Transcripts For CSPAN2 Two Former U.S. Solicitors General Preview Supreme Court Term 20221001

Upcoming Supreme Court term. Your watching live coverage on cspan. We are glad to have you join us whether you are here in person or watching online or in television. I serve as a legal fellow and the manager of the Supreme Court and Appellate Advocacy Program here in the center for legal and judicial studies at the heritage foundation. The Supreme Court is set to begin hearing arguments next week, so we thought this would be the perfect time to discuss some of those cases and preview what we can expect. While the courts last term contained a number of blood duster decisions dealing with abortion rights, gun rights, religious liberty and free speech issues just to 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 and cases that touch on the ability that challenges Certain Agency action and structures. To help us break it all down, im joined by two advocates who really need no introduction. I will keep them very brief. First is paul clement. Paul has argued over 100 cases before the Supreme Court, including several of the biggest cases from last term, including the coach kennedy case and a major Second Amendment case, new york state rifle and Pistol Association versus brian. Paul conley serves as a partner at Clement Murphy and served as the 43rd solicitor general of the United States. Joining paul is jeff wall. He is a partner at Sullivan Cromwell where he leads the Supreme Court and appellate advocacy practice. Hes argued 30 cases at the Supreme Court and previously served twice as the acting solicitor general. Please give them a hand as i work as i welcome paul and jeff to the stage. [applause] thank you both for joining me today. Lets talk about the court cases it will hear this term. Since we have a lot to cover, we will get right to it. Paul, could you tell us about one of the first cases the court will hear when it hears arguments next week . Paul i be happy to. Its great to be back at this event, which i think is kind of an annual tradition to kick off the term. Very happy to join you and be at heritage. The epa case, there may be some people in the audience who seems like it sounds familiar. Wasnt there another case . This is a case you could think of as being a repeater a case the Supreme Court decides once, sends it back, often to the ninth circuit, and then gets the case back a few years later. I think often in these repeater cases, you can be pretty sure the court is going to finish the job it started the first time around. That could be the case. The first time around, the question was really whether the sacketts, who were trying to build on the lot they purchased near priest lake. The epa tried to stop them from building on their lot and not only the first time around and they try to stop them, but they basically said we are going to impose a bunch of penalties if you go forward. The Court Unanimously last time around said that is not right. You get the ability to challenge for the government precludes you from being able to develop your lot. The question goes back to the ninth circuit and now the question the ninth circuit has decided and does before the court is another 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 . This was an issue before the Supreme Court about 15 years ago in a case i actually argued while i was in the sgs office. 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 this one and there was one justice, his name was Justice Anthony kennedy. He had the deciding vote in the case and wrote a separate opinion that talked about the need for a substantial nexus between the water and the issue with the wetland and the waters. Eight other justices did not think that was the right path. Number five is incredibly important, so Justice Kennedys separate writing became the doctor that controlled in the lower court and is controlled for over a decade now. I thing its fair to say the lower court has had trouble applying that test and thats a big part of the reason the cases back before the court this term. The underlying question i may be betraying the fact i argued this for the Government Back in the day, but the other the underlying question is actually kind of hard. I think everybody can almost concede in the context of regulating the water and trying to keep the water clean, what matters at some level is whether the water is connected through a series of tributaries or streams such that if you pollute water someplace it is going to get into the rest of the stream system. From that standpoint, its not easy to say if you have some isolated lake that doesnt drain into anything that is not covered. But if you have something even though it doesnt seem like a navigable waterway, but if you dump chemicals there and they eventually get into and pollute the navigable waterways, it seems sensible that the regime might reach that far. But the problem is, the people who passed the clean water act were not stupid and they recognized as much and yet they still wrote a statute that did not try to cover everything and used this definition of waters of the United States. Congress even at the time recognized the regime it was an was somewhat imperfect. Thats why this issue has recurred again and again. This is the third or fourth time the court has wrestled with this question, particularly in the context of wetlands that are adjacent to navigable waters of the United States. I dont want to get in the business of predicting results, but given in the previous case Justice Scalia wrote the plurality opinion that would substantially restrict the scope of the navigable waters and given a lot of the current justices seemed to think highly of Justice Scalia, combined with the fact that this is a repeater and the courts took this case in the context where they already had some sympathy for the homeowner, i would say this sets up pretty well for the sacketts. Jeffrey i dont have much to add to what paul said. I was at the previous hearing and it did not go well for the government. Several were fairly surprised that the sacketts property which is separated from any water by a considerable distance is part of a water of the United States. Now that that question is back, i think paul is right and Justice Scalias plurality is set to carry the day. Host if we could continue with you, could you tell us about another case the court is set to hear next week . Jeffrey its a really important case but if you are not a Voting Rights advocate or scholar, you might not be following but it could stand to be very important. It is a case about section two of the Voting Rights act. Section two of the Voting Rights act prohibits the denial or abridgment of the dont of the right to vote on account of race. But under some amendments put into place, it defines that denial by saying anytime you dont have equal opportunity for races to vote. So what does that mean, equal opportunity . In a case called jingles your many years back, the court set up a complicated test it has three preconditions and then you move to a totality test. You look to see whether minority voters are sufficiently large and numbers that you could draw a district where they would form a majority. What is in the lingo called a majority minority district. You look to see whether those minority voters vote cohesively as a political block, and then you look to see whether they are outvoted by majority voters who are also voting cohesively as a block. If all three of those preconditions are met, then you move to a totality of circumstances test to determine whether they have been denied the right to vote and whether you should draw the district lines differently. All of this is his vote dilution whether you have diluted the power of minority voters to elect a candidate of their choice. To take a step back about a year, youre in a half ago, the court decided a case out of arizona. It was not a vote deletion claim, it was a case about certain time, place, and manner restrictions. Arizona said you could not vote out of your district and only certain people can take your ballot in, what is called ballot collection were some people call it harvesting. Arizona had these restrictions in place and it came up in the court under section two. The court says the jingles test doesnt work very well in the nonvote dilution context for time, place, and manner restrictions. Were going to go back to the text of section two and Justice Alito in his opinion tried to adopt a multifactor test because the totality of the circumstances test is embedded in the language of the statute, but something tied to the text of section two. Now that the court has done that , the question is now back up there, what should we do with vote dilution claims . What happened in alabama, which is where this case comes out of, is for many years, alabama has had one majority may ready district where africanamerican voters form a majority of the district but the claim was with population changes, there should be two. The threejudge panel agreed with that and said to the state you have got to redistricting away that draws two districts where the minority voters make up a majority and can elect the candidate of their choice. Alabama sought a stay in the spring court, which they got 54. Estes kagan writing that more liberal justices would not have granted the stay. Justice kavanaugh joined by Justice Alito, saying look, im granting the stay because i would not allow interference this close to the election. The primary is coming up in six or seven weeks, we are not going to redraw the district lines a month and a half before people are supposed to go to the polls in the primary. The more conservative justices voting for the stay but not writing something suggesting they may have granted on the merits. So alabama got the stay but the court took the case and put it on its docket. Alabama makes a pretty aggressive play for doing on the vote dilution side, really revisiting jingles and diminishing the use of race. The defenders for the threejudge panel came down in the boats who challenge the court to stick to jingles. The reason i think it is important is because if the challengers succeed in getting the court to say you cant consider race too much in a way that moves districts from where they would end up using raceneutral redistricting criteria like communities of interest and compactness and existing lines in the old plan, that would be a pretty significant change in the way the cases get litigated depending on what the court says and how much it changes tingles. In the Voting Rights context, it is a case that could stand to be really important depending on what the court says on the merits. Host anything to add . Paul host could you tell us about the case of moore versus harper . Paul this case is being referred to as the independent Legislature Theory or other slightly shadowy terms. But ultimately, this is the case that would be about the text of the constitution because the framers wrestled directly with the question of how to deal with elections, particulate Congressional Elections and where the best authority to put the restrictions, regulations, time, place, and manner alike on federal Congressional Elections and where they settled in the text of the constitution is to give that authority to the state legislatures. It is specific. The constitution doesnt go to the states, it gives it to the state legislatures. If you were just looking at the text of the constitution, it would seem like theres a pretty strong argument that when the state legislature comes up with districting lines, assuming the election clauses fully applicable to districting lines as well as times of the polls being open and the like, it seems clear from the text of the constitution that if the state legislature sets that, maybe the state courts arent in a position to secondguess that, applying state constitutional law or state other law. But a few years ago, the Supreme Court, in a case called Arizona Republican legislature versus the Arizona Independent Districting Commission came across the same text and basically said it was ok for arizona to give the redistricting authority, taken away from the state legislature and give it to an independent commission. That was a 54 decision. Chief justice was in dissent along with Justice Scalia and Justice Thomas and Justice Alito. In some respects, the court is going to be revisiting this question in the context of a redistricting case where the state legislature did the congressional districting and the state court has essentially countermanded it. Theres going to be consideration for starry decisiveness, four stare decisis just to wax into being a log geek for a second that is a sure thing that is interesting about this issue. A lot of times in these electioneering and redistricting cases, including the ones that justice is talking about theres kind of a federalism overlay and how much does a federal law like section two interfere with the authority of the states to structure themselves the way they want . In the specific context of Congressional Elections, what the state legislature is doing is the right way to think about it is exercising expressly delegated federal power. It is not drawing these districts as part of its residual sovereignty, its drawing these districts as part of a delegation from the federal constitution to do something that is distinctly federal, namely set the rules for a federal congressional election. If you think about it in those terms, it does strengthen the argument that there should not be a basis for a state court applying state law to interfere with what is a federal authority to be exercised by the state legislatures. Obviously this is a hotly contested case. People articulate on the political left view this as a grave threat to the role of the courts in superintending elections and the like. But i do think theres a strong argument he made on behalf of the North Carolina legislature here that the framers thought about this issue specifically and its not that they thought these issues werent fraught with controversy, they just thought it was utter to give this controversial role thought it was better to give this controversial role to state legislatures and not an unaccountable body like state courts. Jeffrey this is one where maybe paul and i have a slightly different take. A lot of these cases one side wants to be the champion of textualism and originalism and the other side has policy concerns. Im interested to see where the concern is lighting up but folks of proposing the independent state Legislature Doctrine have some fairly plausible textural and originalist arguments like the clause gives power to congress and the second part of the clause. But thats subject to president ial veto and judicial review. Their argument is when you vested the power and state legislatures, you have the same assumption but its subjected to normal state processes and they say there were some constitutional provisions in between the articles of confederation and the constitution and nobody seemed to think those were a problem in the election clause adopted the same language they had in the articles of confederation. So its interesting. You got some plausible textural us and originalist arguments on both sides and on the conservative side, you have what i think paul has hinted that which is a concern that state courts are taking these vague constitutional provisions and using it to override what the state legislature has done and sometimes doing it on the eve of elections. That seems to be troubling some conservative justices. Particulate on the right side of the court, im really interested to see what they want to talk about in the argument because i think both sides tried to marshal the kinds of arguments they tend to care about. Host shifting gears a little bit, could you tell us what i have halt what i have heard called the bacon case the National Park Producers Council versus ross . Jeffrey this is a fascinating case. Its a case about federalism at the end of the day. California does not like the way pork producers are treating their animals. So california produces very little pork. They have 1 of Work Production in california by california consumes about 13 of the nations pork. They dont produce it but california and this proposition, if you want to bring it to the state, you have to produce it under certain conditions. You got to have a 24 squarefoot pen in the sow has to turn around without hitting the barriers and that sort of thing. These are not conditions any current commercial pork operator could satisfy. I think everybody in the case concedes if californias restriction takes effect that it will force many pork producers to change the way they do things. The question is can california do that . There is a doctrine i learned about in law school and all of us do that is readymade to Police States doing things that go on in other states but also affect them. Its called the dormant Commerce Clause. That is what its all about. Keeping states from growing up barriers to interstate commerce. So, the National Pork Producers Council says on two different grounds, first they say california is trying to regulate extraterritorial. Its just trying to govern the way it is trying to produce outside of california and that it cannot do. And even if it is wrong about the extraterritorial thing and does have enough of a nexus because you are regulating the pork as it comes into the state, there is a case that is called the pike balancing test that i learned about in common law which is the states law still has to be measured under some cost and if it way and does californias interest outweigh whatever the costs are it is imposing on the outofstate economic actors. The council says even if we are not right about externality, we are right about the pike balancing. The costs are really severe. California comes back with an argument that every Justice Thomas clerk in the world would love what is this dormant Commerce Clause thing of which you speak . Its not a constitutional thing. These cases are made up and they cases are narrower and the reason the case is so interesting is not just because it makes for interesting bedfellows on the constitutional side because the folks who have been most vocal about their criticisms of the dormant Commerce Clause are most likely to be skeptical of the california regulation. If the Court Upholds it, if some combination of justices allows california to move forward, there is a serious question about what kind of balkanization follows. What about when arkansas says pork has to be produced in its current methods in order to be sold in our state . What are the pork producers to do . Or to take a more controversial example, what about when they say you can only do business here if you have particular kinds of abortion policies . Some states say we want you to have abortionfriendly policies and some say we dont . Sort of possibilities when you play out the hypotheticals are they get very difficult very fast. The question is 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 that states could very late begin to pass laws that would be in direct conflict. What Justice Scalia would say thats why we have the actual Commerce Clause congress can step in anything. In the current political environment, the prospect congress would do something about any of these things are pretty low so that prospect may see more academic than real. Its another argument im interested to see how it goes. Paul i agree it is an important question. I would start with a practice tip for anyone in the position of trying to vindicate the Commerce Clause and get its protectionist state action struck down. I would not call it the dormant Commerce Clause, thats asking for trouble. Theres a long line of cases that interpret the Commerce Clause to put certain restrictions on the state. What i think is interesting i cannot speak to Justice Thomas but to most of the right side of the court, there are aspects of that Commerce Clause jurisprudence the justices are more comfortable with the idea you cannot expressly discriminate against outofstate commerce and you cannot regulate extraterritorial he. Theres a residual aspect of the Commerce Clause jurors prudence balancing that traditionally the right side of the court has been skeptical of. There are a lot of areas of the law where you get to the point of applying the test and interior in the theory you are supposed to apply the test but know the theory one way or another. If you can get to strict scrutiny, you are supposed to win and the government is supposed to lose. In the same way, if you are bringing a Commerce Clause challenge and you get to balancing, you have lost. My sense is they may try to work really hard to put this in the extraterritorial box even though it doesnt fit their perfectly as opposed to really reviving pike balancing because if they did the latter, it would be a very Big Development but a very surprising development. Maybe they will side with california but compared to most cases, the prospect for balkanization is more obvious than in cases where its kind of obscured. I think jeffs point about what is a court producer to do is a very fair one park producer to do is a very fair one. Host could you talk about the 303 creative case . Paul sure speaking of cases where it is applied but not fatal, thats what the 10th circuit did in the 303 creative case. This case more oddly is a followon to the masterpiece case from a couple of terms ago and it raises one of these very interesting questions that is almost a collision of two doctrines in constitutional or at least touched ray law. One is a nondiscrimination and civil clause to Sexual Orientation and samesex marriage. That led the court to find constitutional protection for samesex marriage. One of the central doctrines or legacies with Justice Kennedy on the court, a number of cases culminating in that case. He provided protection for Sexual Orientation. On the other side is a strong First Amendment doctrine. Sometimes more in the free exercise principles but in this case, more exclusively in freespeech principles that generally speaking, if you are engaged in expressive activity, you dont have to engage in expressive activity you disagree with. The right to speak includes the right not to speak and those two doctrines are on something of a collision course. You have somebody who has a Company Involved in web design. They have a religious belief and First Amendment freespeech belief that leads them to think they are happy to provide these kinds of services for traditional weddings, weddings that quote viable quote bible verses and the like, but are not willing to provide services for a samesex service. That is something they believe would be contrary to colorado law as interpreted by the Colorado Civil Rights Commission , has analogous see to the cake shop in colorado. They brought declaratory judgment action challenging that, saying they basically had a First Amendment right to essentially operate their Web Design Service in a way consistent with their beliefs and freespeech beliefs. They cases a little different from Masterpiece Cake shop because you dont have an actual enforcement decision. Theres a sense that this case is being more affirmatively set up to be the followon to Masterpiece Cake shop. I dont know if that will concern any of the justices. One of the things it will do is not give the court the out in the Masterpiece Cake shop where they were able to point to statements made in the proceedings before the Colorado Commission and use them as a way to decide the case without reaching the broader question. I do think this case will cause the court to confront and wrestle with this conflict between these two doctrines and this case is keyed up to involve only a freespeech client. But in the background is going to be the idea of how do free exercise principles apply in this context and what happens when free exercise comes into contact with this principle . That is an issue to court has danced around a couple of times. Its a very important issue and it will be a case where its important to watch not only what the Court Decides in this one case but what they say more generally because i think this case will provide a lot more clarity than the Masterpiece Cake shop case did. Jeffrey in another sense, masterpiece is about a acre and there are a lot of folks on the nonbaker side. Its not really speech, may be its a little artistic, but this is free speech and now its a website with personalized messages and there is no way as paul says to get out of confronting the question this time around. With all the religious liberty concerns the backdrop, its hard to see how you can get away from confronting the First Amendment case. Host can you tell us about another pair of cases, the harvard and unc cases . Jeffrey these are cases you probably know about. Paul was involved in a pair of cases back in the day where Justice Oconnor said the use of race in admissions and Higher Education, one hopes they are not quite at 25 years but you get a sense it may be coming up a few years early. One is harvard and one is unc. Unc is public, governed by the equal protection clause. Title vi forbids discrimination on the basis of race. The question is what did the equal protection clause in title vi mean . There are two cases. The first argument is you cannot use race considering admissions in Higher Education at all. The second is, even if you can, the way harvard and unc are using it does not comply with strict scrutiny. I dont have a lot to add to the briefs. The mountains that have been written about the history and meaning of the 14th amendment, you can look at the plessis dissent, you can look at round, the post the postreconstruction statue and form your own views about what the 14th amendment is. In some cases, if you have a good argument on the second question, it may mean they will do the narrow thing and not the broad thing. This case is a little different, which is to say if the court thinks that argument what harvard and unc is doing is not permissible or not what they intended, it might confirm the view of some that they ought to say you ought to be using race in the process at all. Notwithstanding what theyve said, the schools are doing things they find troublesome. I will focus on harvard for a second because thats the case that has gathered the most attention and is the focus of the briefs and all the terms are drawn from the briefs themselves and lower court opinion. The challengers, just so you understand the argument, take it in three ways. The first thing they say is harvards recently balancing its class. If you 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 one or two outlier years where it might go up or down by one point. But the pie chart would look remarkably consistent over the decades. Challengers say that must mean you are using race to try to balance your class. Second, they say the way harvard is doing that is affecting whats called the personal rating. Anyone who applies to harvard, those folks who may have gotten in and those of us who didnt, we have all scored. You get a bunch of scores and they are on academics and extracurriculars and those are pretty objective. But you also get a personal rating and thats meant to assess things like character and leadership, so it is pretty subjective. No one disputes Asian Americans receive a lower personal rating as a group then other racial groups who apply. Even the District Court who it fairly favorable to harvard agreed there is a statistically significant negative correlation between ratings and asian applications. Thats because they would say harvard is using that rating to affect the people who come into the class. Harvard says we are not bias that way. It isnt us, it has to be someone else in the process. The third thing they are saying is they are ignoring the race alternative. The reason they need to do this is they admit they have preferences for the children of donors, faculty and staff, legacy, folks who went to harvard in the past and recruited athletes. The vast majority of challengers say the percentage of class admitted to those classes, those are white and thats why it has the personal rating. The challengers say thats not true. What im interested to see is how much time is spent on the 14th amendment question and how much time is spent on what the schools actually do . I think some of the conservative justices could have some difficult questions about what the schools are doing with race and i dont think those would be questions suggesting negative scrutiny ruling at the end of the day. I think they would be questions designed to show the schools are not going to use race in any of the holistic ways the court has set r. O. K. Has set our are ok. Paul i think the thing that makes this case potentially difficult for the court is a little bit the question of what happens if they say what harvard and North Carolina are doing is unconstitutional, what happens next . I think theres going to be the sense universities are not going to just overnight say forget about it. We are going to grab justice harlans dissent from plessy, we will take all considerations of that stuff out and not worry about the composition of our class. I dont think thats going to happen. I dont think the justices expect thats going to happen. May be another way of getting at jeffs point, which are these questions about what they are actually doing given they are saying they are complying with router and grants and the thrust of which is to make things less numerical and more holistic. The trouble for the court is going to be if they rule against harvard and North Carolina, the impulse is for the school to not stop entirely what they are doing but to get more holistic and more fuzzy about how this whole process works and thats going to bother some of the justices in the back of their mind from the standpoint of they are not going to hunt to put a clarion ruling out there thats going to be overruled in practice and, on the other hand, the fact that this may difficult may be difficult to enforce, the waxmans of the world are going to want to use that to portray the process here of what is at issue in University Admissions as being quite different from a lot of the other contexts where race is verboten. Its sort of discrete, do you get to vote or not . Are you eligible for a particular kind of job . You were alluding to at the point where the court was wrestling with a masterpiece bacon case, the question presented is what is baking . Is it speech or not speech . You cant discriminate on Sexual Orientation if you are Dunkin Donuts and pumping out doughnuts and they all look the same but if you are a cake artist, then may be issues are different . I think lurking in the background is going to be the question of what is the admissions process . I think the universities are going to present this as something that is not strictly about merit and is about their autonomy to put together a class and i think some of the justices are going to be skeptical about that but thats going to be another piece of this that is worth watching. Host the other aspect of these cases is they were originally consolidated but they have since been unconsolidated. What should we make of that . Jeffrey i dont know. I expect its because Justice Jackson made sure she would recuse from the harvard case because of her involvement on one of the boards of harvard. So i suspect the court decoupled them so she could participate in the consideration of the unc case. Host if we could talk about a pair of cases you are involved with the actin versus fcc and ftc versus kaufman case. Paul thank you for mentioning them. I will introduce the topic by going all the way back to the beginning of the panel and talking about that first case where the question was did the sackett family essentially have two wait through the epa process before they could bring their challenge or could they say at the begin of the process, wait a second, this is crazy. Our property is not in the jurisdiction of the federal authorities. There are analogous questions that arise all the time in the context of administrative agencies, particularly when the challenger thinks there is something structurally problematic about the agency. That could be everything from your whole agency is unconstitutional and humphreys executor should be overruled or it could be something more modest like the first thing thats going to happen to us is when we walk into this agency, we are going to have a hearing before an Administrative Law judge who is not removable by the ftc or president but is removable for cause by the merit systems protection board, which in turn is removable for cause and that violates the separation of powers. You can imagine lots of other arguments but they are not arguments in the context of the federal trade commission and you are thinking about a proposed merger. Its not an argument that we should get to merge and you are wrong, its a more structural challenge that goes to the authority of the agency. In the question is whether those structural challenges to the agencies can be brought in District Court before you get sucked into the Agency Process or whether those are challenges you cant bring until you have endured the whole Agency Process you are alleging is unconstitutional. Maybe from the way i pitched that question, you can understand im representing the challenger here whom the ftc case thinks the Agency Procedures and structures are unconstitutional and we think we should be able to bring that challenge and prevent the constitutional injury before the constitutional injury happens by going through the process. Thats the nature of the issue before the court. Analogous issue in the cochran case about going before the fec. You have other challenges but what i think is a strong challenge on the merit to the constitutionality of the removal process for the Administrative Law judges before both agencies. On the one hand, this can seem boring and procedural, but on another hand, if you are a lover of the separation of powers, as i am, it is a sleeper set of cases and are more important than meets the eye. Right now, the court has had a problem with the separation of powers cases which is it vindicated the separation of powers but its like the litigant in the case gets whats behind door number two and get sent home what they consolation prize and dont get relief in the case. This happened in the Free Enterprise case where there is a challenge to the removal in the fec process. No meaningful relief happened where there was a successful challenge to the alj appointments in those contacts and no meaningful relief. And it happened in the celia law case where you had constitutional separation of powers vindicated but did not have concrete relief for the party. If the challenge isnt brought afterwards, not only is the injury already revisited, but it is hard to remedy the violation at that point whereas if you can bring me challenge at the outset, it provides a mechanism to get front and center earlier and you can get a remedy that prevents you from having to endure an administrative process that is unconstitutional. It seems like if the court sides with axon and cochran, its going to makes it make it easier to bring separation of power challenges to agencies. I think thats plus. I dont think theres a lot to be said for allowing agencies that are unconstitutionally structured to operate that way for years while somebody waits to bring the challenge. I think the Administrative Law judge illustrates the problem. Theres no question the removal process for an alj is the kind of double for cause removal process condemned in the Free Enterprise fund case and the only argument that you could do that to aljs would be they are not principal officers, but the Supreme Court basically rejected that idea in lucia. It seems to me the constitutional writing has been on the wall on this issue but nobody has been able to go into court and the administration, perhaps not surprisingly, just business as usual, even though they have to know in their heart of hearts that these aljs are constitutionally problematic. I think this case may be more important than meets the eye and sets the stage for their being additional robust separation of powers. Jeffrey i just hope nobody from the government is watching because they now know your intro. Paul they could read our briefs. Its pretty much all there. Host we are running short on time but i wanted to ask about two issues that are in the news come on twitter, on commentators mind a lot these days. The first is on the Supreme Court emergency motions docket. Its ominously been called the shadow docket. The court has received some criticism for resolving cases through the emergency motions process. I was curious to hear your thoughts if you think the justices will change how they handle those emergency motions, moving to the merit docket, maybe granting cert before judgment in certain cases. What are your thoughts . Jeffrey they already are. The emergency docket exploded in the last edit initiation and the tail end of president obamas second term with nationwide injunction. That was half of the emergency docket but it was not a huge part of the spike. There now seems to be recognition on both wings of the court that nationwide injunctions by single judge our problem. Even Justice Kagan in the last few weeks came out and criticized it. They could have gone two different ways. They could have aimed at the nationwide injunction, the expansion of state standings, some of the things making that docket be so much larger than it used to be. They havent done that yet. But they seem to be doing is accepting that and taking cases from the emergency docket and moving them over to the merit docket and even on the emergency docket, they are writing more to explain what they are doing. There isnt any sign yet they want to return to the old ways as opposed to adjust to the new normal. Paul im glad you started the question by talking about the emergency docket and only secondarily got to the shadow docket. I think its important in thinking about how the court is dealing with this to normalize the idea of an emergency docket. You cannot run an applet Court Without a docket that operates differently from your fullblown merits consideration. In a world where District Courts get to issue preliminary injunctions, temporary restraining orders and District Courts are flawed institutions and occasionally get it wrong, you need a way to deal with those cases, fixes problems promptly without going through the whole process of merits briefing and argument. That is all in emergency docket is. Back in the day when we were clerking on the court, the real use of the emergency docket was to protect the rights of capital defendants and nobody seemed to think there is anything sinister about that. If there is any problem, it isnt having an emergency docket. You can havent reasonable discussion about whether the court is using it too often or too frequently or without explaining what it is doing and i think jeff is right. The court is receptive to some of the criticism it was using the emergency docket too often or too frequently, so they made a few adjustments here and there at the margins but i think the emergency docket is here to stay. Although the court hasnt addressed them yet, it probably is not too far off the court addresses some of the root causes for why the emergency docket was being used more often like nationwide injunctions, like permissive state standings, and i think if the court does that, that will do more in the long run to establishing the emergency docket as being a normal part of an Appellate Court than the more cosmetic changes being made in the short run. Host i wanted to ask your thoughts on the dobbs leak and leak investigation. We havent heard a lot about it since the chief justice announced the investigation. We recently heard from several of the justices that there is an investigation and a report will likely be issued soon. Do you think we will find out who the leaker is or what types of reforms are in the institute . Paul i dont know whether we are going to ever find out who was the leaker. The fact we dont know yet is probably some indication we will never know. I dont know for sure. In terms of what happens going forward, part of the reason those of us who clerked on the court back in the day were awestruck by the leak and horrified by the leak was that it is so antithetical to the norms of the place. What makes a challenge for the court is you could figure out lots of ways to reduce the chances of a leak in the future but they are all going to hurt the courts functioning, the spirit of collegiality. Justices could hang onto opinion drafts longer and only share them initially with justices they think are likely to join and only later in the process share them with likely dissenters. You could have opinions, draft opinions, kept in a skiff. For those of you whove worked in the federal government, it is no fun. There are things you can do, but none of them are productive in the long run. My own sense would be this is a challenge for the chief justice to bring in the court into a term and getting this leak in the Rearview Mirror to a degree. I would hope there isnt an overreaction. There is much about the dobbs case that was sui generis. You could look at that and say that was unbelievable but you can also look at all the other controversial cases the court handled for decades where there wasnt a leak and thats probably the more amazing phenomenon. It would be a mistake to lose sight of the fact that essentially every other case, including bush v gore the court has not had this kind of thing and that has been to the benefit of the court and a strong signal that as awful as the leak was, its not a sign the Institution Needs some kind of fundamental reform to prevent it from happening again. Jeffrey i have the same broad take as paul and all i will say is i wouldnt be too pessimistic on this. There has never been any breach like this but there have been small breaches in the past. Clerks who wrote books and disclose various things inside the court that were awful and the court has always managed to return itself to the norm those of us who have been around the place really love about it which is folks didnt do these sorts of things. Dobbs was a terrible example but there were dribs and drabs that came out over the years about other cases, usually toward the end of the term. Tell all articles by various reporters and leaks on a case here or there, rumors around town. But it seemed like the court was not quite the black box in recent years that it had been. This obviously blue past that and crossed the rubicon, but one hopes its an opportunity for all of them to return to what as paul says has been by and large a shared norm across chambers and clerks for a very long time. I do think it will mean unfortunate changes in terms of working outside the building and Security Systems and logging protocols. But once that begins to fade in the Rearview Mirror, my hope is it returns to the this has been a fascinating conversation. Unfortunately, we are out of time. We will be anxiously watching as the court begins a new term this week. Please join me in thanking jeff and paul for being here today. We really appreciate it. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] [captions Copyright National cable satellite corp. 2022]