Manhattan Institute scholars Ilya Shapiro and Jim Copland, along with Professor Nicholas Quinn Rosenkranz, discuss prospects for the 2024–25 Supreme Court term, in a panel moderated by Judge Stephen Vaden of the Court of International Trade.
Audio Transcript
Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. This week’s special episode features a panel discussion held last week between Manhattan Institute scholars Ilya Shapiro and Jim Copland, together with Nicholas Quinn Rosenkranz, Professor of Law at Georgetown, and moderated by Judge Stephen Vaden of the Court of International Trade. The panel discussed prospects for the 2024–25 Supreme Court term, now underway.
Following a tumultuous year in which the Supreme Court addressed the Second Amendment, presidential immunity, social-media regulation, and Chevron deference, the justices are returning to the bench to hear more major cases, including those involving a Texas law requiring age verification to access certain websites; Tennessee restrictions on pediatric gender care; and Facebook’s alleged securities fraud for misusing personal data.
We hope you enjoy.
Reihan Salam: Good evening and welcome to this year's Supreme Court Preview. I'm Reihan Salam, president of the Manhattan Institute. And I'm especially pleased to welcome our friends from the Federalist Society of New York, co-sponsor of tonight's conversation. At the Manhattan Institute, we work to move American public life in the direction of personal responsibility, colorblind meritocracy, and the rule of law. The challenges we work on, from the scourge of antisemitism to public disorder to the excesses of the administrative state inevitably have a legal dimension.
In an age of deep political division, more and more of our policy debates are being settled in the federal courts, and this coming term will be no exception. That is why we're so fortunate to be home to Jim Copeland and Ilya Shapiro, two of the nation's most accomplished legal minds who are actively shaping federal jurisprudence through their scholarship, advocacy and filing of highly influential amicus briefs. They'll be joined in conversation by the esteemed Nicholas Quinn Rosenkranz, professor of law at Georgetown, and a leading authority on constitutional law and federal jurisdiction, and tonight's moderator, Judge Stephen Vaden of the International Court of Trade. Prior to his appointment, Judge Vaden served as general counsel of the US Department of Agriculture. During his tenure, the department won two cases before the Supreme Court. He has served on the board of a commodity credit Corporation and was a litigator at the law firms of Jones Day and Patton Boggs. Please join me in giving Judge Vaden a warm welcome.
Stephen Vaden: Well, first of all, thank you to the Manhattan Institute, as well as the Federalist Society for having us here this evening. It's a wonderful way to kick off a Supreme Court term and to look at the issues we'll be talking about at least until July. As you can probably tell by my accent, I'm not a native New Yorker, but work brought me here particularly the-
Ilya Shapiro: That's a far outer borough, I believe.
Stephen Vaden: Yes, yes. It's way down in Tennessee, that famous borough. But it's wonderful to be here and to be part of the New York scene, thanks to the president deciding that I should come up here and serve on the Court of International Trade. We're very fortunate to have three experts with us. They're going to talk in the order that you see them on the stage. They each have a set of cases that they want to tell you a little bit about. And once they finish with that, I may have some questions for them, but I hope while they're speaking, you will be coming up with questions because we're going to try and reserve approximately the last 15 minutes of the event for you to ask questions of them about anything on your mind about the upcoming Supreme Court term. So with no further ado, I want to turn it over to Jim, who's going to tell us about those cases that he found most interesting.
Jim Copland: Thank you, Judge. And thanks, everyone for coming and thanks Reihan and the Federalist Society. I direct legal policy at the Manhattan Institute, which is distinct from constitutional studies, and it means that the cases I'm going to be talking about are by and large not cases involving the federal constitution, but they're cases of significant import that the Supreme Court's going to be looking at this term. And in particular, I sort of want to characterize them as smokes and Facebook, although that's not exactly what the underlying causes of action are about.
So first is really it's a companion pair of cases. One is in parallel, although not identical, involving the Food and Drug Administration, the FDA versus Wages and White Lion Investments. And there's a parallel case that was just granted cert as well involving RJR, RJ Reynolds versus the FDA. And these are really about the administration, the FDA's efforts to essentially ban electronic cigarettes, vaping devices that have flavors, right? So we've all heard about this. Over the summer, I think they did finally approve for flavored electronic vaping devices for menthol. If you recall, they were sort of flirting with banning menthol cigarettes, which are very popular among the Black community. Decided not to do that. That that may not be politically prudent. But they said, "Oh, we'll let menthol vapes in."
So the underlying policy here is of course there's a tension, because the evidence and there's information from the FDA in this case that's out there that based on what we know now, it looks like these e-cigarettes are less dangerous than traditional tobacco cigarettes. And John Tierney, the Manhattan Institute's written about this in City Journal at some length. The flip side though is that the youth are really taking up vaping. I've got a kid in high school and another in middle school and the youth like vaping. And so the concern is, well, these flavored vaping devices may become popular among the kids. So that's the underlying policy dispute.
What's involved in the case here? And in the main case on the merits, it's really a question under the Administrative Procedure Act. So this is a challenge to administrative action and rulemaking and how the government went through this. And it's what's called arbitrary and capricious review. So those of us who know administrative law, this is simple, we know it. Those of you who don't, I mean, this is sort of what we call the State Farm world. Until recently we had the Chevron world, which was, "Do we have an ambiguous statute?" That's not really this. This is really the rulemaking process itself. The Administrative Procedure Act came in as sort of a constraint in the 1940s on administrative rulemaking, and they do a sort of hard look review under the State Farm doctrine. And it's arbitrary and capricious, so it sounds like a pretty high bar, but the courts review this process pretty aggressively. And what's going to be an issue in this case isn't really the merits of whether e-cigarettes should or shouldn't be banned. And it's not really whether the statute gives authority because there's pretty broad authority under the 2009 statute to add other tobacco-related devices here. It's really the process here.
So when this started, this regulatory process started back in 2016, and so they were going through various processes and they really just sort of changed with the administrative change, with the election of Joe Biden. And in the summer of 2021 when the deadline was imminent, they went through a different sort of calculus and they basically foisted upon these e-cigarette companies at the last minute, they en masse just basically denied them, using a new rubric. Basically saying that they needed to have provided evidence that the flavored cigarettes were demonstrably better at switching people off of traditional cigarettes than tobacco vaping devices would've been. So they denied all of these. It's a challenge to that sort of rulemaking process, and that's what it's going to sort of hinge on. It came out of the Fifth Circuit, originally lost in the panel. There was a dissent by Edith Jones, one of the great judges on the Fifth Circuit. They took it up on bank and the companies won, the FDA lost. And that's where the cert's been granted out of.
The parallel case involving RJ Reynolds v. FDA is really an attack on the Fifth Circuit as the venue where this is being held. And so the argument here is those of us who are market conservative leaning folks or skeptical of the administrative state folks like the Fifth Circuit, they're giving us a lot of rulings. And so people are aware of this, lawyers are aware of this, they want to get into the Fifth Circuit. And so what the FDA is claiming is, "Well, the venue's inappropriate, RJR's a North Carolina company, why aren't they in the Fourth Circuit instead of the Fifth Circuit?" And so that's the real challenge. And it's going to be interesting to see how they resolve this case, that sort of challenge to the venue question.
And it sort of leads to the next case, which is here out of New York in the Second Circuit, and that's Medical Marijuana v. Horn. Now, it doesn't really hinge on medical marijuana law per se. What you have here is basically a tort product liability suit. You've got someone who saw an ad and went and bought what's a CBD product, one of these marijuana lite products that doesn't have THC, and then flunked a drug test at work and lost a job as a trucker and sued. And the lawyers brought this suit under what's called civil RICO. Now Rico is of course the Racketeer Influenced and Corrupt Organizations Act, designed to sort of hit the mob, right? But there's a whole volume of civil RICO litigation and it includes looser venue rules and also it includes treble damages, which means plaintiffs lawyers are really going to like that.
So the objection here filed, and the business groups are all on the side of the defendant here, but the objections were, "This is basically a forum shopping opportunity. You're misusing civil RICO and putting ordinary product liability claims under civil RICO as a way to skirt tort reform laws and get all these cases in California and New York where you got a better chance to win." This is the sort of stuff we've traditionally looked at in our legal policy efforts in Manhattan Institute going back to the mid '80s and particularly since Wally Olson wrote The Litigation Explosion in '91. So that's really what's teed up here. It's going to hinge on the statutory interpretation of the RICO Act.
There is a constitutional overlay here based on federalism principles, because tort law is the traditional province of the states, and the court's not going to look too fondly on overriding traditional state law claims willy-nilly without clear congressional authorization. There's a circuit split here. The Second Circuit here in New York, the Ninth Circuit in California have had the loose rule, which allows civil RICO basically to bring all these cases, and then you've got other circuits on the other side. So that's going to be interesting to follow.
The final one is a little different, but it's something that you've all probably heard about. That's the Facebook, the Amalgamated Bank. And this is ultimately involving the Cambridge Analytica data that was used originally for the Ted Cruz campaign and then for Donald Trump. And the question was some of this data was misused by Cambridge Analytica in those elections. But what it is really is it's a securities fraud class-action lawsuit under 10b5, which was not authorized by statute or even by regulation. It's an implied right of action that was inferred by federal courts based on securities fraud. And here the claim is simply that the forward-looking risk statements in Facebook's 2016 10-K statement did not disclose the already publicized data misuse by Ted Cruz campaign and Cambridge Analytica, and therefore were inadequate disclosures for the forward-looking risk. And this is notwithstanding that there is a safe harbor of sorts in the Private Securities Litigation Reform Act of 1995, that's supposed to be a prophylactic here.
So my instinct is here on this one, this is sort of the epitome of the securities class-action, the stock price goes down, you file a suit, you get a class action, you have a high settlement value. Because when you're talking about Facebook, it's a $100 billion stock price movement. My guess is the Supreme Court granted cert on this, they want to reverse the Second Circuit and say that, "No, these risk statements don't include failure to disclose an already publicized misuse of the data in your forward-looking risk assessment for the company and the 10-K." So that's my guess on that one. Anyway, those are the cases I'm following.
Stephen Vaden: Well, Jim started us off in the vice unit and then took us to Wall Street. And you can debate amongst yourselves how long a walk that is. But Nick is going to take us into something perhaps less morally questionable in terms of his cases.
Ilya Shapiro: I don't know. It's another kind of vice, isn't it, Nick?
Nicholas Quinn Rosenkranz: There are some other morally questionable activities in my cases. So I'm delighted to be here. Thank you for having me. I've done this panel before and always enjoyed it and I'm happy to be here and speak with the Manhattan Institute. First case I've been asked to talk about is Hungary v. Simons. So this is a case about Hungary expropriated the possessions of Jews during World War II. So the heirs of some of those folks are suing Hungary and the state railroad of Hungary for some money for that in federal court. So okay, the general rule is that there's sovereign immunity. You can't sue a foreign sovereign in a US court. That's the general rule.
But there's an exception, so the expropriation exception. And what it says is, "A foreign state shall not be immune from the jurisdiction of courts of the United States or the states in any case in which rights and property taken in violation of international law are in issue," that seems clear here, "and that property or any property exchanged for such property has a specified connection to commercial activity in the United States." And the trick here is this language, "Property exchanged for such property." So if Hungary had expropriated a necklace and the necklace were in a vault here in New York, then this exception would apply and these folks could sue to get their necklace. The "exchanged for" language suggests kind of case two, if Hungary had exchanged the necklace for a bracelet and the bracelet were in a vault in New York, likewise they could sue to get the bracelet. But what Hungary in fact did is sold the necklace and all of the stuff and put the cash into the treasury, into the Hungarian Treasury. And theory of the plaintiffs is-
Ilya Shapiro: Kind of a monetary goulash, if you will.
Nicholas Quinn Rosenkranz: So the plaintiff's theory is the commingling theory. So once the money goes into the Hungarian Treasury, it's commingled with all their other money, and so they can go after the money that's in the Hungarian Treasury or assets that Hungary might have here in the United States. So on the one hand, it's sort of just a statutory interpretation question about "exchanged for." So it's kind of interesting. I started with the necklace, the necklace and the bracelet. The government actually, the US government filing concedes the necklace, bracelet point, and they concede too that even a string of exchanges could be okay.
There's a case called Sabatino in which the expropriated property was sold and the money was in escrow in a discrete account in New York. And the court held, this is pre the statute, but the statute's thought to incorporate this, that was held that it was okay, you could go after that money which was separately held in escrow. And it's conceptually a little more like the bracelet, right? It's like a distinct bit of property that was exchanged for the expropriated property. This is a big step further, this commingling theory where every dollar in the Hungarian Treasury is kind of tainted forever by the fact that this money went into the treasury. So I think the court is not going to go for this and is going to say that Hungary is immune from this suit for two main reasons. One is that's a real stretch of the language, "exchanged for." So I think they're going to phrase their opinion, frame their opinion in terms of the textual objection of the scope of "exchanged for."
To add a kind of realist note here, the US government has filed and said they're supporting Hungary. And whether the court says so or not, I think they're very, very reluctant to decide a case like this against the views of the US government. The US government, first of all, hints or suggests that it's pursuing all kinds of other ways to get justice for these folks, and that granting jurisdiction is just going to get in the way of those other ways. And there's always in the background of a case like this, the idea that who knows? The State Department might be negotiating who knows what with Hungary right now or trying to get a military base, or whatever it is, and the court just doesn't want to mess with that. So if the US government says, "You're going to mess up our relationships with Hungary if you grant jurisdiction here," whether the court says so or not, I would say they take that very, very seriously. I'd be really surprised if they allowed this to go forward. I think they granted to reverse here.
Second case I'm supposed to talk about is Free Speech Coalition v. Paxton. So this is an interesting free speech case, a statute passed in Texas trying to regulate pornography. And what the statute provides is that if you run a website of which more than a third of the material is sexual material harmful to minors, if more than a third of the material on your website fits in that category, then you have to use reasonable age verification methods, meaning somebody has to type in their government ID. So have to type in your driver's license to show that you're not a minor to get to the website. So this is to protect children from these materials in theory. So this case is interesting.
There's a category of speech that's not protected under current Supreme Court doctrine called obscenity. There's also this doctrine, this idea that the category of obscenity can be or might be or could be defined to be broader vis-a-vis minors. So there's some things that are obscene vis-a-vis minors, but not vis-a-vis adults. That's a little bit of a kind of confusing doctrine and a little bit kind conceptually confused, I would say. But at any rate, so there is this doctrine. So okay, so there's some speech that the government can restrict vis-a-vis minors, but not vis-a-vis adults, okay.
The problem is that this statute burdens the communication of adults. So if an adult is trying to log on, they've got to type in their driver's license or whatever, and the suggestion is lots of adults might be chilled from going to such sites knowing that they had to identify themselves. And even though the websites aren't allowed to retain the information, it seems like they could maybe share the information or the information could get hacked or the government might be able to somehow get its hands on the information. And in short, people might be chilled from going to such a website because of this requirement. Now, the lower court said, "We're going to view this..." So one question is the level of scrutiny that this statute gets. So one idea is should it get rational basis scrutiny, which statutes almost always survive? Or should it get strict scrutiny, which statutes almost always fail?
There's a pretty compelling case that the right answer here is strict scrutiny, and once you're in the world of strict scrutiny, you're supposed to measure whether the statute is narrowly tailored to effectuate its goal. This statute is going to fail that test. So first of all, this business of the one third that's sexually explicit, if you were going to the website even to get to the two thirds, it's still burdening your speech. So it seems kind of broader than it maybe needs to be. And there's also the suggestion that maybe there were less intrusive ways to do this. So maybe people could install software on their computers that would filter or whatever. There might be better or narrower ways to do this. This I think is a closer and more interesting case, but I think the Texas statute is going to fall. And that's my prediction for this one. And I'll stop there.
Jim Copland: I just want to say that porn definitely fits under my vice...
Nicholas Quinn Rosenkranz: Yeah, yeah.
Ilya Shapiro: I mean, I don't find the barrier particularly burdensome, but I mean I guess it's to each his own, right?
Stephen Vaden: I think you can ask a certain North Carolina political candidate about the trust one.
Jim Copland: I'm wishing we chilled certain speech for certain of our political candidates.
Stephen Vaden: Yeah, websites data retention policies, yes. Professor, I have a question. It's a Texas statute that's under review in Free Speech Coalition. Am I not correct in remembering that certain other states follow the Texas model and passed similar laws as well?
Nicholas Quinn Rosenkranz: Yeah, there are other states with similar laws, and indeed there was a federal statute that was struck down years ago. Now, these things do change and evolve with technology. So there's often speculation about is there a better or narrower technological way to solve these problems? And there are filters now that there weren't then, and so the doctrine does kind of move with the technology in an interesting way. But yes, you're right, there are other statutes as well.
Stephen Vaden: Even though it's a Texas case here, there could be more than one law that falls if your prediction is correct?
Nicholas Quinn Rosenkranz: Yes, I mean it's probably statute specific, and I haven't looked at the language of those other statutes, but certainly it'll put pressure on those other laws, yeah.
Stephen Vaden: Thank you very much. Ilya?
Ilya Shapiro: Yeah, well look, as you can tell, we're trying to make this very interesting for y'all. We've had the drugs, we've had the sex. I'm going to talk about guns. But truth be told, so far this term, even though there's 40 cases on the docket now, it's not quite the blockbuster term. We've had several consecutive terms of the century, if you will, abortion and guns and affirmative action and all of these different things. I've been a court watcher for, what, 17, 18 years now, and it seems like most of those years there's been just something incredible at the end of June. So far, that's not this term. Although, who knows what comes out of the election, what comes up later. I'm just giving you a prediction that when you're listening to me or other legal pundits in June, July, talk about the term, probably only a couple of the cases that we're talking to you about are going to make that kind of above the fold summary. So stay tuned.
Nevertheless, I know a lot of you, most of you perhaps are lawyers, so you care about some of the less sexy, if you will, cases. So it's all important. But I do think this term, like last term actually, is going to have kind of a bipolar sense to it in that last term, about half the cases were unanimous and then there was slew concentrated in the last two weeks that were 6-3 on ideological lines. I have a sense we're going to get something like that, with most of the latter to be determined which cases those exactly are.
Now I'll start with the guns, including a case that was just argued this morning, Vanderstok v. Garland. So you recall last term, the court set aside a regulation reclassifying bump stocks as machine guns. So that was set aside, somewhat similar case, different statutory language, the Gun Control Act that regulates all sorts of firearms. Well, that definition of firearm includes the frame or receiver of any such weapon. The technical metal parts that are the operative mode that make a firearm a firearm rather than some other kind of implement. Now this definition has become outdated due to developments of firearm technology, 3D printing, other things that allow people to manufacture what become known as ghost guns, that don't have serial numbers and things like this.
And the concern is if you just get these kits, you manufacture them, you have to drill some holes. So it's not just like putting together IKEA furniture, as came up during oral argument this morning, you have to drill some holes and do some things. But then someone who is barred from buying a gun in the normal course can do this, and that's why the ATF is trying to regulate it. Most of the media reports from this morning's argument are saying that the government's going to win, that it's different than the bump stock case because they have regulatory authority over firearms, these kits are close enough.
There was some discussion about the ingredients of a western omelet, and if you put on the counter the ham and the green pepper and the eggs and the cheese, can you just say that's a western omelet? Well, no, because they have other uses. Well, what about a HelloFresh kit that comes with specially measured in a one box and you get the instructions? Well, maybe that's closer to it. Look, there's some wiggle room here. And Justice Kavanaugh in particular was uneasy and kind of pointing out problems with ruling for either side. So we'll see, if any of you are 3D printing untraceable firearms or something, you're going to be paying close attention to this. But I just want to say this is not a second amendment case. It's a technical look at the regulation of firearms, the so-called ghost gun kits.
The other gun case that I have is... Jim could have taken it. In fact, Jim owns more firearms than I do, and he's into product liability. In the other cases, it relates to product liability for gun manufacturing. It's called Estados Unidos Mexicanos v. Smith & Wesson. And it's not just Smith & Wesson, it's all American gun manufacturers. The government of Mexico sued all American gun manufacturers because, there's kind of a convoluted thing, the Mexican cartels eventually get these American guns and they use them in crimes and therefore the gun manufacturers are liable. I heard someone just say it's crazy. Yeah, if any of you are product liability or other tort lawyers, there has to be proximate cause. There's a general rule that you can't just sue knife manufacturers because of knifings, increased knife crime in town and stuff like this.
This comes out of the First Circuit, where the court there reversed the District Court that had dismissed the suit. And I'm pretty sure the Supreme Court took this to reverse the First Circuit in term. But it's a high profile case, obviously, the change of government in Mexico, also implicates US-Mexican relations, which have been complicated by immigration and other things. But on a purely product liability basis, I have a hard time seeing that either the theory of proximate cause or, for that matter, aiding and abetting liability. So are you really saying the gun manufacturers are kind of in cahoots with the cartels to commit all of this crime? Because that's the theory of the matter. So probably Mexico is going to lose. It's going to get all of this color to it, but at base it's kind of a 1L tort problem, if you will.
And the other case that I'm talking about is probably the highest profile case on the docket. The argument has not been set yet in United States v. Skrmetti. This involves Judge Vaden's home state of Tennessee, which I don't know why Tennessee got... So in one below, so it's the US government appealing here, but 23 states have these laws like Tennessee's that are at issue that ban medical interventions for gender care for minors. And specifically, Tennessee Senate Bill 1 prohibits medical treatments intended to allow a minor to identify with or live as a purported identity inconsistent with the minor's sex, or to treat purported discomfort or distress from a discordance between the minor's sex and asserted identity. Again, specific to hormones, surgical interventions, medical things, not psychiatric treatment, but the medical interventions, whether that violates the Equal Protection Clause.
So it's not a question of whether you have a fundamental right to these treatment under the Due Process Clause or otherwise, but whether this is discrimination based on sex, gender, gender identity, which would have to be a new category that they would establish. Underlying this a little bit, and certainly central to the US government's argument, is the Bostock case from a few years ago where the court read into Title VII anti-discrimination in employment law protections for gender identity and sexual orientation. That's a Title VII case, dealt specifically with the key phrase, "Adverse employment action on the basis of sex," textual analysis, you can agree or disagree. I tend to agree more with Kavanaugh in dissent than Gorsuch in majority. But regardless, this is different. This is Equal Protection Clause, there's no operative language, textual language to look at.
Tennessee just filed its brief today. We'll be filing our brief actually next week. My colleague, Leor Sapir does kind of meta-studies of studies, and it turns out in this area, Europe is rapidly becoming much more conservative and turning away from gender care for minors. So he's replying to some of the government and their friends on the analysis of the science. There's a question of why the court took it, right? There's not yet a circuit split. There's litigation about other states' laws. But the US government asked it to take it and it did. Presumably, it wants to nip some of these issues in the bud and it sees how Bostock is being misused in a host of contexts. I think Tennessee will win, but this is going to be the highest profile issue.
There's also kind of an interesting thing with on the right a lot of conservatives have been talking about parental rights, whether in the context of what kids are taught in schools or otherwise. And here, what if the parents want or agree that their child should have some sort of medical intervention related to gender identity? What are the standards to apply? What are the limits? So a lot of different kind of angles in commenting and looking at this case. But I have a hard time that the court is going to say that states can't regulate minor healthcare on a theory specifically of equal protection. And again, I think it's important that they did not take up the issue of due process or other kind of more substantive theories.
Nicholas Quinn Rosenkranz: Why is that? Was due process in the case as well?
Ilya Shapiro: It was.
Nicholas Quinn Rosenkranz: And they only took equal protection?
Ilya Shapiro: Correct.
Stephen Vaden: Ilya, you mentioned Justice Gorsuch. He, of course, as you noted, was the author of Bostock. How do you think he votes in the Tennessee case?
Ilya Shapiro: I think he's on Tennessee's side. I mean, he's said a lot, and this came up in the Title VI case last term, like this is limited to statutory text. And his whole argument in Bostock was that gender identity and sexual orientation is inextricably connected to sex, which I agree with. The problem is that if you fire someone on the basis of their gender identity, that's not firing them on the basis of sex necessarily, as Kavanaugh put. And I think the way that this works in a constitutional case is different, as Tennessee points out in their brief today. Boys and girls are treated the same. A lot of transgender activists are calling for medical intervention without any diagnosis of gender dysphoria. So it's just on the say so of the minor. And this thing really has gotten out of hand.
So I think Gorsuch, he's not going to say that straight kids are allowed, or what's it called, cisgender kids are allowed to have these treatments for masculinizing themselves or feminizing themselves, but transgender kids are not. That's not true. They're not allowed. If you think that you're too wimpy looking or something and want to look more like a man as a 13-year-old, you're not allowed. The doctors aren't allowed to prescribe testosterone for that purpose, for example, and the equivalent for girls. So I think Gorsuch is going to be able to distinguish this.
Stephen Vaden: Well, one bit of Tennessee knowledge that I will bring to this, being a native and still resident of the state, is that one of the reasons this bill passed so quickly through the state legislature had to do with Vanderbilt University and some videos that were brought to prominence where Vanderbilt University, and its very well-respected medical center, had a program that specialized in treating transgender persons. And as part of a training program that the doctors who worked in that had and was, perhaps unfortunately for them, recorded, they got up and explained to their fellow doctors how much money was in it for institutions like Vanderbilt. And they gave specific dollar figures of how much for some of the most common procedures these medical facilities made in profit.
And then perhaps more controversially, given some of the other protections that are available in our employment laws, those doctors explained to the doctors who were required to be there and listen to their seminar that if they had any objections to this type of treatment, including religious objections, they had best keep their mouth shut. And all of that was put on video. And when it was released, it incensed the Tennessee State Legislature, and this bill came out shortly thereafter sponsored by the legislative leadership. So that is some background as to why.
Ilya Shapiro: Well, Stephen, I spoke at Vanderbilt two weeks ago, at the law school, mind you, not the medical school. And I at least set the lawyers straight.
Jim Copland: Were there lots of protests?
Stephen Vaden: I'm an alumnus of Vanderbilt, so I would be remiss if I didn't note that they beat Alabama over the weekend. I was two the last time they did that. So very proud to mention that.
Well, Ilya, you started out by noting that this term is being perceived, at least as it stands right now, as more quiet than certainly its recent predecessors. The news media, if you were to pick up the New York Times or to read Bloomberg or whatever your mainstream media source of choice, has painted this as almost an intentional reaction by the court, a court which the New York Times today describes as "battered and bruised" from the pushback that it has received from its ruling in Dobbs, its elimination of race-based affirmative action, and perhaps the presidential immunity decision of last term. Do you see the cases that they have selected thus far as a desire intentionally to keep it more quiet? Or do you think it is just happenstance?
Ilya Shapiro: Well, first I think it's a little rich for the media that's doing the battering and bruising to then note that the court is battered and bruised. But look, there are ebbs and flows, and when you think of the blockbusters that have come in recent terms, whether overturning Chevron or Roe v. Wade, the affirmative action case, reaffirming the individual right to bear arms, there's just a lot of the goals of the conservative legal movement have been achieved. So you're nibbling around the edges in certain respects. And some of this docket needs to be fleshed out in these various areas of law. And on the other hand, the Fifth Circuit has become a bit of a punching bag. For the first time since I can remember it was reversed more than the Ninth Circuit last term.
So I mean, look, the statistics belie the vibe as it were, in the sense that you have this bipolar court, lots of unanimity and heterodox splits and what have you. And yes, the handful or half dozen of politically salient cases have some ideological valence. But the Supreme Court, even though it is lower in public confidence than it has been in past years, it's still three points higher than the previous year, and loads higher than Congress or the president or any other federal institutions. So all of these things are relative. We're at a time of low societal trust in general.
But no, I don't think this is a reaction to all of a sudden, "Oh, we've taken all these big cases, we need a breather term." John Roberts might have that particular opinion, but oftentimes events overcome that. And who knows what'll come out of this election, for example, in terms of whether pre or post-election lawsuits about things being counted improperly or who know, some rogue judge leaving a poll open, or you can imagine the different scenarios. Now, I don't think we're going to have January 6th related litigation because Congress actually fixed that, and it's clear that the vice president has no discretion. There's various tightening of how the actual electors are counted.
Nicholas Quinn Rosenkranz: I'll just say, it's a sort of thankless task for reporters writing the story each year of the theme of the Supreme Court term. So the theme of this term is it's quiet because they're battered and bruised or whatever. The truth of the matter is, the court just does not think in terms of themes at all. So it's just case by case. They get these petitions, they analyze the petitions one by one, and the term may turn out to be a blockbuster term or may not. But it is, I assure you, not because the justices decided, "Let's have a quiet term."
Stephen Vaden: Professor, could I follow up on that for a moment? You teach the next generation of lawyers. And there's been a lot of focus on, some reports and polling that has been disturbing about the views of younger Americans and their general distrust of institutions and perhaps even lack of patriotism, I'll put it that way, their thoughts about this country. And so I'm wondering, as you're teaching the next generation of advocates constitutional law and other courses, what are you picking up about the average student at Georgetown and whether this campaign, intentional as it is, to delegitimize our court system is having an effect on the next generation?
Nicholas Quinn Rosenkranz: Yeah, it is certainly very distressing. I'll say law schools have been probably the best across this dimension as against other departments in universities. And I think it's really because hearing zealous advocates from both sides is baked into the project. So they're sort of forced into a commitment to that at least. And there are lots of departments in the university that don't sign onto that as a basic proposition. But if you're studying American law, you're a little bit committed to, or at least exposed to, that as a proposition day in and day out, and you have to read majority opinions and dissents. So some of the pathologies that we're seeing in universities which are very disturbing, distressing, I think are at least mitigated a bit, not as bad in law schools as they are in some other parts of the universities.
Ilya Shapiro: Well, that's a low bar, Nick, I suppose.
Nicholas Quinn Rosenkranz: It's a low bar. It's a low bar.
Ilya Shapiro: And I have a book coming out in January sounding the alarm of what is happening in terms of the illiberal takeover of legal education. Lawless: The Miseducation of America's Elites. If all of you buy it, I'm certain it's going to be a bestseller.
Nicholas Quinn Rosenkranz: And I mean for it to be a low bar. We have these pathologies. They're just not maybe quite as bad as they are in sociology departments or whatever.
Stephen Vaden: Jim, do you have any thoughts to offer on the attacks on the courts and what effect it is or isn't having?
Jim Copland: Yeah, I mean, I think it's having an impact politically. I do think it's shifted, probably if you look at polling data, how Democrats versus Republicans perceive the courts. This isn't that new. But the Republicans used to be the ones attacking the courts, right? So a lot of it depends on who's winning and who's losing on this.
Stephen Vaden: Are you suggesting that it's unprincipled?
Jim Copland: I'm suggesting a lot of politics is unprincipled but-
Ilya Shapiro: Almost all of the decline in the polling, there's a Gallup poll at the end of every term, but unusually almost all of the decline is from the left. It's not that Americans are uniformly down on the court.
Jim Copland: Yeah, it's the folks that are losing the cases. But they're also hearing the Sheldon Whitehouse case being built and the Fallon propaganda and all the panoply of stuff attacking the court, it has an impact. I don't think it has an impact on the court's docket though. I really don't. I mean to even entertain that hypothesis you'd have to come up with some big grand case that the court was denying cert on of monumental import. I can't think of one, right? So yeah, I think we live in an … system. The case gets brought, it's going to percolate through the courts. I mean the Chief justice, I'm sure... I mean I've been a lot. He wanted to punt on Dobbs. He certainly did in the opinion itself. So I'm sure there's certain cases that he or certain people in the court may not want to take. But the reality is there's no evidence to me that the court's trying to dodge cases here and that that's what's going on. I do think it just happens to be where we sit right now.
Stephen Vaden: I've got one more question and then we're going to go to the audience. So if you've got your question ready, get ready to raise your hand and we'll have a microphone to bring out to you and you can ask our panelists. But the final question that I wanted to ask plays off on this effort to pressure the judiciary to do one thing or the other. And I'm curious whether any of you have read Leader McConnell, as well as it was co-signed by John Cornyn and John Thune, who are the two gentlemen most likely to replace Leader McConnell as Senate Republican Leader next year, where he wrote quite an impressive, just by vocabulary, even if you have qualms with what he wrote, I don't particularly have qualms with him, but I was impressed by SAT vocabulary score in reading his letter, where he pointed out and warned the judiciary about responding through its myriad committees of enacting by rule, such as changing something as pedantic as the Federal Rules of Appellate Procedure or adopting a judge shopping policy, when these proposals have been made in Congress and the bill has gone nowhere. Kind of legislation by other means.
Leader McConnell, in a memorable line, said that, "If you give a whining child candy, you will get a lot more whining." His point being that he did not think that the committees that are part of the judicial conference should respond to these entreaties, although I must note that it has been publicly reported that the judiciary is considering nonetheless enacting prohibitions or items to cut back on so-called judge shopping, and perhaps to put some type of financial disclosure requirement for people like the Manhattan Institute that file amicus briefs in our federal appellate courts. So any one of you that want to address this, I'm just curious what you make of the effort by both sides to get... We're shutting down Chevron in the executive branch, it seems like we're now trying to do some rulemaking through the Federal Rules of Appellate Procedure and other mechanisms in the judiciary. What do you make of this and why is it that everybody but Congress can make law nowadays?
Jim Copland: Well, I would say this is nothing new to some degree, right? This is what happened in the New Deal. I mean the Federal Rules of Civil Procedure, I mean, I wrote about this in my book. I mean the Federal Rules of Civil Procedure were created, they were given to a committee. You had law professors chairing the committee coming up with brand new rules that had never been tried, taking the most liberal ability to sue and get discovery. The class action device was ginned up by then young professor Arthur Miller in the backseat of his professor's car on the ferry to Martha's Vineyard, "Oh, we're going to create this new class action." I mean, these things have been going on for years, I think outside. And then sort of Congress gives the blanket authorization for that. I do think though that it's really important to understand these levers of power, right?
Stephen Vaden: Does it trouble you that they're now being used to advance proposals that are pending bills in Congress that don't have the votes to pass? Is that different? And telling us how many days you have to file a complaint?
Jim Copland: Yeah. Yes, it troubles me. I mean, I think it's... But it's par for the course. I mean, it's just one more lever of this sort of unelected apparatus. We created in the Constitution a bicameral legislature with presentment and veto power. We made it hard to enact law, and this is one more effort as a way to end run it.
Ilya Shapiro: I mean, I would rather the judiciary make rules on amicus disclosure than Sheldon Whitehouse machinating it in Congress. So it really depends on whether it's a process rule or a substance rule. The judiciary shouldn't be making up substantive claims and things like this, but policing itself is certainly within its realm, and you judges clean up your own stables.
Stephen Vaden: Go ahead, professor.
Nicholas Quinn Rosenkranz: I can just attest. I think Leader McConnell's correct. My children are two, four, and six, and if you give a whining child some candy, you do get more whining. He's correct about that.
Ilya Shapiro: That's a policy argument about I think why you might not want some of these rules, the who makes them.
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