Justice Elena Kagan Calls For SCOTUS Ethics Code | Advisory Opinions w/ Sarah Isgur and David French

welcome to advisory opinions I'm Sarah isgar that's David French and David we're in the same place we are in the same place we're at your standing desk standing here looking at each other doing the podcast we were having a bit of a discussion on standing desk so I've used a standing desk since through and since law school except for my clerkship where they wouldn't allow me to bring in my own desk and um for the last part of both pregnancies where that just became an untenable burden literally what is your standing desk philosophy um I think this is the first time I've been at a standing desk yeah I'm an evangelist so husband of the Pod now uses standing desks I've had I think four five sometimes I give them away like people you know let you borrow books or whatever with no intention of getting them back like I send my standing desk out into the world you send your desks out that's fantastic well I'm already can tell you're more disciplined than I am because you're standing completely still and I'm just swaying back and forth going from foot you know foot to foot I think it helps um obviously stay awake you don't get those afternoon sleepies when you're at a standing desk but I also think it makes you um it makes me feel at least less frenetic like I'm already up I'm focusing so it's okay that there's five different things being thrown at me because I don't know something about the standing and the moving yeah allows me to feel like I can take it all in yeah no it's I it I'm sure there's a lot to be said for it uh health reasons everything alertness yeah I haven't even showed you my little little surfboard down here that you can stand on that like is a balance thing also it's there's just so many great parts to standing desk life David but we have so much to talk about today this is a true legal podcast and it will in some ways be our last one of the summer because for the month of August instead of our usually off-topic August we're going to do legal books August so we will be interviewing authors all through the month of August now that doesn't mean that we're not going to talk about legal stuff uh we'll probably do half and half episodes several times but we have so many cool authors I don't even know if we can name them all right now but Keith Whittington juval lvin David lat John inazu um who else oh Bob Bower Bob Bower yeah yeah there's so many um yeah we've got a lot and we have uh two special guests for our next episode in fact Keith Whittington one and the other one to be to be revealed to be TBR yes okay so today a traditional advisory opinions podcast we will be discussing Justice kagan's remarks to the ninth circuit in all of their Glory I feel like the media didn't do a good enough job with all of the amazing and interesting things she said so we'll walk through all of that obviously Biden has now unveiled his proposed Supreme Court reforms that were the same as his I'm going to reveal my proposed Supreme Court reforms and um both have an equal chance chance of coming to fruition right judge Jim ho wrote an oped in National Review somewhat touching on some of these reform ideas and larded Leo formerly of the federal Society also put out a statement so talking about that and then boy do we have some fun case to talk about a 97 fifth circuit on Bonk case on non-delegation is stuff National Institute of Health violated the First Amendment according to the DC circuit boneless chicken and hopefully we'll get to a little Title Nine things along the way as well so David let's start with Justice Kagan Justice Kagan is the circuit Justice for the ninth circuit we've talked about this before that each Justice is assigned to a circuit some justices get more than one but the ninth circuit is a big circuit with a long and lovely history of what justices get to oversee it and she started by talking about her thoughts on Justice o' Conor who had been the night circuit Justice for some time and it was interesting it was it was sort of an awkward way to start in some ways because Justice Kagan didn't have a lot of personal Reflections on her time or conversation with Justice o'conor although she did hint at this conversation she said she'd never forget when she became the first female solicitor general of the United States and Justice o' Conor had obviously been the first female Justice in the United States and the Justice o' Conor called her and they had a conversation about being firsts but that's all Justice Kagan said she didn't elaborate no elaboration but she talked about philosophically that if you were creating a government and that all of the hardest most politically divisive questions would end up in a court of nine people but that actually only one person would really be the deciding vote in those cases that person would be unelected that person would have life tenure um etc etc she's like that'd be an insane way to run your country for 20 years but that's exactly the that we had and she says part of the reason she thinks that worked so well for that time was because that person happened to be Justice o Conor um and that even when you disagreed with her opinions that she was someone of great thought and um and someone who had their finger on the pulse I think as Justice Kagan phrased it for the country and what the country needed at any given moment and you'll notice Justice Kagan didn't praise her for being ideological or principled in the way that one thinks of ideology as being you know always sticking to the set of first principles that you had um I found that interesting that um Justice Kagan gave a pretty impassioned thought about Justice o'conor in that way yeah no I thought that was interesting as well and it really does speak to this period of time that we went through for an ex really an extended period where you had first Justice oconor then Justice Kennedy as quote the Swing Vote and so you were having a situation where time and time again on hot button cases people were coming in and basically aiming the argument at one person at one of the nine because they knew that one was going to be key and that is not the way you want to run things but at the same time the dis by the disposition and integrity of the individuals it kind of hung together I don't agree with everything that was decided in those circumstances but it was more stable than it might have otherwise been with different personalities and temperaments in that key role and David you know what else is really sort of interesting about large chunks of that time where Justice o'conor is the Swing Vote is that for some of it at least there were eight Republican appointed justices on the court renquist Blackman Stevens ' Conor Scalia Kennedy sudor Thomas in fact in the 1993 term those were all the justices on the court after uh justice white left the court so it was actually just eight Republican justices on the court um and so for all to talk about the Lop ited nature of the court right now and Justice Kagan didn't get into any of this um it's been far more lopsided in the past and of course um President Kennedy replaced Republican appointees to the court so did President Obama he replaced Republican appointees to the court sudor and Steven so both of his picks of Soto mayor and Kagan came from Republican appointees to the court and I guess I do have some leftover frustration and as I've said I'm very frustrated with Republicans about how they handled yeah um the Scalia seat and the Ginsburg seat but this idea that somehow these seats are locked in to belong to the party of the president who appointed them is clearly not true in recent history yeah oh of course I mean you fill the vacancies as they arise that's just the rule and but what is interesting to me is yes we had a republican dominated Court in the sense of dominated by Republican appointees but that's all while the filibuster existed and so I this is one of the elements of Court history that I really wish people would understand a bit better because there's a lot of frustration on the right that all of these republican appointees from previous eras did not do the things that Republicans necessarily wanted them to do they they became labeled as squishes they became labeled as disappointments some of them not all of them but what's important to remember is you could not get a Justice on the court without Democratic votes then you just couldn't it and Democrats couldn't do it without Republican votes and that's going to mean that the nominees are going to be different kinds of nominees it just does and it's not a sign of failure of will of Republicans or whatever to not have gotten more committed sort of originalist justices this was they were working within a very different system and we'll see in 2025 years how much we like the current system but that was a different system other question that Justice Kagan addressed why so few cases at the court and I love this quote from her nobody knows it reminded me of that SNL skit uh that Nate baratti did of where he played George Washington about like how they one of the greatest of all time fighting for certain grammatical rules breaking from English tradition nobody knows um and you know I've actually been doing some digging into this and there's this idea that basically with the rise of the C pool that started in 1973 clerks suddenly realized that they could be really embarrassed if they recommended taking CT on a case and then it turned out that case was a dud for whatever reason and so they became search shy and there's certainly evidence that the clerks are search shy but the actual data on the docket decreasing doesn't really bear that out unless you think it took 20 years for the clerks to realize that they could be embarrassed um so you know the other theories are that the individual justices that joined the Court replaced justices who believed in having a really robust docket taking every circuit split that was Justice White's uh Mo and that the justices that came on just didn't believe in that having such a large docket but of course that to me begs the question okay but why didn't they believe in having such a large docket it just brings you back to more questions as to why that cultural shift would have changed in the first place um but you know Justice Kagan nobody knows but she does say that she thinks she's working just as hard and she insinuates perhaps harder than when she first joined the court because of all of the emergency docket issues um which you know don't get counted in their 60-ish cases that they're taking a year but you know when she was a clerk it was like 150 now it's 60 I get the emergency docket takes up some space she said that even if she was here in July at the 9th circuit she has four memos from her clerks about certain things pending on the emergency docket one of which we're going to talk about in that uh Title 9 situation but um but I don't know that that for me accounts for the drop in C grants yeah this seems like one of those things where if you ask different justices you might just get completely different answers where their own decisions on what they choose to accept and why they choose to accept it might be somewhat idiosyncratic or might be strategic in a way that they're not with other justices um yeah it strikes me as one of those one of those questions that just not going to have a clean answer to it and you know when it comes to granting CER it's the rule of four you need five justices to decide a case four justices to take a case there had also been this join three vote which was basically as you go around that conference table a Justice would say if there's three votes right I will join to be the fourth a courtesy fourth if there's not three votes then I vote to deny because you know you're going to go around and vote in seniority order so you don't really know how everyone else is going to vote and so um there's also been some scholarship about the death of the joined three votes and again it goes back to very specific justices replacing other specific justices who just aren't joined three years but again I think that just leaves you with okay but why are now so many of the justices joining the court right not into that as talking to clerks though and and you know previous clerks over the last 10 years what they'll tell you is it's not really a lot of strategic voting on C grto maybe there's some you know well I don't want to vote to Grant this case because I don't think there's five votes to come out my way but it's not like you'd think and we've talked about this before um if it was a conservative Juggernaut court with six solid votes to come out the way you want every time and let's even say it's five let's discount the chief then you'd actually expect the CT grants to be going up to be spiking but they're not they're because they're they would be like I've got a lot of problems with you people and I've got some scores to settle here yeah yeah yeah um and gets to something Joan biscup at CNN published a piece about the net Choice case and the internal Dynamics leading up to that initially Justice Alo was the majority author and then after he circulated his majority opinion draft about the Texas and Florida social media laws he lost Justice Barrett and he lost Justice Jackson as well that's how Justice Kagan ended up writing the majority opinion in net Choice according to Joan biscup um but there's plenty of evidence that that is accurate given how few majority opinions Justice Alo wrote this term yeah that was one of the the that was a data point in Jan bisc Puck's favor here was he wrote four majority opinions that's not enough not enough not enough and this would not be the first time this happened because there's a lot of uh informed speculation that the minority the the dissenting opinion that he wrote In The Fulton case revolving around religious liberty and Foster Care was set to be the majority but in that it looks like he might have lost Baran Kavanaugh because Baran Kavanaugh wrote uh concurrences in the Fulton case that were okay if you're going to replace Employment Division V Smith with what now let's slow down a minute before we do that yeah and um again for biscup piix reporting you'd had the fifth circuit uh citing against the social media companies and you had the 11th circuit siding with the social media companies and Justice Alita was going to take up the fist circuits mantle and say yes this as a facial challenge fail so that top part of the opinion would have stayed the same but then saying but the fifth circuit seemed to apply the law correctly instead you end up with Justice Kagan writing no the 11 circuit seemed to apply the law more or less correctly um it would have been a big difference oh yeah and it gets to those how why it might be very hard to make strategic C Grant votes because they clearly do not entirely know how each one of them is going to vote and potentially how they they themselves are going to vote if they voted initially after conference one way and then see the draft and are like well never mind yeah no I I you the the the entire CA the case load of the court is fascinating to me and but at the same time I've been sort of thinking okay what are the areas where there is a real need for more Juris Prudence what what are the areas and now there are people in all kinds of areas of federal law who could probably say an X Y or Z Arena that are not hot button that are not super contentious there's unresolved circuit splits and a lot of that is just stuff I'm not tracking I just I wouldn't have the ability really to track it but it does seem to me that the court is and even looking at the C Grant so far and of course we'll see a lot more in September um it it feels as if the court is punting a lot of the culture War back to the political branches and if it keeps doing that you know then then you will continue to see maybe lower some of these lower case loads well to tie in a little bit more of Joan bisi's reporting and she always does this at the end of every turn she you know on a Monday Tuesday and usually Wednesday sometimes even a Thursday we get these bombshell reports of the internal Dynamics within the court of how certain opinions came about well another one she wrote was on the internal Dynamics around the Trump immunity case and that the chief was kind of always where this was it was always going to turn out this way it was a 6-3 vote from the get um so in some ways her bombshell reporting was that there was no bombshell here and Justice Kagan I want to be clear was not referencing the Trump immunity case whatsoever when she said this she was quoting Justice Gorsuch quoting Justice white a story that Justice gorsich tells when he was clerking for justice white in which uh he would go to Justice white and say you know I don't understand this decision it's does it's very muddled it's not making a lot of sense to me and Justice white would say was it an April argument and then he would say do our worst work in April and there's in fact some scholarly research in lot ofview articles that show that April argument cases are more likely to be overturned later by the Supreme Court than any other argument month interesting and it makes sense because not only do they then have 60 days or less to get the opinion out but sort of like the kid who's left all their homework to the end anyway they've also got all the other work that's piled up that's circulating and then they get another term paper dropped in their lap at the very end of April if it's the Trump immunity case boy it felt more true to me this term than other terms that an April decision was the hardest to understand the most muddled and when you think about the fact that it wasn't just that they only had 60 days but that they had all this other stuff they were trying to get done too maybe my side eye at the chief's normally so concise clear writing uh you know maybe it's an April problem as Justice white said it could be I mean but it's absolutely a problem when you have an opinion that very very very smart people read in good faith and cannot agree on Bic like can can the president take a bribe like we don't know we don't know TB TBD TBD um okay some other things that Justice Kagan talked about in front of the N circuit she is anti-c concurrences and in fact Justice Kagan um by a order of magnitude writes the fewest concurrences as a Justice on the court her argument is it muddies the waters and there are times to write a concurrence I.E when perhaps you would have voted for the same outcome but for entirely different reasons but she says just because you would have written the majority opinion differently that is not a reason to write a concurrence because it confuses lower courts um and it's it's sort of an act of um she again not her words arrogance if you will to just think the world really needs to hear how you would have written the majority opinion like of course you would have written it differently you're a different human being um Adam White over at AI he and I were talking about this and I asked his permission to to say this but he called he said concurrences are the fanfic of Supreme Court jurist Prudence true enough um and there have definitely been an increase in concurrences at the court I don't have the numbers right in front of me but roughly speaking uh you know 20 years ago it was about7 concurrences and now we're at 1.8 concurrences per majority opinion and Justice Kagan pointed to rahimi for instance where every Justice except for justice Alo gave in to that um urge so I take a backseat to no one in my regard for Justice Kagan however I'm going to say I'm team concurrence here and but are you team concurrence because we're podcasters and we like knowing what they're thinking or are you team concurrence because it's best for the law I'm team concurrence because I'm not just a podcaster I'm also a recovering litigator who would have what was it it was the uh the hair Just For Men yeah I'm not just the president I'm a customer I'm a customer I'm not just a podcaster I'm a litigator um or a former no when I think about it because okay it depends on how the concurrence is written let let me let me go with say the one of the the Kavanagh concurrence and dobs so I found that to be very very useful because what he was basically saying was laying down his own marker that if you are a a litigant and you're looking at sort of things like travel restrictions for example which is something that he addressed you're gonna know right there oh boy uh I don't think we've got Kavanagh on that right and you know you don't have the three other three Democratic appointees so you have valuable information similarly Kavanaugh concurrence with bruan where he talks about hey look we're not saying that we're sweeping away all kinds of of gun control uh restrictions and I again that forecast in many ways rahimi so if you'd read Kavanagh you would see you would know that well you've got a guy here in Kavanagh who's not necessarily on board with the strictest possible reading of the historical record that he's going to have some permission structure for other kinds of gun control restrictions so I and then finally Sarah I think the rahimi concurrences I've said this before I'll say it again it was like a smorgasborg if you are interested in the philosophy of the justices which is a matter of extreme public interest I think and so that's why I I can see that you could do it poorly I could see that you could do a concurrence that does truly muddy the waters but i f as a general rle I find them clarifying okay I think you're both right and therefore Justice kagan's writer in the sense that um you're talking about litigators being able to anticipate the court and I don't know that that's the job of the Supreme Court to Signal where they'll go next and that perhaps it she's right that it just would be clear to lower courts If This Were the decision and that's it you then as lower courts let that percolate see how you would apply it to this next set of facts instead of looking at the chicken in trails that Justice Kavanaugh left you um and trying your best because the fist circuit you know in good faith I think did try their best in Rahe looking at those chicken in trails and they got it wrong to I totally I totally agree but let me let let me explore this what did they get rahimi wrong because there weren't enough concurrences in Brewing I hear you I I sort of anticipated that that response regardless yes okay so uh two more things that Justice Kagan talked about one missing Justice Kennedy on the court uh this came up in a conversation about collegiality on the court and I love the way that Justin Kagan pushed back on this idea that if you don't have Justice Scalia and Justice Ginsburg going to the Opera together there must not be collegiality on the court right and her point is like collegiality for what purpose if it's to like have adorable headlines about like dogs and cats hanging out then yeah I guess that's missing fine and you know what and she didn't say this but in seriousness I think it does help the institution of the court from a purely dogs and cats hanging out forec yeah I totally agree with that but Justice kagan's point was collegiality has a purpose and the purpose is are you open to someone else's ideas do you talk to them enough to understand their perspective that's different from your own but a good faith interesting perspective that you want to hear more about and she says we do have that um you know when we have lunch together every day after oral argument um you know that's part of what we're building and she's like some of my colleagues like to talk about sports for instance I wonder who would be who that would be she referenced baseball in particular and she's like so that's there and she's like I think you can see that um the opinions she says that being said she misses Justice Kennedy because he was the civility enforcer he had the ability to call any other Justice and say take out that line it's not necessary um and Justice Kagan says she tries to avoid adjectives in her own writing for that exact reason and she says at the same time she'll look back at something she wrote 10 years and go yeah probably didn't need to include that yeah and so missing that civility enforcer um she misses on the court and what a lovely thing also just um to to have said about you if you're Justice Kennedy yeah it is it is really and it's a wonderful thing it's an affectionate thing um and you know look at some level the proof is going to be in the pudding because if you're looking at and we talk about this all the time there are a lot of unusual what you would call unusual lineups unusual if you only look at it from a partisan perspective when you learn more about the justices they be get they get less unusual the lineups but the fact of the matter is you do have lineups frequently that do not match this alleged partisan breakdown at all you have almost half the cases that are unanimous so there is some proof in the pudding and you know that they're listening to each other right and that they're if persuading might be the wrong word but if you're listening you find those strange bedfellow like actually I that fits with what I believe as well well and this goes to something that we talk about a lot which is I of the three branches of government I think we would both say that we think the Judiciary is the best functioning of the three branches doesn't mean it's perfect it doesn't mean it gets everything right I mean we have had beef on this podcast with um you know with various decisions I've had beef with you know in particular the two Trump decisions in this last term but if you want to say what what is work I you know I keep thinking of my friend uh who started after he listened to this podcast started listening to Supreme Court oral arguments just to be reminded what serious argument in American government sounds like and I think there's something to that if you read the opinions and the Supreme Court if you listen to the oral argument what is happening is serious people making serious arguments you do not see the grand standing that you see in Congress you do not see the viral gotcha moment listen is Sonia Sodom or destroys you know you don't have that it is serious people making serious arguments and I think to be honest um one of the key value ads of this podcast not to promote the podcast to people who are already listening to it but one of the key value ads is I think that's the Insight we have into the court that is far more accurate than the insights of those who say no it's just a political creature it's just it's just driven by the demands of tribe Andy loyalty Etc I think that's just off that's just off and you see that when Justice Sodor compliments Justice Thomas or you know he knows everyone in the whole Courthouse regardless whether you're you know working the elevator in the cafeteria a clerk of someone else you know some other Justice um you know you don't say those things unless you're having lunch or notice that about your colleague um this brings us to the ethics question by the way because along those lines Justice Kagan was asked about a binding ethics uh reform package for the Supreme Court she said she's in favor of it um she said you know in order to make it binding it's It's Tricky she suggested having the Chief Justice appoint Lower Court judges um she didn't say exactly how many but I got the feeling we're talking a panel right maybe three maybe five of people with a reputation for being fair-minded and ethical great um and she says look Not only would this provide confidence to the public but frankly it would be a help to us because some of these attacks are are unfounded and then you'd have these fair-minded Lower Court judges calling the balls and Strikes and again she didn't say but seem to imply and a lot of them would be strikes so think of it like body cameras for police officers a lot of people on the pro police side or for body cameras because it was going to show that that bad thing didn't happen right um I think there's you know legal issues she raised this as well with having Lower Court judges who are under the Supreme Court now be above the Supreme Court for certain things and it would be binding and how would that work would they have subpoena power lots of people have raised problems the point that's interesting though is you have a Justice of the Supreme Court coming up with her own ideas of how to make this binding ethics pledge yeah uh ethics um reform package I like it I like that idea a lot actually my one refinement would be make them senior status uh Circuit Court just judges oo who they no argument that they're angling for something there's no way they're sort of there's no way that you could argue that they're currying favor I really like the senior status part I also think that this would just take the whole ethics thing out of the institutional problems for the Supreme Court and that is an Institutional win for the Supreme Court because I think I agree with her that in the majority of cases it will either be that it wasn't against the rules when it happened or that it's simply not against the rules that it was not factually accurate etc etc and so I don't know why all of the justices at this point wouldn't want it to be binding and just put it on someone else right put it on these judges yeah oh I I think it's a very very smart idea um I I I've been sort of turning it over in my mind ever since I heard it and it's hard for me to see sort of a clear downside here other than let's suppose you're a Supreme Court Justice and you say nah that there are legal problems there are legal problems that arise as she flagged and as others have flagged since then um last thing David that I just thought you would be interested in she was asked about the future of administrative agency action post Chevron and she said I don't know for three reasons because we don't really know what the lay of the land is going to be one Congress of course could simply pass a Chevron act right and make Chevron Difference by Statute two she says Congress can also in any given statute explicitly defer to agency expertise on these types of questions um and how much will they now do that knowing that it's not sort of built in already and three she says we've reverted back to Skidmore Defence which came you know whatever that was 40 years before Chevron and Skidmore Defence is just you uh give great respect to the agency's interpretation and she's like we don't know how beefy that's going to be and how muscular that type of difference is going to be felt like a concurrence of sorts yeah yeah no I I I think I think that is a very very interesting question and it is absolutely the case that Congress can write around Loper bright there's just no question about that where it really comes into play in my view are when you've got more agency interpretations or new agency interpretations of existing statutes and you know we've got one on the emergency docket right now we've got the Biden appeals of Lower Court decisions blocking parts of his new title 9ine regulation and again this is another one of those situations where Title 9 has not changed it is still the same statute but it means something different under Obama it means something different under Trump and now it means something different again under Biden and that is what to me that's where you're going to really see the effect in my view of Chevron I think I mean of removing Chevron it's these older statutes that have been sort of executive branch play things for the last several decades perhaps and they're not going to be there's going to be essentially one interpretation one of the fun things about the summer is that the justices do tend to sit down for these longer form interviews and we get to pick them apart yeah do they now so we'll be looking forward to more of those as the summer continues next up President Biden issued his three Supreme Court reforms that were exactly the same ones that we saw when he said he was going to propose three Supreme Court reforms so one an amendment to supersede the Trump immunity case I've already said I like that conceptually because it reminds people that you can always supersede a Supreme Court case either through statute or through Amendment the political process always has the last say um and I think there could be popular support for such an amendment not in this exact moment less than a 100 days fewer not in this moment fewer than a 100 days till the election but at some point there actually could be so okay uh two 18-year term limits for the Supreme Court Justices if Harris were to win this would uh potentially allow her to replace the Chief Justice and Justice Thomas of course she'd have to win the Democrats would have to control the Senate and this would have to be a real proposal which uh given the fact that President Biden didn't even talk to members of his own party in congress makes one think that it's not and perhaps most importantly There's real legal questions over whether you can do this by Statute or whether that would have to be a constitutional amendment as well we've talked about term limits um I came in term limit curious I left term limit no dogging so I'll get to you in a sec number three binding ethics code again no real meat behind what that would look like real questions of how it would work legally it was a pretty short oped All Things Considered David this is press release politics at its most obvious but also oddest because he's not the nominee and frankly anything he's doing right now is hurting Harris because she needs to control her own message and not get sort of whipsawed around by stuff the White House is doing that they don't need to yeah this is what pre press release politics messaging legislation is another way to say it where you're filing something basically the the charitable way of describing messaging legislation is to say I'm taking a stand yes the uncharitable way is saying I want on TV um and and so one of the problems that we have in this world of Journalism is I I always have this kind of I'm not your trained seal to respond to your messaging legislation so if if it's not serious if it doesn't have any real Prospect of passing how much time do I want to think about this but there are but this is a little bit different so without being a hypocrite I want to talk about the messaging legislation a little bit one I love the idea of a constitutional amendment that's a that's a proposal that's not it it's least likely to occur because as we know constitutional amendments are hard but I like what you said It reminds people that these things do exist um second I want the conversation about term limits if you go to fix the court which has uh been advocating term limits for a while they have this really interesting lineup of what all the Senators who've been on the record about term limits what they've said and it is not a uniform list of Democrats saying term limits term limits term limits you've got quite a few Republicans on there saying oh I'm open to this I'm open to this let's think about this and in 2015 Ted Cruz famously wrote a pretty ringing endorsement of term limits after oberfell now the problem we have with term limits let's be clear you and I have talked about it but here's another one the people who are for it are almost always the people who think they've lost the court for a generation so after oera fell to the was probably the lowest point they the most pessimistic conservatives have been about the court in a long long time and so yeah they were for term some people were for term limits now they're extremely optimistic and they don't want to be for term limits it's the classic same thing that happens with the filibuster uh every couple of years somebody will say you know that filibuster doesn't seem so great anymore and they're always in a narrow majority when they say it so and then on the ethics code I've got to say I'm I'm a little bit persuaded by the Leonard Leo critique which is can I read the Leonard Leo read the Leonard Leo critique because there's Parts I don't find persuasive but I I'll first talk about the part I do no conservative justice has made any decision in any big case that surprised anyone so let's stop pretending this is about undo influence it's about Democrats destroying a court they don't agree with if President Biden and the Democrats were truly serious about ethics reform then they would ban all gifts and Hospitality of any kind to any public official in any branch of government starting with Congress where the real corruption is they would close all the loopholes that allow members to travel on private jets to fancy hotels and restaurants with respect to judges they would include the things where influence pedaling is most present and dangerous and that's when the liberal justices rub shoulders with influencers at places like law schools bar associations Progressive think tanks and their conferences and other groups and events funded by leftwing billionaires where they support real vested interests in the work of the court let me be clear if Democrats want to adopt an across theboard ethics ban for all branches I am in favor of that no Jets no meals no speaking honorariums no gifts for anyone from any one no gifts for anyone from anyone for any reason in any branch starting with Congress until they support that let's all be honest about what this is a campaign to destroy a court that they disagree with okay rhetoric's A little overheated um anytime you say let me be clear yeah that could just come out but okay yeah exactly but he's got a point about ethics more broadly I mean look we right now there's more there's legislation pending around in stock trading by members of Congress of Congress do well in the stock market um I find that a problem a problem so I I'm with Leo 100% on let's just have a uniform Federal ethics code that applies to everybody and let's make it Pretty stinking Draconian let's just make it Draconian now my other addition is and let's raise people's salaries that's my my other addition let's make the gifts Draconian let's raise people's salaries um so yeah I'm I'm with them for that I'm I'm not with him on the opening sentence where there's been no surprises um I've been a little surprised by a couple of cases but I do not chalk it up in any way shape or form to corruption or gifts or anything like that I just chalk it up to disagreement and I think broadly we've seen across the political Spectrum a lot of agreement on having ethics reform they just wanted to apply to different things yes um and I I've raised my hand and said like absolutely these things must like Congress is far worse and there's a reason we're not focusing on Congress and we're focusing on the courts and that's the political reason so why members of Congress can trade individual stocks and the insider trading rules around that is bunkers town in the most Bonkers towy sense um and yeah I do think that there's a problem with an Ethics code that basically has a loophole for things that Liberals are more likely to go do conservatives right but I'm less worked up about that but fine okay uh judge ho wrote an oped about this as well judge ho in the fifth circuit he said public service is a public trust the American people deserve a government that upholds the highest ethical standards but the reason attacks in the Supreme Court aren't about improving judicial ethics they're about undermining them judges are supposed to decide cases based on the law not self-interest but critics of the Court want the justices to rule based on self-interest namely the interest in avoiding criticism their goal is not to restore confidence in the Judiciary but to bend judges to their will by shaming those they don't like we know this because the critics aren't applying consistent ethical standards they're applying hypocritical double standards and he mentions all the things that we've talked about this podcast Justice ginsburg's comments about Donald Trump's taxes and then she rules on Donald Trump's taxes several of the justices with uh and judges with spouses who work for organizations that file briefs before their court or before The Supreme Court including Justice gin PBG again um the one that we perhaps haven't talked about is the media response to for instance Justice Alo going on a fancy fishing trip in Alaska versus Justice Jackson getting front row Beyonce tickets one of those Shady scary corrupt the other one OMG so cool sleigh Queen Beyonce's amazing right and in fact the underlying ethical problem should be the same and you know we talked about this uh offline in our podcast Green Room uh and I think one this is one of those Environ this is one of those circumstances where you really do begin to see sort of how the ideological monoculture of newsrooms and and not just the ideological monoculture but the cultural monoculture of news rooms comes into play because your average person say in a newsroom looking at the Beyonce story might think well that's fun a Beyonce concert is fun and Beyonce is not trying to influence the Court they're not trying to Beyonce's not trying to get a particular legal Doctrine enacted this is just somebody reaching out to somebody they admire big deal no it doesn't matter whereas if you say well some a conservative Justice got Miami Heat tickets thanks to a billionaire that the journalist doesn't know or might be an industry that the journalist doesn't like then a lot of the suspicion starts to lock in what's going on here who is this person so Beyonce it's fun fun cool this other billionaire who are you what's your agenda and it's a and and some of that's almost it can be almost like automatic unconscious um and and look you know I don't think that there's I think we we use terms like the media way too broadly like way too broadly but there is a phenomenon where there is there has been less less angst over some of the actions of some of the progressive more Progressive justices no question all right time to do some case stuff um should we start with the title nine uh emergency docket petition to the Supreme Court and David this has been percolating we haven't actually covered it a ton but court after court have ruled against the Biden administration's uh title n rules as applied to trans athletes in schools well and and so that you know that the department of education issues broad new title 9 guidance that was going to in effect and it it deals with things like pronoun usage it deals with um access to bathrooms Etc will gender identity be considered encompassed within title n which is uh which is which prohibits discrimination on the basis of sex it doesn't on its terms to uh prohibit discrimination on the basis of gender identity and so this has been challenged in a number of Courts and so far there have been injunctions issued against the Biden Title 9 guidance and so the Biden Administration is charging up to Supreme Court to try to get its uh its you know get its regulations back in other words and here's the interesting question for me about this Sarah I think based on the bosck precedent that is going to be very hard for the states who are challenging or the litigants who are challenging this title n guidance to say no gender identity is not going to be part of sex discrimination um that's going to be a hard argument to make no it'll be a hard argument to win hard argument to win sorry sorry hard argument to win to say that gender identity discrimination is not encompassed within sex discrimination for all the reasons in the Gorsuch opinion in Basta however however that does then not automatically mean that there will be you know biological males have access to um women's restrooms and high schools it does not automatically mean that pronoun usage for example would be mandatory or preferred pronoun usage would be mandatory because there are other interests at play and then there's this other issue here Sarah that is goes back to some of the administ ative law conversations we've been having all along as I just said the statute hasn't changed but the law keeps changing and so I'm going to be fascinated to see how the court ultimately addresses this this is going to come up post Chevron uh so there is not going to be deference to the Biden Administration um and if I had to predict I would say they're going to say that gender identity non-discrimination is encompassed within Title 9 but that that does not necessarily also mean that there is access of biological males to females restrooms or that pronoun usage will be mandatory because those implicate other rights intermediate scrutiny it's whatever you want it to be and gender uh distinctions have always been intermediate scrutiny I think this over the summer at least also implicates the Nationwide injunction or just Universal injunction things and you look at the solicitor General's brief to the court and really what they're saying is they enjoyed too much there are things they didn't even argue about that they didn't even say could be unlawful that got en joined and so do you see the court step in with something pretty narrow here do you see them just say no because they're so tired of emergency docket stuff but at the same time they're also tired of large uh blanket injunctions there's a lot of different factors pulling against each other for this petition um and it's the summer and they'd rather be doing other stuff yeah this is crossing a lot of streams to use a Ghostbusters reference and so I've just got to say I've got a punt on this one I don't know I don't know they've also been very um hesitant might be the wrong word they have simply not taken any of these cases yet any of the transgender cases they have one coming this term in the fall it's very different it's very different um so yeah we'll see it would not surprise me if we end up with two transgender cases in the next term this one and the in the child gender transition case both of them coming out of Tennessee all right next up we have the fist circuit on Bonk case this one I thought we should talk about because I think it will be going to the Supreme Court we now have a pretty drastic circuit split over something that frankly not many of you are going to care about but you should because all of you are affected by it so this was 97 so pretty close call on the fifth circuit even they break with the other circuit uh the 6th the 11th and there's one other that they've broken with on this and it is the uh tax that is on your cell phone bill the universal service tax and it's on all of your cell phone bills go check it out so in 1995 they collected $1.4 billion and in 2021 they're now collecting billion as the tax has been increased that much so who's increasing it well Congress delegated that taxing power to the Federal Communications Commission in 1996 and then the FCC subd delegated that power to a private corporation that private Corporation then in turn relied on a for-profit telecommunications companies to determine how much it would actually be so this is a lot of turtles all the way down delegation so this is what was interesting to me about the fist circuits opinion there's one way that they ended up ruling on it but sort of three arguments here one non- delegation uh I'll read here from the opinion first congress's instructions are so ambiguous that it is unclear whether Americans should contribute 1.4 billion or 9 billion or any other sum to pay for Universal service second private entities bear important responsibility for Universal service policy choices third it is impossible for an AG grieved citizen to know who Bears responsibility for the USS serious waste and fraud problem all three of those things implicate Bedrock constitutional principles yada yada yada back to the end so amidst all the statutes that have survived non-delegation challenges this one stands alone unlike delegations implicating special agency expertise this delegates to the FCC the power to make important policy judgments and to make them while wholly immunized from the oversight Congress exercises through the regular Appropriations process unlike delegations implicating the power to impose criminal sentences taxation has always been an exclusive ly legislative function unlike the power to impose conditions on the use of public property taxation involves the conversion of private property and unlike other Congressional delegations implicating core legislative functions this is a hollow shell that Congress created for the FCC to fill so amorphous that no reviewing Court could ever possibly invalidate any FCC action taken in its name but they end that section by saying so we're concerned with that now part two this is the private entity part of this from them we one explain that the scope of fcc's Delegation to private entities May violate the legislative vesting Clause by allowing private entities to exercise government power two explained that even if the sec's delegation could be constitutionally justified the secc may have violated the legislative vesting Clause by delegating government power to private entities without Express Congressional authorization so the FCC has not delegated to private entities a trivial fact Gathering role it has delegated the power to dictate the amount of money that will be exacted from telecommunications carriers and American consumers in turn to promote Universal service in other words it is delegated the taxing power they say well that's concerning too but here's the part that's really interesting they basically say that while neither one of those may be definitive or may be unconstitutional they both may be constitutional the combination is unconstitutional so then they go on to explain quote why an agency action involving a broad Congressional Delegation and an unauthorized agency subd delegation to private entities violates the Constitution even if neither of those features does so independently there's a lot of text history and tradition being thrown out in that section noting that of course um you know Congress could do this specify it but they didn't um and so yeah I think the Supreme Court will probably have to take this one David yeah I agree I agree and it's really you know I know the fifth circuit has been sort of the Supreme Court's um Whipping Boy uh of late I kind of think they're going to get this one I think they've kind of got this one right if yeah if you're looking at and and I agree the com the combination puts this on tilt the it's the broad delegation makes you you your s you've got your side eye at the broad delegation but then if the government goes ahead and uses the broad delegation to do something that's not authorized by the statute that's actually kind of unusual then then the side eye comes what's beyond side eye right like maybe Congress can delegate something that broad in a morphus but they never said you could then delegate it that we're delegating to you but you don't get to delegate to somebody else um all right next up uh DC circuit case about the National Institute of Health and David this just follows along that litkey case about for instance State local officials blocking people from Twitter um and they basically had this test right of like well you're going to look at whether they're speaking with the authority of the government yada yada in this case the NIH has a Facebook page and in the comments they basically have keyword blocking and I'll just read you the keyword National institutions of Health Facebook page has keyword blocking okay in the comment section in the comment section got it here are the words that are blocked paa P Latino animal animals animales animalitos cats Gatos chimpanzees chimps hamsters marats monkeys Mouse mice primates sex experiments cruel cruelty revolting tormenting torture torturing hashel mothers marijuana cannabis Hitler and Nazi so so you ban Gat which is Spanish for cat un unless I don't know Spanish I think that's right that's correct okay and you ban Hitler that's right from cats to Hitler that's a good T title for this podcast from cats to Hitler from cats to Hitler okay so Peta Sues and says that this violates the first amendment that they're being discriminated against um and basically the DC circuit says yes this uh the NIH in their comment section created a limited public forum and just for those thinking back to when we covered all of the different types of forums uh under the First Amendment a limited public forum is a government created Forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects as in non-public forums speech restrictions in limited forums need only be Viewpoint neutral and reasonable in light of the purpose served by the Forum so let's jump into one of the facts here in July 20 2021 one of their posts the National Institute of Health post featured a photo of the eye of a zebra fish the caption read in part this picture of an anesthetized adult zebra fish was taken with a powerful microscope that uses lasers to illuminate the fish end quote it is unreasonable to think that the comments related to animal testing are off topic for such a post yet a comment like animal testing on zebra fish is cruel would have been filtered out because animal testing and cruel are all blocked by N's keyword filters so um I think that's really interesting and builds upon some of these first amendments blocking what is the Forum how is this going to work work type cases that like yeah obviously when those are the words that the NIH blocked they were trying to prevent certain viewpoints from being expressed on their PO on their post view points about animal testing right and you know this is another one of the circumstances where offline analogies are helpful in the online space so even though NIH does not own its Facebook page the Facebook page belongs to Facebook and this is something that going back to the Twitter CA cases this was my big question okay wait a minute if I don't own the page and if I don't have actual control over the page that that's shared control with ultimate control with Facebook can I say that this is my Forum but the courts have basically said okay well we're deciding that yeah it's your forum and once you've decided that one of the good offline analogies would be imagine if the government rented a space in a hotel to hold a town council meeting and then while it was using that rented space suppressed the free speech of people in the community they wouldn't be able to get off scottf free by saying well but that was at a private place this that wasn't public action this was all in the hotel the hotel's the hotel runs it we don't we were just guests no but if you have the space if you control the space for a purpose in a particular time then yeah then the Constitution's going to the Constitutional restrictions are going and limitations are going to attach it's also pretty clear this isn't viewpoint neutral in your example for instance if someone stood up and said yes this is exactly the type of science we need that would be allowed but if they said no this is not the science we need because it relies on animal testing that would not be allowed right on referencing our our poor little zpro fish right so I don't think this was a close call um congrats DC circuit yay First Amendment and David this takes us to our last decision the one that everyone has asked us to cover boneless chicken okay so this is a case where a guy goes and orders boneless chicken wings he eats them he feels something weird in his throat tries to like cough it doesn't really work um days later he gets a fever it turns out that he ate a small thin 1 point something millimeter bone and it ripped a hole in his esophagus that then got infected he needed surgery it all went very very badly so he sued um and the Ohio Supreme Court in a relatively close decision held that writing boneless chicken wings on your menu was not a promise of boneless and uh I'll just read you a part of the dissent here the absurdity of this result is accentuated by some of the majority's explanation for it which reads like a Lewis Carroll piece of fiction the majority opinion states that it is common sense that the label boneless wing was merely a description of the cooking style Jabberwocky there is of course no Authority for this assertion because no sensible person has ever written such a thing the majority opinion also states that a Diner reading boneless wings on a menu would no more believe that the restaurant was warranting the absence of bones in the items than believe that the items were made from chicken wings just as a person eating chicken fingers would know that he had not been served fingers more utter Jabberwocky the question must be asked does anyone really believe that parents in this country who feed their young children boneless wings or chicken tenders or chicken nuggets or chicken fingers expect bones to be in the chicken of course they don't when they read the word boneless they think that it means without bones as all sensible people that is among the reasons why they feed such items to young children the reasonable expectation that a person has when someone sells or serves him or her boneless chicken wings is that the chicken does not have bones in it uh instead of applying the reasonable expectation test to simple word boneless that needs no explanation the majority is chosen to squint at that word until the majority's sense of the colloquial use of language is sufficiently dulled uh as noted above I certainly am not convinced at this stage of the proceedings that the processor the wholesaler or the server of the chicken was careless or negligent but I am convinced that the plaintiff in this case should be able to present evidence of their negligence to a jury jurors likely have eaten boneless wings some will have fed boneless wings to their children and jurors have common sense they will be able to determine better than any Court what a consumer reasonably expects when ordering boneless wings David this was not a fight about the word boneless or boneless wings or the expectation one has in ordering boneless wings this is about tort reform it was always about Tor reform and about what we do with these types of lawsuits where unfortunate things happen to unlucky people right but if it were about the word boneless I do think The Descent has the better end of the argument here that boneless chicken wings is a different representation than the Wings part or chicken fingers the fact that the meat doesn't come from the wings is pretty irrelevant to one's experience the fact that it's boneless is not irrelevant to one's experience you know this reminds me of a scholar uh 27y old man by the name of Ander Christensen and I don't know if you remember this seminal moment in American history but he went to the Town Council of Lincoln Nebraska and he stood up and he made the following statement Norman Rockwell standing you know portrait of the man standing in the city in the town hall standing Lincoln Nebraska has the opportunity to be a social leader in this country we've been casually ignoring a problem that has gotten so out of control that our children are throwing around names and words without even understanding their true meaning treating things as though they're normal I go into nice family restaurants and I see people throwing this name around and pretending as though everything is just fine I'm talking about boneless chicken wings I propose that we as a city remove thee and this is in the famous YouTube of this laughter starts to interrupt him and he very indignantly says excuse me and then says that we as a city remove the name boneless wings from our menus and our hearts and it says nothing about boneless chicken wings actually comes from the wing of a chicken we would be disgusted if a butcher was mislabeling their cuts of meats but then we go around pretending as though the breast of a chicken is its wing boneless chicken wings are just chicken tenders which are already boneless I don't go to order boneless tacos I don't go and order boneless club sandwiches it's just what's expected our children are raised being afraid of having bones attached to their meat that's where meat comes from it grows on Bones we need to teach them that the wing of a chicken is from a chicken and it's delicious we can call them buffalo style chicken tenders we can call them wet tenders we can call them Saucy nugs or trash we can take these steps and show the country that's where we stand and we understand that we've been living a lie for far too long and we know it because we feel it in our bones put that man on the Ohio Supreme Court 100% 100 that is the hero of the ages that's the hero of our time but David where do you come out on whether one can proceed to a jury trial on the question of the representation of boneless chicken wings not having bones I'm for it it says boneless words mean things Sarah right so you would still have to prove that they were negligent in serving you a bone this isn't the like ipof facto a Bone's there you get your $10 million right but the problem is David and again this gets to my point that this case was never about the word boneless juries tend to pour that and this is a pretty egregious thing to have happened to him it's not like he ate a bone and it was unpleasant he was in the hospital he could have died from you know sepsis um juries tend to think that they don't like that yeah so judges in state courts tend to want to prevent those things from getting to juries because it's pretty unpopular with the people who donate to judges elect judges nominate judges because it hurts businesses yes yeah it it it does hurt businesses but you know this is a kind of case where you would I could easily imagine if you're defending the restaurant you say there is a reasonable standard of boneless care that we have met and there's no evidence that we did not meet this reasonable standard of boneless care and boneless is an aspiration and it can only be an aspiration because the animals come with bones because the animals come with bones and there's no way to completely rid your meat of any bone Trace I think that's true and it's funny because I think if you ordered fish and they said it was you know a boneless salmon filet or something and you found some bones I don't think you'd be like OMG how are their bones in my fish because there's lots of tiny little bones what they're telling you is they're doing their best to remove the bones but of course there's bones eat with care um I also found it a little bit weird because majority at one point said they could have just included something on the menu like a little footnote asteris thing next to the boneless wings that said Bones still may be present or like we've tried our best there are I look at a sign menu and I think a lawyer got to this and if that's all it would have taken to prevent the lawsuit then like what are we doing here because that's not very much at all clearly the guy still would have eaten his chicken in the same way had that been listed on the menu so give me a break if that's all we're arguing over yeah yeah I and you know there's the question of advertisement has always been allowed to have some puffery well you can't write a paragraph for your boneless chicken wings I'm reminded of the movie Elf when uh will frell takes uh what was her name Zoe Zoe Dan Shanel with the character she plays and takes her to get the world's best cup of coffee now you're not gonna file lawsuit if you've if you drink the quote world's best cup of coffee and it's actually kind of from the bottom of the pot and the pot's been sitting out for a while and it's just charred and gross you're they're allow to make that claim they're allowed to make but boneless factual statement it's much more of a factual statement than greatest Wings in Northern Ohio I'm torn it is more of a factual statement but at the same time meat comes from animals with bones so that's kind of on you if you believed that it always was boneless like come on yeah well that's why you're you're going to have a standard of care so over the course common law will create a standard of care and we'll you'll have safe havens and refuges uh and you'll be able to you know meet that standard I have a feeling 70% of the comments are going to be about the boneless wing issue oh absolutely you are too low on that number way too low 90% of the comments on boneless wings well I can tell you 90% of the requests we had for this episode were about boneless wings that's true that's true all right y'all uh next episode as I said we're going to start our August uh law books and I think you're in for a treat for episode one you are in for a treat