Supreme Court Shift: Interpreting Changes in Justices, Majorities, and Philosophies

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This week on Hubwonk, host Joe Selvaggi talks with Ilya Shapiro, constitutional scholar, author, and senior fellow of Constitutional Studies at the Manhattan Institute, about the changing makeup of the court, and how this term’s most high-profile decisions reveal the judicial philosophies that comprise the current bench.

Guest:

Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. Previously he was executive director and senior lecturer at the Georgetown Center for the Constitution, and before that a vice president of the Cato Institute, director of Cato’s Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review. Shapiro is the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court (2020), coauthor of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution (2014), and editor of 11 volumes of the Cato Supreme Court Review (2008-18). He has contributed to a variety of academic, popular, and professional publications, including the Wall Street Journal, the Harvard Journal of Law & Public Policy, Washington Post, Los Angeles Times, USA Today, National Review, and Newsweek. Shapiro has testified many times before Congress and state legislatures and has filed more than 500 amicus curiae “friend of the court” briefs in the Supreme Court. He lectures regularly on behalf of the Federalist Society, is a member of the board of fellows of the Jewish Policy Center, was an inaugural Washington Fellow at the National Review Institute, and has been an adjunct law professor at the George Washington University and University of Mississippi. He is also the chairman of the board of advisers of the Mississippi Justice Institute, a barrister in the Edward Coke Appellate Inn of Court, and a member of the Virginia Advisory Committee to the U.S. Commission on Civil Rights. Earlier in his career, Shapiro was a special assistant/?adviser to the Multi-?National Force in Iraq on rule-of-law issues and practiced at Patton Boggs and Cleary Gottlieb. Before entering private practice, he clerked for Judge E. Grady Jolly of the U.S. Court of Appeals for the Fifth Circuit. He holds an AB from Princeton University, an MSc from the London School of Economics, and a JD from the University of Chicago Law School.

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Joe Selvaggi:

This is Hubwonk. I’m Joe Selvaggi

Joe Selvaggi:

Welcome to Hubwonk, a podcast of pioneer Institute, a think tank in Boston. It has been said that each new justice is a new court as the 2022 Supreme court term winds to close the first term to include all three former president Trump’s nominees court Watchers, policy makers, and concerned citizens have new information about how each of the nine justices apply the 230 year old US constitution to modern legal disputes. Indeed, each court decision exposes the tension that arises between a constitutional democracy’s power to enact laws and the constraints imposed when those same laws must comport with constitutional principles to observers. It can be a relief when the court’s majority limits legislative prerogatives that they do not favor, but unsettling. When the court strikes down, laws seen as necessary for our modern polity. Nevertheless, each case reveals the complexity and nuance of each Justice’s view of their role in the process.

Joe Selvaggi:

What has this term told us about the philosophical makeup of this court? How do the most recent high profile decisions reveal each Justice’s views? And what does the court’s makeup suggest about how it may rule in the future? My guest today is legal scholar, author, and senior fellow of constitutional studies at the Manhattan Institute, Ilia Shapiro, his new book, Supreme disorder, judicial nominations, and the politics of the nation’s highest court just released in paperback this week looks at the controversies of past courts and their decisions. Mr. Shapiro will share with us the way in which individual philosophies influence Justice’s decisions, how the cases in this current term reveal the views of the nine justices and what those views will likely pretend for the court’s future decisions. When I return, I’ll be joined by constitutional scholar, Ilya Shapiro. Okay. We’re back. This is Hubwonk I’m Joe Selvaggi and now pleased to be joined by author and senior fellow on constitutional studies at the Manhattan Institute. Ilya Shapiro welcome back to Hubwonk, Ilya.

Ilya Shapiro:

Good to be with you, Joe. A lot’s happened since we last talked.

Joe Selvaggi:

Indeed it has. I don’t wanna dwell on the past. We we’re always looking forward but there’s two big pieces of news. Just this week, one of course, is that you are now a brand new member of the Manhattan Institute. Congratulations on that. The other big piece of news that I’m sure our listeners are interested in is that your wonderful book that we discussed in an earlier episode, Supreme disorder, judicial nominations, and the politics of America’s highest court just came out on soft cover. So paperbacks, very soft plugging the show looks good, looks bigger for our listeners who already bought the hard copy. Is there any difference with the new a paperback?

Ilya Shapiro:

Yeah, so I caught some typos that’s always good to do. And I added an epilogue about 3000 words on well, what’s happened since the hard cover came out in the fall of 2020, which is two more justices Amy Coney Barrett and, and Ketanji Brown Jackson,

Joe Selvaggi:

Indeed a lot has happened perhaps not a whole new book’s worth, but a lot certainly to talk about. So let’s jump into, we wanna do a around the world sort of a review of what’s happened in this past term. Everything everything’s been decided now we closed the book on this, this term, so let’s do a little recap and and start at the beginning. I want to talk about judicial philosophy specifically as it be pertains to the nine justices that we now have including Breyer. We’re not gonna talk about Ketanji Brown Jackson just yet. But before we jump into the cases themselves that were decided, let’s define some terms for our listeners who were not constitutional scholars, ones that have been thrown around in the wake of the decisions specifically, what is, what people will call an originalist what is what people call a textualist? We also have heard the word institutionalist and finally what I would call broadly consequentialist. So let’s start at the beginning with let’s say originalist. What, what does that mean?

Ilya Shapiro:

Originalism is a, a method of constitutional interpretation that looks at the original public meaning of a constitutional provision. That is the original constitution, the, the powers that are granted to Congress that was ratified in 1789. So what does the power to regulate interstate commerce mean? When it was ratified in 1789, we look at the Federalist papers. We look at contemporaneous dictionaries. We try to figure out what those words mean, or the 14th amendment, obviously much in play this term, the meaning of due process of law, the meaning of equal protection. What did those words mean? When the 14th amendment was ratified in 1868. So it’s, it’s, it’s not getting, trying to get into the head of James Madison or Thomas Jefferson. And what would they have thought of violent video games or something like that? It’s, it’s looking at the words on the page, trying to understand their original public meaning and look originalists can disagree just like historians can disagree about how to interpret certain events in our, in our history.

Ilya Shapiro:

That’s, that’s okay. Both, both judges and academics can have a lively discussion, but that’s what originalists try to get at textualist is, is a related interpretive method that’s applied to statutes. So we, we focus on the text of the clean air act, say that was an issue in one of the big cases this term. And so when, when that was passed in the seventies, when it was amended in the nineties what do those words on the page mean again, not what Congress or the sponsors of the legislation intend not what someone might have understood it to mean, and they could have been wrong, but what do the words on the page actually mean? What does the text mean? And then you get to institutionalist, which isn’t a method of interpretation so much as an approach.

Ilya Shapiro:

And so John Roberts, the chief justice is often called an institutionalist because he operates not primarily at trying to get at what the text means necessarily, or the original public meaning of a provision is, but he wants to preserve the institutional reputation of of the court. And so might wanna move not as quickly as some of his other colleagues that say I’m just gonna interpret as I see fit and let the, the chips fall where they may Roberts tries to be a little KR, maybe narrower in, in what kind of opinions he writes. And so an institutionalist cares about the institution for that matter. It doesn’t have to be just the court could care about the institutions in general Congress, the presidency you know, maintaining those big things rather than a focus on the words on the page and finally consequentialist or sometimes a related might be a, a pragmatist you know, looking at the consequences, the result of a particular holding of a particular ruling might be and, you know, either with a view to not rocking the boat too much, either with a view of, I don’t know, not costing the government too much money, not disrupting society in some ways, or in any of that, weighing those practical concerns in some measure, not, not exclusive to everything else, but, but that’s a significant part of, of, of what that kind of jus cares about

Joe Selvaggi:

Indeed. So you you’ve laid that out very clearly. Before we get into, you know, how each justice ruled on every case, is there a single continuum on which you could map each of the justices? Well, we’re often talking about liberal or conservative or Republican and Democrat. Is, is there a continuum or is it more a scatter shot? There’s so many dimensions of, of the way a justice can look at a case that it doesn’t really map to what we would consider political preferences.

Ilya Shapiro:

Yeah, I think, I think it’s too simplistic to call talk about a spectrum or even a three dimensional spectrum, cuz there’s more than kind of three AEs on which one can, can look at the justices or can any, any, any judges methodology in terms of, you know, the, the practical outcomes of their votes, you know, we can talk in shorthand and we do talk in shorthand about, you know, liberals and conservatives. That’s unfortunate because I don’t think any of them make decisions based on trying to implement liberal or conservative policy preferences. You know, that tends to, you know, end up as the case for the, the, the most politically salient controversies. But it’s, it’s, it’s shorthand that, you know, can be useful in talking shortly, but it, you know, I, I, I would certainly not want the public to generally think of them as, as junior varsity politicians ideologically let alone in terms of partisanship.

Ilya Shapiro:

I hate it even more when people talk about the Republican justices or the democratic ones, I sometimes talk about the Republican appointed justices or the democratic appointed justices, which is, is again, somewhat useful shorthand because that’s often relevant and increasingly relevant in modern times because the, the parties seem to have adopted divergent theories of interpretation. But still you know, you, the reason why you’re interviewing someone like me is to, to drill down beyond the, the shorthand that you can in like a tweet or a, a short associated press story about the news of a particular case.

Joe Selvaggi:

Indeed, you’re you are, are careful when you, in your writing, in your books, in your articles to, to to discourage lazy thinking and reducing everybody to political through the political lens. So let’s again on, on, by way of background, let’s start with some history of how we get rights. We like to think of ourselves as a rights based society those rights foundationally, if we’re talking about the Supreme court, they’re looking to the instantiation of those rights, I, I hope you’ll agree that that starts with the constitution. So let’s talk about, we, we often refer to the first 10 amendments as the bill of rights which by my reading, our, our so-called negative rights or, or natural rights those are the rights we can’t have taken from us. Describe for our listeners, what are we talking about when we talk about fundamental rights or those rights in the bill of rights,

Ilya Shapiro:

Those are separate questions in a sense the legal scholars talk about enumerated rights, which just means listed rights, the first eight amendments say, you know, the first amendment, speech, religion right to petition, right, to assemble second amendment, right. To keep and bear arms et cetera. But the founders were careful to add a ninth amendment that says that the enumeration of these rights is not to deny or disparage others that are retained by the people. And so to the extent that modern jurisprudence, and we’ll get into this a little bit, because that matters in how Dobbs the abortion case and Bruen the second amendment case were decided to the extent that we, you know think that enumerated rights, those that aren’t listed in the first ten amendments are somehow secondary to the ones that are listed.

Ilya Shapiro:

That’s clearly not what the, the original public meaning nor the original intent of the framers. Would’ve, would’ve been, we’ve talked about fundamental rights in a legal sense, not in kind of delay conception of what is fundamental, what’s basic what’s most important, but in the legal sense because of the way that the jurisprudence has evolved over decades, specifically for UN-enumerated rights, those that aren’t courts often ask is it given rights claims that based on something that’s fundamental or is it ancillary? Is it not a core right that we have under the constitution? I don’t think that’s quite the right way to look at it because the there’s no indication that when the framers were instituting the constitutional provisions or especially when the framers of the 14th amendment, the post-Civil War amendments were looking to protect rights you know, they could have, they had the English language, they had the terminology, they could have said, these are the fundamental rights.

Ilya Shapiro:

They didn’t do that. You know, they, the 14th amendment speaks of due process privileges or immunities equal protection. They could have just said, the first eight amendments are now applied to the states, but they didn’t, they spoke in these, these other terms. So the modern jurisprudence has gotten away, I think, from the original public meaning of rights protections. But nevertheless going back to the thirties in a case called caroling products, the famous or infamous footnote four does bifurcate rights effectively into fundamental and non fundamental ones. And that’s why, especially with UN-enumerated rights, claims rights that aren’t explicitly listed in the first eight amendments. That’s what jus tend to think about is, is a particular claim involving a core or fundamental, right?

Joe Selvaggi:

So the, the constitution establishes enumerated rights list them, and then says in the ninth, there are other rights that are not here, but nevertheless our rights as well. You mentioned the 14th. I wanted to go a little bit deeper on that because it does speak it does have influence on some of the decisions that came down this term. I’ll read it. My favorite part of the 14th amendment is from section one, a quote, no state shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States, nor shall only state deprive a person of life, Liberty, or property without due process of law, nor deny any person without a, within his jurisdiction, the equal protection of the law. So effectively, as you’ve mentioned, it says that these liberties or these rights that start or that are protected by the constitution at the federal level also apply to the states say more about the fact that reading more deeply. I, I, for myself, I discovered both. It means that states can’t infringe on rights, but also it has a affirmative obligation to protect rights, as well, say, say more about this, of course the 14th in the wake of the, the civil war and the, and the stain of slavery. But, you know, that’s the context, but say more about what that means.

Ilya Shapiro:

The original constitution only protected us against the federal government. The bill of rights only protected us against violations by the federal government. That’s why the post civil war amendments, the 13th, that outlawed that outlawed slavery, the 14th, which you just read in the 15th, which prohibited racial discrimination in voting that’s known as the second founding because it fundamentally reoriented restructured our constitutional order, such that an individual could go to federal court to enforce his or her own individual rights against state violation. That that was an innovation. So the 14th amendment says that states can’t violate your due process of law or equal protection of the laws or privileges or immunities of citizenship. Again, that’s that, that was a revolutionary type of thing. It, it restructured fundamentally our constitutional order. And so you know, when we’re talking about most of the so-called cultural war issues or rights claims, whether it’s abortion or guns, or same-sex marriage, the things that tend to come up, generally, those are challenges to state laws. And so even in the Bruin case, which we’ll talk about regarding the right to their arms sure. It’s a second amendment case, but it’s really a 14th amendment case because that’s how that right. Applies to the states.

Joe Selvaggi:

And one more, bit of a housekeeping before jump into the cases, the concept of stare decisis, or I think literally means

Ilya Shapiro:

Let the decision

Joe Selvaggi:

Stand by. Yeah. Let, stand by things decided how does that weigh in on the court effectively says, you know, we, we need to look to the past a lot has been alleged that in, in confirmation hearings those who have said that they believe in stare decisis and then changed their mind, your book, I think was very useful in saying while it’s a principle, it’s one that everybody seems to have violated. I don’t know if that’s the right word say more about stare decisis.

Ilya Shapiro:

I think the only two justices on the current court who are consistent with regard to stare decisis are Clarence Thomas and Atlanta Kagan. Thomas I’m answering the question backward because I haven’t defined it yet. I’ll, I’ll get to that. But Thomas basically always prefers to get the law, right. You know, forget, you know, how disruptive overturning the precedent might be and Kagan, I don’t think ever votes to overturn precedent probably because she’s always had an eye on Roe V. Wade. That’s how this concept is often kind of viewed has been viewed through that lens, but it’s the idea that sometimes disrupting the legal architecture or the stability, social stability that kind of disruption is greater and, and, and would be a bigger, wrong than writing the wrong of an erroneous previous decision. And so there, this is a Prudential doctrine it’s not listed in the constitution or anything like that, but it’s the idea that sometimes it’s better to let erroneous precedents stand than to correct it.

Ilya Shapiro:

Just because for example, businesses have been built on those kinds of reliance interests, if you rule a certain way. And all of a sudden, you know, all of fortune 500 companies have to dissolve that’s quite disruptive courts would wanna someone who has a, a, you know, thinking about stare decisis would, would want to avoid that kind of result. And so again, Thomas doesn’t care so much about that. He’s the most consistent in saying I wanna get the law, right. I don’t care if it’s a hundred year old president that lots of people have relied on. I don’t care if it’s last term I’m, I’m gonna vote for what the right law is. Kagan says, no, we, we shouldn’t disrupt. We should build on, on the previous and, and, and things like that. And everyone else is in between and, and is very much fair weather. That is the, the, the, if one of the considerations in stare decisis is how wrong was the previous precedent. Well everyone essentially, other than Thomas and Kegan said, you know, finds precedent that they really like to be not very wrong at all. And, and precedent, they don’t like to be egregiously wrong as the, as the as the standard has evolved.

Joe Selvaggi:

So, okay. Now we’ve set the table, let’s get into the, some of the cases let’s start with the most let’s say controversial, the perhaps I, I don’t know for our listeners, so we’re talk, gonna talk about Dobs versus Jackson women’s health organization, which did indeed explicitly overturn the finding in row which has lasted for nearly 50 years, 1973. Explain the argument and then let’s talk about the way in which Dobs refuted the argument. The argument for Roe. I mean, again, I know these are deep topics, so we’re, you know, these are sort of the quick explanations, but give us a quick,

Ilya Shapiro:

Yeah, the rulings themselves are not that complicated. And, and should I wrote a piece in the in the Washington examiner last week saying that they’re, they really shouldn’t be, you can disagree with the various rulings in, in these big, controversial cases, school choice and guns and religion and abortion. But they shouldn’t be seen as, as radical or, or extreme or, or complicated in some way. So the ruling in dos is is simply that there is no deeply rooted right to abortion as justice Alito found in his majority opinion in looking at American history and therefore it’s subject to state regulation rather than some federal baseline. I wouldn’t have decided it quite that way. I think I, I, I do think that Roe versus Wade is without constitutional basis. You know, I would’ve looked at things a, a different way in terms of, as you said, natural rights through the privileges or immunities clause rather than this deeply rooted test that was put in, in a case 30 years ago called Luxford.

Ilya Shapiro:

But, but in any event this even before overturning Roe and Casey, because importantly planned parenthood versus Casey for the last 30 years has been the governing standard for looking at abortion restrictions and regulations. What, you know, Roe put in a, a trimester system and kind of a sliding scale based on viability of the fetus of when states can regulate Casey threw that out and it preserved the right to abortion, of course, but it, it put in an undue burden standard. And, you know, for the longest time, the joke that was that what what’s an undue burden while it’s whatever gave justice Kennedy a headache cause he’s the only one, he was the deciding vote and nobody else knew what, you know, what that actually meant. But this case came along from Mississippi, which had a a law restricting abortion past 15 weeks, I think with exceptions for, for the mother’s health curiously that law is actually more liberal than those laws in place.

Ilya Shapiro:

In most Western European countries, Germany, France, Denmark, Spain, you know, the, the, the list goes on and on. I think only the UK and, and, and the Netherlands have more liberal, less restrictive rules than that. And nevertheless that’s Mississippi’s law. The conventional wisdom before oral argument was that the court would sort of muddle through that this court might eventually overturn Roe, but this would be an incremental step. They’d find a way to uphold the missis, the Mississippi law without overturning Roe. Well, it turns out based on oral argument which changed everybody’s minds about how the case was gonna go. And this was confirmed by the eventual decision. Only John Roberts took that compromise position as it were everyone else, including the advocates for both sides said that the court had to go fully up or fully down meaning uphold or overturn Roe fully.

Ilya Shapiro:

Which was, which was interesting a bit of a gamble I probably for, for both sides advocates. But that’s that, that’s what they said. And, and ultimately that’s what the decision was, was based on first that the right was not deeply rooted in American history such as the modern jurisprudence regarding UN enumerated rights required that kind of analysis. And second principles of stare decisis do not militate for, for maintaining Roe and Casey, despite their lack of constitutional foundation, the dissenting justices, the three more liberal ones to use that shorthand argued mostly on consequentialist and stare decisis grounds, basically saying it would be too much of a disruption after 50 years to, to, to to, to overturn these precedent

Joe Selvaggi:

A as a, a constitutional matter. There is a lot of people who are concerned about this in the most extreme decision, if it, if it is indeed entirely left to the decisions of the states the, the health or the, the life of the mother, I I’m careful it’s not actually the health, or it is the indeed the life of the mother is that constitution protected. In other words, is the constitution recognized an absolute right for mothers to save their own lives in a life threatening pregnancy.

Ilya Shapiro:

We’ll see, I’m sure there’s going to be litigation over this because we’ve, we’ve already you know, less than two weeks after the decision came down, or I guess now it’s, it is exactly two weeks since the decision came down, as we’re recording this the the states have done all sorts of things. And I don’t know if there’s any law that’s been passed that does not have an exception for the life of the mother. But that would be, you know, it’s not that there won’t ever be litigation. Now that Roe is overturned if states acted arbitrarily or applied their restrictions unequally in some way, whether, you know, based on, on race or based on some other arbitrary consideration, then that would be subject to to litigation, or what about fetal abnormalities, or what about you know, there there’s definitions that legislative drafters in the various states could make errors or not foresee fully certain things.

Ilya Shapiro:

There was a hub of a few months ago. I think it was Missouri, or somebody was the way that their draft legislation worked didn’t even allow abortion for ectopic pregnancies that is implantation in the fallopian tubes, which are non-viable and, and by definition, life threatening. And that was a mistake that wasn’t some, I don’t think it was some moral judgment that, that some, you know, extremist lawmaker was putting in, they just didn’t draft it correctly. So you know, we’ll see litigation based on the way that different restrictions work.

Joe Selvaggi:

And I don’t wanna dwell in this case, but just one more issue. The, the Thomas concurrence went a step further in, in saying the, this right didn’t exist. And it was predicated on a I don’t know if you would call it an imaginary or a, a conjured right. Of, of, of, of privacy in this case that those other so-called privacy related rights in more modern cases, those that relate to interracial marriage, gay marriage right to contraception, those things that have been found to be constitutionally protected, it, it, it may undermine the, the foundation of those rulings and perhaps jeopardize those as, as recognized by the constitution. Do you see that, you know, is that a outlier, is Thomas, or is that sort of a, a true, let’s say originalist view of, of these kinds of privacy oriented rights?

Ilya Shapiro:

I, I think it’s, it’s not an outlier to criticize substantive due process because of the way the jurisprudence has evolved. It’s, it’s much more constitutionally sound to protect most substantive rights through the privileges or immunities clause than the due process clause. The due process clause isn’t wholly isn’t entirely procedural. So you know, a well functioning, transparent kangaroo court still violates the due process of law clause. But the way that the jurisprudence has evolved, you know, Thomas is quite right to say that, you know, for example, Roe itself, which was based on an earlier case Griswold regarding the right to contraception found that right to privacy not in the ninth amendment or the privileges or immunities clause there was a concurrence by justice Goldberg about the ninth amendment, but it was about how certain parts of the bill of rights have emanations that overlap making penumbras this very kind of physics, heavy like light beam analysis.

Ilya Shapiro:

And these rights are hidden in those, in those penumbras that that’s the legal term for that analysis is hogwash. So I, you know, I, to the extent that’s what Thomas is saying, I fully agree with that now, the consequences for the application of the right to privacy or some of these other things, that’s, you know, that’s not clear. Thomas himself, I’m sure would uphold some of these rights on an equal protection basis. He himself is in an interracial marriage. I’m sure he’s not trying to invalidate his own his own marriage, but the things like that, or same sex marriage for that matter, I think are more faithfully argued and protected under equal protection than a substantive rights protections, other things like contraceptives or private sexual behaviors say you know, you know, I, my, my own view is that privacy is certainly protected in various ways but substantive process, I think he was correct to identify the weakness there, but for practical purposes you have to note that the majority written by justice Alito and signed by joined by Justice Thomas joined by five members, not Roberts, he only concurred in the judgment, but Alito’s opinion did say that for various reasons, distinguished abortion from everything else, because with abortion at a certain point, there’s a second life in being, there’s a second human who has rights, what that point is.

Ilya Shapiro:

He says you know, courts, judges, lawyers aren’t equipped to point out, which is why he sent it back to the states. But unlike with all these other activities with consenting adults here, there’s a second, right. A second life in being, and finally, I don’t think there’s, the most recent polling about contraceptive shows a desire to ban contraceptives to be in the low single digits in America.

Joe Selvaggi:

Indeed. I don’t wanna dwell on that. So let’s move on another important case Bruen. We actually had an episode entirely entire episode of hub wonk on Bruin. We talked with your former colleague, Trevor burs about the issue. I just wanna ask you in your view, did the ruling I think it was a sixth grade decision, did it follow along the originalist versus consequentialist? In my reading of the dissent, it just said, look if we don’t do something about guns a lot of people die. It didn’t really appeal to some sort of weakness in, in the Bruin case, but rather just sort of you know, an emotional appeal to the consequences of, of holding Bruin.

Ilya Shapiro:

That’s exactly right, Joe, unlike Heller the, the previous second amendment case in 2008 involving the right to keep go guns at home for, for self defense where both justice Scalia’s majority opinion, justice Stevens’ dissent were dueling originalist opinions here. Thomas’s for the majority and this, by the way, we can, we can talk about this. I think this is the, really the term where after 30 years on the bench finally Clarence Thomas is at the, a Apigee of his powers because he’s the senior associate justice. And so in cases like Bruin and Dobs for that matter where the chief justice isn’t fully on board, it’s Thomas who’s either writing the opinion as he did in Bruin or assigning it as, as he did in, but Thomas’s opinion is, is very originalist and Briar’s in dissent is not it, it is consequentialist as you say it. So it’s, it’s different than what Stevens is was in, in Heller 14 years ago.

Joe Selvaggi:

So again, I wanna move on then to the West Virginia versus EPA, I found this very interesting it didn’t get a lot of press, but it’s something we talked about in our, in our earlier episode talking about at what point when Congress delegates power to con to an executive agency, at what point is it obligated to define you know, the limits of its, of its delegation of power? I’m, you know, I, I’m gonna use layman term and, and sort of paraphrase. I think the essence of what you said is the more important the issue or the larger, the mandate, the more the need, the obligation to define that in, in, in the delegation, meaning you can’t just give away huge powers in, in, in, in small ways, you have to be clear. And I think the, the the Supreme court decided against the EPA when regulating power plans say more about what your view of, of that decision was.

Ilya Shapiro:

Yeah. This opinion did get some press. It was decided on the last day of the term, an opinion by, by chief justice, John Roberts, and he paired it with another opinion in an immigration case where he ruled for the administration. So he’s trying to be cagey, you know, one for the, the administration one against and the opinion said as you were discussing that for major order called major questions, Congress has to be explicit if it’s giving that kind of awesome power to an agency, what the, what the government here argued starting with the Obama administration, and now with the Biden administration is that if you look at several provisions in the clean air act and you kind of almost like that pin numbers and emanations in the abortion context or the privacy context, if you put these various provisions together, that gives the EPA the power to regulate in this novel way, even though it’s you know, hugely economically significant.

Ilya Shapiro:

And the court rejected that because for regulations that of major questions, whether in terms of economics, in terms of social impact or what have you Congress really does have to speak clearly, we can’t just assume or defer to an agency’s interpretation of its own operative statute in that way. And it’s, it’s, it’s interesting. The court did not as many expected apply or discuss what’s known as Chevron deference, which is deference that judges give to agency interpretations. It simply said we don’t even have to get into that because the statute is, is, is silent. And we’re not gonna implicitly read in these major powers in major questions. Justice Gorsuch wrote a concurrent joined by justice Alito that expound more about giving guidance to lower courts about what a major question is.

Ilya Shapiro:

And that’s an important concurrence because those two Gorsuch and Alito were on opposite sides in a case called Gundy a few years ago, which used yet again, a different doctrine called non delegation. They were on, on opposite sides of applying the idea that Congress can’t delegate legislative power, but here on major questions, which is kind of the flip side of non delegation, they were together. So clearly the court is without having to get into some of these other doctrines using this major question doctrine to limit administrative reach. And so throwing the ball back into Congress’s court and saying, if you really want to have this, you know, awesome major, significant, controversial, clean power plan in place, you’re gonna have to legislate it and take the political hits yourself.

Joe Selvaggi:

Indeed again, going back to some of the themes in your book, it’s really Congress ought to be doing its job and, and legislating and, and and the executive branch ought to be executing those leg, those laws. I read the Kagan dissent and it was really chilling in that it’s essential argument for supporting the EPA was EPAs full of experts and Congress doesn’t know very much, so experts should be running the show, not elected officials. I, I, you know,

Ilya Shapiro:

As, as well as the kind of Obama pen and phone argument that when Congress won’t act I will, this is too important, an issue, you know, not to have this, this this law making on

Joe Selvaggi:

Indeed. Oh goodness. I heard my Kennedy school professors applauding Kagan’s point of view. But it’s not one I share. So we’re running outta time. I wanna jump into the, the final. These are sort of the tension of religion in one case is in a school and the other, well, it they’re both school related. One where the a football coach wanted to pray after our game Kennedy versus Bremerton school district, and the, also the school voucher in Maine that could be applied to religious schools. I think let’s just dilate a little bit and, and sort of talk about this idea of we, in the first amendment, we don’t wanna establish a religion, but we also wanna respect the practice of religion. So to share with our listeners, where is that tension resolved? How, how does the state protect your right to exercise your religion without being seen to be establishing that as a, as a religion,

Ilya Shapiro:

Basically where the court is going is that religion does not have to depart the public’s sphere as long as the government isn’t coercing people to, towards a particular religion or religion in general, as long as it’s not discriminating against people, whether that’s in terms of students in public schools or, or other contexts who, who don’t adopt a particular tenant then, you know, if you’re, if people are acting in their private capacity, then the, the government isn’t gonna stop that. And at the same time, when it has institutes programs, it can’t treat religious institutions differently than secular ones which is different than this was discussed in the Kennedy versus Bremerton case. The, the praying coach, the, the lemon test from a case called lemon versus Kurtzman 50 years ago, that talked about an entanglement of religion an entanglement of government with, with religion that effectively had been read to you know, negate any, any, any religiosity, any exercise in the public square justice Gorsuch in the Kennedy case said that that, that lemon had long ago been abandoned.

Ilya Shapiro:

And indeed it hadn’t been used by the court as a governing doctrine in a long, long time. All the juice had been squeezed outta the lemon. So now they were discarding Therin if you will. And conversely with the school choice case. So when Maine created this program of tuition assistance and said, parents could use it to send their kids to, to any, any school of their choice except religious ones. And the court said, look, you don’t have to have this kind of program, but if you do, you can’t treat religious schools differently than, than, than, than secular ones. So that’s, that’s where we are on the state of, of, of religion. And I think it’s tremendously overwrought to say as a lot of media commentators did, or as justice Sotomayor did in her dissent in, in Carson that this eviscerates, the division between the separation of church and state and the separation of church and state itself comes from a case in the early eighties called Everton and, or, sorry, an interpretation of a, of, of, of, of Everson’s line from, I think the, the forties or fifties, and is, it’s more complicated than simply saying, you know religion can’t enter the public sphere and the public sphere can’t enter religion.

Joe Selvaggi:

So we’re getting to the end of the show. We we would be Remis. We didn’t mention that we’re getting a a a change of just justices in the new term. We’re losing Breyer who is retiring and we’re getting the newly appointed Ketanji Brown Jackson as his replacement. I think they’re both regarded as again, we shorthand as liberal justices. How do you think her joining the court will change if at all how the courts will decide cases?

Ilya Shapiro:

I don’t know if I can, off the top of my head identify cases where she would vote differently than the justice she’s replacing, her former boss Steven Breyer for whom she clerked. So in terms of vote count, I don’t think things will be very different. You have different specializations, Breyer was famously an administrative law specialist. I’m not sure whether justice Jackson really carved out a niche for herself in terms of substantive areas of law and as Justice White used to say, every justice makes for a new court in terms of their internal dynamics. You know, how convincing will she be? How you know in terms of the social dynamics behind the scenes, which don’t necessarily affect Justices’ votes on major issues, but they can affect the way they interreact. And you know, the dynamic of the court more broadly, will, you know, turn off Chief Justice Roberts, and in effect marginally have him closer to his more conservative colleagues. I don’t know. I think in the short term, we’re not gonna see that much of a difference other than in oral argument, the absence of Justice Breyer’s kind of long meandering, multipart, hypotheticals, and those kinds of opinions that he was known for with kind of a pragmatic multifactor balancing tests.

Joe Selvaggi:

So it would be less about her judicial capabilities or her or her wisdom, but rather her salesmanship how she can influence others either to her position or not alienate others away from her position. That would be more influential than perhaps the how she decides a particular case.

Ilya Shapiro:

I think that’s probably right.

Joe Selvaggi:

All right. We’ve run outta time. I appreciate you being with us now, one last chance to plug your book before we go. I think it’s a must read for those who want to pretend to be constitutional scholars at cocktail parties. Where can our listeners get your brand new paperback book?

Ilya Shapiro:

Sure. I mean, you can go to Amazon of, of course, but you can also type in Supreme disorder.com and that’ll give you lots of options of where you can get it beyond Amazon independent book sellers and whatnot. And also there, you can download for free a 20 page statistical historical appendix of all Supreme court confirmation battles, as well as some lower court ones in the modern era. And in addition to my book, I have my new subs stack to plug. This is a digital platform, did bill newsletter it’s called Shapiro’s gavel, and there you can subscribe for free. I, I, I, I’ve committed to at least one post a week and I’ll have other stuff for paid subscribers. There’s gonna be additional goodies it’s you know, it’s reader supported as they say and you know, we’ll see where we’ll see where that takes us. It’s an interesting thing for thoughts and musings and analysis that I wouldn’t necessarily write up in the pages, the wall street journal or Newsweek, or, or the examiner.

Joe Selvaggi:

Perfect, perfect stuff for those of us who are Ilya, Shapiro groupies. So thanks for that plug. So we’re at the end of our time together, thank you for again, for joining me Ilya. It was great. I really do wish you luck at your new home at the Manhattan Institute.

Ilya Shapiro:

Thanks very much. I I’m you know, come back from vacation, tan, rested, and ready to be in the arena.

Joe Selvaggi:

This has been another episode of hub won a podcast of pioneer Institute. If you enjoy today’s episode, there are several ways to support the show and pioneer Institute. It would be easier for you and better for us. If you subscribe to hub wonk on your iTunes podcaster, you can now find hub won on YouTube at the pioneer Institute channel. If you wanna make it easier for others to find hub won, it would be great. If you offer us a five star rating or a favorable review, we’re always grateful. If you want to share hub won with friends. If you have ideas for me, or suggestions or comments about future episode topics, you’re welcome to email me. Hub won pioneer institute.org. Please join me next week for a new episode of hub.

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