0:01

Hi,

0:05

and welcome to Amicus. This is Slate's podcast

0:07

about the courts and the Supreme Court and

0:09

the rule of law. And

0:12

I am Dahlia Lithwick, and that's my beat

0:14

at Slate. I will send

0:16

to the Senate the nomination of

0:18

Judge Sandra Day O'Connor of Arizona,

0:21

Court of Appeals for confirmation as

0:24

an Associate Justice of the United

0:26

States Supreme Court. I

0:29

commend her to you, and I

0:32

urge the Senate's swift bipartisan confirmation

0:34

so that as soon as possible, she may

0:36

take her seat on the court and

0:39

her place in history. Sandra

0:42

Day O'Connor, the first woman to sit

0:44

on the U.S. Supreme Court, died

0:47

Friday morning at the age of 93. Appointed

0:50

to the high court in 1981

0:52

as a result of a

0:54

possibly somewhat half-hearted campaign promise

0:56

by then-President Ronald Reagan, O'Connor

0:59

morphed from starting off as

1:01

a jurist on a mid-level

1:04

court in Arizona to

1:06

the single most important justice on

1:09

the highest court of the land. For

1:11

so many American women, Ruth Bader Ginsburg

1:13

was a rock star and a legend,

1:15

but for a whole lot of the

1:17

rest of us, had there never

1:20

been an O'Connor, there would not have been a

1:22

Ginsburg, and there would never have been a whole

1:24

lot of the rest of us. O'Connor

1:27

was famously certain about all things. She

1:29

was the lobber of the first question.

1:32

At oral argument for years, she

1:34

was the definitive voice of

1:36

how the law should go and what

1:39

it should be. But she was

1:41

never an immovable object. O'Connor's

1:44

views changed and changed again over

1:46

her years on the high court,

1:49

often in response to shifting public

1:51

views and expectations of

1:53

what the law should become. Today, in

1:55

celebrating her life and commemorating her death,

1:58

we will talk to Ranelle Anderson. Jones,

2:00

who clerked for her in the

2:02

2003 term. In the second

2:05

half of the show, I'm going to be joined by

2:07

my much missed jurisprudential wingman,

2:09

Mark Joseph Stern, for

2:11

some big announcements and to

2:14

guide us through what went

2:16

down in Wednesday's arguments in

2:18

Jarkissi versus SEC. That's the

2:20

case challenging the authority of

2:22

the Securities and Exchange Commission

2:24

to enforce federal law against

2:26

securities fraud. Quick spoiler,

2:29

turns out Wednesday was one of

2:31

those fringy theory gets a whole

2:33

lot of love from the conservative

2:36

justices kind of days at

2:38

the Supreme Court. Later still

2:40

in the show, our Slate Plus

2:43

members will get to hear Mark

2:45

explain some alarming new

2:47

voting rights fallout from non-compliant

2:49

lower courts who have chosen

2:51

to respond to last year's

2:54

crucial Allen v. Milligan case

2:56

reaffirming the Voting Rights Act by

2:59

ignoring it. We're also going

3:01

to kick around some thoughts on judicial

3:03

ethics and the shape of the term

3:05

so far in the cigar bar neckties

3:07

loosened way we do in our

3:09

Slate Plus bonus segments. If

3:12

you're not a Slate Plus member,

3:14

head over to slate.com/amicus plus for

3:16

details on how to become a

3:19

member and get your mitts on lots and

3:21

lots of shiny

3:23

benefits. That's slate.com/amicus plus.

3:27

And to our Slate Plus

3:29

subscribers, thank you, thank you, thank you for supporting

3:31

the work we do here on the show

3:33

and at the magazine. We literally could not

3:35

do it without you. But

3:37

first, to the passing of

3:39

the first woman ever to be

3:42

seated on the US Supreme Court

3:44

Sandra Day O'Connor. When you have

3:46

to put down on paper permanently

3:50

the test that you're going to

3:52

apply and see how it works,

3:55

that's a challenge every single time. And you really do have to

3:57

be a good judge of your own. want

4:00

to do it well, and

4:02

you won't know until many years

4:04

have gone by how well you've

4:06

succeeded. You

4:09

can't tell instantly. Rene Anderson

4:11

Jones is here to talk

4:13

about what it was to

4:16

clerk for Justice O'Connor

4:18

and what it was to sit

4:21

with her legacy as Rene was

4:23

coming up as a young

4:26

woman and now an older

4:28

and very distinguished scholar. Rene

4:31

Anderson Jones, a friend of this

4:33

show, is a university

4:35

distinguished professor and the Lee E.

4:37

Teitelbaum Chair in Law at the

4:40

University of Utah. She's an

4:42

affiliated fellow at Yale Law School's Information

4:44

Society Project, and for the 2023 to

4:48

24 academic year, Rene is also

4:50

a senior visiting research fellow at

4:52

the Knight First Amendment Institute at

4:54

Columbia University. Rene is

4:56

a former newspaper reporter and editor, and

4:59

she is a First Amendment scholar

5:01

who researches and writes on legal

5:03

issues affecting the press and the

5:05

intersection between media and the courts with an emphasis

5:07

on the U.S. Supreme Court. And

5:10

as I said earlier, Rene also had

5:12

the honor and distinction of being a

5:14

clerk for Justice O'Connor. So I

5:16

want to start, Rene, by welcoming you back

5:18

to the show but also just telling you

5:21

that our hearts are with you and the

5:23

other Sandra Day O'Connor

5:26

or as we affectionately call her,

5:28

sock clerks who really are in

5:30

grief. I think despite the fact

5:33

that Justice O'Connor is 93 and

5:35

has been ailing, this is

5:37

the end of a really important American

5:40

legend. Thank you. And

5:42

yeah, it absolutely is. It's

5:46

nice in many respects to

5:48

have the chance

5:50

to mark the moment. So

5:53

while we're all

5:56

sorry at the news, I think

5:58

Justice O'Connor herself... had

6:01

a real pattern of sort

6:03

of hitching up her big

6:05

boy pants and getting on with the

6:07

work was always her

6:09

motto. And so I think

6:12

that part of what we want

6:14

to do at this moment is try to do the same. So,

6:18

Rene, one of the reasons I really wanted

6:20

to talk to you is that

6:23

you clerked for Justice O'Connor in

6:25

2003 and that term, which

6:27

was important in so many ways, but

6:29

literally that was just about the time

6:31

that she was being feted in the

6:33

press as the single most powerful person

6:36

in the country. I'm thinking of Jeffrey

6:38

Rosen writing in the New York Times

6:40

in 2001 in a piece

6:42

called A Majority of One. He

6:44

wrote at the time, quote, we are

6:46

all living now in Sandra Day O'Connor's

6:48

America, take almost any of the most

6:50

divisive questions in American life and Justice

6:53

O'Connor either has decided it or is

6:55

about to decide it on our behalf.

6:57

The Supreme Court may tell us soon whether

7:00

affirmative action in public universities is permissible and

7:02

if it does, O'Connor is likely

7:04

to cast a deciding vote. The court is

7:06

divided about school vouchers. O'Connor's

7:09

views will tip the scales and

7:11

quote, I mean, you

7:13

were clerking for her at a moment where

7:16

literally she was the decider,

7:18

the boss, the determinant.

7:21

And I wonder if you could just

7:23

sketch out for people who are probably

7:25

hearing a lot about, you know, she

7:27

was an affirmative action pick in 1981

7:30

and she came from this inferior

7:32

court and nobody knew who she

7:34

was and she wasn't even very

7:36

well rated. And then she becomes

7:38

in the span of two decades,

7:40

the most influential person at the

7:43

US Supreme Court at the beginning of the

7:45

new millennium. Yeah, I really

7:47

do think that it's a

7:49

remarkable arc and in part,

7:51

I think it's because

7:54

of her and who she was as a

7:56

person and because of the kind of thinker

7:58

that she was. She was very much a

8:01

pragmatist and she was very much focused on the

8:04

court as an institution, its

8:06

institutional reputation. And I think that drew

8:08

her to try to be something of a mediator

8:11

and a pragmatist in the body

8:13

that she belongs to. But also

8:16

it was in part because she

8:18

sort of stood still a little

8:21

in her ideology and the court itself shifted

8:24

around her. And so I don't

8:26

necessarily think that she expected to

8:29

take on that role. And I know from

8:31

having been in the building and in the

8:33

chambers that she didn't particularly relish it. I

8:36

think a bit of a like misperception,

8:39

right, that I guess a lot of

8:41

lawyers and judges and justices would think

8:44

it was fantastic to have headlines like the sort

8:46

that you described, right, to be declared the most

8:48

powerful person in the world and to have it

8:50

be known that it was your court.

8:53

She did not feel like that. I

8:56

think that she wished it weren't

8:59

so and wanted

9:01

very much for there to be consensus

9:03

and for the court itself to

9:06

be respected as an institution.

9:09

But I think it weighed heavily

9:11

on her, particularly in those years

9:13

that you're describing towards the end

9:15

of her time on the court. The

9:19

burden of being the swing was heavy

9:23

on her. Danielle Pletka

9:25

I wonder if you can talk a little bit about

9:27

the ways in which, you

9:30

know, we think about O'Connor

9:32

as this trailblazing

9:34

feminist icon. And in a lot of

9:36

ways, she was the antithesis. I

9:40

mean, it's such an interesting, to me,

9:43

juxtaposition of Ruth Bader Ginsburg, who

9:45

was only, you know,

9:48

a few years apart, but it

9:50

was entirely another generation of feminists.

9:52

O'Connor famously is the cowgirl. She

9:55

is forever pegged as the country

9:57

club Republican in the fastidious little

10:00

suits. She certainly was,

10:02

at least initially, very much

10:04

onside with the Reagan

10:06

administration's view of the world and

10:08

of the law. And here's

10:10

President Reagan signaling that

10:12

he thinks she's just going to be

10:14

fine on abortion. Right, the life people may oppose

10:17

her, sir, and we just wonder if all

10:19

of those questions the Attorney General is prepared

10:21

to answer. Mr. President, you have to defer

10:23

a position on that. Can you give us

10:25

your feelings about her position? I am completely

10:27

satisfied. He wasn't ultimately going to be

10:30

satisfied because in the end, Sandra

10:32

Day O'Connor betrayed the conservative legal movement on

10:34

abortion. In Casey in 1992, she time and

10:36

time again had

10:41

special solicitude for women in discrimination

10:43

cases on so many other issues

10:45

had solicitude for the

10:48

little guy. And the data suggests

10:50

that even though she and Ginsburg

10:53

were in some sense diametrically opposite,

10:55

right, they agree, I think, over

10:58

all the years they sat together on about

11:00

50 percent of the cases, but on gender

11:02

they were aligned almost 90 percent

11:05

of the time. So I wonder

11:07

if you could help us parse, and

11:09

maybe this is a lot to ask

11:12

in the hours after her death, but a

11:14

theory of how for Sandra

11:17

Day O'Connor gender mattered a lot and it

11:20

mattered not at all, and how

11:22

that inflected on the ways she

11:24

thought about both herself and her

11:26

legacy as the first woman on

11:28

the court, and how she thought

11:31

about cases not just involving women

11:33

but involving discrimination and what it

11:35

was to be on the outside.

11:38

Justice O'Connor once told me that

11:40

being a woman was both her most important trait

11:42

as a lawyer and her least important, and that

11:44

always really sat

11:46

with me. And

11:48

she said, you know, the same is true of

11:50

you. I mean, I was

11:53

a first grader when she joined the court,

11:55

right, so I never really knew a world

11:57

in which it was impossible for women to...

12:00

achieve things or to achieve the

12:02

highest rank of the legal profession at

12:04

least. And sometimes

12:07

when I would hear her tell

12:10

sort of firsthand to

12:12

audiences the kinds

12:15

of experiences that she had

12:17

had coming straight out

12:19

of law school and being asked

12:22

about her typing skills despite being

12:24

at the top of the class

12:26

and being offered only secretarial positions,

12:29

she was a product

12:31

of her time in a lot of

12:34

ways. And I think

12:36

that explains the overlap that you're

12:38

describing between her views and Ginsburg's

12:40

views on those cases. And

12:43

also describes a lot of her

12:45

jurisprudence. I think she was very much built

12:48

by the sets of characteristics that brought her

12:50

there. And because she was such a pragmatist,

12:52

she really thought through that lens. She thought

12:54

about the law through that lens. She thought

12:57

about the law by way

12:59

of its impact on people in

13:02

the real world. And I think

13:04

she thought about her doctrinal

13:06

positions through that same lens.

13:08

We see it, you

13:10

know, the gender issue for

13:13

sure shaped her jurisprudence

13:15

in that space. But I think, you

13:17

know, her role as a Westerner shaped

13:19

her state's rights views and her role

13:21

as a person who had been elected

13:23

to public office shaped her view on

13:25

a lot of issues that were related

13:27

to elected officials. It was

13:30

all of a piece for her. And

13:32

she said lots of times that she

13:34

would like her tombstone to read, here

13:36

lies a good judge. And she, of

13:39

course, knew full well that it would

13:41

read, here lies the court's first female

13:43

justice. And I

13:46

think the tension between those two was

13:49

really complicated. But she herself, I

13:51

think, would have acknowledged that

13:54

her life experiences spoke

13:57

to her in really significant

13:59

ways. ways on the

14:01

question of discrimination and

14:03

particularly discrimination against women.

14:06

We'll be right back. More

14:09

now with Rinal Anderson Jones

14:11

on the passing of a

14:13

legal legend and a dear

14:15

friend, Sandra Day O'Connor. Here's

14:19

a little bit of audio of

14:21

the now retired Justice O'Connor in

14:23

2012 speaking at a Supreme

14:26

Court Historical Society event marking the

14:29

30th anniversary of her appointment. I

14:32

wasn't sure what I ought to do because it's

14:36

all right to be the first to do something,

14:38

but I didn't want to be the last woman

14:40

on the Supreme Court. Thank you,

14:42

Ms. Golland. If

14:47

I took the job and did a

14:49

lousy job, it would take a long

14:51

time to get another one. So it

14:53

may be very nervous. And she's sort

14:56

of deprecating herself and her role. And

14:58

also it feels like I

15:01

can't quite tell Rinal if she I

15:03

think it's exactly the thing you've just

15:05

described where she both reckons

15:08

with her historic role and then undermines it.

15:10

Did she really think she was going to

15:12

be the last woman ever on the Supreme

15:15

Court? She's going to screw it up for

15:17

everyone who came after? Or is

15:19

just this sense

15:22

of historical weight,

15:25

which I don't think she

15:27

felt pinned under it, but I think she

15:29

felt the need to perform it in some

15:31

way. And I guess

15:33

I find myself thinking of both

15:35

her and Ruth Bader Ginsburg the

15:37

first two historic

15:40

women on the court who

15:42

had their entire constitutional

15:45

and legal legacy erased

15:49

very quickly after they stepped down. I

15:51

think lots of us are thinking about that

15:54

at this moment, I guess to the question

15:56

of whether she meant it or was being

15:58

folksy or false modest. was probably a

16:00

combination of the two. She

16:04

definitely many

16:06

times said to

16:08

a lot of us privately

16:10

and to many groups publicly

16:13

that her life changed for the

16:15

better when Justice Ginsburg joined the

16:17

court, that it was a meaningful

16:20

sort of a difference in kind and not

16:22

just a difference in degree for her to

16:24

sit on that body and not

16:26

be the only sister among the women.

16:28

I think she didn't care

16:30

for that. She didn't care for the spotlight in

16:32

that way. She didn't care for the way that

16:35

her votes were always parsed as the woman vote.

16:37

And I think she did feel

16:41

the weight of the historical

16:43

burden on her shoulders that

16:45

she wanted to make

16:48

sure that while the spotlight was

16:50

shining on her, that she was

16:52

doing right by the country and

16:55

that she was doing right by the

16:57

women of the country. But

16:59

it's also the case that she

17:01

did have a lot

17:03

of humility to the task. Those

17:06

of us who clerked for her often

17:08

like to talk about this phrase that she

17:10

would use when she was making decisions, when

17:12

we would be having

17:15

a heated discussion about the

17:17

points that were being made by competing

17:20

sides in the briefs, and it was a

17:22

sort of, but this, but this, but this,

17:24

back and forth. She would sometimes

17:27

throw up her hands and she would say, oh, help.

17:30

And none of

17:33

us were really sure who

17:35

she was asking for this help, whether

17:37

it was, you know, she wanted the

17:39

clerks to help or she wanted heaven

17:42

to bestow some help upon. And it

17:44

was mostly just a

17:46

sort of exasperated cry of modesty that

17:48

she recognized that the task was really

17:51

big. And I think that everybody

17:54

who's taking seriously the job of being

17:56

a justice of the United States Supreme

17:58

Court feels that way. But

18:00

I think she particularly felt it because

18:03

of this extra spotlight that was

18:05

on her from the historical row. So

18:08

this leads so beautifully. I was

18:11

literally just yesterday taking a walk with

18:13

my dad, who's not much younger than

18:16

Justice O'Connor was.

18:19

And I quoted to him that line

18:21

that I have heard. You'll tell me

18:23

if I'm wrong. She was actually on

18:25

a throw pillow in her chambers, quote,

18:27

maybe in error and never in doubt.

18:29

Is that really a thing that she

18:31

had embroidered on a cushion? That's true.

18:34

It was fair. And I love it

18:36

because it goes to this exact question

18:38

you're just surfacing, which is kind

18:41

of performing certainty

18:43

even in the

18:46

uncertainty. And it just seems like

18:48

such a hallmark of how,

18:50

you know, I'm thinking of how she always asked

18:52

the first question at oral argument. She was kind

18:54

of very, very clear that

18:56

she knew the way. And

18:59

yet, as you say, she

19:01

was really changing and thinking.

19:04

Always said that Justice Marshall informed the

19:07

way she thought about the world because

19:09

she was always aware of what

19:11

she didn't know that he had taught her. And

19:14

so I want to play you this

19:16

little clip from her talking about her

19:18

decision in Bush v. Gore, which I

19:20

think was maybe in

19:22

error and also in doubt. But let's have

19:24

a listen. Was that the right decision? I

19:27

don't know. It was a hard decision to make.

19:29

But I do know this. There

19:32

were at least three separate recounts of

19:35

the votes, the ballots, in the four

19:37

counties where it was challenged. In

19:39

not one of the recounts would the decision

19:42

have changed. So I don't worry about it.

19:45

So you know regrets as far as the decision has

19:47

changed? It wouldn't have changed anything. So

19:50

I think that one of the things

19:52

that all the obituaries are saying today

19:54

is like, whoop, she's seated George W.

19:56

Bush. Was that as close as she

19:58

comes? saying I may have

20:01

made an error? It

20:03

might be. I mean, I actually

20:05

think that she publicly

20:09

stated at one point that there was an

20:11

actual case that she thought she

20:13

got it wrong on and that the court got it

20:15

wrong on, which was Minnesota

20:17

versus white involving judges,

20:21

elected judges and restrictions

20:24

on speech for them. But

20:29

that was out of character for

20:31

her to

20:34

do such a thing in part

20:36

because I think that she, I

20:38

mean, Justice O'Connor was above all

20:40

else maybe an institutionalist. She

20:44

thought a lot about the court as

20:46

an institution and its role as an

20:48

institution. She thought about the integrity of

20:51

the court and she thought about its

20:54

legitimacy in the eyes of the people.

20:57

And she was deeply, deeply attuned

20:59

to that in ways that fueled

21:01

most of her critics and that

21:04

you buoyed up most of her supporters. I

21:06

think it was behind a lot of the

21:08

pragmatism that she showed was that she was

21:11

thinking about the rule of

21:13

law and the doctrinal outcome, but

21:15

she was also thinking about real

21:18

police officers on the street

21:20

in Fourth Amendment cases and

21:23

real speakers in First Amendment

21:25

cases and real women in

21:27

affirmative action cases. And those

21:30

consequences for the

21:32

people were also in

21:34

her mind consequences for the court. I

21:37

think that's absolutely the explanation

21:40

for what we

21:42

saw in Casey where she just cared

21:45

enough about the court's

21:47

role and the legitimacy

21:50

and integrity of the court that

21:52

she wanted to elevate that as

21:55

a primary ideal. And I think

21:57

the finality also ties into that.

21:59

that once we have decided something, we

22:02

need to own that. We

22:04

need to lean

22:06

into the message of the pillow and

22:10

just have it be the case

22:12

that maybe we were in error,

22:15

but part of our obligation to

22:17

the public is to provide

22:19

some finality. So I'm

22:22

gonna say this and I mean it

22:24

really deeply, almost

22:27

every time I ever talked to Justice

22:29

O'Connor and mentioned that you were a

22:32

close friend, her face would light up.

22:34

She was so unbelievably fond of you.

22:36

I know how much she

22:39

shaped the way you think about the world and I

22:41

wonder if you can tell us, in

22:44

the years since you clerked for her, I

22:46

know you've been in touch with her throughout,

22:48

what is the sort of

22:51

enduring thing that we don't

22:53

understand about Sandra Day O'Connor,

22:55

the legend, the icon, the

22:57

rock star that you think about,

23:00

that you tell your kids

23:02

about that might surprise

23:04

us a little bit in just mulling

23:06

over her legacy today. Wow,

23:09

I guess, thank you for that. I

23:13

mean, she definitely modeled for me and for

23:16

all of us what

23:18

it means to be a good lawyer, but also

23:21

what it means to be a good person. She

23:25

believed to her core in

23:27

hard work and in bridging divides

23:29

and in the power

23:32

of ordinary people to make a difference. We

23:35

talked at the beginning about the

23:37

headlines that were declaring her the

23:40

most powerful, most important person in the

23:42

world. And she was in

23:44

a lot of ways at that

23:46

very time period, suggesting

23:49

to other people that they were the most important

23:51

people in the world. My

23:53

all-time favorite story about

23:55

my time with Justice

23:57

O'Connor was in the...

24:00

Several years after I clerked for her, I worked

24:02

at the University of Arizona and she came

24:04

to do a short course. We team taught

24:06

a course about the U.S. Supreme Court there.

24:09

And once she was

24:11

coming to visit and in

24:14

the days leading up to it, I

24:16

was taking my little boy to his

24:18

soccer practice. And I just offhandedly

24:21

said to him and to his little friend who

24:23

was in the back seat, I just

24:26

need you to remind the coach that we won't be

24:28

at practice later this week because the justice is coming

24:30

into town. And the little friend

24:32

who was in the back seat said to my

24:34

son, what is a justice? And

24:36

my son instantly said, oh, that's

24:39

sort of a fancy word for grandma.

24:42

I was, of course, mortified that I had not

24:44

somehow communicated to my kid what it meant to

24:46

be a justice of the United States Supreme Court.

24:49

But I was also just

24:51

incredibly touched because it absolutely

24:53

captured that sentiment. That's

24:55

how she presented

24:58

herself to my kids.

25:00

The New York Times is calling her the

25:03

most important person in the world. And she was conveying to them

25:05

that they were the most important people in the world. And

25:07

I think that kind

25:10

of modeling, that

25:13

sort of shared humility

25:16

in strength, I think is really

25:19

remarkable. She modeled courage

25:21

and competence and self-confidence,

25:24

but also incredible kindness. And

25:28

that's what I hope people can know

25:31

and remember about her. Rene Anderson

25:33

Jones is University Distinguished Professor

25:35

and the Lee E. Teitelbaum

25:37

Chair in Law at the

25:39

University of Utah. She's

25:41

an affiliated fellow at Yale Law

25:43

School's Information Society Project. She's joining

25:45

us from Yale today. And

25:48

for this academic year, she's also

25:50

a senior visiting research fellow at

25:52

the Knight First Amendment Institute at

25:55

Columbia University. I think that,

25:57

Rene, your clerkship for the New York Times is a very important

25:59

part of the conversation. or the

26:01

person that was fancy,

26:03

word for grandma, otherwise

26:06

first woman justice on the US

26:09

Supreme Court, Sandra Day O'Connor, is

26:12

something that Justice O'Connor would probably be

26:14

crazy, super proud of because you are, as

26:16

she would have very much approved of, never,

26:24

never in error and never in doubt. Thank you

26:26

for being with us. Thank

26:29

you. We are going to

26:31

take a short break, but we'll be right

26:33

back with Mark Joseph Stern and some big

26:35

announcements in just a moment. Mark,

26:41

hi Mark. Hi Dahlia. Oh

26:44

my God, Mark. Mark, you're back. We've

26:47

missed you very much. I am back. Did

26:49

I miss anything while I was gone? You

26:52

did miss a little bit of stuff and

26:54

you came back and then we

26:56

got plunged immediately into breaking news

26:59

and the passing of Sandra Day O'Connor

27:01

and a case that's

27:03

another chance for this court to just

27:05

end the administrative state. All that's happening,

27:07

we're gonna talk about it in a

27:09

minute, but in a big change

27:12

of tone and pace, I wanted to first of

27:14

all welcome you back and

27:16

have you help me reveal three,

27:18

not one, but three pieces of good

27:20

news on this show. I

27:22

know, good news is very off brand

27:25

for Amicus. Three pieces

27:27

of good news in

27:29

one episode of Amicus? It's

27:31

ridiculous, right? And we already spoiled

27:34

the good news number

27:36

one chunk, which is Mark, you,

27:38

my legal co-pilot, my jurisprudential wingman,

27:41

the wind above

27:43

my wings. You're

27:46

back in the jurisprudence

27:48

cockpit. I don't know

27:50

if that's how wings work, but I really appreciate

27:52

it and I'm just so happy to be back.

27:54

But what is good news number two? Good

27:57

news number two is your mini me. It's

27:59

a mini Mark. you will. Mark,

28:01

your family has, you didn't

28:03

just fall off the planet, you were on

28:05

paternity leave, your family has grown, and it

28:08

has grown beyond the birds and

28:10

the dog, and it now includes a tiny

28:12

little human being, a little baby. And

28:15

you are back from doing your

28:17

little part to launch a new

28:20

generation of future Supreme Court commentators.

28:23

Welcome back and welcome to your mini

28:25

me, who will be covering the Supreme

28:27

Court of 2057. What

28:31

an absolutely harrowing thought.

28:34

I rejected outright and have already

28:36

started teaching my son about

28:39

how he's not allowed to go anywhere near

28:41

the Supreme Court because it is stranger danger

28:43

and a bad, bad place. But you know,

28:45

I appreciate the sentiment. I

28:47

guess that that takes us to the third

28:49

good news announcement. And I think I do know

28:52

what this one is, but maybe you want

28:54

to cut the ribbon. It involves

28:56

a little bit of math, and this is not a

28:58

math show, but that math is

29:00

100% more, 100% more, more, more, more amicus. And

29:06

so if I understand that right, it means double

29:08

the Dahlia? Yes,

29:11

double the Dahlia. Sharp-eared

29:13

and sharp-eyed amicus listeners may have already

29:16

cut and done to the fact that

29:18

there has been a soft launch of

29:20

amicus as a weekly as opposed to

29:22

biweekly podcasts. But okay, here today we

29:25

are making it official. There is just

29:27

too much darn news to mash into

29:29

a show that broadcasts every other week.

29:31

And so this week is kind of

29:33

a case in point. We're going to

29:36

bring you a fresh episode of amicus

29:38

every single Saturday from here on in.

29:41

And it's a question of not just

29:43

trying to get our heads around the sheer

29:45

volume of legal news that is flying at

29:47

us, but because we, at Slater,

29:49

so committed to doing this

29:51

thing that we pledged to do last spring,

29:54

which is we're going to cover the court

29:56

in ways that scoop up absolutely everything that

29:58

has been sometimes left. along

30:00

the Supreme Court news gathering

30:03

trail, the judicial

30:05

conduct, the cases the court does not

30:07

take, the fallout from cases that made

30:09

headlines one time in June and then

30:11

fell off the radar. We

30:14

are going to cover cases in

30:16

a way that really

30:18

highlights the fact that millions of

30:20

people have their lives

30:22

forever altered by words that are written

30:24

in an opinion, penned in a marble

30:27

temple on a hill. To

30:29

do justice to all of that,

30:31

this very broad definition of doing

30:33

justice, Mark, we're a weekly show.

30:35

What do you think? As

30:37

long as you can promise that

30:39

there won't be any more mass

30:41

involved from here to eternity, then

30:44

I'm totally down. Let's do it. And

30:46

so with that, let's turn to the

30:48

Supreme Court and its doings. And this

30:50

week we are looking at the latest

30:52

case that hopes to dismantle a key

30:54

mechanism of the administrative state or

30:57

what we think of as how government

30:59

gets done. So, Mark,

31:01

in your post paternity leave print

31:03

debut, you described the lengthy two

31:05

and a half hour oral arguments

31:08

on Wednesday morning in Jarkesee

31:10

versus SEC as, quote,

31:13

a catastrophe so suffused

31:15

with infuriating bad faith that

31:17

even Justice Elena Kagan,

31:19

the model of a disciplined jurist, could

31:22

not stand it, end quote. Mark,

31:25

you require no introduction, but you do cover

31:27

the courts in law here in Slate.

31:29

It is so good to have you

31:32

and your inimitable words back. Thank

31:36

you. So happy to be here. Hey, two

31:38

essential opening questions. How much sleep

31:41

per night on average? You

31:44

want our sleep schedule because we have it like down to the

31:46

minute. I would say that

31:48

over a course of 24 hours,

31:50

I'm getting at least seven of sleep. And that

31:52

is a huge win for me. Oh, my God.

31:54

That's like that was the kind of sleep we were getting at

31:57

the end of last term. You

32:01

know, it's partly because

32:03

the baby is very

32:06

fickle. Some nights he's great, some

32:08

nights not so great. It's

32:11

partly because I'd like to think

32:13

I have a egalitarian relationship and

32:15

that my husband and I are

32:17

trading off sleep duties

32:19

fairly evenly. But also,

32:22

you know, as I've approached returning to

32:24

work, I've had an increasingly dire series

32:26

of nightmares about the Supreme Court that

32:29

keep me up. And so

32:31

the whole thing is very erratic and unpredictable. And if I

32:33

fall asleep in the middle of this recording session, listeners are

32:35

just going to have to forgive me because I will not

32:37

wake up. So that

32:39

brings me to my second

32:42

essential table setting question, which

32:44

is, I have heard this

32:46

case variously pronounced, Jarksey, Jarkazy,

32:49

Jarkoozy, and I

32:51

don't know. Mark, how are we pronouncing

32:53

it? Okay,

32:55

the Chief Justice said Jarkushi, which does

32:57

sound like a Jar Jar Binks Jakoozy

32:59

that I would not buy up until

33:02

this point. I think

33:04

the conventional wisdom in the press

33:06

was that it was Jarkazy. But

33:08

this guy's lawyer actually, hopefully told

33:11

the justices that it is pronounced

33:14

Jarkasy. So I

33:16

think we should go with what the lawyer

33:18

guy says. I mean, he didn't do a

33:20

very good job, but we should assume that

33:22

he at least got the pronunciation of his client's

33:24

name right. And will you tell

33:26

us before we get into the

33:29

legal thorns a little bit about

33:31

Mr. Jarkasy and the conduct that

33:33

brought him to the attention of

33:35

the SEC? Because

33:38

it's not like super awesome conduct.

33:40

And it reminds me a little

33:43

bit, we interviewed Senator Elizabeth Warren

33:45

in October when the CFPB case

33:48

was heard. And it does sort

33:51

of surface this larger issue. And

33:54

you make this point in your piece too, which

33:56

is one slightly likes to have a government that

33:58

are... does things

34:01

about people like what

34:03

Mr. Jarkacy allegedly did. It would

34:05

be nice. So Mr. Jarkacy is

34:07

a conservative talk radio host and

34:09

he created two hedge funds that

34:11

managed about $24 million in assets,

34:14

managed them poorly. He and his

34:17

firm lied to their investors about

34:19

where their money was actually going,

34:21

which is illegal, and dramatically overvalued

34:24

the holdings to jack up the

34:26

management fees to extortionist prices.

34:28

He said the value was just way

34:30

more than it was. And so the

34:32

SEC did what the SEC is supposed to do

34:35

and what Congress told it to do, which

34:37

is to launch an administrative proceeding before

34:40

an administrative law judge at the agency.

34:43

And the SEC prevailed in

34:45

this adjudication. The agency

34:47

fined Jarkacy $300,000, told

34:51

him you're not allowed to participate in

34:53

the securities industry anymore, and ordered him

34:55

to disgorge or give up about

34:57

$685,000 in unlawful gains. All

35:02

in all, really not the worst

35:05

penalty you can imagine for someone

35:07

who committed a scale of financial

35:09

crimes, more than a slap on

35:11

the wrist, but doesn't seem to

35:13

me to be like the epitome

35:15

of the administrative state run amok.

35:18

It does seem like the punishment fits

35:20

the crime if not a

35:22

little bit less severe than it should have been.

35:25

So Mark, this case is another one of those

35:27

cases. I

35:30

put it in the column from last

35:32

term with Moore versus

35:34

Harper, some of the

35:36

really wackadoo original claims in

35:38

Allen versus Milligan. This

35:41

case could have been just a full-on

35:43

disaster, and that is in no

35:45

small part, because in the court

35:47

below, we had in the

35:49

Fifth Circuit, this divided three-judge panel that

35:52

ruled against the SEC on everything,

35:55

on such capacious grounds that it

35:57

was one of those, oh. let's

36:00

just eat everything on the constitutional buffet

36:02

table. We're taking the shrimp. We're taking

36:04

the breadsticks. We're eating the croissants." And

36:07

so they did so much with

36:10

so little, and they pulled in

36:12

three different grounds on which to

36:16

rule for jargosy,

36:18

including the, quote,

36:20

non-delegation doctrine. So

36:22

this case would have theoretically not just

36:24

been the death knell for securities law,

36:27

but also huge parts of government for

36:29

the administrative state in general.

36:32

I think Ian Millheiser noted in his

36:35

piece this week that some

36:37

parts of what the Fifth Circuit

36:39

decided the case on might have

36:41

bolstered former President Donald Trump's

36:44

plan to replace much of the

36:46

federal civil service with his own

36:48

loyalist if he gets reelected in

36:50

2024. So the

36:53

court did not, at least based on oral

36:55

argument, go with the

36:57

full-on stuff-your-face-at-the-buffet-table view of this

37:00

case. They focused kind of

37:02

narrowly on this jury question.

37:06

But it could have been much worse is

37:08

not necessarily a good day for oral arguments.

37:10

Yeah? Well, I think

37:12

it's too soon to tell. I

37:15

think it's very, very likely that

37:17

the court will embrace one of

37:19

the three arguments that the Fifth

37:21

Circuit affirmed. And quite

37:23

possibly, it'll embrace another. And the one

37:25

that I think is pretty obviously off

37:28

the table is this non-delegation

37:30

claim. And that revolves

37:32

around the SEC's discretion to

37:34

bring these kind of enforcement

37:36

actions either before an administrative

37:39

law judge in-house or

37:41

in a federal court. And

37:44

if the Supreme Court entertained that theory,

37:46

it really would just

37:48

blow up the entire SEC and

37:50

many other agencies. Because this is

37:52

the kind of discretion that

37:54

agencies exercise every day. And

37:58

if the SEC was no longer allowed to... do

38:00

it, it might no longer be allowed to

38:02

do anything because it couldn't bring any enforcement

38:04

action at all. And

38:06

the justices across the spectrum clearly

38:09

weren't interested in that cockamamie

38:11

theory. But they were very keen

38:14

on this jury trial argument, which kind of

38:16

sounds good on the surface, but when you

38:18

dig in, falls apart and we'll talk about

38:21

it soon. And a few

38:23

of them, especially Justice Brett Kavanaugh, who

38:25

is like Mr. Executive Power when

38:27

there's a Republican in the White House, he

38:29

was really laser focused on this

38:31

other argument, which is that the

38:33

administrative law judges should be

38:36

stripped of their independence and

38:38

their protection against removal. And

38:40

that's what Ian was talking about when he

38:42

said it would empower Trump to replace the

38:44

civil service with Magdaloyless. And I do think

38:46

that's still on the table. I think there's

38:48

a chance the court doesn't answer that question.

38:51

But if the court does

38:53

strip these judges of their

38:56

independence from political interference, then

38:59

there's really no reason why the next

39:01

authoritarian leaning president can't

39:03

start meddling in these

39:06

agencies and really dictating the outcomes in

39:08

order to punish his enemies and reward

39:10

his friends. So not a good day

39:12

for the administrative state, not as bad

39:14

as it could have been. But as

39:16

you and I have said many, many

39:18

times on this show, we really shouldn't

39:20

let the Fifth Circuit set the terms

39:22

of the debate or the Overton window.

39:24

And so the fact that one

39:26

of those theories doesn't have any purchase at

39:29

the court doesn't mean that this is a

39:31

moderate court or that the other two aren't

39:33

still very destructive. So you just said this,

39:35

but let's spin it out.

39:37

It looked like the court was

39:39

mostly focused on Wednesday on this

39:42

narrow issue of juries

39:44

and the right to jury trials

39:46

and the fact that its

39:49

enforcement actions are brought in front

39:51

of these internal tribunals or administrative

39:53

law judges rather than

39:55

a formal, what we call an Article 3 judge.

39:58

And I wonder if before we

40:00

get to the sort of legal distinction,

40:02

you could just walk us through the

40:05

formal difference between an administrative

40:07

law judge on the one hand, which

40:09

is, as you said, the machinery for

40:13

deciding so many of these agency

40:15

cases, and an Article III

40:17

judge, and then we can kind of get to

40:19

the broader question of how that applies to the

40:21

facts of this case. Yeah. So

40:24

the administrative law judges are these in-house

40:26

judges at the SEC, and they're also

40:28

a bunch of other federal agencies. If

40:30

you ever have to, say, adjudicate a

40:32

Social Security claim, you'll be dealing with

40:35

an ALJ, as they're called. And

40:37

they are independent

40:40

in the sense that they

40:42

act like regular old judges,

40:44

not really influenced

40:47

by partisan wins, certainly

40:50

not biased against one party

40:52

or the other, at least in theory.

40:54

You know, they are obligated to follow

40:56

due process. They have a

40:59

really strong expertise on the subject matter

41:01

at hand. And I think that's important

41:03

to dwell on for a minute, because

41:05

the cases that come before the SEC

41:08

can be just mind-bogglingly complex, right? And

41:10

this one is fairly straightforward, but a

41:12

lot of them, you kind of need

41:15

to take like a year-long course in

41:17

securities law just to understand the

41:19

basics of what's happening. And

41:22

the administrative law judges, they come

41:24

to the proceeding with all that background

41:26

knowledge, and they can render decisions that

41:28

are not only sort of logical and

41:30

coherent, but consistent. And they

41:32

play an important role in policymaking

41:35

within an agency, because the commission,

41:38

along with the administrative law judges, they

41:40

can set policy based on the decisions

41:42

coming out of these hearings. And the

41:45

alternative to that is a jury trial

41:47

in a federal court before a federal

41:49

judge, who is ostensibly

41:51

also independent. We all know that

41:53

that independence waxes and lains, depending on

41:55

the person in the robes. But

41:58

there, first of all, the... proceeding tends

42:00

to be way more drawn out and

42:02

complicated. You know, it involves a jury,

42:05

so it involves Wadhir and involves a

42:07

jury of lay people. And look, you

42:09

know, we, we in this country believe

42:12

very strongly in the jury trial rights

42:14

when it comes to criminal cases, of

42:16

course, when it comes to the kind

42:18

of civil disputes that were traditionally resolved

42:21

by juries, one private party, so in

42:23

another cases involving private rights. But

42:26

when it comes to the US government

42:28

trying to enforce a really complicated law,

42:30

like securities law, against

42:33

a private party, frankly, I think

42:35

it's just very clear that juries

42:37

struggle to wrap their heads around

42:40

it. And juries do not provide

42:42

consistent decisions here. It's kind of

42:44

chaotic. It doesn't seem like

42:47

juries always grasp the basic facts

42:49

of the case. When a

42:51

case goes to a jury trial, you know,

42:53

it really prevents the commission and the administrative law

42:55

judges from using it to make policy. It's

42:58

a mess. And more than that,

43:00

it's an expensive, time consuming

43:02

mess that really cannot

43:04

substitute for ALJ adjudication. If

43:06

every single case that currently

43:09

goes before administrative law judges

43:11

suddenly went to a full on jury

43:13

trial in federal court, a lot of

43:15

the SEC's enforcement would just stop. It

43:17

would, it would come to a halt

43:20

because they do not have anywhere close

43:22

to the resources necessary to handle that.

43:24

And the federal judiciary doesn't have the

43:26

resources to handle that. The docket would

43:28

expand pretty radically. And some of these

43:30

cases would end up waiting years even just

43:32

to go to trial. And I think that

43:34

the parties would frequently just give up, specifically

43:36

the SEC would frequently just give up. So,

43:39

you know, on the one hand, you have

43:41

a sort of efficient technocratic adjudication by

43:44

an expert. And on the

43:46

other hand, you have a more

43:48

drawn out, complicated adjudication before a

43:50

jury of lay people. And

43:53

I think you could argue that both of

43:55

them have their strengths. But the reality is

43:57

that for years, the SEC has

43:59

functioned. been

46:00

seen as not a suit and so not

46:02

part of the Seventh Amendment scope. Second, the

46:05

Seventh Amendment limits this right to these claims

46:07

that would arise at common law and we

46:09

could talk for hours about what that means.

46:11

The Supreme Court doesn't seem to be so

46:14

sure, but in Atlas Rufing the court said

46:17

those are typically claims involving

46:19

private rights between private parties

46:21

as opposed to what were

46:23

called equity suits, which

46:25

are, sorry for the jargon, but

46:27

those are usually suits brought by

46:29

a sovereign here in the

46:31

United States government to enforce

46:33

public rights. And so in

46:36

Atlas Rufing the court said public

46:38

rights are created by Congress to

46:40

protect, you guessed it, the public.

46:43

And when the United States government

46:45

through an agency wants to enforce

46:47

those rights, it is

46:49

not bringing a suit at common law. And

46:51

so it is well within its power to

46:54

say we're going to enforce these public rights

46:56

in a federal agency

46:58

through adjudication and we

47:01

are going to exercise this power without the

47:03

oversight of a jury because that's just not

47:06

the kind of thing that the Seventh Amendment

47:08

requires. If I sued you

47:10

over something, anything, you

47:13

know, pick it, then we

47:15

would be well within our rights to each

47:17

demand a jury trial. But when the United

47:19

States government files a claim against somebody else

47:21

for running afoul of say securities

47:24

law or some other rule set

47:26

by Congress, that right doesn't attach. And

47:28

the key phrase in Atlas Rufing that

47:30

Justice Kagan just noted again and again

47:33

is that the court said the Seventh

47:35

Amendment is no bar to the creation

47:37

of new rights or to their enforcement

47:39

outside the regular courts of law. That

47:42

should be the end of this case.

47:44

And that is why Justice Kagan said,

47:46

you know, it takes a lot of

47:48

chutzpah for the securities fraudster here to

47:50

come in and challenge Atlas Rufing because

47:52

what he's doing is saying, hey, this

47:54

50 year old's precedent that has laid

47:57

the groundwork for the functioning of the

47:59

administrative state. We think it's garbage,

48:01

we think it's wrong, and you should just

48:03

carve out a giant hole that lets us

48:05

work around it every time. Let's

48:07

just listen to Justice Kagan

48:10

making her Kutzpah argument largely

48:12

because it's very

48:14

Kagan-ish. Nobody has had

48:16

the, you know, Kutzpah to

48:21

quote my people, to

48:23

bring it up since Atlas Rufin. So

48:26

Mark, I think the follow-on is

48:28

everything you have just set out

48:30

lays bare the decades-long

48:32

plan, which is the argument

48:35

that the federal government and federal agencies

48:37

are just way too powerful and they

48:39

get up all in your face and

48:41

they're kind of sinister. You

48:43

and I have had this conversation multiple times,

48:46

the idea that all

48:48

this power of federal agencies should just

48:50

be handed to the next president, him

48:53

and his incredibly honest

48:55

and apolitical Article III

48:58

judges. Okay, bracket

49:00

that, the weirdest part of this

49:02

particular oral argument for me, honestly,

49:04

is Chief Justice John Roberts saying

49:08

that that Atlas Rufin case at

49:10

age like 50, not even,

49:12

it's too old, it's really old.

49:15

So let's listen to him for one

49:17

second talk about, I guess,

49:20

50 is the

49:22

new, I don't know, 50,

49:25

it's too young for originalism, it's too

49:27

old for originalism. Here is his

49:30

claim, I guess, that he

49:32

sniffed the Atlas Rufin case

49:35

and it had gone a little long.

49:38

Atlas Rufin is 50 years

49:41

old and the extent

49:43

of impact of

49:46

government agencies on daily

49:48

life today is enormously

49:51

more significant than it was 50

49:54

years ago. Should

49:57

that be a concern for us or

49:59

a consideration? when we're trying to consider

50:01

what power the government has to take

50:03

away the jury trial

50:06

right or as an antecedent

50:08

to that to take away the right to

50:10

go into court. So Mark,

50:12

I guess that's my really big takeaway

50:15

is how can the people

50:17

tasked with saying that old

50:19

stuff is better than

50:21

make the claim that some old stuff is

50:23

too old to be of use? Well,

50:26

it's a great question Dalia because as

50:28

you know, I think you're hinting at

50:30

it really inverts the usual

50:32

formula of stare decisis of respect for

50:35

precedent, right? Typically and John Roberts has

50:37

said this many times, if

50:40

the case is old, the older a

50:42

case is, the more entrenched it is

50:44

in case law, the more respect that

50:46

it deserves, the more cautious this court

50:49

should be about trimming it or overturning

50:51

it because it has generated

50:53

a lot of reliance interest because it has stood

50:55

the test of time because many courts have

50:57

affirmed it and abided by it. But here

50:59

Roberts totally slips out on his head and

51:01

said, well, if this case is old, we

51:04

should have less respect for it. We

51:06

should be more inclined to overturn it

51:09

because I'm upset with how much the

51:11

administrative state has grown in the intervening

51:13

decades. Now, I think we should actually

51:16

sort of contest the premise of this

51:18

claim, not just about stare decisis, but

51:20

about this idea that the administrative state

51:23

has grown into some kind of monstrous

51:25

enemy of liberty and over the

51:27

last 50 years. I mean, when the court

51:29

confronted this question in the 70s, the administrative

51:31

state was extremely powerful. This was very much

51:34

post New Deal administrative lawmaking.

51:36

This was a bunch of federal

51:38

agencies with extraordinary power to set

51:40

policy and to enforce law against

51:42

private parties. This idea that everything

51:44

has fundamentally changed since then, I

51:46

just don't think it withstands any

51:49

scrutiny. So what we're really hearing

51:51

is Roberts' hostility toward the very

51:53

premise that these federal agencies should

51:55

have this power to enforce

51:58

these laws. prevention

52:00

prevent federal judges who I guess

52:02

are sort of like the pinnacle

52:04

of independence and expertise to John

52:07

Roberts to prevent them from

52:09

hearing these cases before a jury and I think Roberts

52:11

really gives the game away when he

52:13

talks about administrative law judges as

52:15

though they're just beady eyed bureaucrats

52:18

in the bowels of the federal

52:20

government basically part of the deep

52:22

state working against individual liberties you

52:24

know he calls them government employees

52:27

which I think is quite offensive

52:29

and almost slanderous to administrative law

52:31

judges who really do try very hard

52:33

to maintain their independence across different leadership

52:35

across different presidential administrations who have very

52:37

difficult jobs you have to make sure

52:40

that they do comport with all of

52:42

the requirements of due process and who

52:44

in my view generally are pretty good

52:46

at it you know there are some

52:48

who are better than others but Roberts

52:50

is sort of is sort of just

52:53

slandering all of them as unworthy of

52:56

this task of adjudicating these kind of

52:58

claims and in the process I

53:01

think he is hinting that the court's going to

53:03

go not just for this

53:05

jury trial argument but also

53:07

for this idea that either

53:09

the SEC commissioners or perhaps

53:11

even the president himself should

53:14

have power to interfere with

53:16

their work to fire them

53:18

to replace them with cronies

53:20

to basically scramble the independence

53:22

that does currently exist and

53:24

refashion these administrative law hearings

53:27

as a kind of weapon against their

53:29

enemies which is certainly a nightmare

53:31

and would mean that the administrative state

53:34

is out of control but it's a

53:36

bit ironic that you know if the

53:38

administrative state does take this dark turn

53:40

it'll be because of the conservative Supreme

53:43

Court claiming that its interference was necessary

53:45

to protect us from that

53:47

state it just it really doesn't square

53:49

the federal government employs almost

53:51

2,000 administrative law

53:54

judges there's about

53:56

650 non

53:58

article 3 judges who

54:00

hear immigration cases, there are fewer

54:03

than 900 Article III judges. It's

54:07

a small bench. So if, let's

54:11

say, the challengers here fish

54:14

their wish and the United

54:16

States cannot bring any cases

54:19

in administrative forums, how

54:22

are cases meant to be adjudicated? And

54:24

it's particularly weird, not just in terms

54:26

of the number of judges, as you

54:28

said, and the unbelievable weights,

54:30

as you said, but it didn't

54:32

seem as though the lawyers

54:35

for Jarkassee were able to even explain

54:37

what relief they thought. No, and that's

54:39

a big problem with this case and

54:42

always a red flag that they have

54:44

all these grand theories, but they're rather

54:46

unclear on exactly how the theory should

54:48

be put into practice by the court.

54:50

And we've seen this problem in so

54:52

many previous cases where the court will

54:54

take this dagger to the administrative

54:57

state and then to try to maybe

54:59

limit the damage, it'll just sort of

55:01

rewrite the law and give, I don't

55:04

know, give these appointees this new power to

55:06

do X or Y or take this power

55:08

away or give the president new leeway to

55:10

do whatever and really scramble Congress's design. And

55:13

so I frankly don't think anyone knows

55:16

what it would look like if the

55:18

court embraced this jury trial argument or

55:20

this anti-independence argument for administrative law judges,

55:23

except that it would be bad. I

55:25

think that one through line here, as

55:28

we've been noting, is this intent

55:30

to sort of paralyze enforcement of

55:32

federal statutes. And we're not just

55:34

talking about the SEC here, right?

55:36

So many agencies do this kind

55:38

of adjudication. The Consumer Financial Protection

55:40

Bureau, the EPA, the Department of

55:42

Labor, all of these agencies that

55:44

enforce public rights against lawbreakers, often

55:46

in the type of cases that just can't

55:48

be heard in federal court because, say,

55:51

the plaintiff wouldn't have standing or there isn't

55:53

a concrete harm in Article III terms. And

55:57

so what I think the goal here

55:59

is to paralyze... the entire system.

56:01

And that would force both the

56:03

SEC and every other agency

56:05

that does these adjudications to

56:08

stop or dramatically roll back enforcement against

56:10

a whole lot of lawbreakers because they

56:12

just wouldn't have, again, the time or

56:14

resources to do it. They'd have to

56:16

go to jury trials every single time

56:18

in a federal court, which they don't

56:20

have the capacity to do and the

56:22

courts don't have the capacity to do.

56:24

And the courts are already really overwhelmed.

56:26

The dockets are full. We actually need

56:28

new judgeships, but Congress won't create

56:31

any because it's become partisan football.

56:33

So yeah, it's depressing.

56:35

And it's especially depressing because all of

56:37

these arguments are just built on bunk

56:40

originalism. And this is no surprise to

56:42

listeners or anyone who follows this court.

56:44

But it's so obvious here. I mean,

56:47

one of the Fifth Circuit's key quotes

56:49

in its decision was from William Blackstone,

56:52

who was a key inspiration for

56:54

American constitutional law. And they made

56:56

it up like it's not a

56:58

real quote. Like they just totally butchered

57:00

this Blackstone quote to support them. And it

57:03

does not support them at all. I mean,

57:05

several of Kavanaugh's arguments rest on

57:08

these embarrassing mistakes that misunderstand the

57:10

historical record, that misunderstand what the

57:12

framers actually said or just misattribute

57:14

quotes to the wrong people. There's

57:16

all of this practice that goes

57:18

back to the founding that shows

57:20

that these adjudications were considered totally

57:23

kosher and the courts just ignoring

57:25

it. I mean, real historians have

57:27

sunk their claws into this stuff

57:29

and figured out that whatever

57:31

you think about jury trials, if you

57:33

think every single dispute should go before

57:36

a jury of your peers, whatever, that's

57:38

your right to think. But that's not

57:40

what the Seventh Amendment guarantees. It just

57:42

isn't. It wasn't how it was understood.

57:45

But this ostensibly originalist court is going

57:47

to say that it was anyway. The

57:49

real historians, as usual, are being totally

57:51

sidelined. And the kind of pseudo historians,

57:54

the activists, the law professors who were

57:56

devoted to this partisan project, they're the

57:58

ones whose bogus history. gets elevated

58:00

by this majority. Mark, you

58:02

have been so deeply, deeply missed on this

58:05

show, like so much so that I get

58:07

grumpy reader mail. So thank you for coming

58:09

back. Thank you for

58:11

coming back with a mini me in tow. It

58:13

is always a treat to talk to you. And

58:15

I look forward, as we said up top, to

58:17

getting to talk to you every week

58:20

or almost every week in the near

58:23

future, because I don't

58:26

even, because why? Because you're

58:29

Mark. Thank you for

58:31

being Mark. Thank you, Dahlia. And

58:38

that is a wrap for this episode of

58:40

Amicus. Thank you so much for listening in.

58:43

And thank you so much for your letters

58:45

and your questions and your comments. You can

58:47

keep in touch at amicusatplate.com. You

58:50

can always find us

58:52

at pacemix.com/amicuspodcast. Today's

58:54

show was produced by Sarah Birmingham

58:56

and Patrick Ford. Alicia Montgomery is

58:58

vice president of audio at Slate.

59:01

Susan Matthews is Slate's executive editor.

59:03

And Ben Richmond is our senior

59:05

director of operations. We'll be

59:07

back with another episode of Amicus next week.

59:10

Until then, hang on in there.