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The Colin McEnroe Show
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Colin McEnroe  00:57

All right, so we are going to talk today about the US Supreme Court. We've done it before. We are going to talk about the nature of justice, I think, as it either surfaces or does not surface in the U S Supreme Court. A little bit later in the show, we'll talk about some specific decisions from the recently concluded term. But in some ways, there's one decision that looms above all the others, and here to talk about that and about the condition of the court generally, is Akhil Reed Amar, the Sterling Professor of Law and political science at Yale University, I should say, as a former member of the Yale faculty, an occasional member of the Yale faculty, Sterling professors have total immunity. They can do whatever they want. They can just go to your house and steal the chickens right out of your backyard, and there's nothing you can do about it. He's also the host of the podcast America's constitution, and author of the words that made us America's constitutional conversation, 1760, to 1840 so I'm assuming, first of all, welcome back to the show. And second of all, I'm assuming you really do want to start with this immunity decision. We can go from there to maybe the general condition of the court. But you know, I can just even though distance divides us, I can hear steam coming out of your ears right now as you re contemplate the immunity decision. Tell me why it looms so large for you.

Akhil Reed Amar  02:15

Because I think it's one of the worst decisions in all of American constitutional law. And thanks, by the way, for having me back. Is always great to be with you. And it's not about Trump. It's probably too late to have a prosecution in any event, and if he wins re election, as he may very well, the people who may be dancing a jig who are going to be immunized by this name Joe Biden and Bill Clinton and and Barack Obama. So it's not about Trump, it's about the court and the country and the Constitution, and what they've said in this opinion is astonishingly bad. It's just a complete betrayal of basic, basic constitutional principles, civic principles, about no man being above the law, about the rule of law, about what the Constitution really does say, honest to God, if you actually read it, about presidents and ex presidents. So it's just, it's just a big disappointment for those of us who actually are rooting for the court and for the country and for the Constitution. Oh, and it was partisan to boot.

Colin McEnroe  03:26

So yes, there were dreams of this kind of 333, split on the court. It doesn't seem to be working that way this term. But, you know, I sort of stepping aside or stepping away from the constitutional law aspect for just a second. And just, you know, as somebody just living in America, experiencing life in the U S, particularly a person of a certain age like me, I'm certainly old enough to remember Gerald Ford pardoning Richard Nixon. And contained in that pardon was the idea that if he didn't get pardoned, he would be subject to criminal prosecution, and that was undesirable. And you can take that all the way forward to the impeachments of Trump, where people like Mitch McConnell, as a way of, kind of exiting the idea of impeachment, would say stuff like, whoa, you can certainly be prosecuted through the criminal justice system, and it's like a shell game. When they're when you're trying to impeach them, you get told, Oh, no, so much better to do this as a criminal process in the U S courts, and when you're trying to prosecute them in US courts, you're told, No, no, that's what impeachment is for. It really does seem a kill like this is a a decision that had a specific outcome in mind, as opposed to just working through the thought process of it. But say a little bit more about what you see there that.

Akhil Reed Amar 04:53

I agree with you, where you know rough contemporaries, you and I, we remember that. Nixon tapes case and the Watergate scandal, and it was one of the glories of our system. So it's all about a free press, and you're part of that, and, and it's about Bob Woodward, who's one of my closer friends, and and I adore him, and I dedicated a book to him, and he rose to the occasion. And it's about our the other branches of government. And there were Republicans in Congress who were willing to hold to account a Republican president, people like Lowell Weicker and Howard Baker and at the end of the and Fred Thompson at the end of the day, actually, Mr. Republican himself, Barry Goldwater. But it was also about a great lesson from the judiciary, people who actually were appointed by Richard Nixon himself ruling against him. Four appointees on the Burger Court where Nixon appointees, including Warren Burger himself and three of them voted against him. It was a unanimous decision. It wasn't partisan, but Harry Blackmun and Warren Burger, who wrote the opinion and Lewis Powell, all ruled against him and another justice whom he put on the court, William Rehnquist, then an Associate Justice recused himself. Yeah, they did that back then. And what they said is, if evidence even from the Oval Office proves that the guy is a crook, it's admissible in court. And I, as a kid in high school, am inspired by all of this about the rule of law and our justice system. And now let's just take this current one, because, again, it's not about Trump. I don't care actually about that. I care about what I'm going to need to teach my students going forward, about our system. So it wasn't unanimous. We talked about that, okay? Whereas the Nixon tapes case was and not only wasn't unanimous, it was very partisan. And in fact, here are two sentences from a footnote deep within the majority opinion. And my head almost exploded, what the prosecutor This is footnote three of the majority opinion. Here's footnote three. What the prosecutor may not do, however, is admit testimony or private records of the President or his advisors, probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President's motivations for his official actions and the second guess their propriety, and then thinking, Yes, that's exactly what the Nixon, in fact, did on its facts. Oh, my God. And the reason Colin, that I and so many people actually look up to the court, or at least did two weeks ago, is this was a court that, in Watergate, was the embodiment of the rule of law. And again, I think the press shown Congress actually did this job pretty well, and it wasn't partisan. And so so now you see why I'm disheartened, not because of Trump, as opposed to Biden. As I said, it's not about that. It's about our deepest constitutional principles and values that were not well served by this decision, which I really think is disgraceful and one of the worst opinions of all time.

Colin McEnroe  08:27

Yeah, and you know, you've, you've mentioned one of the two things that really jumped out at me at first blush, first time through, and that is that idea of motive not being a consideration, not even being an introducible consideration, which seems to just fly in the face of the way the law works. And I thought in your Atlantic piece, you laid it out very neatly that, for example, in bribery cases, we use the term quid pro quo. So I give you 25 chickens. You give me an A in your course. So the chickens are the quid, and my a plus or a that I got it from you is the quo, but the Pro is also very important. It's the third leg of bribery. Why are you giving me an A? Because I gave you chickens, and the way that Roberts has structured it, it seems like it would be impossible to consider that that pro about about a president, just so my friend, tit for tat, this for that quid pro quo with something for something else.

Akhil Reed Amar 09:29

And that, because you could imagine, of course, a president hardening for utterly non corrupt reasons. And that's his job, and that is, by the way, Gerald Ford hardening. Richard Nixon, people thought at the time the fix was in. Bob Woodward thought at the time the fix is and he's told me this story himself. On several occasions, our audience can find it actually on various YouTube clips. That's what Bob Woodward thought when Ford initially pardoned Nixon. It was corrupt. It actually wasn't. You might think it was a mistake, but Gerald Ford did it for good government reasons. He wanted the country to move forward. He didn't want us to just sort of wallow in Watergate and and so motive matters, and that's just not a keel thinking that let's go back home, because we've talked about in our lifetime how important that Nixon example was. But let's talk about the Constitution itself. Colin, it uses the word bribery centrally. It actually uses that as one of two central examples of what a president can be impeached for treason, bribery or other high crimes and misdemeanors. And bribery is all about this motivation. And of course, you can be impeached by the house, tried by the Senate, convicted by the Senate, punished by the Senate, removed from office by the Senate, disqualified from future office holding if the Senate so desires, by the Senate. And then the Constitution explicitly says, explicitly, after impeachment and removal, your subject as an ex president to ordinary criminal prosecution. This is the core case in the Constitution itself. So it's not just that you and I are talking about what happened when we what happened when we were kids in the 1970s with Gerald Ford and Richard Nixon and Bob Woodward and a virtuous Supreme Court in the Nixon tapes case. It's what the Constitution was all about. This is originalism. George Washington never, ever said that he was immune after his presidency, no early president ever said that, no Federalist Paper ever said that, no founder ever said that they sold the Constitution. They being the framers, the supporters the constitution to the country, saying that there are no kingly privileges of this sort, that you're forever immune and audience members. If you want to just confirm that, read the last paragraphs of the Federalist numbers 69 and 77 these are newspaper op eds. They're very short. They're 85 in all. We call them the Federalist Papers. You can read for yourself. But Alexander Hamilton wrote selling the constitution to the American people, saying he's not a king. He's going to be subject to the law, just like everyone else, especially when he's out of office, when he's in office, you know, he shouldn't likely be interfered with, because we elected him to do a job, but if he misbehaves, especially if he's thrown out in an impeachment proceeding because of his own misconduct, his own bribery. Yes, of course he's going to be accountable. That's what the American people actually were told. They ratified the Constitution on that basis. So, you know, you don't have to believe in the audience. Read the text of the Constitution itself. You can do a Control F of the word bribery. It'll just pop right up there and read the last two paragraphs of Federalist, 6919 77 and finally, if you read the opinion, they quote, I can't prove the negative. They quote not a single frame or founder who said anything like what they're saying. They just made it all up. And these are people who claim to be a regionalist, and I do too. I believe in following the Constitution. It's what I've devoted my life to. And I've been on previous episodes with you, Colin, when we've actually talked about, you know, taking the Constitution seriously.

Colin McEnroe  13:32

All right, I want to talk about the other thing that jumped out at me the first time through, and it's something that you've also commented on, and that is this, and I'll try to give an example. So imagine, since we don't care about Trump right now, but imagine that I am an evil president in maybe in the series 24 and Jack Bauer has not been able to thwart my ambitions, and I do appear to have lost reelection, and I'm an evil president, and I see to my vice president, Chris Murphy, who I've decided to bring along for the ride. I want you to go in there, and I want you to do anything you can to stop the certification process of that vote. I am not leaving office. You're my vice president. You have to participate in this. This is what I picked you for in the first place. So get your butt in there, Murphy and see what you can do. See, you got to stop this somehow. And I've got some other electors that we can substitute for these, you know, these legally chosen electors and all this stuff. And so this, I think the court understands there's sort of three buckets in the Roberts thing. There's your official duties, and then there's this kind of outer perimeter of your official duties, and then there's your private stuff. And so they look at this thing that I just did with Chris Murphy as part of the outer perimeter. It's not a normal day at the office, but I have presumptive immunity. I The evil president. Have presumptive immunity. Some prosecutors gonna have to prove that I don't have immunity when I'm telling Chris Murphy to do that. But so that's interesting all by itself. But let's say that I win. I. In that argument, I do have immunity. My presumptive immunity stands. Nobody's able to knock it down. But imagine that I'm also facing prosecution for other evil deeds that represent private actions. Roberts says you can't introduce the fact that I did that with Chris Murphy in these other prosecutions, prosecuted on other charges that were my private behavior. We have to pretend I never did that. If I understand the Roberts decision, it just can't be brought up in connection with things that I can be prosecuted for. I just find that kind of mind boggling as well, but I'd love your thoughts, and then I'm amazed and impressed that you're zeroing in on just the same thing that five of us, you know, law geeks have zeroed in on

Akhil Reed Amar 15:38

Colin, it's the same two sentences that I read from footnote three that those are actually key sentences. And you know about how you can't examine motive, and if you're a law and order freak, you know, fan boy as I am, I think I've seen every episode, and, oh, I've met Sam Waterston and so, but in a law and order, this would be called Mola no and same MO, can you introduce evidence that you kind of done this kind of thing before, in in, you know, in other situations? So you've zeroed in and I, honestly, I have several critiques. The big one that I've mentioned is they didn't take the Constitution seriously. The Constitution says something the exact opposite of what they're saying, and that's the bribery example. And second and independent critique is what they said, even if you're trying to make up a constitution and draft it is kind of incoherent, and it doesn't quite make sense. And, you know, how can you have bribery prosecutions without talking about what you're bribing it for? So the whole framework actually collapses, but you're focusing on one of the issues, which is, you know, what's your core function versus what's in the outer perimeter of your function? And on that, I actually don't think that's particularly incoherent. I think you're going to need some sort of framework like that. But I do think the following, there's some things that are expressly in the Constitution, present vetoes, present pardons. President makes appointments, President receives ambassadors, okay? And I'm saying even for those four functions that are in the document, if you do them corruptly for a bribe, you can be impeached, criminally, prosecuted, and they just don't take that seriously. Now I'm saying I agree with them. There are other things they're not explicitly mentioned, but they might be in the outer perimeter of what you're doing. And I think Presidents talking to Vice Presidents is an important part of the job, even if it's not expressly mentioned, but, but, but if it's done corruptly, if it's part of a criminal conspiracy of a certain sort, yes, it's impeachable and it's prosecutable after you're out of office, just as if you have a burden that's corrupt.

Colin McEnroe  17:58

So you know, this is kind of a sui generis decision in some ways, but it takes place within a larger context. There are other decisions made this term, but also at the beginning of the term, we're confronted with more information about Justice Clarence Thomas, about his wife, Ginni Thomas. There's even a report that goes back quite a few years about Ginni Thomas being involved in a PAC that I think she she conceived of with Leonard Leo, who comes up in all of these stories, and maybe got some money from Harlan crow to fight the Citizens United case, to seek a certain outcome in Citizens United. But then all this stuff that Thomas has gotten, and then we've been through all the craziness of justice and Mrs. Alito and their flags, and she likes to fly these flags, and he can't do anything about it. And I guess you know, I know enough of you and your work to know that you really do believe in our system, and you really do believe in what it can be when it functions appropriately. But it's not right now, and I'm wondering, this isn't really a professor question, it's more of a citizen question. But I'm wondering, you know, should, should Democratic candidates run against the Supreme Court, as it currently functions, as part of a 2024, political campaign? Is it appropriate, and maybe even necessary, to put the Supreme Court's current behavior on the table as a political issue that you want people to vote on,it's perfectly permissible to do that.

Akhil Reed Amar  19:25

And some of the people are doing that are actually friends of mine, Sheldon Whitehouse and I went to college together, for example. And note his last name is, yes, it is White House and not making that up from Rhode Island. So they are doing that, and they're permitted to do that, and that they're in a great tradition. Abraham Lincoln becomes president. This is the book I'm just writing right now, running against Dred Scott and the Dred Scott court, and they made it up in Dred Scott and he's allowed to do all of that. That said I'd. Want them to pick their targets carefully for two reasons, or maybe more. I want them to be fair to the court. And my own view is that some of the criticism actually hasn't been fair, and if our audience is interested, I actually defend the alitos in flaggate. You can listen to episodes, and I know them both well, and I know there are some I do not believe these people are corrupt. I don't and I know them pretty well. They're not on the take. Okay? I think they made a whopping mistake. And one of the reasons I think they made a whopping mistake is everything is so darn partisan that even when they're coming up with reasonable decisions, they get, you know, attacked, and then they stop listening to critics. Sonia Sotomayor made great points in her dissent. So did you brown Jackson, but because, actually, unfortunately, my side, I'm Team Blue, I'm a Democrat, has sometimes turned up the volume a little too much, even in you know, cases where it shouldn't be turned up, that can have costs and consequences that they're not hearing us. So here's what I am saying. I actually don't think Citizens United was a disgrace. I actually think it was rightly decided we can you can talk about that in another episode. I don't think that justices have to recuse just because they have politically active spouses. Welcome to the modern world. I actually defend your rights to fly your flag and and it wasn't, I believe, uniquely associated with sedition or insurrection if you're a military person flying a flag upside down. And she grew up in a military family as an SOS sign for hundreds of years. It's what they teach when the Boy Scouts. So so I'll defend them on a whole bunch of things, but what I am saying is I think they made a whopping mistake and a huge mistake, and as their friend, I'm coming on this episode and doing other things to tell them, Listen, I wish you well, try to rethink this. And, and, and then we have to figure out, what should the remedy be? Oh, I think the court should reverse itself, and it has, in some decisions in the past. They They, in the early 1940s said, Oh, government can make it a crime for religious kids to refuse to salute the American flag, make it a crime, or, you know, punish them. And then the courts actually, in this case called gobita said, oops, we made a mistake. Actually, there really is a First Amendment, and it means something, and it means that if you're a religious person, or you have political philosophical views, we can't force you to salute a flag that you don't believe in. We can't force you to do that. They reverse themselves when you know who the guy was who wrote that opinion, Robert Jackson, two years later, in an epic case called West Virginia versus Barnett, he said we made a mistake. Several of the justices who had ruled one way in the earlier case change their mind. That's a profile in judicial character and judicial courage. Oh, I hope John Roberts, who descends from William Rehnquist, who descends from Robert Jackson, takes a good hard look at what Robert Jackson did in the West Virginia Barnett versus Barnett case, which is one of the great cases in our constitutional tradition.

Colin McEnroe  23:22

All right, so we have to stop there. Hopefully the Republican majority justices are listening to this show right now. Of course, they tune in. No, they don't, you know who listens to Sam waterston's cows? They the cows want to listen to it every day out on his farm out there in the Western ºÚÁϳԹÏÍø. So they're listening anyway. Maybe they'll tell the justices. Kiel Reed Amar is the Sterling Professor of Law and political science at Yale University, host of the podcast America's constitution, and author of the words that made us America's constitutional conversation, 1760 to 1840 thanks for coming back. We got to have a longer conversation, because we we barely scratched the surface here, so let's do that sometime.

Akhil Reed Amar  24:00

Thank you. Okay, love it.

Colin McEnroe  24:02

Okay, we're gonna take a little break right now. We will come back. We're gonna look at two more cases from the past term. We have powers that are positively legal only we can take the Lord make it lead.

Colin McEnroe  25:20

So we are back, we are going to talk about another of the cases that made law, I guess, or history or something, but maybe not since during the Supreme Court term that just concluded. Joining us now to do that is Christina Rodriguez, Professor of Law at Yale Law School. We're gonna talk about a case called Loper bright enterprises versus Raimondo. We're gonna mention a concept you may have heard from time to time, often referred to as Chevron deference. But first of all, Christina Rodriguez, welcome to our show.

Cristina Rodríguez 26:05

Thanks so much for having me.

Colin McEnroe  26:07

So let's talk about the case. First, I sometimes wonder whether this case is an example of maybe a bad regulation, making a bad case, resulting in bad law. This is National Marine Fisheries Service. They had a rule that they wanted to put monitors on boats, but the fishing, the commercial fishing industry, had to pay for the monitor. 710 $710 a day for an at sea monitoring program. As I understand it, sometimes these boats would be at sea for many days, and you would be paying for the presence of the monitor. That's the thing that they protested. But the basis on which they protested, as I understand it, and you're gonna explain the whole thing to us, is, is a little broader than whether or not that's fair to do to fishing boats. So, so what became the issue in this case?

Cristina Rodríguez 26:56

So I think you're right that this case was a little bit of a self owned by the government, but I think the overruling of Chevron has been a long time coming, so eventually a case that was going to make it to the court that would allow it to overrule this doctrine. So the doctrine comes from a 1984 Supreme Court decision that involved a plan by the Reagan era Environmental Protection Agency to control emissions from stationary plants, and the Clean Air Act did not specifically authorize the novel approach they decided to take. Now remember that agencies get their authority to act from Congress, so their regulations have to have a basis in the statute. But in Chevron, the Supreme Court said that because that statute, the Clean Air Act was ambiguous with respect to whether they could regulate in this way, it would defer to the agency's interpretation as long as it was reasonable. And that became the chevron doctrine, that when statutes are ambiguous, courts assume Congress intended the agency to resolve the ambiguity, and court should just make sure the agency approach is reasonable. Now the Supreme Court has been ignoring, critiquing, sidestepping Chevron for some time now, even as the lower courts have been applying it faithfully so Loper bright which expressly overrules the doctrine is predictable, but it's still quite dramatic because of the way in which it erases the doctrine from the U S reports and therefore From the way courts decide cases?

Colin McEnroe  28:22

I think Justice Roberts may have even said something to that effect from the bench during oral arguments that, you know, I mean, Chevron has kind of been dead to us for a while. We've been ruling all kinds of stuff without really paying too much attention to it, but once again, to help people make it more concrete in their minds. So, yeah, there's a lot of these things are a little bit vague. So let's imagine that a company called Penelope pharmaceuticals, whose CEO is an evil cat, but that's another story, develops a new Parkinson's drug. So the Food and Drug Administration can approve the drug for sale only if, quote, adequate and well controlled investigations, unquote offer, quote, substantial evidence, unquote of the drug's effectiveness. Well, somebody has to decide what's adequate and well controlled what's substantial evidence. There has to be a little bit more finely green understanding what that language means. And so that devolves, typically, to the regulators who think about this stuff all day long. And I don't know, maybe you could say a little bit more about that and how it plays out as a legal question.

Cristina Rodríguez 29:24

You're right. Statutes are often open ended. Congress legislates in broad terms. A statute might say, regulate hazards in the workplace or ensure that the air or the food supply or a new drug is healthy or safe. And part of the reason Congress legislates that way is because they have a lot on their plate, and they want to delegate to expert agencies to fill in the details or determine what's required in order to achieve those objectives, and that's where statutory interpretation comes in. But what the court has basically said here, along with some of its other doctrinal decisions, is. That Congress, if it's not specific, is really leaving it to the courts to decide whether what the agency has done fits within the terms of the statute. So the overruling of Chevron shifts the decision making authority about how to implement ambiguous terms from agencies to courts, and this is a particularly important shift, because a lot of the statutes that agencies regulate under are old. The Clean Air Act is about 54 years old. The Occupational Safety and Health Act is also from the 1970s and Congress doesn't get around to updating statutes to address new problems. So the role that agencies play is following the way circumstances change, the way technology changes, and adapting these old statutes to new problems. The court has now made that much more difficult for agencies to do right.

Colin McEnroe  30:49

We should also say, I believe there was another decision this term that kind of upset the idea of a kind of statute of limitations on some regulations, so that now, if I started a company tomorrow and was affected by federal regulations, I would have six years to fight that regulation, to challenge that regulation, even if the regulation itself was 30 or 40 years old. So there's been a destabilization of this thing across several different cases.

Cristina Rodríguez 31:18

And one concern people have is that this decision is going to lead to an effort to undo regulations that have been upheld under the chevron doctrine, which was in place for 40 years. And so I think we're about to see a lot of instability and industry led litigation against agency rules.

Colin McEnroe  31:35

Yeah, are we also going to see the courts being swamped? It seemed like, seems like a lot of things wind up in court that maybe didn't used to

Cristina Rodríguez 31:42

I do think the courts will hear more of these cases. I think they'll largely find ways of dealing with it. And I do think that you might see two different results. You might see some courts continue to effectively defer to agencies and to say what the agency has done here makes sense of the statute to us. They're the experts. This is a persuasive interpretation of the statute, and the court's decision a little bit right leaves that possibility open, that if what the agency has done is persuasive, a court can say, well, yes, this is the best reading of the statute, or a reading of the statute that is consistent with what Congress wanted. But then you might also find a number of courts saying, well, we disagree effectively with the way the courts or the agency has used statutory authority and an increasingly partisan environment where you have courts with strong policy differences with the administration in charge, you might see courts that disagree on policy grounds saying, actually what the agency has done is just not authorized by the statute, we have a better interpretation, and there's no reason for us to defer or accept their expertise as informing what the statute means. And so I think you're likely to see cases of both kinds emerging out of the Chevron's overruling.

Colin McEnroe  32:57

So let me talk about two things that were said in oral arguments, and they're a little bit in conflict, and they're kind of interesting. So Paul Clement, who is one of the lawyers for the fishing industry, made the argument that Congress often passes big laws, because if the law spelled out the administrative burden in detail, it wouldn't attract enough yes votes to pass. Meanwhile, Justice Kagan gave an interesting hypothetical. She brought up AI, and she said, you know, Congress is going to start making some laws about a very fast moving issue. Do we want to have to go to court or back to Congress for an amended statute every time a new mole pops up out of the a high AI Whack a Mole court. This isn't that's not her language. But so these are two interesting points, like Congress maybe, maybe you could write statutes a little bit more tightly, so that they're less open to interpretation by agencies. That's what one of the advocates for the plaintiff is saying, and Kagan is saying, you can't do it, because some of this stuff just changes really fast.

Cristina Rodríguez 33:52

Both of those things are true. I have heard agency officials who have been involved in drafting statutory language say the ambiguity is the point. We have ambiguous language because the coalition can agree on how to address an issue, so we're going to leave it to the agency. And I think that is not atypical. At the same time, Justice Kagan couldn't be more right that when Congress legislates, it cannot predict every instance in which regulation might be necessary or what regulations might make sense. And so it's absolutely critical for Congress to be able to write open ended statutes and then to call upon agencies to interpret those open ended statutes to address the underlying problem Congress is trying to regulate. And if you ask Congress to do otherwise, then basically you're shutting Congress down because it can't legislate anew every time the technology changes, and we realize that the original framework is not quite right or not quite adapted to circumstances of the moment. And so that flexibility which Chevron permitted is absolutely essential in in my view, I'm thinking of justice. And many others to effective government. And the attack on Chevron, I think, is also not not just an attack on the courts giving up their power, but it's also an attack on regulation itself, because to ask for Congress to be more specific and to demand that legislate anew is really just a way of calling on Congress to regulate less. So

Colin McEnroe  35:26

this may be me grasping desperately for a silver lining here, but you know, Professor Amar talked in the first segment about how you know the immunity decision ultimately will make it very hard for a putative President Trump to prosecute ex President Biden justice. Kavanaugh made a kind of similar argument, not exactly this argument in orals, but, but I think you could look at it this way. So imagine that, in fact, God help us, Donald Trump does get reelected, and we know from Project 2025, he's going to do, probably do all kinds of things that amount to deregulation or crazy just amounts of curtailing government's ability to to, in turn, curtail bad things. Conceivably, this decision allows plaintiffs to go in and kind of sue for the opposite of what this case did, in other words, saying, Oh no, no, you've got to regulate this stuff. You can't do what you're doing right now that's not even really consistent with what the law says. In other words, I'm just wondering whether this opens up in those kinds of very trying circumstances, some remedy remedies that might be more palatable to us.

Cristina Rodríguez 36:34

It is certainly possible that this will enable courts to thwart conservative agenda items as much as progressive or liberal agenda items. And it's it's useful to remember that the chevron doctrine emerged during the Reagan years and was initially supported by conservatives. Justice Scalia was one of its great champions on the court, and it was for the reason that you're suggesting is that it allowed for agencies to have some flexibility. So the reverse also has two valences. I think though, that ultimately it's much harder to through litigation, target the failure to regulate than it is to target regulation, and because regulation is more likely to be a tool of Democratic administrations, and deregulatory efforts that might be implemented by the likes of a Trump administration are harder to get at through litigation, that the consequences of Chevron being overruled are going to be skewed, Which is not to say that if the next Trump administration tries to play fast and loose with the Immigration and Nationality Act, to adopt some of its immigration plans, that it's not useful to the courts that might want to push back on that, or people litigants who might want to push back on that to be able to say you can't defer to their interpretation of that statute anymore. You have to give it your own independent judgment, and that judgment should lead you to see that what they're doing is opportunistic and exploiting language that was not really meant to accomplish whatever it is they're seeking to accomplish. So it could be useful in that sense.

Colin McEnroe  38:18

All right. Christina Rodriguez,there's so many other things I wanted to talk to you about we really needed two and a half hours for the half hours for the show, but we're out of time for this segment. Christina Rodriguez, Professor of Law at Yale Law School, thanks so much for your time. We're gonna take a quick break. We're gonna come back and ponder the question of whether bribery is now illegal, even at all ever

Colin McEnroe  39:03

Because we got a lot more to get through here and very little time. But thanks to the Jedi Master, Gene Amatruda, he is our technical producer today. The producer of this episode is McCusker, the wonder kid, and her evil cat, Penelope. We're going to talk about corruption now, and we're going to talk about, actually, a series of Supreme Court decisions, but in particular, one that just particular one that just happened during this last term. We're going to speak with Ian MacDougall, a writer and lawyer by training who's clerked for federal judges in Brooklyn and Washington, DC, and has written about this for the Atlantic. The court can't think straight when it comes to corruption. Was that article. Ian MacDougall:, welcome to our show. Thank

Ian MacDougall 39:40

Thank you for having me

Colin McEnroe  39:42

Our story begins in a place called Portage, Indiana, where the Mayor Jim Snyder, steered, if that's an appropriate word, a government contract for garbage trucks to a certain dealership, which later gave him $13,000 supposedly for consulting work he was trying. Convicted on corruption charges in 2021 The case went to the Supreme Court, which threw the charge out. Maybe you could say a little bit more about this, and in particular, what Justice Kavanaugh had to say about it.

Ian MacDougall 40:12

Certainly so the question that the mayor Snyder had raised was essentially whether the federal law under which he was convicted, whether it essentially it criminalizes. Certainly bribery. Everyone agrees in the case of state and local officials, but bribery has to be basically, either you get the money advanced before you do the official act that you got the money for or that there's an agreement in place. The issue here was the prosecutors. There was no the money came afterwards, and I guess, couldn't prove an agreement. So it was whether what the law calls gratuities, but really gifts or a reward, sort of after the fact, whether this, this particular law covered that the sort of the sort of most natural reading of the law. And then lots of courts had ruled this way. Would say, yes, it applies to gifts as well. Justice Kavanaugh is majority, which sided with the mayor, was a fairly portrait reading of the statute, I would say, and concluded that, no, it only covers, only covers bribes. So you know, giving your giving your legislator a tip after they pass a law for you is, is fine under his reading of the statute, right?

Colin McEnroe  41:28

And he brings up things like end of the year gift basket to a kid's teacher or, you know, $100 Thank you don't Dunkin Donuts card to a garbage collector or something. And Kenji brown Jackson, Justice Jackson, the dissent was is fairly blistering, and points out that the statute explicitly focuses on transactions involving items valued at $5,000 or more. And Justice ketanji Brown Jackson notes pretty clearly quote, suffice to prevent prosecution of the gift cards, burrito bowls and stick dinners that derailed today's decision. Kavanaugh had mentioned that kind of stuff, and she goes on to refer to the absurd and a textual reading of the statute. And then she says it's only, it's one only today's court could love maybe, if we have time, we could maybe get back to that. We're a little stressed for time here, pressed for time, but, but she is really kind of coming down hard on Kavanaugh, and I've heard a number of people say this isn't really his typical work. He didn't even seem to have his heart in the writing of this majority opinion.

Ian MacDougall 42:37

No, it was an unusual he's, in my experience, reading his opinions, especially, you know, when he was on the Court of Appeals. But yeah, he was a fairly sharp reader of statutes, interpreter of statutes. And yeah, I think she's sort of holding him account in two respects. One is the, you know, conservatives have really pushed this idea of textualism, sort of strict adherence to what the text of the law says, and his reading of it kind of doesn't barely touches us in the text, and kind of goes in all these other directions. And the second element, I think, is, and this was what I focused on in that piece for The Atlantic, was in a lot of these cases, this is the fifth, I think, or sixth, depending on how you count it, in the string of cases where the Roberts Court has chipped away at criminal corruption laws. They tend to love these sort of wild hypos that make it seem like, you know, like the sort of corrupt politician and the guy paying him are just, you know, a voter asking, you know, for help with some minor issue, and the politician doing constituent services, and I've seen those in past cases, this one was, was like those times a million. It was just, it seemed like every at every turn, Justice Kavanaugh wanted to talk about the sort of examples you gave the $100 Dunkin Donuts, gifts card to garbage collectors, NBA tickets to car. He was really into garbage collectors. A lot of garbage collector hypos in there. You know, the teacher prosecuted for accepting an apple from a student. Essentially, you know, things that don't happen in the real world. And tellingly, both the majority of the court and and the fairly high powered legal team the mayor had on his side could find no actual cases that looked like this. So sort of this, you know, this technique of trying to say, Oh, it's just you're gonna have these, you know, overzealous prosecutors going after the little guy, and we can't have that. So therefore, when, when the sort of, the real corruption happens, we have to say, No, that's, you know, that's, that's got to be okay, lest the teacher get prosecuted. And that, I think that was the sort of, the second thing that Justice Jackson was really hammering out there.

Colin McEnroe  44:38

You mentioned those five other cases. These include Bob, excuse me, Bob McDonald, the Virginia governor, and one involving a Cuomo aide who took 35,000 not all of these cases. There's six, three, right? Some of them are like eight, one and stuff. It is not just the conservative majority here that is having some questions about about corruption and how far. Go in prosecuting it.

Ian MacDougall 45:01

Yeah, that's right, this. I mean, this was the first of the case. I think that was, there had been some sort of, yeah, occurrences and things, but the first where there was a real dissent, all the others had been essentially unanimous on this opinion. And I think part of it is, there's been some interesting scholarly writing about this is, you know, the justices come up in a world of, you know, politics, even if you know they're not politicians as such, but, you know, they and they occupy a world of, you know, K Street lobbyists and, you know, white shoe law firm partners. And, you know, I think there's fair reason to believe there's, there's some sympathy for the kind of transactional form of politics that that that they see as sort of just the way politics is done. And it's interesting because there have been dissents in the other kind of corruption cases, the Citizens United campaign finance, but that's more of an abstract question. I think when there's a real person at the center of it, for even the liberal justices, they tend to feel some sympathy for them. And I think part of where you see that is in these hypotheticals, even though they're talking about, you know, the homeowner giving a gift card to a garbage collector, inviting they seem to also like the voter, inviting the politician, or voter group fighting the politician, to a baseball game or something like that. It does happen, but that's done by the white shoe law firm partners and K Street lobbyists, not just sort of ordinary voter. So they sort of give away the game a little bit in the hypotheticals they choose in these cases.

Colin McEnroe  46:21

I got a little bit more than 90 seconds left, so this is not entirely fair what I'm going to do, but I'm wondering about that little phrase that Jackson uses at the end decision only one, only that today's court could love. Now, obviously this could be a reference to the fact that there's been an awful lot of scrutiny to the Supreme Court Justice themselves, accepting hundreds of gifts together worth over $6.6 million over the last two decades. Most of that is Clarence Thomas, $5.9 million that is Clarence Thomas. But still, I'm wondering if she's making a little dig about that or just the ideological tilt of the court. I don't know. What do you see in that phrase?

Ian MacDougall 47:01

I'm not sure. Yeah, some people have read this sort of justice, Thomas, Justice Alito, those kind of high profile stories, into that which seems reasonable. It's a little hard to tell. But you know, one thing that to me is striking is that you know all of them, and justice Jackson's only been on the court for a little while, so I don't necessarily know this is true of her, but, but it's quite common. They all go on these sort of junkets to teach at law schools in the summer and give speeches at law schools. And, you know, they get all kinds of gifts along the way. The difference between, you know, Justice Alito and Justice Thomas and the others is the others have mostly declared them on their disclosure forms. But, you know, i That's why, you know, I think it's possible just taking a dig at them, but the kind of culture of gifts to public servants, I think, hits closer to home than even some of the other corruption cases that they've had. Well,

Colin McEnroe  47:52

I'm going to suggest that those of us who are concerned about the state of democracy, we should all send $100 gift cards to Dunkin Donuts to judge justice. Ketanji Brown Jackson. She should never have to pay coffee and pay for coffee in the coming year,

see if they show up on our disclosure form.

Ian MacDougall 48:05

Absolutely. Let's do it, make it a nationwide movement.

Colin McEnroe  48:07

Well, listen. Thanks very much for being with us today and for the fine work you did the article. If you want to read much more, is the court can't think straight when it comes to corruption. By our guest, Ian McDougal, in the Atlantic, and to all the rest of you. Thank you very much for listening today. Thanks to Gene Amatruda and McCusker, the wondered kid and her Bad Cat, Penelope.