Constitutional Law has changed dramatically in the past few years, and therefore so has the course for law students. In this episode, Berkeley Law Dean Erwin Chemerinsky — a leading scholar in the field who has been teaching the class for decades and is the author of a popular casebook — talks about the U.S. Supreme Court’s most recent term. It’s the latest in a series of monumental years for the Court, and Chemerinsky analyzes these sweeping changes with Michael Dorf, the Robert S. Stevens Professor of Law at Cornell Law School, and CNN Chief Supreme Court Analyst Joan Biskupic.
Professor Dorf has authored or co-authored well over one hundred scholarly articles and essays for law reviews, books, and peer-reviewed science and social science journals. He is a co-editor of a Constitutional Law casebook, writes a bi-weekly column for Justia’s web magazine, Verdict, and posts several times per week on his own blog, Dorf on Law.
Biskupic has covered the Supreme Court for more than 25 years and has written several books on the judiciary, including Nine Black Robes: Inside the Supreme Court’s Drive to the Right and its Historic Consequences and The Chief, a biography of Chief Justice John Roberts.
About:
More Just from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Have a question about teaching or studying law, or a topic you’d like Dean Chemerinsky to explore? Email us at morejust@berkeley.edu and tell us what’s on your mind.
Production by Yellow Armadillo Studios.
Episode Transcript
[MUSIC PLAYING] ERWIN CHEMERINSKY: Hello, listeners. I’m Erwin Chemerinsky, Dean of Berkeley Law, and this is More Just, a podcast how law schools can help society’s most difficult problems. 25 years ago, I wrote the first edition of a constitutional law casebook. Earlier this year, the seventh edition was published. I’ve never done a new edition so different from the prior ones and from all of the early editions. Constitutional law has changed dramatically in the last few years.
In this episode of More Just, I want to focus on the Supreme Court’s October 2023 term. It was another monumental year in the Supreme Court, and I truly cannot have two better people to discuss it than Joan Biskupic and Michael Joan is the CNN Chief Supreme Court Analyst. She’s covered the Supreme Court for more than 25 years and has written many books, including, most recently, Nine Black Robes: Inside The Supreme Court’s Drive to the Right and Its Historic Consequences, and The Chief: A Biography of Chief Justice John Roberts.
Mike is the Robert S. Stephens Professor of Law at Cornell Law School. He’s authored or co-authored over 100 scholarly articles and essays for law reviews, books, and peer reviewed journals. He’s co-editor of a constitutional law casebook, writes a biweekly column for Justia’s web magazine, Verdict, and posts several times a week on his own prominent blog, Dorf on Law. Joan, Mike, thank you so much for doing this.
I think we should start by overall thoughts with regard to the term. Joan, if I could ask you first, what was your overall reaction to October term 2023?
JOAN BISKUPIC: Thank you, Erwin, and it’s wonderful to be here with you and Mike for this podcast. I would focus just briefly on three individual justices, who I think kind encapsulate the evolution of the John Roberts court. I would start with the chief himself, who appears to have reached a turning point.
I think epitomized by the ruling in Trump versus United States, his vision for the high court has become more aggressive. He is certainly trying to reclaim the place that he might have lost two years ago with the Dobbs ruling that ended all abortion rights nationwide under the Constitution. Not only was he taking such a aggressive, muscular approach in the Trump immunity case, he kept most of the important cases for himself across the board, including the one that reversed the Chevron doctrine, the 1984 precedent that gave federal regulators considerable power over health care, food, and drug safety, the environment, consumer affairs.
You just can’t name a big case that John Roberts didn’t claim for himself. And I think that what we saw this year with him is him edging to the right to make sure he can control the court, control the opinion in a way that he was not able to do in Dobbs.
Second justice, just briefly to mention is Amy Coney Barrett, who this year, I think, really made a difference for all the tightest cases. Her vote made the difference when the justices laid down some First Amendment rules that we’ll talk about in the NetChoice case. Her position made a difference in the Idaho abortion rights case involving EMTALA that will probably mention and in the Trump immunity case, she was the one member of the Conservative side who broke from her brethren in a small way, but a significant way on whether official acts could be used for evidence in cases going forward against a former president.
And then finally, just to show how one individual conservative can go from winning, winning, winning to an unusually frustrating year, and that would be Samuel Alito, who wrote the Dobbs opinion two years ago, who has always been with the majority and pushed as hard as he can for hard right decisions.
He lost two cases this year that he was writing that would be NetChoice and Trevino that will probably mention later, and he was a big loser in the Idaho abortion case where he was with the majority to allow the Idaho rigid abortion ban to take full effect in that state, but then saw his majority slip away by the end of the session. And he’s someone who, even when he’s winning, exudes a kind of frustration and vexation. But this time around, he really showed frustration because he did end up on the losing end in a couple of key cases
ERWIN CHEMERINSKY: Thank you so much. Mike, your perspective with regard to the term.
MICHAEL DORF: So I agree with Joan’s analysis. I would add a few things. First, you can’t really think about this term at all outside of the two Trump cases. It’s hard to overemphasize how important those were, so that they overshadow everything. And those, of course, were the case reversing the Colorado Supreme Court and allowing Trump access to the ballot, which was unanimous in the result, but split ideologically on some of the reasoning. And then, of course, the immunity decision, which we’ll talk about.
So everything else in some sense is almost a footnote, but those are important footnotes. So Joan mentioned the overruling of the Chevron doctrine of deference to administrative agencies. That is of a piece with the. Decisions of the Roberts court in the last several years, undermining the power of administrative agencies, especially using something called the major questions doctrine, so that’s one development.
There were some interesting cross ideological moves. As I mentioned, the court was unanimous, at least in the result in the Trump ballot access case under Section three of the 14th Amendment. There was a non-ideological split in the Purdue Pharma bankruptcy case, which was quite interesting, I thought. And there’s technical arguments there, but you’ve got a majority by Justice Gorsuch and a dissent by Justice Kavanaugh, each joined by a cross ideological coalition, and they really go at each other. So it’s not just on cases where there’s a left, right political split that these justices really will hammer each other.
There were also a number of cases where the court didn’t decide big issues. Joan mentioned the EMTALA case out of Idaho. There was also the Mifepristone case where they found that there was no standing. There was another case, Murthy against Missouri, where they found no standing in challenging the Biden administration’s regulation of social media.
So if it were not for, I think, the Trump cases, we might be viewing this term as kind of a mixed bag, some non-ideological split, some not going as far as you might think. And some standard wins for conservatives, but of a normal trend line. But it’s hard, as I say, you can’t really take those two cases out.
The final thing I’ll say is that overshadowing the term, I think, were the ProPublica and other news stories about Justice Thomas and to some extent, Justice Alito also the story of Justice Alito’s flags, which undoubtedly made the most conservative justices on the court feel a sense of siege. And I think that some of the anger that Joan identified in Justice Alito’s separate dissent in the EMTALA case might have been fueled in part by his sense that they’re out to get him.
ERWIN CHEMERINSKY: Thank you so much. What I’d like to do now is to break down what each of you have said and go step by step through as much as we can. You both understandably start with Trump versus United States. There is everyone knows the Supreme Court held that when the president is exercising official powers under the Constitution or statute, the president is absolutely immune from criminal liability, that the motive of the president doesn’t matter. And in fact, anything done in this realm can’t be used as evidence to establish liability in other realms of presidential power. Mike, if I could start with you. How are you going to teach this class in your constitutional law course?
MICHAEL DORF: So that’s a great question. I edited the supplement to my case book this year, and it’s I made it a principle case. As you know as an editor of your own case book, you have this choice between making a case, a feature or just a kind of what we call a squib case, just something on the side, and this is definitely a featured case.
I want to teach it as, on the one hand, how does this fit in or not fit in with the previous doctrine. So the majority opinion relies very, very heavily on Nixon against Fitzgerald, which was the case that said that the president has essentially absolute immunity against civil lawsuits for his official acts while as president. And so Roberts seems to say, well, if he has immunity from civil acts, it follows a fortiori even more strongly he should have immunity against criminal prosecution because that’s even more serious, and there’s a certain logic to that.
But then you put it in a different context and you ask, well, how does this fit with the overall structure of the Constitution? I want to point to the difficulty of reconciling what the court does in this case with the text of the impeachment clause, which says that somebody who is removed, that that doesn’t mean that they’re subject– that they’re criminally prosecuted, but they can be further prosecuted.
And even the Trump lawyers thought that an ex-president could be prosecuted for official acts after being successfully impeached and removed. They had this crazy argument that was a necessary condition, but they didn’t take this extreme position the Roberts court took. So in some sense, the question really is teed up by Justice Sotomayor in her dissent when she says this, you’ve established what is essentially a monarchy here. You’ve put the president above the law.
And of course, I will probe students, well, what’s the court’s answer to that? The court’s answer is, well, no, he’s not above the law because part of the law is that the president is immune. Well, that’s kind of a magic trick that anybody can see through that. So the final thing, I don’t know how much. I’ll do this with my students because I try to be as, not neutral, but I try to be as balanced as I can. But the thing that was most amazing to me about this case is how they treated it as a case about a hypothetical future president rather than the former President Donald Trump, who incited an insurrection.
ERWIN CHEMERINSKY: Joan, when Gerald Ford pardoned Richard Nixon, no one, I remember said, well, it’s unnecessary for him to pardon Richard Nixon because Richard Nixon has absolute immunity from any criminal prosecution for anything done in office. And yet you’ve reported and wrote a wonderful piece for cnn.com that there was never dispute among the justices, the six conservatives from the first conference about the case you said always favored there’d be absolute immunity. Does that seem surprising to you?
JOAN BISKUPIC: It was. I think there’s– from start to finish, there’s been sort of a disconnect on this case between what the court was doing and what the public expectations were. Just remember, they held nearly three hours of questioning on this case, and it really ran the gamut. There were so many different issues that they had to resolve.
And I think that it was, a lot of people who understand the court’s thought, OK, there’s going to be a certain measure of vindication for Donald Trump. The lower court opinion from the DC circuit is not going to stand. But yet this court is not going to rule in a way that would give Donald Trump some sort of banner to wave on the campaign trail.
I felt that it would be as Michael has just referred to teaching his class some balance, I thought there would be much more of a regard for at least what special Counsel Jack Smith was trying to do here. But what I learned, as you’re mentioning, Erwin, is that behind the scenes at their private session, the very next day after the court had heard oral arguments, there was no ambiguity, there was no splintering.
John Roberts was ready to write with bold strokes that a former president is entitled to a presumptive, if not absolute immunity for all official acts. And critical here, his construction of official acts as opposed to private ones is pretty extensive. There was some division, as I went on, with Justice Barrett, but it was actually minor in the whole scheme of things because she signed virtually all of his decision.
But it was the gap between what those of us in the courtroom heard and what happened the next day was pretty stunning, and I think that it gets back to my idea of how John Roberts approached this case. And to Michael’s point about the kind of hypothetical situation that was, again, divorced from reality because we’d already seen how the former president had acted, whether it was illegal across the board or if it was just Donald Trump back in 2020 and 2021 was there for all to see, so there was no kind of guesswork of what would happen down the road for the future president.
But John Roberts thought that he could say, this is only about the presidency. It’s not about Donald Trump. He had that line in there in his final opinion, that said something like, unlike the political branches and the public at large, we can’t afford to fixate on the current president. We have to look beyond that. And, I have to say that he was, obviously influenced by his experience in the Ronald Reagan and George H. W. Bush administrations, but pushed it even further than we would have thought.
And the other thing I would mention, not just what I found out went on in conference, but just think of what has happened since. Think of how the special counsel has reacted to this and the dilemma that it’s creating. We’re taping this in August. I remember on July 1 when this opinion came down, and in the immediate days, there was a lot of discussion of how easy or hard this case was going to be to prosecute in light of what the justices had done.
But we know now at this point that special counsel Jack Smith has had to buy more time, buy even more time than the court gave as it didn’t issue the mandate on the order for what 32 days or whatever it is. By law here that the special counsel has asked for even more time to try to figure out what actions of the former president’s would fall into definitely immune, presumptively immune things that would be private and not shielded from prosecution. It’s just not an easy standard to administer down the road.
ERWIN CHEMERINSKY: It’s really great. Both of you, great points about the case, and we could continue talking about it. But I also want to cover some of the other major cases. Each of you in your introductory remarks talked about the administrative law cases of the term. And for example, you both mentioned the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, where the Supreme Court held that no longer should courts defer to agencies when they’re interpreting ambiguous statutes.
There was also the case Securities and Exchange Commission v. Jarkesy, which said that agencies can’t impose civil penalties, at least, in fraud cases. Those have to go to federal court. There was Corner Post versus Governors of Federal Reserve that said that a person can bring a challenge to an agency action six years after they’re injured. It’s not six years after the agency action.
To me, all of these things mark a real shift in authority from agencies to courts. And Mike, you mentioned the major questions doctrine that is also doing this, where the court says that an agency can’t act on a major question of economic or political events unless there’s clear congressional guidance. Mike, if I can ask you the same question I did before, when you teach separation of powers, how are you going to teach these cases that are such a dramatic change in the law?
MICHAEL DORF: So the first thing I’ll say is I’m only going to teach the Jarkesy case in my federal courts class because you can’t possibly understand this as a first year constitutional law student. You need to know all about the court’s distinctions, fine grained or impossible to understand between public rights, and private rights, and all of that.
So the Jarkesy case, I think arguably wrongly decided, but it falls into a kind of separate category. But Corner Post and Loper Bright are squarely within in the domain of separation of powers. Now, technically, you might think that Loper Bright isn’t a constitutional ruling. What the court says is that the Chevron deference doctrine was in violation of the Administrative Procedure Act, which is a statute. The Administrative Procedure Act gives courts the authority to make decisions of law.
And they said by giving that power over to the agencies, we were violating the act, but it’s constitutionally inflected. The court says at various points, quoting Marbury against Madison, “It is emphatically the province and duty of the judicial branch to say what the law is.” And they say that allowing agencies to say what the law is usurps that power. So in a sense, you could discuss this case, the opening week of constitutional law when you’re talking about Marbury againt Madison.
When I teach Marbury against Madison, there’s Marshall’s argument, there are the counter arguments, and then there’s always the question, OK, so what exactly is the scope of this judicial power? And until now, that question has focused on somewhat interesting set of sub issues like to what extent can the executive branch decide not to defend a law when it’s challenged because it’s going to exercise its own constitutional judgment? It’s a question of to what extent is the judiciary’s ability to say what the law is exclusive of other branches.
I think Loper Bright fits within that paradigm, in part. It’s the judiciary, not these administrative agencies. It happens that they are, you can fit that into a separation of powers framework in which the administrative agency is part of the executive branch, but this also applies to so-called independent agencies. And so I think that while it fits within the constitutional paradigm of judicial power, versus legislative power, versus executive power, it’s really an attack on the administrative state.
Now, there’s a constitutional version of that and an ideological version of that. The constitutional version of that says, Constitution creates only three branches. It gives the legislative power to the Congress, judicial to the Article III judiciary executive power to the president, and giving what is effectively judicial power to administrative agencies doesn’t fit within that framework. That’s the constitutional way to understand it. And there’s a lot of scholarship that makes that argument. I don’t find it very persuasive, but I understand it, and we can have a discussion about that.
But then there’s the ideological frame, and that, I think, is what’s doing all the work, especially when you put this next to Corner Post, which is not about any big constitutional issue. It’s just an interpretation of a statute of limitations. And, no matter what the issue is, whether it’s statutory interpretation, whether it’s constitutional law, whether it’s some hybrid, the answer seems to be for the Roberts court, the agency loses. And that, I think, is best explained through an ideological lens that is hostility to regulation.
ERWIN CHEMERINSKY: Joan, could I ask you to follow up on that? All of these were 6, 3 decisions. Both Loper Bright and Jarkesy were written by Chief Justice Roberts, Corner Post was written by Justice Barrett. How do you see these cases fitting into the overall jurisprudence of the Roberts court over the last few years.
JOAN BISKUPIC: Yeah, I would reinforce what Mike just said about the ideological framework here. So much of what former President Donald Trump was known for doing with the judiciary is appointing people who would reverse Roe v. Wade. But the administrative state was a real target for people like White House counsel Don McGahn, who had a very strong hand in choosing who would get on this court.
And a couple of times over already I’ve mentioned where Trump’s third appointee, Justice Barrett, has broken off, but she didn’t break off at all in any of these. She is 100% with the Trump appointees and the other conservatives in really wanting to diminish agency authority. I mean, that’s what this is all about. Justice Gorsuch has just written a book, that’s what this is all about. This has been an agenda item of the chiefs, and all six of them now in the conservative supermajority.
And I think it goes to your original point as you introduce this topic or when, and that is a kind of judicial supremacy here. This is not just taking power away from the agencies. It’s giving it to judges. And I think in dissent, Justice Elena Kagan in the Loper Bright decision referred to judicial humility being overcome by judicial hubris.
And just this idea that– actually, there was a line of the Chiefs that was something like, agencies don’t have any special competence in resolving ambiguous statutes, courts do. And that in and of itself is such a strange statement because the notion that agencies whose mandates are these statutes that they would not have any special competence to understand what their individual mandates are. It seems to be quite an extreme statement on its face, but I think it just goes to show that the real power here is being shifted to the judiciary.
And just one final note I’d make is that I spent a lot of time going back through the papers of Justice Stevens and Justice Sandra Day O’Connor for the Chevron case. And it was a decision that just hung by a thread by a six justice bare majority. And Chief Justice Rehnquist and Justice Thurgood Marshall were out because of illness, and Justice Sandra Day O’Connor dropped out at the very last minute because of a conflict with her father, who had owned some property in the energy business.
But it was– so it was a decision that was Justice Stevens later wrote that he didn’t realize how big it was going to become, but it did become so big. So many courts have relied on it. The Supreme Court had at one point relied on it. But I was struck by how the Chief Justice, John Roberts, really wanted to diminish the decision. I think he used the word decaying at one point. It’s decaying reasoning.
It just really gave it the back of his hand, almost the same way that the majority had given Roe v Wade the back of its hand. Roe v Wade and Casey is saying they were so poorly reasoned that there was no way to keep it, and that’s how I felt that he had regarded Chevron, despite the fact that Chevron had become something much larger than the original decision.
ERWIN CHEMERINSKY: And Chevron was interpreting a statute as opposed to say, Roe v Wade was interpreting the Constitution. And the Supreme Court has said that there’s more weight to stare decisis with regard to statutes, because if Congress doesn’t like how the court interpreted statute, Congress could change it. One of the points of Justice Kagan in dissent is that if Congress didn’t like Chevron deference, Congress could have any time in 40 years changed it, but I don’t think that played any role at all for the majority.
JOAN BISKUPIC: That’s right.
ERWIN CHEMERINSKY: Let me move to another case that was alluded to. And this wasn’t and a six three, and it wasn’t a conservative result. It’s the United States versus Rahimi, involved a federal statute. It prohibits those under a restraining order and a domestic violence case from having a firearm. And the Supreme Court, 8 to 1, upheld this. Though, there were seven different opinions, many of which were arguing about how to be an originalist or whether to be an originalist. Mike, again, I’d be interested in your reaction of how does this fit in the Second Amendment jurisprudence? And how do we teach this case, given all of the discussions about originalism within it?
MICHAEL DORF: So it’s a really interesting question whether Rahimi and the case that it somewhat cuts back on, which was two years earlier, New York State Rifle and Pistol against Bruen are actually originalism or something else, and I think Justice Barrett has spoken most thoughtfully about that. But just as a matter of the Second Amendment, so in 2008, the Supreme Court for the first time recognized as an individual right to firearms. They extend that to prohibit– as a right against the state as well as the federal government in 2010. And then in 2022, they say it doesn’t just apply in the home, it applies out of doors as well, and so they struck down New York state’s gun licensing law.
I think a lot of us expected that result in the Bruen case in 2022. What we didn’t expect was the test that Justice Thomas, who wrote for the court in Bruen announced, which as he said, in order for a regulation of firearms to be valid, it must be analogous to a regulation that was widely accepted at the time of the founding, basically, 1791, when the Second Amendment is adopted, or possibly 1868, when the 14th Amendment is adopted and subsequently incorporates the Second Amendment against the states.
Now, the reason I say that’s not exactly originalism is because the flavor of originalism that has been dominant since Justice Scalia came to the court is what is sometimes called public meaning originalism. You look to the public meaning of the words used. You don’t ask, well, what did the people who adopted this intend or expect?
What Bruen and I think Rahimi to some extent as well do, is they say, well, let’s look at who regulated firearms and to what extent? And that will give us a good sense of what people might have expected, but it doesn’t tell us anything about the meaning of the words in the Second Amendment. So there’s a real challenge there. Moreover, the court has come to speak of this in terms of history and tradition. And histories and traditions can exist in tension with and not just in support of whatever words are in the Constitution. Sometimes people adopt a constitutional provision to make a change to what the existing practice is.
Now, as far as the actual holding in Rahimi, the case in a sense, decides itself. Sometimes the facts of a case will decide the case, and then it’s a question of putting the law to make it fit. So we talk sometimes about– you hear supporters of gun rights talk about the way to stop a bad guy with a gun is a good guy with a gun.
Well, the protagonist here, Rahimi, was definitely a bad guy with a gun. He had repeatedly threatened his ex-girlfriend with a weapon and others. He was wanted suspect in five shootings, and he was subject to a protective order. And as a result, under a federal statute, he wasn’t– he was criminally charged because if you’re subject to a state protective order that forbids you from carrying firearms and you carry a firearm, you violated a federal law.
It was inconceivable that the Supreme Court was going to say, yeah, the point of our Second Amendment jurisprudence is to allow domestic violence abusers to carry firearms and use them to threaten people even though they’ve got to stay away order. Nonetheless, Justice Thomas dissented. But on the facts of the case, I think it’s a pull back.
My question, I think, and I don’t think we have an answer to this is whether it tells us anything about constitutional interpretation, either in the Second Amendment context or more broadly going forward, because presumably at some point the court will take a case involving Second Amendment rights with a more sympathetic character who’s using a gun, as they did in the Heller and McDonald cases, which were the first two, where it’s Heller is an off duty police officer who wanted to have a gun in his home, and he lived in a high crime neighborhood. So I don’t think we know whether what they’re doing in this case is going to have legs, jurisprudentially.
ERWIN CHEMERINSKY: In your right, of course, in the earlier cases, Heller, Bruen, there were ideological challenges. There were suits for declaratory judgments. This is different than this is a criminal defendant being prosecuted. As a criminal defendant who has a record that shows he’s quite dangerous, hard to know what role it played. Let me just ask a follow up question, then one for Joan.
What I found out about Chief Justice Roberts majority opinion is that he never talks about why this law is important in terms of saving lives in women’s lives. He wants to focus still on, well, in the 19th century, there were sufficient analogs like surety laws to make this law constitutional. Did you find that a significant omission in terms of what you’re saying, in terms of the legs of the approach of the court?
MICHAEL DORF: Yeah I mean, it’s in a way he’s boxed in because he wants to claim that he’s being faithful to the test that he signed on to in Justice Thomas’ opinion in the Bruen case, which says we’re not going to do what we do in other rights cases, which is, well, is there a compelling interest and is this law narrowly tailored to override it? Which that’s a pretty demanding test. You end up striking down a lot of laws applying that, but they don’t do that. They say it’s this historical test and therefore all you can do is look to analogies from the old days.
The closest I think he comes to trying to get the equity of the law in is through his recitation of the facts and showing what a bad guy Rahimi is. But of course, then that’s just– you could say that’s just about Rahimi.
ERWIN CHEMERINSKY: Joan, one thing that’s interesting about this term is a significant increase in concurring opinions, and in that sense, Rahimi is representative. There were five concurring opinions, plus Justice Thomas’s dissent. What do you make of that trend, and what do you make of it in the context of this case?
JOAN BISKUPIC: Well, in the context of this case, and exactly how do you practice originalism? I think it’s all– it just shows you the difficulty. And just about a week before Rahimi came out, there was the Vidal versus Elster case, that’s the Trump too small case where the justices really splintered. You talk about concurrences and trying to figure out how should this notion of history and tradition be applied to understanding? In that case, it was trademark law, but I thought that it foreshadowed what we some of what we then saw in Rahimi.
And in that case, Clarence Thomas announced the judgment of the court. Clarence Thomas, who split off obviously, in Rahimi, and who has always seen himself as someone following in the original footsteps of Scalia, or actually going much further than Scalia. But in that case, we had so many. Justice Kavanaugh wrote separately, Justice Barrett wrote separately, other justices wrote separately, and just all trying to give their different take on just how to use history and tradition to interpret. In that case, it was trademark law, but this is now obviously a Second Amendment provision.
Just as Elena Kagan spoke recently at the Ninth Circuit, and she actually brought up the idea of these many concurrences, I don’t think she was thinking specifically of either Rahimi or the Vidal versus Elster case, more thinking about just how everyone seems to have a different idea of where the court should be going and some justices are breaking off separately. For example, in Trump v. U.S, Justice Sotomayor is leading the dissenting wing, and then Justice Jackson feels it’s important to also add her two cents.
So I think she was sort of speaking more broadly about concurrences, as you are here with this question, Erwin. But I did want to point out how it’s really shown how the original Bruen coalition on the Second Amendment from two years ago has so divided.
ERWIN CHEMERINSKY: Thank you. Well, let me use that as the transition to talk about another case that was mentioned at the beginning, and this is Moody versus NetChoice. It was one of two cases that came to the Supreme Court, the other being NetChoice versus Paxton. They involved, respectively, laws from Florida and Texas that prevented large social media companies from engaging in content moderation.
The Supreme Court did something unusual. It reversed the lower courts. It didn’t directly opine of the laws were constitutional or not. And the Supreme Court said, well, this is a so-called facial challenge to the laws and arguing that the laws are unconstitutional on their face. In order for a court to come to that conclusion, it has to look at all of the constitutional and all of the unconstitutional applications and make a judgment. Joan, you wrote a terrific piece for cnn.com talking about how the court came to this conclusion. Be interesting to have you described that and why you think the court did what it did?
JOAN BISKUPIC: Well, as I wrote in that piece, Justice Samuel Alito had the majority initially, and he really pushed hard to adopt the interpretation that the Fifth Circuit had used when it looked at the Texas challenge rather than the 11th Circuit, reviewing Florida, just to remind everyone, these laws were passed after conservatives were claiming that their viewpoints were being censored online by Facebook, and YouTube, and other platforms.
And after Governor Greg Abbott signed the Texas measure, NetChoice and internet trade association had brought this lawsuit. And when the Fifth Circuit looked at the case, it said, there is no real speech interest here. The Fifth Circuit obviously known for its own right wing streak said that the platform’s content moderation activities don’t rise to speech that would be protected by the first. The 11th Circuit interpreting the NetChoice’s challenge to the Florida law went in another direction.
Coincidentally, these two are, one was written by Andrew– The Fifth Circuit decision was written by Andy Oldham, a former Alito clerk, who was going pretty strongly against the First Amendment interests here. The 11th Circuit decision was written by Kevin Newsom and taking the opposite tack and declaring that content moderation implicates first Amendment protections for editorial discretion.
And when Justice Alito originally had the majority, he was pushing more in the Fifth Circuit direction, even though, again, this is all part of a ruling that’s really just sending the cases back. But what he was writing behind the scenes would have been more in line with the Fifth Circuit’s Andy Oldham. And Justice Barrett and Justice Jackson, who were originally in his majority, said, no, we don’t want to go take that approach. We think that there is some First Amendment implications here.
So by the end of the negotiations, and this case came out on the very last day of the term July 1, Justice Kagan had seized the majority to write that there are important First Amendment concerns here with the editorial discretion that’s exercised with the content moderation. Now, Justice Alito was so stung by this loss here that he then wrote Erwin and Mike that people shouldn’t pay attention to what the majority is writing here because it’s just dicta, and these cases will not be controlled in any substantive way by this opinion.
But I think you have to face it that Justice Kagan did have a majority for what she wrote, and that clearly when these cases come back, the framework that probably will be overriding is how she said that, the First Amendment implications are here when states try to control how platforms filter messages and videos posted by their users.
ERWIN CHEMERINSKY: I’m teaching first Amendment law in the coming semester. I was to think about how to teach this. The two things that I would draw is, one as Joan said that even though the court doesn’t decide the constitutionality of laws, Justice Kagan’s opinion seems to leave no doubt about it. She says private social media companies get to make choices about what’s going to be on their platform in the same way that newspapers get to make choices.
And the second thing that seems striking is Justice Alito’s dissent that Joan was talking. I guess it’s a concurring in the judgment formally. It says, we should not use the same principles under the First Amendment for social media that have been followed for the last 200 years. It’s in-kind different. Are those the right things to highlight for students?
MICHAEL DORF: I think that’s right. I spend a few days in the First Amendment in my basic constitutional law class. But if I were to teach this as a case, I think, I’d want to highlight how it’s not clear what the liberal and conservative positions are in this case. If you go back to the late 19th and early 20th centuries, progressives were often very concerned, not only about the power of government, but about the power of concentrated wealth and large corporations over individuals’ lives.
You can identify this tradition with Louis Brandeis. They were worried that, in the private sector, people can have their rights curtailed, not constitutional rights, but the substance of their rights curtailed in the same way that the government can. And I think Justice Alito is on to something when he thinks of a social media platform as different from a newspaper editor.
The reason Justice Kagan can say that editorial discretion is speech is because the paradigm we’re thinking of is the New York Times or The Washington Post deciding what letters to the editor to publish, which they’ve got a forum for speech within their bigger publication, but they’re curating things to a much, much greater extent than social media platforms do.
And if anybody wants sort of a dramatic illustration of how the ideological stakes are not at all clear, just think about the fact that we’re recording this on Tuesday. Just yesterday, Elon Musk, who single-handedly owns the platform formerly known as Twitter, now as X, spent two hours with him giving a fawning interview to Donald Trump using his own platform.
Now, he has offered to allow Kamala Harris to come on to the platform for an interview as well. But given what he’s said substantively, it’s clear he’s staking out an ideological position. So you’ve got this entity that both markets itself as a platform for users to speak their mind, but is also having a very, very strong view of its own in a way that I think is somewhat inconsistent.
So I’m not saying that I think Justice Alito is correct or that the Fifth Circuit is correct, I’m just saying that there are reasons other than you’re a right wing ideologue to think that there’s a public interest in ensuring free and equal access to social media.
ERWIN CHEMERINSKY: You were putting your finger on the importance of ideology or that it’s not about ideology. Let me talk about one final case, and that’s the case of the City of Grants Pass versus Johnson. And the reason I mentioned after what you just said is, is there a way of understanding this case that’s not ideological? It involves a city in Southern Oregon that is an unhoused population, much greater than the number of shelter beds.
The Ninth Circuit, following an earlier precedent, Martin versus City of Boise, said that it violates the Eighth Amendment for a city to make sleeping in public a crime if there aren’t adequate shelter beds. The Ninth Circuit said, everyone has to sleep and you can’t punish the status of being homeless without violating the Eighth Amendment. The Supreme Court 6 to 3 reverses the Ninth Circuit. Justice Gorsuch writes the majority opinion. Justice Sotomayor writes a blistering dissent, joined by Justice Kagan and Jackson. Is this just an ideological decision? Mike I can come back to you, given what you were just saying.
MICHAEL DORF: Partly, yes. But note that here the ideology on the Supreme Court in this instance doesn’t exactly track what you find in the wider public. So it’s significant that as soon as the court decides this case, or takes a month and a half or whatever it is, Gavin Newsom is really pushing it. He’s going to use this authority to make unhoused people disappear somehow.
And so it’s not as though giving shelter to the unhoused is a popular item for elected Democrats either. To my mind, what this case underscores is how different the Roberts court is from earlier courts. And I have in mind the court that decided Robinson against California, which the court in this case gives the back of its hand.
There the court said that you can’t make it a crime to be addicted to drugs. If there’s nothing you can do about your condition because you’re already addicted, that can’t be criminal. That’s that principle seems to apply to sleeping on the street if there’s no place for you to go. And the court doesn’t buy it. But I think it’s significant that Robinson was not a unanimous opinion, but it did garner votes from conservatives. It was written by Potter Stewart, who was fairly what we would now call, I think, a moderate conservative.
Justice Harlan concurs in the result. And so I think that there was an earlier time when the court saw its role as protecting the most vulnerable, who are not going to win in the political process. And to my mind, the ideological split you see here shows that judicial conservatives no longer think of that as part of their mission.
ERWIN CHEMERINSKY: That’s really profound. Joan, I would ask you about same thing I asked Mike, but also about what it says about Justice Sotomayor’s role.
JOAN BISKUPIC: You played right into what I was thinking about. I’ve been going through a lot of her opinions recently, and I was looking at her dissent in this case, Erwin, and I thought, if this isn’t a quintessential justice Sotomayor dissent, especially getting to exactly what Mike just said in that phrase, protecting the most vulnerable among us. That is something that has she has so identified herself as.
When she first came on the court, she was the one who would be dissenting from denial of cases brought by criminal defendants. She was someone who tended to always want to be a voice for the disenfranchised, the poor, the imprisoned. And now, she’s the most senior Justice on the liberal side, so she’s certainly broadened her portfolio and she can keep the biggest cases, the biggest dissent, so to speak, for example, the Trump Immunity case. And she was the one who wrote the dissent in the Jarkesy case
She passed on Loper Bright to Justice Kagan, but she kept Jarkesy for herself as she did in this case, and I think this case just really shows her core emphases. She opens that dissent by saying, sleep is a biological necessity, not a crime. For some people, sleeping outside is their only option. And she says, for people with no access to shelter, that punishes them for being homeless, that’s unconscionable, and that’s unconstitutional.
During the oral arguments, I should say, the room was really intense along these ideological lines. Chief Justice John Roberts isn’t as active from the bench, because he’s chief, and he’s got like traffic cop. He’s got to do many things. But in this case, he seemed perturbed, almost angry at the arguments that were being put forward by the challengers to the Grants Pass law.
And the liberal justices were just taking up what you would– really, the banner that’s so closely hews to the left. The people at issue here are the people who really have nowhere else to go. There is nowhere else to go. They’re out of luck in so many ways, and you’re just going to reinforce with this kind of ruling, and that’s where you have it. And I think that’s probably why justice Sotomayor kept this one for herself, as she did many of the other major dissents this term.
ERWIN CHEMERINSKY: We’re just about out of time. I wanted to touch on one more topic, again, that both of you mentioned at the beginning, and that’s the issue of ethics. It was during this term in November of 2023 that the court promulgated its first code of ethics. Mike, as you pointed out, there were ethical issues concerning Justice Alito this term. There have been additional revelations with regard to Justice Thomas. I’d be interested in what your perception is from each of you of internally what is the ethics issue meant within the court, and externally what’s it meant. Joan, if I could start with you, and then Mike, and then alas, we’ll be out of time.
JOAN BISKUPIC: I do think it hovered over the justices this whole term. Justice Thomas brought it up when he was traveling. He went down to the 11th Circuit, and he talked about what he perceives as this nastiness. I used to think that this didn’t really get to him because he’s obviously been subject to a lot of criticism since day one in 1991 with his confirmation hearings, and I thought he had just sort of gotten into the habit of looking beyond it and trying to do what he does, decide cases, but clearly, it’s gotten to him.
And I think Justice Alito is now in a whole other category because even though he would often be criticized for his rulings, he didn’t face as much of the criticism for his extracurricular behavior. And this time around, that really changed, especially with the inverted flags that were flown at his home here in suburban Washington, but then also another flag that was flown down at his vacation home on the Jersey Shore.
And he even had to take that step of writing to members of Congress about how his wife had hoisted those flags, hoisted the flag in their home near Washington, in suburban Virginia as a result of a nasty spat with a neighbor, and so it was just it got very personal. His day-to-day at the court became much more about these off bench controversies rather than what he was doing on the bench. And I do think that the fact that he lost cases, he overplayed his hand, which he tends to do, but he usually has people joining him, it was just not a very good term for him in terms of his personal goals.
Obviously, his conservatism was really answered in the Trump case and in the administrative state cases, so it’s not that he was losing across the board, but I did feel that the ethics issues had dogged him, and played a role in his overall bad term.
ERWIN CHEMERINSKY: Mike.
MICHAEL DORF: So I don’t have the same kind of access to internal sources at the court that Joan does. But my sense is that they– and when I say they I mean virtually every member of the court at this point, regard the ethics investigations, and revelations, and calls for a stricter code, one with an enforcement mechanism, with a few exceptions, that they regard it primarily as an irritant.
Partially as an affront. How dare you question my ethics? That’s the sense I get from Justices Thomas and Alito, and mostly as a public relations problem, and that they are not seriously committed to examining whether they need to have a stricter code with a real enforcement mechanism because they believe in their own integrity.
And I think that is a function of their sort of insulation. It’s of a piece with their refusal to allow cameras in the courtroom. There’s a kind of how dare you quality to it, which I think is not befitting the institution, but I understand that that is sort of characteristic, and it tends to be bipartisan, although not exactly on every issue.
ERWIN CHEMERINSKY: My enormous thanks to Joan Biskupic, CNN Chief Supreme Court Analyst, and Michael Dorf, the Robert Stephens Professor of Law at Cornell Law School. I hope you enjoyed this episode of More Just. Be sure to subscribe wherever you get your podcasts. If you have a question about the law or a topic you’d like us to cover, please send an email to morejust, all one word, @berkeley.edu. Please share your thoughts with us. Until next time, I’m Berkeley Law Dean, Erwin Chemerinsky.
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