SCOTUS 101: Heritage's Annual Supreme Court Preview


SCOTUS 101: Heritage's Annual Supreme Court Preview

Oct 12, 2023 42 min read

Commentary By

Zack Smith @tzsmith

Senior Legal Fellow, Meese Center for Legal Studies

GianCarlo Canaparo

Senior Legal Fellow, Edwin Meese III Center

Mike Kline (notkalvin) / Getty Images

Another term is here! Check out what to expect when Zack hosts veteran Supreme Court advocates Paul Clement and Lisa Blatt to discuss several of the biggest cases the Court will hear this term.

Zack Smith: Welcome back to another season and another episode of SCOTUS 101. There's a lot happening at the court this term, as there always is, and we'll dive into more details about what's happening at the court in the coming weeks and months. But before we do, we thought it would make sense this week to air Heritage's Annual Supreme Court Preview that I had the pleasure of hosting several weeks ago with two outstanding advocates, Paul Clement and Lisa Blatt. 

My name is Zach Smith and I serve as a Legal Fellow and as the Manager of the Supreme Court and Appellate Advocacy Program here at the Heritage Foundation. We've got a lot to cover today as the court will begin hearing cases for the new term on October 2nd. To help us understand these cases and explain what will be happening at the court, I'm pleased to be joined today by two veteran Supreme Court advocates, Paul Clement and Lisa Blatt.

Paul currently serves as a partner at his firm of Clement and Murphy, and prior to that he worked in a variety of roles in private practice and in government service, including serving as the 43rd Solicitor General of the United States. He clerked for Judge Larry Silverman on the DC Circuit Court of Appeals and for Justice Antonin Scalia on the US Supreme Court. Paul has argued well over a hundred cases at the Supreme Court. Lisa Blatt currently serves as a partner at Williams and Conley and serves as the Chair of the Supreme Court's Appellate Advocacy Practice. Prior to that, she too served in a variety of roles in government service and private practice, including working for many years in the Solicitor General's office. She clerked for then Judge Ruth Bader Ginsburg on the DC Circuit Court of Appeals, and Lisa has argued 46 cases before the Supreme Court. Please join me in welcoming Paul and Lisa to the stage.

Well, thank you both again for joining us today. We're very excited to have you here to be part of this conversation. Several cases this year will have major implications for different areas of administrative law and could reshape the administrative state as we know it. So I thought we could start with discussing several of those cases. And I know one that is on everyone's mind is the Loper Bright case. Paul, would you mind kicking us off and talking about that case?

Paul Clement: Sure, I'd be happy to, Zack, and it's great to be with everybody at Heritage again and it's great to do this with Lisa. This should be a lot of fun. The Loper case is a great place to start. This is a case that is near and dear to my heart. It's part of my growing pescatarian practice. I've had other cases involving lobsters and the North American right whale. I have a case going on right now involving Rice's whale, which is different from the North American right whale. And this case arises out of the federal government's regulation of the herring industry. And part of the reason that I'm able to have a pescatarian practice is, because as with a lot of other areas of daily life, the federal government intensively regulates this particular industry.

And in particular, what gives rise to this particular case is that they regulate both the fact that, and this really emanates from congressional statute, they require the vessels to, at the government's insistence, carry monitors who take up precious space on the ship and their whole job is to make sure that the vessels are following all the various federal regulations. So you can sort of think about this as the maritime equivalent of the forced quartering of British soldiers, but they have to give over kind of precious space on the vessels and that comes right from the statute. But what doesn't come from the statute is the requirement that the vessels themselves, the fishermen themselves, have to pay the salaries for the federal monitors who are monitoring them for compliance with all the federal regulations.

And that's really the thing that has, I think, stuck in the craw of a lot of the people in the fishing industry because it's a big enough imposition on your liberty to have to carry these federal monitors but then to have to pay their salaries is adding insult to injury and also gives rise to this case because nothing in the statute that provides for this having to pay for the salaries of the people who are ensuring your compliance with the law. And so this gets litigated up through the DC Circuit. There's actually a parallel case going on in the First Circuit and the DC Circuit decides this case squarely applying the Chevron Doctrine and the majority of the DC Circuit panel concludes that the statute is ambiguous. It's step one of Chevron and then it's step two of Chevron, defers to the agency and Judge Walker dissents in this case and essentially suggests that the Supreme Court itself has largely walked away from the Chevron Doctrine so the court shouldn't be deferring in this particular case.

And we went up to the Supreme Court on cert petition that presented two questions to the Court. One was specific to the particular statute at issue here, and then the second question asked the Court whether they wanted to overrule Chevron or substantially narrow it. I think part of the reason that this case has generated a lot of interest even among people who don't fish, is that when the Court granted cert this case, they limited the certiorari grant to the second question. So it was a pretty clear signal that the Court was interested at least possibly in reconsidering the Chevron doctrine, which is something a number of justices had called for in separate writings.

The government recently filed its brief, we filed our brief about a month and a half ago, and that's really where the briefing is focused. There's some discussion of the particulars of the regulatory regime, but most of the focus is on should the Court step away from the Chevron Doctrine or substantially narrow the doctrine. And then the government, of course, comes in and says, this would be, I think their word is convulsive, if the court were to reconsider the Chevron Doctrine. So just to sort of give you a pitch for why this is such an important case is that the Chevron Doctrine, I think, you can think of it as a doctrine about administrative law. You can think about it as a doctrine about how the Court should go about interpreting statutes in context where the administration, the Executive Branch has interpreted the statute.

But I think more than anything, it's really a case about the separation of powers and how power is allocated in our system, particularly between Congress and the Executive. Because what's happened, I think, over time is that the fact that if Congress creates ambiguous statutes, the Executive has a lot of leeway under Chevron to interpret them one way or another. I think over time, it's really created this dynamic where Congress has very little incentive to legislate clearly. It's just so much easier for Congress, they get to a certain point, they compromise, and then at any given time about half the members of Congress have allies in the Executive Branch. And at a certain point they figure, well, I'm not going to compromise anymore because, a, compromising is difficult, compromising could make me look weak. I could get a primary challenge if I compromise and if I just kind of keep it fuzzy and vague, I'm going to get what I want with my friends in the Executive Branch. And so it creates these long-term incentives.

And then, of course, what happens is about roughly every four years, we have a presidential election. As a result of the Chevron doctrine, it's an available option for the new administration that comes in to change the interpretation of a lot of these statutes, sometimes on very important issues. When you get an executive order that does that, it typically gets challenged, often seeking a nationwide injunction against the new rule. Comes up to the Supreme Court on the so-called Shadow Docket. And so I don't want to say that Chevron is responsible for all the ills of the moderate administrative state, just most of them.

Smith: Well that was an excellent summary. Thank you Paul. Lisa, if we could turn next to another case implicating the administrative state, the SEC versus Jarkesy.

Lisa Blatt: Sure. I want to say, though, just a couple things. So Paul's brief in the Loper case is, by far, one of the best pieces of legal writing I've ever seen. It's absolutely incredible and it just shows how much Paul has thought about it and his way of speaking to the role of the Court and the role of all the branches of government is quite a work of art. I also thought that the government's brief was a little bit, it had all this stuff about this being a compulsive shock and stare decisis, but it didn't even acknowledge that for the last eight years, or at least since the Obama administration, the government has been disavowing reliance on Chevron and the Court itself hasn't been applying it. So there's somewhat of a disconnect between the government's brief defending Chevron and the reality of the last eight years.

And then on the administrative state in general, I think Paul teaches separation of powers and I basically am his comic relief in his class. And I once asked him, "Why do you conservatives care about all this stuff? Who cares about removal and appointments?" And Paul looked at me and he said, "Accountability, liberty." And I just laughed and I said, "Okay." I didn't realize that. But I do think the more you look at the administrative state as being removed from accountability, either because it's lack of removal or appointments or whatever, the more Chevron just becomes offensive because then there's just nobody who's accountable making all these huge decisions. And so we're at a place in our country and, I think, with the Court where they're rethinking these fundamental questions about the administrative state and how people's liberty interests are being taken away by bureaucrats, which brings me to SEC versus ... Is it Jarkesy? I don't know how we're pronouncing it.

But in another sort of big picture thing, we have a lot of the sort of Paul's side of the fence and the challengers are definitely doing quite well in the Supreme Court, but we have this situation where we have a lot of cases coming out of the Fifth Circuit where there've been striking the constitutionality of the CFPB's funding. And this is one where the Fifth Circuit struck on three separate grounds, the SEC's way of adjudicating civil penalties. And so this is a hot issue. SEC's an aggressive agency. To be gone after by the SEC, I think, triggers all these senses of big, bad, mean government. And so this has three huge questions. The first is whether the SEC's proceeding by way of adjudication, which is sort of an ALJ decides you're bad and imposes a penalty and then you get full review by the SEC, then you would go to court. Does that violate your right to a jury trial?

Apparently the standard is that you can take away the jury trial if public rights are being adjudicated. And the Court said, let's look at common law. Basically, the SEC sues people for fraud. Fraud is a common law kind of concept, that's a private right. So I frankly have no clue what that means to talk about a public right. That just makes no sense to me. But the Court recently, in oil states, decided that the PTAB or the PTO could adjudicate patents and that did not deprive patentees of their Seventh Amendment jury rights. So I don't see the Seventh Amendment issue prevailing.

The second issue is the court said the SEC system is unconstitutional because Congress could not have or should not have delegated to the SEC the decision to proceed either internally, by adjudication, or go to court. So to get a civil penalty, just like the FTC and a lot of other agencies, you can either do it in-house or go to court. Well guess what you would do if you were an agency, I would do it in-house, because you're going to win. You get to be the judge, jury, and the executioner. And it is very unfair to have that.

However, what the court said was a little bit, in my view, I don't think that this will prevail either. They said the decision to decide whether to go after somebody in the civil system in court or internal is legislative in nature and there's no intelligible principle. And the government has a pretty good argument that that can't be right because you can always decide whether to prosecute somebody or go after them civilly and there's no intelligible principle. So I don't think, even though it is incredibly unfair, and I do think there's some due process arguments to be made for the fact that the government can always go after you internally where government's always going to win. I don't see this as a non-delegation.

The third issue I do think has legs and is a more powerful argument against the SEC structure. And since Paul is the expert on this, Paul, please correct me. But this is a question, there's a generic law under the APA that gives administrative law judges for cause removal protection through the MSPB system. So ALJs and all these various agencies can't be removed unless there's cause. And normally that would be okay, but here, it's called the two-layer protection issue for those steeped in administrative law. But the SEC, the head of the SEC is also protected from removal at-will. So it has a cause standard. So you have the ALJs who get for cause protection and that also is reviewed by the MSPB that also has its own for cause removal protection. So there's almost a triple accountability problem here. And in this case versus free enterprise, the Court said you can't have this double layer of protection. So the government tries to distinguish free enterprise and said, well, that was the peekaboo, that board the public accounting, I don't know, financial accountability board was in an enforcement policymaking role. Here, ALJs are more adjudicatory.

I'm not sure that's such a great argument. So I do think this argument does have some legs. In that free enterprise case, I think there was a footnote where the court said, now, we're not deciding whether ALJs are unconstitutional and they adjudicate anyway, but I don't think the Court ever explained why that matters. But here's the rub, and I know Paul likes to talk about this issue too. The Fifth Circuit didn't have to decide what the relief was if you have an unconstitutionally ALJ, because they had already invalidated the rule on the other two grounds. And so if you just look at the relief for an improper official, the Court in this Lucia case, I think it's Lucia, said that ALJs, because they weren't properly appointed, you get a do-over, the person who had a bad judge. And it makes sense if you have a bias judge, you get a do-over.

But in the removal context, the Court in a series of cases have said, I guess it was in free enterprise Selia Law and with the CFPB, and the Collins case of a couple terms ago, that you need to show prejudice. So the government is going to say, all right, so fine, it's unconstitutional, but so what? It doesn't really make a difference and this petitioner is not going to get any relief. And so there is something, just stepping back from all the separation of power stuff and looking at a series of cases. It's a bunch of cases where these challengers keep saying the administrative state is unconstitutional, it violates all these structural protections. And then, the Court doesn't give these people any relief. And yet it feels like this individual person is asserting the rights of sort of, I don't know, to me it's very abstract, but once the court decides there's no remedy, it's not clear how any of these people have standing because their rights are not redressable by the Court. So I think the law's a little bit of a mess here, but we'll see what happens.

Smith: Anything to add, Paul?

Clement: Yeah. And then do you want me to go right into the next gift from the Fifth Circuit? Okay.

Smith: That'd be great.

Clement: So the only thing I would add, I think Lisa surveyed the issues very effectively and also sort of highlighted that the double for cause removal issue is the one where I think the government definitely has the greatest vulnerability. That was the substantive issue that was in the background of the Axon case last year where the court decided on the procedural ground that you'd go right to district court. But that's the issue that was in the backdrop there. It's a common feature of ALJs across different agencies, and I find it very difficult to understand after Free Enterprise Fund how double for cause removal for the ALJs could be constitutional.
There's another potential anomaly with that double for cause removal issue and it goes back to where Lisa started with, why do we care about these things? Because one of the things that seems a little weird about the double for cause removal issue is that the consequence of saying that is unconstitutional, the easiest way to fix it would be to say that the second layer of for cause removal is removed. And so the ALJs can basically be removed at-will by the SEC. And of course, a consequence of that would be to make the ALJs even more responsive to the agency. And part of the felt unfairness of all of this is that you're stuck in front of this agency and they're adjudicating their own cases and they never lose.

And so it seems weird, but if you think about it, at least from my perspective, it still all makes sense because what you care about in the separation of powers and what I think a majority of the Court cares deeply about in this context is accountability. And this idea of if you're hacked off because of what happens to you before an ALJ in the SEC, how does an ordinary citizen know who the heck to complain about? And they're hacked off and you're going to go to the MSPB to complain because the MSPB, what is that? It's not the agency that's taking your money away, it's not the one that you're focused on. You're mad at Gary Gensler, you're not mad at the MSPB. So even though it seems a little odd that the net result of these cases may be to make ALJs more responsive to the agency that they work for, I think in the long run, that actually is consistent with what the court's doing in this area, which is to try to create some accountability in the administrative state so people have to own decisions.

If the SEC is unfair, at least the SEC is clearly the target for your ire and maybe the target for Congress trying to provide some reforms, maybe trying to articulate an intelligible principle for when they have to go to court, that sort of thing. So it was maybe a decade or so ago when you'd look at the Supreme Court's shrinking docket, which now looks pretty ample by comparison. But a decade ago, you'd look at the shrinking docket and you'd say, thank God for the Ninth Circuit. If it wasn't for the Ninth circuit coming out with these kind of crazy rulings that the Supreme Court had to review, what would the Court do? And now, I think the Fifth Circuit has kind of filled that gap by deciding a lot of these kind of cutting edge issues. It's obviously a very conservative court.

As a result, when you're challenging administrative action, a lot of those administrators are not located in Texas. But nonetheless, a lot of litigants are trying to figure out ways to bring their causes of action and their challenges within the confines of the Fifth Circuit. And then the Fifth Circuit is pretty hospitable to some of these claims and skeptical of the government. And so another case that sort of fits that pattern is this case about the CFPB and its appropriations mechanism. And so this all goes back to Sarbanes-Oxley and the creation of the CFPB. The CFPB obviously gave us the Selia Law case. And so this is an agency that, I think, a lot of conservatives love to hate.

It was designed by Congress at a period where there was such a felt need to have some reform, and there's enough impetus behind that that I think the sponsors of the law could be kind of creative in structuring this agency and making it kind of more independent in certain ways than a typical administrative agency. And so one of the things that they did is largely insulate the CFPB from the normal appropriations process. And so we think we have an understanding, if we live in DC, about how the appropriations process works. We think that's in the Constitution somewhere. We think that that means that Congress has to appropriate funds for agencies roughly every two years, and that sort of creates a certain dependency of the agency on Congress, a certain need to be receptive to oversight requests and all of that.

And so when they created the CFPB, they purposely gave it, essentially, a permanent appropriation, and they basically didn't require that money to come directly from Congress. They empowered the head of the CFPB to essentially decide what was reasonably necessary under a very high cap and to get that money from the Federal Reserve Board rather than Congress. And so all of that is being challenged as inconsistent with the appropriations clause of the Constitution. It's interesting because, I think, as you see the briefing in this case play out, the real appeal of the argument that the challengers have made is that this appropriations mechanism combines a variety of features of insulation that are really unprecedented.

And the government's response to all of that, which is not ineffective, is to sort of pick those off one by one and say, well, we might not have another agency that has all three of these insulating features, but if you take them one by one, the sort of permanent appropriation, that's not so much of a problem. We have that in other agencies. If you pick off the idea that the funds come from fees charged as opposed to normal appropriations, that's a feature we have in other agencies and so on. So they sort of break it down one by one and say, none of these features are kind of independently a constitutional violation, and therefore, having all three of them together doesn't make a constitutional violation. And I think that's where some of the action is going to be on the court.

I think there's going to be a sense on some of the justices that this is too insulated from the appropriations process, but I think it may be a challenge to figure out why it is that the combination of things that have been around for quite some time in various agencies, why the combination of those crosses the constitutional line. And I guess one thing that, it's weird, but sometimes the Constitution's text can be pretty important on an issue. And one of the things I actually think the government has going for it in this case is that the text of the Constitution specifies that for the Army, or for basically the military, there has to be an appropriations law every two years, and it doesn't specify that for any other agency. So at least when it comes to the permanent appropriations feature, again, there's these other features that reinforce it and may put it over the constitutional line. But as to that feature, in particular, I do think the government has a pretty good constitutional argument.

And then the last thing I'll say is, and Lisa alluded to this, if the Court finds the appropriations combination of these insolations from the appropriations power to be unconstitutional, then there's the question of remedy. And I think in a lot of these cases, the impulse of the Court has been to say, violation, yes, remedy, not so much. And in this context, I think it's going to be hard for the court to say, no remedy, both for case-specific reasons as to the way this challenge proceeded, but also because if an agency's funding process was infirm, it needs money to do anything. And so there's a really good argument that if this sort of constitutional violation is right, then essentially everything the CFPB has done is constitutionally problematic. So it'll be interesting to see how that argument plays out in this context.

Smith: Lisa, anything to add?

Blatt: No.

Smith: Well, if we could shift gears now, if you could talk about two First Amendment cases, Lisa, the Lindke case and the O'Connor-Ratcliff case.

Blatt: Sure. So these are the cases involving when public officials use their personal social media cases, are they acting as state actors and subject to the First Amendment? So these are cases where I think you have a school board trustee and another city mayor, they had, I think, a Facebook and a Twitter X account. And one of them talked about COVID policies and I'm not sure what the school trustee was saying, but there were negative comments from parents and then there was a negative comment from one of the citizens and the public officials block them. And the Court of Appeals, the Ninth Circuit and Sixth Circuit have differing views on whether they're state actors. And if they're state actors, you are subject to the First Amendment and that includes the most basic prohibitions against speaker and viewpoint discrimination. And if you block somebody from your website based on their negative criticism, that's blatantly a First Amendment violation.

So what the Sixth Circuit held, and what the government is arguing, and both the public officials and the United States is that there's state action and they're state actors only if they're actually carrying out a specific governmental duty or they're using the social media account under their authority of their job. And here the officials fail that completely because these are private accounts that they own and operate. They had these accounts before they became public officials. They talk about both their jobs and they talk about their private lives. And there's an argument that, as public officials, they're allowed to have private life and they're even allowed to talk about their job and they're not state actors. So I think that that side has the most kind of clear line, it's coherent.

The other side, which is what the blocked parties are arguing and what the Ninth Circuit held, is that they're state officials as long as they would be perceived as such by a reasonable person and that they have the pretense of governmental authority. Would we think that they're talking in their official capacity? I find that very hard to follow, and I don't think that's necessarily what the court is going to find attractive. But I do think, if we all recall, I do think the public officials are more likely than not to win, but I can't help but think that some members of the Court are not going to be thinking about the former president and his use of then Twitter. There was a well-known case where he blocked 41 people from Twitter. I think it was the Southern District of New York said it's public forum, clearly state action, First Amendment violation. The Second Circuit affirmed.

And I don't know if it was the Trump administration or even, I guess it was the Trump administration, sought cert and then the case mooted because of the election. So the court never took it. And I just feel like I get it with these local officials, but the notion of a president banning all Black people from their site or all Jewish people from the site and announcing all kinds of policies, even declaring war, somehow the Court is going to leave that open and say, listen, maybe the president is subject to a different use. So we'll see.

And then I don't know if we want to talk about there are two other social media cases working their way. One involves state laws that say internet companies and social media companies have to, basically that the state gets to control how they moderate their content and who's on and off the site. And then there's a stay that was just entered by Justice Alito involving the state of Missouri about the White House, CDC, FBI, and the Surgeon General's ability to communicate with social media companies or the internet companies about the type of content they put. And that is happening right now in the Supreme Court. Response is due Wednesday. The stay expires on Friday. So lots of social media cases coming down the pike.

Smith: Paul, anything to add?

Clement: No, I do think it's interesting because it does feel slightly different when it's the president, and part of that was the very intense way that he seemed to be using the social media. But then the other thing is there's something about the president. And the thing that's kind interesting about that, though, is that starts to sound a lot like the arguments for what makes the president different. Oh, well, the president's different because it's such an all encompassing 24/7 sort of thing. So everything the president does is sort of official. Well, that starts to sound like an immunity argument that's probably being made in some court somewhere in the country right now too. So it'll be interesting to see how the Court sort of tiptoes around that issue because definitely going to be in the backdrop, but I think there are probably some pretty good reasons for the Court to not say anything in particular about that in the context of these cases. So I think that'll be an interesting dynamic to watch in that case.

So my next case is a case that I think Lisa did not want to talk about, but I'm delighted to talk about, which is the Moore case. And this is the great 16th Amendment case of the Court's term. And I think the 16th Amendment was convulsive, I guess, to use the SGs word from the Loper Bright brief. So just to give you a sense of why I'm enthusiastic about this case, so the issue in this case is essentially the circumstances in which the federal government can tax somebody consistent with the 16th Amendment without a realization event. And the background of this is Congress passed a pretty obscure statute called something like the mandatory repatriation tax that basically addressed a concern that there were certain taxpayers who were leaving lots and lots of money in foreign companies and they weren't repatriating to the United States where it could be taxed. And so they were building up lots of wealth in a way that wasn't giving any sort of benefit to the public fiscs. They passed a very targeted statute that sort of created a tax and essentially had almost like a constructive realization of getting the money back to the United States.

So it sounds kind boring and technical. So why am I so excited about this case? So here's why I'm excited about this case. In the broadest strokes, three great sort of constitutional moments in the Constitution, there's the framing and the original 10 amendments, there's the reconstruction amendments, and then the last piece of it that tends to get less attention is really the sort of series of progressive amendments, the 16th Amendment, 17th Amendment, 18th Amendment, 19th Amendment, 20th Amendment, and 21st Amendment. Those are kind of the three great periods. And they, I think, to a degree that maybe people under-appreciate had a really significant effect on the nature of our constitutional government and, particularly, the relationship between the states and the federal government. And I think that's particularly true of the 16th and the 17th Amendment. Because the way the framers set up the constitution, the federal government had relatively limited taxing power because it couldn't impose a direct tax without apportioning the burden of the tax among the states. It's directly out of the Constitution.

Now, the line between a direct tax and an indirect tax, which doesn't have to be apportioned, is a little bit hazy, but for the first hundred plus years of the Republic, the federal government was largely financing itself with stuff like tariffs, which didn't have to be apportions and were classically kind of indirect tax. And as long as the federal government was doing that, there were some real limits on how big the federal government could get because it was seriously revenue-constrained. The 16th Amendment just blew the doors off of that and paved the way for the income tax, which is now why we have a federal government of this huge size that we have.

So other than thinking about this as a boring tax case, I think the 16th Amendment, 17th Amendment, which also fundamentally changed the relationship between the states and the federal government by having direct election of senators, this is super interesting stuff, at least to me. And this case is, we don't get a lot of 16th Amendment cases from this perspective, but this is hugely important. And if you don't care about it for that reason, then the other reason to care about it is people are talking about a wealth tax and the constitutionality of a wealth tax may well be decided in the context of this case. Because although this is a funky little statute about repatriated foreign income, this issue about whether the federal government can tax people without a realization event, if that's true, then there's no reason for the federal government to wait until you actually take money from your stocks that have appreciated over time and take it as a capital gain. They don't have to wait for that.

They can just say, "Ah, Bradbury, you're looking a little wealthier than you did last year. We're going to tax you on your unrealized wealth. And the fact that you haven't taken any of that money and none of it's in your wallet and you don't actually feel any richer and they're all paper gains and they could all be gone tomorrow, don't worry about it. We're going to tax it pursuant to our 16th Amendment authority." So I think the issue here is much more important than meets the eye. And I think that for that reason, I think we've already seen just the top side briefs and there's some 20-plus amicus briefs. So I'm sorry, Lisa, you don't like this case? You think it's boring? I think this is one of the sleeper cases of the term.

Smith: Anything to add, Lisa?

Blatt: I think this is more important than the gun case.

Smith: Well, speaking of the gun case, could you tell us about United States versus Rahimi?

Blatt: Yeah, so this is a big one because it involves guns. This is going to be argued on November 7th. And when I say guns, a lot of people feel very strongly about it. So this involves the facial constitutionality of Section 922(g)(8), which makes it a felony, if you possess a gun, if you're subject to an order that involves a domestic restraining order, it can be based on one of two things. One is there was a finding that you represent a credible threat of violence, or the other is that the order just prohibits you from engaging in violence, IE, no individualized finding that you're a danger to anyone. And so the backdrop of this, of course, is Heller, which when I went to law school, there was no Second Amendment even though I lived in Texas and lots of people had guns, but now, it's definitely a right after Heller.

But the court did all kinds of weird things in Heller. It basically said there's a Second Amendment right, we're not going to question it's banning or it's regulation in sensitive places, and it's okay to ban dangerous and unusual weapons and you can restrict the right to "law-abiding and responsible citizens". So along comes Bruin, a case Paul argued in June of last year, and that radicalized or at least clarified, depending on your perspective, the way you treat Second Amendment challenges. And what the Court said was that you look at history and tradition, that's a flexible inquiry. We're not going to exactly tell you how you look at history and tradition, but at least look at history and tradition in terms of if the law restricts your right to keep and bear arms, it's presumptively unconstitutional unless you can point to a historical analog that had at least comparable burdens or comparable justifications.

So out come a wave of challenges. I think there have been, by one count, 31 successful challenges against gun regulation. They're falling like, I don't know, dominoes. There is, and this one is one, but there are many others involving, most notably the one under which Hunter Biden, I think, has been prosecuted, and that is (g)(3), 922(g)(3), that makes it unlawful to have a weapon and be a user of a controlled substance or be addicted to it, which includes marijuana. There's (g)(6), which means you can't own a gun if you've been dishonorably discharged from the Army. There's (g)(9), if you've been convicted of a misdemeanor, domestic violence. It's also unlawful to sell shotguns to anyone under 18, or any other firearm under 21.

This is, I think by most people's accounts, the best case for the government because, who wants to go against domestic violence, people who murder their wives. And in this case, this person is sort of a very good plaintiff from the government's perspective. He has five, either convictions, or charges of shooting people, including his wife, the girlfriend, police, I don't know, about everybody. And the order that he was under had a finding that he was a credible threat. The Fifth Circuit has a field day with this and says, we're going to apply Bruin. We're not going to look at the plaintiff, we're going to survey history and I don't see anything. We don't see anything. There's no, really, matchup to this sort of analog with respect to either the nature of the restriction of where a specific person was prohibited from doing it or the justification.

The U.S. just filed its brief or, I guess, filed its brief a long time ago. And it's a very odd brief because I think someone should run a count of how many times they said you can basically restrict weapons to only law-abiding and responsible citizens, and therefore anything that that is constitutional. Now, to me, that makes absolutely no sense because what about people convicted of DWI, tax evasion, polluters? And I think the Court is going to have a lot of difficulty with this case because there will be some pressure to think that Congress should be able to restrict, at least in a case where there's a finding, an individualized finding of dangerousness, and this was a facial challenge. So they can just say as applied, it's constitutional. But at the same time, are they going to give courts any guide to how much history and tradition?

From my way of thinking, just reading the briefs and thinking about the Second Amendment, there's two ways of thinking about it. Is do you think of it as a right or do you think of it as a privilege? And there's just unavoidable outcome for people who, like me, who don't like guns. If you think of it as a right, there's a lot of laws that are just blatantly unconstitutional. And if you think of it as a privilege, well then, you can start justifying a lot more regulation. But it is a right. The other thing I will say just about history and tradition is, I just don't know why I care about history and tradition when I think about schools and places of worship and public buildings or 13 year olds. I watched a little house on the prairie, grew up in Texas, remember of The Rifleman. Everybody had guns, at least on TV, they did.

And so under that view, to me, this makes no sense, but we're stuck with this history and tradition. It'll be fun to watch the Court figure out how they're going to get themselves out of this mess.

Smith: Paul, anything to add?

Clement: Let me just give you a slightly different sort of perspective on the Second Amendment as it's evolved and just put this case in context. I certainly don't endorse everything Lisa just said, but I agree with a lot of the broad strokes. But if you sort of think about the history of the modern Second Amendment, the Supreme Court and Heller says it's an individual right. Doesn't say privilege. Very clearly says it's an individual right. And then in McDonald against City of Chicago, it says that this right is a fundamental right. It's not a second class right and therefore it is incorporated against the state governments. And so presumptively, every state and local gun law is subject to constitutional scrutiny. And normally, you would've expected that that meant that there would be a decade where there'd be a lot of litigation about these various laws and half of them would be upheld and half of them would have been struck down.

But it's almost unthinkable that given that state and local governments across the country before Heller were passing laws on the assumption that they were unconstrained by the Second Amendment, it's almost unthinkable that they would've all nonetheless passed laws that fully conformed with the Second Amendment, like kismet. Wow. But instead of all of that happening in the decade after McDonald, the Supreme Court sort of took that decade off for reasons that are sort of explainable, if you count noses anyways. And lower courts, many of whom had judges who were no more comfortable with guns than Lisa, came up with sort of standards of review that ended up approving almost everything. And the Supreme Court, in Bruin, kind of finally got around to looking at all of that and said, no, actually we meant what we said in Bruin. We meant what we said in Heller. We meant what we said in McDonald and we need to not have this sort of, we're going to call it heightened scrutiny, but everything's constitutional thing. That's just not how we do that here.

They replaced it with history and tradition, which is something that we'll see how that plays out over time. But I think what we're starting to see now is just the manifestation of a serious engagement with what it means to have an individual Second Amendment that applies against state and local governments and is going to be relatively, robustly applied by some of the circuits. And what that's going to mean is that the nature of the cases that the Supreme Court get start to change a little bit. And in the era where the court was essentially signaling that it wasn't really taking a lot of these Second Amendment cases, it was left to largely Second Amendment advocacy groups to pick relatively friendly, attractive plaintiffs to bring affirmative challenges to regimes where they could pick the time, place, and manner of what they challenged and when they challenged and what the plaintiff looked like.

And in a world where, instead of that, the court's really going to start taking this stuff seriously and they're going to apply it and the Fifth Circuit is going to take history and tradition and say, this statute's unconstitutional. A lot of those cases, instead of coming up in declaratory judgment actions by plaintiffs, are going to be raised by defendants who are not perfectly picked out of a universe of potential plaintiffs to be the very most attractive litigants. And so the Supreme Court's going to have to wrestle with all of that. And I think Rahimi is, just in that sense, it's the thin edge of a wedge where I think we're going to see more of these cases. They're going to have to do a Second Amendment case about one a term, the way they do with other constitutional amendments that are litigated frequently.

And I think they're going to have to sort of wrestle with how do we deal with a case like this where it's a facial challenge, but it's a defendant raising it. And the circumstances of this are probably such that there may be plenty of ways for a government to regulate this particular individual and whether they get access to firearms, but maybe this kind of broad scope approach reflected in the statute is problematic and how do we reconcile all of that? So in my own mind, I think it's going to be fascinating. Part of the reason I feel like I've been very privileged to get to work on Second Amendment issues over the past years is because they're just, like most constitutional amendments, the litigation is fully mature.

We think about free speech cases and we've got, okay, it's largely a matter of figuring out which doctrinal box you get into. And once you get into that box, if it's strict scrutiny, you're going to win. And if it's something with lower scrutiny, you're going to lose. And it's all about getting your little fact pattern into these well-established doctrinal boxes. Fourth Amendment, good grief, you got to read a hundred unreasonable search cases to figure out whether your search is reasonable or unreasonable. And it's all just, you're boxed in everywhere by doctrine. And what makes the Second Amendment, if you just want to be a law geek, kind of fascinating is the court's sort of starting from scratch and they've decided that they're not going to do this strict scrutiny, intermediate scrutiny thing, and they're going to do this history and tradition and they're going to confront all these issues. And from my standpoint as a watcher of the court, I say, bring it on. It's going to be fascinating. If you take Heller and McDonald's seriously, this probably should have started a decade ago, but now's better late than never.

Blatt: And one other thing that I thought Judge Ho, who wrote a separate concurring opinion in the case below, was very effective. And again, as somebody who doesn't like guns, this is an argument that is, I think, hard for people to combat is we always think about public safety and I thought Judge Ho made a very good argument that, look, a lot of these domestic orders are entered both ways. They're by consent. So a lot of women or victims are subject to the same order. And so if you have these broad prohibitions, you're preventing people who may need to defend themselves, or completely innocent, from owning a weapon that should be used to kill their boyfriends. I'm sorry, I meant that sarcastically, but should be used to defend themselves.

Smith: Well, I think we will have a few minutes for questions, but before we move to questions, I'm curious, the Court's coming back, it'll have its annual Long Conference on September 26th. Are there any petitions you're watching either at the long conference or just pending petitions in general? Lisa, I know you mentioned the two net choice cases challenging Florida and Texas's law. Paul, I know you also have a very interesting death penalty case, the Glossip case, pending. Are there any other petitions either of you're watching?

Blatt: I don't think on the Long Conference. This emergency docket is just ... I'm not sure why ... One of the things I was going to say is Paul and I love to do the Fifth Circuit Judicial Conference where we have a lot of fun, but a lot of it is just, the more polarized the country gets, the more polarized the stuff out of the administrations are coming and the more polarized our nomination process is. We have very few moderates on the Court anymore, and it just seems like there are Court of Appeals decisions coming out, no matter what administration is in, that they need immediate attention. So so much of the docket, I don't think through the fault of the Court at all, but as a function of both what district courts are doing at the injunction level and the administrations are doing is just requiring this enormous amount of attention. And unfortunately, I think it's depriving the rest of us who like to litigate before the Court of a lot of cases. They're taking so few cases, but they're basically inundated with a lot of emergency work.

Clement: And the only thing, and I say this pretty much every year, and no one listens, certainly nobody on the Court, but I do think the Court does itself a disservice by not taking more cases because there are a certain number of cases that are controversial. There are certain number of cases that have to be dealt with by the emergency docket. All of that stuff is, by its nature, controversial. And if you think about that as the numerator, if that ends up consuming almost all of the Court's attention and they're not deciding criminal cases and First Amendment cases and other cases where there are unusual alignment of justices or they all agree that unanimously this lower court or that lower court got it wrong, I think it feeds this assumption or this perception that the Court is very divisive and it's dealing with nothing but hot button issues.

And I think if the Court were to take a few more cases and engage in a little more error correction on some cases that are just wrong, and maybe there's not a circuit split yet, but who cares. The lower court got this terribly wrong, some litigant's liberty is being infringed, or some big company's got to pay a hundred million dollars for something that shouldn't be more than a $10 million case. Take a couple of those cases, reverse them unanimously, and you look more functional as a court and give people a chance to see you in action in cases that aren't involving race, guns, and abortion. I think the court would benefit from that in the long run and so would I, because a few more of my petitions could get granted. So I think it's really win-win. What's not to like?

Smith: Why do you think the court is taking fewer petitions these days, Paul?

Clement: It's Chevron's fault, and I'm sort of serious about that because there are interpersonal dynamics on the Court and there are certain justices, I think Justice O'Connor just liked taking more cases than maybe Justice Alito. So Justice White was a good one to grant cert. So part of it is very personal and idiosyncratic in terms of the personality. But if you think about what generates circuit splits, what generates circuit splits is important major legislation that was passed five to 10 years earlier. And sometimes around 1991 or so, with the exception of the Affordable Care Act that, God bless, has produced a couple of interesting cases, but generally about with the Civil Rights Restoration Act of 1991 and the Americans with Disabilities Act of 1990 or 91, Congress just stopped doing that. They stopped passing statutes, particularly statutes that gave private causes of action that let lots of people litigate things in different circuits across the country. And so I think part of the Court's reduction of its docket is a lagged reflection of the fact that Congress hasn't done much for the last 30 years. And I think that's largely a product of Chevron.

Blatt: I remember Justice Ginsburg once said, and I thought she was a little nutty at the time, she said it was because there were so many amicus briefs being filed that the justices had to wade through. And I'm like, I don't think they read the amicus briefs because the clerks do it. But to her credit, she is right, was right, that the amount of amicus briefs has gone up exponentially-

Clement: And Justice Ginsburg actually read them. So that's very-

Blatt: When we were in the SGs office, at least I was in 96, that was the heyday of everything, of all the EDPA and DOMA and everything else. And that produced a very large docket from up through and all the Child Online Privacy Act statute. So a lot of stuff was happening and then there was this just complete dearth of cases. But I do think there are routine commercial cases. I've also heard some of the justices say at some of these conferences that they don't want to take cases unless they think they can come up with a clear answer. And sometimes it's just too hard. To me, that's funny. They do get paid. They should go part-time, if they don't want to take more cases.

Smith: Well, I think we have time for one question. I know we have some in the audience or some online. Matt.

Matt: Hi, my name is Matt. I just wanted to thank you both for being here, by the way. I had one question about Supreme Court ethics, what each of you think about it and if you think the Court will adopt ethics reforms in the future?

Blatt: Well, they got to fix the Venmo problem. I'm kidding. I don't think neither of us are going to have a comment on that.

Matt: Okay.

Clement: No, I'm going to let Lisa save me.

Blatt: I don't think we have a comment on that.

Smith: Sure. Actually, let's go to Tom, if we can.

Tom Jipping: Tom Jipping, I'm in the legal center here at Heritage. Paul, you worked in the Senate. I was there for a long time, see how the sausage is made. Do you think that if we have judges who take statutory text more seriously, and as you referred to kind of at the top, less discretion for the bureaucrats and agencies that that will improve what Congress produces in terms of its legislation? Or do you think Congress has gotten so used to, we can just punt and the unelected somebodies will do our job for us?

Clement: It's a great question, Tom. Despite a lot of recent evidence to the contrary, I'm an optimist. I do think that our institutions, I don't think there's a fundamental defect with them. And I think when you see a situation we have where Congress doesn't seem to function nearly as well as it used to, maybe part of it's just nostalgia, but when you and I were working in the Senate, this was in the midst of Clinton impeachment, and I would hear every day about how things used to be better 20 years earlier, and people knew how to work with each other. But I look back to 1998 and I think, wow, if we could only get back to that point where at least half of the senators were talking to each other across the aisle, and maybe there were people on both sides that weren't trying to compromise, but Pat Leahy and Orrin Hatch were working together to do stuff and they would actually get stuff.

I think that there are lots of phenomenon and everybody wants to blame social media for everything. And as somebody who has social media companies as my clients, I'm convinced that can't be right. So you got to look around and say, what's changed? What's caused the dynamic to shift? And there's certainly things like the 24-hour news cycle that we can't fully control, can't fully adjust for. But I honestly think that Chevron is part of the problem and this deferral to the agencies. And it's not a Republican Democratic issue in my view, because at any given time, half of Congress has their friends in the White House, so it just shifts over time. And the dynamic changes a little bit from Republican administration to Democratic administration. But I do think, why would you compromise under circumstances where you can get 98% of what you want, at least for the next four years, if you just kick the issue to the person who used to work in the office next to you in the Senate, but is now under the administrative agency?

Blatt: Yeah. I would say it's even worse than that because for some of us who thought that sometimes, at least with the student loans or some of the COVID stuff, you just have these administrations, and sometimes in the Trump administration, do crazy things and think, well, who cares? We can get all the political benefits and we'll just hope the courts will strike it. And so it's making everybody happy and everybody miserable at the same time.

Clement: Yeah, and I don't think, just to warm to my theme, but I don't think it's great for the country for the rules on major issues. And you can pick the issue whether you're a Democrat or Republican that you care the most about, whether it's immigration on the one hand, or COVID policy on the other, or whatever it is. But the rules on those major issues shouldn't change every four years just because the administration's changed. But that's also sort of part of what we've gotten. And then as I mentioned, now, all you have to do is, if it's a Republican administration, they're going to come in and they're going to change a bunch of rules. And then California is going to challenge all of those new rules in the District Court in Berkeley.

And if it's a Democrat, they're going to come in and they're going to change all the rules back. And Texas is going to challenge those rules in District Court in Texas. And I don't know, I think we ought to get past a world where everything is done by administrative order and past a world where every third Supreme Court case has California or Texas in the caption.

Smith: Well, this has been a fascinating conversation. Unfortunately, we're out of time. If you're interested in what happens each week at the Supreme Court, I hope you'll tune in to the Heritage Foundation's Weekly Supreme Court podcast, SOTUS 101. Both Paul and Lisa have been kind enough to be guests in the past I co-hosted with my colleague, GianCarlo Canaparo. But in the meantime, please join me in giving Lisa and Paul a hand and thanking them for being with us today. Thank you both.

Well, that's it for today. Thank you to everyone for listening to SCOTUS 101 and this special Supreme Court Preview episode. Please be sure to subscribe on Spotify, Apple Podcast or wherever else you listen. You can also follow us on Twitter @SCOTUS101 and email us at [email protected] with your questions, comments, or ideas for future shows.

SCOTUS 101 is brought to you by more than half a million members of The Heritage Foundation, executive produced by GianCarlo Canaparo and Zack Smith, sound designed by Lauren EvansMark Guiney, and John Popp