Transcripts For CSPAN Legal 20240705

Good morning, everyone. I am dean, Senior Vice President and general counsel of the Federalist Society, for those of you dont know me. You i think you all for being here. You are the stalwarts that show up in 00 a. M. In the morning after the annual dinner. Thank you for being here. I thought we had a great day yesterday capped by a great night last night. Im so happy it seems that very few of you went to Union Station last night. I count that as an additional success. I have been asked about last nights events, so i will tell you all at once, the official count, we had four justices of the Supreme Court in attendance last night. Justice barrett, but also justice gorsuch, kavanaugh and alito. The four justices were unable to issue any decisions, but they couldve made a third grant, so keep an out for the orders list. On logistics, if you are gting , using the qr code to sign in, make sure you do that. Dont miss the rare documents exhibit. Qr de to sign in, make sure you do that. Dont miss the rare document exhibit. I mentioned it yesterday, on the second floor, and enter the drawing. The item i held up yesterday is the door prize. It is a very handsomely framed page from a First Edition federalist papers. So, its quite something to have any need to go to the South Carolina room to see the documents and enter for that. Just to reassure you, they did not destroy a First Edition copy of the federalist papers, this is an addition that was beat up, it was compromised in a lot of ways. They salvaged some pages. Theres only four of them. You can see the documents and enter them to win. We have another great day planned today. Beginning with our Panel Discussion on precedent and originalism. Before we get to that i want to mention the days events. We have five book signings that might not be clear in the Program Later this morning on the mezzanine level. If you have not been to the mezzanine level, its a nice less crowded place you can go to. Theres coffee out there, theres ectricity, you can charge your phonesnd your laptops. After a flurry of breakout panels all day long and another fireside chats, and a special session on natural law, we will finish the day with bari weiss as she delivers the wholesome lecture. Im honored to introduce the moderator of our Showcase Panel on precedent. Judge breyer served on the 11th circle Circuit Court of appeals for 20 years. In clerk years thats 80 years. Meaning he has a mentor i just coined that notion, he has mentored and credentialed, and brought along a clerk family of 80 mennd women, quite a legacy in it of itself, but before taking the bench he served as alabamas attorney general, where, among other things, he founded and led which has become a check on federal power and in enforcer of the rule of law. I could say much more about bill pryor, but i will close with one note. Internally at the Federalist Society, when i try to find a speciaspeaker or special guest or someone special to fill a slot, in terms of somebody who is of the Federalist Society is what think. The inner circle. A face or a name you think of or ihink of when you think of the Federalist Society. Judge breyer is certainly of the Federalist Society. He founded nearly every alabama chapter of the Federalist Society, student or lawyers chapter. He is so ingrained and integral, he is a part of the dna of it. I am proud to welcome him today, judge breyer. [ judge prior. [applause] goomorning, thank you, dean, for that kind introduction, i thought you scheduled me to be the moderator this morning, the morning after the dinner because he wanted something a little rambunctious from me this year in contrast with last year. Our pic this morning is whether precedent, no one maintains that the Supreme Court has always and forever been originalist in its orientation. By any definition of originalism, there is a vast body of case law that does not conform to it. How do and should modern originalist, including inferior court judges, who consider themselves originalists, handle this caseload. Do nonoriginalists precedents count for nothing, no matter the expectation built upon them . If they count, how much do they count . In the light of the structure of the constitution, doesnt make see to be originalist in some respects in some contexts but not others . Does originalism itself provide means to answer or even address these questions or does one necessarily haveo step outside originalism to establish its relationship to precedents. To discuss these questions, the Federalist Society, as usual, has assembled a distinguished panel of scholars. I will introduce each of them in the order in which they will speak, each of them will speak give oress, about 10 mines, maybe. Maybe a little more. We have ample of time beforwe open it up. Our first speaker, randy, is associate dean androfessor at law at the university of notre dame. Theres been a notre dame takeover this week. Its so quaint, they think they stayed up they think they still play football there. [laughter] he also directs the notre dame program on constitutional structure. His book, settled vers right, a theory, a precedent makeshe case for using precedent to bridge interpretive disagreements. The professor received his jd magna cum laude from Harvard Law School where he was the Article Committee chair of the harvard ball review. He served as a law clerk to Justice Anthony kennedy on the Supreme Court, and as a clerk to judge kaczynski of the United States court of appeals forhe ninth circuit. Gary lawson is the professor of law at bostonniversity school of law. And, importantly, the secretary of the board of directors of the Federalist Societys, one of its founders. He previously taht at Northwestern University Pritzker School of law, professor lawson a graduate of Claremont Mckenna college and he received his jd from yale law school. He served as a law clerk to justice Antonin Scalia. Ithen judge Antonin Scalia on the United States court of appeals fothe district of columbia. Then later as a law clerk for Justice Scalia on the Supreme Court. John mcginnis is a professor at Northwestern University Pritzker School of law or professor plus where professor lawson previously taught. Professor mcginnis is a gduate of Harvard College and learned earn his jd from Harvard Law School wheree was an editor of the harvard ball revi. He also has a masters of arts degree from bail college in philosophy and theology. Professor mcginnis served as a law clerk to judge can start on the United States court of appeals for the district of columbia circuit. From 1987 to 1991, he served as the Deputy Assistant attorney general in the Deputy Office of counsel at the department of justice. He is the author of accelerating democracy, transforming government through to knology and originalism and the good constitution with mi rappaport. He is a past winner of the paul bapour award given by the Federalist Society to announce outstanding academic under the age of 40. Last but not lst is professor tara grove, the chair of law at the university of texas school of law, i have to pay my respects, they do pay ey do play football again. She graduated summa cum laude from Duke University and she earned her jd, magna cool latte from harva law school, where she served as the Supreme Court chair of the harvard ball review. Professor grove clerk for judge gars on the United States court of appeals for t fifth circuit, where i started my career, and then spent four years as an attorney for the department of Justice Civil Division appellate staff. She is a coauthor of low and jeffreys federal courts in the law federal state relations and she has served as the chair of the federal Court Section of the association of american law schools. She also previously received the paul bap touaward. De . [applause] thank you, judge. Let the record show i made it almost to 9 15 am before i stopped at the first insult to notre dame football today. Next year is a brandnew year. Thank you all for being here. And i was teaching and friday morning. In part because the people who opt in on friday mornings are a special breed. Thank you for being here today. This morning, i will be arguing that originalism goes handinhand with the president and the doctrine. Even more than that, i will argue that it strengthens the case for originalism by promoting ideals of stability, personality andonstraints within an originalist framework, and i will argue we should be skeptical of any account of originalism that squeezes out, not only because of potential for disruption, but due to th long line of justices and constitutional thinkers have described precedent as legitimate and valuable part of the judicial process. Since i will talk about the virtues of precedent, i suppose its only fitting that i will look backward to october 24, 1989. On that day, Case Western Reserve University hosted a distinguished lectu in this speaker was Justice Scalia. He took aim at a variety of legal cliches, too ofn the just take explain the legal cant keep pace. Most relevant to the topic of todays panel, Justice Scalia challenged ralphs famous line, a foolish consistency is a hobgoblin of little minds. Justice scalia did not criticize emerson per se, as the justice put it, its sound policy to leave poets alone if they leave you ale. But his objection was to the attack on nsistency because as Justice Scalia noted consistency is an idea that resides at theore of law and logic. In the legal world, consistency is made manifest through the doctrine of set sacrifice. Its equal parts legal rule and traditional mindt. At the most basic lel, it urges judges to le things remain settled instead o constantly rewriting the rules and rehashing the past. We are here today to talk about originalism and particularly their weekends broader theme of origalism on the ground. The big question is whether originalism has room. I think the answer is, yes, the two are compatible. More thanompatible, actually. Becae it dramatically improves the case for originalism on the ground. That is the poinJustice Scalia made when he made out his originist philosophy in a matter of interpretation. He described it is crucialo prevent originalism from being so disruptive of the established state of things that it loses much of its utility. The justice had it right about the role of precedent. Its not just about making originalism palatable, its about making originalism functional. I start from the premise that in a democratic system that protects basic liberties and promotes human flourishing, in a country like the u. S. , any legal theory that would lead to massive people has a problem on its hands. Thats mynclination. It doesnt have analytical. The legal case first star decisive begins with hisry. And the fact that it was a familiar part of the case deciding function as a founding generation knew it. Consider madisons recognition that the good of society requires that the rule of conduct should be certain and known. That wouldnt be the case, madison observed, if any judge disregarding the decision of his predecessors should ry the rule of law according to his individual interpretations of it, or consider 78 where hamilton decides that judges should be bound down by strict rules and precedent in order to fend off what he calls an arbitrary discussion discretion. Federalist 78 was among the sources Justice Kavanaugh cited to support his claim that the framers understood the doctrine is part of the judicial power rooted in article tee, giving it a firm constitutional basis. Even apart from that textual gument, it strikes me as a solid inference that federal judges, including Supreme Court justices may lawfully defer president as a waiter bringing continuity and coherence to the interpretation of a charter that is specific and exact in some ways but open to debate in many others. Of coue there is no fully defined doctrine hiding in the constitution anymore than there is a treasure map in the back of the declaration of independence. Instead the constitution permits federal judges to create and apply a debate about the law of precedent, which is what they been doing for years and what they continue to do toda there is a notable counterpoint to thisnderstanding. Comes from juste thomas 2019 concurrence in a case called gamble versus uned states. Drawing on scholarly work, including a brilliant article by my copanelist gary lawson, Justice Thomasescribed as inntion with the supiority of the constitution over other sources of law. He argued that the judicial power doesnt authorize the Supreme Court justice to elevate mistake and precedent over the constitution. So, rather the Supreme Court is constitutionally forbidden from deferring to predents that are demonstrably erroneous. For him, the laws only in one set of rcumstances, when the traditional tools of legal interpretaon reveal that precedent while incorrect, nevertheless adopted a permsible interpretation. The sweep of this position depends on how we define the key terms. The most salient question is what it means for a president to be demonstrably erroneous as opposed to permissible but still wrong. We need to know what confidence level eqtes to demonstrable error and why when that confidenceevel isn met, its ok for the judge to defer to precedent instead of offering his best interpretation of the law, irrespective of what was said. Weve gotomeone to do before we c put it all into practice. There another step, because the concept ofemonstrable error does not est in a vacuum. According to Justice Thomas, courts need to assess whether s demonstrable using the quote, traditional tools of legal interpretion. That is the whole ballgame. Cause it traditional tools of legal interpretation is another way of saying originalism, which seems to be thcase based on the concurrence and game versus the United States,han any nonoriginal precedent that reaches a nonoriginalist rult is guilty of demonstrable error. Which means every nonoriginal will precedent not only may be overruled, but must be overruled, no matterow deeply its entrenched and no matt how much reliance its commande it might well be that an unbren pattern of interpretation would have been the best of all possible worlds. Or nonoriginalist precedents play roles in shaping the freedom of speech, the rules of criminal procedure, the extent of federal power and beyond, w need to worry about disruption and instability of all of those are up for grabs. Plus, as i suggested, Justice Thomas structural argument for the unlawfulness ultimately has too much going against it. Heres why the history of precedent based decisionmaking, the familiarity of the founding decisionmaking, prominent founder depiction of precedent is part of the judicial process. The fact thafrom the moment of its ratification, the constitution contained a host of uncertainties that we need to be rked out and solidified your processes including judicial interpretation in the absence of any language indicating that the constitution constitution takes the step of excluding this from the judicl power or the case deciding function. I cannot help but to conclude at it has a role to play. I take part in the fact that the Supreme Court sees it that wa as well. Over the years, justices who interpret the constitution very differently om one another have found Common Ground in the legitimacy of this. That remains true up to the present, even in a landmark case like dobbs. The majority describe it not just as constitutionally legitimate, but as promoting the consistency and integrity of what judges do. The idea that over the years so many justices have been wrong about the lawfulness about this is an aggressive claim. The bar for proving that case ought to be awfully high and i dont think the text and structure of the constitutio get us there. Accepting this does not mean freezing every constitutional mistake for eternity, that is what it does with the central work. Separang the mistakes we live with from the mistakes we can. Just as generations of judges have recognized this, t same judges have recognized the validity of departing from precent underertain circumstances. Thessential steis making sure judges dont flex their overruling muscles every time they come upon a dubious opinion. Particularly if dubious refers to all opinions that reflect commitments different from ones own. So what should judges including originalist judges look at when deciding whether to revisi precedent . They should ask whether the external world has changed in a way that underneshe precedents predicate. Like why the ask if the decion has been unworkable. Apart from those considerations, the best reason is in its interpretive methodology but its subsidy impact. Its impact on the ground. If the president s realworld effects are not t bad, thes much less need to reconsider it, even if you think its likely wrong and even if its reasoning is decidedly nonoriginalist. The point here is that originalt judges like all judgeseed to be careful about how many errors they characterized as so grave of the man the demand overruling, which means it cant be the case that every nonoriginalist president is harmful. Same goes for nonoriginalist cour in ithandling of originalist precedent. I would ke to return to Justice Scalia one last time before i close. One should assuredly not shrink fromhanging his views when persuaded that they are wrong. The problem, he pointed out, is with the judge who finds himself repeatedly in that situation. In my view what is te of judges aindividuals is equally true as courts of institutions. Theres noing at all objectionable abou a court that reconsiders its prior decisions from time to time. It should be in a Legal Framework and one that recognizes the court as an Enduring Institution committed to durable principles that transcd the current moment. Thank you. [applause] as randy just said, about 30 years ago, i had a really crazy thought. What if we take the argument for judicial review and we substitute judicial decisions for statutes in the form of the argument, does thatean courts always have tprefer the constitution to prior decisions the way they ha to prefer it to statutes . Does that meanrecedent is therefore categoricay unconstitutional . The problem is i cannot figure out why it was not. So, this was a time when i was pretty heavily invold in designing Federalist Society conference programs, so i put myself on a program. I structured a panel around me, and thiss true, i picked o the three people in e country who i thought would have the best chance of expining to me while i was wrong. One of them is with us this weeken might even be in the audience here. And to my amazement, all of them said yes and it was a phenomenal panel. Everything i couldve hoped for, except athe end of it, i still cannot figure out why it was nuts. So, three decades ler, still crazy after all these years, still crazy after all these years, how did i end up in this state . Lets go back to the case for judicial review. Bothouses of congrs passed a ll clo those to the president , the president signs it. Its now law. It spefically is defed as a law. Cannot get any me law an that. Lets just spose that that statute, that constituonally defined law pretty conclusively resolv a dispute between parties. The parties takes it into court, were its cot supposed to do, the courts job is to decide cases according to governing law. The constitution defines it as law, give me my verdict. On t others, not so fast, that article one section seven claus two statute is unconstitutional. While now, what . The statute is law, the constitution is specifically defined it as law, more than that, the statute is a precedent. Its multiple pcedents because prior constitutional interpreters, at least three, theouse, the senate and the present have all independently determined that that is in fact cotitutional. They are charg by oath and by implication from their grants of power with making constitutional juments, so we have not one precedent, but three. Does that combination of lob plus precedent mean you have to give effect to the statute . As we all know, the answer that has come down to us is, no, not necessarily. While dash is wrong about of lot of things, ey are not well wrong about this. Not only is that statute defined as law, the constitution defines itself as law along with statutes and treaties, even defines itself as supreme law over other competing sources like state constitutions and snap shoots. And then there is the inferential move of marbury, which i think is correct, that even within that group of supreme law sources, theres Something Special about the constitutionit is hierarchically superior to other sources of law, statutes, eaties, the law of nations mentioned in the constitution, kala law, state constitutions, the constitution just is the trump card, the eighth of trumps. Well wait a minute, may be what we can say is that article one section seven clause to status creates a presumption in favor of constitutionality. Some kind of legal force not necessarily conclusive, but still nonzero. And theres a tradition of this, expressed most clearly by James Bradley and his rule of clear mistake, today wknow it as severaother names, the presumption of constitionality or older generatns judicial restraint. But heres the thing, i dont think you can get that rule out of the constitution itself. In fact, when they came up with this a centurygo, he came up with it not out of interpreting the constitution, but out of and stay constitution. Hisroblem was that courts were behaving too much like lawye and decidi things and if you actually behave like a lawyer, you reach these conclusions that these things are unconstitutional. Courts are supposed to be statesma i dont think thats true. I nt think article three is a statesman article. I think s a law article. So im not sure you can get that presumption of constitutionality out of article three. Whent make the job of judges sier if they could def to the prior decisions of congress and president s . Of course it wouldthis is why difference doctrines get created courts all the time. The probleis courts sworn oath to uphold the constituon, not an old to make their jobs easier. If you can get that out of there either. Might one of those prior decisions be good evidence of the right awer, something that a court should take account of because maybe somebody else means knows more than you do. We have that, absolutely, 100 , i dont know that that is something at deserves th label of precedent because that means urts areupposed to figure out the right answer and sometimes good evidence of the right answers wet somebodelse has come up with is the answer. Is there any good systematic reason to think that congress anpresident s are over the large urse of things kely to get the constitution right, suppose one uld try to make an argument for tha but seems like a hard case to make. So all of that is about judicial review. Lets go back to my problem from three decades ago, take exactly the sa argumt, the whole structure and everywhere where i had article one section seven clause to, take that out and put in judicial decision or if you prefer press release by 26yearold ivy league what changes if we do this . Two things change. One is, unlike article one section seven clause to statutes, the constitution doesnt specifically define judicial decisions as law. Nonetheless, i do think they qualify. After all, article three is not there judicial rambling of clause, is the judicial power of clause, and for pat judges to have power, there has to be some kind of legal effect to the things they do. I think that is sufficient to establish the judicial decisions properly issued to hava status of law president s can execute them using the executive power, they certainly couldnt do at if they werent law of sor i do think we coulget rid of that distinction. The other distinction, anrandy mentioned this, is article three does speak of this thing called the judicial power. Could it be that part of the judicial power just is the ability to prefer prior decisis of courts to the constitution. There isnt anything conceptually impossible about that. The constitution is capable of sang, by the way, igne me in these circumstances. Its not impossie. The questi is whether it does so. Ths a problem ive had for three decades. I just cant read those words, judicial power in article three as authorized in courts to treat their own decisions better than they treat state constitutions, state statutes, article one section seven clause two statutes, the law of nations and every other source of law that there is. Iant to be very clear, im not sayingudicial decisions are not law, they a law of sorts. The question is whether they are law that is hierarchically superior to the law of the constitution and that is a tough sell. Does that mean all prior judicial decisions are the same status as law review articles, all beds, other things that might be of some interest as evidence of the right awer to constitutional questions. Its a lile more complicated than that, so igoing to give for alifications to what i call t case against the constitutionality of the use of precedent, and they are important qualifications, randy touched on a couple of them. One is, of course its possible, not only possible, but i believe mandatory to Pay Attention to prior decisions to see if maybe they do constitute good evidence of the right answer. Sometimes they will, sometimes they wont. The merfact that its a judicial decision doesnt tell you anything, but, if its a judicial dision written by really, really smart people who are using a method that you can count on as more or less reliable, than there is a decent chance that maybe they have come up with something th you havent. All judicial decisions are not created equal. Clarence thomas and Antonin Scalia a r not Harry Blackmun and will warrant, they are just not. They a not the same things. One is likely to be all things considered, better evidence of e right answer, then others simply because they are asking different questions. They are asking more or less the right questions. Entirely possible to use precedents for what i call a pistol logical purposes. What is to tell you about whats the right answer. There are some contexts to where the seeming sweep of thick craziness does actually run into a a wall. There are times when i think you actually can get out of judicial power, certain certain stances circumstances where younow those opinions have some measure of legal force, even against your best constitutional judgment. In order for them to be exercises of judicial power, they at least have to be binding on the parts, to some extent. They have to be binding on the executive for enforcement, to some extent, otherwise its an advisory opinion. So you can get things like law of the case, restitutive of you can get any number of things that are specific to the judgment that do seem to have that kind of power. More controversially, you might even be able to get a doctrine at says, judge prior does have to suck it up and follow them. Why, because he is inferior to them, right, the constitution sayso. If you try to parse what it means to be an infeor to person in the context of the constitution, this would be a whole another panel, a whole another talk, this would be a pretty good case that you have to follow whathey sayvenf you are quite sure that they are wron all which leads to number three, and this is onof the most important points that ray meant, how sure . Anytime you make a judgment about what the law means, whether its a statute or constitution, you are implicitly adopti what i would call standard of proof. You have to ve in mind how confident do i need to be in this answer before i can say its right . If this seems ok or im really confident warm sure beyond a reasonable dou. Constitutiontself doesnt seem to answer that question. Is there an argument that the existence of precedents, and here we can geinto mechanic senate has to be a long line of precedts. Does that have to be firm judges you think are applying things right and so forth. What other universe you narrow down a staircase to say those president s raise the confidence level that you need to he before you actually decla theres a conflict between tho prior decisions in the constitution. After all, the lawson proem only arises in that once as x and one says why. How can you determine the constitution says this. Thats actually a very serious question, to which i say i dont think the constitution provides a textual list answer. There may be a ground on which randy and i can join forces. Around that kind of problem of proof. Finally, fourth, and then i will shut up for a while, erything ive just said is just about what i thi the constitution means. Most people in this room arent actually interested in what the constitution tnks. Im guessing that. What you are interested in is how government officials are likely to behave and should behave. Its a natural assumption to think that if you know what the constitution mea, that tel you how govnment officials are supposed to behave. Over a large ran such probably a reasonable assumption. Is not an inevitable one. Notice with some of the considerations that randy was invoking. Consistency, stability, prosperity, things that make a society function. What if the constitution is a botched job . To what extent do you at some point say, ok, we will take it this far, but we actually have a society to run. Im actuly not commenting that. It may very well be that the practice of precedents offers positive aantages that some people might think are more important than the meaning of the constitution. Im not here to argue that one way or the other. Just reading the thing in trying to figure out what i think it means. And i do think i creat a higher burden. I think there is a case against e use of precedent, at leas at the horizontal level in constitution cases. I think the burden shifts to others to me up with reasons why, in this particular circumstance, either the constitution instrts us to ignore it, or we choose to ignore it instead. That still where i am. Sorry. [applause] originalism may now be the leading jurisprudence on the Supreme Court, yet the court, many important, what i feel are plainly not originalists precedents created a dilemma. If it Court Overrules those precedents it will impose anonymous costs on those who relied on the statutes and rights that were believed to be constitutional. Constitutional law will remain partially, perhaps only marginally originalist. I think the central question for what i would call secondgeneratn originalists, when originalism, mike when i went to law school, has become a real thing, is the question of precedent and originalism. Thoriginalists justice themselves are debating the appropriate rules for overturninprecedent. Justice Brett Kavanaugh proposed a threepart test that would likely entrench it much nonoriginalist precedent as a requires special reasons for overruling cases. Justice clarence thomas, as weve heard, will overrule any precedent that is demonstrably erroneous under original meaning, but doing so wod overrule some precedents that are demonstrably erroneous, but much of modern government is built. Threatening chaos anupsetting settled expectations. I dont think any court is likely to adopt his proposal. In this talk i want to propose to raise that Mike Rappaport and i propose to solve this dilemma of restoring originalism while protecti settled expectations and promote originalism on the ground. The first is perspective overruling. Perspeive overruling is a practice by which the court would apply its ruling retroaively to pass statutes and actions, but only prospectively to future ones. The advantage of perspective overruling is that it allows the justices to respect past reliance where necessary, while moving the law decisively the original meaning. Precedent rules should protect mistaken precedent with overturning them would impose enormous costs on society. But rspective overruling would allow the court to apply the precedent to the past, thus avoiding the imposition of such caus but still applying the original meaning for the future. This kind of overruling avoids the problem in deterrent entrenching staking precedent in the court needs no special reason for overruling yet. It avoids the chaos of immediate overruling that Justice Thomas would cause. As an example, lets assume that the original meaning requires a much stricter nondelegation doctrine. Perspective overruling would allow the courts or a pending Regulatory Regime and thereby creating chaos. Agencies could continue to enforce the rulations in place, even as the statutes under which they have been promulgated violated the original meaning instead, the original meaning would apply to future statutes, giving Congress Time to pass tighter regulatory laws as needed and perhaps create new institutional procedures designed to streamline passage. The most significant obstacle to our proposal is the fact that many originalists of nevereen comfortable with respective overruling, justice Antonin Scalia was an outspoken opponent. Scalias argument arose in the aftermath of the warren court, which sell few respective overruling when it overruled precedents on the basis of living constitutionalism. Scalia believe that many of those decisions had violated the meaning of the constitution and we agree with him. Scalia surprisingly argued against perspective overruling on the ground that it facilitated judicial activism, but thats a policy argument, not in originalist argument. Today perspective overruling should help the court returned to its original meaning that will foster fidelity to the constitution. Scilly is most important legal argument is that perspective overruling is beyond the judicial power of article three because judges must face their rulings on what the law is, not what it will be. I think it creates a problem for scalia, precisely because he was in originalists, and as was pointed out, he also respected precedent. After all, the original meaning was the law. What allowed him to follow precedent contry to the original meaning. The justification must be there precedent rules on the law and the permit judges to retain precedent in some circumstances, even contrary to the original meaning. I think thats her right, precedt rules were wellestablished, common law or rules in english courts, colonial courts and federal escorts when it was applied, and they applied in cases of written law when they thought the prevus decisions were demonstrably erroneous. Scalia appears to accept the constitutional legitimacy of such rules but if precedent rules are the law, than a judge may follow a precedent rule that permits perspective over overruling. Scalia appears to argue that the framing and justices do not engage in overruling, and tha to my knowledge is true, but theres no reason to expect there wouldve bn perspective overruling in the early republic, there were very few precedents for any to overrule because the constitution was new and because at that time, not just one decision, but only a series of decisions were required to create president ial floors. The judges were more likely to have shared the values of those who wrote the constitution, making not originalists precedents much less likely than they are today. The absence of perspective overruling of the time the constitution does not suggest that kamala rule should rejected under the circumstances of the day, courts can apply a new, model rule to new circumstances in the case of perspective overruling, to new circumstances justify the practice, one circumstances that the Supreme Court now places a high value on the constitutions original meaning. We can discuss why it does, i think one of the more Important Reasons it does is we think that a continental consensus on what the constitute creating the constitution is likely to be a lot better than five 54 majority of judges justices who liven the most artificial place in the United States, washington, d. C. No a second circumstances that there are now so many nonoriginalist precedents on the books and we are 200 years end. Together these circumstances supporter rule for perspective overrung. Let me be clear, in some cases the normal process of overruling and which justicesnvalidate pass statutes remains entirely appropriate. For instance, if indendent agencies are unconstitutional, the court should overrule prior precedents upholding them and claring them unconstitutional today. There are a few reliant interests and independent agencies. I think no one outside the beltway would notice if they disappeared. We would also recommend another method of reconcile oprecedent with originalism what we call cutting back. If the cutting back the court would partially overrule a nonoriginalist precedent in the scope of nonoriginali holding. The narrowing would not fully return the law to its original meaning, but would move it closer to the original meaning. Like respective overruling, coming back also protect reliance interest while preventing a closer approximation of a closer approximation of the constutions original meaning. Even if replacing a nonoriginalist precedent original meaning would impose onerous clause, sometimes the court can cut back the precedent to move the block closer, but not all the way to the original meaning without generating those calls. Consider the Commerce Clause to show how this would work. The court could overruled precedents that could give them Broad Authority on the Commerce Clauseo regulate noneconomic matters, even if these matters have economic effect. This partial overruling would be similaro the courts action in the United States versus lopez, but both broader and more persuasive in the court with defined economic matters to exclude activities that did not involve a sale on the market, such as the actions of gonzalez view rach. A decision would be unlikely to create an anonymous because, overruling the precedents that permitted regulation of noneconomic matters would cut back on the scope of the Commerce Clause under modern doctrine and would not return the clausto what many originalists believe was its originalist meaning. It would move us decisively ck toward that meeting. Our approach to perspectiv overruling cutting back has the advantage of creating a gradual rulebed mechanism for returning to the original meaning. It would make it more likely that the court would restore the originaleaning of constitutional provisions while recognizg that a Society Comes to rely organically on nonoriginalist precedent. Perspective overruling would promote the constitutional amendment process where nonoriginalist precedent have come to beat come to be accepted and im sure there have been some accepted by the nation, respective overruling would give time for social movements to ariseto enact the principles underlying those precedents that are now widely supported. They could be enacted into the constitution and thus respective overruling would energize the people themselves to become, once again, the creators of our fundamental law. I think its only for facilitating the article five process that i fear has fallen into diffuse that we can fulfill a basic premise of the cotitution. And that is that the United States is, we the people who rule, not we the judges. [apause] thank you so much, im going to switch gears a little bit, so far weve been talking about horizontal precedent primarily, its the extent to which the Supreme Court should adhere to its own precedent. I want to talk about something that professor lawson briefly touched on and that is vertical precedent that is whether Lower Federal Court Judges have to obey Supreme Court precedent. And i think theres a very strong argument that vertical predent is not only constitutionally permissible but is constitutionally required, including on originalist ground. I actually think yuri lawson will agree with me on ts. What is the argument and what does it mean . The basic argument comes from article three. Article three says the judicial power shall extend to one Supreme Court at such inferior courts as the congress may, from time to time, ordain and establish. Article one, section eight clause nine also refers to inferior tribunals. With the u. S. Constitution does is establish that one court is supreme and the other courts are inferior in many scholars have looked at this text as it was understood in 1787, 1789 and so the historical understanding is that the constitution creates a hierarchical judiciary, which means both the inferior federal courts have to listen to what the Supreme Court says and conversely the Supreme Court has a leading role in dividing federal law for the federal judiciary. And there is a surprising amount of agreement on this constitutional principle among both originalists and nonoriginalist. It comes within a different way, but a lot of people agree there is a hierarchy judicial and many of you probably did not think of an alternative. So then what does that mean . It means if a case goes to the Supreme Court from a lower federal court, the Supreme Court can reverse it. It also measomething more, that the u. S. Supreme court can establish precedents, not just in the case before it, but for all those lower court cases this Supreme Court can no longer review. We dont often think about this, but when the Supreme Court first started out, it did not have the power. It could not pick and choose the cases it heard. It had mandatory Appellate Jurisdiction in every single case. So it could, on a casebycase basis, review th the lower federal courts did. Starting in the late 19th century and really taking off in 1925 in 1988, gradually the Supreme Court had discretionary review because assimile could not hear all of the cases from the lower federal court. I will pause and say, in the early 20th century, the Supreme Court, which had limited discretionary jurisdiction could barely handle 500 cases per year , 500 cases pe year. In the 1980s they were deciding 150 cases per year on average. E wonders why they have decembers off. Today they are deciding only 70 or 80 cases per year, sometimes 50 or 60 in recent terms, and to that means, when the Supreme Court decides the case, it needs to set a precedent for all of those, now hundreds ofhousands of lower court cases that it cannot review on a casebycase basis. Just imaginehe world if maranda only applied in arizona or if mcdonald, which purported to extend the second to states and localities, had no application outside the city of chicago. Very different world. So we so we accept that the Supreme Court can establish positive for lower courts, but how should it do it . It is problematic if the Supreme Court decides cases on extraordinarily narrow grounds because it is only deciding somewhere between 50 and 80 of the hundreds of thousands of cases that lower federal courts are hearing and when the Supreme Court decided cases on narrow or minimalist grounds, the Supreme Court is effectively delegating the lower courts enormous power to define law with limited guidance from the Supreme Court, so there is at least a case to be made that minimalism itself is problematic at the Supreme Court. But theres also a case to be maybe made that the kinds of precedents the Supreme Court establishes matter. Even if one is not originalist and even if one believes the Supreme Court could be originalist, it may be oblematic as a practical matter forhe Supreme Court to tell lower courts, go do originalism. Im going to point to one recent case that i think is arguably problematic along these lines, and that is the recent bruin decision on the second amendment. It certainly held that there is a broad individual right to bear arms, and it sent to lower courts, the government now has to buy some historical analogue to justify regulations. To justify a regulation today, you have to look to something in the past that seems similar. You can kind of see the argument, but here is what the Supreme Court did not say i did not say when in history one should look. If one should look when the original constitution was ratified, when the bill of rights was ratified. Are we supposed to look at the 1860s when the 14th amendment was added . Bruin does not say, and there is a difference between the late 18th century and late 19th century. Bruin does not tell lower courts what the level of generality is for determining what is a proper historical analogue, and i think the Supreme Court right now is considering a case that raises these questions and may provide clarity, but it certainly did not provide that clarity in bruin. Another problem with an analysis like bruin good, historical inquiries take time. It takes institutional resources, and an institution with nine members that hears only 58 cases per year and gets dozens of amicus briefs to help out might be able to conduct that originalist analysis and do a pretty good job, but lower courts that dont get summers off and have a much larger caseload and do not get many, sometimes any amicus briefs to help, they may not have the institutional resources to conduct that kind of historical inquiry. Final thing that may be problematic about a decision likeruin, again not in terms of what it held but what it told lower courts to decide to do Going Forward, there is always the possibility of lower court resistance. I do believe that every federal court in this country believes in our legal system, constitution, and in a system of hierarchical president , but i think we have seen over the course of time decisions that we might decide to be right or wrong from the Supreme Court, and Lower Court Judges feel the same way. They are reluctant to take some precedent all the way where the Supreme Court might want them to. Strict scrutiny as opposed to rational basis scrutiny really does provide guidance and are giggly rein in Lower Court Judges that might not be too keen on applying a particular precedent particularly rain in Lower Court Judges. One has to think it might have to do with how lower courts view bruin itself. The types of precedents matter in providing guidance. I want to continue with one thing are there areas where the Supreme Court cannot establish precedent not only for itself but even for the lower courts, too . I want to say a couple of words about methodological precedent. Theres a really strong function in our culture that every single judgcan decide for himself or herself which methodology to apply. Theres not a really good explanation for why this is the case, but the assumption seems to be that theres some aspects of judicial power that apply to a court, but other aspects of the judicial power each actually applied to each individual judge. One part of judicial power it seems is to choose a methodology, and that would be true not only for each individual Supreme Court justice but also every single individual lower federal court judge. It is kind of a mixed bag for originalism. The lack of president ial status for methodology allowed Justice Scalia to start basically and methodological revolution in the 1980s, advocating originalism in constitutional interpretation, textualism in statutory interpretation, even though those methodologies were not even recognized by the majority of the supre court at the time. This also means that at a time like now when originalism is ascendant, that strongly limits its staying power because new methodologies can come along, new justices can come along, new Lower Court Judges can come along and say, actually, we prefer something different. The Lower Court Judges will apply the president. Many Supreme Court judges will also supply the president , but they will say Going Forward, we want a new methodology, so the staying power of originalism may be quite lited. But i want to say on the positive side, that could be a good thing, not just to stick with methodology because thats how we have always done it, but continually try to improve, try to change, and try to justify the methodologies we have chosen. If one believes methodology should be defended unknown of grounds, that is a very good thg for our legal system. [applause] defended on normative grounds. Fascinating discussion. I suspect there are some panelists who would like to react and respond to each other. I will just say very briefly, i think all ofs have a lot of Common Ground in our discussion, and i love the point about vertical president president. I think there is a lot to discuss in the scope of Supreme Court vertical president , but one thing i will discuss now, i suppose i just dont see the issue of deferring to president as preferring precedent to the constitution itself any more than i would see looking to the original history of a constituonal provision as preferring that original history to the constitution itself. I guess i se it more as interpreting the constitution in light of factors including the text, includinthe structure, including the history, and including precedent, and i suppose i think of it this way technically, you could interpret the First Amendment, say, without regard to the original meaning of the text, and in fact, the Supreme Court has done it for years, but it was it would take a lot to convince me th historical considerations were off the table for a judge who wanted to bring them to bear in thinking about the meing of the First Amendment, and i suppose i think of precedent the same way. You could interet the First Amendment without regarding the president , but i would need to see a lot before i thought a judge actually could not make that decision, that the constitution somehow took that away, so i think thats where i come out. I would agree with all of that. If all you are doing with prior decisions is looking at them and using them as potential sources of guidance and wisdom on a casespecific basis, 100 im all in favor of that. My only issue is if as a matter of law they require a certain force or status simply by virtue of being a prior decision rather than being good evidence of the right answer. You can make categorical arguments certain classes of judicial decisions are by the nature, by certain features of them, especially likely to be good evidence of right ansrs, and ifine with that as well. I have two comments. I think one difference between gary and me, and i think im in that sense along with randy, is a way of interpreting the constitution. The way i think of the way we should interpret the constitution the constitution was created against a background of angloamerican jurisprudence. I think the practice of precedent was so wellestablished theres nothing in the constitution that seems to me to displace it, and the fact that theres judicial review is not really different from england, and yet, the judges on occasion applied precedent even when they thought it was completely wrong in written law, so they were preferring their precedent to something that was supreme under their structure, so these statutes. With respect to tara, i want to we two weve weave two points together, and one is can lower courts deal with the issue of history in an Institutional Capacity. I do not view Institutional Capacity as static but as dynamic. If we start to seeecisions like bruin im not talking if it is correct or not, what if we see more decisions that require superior courts to do historical iniries, the bar will reorient itself to historical inquiry, and maybe there will be actually some law professors at our schools who actually will teach originalism in constitutional law, and that, i think, will be a huge advantage, so i think that will change. What now again is a big objective of what i would call secondgeneration orinalism is to create a culture of originalism, and therefore a decision like bruin has some really great secondary consequences. I come to the next point, which is i think a very powerful point, which is it is quite true that i think we never ha had methodological challenges, and that is something of a debate about what the rule of regnition i for constitutional law, and i dont think that has been settled. I dont think originalism and textualism were never i dont think originalism and textualism were ever off the table. I dont think it is exactly right that originalism and textualism are now still the only things on the table, but that takes me back to the important elements of the judiciary in creating a selfustaining culture to support it you might say and there was a greaarticle about this, that the justices themselves are not only deciding cases, but they are kind of republican schoolmasters, and one of the things they can do is to create a culture of small r republican judging which includes originalism, and that means it is harder to displace, and that is a real challenge for originalists today, specifically because of our law schools and legal establishments, so i think they have to think of all sorts of ways of creating a dynamic culture that will make originalism more easy to sustain for the future. Thanks so much for those comments. Im certain that lower courts could get more Institutional Capacity to do more historical analysis that bruin requires. Kennedy asks whats to do something similar courts to do something similar. I think realistically, no matr how law professors teach originalism, i think just looking at the dockets of a lower court, it may need more clarity, and we should not even be in a situation where you are not even sure what century to look at, figure out what history to apply. I do think we will not get methodological settlement. I think you are right that originalism and textualism work by no means off the table. There was a deep history of textualism depending on how you read our Supreme Court decisions. Also a deep history of originalism. Again, it depends how you define originalism to get there. I think the Supreme Court can certainly provide guidance. Just to stir the pot a little bit, i want to say i think there is broad agreement that courts cannot require certain methodologies the Supreme Court cannot require that a lower court and each judge decide for themselves. This is coming at the debates after the debates over chevron. Courts do more than artulate certain texts. They articulate reasonableness, substantial evidence, and this is something that has been part of our system for some time. The big question is is that ok . Supreme courts and courts of appeals have been doing it for a long time. Depending how we define methodological precedent, it could be taking more president of the table, even in the vertical space could be taking more precedent off the table, even in the vertical space. Y could fairly be discovers taking some re. Just a couple of very qui observations. Then we will hear from everybody else. Two incredibly important points that came from folks to my left, one you just heard about methodological precedent, and taras exactly right about this, what courts can do, even under my theory where the Supreme Court can bond court it can bind th to text, but thats not the same binding them to a meod of decisionmaking. The Supreme Court is hearintwo cases this term about if it will overrule chevron. What does it mean to overrule chevn . Does that mean the epa will no longer be able to draw bubbles over factories . Because that was exact the judgment in the chevron case. Of course, that is not what this is about. The question is if it will be giving instructions to lower courts about how they are a sponsor before deciding future cases how they are responsible for deciding future cases. I have great doubts about how that will happen for t same reas i have ubts about if congress will order feral courts how to decide cases. I dont know that the Supreme Courts superior status would have any impact. On t background of the constitutionjohn is asking all of the right questions, posing all of the right issues, but of course, the constitution is not written on a blank slate. It is written in a context. On an earlier pal yesterday, they handled the commonlaw background of what i would call the anent constitution, which predates, underlies, is incorporated into the constitution we ha. There is no doubt that the judicial power includes certain thin. I mean, that is why it not defined inhe constitution. Everybody kind of knew what dicial power was. You read the judiciary act, and it says basically nothing about the forms and meths of the equity court and methods and procedures. Everybody kind of knew what it was that cous did. Yet, there is no doubt that one of the things they did was look to their prior decisions. The two questions that remain from the standpoint of the original meaning of article three are, number one, what exactly is that practice that they were doing . Was it looking at long settled, ancient constitution or because they work good evidence of what was right, just, and natural, good evidence of the right answer . That is a very different thing from simply looking at past decisions because they are passed decisions. Very different from what i call epistemological use of precedent. And then theres the notion that you can do that, whatever that is, in the face of supreme law like king d parliament for queen and parliament. How does that translate into a regime that provides a written rather than unwritten constitution, which announces itself pretty obviously. Again, i dont think the case th i make is a knockdown drag out case. I have never thought it was. Ive been looking for three decades for people to talk me out of this. I think it is a presumptive case, and the question is if the practices john describes are sufficiently welldefined, wellestablished, part of what i would call the ancient constitution, so that they can generate a Strong Enough doctrine of precedent to get to where john or randy or anyone else will want to go. If other people want to say something, that is fine. I think its ok if you respond,ut there is something i want to get to next, if everyone is ok with it, about inferior court judges. Im not taking offense at the term because it in it is in the constitution, of course, and i a textual list. One term not in the constitution is justice. Call them all judges. Gary lawson was just saying that the Supreme Court cannot establish certain types of precedent for the lower court, and im genuinely raising this is a question because this is something coming up a lot, that people are questioning the president ial president pre cedential status of chevron, but the idea the Supreme Court cannot say to lower courts this is how you should review decisions strikes me as antithetical to what courts have been doing for some time. Also, if the Supreme Court cannot do that, how can issue a decision like bruin that says, here is how you need to analyze secondment cases Going Forward . Both are about methodolo and analysis and approaches to decisionmaking, and not just saying the constitution means what in a particular case. The other thing i will say about the broader history of precedent that i think makes many folks squeamish about their reviews is if the constitution does indeed he argues prohibit precedent, putting reliance on precedent, and get, the Supreme Court is going to rely on precedent, as it acknowledges, then the Supreme Courts actions seem highly illegitimate to us. This is something i think is not recognized enough, how often the Supreme Court in our history has viewed the law in a particular way and done Something Else is legally illegitimate. If that happens once in a blue moon, as i think it has, maybe that is ok, but they are doing illegitimate stuff all the time. I would say they are doing unconstitutional sff allhe time im serious. This is a serious question. If thamakes it illegimate as a separate questn, not the same question. So, parochial interest. Im interested in perspective about a question as it pertains to precedent an inferior court judges. As i understand, there seems to be broad agreement with th idea that Supreme Court precedent. What about the horizontal precedent of inferior courts . Courts of appeal as a precedentsetting court. Threejudge panels can only overrule precede. Does that square with your perspective, professor lawson . If so, why . If not, why . I have the same problems with that that i have with horizontal precedt at the Supreme Court level and think about District Courts in a circuit well, they dont make law. District courts dont like when i say that, but district judges dont make law. I think if the Supreme Court is going to do things normally found upon, its cause the constitution authorizes it to do it, you are panels are not inferior to each other, and therefore, i dont think you can get a textual escape from the obligation to decide cases in accordance with governing. What do you think about the notion that by statute, congress, which created those inferior courts, also created a process that would seem to contemplate that that is how it has to operate . Congress can create whatever structures it wants. What i dont think congress can do is tell federal judges how to decide cases. Where would we get tha power . The power to make necessary and proper, that means they can ge buildingand funds and law clerks, if ty are fully enough to allocate funds for law clerks, computerand all sorts of things. I dont think it gives congress e poweto telthe courts how to decide cases. Congress does it all the time. Im an Administrative Law guide. Administrative law is full of statutes ordering courts to affirm agencies, even if the court inks the agency wrong, asong as the agency is not terribly wrong. I have never understood where Congress Gets power to do that. Collects any reactions to that . I would say i have the same take on courts of appeals as gary just noted. I think requiring review in order to deviate from circuit law can be understood as a potential practice and good idea, but i think it is not lawfully required, and i think the best evidence of that the cascade of situations in which courts of appeals allow threejudge panels to overrule circuit law, right . Sometimes, there is some sort of procedural mechanism, but sometimes in light of other events, like the Supreme Court has issued an intervening decision, right . As i said, i think it is a good idea to require review before oral precent in lots of situations, at least putting aside Something Like a clear change in Supreme Court case law, for emple, but a view that as more of a prudential judgment. I will mention one other thing and something i think about a lot. A lot of the discussionse have been having about started sizes stari decisis are going to find their way into discussions more and more. Even the queion about is it a suitable reason that you thought the threejudge pennell got it wrong or should you require some sort of spial justification in the same way you might require special justification to reconsider horizontal precedent on the u. S. Supreme court. I think these are fascinating questions that are incredibly important, and i think they are just beginning to get attention. One question i think is raised by this im sorry, deeper question than if congress can change rules of precedent. Of course, if the rules of precedent are commonlaw rules, it may be that congress can change the rul of precedent and create these suctures. Of course, they are limited. They cannot create special rules for certain kinds of cases, but i dont think it is clear if you agree that precedent rules or commonlaw rules that come from the structure of the constitutions power, that does not necessarily Mean Congress is disabled from getting involved. They were commonlaw rules in 1787. Dithey get baked into article three in 1788 so that they are no longer commonlaw rules but now constitutional ones . I dont think so. There were hearsay rules, all sorts of rules and rules of evidence, and im not sure they were baked in. They had the unusual power, i think, to create them, but i dont think we would think they are baked in because, of course, the common law can change. I certainly think the practice is certainly not to look to exactly what the president rules are in 1787 what the precedent rules are in 1787 to decide what our rul are today. Getting back the initial question, i thinke can step back and say if congress has the power to constitute tribunals inferior to the Supreme Court, if we step back and say, let us say congress established these courts and said, go and figure out the precedent stuff. Figure it out on your own. Could they have established president at the court of appeals level . I think that under garys theory, the answers no, but under randys and johns theories, the answer is yes. If thats true, then it strikes me as not problematic at all for congress exercising its authority over the inferior federal court under the necessary and proper clause to establish the system. Lets be clear, it is not congress telling lower courts how to decide cases. If congress was telling lower courts how to decide cases, we would have a very different system and cases out of the fifth circuit would be exactly like cases out of the ninth circuit, which last checked are not. The courts of appeals areuite capable of doing things on their own. It is setting up a system for judges to follow, and if it would be ok for those judges to do itn their own, i think it is alsok for congress to set some bouaries. They establish rules of jurisdiction and procedure, etc. , ght . Right. We have had a lot of great discussion among the panelists. We have about half an hour left, so we are now at a time where we can i think open it up, unless someone has something burning they want to say last. We have mrophones in the middle of the room. We have a lot of people lining up. I will do what isually do with some success and sometimes not. We have a lot of time here, but theres a limit. None of you are panelists. We want questions so that we can hear from our experts. It is ok to set up a question with a little bit of background, but lets keep in mind, we want to question and we want to get to it fairly quickly. I will begin with the front microphone first. Yes, sir. Jeff, hurley. Iowa. My question to any and all panelists is have you heard of this quote from abe lincoln, and if so, what are the implications of it, do you agree or disagree . It is in regard to dred scott. In his inaugural address, he said the candid citizen must confess thatt is the policy of the government on vita questions affecting the whole people ito be irrevocay fixed by decisions of the Supreme Court the instant they are made in ordinary litigation, the people, we the people will have ceased to be our own rulers , having to that extent practically resigned their government into the hands of that eminent tribunal. Im just wondering if he was way out of bounds. I have used that a lot of times in argumentation. not sure you would get a lot of disputeecause the physian he was responding to was that the Supreme Court decision foreclose all other interpreters in all other contexts from digreeing. That isot a pition that i donthink anyone today on any spectrum or any context takes thatind of hardline view. The real bite of president lincolns comment is that the Supreme Court is not the only intereter of the constitution. There are lots of interpreters, data officials, jurors certainly the Supreme Court has power over courts inferior to it. It does not have power over anybody else. In the back. Hi, Randy Barnett from georgetown law. I have a genuine goodfaith question for randy and tara. If i share with you the belief that there is such a thing as vertical started sizes stare decisis. What is your conception of the holding of a case, which i think is crucial to knowi what the scope of precedent is, and how would that perception be reconciled with the fact that at the founding, the Supreme Court issued opinions justice by justice and did not issue opinions of the court like we see today . Sure, it is a great question and plugs into the debates we have been having about methodological precedent and chevron. Maybe i will set the stage a little bit to contextualize based on what randy said. It has been implicit in what we have discussed so far. You dont get there until you define what the precedent is, what i think of as the scope. En an opinion we all agree with well agree is wrongly issued, not all of it binds. That starts to get us down the road, but if you look at the realm of Supreme Court opinions, there is a lot of stuff that is not obviously holding but that gets treated as binding commonly , vertically, for example. I would think of it as a spectrum. On the one hand, you have got the targeted application of legal rules and specific fts of the case. That idefinitely going to be binding vertically. At the far other end, you have tara as alluded to as the broad methodology of interpretation. If the court says in all future cases,egardless of the constitutional provision before you, lower courts must be originalist, i think that is a much harder case to say is binding, this is a methodological precedent that i think is prey broad. What gets hard for all the spots onhe spectrum in between those two, and there are tons of them, right . The doctrine of strict scrutiny. You need a compelling interest to uphold it. That applies to every statute that has a contentbased restriction on speech . Similarly, gary mentioned chevron. Even though i have defended a pretty strong version of precedent, i agree that chevro is beyond the scope of precedent. I have argued that chevron does not get binding effect because what it asks of future judges is to make an interpretive inference about statutes that are not presented to the court in chevron, so i thinkt goes too far. I think it is a really difficult set of issues. To my mind, the best we can do and what i have tried to do is focus on the parts that are at least pretty well established, and can we use them to start to build up a tditionbased or practicebased account . Even though i think doctrines like strict scrutiny could create real questions of if they are binding, the courts seem to accept that. The next generation of these discussions will be cases like bruen, for example, and may be cases like chevron that push the boundaries a little far. I dont have my mind madep on all those, frankly, but i think the considerations we have been talking about are the ones that we have to keep focusing on is the noti that at the end of the day, the president is about requiring something of the judge at the end of the day but also allowing the judge to bring t bear the individuaty that is part of why a judge receives a commission in the first place. Yeah, fabulous question. One of the reasons im concerned about the argument that Something Like chevron cannot even be precedential, if it is true, and i think a lot of us on this panel agree, that article three creates a hierarchical system of precedent, if it is also true that the Supreme Court is only going to hear a fraction of lower court cases and so can only serve as the leader in defining the content of federal law, by going beyond the case and saying, hey, here is what you guys should do in all these cases we cannot review, then make holdings of Supreme Court decisions necessarily have to be broader than is this particular action in this particular case valid or invalid . The court needs to be able to establish standards of scrutiny. It needs to be able to establish historical tests if that is what it decides to do. Even if the Supreme Court cannot say go to originalism, it kinda means to be able to do something in between. I will say as a matter of practice, thiss not something we should overlook. Lower court judges really Pay Attention to everything in Supreme Court decisions. There is empirical work on this, even something we would all agree is dicta has a tremendous impact in the imperial federal judiciary. I think when we are thinking about the theories, we also have to look at how much our theories may actually be misaligned with what is going on in the lower federal court. There is a precedent in my court where our court said there was dicta and there was dicta an then there was Supreme Court dicta. [laughter] in the front. Thank you to the panelists. A great discussion. My question concerns bruin. There has been a lot of criticism of ruin and its methodology from the standpoint of those finding how difficult it is due to the history and tradition analysis for lower courts. They are very busy, and also many practical consequences. My question, though, is how much of this is just it takes time to work things pure . So how many first minute cases have there been and how many for the minute cases have there been before we get to a more coherent doctrine . Im wondering if rather than bruin being necessarily incorrect, it just takes years of lower courts percolating and deciding cases, and you get different District Courts making decisions and it starts to coalesce . It is a beautiful tiein with Randy Barnetts question because it goes to what it is that you get out of decisions. Formally, what you get out of a decision is a judgment. The thing that deprives people of life, liberty, and property is not the opinion. The things that deprive people of life, liberty, and property the president can execute that the Court Considers a judgment. The explanation for the judgment, how far it goes, to what other circumstances it covers, how much content are you proving to the legal terms that form the basis for the judgment, you are absolutely right. That may take a whole series years, decades in order to get a larger flavor of exactly what it is that the content or the legal norm consists of that is generating these judgments. Going back to something that tara said, nevertheless, you can have a criticism of bruin. I think it is cogent that if it does not focus on where you should look at the history, if its in 1860 or 1789. That is something the court should be clear about because if we have those judgments, we are going to get to the results much more quickly than if we are confused about even where we are to look at matters, so i think that is something the court needs to be very careful about, but precisely because of the point that lower courts will look carefully at what the Supreme Court does in this respect and if the Supreme Court is clearer and not sloppy about these things, will percolate much more quickly, and that is an advantage for the rule of law. I think originalism and certainly changing the law puts i think an even greater premium on clarity so that whatever the shock to the system is of course, there wi be a shock to the system in changing the law is the least possible to get the right determination, and that i think the court may have fallen down in in bruin. First, i want to give a shout out to brian williams, which i meant to, who has written about lower court originalism and raised some of these concerns. I think one can always see better, right . I also think it is important to recognize i understand that it is hard to define doctrine, if you are a Supreme Court justice or court of appeals judge. There is a lot to do. There is a huge desire often to decide only the case before you. Sometimes thats the only thing you can get to or find votes for, depending on if you are a panel or the u. S. Supreme court. What im advocating is an effort to do more and to do better, and i think the Supreme Court can. I think when you look at various doctrines, yes, they can get worked out over time, but they can get it worked out a lot more quickly when the Supreme Court issues clearer decisions. The effort should always be in my view to do that, even recognizing that realworld judges are always going to come up short some of the time. Next turn is the back. Thank you to the panel. Darren anderson from columbus, ohio. Judge moore wrote and spoke a lot about older opinions he did not necessarily agree with and that might not have been based necessarily in the constitution, but he nevertheless said some of those opinions need to be upheld because they are so deeply embedded in jurisprudence. Is the deeply embedded argument valid justification for upholding bad law . No. [laughter] Justice Scalia thought the same thing, by the way. He actually had a very strong belief tt if there were established allices, institutions built around something, no matter h bad i was, he analogized it to adverse ssession. This raises a question i have be curious about. That is, it is true that in his writing about started sizes starryecisive staree cisis, clarencthomas has written on this and also cited clarence nelson, and i wonder to what extent kaitlin olsons own assessment of demonstrably erroneous precedent caleb nelsons own assessment of demonstrably erroneous precedent compares with yours. It goes to how strongly you feel something is a mistake before you declare it a mistake. Some of the reasons i suggested thatm dubious about failure about thayers rule of statute, i am also dubious about demonstrably erroneous rather than erroneous if its not demonstrable, how is it erroneous . Something approximating beyond a reasonable doubt mental state, i dont think that is necessary in order to figure out what you think the answer is. If he means by that, which i think he does, that that heightened standard of proof, i am open to arguments on that, buskeptical. Ok. Next question from the front. Y name is tom fogarty. Im a student duke law school. Professor mcginnis, you mentioned before how we cannot simply do stare decisis and precedent as it was done back in 1787, but today as we attempt to redefine what stare decisis looks like, to what extent is the practice of precedent and st are decisis relevant when we look at weather or not to overturn a decision . It just shows in my view that there were things that the courts lk at other than the correctness of the decision to apply or to retain a precedent, and the most important, i think, is relied i could conceive in some other world, we could think of maybe some other consequential effect, so i think that is really what it tells us. Exactly how we way that how we weight that in other matters i dont think common law tells us and once one decides this is a matter of common law, things can change. I dont mean in a way that is just kind of a cost benefit analysis, but in the debate about how common law changes, it has to change in courts with much more general issues. I have offered some reasons why it should now embrace perspective overruling over rulings that try to capture thats about our society that were not present at the time, and that is the advantage of understanding precedent as a common law rule. It is not set in stone, but judges have to be responsible in reflecting changes to reflect real transformations and not just change them willynilly according to what their preferences are, and that is always a difficult matter once one entrusts judges with an kind of common law responsibilities. Ok, in the back. Good morning. My question was regarding the point about the need for clarity and the drawbacks of more narrow holdings. Im wondering on the flipside how i want to hear about how the court could potentially do that without running into the dual risks of giving advisory opinions and preventing their ability to explicate doctrine in a more nuanced way in the future. If you have a broad president you have to narrow versus having a narrow president precedent you can expand. I think this is along the lines of debates over Holding Versus dicta. Can precedents go beyond deciding the case at hand . I think that in a legal system, the case is yes, and we disagree about how broad they can go, but they can go beyond deciding the case at hand, and one of the things i have tried to underscore is that the Supreme Court can only perform its constitutional function as a hierarchical leader of the federal judiciary if it can go beyond the case at hand, even if they were deciding 150 are, my preference, 400 or 500 cases a year. It would still be only a drop in the bucket as compared to what lower courts do, so i think if that is incorrect, we have lost our hierarchical system, and i think that is at odds with the original meaning of the text of article three. I do think it is a fair point to say, what if we are going in a new area and we dont really know what to do with it . I think for example, Justice Scalias decision on heller is quite insensible on these lines. The Supreme Court recognized an individual right to bear arms. Would you agree or disagree . That was a very new thing, and Justice Scalia i think very understandably said we are not going to decide everything here, but that was 2008, and one would have thought that by 2022, when the Supreme Court cited bruin and scores of lower Court Decisions were out there to help guide the court, the court could have done a lot more in bruin, so it is not that i think justices can automatically come up with great answers in every case, but i do think the goal should be to strive that rather than siving to decide cases on the narrowest grounds. One more thought on that, and this is trite and but now banal, but if we had a scheme of coming up with youhen, you lose, you win, lose, or degenerate precedent out of that, i would think by the time we get to 1788 a we had a term like judicial power, it is contemplating something quite different, contemplating the judgments of legally binding thingsre actually based on reasons, and thats where you get the notion that it can go beyond the case at hand. Because if the judgment exists because the text means x, now youve got that for the next case and next case as well, so i thinthat notion is baked into article three. In the front. Thank you all for your compelling dialogue. Im a law clerk and georgetown law graduate. I would like to hone in on this issue up reliance. It seems clear that for the star e decisis originalist, the issue of reliance is a paramount factor in the analysis, but this is complicated by the fact that alliance is sort of a nebulous concept. What manner or quantum of reliance is required . Is former judge lee of the utah Supreme Court correct that only reliance that establishes rights of property contract financial affairs, only those types of precedents can have decisionaltering force, or perhaps is Justice Oconnor correct that other precedents can generate societal reliance . I wonder if you have thoughts on how we define and apply this concept of reliance. Sure. Great question. I would take the categories you mention and add one more. Heres what i mean. You had the kind of targeted private reliance connected to Investment Bank expectations, reliance of the ord around contractor property, and i think you have a long established practice of treating that reliance is legitimate to consider, though i think it can be hard to evaluate in lots of cases, but at least comparativy, it is something the court is comfortable considerg. I would add a second category where the courts approach is uneven. There is a sort of plic reliance in the governmental sphere, the idea that Supreme Court edicts lead legislators and other Public Officials to take actions. Those actions cost money and take resources and time, and there is a question if that sort of reliance out to be part of the judicial calculus, and if you look at Supreme Court cases, you will find different answers, even in relatively recent cases. Im of the school that public reliance should matter, that if they is revisiting decisions undermining legislative inaction, that is a relevant conseration. It does not mean that sets a precedent necessarily. There still might be countervailing and overwhelming reasons to overrule, but i think it is an overwhelming part of the judicial calculus. The third category you mentioned, the broader societal interest, i think that is tougher. I think they are hard to define and strike me as very hard for any court to specify with any sort of confidence level. To my mind, to the extent there is a broader societal concern for stability, which i think there is, i think that is built into why there is a doctrine of stare decisis in the first place, why there is a esumption of precedent in the first place. I would like to see those sorts of reasons, not something in individual court should try to do on an individual case. I wonder if societal expectations and reliance were legitimate considerations in precedent, would we have ever gotten overruled with plessy. I think what is common betwn randy and i is the common law nature of it because it is considering the factors in the common law. We have to consider jicial capacity, and i think it is difficult for judges to determe what societal reliance is. That is why i think that really is not a plaible part of a common law doctrine of precedent. Ok, next question at the back. Someone still there . Yes, sir. Im a former law clerk to two federal clerks. My question has to do with perspective overling and that theory. How would that functionally work for cases and its penumbra and emanations . More concretely, would it be limited to facts or Legal Framework along with the relying cases that have been built upon it . At least froyour comments, i think you are talking about perspeive overruling, but your discussion seems much more like cutting back to me, so i propose two aspects, one is perspective overruling. I could say how that would work. If we look at griswold, we would say we overruled this cometely root and branch but we wouldnt overrule it in this case and so it would be next time we would apply it. Im not sure how much difference th would make in that context. Im also not sure that would be a wise decision. Everyone sort of accepts griswold, i am not sure that would be the best idea for the court to go down that route. Another way of thinking about my suggestion about president s we would cut back on precedent. We are not going to for instance develop some idea of substantive due process on which it may depend. So we are going to back in some way. Thats another possibility. Those are two different kinds of ways of limiting precedent. Im not sure how we would do it in each of those cases, but they are very different. One is a way of changing the rule only for the future and the other is not changing the rules for the future, changing the rule also fothe past but cutting what the Supreme Court has done back to a place where it really isnt going to create many huge reliance costs but will be closer to the original meaning. We are really out of time. I will take one last question from the front. Lightning round. Stare decisis really means standby the decisions and dont disturb what is settled. If settled precedent is the starting point, does that create a better Analytical Framework . That goes to e question of whether what you meaby precedent is here is one of this things in the stack of five decisions the court just issued or whether youre talking about longestablished lines of authity drawing on natural reason. Its a very difrent conception of what it is that you mean by precedent. I think thats exactly right. Please joine in owing their appreciation to this panel. [applause] house and senate have recess for the holidays and will be back in the newear fothe start of the seco session of the 118th congress. The senate convenes on january 8 and the house on january 9. Both chambers faceo upcoming federal dget deaines to avoid a government shutdown. We are awaiting the other team, the other side of the chamber to come forth with a number we cangree un. Leader mcconnl and iill figure out the besway to get this done quickly. Neither mcnnell nor i want a shutdown. Cspan, your unfiltered view of government. 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