SCOTUS Wrap-Up 2023

>> Troy Senik: Yeah, I can still see, John, this is a problem.

>> John Yoo: You want media off?

>> Troy Senik: Yeah, and put some pants on. Welcome back to the Law Talk podcast from the Hoover Institution. Coming to you, as we always do, in the Faculty Lounge at the Epstein and Yoo School of Law, now a top 20 school in the rankings.

Those are the cat fancy rankings, to be clear. I'm your host, Troy Senik, former White House speechwriter, co-founder of Kite & Key Media, and repeated Grammy nominee in the autoharp category. And I am joined, as always, by the Rocky and Apollo of the conservative legal movement. They are Richard Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A Tisch Professor of Law at NYU, and senior lecturer at the University of Chicago.

And John Yoo, visiting fellow at the Hoover Institution, the Emmanuel S Heller Professor of Law at the University of California, Berkeley, and former deputy assistant attorney general in the Bush administration. Gentlemen, good to be back with you. So much has happened since we last convened that there is no way we're going to get through all of it in the time that we've got allotted.

So with your indulgence, I'm just going to jump straight in with the rulings we've just received here in the last couple of days. But before we even get to the merits, can we start with this? I realized this morning as I was preparing for this, I've had this question percolating for you guys since probably as long as we've been doing this.

And John, I'll direct it, at least initially, to you, just because you've been a clerk at the Supreme Court. Famously, this time of year, towards the end of June, in the closing days of the term, we tend to get these biggest, most controversial decisions. And that strikes me as a weirdly Hollywood thing to do.

I mean, it's great for the press, because it gives you storylines that are building into a crescendo. But it's actually not immediately clear to me why it's good for the court. Because you leave most people remembering a term by its most controversial decision. So I'm just curious, why is this the practice?

 

>> John Yoo: Right, it's because there are students who can't keep to deadlines, that's why. I bet you were like this as a student. That deadline's 5 PM on Thursday, and they hand it in at noon the next day on Friday.

>> John Yoo: Yeah, that is the problem, they have no strict deadlines.

And so, what happens is they trade drafts back and forth, dissents and concurrences and majority opinions. And they all want to have the last word, cuz they're all pretty smart. And they're used to having the last word, cuz they're justices of the Supreme Court. And so the opinions only go out when all parties are satisfied that they got their say.

And so, not surprisingly, the most important cases, like today's case on Biden and the student loan cancellation plan, or yesterday with the Harvard affirmative action. There are long, long opinions because no one wanted to finish until they absolutely had to. And let me say, the real deadline is when they all wanna go on vacation, so for the summer.

So they could have kept going next week or the week after.

>> John Yoo: That's maybe the only power the chief justice really has is to sort of cajole the other justices, say, come on, hurry up, finish up, let's get this done. So today they finally finished, cuz none of them wanted to work over the July 4th holiday weekend.

And rightly so, I think there's a kind of a tradition that the justices have to decompress during the summer. And so June 30th has become a genuine deadline. But I think, in effect, it's not just a question of procrastination and draft exchange. Some of these cases came very early in the term, and they hold them off to the end.

The opinions may be done, but I think there's a sense on the part of the Supreme Court and that somehow or other there's gonna be too much attention fastened on the court while it's in the middle of doing its business. If you put the blockbuster cases out early, that means that there's going to be distracted from working on the less significant cases.

And sort of doing it in the other way with the Hollywood finish, as you mentioned, is a way to make sure that the other cases can be dealt with and handled in a more expeditious and less dramatic fashion. The other thing I would say about this is that if you looked at the earlier cases, you would not see any kind of systematic aligns, conservative and liberal, there are a lot of strange bedfellows.

When you come to the three cases that we're gonna talk about today, 6-3 right down the line. The conservatives on Affirmative Action, the conservatives on Biden, the conservatives on free speech and creative expression and so forth were on one side, the liberals were on the other. The irony is, in many cases, like on the 303 Creative, it's the liberals who give an impossibly narrow definition of what counts as free speech and the conservative Republicans who go in the opposite direction.

This is a real change from what would happen 60 years ago. And so what we're seeing here is not only a sharpening of the liberal and conservative split. But there's also a lot of shift in terms of the positions that are palatable to the left and palatable to the right.

Which is why this term is intellectually both challenging on the one hand and in many cases, bizarre on the other.

>> Troy Senik: Okay, so let's get to some of these marquee cases. I'll start you with the affirmative action one that came out yesterday. This is, as Richard mentioned, six to three decision, all the conservatives on one side, all the liberals on the other.

Opinion by Chief Justice Roberts, who conservatives tend to think of as wobbly. But remember, this is Mr the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. And, John, I'll start with you here, since you were, I believe, the last Asian guy to get into Harvard.

 

>> Troy Senik: Roberts is unsparing about these college admissions programs that take race into account, essentially saying in this opinion, these are inscrutable. We can't subject any of these to strict scrutiny because they're too incoherent to analyze. You say diversity is a compelling interest. We don't know how to measure that.

You've got these racial categories that don't make any sense. There's no distinction between different groups of Hispanics. There's no distinction between South Asians and East Asians. People who are of Middle Eastern descent get left out of the formula entirely. And then you say, no one is harmed by this, but college admissions is zero sum.

So, of course, people are harmed by this. And what jumped out at me because we've all had our fun in the past with Justice O'Connor back in the day saying, well, in 25 years, you won't need this. Roberts takes that very seriously. He says, look, these things have to end at some point, and there is nothing here that makes us think they're ever going to.

What do you make of this fusillade of criticisms of the majority opinion? I think it's possible to understand the opinion with two basic themes here, one which ties in with the long term direction of the court and one which is really the Roberts' court. So the long term direction of the court and the Constitution, according to the majority, is that our constitution is colorblind.

That is the simple rule that takes us from the Declaration of Independence, through the Civil War, through Reconstructions, through the Civil Rights movement in Brown v Board of Education. And that this exception to allow colleges and universities to cheat on race is just as bad as the other times that the court has allowed exceptions to this basic principle, like in Dred Scott, like in Plessy v Ferguson.

And so the court, in a way, is saying we're gonna just restore the intellectual coherence of colorblindness, no more exceptions. And the chief justice traces that back decades and decades, hundreds of years back.

>> John Yoo: That's the long term way to understand it. In the short term, and this goes more directly to your point, Troy, the short term, and this connects with a lot of other things the court's been doing.

The court is suspicious, I mean, not just neutral. They are suspicious of experts. They feel, I think, that they were duped by university presidents and college professors who made all these claims the last time this issue came up in Fisher or before that in Grutter, who said, as you said, Tory, trust us.

Racial diversity means we'll have better classrooms. Racial diversity means we'll have better research. Universities need racial diversity. And Chief Justice Roberts says there is no proof that that is true. And that goes to your point about the length of time. He says, even if we're willing to allow this exception to colorblindness, show us the proof.

You've had over 20 years now to find proof, and there isn't any. I'm really struck by the tone of the majority. And he actually says what the university presidents have said in the past is, trust us. And he says, no longer, we're not gonna trust you. This is part, I think, of the majority of the Robert court's suspicion of bureaucrats and deference to federal agencies.

I think they are self confident in a way that they can judge whether racial diversity actually has any educational benefits, and they say there are none. In fact, I think they almost accuse colleges and universities of being cynical, that they need to have a certain level of minority representation almost for political reasons, to protect themselves from criticism rather than to really enhance the learning experience and the research experience.

Now, this is just an absolutely nightmarish problem. Let me both agree and disagree with John. I'm gonna start with the areas of agreement, because we don't come at it quite the same way. But one of the things that was really terrible was the presentation that Harvard made with respect to the evidence.

UNC. It was somewhat less conspicuous. But at the same point, it would have been one thing for them to argue, in my view, that, yes, we have engaged in this kind of diversity based on race because we think given the past history of race in the United States, it's special compared to every other category we want to talk about.

But they talked out of both sides of their mouths. They said we didn't do any kind of discrimination at all, which was just an absolute fabrication. And so what happens is they're basically caught in a lie. Their testimony was pretty shameless from start to finish, and their rationales were nuts.

So, for example, what they constantly said is, we're doing a holistic look at these students. A holistic look means you look at boards and grades, and then you supplement that with lots of other things. They mean by holistic is you don't look at boards and grades, you just look at the other stuff and we're not gonna tell you what that other stuff is or how it turns out to matter.

And so, you know, the Columbia college, when they decided to get rid of the mandatory requirement for the use of boards, said, we're holistic. It turns out that if you just took the top tier people with perfect boards and perfect grades, you probably have four times the number of students that you could admit, and you could pick all those other characteristics in whatever way you want.

But the thought that somewhere the holistic requires to abandon the single two strongest predictors of academic success is essentially just an absolutely silly way of putting this thing. It was done in the first circuit, it's been done by universities. And when you start looking at this stuff, you say, wait a second, these people are not acting in good faith.

They're making perfectly silly arguments. I think the correct argument about diversity, I'm going tonna make a very different argument, is you get out into the workplace today and this goes to Grutter. And even if you have highly hierarchical organizations, so that all your doctors are from privileged classes on the one hand, and all your nurses aides come from minority groups on the other, this is not true.

But assume it was. Diversity in its best sense means you have to learn to work with people as a part of a common team, even when you have fundamental differences in your background and orientation, and even if you disagree with one another politically. That's why business in the military has to stress that form of cohesion.

But when we talk about diversity in the other way is we say, I don't care whether you can add or subtract, we'll make you a PhD in mathematics. That's a very different kind of sense, and it gets it wrong. The second thing I think that was just very bad about this, was the way in which the dissent kept on ensuing that the legacy of slavery is still with us today.

This is a history which simply stops at 18, starts at 1870, stops until 2010, picks it up again, and ignores everything that goes on in the middle. And it turns out one of the sad things is if you're trying to figure out what the relative decline of black success is in the United States, you have to treat that as a consequence, in many cases of progressive initiatives which were put together in their name, you keep people out of jobs with various kinds of affirmative action programs.

You degrade public education in order to deal with unions on more favorable terms. You put all sorts of barriers in the way of people moving themselves upward. This is not what happened in 1870. That matters. It's what's happening when you start doing these things today. And there is not a word of recognition of what modern policies have done this.

There's not a word of recognition that if you don't have stable families, if you can't stop criminality from taking place, you're never gonna get educational success. They don't take into account people like Eva Moskowitz, who's always said, I can teach any kid in any classroom if they want to work.

It doesn't matter who's sitting next to them. Don't demean minority students by saying they have to be in an integrated environment. All of that is nuts. Now what's wrong? The crisis is gonna be every university that I know puts forward exactly what John deplores. Diversity helps, and they don't mean diversity intellectually cuz many of these students are weaker.

What happens is we're gonna have a crisis of legitimacy. The public at large is behind the Supreme Court. This is not abortion. The universities are pretty much an open rebellion. And so the question is gonna be, how are you going to be able to implement this situation when you have not persuaded anybody?

You look at all the presidents of all the major universities, they all issue the same statement. That is done. That's what's gonna be so terrible, trying to get this thing through. And the system is too rigid. I do not even think it's required by the constitution. I'll put one simple distinction forward.

Colorblind works indispensably when you're trying to deal with the enforcement of the criminal law. But just as the First Amendment gets wobbly when you're trying to figure out what it does with government speech and government employment. The equal protection clause gets wobbly when you're trying to figure out how to distribute benefits of one form or another.

You can't let it go crazy the way it's done. But I think that chief justice is a bit too tough on this. And what's gonna happen is we're gonna have endless quarrels here, and they're not gonna be like the abortion quarrels that are gonna take place in the legislature.

These are going to be basically situations in which every university is going to be meeting full time. I think of the situation at NYU. We have a new president. Welcome, President Mills. You are now going to have to face the single greatest challenge, and you've been in office for a grand total of 24 hours.

I'm starting tomorrow. So I don't agree with John about Roberts being correct. I do agree with the critique of everything that's been done to defend affirmative action in its current form. And so the sad feature to me is are they going to go too far in stopping it or too far in doing it?

They clearly have gone too far in doing it and now what's gonna happen is we'll swing the pendulum to the other side, but we don't know what the reaction is going to be and I fear it will not be a happy one. Before we move on to the next case.

Troy, I disagree with several of the points Richard made. I mean, I think we agree that the court has severe problem, made many mistakes with race, but I don't think that we should deviate from this colorblindness principle. I mean, Richard, you wrote a book that influenced me very much when I was young called simple rules for a complex world.

And this is such a perfect example. Simple rule, color blindness, complex world. And what I hate to say, because Richard and I are both university professors, what Richard is saying is a form of special pleading for universities because he's a university professor, the military will say the same thing.

We have special reasons why we really need to do this. There's gonna be a crisis of legitimacy if we don't do this. CEO's are going to say the same thing. Every part of human life is gonna claim that they have some special reason to deviate from color blindness.

I don't think universities should get a pass when we're not giving it to anybody else. The second point I would make is it's not obvious to me that we should be allowed to use race in the giving out of benefits, but not in punishments. So first of all, and I think this is an important point in the majority opinion, is the chief justice says admissions to college are a zero sum game.

Now, he doesn't say this, but he could have said that's cuz universities don't expand their class sizes. I mean, the population has probably doubled since Baccy, but Harvard hasn't increased the size of its freshman class, I'm sure.

>> Richard A. Epstein: Very little.

>> John Yoo: But it's not just that you want to give blacks and Hispanics who apply to Harvard a benefit.

It's at, the chief justice says it is at the price of Asians and whites. And also, as Gorsuch shows, a lot of other ethnicities that just don't fit into the weird boxes that the federal government and Harvard use to classify people. But so it's not just, first of all, I would not agree that the government could select different ethnic groups and give them benefits without giving them to others.

And that would be constitutional. But even if that were true, that's not the case with admissions, because here you're actually harming Asians, whites, Jews. This is what Harvard did to Jews in the 20s and 30s and anyone else who's just not black or Hispanic.

>> Richard A. Epstein: John, to back your point up, the percentage of Jews at Harvard today is probably down by about two-thirds because of the affirmative action program.

But let me re articulate this was rules about how governments ought to regulate people. It was not a book about how businesses should run themselves. And so the basic argument against the anti-discrimination laws is internal to the firm. In a competitive market, they could have whatever complicated rules they want.

There's always gonna be complexity. You want to get it in the right place. And so what's going to happen here? It's not special pleading. Every organization is going to try to do this because some people say race is different because of the historical background. It's not as different as one thinks, because there are people who've been discriminated on other ground.

And so what happens is the theory of decentralization is if you are bring among, you don't have to do the same thing as NYU, and it's good that we let them go their separate ways on this, within limits. So that's why I treated it more as a management decision rather than as a legal decision.

But what's happened is the middle ground has just disappeared. I ran affirmative action programs for the four months and nine days that I was a dean, and I managed to keep the lid on all of this stuff. The problem today is the people who are in favor of affirmative action don't see any trade-offs.

My guilt ridden nature was I saw trade offs at every point. And so I proceeded in a different fashion. And what's going to happen is, I fear either it's going to go John's way, which I think is what's happening, at least in the short run, or it will go the other crazy way in which we can do whatever we want.

And the great tragedy is management requires you make incremental decisions based on localized information. So the other half of simple rules for a complex world was the Hayekian notion that decentralized knowledge works. And that's the position that I'm trying to defend. And you know what's happened? I've been blown out of the water.

And so I sit here and I'm genuinely worried about, I'm gonna go back to work on July 5th, and I don't know what the state of mind is gonna be at NYU or at Stanford or Chicago, everywhere else. What's happened, I'll just put it in the simplest way, is universities are probably on an honest preference basis.

80% of the faculties are strong devotees of affirmative action. Many of the others are more or less indifferent. Some are actually opposed. You go to the public, John's going to win that debate every time. So you get 75% of the public that goes the other way. And so that means there are gonna be no legislative relief and no constitutional change.

And so there's-

>> John Yoo: Richard, there's gonna be massive resistance by our friends in the university.

>> Richard A. Epstein: Remember that phrase, from the 19-

>> John Yoo: Yeah, there's also massive resistance by the south after Brown. They're gonna do the same things. Ironically, that segregationists in the south did to try to defeat the Supreme Court.

And it took 15 years for desegregation to fully occur. But our colleagues need to learn that they don't have the answers to everything, and they don't have the hubris to think that they can override core constitutional principles because they think they know better. That's what the court, I think that's the second order point the court's making, is that university administrators don't deserve deference anymore because they cannot be trusted.

They've been lying and cheating about race this whole time. And the court, I'm really surprised, at the end of the opinion, the court basically says we are gonna be vigilante to the point that if you even try to cheat using college admission essays, I mean, they got into the weeds here.

We're going to reverse you on that, too, if you try to give everyone a plus factor.

>> Richard A. Epstein: There's no question, John, that you are right, that they've cheated. The problem about this, I ran affirmative action programs. I'm not gonna apologize for it. I knew what I was doing.

I thought, and I still think that I kind of made the right kind of choices. But what happens is the principle of management discretion is something that has to be read into account when you're looking at the 14th Amendment, they're much too rigid to assume that regulation and grants are governed by the same principles when they never have been.

So I wrote about this in 2002 in a Michigan Law review article saying, look, I've been around this bend a couple of times, and if you know how to manage it, you could prevent this thing from going. The reason why I agree with you, regrettably, on so many things is I do not trust very many administrators to have even a sense of what the trade offs are, how to run them.

And so what's happened is the middle is emptied out. And I'm trying to recreate it, then what's happening is, John is gonna make it even harder. I want to have people running universities who know the use and the limits on affirmative action programs. I don't see those people.

I mean, you just look how people are selected as presidents of universities today, and essentially you ask this kind of question, how many people who are centrist Republicans or conservative Democrats can become a university president today? And what's the answer, John? Very few. Then you look down even lower.

And then when you get to the ranks of the intermediate deans, particularly those who specialize in DEi, it turns out they're hopeless in what's going on. There's many deans of particular faculties, I think, are very, very able, but the institutional framework is determined by the central administration, and they're doing the very things that John says would be forbidden.

And I agree with him completely on that. So I regard myself as a kind of an idle visionary hoping to create a third world. But I basically, when I look at the landscape now, I think I'm gonna have to run for cover. I'm sad about all of this.

I'm deeply disappointed. I do not think that the people who made these decisions were aware of how it all runs. The tragedy is, when I looked at the dissent, I would have hoped that Elena Kagan, who actually ran a major law school and so forth, quite successfully, might have sort of indicated why it was that she was in favor of how she ran it.

I didn't see that. And what you do is you simply get the, and this is just indefensible. The Sonia Sotomayor position is colorblind, that's Jim Crow 2.0. That's the thing that just drives me batty. And it's really sad. I mean, truly sad. So, John, I'm going to consider the fact that you win by a tko in this particular debate.

But I'm asking-

>> John Yoo: Let the record show. Let the record show.

>> Richard A. Epstein: But I'm asking-

>> John Yoo: Richard is giving up, finally.

>> Richard A. Epstein: I'm asking for a rematch in five years.

>> John Yoo: You got it. You got it.

>> Troy Senik: Before we move on to the next case, can I just ask you guys in brief?

There is an interesting wrinkle here. It's just a footnote in the majority opinion, but it ends up being a flashpoint in the dissent, which is that the majority here is careful to say that this prohibition on considering race in admissions doesn't extend to the service academies. Because they have what it refers to as potentially distinct interests.

And you see the dissent throw this right back at the majority saying, so, okay, I guess the 14th Amendment doesn't apply at military academies. Go ahead, Richard.

>> Richard A. Epstein: This is insane. The single most important place to apply these principles today, without question, are the service academies. I've been too close involved with what is going on there, which is just for the most part, shameless.

People who have had military histories for generations are telling their children not to go in because it's a cesspool in terms of the bigotry and the CEI stuff or the DSC stuff, whatever it's called. The diversity stuff has absolutely overrun that place and made it impossible to have the military a, be effective and b, keep itself out of politics.

It turns out they have to replace Lloyd Austin and everybody who works with him. And for the court to say, we'll let the military do this, is exactly backwards. We will not be able to maintain a military and officer corps if we practice this kind of intellectual nonsense at the academy and drive out countless number of people on the grounds that they have white privilege.

At which they do not grovel and accept when they are admitted to the academy. When asked publicly to explain what they manage to do to get into this place, I think that that is just the wrong answer on that. I'm really effective. I'm much closer to John on the military academies than on anything else.

 

>> John Yoo: And this one, I think, actually the dissent is, and liberals in the media who are echoing the dissent are just overreading this footnote in the majority opinion. It just says, this doesn't apply to military academies cuz nobody sued them. It doesn't say-

>> Richard A. Epstein: That's a different argument.

 

>> John Yoo: But yeah, no, no, it doesn't say that the military academies are actually allowed to. In fact, I will predict with 100% certainty that the military academies will be sued in the next year to compel them to follow SFFA.

>> Richard A. Epstein: They've already been sued, they've already been sued.

 

>> John Yoo: If they're going to get sued again until they change their policy. So this is how I'd see it, for the military academies, first of all, I think they should just change their policies now rather than fight in the courts. But Biden's gonna fight, I'm sure. But they're going to have to make the claim.

Essentially, we're so different that we could have racial quotas and officer promotions. We could have racial quotas on who we send onto the battlefield and who we keep in the rear. I mean, that's the kind of argument they would have to make. I don't think the military wants to make an argument that's so rejected by the great majority of american people.

One thing I just wanted to point out about what Richard said is colorblindness is extraordinarily popular in the country. Two thirds of Americans agree with the Supreme Court here. This is just a view held by the small intellectual elite that believes that they should be able to use race to engineer society.

I don't think the military and its officers should want to be in the one third losing position with the american people. They're already having enough trouble recruiting people. They cant even meet their recruitment targets. If they keep a position that two-thirds of American people don't agree with, do they think they're gonna be able to recruit anybody to enlist in the military?

 

>> Richard A. Epstein: Well, this is a serious problem. I mean, I've actually worked on military cases, I'm suing Joe Biden for disrupting the military advisory panels on what I regard as thoroughly specious ground. And then you start looking at the way in which they go without this independent check on themselves, and they tend to go haywire.

So I think that these people are terrible. There was a recent letter which I read, signed by 160 admirals in general, saying, look, the only way the military is to keep itself out of politics so as to be an honest agent of all presidents. And what you're doing with Dei is making them political from day one.

So I could give you one story. I can't verify it, but I'm pretty sure it's true. There's an officer who's black and there's several white guys, and she says to them, you're white boy number one. You're white boy number two, you're white boy number three, because I can't distinguish between you.

And then one of the parents objects, probably a military parent, and they said, well, we could change your children's assignment to another class, which means that other people are gonna be subject to this kind of victimization. There was not the slightest sense that something had to be done to reign in that behavior.

So this is not just affirmative action on admissions. This is active and open bigotry, the operation of the way these things work. And that's why the Wall Street Journal today has this lead story talking about the failure of enrollment. The thing we all know is that advertisements never work against word of mouth, which cuts in the opposite way.

And so this has really happened. This is the single most important thing I'm concerned about is making sure it's much more important to get rid of this kind of stuff in the military than it is in the university. It's more virulent on the one hand, and it's also more dangerous on the other.

 

>> Troy Senik: So I'm going to move us to another ruling, one we just got today. And I push it to second only because I don't think it was deeply shocking to a lot of people. But you have the court ruling again, 6-3, that the Biden administration student loan forgiveness program doesn't pass muster.

The majority essentially saying, look, the statute here, it allows the executive branch to issue waivers. It allows you to make modifications, but this is not a waiver. This is not a modification. This is root and branch, a new policy which, by the way, conveniently allows you to do something that you couldn't get through Congress.

So, John, I'll start with you. I've always thought that there were two kinds of people on the right when you started seeing that conservatives were going to get a controlling majority on the court, not mutually exclusive, but definitely with differing emphases. There was one kind that was excited about it because they thought, we're finally gonna get our shot at overturning Roe.

And there was another kind that was excited because they thought that they could get to start performing amputations on the administrative state. Turns out it's both, of course. But how big a deal is this in terms of hemming in presidential ambitions to unilaterally make domestic policy?

>> John Yoo: So, first, the interesting thing is that the constitutional principles seem to be unquestioned, which is that the president doesn't decide how to spend money, that it's up to Congress to control the power of the purse.

It's almost so unquestioned that the majority doesn't even spend much time on it. The only real serious issue is how far. Could you read this 2003 law that allowed the education department to, at best, suspend or modify things like loan obligations in the event of a national emergency.

Could you read that so far as to be actual cancellation? And so the reason why conservatives should still be excited and pleased, not just in the outcome, but the doctrine is that we've seen here again, the reappearance of what's called the major questions doctrine.

>> Richard A. Epstein: Yes, good feedback.

 

>> John Yoo: Yeah, this was already used to block other, I think, Biden overextensions of executive power. With regard to COVID, we might rememeber, this is the ground on which the court struck down the vaccine mandate, which It struck down the effort by Biden to block all evictions in the country because of COVID.

And so it reappears again in the court, says we don't think Congress, in this statute, passed in 2003 during the Iraq and Afghanistan wars, which really obviously talked about suspending loan payments for people sent to the war zones or people called up to duty, Congress didn't intend to give the executive branch the right to spend somewhere between $400 to $900 billion.

Anything that important, you would expect Congress to say so. So in that respect, it's kind of, I wouldn't say run of the mill, but it's a standard application of this new doctrine that really started appearing three or four years ago. But it's part of this broader project by the Roberts court that conservatives been supporting for many years now to really hem in the powers of the administrative state and the president, when it comes to domestic affairs.

 

>> Richard A. Epstein: John is 100% right, see?

>> John Yoo: Wow, I'm on a streak.

>> John Yoo: I'm on a streak here, it's two in a row.

>> Richard A. Epstein: You win one by a TKO, and now it turns out we're tag team wrestlers and we take on the pathetic eyes on the other side.

But look, let me put it in-

>> John Yoo: It's so much better to be when Epstein and you are on the same side.

>> Richard A. Epstein: But John, you hit it correctly. It turns out that the anti deference crowd has to deal with two things. It has to deal with administrative regulations that go through this elaborate notice and comment problem, and it also has to deal with executive orders.

And the abuses in both areas are rampant. As I've mentioned to you, Obama, Biden just dumps certain people on advisory boards that are supposed to be independent, because they differ with his values and stuff. But it goes beyond that. And so here's just a couple of points to make.

First, on this particular stuff, the waiver and so forth, this is a private law series of doctrine. And what everybody means on this is that you may waive a condition precedent. So if you're late in filing a particular fee, we can waive that kind of situation, waive documentation and so forth.

When we mean modify, we mean we could take the payments which are now for one year, and we could stretch them out with additional interest to do four years. And so it turns out there's a perfectly sensible way to do this. But if you start looking on this, when they start talking about the condition of individual persons, it's quite clear that they're supposed to do the whole man analysis in figuring out the extent to which these things are needed in the individual case.

When you do this for 400,000 people blind, you're not looking at any circumstances or anything else. So it's not just a question, as John mentioned, of looking at the words modify a waiver. It's looking at the overall pattern of the statute as to how it is that you require individual cases to do.

And also, if you're trying to talk about what counts as a crisis. If you sort of have a hurricane on the one hand and a war on the other hand, a COVID situation, which has largely run its course, is not gonna be of the same class, using them generous and so forth.

I read the memo that was prepared by Chris Schroeder, a very distinguished former professor at Duke. And it was just godawful terrible in terms of the way in which it sort of took these little threads. I'm gonna go even further, John, and I wanna get your opinion for this.

I have come to the reluctant confusion that executive orders that purport to extend policies not enacted by Congress beyond the current term of the sitting president are per se illegal. Which means, in effect, that the president cannot say, even if he could do otherwise, that I want to tell you what my target is for admissions from automobiles in the year 2035 or 2030.

He has the power to do stuff up to 2024. If he wants something of a greater duration, he cannot do it by an executive order on which people are supposed to have to rely or to conform with when the next president can take the whole thing and blow it up.

And so this is, essentially, I think, a way of trying to cabin this stuff in. And I mean, he is so much low laws on this than anybody else. Worse than Trump by far, worse than even Obama by far on this kind of thing. It's as though he's got himself into the frame of mind that if Congress won't do anything, since I'm Joe Biden, I know more than everybody else does.

So a guy who's barely senescent, barely comprehending the world, sort of wants to take dictatorship policies upon his own. So it's not only, I think, that you have the major questions doctrine here, I think what you have to do is to respect this temporal boundary line. Otherwise, we're going to see at the national level and at the state level, constant efforts by people to basically determine the course of the United States without any legislative power in ways that exceed their own current term of office.

Am I wrong about that, John, on my temporal limitation?

>> John Yoo: I actually think that the problem with your rule is that I don't think the court's gonna protect even executive orders issued during the presidency.

>> Richard A. Epstein: I agree with that, too.

>> John Yoo: Biden's executive orders, his major executive orders haven't even last his own presidency.

 

>> Richard A. Epstein: No, I agree with that. I'm just saying, remember, this is a large class of cases, and I would say this order is one that's specific. But there are many, many other orders which are always looking forward to nuclear power generation 2035, eliminating fossil fuels, requiring mandates with respect to the use of electronic stuff in one way or another.

I am trying to say, in the term, you at least have a presumption of possible legitimacy. But if you go beyond it, there's gotta be a per se rule to stop it. So the question is, are I wrong about that? Troy, you could weigh in, too.

>> Troy Senik: I actually, I have a related question for you, Richard, two steps removed from the point you were making a moment ago.

There is a cynical political view of what happened here, that is probably correct, at least in word.

>> Richard A. Epstein: Pass it in there.

>> Troy Senik: Which is that the Biden administration knew that this debt forgiveness was politically popular with an important part of their constituency, upwardly mobile, college educated people.

And that they also knew that they didn't really have this power, that everything they were doing was kabuki. And that at the end of the day, they would get to say, look, we tried to give you this nice stuff, and that retrograde Trump appointed Supreme Court took it away from you.

Now, that is totally intelligible as a matter of raw, amoral politics, but it also entails the executive branch implicitly swearing off any of its responsibilities to uphold the law and thinking, well, fine, the courts will stop us. Which reminds one a bit of Barack Obama on immigration. Is it fair to worry that there is something civically corrosive about the executive branch dealing that way with the law?

 

>> Richard A. Epstein: Yes, I mean, the position you said is they didn't care whether it succeeded or failures. Ultimately, what they wanted to do is to boost their chances in the election. And I think it's a terrible way to run government. Look, I mean, I always say this about Donald Trump.

You want to listen to somebody rant and rave, don't listen to John, you listen to Donald Trump. Okay, then say, tell me the number of actions that Donald Trump has done by executive orders, by prosecutions or administrative rules that have the same kind of illegal qualities, the stuff we see from Joe Biden.

I can't think of a single piece of thing that he did that had that particular quality of sort of gross illegality. Maybe I'm wrong and missing something. But the difference is that when you're dealing with Biden, you get this sober, confident prose, to the extent he can do it, on defending utterly indefensible positions.

With Trump, you get these hysterical statements, which, in fact, reveal nothing underneath them that are particularly terrible. And in fact, his great failure on policy, apart from signing off on the China deal, was his willingness to retain Anthony Fauci and Deborah Birx to run the whole COVID situation.

And Trump, I mean, that's his mistake. But can you, John, tell me a thing that he did which was comparable to these executive orders going beyond time, being consciously illegal, or the sorts of things that you hear with the Steele dossier or the Clapper-Brennan letter? I can't think of anything that that man did which is horrendous as the stuff that was done either by Biden or in his name.

 

>> John Yoo: I think the only thing I can think of with Trump is he did push a lot of the same COVID restrictions. Biden just took him farther. So Trump started the eviction ban.

>> Richard A. Epstein: Well, I said that, I thought he was indefensible on that.

>> John Yoo: Yeah, yeah, and I think-

 

>> Richard A. Epstein: But I don't think that was illegal in the same way that the student loan stuff was. And he was much more tepid on the convictions than Biden. Remember, he did not introduce this thing. He was out of office by January 2021. And the real dangers associated with the COVID vaccine did not become apparent until you got to February or March when you had mass inoculations.

And at the beginning, you weren't quite-

>> John Yoo: No, I mean, I take your point because Trump wanted to reduce the power of the administrative state, whereas, right, the administrative state seems somehow to have come to par with abortion and race, racial preferences, and hardwired into the mindset of liberals.

I don't know why they should want to, but they do. So it's not a surprise that Biden would try to flex the muscles of the administrative state way more than Trump ever did. Trump was trying to cut it back.

>> Troy Senik: I have one other quick question on this before we move off of this case.

John, I'll start with you. Just as Kagan's dissent in this case is interesting and in some ways a real compliment to the conservative legal movement, insofar as she is really trying to criticize this decision on the right's own terms. By which I mean she says that this amounts to judicial activism, that, first of all, in her judgment, this shouldn't have been heard because of problems with standing.

And that, second of all, what the conservatives on the court are doing here isn't textualism, which is a criticism that Justice Barrett took seriously enough to draft a separate concurrence that is sort of in conversation with this. So how persuasive do you find those arguments that Justice Kagan is making?

 

>> Richard A. Epstein: They're terrible.

>> John Yoo: I actually do think that the court has been inconsistent on standing mootness and ripeness, for example, in the Moore versus Harper case, we're gonna talk about next time. I don't see how that was a moot. I think that the court, actually, the chief justice wanted to find it ripe, so that he could issue a decision that he thought would calm the waters in the whole political constitutional law area.

So I actually think that the court is using standing and others to reach cases they wanna reach and to hide from cases they wanna hide from, which is what the left has said for many years. I wish they were more consistent about it. Although ultimately, standing is not, it doesn't come from the original understanding of the constitution.

This is something that really starts to appear after World War II, so.

>> Richard A. Epstein: World War I.

>> John Yoo: Yeah, maybe the conservatives will eventually come up with a different way to decide what cases walk in the door or not. Just one other point about Justice Kagan. I mean, Justice Kagan does, I think, take more seriously the premises of the majority opinions.

If you look at the affirmative action case, it's Justice Jackson, actually, who kinda has a 1619 Project dissent that thinks the whole society is racist and that justifies affirmative action. That's not Kagan's approach. But I think this is interesting. I think at the end of the student loan case, Roberts emphasizes this.

He says, look, we're more reasonable people. We can have differences of opinion. That doesn't mean the institution of the Supreme Court is fundamentally illegitimate. I think there, he's saying, Kagan is in the world of, right, legitimate back and forth, and you just disagree. Whereas some others, like Justice Jackson or Justice Sotomayor, are attacking the institution they're a part of, and their dissents are really outside the bounds.

 

>> Richard A. Epstein: Okay, I'm gonna basically take on one of my hobby horses again. The greatest constitutional disaster on the law of standing took place in the early 1920s with Frothingham and Mellon and Massachusetts v Mellon. The Constitution provision does not use the word standing. It says, the Supreme Court shall have all jurisdiction over cases in law and equity.

Now, equity actually covers something that law doesn't. Name, we diffuse harm suffered by large numbers of individuals. And the correct reading of the Constitution has always been or should have been, if you are ultra vires, the powers that are conferred upon you, either as a congress in the law or the president in interpreting something, we can enjoin that in a court of equity.

Because otherwise, it turns out there's gonna be no remedy whatsoever. And the thought that somehow or other, you could have a benefit distribution of $500 billion and no judicial challenge is crazy. So what they do is they invent things that count as standing. The correct rule has always been, you cannot micromanage one of these agencies.

So if they have the jurisdiction and they wanna give the money here as opposed to there, the only people who could challenge that are the people who don't get the money. You can't say you shut it down.. But what they should do is overrule those two cases and say that standing and equity gets this cleanly.

And at that point, what happens is there are two grounds for deferment, which are listed in the current standing doctrine, but are not. One, it turns out, you can say, I can't take this case cuz I can't figure out how we could get any kind of remedy, which is something.

Or we can say, hey, if you actually look what's going on, anything that was illegal has nothing to do, had no causal relationship with the harm created. Those are standard defenses and courts of equity that existed since the beginning of time. So I think that's the way in which one ought to deal with that.

And then we get rid of this game-playing, because what John says is correct, but it's correct because the Supreme Court doctrine, when it started, was utterly, fatally, and irremediably wrong as a matter of constitutional history. So if you're an originalist, you can't do this. And Justice Scalia never took the opportunity when he had it to go back and figure out what these provisions were about and then struck them down on original expense.

So that's the first point. The second point, when you start reading this particular kind of statute on these things and you're trying to talk about the merits, textualism is always something in which you have to know what the words mean. And the only way in which you could understand these words is to understand the way they're used in other contexts in which these two things are done.

So what you have to do is have understanding about the way in which terms like waiver and modification work in the law of contract. Nothing is more common in the law of contracts to have a very complicated and original provision which are somehow or they're not quite right.

And so during the course of performance, people make all sorts of adjustments. Waiver is one of them. Normally, you need consideration, a bargain to change the rule. But when it comes to waiver, everybody understands that you have to be able to waive with or without consideration. You don't wanna require that, and you do it.

And so it is with modification. There's nobody who says that you could modify it. That means that you could release the whole thing if you want to, on a whim. It would require an enormous showing, of course. And so Justice Kagan, it seems to me, suffers from something that many people on the Supreme Court does, is their background is in public law.

They don't do private stuff. They don't know contract law particularly well. And then what they do is they come up with these kinds of quasi-absurd interpretations based upon an excessive literalism. What happens is textualism is hard, because Because in order to do it right, you have to understand how texts integrate with a larger tradition of commercial practices and business organization.

And if you just try to read words in isolation from that, it never worked in commercial law and it's not gonna work in constitutional law, so her opinion is something of an intellectual shambles.

>> Troy Senik: All right, I'm going to move us to our last case that we're gonna talk about for the day, another 631 also out today, this time written by Justice Gorsuche.

This case out of Colorado. That was the latest in this string of First Amendment free expression cases. In this instance, a christian woman creating custom wedding websites who said, importantly, because the media is already misreporting this, that she was happy to serve gay customers but did not want to be compelled to celebrate marriages she doesn't endorse because she does all this custom work on these websites, including her own artwork.

The court ruling here that the state can't compel her to do that. And John, as I said, we have seen multiple cases like this in recent years. So let me start with what is probably the big question that lay audiences might have. Is this the last one? Is there anything about this ruling that is more definitive than the ones we've seen in the recent past, or are we likely to keep litigating these kinds of issues?

 

>> John Yoo: So first, the court has been dancing around this for many years, and they've taken cases, but they never reached this real decision on the conflict between freedom of speech and really a thought and conscience versus this diversity rationale for forcing people to essentially not discriminate against gays and lesbians and bisexuals.

So, second, I think this is just the beginning because there are all kinds of other, I think, policies where this comes up. And I think part of it, I hate to say it, is because of the aggressiveness, I think, of people who are in favor of diversity here, who want to compel people to act in a way that accepts that ideology.

And for some people, it's not just an ideology, it's religious. There are reasons for not complying, like in the case here with the website designer for weddings. So, take, for example, workplaces. Suppose workplaces say when you speak and write to each other, employees speak and write to each other, you have to use one of six pronouns.

And suppose someone says, I'm a liberalist believer in the Bible, there's only two sexes. I don't believe in the other four or five or however many there are, I don't remember what the federal government says about how many there are now. That could be a case now after, I think this Colorado case.

If Colorado says you have to use x number of pronouns that recognize more than two sexes, I think that's so. I think this actually really the beginning of a lot of litigation that's going to hit on, on this conflict between freedom of speech, freedom of thought, freedom of religion, and this sort of diversity rationale.

But I really do think in part it's because the diversity lobby is being so aggressive in trying to force legitimate dissenters to comply.

>> Richard A. Epstein: Look, I agree with John, but let me go back a little bit to the history. When we had the masterpiece Kate case, what they did is they issued this Delphic and silly kind of ruling saying, go back because they were upset about two things.

They were upset about the fact that there were really very heavy penalties that they were going to lodge and that they said, anybody who refuses to make a wedding case is basically the kind of person who organized the holocaust. And so, the whole case went on excessive punishment and bad motive by the organization.

And Justice Gorsuch doesn't do that, he simply says, they can't do this by way of the regulation. I'm not worried about their mental state, I'm not worried about the transcript that took place. And so I think what's going to happen is you will stop in its tracks any and all efforts by these various human rights so called commissions to force people to publish on their websites those kinds of religious materials that they don't believe in.

Interestingly enough, John and I both talk about this as religious. The Supreme Court does not talk about the religion side of this, although I think it's perfectly applicable, but does it on straight speech ground. There's an interesting kind of sideliness, one of the things that the dissent says as well.

Sometimes people, i.e, people like me, start talking about common carriers. And she said, well, there aren't any common carriers today with exclusive monopoly power, so why are you worrying about this? But the answer is, we are worried about it for the following reason. The way I like to put it is, if you want to get on an airplane, you don't have to submit a job resume.

You want to get a job, you want something particular, it's not just routine services, they're all customized at some level. And that's what she's objecting to. She doesn't want to undo the anti-discrimination laws in their entirety, she wants to have an exemption for the one thing where there's a clash to conference.

This always creates a difficulty with anti discrimination because you now have to have content based discrimination rules on what you can and cannot do and what you cannot say. But at least we know exactly why she does it. We know what our interest is. What's the interest on the other side, one might ask.

Forget about common carries for the moment, when this thing came up in masterpiece, myself and Sarah, other people wrote a brief, and this is what the brief was about. Two points, one is, if, in fact, you had no law protecting same sex, any of these kinds of speech kind of situations on the service side, do you find a very vital industry catering to same sex marriages?

And it turns out you find them everywhere. And then you put it into the following form, is there anybody who has ever been unable to get wedding services because they're gay? And the answer to that question is absolutely not. If you then looked at the particular, which is the second point.

What I did is I put in this brief a map. And the map contained all the stores within, say, 400 yards of this particular establishment where they made wedding cakes, and there were 25 there at one point or another. So the real thing you have to ask is if people can go elsewhere and get every service where they want, why on earth do you want to force somebody who doesn't want to do business with them to do it?

Where either they have to sacrifice their religious and moral scruples, or be subject to all sorts of abuse and intimidation by people who want to kill them. I don't think the balance is at all difficult, I think it's trivial. In fact, my only disagreement with Justice Gorsuch is he was a little bit too doctrinal as far as I was concerned, I would have put all this other stuff in.

This is not to say that anything he said was false, but I hope it will stop that. And then John is clearly right, it's going to start influencing cases like workplace practices and so forth. Are you required to use pronouns of one kind or another? Can somebody force me to describe John as a cisgender male, which I refuse to do, and tell me how to speak and think about these kinds of things?

I think that litigation will come up. But remember, before this case, there was not a single state court which upheld the claims of somebody who did not want to publish a mention against their will. There's not a single one of those cases at one. And now what happens is, is Justice Kagan, I believe, a son of my own can't even remember, it doesn't matter, is all of a sudden, we talk.

Well, this is not speech at all, even though it was expressly. I mean, where are they coming from? What planet?

>> John Yoo: So do mayor. In fact, let me, I had this earmarked for you guys, so let me just offer it up so the audience gets the full context of this.

This is kind of the graph, as it were, of her dissent. The law in question targets conduct, not speech, for regulation, and the act of discrimination has never constituted protected expression under the First Amendment. Our constitution contains no right to refuse service to a disfavored group.

>> Richard A. Epstein: Well, of course, it's not refusing service to a disfavored group because they're giving all sorts of service.

It was an expressive justification narrowly carved out. Now, this is one of the reasons why I've always been so strongly opposed to the anti discrimination law, because even when you get out of the speech context, the coercion element and the incompatibility element is very large. So if there are large numbers of employers who do the kinds of things that you want, there is no particular rule that ought to allow you to say, I have to have a job with every firm in the industry, when if there are a million firms in the industry, I could get jobs at 999,000.

In fact, you're going to put some firms out of business if you start with these other kinds of rules. So the whole premise that the universal access is crazy. And there's the other point. There are many gay bakers who will not do work for fundamentalist Christians or evangelical groups, and they're not caught by the statute.

And so you get this weird asymmetry taking place that some forms of obvious discrimination are okay and some are not. And the whole point about a general rule which says, let's get this whole thing out of the situation is that viewpoint stuff does not favor one side or the other, but essentially each people associate people with whom they want to associate, which means that the relationships are going to be productive rather than coercive.

 

>> Troy Senik: Okay, guys, this has been a pretty high fiber diet today, and we are going to, in the July episode, get to some of the sort of second tier cases that haven't gotten as much attention. We're pretty much out of time. So to give everybody a little bit of an after dinner mint here, I'll pull back the curtain a little bit to let the audience know that I am ambushing you guys with this.

But I think you will appreciate the ambush.

>> Richard A. Epstein: I love it.

>> Troy Senik: This is a case I feel like we need to talk about. It's a dispute out of Connecticut where a couple, they own a private nature reserve. They charge people who want to come see bears and other wildlife, and they are embroiled in a legal dispute with the state Department of Energy and Environmental Protection.

So this couple has been sued by the city they live in for violating a local ordinance against feeding the bears. But where this gets quirky is that this couple is saying the state Department of Energy and Environmental Protection is actually violating their Fourth Amendment rights because one of the bears that is known to frequent their property has been tagged with a collar that includes a camera on it.

And because that camera is an instrument of surveillance, this amounts to an unreasonable search being conducted by the bear. I'm worried about this case, Richard, because it feels like if it comes down the wrong way, we're not going to be able to have any more of those cool videos where somebody puts a gopro on top of an eagle.

How concerned should we be?

>> Richard A. Epstein: Well, remember, the stuff on the part of the eagle was trying to trace down stuff to find out information, but it's not designed to have a criminal consequence associated with it. This is a situation. It's an obvious search and the fact that the bear is a chosen instrument.

The search is conducted by the person who attached it. And if they're trying to find violations on the criminal law, they have to be able to get a warrant in order to do this. And so they're trying to upgrade that requirement in a situation where they don't have probable cause.

So I think it's an easy case the other way around. And I think the other animal cases have to ask the question, are they searches? Remember, the fundamental confusion in the Supreme Court is the relationship between a search and a trespass. Many trespasses are indeed searches, but you could have trespasses that are not searches, and you could have searches that are not trespass.

So if you take a search light, you've heard that term before, haven't you, Troy?

>> Troy Senik: I don't know what you're implying, but yes.

>> Richard A. Epstein: Well, a searchlight, and then you shine it on somebody's house, you're searching to figure out what's going on. That's a search, right? They haven't entered the premise.

And so when they started to treat the two things as being closely connected, it was yet another illustration of a bunch of supreme court justices who don't understand privacy law in any kind of coherent way, mucking everything up. And it does not, a trespass is not a preconditions for a search.

And once you understand that, then this case turns out not to be particularly difficult. It's also the agency rule, and this is part of the law of animals. If you're driving a horse, you're gonna be responsible if you push it. But in addition, there are rules of vicarious liability which says if it's your animal that bites somebody else, it turns out that you're gonna be responsible as an owner even if you didn't goad it on there.

So if you wanna mount something on somebody else's bear, it turns out that's your action, not the bear's action, unless it pulled the trigger on the camera.

>> Troy Senik: John, where are you on the right to arm bears?

>> John Yoo: I just felt bad that the bear couldn't eat McRibs.

After we stopped talking about the bear eating, I lost interest. I concur with Justice Epstein here.

>> Richard A. Epstein: Justice Epstein. Yeah, those days are never gonna come, John. Maybe Justice Yoo has a chance, cuz I think, what, you're 56 or something, right?

>> Troy Senik: Listen, if you guys-

>> Richard A. Epstein: And I'm an octogenarian.

 

>> John Yoo: Yeah, fertile octogenarian.

>> Richard A. Epstein: No, infertile octogenarian, I can assure you.

>> Troy Senik: If you guys had not disqualified yourself prior to the inception of this podcast, you have certainly disqualified yourself in the intervening years on that point, John.

>> Richard A. Epstein: Look, it's a point of honor. One of the things that I learned very early on, which was told to me by my old Dean, Phil Neal, he says, never take a job to get another job.

So you don't take the job as a commentator to become on the Supreme Court, cuz you can't do your job right. And so what you do is you do it. And it turns out if you lose those kinds of things, you find some other career to undertake. And I mean, now, I'm too old to do anything, at least of a public nature.

But I think it's important for every academic to say what they think about these things, even if it's gonna preclude them from serving in public office, in my case, with respect to either the Democratic or the Republican Party.

>> Troy Senik: All right, fellas, that's all the time we have for today.

My thanks to you both, as always, to our producer, Scott Immergut, and to all our wonderful listeners. Remember to do us a favor and write the show wherever you get your podcasts. We'll be back with you soon. Until then, faculty lounge is officially closed.

>> Richard A. Epstein: John, you were terrific.

 

>> John Yoo: It was great. You know what's a good session?