rainbow_ridersThe faculty lounge reopens for a special summer session and there is plenty for professors Epstein and Yoo to talk about. First up, the gay marriage decision: Is this really what the Fourteenth Amendment means? Is Justice Kennedy’s florid decision an invitation for mischief? And how concerned should defenders of religious liberty be? Then, it’s on to Obamacare. Has Chief Justice Roberts gone over to the dark side? Why is that liberal justices never “grow” on the court? And what do the professors make of Ted Cruz’s proposal to reform the Supreme Court? Also on the docket: redistricting in Arizona and disparate impact in Texas. And finally: what underappreciated Americans do Epstein and Yoo want to see take their star turn on the Fourth of July (don’t worry — it turns into an opportunity to throw shade at 19th century presidents). All that and more in this week’s Law Talk!

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There are 15 comments.

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  1. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    I didn’t notice Professor Yoo’s right hand.  I just didn’t.

    • #1
  2. BuckeyeSam Member
    BuckeyeSam
    @BuckeyeSam

    Yee-haw!

    • #2
  3. Luke Thatcher
    Luke
    @Luke

    Yoo couldn’t be more wrong about leaving life time appointment in place… It’s not the success you make it out to be …

    • #3
  4. kylez Member
    kylez
    @kylez

    Basil Fawlty:I didn’t notice Professor Yoo’s right hand. I just didn’t.

    I was going to say he looks like he’s enjoying it a little too much.

    • #4
  5. Ricochet Member
    Ricochet
    @IdaClaire

    Thank you very much for this podcast.  Ever since the Supreme Court issued its rulings last week, I have been hitting  the refresh button for this podcast.  At last I have been amply rewarded for my rat like behavior.  And it did not dissapoint – it was both on point and elucidating. Thank you.

    • #5
  6. user_1083680 Member
    user_1083680
    @ArthurBeare

    What sort of editorial process do SCOTUS opinions go through?  I assume (correctly?) that those joining an opinion have some input to the wording.  But the Kennedy gay marriage opinions surely could have benefited from an editor.  Is anyone empowered to say things like “maybe we should tone this down a bit  (the irrational animus of the DOMA opinion)” , or “this sounds good but what might it mean? Could you be a a little clearer?”  or “This is too much purple prose for a legal opinion.”   Or (heaven help us) is what we see what is left after such internal criticisms/editing?

    I also assume these people talk to each other, so the views of the dissenters would be known to the writer of the majority opinion, and thus might be addressed (preemptively, as it were).  This s doesn’t seem to happen (at least not consistently).

    And while we’re at it, though we all love Scalia’s effective use of sarcasm, does it have any place in a legal opinion?  Presumably Harvard & Yale teach legal writing.  How would Scalia’s sarcasm be greeted in an academic environment?

    • #6
  7. Titus Techera Contributor
    Titus Techera
    @TitusTechera

    How would academics like Justice Scalia? Rendered breathless, no doubt. They stand for very different understanding of the law & that on one side, at least, understanding the laws requires the kind of attachment that issues in contempt for people who think cunning lawlessness is better than law-

    • #7
  8. user_3444 Coolidge
    user_3444
    @JosephStanko

    Professor Yoo said conservatives are overreacting, and that we should follow the example of the pro-life movement and the regulations it has successfully imposed on abortion at the state level.

    First of all I question whether the pro-life movement has been as successful as he seems to think.  Yes, we’ve moved the needle of public opinion somewhat, but the few legislative victories like banning partial birth abortion were more symbolic than substantial, as the affect only a tiny number of the million plus abortions per year.  The primary goal of the movement is to overturn Roe v. Wade and return power to the states to regulate (or outlaw) abortion, and so far this has failed — despite the fact that Republicans have nominated the majority of the justices on the Court.

    But even setting that aside, Roe created a complex framework of trimesters that permitted states some leeway to regulate abortion in the later stages.  Is there any sort of regulation or restriction a state could conceivably put on SSM that the courts would uphold?  I’d like to hear some specific proposals from Prof. Yoo, because to me the analogy makes no sense at all.

    • #8
  9. user_494971 Contributor
    user_494971
    @HankRhody

    I don’t believe, strictly speaking, that packing the courts is unconstitutional. The number of supreme court justices is set by the congress and has varied in the past.

    Question: assuming congress reduced the number of justices who decides who stays and who goes?

    • #9
  10. Titus Techera Contributor
    Titus Techera
    @TitusTechera

    I do not believe the Congress has the power to remove justices otherwise than by impeachment. Reducing the number would mean not replacing some number of justices who die or retire–of course, the legal forms & the popular support implied in the act of changing the number of justices might persuade some or all to retire-

    • #10
  11. user_494971 Contributor
    user_494971
    @HankRhody

    Well, I understand judicial impeachment to be a dead letter for the past two hundred years, but I have some suggestions…

    • #11
  12. Titus Techera Contributor
    Titus Techera
    @TitusTechera

    Wasn’t it used in the LBJ days? Well, it was threatened, so Justice Fortas unjusticed himself–or divested himself of justice–or however you like to put it. But yes, there is far more to be done!

    • #12
  13. user_3444 Coolidge
    user_3444
    @JosephStanko

    Hank Rhody: I don’t believe, strictly speaking, that packing the courts is unconstitutional. The number of supreme court justices is set by the congress and has varied in the past.

    Merely the threat of packing the court got FDR the result he wanted (the “switch in time that saved nine”).  I suspect that if enough conservatives merely threatened to try to pack the court and/or impeach a liberal justice next time we had the power to do so it might sway the direction of the Court — especially Chief Justice Roberts, whose overriding goal seems to be to protect the Court’s reputation and try to make it less politicized.

    On the podcast Prof. Yoo speculated that all the criticism and political attacks on the Court from the Obama administration and the liberal media have swayed Roberts’ votes on Obamacare and other cases.  If he starts to hear the conservative base crying out for Court packing schemes, defunding the Court, and so on, and a few GOP candidates like Cruz voicing support for these ideas, I think that alone could push him back in the other direction on future votes — but only if he takes this as a serious threat.

    • #13
  14. Titus Techera Contributor
    Titus Techera
    @TitusTechera

    Did not FDR get to appoint eight justices? SCOTUS really got the measure of American democracy & said, thank you, sir, may I have another?

    It’s not enough to threaten–conservatives need to become far better at coalition building. Winning an election & losing the next is just not enough-

    • #14
  15. John Yoo Contributor
    John Yoo
    @JohnYoo

    Some good points sent in from a lawyer on this episode:

    1. I think that Roberts’ softness and inconsistencies on these cases is largely due to his being Chief Justice. He honestly feels a responsibility for the preservation of the Court’s reputation, and its standing in the eyes of the public and the media. He does come through on many important cases (campaign finance, class actions, employment law), and then gives something back on the high-wire cases.

    2. I also think that  in the next term we will see at least one terrific opinion. If Abood is overruled (why else take the case, especially after the Justices edged up to overuling it last term?) that is more important politically than anything I can think of.  It would put a huge dent in the influence of public unions in the whole political campaign contribution game. It would be similar to the effect that Walker’s reforms had in Wisconsin, except even more so since it would apply to all public employees, including police etc., which was not the case in Wisconsin.

    3. With regard to the discussion of the adverse impact decision, Richard is right in that there are various hoops plaintiffs will still have to jump through to make their case, but there are hoops on both sides, and the almost universal response will be simply to fold and go along with the affirmative action push. Even though it was a housing case, I think the same thing will be true in Title 7, etc.  By the way, I think the repeat affirmative action case from Texas will end with the abolition of that crazy University of Texas program, but not affirmative action in general  But, can you believe that we are about halfway through the 25-year life expectancy that O’Connor gave to the whole affirmative action program?

    4.  I liked your brief conjecture in the ACA case (which was my initial thought when I saw it was 6-3)) that Roberts was worried about Kennedy going off the deep end with a 5-4 cockamamie federalism theory, and so gave himself up to the vagueness opinion to make it 6-3 on less objectionable grounds, which Kennedy was happy to go along with.

    • #15