The 2022 U.S. Supreme Court term demonstrated a significant doctrinal shift toward historical analysis as the primary interpretive framework, exemplified by the Dobbs v. Jackson Women's Health Organization decision that overruled Roe v. Wade by explicitly relegating pregnant women to second-class citizenship under rational basis review, and extended this approach to religion cases (Carson v. Makin, Kennedy v. Bremerton School District) and the Second Amendment (Bruen v. New York), while simultaneously applying the major questions doctrine to constrain federal administrative power in cases involving vaccine mandates (Biden v. Missouri, NFIB v. OSHA, West Virginia v. EPA).
2022 US Supreme Court Term Review: Key Cases and Impacts
Added:The structure and role of the US Supreme Court, including the power of judicial review established by Marbury v. Madison.
The concept of stare decisis (legal precedent) and the mechanisms through which the Supreme Court can overturn its own past decisions.
The core legal arguments surrounding the Fourteenth Amendment (specifically substantive due process and the right to privacy) and the Second Amendment.
Basic principles of administrative law, including how federal agencies derive authority from Congress and the concept of executive branch regulation.
The real-world impacts of the Dobbs decision on state-level legislation, reproductive healthcare access, and interstate legal conflicts.
The application of the Bruen 'history and tradition' standard by lower courts in subsequent Second Amendment constitutional challenges.
The expansion of the 'Major Questions Doctrine' and its implications for the power of federal agencies like the EPA and SEC.
Debates surrounding the institutional legitimacy of the Supreme Court, public opinion, and proposed judicial reforms (such as term limits or code of conduct enforcement).
929 views0likes1:27:52Original Release: 2022-08-09
all right all right i think we'll uh go ahead and get started um we'll still have a couple more people joining so once everybody gets in the room we'll get the doors closed and everything but i don't want to delay any longer so first off welcome everybody uh thank you very much for taking time out of your day to come down here and join us for this super informative and super exciting program today um for those of you who don't know me my name is jared bryant i'm the office leader here uh for fakery drinker in denver and on behalf of the firm i can really say that we're just excited and honored to continue to sponsor and work with the university of colorado law school in sponsoring uh the supreme court review we're especially excited this year to be able to offer this as a hybrid uh program both with an in-person component and i understand uh joining us remotely and so welcome everybody that's joining us remotely we have several hundred people that will be online watching so uh both to those of you that were able to take time out of your day and come down here in person as well as for those of you joining us remotely uh welcome and thanks very much uh just a couple of brief housekeeping notes we do also have a couple of extra conference rooms in room 34a as well as 34c that will be showing the presentation remotely just as spillover space or breakout space if you need it and really with that i'm going to stop talking but i want to introduce our moderator today professor doug spencer at the university of colorado law school professor spencer is an election law specialist and what a great time to be an election law specialist professor spencer uh has joined us in colorado about a year and a half ago came from relocated from chicago has published quite a bit in the area in a number of journals and i believe if i get this correctly your phd and jd from berkeley is that right uh as well as an undergrad from colombia if i'm not mistaken so with that i'm going to turn it over to professor spencer who's going to serve as our moderator for today's wonderful panel obviously if anyone asks questions there will be time for q a and again just thanks everybody for making time out of your day uh with that i'll turn it over to professor spencer thank you jared uh thanks to fakery drink for hosting this event it's absolutely wonderful to be back here in person to see everybody uh as i return to conferences and events happening in person i can't explain just how exciting it is to be around people and to feel this energy and so really appreciate you coming down uh and participating in this event we welcome those of you who are joining us virtually as well um after the panelists provide some background about some of the cases from this last term there'll be a chance for q a and if you are watching remotely and you'd like at the bottom of your screen there's a q a function um which we're all familiar with by now and i'll be monitoring that i'll be able to feed some questions to our panelists and also we'll be looking for uh participation from people in this room uh there's a microphone so we could pass that around so that people can hear your question when that when that comes so we are at the 11th annual colorado law u.s supreme court review event and how far we've come i would like to extend a hello and a well wishes to you from our wonderful dean lolita buckner innis who's the dean of the cu law school who's unable to be here today but wanted to send along her wishes and she looks forward to seeing all of you at future events i'm thrilled to see many of you we have cu alumni students faculty staff friends member of the legal community and then people more generally who are here just locally and interested in some of these topics to benefit from the expertise that we have on this panel today i'd like to thank our panelists today who prepared a few thoughts about some of the cases that they were watching closely jennifer hendricks is professor of law co-director of the juvenile family law program at cu boulder eric olsen is the solicitor general for the state of colorado helen norton university distinguished professor at cu boulder that's a very high honor and rank uh and martiji who's a partner here at fakery drinker biddle and reef bios for each of the panels are available to you in the programs that were circulated before if you're interested in learning more there are sheets on the table in front of you with a url urlcu.program or a qr code that you can use your phone to access that program and to see more information about each of our panelists and what they've done in their remarkable stories from free speech to the second amendment to covet mandates to arbitration religious freedom reproductive rights this has been a term like no other there was even an opinion a draft opinion that was leaked 16 to 18 weeks before we saw its final version which as it turned out wasn't that different which may tell us something about how the court operates one trend that we've observed this term and maybe over time recently is that the court is hearing fewer cases it's taking longer to publish its opinions and those opinions are lengthier uh the dobbs opinion for example was the third longest opinion published since 1946. so a lot of a lot of words being spilled all of this speaks to a court perhaps that is more fractured we're seeing more dissents published perhaps less collegial um public opinion of the court is dropping and is at historic lows just 25 percent of americans say that they have confidence in the court and that includes 39 percent of republicans the job approval for the court according to gallup dropped below 50 for the first time since gallup started tracking this and it dropped quite a bit to 40 percent so in addition to learning about some of these cases that have come up some of the legal arguments that were made um some of the implications of the cases that we just saw this last term i'm hoping that we'll start we'll think a little bit about what could it be about the way these cases are being decided or the cases that are being chosen that might be leading to some of these trends that we're seeing more dissents and lower public approval um so with that i'll stop talking i want to turn the time over to professor hendricks great thank you doug i'm going to turn on my little timer here um so my job today is to talk about jobs versus jackson women's health regardless of what area of law you practice in you probably already know more about that decision uh than most decisions that come down from the supreme court i'm assuming everyone knows the holding so my plan here is really to highlight uh the the one thing that was most striking and upsetting about the opinion from the doctrinal perspective for me and then try to leave as much time as i can for topics that people might be interested in talking about related to the decision um from other doctrinal aspects to some of the effects and concerns that we have going on here in colorado going forward i'm happy to talk about any of that will you pull your mic a little closer they're saying i don't know yeah is that better i can be louder too i can talk pretty loud okay all right so as you know the supreme court in dobbs uh overruled roe versus wade which in 1973 had recognized the constitutional right to abortion under the 14th amendment that was reaffirmed several times most notably in casey in 1992 where after some last-minute deal deal-making it was reaffirmed again in row and casey and in most other cases dealing no not all but most other cases dealing with fundamental rights the courts have have used a two-step analysis for determining when a fundamental right under the 14th amendment has been in french the first step is to ask whether the law in question infringes on a protected sphere of liberty if yes then the second step is to ask whether the state has a strong enough interest to justify infringing on that protected sphere so heightened scrutiny of some type of some kind whether we call that strict or intermediate or various other versions like undue burden but some kind of heightened scrutiny because it infringes on a protected sphere of liberty if it's not a protected sphere right if it's not a fundamental right then the second question is just whether there's a rational basis for the law which traditionally boils down to whether you can defend it with a straight face right and come up with the reason for it which is really easy for me right now because you can't even see all right so row of course held that the decision to terminate a pregnancy was within the protected sphere of liberty and then for the second step it held that the state's interest in what the court called the potential life of the fetus was sufficient to justify banning abortion after the second trimester approximately the point of viability and casey reaffirmed that structure abortion could be banned after viability but added that it could be much more extensively regulated even before viability okay sustained basic structure but a stronger state interest in regulation i want to break those down a little more i know i'm like living in the past here but what i want to emphasize is what the it's a choice that the dobbs court had before it when it came to how it was going to overrule roe because we all knew they were going to right it was a question of how and i want to emphasize what the choice was and which option they chose so if you start in that first step of the fundamental rights analysis does the decision to terminate a pregnancy fall within the protected sphere of liberty that's a question about bodily integrity and about reproduction and it should have been even in row an extraordinarily easy question the only reason it was hard and raw was that the justices weren't in the habit of thinking of women as the kind of people who have those kinds of rights but they got there anyway because the answer was so over determined by the law that existed even at the time with regard to liberty it was over determined because abortion sits at the intersection of the two most well-established spheres of personal liberty under the 14th amendment if you made a venn diagram of sort of family privacy and bodily integrity abortion sits at the intersection of them um and i just checked my time so i'm going to skip a little bit about that and just say that those two rights the rights to control over personal family decisions involving children and intimacy and the right to bodily integrity were both very well established by the time of roe and that's why i say it should have been an easy decision to say yes this is a protected sphere of liberty the harder question in row was the way to give the claimed state interest regarding the potential life of the fetus so even though the supreme court seemed to think the first question was really hard the real hard question that didn't spend very much time on in row was the state interest and whether or why it justified the infringement into the protected sphere of liberty in row however the court did cite two precedents that supported that infringement and would justify regulation and restriction of abortion the first one was jacobson versus massachusetts which was the 1905 small tax smallpox vaccination case holding that the state interest could justify a bodily intrusion in order to stem the spread of infectious disease um that provides some support right for restricting abortion but it doesn't doesn't do a whole lot because the infringement infringement is so much smaller right the infringement on bodily integrity of getting a vaccine versus forced childbirth are really just on a different scale so the second case that the that the court leaned on in row was buck versus bell as justification for intruding on the body in a way that affected reproduction you may remember buck versus bell from law school from your cod law class as the three generations of imbeciles are enough case it was the case in which the supreme court that was justice holmes commenting on why it was legitimate for the state of virginia to forcibly sterilize kerry buck because it deemed her unfit to reproduce so that precedent that the state if it doesn't want the potential life that might come out of you it can sterilize you if it wants a potential life that might come out of you it can prohibit abortion uh those were the precedents for this state interest in real okay so that brings us to the choice that the supreme court faced in dogs so done with the path um the question of how to overrule roe the easy way to over rule roe the obvious way to overrule it was to say that in road the supreme court had underweighted the state interest right it had not given sufficient respect for the state's interest in the potential life of the fetus and that interest is in fact compelling throughout pregnancy or at whatever stage of conception the court is interested in uh but the easy obvious way to overall role would be to say that roe didn't take sufficient account of that state interest and it's so weighty that the state should be able to ban abortion that would have made sense in several ways one is it would have been consistent with the political narrative that has gotten us here which has always claimed to be about the potential life of the fetus not about say for example making women second-class citizens who don't have control over their bodies okay so that has always been the narrative second it would have given the state the power to prohibit abortion without giving it more sweeping power over reproduction in general right so it could the court had taken that path and said well it's the it's the potential life that was underweighted in row it could have overruled while also overruled row while also repudiating buck versus spell right and repudiating force sterilization forced abortion things like that uh so it would have been a useful path in that way and more generally that path to overruling roe would have allowed the court to do what in several places in jobs it claimed to be doing which was to just excise the right to abortion out of the whole sort of constitutional fabric of constitutional of rights without unraveling the rest of it right it would have been able to say it's just because this compelling interest needs to be taken into account uh so this doesn't affect same-sex marriage it doesn't affect the right to contraception right all those other things that people are now worried about why are we worried about them because that's not what dobbs did right it did not excise the right to abortion from the fabric of fundamental rights by holding that the state interest in the fetus had been underweighted instead it much more explicitly and openly relegated pregnant women to second-class citizenship by holding that they simply don't have a protected sphere of liberty over control over their pregnancy and that the state can regulate them how it likes subject only to rational basis review in the key paragraph the court said row in case you struck a balance between the woman and the fetus okay um which is true right they did dobbs says the state the the state gets to strike the balance and they can strike it however it wants right in any rational way uh so pregnant women in other words uh don't get to have control over their bodies they don't have a protected sphere and in case there's any doubt about what kind of balance the states are going to strike i know we've seen many many examples over the last five or six weeks that it's been the most recent is that when hhs issued a reminder to hospitals that they are required to provide emergency treatment to people who are bleeding on their doorsteps that that includes abortion when it is medically necessary and the state of texas has responded with a lawsuit that accuses hhs of turning every emergency room into the in the country into a walk-in abortion clinic so that's how texas is striking the balance between the pregnant woman and the fetus when her life is in danger that way so the main justification in dabs for this holding that there's no perspective protected sphere of liberty around the right to terminate a pregnancy i'm not going to go into because i'm guessing this you've probably seen a fair amount of this in the media it's all this sort of pseudo-historical analysis that the court claims is an interpretive theory called originalism um but i do want to make one point about that particular method of interpretation uh which requires that fundamental rights be defined according to the opinions of basically ancient common law judges like william blackstone by choosing that method you have determined in advance that women's bodily integrity is not going to be protected because it wasn't then right um if if your the scope of fundamental rights is determined according to a period of time when women were second-class citizens then that's what you're going to have okay at various points in the opinion when the court sort of needed a rhetorical crutch it did say oh but abortion is different these other rights won't be affected because of the potential life and i do think in the future those sort of throwaway lines will be useful uh to justices who want to go one way or the other on which um which fundamental rights we're going to keep or not but the logic of the opinion um is very much in the other direction right the logic of opinion undermines the foundation of sort of all the 20th century modern fundamental rights that the court has recognized under the 14th amendment and in in adopting rational basis review for regulations of abortion the supreme court already abandoned the idea that the only state interest that could that is at work here is preserving the life of the fetus because it said rational basis applies that means any legitimate state interest and it listed several examples some of which like choosing the method of abortion have nothing to do with the preservation of fetal life so they have already authorized creativity by states in coming up with state interests that might justify regulation so the one encouraging thing that i want to say about this opinion is that it is intellectually incoherent uh and uh it will be fairly easy to pick and choose um that's good and bad um it's bad because letting them pick and choose isn't great but they're going to do that anyway um so but i'm not making any predictions about what they're well not making any predictions about what they're going to hold about same-sex marriage or or related sort of rights to that one um i will make a prediction that with respect to the right to contraception is already lost uh because the anti-abortion movement's position is that most effective forms of contraception are actually a board of patients and so will be banned and that will be subject to rational basis review so that's a grim prospect um but yeah that's my that's my positive take is that things aren't predetermined because it's not really coherent all right so i think that's my time i did have some notes about the law in colorado but i'll hold those and see i know but i'll save it too much to go into thank you so much professor hendrix um so sir eric olsen i've got this to pass to you thank you very much thanks very much and it's wonderful uh to be here with all of you again this is a real highlight of my year to do this most years so thanks again for having me here i want to build on a little bit of what professor hendrix talked about but focus more on um sort of the one real rare sort of series of progressive wins at the court this past year um and talk about some advocacy lessons that all of us who don't necessarily spend all our time in front of the supreme court can learn from what made those successful but before i do that i i want to talk a little bit more about something uh that professor hendricks talked about which is really the supreme court um talking about a lot of the questions are who decides and and we see that that that who decides question often framed as a procedural uh inquiry in other words the same standard applies it just who decides but i think what we've seen uh in the states after dobbs is that who decides also brings a lot of substantive impact on the outcome of these decisions and um this term and over the the past this is the first full term with like the the sixth justice super majority but focusing on you know as between the congress president supreme court i think we know from this supreme court how they view things which is they decide everything um and that they've invented some doctrines or or rehabilitate some doctrines like uh the major questions doctrine which you know does not appear in the constitution but nonetheless is used to admit uh to limit the ability of the president the executive agency uh to do things uh there's a number of other sort of similar limitations that this court has embraced um that really arrogate to the court itself the power to be the ultimate decision maker and in so doing because of the procedural process that the court uses creates significant uncertainty about the scope and availability of the congressional and presidential powers mark lemley who's a professor at stanford just came out with a paper last week talking about the imperial supreme court which really sets out sort of this thesis really well um and i would encourage you all all to read it secondly on the second dimension sort of the states and federal government and this is where i really want to build on what professor hendricks talks about which is the court in allocating who decides among the states and the federal government often does so in a way that has significant impact on the actual lived experience of people who have to live under that decision in um we just heard about dobbs but but i'd asked to take a a little bit step of abstraction and and talk about a constitutional right that is contested some people view it's not in the constitution of people states in the constitution uh uh the the proponents of that right feel that it's rooted in liberty and freedom uh and sort of a core value of america uh and the opponents of that right their main complaint is that when that right is exercised americans die and in the abortion context that's very much how the debate is framed but it also applies to bruins the second amendment context right where you have the sort of expansive right that by definition the more guns we have in our society the more people will use it uh to die by suicide and more innocent people will will die and it was striking to me that in dobbs they played such um as fascinating talked about talked a lot about the the the um the impact of the potential life of the fetus as as as a basis but but they didn't excise it they sort of use that to do much more damage and that that same concern occurs nowhere um in bruin and there's sort of no parallel recognition and so in the who decides question what the court has done in in dobbs has basically said you the states with no meaningful limit from any federal supervision can do whatever you want here as disruptive the rational basis standard is so easy to meet as it can be and in bruin they've done exactly the opposite they said you the states local governments cannot do anything about this issue that you view as a serious public health threat and is really impactful of your schools your communities the way in which your constituents interact with each other and so i'm not a law professor so i sort of just throw my hands up and say you know so they're you know it's just them getting the outcome they want using the tools they have um but with that framework i want to talk a little bit about the decision between who decides on the court and arbitration front and what we've seen recently is that most of the this who decides question is really a proxy for corporations or individuals that arbitration although there's been some creative plaintiffs firms that have used mass arbitration uh well but by and large it's seen the who decides question really isn't a procedural question it's a is there a remedy question or is there a real remedy uh question and so the court um had four arbitration cases this term which is above average um and i'll talk through each of them uh in particular at a high level and then we'll go into some of the empathy lessons from them but the first one that they held was badgerow which basically said most circuits have said there's a special rule that gets you into federal court if it's about arbitration and here in badrill the court said no no the typical rules apply you don't get a special pass to federal court most arbitration most when you're trying to enforce an award uh in court which is really the only way you can get something out of arbitration because otherwise it's a contract to give you something you go to court to get what you need if the party won't comply here the supreme court said you know what you can go to louisiana state court to enforce your award even though louisiana state court is much more solicitous of claims of being fraudulently induced into the arbitration contact it will give employees more ability to question the merits of the underlying arbitration the court said that's fine you plaintiff can go to go to state court uh you don't have to go to federal court so that was a big win uh for the sort of progressive folks in in terms of allowing a meaningful check on some of the abuses of arbitration the next case um was morgan um this is um the case about a taco bell franchisee um where they filed the employee wasn't paid overtime was the claim uh filed a class action lawsuit um the the taco bell franchise thought that they could get classified relief in their favor uh by letting this lawsuit play out they'd win in class action and then not only would they foreclose the ability of that employee to get any remedy but they would foreclose the ability of any employee in the class to get any remedy well they predicted their prediction wasn't quite right and after a little over a year they realized they actually might lose the class action so they ran to court and said oh we have this arbitration agreement we have to go arbitrate can't be in court uh and most circuits had a rule that said hey there's a special provision you can always invoke your arbitration provision there's no waiver or the waiver you have to show prejudice it's really hard to show and the court said actually no that the right to arbitrate is just like any other contractual right and you can waive it uh and it's sort of the knowing and voluntary waiver of a right uh and and you're done and so that not only in that case allowed for the employee to likely recover on a class-wide basis for overtime violations which is one of the things that that arbitration is used to prevent but also made it much easier going forward for uh employees to get out of arbitration uh agreements if the company doesn't aggressively assert the the the waiver right and it prevents gamesmanship uh by companies um the third arbitration case was southwest airlines where there's an exception for transportation workers cannot be forced to arbitrate their employment claims and the question is what does a transportation worker cover the southwest airlines claimed that it covered people who are flying or driving things in between states uh very narrow and the court here this was a case the case was about a ramp supervisor at southwest airlines who was largely supervising but sometimes helping load luggage onto the bottom of planes but stayed in one place never went across the state line and the court said you're covered uh 8-1 that that person cannot be forced to arbitrate so they they was a victory for for sort of the employees because they expansively interpreted the exception of the arbitration act and then the fourth uh case was viking river cruises where california has what's called the private attorney general act where they uh similar to what texas did in senate late but they basically say we are going to empower residents of california to enforce our laws and collect our penalties when you have a company that's violating the laws and the viking river cruises arbitration agreement said you have to overtake your disputes and by the way you can't bring any of these private attorney general actions in your arbitration um and the court said that that was permitted that they you can force the waiver of these sort of state private attorney general causes of action in arbitration that was really the one loss uh for the the um the folks representing employees against you know the man if you will um in these cases and i was really struck because um there was really no other part of the court's term this year where where sort of the underdog won uh right it was sort of devastating and so many fronts so we're gonna hear about some more uh in terms of some of these decisions and i went and looked really closely at like what it was about these um decisions that sort of led to this outcome and there is no grand theory or the best grand theory i could come up with uh in helen's sermon says a few times that the court evidently had sort of a budget for mayhem this year that they exhausted in other cases and decided they weren't going to spend any of that capital here but but there's no coherent uh doctrinal reason that i can see why this came out the way it did but when you look at the arguments of counsel um it helps that these aren't you know super front page hot button issues but nonetheless each of the council in the three wins uh did something that was worth noting and sharing that all of us can learn from so um again i just color close the the the blue or the progressive wins and the reds are the losses but in badrow i was really impressed um with uh dan geyser was the council record he's part-time here in denver hazel boone part-time in texas and um he was a petitioner and when you're the petitioner in the supreme court you get 13 000 words to make your case and dan said this is a really important case really big deal how many seven thousand words right his brief was basically half the length of what it could be um because he focused on his two key arguments and let the other ones go um and you know we have a brief due in supreme court next week we are not going to be at 7 000 words like 18 000 words right now so you know it's not a lesson for all times in all places but but in a high stakes case to have the courage to say hey i don't need everything it's a reminder to all of us that do what you need not what you can um in morgan this is a taco bell case it's a hard question because you have the federal arbitration act saying our phishing favored all this stuff a lot of circuit courts have said uh there's a special rule for waiver a lot of said there haven't i mean it's a real circuit split case paul clement uh represented uh taco bell um in this case and he's argued a hundred cases of supreme court really well-known advocate but he has one speed which is i am right and you are a it's how he sort of presents his case every time right and and so this is how in this hard case where the circuits were divided sort of he opens his brief with the court basically attacking the plaintiff personally and calling using fanciful language you know one can imagine a punitive rule being imposed by hypothetical act right it was a really hard he lost eight one right on this and and when you i think pretend that hard cases are easy you really do a disservice to both yourself and helping the court do what you can reach the result that they want to reach which is to get a hard case decided correctly and then the flip side is in southwest airlines is argued by jennifer bennett who's a partner at gupta wesler in san francisco it was only her second supreme court argument and it is by a mile one of the best supreme court arguments i've ever listened to or read she was exceptional in so many ways and two things she did that were that were really i thought well done was she got really hard questions about her case and she said that's hard right here's why i think i'm probably right right but but really gained so much credibility with the court and was viewed as someone who is helping the court figure out this hard question as a trusted advocate rather than preaching to the court about what they should be done she did it again uh in another question from um from from justice kagan and say hey the second thing that that jennifer bennett did really well was she knew the record cold and here went on to say it happened in 1972 and here's how they handled it happened in 1984 and here's how they handled it but really knew her stuff uh incredibly well to the point where and this was one of the more remarkable exchanges in the argument you know justice alito has a recommendation has a reputation of being a real let's just say he does not approach oral argument with a customer service mindset right he is sort of a jerk and snarky and trying to catch you in traps and even he was just like hey so tell us what you think we should do right and then her answer here was quintessential extraordinary answer which is uh three short sentences boom boom boom done right she knew what was coming she knew how to get her answer across really well and had turned someone like justice alito who's normally looking to score points into him saying well what should we do here and if you can turn and judge into that you've done your job so um that's the brief glimmer of hope we're gonna have today about some takeaway lessons that we can uh learn from this past term happy to talk about any of these or the relationship um in the time for q a but i'll turn it over to professor norton good afternoon it's great to see you all i'm going to talk about two religion cases where the court continued its contraction of the establishment clause of the scope of the establishment clause and then i'm going to talk about the second amendment case where the court extended its insistence that historical analysis is the only way to solve certain constitutional problems so i'll start with carson versus macon this is a case that revisits long-standing controversies over whether and when the constitution permits or instead prohibits the government from funding religious institutions or religious activities now the constitution of course the first amendment a lot going on in the first amendment speech press assembly petition two religion calls clauses the establishment clause the government can't enact laws respecting establishment of religion and the free exercise clause the government can't prohibit the free exercise of religion now you might summarize or understand these causes to mean that the establishment clause prevents the government from sponsoring religion and that the free exercise clause prevents the government from interfering with religion and it turns out that folks have different views about what it means to sponsor religion or instead interfering with religion number of possibilities for managing this tension that have emerged over the years for much of the 20th century the establishment clause was understood to prohibit the government from funding religious institutions religious activities like religious education but 20 years ago the court said no the establishment clause permits the government states or local governments to choose to provide vouchers for parents to pay for tuition at religious school ones that's part of a state or local government program that supports private schools both secular and sectarian so the court has held for 20 years that the establishment cost permits states to choose to provide tuition support for private religious schools alongside private secular schools now in carson versus macon the question is now whether or not the free exercise clause requires the government to fund religious schools alongside private secular schools and there are six to three court held that the free exercise class does require here the state of maine to provide funding for religious schools when it funds secular private schools and in so holding it rejected maine's separation of church and state concerns about using state funds to fund religious education maine had a program that provided tuition assistance in other words financial support for families who live in school districts that don't have a high school of their own and it turns out this is a big deal maine is the most rural of all the states so this is a lot of school districts and this is a lot of families and under maine's program parents in school districts without a public high school they identify the high school they'd like their kids to attend that could be a public high school in some other district or that could be a private school anywhere and the program provided the government under the program the government provided tuition support for attendance at private high school so long as two things were met first the private high school had to be accredited which required certain curricular requirements and the sec and second the school could not be sectarian in other words it could not be a school that promoted or taught religion so some parents who sought tuition support to send their kids to religious schools but were denied under this program brought a free exercise class claim he said maine is discriminating on the basis of religion it's violating the free exercise clause and maine argued that it had an important interest in preserving the separation of church and state that the religion clauses should be understood to permit it if it so to chose not to use taxpayer funds not to use public money to teach and promote religious practice and a six to three majority found that maine's refusal to provide financial support for religious schools as part of this program was discrimination on the basis of religion that it triggered strict scrutiny and that maine's interest in preserving the separation of church and state was not a compelling interest so it failed strict scrutiny now before carson versus macon the court's precedent permitted but didn't require states to include religious schools in these programs so it left it left the choice up to the states now that's no longer the case the court now understands the free exercise clause to require states to include religious schools when it funds private secular schools justice sotomayor disagreed in her dissent she stated quote the court now leads us to a place where the separation of church and state becomes a constitutional violation and for similar reasons justice breyer and his dissent asserted that the majority had largely read the establishment clause out of the constitution even though the establishment clause is the first of six express clauses in the first amendment justice breyer understands the religion clauses as the whole idea he thinks is about preventing religious strife right when you think about the religious strife that occurred to in europe before many of the folks who first sailed across the sea to start communities in massachusetts and virginia and elsewhere and he saw maine's reluctance to directly fund teaching and promotion of religion as seeking to prevent that sort of religious strife under the concern that lots of religions are not large enough to have private schools of their own they might feel excluded and alienated taxpayers may be unhappy at funding the promotion of religious beliefs with which they disagree so we still we see these sorts of tensions between the free exercise clause and the establishment clause in another case kennedy versus bremerton school district same six to three majorities again very quick to see free exercise clause violations and very slow to credit establishment clause concerns this case involved a football coach at a public high school who was disciplined eventually terminated for his post-game prayers at midfield the majority in the dissent disagree about the facts and thus this disagreement also drives their disagreement about how to frame and resolve the legal issues justice gorsuch writing for the majority describes the facts as involving a coach who offered quiet private prayer at midfield of thanks ready for the dissent justice mayor took issue with justice gorsuch's description she included in her descent photos of the coach leading dozens of players in prayer at midfield and she described this as a highly public display quote where a school official engaged in a tradition of leading prayer and ministering religion to students as the public watched again those different framings of the facts lead to very different conclusions about the strength of the school's establishment clause concerns mr kennedy the coach brought both a free speech clause claim and a free exercise clause claim those have different doctrinal analysis the long story short is that under either of those claims we've got to assess at some point the weight of the school's interest in avoiding establishment clause violations the majority found no establishment clause concerns presented by the facts of this case so found that the school's discipline of the coach was unjustified under either claim and most of the attention surrounding this case has focused on the majority's very narrow view of the establishment clause and among other things here the court overruled lemon versus kurtzman which is a 50 year old case for assessing establishment clause claims and this has several prongs it looks to the government's purpose when it acts with respect to religion it looks to the the effects of the government's action with respect to religion it looks to whether or not the government is entangling itself with religion and over the years the court has developed several approaches for implementing lemon for making it work in action non-coercion analysis which is the last of these bullets on the bottom of the page asks whether or not the government's action has the effect of coercing religious practice in other words does it coerce for example folks to pray when they don't want to pray and this approach understands the establishment clauses primarily about individual autonomy about folks freedom to choose whether and when to engage in religious practice everybody on the court then and now agrees that the government violates the establishment clause when it coerces religious practice but justices then and now disagree about how quick or how slow we should be to see the government's coercion and in this case the majority saw no coercive potential in the coach's prayer it distinguished earlier cases where the court had found school-sponsored prayer to be coercive cases where a school incorporated prayer into a graduation ceremony a case where the school broadcast prayer over the public address system before a football game where students were required to attend majority found those facts distinguishable from this case it described this case as involving the coach's prayer in this case is private personal and voluntary the dissent disagreed arguing that the coach's prayers had great coercive potential emphasizing schools course of authority over students young people's susceptibility to social pressure by peers by coaches by teachers and expressed concern about the fact that student athletes might perceived their playing time or other advantages to turn and part on whether or not they pleased the court so that's coercion analysis it remains in play but the majority is very slow to see it very slow to see the government's coercion the majority also went on to entirely reject non-endorsement analysis this is another approach that the court had used to implement lemon this approach was developed by justice o'connor in the 1980s and it asked whether a reasonable observer would understand the government to be endorsing religion in ways that communicate to non-believers or to religious minorities that they're outsiders that they're second-class citizens and this understands the establishment clause to be not only about individual autonomy for sure but also to be about equality and inclusiveness and here the majority overruled those cases arguing that non-endorsement analysis has no basis in constitutional text or history so no longer will the court assess whether or not the government is impermissibly endorsing religion instead it's going to assess establishment clause claims by reference to quote historical practices and understandings so the majority announced historical analysis as the key to establishment clause claims going forward the historical analysis that announced in dubs the historical announced analysis of announcement bruin second amendment case but at least in this particular case it didn't uh provide any detail or guidance about how to how to engage in that analysis so long story short the majority's decision in this case dramatically shrinks the scope of the establishment class first by narrowing coercion analysis and second by abandoning non-endorsement analysis okay finally moving from the first amendment to the second amendment and a thread a connection um between the case i just discussed kennedy versus bremerton and new york state rifle and pistol versus bruin and also with jobs is the majority's insistence that historical analysis is the only way to think about a growing number of constitutional problems now in bruin the parties agreed that the second amendment as incorporated by the 14th amendment protects the right of ordinary law-abiding citizens to carry handguns in public for self-defense outside the home heller and mcdonald established the right to possess handguns in inside the home this is outside the home carrying handguns in public areas and the question here is whether new york violates that right when it requires those folks who want a license to carry a gun in public areas to show some special need for protection the six to three majority here announces that the only way to answer this or any other second amendment problem is through historical analysis quote the government must affirmatively prove that it's a firearms regulation as part of the historical tradition that delimits the outer bounds of the right to keep and bear arms and the majority says historical analysis is more legitimate and more administerable than asking judges to make difficult empirical judges and cost benefit judgments and cost-benefit analysis so it rejected the application of quote any judge-empowering interest balancing and so for this reason it rejected the intermediate scrutiny test that the courts of appeal had been using in second amendment cases up until this time it then applied historical analysis and it found no regulatory tradition of preventing law-abiding citizens with ordinary self-defense needs from carrying arms in public areas both parties as you can imagine offered lots of historical evidence the majority found that some of new york's historical evidence was too old to shed light on this question that some of new york's historical evidence was too recent to shed light on this question that some was too limited or distinguishable the descent in contrast looked at the historical record and reached a different conclusion it found support for a 700-year anglo-american tradition of regulating the carrying of firearms in public so among whatever you think about historical analysis the majority's claim that it will make hard cases easy is inaccurate now the dissent quarreled not only with the majority application of historical analysis but also with the majority's threshold insistence that historical analysis is the only way to think about these problems and justice breyer's dissent identifies historical tradition to be one of multiple available tools for thinking about these sorts of constitutional problems but not the only one nor the best of them so the dissent among other things would consider democratic self-governance would consider pragmatism would consider purpose as additional tools for thinking about the second amendment in other words tools that would permit legislatures to consider and respond to the dangers and consequences of gun violence of the sort that that eric talked about this dissent also doubted court's competence as historians and and worried that this would place um unusual pressure on lower courts to try to work through this analysis so these um what does this what does this mean for future gun control efforts these are the possibilities that the bruin majority specifically discusses or that justice kavanaugh also discussed in his additional concurrence i don't mean to suggest that these exhaust the possibilities i'm just flagging those that were specifically discussed in the majority's opinion open to restrictions on gun possession by felons or the mentally ill that was articulated in heller open to the licensing regimes in colorado and many other states where you can get a license based on a general desire for self-defense no special showing but you might have to go through a background check to make sure that you are in fact a law binding citizen you might have to go through a safety course the majority signal that that should not be a problem that you could find a lengthy historical tradition for those sorts of regulations but the majority said there could be a problem though if you have to wait too long for your license or if you have to pay too much for your license and the majority also talked about long-standing historical tradition of regulating firearms in sensitive places like legislatures courtrooms and polling places and left open the possibility that maybe we can define the historical tradition in a way that allows us to add to that list of sensitive places i look forward i'm grateful for your patience and i look forward to the discussion thanks so much hi everyone so as you heard i'm mark tatici i'm going to talk about some cases three cases that talk about the limits of federal power and federal administrative authority um the two copied vaccine mandate cases and then the west virginia versus epa case which talked about the federal clean power plan i think eric foreshadowed this a little bit talking about the major questions doctrine because that figured heavily um in two of these three cases so we'll get into it and talk about the broader implications at the end so the first of these is biden versus missouri this is one of the three sorry one of the two coveted mandate cases and this one hhs required the employees of hhs are government-funded healthcare institutions to be vaccinated against covet 19.
and the question was whether that was permissible this came up in an estate posture that was something that was the an interim rule was published in november of last year it was then stayed the fifth and eighth circuits i believe declined to lift that stay and then the supreme court on an expedited basis considered whether it should stay those injunctions of this order um and as a slide notes the court decided that yes in fact the federal government had this authority um it's a procurement opinion so we don't know who the author was but it was uh five um you could tell from the dissents that it was five justices in the majority separate descents by justices thomas and alito justice thomas's descent really focus more on the substance saying that this is not a power that you can um exercise it's not authorized by the statute and justice alito's was really a little bit more focused on the procedure saying that you don't have the um you didn't use the appropriate procedural mechanism to get this as an interim final rule as opposed to go through the normal notice and comment rule making mark yes sorry i don't know maybe you could use helen's mic there's a few people on zoom so they can't hear you it's not yeah no just passing that message along i don't know if that will help is that any better i don't know we'll see in a few seconds we'll see thank you for yeah sure um so the the majority's rationale is that the uh that this is something that fits comfortably within the the statutory text the majority and the descent have a bit of a quarrel about this but the main authorizing statute says that hhs can and in fact must prescribe rules and require facilities to adopt rules that uh an infection prevention and control program and that's what the majority relies on and says that just like you can mandate washing hands and all sorts of things to manage the spread of infection in health care facilities the the government can require hospitals especially given the vulnerable populations that often find themselves in these facilities it can require them to be vaccinated to prevent the spread of covet 19 within health care facilities justice thomas notes in his dissent that five of the different kinds of facilities don't have an authorizing statute that requires the main maintenance of these kinds of infection control mechanisms the the majority waves that often says that that would be allowing um the tail to wag the dog and says you know those are only a few percent of the total population that are served by these facilities so essentially no big deal and just waves off the concern without really responding squarely on the merits of the textual analysis so the second of the three cases um is the nfib versus osha now this is the employer mandate case for for large employers this um regulation required by osha required employers with 100 or more workers to require their employees to be vaccinated the the catch or one of the problems that the court had in this was that there was an alternate procedure that was available you could require a test and mask procedure if anyone declined the to be vaccinated but employers weren't required to offer that it was it was an employer choice it wasn't something that was truly an either or requirement of the of the regulation it was something that employers could choose at their election the court said again in this this one again procurium again the sixth justice this one the sixth justice majority that this rule was invalid um a lot of the action actually though comes in justice courses just concurrence which we'll talk about in a second and then the dissent in this one written by uh justice breyer and so this is really a clear statement rule case this is where the major questions doctrine first really rears its head this term the court said that if you're going to allow an agency to decide for itself something that is so significant that has such significant impacts on such a large swath of the american population we'd expect congress who've actually said so in so many words it's not something that we can read between the lines or read into a broad general grant of authority but whenever congress is going to speak who's going to confer this kind of authority um they're going to actually have to say so very clearly and this is something that justice gorsuch again refers to in his concurrence as the major questions doctrine um the majority's problem is that you know if you take this sort of view that anything that's a public health problem or public safety problem that also happens to overlap with the workplace or can occur in the workplace that is a slippery slope that then leads to federal regulation or federal mandates for any number of concerns that would entrench on police power and so and sort of takes a both a separation of powers and federalism angle here and says when congress wants to do this it's going to have to speak very specifically to the problem and again justice gorsuch's concurrence is more interesting in some ways than the majority because he really links this major questions doctrine also to the idea of um the non-delegation doctrine which is a broader more constitutionally rooted doctrine that says you know there are some things that congress just can't delegate there there are limits to what congress can assign to an agency or to some executive branch official to decide and do um and and really seems to be drawing a line in the sand for congress to say you're going to have to really do your job you're going to have to do it in the first instance when you pass the statute you're going to have to update your statutes over time we're not going to do that job for you by allowing agencies to just interpret and reinterpret and reinterpret as as years and decades go on to to address new and divergent situations as they come up you're really going to have to actually um speak clearly to these new circumstances as they arise and footnote by the way there are going to be some circumstances where we tell you you can't do it at all and you congress are going to have to speak to all the minutia directly you're not going to be able to outsource it to an expert federal agency that has public health expertise or employment expertise and and you know again the main benefit of agencies has the additional expertise and specialized knowledge that 535 elected officials in congress um decidedly lack um and so we'll talk the last of these again a major questions case west virginia versus epa it's a this is a the case about the the clean power plan the clean power plan was interesting because it was a again everyone i think agrees it was a novel approach by the epa to manage greenhouse gas and climate change effectively requiring greenhouse gas intensive coal plants to subsidize the development of lower emissions power generation whether that was through natural gas or clean renewable energy sources and so the question the fundamental question is whether um the epa had the authority to not just put in place use scrubbers use better technology on your own plant but actually could force power generation companies to move to subsidize the creation the operations of their competitors essentially and eventually over the course of time shift the balance of the energy market in the united states away from coal and to other forms of power generation and again not surprisingly in a six justice opinion written by the chief the the court concludes that no epa did not have this authority again this time the major questions doctrine moves from the concurrence expressly into the majority and the chief says this is a major questions case um this is something that's very consequential we're talking about fundamentally reorienting the us's energy industry we're talking about picking winners and losers in that industry um for generations to come this is not something that's within the bailiwick of the epa you know that there there may be other agencies that are better suited to make these kinds of determinations the epa even asked for special emergency funding because it lacked the expertise to do this the court pointed out and so it was not you know it was not something that you could read into its its general grant of authority to manage these kinds of pollutants the ability to to reorient um the economic structure of the energy industry in this way um the the more interesting i think question here for the long-term sense beyond the fact that this is for those who are concerned about greenhouse gas emissions and climate change and what the federal government can do to manage this on a national level but for future cases you know the major questions doctrine is one that's um is going to seem like it's going to be recurring more and more i think as eric was alluding to a little bit and i think you know maybe this dovetails a little bit with one of the things jennifer was saying too it seems like the court puts the rabbit in the hat a little bit and says that you know well the major questions doctrine is triggered in cases where we don't think congress would have just delegated this authority in this way but again you sort of have already answered the question at that point because if you're using if you're deciding whether to apply the doctrine based on whether you think congress would have written the statute this way you've already decided because you're never going to say well the congress probably wouldn't have written this way so let's look for an extra clear statement of intent that they did because you've already answered it and so it really looks like at the end of the day your risk of this boiling down into something where it's justice's own preferences or their skepticism of agency decision making that's going to be driving their application of this doctrine in future cases um you know they really don't lay out in these cases anyway what the what the criteria are that they will apply and uh you can't really just say well it's something of great public significance because that's you know everything that you know any number of federal agencies do would fall into that category so they're going to have to think work very hard in future cases to make this appear at least has a legitimate administrable doctrine and not something that's just going to come up every time there's a novel assertion of authority or an application of traditional authority to a new set of facts and i guess the one last point i'll make is to tie this back to the biden versus missouri case you know why wasn't that a major questions doctrine that wasn't something that was discussed in that opinion but you know you can speculate that it just was a much narrower swath of of people affected if you're trying to make this look at this through a legitimate lens you say look that was just something that was very squarely within hhs's traditional role you traditionally can prescribe rules for healthcare facilities that are funded by the federal government this is a rule for health care facilities funded by the federal government there's at least a plausible connection to infection infectious disease management and control which is something hhs typically does in those policies that requires hospitals and healthcare facilities to adopt so there is more of a nexus there and but i think that you know the real answer the one that's you're going to see is the the rule of thumb or the the gut rule that you're going to see in future cases is is this a big case or not is this something that is a big deal or not and that's when you're going to see the major question dr rolled out and that's when you're going to see the court say no congress need to speak to this more specifically and if justice gorsuch has his way um you know as he flagged in his concurrence in the osha case you're going to see some circumstances where the court's going to increasingly say the agency can't do this at all congress has to regulate it directly itself the chief really is seems on a campaign over the course of many years to shrink the scope of the federal administrative state so he's probably there too and so that's already four and so you're just looking for five at that point if you're justice gorsuch or someone else is similarly motivated inspiring thank you [Laughter] um yeah thank you so much to all of our panelists for these uh really nice summaries of these cases hopefully uh many of you are familiar with these cases you've been watching the term if not hopefully you've learned something new and thought about this in a new way and maybe taking away some broad themes i hope some positive things because i like to bring some sense that the law still matters and the court's doing good things that can help improve our world but we've heard some ways in which maybe that's not the case um there was a question actually that came through here um from zoom and if there's questions in the audience please raise your hand and i will get you and i think i may walk a microphone around because i want to make sure that people can hear that one of the themes that came through several of these cases not all of them but is this idea that the courts heavily focused on history rights that are deeply rooted in america's history and tradition the history of the free exercise clause and gun rights and the question um says with so many cases citing historical analysis is the only way to answer constitutional questions how do lawmakers ever have an ability to write new laws with new solutions doesn't this analysis approach lead to absurd results i realize we're all lawyers here and not legislators but i think the the person asking the questions hoping he'll put on maybe a legislator hat or how do how are we innovative in this environment if this is what the court's going to do uh at every challenge in every way and i just an open question for anybody who feels compelled to opine all right professor norton's got something i i really i really appreciate the question i've been thinking about it um as well and i guess one of the things that we have to to think about that i think about is the way things are today are not the way they always have been the way things are today are not the way they always will be um and when you look at uh early cases in a series of cases and i don't know where we are in this series of cases but let's say we're early and the court's sort of thinking about history is the way to go the early cases are not always the best cases right so there's a learning curve and there's throat clearing and things like that um and i think there are many critiques of the court's reliance on historical analysis right it claims that it's more administerable it's not right it's folks fighting about history claims that it's um more legitimate read the dissent in dobbs it's it's not why why should we be bound by the views of the ratifiers of of the 14th amendment 1868 about the scope of reproductive rights when they did not include um women uh the the court prefers this basically because they are afraid of judges i mean i think they're very quite clear that this is this is a choice that is motivated by distrust of judges and the court and the majority talks about it's disdain for judge empowering balancing tests and so the court is saying we want to have a baseline for decision making that will bind unaccountable judges and this is what we've come up with which is not the same as saying that this is a good rule right it's not saying that it's a quality rule it's saying that we trust these decision makers more than we trust these decision makers but when you think about constitutional law right it's all about the big picture purpose of constitutional law is coming the framework for a healthy democracy democracy which is why i appreciate this question and it's focused on legislators and ideally if you were to take i think the best and most principled approach to history right if we're going to take if we were to try to make lemonade out of lemons right we would define the relevant regulatory tradition in a way that enables us to learn and grow from experience that enables policy makers legislators we the people to learn and grow and develop and a regulatory tradition that is generous enough to reward and not punish learning from experience is the one i think over time that that court should be privileging something so i really like helen's vision of what the use of history in um injurious prudence would look like um and so so as as you've gathered already i'm fairly dismissive of originalism as an interpretive theory i think it's had plenty of time to try to show that it can be useful but that doesn't mean history is irrelevant um so i so i do like that vision of learning from history and i think that could be a very positive one but i would say it sort of in response to the question that the court has left a great deal of room for legislators to work creatively to address social problems it's just in a very one-sided way so in jobs right it's the individual like when we i think of interval individual rights questions as separation of powers questions right there's like the federal government the state government or it's congress the court's the executive and then there's me right so fundamental rights questions are separation of powers between me and the state what do i get to decide about my body what does the state get to decide about my body and when what the supreme court said this term was that when it comes to my reproductive body um i have no rights unless i can justify them according to matthew hale right the witch witch hanging guy but what it said in bruin was the legislature has no power unless it can point to it as something it has done before it's uh this court is not making the state justify its restrictions on abortion by showing that they are historically grounded and that abortion has always been restricted in this way because it has not right and this is another thing you may have seen a headline on benjamin franklin had a recipe and instructions for abortion in like a one of those almanacs he put out for people to keep around their house like right along with how to clean your pots right how to right blocked menses were a thing right at the time of the founding through the 19th century uh so so the court the court in dogs encouraged a lot of legislative creativity in finding ways to make sure that women perform their reproductive duties and conform to their gender roles so this is it's not that the court is doesn't want legislators to look for solutions to problems it's just i don't agree that the things that things are problems are problems um so so so i i like the vision i have a more um beaten down sense of where we might be on the course to that vision i'll just add one more to that if i can and just what's what i feel like gets eliminated from the historical accounts so much of the time is just the historical understanding that at the time of the founding and framing and even when the post-civil war amendments were enacted you didn't have state or local government able to just as a practical matter intrude so deeply into people's lives the balance of state versus individual liberty was just so fundamentally different then the scope of what a state could do was to was talking about you know taxes and just making sure the roads were sufficiently you know not potholed that you could roll cart down the street i mean that was the extent of state government for a lot of places in 1789 and you know the idea that the court sometimes says well unless there was a restriction the state can do literally anything i can think of under its general police power i think is sort of not sufficiently constrained by the historical understanding that most decision making really was was personally personal autonomy driven personally family community driven at the time not something that rested with the state or even with a local government carter we've got a cu student carter hilty i have a ques oh whoa okay um i'm curious because there were a lot of like firsts like particularly dobbs seemed like a sort of like the court being willing to reassess doctrine from like 50 100 years ago i'm curious if in your view this has established like a very predictable course of decision making where they're always going to follow this sort of new ideological line they've established or if they've sort of opened the door to all kinds of like wacky reasoning and new ways of assessing these big problems i'll just jump in quickly and say that uh the court has um you know already granted cert on or on the independent state legislatures doctrine case for the election law experts which is something that didn't have very many adherents you correct me if i'm wrong we didn't have many adherents not before one or two election cycles ago and is now on a you know on the fast track to the supreme court and you know already has some defenders among the nines so i think yes the re-examination of sort of what had been taken as um fundamental accepted bedrock truth among um supreme court practitioners and court watchers and scholars is is i think going to be the norm for a while and i would just add more pragmatically that um i think mark limley lays this out well in his his article this court is going to do whatever it can until our institutions stop it in some ways and you know there are there are lots of existing ways to stop it some members of the court are really focused on you know public perception and their authority um but i i would just self-restraint is not an attribute that is widely shared on the court nor is intellectual humility um and so i i i think that there's a real need to think about how you contextualize what the court is doing in our larger republic um and make sure that we're all uh using the tools that we have in at our disposal to um keep the least democratic branch of our government from uh taking more power for itself but it's a real challenge we have a case that helen and i are working on in the fall at the court and it's hard to how do you argue in front of a court like this when when you know there is no precedent um and you you basically um have to explain you know the mayhem that will result um and and it's a real challenge and it's a real uncertain time and and somewhat scary um but but i do think this opportunity to to use existing tools not just argument tools but leverage tools we have uh to constrain some of the worst tendencies of the court um and as helen mentioned you know we're early on in this journey and i think they're gonna get it better you know they recognize some of the imperfections and and uh things they improve um even if we stay on this path okay you voiced an opinion um or reviewed um professor hendricks that jobs treats women as second-class citizens um but roe was decided by a court that consisted of nine unelected white men and from reading a leader's opinion the court appeared at least to be very concerned with reducing its power and returning power to the people and thereby women in fact alito wrote our decision returns the issue of abortion to those legislative bodies and it allows women on both sides of abortion issue to seek to affect the legislative process by influencing public opinion lobbying legislators voting and running for office women are not without electoral or political power so if we want women to have a voice isn't good and constitutionally correct for articles one and three of the constitution for the court to return the power to the states where women actually do have a say so women actually have a say in the federal government as well uh so yes i believe in democratic politics i believe empowering women things like the independent state legislature doctrine are being ready to destroy that for example by greatly increasing the power of the states through the senate through the electoral college which are very anti-democratic institutions um and are are one of the big problems in respecting fundamental rights um the ideological question of whether women should be second-class citizens should be relegated to particular gender roles with regard to reproduction is the one that has women and men on both sides of it so there are plenty of women who do not believe that women should be sitting in chairs like this one or that when they do for example on the supreme court they should be using it to advance a an ideology that prioritizes women's reproductive role in women's obligation to reproduce and that is the origin of the abortion bans actually that we're dealing with now from the 19th century um the question of women's political power though is is another raises another issue about the decision there were quite a few passages in the dobbs majority opinion extolling all of the wonderful rights that women have won including electoral power over the course of many decades um uh it was it was um a requiem for intermediate scrutiny that is a prediction that i will make uh for sex classifications right it was a repudiation of the discrete and insular minority john hart eli rationale i hope people remember all this uh for heightened scrutiny for sex classifications um and was to me read as a first draft of opinion that says you're equal now so no more scrutiny of sex classifications if there's any type of regulation that warrants scrutiny of sex classifications it is sex classifications with regard to reproductive biology that is where sex inequality happens is where men and women when and what men and women have need different kinds of rights um whether that's a right against pregnancy discrimination in the workplace rights to childbirth leave that kind of thing or the right to abortion that's where women's inequality happens um and uh it is it is an ideological issue that is connected to much bigger ideologies about the role of the individual versus the state and versus the church that are what we are fighting about now um so i do not think any more than the fact that men have had lots of political power for a real for a really long time means they don't need the first amendment to protect them from the overbearing state when for speech or religion or anything like that the fact that women can vote now doesn't mean we don't need individual rights protected by an independent but politically and democratically accountable judiciary i saw a hand over here in the far corner by the wall and then in the front thank you yesenia just generally um what do you think of the possibility of stacking the court or impeaching any of these justices who um maybe violated their obligations to speak truthfully when they were being confirmed i want to say something real quick which is i think a lot of the more novel exercises of checks and amounts on the court that we have can be stifled by the court itself right and i certainly think that if there's an effort to use impeachment in a way that hasn't been used before that this court will not let that happen right um and so i i think candidly the more effective ways um of reigning in the power of the institution is aid not to focus on individuals because that gets the everyone's back up um and b you know congress has the ability to defund the court congress has the ability to um you know have um justices serve for you know term limits in some way shape or form uh ways of you know taking away a lot of the resources that the court has right now as a way of bringing it back into line but i think anything that goes after individuals is gonna is gonna fail and and make institutional change more difficult is sort of my view i'll add something just to that i don't mind going after individuals however i am against the impeachment argument for perjury during confirmation hearings because i think that lets the senate off the hook everybody everybody nobody said i promised not to overrule roe right they said row is settled law that was a statement of fact it wasn't a promise it wasn't anything um and ever knew it was right everyone knew the whole discussion was including the people who voted to confirm them so i think pretending that there was some deception going on about their views maybe the public was deceived uh but that the prob the guilt there um if the public was misled and deceived was was with the guilt lies with their elected representatives especially in maine appear in the front thank you hi i'm a humanities professor and so uh please forgive my lack of jargon in the asking of my question i wanted to know if any of you would be comfortable commenting on the overturning of the huerta castro case in oklahoma of indigenous the extent of indigenous ability to self-regulate on their own lands and first nation rights i'll just say it shows um how much personnel matter on the court um and i think um it also shows how much i'll say this in a positive way that when we have a court and those who've been to this before i have almost worked this in almost every year so we have a court that doesn't look at all like america that has experiences that don't look anything like america we get we get really out of touch uh decisions and say what you will about i have some some very heavy criticism of justice gorsuch's approach to [Music] uh some doctrinal and constitutional issues but his experience of actually being familiar with tribal concerns of understanding the issues that arise not just as a theoretical concern but something that that he has some experience with i think is really illustrative of how he approaches those and i think the absence of that experience from anyone else uh in the court really shows um and i think that if if we had justices who had even more you know i mean it's kind of embarrassing to say well justice gorsuch bringing all this you know weight and experience uh on tribal issues just because he like lived in colorado and kept his eyes moderately open um right but he nonetheless brings that experience uh to it so i i i think particularly on on on tribal issues that having the firsthand experience where it's not some abstract theory of constitutional question it's about real people wanting control over their own lives in real and meaningful ways that you will see different outcomes and and that justice kavanaugh and barrett uh do not share that same concern one more final question here in the middle yeah do you think justice breyer with his age will consider stepping down in this term i'm sorry not justice briar uh uh he's i might be mistaking my justices there was an older justice i was gonna ask if he was gonna step down but i think i have it in the right i did have a different question if i can just transition instead um we'll just bypass that uh based on mr tatichi's comments that uh in history localities focused on what was best for their own needs um from a federalism perspective can you discuss the dobbs decision and their approach to push this decision to the states as opposed to the federal government you want do you want me to do this one first okay um so i think that you know the the federalism angle on you know dobbs is interesting i think that you know look i i think i think jennifer was right in terms of that even when you have the localities really had localities or individuals had a lot more i think you know freedom to decide these kinds of things historically individuals had a lot more i think freedom to decide these things historically there wasn't an idea that the state was going to come in and regulate any of these things so the idea that you know the idea that a state has general police power over these kinds of decisions yeah i'm not a historian i don't pretend to be but would have struck i think a lot of the framers as really foreign even at a state or a local level to decide that a certain village in massachusetts was going to decide this or the state of massachusetts was going to decide this i think you know the federalism concerns are important i think that that's something that you know in all canada that there was a period in the court's history when it really got away from from some of the core structural norms of the constitution and my i clerked for justice kennedy and he was a really big believer that those structures themselves advanced liberty and i think that there are a lot of ways in which it's true but i also think that there are ways in which those um trappings can be used to cloak a pursuit of particular policy preferences and i think that there are you know there are you know those who think that that's what happened in dobbs um because it was such a departure from the sort of historical framework that the court had used for these kinds of questions in the past thank you all right we're unfortunately out of time i think panelists may stick around if you want to come and accost them and ask them the question that's burning on your mind but can you please join me in thanking our panelists today [Applause] um next week those of you who registered for this event will receive a link um with uh to this presentation and a survey to share your thoughts you're welcome to take that survey now there's a qr code on your table we are planning to do this event again next year and the year after that and you're after that and if you liked something let us know because we're just going to do the same thing we did before probably unless you told us that was amazing i'm glad you brought that person i'm glad you talked about that and vice versa if something didn't really resonate with you please let us know so that our event in the future can be better you'll also receive a link for the cle affidavit for colorado attorneys seeking that credit and we will be in touch with you with other programming efforts so thank you very much have a great afternoon
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