Well get started. Good morning, everyone ip im elizabeth slattery, legal fellow at the Heritage Foundation and this is a panel on the past Supreme Court term. So the Supreme Courts next oh, im sorry. The top one . Okay, there we go. The Supreme Courts next term starts . Just a few weeks but were here to reflect on the past term. I submit that the october term 2018 will more likely be remembered for Justice Brett kavanaughs confirmation hearings than for any particular case the court decided, and its too early to make sweeping statements about the impact of president Donald Trumps nominees to the court, though the rapid destruction of america, their opponents foresaw has yet to occur. Justices Brett Kavanaugh and neil gorsuch have however lived up to the chief justices declaration that we do not have obama judges or trump judges, bush judges or clinton judges. Like their predecessors, kavanaugh and gorsuch are their own men at times bucking expectations of how a trump judge will vote. Theyre not cookiecutter republicans but thoughtful jurorists with independent views of the law and well explore some of that today. This panel will focus on the highlights of the past term, the most important cases such as the census Citizenship Question case and the political gerrymandering case and a few missed opportunities like the cases involving the nondelegation doctrine and deference to administrative agencies. But enough from me. Were fortunate to have with us today four distinguished panelists, and if i devoted the time their many achievements and positions deserved, that would easily take up our 90 minutes here, so ill keep their introductions extremely brief. Hadley arcus is the professor at Amherst College and founder and director of the James Wilson Institute on National Rights and the american founding. Hes authored many books on politics, political philosophy and jurisprudence and articles appeared in professional journals as well as popular outlets including the wall street journal and national review. John eastman is professor of law and Community Service and director of the center for constitutional joourisprudence the Fowler School of law at chapman university. Before entering academia, john served as a law clerk to Justice Clarence thomas and also practiced at the Law Firm Kirkland and ellis. Matthew frank is the director of the simon center on religion and the constitution at the Witherspoon Institute and Professor Emeritus of Political Science at radford university. Hes also a visiting lecturer in politics at princeton. Matt has written a number of books and articles about the court and constitutional law, and Anthony Peacock is a professor of Political Science and Department Head at utah state university. Hes also the director of the project on liberty and american constitutionalism at utah state. Tony has written numerous books and articles about the court, the federalist papers and Voting Rights. So each panelist will come up to the podium and make a presentation of about 15 minutes and then well open it up for discussion and audience q a. So with that, im going to turn it over to tony. All right, thank you, elizabeth, and ill try to stay to my 15 minutes. Ive got my watch here. Just let me know if i go over and id like to thank joe postell and the Claremont Institute for inviting me to appear before this very distinguished panel, and thanks to all of you for showing up and making us feel like we might actually have something important to say. Appreciate that as well. As elizabeth mentioned, were going to comment on hopefully relatively Different Cases from this last term. Im going to comment primarily on the partisan gerrymandering case and the department of commerce versus new york which was the Citizenship Question case. This years theme at the apsa is populism and privilege. Both have come together in appeals by legal academics, Public Interest law firms, Political Parties and others that have pleaded to have federal courts intervene and yet other political issue in the name of fairness and that issue in this case is political gerrymandering. In rucho versus common cause, the case that considered that issue, however the court rejected such solicitations and ruled that partisan gerrymanders were not political questions that were beyond, that were nonjustiable political questions beyond the reach of federal courts. During most of the panels we have on the Supreme Court we discussed just how much important political issues the federal judiciary increasingly decides to take on but rucho was a refreshing change from this trend where the court washed its hands of an issue, partisan gerrymandering roughly the last 45 years, it has suggested it just might take up. As the court concluded in rucho and i quote here, what the appelles and decents speak is judicial power, the expansion of Judicial Authority would not be in to just any area of controversy, but into one of the most intensely partisan aspects of american political life, that intervention would be unlimited in scope and duration. It would recur over and over again around the country with each new round of districting for state as well as for federal representatives and the unelected and politically unaccountable branch of the federal government would decide the issue. This is the nub of the dispute rucho. Who gets to decide the dispult of gerrymandering. In rucho voters and other plaintiffs in North Carolina, in maryland, filed suit challenging their states post2010 condwreco Congressional Redistricting maps as unconstitutional political gerrymandering. North carolina was brought by democrats claiming the states redistricting maps discriminated against democrats, whereas the maryland litigation involved the reverse, republicans claiming the states redistricting map discriminated against the republicans. For those pining for bipartisanship in litigation, this was your case. As the court in rucho pointed out as far back as 1962, in the reapportionment case, baker versus carr, the supremes held the political question was a case that lacked a judicially discoverable and manageable standard for resolving the issue at hand. Last year, in gill versus wh whitford which was decided june of 2018 and the plaintiffs from wisconsin were determined to lack standing, in other partisan gerrymandering case the court emphasized ever since baker the unresolved question of partisan gerrymandering cases whether the cases involved a legal right resolvable according to legal reasons or was a political question that had to be resolved elsewhere. In cases davis versus vandemere, the 1866 decision it suggested cracking and packing voters from opposing parties into districts might raise a partisan gerrymandering claim. Even in vandemere the justices were so divided that no court standard for partisan gerrymandering ever emerged in the case. There was a 333 split in that case. So no court standard emerged from the case, and thats been the situation now for over 30 years. In rucho the majority concluded there was no constitutional basiness for partisan gerrymandering claims either on the basis of article one section two or in the elections clause of article one which gave power of representation to states first and congress set. In 2004, excuse me, in the veath decision, the court pointed out that neither section two nor section four of article one provided again im quoting here a judicially enforceable limit on the Political Considerations that the states and congress may take into account when districting. In other words the skys the limit. Rucho added that the protection clause, the First Amendment and the guarantee clause of article four also provided no constitutional basis for relief and partisan gerrymandering cases and all these had been advanced as constitutional bases and accepted by the courts for partisan gerrymandering claims by the lower courts in rucho, which was the North Carolina case, and in lamone, which was the maryland case that the court was considering in rucho. All of these constitutional bases for partisan gerrymand gerrymandering claims were accepted by Justice Kagans dissenting opinions on behalf of herself and three liberals on the Supreme Court. The main problem the court maintained the plurality set in the veath decision any standard for resolving partisan gerrymandering claims must be grounded in a limited and precise rationale and be clear manageable and politically neutral and no such standard exists according to the court, and theres no way to decide how much is too much. The veath plurality also emphasized that the problem here is not so much about restraining the political branches of government as to how to, im quoting from the veath decision, meaningful explain the discretion of the courts in decision making. Its not just about the political branches. Its about the judiciary as well. The rucho court did concede that the supremes had intervened in redistricting cases in two scenario, the one person one vote decisions and the racial gerrymandering cases. I would submit that the courts mandate of racial redistricting to comply with the Voting Rights act going back exactly 50 years now the equal protection challenges to that same racial redistricting that resulted in the racial gerrymandering cases, the court had to address beginning most importantly with shaw versus reno in 1993, constitute exhibit a why american courts do not want courts to decide political disputes political racial or otherwise. Compliance with the Voting Rights act was the reason secretary of commerce wilbur ross gave to reinstate the Citizenship Question on the 2020 census which was what theish auto you was in the new york case. Rucho might have indicated restraint on the part of the court in interfering in political disputes, department of commerce versus new york also decided in june appeared to indicate quite the opposite. A court intent on injecting itself into the political fray to keep the Trump Administration from putting a Citizenship Question on a 2020 census. In both rucho and new york, chief Justice Roberts wans the author of the courts opinion. In rucho an opinion for the conservative members in new york for the courts more liberal members at least on the key issue in part five of the decision where roberts and the four liberals on the court rejected secretary ross contention that compliance with the vra was the real reason for putting the question on the census. Now is the key issue in the case. Roberts and the more liberal members of the court thought this was pretextural in other words ross wasnt telling the truth. Ross had indicated shortly after taking office in early 2017 that he wanted a Citizenship Question on the census but it was not until march 2018 that he said the doj, the department of justice, had requested the question in order to ensure better compliance with the vra. The court acknowledged there was no legal or constitutional impediment to ask a Citizenship Question on the census. Theyve been asked on every census but one between 1820 and 2010, of some segment of the population. It was also perfectly consistent, the court said, to ask such a question with the enumeration clause of article one section two of the constitution and section 6c and 141f of the census act, not to get too technical here, as the court acknowledged. However, since the administrative procedure act allowed for judicial review of decisions by the secretary of commerce, and it was suspected that ross had not been perfectly honest about the reason for the Citizenship Question on the census, meaningful judicial review as chief roberts put t could not be had until the case had been remanded to ross motives. The courts reasoning in the new york case was criticized by Justice Thomas, joined by justices gorsuch and kavanaugh, who pointed out that, excuse me, new york marked the First Time Ever that the court had invalidated an Agency Action solely because it questioned the sincerity of the agencys otherwise adequate rationale. The six standards that the administrative procedure act required an agency to follow in its actions, findings and conclusions didnt even allow the court to inquire into the question of pretext, as Justice Thomas highlighted, and pretext could not make up a subset of arbitrary and capricious review which was the standard of review that was used here, because it had to be based on the existing administrative record as earlier cases that highlighted not evidence that might come up on remand. Moreover the District Court already allowed an additional claim for discovery that went beyond the administrative record and the supremes in new york recognized may have been ordered in error. According to Justice Thomas, the courts decision opened up a whole new avenue of attack on executive action in future and arguably violated the separation of powers by enabling judicial interference with the enforcement of laws any time opponents of an executive claimed a pretext for a decision. In other words, new york would fundamentally transform the nature of Administrative Law, according to Justice Thomas. Finally, i just wanted to say i think ive got four minutes left. I can see, i know that im going to get gonged here shortly. Finally i just wanted to quickly mention two decisions that i think indicate some pushback against what are called nationwide injunctions or universal injunctions, and restrictions on executive power and National Security and immigration related matters. The first case is nelson versus preapp Justice Alitos march 19th decision that reversed the ninth Circuits Court of Appeals Holding and two District Courts preliminary injunctions that the respondents in the cases who were, excuse me, deportable for certain specified crimes were not subject to the immigration and nationality acts mandatory detention requirement because they were not arrested by immigration officials as soon as they were released from jail, thats a complicated decision, i wont get into the details but thats the first case i wanted to highlight. The second was the courts july 26 stay in trump versus sierra club which was the border wall injunction case. This case was about whether President Trump and his administration could use the National Emergencies act of 1976 to reallocate 2. 5 billion that congress earmarked for the pentagon to build a border wall. Judge hayward gillian, an obama appointed judge in the Northern District of california issued a nationwide injunction to stop trump from using the nea and the court stayed that injunction. As the wall street journal put it and the journal disagreed with the policy of using the nea to get around congress to build the wall, but it said the good news, im quoting was the high court was finally sending a message about the proliferation of National Injunctions by lower court judges. One problem with nationwide injunctions is that they are typically issued before the merits of the case are ever decided. In trump versus hawaii, the travel ban case from last year, Justice Thomas in his concurring opinion invited the court to curtail the power of single District Court judges usually in deep blue states, granting injunctions that applied nationwide. According to Justice Thomas universal or nationwide injunctions increasingly have become increasingly common and were taking a toll on the federal system, preventing legal questions from in his words percolating through federal courts, encouraging form shopping, and making every case a National Emergency for the courts and executive branch. He wanted to question this, but the court in its concluding remarks in the hawaii case last year said it didnt have to take up the nationwide scope of injunctions. In that case, thomas had suggested that there was no article three or equitable jurisdiction for such injunctions, and i think that its possible that a majority on the court might be willing to reconsider that opinion and the necessity of whether to reassess these nationwide injunctions. In trump versus sierra club, both justices thomas and Justice Gorsuch would have dismissed the District Courts certification for classwide injunctionive relief for reasons i wont go into and denied jurisdictions to hear the claims in the case. I think both preapp and sierra club suggest that there may be at least three other justices on the court that might want to consider nationwide injunctions at some point in the not too distant future and let me just 15 seconds. Okay, finish up say there have been 37 nationwide injunctions during the Trump Administration, and thats what Justice Thomas had highlighted had been a problem. This is a significant problem as far as hes concerned from the point of view of separation of powers and National Security issues in particular. Thank you. Thank you. [ applause ] john . Thank you very much. As senior fellow at the Claremont Institute, im particularly delighted to be on this Supreme Court panel. 20 years ago, we founded our litigation shop, the center for constitutional jurisprudence, which i run and almost from the beginning, we have been pursuing as one of our main goals a pushback against the Administrative State and a revival of the constitution separation of powers, and so you might think i would be depressed this year because two of those key issues deference to Agency Interpretations of its own regulations and the revival of the nondelegation doctrine were both up before the court this term, and our side lost on both of those, but far from being depressed, auto uhm actually quite ecstatic about how these two cases come out and im going to talk about those. The first one deals with the nondelegation doctrine, the nondelegation doctrine is tied to an obscure provision in the constitution hidden deep in it, article one, section one, clause one of the constitution, the legislative powers here granted are invested in congress, that means the law making that goes on in this country has to be done by congress. It cant be delegated to private actors or to unelected executive agencies, and what congress did in the sorna act, the sex offender registration and notice act, punted to the attorney general on the issue on whether the act would apply retroactively to people who had already been convicted of sex crimes, but now would have to register, and whether that would apply only to people convicted after the act was passed or would have retroactive effect, was punted to the attorney general, without any guiding principle whatsoever to decide whether he should extend the acts Registration Requirements retroactively or keep it only prospective. The theory on which the court is allowed vast delegations of lawmaking power to agencies, since the 1930s has always been did congress resolve the tough political questions and give the executive agency an intelligible principle that would control and guide the discretion as it filled in the details of the lawmaking power. The intelligible principle has turned out to be great in theory, but completely ignored in fact. We have great swathes of lawmaking power that are delegated to agencies to further the Public Interest, or to do things that are fair and reasonable. Barely any principle much less than intelligible one, this one didnt even have that, and so of the four questions presented in the petition for certiorari, the Court Granted cert on one question, should we revive the nondelegation doctrine or does the delegation violated nondelegation doctrine. The holding of the court was that the nondelegation doctrine really hasnt been revived. We ducked the issue. Now its an odd lineup on the vote, Justice Alito, who clearly has favored in the past the revival of the nondelegation doctrine, voted with the more liberal ring of the court to deny the nondelegation doctrine issue here. Now, that made it a 53 decision. Justice kavanaugh was recused from it, because he had not yet been seated by the time the case was argued in the first week of october. The case is not decided until the very last week of the courts personal. It was one of the longest courts sitting on the docket. Ive written an article called Justice Alitos strategic vote because think of what would have happened if he voted with neil gorsuch, a strong dissent, characterizing whats at issue and whats at stake in this effort to revive the nondelegation doctrine. If alito voted with gorsuch, a position he previously indicated he fully supports, we would have had a 44 tie, and kind of the inside baseball thing of the Supreme Court, 44 ties, neither the majority opinion nor Justice Gorsuchs strong dissent would have seen the light of day. We would have seen a one line the opinion of the Second Circuit here is affirmed by an equally divided court and we wouldnt have any hint of how seriously the revival of nondelegation doctrine that is under way was actually under way. Now, some have pointed out to me, including my good friend john malcolm at the Heritage Foundation, that they would have easily set that case for reargument, and then Brett Kavanaugh would have been able to participate and we may have had a different vote. So just politically i ask the question, given all that went on in the confirmation hearings for Brett Kavanaugh, did we really want the revival of the nondelegation doctrine to be with Brett Kavanaugh being the deciding vote in his first term on an issue about sex offender registration . Probably not. All right, so i think they punted on this. But the dynamics of the case were pretty obvious to everybody, including the party in the case who has filed a petition for rehearing and to have a reargument of the next term that will be heard that petition at the first Court Conference in september. So well know a little bit more about whether it was the subject matter they wanted to duck the issue on, or just the timing that they wanted to duck the issue on. Nevertheless, i count five votes for reviving a fairly stringent nondelegation doctrine, and we havent had that in about 80 years. I think this is a very significant development. And i want to play where it comes out and tie a little bit back into tonys comments. The nondelegation doctrine is central to the attack on President Trumps use of the National Emergency act to build a wall. There is not much constraint or intelligible principle on the president s exercise of that delegated authority either. The president s authority there might be a little stronger than the normal nondelegation case, because it deals with Foreign Affairs and international matters, but the one thing that should be absolutely clear, if we do revive a nondelegation doctrine, it ought to be across the board. It ought not to be, well we didnt mean to delegate authority to this president , even though were fine with delegating authority to every other president. So those are the kind of issues that were going to be confronting i think next term fairly quickly on nondelegation issue. The second big Administrative Law pushback case that we lost but that we won is kaiser versus wilke, and here was the issue on this socalled doctrine of hour deference should be overruled and the court held 414 no, it shouldnt be. Justice kagan though in defending stare decisis and the notion we ought to keep our deference in place really modified rather dramatically the way the hour deference doctrine had come to be playing out in the lower courts. So in her defense of stare decisis she kind of modified the case rather dramatically which was something that neil gorsuch in dissent pointed out. Hour deference is an agencys interpretation of its own ambiguous regulations written in support of an ambiguous statute under chevron deference that nondelegation combined with the deference combined with the double deference combined with the ability of agencies through guidance memos or whatever to effectively make new law is increasingly seen by several members of the court as a real threat to separation of powers. In fact, even seen by Justice Scalia before he passed away, who was the author of the hour deference doctrine as such a threat to separation of powers he announced in a opinion before he died that he would overturn hour at the first opportunity. He never got that opportunity, but neil gorsuch has taken up the baton rather dramatically, and i think Brett Kavanaugh in his time on the d. C. Circuit and even in the hints we get in some of his opinions, has taken it up as well. Just to kind of pick up on here, Justice Gorsuch in his dissent is just a lambasting of retaining this hour deference doctrine. A bare majority frinchz and hour lives on. Todays decision is more a stay of execution than a pardon and he calls it a fantasy, a paper tiger, linguistic hocus pocus, no more than an exercise of raw political executive power, secret intentions of the law, just in case there was a confusion where anybody thought he stood on this thing. Both of those these cases more broadly indicate a tectonic shift going on in the court, probably one started by scalia but hadnt taken as much root as it now seems to have. Justice kagan in her confirmation hearing famously said were all originalists now. I think were seeing a revival of texturalism but not just the kind of raw text but the original meaning of the text was and that the text controls more broadly. So we see a couple of cases warehouser versus u. S. Fish and Wildlife Service dealing with critical habitat down in louisiana over an area that was not capable of being inhabited by the critter that was at issue. Critter habitat must actually be habitat and neil gorsuch again last year in his famous, the justices always get a dog of a case to be their first opinion on the case, and his dealt with a fairly, you know, minor and mundane issue, statutory law, but he uses his first opinion last year to really assert this principle, and give us some indication of whats going to guide him on his time on the bench. It is of course our job to apply faithfully the law congress has written. It is never our job to rewrite a constitutionally valid statutory text under banner of speculation about what Congress Might have done, had it faced a question that on everyones account it never faced. Constant competition between constable and quarry, regulator and regulate kd come as no surprise in our changing world, but neither should the proper role of the judiciary in that process to apply not amend the work of the peoples representatives. That was in a case involving Debt Collection statutes, a pretty broadside criticism of what i think was, well, lets look at king versus burwell the second of the obamacare cases when chief Justice Roberts said the statutory phrase, exchange established by the state can also mean exchange not established by the state, and so this was a fairly bold move for a brand new justice first of opinion but i think it laid down an important marker about the importance of textualism. We also see in these cases a big fight looming fight over stare decisis. In kaiser the hour deference case neil gorsuch says its an odd stare decisis invoked by the majority when they are themselves completely altering the various way that the hour deference doctrine would be applied and going future, something very similar to that fight happened in planned parenthood versus casey, under stare decisi, they kept roe but radically changed the regime how it is applied. Nick versus township of scott an overruling of a longstanding Williamson County case. We see in Franchise Tax burden versus hyatt an overruling of a sovereign immunity case in nevada versus hibbs. Justice breyers dissent there says todays decision can only cause one to wonder which cases the court will overrule next, and in gambell versus United States, the court retained the sovereign, the dual sovereign immunity doctrine but Justice Thomas in a concurring opinion writes an extensive critique of the way stare decisis has come to mean an immovable notion to address the proper role of stare decisis, he says we ought not to elevate prior decisions that are patently or demonstrably erroneous over the text of the constitution, and heres his notion of recurring to text of what the law is rather than the words of a prior opinion, particularly with demonstrably erroneo erroneous, he uses that word several time precedence. He takes aim at planned parenthood versus casey which i suspect why every is aploplectic about stare decisis now. Let me close in my last minute the stare decisis fight is laying the groundwork for the fight most people anticipate quickly over abortion and the ongoing sta success of roe versus wade as super duper precedent that cant be touched whatsoever. We have several cases decided last term kind of with the court already starting to maneuver on those issues. G. Versus planned parenthood, the petition for certiorari was deni denied. It was an issue about private rights of action to challenge state determinations of qualified medicare providers, but one of the parties in the case was planned parenthood, so even though the abortion issue itself wasnt at stake, the case implicated that. We have june medical services versus g. Which upheld a stay of a District Court decision which in turn upheld louisianas abortion restriction law, it was similar to texas law that it listen struck down just two terms earlier in womens health, and so that one is still kind of pushed off a little bit, but the issues are there. And then i think most interesting box versus planned parenthood of indiana, the court decided fairly straightforwardly in a per curian decision of upholding indianas law dealing with fetal remains, but denying review on indianas law that it would be illegal to have sex or race or disability based abortions, and said we dont have a circuit split on thash uyet. We dont want to take it up yet but these things are clearly coming and you can see on almost every little case that has nothing to do with abortion, the court already maneuvering itself to decide kind of lay the groundwork for those. With that, my time has expired but i think those are the big tectonic shifts that were talking about now, and also will be talking about for several years yet to come. Thanks. [ applause ] dont worry, this is timed at 14 57. It should be said at the outset, before we review the box scores and the highs and lows of the year that the specter haunting our days really is that specter of federal judges reflecting the fevered theories of the left and the law schools using nationwide injunctions thinking they have a license to block virtually every initiative of a conservative administration, with the slenderist connection to statutes or no connections at all to any ground of the law, and they evidently see themselves drawn to the best schools as the Political Class that forms the regime. They look upon the works of the Trump Administration as just not have it. They will use any lever to block the moves of the administration, whether on immigration, environment, and this move works to bar any elected conservative administration from enacting its personeurs. It represents a virtual nullification of a regime of elections. It marks nothing less than a change in the regime, if we acquiesce in this. And as alito recognized even if the court slaps this down, thats not going to end it. David forte reminds us of socrates last words. It was a good hemlock, not a great hemlock. [ laughter ] this year on the court, it was not a great year, even though we had five conservatives on the court. The course was paved in the character of our civic life in the hearings that brought forth and fifth conservative vote but the mixed not exactly did not comes to produce for us dancing in the street. Even when the cases came up in my rights the right way for the wrong reasons. Justified on the ground the christian meaning of a symbol had been washed away over time by a culture that found the cross familiar, as it sees to take with much seriousness the christianity that it marked. The decision on the case of gerrymandering turned i think on the right way but that one that causes most of us to shake our heads was john roberts switch to knock out that question of citizenship on the census, the decision that gave the judges new grounds for putting the kibash on executive orders if they expected those decisions were gasp, affected by dark and political motives. But apart from guessing over the chief justice in this move, we have the striking cluster of cases in which Justice Gorsuch was going over to join the liberal side with four conservatives in dissent. I register here my own deep concern for the tension thats manifested itself this year between two of our friends, justices alito and gorsuch. Their differences have been coming mainly in the criminal cases, but the tension is expressing itself and the language has become more colored. In the gambell case on double jepcy, Justice Gorsuch accused alito of committing a desecration of federalism, and alito responded in turn that the dissent with gorsuch writing fundamentally misunderstands the governmental structure established by our constitution, but the language does get more colored and with cspan, i think ill withhold it right now. In the haymond case gorsuch struck down the judges exercising discretion under programs of supervised release and returning prisoners to jail for violating terms of their release, putting people in jail, he argued, should require the judgment of a jury. Through the print we could almost hear Justice Alito xwr d grinding his teeth. Alito pointed out that in 2018 federal District Courts ajude dated 16,946 revocations of supervised release, theres simply no way, he said, youre going to be able to impanel enough juries to adjudicate all these cases and terms that are consistent with the sixth amendment and the confrontation clause. But the deepest disappointment for me this year as my friends know, building now over the past two years, has been the decisive move even of Justice Alito, the conservative judges into the stance of moral relativism in the regulation of speech. The shift was made by Justice Alito two years ago in metall versus tom and the question of dregtory or insulting names for trademarks. Up to that point alito was the only judge holding really to the logic of the famous old chaplinski case which was built on the firmest understanding of how we are constituted by nature and the nature of ordinary language. As aristotle reminded us, human beings can do more to emit sounds of pleasure or pain. We can give reasons over matters of right and wrong. One way or another our language will reflect that sense of things. By settling on the words at the moment that would carry the moral functions of praising and blaming, commending and condemning, and within those words a sense of insult or assault, for the language to function, the words that carry those meanings would be readily understood by Truck Drivers and construction workers as well as by lawyers. We could give a cluster of words to ordinary people and they would have no trouble marking the terms with the expressive acts instead of words of assault against words that were innocent around the border. You can try these give them a cluster of words, the n word, kite, bastard, wop, urologist, meter maid, people have no trouble in identifying the triggered words. Sam alito was the sole holdout for several years back, when his colleagues cast the protection of the First Amendment over reverend phelps and his gang demonstrating of a funeral of a dead marine with signs saying sempe fi fags and thank god for dead soldiers. In the case he did a turn and finally put himself in the current that has been carrying his other colleagues including our late friend scalia. The key line came as Justice Alito embraced the passage from the flag burning case and said this willingness to make judgments on derogatory names and trademarks offends a bedrock First Amendment principle, speech may not be banned on the ground that it expresses ideas that offend. A year later, gorsuch and alito projected the same relativism now into the domain of religion with the masterpiece baker case. Justice it is the proudest of our pure speech jurisprudence we protect speech we hate. It must be the proudest boast we protect religious beliefs that we find offensive. The shift was simple but unsettling, for the implication now was that offense isnt entirely subjective. The different words are modes of expression, they offend people for reasons that may be wholly personal and what is ruled out then is that something may indeed be expressed or done in that the speech or expressive act like the burning of crosses that may indeed be offensive in principle preside principle. The lines brought back the scenes from 40 years ago when i was invited in by the aclu, to state the other side of the aclus position, in this case of nazis, a group of nazis parading in skokie, illinois, through a community contains many jews who survived the holocaust and they declared the First Amendment protects all ideas, popular or despised, good or bad. In this translation, it was a matter of being popular or despised, to be despised was merely to be unpopular. It was no part of dave hamlins understanding that certain things may in themselves be in principle despicable, and now this position, this of the aclu seems to be settling now as the position even of conservatives on the court. During the debate over the nazis in Skokie Dave Hamlin said we must be free to hear the nazis because we must be free to choose the in a itsies but the freedom to choose the nazis in free election spraying of course from that proposition, all men are created equal, the only rightful government over human beings derives from the consent of the governed, but the nazis with their racial principle, rejected at the root that founding premise, and with it the regime of free elections. To say it was legitimate to choose the nazis in an election was not only to choose the party that would end free elections, it would sweep away also that regime of absolute freedom that the aclu treasures. This is a spiral in to incoherence for on the principle of more relativism theres no ground this freedom as a good which has a moral claim to be preserved. Justice alito sees himself as trying to cast a wider zone around the protection of speech because he has in mind the ways in which political speech has been repressed on the campuses in the country, but as a late stan ellis used to say the problem with pragmatism is that it doesnt work. [ laughter ] this move to relativism will not do anything to protect conservatives on the campuses. The doctrine will remove the moral ground for defending our own position. A seasoned lawyer, a little shift, a season lawyer friend told me 40 years ago in new york you cant have obscenities in the titles of corporations. If you did the yellow pages would be filled with items such as the American Tobacco company. The yanko case this past term challenged that longterm law when the Trademark Commission applied the standards, the company taking it self to the edge with a product called fuct. I wrote in this case in the wall street journal an opposition to my, the views of my libertarian friends on the board, and they gave me a good natured ribbing in print when the court came down on their side with this matter of scandalous or obscene names and gave me the compliment of noting as Justice Alito wrote his concurrent opinion in part of a letter to me. He picked up a critical part of the teaching in chaplinski ive been pressing, justice murphys line that these obscene and insulting words were not necessary to the exposition of ideas, they could be banned without diminishing it in any way, the freedom to make a substantive argument. Mr. Rosenfeld in new jersey at a Parent Teacher meeting has oneed ajective, motherfing and to tell rosenfeld to stop using that word for the sake of avoiding the degrading climate of discussion to do that is not to deprive rosenfeld of his freedom to make the most searing substantive critique of the school board. Thats why the application of the standard in chaplinski would leave us with the widest freedom of speech in contesting the most controversial subjects in our politics. Robert breyer, and societomayor were convinced this could contribute to the further coursening of the culture and society mior said the awful n word would make its way into the name of companies and trademarks. Alito thought as she did, this could be avoided with the statute directed to screening this vulgarity, still he was convinced that the court was not embracing moral relativism. The reading of the case was undercut by Justice Kagan and her opinion for the majority. The Trademark Office, she said, in way of indictment h rejected remarks reflecting support for al qaeda, the bombing of civilians and other terrorists acts are shocking to a sense of decency but at the same time the Trademark Office approved registration of a mark with the words war on terror memorial. For Justice Kagan viewpoint neutrality evidently means we must treat on the same moral plain or legitimacy the killing of the innocent and the opposition to the killing of the innocent. Now if that isnt moral relatively, i think words have lost their meaning. But what was the more precise test that Justice Sotomayor and breyer would bring, would urge the authorities to use in order to avoid the deepening vulgarity of our public life . The statute enjoined the office to refuse trademarks to immoral or scandalous matter. All the judges found these words too broad. What do they offer instead . Sotomayor suggested that scandalous can instead mean simply indecent, shocking, generally offensive, and she consulted the dictionaries to say by scandalous it means shocking to the sense of truth, decency, propriety, but then in turn, what do indecent, improper and disgraceful mean . Why would they mean anything different from what the drafter was getting at by saying immoral scandalous . But even more telling is what the Trademark Office did in applying the statute. They asked whether substantial part of the public would find the mark shocking to the sense of truth, decency, pro priority, giving offense to moral feelings, in other words, the Trademark Office was interpreting immoral or scandalous essential lay long the same lines with the same words used by sotomayor, and breyer, and as they backed into a common sense understanding of what was meant by obscene insulting, shocking, they were essentially backing in to the lives of the old chaplinski case as they are compelled to mark back into them, for theres no way of getting around them. If the judges had spent a little bit more of their time as undergraduates cultivating some reading in philosophy, they might have read portions of thomas reeds classic 18th century work, and the act of powers of the human mind. Reed century work on the act of powers of the human mind. They would have learned why it would not be really possible to redraft that statute in the way that Alito Robinson bryer wanted it. Reed recalled how philosophers such as david hum kept finding things. The notion of an active power is clear, simple, evident that people have the active powers to cause their own acts to happen that its taken for granted and alludes any attempt to supply a logical definition. He said we cannot give logical definition of thought or duration, of number or of motion. We cannot give a further deaf nation without simply using synonyms and saying the same thing in another way. What is a number . The dictionary says one of the series of positive integers derived by counting what . A number . A unique number . As reed suggested, every attempt to provide the definition will keep offering up synonyms or saying the same thing. And so sotomayor and her colleagues thought the notion of immoral to be too vague and broad, what do they offer adds more precise . Shocking, indecent, wrongful. And by scandalous, they offer exciting reproach, extremely offensive to the sense of duty. Is it not plain that they are simply saying the same thing in another way and not adding anything even a bit more previce to the translation. So, to adapt an old line from henry james, the judges have made themselves victims of perplexities from which a single spark of direct perception could have saved them. No, no my friends. Theres no way that the statute here can be made more precise. And anything put in this place youll find just as broad and aloo illusive. Or just a little bit of read early could save us and our public live some brave mistakes of the season of our experience. Good morning and thank you to the Claremont Institute for organizing these panels this year. Quick biographical note. Im now permanently at Princeton University as associate director of the James Madison program though i remain affiliated with the Witherspoon Institute. Continuing the recent pattern of working as little as possible, the justices of the Supreme Court decided 23 cases in october if 2018, just one more than the previous term. But fewer of those were precure yum. There were more decisions issued with side opinions than 66 as against last years 59. But while there were about as many decisions as last year and more with signed opinions, there were fewer constitutional cases this year, 21, as against last years 26. Of the 66 cases decided with signed opinions, 25 were unanimous, 90 or 80 which was an improvement if you prize consensus as the chief justice professes to do. Last years term saw 19 unanimous cases. 18 cases were decided by the narrowest 54 margin, another two by a 53 margin, a total of 20 cases being determined by a mere five votes. Were accustomed for good or ill to view the courts decision of products of blocks of justices conventional called conservative or liberal. If the conservative justices stuck together they could have things all their way. And with replacement of Anthony Kennedy by brett ckavanaugh. Only 8 were produced by all five conservatives voting together. Six of the remaining nine were produced by the four lib cals voting together and attracting one conservative vote. By contrast in Justice Kennedys final term 15 of the 20 fivevote decisions were made by the conservative block sticking together. The liberals are overall, no surprise here, much better at sticking together. If we look at justices who supplied the fifth vote to the block of four, we would find that roberts and alito each did so once but only in 53 cases where the votes prevented 44 dead lines deadlocks. I leave aside the census case. Thomas voted with liberals on one case. And Justice Gorsuch did so four times. Justice gorsuch was also the justice most likely to vote three liberals in a descenting pl block doing so twice. A picture emerges of neil gorsuch of having the most exciting pattern. He was tied with justices thomas and ginsburg for being in the minority the most often, 18 cases. He found himself outnumbered as a conservative member of a liberal block majority or minority in divided decisions, nine times, more such crossover votes than any other justice. He was tied with Justice Briar for writing the highest number of descenting ouppinions, 10, a wrote the second most overall, 22 exceeded only by thomas. But thomas was pumped up by not unusual 12 concurring opinions. Finally of the 6 opinions Justice Gorsuch wrote for plurality of the court, he spoke three times for the conservative justices and three times for the liberals. More crossover votes, most crossover votes tied for most times descenting and writing decents, liberal majorities by a conservative justice. Gorsuch has surfaced as the maverick among the conservative justice. But the numbers like the conventional labels tell us nothing about whether Justice Gorsuch is performing well or poorly as a judge. Maybe he is breaking a new trail on which the other conservative or originalist judges will be persuaded to follow him. Maybe hes just, well, idiosyncratic, meaning wrong. In my remaining time ill look at a few of his prominent disagreements with fellow conservatives. Heres where i think things are most interesting. Gamble versus United States decided june 17 reaffirmed a string of old precedents holding that the double deposit ji does not bar successive prosecution by the state and federal government for the same acts. This dual sovereignty doctrine has been recognized for so long that it was surprising that a case was taken up on the subject. It remains a mystery. There was no if circuit split forcing the courts hand. The 11th ruling was affirmed and the case came down 72, ginsburg and thomas decenting. His was the third vote for sert, but he decided to reaffirm the precedence anyway. But do the math. Who was the fourth vote . Its completely mysterious who among the other six in the majority besides gorsuch im sorry, besides alito provided that fourth vote. Justice gorsuchs decent was for himself alone was a pass teej of cobbled together originalist arguments, each one flattened by Justice Alito and his opinion for the court. Both justice and ginsburg thought there was some force to the argument that sovereignty rests with the whole people of the United States and not at all with the federal and statement governments as separate sovereigns. But as alito pointed out, this was a, quote, nonsec tore. He went on our constitution rests on the principle that the people are sovereign but they have not attributed all to sovereignty. In the United States versus davis, Justice Gorsuch wrote for a 54 court that a federal statute lengthening the prison sentence was unconstitutionally vague. The question was whether a provision punishing an offense for carrying a risk of violence, quote, by its nature, end quote, identified element of offense or attribute. Gorsuch held it was the former and that punishing a defendant on such a basis subjected him to the vagaries of the sentences judges notions of what is typical or ordinary. Justice kavanaugh, at the head of the four conservative justices in decent countered that unlike recent stidecisions which sentences were validated, the federal law in this case required the judge and jury to determine whether the actual facts warranted a finding that it was, quote, by its nature, end quote a crime of violence. They both displayed considerable virtuosity. In carrying so did so in presumption of constitutionally and the doctrine of constitutional avoidance. Gorsuch conceded that the multiply tor knorrtys reading of the statute was feasible. The saving interpretation should be rejected because it would extend the reach of the criminal law in this case rather than reduce its reach. Justice kavanaugh responding that there is no reason for the interpretive rule of lenity to trump the traditional constitutional doctrine, that statutes are to be interpreted as constitutional if it is possible to do so. A third case worth considering is United States versus hammond, decided june 26th. Someone alluded to it earlier. Justice gorsuch wrote a plurality for himself holding that persons under supervised release from the federal prison system cannot be sent back to prison for possession of child pornography on a judges finding of a preponderance of the evidence. This needed trial by jury. This opinion drew an uncharacteristically sharp tongued response from Justice Alito at the head of the rest of the courts conservative. Alito charged gorsuch with gross misunderstanding which have replaced the old system of parole with the new system of supervised release but not substantively changed the status of convicts under the system. Persons under supervised release, alito pointed out, like the pa row lees of years past are not, not yet anyway, free of the continued attentions of the criminal justice system. Gorsuch, he seemed to say, had made the categorical error of treating persons under supervised release as though it were brandnew prosecution requiring a jury trial. With many thousands of convicts, alito said gorsuchs opinion threatened consequences that will be farreaching and unfortunate. I pause to note that these three samples point to Justice Gorsuchs more civil libertarian outlook in the matters of law but suggest more broadly engage of jurs produce dense, inpatient with the presumption of constitutionality and other doctrines that cancel deference. My own view that the gorsuch had the weaker argument in all three of them. A final case ill mention is from another field entirely, federalism and the commerce clause. Tennessee wine and spirits retailers versus thomas also decided june 26th was a 72 decision with Justice Alito writing for the court and Justice Gorsuch decenting joined by thomas. A concern of constitutionality requiring a twoyear residence in the state. Alito held that the law violates the dormant clause doctrine which condemns protectionist state laws that interfare with interstate commerce. Tennessees argument that the law is saved by the 21st amendment was unavailing. Its provision giving constitutional standing to state laws on the transportation or importation of liquor cant really shield any state law, alito said on the subject of the liquor trade for this would lead to results that the provision cannot be meant to have produced. For his part Justice Gorsuch said there was no purpose for the amendment if it did not shield state laws on liquor from the reach of the commerce claws dormant or active. There were significant strengths and weaknesses to both opinions. Justice alito made a sound case for the constitutional grounding and logic of the dormant clause doctrine as a general matter while Justice Gorsuch expressed a deep and, in my view, unwarranted septemb unwarranted skepticism about the doctrine. But on the original purpose and stronger constitutionality it should have been enough to decide the case the other way. Was this a case of national or nationalist conservative versus federalist conservative . Its hard to say. The posture of the case was unusual. 21st amendment controversies are rare. The presence of all the liberals on alitos side plus roberts and kavanaugh complicates the picture. Theres no easy way to paint either gorsuch or alito as taking the liberal side. Libertarian conservatives cheered the outcome while the two most obviously libertarian justices decented in the case. But if the term just concluded is a harbinger of things to come, neil gorsuch is a thing to watch on the contemporary Supreme Court. Thank you. Thank you for those remarks. I would like to open it up for questions from the audience. Before we do that, i was wondering if obviously we heard matts thoughts on Justice Gorsuch. I wondered if the others on the panel would like to share their thoughts on our two newest justices and how they may be shaping the roberts court. Ill take that up. So, i think its much too early to tell about Brett Kavanaugh. I think just the dynamic of how he got there and all of the controversy that came with it indicated he would probably stay his hand quite a bit the first year. And i think, you know, the granting of a stay in the louisiana case, the punt on the indiana Abortion Case, several other aspects of that demonstrate that that was true, even the gundy case and the court deciding not to schedule it for reargument that would allow him to cast the deciding vote on that demonstrates that. So, i think next term is going to tell us a lot there. I do want to ask matt a question in the gamble case and your question about we cant even fig yir out how this thing got there, how it granted sert, you get two votes in decent, Justice Thomas to three. Do you think the court has revived the old rule of three that if there are three colleagues, well cast the fourth vote to grant sert. That had been a pretty common stay for a while and then it looked over the last decade it had gone the way of the dodo bird. Has it come back . I dont know. I dont know, john. Its possible. Yeah. Your guess is as good as mine . Is this working . Its for cspan, you have to speak loud. I was there when gorsuch read the opinion in davis and his first line was dont worry, this guys going to spend a lot of time in jail, under state law. And judge orourke and i share the concern about expanding the reach of the federal criminal code and so on. But still, i mean alito was describing this case to me. Said look, a guy comes in, go through a series of Convenience Stores holding a sawed off shotgun to the throat and now youre telling me this statute is too vague and this is he couldnt understand the wrong of what he was doing . This ground of vagueness i thought was so refined i think it would escape the recognition of ordinary people. How do you understand could you give your own reading about the vagueness of the statute . I have trouble understanding. The vagueness doctrine under due process i think is sound at its core and i think it was misapplied. Absolutely. It was misapplied in this case. And i think that Justice Gorsuch and the four liberals wrongly assimilated it to some previous cases under sort of superficially similar federal statutes that did require judges to make kind of typical case judgments about defendants past records for sentencing enhancements records. I think that kavanaugh had the better i think it was kavanaugh, yes had the better argument about how to read that particular phraseology rightly in context of the statute in this case. So, he recognized, conceded,that the court understood. They are judging the act in the case with the sense of whether violence is plausibly. Yet the underlying statute wasnt confirming for the judges . Something like that . Something like that. This is so refined i lose the judgment of ordinary folks about rendering judgment. Opinions of the Supreme Court can be unduly vague. Ill drink to that. Okay. Any other thoughts on our new justices . Well, i agree with john. Ill just be brief about this, that i think its too early to tell with justice kavanaugh. Hes been r you could almost say the same things about neil gorsuch. There are things we havent seen opinions from him on. Maybe too early to tell. The two cases i focused on the department of commerce versus new york, no, i thii think if y conservative you would be happy with the judges in those cases. So, as john mentioned, alluded to, a lot of the big issues were delayed. It seemed like the court wanting breathing room this term. So, i wondered if you all could mention some of the cases that youre particularly interested to watch in this next term as it starts. Weve got daca coming up. We have a couple of obamacare cases, a Second Amendment case, and theres a the possibility of an Abortion Case coming up. So picking up on the theme about renewed devotion to textualism, the three title 7 cases which all involve whether the prohibition on sex discrimination in title 7 includes Sexual Orientation discrimination and even more recently gender identity discrimination. And i think where there are five pretty solid votes, except for extraordinary cases like the obamacare cases with roberts, the devotion to actually the text as written as originally understood i think is going to prevail there. The broader question that is presented by the daca cases and the whole separation of powers and executive authority i think theyre going to confront the legitimacy of the original daca program if it was truly under prosecutorial discretion as the Obama Administration claimed, then how could it be the case that the new administration cant exercise their discretion in the opposite direction . We cannot have a nondelegation doctrine or prosecutorial doctrine or various other doctrines that ebb and flow depending on whether we like the guy in the white house or whether we dont like the guy in the white house. And i think there are five solid votes on that proposition as well that if the president wants to resend daca hes going to be able to do so. The one thing that gives me trouble is roberts opinion in the citizenship case which opens the door for tweetbased assessment and motive and all these things. If the court goes down that path, we are never going to have the end of looking behind the scenes at legislative intent which i thought the court had put behind it a long time ago harper versus madison. Yeah, and executive official. I dont think its going to play out in the daca cases. Its certainly possible he would pull such a thing again, but it was a travesty what he did in that case it seems to me. I dont think theyre going to do it here. This is not nearly as contentious as that issue was at least on the merits of prosecutorial discretion. And what i would like to see is a 90 decision although, you know, im not naive enough to think we would get that kind of uniformity on a politically contentious issue. Other thoughts . I would say being from utah im interested in the Second Amendment decision from new york the court will consider. Last year i think on this panel we were asked where we thought the court might go on some of the issues with Justice Gorsuch on the court. The Second Amendment was one of those issues that hasnt been considered since the mcdonald case and the heller decisions. Well probably get qualifications and kavanaugh and gorsuch will be interesting given what theyve said in earlier cases on those issues. Im looking forward to clarification on that next year. New york is desperately trying to avoid the court ruling on the case, trying to moot it. It hasnt happened yet. I think thats proof youre right about the vote line up. Otherwise new york would be happy to get the vote up there. How about a question for your prophecy, your gifts of prophecy. We have the harris case coming up on the Funeral Homes about a fellow whos a funeral director who switched to become a woman. And his employers thought this could be quite disturbing for people who are in the home because theyre grieving and adding this complication to their days. Now, the questions going to be whether the Civil Rights Act and barring discriminations based on sex had to subsue trans gender identity. On the face of it, you think its a plausible argument. They may simply try to be textual on this. Whats your reading here that the four liberal judges will take the line of finding that implication buried in that text . But once again, instead of deciding whether we think that was incorporated in the text instead of saying is the claim itself a coherent and tenable claim supported by objective evidence . So, well go to the question of what do you make of the text . What is your reading of what the four liberal judges are likely to do . Is it as dark as mine . I do think theyre likely to rule that in part because of the Supreme Courts prior decision and price water house which allows sex stereotyping to be included in the prohibition on sex discrimination, that how this man who wants to be a woman should dress in the funeral home is an issue of sex stereotyping and i think theyre going to do a price water house assessment. But i think the conservative argument against that is particularly strong, stronger on the gender identity claim and harris Funeral Homes than on the Sexual Orientation claims because that same statute guarantees the ability to have different private facilities, housing facilities which a guarantee which cannot be sustained if you allow gender identity to be encompassed within sex discrimination. So, i think clearly on that one. But i think also on the Sexual Orientations the conservatives will more faithfully apply the text that was understood. I think Neil Gorsuchs first opinion from the year before says its not our job to speculate on what Congress Might have done had the issue been presented. Its to apply the law as the text comes to us. I think there are going to be five votes for that but i think only five votes. I share that judgment. Your thoughts on that case . Okay. I wonder what the panel thinks of the native rights case . Do you think thats going to be a major and important case that has implications by the nature of citizenship, nature of group rights in the future . Or is that not an important case . I confess i dont know the case at all. So, this was the case out of, i think, oklahoma, where a criminal defendant was arguing that a large portion of eastern oklahoma is territory, so his conviction by state court was improper. And the court heard argument in december and then asked for more briefing. The parties filed additional briefing, and then the court instead of issuing an opinion reset it for a second argument in the coming term. It would suggest well, if it was argued in december so, kavanaugh was already there. So, this is not a 44 split. Theyre rearguing to get the 5th vote. I believe gorsuch was recu d recused. It came from the fifth panel. Its like its one of those issues thats like an old sweater with a loose thread. Theyre a little nervous about pulling on that loose thread and how much do we give georgia back to the cherokee . Theres a whole lot of ramifications for this. I have no idea which way theyre going to go on it. Other questions . I can say i can say that based on a couple of cases that came up in the last term if Justice Gorsuch were participating in the case, hes pretty friendly to native american rights claims. Sex stereotyping, sex discrimination case . Well, i think kavanaugh is the switch the swing vote here. I and i dont know what weve seen in the Administrative State and devotion of text and separation of powers would suggest he would say, look, Congress Passed the statute. Its got fairly clear text. We knew what it meant when they wrote it. Thats why for 50 years there have been efforts to amend it to add Sexual Orientation to the statutory language. Those efforts would have been amended if it was included. I think thats going to be outcome determine tif for him. Well see if he follows the strict textual model or succumbs to the modern political sensitivity of the issue, what his tenure on the court more broadly is going to be like that. But i but, you know, the indications we get from this term is that hell stick with the text which would put him with the other conservatives. I think so. Are the liberals making a textualist argument too . They are. But its that discrimination based on sex means discrimination based on two other things that werent within the contemplation of that word at the time it was written. And thats a much more living the statutory interpretation view of textual language than i think the five conservatives have demonstrated a commitment to. Matthew, i thought your evidence for the proposition that gorsuch is the new maverick is fascinating. It fits with the things weve seen, interesting opinions and things weve took notice of. If i would have thought there was a maverick in that block, everybody would say chief Justice Roberts because of the prominent cases in which hes sided with for liberal justices. So, i guess my question is do you have any hypotheses or other people in the panel for why, what makes gorsuch different from his conservative colleagues . Whats dichbfferent about his w of thinking that leads him to different conclusions in these cases and what does that say about maybe the future of the originalism on the Supreme Court in the coming years . Thanks, joe. I think that Justice Gorsuch is drawn more powerfully to some of the recent work in libertarian originalism. I i think it colors his view of the criminal justice cases that i discussed. But it also probably accounts for the vigor of his views on things like chevron. On the 10th circuit, he wrote a case concerning chevron deference in which signing a good deal like a recent book on the subject, he hammered on marbury versus madison is the power is to say what the law is which in my view is a tearing of that sentence from its proper context in marbury versus madison, but hes proud of that view. And i think hes skeptical about the force of the presumption of constitutionality in some respects. I have a recent article on the subject i would love to put in front of him. Its in the american thought defense of James Bradley thayer. I should have caught him young like hadley, caught him young and made him read thomas reed. Men and women of this maturity are probably beyond the reach of our intellectual efforts at this point. Im not so sure i so readily subscribe to the view that its libertarian judicial engagement thats coming out. We wouldnt have said that ant antonin scalia. The key facts have to be decided by a jurimey. It may be constitutionalism coming out which he seems in the other cases to be extremely devoted to. Hell tell you himself, he says i come out of the west. I see myself on a ranch. I identify with that ethic. But look whats the case of the kurtilag. This is a new word for me . The police are chasing this guy in a reckless race with a motorcycle. Now they see that motorcycle in a driveway. Its under a tarp. You look ah, thats the one. Nope. Cant reach it. Its part of the claim of privacy. So, gorsuch has an expansive notion of understanding that. I think its the libertarian comes out with a vengeance. Since were on gorsuch, does new natural law help explain any of this . I dont think so. I dont think so. As many people in the room may know, Justice Gorsuch did was at oxford under john fennis. His dissertation was published oc on assisted suicide euthanasia from a new law perspective. But i dont see any strong evidence that the doctrines or teachings of the new natural law have any particular force in his jurisprudence. But i do see a greater willingness to consider the old natural law in faithful interpretation of clauses of the constitution. I mean, look, the libertarian Civic Engagement if thats whats going on or judicial engagement is trying to restore original meaning to the privileged immunities clause. You know, and look at these things in the context in which they were written rather than, you know, a raw exercise of textualism devoid of the meaning of the text by those who wrote it. And i do see him willing to engage in that front. If judicial engagement means enforcing the limits on the federal constitution, either innumerated powers or the limits that the constitution imposes on the states via the privy amendments clauses and getting those clauses right as they were originally understood, thats constitutionalism. Its played out in that extent. It looks like new natural law, perhaps, but its the old version. Its the declarations natural law as we codify it in specific text. Why did that carry him in the tennessee case . Well, on the the outsider coming into the state thinking he could have the freedom to engage in the same trait there. There was the reading of the 21st amendment. There you go. Which comes after the 14th. All right. I think we have time for one more question. Back here. I know there was a petition earlier this summer on the constitutionality of the Consumer Finance protection board. I dont know if it was granted, but the i was wondering if there is any cases potentially coming up on the independent regulatory agencies and whether or not among the conservative justices is there a coherent view among them on this question of the constitutionality of the independent regulatory agencies . You want me to take it . Yeah, so look, theres this perennial problem when youve got Mission Creep over decades about what would be permissible, you know, starting with one case and trying to avoid unraveling all the rest of the infrastructure that existed. So, they come up with some odd ways to confine their new decision in ways that wont force us to unravel Everything Else thats gone before. And the cfpb as well. Yeah, theres no atwill Removal Authority, but this is different from some of the other cases where there wasnt atwill Removal Authority because this is a single head rather than a multiple head like that matters when it comes to the separation of powers concern. But as they are and alito i think is particularly committed to small step restoration rather than pull out the bottom card in the house of cards deck and watch the whole thing collapse restoration. So, in the meantime youre going to get these oddities. And i think the cfpb case represents one of those. While they are trying to restore some principle definitions, the particular applications are going to look a lot odd in the transition. Thank you. With that, weve come to the end of our time. So, please join me in thanking our panelists. [ applause ] its my privilege to welcome you to