SCOTUS Long Conference and 'Insecure Originalists'

Interactive Transcript

spk_0 Advisory opinions is presented by a Pacific Legal Foundation, suing the government since 1973.

spk_0 You ready?

spk_0 I was born ready.

spk_0 Welcome to Advisory opinions, I'm Sarah Isger, and that's David Lat from Original

spk_0 Jurisdiction.

spk_0 We have got a lineup for you, the short conversation about the long conference, the cases that the

spk_0 court granted, and denied.

spk_0 We'll move on to the sentencing of Nicholas Roskey for the attempted assassination of Justice

spk_0 Brett Kavanaugh, and finally a conversation about judicial philosophies, methodologies,

spk_0 and a fun speech given by Justice Alito on Obergefell.

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spk_0 Welcome David Lat to advisory opinions thrilled to have you back.

spk_0 Great to be here.

spk_0 We have plenty to get through today.

spk_0 First conversation, a short conversation, let's say, about the long conference.

spk_0 Generally speaking, David, the long conference is something we all look forward to.

spk_0 It's when the most number of cases get granted by the court, even though your chance of

spk_0 getting your case granted is the lowest it will be during the year, if that makes sense

spk_0 to everyone.

spk_0 Because they're reviewing so many petitions from over the summer at that long conference

spk_0 that happens, usually the Monday before the beginning of the term, they grant a lot of

spk_0 cases, but percentage wise, there's just so many cases that a locket rejected as well.

spk_0 Why is that?

spk_0 There've been some interesting theories.

spk_0 One, of course, as always, is to blame the clerks that you're getting reviewed by the

spk_0 new set of clerks that started in July and clerks fear more than anything else in the

spk_0 world aside from scorpions, you know, recommending a case get granted only to have a dig later,

spk_0 dismissed as impravidently granted, meaning usually that the clerk missed something, a procedural

spk_0 problem or some reason that it wasn't a good vehicle.

spk_0 So clerks are very grand shy at the beginning of their term.

spk_0 I think that makes sense as far as it goes, but I think at some point also, once people

spk_0 knew that their petition was less likely to get granted over the summer, there is some

spk_0 wiggle room, you know, and asking for an extension of time on your brief or getting your brief

spk_0 in before the due date of your brief so that those repeat players who are very knowledgeable

spk_0 on Supreme Court practice avoid the long conference like the plague if they can get their

spk_0 petition to be considered before or after.

spk_0 So it becomes this sort of self-perpetuating thing where the most worthy petitions tend

spk_0 not to come up at the long conference at this point.

spk_0 You know, I have to wonder though, it seems like it would maybe be marginal to me in the

spk_0 sense that if you have a great case that should be granted cert and you have a circuit

spk_0 split and you have a hot and important issue, it just seems to me that...

spk_0 Your case is going to get granted.

spk_0 These are, you know, the justices are very, very smart as are their clerks and I just

spk_0 don't think that someone is going to miss an otherwise cert where they case because it

spk_0 was wound up in the long conference.

spk_0 I mean, maybe you could argue your thing will stand out even more amid all the drag.

spk_0 I don't know.

spk_0 I think that's a fair point.

spk_0 Maybe we'll see the return of the long conference at some point where because so few maritorious

spk_0 cases come into the long conference.

spk_0 You're like, oh, this is the perfect time for us to showcase our case and around and

spk_0 around.

spk_0 We'll go in this ever swinging pendulum of the long conference.

spk_0 Well, this time around some notable cases rejected, though none particularly surprising.

spk_0 First on the order of rejections was Jelaine Maxwell's appeal of her Epstein conviction.

spk_0 I think we all thought the court has no interest in this case because of who it is.

spk_0 Remember, the court takes questions not cases.

spk_0 So even though her question presented was somewhere between mildly and pretty interesting,

spk_0 this was about whether a deal made with Jeffrey Epstein that included co-conspirators made

spk_0 by one US attorney's office was binding on a different US attorney's office, whether

spk_0 she was included in that.

spk_0 There were a few problems with it one just factually.

spk_0 It was not clear that she was included as a co-conspirator.

spk_0 It was also not clear that it was ever intended to bind the United States versus the single

spk_0 US attorney's office like the text of the agreement had multiple readings that were

spk_0 plausible.

spk_0 And again, the Supreme Court wants that good vehicle.

spk_0 This wasn't a perfect vehicle for deciding this question.

spk_0 And of course, under the bad man stays in jail theory, it was definitely not the perfect

spk_0 defendant for whom to decide this question.

spk_0 Yeah, this is a case with just too much baggage.

spk_0 I think that Maxwell's lawyer, David Oscar-Marcus did a very nice job of trying to make as compelling

spk_0 a case for hearing this as possible.

spk_0 But at the end of the day, oh goodness, Epstein, I think everyone at one first street wants

spk_0 nothing to do with that.

spk_0 They have enough headaches and they have enough things on their table.

spk_0 They don't need to wait into Lefair Epstein.

spk_0 Okay, next one, a little less in A.O.'s wheelhouse, but live nation entertainment got rejected

spk_0 on their consumer antitrust suit.

spk_0 The lower courts had held that the arbitration clauses were unconscionable and couldn't be

spk_0 enforced under California law.

spk_0 This is one of those ticket master lawsuits about inflated ticket prices.

spk_0 On the one hand, it may not sound sexy.

spk_0 On the other hand, it probably affects more people than a lot of other Supreme Court cases.

spk_0 Well, it reminds me of this panel I recently moderated at the SCOTUS blog summit with

spk_0 three chief legal officers from Fortune 25 companies.

spk_0 One of the topics we discussed was the declining number of business cases at the Supreme

spk_0 Court.

spk_0 A lot of these cases may not be quote unquote sexy, but as you were just saying, they affect

spk_0 a lot of people.

spk_0 They involve a lot of money.

spk_0 They're very, very important.

spk_0 I think you could ask the question of, well, is the court paying too much attention to

spk_0 so-called cultural war issues and not enough to these commercial issues, class actions,

spk_0 antitrust, arbitration, a lot of issues that affect commercial litigation?

spk_0 And then the last one, which was getting a fair amount of attention, also got rejected

spk_0 from the court.

spk_0 This was Missouri's, we don't do federal gun laws case.

spk_0 Missouri passed a state law banning state and local law enforcement from helping any

spk_0 federal law enforcement execute federal gun restrictions within Missouri.

spk_0 And also that if you, as a federal employee, had ever enforced a federal gun restriction,

spk_0 you were not eligible for state employment.

spk_0 Lower courts enjoined that law preemption.

spk_0 And Missouri initially went to the Supreme Court asking for a stay of that stay of that

spk_0 injunction.

spk_0 And it was six three with Gorsuch, Alito and Thomas as the three dissenters sort of.

spk_0 Thomas said he would actually grant this day.

spk_0 Alito and Gorsuch would not have granted this day.

spk_0 They were agreeing, so actually it was an eight-one case.

spk_0 But they did write separately to say that the injunction only applied to Missouri officials

spk_0 but to the extent private parties couldn't enforce the law that part of the law was still

spk_0 going into effect.

spk_0 Missouri certainly wanted this to be an example to the rest of the red states for how to

spk_0 have like the most second amendmenty vived state in the country and Supreme Court nod dog

spk_0 Valin.

spk_0 Well, it is interesting.

spk_0 We are going to have these recurring battles or questions of state versus federal authority.

spk_0 We see this percolating a bit in the immigration context where states are passing their own

spk_0 immigration laws.

spk_0 So this is going to be an area of continued activity.

spk_0 And it's interesting.

spk_0 Often when you think about federal versus state stuff, you think the Democrats say control

spk_0 the White House and you're dealing with red states or the Republicans control the White

spk_0 House and you're dealing with blue states.

spk_0 But sometimes you might have a situation where you have a Republican federal government

spk_0 and you have a red state trying to do something or do more.

spk_0 So again, it's certainly an interesting overall area, even if the court did not take this

spk_0 particular case.

spk_0 Well, there were other cases that I'm sure were mildly interesting on the deny list.

spk_0 It was a 39 page order and over 30 pages of it was just cert denied, cert denied,

spk_0 then you have another two pages of habeas corpus denied, habeas corpus denied and

spk_0 rehearing denied.

spk_0 So all in all, 39 pages of denied.

spk_0 Now let's talk about what got granted.

spk_0 Big one that everyone's talking about is this Hawaii case.

spk_0 For those that remember our A.O. episode on the spirit of a loha, this is actually not

spk_0 that case.

spk_0 Many times these cases do come back and we're like, remember that time.

spk_0 This is related to that case, but it's not the same case.

spk_0 So in that spirit of a loha case, the guy gets arrested hiking when he accidentally

spk_0 slash whatever traversed some private property with a gun and did not had never applied for

spk_0 a license.

spk_0 He then tried to argue that the licensing scheme was unconstitutional and they're like,

spk_0 yeah, you have to apply for the license to argue that it's unconstitutional.

spk_0 So David, when that case got to the court, it was cert denied, but in that one, you had

spk_0 Justice's Thomas and Alito with a statement respecting the denial of cert where they

spk_0 basically said, like, yeah, this is coming up on like an interim posture.

spk_0 The guy wants to stop his prosecution on the front end.

spk_0 Why don't you come back to us on the back end, but also state court, state Supreme Court

spk_0 of Hawaii.

spk_0 We're watching you and what you've done here is egregious and we hate you.

spk_0 I mean, that's basically what it said.

spk_0 It was though a little more like we hate you because you hate us.

spk_0 Here's a here's a line from it.

spk_0 The Hawaii Supreme Court spent the bulk of its opinion explaining why the Hawaii

spk_0 Constitution does not confer an individual right to bear arms with its analysis that

spk_0 doubled as a critique of this court's second amendment jurisprudence.

spk_0 The court specifically took aim at our focus on original meaning,

spk_0 but moaning the policy consequences.

spk_0 The court asserted that an originalist interpretation of the second amendment,

spk_0 disables the state's responsibility to protect public safety, reduce gun violence

spk_0 and safeguard peaceful public movement by putting firearm restrictions mostly

spk_0 out of bounds and it denigrated the need for public carry in particular

spk_0 rejecting his unhawaiian, a federally mandated lifestyle that let citizens walk

spk_0 around with deadly weapons.

spk_0 On the Hawaii Supreme Court's view, a sounder approach to constitutional

spk_0 interpretation would give due regard to the spirit of aloha and would

spk_0 preclude any individual right to bear arms or at least subject it to levels of

spk_0 scrutiny and public safety balancing tests.

spk_0 So that opinion was I will grant you a little bit bonkers town because there's

spk_0 like a whole lot on spirit of aloha and there's like one or two paragraphs on

spk_0 the second amendment, but to maybe the theme of this podcast,

spk_0 it was not the best vehicle because sort of the posture that it came up in

spk_0 and the fact that the guy hadn't ever applied for the license.

spk_0 You had Thomas and Alito saying that that doesn't prevent someone from attacking

spk_0 the constitutionality once they've been arrested, but nevertheless,

spk_0 it felt a little bit off.

spk_0 Okay.

spk_0 So here's this case that they've granted cert on.

spk_0 This is seeking an injunction against Hawaii's law in California, by the way,

spk_0 has the same law.

spk_0 And I think three other states where if you're on private property,

spk_0 it doesn't matter whether you have a concealed carry license, the private

spk_0 property in Hawaii, you must have explicit permission from the private

spk_0 property owner to carry on private property in California.

spk_0 That explicit permission must be posted in writing oral permission or private

spk_0 written permission is not sufficient.

spk_0 And this covers private property and then bands entirely in sensitive places.

spk_0 And we certainly talked about sensitive place laws in the past.

spk_0 David French is a fan by and large.

spk_0 So David Latte, what do you think of this case?

spk_0 Are you surprised that they granted another second amendment case this term?

spk_0 Are you surprised they went with this one?

spk_0 How do sensitive places fare?

spk_0 And you know, the argument from the second amendment folks is this this private

spk_0 property loophole, so to speak, basically they call it the, you know,

spk_0 the anti-Bruin or the unbruining of the second amendment wherein like so

spk_0 much as private property that you would never really be able to conceal carry

spk_0 if every single place you'd go into or walk on, you wouldn't be able to

spk_0 private carry unless there's a concealed carry, sorry, unless there's a posted

spk_0 sign telling you you can, which nobody's going to do.

spk_0 And so this is the question presented, whether the ninth circuit aired in

spk_0 holding that Hawaii may presumptively prohibit the carry of handguns by

spk_0 licensed concealed carry permit holders on private property open to the

spk_0 public unless the property owner affirmatively gives express permission to

spk_0 the handgun carrier.

spk_0 I just want to highlight the open to the public language.

spk_0 So for example, one of the things that came up before the ninth circuit is a

spk_0 bank and whether or not if you have a concealed carry permit, can you bring

spk_0 your gun into a bank if the bank itself does not want you to do that?

spk_0 Because there is this distinction between, I guess you could call it private

spk_0 private property, private property not open to the public like my house or

spk_0 something versus private property that is actually freely open to the public.

spk_0 And maybe a bank is is stacking the deck against second amendment

spk_0 supporters because people just think of bank robberies, but what about a

spk_0 mall, for example?

spk_0 You know, there it's very, very public in a mall.

spk_0 I believe there is a circuit split on this issue specifically because

spk_0 there was a case out of New York called Anton Jock, V. James,

spk_0 Tish James being the attorney general in New York.

spk_0 And New York, like California and Hawaii had passed a post-brew and gun law

spk_0 that did a lot of things and one of them regulated carry concealed carry on

spk_0 private property open to the public.

spk_0 And I believe the second circuit actually went the other way as noted and

spk_0 judged grabers opinion in Wallford.

spk_0 So I guess there is a split on that issue.

spk_0 The other thing that's interesting is they seem to be, I guess you could kind of

spk_0 say, taking their time on the second amendment stuff in this sense.

spk_0 If you look at Wallford V. Lopez, the ninth circuit opinion, this is a pretty

spk_0 sizable opinion.

spk_0 It is, I think, something like 84 pages and it was unanimous.

spk_0 So that's 84 pages of majority opinion.

spk_0 And it actually goes through a whole bunch of provisions of California and

spk_0 Hawaii law.

spk_0 And so the court decided to take this very specific issue and it decided to

spk_0 take it as to private property open to the public.

spk_0 So kind of going to a point you've made on this podcast before the court

spk_0 doesn't take just kind of cases writ large.

spk_0 It decides particular questions here.

spk_0 It really bit off a very discreet question.

spk_0 It didn't decide to take on the whole.

spk_0 Well, let's just review the entirety of these Hawaii and California laws.

spk_0 It's taking on this very specific discreet issue.

spk_0 All right.

spk_0 The other case that they granted, they only granted five and three of them are

spk_0 not AO level at this point.

spk_0 But the other one that I think is kind of fun is a Fifth Amendment taking

spk_0 case.

spk_0 And for some reason, David, I am just so into Fifth Amendment taking case.

spk_0 This one does not disappoint.

spk_0 It is Michigan.

spk_0 The last fun one was Minnesota, but you know, there are some reason in the Midwest.

spk_0 What's wrong with these states?

spk_0 So there's a long story that probably isn't worth getting into here.

spk_0 But let's just say, I don't even think these people owed this tax,

spk_0 but it was a $2,000 tax lien on their property.

spk_0 But again, there's lots of reasons to think they never owed the tax.

spk_0 The tax commissioner seemed to have like a personal beef with them or something

spk_0 because they went to court and won.

spk_0 And the tax commissioner was like, okay, fine.

spk_0 I can't apply those rules to those years, but I can apply it to this year

spk_0 because technically you didn't sue on that specific year,

spk_0 even though it would require the exact same legal analysis.

spk_0 So they owed $2,000.

spk_0 The tax collector sends this to the whatever person who forecloses on property in Michigan.

spk_0 And they foreclose on this property for the $2,000 tax lien

spk_0 and sell the property at private auction for or public auction, sorry, for $74,000.

spk_0 The person who buys that at the auction immediately turns around and sells it

spk_0 for $194,000.

spk_0 How much does the state owe the tax debtor?

spk_0 Is it $74,000 minus $2,000?

spk_0 Or is it the $194,000 minus $2,000?

spk_0 I.e. is it just the amount you sold it for or is the fair market value?

spk_0 The amount and if you sell it at auction for something less than the fair market value,

spk_0 that's on you.

spk_0 You don't get to keep the windfall though.

spk_0 If you manage to have a bad auction

spk_0 and it's clear that the fair market value is something else.

spk_0 And does this violate the Eighth Amendment's excessive fines,

spk_0 which is another interesting question that the court has not reached yet,

spk_0 although Justice Gorsuch seems hot to trot on that Eighth Amendment question.

spk_0 David, I'm super into this case, even though on the scale of cases that affect people's lives,

spk_0 yeah, I think this one's pretty low on the sheer numbers.

spk_0 But screw these people.

spk_0 Like the facts here are egregious,

spk_0 both leading up to the taking and then after the taking,

spk_0 they sell it at public auction for something they knows below fair market value.

spk_0 And then reap the windfall of that as long as you can like have this in between time,

spk_0 the same time.

spk_0 Like what if the market has a dip?

spk_0 Is the state supposed to hold on to the property until they can sell it for more?

spk_0 What happens if they just can't get the fair market value at the auction?

spk_0 Doesn't that mean it's not fair market value?

spk_0 Isn't that what an auction's all about is trying to get to the fair market value?

spk_0 Again, I'm super unsympathetic to that,

spk_0 but there is like a very practical problem here.

spk_0 Isn't the public auction the thing that determines fair market value?

spk_0 Yes, that is, you're right.

spk_0 That is the issue.

spk_0 And it is not unusual.

spk_0 It's probably actually pretty common for auctions to be the way for a government to dispose of property.

spk_0 But I do agree with you about the facts here being the gregis.

spk_0 And I think a lot of times in these types of cases,

spk_0 people just look at the facts and they imagine themselves in the shoes of the property holder.

spk_0 And if the vibe is sort of like, wow, you got a raw deal.

spk_0 You know, it's maybe it's a variation or analogous to the, you know, bad person stays in jail.

spk_0 This is sort of like the, you know, ripped off property owner gets relief.

spk_0 So I don't know.

spk_0 It is interesting what rule you can come up with that is going to be administrative,

spk_0 you know, by governments, which end up with this property.

spk_0 So yeah, this case comes out of the six-circuit you mentioned.

spk_0 It involves Michigan.

spk_0 It's Pung V Isabella County.

spk_0 All right.

spk_0 We're going to leave the long conference.

spk_0 By the way, note, we actually did get quite a few grants from the long conference in the last few terms.

spk_0 This was only five.

spk_0 I went back to some previous terms where if you consolidate the consolidated cases,

spk_0 the grants were as low as three.

spk_0 I don't know.

spk_0 I'm not sure we should be like gearing up for the long conference,

spk_0 the way that I've been doing because it's like this feeling like,

spk_0 oh, the summer's over or schools back in session.

spk_0 I'm so pumped to see my friends.

spk_0 But the long conference feels like home room.

spk_0 Like nothing's really happening anymore.

spk_0 I don't know.

spk_0 Well, we get back.

spk_0 We'll talk about the sentencing of the would-be Justice Kavanaugh assassin.

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spk_0 Are you David?

spk_0 I want to refresh people's memories on the facts here.

spk_0 Nicholas Roskey was on the front lawn of Justice Brett Kavanaugh's house at 1am

spk_0 with a black chest rig tactical knife,

spk_0 Glock 17 pistol with two magazines, ammunition,

spk_0 pepper spray zip ties, a hammer screwdriver, nail punch, crowbar, pistol light,

spk_0 and duct tape.

spk_0 He saw the two marshals.

spk_0 I also believe the two marshals saw him and walked down the street.

spk_0 He called his sister who then persuaded him to call 911 to turn himself in.

spk_0 That went to, was going to go to trial.

spk_0 In the end, Nicholas Roskey pleaded guilty.

spk_0 So we just had the sentencing.

spk_0 The prosecution sought 30 years, at least 30 years.

spk_0 And the judge sentenced Roskey to 97 months, eight years.

spk_0 Stated reasons for that.

spk_0 One, while Nicholas Roskey is the name on the indictment,

spk_0 and the legal name of the person who was charged during the course of these proceedings,

spk_0 Nicholas Roskey requested to be referred to by female pronouns,

spk_0 and by the name Sophie.

spk_0 Though again, the legal name hasn't changed,

spk_0 and the legal title of the case hasn't changed.

spk_0 So on this podcast, we're still going to use, because the case is Nicholas Roskey.

spk_0 But I'm now quoting from the judge in sentencing.

spk_0 Two justifications.

spk_0 One, a lesser sentence was warranted, because Miss Roskey, who had no prior criminal history,

spk_0 had abandoned her plan at the final moment, surrendered to authorities, told him about the plot,

spk_0 and was genuinely remorseful.

spk_0 Second, because of an executive order issued by President Trump,

spk_0 mandating that transgender women be held at male-only federal facilities,

spk_0 this could interfere with her continuing to receive gender transition care.

spk_0 And then there was this line, David, that I think people found particularly upsetting.

spk_0 The judge said,

spk_0 I am heartened that this terrible infraction has helped the Roskey family accept their daughter

spk_0 for who she is.

spk_0 So David, the original plot included targeting three Supreme Court justices to be assassinated.

spk_0 This got pretty far along.

spk_0 If the marshals hadn't been there on the front lawn,

spk_0 this could have turned out very differently.

spk_0 I gotta say, I find eight years pretty outrageous.

spk_0 I think a lot of people view this sentence as not sufficient,

spk_0 and not surprisingly, Attorney Pam Bondi referred to it as woefully insufficient,

spk_0 arguing that it does not reflect the horrific fact of the case,

spk_0 and Bondi declared that the government would be appealing.

spk_0 And it's interesting, you know, the review on appeal is pretty deferential.

spk_0 It's essentially for reasonableness.

spk_0 I think there's a case here that this was not a reasonable sentence.

spk_0 So I think that's tough, right?

spk_0 On this abusive discretion standard,

spk_0 generally speaking, when you're talking about federal sentencing,

spk_0 the times where your sentence gets overturned is because the judge didn't calculate your

spk_0 sentence under the federal guidelines correctly.

spk_0 Or, now, you have to calculate them correctly.

spk_0 You don't have to then stick to them.

spk_0 But if you calculate them correctly, but don't want to stick to them,

spk_0 you have to give reason.

spk_0 So the other reason that sometimes these sentences get sent back is because the judge

spk_0 didn't really say why they were departing usually upwards.

spk_0 Usually it's the defendant who is appealing the sentence.

spk_0 So obviously, this won't fall into either of those categories.

spk_0 Is it abusive discretion not under that first reason, right?

spk_0 There's just no way.

spk_0 Like the idea, like, you don't have a criminal record,

spk_0 and you abandon the plan.

spk_0 You cooperate with authorities, blah, blah, blah.

spk_0 Not abusive discretion.

spk_0 It's that second reason that you, because of President Trump's order,

spk_0 you won't be able to receive gender affirming care potentially in your hospital.

spk_0 So I'm giving you a lesser sentence.

spk_0 Well, that may be abusive discretion, actually.

spk_0 Your policy differences or that prison will be hard on someone?

spk_0 Prison's pretty hard, man.

spk_0 I wouldn't recommend it.

spk_0 Even so, I don't know.

spk_0 I think this is going to be difficult.

spk_0 The part that I think, though, David, if you are someone who has complained about threats

spk_0 against the judiciary under this administration,

spk_0 and that those threats have gone up, are concerning,

spk_0 are a threat to the rule of law, but then you turn around and are fine

spk_0 with an incredibly lenient outside the guideline downward departure sentence

spk_0 for someone who, I mean, came very, very close and was fully prepared

spk_0 to assassinate a federal judge.

spk_0 What are we doing here?

spk_0 You're just not okay with people sent, like, threatening federal judges

spk_0 who you like their decisions that can't be the standard.

spk_0 I think there's a decent chance that this judge is told try again.

spk_0 Because you're right, the standard is very forgiving to the trial judge.

spk_0 This is after a series of cases that made the federal sentencing guidelines no longer binding.

spk_0 They were binding for many years.

spk_0 And so a judge had to stay within this narrow range of months.

spk_0 Now they don't have to do that.

spk_0 But again, this may not be the...

spk_0 So often when they're talking about the standard of review and sentencing,

spk_0 they talk about procedural reasonableness or substantive reasonableness.

spk_0 Procedural reasonableness goes to whether or not the judge kind of messed up some step,

spk_0 for example, incorrectly calculated the guidelines range or something like that.

spk_0 Or there might be a procedural defect where, for example,

spk_0 a defendant is not allowed to address the court.

spk_0 They're supposed to be allowed to address the court, this so-called allocation,

spk_0 things like that.

spk_0 Substantive reasonableness is kind of like, okay, looking at the bottom line sentence,

spk_0 is that a fair and reasonable sentence?

spk_0 I think the sentence just seems really low.

spk_0 So I wanted to hear outrage from the same crowd that talks about threats to the federal judiciary.

spk_0 Like, they should be outraged about this.

spk_0 And I'm not hearing much at all.

spk_0 But David, I have a pet theory as to why we're here.

spk_0 Or rather, I want to apply a previous pet theory to this situation,

spk_0 which is the end of the judicial filibuster is really bad for the judiciary and

spk_0 arguably the rule of law.

spk_0 So this judge with whom I know nothing about whom I know nothing, probably as a wonderful judge,

spk_0 right? I have no idea. This is not about this specific judge.

spk_0 However, this judge was confirmed, nominated and confirmed, after the end of the judicial

spk_0 filibuster for lower court judges.

spk_0 She was confirmed during Joe Biden's term.

spk_0 So actually, after the judicial filibuster was gone for every type of judge in the federal

spk_0 government, when you don't need votes from the other side, it's going to change the type of

spk_0 person who wants to be a judge, the type of person who can get confirmed as a judge.

spk_0 And my theory goes, some of the behavior you will see from judges who might want a promotion

spk_0 in the future, because you're no longer worried as a federal judge. Let's say you are a district

spk_0 judge, but you think I'd make an excellent circuit judge. Just hypothetically. Again, I have no

spk_0 idea if this applies to this judge at all. The better way to do that circa 2005 was to keep your

spk_0 head down and sort of go to events being known by the people who make these decisions,

spk_0 but you don't really want a paper trail of any kind. Because when you actually go up for that

spk_0 confirmation hearing, you don't want them to really be able to ask you anything.

spk_0 Now, in 2020, slash 2025, whatever version of the world you want to use, post filibuster,

spk_0 you're not worried about getting votes from the other side. You're worried about your own

spk_0 side sniping you for being insufficiently committed to the cause. And so you want to stand out

spk_0 for being the most committed to the cause. And I worry that things like this that make judges the

spk_0 shiny blade of grass that's standing out help them in a post filibuster world in a really

spk_0 negative way. Yep, I will not disagree with the word of that. I think that this is definitely

spk_0 something that makes this judge stand out. And if you had a Democratic president and democratic

spk_0 control of the Senate, I could see this judge being hailed as a hero of sorts.

spk_0 So again, we'll have to see how that goes. I do feel that there has been this shift in the past

spk_0 couple of years in terms of public sentiment on sort of transgender issues. And this remains

spk_0 a very hot button issue. You've talked on some recent episodes about Supreme Court cases in

spk_0 this space. So yeah, like to kind of carry your band, the banner for your side and onto the field

spk_0 of battle and the cultural wars, that does make you stand out when people are thinking about

spk_0 judges for possible promotions. And to be clear, it's not because this involved justice

spk_0 cabinet that I think this, it's because of the statement on the transgender status that I think

spk_0 would make this judge potentially stand out. The justice cabinet part gives it the news hook,

spk_0 if you will. You wouldn't get a lot of news coverage over a sentence like this without that.

spk_0 But yeah, I think this is, I think it's bad all around. All right, when we get back, we will talk

spk_0 about a speech that Justice Alito gave a few days ago on insecure originalists, as well as,

spk_0 I don't know, do a little glossary of different judicial philosophies that people can

spk_0 ascribe to these days. We'll be right back.

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spk_0 All right, David. Lat, we are back to talk about just a Samuel Alito's speech at the Antonin

spk_0 Scalia Law School. That's George Mason Law at the C Boyd and Gray Center for the Study of the

spk_0 Administrative State. Now, David, this was open to the press, and it was not off the record,

spk_0 but I do want to be clear that I am using notes from someone who was attending in the audience.

spk_0 There was also media reporting on it, but some of the notes, of course, are a little more in the

spk_0 weeds that I like versus some of the reporting that focused on Justice Alito's statements on Obergaphel.

spk_0 But let's start with the Obergaphel part. So, David, Lat, you are married to Zach Shemtab

spk_0 of Scotus Blog fame. Obergaphel paves the way for your marriage. Are you concerned that this court

spk_0 could overturn Obergaphel? Are you concerned that Justice Alito wants this court to overturn Obergaphel?

spk_0 No, I am not particularly concerned about a possible overruling of Obergaphel, and I'm not alone

spk_0 in that in the LGBTQ community. I had a podcast interview with Shannon Mentor, who is a very well-known

spk_0 LGBTQ rights litigator, and even Shannon didn't think that Obergaphel itself is getting overruled.

spk_0 So, this was, as you mentioned, the 2015 ruling that made Same-sex marriage the law of the land.

spk_0 And in this speech that Justice Alito gave, his quote was, and I'm quoting here,

spk_0 in commenting on Obergaphel, I am not suggesting that the decision in that case should be overruled,

spk_0 close quote. And then he went on to repeat some criticisms of the decision, criticisms that were

spk_0 included in his dissent in Obergaphel. But I think it's important to note that saying,

spk_0 I'm not suggesting that Obergaphel be overruled is not the same as saying, if the viability of

spk_0 Obergaphel came before this court, I would vote to uphold it. I think what he also said in this

spk_0 same talk was, well, Obergaphel is a president of this court, and it is entitled to the benefit of

spk_0 Stare decisis, or respect for what has come before, respect for precedent. And that is very obviously

spk_0 true. He's not stating anything controversial in that. But I guess what I'm saying with Obergaphel

spk_0 is, look, you need five votes. And even if you might have three or I don't know, maybe even four votes,

spk_0 I don't know that you have five for overruling it. And I don't even know, again, if the court

spk_0 wants to get into this, because remember, you have to get the four votes to grant cert,

spk_0 it'll be interesting. I guess it was not resolved at the long conference, but Kim Davis, that

spk_0 clerk from, I believe, Kentucky, who didn't want to issue same-sex marriage licenses,

spk_0 she has a case before the Supreme Court where she actually, her, she frames her case as really

spk_0 kind of a religious liberty case, but she actually has a point in her brief saying,

spk_0 Obergaphel should be overruled. And if there was a hunger on the court for doing that,

spk_0 they could grant her case, but I don't know that there is such a hunger. So Obergaphel was decided

spk_0 five, four. I believe, we'll see if you agree with me, that if Obergaphel itself for the first time

spk_0 came before this court, the outcome would have been different today. However, that's not the question.

spk_0 The question now that this is a precedent of the court, is does it meet the story

spk_0 de-saisis factors to follow even an incorrectly decided decision? And I mean, incorrectly,

spk_0 because some, I think, a majority of justices would have decided it differently, that even though

spk_0 it was decided incorrectly, we uphold it because of these story de-saisis factors. And just to remind

spk_0 everyone, right, precedent, story de-saisis, however you want to think about it, is not about a

spk_0 holding case that we're correctly decided. Otherwise, we would just decide them the same way.

spk_0 Story de-saisis only matters. precedent only matters if you think the case was wrongly decided. So

spk_0 if you think the case was correctly decided, don't yell about precedent. It doesn't work very well.

spk_0 The people on the other side of Brown versus Board of Education tried the precedent argument for

spk_0 Plessy. Well, it's precedent. It's been around for 50 years. I don't think anyone is sitting around

spk_0 going, whoo, they really should have weighed those star-i-desaisis factors differently. So what are

spk_0 those star-i-desaisis factors that are relevant here? Was there a reasoning, even if I wouldn't have

spk_0 described to that reasoning, but it is a reasonable reasoning. Was it grounded in something?

spk_0 And it was. It was grounded in the Equal Protection Clause. Justice Kennedy provides that fifth vote,

spk_0 et cetera, et cetera. It does lead Justice Scalia to have his famous descent about, you know,

spk_0 if I were to join that opinion, I would hide my head in a bag. But the big one for Obergefell,

spk_0 of course, is reliance. Now, when it came to dobs, the reliance argument from the one side was

spk_0 that women have organized their lives around the ability to abort an unwanted child if they get pregnant.

spk_0 But the reliance argument that the other side made was, no, the reliance is nine months long max,

spk_0 like, once you are pregnant, you thought you could get an abortion, and now you can't. So, like,

spk_0 during the course of this litigation, we basically wiped away the reliance interest,

spk_0 and the court decided on that side the same, by the way, really happened in Brown v. Board of

spk_0 Education. The reliance interest in having segregation was basically something like, we built all

spk_0 these schools to be segregated. And that was found not to be a particularly impressive reliance

spk_0 interest. Obergefell's so different on the reliance interest because, of course, people literally

spk_0 have families and children and, you know, don't have power of attorney letters because they don't

spk_0 need them because they're married. So, it's automatic. Like, the reliance interest is huge on

spk_0 Obergefell. Maybe more so than any precedent I can think of currently at the court.

spk_0 Yeah, I totally agree with you. Now, Kim Davis, in her petition, says, well,

spk_0 she graciously says, well, all you couples who are already same-sex married, well, you can stay

spk_0 married. You kind of get, you know, legacyed in, as they say. But yeah, the reliance interests are

spk_0 still huge, and you can think of other contexts not involving just people who are already married,

spk_0 where people are relying on the existence of the same-sex marriage. So, I think that is a big

spk_0 different. And also remember, dobs, Justice Alito's opinion and dobs, has this language which

spk_0 refers to how this opinion should not be construed to cast out on the viability of certain other opinions.

spk_0 And I think that language and dobs was widely read as referring to something like Obergefell.

spk_0 So, I am not personally to worried about that. I think what we will continue to see is

spk_0 religious liberty stuff, you know. But I don't think Obergefell itself is going to be revisited.

spk_0 And, you know, fun tidbit, Justice Kennedy's memoir is coming out next week. And there's been

spk_0 some early reporting on it. I have a copy, but I have not yet read it. But there's been some reporting,

spk_0 I think, you know, Totenburg, Seth Stern, a couple of other people have pulled out some highlights.

spk_0 And one of the highlights is that apparently after the paper bag insult that Justice Scalia included

spk_0 in his dissent, he, this was quite a bit later, but he actually came by Justice Kennedy's chambers

spk_0 to apologize for that. And they hugged it out. And interestingly enough, and sadly, Justice

spk_0 Scalia passed away shortly after that. I think maybe a week or two later. So I think Justice Kennedy

spk_0 was glad that he was able to mend defenses with Justice Scalia over that language before Justice

spk_0 Scalia passed. It's so easy to forget that these people see each other and work together and

spk_0 have lunch together so much, I mean, as Justice Barrett said, it's an arranged marriage with no

spk_0 option for divorce. It can be easy to just read the words and think of it like a Twitter burn

spk_0 or something, but like you got to see that person the next day and sit and talk with them about like

spk_0 they're, you know, how their grandkids are doing. And like that's going to be pretty awkward if you

spk_0 kind of insult someone personally like that. And the head and the back thing was pretty

spk_0 personally insulting. Okay, let's expand this conversation out to Justice Alitos,

spk_0 jurisprudence in general. He has referred to himself as a working originalist, a judge who

spk_0 strives to achieve originalist aims while working within the framework of our legal system,

spk_0 a common sense originalist maybe a practical originalist. These are all terms that have been used

spk_0 to describe him. But I think the overall point here, he would push back on some of these

spk_0 late stage problems with originalism by saying you're trying to have originalism solve too much,

spk_0 to do too much. You think it provides answers to every question. Originalism is you know a place

spk_0 you go, you learn some things, and then you may still need to keep going on, but you don't like

spk_0 hold on to originalism white knuckled and you know shake the magic eight ball until it gives you

spk_0 the answer that you need no matter how ridiculous that may be. And you know we've seen him

spk_0 in cases like I forget whether it was the Kylo case about the infrared heat seeking or the

spk_0 Jones case about the GPS tracking, but in one of them, oh no, maybe it was the violent video game

spk_0 case. Anyway, he and Justice Alito did not really share their views on originalism in one of the

spk_0 oral arguments, Justice Scalia and Justice Alito, right? They're like they can be lumped in together

spk_0 by a lot of people, but actually they saw each other as not particularly compatible originalists

spk_0 in a lot of cases. And so Justice Scalia asked some question oral argument and Justice Alito famously

spk_0 jumps in and says, what Justice Scalia is trying to ask is what would James Madison have thought of

spk_0 video games and did he enjoy them? And you know it gets this big laugh on the crowd, but that's sort

spk_0 of actually Justice Alito's originalism in a nutshell, which is look at some point these analogies

spk_0 get so strained and you do have this problem of how general or how specific the analogy is supposed

spk_0 to be and like, originalism can't do all of that for you at some point. You've got to use some

spk_0 common sense. Now on the other side of that coin, I think he was also criticizing the common

spk_0 good constitutionalists who are like, Af originalism, this is stupid. We should just sort of

spk_0 look to the skies and decide what the common good is that we think should be implemented

spk_0 on American society, something much closer to living constitutionalism for the right. And Justice

spk_0 Alito's point to that is like, no, no, no, no, no, that's for insecure originalists. You're not

spk_0 secure enough to say like, look, we go to the original understanding at the time of ratification,

spk_0 it is a contract, but if the contract runs out, you use your brain. And Justice Gorsuch has said

spk_0 this too, right? Like, there's going to be some amount of judging involved. That's just the way

spk_0 it's going to go. If this were a formula and we were mathematicians, like, this would all be much

spk_0 easier. We're not. And that's why we don't always get to the same answers. And that's why in a case

spk_0 like Rahimi, you've got somehow, you know, 27 concurrences in an eight-one decision. So David,

spk_0 what were some of your fun takeaways from this before we go through a glossary of judicial

spk_0 philosophies that we can maybe assign judges or professors to?

spk_0 So I think your bottom line on Justice Alito's speeches correct. I think his argument is that

spk_0 some originalists are trying to make originalism do too much work or solve every problem. And he

spk_0 wants to take a more pragmatic approach. Where yes, you do look at the original public meaning of

spk_0 some language, but maybe also look at outcomes. And if an outcome is wrong, maybe you don't

spk_0 necessarily say, well, I'm going to be outcome oriented in a rule of certain way because I like

spk_0 or don't like the outcome. But maybe it means that you made a misstep in your legal analysis. Sort

spk_0 of check your work. There is also the issue of precedent or story decisions. So I think what he

spk_0 wants to do is instead of treating originalism like this overarching philosophy that can resolve

spk_0 every case, I think he wants to use original public meaning as a factor in judicial decision-making

spk_0 and a very, very important one, but not the sort of holistic, all-controlling system for resolving

spk_0 anything. Now, I think that the version of Justice Alito originalism, and I, you know, like whatever

spk_0 you would call this, I think it's kind of open to some of the same criticisms that originalists

spk_0 make of non-originalist philosophies. Because if you end up taking into account all of these other

spk_0 factors, then isn't it just judges making stuff up? And again, we can argue over the value of

spk_0 judicial restraint in originalism. And some people have sort of moved away from the sort of

spk_0 originalism, one-point-o idea that well judicial restraint is a really important part of this.

spk_0 But I think all originalists share an aversion to not just making stuff up. And when I was reading

spk_0 the notes you shared with me about the Alito talk and about all the different factors that can come

spk_0 into play, it kind of occurred to me. This is starting to sound briarian. This is kind of starting

spk_0 to sound like, oh, like, yeah, when people ask Justice Brow, what's your philosophy? Well, I do a

spk_0 little bit of this, and I do a little bit of that, and it's sprinkling some paprika. Like, it sounded

spk_0 kind of a lot like that. And let me actually kind of, if you were to sort of level a criticism of

spk_0 Justice Alito, I think a lot of folks on the left would say that he is of the conservatives the most

spk_0 result oriented. And progressives will challenge you, find me a case where Justice Alito sided with

spk_0 the liberals with other conservatives on the other side, or find me a case where he voted against

spk_0 the conservative policy outcome. And I think it is probably fair to say that of the six Republican

spk_0 appointees, Justice Alito has probably voted for the outcome that will be regarded as liberal

spk_0 or progressive or democratic or whatever. He's probably done that the least of all of them. And so

spk_0 you do have to wonder, well, is the reason that he does this because he doesn't follow originalism

spk_0 to where it leads, including some results that say benefit criminal defendants. You know, Justice

spk_0 Gorsuch, Justice Thomas, there are originalists, self-proclaimed identified originalists, and

spk_0 they vote for criminal defendants way more than Justice Alito. So I think the criticism

spk_0 of the Alito philosophy is it's just too malleable and it just allows a judge to get to the

spk_0 results that the judge likes. Yeah, Adam Feldman over in a empirical scotus has some interesting

spk_0 stats that back up exactly what you said, David, not only looking at where he sides with his fellow

spk_0 justices, but also looking at the types of cases he overturns from the lower court and who made up

spk_0 those judges on that panel, even there it bears out as well, describing Justice Alito as a

spk_0 burkyian originalist, I think is going to be the best way to predict your Justice Alito outcomes,

spk_0 which is, right, this idea from Burke is that you don't go back to first principles, you don't

spk_0 always decide on theory. You know, if something's been there, it's sort of the Chesterton's fence

spk_0 of judicial philosophies. Like if something's been there for a long time, you're probably like,

spk_0 yeah, that's probably a good idea. Like revolutions in the law, revolutions in politics are bad.

spk_0 Aim small, miss small, is the burkyian originalist. So here are the six areas that Justice Alito

spk_0 said originalism could go wrong. Number one, the common sense point we talked about, like don't

spk_0 accept outcomes that are insane. It probably just means you were doing originalism wrong.

spk_0 To your point, David, that's going to, though, result in a lot of like, well, I don't think

spk_0 this outcome is good. So I must have been doing originalism wrong. Number two, absence of

spk_0 explicit text is not decisive. The structure of the Constitution exists. It's not always just

spk_0 about text. Three, I carry an originalism as an Icarus flying too close to the Sun. Don't lose

spk_0 sight of what provisions meant to those who adopted them. Now, this is originalism in its most

spk_0 pure form in many ways. But I think he's here making the point of originalism versus textualism,

spk_0 if you will, or what Justice Barrett has said about original expectations. Don't control.

spk_0 I think Justice Alito's like, yeah, sometimes they do. Okay. Number four, archaeological originalism.

spk_0 He does not like digging back through old 17th century cases to justify results. Using an example

spk_0 of Torres versus Madrid, a woman's driving a car. She tries to ram the police, police shoot her,

spk_0 she drives 75 more miles and seeks medical attention. Was she seized under the Fourth Amendment when

spk_0 shot? And the majority relied on a star chamber case from 1605, where a bailiff arrested a

spk_0 deader by touching her with a mace to take her to deaders prison. Alito disagreed with the

spk_0 majority's use of this obscure case to justify what he viewed as a result that defied common sense

spk_0 that touching a suspect resulted in a seizure without actually seizing the suspect. Okay.

spk_0 Number five, where originalism goes wrong. Originalism unmixed with non-originalism. He thinks you

spk_0 can do both together. And number six, philosophical originalism. The philosophy of the founding

spk_0 era as a substitute for what founding era legislatures fought. I mean, but we just run into so many

spk_0 problems there. As we always do when we talk about originalism, David, but let me run you through

spk_0 some other types of judicial methodologies. And maybe methodologies are better term than philosophy.

spk_0 Okay. Living constitutionalism. This is the idea that the Constitution evolves with each succeeding

spk_0 generation. And it is up to the judges of that generation to apply the broad principles laid out in

spk_0 the Constitution to a modern society's problems. Chief Justice Earl Warren, right? He's like

spk_0 you're living constitutionalist, constitutionalist. Do you think there's anyone on the court today

spk_0 who would say they're a living constitutionalist? No. I kind of used to joke about this philosophy as

spk_0 well, this is the belief in the living, breathing, stairmastering constitution. I just think that nobody

spk_0 wants to be associated with that, even very pragmatic justices. And look, I know that she has sort of

spk_0 walked it back or put some caveats on it. But remember what Justice Kagan said at her confirmation

spk_0 hearings, we are all originalists now. And again, you can overread that. And again, she has

spk_0 cabined it a bit. But I think what she's saying is, look, even I am not going to get up here and

spk_0 tell senators, oh, I believe in a living constitution. I think any judicial nominee, not just for the

spk_0 court, but for lower courts who said that today, we'll get voted down. Okay, formalism. This is the

spk_0 idea that a judge has to start from the very beginning, right? Think jurisdiction, standing,

spk_0 statutory authority. The most formalist opinion from the court, maybe in history, but certainly

spk_0 modern history I can think of is the nation universal injunction case, Trump Vikasa about the

spk_0 birthright citizenship order that Justice Barrett wrote. And I think Justice Barrett is the epitome

spk_0 of a formalist justice. I feel like formalism is on the rise in legal conservative world, David,

spk_0 maybe because of Justice Barrett or maybe she's the symptom and she's the result of the rise of

spk_0 judicial formalism. Do you think there is something uniquely conservative about formalism?

spk_0 I think so in the sense that look, conservatism is very committed to the rule of law and to doing

spk_0 things the right way. And I think formalism adheres to that and embodies that. And I think one of the

spk_0 things that I personally like about Justice Barrett as a jurist is I think you could describe her as

spk_0 a lawyer's justice or a judge's justice. She wants to get things to make sense doctrinally. She wants

spk_0 the pieces of the puzzle to fit together nicely. I am all in favor of crossing those

spk_0 teas and dotting those eyes. So for example, in terms of formalism and the universal injunction issue,

spk_0 well a lot of people say, well, what's the big deal? You can just get there by class actions. Well,

spk_0 it is a big deal because if you agree with her opinion in Trump V Casa, one thing is allowed

spk_0 under the laws and a constitution of the United States and one thing is not. And so I would

spk_0 probably describe it myself as as a formalist. And I think you're absolutely right that Justice Barrett

spk_0 is maybe the foremost formalist on the court today. Who's the foremost originalist?

spk_0 I suppose you would probably say Justice Thomas because I guess he's been arguing for it

spk_0 longer than anyone. And I think he is so known for the history stuff. And a lot of people think

spk_0 of originalism as the history stuff. So I'd probably say him. But look, if you want to,

spk_0 you know, but there are lots of flavors. And I think this whole issue of the finer points and

spk_0 disagreements of late stage originalism, I think you can make a case for, you know, not

spk_0 justice, Alito or the chief, partly because of reasons we've already given. But I think all of the

spk_0 remaining four justices can stick acclaim to my version of originalism is best.

spk_0 I think back when I was in law school, we were told originalism is for the constitution.

spk_0 Textualism is for statutes, but really they're the same thing. It's just, you know, we don't say

spk_0 originalism because what if the statute was passed like 10 years ago? That's sort of a weird phrase

spk_0 for it. But what you are doing is the same activity. It's just the text of a statute or the original

spk_0 meaning of the words of the constitution. I don't know that that's what we think of as the

spk_0 difference between originalism and textualism anymore. A, do you think textualism is now inherently

spk_0 different than originalism and who's your textualist? I may actually be somewhat sympathetic to your

spk_0 original version of the distinction because you're looking for original public meaning. And if

spk_0 you're dealing with a statute, well, you're looking at the original public meaning at the time that

spk_0 the statute was passed. Now, of course, for this, I kind of think of Bostock V Clayton County about

spk_0 employment discrimination laws as to LGBTQ people. And of course, you had Gorsuch on one side and

spk_0 he calls himself an originalist. And then you had, say, Justice Kavanaugh on the other side of that.

spk_0 He calls himself an originalist. But David, let me, let me break this out a little more. Like, I think

spk_0 that distinction was a really easy way to think about the difference between originalism and textualism.

spk_0 I think today that originalism is about justice, Thomas's text history and tradition. You're looking

spk_0 at those historical analogs. What were the laws being passed that would have used the same words?

spk_0 What did they think they were doing? Whereas textualism now is like, well, we don't care

spk_0 what their expectations were. The text says what it says. And so those historical analogs may not

spk_0 do us a lot of good if the text like equal protection of the laws means that or in the Bostock case

spk_0 because of sex. Sorry if you didn't think you were including gender identity or sexual orientation.

spk_0 But the text says what it says. I think that's a textualist argument more than an originalist

spk_0 argument. Because to me an originalist would say they did not think this included gender identity

spk_0 and sexual orientation. If you wanted to include that, no problem. But Congress just needs to amend

spk_0 Title VII. That of course was the whole issue in Bostock where people were saying, well,

spk_0 you could say, I forget who was maybe. It might have been Justice Alito. He said, oh, well,

spk_0 you're like a pirate ship and you're flying the flag of the good guys. You're Justice Gorsuch,

spk_0 your claimant to be an originalist, but not really. People said, well, he's taking a more textualist

spk_0 view on the basis of sex because of sex. But let me give you my pet theory on Bostock. So take

spk_0 the case. And again, I chylo or kilo. This was the case about the, you mentioned it earlier. This

spk_0 is the case about fourth amendment searches and thermal imaging. And Justice Scalia, who voted for

spk_0 the criminal defendant in that case, said, look, thermal imaging is a search. And even if they don't

spk_0 have thermal imaging at the time of the founding, he imagined well, would we, with the founders of

spk_0 viewed it as intrusive or a search? If you could see, you know, when the lady of, again, this is

spk_0 gendered, this is Justice Scalia, not me, when the lady of the house is drawing her back, like,

spk_0 if you had technology back then that revealed that, wouldn't we regard that as a search? So now,

spk_0 fast forward to Bostock. Now, actually, if you look at transgender history, yes, there actually

spk_0 was some transitioning back then, but it was, it was, it was really not a thing back then. So

spk_0 here's my kind of theory. You can be an originalist when it comes to statutes. But if the issue being

spk_0 contemplated was just, you know, it's one thing if you do something that, you know, the language,

spk_0 the original public meaning of the language rules out. But I think you can argue that with Bostock,

spk_0 the legislators weren't even thinking about, you know, gender identity at the time. Now,

spk_0 if you asked him as an opinion poll, well, do you think transgender people, you know, should,

spk_0 should get employment protections? And, you know, if you said, oh, you know, in 50 years, or I don't

spk_0 know, however many years there's going to be this ability to do this, well, then, you know,

spk_0 they were more conservative back then. So yeah, they probably would have voted against it. But

spk_0 that's almost like a separate question. The original public meaning of the that language in

spk_0 title seven did not resolve the Bostock question. It was like the thermal imaging and the fourth

spk_0 amendment. It was to be determined. So I don't, I think that I would use sort of Kylo Kilo analog

spk_0 to look at Gorsuch's opinion in Bostock. Nobody was thinking about transgender things at the time.

spk_0 The law was passed. The question then to me becomes like, okay, well, then which side gets the status

spk_0 quo? Do we read it in and let Congress take it out? Or do we read it out and let Congress put it in?

spk_0 Either way, Congress could change this tomorrow if they wanted to. So for anyone who hates Bostock,

spk_0 go to Congress. Or if you're mad at the judges, the answer was, well, the judges should have let

spk_0 it go to Congress. I don't know. I get those cases are a big deal because Congress doesn't do

spk_0 anything anymore. But this goes to the Congress to your job point. They wouldn't be a big deal if

spk_0 Congress actually reacted to Supreme Court decisions that they used to all the time. Okay, I want to

spk_0 touch on really quickly just two law professor theories. What I think now are called would be referred

spk_0 to as law professor theories legal realism. This is the idea that there is no objective methodology

spk_0 for determining what a law means that actually restrains the biases of judges. So stop trying to make

spk_0 fetch happen in legal positivism. Laws are created by people through governments and societal forces.

spk_0 They don't exist absent human structures. We'll put on the other side of that natural law.

spk_0 Like just the opposite of legal positivism. All humans are born with a sense of moral morality and

spk_0 ethics, regardless of their society and time. Laws therefore are justified by these inherent

spk_0 moral truths. Do you think any justices would say that they're legal realists or I don't think any

spk_0 current justice would describe themselves as a legal realist in this sense. But I kind of think

spk_0 of legal realism as having sort of a strong form and a weaker form. I think the more modest claim

spk_0 of the legal realist would be look judges are people too and priors and prejudices and human

spk_0 factors like for example whether you're a colleague in Sultidue by saying stick your head in a paper

spk_0 bag. Human factors will affect judging and I think that was sort of the initial insight

spk_0 of legal realism back in the day that it's not just all up in the ether. But I think the strong

spk_0 form of just well it's just judges making stuff up. I mean now you're kind of it's almost sort of

spk_0 like this sort of postmodern thing of well that's all just power at the end of the day and judges

spk_0 can do whatever the heck they want. And that kind of super strong version of legal realism I

spk_0 think everyone would reject. All right so then let's move on to the liberal side of judicial

spk_0 methodologies. Justice Breyer of course has described pluralism, practicalism as you said it's

spk_0 a little bit of everything. Porin what helps? Standards are good we don't need bright line rules

spk_0 for everything and Justice Breyer lives for a great standard and a five part test.

spk_0 A better if it's a nine part test honestly. Do you think that any of the current

spk_0 justices on the court subscribe to the Justice Breyer model and if not

spk_0 what modifications would they make what terms would they use because whereas we hear from

spk_0 five of the conservatives that they are originalists again not from the Chief Justice.

spk_0 What are Kagan, Jackson and so do Mayor? What did they say they are? So I think they might actually

spk_0 not be averse to some kind of label of pragmatism or practicalism or what have you. I think that

spk_0 that is regarded as an acceptable theory. Now I think critics of it would say well that's just

spk_0 judicial activism but you've sort of put lipstick on your pig there but I think that

spk_0 I think that those terms, practicalism, pragmatism, what have you I think they are not so

spk_0 out of favor or out of fashion that people would say you're crazy to accept them. Now look if

spk_0 you're at a confirmation hearing I would probably still advise you against using them but

spk_0 take Justice Jackson who clerked for Justice Breyer. I think that she would probably if you ask her

spk_0 say well do you subscribe to Justice Breyer's approach that's pragmatic that's practical. I think

spk_0 reminded of her descent in Casa the Universal Injunctions case where she kind of says I'm roughly

spk_0 paraphrasing very roughly you know if there's a right there has to be a remedy for it that's a very

spk_0 pragmatic approach that's not getting hung up on the formalism or the niceties it's basically saying

spk_0 yeah there's something wrong out there well judges can fix it. All right David Lat.

spk_0 This has been a real treat to have you thank you for joining advisory opinions.

spk_0 Thanks again for having me Sarah. That's it for us today. If you like what we're doing here there are

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