Circuit of Shame

Welcome to another episode of America's Constitution. I'm Andy Lipka here with Professor Akil Omar on a beautiful summer day. Hello Akil. Hey Andy, thanks for doing this. Yeah, we're get we're getting up there. We're in the one nineties now. I think this is n episode one ninety one. Hard to believe. We've done a hundred and ninety one weeks in a row, never missed one. And it's possible, audience, we're gonna miss one or two going forward, but um we're doing the best we can.

Yeah, I'd say it's pretty good from that point of view. What's Lou Gier's record? What's not his record anymore because Kyle Ripkin broken? Yeah. Yeah. Yeah. Well, two thousand one hundred and thirty consecutive games, I think. Okay. Pip, I think, is the what's sticking in my head.

Yeah, that's who he replaced. That's right. Okay. Well, of course the courts are in recess now, waiting for the first Monday in October to come back. and no Nixon Tapes case this summer, I guess, for them to go leave their fishing and their book writing to return. So we continue to cover what's in the news and also look back at the prior term.

And in recent weeks we've been talking about proposals of court reform in various ways. And we talked a a little bit about or a lot about the eight eighteen year proposal. And I think we're gonna talk a little bit in in future episodes about the possibility of some kind of either constitutional amendment or some other way to Thwart the worst impact of the immunity opinion.

Bill out by Chuck Schumer on that. I think even an op-ed that he may have just penned for the Times or the Post. I haven't read it yet. But we'll talk about the Schumer bill. Speaking of op eds is an op ed on that this week in the Washington Post by our friend Ruth Marcus. Just to tease a future episode, Ruth has agreed to come back and talk about the issues there and I'm sure we'll get on to other things as well.

Yeah, she talked about the Schumer bill and she has promised to come in maybe even next week. Right. So we look forward to that. The other part of the Biden plan that he announced at the LBJ Library had to do with ethics. whether there could be some sort of enforceable ethics code on the Supreme Court that might be tougher than what exists now and perhaps more

Tougher in terms of maybe more defined standards and also more teeth in enforcement, maybe. That's an issue we haven't gotten into that much, but we're gonna talk today about something which may touch on that actually.

We're going to talk about what happened in the last term regarding the Supreme Court's relationship with the lower court. And in particular, the Fifth Circuit is going to be a subject for our uh scrutiny. Now, the Fifth Circuit was overruled pretty frequently in the last tournament, overruled with some gusto by the Supreme Court in certain cases, which we'll discuss.

I guess we should mention that the Fifth Circuit is not the only circuit court ever to run into trouble with the Supreme Court. In the past, the Ninth Circuit was a court that w was frequently overruled. by the Supreme Court. And of course the Ninth Circuit is a very liberal court and was frequently overruled by a somewhat conservative court. This is a little bit different in a way because you have a pretty conservative Supreme Court, at least in general.

And the Fifth Circuit is even more conservative. So you have a conservative court overruling of a conservative circuit. It's a little different than what we were talking about with the Ninth Circuit. Akhil, there's a lot of things that are brought up by I think a lot of questions that are brought up by this. For example, why is it bad for the circuit court to be overruled repeatedly? And I think we touched on that in our episode on on Judge Cannon, but we can get into that.

There's questions about what can the Supreme Court do about it or what can anyone else do about it and other things as well. But why don't we start off with your characterization of the Fifth Circuit and of the cases that some of the cases that it was overruled on in this past term.

So it's the fifth circuit. The circuits are numbered. And they're defined geographically. And it's a big country. And so I'm gonna tell you a little bit about the Fifth Circuit as opposed to the Ninth Circuit. The Fifth Circuit is the deep south. Texas is at the heart of the Fifth Circuit. In the old days, the Fifth Circuit basically included pretty much almost the former Confederacy, but then it got split.

into a f a fifth and an eleventh circuit. And the the eleventh circuit is basically the southeastern part of the old confederation. It includes Florida, for example, and then the Fifth Circuit is the remnant of that, not to be confused again with the old Fifth Circuit, which was bigger, but the new Fifth Circuit is basically southwestern. Confederacy anchored basically in Texas.

And let's distinguish that, for example, from the Ninth Circuit, which is the West Coast and California, and its anchor is California. And California has more seats on the Ninth Circuit. than all the other states put together. You got I think Arizona and Oregon and Washington and Hawaii, but California has more people than all of those states put together and therefore more judges. And their other circuits, the seventh circuit is very prominent, its center of gravity is Chicago

The second circuit, the center of gravity is New York City. Connecticut is in the second circuit. I clerked on the first circuit, which is New England, set centered in Boston. Well, Kiel, you mentioned that there are more judges on the Ninth Circuit because there are more people. Right. Now of course if the Supreme Court had more judges under its current setup

wouldn't necessarily hear more cases because it hears its cases on Bonk. So there's a difference there with the circuit case, circuit courts, correct? The more judges means more cases They set in panels.

Let me just take step. Let me identify three or four things about what circuit courts are. And I said something that I'm gonna come back to, which is it's a big kind And this is relevant because different parts of the country think very differently. That's what this presidential election is all about. It's going to be blowout one way in Texas.

which is the fifth circuit, when it's gonna be a blow out the other way in California or in New York. The Democrats are gonna win in California and New York and Uh Illinois, Chicago, for that matter. So so that's relevant that these circuits are defined geographically and America divides geographically. Always asked north against south, coasts against the center. The third big distinction would be cities against

And DC is its own circuit. So justices on the Supreme Court, eight of the nine of them come from the circuit courts. They're the sitting Court of Appeals judges at the time of their appointment. The only one who wasn't was Elena K. And within the circuits they often come from the DC circuit, that's Katanji Brown Jacket.

That's Brett Kavanaugh. That's the Chief Justice, Sean Roberts. Before then we could talk about Antonin Scalia. We could talk about Ruth Bader-Ginsburg. So the circuit courts basically are the feeder. to the Supreme Court and within those circuit courts, the DC circuit kind of most of all, okay, so it's its own circuit, does have a number, it's just called the D C circuit. And then there are these numbered circuits.

I said the first is in New England. I clerked up for Stephen Breyer on the first circuit up in Boston. The second is sort of New York City based. The third is a little bit lower down, New Jersey, uh Pennsylvania. So Circuits are divided geographically and America is divided geographically.

Okay, and this is the beginning of the answer to your question about the Fifth Circuit. You say, oh, it's totally different than the Ninth Circuit, because this is a conservative Supreme Court and a conservative Fifth Circuit. No one in Texas would think that, Andy, it's because you are from New Jersey. They would think, oh, this liberal Supreme Court. That's how they think down in Texas. They think San Alito is some wild Ivy League liberal side.

Texas is deeply red. When we Democrats one day dream it's gonna be blue again, oh for Lyndon the days of Lyndon Johnson and Anne Richard. So here's the point. When you have geographically defined service, you're often gonna have judges on those circuits who come from those localities. And those localities have very different perspectives on the world.

It's not a surprise that the Ninth Circuit was very liberal'cause California is liberal and so is Oregon and Washington and Hawaii and oh I hope Arizona. The Supreme Court used to be populated actually circuit by circuit, and it had to actually have a geographical balance, in fact. Dread Scott. was way the heck out there and here is why. Because actually the justices were picked by circuit and the South was over represented on the Supreme Court.

because roads were bad and so y it was harder to travel. So the circuits were actually geographically smaller and three fifths clause, so they got to count actually slaves. as part of their population. So per capita, the South was over represented on the Supreme Court in the old days because it was actually defined by circuit. And we talked about that actually in uh our last episode about how the Supreme Court was originally structured with circuit writing most

in mind. Just very concretely, the North the the non slave holding North had the majority of the free population in America. And yet five of the nine seats on the court in Dred Scott actually came from the slaveholding South. They had like a I think a third of the free population, but a majority of the seat.

So that's one thing that now w now here's a second thing about the circuits. And this is to your question about why do more judges mean more cases for the circuits and not for the Supreme The roll of the circuit, Jack. is to actually be the judge of last resort, the court of last resort in deciding individual cases. Everyone has a right to come to court.

And bring a lawsuit and let's just t look at it from the point of view of the plaintiff, but we could do it from the defendant's point of view. And then win or lose, you have a right to take an appeal as of right. It's not discretionary. It's not certi. You have an entitlement if you think the trial judge or jury was wrong to take your first appeal it's as of right, and it's to the circuit court.

And the circuit court is supposed to make sure that justice was done, the law was properly applied in your case. Now the Supreme Court has a very different role because it can't hear all cases as of right. It's a court that actually has a discretionary document. And it takes a very low percentage of the cases that are petitioned to it. Thousands and thousands of cases are petitioned, and it accepts.

maybe sixty or seventy. In the old days in the Warren Court maybe it's accepted two hundred or three hundred. But but no more than that. Maybe two hundred, maybe I would have to look at the numbers. But now we're down to sixty or seventy. And the Supreme Court sees its role as different. It's a national norm declarer. It sets the rules for the whole country. And that's why Vic in an earlier episode said dicta makes the world go round.

It's not about the individual case and the client. It's about trying to get the law right for all of of America. And that's not the role of the circuit judge in general. So the circuit judge in general has two responsibilities. looking downward to the parties, she's supposed to make sure that the party got legally what the party is entitled to. Okay, and looking upwards, she's supposed to make sure that she's not out of sync with her bosses on the Supreme Court. And this is a very difficult job.

And it's the bottleneck in the system in certain respects,'cause there are only so many of'em, maybe around a hundred in all. Just to keep the math easy, this isn't quite true, but I just think about it in base ten. There are roughly ten justices, there are roughly a hundred Court of Appeal judges, and there are roughly a thousand lower federal court trial judges. Those numbers are off but the rough order of magnitude. And so the real bottleneck is every litigant in America.

is entitled who goes to federal courts to an appeal as of right from the circuits. And they sit, Andy, and you were uh beginning to move in this direction, in panels, whereas the Supreme Court typically sits on banc all nine. J and the circuits can hear on bank cases. in m more than individual panels. But even then in a huge circuit like California, not all the justices sit on buttons. I think there are thirty five or so, maybe plus or minus justices.

on that ninth circuit, more than half of them from California. And when they do it on bank, I think it's any randomly selected fifteen. In our last episode, Andy, I think, or maybe the one before that, you said, Oh, like the lottery system for certain per Courts of appeals use the lottery system when there are in effect appeals from the panel. Last point. Bring a case, it's a trial, it's one judge typically, and maybe a jury, maybe not.

It could be civil, could be criminal. Then there's an appeal as of right. Your circuit, which is geographically defined, is typically a three judge panel. And then if you don't like that, you can ask for the circuit to hear the whole thing on bank. In many circuits, that's all the judges. California would be a randomly selected fifteen. And Of course, you can also petition for Sir Sherery, that's discretionary, it's not as of right. And even if the justices are a hundred percent sure

that you got screwed in your case. The law was not correctly applied to you.

They don't think that's a sufficient reason in general to hear your case. They do not think their job is to do justice in the individual case. Their job is to decide, for example, circuit split, so there's n a national uniformity when and not just the when the circuits are split, but when state courts maybe are at odds with each other or with federal courts, they see their job as national uniformity and norm declaration.

rather than dispute resolution for the individual parties. Which is why finally, by the way, Andy, How we wanted, we hope our briefs are important because our briefs at the Supreme Court aren't just about this litigant or that one. They're trying to help the court get the law right for the future for us all. So that's all very interesting. You're talking about the structure of the judiciary and it's important from a practical point of view in terms of

You mentioned that everybody has a right to an appeal and how you're gonna get all these appeals heard. Obviously you need more than nine justices nationwide and so we have all these judges at the circuit level, like the United States courts of appeals for the X circuit. Mm-hmm. There's also district court judges below them. Mhm. But at any rate so you have this structure of the judiciary. And as America's constitution is sponsored by Ever Scholar.

And we have uh been talking in recent weeks about a program that's coming up in November, The Arc of History in Asia, where we talk about freedom and authoritarianism in Asia. You might what does this have to do with what you just said? Actually, one of the things that we're studying is the judiciary in China.

under the Qing Empire and what happens when it becomes a republic and what kind of reforms are needed. And one of the things that came through in this reading, this is not something that Akeel has been reading or is going to go into, but very interesting how The structuring the judiciary very much influences the nature of whether a a nation is centralized or decentralized. And you were talking about how people are different.

in Texas than they are elsewhere and they look at the court differently. In Qing China, for four hundred and sixty million people, there were only about sixteen hundred judges. for the entire nation. And interestingly, in China, every case, every guilty verdict had an automatic appeal, had to be reviewed by a higher court.

And so th this was extremely difficult. And as a result, you have extra ju judicial, local people like the family has an important role in administering justice, local, nonjudicial uh authorities administer it. Very interesting how the way you structure judiciary reflects your nation's values in some way. And it might be interesting for our audience to think about how the structure that Akiel was just talking about embodies America's values.

Which might prompt discussion in in the future. Anyway, just to give the audience an idea of how these Ever Scholar courses that seem okay, this is a constitutional law podcast. What does this have to do with the arc of history in Asia? But actually There's always connection. Oh, the huge Andy, first of all, I love Every Scholar and I just want to get for the record, I just want to tell everyone you should love its two.

Okay, my big picture view of the Constitution,'cause I haven't plugged the words that made us within the last five minutes, is what makes the American Constitution work is the scope, the geographic scope of America. Okay? Um'cause it has a certain defensible structure to it. Um if you control the landmass from sea to shining sea, it's not so easy to to invade you, for example, from from Europe or Asia.

hugely important. America succeeds to a very great extent because we don't need big standing military and we don't have one for the first hundred and fifty years. If that's how you look at the world, you say, Oh, Britain's an island, that's a real advantage. Oh, Australia's an island, maybe that's a a real advantage. France has land borders and Germany has land borders and uh Russia has land borders and oh that that's gonna be an issue. And then you think about a place like China.

And you think about the this whether the Great Wall worked or not, and China is America's counterpart in the world actually in land mass and ambition. Um and The question is, Andy, if for geostrategic reasons you actually want to have a broad geographic empire of a certain sort or republic, how do you actually connect to the different localities? In America we call that federalism. And I wrote a a book about this in b uh a little book called The Law of the Land. And the circuits are an important

part of that. They're about bringing justice to every man's door. And this is our last episode. I craimed that the most important function of Supreme Court Justice the Founding wasn't to sit in D C That was only two months a year, but to fan out in the circuits and explain to people in the hinterlands

what the center's trying to do and to listen to them if they don't like it, to report back. And this is connected to what you just told me, which I didn't know, which is very interesting about China. Okay, you don't have telephone. you don't have internet. Okay? Now if everything has to flow to the center in these pieces of paper or something. And of course Chinese, you know, give us you know paper a and writing. And then you have to write an answer and then send it back.

you know, very clumsy and imprecise, inefficient. Okay. Now contrast that. With so if everything that the Fifth Circuit does has to actually flow up to the Supreme Court, which can't hear everything. That's what we just talked about. So they only have to pick a few cases to to hear, and then they have to write this long opinion and send it back.

Think about how different the world is if routinely sitting or emeritus Supreme Court justices, senior Supreme Court justices in in our plan, if routinely they are actually fanning out.

to the Fifth Circuit and informally saying, You guys are way the heck out there. And let me tell you, here's actually what your colleagues in Washington DC are saying. We're not going to put that in the opinion, but that Part of what circuit writing was all about at the founding to prevent the hinterlands from straying too far from what the center is trying to do and to enable the center to hear how the hinterlands are reacting to all of that.

Um and at the founding that was circuit writing. And so there's this nice question we're about to segue into it about why certain circuits are not hearing the message very well and getting smacked down Fifth Circuit, they're too conservative. Ninth Circuit actually used to be too liberal. They're actually more in sync now, they're more in line. one final thing to put a pin on it at the founding, remember the circuit judges are in the main

Supreme Court justices who are fanning out. They're also Article III judges who are designated to be in one spot. Okay, but they're joined by justices from the center riding around. I don't know if China ever tried to do that, whether they took their um central imperial officials and have them actually ride out to the hinterland. But that's the circuit riding idea and it helped America actually knit together because we are very geographically

A far flung and the different parts of America see the world totally differently. And you're seeing that in this presidential election, in that there may be at most six or seven swing states. Okay. The rest are very safely red, very safely blue. They're so they're very different. Yeah, it's interesting. In China the examination system was very important, as many people know. And so you would have these local officials that would have to take these centralized

exams. It's quite interesting because it has a lot of relation to what we're talking about with the judiciary. The exams were basically a test to how well you could espouse the dogma that came down from the center. Yes. So it so in some ways it would be like a circuit judge taking an exam as to how well he's able to say how the Supreme Court would rule. But this is not just on the court, these are officials in general.

And so it's quite applicable. And anyway, if you passed the exam, then you became a local o official of importance, but you did not get to serve in the place that you grew up. They moved you to another place to try to reduce corruption. So quite interesting that way. Anyway, so we said, okay, the Fifth Circuit is way out there. So how is it way out there? What happened when this last term to back up this statement that the Fifth Circuit is way out there? Any cases that stood out for you?

Yes, and not just cases, but individuals, some of whom are friends of mine, and we're going to name name. in this episode. And you asked me earlier about ethics. So maybe actually this episode could be called something like naming and shaming or talk of shame as well as the the the walk of shame because ethics r in part,'cause I don't love actually trying to impeach and remove judges or justices. Not my style. I don't want to lock them up.

And'cause I think it's a hard job and most of them are doing their best and they could make a lot more money, even the circuit judges, not just Supreme Court justices doing other stuff and I Thank them for their service, but we have to keep them honest and the best way to keep them honest when they go off the reservation so to speak, when they drift off, we should call them to account on this.

podcast and and elsewhere, because that's what will keep them more honest. The Supreme Court is doing that subtly when it reverses them, but if the Supreme Court has so many audiences,

It's trying to tell all the other judges in America and the lawyers and the New York Times and the Washington Post and the National Review and the Law Professors and the the the future. So has many audiences, but one of his audiences is the court below, explain to the court below, to the judges below, to be a little bit more blunt and personal about it, where they went wrong, if they went wrong.

you know, where they went right. Attaboy, keep doing that. And when there were circuit writing there were these informal mechanisms for them to do just that. But now they're trying to do it in their opinion and we're gonna go through some of the opinions and talk about how the Fifth Circuit got

Smacked down, but good. Maybe we could start actually with the something in your wheelhouse, Andy, the myth of prista. Because this Fifth Circuit got smacked down on the issue of standing, and they didn't get smacked down five four, six three, seven, two, eight, one. This was nine oh. Okay, Jim Ho, my friend, are you listening? Because you wrote a concurrence in that case.

on standing that you got smacked down nine oh and we're going to talk about it. And that's not the only case that you got smacked down on and Corey Wilson. I don't know you so well. You're a Yale Law School graduate. We're gonna talk about you'cause you got smacked down but good. And we need to talk about that. And you're singling out some judges here, but we should point out that on our podcast we've also singled out judges We have.

why I love Amul Tapar and Kevin Newsome and Roy Altman and and Lewis Lyman and Richard Sullivan and and others. So I said, here's some amazing Bill Nardini, many of them. Here's why I here are their names and here's why I respect them. Now I was better behaved. I didn't actually explicitly mention why certain people were not on my Christmas.

Okay, but they weren't and partly it's and but we're gonna talk a little bit about them. It's'cause I love them personally and I r really r respect them in so many ways, but I don't think That they are on board with what the Supreme Court is telling them, and that is ground for criticism because. I get to criticize the Supreme Court. Okay, that's my job as a scholar. It's my duty as a scholar.

If you're a judge on a court that's inferior to the Supreme Court, oh, you can still criticize them. You can, but you actually have to follow what they're saying. That's what it means to be a judge on an inferior court. And twice the Constitution uses that word inferior and it does use

the word supreme. You're supposed to be a lieutenant. They're the generals, the field marshals, and you have to carry out their orders. You can explain, in your opinion, why with the greatest of respect, You disagree, but when you're getting smacked down and you're not getting reversed five to four, oh, that could happen to anyone.

'Cause that swing justice might not even know until the very end which way she's in the end gonna decide. Or he, Amy Coney Barrett or Anthony Kennedy. But when you're getting smacked down, nine oh or repeatedly eight one seven two. We're going to talk about that on this podcast.

Yeah. So we're not gonna go into the details of of the cases really because we've already done that in other episodes. But in the Mipha Pristone case, here's just an example. It's not just that that it was a big Yeah, but the language used in the opinion was was uh quite skeptical of the theories that were put forth. but what the issue was. So th in in the Mifepristone case I think it was an issue of standing. Right.

ER doctors somehow could have the right to bring a lawsuit. The theories of causation were very attenuated. I I couldn't quite understand what law actually entitled an ER doctor to complain if Months earlier, some patient got a medically indicated pill. Yeah, I think i it was actually more prospective in in a way in the sense that they're that they might be put in a position where they would have to violate their conscience or something like that, but in fact there were conscience laws

that and every hospital had procedures to protect them. So they never actually were in the position that they were complaining that they might be in. And there wasn't a clear law that gave them a legal right, a cause of action so far as I could determine. And so that what Justice Kavanaugh wrote was that the Fifth Circuit was advancing an unprecedented and limitless approach to standing.

Which would seemingly not end until virtually every citizen had standing to challenge virtually every government action that they do not like. Right. And Jim Ho had this ver c he I mentioned him'cause he is my friend. I'm not lying when I tell the audience when he comes to campus I do events with him. I like talking to him. But He was way out there and he wrote a special concurrence with theories of aesthetic standing and conscience standing. And I wanted to know

Where in the constitution, Jim, are you getting these ideas from? And I didn't see it, and I predicted that he was going to lose. The lawyer who argued the case is Friend of mine, a student of mine, Aaron Morrow Hawley. Her spouse is Josh Hawley. I knew them both before they knew each other and and I like Erin exceedingly. And she's a lawyer argument case. But I think when we did an earlier episode on this podcast, I think I told our audience that

I just wasn't seeing why these ER doctors had an entitlement to sue, had a cause of action. And the Supreme Court in the end agreed and they didn't agree, just to say it one more time, it didn't agree five to four. They agreed 9-0 and then you said and not just that, but it's not just the number. It's what they said. What is this? This is way out there. Okay, so that's one strike.

And then we have another case where Judge Ho wrote a concurrence and that was the Rahimi case, a case we've talked about at length, the gun case, which is a follow up case to Bruin in some ways, and actually walks back from some ways of looking at it, the opinion in Bruin. And so in a way it's good that this case came to the court and the court n notes, or at least some of the justices note, that there was confusion at the lower court.

some degree. So it's good that this case came to came there, but the Fifth Circuit d again gets shot down and this was heard by a a panel of three judges Jones, Ho and Wilson. and Judge Wilson writes the opinion and Judge Hull writes a concurrence. In this case. And Judge Wilson is a I believe a Yellow Law School graduate. I don't believe I know Judge Wilson. I if I apologize if I've met him and I'm just not remembering. He's a Trump appointee.

He wrote two opinions this term that got smacked down but good by the Supreme Court. So we're gonna talk about another one involving the Consumer Financial Protection Bureau. Yes, we're naming names. Okay, because you have life tenure and and they don't want you impeached or uh locked up, this is actually appropriate. To because the justices they're signaling this, but our audience might not understand that they're actually signaling certain things. Because I don't want you to keep doing this.

Follow what the Supreme Court is saying because that's your job. I don't have to. I get to criticize them because I didn't sign up to be a judge on an inferior court. I have a different kind of life tenure. Okay? And it's subject to critique in other ways. In the Rahimi case, I feel a little bit for the Fifth Circuit, but not that much. And here's why. And the opinion is different, Andy. You put your finger right on it. They're not saying

Wait, the lower court here is way the hell out there. This is unprecedented, just like what you said about Kavanaugh, okay? And this this wasn't even nine oh, okay? This was eight one. Justice Thomas actually agreed with it. So there's that. And the opinion for the eight doesn't say this what the court below did was just weigh the heck out there. It the court's opinion per Chief Justice Roberts says actually a lot of courts below have been having difficulty with this and maybe this is

partly our responsibility because maybe Bruin wasn't so uh clear or easy to follow on certain points. All fair Here's why it's a hard job to be a court. Because there's what the court says and there's what the court does. You could read their opinion or you could count noses. Now I went around last year talking to a lot of

judicial conferences, many of the different circuits, hundreds of judges I I spoke to. And everywhere I went, they asked me about one thing first. How the heck are we supposed to apply this historical test in Bruin? We just don't know that we're not historians. What the heck are we supposed to do? I think at least 15 judges asked me that question one way or another, informally or formally. And our audience will remember that I always took the position from the day Bruin came down that yeah.

has this historical test and that actually might be too aggressive. Um originalism can give you the answers to big picture ideas, but it's clearly in It's clearly not in can tell you whether it's about an individual right or not, but at the margins, at the edges of what about this gun, what about that gun? What about this gun regulation? What about that gun regulation? Originalism isn't so good at that. It's good at telling you what

High noon, clearly in, what's midnight? Clearly out. Oh, but dawn and dusk originalism isn't gonna be very good at that. I said that a long time ago. And what I said is I think my friend Clarence Thomas was too ambitious and trying to get originalism to do what it can't easily do, especially'cause guns are so different now, society is different. So I thought was an unduly ambitious effort to do a kind of originalism. But here's what I also said.

I said, all you have to do is count noses and you will see. that actually without Kavanaugh and the Chief, there are not five votes for Bruin. So you have to pay attention and Kavanaugh and the Chief wrote a separate opinion. It's technically not the opinion of the court. So technically if you're a lower court judge, you're bound by the opinion of the court. But if you're counting noses, you can't get to five without Kavanaugh and the chief.

And what Kavanaugh and the Chief said four times in three pages was that this was an outlier law, that forty-three states do it differently. Actually it was forty-four. And our audience, they're rolling their eyes because they've heard me say this six times now, six different episodes. But this is what I told the judges below when they asked, I said, actually read the opinion for the court, yes.

but read the other opinions too and you especially have to do that when there are concurring opinion. Now they purport to join Bruin, but they actually limit it. in some important way. And this isn't the o the first time that's ever happened. Justice Kennedy used to do that all the time. And who's his law clerk? Brett Kavanaugh, who was in the same tradition. And a very famous case called Youngstown, the key opinion is actually not

Hugo Black's opinion for the court, it's the concurring opinion of Robert Jackson, for who you know whose most famous law clerk is William Rehnquist, whose most famous law clerk is John Roberts. Pay attention to these limiting concurrences. And that's what I told all the judges who asked. And the Fifth Circuit, I feel for them a little bit more here, because from a certain perspective, they're following the opinion of the court as its own author understood it.

Clarence Thomas,'cause he's with them on this. But while they really weren't paying attention to the dissenting justices, you you gotta pay attention to them at least, even if they're in the dissent, and the concurring justices, especially when the dissenters plus the concurrences, add up to five or more.

Oh, you have to pay attention to that if you're a lower federal court. And now you're seeing why it's a difficult job, because you've got to not just read, but count. And sometimes reading and counting are in slight tension.

I think that in some ways the Rahimi case doesn't really follow that entirely because really the Rahimi case is helping judges interpret the opinion of the court from Bruin. So in other words, it's helping interpret we don't really mean you have to find a regulation that says us exact what we really mean is you have to find a an underlying theme in regulation. For example, we always

So maybe we didn't say it's okay to disarm domestic abusers, but the court can determine whether a particular class of offenders are a class of dangerous persons or not. That's not the concurrence. Okay, that's not counting states. That's okay, we're gonna give you some tools so that you can actually implement the opinion of the court. I agree with what you said. So Andy, I told these judges when I went around last year two things.

I said, if you read the opinion, there's qualifying language there, don't disregard it, okay? They're not requiring an identical twin. And I said And if they were recording an identical twin, I don't think actually you would have gotten to five. Count count to five. So read these two things. Read the concurrence, which is about accounting methodology, but actually pay attention

To the dynamics of the the justices here, here's what I can say. I went around saying if my life depended on my getting it right by which I mean being affirmed by the Supreme Court. I would read that qualifying language very carefully and not insist on identical twins. Okay, because that language is in that opinion. Okay. Claris Thomas maybe didn't even love it, okay, which is why he descends in Raheem. That was language.

perhaps forced upon him by other justices as conditions of their willingness to sign on to that. Don't ignore that language. And don't ignore the concurrence. That's what I ran around telling people. If my life depended on it, I would actually not insist on an identical twin and pay attention to whether historically, whether that this was an outlier practice. What did the fifth circu so how did the Fifth Circuit behave in this case? I have my theory. Okay. So here's my theory.

They're smart people. But they are trying to do it because their life doesn't depend on it. Okay, getting it right. The worst thing that happens to them, they get it wrong, is they get reverse. from their point of view. Oh, I'm trying to make it worse right now. I'm saying you're not gonna get reversed, you're gonna be criticized on America's constitution and people listen and we're not going to respect you as much as we did the day before.

And this is your future law clerks and all the rest. So don't do this again. Okay. Now so what were they trying to do? I'll tell you, my here's my theory. It's only a theory. Is the data consistent with the hypothesis? So here's a hypothesis. You're very smart. Okay, you are. But you weren't trying to avoid getting reversed quite. You weren't trying to be the most faithful to the Supreme Court as possible.

You were trying to do one of two things. One, you were trying to get the Constitution right by your own life. Now why do I think that's true? Because Jim Host said that's what he's trying to do at a federal society event. I was about precedent and he said with the Supreme Court case that governs on all fours have to follow up, but if not, I'm supposed to follow constitution as I understand it. That's originalism. I've taken an oath.

And I said and I still remember this. We were in the Mayflower Hotel right by the elevators and I said, Jim, you're my friend. That is not your job because your job is not to read the Constitution, that's my job, because I actually read the whole Constitution and write books about it. You read the Constitution, there's only two words that say anything to you. The words are inferior and supreme, and everything else is irrelevant.

You're supposed to follow the Supreme Court and not just when there's a case on all fours, but just in general. You're supposed to follow them and if you disagree, right, a second part of the opinion saying here's where I think they're wrong. But that's what you're supposed to do. You're supposed to not get reversed. That's what I think your job description is. But in fact, I'm not sure that Jim Ho agrees with.

Okay? And on that I think he's just wrong as a matter of originalism, because it says inferior and supreme, and I wrote a whole chapter about this in America's Unwritten Constitution. And I think he's wrong as a matter of precedent because

Supreme Court precedent tells lower court judges this is what you're supposed to do. So I have two theories. One is they're actually trying to get the constitution right by their own lights and they actually agree with Justice Thomas on what the Constitution really means. But I'm saying that's not your job. Here's a second theory. Andy, believe it or not, people have ambitions. Okay? Federal 51 talks about ambition, checking ambition. Poor men want to be rich.

Rich man want to be king, okay? You're a district judge, you want to be a circuit judge. You're a circuit judge, what do you want to be? You want to be a judge? Okay? And if you're a Republican appointee, you're gonna have to be nominated by Donald Trump. And you're gonna pander to the base and you're playing with house money because at worst, you're just gonna get reversed.

Even if you are reversed, you're gonna be now elevated within conservative circles, and now you're gonna be on the short list. And actually, Jim, if that's what you're trying to do, you should love what I'm doing on this podcast because I am elevating you. But here's why this is consistent with the data, Andy. What the issues?

in these two cases. Well you could look at it very abstract in these case Article three, standing, and the historical test or something like that. Or you could say, no, it's about abortion and guns. That's what it's about, and that's red meat for the base, and that's gonna help get you on the shore. Yeah, I think actually it's there's a perverse incentive here, which is that if he were affirmed, let's say he took a p a conservative position.

That Trump might like or something like that. But he's affirmed by the Supreme Court. Okay, so then if he somehow got elevated to the Supreme Court, that wouldn't actually make any difference. He's just voting the same way that the Supreme Court has already voted. So that doesn't really do anything for you if if you are an advocate or a zealous.

On the other hand, if he's reversed by the Supreme Court and his opinion, let's say Judge Ho, for example, is an opinion that Donald Trump would really like then actually he's drawing attention to the fact if you appoint me to the Supreme Court, you're gonna have a better court. Not just you're gonna have a court that is more in line with what you want than what you currently have.

And so that it's affirmatively good for him to be reversed under this and that's a perverse incentive that I don't think is appropriate in a way because if you're by not doing your job you're helping yourself.

Let me say one other thing'cause I I want to say this for the fifth time because this is true. This is not at all personal. Nor is it political, okay? Because twenty-five years ago my brother Vic and I did the same thing, Andy, that you and I are now doing on this podcast, and we didn't do it about a fifth circuit.

too conservative and getting smacked down by the Supreme Court. We did it about a ninth circuit judge who was way too liberal and getting smacked down by the Supreme Court. 9090908181, often without even oral argument. just per curium summarily and his name is Stephen Reinhardt. He's no longer alive, but Vic and I wrote pieces together about not how he's being reversed. Anyone can get reversed.

but how he's being reversed nine oh and emphatically, just that what we've talked about here, the numbers and the intensity,'cause there wasn't even a single liberal on the court who was agreeing with this'cause he wasn't trying to follow what the Supreme Court was doing. He was just trying to follow his own inner light, his vision, and Vic and I basically said, that's not your job description.

He was sometimes described as the chief justice of the Warren Court in exile. That's what his law clerks called. Okay. And I said to my students and in print You weren't nominated by the president, nor were you confirmed by the Senate to be Chief Justice of the Warren Court Achal. There is no such position. You're a ninth circuit judge. You're on a court that's inferior to the Supreme Court. The words inferior appear twice.

It's inferior to not just inferior than in Article one, Section Eight, Article Three, M supreme and you're not doing your job. And we called you out. And it wasn't personal again, nor was it political. We're liberals, but we're saying your job is to follow the Supreme Court. And Andy, this Criticism, I'm sure, was not entirely great for my career because among his very famous law clerks, and he has many he had many famous law clerks, is my boss.

Heather Gherkin clerked for Stephen Reinhardt. And I will go around every year in class telling students, don't do this, don't hold this guy in high regard. He's not a good judge because he's not doing his job. Oh, and we had a portrait. of him in the Yale Law School. And I every year would rant and rave in front of my students saying, mister Gorbachev, tear down this wall, okay? Madam Dean, take down this portrait. Tear this down, okay? Because he shouldn't be a rare model. This because judges

Because they have life tenure, because you can't take away their salary, you can't diminish their salary, you can't take away their title. It is about honor. And I'm saying we should not be honoring this person. We say we call him your honor, uh, with all due respect. We should hold him up because we are telling our students, this is what a good judge looked like. And no, I didn't think that. And by the way, the reason that he got pulled down has nothing to do with my

Okay. Um, but he later there were allegations very substantiated that he had behaved inappropriately with female law clerks and other women with whom he came professionally in contact with. And so very quietly the portrait was taken down. But I think actually the Me Too episode

were of a peace with my critique, because these are very powerful positions, these judicial positions, they can go to your head and you can feel that you're a law unto yourself. You don't answer Supreme Court, you don't answer to the Constitution, you don't answer to the legal pro professoriate, God forbid, you just answer to your own inner light, and that's a bad way of thinking.

And Andy, this is one of the reasons for eighteen years,'cause we think being on the courts too long actually can create create that kind of attitude.

Well, also I think it's instructive I think to talk about this because what's the idea behind life tenure? That it it's a sort of judicial independence. But I think you you've pointed out that yes, you're independent. You're independent from Congress. Yes. You're independent from the president. You're independent in a sense from the people who can't vote you out of of office. Right. But you're not independent of the rest of the judiciary in the same way.

or of the Academy or of criticism or the judgment of history. And since I mentioned my dear friend Heather Gherkin, who has helped me in a gazillion ways. So I'm extremely grateful to Heather. But I think the person for whom she first clerked is not my beau idyl of a jurist. the late Stephen Reinhardt on the Ninth Circuit, but the next person for whom she clerked, is in fact my image of what a not a good, but a great

jurist is, and that was David Souter, is David Souter. And our audiences heard us talk about how he stepped down from the court'cause he wasn't stuffed with himself, and the Romans would have admired his kind of Washingtonian term limits like virtue. And he's still writing circuit and helping our country in all sorts of ways for free. He's not getting extra pay for this. And just a suitor, if you're out there.

I salute you. And you know I actually have different views about the abortion right than you do. You know that I actually don't love the KC decision. And you as much as anyone are responsible for that. But I can have the highest regard for you, and I do, without agreeing with every single thing you ever did. But you have exactly, I would say, the perfect judicial temperament and I salute you for that. And our audience is gonna hear

Stephen Breyer come on soon and I think Stephen Breyer has a certain humility about him that I really admire. He knows that I don't agree with his abortion jurisprudence at all, but he stepped down also. We talked about judicial independence, Andy, and I think you brilliantly identified different kinds of Yes, you're independent from the president and from Congress and you have financial independence, but in other ways you are dependent.

On the Constitution, and you're accountable to history. So we talked about judicial independence, but I also want to introduce the idea of judicial humility.

Okay, let's just take a break for a moment before we proceed just to uh help out our listeners who are seeking to gain their continuing education credit from listening to this podcast and as courtesy of the New Jersey state Bar Association, those members of our audience that practice or license That's lawyers and judges in New York, New Jersey, and Pennsylvania can obtain this CLE credit very easily by going to podcast.njsba.

which stands for New Jersey State Bar Association dot com. Fill out the format of the code this and now we're on numeric codes again this week the code is three four two eight four.

To repeat, three, four, two, eight, four. So it's very easy to get that credit. And if you're in other states, you can also take advantage of this in virtually every other state through reciprocity. We're actually in the process of preparing something which will be on the New Jersey State Bar Association website as well as our own website which will have instructions on how to get the reciprocity in other states.

So you don't necessarily have to go through the whole everyone doesn't have to reinvent the wheel and how to figuring out how to do that. But that's a big job and it's gonna still take a little while longer to generate that. So we hope you do that and thank you very much to the New Jersey State Bar Association again.

Okay. So uh again, just to return here, talking about independence. And yes, as I was saying and and you were agreeing there's a certain independence of Congress, but on the other hand j the j judges are independent of Congress. But the judiciary as a whole is not entirely independent of Congress. And then for example, the number of justices on the Supreme Court is determined by Congress and the President.

Through presentment, just as an example. So there's a certain relationship there, which I think does a bears scrutiny. And we're going to talk about that more when we talk about uh what powers, if any, Congress has to take the same thing. jurisdiction or or power from one set of judges and give it to a different set of judges.

jurisdiction stripping that's connected to the Schumer Bill. So we're going to talk about that. It's one thing to try to take something away from the judiciary as a whole. Maybe you can't do that, but Congress may have some power to structure things within the judiciary. Um how many justices there gonna be, what cases they're gonna hear, and so on. So stay tuned, audience, we'll talk about.

Especially in connection with the Schumer Bill and when our friend Ruth Marcus comes on the podcast, which is very soon. So she's coming on soon, and so is Stephen Breyer, and we have other fun guests that we'll announce soon. Okay. Getting back to the Fifth Circuit now, just to finish up, there's a couple more cases we want to talk about, but if we look at the scoreboard overall for the year, the Fifth Circuit was reversed by the Supreme Court eight times.

in the term. That's more than any other circle. And it's not the biggest circuit. California is the biggest circuit by population. Which is relevant to how many cases for the audience th these were the little mental shortcuts I made. I basically said population is roughly correlated with the number of cases that are going to be litigated.

And those are roughly correlated with the number of appeals that are gonna come up. And if you're getting reversed more than the ninth and you don't have a bigger population than the ninth, it's because you're out there in some And then you say, Oh, and by a conservative Supreme Court which is true.

And of course though I think it it can work the other way. Once you have a reputation for being out there, then you might wind up um being a magnet attracting cases that are more likely to get to the Supreme Court just by virtue of the fact that people are thinking that if they go to most circuits, they're just gonna get blown away.

And the only place they have a chance is the Fifth Circuit. So you get these c and if really if you're gonna be blown away in most circuits and not in the Fifth Circuit, that means you're probably out there. We're gonna talk about forum shopping and nationwide injunctions and other things. Lots of stuff to talk about going forward.

Okay, but anyways, but there are at least two other cases that we wanted to uh draw your attention to quickly before we get onto some of these issues. One of them was the case r involving the Consumer Financial Protection Bureau. And the claim here was that it's improperly funded because it it Congress allowed it to basically draw money without having to go hat in hand to Congress every year for its budget. It had certain self funding options. that Congress itself had authorized.

And I think they just told you the answer to the challenge. Congress has authorized this funding mechanism. it Congress could change that at any nanosecond, which is what Brett Kavanaugh emphasized, I think both at oral argument and on the page, and that that suffices to immunize this from constitutional Uh attack, the opinion of the court was written by Clarence Thomas, saying, look, the founders did stuff like this in specific.

Details, it's possible this goes beyond what the founders did. There's no let me use a phrase here, identical twins. to the uh CFPB funding statute, but there are analogies, there are cousins and Uh that's an historical test and the structural point that j Justice Kavanaugh makes and he's just right, he's focused on just the right issue is if Congress doesn't like this, it can change it tomorrow. And so that's why the Fifth Circuit got smacked down, but good.

seven two. Now that wasn't nine oh, Justice Alito and Justice dissented, but it was seven to in an originalist opinion by the original originalist on the court, Clarence Thomas. And I'm with him. And that was an opinion. This is a Hall of Shame episode by a Yale Law School graduate.

Judge Corey Wilson, who also wrote the majority opinion in Rahimi, you've been smacked down. Oh, but maybe you're gonna wear that as a badge of honor, because that maybe you think that puts you on the short list, and you might be right about that. That's not your job. Your job is not to be running to be a justice. And so we're gonna call you out on this podcast, because this is actually about the Constitution, not about your ambitions.

And another case was the one of the social media cases, Murphy versus Missouri. This was a procureum opinion, so we don't know who the author of the opinion was really, but you have the it was another panel of judges Clement, Elrod and Willet, and Judge Elrod appears on the Nephilistone case as well. And this is a case about how to think about social media and is it really the government just because social media talks to the government?

And does do other people who have a right to complain because social media is limiting them and they talk to the government and wow, that seems really out there to me and so Six justices says w we don't think you have standing. We don't think you have an entitlement to sue just because you're being restricted in some ways by social media that talks to the government. And my own view is that social media isn't the government and that's really inf important.

that we draw this line between what's private and what's governmental. Because what governments cannot do are things that not only private people Right. Entities can do, but they have an absolute right to do against the government. Government can't have a religion, but the Catholic Church gets to have a religion, and the Keel gets to have a religion, and the government can't discriminate against the government.

conservative thinkers. But the New York Times, if it wants to, or the Nation magazine or Jacobin or whatever, they're entitled to discriminate against conservative ideas. Because tha that's what it means for them to be a free press. And we need to be really clear on the distinction between um private action and governmental action. And I think actually the Fifth Circuit went way too far. There were some other cases that raised this

issue as well, but in the Murphy case, the Fifth Circuit was smacked down. And Andy, we talked offline about Justice Amy Coney Barrett and what she wrote on that case. Yeah, she had some strong language. Now this is has to do with standing, questions of standing. But it's connected to the merits, I think, in certain ways.

So she says that this theory, so the the Fifth Circuit theory, is startling broly broad, as it would grant all social media users the right to sue over someone else's censorship, at least so long as they claim an interest in that person's speech. This court has never accepted such a boundless theory of standard.

So don't you hear echoes of Kavanaugh here? He's utterly unprecedented. She says startling, boundless. So it's not just that it's i these aren't five, four cases. It's that the language from pretty Sane and sober justices in the middle saying, Wow, this is way the heck out.

Okay, so those are a bunch of cases. There was the Jarcasey case which had to do with jury trials and the Seventh Amendment and whether or not administrative law judges were sufficient in certain types of cases. You always have a right. to a jury trial under certain circumstances. And on that the Fifth Cir I think that was from the Fifth Circuit they got affirmed Bye.

None of the justices was really buying a second thing that they said, which is that this violates a thing called the non delegation doctrine. And I think they were way out there on that and they didn't get any takers on the Supreme

And our audience will remember that when we talked about the Jarcasey Jarkasy case when there was oral argument, I thought, Oh, you could make an argument either way and people are this is an interesting case and and so I didn't think that the Seventh Amendment theory was way the heck out there. I'm a believer very much in juries and civil juries.

But they had they the the Fifth Circuit struck down this government pure bureaucracy on two different theories. One that the Supreme Court agreed with that this intruded too much on on things that a jury should be deciding. And second, that basically the legislature had given over all legislative power

to the administrative agency and the Fifth Circuit thought that was true and the Supreme Court justices didn't say that's the thing called the non-delegation doctrine. And here's in just one sentence why you shouldn't be too concerned about that'cause Congress could sh could take it back if they thought they gave too much to the agency.

Any time tomorrow. It's just like the C F P B funding idea. They could take it back tomorrow. Now, sometimes if you've given away so much power to especially the president himself, In the nineteen thirties, Congress passed a statute. I'm exaggerating a bit, but suppose the statute just said

Uh President Roosevelt, you can do anything you want to get us out of this depression. You're the Fuhrer, you're the dictator, you're the lawmaker. Yeah, well in theory, Congress could repeal that the following day, but in practice FDR who maybe quite likes all this power is gonna veto that bill and you're gonna and'cause it's giving him total power and you've made it very difficult.

Congress to take it back because now you're going to need to overcome the veto. And this is connected to things that we talked about before. The Senate can't give up its own power to refuse to confirm adjustment. When we were talking about the Rokina plan and the hundred and twenty day idea and all the rest. Congress can't give up its power, so the key is can it easily take it back?

maybe can't when it's giving up all legislative power to a present person who's gonna veto any attempted take back. But here it was giving a little bit of power to an agency that's actually somewhat independent of the present. These concerns didn't really apply. The guy who comes up with this theory that I just articulated is Professor Vikamar.

in a piece in the Vanderbilt Law Review, Navy's Law Journal, called Indirect Effects of Direct Election. And he has a very nice little analysis of what the world sometimes calls the delegation doctrine and sometimes calls the nondelegation doctrine. Okay. And I think some of this is related to our next topic, which is the court has a certain independence, as we were talking about.

So what can we do when these judges on lower courts are s are straying from their proper function? Now you we talked about criticism, which we've been engaging in. Right. Is there anything else? Can Congress or maybe can the Supreme Court itself do things to try to change this relationship in some way? Yes. I think Congress has very great power to structure the judiciary in all sorts of ways that includes

Specifying how many justices they're gonna be and how to structure the court itself. We've been talking about a front bench and a senior bench. And I think Congress has power for to have ethics rules for the justices. Now who's gonna enforce those ethics rules? Maybe. senior justices. That's at least a possibility. It would give them something really important to do. And it's awkward to have someone outside the Supreme Court

telling the Supreme Court quite what to do'cause they are the Supreme Court. And if you've created someone over them, then are they really the Supreme Court? But if it's one part of the Supreme Court regulating another part of the Supreme Court, Maybe that might be okay. And this isn't dividing things between original and the pellet jurisdiction the way the Sheldon White House plan did. It's doing something else. Oh, but if you can do that.

What about lower court judges? That's easier, handy it seems to me. So Congress, for example, says, District judges, you're reviewable as of right by Court of Appeals judges. Courts of Appeals, you sit in three judge panels. Oh, but you can also have on banks. Court of Appeals judges, you're reviewable and reversible by a certiary process.

If you're doing all of that, I think you could go further still, because you see, we've been talking about how reversal maybe isn't strong enough centralized control. Especially if the justices aren't going out of their way to publicly name you and shame you in their opinions, quite and people might not note. And you also haven't addressed the fact that the Supreme Court only takes so many cases in a particular year.

Oh, so here's what Reinhart once said, they can't catch me every time. They can't cast them all. That's like such a cynical approach. No, that's not how a faithful lieutenant thinks, Judge Reinhardt. In the executive branch. Executive hierarchy is manifested with all sorts of levers of control. Presidents can actually say, okay, I'm taking you off this

job detail and reassigning certain of your duties to someone else. Presidents have that kind of authority. Um you could imagine the uh restructuring by statute. judiciary to give more authority to the Supreme Court. Okay, not only do we reverse you, but you're in detention. You don't hear cases of a certain sort for the next few years o on that. And This is a lower court.

Each other but to the lower courts I could that's easy, I think. So here's what uh the higher court can't do it can't take away your salary.

It can't say you're not a judge. You're entitled to your title. You're entitled to your undim not just your salary, but your undiminishable salary. But if the Supreme Court could reverse you every time and and Congress could give the Supreme Court it that jurisdiction to reverse you every time, it seems to me that Congress could take a step further and say, we're gonna allow um higher ups in this judicial hierarchy to exercise

other powers of and we could call them extraordinary writs, we could call them mandamus, we could call them quo warrior. We we could give them all sorts of fancy names. But I think here's a comparative constitutional law way of putting the point. Because our audience members have asked us about comparative constitutional law. In many other societies, there's one and only one court that hears constitutional issues.

It's called the Constitutional Court. It hears things immediately when the law is passed, and it's the only court that rules on the Constitution. And um but that's not how US judicial review works. US judicial review can happen in any court at any time, even involving private litigants to farmers.

haggling over the price of a cow today can litigate the question of whether paper money is legal or not. Now it is that one's farmer's gonna lose, but you can litigate that in small claims court, in state court. any time and hundreds of years after Greenbacksburst a appeared in America in the Lincoln administration.

Two farmers haggling over the price of a cow can litigate a constitution uh issue even though Congress isn't formally a party and the administration isn't formally a party and small claims. If you're gonna have that kind of decentralized judicial review in which district courts can be given lots of power. Courts of appeals, even three judge panels can be given lots of power. We could think about Congress could think about restructuring The cord.

system to provide a little bit more hierarchical control of people at the apex of the pyramid. There are all sorts of ways in which Congress could do that. Here's what would go too far. Taking away your salary, taking away your title. But if they can review and reverse you every time, it seems to me they could do other things like suspend you or say you shouldn't hear certain cases because you have a bad track record.

Judge Cannon, are you listening? Cause right now you're maybe getting away with some very adventurous rulings because the standard of review in the eleventh circuit is one that favors a district judge. They're going to be very hesitant to yank the case from you, given the current rules about the hierarchy between a federal district judge and Federal Court of Appeals. But that could be changed by statute tomorrow and maybe should. So in future episodes, we'll talk about national injunctions.

and ethics rules not just for the Supreme Court, but for lower courts, and how maybe the Supreme Court or the Chief Justice or or some other entity should be given more power to deal with rogue lower court checks. Yeah, you said something almost in passing at the beginning of that, which I want to come back to for a second because I think it's important, which is this idea that you could have the emeritus judges on the Supreme Court administering perhaps an ethics code.

that implicates the other justices or and themselves on the court. Because even though I think in the Ammar plan we're talking about having emeritus justices versus regularized justices w and legacy justices and replacement justices. Just see our previous episode for that. There's a sense on the part of many I people that object to the plan, I think, or at at first gloss.

That you're demoting the justice. You're demoting him or her from regularized justice to emeritus justice. And y you can't do that. That's part of their office. You can't demote them. Like you said, you can't take their salary. But in fact, if you were to award the task of administering the ethics code to the emeritus justices, it would be very hard to look at that as a demotion in that case. It's just a different responsibility.

And so that could actually solve a lot of problems because we would like to have a more enforceable ethics, more detailed eth ethics code. uh in the Supreme Court, but we have this problem that there's no court that's superior to the Supreme Court. But within the court you could do it, but then that's tricky. What are you gonna do? Have Justice Alito tell you Justice Kagan what to do? But if you have an emeritus justice that has a different

job but on the same court. I think that can solve both problems at once, making it clear that this is not demoting the justice, number one. And number two, having an enforceable ethics code that doesn't go afoul. of the hierarchy of the court. So I I think that you made that point in passing, but I think it's a we didn't really talk about it when we talked about our eighteen arguments for eighteen years, but oh boy, that's a good number nineteen.

One stone, many birds. We will come back to this issue. I'm not proposing eighteen years for some narrow partisan reason to repeat. if this plan, this eighteen year plan were not gonna go into operation until ten years from now, when we don't even know who's present, who's in the House, who controls the Senate, I'd still be in favor of it. And ethics are connected to a whole bunch of aspects.

One thing is also we think just being on the court too long on the front bench isn't good. Judicial humility was discussed and Andy, lots of stuff for future episodes. Ruth Marcus on the Schumer plan. We're gonna have Stephen Breyer come soon enough. And oh in case you haven't heard, there's a presidential election coming up and the constitution may be relevant to some of that stuff.

Especially Andy, ending where we began with this geographic idea, um which is the Electoral College idea, which is it's a big country and things look really different in Texas than they do in California. Okay. Audience, once again We w we were forced to issue an apology for not including your question this week, which we fully intended to do, but then we got carried away with some of these interesting arguments. I guess blame the judiciary in China.

But anyway, we do have them here. They're sitting right in front of me. I we picked some great questions that we do want to answer. So it is coming. So keep those coming. And uh otherwise until next week, Mikhil, thank you very much.