WEBVTT

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Hi everyone, welcome to the Billy

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Wilder Theater. I'm Claudia Bestor,

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the director of public programs here

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at the Hammer Museum, and it's my

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pleasure to have you all here

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tonight for our Hammer Forum.

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Thank you.

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The Hammer Forum is a

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monthly series of discussions about

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current social and political issues,

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and it is made possible with support

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from the Rosenbloom Family

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Foundation.

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And I want to express my gratitude

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to our co-presenters at the

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Safeguarding Democracy Project at

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UCLA Law.

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Tonight, we are discussing the

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recent Supreme Court rulings on

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major issues, putting the

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court once again at the center of

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momentous legal, policy,

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and constitutional debates.

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We've gathered an all-star panel of

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legal scholars to analyze the

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meaning and implications of the

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latest Supreme Court opinions and

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emergency docket rulings.

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So I'm going to very briefly

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introduce our distinguished guests

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so that they have as much time as

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possible to discuss these important

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issues.

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Jennifer M.

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Chacon is the Bruce Tyson Mitchen

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Professor.

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Mitchell, professor of law at

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Stanford University.

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Cary Franklin is the director of the

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Center on Reproductive Health Law

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and Policy and the faculty director

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of Williams Institute at UCLA.

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Justin Levitt is a professor of Law

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at Loyola Marymount University and

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was the White House's first senior

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policy advisor for democracy and

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voting rights from 2021 to

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2022.

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Eugene Volokh is the Thomas M.

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Siebel Senior Fellow at the Hoover

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Institution at Stanford and just

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retired from a 30-year career

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at the UCLA School of Law,

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where he served as a distinguished

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professor of law and distinguished

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research professor and is now

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Professor Emeritus.

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Our moderator this evening is Rick

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Hasen. He's a professor of Law and

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Political Science here at UCLA

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and Director of the UCLA Law

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School Safeguarding Democracy

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Project.

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He is a nationally recognized expert

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in election law and campaign finance

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regulation and co-author of the

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leading case books on election law

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and remedies.

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After tonight's discussion, we'll

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have a chance to continue the

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conversation over some light

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refreshments in the theater lobby.

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So now, please join me in welcoming

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professors Jennifer Chacon,

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Cary Franklin, Rick Hasen,

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Justin Levitt, and Eugene Volokh.

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Good evening, everyone. Thanks for

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coming out for this Supreme

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Court term in review.

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In some ways, this term

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has been a tale of two terms.

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One term, the usual business of

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the Supreme Court, where it

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decides maybe a year

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in advance is going to hear a case,

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leisurely takes briefing, has

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an oral argument, and months later

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issues an opinion.

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And the court's emergency

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or shadow docket, where it is

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deciding things on the fly,

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sometimes giving a

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Reasons for its decisions sometimes,

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not many of these cases involving

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controversial Trump administration

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policies.

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We're going to talk about both of

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those, the two Supreme Courts

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today.

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We're gonna start by talking about

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some of the major decisions that the

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court issued

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through its regular process,

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although even some of the cases

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we'll talk about at the beginning

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are cases that were issued on

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this emergency basis.

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And then we'll turn to talk what's

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going on now on the relationship

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among the.

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The court, the executive

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branch, and Congress, and what

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this means for our democracy, which

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is a topic that all of us,

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I'm sure, would like to learn more

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about. And so we've got a

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great panel today.

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What I've asked each of our

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distinguished panelists to do is to

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talk for about five to seven

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minutes on a topic

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or a case or

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a set of related cases on a

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particular topic.

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And then we'll work our way down

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the line, starting with, just so

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everyone knows, it's Cary, Eugene,

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Jennifer, and Justin.

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And after that, we'll turn

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to a more conversational mode, and

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I'm gonna start by talking about

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that,

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the cases, including cases

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as recently as yesterday, where the

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Supreme Court gave the

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green light to the potential

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dismantling of the Department of

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Education. So we will be getting to

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all of that. But we're going to

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start by talking.

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About some cases involving

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transgender rights.

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And Cary's going to lead us off by

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talking about a case called

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scrimmety and some related issues.

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Hi, everybody.

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Thanks for coming out here.

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It's great to see you.

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I am going to talk about a case

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called United States v.

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Skrmetti.

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This case was decided recently

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by the Supreme Court and involved a

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Tennessee law that

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banned gender affirming care for

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minors.

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Let me tell you a little bit about

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the law so that you can understand

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what the court did and didn't say.

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So, the law in

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Tennessee said,

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uh,

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no puberty blockers.

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Sex-related hormones or

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surgery for gender-affirming

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purposes for people under the age of

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18.

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We had a couple of transgender

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kids, their parents and a doctor,

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challenge that, saying it

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violated the equal protection clause

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of the 14th Amendment and violated

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the parents' rights to direct the

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upbringing of their children.

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The surgery question got knocked out

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of the case pretty early, because

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none of these kids were looking for

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surgery, had had surgery, so the

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court said, You don't have standing

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on that surgery question.

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So the challenge is, can Tennessee

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ban gender-affirming

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care for minors with

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respect to puberty

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blockers and cross-sex hormones?

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Here's what the Tennessee law says.

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It says, these

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puberty-blockers and sex-related

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hormones are prohibited

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if the prescriber

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is prescribing, administering, or

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dispensing these drugs only

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for the purpose of enabling

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the minor to identify

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with or live as a

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purported identity inconsistent with

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the minors' biological sex or

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for treating purportive discomfort

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or distress from a discordance

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between the minor's biological sex

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and the asserted

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identity.

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And the stated purpose of the law

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was, quote, to encourage minors to

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appreciate the sex they were born

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into and to prevent them from

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becoming disdainful of

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their sex.

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So what's

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one thing that's interesting

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and legally relevant about this law,

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is that the vast majority of

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times that puberty blockers and

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cross-sex hormones are prescribed

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in Tennessee, they're to cisgender

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kids. These drugs aren't that

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uncommon.

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They are prescribed for things

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like, quote, and the law exempts

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treatment of congenital defects,

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disease, I'll get you, precocious

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puberty, disease, or physical

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injury.

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So these drugs are still being

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prescribed frequently in

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Tennessee for minors.

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But only for purposes

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that are to bring

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the minor's body closer

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to the sex they were identified at

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birth. If you are using

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those drugs to take your sex

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in the other direction, that's

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what's prohibited.

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Okay, so you have conditions,

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just to be clear before I get to the

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law, conditions like hercetism.

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This is when girls grow facial

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hair and other parts of their

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body. They can get the

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drugs. To bring their gender

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more in conformance with norms.

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Boys who have gynecomastia, where

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they grow breast tissue, can get

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treatment to, surgery

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to remove that breast tissue.

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But if you're trying to move your

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body any other way, you can't get

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it. Okay, so the plaintiffs say,

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this is an equal protection

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violation for three reasons.

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One, the law discriminates on the

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basis of sex.

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Two kids come into the doctor's

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office and they both want to remove

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breast tissue the boy can do

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it and the girl can't, under

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Tennessee law.

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Uh, so they say this should get

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heightened concern from the court.

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The court should take a closer look

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because it discriminates on the

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basis of sex.

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The plaintiffs also say

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discriminates on the bases of

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transgender status.

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Cisgender kids can get these drugs

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for all the conditions that I just

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talked about transgender kids

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cannot get the drugs and the court,

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the plaintiff said you should take

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closer look for that reason too.

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And finally, the plane have said

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this law is based on animus.

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Tennessee leads the nation.

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They passed about in fact, double

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the number of anti-trans laws that

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other states have passed, they got

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bathroom bills, they got drag bills,

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they got schools have to report if

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your kid is transgender, they have

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to tell the parents, they have

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all the laws that

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you've heard about in the paper,

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they've got about twice as many as

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other states, and so

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the plaintiffs are saying this law

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is part of that campaign,

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00:09:18.370 --> 00:09:20.369
it's based on animus against this

290
00:09:20.370 --> 00:09:21.289
vulnerable group of people, and

291
00:09:21.290 --> 00:09:22.489
that's never a legitimate

292
00:09:22.490 --> 00:09:23.990
constitutional reason to pass law.

293
00:09:25.030 --> 00:09:27.129
So, as I mentioned before, they also

294
00:09:27.130 --> 00:09:28.939
argue that parents have a

295
00:09:28.940 --> 00:09:30.179
constitutional right to direct their

296
00:09:30.180 --> 00:09:32.679
upbringing of their own children.

297
00:09:32.680 --> 00:09:34.279
The plaintiffs said the American

298
00:09:34.280 --> 00:09:36.339
Medical Association, the American

299
00:09:36.340 --> 00:09:37.819
Academy of Pediatrics, the American

300
00:09:37.820 --> 00:09:39.139
Psychiatric Association, the

301
00:09:39.140 --> 00:09:40.979
American Psychology Association,

302
00:09:40.980 --> 00:09:43.299
the American academy of

303
00:09:43.300 --> 00:09:45.179
child adolescent psychology and all

304
00:09:45.180 --> 00:09:46.999
the leading medical

305
00:09:47.000 --> 00:09:48.499
organizations in the U.S.

306
00:09:48.500 --> 00:09:50.059
Approve the use of gender affirming

307
00:09:50.060 --> 00:09:52.339
care when it's indicated

308
00:09:52.340 --> 00:09:53.639
for minors.

309
00:09:53.640 --> 00:09:55.779
So the parents argued this should

310
00:09:55.780 --> 00:09:57.029
be left to us.

311
00:09:57.030 --> 00:09:58.949
And our doctors, not the

312
00:09:58.950 --> 00:10:00.749
legislature in Tennessee.

313
00:10:00.750 --> 00:10:03.089
They got to the Supreme Court on

314
00:10:03.090 --> 00:10:04.669
the equal protection claim, but the

315
00:10:04.670 --> 00:10:07.229
court did not take up the parents'

316
00:10:07.230 --> 00:10:08.230
rights claim.

317
00:10:10.470 --> 00:10:12.429
Supreme Court rejected all three

318
00:10:12.430 --> 00:10:13.709
equal protection claims.

319
00:10:13.710 --> 00:10:15.609
Court said, no, this law does

320
00:10:15.610 --> 00:10:17.549
not discriminate on the basis of sex

321
00:10:17.550 --> 00:10:19.869
because both

322
00:10:19.870 --> 00:10:21.749
boys and girls are

323
00:10:21.750 --> 00:10:23.189
prohibited from getting gender

324
00:10:23.190 --> 00:10:25.689
affirming care, purpose

325
00:10:25.690 --> 00:10:27.729
use of these drugs,

326
00:10:27.730 --> 00:10:29.729
and both boys or girls can get

327
00:10:29.730 --> 00:10:31.889
the drugs for other purposes,

328
00:10:31.890 --> 00:10:34.069
and so there's no line being drawn

329
00:10:34.070 --> 00:10:35.289
between boys and girl, no sex

330
00:10:35.290 --> 00:10:36.269
discrimination.

331
00:10:36.270 --> 00:10:37.809
They similarly say, no

332
00:10:37.810 --> 00:10:39.229
discrimination, this law does not

333
00:10:39.230 --> 00:10:40.509
discriminate on the basis of

334
00:10:40.510 --> 00:10:41.610
transgender status.

335
00:10:43.030 --> 00:10:44.949
Transgender and cisgender kids

336
00:10:44.950 --> 00:10:47.229
can get the drugs for precocious

337
00:10:47.230 --> 00:10:49.169
puberty, for hercetism, for

338
00:10:49.170 --> 00:10:50.989
gynecomastia, for any of the other

339
00:10:50.990 --> 00:10:52.649
conditions in which they're allowed

340
00:10:52.650 --> 00:10:54.649
in Tennessee, and no one can

341
00:10:54.650 --> 00:10:56.669
get them for

342
00:10:56.670 --> 00:10:58.510
gender-affirming care reasons

343
00:10:59.850 --> 00:11:01.449
that affirm your gender in a way

344
00:11:01.450 --> 00:11:02.689
that doesn't accord with your

345
00:11:02.690 --> 00:11:03.769
biological sex. So they're not

346
00:11:03.770 --> 00:11:04.949
drawing a line on the base of

347
00:11:04.950 --> 00:11:06.069
transgender.

348
00:11:06.070 --> 00:11:07.409
And finally, the court says there's

349
00:11:07.410 --> 00:11:08.849
no animus here.

350
00:11:08.850 --> 00:11:10.809
Legislators feel that this is an

351
00:11:10.810 --> 00:11:12.289
unproven medical treatment and they

352
00:11:12.290 --> 00:11:13.709
are looking out for the kids.

353
00:11:13.710 --> 00:11:15.589
That's a perfectly good reason to

354
00:11:15.590 --> 00:11:17.569
pass a law so we don't have a

355
00:11:17.570 --> 00:11:18.769
constitutional problem on the

356
00:11:18.770 --> 00:11:20.869
constitutional question we took.

357
00:11:20.870 --> 00:11:22.049
So I'll just finish with

358
00:11:22.050 --> 00:11:23.950
implications of scrimmety.

359
00:11:25.450 --> 00:11:27.189
I will say two things that point in

360
00:11:27.190 --> 00:11:27.989
different directions.

361
00:11:27.990 --> 00:11:28.990
One.

362
00:11:30.640 --> 00:11:32.439
It's interesting, I guess as a

363
00:11:32.440 --> 00:11:34.479
lawyer I feel like saying this

364
00:11:34.480 --> 00:11:36.119
could have been a lot more broadly

365
00:11:36.120 --> 00:11:37.159
decided.

366
00:11:38.340 --> 00:11:39.759
They could have said this is sex

367
00:11:39.760 --> 00:11:41.639
discrimination and that's okay.

368
00:11:41.640 --> 00:11:42.799
They could've said this

369
00:11:42.800 --> 00:11:44.299
discrimination against transgender

370
00:11:44.300 --> 00:11:46.059
people and that okay.

371
00:11:46.060 --> 00:11:47.959
There were concurring justices who

372
00:11:47.960 --> 00:11:50.359
did say those things and wanted

373
00:11:50.360 --> 00:11:51.559
that to be the whole thing in the

374
00:11:51.560 --> 00:11:53.299
case. The court did not say that.

375
00:11:53.300 --> 00:11:55.119
The court said, I think

376
00:11:55.120 --> 00:11:58.219
somewhat un-persuasively,

377
00:11:58.220 --> 00:11:59.359
but nonetheless.

378
00:11:59.360 --> 00:12:00.919
That this is not sex discrimination.

379
00:12:00.920 --> 00:12:01.759
This is not transgender

380
00:12:01.760 --> 00:12:02.559
discrimination.

381
00:12:02.560 --> 00:12:03.839
This is discrimination on the basis

382
00:12:03.840 --> 00:12:05.439
of age, and this is discrimination

383
00:12:05.440 --> 00:12:07.499
on the bases of medical treatment,

384
00:12:07.500 --> 00:12:08.879
and the state is allowed to make

385
00:12:08.880 --> 00:12:10.359
distinctions between minors and

386
00:12:10.360 --> 00:12:11.479
adults, and it's allowed to makes

387
00:12:11.480 --> 00:12:13.039
distinctions among different medical

388
00:12:13.040 --> 00:12:14.919
treatments. That's all that's going

389
00:12:14.920 --> 00:12:16.479
on here. Nothing much to see here,

390
00:12:16.480 --> 00:12:18.479
folks. If you look at it like that

391
00:12:18.480 --> 00:12:20.519
way, maybe this doesn't have huge

392
00:12:20.520 --> 00:12:22.519
implications for all the cases

393
00:12:22.520 --> 00:12:24.559
you're seeing in the newspaper, the

394
00:12:24.560 --> 00:12:26.439
sports, the bathrooms, the

395
00:12:26.440 --> 00:12:28.319
adult medical care, all that kind of

396
00:12:28.320 --> 00:12:29.689
stuff. As a lawyer, I can

397
00:12:29.690 --> 00:12:31.629
distinguish the holding in this

398
00:12:31.630 --> 00:12:34.449
case from all of those other cases.

399
00:12:34.450 --> 00:12:36.349
However, very

400
00:12:36.350 --> 00:12:38.509
recently, post-Skrmetti,

401
00:12:38.510 --> 00:12:40.389
the Supreme Court

402
00:12:40.390 --> 00:12:42.569
looked at four appellate

403
00:12:42.570 --> 00:12:44.049
court decisions.

404
00:12:44.050 --> 00:12:45.809
One was involving birth

405
00:12:45.810 --> 00:12:46.629
certificates. These are all

406
00:12:46.630 --> 00:12:47.809
transgender cases. One involved

407
00:12:47.810 --> 00:12:49.209
birth certificates, one involved

408
00:12:49.210 --> 00:12:50.909
public school teachers, medical

409
00:12:50.910 --> 00:12:52.769
programs covering transgender

410
00:12:52.770 --> 00:12:54.069
care, and one involved Medicaid

411
00:12:54.070 --> 00:12:55.769
covering transgender care for

412
00:12:55.770 --> 00:12:57.279
adults. And the court.

413
00:12:57.280 --> 00:12:59.279
And all of those four

414
00:12:59.280 --> 00:13:01.219
cases, the lower court

415
00:13:01.220 --> 00:13:02.559
found for the transgender

416
00:13:02.560 --> 00:13:04.899
plaintiffs, a few days ago,

417
00:13:04.900 --> 00:13:06.879
the Supreme Court vacated all

418
00:13:06.880 --> 00:13:08.779
of these decisions and said to

419
00:13:08.780 --> 00:13:09.859
those lower courts, you need to go

420
00:13:09.860 --> 00:13:11.479
back and reconsider your decision in

421
00:13:11.480 --> 00:13:12.480
light of Skrmetti.

422
00:13:13.340 --> 00:13:15.399
Now, I just said, but Scramitti

423
00:13:15.400 --> 00:13:16.679
doesn't maybe apply in those

424
00:13:16.680 --> 00:13:17.459
circumstances.

425
00:13:17.460 --> 00:13:20.039
This is a pretty strong signal that

426
00:13:20.040 --> 00:13:22.859
maybe the court thinks it does apply

427
00:13:22.860 --> 00:13:25.119
beyond the four corners of the

428
00:13:25.120 --> 00:13:26.259
decision.

429
00:13:26.260 --> 00:13:27.769
Two more things.

430
00:13:27.770 --> 00:13:29.669
The court just granted

431
00:13:29.670 --> 00:13:31.589
certs, some of you may have seen, in

432
00:13:31.590 --> 00:13:33.809
two cases involving sports.

433
00:13:33.810 --> 00:13:35.669
They will be heard this year and

434
00:13:35.670 --> 00:13:38.129
they will be decided next summer.

435
00:13:38.130 --> 00:13:39.689
Maybe we can talk about them exactly

436
00:13:39.690 --> 00:13:41.029
one year from now.

437
00:13:41.030 --> 00:13:42.889
These are cases out of Idaho and

438
00:13:42.890 --> 00:13:45.549
West Virginia where the states said

439
00:13:45.550 --> 00:13:47.389
transgender girls

440
00:13:47.390 --> 00:13:49.789
may not play on

441
00:13:49.790 --> 00:13:52.069
girls' sports teams from

442
00:13:52.070 --> 00:13:54.209
kindergarten through college.

443
00:13:54.210 --> 00:13:56.689
The Idaho law says

444
00:13:56.690 --> 00:13:58.389
Any individual in the state can

445
00:13:58.390 --> 00:14:00.229
challenge a girl on a

446
00:14:00.230 --> 00:14:02.369
team and she will be subjected

447
00:14:02.370 --> 00:14:04.189
to sex testing, including

448
00:14:04.190 --> 00:14:05.749
gynecological exams, if anyone

449
00:14:05.750 --> 00:14:07.409
thinks she might've been labeled

450
00:14:07.410 --> 00:14:08.649
male at birth.

451
00:14:08.650 --> 00:14:11.449
This only applies to girls sports

452
00:14:11.450 --> 00:14:13.389
that transgender girls cannot play

453
00:14:13.390 --> 00:14:14.229
in them.

454
00:14:14.230 --> 00:14:15.769
The plaintiffs are arguing that this

455
00:14:15.770 --> 00:14:17.509
is sex discrimination, they won

456
00:14:17.510 --> 00:14:19.329
below, but the Supreme Court granted

457
00:14:19.330 --> 00:14:21.369
cert. I do not think the trajectory

458
00:14:21.370 --> 00:14:22.749
is in the direction of the

459
00:14:22.750 --> 00:14:23.750
transgender plaintiffs.

460
00:14:25.800 --> 00:14:27.599
And then my final word, which

461
00:14:27.600 --> 00:14:29.519
transitions to Eugene, is

462
00:14:29.520 --> 00:14:31.339
they also did

463
00:14:31.340 --> 00:14:33.219
not take up, the parents

464
00:14:33.220 --> 00:14:35.159
in Tennessee said okay, well

465
00:14:35.160 --> 00:14:36.679
now we wanna bring our parents'

466
00:14:36.680 --> 00:14:39.399
rights claim to the court.

467
00:14:39.400 --> 00:14:41.499
And they lost below on

468
00:14:41.500 --> 00:14:43.399
that, the lower court

469
00:14:43.400 --> 00:14:44.779
said you do not have any

470
00:14:44.780 --> 00:14:46.119
constitutional rights as parents to

471
00:14:46.120 --> 00:14:47.459
make this decision for your kids.

472
00:14:47.460 --> 00:14:49.779
The state can legislate in this way.

473
00:14:49.780 --> 00:14:52.059
And then they let that decision

474
00:14:52.060 --> 00:14:53.179
stand.

475
00:14:53.180 --> 00:14:54.419
So they did, they.

476
00:14:54.420 --> 00:14:55.699
Found that this is something that

477
00:14:55.700 --> 00:14:56.939
the state could decide that parents

478
00:14:56.940 --> 00:14:58.279
don't have a right to make these

479
00:14:58.280 --> 00:14:59.839
medical choices.

480
00:14:59.840 --> 00:15:01.359
Eugene's gonna talk about some

481
00:15:01.360 --> 00:15:03.419
parents in a related case

482
00:15:03.420 --> 00:15:05.259
that fared better than the parents

483
00:15:05.260 --> 00:15:06.260
in my case.

484
00:15:06.930 --> 00:15:08.289
Thanks, Cary. You covered a lot of

485
00:15:08.290 --> 00:15:09.449
ground in a very short time.

486
00:15:09.450 --> 00:15:10.450
I appreciate it.

487
00:15:11.730 --> 00:15:13.349
And I am going to want to come back

488
00:15:13.350 --> 00:15:14.349
to you later and ask you about

489
00:15:14.350 --> 00:15:15.629
Justice Barrett's concurrence, which

490
00:15:15.630 --> 00:15:17.009
you briefly mentioned and the

491
00:15:17.010 --> 00:15:18.549
implications of that. But we're

492
00:15:18.550 --> 00:15:19.749
going to work our way first down the

493
00:15:19.750 --> 00:15:20.689
line.

494
00:15:20.690 --> 00:15:23.489
And Eugene, among the many things

495
00:15:23.490 --> 00:15:25.349
that he is an expert

496
00:15:25.350 --> 00:15:26.709
in, is the First Amendment.

497
00:15:26.710 --> 00:15:27.929
And there were some important speech

498
00:15:27.930 --> 00:15:29.369
and religion cases.

499
00:15:29.370 --> 00:15:30.989
And he's going to address a few of

500
00:15:30.990 --> 00:15:31.990
those.

501
00:15:32.570 --> 00:15:33.969
Hold the mic up.

502
00:15:33.970 --> 00:15:36.089
I'm going to talk about two cases

503
00:15:36.090 --> 00:15:38.089
that are, in some respects, very

504
00:15:38.090 --> 00:15:39.529
old, just as this was an issue

505
00:15:39.530 --> 00:15:40.749
that's very new. These were issues

506
00:15:40.750 --> 00:15:42.149
that were very old.

507
00:15:42.150 --> 00:15:44.109
I'm not going to about one new case,

508
00:15:44.110 --> 00:15:45.669
which is TikTok, because that was in

509
00:15:45.670 --> 00:15:47.629
January, which is

510
00:15:47.630 --> 00:15:49.669
like 20 in modern Supreme

511
00:15:49.670 --> 00:15:51.709
Court years ago.

512
00:15:51.710 --> 00:15:54.689
It's like, who even remembers that?

513
00:15:54.690 --> 00:15:56.449
So I'm gonna talk about Free Speech

514
00:15:56.450 --> 00:15:58.489
Coalition versus Paxton and

515
00:15:58.490 --> 00:15:59.929
about Mahmoud versus Taylor.

516
00:15:59.930 --> 00:16:02.409
So, free speech coalition.

517
00:16:02.410 --> 00:16:04.769
Upheld by a 6-3 vote, sort of

518
00:16:04.770 --> 00:16:07.309
the same conservative-liberal

519
00:16:07.310 --> 00:16:09.889
split, upheld a state

520
00:16:09.890 --> 00:16:11.929
law that

521
00:16:11.930 --> 00:16:13.929
basically requires age

522
00:16:13.930 --> 00:16:17.509
verification for

523
00:16:17.510 --> 00:16:19.469
online porn sites,

524
00:16:19.470 --> 00:16:21.609
sites that had at least one-third

525
00:16:21.610 --> 00:16:23.649
pornographic material.

526
00:16:23.650 --> 00:16:24.969
And here's the back story.

527
00:16:24.970 --> 00:16:26.489
So first of all, this issue had come

528
00:16:26.490 --> 00:16:29.109
up to the court before in 1968

529
00:16:29.110 --> 00:16:30.909
involving brick and mortar stores.

530
00:16:30.910 --> 00:16:32.499
And then in 2000.

531
00:16:32.500 --> 00:16:34.799
Re, I think, involving the

532
00:16:34.800 --> 00:16:36.619
then internet also.

533
00:16:36.620 --> 00:16:37.879
Quite different in some respects

534
00:16:37.880 --> 00:16:38.880
than the modern internet.

535
00:16:40.560 --> 00:16:42.739
And the court held

536
00:16:42.740 --> 00:16:44.319
different ways there, so it had to

537
00:16:44.320 --> 00:16:45.639
really resolve this tension.

538
00:16:45.640 --> 00:16:47.359
And it resolved it in favor of

539
00:16:47.360 --> 00:16:48.239
educating.

540
00:16:48.240 --> 00:16:50.279
So here, let me just give you the

541
00:16:50.280 --> 00:16:52.539
very quick rundown

542
00:16:52.540 --> 00:16:54.399
of the underlying legal regime.

543
00:16:58.030 --> 00:16:59.749
Most pornography, at least these

544
00:16:59.750 --> 00:17:01.409
days, is legal for adults.

545
00:17:01.410 --> 00:17:03.749
Technically, the government can ban

546
00:17:03.750 --> 00:17:05.449
certain kinds of porn, even for

547
00:17:05.450 --> 00:17:07.429
adults, but the war on pornography

548
00:17:07.430 --> 00:17:09.868
is over and porn has won,

549
00:17:09.869 --> 00:17:11.489
atleast where adults are concerned.

550
00:17:11.490 --> 00:17:13.309
So as a practical matter, adults

551
00:17:13.310 --> 00:17:15.129
have the legal right to access

552
00:17:15.130 --> 00:17:16.989
a great deal of material.

553
00:17:16.990 --> 00:17:18.889
But back in the 1968

554
00:17:18.890 --> 00:17:20.469
case, the court has said and has

555
00:17:20.470 --> 00:17:22.809
since reaffirmed that

556
00:17:22.810 --> 00:17:24.629
minors don't have a

557
00:17:24.630 --> 00:17:25.630
right to excess.

558
00:17:26.970 --> 00:17:28.269
Pornography, at least material

559
00:17:28.270 --> 00:17:30.329
that's obscene as to minors

560
00:17:30.330 --> 00:17:31.809
is the technical term.

561
00:17:31.810 --> 00:17:33.129
They have access, the right to

562
00:17:33.130 --> 00:17:34.609
access a good deal of material,

563
00:17:34.610 --> 00:17:36.589
including some that touches on sex,

564
00:17:36.590 --> 00:17:38.909
but not, but not

565
00:17:38.910 --> 00:17:40.149
pornographic material.

566
00:17:40.150 --> 00:17:42.429
So there is this zone of material.

567
00:17:42.430 --> 00:17:44.289
Pretty large zone, obscene

568
00:17:44.290 --> 00:17:45.729
as to minor's material, that's legal

569
00:17:45.730 --> 00:17:47.109
for adults.

570
00:17:47.110 --> 00:17:49.109
And, but

571
00:17:49.110 --> 00:17:50.629
unprotected, that's constitutionally

572
00:17:50.630 --> 00:17:52.089
protected for adults, unprotected

573
00:17:52.090 --> 00:17:53.329
for minors.

574
00:17:53.330 --> 00:17:54.729
And the court says,

575
00:17:57.110 --> 00:17:59.069
The challengers say, well, this is a

576
00:17:59.070 --> 00:18:00.949
restriction on speech based on

577
00:18:00.950 --> 00:18:02.029
its content.

578
00:18:02.030 --> 00:18:04.149
The speech is protected for adults.

579
00:18:04.150 --> 00:18:05.889
This law does interfere in some

580
00:18:05.890 --> 00:18:07.249
measure with the rights of access

581
00:18:07.250 --> 00:18:08.969
for adults, it makes them more

582
00:18:08.970 --> 00:18:10.509
hassle, maybe a bit more expense,

583
00:18:10.510 --> 00:18:12.329
and also interferes with privacy of

584
00:18:12.330 --> 00:18:13.289
access because you've got to be able

585
00:18:13.290 --> 00:18:15.389
to identify yourself possibly by

586
00:18:15.390 --> 00:18:17.189
showing your ID to the internet

587
00:18:17.190 --> 00:18:18.190
camera and such.

588
00:18:19.170 --> 00:18:20.249
So it burdens speech, so therefore

589
00:18:20.250 --> 00:18:21.889
it should be subject to so-called

590
00:18:21.890 --> 00:18:23.829
strict scrutiny, a pretty demanding

591
00:18:23.830 --> 00:18:24.769
test.

592
00:18:24.770 --> 00:18:27.429
And the court says, well, actually,

593
00:18:28.930 --> 00:18:30.849
when it comes to material that's

594
00:18:30.850 --> 00:18:31.989
constitutionally protected for

595
00:18:31.990 --> 00:18:34.369
adults, but not for minors,

596
00:18:34.370 --> 00:18:36.229
the government gets more latitude.

597
00:18:36.230 --> 00:18:37.949
So it gave some examples.

598
00:18:37.950 --> 00:18:39.029
Guns, guns are

599
00:18:39.030 --> 00:18:40.309
constitutionally-protected for

600
00:18:40.310 --> 00:18:42.189
adults but not

601
00:18:42.190 --> 00:18:43.009
from minors.

602
00:18:43.010 --> 00:18:44.089
What does that mean?

603
00:18:44.090 --> 00:18:45.949
Well, you can card people

604
00:18:45.950 --> 00:18:47.769
if they wanna buy a gun to

605
00:18:47.770 --> 00:18:48.949
check various things, including

606
00:18:48.950 --> 00:18:49.950
their age.

607
00:18:51.230 --> 00:18:53.119
Another example is voting.

608
00:18:53.120 --> 00:18:54.619
Voting is at least constitutionally

609
00:18:54.620 --> 00:18:56.519
protected. As a state constitutional

610
00:18:56.520 --> 00:18:57.919
matter, interesting question as a

611
00:18:57.920 --> 00:18:59.399
federal, but basically protected.

612
00:19:01.820 --> 00:19:03.519
And that's there.

613
00:19:03.520 --> 00:19:05.539
You can make sure that the person is

614
00:19:05.540 --> 00:19:07.519
indeed an adult.

615
00:19:07.520 --> 00:19:08.679
Right to marry.

616
00:19:08.680 --> 00:19:09.919
Adults have right to marry, children

617
00:19:09.920 --> 00:19:10.920
don't.

618
00:19:12.000 --> 00:19:14.099
So as a result, the court says,

619
00:19:14.100 --> 00:19:15.339
we're not going to apply strict

620
00:19:15.340 --> 00:19:16.299
scrutiny. We're going to play

621
00:19:16.300 --> 00:19:18.219
intermediate scrutiny, which is a

622
00:19:18.220 --> 00:19:20.309
less demanding standard.

623
00:19:20.310 --> 00:19:22.469
So interestingly, the dissenters,

624
00:19:22.470 --> 00:19:24.529
in an opinion by Justice Kagan,

625
00:19:24.530 --> 00:19:25.649
say, well, no, no.

626
00:19:25.650 --> 00:19:27.529
We should apply strict scrutiny.

627
00:19:27.530 --> 00:19:29.529
But we're not saying this

628
00:19:29.530 --> 00:19:31.349
law would fail strict scrutiny,

629
00:19:31.350 --> 00:19:32.829
such an important interest in

630
00:19:32.830 --> 00:19:34.669
protecting minors from

631
00:19:34.670 --> 00:19:35.969
sexually themed material.

632
00:19:35.970 --> 00:19:37.949
Maybe a properly crafted law

633
00:19:37.950 --> 00:19:40.069
can pass it, but it

634
00:19:40.070 --> 00:19:41.509
takes a lot to do that.

635
00:19:41.510 --> 00:19:43.889
And the majority says, no no no.

636
00:19:43.890 --> 00:19:45.209
Strict scrutiny really should be

637
00:19:45.210 --> 00:19:47.069
super duper mega strict.

638
00:19:47.070 --> 00:19:49.049
All the more reason not to apply

639
00:19:49.050 --> 00:19:50.119
it here.

640
00:19:50.120 --> 00:19:51.699
So the majority and the dissent both

641
00:19:51.700 --> 00:19:52.879
say they're trying to protect

642
00:19:52.880 --> 00:19:54.879
speech, even though the dissents

643
00:19:54.880 --> 00:19:55.799
here would be more speech

644
00:19:55.800 --> 00:19:57.039
protective. In this case, majority

645
00:19:57.040 --> 00:19:58.339
says more broadly we'd be more

646
00:19:58.340 --> 00:19:59.340
protective.

647
00:20:00.380 --> 00:20:04.019
Because we want to

648
00:20:04.020 --> 00:20:05.779
save strict scrutiny as a super

649
00:20:05.780 --> 00:20:07.639
strict test for most speech, just a

650
00:20:07.640 --> 00:20:09.279
somewhat narrower range of speech.

651
00:20:09.280 --> 00:20:10.899
Whereas the dissence says, well, we

652
00:20:10.900 --> 00:20:12.559
want have strict scrutiny cover a

653
00:20:12.560 --> 00:20:14.279
broader range of speech, but perhaps

654
00:20:14.280 --> 00:20:15.519
provide somewhat less strong

655
00:20:15.520 --> 00:20:16.379
protection.

656
00:20:16.380 --> 00:20:18.489
So that's the dispute there.

657
00:20:18.490 --> 00:20:20.069
Now let me turn to Mahmoud V.

658
00:20:20.070 --> 00:20:21.369
Taylor, which is a free exercise

659
00:20:21.370 --> 00:20:22.370
clause case.

660
00:20:23.130 --> 00:20:25.149
So for basically

661
00:20:25.150 --> 00:20:27.109
60 plus years, the court has

662
00:20:27.110 --> 00:20:28.929
been debating the question of

663
00:20:28.930 --> 00:20:31.089
whether religious objectors

664
00:20:31.090 --> 00:20:33.069
should get exemptions from generally

665
00:20:33.070 --> 00:20:34.210
applicable laws.

666
00:20:35.270 --> 00:20:38.289
Could be drug laws, could be

667
00:20:38.290 --> 00:20:40.949
various employment laws, could be

668
00:20:40.950 --> 00:20:43.329
requirements that you

669
00:20:43.330 --> 00:20:45.349
be available to work any

670
00:20:45.350 --> 00:20:46.849
day of the week as a condition of

671
00:20:46.850 --> 00:20:48.249
unemployment, compensation and such.

672
00:20:49.970 --> 00:20:51.909
1963, the court said yes,

673
00:20:51.910 --> 00:20:54.009
in an opinion by Justice Brennan.

674
00:20:54.010 --> 00:20:55.609
At the time, it was seen as a very

675
00:20:55.610 --> 00:20:56.690
liberal position,

676
00:20:57.810 --> 00:20:59.670
pro-religious exemptions.

677
00:21:00.870 --> 00:21:03.009
In 1990, the Court reversed course,

678
00:21:03.010 --> 00:21:04.609
in an opinions by Justice Scalia,

679
00:21:04.610 --> 00:21:06.069
saying no. Free exercise means

680
00:21:06.070 --> 00:21:08.349
freedom from targeted discrimination

681
00:21:08.350 --> 00:21:09.449
based on religion.

682
00:21:09.450 --> 00:21:11.329
But religious objectors have to

683
00:21:11.330 --> 00:21:12.409
live with the same laws that

684
00:21:12.410 --> 00:21:13.429
everybody else does.

685
00:21:13.430 --> 00:21:14.809
That was seen is a very conservative

686
00:21:14.810 --> 00:21:16.729
position. And Justice Brennen was in

687
00:21:16.730 --> 00:21:17.639
the descent there.

688
00:21:17.640 --> 00:21:19.519
So I oversimplify slightly, but it

689
00:21:19.520 --> 00:21:21.499
was basically

690
00:21:21.500 --> 00:21:23.599
the liberal ACLU position

691
00:21:23.600 --> 00:21:25.439
in favor of religious exemptions

692
00:21:25.440 --> 00:21:27.259
as a constitutionally mandated

693
00:21:27.260 --> 00:21:28.779
matter. Not in every situation,

694
00:21:28.780 --> 00:21:30.119
obviously, some laws you don't get

695
00:21:30.120 --> 00:21:31.339
exemptions from, but a strong

696
00:21:31.340 --> 00:21:33.179
presumption against subject to

697
00:21:33.180 --> 00:21:34.599
the strict scrutiny test.

698
00:21:36.160 --> 00:21:37.899
Whereas conservatives said no, no

699
00:21:37.900 --> 00:21:39.679
special rights for religious

700
00:21:39.680 --> 00:21:40.879
objectors.

701
00:21:40.880 --> 00:21:42.439
Interesting thing is from recent

702
00:21:42.440 --> 00:21:44.259
opinions, it looks like the

703
00:21:44.260 --> 00:21:45.579
ideology on the issue has flipped

704
00:21:45.580 --> 00:21:47.449
100%.

705
00:21:47.450 --> 00:21:48.969
Conservatives are now in favor of

706
00:21:48.970 --> 00:21:50.249
religious exemptions, and liberals

707
00:21:50.250 --> 00:21:51.169
are against it.

708
00:21:51.170 --> 00:21:52.809
So conservatives are taking up

709
00:21:52.810 --> 00:21:54.689
Justice Brennan's cause, and the

710
00:21:54.690 --> 00:21:56.469
liberals, Justice Scalia's.

711
00:21:57.930 --> 00:21:59.769
So it was thought that

712
00:21:59.770 --> 00:22:01.789
maybe this case would actually

713
00:22:01.790 --> 00:22:03.789
raise this very issue in the big

714
00:22:03.790 --> 00:22:04.649
picture scheme.

715
00:22:04.650 --> 00:22:06.109
Because what was happening is that

716
00:22:06.110 --> 00:22:08.529
parents were saying, and this is

717
00:22:08.530 --> 00:22:10.689
religiously conservative parents, a

718
00:22:10.690 --> 00:22:12.729
Muslim couple, a Catholic couple,

719
00:22:12.730 --> 00:22:13.909
and then a couple which makes

720
00:22:13.910 --> 00:22:15.709
Catholic and Ukrainian Orthodox.

721
00:22:15.710 --> 00:22:17.709
They said We want an

722
00:22:17.710 --> 00:22:20.689
exemption from an

723
00:22:20.690 --> 00:22:22.429
opt-out of our kids from certain

724
00:22:22.430 --> 00:22:24.869
books in their

725
00:22:24.870 --> 00:22:26.849
actually very early grade reading

726
00:22:26.850 --> 00:22:29.709
assignments that

727
00:22:29.710 --> 00:22:31.689
the books were deliberately

728
00:22:31.690 --> 00:22:33.809
had characters

729
00:22:33.810 --> 00:22:35.329
that were gay and lesbian and

730
00:22:35.330 --> 00:22:37.169
transgender as a means

731
00:22:37.170 --> 00:22:39.009
of trying to kind of convey

732
00:22:39.010 --> 00:22:40.289
acceptance of.

733
00:22:40.290 --> 00:22:42.629
Of different, oh, there

734
00:22:42.630 --> 00:22:44.289
you go, props.

735
00:22:44.290 --> 00:22:46.109
It was heavily illustrated in

736
00:22:46.110 --> 00:22:48.349
color, the opinion was.

737
00:22:48.350 --> 00:22:50.429
It's unusually visual as

738
00:22:50.430 --> 00:22:51.729
opinions go.

739
00:22:51.730 --> 00:22:53.569
So I appreciate seeing these props

740
00:22:53.570 --> 00:22:54.509
here.

741
00:22:54.510 --> 00:22:56.549
So in any event,

742
00:22:56.550 --> 00:22:58.449
the court did not decide

743
00:22:58.450 --> 00:23:00.269
this big picture question of

744
00:23:00.270 --> 00:23:02.149
religious exemptions.

745
00:23:02.150 --> 00:23:04.029
It didn't say, oh there's a general

746
00:23:04.030 --> 00:23:05.309
right to religious exempts.

747
00:23:05.310 --> 00:23:07.479
Rather it said,

748
00:23:07.480 --> 00:23:09.279
This is a special case about,

749
00:23:09.280 --> 00:23:10.819
indeed, parental rights, but not

750
00:23:10.820 --> 00:23:11.979
parental rights writ large.

751
00:23:11.980 --> 00:23:13.239
It turns out, I think, parental

752
00:23:13.240 --> 00:23:14.799
right system medical care are

753
00:23:14.800 --> 00:23:16.499
actually quite a bit narrower.

754
00:23:16.500 --> 00:23:17.999
And maybe we'll talk about that

755
00:23:18.000 --> 00:23:19.859
later. But parents

756
00:23:19.860 --> 00:23:22.019
have a presumptive right

757
00:23:22.020 --> 00:23:23.939
not to have their kids be

758
00:23:23.940 --> 00:23:25.879
taught things

759
00:23:25.880 --> 00:23:28.039
that undermine their

760
00:23:28.040 --> 00:23:29.179
religious teachings.

761
00:23:29.180 --> 00:23:30.759
It's all about teaching.

762
00:23:30.760 --> 00:23:32.059
Not general parental rights but

763
00:23:32.060 --> 00:23:33.919
parental rights to control the

764
00:23:33.920 --> 00:23:35.699
kids' teaching that bears on their

765
00:23:35.700 --> 00:23:36.569
religious beliefs.

766
00:23:36.570 --> 00:23:38.269
There was an earlier case, Wisconsin

767
00:23:38.270 --> 00:23:40.089
v. Yoder, which involved the Amish

768
00:23:40.090 --> 00:23:42.349
and exemption from compulsory

769
00:23:42.350 --> 00:23:44.809
education law into high school.

770
00:23:44.810 --> 00:23:46.929
That, though, involved

771
00:23:46.930 --> 00:23:48.789
compulsory education where the sense

772
00:23:48.790 --> 00:23:50.629
that you had to send your

773
00:23:50.630 --> 00:23:51.630
kids to school.

774
00:23:52.870 --> 00:23:55.029
Here, this was actually a

775
00:23:55.030 --> 00:23:56.489
claim of exemptions from public

776
00:23:56.490 --> 00:23:58.029
school curriculum, although there,

777
00:23:58.030 --> 00:23:59.889
too, the claim was we have to send

778
00:23:59.890 --> 00:24:01.169
our kids to a school we may not be

779
00:24:01.170 --> 00:24:02.349
able to afford to send them to

780
00:24:02.350 --> 00:24:03.229
private school.

781
00:24:03.230 --> 00:24:04.569
But the court said there is a

782
00:24:04.570 --> 00:24:06.999
presumptive right to exemption.

783
00:24:07.000 --> 00:24:11.379
From these kinds of,

784
00:24:11.380 --> 00:24:13.459
not even these kinds, any kind

785
00:24:13.460 --> 00:24:16.039
of curriculum items that

786
00:24:16.040 --> 00:24:18.339
you sincerely

787
00:24:18.340 --> 00:24:20.299
believe interfere

788
00:24:20.300 --> 00:24:22.539
with your religious teachings.

789
00:24:22.540 --> 00:24:24.339
So it wasn't limited to gay and

790
00:24:24.340 --> 00:24:26.439
lesbian and trans-themed things.

791
00:24:26.440 --> 00:24:28.099
It would cover, presumably, people

792
00:24:28.100 --> 00:24:32.359
who have objection to

793
00:24:32.360 --> 00:24:34.239
a teaching that is

794
00:24:34.240 --> 00:24:35.679
a teaching of evolution.

795
00:24:35.680 --> 00:24:36.979
May cover people who have objections

796
00:24:36.980 --> 00:24:38.299
to teaching of patriotism.

797
00:24:38.300 --> 00:24:40.059
I know some Jehovah's Witnesses may

798
00:24:40.060 --> 00:24:41.539
have such objections.

799
00:24:41.540 --> 00:24:43.959
They cover perhaps

800
00:24:43.960 --> 00:24:45.140
pacifist's objection

801
00:24:46.200 --> 00:24:48.139
to teaching that they

802
00:24:48.140 --> 00:24:49.839
see as glamorizing war.

803
00:24:49.840 --> 00:24:51.859
Could be a very long list of

804
00:24:51.860 --> 00:24:53.839
things. So potentially, quite a

805
00:24:53.840 --> 00:24:56.959
substantial impact

806
00:24:56.960 --> 00:24:58.299
on many schools, which will have to

807
00:24:58.300 --> 00:24:59.439
deal with these opt-outs.

808
00:24:59.440 --> 00:25:00.759
Although the court did mention that

809
00:25:00.760 --> 00:25:02.669
modern Public

810
00:25:02.670 --> 00:25:04.389
education already requires a lot of

811
00:25:04.390 --> 00:25:05.590
opt-outs, whether for English as a

812
00:25:05.591 --> 00:25:07.369
second language or for individual

813
00:25:07.370 --> 00:25:09.269
education programs and such.

814
00:25:09.270 --> 00:25:11.109
So didn't resolve this big

815
00:25:11.110 --> 00:25:12.649
picture, Scalia versus Brennan

816
00:25:12.650 --> 00:25:14.709
question, but did say that there

817
00:25:14.710 --> 00:25:16.909
is a presumptive right of

818
00:25:16.910 --> 00:25:18.949
parents to exemption of

819
00:25:18.950 --> 00:25:20.809
their kids from

820
00:25:20.810 --> 00:25:22.669
teaching, including purely secular

821
00:25:22.670 --> 00:25:24.629
teaching, that they see as

822
00:25:24.630 --> 00:25:26.489
interfering with

823
00:25:26.490 --> 00:25:28.589
their kind of religious messages

824
00:25:28.590 --> 00:25:29.810
to their kids.

825
00:25:31.129 --> 00:25:32.129
Thank you, Eugene.

826
00:25:36.470 --> 00:25:37.909
Now that we've covered the easy,

827
00:25:37.910 --> 00:25:39.829
non-controversial stuff, we're going

828
00:25:39.830 --> 00:25:41.649
to turn to the topic of

829
00:25:41.650 --> 00:25:42.609
immigration.

830
00:25:42.610 --> 00:25:44.569
And every morning I wake up, and

831
00:25:44.570 --> 00:25:46.529
I'm glad that I'm not an immigration

832
00:25:46.530 --> 00:25:48.369
law expert like Jennifer is, because

833
00:25:48.370 --> 00:25:50.289
I don't know how to even keep up

834
00:25:50.290 --> 00:25:52.209
with the reading, much less be

835
00:25:52.210 --> 00:25:54.169
able to form opinions on

836
00:25:54.170 --> 00:25:55.309
this.

837
00:25:55.310 --> 00:25:57.189
What can you tell us about how

838
00:25:57.190 --> 00:25:58.729
the Supreme Court has approached

839
00:25:58.730 --> 00:26:00.409
these immigration questions that

840
00:26:00.410 --> 00:26:02.469
have been coming to the fore

841
00:26:02.470 --> 00:26:04.549
since the change in presidential

842
00:26:04.550 --> 00:26:05.319
administrations.

843
00:26:05.320 --> 00:26:06.959
Well, first, thank you for having me

844
00:26:06.960 --> 00:26:08.559
here, and it's really an honor to be

845
00:26:08.560 --> 00:26:10.479
up here with all of these

846
00:26:10.480 --> 00:26:11.679
esteemed people.

847
00:26:12.760 --> 00:26:13.899
In answer to your question, I feel

848
00:26:13.900 --> 00:26:15.759
like the immigration issue

849
00:26:15.760 --> 00:26:17.619
brings us to the existential crisis

850
00:26:17.620 --> 00:26:20.019
moment, existential nationally,

851
00:26:20.020 --> 00:26:21.839
but also just thinking

852
00:26:21.840 --> 00:26:24.159
about this panel and what we do

853
00:26:24.160 --> 00:26:26.259
at this Supreme Court review event

854
00:26:26.260 --> 00:26:28.159
every year, which is usually

855
00:26:28.160 --> 00:26:30.059
we talk and we've just seen sort

856
00:26:30.060 --> 00:26:31.959
of the traditional approach to this

857
00:26:31.960 --> 00:26:33.349
event, which the kind of.

858
00:26:33.350 --> 00:26:35.129
Pick a couple of big cases in an

859
00:26:35.130 --> 00:26:37.109
area. Talk about those big

860
00:26:37.110 --> 00:26:38.969
cases. So in past years,

861
00:26:38.970 --> 00:26:40.609
when I've spoken on panels like

862
00:26:40.610 --> 00:26:42.589
this, United States versus Arizona,

863
00:26:42.590 --> 00:26:44.749
a big federalism case that

864
00:26:44.750 --> 00:26:46.929
came out of Arizona, or

865
00:26:46.930 --> 00:26:49.109
Trump versus Hawaii, those big

866
00:26:49.110 --> 00:26:51.769
merits decisions adjudicated

867
00:26:51.770 --> 00:26:53.789
through traditional mechanisms

868
00:26:53.790 --> 00:26:55.369
working its way up to the Supreme

869
00:26:55.370 --> 00:26:57.369
Court, where oral argument

870
00:26:57.370 --> 00:26:58.589
is heard by the court and where you

871
00:26:58.590 --> 00:27:00.559
get a reasoned opinion,

872
00:27:00.560 --> 00:27:01.859
whether you like it or don't.

873
00:27:01.860 --> 00:27:03.639
It's a reason opinion that the court

874
00:27:03.640 --> 00:27:05.859
gives you about the case.

875
00:27:05.860 --> 00:27:07.799
And if I were doing that

876
00:27:07.800 --> 00:27:09.699
in immigration today, I

877
00:27:09.700 --> 00:27:11.219
would be talking to you about Riley

878
00:27:11.220 --> 00:27:13.279
versus Bondy and you would yawn

879
00:27:13.280 --> 00:27:14.959
and you would maybe take this

880
00:27:14.960 --> 00:27:16.599
opportunity to go to the restroom.

881
00:27:16.600 --> 00:27:17.999
It's interesting to immigration

882
00:27:18.000 --> 00:27:19.879
lawyers, but it really, it was not a

883
00:27:19.880 --> 00:27:21.719
headline case and it isn't

884
00:27:21.720 --> 00:27:24.519
something probably that would be

885
00:27:24.520 --> 00:27:25.759
useful on a panel like this.

886
00:27:25.760 --> 00:27:27.789
And so it's interesting that when

887
00:27:27.790 --> 00:27:28.829
Rick asked me to talk about

888
00:27:28.830 --> 00:27:30.649
immigration. What I'm looking at

889
00:27:30.650 --> 00:27:32.009
and talking about and thinking about

890
00:27:32.010 --> 00:27:34.329
is not the big merits cases,

891
00:27:34.330 --> 00:27:36.609
but instead the emergency

892
00:27:36.610 --> 00:27:38.329
docket or shadow docket cases, which

893
00:27:38.330 --> 00:27:39.509
is where the Supreme Court has done

894
00:27:39.510 --> 00:27:42.029
most of its work in immigration.

895
00:27:42.030 --> 00:27:44.309
And so as I'm sure we'll talk about

896
00:27:44.310 --> 00:27:46.269
more, we've seen an

897
00:27:46.270 --> 00:27:48.749
extraordinary number of

898
00:27:48.750 --> 00:27:50.049
pitches by the Trump administration

899
00:27:50.050 --> 00:27:51.469
to the Supreme court for emergency

900
00:27:51.470 --> 00:27:52.649
relief.

901
00:27:52.650 --> 00:27:54.729
The Supreme court has granted

902
00:27:54.730 --> 00:27:56.799
emergency relief in 20 cases.

903
00:27:56.800 --> 00:27:58.699
Since January, so this is sort of an

904
00:27:58.700 --> 00:28:01.099
extraordinary number of

905
00:28:01.100 --> 00:28:02.379
interventions on the part of the

906
00:28:02.380 --> 00:28:04.199
Supreme Court, sort of jumping the

907
00:28:04.200 --> 00:28:05.719
line in terms of procedure so we're

908
00:28:05.720 --> 00:28:07.579
not watching cases work their way

909
00:28:07.580 --> 00:28:08.939
up to the court, and also being

910
00:28:08.940 --> 00:28:10.759
decided in ways that look very

911
00:28:10.760 --> 00:28:11.839
different.

912
00:28:11.840 --> 00:28:13.519
And in all of the cases that I'm

913
00:28:13.520 --> 00:28:15.359
talking about, really not

914
00:28:15.360 --> 00:28:17.319
having a long reasoned opinion

915
00:28:17.320 --> 00:28:18.879
from the majority of the court

916
00:28:18.880 --> 00:28:20.639
justifying the decisions that it's

917
00:28:20.640 --> 00:28:22.559
making. So that I think raises

918
00:28:22.560 --> 00:28:24.499
questions about what we do here, how

919
00:28:24.500 --> 00:28:25.938
we handle this.

920
00:28:25.939 --> 00:28:27.499
We usually talk about this as a

921
00:28:27.500 --> 00:28:29.419
Supreme Court in review

922
00:28:29.420 --> 00:28:30.999
panel, but the Supreme Court is

923
00:28:31.000 --> 00:28:32.299
still going.

924
00:28:32.300 --> 00:28:34.799
The October term is not over.

925
00:28:34.800 --> 00:28:36.619
And even as we sit here, things are

926
00:28:36.620 --> 00:28:38.259
percolating up to the court in this

927
00:28:38.260 --> 00:28:39.539
emergency way.

928
00:28:39.540 --> 00:28:40.539
And so I think one of the questions

929
00:28:40.540 --> 00:28:41.839
that we'll probably want to wrestle

930
00:28:41.840 --> 00:28:43.599
with is what, maybe what this means

931
00:28:43.600 --> 00:28:44.699
for us, but certainly what this

932
00:28:44.700 --> 00:28:45.799
means for the court and what it

933
00:28:45.800 --> 00:28:46.599
does.

934
00:28:46.600 --> 00:28:47.939
When we look at immigration, then

935
00:28:47.940 --> 00:28:49.979
the things that are interesting are

936
00:28:49.980 --> 00:28:51.659
these emergency docket

937
00:28:51.660 --> 00:28:52.649
interventions.

938
00:28:52.650 --> 00:28:54.469
The first that I was going to

939
00:28:54.470 --> 00:28:55.989
talk about was the Abrego Garcia

940
00:28:55.990 --> 00:28:57.889
case, which probably most of you

941
00:28:57.890 --> 00:28:59.649
have been following or have heard

942
00:28:59.650 --> 00:29:01.389
about. This is a case involving

943
00:29:01.390 --> 00:29:03.369
Gilmar Abrega Garcia,

944
00:29:03.370 --> 00:29:05.229
who's a national of El Salvador.

945
00:29:05.230 --> 00:29:06.749
He's been in the United States for

946
00:29:06.750 --> 00:29:07.989
some time now. He entered without

947
00:29:07.990 --> 00:29:09.109
authorization.

948
00:29:09.110 --> 00:29:11.269
But he, in 2019, was granted

949
00:29:11.270 --> 00:29:12.809
withholding of removal, which means

950
00:29:12.810 --> 00:29:14.489
that there's a court order that says

951
00:29:14.490 --> 00:29:16.169
that he cannot be removed to his

952
00:29:16.170 --> 00:29:18.549
country of nationality, El Salvador,

953
00:29:18.550 --> 00:29:20.949
because he, there's,

954
00:29:20.950 --> 00:29:22.169
of likelihood that he will be

955
00:29:22.170 --> 00:29:23.449
persecuted on one of the grounds

956
00:29:23.450 --> 00:29:25.109
that are protected by international

957
00:29:25.110 --> 00:29:26.309
and domestic law.

958
00:29:26.310 --> 00:29:27.749
So he's not supposed to be removed

959
00:29:27.750 --> 00:29:29.170
to El Salvador. And yet,

960
00:29:30.210 --> 00:29:32.289
as you may have heard,

961
00:29:32.290 --> 00:29:33.249
he was.

962
00:29:33.250 --> 00:29:34.709
He was part of a group of people,

963
00:29:34.710 --> 00:29:36.209
I'll talk more about some of the

964
00:29:36.210 --> 00:29:38.029
other people in that group in

965
00:29:38.030 --> 00:29:39.849
a moment, who was removed to

966
00:29:39.850 --> 00:29:42.009
el Salvador, placed in a Salvadoran

967
00:29:42.010 --> 00:29:43.589
prison, Asaqot,

968
00:29:45.090 --> 00:29:46.729
and wasn't supposed to there.

969
00:29:46.730 --> 00:29:48.069
And so,

970
00:29:49.230 --> 00:29:50.129
there was a...

971
00:29:50.130 --> 00:29:51.949
Litigation over, you know, his

972
00:29:51.950 --> 00:29:53.169
lawyers filed lawsuits.

973
00:29:53.170 --> 00:29:55.269
There was an effort to get him out,

974
00:29:55.270 --> 00:29:57.769
and the Trump administration was

975
00:29:57.770 --> 00:29:59.669
taking the position before the

976
00:29:59.670 --> 00:30:01.009
district court that actually they

977
00:30:01.010 --> 00:30:02.449
had no control. He was in El

978
00:30:02.450 --> 00:30:04.089
Salvador, and, you know, that's

979
00:30:04.090 --> 00:30:05.889
just, that the breaks.

980
00:30:05.890 --> 00:30:07.449
And Judge Zines, district court

981
00:30:07.450 --> 00:30:09.349
Judge Ziness, was not

982
00:30:09.350 --> 00:30:10.769
impressed with that answer and said

983
00:30:10.770 --> 00:30:12.489
that she wanted them and ordered

984
00:30:12.490 --> 00:30:14.689
them to

985
00:30:14.690 --> 00:30:17.009
facilitate his removal

986
00:30:17.010 --> 00:30:18.789
or his return to the United States

987
00:30:18.790 --> 00:30:19.769
so that.

988
00:30:19.770 --> 00:30:21.609
Any removal could be

989
00:30:21.610 --> 00:30:23.349
considered in a normal way, in a

990
00:30:23.350 --> 00:30:24.489
procedurally appropriate way.

991
00:30:25.570 --> 00:30:28.449
And the Trump administration was

992
00:30:28.450 --> 00:30:30.009
really resistant to this idea that

993
00:30:30.010 --> 00:30:31.969
they could or should bring him

994
00:30:31.970 --> 00:30:34.109
back. They raised the

995
00:30:34.110 --> 00:30:36.009
argument that this is a sphere

996
00:30:36.010 --> 00:30:37.669
of foreign policy, that this court

997
00:30:37.670 --> 00:30:38.829
shouldn't be involved in this at

998
00:30:38.830 --> 00:30:40.709
all. And this is one place

999
00:30:40.710 --> 00:30:42.589
where the Supreme Court intervened

1000
00:30:42.590 --> 00:30:44.809
in a way that was affirming

1001
00:30:44.810 --> 00:30:47.649
of the district court's

1002
00:30:47.650 --> 00:30:48.650
order.

1003
00:30:49.190 --> 00:30:51.449
And the Supreme Court

1004
00:30:51.450 --> 00:30:54.509
ultimately said that, yes, indeed,

1005
00:30:54.510 --> 00:30:56.349
while they said that

1006
00:30:56.350 --> 00:30:57.989
Judge Sinis needed to re-craft her

1007
00:30:57.990 --> 00:30:59.549
order in a way that made it clear

1008
00:30:59.550 --> 00:31:01.129
that the court was not trying to

1009
00:31:01.130 --> 00:31:02.349
interfere in foreign affairs

1010
00:31:02.350 --> 00:31:04.709
matters, the Trump administration,

1011
00:31:04.710 --> 00:31:05.989
she could indeed order the Trump

1012
00:31:05.990 --> 00:31:08.469
Administration to facilitate Rodrigo

1013
00:31:08.470 --> 00:31:10.329
Garcia's return to the United

1014
00:31:10.330 --> 00:31:11.289
States.

1015
00:31:11.290 --> 00:31:13.089
And so the matter returned to the

1016
00:31:13.090 --> 00:31:15.069
district court, further shenanigans

1017
00:31:15.070 --> 00:31:16.989
unfolded, you probably heard about

1018
00:31:16.990 --> 00:31:18.249
some of these things.

1019
00:31:18.250 --> 00:31:20.069
Real questions about what the

1020
00:31:20.070 --> 00:31:21.729
Trump administration's authority was

1021
00:31:21.730 --> 00:31:23.249
over Abrego Garcia and whether they

1022
00:31:23.250 --> 00:31:24.349
could bring him back.

1023
00:31:24.350 --> 00:31:26.649
He is now back and

1024
00:31:26.650 --> 00:31:28.729
facing criminal prosecution

1025
00:31:28.730 --> 00:31:31.169
for smuggling

1026
00:31:31.170 --> 00:31:32.289
charges that the Department of

1027
00:31:32.290 --> 00:31:34.229
Justice has now brought against him.

1028
00:31:34.230 --> 00:31:36.049
He's detained in part because there

1029
00:31:36.050 --> 00:31:37.209
is concern that if he's released

1030
00:31:37.210 --> 00:31:39.429
from detention then ICE

1031
00:31:39.430 --> 00:31:41.489
or DHS could remove him again.

1032
00:31:41.490 --> 00:31:43.449
And so he's now awaiting

1033
00:31:43.450 --> 00:31:45.629
criminal prosecution in

1034
00:31:45.630 --> 00:31:46.630
that case.

1035
00:31:47.610 --> 00:31:49.549
Relatedly, there were, there are

1036
00:31:49.550 --> 00:31:51.529
a number of cases that relate to

1037
00:31:51.530 --> 00:31:53.249
individuals who have been removed by

1038
00:31:53.250 --> 00:31:55.509
the Trump administration, pursuant

1039
00:31:55.510 --> 00:31:57.329
to the Trump Administration's

1040
00:31:57.330 --> 00:31:59.149
purported authority under the

1041
00:31:59.150 --> 00:32:00.889
Alien Enemies Act.

1042
00:32:00.890 --> 00:32:03.149
And so the Trump, or President

1043
00:32:03.150 --> 00:32:05.089
Trump, issued an executive

1044
00:32:05.090 --> 00:32:07.149
order where he

1045
00:32:07.150 --> 00:32:08.989
claimed that

1046
00:32:08.990 --> 00:32:10.730
the Tren de Aragó Gang,

1047
00:32:12.650 --> 00:32:14.069
all of the members of the Trem de

1048
00:32:14.070 --> 00:32:16.169
Aragon Gang from Venezuela.

1049
00:32:16.170 --> 00:32:18.109
Were alien enemies who were invading

1050
00:32:18.110 --> 00:32:18.929
the United States.

1051
00:32:18.930 --> 00:32:20.349
And that gives him extraordinary

1052
00:32:20.350 --> 00:32:22.549
powers to remove them

1053
00:32:22.550 --> 00:32:24.429
outside of the bounds of sort of

1054
00:32:24.430 --> 00:32:26.430
normal immigration processes.

1055
00:32:28.130 --> 00:32:30.089
And as a consequence

1056
00:32:30.090 --> 00:32:32.129
of this order, we saw the Department

1057
00:32:32.130 --> 00:32:33.909
of Homeland Security identify a

1058
00:32:33.910 --> 00:32:35.889
number of Venezuelan migrants

1059
00:32:35.890 --> 00:32:38.089
as Tren de Aragua members and

1060
00:32:38.090 --> 00:32:40.369
remove them to Secot, the same

1061
00:32:40.370 --> 00:32:42.409
facility where Abrego

1062
00:32:42.410 --> 00:32:44.209
Garcia was removed.

1063
00:32:44.210 --> 00:32:46.029
And so we have Venezuelan

1064
00:32:46.030 --> 00:32:48.409
nationals removed without

1065
00:32:48.410 --> 00:32:50.649
process and in

1066
00:32:50.650 --> 00:32:52.829
a Salvadoran prison.

1067
00:32:52.830 --> 00:32:54.909
And this is another case where

1068
00:32:54.910 --> 00:32:57.069
we saw the

1069
00:32:57.070 --> 00:32:58.449
federal district court judge, in

1070
00:32:58.450 --> 00:33:00.949
this case, Judge Bosberg,

1071
00:33:00.950 --> 00:33:03.049
ordering the administration to,

1072
00:33:03.050 --> 00:33:04.329
first of all, not remove these

1073
00:33:04.330 --> 00:33:06.309
individuals on grounds

1074
00:33:06.310 --> 00:33:08.329
of the Enemy Aliens Act without

1075
00:33:08.330 --> 00:33:09.469
proper process.

1076
00:33:09.470 --> 00:33:10.709
And second, when those individuals

1077
00:33:10.710 --> 00:33:12.149
are removed, a seemingly in

1078
00:33:12.150 --> 00:33:14.299
violation of his order.

1079
00:33:14.300 --> 00:33:16.179
Ordering them to return those

1080
00:33:16.180 --> 00:33:18.299
individuals to the United States

1081
00:33:18.300 --> 00:33:20.179
and and to ensure that they

1082
00:33:20.180 --> 00:33:22.059
had appropriate process and

1083
00:33:22.060 --> 00:33:25.039
here the Supreme Court intervened to

1084
00:33:25.040 --> 00:33:27.599
clarify the way in which

1085
00:33:27.600 --> 00:33:29.420
individuals had to see

1086
00:33:31.769 --> 00:33:33.769
protection and said,

1087
00:33:33.770 --> 00:33:36.629
if you're going to challenge the

1088
00:33:36.630 --> 00:33:38.669
administration's removal of

1089
00:33:38.670 --> 00:33:40.609
individuals under the Alien Enemies

1090
00:33:40.610 --> 00:33:42.849
Act, then you need to bring these

1091
00:33:42.850 --> 00:33:45.189
proceedings as habeas proceedings.

1092
00:33:45.190 --> 00:33:48.329
And so the

1093
00:33:48.330 --> 00:33:50.069
court affirmed that individuals

1094
00:33:50.070 --> 00:33:51.929
should have access to process

1095
00:33:51.930 --> 00:33:53.809
here. They should have notice

1096
00:33:53.810 --> 00:33:54.849
and they should have some

1097
00:33:54.850 --> 00:33:56.009
opportunity to be heard.

1098
00:33:56.010 --> 00:33:58.369
The appropriate vehicle

1099
00:33:58.370 --> 00:33:59.809
for bringing these challenges, the

1100
00:33:59.810 --> 00:34:01.238
court said is.

1101
00:34:01.239 --> 00:34:02.439
Habeas actions.

1102
00:34:02.440 --> 00:34:03.739
There are a variety of reasons this

1103
00:34:03.740 --> 00:34:06.079
is interesting and

1104
00:34:06.080 --> 00:34:07.959
somewhat surprising, given some

1105
00:34:07.960 --> 00:34:09.819
of the court's decisions just

1106
00:34:09.820 --> 00:34:11.379
a couple of terms ago.

1107
00:34:11.380 --> 00:34:12.919
It's not clear that habeas is the

1108
00:34:12.920 --> 00:34:14.238
right course of action, but that's

1109
00:34:14.239 --> 00:34:16.119
probably more in the weeds than we

1110
00:34:16.120 --> 00:34:17.198
want to get.

1111
00:34:17.199 --> 00:34:18.379
But the court said that's the right

1112
00:34:18.380 --> 00:34:20.099
way, and that's how we should

1113
00:34:20.100 --> 00:34:21.218
proceed.

1114
00:34:21.219 --> 00:34:22.959
And one consequence of this is we

1115
00:34:22.960 --> 00:34:24.658
have individuals who are still in

1116
00:34:24.659 --> 00:34:26.658
secuote, who have never

1117
00:34:26.659 --> 00:34:28.559
at this point had a hearing as to

1118
00:34:28.560 --> 00:34:29.869
whether they are in fact.

1119
00:34:29.870 --> 00:34:31.888
Members of Tren de Aragua,

1120
00:34:31.889 --> 00:34:34.329
let alone have we had any sort of

1121
00:34:34.330 --> 00:34:36.169
formal decision on the question

1122
00:34:36.170 --> 00:34:38.049
of whether Tren De Aragua can

1123
00:34:38.050 --> 00:34:40.509
be, members can be designated

1124
00:34:40.510 --> 00:34:42.609
alien enemies under the

1125
00:34:42.610 --> 00:34:44.089
Alien Enemies Act.

1126
00:34:44.090 --> 00:34:45.928
It's worth noting that the Alien

1127
00:34:45.929 --> 00:34:47.309
enemies act has only been invoked

1128
00:34:47.310 --> 00:34:49.009
three times in the history of the

1129
00:34:49.010 --> 00:34:50.888
country, the most recent one being

1130
00:34:50.889 --> 00:34:52.709
during World War II when it

1131
00:34:52.710 --> 00:34:55.109
was invoked as against Japanese,

1132
00:34:55.110 --> 00:34:57.029
German, and Italians who

1133
00:34:57.030 --> 00:34:58.349
were residing in the United States.

1134
00:34:58.350 --> 00:35:00.389
And during that time.

1135
00:35:00.390 --> 00:35:02.229
You might remember, the United

1136
00:35:02.230 --> 00:35:04.669
States was at war, a declared war,

1137
00:35:04.670 --> 00:35:06.449
an awful and longstanding war with

1138
00:35:06.450 --> 00:35:08.509
Japan, Germany, and Italy.

1139
00:35:08.510 --> 00:35:09.709
So the facts look very different

1140
00:35:09.710 --> 00:35:11.569
from this invocation of the Enemy

1141
00:35:11.570 --> 00:35:12.769
Aliens Act.

1142
00:35:12.770 --> 00:35:14.649
And so again, the Supreme Court has

1143
00:35:14.650 --> 00:35:18.049
intervened at the

1144
00:35:18.050 --> 00:35:19.489
procedural stage, but we haven't

1145
00:35:19.490 --> 00:35:22.169
really gotten to the meat of

1146
00:35:22.170 --> 00:35:24.349
the kinds of claims that

1147
00:35:24.350 --> 00:35:25.729
we might expect to see.

1148
00:35:25.730 --> 00:35:28.479
And many.

1149
00:35:28.480 --> 00:35:30.139
The individuals who have been

1150
00:35:30.140 --> 00:35:32.739
removed are still gone

1151
00:35:32.740 --> 00:35:34.379
and awaiting proceedings.

1152
00:35:34.380 --> 00:35:35.519
There have been a number of people,

1153
00:35:35.520 --> 00:35:38.059
I should say, who have sort

1154
00:35:38.060 --> 00:35:39.199
of been in the process of being

1155
00:35:39.200 --> 00:35:41.379
removed. And various district courts

1156
00:35:41.380 --> 00:35:43.519
have issued orders

1157
00:35:43.520 --> 00:35:45.459
that have prevented those

1158
00:35:45.460 --> 00:35:46.819
individuals from being removed from

1159
00:35:46.820 --> 00:35:48.239
the country.

1160
00:35:48.240 --> 00:35:50.199
But lots of litigation still remains

1161
00:35:50.200 --> 00:35:52.819
to unfold.

1162
00:35:52.820 --> 00:35:54.599
And the final thing that I'll note

1163
00:35:54.600 --> 00:35:56.789
is the DVD case.

1164
00:35:56.790 --> 00:35:58.789
Um, which is, which involves, uh,

1165
00:35:58.790 --> 00:36:00.129
the removal of individuals to third

1166
00:36:00.130 --> 00:36:01.029
countries.

1167
00:36:01.030 --> 00:36:02.329
So when you take some, kind of like

1168
00:36:02.330 --> 00:36:03.849
what happened to Abrego Garcia, or

1169
00:36:03.850 --> 00:36:05.329
sorry, not to Aprego Garcia but to

1170
00:36:05.330 --> 00:36:06.549
all of the other individuals who are

1171
00:36:06.550 --> 00:36:08.589
designated as alien enemies

1172
00:36:08.590 --> 00:36:09.829
who have been removed, who are

1173
00:36:09.830 --> 00:36:10.809
Venezuelan but who have being

1174
00:36:10.810 --> 00:36:12.169
removed to El Salvador.

1175
00:36:12.170 --> 00:36:13.649
Um, but in this case, um, it

1176
00:36:13.650 --> 00:36:15.809
involved individuals who were, uh,

1177
00:36:15.810 --> 00:36:18.149
not, uh being removed under the, any

1178
00:36:18.150 --> 00:36:19.989
alien enemies order, um but

1179
00:36:19.990 --> 00:36:21.349
who had criminal convictions that

1180
00:36:21.350 --> 00:36:22.629
rendered them removable and they can

1181
00:36:22.630 --> 00:36:24.169
be removed rather quickly under an

1182
00:36:24.170 --> 00:36:26.009
expedited. Removal process that the

1183
00:36:26.010 --> 00:36:27.649
statute provides for.

1184
00:36:27.650 --> 00:36:28.929
The problem is that the

1185
00:36:28.930 --> 00:36:30.449
administration decided to send these

1186
00:36:30.450 --> 00:36:32.429
individuals to South Sudan, and

1187
00:36:32.430 --> 00:36:33.689
none of these individuals are from

1188
00:36:33.690 --> 00:36:34.809
South Sudan.

1189
00:36:34.810 --> 00:36:36.989
And so they said, wait a minute.

1190
00:36:36.990 --> 00:36:38.689
We don't really think you can do

1191
00:36:38.690 --> 00:36:39.889
this without a process.

1192
00:36:39.890 --> 00:36:41.589
There are processes in the statute

1193
00:36:41.590 --> 00:36:43.769
for removing individuals to

1194
00:36:43.770 --> 00:36:45.789
third countries, but none

1195
00:36:45.790 --> 00:36:46.929
of those processes appear to have

1196
00:36:46.930 --> 00:36:48.829
been followed in this case.

1197
00:36:48.830 --> 00:36:50.189
And so, they said this is wrong.

1198
00:36:50.190 --> 00:36:52.029
You can't just willy nilly remove us

1199
00:36:52.030 --> 00:36:53.309
to a country that's not our own.

1200
00:36:54.360 --> 00:36:57.059
And for which we've had no process.

1201
00:36:57.060 --> 00:36:59.079
And this is another case where

1202
00:36:59.080 --> 00:37:01.079
the

1203
00:37:01.080 --> 00:37:03.499
district court issued an order that

1204
00:37:03.500 --> 00:37:05.040
said, don't remove these gentlemen

1205
00:37:06.520 --> 00:37:08.219
to South Sudan.

1206
00:37:08.220 --> 00:37:10.460
And the planes left.

1207
00:37:13.040 --> 00:37:14.979
And the court ultimately

1208
00:37:14.980 --> 00:37:16.939
came back and said, now that the

1209
00:37:16.940 --> 00:37:18.699
individuals are sitting in Djibouti,

1210
00:37:18.700 --> 00:37:20.319
about to be sent across the border

1211
00:37:20.320 --> 00:37:22.099
to South Sudan, you really need to

1212
00:37:22.100 --> 00:37:22.909
give them.

1213
00:37:22.910 --> 00:37:24.189
Procedure. So it kind of happened in

1214
00:37:24.190 --> 00:37:26.109
two stages. One was the don't

1215
00:37:26.110 --> 00:37:27.089
send them.

1216
00:37:27.090 --> 00:37:28.549
That order happened in April.

1217
00:37:28.550 --> 00:37:29.869
And then in May, there was the,

1218
00:37:29.870 --> 00:37:30.969
well, now that they're there, give

1219
00:37:30.970 --> 00:37:32.369
them some process.

1220
00:37:32.370 --> 00:37:33.869
And the Supreme Court intervened at

1221
00:37:33.870 --> 00:37:34.829
two points here.

1222
00:37:34.830 --> 00:37:36.649
The first was sort of responding to

1223
00:37:36.650 --> 00:37:38.209
the

1224
00:37:39.630 --> 00:37:41.889
don't-send-them order.

1225
00:37:41.890 --> 00:37:44.509
And they said, wait

1226
00:37:44.510 --> 00:37:46.229
a minute, you can't issue that

1227
00:37:46.230 --> 00:37:48.309
order. So they that don't send them

1228
00:37:48.310 --> 00:37:50.289
order and then the

1229
00:37:50.290 --> 00:37:52.269
case sort of percolated back up uh,

1230
00:37:52.270 --> 00:37:54.069
because, uh, the judge was insisting

1231
00:37:54.070 --> 00:37:55.549
that his May order, which says,

1232
00:37:55.550 --> 00:37:56.929
well, now that they're there, they

1233
00:37:56.930 --> 00:37:57.729
get processed.

1234
00:37:57.730 --> 00:37:58.749
He was, he said, that's not really

1235
00:37:58.750 --> 00:38:00.189
subject to the Supreme Court's

1236
00:38:00.190 --> 00:38:01.429
action on the first order.

1237
00:38:01.430 --> 00:38:03.169
And the Supreme court came back in a

1238
00:38:03.170 --> 00:38:04.989
7-2 decision, which Kagan, in which

1239
00:38:04.990 --> 00:38:06.369
Kegan joined the conservatives, this

1240
00:38:06.370 --> 00:38:07.509
is the only one that has this

1241
00:38:07.510 --> 00:38:09.429
configuration, um, where they

1242
00:38:09.430 --> 00:38:11.269
said, well if that, uh- if

1243
00:38:11.270 --> 00:38:12.609
the, if the first orders no longer

1244
00:38:12.610 --> 00:38:14.209
in effect, then this second order

1245
00:38:14.210 --> 00:38:16.069
can't be in effect either.

1246
00:38:16.070 --> 00:38:17.629
Um, and so ultimately these

1247
00:38:17.630 --> 00:38:19.649
gentlemen are, in

1248
00:38:19.650 --> 00:38:21.489
Djibouti without.

1249
00:38:21.490 --> 00:38:23.309
Process, and that's

1250
00:38:23.310 --> 00:38:25.149
sort of where the

1251
00:38:25.150 --> 00:38:26.309
Supreme Court's intervention has

1252
00:38:26.310 --> 00:38:27.829
ended. There have been a couple of

1253
00:38:27.830 --> 00:38:29.249
other immigration issues that have

1254
00:38:29.250 --> 00:38:30.209
gotten before the Supreme court.

1255
00:38:30.210 --> 00:38:32.249
They involve the

1256
00:38:32.250 --> 00:38:34.289
rescission of TPS for large numbers

1257
00:38:34.290 --> 00:38:36.249
of Venezuelans and the rescision of

1258
00:38:36.250 --> 00:38:37.869
humanitarian parole for large number

1259
00:38:37.870 --> 00:38:39.730
of people from Cuba, Nicaragua,

1260
00:38:40.810 --> 00:38:42.569
Honduras, Venezuela, and also people

1261
00:38:42.570 --> 00:38:45.409
from Ukraine and Afghanistan,

1262
00:38:45.410 --> 00:38:46.629
hundreds of thousands of people

1263
00:38:46.630 --> 00:38:48.489
affected by these rescissions of

1264
00:38:48.490 --> 00:38:49.529
protections that were previously

1265
00:38:49.530 --> 00:38:50.429
extended by the Biden

1266
00:38:50.430 --> 00:38:51.579
administration.

1267
00:38:51.580 --> 00:38:53.219
Litigants took the position that

1268
00:38:53.220 --> 00:38:54.879
until a decision was made on the

1269
00:38:54.880 --> 00:38:55.919
merits about whether these

1270
00:38:55.920 --> 00:38:57.059
rescissions were appropriate, they

1271
00:38:57.060 --> 00:38:58.579
should be allowed to retain their

1272
00:38:58.580 --> 00:39:00.279
status. That is, that the orders

1273
00:39:00.280 --> 00:39:01.519
rescinding should not go into

1274
00:39:01.520 --> 00:39:02.379
effect.

1275
00:39:02.380 --> 00:39:04.259
The Supreme Court has intervened to

1276
00:39:04.260 --> 00:39:06.299
allow those rescissions

1277
00:39:06.300 --> 00:39:07.739
to go into affect.

1278
00:39:07.740 --> 00:39:09.819
And so people have lost their

1279
00:39:09.820 --> 00:39:11.839
status as the issue of

1280
00:39:11.840 --> 00:39:14.039
whether those changes

1281
00:39:14.040 --> 00:39:15.899
in their status were legal

1282
00:39:15.900 --> 00:39:17.260
remain ongoing.

1283
00:39:24.560 --> 00:39:25.940
Your whirlwind tour,

1284
00:39:28.300 --> 00:39:30.559
abbreviated tour, shows

1285
00:39:30.560 --> 00:39:32.419
the difficulty of trying to

1286
00:39:32.420 --> 00:39:34.719
use courts in real time to

1287
00:39:34.720 --> 00:39:36.679
police some of these things.

1288
00:39:36.680 --> 00:39:38.439
Which brings us to Justin.

1289
00:39:38.440 --> 00:39:40.019
When I initially invited Justin to

1290
00:39:40.020 --> 00:39:41.059
this panel, I thought he was going

1291
00:39:41.060 --> 00:39:42.679
to be talking about a major voting

1292
00:39:42.680 --> 00:39:44.699
case that the Supreme Court

1293
00:39:44.700 --> 00:39:46.279
at the surprisingly at the end of

1294
00:39:46.280 --> 00:39:47.659
the term decided it wasn't going to

1295
00:39:47.660 --> 00:39:48.479
decide this year.

1296
00:39:48.480 --> 00:39:49.499
Oops.

1297
00:39:49.500 --> 00:39:51.539
It's going to kick it to next year.

1298
00:39:51.540 --> 00:39:52.879
For reasons they haven't told us

1299
00:39:52.880 --> 00:39:54.619
yet, but promise they will.

1300
00:39:55.680 --> 00:39:56.680
But instead,

1301
00:39:57.560 --> 00:39:59.399
we're going to talk about another

1302
00:39:59.400 --> 00:40:01.399
case that came up in

1303
00:40:01.400 --> 00:40:02.879
an unusual process, but they got a

1304
00:40:02.880 --> 00:40:04.339
full hearing involving birthright

1305
00:40:04.340 --> 00:40:06.739
citizenship and related issues

1306
00:40:06.740 --> 00:40:08.189
related to executive power.

1307
00:40:08.190 --> 00:40:10.069
Yeah, and and this first

1308
00:40:10.070 --> 00:40:11.089
case I want to talk about could

1309
00:40:11.090 --> 00:40:12.549
really have been in Jennifer's

1310
00:40:12.550 --> 00:40:14.469
bucket And it's so many of us here

1311
00:40:14.470 --> 00:40:16.529
are dealing with very similar

1312
00:40:16.530 --> 00:40:18.289
trends at the court and very similar

1313
00:40:18.290 --> 00:40:19.689
processes in very different

1314
00:40:19.690 --> 00:40:21.529
Substantive areas, which is why

1315
00:40:21.530 --> 00:40:22.809
there'll be a whole section on this

1316
00:40:22.810 --> 00:40:25.129
second term My

1317
00:40:25.130 --> 00:40:27.069
cases bridge this gap a little bit

1318
00:40:27.070 --> 00:40:29.089
one. They both came up in emergency

1319
00:40:29.090 --> 00:40:31.189
postures one was resolved

1320
00:40:31.190 --> 00:40:33.029
after Sort of kind of

1321
00:40:33.030 --> 00:40:35.009
full briefing ish and

1322
00:40:35.010 --> 00:40:36.839
the other one wasn't The first

1323
00:40:36.840 --> 00:40:38.099
one I'll talk about is the

1324
00:40:38.100 --> 00:40:39.539
birthright citizenship case, which

1325
00:40:39.540 --> 00:40:41.159
involved a decision that did not in

1326
00:40:41.160 --> 00:40:42.239
any way address birthrights

1327
00:40:42.240 --> 00:40:43.719
citizenship.

1328
00:40:43.720 --> 00:40:45.619
On January 20, along with

1329
00:40:45.620 --> 00:40:47.079
several executive orders that have

1330
00:40:47.080 --> 00:40:48.959
affected many of the cases you've

1331
00:40:48.960 --> 00:40:50.999
heard about so far, President

1332
00:40:51.000 --> 00:40:52.699
Trump issued an executive order

1333
00:40:52.700 --> 00:40:54.859
purporting to rescind birthright

1334
00:40:54.860 --> 00:40:57.219
citizenship for individuals

1335
00:40:57.220 --> 00:40:58.599
who are born to people who are not

1336
00:40:58.600 --> 00:40:59.639
citizens or legal permanent

1337
00:40:59.640 --> 00:41:01.359
residents but were born in the

1338
00:41:01.360 --> 00:41:02.159
United States.

1339
00:41:02.160 --> 00:41:04.729
The Constitution says...

1340
00:41:04.730 --> 00:41:05.849
And I think this is fairly

1341
00:41:05.850 --> 00:41:06.749
uncontroversial.

1342
00:41:06.750 --> 00:41:07.750
Can't do that.

1343
00:41:10.420 --> 00:41:12.599
They're everybody sued and

1344
00:41:12.600 --> 00:41:14.559
all of the courts started issuing

1345
00:41:14.560 --> 00:41:16.099
orders or started issuing various

1346
00:41:16.100 --> 00:41:18.099
forms of process sort of confronting

1347
00:41:18.100 --> 00:41:20.079
this The case as

1348
00:41:20.080 --> 00:41:21.979
it came to the Supreme Court didn't

1349
00:41:21.980 --> 00:41:23.419
involve the merits of that decision

1350
00:41:23.420 --> 00:41:25.279
at all And that actually is

1351
00:41:25.280 --> 00:41:26.659
one of the problems that I hope will

1352
00:41:26.660 --> 00:41:28.979
get into instead the

1353
00:41:28.980 --> 00:41:30.480
court tackled a very

1354
00:41:31.580 --> 00:41:33.399
Procedural issue that nevertheless

1355
00:41:33.400 --> 00:41:35.499
has huge ramifications and

1356
00:41:35.500 --> 00:41:37.439
that is the propriety of getting

1357
00:41:37.440 --> 00:41:39.299
relief that extends

1358
00:41:39.300 --> 00:41:40.439
to somebody other than the person

1359
00:41:40.440 --> 00:41:41.440
who brought the case.

1360
00:41:42.600 --> 00:41:44.419
So normally, you may

1361
00:41:44.420 --> 00:41:46.219
think that when you sue somebody,

1362
00:41:46.220 --> 00:41:48.099
that the job, if you win the

1363
00:41:48.100 --> 00:41:49.199
case, the job of the court is to

1364
00:41:49.200 --> 00:41:50.379
make you whole.

1365
00:41:50.380 --> 00:41:52.239
If Cary sues me and she

1366
00:41:52.240 --> 00:41:54.039
wins, then the job with the court is

1367
00:41:54.040 --> 00:41:55.699
to makes sure that Cary is made as

1368
00:41:55.700 --> 00:41:56.619
whole as possible.

1369
00:41:56.620 --> 00:41:58.299
And it doesn't matter if there's

1370
00:41:58.300 --> 00:42:00.019
additional relief that Rick happens

1371
00:42:00.020 --> 00:42:01.279
to benefit from or that Jennifer

1372
00:42:01.280 --> 00:42:02.479
happens to be benefit from or Eugene

1373
00:42:02.480 --> 00:42:03.739
happens to the benefit from.

1374
00:42:03.740 --> 00:42:05.919
This is the dispute between us.

1375
00:42:05.920 --> 00:42:07.459
And that's true even when the

1376
00:42:07.460 --> 00:42:08.460
government's involved.

1377
00:42:09.320 --> 00:42:11.199
And that's effectively what the

1378
00:42:11.200 --> 00:42:12.739
Supreme Court said.

1379
00:42:12.740 --> 00:42:14.439
And so there's a part of what the

1380
00:42:14.440 --> 00:42:15.859
supreme court said, as Cary said

1381
00:42:15.860 --> 00:42:18.099
before, sort of as a lawyer,

1382
00:42:18.100 --> 00:42:19.419
where this makes all the sense in

1383
00:42:19.420 --> 00:42:20.859
the world that if you want to bring

1384
00:42:20.860 --> 00:42:22.679
a case that has ramifications beyond

1385
00:42:22.680 --> 00:42:24.559
just you, you can do it as a class

1386
00:42:24.560 --> 00:42:25.819
action lawsuit.

1387
00:42:25.820 --> 00:42:27.499
There are certain avenues that by

1388
00:42:27.500 --> 00:42:29.019
statute allow you to vacate a

1389
00:42:29.020 --> 00:42:30.579
decision for everybody, but the

1390
00:42:30.580 --> 00:42:32.679
normal sort of regular course is you

1391
00:42:32.680 --> 00:42:35.259
bring a a case and if you win,

1392
00:42:35.260 --> 00:42:37.139
the person that you're suing has

1393
00:42:37.140 --> 00:42:38.659
to respond to make you whole, but

1394
00:42:38.660 --> 00:42:39.819
doesn't have to stop what they're

1395
00:42:39.820 --> 00:42:40.920
doing for everybody else.

1396
00:42:41.960 --> 00:42:43.859
That's what the court decided.

1397
00:42:43.860 --> 00:42:45.959
It is still a really

1398
00:42:45.960 --> 00:42:47.959
big deal that

1399
00:42:47.960 --> 00:42:50.379
they decided this, how they decided.

1400
00:42:50.380 --> 00:42:52.379
The methodology included

1401
00:42:52.380 --> 00:42:54.139
some founding era history that is

1402
00:42:54.140 --> 00:42:56.279
becoming increasingly prevalent,

1403
00:42:56.280 --> 00:42:58.259
but no more concrete than

1404
00:42:58.260 --> 00:43:00.059
it has been in other areas where

1405
00:43:00.060 --> 00:43:01.479
people have been very critical of

1406
00:43:01.480 --> 00:43:03.659
the history of the court.

1407
00:43:03.660 --> 00:43:05.379
So we've seen this in the Second

1408
00:43:05.380 --> 00:43:06.839
Amendment in years past, we've seen

1409
00:43:06.840 --> 00:43:08.679
this in the context of Dobbs and

1410
00:43:08.680 --> 00:43:09.959
reproductive freedom in years past.

1411
00:43:09.960 --> 00:43:11.719
This is another case that turned on

1412
00:43:11.720 --> 00:43:13.679
founding area history and a lot of

1413
00:43:13.680 --> 00:43:15.859
controversy over the

1414
00:43:15.860 --> 00:43:17.819
determinism and also the

1415
00:43:17.820 --> 00:43:19.060
accuracy of that history.

1416
00:43:20.520 --> 00:43:22.679
The decision came without any

1417
00:43:22.680 --> 00:43:24.439
mention of the merits, and there was

1418
00:43:24.440 --> 00:43:25.579
a lot of critique on that.

1419
00:43:25.580 --> 00:43:27.139
Some constitutional issues are

1420
00:43:27.140 --> 00:43:28.479
legitimately hard.

1421
00:43:28.480 --> 00:43:30.139
Many constitutional issues are

1422
00:43:30.140 --> 00:43:31.819
legitimately hard. I don't think

1423
00:43:31.820 --> 00:43:33.289
this is one of them.

1424
00:43:33.290 --> 00:43:36.489
And for the court to not,

1425
00:43:36.490 --> 00:43:38.309
as at least a glancing blow,

1426
00:43:38.310 --> 00:43:40.309
mention that the Constitution and

1427
00:43:40.310 --> 00:43:42.309
history and precedent and,

1428
00:43:42.310 --> 00:43:44.029
and, all of the methodologies that

1429
00:43:44.030 --> 00:43:45.209
you may care for all point in

1430
00:43:45.210 --> 00:43:46.449
exactly the same direction here,

1431
00:43:46.450 --> 00:43:48.249
which is, you can't do that.

1432
00:43:48.250 --> 00:43:49.769
For the court issue this opinion

1433
00:43:49.770 --> 00:43:51.109
without mentioning the merits at all

1434
00:43:51.110 --> 00:43:52.629
was highly controversial,

1435
00:43:53.890 --> 00:43:55.769
and the timing in

1436
00:43:55.770 --> 00:43:57.889
particular was especially

1437
00:43:57.890 --> 00:43:59.069
controversial.

1438
00:43:59.070 --> 00:44:00.649
Not only.

1439
00:44:00.650 --> 00:44:02.389
The notion that there have been an

1440
00:44:02.390 --> 00:44:04.409
increase in these sort of national

1441
00:44:04.410 --> 00:44:06.369
injunctions, not just you stop for

1442
00:44:06.370 --> 00:44:08.289
me, but you stop for everybody,

1443
00:44:08.290 --> 00:44:10.189
for several presidential terms now.

1444
00:44:10.190 --> 00:44:12.449
And the court has waited until

1445
00:44:12.450 --> 00:44:14.329
now to resolve this issue.

1446
00:44:14.330 --> 00:44:15.689
But they've waited for an

1447
00:44:15.690 --> 00:44:17.549
administration with, as I think

1448
00:44:17.550 --> 00:44:19.569
Jennifer extremely politely

1449
00:44:19.570 --> 00:44:21.489
put it, a curious approach to

1450
00:44:21.490 --> 00:44:23.429
the rule of law flat out.

1451
00:44:24.570 --> 00:44:26.429
This, in

1452
00:44:26.430 --> 00:44:28.009
what I'll say, an administration

1453
00:44:28.010 --> 00:44:29.929
with more regard for the rule of

1454
00:44:29.930 --> 00:44:31.879
law. You would expect that when

1455
00:44:31.880 --> 00:44:33.859
the courts reach consensus on an

1456
00:44:33.860 --> 00:44:35.699
issue, that the government

1457
00:44:35.700 --> 00:44:37.139
would say, okay, we see the courts

1458
00:44:37.140 --> 00:44:38.519
have decided this, we're not gonna

1459
00:44:38.520 --> 00:44:40.119
do the thing anymore because we

1460
00:44:40.120 --> 00:44:41.499
recognize that's unlawful.

1461
00:44:42.620 --> 00:44:45.759
This administration seems uninclined

1462
00:44:45.760 --> 00:44:48.039
to listen to what courts generally

1463
00:44:48.040 --> 00:44:49.519
are saying without a direct court

1464
00:44:49.520 --> 00:44:50.999
order. And as Jennifer just

1465
00:44:51.000 --> 00:44:52.799
mentioned, seems un-incline to

1466
00:44:52.800 --> 00:44:53.719
listen what courts are saying

1467
00:44:53.720 --> 00:44:55.799
sometimes even when there is a very

1468
00:44:55.800 --> 00:44:57.119
direct court ordered.

1469
00:44:57.120 --> 00:44:59.259
So for the Supreme Court to

1470
00:44:59.260 --> 00:45:01.399
put up sort of

1471
00:45:01.400 --> 00:45:04.039
procedurally straightforward,

1472
00:45:04.040 --> 00:45:06.779
but nevertheless leaving

1473
00:45:06.780 --> 00:45:08.859
room for permission for this

1474
00:45:08.860 --> 00:45:11.379
administration in particular to

1475
00:45:11.380 --> 00:45:13.139
play some games with exactly who has

1476
00:45:13.140 --> 00:45:16.019
told them what, when, and where,

1477
00:45:16.020 --> 00:45:18.399
seemed not

1478
00:45:18.400 --> 00:45:20.219
apt for the times in which we

1479
00:45:20.220 --> 00:45:21.919
live or the demonstrated record that

1480
00:45:21.920 --> 00:45:23.639
this government in particular has

1481
00:45:23.640 --> 00:45:25.559
brought to litigation in

1482
00:45:25.560 --> 00:45:26.779
which they've involved.

1483
00:45:26.780 --> 00:45:28.839
That said, there's actually a

1484
00:45:28.840 --> 00:45:29.859
tiny bit of upside.

1485
00:45:29.860 --> 00:45:31.259
This opinion, I think, will have

1486
00:45:31.260 --> 00:45:33.179
massive consequences for other

1487
00:45:33.180 --> 00:45:35.119
cases, for lots of other

1488
00:45:35.120 --> 00:45:36.139
cases.

1489
00:45:36.140 --> 00:45:38.159
I don't think the opinion

1490
00:45:38.160 --> 00:45:39.839
will actually have much of an impact

1491
00:45:39.840 --> 00:45:41.819
at all on the

1492
00:45:41.820 --> 00:45:43.699
birthright citizenship case

1493
00:45:43.700 --> 00:45:45.199
for several reasons.

1494
00:45:45.200 --> 00:45:46.599
One, the rules are a little bit

1495
00:45:46.600 --> 00:45:47.779
weird about what it takes for a

1496
00:45:47.780 --> 00:45:49.299
plaintiff to get relief when states

1497
00:45:49.300 --> 00:45:50.539
are involved, and there are many

1498
00:45:50.540 --> 00:45:51.839
states involved.

1499
00:45:51.840 --> 00:45:53.569
The rules are little bit weir- when

1500
00:45:53.570 --> 00:45:54.749
states get involved in immigration

1501
00:45:54.750 --> 00:45:56.429
cases, where people move around, and

1502
00:45:56.430 --> 00:45:58.249
what it means for a state to be

1503
00:45:58.250 --> 00:45:59.569
involved in these sorts of cases may

1504
00:45:59.570 --> 00:46:01.409
well mean national relief,

1505
00:46:01.410 --> 00:46:03.249
even if just one plaintiff or just

1506
00:46:03.250 --> 00:46:04.690
one state is at issue.

1507
00:46:05.850 --> 00:46:07.909
There are procedures for aggregating

1508
00:46:07.910 --> 00:46:09.889
claims, class actions, and

1509
00:46:09.890 --> 00:46:11.449
in this case, the class action's

1510
00:46:11.450 --> 00:46:12.249
really simple.

1511
00:46:12.250 --> 00:46:14.289
I was born here, and

1512
00:46:14.290 --> 00:46:16.109
everybody who was born here is

1513
00:46:16.110 --> 00:46:17.909
similarly situated to me, and so we

1514
00:46:17.910 --> 00:46:19.509
can all bring the claims in one

1515
00:46:19.510 --> 00:46:20.510
shot.

1516
00:46:21.810 --> 00:46:23.049
There's a provision in federal

1517
00:46:23.050 --> 00:46:24.769
statute for challenging government

1518
00:46:24.770 --> 00:46:27.029
agency action that absolutely

1519
00:46:27.030 --> 00:46:28.849
none of this case affects at

1520
00:46:28.850 --> 00:46:30.709
all. And all of those seem very

1521
00:46:30.710 --> 00:46:32.309
relevant in addressing birth rate

1522
00:46:32.310 --> 00:46:33.489
citizenship.

1523
00:46:33.490 --> 00:46:34.929
I don't think this is gonna play a

1524
00:46:34.930 --> 00:46:35.829
role.

1525
00:46:35.830 --> 00:46:36.989
That one statute for addressing

1526
00:46:36.990 --> 00:46:39.269
agency action has been used 60

1527
00:46:39.270 --> 00:46:41.569
plus times since this administration

1528
00:46:41.570 --> 00:46:43.989
took office to stop federal action.

1529
00:46:43.990 --> 00:46:45.889
That is an extraordinary tally

1530
00:46:45.890 --> 00:46:47.909
in July 15 of a

1531
00:46:47.910 --> 00:46:49.110
first term of a presidential year.

1532
00:46:50.190 --> 00:46:51.489
So, there's still quite a bit of

1533
00:46:51.490 --> 00:46:53.489
potency in stopping federal action

1534
00:46:53.490 --> 00:46:55.189
that I think this particular case

1535
00:46:55.190 --> 00:46:57.009
won't regulate one way or

1536
00:46:57.010 --> 00:46:58.569
another, but the methodology is a

1537
00:46:58.570 --> 00:46:59.969
big deal and its impact on other

1538
00:46:59.970 --> 00:47:01.829
cases is a very big deal.

1539
00:47:01.830 --> 00:47:03.409
Very briefly, I just want to touch

1540
00:47:03.410 --> 00:47:05.949
on the administrative state and

1541
00:47:05.950 --> 00:47:07.889
some of the action involving one of

1542
00:47:07.890 --> 00:47:09.409
the other cases involving

1543
00:47:09.410 --> 00:47:11.469
presidential unitary executive

1544
00:47:11.470 --> 00:47:12.469
theory.

1545
00:47:12.470 --> 00:47:13.729
A lot of what we've been talking

1546
00:47:13.730 --> 00:47:15.589
about has to do with

1547
00:47:15.590 --> 00:47:17.469
the force of the president's

1548
00:47:17.470 --> 00:47:19.379
party. And how much Congress or

1549
00:47:19.380 --> 00:47:21.699
other bodies can restrain that.

1550
00:47:21.700 --> 00:47:23.019
We all know the Constitution

1551
00:47:23.020 --> 00:47:25.019
authorizes legislative activity,

1552
00:47:25.020 --> 00:47:26.219
authorizes executive activity,

1553
00:47:26.220 --> 00:47:27.699
authorizes judicial activity.

1554
00:47:27.700 --> 00:47:28.899
Doesn't have a lot to say about

1555
00:47:28.900 --> 00:47:30.759
administrative agencies, which

1556
00:47:30.760 --> 00:47:32.239
sit sort of in the middle of all

1557
00:47:32.240 --> 00:47:34.179
three. They exercise a little bit of

1558
00:47:34.180 --> 00:47:35.659
all of these powers.

1559
00:47:35.660 --> 00:47:37.539
The Constitution acknowledges that

1560
00:47:37.540 --> 00:47:39.039
agencies will exist.

1561
00:47:39.040 --> 00:47:40.879
It doesn't say a lot about them.

1562
00:47:40.880 --> 00:47:42.279
It says a tiny little bit about

1563
00:47:42.280 --> 00:47:44.099
hiring people who run these

1564
00:47:44.100 --> 00:47:45.479
agencies, but even that is

1565
00:47:45.480 --> 00:47:46.809
maddeningly imprecise.

1566
00:47:46.810 --> 00:47:48.209
It doesn't say anything about firing

1567
00:47:48.210 --> 00:47:49.789
them. And so all of the law in this

1568
00:47:49.790 --> 00:47:51.649
area is really court-made

1569
00:47:51.650 --> 00:47:53.489
and invented out of principles

1570
00:47:53.490 --> 00:47:54.609
that have to do with the separation

1571
00:47:54.610 --> 00:47:55.829
of powers.

1572
00:47:55.830 --> 00:47:57.209
Those principles are pushing back

1573
00:47:57.210 --> 00:47:58.969
against what Congress has said these

1574
00:47:58.970 --> 00:48:00.729
agencies are supposed to do.

1575
00:48:00.730 --> 00:48:02.229
Congress has set up all of these

1576
00:48:02.230 --> 00:48:03.309
agencies.

1577
00:48:03.310 --> 00:48:04.809
Some of them they've made directly

1578
00:48:04.810 --> 00:48:06.709
responsible to the president,

1579
00:48:06.710 --> 00:48:07.929
things like Department of State,

1580
00:48:07.930 --> 00:48:09.269
Department of Defense, Department of

1581
00:48:09.270 --> 00:48:10.789
Treasury, Department of Commerce,

1582
00:48:10.790 --> 00:48:13.109
very direct line to the President.

1583
00:48:13.110 --> 00:48:15.409
Others, Congress has made more

1584
00:48:15.410 --> 00:48:16.699
independent.

1585
00:48:16.700 --> 00:48:18.459
Including multiple members who lead

1586
00:48:18.460 --> 00:48:20.239
the agencies, including staggered

1587
00:48:20.240 --> 00:48:21.859
terms so that no one president

1588
00:48:21.860 --> 00:48:23.519
appoints all of the members of the

1589
00:48:23.520 --> 00:48:25.499
agency, including provisions that

1590
00:48:25.500 --> 00:48:26.879
say you can't get rid of somebody

1591
00:48:26.880 --> 00:48:28.279
unless you have cause.

1592
00:48:28.280 --> 00:48:29.540
You can't just fire them because.

1593
00:48:30.900 --> 00:48:32.039
So there's some pushback.

1594
00:48:32.040 --> 00:48:33.719
Congress has set up these agencies

1595
00:48:33.720 --> 00:48:34.959
with independence.

1596
00:48:34.960 --> 00:48:36.699
The court is trying to figure out

1597
00:48:36.700 --> 00:48:37.759
where in the constitutional

1598
00:48:37.760 --> 00:48:39.759
structure this congressional

1599
00:48:39.760 --> 00:48:41.719
authority lies and how much it can

1600
00:48:41.720 --> 00:48:43.889
take from the president or not.

1601
00:48:43.890 --> 00:48:45.289
This has to do with the push and

1602
00:48:45.290 --> 00:48:46.629
pull of what's sometimes called

1603
00:48:46.630 --> 00:48:48.569
unitary executive theory,

1604
00:48:48.570 --> 00:48:50.209
exactly how much can Congress

1605
00:48:50.210 --> 00:48:52.109
interfere with, or

1606
00:48:52.110 --> 00:48:54.429
if you're a congressional scholar,

1607
00:48:54.430 --> 00:48:56.369
set up the rules for these agencies

1608
00:48:56.370 --> 00:48:57.370
that they empower.

1609
00:48:59.670 --> 00:49:01.229
On the scale of unitary

1610
00:49:01.230 --> 00:49:03.209
executiveness, I think it's

1611
00:49:03.210 --> 00:49:05.129
fair to say that President Trump is

1612
00:49:05.130 --> 00:49:06.809
way toward the end of what it means

1613
00:49:06.810 --> 00:49:08.069
to be a unitary executive.

1614
00:49:08.070 --> 00:49:09.569
Somebody who says, I alone can fix

1615
00:49:09.570 --> 00:49:11.529
it as a campaign slogan, doesn't

1616
00:49:11.530 --> 00:49:12.729
like to think of many plural

1617
00:49:12.730 --> 00:49:14.250
executives running around.

1618
00:49:15.690 --> 00:49:17.229
So Donald Trump took office.

1619
00:49:17.230 --> 00:49:19.869
He fired essentially everybody.

1620
00:49:19.870 --> 00:49:21.369
It's his catchphrase, and he used

1621
00:49:21.370 --> 00:49:23.359
it. There are at least 11

1622
00:49:23.360 --> 00:49:25.319
different independent agencies where

1623
00:49:25.320 --> 00:49:27.119
the heads were fired and sued,

1624
00:49:27.120 --> 00:49:28.259
saying you can't do that.

1625
00:49:28.260 --> 00:49:29.939
Congress said I cannot be fired

1626
00:49:29.940 --> 00:49:31.359
except for cause.

1627
00:49:31.360 --> 00:49:32.959
And two of those made their way to

1628
00:49:32.960 --> 00:49:34.999
the court really important

1629
00:49:35.000 --> 00:49:36.059
because they have to do with

1630
00:49:36.060 --> 00:49:36.899
personnel agencies.

1631
00:49:36.900 --> 00:49:38.099
The heads of the National Labor

1632
00:49:38.100 --> 00:49:39.999
Relations Board and the head of

1633
00:49:40.000 --> 00:49:41.899
the Merit Selection Protection

1634
00:49:41.900 --> 00:49:43.799
Board, which is the agency

1635
00:49:43.800 --> 00:49:45.799
that says if federal officials

1636
00:49:45.800 --> 00:49:47.459
get fired improperly or get

1637
00:49:47.460 --> 00:49:49.179
disciplined improperly, that's where

1638
00:49:49.180 --> 00:49:50.139
you go for relief.

1639
00:49:50.140 --> 00:49:51.619
And Trump fired the head of that

1640
00:49:51.620 --> 00:49:52.620
office.

1641
00:49:53.370 --> 00:49:54.989
Those were entities that Congress

1642
00:49:54.990 --> 00:49:57.009
had designed to be independent

1643
00:49:57.010 --> 00:49:58.789
from presidential control,

1644
00:49:59.990 --> 00:50:01.049
where district courts had said,

1645
00:50:01.050 --> 00:50:02.109
you're right, give them their jobs

1646
00:50:02.110 --> 00:50:04.029
back, and where the court on the

1647
00:50:04.030 --> 00:50:05.109
emergency docket,

1648
00:50:06.170 --> 00:50:08.369
rocket, no briefing,

1649
00:50:08.370 --> 00:50:09.370
very little briefing,

1650
00:50:10.350 --> 00:50:11.829
three sentences in the majority

1651
00:50:11.830 --> 00:50:14.129
opinion explaining why,

1652
00:50:14.130 --> 00:50:15.269
said, You know what?

1653
00:50:15.270 --> 00:50:16.809
Let's put that on pause for a second

1654
00:50:17.830 --> 00:50:19.689
and have allowed these

1655
00:50:19.690 --> 00:50:21.599
firings to take

1656
00:50:21.600 --> 00:50:23.499
effect and allow these offices to

1657
00:50:23.500 --> 00:50:25.779
remain vacant without really

1658
00:50:25.780 --> 00:50:27.999
handing down a rule

1659
00:50:28.000 --> 00:50:30.239
except a shadow

1660
00:50:30.240 --> 00:50:32.358
of what is to come

1661
00:50:32.359 --> 00:50:34.219
and signaling in those three

1662
00:50:34.220 --> 00:50:36.159
sentences a pretty dramatic

1663
00:50:36.160 --> 00:50:37.699
reevaluation of the power that

1664
00:50:37.700 --> 00:50:40.019
Congress has to insulate certain

1665
00:50:40.020 --> 00:50:41.999
executive agencies from

1666
00:50:42.000 --> 00:50:43.000
presidential control.

1667
00:50:45.500 --> 00:50:46.999
In many of these cases, you've seen

1668
00:50:47.000 --> 00:50:48.899
Justice Sotomayor and Justice

1669
00:50:48.900 --> 00:50:49.999
Jackson dissenting.

1670
00:50:50.000 --> 00:50:51.939
This one sparked a raging dissent

1671
00:50:51.940 --> 00:50:53.159
from Justice Kagan, who's an

1672
00:50:53.160 --> 00:50:54.639
administrative law scholar.

1673
00:50:54.640 --> 00:50:56.779
And I have to say, I find her 16

1674
00:50:56.780 --> 00:50:58.779
pages of explanation more convincing

1675
00:50:58.780 --> 00:50:59.959
than the three sentences in the

1676
00:50:59.960 --> 00:51:01.059
majority.

1677
00:51:01.060 --> 00:51:02.979
But I think, I hope we're gonna

1678
00:51:02.980 --> 00:51:05.199
get into the whole fact of

1679
00:51:05.200 --> 00:51:06.899
that emergency doc at the second

1680
00:51:06.900 --> 00:51:08.859
term that Rick talked about, because

1681
00:51:08.860 --> 00:51:11.099
I think that's a feature in

1682
00:51:11.100 --> 00:51:12.359
every one of the areas that you've

1683
00:51:12.360 --> 00:51:13.360
talked about today.

1684
00:51:18.550 --> 00:51:19.869
All right, so now I want to open it

1685
00:51:19.870 --> 00:51:22.329
up a little bit to talk.

1686
00:51:22.330 --> 00:51:24.289
And I should say that we will leave

1687
00:51:24.290 --> 00:51:26.009
time at the end, the last 10 or 15

1688
00:51:26.010 --> 00:51:28.589
minutes, for audience questions.

1689
00:51:28.590 --> 00:51:30.069
I want turn to what I think is the

1690
00:51:30.070 --> 00:51:31.669
biggest question, which is the

1691
00:51:31.670 --> 00:51:33.569
relationship between the Trump

1692
00:51:33.570 --> 00:51:34.689
administration and the Supreme

1693
00:51:34.690 --> 00:51:36.409
Court. And I read two interesting

1694
00:51:36.410 --> 00:51:38.369
things today on this

1695
00:51:38.370 --> 00:51:40.289
topic. The first thing I read was an

1696
00:51:40.290 --> 00:51:41.889
interview by the New York Times

1697
00:51:41.890 --> 00:51:44.028
opinion editor, David Lennart,

1698
00:51:44.029 --> 00:51:45.329
with Michael McConnell.

1699
00:51:45.330 --> 00:51:47.329
Michael McConnell is out.

1700
00:51:47.330 --> 00:51:49.629
Professor and former 10th

1701
00:51:49.630 --> 00:51:51.849
Circuit judge,

1702
00:51:51.850 --> 00:51:52.850
a conservative judge.

1703
00:51:54.510 --> 00:51:56.889
And he said, the

1704
00:51:56.890 --> 00:51:58.009
courts have done a pretty good job

1705
00:51:58.010 --> 00:51:59.929
so far given their institutional

1706
00:51:59.930 --> 00:52:00.949
capacity.

1707
00:52:00.950 --> 00:52:02.769
And really, the founders

1708
00:52:02.770 --> 00:52:04.649
thought that it was

1709
00:52:04.650 --> 00:52:06.569
Congress that would be checking

1710
00:52:06.570 --> 00:52:08.669
the president, that separation

1711
00:52:08.670 --> 00:52:09.969
of powers that would really be

1712
00:52:09.970 --> 00:52:11.929
Congress. And he says, in both

1713
00:52:11.930 --> 00:52:13.229
Democratic and Republican

1714
00:52:13.230 --> 00:52:14.230
administrations.

1715
00:52:15.370 --> 00:52:17.189
You know, we have what professors

1716
00:52:17.190 --> 00:52:18.729
Pildes and Levenson call separation

1717
00:52:18.730 --> 00:52:20.469
of parties, not powers.

1718
00:52:20.470 --> 00:52:22.889
So if Republicans control the

1719
00:52:22.890 --> 00:52:24.389
Congress and the presidency, there's

1720
00:52:24.390 --> 00:52:26.009
no check. If Democrats control both

1721
00:52:26.010 --> 00:52:27.949
branches, there's a no check, and so

1722
00:52:27.950 --> 00:52:29.809
I take McConnell's position that

1723
00:52:29.810 --> 00:52:31.169
we're really expecting too much of

1724
00:52:31.170 --> 00:52:32.129
the courts.

1725
00:52:32.130 --> 00:52:33.169
So that was one thing I read today.

1726
00:52:33.170 --> 00:52:35.249
The other thing I wrote today was on

1727
00:52:35.250 --> 00:52:36.569
Sherrilyn Eiffel's substack.

1728
00:52:36.570 --> 00:52:38.229
Sherrilyne Eiffle is a former head

1729
00:52:38.230 --> 00:52:39.809
of the NAACP Legal Defense Fund.

1730
00:52:39.810 --> 00:52:40.669
She's a professor at Howard

1731
00:52:40.670 --> 00:52:42.669
University, and

1732
00:52:42.670 --> 00:52:44.129
she was writing about the McMahon

1733
00:52:44.130 --> 00:52:45.269
decision.

1734
00:52:45.270 --> 00:52:47.209
So this was a decision that came

1735
00:52:47.210 --> 00:52:48.169
out, is it yesterday?

1736
00:52:48.170 --> 00:52:50.089
I lose track of time,

1737
00:52:50.090 --> 00:52:52.429
that says that

1738
00:52:52.430 --> 00:52:54.229
the Supreme Court is allowing Trump

1739
00:52:54.230 --> 00:52:55.749
to dismantle the Department of

1740
00:52:55.750 --> 00:52:57.609
Education in the

1741
00:52:57.610 --> 00:52:58.989
interim while the issue is being

1742
00:52:58.990 --> 00:53:00.889
decided on the shadow docket.

1743
00:53:00.890 --> 00:53:02.049
And unlike the three sentences

1744
00:53:02.050 --> 00:53:03.989
Justin referred to in the earlier

1745
00:53:03.990 --> 00:53:06.669
case, there were no sentences given,

1746
00:53:06.670 --> 00:53:07.809
no explanation given.

1747
00:53:08.990 --> 00:53:10.809
So here's what Sherilyn wrote on her

1748
00:53:10.810 --> 00:53:13.289
substack. My conclusion a year later

1749
00:53:13.290 --> 00:53:15.469
about the Relationship

1750
00:53:15.470 --> 00:53:17.049
between Trump and the courts is

1751
00:53:17.050 --> 00:53:18.729
simple We must with clear eyes

1752
00:53:18.730 --> 00:53:20.089
confront the only reasonable

1753
00:53:20.090 --> 00:53:21.649
explanation for the actions of the

1754
00:53:21.650 --> 00:53:23.389
conserves on the Supreme Court over

1755
00:53:23.390 --> 00:53:25.469
the past two years The

1756
00:53:25.470 --> 00:53:26.769
conservative majority on this goes

1757
00:53:26.770 --> 00:53:28.069
is fully aligned with President

1758
00:53:28.070 --> 00:53:29.389
Trump's vision of its executive

1759
00:53:29.390 --> 00:53:31.389
power Not because they're up to

1760
00:53:31.390 --> 00:53:32.449
something or because of money

1761
00:53:32.450 --> 00:53:34.129
interests But because the conserved

1762
00:53:34.130 --> 00:53:35.349
on this court have come to generally

1763
00:53:35.350 --> 00:53:37.429
embrace the MAGA vision of Trump's

1764
00:53:37.430 --> 00:53:39.009
presidential power They are aligned

1765
00:53:39.010 --> 00:53:40.409
with his claim to unfettered

1766
00:53:40.410 --> 00:53:41.989
executive power and they don't

1767
00:53:41.990 --> 00:53:43.869
intend to restrain him precedent

1768
00:53:43.870 --> 00:53:45.719
to public interest The integrity of

1769
00:53:45.720 --> 00:53:46.879
lower courts, and I fear even the

1770
00:53:46.880 --> 00:53:48.639
Constitution must yield, they

1771
00:53:48.640 --> 00:53:49.999
believe, to that vision.

1772
00:53:50.000 --> 00:53:51.839
So two very different views,

1773
00:53:51.840 --> 00:53:53.079
one I think giving the court an A,

1774
00:53:53.080 --> 00:53:55.258
the other giving the Court an F.

1775
00:53:55.259 --> 00:53:57.379
And I wanted to just

1776
00:53:57.380 --> 00:53:59.159
get some views of the panelists.

1777
00:53:59.160 --> 00:54:01.579
We've got certainly an unprecedented

1778
00:54:01.580 --> 00:54:04.299
situation where this

1779
00:54:04.300 --> 00:54:05.639
president has gone to the Supreme

1780
00:54:05.640 --> 00:54:07.439
Court for emergency relief more than

1781
00:54:07.440 --> 00:54:08.780
the last four

1782
00:54:10.500 --> 00:54:11.459
president's administrations

1783
00:54:11.460 --> 00:54:13.499
combined. And

1784
00:54:13.500 --> 00:54:15.469
yet He's winning almost all

1785
00:54:15.470 --> 00:54:17.209
of his cases, so what can we learn

1786
00:54:17.210 --> 00:54:18.210
from all of this?

1787
00:54:20.950 --> 00:54:23.009
So I was with

1788
00:54:23.010 --> 00:54:24.709
Lenhart in the Times in saying the

1789
00:54:24.710 --> 00:54:26.529
courts, plural, are doing

1790
00:54:26.530 --> 00:54:27.389
a pretty good job.

1791
00:54:27.390 --> 00:54:29.189
And I think they really are.

1792
00:54:29.190 --> 00:54:30.789
And I that's independent of which

1793
00:54:30.790 --> 00:54:32.649
party happened to appoint

1794
00:54:32.650 --> 00:54:34.349
them to their positions and

1795
00:54:34.350 --> 00:54:36.149
independent of their Senate confirmations.

1796
00:54:36.150 --> 00:54:37.969
Trial courts and appellate courts,

1797
00:54:37.970 --> 00:54:39.749
I don't agree with every decision,

1798
00:54:39.750 --> 00:54:41.409
but they more or less seem to be

1799
00:54:41.410 --> 00:54:42.509
acting as courts.

1800
00:54:42.510 --> 00:54:44.129
The Supreme Court is not.

1801
00:54:44.130 --> 00:54:46.449
It's acting as a power center.

1802
00:54:46.450 --> 00:54:48.469
When it delivers rulings

1803
00:54:48.470 --> 00:54:50.499
that impact people's lives and the

1804
00:54:50.500 --> 00:54:52.360
The only explanation they give is...

1805
00:54:57.630 --> 00:54:59.289
That's something we expect from an

1806
00:54:59.290 --> 00:55:01.289
emperor because they can, not

1807
00:55:01.290 --> 00:55:02.649
something we'd expect from a court

1808
00:55:02.650 --> 00:55:04.789
whose job is to explain itself

1809
00:55:04.790 --> 00:55:06.669
and yield prescriptions

1810
00:55:06.670 --> 00:55:08.449
that other courts follow.

1811
00:55:08.450 --> 00:55:10.309
So I give the trial

1812
00:55:10.310 --> 00:55:11.489
courts and appellate courts given

1813
00:55:11.490 --> 00:55:12.909
the tools that they've had,

1814
00:55:12.910 --> 00:55:14.989
something close to an A, I give this

1815
00:55:14.990 --> 00:55:17.049
Supreme Court on its regular merits

1816
00:55:17.050 --> 00:55:19.029
docket, pretty mixed reviews,

1817
00:55:19.030 --> 00:55:20.849
I give it a flat F

1818
00:55:20.850 --> 00:55:22.889
and D easily for its use

1819
00:55:22.890 --> 00:55:24.289
of the emergency docket because what

1820
00:55:24.290 --> 00:55:26.229
it's doing isn't law and it's a body

1821
00:55:26.230 --> 00:55:27.489
whose job is to do law.

1822
00:55:28.740 --> 00:55:30.019
Congress, I'm not even sure is

1823
00:55:30.020 --> 00:55:31.239
showing up for class.

1824
00:55:31.240 --> 00:55:33.259
I don't know how to grade.

1825
00:55:33.260 --> 00:55:35.239
It used to be that members of

1826
00:55:35.240 --> 00:55:36.999
the budget committees would go home

1827
00:55:37.000 --> 00:55:38.619
to their constituents and explain to

1828
00:55:38.620 --> 00:55:39.659
their constituent that they are the

1829
00:55:39.660 --> 00:55:40.819
most powerful people in Congress

1830
00:55:40.820 --> 00:55:41.919
because they decide where all the

1831
00:55:41.920 --> 00:55:43.139
federal money goes.

1832
00:55:43.140 --> 00:55:45.159
And then the president and Elon

1833
00:55:45.160 --> 00:55:46.619
Musk showed up and decided to make

1834
00:55:46.620 --> 00:55:48.099
different decisions and Congress

1835
00:55:48.100 --> 00:55:50.099
didn't raise a

1836
00:55:50.100 --> 00:55:52.179
peep about that very strong,

1837
00:55:52.180 --> 00:55:55.239
very clear Article I prerogative.

1838
00:55:55.240 --> 00:55:57.219
And that is mystifying to me.

1839
00:55:57.220 --> 00:55:59.219
That's not

1840
00:55:59.220 --> 00:56:00.979
They are not functioning as a

1841
00:56:00.980 --> 00:56:01.879
congress, so I don't know how to

1842
00:56:01.880 --> 00:56:03.299
grade whatever it is We've got that

1843
00:56:03.300 --> 00:56:05.219
meets on Capitol Hill because it's

1844
00:56:05.220 --> 00:56:06.439
not a legislature at this point

1845
00:56:09.720 --> 00:56:11.539
Whoa, OK, so I

1846
00:56:11.540 --> 00:56:13.439
think I had

1847
00:56:13.440 --> 00:56:15.099
a similar reaction to Professor

1848
00:56:15.100 --> 00:56:16.100
McConnell's.

1849
00:56:18.590 --> 00:56:20.689
Opinion as you, which is

1850
00:56:20.690 --> 00:56:21.949
courts, yes.

1851
00:56:21.950 --> 00:56:23.729
Law courts are cranking out

1852
00:56:23.730 --> 00:56:26.149
thoughtful opinions, finding facts,

1853
00:56:26.150 --> 00:56:27.150
working hard,

1854
00:56:28.190 --> 00:56:30.149
making judgment

1855
00:56:30.150 --> 00:56:31.769
calls that are reasoned about

1856
00:56:31.770 --> 00:56:33.109
whether the administration's actions

1857
00:56:33.110 --> 00:56:34.769
are lawful or not.

1858
00:56:34.770 --> 00:56:36.309
And by and large, they're finding

1859
00:56:36.310 --> 00:56:38.189
them not. I mean, the statistics are

1860
00:56:38.190 --> 00:56:39.190
pretty.

1861
00:56:40.850 --> 00:56:42.229
And then the Supreme Court's

1862
00:56:42.230 --> 00:56:43.789
intervening. And this is where I

1863
00:56:43.790 --> 00:56:45.109
think maybe if they wanted to do a

1864
00:56:45.110 --> 00:56:47.409
good job, they would do less, right?

1865
00:56:47.410 --> 00:56:48.869
Let things percolate.

1866
00:56:48.870 --> 00:56:49.909
Let things get to the court.

1867
00:56:49.910 --> 00:56:51.569
That doesn't mean that they should

1868
00:56:51.570 --> 00:56:53.109
never be intervening, but it does

1869
00:56:53.110 --> 00:56:54.549
make me wonder about the 20

1870
00:56:54.550 --> 00:56:56.009
interventions that we've seen over

1871
00:56:56.010 --> 00:56:57.369
the last six months. It seems

1872
00:56:57.370 --> 00:56:58.969
extreme, and it does suggest that

1873
00:56:58.970 --> 00:57:00.529
something other than the normal

1874
00:57:00.530 --> 00:57:02.849
operation of the institution is

1875
00:57:02.850 --> 00:57:04.269
occurring. And maybe this is just

1876
00:57:04.270 --> 00:57:05.429
the new normal.

1877
00:57:05.430 --> 00:57:07.209
But it is interesting that the kinds

1878
00:57:07.210 --> 00:57:08.829
of emergency relief that we're

1879
00:57:08.830 --> 00:57:10.539
seeing. Uh, the Trump administration

1880
00:57:10.540 --> 00:57:12.779
get is not on all fours with the

1881
00:57:12.780 --> 00:57:14.719
kinds of emergency relief we saw in

1882
00:57:14.720 --> 00:57:15.499
the Biden era.

1883
00:57:15.500 --> 00:57:17.039
It's all, you know, we, we kind of

1884
00:57:17.040 --> 00:57:18.579
can compare and contrast some of the

1885
00:57:18.580 --> 00:57:20.479
cases, right, where it was beyond

1886
00:57:20.480 --> 00:57:22.879
the Biden administration's power to

1887
00:57:22.880 --> 00:57:24.839
freeze student debt, but it is

1888
00:57:24.840 --> 00:57:26.459
within the Trump administrations

1889
00:57:26.460 --> 00:57:28.299
power to dismantle the entire

1890
00:57:28.300 --> 00:57:29.439
department of education.

1891
00:57:29.440 --> 00:57:31.919
So the lack of parallelism does

1892
00:57:31.920 --> 00:57:34.059
lead to some troubling questions.

1893
00:57:34.060 --> 00:57:35.939
I think the, I wanted to go to the

1894
00:57:35.940 --> 00:57:37.859
Charlene Ifill column from today,

1895
00:57:37.860 --> 00:57:38.860
which I thought was.

1896
00:57:39.880 --> 00:57:41.799
Worrisome because part of

1897
00:57:41.800 --> 00:57:43.659
the import of her

1898
00:57:43.660 --> 00:57:45.659
column is that she is

1899
00:57:45.660 --> 00:57:46.999
increasingly less and less sanguine

1900
00:57:47.000 --> 00:57:49.539
on the birthright citizenship case.

1901
00:57:49.540 --> 00:57:51.059
She says the fact that they said

1902
00:57:51.060 --> 00:57:52.979
nothing should tip us

1903
00:57:52.980 --> 00:57:55.259
off that there's more to worry about

1904
00:57:55.260 --> 00:57:57.119
than perhaps we are.

1905
00:57:57.120 --> 00:57:58.339
She doesn't think it's inevitable

1906
00:57:58.340 --> 00:58:00.519
that the court will, if

1907
00:58:00.520 --> 00:58:01.959
they decide this issue on the merits

1908
00:58:01.960 --> 00:58:04.039
ever, that they will decide that

1909
00:58:04.040 --> 00:58:05.179
the Trump administration has the

1910
00:58:05.180 --> 00:58:06.959
power to strip citizenship from

1911
00:58:06.960 --> 00:58:08.809
certain. Individuals, but she does

1912
00:58:08.810 --> 00:58:10.949
think that it's more likely

1913
00:58:10.950 --> 00:58:13.069
than she would have said it

1914
00:58:13.070 --> 00:58:14.169
was a year ago.

1915
00:58:14.170 --> 00:58:16.029
And there, she really sort of speaks

1916
00:58:16.030 --> 00:58:18.029
to the need to mobilize

1917
00:58:18.030 --> 00:58:20.069
democratic opinion on

1918
00:58:20.070 --> 00:58:21.969
the issue because the court is, in

1919
00:58:21.970 --> 00:58:23.869
some ways, doing something

1920
00:58:23.870 --> 00:58:25.349
other than judging.

1921
00:58:25.350 --> 00:58:27.269
And popular opinion on this

1922
00:58:27.270 --> 00:58:28.309
issue matters.

1923
00:58:28.310 --> 00:58:29.749
And it suggests that the sort of

1924
00:58:29.750 --> 00:58:31.569
role for people to push

1925
00:58:31.570 --> 00:58:33.549
back to learn more, to understand

1926
00:58:33.550 --> 00:58:35.509
better the legislative

1927
00:58:35.510 --> 00:58:37.849
history of the 14th amendment.

1928
00:58:37.850 --> 00:58:39.909
And the justifications

1929
00:58:39.910 --> 00:58:41.889
for the

1930
00:58:41.890 --> 00:58:43.729
amendment that sort of undergird

1931
00:58:43.730 --> 00:58:45.549
multiracial democracy are

1932
00:58:45.550 --> 00:58:47.189
very, very important in this moment.

1933
00:58:47.190 --> 00:58:49.269
And so I think it's

1934
00:58:49.270 --> 00:58:51.609
worth lifting that up just as

1935
00:58:51.610 --> 00:58:53.769
a through line from your

1936
00:58:53.770 --> 00:58:54.770
comments on CASA.

1937
00:58:56.120 --> 00:58:57.579
Eugene or Kerry?

1938
00:58:57.580 --> 00:58:59.459
So I don't have as much to say about

1939
00:58:59.460 --> 00:59:02.619
some of these issues because they're

1940
00:59:02.620 --> 00:59:03.659
largely outside my field.

1941
00:59:03.660 --> 00:59:04.699
I didn't want to ask.

1942
00:59:04.700 --> 00:59:06.739
My understanding is that when it

1943
00:59:06.740 --> 00:59:11.479
came to the

1944
00:59:11.480 --> 00:59:13.599
Biden administration's student loan

1945
00:59:13.600 --> 00:59:15.659
matter, that was ultimately

1946
00:59:15.660 --> 00:59:17.259
resolved by the court after a full

1947
00:59:17.260 --> 00:59:18.959
briefing and argument, right?

1948
00:59:18.960 --> 00:59:21.279
So a lot of these things are

1949
00:59:21.280 --> 00:59:23.259
indeed orders

1950
00:59:23.260 --> 00:59:24.979
with very little explanation, but I

1951
00:59:24.980 --> 00:59:26.999
think it's not uncommon historically

1952
00:59:27.000 --> 00:59:28.699
on the shadow docket to have

1953
00:59:28.700 --> 00:59:29.780
relatively little explanation.

1954
00:59:31.030 --> 00:59:32.389
Yeah, but there's a massive

1955
00:59:32.390 --> 00:59:33.989
explosion of number of cases on the

1956
00:59:33.990 --> 00:59:34.830
shadow docket. That's right.

1957
00:59:34.831 --> 00:59:35.269
That's right.

1958
00:59:35.270 --> 00:59:37.089
So what has happened is a lot

1959
00:59:37.090 --> 00:59:39.129
of lower court judges, I think some

1960
00:59:39.130 --> 00:59:41.509
of them, picked carefully

1961
00:59:41.510 --> 00:59:43.509
by the plaintiff's lawyers,

1962
00:59:43.510 --> 00:59:45.349
which is what the plaintiffs'

1963
00:59:45.350 --> 00:59:47.709
lawyer's job is, right?

1964
00:59:47.710 --> 00:59:49.369
People say forum shopping as if it's

1965
00:59:49.370 --> 00:59:51.209
a bad thing. No, it's your job as

1966
00:59:51.210 --> 00:59:53.029
a lawyer, whether you're on the left

1967
00:59:53.030 --> 00:59:54.329
or the right, to shop for forums.

1968
00:59:54.330 --> 00:59:55.849
But my sense is what's happening is

1969
00:59:55.850 --> 00:59:57.789
that the Supreme Court's view is,

1970
00:59:57.790 --> 00:59:59.559
you know, When it comes up on the

1971
00:59:59.560 --> 01:00:01.258
merits, we'll decide it with full

1972
01:00:01.259 --> 01:00:03.159
briefing and full reasoning on the

1973
01:00:03.160 --> 01:00:05.159
merit, but some of this stuff is

1974
01:00:05.160 --> 01:00:07.258
coming up on

1975
01:00:07.259 --> 01:00:09.318
stays of orders where we think

1976
01:00:09.319 --> 01:00:11.798
one district judge shouldn't

1977
01:00:11.799 --> 01:00:12.799
be blocking

1978
01:00:14.060 --> 01:00:15.898
what the entirety of the executive

1979
01:00:15.899 --> 01:00:16.869
branch is.

1980
01:00:16.870 --> 01:00:18.588
Maybe wrong, but I think that helps

1981
01:00:18.589 --> 01:00:19.528
explain some of it.

1982
01:00:19.529 --> 01:00:20.929
I did want to mention one thing,

1983
01:00:20.930 --> 01:00:22.249
which is less, or it's a different

1984
01:00:22.250 --> 01:00:23.829
kind of procedure about the

1985
01:00:23.830 --> 01:00:24.969
birthright citizenship thing.

1986
01:00:24.970 --> 01:00:27.168
I'm inclined to say, based on my

1987
01:00:27.169 --> 01:00:28.429
limited knowledge of this, that

1988
01:00:28.430 --> 01:00:30.329
indeed the 14th Amendment protects

1989
01:00:30.330 --> 01:00:31.370
birthrights citizenship.

1990
01:00:32.490 --> 01:00:34.309
I actually think that

1991
01:00:34.310 --> 01:00:36.008
birthright citizenship is a very bad

1992
01:00:36.009 --> 01:00:38.008
idea as a policy matter.

1993
01:00:38.009 --> 01:00:39.809
I think it's not an accident that

1994
01:00:39.810 --> 01:00:41.729
very many Western democracies do

1995
01:00:41.730 --> 01:00:42.789
not adopt it.

1996
01:00:42.790 --> 01:00:44.909
I think the idea that somebody

1997
01:00:44.910 --> 01:00:46.878
comes to America eight months

1998
01:00:46.879 --> 01:00:48.599
pregnant and has a baby, which, by

1999
01:00:48.600 --> 01:00:50.679
the way, I should say, if

2000
01:00:50.680 --> 01:00:52.559
this were my family,

2001
01:00:52.560 --> 01:00:53.719
I would say that's a wonderful

2002
01:00:53.720 --> 01:00:54.579
thing, right?

2003
01:00:54.580 --> 01:00:56.298
It's a wonder thing to do for your

2004
01:00:56.299 --> 01:00:58.539
child. But it's not clear why,

2005
01:00:58.540 --> 01:01:00.619
as a policy matter,

2006
01:01:00.620 --> 01:01:02.559
that decision by somebody who

2007
01:01:02.560 --> 01:01:04.659
before was unrelated to the United

2008
01:01:04.660 --> 01:01:06.459
States should be, even if they come

2009
01:01:06.460 --> 01:01:08.378
perfectly legally, should

2010
01:01:08.379 --> 01:01:09.798
be a basis for America

2011
01:01:11.000 --> 01:01:12.818
to provide birthright

2012
01:01:12.819 --> 01:01:14.298
citizenship. I think the only

2013
01:01:14.299 --> 01:01:16.369
reason. To have birthrights,

2014
01:01:16.370 --> 01:01:17.369
to have the court recognize

2015
01:01:17.370 --> 01:01:18.889
birthright citizenship is because

2016
01:01:18.890 --> 01:01:20.608
the text, interpreted in light of

2017
01:01:20.609 --> 01:01:22.409
its original meaning, the text by

2018
01:01:22.410 --> 01:01:24.289
itself, as in with so many things,

2019
01:01:24.290 --> 01:01:25.568
can't tell you the full answer

2020
01:01:25.569 --> 01:01:27.528
because it has certain legal reason

2021
01:01:27.529 --> 01:01:28.869
that you have to understand what it

2022
01:01:28.870 --> 01:01:30.849
means. The text is interpreted

2023
01:01:30.850 --> 01:01:32.809
through original meaning says

2024
01:01:32.810 --> 01:01:34.668
that's the law, and whether you like

2025
01:01:34.669 --> 01:01:35.989
it or not, that's law.

2026
01:01:35.990 --> 01:01:37.528
I think it's a very good argument,

2027
01:01:37.529 --> 01:01:38.749
but I think that it's no accident

2028
01:01:38.750 --> 01:01:40.528
that the arguments in favor of

2029
01:01:40.529 --> 01:01:42.168
birthright citizenship are so

2030
01:01:42.169 --> 01:01:44.539
originalist. If you imagine...

2031
01:01:44.540 --> 01:01:46.579
If the conservatives on the court

2032
01:01:46.580 --> 01:01:48.778
were to adopt a living constitution

2033
01:01:48.779 --> 01:01:49.779
view,

2034
01:01:50.620 --> 01:01:52.639
that's not gonna be very good for

2035
01:01:52.640 --> 01:01:53.818
the defenders of birthright

2036
01:01:53.819 --> 01:01:55.239
citizenship because they could very

2037
01:01:55.240 --> 01:01:57.258
well say, well, times have changed.

2038
01:01:57.259 --> 01:01:59.219
We have different transportation,

2039
01:01:59.220 --> 01:02:01.499
different patterns of migration.

2040
01:02:01.500 --> 01:02:03.438
But back in 1868, nobody would

2041
01:02:03.439 --> 01:02:05.298
come here as a tourist in

2042
01:02:05.299 --> 01:02:06.299
the eighth month of pregnancy.

2043
01:02:07.240 --> 01:02:09.039
Just transportation mechanisms at

2044
01:02:09.040 --> 01:02:10.999
least overseas would preclude

2045
01:02:11.000 --> 01:02:12.699
that from. From happening.

2046
01:02:12.700 --> 01:02:14.519
We didn't have the same kind of

2047
01:02:14.520 --> 01:02:16.019
rules with regard to immigration.

2048
01:02:16.020 --> 01:02:17.338
There really wasn't much by way of

2049
01:02:17.339 --> 01:02:19.119
illegal immigration then because the

2050
01:02:19.120 --> 01:02:20.938
country was constantly seeking more

2051
01:02:20.939 --> 01:02:22.599
and more migrants. There was a labor

2052
01:02:22.600 --> 01:02:24.559
shortage, a constant labor

2053
01:02:24.560 --> 01:02:26.459
shortage. So in any event, I do

2054
01:02:26.460 --> 01:02:28.338
think it's noteworthy that in

2055
01:02:28.339 --> 01:02:30.719
this area, the people who

2056
01:02:30.720 --> 01:02:33.059
want to take the liberal position on

2057
01:02:33.060 --> 01:02:34.918
birthright citizenship are

2058
01:02:34.919 --> 01:02:36.858
making very much the

2059
01:02:36.859 --> 01:02:37.959
originalist argument.

2060
01:02:37.960 --> 01:02:39.099
And if...

2061
01:02:39.100 --> 01:02:40.739
The conservatives were to adopt

2062
01:02:40.740 --> 01:02:42.298
living constitutionalism, that would

2063
01:02:42.299 --> 01:02:44.849
be very bad for the challengers.

2064
01:02:44.850 --> 01:02:47.048
Before I give Cary a chance to

2065
01:02:47.049 --> 01:02:48.249
weigh in on the shadow docket

2066
01:02:48.250 --> 01:02:49.749
question, I just want to ask,

2067
01:02:49.750 --> 01:02:51.389
Eugene, do you think that the court

2068
01:02:51.390 --> 01:02:53.209
does a disservice when it

2069
01:02:53.210 --> 01:02:55.329
gives no explanation

2070
01:02:55.330 --> 01:02:56.769
whatsoever, not even the three

2071
01:02:56.770 --> 01:02:57.790
sentences that we saw?

2072
01:02:57.791 --> 01:02:59.679
Right. I am always in favor

2073
01:02:59.680 --> 01:03:00.599
of more explanations.

2074
01:03:00.600 --> 01:03:01.858
It's interesting. If you look at

2075
01:03:01.859 --> 01:03:03.059
courts throughout America,

2076
01:03:04.060 --> 01:03:06.438
most federal appellate courts write

2077
01:03:06.439 --> 01:03:07.938
relatively reasoned opinions.

2078
01:03:07.939 --> 01:03:09.938
Some don't. 11Th Circuit does a lot

2079
01:03:09.939 --> 01:03:11.418
of things through one line judgment

2080
01:03:11.419 --> 01:03:13.159
order, affirmed or denied.

2081
01:03:13.160 --> 01:03:15.219
Federal district courts generally

2082
01:03:15.220 --> 01:03:17.459
in non-procedural matters

2083
01:03:17.460 --> 01:03:19.438
and even many procedural ones write

2084
01:03:19.439 --> 01:03:21.059
relatively detailed opinions.

2085
01:03:21.060 --> 01:03:23.318
A lot of state courts, including

2086
01:03:23.319 --> 01:03:24.979
California courts, just issue one

2087
01:03:24.980 --> 01:03:26.199
liners.

2088
01:03:26.200 --> 01:03:27.918
I think it would be better,

2089
01:03:27.919 --> 01:03:29.818
especially, I think, if there is a

2090
01:03:29.819 --> 01:03:30.619
long dissent.

2091
01:03:30.620 --> 01:03:32.459
I would like to think I'd

2092
01:03:32.460 --> 01:03:34.278
like to have somebody write along a

2093
01:03:34.279 --> 01:03:35.679
majority or concurrence.

2094
01:03:35.680 --> 01:03:37.619
But to me, I

2095
01:03:37.620 --> 01:03:39.318
always try to judge these things

2096
01:03:39.319 --> 01:03:41.179
with an eye towards the

2097
01:03:41.180 --> 01:03:42.619
custom of the court.

2098
01:03:42.620 --> 01:03:44.358
And I think even if I think perhaps

2099
01:03:44.359 --> 01:03:45.918
the court should shift to a custom

2100
01:03:45.919 --> 01:03:47.798
of offering more reasoned opinions

2101
01:03:47.799 --> 01:03:49.398
in this area, my sense is that

2102
01:03:49.399 --> 01:03:50.938
there's long been a custom that

2103
01:03:50.939 --> 01:03:52.539
various kinds of state decisions and

2104
01:03:52.540 --> 01:03:54.579
other such things have been,

2105
01:03:54.580 --> 01:03:55.628
have been.

2106
01:03:55.629 --> 01:03:58.048
Three sentences or fewer,

2107
01:03:58.049 --> 01:03:59.049
but maybe I'm mistaken.

2108
01:04:00.870 --> 01:04:02.889
I guess I wanna start by saying

2109
01:04:02.890 --> 01:04:04.869
perhaps you all know what the

2110
01:04:04.870 --> 01:04:05.969
shadow docket or the emergency

2111
01:04:05.970 --> 01:04:08.008
docket is, but in case you're

2112
01:04:08.009 --> 01:04:09.969
not clear about, this is a

2113
01:04:09.970 --> 01:04:12.048
major transformation

2114
01:04:12.049 --> 01:04:13.769
that we are undergoing in the way

2115
01:04:13.770 --> 01:04:15.128
that the court does its business,

2116
01:04:15.129 --> 01:04:16.508
and I think it's worth just saying

2117
01:04:16.509 --> 01:04:18.489
something about it, which is,

2118
01:04:18.490 --> 01:04:20.349
in general, there's

2119
01:04:20.350 --> 01:04:22.528
months, years of preparation

2120
01:04:22.529 --> 01:04:23.889
that go into these cases.

2121
01:04:23.890 --> 01:04:25.749
There are briefs written and

2122
01:04:25.750 --> 01:04:27.469
reply briefs written and amicus

2123
01:04:27.470 --> 01:04:28.989
briefs, and then they study them and

2124
01:04:28.990 --> 01:04:30.608
they read them, and there's a.

2125
01:04:30.609 --> 01:04:32.849
Oral arguments where they

2126
01:04:32.850 --> 01:04:34.548
listen back and forth, ask the

2127
01:04:34.549 --> 01:04:36.028
lawyers questions, you can hear it

2128
01:04:36.029 --> 01:04:38.289
on C-SPAN, and this

2129
01:04:38.290 --> 01:04:40.329
then, there are many, many months

2130
01:04:40.330 --> 01:04:42.329
of deliberation, and they

2131
01:04:42.330 --> 01:04:44.349
publish these opinions

2132
01:04:44.350 --> 01:04:45.728
that are so long they're hard to

2133
01:04:45.729 --> 01:04:47.349
assign to my students because they

2134
01:04:47.350 --> 01:04:50.028
go on and on and like 150 pages,

2135
01:04:50.029 --> 01:04:51.869
but it's good, it's a

2136
01:04:51.870 --> 01:04:53.088
lot of explanation.

2137
01:04:53.089 --> 01:04:54.349
Then the dissent tells you why they

2138
01:04:54.350 --> 01:04:55.749
disagree, and the majority tells you

2139
01:04:55.750 --> 01:04:57.289
what their reasoning is, and this is

2140
01:04:57.290 --> 01:04:58.919
important for so many reasons.

2141
01:04:58.920 --> 01:05:00.838
But one of which is the rule of

2142
01:05:00.839 --> 01:05:02.778
law. They've laid down their

2143
01:05:02.779 --> 01:05:04.139
thinking and their principles and

2144
01:05:04.140 --> 01:05:06.079
their rules so that when the next

2145
01:05:06.080 --> 01:05:07.898
case comes along, it's

2146
01:05:07.899 --> 01:05:09.719
not partial, it doesn't depend on

2147
01:05:09.720 --> 01:05:11.398
who the plaintiffs are, we can try

2148
01:05:11.399 --> 01:05:13.239
to apply the rules consistently.

2149
01:05:13.240 --> 01:05:14.999
That's the ideal, that's the hope.

2150
01:05:15.000 --> 01:05:16.878
That's why we get these opinions.

2151
01:05:16.879 --> 01:05:18.199
And they serve a lot of purposes.

2152
01:05:18.200 --> 01:05:19.519
Think about the opinion in Brown

2153
01:05:19.520 --> 01:05:21.739
versus Board of Education, and then

2154
01:05:21.740 --> 01:05:23.798
the way that opinion has

2155
01:05:23.799 --> 01:05:25.699
transformed things

2156
01:05:25.700 --> 01:05:26.599
throughout the world.

2157
01:05:26.600 --> 01:05:28.579
Lots of reasons to have these

2158
01:05:28.580 --> 01:05:29.778
opinions.

2159
01:05:29.779 --> 01:05:32.219
There has been a massive explosion

2160
01:05:32.220 --> 01:05:34.179
in what's called cases coming out of

2161
01:05:34.180 --> 01:05:35.858
the shadow docket or the emergency

2162
01:05:35.859 --> 01:05:37.619
docket. This is plan of coming to

2163
01:05:37.620 --> 01:05:38.778
say, whoa, we have an emergency.

2164
01:05:38.779 --> 01:05:39.699
We don't have time to do all of

2165
01:05:39.700 --> 01:05:40.579
that. We don't have time to have a

2166
01:05:40.580 --> 01:05:41.438
world of governments to fill out the briefing

2167
01:05:41.439 --> 01:05:42.919
and then just decide our case right

2168
01:05:42.920 --> 01:05:45.298
away. And the Supreme Court has

2169
01:05:45.299 --> 01:05:47.119
radically expanded the number

2170
01:05:47.120 --> 01:05:49.099
of cases that it is plucking

2171
01:05:49.100 --> 01:05:51.039
from across the country that are not

2172
01:05:51.040 --> 01:05:53.258
fully developed, that don't records,

2173
01:05:53.259 --> 01:05:55.298
than not having extensive

2174
01:05:55.299 --> 01:05:56.769
briefing and oral argument.

2175
01:05:56.770 --> 01:05:59.088
And just issuing decisions

2176
01:05:59.089 --> 01:06:01.008
in a fair number of cases

2177
01:06:01.009 --> 01:06:02.989
saying nothing, including

2178
01:06:02.990 --> 01:06:04.548
the recent decision saying you can

2179
01:06:04.549 --> 01:06:05.849
fire all the people on behalf of the

2180
01:06:05.850 --> 01:06:06.648
people in the Department of

2181
01:06:06.649 --> 01:06:08.548
Education, nothing.

2182
01:06:08.549 --> 01:06:09.929
No, no, why is that okay?

2183
01:06:09.930 --> 01:06:12.209
It seems to me deeply illegal

2184
01:06:12.210 --> 01:06:13.210
to do that.

2185
01:06:14.069 --> 01:06:16.008
The Supreme Court just said no,

2186
01:06:16.009 --> 01:06:17.449
you can do that without any

2187
01:06:17.450 --> 01:06:20.048
explanation at all.

2188
01:06:20.049 --> 01:06:21.789
And increasingly, this is what we're

2189
01:06:21.790 --> 01:06:22.588
getting.

2190
01:06:22.589 --> 01:06:24.608
And there are many problems

2191
01:06:24.609 --> 01:06:25.609
with this.

2192
01:06:26.220 --> 01:06:27.338
I don't even think this is the

2193
01:06:27.339 --> 01:06:28.919
greatest problem, but one of them is

2194
01:06:28.920 --> 01:06:30.278
the court is again and again and

2195
01:06:30.279 --> 01:06:32.559
again and doing this

2196
01:06:32.560 --> 01:06:34.818
to rule for the Trump administration

2197
01:06:34.819 --> 01:06:37.019
and to stop the lower court judges

2198
01:06:37.020 --> 01:06:38.659
who have issues.

2199
01:06:38.660 --> 01:06:40.059
Like Rick said, think about a theme

2200
01:06:40.060 --> 01:06:41.878
for the term and my theme for term

2201
01:06:41.879 --> 01:06:44.019
would be the Supreme Court's

2202
01:06:44.020 --> 01:06:45.959
apparent view that the biggest

2203
01:06:45.960 --> 01:06:48.728
problem in America legally right now

2204
01:06:48.729 --> 01:06:50.889
is that lower court judges are

2205
01:06:50.890 --> 01:06:52.849
interfering with the

2206
01:06:52.850 --> 01:06:54.608
Trump administration's agenda.

2207
01:06:54.609 --> 01:06:56.568
And these radical lower

2208
01:06:56.569 --> 01:06:58.289
court judge, appointed by

2209
01:06:58.290 --> 01:07:00.688
Republicans and Democrats, who are

2210
01:07:00.689 --> 01:07:02.008
stopping what the Trump

2211
01:07:02.009 --> 01:07:02.929
administrators are saying, this is

2212
01:07:02.930 --> 01:07:04.889
unconstitutional, this is illegal,

2213
01:07:04.890 --> 01:07:07.148
this, the court is repeatedly

2214
01:07:07.149 --> 01:07:09.108
overturning and overruling those

2215
01:07:09.109 --> 01:07:11.108
lower court justices and some lower

2216
01:07:11.109 --> 01:07:13.289
court justice, and sometimes even

2217
01:07:13.290 --> 01:07:15.349
saying, disregarding

2218
01:07:15.350 --> 01:07:17.199
their work. Not valuing what

2219
01:07:17.200 --> 01:07:18.919
they have to say, not valuating the

2220
01:07:18.920 --> 01:07:20.499
job that they're doing, and we're

2221
01:07:20.500 --> 01:07:22.478
seeing a lot of

2222
01:07:22.479 --> 01:07:24.398
a real uptick in threats and

2223
01:07:24.399 --> 01:07:26.438
violence against district court

2224
01:07:26.439 --> 01:07:28.298
judges that the court,

2225
01:07:28.299 --> 01:07:30.159
I think, is fueling.

2226
01:07:30.160 --> 01:07:31.978
I mean, there have been two

2227
01:07:31.979 --> 01:07:33.919
dozen or more pizzas

2228
01:07:33.920 --> 01:07:35.938
sent to district court judge in

2229
01:07:35.939 --> 01:07:37.858
the name of the,

2230
01:07:37.859 --> 01:07:40.179
the district court's judge's son,

2231
01:07:40.180 --> 01:07:41.179
there was a district court judgments

2232
01:07:41.180 --> 01:07:43.159
son who was killed by an

2233
01:07:43.160 --> 01:07:44.619
angry litigant and.

2234
01:07:44.620 --> 01:07:46.298
And people in MAGA world are sending

2235
01:07:46.299 --> 01:07:48.338
pizzas to district court judges in

2236
01:07:48.339 --> 01:07:50.419
his name, in the dead son's name,

2237
01:07:50.420 --> 01:07:51.919
saying this pizza delivery is for

2238
01:07:51.920 --> 01:07:53.858
this kid's, this dead

2239
01:07:53.859 --> 01:07:54.659
kid's name.

2240
01:07:54.660 --> 01:07:56.739
I have a, I know a federal

2241
01:07:56.740 --> 01:07:58.659
district court judge who is being

2242
01:07:58.660 --> 01:08:00.519
terrorized, who they're showing off

2243
01:08:00.520 --> 01:08:02.398
at his spouse's work, his children

2244
01:08:02.399 --> 01:08:04.659
have security. It is very scary

2245
01:08:04.660 --> 01:08:06.478
to be a district court judge right

2246
01:08:06.479 --> 01:08:07.858
now in this country.

2247
01:08:07.859 --> 01:08:09.758
And the Supreme Court is

2248
01:08:09.759 --> 01:08:11.639
absolutely over.

2249
01:08:11.640 --> 01:08:13.739
Ruling and overriding the

2250
01:08:13.740 --> 01:08:15.239
work of these district court judges

2251
01:08:15.240 --> 01:08:17.659
and not supporting them and

2252
01:08:17.660 --> 01:08:19.598
Even if you excerpt

2253
01:08:19.599 --> 01:08:21.478
out exempt out from the kind of

2254
01:08:21.479 --> 01:08:23.299
personal issue Not

2255
01:08:23.300 --> 01:08:25.218
taking their work and the record

2256
01:08:25.219 --> 01:08:27.058
seriously and not explaining

2257
01:08:27.059 --> 01:08:29.159
to us why it is repeatedly

2258
01:08:29.160 --> 01:08:31.358
Stopping these judges who

2259
01:08:31.359 --> 01:08:32.799
are having repeated problems with

2260
01:08:32.800 --> 01:08:33.598
the Trump administration.

2261
01:08:33.599 --> 01:08:35.619
I think it is a

2262
01:08:35.620 --> 01:08:37.659
real I think is it

2263
01:08:37.660 --> 01:08:39.079
I think, it is, a disaster.

2264
01:08:39.080 --> 01:08:41.369
I, think it, is a five alarm fire

2265
01:08:41.370 --> 01:08:43.509
I think we need to pay attention

2266
01:08:43.510 --> 01:08:45.229
to it. I am very worried about it.

2267
01:08:48.920 --> 01:08:50.638
Would you look like if Justin was

2268
01:08:50.639 --> 01:08:51.699
going to respond a little bit, would

2269
01:08:51.700 --> 01:08:52.818
you? Okay. I wanted to ask something

2270
01:08:52.819 --> 01:08:53.768
about it.

2271
01:08:53.769 --> 01:08:55.888
So I, and I had a modest proposal

2272
01:08:55.889 --> 01:08:57.188
that follows directly on, I share

2273
01:08:57.189 --> 01:08:59.049
many of Kerry's very same

2274
01:08:59.050 --> 01:09:00.589
concerns.

2275
01:09:00.590 --> 01:09:01.929
Part of the problem with the court

2276
01:09:01.930 --> 01:09:03.829
doing this and not explaining itself

2277
01:09:03.830 --> 01:09:05.768
is that we don't know why

2278
01:09:05.769 --> 01:09:07.308
whatever the lower court did was

2279
01:09:07.309 --> 01:09:08.209
wrong.

2280
01:09:08.210 --> 01:09:09.688
Maybe it had to do with a procedural

2281
01:09:09.689 --> 01:09:11.028
glitch, maybe it had do with the

2282
01:09:11.029 --> 01:09:12.129
substance, maybe it's had to with

2283
01:09:12.130 --> 01:09:13.329
it's all too sudden, maybe it'd had

2284
01:09:13.330 --> 01:09:14.808
to the status quo changed too

2285
01:09:14.809 --> 01:09:15.989
quickly, maybe it've had to somebody

2286
01:09:15.990 --> 01:09:17.669
had a typo on the papers.

2287
01:09:17.670 --> 01:09:19.589
We have no idea why, all we

2288
01:09:19.590 --> 01:09:20.929
know is yes or no.

2289
01:09:20.930 --> 01:09:22.749
And I

2290
01:09:22.750 --> 01:09:24.568
think This is controversial, but

2291
01:09:24.569 --> 01:09:25.949
I think trial courts and appellate

2292
01:09:25.950 --> 01:09:27.869
courts owe it

2293
01:09:27.870 --> 01:09:30.049
to the rule of law

2294
01:09:30.050 --> 01:09:32.068
to act as if those

2295
01:09:32.069 --> 01:09:33.888
opinions that come down are really

2296
01:09:33.889 --> 01:09:36.148
just power and

2297
01:09:36.149 --> 01:09:38.108
not try to guess what the

2298
01:09:38.109 --> 01:09:39.369
rationale is for them.

2299
01:09:39.370 --> 01:09:40.749
So for example, when the Supreme

2300
01:09:40.750 --> 01:09:43.289
Court says, stop this

2301
01:09:43.290 --> 01:09:45.209
order that says you may not

2302
01:09:45.210 --> 01:09:47.209
let the Department of Education

2303
01:09:47.210 --> 01:09:49.329
fire 50% of its workforce,

2304
01:09:50.710 --> 01:09:53.049
there's absolutely nothing

2305
01:09:53.050 --> 01:09:54.649
in the rule of law that suggests

2306
01:09:54.650 --> 01:09:56.789
that another court couldn't issue

2307
01:09:56.790 --> 01:09:58.829
an order, in its case, properly

2308
01:09:58.830 --> 01:10:00.949
before it, saying,

2309
01:10:00.950 --> 01:10:02.369
okay, Department of Education, you

2310
01:10:02.370 --> 01:10:03.809
can't fire 50% of the people.

2311
01:10:04.889 --> 01:10:06.629
And the Supreme Court may say no.

2312
01:10:06.630 --> 01:10:08.629
And then another court says, okay.

2313
01:10:08.630 --> 01:10:10.229
Until you tell me why what I'm doing

2314
01:10:10.230 --> 01:10:11.689
is wrong, I'm gonna assume that it

2315
01:10:11.690 --> 01:10:12.729
was something they did, not

2316
01:10:12.730 --> 01:10:14.549
something I'm going, and continue

2317
01:10:14.550 --> 01:10:16.609
to uphold the legal rules

2318
01:10:16.610 --> 01:10:18.308
that the court passes down.

2319
01:10:18.309 --> 01:10:20.388
This is not, I think, advocating

2320
01:10:20.389 --> 01:10:22.049
for lawlessness.

2321
01:10:22.050 --> 01:10:23.848
I want district courts, I want

2322
01:10:23.849 --> 01:10:25.968
appellate courts to obey the

2323
01:10:25.969 --> 01:10:27.409
rules of law that the Supreme Court

2324
01:10:27.410 --> 01:10:28.348
gives.

2325
01:10:28.349 --> 01:10:30.329
But when they're only in individual

2326
01:10:30.330 --> 01:10:32.209
cases with individual case numbers

2327
01:10:32.210 --> 01:10:34.888
saying stop and not explaining why,

2328
01:10:34.889 --> 01:10:36.369
I don't think that creates any

2329
01:10:36.370 --> 01:10:37.968
binding rule for any other court in

2330
01:10:37.969 --> 01:10:38.949
the country.

2331
01:10:38.950 --> 01:10:40.329
And I would hope that courts act

2332
01:10:40.330 --> 01:10:41.330
like that.

2333
01:10:43.700 --> 01:10:44.789
Thank you.

2334
01:10:44.790 --> 01:10:46.768
Yeah, so Carrie, I wanted to

2335
01:10:46.769 --> 01:10:48.848
ask you, so was

2336
01:10:48.849 --> 01:10:50.889
it more than a year ago now,

2337
01:10:52.410 --> 01:10:53.768
this would-be assassin shows up

2338
01:10:53.769 --> 01:10:55.689
outside Justice Kavanaugh's

2339
01:10:55.690 --> 01:10:57.529
house. Now, fortunately he, for

2340
01:10:57.530 --> 01:10:59.589
whatever reason, chickens out, but

2341
01:10:59.590 --> 01:11:01.429
it sounds like he really at least

2342
01:11:01.430 --> 01:11:03.089
was seriously thinking about

2343
01:11:04.389 --> 01:11:05.389
murdering Kavanaagh.

2344
01:11:06.490 --> 01:11:08.348
Now, I think it's just all

2345
01:11:08.349 --> 01:11:09.349
on him.

2346
01:11:10.150 --> 01:11:12.169
I think people have sharply,

2347
01:11:12.170 --> 01:11:14.468
sharply criticized the justices

2348
01:11:14.469 --> 01:11:16.989
for their position on

2349
01:11:16.990 --> 01:11:17.829
Dobbs.

2350
01:11:17.830 --> 01:11:19.009
I think they're perfectly entitled

2351
01:11:19.010 --> 01:11:20.029
to do that.

2352
01:11:20.030 --> 01:11:21.829
And I do think that that in some

2353
01:11:21.830 --> 01:11:23.669
measure may egg on

2354
01:11:23.670 --> 01:11:25.049
some people. The more you criticize

2355
01:11:25.050 --> 01:11:26.949
them as fascists, as oppressors

2356
01:11:26.950 --> 01:11:28.829
and such, more people might say, you

2357
01:11:28.830 --> 01:11:31.129
know, we should take

2358
01:11:31.130 --> 01:11:32.468
matters into our own hands.

2359
01:11:32.469 --> 01:11:34.968
But I think that I

2360
01:11:34.969 --> 01:11:37.058
don't blame the critics.

2361
01:11:37.059 --> 01:11:38.539
But I wonder, Cary, under your

2362
01:11:38.540 --> 01:11:39.979
approach, would you blame the

2363
01:11:39.980 --> 01:11:41.518
critics, right? If you blame The

2364
01:11:41.519 --> 01:11:43.459
Supreme Court because some

2365
01:11:43.460 --> 01:11:45.399
people are threatening judges, would

2366
01:11:45.400 --> 01:11:47.439
you blames the critics of Justice

2367
01:11:47.440 --> 01:11:49.739
Kavanaugh because somebody actually

2368
01:11:49.740 --> 01:11:50.919
wasn't just threatening but

2369
01:11:50.920 --> 01:11:52.759
apparently showed up kind

2370
01:11:52.760 --> 01:11:54.299
of planning, more or less, again,

2371
01:11:54.300 --> 01:11:55.619
even if he changed his mind to

2372
01:11:55.620 --> 01:11:56.968
murder him?

2373
01:11:56.969 --> 01:11:58.888
There's nothing more that I love

2374
01:11:58.889 --> 01:11:59.669
than criticism.

2375
01:11:59.670 --> 01:12:01.229
It's what I do as a constitutional

2376
01:12:01.230 --> 01:12:02.308
law professor all the time.

2377
01:12:02.309 --> 01:12:04.069
I love critique, I love criticism.

2378
01:12:04.070 --> 01:12:05.848
I want more disagreement, I want

2379
01:12:05.849 --> 01:12:07.069
conversation.

2380
01:12:07.070 --> 01:12:08.649
And I believe in passionate

2381
01:12:08.650 --> 01:12:10.569
disagreement and conversation.

2382
01:12:10.570 --> 01:12:12.429
So I have no problem

2383
01:12:12.430 --> 01:12:14.308
with criticizing Justice

2384
01:12:14.309 --> 01:12:15.729
Sotomayor, or criticizing Justice

2385
01:12:15.730 --> 01:12:16.949
Jackson, criticizing Justice

2386
01:12:16.950 --> 01:12:18.689
Kavanaugh, disagreeing with all of

2387
01:12:18.690 --> 01:12:19.489
these judgments.

2388
01:12:19.490 --> 01:12:21.049
I am concerned about something that

2389
01:12:21.050 --> 01:12:23.209
I think is different than

2390
01:12:23.210 --> 01:12:24.459
criticizing.

2391
01:12:24.460 --> 01:12:26.299
The opinions, which is I think

2392
01:12:26.300 --> 01:12:28.299
a lot of the rhetoric that comes

2393
01:12:28.300 --> 01:12:30.259
out of the MAGA movement

2394
01:12:30.260 --> 01:12:32.138
is not just,

2395
01:12:32.139 --> 01:12:33.859
I agree or I disagree with the

2396
01:12:33.860 --> 01:12:35.339
Supreme Court opinion and here is

2397
01:12:35.340 --> 01:12:37.359
why, but ratcheted up

2398
01:12:37.360 --> 01:12:39.319
to a level of there's evil

2399
01:12:39.320 --> 01:12:41.159
in the lands that needs to be

2400
01:12:41.160 --> 01:12:42.359
eradicated.

2401
01:12:42.360 --> 01:12:44.299
And I don't think enough is being

2402
01:12:44.300 --> 01:12:46.299
done to issue a strong

2403
01:12:46.300 --> 01:12:48.419
defense of we are

2404
01:12:48.420 --> 01:12:49.959
all in this together.

2405
01:12:49.960 --> 01:12:51.259
We can disagree.

2406
01:12:51.260 --> 01:12:52.879
It's good that we should disagree,

2407
01:12:52.880 --> 01:12:54.379
and it's good we have robust

2408
01:12:54.380 --> 01:12:56.218
disagreement, but we are all in

2409
01:12:56.219 --> 01:12:58.138
the project of trying to make this

2410
01:12:58.139 --> 01:13:00.138
country more, all of these judges

2411
01:13:00.139 --> 01:13:01.919
are trying to do their best and make

2412
01:13:01.920 --> 01:13:03.799
this county more just,

2413
01:13:03.800 --> 01:13:06.339
and we need a robust articulation

2414
01:13:06.340 --> 01:13:08.379
of those values, and I

2415
01:13:08.380 --> 01:13:09.819
fear that we're not getting them

2416
01:13:09.820 --> 01:13:11.379
from the administration.

2417
01:13:11.380 --> 01:13:12.359
This is not the way the

2418
01:13:12.360 --> 01:13:14.580
administration talks about judges,

2419
01:13:15.920 --> 01:13:18.249
and I think it is worrisome.

2420
01:13:18.250 --> 01:13:20.449
So no, criticism is good,

2421
01:13:20.450 --> 01:13:22.109
but some of this inflammatory

2422
01:13:22.110 --> 01:13:23.968
rhetoric, I don't think is good.

2423
01:13:25.000 --> 01:13:27.039
It is a little mystifying that Chief

2424
01:13:27.040 --> 01:13:28.518
Justice Roberts, who talks so much

2425
01:13:28.519 --> 01:13:29.759
about the legitimacy of the court,

2426
01:13:29.760 --> 01:13:30.979
who has talked in the past about

2427
01:13:30.980 --> 01:13:33.218
respect for the rule of law, would

2428
01:13:33.219 --> 01:13:35.479
allow such these monumental

2429
01:13:35.480 --> 01:13:36.859
decisions to come out with no

2430
01:13:36.860 --> 01:13:37.759
reasoning.

2431
01:13:37.760 --> 01:13:39.718
And part of it, I think, has got

2432
01:13:39.719 --> 01:13:41.119
to be the workload.

2433
01:13:41.120 --> 01:13:42.119
You know, this is summertime.

2434
01:13:42.120 --> 01:13:43.499
They're usually off, oh, I'm going

2435
01:13:43.500 --> 01:13:44.379
to Ireland.

2436
01:13:44.380 --> 01:13:45.659
And this is one of the few places

2437
01:13:45.660 --> 01:13:47.419
where justices can make some money.

2438
01:13:47.420 --> 01:13:49.558
They have a lot of rules about what

2439
01:13:49.559 --> 01:13:50.759
they're allowed to do when they're

2440
01:13:50.760 --> 01:13:52.039
off time. They're allowed to teach.

2441
01:13:52.040 --> 01:13:53.479
And they teach in some very nice

2442
01:13:53.480 --> 01:13:54.319
places.

2443
01:13:54.320 --> 01:13:56.138
And now they're busy trying to

2444
01:13:56.139 --> 01:13:57.199
crank these things out. And I know

2445
01:13:57.200 --> 01:13:59.619
it's hard to step away from

2446
01:13:59.620 --> 01:14:01.339
the cappuccino machine or whatever

2447
01:14:01.340 --> 01:14:03.539
it is and crank out

2448
01:14:03.540 --> 01:14:05.119
three sentences. But I think it's

2449
01:14:05.120 --> 01:14:06.120
probably worth it.

2450
01:14:07.160 --> 01:14:08.598
Before I turn to audience questions,

2451
01:14:08.599 --> 01:14:10.299
I just want to briefly, since we're

2452
01:14:10.300 --> 01:14:12.319
getting short on time, talk about

2453
01:14:12.320 --> 01:14:13.518
what I consider the two most

2454
01:14:13.519 --> 01:14:14.659
interesting justices right now in

2455
01:14:14.660 --> 01:14:16.919
the court, justices Barrett and

2456
01:14:16.920 --> 01:14:18.379
Jackson.

2457
01:14:18.380 --> 01:14:19.979
Justice Jackson writing some really

2458
01:14:19.980 --> 01:14:21.638
impassioned dissents, sometimes solo

2459
01:14:21.639 --> 01:14:22.549
dissents.

2460
01:14:22.550 --> 01:14:24.509
Kind of unusual for a rookie on the

2461
01:14:24.510 --> 01:14:25.768
court.

2462
01:14:25.769 --> 01:14:27.589
Justice Barrett, at one point in

2463
01:14:27.590 --> 01:14:29.369
the middle of the term, she was a,

2464
01:14:29.370 --> 01:14:31.268
you know, like a anti-Trump

2465
01:14:31.269 --> 01:14:33.149
enemy and now she's embraced,

2466
01:14:33.150 --> 01:14:34.369
you like, people have these

2467
01:14:34.370 --> 01:14:36.369
different views, but in the

2468
01:14:36.370 --> 01:14:37.829
case that Cary talked about, she

2469
01:14:37.830 --> 01:14:39.909
staked out a pretty far position

2470
01:14:39.910 --> 01:14:41.348
on discrimination against

2471
01:14:41.349 --> 01:14:42.768
transgender individuals.

2472
01:14:42.769 --> 01:14:44.649
So these justices are finding their

2473
01:14:44.650 --> 01:14:46.329
voice. I'm just wondering if any of

2474
01:14:46.330 --> 01:14:48.268
you wanna reflect on either or

2475
01:14:48.269 --> 01:14:49.569
both of them and what it tells us

2476
01:14:49.570 --> 01:14:50.640
about the direction of the court?

2477
01:14:55.180 --> 01:14:56.180
Sure.

2478
01:14:56.920 --> 01:14:58.638
I guess two things.

2479
01:14:58.639 --> 01:15:00.659
So I did want to just answer

2480
01:15:00.660 --> 01:15:01.919
back on the birthright citizenship

2481
01:15:01.920 --> 01:15:03.479
point, which is I think the reason

2482
01:15:03.480 --> 01:15:05.098
that people are turning to

2483
01:15:05.099 --> 01:15:07.199
originalist arguments with

2484
01:15:07.200 --> 01:15:09.319
the vehemence which they are,

2485
01:15:09.320 --> 01:15:10.919
is because that is what the court

2486
01:15:10.920 --> 01:15:12.159
will listen to.

2487
01:15:12.160 --> 01:15:14.098
That is the only language in which

2488
01:15:14.099 --> 01:15:15.279
you can make a constitutional

2489
01:15:15.280 --> 01:15:17.018
argument before the court.

2490
01:15:17.019 --> 01:15:18.718
And so I think it's instrumentalist

2491
01:15:18.719 --> 01:15:20.339
rather than functional, although it

2492
01:15:20.340 --> 01:15:21.839
may serve a functional purpose.

2493
01:15:21.840 --> 01:15:23.558
And the reason I think that's true

2494
01:15:23.559 --> 01:15:24.899
is also because I think there's.

2495
01:15:26.180 --> 01:15:28.299
Wild and rampant disagreement

2496
01:15:28.300 --> 01:15:30.179
on the

2497
01:15:30.180 --> 01:15:32.279
functional proposition, right, on

2498
01:15:32.280 --> 01:15:33.539
whether birthright citizenship is

2499
01:15:33.540 --> 01:15:34.759
good or bad.

2500
01:15:34.760 --> 01:15:36.239
I actually think it's great.

2501
01:15:36.240 --> 01:15:38.239
I think it what's made multiracial

2502
01:15:38.240 --> 01:15:40.058
democracy go in the United States.

2503
01:15:40.059 --> 01:15:41.539
And I think without it, we would see

2504
01:15:41.540 --> 01:15:43.479
problematic reifications

2505
01:15:43.480 --> 01:15:45.279
of very, very entrenched racial

2506
01:15:45.280 --> 01:15:46.079
hierarchy.

2507
01:15:46.080 --> 01:15:48.259
So I like it.

2508
01:15:48.260 --> 01:15:49.638
And I I think its good.

2509
01:15:49.639 --> 01:15:51.159
But I think that argument doesn't

2510
01:15:51.160 --> 01:15:52.638
get you anywhere with this court.

2511
01:15:52.639 --> 01:15:54.518
I think you actually just have to

2512
01:15:54.519 --> 01:15:55.779
make the arguments.

2513
01:15:55.780 --> 01:15:57.138
Originalist terms.

2514
01:15:57.139 --> 01:15:58.619
On the justices,

2515
01:16:00.760 --> 01:16:02.419
it's interesting watching Justice

2516
01:16:02.420 --> 01:16:05.159
Jackson forge

2517
01:16:05.160 --> 01:16:07.218
her own path and be very explicit

2518
01:16:07.219 --> 01:16:08.539
and vocal about forging her own

2519
01:16:08.540 --> 01:16:09.399
paths.

2520
01:16:09.400 --> 01:16:11.299
And the funny thing to me is how

2521
01:16:11.300 --> 01:16:12.859
much it reminds me.

2522
01:16:12.860 --> 01:16:15.058
Of Justice Thomas sort of earlier

2523
01:16:15.059 --> 01:16:17.098
in his career in

2524
01:16:17.099 --> 01:16:19.018
the sense that he staked

2525
01:16:19.019 --> 01:16:20.959
out positions that other

2526
01:16:20.960 --> 01:16:22.179
members of the court were not

2527
01:16:22.180 --> 01:16:23.279
willing to embrace.

2528
01:16:23.280 --> 01:16:25.159
He would then cite himself again

2529
01:16:25.160 --> 01:16:27.159
and again for years,

2530
01:16:27.160 --> 01:16:29.079
staking out these positions.

2531
01:16:29.080 --> 01:16:30.919
And over time, some

2532
01:16:30.920 --> 01:16:32.319
of these positions where he seemed

2533
01:16:32.320 --> 01:16:34.279
like he was alone on

2534
01:16:34.280 --> 01:16:36.239
the fringe have moved very

2535
01:16:36.240 --> 01:16:37.799
much to the center of where the

2536
01:16:37.800 --> 01:16:39.319
court is. And that's very much the

2537
01:16:39.320 --> 01:16:40.819
right of where I am.

2538
01:16:40.820 --> 01:16:42.439
But I think it's really interesting

2539
01:16:42.440 --> 01:16:43.440
to see her.

2540
01:16:44.340 --> 01:16:46.239
Look at that and learn from that,

2541
01:16:46.240 --> 01:16:47.939
that you can in fact sort of

2542
01:16:47.940 --> 01:16:49.879
manifest movement on the

2543
01:16:49.880 --> 01:16:51.018
court by articulating these

2544
01:16:51.019 --> 01:16:53.018
positions and by speaking to people

2545
01:16:53.019 --> 01:16:54.598
and that there's a persuasive

2546
01:16:54.599 --> 01:16:55.959
function that these opinions serve.

2547
01:16:55.960 --> 01:16:57.679
And I just find those parallels

2548
01:16:57.680 --> 01:16:58.680
really interesting.

2549
01:17:00.950 --> 01:17:03.468
I'll add just a tiny bit.

2550
01:17:03.469 --> 01:17:04.949
The two justices you've mentioned

2551
01:17:04.950 --> 01:17:06.888
seem on polar

2552
01:17:06.889 --> 01:17:08.849
opposites, not of the

2553
01:17:08.850 --> 01:17:10.689
political inclinations

2554
01:17:10.690 --> 01:17:12.489
of any case, not on the sort of

2555
01:17:12.490 --> 01:17:14.429
ideological outcomes, but on how

2556
01:17:14.430 --> 01:17:15.709
much they're willing to consider

2557
01:17:15.710 --> 01:17:17.429
context beyond the four corners of

2558
01:17:17.430 --> 01:17:18.649
the case itself.

2559
01:17:18.650 --> 01:17:20.929
Many of Justice Jackson's,

2560
01:17:20.930 --> 01:17:22.829
I think, rather impassioned

2561
01:17:22.830 --> 01:17:24.989
opinions, as Jennifer mentioned,

2562
01:17:24.990 --> 01:17:26.729
are sort of imploring the public to

2563
01:17:26.730 --> 01:17:28.729
realize what's at stake beyond.

2564
01:17:30.219 --> 01:17:31.638
Plaintiff and the defendant and the

2565
01:17:31.639 --> 01:17:32.899
V and the arguments in the middle,

2566
01:17:33.940 --> 01:17:35.718
in ways that sometimes reflect

2567
01:17:35.719 --> 01:17:37.779
Justice Sotomayor's inclinations,

2568
01:17:37.780 --> 01:17:38.959
but sometimes are very, very

2569
01:17:38.960 --> 01:17:41.138
different. A very real politic

2570
01:17:41.139 --> 01:17:43.079
kind of approach to judging.

2571
01:17:44.280 --> 01:17:46.119
And Justice Barrett seems to be

2572
01:17:46.120 --> 01:17:47.959
doing quite the opposite, sort of

2573
01:17:47.960 --> 01:17:49.839
staying very much

2574
01:17:49.840 --> 01:17:51.179
within the parameters of the case

2575
01:17:51.180 --> 01:17:53.079
and calling out a sometimes more

2576
01:17:53.080 --> 01:17:54.399
conservative majority, sometimes

2577
01:17:54.400 --> 01:17:56.138
less conservative majority when

2578
01:17:56.139 --> 01:17:58.179
they. Branch out beyond

2579
01:17:58.180 --> 01:17:59.599
what's involved in the four corners

2580
01:17:59.600 --> 01:18:01.239
of the case to decide broader issues

2581
01:18:01.240 --> 01:18:02.679
that she think don't belong there

2582
01:18:02.680 --> 01:18:03.699
because that's not what the case

2583
01:18:03.700 --> 01:18:05.659
presents That's also just a very

2584
01:18:05.660 --> 01:18:07.539
different model of judging and

2585
01:18:07.540 --> 01:18:08.899
I think it's it's interesting to

2586
01:18:08.900 --> 01:18:10.739
watch these two find their voices in

2587
01:18:10.740 --> 01:18:12.879
that respect I I think we're

2588
01:18:12.880 --> 01:18:14.239
the better for having that

2589
01:18:14.240 --> 01:18:16.558
disagreement fleshed out

2590
01:18:16.559 --> 01:18:18.279
in Reasons written opinions, which

2591
01:18:18.280 --> 01:18:19.319
is part of why I want to see more

2592
01:18:19.320 --> 01:18:20.320
reasoned written opinions

2593
01:18:24.309 --> 01:18:26.369
I guess I just say I have watched

2594
01:18:26.370 --> 01:18:28.329
with I've watched with

2595
01:18:28.330 --> 01:18:30.388
curiosity this attempt

2596
01:18:30.389 --> 01:18:32.229
Which I think is largely on

2597
01:18:32.230 --> 01:18:33.869
the part of the media to make

2598
01:18:33.870 --> 01:18:36.129
Justice Barrett into a

2599
01:18:36.130 --> 01:18:38.009
really Interesting figure

2600
01:18:38.010 --> 01:18:39.369
of in the middle and she could go

2601
01:18:39.370 --> 01:18:40.669
either way and she's not might not

2602
01:18:40.670 --> 01:18:42.609
be that conservative I really do

2603
01:18:42.610 --> 01:18:44.669
not think that is right at all

2604
01:18:44.670 --> 01:18:46.548
I wonder if gender has something

2605
01:18:46.549 --> 01:18:47.709
to do with that story or else the

2606
01:18:47.710 --> 01:18:49.048
media just loves the story that

2607
01:18:49.049 --> 01:18:50.509
there's a renegade Justice who may

2608
01:18:50.510 --> 01:18:51.468
be unpredictable.

2609
01:18:51.469 --> 01:18:52.789
I don't think she's that

2610
01:18:52.790 --> 01:18:54.638
unpredictable We came

2611
01:18:54.639 --> 01:18:56.179
up in the academy together.

2612
01:18:56.180 --> 01:18:57.718
I've been reading her writing for a

2613
01:18:57.719 --> 01:18:58.839
very long time.

2614
01:18:58.840 --> 01:19:02.218
I think she is a deeply committed,

2615
01:19:02.219 --> 01:19:04.279
conservative print, a lot of

2616
01:19:04.280 --> 01:19:05.599
embrace of principle.

2617
01:19:05.600 --> 01:19:07.839
I think, she believes in

2618
01:19:07.840 --> 01:19:11.218
a very originalism.

2619
01:19:11.219 --> 01:19:13.199
And if you, in

2620
01:19:13.200 --> 01:19:15.239
my areas are LGBT rights and repro

2621
01:19:15.240 --> 01:19:16.079
rights.

2622
01:19:16.080 --> 01:19:17.798
No one coming from that perspective

2623
01:19:17.799 --> 01:19:20.479
would look at her and think she,

2624
01:19:20.480 --> 01:19:21.480
you know.

2625
01:19:22.110 --> 01:19:24.129
A squish, as they, you know, I

2626
01:19:24.130 --> 01:19:25.929
don't think so, you know, and I

2627
01:19:25.930 --> 01:19:27.789
think this is a good, if you look at

2628
01:19:27.790 --> 01:19:29.109
the scrimmage decision that I talked

2629
01:19:29.110 --> 01:19:30.869
about, she writes a concurring

2630
01:19:30.870 --> 01:19:33.109
opinion in which she says,

2631
01:19:33.110 --> 01:19:34.989
no, you know, maybe we didn't need

2632
01:19:34.990 --> 01:19:36.509
to do it in this case, but I want us

2633
01:19:36.510 --> 01:19:38.349
to hold that there has been

2634
01:19:38.350 --> 01:19:40.449
no trans, no discrimination against

2635
01:19:40.450 --> 01:19:42.249
transgender people in this country

2636
01:19:42.250 --> 01:19:43.909
that would give rise to any

2637
01:19:43.910 --> 01:19:45.229
constitutional concern.

2638
01:19:45.230 --> 01:19:47.189
Let me say that again, transgender

2639
01:19:47.190 --> 01:19:49.169
people have not faced a history

2640
01:19:49.170 --> 01:19:51.638
of discrimination in this country.

2641
01:19:51.639 --> 01:19:53.459
That would merit taking

2642
01:19:53.460 --> 01:19:55.199
a closer look at laws that

2643
01:19:55.200 --> 01:19:56.999
discriminate against them.

2644
01:19:57.000 --> 01:19:58.699
And there were people after the oral

2645
01:19:58.700 --> 01:20:00.599
argument who were saying, oh,

2646
01:20:00.600 --> 01:20:01.558
Justice Barrett's gonna write the

2647
01:20:01.559 --> 01:20:03.018
majority and she's gonna say there's

2648
01:20:03.019 --> 01:20:04.159
extra heightened concern for

2649
01:20:04.160 --> 01:20:05.160
transgender people.

2650
01:20:06.760 --> 01:20:08.699
No, no,

2651
01:20:08.700 --> 01:20:10.899
so she has clarified for us,

2652
01:20:10.900 --> 01:20:12.959
no, no guys, I would have gone

2653
01:20:12.960 --> 01:20:15.399
way further than the majority to

2654
01:20:15.400 --> 01:20:18.178
say that these people

2655
01:20:18.179 --> 01:20:20.739
do not merit concern.

2656
01:20:20.740 --> 01:20:22.798
From the courts under the 14th

2657
01:20:22.799 --> 01:20:24.879
Amendment or special

2658
01:20:24.880 --> 01:20:26.099
concern.

2659
01:20:26.100 --> 01:20:28.058
So I largely think this is a media

2660
01:20:28.059 --> 01:20:29.779
creation that she is some kind of

2661
01:20:29.780 --> 01:20:30.959
unpredictable justice.

2662
01:20:30.960 --> 01:20:32.479
But there's been one or two cases

2663
01:20:32.480 --> 01:20:33.638
where she hasn't been to the

2664
01:20:33.639 --> 01:20:34.479
furthest right.

2665
01:20:34.480 --> 01:20:36.479
But I just don't

2666
01:20:36.480 --> 01:20:39.009
think this.

2667
01:20:39.010 --> 01:20:40.529
In a couple of Trump democracy

2668
01:20:40.530 --> 01:20:42.449
cases, she took a different view, in

2669
01:20:42.450 --> 01:20:43.949
both the case involving

2670
01:20:44.990 --> 01:20:46.229
disqualification under the 14th

2671
01:20:46.230 --> 01:20:48.308
Amendment, as well as

2672
01:20:48.309 --> 01:20:50.069
a hair's difference in the immunity

2673
01:20:50.070 --> 01:20:50.689
case.

2674
01:20:50.690 --> 01:20:53.009
And maybe we'll get so

2675
01:20:53.010 --> 01:20:55.209
far off the right end that

2676
01:20:55.210 --> 01:20:57.229
she'll not always go

2677
01:20:57.230 --> 01:20:59.189
over, but that's where I think the

2678
01:20:59.190 --> 01:21:00.308
reality lies.

2679
01:21:00.309 --> 01:21:01.909
Not that she is some sort of

2680
01:21:01.910 --> 01:21:03.388
interesting moderate, but I think

2681
01:21:03.389 --> 01:21:05.109
that does a disservice to her.

2682
01:21:05.110 --> 01:21:07.129
I think she is committed,

2683
01:21:07.130 --> 01:21:08.089
deeply committed.

2684
01:21:08.090 --> 01:21:09.768
She's thought about it a long time.

2685
01:21:09.769 --> 01:21:11.548
She has very strong views.

2686
01:21:11.549 --> 01:21:13.509
I don't think this

2687
01:21:13.510 --> 01:21:15.369
portrayal is going to

2688
01:21:15.370 --> 01:21:16.899
bear out over.

2689
01:21:16.900 --> 01:21:18.939
I think it also shows, although we

2690
01:21:18.940 --> 01:21:20.879
paint the court as six

2691
01:21:20.880 --> 01:21:22.459
to three, and it really is six to

2692
01:21:22.460 --> 01:21:23.659
three conservatives against

2693
01:21:23.660 --> 01:21:25.239
liberals, Republican and point of

2694
01:21:25.240 --> 01:21:26.419
justice versus Democratic point of

2695
01:21:26.420 --> 01:21:28.279
justice on particular issues, at

2696
01:21:28.280 --> 01:21:29.079
least from the point of view of a

2697
01:21:29.080 --> 01:21:31.099
lawyer if you're writing a brief.

2698
01:21:31.100 --> 01:21:32.239
Depending on what the brief is,

2699
01:21:32.240 --> 01:21:33.298
you're not looking for Barrett's

2700
01:21:33.299 --> 01:21:35.199
vote in a case involving

2701
01:21:35.200 --> 01:21:36.759
an LGBT, you might be looking for

2702
01:21:36.760 --> 01:21:38.558
Gorsuch's vote, whereas if it's a

2703
01:21:38.559 --> 01:21:39.959
democracy issue, I've given up on

2704
01:21:39.960 --> 01:21:41.379
Gorsich and I'm writing for Barret,

2705
01:21:41.380 --> 01:21:42.999
so it really depends on.

2706
01:21:43.000 --> 01:21:45.599
If we look at the

2707
01:21:45.600 --> 01:21:48.199
one immigration merits decision,

2708
01:21:48.200 --> 01:21:49.599
which we don't want to talk about, I

2709
01:21:49.600 --> 01:21:50.599
promise.

2710
01:21:50.600 --> 01:21:52.839
But it is 5-4 with Gorsuch

2711
01:21:52.840 --> 01:21:54.659
aligning with the liberal justices.

2712
01:21:54.660 --> 01:21:56.039
And so I think that is a

2713
01:21:56.040 --> 01:21:57.259
configuration that we've seen in a

2714
01:21:57.260 --> 01:21:58.899
number of cases

2715
01:22:00.059 --> 01:22:02.218
and makes him interesting in

2716
01:22:02.219 --> 01:22:04.339
some cases in some contexts.

2717
01:22:04.340 --> 01:22:06.218
And I agree that I think,

2718
01:22:06.219 --> 01:22:07.839
that's the way the story needs to be

2719
01:22:07.840 --> 01:22:09.939
told, not the story of a the

2720
01:22:09.940 --> 01:22:11.399
renegade justice who's

2721
01:22:11.400 --> 01:22:13.399
fascinatingly, you know, difficult

2722
01:22:13.400 --> 01:22:14.089
to read.

2723
01:22:14.090 --> 01:22:15.548
I'd just say Gorsuch's federal

2724
01:22:15.549 --> 01:22:17.489
Indian law jurisprudence is very

2725
01:22:17.490 --> 01:22:19.529
interesting and not what you

2726
01:22:19.530 --> 01:22:21.289
might expect from coming from him.

2727
01:22:21.290 --> 01:22:23.029
So I could make a case that he maybe

2728
01:22:23.030 --> 01:22:23.909
is more interesting.

2729
01:22:23.910 --> 01:22:24.179
So.

2730
01:22:24.180 --> 01:22:25.999
So Cary, I think,

2731
01:22:26.000 --> 01:22:27.919
I entirely agree with, because I

2732
01:22:27.920 --> 01:22:29.919
think she has identified, well,

2733
01:22:29.920 --> 01:22:31.919
almost entirely, identified two

2734
01:22:31.920 --> 01:22:34.039
very fundamental features of

2735
01:22:34.040 --> 01:22:37.419
human nature. And you always have to

2736
01:22:37.420 --> 01:22:39.399
figure what the human nature

2737
01:22:39.400 --> 01:22:41.679
is. One is wishful thinking.

2738
01:22:41.680 --> 01:22:43.499
And the other is an

2739
01:22:43.500 --> 01:22:45.239
exaggerated sense of one's ability

2740
01:22:45.240 --> 01:22:47.399
to manipulate people,

2741
01:22:47.400 --> 01:22:49.239
especially if one is sort of in

2742
01:22:49.240 --> 01:22:50.999
the elite media.

2743
01:22:51.000 --> 01:22:52.518
So I do think there are some people

2744
01:22:52.519 --> 01:22:54.439
who sort of want Barrett

2745
01:22:54.440 --> 01:22:56.459
to be a liberal or

2746
01:22:56.460 --> 01:22:58.419
a moderate or at least a

2747
01:22:58.420 --> 01:23:00.359
liberal conservative, something like

2748
01:23:00.360 --> 01:23:02.058
that. Maybe like Justice O'Connor,

2749
01:23:02.059 --> 01:23:04.518
who also for that

2750
01:23:04.519 --> 01:23:07.218
was somewhat overstated.

2751
01:23:07.219 --> 01:23:08.419
And I think there are also some

2752
01:23:08.420 --> 01:23:10.779
people who figure if we only kind of

2753
01:23:10.780 --> 01:23:12.339
frame her this way, maybe she'll

2754
01:23:12.340 --> 01:23:14.039
come around to our way of thinking.

2755
01:23:14.040 --> 01:23:16.079
Maybe she'll want our reinforcement.

2756
01:23:16.080 --> 01:23:17.459
I am pretty sure that Justice

2757
01:23:17.460 --> 01:23:19.099
Barrett does not want anybody's

2758
01:23:19.100 --> 01:23:20.939
reinforcement. So, I

2759
01:23:20.940 --> 01:23:23.380
do think that the

2760
01:23:24.440 --> 01:23:26.298
This has been very much

2761
01:23:26.299 --> 01:23:27.479
exaggerated by some people.

2762
01:23:27.480 --> 01:23:29.319
I agree with Rick though that

2763
01:23:29.320 --> 01:23:31.459
in fact there are some

2764
01:23:31.460 --> 01:23:33.279
things that lawyers have to keep in

2765
01:23:33.280 --> 01:23:35.159
mind on which Roberts and

2766
01:23:35.160 --> 01:23:37.218
Barrett and Kavanaugh

2767
01:23:37.219 --> 01:23:39.319
tend to be closer to the center

2768
01:23:39.320 --> 01:23:41.739
than Alito,

2769
01:23:41.740 --> 01:23:42.939
Thomas and Gorsuch.

2770
01:23:42.940 --> 01:23:44.718
Sometimes it flips around some, but

2771
01:23:44.719 --> 01:23:46.619
there is some set of such things if

2772
01:23:46.620 --> 01:23:47.839
you look at the way things have

2773
01:23:47.840 --> 01:23:49.939
voted that have come down there

2774
01:23:49.940 --> 01:23:52.329
are such. So she's not...

2775
01:23:52.330 --> 01:23:54.069
She's not the same kind of

2776
01:23:54.070 --> 01:23:55.768
conservative as Alito and Thomas and

2777
01:23:55.769 --> 01:23:57.388
Gorsuch. Maybe a titch less, but

2778
01:23:57.389 --> 01:23:58.888
only a tich. It really is a

2779
01:23:58.889 --> 01:24:00.589
difference between the very

2780
01:24:00.590 --> 01:24:02.409
conservative and the

2781
01:24:02.410 --> 01:24:04.149
highly quite conservative, let's

2782
01:24:04.150 --> 01:24:05.289
say.

2783
01:24:05.290 --> 01:24:07.069
We have time for two or three

2784
01:24:07.070 --> 01:24:08.569
questions and I know they're going

2785
01:24:08.570 --> 01:24:10.409
around with microphones and let me

2786
01:24:10.410 --> 01:24:12.369
implore you please keep it brief and

2787
01:24:12.370 --> 01:24:13.370
please keep a question.

2788
01:24:16.730 --> 01:24:18.289
Hello, thank you so much for being

2789
01:24:18.290 --> 01:24:20.349
here. I've learned so much.

2790
01:24:20.350 --> 01:24:22.169
I'm curious, what is the

2791
01:24:22.170 --> 01:24:24.509
emergency in the emergency

2792
01:24:24.510 --> 01:24:25.510
docket?

2793
01:24:28.510 --> 01:24:30.209
It's a magnificent question.

2794
01:24:30.210 --> 01:24:32.329
So sometimes there is

2795
01:24:32.330 --> 01:24:33.669
none and that makes it weird.

2796
01:24:35.710 --> 01:24:37.949
The emergency docket cases

2797
01:24:37.950 --> 01:24:40.509
all come up when

2798
01:24:40.510 --> 01:24:42.409
a party, in the cases we've

2799
01:24:42.410 --> 01:24:43.629
been talking about, invariably the

2800
01:24:43.630 --> 01:24:45.548
government, says, I

2801
01:24:45.549 --> 01:24:47.149
wanna skip the normal years-long

2802
01:24:47.150 --> 01:24:48.569
process that Cary mentioned.

2803
01:24:48.570 --> 01:24:50.529
I wanna go, the trial

2804
01:24:50.530 --> 01:24:51.789
court has said something or an

2805
01:24:51.790 --> 01:24:53.149
appellate court has something and

2806
01:24:53.150 --> 01:24:55.029
rather than wait for that to filter

2807
01:24:55.030 --> 01:24:56.789
up through the process, Supreme

2808
01:24:56.790 --> 01:24:58.689
Court press pause right now.

2809
01:24:58.690 --> 01:24:59.690
Right now, right now.

2810
01:25:02.080 --> 01:25:04.018
Part of my concern with

2811
01:25:04.019 --> 01:25:05.638
this whole procedure, and they have

2812
01:25:05.639 --> 01:25:07.879
the power to do that.

2813
01:25:07.880 --> 01:25:08.859
Part of my concerns with this

2814
01:25:08.860 --> 01:25:10.899
procedure is that decision

2815
01:25:10.900 --> 01:25:12.859
has been explained to

2816
01:25:12.860 --> 01:25:14.779
us as a decision that depends

2817
01:25:14.780 --> 01:25:16.718
a little bit on the eventual merits

2818
01:25:16.719 --> 01:25:17.959
of the case. How do we think it's

2819
01:25:17.960 --> 01:25:19.218
gonna come out when we finally get

2820
01:25:19.219 --> 01:25:20.399
there years from now?

2821
01:25:20.400 --> 01:25:22.479
But also, it's supposed

2822
01:25:22.480 --> 01:25:24.718
to involve what are the

2823
01:25:24.719 --> 01:25:26.679
equities involved in the

2824
01:25:26.680 --> 01:25:27.939
various parties in the case?

2825
01:25:27.940 --> 01:25:29.499
Who's gonna get hurt most in the

2826
01:25:29.500 --> 01:25:31.119
meantime? What does the status quo

2827
01:25:31.120 --> 01:25:31.929
look like?

2828
01:25:31.930 --> 01:25:33.609
If we're gonna put a break on this,

2829
01:25:34.610 --> 01:25:36.468
our strong presumption should

2830
01:25:36.469 --> 01:25:39.169
be, don't put a brake on this.

2831
01:25:39.170 --> 01:25:40.929
And if we do put a brakes on this

2832
01:25:40.930 --> 01:25:42.589
we're going to have to consider how

2833
01:25:42.590 --> 01:25:43.909
putting a brake this would hurt the

2834
01:25:43.910 --> 01:25:45.649
various people involved.

2835
01:25:45.650 --> 01:25:47.069
And part of the critique of the

2836
01:25:47.070 --> 01:25:48.929
court's use of the emergency docket

2837
01:25:48.930 --> 01:25:50.589
of these emergency requests to say,

2838
01:25:50.590 --> 01:25:52.249
please press pause right now before

2839
01:25:52.250 --> 01:25:53.349
we work through the rest of the

2840
01:25:53.350 --> 01:25:55.268
process, is it sure

2841
01:25:55.269 --> 01:25:57.209
seems from the outcomes and from

2842
01:25:57.210 --> 01:25:59.048
the occasional sentences we get of

2843
01:25:59.049 --> 01:26:01.138
explanation, the dribbles.

2844
01:26:01.139 --> 01:26:03.218
That they're using some other

2845
01:26:03.219 --> 01:26:05.079
metric now to decide when

2846
01:26:05.080 --> 01:26:06.518
to press pause and when not to press

2847
01:26:06.519 --> 01:26:08.199
pause, and they haven't explained

2848
01:26:08.200 --> 01:26:09.759
what that metric is.

2849
01:26:09.760 --> 01:26:11.638
It seems to be dependent a lot

2850
01:26:11.639 --> 01:26:13.479
more on their knee-jerk

2851
01:26:13.480 --> 01:26:15.218
reaction to the merits of a case,

2852
01:26:15.219 --> 01:26:17.218
which is something that they've said

2853
01:26:17.219 --> 01:26:18.360
they're not doing.

2854
01:26:19.420 --> 01:26:21.298
But it's awfully difficult to

2855
01:26:21.299 --> 01:26:23.379
reconcile that with what they

2856
01:26:23.380 --> 01:26:24.298
do seem to be doing.

2857
01:26:24.299 --> 01:26:25.558
And it's real difficult to fit this

2858
01:26:25.559 --> 01:26:26.579
into what they've said is the

2859
01:26:26.580 --> 01:26:27.819
traditional test.

2860
01:26:27.820 --> 01:26:29.638
I think the thing that I would

2861
01:26:29.639 --> 01:26:31.218
add to this is I think one of the

2862
01:26:31.219 --> 01:26:33.379
things Eugene had alluded earlier

2863
01:26:33.380 --> 01:26:35.279
to the kind of historically what

2864
01:26:35.280 --> 01:26:36.638
this looked like and the fact that

2865
01:26:36.639 --> 01:26:38.518
opinions were not usually issued

2866
01:26:38.519 --> 01:26:39.619
when things were in the emergency

2867
01:26:39.620 --> 01:26:40.999
posture. A lot of those cases were

2868
01:26:41.000 --> 01:26:42.679
death penalty cases, right?

2869
01:26:42.680 --> 01:26:44.239
Where somebody was about to be

2870
01:26:44.240 --> 01:26:46.739
executed, really was an emergency,

2871
01:26:46.740 --> 01:26:48.259
and the Supreme Court was being

2872
01:26:48.260 --> 01:26:50.298
asked to sort of weigh in on

2873
01:26:50.299 --> 01:26:52.518
whether that could proceed or not.

2874
01:26:52.519 --> 01:26:54.379
And so that's where a lot

2875
01:26:54.380 --> 01:26:56.419
of the emergency docket action

2876
01:26:56.420 --> 01:26:57.558
has happened in the past, and what

2877
01:26:57.559 --> 01:26:58.798
we've seen is sort of an expansion

2878
01:26:58.799 --> 01:27:01.268
of what it's doing.

2879
01:27:01.269 --> 01:27:03.089
So I think if the conservatives

2880
01:27:03.090 --> 01:27:04.909
on the court were here, I think what

2881
01:27:04.910 --> 01:27:06.949
they would say is

2882
01:27:06.950 --> 01:27:09.329
there are what?

2883
01:27:09.330 --> 01:27:11.268
I don't know, 500,000 some

2884
01:27:11.269 --> 01:27:12.570
number of district court judges.

2885
01:27:13.690 --> 01:27:15.689
One of 500 district

2886
01:27:15.690 --> 01:27:17.569
court has issued

2887
01:27:17.570 --> 01:27:19.849
an emergency order,

2888
01:27:19.850 --> 01:27:21.609
a temporary restraining order very

2889
01:27:21.610 --> 01:27:23.048
often, sometimes a preliminary

2890
01:27:23.049 --> 01:27:25.409
injunction, that

2891
01:27:25.410 --> 01:27:27.548
blocks a decision

2892
01:27:27.549 --> 01:27:29.888
of national importance by

2893
01:27:29.889 --> 01:27:31.269
the one precedent.

2894
01:27:34.320 --> 01:27:36.239
That's not something that we

2895
01:27:36.240 --> 01:27:38.239
would generally want to see

2896
01:27:38.240 --> 01:27:39.558
happen.

2897
01:27:39.559 --> 01:27:41.619
And that is the

2898
01:27:41.620 --> 01:27:43.399
emergency. Now, you may disagree.

2899
01:27:43.400 --> 01:27:45.739
You might say, it's actually fine.

2900
01:27:45.740 --> 01:27:47.798
We're actually better off having the

2901
01:27:47.799 --> 01:27:50.239
errors from these decisions

2902
01:27:50.240 --> 01:27:51.699
by district judges, if there are

2903
01:27:51.700 --> 01:27:52.499
errors, because there are always

2904
01:27:52.500 --> 01:27:53.919
going to be some errors, versus

2905
01:27:53.920 --> 01:27:54.839
errors by the president.

2906
01:27:54.840 --> 01:27:56.319
Or you might say and I appreciate

2907
01:27:56.320 --> 01:27:58.659
your points that it may be

2908
01:27:58.660 --> 01:28:00.539
important to explain it in some

2909
01:28:00.540 --> 01:28:01.999
more detail.

2910
01:28:02.000 --> 01:28:03.819
But if you really want

2911
01:28:03.820 --> 01:28:05.459
to know what they think, I think

2912
01:28:05.460 --> 01:28:06.659
that's it.

2913
01:28:06.660 --> 01:28:08.599
I think their view is

2914
01:28:08.600 --> 01:28:10.579
that we as the Supreme Court at some

2915
01:28:10.580 --> 01:28:11.979
point may need to say no to the

2916
01:28:11.980 --> 01:28:13.239
president. That's one branch of

2917
01:28:13.240 --> 01:28:14.419
government saying no to another

2918
01:28:14.420 --> 01:28:15.558
branch of the government.

2919
01:28:15.559 --> 01:28:17.619
But if we've got an ostensibly

2920
01:28:17.620 --> 01:28:19.558
emergency temporary decision

2921
01:28:19.559 --> 01:28:21.379
that actually does interfere

2922
01:28:21.380 --> 01:28:23.119
with a decision of national

2923
01:28:23.120 --> 01:28:25.079
importance by the elected

2924
01:28:25.080 --> 01:28:26.939
president, that's not

2925
01:28:26.940 --> 01:28:28.819
something that we want to see go

2926
01:28:28.820 --> 01:28:29.820
into force.

2927
01:28:31.830 --> 01:28:34.069
From one district judge of

2928
01:28:34.070 --> 01:28:35.669
500. That's, I think, their position

2929
01:28:35.670 --> 01:28:36.929
may be wrong, but I think that's

2930
01:28:36.930 --> 01:28:37.388
their position.

2931
01:28:37.389 --> 01:28:39.229
And I actually think that

2932
01:28:39.230 --> 01:28:41.249
Eugene articulates what they would

2933
01:28:41.250 --> 01:28:43.268
say very well.

2934
01:28:43.269 --> 01:28:45.048
It's just that they've told us

2935
01:28:45.049 --> 01:28:46.509
they're using a different decision

2936
01:28:46.510 --> 01:28:48.029
metric than that.

2937
01:28:48.030 --> 01:28:49.968
They haven't said that.

2938
01:28:49.969 --> 01:28:51.689
That's different.

2939
01:28:51.690 --> 01:28:54.369
And that, by the way, prioritizes

2940
01:28:54.370 --> 01:28:56.069
presidential decisions on items of

2941
01:28:56.070 --> 01:28:57.709
national importance when they are

2942
01:28:57.710 --> 01:28:58.710
irreparable. Thanks for watching!

2943
01:29:00.490 --> 01:29:02.229
And what the court's supposed to be

2944
01:29:02.230 --> 01:29:04.169
doing is gaging, so if

2945
01:29:04.170 --> 01:29:05.609
this thing happens over the next

2946
01:29:05.610 --> 01:29:06.610
couple months,

2947
01:29:07.510 --> 01:29:09.529
is there somebody involved who can

2948
01:29:09.530 --> 01:29:11.589
never get back what is taken away?

2949
01:29:11.590 --> 01:29:13.388
Maybe that's the president, maybe

2950
01:29:13.389 --> 01:29:14.808
that's a person who's rendered to

2951
01:29:14.809 --> 01:29:16.489
South Sudan, maybe that the

2952
01:29:16.490 --> 01:29:18.169
education department which can never

2953
01:29:18.170 --> 01:29:20.489
exist again once it's gone,

2954
01:29:20.490 --> 01:29:21.629
right? You can't hire those people

2955
01:29:21.630 --> 01:29:23.329
back, they'll have different jobs.

2956
01:29:23.330 --> 01:29:25.409
So the standard was, we

2957
01:29:25.410 --> 01:29:27.768
are told that the standard is

2958
01:29:27.769 --> 01:29:29.669
seek out the irreparable harm and

2959
01:29:29.670 --> 01:29:30.909
make sure that plays a role.

2960
01:29:30.910 --> 01:29:32.789
And I think Eugene's right that

2961
01:29:32.790 --> 01:29:34.669
the court has now decided

2962
01:29:34.670 --> 01:29:36.749
that any time there is an

2963
01:29:36.750 --> 01:29:38.209
interference with something that

2964
01:29:38.210 --> 01:29:40.249
they deem of presidential national

2965
01:29:40.250 --> 01:29:42.089
importance, that is the

2966
01:29:42.090 --> 01:29:43.449
irreparable harm.

2967
01:29:43.450 --> 01:29:45.329
And that's awfully tough to

2968
01:29:45.330 --> 01:29:46.709
square with the families of the

2969
01:29:46.710 --> 01:29:48.249
folks going to South Sudan who will

2970
01:29:48.250 --> 01:29:49.250
never come back.

2971
01:29:50.240 --> 01:29:51.759
For people who are interested in

2972
01:29:51.760 --> 01:29:52.959
learning more about this, I'll point

2973
01:29:52.960 --> 01:29:54.859
you to a book by a friend of ours,

2974
01:29:54.860 --> 01:29:56.058
Steve Vladeck, called The Shadow

2975
01:29:56.059 --> 01:29:56.959
Docket.

2976
01:29:56.960 --> 01:29:58.138
It really, it's not called the

2977
01:29:58.139 --> 01:29:59.399
shadow, the Supreme Court doesn't

2978
01:29:59.400 --> 01:30:00.280
call it the shadow docket, it

2979
01:30:00.281 --> 01:30:01.138
doesn't call it The Emergency

2980
01:30:01.139 --> 01:30:03.279
Docket, these are just motions that

2981
01:30:03.280 --> 01:30:04.819
are made to the court and anyone can

2982
01:30:04.820 --> 01:30:06.899
make a motion and motion get denied.

2983
01:30:06.900 --> 01:30:07.999
They get assigned a different kind

2984
01:30:08.000 --> 01:30:10.119
of number, but because

2985
01:30:10.120 --> 01:30:12.319
it's happening so often, now the

2986
01:30:12.320 --> 01:30:13.989
public's paying attention to it.

2987
01:30:13.990 --> 01:30:15.449
And Steve would probably want you to

2988
01:30:15.450 --> 01:30:17.109
know that Will Bode was actually the

2989
01:30:17.110 --> 01:30:18.649
person who originated the term

2990
01:30:18.650 --> 01:30:20.808
Shadow Docket, which he then used as

2991
01:30:20.809 --> 01:30:21.619
the title of his book.

2992
01:30:21.620 --> 01:30:22.839
She gets a quarter every time

2993
01:30:22.840 --> 01:30:23.479
somebody does.

2994
01:30:23.480 --> 01:30:24.369
Oh

2995
01:30:24.370 --> 01:30:26.869
He's been overshadowed.

2996
01:30:26.870 --> 01:30:27.930
Okay, we'll take another question.

2997
01:30:46.210 --> 01:30:48.329
I was wondering if

2998
01:30:48.330 --> 01:30:52.189
you could tell

2999
01:30:52.190 --> 01:30:54.129
us what your opinion is on

3000
01:30:54.130 --> 01:30:56.069
how much the Supreme

3001
01:30:56.070 --> 01:30:57.989
Court listens to

3002
01:30:57.990 --> 01:30:59.729
public opinion.

3003
01:30:59.730 --> 01:31:01.430
I've gotten things saying,

3004
01:31:02.570 --> 01:31:04.069
sign a petition, we'll send it to

3005
01:31:04.070 --> 01:31:05.888
the court. And I'm like,

3006
01:31:05.889 --> 01:31:07.729
they're not going to listen to us.

3007
01:31:07.730 --> 01:31:09.129
But I hope I'm wrong.

3008
01:31:09.130 --> 01:31:10.409
Maybe I should sign those things.

3009
01:31:10.410 --> 01:31:11.410
I don't know.

3010
01:31:12.200 --> 01:31:13.599
Well, this is among one of the most

3011
01:31:13.600 --> 01:31:15.298
debated questions in constitutional

3012
01:31:15.299 --> 01:31:17.099
law. So who wants to give a 30

3013
01:31:17.100 --> 01:31:18.100
second response?

3014
01:31:19.760 --> 01:31:21.479
Oh, no, that is so unfair.

3015
01:31:23.000 --> 01:31:25.479
Yes, that's a very deep question.

3016
01:31:25.480 --> 01:31:29.699
My mind is racing to think of how

3017
01:31:29.700 --> 01:31:31.059
not to spend 10 hours.

3018
01:31:34.680 --> 01:31:36.879
So I'd be interested

3019
01:31:36.880 --> 01:31:38.939
to hear Eugene's take on this,

3020
01:31:38.940 --> 01:31:41.018
but I'll just talk about

3021
01:31:41.019 --> 01:31:43.279
that I don't think is an eternal.

3022
01:31:43.280 --> 01:31:44.679
I don't think there is an internal

3023
01:31:44.680 --> 01:31:46.899
answer. The court is always

3024
01:31:46.900 --> 01:31:48.718
this measure of, I

3025
01:31:48.719 --> 01:31:50.558
actually think That's something

3026
01:31:50.559 --> 01:31:51.939
that's historically contingent and

3027
01:31:51.940 --> 01:31:52.979
changes over time.

3028
01:31:52.980 --> 01:31:54.399
So I guess my answer will be about

3029
01:31:54.400 --> 01:31:55.759
this court.

3030
01:31:55.760 --> 01:31:57.718
I would say the

3031
01:31:57.719 --> 01:31:59.959
views of the public at large,

3032
01:32:02.400 --> 01:32:04.798
negligible to no influence

3033
01:32:04.799 --> 01:32:07.058
on what the court is thinking.

3034
01:32:07.059 --> 01:32:09.199
So I think you, oh, 100%

3035
01:32:09.200 --> 01:32:10.798
please get involved and read those

3036
01:32:10.799 --> 01:32:12.039
emails and do whatever you can.

3037
01:32:12.040 --> 01:32:13.419
But a petition to the court?

3038
01:32:13.420 --> 01:32:14.199
Probably not.

3039
01:32:14.200 --> 01:32:15.859
There are other ways for you to

3040
01:32:15.860 --> 01:32:16.759
spend your time.

3041
01:32:16.760 --> 01:32:17.939
I'm a constitutional law professor

3042
01:32:17.940 --> 01:32:19.539
and I'm telling you, that's not.

3043
01:32:19.540 --> 01:32:21.459
The way to to do that even

3044
01:32:21.460 --> 01:32:23.119
though I love even though I believe

3045
01:32:23.120 --> 01:32:24.279
we the people and we own the

3046
01:32:24.280 --> 01:32:25.319
constitution and we are the

3047
01:32:25.320 --> 01:32:26.619
interpreters the kind and all of

3048
01:32:26.620 --> 01:32:28.119
this but that but they're not

3049
01:32:28.120 --> 01:32:30.279
listening to that the witches I

3050
01:32:30.280 --> 01:32:32.339
I actually don't think it's

3051
01:32:32.340 --> 01:32:34.298
entirely true that they're um

3052
01:32:34.299 --> 01:32:36.119
monks sealed off

3053
01:32:36.120 --> 01:32:38.399
I think there is a much smaller

3054
01:32:38.400 --> 01:32:40.218
more elite group of

3055
01:32:40.219 --> 01:32:42.319
people who they who they do who

3056
01:32:42.320 --> 01:32:44.018
they are interested who do they do

3057
01:32:44.019 --> 01:32:46.159
talk to who they whose views

3058
01:32:46.160 --> 01:32:48.079
matter to them I

3059
01:32:48.080 --> 01:32:49.679
think that's about where we are

3060
01:32:49.680 --> 01:32:50.798
right now.

3061
01:32:50.799 --> 01:32:52.159
I'm guessing you're not in that

3062
01:32:52.160 --> 01:32:54.419
group. But if you are, please,

3063
01:32:54.420 --> 01:32:56.058
go to D.C.

3064
01:32:56.059 --> 01:32:57.059
Chat away.

3065
01:32:58.620 --> 01:33:00.539
But, you know, it's really

3066
01:33:00.540 --> 01:33:01.759
interesting.

3067
01:33:01.760 --> 01:33:02.819
There are so many things to say.

3068
01:33:02.820 --> 01:33:05.099
I guess I would say it's

3069
01:33:05.100 --> 01:33:06.279
such a deep and interesting

3070
01:33:06.280 --> 01:33:07.279
question.

3071
01:33:07.280 --> 01:33:09.899
And when you think historically,

3072
01:33:09.900 --> 01:33:11.879
like one of the things is that the

3073
01:33:11.880 --> 01:33:13.979
same-sex marriage decision came in

3074
01:33:13.980 --> 01:33:15.798
2015, and lots of

3075
01:33:15.799 --> 01:33:17.089
political scientists would tell you,

3076
01:33:17.090 --> 01:33:18.929
That came right at

3077
01:33:18.930 --> 01:33:20.529
the time the majority of Americans

3078
01:33:20.530 --> 01:33:21.869
started to believe that same-sex

3079
01:33:21.870 --> 01:33:23.689
marriage was a constitutional right.

3080
01:33:23.690 --> 01:33:25.349
That's not a coincidence.

3081
01:33:25.350 --> 01:33:27.449
So there is social movements

3082
01:33:27.450 --> 01:33:29.308
and social change.

3083
01:33:29.309 --> 01:33:31.489
The judges grow up in the culture.

3084
01:33:31.490 --> 01:33:32.689
They get to the court.

3085
01:33:32.690 --> 01:33:34.048
They are influenced by the thinking

3086
01:33:34.049 --> 01:33:35.048
of the time.

3087
01:33:35.049 --> 01:33:37.109
So in a broad sense,

3088
01:33:37.110 --> 01:33:38.509
yes, they are people.

3089
01:33:38.510 --> 01:33:39.689
They are sculpted by all this.

3090
01:33:39.690 --> 01:33:41.069
In the more immediate sense that

3091
01:33:41.070 --> 01:33:42.430
that email is getting at, no, I

3092
01:33:42.431 --> 01:33:43.431
don't think so.

3093
01:33:44.900 --> 01:33:46.840
We have time for one final question.

3094
01:33:49.250 --> 01:33:51.169
I don't that's whoever the

3095
01:33:51.170 --> 01:33:51.949
people pick out there.

3096
01:33:51.950 --> 01:33:52.950
I'm sorry

3097
01:33:53.200 --> 01:33:54.779
Yes, you can use the mic once it's

3098
01:33:54.780 --> 01:33:55.780
brought to you.

3099
01:34:04.710 --> 01:34:06.709
I had a question about what you

3100
01:34:06.710 --> 01:34:09.369
said about birthright citizenship.

3101
01:34:09.370 --> 01:34:11.429
Since the Supreme Court already has

3102
01:34:11.430 --> 01:34:13.430
a precedent, young Kim Ark,

3103
01:34:14.990 --> 01:34:16.909
that the 14th Amendment is

3104
01:34:16.910 --> 01:34:19.349
already very clear that

3105
01:34:19.350 --> 01:34:21.229
somebody born and subject to the

3106
01:34:21.230 --> 01:34:23.229
jurisdiction of the US

3107
01:34:23.230 --> 01:34:25.388
is a citizen at

3108
01:34:25.389 --> 01:34:26.389
birth,

3109
01:34:27.809 --> 01:34:29.949
doesn't it seem that whether

3110
01:34:29.950 --> 01:34:31.888
you agree with

3111
01:34:31.889 --> 01:34:33.529
the 14 the men, men or not.

3112
01:34:34.879 --> 01:34:37.199
The way to change that

3113
01:34:37.200 --> 01:34:39.679
would be a constitutional

3114
01:34:39.680 --> 01:34:41.839
amendment rather than an

3115
01:34:41.840 --> 01:34:42.840
executive order.

3116
01:34:43.860 --> 01:34:45.378
Well, so I do think the executive

3117
01:34:45.379 --> 01:34:45.409
order

3118
01:34:45.410 --> 01:34:47.949
of order is a particularly

3119
01:34:47.950 --> 01:34:49.869
weak way to do it from

3120
01:34:49.870 --> 01:34:50.929
this court's perspective.

3121
01:34:50.930 --> 01:34:52.209
It's certainly possible of the court

3122
01:34:52.210 --> 01:34:53.388
when the issue comes up on the

3123
01:34:53.389 --> 01:34:54.308
merits might even say we're not

3124
01:34:54.309 --> 01:34:55.409
going to reach the merits, just

3125
01:34:55.410 --> 01:34:57.308
going to say whatever is done here.

3126
01:34:57.309 --> 01:34:58.468
The president can't do it.

3127
01:34:58.469 --> 01:34:59.949
Maybe congress can do it but not the

3128
01:34:59.950 --> 01:35:00.950
president.

3129
01:35:02.930 --> 01:35:05.509
But as to the precedent,

3130
01:35:05.510 --> 01:35:08.788
you know the fact is no court

3131
01:35:08.789 --> 01:35:11.109
has been consistent in

3132
01:35:11.110 --> 01:35:13.048
its respect

3133
01:35:13.049 --> 01:35:14.449
for precedent.

3134
01:35:14.450 --> 01:35:16.269
It wasn't the Roosevelt Court

3135
01:35:16.270 --> 01:35:18.409
of the 1930s.

3136
01:35:18.410 --> 01:35:19.869
It wasn't the Warren Court.

3137
01:35:19.870 --> 01:35:22.869
It isn't the Roberts Court.

3138
01:35:22.870 --> 01:35:25.808
And especially one precedent rarely

3139
01:35:25.809 --> 01:35:27.829
really resolves matters unless

3140
01:35:27.830 --> 01:35:30.429
the justices either agree

3141
01:35:30.430 --> 01:35:32.569
with the precedent or on

3142
01:35:32.570 --> 01:35:34.468
some situations they say, there's a

3143
01:35:34.469 --> 01:35:35.628
famous line from Justice Brandeis,

3144
01:35:35.629 --> 01:35:36.888
it's more important that a thing be

3145
01:35:36.889 --> 01:35:38.699
settled than be settled right.

3146
01:35:38.700 --> 01:35:40.218
That this is something not terribly

3147
01:35:40.219 --> 01:35:41.539
controversial in a lot of fields,

3148
01:35:41.540 --> 01:35:42.619
this is the way it is.

3149
01:35:42.620 --> 01:35:43.839
Not terribly controversial.

3150
01:35:43.840 --> 01:35:45.819
There's one precedent, but we

3151
01:35:45.820 --> 01:35:46.779
need to know the rules of the road

3152
01:35:46.780 --> 01:35:47.999
that's we're gonna stick with.

3153
01:35:48.000 --> 01:35:49.199
This is not gonna be one of those

3154
01:35:49.200 --> 01:35:50.759
areas. And the other complication

3155
01:35:50.760 --> 01:35:53.039
about Juan Kimarque is that

3156
01:35:53.040 --> 01:35:54.899
it actually

3157
01:35:54.900 --> 01:35:56.878
stresses

3158
01:35:56.879 --> 01:35:58.739
in certain places, the

3159
01:35:58.740 --> 01:36:00.718
fact that the parents of

3160
01:36:00.719 --> 01:36:03.319
Juan Kimmarque were in fact

3161
01:36:03.320 --> 01:36:05.179
residents of the

3162
01:36:05.180 --> 01:36:06.169
US.

3163
01:36:06.170 --> 01:36:08.069
And not just physically present in

3164
01:36:08.070 --> 01:36:09.070
the U.S. When he was born,

3165
01:36:10.070 --> 01:36:11.888
but were residents of the U.

3166
01:36:11.889 --> 01:36:13.409
S. And at the time it was legal

3167
01:36:13.410 --> 01:36:14.649
residents because there was no

3168
01:36:14.650 --> 01:36:15.949
really illegal residents.

3169
01:36:15.950 --> 01:36:17.929
Well, they were functionally in an

3170
01:36:17.930 --> 01:36:20.229
illegalized class of immigrants,

3171
01:36:20.230 --> 01:36:22.269
right? They were Chinese nationals

3172
01:36:22.270 --> 01:36:23.808
under Chinese exclusion.

3173
01:36:23.809 --> 01:36:26.808
And so they were resident, but they

3174
01:36:26.809 --> 01:36:28.229
were subject to Chinese exclusion

3175
01:36:28.230 --> 01:36:28.378
provisions.

3176
01:36:28.379 --> 01:36:30.999
So I'm always very hesitant to

3177
01:36:31.000 --> 01:36:32.899
argue with you about this or

3178
01:36:32.900 --> 01:36:33.979
disagree with you, but my

3179
01:36:33.980 --> 01:36:36.638
understanding is they were,

3180
01:36:36.639 --> 01:36:37.819
they, the Chinese Exclusion Acts

3181
01:36:37.820 --> 01:36:39.739
would have precluded them from

3182
01:36:39.740 --> 01:36:41.718
becoming citizens and may have

3183
01:36:41.719 --> 01:36:43.718
precuded Chinese nationals

3184
01:36:43.719 --> 01:36:45.339
from coming to the U.S., but at the

3185
01:36:45.340 --> 01:36:46.979
time they arrived in the U S.

3186
01:36:46.980 --> 01:36:48.419
They arrived legally.

3187
01:36:48.420 --> 01:36:50.019
They were residents.

3188
01:36:50.020 --> 01:36:50.200
Well they arrived.

3189
01:36:50.201 --> 01:36:51.199
When they arrived and there was no.

3190
01:36:51.200 --> 01:36:52.199
Right, right, right.

3191
01:36:52.200 --> 01:36:54.499
Well, everything is

3192
01:36:54.500 --> 01:36:56.298
legal unless it's illegal,

3193
01:36:56.299 --> 01:36:57.619
generally. At least, that was sort

3194
01:36:57.620 --> 01:36:58.819
of the understanding then.

3195
01:36:58.820 --> 01:37:00.699
So if you look at the precedent,

3196
01:37:00.700 --> 01:37:02.919
the precedent is really not

3197
01:37:02.920 --> 01:37:05.479
as dispositive as

3198
01:37:05.480 --> 01:37:07.499
some of its defenders say.

3199
01:37:07.500 --> 01:37:09.159
And there are some preceding

3200
01:37:09.160 --> 01:37:11.019
precedents that it expressed some

3201
01:37:11.020 --> 01:37:12.759
doubt about this, that the court in

3202
01:37:12.760 --> 01:37:14.759
Wanke Mark didn't much follow.

3203
01:37:14.760 --> 01:37:16.459
Because again, not everything that

3204
01:37:16.460 --> 01:37:18.199
the Court says is always going to

3205
01:37:18.200 --> 01:37:19.200
stick.

3206
01:37:20.400 --> 01:37:21.659
Going forward.

3207
01:37:21.660 --> 01:37:23.839
So just as the Warren court

3208
01:37:23.840 --> 01:37:25.419
was perfectly happy to reverse

3209
01:37:25.420 --> 01:37:27.399
precedence from

3210
01:37:27.400 --> 01:37:30.359
just a few decades before,

3211
01:37:30.360 --> 01:37:32.218
I think very few courts are

3212
01:37:32.219 --> 01:37:33.739
going to think that one decision

3213
01:37:33.740 --> 01:37:35.638
with its limitations is going to

3214
01:37:35.639 --> 01:37:37.218
resolve this. I do think the court

3215
01:37:37.219 --> 01:37:39.359
will ultimately rule in favor

3216
01:37:39.360 --> 01:37:41.479
of birthright citizenship because

3217
01:37:41.480 --> 01:37:45.819
I

3218
01:37:45.820 --> 01:37:47.539
do of the policy, whatever our view

3219
01:37:47.540 --> 01:37:49.609
of it. Of evolving constitution,

3220
01:37:49.610 --> 01:37:51.329
we do think that Juan Camargo was

3221
01:37:51.330 --> 01:37:52.829
actually correct on that point.

3222
01:37:52.830 --> 01:37:54.929
And on top of that,

3223
01:37:54.930 --> 01:37:57.009
did not need to limit itself to

3224
01:37:57.010 --> 01:37:59.209
the requirement of residency.

3225
01:37:59.210 --> 01:38:01.089
But again, I don't know of

3226
01:38:01.090 --> 01:38:02.829
a single time when the court has

3227
01:38:02.830 --> 01:38:05.109
thought, yeah, one precedent from

3228
01:38:05.110 --> 01:38:07.749
125 years ago,

3229
01:38:07.750 --> 01:38:08.949
that settles it.

3230
01:38:08.950 --> 01:38:10.388
That's the end of the story for us.

3231
01:38:10.389 --> 01:38:11.349
I just don't think that's the way

3232
01:38:11.350 --> 01:38:12.218
that justice is operated.

3233
01:38:12.219 --> 01:38:13.558
I think you need a constitutional

3234
01:38:13.559 --> 01:38:14.899
amendment to get your preferred

3235
01:38:14.900 --> 01:38:16.159
policy, do you?

3236
01:38:16.160 --> 01:38:17.979
Oh yes, that's my point.

3237
01:38:17.980 --> 01:38:19.699
I think that birthright citizenship

3238
01:38:19.700 --> 01:38:21.819
is the correct interpretation of

3239
01:38:21.820 --> 01:38:24.079
the text and the constitution,

3240
01:38:24.080 --> 01:38:25.239
the constitution and the original

3241
01:38:25.240 --> 01:38:26.099
meaning.

3242
01:38:26.100 --> 01:38:28.079
And I think the originalists would

3243
01:38:28.080 --> 01:38:29.199
take that view

3244
01:38:30.840 --> 01:38:33.019
because they will

3245
01:38:33.020 --> 01:38:34.099
agree that that's the proper

3246
01:38:34.100 --> 01:38:35.259
interpretation of text and original

3247
01:38:35.260 --> 01:38:37.000
meaning, if they were, though, the

3248
01:38:37.001 --> 01:38:39.019
same, have the same conservative

3249
01:38:39.020 --> 01:38:41.339
ideology, but also believed in

3250
01:38:41.340 --> 01:38:43.279
living constitution, I think

3251
01:38:43.280 --> 01:38:45.189
they would probably say, well.

3252
01:38:45.190 --> 01:38:46.729
We think the Constitution lives in a

3253
01:38:46.730 --> 01:38:47.709
different way.

3254
01:38:47.710 --> 01:38:49.229
So in this respect, whether you like

3255
01:38:49.230 --> 01:38:50.609
originalism or not generally, in

3256
01:38:50.610 --> 01:38:52.729
this aspect, the originalist

3257
01:38:52.730 --> 01:38:54.669
sentiments of the justices on

3258
01:38:54.670 --> 01:38:57.509
the court are the friends of

3259
01:38:57.510 --> 01:38:59.479
the defenders of birthrights.

3260
01:38:59.480 --> 01:39:01.199
And this, on one issue,

3261
01:39:02.240 --> 01:39:04.159
to the point of the

3262
01:39:04.160 --> 01:39:05.839
courts doing generally well, even

3263
01:39:05.840 --> 01:39:08.019
despite sometimes the Supreme Court,

3264
01:39:08.020 --> 01:39:09.259
the Birthright Citizenship Order

3265
01:39:09.260 --> 01:39:11.138
came out on January 20th, it

3266
01:39:11.139 --> 01:39:13.499
was in place for three days,

3267
01:39:13.500 --> 01:39:15.539
it was enjoined on January 23rd,

3268
01:39:15.540 --> 01:39:17.399
and it has stayed enjoined

3269
01:39:17.400 --> 01:39:18.699
despite the Supreme Courts

3270
01:39:18.700 --> 01:39:20.279
intervention ever since.

3271
01:39:20.280 --> 01:39:21.718
The Supreme Court issued its

3272
01:39:21.719 --> 01:39:24.388
opinion, uh, saying...

3273
01:39:24.389 --> 01:39:25.829
The injunctions can only be

3274
01:39:25.830 --> 01:39:27.369
responsive to the people who brought

3275
01:39:27.370 --> 01:39:28.149
the case.

3276
01:39:28.150 --> 01:39:30.009
That same day, there was a class

3277
01:39:30.010 --> 01:39:31.749
action file that said everybody like

3278
01:39:31.750 --> 01:39:33.609
me who was born in the US gets to be

3279
01:39:33.610 --> 01:39:34.610
a citizen.

3280
01:39:35.370 --> 01:39:36.729
And an injunction was issued, I

3281
01:39:36.730 --> 01:39:38.628
think, July 10th, if I'm

3282
01:39:38.629 --> 01:39:40.169
not mistaken, which is well within

3283
01:39:40.170 --> 01:39:41.689
the window where Supreme Court said

3284
01:39:41.690 --> 01:39:42.968
this won't take effect for another

3285
01:39:42.969 --> 01:39:43.989
30 days.

3286
01:39:43.990 --> 01:39:46.048
So that injunction has been

3287
01:39:46.049 --> 01:39:47.628
blocked from the get-go.

3288
01:39:47.629 --> 01:39:49.249
It has stayed blocked, and I think

3289
01:39:49.250 --> 01:39:50.929
to Eugene's point, it's gonna stay

3290
01:39:50.930 --> 01:39:51.930
blocked.

3291
01:39:52.719 --> 01:39:53.859
There's a lot of mischief being done

3292
01:39:53.860 --> 01:39:55.279
in the procedural workings in the

3293
01:39:55.280 --> 01:39:56.280
meantime.

3294
01:39:56.600 --> 01:39:58.058
Well, that gives us a cliffhanger,

3295
01:39:58.059 --> 01:39:58.979
so everyone will have to come back

3296
01:39:58.980 --> 01:40:00.339
next summer.

3297
01:40:00.340 --> 01:40:02.179
But please join me in thanking

3298
01:40:02.180 --> 01:40:03.739
Cary Franklin, Eugene Volokh,

3299
01:40:03.740 --> 01:40:05.479
Jennifer Chacon, and Justin Levitt

3300
01:40:05.480 --> 01:40:06.798
for a great discussion.

3301
01:40:06.799 --> 01:40:07.799
Thank you all.

3302
01:40:11.420 --> 01:40:13.339
Think what a year can

3303
01:40:13.340 --> 01:40:14.340
bring...