SCOTUS 101: SCOTUS in Wonderland


SCOTUS 101: SCOTUS in Wonderland

Jun 9, 2023 34 min read

Commentary By

Zack Smith @tzsmith

Senior Legal Fellow, Meese Center for Legal Studies

Charles “Cully” Stimson @cullystimson

Senior Legal Fellow and Deputy Director, Meese Center

Rudy Sulgan/Getty Images

Zack is out this week, so Cully Stimson is filling in. Cully and GianCarlo discuss the four opinions of the week, which include the Jack Daniels parody case and the race-based challenge to Alabama's congressional district maps. GianCarlo then interviews William Trachman, general counsel of Mountain States Legal Foundation, and the two talk about his career focusing on his work on civil rights and public schools. Last up, Cully takes Zack's place in the trivia hot-seat to answer questions about the Court's frequent citations to Alice's adventures in Wonderland.

GianCarlo Canaparo: Welcome back to SCOTUS 101. Zack is out this week, so our colleague and deputy director Cully Stimson, is filling in. Cully, welcome back to the show.

Cully Stimson: Thanks for having me, GC.

Canaparo: Well, we are nearing the end of the term and there are still 23 cases left for the court to decide. It’s looking increasingly likely like the justices will drop them all at the last minute because this week the justices announced only four. But before we get to those, Cully, can you tell us about the one new case?

Cully Stimson:

Sure. The court announced that next term it will hear Vidal v. Elster, which involves an attempt to trademark a phrase that uses President Trump’s name. Now the Lanham Act, which governs trademarks, does not allow trademarks to include a living person’s name without his consent. On that basis, The Patent and Trademark Office refused to trademark the phrase, ‘Trump Too Small.” The plaintiff is now suing claiming that this part of the Lanham Act violates his free speech rights.

Canaparo: Turning to opinions, the first up was Health and Hospital Corporation v. Talevski. This was a 7-2 decision written by Justice Jackson, Justices Thomas and Alito dissented, holding that nursing home residents can sue nursing homes for violating their rights under Section 1983 because the Federal Nursing Home Reform Act creates certain rights and turns nursing homes into state actors. Section 1983 is a statute you’re probably familiar with in the context of lawsuits against police officers. It says that when someone acting under color of state law deprives you of rights secured by the Constitution and laws, you can sue them in federal court.

The Nursing Home Reform Act says that nursing home residents have a right to be free from chemical restraints imposed on them for the purposes of discipline or convenience. The plaintiff here alleged that the nursing home that housed her father violated these legal rights by using chemical restraints on him, and so she sued under Section 1983. The court said that the case can go forward because the Federal Nursing Home Reform Act plainly creates legal rights, and nursing homes operate under color of state law because they agree to guarantee these rights when they accept federal funds.

Now, before I turn to the concurrences, I’ll address the dissents just to highlight the key points of contention. Justice Thomas dissented because in his view, laws like the Nursing Home Reform Act that impose requirements on private businesses as a condition of accepting money from the federal government do not create rights by law, which is the operative language of 1983. Spending strings like that are not rights corresponding to obligations. They create rights secured by agreement, and therefore are not covered by law. Justice Alito dissented because the Nursing Home Reform Act has its own enforcement mechanism already, and in his view allowing Section 1983 enforcement upsets that carefully crafted regime.

So back to the concurring opinions, Justice Gorsuch was sympathetic to Justice Thomas’s concerns about the spending clause, but he concluded that the real area of concern was whether the strings attached here violate the Anti-Commandeering Doctrine, which says that the federal government can’t force or coerce states to do things. But he said that issue was for another day. Justice Barrett also concurred to say that the court should be careful about enforcing spending clause statutes through Section 1983. It’s fine here, she said, but it might not be fine in other contexts.

Stimson: Next up is Allen v. Milligan, a 5-4 opinion by the chief, joined in full by Justices Sotomayor, Kagan and Jackson and all but one section by Justice Kavanaugh. There, the court held that Alabama’s 2022 Congressional redistricting plan likely violated Section 2 of the Voting Rights Act. The case comes out of a 1992 federal court judgment ordering Alabama to have one majority Black congressional district. Now, Alabama complied with that order, but in 2022, the plaintiffs here filed a lawsuit alleging that Alabama should have two majority Black districts. The lower court granted a preliminary injunction in their favor and the Supreme Court upheld it. The decision here turned on a precedent called Gingles, which establishes a complex test to decide whether under the Voting Rights Act a state needs to have majority minority districts, and if so, how many?

In the interest of time, we won’t go through all of them, but we’ll note that the majority concluded that they all tilted in the plaintiff’s favor. Alabama likely needed two Black districts. But it’s important to note that Alabama argued that Section 2 of the Voting Rights Act did not require racial balancing of districts, and even if it did, that would violate the equal protection clause of the Constitution, which requires the government to be colorblind. Alabama noted that the race balancing requirements comes not from the act, but from Gingles, and so Gingles is a misinterpretation of the act and should be overruled.

The majority, and Justice Kavanaugh in particular, who wrote concurrence to explain this point in much more detail, said that a statutory precedent like Gingles couldn’t be overruled without a stronger reason than that. Justice Thomas, joined by Justice Gorsuch in full and Justices Alito and Barrett in part, dissented calling the decision yet another installment in the disastrous misadventure of this court’s voting rights jurisprudence. For him, Gingles, which requires consciously segregated districts, cannot be squared with our colorblind constitution. Justice Alito, joined by Justice Gorsuch, also dissented. It’s fine with preserving Gingles, he said, but said that the majority had misunderstood the application of its factors to the present case.

Canaparo: Next up, the court unanimously decided the Jack Daniels parody case where a company made a dog chew toy that looks like a Jack Daniels bottle, but replaces all the words on it with jokes about dog poo. Justice Kagan wrote the opinion holding that just because something is parody does not mean that it necessarily is non infringing. A test developed by a lower court in a case called Rogers had seemed to suggest that if something was parody, it could not be commercial and therefore couldn’t violate trademarks. The court said that that expansive holding is not correct. Something can be both parody and commercial.

It remanded the case back to the lower court to apply this new understanding and to ask whether there is a likelihood that consumers will be confused and think that the chew toy is a real Jack Daniels product. Justice Sotomayor joined by Justice Alito concurred to say that on the question of whether consumers will be confused, courts should treat the results of surveys with caution. And Justice Gorsuch, joined by Justices Thomas and Barrett, concurred to say that lower courts should generally treat the Rogers case with care. He wrote it’s not obvious where the Rogers test comes from or that it is correct in all of its particulars.

Stimson: Last but not least was Dubin v. United States, which was also unanimous. Justice Sotomayor wrote the opinion holding that a person commits aggravated identity theft only when he uses another person’s name or identity as the crux of his crime. So here are the facts. David Dubin overbilled Medicaid for psychological testing that his company conducted. The bills that he submitted to the government for reimbursement included patients’ reimbursement numbers. He didn’t pretend to be the patients, he just referenced them when he inflated his bill. The government said that even referencing someone else’s identity in the course of committing fraud is identity theft.

But the Supreme Court said that was not compatible with the statutory definition. Identity theft occurs only when misuse of another person’s identity is the crux of what makes the underlying offense criminal rather than merely an ancillary feature of a billing method. Justice Gorsuch concurred in the judgment but not the analysis. He agreed that the government’s definition was rapacious, but he thought that the majority’s crux test was unconstitutionally vague, but that wasn’t the majority’s fault. He said that the statutory definition of identity theft made the court’s job impossible. The whole thing, according to him, was unconstitutionally vague and Congress should just have to redo it.

Canaparo: And that’s the end of the opinions for this week. Next up, my interview with Will Trachman right after this.

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Canaparo: We are joined today by William Trachman, the general counsel from Mountain States Legal Foundation. Will has been, among other things, Deputy Assistant Secretary in the Office for Civil Rights at the Department of Education, the general counsel to a public school district, the Vice Chair of the US Commission on Civil Rights Advisory Board in Colorado, a law professor and a standup comedian. Will, welcome to the show.

William Trachman: Thanks, GianCarlo. It’s great to be here. Longtime listener, first time guest.

Canaparo: So, Will you are very well known for your work on civil rights, especially in the context of education. Has that always been a passion of yours? And if so, is that what led you to law school?

Trachman: Well, yes and no. So it’s definitely been a passion of mine. When my kindergarten teacher told me we’re all equal on the inside, I took that to heart. But that’s not why I went to law school. I have an uncle who’s an attorney, who’s a prominent criminal defense attorney in South Florida, and growing up I looked up to him as a role model. And of course, when you are something of a precocious child and you argue and you fight back against your parents’ rules, you get coded as a potential lawyer. I remember having a thought when I was 15 years old, “If I finish high school and go to college and then go to law school, I’ll be a lawyer in 10 years.” But it just panned out that way. Always been something that was on my horizon just naturally.

Canaparo: So after law school, you clerked for Judge Harris Hartz on the 10th Circuit. What was that experience like?

Trachman: Oh, it was amazing. So I actually took a year between law school and clerking to work at Kirkland & Ellis in DC. But by the time I’d gotten to Kirkland, I already knew that I’d be leaving to go to Albuquerque, New Mexico to clerk for Judge Hartz. And Judge Hartz is a big presence in Albuquerque. So we ended up going to the same synagogue and people would see him around town and say hello. He was generally beloved. He had a very close friendship with all the other judges on the 10th Circuit. So we had a lot of fun 10th Circuit clerkship poker games and hangout sessions. He was very close with then Judge Mike McConnell. So I got to know the McConnell clerks fairly well. And I wouldn’t trade anything for it. It was just a tremendous experience.

Canaparo: After the clerkship, did you go back to Kirkland or something else?

Trachman: No, so I decided not to go back to Washington D.C. I am from Fresno, California, the jewel of the Central Valley there, and decided I want to be closer to home. So I came back to California and worked in the San Francisco office of O’Melveny & Myers and spent several years there right after the clerkship.

Canaparo: What led you to become general counsel to the Douglas County School District in Colorado?

Trachman: Yeah, well, it’s an interesting path. So I left O’Melveny & Myers in 2011 to do some political work, worked on a 2012 presidential campaign. And by that point my wife and I had two young kids in San Francisco and we decided we wanted to keep growing and that San Francisco wasn’t a great place to have a large family. So we did some touring around the country to figure out what would be our next stop, and we ended up in Denver, Colorado thinking that was a place where we could ski and we could hike, and we had some family and friends here. I worked for a few years at a private law firm. And then in 2016, this incredible opportunity arose to work as the general counsel for the third-largest school district in Colorado. And at the time, Douglas County was at the forefront in school choice efforts and ensuring that parents had a large say in their kids’ education. So I couldn’t resist the idea of becoming general counsel to that school district. I applied and got the job and spent just a little bit over a year there before getting a different opportunity to go back to Washington D.C.

Canaparo: So before we move on to that experience, when you were at Douglas County, you mentioned that it was at the forefront of school choice efforts. What did that mean and what was your role in that?

Trachman: Yeah, so at some point in the early 2010s, the school district decided to embark on a voucher program. So they had a pilot program that gave something like 500 parents the opportunity to use a school voucher to take their public funds to private schools of their choice. There was a significant amount of litigation over that, the program was enjoined. I ended up overseeing the very tail end of that litigation. Part of the case was at the US Supreme Court at the same time that the Trinity Lutheran matter was pending, and so our case was being held for Trinity Lutheran. When that got resolved in favor of the church that had had the playground in that case, our case was GVR, or granted, vacated and remanded back to the Colorado Supreme Court. And then the school board flipped, and so they rescinded the voucher program before it got final resolution in the courts.

Canaparo: Gotcha. Now, that wasn’t the only case that went to the Supreme Court from Douglas. There was also Andrew v. Douglas County. Can you tell us about that case and your involvement?

Trachman: Yeah, even though I was only there a little bit over a year, it was a spicy year for sure. So I arrived in November of 2016. In January of 2017, only two months later, we were in front of the US Supreme Court. Neal Katyal was our attorney who argued for us, and it was an amazing experience being in the front row of the US Supreme Court. I got one of the quills that the court gives to folks who are arguing at council table, and I managed to get admitted to the Supreme Court on that day when the school district had an [inaudible 00:16:05] before it. So I remember distinctly Chief Justice Roberts saying, “Mr. William Trachman, you’re admitted to the Supreme Court bar.” So that was a nice moment in my career.

Canaparo: That event, that must be quite the moment.

Trachman: It is, it is. For sure.

Canaparo: So you mentioned returning to Washington D.C., that was when you were appointed Deputy Assistant Secretary in the Office of Civil Rights at the Department of Education. How did that come about?

Trachman: Yeah, so I applied for that job. I was very happy at the school district, and then when President Trump won and the school board that I had worked for flipped, I decided it was probably time to look for a new opportunity. So I decided to pick up my things and move to Washington D.C.. My wife and our four kids, we’d grown by that point from two to four after moving to Denver, they stayed behind thinking that it was too much of an upheaval to move the family to Washington DC. So I commuted back and forth, taking the last flight possible out on Friday and the last flight out possible on Sunday and getting back to DC to work the full week. It was a tremendous opportunity.

So as most people have heard, the Department of Education has an office for civil rights that has jurisdiction over administrative complaints alleging violations of civil rights laws like Title IX or Title VI, which covers race discrimination in schools, or Section 504 of the Rehabilitation Act, which covers disability discrimination. So I lived and breathed civil rights law for just over three years working on Title IX regulations, evaluating and rescinding some guidance that had been issued by the Obama administration, and then working with the political team in Washington DC to work on the agenda that Secretary Betsy DeVos had in making sure to reform education policy and civil rights policy.

Canaparo: Can you unpack for us some of your work on Title IX, especially in light of the fact that it’s been in the news lately as the Biden administration tries to finalize its own Title IX rules?

Trachman: Yeah, it’s interesting, I somewhat stumbled into Title IX as the general counsel for Douglas County Schools, and then it became a passion of mine. It’s just a very intriguing statute that has all sorts of components to it. So lately, you’ve probably been hearing about transgender issues and athletics issues. At the time that I joined the department, the biggest thing on the table was due process, especially post-secondary education, college education where someone is accused of sexual harassment and doesn’t have the evidence before them or a right to cross examine the person who’s accusing them. And it was very important to Secretary DeVos that we balance that playing field, which had been tilted a little bit too far against due process during the Obama years.

So my work involved, how can we balance this playing field because we want to enshrine protections against sexual harassment in federal regulations, but at the same time, we want people to be able to have the accusations in front of them, have the evidence that’s relevant to them, and then have their fair say to dispute the allegations and to counter them if they really are unfairly charged with sexual harassment. It wasn’t until the very end really that some of the transgender issues started to heat up. But they did heat up very quickly in terms of athletes who were transgender and were blowing away their competition who were biological female athletes. So a lot of that did become very hot button stuff while I was there. And it’s all very fascinating, of course. Every issue has its own set of arguments and counter arguments, but we were involved in both leveling the playing field on the due process issue and then in administrative complaints deciding in favor of biological females who had lost out on competitions to transgender athletes.

Canaparo: On the due process front. The Biden administration’s rules would largely undo the due process rules that your department put into effect and return to something like the Obama rules where if you’re accused of sexual assault on a college campus, you have very, very few due process protections. What is the argument in favor of that position and what do you make of it?

Trachman: What’s the argument in favor of something that I’m not in favor of?

Canaparo: Correct.

Trachman: Good question. So the Obama folks had at bottom the idea that schools ought to find a lot of sexual harassment occurring and respond to it in somewhat vague and ambiguous ways. So whether that’s a no contact order between students or a removal of one student from school, that ought to be happening fairly frequently. So they lowered the standard for what constituted actionable sexual harassment to something that was severe or pervasive. And so if that were your main concern, if your main concern were just finding every potential instance of what arises to a federal civil rights violation, that would be what you do.

On the other hand, the DeVos Department of Education had the idea that sexual harassment is a terrible evil, and that local school districts have the primary responsibility to respond to that, and it becomes a federal civil rights issue that the Department of Education is responsible for getting involved in only if it’s severe, pervasive, and objectively offensive, so it’s a stricter test for when sexual harassment occurs. And that’s the sort of mentality you would have if you care more about giving the first responsibility to localities as opposed to an agency in Washington DC.

Canaparo: You also mentioned that you worked on Title VI, which forbids racial discrimination in programs receiving federal funds. What did you do in the context of Title VI?

Trachman: Well, the Obama administration had really gone very far on Title VI. This is the idea that schools can’t discriminate against students based on race either directly or, under Obama, indirectly through what’s often called disparate impact analysis. So one of the Obama era crowning achievements was a 2014 guidance letter and guidance package saying schools need to be really careful about their discipline numbers. So for instance, if you have 20% of your school made up of African-Americans and 40% of the people who are suspended or expelled are African-Americans, that is enough for us to think that you may be violating federal civil rights laws just based on the numbers. And we didn’t think that that was a good way of looking at Title VI. And it also led to some tragic instances where students who maybe should have been disciplined were not because schools were afraid, “Look, if we discipline this person, we’re inviting a federal investigation.” So an individual who ought to have been suspended or otherwise disciplined, stayed in the school environment and continued being violent or dangerous with their colleagues or teachers.

So when we got in there, we quickly assembled a series of listening sessions and ultimately withdrew that guidance in December of 2018 on discipline. And then we also withdrew a number of guidance documents that the Obama administration had issued on affirmative action and diversity. Those guidance documents tended to encourage schools to push it to the limit when it came to using race as a factor for admissions and scholarships, and we didn’t think that was appropriate. We thought that Title VI speaks for itself and that there really isn’t a role for the Office for Civil Rights of encouraging schools to push it to the limit in terms of what’s allowable.

Canaparo: So what I want to talk about racial preferences more in a minute because you’ve done quite a lot of work on them at Mountain States Legal. But first, how did you end up at Mountain States?

Trachman: Well, I left the Trump administration on January 20th, 2021. I think I might’ve been the last guy out the door. I was, by that point, working from a regional office in Denver. And by the time I walked out the door of the federal building just about noon, the photos of President Trump and Vice President Pence had already been taken down from the federal building. But I had known for a few months, of course, since the election had occurred, that I would need to be job hunting. And Mount States Legal Foundation is a storied law firm. We’ve been around over 45 years doing natural resources work, equal protection work. And then the last couple of years we’ve launched both a Second Amendment center and a First Amendment practice group, which we’re very proud of. So I think I was funemployed for maybe a total of eight days before joining Mountain States and deciding this was going to be the next step of my career. Those eight days were glorious. I was able to sleep in and go skiing and enjoy my family, but I really didn’t know what to do with myself, to be honest. So I’m glad I didn’t have to be unemployed for too much longer than eight days.

Canaparo: What do you do as the general counsel? Are you involved in litigation, backside management, little of both?

Trachman: Yeah, a little of everything. Jack of all trades, master of all. So I lead the Equal Protection Practice, naturally given my background in civil rights and constitutional law, and then oversee anywhere between four and seven attorneys, depending on how full our legal department is. And at the same time, we have a number of business obligations like contracts and internal matters that we have to do. So a general counsel, I’m sure just like any private firm really, is running constantly doing whatever pops up that day. And of course, at the same time, trying to manage your own caseload.

It’s been a very rewarding experience getting to mentor younger attorneys and getting to see the progress that other folks in the liberty movement have made. It’s also nice to see your friends. When you go to Federal Society events or Heritage Foundation events, you get to see the people that you work with and that you’re sharing ideas back and forth with. It’s very different than working in a private firm where of course you have your cases and they have their cases, so it’s kind of hard to have common ground. But when you’re all working on similar constitutional or administrative law issues, it’s nice to be able to pick up the conversation right away. So it’s been a terrific two and a half years.

Canaparo: So on the equal protection front, you have had several high profile cases, one of which is Young v. The Colorado Department of Corrections. Can you tell us about that case?

Trachman: Yeah, I’m really excited and proud of this case. So our client is a gentleman named Josh Young, who was a prison guard at the Limon Correctional Facility, and he was a rising star in the Department of Corrections in Colorado. Promoted twice very early on in his career, and became a housing sergeant and a visiting sergeant. So that’s someone who has to vet people when they want to come into the prison and make sure that they don’t pose a danger and make sure that the prisoners’ visitors get in and that everything goes smoothly. So he was working in a relatively high stress environment. And then in 2020, 20221, the Colorado Department of Corrections announced that they were going to impose on state employees, including prison guards, very aggressive equity, diversity, and inclusion training, which is definitely in the news these days. And I’ve seen EDI training that has a lighter touch to it, but this was the opposite.

This included materials saying that all Caucasian people perpetuate white supremacy, that Josh himself and all white people think of all African American people using the N word. And that if you deny your racism and your implicit bias, that proves that you are merely showing your fragility as a white person, and that Caucasian people have to be careful about adopting white norms or white talk in the workplace. So this was not a bashful training session, and you can only imagine if a prison guard in a high stress situation were actually to adopt something like this as their internal mentality to say, “Oh, yeah, okay, I am biased against non-white people, and I do need to act differently toward them in order to level a playing field.” That would certainly lead to much more dangerous conditions in a prison.

So Josh, knowing that this training would recur year after year after year, felt that he had no choice but to resign and get out of the hostile environment. So we filed an EEOC complaint based on Title VII, the prohibition on race discrimination in employment, alleging a hostile environment theory. And we brought suit after getting a letter from the EEOC in Colorado District Court. That case was dismissed by the judge in February. And we have since appealed and filed our opening brief on May 1st, so just early this year, and I’m looking forward to litigating this issue at the 10th Circuit because I couldn’t find any other case where the employment training materials, which had essentially been blessed by corporate headquarters, were so aggressively anti-Caucasian and tried to impose this message that Caucasian people can’t escape their racism and their perpetuation of white supremacy. So I’m hoping that this will set a huge precedent that these sorts of trainings do violate Title VII under a hostile environment theory.

Canaparo: Yeah, we hear a lot about EDI or DEI everywhere these days. You mentioned some of it from his training, but can you unpack a little bit for us what it is, and when you hear the words diversity, equity, and inclusion, they sound like good words, right? So what’s the harm?

Trachman: Well, if it were true that training materials or employer materials generally increased diversity, equity, and inclusion in the abstract, I suppose there are good arguments on both sides about whether those things generally can be good. I certainly value diversity of intellectual perspectives when I’m in a conversation or on a board or otherwise trying to get the best ideas to come out. And of course, equity has a long history of being something that’s intrinsically valuable, whether it’s the equity in your house or the equity that a court dispenses with equitable rulings.

And that term, unfortunately, has been hijacked in a lot of instances by folks who say, “Well, the only way to do equity is to treat people differently.” And the only way to treat people differently is to consider their race or their sex or their sexual orientation. And that leads to people who have immutable characteristics that they can’t change from birth being the victim of discrimination. And so DEI in general is something that I think is becoming a punchline, really. People want to impose a way of thinking, a way of acting, and say, “Well, if we can loop this under DEI, we can pass it and make sure that people have to abide by it.” And I just object to that line of thinking.

Canaparo: Another case of yours, Carpenter v. Vilsack, relates to this concept of equity. Can you tell us about that case?

Trachman: Yeah, so I’m very excited about this case as well. So Leisl Carpenter, our client, is a rancher in Wyoming. She inherited the ranch from her mother who inherited it from her mother, who inherited it from her mother going back over a hundred years. And we are litigating this case with the Southeastern Legal Foundation, we’re co-counsel in the case. We brought it in 2021 against a Biden administration policy that stemmed out of the American Rescue Plan Act, which was a $1.9 trillion bill from March of 2021. And Section 1005 of that bill said that non-white farmers and ranchers who have loans from the Farm Service Agency are entitled to 120% debt relief. So already you can tell 120% is higher than 100%.

Canaparo: That’s just free money at that point, right?

Trachman: Yeah, yeah. It’s a windfall. And you didn’t have to have suffered under COVID-19. You didn’t have to have suffered previous discrimination. You didn’t have to have any other qualification besides your race in order to qualify for this program. And so Carpenter v. Vilsack is one of the cases that was filed around the country challenging Section 1005. In another case that we filed in Tennessee, we got the program halted with a preliminary injunction. But the program has been repealed by the, quote-unquote, Inflation Reduction Act. And so we, I think, are the only folks that are continuing to litigate this issue.

And the issue is less about the equal protection clause and more about mootness because the government is saying, “Well, we’ve repealed the program. What do you want? It’s moot now.” And we’re saying, “Well, you made a bunch of payments on Section 1005 that were racially discriminatory before the program was halted. And so that is an ongoing equal protection violation, and you have to remedy that.” Now, maybe the remedy is you claw back those payments that were made. That’s not a very sympathetic thing for us to be arguing. Maybe the remedy is that our client is trued up and gets the same level of payment, or maybe there’s some remedy in the middle that the government wants to propose. But the answer can’t be that the government gets to rush as many payments out the door as it wants, and then when it’s enjoined say, “No harm, no foul.”, because the program has been repealed. That logic, I don’t understand.

Canaparo: In past cases, hasn’t the court held that merely the denial of equal treatment is itself an injury?

Trachman: Absolutely. And that’s a great point, GianCarlo. So we cite that case law in our brief. The government says, “Well, that’s fine, that’s where a policy is injuring you. And here, there is no policy that’s injuring. It’s the thing that got repealed that previously injured you, and so there’s no remedy. There’s no relief that we can give you because the only thing you’re entitled to is prospective relief against more injury.”

Canaparo: This is like saying, “I’ve stopped punching you, so you can’t make me pay your medical bill.”

Trachman: Yeah, yeah. I don’t know if you’re being tongue in cheek, but you’re actually completely right.

Canaparo: I am, but no.

Trachman: Yeah, yeah. So it is like saying, “We did as much unconstitutional stuff as we could do, and then we got called out on it, and now it’s water under the bridge because you aren’t being injured in the future.”

Canaparo: That doesn’t pass the smell test, as far as I’m concerned.

Trachman: I hope you’re right. I get people saying, “Oh, you sound heartless. You want to claw back these payments that were made in 2021? Or you want to the government to spend a bunch of more money?” So I’m glad to hear at least if I have you on the jury that it might be a good case.

Canaparo: Well, my word gets you nothing. So switching gears slightly, you also serve as the Vice Chair of the US Commission on Civil Rights Colorado Advisory Board. What does that work entail? And how does that relate to the discussions we’ve been having about racial equity in the law?

Trachman: So I’m sure you’ve heard of the U.S. Commission on Civil Rights. That’s the organization in Washington D.C. that has eight commissioners on it and evaluates a number of civil rights issues and issues reports to Congress. A lot of people don’t know that the U.S. Commission on Civil Rights has 50 or so state-based advisory committees, one of which is in Colorado. So I’m on the Colorado Advisory Committee, and I’m the vice chair of that. And we issue reports to the big guys in D.C. on the U.S. Commission on topics involving civil rights. So yes, a lot of that involves race. We’ve also done religion and immigration.

It was kind of hard while I was working in the Trump administration to issue a bunch of reports on hot button topics while I was working in civil rights. But currently, we’re evaluating whether school district attendance zones violate the Equal Access to Education Act because maybe they create more racial isolation than they’re allowed to under federal law. So it’s a very intriguing subject and I’m happy to do it. We had a hearing last Monday on May 15th where we had a huge amount of witnesses. It’s nice to have that feeling when you’re on the dais being testified to you, you get a nice feeling that people are giving you evidence and resources to make decisions.

Canaparo: So switching gears, you had mentioned earlier that you also now have a First Amendment program at Mountain States Legal. What can you tell us about that?

Trachman: Well, this is a great practice group. I’m very excited to be the current head of it. So we launched this in 2021, and we are focused on two aspects of the First Amendment, so free speech and free association. We are letting other groups handle free exercise and establishment clause cases. We are doing mostly compelled speech cases. We filed a number of amicus briefs and cases that are before the US Supreme Court, either at the petition stage or the merit stage, and really just trying to make the law broader in terms of what the Supreme Court has said about disallowing compelled speech. We filed an amicus brief two weeks ago in a case right here in Colorado called Masterpiece, which I’m sure many of your listeners have heard about, involving a customer who demanded a pink and blue cake for their transgender celebration case. And we are looking for good clients in this area. So for folks who are listening who are interested in pressing their own free speech rights, you know, can find our information on our website to talk about whether you might be a good client for Mountain States Legal.

Canaparo: So at the beginning of this interview, I teased for the audience that you have a side gig as a standup comedian, and what can you tell me about that?

Trachman: Yeah, so thanks for letting me plug this. So I would call it a nascent effort, to be fair. I’ve only done a few gigs. But lawyers don’t get enough credit for when they can be funny. We can get taken too seriously sometimes. And it’s like the old joke, “What do you call a hundred lawyers at the bottom of the ocean?”

Canaparo: A good start.

Trachman: No, no, no. It depends on the lawyers, John. So we try to take ourselves a little bit less seriously sometimes. And of course, I end every gig by saying, “As Jeb Bush said, please clap.” So it’s definitely up and coming. You’ll probably not see my name in big lights this year or next year. But maybe by the time that I’m in my older years, I’ll be headlining at Carnegie Hall.

Canaparo: And Will, one final question for you. If you could have a conversation with any Supreme Court Justice, living or dead, who would it be and what would you talk about?

Trachman: Well, I know a lot of your guests say the first Justice Harlan. I think I’d have to go with Justice Scalia. I only got one interaction with him in my lifetime when he was doing his book tour. And the one interaction with him, he corrected my pronunciation of a Latin phrase. I said, “My favorite canon that you talk about is the expressio unius canon.” And I thought I was being very erudite and smart by mentioning that when he was signing my book. And he just responded completely deadpan, “It’s expressio unius.” And that was my only interaction with Justice Scalia. So I would have to go back and say, “Give me another chance. I’ll say my Latin phrases properly this time.”

Canaparo: Well, Will, it’s been a delight to have you on the show. Thank you so much.

Trachman: Absolutely. It’s been my pleasure, and it’s a great show all the time. I love listening.

Canaparo: Appreciate it, Will. All right, Cully, you are in the hot seat this week.

Stimson: Oh, boy.

Canaparo: So I’m sure Zack is very pleased to be out of it.

Stimson: Yeah, I always feel bad for Zack, but here I am. Okay.

Canaparo: So sometimes cultural references, sports, art, literature, make their way into the Supreme Court’s opinions. Sometimes children’s stories do, and very often actually Lewis Carroll’s stories about Alice in Wonderland. We got one such citation yesterday in Dubin. So today’s trivia is all about Alice’s Adventures in SCOTUS Land.

Stimson: Good. Well, as a dad who’s read Alice in Wonderland to my kids, I have a good feeling.

Canaparo: Okay, well, you better do well then.

Stimson: All right.

Canaparo: Number one, yesterday, Dubin, which we discussed before the interview, the court referred to one of the characters that Alice meets in Through the Looking Glass, and it said it relied on this character for the proposition that Congress, like this famous character, has the power to give words unorthodox meanings. Which character has that power?

Stimson: Well, I hope all of these are this easy. Humpty Dumpty sat on a wall.

Canaparo: That’s correct. That is correct. When Alice meets Humpty Dumpty, she finds that he uses words in all sorts of strange ways, and she asks him what he’s doing, and he says, “When I use a word, it means just what I choose it to mean. Neither more nor less.”

Stimson: Indeed.

Canaparo: All right, bonus question. The court’s citation to Humpty Dumpty in Dubin is a quote from an earlier opinion by a justice famous for his personal library of literature. Who was it?

Stimson: So my gut tells me, when I think about who the justices were who really were sort of loners and loved their books, I jump immediately to Justice Souter.

Canaparo: That’s right. That’s exactly right.

Stimson: Oh, good.

Canaparo: Justice Souter cited that Humpty Dumpty line in Lopez v. Gonzalez. He was not actually though the first justice to use that particular Humpty Dumpty quote, but he did not actually provide a citation to the first use of it when he used it. The first use of it ever comes from a dissenting opinion in Shapiro v. United States from 1948, which leads us to our next question. The author of the dissenting opinion in Shapiro was apparently an enormous Alice in Wonderland fan. He is solely responsible for all of the court’s earliest citations to Alice in Wonderland. Who was it? And by way of a small hint, this justice often invoked Alice in Wonderland to criticize opinions by arch liberals Justice Brennan and Justice Douglas.

Stimson: Well, I think the justices that had the most fun poking fun at Brennan and Douglas was Felix Frankfurter.

Canaparo: Correct. That’s exactly right. Well done. That’s right. After he retired, there was a gap of about a decade where there were very few Alice in Wonderland citations in the Supreme Court reports. But another justice picked up Justice Frankfurter’s trend. Like Frankfurter, he very often compared his liberal colleagues’ disdain for the text of laws to, “The words have no meaning world of Wonderland.” Who was that justice?

Stimson: That’s tougher. Well, a real wordmeister and a person and lover of literature and wine and Italian food was Scalia. So my guess is Scalia.

Canaparo: Now that would be a good guess. Actually, I will give it to you because Justice Scalia did actually cite to Alice in Wonderland quite often. But it was Chief Justice Rehnquist who restarted the trend.

Stimson: So those are pity points.

Canaparo: Well, yes.

Stimson: Okay. Thank you.

Canaparo: But yes, you were right. Justice Scalia did cited as well. In fact, in Los Angeles v. Patel, this is our final trivia question, this was a 2015 decision where the court held that an opportunity for pre-compliance review is constitutionally required for most government inspection programs. Justice Scalia in dissent said that, “The majority’s approach was equal parts Alice in Wonderland and...” This particular famous dystopian novel because, and I quote from his opinion, “It protects motels from government inspection by authorizing government agents to seize the registers, which would otherwise not be inspected.” What novel did he cite alongside Alice in Wonderland?

Stimson: Well, as a proud graduate of Kenyon College and an English major, you have to know this answer. It’s 1984, correct?

Canaparo: That is correct. It was 1984.

Stimson: Okay, good.

Canaparo: That’s right. Yeah, they’re the government agents very much like what this majority said they could do in Patel. They seized and burned books for the owners’ protection from harmful ideas.

Stimson: Very nice.

Canaparo: Well done, Cully. You really did well today.

Stimson: Zack should be quaking in his boots. I doubt it.

Canaparo: Well, that’s it for today. Thank you to everyone for listening to SCOTUS 101. Be sure to subscribe on Spotify, Apple Podcasts, or wherever else you listen, and follow us on Twitter @scotus101 or 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