SCOTUS 101: Savin’ the Bacon?


SCOTUS 101: Savin’ the Bacon?

May 12, 2023 37 min read

Commentary By

GianCarlo Canaparo

Senior Legal Fellow, Edwin Meese III Center

Zack Smith @tzsmith

Senior Legal Fellow, Meese Center for Legal Studies

Rudy Sulgan/Getty Images

The opinions are coming fast now. This week the Court handed down five, dealing with immigration, wire fraud, the Puerto Rico Financial Oversight Board, and the famous bacon case. Did SCOTUS save the nation's bacon? Tune in to find out and to hear GianCarlo interview the fascinating Justice Caleb Stegall of the Kansas Supreme Court. Lastly, see if you can do better than GianCarlo at trivia about legendary Supreme Court rivalries.

>>> The False Abe Fortas Analogy

GianCarlo Canaparo: Welcome back to SCOTUS 101.

Zack Smith: Welcome back indeed. It seems like those long awaited SCOTUS opinions are coming fast and furiously now. In fact, we got five today.

Canaparo: Yeah. What a morning it has been. Zack, you want to start us off?

Smith: I do. Let me rub my eyes. I think they're a little weary after reading all of the opinions this morning, but first up, we have Santos-Garcia versus Garland. This was a unanimous judgment, but not the unanimous opinion. It was weighing on whether a statutory provision is jurisdictional. The provision here was requirement that an illegal alien exhaust administrative remedies before a court can hear his appeal from a removal order. Now, seven justices believed that it was not jurisdictional. Justice Jackson wrote the opinion for everyone. However, Justices Alito and Thomas only concurred in the judgment. They would not have reached the question of jurisdiction because reconsideration of removal orders is discretionary.

Canaparo: Next up was National Pork Producers versus Ross.

Smith: The bacon case.

Canaparo: That's right. You'll remember. This is the bacon case. Well done.

Smith: I never forget bacon.

Canaparo: Well, Zack, I'm afraid to say-

Smith: No. Don't tell me it's bad news.

Canaparo: ... the National Pork Producers lost the case, which means that California has essentially free rein to impose its ethical pig raising standards on the country.

Smith: I can't imagine California's rule is good for bacon.

Canaparo: No, it's not good for bacon. Well, bacon in California is certainly going to get a lot more expensive. Bacon everywhere might get a lot more expensive. But let's go through this case. So, you'll remember California passed Proposition 12, which is the bacon law that we're winging about. Proposition 12 made it illegal to sell pork in California that wasn't grown and raised according to California's ethical standards. Now, most pork is not raised in California, although about 13% of the nation's consumption of pork occurs in California and almost no pork in the country is presently raised according to those ethical standards.

But the way that the market is set up through national distributors, most poor producers are probably going to have to comply, which means expanding space and decreasing the number of pigs they have, et cetera. So, the trade organization of pork producers sued claiming that the law violates what's called the dormant commerce clause, which generally forbids states from regulating interstate commerce. Now, the poor producers lost at SCOTUS. The opinions were very fractured, so I'll go through them slowly. Justice Gorsuch wrote the main opinion and it was a unanimous opinion as to one issue.
The petitioners had argued that the law violated the dormant commerce clause because a case called Healy versus Beer Institute, they said, created an almost per se rule forbidding states from passing laws with extraterritorial effects. The justices disagreed with that reading of Healy, but from there, things get complicated. It all turns on a case called Pike versus Bruce Church. Pike created a famous balancing test, the Pike balancing test, saying that a regulation violates the dormant commerce clause if it imposes a significant burden on interstate commerce that is not outweighed by its benefits. Now, five justices rejected the petitioner's argument that Proposition 12 fails the Pike balancing test, but for different reasons.

Justices Gorsuch, Thomas, and Barrett rejected it, because in their view, the court can't balance non-economic benefits like the ethical treatment of pigs against the economic harms to interstate commerce. Gorsuch and Thomas now joined by Justices Sotomayor and Kagan, but not Barrett, said that the petitioners failed adequately to plead that Proposition 12 actually had a substantial burden on interstate commerce. So, you had five votes saying that the petitioner's loss, but no majority reason as to why now.

The Chief Justice joined by Alito, Kavanaugh, and Jackson dissented with respect to Pike on the basis that in their view, the petitioners did adequately plead a substantial burden on interstate commerce and that the court can and indeed must balance non-economic versus economic harms and benefits. Justice Kavanaugh wrote separately after joining the Chief's opinion to explain that laws like Proposition 12 raise questions not only under the commerce clause, but also under the import-export clause, the privileges and immunities clause, and the full faith and credit clause. So, ultimately, the poor producers lose, and that's really all I can tell you.

Smith: It's a sad day for bacon, I can tell you that much.

Canaparo: It is.

Smith: Alright. Next up, we have Ciminelli versus United States. This was a unanimous decision by Justice Thomas where the court held that the right to valuable economic information is not the property interest required to sustain a wire fraud charge. Now, the petitioner in this case, Mr. Louis Ciminelli, was convicted of wire fraud for his role in his scheme to rig bids to get state contracts associated with one of former New York Governor Andrew Cuomo's initiatives. The gist of the government's theory in this case was that the conspirators denied their victims of "potentially valuable economic information necessary to make economic decisions". The conspirators importantly did not actually steal any property.
This was a problem for the government because the plain text of the wire fraud statute refers to using fraud to acquire money or property. The Second Circuit Court of Appeals held that economic information can count as property, but a unanimous Supreme Court disagreed, because property in the wire fraud statute means traditional forms of property and access to useful economic information does not count.

Canaparo: So that was not the only case involving fraud tied to the government of Former Governor Andrew Cuomo. We also had Percoco versus the United States and another unanimous judgment with different opinions. Justice Alito wrote for everyone but Justices Gorsuch and Thomas holding that a private citizen who has influence over government decision making cannot be convicted of wire fraud under the theory that he denied the public its intangible right of honest services. Now, that inscrutable line comes from a statute which creates honest services fraud.

Now, Mr. Percoco here had been the governor's executive deputy secretary, which gave him a lot of influence in the government of New York. He resigned from that position to work on the government's reelection campaign and then took the job back when the governor was reelected. But during that break, he used his influence to help some very shady people get some very shady deals done. The feds were not too happy about it, and they arrested him for wire fraud. Now, it all turned on whether or not during that period of time, during the reelection campaign when he was not technically an employee of the government, he owed the government whatever the heck the right of honest service is.

The Supreme Court said this is just a hopelessly vague phrase. It paves the way for arbitrary and discriminatory enforcement, and ultimately, the jury instruction imploring the jury to fill in that void was improper. Now, Justices Gorsuch and Thomas concurred, but wrote separately and said, "Look, this is just completely vague. The vagueness runs through this entire statute. We can't slap a Band-Aid on it at this point. The whole statute just fails to meet the minimum due process requirements."

Smith: Very interesting. Well, last up. We have the court's decision in Financial Oversight and Management Board for Puerto Rico versus Centro de Periodismo Investigativo Inc.

Canaparo: Well done, Zack.

Smith: Thank you. Thank you. It took me a few tries, but I got it eventually. Justice Kagan wrote the decision in this case and she was joined by all of the other justices except for Justice Thomas. Here, the court held that Congress had not abrogated the sovereign immunity of the Financial Oversight and Management Board for Puerto Rico, which Congress established as part of the Puerto Rico Oversight Management and Economic Stability Act of 2016, which is more commonly known as PROMESA to oversee the island's troubled finances. Because the board is technically an arm of the Puerto Rican government, it generally enjoys whatever sovereign immunity Puerto Rico enjoys.

The respondent in this case was a nonprofit media organization and it requested a number of documents from the board that the board failed to turn over. So, the media organization sued the board in Puerto Rico's Federal District Court. That court found that PROMESA's jurisdictional provision requiring any suits brought against the board to be filed in Puerto Rico's Federal District Court clearly abrogated its sovereign immunity and the First Circuit Court of Appeals agreed. The Supreme Court reversed that holding those stating that "Nothing in PROMESA makes Congress' intent to abrogate unmistakably clear."

The court also assumed without deciding that Puerto Rico was in fact immune from suit in federal court and declined to reach that issue. Justice Thomas in his lone dissent stated his belief that the court should have reached the immunity decision and should have held that the board "lacks the only immunity is ever asserted". He said that the board has at every stage, argued only that it possesses the same immunity as states in argument, he says, that is untenable, because Puerto Rico is a territory and not a state.

Canaparo: Interesting stuff. Busy weekend, no doubt, more very busy weeks ahead in the last couple weeks of the term. Well, now, we have an interview with Kansas Supreme Court Justice Caleb Stegall right after this.

Clip 1: I'll never forget just being fearful for my life.

Clip 2: Threatening phone calls, emails, protests outside the shop.

Clip 3: I remember sleeping on the floor of my bedroom seeing the headlights driving by just wondering if someone was going to carry out on some of the threats that I had seen in emails. Here I am on this journey hopefully to protect not only my right to speak freely, but everyone's right to do just the same.

Speaker: You've just listened to a sneak peek from our brand new documentary about Lorie Smith. She's a web designer who the State of Colorado wants to force into creating LGBTQ websites and other content that directly violates her beliefs. We spoke with her and with Christian Baker, Jack Phillips about their cases and about what's at stake for the First Amendment. You can find the documentary on the Daily Signals YouTube channel or in the show notes for this episode.

Canaparo: Well, it is my pleasure today to interview Kansas Supreme Court Justice Caleb Stegall. Justice Stegall, welcome to the show.

Stegall: Thank you for having me. It's great to be here, GianCarlo.

Canaparo: So Justice, what first sparked your interest in the law?

Stegall: I really did not have an early interest in law like a lot of lawyers do from either early childhood or even high school. I grew up in a family that for a very long time, going back many generations, were pastors. So, I was a pastor's kid. I actually didn't know any lawyers growing up, but I did always love language and words and I was attracted early on to arguments and questions about public policy and politics. I spent actually my first post-college years as a high school teacher, but I suppose those interests naturally led and eventually led to law school.

Canaparo: Was the decision to go to law school organic? Did it flow out of any particular event?

Stegall: Yeah, I had a very good friend from my undergrad years who went to law school a few years before I did, and he began talking to me about it and essentially said, "Look, this is for you. You got to do this." My wife Anne and I had two young kids at the time. I always loved teaching, but I knew it wasn't going to be a long-term career option. On a lark, I took the LSAT and did well enough on it to think that yeah, this should be something I pursue.

Canaparo: How did you find law school?

Stegall: I loved law school. I was never a great student prior to law school. I think that the highly competitive nature of the classes, the subject matter certainly, but also, I really thrived in an environment where at least when I went, it was still the old school method of all or nothing, one test at the end. That really fit my personality and the environment that led to me doing well. So, I really loved law school.

Canaparo: After law school, you clerked for Judge Deanell Tacha on the Tenth Circuit. What was that experience like?

Stegall: Yeah, forgive me for correcting the pronunciation, but she pronounces it Tacha.

Canaparo: Ah, my mistake.

Stegall: I was very fortunate to clerk for Judge Tacha. It was a wonderful and unique experience for a young lawyer. Obviously, that's a common thing that those of us in the ranks of federal appellate clerks say, which is truly a testament to our judiciary and to that system of clerkships, which provides great mentoring opportunities for young lawyers. She was a great judge. Probably more importantly, she was one of the kindest and really most supportive mentors that I've ever had. So, it was a tremendous experience and I count myself very fortunate to have gotten to do that.

Canaparo: Do you have any favorite memories of her or the work you did for her?

Stegall: So I would say that probably it's just the day-to-day work of learning and being intimately involved in what an appellate judge does. We got to wrestle through, of course, the very naughty legal problems that would be presented in the cases. Yet you developed very close relationships with co-clerks and certainly with our judge. Judge Tacha was immensely open in her receptivity to our ideas. She would hear them through, even if at the end of the day, one of her favorite sayings was, "I'm article three, you're not." So that was her way of saying, "My opinion counts more than yours." But it was always a collaborative process, which was tremendous. I remember traveling to Denver where the Tenth Circuit sits for arguments several times during that year, and that was a real thrill.

I think that it's a common experience for young people. Once you've achieved something small, but you're at the beginning of your career and you realize you're on the inside of something that seems very important and that experience is of course very memorable. I would just add that during my clerkship year, Judge Tacha became the chief judge of the Tenth Circuit. So, probably my favorite memory of the whole year was during the weekend of her investiture because Justice Breyer, who was the supervising justice of the Tenth, came for the ceremony and us Tacha clerks got to take him to the local bar afterwards. He was very generous to give us several hours of just unvarnished conversation over beers in our local towny bar. So, that was certainly a standout memory for me.

Canaparo: Sounds like it. So, after your clerkship, you remained in Kansas, Topeka, where you're from and practiced law as an associate at Foulston Siefkin. What work did you do there?

Stegall: Yeah, so I'm from Lawrence, which is just about 30 miles east of Topeka, which is the home of the University of Kansas. Both myself and my wife Anne were very committed to staying in Kansas. Like I said, we had young kids. Foulston's the largest law firm in Kansas, but its primary offices are in Wichita. So, at that time, it had a satellite office in Topeka and they had just begun to develop a bit of a government relations practice, which was supplemented by some general litigation practice.

So, I had the best of both worlds. I was part of a large law firm, but in a small satellite office. I got to do a lot of different things right away. Really enjoyed being in the state capital of Topeka and thinking through, "What does a government relations practice look like?" I met a few mentors there who taught me a great deal.

Canaparo: You eventually left to start your own firm outside of Topeka in Perry. What made you decide to do that?

Stegall: Yeah, that's a bit of a long story. I can probably do my best to give you a simple version of it. I think I would have to take into account probably two factors. The first was that at this point in time and this was about 2004, I had been reading pretty deeply in the agrarian literary tradition of our region. I was enamored in particular with a fictional character named Wheeler Catlett in the work of Wendell Berry. Wheeler Catlett was a country lawyer and there is some romanticization of this ideal of the country lawyer who hangs a shingle on Main Street.

But I had always resisted this professional pressure to specialize and I really wanted to embrace that vision of a lawyer as a main street generalist, someone who anyone in the community could pop in over the lunch hour and say, "Hey, I have a problem. Can you help me with it?" I was really actually very curious to know whether such a thing was even still possible or feasible in the 21st century. So, the second factor was at work, which was at work simultaneously was really political. The early 2000s of course were still the wild west days of writing on the internet. It was the golden era of blogs and websites and so on before social media took over.

Along with a couple of friends, I had started and edited an online publication that by 2004, it had gained actually quite a bit of national attention. We had been profiled on the front page of the New York Times and so on, and all of that was a very heady experience for this rather sheltered and poor pastor's kid from Kansas. So, one side effect of that was that it actually opened a number of professional doors for me back home of the political variety. So, I began to pick up political clients and was asked to do a lot of the work that a white shoe firm like Foulston would traditionally turn down, because it was too controversial and would probably upset some client. If you have a very wide client base, you have to be careful about those things. So, that generated some tension.

Really, the final break came in 2004 when I was asked by the Republican Party to run for a vacant seat in the Kansas Senate and I really wanted to do that and Foulston said no. So, I passed on the opportunity, but I did immediately say, "Okay, I need to leave, not because I disliked the firm, but I think our interests were diverging at that point." Looking back, I am glad that it worked out that way. Things would've been very different if I had run for that spot. I still have a lot of great friendships with people at Foulston. So, I have nothing but gratitude for what it did for me, but the upshot is by early 2005, I was a solo practitioner on the main street of my adopted hometown of Perry, which had a population of 900 people.

Canaparo: So did it work out? Is it possible?

Stegall: It is possible, although there's some nuance there. It did work out. It worked out tremendously. Those years in what I called the Stegall Law Firm were really the most fun I ever had practicing law. The Stegall Law Firm ended up with about a six-year run, 2005 to 2010. I had four full-time lawyers by the time we were done, which actually, I think made Perry, Kansas the lawyer capital of Kansas at least if you measure on a per capita basis. So, we did a lot of political work, a lot of complex litigation at both the trial and appellate courts. Of course, that's not local work. So, my romantic ideal of being a local main street guy did come to fruition, but economically, it was very much supplemented by my statewide and even regional work.

I think I had a reputation at that point as a guy who if he believed in your case, he would take a lot of cases other lawyers didn't want. I don't know that that's something I'd recommend to other young lawyers, because there's usually good reasons why a case shouldn't be taken if the rest of the bar won't touch it. But at least in my case, it did expose me to some really amazing opportunities very early on in a young career. I think I had a lot of good luck. I had some blessings of providence and maybe a little good lawyering thrown in there. We won a lot of those cases. Really, there's nothing like the feeling of winning as the underdog. I think a lot of people have experienced that. That's a great feeling.

Canaparo: Could you tell us about maybe one of those cases of which you're most proud?

Stegall: Sure. So, I have a lot of great stories from that time, as you can imagine. I can actually pick two to share with you.

Canaparo: By all means.

Stegall: Pretty illustrative of the time there. First, from 2002 to 2006, Kansas had a very polarizing attorney general named Phil Klein. He had a very aggressive and in-your-face style. He was a bit of a Trumpist long before Trumpism was a thing. He had been pursuing some legal actions against abortion providers in the state during his tenure. Of course, he amassed a long list of prominent enemies very quickly. He was defeated rather decisively in 2006 by a man who had been the Johnson County District Attorney, and that's the big suburb of Kansas City. That person had actually switched parties specifically to run against Klein. Because of that oddity, it was a bit of a Shakespearean twist.

The Republican Party in Kansas City then appointed Attorney General Klein to complete the unfinished term of the Kansas City District Attorney. So, the two rivals switched places and the new Attorney General promptly sued the ex-Attorney General in an effort to stop him from pursuing these legal actions. I had never actually met Klein, but in early 2007 when this was happening, I got a call from him and he said essentially, "I think I need a lawyer. I was told I should call you." So I ended up taking that. That fight lasted several years. It was incredibly contentious and controversial. It really was actually very politically toxic for almost everyone involved.

I'm very grateful that I managed to come through relatively unscathed, but it was a battle of high drama, high stakes, which was a great experience for me. Then just briefly, really the representation I'm most proud of, which I think was your question, was a tremendously unique experience I had when I was asked to represent a number of American missionaries who had traveled to Haiti following a devastating earthquake that occurred there in 2010. I think it was January 2010. Those folks had answered the call. They wanted to go help in the midst of destruction and of course chaos and suffering, and their hope had been to work with several orphanages to rescue children who had lost their families.

Their zeal really overtook their good planning however, and they attempted to move a bus full of kids across the border into the Dominican Republic. They were arrested. They were charged with kidnapping and child trafficking. The case really became an international sensation with media from literally across the globe having an intense interest in it. One of them happened to be from Kansas, which was how I ended up being their lawyer.

The full story of that case really, we could do an entire podcast just on that, but it led to some truly remarkable episodes of legal maneuvering. The short end of the story was we were eventually able to win their release and convince the Haitian government to drop the charges against them and then to safely bring them back home working with the United States State Department.

Canaparo: Wow. So, you mentioned that your representation of Klein was very contentious. Some of your representations, especially that one, were used against you in your confirmation hearings on the theory that because you represented people who were seen as bad or holding unpopular views, that reflected poorly on you as their lawyer. Now, you've rejected that theory and have defended other lawyers, notably now Judge Carl Folsom from that same criticism. Can you tell us about your thinking on that?

Stegall: Yeah, I do think this is a tremendously important issue for the judiciary but even beyond the judiciary, for society. A little bit of background context, I was nominated to the Kansas Court of Appeals, which was my first judicial posting. I happened to have been the first nominee that went through a new process in Kansas, which mirrors the federal process. So, there were senate confirmation hearings and so on. The fact that it was the first one ever and that had been adopted by the administration, which I had been working for, really put me under a unique spotlight of scrutiny and attention at that point in time. There was also a lot of partisan opposition.

So, in that context, a lot of my prior writings and certainly my representation of former Attorney General Klein were featured front and center by those who thought that I should not be a judge. But really to their great credit, I would say there were a number of really prominent Kansas attorneys who were known to be maybe on the left or at least known to not share my political views. They stepped forward and very publicly said that that criticism was out of bounds, because of course in our system, every person even and especially those who are not popular deserves and needs competent legal representation, so that our system can function the way it should.

So, a number of years later, when the situation was reversed and our Democrat Governor Laura Kelly had appointed a public defender, you referenced him now, Judge Carl Folsom, who had a stellar record as a public defender, a number of conservative members of our state senate chose to attack him and fault him for representing some of society's most despised criminals. I just felt at that point in time, it was important for me to speak up, having had the unique position that I did. I did so I think primarily through op-eds that were published across the state. I would like to think that there was some that had some effectiveness just in terms of reminding our public officials and our state as a whole what it is that lawyers do and why even those who are most despised need representation.

Canaparo: So this was all done or your representation of Klein was done while you were at the Stegall Law Firm, but it was not the only job you had at that time. You had a second or you were-

Stegall: Yes, I did.

Canaparo: ... the county attorney for Jefferson County. How did you manage two jobs? What did you do as county attorney?

Stegall: Yeah, it's not that actually that unusual in Kansas. So, in smaller jurisdictions in Kansas and I think this is similar to a number of other states, we have county attorneys as opposed to district attorneys, but the job duties and responsibilities are essentially the same. The primary difference between the larger and smaller jurisdictions is that the county attorney positions are generally considered to be part-time. So, actually, there are quite a few privately practicing attorneys in Kansas who also hold that public office of county attorney and they oversee the prosecutor's office in the jurisdiction.

So, just like a lot of my opportunities that have come along, it landed in my lap when I was asked to take on that role. Fortunately, I was chosen by my fellow citizens and really enjoyed my time as county attorney. Got to learn all about prosecution. You really run that whole office. We handled everything from traffic tickets to a few first degree murder prosecutions.

Canaparo: Wow. So, eventually, you left the County Attorney's Office and the Stegall Law Firm to become Chief Counsel to Governor Sam Brownback. What led to that change and what did you do in that position?

Stegall: Yeah. So, this was around 2010. Then Senator Sam Brownback had made a term limit pledge. So, he in keeping with his term limit pledge was leaving the United States Senate and had come back to Kansas to run for governor. He really won fairly easily in that election, November 2010. A month later in December, I got a call from his Chief of Staff and he asked me or really was more than asked, he told me, "We need you to be the Chief Counsel in the new Brownback administration." That was probably the hardest decision I've ever had to make in terms of my career. I really did give up a thriving practice that I loved at the Stegall Law Firm.

I still have a twinge of sadness when I think about leaving it right when it was really going gangbusters, but I had to follow a path that I'd tried for myself previously, which was to be really as open as possible to whatever opportunities providentially are laid in front of me and to do so as faithfully as I could. So, I accepted the position and it did turn out to be yet another very interesting ride. It might be easier to answer the second part of your question about what I did by saying what I didn't do as Chief Counsel, because I did get to be very intimately involved really with the entire operation of the administration.
Of course, if you can think back, our listeners can think back, this was right at the onset of the Tea Party era. There was this very heady sense in the air, very electric buzz that big conservative reforms were coming. Governor Brownback was actually one of the leading figures in that. He set the tone with a very aggressive, big and bold package of reform proposals that pretty much touched every area of state government. So, to be part of the small team that was really tasked with making that happen was a tremendous experience.

Canaparo: Now, how did it come about that he ended up nominating you to the Court of Appeals and then to the State Supreme Court?

Stegall: Yeah, like I mentioned, he had a large reform package that covered all sorts of policy areas, but one of them was his desire to reform the method of selection, which Kansas uses to choose our judges. We use what's commonly referred to as the Missouri Plan. It's considered to be a nonpartisan merit-based system wherein there's a nominating commission made up of lawyers and laypersons who interview applicants and then forward three names onto the governor for appointment. Once the governor picks a nominee, that person is then fully vested with the office. There's no role for the legislature, for the Senate to do confirmations. The governor also is restricted by the nominating commission. So, that's the Missouri Plan in short.

Governor Brownback believed along with many others in our state that that was not democratic. It was a bit too closed room, the in-crowd picking their folks, and the people of Kansas through their elected representatives did not have enough of a say. So, there was a lot of effort to introduce various reform proposals. He was half successful. He was able to get through a reform for the Kansas Court of Appeals, which is our intermediate appellate court, but failed at the Supreme Court. So, Kansas actually still has this bifurcated system where for the Court of Appeals, we follow more or less the federal model, which is the governor of appoints whomever they choose with senate confirmation. At the Supreme Court, we still have the Missouri Plan.

So, soon after that reform was adopted, this was the legislative session of 2013, there was a vacancy on the Court of Appeals. Sam looked at me and said, "You're going to be the first guy up there." To be fair, I had wanted to do that as well. Very quickly after that, there was a vacancy on the Supreme Court, which I applied for and went through the nominating commission process. So, within the space of one year, I got to experience both systems very up close and personal. I'm still the only Kansas judge to have done that, I think. That does give me a unique perspective on this whole debate about judicial appointments.

Canaparo: So how would you characterize your judicial philosophy?

Stegall: Of course, there's a lot of ways to answer that question, right? I'm going to guess that your listeners are probably familiar with the nomenclature here. So, I think the simplest and most direct way to answer that is just to acknowledge right up front that I am very much a self-declared originalist in my judicial philosophy. Like so many of my generation who matured in the law in the '90s, I did so under the writings and influence of Justice Scalia and in particular his emphasis, I would say, on constitutional structure over and against constitutional rights.

So, at least when doing constitutional adjudication, I certainly continue to believe as Scalia taught, that a judge's primary responsibility is both to the original public meaning of the words in the document, but with a particular attention to maintaining this carefully crafted balance that exists within our constitutional structure. So, I've written actually in opinions that it's not the role of judges to adjudicate values, but rather to police boundaries. So, that metaphor has been important for me. I've written that in fact constitutional boundaries, if you must talk in terms of constitutional values, the only values declared by the constitution are the boundaries that sets forward. So, that's the starting place.

I do think as I've grown as a judge and grown is a dangerous word to use in the context of sitting on the bench, it has a lot of bad connotations certainly, but to me, I think those bad connotations can be redeemed by an honest assessment that hopefully we get better at what we do. We learn, we grow, we mature. I certainly don't think that that's a bad thing necessarily. I would say that over the course of my years on the bench, I've come to see that originalism is necessary, but it's not sufficient. There's always going to be a plus after originalism. I think this is understood by people at a very gut level. They know that judges are people too, and that originalism by itself is not enough to decide some of the most contentious cases.

So, to be honest, it's important to ask, "Well, what is that plus? What does that mean?" I find that to be the most fascinating actually discussion and argument happening within the realm of the legal academy and those who debate judicial philosophy right now. Of course, it's a very active discussion even on the conservative side of things. I think it's particularly interesting to navigate these things as a sitting judge on a court of constitutional last resort. I recently wrote a law review essay trying to explore some of this.

I just wanted to push back ever so gently on this notion that's prominent in conservative judicial circles that a good judge is never "result oriented". They just apply the law. I think that that while carrying a really important kernel of truth is not the whole picture, because even conservative judges need to understand what is the proper orientation of justice and of judging.

Canaparo: Could you give us a sense of a little bit of the argument you make in that essay?

Stegall: Yes. It's a complex argument, which I would not be doing it justice to try to summarize it in a few short sentences. But essentially, the conclusion of the essay is that a society that is living at peace with itself essentially is a worthwhile ends towards which judges must be oriented. To the extent there's any interest, I would refer folks to the actual essay. I try to develop a somewhat lengthy and complex argument for that.

Canaparo: What's the name of it and where is it published?

Stegall: It's published in the Kansas Law Review, and it's called The Ethics of Decision Making.

Canaparo: All right, fascinating. Well, I'll put a link to that in the description of the episode.

Stegall: Okay, thank you for that.

Canaparo: So let me shift gears for a moment. As a Kansas Supreme Court Justice, do you have law clerks?

Stegall: I do. I'm very privileged to have two law clerks right now, and I've probably had over 10 law clerks during my tenure as a justice. But then the two I have right now are tremendous young lawyers. I certainly couldn't do without them. I tell them that their job is to make sure I don't screw up too badly and that also there will be a possibility every day for them to fail in that mission. So far, I think so good. So, they're doing a tremendous job. But joking aside, again, it hearkens back to my time as a clerk.

Being able to be part of what really is a miniature law firm and work collaboratively to fight your way through some of the most difficult legal questions that we can be presented with is a thrilling thing and it never gets old. So, that's our little law firm in the Kansas Supreme Court Courthouse.

Canaparo: So early on in the episode, you mentioned that you had started off as a teacher, that you really love teaching, and you as a justice did teach for a while at the Kansas University Law School, but you resigned from that position in the wake of a free speech controversy on campus. What can you tell us about that?

Stegall: Yeah, that happened fairly recently. This was at the end of last year. It was a pretty difficult and I would say painful episode for me. If you know anything about me, it's fairly easy to tell for anyone who reads my writings that I love Kansas, I love everything about Kansas. That includes our flagship university, the University of Kansas. I've always been a Jayhawk, always will be a Jayhawk. I have tremendous respect for the law school. I'm an alum of the law school. I have known the folks there for a very long time. Really I can't talk too much about the specifics of what happened there.

I made some promises not to do that publicly, but I do think I can say in short that the law school ended up handling a free speech issue in a way that drew lines, which frankly from my perspective were unacceptable. I simply could not countenance them as a faculty member. That's a difficult thing. I know people are in those circumstances probably on a daily basis these days, and those are hard calls to make. Beyond that, I did have a letter of resignation that ended up in the hands of the media and I guess I would say that it speaks for itself if that's acceptable.

Canaparo: Fair. So, in that letter of resignation, you wrote the following that there's a perennial temptation to cheat on the social contract, to shortcut or bypass the liberal public square on the road to achieving one's preferred outcomes. You went on to write that such efforts are drawn to censorship, reprisals against those espousing disfavored views, and to dividing people based on shared group identities and characteristics. From my perspective, this seems to be a fairly common phenomenon on campuses at the moment. Why do you think that thing is happening and how do we resist that temptation going forward?

Stegall: Well, I agree with you. I think it is an all too common phenomena and I guess I'm pleased that you recognize in what I wrote, something that sounds familiar to you. I think that is at least an indication that I was over the target as they say. I think it's also important to say right up front that from my perspective, none of our many sided right partisan divides, none of them have cornered the market on this, which is to say that this is a problem that crosses all partisan divisions. I think it's a tendency that we seem to have developed really, as I said, to want to bypass or skip the civic duty of engaging in the deliberative process. We want to go straight to the "winning". We just want to win.

We would prefer to skip the hard work that really precedes what I would characterize as a true and appropriate win, which is when you win hearts and minds. I think skipping that deliberative process is incredibly dangerous. I think we're seeing that play itself out. Really, a key insight here, which heightens the danger level of this behavior, is that there's no legal fix. That's not to say that all the litigation over free speech and the First Amendment are important. Of course, they are. But at the end of the day, this is an extralegal problem or it would maybe be more proper to call it pre-legal problem, which to me it's why it's helpful to frame it in terms of the social contract.

There's really no constitution in the world, there's no judiciary in the world, no amount of originalism or what have you can fix a broken social contract. That really requires something pre-legal. It requires a renewal of I guess what I would describe as the habits or practices or norms that make up what we might call and what many of our founders called Republican virtue. I think for those of us who see this as a real crisis, especially those of us in positions of authority, we have a duty, a need to articulate and defend and really exhort our fellow citizens towards a renewal of that, towards a renewal of Republican virtue. I think there's a common misunderstanding that can go along with that. So, to be clear, from my perspective and I think historically speaking, this is not a call for kumbaya and a group hug. That's not what this is.

I mean, as I can attest and we've already talked about some of this, practicing Republican virtue really will put you right in the middle of some of the most contentious and difficult battles, because it requires participating. In generating this deliberative sense, you are a participant in what you hope will end up being a consensus or at a minimum of a result generated by the political community. That's what our constitutional structure is aiming at. I think in our day and age, there's this particular form of what I would call impatience and laziness to want to opt out of that more difficult path. That's why I think it's effective to refer to it as cheating on the social contract, because it's a shortcut and it's really a shortcut to political disintegration in my view.

Canaparo: Fair. Well, Justice, this has been fascinating. I want to thank you for the time you've spent with us and ask you our final question before you go. If you could have a conversation with any Supreme Court Justice, living or dead, who would it be and what would you talk about?

Stegall: Okay, that's an easy one for me. I love the question. I've mentioned already my time with Justice Breyer. I've also had the pleasure of several long dinners with some of the other sitting justices. Of course, those are all wonderful and memorable. But this is an easy one for me, because if I could have any pick, I would spend the day in the Kansas countryside with my fellow Kansan and my historical colleague on the Kansas Supreme Court, David Brewer. David Brewer was a member of the Kansas Supreme Court in the late 19th century. After serving on the Kansas Supreme Court, he served as a justice on the US Supreme Court from 1890 to I think about 1910. So, my guess is we would probably talk about all things Kansas and mostly ignore that faraway court.

Canaparo: Well, Justice, thank you again for joining us. It's been my pleasure.

Stegall: Well, you're welcome. It has been delight for me as well, and I really appreciate it. So, thank you.

Smith: Well, GC, we still have trivia today of course. Since we're nearing the end of the court's term, I thought it would be interesting to dive into some of the court's practices and procedures and look at some of the tensions that have historically arisen towards the end of the term and maybe some tensions between the prior justices themselves. Are you ready?

Canaparo: I have the sinking suspicion that this is one of those trivias where I should have read some of those gossipy Supreme Court novels or books like Scorpions and the Justices Under Their Robes or whatever, but I can't bring myself to read books like that. So, I shall do my best.

Smith: Just think of it being the TMZ version for Supreme Court trivia. All right. First up, which former Supreme Court Justice said of the court's end of term, that quote, "This place can become like a pressure cooker and it can beat up the strongest of men"? Now, to give you a hint, this justice said this quote in response to a disagreement he was having with Justice William Brennan.

Canaparo: Okay, so I don't know. Somebody who's to serve with Justice Brennan, there was that book Scorpions, which I read the back cover of once about how they downplay it.

Smith: You can enjoy a good gossipy novel every once in a while.

Canaparo: The point is I don't know the answer to this question. One of the more conservative leaning justices, I assume.

Smith: Well, that's okay. This was a tough one. It was actually Justice Hugo Black, who made that statement. You may recall he overlapped with Justice Brennan on the court from Brennan's appointment in 1956 until Black's retirement from the court in 1971. Now, of course, sadly, Justice Black was incredibly poor health at the time of his retirement. In fact, he retired on September 17th, 1971, and died only a few days later on September 25th. Well, let's stay with Hugo Black and his rocky relationships with other justices for a minute. Justice Black and Justice Douglas allegedly leaked to newspapers that they would resign from the court if President Truman elevated which one of their colleagues to replace the recently deceived Chief Justice Harlan Stone.

Canaparo: Oh, boy.

Smith: This is a tough one too. I'll give you a hint, GC.

Canaparo: Okay.

Smith: It was a very prominent member of the Corps, and he had recently done a tour overseas.

Canaparo: Justice Jackson.

Smith: Yeah, that's exactly right. There was some acrimony between Justice Black and Justice Jackson, and in fact, it all went back to a disagreement between the two of them about whether Justice Black should have recused from a particular case in 1945. For those interested, the case was Jewell Ridge Coal Corp versus Local 6167 United Mine Workers. The controversy stemmed from the fact that the mine workers were represented by one of Black's former law partners from 20 years earlier. It was a very acrimonious disagreement, and it was unearthed once again when Justice Jackson was being considered for the Chief Justiceship.

Canaparo: Interesting.

Smith: All right. I have one more Hugo Black related question. One of Chief Justice Earl Warren's law clerks called Black's clashes with this Justice one of the most basic animosities of the court, and I'll give you a hint on this one too, GC. This other Justice went on to resign from the court over unethical practices.

Canaparo: Ooh, probably Abe Fortas.

Smith: Yeah, that's exactly right. What's interesting about these clashes is that they were somewhat unexpected. Black and Fortas had been friends since the 1930s, but once Fortas joined the court, he and 4 disagreed very acrimoniously on many, many issues. Now, as an interesting aside, our friend Ilya Shapiro has an excellent op-ed out in the Wall Street Journal explaining why recent attempts to smear current justices by comparing their conduct to Fortas's fall flat. It's a very interesting and a very informative read, and I commend it to everyone who is listening. All right. GC, here's our final question for today. Now, we all know that the Supreme Court tries to have all of its cases decided by the end of June so that the justices can begin their summer recess.

Though as the court's website itself says, "The work of the justices is unceasing. During the summer, they continued to analyze new petitions for review, consider motions and applications, and must make preparation for cases scheduled for fall argument." Now, for many years, the court's term officially ended before the beginning of its summer recess. However, the justices changed that practice so that the court's term officially does not end until a new one has begun. So, my question is, GC, in what year did the justices change their longstanding practice?

Canaparo: That's interesting. Actually, you would've stumped me if you had just asked me when the Supreme Court term ends. I assumed that it ended when they handed down their last opinions. Go figure. Well, you've got me twice on this one because I don't know.

Smith: Well, this was a hard question, and you were right to assume that, GC. It was the court's practice for many, many years. In a practical sense, that's the way many people think about it. But technically, the court's term doesn't end until the new one opens in October and it was actually during the 1978, the 1979 term that the court officially made this change. The Supreme Court Historical Society's website says that the court "reluctantly recognize that the recess had become a fiction."

Canaparo: Well, what interesting trivia today, Zack. I mean, well done. You stunt me good and proper this time.

Smith: Well, I'm sure turnabout will be fair play. So, it'll be my turn next week. I can hardly wait, but that's all we have for today. So, thank you to everyone for listening to SCOTUS 101. Please be sure to subscribe on Spotify, Apple Podcasts, or wherever else you listen. As always, we'd appreciate if you left us a five-star rating.

Canaparo: You can 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 Evans, Mark Guiney, and John Popp