Hi everyone. Good evening. My name is Bella Ryb and I’m the executive director of the Constitutional Law Center here at Stanford. And it is my pleasure to welcome you all to our annual Supreme Court roundup and preview. Tonight we have three fabulous panelists to talk us through the most important Supreme Court cases of last term and this term, and I’m excited to introduce them.

First, we have our very own Easha Anand. She is an assistant professor and the co-director of the Supreme Court Litigation Clinic here at Stanford Law School, where she represents employees, non-citizens, consumers, unions, criminal defendants, and civil rights plaintiffs before the United States Supreme Court. Recent victories in cases Easha has briefed and argued at the Supreme Court, include wind on behalf of a long distance truck driver tricked into buying a product that contained a federally controlled substance, a jeweler jailed after police fabricated evidence against him, and, in a unanimous opinion, a whistleblower fired after reporting violations of securities regulations.

Prior to joining the SLS faculty, Professor Anand was a Supreme Court and appellate counsel at the MacArthur Justice Center, where she litigated police, excessive force, prison condition, wrongful conviction, and other criminal defense and civil rights cases in state and federal courts of appeal around the country.

Easha received her JD from the University of California Berkeley School of Law, and clerked for former Judge Paul J. Watford on the Ninth Circuit and for Supreme Court Justice Sonia Sotomayor. Jeremy Feigenbaum is the Solicitor General of New Jersey, a role he has held since July 2020. Jeremy is the state’s first Solicitor General, a role from which he helps coordinate the New Jersey Attorney General’s involvement in matters before the United States Supreme Court, federal Circuit Courts, and the New Jersey Supreme Court, and provides assistance to the department in cases involving significant constitutional and appellate issues.

Jeremy previously served as counsel in the office of the New Jersey Attorney General before joining the office of the Attorney General. Jeremy was an associate at Kirkland and Ellis in New York. He has also served as an adjunct professor at New York University School of Law. He clerked for Judge William Fletcher of the United States Court of Appeals for the Ninth Circuit and Justice Atlanta Kagan of the United States Supreme Court. He graduated from Brown University and Harvard Law School. 

Last but not least. Colleen Sinzdak is a partner in the Washington DC office of Millibank LLP, and a member of the firm’s Litigation and Arbitration group. She specializes in Supreme Court appellate and complex litigation. She also provides strategic advice regarding constitutional issues and legal trends in the federal court, drawing on her many years of experience as an assistant to the list, the Solicitor General in the United States Department of Justice, Ms.Sinzdak has argued 11 cases before the Supreme Court, advocating for winning positions in major cases involving securities, litigation, bankruptcy, patent law, and more. She has also briefed well over 100 Supreme Court cases. She clerked for Chief Justice John Roberts of the United States Supreme Court. With that, I’ll hand it over to our panelists. Thank you.

Thank you Bella. Can you guys hear me in the back? Is this better? Better? Yeah. Okay. Uh, thank you Bella. Thanks to the Constitutional Law Center. Uh, thank you all for being here. It is such a treat to be here with Jeremy and Colleen. So thank you two from flying for flying out. Um, so those of you who have been here in previous years kind of know the drill.

We’ll each take a few minutes to kind of put a theme or a high level thought about the court on the table. Then we’ll kind of each run through a case from last term that’s significant and a case from this upcoming term that’s significant. Um, and one of us will kind of take point on table setting and explaining what the case is about.

Uh, but I hope that both of you will feel free to kind of chime in with questions and comments as we go along. Um, so with that, maybe Colleen, I’ll turn it over to you to start, if you don’t mind. Um, uh. Court at this moment an idea or thought you wanna kind of put on the table or an observation you wanna share?

I’m sorry. I’ll figure out the microphone before I talk again. Uh, can people hear me? Great. Okay.

Hello? Oh, can you hear me now? Okay, great. Um, uh, I was always too loud as a child, so wearing microphones makes me very self-conscious. Um, anyway, what I was, what I started out saying is that I, I think that the court, that, that there’s a lot to be praised about the court right now. I think this is an incredibly difficult time in our country and I think that the court is functioning and, um, I’m not, I’m not going to say well, but I actually, I think that in a lot of ways it is actually functioning quite well.

So at a time when Congress is not, uh, legislating and the, um, president is doing something, but maybe not exactly what the, um, constitution contemplates in all respects, uh, I think that the Supreme Court is functioning as, um, the Constitution contemplates. I think that it is, it is deciding cases and I think that it is, um, deciding cases and, and, and talking, uh, and, and demonstrating how people can, um, speak to one another with very different views in government in a way that the other branches perhaps are not.

So I think if you, uh, go to an oral argument, um, you would be surprised, uh, because if you read in the newspapers, the, um, court is depicted as this, uh, partisan beast. Um. If you read the Supreme Court decision, sometimes there’s quite a lot of, uh, rhetoric from, um, both sides. If you go to oral argument, you get a very, um, civilized, thoughtful argument about the law.

It’s not just a bunch of people saying what their policy preferences are. It’s not a bunch of people yelling at each other or, um, name calling. It’s actually people trying to have a serious discussion about, um, about the cases and about the principles. And it’s sort of, um, encouraging in this time to see, uh, one area of our government continuing to function.

So that’s what I wanna put on this, on the table. I recognize it’s not the most popular, but that I, I think we, we we can focus, uh, on what the Supreme Court is doing right. And just as a little end piece to say why I wanna focus on this is I think it’s really important to focus on what the Supreme Court is doing, right?

Because I think we’re in a time when the legitimacy of courts is being questioned and the need to adhere to judicial decrees is being questioned. And when we, uh, constantly focus on what’s wrong with the Supreme Court and wrong with courts, I think it actually makes it easier to, to push them aside and to say, why bother? Why bother with them? Anyway, so, um, focusing on the good. There you go. 

Can I ask, I’m curious, the last kind of piece you put on the table about the kind of legitimacy of the court and the likelihood of following judicial decrees. What are your thoughts about kind of the Supreme Court’s role in that? Because I think, um, I maybe among others was a little bit surprised to see, for instance, the recent opinion by Justices, Gorsuch and Kavanaugh kind of chastising some of the lower courts. I think I’ve also been surprised to see that in general, um, the Supreme Court majorities have not taken to task behavior.

Um, that does call into question the legitimacy of the decrees, right? So in, you know, for instance, JGD, the kind of Judge Boasberg place case where he says, turn the planes around. Um, and there’s a bunch of, uh, conduct that the dissenters call out as shady. Justice Barrett joins everything but the part characterizing the shady conduct, for instance.

Um, uh, and so I’m curious if you think the court has a role either in buttressing the lower courts, or in calling out some of the behavior that comes close to skirting these sorts of judicial decrees, um, as part of its effort to kind of retain a legitimacy. I mean, I, I think, you know, what you, to, to, to focus on one specific issue.

I think Justice Barrett not joining that particular part was actually an attempt to stay out of what I think she may have perceived as a very, a political dispute. Um, I, I think something that has been tremendously. Useful to me is that, uh, many of my friends are of, of the conservative persuasion. Um, and I think that the way that the Judge Boasberg episode happened seemed very clearly one way.

And then I talked to some incredibly, I think, intelligent principled people who saw it in a different, in a different way. And I think there was some, like how you saw it, maybe did depend more on politics than I had at, at first appreciated. And so I, I think that some of the, like not doing that is trying not to engage.

And I think there are serious questions to be asked about, like, you know, at what point does not engaging is that, you know, abdicating your, your important role in protecting the judiciary and the, the judicial institution. But I, I think that that, that, that’s where that’s coming from. 

Um, Jeremy, can I turn it over to you? Any theme, topic, opinion about the Court you wanna put on the table? 

Yeah. Theme and topic. Um, first of all, thank you to all the same folks for having us. I know all three of us are excited to be doing this. I think the theme, okay, I might have to move. Oh yeah, I have to move that up. Like Colleen, I also was told I was too loud throughout my life and I am in fact too loud. So this is going to be an unusual experience, um, acoustic of this rule. Yeah, no, no, it’s great. 

Um, two thoughts. First is like everything in American society right now, it’s impossible this year to talk about the Supreme Court without talking about the president. The president, President Trump is sort of like the defining figure for our government, for our institutions, for our courts right now. And like all the oxygen in all of our conversations about anything relating to governance, it’s impossible to have a conversation about SCOTUS and review this year without talking about the president and the policies that they’re specifically responding to coming out of the executive branch. 

So what that means in a big way is that this was the year of the emergency docket. Some people call it the shadow docket. Some people call it the interim orders docket. I’ll use emergency docket. ’cause that seems to appear the most in the most number of Supreme Court opinions these days. Um, it is the year of the emergency docket, and I think it is the year that the emergency docket proved it’s here to stay. So we can have a big interesting debate about whether the emergency docket is a good idea or whether it’s a bad idea. I happen to fall in a really unhelpful perspective on the, it’s here to stay. It can’t be never. It can’t be always, and we have to figure out how to live with it and when to live with it and what role it’s going to play.

It can’t be never, because there are seismic decisions coming out of individual district courts that prevent a policy, uh, a president from adopting a landmark policy. It can’t be always because if the emergency docket has problems that I think everyone acknowledges, rushed decision making, a lack of oral argument, a lack of detailed briefing, when you don’t have the full consideration, you get from full merits briefing and for full oral argument, you can revert to the mean, you get decisions that don’t fully explain themselves in this posture.

And so I admit some sympathies to the members of the court who basically say, we recognize that this has costs, but it can’t be that we never do this because there are some decisions coming out from the lower courts, from both the district courts and the court of appeals that require our intervention.

And so if it’s here, if we have to live with it, if it’s here to stay, how do we improve its procedural regularity? And I think the court, and I think a lot of the sort of commentators are around the court n. It’s fine to talk about whether it’s good or bad, but it’s time to acknowledge it’s here and it’s time to acknowledge that we should try to figure out what are the best ways to improve it.

When should they have oral argument? What are the benefits of oral argument on these emergency cases? When should they just grant certiorari and turn the case in an expedited way into a merits case right out the gate? They’re trying different options across the board. So we will talk about individual cases later, but in the birthright case, they set argument in the Cook case, the, um, Lisa Cook fed, uh, fed board member case. They set argument in the slaughter case involving the firing and FTC official, they granted cert in most cases. They’re just issuing orders. When should they just issue orders? When should they turn these cases into full cases? How should they think about these cases knowing that we live in a new world with a pretty small merits docket and a pretty big emergency docket.

And that’s gonna define in many ways the success of the court and how people grapple with the court. And so it’s time to pivot ourselves into living with it. Um. 

Maybe I’ll actually use my time to ask you a follow up question, which is about, um, my prediction that actually we’re gonna see more oral argument. So here’s my thesis and I’ll be curious to hear both your reactions. So, um, we know there’s sort of one fairly consistent vote actually for briefing an oral argument, which is Justice Kavanaugh, right? So he is, um, dating back to a case called Labrador v. Doe, which was about Idaho’s ban on gender affirming care. He writes his concurrence, that’s sort of like, you know, I think we should be setting argument a lot more. These, these sort of interim orders have a lock in effect, um, and there’s no reason we can’t do it. And then actually somewhat consistently in the Trump cases, right? So in a A RP, that’s the Third Alien Enemies Act case that sort of turn the buses around in Texas case, in boil the case about firing the kind of purportedly independent head of the consumer product safety commission, both cases, he writes these concurrences saying, I think we should set this for argument one vote.

I’ve kind of understood why to date a bunch of the other justices haven’t wanted to, to be the remaining votes. It’s four votes to grant cert. We got one, the three liberals. Maybe you thought at some point that you could limit the kind of bad law from your perspective that’s being made. Right. The state decisions, um, for a long time were considered not precedential. Right? It was not so long ago that Justices, Alito and Kavanaugh in a case called Merrill v. Milligan about, um, which was one of these redistricting cases where the Supreme Court granted a stay. Um, they would literally write a concurrence that says like, please no one mistake this for precedent. To reiterate, this opinion is not precedential, right?

And so maybe you’re one of the three liberals you think, I don’t wanna force a grant ’cause that’ll convert this from an emergency docket, uh, order that is not precedential. To read it, not precedential, um, to something that that’s got real force that’s in the US reports. Um, you know, we’ve heard skepticism from some of the other justices.

Justice Gorsuch in the TikTok case, which was one of these kind of expedited cases, writes, you know, because it was so expedited, I can’t profess the kind of certainty I would like to have. Justice Barrett, um, in a case that where the court granted cert early in the lifecycle of a case, um, about, um, Idaho’s abortion ban, when the court has to dismiss the case, she writes, you know, facts on the ground are changing, I think it was a bad idea to do this early. So if you’re the liberals, if you are Justice Gorsuch, who wants to have this kind of certainty, if you’re Justice Barrett, who’s worried about facts on the ground changing, I think I understand why to date you have not wanted to be votes 2, 3, 4 for a cert grant, full argument and briefing.

Um. That’s changed, right? So in recent months we’ve seen, uh, case after case where the court has treated prior emergency docket orders as squarely precedential. Um, so for instance, in the kind of removal cases, we saw kind of an initial case, um, about the firing of the, uh, MSPB and NLRB heads, uh, where the court doesn’t even really reach the merits, right?

It sort of says, uh, we think that the government’s likely to prevail on part of the analysis, but we don’t have any opinion about whether this falls into an exception. And yet the follow-on cases come up and they’re just citing back to that case. Um, there’s a series of cases about whether funding challenges go to district court or have to go to the court of federal claims.

Um, the Supreme Court not only cites back to emergency docket opinions and their reasoning, but in one instance, justices, Gorsuch and Kavanaugh even chastised the lower courts for not kind of squarely following that earlier precedent. So I guess my, my prediction is. Why hold back now? I think that we’re gonna see a lot more oral argument ’cause whatever your worries are about the difference between these emergency docket orders and what’s in the US reports, um, whether it’s because of bad law or certainty or whatever other values you have, it seems like that difference is getting erased.

So I’m curious if, if you think that’s right as a predictive matter or that pendulum’s gonna not gonna swing the other way. 

I, I share Easha’s prediction that we’re likely to see more cases where they grant either cert immediately upon the emergency application or set additional briefing and argument.

I don’t know. I’m ready to say we’ll see it in sort of like the modal way that they handle these emergency applications. But I think we’re gonna see significantly more. We’re already seeing an increased number of this term. We’re already seeing. In two cases this year, they’ve already granted in these removal cases, one, they granted right from the emergency application for the removal of an FTC member. And then in the Lisa Cook case I was mentioning before, they set that for additional briefing and argument. So I think we’re gonna see the emergency docket as a way to tee up full briefing and oral argument a little more. I have to say, I think partially because of what Easha is identifying, I think in some respects it’s a welcome development.

If these orders are going to be precedential and if they’re going to bind the country for a couple of years before the US Supreme Court returns to the issue on the merits, then they’re effectively final. A great example is what we call the agency dismantling cases. I’m gonna try to avoid using like pejorative language. I’ve litigated some number of these cases, so I may have some strong feelings at various times. I’m sure there’s a better framing than agency dismantling cases. I think you can probably call them reduction in force cases instead. So call them RF cases, call them agency dismantling cases. Call them what you will. But the, the downsizing considerably of federal agencies. And those were consistently decided by emergency order without more detailed briefing, without more detailed oral argument, uh, and without detailed opinions. And that’s gonna last for a couple years. And it means that some agencies have lost 40% of all employees, 50% of all employees or more.

And so if that has happened and years go by, you can never refill those agencies. So if that’s gonna be effectively the final decision for the country on the validity of the rif slash downsizing slash dismantling of these agencies, it would be good. For the US Supreme Court to be confronted with the full panoply of arguments for the merits and demerits of that position and an oral argument to grapple more with the nuance.

Because one thing I found, and I think this goes to Colleen’s point earlier, oral argument does force courts to grapple more with nuance. It might not change the actual outcome of the bottom line vote, but it forces them to think about how far their rule goes. It forces them to talk to each other in open court about how far different sorts of rules go.

And when you add a little more procedural regularity, you might end up producing opinions that have a little more caveat, a little more, carve out a little more recognition of what makes that case particularly hard. And so it might not even change all the outcomes, but we’ll have more detail, more answers for why certain decisions were reached and may reached, and maybe a recognition on what the kind of cases are that would be different so that all of us as litigants, as states, as federal actors, as nonprofits as, as, uh, law school clinics will have more certainty about why decision X came out a certain way. So trial courts can know how best to follow it, and parties can know how best to litigate that precedent in the next case. So maybe speaking of a high profile case that migrated from the emergency docket to the merits docket, um, 

 

Jeremy, uh, you argued the CASA case about universal injunctions. It was a masterful argument. If anyone has not listened to it yet, um, you offered to recap that case and tell us what you think it, it portends. 

Okay. I am hopelessly biased about this case, so I will do everything in my power to check my biases about this case. Uh, the New York Times had a great title, uh, talking about this case that said the case about birthright citizenship in parentheses, but is really about nationwide injunctions.

And I thought that was like the perfect way to encapsulate it because so. Trump v. CASA is ostensibly a case, but is in no way a case about birthright citizenship itself, although it’s certainly looming in the background for this case. The first day of Trump two, President Trump issued an executive order redefining birthright citizenship, and a number of lawsuits were filed by states, by nonprofit organizations and by individuals and putative classes of individuals representing birthright citizens themselves.

And from my perspective, given, uh, 150 years of Supreme Court precedent and a very long, uh, tradition under the Fourteenth Amendment and predating the Fourteenth Amendment of what citizenship has always meant in this country, we all want our cases. And the United States, uh, perhaps recognizing the strength of our merits position did something very different in this case than it did in all the other cases.

In all, in basically every other case, not literally every other case, but close to every other case that it’s taken up to the US Supreme Court in the emergency docket in the last seven months, eight. Nine months, whatever, whatever amount of time it’s been. 10 years. Yeah. Dog months. Um, it, it, it took up the merits and all the other cases, but in this case, it conspicuously said Supreme Court, we are not here to talk to you about birthright citizenship. We are here to talk to you about a different problem. The fact that these individual trial courts across the country have all blocked the president across the nation from adopting his birthright citizenship executive order. And they made a case that this was a particularly good vehicle for the US Supreme Court to consider this question that had been bothering them for some number of years because it came from a presidential executive order.

I’m gonna explain later why that potentially made it a useful vehicle for them. Um, and the Supreme Court treated it very differently than the way it was treating the other applications. Set it for oral argument and invited additional amicus briefing. My one procedural comment here is that these were early days, and this is one of the reasons I’m so bullish on additional briefing in these cases too.

These were early days where it wasn’t yet fully known that, uh, a filing by the president and the US Solicitor General’s office to the US Supreme Court would almost certainly get emergency relief if they agreed with him on the particular argument he was making. And so a lot of that brief has discussions about why on this posture it’s too soon for the Supreme Court to come in.

It has a lot of stuff about the equities of why the public interest or irreparable harm does not support the, the US Supreme Court stepping in at this stage. Now, it’s quite clear when you’re filing these sorts of filings in response to a, an emergency application by the president, you should de-emphasize those points and you should be just emphasizing why ultimately you think that the president does not have the right case on the merits because they have shown that they think the equities in these cases very much warrant early stepping in and allowing the president to.

Um, federal law as the president understands it if they ultimately agree with him. And so, um, we probably briefed seven pages on the question of universal injunctions, which is not the amount of briefing you would want as a party for heading into a US Supreme Court dis, uh, case about the propriety of universal injunctions and incredibly difficult legal question.

I do not think the birthright citizenship merits question is the hardest question I’ve ever had to litigate as a lawyer. But the universal injunctions question is a genuinely difficult question that has long vexed administrations of both presidential parties. And so ultimately we had argument and in my view, because of the increased procedural regularity that we saw in the emergency docket, in that case, we got a much more nuanced opinion that came outta the US Supreme Court.

It did not issue a decision that matched what New Jersey and the other states were ultimately asking for squarely, which was to specifically affirm our nationwide injunction. Instead, the US Supreme Court for the first time, as a majority said that, um, the statutes that govern, uh, jurisdiction in the courts, the equity power of the courts does not actually let, uh, these sorts of orders be issued.

But it had a ton of carve outs, a ton of carve outs, and from my perspective, the import or lack thereof of a case like Trump v. CASA is gonna completely rise or fall with how those questions get answered in the future. So, Trump v. CASA, big headline day of is the universal injunction is over.

But actually there’s tons of questions they note in the opinion that say maybe there are other opportunities to get nationwide relief. So they say sometimes, maybe even the states in this case still have an opportunity to get nationwide relief if we show we need it to protect ourselves from harm.

People move across borders when they’re citizens or not citizens. It harms us in a lot of ways when we’re dealing with our own punitive citizens. Maybe this is a case that meets that. They also said in cases where you’re challenging agency actions as distinct from presidential actions, a separate law, the Administrative Procedures Act may or may not.

They reserve the question entirely allow for this kind of universal relief across the board. So maybe presidential eos are exempt from this, but there’s a whole different statute with a whole different potential legal tradition that applies when an agency is acting instead. And also they said, and it shouldn’t be too hard, maybe to get class actions against a lot of these federal policies and how one answers those three questions, how easy it is for states to sue and when they need these sorts of broad remedies for complete relief.

Whether and when the administrative procedures act separately allows for this sort of universal relief and how easy it is to get class actions against federal policies will either make Trump v. CASA an incredibly seismic, hugely important case about the role of the federal government vis-a-vis everyone else, or a case that seemed a lot bigger than it was until everyone pivoted in the kind of filings that they filed going forward.

And so from my perspective, Trump v. CASA was arguably the biggest case of the term last term, and also arguably not going to make a huge difference on the ground. And I think anyone who tells you they know the answer to that, to how the Court’s gonna answer those three questions in the future is a little bit unknowable.

And all I’ll say is, before CASA there were three nationwide injunctions against birthright citizenship. And after CASA, there were four nationwide injunctions against birthright citizenship. And the United States did not take the injunctions back up knowing I think that they’d gotten everything that they were gonna get out of that case.

And so from my perspective, I think it is a really interesting, meaningful case about how the Supreme Court sees the role of courts writ large and sees its role vis-a-vis the lower courts, if there’s gonna be a big conflict between the executive and the judiciary, the Supreme Court’s making clear it wants to be the one deciding what the judiciary’s posture is, vis-a-vis the executive as much as possible.

It’s why we have an emergency docket, and it’s been so active. It’s why CASA reflects a certain conception about the role of different courts authority and a specific statement that the Supreme Court’s opinions will always be followed by the executive, a concession that the United States truly made during oral argument.

So it’s very much a story about the Supreme Court, making sure it has the authority over the judiciary for these inter branch conflicts, but what that means on the ground for litigation going forward. I, to me, is a big open question.

Yeah, I guess. I guess that is my question from it. I have to say, I read the opinion and I thought. I don’t think this is actually different from prevailing law, uh, in the sense that it seemed to just be saying, you know, remedies should be limited to the parties. And sometimes because of the nature of the particular legal dispute to truly remedy the party’s injury, you’re going to have to give wide relief. And I thought that was the law. Um, so I guess like what, what was added by uh, CASA? 

So I think CASA did something very important, I think, um, and important has no value judgment in it. But I think that this part was important, which is I think that before CASA District Courts were all over the place about what were the basis for nationwide relief. So some district courts and in our view, the district court, in the case I had been litigating, thought that nationwide relief, you look for relief for the parties and nationwide relief makes sense here because the parties needed it and Justice Barrett for the majority leaves open that that might have been right and remands the question and says, maybe actually in this case, we’re just not deciding one way or the other. Maybe in this case a nationwide injunction is fine. You did have a series of decisions across administrations and the district courts that were issuing these decisions would vary, but the idea was the same, which would say, for example, uniformity in immigration law is important and therefore a nationwide injunction must follow.

And I think that way of reasoning of saying, like, uniformity of this area of law or of this right is enough to justify the injunction. That’s the kind of stuff I think CASA‘s taking off the table. And so I think CASA itself cites different district court opinions that were in front of it. There were three different district courts that went in front of it and it is saying, one of you looked like you used a test that works.

We’re leaving if you applied it right, but it looks like you used a test like Colleen is describing. That’s fair. Two of you look to us and the dissent disagrees with the reading of the district courts, but what matters is what the majority thought. The majority says. Two of you, you actually just thought like a uniformity or right sort of analysis is good enough to justify nationwide relief and that we’re taking off the table.

Uh, Colleen, I’m gonna kick it to you next. I’m actually excited you’re gonna talk about this case. ’cause I think it’s a challenge to your collegiality theme, maybe a little bit. Uh, that’s the case of Mahmoud v. Taylor. Um, I’ll turn this on. 

Uh, yes. Look, no one is collegial all the time. Um, we have to look on balance. Uh. Uh, yeah, I, I, I find Mahmoud v. Taylor a really a tricky case. So just to give you the facts briefly, in case, um, you are not aware of it, this is the case in which the Supreme Court appended the pages of children’s books to its, uh, decision. Um, the actual question presented was whether Montgomery County Public Schools, which is actually the public school system that my children attend.

Um, yep. I’m a graduate of Montgomery County. 

Oh, really? Well, we’ll talk later about where, but, um, anyway, uh, it’s about whether Montgomery County Public Schools was permitted to have a program in which they, um, they, uh, included books. And it’s so hard to talk about the facts of this case because the Def Defense dissent and the majority actually disagree strongly on the facts.

So I’m trying to kind of present a, a, a neutral, a neutral, uh, dis, uh, account, but books featuring LGBTQ+ characters arguably, um, encouraging the view that, um, that an LGBTQ lifestyle is okay, exists, um, a great thing and everybody should have to be it. Uh, it really, it kind of depends, um, on how you see these, uh, these particular children’s books.

Um, but Montgomery County introduces them into the curriculum. It originally offers an opt-out, and this is very important. It originally says, parents, if you do not want your children to participate when these books are being taught, you can let us know. And that opt-out was consistent with an opt-out that Montgomery County has for, I didn’t actually know this, but human sexuality classes.

Um, you can opt out, uh, you can say you don’t want your kids to, to, to, to be there for that instruction as well. Then Montgomery County, um, decided that that was not administrable, that the opt-out wasn’t working because too many people were asking for opt-outs. And unlike in the, um, in the human sexuality, uh, lessons, which were a discreet part of the curriculum, where you could say like, you know, next week we’re doing this, do you want your kids to sit out?

They were just using the, the whole point of this program was to just integrate the books into the curriculum throughout. So Montgomery County does away with the opt-out, a number of parents who do not want their children to be exposed to these books object. Uh, and they say that the teachings in the book, uh, that the books are being used to teach values that are contrary to their religion because they are teaching values that celebrate the LGBTQ+ lifestyle that celebrate the idea that, um, humans can have different, uh, can, can, can have different genders from the gender with which they’re born. Did I just use gender wrong? Okay, good. Um, alright, so, uh, um, so they, uh, object these v the this and they say that it is a burden, a First Amendment burden on their rights to, um, force their children to be, uh, getting public education, uh, with it without an opt out.

So the case comes to the Supreme Court, and interestingly, I really do think this is as I was an English major and a high school English teacher. And this is one of the few cases that seems to turn, to turn heavily on, um, on, on the interpretation, the, uh, of, of children’s books because Justice Alito writes this majority opinion saying that, yes, of course this is a First Amendment burden, an intolerable First Amendment burden, because he reads these children’s books as, um, ipar as as, as requiring, uh, as a message of like, uh, celebrating the LGBTQ plus lifestyle, celebrating, uh, the idea that you can have different genders over the course of your lifetime. And that, and, and he reads the instructive material accompanying these texts as, as, as, as essentially requiring teachers to say that these are values that our community has. Um. 

Justice Sotomayor in dissent has a completely different reading of these children’s books. So her understanding of the children’s books is that these are books that simply treat LGBTQ+ people as existing, that they are just having char, they’re just characters. So, you know, there’s a, the, I, I’m gonna try to be brief on this, but the maj, the story that’s kind of at the, at the centerpiece is about a little girl who’s upset because her uncle is getting married. And Justice Alito reads this story as a sort of coy reference to the little girl being upset that her uncle is getting married because she’s upset that he is a gay man, marrying another man. And the lesson is she shouldn’t be upset. She should learn to celebrate it. And at the end, she does in fact celebrate the wedding. And Justice Alito reads this story as a story of a, a child learning, you should celebrate gay marriage. 

I have to tell you, as a former English teacher, I actually think it’s just a story about a little girl who’s upset ’cause her beloved uncle is now maybe gonna spend more time with his husband and not with her. And I think the story, I think it would’ve been exactly the same if it was, uh, a, um, woman that he was marrying. Um, that so, so that story, I think Justice Sotomayor has the better of the, uh, literary interpretation.

There are other stories where I actually think that Justice Alito has the better of the literary interpretation, where I think it is hard to read the stories as, as saying anything other than like, these are values that we should have. Um, you know, books are great because you can have lots and lots of different interpretations of them.

Um, but it’s really tough when you have a Supreme Court case that turns on this because, um, I don’t quite know what the holding of Mahmoud really is at the end of the day because I think. There’s one way of reading Justice Alito’s opinion to just say like, look, you can’t have a bunch of lessons in school where you tell everyone that they have to be happy about gay marriage.

Like, right. Like that’s one way of understanding it. And, and I think at the end of the day, we could probably all say like, okay, that’s, that’s pretty, pretty reasonable. Just like, you know, you can’t have a bunch of lessons at school saying that everybody has to believe that Jesus Christ was our Lord and Savior.

You know, like, fine, fine, that’s what’s going on. But if you read it actually as him saying, you know, people have to be able to opt out of being exposed to books that have, uh, LGBTQ+ people in it, that’s a much bigger statement. And that would be a decision that has much, much bigger effects. You know, again, as a former English teacher, I taught lots of books.

I was teaching in high school. I taught lots of books that had a lot of, um, characters of all different sorts in them that I’m sure you could have lots of objections to the messages of those books and the, and what was going on. And like, you know, the point is they, they, they just kind of existed and we were using them and we were talking about them and we were having open discussions and I’m genuinely not sure reading Mahmoud whether I would have to allow opt-outs for a lot of the books that I was teaching, what my responsibilities would be.

And, and that’s, that’s really tough. So I find Mahmoud an interesting and really tough case. I actually looked online to see the California Public Schools has put out, um, public school system has put out guidance on Mahmoud that kind of says what I said I just said, which is like, we don’t really know what it means. Don’t do anything dramatic because no one’s quite sure exactly what that decision is going to stand for in the end. 

Uh, well, I, I have a lot of thoughts about the case as a Montgomery County Public School graduate, as the owner of both Uncle Bobby’s Wedding and Pride Parade. I’ve read them both to my kid.

Yeah. Um, uh, but in the interest of kind of getting through a few more cases before we turn over to Q&A, um, and we, I’ll bring up the rear and talk a little bit about another blockbuster case from last term, uh, United States v. Skrmetti. So I’ll be brief about the background of this case, ’cause I think it’s one that’s familiar to a lot of people.

Um, about half the states have passed partial or total bans on gender affirming care for minors. This is treatment that’s lifesaving for a lot of children and their families. Um, and so both United States, this is during the Biden administration and the individual families represented by the ACLU sue to enjoin one of these bans in Tennessee.

Um, uh, Sixth Circuit upholds it so they lose the Sixth Circuit. They seek certiorari. Quick note at the outset. So both the United States and the ACLU seek certiorari, um, and the United States petition contains one question. It asks just does this law violate the equal protection clause? The ACLU petition has two different questions.

It’s the equal protection clause piece, and then it’s also a question about the substantive due process rights of the parents. Um, I think sort of, uh, puzzlingly to a lot of observers, the Supreme Court just takes the United States petition and not the ACLU petition puzzlingly because, um, at that point it was clear that there was some chance that the administration was going to change, right?

The United States position on this issue was going to change. We were in an election year, and, uh, lo and behold, come January, um, uh, the Trump administration comes in and says, we think actually Tennessee’s law is totally constitutional. Puzzling also because, you know, the Supreme Court has been raring, or at least some of the justices have been raring, um, to deal with this kind of substantive due process parents’ rights question. So we see, um, justices, uh, Alito and Thomas in a couple of different cases, writing these dissents from denial of certiorari. So cases where the Supreme Court says, we’re not taking this case, these two justices say, would like to take this case, um, about that issue. They, the cases that they’re interested in arise from, um, school districts that have a policy that says, um, uh, if a child doesn’t want you to, you don’t tell their parents what pronouns they’re using at school.

And, uh, this has been challenged on the kind of substantive due, substantive due process, parents’ rights front. So that’s at the outset of the case. Okay. So what are the arguments that get made within this equal Protection Clause framework? Um, so remember, right, 1L Con Law, um, uh, most laws just get what’s called rational basis review, right? So laws just dripping with animus or wholly arbitrary. We trust the democratic process. Certain laws that classify on so-called suspect characteristics, things like race, sex, national origin, get what’s called heightened scrutiny. So you have to look a little bit more into whether there’s an actual problem being solved and that this law is kind of a good way to do it, because otherwise you’re worried about kind of rank discrimination.

So challengers make two sets of arguments, right? They say first this bill classifies on the basis of sex. If you were assigned male at birth and you want to take, um, uh, uh, puberty blockers or hormone therapy to deepen your voice or get facial hair, totally okay? If you are assigned female at birth and you wanna take the same drugs, uh, to deepen your voice or to develop facial hair, not okay. Under Tennessee’s law, that’s a sex classification. 

Second, they say this bill also classifies, uh, people on the basis of their transgender status, right? Um. And, uh, even though the Supreme Court has not ruled on this yet, that is a suspect characteristic akin to, um, uh, uh, sex or race or these other, uh, characteristics that trigger heightened scrutiny.

So after argument, um, was clear the challenges were gonna lose, and the question was, how are they gonna lose? So possible path number one, which would’ve been kinda the best case scenario for the challengers, would have been the court holding or accepting for the sake of argument that this law did classify in the basis of sex or transgender status, um, and doing the kind of heightened scrutiny analysis, right? And the court could have said, um, again, in this world where the challengers are losing, look, this is about minors. It’s about medical care. It’s about from what our perspective is still evolving science, uh, and therefore this law is okay, even under heightened scrutiny. And that would’ve been the best possible outcome, I think, for the challengers, because it would’ve been devastating for a lot of families on the ground today. It would make clear that these sorts of laws are subject to some sort of scrutiny, and it would leave open the possibility that if the medical consensus changed these sorts of laws could be revisited.

The Court didn’t take that off ramp. I think it took the second least bad option from the challenger’s perspective, um, which was to basically say, um, uh, look, this law does not classify in either of those bases. We don’t have to address whether transgender status gets this kind of heightened protection. Um, instead we’re gonna say, this law classifies on the basis of medical condition.

Right? So they say neither a boy nor a girl can get, uh, puberty blockers to treat gender dysphoria. Transgender boy cannot get puberty blockers to treat gender dysphoria, but can get puberty blockers to treat premature puberty. Um, uh, I’d sort of commend folks to the def descent written by my former boss, justice Meyer, which I think takes apart this logic, um, uh, pretty effectively.

Um, the path is in terms of practical consequences, I think still far worse than the first outcome, right? It puts, um, state could pass a law outlawing this kind of treatment for adults and, uh, uh, that would classify in the basis of medical condition. And so it be subject only to rational basis review. Um, but it would, it’s not as bad for the challengers as the path the three of the Justices, justices, Barrett, Alito, and Thomas.

So Barrett, again, people always talk about kind of the 3, 3, 3 court and sort of put her squarely in the middle. Um, on this issue at least, she’s certainly not in the center of the court. It’s the Chief Justice Gorsuch and Justice Kavanaugh that take this kind of middle path. Um. The path that Justice Barrett articulates says I would address right now the question of whether transgender status is suspect, um, and I would say no. So I would say laws that classify on the basis of transgender status don’t trigger any form of heightened scrutiny. Um, now the majority reserves that question, so who knows where it ends up? Um, uh, but at least for now, I would, I would assess this as the court picked. The second, the second least, the, the, the middle path among the worst in the world where the challenges are losing. The court picked the middle path, um, uh, despite three justices urging them to go further. 

Um, with that, I, I guess I’m hoping we can transition to talking about the term coming up, um, blockbuster case in the docket, uh, tariff’s case that Colleen is helping to spearhead litigation about. Um, so we’re very lucky to have you here talking about the case. Tell us what’s going on and what your predictions are, without compromising any client con confidences. 

Yes. So I am working on the litigation, so I’m only talking about publicly available information. Um, I am on the team of, uh, people representing a number of small businesses who sued to challenge, uh, President Trump’s Liberation Day, uh, tariffs.

Those were the tariffs that were imposed worldwide, um, on a number of countries, uh, in percentages between 10% and 50% increases. On, on, actually, I think just on, yes, on tariffs, uh, that on the existing tariffs. Um, President Trump introduced these tariffs in, in saying like, this is a, we are overhauling, uh, the tariff system and the American economy. This is going to be a massive change. Um, and the executive orders that he used to impose these new tariffs explained that there have been persistent large trade deficits, which were harming American manufacturing, um, harming Americans, um, national security readiness, uh, in terms of, of our dependence on foreign, uh, military supplies and, um, that, and, and, and overall just creating an emergency and an extraordinary and unusual threat.

Now, he had to say that this was an emergency and extraordinary and unusual threat because he is imposing these tariffs under IEEPA, which is an emergency law, uh, that is for, that allows the president to use a range of economic sanctions, um, in situations that are both a declared emergency and an extraordinary and unusual threat.

So IEEPA has been used in the past, for example, to impose embargoes. Um, the most famous instance of its use was in the Iran, Iran hostage crisis in the seventies when, um, the United States or the President set up a, uh, actually a whole claim claims tribunal system under IEEPA for dealing with, um, for dealing with, uh, Iranian assets, um, in, as part of an effort to get the Iranian hostage, the, sorry to get the hostages back. Um, so IEEPA is an emergency statute. One of the emergency powers that it gives the president is the authority to regulate importation and exportation. President Trump and the government interpret that phrase, that, that phrase to mean, uh, tariffs.

The idea, the, their argument goes regulate importation. What does that mean? Well, one of the most obvious ways to regulate importation is to impose tariffs. And, um, yes, the statute does not in any other way refer to tariffs. There are no limits, for example, on, uh, the tariff authority. There’s no minimums, there’s no none of that.

But, um, the idea is there’s lots of other major powers being given under IEEPA, including, and this is undisputed, the authority to impose embargoes on trade altogether. And so the, the theory goes regulate importation is a broad power for use in these emergency situations. The challengers allege a number of things, a number of problems with this.

One of the problems is that regulate is a word that is actually used over, uh, a thousand times in the US code, and it is not used to refer to taxation. So you all remember from back in the day, by back in the day here, I mean the American Revolution. Um, we fought, uh, a whole war about taxation and therefore, um, the framers treated taxation differently from regulation.

So the very first clause that imposes that, that grants powers to Congress, grants Congress, the power to tax and the power to impose duties, which are like tariffs, right? So, um, separately you have to go down three more clauses before you get to the power to regulate. Okay? So separate, separate regulation is separate from taxing.

It’s separate from tariffs. So a statute that says regulate importation and the views of the challengers does, uh, including me, does not mean, um, does not give the, the authority to impose, uh, tariffs. Uh, there’s a number oth of other arguments if you, even if you don’t buy that one, is that this is not an emergency or an extraordinary and unusual threat.

I think that actually on a kind of common sense level, a lot of people have that intuition. While like the president needs broad powers and emergencies, maybe he needs the, the power to impose tariffs. But, you know, if he’s saying there’s a large and persistent trade deficit, maybe that’s not really an emergency.

But the Supreme Court has been understandably nervous about second guessing when the President says something is an emergency because, uh, the Supreme Court doesn’t know anything about foreign affairs. They’re wisely in this one area, aware of their own, um, their own fallibility. Uh, they’re also really afraid about telling, um, district courts that they can, uh, second guess the president’s emergency authorities, because, you know, in a legitimate emergency, if the president needs to do something, what you would not want is some, is a district court immediately stepping in and, and, and barring it.

And again, you have to, to imagine a, a, a genuine emergency. So that’s probably the most common sense argument, but probably has practical problems. We also point to a range of other specific tariff statutes that control here. And, um, if you’re law students, you’ve probably learned many times about the specific controls, the general canon.

So even if you think that IEEPA gives some general tariff authority, the more specific statutes, um, that that control in these particular circumstances and have actual limits on the tariff power, those should control. Plus, if you just look at those tariff statutes and they’re all specific, and if you look at any tariff statute in the, in the statute books, you’re gonna see specific limits put on it.

It starts to suggest that maybe IEEPA, this general statute that doesn’t refer to tariffs and doesn’t in fact put any limits on, isn’t really be, shouldn’t really be used for tariffs. And then finally, the nondelegation doctrine. That great doctrine that the, was probably, is probably dead, but who knows, um, which says that you, the, the, that Congress cannot give away all of its legislative authority.

The argument is if you interpret IEEPA to give away this tariff power, um, without any limits, then you’re basically giving the president the power to impose tariffs and taxes, which is Congress’s authority alone. So that would be a non delegation problem, the government’s main response, other than to say, come on, regulate importation.

That sounds like tariffs is to say this is foreign affairs. In the foreign affairs context, we have always interpreted the statutes broadly. We’ve always thought that the president should enjoy broad powers and you, this shouldn’t be any different. I expect to kind of hear, uh, a lot of sounding on the, you know, implicit sort of, this is Trump derangement syndrome.

Don’t look at, don’t, don’t kind of make a decision that’s going to impose limits. On, uh, the president, the, the, the powers the president needs in real emergencies based on your view that this president is abusing it in this particular circumstance. But I am hoping that, you know, we can, um, carry the day with plain text.

And then I should also mention major questions, doctrine, the idea that like no president has ever used IEEPA to impose tariffs before. And, um, the court has been very fond of late of saying that Congress doesn’t hide, uh, elephants in mousehole. And, um, this really looks like, um, an elephant in a mouse hole if you find the power to over to rewrite the entire current economy, um, in this statute that’s supposed to be for foreign affairs emergencies.

I mean, one question I have for you, Colleen, on this because, uh, it’s what you brought up right at the end there where I was wondering if major questions was gonna come up in the discussion. I mean, one interesting thing going on at the court right now is what is the major questions, doctrine, when do you apply it?

And Justice Kavanaugh has, I think, the most interesting recent concurrence. On when he thinks the major questions doctrine should apply and when it should not, and when he thinks Congress would naturally think it is giving the executive untrammeled power and when you would think that they wouldn’t think they’re giving the executive that sort of sweeping power and trying to key the major questions doctrine to substantive areas of law.

And it seems like in his archetype, taxing would be the kind of thing that would be a major question because that’s not the sort of thing you would think that the executive can do in a plenary sense without Congress, but foreign policy and interrelationships with other nations is Brett Kavanaugh’s, number one thing that he thinks the executive is being given broad grants of authority to do so.

I’m curious how you think, you mentioned major questions, but I’m curious how you think tariffs will or will not teach us things about how to think about the major questions doctrine going forward. Yeah, I mean I do think that not Justice Gorsuch, who, I think Justice Gorsuch has a view of the major questions doctrine as a functionally nondelegation doctrine.

So it’s kind of, it would be unconstitutional for, um, Congress to grant large amounts of power. So if we think that like a statute is granting these large amounts of power, it’s as a constitutional matter. It just can’t, so we won’t, you know, the statute is unconstitutional to the extent it does that. I think that the, the, the kind of Justice, Justice Barrett, Justice Kavanaugh, and Justice, and the Chief all think of major questions as a statutory interpretation, canon as, as, as exactly as you’re describing it.

Kind of like where would it make sense to think that Congress delegated tons of power? And in that sense, you know, I, I, I think that that’s the role it, it has to play here. And it does depend whether they are thinking of this as a taxing case or a foreign affairs case, and whether they really buy into the idea that, um.

Even when we’re talking about taxes, if you’re talking about taxes on imports, whether that actually, like, it doesn’t even matter that it’s taxing because, because foreign affairs taxes still implicate that broader power. So Curtiss-Wright, which, um, I recently heard someone describe as Curtiss-the government is always right– in, uh, foreign affairs context. Curtiss actually refers to tariffs in part of, uh, as part of that. And so, you know, I think it depends, to me it’s very obvious that, that because the first clause is giving Congress that power and is expressly referring to tariffs, not just taxes, not just, you know, domestic, the domestic realm. It has to be that Congress wouldn’t just give away those, that power.

But, you know, the Supreme Court has disagreed with me before.

Um, uh, well, thank you. Uh, we will all be tracking that case. 

Uh, Jeremy, do you wanna take a minute and talk about the, the, I guess the, the couple of cases about presidential removals? And I’ll flag for folks that we’re gonna cut off wherever we are at 6:10. I have been told we are cutting things off so we have time for questions.So start to think about what you wanna ask because we’re gonna, uh, have at least 20 minutes of questions.

Yes, we are most interested in your questions and it will make for fun back and forth. We’ll be really off the cuff. Uh, two thoughts. 

So one, as you’ve already discovered, I am your friendly neighborhood emergency docket man, and so I’m back to the emergency docket and back to the new ways to think about the emergency docket.

Thankfully, for the first time since I’ve spoken, I’m not talking about a case that I have litigated in any way. So I think, I think biases are less likely to creep in here. So, uh, there are two thus far, major removal cases at the US Supreme Court for this term. There is the question in Trump v. Slaughter about whether the president can remove members of the Federal Trade Commission, and that squarely presents an issue that the US Supreme Court has been thinking about taking about for a very long time. Maybe not since the American Revolution, but you know, back in a more recent day, it has been thinking about whether and when to overrule the seminal decision Humphrey’s Executor that allows for removal protections for members of multi-member boards in the executive branch.

And, uh, I I, I’m probably not gonna like fully predict everything that happens in all of these cases, but there are, you know, if we think of like four major, uh, Trump cases so far at SCOTUS are about to be at scotus, I think tariffs is hard to predict. We’ll talk about Lisa Cook, which is hard to predict. I do not think the other two are that hard to predict.

Um, I think the Trump administration is very clearly going to lose birthright citizenship on the merits and very clearly going to win Trump v. Slaughter. And I don’t think I get any points for those predictions ’cause I think basically everyone agrees. So on Trump v. Slaughter, I think it shows two interesting things.

One, this US Supreme Court has been very willing to overrule precedents that it thinks are sufficiently wrong, and that the main check on whether and when it will overrule precedents is whether it grants cert in the first place. Because once it grants cert, most of the other stare decisis factors have become overcome by the sense that the decision was truly wrong enough.

And so I think there are a number of precedents likely to be safe for some extended period of time because the court is unlikely to wanna return to the question and just isn’t gonna grant cert. But once the court grants cert on a question of whether to overrule it and you can feel confident that they strongly wouldn’t have decided it the first way, I don’t think the other starry decisis factors in any way hold them back from making that decision.

And so once they granted Trump v. Slaughter, and they granted certiorari before judgment. I think the writing is very clearly on the wall for how that one’s gonna come out. I will also say from a procedural perspective, it makes total sense that it was a, uh, before judgment in the way that they granted here, because there’s binding us Supreme Court precedent, no one else is able to hold that Humphrey’s Executor is no longer good law. So if someone’s going to hold Humphrey’s Executor is no longer good law. It has to be the US Supreme Court. They have to take it, they have to confront the question. Again. We can have a, you can have years of discussion about the merits and, and the costs of stare decisis.

I’m not gonna run through all of it here, but I think it is very clear that they’ve taken this for one reason and one reason only. I think the Cook case is very different. I think the Cook case is very interesting, very challenging and shows the way advocacy is shifting on the emergency docket, even in just the months since January and February of this year.

So the Cook case is interesting because this is about removals for the Fed and. The, uh, Supreme Court, I’m gonna forget the name of this particular order ’cause there were a series of removal related Supreme Court orders, but in the, the Supreme Court made very, very clear in an unrelated case about removal from another agency that they thought the rule would be different for the Fed.

They just said it, no one was debating it. And that particular case, and that’s how you know, the Supreme Court really cares about this. And the, the dissent makes fun of it and sort of calls it a bespoke exception for the Fed. But I strongly doubt the dissent. Once, uh, Slaughter comes out the other way, I strongly doubt the dissent will resist going along with the bespoke exception for the Fed.

Um, it’s, it’s a device for pointing out the problems with the decision in slaughter rather than, uh, a desire for the liberals to allow for removals from the, uh, Fed Governors. And it’s interesting because Advocacy’s really shifted as that case has gone on to Easha’s earlier point about, uh, shifts in cases on the ground, the Trump administration as in birth.

Has decided not to like, stake the end-all, be-all fight on whether there’s like plenary removal, vis-a-vis the Fed. Instead, the United States says we are accepting for these purposes. We can only remove Fed Governors for cause, but we think we have for cause here. And also we basically think you have to be completely deferential when we think there’s cause which gets you kind of to the same place, which is if you could ever review the president finding their cause, it’s not exactly what you would normally think of in the corporate setting as for cause removal obviously.

Um, but they say we’ll accept that it’s for cause removal. Then the challengers respond and the DC circuit and a concurring opinion by Judge Garcia accepts that. Okay, well if you’re accepting that, then we have a narrower thought too. Yes, we have an argument that you can review for cause even when the president finds it.

And that, um, to Colleen’s point about tariffs earlier, you should review the president’s fact finding, which is something the court has been openly quite nervous about. For many years. So yes, you can do that, but also you don’t have to, you can just say, well, if you need fact finding, then you need process.

Because if the president’s gonna find facts, you need to give process to the person that’s being fired to explain why he’s about to make the wrong factual call. And so everyone in interesting ways recognizes there’s a really sensitive area for the court. It’s clear both parties are not sure how it’s ultimately gonna come out.

And so the United States is making its narrowing pivot and the challengers are responding with their narrowing pivot. And it shows the way the emergency docket, everyone realizes you’re gonna get some seismic holdings. You’d better if you’re gonna try to win out in an area, you know, the court’s uncomfortable with, give them the path they think they can do the least damage in an area they’re nervous about.

And that’s, I think, what Cook is showing us in real time. Uh, so interesting. I agree. That’s a, uh, I’m very, very curious to see how that argument goes. Um. I thought I’d just take the five minutes at the end to review one of the huge cases on the docket that is not a “versus Trump” case. Um, but that is gonna have pretty seismic implications for kind of the way politics is done in America.

Um, so Louisiana v. Callais starts as a pretty traditional kind of section two of a Voting Rights Act case. So section two, uh, prohibits election practices that result in the denial or abridgement of the right to vote on account of race. Um, layered atop that over the past few generations, courts have kind of constructed a series of tests to figure out when this is happening, specifically in the redistricting context, cases to come to court. The challengers typically say some version of, uh, when you were drawing your sort of congressional district, let’s say. Um, you either tried to pack a bunch of, uh, voters of a particular race into one district, so they couldn’t have influence over more than one congressional representative.

Or you tried to what’s called crack the voters. That is you try to spread them out across so many districts that they don’t have sufficient electoral influence anywhere to elect the representatives of their choice. Um, and the court has said that the way you make out these claims is you first do what’s called the jingles factors, which is basically figure out, uh, whether there’s kind of racially polarized block voting.

Then you look at what are called the senate report factors, which is sort of a totality of the circumstances inquiry, where you look at kind of a history of discrimination, um, uh, uh, through to kind of the use of racial appeals and current politics. Um, so there’s this whole kind of apparatus that’s grown up around this, this kind of super statute.

Uh, so Louisiana loses one of these section two cases and so it has to redraw its map when it redraws the map. Non-black voters, that’s sort of the term that they use for themselves, come into court and say the redraw map, right? The one that was drawn to comply with section two of the Voting Rights Act over indexes on race and therefore violates the equal protection clause and comes to the court, court hears argument, and then somewhat ominously over the summer.

They ask for reargument ominously because the court basically does this in two situations. Situation one is where there’s a four four court. So, um, you know, after Justice Scalia passed, there was an interim before Justice Gorsuch got on the court. They ordered some rearguments when Justice Gorsuch got on the court, uh uh, because they were tied four-four, and he’d be the swing vote.

Sometimes it doesn’t for that reason. The other reason it does it is because it, uh, has a theory, uh, often a, a theory that no one is raising in the litigation that it really, really, uh, thinks is the right one. Uh, so Citizens United famous example of reargument, right? Um, so, uh, question is re argued on basically whether the Voting Rights Act, uh, violates the equal protection clause of the Constitution.

Um, dominant theme and argument. Um, I think it’s dominant. It could just be the Justice Kavanaugh asked this question like seven different times, so it seemed very dominant. But I think the dominant theme and argument was, um, basically the question of expiration date. So Court sort of says, uh, uh, you know, in cases like Shelby County about a different provision of the Voting Rights Act, uh, kind of says, you know, this is relying on stereotypes about what the South was like many generations ago, so it’s unconstitutional. 

In Students for Fair Admissions, which was a case that struck down the affirmative action programs at Harvard and the University of North Carolina. Um, uh, oral argument is dominated by this talk of, you know, 23 years ago there was an opinion that said that in 25 years, we hope the race, the use of race conscious admissions will end.

Um, so Justice Kavanaugh kinda asks over and over again, both the NAACP Legal Defense fund lawyer and the various folks saying that this is unconstitutional. Like what’s the end date? Um, and you know, the NAACP lawyer basically says three things. She says, um, first look, section two, this whole analysis. Um, it relies on facts on the ground today.

So. It will sunset when racially polarized block voting sunsets, right? The first thing you have to show is this prima facie case. People are segregated on the basis of race, on our, uh, uh, that minority voters are unable to elect the candidate of their choice. So when that stops happening, this will sunset automatically.

Second thing she says is, look, when you prove the violation of section two of the Voting Rights Act, all you’ve said is that this map is no good. Section two doesn’t tell us anything about what kind of map the state has to draw in response to that. Um, and so, you know, a state can redraw a map without taking race into account just so long as it doesn’t engage in these forbidden practices to try to dilute the votes of minority voters.

Um, uh, and the third thing she says is, look, Students for Fair Admissions is quite different because they’re the compelling government interest, right? The reason you were allowed to be race conscious in the admissions process was this idea of diversity in the class. Here, the basis on which we’re allowing race consciousness in some instances has to do with remedying specific racial discrimination.

And even in Students for Fair Admissions, the Supreme Court told us that that’s okay, that’s an okay use of race. Um, so we shall see what happens. I think that the, the stakes of this are quite big. So whether or not you think that section two of the Voting Rights Act is a good idea, whatever you think of the court’s current redistricting jurisprudence, um, the way that, you know, our House of Representatives is comprised turns to some extent on this case.

Uh, so an argument, the NAACP pointed out that every uh, uh, black elected representative, including the justices of the Louisiana Supreme Court in the state of Louisiana comes from a district that was drawn specifically to comply with the Voting Rights Act. Right. Some analysts say that we’re talking about 19 seats that would shift from Democratic to Republican control.

If, uh, voting Rights Act compliance wasn’t mandated in the same way, um, and, you know, in a lot of years that’s control of the house. So, uh, even though this is not a case about the president, I think it’s one we should all kind of be watching because it will have big implications for our politics and for the upcoming elections, whatever the outcome with that ballot day would do.

Okay. On time. Okay. With that, we’ll turn it over to the audience to, for questions, please line up at these two microphones and then we can go one by one.

Come on down.

Thank you so much for being here today. Very interesting. The question I have relates to the tariffs, uh, case and in particular, the justification of the administration is partly based on emergency and partially. Based upon the traditional deference, I guess, of the courts to the presidency as, for example, in Curtiss-Wright.

But as an emergency, it’s something that’s kind of dragged out and the whole process is taking a long time. And part of this is also based upon negotiations with other countries. And of course the treaty power is one that’s given to the president as well, but subject to the ratification of Congress. So my question is, in this context, if the Supreme Court seems to be inclined to disapprove, either in part or in large measure what the administration has done, what do you assess the probability that they might stay the action of the Supreme Court, uh, stay the action of the court for a period of time to permit Congress to ratify the decisions of the presidents as, for example, uh, the Supreme Court did in 1982 in the Northern Pipeline case about the constitutionality of, uh, judicial powers, uh, in, in that case.

Yeah, that, that’s a, that’s a great question. And I have to say that, um, remedy is not, uh, an issue that we had focused on very much, in part because, um, just, just of a, the procedural of a procedural court, the federal circuit, which re, which issued the only merits decision we have from a court of appeals, it agreed with us on the merits, but it remanded on remedy because it thought actually that, uh, the nationwide injunction in our case was too broad.

I don’t know why. They just used logic like no uniformity is required. Um, anyway, uh, and actually no one has litigated. Um, what is a really a question that, that is on the minds of a lot of people, which is what about refunds? So the, the short answer is that’s not really, you know, um, that just has not really been a piece of the case.

Certainly, I think one, like the government would, would they consider that, uh, you know. I, the a 45 day stay, I don’t know. Nobody so far has been talking about it. Um, the, the government actually said they would pay refunds. Um, uh, I, I think, you know, it’s not a part of the public case, so maybe I’ll, I’ll let you two.

Yeah, I’ll jump in. Just to say, you know, in the, in the birthright context, it was super interesting. One of the things that the US represented in that case was they would, if they won, be willing to wait 30 days to avoid chaos on the ground. And you could see the US Supreme Court asking similar questions.

Like in casa last term, we said our, uh, our opinion would not take effect for 30 days, so things could play out in the ground. As Professor Goldsmith has pointed out, that is a universal injunction, even from the Supreme Court. Uh, it doesn’t have more authority to issue universal injunctions than others.

So when it said it won’t take effect on representation for 30 days, it was a form of universal injunction, but you could easily see given how disruptive, like if, if all tariffs went away tomorrow with, with no warning, you, you could see the court having some practical concerns. I think it’s quite possible that the US has promised to pay refunds to show that it would be disruptive to take away their authority at this point.

Um, so it wouldn’t shock me to see some questions and argument trying to explore what would happen in that case, although that argument has so many. Hard merits questions that everyone is going to get that using your, your scarce argument, time and oxygen on, how long it should take after is something that probably only comes up late in the argument ’cause they’re gonna have their work cut out for them and asking all the many questions on the many topics Colleen had to work through in just summarizing the case while we’re waiting for the next question, which I hope is forthcoming, oh, we’ve got, okay, go ahead.

Sorry, I was hiding. I didn’t mean to, uh, I have a question about CASA and I almost think you shouldn’t answer it happily. Absolutely. Not necessarily for like confidentiality purposes, but because like, I feel like, you know, it, it, it’s, I just, I was in the position of having, uh, to read that through and I find that opinion endlessly confusing and I’m not quite sure what’s going on and I’m interested in the role that history is playing in it, those sorts of things. But I was wondering, you, uh, you mentioned one, like a bunch of caveats that need to get answered in the next few years that are gonna determine its scope. And I was thinking about how many, uh, equitable decisions aren’t enforced under the judicial act too. Like, uh, one of them is that, uh, like for example, the Clayton Act allows you to enforce, uh, antitrust statutes, uh, like outside of the jurisdiction of, of, of the particular district court judge.

And I wanted to know what the fact that those, uh, other statutes don’t seem to be affected by stat, uh, by CASA, seem to tell us about CASA, about it’s, uh, I think one thing that’s dubious about cost is it feels as if it feels like it’s a solution for this presidency or for the particular moment in front of us.

And I think that tension between, uh, its ruling on that statute and on others, um, might lend themselves to that sort of suspicion. But I know, I probably know what you think about CASA is what I’m trying to say, or what the other people, I want all the people to answer. I, I guess what I’m trying to say, uh, feel cold called.

You wanna go first and we can uh, I, I, I’ll go first briefly. Which, which is to say I actually think that the timing in the case in which the Supreme Court chose to issue this ruling has all sorts of complications because of what the merits is of birthright and how quickly they did it into the new administration.

But I don’t think this came just from Justices thinking this as a bespoke solution for President Trump. Like Justices Gorsuch and Barrett and Thomas were on record during the Biden years, that they had problems with these reliefs now query why there weren’t more orders in that time, if that reflected their view.

But they were on record previously. And I think, I think Colleen said something about this earlier, but I think they do sometimes think that the challengers are so focused on Trump and they’re trying to write for the presidency for all time. And so I think they think that the cost opinion is not a solution for Trump.

I think they think it is the correct response to the like institution of the executive writ large. Um, but I think a really important point you’re making, which is totally correct, and this this really did come up at oral argument, is that they know there are statutes that adopt universal forms of relief.

The administrative procedures act, certain types of, um, nationwide review schemes, uh, the Clayton Act, et cetera. And they specifically and Conspicuously wanted to avoid that because if you’re gonna strike down those statutes only come up if you’re gonna make a holding on Article three that federal courts lack this authority constitutionally rather than under the Judiciary Act of 1789.

But if you do that, Justice Kavanaugh can’t sign on because he is on record with an opinion that you can do this under the Administrative Procedures Act. So he can’t agree with the article three constitutional holding, and no one knows what the chief thinks. And so it is quite possible there isn’t a majority of even five.

Certainly there isn’t of six. To say that the constitution forecloses it, so then you just have to work with the statute in front of you and you have to leave for another day. Those other questions, so it’s a little bit path dependent in that they can’t resolve the APA question. They have a footnote saying, we’re not gonna get to the APA question.

But if you’re not gonna solve the APA question, you can’t decide it as a constitutional matter. So you have to leave other statutes for another day. But I’m curious for other folks takes on this too. Uh, yes. I’m gonna totally plagiarize one of my colleagues, Mila Sohoni, who is sort of, as Jeremy knows, one of kind of foremost experts on this.

Um, her take on this is actually that casa is gonna be, it’s gonna not have major repercussions for universal injections specifically. It’s actually gonna have its ripple effects outside of the context of universal injunctions. Part of it is sort of exactly what you’re saying, which is like. Um, I think for a long time everyone sort of said like, well, if it says equitable remedies and statutes, equity changes over time, that’s the nature of equity.

So, of course, like that means basically whatever courts want and the, and the Supreme Court seems to say like, as a textual interpretation matter, when a statute says equity, it means equity at the time of statute is passed. Um, it matters particularly under the kind of the judiciary act, um, because Mila kind of points out that, uh, Ex Parte Young right?

That, or sort of what Ex Parte Young has come to be known as. So Ex Parte Young is sort of the case that says you can, you can’t sue a state directly, but you can sue an official in the state in their official capacity and get them to do something. There is a tradition of what were called anti-suit injunctions.

So that is, you could sue the individual and say, you can’t prosecute me under this law, or you can’t do x to me. There isn’t an equitable tradition of, for instance, you have to take an affirmative step. You have to desegregate the schools, for instance, right. Um, and so if we think that, uh, CASA really means what it says, the equitable powers given to the court are frozen, uh, based on what equitable remedies were available at the time the statute was passed.

Um, I think you have a lot of issues in a lot of other areas, partly under other statutes, but even under the Judiciary Act, um, you know, like a lot of the business of civil rights litigation of the last two generations has centered on the assumption that a set of remedies are available to courts and they’re kind of equitable powers That CASA really calls into question.

I mean, I, I, I, I definitely do not think this is a bespoke solution. I think that like the, I mean, you know, having worked in the government for the last six years, you know, like, it doesn’t matter, the administration, they never like, uh, universal injunctions and I, and, and so I, I, I, I, I think this doesn’t have that valence.

Um, the other piece that I’d say is like, I think that that opinion’s hard to follow too. I’ll say that. Um, I, because of my knee-jerk government attorney reaction, I was like, obviously, uh, universal injunctions are, they’re going down. And my husband, um, who’s also a lawyer, uh, and I were in the car, he was also a government lawyer, and we were, we’re talking about this and we’re like, yeah, they’re going down.

And then we start talking about like, oh, but what about this? Oh, well, they’d have to be okay in that situation. And then we’re like, well, and what about in there? We’re like, yeah. Then they’d be okay. Then they’d be okay. And we just kept coming up with. Why they couldn’t actually have the blanket rule. And at the end of the conversation we were both like, Ooh, this is kind of like hard.

And I kind of wonder if the Supreme Court went through the same process where they thought like, finally we have a vehicle and we’re just gonna say no more universal injunctions. And then, you know, these, these doubts crept in. And, and, and it became really hard to write a clean opinion because it’s just a messy, messy issue.

So about that, and just to go to my theme, that only happens because of procedural regularity. You get full briefing on the question, you grapple with what’s hard. You hear all argument. You ask all these questions, you write an opinion and then write an opinion. And you’re like, God, this is hard. And, and I, well, Mike, small counter on that is that I think we have to be careful about fake procedural irregularity.

Like I do think when you have a full oral argument. On an, in an emergency posture, often what you are still getting is, is briefing that was written in like two weeks and, uh, judicial clerks who’ve been thinking about it for like three weeks. And, but now they are saying, well, I mean, it’s just true. That’s not a knock on anyone.

It’s just like these cases come up, they have to be decided right away and people want full process. But once you have the full process, I think it does, it does become like this is, this is like a fully measured and thought out decision. Um, and, and I just think a lot of the time because of, because of the, the need for speed, it’s not, and it makes me nervous.

To have like the oral argument and say like, now we did it, we did all of this. When, when really there’s so much more that people just haven’t had a time to think about. I think universal injunctions, that is an issue that’s been kicking around for, you know, just years and years and people have been thinking about it for years.

But a lot of the questions that the court is facing right now are huge and they’re novel and they’re difficult and like, I’m just not, I really feel for the court because I don’t know how they, how they can decide these in a way that is, you know, fair and equitable, but also respects the need for speed.

I think it’s really difficult. Can’t be always, can’t be never. And this is right, this is Justice Gorsuch, and it’s to TikTok concurrence. That is a case where they do expedited briefing, the whole argument and at the end it’s sort of nine zero to uphold the law. But Justice Gorsuch writes this concurrence.

It’s like, I mean, I guess, but I really would’ve liked to have some time to think about this. Right. Thanks for answering the question. I just wanted. We went very far afield from the question, but hopefully it’s an answer somewhere in there. So, so I thank you so much for, for the discussion. I have a question about a case that you guys have not discussed that is about, is in the doc in the emergency docket thing.

So a bit of background. So I’m a naturalized citizen and I voted for Trump few times, and yet I’m deeply concerned about the case that originated here in California that actually essentially you can be racially profiled if you’re speaking a certain way or something. And it wasn’t. So, actually it’s the first time that I feel a need to have my copy of my US passport just in case I, so the question is, we’re always carrying that with you, right?

No, yeah, yeah. Going around. Right. So is this something that is a one-off for that particular case in LA or is, uh, sets a precedent for right now it’s okay to essentially profile in the context of immigration enforcement. I’ll take a crack and then I’m curious to hear your thoughts. Um. I think that this is a case that, uh, shows some of the dangers of the emergency docket, and in particular, this is a case that shows some of the dangers of the Supreme Court doing its own kind of fact finding.

Right. So if you read the kind of Kavanaugh concurrence mm-hmm. It maybe sounds like it’s something specific to LA, sort of has all this rhetoric about things in LA um, uh, but then when you read what the district court found and what the dissenters say, it sounds like there’s really nothing specific to LA about this case.

Right. Um, and it turns out some of the, the, the things that Justice Kavanaugh says are contrary to some of the things that District Court says, even the things Justice Kavanaugh says. Right. Which is basically like, um, there are a, a lot of that’s like he says a lot of, at some point in the opinion. Right.

He says that there are a lot of people who are, um, uh, uh, undocumented in Los Angeles, like, doesn’t give us a numerical threshold. It’s actually, it turns out to be like a pretty small percentage of Los Angeles. Mm-hmm. Um. So I guess I would say I, uh, I think that Justice Kavanaugh thought he was making a ruling about la I don’t know how it gets KA to LA.

Um, and so that’s like n neither, not, not particularly helpful, but just I would not put that away. Yeah. It’s very sad actually. I mean, I, I, that cases, that cases, um, I agree a great example of the perils of the emergency docket, but I’ll, I’ll, I’ll say something different about it. So that case was, was always going to be hard for the challengers because of, uh, a procedural issue, which is that there was well established doctrine around standing that made it particularly hard to challenge law enforcement search policies that you couldn’t show sufficiently were gonna be applied to you prospectively.

That’s been the law for some time in a case called Lyons. And so it was understood, I think that the challengers were gonna have a hard time on standing and on the fact that they got a class action in that case, um, because it kind of turns on the different facts that that might be applied to you. And I think what surpri and, and what surprised a lot of folks was that Justice Kavanaugh could have stopped there and chose to go further and talk about the merits of this policy when, if he’s right, that there’s no standing, there’s no re the court mm-hmm.

Should not be talking about the merits in a case it finds no jurisdiction to reach. Um, and I think it was, it was difficult for a lot of people because among other things, no one knows if he’s means to be speaking for the court and himself is frustrated. The court is not sharing views. I mean, Justice Kavanaugh is one of the justices who is most vocally saying, we should be explaining ourselves active and often, uh, on the emergency docket.

Now, it’s helpful when you’re one of the swing justices to say that because they mostly reflect your views compared to others. Not always, but often. More often. And, um, and so it’s easier to say, we should be explaining ourselves when they’re your views, but no one knows because the court doesn’t explain if it’s just doing a standing only it has issues with the policy, but it thought there wasn’t standing.

Mm-hmm. And there wasn’t an appropriate class and what have you. Or if there are. Five or six justices who agree with everything in that concurrence. And that’s one of the things that I think has frustrated folks about the emergency docket is this weird combination of one justices views and you have no idea who to attribute them to and why it went into the merits when there was a standing issue all along.

I’ll just say that even if it’s just the standing issue, that’s still pretty devastating for kind of checks on police. Um, so it is, as Jeremy said, it has been true for many years. This case, Lyons was a case about a choke hold policy in the Los Angeles Police Department. Supreme Court said, um, you don’t an up standing person who was subjected to a choke hold to challenge this because, um, who knows if this will happen to you again, in this case, the challengers compiled evidence of multiple plaintiffs who had multiple times themselves been arrested, right?

So they could say with some certainty like this has already happened to me twice. I have, I think it’s likely to happen again. And they had some concrete harms, right? So in Lions, this prior case, the court says, well, you haven’t had to change anything about your behavior to avoid being put into a choke hold.

You’re going about your business. And the challengers here said like, no, we’re not. Right? We’re, we’re having to carry around a copy of our passport everywhere we go. Yeah. Um, and so I think even if it’s just a standing opinion, even if nothing else that Justice Kavanaugh said stands for the view of the court, it will change dramatically the ability of civil rights practitioners to try to constrain any sort of law enforcement conduct.

Because I think it goes significantly farther than lions. And I think that alone will mean that there’s more unchecked police and ice enforcement. Thank you all three for the question. Last question. Thank you. Uh, this question may be a little bit different, but I think it’s interesting, especially for the students and the non-lawyers in the room.

You were all, uh, clerks to Supreme Court Justices. Can you talk a little bit about what the role of the clerk is, your interactions with the justices, your. Influence or lack thereof on decisions and just sort of demystify that process for those of us who have never been Supreme Court clerks. Yeah, and actually you’ve got a pretty, I think, a, like, pretty good cross section of the role of the clerks across the three of us.

Um, I would, I would like to say, um, I dunno, Colleen, do you wanna start? We can go online. Um, sure. Uh, so I, I clerked for the chief, um, uh, and uh, the, one of the great things about clerking for the chief was there were no bench memos. Um, the chief did everything, um, orally. Uh, so we spent a lot of our time talking to the chief Justice about, um, all of the cases in front of the Supreme Court at the time.

Uh, and I think, you know, the role of the clerk in the chief’s office is sort of, um, sounding board researcher. Uh, he, you know, I, I think I have always said that the chief is, is an amazing boss. And he really was, uh, he trusted us and gave us a lot of, um, autonomy and he let us know that he was, was listening to us.

At the same time, he made all of his decisions himself. I mean, I think I was seeing, saying earlier, anybody who says that like they were responsible for their justices opinions is, you know, I think suffering from delusions of grand grandeur. Uh, you know, I, I actually, when I was clerking, I remember thinking, why did they hire me?

Because I don’t really know that much about the law. And they could be using like, you know, practitioners who’ve been in, in practice for a long time and actually, you know, would have useful knowledge. But I think that’s the point, right? You’re, you’re taking a young lawyer who, when you’re dealing with them and you’re a justice and you’ve been dealing with the law for, for decades, you’re not gonna be.

Get, get confused and think, oh, let me let this, you know, person who just graduated from law school make all of these important decisions, not me. I trust them. Right. And it’s, it’s a useful check in that sense. But I do think you’re like a, a fresh voice. You are, um, you’re your research, but you’re also, you know, a different take, a different perspective.

Um, you know, I think something I really admired about the, the, the chief, and I think the justice is just, is he, he really listened, he did not always agree, or maybe not most of the time agree with what I had to say, but I felt like he really listened and that, and what I was saying went into his, um, decision making process.

Uh, so I actually agree with, with almost all of that. So maybe I’ll just add three, three observations. The first is probably, actually none of us are a particularly good gauge anymore because, um. The emergency docket I would date. We can have a longer conversation about this. I think it actually sort of like the current in its current form kind of started our term clerking.

Um, but the amount of time that the law clerks now spend on the emergency docket just bears no resemblance to when any of us was clerking. So I actually have no idea what’s happening in that building anymore. How they’re sleeping, when they’re sleeping, what’s happening. Um, uh, uh, so take all this with a grain of salt.

Um, the second thing I’ll say that I think is a little bit different about the Clark and Bridge. So Sotomayor, who’s my former boss, is, um, she views her role as much outside the building as inside the building. So she cares deeply about the cases. Read any one of her impassioned dissent, and you will see that she also recognizes that in some ways her role as an ambassador for the court and an inspiration to young people is a way that she will make change that is different from what, what she writes and what she says at conference.

Um, so again, both in kind of the way she writes her dissents, right? She’s speaking to a much broader audience and the amount of time that she spends on like public appearances, like she would, you know, she’d like get invited to something and she’d be like, ask her judicial assistant to pull out the file of like, anyone who’d like written a letter to her from that town so she could invite them to the event, right?

I had the pleasure of going with her to these events where she’s treated like, like a rock star. Like people cry when they like reach out to touch her. Um, and so it was a really interesting lesson for me in, as someone who thought about a judge, like, your source of power is like what you, your, the votes that you cast in conference to think about, to work for a justice, who really saw her role as much broader than that.

About inspiring people, about being a voice for the court to, to on, on behalf of people who didn’t always have a voice on the court and, and writing and kind of allocating her time in that way. Um, and the final thing I’ll say is, um, here’s the really weird thing about being a clerk is, um, you know, all of us now practice before the court where we clerked.

Um, and it’s like a very, very strangely insular club. So Justice Sotomayor for instance, officiated my wedding, like one of the first people who met my son when he came out of the hospital. Um, and I remember the first case I went up to argue, I was talking to a friend of mine who’s a, a public defender in New York, and she was like, oh my God, if I were in front of a judge where who had officiated the prosecutor’s wedding who didn’t recuse themselves, I would be livid, right?

Um, but that’s just not the vibe. Um, and I don’t know a way to sort of justify or explain that, just to say that. I, I think one thing I hadn’t fully realized until going through the clerkship process is just how small this world is and how many, uh, deeply close ties the justices have to the advocates appearing before them.

I don’t have a ton to add beyond that. Uh, I, I’ll second what everyone is saying, which is the clerks really don’t make the decisions. The justices really do make the decisions. I felt that confidently when I clerked for Justice Kagan, and she very much wanted clerks to push back on her ideas and make them better and find holes and poke holes.

And in a case, like there are some cases that are really 51-49 cases, especially like non-ideological ones, and you can like help shape an opinion or get more caveats or nuance into a take because you’ve pushed back in a certain way. The justices are voting on their cases and the justices know how to figure them out.

And I mean, Justice Kagan is, you know, basically one of the smartest people I’ll ever interact with in my entire life. And I didn’t have a lot that I could tell her that she couldn’t figure out. But justices are also busy people and so I was plucking enough to try to keep pushing back on a variety of cases.

And so it made for like an incredibly intense and incredibly fulfilling year. But I think mostly like the clerks get to learn from the experience more than they’re really teaching the justices and look in a case that’s poorly briefed, clerks can have a valuable role in helping find things that the parties are not presenting so that the justices can make their best decision, uh, consistent with their own views and pre-commitments.

Um, but in cases that are super well briefed, the justices are perfectly capable of figuring out the case and you’re there to help implement, uh, what they’ve decided and help draft opinions for them and, and the like. So I think it’s an incredible opportunity. Incredibly fulfilling. Get to clerk with Easha is a real all time highlight for me.

But in, in reality from like the, the, the starting point of your question, it’s, it’s their world and, and the clerks are just living in it. I would also just note on the, like the, it’s a small world and like why don’t the justices have to recuse? They don’t seem to have any trouble like distancing themselves from their clerks when they’re appearing in front of them.

The hardest questions I’ve been asked at oral argument were by the chief. Who was not apparently throwing me softballs, my husband clerked for, um, Justice Ginsburg, and she just laid into me the first time that I, uh, appeared in front of the Court. So, you know, it doesn’t, unfortunately, it doesn’t, it doesn’t buy you that, um, that help that you might want.

But don’t tell Colleen’s clients that, oh no. Right. Tell my clients that I’m getting all the special treatment. Well, with that, um, thank you all so much for being here and for caring about the court, and join me in thanking, uh, Jeremy and Colleen for flying out here and giving so much of their time to Stanford.