Transcripts For CSPAN2 Two Former U.S. Solicitors General Preview Supreme Court Term 20220929

Were very glad to have you join us, whether youre here in person or watching online or on television. As was just mentioned my name is zach smith and i serve as a legal fellow and manager of the Supreme Court and Appellate Advocacy Program here in the center for judicial studies at heritage foundation. The Supreme Court is set to begin hearing arguments for the cases its new term next week so we thought this would be the perfect time to discussion some of those cases and preview what we can expect. While the courts last term contained a number of blockbuster decisions dealing with abortion rights, gun rights, religious liberty and free speech issues just a name a few, the court this term will also tackle a number of important cases and issues. Everything from affirmative action to redistricting, to religious liberty cases, to cases that touch on the abilities of court seekers, challenges, Agency Actions and structures. To help us break it down. Im joined by two advocates who need no introductions so ill keep them brief. First is paul clement. Paul argued over 100 cases from the Supreme Court, including several of the biggest cases from last term, including coach kennedy case, kennedy versus bremerton and School District and a major Second Amendment case new york rifle and Pistol Association versus broom. And the recent formed lawsuit, clement murphy, he served as 43rd solicitor general of the United States. Joining paul is jeff wall, jeff is currently a partner at sullivan and cromwell, where he leads the front Supreme Court and appellate advocacy practice. Jeff has argued 30 cases at the u. S. Supreme court and he briefly served twice as the acting solicitor general. Please give me a hand as i welcome paul and jeff to the stage. [applause] well, thank you both for joining me today to talk about the courts cases that it will hear this term. Since we have a lot to cover. Well get right into it. Paul, could you tell us about one of the first cases the court will hear when it begins arguments next week . Sacket versus epa. Thank you, its great to be back at this event which i think is an annual tradition to kick off the term. So very happy to join you here at heritage. Sacket against epa case there may be some people in the audience, seems like, it sound familiar, wasnt there another sacket against epa case . And this is a case that sort of can think of as being a repeater, a case that the Supreme Court decides once, sends it back often to the 9th circuit. And then gets the case back a few years later and i think often in these repeater cases, you can be pretty sure that the court is going to sort of finish the job that it started the first time around, and i think, that could be the case in the sacket case. The first time around, the question was really whether the sackets who were trying to build on a lot that they purchased near priest lake, they were the epa tried to stop them from building on their lot and not only, the first time time they tried to stop them and basically said were going to impose a bunch of penalties if you go forward and you cant challenge any of this until the end of the administrative process and the court i think unanimously last time around said no, thats not right. The ability to challenge before essentially the government precludes you from being able to develop your lot. So the question goes back to the 9th circuit and now the question that the 9th circuits decided and is before the court, is another one that might sound kind of familiar from a previous Supreme Court case and that is, what is the reach of the waters of the United States for purposes of figuring out the scope of the clean water act . And this was an issue before the Supreme Court, you know, about 15 years ago in a case called rananos that i actually argued while i was in the sgs office. And as often happened in the court back at that time, there were four justices that had a very clear view that would have limited federal jurisdiction. There were four justices that had a very clear view that would have extended the jurisdiction to Properties Like the sackets. And then there was one justice, his name is Justice Anthony kennedy and he had the deciding vote in the case and he wrote a separate opinion that talked about the need for a substantial nexus between the water and at issue and the wedland at issue and the navigatable water. And eight other justices didnt think that was the right test, but at the Supreme Court the number five is incredibly important. So Justice Kennedys separate writing became the doctrine that controlled in the lower court and controlled over a decade now. I think its fair to say that the lower courts have had trouble applying that test and i think thats a big part of the reason that the case is back before the court this term. The underlying question, i think, in, you know, i may be betraying the fact that i argued this for the Government Back in the day, but the underlying question is actually kind of hard because i think everybody can almost concede that in the context of regulating kind of the water and trying to keep the water clean, what kind of matters at some level is whether the water is kind of connected through a series of tributaries or streams such that if you pollute water someplace, its going to get into the rest of the stream system. So, from that standpoint, it probably easy to say if you have an isolated lake that doesnt drain into anything, thats not covered. But if you have something, even though it doesnt seem like a navigatable waterway, but if you dump chemicals there and they eventually get into and pollute the navigatable water ways, it seems sensible that the regime might reach that far, but the problem is, like the people who pass the clean water act were not stupid and they recognized as much and yet, they still wrote a statute that didnt try to cover everything and used this definition for water for the United States. So, congress, even at the time kind of recognized that the regime that it was enacting was kind of somewhat imperfect. So, thats why the issue, i think, has recurred, again and again, this is really like the third or fourth time the court has wrestled with this question, particularly in the context of wetland that are adjacent to navigatable waters of the United States. And so, you know, i dont want to get in the business of sort of predicting results, but given that in the raponos case, Justice Scalia wrote the plurality opinion that would essentially restrict the scope of the navigatable waters and those thinking highly of Justice Scalia and the fact that this is a repeater and the courts took this case and the context where they already had sympathy had for the home owner, i would say this sets up, i think, pretty well for the sackets. Look, i dont have much to add to pauls description. I was at the argument, what was it it now, 10, 11 years ago. It did not go well for the government. They were all fairly surprised that the sackets couldnt challenge and surprised that the property, which is separated from my water by a considerable distance, a ditch, a road, was a a part of the water of the United States and so, now that that question is back, i think paul is right, that Justice Scalias plurality is set to carry the day. Jeff, lets continue with you. The case that the court will see, merrill. Yes, its if youre not a Voting Rights advocate or scholar that you would be following. Its a case about section 2 of the Voting Rights act. And section 2 prohibits the denial or abridgement of the right to vote on account of race, but under some amendments that were put in place in the statute, it defines that denial by saying that anytime you dont have equal opportunity for race or what was it mean equal opportunities. In a case called jingles many years back, the court set up a complicated test for what that means. Youve got three preconditions and move to totality test. And you look to see whether minority voters are sufficiently large, draw a district where they would form a majority. In lingo, majority minority district. And see if they vote cohesively as a political block and then you look to see whether theyre outvoted by majority voters who are also voting cohesively as a political block. If all three of those jingles, preconditions are met, then you move to a totality of the circumstances test to determine whether theyve been denied the right to vote, and whether you should draw the district lines differently. So, all of this is whats known as a body of law and vote dilution. Whether youve diluted the power of minority voters t elect the candidates of their choice. So, to take a step back for just a second, about a year, year and a half ago, the court decided a case out of arizona, its not a vote dilution claim. Its a case about certain time, place and manor of restrictions. Arizona said you couldnt vote out of your district and only certain people could take your ballot in, ballot collection and some call it ballot harvesting. It came up under the court under section two and the court said, you know, it passed and it doesnt work well in the nonvote dilution, time, place and manner restrictions and were going back to the text of section two and Justice Alito in his opinion tried to adopt still a multifactor test because the totality of the circumstances test is embedded in the language of the statute, but something more tied in the majority view, the text of section two. Now that the court has done that, adopted this test for nonvote dilution claims under section two, the questions now back up there, what should we do with vote dilution claims . And what happened in alabama, which is where the case comes out of, is that for many years, alabama has had one majority minority district where africanamerican voter form a majority of the district. But the claim was that with population changes there should be two. And the three judge panel agreed with that and said, to the state, youve got to redistrict in a way that draws two districts, where the minority voters make up a majority and could elect a candidate of their choice. Alabama saw a stay in the Supreme Court which they got 54. And the liberal justices wouldnt have granted the stay and the Supreme Court justice said put it on our docket, but i wouldnt grant the stay. Justice cavanaugh joined by Justice Alito saying, look, im granting the stay because i wouldnt allow interference this close to the election, the primarys coming up in six or seven weeks and were not going to redraw the district lines a week and a half before they go to the polls in the primary and the more conservative justices voting for the stay, but not writing separately so suggesting that they may have granted on the merits. So, alabama got the stay, but the court put the case and put it on its docket. Alabama makes a pretty aggressive play for doing on the vote dilution side, what the court d n revisiting jingle and diminishing the use of race, and the defenders of what the threejudge panel came down and the folks that challenged the old alabama case, and the reason i think its important, if the challenger succeeds in getting the court to say, look, you cant consider race too much in a way that moves districts from where they would end up using race neutral redistricting criteria, like communities of interest, and compactness and you know, existing lines in the old plan, that would be a pretty significant change in the way that section two cases get litigated depending on what the court says and how much it changes. So, i think in the Voting Rights context, its a case that could stand to be really important, depending on what the court says on the merits. Well, lets stay with the electrelated theme and can you tell us more about moore versus harper . Sure, id be happy to talk about this case and this case is referred to i think as the independent Legislature Theory or kind of other slightly shadowy terms. But i think ultimately, this is a case that will be about the text of the constitution because the framers kind of wrestled directly with the question of how to deal with elections, particularly congressional elections. And where the best authority to put the restrictions, regulations, time, place and manner and the like on federal constitutional actions. And where they settled in the text of the constitution is it to give that authority to the state legislatures. And the use you know, that its specific. Its the constitution doesnt give it to the states, it gives it to the state legislators. So, if you were just looking at the text of the constitution, it would seem like there was pretty strong argument that when the state legislature comes up with districting lines, assuming that the election clause is fully applicable to districting lines, as well as sort of times of that the polls being open and the like, it seems clear from the text of the constitution, that if the state legislature sets that, then maybe the state courts arent in a position to second guess that applying state constitutional law or state other law. But a few years ago, the Supreme Court in a case called the Arizona Republican legislature against the Arizona Independent Districting Commission sort of came across the same text and basically said its okay for arizona to give the redistricting authority. Take it away from the state legislature and give it to an independent commission and that was a 54 decision and the chief justice was in dissent, along with Justice Scalia and Justice Thomas and Justice Alito. So i think in some respects, the court is going to be revisiting this request he, in the context of a redistricting case where its the state legislature that did the congressional districting and a state court has essentially countermanded it and i think its going to be considerations to start, considerations of textulism. And to wax into being a law geek for a second, i think whats interesting about this issue, a lot of these in these electioneering cases and redistricting including the one that jeff was talking about, theres kind after federalism overlay and the idea how much does a federal law like section 2 kind of interfere with the authority of the states to kind of structure themselves the way they want, but in the specific context of congressional elections, you know, what the state legislature is doing is actually i think the right way to think about it is exercising expressly delegated federal power, so its not its not just kind of drawing these districts as part of its residual sovereignty, its drawing these districts as part of the specific delegation from the federal constitution to do something thats distinctly federal. Namely set the rules for a federal constitutional election. And i think if you think about it in those terms, it does kind of strengthen the argument that really, there shouldnt be a basis for a state court applying state law to interfere with what is really a federal authority thats being exercised by the state legislature. But, obviously, this is a hotly contested case and i think that people, particularly on the political left sort of view this as sort of a grave threat to the role of the carts in superintending elections and the like, but you know, i do think theres a strong argument thats being made on behalf of the North Carolina legislature here that really, you know, the framers thought about this issue specifically and its not that they thought that these issues werent fraught with controversy, they just thought it was better to give this controversial role to a politically accountable body like the state legislatures and not a relatively unaccountable body like state courts. So, this is one where maybe paul and i have a slightly different take in the sense that a lot of these cases, sort of one side wants to be the textual and originalism and one is policy concerns. Im interested in looking how the cases line up. It seems to me that folks opposing the independent Legislature Doctrine has some fairly plausible and originalist arguments and election law gives a part to congress, too, in the second part of the clause and thats subject to president ial veto and judicial review. So, their argument is, look, when youve vested the power in state legislatures the same assumption, subject to the same law making processes and they say there were some in between the articles of confederation and articles of constitution and nobody seemed to think those were when they adopted the same language in the articles of confederation. So, its interesting that youve got some pretty plausible textualists arguments on both sides. On the conservative side, you have what paul sort of hinted at, which is a concern that state courts are taking the vague constitutional provisions and using it to override what the state legislature has done and sometimes doing it on the eve of elections and that seems to really be troubling some of the conservative justices. So, im particularly on the right side of the court, im really interested to see kind of what they want to talk about as the argument, because, i think both sides have tried to marshal the kinds of arguments that they tend to care about. Well, shifting gears a little bit now. Jeff, can you tell us about what ive heard the case, the hog case, National Pork Producers Council versus ross. This is a case about federalism at the end of the day. So, you know, california does not like the way that pork producers are treating their animals. And so, california produces very little pork. I think they have like, you know, 1 of the you know, of pork production happens in california. But california consumes about 13 of the nations pork. So, they dont they dont produce it, but they consume it. And california in this proposition they adopted has said, if you want to bring pork into the state and sell it to folks here in california youve got to produce them under certain conditions. Youve got to have a 24foot square pen and sows turning around without hitting the barriers and that kind of thing. These are not conditions that almost any commercial current pork operator could satisfy. So, i think that everybody in the case can see if californias restriction takes effect, that it will force many pork producers to change the way that they do things. And the question is, can california do that . Well, theres a doctrine that i learned about in law school and paul did, too. Thats ready made to Police States doing things that go on in other states, but also, affect them. Its called the dormant Commerce Clause. Thats what its all about, keeping states from throwing up barriers to interstate commerce. And so, the National Pork Producers Council says, on two different grounds, this is a dormant violation, that california is looking at extra territorials and trying to govern the way that pork is produced outside of california and that it cant do. If were wrong about the extraterritorial thing, but of the nexus regulating pork as it comes into the state, theres bruce church, called the balancing test, i learned about in con law, the states law still has to be measured under some cost benefit weighing and does californias interest outweigh whatever the costs are that its imposing on the out of state economic actors. And so, the council says even if were not right about the extraterritorial. Were right about the balancing, and the costs are severe. California comes back with an argument that, like, you know, every Justice Thomas clerk mt world would love, what is this dormant comment clause thing of which you speak . Its not a constitutional thing. These cases are made up, they say, and even if theyre not, the cases are narrower than the counsel leads them. The reason i think the case is so interesting, not only interested in making bed fellows on the constitutional side, because the folks who are most vocal about their criticism of the dormant clause, and those likely to be skeptical of california regulation, if the Court Upholds it and some combination of justices allows california to move forward. Theres a really serious question about what kind of vulcanization follows. What about when arkansas says, the pork has to be produced in its current method in order to be sold in our state . Right . What are the pork producers to do . Or to take a much more controversial example, what about when states say, you can only do business here if you have particular kind of abortion policies . And some states say we want you to have abortion friendly policies and some say, we dont, right . And the sort of possibilities when you start to play out the hypotheticals are get very difficult very fast and the question is, like for all the talk of federalism, and for all the criticism of the dormant Commerce Clause, what will the justices do when faced with the prospect to states could very quickly begin to pass laws that would be in direct conflict . Now, with Justice Scalia. The former bosses say thats why we have the real actual Commerce Clause and congress can step in and do anything. But in the political environment, the prospect that congress would to something about these things are fairly low and so that prospect may seem to them more academic than real, so, again, its another argument that im maybe im interested to see how it goes. I agree, its an important question, i would say, just to id start with a practice tip for anybody in the position of trying to vindicate the Commerce Clause and try to get this kind of protectionist state action struck town. I wouldnt call it the dormant Commerce Clause, thats asking for trouble. Its just a Commerce Clause. Theres a long line of cases that interpret the Commerce Clause and put restrictions on the state. What i think is interesting is, kind of even i cant speak to Justice Thomas, but at least to Justice Scalia and most of the right side of the court. There are as expects of that Commerce Clause jurisprudence that the justices are more comfortable with, the idea you cant expressly discriminate against out of state commerce and you cant regulate extraterritorially and then theres this residual aspect of the courts Commerce Clause jurisprudence balancing, that traditionally the right side of the court is skeptical of. There are a lot of areas of the laws where you get to an interpo of applying a test and in theory, youre supposed to apply to the test, but you know the case is over one way or another. In First Amendment case, if you can get to strict scrutiny, youre basically supposed to win and the government is supposed to lose and in the same way, if youre bringing a Commerce Clause challenge and you get balancing, youve lost. And so, it will, you know, for the court, i guess my you know, my sense is that they may try to work really hard to put this in the extraterritorial box, even though it doesnt fit there perfectly, as opposed to really reviving balancing, because if they did the latter, i think it would be a very big development, but a very surprising development, frankly. And though, as jeff says, you know, maybe theyll side with california in the end, but it does seem like compared to most cases, the prospect for vulcanization is kind of more sort of obvious here than in a lot of the cases where its kind of obscured because its just like tax rates or Something Like that. I think jeffs point about whats a pork producer to do is a very fair one. Paul, could you tell us about the 303 creative . Sure, well, speaking of cases where strict scrutiny is applied and turns out not to be fatal, which is a rare bird. Thats essentially what the 10th circuit did in the 303 creative case. This case more broadly, i think, is really a followon to the Masterpiece Cake shop case from a couple of terms ago and it raises one of these, i think, kind of very interesting questions, almost kind of a collision of two doctrines in kind of constitutional or at least statutory law. One of course is nondiscrimination principle applied to Sexual Orientation and samesex marriage, thats something that obviously led the court to find constitutional protection for samesex marriage and that was kind of one of the central doctrines, i think, or legacies of Justice Kennedy on the court, is you know, in a number of cases kind of culminating in that case and he provided protection for Sexual Orientation. And then, on the other side, though, is this kind of strong, sort of First Amendment doctrine, sometimes moored in free exercise principles, but in this case moored exclusively in free speech principles that, you know, generally speaking, if youre engaged in sort of expressive activity, you dont have to engage expressive ak sifts activities to disagree with. The right to speak includes the right not to speak and those two doctrines are on something of a collision course here. You have somebody who does they have a company thats involved in web design. They are, you know, they have a religious belief and a First Amendment freeway speech belief that leads them to think that they are happy to provide these kind of services for traditional weddings, weddings that, you know, quote, bible verses and the like, but theyre not willing to provide the same service for a samesex service, and that is something that they believed would be contrary to colorado law, as interpreted by the colorado civil rights commission, kind of analogously to, in the Masterpiece Cake shop which also came out of colorado. So they essentially brought a declaratory judgment action challenging that and essentially satisfying saying they have the constitutional right to operate their web Service Consistent with their beliefs and free speech beliefs. Its postured different from Masterpiece Cake shop because you dont have the actual enforcement decision and theres the sense that this is kind of case is being kind of more affirmatively to be set up to masterpiece and im not sure if that is concerning the justices. Frankly, one of the things well do is not give the court the out it took in the Masterpiece Cake shop where they were able to point to statements made in the proceedings before the Colorado Commission and used them as a way to decide the case without reaching the broader question. So i think this case will cause the court to really confront and kind of wrestle with this conflict between the two doctrines. And as i said, this case is teed up to involve only a free speech claim, but i think in the background its going to be the idea of, you know, how to free exercise principles apply in this context. What happens when free exercise principles come in conflict with this kind of nondiscrimination principle. I think those thats an issue that the court has kind of danced around a couple of times. I think its a very important issue and so, i think in a sense, this will be a case where its important to watch not just what the Court Decides on the facts of this one case, but to kind of what they see more generally. Because i think this case will probably provide a lot more clarity than the Masterpiece Cake shop cases. And in another sense, too, which is, you know, masterpiece is about a baker, and there were a lot of folks on the sort of nonbaker side that said, look, its not really speech, its baking a cake. Maybe its a little artistic, but not really, so, this is kind of free speech, not at all. Or free speech light. And now theres a website, and no way to get out of confronting the question right around, and presented with the religious liberty concerns in the back drop. Its very hard to see now how you can get away from confronting the First Amendment question. Jeff, could you tell us about a pair of closely watched cases . This term, the harvard and unc cases . Look, these are all cases you probably know about, right . I mean, paul was involved in a pair of cases back in michigan, back in the day, werent you, where Justice Oconnor famously said, look, i think the use of race in admissions and Higher Education one hopes, i think she said, we wont need it in 25 years and were not quite at 25 years, but you get the sense that the lease may be coming up a few years early. So, there are two cases, one is harvard and one is unc. Unc is public governed by the equal protection clause and harvard, title six based on the discrimination based on race. And the clause and what does title six mean . Two claims in the case, the first case or first argument, you cant use race in considering admissions in Higher Education at all. And the second is, even if you can, the way that harvard and unc are using it doesnt comply with strict scrutiny and the courts test. On the first one, i dont have a lot to add to the briefs. I mean, you all can read all that, you know, the mountains that have been written about the history and original meaning of the 14th amendment, you can look at the dissent, you can look at brown, look at post reconstruction statutes and the briefs and form your own view of what the meaning of the 14th amendment is. I want to focus on the second claim. Because in some cases, if you have a good argument on a second question, it may mean that theyll do the narrow thing and not do the broad thing you want on the first question. This case is potentially a little bit different, which is to say, if the court thinks that argument, that what harvard and unc are doing is in some sense not permissible or not what theyve intended in grass and fisher, it might be in the view of some you shouldnt be using race in the College Admissions process at all because notwithstanding what theyve said in gruter and fisher, the schools are still doing things that they find troublesome. Ill focus just on harvard for a second, the case thats gotten the most attention and full trial and focus of the briefs and the terms used from the briefs from the lower courts opinion. And the challengers, just so you understand the argument, sort of take it in three ways. The first things the challenger says, harvard is racially balancing its class. Look from 2009 to 2018 and treated the class as a pie chart, it would be remarkably consistent across those 10 years, the percentage of students in the class who are white or africanamerican, or hispanic would only vary within a 2 range, except for one or two outlier years where it might go up or down by one more point. But, the pie chart would look remarkably consistent over the decade and the challengers say, that must mean that you are awes using race to try to balance your class. Secondly, the way that harvard is balancing that, affecting whats called the personal rating. Everybody who applies to harvard. We were all scored and you get a bunch of scores and theyre on academics and extracurriculars and fairly objective and you also get a personal rating, meant to assess things like character and integrity and leadership, so its a pretty subjective reading and no one disputes that Asian Americans receive a lower personal rating as a group than other racial groups who apply. Even the district court, which was otherwise fairly favorable to harvard, agreed that theres a statistically significant negative correlation between race and the personal rating for Asian Americans and the challengers say, thats because harvard is using that rating in order to affect the number of Asian Americans who come into the class. Harvard says, no, were not biased in that way. Maybe theres bias that filters in from High School Teachers or guidance counselors, but it isnt us, it has to be somebody else in the process and the third thing the challengers say is, theyre ignoring a race neutral alternative. The reason they need to do this according to the challengers is because they admit they have racial preferences im sorry, preferences, not by race, preferences for the children of donors, faculty and staff, legacies, folks who went to the harvard in the past and recruited athletes and the vast majority of the challengers say of the percentage of class admitted because of those, those kids are white, leaves harvard with fewer spaces and why it needs to balance with the personal rating. And the challengers say that isnt true, that isnt what theyre doing. And so i think what im interested to see with the argument is, how much time is spent on the broad 14th amendment question and how much time is spent on what they actually do. Because i think that some of the conservative justices, and for harvard. They can ask very difficult questions about what the schools are actually doing with race and i dont think that those would be questions suggesting some negative strict scrutiny ruling at the end of the day. I think they would be questions designed to try to show that the schools are not going to be able to use any race in any of the kinds of holistic ways that the court have said are okay. But, you know were leaving this program here to keep our over40year commitment to live coverage of congress. The u. S. Senate is about to gavel in on this thursday. Senators are expected to continue working on extending government funding through december 16th to avert a government shutdown. Current funding expires tomorrow at midnight. A revote is expected to take place on a judicial nomination for the 3rd circuit court