2026 Supreme Court Roundup

[00:00:03][music] [music] [music] Heat. Heat. N.

[00:03:47][music] >> [music] [music] [music] [music] [music] >> Okay, I I think we're going to go ahead and uh get get started. Um uh good afternoon everyone. Uh and welcome. Uh I'm Rege Brown, president of the Washington DC Lawyers Chapter of the Federalist Society and early adopter of AI. Uh which I always use for this. Um want to thank you all for joining us for one of our favorite annual traditions, the Supreme Court uh roundup. Uh I'm going to talk about uh the roundup and our guests uh in a moment, but before I do, I wanted to uh recognize a special uh guest. uh the new dean of Scalia Law School, uh Dean Dan Kelly. Dean, welcome. Uh hope to see you here every year, which is terrific. Um the Supreme Court Roundup is always one of our best attended events. Looking around the room, we have judges and practitioners, academics, law clerks, and given the number of identical Navy suits, a remarkable number of summer associates.

[00:06:36]Uh to the summer associates, uh welcome.

[00:06:39]You're about to spend an hour listening to people enthusiastically discuss jurisdiction, standards of review, statutory interpretation. If that sounds like a great way to spend an afternoon, congratulations. You've found your people.

[00:06:54]One of the things the Federal Society has always done well is bring together the lawyers, judges, scholars, and advocates who are actually shaping the legal debates everyone else is talking about. That's why this room is always full after a Supreme Court term like this one. And what a term it was. There were plenty of important decisions, but perhaps the biggest decision and most consequential wasn't in the US reports.

[00:07:21]It was to Nina Totenberg's chagrin that all nine justices are coming back next October.

[00:07:28]So somewhere somehow someone is of course blaming Bedsock. Uh fortunately we have two outstanding guides here today to help us make sense of everything that just happened uh in this term. Jeff Wall is one of the country's premier Supreme Court advocates. He served as acting solicitor general of the United States. He's argued 30 or 31 cases before the Supreme Court and he now chairs uh co-chairs Gibson Dunn's appellet and constitutional law practice. Jeff joins a distinguished list of Gibson Dunn lawyers who've headlined this event. Most recently, Miguel Estrada, and I know it may be hard for all of you to tell the two of them apart. Um, so I went and I asked Paul Clement uh for advice. Paul paused for a minute and then he said, "Well, you know, the big difference between Miguel and Jeff is that Miguel has reached that point in his career where people regularly ask him to explain the Supreme Court. Jeff is still at the point where the Supreme Court keeps asking him to explain his own briefs. Uh we are very proud of both of them and that rich tradition of providing Supreme Court uh advocates for this event. We're equally fortunate to welcome Aaron Holly. Aaron has argued before the Supreme Court, taught constitutional law practice at uh King and Spalding and Kirkland and Ellis and now chairs the Supreme Court and appellet practice at Lex Politica while serving as of council to the Alliance uh defending uh freedom and she has had an incredibly distinguished uh career. Jeff and Aaron also have something else in common. They both clerk for Judge J. Harvey Wilkinson. I'm sure Judge Wilkinson is equally proud of both of them. And if he were here today, he'd probably tell us he doesn't have favorites and then he'd introduce Aaron first.

[00:09:24]So, we're delighted that they're both here for what promises to be an outstanding conversation moderated by Fed socks own Elizabeth Slatterie. Uh so, thank you again for joining us. Uh especially all the summer associates. We hope today's discussion is more memorable than whatever assignment is waiting for you back at the office.

[00:09:41]Please join me in welcoming our distinguished panel.

[00:09:48]>> Thank you. Thank you, Re.

[00:09:51]So, let's start off with a big picture question before getting into some of the specifics of the cases. How would you describe the theme of this concluded term?

[00:10:02]>> Sure. So, first of all, thanks for Fedsock uh for having us. Fedsock has been informative in my career and supportive and and so thankful for that.

[00:10:09]I also am just have to say real quickly that I'm delighted uh to be here with my friend Jeff. Um Jeff uh sort of took me under his wing when I was this scared little associate who had no idea what she was doing. Um and and believed in me. So if all of you out there if you don't remember anything I say remember be a Jeff Wall to someone um because he he's fantastic and thanks Jeff. Uh as far as the themes go, I think there are a couple at the court today or or the last term. Um one of course is uh the separation of powers. If you look across the court's cases, uh, so many of them were not only focused on separation of powers, but written from a separation of powers viewpoint. Um, of course, we'll talk about Slaughter and Cook. Those are obvious examples. The Terraps case, I think, was written from a separation of powers perspective. Um, if you even look at the um, compassionate release cases, the criminal cases, those cases sounded in separation of powers. So, this was a court uh focused on uh delineating those branches that the founders gave us. Um and and I think did did a good job of that. Um the second thing I'll mention is this is a court um that I think is independent. Um I'm sure some of you have listened to to liberal pundits and I was listening to one the other day who's who's well respected, but she described the United States Supreme Court as an existential threat to democracy. I almost laughed, but she got huge applause. Um and it's like have you read any of the decisions lately? Um this is a court who takes this job seriously. Might not always agree with them. Uh but they are taking their job seriously. And I think one myth perhaps or one reason uh a lot of people have this view of the Supreme Court is something uh called the shadow docket or or more appropriately the interim uh or emergency docket. Um Justice Kagan recently testified before Congress um and she said, you know, I'm not sure the term shadow docket is appropriate. Um and and I think she's right. And and I think if you look at the numbers, um the Trump administration did not appeal 110 cases from the district court. They're good lawyers. They picked the ones that were likely to win to go up. That's why the Trump administration has a good record on the shadow docket, not because the Supreme Court is nefarious.

[00:12:18]>> So, Elizabeth, thanks for having us here. You know, [clears throat] we always say it's an honor to do this, but I feel like I really I particularly mean it today because I look around the room, I see the same summer associates, reg many years as a junior lawyer, and it was always a signature event of the summer. Ted Olsson always did the event.

[00:12:36]Doug Cox presided as the president. And I if you'd asked me back then like I would have never dreamed that I would get a chance to like be a part of this conversation, let alone to do it a couple of months after joining the practice that Ted and Doug and so many others built and let alone getting to do it with Aaron who's been a friend for longer than I'm going to admit because it would date both of us and who is one of the most thoughtful advocates in the country I think especially on First Amendment and religious liberty issues like maybe the foremost in the in the country. So I I it's really an honor to be here. Um themes from the term I have said for many years I agree with Aaron.

[00:13:13]This court seems very interested in two things in particular. The first is separation of powers and Aaron is right that is much broader than just a case like Slaughter or Cook. It animates as Aaron said like everything. Think about Cisco. We're not going to imply new causes of action under the ATS. All of these cases or so many of them are informed by this background understanding of what the role of the three branches is in it in each you know for each of those branches and visa v the others and the other seems to be you know you've got the separation of powers cases on the dockets and then the other is what I would say is sort of the reinvigoration of what I call lost rights rights that were either ignored or under enforced across the Warren and the Rinquist courts. Think about the free exercise clause, the second amendment, now the jury trial, right?

[00:13:59]Um, and those have been that's a theme that I think has now persisted for years. I mean, I think you can now say that's something about the Roberts court. What added this term was the president. I don't mean the executive branch and I don't mean the presidency.

[00:14:14]I mean the president.

[00:14:16]He publicly challenged the members of the court to rule for him in particular cases. He criticized them and their families quite harshly when they didn't.

[00:14:27]And he even took the incredibly unusual step of attending argument in the birthright citizenship case. And so it really felt like the president was sort of in these big cases turning it into a referendum on is the court and are my nominees are they like for me or against me? And in the big cases the answer was they were against him.

[00:14:51]So picking up on that, it was an important term for executive power, ultimately a mixed bag for this particular president's policies. So let's unpack some of those. Um Erin, let's start with Slaughter and Cook and uh their implications for the the future of the administrative state.

[00:15:08]>> Sure. So Slaughter was a long time coming. Uh this of course is the case that overruled Humphrey's executive. If you will recall in CIA law, the chief has this footnote in which she basically combines Humphrey's executive to its facts. It says regardless of whether that decision was right when it was decided, certainly uh the FTC does a lot more um than it did now or did back then. Um so it exercises substantial executive power. Well, the lower courts did not get the memo. Um if you look at uh the president uh when he came into office uh fired a number of commissioners from these multi-member boards um the district court uh of the DC district court didn't like that uh reinstated them went up and back went up and back um and finally we get slaughter and the chief says in there you know to whatever is left of slaughter um we overrule it um and this is a really good opinion uh for the separation of powers uh for democracy and the reason being is that the slaughter cases come out of something known as independent agencies and independent agencies were created for the precise purpose of disentangling from politics. The progressive era Woodro Wilson and others thought of politics as being sort of icky. Uh they thought of of we the people as not being as sufficient to govern as expert executives and technocrats. Um and the chief justice says no. Um these agencies need to be accountable. Um, if you look at article two, that's the sort of the the most logical place to put all of these agencies. And because the agencies fall within article two, then they need to be accountable uh to that president.

[00:16:45]The buck stops with the president. Uh, so the court and slaughter said you cannot have uh removal restrictions on these uh commissioners. Um, flip over to Cook. Um, Cook was a much different question. Um, sort of reading the writing on the wall. the Trump administration smartly did not challenge the for cause removal provision there.

[00:17:05]Uh this involved the Federal Reserve and in a case called Will Cox, the Supreme Court had sort of gone out of its way in an order to say, you know, the Fed's different. We're not sure exactly why.

[00:17:15]Um but but it's different. Um and so the Trump administration read those tea leaves uh didn't challenge uh uh the for cause removal protections, but simply said that it had cause to fire Cook based on alleged mortgage fraud. Uh the district court said no, you know, you can't fire her for stuff that went on beforehand, which is a little nutty. Um goes up to the Supreme Court and the Supreme Court wrestles with these issues, ultimately says that that a tweet is not sufficient procedural due process um under this for cause provision. Um so sends it back down for for the president essentially to try again. But in doing so, I think the court does something that's perhaps one of the more unusual moves of the term.

[00:17:54]they actually decided the Federal Reserve question even though it wasn't presented. Um so the court says that the Federal Reserve is different. Uh it's not like the FTC or any other agency. Um and I think one of the most interesting questions is is what that means. Does it mean the current Federal Reserve is fine? um as is doesn't mean despite that it regulates and executes a lot of things are are those fine uh the chief justice in footnote six I think says you know if congress can't add additional powers and justice barrett points out like are the rest grandfathered in without even a discussion of them so so I don't know to be determined >> yeah so Elizabeth I I agree with everything Erin said I would separate out two different things one what is the how is the executive branch structured and two what does it get to do the first of those is largely settled and this has been coming for a long time free enterprise fund cila law kins like at argument I think the chief justice referred to Humphrey's executive as a dried husk of a case like this one was never in any doubt that project isn't fully completed you know uh what will we do if you change the fed's powers what about article one courts they seem to sit somewhat uncomfortably in the constitutional structure since they are called article one courts which would indicate that that something is a little odd right um so I you know I'm not they've bracketed those questions for now so I'm not saying the project is totally done but you know we're pretty close to completion like the president controls the executive branch virtually down the line now I think the interesting questions over the time you all will practice law are like what does the executive branch get to do that's the tariff case that's the federal that's the sending the national guard out in Illinois to, you know, defend the immigration facilities. And there it seems to me that for a long time, uh, legal conservatives and I would say, you know, Justice Kavanaaugh on the court is like this, Justice Alto, Justice Thomas at times have tended toward a very robust conception of executive power.

[00:20:00]Now you see Justice Gorsuch coming in in the concurrence in the tariffs case to sort of say like, look, we got to put punch back in the non-delegation doctrine. This power got handed over to independent agencies, didn't get handed over to the president and a unified executive. And you know, we need to shift some of that power back. And I don't know exactly where that fault line is going to play out, but it seems to me that there is a debate coming among conservatives over how much power should reside in the executive branch and how much should we try to shift back to Congress and force Congress to step up and be a more active branch so that we are not always looking to the executive in order to create the policy of the of the day. And that seems like a a a newish or maybe an old that's new again strand in conservative thought that is now like reemerging. All right, we've settled the lines across the branches.

[00:20:56]Now, what about the allocation of power among them? And do we as a court have a role to play in trying to move some of that power around? And I suspect if push comes to shove in the right kinds of cases, there will be a real difference of opinion among that between some of the more pragmatic, executiveinced conservatives and some of the more formalist historically inclined conservatives.

[00:21:22]>> Could you um talk a little bit more about, you know, we know the outcome in Trumpy Barbara, the birthright citizenship case. We know the outcome in Learning Resources, the tariff case. Um but that's not the end of the story. We know that, you know, new tariffs are coming out. Uh, you know, I don't think the debate over the citizenship question is done. So, what what implications do you think any of the decisions in those two cases may have um for future presidential actions?

[00:21:51]>> Well, I mean, the interesting thing is I I don't it does seem to me like the debate over the citizenship question is done, right? if they had resolved it on the narrow >> Senator Schmidt that >> I I mean I well I mean I he may well know something I don't but I the the court could have decided it on a the narrow statutory ground and I I admit I called this one wrong like I thought that would be pretty attractive to the court right now and and not have to decide the broader constitutional question and they reached out and decided it and and settled it. Um, and so I agree with you on tariffs, but many of the tariffs that have come down are narrower. They're more timelmited. I think the questions are going to be closer, harder. The administration will have better arguments. So, you know, again, what does it mean for executive power? I I you know I'm I think it depends on whether this Justice Gorsuch's concurrence in the tariff case starts to get a foothold >> because that's the first time that I can think in a while where a conservative has really like written a very forceful opinion like urging limits on uh executive power and he wants to do it by reviving the non-delegation doctrine.

[00:23:05]But the the point ultimately whatever the the tool it's still about cabineting the executive. Will that get traction? I don't know. I mean right now it's it's one but Justice Thomas sat in the wilderness for a long time on many of these things too. So >> he's got friends now.

[00:23:23]>> He does. I mean it's I I mean he's lots of friends. Uh so I you know we'll see.

[00:23:29]I don't know. I'm curious for Erin's views on it.

[00:23:31]>> Yeah. Yeah. I I agree with what Jeff said and in both of those cases, Barbara and Learning Resources, the court, you know, sort of took the bull by the horns. They didn't take the, you know, in some ways easy statutory out. Um, and I think that says that at least the court wants to be done. Um, whether they are or not, I think we'll see.

[00:23:48]>> Yeah. So, sticking with, uh, learning resources, can we talk a little bit about where does the major questions doctrine stand? There are different flavors of it from uh, a variety of justices. So, talk about some of those fault lines.

[00:24:00]>> Sure. So just as again Gorsuch's concurrence um in learning resources is fascinating. I think it's twice as long as the majority opinion. Um and he takes the opportunity to sort of pick apart everyone else's view of the major questions doctrine. Um and in doing so he he really sort of picks the fight with Justice Barrett even though Justice Barrett joined his opinion um and uh in that case and what he says you know Justice Barrett is wrong that uh the major questions doctrine is just an ordinary tool of statutory interpretation. He he dings her for using the term common sense. Um instead, Justice Gorsuch would take the position that it is a substantive uh cannon reinforcing those separation of powers principles that we talked about. Um I I would probably he hasn't said so in so many words, but I probably put the chief justice uh in that uh category as well.

[00:24:46]If you think back to King versus Burwell, which was the case that actually reinvigorated this major questions doctrine, I think that came out of the separation of powers concerns. uh you have the three dissenters who say, "Oh, no. This is regulation. It can't possibly mean tariffs in anyone's in anyone's view."

[00:25:03]You know, that's just absurd. So, so we don't need the major questions doctrine.

[00:25:07]Um Justice Gors just makes a little bit of uh has has some fun uh at the expense of of that line of reasoning. Um and then he talks um about Justice Thomas and Justice Thomas again writes a very interesting opinion in which he distinguishes between core executive powers and those sorts of powers that go to sort of benefits. and he says it's only when we're talking about core executive powers that the major questions doctrine comes into play. Um when not then um then Congress gets a lot more difference.

[00:25:35]>> You mentioned King V. Burwell and uh its relevance to you know the slow roll out of the major questions doctrine. I like to think of it as it was the elephants and mouse holes doctrine at that point.

[00:25:46]>> Um >> so Jeff you know non- delegation near and dear to my heart. uh the revival some of us have been hoping for. Is it officially dead?

[00:25:57]>> I just feel bad you keep asking me these questions and in public [laughter] and and I keep breaking your heart and I don't want to. Uh so I'll put it like this. Uh I think that the drive to revive the non-delegation doctrine has been sapped in part by two developments.

[00:26:17]One is the rise of the major questions doctrine because if the question is major then the statute has to be clear and the court seems prepared to say that will rarely be the case which means then that the you know you're not going to get to do the thing you wanted to do. So the non-delegation doctrine is going to most come into play then in some category of cases where it's not a major question but you haven't reached the kind of details that we all agree Congress should be able to hand over to the executive and I just don't know how much of a drive there is to apply the non-delegation doctrine in that middle category of cases like however large it is once you've lpped off the really important ones at the top that you created a different doctrine to to deal with and I also wonder a little bit kind of going back to the the Gorsuch concurrence in the tariff case like you know once you've gotten the unitary executive right and the power is no longer sitting with independent agencies which was always a huge problem for many of us but agencies that are now and have to be responsive to the president are you as troubled by the delegation and I just I haven't seen evidence yet that the conservatives beyond Justice Gorsuch and probably Justice Thomas are as worried about that. And they had a chance in Gundy, they passed. They had a chance in Consumer's Research, they passed. And I look, Morgan Ratner and I wrote a brief in Consumers Research. And I took my best stab at trying to articulate a test for the non-delegation doctrine because the complaint has always been that it's not administerable. And we spent a lot of time, and that was like my best effort to say, "Here's how I would do it if I were a judge. Here's how I would operationalize it." Um, and it got precisely zero sites, zero mentions, and it sits in like a dust bin of Supreme Court briefs. So, you know, I I um I understand the the drive, but I I'm just I'm not um I'm not seeing the evidence yet, and I tried and nobody took me up on it.

[00:28:19]>> Any comments? So, so yeah, I agree with Jeff and especially the major questions doctrine I think is relieving a lot of the pressure um on the non-legation doctrine. Um and as Jeff mentioned, I think we have justices probably justices Kavanaaugh and Barrett. If you look at Barrett's concurrence in Fulton who are worried about how to operationalize these sorts of of principles. Um so hopefully not dead. Um you know the court did say it has to be proportionate. So so maybe there's there's some room to say you know what does that mean? Maybe the lower courts are are not requiring anything probably still. Um so so maybe you can can build the case law there. Um but but I do worry that the court as a whole is not as interested as perhaps it should be.

[00:29:02]>> Uh so Erin, sticking with you, what do you think this term's decisions can tell us about how the court thinks about narrowing versus overruling cases? You know, Humphre is a great example of the we're going to chip away over time, but there have been other decisions where they just rip the band-aid off early.

[00:29:18]>> Yeah, I think this really was a go big or go home court uh this term, which is kind of funny. Um because the chief, I believe, was in the majority 95% of the cases. Um and yet the chief has has often been criticized for being sort of an incrementalist um for for judicial restraint and those sorts of things. But that's not what we saw from the court this term. You had Humphre um was expressly overruled. Colorado 2 and the NRSC case was expressly overruled. The court entirely reached out and decided the constitutional issue in Cook and sort of a a strange uh maneuver. Um you had the court deciding the constitutional issues in Barbara um and not taking it out in learning resources.

[00:29:58]>> Any thoughts?

[00:29:59]>> I just I think it is certainly true that they have reached out to decide things this term and been more aggressive in a number of the cases. Cook's an example.

[00:30:10]Barbara's an example than I would have thought. I think if you take a step back and you look at the big picture though and you're looking at like what cases are they overruling. It is a court that it's it's not mutually exclusive like we narrow or we overrule. They narrow and then they overrule. Right? By the time we got done with, as I said, free enterprise fund and CEO law like Humphrey's executive was done in the campaign finance space, they've broadcast that like if you're going to put forward an interest beyond quid proquo corruption, boy, you're going to start to struggle. So, was it a shock that they struck down the coordinated expenditures? No, it wasn't like much of a surprise at all. Was Cala a surprise on section two of the Voting Rights Act?

[00:30:50]Not if you're paying really close attention because they had already done something very similar with section two with respect to vote denial claims in Bronovich. So now you have vote dilution claims. Okay, they took roughly the same path. So it's a little different doctrinally, but gets you pretty much the same place. So they they like to broadcast and narrow and then overrule.

[00:31:12]So I don't know. I don't think most of these things like you know sort of come as an avulsive change or out of the the complete blue. I think you know for we all saw these coming.

[00:31:24]>> So Jeeoff there were two cases this term implicating the second amendment. Uh so tell us how is the history and tradition test? How's it played out from Breuan to Wolford and Hammani this term?

[00:31:36]>> The second amendment is alive and well.

[00:31:37]Um, and I think what made this turn like now, all right, we know we've committed to reinvigorating the Second Amendment.

[00:31:47]Okay, we've gotten like we've sort of said that we've got brewing on the books. We've had our thousand law review articles on how theoretically wrong that is. And now we're going to operationalize it and explain how we're making that consistent with doctrine in other areas. And that was this term like I now as an advocate have a much better sense of where they how they approach the second second amendment. They've got now this pretty simple two-step thing.

[00:32:15]All right. First step, does the law infringe the right of the people to keep and bear arms? Okay. If so, implicates the second amendment presumptively unconstitutional unless at step two government can bear the burden of justifying whatever the restriction of the the law imposes on your second amendment right. Got it. Okay. Burdens on the government. How is it going to satisfy that burden? History and tradition. What kind of history and tradition counts? Well, those are the two cases this term, right? So, in one of them, it's the uh the federal law that uh dispossesses firearms for those with uh controlled substances convictions. And the government tried to justify this by pointing to like the habitual drunkard laws. And the court said 90 no. Like those laws were about people who were practically incapacitated as a general matter because they were across the board drunks. All right. That is not the same as somebody who like, you know, smokes a little weed from time to time.

[00:33:23]Right now, we're not saying the court said like we're not talking about particular drugs and we're not talking about particular circumstances. There could be lots of instances where the government could come in and and you know, but something that applies across the board to any controlled substance, no matter what the drug, no matter how much the use, and no matter whether that use is tied to a greater um capacity toward violence, it's not enough. It's not enough of a historical analogy. So, we're now starting to get a sense for what the fit is. We now also know how you get a unanimous court, right? You got to have something for everybody. So, guns and pot and you could get to 90.

[00:34:05]All right. [laughter] >> Then you get Walford out of Hawaii.

[00:34:10]That's a state law that says you got to affirmatively get the consent of a property owner if you want to carry a weapon. Okay? That makes it practically impossible to carry the weapon. You cannot everywhere you go get the affirmative consent. And Hawaii knows that. And you know, they pointed, Hawaii pointed in the Maine, setting aside one, you know, um, discriminatory state law.

[00:34:32]Uh, they pointed in the main to anti- poaching laws. And the court said, "No, no, no. Those laws were much narrower.

[00:34:38]Land being used for a specific purpose.

[00:34:41]They didn't flip the default rule for everything. It was just if you were going to walk on hunting grounds and you wanted to carry a weapon, fine. You got to ask the owner." So, we're now getting a better sense, right? the historic like if you want to try to say you've got a historical analog it's got to apply across a broad number of jurisdictions has to be similar in purpose to the kind of restriction you want at the federal level and it's got to kind of pass the like smell test on you know come on do we really think that being a habitual drunk is the same as you know smoking a joint and all of them for different reasons and on narrower and broader grounds because they wrote a lot of opinions on it but like they all had the reaction of no no so I I think we're like we're now getting in like the real, you know, oper operationalization phase of the Second Amendment. And I think we're like starting to figure out how these state laws are are going to cash out. And um no surprise, like if you're a state like Hawaii and you're trying to pass a state law that effectively flips the Second Amendment result on its head, that's no good.

[00:35:44]>> So it sounds like we no longer have the Chevron twostep, but now we have the Bruin twostep. I'm a twostep.

[00:35:51]>> Yeah. So maybe law students will be making, you know, YouTube dance videos out of those or Tik Tok, >> but there's no step zero. There's no step three. [laughter] I mean, I'm sure law professors will come up with some, but like they've been pretty clear. This is this is simple.

[00:36:03]Like, does it keep you from like does it restrict your ability to keep and bear an arm? Okay, we're in Second Amendment territory now. government, show me something that provides a historical analogy that's a pretty rough and good fit for what it is you're trying to do.

[00:36:20]Otherwise, like, you know, it's not going to work. And so, it's much more approaching the sort of first amendment analysis. Are you limiting speech, press, something like that? Okay, burdens on the government. We can debate tiers of scrutiny, but like justify the restriction for me. And we're like we're bringing that to the second amendment but without all the tears and the um the complications.

[00:36:43]>> It's no longer the the orphaned uh amendment. No, as your former boss used to say. Um Erin, any thoughts on Second Amendment cases?

[00:36:51]>> So, agree with that. A couple coming up that'll be interesting. Um the court of course granted the assault weapons ban.

[00:36:56]Um there was a recent Ninth Circuit case that was considering whether a certain type of knife uh was an armed. So, so yeah, the court will have plenty of opportunities to expand even further.

[00:37:07]>> So, Erin, there are two cases implicating hot button social issues uh this term. Uh, one led to an 8-1 decision in trials and a unanimous decision, at least on the statutory question in West Virginia versus BPJ.

[00:37:22]So, tell us about these two cases and how did the court find this common ground.

[00:37:27]>> Sure. So, in the child's case, this involved a Colorado censorship law. Um, and in contrast to to our national legislature that we could wish would do more. Um, I think a lot of us wished Colorado would do less. Um, and certainly this was one case of that.

[00:37:43]What the law said is if you were a therapist who only used talk therapy, no sort of conduct involved, that you could counsel a minor who was confused about their gender, you could encourage that minor to be transgender, to to go all the way to socially transition to get drugs and puberty blockers and those sorts of things. But you could not do the reverse. You could not say, you know, have you thought about, you know, becoming comfortable in your body? Even though the research shows that if a minor is not socially transitioned, the vast majority of them do become comfortable in their own bodies. Uh so this went up to the Supreme Court. Um Colorado took sort of a narrowing argument, but but I think the the real sort of writing on the wall was during oral argument when Justice Otomayer was really pressing Colorado's council to say that they wouldn't enforce it against pure speech of the type Kaylee Child did. And Colorado was adamant.

[00:38:37]Absolutely not. we're going to go after her. And so, Justice Sotomire sort of leans in the microphone and goes, "Well, there goes standing." Um, and with the result, you get an 8-1 decision. Uh, only Justice Jackson desents. Um, and, uh, forgive me, but her descent is a little chilling. Um, it would live, it would be a world in which, um, if you are a professional engaged in speech, uh, as lawyers, we do that all the time.

[00:39:02]Um, then your speech is subject to regulation. The government can compel you to say stuff. they can um tell you not to say things um and you would have to abide with it. So I think that's why it's 81. Um no one um or [snorts] on on the majority was in favor of that sort of viewpoint based uh speech compulsion.

[00:39:18]Um, ADF also got to help with the, uh, BPJ and HECOX cases, uh, which came out, I think somewhat surprisingly, 90 on the Title N question. And later on, I was sort of kicking myself, um, because the court telegraphed this um, in Department of Education versus Louisiana. Um, this was a state request to the Biden administration's Title N rules that actually required states to let um, boys uh, participate in girls sports. And the Supreme Court denied a stay request from the uh Biden administration. And in doing so, uh the opinion the the procurium order notes that all nine justices agreed as to enjoining that particular provision that would require girls and boys to play together. Um they disagreed on, you know, how broad the injunction was otherwise. So So the writing was on the wall, but but at least I didn't really think the court meant it. Um but they did. Um and and I think for for obvious reasons um the court talks about how uh in 1972 uh biolog sex meant biological sex um when it got to the Supreme Court plaintiffs didn't even really challenge that. Um the court points to the Javitz amendments in 1975 which allowed sex separated sports sort of call it Congress acknowledging this sort of thing. Um so you get 90 on the statutory question. Uh on the equal protection question, um the dissenters would have remanded uh to the lower courts to determine whether this particular individual um possess the sort of physical characteristics that generally speaking um advantage boys in sports. Um but the majority wisely rejected that one that turns um intermediate scrutiny and district scrutiny. uh there really I don't think is such a thing as an as applied equal protection challenge in the sex space. Um and second, as the court points out, what would that possibly look like? Um and and for an example of that, all we need to do is look at the fourth circuit's opinion.

[00:41:22]And the fourth circuit actually says things like we should be able to tell who can compete in girls sports by looking at things like hip width and body fat percentage. Um I don't know about you, but but that's horrifying.

[00:41:34][laughter] I don't want anyone knowing my hip width. Um, and uh, so so I would imagine girls in West Virginia don't either.

[00:41:40]>> Yeah.

[00:41:42]>> I don't know. I I don't want anybody to know my body fat percentage. So I uh, a hipwidth I think I'm okay with, but I [laughter] uh, you know, I think the only I look I agree with Aaron, right? And ch child should not be a hard case, right?

[00:41:57]Justices Kagan and Sodtomoy write separately to say, "Hey, look, you know, we're on board, but just so you know, that also means states can't have laws that prevent people from counseling about gender affirming care, like the viewpoint discrimination goes both ways." That seems absolutely right to me. And uh the surprise was that like one of the justices thought that apparently you could have state laws on both sides of that question. Um, the interesting thing to me on the transgender [snorts] cases is just the the next round is, okay, these were states that were prohibiting biological males from playing on on girls sports teams. What about the blue state laws that allow the biological males to play on the teams? And, you know, the Justice Department is arguing that those laws are are are no good. Um, you I would have thought based on the court's rationale that the constitution didn't have anything to say about this and neither does Title 9, but um, you know, we'll see how those uh, how those cases come out. If I had to bet, this seems to me like the sort of issue that's going to get left to red states and and blue states, but you know, maybe I'm maybe I'm wrong about that.

[00:43:11]Maybe your bet will hit the prediction markets. So, um Jeff, you mentioned the Cala decision a little while ago. I want to talk a little bit more about it. Uh so, Cala extends the colorblindness principle from students for fair admissions from college admissions to redistricting. Um we're already seeing this spill over into employment discrimination with the recent OLC memo on Title 7. So, what's the future of disperate impact liability? So, it's a hugely important case if you're not following it. And I'm not a voting rights lawyer, but I think it's a siminal case for those who are. So, I'll take 30 seconds to tell you about the facts because they matter. Louisiana draws up a map and creates one majority minority district that is a majority composed mostly of black voters. And they get sued in a case called Robinson and the map gets blocked. So Louisiana goes back, draws a new map, and now it has two majority minority districts.

[00:44:07]They get sued from the other side, and that map gets blocked. And Louisiana says, "We're going to the Supreme Court."

[00:44:15]Like, I what do you what do you expect a state to do? And so the first argument that's all this, you know, it's in the court and there's all this argument about like, well, did Louisiana do it because they were trying to comply with the decision in Robinson when they drew the second district or were they taking into account race? And the answer of course is both. They took into account race in order to draw a second district to comply with the earlier court decision. And the court didn't really know what to do with that. So it set it for reargument and asked a much more fundamental and serious question. What are the instances in which race can be a compelling interest that can allow a state to draw districts on the basis of race? And what the court ends up saying is you can use race in order to comply with the Voting Rights Act if you properly understand section two of the Voting Rights Act. And that turns out to be a really big qualifier. And what the court goes on to say is, "We've always said if you're a plaintiff and you want to make out a section two claim, you have to separate out race from the traditional redistricting criteria. You have to show that what the state was doing was disadvantaging voters on account of their race or denying them more of an opportunity to elect candidates of their choice and not doing it for things like compactness or cohesiveness or all the other reasons people draw districts on a map. But here's the thing. After Rucho, states can partisan gerrymander.

[00:45:41]So if that is a permissible trai redistricting criterion, what are you going to do with that in the in the mix?

[00:45:48]And what the court says is no, that's like everything else. You have to show that that wasn't why the state drew the map. So, if the state comes in and says, "We didn't draw it to disadvantaged minorities, we drew it to disadvantaged Democrats, you've got to come forward with a map that's equally good for Republicans and even better for minority voters." And Justice Kagan in dcent, not a respectfully descent, I think only this the only other time she's I think >> Yeah. she she says, "Well, wait a minute. Section two is a dead letter because given the correlation between race and party affiliation in many of these districts, you're never going to be able to show that the state wasn't doing it to disadvantage Democrats or Republicans. And the court was basically like, well, you know, I mean, I what?

[00:46:37]Okay. And so, you can still have claims in primaries, but it's going to be much harder to have section two claims in uh in a general election. And then your question uh Elizabeth is okay then what does that mean for uh for title 7 right supreme court said in Griggs you could be liable under title 7 if it if your employment practice has a racially disperate impact and you don't have a sufficient business necessity. Justice Scalia desents in reachi and says wait a minute you can have employers who are not intentionally discriminating but they have a practice. It has a racially disperate impact and if you if they can't sufficiently justify it, you put them on the hook. That's at odds with the equal protection guarantee. Like there was no intentional discrimination.

[00:47:29]And Cala is it's it's picking up on exactly that. And so now we have an opinion from OLC saying, "Wait a minute.

[00:47:37]Cala says it you have to have a strong inference of racial discrimination." So if you're imposing disperate impact liability where there's a strong inference of racial discrimination, okay, but once you move beyond that, you are giving rise to real constitutional concerns and you have to read title 7 to avoid that constitutional concern. So you have got to narrow, I think, come close to eliminating disperate impact liability under title 7. So that's like a very open question, but I think that's the that's the next fight. And it seems to me post Calala there's a pretty good argument that Scalia had it right in Richi.

[00:48:20]>> Anything to follow up on that?

[00:48:22]>> I think that's right. And sort of in the in the followup, you saw cases come up from Alabama and other cases um involving similar maps that the court that these states were asking uh to be put in place. And the court was clear like states are in charge of their maps.

[00:48:36]If there's not a racial like a strong inference of racial discrimination, um then the state gets to do it. Um in one of the really interesting cases, the the Alabama case, the court had actually drawn the map. And so then after Clay, it dinged the state for not putting in place its own map. Like why do you think a district court gets to define states voting districts? But that district court did.

[00:48:57]>> Um so this is for either of you. Uh we've heard scholars on the left um for a number of years, but I've seen an uptick um arguing that uh the term can be explained by a procorporation bent on the court. What do you make of that? I >> I just don't see that, especially this term. Um if you look at the number of briefs filed by the Chamber of Commerce, um the the numbers are actually one against um they they won one less than than uh or sorry they they lost in one more case than they won. Um, and I think maybe where that's coming from, this idea, um, is the fact that the court has been serious about putting limits on the administrative state. And perhaps there's this assumption that putting limits on the administrative state, um, is pro business. Um, it it often can be.

[00:49:46]Um, but but if you think about the EPA, um, different things, um, it's not clear to me that that actually maps on in practice. So, so I don't I don't understand that criticism of the court, um, especially in this term. And a lot of times the cases are pitting two corporations against each other. So it's like, well, they're pro, but they're also against. So >> anything on that, Jeeoff?

[00:50:07]>> I I'm I'm with Aaron. I just don't see the evidence for it. Like >> they digged the Nvidia and the Facebook cases a couple terms ago.

[00:50:14]>> This term, major antitrust case, >> major class action case, major securities case. Like that's not that used to be the meat and potatoes of their docket. It's not as much what they're interested in anymore. In the AT&T and Verizon cases, they neutered the FCC, but they did not go as far as the companies wanted. Sure, they ruled for Cisco, but that's a project they've had for a long time on not implying causes of action. This wasn't like they were trying to, you know, kind of rule for corporate America. So, and then, you know, there's the the shrimp tet on the the SEC discordment went for the SEC and against the company. So, I just don't I I I do I do not think this is a court that you can say is like reliably pro or anti- businessiness. It cares about other things and sometimes those interests align with uh where a company is in a particular case, but that's not evidence that the court is sort of pro or anti-corporation or business.

[00:51:15]>> What uh missed opportunities were there this term?

[00:51:19]>> Oh, goodness. Um, one I think was like a a huge uh sort of unexpected opportunity uh was the Mirabelli case. Um, so off of the interim or emergency docket um the Supreme Court granted Mirabelli um and decided it um holding that parents have parental rights and that a school district cannot secretly transition a child. Um, in light of that though, there were two pending petitions um that raised the issue and the court not only didn't grant those, but didn't GVR them.

[00:51:53]Um, so so maybe because it wasn't sure about the presidential effect of an interim order. I'm not sure why. I'd be curious if if Jess has any theories. Um, but I think that was a real missed opportunity because these school districts are sort of dug in on this issue and I think the court will need to say more um about it before they take the court seriously.

[00:52:13]>> I mean, one of the things and I have been talking about today, right, is there weren't a ton of missed opportunities. Like they set Cala for reargument and a very aggressive holding on section two. They reached out in Cook on the Federal Reserve. They reached out in Barbara on the constitutional question. Like I don't know that we had a lot. I mean, I think if I had to name one, they had a case called HAM that they didn't take, which was an eth amendment Atkins challenge. I think, you know, the ETH amendment death penalty juristprudence is a place where uh we could stand some cleanup after, you know, sort of the 2000s and 2010s and and some of what the Ranquist Court and the early Roberts Court did. So, I I think that's one that I I I think that's an area where they could they could um they could take a couple of cases, but you know, as Aaron says, they granted the AR rifle case for next term. That was probably the biggest petition that was out there or set of petitions. So, I don't um I don't know. This is not a court not in the last year, they have not shied away from from the big questions.

[00:53:16]>> So, this is for either of you, both of you. Um, what institutional or political developments outside of the court's docket do you think are most likely to affect the court in the coming years?

[00:53:27]This could be cameras in the courtroom, court packing, changes to oral argument.

[00:53:33]>> So, I think of those um probably changes to oral argument. I think a number of the justices have expressed some some displeasure about the length of arguments. Um, so so could but but I don't know that there's um a view. You like the super sized argument?

[00:53:49]>> No. No. Especially if there's two of them stacked together. Um, but I don't know whether there's interest in changing the format. So, it's hard for me to see how you can change the length without changing the format.

[00:54:00]>> I don't know what you do. Yeah.

[00:54:01]>> It's like every time I'm on a conference call and I want somebody to stop talking. Like there's no easy way to like get people to just talk less when you would like them to. So I I mean I think some of them have I mean several of them have said publicly they think some of the arguments are too long but I think they also many of them like the newer format and I admit I like the newer format. I like the fact that Justice Thomas talks. I like the fact that they don't feel like they're totally jammed in and they have to talk over each other and cut each other off.

[00:54:30]They're going to have time to ask questions. It makes it harder in some ways as an advocate because you can't just sort of offer up a word salad and wait for somebody to interrupt and take it in another direction. Like if Justice Alo or Justice Kagan gets a hold of you, like they can, you know, they can shake you around pretty good. Um, and so, but I like it. I think it's but it it has gotten a little too long in some cases and I don't know if they know what to do about it. I think outside the court, I mean, look, the two big things. One is there's going to continue to be pressure on whether you have an enforcement mechanism for their code of conduct. And you saw just last week Justice Kagan saying she thinks there should be and Justice Barrett hedged and said she's not sure. I think it's extraordinarily difficult to figure out how you put in place an enforcement mechanism within Article 3 that doesn't create just as many problems as it's designed to to resolve. Um, and so, and I think the other thing is the leaks. I mean, it's shocking. And like to those of us who clerked back in the day, I mean, it was just like unfathomable and it's just getting worse and worse and worse. I mean, at first it seemed like it'd be from law clerks and then there were articles about things that happened in conference where only the nine justices are. So, it sure seems like maybe it's coming from some of the justices. And now this term like an article that has memos between the justices like internal >> written product memo and and you just have to wonder how it's affecting deliberations and it's affecting relationships and and uh it's so unfortunate and I don't um I don't know I I it's like the or I don't know what you do about it. um you know it's if if the shared ethic breaks down I'm not sure like what the enforcement mechanism is. I don't know what it looks like and it's but it's I I think it's sad.

[00:56:27]>> Absolutely. And the the second leak that that Jeff mentioned um came in response to I think it was sort of a blog post, Substack post had sort of wondered what went on um during the Clinton Power Plan discussions and lo and behold a couple weeks later the New York Times gets the whole packet which is just crazy.

[00:56:44]>> Yeah. Any thoughts on cameras in the courtroom? Would you like to have cameras when you're arguing?

[00:56:51]>> Yeah, [laughter] I I with Jeff I think it would would uh make make the media circus worse. Yeah, you know, I think on the one hand the the live streaming of the audio has been a really wonderful thing for people to hear the justices in action. You don't have to wait, you know, I remember back in the day it was you had to wait till the end of the term to get all the audio and then it became, you know, the end of the sitting and then the end of the week and now it's it's live. So, I think that has been wonderful. But I some of the concerns people have had about um arguing against cameras I think we we've seen borne out with the the live stream of the audio. I think if any I think they've had a question internally about like should you continue to live stream the audio or just make it available like same day or very quickly. I don't know whether that will change or not but I think making the audio available so quickly and you know live right now I think it takes a lot of the pressure off the cameras thing and it it like the benefits get a lot smaller but you're still left with what a lot of us worry are pretty substantial >> costs if you know um advocates are you know sort of worried about you know video clips on the nightly news and that sort of stuff. So, I'm in the I'm in the skeptics camp that this is a this is a good idea, and I don't see a lot of support for it over at the court. So far, it doesn't seem like that's where they want to go. I think the the the code of conduct thing seems to be a much more pressing >> issue as far as I can tell.

[00:58:19]>> Do you have suggestions for them, what they should put in it, how they should enforce it? I I I don't like I you know the the suggestions that have been floated are like a panel of judges inside article 3. Maybe it's retired judges and all the rest, but um I I as Justice Barrett said last week at the hearing, like there are serious questions then about like how you constitute the panel and are they releasing written decisions and all the rest and I don't know. I I think uh I've been doing this all the you know I have in 20 plus years I have seen no evidence that a single Supreme Court justice has ever been the slightest bit swayed by anything that I would consider an unethical or improper consideration.

[00:59:03]And so I understand the desire to give public confidence to the court, but I think we need to be careful that we don't create a more serious problem, which is that we put in place some system that people then try to game to get justices off of particular cases or to embarrass them or to make allegations. And what does that look like? And I I I just um I think we we ought to think really hard about it because I understand we want people to be confident in the court, but I would say at the same time there is no underlying problem. These nine people are trying to reach decisions based on methodological commitments and I have never seen evidence of anything else in any way.

[00:59:47]>> So like what are we trying to solve for?

[00:59:50]and and the fix would, you know, quite likely be unconstitutional. Um, it seems to be directly targeted at the court's independence. Um, so, you know, maybe if you have it in the article 3 branch, maybe it's constitutional, but I don't know.

[01:00:04]>> Yeah, it seems like it's the the media and the way the court's covered that needs to be fixed more so than the the court's uh code of conduct. Um, well, I want to make sure we have time for audience questions. So, please, if you have a question, there are two microphones, so feel free to line up and we'll try to get a couple of those in.

[01:00:21]Um, while you're running to the microphone, um, last question for me.

[01:00:27]Who was the biggest winner of the term?

[01:00:30]>> Oh, goodness. Um, maybe like the Reagan Justice Department, right? Um, because >> Oh, that's a great answer. [laughter] >> Judge Wilkins would be happy.

[01:00:38]>> Yes. Yes. Um and if if you look at the cases and the way they came out, I think a lot of those projects that began as memos um you now see as Supreme Court decisions, which is kind of cool.

[01:00:50]>> Yeah.

[01:00:52]>> Uh I think sort of biggest one uh the Chief Justice um >> you know he's in the majority in 95% of the cases. They navigate the waters with the um the president as Erin says they've you know they they achieve what you know long-held goals on slaughter and and cook. So I think you know sort of profession in terms of the docket the law I would say the the chief had an excellent term. I think a loser in these more public facing senses, right? The justices, there was some public friction between Justices Sotomayor, Justice Kavanaaugh, the chief obviously hates things like that. The leak, I mean, I I'm sure these things drive him nuts given his his care for the court and what that does to it as an institution.

[01:01:42]So on the law, the chief, but there's still this sense in which the body is being uh being weakened.

[01:01:52]All right, let's take a question from the audience.

[01:01:55]>> Thanks so much. Thank you for your time today. Curious to hear thoughts on Trump versus Barbara. There's a sense among a great deal of conservatives and legal conservatives that that decision was not just erroneous but egregious, even perverse, and that it did damage uh to the original public meaning of the 14th amendment and to the heart of what it means to be an American and what it means to be a nation. Some have gone so far as to compare it to this generation's Row versus Wade. So I'd love to hear your thoughts on where we go from here and what role questions of nationhood and sovereignty will play in the next phase of the movement.

[01:02:35]>> Yeah.

[01:02:37]So it's certainly true that the court did not take the statutory path. Um and I think Justice Thomas puts forward, you know, evidence of original intent. Um, to me the case is closer than a Row versus Wade. So I don't find that analogy apt. Um, but I understand the sort of sense that this is our country we're talking about. We want people who um want to be citizens here.

[01:03:10]That that's what the framers and founders um were going for. Um so we'll see what if anything Congress does.

[01:03:20]I guess I'd say two things. The first is sort of underscore what Aaron said, which is I understand very reasonable disagreements over the outcome of the case. But if you read the opinions, they are very historically grounded. They are going through the same sources and trying to figure out like what were terms like doicile or inhabitant at the time. How were those concepts understood? And so I guess I don't have the reaction that it's like an attack on original public meaning. If anything to me, it's like the ascendancy of that project within legal conservatism. Like everybody's arguing about what these terms meant at the time. We're not fighting over the premise. We're fighting over the application. And it seems to I don't know. It's hard for me to read those opinions and have the reaction that like this belongs in the camp of, you know, I've seen comparisons to Dread Scott. I've seen comparisons to to Row and I I don't um it's hard this seems to me more like a reasonable good faith disagreement and it's hard to see somebody like a Justice Barrett on on you know the the majority side of it and think that like you know we're not this is we've somehow like you know jumped the tracks on on originalism. I guess the second thing I'd say though is I do think it's a good example of how like woeful most legal commentary is on the court because not a term goes by where you know I don't read a thousand articles saying that the tough cases at the court whether it's voting rights act or birthright or tariffs or what have you are are easy and should come out a particular way and you know I I you you see the the quotes from everyone from Nina Totenberg to judge Ludig reasonable me.

[01:05:08]>> Well, I [laughter] you know I >> I was just gesturing to that side of the room. Uh you know I I I like you know I remember on the elector case out of Colorado when Judge Ludy said like no reasonable jurist could possibly come out that way and then the court was 90 that way. And so [laughter] I, you know, I I think this is another example of like the we are not like taking seriously the arguments in these cases and putting them in front of people in like a real good faith way so that they can understand how hard and how close some of these cases are. And the vast bulk of legal commentary within and without the academy is just uh it is like you know an order of magnitude away from where the justices are.

[01:06:02]>> Roger Severino with the Heritage Foundation.

[01:06:06]Close to that issue is this polarization.

[01:06:10]We saw it strikingly when Justice Barrett was testifying before Congress that she had to tell her kids about the flack jacket or armor suit of vest that she has to wear um because of the actual threats of violence. You had Justice Kavanaaugh person coming to his house with plans to assassinate him all in the context of the DOS leak etc. How is that affecting the court do you think? Would it have any impact? What is the responsibility for either law enforcement, local or federal, to respond to this? Because it it seems as if we're in a new phase given the context of, for example, the assassination attempt on the president, Charlie Kirk, Kavanaaugh, and we've crossed a a line that I think has going to have profound consequences if especially if it's successful someday.

[01:07:07]I totally agree, Roger. I mean, it it is uh I would say leaks are second and a distant second behind security. It's the biggest change in the like last 101 15 years at the court. They have become more public personalities. Part of that is the rise of the internet. Part of it is confirmation hearings. um some of which have become so um high-profile and sensationalist in in nature that you know there are a lot of nuts out there and it brings them out of the woodwork and they can now try to find people's homes and dox them and that sort of thing. It is scary and it's real. Like, you know, there's this famous story about like, you know, after Justice Thomas got on the court, he and Justice Scalia were going to mass and as they're walking back, somebody stops them and recognizes Justice Thomas and hands Justice Scalia his his camera and says, "Hey buddy, can you take a picture of me with the justice?" And Justice Scalia always used to love to tell that story.

[01:08:08]They were anonymous for the most part.

[01:08:10]They're not anymore. And it's it is it is really scary. I mean, you're a parent, you have kids, like and um I you know, I can't I don't know what to do about it and I'm not an expert on any of that. I will say though, you do see the polarization playing itself out of the court. It was as most it was as polarized this term as I I can ever remember it. The three liberal justices voted together in all but I believe seven cases. Only in one of those was a dispositive and I think four or f five of them were a solo descent. four by Justice Jackson and one by Justice Kagan in the Havana Docs case. I mean, incredibly high level in in every case that mattered. You had the three liberal justices together. You had a somewhat higher level of disagreement among the conservatives, particularly between the formalists and the pragmatists, but still pretty high level of agreement among the conservatives too by historical standards. So, like, you know, you see it even playing itself out across the the cases. So, I like I agree with you. It is. It's real. It's real inside the court and it's real outside the court.

[01:09:14]>> Yeah.

[01:09:16]>> I want to hear your n your non-legation test. Um [laughter] >> I I'm not going to bore everybody, but I uh I think >> I want to hear it, too. Uh I we we try we tried very hard in the brief to sort of explain what were details and what were bigger picture things that would still fall short of the major questions doctrine and we gave some examples and we gave some language that I thought the court could could uh adopt. But I will I will send you the brief. I was very we worked extremely hard. I put a lot of thought into it. I thought it was like the best I could possibly come up with and I don't think anybody read it. So, uh, as far as I could tell anyway, >> I knew Lee was gonna ask about non-delegation. I I should have asked you, do you have any thoughts on the polarization question?

[01:10:10]>> Oh, no. Yeah, I I agree with what what Jeff said. And I think like perhaps one silver lining was when you know, Justice Kagan and Justice Barrett were testifying, I think the court is unified on that. They recognize that it's a problem. Um, so but but yeah. Okay. All right. I think this is our last question.

[01:10:29]>> First of all, thank you for your time here today. I had a question about the legal nature of our security guarantees and how enduring they can be. So if for example, Congress ratifies a security guarantee and then the president signs on to it and then I don't know three administrations later some arbitrary number we decide on the executive level not to enforce it anymore to withdraw.

[01:10:48]How do we then have enduring security guarantees if that's possible anymore?

[01:10:55]I mean, so I'm no expert on national security, but I guess I have two reactions, right?

[01:11:04]Which is um one seems to me like what you're talking about is like the apex of Youngstown, right? Congress put it in place, executive signed off, and has been enforcing. So, first principle, courts should generally stay out of that. Second, okay, executive decides like not to enforce. Well, I mean I don't we typically think of that as like a prerogative of the executive after all. Like that is the take care clause and that is the president's decision.

[01:11:33]Like how and to what extent will I enforce these laws and so um it seems to me you're right that like not enforcing it could unsettle our relationships with other nations and and so forth. But I I don't know, maybe uh maybe I'm showing my stripes, but that seems to me like a quintessentially executive question. Um and and sort of um not one that, you know, sort of we in court and and courtroom land should should have much to do with.

[01:12:06]>> Yeah, I agree with that. And that's, you know, sort of the premise of the United States versus Texas is we can't force the executive to to en enforce the law.

[01:12:14]You also have, you know, the counterveailing concerns about not allowing a new administration to have their own foreign policy priorities. Um, which I think would also probably run a foul of article 2.

[01:12:27]>> Thank you all. Great panelists. Give me a round of applause for them.