The SCOTUS Summer

The Law & Liberty Podcast

On the latest episode of the Law & Liberty Podcast, host James Patterson sits down with contributing editor John O. McGinnis and AEI’s Adam White to discuss what the Supreme Court’s latest rulings mean for the future of law in America.

Show Notes:

Adam White, Constitutionalism After Chevron (Monthly Forum)
John O. McGinnis and Mike Rappaport, Originalism and the Good Constitution

Law & Liberty Supreme Court coverage:

Emancipating the Constitution from Non-Originalist Precedent
Net Choice and the “Big Tech” Scare
Jarkesy Rejuvenates Juries
Murthy‘s Maddening Modesty
A Loper Bright Future for Statutory Interpretation
A Specious Form of Judicial Restraint
Moore‘s Unrealized Potential

Full Transcript:

James Patterson:

Welcome to the Law & Liberty Podcast, I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello, and welcome to the Law & Liberty Podcast. Today is July 11th, 2024, and we will be having a panel discussion on the 2023 to 2024 Supreme Court decisions. Our two panelists are Mr. Adam White and Professor John O. McGinnis. Mr. White has a JD from Harvard Law School and a bachelor of business administration from the University of Iowa, and he is a Senior Fellow at the American Enterprise Institute where he focuses on the Supreme Court and the Administrative State. Concurrently he co-directs the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State. And Professor McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. He’s a graduate of Harvard College and Harvard Law School where he was an Editor of the Harvard Law Review. He also has an MA degree from Balliol College, Oxford in philosophy and theology, and he also clerked at the US Court of Appeals DC among many other important posts.

So, before beginning our discussion, listeners, I want you to know that we are going to be a little longer today because there’s a lot to cover, and this was a very big year. So, let’s get this big question out of the way. What happened with Loper Bright v. Raimondo? The consensus before the decision was that the Court would overturn Chevron deference, and then afterward we got this line about how well now we’re going to have Skidmore deference as a lifeline for government agencies against courts. So, Adam and then John, tell us what’s going on.

Adam White:

Well, that’s a great question, and it’s great to be here with my friend, John. It would take a long time, I think, to know fully what’s going on with this decision. As I warned in an essay for Law & Liberty a couple of months before the decision came out, we surely won’t know for months or maybe years what’s really in this decision just as we didn’t know for decades what was in Chevron itself. This case is really about, picking your own metaphor, the hydraulic forces, the gravitational pulls, whatever we want to call these institutional dynamics that Chevron and now Loper Bright and Relentless are rearranging. One thing I can say though, and this is how I framed it in a piece this week for The Dispatch, I think we can really recognize the Loper Bright decision as an end to administrative exceptionalism.

This was a theme at the oral argument, certainly a theme in the majority opinion in Loper Bright, that what the Court has decided to do as statutory interpretation in the administrative state is just do what it does with statutory interpretation everywhere else. Everywhere in the law, there are ambiguities, always have been, James Madison reminded us of this in Federalist 37, there will always be ambiguity in the law, and the work of the judge is to try to resolve that ambiguity as best as possible, and as the Court put it in Loper Bright, find the best interpretation of even an ambiguous statute. So, now we’re going to see what that looks like in practice. As you mentioned, Skidmore is still on the books. We’ll see how that, whether you call it deference or weight or whatever, how that mindfulness of the agency’s own interpretations over the years plays into the Court’s own interpretation of the laws. We’ll see. But above all, what Loper Bright is doing here is trying to make administrative law less exceptional in the constitutional order.

John McGinnis:

Well, I agree completely with Adam. In fact, I would point out that at the Supreme Court, Chevron had not been cited to support a majority opinion for quite a long time, I think eight or nine years. And that’s because I think the Supreme Court has already become wary of administrative law exceptionalism and has allowed its view of, I think right answer formalism for statutory interpretation to envelop Chevron. Well, Chevron really only applied if there was some ambiguity, and you think that methods of interpretation mean there are really no irreducible ambiguities in statutes. It’s not at all clear what the function of Chevron is. I think the importance of it is less for the Supreme Court, which didn’t defer very much to agencies to begin with, but the lower courts. So, this will create an institutional structure in which lower courts, which actually did use the Chevron framework, I think partly because it got them out of some heavy lifting and hard work at times will have to confront statutory interpretation on their own.

What hopes might come from that is a greater reticulation on actually the rules of statutory interpretation and a greater consensus on that. That’s the hope. The fear is that it will just lead to polarized statutory interpretation in the lower courts, particularly as I think we have a more polarized judiciary with the Trump and Biden judges. So, that’s the fear. With respect to Skidmore deference, I also completely agree with Adam. We certainly will see it on, and I think though that’s going to be a long time before the courts really distill what Skidmore deference means. And I think the hard question for Skidmore deference, which at least in the context where it gives some weight to expertise is what do the agencies have to do to show their expertise rather than politics? Because expertise makes some sense for epistemic deference, but if it’s politics, it’s all the more reason for the Supreme Court not to give the agency decisions anyway. So, let’s see what happens in that way. I think we’re going to see a lot of pushes and pulls on Skidmore.

James Patterson:

So, in this same year we had Loper Bright, we got the case of the Court shooting out another EPA regulation, this time Ohio v. EPA. This was a Biden plan to limit air pollution coming from the West to the East Coast. Is this the kind of jurisprudence we expect to see with a post-Chevron deference kind of interpretation or are these unrelated?

John McGinnis:

Well, I think they are related perhaps at a high level of generality, there may be skepticism about the idea that you can take politics out of the administrative state, and therefore in this case, in the first case, it’s the judiciary who should make the decision. In the second case, it’s the judiciary that should carefully review the process by which the agency comes to its decisions, even within the bounds of what statutory discretion it can have. So, in that sense, there’s a connection, but you might say that there’s some even tension between them because this was quite a case where the Court gave a pretty probing view on what the agency had to do with respect to process, and there’s been a whole movement, which is called the Administrative Procedure Act Originalism, which might’ve been doubtful about the decision in Ohio v. EPA was what essentially Ohio v. EPA focused a lot on is the agency’s failure to respond to comments.

Some people, including Justice Kavanaugh on the Circuit Court, suggest that the agency really didn’t have that kind of strong obligation to respond to comments from those who commented in the notice and comment process. So, this case looks like what was called in the 1970s and 1980s, much more like a hard-look case. We’re going to make sure the agency is really deliberate it, and the way we’re going to police that is to make sure that its process of deliberation looks very sound. So, in that sense, I think it’s an important case, it suggests that the Court is not only going to be not deferential of course at all at the interpretation stage, but is going to be quite, I don’t know, persnickety would be the harsh term, but another way I guess putting it would be to be quite thoughtful, quite focused on whether the agency has shown that it is deliberated carefully enough.

Adam White:

I think that’s a really great point. It’s been interesting over recent years to see the ways in which the Court has ratcheted up procedural standards for agencies. We saw it during the Trump administration in an even harder-than-usual review of the citizenship question on the census, the Department of Commerce case, also in the DACA repeal case. But over and over again, we’ve seen the courts ratchet up, as I said, the procedural expectations that are placed on agencies. And part of that was built into the ever-evolving framework of Chevron, right? One of the reasons why Justice Scalia, who was a fan of Chevron, at least for most of his career, was so frustrated with decisions like Mead in these so-called Chevron/Step Zero cases was that it seemed to put a procedural overlay onto the framework for Chevron deference review. As John points out, Justice Kavanaugh might be the one who’s been the most explicitly critical of this.

I’m thinking back to, maybe this is the case John’s thinking of too. In the DC Circuit case called American Radio Relay League v. FCC, we’re in a concurrence. Then Judge Kavanaugh pointed to a doctrine that in the DC Circuit, it’s called the Portland Cement Rule and said, “This is DC Circuit precedent, but what we’re asking the agencies to do here in terms of how far they need to go to respond to public comments in the notice and comment process, it’s really not explicitly required by the APA at all, and we ought to be very wary of adding to those requirements.” How that plays out in the aftermath of Chevron deference, I’ll be curious because by getting rid of the Chevron framework, obviously the Chevron/Step Zero component of these procedural requirements goes away. But in so many ways, the Roberts Court has tried to tighten up what the agencies are doing procedurally, and also, as John alluded to earlier, questions about agency expertise to the extent they come into play in the new post-Chevron interpretive framework. That’s going to raise real questions about how the agency shows its expertise.

I tried to touch on this in that essay I did for Law & Liberty, but I think that’s one of the really underrated things that’s going to play out after Chevron is how the courts test for expertise in statutory interpretation and what kind of procedural requirements that either explicitly or implicitly imposes on the agencies.

James Patterson:

So, maybe we’re also seeing the courts come after agencies from another angle, namely they want the courts to remain the ones in charge here, namely the case is SEC v. Jarkesy, I’ve actually only read this name in which they seem to have done some pretty serious harm to the ability for these agencies to adjudicate questions internally.

Adam White:

Well, James, I suppose harm is in the eye of the defender. Some people would quibble with that characterization of it, folks who see this decision not as hurting the agency, but just putting it back in its proper institutional role. That’s kind of the connecting theme between the Jarkesy and the Loper Bright cases. It’s an analysis of the agency’s powers and the limits of those powers with an eye to the institutional role. It’s true that commissions like the SEC have a lot of power, and even after Loper Bright, they will have a lot of discretion in interpreting the law. They’ll have discretion over their procedures to some extent, and their factual findings may often be either binding or have some presumptive binding effect on judicial review. But one thing that the SEC can’t do is turn off our constitutional rights like a light switch, and that’s the basic holding of the Jarkesy case, that we have our constitutional jury rights in certain classes of cases regardless of the procedural vehicle that the agency or executive branch uses to enforce the laws against us.

And so, it’s not so much harming the agency, just making sure that the agency is kept in its proper constitutional place.

John McGinnis:

So, I agree completely with Adam’s view, and so let me try to put another connection in between Loper Bright and the Jarkesy case because the Court’s term I think is not only interesting for substance, but for methodology. And so one question, an originalist court faces both originalists with respect to the Constitution and Jarkesy and originalist, perhaps with respect to statutes and certainly the Administrative Procedure Act, which was the basis of its decision in Loper Bright, is what in the world to do when there is precedent against you when there’s precedent that’s inconsistent with the original meaning of either the Constitution or the APA. I think there really are two ways of dealing with that, because two ways of dealing with it and not doing what is problematic in the law, really destroying a lot of reliance that people have had on past constitutional decisions. So, in the Jarkesy case, what we saw was the Supreme Court distinguishing Atlas Roofing and essentially saying … implying perhaps, “We’re not ruling Atlas Roofing, but we’re isolating it. We’re reading it narrowly because it’s inconsistent with the original meaning.”

That’s one way of doing it, what I would call cutting back on non-originalist precedent. The Chevron case is interesting. We haven’t talked about the Chevron overruling case, Loper Bright is interesting because one of the things that Justice Roberts does just sort of Ipsy-Dix it says, “Well, all these previous decisions on regulation that have depended on Chevron were not disturbing.”

And that’s another way I think of protecting precedent. It’s almost a more radical way, which I would call perspective overruling. We’re going to overrule things, and it’s going to change the law now, but it doesn’t mean that you can go back and change the law before. Those are two methods, and I think that’s an increasingly important discussion to have on an originalist court because there are all sorts of non-originalist precedents, non-originalist APA precedents, and non-originalist constitutional precedents. How is the Court going to confront them?

In this term, I’d also point to Grants Pass as another example of that. That was the Eighth Amendment case where they said that the cities in California could apply their laws against camping against the homeless and also got rid or, carefully cabined a case which said you couldn’t penalize people for drunkenness and said, “Well, we can distinguish that case in any way. That case isn’t really very sound.” As an original matter, shows perhaps the way an originalist court is going to start moving the Constitution back to its original meaning without destroying the kind of reliance interests that have grown up around decisions that were quite non-originalist.

Adam White:

John, is it fair to loop in the case from about a decade ago, another separation of powers case, the Public Company Accounting Oversight Board case, the case where you had one independent agency within another independent agency and the Court held that we’re not going to second-guess Humphrey’s executor today, but we’re not going to allow agents Congress to go past Humphrey’s executor in this institutional design. And you could pick your own metaphor. They drew a dotted line around Humphrey’s executor. Maybe they strung up that yellow police tape around Humphrey’s executor and said, “Crime scene, do not enter.” But in any event, they’re not disturbing anything in that precedent. They’re just leaving it alone but ensuring that it doesn’t go any further.

John McGinnis:

I think that’s right. Celia Law, of course, I think is another example of that. And what happens of course is the Court begins with originalist discussion and then goes to precedent. And that’s a different methodology of judging than beginning with the precedent. And of course, that goes to a potential debate about what constitutional interpretation is about. As you know, there are some people who think that the Court should understand the Constitution in a kind of common law way, which should prioritize its precedents. But I think the Court is clearly departing from that at meet with some exceptions, which we can get to. I’d be happy to discuss some of the notable exceptions to that methodology. Of course, I think the presidential immunity case is one of them.

James Patterson:

That’s actually the next question for me. It is only on the Law & Liberty Podcast where you’re going to start with the administrative stuff, and we will then get to whether the United States has made the President a dictatorship, which was kind of the rhetoric that a lot of people were using. Is the President now above the law? Is that what this court has said?

John McGinnis:

I’d like to begin from where I was with the methodology, and then I’ll talk about whether it was above the law, but I think it’s very distinctive in this case that we do begin with cases, and I think this case is in some tension with an originalist interpretation. I don’t see any presidential immunities in the Constitution, although certainly Congress, I think, could grant them, but the Supreme Court is a court, and it just can’t overrule or even I think cut back strongly on cases when that’s not what the parties are arguing for.

And the Justice Department, of course, is in a difficult position here because of the case of Fitzgerald, which the Court had already granted immunity from liability from the … I think it’s described, from the outer bounds of the President’s official duties. In some sense, this was I think an application of the Fitzgerald case, which the Justice Department could never disavow because that was a case that protected the presidents on a day-to-day basis.

That, I think, was the dilemma for the department in some sense. The reason that that decision looks so non-originalist, it looks like a common law decision reasoning from a variety of functional separation of powers opinions. And in that respect, I think it’s a well-written decision. I don’t think it puts the president above the law. The President has to be doing something according to his official duties, unofficial conduct that has no relation to his duties is still can be criminalized, but the concern is that otherwise, the President is going to be just as fearful of being sued, that’s Fitzgerald, fearful that a subsequent predecessor of another party is going to prosecute him.

Let me take the example of that. I don’t know if it came up at oral argument under, I think the Department of Justice’s theory. I think President Truman, for instance, could have been prosecuted for taking people’s property and holding it, which of course is illegal. You can’t go in without a lawful authorization after the decision in Youngstown. So that’s why at least when people have some, I think, there has to be some requirement of some good-faith idea that you are going forward with your official duties that that’s immune from prosecution. That’s the argument. As I say, it’s not obvious to me, it’s an originalist argument. It’s a kind of consequentialist argument that makes some sense as the Court previously recognized in Fitzgerald.

Adam White:

I’m worried now that to the extent that I think the Court’s analysis was right in the immunity case that I’m a bad textualist. I hope I’m not a bad textualist here, John. Let me just offer a few observations. I’ve been struck by the criticism of the majority opinion, particularly in the dissent and elsewhere. There is no presidential immunity clause in the Constitution. I mean, of course, that’s true. I point out there’s no congressional subpoena clause in the Constitution either, and that hasn’t seemed to raise the same kinds of concerns among the critics.

And oh, by the way, there’s no judicial review. There’s no Marbury vs. Madison power of judicial review clause in the Constitution. As we all know, all three of these things, to the extent they exist in our constitution or not, is they’re taken as inferences of the explicit grants of power in the Constitution, and in the context of presidential, why I really don’t have qualms with the Court building its analysis the way it did, is that this isn’t just sort of an abstract question of whether presidential immunity exists or not. It’s an institutional question that implicates both the presidency and also the courts.

The Court has to decide for itself … I won’t put it this way, a question of presidential immunity is a question of presidential power, and it’s also a question of judicial power. And so to the extent that presidential immunity that this decision empowers a president, it also is a question of restraint or self-restraint by the courts. The courts have to decide for themselves how far into the executive branch the judicial process is going to appear.

That is the kind of question that the Court can only answer by trying to draw inferences from the Constitution’s text and our history before and after that text was written and ratified. Or the court can just plow full steam ahead without asking questions, allowing the judicial process to totally subsume the administrative process.

And so I found the Court’s analysis pretty compelling. There are places where I would disagree with it, some of its analysis around the vice presidency, some of that interesting back and forth with Justice Barrett about the scenario involving quid pro quo. I think there are some gaps in that, but overall, I thought that this was a good originalist opinion, hopefully, a good textualist one too, but maybe not, I guess, after hearing how John parsed it.

James Patterson:

We had a couple of Second Amendment cases, or I guess related to the Second Amendment. We had a six/three decision in Garland v. Cargill, which overruled a ban on bump stocks, and then we had a unanimous decision that allowed the NRA to sue a New York state official who was interfering with businesses’ ability to work with the NRA. So the question that I really have about these is gun control in the courts. It seems to be kind of done.

Adam White:

I’m going to let John take that one first. I am not sure that I’ve got broad thoughts on this.

John McGinnis:

I don’t think it’s done. No, I think the Rahimi case suggests that there … maybe I’m not … suggests that there is room for some gun control legislation. Again, I think what’s interesting about Rahimi is the methodological ideas and the methodological disputes. Seven of the justices wrote an opinion in Rahimi because they disagreed on the methodology of how to decide the case.

In my view, it was decided correctly that the question is not, in my view, this is a question about originalism there. I disagree with Kavanaugh’s decision what’s the tradition after enactment long after the enactment of the Constitution, but what’s the tradition around the time of the Constitution that helps us define the scope of a right, like the right to bear arms? Does it include the right to bear arms even if there’s reason to believe that the individual is dangerous?

And I think there’s some evidence that it doesn’t include that from evidence right around the time either 1789 or when maybe more relevantly here when it was thought to be approved in immunity and applied to the states in 1868. I think that’s a pretty plausible argument, whether that goes to some of the other kinds of gun regulations, I’m sort of doubtful, and it certainly, I don’t think suggests that the Court was wrong when it struck down the New York law that required or that forced people to be at the discretion of some bureaucrat who could give them a license to carry a firearm for really any reason at all.

That’s, I just think, inconsistent with the nature of a right and the Court was absolutely correct to strike that down, but I think, and again, I think Justice Barrett probably had the best opinion. I certainly agree with Adam that the opinions, Justice Barrett’s made the best effort at giving an originalist basis for the immunity decision.

And I think again, in the Rahimi decision she correctly said that really what we’re trying to figure out here is the scope of the right and understand that as well as we can from the historical evidence, not just from just points of evidence, but trying to construct a principle which that evidence points to. I’m very hopeful that Justice Barrett being the academic originalist on the Court, may be pointing the Court to a more consistent way of deciding cases on the Second Amendment and others from an originalist perspective.

Adam White:

I’m probably at risk here being a one-hit wonder, a one-trick pony, and bring everything back to the administrative state. But I’m going to do that again anyway. What I find so interesting about these cases and cases before this is the ways in which these cases about constitutional rights really are increasingly in the Court’s docket and in government generally filtered through the administrative state.

And not just in the most recent cases, the NRA case with the New York regulators, job-owning insurance companies, I think did not do business with the NRA. And then we had this case, the bumpstock case about statutory interpretation and the Bureau of Alcohol, Tobacco and Firearms. But even when you go back two years to the Bruin case in New York, I mean, that in most respects was a straight Second Amendment question about your right to keep and bear arms and how it applies in the context of that New York handgun licensing regime, but the licensing regime itself became a central focus of the case.

The sheer discretion that the regulators had in granting or withholding licenses really became central to the case and to the Court’s analysis. And if you pan back even further beyond the Second Amendment, we’ve seen so many examples over the last few years of cases that are primarily on their face about a constitutional right, maybe the right of free speech, the free exercise of religion, but whether it’s the religious liberty case, Masterpiece Cakeshop, that really boils down in the end to an analysis of what the Colorado Commissioners did there, what the record was in the agency, and questions about the agency’s motives or bias against religious people or the free speech case out of California.

I can’t remember. I think it might be Rucho v. Common Cause, I might be forgetting, but it was a free speech case, but it ultimately was a case about how much information is being amassed by the government about people and the effects that that could have on people’s lives as they try to exercise their First Amendment rights over and over again. I think we’re going to see the Court grapple more and more with constitutional issues either explicitly or implicitly through the lens of the modern administrative state. The NRA case, by the way, I find totally fascinating for the same reason that I found the Murthy case fascinating, the one involving the Biden Administration and social media.

That was a case where, I guess, the case won’t proceed. There wasn’t enough evidence there to justify standing or a cause of action. I haven’t really parsed that opinion yet, but I find both of those cases fascinating, the New York case and the Murthy case.

Fascinating examples of how modern administration, modern executive power being so broad, so all-encompassing in politics, so amorphous, it means that regulators, even the White House, might be able to have an extremely powerful effect on day-to-day lives of Americans and people and companies without an actual notice and comment rule or enforcement action or adjudication.

I’ve tried to coin the phrase the passive-aggressive administrative state to look at all the ways in which regulators can regulate without actually regulating. And even though the NRA case and the Murthy case, they came to divergent results so far, and it’s not clear what the future of either of those cases will be or those issues will be. I think they’re an interesting window into some of the next generation of cases we’re going to have around modern administration.

John McGinnis:

Right. I’d just like to add, I think there may be another connection here, insofar as the Supreme Court is constraining administrative agencies. And we also haven’t even spoken to another case that came out about a statute of limitations that allows companies that weren’t in business around the time rule-making was decided to sue years later, which also will constrain the administrative state.

Insofar there are these formal constraints on formal rule-making it incentivizes the administrative state to work informally and do things that aren’t through traditional mechanisms of regulation or law, but the kind of jawboning that was alleged in the cases that Adam mentioned. And therefore I think the Court is going to have to, I think, confront this.

Now, these cases, there wasn’t enough standing, there wasn’t sufficient standing, and some of the challenges struck the court as to facial and not sufficiently apply. Those are all very sensible views of the court to avoid immediately making a decision, particularly before the case is percolated enough in the different circuit courts of appeal.

It’s one of the … that’s kind of passive virtue that Alexander Bickel talked about with disability doctrines not to allow the court to get the benefit of a variety of views and understand how this works in a variety of circumstances. But I think that is the new frontier for the administrative state because all the incentives now are for the government to use this power, which it might call soft power.

But in a world where the government has so much funding authority, so much ability to actually go after you for technical violations, people are going to pay attention when the government asks you to do something, even if it isn’t backed by the force of law.

So I see this as just essentially a part of protecting liberty. It’s very hard to figure out how it will happen because it’s easy enough to figure out when a law is impinging on your liberty, but how is it possible to constrain the government from communicating?

Sometimes there’s good reasons to communicate to companies and the citizens and ask them to do something, and how do we distinguish just really quiet asks from asks that actually are offers that you can’t refuse. I see this as an essential question.

Adam White:

Not to keep belaboring the point, but I really couldn’t agree more with John on this. I think it’s incredibly important. I tried to allude to it myself at the end of that Dispatch piece this week.

There’s flavors of this a few years ago in debates around agency guidance and this question of trying to stop agencies from using guidance, make them go through notice and comment rulemaking more, maybe ratchet up the requirements and notice and comment rulemaking with legislation requiring more cost-benefit analysis and so on.

And the question always is: how do you avoid the unintended consequence of actually exacerbating the problem? Putting more and more of this sub-rosa. The day before we’re taping this, I spoke on a panel that Jennifer Mascott’s new 501(c)(3), the Constitutional Renewal Foundation. They hosted an event in Washington focused on bank supervision, bank examination. And that’s an area where this is becoming even more of a question, the regulation outside of the normal regulatory process.

With cases like Loper Bright and these other cases, it’s really, really important for us to think institutionally and to think about second and third order effects. And I know this is something John’s always tried to do, and I try to do myself, including in the pieces I did here at Law & Liberty before the decision. Think about the ripple effects.

And as John points out, a lot of what’s being decided this term is going to increase the incentives for agencies to regulate without regulating in ways that are going to raise real questions about justiciability, what can be sued over in court, what can’t.

So that means the third order effect here might be reconsiderations about justiciability doctrines. I think in this respect, to the extent the court gets curious about this, it’ll be a very realistic Supreme Court, maybe a new form of legal realism thinking about agency action, what’s actually binding on somebody or not. Not the formalities that administrative law has really relied on for the last 75 years or more, but a really realistic sense of how these agencies make policy, make law in ways that shape people’s lives.

Nick Parrillo at Yale a few years ago did a really fascinating study for the administrative conference in the United States on the use and abuse of agency guidance and how agencies use it, how it’s received by regulated communities.

I think we’re going to see more and more discussion of things like this, and I think … I keep coming back to the term realism. I think it might be the new era of legal realism in administrative law.

James Patterson:

Well, I was going to go back and talk about your original point, Adam, and say that a lot of the original First Amendment, the modern First Amendment cases came from CPI and Espionage Act stuff from the First World War.

And so this has been a problem for a century where you had administrative agencies engaging in suppression of constitutional rights, but that just came to mind.

I don’t want to belabor the point because I wanted to get onto the fact that abortion is back, it’s back in the courts. And we got some interesting decisions Maldi US and FDA v. Alliance for Hippocratic Medicine.

The reason why I sound a little surprised is that it seemed as though, and the Dobbs decision, we had these issues kicked back to the states and the states seemed to want to kick them back to the courts, at least Idaho did after in the Moyle v. US case. They seemed to want sort of an emergency situation restore abortion rights considering their law actually banned it once Dobbs was decided.

Adam White:

Well, not to keep talking about other publications and other podcasts, but I remember when Dobbs was decided, I was on the In House podcast at AEI, and I was asked, “So abortion goes back to the states?”

And I said, “Yeah, sure,” but that includes the biggest state of all the administrative state, and it would just be inevitable that so much of the abortion debates would gravitate toward the FDA, HHS, and other federal regulatory bodies that have a direct impact on abortion and on related issues.

So it’s no great surprise, I think, for any of us that these questions about federal statutes in the Idaho case or the FDA statute in the Alliance for Hippocratic Medicine case that they would be front and center.

I mean, of course, we’re going to see cases coming out of the states; cases eventually involving a right to abortion when the mother’s life is at risk. And that’s going to raise really, really interesting questions or coalitions maybe of pro-choice folks and broader libertarian-minded folks who would want a right to medical treatment when life is in danger.

I think the post-Dobbs era of state-level abortion litigation will look different in the long run than what we saw between Roe and Dobbs. But I suppose it’s no great surprise that we’re starting with federal agencies and federal laws since federal agencies tend to be the things that can move the quickest.

John McGinnis:

Well, I certainly agree with that. I think the other interesting fact about these cases is that the Court, in both the Moyle case and the FDA case, didn’t seem eager to come down with really very definitive rulings. One, of course, went off one standing. They took the other case, but then they said it was prominently a granite.

And I think this again shows that this court, like other courts in the past, really rather uses what they call passive virtues when it can. The abortion decision was enormously controversial, and it would be really problematic, I think, for the court to seem like a court that’s issuing decisions on abortion every year.

And I’m not saying that there were no good arguments. I think there were good arguments that there was no standing in the FDA case and that there were some still unclear interpretations of law out of Idaho that had developed at the oral argument that called for dismissal. But I think the Court is relatively eager to find such issues.

And in that sense, the Court, as with its Dobbs decision, made the matter of abortion not national in the sense that the states are going to make decisions or at least on the substance of whether and how far women can have abortions and when, they’re also I think not eager for the Court to immediately make these decisions itself.

Even on federal laws, they’re going to allow courts of appeals some leeway to make decisions. Of course, at some point when there are conflicts, the Court will have to resolve them. But I think, again, it would like to see evidence of how the lower courts act in this area.

Adam White:

John, you’ve mentioned Bickel a few times. I’m here in my home office. I actually have a small replica of his Yale faculty portrait here in my office, so I’m waving at him now. I’ll send him your best.

But it’s funny, you’ve mentioned a few cases where the Court has not allowed litigation to proceed, right? We’ve talked about the FDA case, Murthy, you know. Over and over again, the court for years has been wary to open the doors too broad for standing to sue.

And so even though the Corner Post case, one of these last cases, extends out the statute of limitations for judicial review of agency action, I think it’s interesting how many of the Roberts Court’s critics, the ones that are predicting total disaster after Loper Bright and Corner Post, this idea that suddenly the court officer doors are open for total upheaval in modern administration. It’s just not true.

They’re looking past all these cases this year and in previous years where the Roberts Court has actually taken care to limit the extent to which the courts can get into the middle of administration. And of course the immunity decision is strongly in that same vein too.

James Patterson:

So we’re almost 20 years into the Roberts Court, and we’ve had a change in the majority from a type 5-4 to a 6-3. What do you guys think is so far the legacy of the Roberts Court, and did that shift when Barrett got onto the Court change that legacy?

John McGinnis:

Well, I do think it shifted, and I think it’s a mistake just to focus on that it has shifted in the sense of sheer numbers, although that’s true as well, that we have a 6-3 majority. Some people call it a conservative majority. I might call it an originalist-oriented majority.

But I think what’s also changed, and there’s been a lot written about Barrett, this term, because she seems at times to go out on her own. And I see some commentators who I think are already hoping that she might, quote, “grow on the Court” and move over to the left-liberal side. I don’t think that’s really likely.

What I see and is really, I think, very heartening is that she brings, of course, the one academic on the Court and I think brings a kind of academic perspective on getting the methodology, originalism, and statutory interpretation, right? And I think that’s extremely valuable.

And so I think it’s always a mistake just to think of it as the court of the court, as the chief justice. As justices readily admit, the Court changes whenever a new person comes on the Court. And I think Barrett, at least in my view at the moment, may turn out to be the most important of the originalist judges because she brings back that methodological rigor, which I think will force other Justices who are broadly in the originalist camp to figure that out. Her voice, I think, is really coming to the fore this term. And that’s not a surprise.

Famously, Rehnquist said, “When Justices get on the court for five years, they try to figure out, well, why are they there. And after five years, they wonder, well, why is anyone. … Why are these other people there?” Because they’re not doing things exactly right. And I think we see that kind of liberation of Barrett this term, not because, I think, we’re going to see a non-originalist Justice or someone who’s going to be interested in pursuing liberal policy results, but trying to get things right. And there’s just a tremendous problem for the Roberts Court, or particularly as I would call it, a court with a majority of originalists, which is how do we go about being an originalist court, both methodologically? What evidence counts for originalist meaning? And Barrett is engaged in that. And how do we deal with all sorts of non-originalist precedent?

And a lot of the Justices are trying to write about that. So in that sense, for an academic who’s been following originalism since the time he was a student where originalism was sort of really a quaint idea that was hardly taken seriously to now when it’s at the front and center of Constitutional law, this is extremely exciting. There’s going to be a lot more affirmant and thought about those essential methodological questions. So I see this as important about this term as any of the substantive decisions as the methodological battles that have been joined, particularly in the Romani decision and in the First Amendment decision on trademarks. Those are going to, I think, have a lot of influence on the law going forward.

Adam White:

Those are great points. And John, your point early on about some of the commentary at the end of the term focusing on Justice Barrett and maybe hoping … It seemed that the authors hoped that she was coming to the left or something. It reminded me of the old line from decades ago, strange new respect. Remember a strange new respect for Justice Souter when he was coming out of his shell on the Court and Justice Kennedy and others. It’s the strange new respect for Justice Barrett. I’d add a couple more points, maybe focusing on specific Justices. I think in the long run, the appointment of Justice Kagan is proving incredibly important on this court. She’s, in the modern era, the first progressive Justice who really speaks textualist as a first language.

And so as we’ve seen in a variety of cases, both at oral argument and in opinions, Justice Kagan is uniquely well-suited to really identify the previously unspoken areas of either disagreement or at least tension within different conservative approaches, different conservative instincts or Justices, and really kind of dig into them, get in there like a … Blanking on the word. But get in and split it apart and sort of widen out those cracks.

And that’s going to be very interesting. It’s going to be frustrating for someone like me at times. But I think ultimately, it’s going to be challenging and for the good in really making textualists think even harder than we’ve had to think before about our instincts, our methods, our jurisprudence. Looking at Chief Justice Roberts across his time on the Court so far, I think it’s clearer that his … The watchword for Chief Justice Roberts is steady administration. I keep thinking back to an article that Scalia wrote—maybe it was a speech he gave before he was a Justice—where he said, “Every generation faces its own distinct threat to the Constitutional order.” For Scalia, obviously, the threat was Warren Court-era judicial activism. I think as you look across cases and across subject matters, you see that for Chief Justice Roberts, one of the greatest problems in modern government, one of the greatest threats to Constitutional government is unsteady administration, wild flip-flops from one administration to the next.

Obviously, we see this most clearly in his administrative law decisions. Most recently, Loper Bright. But going back to the Trump era decisions. However, in the presidential immunity case, that line is the metaphor he uses at the end about the executive branch cannibalizing itself from one administration to the next. From oral argument to his opinions, he is clearly focused, maybe above all, on the fact that our government as a whole vacillates wildly from one administration to the next. We fostered a system in which every Presidential election is now the everything election. John and Mike Rapaport have written about this eloquently in their writings on Chevron deference and polarization. And I think as time passes, we’re seeing clearly now in the way that he selects which opinions he’s going to write and the way he writes them, Chief Justice Roberts is extraordinarily concerned about unstable administration from one administration to the next. And to the extent that sometimes energetic administration conflicts with the need for steady administration, Roberts seems to be focused mostly on steady administration, although not exclusively.

John McGinnis:

I like that about Adam’s comment. One way of saying it is in The Federalist Papers, one of James Madison’s greatest focuses was on stable laws. So long … You could have bad laws, but so long as they were stable, people could acclimatize themselves. So in that sense, you might think that Roberts is channeling the father of the Constitution in his focus.

Adam White:

Well, it’s even more than that, John. When we read Federalist 70, we all know the lines about energy and the executive, but it’s interesting that Hamilton, in that passage, says it’s needed for the steady administration of the laws. Federalist 71 and 72 on the four-year term and the need for opportunity for reelection. Above all, they’re about steady administration. The dangers of mutable administration, as he calls it. I’ve always thought that those essays by Hamilton are really an echo and a refinement in some ways of Madison’s argument for stability in Federalist 49. Even though Roberts himself doesn’t write his opinions with an eye to that language, in the most recent case, in the Loper Bright case, he does use the line steady administration from Federalist 78. I think like a gravitational pull just by the basic fact that we’re living in Hamilton’s nightmare now. We’re living in an era of mutable administration. The Court is being drawn like gravity towards these themes if only because Madison and Hamilton were right.

James Patterson:

So, you guys have touched on this a little bit throughout. And I’m wondering if you have anything further to say about the state of originalism on the Court. It seems like John wants to argue that … and Adam, maybe I’m wrong about this, but you might want to argue that we … Now it’s no longer a question if we are going to have an originalist court, but how we do originalism. And does this mean that it’s really moved from a rival to living Constitutionalism and is now just the predominant way of doing jurisprudence? Or is there some sort of looming threat of an alternative, for example, common good constitutionalism of Adrian Vermeule and Conor Casey?

John McGinnis:

Oh, I don’t think … common good constitutionalism is not a threat to the Supreme Court. There are no advocates of common good constitutionalism there. It’d be interesting if Trump were reelected whether Trump would continue with appointing, as he did, three originalist judges. So I don’t think that’s the issue. I think the issue for originalism is really the one of precedent. So in areas where there are isolated precedents or precedents that can be isolated, I think we’ll see originalism as the order of the day. But when we come to an area like … It’s not only the Fitzgerald case, but the concurrence in Youngstown, even some of the language in Morrison, we can’t impinge on executive authority, where we really have a real body of functional, might say, living Constitutionalist law that hasn’t been at least tested much by its connection to the text. It’s not obvious how we move back to originalism without disturbing a lot of reliance issues.

Another area I would call would be the First Amendment where it’s not obvious to me that New York v. Sullivan, the case that puts kind of restrictions on libel, was consistent with the original Constitution, but that’s built up a body of law. You might say our campaigns have been built up over that. I think that’s the hardest issue. So I think we might see a kind of a bifocal court in the sense that when there are issues of new impression or when there are issues that only have isolated precedent, we’re going to see a real rationing up of focusing on the original understanding. And that’s going to be facilitated. I think that one important point is facilitated by the culture of originalism that is growing up in law schools and among academics where there’s a lot written about the history of various clauses.

There needs to be a division of labor because Justices can’t spend their time doing serious archival and other kinds of research, but that will be brought to them. And insofar as they show an appetite for it, amicus briefs and advocates will bring it to them. And I see a real opportunity to move in an originalist direction. I think the harder question is when we’ve had law that has been built out in a completely non-originalist direction, what does the Court do there? And I don’t have an answer to that. At the moment, my sense is that it’s likely to continue to be a kind of common law court on matters like, for instance, the First Amendment.

Adam White:

John, your comment reminded me of Scalia’s quip in originalism, the lesser evil. Remember, he’s sort of deconstructing Taft’s opinion for the Court in Myers. And then he grants that it’s really hard to do originalism perfectly. He also said that doing justice to this question of executive power would probably take 30 years and 7,000 pages. But of course, courts don’t have that. And that’s why it’s incumbent on scholars to do the work ahead of time.

I agree with John that it’ll be incredibly interesting for the next few years or decades to watch this tension between originalism and precedent. I’ve spent some time going back to the writings and the non-judicial writings of the early Warren Court Justices, including Warren himself at the very end of his time on the Court, sort of reflecting on precedent. And the great irony now is that those Justices who created so many of the precedents that now are being given weight, they didn’t care at all about precedent. And they were often explicitly so. Chief Justice Warren, Justice Goldberg and others were really, really confident, often glib, about what little regard they gave precedent in the issues they cared about.

Ironically, now we have Justices who are originalists … So they, in theory, probably shouldn’t care about precedent maybe, but in practice, they often do. And for what it’s worth, I think that’s a very good thing. So I’m watching that. Also, and maybe this is sort of a mundane observation, but originalism arose as a tool of judicial restraint, as a tool for skepticism of broad judicial pronouncements on what the Constitution means or what it ought to mean. It was originally used as almost sort of a fact-checking device, a great tool in dissent.

But now of course, it’s the tool of the majority. And as we’ve seen for years, but now we’re really going to see with the recent changes in the Court’s personnel, we’ll see how originalism plays out both methodologically and politically as a tool of majorities. And since we keep bringing up Bickel, my own personal instincts for better and for worse tend to be on the judicial restraint side. And so I’m a little bit wary or a little nervous about how originalism will play out in the long run as a tool of confident majorities as opposed to a tool of those who were debunking confident majorities. And I’m very interested to see how it plays out. And I’m hopeful that it works out well.

James Patterson:

Well, that is a wonderful note to end on, especially because it does give a sense of anticipation for the future. The Court will, of course, always have business before it, so we’ll have to do this again next year. Thank you so much, Professor McGinnis and Mr. White, for coming on the Law & Liberty Podcast.

John McGinnis:

Thank you. Enjoyed it.

Adam White:

Yeah, me too. My pleasure.

James Patterson:

Thanks for listening to this episode of the Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.