Chief Justice Roberts: The Supreme Court’s New Center?

So great, I think we’re going
to go ahead and get started. So thank you all so much for
coming to our panel discussion today on the current
Supreme Court. I’m Marin Levy, and
on behalf of myself, and professor Ernie Young,
my co-director of Duke Law School’s Program
and Public Law, we are delighted to
welcome you here today. So as you may have heard,
a new justice recently joined the Supreme Court. Now of course there is
always a heightened level of interest in the court
when one justice retires and another takes
his or her place. There are important
questions that arise, which legal academics
and commentators then try to address. So namely, how will replacing
one justice for another affect the court? And in particular,
how will this shift affect the dynamic of the
nine Supreme Court justices? How will it affect the dynamic
of the justices and the lawyers who appear before them? Will we see certain
kinds of arguments being advanced more so than before? And perhaps most
importantly, how will the addition of the
new justice and the loss of the retired justice
affect the development of particular areas of law? So again, by way of context,
these questions always arise when the membership
of the court changes, including most recently, back
in 2017, when Justice Neil Gorsuch joined the court. But I think it’s fair
to say that there has in particular
interest in our current Supreme Court, largely
because of the justice who stepped down. So again, I expect to
all of you know this. Justice Anthony Kennedy
retired this summer after 30 years on
the Supreme Court. And for a significant
part of his tenure he occupied what we might think
of as the center of that court. And certainly, once
Justice Sandra Day O’Connor left the bench, back in
2006, Justice Kennedy was considered
the swing justice. That is, the pivotal fifth vote
needed to create a majority. So now with Justice Kennedy
having stepped down, and Justice Brett Kavanaugh
occupying his former seat, the questions that we
mentioned at the outset are all still very much alive. How do we expect the
court to change now that we have a new justice? And then, additionally, how do
we expect the court to change, given that Chief Justice
John Roberts now seems to occupy the court’s center. So to provide insight
and even some answers to these important questions,
we are joined today by a fantastic panel of
distinguished Duke Law School professors, all former
Supreme Court clerks. So from left to right, we
are joined by Professor Curt Bradley, who teaches and
writes about foreign relations law, federal courts,
and international law. Next, we have Professor Stephen
Sachs, who teaches and writes in civil procedure,
constitutional law, and conflicts of law. Next to him, we have
Professor Ernie Young, who writes in constitutional
law, federal courts, and foreign relations law. And finally, we have Professor
and Senior Associate Dean Maggie Lemos, who
teaches and writes about constitutional law, legal
institutions, legislation, and civil procedure. So our panel members will
each offer their own thoughts on how the court might shift
given its new composition. I will then have a question
or two for the panel, before opening it up to
questions from all of you. Professor Bradley,
will you start us off? Thank you, Marin, and
thanks to everyone for coming to our discussion. Before giving a few
of my observations about our current
Supreme Court, I thought I might give
a couple of thoughts about perspective, now that
we’re a little bit past what were obviously very fraught
hearings on the Kavanaugh appointment. So a couple of
perspective thoughts. One is, it has
been about 30 years since I graduated
from law school. Time really does
fly, it seems like. And it was right
after Kennedy had been appointed to the Supreme Court. And I so I looked to see
how many appointments there had been since I got
out of law school. And there have
been 10, including Gorsuch and Kavanaugh. And exactly five turned
out to be liberal. And predicting
Gorsuch and Kavanaugh in the conservative
column, exactly five will have turned out
to be conservative. So it’s a suggestion, at
least in the long term, these things may
tend to balance out, although it may not seem like
that at any particular time. And the second kind of
point of perspective, as I was getting ready
for this panel, and I was reading an article
by Professor Cass Sunstein. And he expressed his
concern that, quote, “The Supreme Court
has finally taken a sharply conservative turn.” And he predicts various
cutbacks in progressive rights, the overturning of
Roe against Wade, and a likely disallowance
of affirmative action, and many other changes. And that article was
published in 1990. So again, these debates
are not entirely new. And the concerns
are not entirely new that you’ll hear about. Having said all of that. My own prediction is just to
say the obvious point first, is we will have a more
conservative Supreme Court, at least in
the next few years, with the replacement of
Kennedy with Kavanaugh. And it turns out, I
think, to be interestingly difficult to define
exactly what we mean when we say conservative
and liberal in this context. I think we have
intuitions about it. But it turns out to be complex. But I guess what I mean here
is, one can expect a court that is less sympathetic than
it had been to rights favored by political
liberals, sexual orientation rights, abortion rights, and
the like, and more sympathetic, on average, to rights favored
by political conservatives, gun rights, property
rights, and the like. Probably more sympathetic
overall to federalism and states’ rights as
well, although I think one can at least argue that
conservative justices are not entirely consistent about
that sort of a commitment. We can talk about that as well. We know a lot about the judicial
ideology of both Kavanaugh, who’s just come onto
the court, and Roberts, who is likely to be kind
of the median justice now. Roberts has been on
the court quite a while and was on the DC
circuit before. And Kavanaugh has been on
the DC circuit, I think, for about a dozen years. And so we have lots
of opinions to know their views in the
context of those opinions. And it’s not like
some prior situations. When I clerked at
the Supreme Court, Justice Souter joined
the court that year. And he really didn’t have a lot
of federal court experience. And I think surprised
a lot of people with how liberal he became. But I think we can expect
fewer surprises out of these particular
justices, given that we know a lot about their views. But having said that, my
main point to get us started is, I think predicting what
the court’s likely to do runs into a number of complications
that we should at least be thinking about. One is, Chief Justice
Roberts has already as Chief Justice, I think, shown
an internalization of his role as the Chief Justice,
in various ways. Including just last
week, going back against President
Trump’s tweets, concerns about judicial
independence and legitimacy. Cases like the Affordable
Care Act cases, where he ends up surprising
people and joining the liberal justices. One can imagine that he might
internalize an additional role as kind of a median or
center justice as well. And that might affect
either how he decides the outcome of
cases, or at least the way in which he pushes
how they should be written. And I think one can look back
at median justices, O’Connor, Kennedy, and see some ways
in which they probably internalized that
particular role as well. So, how might that take shape? I could imagine Roberts pushing
even more than he usually does for adherence to precedent,
constitutional avoidance, avoiding constitutional
questions when possible, and writing decisions in
kind of a minimalist fashion, rather than reaching as far
as they could possibly go. And I think he’s already shown
inclinations in that direction. We might see more of it. Even for issues, though, on
which Kavanaugh would clearly almost certainly be more
conservative than Kennedy was, we have to keep in mind
that Kennedy was not exactly an across the board
liberal justice by any measure. And there’ll be lots of issues
in which Kavanaugh’s views, at least in terms
of the outcome, will probably be
similar to Kennedy’s. It will make a difference
only where they likely would have diverged. And probably only in close cases
where they would have diverged. Maybe a 5-4 case, where
we could look back and see Kennedy was in the majority
and Roberts was in dissent, we might find that
Roberts and Kavanaugh might make a new majority. But that won’t be routine. I looked and the figures
are, for the last, well, more than 15 years,
the number of 5-4 decisions by the court is under 20%. We just forget about
that, because we often tend to focus on the
closely divided ones. And in many of those,
it won’t be the case that Kennedy and Roberts
were dramatically at odds, for example. And so the number of
possibilities may be low. Another important
factor, of course, and I mentioned it
already, is stare decisis, respect for precedent. So even in cases
where we can see Kennedy was in the majority,
Roberts was in dissent, in a 5-4 case, it is
not necessarily true that a new majority will
just overturn the precedent. So just to take an example, the
Obergefell decision was 5 to 4, the gay rights, gay
marriage decision, with Kennedy in the majority,
Roberts in the dissent. I could imagine Kavanaugh,
if he had been on the court at the time, might
have joined Roberts. But I could also
imagine the court not overturning Obergefell,
even if in some sense they have the votes. It’s a reasonably
well-accepted decision. There’s been a tremendous amount
of reliance on the decision. And in other contexts, we don’t
see changes in composition on the court
automatically overruling all the precedents they
wouldn’t have voted for in the first instance. A couple of final
thoughts, really tying into something I said
at the beginning. We do need to be
wary of the labels, conservative and liberal. I think they can sometimes
obscure really quite important differences among
justices within a coalition. So just to take one
area that I tend to focus on in my
courses, which is a deference to executive
authority and executive power, sometimes that’s
described as more of a conservative position. But here’s one
difference you might see among the justices,
which is some justices who are very deferential to
the president, are that way only if there’s not a
statute directly on point. That is, in the absence
of Congress intervening, they tend to defer
to the president. But maybe much less deferential
if Congress regulates. And Kavanaugh on
the DC circuit has shown some tendencies
in that direction, to defer to Congress
when that happens. Maybe in some instances, more
than even Kennedy would have. And I can give examples,
maybe, when we have questions. And then finally, just another
possible wild card here is Justice Gorsuch. I think fairly described
as a conservative justice to replace Scalia. But is also kind of
libertarian, anti-regulatory. And sometimes that
leads in what we would call liberal directions. He did vote with
the liberal justices in a couple of close
cases last term, including in an
immigration case, where he had concerns
about the vagueness of the relevant statute. And justices who are concerned
about undue delegations of authority, for
example, similarly sometimes will
come out as what we would regard as a
liberal direction as a result of that preference. So my bottom line
is, yes, I think it’s fair to say we will see
a more conservative court for the next few years. But I think what that means in
practicalities is complicated and it’s probably
difficult to predict. Thanks. Thank you. Professor Sachs– Thank you. I think, again, to echo
Professor Bradley’s comments, it will be a more
conservative court. But the things I’d
like to talk about are somewhat follow-on
consequences. So for instance, it
is a matter of math now that if you want to win
your case at the Supreme Court, you need a vote from either
the chief, or Justice Thomas, or Justice Alito, or Justice
Gorsuch, or Justice Kavanaugh. You have to have
one of those five if you’re going
to win your case. And that’s going to lead to a
number of changes in the way that cases are lawyered. And that itself will have
follow-on consequences for the law. So you can imagine
litigants who go in thinking that this will be an
uphill battle for them, needing to make a particular
originalist argument let’s say, to attract the attention
of Justice Thomas, or Justice Gorsuch, or any of
the other justices, perhaps Justice Kavanaugh, as well,
that they would not necessarily have made, it were not the five
votes, that that group of five were not a group that they
needed one or their votes from. You can imagine the
textualist arguments will become more common. Recently, in an
immigration case, attorney Cecilia Wong
made a very effective, though it may not in
the end have persuaded, argument about the adverbial
phrase in the statute, that Justice Gorsuch
appreciated a great deal, because it took the text
very seriously in a manner that he is known to do. And so you can
imagine those kinds of arguments becoming
more popular as a result of the shift in the
court’s composition. I think if you do the Google
trends study five years from now for the number
of references to dignity in Supreme Court
briefs, you’re going to see a nosedive that will
be roughly around June 30, of 2018. And the reason for
that is not that it was some sort of magic spell
to get the attention of Justice Kennedy, but that the lawyers
thought that it might. So the lawyers thought, well,
we know Justice Kennedy writes about dignity, so let’s
put a lot of references to dignity in the brief,
and maybe he’ll like us. Those kinds of
considerations really do affect the way that
cases are lawyered. And they also affect the way
that lower court opinions are written. The lower court cares not only,
if it seeks to avoid reversal, cares not only about the
content of the legal rule, but also the kinds of arguments
it’s making for a legal rule. It’s much easier to reverse,
oh, that crazy lower court decision if the kinds of
arguments advanced in its favor are arguments that no longer
carry quite so much water with the five justice majority. You can imagine litigants
seeking a minimalist approach to attract the attention
of the Chief Justice, or a more functional
approach for Justice Alito. And these are vast
oversimplifications. I think it would be
wrong to describe the chief as a minimalist,
quote, unquote, or Justice Alito as a
functionalist, end of story. But these are sort of
tendencies and aspects of tone in different opinions that
lawyers will pick up on and will seek. And that has effects not
only for how you guys learn to write briefs, but
also for how lower court judges structure their opinions,
and how the law more generally is carried out. A second change that I think
Professor Bradley also noted is that there are
differences within this conservative majority. I don’t think it’s necessarily
the case that the Chief Justice will become the new
swing justice, sort of stepping into Justice Kennedy’s shoes. In part, because it’s not
clear that that’s a role that he necessarily seeks. But also because it’s
not clear that there will be only a single swing justice. As we’ve seen with Justice
Thomas and Justice Gorsuch, often you have strange
lineups, even in 5-4 cases. And it is entirely
possible that there will be a number of swing
justices on different axes for different reasons, than the
standard conservative-liberal split that we saw, with
Justice Kennedy in the middle. There are also reasons that
go to internal court politics. So it’s sometimes easier to
write a 6-3 narrow opinion than it is to be in
the middle of a 4-1-4. And to have an opinion that
no one else agrees with. And to be deciding on grounds
that no one else quite takes. So it might well
be that you will see more 5-4 opinions and fewer
6-3 opinions of various kinds, because of the lineup
of the new majority. Another way in which people in
the new majority might differ is not in the sense
of what their first, best preference is,
but whether they really want to clean up old
opinions, whether cleaning up old doctrine is seen as
a positive advantage, or whether it’s better
to let sleeping dogs lie. And this is something on
which different justices take different views. I think it’s safe to say that
Justice Thomas puts a greater priority on avoiding repeating
old errors, as he might see it, than some of the
other justices do. Some of the other
justices are more willing to say, if we
don’t have to extend a body of incorrect
precedent, even if we think it was incorrect,
we can just let it lie. I think there are definitely
a number of opinions, like Obergefell, but also
much less high profile cases. So whether an independent
redistricting commission qualifies as the legislature
of the state for purposes of the elections clause. Whether recess appointments
are constitutional and in which circumstances. These are things
on which there were 5-4 decisions, in which the
new court would probably come out differently
than the old court had. But it’s not at all clear
that they are immediately going to dredge up
all of the decisions and vote the other way. But they might be forced to. So it could well be that a
case comes up that can’t easily be distinguished. If you look at the
Chief Justice’s opinion, his concurrence in the
Citizens United case, one of the approaches of
the defenders of the statute was to try to identify a
number of intermediate grounds on which one could preserve
the prior precedent. But the Chief Justice’s
concurrence essentially said, those grounds don’t
convince any of you, so why should they
be convincing to me. And so if you can’t find a
ground that actually suffices to avoid reconsideration
of an old precedent, the court might well
be forced to it. So even if they’re not looking
to dredge up old cases, even if they’re not looking
to change what the existing body of precedent is, they might
find themselves in a position where they have
very little choice. On that score, how much can we
learn from Justice Kennedy– sorry, Justice Kavanaugh’s
time on an appellate court? I think actually a
relatively large amount. When you’re on an
appellate court, you’re constrained by Supreme
Court precedent, as well as the precedent of your own court. You can’t do everything. But I think it’s fair to say
that Justice Kavanaugh, when he was Judge Kavanaugh,
seemed to swing for the fences in
a number of cases, especially in cases involving
separation of powers questions. There were cases like
the Free Enterprise Fund case, cases like the appointment
of administrative law judges, where I think Judge
Kavanaugh, as a judge, was willing to write
relatively broad opinions on formalist grounds that other
judges might not have been or might not have seen as
necessary to make the point. So if that’s a correct
analysis, I think as a justice, it’s quite plausible that
now Justice Kavanaugh would seek to write relatively
broad opinions in areas where the question is squarely
presented and squarely before the court. And in general, I
think the stock price of formalism and
separation of powers has probably gone
up since last year. Thank you, Professor Sachs. Professor Young– So I don’t see why legal
academics are so down on President Trump, because
every week he gives us something good to talk about. Last week, that President got
enjoined by a federal court again. This time with respect to
restrictions on asylum requests on the Mexican border. The president responded by
tweeting that the district judge was an Obama judge and
criticizing the Ninth Circuit, which has affirmed injunctions
against a lot of Trump programs, as a big thorn
in our side and a disgrace. Somewhat surprisingly, Chief
Justice Roberts actually responded to the president,
telling an AP reporter that “We do not have Obama
judges, or Trump judges, Bush judges, or Clinton judges. What we have is an
extraordinary group of dedicated judges
doing their level best to do equal right to those
appearing before them.” Then, finally, just to make
the occasion more festive, the Democratic Senate
leader, Charles Schumer, weighed in to say
that he was thankful that Roberts had stood
up to President Trump and for an
independent judiciary. But he said that only after
ripping the Chief Justice in the same tweet, no less,
for his partisan decisions, which seemed highly political
on Citizens United, Janus, and Shelby. So I guess you could
consider Senator Schumer as taking an intermediate
position between the president and the chief. There are no Obama judges,
but there are definitely Trump and Bush judges. And I raise this
episode because I think it’s fair to paraphrase
the question addressed by this panel as,
what difference will it make to have a
bunch of Trump judges on the Supreme Court? And someone inclined to
take the Roberts view might be inclined to resist the
very notion of that question, there are no Trump judges. I take it the chief
would likewise say there are no Republican
judges, or Democrat judges, and no conservative
judges, or liberal judges. There are only judges doing
their jobs with dedication and professionalism. I haven’t done a survey,
but my impression is that most everybody
in the legal academy and the legal profession
had the same reaction I did to this whole
episode, which is basically, yeah, Chief. You might say it’s his
finest moment since he opened his opinion in Stern v. Marshall
with an extended paraphrase of Bleak House. And I think it
gives some insight into the role he
is planning to play on the newly constituted
Supreme Court, which is the guardian and
advocate of the court’s institutional legitimacy. As I said, yeah, Chief. But here’s the thing, I don’t
think that any body actually agrees with the chief. Senator Schumer
certainly doesn’t. He attacked Roberts
in the very same tweet as being a partisan judge. And he led the assault
on Brett Kavanaugh because he thought Kavanaugh
would be a Trump judge. Most journalists
writing about the court think it’s important to note
the partisan affiliations of the justices and expect
that those affiliations drive decisions much of the time. So do many political scientists
writing about judging. And all legal academics
who are influenced by the legal, realist, and
critical traditions, which is most of us. We wouldn’t be having
this panel if we didn’t think it was
significant that the court now has a solid majority made up
of conservative Republican appointees. If you’re here, chances
are it’s because you agree with President Trump,
that the ideological bent of a justice matters a
great deal in driving the results that the
justice is likely to reach. So we might take our
instinctive agreement with the chief as
more of a reflection on what is appropriate to say
publicly than of disagreement with Trump’s basic
view of judging. And of course, sticking to
what’s appropriate to say publicly isn’t this
president’s strong suit. Those norms may be
eroding more generally. Multiple prominent Democrats,
including senators Feinstein and Blumenthal, have explicitly
questioned the Supreme Court’s legitimacy in the wake of
the Kavanaugh appointment. There have been open
calls for court packing. But I think it’s
fair to question why we would have a norm
that requires us to pretend that judges aren’t
political, if, in fact, we’re convinced that they are. And I think the
main reason to be careful about what we say is
that, when we say that judging is political, important
nuances are likely to get lost. And the key nuance
for me is that simply because many legal principles
have political content, and correlate strongly to
partisan affiliation, that doesn’t mean they
aren’t legal in nature, or the deciding cases
under them isn’t decision according to law. So the scope of national
power, or the extent of unenumerated rights, or
the extent of executive power, or the meaning of
constitutional equality, these are all highly
political issues. But they’re also legal
questions about the meaning of legal texts and precedents. So law and politics
are not antonyms, and we shouldn’t
treat them as such. These are also
questions about which reasonable lawyers can differ. Just as reasonable
people disagree about the right moral
or political answer, reasonable lawyers differ
about the legal answer. And from a legal answer,
a legal perspective, how you answer these questions
is often interconnected. That is, people who believe
in limited national power or limited
presidential power are likely to also be
somewhat skeptical about unenumerated rights. And these have to
do with connections between the questions that
are either methodological or substantive. So as a result, lawyers,
judges, academics, we tend to have at least
a somewhat coherent legal worldview on
constitutional questions, especially. And those legal worldviews
correlate pretty strongly to partisan political
ideology, not perfectly, but pretty strongly. So Democratic judges are
more likely to believe in expansive national power and
expansive unenumerated rights than Republican appointees. That doesn’t mean
that partisan politics is driving those beliefs. It may, in some
cases, be the reverse. It does mean that
partisan affiliation is a pretty good
predictor of what judges are likely
to do in closely contested constitutional cases. So there’s good news
and there’s bad news. The bad news is, there are
Trump judges and Obama judges. It’s meaningful to talk about
judges’ partisan affiliations as a good clue toward
their legal worldviews. The good news is that I do
believe judges make decisions based on the law, even if
partisan affiliation helps us predict what
those decisions will be with reasonable accuracy. So even if we aren’t surprised
an Obama judge enjoined the president, and won’t be
surprised when the Trump-Bush Republican Supreme Court
overrules that Obama judge, the president is wrong to
say that the decision making process is a disgrace. So let me add one last
point that I think is something of a saving grace. And that is, a lot of
the legal principles identified with Trump judges are
methodological or structural. Trump judges tend to be
originalists methodologically. They tend to be very interested
in structural principles, like federalism and
separation of powers. The stock is going up. These interests
correlate to party. But the principles are
themselves legal principles. And they will not
infrequently push in unpredictable ways
in individual cases if they are applied neutrally. So originalism
can press in favor of certain liberal positions,
an expansive establishment clause, for instance, or
limitations on presidential war powers. And federalism can shield
secessionist hotbeds of the resistance,
like California. So the court’s sports
gambling case for instance, Murphy v. NCAA, is likely to
shield both sanctuary cities and states trying to
legalize marijuana. That’s a result that Trump
judges are likely to apply. So I would expect this
court to remain consistent on such things,
regardless of the politics of individual cases. Thank you, Professor young. Professor Lemos– Hi, everyone. I don’t think I have a lot of
new concepts to add to this. But I want to throw
out two distinctions that I think might be
helpful for thinking through these issues. The first has to do
with terminology. And so in our
conversation so far, and in lots of conversations
about these kinds of things, we hear two different
terms that don’t always mean the same thing. One is median justice and
the other is swing justice. There is, as you would imagine,
a pretty large literature about these topics. And in that
literature, those terms typically mean importantly
different things. So the median justice
is just simply the justice who’s at
the center of the court. So if we’re able to
line up all the justices along some dimension,
and I’ll say more about that in a second,
the median justice is simply the one who’s
the fifth out of nine. And that could be
at the middle or it could be way over to one side
or another, it’s just median. Swing justice often is used
to mean something different, and more specific, and something
that doesn’t always exist. And so that is a justice who’s
between two roughly equal blocs of justices, and who
swings between them with some frequency. Some people say it’s got
to be even close to 50% in order to count
as a swing justice. So I think we can be quite
sure that Justice Roberts is the median justice
on the court now, if we’re looking across all
issue areas and aggregating. I’m pretty certain
that he’s not going to be a swing justice in
the way that Justice Kennedy was on some issues. It may be that the
current court just doesn’t have a swing justice. So then that gets us to
questions of measurement. Everything I’ve
said so far suggests that we can figure
out how to line up the justices along
some dimension. In other words,
we could construct what social scientists
would call a spatial model, to line them up. And most studies
of this sort that are looking at things like the
median justice or the swing justice use only one dimension. And so they’re assuming
that the justices’ votes can pretty well be
described, or explained, or predicted by one thing. And they assume that that
one thing is ideology. But that, of course,
begs the question of how we figure out what
the justices’ ideologies are. And for these purposes, we
can’t use the crude measure of Republican or Democrat,
based on party of the appointing president. Because as others
have discussed, that just gives us two choices. It doesn’t allow us to light up
nine people in different ways. And the whole thrust
of this conversation is that we think there might
be meaningful differences between these two Republicans,
Justice Kennedy and Justice Kavanaugh. And so instead,
what studies that are looking to line
justices up spatially do, is base that alignment
on their votes. And so they look at
who’s voting with whom in lots of different cases. And doing that
allows them to say, OK, we see Breyer and Kagan
pretty close to each other. And they are kind of in the
same neighborhood as Ginsburg, but they’re closer to
Kennedy than Ginsburg is. And so we can line
them up in that order. But that’s really
important to keep in mind that that’s all they’re doing. Because it doesn’t actually
tell us anything about what is behind those votes. It could be ideology. But it could be something else. And so, when we see a
pretty good correlation between the sort of crude party
of the appointing president measure and a lot of
the justices’ votes, we can be pretty sure that
ideology is playing some role. Although, that might
be, as Professor Young said, because there’s a great
deal of overlap between policy and law and the
kinds of questions that the Supreme
Court deals with. But we don’t know. And the studies that look at– that try to situate the
justices don’t purport to proport to prove what
it is that’s driving those alignments. They just refer to preferences. And so the idea is,
we can be pretty sure that justices are voting
the way they want to vote. But it leaves completely open
what kinds of preferences those might be. So take that back to
the median justice. We know that Justice
Kennedy was in the middle of the court on many issues. We don’t entirely know why. It could be that he was just a
pretty moderate conservative, so he was sort of center
of the road politically. But it could also be because
other considerations weighed heavily for him, at
least in some areas. So some folks think that Justice
Kennedy cared a great deal about public opinion, for
example, in some areas. And so that could just be
that other considerations are pushing him toward the
middle in those kinds of votes. The same is true for Roberts. And so as Professor
Bradley mentioned, there’s reason to think
that Justice Roberts’ role as Chief
Justice has already been affecting his votes. And that might be
drawing in considerations that weigh more heavily for
him than they would otherwise. And there may be reason to
think that his new-found role as median justice, at
least on some issues, might serve that same purpose. We just don’t know yet. And the last thing I want to
emphasize on this point echoes something that Professor
Sachs also noted. And that is, it’s
important to distinguish between who’s the
median generally, so if we’re aggregating all cases. So if we’re looking like who’s
the median over the course of a particular term. And that’s going to
be Justice Roberts. That was Justice Kennedy before. But if we break things up by
subject area, for example, and look at how
justices’ votes align in different kinds
of areas, it turns out everybody’s the
median some of the time. Kennedy was the median
on a lot of issues. And now we don’t
know who’s going to be the median on
all of those issues. But as others have
emphasized, we do see very different alignments
in different issue areas. And that complicates any
kind of discussion about who is the median. So that gets me to
this second distinction that I want to
draw just quickly. And that’s between
opinions and outcomes. Professor Bradley
mentioned this, but I think it’s really
important in thinking through how the court might
be different with Justice Kavanaugh as opposed
to Justice Kennedy. So on many issues
Justice Kennedy was a pretty reliable
conservative vote. In those areas, we are unlikely
to get different outcomes now than we would have
gotten before. But we may get really
different opinions. Because the majority
coalition is now made up of different people. And in particular,
Roberts, or whoever it is, the role of whoever
is the pivotal voter, or the median
voter on that issue, may be particularly important
in shaping the content of the majority opinion. Now, we, as lawyers,
know that in many cases what matters most is
not necessarily who wins or who loses, that’s
outcomes, but what the rule is that the court lays down. And lots of people
who have studied this think that the justice
who’s in the median on that particular case
holds the key to the rule. Because that justice can often
mount a pretty credible threat of either switching
sides or more likely just peeling off
from the majority coalition and depriving the court of
an opinion of the court. And so there, differences
between Kennedy and Roberts may matter to what our
law ends up looking like, which we care
about a great deal, even if that outcome
is the same as it would have been before when
Kennedy played that role. Great, thank you so much. And thank you all
for those insights. So I just want to start us off
with a question for the panel. So we’ve all touched here on
a number of important points, including how certain
methods of interpretation might now receive more
support among the justices, and how the lawyering before
the court might change. And I’m just wondering, are
there any particular areas of law that you
think might shift, given the new
composition of the court? I’ll talk about one
that probably won’t– well, I do think it will shift,
but not because of outcome, but because of opinions. And this is related to something
that Professor Sachs said. So you all probably know that
the longstanding precedent that says that courts should
defer to judgments of administrative agencies
has come under increasing attack in most recent years. Justice Gorsuch was a
vocal critic of Chevron on the Court of Appeals. And so his elevation
to the Supreme Court seemed to make it more likely
that the Supreme Court might make a move. And now all five members of the
likely conservative majority have at least expressed
pretty serious reservations about Chevron. And that includes Kennedy. So very shortly, before he
announced his retirement, Justice Kennedy
surprised many people by writing a
concurrence in which he said maybe it’s time
for us to reconsider this doctrine of deference. And so in that sense, his
replacement with Kavanaugh might not make that
big of a difference. They both seem to be
fairly anti-Chevron. But getting back to what
Professor Sachs said about swinging for
the fences, this is an issue where Kavanaugh
has been particularly vocal and seems to have
some deep commitments. It’s kind of one of his things. And it’s related to separation
of powers in general being sort of his thing. And so my prediction is
that exchanging Kavanaugh for Kennedy raises
the likelihood of the court doing something
exciting in that area. Who knows. Justice Alito is kind
of a wild card here. He’s expressed some
reservations about Chevron, but hasn’t been consistent
on it, ditto Roberts. And so it’s hard to know
exactly how it will play out. But this seems like an
issue that Kavanaugh wants to leave his mark on. I’ll throw out one
example from an area that I teach in
foreign relations law, which is a kind of general
national security law area. In particular, we had a
series of cases concerning the Guantanamo detention
facility in the post 9/11 war on terrorism. And a lot of people
were surprised the Supreme Court seemed
more interventionist than had traditionally
been true in prior, more traditional kinds of
conflicts, including overseas military
activities and the like. And one of the most noteworthy
decisions in the late 2000s was Boumediene
against Bush, when the Supreme Court in a 5-4
decision, written by Kennedy, decided that, in fact, the
non-US citizens being held at the Guantanamo
facility all had a right to access to the
federal courts to seek habeas corpus review. I think it’s possible that
was a shock to the Bush administration, which I think
had housed the detainees there specifically with the thought
that that would be outside of judicial scrutiny, since
it’s not on really, technically, US soil. Closely divided case. And we have reasons to
think that Kavanaugh, who was involved in very
similar decisions, including those decisions
on the DC circuit, probably would have joined
the dissenters if he had been on the court, and
might well, therefore, have changed the outcome. Like many examples,
though, it may not be one we’ll see an
exact replica of. That issue is decided,
that there’s habeas review. Those cases have all kind
of gone through the courts now, out of Guantanamo. Most of the detainees
are not there anymore. So that specific precedent
probably isn’t in jeopardy. But if we have other war on
terror, national security issues, about how much to
defer to the president, how much judicial review
there ought to be, I think it’s a
reasonable prediction that it’ll be lower than
what Kennedy probably would have been comfortable
in terms of judicial scrutiny. So that’s one thought. Great, thank you. Any other thoughts? This is somewhat smaller bore,
but there may now be five votes to get rid of the Lemon test. This is a test for
establishment clause violations. And when the government
is endorsing religion impermissibly under the
Establishment Clause, there have been five votes to
get rid of it for a long time, but nobody actually wanted
to pull the trigger. And I think Scalia referred
to it as the horror movie ghoul that kept crawling out
and being sent back again. But you know maybe this
court will actually do it. Other areas, I think, as I said
before, separation of powers, I think you’re going to see
a lot of Appointments Clause decisions under this court
that you might not have seen under the previous court. And also areas we’re
not really thinking of. I don’t think that anyone
necessarily thought– certainly upon the day that
George W Bush became president, no one thought, oh, this will
be an era that will be dedicated to national security issues. And things are going
to surprise us. And we will not
know what they are. So it’s a little hard to say. You can always come
in with a sense of how you want to change things. But you have no idea
what kinds of cases are going to be presented
to you when you get there. One follow-on to that point is,
that the issues that changes from the issues that the
president was considering when he makes the appointments. Presdients are usually
pretty good at predicting what the justices
they pick are going to do on the issue set
that is most salient to him at the time he decides. So when FDR picks Hugo Black,
Felix Frankfurter, William O Douglass, and Robert Jackson, he
puts them on the Supreme Court to uphold the New Deal. And they all reliably do that. They vote like clockwork. And in all those cases, he
was absolutely right about how they were going to vote. But then the issue set changes
long after FDR is gone. And now it’s questions
of individual rights, and equal protection, and
free speech, things like that. And they split. They go off in all kinds
of crazy directions. Because that wasn’t
what anybody was thinking about when they put
those people on the court. So that’s one of
the things that I think makes it hard for the
president to control the court. On specific issues,
I’ll give you two. I taught Morrison v.
Olson this morning, which was the
independent counsel case. And I would not be at
all surprised to see that go the other way if
it comes back to the court. And I wouldn’t be that
surprised to see it come back to the court, particularly
if this new bill in Congress to protect Robert
Mueller passes. I think it’ll be a tough
case for the chief, because there’s going
to be the perception that a court full
of Trump judges is protecting President Trump. I think that will
be unfair, because I think the conventional
wisdom about whether Morrison v. Olson was right
really changed in the ’90s as a result of
the Starr investigation. It won’t be a result of
the Mueller investigation. And as part of a general
trend towards more formalism in separation of
powers law, which I would expect to continue. The other thing is, this court
may be terrible for federalism. Kennedy was an enthusiastic
proponent of the Rehnquist court’s federalism revolution. He wasn’t really–
in some ways, he was a median justice
on those questions. But in some ways, he was
one of the most enthusiastic proponents. And I just don’t see any reason
to believe that Kavanaugh is going to be anywhere nearly
as enthusiastic as Kennedy was about this issue,
which is terrible. Poor Professor Young. Thank you so much. So we wanted to leave
quite a bit of time to have you all ask questions. So please, folks who have
questions, let us know. Yes, and you should
feel free to come down and use the microphones,
or just be quite loud. Up to you. So to the extent that Justice
Kennedy is, at least in more progressive circles,
really people are thinking about Obergefell,
the gay rights cases, Casey, to what extent is the
fact that Kavanaugh clerked for Kennedy make him
potentially more likely to not strike against the
kind of popular legacy of his mentor? Not at all. I just don’t see that
as the constraint. There are lots of things
that might make people hesitant to overrule or
substantially limit Obergefell or Casey, but I don’t think the
clerkship relationship would be the operative one. I also don’t see the court– I mean, I’ve given up
all prognostication after the 2016
election in that sense. But I don’t see this
five justice majority as being particularly
eager to write the maximally broad
opinion in those fields if a case comes up. That does not mean that I
see one of those five votes for explicitly reaffirming Roe. Nor do I necessarily see
one of those five votes as explicitly reaffirming Casey. The question is how a case
comes up to the court, and whether it would
be necessary to do one of those things in order
to dispose of the case, in order to reach the judgment. If they have to say Roe was
right in order to affirm, they’re not going to
say that and they’re not going to affirm. Other thoughts? I don’t know. I mean, I think the myth is that
clerks brainwash the justices. The reality is clearly that
justice brainwash their clerks. The thought of Justice
Souter’s disapproval just still reduces me to
a shivering lump of flesh. Maybe you just didn’t love
your justice the way we did. I think Kennedy’s
clerks loved him. It’s called tough love. There was another hand up, yes– Any or all of the
panelists could speak to how there
being a much more solid conservative
majority on the court might affect the cases
the court decides to take. That’s a tricky one. So as you know, it only requires
four votes to take a case. And so there’s a sense in
which losing Kennedy makes– shouldn’t make any difference. But there is a deeper sense in
which when people vote on cert, they are trying to
game out, likely, what the outcome will be. And so I think this is related
in part to Professor Sachs’ point about swinging
[AUDIO OUT] of unpredictability with any new justice. And although we know a lot
about Justice Kavanaugh’s record on the DC circuit, those
are different jobs. And it remains to
be seen what he’s going to be like as a justice. And so the first couple
of years, the justices are likely to be feeling
each other out, and trying to get a sense of how far
everyone is willing to go, and what their general style is. But then clues will emerge. And I think where we’ll see
differences are in issues that have been floating
around for a while and that everyone knows
are sort of delicate. [AUDIO OUT] I agree with others
that the likelihood is more in the chipping away. And the question is just does
it seem like we’re ready now, is now the time. When I was clerking, I
clerked for Justice Stevens, and he didn’t participate
in the cert pool, so we saw every cert petition. So we had to do very
minimal certs for him. But we had a list
of issues like that, that were just you’re
going to see these. And if you look at them with
your naive new clerk’s eyes, you’ll think, oh, my
goodness, the court should grant cert on this. But we all know that
we’re just not doing that until something happens. And so I think there will be
an interesting process in which the justices kind of figure out
their readiness or willingness to take up certain issues, like
the Chevron issue for example, that have been out
there for a while. Now it’s just a question
of is now the time and then what’s the right vehicle. One thing that struck me
about the late Rehnquist court is they were willing
to decide stuff. They decided big issues that I
think other courts might well have avoided. So Boumediene is one example. One of the issues
with Boumediene is to what extent is there
a constitutional limit on Congress’s power to
restrict the jurisdiction of the federal courts. And that’s a question
that’s been kicking around for 200 years, in which the
court had always avoided. There was only one decision
that ever struck down a congressional statute
limiting the jurisdiction of federal courts. And that decision was
so narrow and so strange that nobody had any
idea what it meant. And so I, quite confidently,
predicted that there are always going to avoid this question. They’re going to just
construe the statutes to allow some little window
of judicial review and say we don’t have to decide. Boumediene, they
could have done that. They didn’t. They reached out. And for the first time
since Reconstruction, they struck down
a limit like that. Obergefell, the court takes
that very quickly after Windsor, and reached out to
decide that question. And I can’t help but
wonder if the reason why– it was just a development of
the confidence of the court. That court had served
together for a very long time. And I think people
like Justice Kennedy, especially, had just developed
a confidence and a comfort level that this is the court
that decides stuff. We’re the decider. And we’re not going to
avoid these questions. The country needs an answer. And we’re just going
to give it to them. And so I wonder if once you
really shuffle the deck again, if it might take
awhile to redevelop that kind of confidence. Or maybe it was just a trait
of Justice Kennedy’s that we won’t see again for a while. Other thoughts? How about some more questions? Yes, sir, in the yellow hat. On the question
of specific cases that we might see
a shift in, do you think we’re going to see
a third big [INAUDIBLE] for the nondelegation doctrine? No. Maybe. No. Maybe, because that’s one of the
arguments behind the challenges to Chevron. But where do you go with it? I mean, the court can’t,
with a straight face, say that Congress has
to fix how it behaves with respect to
agencies, but that it’s totally fine for courts
to do all that work. And so unless they
just want to shut down the federal government,
or have some kind of pipe dream about Congress completely
changing the way it acts, that’s the reason why
they haven’t done anything with the nondelegation
doctrine for so many years. And so they might be tempted. But I don’t see them
pulling the trigger on that. The nondelegation doctrine
has had a number of good years as a matter of
statutory construction. So you construe
delegations narrowly. You construe delegations
not to cover sensitive areas like the power to restrict
individual rights. And so, in that sense,
it’s alive and well. And I would expect it to expand. And the big thing pushing
back against that tendency has been Chevron. And so the court has already
been making inroads on Chevron, based on these concerns about
nondelegation at bottom. But I don’t think they’ll
use the nondelegation doctrine itself. I think they will
restrict the power of administrative
agencies because they’re worried about nondelegation. But it won’t take that form. And just even for a recent
example, I think just argued the other day, the
sex offender registration case, which delegates discretion
to the attorney general to decide on whether
to designate a sex offender as people who
committed their crimes prior to the statute. And seems, in some ways,
to be an open-ended kind of grant of discretion. Seemed to trouble the
justices about this kind of discretionary grant. But it looked like, from
the argument at least, they were looking for a way just
to construe the statute as not doing what you might
think it’s doing to avoid this very question. I think that’ll
be the temptation. Great. So I think we have time for
just a couple more questions. Yes, sir, in the back. In the court of public
opinion, of which I am a lifelong member,
the current environment is one in which the
Supreme Court is despised by a significant portion
of the population, as is the present
administration, as is the legislative branch
to a certain extent. I would like your considered
opinion as to what extent you think the individual
personalities of the Supreme Court justices will be
influenced by public opinion during the next two years, six
years, and perhaps after that. So I think this is one
area in which there are many different publics. Because the Supreme Court has
been despised for a long time by a lot of folks. And so I think it will depend
a lot on who the justices see themselves as responding to. I think there was a sense that
the chief had sort of bowed to popular pressure
in the ACA case. I don’t think that’s right. And I don’t think I’m
saying that just as sort of respect for former boss. I was surprised when
I read the opinion. But I was surprised when I saw
the bottom line in the opinion. But once I read it, I
was like, oh, yes, this is a very chiefy opinion. This is just the sort of
opinion he would write. And so I’m not sure how much
they react to The New York Times editorial page, in
a way that they might have to a greater degree
in a previous era, and whether that’s in
part because of changes in the structure
of public opinion, or whether that’s just changes
in who the justices are friends with and respond
to, and whose disapproval they worry about. I think the answer
to that question is different now than perhaps
it was six months ago. There’ve been lots
of academic writings, of course, about the connection
between the Supreme Court’s decisions and public opinion,
however that’s defined. Many, I think, finding
that the court generally does not get too far out
ahead of public opinion. And you can see many examples
in which the court seems to be lurching towards certain
things that might be societally controversial, but finds
ways to kind of take its time to get there or to signal
steps along the way, just as a way of
kind of modulating its role in our society in
dealing with those decisions. So it certainly seems to be
aware of the public environment in which it operates. I don’t think it’s a
popularity question, as much as a sense of the
fact that the court is kind of the last word in a lot
of important legal questions and is one of the
branches of government. I would say, from the
national security law area, a lot of people thought it
wasn’t about popularity, but the court seemed to be
aware of the conditions in which the United States found
itself in the 2000s, with a kind of
protracted, unexpectedly protracted, indefinite kind
of conflict, that didn’t look traditional, people
being detained without any kind of particular
rights regime attached to it. And when the court first
started intervening was about exactly the time– I think that day of
the argument in a case called Hamdi, on the news was
people from Abu Ghraib being– the photos of people on the box
with the hood over their head. And it seemed to affect
the justices’ understanding of the legal questions
in ways that I don’t think we’re
about popularity, but were about the sense that
their decisions are obviously interacting with the rest of
what’s going on in the country. One of the conundrums that
the president presents for his opponents is
whether to view him as a buffoon or an evil genius. And I can’t help but
wonder if having solidified his Republican majority
on the Supreme Court, but being worried about
the court’s legitimacy and popularity, he didn’t
choose to do the one thing that would rally most
of his opponents to the Supreme
Court’s support, which is to attack the judiciary. And now, to the extent that the
Supreme Court becomes perceived as a valuable check on
an unpopular president, then I think it’s likely
to broaden its support over the next few years. Great, I think we have time
for just one more question. Any last hands? Yes. Back during the New Deal– as I understand it, the courts
stops opposing the New Deal, after the whole
court packing scare. In the current environment,
with some Democrats talking about
packing the court, do you expect the current
conservative majority to sort of moderate itself in
anticipation on that front, or do you think they
don’t take it seriously? I think they probably
don’t take it seriously. But I also think that’s
related to the last question about public support
for the court. So we can think about
public support for the court as an institution,
which is typically called diffuse support. And then we can think about
support for specific court decisions. I do think the justices,
and maybe particularly the chief, care
about public support for the court as an institution,
and their view of the court as a legitimate institution. One of the reasons why
you might care about that is, that if you
really went wrong, you might end up running into
things like court packing schemes. But my guess is that they’re
worried about things short of that, like before they
get to court packing, and that the threat is
too distant for that to be the thing that’s pushing them. I agree with that. Having looked into the 1937
debates on court packing, one of the things
that I was interested, and I was surprised to
find, was that plan really ran into a lot of trouble before
the Supreme Court kind of made its switch and started moving
in a different direction. And so there may be a sense
in which it’s unrealistic, because one hopes that
political safeguards tend to kind of mobilize around
such a big kind of threat to the institution. They may assume
that to be the case. The other thing I’d
say is, if there is now a big discussion of court
packing, not particularly based on what the Supreme
Court’s about to decide, but unhappiness
about what’s already happened with the Merrick
Garland situation and others. And so the extent there’s a
kind of momentum behind it, it may not be specifically
about what the Supreme Court’s going to be doing. Terrific. I think we are
officially out of time. Please join me in thanking
our wonderful panelists. Thank you all for coming.

3 Responses

  1. Shofiqul Islam says:

    Hot vido

  2. Gluluman says:

    Our legal system here in America is the world biggest fraud, full of theatrics, fake emotions, crocodile tears, nepotism and overt bias. The whole democratic system going back to King Henry the VIII is build on fraud, deception and abuse. To date, the morass the phony façade of freedoms, bill of rights and constitutional amendments intended to blur the proraterlian class, so to keep the new corporate aristocracy in power indefinably. With their herd of political peons and minions to do the biddings.

  3. stiv joz says:

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