the majority of
99
00:05:20.560 --> 00:05:24.360
the Court was worried about is that's own report had
100
00:05:24.439 --> 00:05:26.839
said this was going to be one of the most
101
00:05:26.879 --> 00:05:31.759
seismic shifts so the energy industry, the costs of compliance
102
00:05:31.759 --> 00:05:35.319
would be significant and immediate. And there was an interview
103
00:05:35.920 --> 00:05:38.560
from one of the EPAD ministers that cited in the
104
00:05:38.600 --> 00:05:41.959
briefings that talks about how they wanted this new program
105
00:05:41.959 --> 00:05:44.040
to be baked in from the beginning. So there was
106
00:05:44.079 --> 00:05:48.160
a concern that if this plan was unlawful, and if
107
00:05:48.240 --> 00:05:51.040
it wasn't paused at the beginning, it would basically make
108
00:05:51.199 --> 00:05:54.199
a pellet review later annullity it would be irrelevant at
109
00:05:54.199 --> 00:05:57.000
that point. And so with that sort of concern, the
110
00:05:57.079 --> 00:06:00.399
five to four majority of the Supreme Court halted implementation
111
00:06:00.920 --> 00:06:04.399
of this climate change regulation before any court had passed
112
00:06:04.439 --> 00:06:07.160
on the merits of it. So there have been a
113
00:06:07.199 --> 00:06:12.079
series of criticisms about the Chord's approach here that have
114
00:06:12.519 --> 00:06:16.639
sprung from leaks at the memos, the private confidential memos
115
00:06:16.639 --> 00:06:18.720
of the CORD deliberating.
116
00:06:18.040 --> 00:06:19.279
This emergency application.
117
00:06:19.519 --> 00:06:20.959
And I think we should get we will get into
118
00:06:21.040 --> 00:06:23.560
later why that leak itself is so troubling at what
119
00:06:23.600 --> 00:06:25.879
that means. But in terms of what the criticism is
120
00:06:25.879 --> 00:06:28.079
focused on, I would put them in three main buckets.
121
00:06:28.079 --> 00:06:31.079
Criticism one, as you say, is that this is really
122
00:06:31.160 --> 00:06:34.480
this marks the births, according to the New York Times
123
00:06:34.480 --> 00:06:38.079
canterin liptech of the modern emergency docket, or they refer
124
00:06:38.120 --> 00:06:40.680
to it as the shadow docket. Steve Vlannix says the
125
00:06:40.720 --> 00:06:43.120
same thing in his February anniversary piece.
126
00:06:43.160 --> 00:06:46.000
He talks about how this instance.
127
00:06:45.680 --> 00:06:48.160
In February twenty sixteen was the birth of the modern
128
00:06:48.199 --> 00:06:51.560
emergency docket. And a second set of criticisms I would
129
00:06:51.560 --> 00:06:54.079
point to is that the reasoning of these memos was poor.
130
00:06:54.240 --> 00:06:56.959
So people are looking at these memos that shouldn't be
131
00:06:57.000 --> 00:06:59.959
out for public consumption anyway and saying they don't seem
132
00:07:00.079 --> 00:07:02.160
long enough. They're referring to each other by on the
133
00:07:02.240 --> 00:07:05.720
first name basis these justices. The tone isn't formal enough,
134
00:07:05.759 --> 00:07:08.240
and so there's criticism about the quality of the reasoning
135
00:07:08.319 --> 00:07:11.319
of these memost And I'd say criticism number three is
136
00:07:11.319 --> 00:07:15.160
that the court is applying double legal standards. They're favoring
137
00:07:15.160 --> 00:07:18.439
some political parties over others. They're not applying the standard
138
00:07:18.480 --> 00:07:21.000
for whether or not there is going to be a
139
00:07:21.079 --> 00:07:24.079
serious harm to the part at issue in an even
140
00:07:24.120 --> 00:07:27.240
handed way. I think there's significant responses for all three
141
00:07:27.279 --> 00:07:29.879
of those criticisms, but I thought i'd start by providing
142
00:07:29.920 --> 00:07:31.959
some of that overall framing and then just posit and
143
00:07:32.000 --> 00:07:33.800
see if Anti or care you have anything to add
144
00:07:33.800 --> 00:07:34.120
to them.
145
00:07:35.319 --> 00:07:36.279
Yeah, I think so.
146
00:07:36.759 --> 00:07:40.519
It's not surprising to see yet another piece talking about
147
00:07:40.519 --> 00:07:43.360
the emergency docket framed in a somewhat unfair way, and
148
00:07:43.680 --> 00:07:46.000
so many of these things are really a question of
149
00:07:47.360 --> 00:07:50.439
the notion of the emergency docket has been really turned
150
00:07:50.480 --> 00:07:53.800
into this bete noir on the left, where they're constantly,
151
00:07:54.240 --> 00:07:56.959
first of all, renaming the emergency docket the shadow docket,
152
00:07:57.279 --> 00:08:00.480
second of all trying to cite things about it being
153
00:08:00.600 --> 00:08:05.000
unprecedented without maybe taking into account some of the actions
154
00:08:05.000 --> 00:08:08.839
that led to the need for court interventions in the
155
00:08:08.879 --> 00:08:13.480
first place, that we're seeing broader executive actions and different
156
00:08:13.519 --> 00:08:15.639
types of behavior than we had seen the past, in
157
00:08:15.639 --> 00:08:18.839
particular in this case, and the court referenced it. You've
158
00:08:18.879 --> 00:08:22.759
got the open acknowledgment by the regulators that part of
159
00:08:22.800 --> 00:08:26.560
the game was to force the industry to take action
160
00:08:27.079 --> 00:08:30.439
to comply with the regulation while during the penancy of
161
00:08:30.439 --> 00:08:33.360
the case, so that by the time it was almost
162
00:08:33.399 --> 00:08:35.720
mooted by the time it was finished up, because they'd
163
00:08:35.759 --> 00:08:38.679
already had to alter all of their behavior to the
164
00:08:38.720 --> 00:08:41.559
tune of millions billions of dollars and change the way
165
00:08:41.559 --> 00:08:43.200
they were doing business in the process.
166
00:08:43.559 --> 00:08:46.679
And so the Supreme Court, to the extent that it
167
00:08:46.759 --> 00:08:47.360
is true.
168
00:08:47.120 --> 00:08:50.519
That they had to be taking action in more aggressive ways,
169
00:08:50.720 --> 00:08:54.360
may have been simply forced into that position by the
170
00:08:54.440 --> 00:08:57.759
prior executive actions. That we're doing things in these really
171
00:08:57.840 --> 00:09:00.360
broad ways. Obama was famous for talking about how he
172
00:09:00.399 --> 00:09:02.720
could accomplish a lot with a pen and a phone,
173
00:09:02.759 --> 00:09:06.440
and I think that was the natural response to that behavior,
174
00:09:06.440 --> 00:09:09.120
and we haven't seen that trend necessarily declined. And the
175
00:09:09.159 --> 00:09:13.440
Trump years either that there's as Congress has done not
176
00:09:13.519 --> 00:09:15.679
as much legislating as I think almost anyone thinks they
177
00:09:15.679 --> 00:09:19.279
should be doing. The executive action takes over, and then
178
00:09:19.399 --> 00:09:22.679
that forces the Court into this position of having to
179
00:09:22.919 --> 00:09:26.519
make these kind of decisions earlier and more quickly simultaneous.
180
00:09:26.600 --> 00:09:29.720
A litigation against executive action is at a much higher
181
00:09:29.799 --> 00:09:32.399
pace than it was before. So a lot of these
182
00:09:32.840 --> 00:09:35.679
features are really not to be you shouldn't be surprising
183
00:09:35.840 --> 00:09:39.399
based on just the change in the background behavior of
184
00:09:39.519 --> 00:09:43.440
both the executive branch and the people litigating against the Court.
185
00:09:43.919 --> 00:09:45.879
I will say for me, one of the most troubling
186
00:09:45.919 --> 00:09:50.120
things out of the whole experience is watching the effect
187
00:09:50.200 --> 00:09:53.919
on the institution of the Court and the idea this
188
00:09:54.000 --> 00:09:56.440
is even that we're even having these discussions with internal
189
00:09:56.480 --> 00:10:00.200
memos being leaked this way, so far out of the
190
00:10:00.279 --> 00:10:03.159
norm for what the Supreme Court at least was, and
191
00:10:03.240 --> 00:10:06.399
unfortunately maybe becoming the new normal that really changes the court.
192
00:10:06.399 --> 00:10:08.679
But we'll get to that aspect of it too well.
193
00:10:08.679 --> 00:10:11.000
Definitely get to that, and I do want to make
194
00:10:11.039 --> 00:10:14.039
sure that we come back to your points about both
195
00:10:14.200 --> 00:10:16.919
why this is happening and how the Supreme Word is
196
00:10:16.960 --> 00:10:20.559
a responsive institution, because pieces have to come to it
197
00:10:20.639 --> 00:10:21.840
obviously for.
198
00:10:21.799 --> 00:10:22.320
It to act.
199
00:10:22.559 --> 00:10:25.039
I also want to come back to that asymmetry about
200
00:10:25.120 --> 00:10:28.559
what's happening with the leaks and how they may be perceived,
201
00:10:28.559 --> 00:10:31.879
and how we're all just looking based on sixteen pages
202
00:10:32.000 --> 00:10:35.240
of documents, and something tells me maybe those sixteen pages
203
00:10:35.240 --> 00:10:38.120
aren't it. But let's start at the very beginning here,
204
00:10:38.200 --> 00:10:42.519
which is obviously they were responding to something Obviously the
205
00:10:42.559 --> 00:10:46.000
pasture of the case was somewhat novel, especially with those
206
00:10:46.240 --> 00:10:49.799
pronouncements by the administration about how they wanted this to happen.
207
00:10:50.399 --> 00:10:54.840
But was this really the first emergency doct case that
208
00:10:54.919 --> 00:10:55.679
came down like this?
209
00:10:56.679 --> 00:10:57.840
Yeah, so let me speak to that.
210
00:10:58.039 --> 00:11:00.399
Part of the reason for the framing of this being
211
00:11:01.120 --> 00:11:04.159
the first or really novel, it seems to be into
212
00:11:04.399 --> 00:11:06.120
a narrative to try and make it out as the
213
00:11:07.039 --> 00:11:09.799
Chief and the court were coming up with some new
214
00:11:09.799 --> 00:11:13.240
fangled idea to try and push a political agenda. They
215
00:11:13.279 --> 00:11:16.039
agreed with us and rule in a way that would
216
00:11:16.159 --> 00:11:19.720
favor one presidential administration is ramrod through the normal process.
217
00:11:20.200 --> 00:11:22.039
And so that's part of the reason why they were
218
00:11:22.039 --> 00:11:25.440
framing this moment as significant, it as the first. I
219
00:11:25.440 --> 00:11:27.039
don't really have a big dog in the fight and
220
00:11:27.120 --> 00:11:30.039
exactly when the first moment happened, but I will say
221
00:11:30.080 --> 00:11:33.919
that this wasn't it. So when if we go back
222
00:11:34.000 --> 00:11:38.519
to September twenty fourth of twenty thirteen, the Little Sisters
223
00:11:38.519 --> 00:11:40.840
of the Poor sued the Department of Health and Human
224
00:11:40.879 --> 00:11:43.759
Services in a district court in Colorado, And this was
225
00:11:44.240 --> 00:11:47.679
not a peripheral rule. They were suing about the Portable
226
00:11:47.720 --> 00:11:51.840
Care Act was Obama's signature domestic achievement, and the contraceptive
227
00:11:51.879 --> 00:11:55.600
mandate wasn't required by that statute. It was being implemented
228
00:11:55.679 --> 00:12:00.480
by HHS, an executive agency, which required different group including
229
00:12:00.519 --> 00:12:03.720
a lot of religious groups, to provide contraception through their
230
00:12:03.759 --> 00:12:06.919
plans or to facilitate that process. And this was something
231
00:12:06.960 --> 00:12:09.639
the Little Sisters of the Poor objected to, so they
232
00:12:09.919 --> 00:12:12.440
sought relief in the District Court. The District Court denied
233
00:12:12.440 --> 00:12:15.240
their preliminary injunction. The US Court of Appeals for the
234
00:12:15.279 --> 00:12:19.240
Tin Circuit denied a request for relief for emergency pending
235
00:12:19.240 --> 00:12:22.960
appeal on December thirty first, because fines were set to
236
00:12:23.039 --> 00:12:25.679
kick in on January first. That would have been crippling.
237
00:12:25.960 --> 00:12:27.759
So we have the same sort of posture as the
238
00:12:27.799 --> 00:12:31.279
Clean Power Planet Act. Years later, we're in the end
239
00:12:31.320 --> 00:12:34.559
of twenty thirteen down and so what the Supreme Court
240
00:12:34.679 --> 00:12:37.440
does is ignore or go the other way from what
241
00:12:37.480 --> 00:12:41.200
the Tin Circuit has done denying relief during the pendency
242
00:12:41.200 --> 00:12:44.080
of the appeal. And it was actually Justice Soda Mayror
243
00:12:44.519 --> 00:12:46.919
the evening of Miror's Eve, right before she herself led
244
00:12:47.159 --> 00:12:50.039
the ball drop in time of Square issued only a
245
00:12:50.039 --> 00:12:53.600
one paragraph order long granting the relief to the Little
246
00:12:53.639 --> 00:12:56.960
Sisters on the emergency docket in an emergency posture. And
247
00:12:57.000 --> 00:12:59.399
this wasn't the only thing that happened. Her order was
248
00:12:59.480 --> 00:13:04.360
later ratified by the entire Supreme Court without dissent. And
249
00:13:04.879 --> 00:13:07.279
so we have a unanimous order on January twenty fourth
250
00:13:07.320 --> 00:13:09.720
extending that injunction. And by the way, this isn't just
251
00:13:09.720 --> 00:13:12.519
for the Little Sisters. This is against over four hundred
252
00:13:12.519 --> 00:13:16.159
additional Catholic organizations at issue in this case. And then
253
00:13:16.159 --> 00:13:19.200
the Court goes on the same emergency posture to provide
254
00:13:19.200 --> 00:13:21.759
that sort of relief in the case of Wheaton and
255
00:13:21.799 --> 00:13:24.120
in the case of Zubik. So why this matters is
256
00:13:24.120 --> 00:13:28.799
because we have a democratic appointed justice later joined by
257
00:13:29.000 --> 00:13:36.200
unanimous Supreme Court limiting a democratic president signature policy. And
258
00:13:36.559 --> 00:13:39.159
why are they doing it for the reasons Carrie talked about,
259
00:13:39.200 --> 00:13:43.120
Because this is the innovation. What is new is executive
260
00:13:43.320 --> 00:13:45.879
overreach in a way that we'll make later a Pellet
261
00:13:45.879 --> 00:13:48.399
review irrelevant. It would bankrupt the Little Sisters of the
262
00:13:48.440 --> 00:13:53.679
Poor and other religious objectors. And so I think this example,
263
00:13:53.799 --> 00:13:56.360
along with later examples where the current Supreme Court has
264
00:13:56.440 --> 00:14:00.360
ruled against the Trump administration for the same reason, it's
265
00:14:00.399 --> 00:14:02.399
just an inconvenient fact for the New York Times that
266
00:14:02.480 --> 00:14:05.679
in fact, the emergency docket isn't being used as a
267
00:14:05.679 --> 00:14:08.519
tool of partisanship. It's being used in context where we
268
00:14:08.559 --> 00:14:12.600
either have executive overreach or through dynamics like the rise
269
00:14:12.600 --> 00:14:15.240
of the nationwide injunction, where lower courts would freeze in
270
00:14:15.279 --> 00:14:18.120
place policies and really aggressive ways the Court had to
271
00:14:18.159 --> 00:14:21.519
respond to. There are external factors that the Supreme Court
272
00:14:21.559 --> 00:14:24.879
is responding to in order to maintain their supremacy is
273
00:14:24.960 --> 00:14:26.759
the Supreme Court, and to make sure that their.
274
00:14:26.679 --> 00:14:28.919
Later review will actually be relevant.
275
00:14:28.960 --> 00:14:30.879
And that's just a very different narrative and a far
276
00:14:30.960 --> 00:14:33.879
less political narrative. And also on the tradition of court
277
00:14:33.879 --> 00:14:37.679
intervention is on the side of long standing precedents like
278
00:14:37.720 --> 00:14:41.159
added Labs from nineteen sixty seven or expartic that make
279
00:14:41.200 --> 00:14:44.799
clear that parties shouldn't have to comply with a legal
280
00:14:44.840 --> 00:14:47.240
command in ways they're going to have crippling consequences in
281
00:14:47.320 --> 00:14:49.720
order to earn the privilege of contesting it. That's a
282
00:14:49.720 --> 00:14:52.840
long standing principle in our democracy. It goes back again
283
00:14:52.919 --> 00:14:54.879
to nineteen oh eight, and that this is just a
284
00:14:54.919 --> 00:14:58.080
different way on the emergency docket that the Supreme Court
285
00:14:58.080 --> 00:15:02.000
has had to implement that same principle askew.
286
00:15:01.720 --> 00:15:02.879
Both at this point.
287
00:15:03.039 --> 00:15:07.600
Obviously, when something comes up on an emergency posture, regardless
288
00:15:07.639 --> 00:15:12.200
of who the moving party is, the rhythms of the
289
00:15:12.240 --> 00:15:14.559
court are going to be different than the very long
290
00:15:15.279 --> 00:15:18.320
tale of merit stockets, where there's months and months that
291
00:15:18.399 --> 00:15:21.120
go by on these cases. We also talked about the
292
00:15:21.159 --> 00:15:24.720
asymmetry of we have somewhat We've got a number of
293
00:15:24.720 --> 00:15:27.799
memos that are out. We have no idea what else
294
00:15:27.879 --> 00:15:31.399
might have been going on in the court around those memos.
295
00:15:31.720 --> 00:15:34.320
So can you both maybe walk us through a little
296
00:15:34.320 --> 00:15:35.639
bit about what is normal?
297
00:15:36.200 --> 00:15:36.320
Is?
298
00:15:36.440 --> 00:15:40.679
Are these memos normal? Are is there something very different?
299
00:15:40.720 --> 00:15:41.240
How does this?
300
00:15:41.799 --> 00:15:44.879
Obviously the time and the posture of these are going
301
00:15:44.960 --> 00:15:48.559
to drive a little bit different procedure internally in the court.
302
00:15:48.679 --> 00:15:52.039
But what's a normal court papers look like?
303
00:15:53.000 --> 00:15:53.480
Is a clerk?
304
00:15:53.720 --> 00:15:57.000
Some of this stuff was not necessarily crossing our paths
305
00:15:57.039 --> 00:16:00.480
as much. But I can certainly say that the idea
306
00:16:00.519 --> 00:16:03.759
of justices writing memos on all the different topics to
307
00:16:03.799 --> 00:16:06.679
each other was absolutely normal. When I was clerking the
308
00:16:06.720 --> 00:16:08.679
majority of the emergency petitions you would get and maybe
309
00:16:08.679 --> 00:16:12.279
this is still the majority of them were debt penalty petition,
310
00:16:12.559 --> 00:16:16.200
and you're always going to have different justices writing memos
311
00:16:16.200 --> 00:16:20.679
to each other and copied in nine copies that used
312
00:16:20.720 --> 00:16:23.159
to be with the carbon paper between them, and having
313
00:16:23.159 --> 00:16:26.279
that discussion, particularly on the emergency docket, be a memo
314
00:16:26.399 --> 00:16:29.240
is very normal. That's not the way that, for example,
315
00:16:29.320 --> 00:16:32.759
during a oral argument a case it's set for oral arguments,
316
00:16:32.840 --> 00:16:35.840
you might have as much discussion simply because the justices
317
00:16:36.240 --> 00:16:39.120
are working. There's a very set pattern of how you
318
00:16:39.120 --> 00:16:41.960
would go about preparing for a argument, having a discussion
319
00:16:42.360 --> 00:16:45.120
in conference afterwards, and the justices have a little bit
320
00:16:45.159 --> 00:16:48.159
more direct face to face discussion. But these type of
321
00:16:48.200 --> 00:16:51.399
papers struck me as not out of the ordinary for
322
00:16:51.559 --> 00:16:52.639
an emergency case.
323
00:16:53.480 --> 00:16:55.080
And so let me just add to that, I agree
324
00:16:55.080 --> 00:16:55.919
with what curious saying.
325
00:16:56.480 --> 00:16:59.279
This goes back to the second criticism that's being leveled
326
00:16:59.559 --> 00:17:01.879
the clear Power Plan case, and that is that there's
327
00:17:01.919 --> 00:17:05.440
like something about these memos that suggests don't there's a
328
00:17:05.440 --> 00:17:06.680
lot of robust reasoning.
329
00:17:06.759 --> 00:17:08.599
It seems really rushed, it seems really fast.
330
00:17:09.039 --> 00:17:12.039
First of all, a number of scholars, including Professor Richard
331
00:17:12.119 --> 00:17:14.960
Ray at Harvard pointed out that we don't have all
332
00:17:14.960 --> 00:17:17.359
of the memos. So we know from the way in
333
00:17:17.400 --> 00:17:22.160
which emergency docket cases operate from previously Supreme Court papers,
334
00:17:22.519 --> 00:17:25.599
that all of the justices have to vote, and we're
335
00:17:25.839 --> 00:17:29.759
missing a series of different memos in this trunch, including
336
00:17:29.759 --> 00:17:32.440
from Thomas, Celia and Ginsburg. And for all we know
337
00:17:32.480 --> 00:17:35.519
we had there were multiple memos because justices can keep
338
00:17:35.559 --> 00:17:38.240
iterating back and forth. But the fact that at least
339
00:17:38.240 --> 00:17:40.920
those three are missing shows we don't have a complete record.
340
00:17:41.079 --> 00:17:44.279
So first of all, we can't accurately assess whether or
341
00:17:44.319 --> 00:17:48.000
not this whole deliberation was a fullsome quality record or
342
00:17:48.039 --> 00:17:49.599
not when we only have a piece of it, and
343
00:17:49.640 --> 00:17:51.440
we don't know how much more we're not even able
344
00:17:51.480 --> 00:17:52.000
to evaluate.
345
00:17:52.000 --> 00:17:52.920
That's point number one.
346
00:17:53.079 --> 00:17:56.640
Point number two is that the criticism about the quality
347
00:17:56.680 --> 00:18:01.960
of this exchange not being very fullsome has an unspoken assumption,
348
00:18:02.359 --> 00:18:05.160
which is that there must be like some really magical,
349
00:18:05.559 --> 00:18:09.799
fulsome thorough exchange that normally happens on the merits docket
350
00:18:09.799 --> 00:18:12.079
where the justices are like writing each other chain novels
351
00:18:12.079 --> 00:18:14.240
about all their thoughts on the cases. And I just
352
00:18:14.319 --> 00:18:18.319
think that sort of unspoken assumption is being raised by
353
00:18:18.400 --> 00:18:20.400
and I only expected to be raised by people who
354
00:18:20.400 --> 00:18:22.880
have never clerked in the Supreme Court, worked in the
355
00:18:22.880 --> 00:18:26.480
Supreme Court, and seen how the merit stocket deliberation takes place.
356
00:18:26.880 --> 00:18:28.599
I just published an article of B.
357
00:18:28.720 --> 00:18:31.920
Coothro Matthew Crowder coming out in the Pennsylvania Law Review,
358
00:18:32.240 --> 00:18:36.559
where we analyze Justice O'Connor's recently released Supreme Court cases papers,
359
00:18:36.599 --> 00:18:40.400
including some of her papers dealing with deliberations of merit's cases.
360
00:18:40.440 --> 00:18:41.920
And I will tell you that they are not writing
361
00:18:41.960 --> 00:18:44.680
each other chain novels of all of their thoughts and
362
00:18:44.920 --> 00:18:48.359
pontifications over likely periods of time leading up to the case,
363
00:18:48.440 --> 00:18:50.480
or how they should vote. In some ways, there's more
364
00:18:50.480 --> 00:18:53.960
of that these memoia on this particular emergency docket case
365
00:18:54.359 --> 00:18:57.160
than your average merit stock or merits cases it's coming
366
00:18:57.240 --> 00:18:59.319
up for decision now. Of course, there is a lot
367
00:18:59.319 --> 00:19:01.759
of exchange back and forth with the justices when they
368
00:19:01.759 --> 00:19:05.759
discuss cases in conference orally, and then later when they're
369
00:19:05.799 --> 00:19:08.839
revising each other's opinions. But it shouldn't surprise us that
370
00:19:08.880 --> 00:19:11.599
if we're not revising a big opinion in an emergency
371
00:19:11.599 --> 00:19:13.920
docket case that has a very brief order, then there's
372
00:19:13.960 --> 00:19:17.200
not going to be as much churn editing that because
373
00:19:17.240 --> 00:19:20.720
there's not a lengthy opinion to edit. So the second opinion, again,
374
00:19:20.799 --> 00:19:23.759
just to summarize all of that, really display is a
375
00:19:23.839 --> 00:19:26.640
lack of understanding of what the baseline even is against
376
00:19:26.640 --> 00:19:29.920
which we would compare how thorough this deliberation is, and
377
00:19:29.960 --> 00:19:32.440
by the baseline that is real, it's quite thorough.
378
00:19:34.240 --> 00:19:36.720
You mentioned Professor Richard Ray, and I did want to
379
00:19:36.759 --> 00:19:39.000
point out I don't want to get huge erailed because
380
00:19:39.039 --> 00:19:40.359
I want to make sure that we talk about the
381
00:19:40.400 --> 00:19:43.640
implications of this, but about the posture of the case.
382
00:19:43.720 --> 00:19:46.519
And I know a little about Bode and Richard Ray
383
00:19:46.640 --> 00:19:49.640
just had a piece that was published today called Misunderstanding
384
00:19:49.640 --> 00:19:52.000
the Law of the Clean Power Play ruleing where they
385
00:19:52.039 --> 00:19:54.720
talk about how the posture of the case and how
386
00:19:54.759 --> 00:19:57.079
that came up to the court matters, who was the
387
00:19:57.119 --> 00:20:00.559
movie party and what are their burdens. So mentioned that
388
00:20:00.640 --> 00:20:03.359
since you brought up to the professor, I have seen
389
00:20:03.440 --> 00:20:07.039
some discussion, and I know there's a couple of questions
390
00:20:07.079 --> 00:20:08.599
already in the comments, So I think we're going to
391
00:20:08.640 --> 00:20:10.640
return to the merits of this here at a minute.
392
00:20:10.680 --> 00:20:14.200
But I have seen some discussion and debate about ethics
393
00:20:14.279 --> 00:20:19.799
issues with leaking and getting these publishing the internal demos
394
00:20:20.000 --> 00:20:22.200
and things like that. Leaks aren't new, especially in the
395
00:20:22.240 --> 00:20:24.240
government in my background of the government, and I know
396
00:20:24.400 --> 00:20:26.920
you guys have been around too. It's not that leaks
397
00:20:26.920 --> 00:20:30.480
are new in Washington. But legal ethics for lawyers makes
398
00:20:30.519 --> 00:20:33.039
that a little different. And I did want to give
399
00:20:33.079 --> 00:20:35.799
anybody a chance to discuss that. Again, I've seen some
400
00:20:35.920 --> 00:20:40.000
back and forth online debating that, but maybe that's a
401
00:20:40.000 --> 00:20:43.359
good segue to talk about what this actually means and
402
00:20:43.400 --> 00:20:45.519
what it means for the court. So I'll let either
403
00:20:45.559 --> 00:20:48.039
one of you jump in if you have something specifically
404
00:20:48.039 --> 00:20:50.440
on that, but if not, we'll transition to carry.
405
00:20:51.359 --> 00:20:54.200
Yeah, I think the idea of what's going on with
406
00:20:54.240 --> 00:20:56.359
the ethics here has been brought up, and there was
407
00:20:56.400 --> 00:20:59.839
an article talking about what are the legal ethics implications
408
00:21:00.119 --> 00:21:03.359
for Adam Liptak, who himself has a law license and
409
00:21:03.559 --> 00:21:07.680
in terms of interfering with the work of the court.
410
00:21:08.039 --> 00:21:11.039
But there's also the question which is a little complicated
411
00:21:11.039 --> 00:21:13.200
because we don't actually know the identity of the leaker
412
00:21:13.319 --> 00:21:15.960
in either this or the even bigger leaker of the
413
00:21:16.000 --> 00:21:19.279
Dobs case, or there have been several other recent leaks
414
00:21:19.519 --> 00:21:23.680
regarding internal deliberations at the Supreme Court, and it looks
415
00:21:23.680 --> 00:21:26.039
a little different in terms of the ethics depending on
416
00:21:26.480 --> 00:21:29.400
who the leaguer is. I think most people presume that
417
00:21:29.440 --> 00:21:32.279
there probably are one or more clerks involved in these
418
00:21:32.319 --> 00:21:36.079
various leaks, and we know that the law clerks actually
419
00:21:36.079 --> 00:21:39.279
do have a code of conduct, and as of recently
420
00:21:39.480 --> 00:21:41.640
this year at least, they have been starting to be
421
00:21:41.720 --> 00:21:45.240
required to have sign an NDA which goes even above
422
00:21:45.240 --> 00:21:48.519
and beyond their code of conduct, which would the code
423
00:21:48.519 --> 00:21:53.200
of conduct really establishes almost an attorney client ish relationship
424
00:21:53.200 --> 00:21:56.680
where they have a duty of confidentiality and loyalty to
425
00:21:57.000 --> 00:22:00.799
their justices, all the other justices and the Court in
426
00:22:00.880 --> 00:22:06.519
maintaining confidential information including case outcomes, votes, opinion authorship, announcement date,
427
00:22:06.599 --> 00:22:10.119
and obviously the type of internal memos would be that
428
00:22:10.559 --> 00:22:13.119
were leaked in this case or in the Dobs case
429
00:22:13.119 --> 00:22:15.079
for that matter, would be included to.
430
00:22:15.079 --> 00:22:17.319
That the clerk.
431
00:22:17.559 --> 00:22:22.279
The Supreme Court law clerk code of conduct says they
432
00:22:22.279 --> 00:22:24.519
are subject to appropriate sanctions, and I think a lot
433
00:22:24.559 --> 00:22:27.039
of people have been frustrated, particularly following the Dobbs leak,
434
00:22:27.279 --> 00:22:30.440
to see the lack of I guess by part because
435
00:22:30.440 --> 00:22:34.079
the person wasn't identified, the lack of consequences for the person,
436
00:22:34.440 --> 00:22:37.640
and I agree that's a real problem. And we predicted
437
00:22:37.640 --> 00:22:40.640
at the time if that individual wasn't found, if there
438
00:22:40.680 --> 00:22:42.559
wasn't some kind of consequence for them, that we would
439
00:22:42.559 --> 00:22:45.359
see increased leaks. And while thankfully we haven't seen a
440
00:22:45.440 --> 00:22:47.960
leak of a full draft opinion as we did in Dobbs,
441
00:22:47.960 --> 00:22:51.759
which we know led to incredible security risks and a
442
00:22:51.759 --> 00:22:55.680
lot of problems at the court, this is most recent
443
00:22:55.759 --> 00:22:59.359
leak is evidence that culture is still broken down. In
444
00:22:59.400 --> 00:23:03.920
a sense, it is very unusual historically speaking, for draft
445
00:23:04.119 --> 00:23:07.079
documents from the Court to actually be released. I was
446
00:23:07.119 --> 00:23:10.519
trying to do research to find other examples, and really
447
00:23:11.039 --> 00:23:13.960
there was one case where there was a draft a
448
00:23:14.079 --> 00:23:17.759
Descent in nineteen eighty one that was leaked but not
449
00:23:17.880 --> 00:23:21.200
ultimately published because it couldn't be authenticated. But this is
450
00:23:21.759 --> 00:23:25.880
highly unusual that you'd have actual documents that were released
451
00:23:26.359 --> 00:23:29.839
by a leaker. This is an illustration of a breakdown
452
00:23:29.920 --> 00:23:32.599
in the culture of the court. When I was clerking,
453
00:23:32.920 --> 00:23:35.839
it was made very clear to us how serious, how
454
00:23:35.880 --> 00:23:40.440
seriously the Court and this Chief Justice took the confidentiality,
455
00:23:40.599 --> 00:23:43.200
and we can understand why if the justices are to
456
00:23:43.240 --> 00:23:47.079
be able to have a back and forth and a discussion. Again,
457
00:23:47.279 --> 00:23:49.559
they have this oral discussion on many cases, but a
458
00:23:49.599 --> 00:23:53.119
lot of the back and forth on drafting and editing
459
00:23:53.200 --> 00:23:57.079
various opinions and descents comes in the form of paper
460
00:23:57.279 --> 00:24:00.880
memos or maybe now electronically, but written memos passed around
461
00:24:01.079 --> 00:24:03.880
and certainly in the emergency document docket that often happens.
462
00:24:03.960 --> 00:24:06.279
Particularly there's a lot of cases that the justices might
463
00:24:06.319 --> 00:24:08.799
not even be in town, or this maybe happening in
464
00:24:08.839 --> 00:24:12.000
a longer distance type of thing. If the court can't
465
00:24:12.039 --> 00:24:16.359
be confident that its internal deliberations are being kept confidential,
466
00:24:17.079 --> 00:24:19.880
we're going to see a big change in the way
467
00:24:19.920 --> 00:24:22.480
that they are able to interact with each other. They're
468
00:24:22.519 --> 00:24:24.480
not going to be able to be as frank. They
469
00:24:24.519 --> 00:24:26.240
may be able to choose to write less, they may
470
00:24:26.240 --> 00:24:29.119
be able to choose to have these back and forth
471
00:24:29.359 --> 00:24:32.920
negotiations with justices on the other side of the aisle less.
472
00:24:32.960 --> 00:24:34.720
I don't think anyone thinks that would be good for
473
00:24:34.759 --> 00:24:37.480
the institution of the court. So I think, whoever these
474
00:24:37.599 --> 00:24:40.920
the leakers are, what it may, it seems like that
475
00:24:41.039 --> 00:24:44.119
many of these are coming from the left, attempting to
476
00:24:44.200 --> 00:24:47.759
attack the current makeup of the court as too conservative,
477
00:24:48.200 --> 00:24:50.240
or to pro Trump, or whatever else.
478
00:24:50.640 --> 00:24:54.440
I think that short term goal is has going to have.
479
00:24:54.400 --> 00:24:56.519
Some very long term even if it seems to be
480
00:24:56.519 --> 00:24:59.799
effective in making that point in the short term, I
481
00:24:59.839 --> 00:25:02.200
think I think it has some very serious long term
482
00:25:02.200 --> 00:25:05.920
effects on undermining the Court's ability to have these discussions.
483
00:25:06.359 --> 00:25:09.200
And it also has just a breakdown of the norms
484
00:25:10.079 --> 00:25:13.319
means that we may be likely to just continue seeing
485
00:25:13.359 --> 00:25:16.200
more and more leaks. When I was clerking, was the
486
00:25:16.240 --> 00:25:18.240
Chief Justice made it very clear that if anyone was
487
00:25:18.240 --> 00:25:21.920
found to have leaked confidential information, that would be the
488
00:25:22.079 --> 00:25:25.000
end of their career. The court looks very poorly on
489
00:25:25.039 --> 00:25:28.000
that and Justice Scalia people spoke that of how he
490
00:25:28.039 --> 00:25:30.680
would make that very clear that if anyone leaked confidential
491
00:25:30.680 --> 00:25:33.960
information that he would personally see to it that they
492
00:25:34.000 --> 00:25:37.200
were not able to be hired in good positions going forward.
493
00:25:37.559 --> 00:25:40.519
And I think that threat of you won't be able
494
00:25:40.559 --> 00:25:43.279
to be hired in this town, your career and your
495
00:25:43.599 --> 00:25:47.640
career defining experience, that this clerkship will be forever tainted
496
00:25:47.680 --> 00:25:52.640
by that interaction, that was enough and frankly was sufficient
497
00:25:52.680 --> 00:25:55.759
in a world where there wasn't an NDA, there wasn't
498
00:25:55.839 --> 00:25:59.119
anyone checking your bags in and out of the court,
499
00:25:59.160 --> 00:26:01.200
all these different things that you can imagine of ways
500
00:26:01.200 --> 00:26:03.920
people could have snuck things out because there was enough
501
00:26:03.920 --> 00:26:07.279
of an institutional check on itself where people realized, we
502
00:26:07.359 --> 00:26:09.720
have this duty and we don't want to go cross
503
00:26:09.759 --> 00:26:13.279
that line each time it happens and someone isn't held accountable.
504
00:26:13.319 --> 00:26:14.920
Unfortunately, that breaks down a little.
505
00:26:14.920 --> 00:26:18.240
And so now I can imagine that people would believe
506
00:26:18.279 --> 00:26:20.880
that maybe my career isn't over. And I think even
507
00:26:20.920 --> 00:26:25.279
more damaging is the perception that maybe the court can't
508
00:26:25.319 --> 00:26:29.319
do anything to itself, but at least the justice for
509
00:26:29.359 --> 00:26:31.839
whom you work, I think could send a very strong message,
510
00:26:31.880 --> 00:26:33.480
as Justice Scalia is purported to do.
511
00:26:33.599 --> 00:26:34.480
Is I worked for.
512
00:26:34.519 --> 00:26:37.400
Justice Thomas, I'm confident that if someone who is another
513
00:26:37.440 --> 00:26:39.960
Thomas clerk who was found to be engaging in this
514
00:26:40.079 --> 00:26:42.880
kind of leaking to the press, he would not look
515
00:26:42.960 --> 00:26:46.319
kindly on. This is not something that other co clerks
516
00:26:46.359 --> 00:26:48.720
and other clerks for the same justice would say, would
517
00:26:48.720 --> 00:26:50.240
look kindly on, and I think it would have a
518
00:26:50.279 --> 00:26:53.480
serious impact on their career simply because other people don't
519
00:26:53.519 --> 00:26:56.359
want to be encouraging that kind of behavior. I think
520
00:26:56.400 --> 00:26:58.319
it would do a lot of good if some of
521
00:26:58.319 --> 00:27:01.039
the other justices would make that more clear that this
522
00:27:01.119 --> 00:27:03.519
type of behavior is not to be sanctioned.
523
00:27:03.599 --> 00:27:06.599
And regardless of whether one side.
524
00:27:06.440 --> 00:27:08.359
Or the other things, it's going to advance their own
525
00:27:08.359 --> 00:27:09.240
political arguments.
526
00:27:09.240 --> 00:27:11.400
This is very damaging for the court.
527
00:27:12.599 --> 00:27:14.720
Well, Soymphie, I'm going to give you a chance to
528
00:27:14.759 --> 00:27:16.880
come in on this too. But before I do, I
529
00:27:17.079 --> 00:27:18.799
were at the bottom of the hour. I wanted to
530
00:27:18.880 --> 00:27:22.519
remind anybody who wants to submit questions please use the
531
00:27:22.599 --> 00:27:24.839
Q and a tab. So they come together in the
532
00:27:24.880 --> 00:27:27.119
little window up in the corner of mine, I compose
533
00:27:27.200 --> 00:27:30.279
them to our panelists. But Stephanie Carrie makes some really
534
00:27:30.279 --> 00:27:32.839
great points about especially what this means and what the
535
00:27:32.880 --> 00:27:36.960
clerks have put upon or whoever the leakers are, have
536
00:27:37.079 --> 00:27:41.160
put upon the Court, and how it's potentially even changing
537
00:27:41.240 --> 00:27:44.279
the institution, either in the shorter or the long term.
538
00:27:44.599 --> 00:27:47.599
Some of that has yet to be seen, but what
539
00:27:47.680 --> 00:27:50.799
does this also mean for Court writ large as an institution.
540
00:27:51.200 --> 00:27:53.000
This is just me, and I was never a clerk
541
00:27:53.039 --> 00:27:55.079
in the building, but it always seemed to me that
542
00:27:55.119 --> 00:27:59.079
the Court was an institution. The president became the president
543
00:27:59.079 --> 00:28:02.839
as a person, largely especially after the television revolution and
544
00:28:02.960 --> 00:28:06.200
into the new millennium and everything, where the personality and
545
00:28:06.240 --> 00:28:08.079
the president are very forefront.
546
00:28:08.480 --> 00:28:11.039
Congress is always a little different, But the Court just
547
00:28:11.079 --> 00:28:12.759
seemed to be this monolith.
548
00:28:13.240 --> 00:28:16.759
Even some of us, some legal nerds, had our favorites
549
00:28:16.839 --> 00:28:19.599
or our court watchers and knew the different personalities of
550
00:28:19.720 --> 00:28:22.279
the different justices. But I think to most people they
551
00:28:22.319 --> 00:28:24.559
just saw it as the court. Maybe it was a
552
00:28:24.559 --> 00:28:26.920
liberal court or a conservative court in some way, but
553
00:28:27.559 --> 00:28:31.440
this is really poining the individual personalities out in the
554
00:28:31.480 --> 00:28:35.119
way that we generally only used to find out when
555
00:28:35.160 --> 00:28:37.480
their papers came out long after they were gone. Do
556
00:28:37.519 --> 00:28:40.319
you have any response or thoughts on how this is
557
00:28:40.400 --> 00:28:41.000
changing things.
558
00:28:42.240 --> 00:28:45.240
I think one of the real costs and how this
559
00:28:45.319 --> 00:28:47.759
is changing the court, having been clerking at the Court
560
00:28:47.880 --> 00:28:50.279
for one of the major leagues, is just the impact
561
00:28:50.480 --> 00:28:55.119
it has on suppressing the ability of those operating within
562
00:28:55.160 --> 00:28:58.720
the Court to able to deliberate candidly and to do
563
00:28:58.799 --> 00:29:02.720
their work. Is when any tentative vote or draft passage
564
00:29:02.720 --> 00:29:06.119
can be weaponized the moment it displeases someone with access
565
00:29:06.880 --> 00:29:10.119
or later down the line, then justices and their clerks
566
00:29:10.559 --> 00:29:15.279
can't deliberate candidly anymore. Our democracy depends on their candid liberation,
567
00:29:15.400 --> 00:29:18.119
their ability to work well together. The Court has for
568
00:29:18.160 --> 00:29:20.079
a long time in some ways, I think it's the
569
00:29:20.079 --> 00:29:23.039
best functioning branch of government. I think would be better
570
00:29:23.079 --> 00:29:25.480
fee other branches of governments also functioned well.
571
00:29:25.519 --> 00:29:26.680
But it's really a quite.
572
00:29:26.440 --> 00:29:30.720
Collegial institution in a lot of impressive respects, and these
573
00:29:31.119 --> 00:29:34.839
sorts of leagues damage that backbone of how the court
574
00:29:34.839 --> 00:29:35.440
gets it's worked.
575
00:29:35.440 --> 00:29:36.319
Onne It's okay.
576
00:29:36.359 --> 00:29:38.960
I also want to just to briefly address in the
577
00:29:39.039 --> 00:29:41.319
last twenty four hours or so, there have been some
578
00:29:41.480 --> 00:29:45.119
defenses of why we should still think of the twenty
579
00:29:45.200 --> 00:29:47.880
sixteen power Plan as really the important starting point for
580
00:29:47.920 --> 00:29:50.720
all of this, and Professor Blanneck has doubled down on
581
00:29:50.799 --> 00:29:53.039
why we should really look at the emergency docket is
582
00:29:53.119 --> 00:29:56.640
now a tool of partisanship because the vast majority of
583
00:29:56.720 --> 00:29:59.440
the rulings on the emergency docket, he says, have been
584
00:30:00.119 --> 00:30:02.440
the Trump administration, not against the Trump administration. So one
585
00:30:02.480 --> 00:30:04.240
thing I will say about that is vlatic and black
586
00:30:04.279 --> 00:30:07.480
men and others have said those earlier little sisters of
587
00:30:07.480 --> 00:30:10.839
the poor cases don't count as real emergency docket cases
588
00:30:11.359 --> 00:30:14.480
because they are just injunctions against some parties, so they're
589
00:30:14.519 --> 00:30:18.880
not freezing the entire rule in place. And also there
590
00:30:18.960 --> 00:30:22.480
was some district court litigation already that happened even though
591
00:30:22.519 --> 00:30:26.240
there was no real substantive merits review at the appellate court.
592
00:30:26.279 --> 00:30:27.960
So they're trying to say that means that those cases
593
00:30:27.960 --> 00:30:31.119
don't count. That's not the real starting point. So again
594
00:30:31.119 --> 00:30:32.200
I don't have a big dog in it.
595
00:30:32.160 --> 00:30:33.519
Exactly where the starting point was.
596
00:30:33.759 --> 00:30:36.920
I know it's not twenty sixteen, but the way it's
597
00:30:37.000 --> 00:30:39.920
being used is like a reason to try and say
598
00:30:39.920 --> 00:30:41.640
this was invented for political reasons.
599
00:30:42.279 --> 00:30:43.359
I think it's worth pushing back.
600
00:30:43.680 --> 00:30:46.200
Why are the goalposts being moved on this claim of
601
00:30:46.200 --> 00:30:50.160
what counts as the emergency docket? Because Professor Vladick himself
602
00:30:50.440 --> 00:30:54.480
has long criticized cases where it was just providing relief
603
00:30:54.519 --> 00:30:57.279
to certain parties and even where there was district court
604
00:30:57.319 --> 00:30:59.880
litigation and called them part of the modern emergency Do
605
00:31:00.319 --> 00:31:02.480
that's true of religious subjectors.
606
00:31:02.000 --> 00:31:02.880
And the COVID era?
607
00:31:03.559 --> 00:31:06.519
In fact, that's when Professor Vladock became probably most prominent
608
00:31:06.640 --> 00:31:10.680
criticizing how the emergency docket operated was criticizing those rulings
609
00:31:10.680 --> 00:31:13.160
on the emergency docket by the Supreme Court for specific
610
00:31:13.240 --> 00:31:17.559
religious objectors, not freezing nationwide executive policy in place, and
611
00:31:17.599 --> 00:31:20.279
even where sometimes there had been district court litigation, and
612
00:31:20.359 --> 00:31:22.920
Professor Vladik and The New York Times recently criticized the
613
00:31:22.960 --> 00:31:28.240
Supreme Court's ruling in Mirabelli providing relief to specific religious
614
00:31:28.279 --> 00:31:31.839
objectors in California who objected to school policies interfering with
615
00:31:31.880 --> 00:31:34.799
their printal rights and religious upbringing up their children. That's
616
00:31:34.839 --> 00:31:38.000
targeted relief, freezing an executive order in place there had
617
00:31:38.000 --> 00:31:40.920
been district court litigation, and everybody agrees that was an
618
00:31:40.960 --> 00:31:44.680
emergency docket case. That's precisely the posture of the Little Sisters,
619
00:31:44.680 --> 00:31:46.720
the poor case. And I think we should just wonder
620
00:31:46.759 --> 00:31:50.519
why are these commentators reaching so hard to exclude those
621
00:31:50.519 --> 00:31:54.000
earlier cases that show what a bipartisan tool this was
622
00:31:54.119 --> 00:31:56.279
ben Supreme Court. I think because it's not a convenient
623
00:31:56.319 --> 00:31:58.039
fact for the narrative that they would like to craft
624
00:31:58.039 --> 00:32:00.920
that unfortunately doesn't fit the data points when we look
625
00:32:00.920 --> 00:32:05.519
at like why it is that the Trump administration has had,
626
00:32:05.839 --> 00:32:09.119
as Professor Flattig pointed, Out of the twenty seven Trump
627
00:32:09.119 --> 00:32:12.720
Emergency Docket grants, twenty five went for Trump. One thing
628
00:32:12.799 --> 00:32:15.279
that Sarah Isger and others have pointed out is that
629
00:32:15.319 --> 00:32:18.599
this is a bit of a misnomber because what was
630
00:32:18.599 --> 00:32:20.279
going on in a lot of these cases is that
631
00:32:20.720 --> 00:32:24.000
lower courts had issued pretty aggressive rulings, some of them
632
00:32:24.039 --> 00:32:28.480
nationwide injunctions or other things that themselves were freezing executive
633
00:32:28.480 --> 00:32:31.440
policy in place. And one of the things that should
634
00:32:31.440 --> 00:32:33.519
come out of these memos and the reporting on the
635
00:32:33.559 --> 00:32:36.640
emergency docket is that it is rare for the Supreme
636
00:32:36.640 --> 00:32:39.200
Court or any court to grant relief on the emergency docket.
637
00:32:39.240 --> 00:32:41.279
It's a really high bar. And so in most of
638
00:32:41.319 --> 00:32:43.920
those cases, all the Supreme Court was doing is telling
639
00:32:43.960 --> 00:32:46.279
the lower courts, hey, you didn't actually meet that bar.
640
00:32:46.960 --> 00:32:49.880
You were being really aggressive against these policies, but our
641
00:32:49.920 --> 00:32:52.559
intervention is courts and the emergency docket should be rare,
642
00:32:52.599 --> 00:32:54.359
and you didn't follow that rule.
643
00:32:54.720 --> 00:32:55.559
And so the.
644
00:32:55.519 --> 00:32:58.400
Supreme Court wasn't intervening on its own, It wasn't jumping
645
00:32:58.400 --> 00:33:01.519
into rule for the Trump admits on something the Trump
646
00:33:01.559 --> 00:33:04.680
administration was asking the court to do against another party.
647
00:33:04.720 --> 00:33:08.200
The Supreme Court was undoing aggressive action of lower courts,
648
00:33:08.240 --> 00:33:10.000
and there was just a lot of them, more than
649
00:33:10.079 --> 00:33:13.160
against other presidential administrations for a variety of reasons.
650
00:33:13.200 --> 00:33:14.119
Some of it was warranted.
651
00:33:14.160 --> 00:33:17.359
Some of what the Trump administration has done is executive
652
00:33:17.359 --> 00:33:19.759
over reach. The Supreme Court has ruled against the Trump
653
00:33:19.759 --> 00:33:23.640
administration on the emergency docket multiple times, and the New
654
00:33:23.720 --> 00:33:26.799
York Times reporting doesn't really give any airtime to those
655
00:33:26.880 --> 00:33:30.359
rulings either, because they're also inconvenient facts for the narrative
656
00:33:30.400 --> 00:33:32.720
that is just not backed up by the evidence that
657
00:33:32.799 --> 00:33:35.119
this is just a tool of partisanship. And as you
658
00:33:35.160 --> 00:33:38.839
put out, Vode and Professor Bode and Professor Ray today
659
00:33:38.839 --> 00:33:42.039
also had another piece putting out how some of the
660
00:33:42.079 --> 00:33:45.559
claims of using a double standard of the injunctive factors
661
00:33:45.960 --> 00:33:49.319
really are just conflating two different doctrines, two different approaches
662
00:33:49.359 --> 00:33:51.599
that you use depending on who is the moving party.
663
00:33:52.039 --> 00:33:54.160
That's not to say that there's not room for discussion
664
00:33:54.200 --> 00:33:58.079
about legal reforms. That's very different than conflating two different
665
00:33:58.119 --> 00:34:01.240
legal doctrines and then confusing the Mamrea in public about
666
00:34:01.240 --> 00:34:04.319
what the law is and how in fact the emergency
667
00:34:04.319 --> 00:34:05.240
docket is being used.
668
00:34:05.240 --> 00:34:10.119
Today certainly seems like the narrative that the New York
669
00:34:10.119 --> 00:34:13.760
Times certainly and perhaps whoever was behind providing them with
670
00:34:13.800 --> 00:34:17.519
the documents. It seems like there's a definite narrative they
671
00:34:17.559 --> 00:34:20.400
want to send here. I think we've talked about in
672
00:34:20.519 --> 00:34:24.679
ways that it's factually inaccurate, it is asymmetrical. We don't
673
00:34:24.719 --> 00:34:27.760
have any clue what all is left in the file
674
00:34:28.239 --> 00:34:31.559
that was not leaked may not fit the same narrative.
675
00:34:32.079 --> 00:34:33.920
What question that has been asked a.
676
00:34:33.840 --> 00:34:36.119
Couple times in a few different ways, And they don't
677
00:34:36.119 --> 00:34:39.920
want to get full into defending the emergency docket. But
678
00:34:40.199 --> 00:34:42.400
I think this is an interesting question that comes from
679
00:34:42.440 --> 00:34:48.239
these memos, which is there's some concern that citing either
680
00:34:48.440 --> 00:34:52.719
news stories or other facts, even the EPA administrators quotes
681
00:34:53.280 --> 00:34:56.480
in these memos was improper. There's a lot of people
682
00:34:56.519 --> 00:34:59.320
complaining about that that was not properly part of the
683
00:34:59.360 --> 00:35:02.400
record that they were presented with. Obviously, because this came
684
00:35:02.480 --> 00:35:06.400
up on such an early stage motion, it seems like
685
00:35:06.920 --> 00:35:09.960
the courts may be not immune to what's going on
686
00:35:10.000 --> 00:35:13.559
and what's being out there. Especially interesting given that we
687
00:35:13.639 --> 00:35:15.960
are now seeing the New York Times try to actively
688
00:35:16.000 --> 00:35:18.559
push a narrative fear, But what do you make of
689
00:35:18.599 --> 00:35:21.639
the practice, or at least the admission that, at least
690
00:35:21.639 --> 00:35:25.840
in the internal documents, at least that the justices are
691
00:35:25.880 --> 00:35:28.840
reading the news, they are watching what's going on, they
692
00:35:28.880 --> 00:35:31.599
are listening to potentially what some of the folks that
693
00:35:31.599 --> 00:35:35.639
are saying in the administration, and it seems like that
694
00:35:35.679 --> 00:35:38.400
may have been part of at least some of the reasoning.
695
00:35:38.880 --> 00:35:42.800
Do you have a response to that criticism if thoughts
696
00:35:42.800 --> 00:35:43.119
about that?
697
00:35:43.199 --> 00:35:44.320
Do you want me to go first? Carriage? Do you
698
00:35:44.320 --> 00:35:44.840
want to go first?
699
00:35:44.920 --> 00:35:45.079
Sure?
700
00:35:45.119 --> 00:35:46.360
Either way.
701
00:35:46.440 --> 00:35:48.639
So I think what I would say about that is
702
00:35:48.800 --> 00:35:51.880
some scholars, I think Professor Adler, have said that there's
703
00:35:51.920 --> 00:35:55.519
been attention drawn to Chief Justice Robert's reference to a
704
00:35:55.519 --> 00:35:59.000
BBC interview quote from not just anybody, not like a
705
00:35:59.079 --> 00:36:02.719
Joshmo who works in the government somewhere the hen of
706
00:36:02.840 --> 00:36:07.039
the agency that was implementing this rule, and Adler has
707
00:36:07.079 --> 00:36:10.840
suggested I believe that that quote likely came from party briefing.
708
00:36:10.920 --> 00:36:13.599
So it's not as though Justice their Chief Justice Roberts
709
00:36:13.679 --> 00:36:15.559
was like, hey, guys, I was watching BBC the other
710
00:36:15.639 --> 00:36:16.440
night and I saw this.
711
00:36:16.440 --> 00:36:18.239
Really interesting clip. You should know about it.
712
00:36:18.320 --> 00:36:20.599
That he's drawing from the materials that are before the
713
00:36:20.599 --> 00:36:23.440
Court and that everybody can consider most likely is at
714
00:36:23.480 --> 00:36:26.239
least one argument that's being made, and I will confess
715
00:36:26.280 --> 00:36:28.719
I haven't checked that myself. The other point, though, is
716
00:36:28.760 --> 00:36:31.239
that there are times when it's not appropriate to try
717
00:36:31.280 --> 00:36:34.280
and figure out government intent for things. The Supreme Court
718
00:36:34.280 --> 00:36:36.960
has said that, for example, in some statutory interpretation cases.
719
00:36:37.159 --> 00:36:39.000
But it's a little different when the legal standards is
720
00:36:39.039 --> 00:36:40.760
different and we're just trying to figure out the balance
721
00:36:40.800 --> 00:36:43.880
of the equities. And Adler has done some reporting about
722
00:36:44.440 --> 00:36:46.159
the types of things that were considered. If you look
723
00:36:46.199 --> 00:36:49.920
at Justice Stevens recently released the papers, and they are
724
00:36:49.960 --> 00:36:52.760
looking at the facts that they could take judicial notice
725
00:36:52.800 --> 00:36:54.760
of facts that the parties that are bringing to their
726
00:36:54.760 --> 00:36:57.000
attention that are relevant to the equities of the harm.
727
00:36:57.000 --> 00:36:59.039
Who is going to be more harmed by this right
728
00:36:59.079 --> 00:37:01.280
now based on the fact before us that the parties
729
00:37:01.280 --> 00:37:03.599
are drawing our attention to. The last thing I'll say
730
00:37:03.679 --> 00:37:07.199
is that even if we ignored the BBC comment all together,
731
00:37:07.719 --> 00:37:12.440
that wasn't really like the major The Chief was like hanging.
732
00:37:12.159 --> 00:37:13.440
All the weight of his argument on.
733
00:37:13.519 --> 00:37:15.599
I think the most important signature piece that he and
734
00:37:15.639 --> 00:37:18.119
the other justice has focused on much more was the
735
00:37:18.159 --> 00:37:22.000
EPA's own report. So their official report that is in
736
00:37:22.079 --> 00:37:24.480
the record that there's no question we get to rely on,
737
00:37:24.960 --> 00:37:27.400
says that this rule is going to be a seismic
738
00:37:27.559 --> 00:37:30.639
change in the industry and is going to make it
739
00:37:30.679 --> 00:37:33.920
such the the costs will be astronomical right away. So
740
00:37:34.440 --> 00:37:37.480
they are relying on a very official document much more heavily.
741
00:37:37.679 --> 00:37:40.280
And like whatever we think about the BBC used interview,
742
00:37:40.280 --> 00:37:42.840
which I think not a big deal, but like fine
743
00:37:42.920 --> 00:37:44.840
cut that out, there was a lot of other material
744
00:37:45.159 --> 00:37:47.199
the Port had and relied on and deliberate it in
745
00:37:47.239 --> 00:37:50.440
and those memos to support precisely concern that they had,
746
00:37:50.440 --> 00:37:53.280
which was that if they didn't intervene on the emergency docket,
747
00:37:53.519 --> 00:37:56.679
there would be no real point later of having appellet
748
00:37:56.760 --> 00:37:59.480
review even if in fact the rule was unlawful, because
749
00:37:59.480 --> 00:38:03.199
it would have mooted any meaningful quarttion at that point.
750
00:38:04.480 --> 00:38:07.360
Certainly seems to have gone to the equities Carrie.
751
00:38:07.880 --> 00:38:12.039
Yeah, it's just a reminder, this is when we're dealing
752
00:38:12.079 --> 00:38:14.280
with the emergency dock that they do have more limited
753
00:38:14.519 --> 00:38:15.639
briefing that they're dealing with.
754
00:38:15.679 --> 00:38:18.079
But it's also this is only the temporary thing.
755
00:38:18.079 --> 00:38:20.519
This is not as if the case again, this case
756
00:38:20.559 --> 00:38:24.239
we know didn't go further in this format at least,
757
00:38:24.800 --> 00:38:28.199
but I think it's important to remember that when the
758
00:38:28.239 --> 00:38:30.719
Court is resolving these issues on the emergency dock, and
759
00:38:30.760 --> 00:38:33.760
I think sometimes it gets treated as if this is
760
00:38:33.840 --> 00:38:35.880
now the Court has weighed in once and for all
761
00:38:35.880 --> 00:38:37.519
in this issue, and that's not at all what they're
762
00:38:37.559 --> 00:38:38.880
doing in this context.
763
00:38:38.920 --> 00:38:41.480
They're trying to figure out what is the status.
764
00:38:41.239 --> 00:38:43.840
Quo during the pendency of the litigation, and what they're
765
00:38:43.840 --> 00:38:47.559
trying to do is keep it from changing dramatically during
766
00:38:47.559 --> 00:38:50.360
the litigation so that eventually, and eventually it did get
767
00:38:50.360 --> 00:38:51.840
to weigh in on the clean power plan, but it
768
00:38:51.880 --> 00:38:54.400
took a long time, so that eventually that they'll have
769
00:38:54.480 --> 00:38:57.119
the cleanest record possible when they're finally getting to these
770
00:38:57.119 --> 00:38:59.960
merits briefings. A lot of times some of those same
771
00:39:00.559 --> 00:39:03.199
statements to the press are also going to be part
772
00:39:03.239 --> 00:39:05.719
of that record, but it'll be a more fulsome record.
773
00:39:05.840 --> 00:39:06.039
I know.
774
00:39:06.079 --> 00:39:09.920
That's why people say they shouldn't engage in the emergency docket,
775
00:39:09.960 --> 00:39:11.239
that they don't have a full left record, but they
776
00:39:11.280 --> 00:39:13.360
simply need to make a decision one way or the
777
00:39:13.400 --> 00:39:16.239
other as to what are people going to do in
778
00:39:16.280 --> 00:39:18.159
real time while this is happening, and so they have
779
00:39:18.199 --> 00:39:21.000
to work with the information available for them.
780
00:39:21.519 --> 00:39:24.159
I know we're getting close to the end of our time,
781
00:39:24.400 --> 00:39:26.880
our time slot for this. I wanted to give you
782
00:39:27.079 --> 00:39:29.960
each last opportunity because I think we could go down
783
00:39:30.000 --> 00:39:33.400
the rabbit hole of talking about their emergency docket and
784
00:39:33.679 --> 00:39:36.719
variouscations of that for the next three hours if we
785
00:39:36.760 --> 00:39:37.360
had the time.
786
00:39:37.719 --> 00:39:39.679
But I did want to give you each one.
787
00:39:39.519 --> 00:39:42.840
More chance to give us any departing thoughts that you have,
788
00:39:43.000 --> 00:39:45.039
either on the New York Times or on the Supreme
789
00:39:45.039 --> 00:39:47.920
Court as an institution about this step me.
790
00:39:47.960 --> 00:39:52.280
I'll let you go first, all right, Just end meeting myself.
791
00:39:52.400 --> 00:39:56.599
I think that it's placed in the larger perspective, bigger
792
00:39:56.599 --> 00:39:59.639
context of what's happening with the emergency docket that has
793
00:39:59.679 --> 00:40:02.480
started at least as early as twenty fourteen.
794
00:40:02.519 --> 00:40:04.000
Oh one other thing I wanted to say about.
795
00:40:04.039 --> 00:40:05.920
But another reason we know that the starting point is
796
00:40:05.960 --> 00:40:10.639
earlier than twenty sixteen is because Will Bode, who coined
797
00:40:10.760 --> 00:40:13.840
the term the shadow bucket that Professor Bladock likes to use,
798
00:40:14.239 --> 00:40:17.119
coin that before the Clean Power Plan, and in his
799
00:40:17.360 --> 00:40:21.039
article the Forward the Harvard Law Review, he relies extensively
800
00:40:21.159 --> 00:40:23.920
on the contraceptive mandate litigation, including the Little Sisters the
801
00:40:23.960 --> 00:40:27.159
Poor and Wheaten and Zubik as examples of the shadow docket,
802
00:40:27.199 --> 00:40:30.239
as did Richard Ray early on. The very people that
803
00:40:30.400 --> 00:40:33.480
like first started talking about this phenomenon are doing so
804
00:40:33.639 --> 00:40:36.079
in the context of the Little Sisters, not the clean
805
00:40:36.119 --> 00:40:40.159
power planets, the big Bang moment for the Shado bucket
806
00:40:40.159 --> 00:40:43.679
that happens years after they're commenting on it. But so anyway, that,
807
00:40:43.800 --> 00:40:46.440
among other things, the story that these papers really tell,
808
00:40:46.960 --> 00:40:50.000
read alongside cases that the Times chose not to include,
809
00:40:50.039 --> 00:40:51.599
I think, is not one of a court that is
810
00:40:51.920 --> 00:40:55.119
stumbling into something novel on a single winter evening that
811
00:40:55.159 --> 00:40:57.639
the chief cooked up to implement partisan politics.
812
00:40:58.000 --> 00:40:58.480
Very different.
813
00:40:58.480 --> 00:41:01.079
It's the story of a court that's been responding for
814
00:41:01.199 --> 00:41:05.280
some time to recurring structural problems. Sometimes that involves executive
815
00:41:05.320 --> 00:41:09.320
action whose design or pace would render ordinary merits review formality.
816
00:41:09.440 --> 00:41:13.400
Sometimes it's overly aggressive lower court action that aren't following
817
00:41:13.480 --> 00:41:15.880
the types of factors they should be for intervening because
818
00:41:15.880 --> 00:41:18.119
it should be rare, and they're freezing policy in place
819
00:41:18.159 --> 00:41:20.320
before they should, And the Court is responding to a
820
00:41:20.440 --> 00:41:23.679
rise of both of those things. They're external factors. So
821
00:41:23.800 --> 00:41:25.880
this is a problem that took one form in the
822
00:41:26.000 --> 00:41:29.719
HHS mandate context. It took another form in the Clean
823
00:41:29.760 --> 00:41:32.840
Power Plan in context. It has taken that same form
824
00:41:32.960 --> 00:41:36.320
in a number of emergency docket cases before the Trump administration,
825
00:41:36.360 --> 00:41:39.840
and again some of which were ruling against the Trump administration.
826
00:41:40.360 --> 00:41:43.320
What's new about this episode isn't what the Court decided
827
00:41:43.320 --> 00:41:46.840
in February twenty sixteen. It's that the namoranda in which
828
00:41:46.880 --> 00:41:50.079
the justices debated what to decide are now in a newspaper,
829
00:41:50.360 --> 00:41:52.920
the third such leak at least maybe more in the
830
00:41:53.000 --> 00:41:55.800
last two years. And I think that question has received
831
00:41:55.800 --> 00:41:58.400
too little attention in terms of what this means for
832
00:41:58.440 --> 00:42:01.920
the Court's capacity to function well as a deliberative institution,
833
00:42:02.159 --> 00:42:04.679
and what we should think about a context in which
834
00:42:04.760 --> 00:42:08.119
the Court is being punished, essentially by those who disagree
835
00:42:08.159 --> 00:42:10.159
with the reasoning. That, to me is the far greater
836
00:42:10.239 --> 00:42:13.000
concern than anything that came out of what we learned
837
00:42:13.000 --> 00:42:15.960
about these papers, which by all accounts, from looking at
838
00:42:16.159 --> 00:42:19.599
recently relays papers of Justice O'Connor and Justice Stevens seem
839
00:42:19.639 --> 00:42:21.679
on par for the type of deliberation that the Court
840
00:42:21.679 --> 00:42:23.760
had been doing, not just in recent years, but for
841
00:42:23.840 --> 00:42:27.440
decades on the emergency docket for the death penalty. This
842
00:42:27.480 --> 00:42:29.440
is the type of deliberation the Court had been doing
843
00:42:29.480 --> 00:42:32.119
for a long time. Nothing new to see here other
844
00:42:32.199 --> 00:42:35.760
than the fact of the leaks itself, which is damaging
845
00:42:35.800 --> 00:42:39.360
and hopefully will be a precedent that does not continue.
846
00:42:40.360 --> 00:42:40.559
Yeah.
847
00:42:40.679 --> 00:42:44.239
Unfortunately, so, just as I mentioned, Justice Thomas has recently commented,
848
00:42:44.519 --> 00:42:45.960
and I think he's not the only one.
849
00:42:46.159 --> 00:42:47.400
Justice Leto may have said this too.
850
00:42:47.679 --> 00:42:50.760
A disappointment in some of the changes in the collegiality
851
00:42:51.280 --> 00:42:53.800
of the Court, in the way that we see the
852
00:42:53.880 --> 00:42:57.960
justices working with each other. These leaks, I think unfortunately
853
00:42:58.559 --> 00:43:02.679
feed into concerns about whether the institution of the Court
854
00:43:03.199 --> 00:43:05.559
needs to do more work to return to a method
855
00:43:05.559 --> 00:43:08.679
of more collegiality. So when you have justices who are
856
00:43:08.719 --> 00:43:12.880
sniping in each other publicly, and as recently happens, and
857
00:43:13.079 --> 00:43:17.519
Justice Sotomara had to apologize to Justice Kevanaugh for suggesting
858
00:43:17.519 --> 00:43:19.039
he didn't know any poor people and that was the
859
00:43:19.079 --> 00:43:21.360
way he disagreed with her on votes in cases. This
860
00:43:21.480 --> 00:43:23.440
is not the way the Supreme Court should be making
861
00:43:23.480 --> 00:43:26.639
its arguments, including making its arguments.
862
00:43:26.239 --> 00:43:27.800
To the public.
863
00:43:28.039 --> 00:43:30.599
When I was in law school, Justice Scalia and Justice
864
00:43:30.599 --> 00:43:33.840
Briar had this wonderful kind of show they would do
865
00:43:33.920 --> 00:43:38.599
going around the country debating living constitution versus originalism. And
866
00:43:38.679 --> 00:43:41.360
I thought it was great because it wasn't just one
867
00:43:41.519 --> 00:43:44.000
justice going and saying these guys are all crazy because
868
00:43:44.000 --> 00:43:46.360
they believe this. It's not that Justice Gleid and say
869
00:43:46.360 --> 00:43:48.280
the other side was crazy or Justice Bryar didn't do
870
00:43:48.360 --> 00:43:51.000
the contrary. It's that they were having this discussion with
871
00:43:51.079 --> 00:43:54.079
each other in public, and not in a ad hominem
872
00:43:54.199 --> 00:43:56.440
kind of way, but being able to have this have
873
00:43:56.760 --> 00:43:59.360
a serious debate and have people engage in that debate.
874
00:43:59.599 --> 00:44:02.800
What were seeing now, I think is unfortunately a lot
875
00:44:02.880 --> 00:44:08.320
more kind of one sided criticism and from the justices,
876
00:44:08.360 --> 00:44:11.480
and I think that setting that tone is beating. I
877
00:44:11.480 --> 00:44:13.119
don't know which is the chicken and which is the egg,
878
00:44:13.199 --> 00:44:15.599
but it seems to me in general the institution is
879
00:44:15.639 --> 00:44:21.960
having more trouble maintaining this collegiality and maintaining that internal respect.
880
00:44:22.000 --> 00:44:25.159
I think if maybe my note of hope is I
881
00:44:25.199 --> 00:44:27.360
think the best way to fix this isn't to have
882
00:44:27.639 --> 00:44:30.039
better scanners on the inside and out of the court
883
00:44:30.119 --> 00:44:33.679
or increase criminal penalties for people leaking things, but to
884
00:44:33.960 --> 00:44:37.440
find a way to restore that institutional culture where it
885
00:44:37.440 --> 00:44:42.079
would be unthinkable to be violating confidentiality. In that way,
886
00:44:42.119 --> 00:44:43.719
you're always going to have the news that wants to
887
00:44:43.800 --> 00:44:46.280
report every little thing. And in today's world, we're used
888
00:44:46.320 --> 00:44:49.599
to getting information moment by moment, rather than waiting as
889
00:44:49.679 --> 00:44:52.480
is traditional until the death of every justice the justice
890
00:44:52.519 --> 00:44:54.320
served with a lot of justices, that's how long they
891
00:44:54.320 --> 00:44:56.440
would keep their papers confidential.
892
00:44:56.599 --> 00:44:57.880
And it's because they recognize the.
893
00:44:57.880 --> 00:45:03.440
Importance of maintaining that confidentiality of their colleagues, even too,
894
00:45:03.800 --> 00:45:06.679
so that people weren't trying to I don't know, overly
895
00:45:07.079 --> 00:45:09.679
politicize or read into some of these internal debates and
896
00:45:09.760 --> 00:45:12.119
make that possible for that to go on in a
897
00:45:12.159 --> 00:45:16.000
way that was shielded from the level of public debate.
898
00:45:16.519 --> 00:45:19.000
All of us court watchers love having the information and
899
00:45:19.079 --> 00:45:20.840
love having it quickly, but I don't think it's worth
900
00:45:20.840 --> 00:45:23.679
the cost to the institution itself. So I hope the
901
00:45:23.679 --> 00:45:26.519
court can write itself, and I think maybe that starts
902
00:45:26.559 --> 00:45:28.800
with some of the justices from the top down setting
903
00:45:29.119 --> 00:45:32.159
a new culture in a new standard and trying to
904
00:45:32.239 --> 00:45:38.360
regain that amongst themselves.
905
00:45:36.079 --> 00:45:39.280
As the message of hope for the future. I want
906
00:45:39.280 --> 00:45:41.400
to thank you both for joining us today and thank
907
00:45:41.519 --> 00:45:44.440
all of you who are watching either live or later
908
00:45:44.519 --> 00:45:47.840
on this panel. And Lebby, I think you're going to
909
00:45:47.920 --> 00:45:49.880
take us out, Yes, wonderful.
910
00:45:50.159 --> 00:45:52.000
I just wanted to pop on here and thank you
911
00:45:52.039 --> 00:45:55.039
all again on behalf of the Federal Society for joining
912
00:45:55.119 --> 00:45:57.679
us today and for sharing your expertise and insights into
913
00:45:57.719 --> 00:46:01.840
a really fascinating topic, very important. And thank you, of
914
00:46:01.840 --> 00:46:05.079
course to Annie for moderating today's discussion. If our audience
915
00:46:05.119 --> 00:46:07.599
is interested in learning more about all of our programming
916
00:46:07.599 --> 00:46:10.599
here at the Federal Society, please visit our website at
917
00:46:10.639 --> 00:46:14.159
fedsoc dot org, that is feed s oc dot org,
918
00:46:14.480 --> 00:46:16.360
or feel free to send us your feedback. We always
919
00:46:16.400 --> 00:46:19.960
love to hear it at Fedsocforums at fedsoc dot org.
920
00:46:20.079 --> 00:46:21.039
With that, we are Ajert.
921
00:46:21.679 --> 00:46:23.559
Thank you so much, Thank you.
922
00:46:23.519 --> 00:46:26.519
For listening to this episode of FEDSOC Forums, a podcast
923
00:46:26.559 --> 00:46:29.800
of the Federal Societies Practice Groups. For more information about
924
00:46:29.800 --> 00:46:32.719
the Federal Society, the practice groups, and to become a
925
00:46:32.719 --> 00:46:36.320
Federal Society member, please visit our website at fedsoc dot org.
926
00:46:36.440 --> 00:46:36.599
Org