Partner, Kirkland & Ellis; Former U.S. Solicitor General
Chief Legal Correspondent, CBS News; Author, Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court
Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center; Partner, Hogan Lovells; Former Acting U.S. Solicitor General
Legal Affairs Correspondent, NPR
Panelists discuss upcoming cases for the Supreme Court’s 2019–2020 term, and how the current makeup of the Supreme Court could affect landmark decisions.
TOTENBERG: Well, hello, everybody. And welcome to today’s Council on Foreign Relations meeting and a panel on the Supreme Court 2019—2020. We’re going to look ahead and we’re going to look maybe back, but probably ahead. I’m Nia Totenberg. I’m the legal affairs correspondent for National Public Radio. If you don’t know who these people are in detail, look it up. (Laughter.) We don’t—we have twenty-five minutes and we’re all big talkers, so. (Laughter.)
This is Neal Katyal, who’s the former—I guess, technically, you were the acting solicitor general. But he acted for a long time.
KATYAL: Still do. (Laughter.)
TOTENBERG: Of the United States. And Jan Crawford, of course, is the chief legal correspondent for CBS News, and she does politics as well. And Paul Clement, who was the solicitor general of the United States for four years, and before that the deputy solicitor general. So he was there a long time, and he’s—both of these guys are there often, they win a lot, they lose occasionally, but they’re both very good advocates.
And so I’m going to start by talking about news. There are two cases up before the Supreme Court pending, waiting for the justices to say what, if anything, they want to do with them. One is from the D.C. Circuit. And the D.C. Circuit ruled that when Congress asks for information from, in this case President Trump’s accounting firm, related to whether or not they want to pass ethics legislation that would require the disclosure of a president’s taxes. The D.C. Circuit said, yes, you have the right to do that because it’s in the course of legislation.
And then there’s a second case from New York. It’s a state case, where—actually, it’s kind of a city case, as the district attorney from Manhattan has issued a grand jury subpoena for the same kinds of material. But this time it’s related to hush money payments to Stormy Daniels and perhaps one other person. I’m really not sure. And the 2nd Circuit upheld that subpoena for a criminal investigation.
They’re both sitting up at the Supreme Court. And the Trump lawyers have asked the Court to stop those subpoenas from being enforced. So the question now is will they grant a stay preventing those things from going into effect? There’s a short, temporary in effect now. And will they grant certiorari, meaning will they agree to hear the case or cases.
So let me just go straight down the line here—that way I’m not preferring anybody or un-preferring anybody—and ask each of you what you think they’re going to do.
KATYAL: Well, first of all, it’s great to be here with all of you. I wanted to apply to CFR, but that long application scared the heck out of me. (Laughter.) So I’m glad I got in through the backdoor today.
So, look, I think ordinarily the Supreme Court takes requests—with the president says, hear my case, they generally hear the case. I think this is one—these two cases, if I had to predict, my guess is that they wouldn’t take the cases, they’ll stay out. They’re probably pretty happy with the careful reasoning by the two lower court opinions. The Trump briefs, I think, are pretty extreme in their legal views. And so I think might be better for the Court to just stay out altogether and let the process unfold.
CRAWFORD: Which means Trump has to produce.
TOTENBERG: Or Mazars has to produce.
CRAWFORD: Right, well, but we will—
TOTENBERG: (Laughs.) Yeah.
CRAWFORD: I would say that I’m inclined to agree with Neal. You know, the last term, the firs term that Justice Cavanaugh was on the Court, it was extremely quiet. The justices kind of punted on a lot of high-profile quite controversial issues. Whether that was by design to kind of take the Court out of the conversation and lower the temperature. The justices say it’s not. This term is very different. This term they are taking up almost every hot-button issue that you can think of, that we in, you know, TV, that’s the one we cover, not the really important ones, but the ones that make the headlines are, you know, going to be about gun rights, which Paul has. They’re going to be about abortion. They’re going to be about those kind of flashpoint social issues—DACA, immigration issue. They’re all on the plate this year.
And I know that that is a real concern for some of the justices this term already, including the chief justice, that the Court not be such a part of the conversation going into 2020. There is a concern by some of the justices, including the chief justice, that court packing is very much on the minds of a lot of the Democratic presidential contenders. There is a—there is an effort to try to, again, kind of lessen this flashpoint, the Court being a part of this conversation, resolve cases narrowly where they can, no big, you know, swing for the fences opinions on some of these hot-button cases.
So be that as it may, this to me would be one where they could just take a pass on. I agree with Neal on that, and just let the 2nd Circuit decision stand. So I’m inclined to agree with Neal. But my final point is predicting the Supreme Court right now is really folly. We can’t predict the Court right now. You can’t tell what they’re—it’s too soon, too new of a court, and we once could predict based on argument. We can’t do that anymore.
CLEMENT: So I’ll just echo Neal and saying that it’s a delight to be with you.
CRAWFORD: Oh, I forgot to say that too. (Laughter.) Sorry. I’m really happy to be here too. Thanks, Paul.
CLEMENT: Yeah, no, it was implicit in Jan’s remarks.
But, you know, I was a 1988 graduate of the Georgetown School of Foreign Service. So I’ve long been a fan of the organization. I took really the long way around to get to one of your events, but it’s a delight to be here.
So I’ll take a slightly different tact, if—not because I necessarily think it but because—at least make it more interesting. I think there’s a decent chance that the Court will, in fact, take the D.C. Circuit case. That’s the one that arises in a purely federal posture. So I think that’s the one that they might be most interested in taking, and maybe sort of carry the 2nd Circuit case along with it or hold it while they resolve the federal case. I say that mostly because I think that there is something of a tradition when you have cases that involve the president in his individual capacity but raise kind of interesting issues about the extent to which there is protection for the president in his individual capacity for things that he does in his Article 2 official capacity. Those are cases that historically the Court has taken, even when there hasn’t been a circuit split.
If you go back to the famous Clinton v. Jones case, you know, the Court took that case involving President Clinton’s immunity from a private Title VII suit that arose out of an incident at the Excelsior Hotel when he was Governor Clinton. The Court took that case up, even though there wasn’t a circuit split. I think a lot of people, because the Court took it, got excited about the prospect that they might be creating some immunity that protected President Clinton. And in the end, they decided nine to zero against the zero. So I think this is a context where the Court, almost out of deference to the institution of the presidency, might take this case. But I think if they did it would be a mistake to view the fact that they took the case as a precursor to them ultimately ruling in favor of President Trump. And I think in that respect the Clinton v. Jones case may be a little bit of a predictor as well.
KATYAL: The one thing I’d say, maybe a slight pushback on that, is, Paul, I agree what they care about the institution of the presidency. But their overall, and particularly this chief justice’s concern, it seems to me, overall the institution of the Supreme Court and the Judiciary. And unlike in the 1990s, where you had a fairly regular president who didn’t go and attack the Courts every time a decision didn’t come out in his favor, here you have a president who is very comfortable doing exactly that, including to this chief justice. And so I would think, like, maybe the better chess move is to stay out of it altogether and not invite that backlash against by the president—by the president.
CLEMENT: Yeah, no, and look, and I could—I could make the counterargument, though, that actually since in the normal course the Court might grant cert in a case like this, the best way to try to reassert normalcy, if you will, is to take the case, because that’s what you would otherwise do, and then rule the way that you might otherwise rule. And I think if you look at the Court’s precedents, you know, the president’s argument is a tough one. Maybe an uphill one would be the right way to describe it.
CLEMENT: And if you did all that, in the end you might send what is ultimately the message you want to send, which is: We’re going to behave the way we would handle this kind of issue at any other point in history. But we will see.
TOTENBERG: So in order to do that—again, this all occurs within the context of an election year, which makes it even more dicey. Courts—Supreme Courts by tradition, if they can, would like to avoid doing that. I’m not sure that tradition still exists, but certainly Brown versus the Board they postponed, in part, because there was an election coming up. And so the question is, would they hear it this term? I mean, they have to expedite it, I think, to do that. I’m not sure—I’m not one of these people who follows every jot and tittle of how many days are left for the various briefs to—that it could get in this year.
KATYAL: So they would have to expedite.
CRAWFORD: Yeah, but they could do it easily this term. And the House has laid out a schedule—a proposed schedule—that would have it, you know, with a ruling by the middle—in June. Which, of course, to your point, right in the middle of the presidential election.
TOTENBERG: Yeah, right in the middle of the election.
CRAWFORD: And in a term when they’ve already got a number of these extremely controversial social issues.
KATYAL: I can’t see them not—if they’re going to do it, I think they expedite it and hear it this term.
CRAWFORD: Me too.
KATYAL: It would be bizarre to say, oh, let’s hear it, and decide this thing in, you know, 2021. That, I don’t think—and there’s precedent for that. The Nixon tapes case, you know, when on a very fast schedule, with the first filing in the district court in April, the Supreme Court heard the case two months later, and decided it fifteen days after that. So start to finish, under three months.
TOTENBERG: So other than that, Mrs. Lincoln. (Laughter.) Could—let me start with you, Paul. You have at least two, and maybe more, of the very big cases that are before the Court. One of them is the gun rights case that’s going to be argued right after Thanksgiving—the Monday after Thanksgiving. But there’s also this very unsexy but incredibly important case involving the Consumer Financial Protection Board, yes I got that right, CFPB, which is the board that was created under President Obama, enacted by Congress, but has only—unlike other agencies, it has only one head. And although—and Justice Kavanaugh as a lower court judge wrote very clearly that he thought that that was unconstitutional, at least then.
So, Paul, is in a very unusual position. Because the Trump administration has abandoned defending the structure of the board, there’s nobody to defend it. And so the Supreme Court appoints somebody to defend it. Enter Paul Clement. So could you talk for a minute about why this is an important case, and how different it is, because I don’t believe you’ve ever appeared before the Supreme Court without a client. (Laughter.)
CLEMENT: No, I’d be happy to. You know, in a sense I feel very empowered because when—you know, this happens from time to time, usually in lower profile cases, and usually in a circumstance where the government decides that it can’t defend the judgment below, so the Court will appoint a lawyer to—as an amicus—to defend the judgement below. That’s essentially what’s happened here, but it’s a much more high-profile case. So, you know, often the—for the more typical case they’ll appoint a relatively recent law clerk to defend the judgement.
TOTENBERG: That’s not you. (Laughter.)
CLEMENT: Yeah, no, you know, kind of—so I’d really actually thought my moment had passed to get appointed for something like this. But it is empowering, because I literally have no client. (Laughter.) You know, I was thinking about, like, do I have to open up a new client matter, do I have to run a conflict check on the client. And the answer is, no. I don’t have a client. I am a court-appointed amicus. I’m sort of, like—you know, I actually told this to Nina the other day, but it’s like, you know, I was thinking about sort of the process of putting my brief together. And in every other case I’ve ever had I have to build in, like, a week to let the client review the brief. And it occurred to me, you know, I can finish this brief up thirty seconds before I file it. (Laughter.) So it’s very empowering.
Let me just try to, all kidding aside, though, say why I think this is such an important case. It’s such an important case. It’s such an important case because the specific question in the case is whether or not the removal provision for the head of the CFPB, which is a for-cause removal provision, is Constitutional. And that’s one of these things, though, it’s like—the issue in this case is like the thread on the sweater, that if you start tug on it and you tug on it hard enough potentially the whole sweater comes undone. And the sweater here really is the entirety of the independent agencies—the FTC, the SEC, the—you know, and so on. The whole alphabet soup of agencies that all have these for-cause protections. And they typically, as Nina alluded to, also have multimember bodies. And so it’s, you know, all six members of the SEC that have for-cause protection and the like.
But there are a lot of institutions in this town that are very familiar to the operation of government that have these for-cause protections. They’re the ones I’ve talked about. You know, this is a great place to have this discussion because I can kind of—if I knew exactly where we were in the building I could sort of point. But, you know, the Federal Reserve is just either here or here. And, you know, that also has this kind of for-cause protection. And the Federal Reserve is a great sort of example of why Congress imposes these kinds of restrictions, because you know, there are certain issues in the world that we deal with at the national level where it’s nice to have a degree of insulation for discharging a particular duty or a particular responsibility where it’s not going to just change with whoever’s the president.
And you know, for a fairly long time now we’ve thought of, for example, monetary policy as being something that really shouldn’t just change in a way—with each administration in a way that would be more consistent with having ever member of the Federal Reserve Board serve at the will of the president. And so, you know, the Court obviously could decide this case in a way that says this particular provision is unconstitutional but nothing else is really called into question. But that wouldn’t be that easy, I don’t think, to decide it in that way, you know, because if anything I think if the ultimate question is how much control does the president need to have over an agency, it seems to me a little bit weird because—to draw the distinction, say, that it’s OK to have six people that serve with for-cause protection rather than one, because I think if the president were actually going to remove somebody for cause it would be easier to do it to one person than it would be to essentially recompose the whole, you know, body of the Federal Reserve, or something.
So if the constitutional value is that somehow you can’t insulate these agencies too much from the executive branch, from the president, seems like if anything the distinction would cut the other way. So I think it’s a case worth watching precisely because it’s not just about this agency. It’s really about kind of our government and whether you can really even have these agencies that more insulated from the president, because I think some of the conservative justices think—and you can see this in Judge Kavanaugh’s opinion—think that that insulation is itself problematic.
TOTENBERG: Neal, you argued and won last year—essentially, the Court adopted your position in the big religion case of last year, which you can talk about for about one minute—but—
KATYAL: Thank you. (Laughter.)
TOTENBERG: Looking forward there’s a huger religion case this year, which Paul is also involved in. But what we’re seeing, I think undeniably, is a shift on the Court from an era that began in the late ’40s, early ‘50s, and accelerated through the ’60s and ’70s, when the value of separation between church and state—although those words aren’t literally in the Constitution—but that was the sort of lodestar that everybody was aiming for. And today it’s much more an accommodation between church and state. And if you talk lawyer talk you talk—separation of church and state is you don’t establish a religion. You try to prevent anything that helps the establishment of religion. And on the other side now much more accentuated is the free exercise of religion. I’ll hand it over to you.
KATYAL: Yeah. So I do think that the Court and our society has moved in a direction much more accommodating to religion. There’s an old case in 1970s called Lemon versus Kurtzman, which almost set up a wall between—a very strong, robust wall between church and state. And that led to a bunch of precedents in the lower courts over the last years that I thought were pretty indefensible. And so the 4th Circuit, which sits right here, ordered the destruction—basically the tearing down of the Peace Cross, which is PG County, a thirty-two-foot cross erected in 1925 to commemorate the soldiers who’d fallen in World War I. And I read that and thought that was ridiculous. We asked the Supreme Court to hear the case and save the cross. And by a seven to two decision, the Supreme Court agreed that the cross should stay, that you can have religious symbolism, but that religious systems can also acquire other meanings. And here, that meaning was, of course, to commemorate these fallen soldiers.
I think that the Court is now moving instead of those five-to-four bitter decisions in this area into something that is closer to seven-two in general. That I think Justices Breyer and Kagan have a more accommodating view toward religion. With respect to the case up there, I’ll let Paul and Jan take that specifically.
CLEMENT: Yeah, I’m happy to. I’ll just sketch it very quickly. It’s the latest in this long line of cases involving essentially school vouchers. It’s just the broad rubric for these cases. This one involves a—it’s structured as more of a tax credit, but I don’t think that really matters at the end of the day. And the question is essentially when a state sets up a program to allow this are they actually forced by the federal Constitution to include religious schools in the program or can they limit it by the terms of their own state constitution to just private, nonsectarian schools, and limit it and essentially exclude the religious private schools? Or does that constitute discrimination on the basis of religion?
The only thing else I’ll say is—I mean, this case really illustrates—the fact that this is up here in this posture illustrates how the Court has moved over time, because with the Lemon cases there were lower court cases that said: You can’t have a voucher program at all because even the indirect provision of state aid through the intervening decisions of parents is still too much of a link between religious and the state, violates the separation of power. The Supreme Court in a case about fifteen years ago called Zelman overruled that and said: States, if they want to, can include religious schools within their voucher program and not violate the federal establishment clause.
Now, we’ve moved all the way to asking the question, if they’re going to have a voucher program at all do they have to include the religious schools to avoid the discrimination on the basis of religious that would be based in the free exercise clause? So this really illustrates how this has moved in a much more accommodationist direction and, at the same, some of the locus of activity has moved from does the establishment clause prohibit favoring religion to does the free exercise clause essentially mandate that not discriminate against religion?
TOTENBERG: Jan, you know, we—as you discussed—we have not only DACA but some other immigration cases. We’ve got abortion this year. We’ve got gun rights. Now you’ve heard about the religion clause cases. I’m—oh, we have LGBTQ rights in the Title VII case. What else am I leaving out? The point is, we’ve got a lot of stuff here. Why do you think is this the Court has tried for so long to sort of keep the cap on the bottle and now it’s just overflowing, or what?
CRAWFORD: I think that’s true in some of the—potentially in some of the cases because, as I said, last term was a very quiet term for the Supreme Court, and the first term that Justice Kavanaugh was on. So but I mean, if you look back—I mean, you and I have covered the Court a long time. I mean, we’ve had blockbuster terms before where there were five or six incredibly controversial issues. So that’s nothing that is unusual. I think what is interesting about this year at the Supreme Court, and this court in particular, is that it is still a court in transition. I mean, the Supreme Court, you know, obviously we have two—a new justice and a relatively new justice that President Trump put on the Supreme Court. There is great hope on the part of conservatives that Justice Kavanaugh will be a more reliable conservative vote than Justice Kennedy was.
There’s great among conservatives that Justice Gorsuch will be a solidly conservative voice, like Justice Scalia was. And there’s great fear on the part of liberals that both of those things are going to happen. And there’s also a great fear on the part of liberals that President Trump might get another nomination, which by the way Justice Ginsburg is—and Nina knows her very well—but is back at work. She doesn’t look like she’s missed a beat. She is as active as ever during oral arguments. And if you have anything that suggests otherwise, but to me she looks like she’s—
TOTENBERG: No, she’s thin, is what she is. She’s, you know, even thinner. But other than that, her voice is strong, she seems completely—I mean, her body may be having maybe—I mean, this is a woman who had three or four weeks of everyday radiation this summer, and then did eleven public events in September. When—and when I say eleven, most of those were multiple events. So she goes somewhere and does this and this and this.
CRAWFORD: And flights, not locally.
TOTENBERG: Yes. No.
CRAWFORD: She’s going all over, yeah.
TOTENBERG: I did one with her where I interviewed her in Little Rock, Arkansas in the Verizon Center that was sold out with fifteen thousand people, and a waiting list of sixteen thousand. And it—you just—you see this little person in the middle of the—(laughter)—and they had a very good sound system. I mean, I warned them that they had to mic her really closely. (Laughter.) But it was—you could really hear. And that place, you could have heard a pin drop. It was just an amazing phenomenon that I really can’t quite explain. It’s true I’ve known her for a very long time. But I can’t explain this, except to say that I think people, and maybe young women in particular—(laughs)—and older women too—want to have a living hero. And it’s—that’s been so relatively rare, and it’s been a long time since Justice O’Connor was on the Court, that maybe that’s the—as close as I can come to the explanation. I don’t know if anybody else has any other theories. Speak up now, men. (Laughter.)
CRAWFORD: Let me just finish, though, before we go onto—so I don’t think—Nina, obviously has a more personal experience with this—that anyone’s going to be leaving the Court. And certainly Justice Ginsburg seems to be in good health, or fine now. But it is a court that is still waiting to emerge, a clear view of that court. It’s almost like—if you look at a court, it’s like—and I try to tell, when I talk to law schools now, like, do you remember, there’s this thing called a Polaroid picture. (Laughs.) Which sometimes today kids today don’t know about that. But, you know, at first it’s a little blurry and it takes a while for the picture to emerge of what this court is going to be like—what kind of justice Justice Kavanagh is going to be, what kind of justice Justice Gorsuch is going to be. And initially the first term of two can be misleading. When Justice Souter joined the Supreme Court, his first year he voted most often with Chief Justice William Rehnquist. That, of course, then changed quite a bit. He became the most—one of the most liberal justices on the Supreme Court.
I don’t think that’s going to happen with these two justices, but I think it’s a mistake now when people try to predict what the Supreme Court is going to do. It’s too soon. We may get more clues this term. But argument has changed now with the departure of Justice Kennedy. The oral arguments used to be a time when justices would ask questions of these—people like these two guys, solely to try to get Justice Kennedy’s vote. I mean, you could—you could really tell where the justices were going and what they thought based on their questions. And their questions were important because they’re trying to sway Justice Kennedy. That’s changed now. And so without Justice Kennedy the whole kind of composition, the feel of oral argument—I don’t know if you guys have noticed—it’s different. You don’t—
TOTENBERG: And you get to talk in the beginning now. They understood—the chief justice and I think the other members of the Court understood—that they were interrupting people so much that the counsel simply couldn’t have a moment to make a comprehensive argument. So now they have two minutes at the beginning of a thirty-minute argument in which the—in which counsel is allowed to speak uninterrupted. Now, there have been a couple of interruptions because they forgot, but it’s—and I think—you know, two minutes is actually a lot longer than you think. How do you think—
CRAWFORD: Well, especially when you’re used to covering the Court, or arguing in front of the Court, when, you know, literally—I don’t know how many of you have been to an argument—but as you know, when you guys get up there to start arguing and say, may it please the Court, within a nanosecond, you know, there’s someone going, counselor—I mean, Justice O’Connor used to be immediately the one that was right out of the gate. So is it—how’s that with the—(laughs)—
CLEMENT: Well, look, honestly the biggest change is that you used to spend a lot of time thinking about what your first three sentences were, because that’s all you were going to get out. Now you really have to think about, like, about three paragraphs that you’re going to get out. And that is, you know, as Nina says, you know, two minutes doesn’t sound like a lot. But given what we had grown used to, this is—you know, this is an exponential expansion. And it can be—you know, I’ve had one argument under the new regime, and it was an argument that actually very much lent itself to this because I had a couple of different theories. I could win little; I could win big. And the two minutes kind of allowed me to lay out a menu. And then having laid out the menu, the rest of the argument I could kind of direct the questions back to sort of the original menu in a way that I think was more effective than if I’d just gotten interrupted.
You know, because classically a Supreme Court argument starts with a lawyer coming up and saying at the beginning of his or her argument, I have three points, and getting halfway through the first, and then, you know, you’ll never discover what points two and three ever were. And this allows you to kind of lay out the thesis of your case very quickly. I think it’s an improvement.
KATYAL: So to give you a little data, I mean, oral argument, half an hour per side. I average—someone just did the numbers—sixty-point-eight questions in a thirty-minute argument. So every thirty seconds, basically, you’re getting a question. I do think that the new rules give us a little more time. I haven’t argued in front of them—the new rules—yet. I will in a couple weeks. But I think Jan is right to say with Kennedy gone the tenor of our argument has changed. You know, in particular, the chief justice loves playing devil’s advocate. And I think, you know, observers to the Court will watch what he’s saying and say, oh, he’s leaning this way or that way.
CRAWFORD: Kavanaugh’s the same way.
KATYAL: Yeah, Kavanaugh, exactly. And, no, these are just people who try and ask the hardest question on the other side of the advocate. And I can never really, from their questions, figure out where they’re going. And the old argument, when Kennedy was on, it wasn’t just the justices who were trying to pitch their questions to get at Kennedy, it was also the advocates. So it was so focused in this one spot on the Court. And now I feel like it’s much more of a pure intellectual exercise, in which you’re just trying to make the best arguments for your side and not trying to tailor it toward that one vote.
TOTENBERG: OK. So I’m supposed to turn this over now to the members for their questions. And you’re all invited to join this conversation. So a reminder, this is on the record. Wait for the microphone to come around. Then you can stand, and state your name and your affiliation, and let ‘er rip. (Laughter.) So who has a question? Well, I said we only had twenty-five minutes, but—oh, we got a question there.
Q: Larry Meyer.
It seems to me that the cases are more predictable than you have suggested. And whereas the chief justice has said they’re just justices not Republican and Democratic justices, that doesn’t seem to be the way it is. It seems to me this is very challenging because if the composition of the Court changes, and precedent hasn’t become that important, a lot of these things are going to be overturned and the whole nature of the Supreme Court will have changed.
KATYAL: Sometimes I think it’s right. You know, some things are predictable—or, more predictable than others. But I do think that that hot button focus of those cases obscures the more general workings of the Court. So two years ago they were unanimous in 60 percent of cases, four years ago 66 percent of cases. You’d have to go back to the year 1940 to find a similar rate of unanimity. So sometimes that happens. And indeed, in sometimes real hot button ones—I had Citizens United two, it was dubbed, which was called FCC versus AT&T. And the question on the case, the year after the controversial Citizens United decision was, do corporations have privacy rights? And the newspaper headlines were like, oh, going to be bitter, five-four predictable decision.
The law had an exception for what was called, quote, “personal privacy.” So the lawyer for the company stood up and said there’s an exception for personal privacy, corporations are persons, look at the Dictionary Act, the first code in our statute. Ergo, companies have privacy rights. And the chief justice immediately interrupted and said: Well, the word is “personal” not “person.” And you’re giving a definition of “person.” And the lawyer said, well, I don’t see why that makes a difference. The chief said, well, what about squirrel/squirrely, craft/crafty, pastor/pastoral. (Laughter.) And the lawyer for the company didn’t really have an answer to that, and so the chief justice writes an opinion for the Court unanimously siding against the company saying they don’t have privacy rights. And the last line of the opinion by the chief justice says, quote, “We trust AT&T will not take it personally.” (Laughter.)
CLEMENT: So let me add one less sort of humorous codicil to that, which is just to say, you know, I really—I don’t think you’re right, which is to say as somebody who spends all of their time kind of—or, way too much of it, anyways, thinking about the Court and how they decide cases, I don’t think that the way you’ve described it is quite right. I do think that the justices care more about stare decisis, at least seven or eight of them, than the question sort of suggests. And I do think that there are—that they’re slightly less predictable than the questions suggests.
But to give the premises of the question their fair due, I think they actually highlight that the Court has a real challenge right now, which is that they have nine justices, five appointed by presidents of one party, four appointed by presidents of another party. And both the presidents that appointed them and the justices themselves have some differences—some fundamental differences about how they think you should go about interpreting the constitution that end up dividing in the highest-profile, hot-button issues along the lines of the president that appointed them. And so it is very easy for the public that’s used to processing, you know, everything else in political terms to say, ah, the five conservatives did X, the four liberals did Y. And I honestly believe, you know, the Court isn’t—the justices are not processing the cases that way, but they are processing the cases through their judicial philosophies that happen in this moment in time to dovetail 100 percent with the political affiliation of the president who appointed them.
It hasn’t been that way this starkly before. You know, Jan alluded to Justice Souter. You could point to Justice Stevens—two Republican appointees who ended up voting much more like liberal justices, if you can use that term. And, you know, it sort of showed that, you know, why were they doing that. It’s not because—I mean, you know, Justice Stevens, like, you know, in a certain sort of country club Chicago kind of way was still a Republican. But he had a judicial philosophy that was very different from kind of what, you know, sort of the current president—Republican president is looking for. So I think when you have a court that is divided along judicial philosophy lines that are 100 percent correlated with the partisan affiliation of the presidents who appointed them, you have a problem that you have to manage. And, you know, the chief justice who has really very little tools in terms of managing the Court—because he’s only got one vote and the assignment power. But he sort of has this challenge of kind of stewarding this institution that I think legitimately is not deciding all the cases that way but is deciding them in an environment where 99.9 percent of the people are going to see it that way.
TOTENBERG: Well, the other thing—I’m going to take the moderator’s exception here—the other thing that your question doesn’t figure into is that the—I would argue that the Democratic Party, at least up until this election, we’ll find out who their standard bearer is, is pretty much the same party it was when, you know, people were appointed in the ’70s and ‘80s. But that’s not true for the Republican Party. I mean, Gerald Ford, who appointed Justice Stevens, said—not long before he died, he said—he wrote something that said: If I had one act to rest to be most proud of, it would be the appointment of Justice Stevens. But Gerald Ford’s brand of Republican barely exists anymore. And I think that is reflected in the appointments you see, and therefore the differences between the justices, I think, are more stark.
CRAWFORD: Well, I was just going—I mean, I think that, you know, we, in my business, fuel that kind of narrative, because we shorthand the liberal justices, the conservative justices. So you know, people who are just casual observers or watch a minute thirty—which I know this is not anyone in this room—but whose knowledge of the Court comes from what they might see on television, then assume, oh, well, those are the Republican justices and the Democratic justice. So I think that the way that we cover the Court sometimes kind of fuels that. And, Paul, I mean, of course, that is right. I mean, it’s more that their judicial conservatives and judicial liberals, which means their view of interpreting the constitution and how they want to interpret statutes is different. So, but I do think that’s a concern. And I think that the groups also fuel it. I think that the interest groups on the left and on the right—at times their rhetoric is irresponsible.
TOTENBERG: And venal and wrong.
CRAWFORD: Yeah. And so it’s contributing—that’s helping contributing to sometimes really misleading views of the Court, which is nine very smart people kind of engaged in this struggle over how to interpret the Constitution, how to interpret statutes. But genuinely wanting to get the right answer that they believe is the right answer. It’s not like, oh, I’m going to rule this way in this case, or you get it the next time. It’s not like that. I mean, I’ve covered the Court for twenty-five years. I’ve lost a lot of respect for a lot of institutions in this town. The Supreme Court is not one of them.
KATYAL: And let me plug here, because you all are in D.C., if you haven’t gone to see argument at the Court, really do so. I mean, every time I’m up there or watching, it’s really—it’s the only branch of government that still works. And it’s really remarkable. And it’s a real almost crime to me that all Americans can’t see it because it’s not televised.
CLEMENT: And can I say, you know, there is good news here, which is there is an easy solution for the Court. They can just grant more cases for me and Neal—(laughter)—and decide them unanimously, hence showing that politics doesn’t matter at all and that they can all agree on things. So I think there is a solution. (Laughter.)
CRAWFORD: But I think this is a concern for the Court and the justices. I think that’s why we’re going to see them try to rule on a lot of these cases quite narrowly this term. That’s why they’re very difficult to predict. When I saw, you know, it’s certain that they’re going to rule that DACA must come to an end—I mean, I’m not going to go out on that limb and predict that. But you know, knock yourself out if—you know, they’re too hard to predict right now. They are concerned about that. Public opinion polls—the Marquette Law School just had a public opinion poll that has the Court—public’s confidence in the Court as an institution is dramatically higher—like, you know, twice what Congress is, three times what the White House is.
TOTENBERG: And way more than what journalists and lawyers are.
CRAWFORD: Yeah, yeah, yeah. So the public’s confidence in the Court as an institution is still high. But that is crucial that it stay high. I did just an event the other day with Justice Breyer.
TOTENBERG: And it’s gone down a lot. It’s gone down a lot.
CRAWFORD: They’re really concerned about that. Because they don’t have armies to enforce their decisions. Their legitimacy—
TOTENBERG: So we have some other questions over here. Yes.
Q: Hi, Jim Kolbe with the German Marshall Fund.
I want to turn to this question about—I’ll avoid the pejorative word—about expanding the Supreme Court that some of the Democratic candidates have been talking about. Last time this was, the way I remember it, being tried in a serious fashion back in history, I should say, back in the 1930s, it got shot down pretty quickly, even though President Roosevelt had huge majorities in both houses of the Congress. What do you think is behind it this time? And how do you think the Supreme Court reacts, or do they react at all, to this talk about expansion of the Court?
TOTENBERG: Well, they hate it. That’s number one thing. You know, I, for one, think that—you know, these are politicians. What do you expect? And the fact is that as long as there was a clear center of the Court that could go either way, I think liberals thought they would trust in the Court. But they—for the first time, they had no input at all in the selection or confirmation of either of the two justices now. And there was a lot of hanky-panky about holding the seat—the Scalia seat open. And I think all of that was great for Mitch McConnell and Republicans. And they really maximized their effect with that. But the bad side of that is that people who are—who are liberal or even sometimes moderates think that the system is a little rigged. And that leads to kind of what I would generally call cockamamie ideas, like trying court packing again, which every justice, as far as I know, liberal and conservative, has spoken out against.
KATYAL: And it’s a shame—it’s a shame we’re in this position. And I think it’s more than a little bit of hanky-panky. I mean, it’s a Republican Senate that didn’t even Merrick Garland a hearing for—you know, when Justice Scalia’s untimely passing on, I think it was February 13. And, you know, that was playing and putting the Court in this political thicket. And it’s entirely predictable that you’re going to have calls to court pack now. How can you not, when that is what they did, and took that—and destroyed the process? So I feel terribly that the Court is in this position, but I know where that fault lies.
CLEMENT: And you know, I won’t sort of take issue with that, but what I’ll say is I’ll broaden the lens even a little bit further because, you know, I think what you see when you see sort, you know, kind of dysfunctional confirmation hearings, when you see political candidates talking about expanding the Court, and court packing, and the like—I mean, you know, to me, that gets back to the idea that the Court is deciding so many important issues, so many politically charged issues. And, you know, Congress, by contrast, you know, is kicking a lot of the issues that I think the framers thought it would decide and wrestle with to either the Courts or the executive branch, through inaction.
And if you put all that together, I mean, you know, I don’t know how you can be surprised that in the very few instances in which the political process can influence this—these nine unelected people who are deciding, you know, everything from race, abortion, and how to solve the opioid crisis. Like, of course, when the political process gets a little bit of an opportunity to influence that institution, either by delaying a vote on one nominee or by trying to derail another nominee, or saying, hey look, the constitution doesn’t specify the membership of the Supreme Court, then, you know, how numerous it is. Like, if the Court’s going to have that much power, and decide all of these issues, like, you kind of have to expect that the political process, where it can touch it, is going to try to touch it.
TOTENBERG: OK. Yes, over there.
Q: Thank you all so much. My name is Kathleen Claussen. I teach at the University of Miami Law School.
There are a handful of us in the room that work on international trade, which is not an area that intersects too much with your work, except that it might in the future in the area of the nondelegation doctrine. And you may know, there’s a case at the federal circuit now to look at one of the delegations to the president to put on national security tariffs. So we all started learning about the nondelegation doctrine quickly and were following Gundy in the last term. So as hard as it may be to predict with this particular court, I’d welcome your expert views on where we might be headed if not this term, but further down the line on the nondelegation doctrine. Thank you.
CLEMENT: So, I mean, I can take a crack. Look, if you started learning about the nondelegation doctrine, I think you figure out pretty quickly that there’s not actually that much to learn. (Laughter.) You know, somebody famously said that the nondelegation doctrine had one very good day in, like, 1931, and it’s been all downhill since because the Supreme Court struck down sort of two statutes on nondelegation theories. And it really has struggled with kind of how you apply that doctrine.
TOTENBERG: Explain what it is, though, for people who are not professors at the University of Miami Law School.
CLEMENT: Sure, sure. So the nondelegation doctrine—yeah, for the nondelegation doctrine, for those of you who didn’t wake up this morning thinking about the nondelegation doctrine, is the idea that Congress can delegate essentially too much legislative authority to the executive branch, or impermissibly delegate too much legislation power to the executive branch if it gives the executive branch assignments without really providing any meaningful constraining direction. And part of the reason the doctrine hasn’t done particularly well since 1931 is there are a lot of federal agencies out there that are supposed to, like, regulate the public airwaves in the public interest, and the Supreme Court said: That’s good enough. And if in the public interest is good enough, like, what wouldn’t be? And also there’s really nothing in the Constitution that speaks to this directly. So even the justices who would like to have a more robust nondelegation doctrine, they tend to be the more textualist-oriented justices. And there really isn’t a lot of text to point to.
And so I guess what I would say is I think in Gundy—which was, you know, a case about SORNA, and I’m not even going to bother saying what the acronym’s about. But, you know, it was closely divided. But I think if you read between the lines, there were like five justices on the Court right now at least, who have sympathies for the idea that the Congress is delegating too much to the executive branch. But I don’t think you have five justices that have a view that there’s a really clean, workable, administrable line to apply. So I think it’s an area where—you know, I mean, litigants should try to kind of make arguments that there’s too much delegation doctrine here, or too much delegation here.
If I were advising one of my clients about this, I would probably advise them to stay away from sort of there’s a nondelegation problem here and try and focus on something that’s specific to this statute that’s problematic, that the Court could say this Congress can’t do. But in all events, I do—so this is an issue that will come back up to the Court, maybe in the trade context, maybe in another context. But it’s not something where I think it’s easy to predict that, yeah, there are five justices that are going to resurrect the nondelegation doctrine, at least in those terms.
KATYAL: And I would just say one quick thing, which is I do think there’s a core to the nondelegation which I think most people—almost everyone agrees with. So Constitution said, for example, Congress shall declare war. And Congress can give that authority over to the members of CFR, or something like that. That would be a flat-out violation of this nondelegation principle. The trade cases are interesting because they come pretty close to that hypothetical, unlike the SORNA and the other stuff that’s been brewing around the Court. So I think those are ones to watch and see. But there may be a little bit of a revival of the doctrine.
TOTENBERG: Question down there.
Q: Hi. My name is Jeff Nectarline (ph).
I am curious as to what your views are about the chief justice going over to the Senate, or sometime early next year, and how he’s feeling about that, and the Twitter universe coming after him?
KATYAL: Well, I’ve thought about this a lot, because I have a book on impeachment coming out Tuesday, and a chapter about this. And so—
CRAWFORD: Good timing, by the way. And the holidays are right around the corner so, you know, stocking stuffer. (Laughter.)
KATYAL: So I think the—
CRAWFORD: I’m trying to help you plug your book, Neal, come on.
KATYAL: Thank you. (Laughter.)
The chief justice—I think this chief justice clerked for the last chief justice, for Chief Justice Rehnquist, who presided over the Clinton impeachment. And he went over every day and presided in such a kind of neutral way, at the end he said: I basically did nothing, and I did it very well. (Laughter.) And I think this chief justice will use that as the model. You know, impeachment’s weird. The trial in the Senate’s weird in that the chief justice can make any sort of ruling, but he can be overruled by fifty-one senators.
TOTENBERG: But he wasn’t. And part of the reason for that is they sort of talked about everything beforehand. So—and Rehnquist had the parliamentarian sitting on his shoulder, basically. And Daschle and Lott probably got along better than Schumer and McConnell. But still, the leaders of these parties do tend to, when push comes to shove, to get—to understand that they have to—they have an object here. And the object is complete a trial and reach a result in relatively quick order. If they have different objectives, and one wants to drag it out and the other one doesn’t, then it gets hairy. But in the last impeachment, that did not end up being a problem. And I would greatly suspect that this chief justice does not want to be making rulings that would get overruled by a majority. You’re going to see him looking very regal, but not much else. He may be doing stuff behind the scenes, making sure that he understands what everybody wants. But I don’t think we’re going to get to see it.
CLEMENT: Nina, you alluded to him looking regal. To me, you know, the interesting question is stripes or no stripes. (Laughter.) You know, Chief Justice Rehnquist at one point sort of famously, kind of out of nowhere, and I think it came from, like, Gilbert and Sullivan or something, but, you know, showed up at court wearing stripes on his robes.
CRAWFORD: You know Roberts isn’t going to do that.
CLEMENT: Well, you know, I kind of thing it would be neat if he did.
KATYAL: No chance.
TOTENBERG: No way. (Laughter.)
CLEMENT: I think—I think if Justice Ginsburg can have a sort of dissenting collar, he should have, like, a special impeachment robe, that he wears only for impeachment. (Laughter.)
TOTENBERG: Red? Red?
CLEMENT: Whatever. I mean, I’d go with stripes if I were him, but red’s good. But something to shake it up.
CRAWFORD: But it does go to show what we’re talking about this term, and you know kind of the Court being in the center of the attention, and election year. Court packing on the minds of all the Democratic candidates. And so it is, I’m sure, not where John Roberts would like to be in January or February.
TOTENBERG: However, they—by tradition, they start at 12:00 or 12:30. So he can do everything. And the object will be to do it well. And the question is whether he’ll be drafting an opinion while he listens to some boring—(laughs)—debate on the floor of the Senate.
Anybody else? Yeah.
Q: Jeremy Young. I’m a journalist with Al Jazeera.
I have a question for Nina. I was wondering if you can share with us a personal story about your interactions with the notorious RBG. Maybe something that reveals a little bit about her sense of humor or her character.
TOTENBERG: Well, she is quite funny, at least publicly. I mean, she really is a shy person. And she is a quiet person, unless she—the secret of Ruth Bader Ginsburg is that she’s a performer. It’s how she got to be good at what she did as a lawyer, and it’s how she got her job on the Supreme Court, because she was not, as she would tell you, President Clinton’s first choice, by any means. He tried Cuomo, he tried George Mitchell, and there were some other people before. And finally he gets persuaded to talk to her. And he just falls for her hook, line, and sinker. But, you know, she gives a good speech, and she is sometimes very funny on the bench. But that is not the person I’ve known for more than hmm years. (Laughter.) When we were both very young.
But the only story I’ll tell you, which is really quite amusing about me, really, more than her, is that when I started to cover the Supreme Court, I didn’t know anything. I wasn’t—I’m not a lawyer. I really knew nothing. And in maybe the second year, or the first year, I don’t remember, I opened this brief in a case called Reed v. Reed, which was the first sex discrimination case before the Court, where they ruled against sex discrimination, ultimately. And it says that women are covered by the 14th Amendment. And I go, how are women covered by the 14th Amendment? It was this post-Civil War amendment to the Constitution about African Americans. And I flipped to the front of the brief to see who wrote it, and it was written by a professor at Rutgers named Ruth Bader Ginsburg.
And in those days, we had little phonebooths in the Supreme Court press room that were about the size of my chair here. And I go in one of these booths. And I call her up. And I get an hour-long lecture. And I suddenly knew a lot. And that’s how I met Ruth Bader Ginsburg, and over the years how I’ve known her more and more over time. So it’s not a funny story, but it’s—she’s a fascinating person.
CRAWFORD: It’s revealing though, because she cares about that. She took the time to educate for a good hour.
TOTENBERG: Yeah, answered her own phone. (Laughter.)
CRAWFORD: Yeah. That’s revealing.
Q: Andrew Shapiro, Beacon Global Strategies.
This is a question for Neal Katyal, you have a book on impeachment coming out. There’s been speculation online that one of the reasons why Democrats don’t need to subpoena Mulvaney and others now is because once impeachment happens they can call them as witnesses during the actual impeachment trial, and that the chief justice would rule then whether they could bring in, rather than go through a Supreme Court process where he’s the deciding vote anyway. Why not just wait until it gets to the Senate floor and try and get those witnesses then? I was wondering what you thought of that legal theory that’s sort of bouncing around out there now.
KATYAL: Yeah, I’m not going to predict how he’s going to rule on any of that. I certainly think that those witnesses can be called then, and that’s a faster route than that. But I think really the reluctance to call these folks has a lot more to do with the fact that they feel that the case is 100 percent rock solid on the facts as they are already, and they don’t need to garner more facts to go ahead and take the vote in the House. So I think that’s really what’s going on.
TOTENBERG: But if they—just let me ask you a question: If in the impeachment proceeding the Senate were to call, let’s say, I don’t know, John Bolton, and the president were to object and go to court at the same time, could he do that? Would that—I mean, I know that we all have always thought that impeachment is the—at least, some people think it’s the only remedy, some people think it’s not the only remedy, but that it is at least the remedy.
KATYAL: I think that gets thrown out of court. There’s a case called Nixon versus the United States. And it’s not actually President Nixon. There was a judge Nixon who was impeached. And how he had the same name is beyond me, but in anyway—no relation.
TOTENBERG: Walter Nixon.
KATYAL: Yeah. But the Supreme Court there said basically the federal courts have no business in impeachment. And so I suspect that’s what would happen, even if the president tried to do that. You know, I think it would be a terrible legal argument, but he’s known for making terrible legal arguments. (Laughter.)
TOTENBERG: OK. We have reached the witching hour, which is 1:30. And they tell me that you are extremely prompt here at the Council on Foreign Relations, and that I even let this go over like two minutes I’ll probably be impeached. (Laughter.)
So thank you all for having us. (Applause.) And thanks to my panelists.