Law of the Land: The Supreme Court’s Year in Review

welcome everyone to this annual folks

event of the 92nd Street Y law of the

land I can tell you five years ago when

we came up with this idea it never

occurred to us that anyone would care

yeah it was like I for one was very

skeptical Trevor I think had more

thoughts more ambition about this but I

I said who would want to come for this

you know and what we've learned this is

one of the more what's been wildly

popular over the last five years I was

telling mark this before he said that's

a good thing to know that in fact every

year people remember this they

downloaded on on demand they talk about

it they want to know when it's happening

in the next year so thank you for

joining us yet again for logline I think

that it is fascinating the Supreme Court

is there's mystery in it everything

about it is mysterious and I think that

what happens with the way we run it here

is that you know you hear the Supreme

Court decisions being announced

throughout the month of June and even

though you see arjan on television and

read mark and Andrew everyone saw has

lots of questions you know they have

reason they keep reading and they think

you know what folks we'll explain it to

them and that's why they're here so

thank you we are joined every year you

know we change our legal journalists or

Supreme Court Reporters the only

permanent guest is the Dean of NYU Law

School trevor marcin the truth is he

really know this stuff better than we do

I mean you know he we write about this

stuff but he really knows is he's he

says he's running the law school but

he's really reading the cases he loves

that and so he's here with us but we're

joined by Andrew Chung from Reuters

and our friend Mark Stern from slate and

the wonderful Ariane de vocht from CNN

so let's start there's so much to talk

about you may remember last year we did

this on the night that President Trump

announced his appointment of Cavanaugh

we did it on this night so what we did

is we we televised the the announcement

from here to make sure that people

didn't go home and because there was

that much intrigue so the one question I

want to ask is a year later even that

night we had no idea what that

confirmation hearing would look like I'm

amazed that we went through that and

then the next thing you know the Supreme

Court was in business as if nothing had

happened and I'm wondering whether a

year later some of you one of you have

some insights about what we learned from

that experience and did anything happen

during the year in any of these

decisions that makes you think well you

know that hadn't been a direct bearing

in this confirmation hearing and that

somehow it got unnoticed in this opinion

so anyone Andrew you want to start I

mean I sure I'll start I guess my answer

would be no to your last question I

think justice Cavanaugh came onto the

court after this incredibly

controversial contentious confirmation

and drew a little closer to sorry you

hear me yeah and he he got onto the

court and it was basically like nothing

happened like he he comported himself

with you know he was composed on the

bench he was easy with the other

justices he often sort of bantered with

the justice right beside him elena kagan

you really couldn't detect from his

demeanor that something as you know

transformative as what happened during

the confirmation hearing had actually


I mean his jurisprudence has has sort of

played out as expected he's he is most

observers thought he would be quite

conservative more conservative than the

justice that he replaced Anthony

Kennedy and he has been but he voted

with the majority this is incredible I

just read this is 91% of the time he's

like trying to win a popularity contest

and you know he's mostly with the chief

mostly right mostly with the chief I

think they were what 94% voted together

but 91% of the time he was with the

majority I mean is that how unusual is

that is that unusual does anyone know is

that unusual I know

Trevor you clerked for the Supreme Court

is that unusual for a for a newly

appointed Justice or we'd say no no we

would expect that a newly appointed

justice would get along with everybody

well I don't I don't know the statistics

on how often each member of the court in

their first year voted with the majority

but I think we have to be careful with

that statistic so if there's a fairly

stable majority in either direction on

the cases where the court is likely to

be divided then the only real question

is whether the new member of the court

is likely a member of that majority or

is likely in dissent if justice Kavanagh

as has been observed so far is more

likely to be in the majority of a

conservative leaning decision than when

that 91% figure tells you is that most

of the closely divided cases this year

leaned conservative as opposed to

liberal and then there are a bunch of

cases that weren't closely divided were

either everyone on the court agreed or

it was or it was an overwhelming

supermajority so that by itself I think

prob to me tells you more about the

relative stability at this point of this

newly emerging majority that's that's

much more likely to lean right than left

on the Roberts Court not in every case

not in every vote that justice Cavanaugh

cast and he he certainly cast some votes

this year that leaned more with the

liberal justices they've been

conservative but I think mostly what

this is telling us is that we have a

court with some very easily identifiable

voting blocs all right well you know we

were talking about last year at this

time and I think that one of the most

obvious changes we've seen now is the

role of Chief Justice John Roberts who

for so many years was in the shadow

of Anthony Kennedy on those cases that

most captured the public's attention


and then suddenly Kennedy has retired

and you have John Roberts now and he is

the most important vote and he's

juggling two things he's juggling the

institution of the court on one hand but

he's also juggling his conservative

jurisprudence and his feet are on the

pedals and he now instead of Kennedy is

going to determine how fast and how far

this court turns to the right he

suddenly has this central role and

that's the biggest change I think since

last time and the speculation a year ago

that in fact it might be Roberts who

would become the swing vote and replace

Kennedy has that come to pass is that

part of what it means to have his foot

on the pedal in restraining the amount

of the degree to which we Raeleen right

well the thing is when you say swing

vote you suggest a jurisprudence where

sometimes you're with the Liberals and

sometimes you're with the Conservatives

so I hesitate to use the word swing vote

for Roberts I think much more likely he

is maybe the deciding vote in so many of

these cases but his balance here is

between the court and his vision and the

institution and his own the way he sees

the law and so that's why he has become

just so critical and I would also say I

think a swing vote at least to me is

someone who sometimes swings left and

sometimes swings right and that was

Justice Kennedy love him or hate him

when he swung left he swung left big

right obergefell marriage equality

nationwide didn't flinch clearly loved

riding out of pain using words like

human dignity equal dignity for he was

having fun

right and that was an undeniably

progressive decision when he swung right

oh he swung far right citizens united

right really just accomplishing these

chief goals of the conservative movement

and so he ended up infuriating everyone

but he did really swing

Chief Justice Roberts doesn't swing like

that he either swings really far to the

right or he swings right to the center

and maybe an inch to the left and he

will give it Liberals crumbs and then

leave them begging for more and he's not

gonna give them anymore he's given them

all that he thinks they deserve he'll

give them this tiny qualified win in say

the census case which we'll get to and

they all say Thank You mr. chief justice

were so grateful mr. chief justice and

then he's gonna turn around and screw

him I mean he's not going to then

deliver more big left-wing wins for

progressives not gonna happen so he's

not gonna end up being the Souter of his

generation no right we're people where

people are gonna say can you believe

that they picked this guy as a

conservative that's never gonna happen

well that was said after the individual

mandate that's what I thought right

you're saying but it's not enough to

carry the day it's not said very often

this term I mean in addition to the

census case he did sort of you know have

the swing vote in stopping the asylum

plan and for the Trump administration

and also you know he was easy an

abortion and a Louisiana abortion case

and yeah you know also an agency power

deference case which is sort of in the

weeds there's a there is just this I

agree with this point about you have to

be careful of the term like swing

justice just to give a little more

historical context in that I think we

could think back to at least the time of

Lewis Powell being on the court where -

in terms of predecessors playing this

role of the middle justice justice

Powell was that during the burger court

years and then justice O'Connor really

yeah so she heard service on the court

overlapped many many years with Justice

Kennedy during her time on the court she

was really the middle justice in a great

many cases but if you contrast O'Connor

with Kennedy and now with Roberts you

can see just what how different that

role can look what justice O'Connor

preferred middle ground decisions and so

when she was the deciding vote she often

sought a way to decide the

case as specific to its facts as

possible in a way that kind of gave

something to either side think of the

way she cast her votes in the University

of Michigan affirmative action cases

back in 2003 upholding one plan striking

the other one down it's really a kind of

middle position Justice Kennedy wasn't

that sort of justice I think you've got

it exactly right he was often the

deciding vote but then he would be the

author for a very aggressive opinion at

one end or the other of the ideological

spectrum if you want to put it that way

I don't think Justice Roberts is going

to be like either of those two I think

there's a set of commitments that he

seems to have that are clearly held in

good faith and deeply believed and that

he is a very powerful exponent of that

are identifiably conservative and that

will guide his votes in most cases and

then there's a small set of cases that

he apparently seems to view as putting

the Court's institutional legitimacy

into play

in an unusual way and it's in those

cases perhaps alone where he might cast

a slightly different kind of but that's

not a deciding justice or a swing

justice across before we get to some of

these cases

arjan I wanted to ask you as we talked

about this before you had said or you

had written before the last election

that you thought we were moving left

that you were seeing a movement left and

then the last election changed

everything thing so can you explain

because this is we've gone this is a

complete 180 right you were at the time

thinking in fact I think you even said

that you thought that liberals were

disappointed in the garland nomination

because he wasn't progressive enough

right and boy do we wish that would have

not happened right well I don't cover

politics so the election I was tasked

with the next day saying what would

happen in the court and I had been

watching I had been watching over the

summertime with surprise that I felt

like the progressives we're sort of

letting Merrick garland it just didn't

come up you know weeks past and there

was the campaign and of course I don't

cover politics and I think why isn't

this coming up you're saying this should

have been an issue that they had done

this to us

I was nobody no I why aren't they

talking about judge Garland and getting

on the court

it just wasn't on the campaign trail and

I know that some progressives thought

that if Hillary Clinton were to win

maybe there should be somebody and

another nominee but what I was really

struck with it wasn't a part it didn't

come up a lot on the campaign trail so

there I was thinking in my head okay I

want to write a piece the morning of the

election about where this Court is

headed and I was all set to do that and

I remember I went to Starbucks and I

came back in because we have an entire

political team and they said whoa and my

first thought because it was going to be

a long night is I got to start writing

right now right what this Court could be

with the change here so I guess I I do

feel struck that that it wasn't it

wasn't a big part of the campaign and

when you saw how Donald Trump handled it

when he was a candidate no other

presidential candidate has ever put

forward a list of potential nominees

when he didn't have the nomination that

was extraordinary I mean you had a list

and he was thinking about that quite

early so that really struck me mark I

want to ask one question to you cuz I

know we've talked about this should

people be surprised that Cavanaugh was

as conservative or not as conservatives

that they feared unless Susan Collins is

in this room then no no one should be

surprised because his record on the DC

Circuit was extremely conservative there

was nothing in his jurisprudence to

indicate that he would be a Souter or

frankly even really a Roberts in the

sense that he had this deep overriding

concern for institutional legitimacy he

is an aggressive ideological

conservative and almost as soon as he

joined the court he did his best in

almost every case with a few exceptions

we will talk about to push it far to the

right and he has ingest less than a full

term on the court now he has really I

think overridden a fair amount of

Justice Kennedy

legacy of moderation and leftward swings

and he's prepared to do even more in the

future he is the staunch conservative

that most people thought he was that

some of his defenders pretended he

wasn't but that we all really knew he

was let's talk about the census case can

someone explain this to me we've if you

haven't been following the news today

the question is now moot the Justice

Department the Commerce Department has

withdrawn the question the Supreme Court

essentially it told the the Trump

administration the Commerce Department

through Justice Roberts go back and come

up with a better answer remember this is

the case in which the Commerce

Department decided to include a census

question one had not been included since

1950 the founding fathers really really

interested in how many actual people

were living the United States they

weren't focused on whether they were

citizens or not so it's a question

whether you ever really had to have the

question although in the past they have

had it they decided to revive it during

this sort of the the Trump

administration there was understandable

concern that with the the the atmosphere

of immigration as we have it that

Hispanics minorities the undocumented

would not respond to the question and

they would be uncounted and by uncounted

it would affect certain seats at

electoral college funding and so

therefore this big went to the Supreme

Court and now the Supreme Court had said

to Justice Department said to the

Commerce Department look your answer

before was pretext we didn't buy it come

up with a better answer now why I mean

it seemed to me that Justice Roberts had

given the Trump administration an

invitation just go there and give me a

better answer and we'll approve it now

he didn't say you couldn't ask the

question they just said you didn't give

us a good answer for why you wanted to

include the question give us a good one

so why did they now retract the whole

question altogether why would they do

that who wants to take that first

this is really a political question too

I guess right and we were having this

discussion earlier I I mean

it's anybody's guess I suppose would

probably one hypothesis is the the

deadlines involved were very compressed

from from the get-go most of the

citations for the deadline was the end

of June and that's what the you know the

Solicitor General and the government had

mostly represented as being the deadline

and Justice Roberts noted that in his

opinion I mean there was some ambiguity

in in in the sense that depending on

which side you were on and and how it

would benefit you some people argued

that in fact the Census Bureau could

with additional resources meaning lots

more money they could delay the printing

of the forms until October and so when

so when the when Justice Roberts blocked

the question it was it was a it was you

know people were wondering whether they

could come back with a non contrived

answer quote-unquote and somehow make it

through the iterations in lower courts

notwithstanding that there are other

things going on in lower courts like

sanctions motions in the New York case

the the equal protection issue in the

Maryland case how all that would play

out even before October so I mean I

think the best guess would be the

government just realized that there just

was not enough time to do this even by

October oh yeah I happen to have the

opinion with me because I had to write

the last iteration of my story in the

cab on the way here and I think what's

interesting about it is that keep in

mind that the Solicitor General no

Francisco he went to the Supreme Court

and he said we want you to look at this

question on an expedited basis because

this thing's got to be printed in June

so you've got that mm-hmm

solid right to say I'm on record of

telling you the urgency that you have to

do it now and then you have suddenly the

president in the last couple of days

saying well I think I want to delay

that's that's do differ

messages right but then you also have I

mean Roberts in this opinion which was a

bear in the first few minutes to

understand what happened it was it was

crazy but in this opinion Roberts

doesn't say you can't do it ever he just

really zeroes in on the government's

rationale and all along the government

had said we are doing this to better

comply with the Voting Rights Act and

here's what he says in this opinion he

says and unlike a typical case in which

an agency may have both stated and

unstated reasons for a decision here the

Voting Rights Act enforcement rationale

the sole stated reason seems to have

been contrived so he's basically saying

go back and do it again you know what's

your rationale but in here there's a lot

that says that there is discretion but

that sentence sure tells me that the

only thing you talked about was the

Voting Rights Act it would make me

dubious if you came up with something

else well it's you know so if you I

think that's right and my guess at this

point also is that the sort of

practicalities of timing dictated the

decision the Solicitor General did

represent a seemingly fixed nature of

the deadline in the absence of some

commitment of extraordinary resources

and the question I guess would be can

extruded extraordinary resources be

committed and what would it look like

even to try and the difficulty there is

supposing you even could figure out okay

we think we have six months more if we

if we just allocate way more resources

to the effort there wouldn't be any way

to know today that the litigation on

remand and the ensuing inevitable

appeals would be finished six months

from now and so there is a kind of

problem I I haven't thought this through

I don't know if this were if this were a

matter of absolute first urgency for the

nation where there was no real resource

constraint I suppose you would just

right now decide to print two versions

of the census and then you would let the

litigation play out and

you which one you were allowed to use

and I don't know why that's not been

contemplated except that it would be a

certain waste of money paper but I'm not

positive that government never makes

decisions that kind of waste I I do

agree with with with the way you've

described the case it's it's a very

specific holding by Justice Roberts to

focus on pretext alone he does not agree

with judge Furman's comprehensively

reasoned opinion at the district court

level that the decision was

substantively arbitrary and capricious

which is the standard under the

Administrative Procedures Act to have a

firm judge Fuhrman on that ground as

well would have made it much more

difficult even if there were lots of

time but just by saying they cited a

reason that we disbelieve Chief Justice

Roberts came 1/2 step away from saying

the administration lied it leaves open

the possibility of not lying and the

thing here is I think it's almost

certain that just that Chief Justice

Roberts would be a vote as a part of a

majority that would have upheld the

census if it had been defended on the

ground that the government wants to give

States the option to decide whether to

draw district lines on the basis of

voting-age citizens as opposed to

persons which is the thing that the

administration has been accused of

wanting to do you're saying just toking

up to just tell the truth

would have by my reading of Chief

Justice Roberts opinion would very

likely have been legally sufficient well

this makes me think all the clocks been

run out of here right well this means

you think we should talk about this next

Roberts opinion this is the

gerrymandering case because even though

we could say that the census case is

moot it does seem that if you looked at

both of those decisions together they

seem to be an attack on the democratic

process to some degree right or an

interference with the democratic process

right I mean in the census case there

would be fewer people who are being

counted under counted and districts

would be drawn differently that's that

is an infringement on you know

democratic participation and of course

the gerrymandering case is where he says

he literally says look I'm we're not

really in a position here to make these

decisions on political grounds he

doesn't say it but he's really saying

elections have consequences

one day the Democrats will win the state

houses and they'll redraw it again but

it's not for the courts mark you want to

start with this it is a disastrous

decision it is misguided it is dishonest

I think it is catastrophic to democracy

and I think it's poorly written but

besides that you like it you know you

admire it on other leather than that how

was the play mrs. Lincoln look there's

this there's this great line in Justice

Elena Kagan's dissent which I would

advise you read actually before you read

the majority opinion neither is very

long in which she she points to all of

these state courts and lower federal

courts that have both gauged extreme

partisan gerrymander 'z decided that

they violated the Constitution and and

commissioned maps that fix the problem

and she gestures to them and she says

what do they know that we don't and I

think that's brilliant because what

Roberts is saying is we can't fix this

and what Justice Kagan shows objectively

and empirically is yes we can we have

simply chosen not to fix it we have for

the first time identified a

constitutional violation and thrown up

our hands and said we are not capable of

fixing this so we will let it fester as

a sore on our democracy and and I I mean

I I think it's very difficult to contest

that I don't think Roberts makes a

serious effort at trying to he sort of

warps what the plaintiffs were asking

for they were not asking for

proportional representation they were

not even asking for partisan symmetry

they were saying these lawmakers are

going into dark rooms using partisan

data to dilute the power of our votes

because of our expression of support for

certain political parties make it stop

at the very least just rein in the

extreme practices here everyone knows

them when they see them just say these

have gone too far and Roberts said we

can't do that yeah but I think it was

interesting at

coming out of oral arguments because

first of all that Kagan dissent which

was read from the bench cheerfully I'm

told and well unfortunately none of you

will be able to hear it until next fall

but it's worth it to hear it because

I've heard her be very passionate and

here there was real sadness and at the

end in the opinion at the end she said

it was with deep sadness that I dissent

which you usually just say respectfully

dissent but when she read it in court

she mentions the name of each of the

liberal justices and her voice did it

was just it was very emotional she was

sad here but at oral arguments to push

back on a little bit of your point

Justice Alito Chief Justice John Roberts

a Kavanagh they felt like we will be

here every five minutes and if you were

talking with Roberts he would say this

is just what I'm talking about that we

are not the political branches were the

legal branches and I'm drawing the line

now Kagan says this is when we need the

courts the most but he pushes back and

says this isn't our role and so here

you're talked about two of the most

politically charged cases of the term

and we have seen Roberts on one side

siding with the Liberals and on the

other side taking into consideration his

strong thoughts that this isn't a

political branch Andrew I mean the

practical upshot of this decision I mean

there are there are certain people

certain experts who say that we're we're

gerrymanders are possible they are

saturated and it's not gonna get much

worse than it already is because it's

really bad right now but others say you

know it is it is possible to get more

and more extreme because the the

computer models are so precise and the

voter data is so precise and now that

now there won't be any fear of

court intervention at least at the

federal level so I think you know most

experts at least that I talked to you

thought that it will get worse going

forward but one one thing that I thought

was kind of surprising from Roberts

opinion was if if I'm not if I'm unless

I miss my miss remembering he was in

dissent in the case in in Arizona that

challenged independent reading

commission but in in this opinion he

spent a good deal of time talking about

how those are a possible remedy state

based bipartisan or independent

commissions you know cases brought under

state law under state constitutions I

mean he sort of talked about these as

remedies and in in a way that made it

sound like he was supportive of those

efforts so I thought that was kind of

know so that I was struck by that too

and I just one possible way to think

about this case I I'm also disappointed

in the result I think it's it's quite

stark and quite extreme relative to the

baseline of the Court's cases in this

area coming in so for some decades now

the court has said in principle extreme

partisan gerrymandering is Justitia ball

it's just that we haven't yet found a

standard I don't read Justice Roberts

opinion to say we still haven't found a

standard I read him to say we hereby

declare that the search for a standard

is over and that they're there

categorically is not in the language of

the courts cases there is not a

judicially identifiable and manageable

standard which which I agree as a matter

of institutional incentives sort of

takes away any underlying threat that

the court might intervene now the tricky

thing here though is if the if the

argument was that the court ought to

intervene in cases of extreme partisan

gerrymandering then the argument was

also that the court ought not to

intervene in just ordinary partisan

gerrymandering that some level of

pursuit of partisan advantage through

the drawing of electoral lines

would be permissible or at least not a

basis for judicial invalidation and what

that to me really says is that whatever

one thinks about the decision in this

case we're talking about one of those

constitutional law questions that is

fundamentally a who decides question and

the only real solution to partisanship

in the drawing of electoral lines is a

different institutional arrangement

altogether it's some kind of independent

commission now as American politics

nationally capable of generating that

kind of institutional arrangement not

today is any state well yes and how much

more of that might we see I don't know

but at best had this case gone the other

way the court would have said we will be

there to provide a remedy in extreme

cases cases like the North Carolina one

where when asked one of those

responsible for drawing the line said

gee there were 13 seats available here

why did you draw them so that and the

overall votes in terms of political

partisanship in the state are pretty

evenly divided why did you and your

colleagues draw this so that there would

be 10 safe Republican seats and he said

well we couldn't figure out a way to do

it to get 11 safe Republican seats and

he didn't he also say I just thought it

would be better to elect Republicans

than it would be better so that so maybe

the court would have been available to

rule that out so what would we then have

we'd have a case where 8 or 9 maybe that

was ok about 10 we would not even had

the case gone the other way at any of

the standards that justice Kagan's

descending opinion was proposed was

proposing that any of them been adopted

as law that would not have meant no

partisanship right in in the drawing of

electoral rights and I think that's

important to bear in mind there's one

more critical thing about that opinion

if and we talked about it before the

difference between Kennedy and cab

absolutely because Justice Anthony

Kennedy for years sort of held out the

idea that there was going to be a

standard he never pinpointed one but

even last term we all sat there waiting

and wondering whether he was going to

pull the trigger and say there was a

standard last year they punted this year

Cavanaugh replaces Kennedy and he slams

that door

that is one of the biggest not having

I'm having candid its Exhibit A right I

think this was one case and for sure

that would have would have been

differently decided well not necessarily

though right but Kennedy never pulled

never said never right and Avenue says a

never but in in the arguments before

they punted like last term they Kennedy

was posing the question to both sides

about this very scenario if if a state

put in its law that we will we will

redistricting order to benefit this so

blatant so blatant right and and that is

in fact what what happened Trevor told

us and it came up in oral arguments this

term when Kennedy wasn't on the bench I

think three justices went back to

Kennedy's question which was he wasn't

there but he was let's let's move on to

the I wanted to talk about the American

Legion the forty foot cross case we have

so many more things to talk about this

one this is so interesting to me so this

is the case in which in Maryland on a

public highway there's a forty foot

cross that was paid for and erected a

hundred years ago roughly after the war

after World War one and everyone said

that although it's a cross it had sort

of a secular basis it had a historic

basis has been there for a long time and

so the question here is was this about a

case and in the end the Supreme Court

said that this was not a violation of

the Establishment Clause of the First

Amendment even though even though it's

on Maryland land even though Maryland

taxpayers are paying for the maintenance

of the cross they're saying well but

it's there for ninety four years so the

length of time seems to make a

difference now and that it has a sort of

secular historic basis and so therefore

it's not about religion that for

religious freedom doesn't mean to be

free from religious symbolism and so

therefore and and and and so the

question is this is this really a case

that is ultimately defending religious

freedom or is this a different kind of

First Amendment case that we haven't

seen before well it's it's a narrow

decision right

Justice Alito his majority opinion but

oddly the members of the court who joins

justice alito's majority opinion do not

agree on what it means so you have you

have justices Brett Kavanaugh Elena

Kagan and Stephen Breyer joining all or

most of Alito's opinion and you have the

Chief Justice as well but they're on the

same page all three Breyer Kagan and

Kavanaugh right separately to say what

what this opinion we just joined means

to us and they they come to different

conclusions so Breyer and Kagan say we

think this means if it's old it stays if

it's new we're not so sure basically

it's an old cross it's been up forever

like maybe they made a mistake when they

put it up but we're not gonna go tear it

down now Cavanaugh writes separately to

say oh this opinion that I also joined I

think it means nothing like that I

actually think that the age of the of

the religious symbol might not matter at

all and that in fact if this cross had

been put up three days ago it could

still be constitutional so you have this

weird squabble with in the majority and

there is also I think a sort of curious

contradiction within justice alito's

opinion so he gives a few reasons why

this cross does not violate separation

of church and state but two of the major

reasons are one that it has over the

years taken on new secular meanings to

the point that its primary primary

message may no longer even be a

religious message right that it's no

longer a Christian cross that it is a

peace cross that it memorializes world

war one number two that if this cross

were moved or torn down by court mandate

that that could reflect impermissible

hostility to Christianity that would be

in violation of core constitutional

values so just to lay that out for you a

little more clearly this is not a

Christian cross but if it's taken away

it will send an anti-christian message I

do not understand how that makes sense I

would love for any of my esteemed

panelists to explain it to me I I've

been thinking about it for weeks and I

just don't get it

anyone else me either

alright when we can move on to another

case I mean I can just I mean if the

topic is religious rights I mean the

court after the day after the last

ruling took a case on a Montana school

subsidy program it's a it's a program

that subsidizes private schools and it

was struck down by the state Supreme

Court on on the grounds that it violated

the state constitution ban on any kind

of aid to religious institutions so this

is this is a case where it could give

the justices another opportunity to sort

of expand religious rights they did so a

couple terms ago in a case called

Trinity Lutheran which was about a

church in Missouri that was trying to

access public monies to fix its

playground so Mazar cases that the court

is very interested in and is is seeking

out to potentially further expand

religious rights sorry on well so I

would argue that during the Cavanaugh

hearings there was a big talk about how

there was going to be a conservative

revolution and it was going to happen

this term and I think that that cross

case shows that this term was more I

think in some ways a term of transition

as Chief Justice John Roberts was

looking at institutional concerns I

think Cavanaugh was coming off the heels

of that hearing and when we thought

about that cross case there were a lot

of people who thought that the

conservatives on the court we're going

to scratch out precedent and set a new

test that would allow more religion in

public life and I think that that

opinion shows that that didn't happen

because when I first saw it I was paging

through it okay where's the test and

there isn't a clear conservative

test there and you're saying they could

have done that they could have and and

for instance Mike Carvin who argued he

was hoping for a new test and you do see

Kagan saying at one point there's some

fine points in this Alito opinion and so

I think that that is evidence that the

court is moving in that direction and

next term is going to look at a totally

different story but that one and gamble

and a couple of the other ones show that

this term wasn't that revolution just

you know and and I definitely want to

get back to that about what you think is

gonna happen next term let's move to

gamble for a second

so the gamble case deals it's

particularly I think relevant for New

Yorkers right if you think about what

Cyrus Vance is doing with mana for in

bringing his own case because this is

the double jeopardy case the gamble

versus the United States the general

rule if I'm not mistaken is that double

jeopardy doesn't apply if a state court

state prosecutors want to bring very

similar charges because they're deemed

separate constitutional actors they're

sovereign for constitutional purposes so

it doesn't violate the Fifth Amendment

if you've been prosecuted for a crime in

federal court and then you've wind up

being prosecuted again in state court

the reason I mention New York is because

we know that mana for now has this exact

same problem in order to overcome the

possibility of a donald trump pardon

Cyrus Vance I suspect for one of those

reasons and the fact that he thought

that New York law was being violated

immediately ran into court and said look

you violated our mortgage fraud laws and

so this question come came up in this

term and the court essentially says what

what is it how do we how do we

understand this and given this

conservative leanings I wouldn't want to

take this well I mean it says we're not

gonna change a thing about how we deal

with double jeopardy federal government

and state governments can still come in

and prosecute for the same crime and

we're not gonna change that by a seven

to two vote with justices Ginsburg

and Gorsuch both dissenting they wrote

separate dissents as I put it it takes

justice Gorsuch 32 pages to say what

Ginsburg says in 12 and you know they

are basically staking out a position as

kind of the libertarian justices on

these criminal issues they're saying

look this whole notion of separate

sovereigns that the states and the

federal government are different

sovereign entities you know that's a

bunch of baloney because the truth is

the framers thought the people were

sovereign and that all governments

derive their sovereignty or their power

from the people who were the sovereigns

and so what the court engaged in to

uphold this exception to double jeopardy

is basically wordplay that's what

Gorsuch and Ginsburg say the majority

says well we think that this is a decent

enough rule that we're not gonna

overturn decades actually centuries of

precedent to scrap it it turned out to

be an interesting and less politically

charged fight than I think a lot of us

expected and it was a lot less close of

a vote that we expected but it was a

moment for most of the justices to come

together and say in principle we will

uphold precedent we believe in stark

well well then I want to talk about

because we're talk about this soon about

the idea that we think this year was an

attack on precedent but not in this case

in this case the right the menorah the

the dissenting justices came from two

different nominations you're saying he

staked out a libertarian position I

can't figure out for myself what is the

politics of double jeopardy right I mean

is that a liberal issue is a

conservative issue normally speaking do

you think that a conservative would say

punish them twice right the hell with

them state and federal court you'd think

that that might be I just don't

understand and I think the fact that the

dissenting opinions come from course

such as Ginsburg is itself interesting

and again it'll play out again here with

metaphor well I think you do understand

I think what this case represents is

that there's a large swath of the courts

docket where the sort of partisanship is

at best an incomplete way of

understanding what's at stake in the

case that legal doctrine is more likely

to govern in those spaces and the court

the sort of conventional position by

sticking with its long-established

jurisprudence on this question it's not

unheard of for there to be unusual

comrades-in-arms in descent and as as

you pointed out to send it separately

but basically for for very comparable

reasons would you would say this is a

good outcome for this reason that they

were respecting presses well I'm an

institutionalist I think the court helps

itself when it tends to follow its

precedents or at least accords a very

strong presumption in that direction

there were a number of other cases this

term where either in a majority opinion

or in a separate concurring opinion the

court or an individual member of the

court expressed an openness to rethink

precedents and a tendency not to think

about precedent the way the Supreme

Court in majority opinions like planned

parenthood against Casey has described

it in the past and all of that in my

view is dress rehearsal for abortion

cases to come among other things I mean

that will have precedent discussions in

other areas but there was a lot of

jousting in err in on issues like the

extent to which a state has sovereign

immunity from suit brought by citizens

in the courts of other states not the

top of anybody's political hot-button

list but there was deep disagreement in

that case over how to think about the

weight of precedent and the majority

opinion by Justice Thomas in that case

suggested to me a much greater openness

to rethinking and overruling precedent

simply if you think the earlier decision

was wrong and the dissenting opinion by

Justice Breyer said if that's your test

you really don't have a rule of

precedent at all right if thinking that

the earlier decision is wrong is by

itself enough to overrule it then you're

not giving weight to precedent as such

that was just kind of shadow boxing this

term around those issues but it's going

to be a center stage maybe as soon as

next term but in the next couple but how

do we then account for the Kaiser

decision Kaiser versus Wilkie right

because there's another case that's the

case where there's long-standing

precedent that

if if you can't really figure out what

an agency's rules are it's better to let

the agency figure it out then it is to

let a federal court figure it out

right and so in that case they said well

that's the precedent and we think we

should abide by that precedent so there

does seem to be some confusion there

were a couple times in this in this term

well sometimes the court a majority of

the court will think that the earlier

precedents were right then they'll

uphold them right that's not to say that

stary decisis was the reason it was

upheld and that's that's what we'll need

to explore if you in the Kaiser case I

mean Justice Roberts didn't write the

opinion but he wrote a concurrence if I

remember that right and in it he he you

know he said it's it makes sense to

adhere to the precedents in this case

you know the idea of judges deferring to

federal agencies in their interpretation

of their regulations but it's

interesting because he also said I think

in a message to the dissenters who had

set who had wanted the precedents to be

overruled Gorsuch said that that the

what resulted from the main opinion

which was a very constrained version of

this deference was that it was zombified

in a paper tiger but roberts basically

agreed with him and and said well you

know for all intents and purposes that's

exactly what happened so you know what's

the difference well I I think that one

interesting thing this term was the

Kaiser case in another case which is

Gundy and that it's not as easy to talk

about those cases as it is the cross

case partisan redistricting but what is

going on at this Court is very

interesting because Donald Trump ran on

the administrative state and more

importantly White House Counsel Don

McGann cares about this issue the

conservative issue that he thinks these

agencies and other conservatives have

become too powerful that's become

burdensome on business and the Liberals

are alarmed and they're alarmed because

of course they see agencies much more as

protecting the consumer

drawing back on business so we had these

two cases this term and what I think

it's interesting is that when Cavanaugh

when Kennedy's seat was up there was

sort of this battle and the conservative

movement some people wanted a me koni

Barrett she was a judge and those

opponents of abortion wanted her on the

bench right but others pushed for

Kavanagh and they pushed for him for

this reason and you saw here Cavanaugh

couldn't participate in the Gundy case

but he because it was argued before he

was on the bench but he did participate

in the Kaiser and if any of those people

who supported Cavanaugh or Gorsuch were

biting their nails fearful are we gonna

get what we wanted to in this particular

area they did and that is of alarm to

the liberal liberals who are very

fearful that these agencies are going to

lose their power

yeah just if we could give just another

minute on gun D it's a technical case

but it is a really important

constitutional issue and I agree

completely with your analysis so this we

teach this in constitutional law this

involves the status of something called

the non delegation doctrine which is a

doctrine to quote the Princess Bride

that has been at least mostly dead for a

long time the last time the Court struck

down a statutory delegation of authority

to an administrative agency on non

delegation grounds was before the famous

switch in time that saved nine so it was

the early New Deal and there's an

opportunity in a case this term for the

court to look at that again and so what

this would do if the non delegation

doctrine will revived is it would

constrain Congress's ability to delegate

authority to administrative agencies to

make rules to govern in areas ranging

from the environment to the economy

right everything from the EPA to the sec

and much more besides eight member court

because Kavanagh is recused the case is

decided 5-3 upholding the courts current

doctrine so nothing is overruled the non

delegation doctrine has not revived

something called the intelligible


is maintained as as a pretty easy test

for Congress to pass in this area the

three dissenting justices say we're

ready to bring back the non delegation

doctrine this they are writing the

dissent that I think it's fair to say

the chamber of commerce is most hoping

the court will adopt as a rule Justice

Alito concurs he's with the five but he

writes a separate concurring opinion to

say basically I agree with the dissent I

think the non delegation doctrine needs

to be revised and in an appropriate case

I would be willing to rethink and

potentially de jettison the intelligible

principle test I'm basically with the

dissent raising the question well why

didn't he vote with the dissent if he

voted with the dissent the case would

have been four to four and the court has

a rule that when it divides that way the

decision below is affirmed but the

technical description is it's affirmed

by an equally divided court and nobody

writes an opinion there is no opinion so

think of the difference between that

outcome and this one in both cases the

decision below is affirmed but in this

case we have four justices on public

record to everyone who's regulated by an

agency in this country saying were there

we're ready to bring back the non

delegation doctrine and hugely to cut

back on Congress's power to delegate to

agencies and therefore hugely to cut

back on agency power they have made that

public statement which is in effect an

invitation if you think that Cavanaugh

is ready to provide the fifth vote to

tee up a case as soon as possible and

that's that tea epping if that's a verb

it's going to happen I'm sure in the

next year - all right but it also shows

how these conservatives again not this

term but they're raring to go and if you

see the last one of the last actions

that the court took is it decided not to

take up an abortion case out of Alabama

so they wouldn't add it to the docket

now there are others lining up coming

next turn but Thomas wrote and he said

by the way we have to take up abortion I

mean he wrote by himself but they are

raring to go and in

in one of the administrative law cases

Gorsuch says well Alito's not ready to

go now but we are I mean he basically

says that so he's sending a strong

signal and almost maybe a tiny

itty-bitty bit critical if Alito you

know we're ready to go

what's with you what yeah mark there's

also just before we leave this a great

line in justice Kagan's dissent in the

Gundy case where she's upholding the law

at issue and she says well if this law

is unconstitutional then much of

government is unconstitutional to which

the conservative majority apparently

opinion to which the Conservatives say

sounds good to us like we totally agree

Justice Kagan much of government is

unconstitutional and you even saw some

libertarian conservative commentators

saying that after the decision came out

someone archly but you know as I think

has been laid out here so much of

government is run by these agencies

today and Chief Justice Roberts the guy

we've been praising to some degree as an

institutionalist signed on to that

radical Gorsuch opinion saying

essentially that much of government is

unconstitutional so I don't know that

Roberts is gonna serve as any kind of

moderating force here I think he's ready

to go too so this is I think there's

more confusion and also cause for

concern last year people said well no

matter what happens with Cavanaugh and

Gorsuch no one's gonna overrule roe v

wade if anything who said that numbers

in Collins right for Susan Cobb

we're saying but we what we might see by

the way I think last year many of us on

the on this on the stage said well what

you'll see is something more you know

insidious incremental changes right

incremental chipping away at this right

to privacy dealing dealing with this

aspect of religious liberty and

religious freedom these new cases that

deal with fetal laws right to see a way

to sort of do an end run around abortion

I'm listening to the four view and I'm

thinking boy what and we're ready to go

starry decisis is totally up for grabs

now and under attack should we now

expect that something much more radical

than incremental change

is dawning and that that's what we're

gonna be talking about next year when we

sit on this stage I mean I don't know

the answer to that but I I do think that

some of the liberal justices are worried

I mean what worried or worried yeah I

mean in in the in the case about state

stopped sovereigns that Justice Breyer

dissented in he he he posed the question

well what's next what what what decision

is coming next what what are they going

to overrule next and and then Justice

Kagan in another decision just six weeks

later that that the Conservatives in a

five to four decision also overruled a

decade's long precedent her she answered

Justice Breyer and said well that didn't

take long and and she posed the question

once again well what are they going to

do next so I think that you know at

least the liberal justices are are

actually worried about it

well another thing that I think has been

astonishing since the Trump

administration took power we've already

talked about how early he was working on

the Supreme Court but don McGann and

McConnell and Grassley Republicans on

the hill they're working on the lower

courts and they have put an unbroke

really Grassley worked hard on the

appellate court level so now you have a

lot of the the landscape below has

changed which means that the decisions

that come up to the Supreme Court by

some of these judges could be much

closer to questioning court precedent

and you've got these embolden States and

these are bolded conservative public

interest groups so we are seeing these

petitions coming up in a totally

different terrain before we start taking

some questions for the audience let's

talk about which case a couple cases

that we haven't talked about see if

anyone wants to take the Hammond case

for instance this is the idea that

preserving the right of juries to

actually impose penalties and not


judges to do it the liquor license case

that's one of my favorite cases actually

I don't know how significant it is but

it is interesting because it does make

one question again what you know what is

the role of the Commerce Clause right do

you think that's an interesting is that

something that we'll see I'm gonna try

to understand what the implications for

some of these cases might we see them

again do they tell us something about

this court that could lead us to rethink

what might happen next year so it it

it's very helpful the constitutional law

professors for the court to decide a

case in that area once in a while

because it keeps things interesting in

class that's it's it's the aspect of the

commerce clause that we refer to as the

dormant Commerce Clause right the

negative Commerce Clause the idea that

in granting Congress the power to

regulate commerce among the several

states the Constitution also establishes

a kind of presumption in favor of the

easy movement of commerce between among

states and therefore that state laws

that discriminate against out-of-state

persons have a kind of constitutional

problem and are at least subject to a

level of scrutiny under the Commerce

Clause is what what that case was about

was saying that I think a Florida law it

was a Tennessee it was ten it was

Tennessee two-year residency requirement

in order to a license in order to have a

liquor license and it was based on the

idea that the twenty-first amendment

says that states have the right to

regulate and distribute alcohol right

and what the court says is we read these

two provisions together and your ability

to regulate doesn't mean that you have

an ability to violate another provision

of the Constitution just like the

Commerce Clause doesn't let Congress

violate the First Amendment I don't

think that's gonna be very generative of

New Jersey I think it's mostly keeping

things where they are are you surprised

oh go ahead one it and I just want to

talk about Haymond a little since you

raised it yes okay no I've gotten a lot

of radio hits on this one but I'm really

fascinated by it because it's one area

where I think justice Gorsuch does feel

a bit like the successor to Justice

Kennedy in terms of swinging really far

right but then also swinging really far

left so this is a challenge to the

federal system of supervised release

which I don't know if we have any ex

federal felons here if

you'll be familiar with it basically we

don't have parole in the federal system

anymore what happens is you get

convicted of a crime you're given a

prison sentence and then you're given

after that a term of supervised release

where you have to comply with certain

restrictions you get drug tested yadda

yadda and under the current system if

you violate that supervised release

under certain circumstances by

committing a new crime a judge gets to

just decide that you committed a new

crime by a preponderance of the evidence

with no jury input and then is obligated

to sentence you to years beyond your

original sentence up to a lifetime

imprisonment actually with no jury and

put on in this case so the court heard a

challenge to that system and divided

five to four striking down a narrow

sliver of it but justice Gorsuch is

plurality opinion assigned to him by

Justice Ginsburg who is the senior-most

justice it was Gorsuch and the Liberals

really bodes poorly for this entire

system and as Justice Alito says in his

dissent it is revolutionary in some ways

it is arguably like I think he says a

40-ton truck barreling down a hill

toward this entire system because it it

basically says that the very principle

of supervised release is probably

unconstitutional that if the the US

government wants to put you in prison

for a certain period of time then a jury

has to decide those facts a judge

doesn't get to do it and if that's true

beyond this narrow circumstance then

really this whole system probably will

come toppling down so that is something

to be watching out for because we could

have Congress in panic mode in the next

few years because there could be a

five-to-four decision with Gorsuch and

the Liberals saying that this entire

system that they painstakingly crafted

to swap out parole supervised release

that actually they really messed up and

that their handiwork is unconstitutional

masterpiece cake are you surprised that

nothing came of this again

no again we had last year we talked

about this this was the Colorado case it

just so happened there was another

masterpiece cake person an Oregon person

who's also a craftsperson a family had

the same position where artists this is

not just a real regular cake this is

the gray cake and so therefore I mean

this is Justin but this is so great that

you can't force me to make this cake for

to to honor this kind of a marriage the

Supreme Court says to Oregon we'll just

follow what we did last year but we

didn't really do anything last year so

go do that by the way my understanding

is that the same thing happened with the

florist there's the same we make really

great flowers itself any flowers special

flowers and so we said we'll just do

what we did with the cake cake but we

didn't do anything whether why are we

not seeing any answer after after

determining that same-sex marriage is a

constitutional right why have we stalled

here when it comes to religious liberty

and and cake I would say that this is

one of those cases this term where the

court decided we're not going to jump

into this one we will but we're not

going to do it now I feel like this was

one of those times where they sort of

decided look look at it the same way and

it was interesting because the people

bringing this challenge shot for the

moon here they wanted a really big

opinion they wanted the court to

overturn precedent and at the end they

had to kind of say yeah we won but they

didn't win what they wanted to win

that's that's my date do you disagree

no I the same way and I in a broader

sense I don't think it's that unusual

for the court to signal usually more

indirectly than directly I didn't as the

case here that that it's not looking to

come back to an issue the very next term

I see there's some kind of breathing

period I think this area of law the sort

of relationship between either

expressive freedoms or religious

freedoms as constitutionally protected

on the one hand and a state's power to

prohibit certain forms of discrimination

on the other especially in the area of

sexual orientation is going to come back

it's structurally similar to the kind of

tension between Establishment Clause

values on the one hand and free extras


Klaas values on the other hand that the

opinion justice alito opinion that you

mentioned in in the cross case raised

and i think all of those are swirling i

don't i don't as much as individual

members of the court seemed to have been

announcing this term that they're ready

for big change in some areas like this

administrative law area i think there

are members of the court like chief

justice roberts who's probably not eager

to take up the first direct challenge to

run against Wade and you know are hoping

that there'll be some time these issues

will come back but I wasn't surprised

that the court didn't snap them up with

eagerness this term well speaking of Rho

V versus Wade what do we think about

this upcoming term there's a gonna be a

dock a case for sure there's gonna be

some provision of the Affordable Care

Act is apparently coming up as well I

there's at least is it the Alabama

abortion case there's something coming

up at least in that I mean I know that

you you signal the possibility that we

may actually see abortion cases next

year as well as possibly affirmative

action cases well there's a tricky one

right because when Kennedy was on the

court he struck down or he sided with

the Liberals to strike down a Texas law

having to do with the doctors admitting

privileges so lo and behold another case

comes up with that same issue but it's

out of Louisiana and so what do you do

and Roberts chose to side with the

Liberals and leave it in play

leave it blocked for now and I think

that is sort of where things are now

whether or not he would vote the same

way when the merits were in front of him

that's another question and I believe

that petition is coming sometime this

summer if I'm not if I'm not mistaken I

think that that's the timing also if the

court were to take a case like that it

would have an opportunity to reconsider

and maybe even overrule a recent

precedent like whole woman's health

without necessarily if it was not

inclined to actually overruling Roe

against Wade and to return to the

process that the

it had apparently been in the midst of

up until whole women's health which was

a number of years of what many

commentators saw is kind of cutting back

on or even hollowing out the RO right

without directly attacking it whole

woman's health was an exception to that

trend which had been running for a

number of years I think the question is

will the court end up with a case on its

merits docket in the next term or two

that will more squarely present the

question of Roe's ongoing vitality

itself only if the court wants it to

well it put it on its docket I think

there will be vehicles for that I'm not

certain that there will be a good one

next term as opposed to the term fall

but again less of a fear of overcoming

just incremental change and you think

that what we're seeing this year is the

possibility that they would take it on

much more directly and and say look star

decisis when it comes to this

constitutional question is something we

certainly hear from Thomas and we firm

others this is something that I don't

bye-bye there are votes on the court to

overrule Roe entirely that's obvious

are there five I don't know and there

are also lower courts who might say you

know it might push the Supreme Court

into this if they worked well that's

interesting that can happen to you right

that was your point about the change in

composition but you're saying that's the

significance of that that they could

actually force the hand it wouldn't be

so much to the court

well and they sort of already have right

because this this Louisiana case this

law that sort of regulated abortion

clinics out of existence the law was

essentially identical to a Texas law

that the court struck down in whole

woman's health and yet the Fifth Circuit

a very very conservative Court of

Appeals declined to block the law and

found reasons why it was different that

were really bogus and really I think the

court was in revolt over Roe Kavanagh

was on the bench the Fifth Circuit said

we are through paying lip service to Roe

and it's progeny paying lip service to

whole woman's health and just said we're

not going to block this law and then

forced Roberts hand and left Roberts to

do it in this very dramatic five-to-four

decision I wouldn't be surprised if a


played out over one of these total

abortion bans and states like Alabama or

Georgia we've already seen a few judges

on the Eleventh Circuit which happened

to oversee both Alabama and Georgia

right these concurrence is basically

saying that oh well we think the medical

and logical framework for Roe has been

sort of overruled by science because the

date of viability is different and we

understand fetuses differently that to

me reads like they are preparing to find

some pretext to just ignore Roe and that

would be obviously very dramatic and it

would absolutely force Roberts hand and

sort of put him in this position where

he has to give an up-or-down vote on

whether he's gonna abide by starting

decisis on abortions take a question

from the audience and we'll say

goodnight perchance to dream I just

added that by the way I just put this in

if we were to have a chance to elect a

more liberal justice who is an

up-and-coming judge you think would be a

viable candidate so if in an alternative

universe where garland is just way too

conservative for a Democratic president

and that there was a liberal justice

that would want to do battle with these

Trump appointed nominees these new

justices is there anyone out there

because you know this happens all the

time you know we more so you actually

know this stuff right most people don't

really spend a lot of time I remember

remember when I was at Fordham someone

saying to me you know keep your eye on

Sotomayor she's the next one and you

know there were people who thought

that's where the smart money is that's

where it's gonna be Sotomayor is gonna

be an Obama pick so I'm wondering is is

there is there someone out there if

there was someone that we should keep an

eye on I know that this the judge on the

Seventh Circuit right is Mary when every

County baby came in but Barrett she used

to teach at Notre Dame Law School

there's no question that when if Donald

tribe has another appointee she will be

considered very strongly so keep that

name in mind but on a liberal side

anyone that who's been an up-and-coming

that is a I mean there's already too

many New York justices from New Jersey

justices on the court that probably they

would want some

graphic diversity but I mean this is

just putting this out there I mean judge

Fuhrman in the in the census case I mean

his star has now soared I mean he wrote

more than two hundred pages I think on

on in his decision and of course he's

been vindicated that's such a hugely

consequential decision I don't know if

that's gonna place him on higher on

people's list if there was a liberal

Jesuit so I have a list like Trump did I

have a list of liberal judges I'm not

sure there are a lot of lower cut judges

I greatly admire including to it Furman

and I'm not sure whether my naming them

an answer to your question would help

her hurt their chances for the superb

check with the Vegas oddsmaker judge Sri

Srinivasan on the DC Circuit is one of

the most able members of the appellate

bench in the country today he would be

the first Supreme Court justice of a

South Asian descent he's an enormous ly

fair-minded a judge clerked for two

Republican appointees to the to the

Court of Appeals judge Wilkinson on the

Fourth Circuit and then for justice

O'Connor on the Supreme Court I think

basically universally admired and so if

one was looking for an on New Yorker it

would be hard to go wrong with him there

are fantastic judges on the state courts

as well the California Supreme Court in

particular has a number of really

outstanding you know again we we've lost

that pot Souter was a state court judge

we don't realistically right I'm saying

it's actually a long time on the state

court yeah briefly on the first circuit

right but I'm saying that's something

that people forget you don't have to

come from the DC Circuit you don't even

have to come from a court I mean you

know Justice Justice Kagan whose role on

the court has become just increasingly

important with every term was United

brings deep experience and wisdom

to the job but not experience as a lower

court judge like I just love playing

this game too much not to jump in I have

to I have like a kind of a safety school

in a reach so the safety school would be

judged Pattie Mallette on the DC Circuit

who went toe-to-toe with Kavanagh when

he was stolen the DC Circuit on this

very really big abortion case and won

one that won that battle got a lot of

praise and I think she's a wonderful

writer a great thinker and would be a

great justice if I'm really shooting for

the moon judge Carlton Reeves in

Mississippi who is a bomb appointee a

just a very outspoken critic of Donald

Trump he gave this incredible speech

where he described Trump's attacks on

the judiciary as the third greatest salt

on the judiciary in American history

comparing his assault to the KKK in in

years past he has a robust liberal

jurisprudence he has blocked

anti-abortion laws anti-gay laws just he

he checks all the boxes and I think he's

a towering intellect and it would be a

whole lot of fun to have him on SCOTUS

all right that's a good way to end I

want to thank you all for another

wonderful law of the land andrew chung

mark stern trevor morrison ariane do

vogue ariana promise you get home

tonight you're getting home thank you

all we'll see you again at 92nd Street Y

folks events and law the land next year