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2023 National Lawyers Convention

Originalism on the Ground

November 9 — 11, 2023


All tickets are now sold out.

November 9 – 11, 2023

The 2023 National Lawyers Convention took place Thursday, November 9 through Saturday, November 11 at the Mayflower Hotel in Washington, DC. Over three days, the Convention featured four Showcase Sessions discussing the Convention Theme of "Originalism on the Ground", eighteen breakout sessions sponsored by the Practice Groups, the Fifteenth Annual Rosenkranz Debate, the Twenty-Second Annual Barbara K. Olson Memorial Lecture, and the 2023 Antonin Scalia Memorial Dinner.

FeesLodgingCLE Information


2023 Antonin Scalia Memorial Dinner

NEW LOCATION!
The Washington Hilton
1919 Connecticut Ave NW
Thursday, November 9, 2023
Reception - 6:00 p.m.
Dinner - 7:00 p.m.
(ticketed event) BLACK TIE OPTIONAL
SOLD OUT!


Twenty-Second Annual Barbara K. Olson Memorial Lecture

Featuring

Bari Weiss, Founder & Editor, The Free Press

The Mayflower Hotel 
1127 Connecticut Avenue NW
Friday, November 10, 2023
5:00 p.m.
(ticketed event)
SOLD OUT!


Fifteenth Annual Rosenkranz Debate

The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 11, 2023
12:30 p.m.
SOLD OUT!


Annual Hon. Robert H. Bork Memorial Lecture

The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 11, 2023
4:30 p.m.
SOLD OUT!


Showcase Sessions Discussing the Convention Theme:

"Originalism on the Ground"

  • Originalism on the Ground: Roundtable
  • Whither Precedent?
  • Originalism on the Ground: Panel
  • How Originalist Is the Supreme Court?

Practice Group and Special Sessions

  • Do States Enjoy a Special Solicitude?
  • Hyperextension? Federal Financial Agencies & Cryptocurrency Regulation
  • A Creature of Statute: American Antitrust Law
  • Defend the Constitution, Save the Planet: The Role of Public Interest Groups in Shaping Environmental Law
  • Originalist Perspectives on Ethics and the Supreme Court
  • The Judiciary's Federalist Revival
  • After Dobbs and Samia: The Potential Implications of Applying a Dobbs Lens to the Supreme
  • Religious Liberty in the Work-and-Market-place
  • SFFA and Beyond
  • The Administrative State, Its Supporters and Its Discontents 
  • Originalism and the Communications Act of 1934
  • Fair Elections in an Era of Partisanship
  • FISA Section 702 Revisited: Originalist Interpretations and Constitutional Constraints
  • The Injunction Function: Is IP Law Promoting Markets for Innovators and Creators? 
  • Nightmare on Half Street? Free Speech and the NLRB
  • The Future of DEI in Business
  • Second Amendment: Will the Supreme Court Adhere to Bruen (and Originalism) in Rahimi and Beyond?
  • Mere Natural Law

 


Lodging

The Mayflower Hotel is sold out of rooms at the Federalist Society's contracted rate. There may be hotel rooms available at the Mayflower at a higher rate; please check directly with the Mayflower at 202-347-3000.

Other nearby hotels that currently have availability are:

Washington Hilton (location of Annual Dinner on Thursday, 11/9)

 

  


 

Convention Fees

The 2023 National Lawyers Convention is now sold out. 

Individual Day** 
Non-MemberSOLD OUT
Active Member SOLD OUT
Student Non-Member SOLD OUT
Student Active Member                                                SOLD OUT


**Individual day purchase includes that day’s sessions, CLE, and lunch.  It does not include social events. CLE materials will be available electronically. A hardcopy of materials can be provided upon request after the Convention, make sure to request CLE Materials in hardcopy form on the CLE sign-in form during the Convention.

Social Events 
Antonin Scalia Memorial Dinner
Non-Member
SOLD OUT
Antonin Scalia Memorial Dinner
Active Member
   SOLD OUT
Barbara K. Olson Memorial Lecture & Reception
Non-Member
    SOLD OUT
Barbara K. Olson Memorial Lecture & Reception         
Active Member
SOLD OUT

CANCELLATION FEE OF $100 AFTER MONDAY, OCTOBER 30.
NO REFUNDS WILL BE GIVEN AFTER MONDAY, NOVEMBER 6.


 


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9:00 a.m. - 9:15 a.m.
Welcome

2023 National Lawyers Convention

Topics: Federalist Society
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue NW
Washington, DC 20006

Event Video

Description

Featuring:

  • Hon. Dean A. Reuter, Senior Vice President & General Counsel, The Federalist Society

Speakers

Event Transcript

Hon. Dean A. Reuter:  Welcome in, everyone. If people could find a seat, please. I know we have lots of people in the hallway, but we’re going to go ahead and get started, if we could.

 

Welcome and thank you all for being here. Thank you so much. I am Dean Reuter, Senior Vice President and General Counsel of The Federalist Society. It is my pleasure to welcome you to our proceedings at this year’s convention. I want to also welcome everyone watching on the live stream or on video, as the case be. I also want to thank, in addition to you here in the room, thank our donors for their support, without whom, I suppose, we’d be hosting this meeting in a field somewhere. So thanks to those donors, large and small.

 

And thanks in advance — I never get to do this with a lot of people in the room — but thanks in advance to our staff, the staff of The Federalist Society, and it’s really not thanks in advance. They’ve been working on this for months, so thank you to them for their efforts. [Applause] A couple of logistical items. If you’re seeking CLE credit, you need to use the QR code to sign in at this point in time, and then, sign out with the same QR code. Sign in every morning, and sign out every evening. Otherwise, you’ll create some problems for yourselves.

 

Also, we have, again, this year, the folks from the Remnant Trust and their collection of rare documents. I don’t know if folks were able to visit the exhibit last year, but it really, really is splendid, and I recommend you take a moment. There are some breaks in the schedule. It’s on the second floor in the South Carolina Room. And if you were there last year, you were probably awed.

 

There is a collection of new and additional documents this year. I shouldn’t say “new” documents. They’re new “old” documents. And really, where else can you go and actually hold a 1350 copy of Magna Carta. Upstairs on the second floor is where you can do that. And you have -- you get to hold, interact with these documents, take pictures with them, tweet about it. So that’s the business items.

 

As to the introduction, a wise man once told me that a good introduction is both brief and clever, so I will at least try to be brief. Our theme this year is “Originalism on the Ground,” and that is the focus of our first Showcase Panel. This, I think, is the largest roundtable panel discussion we’ve ever had. There are more -- you could land a plane on this table probably. The fact is there are more jurists now that are more receptive than ever to originalism and textualism.

 

Now, that might give some of us in the audience in the room a sense of satisfaction or even a sense of accomplishment, a sense of even finality, well done. We’re done. But to paraphrase Churchill, this does not mark the end of any originalism project, not even the beginning of the end of the original project. Rather, we’ve come, perhaps, to the end of the beginning of the original -- originalism project. This project really is just taking off. So this is not the time to pause or suspend discussion and explication of originalism, our research and scholarship on originalism. We need to carry forth. This is the time to move forward and to carry on, and so, we shall.

 

And that, this talk about originalism, does remind me of a brief story. And it relates to the meaning of words, indeed the very meaning of originalism. Some very good friends of mine had two sons, Charlie and Ryan, both toddlers at the time of this story. Now, Charlie was the younger of the two, and he had a medical condition that required daily injections. So it was a daily struggle for the parents who had to administer these shots, sometimes in the arms, sometimes in the thigh. And anyone here with children or anybody here who was a child, you know that there’s nothing enjoyed quite so much by a toddler as an injection by needle.

 

Well, one day, Charlie was particularly resistant to his injection. And the regular compromises and bribes weren’t working, so his mother got creative and offered Charlie a new compromise. She said, “Charlie, you can have your shot anywhere you want it.” And Charlie thought just briefly and said, “I want my shot in Ryan.” [Laughter] So his mother had said he could have his shot anywhere he wanted. She meant, of course, his arm or his thigh. That’s the context.

 

But she had said, “Anywhere.” And if you look up the word, “anywhere,” in the dictionary, you’ll find out that Charlie was probably within his rights to answer as he did. But of course, originalism is something more than just original public meaning of a single word or even a single phrase. It’s more nuanced and more complicated than that. And those nuances and complications will be central to our Showcase Panel discussions at this convention, beginning with this first Showcase Panel.

 

For this roundtable, we’ve assembled experts from different parts of the law and public policy world to give various perspectives on utility and state of originalism. We’ve included practicing lawyers, judges, academics, public interest folks. Because I’ve asked our moderators throughout the convention to be brief in their introduction of panelists, I will also be brief in introducing our moderator, almost abrupt, in fact. Your program lists Judge Kevin Newsom as our moderator, but he’s encountered an emergency. He’s just fine, but he can’t be with us today. So Judge Joan Larsen is subbing in as a participating moderator for Judge Newsom, and I owe her a special thanks for that.

 

Judge Larsen, known to many of you, I expect, sits on the U.S. Court of Appeals on the Sixth Circuit. And before taking the bench, she was a long-time member of the University of Michigan Law School faculty. So for our discussions today, she’ll bring at least two important perspectives. I have to let you know. I can’t let this go without mentioning that she graduated first in her class at Northwestern University Law School, so she and I have in common the fact that we both spent some time at Northwestern Law School. [Laughter] I don’t think they had class ranks when I was there. I wasn’t informed about that. [Laughter] But with that, I will call the panel and Judge Larsen forward, please.

 

Hon. Joan Larsen:  Welcome, everybody, to the first panel of the 2023 National Lawyers Convention. I am really excited to be here and to help moderate this discussion with a fantastic lineup of speakers. This year’s convention is focused on originalism. And when I look at the topics that will be debated over the next few days, I know it’s going to be a terrific conversation. For example, there are panels focusing on how originalism touches on particular topics, like federalism, religious liberty, and criminal law.

 

But today, we’re going to kick off our discussion with a broader lens. We’re talking about originalism on the ground, meaning how do we do originalism? And I think this topic has both normative and descriptive dimensions. So how is originalism actually being done in the real world, and also, how should it be done? And it’s also both theoretical and practical. How would we do originalism in an ideal world, and how can we do it in the world we actually inhabit with limited resources and constraints on our time?

 

And finally, we should ask how can we, as attorneys, academics, and judges, do a better job at facilitating the use of this important tool? So to bring you this topic, I have the pleasure of introducing just an all-star lineup of judges, lawyers, and academics, representing both the federal and state perspectives on this topic. Their full bios are in your program. So I’ll be brief, and I’m going to introduce our panelists in alphabetical order; although, that’s not the order in which they will appear.

 

So first, at the far end of the table, we have Paul Clement. [Applause] Paul is no stranger to The Federalist Society, as you can tell from the round of spontaneous applause. Paul served as the 43rd Solicitor General of the United States and has argued more than 100 cases before the U.S. Supreme Court. Paul is obviously a formidable litigator, but he also has an academic pursuit. And he’s so interested in that academic pursuit that he’s actually going to leave us early to go teach his class at Georgetown Law Center, so when he leaves us early, please know it’s not something that one of us said. [Laughter]

 

Next, we have the Honorable Britt Grant of the U.S. Court of Appeals for the Eleventh Circuit. Judge Grant brings not only the perspective of the Federal Court of Appeals but can also bring us a view from the states. Before her appointment to the Federal Court, Judge Grant was Justice Grant of the Supreme Court of Georgia, and before that, she was General Grant but not that one. She was Georgia’s Solicitor General.

 

The Honorable Jim Ho sits here to my left. Judge Ho serves on the U.S. Court of Appeals for the Fifth Circuit. Before taking the bench, he was a partner and co-chair of the Appellate and Constitutional Law practice group of Gibson, Dunn & Crutcher. Judge Ho, too, can share some views from the states, having served three years as the Solicitor General of Texas. And back when Judge Ho was just a baby lawyer, I had the pleasure to work with him in the Justice Department.

 

Our next speaker brings a view from the academy. Professor Bernadette Meyler is the Carla and the -- Carl and Sheila Spaeth Professor of Law at Stanford Law School. And I just butchered that, and having come from the academy, I know that it is very important to say the names of the endowed chairs correctly, so I’m going to say it again: the Carl and Sheila Spaeth Professor of Law at Stanford Law School. Professor Meyler is a scholar of British and American constitutional law and of law and the humanities. Her current book project will be of great interest to those in the audience, entitled, Common Law Originalism. It looks at various eighteenth-century common law meanings of various constitutional terms and phrases and, I take it, expresses some skepticism over our ability to lay hands on a single determinate meaning for much of the Constitution.

 

Next, we have a voice from the states. We have with us the Honorable Jason Miyares, Attorney General of the Commonwealth of Virginia. General Miyares was elected Attorney General in 2021 and, from 2015 to 2021, served in the Virginia House of Delegates. He also brings the perspective of a local county prosecutor, having started off in the Assistant Commonwealth Attorney for the City of Virginia Beach.

 

Finally, we have Elizabeth Wydra. She is the President of the Constitutional Accountability Center. In that role, she is a frequent litigator and a contributor to our national conversation on the Constitution. She joined CAC from private practice at Quinn Emanuel in San Francisco, and she, too, spent some time as a teacher, a supervising attorney, and teaching fellow at the appellate litigation clinic at Georgetown Law School.

 

So with that terrific lineup and this large panel, we have decided to dispense with the traditional format of opening statements and get right to some questions. So I will pose some questions for our panelists. Hopefully, somebody will take the lead in answering them, but others should feel free to jump into the conversation. And if time permits, we will open the questions, of course, for the audience at the end.

 

So I thought we might start with some methodological questions. And for the most part, when people talk about originalism today, we’re talking about the search for the original public meaning of the Constitution. That contrasts with an earlier vision of originalism, which focused more on a search for the intent of the Framers. But if we’re looking for original public meaning, I think we should ask the question, “What does that actually mean? Whose meaning are we seeking, and how broad is that lens?” And I think Elizabeth Wydra might have some perspectives on that topic.

 

Hon. Elizabeth Wydra:  Yeah.  Thank you so much. Thank you so much, Judge Larsen. And thank you so much, everyone here, for joining us this morning, and thank you for Dean inviting me to be here to talk about this really interesting subject with such an esteemed panel. I think that that question is still something that is being debated and disputed and explored. I come from an organization that focuses on originalism, and while we are nonpartisan, we are avowedly progressive. So when I take a look at whose voices perhaps should be included in the search for original public meaning, my lens seems to be broader than, for example, the lens that was included in Justice Alito’s Dobbs opinion or Justice Thomas’s Bruen decision.

 

And I think that it’s a challenge to us litigators to make sure that we are presenting a broad variety of voices whose opinions about the original public meaning matter. It’s a challenge to the academy, for sure, to discover, uncover the thoughts and debates of groups that have not always been the focus of historical analysis. There’s been some really fantastic recent work about the way that Native Americans understood the original public meaning of various constitutional provisions.

 

There is work out there already about how when the Reconstruction Amendments — Thirteenth, Fourteenth, and Fifteenth Amendments — were being ratified, the very rigorous debates that were going on in the African American community. And I think far too often the decisions that we see reflect the views on original public meaning of the, perhaps, most powerful group of people at the time. We are, understandably, looking back 100 years, so if you think whose voices are going to be recorded more frequently, those are probably the easiest to access. But it doesn’t mean we shouldn’t try harder because if you think about who was going to be deeply impacted, for example, by the Fourteenth Amendment, the people who had been freed after the Fourteenth Amendment from -- after the Thirteenth Amendment from enslavement certainly had a very substantial stake in what the Fourteenth Amendment meant: what kind of freedom that they had been granted in the Thirteenth Amendment, what that would mean, what the contours of that freedom would mean.

 

So to me, when I’m looking at original public meaning, looking at black newspapers from the time, looking at the way that the -- there were conventions of black activists and freed African Americans. Their debates and their views on the original public meaning certainly should be included in that lens. And, I think, as we have scholars doing more of this work, doing more of this excavation, then I think that conversation will only become richer and probably more reflective and representative of the true original public meaning of all of the folks whose views and voices should count.

 

Hon. Joan Larsen:  Yeah. Sure. Professor Meyler.

 

Prof. Bernadette Meyler:  Yeah. I would just love to add a bit to what Elizabeth was saying, which I think is part of -- looking at the different voices also is about what kinds of governmental materials are examined in an originalist investigation. So if a court is looking primarily at, say, state statutes, then the court might be excluding a number of voices that weren’t represented at the time of the enactment of those statutes. Whereas, if we think about looking at legal practices or, say, common law meanings, that may actually allow for the inclusion of more voices than looking at state statutes because even enslaved persons often appeared before the judiciary, that there are ways of excavating different voices through, say, the common law tradition that might not be apparent within the, say, state statutes or the work of representative bodies. So I think that being attentive to what kinds of governmental sources are used as well as looking at the kinds of newspaper sources and other sources that Elizabeth was mentioning is another way of opening up the conversation when you’re looking at different voices that are part of a conversation about original meaning.

 

Hon. Britt Grant:  I’ll add one thing, too, if I might. Excuse me. I think original public meaning has become the main lens of originalism, but to Dean’s point, I don’t think that originalism as a scholarly or judicial enterprise has been completed as a project. And I’ve recently heard presentations about original methods originalism or original law originalism, and I think it’s important as we continue this project to be open to new ideas about how we can best interpret the Constitution or even statutes. I think that’s an important thing to consider.

 

When we think of originalism, we often think of just the Constitution, but in my experience, both at the state courts and at the federal court, sometimes I was looking at statutes from the 1800s to try to figure out what appellate procedure from 1964 in Georgia really meant. And so, I think it’s important to really keep our eye on all of the options for originalism as an interpretive method and to keep open, keep reading scholarship, thinking through all this -- all those different aspects of it.

 

Hon. Joan Larsen:  Paul.

 

Hon. Paul D. Clement:  So I’d just like to, in a couple of the earlier remarks, just sort of concur in part and dissent in part. I’m not a judge, but I still like to think I can do that. [Laughter] I completely agree with Elizabeth that when you’re interpreting the Fourteenth Amendment, that taking into account the understanding of the original public meaning in the African American community’s absolutely essential. I’ve used that to argue that actually the Freedmen and the Freedmen Bureaus had a robust understanding that the Fourteenth Amendment was going to protect their Second Amendment rights. And that’s exactly what they understood was part of the protection that they were getting through the adoption of the Fourteenth Amendment. And I do think, more generally, sometimes, The Federalist Society folks, we love to look at sort of Madison and Hamilton, and we’re not as interested in the Reconstruction Amendments, and I don’t know why that would be the case.

 

The Reconstruction Amendments are hugely important to the extent that they are the vehicle through which the Bill of Rights is incorporated against the states. There’s a robust debate about what original public meaning matters: 1789 or 1868, and I don’t know how that’s ultimately going to be resolved. But personally, I think, 1868’s got to be hugely relevant, and I think some of the leading Reconstruction-era senators are folks that we ought to have -- I don’t know -- panels named after or something. I think we should really be focused on that because it’s a huge part of our constitutional history, so I totally agree with that.

 

I guess where I dissent in part is I think the project of consistently trying to unearth something that was obscure even in 1789 has really limited utility. In the context of arguing the Bruen case, the folks on the other side unearthed a third reporter of Knight’s case that was a little bit different from the two standard widely circulated reports of that decision and tried to make something of it. But there’s -- if there’s an obscure report of a case in three libraries in England and no evidence that that report ever made it to this side of the Atlantic, who cares? The idea is we don’t care about what people were thinking in 1789 just for the sake of identifying somebody that had a goofy view of an otherwise fairly clear provision in the Constitution. What we’re -- I think the point of the project is to try understand what the people who were ratifying the Constitution and discussing the Constitution -- and I’ll spot Elizabeth this: I don’t think we only care about the people who could vote in the ratification process. I think we care about everybody in the body politic on this side of the Atlantic.

 

But if you come up-- if some great scholar comes up with some private diary of somebody in their own idiosyncratic view of something, I don’t care about that. That doesn’t seem at all relevant to the project, so I do think we got to -- you got to keep in mind the whole endpoint of the project in deciding which sources you’re going to credit and which sources really move the needle.

 

Hon. Elizabeth Wydra:  I think that you’d probably fail the public part of the public meaning if it’s someone’s private diary, but I think we just have to be, I think, very cautious about noting what things might be obscured by the fact that certain historians have been doing historical work and haven’t been interested in certain voices versus what is obscured because it’s in someone’s drawer next to their bed. And so, when you’re talking about entire tribes, for example, debating parts of the Constitution that are very much relevant to their daily lives, that isn’t something that’s gotten a lot of attention because -- partly because some of the scholarly work is just beginning, but that is the type of thing that I’m saying is really important to include and making sure that -- there’s a lot of criticism, I think, of the project that people pick and choose what works best for them on both sides. And by being more inclusive with these voices, I think, we can have a richer view and more accurate view of original public meaning and also see the places where there is contestation, where there might be several different original public meanings and having to have the judges -- ya’ll have a hard job sometimes. It’s not always just super easy, one answer, and that’s going to be something that should be presented to the judges for them to interrogate themselves.

 

Hon. Joan Larsen:  Judge Ho.

 

Hon. James C. Ho:  So just to dive into this nice exchange we’re seeing, I like information, the more data, the better, just because I’m interested and want to sort to get -- make sure I’m getting the best arguments on all sides. So in that spirit, I certainly have no concerns and would agree with Elizabeth that I want to hear about everything. Having said that, I think we would want to be sensitive, of course, to are we seeing a situation where different communities have different meanings of words. Is it sort of -- there’s ordinary meaning that the community understands, and a particular community that sees it as a term of art. Is it genuine dispute over words having different concepts, or is it really just different communities having different policy preferences? Without knowing the details of some of the cases we’re talking about here because I wasn’t involved in those, I would be curious to see to what extent the differences are differences of meaning or -- versus differences of policy preferences.

 

I like Dean’s story about the toddlers and the fear of the shots. I’ll confess it reminds me of my own kids. Allyson and I have wonderful children and, frankly, somewhat weird children. These are the only kids you’ll ever meet who do not like their birthdays because they are worried about going to the doctor for the annual exam and getting shots. I’m not kidding. They literally tell us they don’t like their birthdays for that reason. So I appreciate the story on a personal level.

 

Of course, the answer to the proposed interpretive fight in that story is does the child actually believe that anywhere means anywhere, anybody’s body, or does context make clear that it’s anywhere on his body? And so, again, he may want to say he that has a different community definition, but I do -- but I wonder if it’s more motivated reasoning than an actually good faith debate about the meaning of words.

 

Hon. Joan Larsen:  All right. So since we have an expert on Bruen here, Bruen introduced something that might be -- I’m not sure if it’s new, but it certainly became prominent in Bruen, and that is a discussion of this phrase, “text, history, and tradition.” And so, one thing we might want to think about is what do each of those individual items — text, history, and tradition — play in a proper originalist analysis. Tradition is the one that really stands out on the list, and Judge Newsom, who was originally going to moderate this panel, wrote in a concurrence to his own excellent opinion. He wrote a concurrence to the opinion in which he has a footnote, which raises this question.

 

He said, “It’s never been clear to me what work tradition is supposed to be doing in the tripartite “text, history, and tradition” formulation. To the extent that tradition is meant to stand in for the original, i.e. historical, public meaning of the words on the page, it’s duplicative. And to the extent that it is meant to expand the inquiry beyond the original public meaning, say, to encompass latter-day-but-still-kind-of-oldish understandings, it misdirects the inquiry.” So I guess I’ll just throw out Judge Newsom’s musings and let you all muse. Anyone want to comment on what role tradition is serving?  Paul?

 

Hon. Paul D. Clement:  I’ll take a crack at it, not that I really think it has a lot to do with having argued Bruen, but I do think this is an emerging trend. I think that that also -- when the Court noted the death of the Lemon test and talked about what would replace it, it also talked about text, history, and tradition. So this is obviously -- it’s kind of a throughline in a lot of areas of the law, and so, it would be nice if history and tradition were not like a doublet that really had no independent meaning. It seems like if the Supreme Court telling us three things, we ought to try to differentiate the last two. I think one way of thinking about it is that you could think of history as being the things that predate the relevant time period, like the Framing, if we’re talking about that, and then the tradition being what follows the Framing to the point where the Court is reaching the interpretive question. And maybe I’m sort of very, very gently taking a little bit of issue with Judge Newsom’s framing. It’s never a great idea for a lawyer. But to me, I --

 

Hon. Joan Larsen:  He’s not here.

 

Hon. Paul D. Clement:  Yeah, well. That helps. That helps. But maybe a good illustration is something like the practice of legislative prayer, and does that violate the Establishment Clause? And you could look at the practice in England in the Parliament or the practice in Congress and the Articles of Confederation, and I think that you would say that’s history. And then, you would look at the fact that Congress had a chaplain in the First Congress, and all the same people that were proposing the Bill of Rights and the Establishment Clause, in particular, didn’t think there was anything problematic about having a chaplain. And then, you look at the fact that the Second Congress and the Third Congress and the Fourth Congress and the Fifth Congress and the Sixth Congress, etc., etc. all had the same thing. And then, in the 1970s, the Supreme Court is asked to say does this unbroken practice violate the Establishment Clause. Has there been a sort of lurking Establishment Clause violation going back to the Framing of the country?

 

And it seems to me that there is -- that it is perfectly appropriate for the Court to look at that tradition and to simply say, well, that stuff happened after the Framing, so it doesn’t really inform the original public meaning. I guess I would disagree, which is to say, first -- you could probably spot me the first twenty Congresses because that’s a bunch of people who might have been alive and well at the time of the Framing, but then, there is a certain humility that kicks in at a certain point. And there’s almost like a sibling resemblance with something like the major questions doctrine where just when you’re -- and whether you buy sort of the full-blown majority view or the Justice Barrett concurrence view, I think there’s a strain of judicial humility that sort of says, gee whiz, if somebody’s coming in and telling me something that has been going on a long, long time and nobody’s thought it either violated this constitutional provision or violated this statute, that is something that ought to be a strike against the person saying that this well-established practice has really violated the law all around. I don’t think it -- I think there’s probably a reason it’s third on the list. But it seems to me there is something there that’s different from history and probably does have an important role to play in interpretation.

 

Hon. Joan Larsen:  Thoughts? Comments?

 

Hon. Britt Grant:  I think I would generally agree with that, and I would say that whether we look at tradition as a reflection of settled understandings that, as Paul says, maybe judicial humility would suggest thinking really hard before we interrupt those settled understandings or some sort of liquidation throughout time. We’ve seen Founders discussing liquidation, and there are a lot of debates about what that means. But maybe that’s an idea where, even if it wasn’t entirely clear at the beginning, if we can see that there is a tradition of interpreting something a specific way, then maybe that’s something that we could pay attention to as well. So it’ll be interesting to see, as this doctrine develops and extends in other areas, whether we reach any consensus on what tradition means with respect to those two things.

 

Hon. Joan Larsen:  Bernadette -- Professor Meyler? Sorry.

 

Prof. Bernadette Meyler:  Yes. No, that’s okay. So I think that I see it going back a little bit further to the Washington against Glucksberg test for the Fourteenth Amendment due process inquiry and that their tradition is playing a role and a tradition of protection of particular rights. And I think that, in that context, we might wonder whether evolving tradition or a more static tradition is what should be looked to and whether -- and also how broadly a tradition can be defined. Is it a tradition of protecting parental rights per se or protecting the rights of a non-marital father? So I think that those are some of the issues that I see coming up with respect to tradition. It’s the question of how broadly a particular tradition is defined and also whether you’re looking to an unbroken tradition since the Founding or looking to the evolution of tradition.

 

And that’s where I might distinguish it a bit from what Paul Clement was saying about major questions because, in that context, it’s not just something that’s new that might be called into question under certain understandings of tradition but rather something that’s evolved away from the original meaning. So I think that sometimes there could be a conflict between, say, precedent or -- and I know there’s another panel on precedent -- and original meaning where the tradition that has evolved through precedent might have deviated from what people now think would be the original meaning of a particular clause.

 

Hon. Joan Larsen:  Right. And I think an example of that might be if you think about the Crawford case. So we had a long tradition of substituting hearsay rules for confrontation. We did that for a very, very long time, and the Supreme Court, in Crawford, said, “No. We have to look at confrontation and what the original meaning of that is. And it’s not the same as the hearsay rules.” And so, despite the fact that there was a long tradition, we went -- we reverted to the original public meaning.

 

Hon. James C. Ho:  Well, I wonder whether that suggests what I assume to be true but -- and not controversial but would welcome people to disagree. When we talk about text, history, and tradition, what I’m assuming we really mean is text. Text is what we’re looking at, whether you call it textualism or originalism. That’s what we’re interpreting as lawyers and judges. It’s to the extent where the text has -- is ambiguous. It’s capable of different of meanings -- competing communities, what have you, where we then look to other tools, whether it’s dictionaries or history or tradition or canons of interpretation or anything else.

 

You mentioned Glucksberg, and whether it’s Glucksberg or Bruen, I think, frankly, we’re all sort of eagerly awaiting to see what the Supreme Court tells us it means when it refers to history and tradition. Glucksberg seems to be the standard, revived and recodified in Dobbs. Tradition could, theoretically, include a lot of things. It does include economic liberty. You referred to parental rights. If we’re serious about tradition in addition to text, that opens up a whole new area of analysis, or is tradition subservient to text, which might take us to a different path. And I think the Supreme Court presumably will tell us at some point.

 

Hon. Joan Larsen:  So maybe the test, as you would propose it, is text as informed by history and tradition?

 

Hon. James C. Ho:  I assume that’s what we’re doing, but I’m waiting for the Supreme Court to teach us, so I can do what they’re telling us to do. It’s not always easy to do what they want us to do.

 

Hon. Joan Larsen:  Fair. Speaking of -- that’s a perfect segue. So let’s talk about precedent. So what role does an originalist analysis preserve for precedent? Do we think of precedent as part of originalism, as sort of being baked into Article III’s reference to the judicial power? Or is precedent antithetical to a true consistency -- consistent commitment to originalism? Do the practitioners on the panel think differently about this than the judges? Anybody want to talk about precedent? Nobody wants to talk about precedent. Okay. So the Supreme Court -- I’ll talk about precedent.

 

Hon. James C. Ho:  It’s like Bruno.

 

Hon. Joan Larsen:  So the Supreme Court has told us -- for those of us on the panel who are middle managers, right, appellate judges, we have to do what our nine bosses tell us, and we try very hard to faithfully follow what they tell us. And one thing that they have told us very clearly -- you might call this -- I like to call it the Agostini principle. Some people call is the Rodriguez [inaudible 00:50:39] principle. But one thing they’ve told us very clearly is that when there is a case that is directly on point, even if we the lower court judges look around and think, “Gosh, the foundations of this precedent have been undercut. It doesn’t seem consistent at all with the way that the Supreme Court is telling us to approach cases.” Now, the Supreme Court has told us, “You are to apply our precedent when there’s a case directly on point, and we, the Supreme Court, will overrule our own precedence. Thank you very much, lower court judges, for your input.”

 

So I try to do that because that’s what they told me to do. But one thing that I think about often is whether that’s consistent with the judicial role. If you think that a case is wrongly decided, if it’s a case that wasn’t decided using an originalist methodology, if you think it’s a case that you’re pretty sure the Supreme Court would overrule, what do you do as a lower court judge? So I can toss that out to the other judges, or I can keep talking, but it’s probably more interesting to hear from you.

 

Hon. James C. Ho:  I’ll take a quick stab at it. So this is one of these eternal debates that I have with -- I’m sure many judges have with law clerks, which is -- the argument will be, “Judge, you didn’t swear an oath to uphold Supreme Court precedent. You swore an oath to uphold the Constitution. So does that suggest that you get to do whatever you want in terms of interpreting the Constitution?” It’s an interesting argument.

 

It’s obviously trying to look at the words of the oath, and it’s a view that’s held by, to my knowledge, not a single member of the federal judiciary, [laughter] for any number of obvious reasons. It’s a hierarchal; we don’t want to be fired; we don’t want to overturned, etc., etc. Or if it’s anything else, you’re just kind of bumping your head against the wall. Right? The Supreme Court’s going to do what it’s going to do, and we have to follow it.

 

The way I’ve tried to reconcile it — and I often cite Judges Bumatay and Bush because they’ve written a lot on this topic — is we’re duty-bound to -- if you believe in originalism, which I just sort of think of as lawyering, then we’re duty-bound to be faithful to the text and original understanding of whatever words we’re supposed to be interpreting to the maximum extent permitted by a faithful reading of Supreme Court precedent. Now, obviously there are some words there that require further fleshing out, and I’m interested in sort of seeing how we flesh these out in future cases, but the point’s -- to me, the main things are maximum extent consistent with a faithful reading of precedence. That’s sort of how I try to wrestle with it at a sort of abstract level, and now, we have to sort of implement that in subsequent cases.

 

Hon. Joan Larsen:  Does that mean that you would read a precedent -- the strict command is when there is a case directly on point. And does that influence how broadly or narrowly you read the precedent?

 

Hon. James C. Ho:  I think that’s what the word, “faithful,” is doing. Right? So you could say, “Well” — to use a very silly, stupid example — “the facts of that case -- that Supreme Court were done on a Tuesday. This is on a Wednesday. Obviously, that’s not faithful.” And so, you have to figure out what is the precedent. What is the rule that is being imposed on us by that Supreme Court decision?

 

And we try to be faithful to it, but we don’t have to extend it to situations that go outside of it. I fully acknowledge that leaves a lot of open discussion for what does it mean to be faithful, and as I said, that’s -- one sort of modest thought that I’ve seen fleshed out is you don’t want to make the law completely illogically by making it -- by distinguishing in ways that are utterly unprincipled. And so, that might be an initial take on that.

 

Hon. Britt Grant:  I think the question for us is very different than, of course, the question for the Supreme Court. Right? So I think they -- I think the question that they deal with is, to my mind, the most difficult one in originalism, which is where is that line between sticking with precedent, and it’s -- in certain cases, you know you have to overturn it. Right? We all know the classic cases that I won’t list here, but I think for us, as circuit judges, it’s a different question. I think I agree with Judge Ho about reading -- I won’t resay what he said either, but I think sometimes, though, there’s a kind of administrative rule to precedent that we also forget about.

 

I think the Eleventh Circuit has a unique background in this because, having split from the Fifth Circuit, the court made a very conscience decision to adopt all the precedence of the Fifth Circuit for our own. So in almost every single Eleventh Circuit case, you’ll see a footnote citing Bonner v. City of Prichard. I’m maybe messing that up, and I see it so much. But the point was the fact that a panel of this court may come out differently on one issue one time was not worth all of the upset to people’s understanding, lawyers’ understanding, litigants’ understanding of how they needed to put their behavior forward. So I think, as a -- on kind of the smaller issues, I think precedent becomes very important as an administrative matter. And then, on the more publicly divisive issues, I think it’s really interesting to see how we can apply some of those same tools in a thoughtful way and make sure that we’re fulfilling our duty to the Constitution and as intermediate appellate court judges as opposed to the ultimate deciders on the Supreme Court who, as you say, give us certain instructions about what to do.

 

Hon. Joan Larsen:  Right. So I wonder to what extent that Agostini principle influences the way that lawyers think about presenting arguments to intermediate appellate courts. So if you’re a litigator and you think, “Look, this case is governed by precedent; it’s a constitutional question, but it’s governed by precedent,” are you just going to argue the precedent and then save the originalist fire for the U.S. Supreme Court? Or do you think about, “Well, maybe there’s an opening here; maybe there’s a way to read the case narrowly, the precedent narrowly,” and convince the panel that there’s an opening?

 

And part of this -- I wonder about this because, having been on the federal court now for, I don’t know, five years, maybe six years, we get very little briefing in our court that engages actual originalist methodology. There’s a case the Supreme Court just heard called Culley v. Marshall. I think that was last week. It involves the forfeiture of automobiles and whether you have a right to a pre-termination hearing when your vehicle is forfeited. Our court had decided a merits case on that. I was not on that panel, but the case was presented to a panel I was on earlier, the same question, and we dismissed at the motion-to-dismiss stage, so we didn’t reach the merits.

 

But in that litigation, there was no originalist briefing whatsoever of -- the litigation, as I recall, involved should we apply one of two doctrinal tests made up by the Supreme Court, the -- a balancing due process -- Mathews v. Eldridge balancing test or the Barker v. Wingo, also balancing test, out of the Speedy Trial Clause. And that’s the way the case was framed. I’m listening to the oral arguments last week, thinking, “Oh, I know what this case is about,” and they’re talking about, “Well, should we follow the historical analysis presented to us by this group of amici or by this group of amici?” And I thought, “Wow. It really would have been helpful to have some group of amici. That might have really been a nice thing.”

 

So, I guess, the question is as somebody litigating in the appellate courts, do you present your originalist case? Should you present your originalist case, or should you just hold your fire for the Supreme Court when all the guns will come out, and they’re going to get the best advocacy, and they can come to the best conclusion that way?

 

Hon. Jason Miyares:  I think it has been an interesting transformation, particularly in the state courts, what we have seen, where they’re now -- traditionally, they have outsourced and not used federal interpretation to interpret their state statutes. I think we’ve seen the opposite in the last several years, almost a revolution. I know that we have a case in Virginia, the West Point School Board case, where we actually made the argument to our solicitor, Andrew Ferguson, I think, quite robustly, looking at the Virginia statute of religious freedom and also looking at the -- both the original intent and the tradition of that. That was originally introduced in 1779 in the Virginia General Assembly at the genesis of Thomas Jefferson carried by a young, quiet delegate from Orange County, James Madison, with vehement opposition by a very vocal member of the General Assembly named Patrick Henry. And the origins of that really was that Patrick Henry had introduced legislation that was going to seek state support for the newly minted Episcopal Church in Virginia. Problem is almost every other Christian sect was horrified by this, and there was some vehement opposition.

 

And so, when we looked at -- when our solicitor argued it, we pointed out — in Virginia and it was reaffirmed; it was actually passed in 1786 by the General Assembly, and it was reaffirmed in 1971 — that the Virginia statute provide much more robust protections than the First Amendment Free Exercise Clause. And so, I thought we were able to make, I think, a pretty compelling argument, looking at the history of that, of the very explicit language that nobody should be burdened by practicing their religious beliefs by the state. And I’m not going to necessarily get into the facts of the West Point case because, candidly, it’s still pending in front of the Supreme Court. But I thought that was a great example of both using originalism and the precedent of what our case law was in a new setting in state court, which previously hadn’t really been done before.

 

Hon. Paul D. Clement:  Yeah. And Judge Larsen, I think from the perspective of federal court practice, at least the way I would answer the question, is it depends. And it depends where you are in the litigation. Are you trying -- where is the precedent? Is this a case where you really think you can maneuver around a Supreme Court precedent? If you are -- if the whole point of the litigation is to get a Supreme Court case overruled and the lower cases are hemmed in by the Agostini approach, then I don’t think there’s any point in pretending that those courts can overrule Supreme Court precedent. I think, in those circumstances, there’s one of two playbooks, and I’ve seen people do it both ways.

 

There’s a playbook that, I think, Mike Carvin used in trying to get the overruling of Abood back in front of the Court after the Court had signaled it, and he basically went into district court and said, “Hello. I lose under Abood. Please rule against me very quickly.” And then, he went to the Ninth Circuit and said, “Hello. We lose under Abood. Please rule against us very quickly.” And then, he filed the cert petition and got cert granted.

 

So that’s one approach. But you got to be pretty confident, a, that there’s no wiggle room, and, b, that there’s going to be a cert granted at the end of the rainbow. And so, if you’re litigating in a situation where it’s not that clear, you’ll try to get around it. You might use originalism. But I guess, this gets to a broader question, which is -- one reason you might do that as a litigant is one of the things that I think is a legitimate move for court of appeals judges, notwithstanding the Agostini principle, is there is this thing called the concurring opinion. I know Judge Ho’s used those from time to time.

 

And I don’t think there’s anything wrong with basically a judge saying, “I’m totally bound to apply the Supreme Court precedent, but I’m going to tell you in my concurring opinion why I think it’s wrong and why I think it would be useful if the Supreme Court revisited it.” And I think that’s both legitimate and, frankly, important because one downside of the Agostini principle is -- it’s great, and it’s orderly, but then, it doesn’t provide a great signaling device to the Supreme Court of the United States as to when they should reconsider their precedence. And they turned down a lot of cert petitions in my experience, so having something like a concurring opinion to point to can be really helpful.

 

Then, let me just say one other thing, which is -- so I think your point, Judge Larsen, really points to the -- kind of a broader phenomenon, which is one thing that’s a little weird about our system is that cases look a lot different in the court of appeals typically than they do in the Supreme Court of the United States. And that’s kind of weird in a system that’s supposed to be about that vertical review. And part of it is inevitable. The average court of appeals case probably has four or five issues in it, and they have to cover all those in the word limit. And then, it gets up to the Supreme Court, and there’s just a single issue there. The number of amici is generally smaller. I guess my thought, though, is if I were a court of appeals judge, I would, in cases that I think had a good chance of getting to the Supreme Court, I would try to narrow that gap.

 

And again, I think there are legitimate ways to do that. One example is that the -- if you have cases where it’s almost inevitable that the Supreme Court is going to call for the views of the solicitor general and be quite interested in what the solicitor general has to say, if I were a lower court judge, I would call for the views of the government -- the relevant government agency myself. Otherwise, it seems like you’re setting yourself up for failure because the Supreme Court’s going to be looking at something that’s very influential to them that you didn’t even give yourself a chance to look at. And similarly -- and maybe the judges on the panel would disagree with me, but I think if you’ve got a case where you really think this could go to the Supreme Court and you think there’s important historical literature that amici could bring to bear and the parties have dedicated all of three paragraphs to the argument, I don’t think there’s anything legitimate -- illegitimate, rather -- about a supplemental briefing order that invites the participation of amici.

 

Again, maybe you think that’s overreaching. Maybe you think that violates the strict Silberman-esque view of the Article III courts are stuck with the briefing of the adversarial parties, no matter how lousy. But I tend to think that’s a legitimate move, and it narrows that gap because I would think it’s very frustrating, as a court of appeals judge, to have the Supreme Court deciding an issue where, by the time it gets to the Supreme Court, it just is unrecognizable.

 

Hon. Joan Larsen:  That’s actually one of the first things now Chief Judge Sutton said to me when I came on the court is, “There’s a lot of things you’re going to learn about what it’s like to be a court of appeals judge, and one of those things is you’re going to decide a bunch cases, and they’re going to get upstairs, and you’re not -- you’re going to say, ‘Oh, wow. I didn’t know that’s what this case was about.’”

 

Hon. Elizabeth Wydra:  So I just want to apologize. One of the briefs that Justice Barrett was talking about in the Culley oral argument was indeed filed by the Constitutional Accountability Center, so I apologize for not filing that brief in your case.

 

Hon. Joan Larsen:  Accepted.

 

Hon. Elizabeth Wydra:  Yes, it is truly a resources bandwidth question. But it’s -- that is, I think, a :real issue for the lower court cases because -- and it could be solved, as Paul suggests, by inviting amicus participation, but good originalism takes time, and it takes expertise, and particularly, on the left, there are not that many of us who are practicing it. And CAC is small but mighty, but we can only do so many cases. And I like my fellow colleagues to be able to sleep some time. And so, being able to write briefs that have that rigorous, credible originalist analysis takes a lot of work.

 

And so, it’s one thing when it’s in the Supreme Court, but it’s another trying to cover all the ground of the courts of appeals. And I think that’s a real challenge for judges because then are you trying to do it yourself. Are you asking for amicus participation? As a litigator, I want to give you the best argument, so I would like for my side -- whatever side I’m advocating for to be giving you those arguments. But that is not always possible in every case.

 

Hon. Joan Larsen:  Yeah. Professor Meyler.

 

Prof. Bernadette Meyler:  Yeah. I was very curious about everyone’s take on whether or not to invite amicus participation at the appellate level, but I also wanted to introduce another element, which is just that I think some Supreme Court cases are directly lower courts, especially district courts, to actually engage in more originalist inquiry, especially if you think about the aftermath of Bruen, that in order for the government to kind of demonstrate that there were analogous statutes at the time of the Fourteenth Amendment, that, in a way, they’re going to have to already be doing originalist analysis at the district court level. And I’m also curious about how people feel about the expenditure of time on originalist analysis in that context as well.

 

Hon. James C. Ho:  So just to follow up, there are two things that have been said that I -- that are interesting to me. One is the resource limitation issue, and the other is the amici aspect. So on resource limitation, I was actually a litigator, an appellate litigator, longer than I’ve been a judge, and what strikes me as resource limitations are a huge issue on both fronts. In practice, obviously, it’s the limitations of your client. Some clients want to do full [inaudible 59:07]; other clients won’t. I think Paul is absolutely right. It depends on the nature of the case. The lawyer has to make the call about what’s valuable.

 

The resource limitations issues is also very serious in the judiciaries, particularly court of appeals. As practitioner, let’s say you argue, what, one case a month, one every other month, more than that. Whatever the number is, it’s some handful of cases that you’re getting involved with on a per-year basis. That provides you a decent -- hopefully, a decent amount of time, assuming your client’s willing, to really get in deep to make sure you’ve maximized every aspect of whatever legal issues are presented in your case. On the Fifth Circuit, we do 20 arguments per sitting, per month, seven sittings a month, and that’s just the argue cases in addition to all the other matters that we have to deal with. And so, the resource limitations are very serious, and so, we are essentially looking to lawyers to present briefs that are hopefully well-written and cover the waterfront.

 

And the way I think of it is if it’s not in the briefs and we think it’s important, we can dive in ourselves and try to -- obviously, we have party-presentation issues and forfeiture issues and whatnot, but as long as you presented the issue, we could theoretically do our own additional -- make sure you found all the cases and all the right authorities. But what I struggle with is every single minute I spend diving deeper on one case is time I’m taking away from every other case on my docket, never mind my family and my sleep. And so, I think the resource limitations on both sides of the bench, the podium and on the bench, are important aspects of this issue.

 

As to amici, I like amici. I liked it when I was a practitioner. I think they can be helpful. Obviously, the “Me Too” type of amicus brief where you’re just repeating what somebody else says, that not terribly helpful. It’s just a waste of space. But when it’s a good amicus brief, that can be wonderful.

 

And it’s not necessarily that the practitioner -- the party lawyer has messed up. Maybe they’ve omitted something, but maybe the amici has an angle that it’s more awkward for a particular party to present. I was involved in a case, one of these pre-Bostock-type cases where we invited amici, one particular amici, to argue because neither side had argued that Title VII doesn’t apply to certain classifications. So we invited amicus to do that. Having said that, I get nervous about doing that too much. I’m not sure why. Maybe it’s the silver mask view of the world. I certainly would be wary about playing favorites, signaling where a court is.

 

In the case that I mentioned where we did it, it was literally because we had one side of the case not represented. And so, we needed somebody to literally fill in a position. It’s sort of like when the Supreme Court invites somebody when the government confesses error. It’s that sort of thing. You just want the adversarial process. Beyond that, I’m -- put me as not sure.

 

Hon. Jason Miyares:  And I would say, just from the attorney general’s perspective, what we have seen is, particularly when you’re looking at amicus, you have state AG offices that are very under-resourced, and often times, they will look to team up with states with larger AGs office that maybe are aligned philosophically. And essentially, it’s a way to pull our resources together, which we do all the time, whether it’s a multi-state investigation. But we’ve found that repeatedly, what I have seen — it’s actually one of the things that has surprised me in my role is how much coordination there is with the other comparable state AGs and their SGs in working together on amicus briefs, almost like assigning homework assignments, of, “Can you help state X on this matter?” And everybody does each other a kind of solid when they need assistance themselves. And I have found it invaluable because what you’re able to do is you’re to engage more and maximum your resources, and you’re really able to help some of these states that have very, very small SG offices and able to really assist them, to provide resources. So I view it as invaluable.

 

Hon. Britt Grant:  I’ll add two things. First, to follow up on his comments, when I moved from private practice to the state attorney general’s office, I almost immediately within six months thought, “Wow, if at least a few of these cases that I was, I wish that we had reached out to relevant attorney general offices to ask them if they would be interested in filing an amicus brief to tell them about this case that was going to really affect the states in very particular ways.” And the courts didn’t have the states’ perspectives, and I think it might have made a difference in at least one and maybe two cases that I can think of right off the bat.

 

So I would say don’t ask states -- as he says, there are resources issues. Don’t ask states just willy-nilly but really think through. If you’re litigating an issue that’s going to make a big a difference to the states, it’s going to have an impact on state laws, even if it’s a federal case, then don’t hesitate to try to find those connections, try to reach out to the attorney general’s office, and let them know about the case. They may or may not be able to get involved, but I think the states do have a very important perspective in our system that -- thankfully, the states are litigating more and more and filing amicus briefs more and more. But I think it’s an area that still has room for additional growth.

 

And the other thing I’ll say about the adversarial process is so many of our doctrines are designed around the adversarial process. Right? Standing has been a really big question in the Supreme Court and the circuit courts lately. And I think when we think about doing it all on our own, we forget that so much of our system is designed around the idea that litigants will have the right incentives when they have a problem to really try to figure out the best arguments in favor of their position. And as judges, we’re just not always situated to figure out the best arguments in favor of one position and to realize that there are arguments on the other side, maybe from perspectives that we haven’t considered. And so, to my mind, briefing is really important and really helpful almost any time you’re digging into one of these questions. And I hope that, in both state and federal courts, we’ll start to see more of it as lawyers become aware that a lot of judges are thinking about these things in different and expansive ways.

 

Hon. Joan Larsen:  So we’ve been talking a lot about -- almost exclusively, about originalism as it’s practiced in federal court. We have here a former state Supreme Court justice. We have the attorney general of a state. General Miyares touched on this already a little bit, but I wonder whether there’s something different about doing originalism when you’re talking about interpreting a federal constitution, which the wrap on originalism that you hear on the -- from its critics is, ‘Oh, the federal Constitution is old, and it’s impossible to amend, and therefore, the judges need to update it.” That would be the critique.

 

I wonder whether that same -- those same concerns exist in most of the states, not all, for those of you on the Eastern seaboard. For those of you from Massachusetts with your Constitution of 1780, okay, I yield. But I come from a state which ratified its most recent constitution in 1963, so it’s not old, and it’s not hard to amend. It’s super easy. You can amend the Michigan Constitution -- not super easy but comparatively easy. You can amend the Michigan Constitution by initiative. We saw it happening in states just yesterday. And so, I wonder whether the arguments against originalism have less weight in state courts, and I wonder whether there’s anything different about doing originalism when we’re talking about a state constitution.

 

Hon. Jason Miyares:  At least from my perspective, Jefferson called the states the laboratories of democracy, and I find it fascinating that you’re having this kind of, not revolution, but a rethinking — Judge Sutton and others that have really pointed at using originalism in our state constitution. Obviously, Virginia and Massachusetts and others have a unique history of our own, just given the both depth and breadth and the history. But I think it’s absolutely a useful tool. Every state amends their constitution differently, as we all know. Obviously, Ohio does it by referendum. You have to have a requisite number of petition signatures to get it on a ballot, and then, it’s simply 50 percent of the voters.

 

In Virginia, it has to be passed by the General Assembly, both the House and Senate. It never goes to the governor’s desk. There has to be an intervening election of the Virginia House of Delegates, and then, the newly constituted General Assembly has to vote on the exact same measure, the exact same wording, cannot change so much as a comma. And then, if it passes, then it has to go to be ratified by the voters that November. So the Virginia Constitution is more difficult to amend than, say, the Ohio Constitution, but obviously, we have an amendment process that probably some would say would be easier than amending the federal Constitution.

 

I view it as an absolute tool that should be used at the state appellate level. I don’t think you should outsource it to a federal interpretation. I think you should look at -- I think you should have your state judges be looking at both the history, tradition, and the original meaning of the text because our constitution is relatively new in Virginia. And so, I think we’re in a totally different place than maybe what other people think, but from my perspective, I view it as an absolute useful tool, and I’d like to see more judges using it in Virginia, applying it to our state constitution and state law.

 

Hon. Joan Larsen:  Go ahead. Professor Meyler.

 

Prof. Bernadette Meyler:  A thought about using originalism in the state context. So I think one of the reasons, potentially, for the move to original public meaning rather than original intent is the fact that we have no official notes of the federal convention that established the Constitution. We have Madison’s notes on the Convention, but it was not supposed to be recorded. So there’s a way in which there is a lack of contemporaneous information. We have to derive insights from a retrospective account or from very piecemeal accounts of various participants.

 

Of course, that’s not exactly the case with the Reconstitution Amendments. We can look at the Congressional record for those. But I think that that influences a bit the tone of originalism within the federal context, and I think that the fact that, in a lot of state contexts, we do have availability of deliberations about the constitution perhaps might lend itself towards having more argument about what the meaning of particular clauses of a state constitution might be based on the original intent rather than original public meaning.

 

Another consideration, though, I think does have to with the referendum process. And I know, coming from California, there are a number of fairly poorly drafted measures that have been put on the ballot, and it’s not entirely clear that the public explanations given for them were accurate or really reflected what the language actually says, and the drafting itself isn’t really very easy to pin down. So I think that that raises some complications. What exactly were voters voting on? And it raises some questions about how to kind of interpret a clause like that. And I think that that is somewhat different from the federal context where amendments go through a much more rigorous and much more lengthy process. And so, you would have a lot more material to go on in terms of determining what the original public meaning of a federal amendment was.

 

Hon. Elizabeth Wydra:  I think that’s a really great point about the availability of sources and clear sources for some of these analyses because if we don’t do a rigorous analysis, then it’s not really helpful to the judges. One area in which Constitutional Accountability Center has been able to participate in state courts, even with resource limitations, is many state constitutions incorporate by reference either the text explicitly or the values of the Fourteenth Amendment or the Declaration of Independence. And so, we’ve been able to file in state cases under state constitutions that include that reference because we have done the originalist work on those amendments and the principles and values of the Declaration of Independence.

 

Hon. Britt Grant:  You see in state constitutions, I think, interesting interpretive principles, and legal fiction sometimes start to take place. And one thing that you said reminded me. On Georgia constitutional amendments, the rule -- obviously, the amendment is typically longer than you can have on the ballot, and the rule that the Georgia Supreme Court put in place decades ago is the description on the ballot has to be enough to let the voter know which constitutional amendment they’re voting on under the legal fiction, that that will allow everyone to think back to the time when they personally and individually before the vote reviewed the text of the constitutional amendment in full to determine whether they wanted to vote for it. So it’s interesting.

 

In Georgia, too, there’s a rule that we -- if you -- if the Georgia Supreme Court had an interpretation of a provision and then the constitution was amended on a large-scale basis and that provision stayed, then the view is that the writers of that particular constitution were aware of this Georgia Supreme Court opinion and did not intend to change it in any way. So that’s locked that provision in, almost in perpetuity. And so, I think some things are certainly easier because we have more modern language, especially with the amendments, but some things are a little bit harder because of these interpretative conventions and some of the difficulties with the direct-to-the-people voting that we’ve discussed. So I think there are things that are easier, things that are harder, but I don’t think that it -- I don’t think it makes it more defensible to do it because I think it’s our duty as judges to interpret what the law is. And whether you’re at the state or the federal level, the Constitution, until it’s changed, is the law, and it’s our job to figure out really what that said and to give our best effort and use all the tools that we have.

 

Hon. Joan Larsen:  Okay. So we’ve talked about federal courts, and we’ve talked about state courts. And I don’t want to put too much burden on Professor Meyler, but I don’t think we should neglect the academy. And so, I have two broad questions. The first is probably directed specifically to Professor Meyler, which is she’s an actual legal historian, and so, one question I have is how does a historian approach originalism, the process of divining the public meaning of a particular constitutional provision. And does that differ from the way that courts and judges might do that, or is it the -- basically, the same project? So that’s my first question. And then, I guess, the second question would be are the law schools helping. Are they helping us to -- helping our -- the students to become practitioners who can deploy these tools?

 

Prof. Bernadette Meyler:  Great. Well, thank you so much for giving me that opportunity. So I would say that historians -- and I’m not a PhD in history. I’m a PhD in English, so I think of myself as doing work on kind of interpretation as well as history, although my work was in early modern England. And I think that one way in which historians approach originalism may be differently than lawyers or practicing lawyers does have to do with the resource question that came up earlier because, I think, we have more opportunity to delve in-depth into particular provisions over a longer period of time. We can do archival research that might take a very long time.

 

I had a project that dealt with the New Jersey decisions, pre-Constitution, of the various local courts in New Jersey. And it turned out that the archives and records in New Jersey couldn’t find the materials for a year, but then, that was fine because my project could take two years. That would not be okay on an appellate court level. So I think that that’s one way in which there is a big difference.

 

Another difference, I think, has to do with one of purpose. Right? So my colleague, Jonathan Knapp (sp), has recently written a book on originalism and history. We are -- he is bringing forward various ways in which historians would critique the practice of originalism for contemporary purposes and looks at a variety of different factors of why there might be a different objective in unearthing the history as opposed to applying it today. And one of the main issues really has to do with context, right, so that if we’re bringing to light some original meaning of a clause from 1789, then we may be taking it out of the context in which it was created. There may be -- according to Jonathan’s account, a written constitution meant something different in the 18th century than it does today. By deracinating the -- a provision from the general constitutional context, we’re misunderstanding it.

 

Now, I think that it’s important, nevertheless — and this is sort of my interpretive lens — to try to create some form of continuity between the moment of the Founding and today, that we can’t just take it as an alien document that was one thing then and is another thing now so that there is a need to engage in interpretation in the same way as we would try to interpret Shakespeare today and have a relevance for Shakespeare today. But I do think that because historians have more, say, time on their hands to engage in the effort that there’s going to be a survey of more sources. There’s going to be more openness to a less determinant meaning. Right? So I think that a lot of the clauses, if you look at a lot of the original materials from the colonies as well as from England, you see that there isn’t necessarily one determinant meaning that can be pinned down of the common law background of the Constitution. I think that’s not as much of a problem for historians as for judges who are trying to apply the Constitution in the present.

 

And on the front of our law schools helping, I think it’s an interesting question of what exactly the law school pedagogy is now. So teaching a first-year law school discussion seminar on histories of legal education and if you look from Langdell, who founded the American legal education system through the present, there is a remarkable continuity, actually, of what are the required first-year classes, and based on Langdell, we focus almost entirely on cases. Right? And that’s the -- case method was kind of sanctified in the late 19th century as the way that we approach teaching law students. And I think that some originalists, certainly my colleague Michael McConnell is among these, have kind of brought in more original sources in teaching the Constitution. I bring it in in my classes sometimes. And in other classes, we have deep dives into history.

 

There’s more interdisciplinarity, so I think that more historians are teaching in law schools by one count of one my colleagues. At a meeting recently, he thought we have nine legal historians on the faculty. So there’s an effort to kind of bring in more of those perspectives. But I think that actually, in the last 150 years, law schools have changed less than we might think and that the case method is still the dominant method and that that means that precedent rather than original meaning tends to be what’s focused on.

 

Hon. Jason Miyares:  I think there is an enormous crisis in higher ed in general, but I also think, in law school, you have a suffocating level of political correctness and progressive orthodoxy that has a view of originalism as immoral, and therefore, they won’t teach it, or if they do teach it, they play lip service. And think of the utter shock for so many of these law school graduates that suddenly are encountering judges that have that as part of the expectations. And I think you have a real crisis right now. You have elite law schools, in particular, that are preaching diversity in everything but thought. There is simply almost virtually no ideological diversity whatsoever. And I think that is creating a real, real problem right now.

 

We have a robust intern program in the AG’s office, so we get students from both Ivy League schools and state schools in Virginia. And I will tell you the conversations that I’ve had with so many of those young students who are incredibly bright that are interning in our office -- the only word I would use to describe how they are seeing America, in general, is disdain, utter disdain. And they are really struggling right now with self-censure ship. The leave of fear that these students have on these campuses is palpable, and it is not conservative professors. And so, I -- it is one of the most troubling, long-term trends that I see right now for this country, in general, when over 50 percent of those ages 18 to 24 say, for example, that Hamas is justified in slaughtering innocent men, women, and children, and less than a third say they have a love of America. I don’t think that happened by chance, and I think, unfortunately, what you’re seeing in our undergrad campuses, I would multiple it even higher in so many of our elite schools. So I think they are not equipping students to come out properly trained in how to look at originalism because, like I said, they view originalism as immoral. And I think it is a real troubling long-term trend in higher ed right now.

 

Hon. Paul D. Clement:  And just one thought on this. Look, I love legal historians as much as the next person, but I don’t think the solution to this problem is adding legal historians to law school faculties. And part of it is, I think, we’re -- by the time we start focusing on originalism and the work of legal historians — and again, I don’t mean to denigrate that; that’s -- there’s a reason that’s always been a discipline, even back in the ‘70s, when the Supreme Court didn’t give a fig about originalism — but it really is a little bit separate. And I think that the way that -- the best thing a historian could do is -- could unearth some new thing that nobody else knew was not part of the original public meaning, or a lot of what of legal historians spend their time doing is coming up with a revisionist history so everything we thought we knew about something gets turned on its head. And I would imagine there’s a few people in academia whose whole project in legal historian -- in legal history is really to defeat originalism and show that you can come up with a counter-history to everything. And that’s why I have to get back to the project, and I think Judge Ho had it exactly right when he said the project is text informed by history and tradition.

 

And so, I think we may be overmystifying originalism to the point where, oh, no mere lawyer can do this and you need a legal historian to do this. And if that’s the case, then I kind of think that either the Supreme Court took a wrong turn or we all took a wrong turn by going getting our Juris Doctors instead of our PhDs in history. But I don’t think either the Court or this group has taken a wrong turn. I think we just got to get back -- that, yes, history and tradition is important to inform the text. Part of the reason that Justice Scalia was on about this project was to constrain the discretion of judges and to give them clear targets to shoot at that are consistent with life tenure and judicial modesty. And part of the reason that you want to have more focus on text, history, and tradition is in lieu of an intermediate scrutiny rubric where any judge can come up with any result they possibly want.

 

So I just think it’s important to kind of demystify this a little bit, and the -- in a sense, the question is not, “Let’s get to the absolute best historical account of some incident,” but it’s really just -- it’s a little less daunting. It’s just, “Okay, there are these words. These words are our Constitution. They were ratified at a particular time.” If there’s a particular ambiguity, the history can help. If there is an unbroken tradition that goes back to the Framing and somebody’s telling you that, “That’s actually been unconstitutional since 1789, just nobody but me was smart enough to figure it out until now,” those are all things you should be skeptical about. But it's not that hard a project, and at the end of the day, it all gets back to the text anyways.

 

Hon. Elizabeth Wydra:  And I think, just to follow up on what Paul said -- maybe I’m just agreeing with him because I only have a JD and not a PhD in history as well, but I think it’s also just what we’re teaching about the Constitution. What I do in my daily work is very focused on the Reconstruction Amendments, but I think so many folks, when they think about the Constitution or when they think about originalism, they think of the Constitution as it existed in the 18th century. And even law students, I think, do not have a -- to the extent they even get an education on the 18th century founding of the United States Constitution, they have even less of an education on what many have called the Second Founding that happened after the Civil War. And that doesn’t have to be ideological.

 

Honestly, teaching the Constitution should be something that is cross-ideologically embraced. You can critique it, of course. You can embrace it. But I think, certainly, knowing it is powerful as a lawyer, as an American. And I think that it’s also very interesting to look at the way in which the amended Constitution really writes across the face of our national charter our story of national progress in addition to constitutional progress. And so, I think including that in more law school constitutional law classes would be incredibly useful.

 

And then, of course, to second Paul’s point about it isn’t this mysterious PhD practice -- but I think it’s also interesting to students to see the ways in which you apply what can seem like distant history to very current debates. And I know when I speak with students about how a Fourteenth Amendment originalist argument relates to reproductive justice, they find that very interesting and, similarly, with other issues. So I would love to see more Constitution education on that front in law schools, and it wasn’t really there when I was at Yale, so Yale, call me.

 

Hon. Joan Larsen:  All right. So I thought we might take some questions from the audience, if people have questions. I’ve now said, “Questions,” twice, and I’m going to say it again. It should be a question. That ends with a question mark. There are microphones. If you can make your way to the microphone, then we can hear you. And also, one more thing, tell us who you are.

 

Coach Weinhaus: Hi. Coach Weinhaus for Yeshiva University, or UCLA, and Abusive Discretion. The panel did an excellent job, exploring sources of methods of originalism, and Mr. Clement evoked judicial humility. And I’m curious how do we, as a society, identify judges who will be able to stay true to originalism and then, keep choosing, I guess, to limit their own power through other forms of discretion?

 

Hon. Joan Larsen:  Well, I think the confirmation process is designed to do that. The appointment and confirmation process is designed to do that. I think that when presidents are selecting judges, they are certainly entitled to ask about methodology, not about approaches to particular questions but certainly about what the judges’ political -- not political philosophy -- judicial philosophy, not political leanings, are. So I think that’s the process we have in place for dealing with that question.

 

Hon. Jason Miyares:  I would say this -- your question’s about -- where society’s impact on this. I think it’s going to be very, very difficult for, from a larger perspective of where society is -- I was reading a social scientist who’s talking about the decoupling of purpose in society, and he was not a conservative. He made this observation. I thought this was fascinating. He said, “We are the first society in human history, in all of human history, to reject the wisdom of those that have come before us.” It is a complete phenomenon in Western Europe and North America.

 

And if you go to Africa, if you go to Asia, if you go to Latin America, they have reverence for those that have come before and their wisdom. And it is only a recent phenomenon in the last several decades, the last 30 or 40 years, in which Western society has made the determination in a lot of, I would say, elite institutions that we’re going to simply reject those that have come before us because they have nothing to offer us. I think that permeates in almost everything that you see in a larger society, so I think that it is -- it’s -- our originalist judges, given what I’ve just described is having in academia -- I think it will get probably more difficult moving forward. Even though you have seen, I think, originalism become much more broadly accepted in a variety of legal circles, I also think it is also going to be more challenging.

 

Hon. Joan Larsen:  All right. It’s hard to see over here, but we have a question -- oh, it’s Roger Pilon.

 

Roger Pilon:  Yes. Yes, it is, from the Cato Institute. Thank you, Judge Larsen. My question is whether Judge Ho’s clerks may have been right when they asked whether even appellate judges should take their oath more seriously to the Constitution rather than to precedent. And I give you the important case of 1995, U.S. v. Lopez, where old Judge Harwood [sic], on the Fifth Circuit, entertained the argument from a young public defender in that case who had the effrontery to say that the Commerce Clause does not authorize Congress to enact the Gun-free School Zones Act. That power belongs to the state of Texas. But for the fact that Garwood said, “He’s right,” that case probably would not have made it to the Supreme Court. But in so doing, Harwood [sic], who, of course, was around in 1937, said, “Maybe the Court got it wrong on the Commerce Clause in 1937.”

 

Hon. James C. Ho:  So if the idea is that Judge Garwood’s opinion in -- at the Fifth Circuit level in Lopez was a defiance of Supreme Court precedent, I’ll be candid. I’m interested in that. I’m going to go look at that. I was not aware that it was literally defying Supreme Court precedent. That’s inconsistent with all the cases we talked about in terms of Agostini and Rodriguez. The Supreme Court has told us repeatedly not to anticipate.

 

Roger Pilon:  Well, professors had to rewrite their casebooks after the Supreme Court upheld Harwood [sic] --

 

Hon. James C. Ho:  Well, sure, in the sense that the Commerce Clause had not been used to impose limits on federal power until Lopez and Morrison and what have you. But that’s different from saying that Lopez is literally irreconcilable with cases like Wickard, and if I recall, the Supreme Court itself reconciled those opinions. So like I said, I’m always open-minded, always open to being proven wrong. If there is an argument that Lopez was correctly decided as an originalist matter but completely insubordinate, from a Supreme Court precedent matter, that’s news to me, and I’m -- certainly would be interested in learning more about that.

 

Hon. Joan Larsen:  All right. We’ll go over here to the left.

 

Hon. John Curry:  Okay. Thank you. Judge John Curry from Chicago. Judge Ho, you pointed out that sometimes there’re somewhat politically motivated textualism arguments, and they may be rooted in some community or some political object. Clearly, in the progressive field, let me sort of sketch out what we see. The academy will generate some sort of progressive perspective, and that may mean changing language, using language in a different way. Then, the general media picks it up, and then, the politicians pick it up, so we have a new meaning, which is really rooted in the left or progressive point of view. And then, that’s used as a fulcrum for arguing a case, saying, well, this is what the text in this law or the Constitution says, and it really means this.

 

And I think the example you gave that, well, that could be shown to be originating in a community as opposed to really what the text is about, the original public meaning of the text. Wouldn’t you think it would be a good idea when this occurs to -- for a judge or an advocate in a brief to actually point out, “This is the root. They’re arguing this is what this means, but this is where it rose from. It started out at the University of California, Berkeley, and then, The New York Times picked it up, and then, certain political operatives have generated this. And that’s not truly the meaning that was in this statute.” I wonder if you think that approach would be useful. I think it would be useful to see that read so you get out the fact that this is not really an accepted public meaning but a politically motivated meaning.

 

Hon. James C. Ho:  Yeah. I would just say I think I sort of noted earlier I think we all agree that we’re always interested in more information. I think your question, if I understand it, sort of reminds me of what Justice Thomas has often said, which is -- I forget him metaphor about adding cars to a train but then asking the question, “Are we even going in the right direction?” So certainly, let me just use this as an opportunity to kind of comment on what Elizabeth said earlier, which is — and I agree with it — which is originalism properly done isn’t conservative, isn’t liberal. It’s just lawyering. And if that’s the goal, I do take it -- I do take some solace -- we were talking about the selection process in the first question. We now have a consensus at least in terms of what people say, which is the judicial function is, in fact, an originalist function.

 

Swearing an oath to follow the Constitution means you will actually follow the written Constitution. At this point, I’m not aware of anybody who openly defies that. How good we are -- each and every one of us is actually doing that and doing it faithfully and following Justice Scalia’s principle that a bad judge was -- a judge who always likes the results of their decisions is a bad judge. I think that’s a pretty good principle to go by, but originalism properly done is steadfastly neither progressive, conservative, liberal, whatever terminology you want to use.

 

Hon. John Curry:  Thank you.

 

Hon. Paul D. Clement:  Yeah. And the only thing I’d add is just, again, getting back to, I guess, what is my theme, which is originalism isn’t something separate. It’s just one mode of trying to get the text right. And so, the principles that you’re talking about in terms of dealing with history aren’t really any different from the principles that I think you’re supposed to use when you’re interpreting statutory text, and you look at a bunch of dictionaries, and there’s one outlying dictionary, and you try to figure out, well, what’s going on with that one outlying dictionary. And Justice Scalia wrote an opinion for the Court in the MCI against AT&T case that’s had a second life as part of the major questions doctrine. But at the time, it was famous because it was the first time that Justice Scalia just ripped a new one into Webster’s Third.

 

But what generated that scorn for Webster’s Third is he was looking at a whole bunch of definitions of the word, “modify,” and then, he sees one that just is completely out of whack with the others. And then, he went back and realized that, okay, Webster’s, when it put out its third dictionary, decided to stop trying to figure out what words actually mean and just tried to essentially assemble widespread misuse of words and make that one of the definitions. And so, based on that, he threw out one definition of modify that didn’t fit in with any of the others.

 

And I think, when you’re looking at history, if at a certain point -- it seemed like everybody understood that a term meant a certain thing, historically, but then, all of a sudden, a revisionist school comes along -- you have to be cognizant of that but not because you have to be a great historian, just because you have to approach the job of interpreting the text the same basic way when it comes to historical sources as with respect to just the basic text and how you’d interpret a statute.

 

Hon. Joan Larsen:  Okay. Sorry. The light is in my eyes, so I can’t really see you, but you can speak up and tell us who you are and what your question is.

 

Bryan Bishop (sp):  Yeah. Hi. Right. I’m here. I’m Bryan Bishop from the Stephen Hopkins Center for Civil Rights in Rhode Island. And I’m wondering if you view dueling traditions, which perhaps are underappreciated in comparing the Roe and Dobbs decisions because people kind of go to the substance, and the penumbra is first. I’m wondering if dueling traditions are more a distraction from the originalist project or perhaps an invitation to broader subscription to the project.

 

Hon. Joan Larsen:  I’m not sure I quite understand the question. Dueling --

 

Bryan Bishop:  What I’m suggesting is that if we’re debating traditions and to an extent if that comes in in looking at our legal traditions, whether that might actually interest people who think that originalism has a conservative or a right-leaning valence. They might realize that tradition doesn’t necessarily always cut that way, that maybe we should play on the originalist field and try and tease these out. Or is that rather simply an excuse to overthrow originalism?

 

Hon. Elizabeth Wydra:  So I think it’s a really interesting question, and certainly, part of what I do every day is try to convince my fellow progressives that we can and should play on the originalist field, and we can often win on that field as a substantive principled matter but also, frankly, as a strategic matter, given the makeup of the Supreme Court and many of our appellate courts across the country. One thing I think that -- you mentioned Roe and Dobbs and dueling traditions, and I think that that case and the Fourteenth Amendment cases generally are really interesting because the Fourteenth Amendment was — not to use tech bro slang — but was intended to be a constitutional disruptor. The folks who were writing the Fourteenth Amendment wrote it and thought it would be a constitutional disruptor to many different aspects of our constitutional order, that it -- they intended to turn on its head the relationship between state and federal citizenship. So instead of having state citizenship primary, they thought that this, especially with birthright citizenship provisions, etc., federal citizenship would become more important in many key ways. Similarly, disrupting a tradition of discrimination and opposition, the most obvious of which is with respect to the horrible institution of slavery, but they also considered other ways in which people had been suffering conditions of unfreedom.

 

The Thirteenth Amendment guaranteed freedom in the United States, and the Fourteenth Amendment, in many ways, answered the question, “What does it mean to be free?” And in doing so, the drafters of the Fourteenth Amendment intended to disrupt many discriminatory traditions. So when you’re going to engage in a text and history analysis of a Fourteenth Amendment provision, to me, it’s important to take into account that your traditions you look at might in way be different because the text was put into the Constitution in order to disrupt many of these traditions. So that’s something that I think is -- we talk about a lot, and I’d like to see more people talk about it. So thank you.

 

Prof. Bernadette Meyler:  Yeah. I just want to add that I think that that’s true actually even of the original Constitution. You can look at the Suspension Clause and wonder how much of it is about enshrining what came before and how about deviating from that. But I think the other point I would make is that it’s not, say, just going to Roe and Dobbs but even going back to what Judge Larsen mentioned before, the Crawford case. I think a lot of the Sixth Amendment originalism decisions have been embraced by progressives as well as some conservatives. And so, there are plenty of ways to, I think, use originalism in different political valences or for different political ends as well.

 

Hon. Britt Grant:  If you look at, for instance, the Heller decision, both opinions in that case were deeply originalist, and one, of course, got more votes than the other. But I think that’s a really good example of “both sides of a question” digging into the original sources and trying to use those to discern the meaning.

 

Hon. Joan Larsen:  All right. We’ll take a question over here on my left.

 

Art Macomber:  Thank you. Art Macomber, Coeur d’Alene, Idaho. My question is really for the judges, and I’m wondering about the analytical framework. I think Mr. Clement said, okay, so you state with the text, and then, you have history and tradition. So the final two are kind of a swamp, and I see that, for the Founders, they were looking backwards. And I think if you don’t start with Magna Carta and move forward, you don’t really get an understanding of how -- we look backwards and see the Constitution. They were setting it up and looking forwards, given what happened in the past.

 

And my question is this I know you have subject-matter considerations, the First Amendment obviously different than the Third Amendment. Right? History and tradition on the Third Amendment is pretty well capped. But how do you, as a judge, approach this issue? What is the analytical framework for the history and tradition swamp that you engage in — step one, step two, step three? And if you could talk a little bit about that, it would be very helpful. Thank you.

 

Hon. Britt Grant:  I think it’s interesting, again, as a circuit judge, certainly, we have occasions to look at history and tradition, but again, I think, less so than the Supreme Court. So I think, for me, sometimes it comes up in what we might think of as smaller issues. I mentioned that a little bit before, issues that are not on the front pages of the newspaper. And I think that’s where you can look back and see earlier statutes. How did -- maybe even if you’re looking at habeas corpus, right, Magna Carta, and how did it go from there? What was the original understanding of habeas corpus at the Founding? How did that impact its development as we went through the 19th and 20th centuries?

 

Even those questions, I think, can sometimes inform, say, an EDPA issue that we’re dealing with today. And so, I think, that’s not an issue where you’ll necessarily have a brief that starts with Magna Carta, but I think, once you start to dig into the text and look at things that happen with statutes and try to understand what framework, even 20 and 30 years ago, people were working within. I think that you try to look at those questions at every step of the line. So to me, originalism doesn’t start and stop around the Founding era. It’s a developing process. When you look at the developing understandings as we have statutes that have gone through their own processes and their own development, I think it really help you understand, as a judge, what that text means when you look at the text that came before it and the practices that came before it.

 

Hon. James C. Ho:  I might just lightly try to merge the premise of your question with what Elizabeth said earlier. What I said earlier was I think there was at least some sense that one way to approach this is text. That’s what we’re doing. But it can be, can be, informed by history and tradition. But as Elizabeth points out, there are times when the drafters, whether it’s a constitutional amendment or a statute or what have you, there are times when the text is pathbreaking, right, when the whole point of a text is to go in a very different direction.

 

Now, obviously, you need to figure out when those situations exist and when they don’t, and we have certain kinds of interpretation. The one against lightly assuming variations of common law would be one example where we don’t assume a pathbreaking moment, but when the text does break a path, suggest a complete departure from the past, then, history, tradition obviously, presumably, could play a different role in that situation. So it’s just a matter of figuring out which situation you’re presented with.

 

Hon. Joan Larsen:  All right.

 

Will Trachman:  Hi. Will Trachman from Mountain States Legal Foundation.

 

Hon. Joan Larsen:  Yeah.

 

Will Trachman:  We don’t write on a clean slate very much, not all of us are practicing before the Supreme Court. Is there an opinion on whether litigators can use originalism when there’s already a balancing test or a tier of scrutiny at play? So to say, well, this is not a compelling interest that would have been compelling to the Framers or in the original public meaning, or this wouldn’t have been narrowly tailored to the Framers. And separately, we have a case right now, representing a student who was prohibited from wearing the Gadsden flag as a patch on his backpack, and we’re arguing under the Tinker standard. So could we say, “Well, obviously, it wouldn’t have been a substantial disruption in the 1860s to wear a Gadsden flag on your backpack?” How does originalism interact with current balancing standards?

 

Hon. Joan Larsen:  Yeah. That’s a great question. First of all, I don’t think you’re going to get any of the judges on this panel to opine on your case. So we’re not going to do that. But I think, as a general matter -- look, if the Supreme Court has said, “Here’s a balancing test, and you have to apply the balancing test,” the judges, for the most part, are going to apply the balancing test. And if there are cases in the circuit or coming from the Supreme Court that cash out what that balancing test looks like, I think the judges are going to be inclined to say, “Well, this is how we’ve applied this before. The cases tell us that this factor on this factor. We look at these things, and your case looks exactly like that one or looks different than that one.” I think that’s what most judges are going to do as a first line.

 

That being said, if you can make a compelling case either that there’s an alternative to the balancing test that we ought to be taking very seriously, I don’t think any of us are going to not apply the balancing test we were told to apply. But it might provoke that concurrence that says, “Hey, you should replace that with something else.” And also, I think it’s an interesting proposition to say, “We should think about how this would have balanced out at the Founding.” If you’ve got that case that you can make, I think I share Judge Ho’s perspective. Bring us the information, and we’ll see how it cashes out. Again, I don’t know about your particular case so not commenting.

 

Hon. James C. Ho:  Yeah. Look, if you think you have an originalist argument, I would make it. Absolutely. I’m reminded of what Justice Scalia often said. Justice Scalia famously was pretty categorical, if not actually categorical, about legislative history, and yet, he would repeatedly tell lawyer audiences, “If you have a legislative history argument, you absolutely should make it.” He may not take it. He may not agree with it. But some of his colleagues might. Some of the judges on other courts might.

 

And so, I would view things from a practitioner’s standpoint in that lens. If you have -- presumably, you think you have precedent on your side. You should cite the precedent. But I would always be prepared -- if nothing else, at oral argument, we also train, whether it’s me or me mooting other people in my office, have a backup argument. Have multiple arguments. You should win based on a precedent. You should win based on originalist analysis. You should win based on, frankly, policy arguments because some judges may pay attention to that.

 

Just frankly, to me — and this maybe goes back to the General’s comment about the state of legal education — is -- it just strikes me as woefully incompetent, educational malpractice, for law schools not to teach every tool in the tool book, if, in fact, your avowed object is to train legal professionals.  The problem—I think General is absolute right—is law schools aren’t doing that anymore, at least not -- maybe not -- categorical, many law schools -- certain law schools may be focused more on indoctrinating and sort of just wanting to inflict a certain sense of political change rather than doing what I thought they were doing, which is training future lawyers. And so, future -- lawyers of all kinds, including future lawyers, need to have every tool in the toolbox so that you can deploy for your clients. I would have thought that that would be uncontroversial, but apparently, that’s the controversy of the day.

 

Hon. Britt Grant:  I’ll say I think you should absolutely make originalist arguments, if you have them. And not only might it inspire concurrence, but it could inspire an “and also” in a majority opinion. There’s important scholarship from, say, Professor McConnell on how Brown v. Board wasn’t written as an originalist decision, but it certainly is very consistent with the original meaning. And so, I think all judges want to make their opinions as persuasive and rock solid as possible. And if there’re originalist arguments that point in the same direction, especially as whatever the result is of the balancing test that we’ve been instructed to use, then I think a lot of judges would be really excited to include those arguments in their opinions to fully bolster the decision.

 

Hon. Joan Larsen:  Professor Meyler.

 

Prof. Bernadette Meyler:  Yeah. I think this is a very interesting question because a lot of recent Supreme Court cases have kind of called into question some of the tiers of scrutiny or other tests that have traditionally been applied since, say, the 1940s. And so, I think, one strategy might be to say, “Well, in Bruen, there seems to be a rejection of those kinds of tests, so maybe there’s some uncertainty about whether the Supreme Court is actually endorsing tests along these lines in other cases.” But then, also, I think there’s a counterargument about to -- maybe to the Supreme Court about rejecting these kinds of tests because I think, as Judge Ho had mentioned, there may be some evidence of the Founding about some forms of balancing. Right? If you think about Justice Marshall using a question about is it necessary or absolutely necessary -- what is the level of review.

 

And then, secondly, there is a question about how much originalism really also imports a particular method of judging. Does it include judicial practices from the Founding or not? And then, I think, third, there’s also a practical question about implementing doctrine in the lower courts, whether tests of -- balancing tests or other things are just more feasible for lower courts to implement as a routine matter. So I think there are some interesting arguments on either side.

 

Hon. Joan Larsen:  All right. Let’s move here to the -- my left.

 

Violet Grayson:  To what degree -- I’m Violet Grayson. I’m a practicing lawyer. And to what degree do you experience tension between originalism and textualism?

 

Hon. Joan Larsen:  I’m sorry. There was just noise in the hallway. I couldn’t quite hear it.

 

Violet Grayson:  I said, “To what degree do you experience tension between originalism and textualism?”

 

Hon. Joan Larsen:  Oh.

 

Hon. James C. Ho:  I’ll just take a quick stab.

 

Hon. Joan Larsen:  Yeah. Go ahead.

 

Hon. James C. Ho:  I’ve never seen any tension between the two concepts. Obviously, they’re two different words that are used. Typically, textualism is associated with statutes. Originalism is associated with the Constitution. But I don’t see them in tension. The way I have always thought about it, and this could be completely wrong, but just how I think about it is we talk textualism when it comes to statutes because statutes typically -- just read the text, and you can kind of figure out there are more words. There’s more detail. And so, you can kind of begin and end with text.

 

Whereas, constitutions, and certainly the federal Constitution, there are times when you have few words, and you need more to decide a particular dispute that’s in front of you. And so, you look behind the text to figure out, well, what do we mean. What did the Founders mean when they drafted these terms? But to me, it’s the same conversation we’ve been having earlier. We’re looking at text. If you need more than the text, you might need to be informed by things behind the text: history, tradition, dictionaries, what have you. But I think it’s all the same project. At least, that’s how I’ve always conceived of it.

 

Hon. Jason Miyares:  Yeah. I would -- kind of a different perspective. Prior to my service as Attorney General, I served in the General Assembly in the Courts of Justice Committee, and we used to always say, “We don’t vote on ideas. We vote on bills.” And it was all -- exactly to Judge Ho’s point, looking at how we were going to be changing the code, and the one thing we always stressed was there was going to be a judge, whether they’re in Fairfax or Galax, that is going to be trying to interpret how we have amended and changed the code of Virginia. And they are likely not going to have the benefit of watching what the meaning or the intent or the testimony of the patron of the legislation that’s seeking to change whatever section it is, 18.2, whatever section of the Virginia code. So I thought it was -- we always had the attitude that it was so critically important to make sure the text, the actual language -- and we argued over single dot and comma, as lawyers often do, precisely because we had the idea that a judge is going to have to read the plain language, and it needs to be crystal clear. And oftentimes, bad bills make bad law and then bad precedent.

 

Hon. Elizabeth Wydra:  And I would just add I think that’s a really interesting question because the idea with textualism is that you’re sticking to the text. Now, of course, sometimes, the text is -- needs greater context, or you can understand it better if you look to these other sources. And I normally think that that’s a great idea. One of the places where I do feel like there’s tension, however, sometimes, is when, through the originalist project, you’re using history or tradition to subvert the text or to make the words mean something perhaps other than you might think they mean based on the plain text of the constitutional provision, for example. And so, when that happens, I’m not saying it’s always wrong, but it certainly makes me pay a little bit more attention to what is actually happening in that instance. I think of this particularly with respect to the Fourteenth Amendment.

 

Hon. Joan Larsen:  All right.

 

Aaron Watt:  Good morning. Thank you to all the panelists for being here. My name’s Aaron Watt. I’m a 3L at Scalia Law School. I have a question about the originalist project. Someone else asked about sort of the order of operations, about starting with text. And I think back on my federal courts class about sovereign immunity. I think it’s a good example of something where it seems like we start from history and tradition, and we say we really didn’t mean to derogate from that.

 

I wonder if there are other places where it’s appropriate to start from the opposite direction as well. Are there rights that were so taken for granted up through English common law into the United States that it would be more appropriate to look to see what the foundational rights and to see if the law has derogated that? What are your thoughts?

 

Hon. Joan Larsen:  Is that a question about common good constitutionalism?

 

Aaron Watt:  I don’t think it is. Actually, I don’t support that perspective. But just from an originalist perspective, if what the people thought they were doing was incorporating rights, privileges, or immunities or whatever it was that they had taken for granted that existed, if that’s what the original Founders thought they were doing, is it appropriate to start from that place when evaluating just particular rights at least?

 

Hon. Joan Larsen:  So maybe that’s a question about the Ninth Amendment. Maybe I’m not understanding the question. If we could take a particular constitutional provision, so the Confrontation Clause or the right to jury, as an example, so if we took the right to jury, how does that -- how does your question cash out there? Or are you asking, “Are there rights that the Founding generation would have understood to be a part of the set of natural rights,” for example, that they wanted -- that when they talked about the other rights retained by the people, that’s what they meant to enshrine? Those seem like two different questions, and I’m not quite sure which question you’re asking.

 

Aaron Watt:  Sure. And it’s hard for me to come up with a starting point in the text because, of course, then, I would have started from the text. This is part of why I wanted to --

 

[CROSSTALK]

 

Hon. Joan Larsen:  And you didn’t -- the whole premise of your question is not to start with the text. Yeah.

 

Aaron Watt:  And it’s at least why I bring up sovereign immunity as an example. And so, I think about things like parental rights. Is that something that would have been taken for granted as a right? Where does that right originate from if it doesn’t originate from the text? And so, maybe my question isn’t clear enough quite to respond to, but I wanted to give you what I’ve got on it anyway.

 

Hon. James C. Ho:  I’m going to go with the fact that you’ve sort of hit sovereignty immunity twice, and I’m going to take that to be the premise of your question. And I just lightly disagree or at least offer a different take on your premise, which is to the extent you’re saying — and this is going to get nerdy really quickly — to the extent that your point is the Eleventh Amendment obviously talks about sovereign immunity in some ways but not in the broader way that we have in various settings -- diversity, which is a federal question, etc., etc. I don’t see that as anti-textual. I see that as the Eleventh Amendment reflecting drafters thinking that the Supreme Court got cases wrong. I think it’s Chisholm -- or I forget this area, now. It’s been a while since Fed Courts for me.

 

But it’s really not the text that’s doing the work, at least the text of the Eleventh Amendment. It’s the text of Article III, and the drafters, rightly or wrongly, thought, “You know what? Supreme Court, you got it wrong, so we’re going to lightly -- we’re going to overturn your case through the text of the Eleventh Amendment, but obviously, we’re restoring a broader conception of state sovereign immunity that we thought was already in Article III or perhaps the Tenth Amendment.” I think multiple Supreme Court justices have said it’s wrong to use the term, “Eleventh Amendment immunity,” other than in those cases where it’s actually about the Eleventh Amendment. It’s state sovereign immunity that preexists the Constitution and wasn’t overturned by Article III. So I might disagree with your premise and, therefore, stick with the text.

 

Hon. Elizabeth Wydra:  I think it’s hard to think of a time when you wouldn’t at least start with the text. Privileges or immunities, for example, in the Fourteenth Amendment, is a broad term, but if you look at the original public meaning, there was a very clear understanding -- at least, the general concepts that were included. Now, whether it’s the Corfield v. Coryell list of rights, whether it was the first ten amendments plus -- you look at the debates, and you can see that the -- you mentioned parental rights -- that the right to form a family was included in those ideas of privileges or immunities. So I think it would always be right to start with the text because there’s a reason why they used privileges or immunities as opposed to some other term of relating to rights or liberties.

 

Prof. Bernadette Meyler:  I think it’s an interesting question because even if you look at Article III, there isn’t an explicit provision for state sovereign immunity in Article III. Right? So you’re implying something into the text, and I think that I would go back to Judge Larsen’s comment about the Ninth Amendment, or even the Tenth Amendment, that there are these provisions of the Constitution that are fairly broadly phrased and that do imply invocation of some forms of structure or rights that were preceding the Constitution. And so, figuring out which provisions are against that backdrop and which aren’t is one of the, I think, tasks of interpretation, even if you’re starting with the text.

 

Hon. Joan Larsen:  All right. We have time for just a couple more questions, so let’s take one over here on the left.

 

Clarke Forsythe:  Clarke Forsythe, Americans United for Life. If the focus of originalism is the ratified text, which, if any, outside voices are relevant to the ratified text?

 

Hon. Britt Grant:  I think it depends on what you’re using them for. I’ll be interested to hear from our scholars to my left, but I think voices are not -- I don’t think that any voices are appropriately used to override the text. But to the extent that we can use different voices to better understand the text, then I think a lot of the comments from, really, all the panelists today have indicated that we can take those into account. I think Paul Clement had a lot of arguments about whether we should allow private voices to override public understandings, and I think that those questions are interesting. But I think, as long as we’re using them for the right reasons and placing them in the proper context, I think you can certainly consider and then put within the overall framework -- we’re happy to hear, I think, about a lot of voices and then give them whatever meaning they have, in terms of helping us understand the text, but not override the text.

 

Prof. Bernadette Meyler:  Yeah. I would say that, in my view, looking at the participants and debates, right, so a lot of these kinds of rights or provisions were subject of different debates or might have been subject to different laws in different colonies. So looking at the structure of those debates, I think, is particularly informative in understanding what the text means.

 

Hon. Elizabeth Wydra:  Yeah. When you’re looking at an original public meaning analysis, which is the dominant form of originalist analysis after you look at the text, then, of course, you are going to include voices other than just those who were the ratifiers because they are included in the public. But yes, obviously, it implies some level of publicity. So Paul’s private diary, I don’t think, would count unless excerpts of that diary were published à la Federalist Papers and distributed to the public. But we look at newspapers. We look at convention debates. And certainly, when I think about my particular area of expertise in the Reconstruction Amendments, there were a lot of these public conventions and debates. And so, there is really a rich history to be looked at there. And I think that as we get even more scholarship and have more sources, public sources, then that will be a really interesting rich debate.

 

Hon. Joan Larsen:  Okay. We are very close to being out of time, but there are only two speakers at the mic, and I just -- I have such a benevolent heart. So I can’t just cut one of you off, so it’s the lightning round, quick question, and we’ll give you each a quick answer. And then, we’ll adjourn.

 

Gabrielle:  Well, thank you. I really appreciate the love and benevolence. My name is Gabrielle. I’m a third-year law student from University of Miami. And all I wanted to ask touches upon what Miyares has said about the hatred of originalism in law school, and he’s absolutely right. And I ask this question because I think it extends from this very formulaic argument that they produce that because the Founders were wrong — at least in so far as who was afforded certain substantive rights — or that history was wrong for a period of time, that they must be wrong about the actual interpretation or meaning or scope of the actual substantive rights themselves, so we should just do away with anything they thought of entirely.

 

And of course, that ignores the beautiful design of our Founding document that, when we do extend rights to all human beings, we don’t have to do away with the whole document, and we have the most successful governance experiment of all time. So my question is how do we respond to this vitriol from the other side? Just because we have historical mistakes, it doesn’t mean that we should dispose of this.

 

Hon. Jason Miyares:  Well, this is what I would say. This idea that the greatest critique of originalism is we got to ignore the dead hand of the past, and as I had one intern tell me that the general sentiment from some of their law professors is why would we want to study dead white men? And I think it takes away the richness of the basic of the Founding where if you look at James Madison, he was obsessed with two things: both anarchy and monarchy. And so, how do we frame a government in such a way that can respect both the rights of the individual and the face and the passions of the mob but also make sure that part -- that power is devolved. And I think the other thing it takes away, which I think law students often are not taught, is just how obsessed Madison was going to the Constitution Convention on why democracy fails. He spent so much time looking at both Ancient Greece and Ancient Rome on what caused them to fall, not just forming the government. How do we create a system of governing that absolutely can self-perpetuate itself? And I thought that is greatly missing.

 

And it is the first written constitution in all of human history that actually limits what government can do and empowers the individual. It’s never happened in all of recorded history. And the other thing that makes me is a sense that we got to ignore a dead white man, and it’s not quite applicable, but my -- people ask me, “What kind of name is Miyares?” I say, “Well, it’s southern.” My family fled Cuba, and my uncle, Angel Miyares, when he was arrested in Cuba and he went through the humiliation of a mock execution, one of the things that he appealed to was, “You have no right to do this because I have certain unalienable rights of life and liberty.” In other words, he was appealing towards something that was a university principle laid, of course, by our Founders. Obviously, the Declaration of Independence is kind of the birth certificate later on for the Bills of Rights. So I think it is a passionate need to expose the fact that these university principles that have been appealed to to man’s better nature in every gulag, whether they’re in North Korea or Cuba or in Russia, and the universality of it that applies to all races and creeds.

 

And the point that I make is -- and when Dr. King made his speech at the Lincoln Memorial, he didn’t appeal to Rousseau. Right? He said he was there to collect a promissory note made to every single American — past, present, and future — of life, liberty, and the pursuit of happiness. He didn’t appeal to Confucius. He didn’t appeal to Rousseau. And if you look at simply -- when Dr. King taught at Morehouse College, do you know what he taught? Philosophy. Do you know what he assigned to his students? The greatest thinkers of Western Civilization. Look at the curriculum that Dr. King picked out and taught in his philosophy class at Morehouse College, and I think you should point to that, that there is a universal principle here that is oftentimes ignored and to tragic consequences on our college campuses, tragic consequences.

 

Gabrielle:  Thank you.

 

[Applause]

 

Hon. Joan Larsen:  Okay. So I hope you have a good one to take us out on.

 

Connor:  To quickly piggyback off of that question as well, my name’s Connor. I’m the President of the Student Chapter at William and Mary Law. What can students and young attorneys do to help circumvent that censorship on college campuses and in hiring practices? Many of us feel as if we have to choose between self-censorship and professional and even social suicide. So what can we do to bring in the next generation of originalist thinkers because I think a lot of us believe that we’re being -- we’re losing that platform. We exist, but the platform itself is shrinking and disappearing.

 

Hon. Jason Miyares:  I would just say real quick. Alumni should withhold their donations to their alma mater until they commit to ideological diversity, number one. [Applause] And I think -- and I do think that their -- and I’m a proud alumni of that same Federalist Society chapter at William and Mary. C.S. Lewis has a great line where he says, “The beginning of friendship is when you turn to somebody and say, ‘Oh, you too?’ I thought I was the only one.” Right? So I think there is both a power of the organizations like Federalist Society and others for people that have this originalist worldview to realize they’re not alone. And I think that’s critically important as well is to build up, continuing these different organizations that can foster and encourage the next generation.

 

Hon. Britt Grant:  I’ll say this: have debates in The Federalist Society. That’s, I think, one of the most fundamental principles of The Federalist Society is that there are important issues. Let’s hear both sides of them. If you’re not getting the originalist side at -- from the academics at your law school, have a debate. Invite people in. Let students hear. And I think more students will be persuaded, and they can feel like they can sneak in if they think the right side is also being represented. And maybe they’ll hear a different view and start to think about it more carefully.

 

Hon. Joan Larsen:  Okay. We are a little bit overtime, but I have to read you some things that I was told I must read. So I’m going to do it, and then, you can thank our terrific panel. So if you are pursuing CLE, we’d like to remind you to make sure you sign in and sign out once per day. If you did not sign in ahead of this panel, please do so now via the QR code in the program and also available at registration. Additionally, we would like to remind you of the Remnant Trust’s Rare Documents Exhibit located on the second floor in the South Carolina Room. You can access the second floor using the elevators located next to check-in. If you are ever need -- in need of coffee or a power strip to charge your phone or your laptop or your iPad, I suppose, throughout the day, these are located at the Mezzanine Level, accessible by the front elevators. There are no panels directly following this one, so we’d like to announce that lunch will be served shortly in the main hallway. Thank you very much. We are adjourned.

 

9:15 a.m. - 11:15 a.m.
Showcase Panel I: Roundtable: Originalism on the Ground

2023 National Lawyers Convention

Topics: Constitution • Jurisprudence • Philosophy
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue NW
Washington, DC 20006

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Trying to sort out what originalism means in practice requires integrating insights from all levels of the legal system, from academicians (both legal and historical), lawyers (from private practice, public interest, business, and government), and the bench (both trial and appellate and both state and federal). In this Roundtable, participants representing many of those elements of the legal culture offer insights on the current state of originalism in legal practice. Is there an identifiable "legal culture" to which originalism can be applied? If so, what should lawyers be doing that they are not doing? What should academics be doing that they are not doing? What should judges be doing that they are not doing?

Featuring

  • Hon. Paul D. Clement, Partner, Clement & Murphy, PLLC
  • Hon. Britt Grant, United States Court of Appeals, Eleventh Circuit
  • Hon. James C. Ho, United States Court of Appeals, Fifth Circuit
  • Prof. Bernadette Meyler, Carl and Sheila Spaeth Professor of Law, Stanford Law School
  • Hon. Jason Miyares, Attorney General, Commonwealth of Virginia
  • Hon. Elizabeth Wydra, President, Constitutional Accountability Center
  • Moderator: Hon. Joan Larsen, United States Court of Appeals, Sixth Circuit

Overflow: Chinese Room

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Event Transcript

Hon. Dean A. Reuter:  Welcome in, everyone. If people could find a seat, please. I know we have lots of people in the hallway, but we’re going to go ahead and get started, if we could.

 

Welcome and thank you all for being here. Thank you so much. I am Dean Reuter, Senior Vice President and General Counsel of The Federalist Society. It is my pleasure to welcome you to our proceedings at this year’s convention. I want to also welcome everyone watching on the live stream or on video, as the case be. I also want to thank, in addition to you here in the room, thank our donors for their support, without whom, I suppose, we’d be hosting this meeting in a field somewhere. So thanks to those donors, large and small.

 

And thanks in advance — I never get to do this with a lot of people in the room — but thanks in advance to our staff, the staff of The Federalist Society, and it’s really not thanks in advance. They’ve been working on this for months, so thank you to them for their efforts. [Applause] A couple of logistical items. If you’re seeking CLE credit, you need to use the QR code to sign in at this point in time, and then, sign out with the same QR code. Sign in every morning, and sign out every evening. Otherwise, you’ll create some problems for yourselves.

 

Also, we have, again, this year, the folks from the Remnant Trust and their collection of rare documents. I don’t know if folks were able to visit the exhibit last year, but it really, really is splendid, and I recommend you take a moment. There are some breaks in the schedule. It’s on the second floor in the South Carolina Room. And if you were there last year, you were probably awed.

 

There is a collection of new and additional documents this year. I shouldn’t say “new” documents. They’re new “old” documents. And really, where else can you go and actually hold a 1350 copy of Magna Carta. Upstairs on the second floor is where you can do that. And you have -- you get to hold, interact with these documents, take pictures with them, tweet about it. So that’s the business items.

 

As to the introduction, a wise man once told me that a good introduction is both brief and clever, so I will at least try to be brief. Our theme this year is “Originalism on the Ground,” and that is the focus of our first Showcase Panel. This, I think, is the largest roundtable panel discussion we’ve ever had. There are more -- you could land a plane on this table probably. The fact is there are more jurists now that are more receptive than ever to originalism and textualism.

 

Now, that might give some of us in the audience in the room a sense of satisfaction or even a sense of accomplishment, a sense of even finality, well done. We’re done. But to paraphrase Churchill, this does not mark the end of any originalism project, not even the beginning of the end of the original project. Rather, we’ve come, perhaps, to the end of the beginning of the original -- originalism project. This project really is just taking off. So this is not the time to pause or suspend discussion and explication of originalism, our research and scholarship on originalism. We need to carry forth. This is the time to move forward and to carry on, and so, we shall.

 

And that, this talk about originalism, does remind me of a brief story. And it relates to the meaning of words, indeed the very meaning of originalism. Some very good friends of mine had two sons, Charlie and Ryan, both toddlers at the time of this story. Now, Charlie was the younger of the two, and he had a medical condition that required daily injections. So it was a daily struggle for the parents who had to administer these shots, sometimes in the arms, sometimes in the thigh. And anyone here with children or anybody here who was a child, you know that there’s nothing enjoyed quite so much by a toddler as an injection by needle.

 

Well, one day, Charlie was particularly resistant to his injection. And the regular compromises and bribes weren’t working, so his mother got creative and offered Charlie a new compromise. She said, “Charlie, you can have your shot anywhere you want it.” And Charlie thought just briefly and said, “I want my shot in Ryan.” [Laughter] So his mother had said he could have his shot anywhere he wanted. She meant, of course, his arm or his thigh. That’s the context.

 

But she had said, “Anywhere.” And if you look up the word, “anywhere,” in the dictionary, you’ll find out that Charlie was probably within his rights to answer as he did. But of course, originalism is something more than just original public meaning of a single word or even a single phrase. It’s more nuanced and more complicated than that. And those nuances and complications will be central to our Showcase Panel discussions at this convention, beginning with this first Showcase Panel.

 

For this roundtable, we’ve assembled experts from different parts of the law and public policy world to give various perspectives on utility and state of originalism. We’ve included practicing lawyers, judges, academics, public interest folks. Because I’ve asked our moderators throughout the convention to be brief in their introduction of panelists, I will also be brief in introducing our moderator, almost abrupt, in fact. Your program lists Judge Kevin Newsom as our moderator, but he’s encountered an emergency. He’s just fine, but he can’t be with us today. So Judge Joan Larsen is subbing in as a participating moderator for Judge Newsom, and I owe her a special thanks for that.

 

Judge Larsen, known to many of you, I expect, sits on the U.S. Court of Appeals on the Sixth Circuit. And before taking the bench, she was a long-time member of the University of Michigan Law School faculty. So for our discussions today, she’ll bring at least two important perspectives. I have to let you know. I can’t let this go without mentioning that she graduated first in her class at Northwestern University Law School, so she and I have in common the fact that we both spent some time at Northwestern Law School. [Laughter] I don’t think they had class ranks when I was there. I wasn’t informed about that. [Laughter] But with that, I will call the panel and Judge Larsen forward, please.

 

Hon. Joan Larsen:  Welcome, everybody, to the first panel of the 2023 National Lawyers Convention. I am really excited to be here and to help moderate this discussion with a fantastic lineup of speakers. This year’s convention is focused on originalism. And when I look at the topics that will be debated over the next few days, I know it’s going to be a terrific conversation. For example, there are panels focusing on how originalism touches on particular topics, like federalism, religious liberty, and criminal law.

 

But today, we’re going to kick off our discussion with a broader lens. We’re talking about originalism on the ground, meaning how do we do originalism? And I think this topic has both normative and descriptive dimensions. So how is originalism actually being done in the real world, and also, how should it be done? And it’s also both theoretical and practical. How would we do originalism in an ideal world, and how can we do it in the world we actually inhabit with limited resources and constraints on our time?

 

And finally, we should ask how can we, as attorneys, academics, and judges, do a better job at facilitating the use of this important tool? So to bring you this topic, I have the pleasure of introducing just an all-star lineup of judges, lawyers, and academics, representing both the federal and state perspectives on this topic. Their full bios are in your program. So I’ll be brief, and I’m going to introduce our panelists in alphabetical order; although, that’s not the order in which they will appear.

 

So first, at the far end of the table, we have Paul Clement. [Applause] Paul is no stranger to The Federalist Society, as you can tell from the round of spontaneous applause. Paul served as the 43rd Solicitor General of the United States and has argued more than 100 cases before the U.S. Supreme Court. Paul is obviously a formidable litigator, but he also has an academic pursuit. And he’s so interested in that academic pursuit that he’s actually going to leave us early to go teach his class at Georgetown Law Center, so when he leaves us early, please know it’s not something that one of us said. [Laughter]

 

Next, we have the Honorable Britt Grant of the U.S. Court of Appeals for the Eleventh Circuit. Judge Grant brings not only the perspective of the Federal Court of Appeals but can also bring us a view from the states. Before her appointment to the Federal Court, Judge Grant was Justice Grant of the Supreme Court of Georgia, and before that, she was General Grant but not that one. She was Georgia’s Solicitor General.

 

The Honorable Jim Ho sits here to my left. Judge Ho serves on the U.S. Court of Appeals for the Fifth Circuit. Before taking the bench, he was a partner and co-chair of the Appellate and Constitutional Law practice group of Gibson, Dunn & Crutcher. Judge Ho, too, can share some views from the states, having served three years as the Solicitor General of Texas. And back when Judge Ho was just a baby lawyer, I had the pleasure to work with him in the Justice Department.

 

Our next speaker brings a view from the academy. Professor Bernadette Meyler is the Carla and the -- Carl and Sheila Spaeth Professor of Law at Stanford Law School. And I just butchered that, and having come from the academy, I know that it is very important to say the names of the endowed chairs correctly, so I’m going to say it again: the Carl and Sheila Spaeth Professor of Law at Stanford Law School. Professor Meyler is a scholar of British and American constitutional law and of law and the humanities. Her current book project will be of great interest to those in the audience, entitled, Common Law Originalism. It looks at various eighteenth-century common law meanings of various constitutional terms and phrases and, I take it, expresses some skepticism over our ability to lay hands on a single determinate meaning for much of the Constitution.

 

Next, we have a voice from the states. We have with us the Honorable Jason Miyares, Attorney General of the Commonwealth of Virginia. General Miyares was elected Attorney General in 2021 and, from 2015 to 2021, served in the Virginia House of Delegates. He also brings the perspective of a local county prosecutor, having started off in the Assistant Commonwealth Attorney for the City of Virginia Beach.

 

Finally, we have Elizabeth Wydra. She is the President of the Constitutional Accountability Center. In that role, she is a frequent litigator and a contributor to our national conversation on the Constitution. She joined CAC from private practice at Quinn Emanuel in San Francisco, and she, too, spent some time as a teacher, a supervising attorney, and teaching fellow at the appellate litigation clinic at Georgetown Law School.

 

So with that terrific lineup and this large panel, we have decided to dispense with the traditional format of opening statements and get right to some questions. So I will pose some questions for our panelists. Hopefully, somebody will take the lead in answering them, but others should feel free to jump into the conversation. And if time permits, we will open the questions, of course, for the audience at the end.

 

So I thought we might start with some methodological questions. And for the most part, when people talk about originalism today, we’re talking about the search for the original public meaning of the Constitution. That contrasts with an earlier vision of originalism, which focused more on a search for the intent of the Framers. But if we’re looking for original public meaning, I think we should ask the question, “What does that actually mean? Whose meaning are we seeking, and how broad is that lens?” And I think Elizabeth Wydra might have some perspectives on that topic.

 

Hon. Elizabeth Wydra:  Yeah.  Thank you so much. Thank you so much, Judge Larsen. And thank you so much, everyone here, for joining us this morning, and thank you for Dean inviting me to be here to talk about this really interesting subject with such an esteemed panel. I think that that question is still something that is being debated and disputed and explored. I come from an organization that focuses on originalism, and while we are nonpartisan, we are avowedly progressive. So when I take a look at whose voices perhaps should be included in the search for original public meaning, my lens seems to be broader than, for example, the lens that was included in Justice Alito’s Dobbs opinion or Justice Thomas’s Bruen decision.

 

And I think that it’s a challenge to us litigators to make sure that we are presenting a broad variety of voices whose opinions about the original public meaning matter. It’s a challenge to the academy, for sure, to discover, uncover the thoughts and debates of groups that have not always been the focus of historical analysis. There’s been some really fantastic recent work about the way that Native Americans understood the original public meaning of various constitutional provisions.

 

There is work out there already about how when the Reconstruction Amendments — Thirteenth, Fourteenth, and Fifteenth Amendments — were being ratified, the very rigorous debates that were going on in the African American community. And I think far too often the decisions that we see reflect the views on original public meaning of the, perhaps, most powerful group of people at the time. We are, understandably, looking back 100 years, so if you think whose voices are going to be recorded more frequently, those are probably the easiest to access. But it doesn’t mean we shouldn’t try harder because if you think about who was going to be deeply impacted, for example, by the Fourteenth Amendment, the people who had been freed after the Fourteenth Amendment from -- after the Thirteenth Amendment from enslavement certainly had a very substantial stake in what the Fourteenth Amendment meant: what kind of freedom that they had been granted in the Thirteenth Amendment, what that would mean, what the contours of that freedom would mean.

 

So to me, when I’m looking at original public meaning, looking at black newspapers from the time, looking at the way that the -- there were conventions of black activists and freed African Americans. Their debates and their views on the original public meaning certainly should be included in that lens. And, I think, as we have scholars doing more of this work, doing more of this excavation, then I think that conversation will only become richer and probably more reflective and representative of the true original public meaning of all of the folks whose views and voices should count.

 

Hon. Joan Larsen:  Yeah. Sure. Professor Meyler.

 

Prof. Bernadette Meyler:  Yeah. I would just love to add a bit to what Elizabeth was saying, which I think is part of -- looking at the different voices also is about what kinds of governmental materials are examined in an originalist investigation. So if a court is looking primarily at, say, state statutes, then the court might be excluding a number of voices that weren’t represented at the time of the enactment of those statutes. Whereas, if we think about looking at legal practices or, say, common law meanings, that may actually allow for the inclusion of more voices than looking at state statutes because even enslaved persons often appeared before the judiciary, that there are ways of excavating different voices through, say, the common law tradition that might not be apparent within the, say, state statutes or the work of representative bodies. So I think that being attentive to what kinds of governmental sources are used as well as looking at the kinds of newspaper sources and other sources that Elizabeth was mentioning is another way of opening up the conversation when you’re looking at different voices that are part of a conversation about original meaning.

 

Hon. Britt Grant:  I’ll add one thing, too, if I might. Excuse me. I think original public meaning has become the main lens of originalism, but to Dean’s point, I don’t think that originalism as a scholarly or judicial enterprise has been completed as a project. And I’ve recently heard presentations about original methods originalism or original law originalism, and I think it’s important as we continue this project to be open to new ideas about how we can best interpret the Constitution or even statutes. I think that’s an important thing to consider.

 

When we think of originalism, we often think of just the Constitution, but in my experience, both at the state courts and at the federal court, sometimes I was looking at statutes from the 1800s to try to figure out what appellate procedure from 1964 in Georgia really meant. And so, I think it’s important to really keep our eye on all of the options for originalism as an interpretive method and to keep open, keep reading scholarship, thinking through all this -- all those different aspects of it.

 

Hon. Joan Larsen:  Paul.

 

Hon. Paul D. Clement:  So I’d just like to, in a couple of the earlier remarks, just sort of concur in part and dissent in part. I’m not a judge, but I still like to think I can do that. [Laughter] I completely agree with Elizabeth that when you’re interpreting the Fourteenth Amendment, that taking into account the understanding of the original public meaning in the African American community’s absolutely essential. I’ve used that to argue that actually the Freedmen and the Freedmen Bureaus had a robust understanding that the Fourteenth Amendment was going to protect their Second Amendment rights. And that’s exactly what they understood was part of the protection that they were getting through the adoption of the Fourteenth Amendment. And I do think, more generally, sometimes, The Federalist Society folks, we love to look at sort of Madison and Hamilton, and we’re not as interested in the Reconstruction Amendments, and I don’t know why that would be the case.

 

The Reconstruction Amendments are hugely important to the extent that they are the vehicle through which the Bill of Rights is incorporated against the states. There’s a robust debate about what original public meaning matters: 1789 or 1868, and I don’t know how that’s ultimately going to be resolved. But personally, I think, 1868’s got to be hugely relevant, and I think some of the leading Reconstruction-era senators are folks that we ought to have -- I don’t know -- panels named after or something. I think we should really be focused on that because it’s a huge part of our constitutional history, so I totally agree with that.

 

I guess where I dissent in part is I think the project of consistently trying to unearth something that was obscure even in 1789 has really limited utility. In the context of arguing the Bruen case, the folks on the other side unearthed a third reporter of Knight’s case that was a little bit different from the two standard widely circulated reports of that decision and tried to make something of it. But there’s -- if there’s an obscure report of a case in three libraries in England and no evidence that that report ever made it to this side of the Atlantic, who cares? The idea is we don’t care about what people were thinking in 1789 just for the sake of identifying somebody that had a goofy view of an otherwise fairly clear provision in the Constitution. What we’re -- I think the point of the project is to try understand what the people who were ratifying the Constitution and discussing the Constitution -- and I’ll spot Elizabeth this: I don’t think we only care about the people who could vote in the ratification process. I think we care about everybody in the body politic on this side of the Atlantic.

 

But if you come up-- if some great scholar comes up with some private diary of somebody in their own idiosyncratic view of something, I don’t care about that. That doesn’t seem at all relevant to the project, so I do think we got to -- you got to keep in mind the whole endpoint of the project in deciding which sources you’re going to credit and which sources really move the needle.

 

Hon. Elizabeth Wydra:  I think that you’d probably fail the public part of the public meaning if it’s someone’s private diary, but I think we just have to be, I think, very cautious about noting what things might be obscured by the fact that certain historians have been doing historical work and haven’t been interested in certain voices versus what is obscured because it’s in someone’s drawer next to their bed. And so, when you’re talking about entire tribes, for example, debating parts of the Constitution that are very much relevant to their daily lives, that isn’t something that’s gotten a lot of attention because -- partly because some of the scholarly work is just beginning, but that is the type of thing that I’m saying is really important to include and making sure that -- there’s a lot of criticism, I think, of the project that people pick and choose what works best for them on both sides. And by being more inclusive with these voices, I think, we can have a richer view and more accurate view of original public meaning and also see the places where there is contestation, where there might be several different original public meanings and having to have the judges -- ya’ll have a hard job sometimes. It’s not always just super easy, one answer, and that’s going to be something that should be presented to the judges for them to interrogate themselves.

 

Hon. Joan Larsen:  Judge Ho.

 

Hon. James C. Ho:  So just to dive into this nice exchange we’re seeing, I like information, the more data, the better, just because I’m interested and want to sort to get -- make sure I’m getting the best arguments on all sides. So in that spirit, I certainly have no concerns and would agree with Elizabeth that I want to hear about everything. Having said that, I think we would want to be sensitive, of course, to are we seeing a situation where different communities have different meanings of words. Is it sort of -- there’s ordinary meaning that the community understands, and a particular community that sees it as a term of art. Is it genuine dispute over words having different concepts, or is it really just different communities having different policy preferences? Without knowing the details of some of the cases we’re talking about here because I wasn’t involved in those, I would be curious to see to what extent the differences are differences of meaning or -- versus differences of policy preferences.

 

I like Dean’s story about the toddlers and the fear of the shots. I’ll confess it reminds me of my own kids. Allyson and I have wonderful children and, frankly, somewhat weird children. These are the only kids you’ll ever meet who do not like their birthdays because they are worried about going to the doctor for the annual exam and getting shots. I’m not kidding. They literally tell us they don’t like their birthdays for that reason. So I appreciate the story on a personal level.

 

Of course, the answer to the proposed interpretive fight in that story is does the child actually believe that anywhere means anywhere, anybody’s body, or does context make clear that it’s anywhere on his body? And so, again, he may want to say he that has a different community definition, but I do -- but I wonder if it’s more motivated reasoning than an actually good faith debate about the meaning of words.

 

Hon. Joan Larsen:  All right. So since we have an expert on Bruen here, Bruen introduced something that might be -- I’m not sure if it’s new, but it certainly became prominent in Bruen, and that is a discussion of this phrase, “text, history, and tradition.” And so, one thing we might want to think about is what do each of those individual items — text, history, and tradition — play in a proper originalist analysis. Tradition is the one that really stands out on the list, and Judge Newsom, who was originally going to moderate this panel, wrote in a concurrence to his own excellent opinion. He wrote a concurrence to the opinion in which he has a footnote, which raises this question.

 

He said, “It’s never been clear to me what work tradition is supposed to be doing in the tripartite “text, history, and tradition” formulation. To the extent that tradition is meant to stand in for the original, i.e. historical, public meaning of the words on the page, it’s duplicative. And to the extent that it is meant to expand the inquiry beyond the original public meaning, say, to encompass latter-day-but-still-kind-of-oldish understandings, it misdirects the inquiry.” So I guess I’ll just throw out Judge Newsom’s musings and let you all muse. Anyone want to comment on what role tradition is serving?  Paul?

 

Hon. Paul D. Clement:  I’ll take a crack at it, not that I really think it has a lot to do with having argued Bruen, but I do think this is an emerging trend. I think that that also -- when the Court noted the death of the Lemon test and talked about what would replace it, it also talked about text, history, and tradition. So this is obviously -- it’s kind of a throughline in a lot of areas of the law, and so, it would be nice if history and tradition were not like a doublet that really had no independent meaning. It seems like if the Supreme Court telling us three things, we ought to try to differentiate the last two. I think one way of thinking about it is that you could think of history as being the things that predate the relevant time period, like the Framing, if we’re talking about that, and then the tradition being what follows the Framing to the point where the Court is reaching the interpretive question. And maybe I’m sort of very, very gently taking a little bit of issue with Judge Newsom’s framing. It’s never a great idea for a lawyer. But to me, I --

 

Hon. Joan Larsen:  He’s not here.

 

Hon. Paul D. Clement:  Yeah, well. That helps. That helps. But maybe a good illustration is something like the practice of legislative prayer, and does that violate the Establishment Clause? And you could look at the practice in England in the Parliament or the practice in Congress and the Articles of Confederation, and I think that you would say that’s history. And then, you would look at the fact that Congress had a chaplain in the First Congress, and all the same people that were proposing the Bill of Rights and the Establishment Clause, in particular, didn’t think there was anything problematic about having a chaplain. And then, you look at the fact that the Second Congress and the Third Congress and the Fourth Congress and the Fifth Congress and the Sixth Congress, etc., etc. all had the same thing. And then, in the 1970s, the Supreme Court is asked to say does this unbroken practice violate the Establishment Clause. Has there been a sort of lurking Establishment Clause violation going back to the Framing of the country?

 

And it seems to me that there is -- that it is perfectly appropriate for the Court to look at that tradition and to simply say, well, that stuff happened after the Framing, so it doesn’t really inform the original public meaning. I guess I would disagree, which is to say, first -- you could probably spot me the first twenty Congresses because that’s a bunch of people who might have been alive and well at the time of the Framing, but then, there is a certain humility that kicks in at a certain point. And there’s almost like a sibling resemblance with something like the major questions doctrine where just when you’re -- and whether you buy sort of the full-blown majority view or the Justice Barrett concurrence view, I think there’s a strain of judicial humility that sort of says, gee whiz, if somebody’s coming in and telling me something that has been going on a long, long time and nobody’s thought it either violated this constitutional provision or violated this statute, that is something that ought to be a strike against the person saying that this well-established practice has really violated the law all around. I don’t think it -- I think there’s probably a reason it’s third on the list. But it seems to me there is something there that’s different from history and probably does have an important role to play in interpretation.

 

Hon. Joan Larsen:  Thoughts? Comments?

 

Hon. Britt Grant:  I think I would generally agree with that, and I would say that whether we look at tradition as a reflection of settled understandings that, as Paul says, maybe judicial humility would suggest thinking really hard before we interrupt those settled understandings or some sort of liquidation throughout time. We’ve seen Founders discussing liquidation, and there are a lot of debates about what that means. But maybe that’s an idea where, even if it wasn’t entirely clear at the beginning, if we can see that there is a tradition of interpreting something a specific way, then maybe that’s something that we could pay attention to as well. So it’ll be interesting to see, as this doctrine develops and extends in other areas, whether we reach any consensus on what tradition means with respect to those two things.

 

Hon. Joan Larsen:  Bernadette -- Professor Meyler? Sorry.

 

Prof. Bernadette Meyler:  Yes. No, that’s okay. So I think that I see it going back a little bit further to the Washington against Glucksberg test for the Fourteenth Amendment due process inquiry and that their tradition is playing a role and a tradition of protection of particular rights. And I think that, in that context, we might wonder whether evolving tradition or a more static tradition is what should be looked to and whether -- and also how broadly a tradition can be defined. Is it a tradition of protecting parental rights per se or protecting the rights of a non-marital father? So I think that those are some of the issues that I see coming up with respect to tradition. It’s the question of how broadly a particular tradition is defined and also whether you’re looking to an unbroken tradition since the Founding or looking to the evolution of tradition.

 

And that’s where I might distinguish it a bit from what Paul Clement was saying about major questions because, in that context, it’s not just something that’s new that might be called into question under certain understandings of tradition but rather something that’s evolved away from the original meaning. So I think that sometimes there could be a conflict between, say, precedent or -- and I know there’s another panel on precedent -- and original meaning where the tradition that has evolved through precedent might have deviated from what people now think would be the original meaning of a particular clause.

 

Hon. Joan Larsen:  Right. And I think an example of that might be if you think about the Crawford case. So we had a long tradition of substituting hearsay rules for confrontation. We did that for a very, very long time, and the Supreme Court, in Crawford, said, “No. We have to look at confrontation and what the original meaning of that is. And it’s not the same as the hearsay rules.” And so, despite the fact that there was a long tradition, we went -- we reverted to the original public meaning.

 

Hon. James C. Ho:  Well, I wonder whether that suggests what I assume to be true but -- and not controversial but would welcome people to disagree. When we talk about text, history, and tradition, what I’m assuming we really mean is text. Text is what we’re looking at, whether you call it textualism or originalism. That’s what we’re interpreting as lawyers and judges. It’s to the extent where the text has -- is ambiguous. It’s capable of different of meanings -- competing communities, what have you, where we then look to other tools, whether it’s dictionaries or history or tradition or canons of interpretation or anything else.

 

You mentioned Glucksberg, and whether it’s Glucksberg or Bruen, I think, frankly, we’re all sort of eagerly awaiting to see what the Supreme Court tells us it means when it refers to history and tradition. Glucksberg seems to be the standard, revived and recodified in Dobbs. Tradition could, theoretically, include a lot of things. It does include economic liberty. You referred to parental rights. If we’re serious about tradition in addition to text, that opens up a whole new area of analysis, or is tradition subservient to text, which might take us to a different path. And I think the Supreme Court presumably will tell us at some point.

 

Hon. Joan Larsen:  So maybe the test, as you would propose it, is text as informed by history and tradition?

 

Hon. James C. Ho:  I assume that’s what we’re doing, but I’m waiting for the Supreme Court to teach us, so I can do what they’re telling us to do. It’s not always easy to do what they want us to do.

 

Hon. Joan Larsen:  Fair. Speaking of -- that’s a perfect segue. So let’s talk about precedent. So what role does an originalist analysis preserve for precedent? Do we think of precedent as part of originalism, as sort of being baked into Article III’s reference to the judicial power? Or is precedent antithetical to a true consistency -- consistent commitment to originalism? Do the practitioners on the panel think differently about this than the judges? Anybody want to talk about precedent? Nobody wants to talk about precedent. Okay. So the Supreme Court -- I’ll talk about precedent.

 

Hon. James C. Ho:  It’s like Bruno.

 

Hon. Joan Larsen:  So the Supreme Court has told us -- for those of us on the panel who are middle managers, right, appellate judges, we have to do what our nine bosses tell us, and we try very hard to faithfully follow what they tell us. And one thing that they have told us very clearly -- you might call this -- I like to call it the Agostini principle. Some people call is the Rodriguez [inaudible 00:50:39] principle. But one thing they’ve told us very clearly is that when there is a case that is directly on point, even if we the lower court judges look around and think, “Gosh, the foundations of this precedent have been undercut. It doesn’t seem consistent at all with the way that the Supreme Court is telling us to approach cases.” Now, the Supreme Court has told us, “You are to apply our precedent when there’s a case directly on point, and we, the Supreme Court, will overrule our own precedence. Thank you very much, lower court judges, for your input.”

 

So I try to do that because that’s what they told me to do. But one thing that I think about often is whether that’s consistent with the judicial role. If you think that a case is wrongly decided, if it’s a case that wasn’t decided using an originalist methodology, if you think it’s a case that you’re pretty sure the Supreme Court would overrule, what do you do as a lower court judge? So I can toss that out to the other judges, or I can keep talking, but it’s probably more interesting to hear from you.

 

Hon. James C. Ho:  I’ll take a quick stab at it. So this is one of these eternal debates that I have with -- I’m sure many judges have with law clerks, which is -- the argument will be, “Judge, you didn’t swear an oath to uphold Supreme Court precedent. You swore an oath to uphold the Constitution. So does that suggest that you get to do whatever you want in terms of interpreting the Constitution?” It’s an interesting argument.

 

It’s obviously trying to look at the words of the oath, and it’s a view that’s held by, to my knowledge, not a single member of the federal judiciary, [laughter] for any number of obvious reasons. It’s a hierarchal; we don’t want to be fired; we don’t want to overturned, etc., etc. Or if it’s anything else, you’re just kind of bumping your head against the wall. Right? The Supreme Court’s going to do what it’s going to do, and we have to follow it.

 

The way I’ve tried to reconcile it — and I often cite Judges Bumatay and Bush because they’ve written a lot on this topic — is we’re duty-bound to -- if you believe in originalism, which I just sort of think of as lawyering, then we’re duty-bound to be faithful to the text and original understanding of whatever words we’re supposed to be interpreting to the maximum extent permitted by a faithful reading of Supreme Court precedent. Now, obviously there are some words there that require further fleshing out, and I’m interested in sort of seeing how we flesh these out in future cases, but the point’s -- to me, the main things are maximum extent consistent with a faithful reading of precedence. That’s sort of how I try to wrestle with it at a sort of abstract level, and now, we have to sort of implement that in subsequent cases.

 

Hon. Joan Larsen:  Does that mean that you would read a precedent -- the strict command is when there is a case directly on point. And does that influence how broadly or narrowly you read the precedent?

 

Hon. James C. Ho:  I think that’s what the word, “faithful,” is doing. Right? So you could say, “Well” — to use a very silly, stupid example — “the facts of that case -- that Supreme Court were done on a Tuesday. This is on a Wednesday. Obviously, that’s not faithful.” And so, you have to figure out what is the precedent. What is the rule that is being imposed on us by that Supreme Court decision?

 

And we try to be faithful to it, but we don’t have to extend it to situations that go outside of it. I fully acknowledge that leaves a lot of open discussion for what does it mean to be faithful, and as I said, that’s -- one sort of modest thought that I’ve seen fleshed out is you don’t want to make the law completely illogically by making it -- by distinguishing in ways that are utterly unprincipled. And so, that might be an initial take on that.

 

Hon. Britt Grant:  I think the question for us is very different than, of course, the question for the Supreme Court. Right? So I think they -- I think the question that they deal with is, to my mind, the most difficult one in originalism, which is where is that line between sticking with precedent, and it’s -- in certain cases, you know you have to overturn it. Right? We all know the classic cases that I won’t list here, but I think for us, as circuit judges, it’s a different question. I think I agree with Judge Ho about reading -- I won’t resay what he said either, but I think sometimes, though, there’s a kind of administrative rule to precedent that we also forget about.

 

I think the Eleventh Circuit has a unique background in this because, having split from the Fifth Circuit, the court made a very conscience decision to adopt all the precedence of the Fifth Circuit for our own. So in almost every single Eleventh Circuit case, you’ll see a footnote citing Bonner v. City of Prichard. I’m maybe messing that up, and I see it so much. But the point was the fact that a panel of this court may come out differently on one issue one time was not worth all of the upset to people’s understanding, lawyers’ understanding, litigants’ understanding of how they needed to put their behavior forward. So I think, as a -- on kind of the smaller issues, I think precedent becomes very important as an administrative matter. And then, on the more publicly divisive issues, I think it’s really interesting to see how we can apply some of those same tools in a thoughtful way and make sure that we’re fulfilling our duty to the Constitution and as intermediate appellate court judges as opposed to the ultimate deciders on the Supreme Court who, as you say, give us certain instructions about what to do.

 

Hon. Joan Larsen:  Right. So I wonder to what extent that Agostini principle influences the way that lawyers think about presenting arguments to intermediate appellate courts. So if you’re a litigator and you think, “Look, this case is governed by precedent; it’s a constitutional question, but it’s governed by precedent,” are you just going to argue the precedent and then save the originalist fire for the U.S. Supreme Court? Or do you think about, “Well, maybe there’s an opening here; maybe there’s a way to read the case narrowly, the precedent narrowly,” and convince the panel that there’s an opening?

 

And part of this -- I wonder about this because, having been on the federal court now for, I don’t know, five years, maybe six years, we get very little briefing in our court that engages actual originalist methodology. There’s a case the Supreme Court just heard called Culley v. Marshall. I think that was last week. It involves the forfeiture of automobiles and whether you have a right to a pre-termination hearing when your vehicle is forfeited. Our court had decided a merits case on that. I was not on that panel, but the case was presented to a panel I was on earlier, the same question, and we dismissed at the motion-to-dismiss stage, so we didn’t reach the merits.

 

But in that litigation, there was no originalist briefing whatsoever of -- the litigation, as I recall, involved should we apply one of two doctrinal tests made up by the Supreme Court, the -- a balancing due process -- Mathews v. Eldridge balancing test or the Barker v. Wingo, also balancing test, out of the Speedy Trial Clause. And that’s the way the case was framed. I’m listening to the oral arguments last week, thinking, “Oh, I know what this case is about,” and they’re talking about, “Well, should we follow the historical analysis presented to us by this group of amici or by this group of amici?” And I thought, “Wow. It really would have been helpful to have some group of amici. That might have really been a nice thing.”

 

So, I guess, the question is as somebody litigating in the appellate courts, do you present your originalist case? Should you present your originalist case, or should you just hold your fire for the Supreme Court when all the guns will come out, and they’re going to get the best advocacy, and they can come to the best conclusion that way?

 

Hon. Jason Miyares:  I think it has been an interesting transformation, particularly in the state courts, what we have seen, where they’re now -- traditionally, they have outsourced and not used federal interpretation to interpret their state statutes. I think we’ve seen the opposite in the last several years, almost a revolution. I know that we have a case in Virginia, the West Point School Board case, where we actually made the argument to our solicitor, Andrew Ferguson, I think, quite robustly, looking at the Virginia statute of religious freedom and also looking at the -- both the original intent and the tradition of that. That was originally introduced in 1779 in the Virginia General Assembly at the genesis of Thomas Jefferson carried by a young, quiet delegate from Orange County, James Madison, with vehement opposition by a very vocal member of the General Assembly named Patrick Henry. And the origins of that really was that Patrick Henry had introduced legislation that was going to seek state support for the newly minted Episcopal Church in Virginia. Problem is almost every other Christian sect was horrified by this, and there was some vehement opposition.

 

And so, when we looked at -- when our solicitor argued it, we pointed out — in Virginia and it was reaffirmed; it was actually passed in 1786 by the General Assembly, and it was reaffirmed in 1971 — that the Virginia statute provide much more robust protections than the First Amendment Free Exercise Clause. And so, I thought we were able to make, I think, a pretty compelling argument, looking at the history of that, of the very explicit language that nobody should be burdened by practicing their religious beliefs by the state. And I’m not going to necessarily get into the facts of the West Point case because, candidly, it’s still pending in front of the Supreme Court. But I thought that was a great example of both using originalism and the precedent of what our case law was in a new setting in state court, which previously hadn’t really been done before.

 

Hon. Paul D. Clement:  Yeah. And Judge Larsen, I think from the perspective of federal court practice, at least the way I would answer the question, is it depends. And it depends where you are in the litigation. Are you trying -- where is the precedent? Is this a case where you really think you can maneuver around a Supreme Court precedent? If you are -- if the whole point of the litigation is to get a Supreme Court case overruled and the lower cases are hemmed in by the Agostini approach, then I don’t think there’s any point in pretending that those courts can overrule Supreme Court precedent. I think, in those circumstances, there’s one of two playbooks, and I’ve seen people do it both ways.

 

There’s a playbook that, I think, Mike Carvin used in trying to get the overruling of Abood back in front of the Court after the Court had signaled it, and he basically went into district court and said, “Hello. I lose under Abood. Please rule against me very quickly.” And then, he went to the Ninth Circuit and said, “Hello. We lose under Abood. Please rule against us very quickly.” And then, he filed the cert petition and got cert granted.

 

So that’s one approach. But you got to be pretty confident, a, that there’s no wiggle room, and, b, that there’s going to be a cert granted at the end of the rainbow. And so, if you’re litigating in a situation where it’s not that clear, you’ll try to get around it. You might use originalism. But I guess, this gets to a broader question, which is -- one reason you might do that as a litigant is one of the things that I think is a legitimate move for court of appeals judges, notwithstanding the Agostini principle, is there is this thing called the concurring opinion. I know Judge Ho’s used those from time to time.

 

And I don’t think there’s anything wrong with basically a judge saying, “I’m totally bound to apply the Supreme Court precedent, but I’m going to tell you in my concurring opinion why I think it’s wrong and why I think it would be useful if the Supreme Court revisited it.” And I think that’s both legitimate and, frankly, important because one downside of the Agostini principle is -- it’s great, and it’s orderly, but then, it doesn’t provide a great signaling device to the Supreme Court of the United States as to when they should reconsider their precedence. And they turned down a lot of cert petitions in my experience, so having something like a concurring opinion to point to can be really helpful.

 

Then, let me just say one other thing, which is -- so I think your point, Judge Larsen, really points to the -- kind of a broader phenomenon, which is one thing that’s a little weird about our system is that cases look a lot different in the court of appeals typically than they do in the Supreme Court of the United States. And that’s kind of weird in a system that’s supposed to be about that vertical review. And part of it is inevitable. The average court of appeals case probably has four or five issues in it, and they have to cover all those in the word limit. And then, it gets up to the Supreme Court, and there’s just a single issue there. The number of amici is generally smaller. I guess my thought, though, is if I were a court of appeals judge, I would, in cases that I think had a good chance of getting to the Supreme Court, I would try to narrow that gap.

 

And again, I think there are legitimate ways to do that. One example is that the -- if you have cases where it’s almost inevitable that the Supreme Court is going to call for the views of the solicitor general and be quite interested in what the solicitor general has to say, if I were a lower court judge, I would call for the views of the government -- the relevant government agency myself. Otherwise, it seems like you’re setting yourself up for failure because the Supreme Court’s going to be looking at something that’s very influential to them that you didn’t even give yourself a chance to look at. And similarly -- and maybe the judges on the panel would disagree with me, but I think if you’ve got a case where you really think this could go to the Supreme Court and you think there’s important historical literature that amici could bring to bear and the parties have dedicated all of three paragraphs to the argument, I don’t think there’s anything legitimate -- illegitimate, rather -- about a supplemental briefing order that invites the participation of amici.

 

Again, maybe you think that’s overreaching. Maybe you think that violates the strict Silberman-esque view of the Article III courts are stuck with the briefing of the adversarial parties, no matter how lousy. But I tend to think that’s a legitimate move, and it narrows that gap because I would think it’s very frustrating, as a court of appeals judge, to have the Supreme Court deciding an issue where, by the time it gets to the Supreme Court, it just is unrecognizable.

 

Hon. Joan Larsen:  That’s actually one of the first things now Chief Judge Sutton said to me when I came on the court is, “There’s a lot of things you’re going to learn about what it’s like to be a court of appeals judge, and one of those things is you’re going to decide a bunch cases, and they’re going to get upstairs, and you’re not -- you’re going to say, ‘Oh, wow. I didn’t know that’s what this case was about.’”

 

Hon. Elizabeth Wydra:  So I just want to apologize. One of the briefs that Justice Barrett was talking about in the Culley oral argument was indeed filed by the Constitutional Accountability Center, so I apologize for not filing that brief in your case.

 

Hon. Joan Larsen:  Accepted.

 

Hon. Elizabeth Wydra:  Yes, it is truly a resources bandwidth question. But it’s -- that is, I think, a :real issue for the lower court cases because -- and it could be solved, as Paul suggests, by inviting amicus participation, but good originalism takes time, and it takes expertise, and particularly, on the left, there are not that many of us who are practicing it. And CAC is small but mighty, but we can only do so many cases. And I like my fellow colleagues to be able to sleep some time. And so, being able to write briefs that have that rigorous, credible originalist analysis takes a lot of work.

 

And so, it’s one thing when it’s in the Supreme Court, but it’s another trying to cover all the ground of the courts of appeals. And I think that’s a real challenge for judges because then are you trying to do it yourself. Are you asking for amicus participation? As a litigator, I want to give you the best argument, so I would like for my side -- whatever side I’m advocating for to be giving you those arguments. But that is not always possible in every case.

 

Hon. Joan Larsen:  Yeah. Professor Meyler.

 

Prof. Bernadette Meyler:  Yeah. I was very curious about everyone’s take on whether or not to invite amicus participation at the appellate level, but I also wanted to introduce another element, which is just that I think some Supreme Court cases are directly lower courts, especially district courts, to actually engage in more originalist inquiry, especially if you think about the aftermath of Bruen, that in order for the government to kind of demonstrate that there were analogous statutes at the time of the Fourteenth Amendment, that, in a way, they’re going to have to already be doing originalist analysis at the district court level. And I’m also curious about how people feel about the expenditure of time on originalist analysis in that context as well.

 

Hon. James C. Ho:  So just to follow up, there are two things that have been said that I -- that are interesting to me. One is the resource limitation issue, and the other is the amici aspect. So on resource limitation, I was actually a litigator, an appellate litigator, longer than I’ve been a judge, and what strikes me as resource limitations are a huge issue on both fronts. In practice, obviously, it’s the limitations of your client. Some clients want to do full [inaudible 59:07]; other clients won’t. I think Paul is absolutely right. It depends on the nature of the case. The lawyer has to make the call about what’s valuable.

 

The resource limitations issues is also very serious in the judiciaries, particularly court of appeals. As practitioner, let’s say you argue, what, one case a month, one every other month, more than that. Whatever the number is, it’s some handful of cases that you’re getting involved with on a per-year basis. That provides you a decent -- hopefully, a decent amount of time, assuming your client’s willing, to really get in deep to make sure you’ve maximized every aspect of whatever legal issues are presented in your case. On the Fifth Circuit, we do 20 arguments per sitting, per month, seven sittings a month, and that’s just the argue cases in addition to all the other matters that we have to deal with. And so, the resource limitations are very serious, and so, we are essentially looking to lawyers to present briefs that are hopefully well-written and cover the waterfront.

 

And the way I think of it is if it’s not in the briefs and we think it’s important, we can dive in ourselves and try to -- obviously, we have party-presentation issues and forfeiture issues and whatnot, but as long as you presented the issue, we could theoretically do our own additional -- make sure you found all the cases and all the right authorities. But what I struggle with is every single minute I spend diving deeper on one case is time I’m taking away from every other case on my docket, never mind my family and my sleep. And so, I think the resource limitations on both sides of the bench, the podium and on the bench, are important aspects of this issue.

 

As to amici, I like amici. I liked it when I was a practitioner. I think they can be helpful. Obviously, the “Me Too” type of amicus brief where you’re just repeating what somebody else says, that not terribly helpful. It’s just a waste of space. But when it’s a good amicus brief, that can be wonderful.

 

And it’s not necessarily that the practitioner -- the party lawyer has messed up. Maybe they’ve omitted something, but maybe the amici has an angle that it’s more awkward for a particular party to present. I was involved in a case, one of these pre-Bostock-type cases where we invited amici, one particular amici, to argue because neither side had argued that Title VII doesn’t apply to certain classifications. So we invited amicus to do that. Having said that, I get nervous about doing that too much. I’m not sure why. Maybe it’s the silver mask view of the world. I certainly would be wary about playing favorites, signaling where a court is.

 

In the case that I mentioned where we did it, it was literally because we had one side of the case not represented. And so, we needed somebody to literally fill in a position. It’s sort of like when the Supreme Court invites somebody when the government confesses error. It’s that sort of thing. You just want the adversarial process. Beyond that, I’m -- put me as not sure.

 

Hon. Jason Miyares:  And I would say, just from the attorney general’s perspective, what we have seen is, particularly when you’re looking at amicus, you have state AG offices that are very under-resourced, and often times, they will look to team up with states with larger AGs office that maybe are aligned philosophically. And essentially, it’s a way to pull our resources together, which we do all the time, whether it’s a multi-state investigation. But we’ve found that repeatedly, what I have seen — it’s actually one of the things that has surprised me in my role is how much coordination there is with the other comparable state AGs and their SGs in working together on amicus briefs, almost like assigning homework assignments, of, “Can you help state X on this matter?” And everybody does each other a kind of solid when they need assistance themselves. And I have found it invaluable because what you’re able to do is you’re to engage more and maximum your resources, and you’re really able to help some of these states that have very, very small SG offices and able to really assist them, to provide resources. So I view it as invaluable.

 

Hon. Britt Grant:  I’ll add two things. First, to follow up on his comments, when I moved from private practice to the state attorney general’s office, I almost immediately within six months thought, “Wow, if at least a few of these cases that I was, I wish that we had reached out to relevant attorney general offices to ask them if they would be interested in filing an amicus brief to tell them about this case that was going to really affect the states in very particular ways.” And the courts didn’t have the states’ perspectives, and I think it might have made a difference in at least one and maybe two cases that I can think of right off the bat.

 

So I would say don’t ask states -- as he says, there are resources issues. Don’t ask states just willy-nilly but really think through. If you’re litigating an issue that’s going to make a big a difference to the states, it’s going to have an impact on state laws, even if it’s a federal case, then don’t hesitate to try to find those connections, try to reach out to the attorney general’s office, and let them know about the case. They may or may not be able to get involved, but I think the states do have a very important perspective in our system that -- thankfully, the states are litigating more and more and filing amicus briefs more and more. But I think it’s an area that still has room for additional growth.

 

And the other thing I’ll say about the adversarial process is so many of our doctrines are designed around the adversarial process. Right? Standing has been a really big question in the Supreme Court and the circuit courts lately. And I think when we think about doing it all on our own, we forget that so much of our system is designed around the idea that litigants will have the right incentives when they have a problem to really try to figure out the best arguments in favor of their position. And as judges, we’re just not always situated to figure out the best arguments in favor of one position and to realize that there are arguments on the other side, maybe from perspectives that we haven’t considered. And so, to my mind, briefing is really important and really helpful almost any time you’re digging into one of these questions. And I hope that, in both state and federal courts, we’ll start to see more of it as lawyers become aware that a lot of judges are thinking about these things in different and expansive ways.

 

Hon. Joan Larsen:  So we’ve been talking a lot about -- almost exclusively, about originalism as it’s practiced in federal court. We have here a former state Supreme Court justice. We have the attorney general of a state. General Miyares touched on this already a little bit, but I wonder whether there’s something different about doing originalism when you’re talking about interpreting a federal constitution, which the wrap on originalism that you hear on the -- from its critics is, ‘Oh, the federal Constitution is old, and it’s impossible to amend, and therefore, the judges need to update it.” That would be the critique.

 

I wonder whether that same -- those same concerns exist in most of the states, not all, for those of you on the Eastern seaboard. For those of you from Massachusetts with your Constitution of 1780, okay, I yield. But I come from a state which ratified its most recent constitution in 1963, so it’s not old, and it’s not hard to amend. It’s super easy. You can amend the Michigan Constitution -- not super easy but comparatively easy. You can amend the Michigan Constitution by initiative. We saw it happening in states just yesterday. And so, I wonder whether the arguments against originalism have less weight in state courts, and I wonder whether there’s anything different about doing originalism when we’re talking about a state constitution.

 

Hon. Jason Miyares:  At least from my perspective, Jefferson called the states the laboratories of democracy, and I find it fascinating that you’re having this kind of, not revolution, but a rethinking — Judge Sutton and others that have really pointed at using originalism in our state constitution. Obviously, Virginia and Massachusetts and others have a unique history of our own, just given the both depth and breadth and the history. But I think it’s absolutely a useful tool. Every state amends their constitution differently, as we all know. Obviously, Ohio does it by referendum. You have to have a requisite number of petition signatures to get it on a ballot, and then, it’s simply 50 percent of the voters.

 

In Virginia, it has to be passed by the General Assembly, both the House and Senate. It never goes to the governor’s desk. There has to be an intervening election of the Virginia House of Delegates, and then, the newly constituted General Assembly has to vote on the exact same measure, the exact same wording, cannot change so much as a comma. And then, if it passes, then it has to go to be ratified by the voters that November. So the Virginia Constitution is more difficult to amend than, say, the Ohio Constitution, but obviously, we have an amendment process that probably some would say would be easier than amending the federal Constitution.

 

I view it as an absolute tool that should be used at the state appellate level. I don’t think you should outsource it to a federal interpretation. I think you should look at -- I think you should have your state judges be looking at both the history, tradition, and the original meaning of the text because our constitution is relatively new in Virginia. And so, I think we’re in a totally different place than maybe what other people think, but from my perspective, I view it as an absolute useful tool, and I’d like to see more judges using it in Virginia, applying it to our state constitution and state law.

 

Hon. Joan Larsen:  Go ahead. Professor Meyler.

 

Prof. Bernadette Meyler:  A thought about using originalism in the state context. So I think one of the reasons, potentially, for the move to original public meaning rather than original intent is the fact that we have no official notes of the federal convention that established the Constitution. We have Madison’s notes on the Convention, but it was not supposed to be recorded. So there’s a way in which there is a lack of contemporaneous information. We have to derive insights from a retrospective account or from very piecemeal accounts of various participants.

 

Of course, that’s not exactly the case with the Reconstitution Amendments. We can look at the Congressional record for those. But I think that that influences a bit the tone of originalism within the federal context, and I think that the fact that, in a lot of state contexts, we do have availability of deliberations about the constitution perhaps might lend itself towards having more argument about what the meaning of particular clauses of a state constitution might be based on the original intent rather than original public meaning.

 

Another consideration, though, I think does have to with the referendum process. And I know, coming from California, there are a number of fairly poorly drafted measures that have been put on the ballot, and it’s not entirely clear that the public explanations given for them were accurate or really reflected what the language actually says, and the drafting itself isn’t really very easy to pin down. So I think that that raises some complications. What exactly were voters voting on? And it raises some questions about how to kind of interpret a clause like that. And I think that that is somewhat different from the federal context where amendments go through a much more rigorous and much more lengthy process. And so, you would have a lot more material to go on in terms of determining what the original public meaning of a federal amendment was.

 

Hon. Elizabeth Wydra:  I think that’s a really great point about the availability of sources and clear sources for some of these analyses because if we don’t do a rigorous analysis, then it’s not really helpful to the judges. One area in which Constitutional Accountability Center has been able to participate in state courts, even with resource limitations, is many state constitutions incorporate by reference either the text explicitly or the values of the Fourteenth Amendment or the Declaration of Independence. And so, we’ve been able to file in state cases under state constitutions that include that reference because we have done the originalist work on those amendments and the principles and values of the Declaration of Independence.

 

Hon. Britt Grant:  You see in state constitutions, I think, interesting interpretive principles, and legal fiction sometimes start to take place. And one thing that you said reminded me. On Georgia constitutional amendments, the rule -- obviously, the amendment is typically longer than you can have on the ballot, and the rule that the Georgia Supreme Court put in place decades ago is the description on the ballot has to be enough to let the voter know which constitutional amendment they’re voting on under the legal fiction, that that will allow everyone to think back to the time when they personally and individually before the vote reviewed the text of the constitutional amendment in full to determine whether they wanted to vote for it. So it’s interesting.

 

In Georgia, too, there’s a rule that we -- if you -- if the Georgia Supreme Court had an interpretation of a provision and then the constitution was amended on a large-scale basis and that provision stayed, then the view is that the writers of that particular constitution were aware of this Georgia Supreme Court opinion and did not intend to change it in any way. So that’s locked that provision in, almost in perpetuity. And so, I think some things are certainly easier because we have more modern language, especially with the amendments, but some things are a little bit harder because of these interpretative conventions and some of the difficulties with the direct-to-the-people voting that we’ve discussed. So I think there are things that are easier, things that are harder, but I don’t think that it -- I don’t think it makes it more defensible to do it because I think it’s our duty as judges to interpret what the law is. And whether you’re at the state or the federal level, the Constitution, until it’s changed, is the law, and it’s our job to figure out really what that said and to give our best effort and use all the tools that we have.

 

Hon. Joan Larsen:  Okay. So we’ve talked about federal courts, and we’ve talked about state courts. And I don’t want to put too much burden on Professor Meyler, but I don’t think we should neglect the academy. And so, I have two broad questions. The first is probably directed specifically to Professor Meyler, which is she’s an actual legal historian, and so, one question I have is how does a historian approach originalism, the process of divining the public meaning of a particular constitutional provision. And does that differ from the way that courts and judges might do that, or is it the -- basically, the same project? So that’s my first question. And then, I guess, the second question would be are the law schools helping. Are they helping us to -- helping our -- the students to become practitioners who can deploy these tools?

 

Prof. Bernadette Meyler:  Great. Well, thank you so much for giving me that opportunity. So I would say that historians -- and I’m not a PhD in history. I’m a PhD in English, so I think of myself as doing work on kind of interpretation as well as history, although my work was in early modern England. And I think that one way in which historians approach originalism may be differently than lawyers or practicing lawyers does have to do with the resource question that came up earlier because, I think, we have more opportunity to delve in-depth into particular provisions over a longer period of time. We can do archival research that might take a very long time.

 

I had a project that dealt with the New Jersey decisions, pre-Constitution, of the various local courts in New Jersey. And it turned out that the archives and records in New Jersey couldn’t find the materials for a year, but then, that was fine because my project could take two years. That would not be okay on an appellate court level. So I think that that’s one way in which there is a big difference.

 

Another difference, I think, has to do with one of purpose. Right? So my colleague, Jonathan Knapp (sp), has recently written a book on originalism and history. We are -- he is bringing forward various ways in which historians would critique the practice of originalism for contemporary purposes and looks at a variety of different factors of why there might be a different objective in unearthing the history as opposed to applying it today. And one of the main issues really has to do with context, right, so that if we’re bringing to light some original meaning of a clause from 1789, then we may be taking it out of the context in which it was created. There may be -- according to Jonathan’s account, a written constitution meant something different in the 18th century than it does today. By deracinating the -- a provision from the general constitutional context, we’re misunderstanding it.

 

Now, I think that it’s important, nevertheless — and this is sort of my interpretive lens — to try to create some form of continuity between the moment of the Founding and today, that we can’t just take it as an alien document that was one thing then and is another thing now so that there is a need to engage in interpretation in the same way as we would try to interpret Shakespeare today and have a relevance for Shakespeare today. But I do think that because historians have more, say, time on their hands to engage in the effort that there’s going to be a survey of more sources. There’s going to be more openness to a less determinant meaning. Right? So I think that a lot of the clauses, if you look at a lot of the original materials from the colonies as well as from England, you see that there isn’t necessarily one determinant meaning that can be pinned down of the common law background of the Constitution. I think that’s not as much of a problem for historians as for judges who are trying to apply the Constitution in the present.

 

And on the front of our law schools helping, I think it’s an interesting question of what exactly the law school pedagogy is now. So teaching a first-year law school discussion seminar on histories of legal education and if you look from Langdell, who founded the American legal education system through the present, there is a remarkable continuity, actually, of what are the required first-year classes, and based on Langdell, we focus almost entirely on cases. Right? And that’s the -- case method was kind of sanctified in the late 19th century as the way that we approach teaching law students. And I think that some originalists, certainly my colleague Michael McConnell is among these, have kind of brought in more original sources in teaching the Constitution. I bring it in in my classes sometimes. And in other classes, we have deep dives into history.

 

There’s more interdisciplinarity, so I think that more historians are teaching in law schools by one count of one my colleagues. At a meeting recently, he thought we have nine legal historians on the faculty. So there’s an effort to kind of bring in more of those perspectives. But I think that actually, in the last 150 years, law schools have changed less than we might think and that the case method is still the dominant method and that that means that precedent rather than original meaning tends to be what’s focused on.

 

Hon. Jason Miyares:  I think there is an enormous crisis in higher ed in general, but I also think, in law school, you have a suffocating level of political correctness and progressive orthodoxy that has a view of originalism as immoral, and therefore, they won’t teach it, or if they do teach it, they play lip service. And think of the utter shock for so many of these law school graduates that suddenly are encountering judges that have that as part of the expectations. And I think you have a real crisis right now. You have elite law schools, in particular, that are preaching diversity in everything but thought. There is simply almost virtually no ideological diversity whatsoever. And I think that is creating a real, real problem right now.

 

We have a robust intern program in the AG’s office, so we get students from both Ivy League schools and state schools in Virginia. And I will tell you the conversations that I’ve had with so many of those young students who are incredibly bright that are interning in our office -- the only word I would use to describe how they are seeing America, in general, is disdain, utter disdain. And they are really struggling right now with self-censure ship. The leave of fear that these students have on these campuses is palpable, and it is not conservative professors. And so, I -- it is one of the most troubling, long-term trends that I see right now for this country, in general, when over 50 percent of those ages 18 to 24 say, for example, that Hamas is justified in slaughtering innocent men, women, and children, and less than a third say they have a love of America. I don’t think that happened by chance, and I think, unfortunately, what you’re seeing in our undergrad campuses, I would multiple it even higher in so many of our elite schools. So I think they are not equipping students to come out properly trained in how to look at originalism because, like I said, they view originalism as immoral. And I think it is a real troubling long-term trend in higher ed right now.

 

Hon. Paul D. Clement:  And just one thought on this. Look, I love legal historians as much as the next person, but I don’t think the solution to this problem is adding legal historians to law school faculties. And part of it is, I think, we’re -- by the time we start focusing on originalism and the work of legal historians — and again, I don’t mean to denigrate that; that’s -- there’s a reason that’s always been a discipline, even back in the ‘70s, when the Supreme Court didn’t give a fig about originalism — but it really is a little bit separate. And I think that the way that -- the best thing a historian could do is -- could unearth some new thing that nobody else knew was not part of the original public meaning, or a lot of what of legal historians spend their time doing is coming up with a revisionist history so everything we thought we knew about something gets turned on its head. And I would imagine there’s a few people in academia whose whole project in legal historian -- in legal history is really to defeat originalism and show that you can come up with a counter-history to everything. And that’s why I have to get back to the project, and I think Judge Ho had it exactly right when he said the project is text informed by history and tradition.

 

And so, I think we may be overmystifying originalism to the point where, oh, no mere lawyer can do this and you need a legal historian to do this. And if that’s the case, then I kind of think that either the Supreme Court took a wrong turn or we all took a wrong turn by going getting our Juris Doctors instead of our PhDs in history. But I don’t think either the Court or this group has taken a wrong turn. I think we just got to get back -- that, yes, history and tradition is important to inform the text. Part of the reason that Justice Scalia was on about this project was to constrain the discretion of judges and to give them clear targets to shoot at that are consistent with life tenure and judicial modesty. And part of the reason that you want to have more focus on text, history, and tradition is in lieu of an intermediate scrutiny rubric where any judge can come up with any result they possibly want.

 

So I just think it’s important to kind of demystify this a little bit, and the -- in a sense, the question is not, “Let’s get to the absolute best historical account of some incident,” but it’s really just -- it’s a little less daunting. It’s just, “Okay, there are these words. These words are our Constitution. They were ratified at a particular time.” If there’s a particular ambiguity, the history can help. If there is an unbroken tradition that goes back to the Framing and somebody’s telling you that, “That’s actually been unconstitutional since 1789, just nobody but me was smart enough to figure it out until now,” those are all things you should be skeptical about. But it's not that hard a project, and at the end of the day, it all gets back to the text anyways.

 

Hon. Elizabeth Wydra:  And I think, just to follow up on what Paul said -- maybe I’m just agreeing with him because I only have a JD and not a PhD in history as well, but I think it’s also just what we’re teaching about the Constitution. What I do in my daily work is very focused on the Reconstruction Amendments, but I think so many folks, when they think about the Constitution or when they think about originalism, they think of the Constitution as it existed in the 18th century. And even law students, I think, do not have a -- to the extent they even get an education on the 18th century founding of the United States Constitution, they have even less of an education on what many have called the Second Founding that happened after the Civil War. And that doesn’t have to be ideological.

 

Honestly, teaching the Constitution should be something that is cross-ideologically embraced. You can critique it, of course. You can embrace it. But I think, certainly, knowing it is powerful as a lawyer, as an American. And I think that it’s also very interesting to look at the way in which the amended Constitution really writes across the face of our national charter our story of national progress in addition to constitutional progress. And so, I think including that in more law school constitutional law classes would be incredibly useful.

 

And then, of course, to second Paul’s point about it isn’t this mysterious PhD practice -- but I think it’s also interesting to students to see the ways in which you apply what can seem like distant history to very current debates. And I know when I speak with students about how a Fourteenth Amendment originalist argument relates to reproductive justice, they find that very interesting and, similarly, with other issues. So I would love to see more Constitution education on that front in law schools, and it wasn’t really there when I was at Yale, so Yale, call me.

 

Hon. Joan Larsen:  All right. So I thought we might take some questions from the audience, if people have questions. I’ve now said, “Questions,” twice, and I’m going to say it again. It should be a question. That ends with a question mark. There are microphones. If you can make your way to the microphone, then we can hear you. And also, one more thing, tell us who you are.

 

Coach Weinhaus: Hi. Coach Weinhaus for Yeshiva University, or UCLA, and Abusive Discretion. The panel did an excellent job, exploring sources of methods of originalism, and Mr. Clement evoked judicial humility. And I’m curious how do we, as a society, identify judges who will be able to stay true to originalism and then, keep choosing, I guess, to limit their own power through other forms of discretion?

 

Hon. Joan Larsen:  Well, I think the confirmation process is designed to do that. The appointment and confirmation process is designed to do that. I think that when presidents are selecting judges, they are certainly entitled to ask about methodology, not about approaches to particular questions but certainly about what the judges’ political -- not political philosophy -- judicial philosophy, not political leanings, are. So I think that’s the process we have in place for dealing with that question.

 

Hon. Jason Miyares:  I would say this -- your question’s about -- where society’s impact on this. I think it’s going to be very, very difficult for, from a larger perspective of where society is -- I was reading a social scientist who’s talking about the decoupling of purpose in society, and he was not a conservative. He made this observation. I thought this was fascinating. He said, “We are the first society in human history, in all of human history, to reject the wisdom of those that have come before us.” It is a complete phenomenon in Western Europe and North America.

 

And if you go to Africa, if you go to Asia, if you go to Latin America, they have reverence for those that have come before and their wisdom. And it is only a recent phenomenon in the last several decades, the last 30 or 40 years, in which Western society has made the determination in a lot of, I would say, elite institutions that we’re going to simply reject those that have come before us because they have nothing to offer us. I think that permeates in almost everything that you see in a larger society, so I think that it is -- it’s -- our originalist judges, given what I’ve just described is having in academia -- I think it will get probably more difficult moving forward. Even though you have seen, I think, originalism become much more broadly accepted in a variety of legal circles, I also think it is also going to be more challenging.

 

Hon. Joan Larsen:  All right. It’s hard to see over here, but we have a question -- oh, it’s Roger Pilon.

 

Roger Pilon:  Yes. Yes, it is, from the Cato Institute. Thank you, Judge Larsen. My question is whether Judge Ho’s clerks may have been right when they asked whether even appellate judges should take their oath more seriously to the Constitution rather than to precedent. And I give you the important case of 1995, U.S. v. Lopez, where old Judge Harwood [sic], on the Fifth Circuit, entertained the argument from a young public defender in that case who had the effrontery to say that the Commerce Clause does not authorize Congress to enact the Gun-free School Zones Act. That power belongs to the state of Texas. But for the fact that Garwood said, “He’s right,” that case probably would not have made it to the Supreme Court. But in so doing, Harwood [sic], who, of course, was around in 1937, said, “Maybe the Court got it wrong on the Commerce Clause in 1937.”

 

Hon. James C. Ho:  So if the idea is that Judge Garwood’s opinion in -- at the Fifth Circuit level in Lopez was a defiance of Supreme Court precedent, I’ll be candid. I’m interested in that. I’m going to go look at that. I was not aware that it was literally defying Supreme Court precedent. That’s inconsistent with all the cases we talked about in terms of Agostini and Rodriguez. The Supreme Court has told us repeatedly not to anticipate.

 

Roger Pilon:  Well, professors had to rewrite their casebooks after the Supreme Court upheld Harwood [sic] --

 

Hon. James C. Ho:  Well, sure, in the sense that the Commerce Clause had not been used to impose limits on federal power until Lopez and Morrison and what have you. But that’s different from saying that Lopez is literally irreconcilable with cases like Wickard, and if I recall, the Supreme Court itself reconciled those opinions. So like I said, I’m always open-minded, always open to being proven wrong. If there is an argument that Lopez was correctly decided as an originalist matter but completely insubordinate, from a Supreme Court precedent matter, that’s news to me, and I’m -- certainly would be interested in learning more about that.

 

Hon. Joan Larsen:  All right. We’ll go over here to the left.

 

Hon. John Curry:  Okay. Thank you. Judge John Curry from Chicago. Judge Ho, you pointed out that sometimes there’re somewhat politically motivated textualism arguments, and they may be rooted in some community or some political object. Clearly, in the progressive field, let me sort of sketch out what we see. The academy will generate some sort of progressive perspective, and that may mean changing language, using language in a different way. Then, the general media picks it up, and then, the politicians pick it up, so we have a new meaning, which is really rooted in the left or progressive point of view. And then, that’s used as a fulcrum for arguing a case, saying, well, this is what the text in this law or the Constitution says, and it really means this.

 

And I think the example you gave that, well, that could be shown to be originating in a community as opposed to really what the text is about, the original public meaning of the text. Wouldn’t you think it would be a good idea when this occurs to -- for a judge or an advocate in a brief to actually point out, “This is the root. They’re arguing this is what this means, but this is where it rose from. It started out at the University of California, Berkeley, and then, The New York Times picked it up, and then, certain political operatives have generated this. And that’s not truly the meaning that was in this statute.” I wonder if you think that approach would be useful. I think it would be useful to see that read so you get out the fact that this is not really an accepted public meaning but a politically motivated meaning.

 

Hon. James C. Ho:  Yeah. I would just say I think I sort of noted earlier I think we all agree that we’re always interested in more information. I think your question, if I understand it, sort of reminds me of what Justice Thomas has often said, which is -- I forget him metaphor about adding cars to a train but then asking the question, “Are we even going in the right direction?” So certainly, let me just use this as an opportunity to kind of comment on what Elizabeth said earlier, which is — and I agree with it — which is originalism properly done isn’t conservative, isn’t liberal. It’s just lawyering. And if that’s the goal, I do take it -- I do take some solace -- we were talking about the selection process in the first question. We now have a consensus at least in terms of what people say, which is the judicial function is, in fact, an originalist function.

 

Swearing an oath to follow the Constitution means you will actually follow the written Constitution. At this point, I’m not aware of anybody who openly defies that. How good we are -- each and every one of us is actually doing that and doing it faithfully and following Justice Scalia’s principle that a bad judge was -- a judge who always likes the results of their decisions is a bad judge. I think that’s a pretty good principle to go by, but originalism properly done is steadfastly neither progressive, conservative, liberal, whatever terminology you want to use.

 

Hon. John Curry:  Thank you.

 

Hon. Paul D. Clement:  Yeah. And the only thing I’d add is just, again, getting back to, I guess, what is my theme, which is originalism isn’t something separate. It’s just one mode of trying to get the text right. And so, the principles that you’re talking about in terms of dealing with history aren’t really any different from the principles that I think you’re supposed to use when you’re interpreting statutory text, and you look at a bunch of dictionaries, and there’s one outlying dictionary, and you try to figure out, well, what’s going on with that one outlying dictionary. And Justice Scalia wrote an opinion for the Court in the MCI against AT&T case that’s had a second life as part of the major questions doctrine. But at the time, it was famous because it was the first time that Justice Scalia just ripped a new one into Webster’s Third.

 

But what generated that scorn for Webster’s Third is he was looking at a whole bunch of definitions of the word, “modify,” and then, he sees one that just is completely out of whack with the others. And then, he went back and realized that, okay, Webster’s, when it put out its third dictionary, decided to stop trying to figure out what words actually mean and just tried to essentially assemble widespread misuse of words and make that one of the definitions. And so, based on that, he threw out one definition of modify that didn’t fit in with any of the others.

 

And I think, when you’re looking at history, if at a certain point -- it seemed like everybody understood that a term meant a certain thing, historically, but then, all of a sudden, a revisionist school comes along -- you have to be cognizant of that but not because you have to be a great historian, just because you have to approach the job of interpreting the text the same basic way when it comes to historical sources as with respect to just the basic text and how you’d interpret a statute.

 

Hon. Joan Larsen:  Okay. Sorry. The light is in my eyes, so I can’t really see you, but you can speak up and tell us who you are and what your question is.

 

Bryan Bishop (sp):  Yeah. Hi. Right. I’m here. I’m Bryan Bishop from the Stephen Hopkins Center for Civil Rights in Rhode Island. And I’m wondering if you view dueling traditions, which perhaps are underappreciated in comparing the Roe and Dobbs decisions because people kind of go to the substance, and the penumbra is first. I’m wondering if dueling traditions are more a distraction from the originalist project or perhaps an invitation to broader subscription to the project.

 

Hon. Joan Larsen:  I’m not sure I quite understand the question. Dueling --

 

Bryan Bishop:  What I’m suggesting is that if we’re debating traditions and to an extent if that comes in in looking at our legal traditions, whether that might actually interest people who think that originalism has a conservative or a right-leaning valence. They might realize that tradition doesn’t necessarily always cut that way, that maybe we should play on the originalist field and try and tease these out. Or is that rather simply an excuse to overthrow originalism?

 

Hon. Elizabeth Wydra:  So I think it’s a really interesting question, and certainly, part of what I do every day is try to convince my fellow progressives that we can and should play on the originalist field, and we can often win on that field as a substantive principled matter but also, frankly, as a strategic matter, given the makeup of the Supreme Court and many of our appellate courts across the country. One thing I think that -- you mentioned Roe and Dobbs and dueling traditions, and I think that that case and the Fourteenth Amendment cases generally are really interesting because the Fourteenth Amendment was — not to use tech bro slang — but was intended to be a constitutional disruptor. The folks who were writing the Fourteenth Amendment wrote it and thought it would be a constitutional disruptor to many different aspects of our constitutional order, that it -- they intended to turn on its head the relationship between state and federal citizenship. So instead of having state citizenship primary, they thought that this, especially with birthright citizenship provisions, etc., federal citizenship would become more important in many key ways. Similarly, disrupting a tradition of discrimination and opposition, the most obvious of which is with respect to the horrible institution of slavery, but they also considered other ways in which people had been suffering conditions of unfreedom.

 

The Thirteenth Amendment guaranteed freedom in the United States, and the Fourteenth Amendment, in many ways, answered the question, “What does it mean to be free?” And in doing so, the drafters of the Fourteenth Amendment intended to disrupt many discriminatory traditions. So when you’re going to engage in a text and history analysis of a Fourteenth Amendment provision, to me, it’s important to take into account that your traditions you look at might in way be different because the text was put into the Constitution in order to disrupt many of these traditions. So that’s something that I think is -- we talk about a lot, and I’d like to see more people talk about it. So thank you.

 

Prof. Bernadette Meyler:  Yeah. I just want to add that I think that that’s true actually even of the original Constitution. You can look at the Suspension Clause and wonder how much of it is about enshrining what came before and how about deviating from that. But I think the other point I would make is that it’s not, say, just going to Roe and Dobbs but even going back to what Judge Larsen mentioned before, the Crawford case. I think a lot of the Sixth Amendment originalism decisions have been embraced by progressives as well as some conservatives. And so, there are plenty of ways to, I think, use originalism in different political valences or for different political ends as well.

 

Hon. Britt Grant:  If you look at, for instance, the Heller decision, both opinions in that case were deeply originalist, and one, of course, got more votes than the other. But I think that’s a really good example of “both sides of a question” digging into the original sources and trying to use those to discern the meaning.

 

Hon. Joan Larsen:  All right. We’ll take a question over here on my left.

 

Art Macomber:  Thank you. Art Macomber, Coeur d’Alene, Idaho. My question is really for the judges, and I’m wondering about the analytical framework. I think Mr. Clement said, okay, so you state with the text, and then, you have history and tradition. So the final two are kind of a swamp, and I see that, for the Founders, they were looking backwards. And I think if you don’t start with Magna Carta and move forward, you don’t really get an understanding of how -- we look backwards and see the Constitution. They were setting it up and looking forwards, given what happened in the past.

 

And my question is this I know you have subject-matter considerations, the First Amendment obviously different than the Third Amendment. Right? History and tradition on the Third Amendment is pretty well capped. But how do you, as a judge, approach this issue? What is the analytical framework for the history and tradition swamp that you engage in — step one, step two, step three? And if you could talk a little bit about that, it would be very helpful. Thank you.

 

Hon. Britt Grant:  I think it’s interesting, again, as a circuit judge, certainly, we have occasions to look at history and tradition, but again, I think, less so than the Supreme Court. So I think, for me, sometimes it comes up in what we might think of as smaller issues. I mentioned that a little bit before, issues that are not on the front pages of the newspaper. And I think that’s where you can look back and see earlier statutes. How did -- maybe even if you’re looking at habeas corpus, right, Magna Carta, and how did it go from there? What was the original understanding of habeas corpus at the Founding? How did that impact its development as we went through the 19th and 20th centuries?

 

Even those questions, I think, can sometimes inform, say, an EDPA issue that we’re dealing with today. And so, I think, that’s not an issue where you’ll necessarily have a brief that starts with Magna Carta, but I think, once you start to dig into the text and look at things that happen with statutes and try to understand what framework, even 20 and 30 years ago, people were working within. I think that you try to look at those questions at every step of the line. So to me, originalism doesn’t start and stop around the Founding era. It’s a developing process. When you look at the developing understandings as we have statutes that have gone through their own processes and their own development, I think it really help you understand, as a judge, what that text means when you look at the text that came before it and the practices that came before it.

 

Hon. James C. Ho:  I might just lightly try to merge the premise of your question with what Elizabeth said earlier. What I said earlier was I think there was at least some sense that one way to approach this is text. That’s what we’re doing. But it can be, can be, informed by history and tradition. But as Elizabeth points out, there are times when the drafters, whether it’s a constitutional amendment or a statute or what have you, there are times when the text is pathbreaking, right, when the whole point of a text is to go in a very different direction.

 

Now, obviously, you need to figure out when those situations exist and when they don’t, and we have certain kinds of interpretation. The one against lightly assuming variations of common law would be one example where we don’t assume a pathbreaking moment, but when the text does break a path, suggest a complete departure from the past, then, history, tradition obviously, presumably, could play a different role in that situation. So it’s just a matter of figuring out which situation you’re presented with.

 

Hon. Joan Larsen:  All right.

 

Will Trachman:  Hi. Will Trachman from Mountain States Legal Foundation.

 

Hon. Joan Larsen:  Yeah.

 

Will Trachman:  We don’t write on a clean slate very much, not all of us are practicing before the Supreme Court. Is there an opinion on whether litigators can use originalism when there’s already a balancing test or a tier of scrutiny at play? So to say, well, this is not a compelling interest that would have been compelling to the Framers or in the original public meaning, or this wouldn’t have been narrowly tailored to the Framers. And separately, we have a case right now, representing a student who was prohibited from wearing the Gadsden flag as a patch on his backpack, and we’re arguing under the Tinker standard. So could we say, “Well, obviously, it wouldn’t have been a substantial disruption in the 1860s to wear a Gadsden flag on your backpack?” How does originalism interact with current balancing standards?

 

Hon. Joan Larsen:  Yeah. That’s a great question. First of all, I don’t think you’re going to get any of the judges on this panel to opine on your case. So we’re not going to do that. But I think, as a general matter -- look, if the Supreme Court has said, “Here’s a balancing test, and you have to apply the balancing test,” the judges, for the most part, are going to apply the balancing test. And if there are cases in the circuit or coming from the Supreme Court that cash out what that balancing test looks like, I think the judges are going to be inclined to say, “Well, this is how we’ve applied this before. The cases tell us that this factor on this factor. We look at these things, and your case looks exactly like that one or looks different than that one.” I think that’s what most judges are going to do as a first line.

 

That being said, if you can make a compelling case either that there’s an alternative to the balancing test that we ought to be taking very seriously, I don’t think any of us are going to not apply the balancing test we were told to apply. But it might provoke that concurrence that says, “Hey, you should replace that with something else.” And also, I think it’s an interesting proposition to say, “We should think about how this would have balanced out at the Founding.” If you’ve got that case that you can make, I think I share Judge Ho’s perspective. Bring us the information, and we’ll see how it cashes out. Again, I don’t know about your particular case so not commenting.

 

Hon. James C. Ho:  Yeah. Look, if you think you have an originalist argument, I would make it. Absolutely. I’m reminded of what Justice Scalia often said. Justice Scalia famously was pretty categorical, if not actually categorical, about legislative history, and yet, he would repeatedly tell lawyer audiences, “If you have a legislative history argument, you absolutely should make it.” He may not take it. He may not agree with it. But some of his colleagues might. Some of the judges on other courts might.

 

And so, I would view things from a practitioner’s standpoint in that lens. If you have -- presumably, you think you have precedent on your side. You should cite the precedent. But I would always be prepared -- if nothing else, at oral argument, we also train, whether it’s me or me mooting other people in my office, have a backup argument. Have multiple arguments. You should win based on a precedent. You should win based on originalist analysis. You should win based on, frankly, policy arguments because some judges may pay attention to that.

 

Just frankly, to me — and this maybe goes back to the General’s comment about the state of legal education — is -- it just strikes me as woefully incompetent, educational malpractice, for law schools not to teach every tool in the tool book, if, in fact, your avowed object is to train legal professionals.  The problem—I think General is absolute right—is law schools aren’t doing that anymore, at least not -- maybe not -- categorical, many law schools -- certain law schools may be focused more on indoctrinating and sort of just wanting to inflict a certain sense of political change rather than doing what I thought they were doing, which is training future lawyers. And so, future -- lawyers of all kinds, including future lawyers, need to have every tool in the toolbox so that you can deploy for your clients. I would have thought that that would be uncontroversial, but apparently, that’s the controversy of the day.

 

Hon. Britt Grant:  I’ll say I think you should absolutely make originalist arguments, if you have them. And not only might it inspire concurrence, but it could inspire an “and also” in a majority opinion. There’s important scholarship from, say, Professor McConnell on how Brown v. Board wasn’t written as an originalist decision, but it certainly is very consistent with the original meaning. And so, I think all judges want to make their opinions as persuasive and rock solid as possible. And if there’re originalist arguments that point in the same direction, especially as whatever the result is of the balancing test that we’ve been instructed to use, then I think a lot of judges would be really excited to include those arguments in their opinions to fully bolster the decision.

 

Hon. Joan Larsen:  Professor Meyler.

 

Prof. Bernadette Meyler:  Yeah. I think this is a very interesting question because a lot of recent Supreme Court cases have kind of called into question some of the tiers of scrutiny or other tests that have traditionally been applied since, say, the 1940s. And so, I think, one strategy might be to say, “Well, in Bruen, there seems to be a rejection of those kinds of tests, so maybe there’s some uncertainty about whether the Supreme Court is actually endorsing tests along these lines in other cases.” But then, also, I think there’s a counterargument about to -- maybe to the Supreme Court about rejecting these kinds of tests because I think, as Judge Ho had mentioned, there may be some evidence of the Founding about some forms of balancing. Right? If you think about Justice Marshall using a question about is it necessary or absolutely necessary -- what is the level of review.

 

And then, secondly, there is a question about how much originalism really also imports a particular method of judging. Does it include judicial practices from the Founding or not? And then, I think, third, there’s also a practical question about implementing doctrine in the lower courts, whether tests of -- balancing tests or other things are just more feasible for lower courts to implement as a routine matter. So I think there are some interesting arguments on either side.

 

Hon. Joan Larsen:  All right. Let’s move here to the -- my left.

 

Violet Grayson:  To what degree -- I’m Violet Grayson. I’m a practicing lawyer. And to what degree do you experience tension between originalism and textualism?

 

Hon. Joan Larsen:  I’m sorry. There was just noise in the hallway. I couldn’t quite hear it.

 

Violet Grayson:  I said, “To what degree do you experience tension between originalism and textualism?”

 

Hon. Joan Larsen:  Oh.

 

Hon. James C. Ho:  I’ll just take a quick stab.

 

Hon. Joan Larsen:  Yeah. Go ahead.

 

Hon. James C. Ho:  I’ve never seen any tension between the two concepts. Obviously, they’re two different words that are used. Typically, textualism is associated with statutes. Originalism is associated with the Constitution. But I don’t see them in tension. The way I have always thought about it, and this could be completely wrong, but just how I think about it is we talk textualism when it comes to statutes because statutes typically -- just read the text, and you can kind of figure out there are more words. There’s more detail. And so, you can kind of begin and end with text.

 

Whereas, constitutions, and certainly the federal Constitution, there are times when you have few words, and you need more to decide a particular dispute that’s in front of you. And so, you look behind the text to figure out, well, what do we mean. What did the Founders mean when they drafted these terms? But to me, it’s the same conversation we’ve been having earlier. We’re looking at text. If you need more than the text, you might need to be informed by things behind the text: history, tradition, dictionaries, what have you. But I think it’s all the same project. At least, that’s how I’ve always conceived of it.

 

Hon. Jason Miyares:  Yeah. I would -- kind of a different perspective. Prior to my service as Attorney General, I served in the General Assembly in the Courts of Justice Committee, and we used to always say, “We don’t vote on ideas. We vote on bills.” And it was all -- exactly to Judge Ho’s point, looking at how we were going to be changing the code, and the one thing we always stressed was there was going to be a judge, whether they’re in Fairfax or Galax, that is going to be trying to interpret how we have amended and changed the code of Virginia. And they are likely not going to have the benefit of watching what the meaning or the intent or the testimony of the patron of the legislation that’s seeking to change whatever section it is, 18.2, whatever section of the Virginia code. So I thought it was -- we always had the attitude that it was so critically important to make sure the text, the actual language -- and we argued over single dot and comma, as lawyers often do, precisely because we had the idea that a judge is going to have to read the plain language, and it needs to be crystal clear. And oftentimes, bad bills make bad law and then bad precedent.

 

Hon. Elizabeth Wydra:  And I would just add I think that’s a really interesting question because the idea with textualism is that you’re sticking to the text. Now, of course, sometimes, the text is -- needs greater context, or you can understand it better if you look to these other sources. And I normally think that that’s a great idea. One of the places where I do feel like there’s tension, however, sometimes, is when, through the originalist project, you’re using history or tradition to subvert the text or to make the words mean something perhaps other than you might think they mean based on the plain text of the constitutional provision, for example. And so, when that happens, I’m not saying it’s always wrong, but it certainly makes me pay a little bit more attention to what is actually happening in that instance. I think of this particularly with respect to the Fourteenth Amendment.

 

Hon. Joan Larsen:  All right.

 

Aaron Watt:  Good morning. Thank you to all the panelists for being here. My name’s Aaron Watt. I’m a 3L at Scalia Law School. I have a question about the originalist project. Someone else asked about sort of the order of operations, about starting with text. And I think back on my federal courts class about sovereign immunity. I think it’s a good example of something where it seems like we start from history and tradition, and we say we really didn’t mean to derogate from that.

 

I wonder if there are other places where it’s appropriate to start from the opposite direction as well. Are there rights that were so taken for granted up through English common law into the United States that it would be more appropriate to look to see what the foundational rights and to see if the law has derogated that? What are your thoughts?

 

Hon. Joan Larsen:  Is that a question about common good constitutionalism?

 

Aaron Watt:  I don’t think it is. Actually, I don’t support that perspective. But just from an originalist perspective, if what the people thought they were doing was incorporating rights, privileges, or immunities or whatever it was that they had taken for granted that existed, if that’s what the original Founders thought they were doing, is it appropriate to start from that place when evaluating just particular rights at least?

 

Hon. Joan Larsen:  So maybe that’s a question about the Ninth Amendment. Maybe I’m not understanding the question. If we could take a particular constitutional provision, so the Confrontation Clause or the right to jury, as an example, so if we took the right to jury, how does that -- how does your question cash out there? Or are you asking, “Are there rights that the Founding generation would have understood to be a part of the set of natural rights,” for example, that they wanted -- that when they talked about the other rights retained by the people, that’s what they meant to enshrine? Those seem like two different questions, and I’m not quite sure which question you’re asking.

 

Aaron Watt:  Sure. And it’s hard for me to come up with a starting point in the text because, of course, then, I would have started from the text. This is part of why I wanted to --

 

[CROSSTALK]

 

Hon. Joan Larsen:  And you didn’t -- the whole premise of your question is not to start with the text. Yeah.

 

Aaron Watt:  And it’s at least why I bring up sovereign immunity as an example. And so, I think about things like parental rights. Is that something that would have been taken for granted as a right? Where does that right originate from if it doesn’t originate from the text? And so, maybe my question isn’t clear enough quite to respond to, but I wanted to give you what I’ve got on it anyway.

 

Hon. James C. Ho:  I’m going to go with the fact that you’ve sort of hit sovereignty immunity twice, and I’m going to take that to be the premise of your question. And I just lightly disagree or at least offer a different take on your premise, which is to the extent you’re saying — and this is going to get nerdy really quickly — to the extent that your point is the Eleventh Amendment obviously talks about sovereign immunity in some ways but not in the broader way that we have in various settings -- diversity, which is a federal question, etc., etc. I don’t see that as anti-textual. I see that as the Eleventh Amendment reflecting drafters thinking that the Supreme Court got cases wrong. I think it’s Chisholm -- or I forget this area, now. It’s been a while since Fed Courts for me.

 

But it’s really not the text that’s doing the work, at least the text of the Eleventh Amendment. It’s the text of Article III, and the drafters, rightly or wrongly, thought, “You know what? Supreme Court, you got it wrong, so we’re going to lightly -- we’re going to overturn your case through the text of the Eleventh Amendment, but obviously, we’re restoring a broader conception of state sovereign immunity that we thought was already in Article III or perhaps the Tenth Amendment.” I think multiple Supreme Court justices have said it’s wrong to use the term, “Eleventh Amendment immunity,” other than in those cases where it’s actually about the Eleventh Amendment. It’s state sovereign immunity that preexists the Constitution and wasn’t overturned by Article III. So I might disagree with your premise and, therefore, stick with the text.

 

Hon. Elizabeth Wydra:  I think it’s hard to think of a time when you wouldn’t at least start with the text. Privileges or immunities, for example, in the Fourteenth Amendment, is a broad term, but if you look at the original public meaning, there was a very clear understanding -- at least, the general concepts that were included. Now, whether it’s the Corfield v. Coryell list of rights, whether it was the first ten amendments plus -- you look at the debates, and you can see that the -- you mentioned parental rights -- that the right to form a family was included in those ideas of privileges or immunities. So I think it would always be right to start with the text because there’s a reason why they used privileges or immunities as opposed to some other term of relating to rights or liberties.

 

Prof. Bernadette Meyler:  I think it’s an interesting question because even if you look at Article III, there isn’t an explicit provision for state sovereign immunity in Article III. Right? So you’re implying something into the text, and I think that I would go back to Judge Larsen’s comment about the Ninth Amendment, or even the Tenth Amendment, that there are these provisions of the Constitution that are fairly broadly phrased and that do imply invocation of some forms of structure or rights that were preceding the Constitution. And so, figuring out which provisions are against that backdrop and which aren’t is one of the, I think, tasks of interpretation, even if you’re starting with the text.

 

Hon. Joan Larsen:  All right. We have time for just a couple more questions, so let’s take one over here on the left.

 

Clarke Forsythe:  Clarke Forsythe, Americans United for Life. If the focus of originalism is the ratified text, which, if any, outside voices are relevant to the ratified text?

 

Hon. Britt Grant:  I think it depends on what you’re using them for. I’ll be interested to hear from our scholars to my left, but I think voices are not -- I don’t think that any voices are appropriately used to override the text. But to the extent that we can use different voices to better understand the text, then I think a lot of the comments from, really, all the panelists today have indicated that we can take those into account. I think Paul Clement had a lot of arguments about whether we should allow private voices to override public understandings, and I think that those questions are interesting. But I think, as long as we’re using them for the right reasons and placing them in the proper context, I think you can certainly consider and then put within the overall framework -- we’re happy to hear, I think, about a lot of voices and then give them whatever meaning they have, in terms of helping us understand the text, but not override the text.

 

Prof. Bernadette Meyler:  Yeah. I would say that, in my view, looking at the participants and debates, right, so a lot of these kinds of rights or provisions were subject of different debates or might have been subject to different laws in different colonies. So looking at the structure of those debates, I think, is particularly informative in understanding what the text means.

 

Hon. Elizabeth Wydra:  Yeah. When you’re looking at an original public meaning analysis, which is the dominant form of originalist analysis after you look at the text, then, of course, you are going to include voices other than just those who were the ratifiers because they are included in the public. But yes, obviously, it implies some level of publicity. So Paul’s private diary, I don’t think, would count unless excerpts of that diary were published à la Federalist Papers and distributed to the public. But we look at newspapers. We look at convention debates. And certainly, when I think about my particular area of expertise in the Reconstruction Amendments, there were a lot of these public conventions and debates. And so, there is really a rich history to be looked at there. And I think that as we get even more scholarship and have more sources, public sources, then that will be a really interesting rich debate.

 

Hon. Joan Larsen:  Okay. We are very close to being out of time, but there are only two speakers at the mic, and I just -- I have such a benevolent heart. So I can’t just cut one of you off, so it’s the lightning round, quick question, and we’ll give you each a quick answer. And then, we’ll adjourn.

 

Gabrielle:  Well, thank you. I really appreciate the love and benevolence. My name is Gabrielle. I’m a third-year law student from University of Miami. And all I wanted to ask touches upon what Miyares has said about the hatred of originalism in law school, and he’s absolutely right. And I ask this question because I think it extends from this very formulaic argument that they produce that because the Founders were wrong — at least in so far as who was afforded certain substantive rights — or that history was wrong for a period of time, that they must be wrong about the actual interpretation or meaning or scope of the actual substantive rights themselves, so we should just do away with anything they thought of entirely.

 

And of course, that ignores the beautiful design of our Founding document that, when we do extend rights to all human beings, we don’t have to do away with the whole document, and we have the most successful governance experiment of all time. So my question is how do we respond to this vitriol from the other side? Just because we have historical mistakes, it doesn’t mean that we should dispose of this.

 

Hon. Jason Miyares:  Well, this is what I would say. This idea that the greatest critique of originalism is we got to ignore the dead hand of the past, and as I had one intern tell me that the general sentiment from some of their law professors is why would we want to study dead white men? And I think it takes away the richness of the basic of the Founding where if you look at James Madison, he was obsessed with two things: both anarchy and monarchy. And so, how do we frame a government in such a way that can respect both the rights of the individual and the face and the passions of the mob but also make sure that part -- that power is devolved. And I think the other thing it takes away, which I think law students often are not taught, is just how obsessed Madison was going to the Constitution Convention on why democracy fails. He spent so much time looking at both Ancient Greece and Ancient Rome on what caused them to fall, not just forming the government. How do we create a system of governing that absolutely can self-perpetuate itself? And I thought that is greatly missing.

 

And it is the first written constitution in all of human history that actually limits what government can do and empowers the individual. It’s never happened in all of recorded history. And the other thing that makes me is a sense that we got to ignore a dead white man, and it’s not quite applicable, but my -- people ask me, “What kind of name is Miyares?” I say, “Well, it’s southern.” My family fled Cuba, and my uncle, Angel Miyares, when he was arrested in Cuba and he went through the humiliation of a mock execution, one of the things that he appealed to was, “You have no right to do this because I have certain unalienable rights of life and liberty.” In other words, he was appealing towards something that was a university principle laid, of course, by our Founders. Obviously, the Declaration of Independence is kind of the birth certificate later on for the Bills of Rights. So I think it is a passionate need to expose the fact that these university principles that have been appealed to to man’s better nature in every gulag, whether they’re in North Korea or Cuba or in Russia, and the universality of it that applies to all races and creeds.

 

And the point that I make is -- and when Dr. King made his speech at the Lincoln Memorial, he didn’t appeal to Rousseau. Right? He said he was there to collect a promissory note made to every single American — past, present, and future — of life, liberty, and the pursuit of happiness. He didn’t appeal to Confucius. He didn’t appeal to Rousseau. And if you look at simply -- when Dr. King taught at Morehouse College, do you know what he taught? Philosophy. Do you know what he assigned to his students? The greatest thinkers of Western Civilization. Look at the curriculum that Dr. King picked out and taught in his philosophy class at Morehouse College, and I think you should point to that, that there is a universal principle here that is oftentimes ignored and to tragic consequences on our college campuses, tragic consequences.

 

Gabrielle:  Thank you.

 

[Applause]

 

Hon. Joan Larsen:  Okay. So I hope you have a good one to take us out on.

 

Connor:  To quickly piggyback off of that question as well, my name’s Connor. I’m the President of the Student Chapter at William and Mary Law. What can students and young attorneys do to help circumvent that censorship on college campuses and in hiring practices? Many of us feel as if we have to choose between self-censorship and professional and even social suicide. So what can we do to bring in the next generation of originalist thinkers because I think a lot of us believe that we’re being -- we’re losing that platform. We exist, but the platform itself is shrinking and disappearing.

 

Hon. Jason Miyares:  I would just say real quick. Alumni should withhold their donations to their alma mater until they commit to ideological diversity, number one. [Applause] And I think -- and I do think that their -- and I’m a proud alumni of that same Federalist Society chapter at William and Mary. C.S. Lewis has a great line where he says, “The beginning of friendship is when you turn to somebody and say, ‘Oh, you too?’ I thought I was the only one.” Right? So I think there is both a power of the organizations like Federalist Society and others for people that have this originalist worldview to realize they’re not alone. And I think that’s critically important as well is to build up, continuing these different organizations that can foster and encourage the next generation.

 

Hon. Britt Grant:  I’ll say this: have debates in The Federalist Society. That’s, I think, one of the most fundamental principles of The Federalist Society is that there are important issues. Let’s hear both sides of them. If you’re not getting the originalist side at -- from the academics at your law school, have a debate. Invite people in. Let students hear. And I think more students will be persuaded, and they can feel like they can sneak in if they think the right side is also being represented. And maybe they’ll hear a different view and start to think about it more carefully.

 

Hon. Joan Larsen:  Okay. We are a little bit overtime, but I have to read you some things that I was told I must read. So I’m going to do it, and then, you can thank our terrific panel. So if you are pursuing CLE, we’d like to remind you to make sure you sign in and sign out once per day. If you did not sign in ahead of this panel, please do so now via the QR code in the program and also available at registration. Additionally, we would like to remind you of the Remnant Trust’s Rare Documents Exhibit located on the second floor in the South Carolina Room. You can access the second floor using the elevators located next to check-in. If you are ever need -- in need of coffee or a power strip to charge your phone or your laptop or your iPad, I suppose, throughout the day, these are located at the Mezzanine Level, accessible by the front elevators. There are no panels directly following this one, so we’d like to announce that lunch will be served shortly in the main hallway. Thank you very much. We are adjourned.

 

 

 

 

11:30 a.m. - 1:30 p.m.
Hyperextension? Federal Financial Agencies & Cryptocurrency Regulation

2023 National Lawyers Convention

Topics: Financial Services • Cryptocurrency
District Room
The Mayflower Hotel
1127 Connecticut Avenue NW
Washington, DC 20006

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Description

In recent years federal executive branch agencies have enacted a “whole of government” approach to hot-button topics like environmental, social, governance (ESG) and cryptocurrency regulation. This theory of policy administration combines the efforts of multiple executive branch agencies with different expertise and authorities toward achieving a singular objective.

Some of the agencies marshaled to address cryptocurrency regulation include the Securities and Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC), the Treasury Department’s Financial Crimes Enforcement Network (FinCEN), and the banking regulators. Jurisdiction is often complicated by the nature of a particular asset, administration changes, and agency leaders’ personalities and priorities.

How does current cryptocurrency regulatory policy align with the statutory authority and original purpose of these agencies? Are the agencies fulfilling legislative mandates to protect investors and promote safety and soundness? Or are they stretching their authority to achieve a policy outcome in the absence of legislative authorization?

This panel will examine the issue of cryptocurrency regulation and statutory authority of executive agencies.

Featuring:

  • Mr. Brian P. Brooks, Partner, O’Melveny & Myers; Former Acting Comptroller of the Currency
  • Prof. Chris Brummer, Agnes Williams Sesquicentennial Professor of Financial Technology, Georgetown Law
  • Ms. Caitlin Long, Founder & CEO, Custodia Bank
  • Prof. Christopher L. Peterson, John J. Flynn Endowed Professor of Law, University of Utah S.J. Quinney College of Law
  • Moderator: Hon. Patrick J. Bumatay, United States Court of Appeals, Ninth Circuit

Speakers

Event Transcript

Paul N. Watkins:  …Financial Services and E-Commerce practice group. We’re very excited about the panel that we have today. Before we get started, I want to mention an important housekeeping point. If you want CLE—and I assume you all want CLE—there are QR codes on your program, outside this door, in the main lobby. You need to scan those in the morning and then when you leave in the afternoon so that you get credit.

      This panel is sponsored by the Financial Services practice group. We now have a great webpage on the FedSoc site, where you can track all the events, all the webinars and articles and everything that the group handles. If you have ideas, please come speak to Nate. Speak to myself. We want to be targeting the issues that are most important for your practice and the issues that you’re seeing.

      Now, we’re pleased to have a fantastic moderator and panel, and it’s my privilege to introduce one of the most principled and hardest-working jurists in America today, the Honorable Patrick Bumatay.

      Judge Bumatay, after law school, began his legal career clerking for Judge Tymkovich on the Tenth Circuit. He then served in a number of senior and high-profile roles in the Department of Justice and finally served as an Assistant U.S. Attorney before being confirmed to the Ninth Circuit’s Court of Appeals in 2019. So, Judge, please take it away.

[Applause]

Hon. Patrick J. Bumatay:  Thank you. Thank you, Paul, for that introduction. We’ve been friends since our 1L year of law school. I think it’s safe to say that no one expected either of us to be on this stage today. So thank you for that introduction, and thank you for the invitation to be moderating this panel. And I think it’s a really important one as well.

It’s called “Hyperextension? Federal Financial Agencies and Cryptocurrency Regulation.” I think it’s safe to say that this is a new frontier of regulation. And I could speak for most judges in saying that our concept of ideas, like cryptocurrency, blockchain, and the like, is rudimentary at best. So one of the challenges I see when considering regulation in this space is educating the judiciary, and that’s only after there’s some consensus on what regulation we want. That’s why panels like this are so necessary.

So now, I’ll introduce our panelists. Our first speaker is Brian Brooks, a Partner at O’Melveny & Myers in Los Angeles and here in D.C. Mr. Brooks has had an interesting career on multiple sides of this issue. He’s been CEO of Bitfury Group and Binance.US. He was also Chief Legal Officer at Coinbase. In addition, he served as the Acting Comptroller of the Currency during the Trump administration.

Next, we’ll have Caitlin Long, Founder and CEO of Custodia Bank. Ms. Long has been a self-described “Bitcoin evangelist” since 2012. She’s also had a 22-year career on Wall Street and has served on Wyoming’s Blockchain Task Force. She’s going to talk about some interesting litigation going on between Custodia Bank and the Federal Reserve.

And finally, we will have Professor Christopher Peterson of the University of Utah College of Law. Professor Peterson was in the leadership at the Consumer Financial Product Protection Bureau during the Obama administration. He’s extensively researched the FDIC and the Federal Reserve. And in 2020, Professor Peterson ran for governor of the great state of Utah.

So before we get to Q&A, each panelist will now give their opening remarks. Brian, do you want to kick us off?

Brian P. Brooks:  Is that a question? I’m not sure if I want to kick us. Thank you for the introduction, and thanks everybody for being here. It’s a great time to have this conversation, I think. We’re having this conversation during the Supreme Court term where the future of Chevron will be decided. We are having this conversation at a time when the role and discretion of the banking agencies through Caitlin’s lawsuit is being decided. And these are really fundamental issues. So I think it’s going to be a great conversation.

I want to talk about a couple things here just to kind of introduce the topic, and then I think we’re going to have some great debate among the panelists. So the first thing I want to talk about a little bit is what crypto is and why it matters. I’m not going to presume a high level of knowledge—let alone enthusiasm—among this group, but I think I’m going to convince you that it’s a little bit different than what you think. And then I want to orient you to our administration’s approach to crypto regulation, which is I think it’s safe to say it’s not just different from, it’s literally the opposite of the approach of this administration. And you can make your own judgments about who you agree with, but it’s important to understand the paradigms.

So let me start with the concept of what crypto is. Crypto, I believe, is a species of one of the two macro forces that are reshaping the delivery of financial services globally and ultimately reshaping the financial system. So I’ve written pretty extensively about the idea that the two macro forces changing the way financial services are delivered are unbundling and decentralization. Let me just talk for 30 seconds about what I mean by both of those things.

So historically, in the United States, at least in the twentieth century and today, the concept of financial services revolved around the simultaneous delivery of three different services. And those services are deposit taking, payment processing, and lending. And there was a belief for a long time that the only way to deliver financial service was to have all three of those things sitting in the same place.

So, if you think about it, the only really efficient way to make loans is to have a pool of low-cost capital where you can earn a spread between the cost of raising the capital and the income derived by lending out the capital at a higher rate of interest. And so that is thought to mean that you can’t really be an effective lender unless you are also a deposit taker. And incidental to deposit taking is payment processing. After all, if you want to pay your cable bill, there has to be money on deposit somewhere that you can use to remit that payment. And thus, we came up with this concept of what was colloquially known in the twentieth century as the money center. And the biggest banks were called money center banks.

Technology arose—called the internet—which meant that some of those assumptions may no longer be true. They may have been vestiges of an era when centralization was necessary, and centralization may no longer be necessary. And the analogy that many people talk about in crypto is the post office analogy. So once upon a time, if you wanted to communicate with a person far, far away, you had to have a centralized aggregator of those communications. That’s what the post office was. So you would take all your letters on a Monday morning. Some were going to Salt Lake City and some were going to Miami and some to Utah. But you’d put them at one place, and the post office would then aggregate all the letters to Miami in one slot, and all the letters to Utah in another slot, and it would then farm them back out and deliver them.

With the rise of the internet, the concept of centralization no longer mattered. I can now send an email directly to you, and it does not have to go through a central repository. We can have node-based networks, and we no longer need the post office the way that we once did. And the metaphor for banking is very similar to that. It may be in an internet world that I no longer need to raise deposits in order to make loans. I can have peer-to-peer lending networks where in real time I can find a source of funds for my loans that way. So unbundling is a general feature of internet technology that is changing financial services.

The other feature—and this is where crypto comes in—the other feature, the other macro event that changes financial services, is decentralization. So, if you think about the way centralization works in the traditional financial system, the idea is that in addition to bundling all these services I talked about, you have a management team, and the management team is making decisions about which loans to make, which customers to onboard, which products and services to offer.

And this is why at a bank you’ll have a credit committee that at one bank might be willing to make oil and gas loans, and at another bank, they’re not willing to make oil and gas loans. One company might be long on commercial real estate, and another might make residential mortgages. But they’re making discretionary judgments on that basis. And there are advantages to that, right? There are also disadvantages, which is human beings make mistakes.

And when you have a centralized system of decision making, you can have a credit committee that doesn’t recognize changes in the interest rate curve or that perhaps is very bullish on a sector that is ultimately going to fail but they nonetheless invest in that sector and make mistakes. Another technology development has created unbundling, and that technology development is called blockchain, okay?

The concept of a blockchain is the idea of a network that is -- has distributed ownership and control where there is no one person making decisions and no one person can decide, for example, to turn off your bank account or to suspend your ability to take credit or to make payments. But to have a decentralized network, somebody has to be induced to contribute the computing power to the network.

So in the original internet, which is a centrally managed thing, you had big companies like Google and Facebook delivering the computing power to make the network function. If you’re going to have a decentralized network do things like I’ve just described, then somebody has to get paid. And the way they get paid is through cryptocurrencies.

And so when you hear people talk about tokens—whether it’s Bitcoin or Ethereum or some of these other tokens that you hear people talk about—the original concept behind those tokens was, if you think about Bitcoin as the very first one, the idea was bitcoin is the reward that you get for helping to maintain the network. It’s as simple as that. And that’s true across lots of other blockchains as well. Now, we won’t get into the complexities of the different layers of blockchains, but just think about cryptocurrencies as your reward for helping to support a decentralized network.

It turns out there are a lot of reasons that decentralization matters. My favorite example is if you think back to the famous Canadian trucker protest over the COVID lockdowns back in whatever year that was—I’ve tried to put the COVID lockdowns out of my mind so I purposely don’t remember the year.

One of the things that happened during the COVID lockdowns in Canada was when the truckers protested the need to show COVID tests every time they crossed the border with their haul was that their bank accounts were turned off. And if you think about the idea of what money is about and what banking is supposed to be about, this was money that these people had earned from work. They had paid taxes on it, and they’d simply deposit it in a bank for future use.

And one day, the government decided that their political views were so outrageous that their bank account should be turned off, and they shouldn’t be able to have lunch. They should be literally starved out of their protest. And that is something that can only be accomplished in a centralized system, right? You need command and control to do something like take somebody’s money away from them.

That really energized the crypto community because one of the things about decentralized systems is nobody can control it. So there is no government who can tell you that your next bitcoin send/receive transaction will be turned off. And that’s one of the social urgencies of decentralization—one of the reasons why so much interest exists in this asset class is for people who believe in civil liberty. Decentralized systems are thought to be superior on balance to centralized systems. You don’t have to believe any of that, but that is what the people who live in this world and act in this industry really believe.

So let me now make my comments about our regulatory approach to this activity, okay? So you have these tokens that are basically maintenance rewards for these underlying networks. These underlying networks, you may use them, you may not use them, but there’s no arguing that on a given day, the market cap of this sector is well north of a trillion dollars. The number of participants in this country alone is well north of 50 million people. So there is a nontrivial market for this asset class. You may not own this, but many of your friends and neighbors do. And they have a thesis for why they own it, much as you might have a thesis for why you own the stocks and bonds that you own.

And so, in our administration when I was comptroller, we had a thesis that these assets were new; they were relatively risky, but there was a growing market for them. And our belief was that the purpose of the regulated financial system was to provide a framework for risk management.

So we looked at these relatively risky activities, and we asked ourselves, “How can we provide supervision, licensing, custody, and other financial infrastructure to allow these assets to grow and gain market acceptance or not but to do it in a way that is predictable, stable, and safe?” And so we issued several pieces of guidance on this.

The first piece of guidance that we issued was guidance in the summer of 2020 that said that national banks have the legal authority to custody crypto assets. And our theory of this was that we looked back at the history of bank custody powers, and we found that over a long period of time, banks had been authorized to custody, not only specie—not only gold and silver coin back in the day—but also more exotic assets, like fine wine held for investment, art held for investment, digital security tokens in the traditional environment, digital stock certificates, things like those. And we saw no difference between bitcoin and fine wine.

These are noncash, high-value assets, and banks have long expertise in building safety and security around the custody process for those things. And we believe that the industry would be safer if we allowed banks, as opposed to nonbanks, to custody crypto assets.

Now, an interesting thing happened that day. I was just looking at this just a couple of days ago. One hour after we issued guidance saying something as simple as banks can custody crypto assets, the price of bitcoin jumped more than 30 percent, and it stayed elevated at that level for 9 or 10 weeks thereafter. So it tells you something about the idea that the market is so unclear that the regulatory framework for crypto is so uncertain that any point of light creates a 30 percent price jump. It’s bananas, but that is the case.

So fast forward. We then looked at the next issue in crypto, which has to do with a certain kind of crypto asset called a stablecoin. This is a blockchain native token that conveys price stable value, usually dollar equivalent. So you might think of a stablecoin as the modern day equivalent of a prepaid debit card, okay? It’s not cash. It’s a piece of electronic collateral, but it’s like an internet version of a prepaid card. And we said something very simple.

We said, “Banks are authorized to hold the reserve assets that back stablecoins.” So, if you’re going to issue 10 stablecoins worth a dollar, you have to have $10 on deposit in the bank. And again, our view was, “Well, banks used to support American Express travelers’ checks, and banks support the Bed Bath & Beyond card.” Okay, that’s probably a bad example. [Laughter] But it also supported a lot of non-bankrupt prepaid cards.

So our theory was, “Backing these kinds of prepaid assets is something banks have a long history of doing. It’s part of their legal authority in the payments authorization. So banks are allowed to do that.” And again, within about a week of us doing that, the velocity of the largest stablecoin projects increased 50 percent. I mean, just very simple regulatory clarity created massive market activity to the good of the holders.

We had a few more pieces of guidance like that. And at the end of my term, the term sort of was capped with my granting the first crypto bank charter. Now, if Caitlin had come in for a national bank charter, she might have been having this conversation. But we chartered a bank called Anchorage Digital Bank, which was a custody-only trust bank. But it was the first crypto business that was allowed inside of the national banking system. And again, a lot of good, positive market activity followed from that. And then our administration came to the end of the term.

On the first day of the Biden administration, a number of things that I did were repealed. So that’s how I knew I was really provocative, as I was a first-day repealer. Some people’s things didn’t get repealed for a week or two. But I had some things repealed on the very first day.

And at a certain point, the administration came out and took a position which they are now taking today, which is, right as we may have been legally—and the Biden administration did put out guidance saying grudgingly that they agreed with our legal analysis—but they decided nonetheless that even though banks have these legal powers, crypto was, A, just too risky, and, B, just not useful enough to be allowed in the banking system. And so they took risky activity that was being managed inside the system in our administration and pushed it outside the system.

So I’ll leave you with this question, and then I’ll turn it over to Caitlin or whoever the next speaker is. But I’ll leave you with this question. The core philosophical difference between the Trump administration and the Biden administration on crypto is, do you believe the purpose of the bank charter is to keep risky activity outside of banks because we’re here to protect banks, or do you believe the purpose of the bank charter is to take risky financial activity and bring it inside of a supervised system with capital liquidity and risk management requirements so that the kind of financial intermediation that wealth creation demands can be overseen in some safe and sound way? Our philosophy was the latter. This administration’s philosophy is the former. You decide.

Hon. Patrick J. Bumatay:  Thank you. Ms. Long?

Caitlin Long:  Thank you, Judge. I’ll give some background on what brought me into this industry because I think it might help folks who are wondering, “What’s the big deal with digital assets?”

When I was running the pension solutions business at Morgan Stanley in New York, I kept running into the morass of settlement in the financial system. And it is a place where there are a lot of nefarious activities. It is a place where mom and pops’ pockets are being picked regularly, and it is a place where we have the technology to settle the settlement problem. And what am I referring to by the settlement problem?

It’s why securities transactions settle two days after the trade date. It’s why payments, the ACH payment system, is one to three days. If you are settling Fedwire, you can settle same day, but you can’t program your payment to settle at a particular minute or settle something where, say, you have a securities transaction and you’re sending a Fedwire, those two things settle at the same time.

And as a result of that gap in settlement between one -- leg one and leg two of any financial transaction, there is an enormous amount of counterparty credit risk that is in the financial system. If we step back and think about how that evolved in the middle of the last century—actually, in the middle of the nineteenth century—we were able to communicate transcontinentally through simple data structures like Morse code. But that meant that the financial data leg of a transaction could move at the speed of light.

But the money lag -- back then, money was gold. Gold could only move at the speed of matter. And that gap between moving data at the speed of light and moving money at the speed of matter is what created all of this counterparty credit risk. And as a result of that, the financial system created layers of abstraction. “Well, let’s abstract the physical gold and have a piece of paper that’s redeemable for the IOU. Well, then let’s actually put pieces of paper redeemable for those pieces of paper on top of it.”

And eventually, what ended up happening is the dollar itself, under all that pressure to create credit, became an IOU itself. Go look at the money in your wallet. It is an IOU of the Federal Reserve Bank. It didn’t used to be. We eventually, as a result of all of this pressure—which again, stems from the fundamental gap between moving data at the speed of light and moving money at the speed of matter—we lost money in the sense that we lost control of it. Money itself became credit.

And as a result of that, the U.S. economy ultimately decoupled from what it was up until the late 1960s, which was an equity-financed economy to now a debt-financed economy and one that is fundamentally unstable. So I set about trying to fix the settlement problem that I saw on Wall Street.

I saw a lot of nefarious things, especially in the securities lending business. I also got involved with moving multibillion dollar payments between two nonbanks where we had to get the Federal Reserve involved. And it just made no sense to me that this is how the system worked. So those are the fundamental problems.

Ultimately, all the abstractions that created these layers—and we lawyers had to deal -- by the way, I’m not a practicing attorney, but I did go to law school—the layers of abstraction and all of the legal gymnastics that had to be created in order to solve for that settlement mismatch—and I’m referring to U.C.C Article 8 for those of you who are financial services specialists—we wouldn’t need that if transaction data and money settled at the same time or if securities and money could settle at the same time. But what we need to be able to do that is programmability of money. And that is what bitcoin brings us, and that is what stablecoins bring us for U.S. dollars.

Now, the second point is, what is the role of the states in what I’m just describing? Those of you who are familiar with the history of banking may understand that banks in the United States have always been chartered by the states. It wasn’t until the Civil War era that the National Bank Act of 1863 created the Federal Chartering Authority that Brian was the acting comptroller of the OCC, where we now have what’s called a dual-banking system. National banks and state chartered banks that have exactly the same rights.

If you fast forward, two utilities were created to service the banking system. One was the Federal Reserve in 1913, which runs the payment system, and the other was the FDIC, which is the insurance company for the industry. And they were both created by Congress to service the entire industry as utilities.

There were multiple reforms of the Federal Reserve in history, but one meaningful one happened in 1980. And it was back when Paul Volcker was trying to get control of the inflation of the 1970s. And member banks were disadvantaged. Fed-member banks were disadvantaged because they had to park reserves at the Fed, but the Fed wasn’t, at that time, paying interest on those reserves.

And in a high inflation, high interest rate environment, the cost of capital was so high that member banks were fleeing the Federal Reserve System. And that made his job coming in as the chairman of the Fed in 1980 even harder because, if you studied economics in school, you understand—especially back then, where credit was created almost exclusively in the banking system—you understood that the banks took a dollar of the monetary base and multiplied it to become roughly $10 of M2.

Well, if that process was happening outside of the control of the Fed, it was much harder for Volcker to get control of inflation. So what did he do? He literally begged Congress to pass the Monetary Control Act of 1980, to treat all depository institutions on an equal playing field, and require every depository institution in the United States to hold their reserves at the Fed so that they were all inside the system. And all this credit creation that was happening outside the system was something that he could get control over.

So the bargain that the Fed made was that all depository institutions were required to hold reserves at the Fed, and the Federal Reserve was required to service all depository institutions. And I won’t go into the details of what is an eligible depository institution, but for purposes of this discussion, you can assume that it is a validly chartered state chartered bank or a validly chartered OCC bank that holds a national charter.

What has happened in the ensuing decades is that states have started to charter banks that the Fed has viewed as nontraditional. And what is interesting about that is that it’s an eclectic group of states dating back to the real estate crisis of the late 1980s. A few northeastern states created uninsured state bank charters. And then after the FDIC refused to provide insurance for any bank servicing the digital asset industry that was a startup, a few other states—Wyoming and Nebraska—chartered a new type of bank, also uninsured. And then most recently the state of Idaho, which has a state’s banking statute that doesn’t require its banks to be insured, started to charter payment banks that are uninsured banks.

So now, you have six U.S. states and potentially many more—everybody’s watching this—who are trying to figure out, “All right. Did the Monetary Control Act actually mean what it said, that all depository institutions had access to the Federal Reserve System?” If you step back and think about the statute, it’s 12 U.S.C. § 248(a). The statute that says the Federal Reserve -- literally all eligible depository institutions had to hold their reserves at the Federal Reserve. And now, you see states saying, “Well, some of these payment innovators, the FDIC won’t insure them. So now what?”

What’s also interesting about innovation in financial services is if you think about the mission statements of federal financial regulators, I’m not aware of a single one of them—whether it was the OCC, the FDIC, the SEC—that has economic development or innovation within their remit. In fact, their incentive as agencies is to block innovation.

However, the states almost always have economic development in their remit. So what is the practical implication of that? The practical implication is that the states are the laboratories of democracy, and the innovations bubble up from the states. But what we started to see under the Obama administration under Operation Choke Point 1.0 is the federal banking regulator—in that case, the FDIC—started to pick and choose which industries got to have banking services.

And we subsequently started to see the Federal Reserve start to block applications from validly chartered, state chartered banks for Federal Reserve master accounts. So the impact of this is that there’s been a centralization of power in the banking industry in Washington, D.C., that is trying to override the dual banking system and the ability of states to charter their own banks.

They’re now in Washington, DC, going through what is effectively a veto process where federal banking agencies are asserting jurisdiction that they do not have over whether states have the right to charter banks. And that is the impetus for our lawsuit. Our lawsuit, of course, is not something I can talk about. I respect the process and it is subject to a protective order.

The fundamental question it comes down to has nothing to do with crypto. I’m interested in using crypto as a technology to solve that settlement problem. The fundamental question of the lawsuit is, “Does the Federal Reserve have the right to veto a state’s bank chartering authority?” I’ll leave it at that.

Hon. Patrick J. Bumatay:  Thank you. Professor Peterson?

Prof. Christopher L. Peterson:  Well, hi, everybody. Thank you. First, I want to say thank you, Judge, for agreeing to host the panel. It’s kind of cool to be on a panel where there’s a United States Court of Appeals judge that’s moderating it and also with a comptroller of the currency and a bank CEO. I’m just a public school teacher from Utah, and I’m pretty much the least fancy speaker in the entire conference program. So it’s an honor to be here. I do want to thank also Sam Fendler, who did the logistics on our panel really efficiently and the audiovisual people that are working back there and all the servers at the hotel that are taking care of us.

I’m the token liberal on the panel, but it’s an honor to do that, I think, because I believe in civil discourse and reasoned debate and a civil society that has a competition and ideas and tries to find a pathway forward for our republic in a way that’s constructive. And I guess I’m also, in addition to being the token liberal, I’m also the token crypto skeptic, I think, in the panel.

I want to start out with a confession, and I don’t know why this happened. When cryptocurrency first came about, I was a little bit skeptical to begin with but open to the ideas. I really like complicated rule systems. I teach constitutional law. I teach contracts, but I also teach commercial law. And it’s my favorite class to teach by far because Article 9 of the Uniform Commercial Code is so complicated and intricate.

It’s a beautiful creation of human ingenuity. And there was a part of me that thought, “You know what? Cryptocurrency is going to be kind of like that, too. Payment systems and the settlement problem, that’s a real problem.” It would be cool if we had some way to fix that.

But before too long, the more I heard about what was happening and the problems with it, eventually, in my mind, probably about three or four or five years ago, anytime anybody ever said the words “crypto,” in my mind, I would try to be polite and smile. And I don’t want to offend anybody, but remember, this is the -- we don’t do cancel culture. So I’m going to say something that’s a little bit edgy.

But whenever I hear the word “crypto assets,” in my mind, I hear the words “magic beans” because I’m not really convinced that there’s a lot of value add to these financial instruments or these distributed ledger products, non-fungible tokens, etc. And so I could be wrong about that.

I mean, there’s still the potential that this will somehow revolutionize, and there’s going to be some value there. But they’re not farming. They’re not feeding anybody. They’re not transporting goods. They’re not manufacturing goods. They’re just making up new, different types of crypto assets that are all -- distributed ledgers, I get that. We’ll talk about that in a little bit.

But the other problem with them is that there are lots and lots of law and order scandals that keep happening over and over and over in this sector of the economy. And if you think I’m being too uncollegial or uncivil by using the term “magic beans” to describe all of it all, let me just go through a couple of scandals, and maybe you’ll feel better about me.

First off, I’m going to start with one called—and I’m not making this up, and it also happened after I came to call it magic beans—it’s a company called Beanstalk Farms. I didn’t make that up. That was what they called themselves. It’s a DeFi or decentralized finance governance protocol that would allow people who own the assets to vote to change the code, which is, “Oh, it’s decentralized,” so you could change the software code.

If you own some assets for Beanstalk Farms, then you can vote to change the software code. But they also had flash loans that would allow you to borrow assets, probably for whatever complicated hedging strategy you had or whatever. And so you could borrow assets and then give them back really quickly. So some entrepreneurial person borrowed a whole bunch of assets in a flash loan that got them just enough to actually be able to change the code. And then they changed the code to allow them to steal about $182 million of crypto assets.

Magic beans were what Beanstalk Farms was selling, it turned out. Axie Infinity is a second example. Axie Infinity is a video game where you can make crypto assets, get paid crypto assets. It’s a pay-to-earn game, they call it, and it’s on something called the Ronin network. And so, all around the world, apparently, it was particularly used a lot in Southeast Asia, but here in the States, too, people were playing this video game because they’re getting paid in crypto assets. I gather it was a mediocre video game. I don’t know. I never played it.

But they’re making all this crypto, these crisp assets playing video games. And the North Koreans came in and hacked it and stole all of the assets. The North Korean government has a crypto hacking operation and stole -- it was 597 million in crypto assets, including $25 million in a USDC, which is a stablecoin pegged to the value of the U.S. dollar.

And then a third example, [Wintermute]. They were a vanity address company. In a crypto asset, you’ve got a private key or a private account, which is usually just a bunch of letters and numbers and gibberish. It’s not very fun to talk about. And so this company would save your private key but then give you, on top of that later on, a vanity address that would be like “Crypto Bro 99” or something like that. It’s just a joke; don’t be mad. Anyway, it had a bunch of security problems, and so somebody came in and hacked it. And people lost $160 million in crypto assets through this hole that it had introduced in people’s private keys.

Fourth example, Terra’s algorithmic stablecoin. So this is another stablecoin that was pegged to the U.S. dollar, but they didn’t -- they weren’t holding dollar-for-dollar assets. They had an algorithm that was sort of giving -- suggesting that they had sufficient assets to back the stablecoin. But it turns out, of course, they didn’t, and that collapsed.

And hard to judge how -- what the loss in value was. I’d read something that said $60 billion, which seems high to me, but I don’t know. It’s a massive loss where they were representing themselves as having -- that one of their crypto assets had the same value as the United States legal tender did, and they were representing that they had figured out a way to guarantee that they were going to have reserves sufficient to cover those losses, which proved to be utterly false.

And then another example, this one’s not that -- I just got to put it in there because it’s the guy’s name. This guy’s name was -- it is -- and I’ve never met him. I’m sure he’s a lovely guy. I don’t mean to pick on his name. But his name is Shady Mashinsky.

[Laughter]

Prof. Christopher L. Peterson:  That’s great; it’s fantastic. He operated Celsius, which was a crypto lender. But really, what he had was a crypto asset Ponzi scheme, where he -- they were getting investments and then having big returns. And then, of course, he was paying the new people with -- sorry, the old investors with the new people’s crypto assets, and it was just a typical Ponzi scheme.

And people lost over a billion dollars in assets to Shady Machinsky’s crypto lending. [Laughter] I’m sorry. And I haven’t even got to FTX, which was the biggest one. Sam Bankman-Fried just got convicted of fraud, apparently, and billions of dollars in assets.

I’m going to mention one more because I know I’m going on too long. It’s a company that you probably haven’t heard of. It’s called the Nomad Chain Bridge. It’s a cross-chain bridge. The idea is you have different assets on different blockchains.

So maybe you’ve got some Ethereum, and you want to buy—I don’t know—Dogecoin or Moonbeam or whatever, but you don’t want to change it into dollars with your wallet because that might be -- there might be a “know-your-customer” verification there. They might see that you might be committing tax fraud, or maybe you’re trying to launder assets, or maybe you just don’t like dollars and you want crypto. That’s fine, too, maybe. But they would port from one blockchain to the other using smart contracts on the Ethereum blockchain.

They made a whole bunch of representations about -- and the software was designed just about 20 minutes from where I live in Salt Lake City or just in the suburbs of Salt Lake City. They made a whole bunch of representations. They were going to have watchers that would take a half hour for these transactions to settle because they have watchers that are going to verify that it’s not getting hacked, and it’s the safest, best, perfectly safe way to do this.

But what happened was they updated their software protocol, and somehow, a backdoor was introduced into the software. And the next day, somebody came—and I don’t remember how it was—stole about $50 worth of crypto assets by just going into somebody’s wallet and using this backdoor to just extract the money out of their wallet.

The chain bridge introduced a security problem with the blockchain and allowed them to take $50. No watchers came and stopped them. It turns out that no watchers came to stop them because even though the company promised that there would be these watchers that would do this, they never appointed any watchers. It just didn’t even exist. They never actually implemented the basic security protocols that they had promised all the people that they would adopt. At least that’s what I believe happened.

After that 50 bucks got stolen, the next day, they came back, and about $186 million of crypto assets were taken out of people’s wallets. Some of these people are maybe not that sympathetic, but a lot of them are long haul truck drivers that are listening to crypto podcasts and invested their retirement account into this instead of a Vanguard low-fee mutual fund. They got wiped out because they use this cross-chain bridge. And I know this one because I should just disclose.

In addition to being a country lawyer, I also am of counsel at a law firm here in D.C. called Gupta Wessler, a full-time law teacher, but I also try to look for cases that they might be interested in and help them on their appellate briefs—that kind of thing.

And so we and another law firm—a couple law firms—got together, figured out this was happening, got some clients, and was suing them for federal racketeering because we think that that’s a money transmitter, and they were doing unlicensed money laundering and that they committed wire fraud and lying to all their customers about the security features that didn’t exist.

Now, I could be wrong about all those facts. Those are alleged, but we’re pretty sure that’s what happened, and I think it was wrong. If there’s anything, I’ll just stop on my rant about the lack of law and order in the market. Having disclosed my stake in that case, there’s a verb that I’ve figured out that exists. It’s called “rugging.” Have you heard of this? Do you know what this is?

So the idea is you build the—I don’t know—the pillow fort in your front room on top of the rug, and everybody’s talking about it. You get this structure. It’s all really wonderful. But then you just pull the rug out from underneath them. And that’s happening over and over in many of these cryptocurrency systems that they’ve developed a special verb for when that happens. It’s called “rugging somebody.” And that’s when the whole system falls apart and collapses.

So I don’t think that for people that know what the word “rugging” is, the fact that this happens again and again may not be a bug in the system. It’s the feature of the system itself. So I guess my second broad point I want to make is that, a lot of the time, I hear a lot about decentralization. And I think two things about this. First, it’s not clear to me that these are really decentralized systems.

Yes, the ledger is decentralized, unlike the Federal Reserve—which keeps the records of everybody in the ACH system or the Fedwire system. Everybody has a copy of the ledger on all their computers. I get that. But in other ways, the system is not centralized. Why? They’ve got a software protocol that’s the same in everybody. And there’s a group of people that’s controlling the software protocol, which introduces centralized holes or problems into the system in ways that aren't solved by having lots of different copies of the ledger and different records.

And then, second, even if some of these systems are more decentralized, it’s not clear to me. It’s not self-evident to me that that’s all that particularly useful all the time. It takes more energy. Did you know that Bitcoin—which is probably the most legit of all of the cryptocurrencies—every year, Bitcoin uses as much electricity as Norway does. That’s a lot of electricity—a lot of coal, a lot of oil that we’re burning just to kind of create this math puzzle, to create a crypto asset that really doesn’t have that many more value uses than fiat currencies. Maybe in El Salvador or Guatemala or somewhere where their currency is not stable, but I don’t know.

And I guess I also think that it is facilitating some extremely socially destructive behaviors. Crypto assets are the asset of choice for ransomware hackers, kidnappers, child pornographers, and drug dealers in many instances—also, people that are just investing in them. But that is part of what this ecosystem is all about.

And then, I guess the last point I’ll say is that I get that there are going to be some controversial lawsuits where the SEC, the commodities future, the CFTC moving in to try to impose some law and order on this system where there are all these scandals happening. And the definitions in their foundational organic statutes often have some ambiguity in them.

What is a security? What is a commodity? What is a money transmitter? What does it mean to be safe and sound? What are the precise definitions of deceptive, unfair, and abusive practices? Congress passed statutes that have ambiguity in them to respond to the many different kinds of commercial behaviors and practices that evolve over time.

But the federal regulators have to step in to try to create law and order. Congress has not acted because Congress is in gridlock and hasn’t done anything. Maybe they will at some point, but they haven’t yet. And so what else can they do other than try to step up and respond to some of these abuses that are happening, I think, in a rampant way in the marketplace? So I think that the federal regulators have not overreached.

Now, they’re going to win some cases; they’re losing some cases. We’ll see how it all plays out. The people that I think have overreached are people like Beanstalk Farms, Sam Bankman-Fried, and a slurry of other charlatans and scammers that are ripping people off. That’s who’s overreached. Maybe I’m the law and order guy after all. Not you.

Hon. Patrick J. Bumatay:  Excellent. Well, thank you all for these excellent opening remarks and staying within your time limits. We have about 45 minutes for questions and answers, but before we get to Q&A, I’d like to give the panelists an opportunity to respond to anything they’ve heard from the other panelists. I know you two seem like you’re chomping at the bit. Who wants to go first?

Caitlin Long:  I’ll start by saying I grant most of what you said.

Prof. Christopher L. Peterson:  Great [laughter].

Caitlin Long:  Right. I had a debate with one of the very, very early bitcoiners whether 90 percent or 99 percent of the industry needs to just burn on a raging funeral pyre. It does. The same thing was true of the early internet.

The problem is exactly what Brian was alluding to. By not creating any regulated pathway, all of these scams proliferate in the dark. And I do believe the Department of Justice is massively underfunded in this enforcement area. Could be going after a lot more of the criminals and scammers than they are in this industry. I hope they continue to. And I am someone who has handed evidence to law enforcement of one of the biggest frauds in this space, trying to clean it up.

But by approaching it the way you’re approaching it, you are literally shoving all of this activity into the dark markets and keeping the good actors on the sideline. That is exactly what the Biden administration has chosen to do. They executed a, shall we say—in Wyoming, we would call it “a shoot the stallion to scatter the herd” approach—they went after Coinbase, which was the closest to getting approved by the SEC, has been working for years to try to get a regulated pathway by the SEC.

The Fed, the White House, and Senator Dick Durbin went after my bank, which wasn’t even open—how Dick Durbin even knew to attack us on the Senate floor when we weren’t even open yet. I have been public about the fact that we knew the White House and the Fed sent the press after us because two days before the Fed voted down our bank charter membership application, two major news outlets were hounding us, telling us that we were going to be voted down.

And by the way, they put it in writing in one case that all of the applicants in front of federal banking agencies that had any crypto to their business model were simultaneously asked to withdraw their applications. That’s in writing, okay?

So clearly, it’s now obvious. There’s an all-of-government coordinated approach to take the best players who were actually trying to create a lit market, a regulated pathway for these activities to be able to use this technology. And those were the ones who got skewered the worst by the regulators.

Brian P. Brooks:  Okay. I’m going to try something a little bit different. Shady Mashinsky. [Laughter] So there’s nobody named Shady Mashinsky. There’s a guy named Alex Mashinsky. And it’s funny how when you gild the lily, you lose a little credibility. He’s an actual person, not named Shady. No idea where that comes from. But what I will tell you is --

Prof. Christopher L. Peterson:  It comes from the newspaper. I mean, I didn’t make it up [laughter].

Caitlin Long:  It’s not accurate.

Brian P. Brooks:  But it’s just not true. So here’s what I want. I want to make sort of two broad points, and then there are a couple of things I do want to deconstruct. But the first broad point I would make is for every Shady Mashinsky that you can name, there’s a Bernie Madoff. I mean, human beings are flawed people. This is why we build regulated systems, is to constrain the human impulse for fraud, greed, corruption.

There’s nothing about crypto other than value, and when they’re criminals, they’re looking for ways to obtain value for no consideration. People steal things. That’s why we have a banking system, is to make it harder to steal things.

So I would just begin by saying, “Oh, my God. We’ve named five scandals.” I can name many more scandals than that in the banking system, and so can you. So that’s not an indictment of the system. That’s an indictment of people. And that’s why we have disclosure, capital liquidity, antifraud, the Bank Secrecy Act, and all kinds of other things that everybody in this room knows well. That’s an argument for conducting market activities inside of a regulated system as opposed to keeping them out because they’re so very scary.

There’s a deeper thing, though, that Chris says that I want to unpack for a minute. And he said it in a way that sounds very plausible. He says there’s not a lot of value added here. He said, “They’re not farming. They’re not feeding anyone. They’re not manufacturing anything”—and that’s true. So the question then is, who decides, in a market economy what has value? So I was just going to ask all of you this question. How many of you in this audience own a snowmobile?

Caitlin Long:  Nobody.

Brian P. Brooks:  So that sounds like an argument. We should probably ban snowmobiles. I don’t have any use for them at all. I cannot imagine why we even have them. In most of the states, it doesn’t even snow that much with global warming, and they use gas. We should probably just ban them.

Now, how many here smoke cigarettes every day? Again, and they cause cancer. Probably, we should just ban them, I think. We should just ban cigarettes and snowmobiles. How many of you still have black lights from the ’70s? [Laughter] Now, some of who remember those, we’d argue there actually was utility there. You know what I’m talking about. But for the most part, we should probably just ban them because not that many people want them. They’re kind of weird and sketchy, maybe even skeevy. We don’t want blacklights.

But wait. This is The Federalist Society. We know that in a market economy, the government doesn’t get to tell us what things are useful enough to be allowed in the market. That’s like Bernie Sanders’ comment that we have too many different styles of shoes in this country. This is Nikita Khrushchev stuff.

You don’t tell other people what utility they get to derive out of a product that you yourself don’t find important. There are a million things that we do everyday that do not feed anyone; they don’t manufacture anyone; they don’t farm anything. And yet, weirdly, we derive utility from the fact that we could buy those things if we wanted to. That’s what markets are about.

And if you look at every stock that’s listed on the Nasdaq—and there are several thousand of them—I’ll bet most of you in this room have never and would never buy any of those companies’ products. But we allow the market to decide whether those things have value. We don’t allow the government to decide whether those have value. And that’s very troubling.

Now, I want to go through just a couple of things here that I think are actually worth unpacking just so people understand it—people who aren’t crypto-native people. So one is the comment about the long haul truck drivers who are listening to crypto podcasts.

Now, I will tell you. I’ve had some weird experiences with random people who listen to crypto podcasts. [Laughter] There is a strange culture here, I will grant you that. I had a famous experience once where I was in the back of an Uber in suburban Charleston, South Carolina, and it was one of the weirder Ubers I’ve ever been in. Normally, your Uber is like a Honda Accord, or if you’re a rich guy, it’s a Yukon. But this was an old Pontiac. I’ve never actually been in an Uber like this.

But I was in the backseat with my fiancé going to a suburban shopping mall. It’s just a vignette here. And we’re driving to the shopping mall because it’s the only place with the lens crafters open on a Sunday. You don’t care about any of these details. But the point is, as we’re driving down the street, I am who I am, and she ran crypto at a very famous company you’ve all heard of.

And the driver, at some point, he said in this low country accent, “Do you all know anything about crypto?” And you don’t really want to be in a conversation on one of those lonely highways in suburban Charleston, South Carolina. So you kind of, “Yeah, I know a little bit.” “What do you know about it? I’m invested in”—and he lists some list of assets. Well, I know a little bit about it, and so we have a little conversation.

And at a certain point, he looks in his rearview mirror. Then he asked me another question, and I answer again. And he looks in the rearview mirror, and he says, “Man, what’s your name?” And I told him my name, and he slammed on the brakes and pulled over to the side of the road because he wanted a selfie because crypto is a super weird world. So I’ll give you these long haul truckers. [Laughter] They are inspired by a lot of weird stuff. There’s no question about it. But the comment was, he bought crypto instead of a Vanguard low-fee mutual fund.

So, I mean, look. I don’t give investment advice. If I did, I would tell you that nobody should have more than 50 basis points of their net worth in crypto. They shouldn’t. There’s a lot of evidence that somebody who does have 50 basis points has higher uncorrelated long-term returns than someone who doesn’t. But no one should put their net worth in crypto.

But I will tell you that in almost every year since it was invented, Bitcoin has outperformed every other asset class. I mean, if you had put your entire net worth in Bitcoin on January 1 of this year or had put all of your net worth in a Vanguard low-fee mutual fund this year, the difference in a rate of return would be about 130 percentage points because Bitcoin is up about 190 percent this year. I’m pretty sure that your Vanguard S&P 500 fund doesn’t do that this year, last year, the year before, or any year.

So these comments, these incumbency bias comments about, “Well, it’s not as safe as the U.S. dollar,” the U.S. dollar is incredibly unsafe over long periods of time and over the last short period of time, unbelievably unsafe, right? I mean, Bitcoin—and I’m just going to focus on Bitcoin as the main crypto asset—Bitcoin is highly volatile, but it goes strongly up over time.

The dollar is moderately volatile, and it only goes down. There has never been a day when the value of the dollar as an investment asset has gone up because purchasing power declines due to the two percent inflation peg and the fact that we just had nine percent inflation last year. So again, yes, it’s volatile in an upward direction. The dollar is moderately volatile in a downward direction. So you shouldn’t let incumbency bias sort of bias us.

Two last things I’ll just comment on. These are all unrelated comments, but I’m just unpacking some of the arguments that were made. This comment about Bitcoin uses as much energy as Norway. I mean, put aside the fact that, “No, it doesn’t.” And, I mean, I’m the one on this panel who’s testified before Congress multiple times on the subject and ran one of the world’s largest bitcoin mining companies, a subsidiary of which Caitlin’s on the board of, by the way. So I think we know a little bit about bitcoin mining.

But what I will tell you is the entire bitcoin mining business is about one thing, okay? It is about renewable energy. That is what the entire business is about. And I’ll tell you how that works, okay? Renewable energy is, as an energy source, a terrible source of energy for two reasons. It is because it is intermittent because the sun only shines during the day, and the wind only blows when the wind blows. So it’s intermittent, and it’s unstorable.

So when solar energy is being generated, it produces far more energy than can be consumed. Same thing with wind. And it can’t be stored for periods when it’s not being generated because we lack the battery technology to do that. And that is why we don’t have very much solar and wind capacity because it is an uneconomic source of energy.

The only way to have wind and solar energy is to either subsidize it, which is kind of the government’s current model—“Let’s force you to buy seven cents a kilowatt hour energy when natural gas will give you two cents a kilowatt hour.” So you can either force people to take it and subsidize it through tax dollars, or you can take the excess capacity that’s unstorable and convert it into an immediate economic asset called Bitcoin.

The entire business of Bitcoin is wind and solar. So this idea that it’s -- I believe the line was, “We’re burning a lot of coal and oil.” We just aren’t. You can’t make money bitcoin mining burning coal and oil. You can only do it getting essentially free excess capacity from solar and wind farms. I can tell you that because I was the CEO of one of the largest companies in this space.

Caitlin Long:  And hydro.

Brian P. Brooks:  And hydro, right. But anything that is zero cost and unstorable, that’s what the business is. And finally, there’s a bit about socially destructive behavior. I don’t know what to say about that. I mean, it is weird when you’re in any new area. I remember being at a wedding in the year 2000 where everybody there was the CEO of barbecue.com and the CFO of pets.com and a bunch of bankrupt and arguably fraudulent business models that stole a lot of people’s investment dollars and went to zero.

Was that socially destructive behavior? I don’t know. I ran the banking system for a year, during which I imposed more than a billion dollars of fines on banks for all kinds of discrimination violations and cyber breach violations and improper use of personal data violations and credit risk management things.

All I know is Jamie Dimon lost more on the London Whale trade in one day than most of the scandals that Chris just talked about. And nobody thinks the banking system is a fraud. People are flawed. People commit crimes; people commit errors and are negligent, and that’s why we have systems to constrain the impact of those things.

What all of that means to me is, in a world where 52 million people might disagree with those of you who don’t own bitcoin—but that’s a lot of people who disagree with you—they find value in a one and a half trillion dollar market cap thing even if you don’t. And if that market’s going to exist, it would be better to exist inside of a framework that can provide supervision, that can provide capital and liquidity requirements, and clear rules of the road versus the market we have because the alternative isn’t to not have the market.

The alternative is to have an unregulated market characterized by all of the outcomes that Chris describes. So to me, I’d far rather see that inside of a system I can observe.

Hon. Patrick J. Bumatay:  Thank you. Professor Peterson, you want to respond?

Prof. Christopher L. Peterson:  Well, there’s a lot there. Let me go on a couple of points. And folks want to ask questions, too. Judge, you may have other questions. But first off, I got to say, I never said anything about banning cryptocurrency, and I certainly don’t advocate banning snowmobiles.

Look, I’m a free market guy, too. I believe that people can buy and sell stuff. But that doesn’t mean that I have to pretend that I think that it has more value than it does. And it also doesn’t mean that I have to -- the topic of the panel is whether or not the federal regulators are overextending themselves.

And my point in illustrating seven—not five—major cryptocurrency scandals, of which -- I thought seven was too many because I was going to go on too long and people would be mad. It’s a long list. It’s not just seven. It’s many, many more. And, of course, there are a lot of scandals in the banking industry. I agree that people -- humans are flawed, but I also think it’s pretty clear that this market in particular is problematic.

There are lots and lots of scandals, not -- disproportionate to the value that they’re providing to the economy. Nobody out there, at least that I’ve heard, is saying that it should be banned. And that’s certainly not what the federal regulators are doing. Nobody at the SEC or the CFTC has been saying that crypto should be banned. What they’re saying is that they -- that some of these assets and practices fit within the traditional regulatory framework that you just said that we should engage with.

So they should be considered securities, or they should be subject -- they should be commodities, or they should be accounts, or the money transmitter licensing rules should apply to them. It doesn’t strike me as all that terribly controversial that, for example, a suspicious activity report should be delivered to FinCEN when one particular company is trading large amounts of crypto assets with no “know-your-customer” due diligence between the two of them.

Caitlin Long:  We’re not arguing against that at all.

Prof. Christopher L. Peterson:  Okay. Well, then maybe we’re not disagreeing, and maybe it’s just a matter of tone because it sounds like there are a lot of things that we agree with. But that is what they’re saying in the case that I mentioned, in the Nomad cryptocurrency case. Their position is that the cross-chain bridge does not have to file any suspicious activity reports when people port one type of crypto asset to another and that even though that looks an awful lot like money laundering, that they’re entitled to do that all they want because it’s crypto, bro. It’s not dollars.

Caitlin Long:  You’re not hearing either of us challenging that.

Prof. Christopher L. Peterson:  Okay. Well --

Brian P. Brooks:  Although I would say -- we’re having a dialogue. So here’s the exciting part. This is where we become -- remember those old Sunday shows in the 80s where they really got into it? So one thing I would say, Chris, is when you say that nobody’s arguing to ban crypto, I do disagree with you on that.

Prof. Christopher L. Peterson:  Okay. Well, I’m not arguing to ban crypto.

Brian P. Brooks:  I understand. But when you talk about the securities regulators and all they’re saying is, “These meet the conditions of securities, so they should be treated like securities,” one way that the U.S. is very different from other countries is crypto assets that are deemed securities are not allowed to register and trade in the United States.

So, for example, when the SEC takes the position that the Ripple token, XRP, is a security, they’ve prohibited FINRA from allowing a broker dealer to trade XRP. So it’s not possible to register. So Apple can list a new share of stock and can register and trade that on the New York Stock Exchange. But if XRP is a security, it is prohibited, right? That’s not the case in lots of other countries.

I was just with the Brazilian securities regulator yesterday in New York, and their approach is just like the U.S. Some of these are securities, and thus, there’s a registration process, and you can trade them on a securities exchange. But in the U.S., it is, in fact, true that the SEC does want to ban crypto. Their belief is not that it should register and trade but that it should be banned.

Prof. Christopher L. Peterson:  Well, I don’t think that that’s entirely clear. I’m not sure I agree with that, and it’s certainly not what anybody in Congress has said. And there’s still a vibrant and active cryptocurrency --

Brian P. Brooks:  I mean, it’s what a significant number of people in Congress have said.

Caitlin Long:  Oh, definitely.

Prof. Christopher L. Peterson:  Sorry. There are some people who have said that.

Brian P. Brooks:  Including the chairman of the Senate Banking Committee.

Prof. Christopher L. Peterson:  Congress has not passed legislation to ban crypto. And I don’t think that there are leading cryptocurrency proposals that are going to go that far. But I do think that the notion that what we’re going to do with our banking system is allow banks to leverage themselves up with crypto assets is -- exposes a lot of taxpayer funds.

Caitlin Long:  That’s not what is proposed. Yeah, that is absolutely the opposite of what’s been proposed. There’s no leverage allowed.

Prof. Christopher L. Peterson:  Well, so do you think -- let me ask you. And it sounds like maybe we’re agreeing about some things then. Do you agree that we should not allow banks to hold crypto assets as reserves?

Caitlin Long:  Yes.

Prof. Christopher L. Peterson:  Great. That’s good. I’m glad we got that sorted away.

Brian P. Brooks:  Okay. But, Chris, do you agree that we should allow banks to custody crypto assets as part of a custody business? This is what I’m talking about.

Caitlin Long:  Bank of New York Mellon is doing it, right?

Brian P. Brooks:  This is what I’m talking about. Right.

Caitlin Long:  The Fed has allowed Bank of New York Mellon to do it. But when a startup bank in a red state proposes to do it, the Fed “rug pulls” the state of Wyoming after the state of Wyoming literally spent a hundred meetings with the Fed working on getting this charter approved.

[CROSSTALK]

Prof. Christopher L. Peterson:  [Laughter] That’s not what the verb means.

Brian P. Brooks:  What’s just hard to understand is, so when Silicon Valley bank failed, one of the things that they had on their balance sheet was about $800 million of fine wine, which was custodied for clients, right?

      And so you think, “Well, banks are banks. They shouldn’t be having a wine vault.” But they do have a wine vault. It’s an investment asset—almost a billion dollars’ worth of wine in custody. Why would custodying a bunch of thumb drives with bitcoin private keys be any different from that?

Prof. Christopher L. Peterson:  Well, one final arm is it could be more likely to be the proceeds of illegal, ill-gotten gains.

Brian P. Brooks:  Why?

Prof. Christopher L. Peterson:  It could be facilitating money laundering.

Caitlin Long:  Wine could be as well.

Brian P. Brooks:  Why would you say that?

Prof. Christopher L. Peterson:  Because there’s rampant money laundering in cryptocurrency. It happens all the time.

Brian P. Brooks:  So there’s Treasury financial crimes report every year. And in the most recent one at the end of 2022, they talked about this, and they said that as a percentage of total market activity --

Prof. Christopher L. Peterson:  This is a tough room, by the way. [Laughter] 

Brian P. Brooks:  As a percentage of market activity, there is far more money laundering as a percentage—not in absolute terms but as a percentage—far more money laundering in the banking system than there is in a crypto system, which doesn’t mean that there’s not money laundering in crypto. There is absolutely is.

Prof. Christopher L. Peterson:  Yet, and it’s illegal, and we actually go after it.

Brian P. Brooks:  But also in the banking system. Sure.

Prof. Christopher L. Peterson:  No, I know. But you and all the other banking regulators go after it, and nobody in the banking system -- I mean, there’s a lot of things that we agree about. We’re clearly pissing each other off, but [laughter] --

Brian P. Brooks:  We’ve done it before. I’m not pissed off. I find it hilarious.

Prof. Christopher L. Peterson:  There’s a lot of stuff that we agree about it. I mean, it sounds like we all agree that money laundering is bad. Do we all agree with that?

Caitlin Long:  Yes, it’s a crime.

Brian P. Brooks:  We do, but we don’t all agree that banks should custody crypto. So let us ask you a couple of questions.

Prof. Christopher L. Peterson:  No, no. We just talked about that. Do you agree that there are a lot of people in the crypto industry that maintain that the kinds of things that would facilitate money laundering, they claim that they don’t have to have money transmitter licenses and can facilitate money laundering. Is that problematic to you, or do we all agree about that?

Brian P. Brooks:  I think, Caitlin and I probably personally --

Prof. Christopher L. Peterson:  Because, if we do, maybe you’ll submit an amicus brief in my case.

Brian P. Brooks:  No, no. I don’t agree with you. What I would say on that is -- my guess is, between the two of us, we know the companies and executives who control 90 plus percent of the American crypto market, and all of them have money transmitter licenses every --

[CROSSTALK]

Prof. Christopher L. Peterson:  Oh. Well, let’s talk about that. So Coinbase is held out as a bit of one of the better actors, but Coinbase is also one of the primary investors in the Nomad cross-chain bridge. So Coinbase has a money transmitter’s license.

Brian P. Brooks:  But Citibank is one of the major investors in the Sinaloa drug cartel. I mean, so what? The market cap of this asset is one and a half trillion dollars.

Hon. Patrick J. Bumatay:  We only have about 20 minutes left of this panel, and this debate is really exciting. But I also want to give the audience an opportunity to ask some questions. Let’s intersperse that. So if you have audience questions, please state your name and your affiliation. And please make sure your question is actually a question.

Edward “Coach” Weinhaus:  Sure, thank you very much. Coach Weinhaus, Yeshiva University and UCLA. I’m also the founder of Athena Bitcoin, where we were primarily responsible for the implementation of Bitcoin as legal tender in El Salvador, as you know, the only country to really do that. I also taught the first crypto course at Booth University of Chicago and doctoral research in monetary sovereignty and cryptocurrency. And pretty much anywhere else in the world, I feel like a bitcoin sort of luminary, but then here, it’s really a great honor to be with you guys. So thank you.

Also, just as one comment. It’s not a question. A little unfair to have two people like that teaming up on Professor Peterson and also misspelling his name. But because of that, I’m going to give him a softball.

So what fundamental challenges—at least to the United States overall regulatory system—does the ability to avoid the SWIFT system internationally for transfers when a nation like El Salvador could host a bank that can receive or transfer value in dollars because it’s dollarized or Bitcoin? And obviously, everyone can comment, but it’s intended to play into your theme there.

Prof. Christopher L. Peterson:  So I think the most plausible use case scenarios for crypto assets, especially Bitcoin, are in countries that have unstable fiat currencies and also have government controls on the way that they can move money around. I’m not naive that -- I mean, there is government oppression and tyranny in our world, and there’s mismanagement of economies, and crypto assets do provide some benefits to that. And that’s one of the reasons that, like snowmobiles, I don’t want to ban them.

But that being said, though, I think that some of the benefits of those crypto assets are often oversold and that one of the things that’s particularly useful about math puzzle artificial currencies is that you could do a sales job with them and convince people into doing things that are against their best interest. That’s the concern I have domestically. And I’m not sure I got exactly -- so if you’re -- I think I took your point to mean that in comparison to SWIFT processed money transmission, there might be some advantages to crypto assets. But maybe I missed your question.

Edward “Coach” Weinhaus:  Well, so if you’re on the SWIFTsystem internationally, your dollars, America sees them. El Salvador is both because it’s bitcoin, which is money not on the SWIFT system, and it’s dollarized. So it also has a SWIFT system, and its banks can theoretically hold both of them.

Prof. Christopher L. Peterson:  In El Salvador?

Edward “Coach” Weinhaus:  Yeah, in El Salvador.

Prof. Christopher L. Peterson:  I guess that makes sense. I didn’t know that, but that makes sense.

Edward “Coach” Weinhaus:  I didn’t know if you saw any implications for that. I mean, Caitlin might be a little closer.

Prof. Christopher L. Peterson:  I hadn’t thought about it.

Caitlin Long:  Cross border is definitely one of the most important use cases for this technology—cross border, being able to move money quickly. One of my clients at Morgan Stanley took -- it took seven days for them to move their own corporate cash from their manufacturing subsidiary in Thailand to the mothership in California—seven days to move their own cash. And just being able to move that cash same day—this was 10 years ago now— we calculated would have saved them $200 million of capital. That’s the use case.

Brian P. Brooks:  I don’t want to belabor this and not get to the questions, but I’m just going to -- I’ll try and sharpen a response to this, which is, A, I think the premise of the question is that, somehow, bitcoin transactions on blockchain are invisible, whereas SWIFT transactions are visible by the Treasury Department and by the sanctions regulators, right? That’s kind of the premise.

People who work in crypto know that that’s just not true. Blockchains are public ledgers, and there are gigantic companies whose entire business is tracking movements across blockchain from wallet to wallet. So when people say—and this is largely false—but when people say, “Oh, my God. All of this money went to Hamas,” I mean, the truth is a very small amount went to Hamas and hasn’t gone to Hamas in nine months because they stopped accepting bitcoin.

But when they did, the reason we know that is because it’s transparent, and chain analysis can tell us when Hamas got the bitcoin. But the premise is one that you hear a lot, which is, “This is all secret” versus SWIFT is not secret. There’s nothing secret about bitcoin. Bitcoin is a public ledger that everyone has access to. And they’re giant companies whose whole business is tracing movement from person A to person B.

Prof. Christopher L. Peterson:  Can I just chime in on that? It’s not secret, but it is opaque. I mean, chain analysis can figure it out as they did in a bunch of the big scandals, but—like Mt. Gox and other early things—but it’s opaque. They can figure it out. Government regulators sometimes can figure it out, but lots of people can’t.

Caitlin Long:  No, no.

Prof. Christopher L. Peterson:  And that’s just bitcoin. And it doesn’t include tumblers.

Caitlin Long:  It’s not true. There is an effort right now by a gentleman named Nick Carter. He’s actually paying out bounties for citizen journalists, and he’s paid out now 30 different bounties for exposing the truth of how little money went to Hamas. It is absolutely possible, if you have the right technology skills, you don’t need to be a company.

Hon. Patrick J. Bumatay:  Okay, let’s go to the next question.

Questioner 2:  Yeah, thank you. I’m curious. One or all of the panelists, what’s your thought about the proposed digital dollar, either in relation to or in comparison to crypto?

Brian P. Brooks:  So I’ve spoken a lot about this. What you’re referring to is like a U.S. central bank digital currency. So almost every central bank in the world is talking about central bank digital currencies. I have an enormously strong civil libertarian opposition to this concept. The concept basically is, once there’s a CBDC—and there’s a lot of assumptions behind this comment—but once there’s a CBDC and we no longer intermediate transactions through the banking system, we now have people having direct clearing with the central bank.

That makes the central bank capable of deciding which transactions can clear and which transactions can’t clear. And you might think—and I used to get this a lot when I was the controller—you might think, “Well, this is America. It’s not China. We’re not going to prevent you from buying cigarettes or snowmobiles or whatever.” I think we all know the fallacy of that comment, right? We all know the fallacy of that.

I sat in my office one time with the CEO of one of the largest banks in the world, and he told me that they were looking at whether they could change the way that they did credit card processing to prevent their card from being used to purchase firearms. And I said, “Would that apply only to credit cards or also debit cards?” He said, “Both, anything with our Visa membership.”

I said, “So even when it’s a debit card—so it’s my money. It’s not your money. You’re not lending me money, even on a short-term basis—you won’t let me buy a hunting rifle to go hunting with my dad the way that I did when I was 12?” “Yes. Well, it’s just too dangerous.” That’s the thinking that makes CBDCs scary.

The rationale for CBDCs is what Caitlin says. It’s instant settlement versus the latency that we have in today’s system. But for that, we have stablecoins, which have incredibly high velocity: instant transactions, privately issued, not controlled by political actors. I don’t want the government to tell me that I’ve burned enough gas this month or I’ve smoked enough cigarettes this month. I’m very worried about that, and I see that as an inevitable outcome.

Caitlin Long:  Fully agree. Just full disclosure. Custodia was granted the patent by the USPTO in July of 2022 for a tokenized bank deposit, which is exactly the private version of a U.S. dollar—taking in a dollar deposit and turning around and issuing on an open public blockchain a token for that dollar. And you might have seen what the Federal Reserve said about that.

Hon. Patrick J. Bumatay:  Any quick response?

Prof. Christopher L. Peterson:  I have concerns about whether or not it’s going to be safe and sound, whether or not there are going to be technical details, whether it’s going to be hackable. And I’m a lot less worried about the government overreaching because The Federalist Society will come for them and will stop them.

[Laughter]

Hon. Patrick J. Bumatay:  Yes. Professor McGinnis?

Prof. John O. McGinnis:  Yes. John McGinnis, Northwestern I’d like to ask about what I see as a paradox of crypto and whether it might be solved, which is that cryptocurrency, while they are decentralized—at least in our current world—really need more centralized holders. They need wallets or banks or custodians who are regulated, of course, by centralized actors themselves.

Is there a possibility in the future that will you see blockchain and cryptocurrency create structures that will compete and so we’ll have a more decentralization all the way down, even holding these matters, and therefore, have alternatives to some of the more centralized regulatory and centralized holding structures we have?

Brian P. Brooks:  Or as the saying goes, “Turtles all the way down.” So what I would say is that the promise of blockchain is not that the ecosystem is decentralized. The promise is that the network control is decentralized. In other words, the validation of transactions is decentralized.

Clearly, for any kind of foreseeable future and for retail use, they’re going to be centralized on and off ramps. I mean, you have to buy your bitcoin somewhere, and you have to download a piece of software to have a wallet, and some maker is going to make that.

So for me, I think about it less, as is the whole eco -- will there be banks? Yes, there will still be banks. Will there be custodians? There’ll still be that. There will still be technology companies that have CEOs. That will all still exist. The question just is, “Will you have something different from the automated clearing house, which is owned by 16 banks, versus the Bitcoin network?”—which has how many nodes? 12,000? 14,000?

Caitlin Long:  Oh, no, it’s more than 40,000 nodes now all over the world.

Brian P. Brooks:  All right. So tens of thousands of nodes all over the world totally unconnected to each other, none.

Prof. Christopher L. Peterson:  None of them using any power from coal or oil

[Laughter]

Brian P. Brooks:  Yeah. Well, I mean, kidding aside, not if they’re making money, but that’s a different point. I mean, the real point just is, will you still have banks? Yes. Will you still have custodians for retail holders? Absolutely. The question is about the underlying network. Can you have a user-owned network versus an investor-owned network like the Clearinghouse or SWIFT?

I think thinking that the other stuff is going to be centralized. It’s a false premise that a lot of people have, and they attack crypto because Coinbase is a corporation, and therefore, they think Bitcoin isn’t decentralized. I think they’re two different things, is the way I think about it. How do you think about it?

Caitlin Long:  Yeah, I would agree. Also, it’s an interesting question about what is the role of a bank? We look at banks because we’re so used to dealing in -- thinking about money being credit. We look at banks as credit-based institutions. But if you look at the history of banking globally, what banks originally were were just money warehouses where they stored people’s gold. They were just custodians, and they did business for a fee.

The concept that banks have to be a lender in order to be a bank is relatively new in banking history. It used to be that lenders were separated from payment organizations, which were just service providers.

So one of the nice things about the Wyoming charter is it goes back to the roots of banking, where your bank is not your counterparty. You’re not taking credit exposure to them. Brian made the reference earlier about the debit cards, that that was my money. Legally, it’s not. I think most of you all know that when you deposit money in a bank, you’re making a loan to a leveraged organization, okay?

So if we actually look at banking and say, “Well, a bank, under U.S. law is legally a depository institution, which is a corporation that is bestowed with the right to take U.S. dollar deposits.” That is a very specific definition. And if a state wants to create a depository institution that cannot lend because all it’s doing is being a service provider to its customers—not being a counterparty to its customers—that’s a powerful concept, and it is certainly not without precedent in the banking world.

Hon. Patrick J. Bumatay:  Okay. Let’s take two questions at a time, and the panelists could address them together. So I think we’ll start with your side. Go ahead.

Keith Rothfus:  Keith Rothfus from Pittsburgh, PA. Good to see you, Brian. I’m curious about the custody issue because, as I understand custody banks, if you’re holding an asset, it doesn’t become an asset of the bank. It’s threatened. They’re not supposed to be pledging it. The wine in Silicon Valley bank was the customer’s wine. It was just being held.

What is the argument if BNY Mellon is allowed to hold or to custody Bitcoin or whatever, what’s the argument? Do the regulators see it -- if you’re holding it, it’s some kind of nefarious thing that we don’t want you touching, like you can’t custody fentanyl or whatever? But what’s the argument that you cannot custody something like Bitcoin?

Caitlin Long:  There is no legal argument. Thanks to what Brian was able to achieve during his time period at the OCC. It is legal for banks to do this. The issue is that there is an unbelievable amount of incumbency bias in the banking system. It’s true in the SEC as well.

Everyone’s watching the assumption that BlackRock—even though small ETF managers, started applying for ETFs for Bitcoin almost a decade ago, but BlackRock is in the driver’s seat—there is an unbelievable incumbency bias among federal financial regulators. That’s not true of the states, but that’s also part of the reason why there is this clash between the states and the federal banking regulators.

Brian P. Brooks:  Can I just tease out? Since we’re at a FedSoc event, let me just tease out two actual legal issues around this that are kind of fun to think about. So two things The FedSoc cares a lot about are the non-delegation doctrine and Chevron. These are two things we really, really care about here.

And what’s interesting is Caitlin’s right. There’s not a legal argument founded in any of these specific provisions of federal banking law about custody in crypto. So what they rely on are these amorphous nondelegation violations you’d argue about safety and soundness and reputational risk.

So nobody’s saying it’s illegal, but that what they are saying is we’re still not going to let you do it because even though it’s not illegal, it could be reputationally risky. And that can mean anything that given regulator wants it to mean.

Hon. Patrick J. Bumatay:  Go ahead.

Questioner 5:  Thanks, Judge Bumatay, for -- I thought this panel was great. My question, I kind of want to piggyback on the professor’s question with -- so I understand the promise of bitcoin to sort of take away that money-printing ability of the government, right?

But I think that it sounds like we all agree that building on layer one, not everyone’s going to be able to transact in layer one. It has to go to layer two, and then there’s going to be these -- Custodia Bank, and there’s going to be wallets, and there’s that centralization. And then you’re talking about the Bitcoin ETF.

Well, it seems to me that the government can come in and regulate on that level. And I guess I’m wondering. How do you see it going forward because it’s not just the promise of the money printer, but there’s also this idea of the peer-to-peer? And personally, I mean, I would prefer that there not be any regulation because I’d like the government not to be in this space at all. But I understand that that’s the way it’s going. So how do we maintain the promise when it is going towards centralization?

Hon. Patrick J. Bumatay:  And let’s get the last question. We can combine the answers. Go ahead.

Aaron Ward [sp]:  Yeah, so I’m Aaron Ward. My question also relates to sort of decentralization. Recently, we’ve seen a trend of the IRS issuing these John Doe subpoenas, where they’ll essentially tell a financial institution, “Give us the data on anyone who’s conducted this type of transaction within the last time period. So give us data on anyone who’s converted, say, bitcoin to U.S. dollars from 2016 to 2019 or something like that.” And they’ll hand these summons to financial institutions like, say, Coinbase. This will often result in getting data from a huge amount of customers. I think in the Coinbase case, it was 10,000 or 15,000 customers they handed data over to.

And when applied, traditional financial institutions, the courts have found there’s no Fourth Amendment expectation of privacy. So these don’t violate the Fourth Amendment. Do you see any reason that this would be different for cryptocurrency compared to traditional financial institutions? And, if not, doesn’t that kind of undermine the purported decentralization benefits? The IRS can just come in and individually target these customers whenever they please.

Hon. Patrick J. Bumatay:  Thank you. Who wants to start?

Caitlin Long:  On the peer-to-peer point, real quickly, no one’s ever shutting Bitcoin down. It’s way past that point. And as a result, we can always go peer-to-peer. Most people -- just like, frankly, if you knew how to make -- how to use the command line interface, you could make all of your telephone calls using the command line interface instead of having one of these devices and going through a phone company. Most people don’t because this provides you with extra security and a good user interface. Bitcoin is well past the point where it will ever be able to be banned, and that is the failsafe, that you can always go peer-to-peer.

Brian P. Brooks:  Yeah. I’ll try and touch on each of those comments. So on the comment over here, the interesting wrinkle on what you’re talking about—about subpoenas and the authority of the government to come and get your records—the interesting authority here is that in truly decentralized situations, there’s nobody to serve.

And so the weird kind of law that has started to arise in this context is people will serve Twitter. They’ll say, “We can’t find the”—what was that thing called? The Nomad?—“we can’t find the Nomad cross-chain protocol because that’s not a company or a person. It’s a protocol.” So we’re serving the Nomad cross-chain protocol by posting something on Twitter. So that’s the kind of craziness you see there. So it’s a little bit different from saying you have an expectation of privacy.

And I would argue, in Bitcoin, you probably have less of an expectation of privacy than you have in a bank account because of the open nature of the ledger. However, you have problems of jurisdiction and service and those things. I mean, to me, that’s what I find intriguing about that.

On the peer-to-peer bit, what I would just say is—and my guess is everybody in crypto has a different theory on this. So I’ll bet Caitlin’s is a little bit different for mine—but the way I think about crypto is there are four things going on in crypto. This is really all you need to know. There’s Bitcoin, which really—honestly, don’t quote me on this—isn’t really a peer-to-peer transaction network. It’s really a store of value. Some people will disagree since the title of the paper is different. But there’s Bitcoin.

There’s then a set of what are called smart contract protocols. And there’s a certain number of those. Ethereum is the most famous, but there are a bunch of others. Those are the networks that exist to facilitate peer-to-peer transactions in an instant settlement, efficiency gaining, financial intermediation kind of way. And so those things are the things that I look to to support that. Then there are stablecoins, which mostly sit on top of smart contract protocols, and then there’s every other damn thing.

So what I think about it is, just because Bitcoin is slow or has whatever problems you think Bitcoin has in no way undermines the foundational relevance of bitcoin to crypto. But bitcoin is not where the next visa network will be built. Somewhere like Ethereum or Solana or Avalanche or Cardano or one of those protocols will be where the next Visa substitute will be built. But again, there are as many different crypto things going on as there are internet companies that, basically, these are internet stocks at some level.

Hon. Patrick J. Bumatay:  Okay. Professor Peterson, you’ll have the last word. You have about a minute.

Prof. Christopher L. Peterson:  Well, all right. First on the peer-to-peer question, look. I get the sort of promise of having people be able to interact with each other without having banks or other big institutions to cause problems for them. But things like bank runs, stock fraud, money laundering are real problems and have been -- and plagued market economies like ours for hundreds and hundreds of years.

We have a bunch of laws that are supposed to try to prevent and protect people from those kinds of problems. Federal regulators are trying to move forward under uncertainty and radical transformation with no additional guidance from our gridlocked Congress—especially our Senate—to try to figure out the way to deal with these problems.

And I don’t think that they’re overextending themselves, and I think that we’re going to need rules that facilitate dealing with those types of problems, whether it’s our current set of rules or a new one. If we could find some way to compromise and get something to Congress, I don’t know.

And then with respect to getting data on users of cryptocurrencies from wallet providers, other companies, I don’t -- we usually have “know-your-customer” rules in banking. And just the fact that you have tried to design your system to not be outside of that doesn’t mean that there might not be a legitimate government purpose in getting discovery for a lawsuit or for an investigation of criminal activity. There are going to be situations where we need to know who has assets because those assets are the proceeds of crime or other inappropriate behavior, and that’s a legitimate function of government.

Hon. Patrick J. Bumatay:  Okay. That’s all we have time left for this panel. Let’s give everyone a round of applause. What a great discussion.

 

[Applause]

11:30 a.m. - 1:30 p.m.
The Future of DEI in Business

2023 National Lawyers Convention

Topics: In-House Counsel Working Group
East Room
The Mayflower Hotel
1127 Connecticut Avenue NW
Washington, DC 20006

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Featuring:

  • Ms. Erin E. Murphy, Partner, Clement & Murphy, PLLC
  • Mr. Patrick Strawbridge, Partner, Consovoy McCarthy Park PLLC
  • Hon. Seth P. Waxman, Partner, WilmerHale; Former United States Solicitor General
  • Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit

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Event Transcript

Hon. Dean A. Reuter:  Okay. Very good. Welcome, one and all. Thank you for being here at our convention. Thank you for your interest in this panel in particular. I wanted to take just a minute. We usually have our practice group people who are in charge of putting together the breakout sessions introduce their respective practice group panels. This is a special session of the In-House Counsel Network, so I wanted to introduce it and just say a few words about the In-House Counsel Network so you know what it is and let you know that we are still open to new members of the In-House Counsel Network.

 

Doing a quick inventory of what was happening in the business world two or three years ago, we thought it would be good to organize Federalist Society members and Federalist Society sympathizers who are working in-house, whether they’re the GCs or principle deputies. And that’s the idea behind the In-House Counsel Network. We looked at our database which has tens of thousands of people, and about 120 or so had identified as working in-house. And that’s what we started with.

 

We started small. We started sort of quietly. And then when we felt like we had our legs under us and had an idea about what we wanted to do and emphasize, we had a launch conference in Chicago last May, so 18 months ago. And since then, we’ve had conferences every six months and a panel at each of the last -- counting this convention each of the last three conventions to highlight the issues that are working in-house. Turns out there are a lot. Now there are 500 people involved who are working in-house. So there’s a lot of interest and a lot of possibilities. If you know somebody who’s working in-house, who’s not yet part of the network, fell free to send them our way.

 

With that, I’m very happy to introduce the moderator of this in-house counsel panel, Judge Tim Tymkovich from Denver, Colorado. Judge Tymkovich was nominated to the Tenth Circuit Court of Appeals by President George W. Bush and confirm in April 2003. So he’s been on the bench 20 years now. Congratulations. He served in a variety of capacities since then. Interestingly since 2008—I consider this giving back in an additional way, in addition to your service to your country, to the academic community and the legal community—he’s served as an adjunct professor of law at the University of Colorado School of Law.

 

I can go on, but I’ve told all our moderators to be brief in introducing their panelists. So I will be brief in introducing Judge Tymkovich. With that, judge, the floor is yours. Oh, can I say one more thing? I apologize.

 

Hon. Timothy M. Tymkovich:  You can say it.

 

Hon. Dean A. Reuter:  I just had a conversation with somebody in the hallway which concluded with him saying to me I’ll see you tonight at Union Station. Okay. You guys get the joke. Good. Don’t go to Union Station. Go to the Washington Hilton up on Connecticut Avenue. Thank you. Now, Judge Tymkovich, thank you.

 

Hon. Timothy M. Tymkovich:  Remember, Union Station. Thank you, Dean, for that kind introduction and for putting this all-star panel together and allowing me to moderate the discussion. I’ve been coming to these Federalist Society events, believe it or not, since 1982 when The Federalist Society hosted its first lawyers’ meeting at Yale University Law School. So it’s great to have a chance to participate in the Society over almost four decades.

 

The Society since that first meeting has become a national forum for debate on the great issues of law and society. And this panel is no exception. On June 23, the Supreme Court issued its 6-3 decision in Students for Fair Admission v. Harvard and North Carolina. The decision took on race-based admissions to private and public universities, closing the circle from Bakke to Grutter to today. While directed at the schools of higher education, the decision was grounded in the Fourteenth Amendment’s equal protection clause. But its legal reasoning resonates beyond its factual setting. How will it apply to different settings like private businesses and state and federal government entities?

 

Many entities have developed and implemented diversity, equity, and inclusion initiatives that set the terms of hiring, promotion, retention, compensation, termination, and possibly more. In a statement shortly after SFFA, the chair of the Equal Employment Opportunity Commission wrote that “It remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.” But others saw the decision as much more sweeping.

 

One commentator noted that Justice Gorsuch’s concurring opinion made it crystal clear that in his view the Court’s rule that an education institution may never discriminate based on race now applies with equal force to employers. Other lawyers argue that it’s too soon to know how the current Court would answer such questions. Nevertheless, lower courts are on the march.

 

Activist groups and litigators around the country are targeting DEI initiatives on a variety of theories, essentially arguing they promote race-based decision-making or even create hostile work environments. Many entities, from Starbucks to state agencies to venture capital funds to corporate board selections to law firms to airline companies, have been sued over their DEI programs. Now the courts and lawyers must navigate the new legal landscape as they seek to apply the holding of SFFA.

 

Today’s panelists are well suited to educate us on the issues and challenges businesses will face going forward, so let me introduce today’s panelists in the order of their initial statements. First to speak will be Patrick Strawbridge, who’s a partner at the Consovoy McCarthy and represented Students for Fair Admission in its suit against the University of North Carolina. Patrick has represented a broad range of individuals and institutional clients on matters of con law, financial and securities regulation, environmental laws, complex commercial disputes, and consumer protection statutes. Prior to joining his firm, Patrick was a law clerk for Justice Clarence Thomas.

 

Next up will be Erin Murphy, sitting next to me. She’s one of the most widely recognized and one of the nation’s leading Supreme Court and appellate advocates. She’s a partner at Clement & Murphy and has argued dozens of cases in appellate and trial courts throughout the country, including the Supreme Court and nearly all federal courts of appeals. Does that include the Tenth Circuit?

 

Erin E. Murphy:  That’s the only one I haven’t done.

 

Hon. Timothy M. Tymkovich:  Okay. Well, you’re welcome.

 

Hon. Seth P. Waxman:  You’re really missing something.

 

Hon. Timothy M. Tymkovich:  Erin clerked for Chief Justice John Roberts on the Supreme Court also.

 

And our third speaker is Seth Waxman, who’s co-chair of WilmerHale’s Appellate and Supreme Court Litigation practice. Seth argued in defense of Harvard’s admission practice in SFFA and has served on Harvard’s legal team since the suit was first filed in 2014. Although he did not clerk on the Supreme Court, he is one of the country’s premier Supreme Court and appellate advocates, having served as the 41st Solicitor General of the United States from 1997 to 2001 and participated in at least 80 Supreme Court appellate arguments in those capacities. Welcome, panel, and thank you for joining us today.

 

Okay. We’re going to start with some opening statements, and there might be some rebuttal. We’re going to have a conversation on these issues throughout the afternoon. And we will take questions from the audience sometime around 1:00 or 1:05 for those keeping track. With that, let’s get started.

 

Patrick Strawbridge:  I want to make it clear that the goal of this panel is not for it to go on nearly as long as the SFFA arguments themselves went on.

 

Hon. Seth P. Waxman:  Yeah. We’ll need a bathroom break.

 

Hon. Seth P. Waxman:  That would have been really nice.

 

Hon. Timothy M. Tymkovich:  I can feel your pain.

 

Patrick Strawbridge:  The old chief’s method it would have moved much faster.

 

Hon. Seth P. Waxman:  There was a point at which the clerk came out and told all the advocates the chief justice just wants everyone to know that there will be a ten minute break in between the two arguments, which seemed fine, except that two and a half hours went by and we were still in the first argument. And I was sitting at the backup table waiting to argue the Harvard case with the current Solicitor General, and I leaned over to her and said, you probably don’t have this problem, but I am 71 years old. I had at least eight cups of coffee this morning, and I am no longer able to concentrate on anything that’s going on here.

 

When they finally did break, something happened in the Supreme Court I have never seen, which is the jam packed Supreme Court immediately every single person jolted up and went running out the closest door. And there was a 15 minute break at the end of which the only people back in the courtroom were the justices and the arguing lawyers. The entire public was left standing in line at the one men’s room and one ladies’ room available. But we’re not going to do that.

 

Patrick Strawbridge:  Thankfully. Thank you very much for the invitation and for the introduction, and I appreciate the panelists up here appearing beside us. This is always a very useful forum, and I always enjoy coming here to watch. And I’m happy to be able to participate this year. And I appreciate that.

 

I also have one other piece of -- it’s not a disclaimer. I have another comment I’m morally obligated to make every time we talk about these cases. And that is that these cases were really the brainchild and the driving force behind them was my dear departed friend and law partner Will Consovoy. Will deserves all the credit for the victory that our client was able to achieve in this case. I always go to these functions and I ask people just very briefly with a show of hands how many of you were lucky enough to have the opportunity to interact with Will Consovoy at some point.

 

Some of you I know have seen him arguing in front of you before. I would encourage everybody who raised their hand and who knew Will to go on and to try to dedicate yourself to serve with the same commitment and humanity that Will did. It’s a model that I try to observe, and I just have to say that when we talk about these cases.

 

So the topic of this panel is what does SFFA portend or what does it say about the future of DEI policies in the workplace. And we can have lots of debates about what constitutes a DEI policy, and there’s very much an eye of the beholder question that could be asked as to is this practice DEI? Well, it could be described as DEI, and maybe that’s fine. Is this practice DEI? Well, it is described as DEI, and it’s emphatically not fine.

 

I will start this discussion with the proposition that as a matter of law I don’t think SFFA really should’ve changed that much about DEI practices in the workplace. And what I mean to say by that is I do not think that racial considerations in hiring, providing benefits, training people, or promoting them were proper before SFFA was issued. And obviously I don’t think that they’re proper now.

 

SFFA was obviously an attack on what we would consider a loophole in the Supreme Court’s approach to strict scrutiny in racial classifications. It was a loophole that was very specific to higher education. And I don’t think that that loophole ever should have been viewed as supporting or expanding what was permissible either in a state or municipal government workplace or in a private workplace under Title VII.

 

And Grutter itself obviously emphasizes that if you go back and read Grutter, and you could even go back and read the concurring opinion in Bakke or controlling opinion in Bakke, however you want to view Justice Powell’s opinion. It also is very clear that it was talking about the higher educational context, that is the context in which both those cases arose. And there’s limiting language all over the opinion that says it’s limited to the unique context of higher education.

 

And of course we knew thanks to the Supreme Court’s decision in the 2000s in Parents Involved that whatever the value of the diversity rational was in Grutter and in the higher educational context, the Supreme Court was unwilling to expand it even to K through 12 education. And so if it doesn’t even hold up through K through 12 education, I don’t know whatever basis there would’ve been to presume that some sort of racial preference regime could survive outside of the educational context entirely in the workplace.

 

And I think that there were other clear warnings of this fact as well, indeed some that long predated Grutter. Adarand [Constructors] is a very good example of where I think the Court drew a fairly clear line that a nonremedial program for federal contractors could not deploy racial classifications. There’s a similar case involving broadcast media licensing. There was the Ricci case in 2009 that I think made it very clear that fear of liability could not justify racial classifications in public hiring. And even as recently as the Bostock case, the Court was very clear in interpreting the language of Title VII that says that if you are making a decision that is somehow a function of sex, that is permitted by Title VII’s clear language.

 

I will leave for other panels, thousands of other panels past and future, as to the sustainability of the reading of the term “sex” in there. But obviously Title VII also includes the term “race.” And so to the extent that Bostock is saying if you are making decisions based on race you are violating Title VII, which I think a lot of people read it to say at the time, I think that was as clear a statement of law as anybody needed long before -- maybe not long before but several years before the Students for Fair Admissions decision came out.

 

Now, all of that is not to suggest that Students for Fair Admissions decision is somehow irrelevant to employers. The fact that there were a number of warning lights popping up on your dashboard every time you got into your car for five trips before doesn’t mean on the sixth trip now you should ignore the warning lights. And SFFA, I think, makes very clear to the extent that there was a desire to employ racial classifications in promoting or training or hiring or even in employee compensation or in benefits provisions, it obviously undercuts the suggestion that there can be some sort of abstract goal of racial justice that doesn’t have any individualized harm.

 

It obviously talks about the importance of ending racial discrimination, meaning we end all racial discrimination. So to that extent, I think SFFA is just simply another in a long line of cases that strict scrutiny applies. If you’re not doing direct remediation for immediate past discrimination, you’re almost certainly going to fail to uphold a racial classification. So that is my opening remark.

 

Hon. Timothy M. Tymkovich:  Thank you. Erin?

 

Erin E. Murphy:  Thank you, judge, and thanks to FedSoc for inviting me here today and all of you for joining us on what is certainly I think one of the more pressing questions that as the opening remarks indicated, that everybody in pretty much any area is confronting no matter what kind of company or business or public/private you have. There’s a lot of questions right now.

 

And I think that’s partly because while pretty much everything Patrick just said about where the law is is right—it’s true that the Court made very clear that this line of cases was about kind of an exception to the general rule that created kind of a greater toleration of the use of race in the higher education context—as a practical matter I think there’s a bit of a public perception that it’s almost the opposite right now. We are at a moment where we have the Supreme Court putting out an opinion in this area at the same time that DEI initiatives are probably at their height, kind of the highest level that they’ve been in quite some time, which creates kind of a bit of a dichotomy from the perspective of the way I think a lot of the public is thinking about this issue, the way companies are thinking about this issue, the way boards might be thinking about this issue, people who aren’t lawyers that aren’t kind of focused on it through that lens.

 

It’s almost like the diversity concept that was built around these cases in the higher education context became the blueprint for thinking about how do we extend all of that into the context of private companies and employment and all of these other areas. And Patrick’s right. That is certainly not what the Court was ever saying it was doing, and by and large the Court has said no, in that context you’re not supposed to be taking race into account.

 

Now, I think a lot of where the rubber is going to meet the road is the Supreme Court has a line of cases that says, yes, companies can have voluntary affirmative action programs. And there’s a lot of debate about what exactly that means. Certainly, you can read those cases to allow for kind of a relatively loose conception of what it means to have a remedial program and what it means to have something that is designed to advance the interest of your particular business.

 

I’m not sure that’s the way a majority of this current Supreme Court would read those cases, and I think they may be more inclined to say, look, the only exception we were ever trying to recognize in the context of Title VII is for true remediation in the sense of if you, yourself, as a company has engaged in some sort of past discriminatory practice, certainly you can remediate that. But if you’re talking about kind of taking a broader approach to remediating what are viewed as kind of the broader discrimination that’s occurred in society and history, I think that’s something that’s going to be really hard to get this Court to think is the right way to understand Title VII or the right way to understand even its cases that have allowed a little bit more room in the Title VII context. And certainly we know a couple of justices have already made very clear that they don’t see it that way. And Justice Gorsuch lays out a pretty compelling argument that if you take Bostock seriously, it’s hard to reconcile that with the use of race in employment contexts.

 

But I think the other really critical question in all of this is obviously a lot of employers are private organizations. A lot of companies are private organizations that are not bound by the equal protection clause. And so some of the important questions are what is the reach of the federal statutes that are the statutes that operate here? Because there’s a lot of law about Title VII, but certainly not every aspect of DEI initiatives has to do with actual employment decisions.

 

There are initiatives that companies have engaged in that involve things like just broader grants, kind of just broader community service efforts, charitable giving, all of those types of efforts that are going on in companies that don’t fall within the bucket of Title VII. And some of those have been challenged. They’re challenged through Section 1981, which raises questions about -- Section 1981 covers contracting.

 

And so then you have to get into questions about, okay, what does and doesn’t count as contracting on the part of a company? So some of these threshold questions I think are going to be a lot more important right now. Even in the Title VII context there’s a lot of law about what is and isn’t a decision that’s covered by Title VII. But there’s open questions there.

 

The Supreme Court’s hearing a case in December about the understanding of what’s covered by Title VII. And there’s a bit of an interesting dynamic at this point because generally the EEOC has taken about as broad a position as it can take on what counts as an employment decision covered by Title VII, which creates some interesting dynamics if you end up having a court that makes very clear that that means all of those decisions and all of those actions are actions that are going to be viewed kind of more through an SFFA lens.

 

So I think a lot of the litigation here to keep an eye on is not just the question of how do these equal protection principles apply through the various statutes that matter here but also what is the reach of those statutes. And that as Patrick said at the outset DEI is a very large bucket that covers a lot of things. And what this case means for straight up decisions about who to hire and fire, etc., may be relatively clear. Whereas it may be a lot harder when you get to things that are further away from that, things that involve just efforts to broaden the applicant pool or things that have nothing to do with employment decisions at all and are just basically corporate initiatives driven by corporate giving and such that don’t implicate Title VII and get into some trickier questions about a very differently worded statute that has a very different scope.

 

So I am not Patrick who I know who is litigating pretty much all of these issues everywhere, so I am sure --

 

Patrick Strawbridge: [inaudible 00:23:03].

 

Erin E. Murphy:  -- he has strong views about the scope of both. To me both in the higher education context and more broadly I think this is really the beginning, not the end, of the conversation with the courts about what is permissible in this area.

 

Hon. Timothy M. Tymkovich:  Thank you, Erin. Seth?

 

Hon. Seth P. Waxman:  Well, I want to thank Dean for inviting me here and thank all of you for listening to me. When I heard Judge Tymkovich say that he’s been attending the FedSoc convention -- well, it wasn’t a convention then but FedSoc meetings since 1982, it made me realize that I guess I’m also old enough to say that I also have been pretty much not attending but speaking at FedSoc meetings (laughter) I think without exception since 1982, not because I am a member.

 

I’m not a member of The Federalist Society or the American Constitution Society for that matter, but I feel like these events and similar events that provide an opportunity for our profession to speak amongst itself and to others about interesting questions and differences of opinion is so important. And it seems like it becomes more important every year as the broader American society becomes more tribal and shrill and sort of uncomfortable and unwilling to engage with people who might have different ideas or might come from different perspectives. So I like being here, and I appreciate the annual invitation.

 

I have to say that I’m feeling a little deflated right now because I agree with everything that Erin said and much more with what Patrick said than we normally find ourselves when we’re sitting at counsel table in those instances with a podium in the middle. And so I think a lot of what you’re going to hear from me is -- and among the panel is not all that different. I certainly agree with Patrick’s opening remark and Erin’s concurring remark that the SFFA v. Harvard and North Carolina cases had nothing to do with Title VII or employment decisions.

 

The things that were legal and illegal under Title VII and whatever the yet undiscerned scope of Section 1981 is were just as illegal the day before the Supreme Court decided the case than afterwards. I also agree that, nonetheless, there are some important clues that private employers can take in terms of how they structure their own employment practices by what the Supreme Court majority opinion did say in the SFFA decision when it near the end of the majority opinion talked about the kinds of things that of course even universities can continue to consider and continue to do. And so I’ll say before I actually -- I’m doing the prebuttal before I do my sort of opening remarks, but I can’t let the opportunity -- I can’t just drone on with my opening remarks without coming at Patrick with something. I think --

 

Patrick Strawbridge:  It’s the point of the panel, I think.

 

Hon. Seth P. Waxman:  I think everybody would be disappointed.

 

Hon. Timothy M. Tymkovich:  The kumbaya moment’s over?

 

Hon. Seth P. Waxman:  No, no. No, no, no. I’m search for opportunities where we won’t be kumbaya because I know everybody has enjoyed a sumptuous and delicious lunch, and this is the appropriate time of the day when the body’s natural rhythms suggest that if something exciting isn’t really happening it probably would be better just to close your eyes.

 

So I do disagree. The fact that the Supreme Court in SFFA, if we’re talking about the diversity rational, has reversed decades of precedent and now has held that diversity itself, the interest in diversity and the educational environment and perhaps extrapolating beyond doesn’t constitute a sufficient compelling interest to justify the use of race as a decisional factor under strict scrutiny does not at all mean that diversity considerations are not valid, they’re not important, and that private companies are not precluded from prioritizing that if it is consistent with the corporate culture and the values that the corporation -- the kind of workplace that the corporation wants to foster.

 

And so I’d like to basically make two points. One is I think that thoughtfully designed corporate diversity, equity, and inclusion programs are not only legally permissible but from my perspective I think they’re important both for businesses that have those values and for American society more broadly and that there are within the bounds of what constitutes DEI -- and I totally agree with Patrick that it is a vague term that can mean all sorts of things to people and is not that useful as a concept. It’s an expression of goals; it’s not an expression of the means by which companies that want to achieve or promote those goals can go about doing it.

 

And I’d like to suggest that there are a lot of kinds of corporate DEI initiatives that are entirely lawful and valid. And I never thought that my practice would come to providing advice to corporations about something like their HR departments and what their programs are. And I honestly didn’t think about it for one millisecond in the ten years that Patrick and I were litigating the Harvard case. But I do find myself now contacted by lots of company general counsels who are on the one hand getting threatening letters saying, you’re violating the Constitution and you better stop doing X, Y, and Z, or we’re going to investigate you or sue you and on the other hand letters from other law enforcement people and shareholders and stuff saying what do you mean you’re not doing these programs? You’re not doing enough. And it’s a genuine question.

 

So let me just make a couple of points. One is with respect to DEI. There is now a very rich and deep body of social science research that shows that properly designed DEI efforts correlate positively with financial performance but interestingly, so far as I’m aware, that demographic diversity in and of itself doesn’t. And so demographic diversity alone can fail to achieve financial benefits without the kind of equity and inclusion measures aimed to ensure that a company’s employees all feel supported and that they can thrive at work. I think that the data shows that DEI initiatives can enhance companies’ competitive position, their agility, their innovation, and their brand perception.

 

Now, the other thing I would say is that our nation is now remarkably diverse in a way I never could have foreseen when I was growing up back in the Elizabethan times. And yet it is distinctly conscious of race, privilege, other demographic factors and differences. And my own view—and this is my view—is that by training employees on the benefits of principles of diversity and equity and inclusion and creating programs that ensure that all employees are supported that corporate America acknowledges these realities, equips their teams to achieve and can act on their own values.

 

And my second point is that there are many DEI practices that are entirely lawful. As I said and as Patrick originally outlined, DEI is a vague term that’s named for goals, not the measures that are designed to achieve them. And I think entities including private companies can aspire to share DEI goals but develop and adapt measures that are tailored to their own environments and their own goals that are suited to their particular needs and their communities and their contexts.

 

I think an unfortunate side effect of the amorphous nature of the term “DEI” is that it can be cast as some sort of threatening boogeyman in which nobody is really sure which practices are being discussed. And it’s led to a lot of castigation and confusion and championing of practices without a real focus on what is or isn’t permissible. And so let me just be clear about what I’m talking about in terms of defending and advocating for thoughtful, lawful DEI practices.

 

It is clear—and I agree with my other panelists—that long before SFFA v. Harvard was decided and in fact long before it was brought it was entirely clear that race based employment decisions, that is decisions on hiring, payment, job allocation, etc., etc., that are based on race qua race as the Supreme Court calls it, have been illegal under Title VII for decades. There was no Grutter, Bakke, Fisher exception to the ban on using race for its own sake to make employment decisions. On the other hand, there are lots and lots of things that can be done in the context of DEI programs that are entirely permissible, that focus on topics involving race, involving gender, involving other characteristics. And they can be tailored to the likely interests and experiences and needs of people with particular backgrounds so long as they are available to and open to all employees.

 

And so for example, let me just tick off a laundry list of the types of DEI programs that I think, again, tailored to a company’s particular interests and needs, are not racially exclusionary and that foster DEI goals. I think Erin mentioned recruiting efforts and casting a wider net. Outreach efforts for employees that cast a wider net and diversify the pipeline of potential candidates entirely lawful and perhaps laudable; application materials that underscore -- that don’t prioritize or in any way suggest that race is a decisional factor but underscore whatever importance an employer places on principles of DEI so that potential employees understand the environment that they’re going to be coming into if they’re hired and what will be expected of them entirely lawful; mentoring and training programs for employees who have faced some form of adversity in their lives, including though by no means limited to those for whom adversity is somehow tied to demography; programming by companies for employees and officers and directors that are focused on particular topics including the histories and contributions of members of minority groups; employee resource and affinity groups that -- including for minorities, women, and others, so long as all of these groups are available and open to all regardless of their identity; and training sessions that bring awareness to unconscious bias, that inform the employees of the company’s views on the business benefits of diversity in all of its forms, and that instill the corporate values of inclusion, equity, and respect. And I think at least the frame in which I’ve been advising corporate employers about this more or less go along those lines.

 

Now, we can argue at the margins about -- and I suspect that at least Patrick and I will argue at the margins about some -- at least I hope so because even though I’m as old as the ages I still hope to be litigating important issues. And Patrick provides a delectable array of outrageous and controversial law opportunities for that. But look, corporations -- as Erin said, corporations are not bound by the equal protection clause. They’re not bound by the First Amendment. They are in fact First Amendment speakers, and they’re entitled to speak and make decisions in support of their values so long as those values don’t -- so long as that implementation doesn’t violate a federal or state statute.

 

I’ve been thinking for personal reasons very deeply for the past 32 days about the Hamas attack on Israelis and the consequent war. And one of the most immediate reactions was when a bunch of Harvard students on the second day of the slaughter came out and said that the blame for this is entirely on Israel and the Jewish people, Davis Polk wrote letters to three 3Ls that it had given offers to saying the view that you express doesn’t in any way reflect the values of our law firm, and we’re not going to hire you. We can agree or disagree about whether these individuals should be tarred with those particular statements with which they align themselves, but there’s no argument that corporations and law firms can’t make cultural decisions that support those values.

 

Hon. Timothy M. Tymkovich:  I suppose a lot of it like most things in life, the devil’s in the details. Patrick, you’ve been on the frontlines of looking at specific examples of how these initiatives are deployed in businesses, I assume public entities and the like. What are you seeing on the frontline? Are these mostly educational and high level training programs, or are they something else?

 

Patrick Strawbridge:  Well, I think that there’s -- I think when my friend Mr. Waxman says there’s nothing wrong with having goals; there’s nothing wrong with having sort of aspirations, I think actually it is a very fast line from an alleged goal or an aspiration to an intent, and the intent is to achieve a result. And we saw this in discovery.

 

I’m not going to speak specifically to the Harvard case, but in some of our university cases if you got a witness from one of the DEI offices, one of the many DEI offices on campus and you got them on the stand and you asked them under oath are you using race to achieve a certain outcome in your department, whether that’s students or grad students or professors in hiring your staff, and of course, oh, no, no. We just have these goals. But it’s not about the numbers. We just want to make sure we understand how we’re doing compared to our community or our society. But it’s not a quota. It’s not a target.

 

But inevitably, all the actual underlying analysis boiled down to numbers. There were comparator numbers to all their fellow institutions. There were reports at the end of the year that said this is how many we had from this group last year, and this is how many we had this year. And I would submit to you that that just -- I mean, it’s a bit of a Motte-and-bailey argument. It’s like oh, no, these are just aspirations; these are just goals. But if your goal is to achieve or if the way you’re measuring whether you have achieved diversity is by the composition of your workforce, then I think that’s at least a pretty strong prima facia argument that you are engaged in unlawful discrimination of whatever category it is that you’re so carefully tracking.

 

I don’t think it matters if -- I don’t think the answer to that changes if you argue that it’s important to the culture of your institution that you have a particular makeup or a particular constellation of people working in your office. If you are breaking down your workforce by race and if you are publishing whether you call them goals or benchmarks or comparative charts that look at your workforce based on some sort of protected characteristic, then I think that is extremely strong evidence that you are engaged in improper racial discrimination.

 

I don’t think that there’s anything -- I certainly don’t think -- most people would agree that there’s nothing wrong with efforts by corporations to ensure that they are providing equality of opportunity. And the difference between equality of opportunity and equality of result is one of the debates in this particular area of law that goes back to when Seth first started speaking at The Federalist Society. It’s always been, I think --

 

Hon. Seth P. Waxman:  Patrick was in short pants, then.

 

Patrick Strawbridge:  That is true. I think that that’s always been the debate, but my experience in both what I’ve seen in litigation and generally in the culture is that in the last few years, five or ten years even, those lines have gotten increasingly blurred and the current view of many people who operate in this area and certainly of the activist populations who are antagonizing for greater representation is that the only thing that matters is the equality of the result. And the only thing that matters is the numbers. And it’s not a theoretical thing.

 

I would commend to folks if you want to do a deep dive into the Harvard record there was an amicus brief filed by the Hamilton Lincoln Law Institute—and I don’t know if Ted Franks’ in attendance in here or not, but I always like to give him credit or give his lawyers credit—that highlighted some very specific examples of corporate compensation being tied to the content or the demographic makeup of the divisions that they were involved in. And there are other examples, public examples, out there of racial pricing discounts. If you are offering mentors on a racially exclusive basis to people of the same race, I think that violates the law.

 

And I think in my experience there are many people of all races who find a lot of these practices -- setting aside their legality, they find them offensive. They find them in some cases infantilizing. They find them in other cases to be based ultimately on stereotypes. If you are making judgments about somebody because of their membership in any particular community, it is very easy and very quick to see how that just boils down to a simple stereotype. You are assuming something about that person’s views or experience or you’re assuming something about what they can contribute to the office based on a characteristic that is not causable to whatever outcome you are presuming that they can provide.

 

So in my experience I do think that a lot of the initiatives here are not justifiable, and that doesn’t matter whether they’re profitable or not to the company or if the company thinks it’s good business sense. I think our history has shown and a lot of companies if they were put under oath might admit that engaging in certain racially discriminatory activities might actually be beneficial to their bottom line, but the law does not tolerate that was an excuse.

 

Hon. Timothy M. Tymkovich:  Erin, what do you see as threats to companies when they implement these types of programs should inside counsel come to your law firm and have you review the HR materials? Do you want a new practice now? What would you say?

 

Erin E. Murphy:  Look, I think what this conversation is reflecting and what we’ve seen in practices it’s just a really -- it’s a fine line and a slippery slope. You start out with goals, and there may be nothing wrong with the goals. But we quickly see -- and I think some of this goes to that kind of diametrically different perception culturally right now that I was talking about that leads to results that are quite striking.

 

Just as one kind of powerful example, we seem to all three of us be in violent agreement that it was perfectly clear before SFFA that you could not have a program that excludes people on the basis of race. Yet not just companies but several large law firms had programs that were doing that. These are entities that if anyone should know the law about this stuff, it’s them. But nevertheless we got to a point where that was becoming kind of commonplace.

 

And I think that there’s a real danger in that when you sort of start with the goal and the goal is laudable and you’re looking and thinking, wow, it seems like we have a problem with diversity or we have a problem with retention on a diversity basis, there’s nothing wrong with that. But you do have to give a lot of thought to, okay, how are we going to address it. If it’s we’ve realized we have a retention problem and maybe some of that is because of mentoring, well, that’s a reason to kind of think about how do we restructure everything and ensure that we have a good mentoring program that’s meaningful for everybody because some people seem to need more mentorship than others as opposed to let’s single out the people who we think need mentors and give them something that we’re not offering to other employees.

 

I think if you start from that principle of it’s always going to be problematic if you’re offering something -- if you’re excluding people from something that you’re providing, whether -- sometimes it can be at the level of compensation -- if you’re doing that, you’re going to have a real problem. And that, I think, carries through even in things that are kind of softer aspects of the workplace. If you’re providing something, whether it’s the special bonus, the special kind of scholarship entry into the workplace, or it’s just something that seems softer like mentorship, if you’re making those distinctions on the basis of race and only offering them to certain groups or on the basis of sex and offering them to certain groups, I think that’s where you start to get into trouble.

 

So I do think given -- it’s really tough, I think, for companies right now because I think a lot of these programs are driven by a lot of external pressure or pressure from whoever the investors in the companies are. And we all know from being people who work with companies and work with private equity groups and all of that there’s not always a complete understanding of the law. And people do come at it sometimes from that end of look, this is what publicly it seems like we need to be doing right now, so let’s do it.

 

And I think that’s how we ended up in a rather remarkable place over the last five years where we had some companies that were essentially doing like straight up quotas or we will not hire you or utilize you if you don’t put people of a certain race on the work. I think that all starts to become really, really problematic. And so while it’s all well and good for us to kind of say DEI on the front end is good and it’s a laudable goal, the devil really is in the details.

 

And frankly, if I were a company right now, I probably would get legal advice pretty routinely on what you’re thinking about doing because I think there’s just become such a disconnect culturally in what’s permissible as compared to what I think the Supreme Court is telling courts and telling the public is actually permissible -- that there’s a real risk of kind of crossing that line even unintentionally.

 

Hon. Timothy M. Tymkovich:  Relatedly there’s --

 

Patrick Strawbridge:  Excuse me for jumping --

 

Hon. Timothy M. Tymkovich:  Yeah, go ahead.

 

Patrick Strawbridge:  -- back in before Seth. I’ll be brief, but --

 

Hon. Seth P. Waxman:  No, I’d rather follow you.

 

Patrick Strawbridge:  I did want to address -- and this sort of goes to that point, or at least one of the points that both Seth and, I think, Erin are getting at. And that is that there is equally a relatively developed body of social science that says the implementation of a lot of these DEI programs, especially the ones that focus on race, whether that’s trying to address the concept of privilege or antiracism, are actually a net negative on the workplace. And they’re a net negative on workplace relations, and they actually increase dissent and strife among members of the workforce.

 

And I think, of course, that is an important lesson for us all to bear in mind, and it’s an important lesson that SFFA at least does reiterate, which is that when you divide these people into categories and you speak about whiteness, it shouldn’t be considered any more permissible than speaking about Blackness or Asian-ness or Hispanic-ness. These are relatively poisonous concepts, and it’s not just me saying that. There’s social science that suggests that as well. So I think that a suggestion that we should stop focusing on this so much and that we should stop having goals that are organized around these demographic characteristics is a good one.

 

Hon. Timothy M. Tymkovich:  Seth, company brings in -- it has a pretty aggressive DEI program, maybe along the lines that Patrick’s saying, that may contain contested ideological or political or philosophical concepts. And you have an employee that is offended by these. He thinks that he’s being targeted because of his race. Hypothesize a white employee, and he objects to the training program. He gets fired and files a claim through retaliation. Is that something that we might see flowing out of these programs, and how can our corporate counsels avoid that type of scenario?

 

Hon. Seth P. Waxman:  Well, let me answer your question directly, judge, and then go back and make a few supporting points that once again endorse but with some qualifications what my fellow panelists are saying. Look, if you’re describing a situation in which an employee believes that she or he has been subject to an adverse employment decision or subject to what the strict standards for what Title VII establishes as a hostile work environment, which is also actionable under federal law, that’s what we have courts for. And there are instances in which employers have engaged in that over a long period of time, and courts are available to adjudicate those things.

 

We can all agree, and perhaps we can stop -- in the interest of keeping our audience’s eyes awake and our own, we can stop talking about whether it is permissible for corporations to use race or for that matter gender or other demographic characteristics for their own sake as decisional points. That isn’t allowed. It wasn’t allowed. I agree with Erin that there were instances in which even though it wasn’t allowed it was done.

 

One of the very first companies that contacted me over the summer to come in and do an audit of their program actually had a program in which division vice presidents were told that their compensation, their bonus at year end would turn among other things on the number of minorities that they hired over that year. My reaction to that is, look, there’re some things in life that are difficult. There are some things in life that are actually easy. This is easy. You can’t do that. You couldn’t do it. You haven’t been sued yet, but you have to stop doing that.

 

And the same is true -- and I think the answer to the question that you gave Erin, which is should companies go to Erin for outside counsel or Erin and other -- the answer is yes because general counselors are subjected to conflicting advice, conflicting pressures. The easiest thing is always to say, look, we’re just not going to do any of this anymore because I can’t lose my job if we’re not sued. And if we never do anything, we can’t be sued for it.

 

On the other hand, that’s not where our society and it’s not where many corporate goals are. I don’t think that the line drawn -- I haven’t found that the line drawn with respect to specific kinds of programs is all that hard. The hardest example is the example that Erin was giving and, judge, I think you were questioning about which is what about some sort of diversity training program that derides the terms I’ve heard are white privilege.

 

I think about, again in the context of this horrible Hamas attack, this student at I think it was Stanford University. The professor basically said if you’re Jewish, you need to stand up and go over there because you are the colonial oppressors. I mean, it's not a work environment, but boy, if that isn’t an actionable hostile environment, I don’t know what is. And no company is going to want to have a program that basically constitutes giving its employees lectures about how worthless they are or undervalued they are or anything like that. That’s common sense, and if it happens, the companies are likely to be faced with complaints, well-founded or otherwise, of creating a hostile work environment. That’s not at all what I have in mind when I say that thoughtful DEI programs are not only lawful but important.

 

The other thing I would say just to harken back to Patrick lest people get the impression that we’re now two peas in a pod is I think there are limits that perhaps Patrick’s comments don’t recognize to the inferences that can be drawn to attention that’s paid to numbers. Quotas, balancing, that kind of stuff can’t be done, couldn’t be done in corporate America before, can’t be done now. On the other hand, companies are allowed and in fact required under federal law and the law of most states to collect -- it has to be voluntary but to collect and report if you’re a government contractor or you’re an employer with over 100 employees, you have got to report on demographic statistics about your employees.

 

Now, we can argue and Patrick will bring a lawsuit that gets a court to decide whether those kinds of reporting requirements, which have existed since at least the Nixon administration, are or aren’t lawful. But the notion that corporations and employers should stop asking potential employees or employees voluntarily to identify their demographic or gender characteristics is completely unrealistic. What I’ve advised employers to do and what I think employers should do is to solicit voluntary answers to that as, for example, the common application does for college applicants but to ensure that that kind of data is not in any event -- is not part of the decisional process in who to hire at what rate. And in fact, the safest thing to do is just not to have that available to the employment decisionmakers. But the notion that just because these statistics are collected one can draw an inference that discriminatory intent is involved is overbroad.

 

Hon. Timothy M. Tymkovich:  I think NASDAQ has a recent rule requiring certain types of data collection that’s up in the Fifth Circuit, I believe. I think California has a statute that encourages or requires certain representation on board of director membership. What’s your take on those types of kind of government actions promoting diversity within the workplace?

 

Patrick Strawbridge:  Well, I think if you’re requiring companies to hold particular slots for people of particular races, it’s unlawful. And I don’t think that’s hard. You are right that there are rules and there is even government statutes that provide for that no doubt with the view that it’s of the best of intentions to increase representation or to ensure a particular viewpoint. But again, I would submit that if we are assuming that putting a certain number of women on your board is therefor going to lead to a particular set of viewpoint exchanges, you are engaged in stereotyping and assumptions about what individuals are going to offer based upon a protected characteristic.

 

I don’t disagree with the notion that collection and reporting of voluntary data is required by some regime, and it is even required for appropriate reasons such as to make sure that we are not discriminating in hiring or selecting who our employees will be or who we might be promoting. But what I would suggest to you and what I have seen at least with my own experience with DEI offices is that this is not a simple exercise in reporting and passing it around once a year. It is a continual focus of interim reports.

 

There is an awful lot of effort spent on comparison with other similar institutions. It is often the subject of individual demands or state of reports that we have to do better on this metric. We must do better on this metric. And I don’t think it’s very hard when you actually take a holistic view at the documents that are being created here to come away with the very strong impression if not the conclusion that this is not just simply an exercise in gathering data to make sure that something’s being missed. It’s an exercise in harping upon the demographic balance with a goal toward achieving an outcome.

 

That will obviously depend upon what the records are in each case, but it is -- I guess I don’t have the same experience with Mr. Waxman at least with what I have generally seen. But it’s been my experience a lot of the literature and some of the training materials that are out there right now do engage in stereotyping, and they do create a hostile situation for folks of particular races. And it is done under the intention of trying to establish an understanding about privilege or to broaden someone’s perspective.

 

But one of the problems -- this is always a problem, I suppose, for government and also for corporations is it’s one thing to have a lofty ideal and to think that you can carefully manage the lines of what’s permissible and what’s not permissible. But somebody at the end of the day gets hired to do this. And at university it seems like hundreds of people get hired to do this. And in companies an increasing number of people get hired to do this.

 

And they are out there taking actions. And to presume that once you have told people that there are good ways and bad ways to take into account people’s demographic characteristics, you are at the risk of how each of them is going to view where the line can be drawn. And I would suggest that that’s a serious liability risk for everybody and counsel against charging them with the mission of trying to walk that line in the first place.

 

Hon. Timothy M. Tymkovich: Erin, what do you see the consequences might be for the affirmative action space, those cases that -- I think you touched on that, but what in this post-SFFA environment we have?

 

Erin E. Murphy:  Yeah. I think that’s really frankly going to have to kind of be the next piece of this that gets litigated because there is this line of Supreme Court cases from going back awhile that says you can have a voluntary affirmative action program of some type within a company. And I think that it’s been run with a little bit, but if you look back at what the Court said is that it has to be on a temporary -- again, harkening back to what they’ve now said in kind of the reasons they ended up getting where they got in SFFA. It has to be kind of specific to your company and your company needs, and it has to be a remedial effort.

 

 And I think -- partly because we have that societal disconnect I think there’s a tendency to think oh, well, that’s pretty easy to accomplish. We have a program, and we’ll have something that’s sort of short term. And it’s specific to us, and of course this is about remediation. And we’re remediating the problem that we seem to have underrepresentation or we seem to have retention problem or whatever it may be.

 

I don’t think that’s likely the way the Supreme Court’s going to end up thinking about that. I think that if you’re really coming at it through a Title VII lens, remediation has to kind of assume essentially you’re remediating a Title VII violation and that you’ve actually engaged in some sort of impermissible discrimination that you need to fix. And if you’re starting from the point of thinking about it as just we have a diversity problem that we need to fix because there’s under-representation of a particular group or we’re having trouble -- women seem to leave more quickly or people of certain demographics are not advancing, that’s really coming at it from the wrong lens because you’re assuming that there’s sort of a problem to fix when I don’t think that’s the type of remediation the Court has in mind.

 

It needs to be, okay, well, let’s look at that and ask ourselves is that because we engaged in some sort of intentional discrimination. We had some Title VII kind of violation somewhere along the line that’s causing those results? Or is it just having to do with lots of other aspects of society? And maybe you kind of take that and you figure out there’s things we need to change within our company.

 

There may be things we need to do to work on retention. There may be things we need to do to diversify the workforce application and all that. But if you take that to the step of no, no, we’re going to have an outright affirmative action program that draws these kind of distinctions, I think the space the Court is leaving at this point for programs that are drawing distinctions on the basis of race and trying to justify those under kind of a strict scrutiny type regime is probably going to be pretty narrow, at least in the context of employment decisions.

 

Hon. Timothy M. Tymkovich:  Seth, you probably argued some of those cases. What’s your take on that?

 

Hon. Seth P. Waxman:  I agree with Erin. Again, I’ve said it so often in this program that I’m afraid my own eyelids are going to drop if I say it again. But I’m not exactly sure what we’re talking about when we’re talking about affirmative action, but I agree with Erin that it’s subject to the restraints that she’s identified.

 

Companies just can’t use race or gender as a decisional factor in how they’re going to constitute or operate their employment systems. And if there’s a problem where we have members of a particular gender or a particular demographic appear to be leaving and not retaining and stuff, the way the DEI programs address this is to try and figure out why and what we can do without making a race-based distinction to make the workplace more inclusive and make people feel like they’re sufficiently valued and supported that they don’t leave and that they stay. And those programs are all to the good.

 

Patrick’s notion that they’re going to be tough cases and there’s some implicit things going on such that companies really ought to just -- all of these efforts are fraught and can be abused, it’s just waving a flag of defeat. It’s not consistent with what companies want and what companies should be doing as responsible corporate citizens of our society.

 

Erin E. Murphy:  I guess I would just say while we all like to think that companies see the line and aren’t crossing the line, it just doesn’t seem to be true in practice. Many people here -- obviously we have people here who are from corporations, but many of you have worked at big law firms. Now, big law firms -- pretty much every big firm is comparing -- is looking at their summer associate class and asking how diverse is it and comparing it for other big law firms and saying how diverse is our class compared to these other law firms’ classes. And the diversity that’s reflected in the summer associate classes at the average firm is often not anywhere close to even just if you were kind of thinking about it as we want, like strict proportionality to society.

 

Now, it’s hard to really look at that and say but race is not being used as a decisional factor here at all. It’s just happenstance that all of these big firms are kind of thinking about it in some loose way and it’s not really impacting their ultimate decisions. To me, it’s the same problem in a lot of companies in employment context that you have in the universities is you think if you don’t say it explicitly, then it’s not an affirmative action program. But I don’t think that’s the way these cases are really going to play out under the principles that the Court is articulating and applying if you take the same principles that it’s articulating in the education context and apply them to a lot of the programs in the ways that hiring happens in a lot of companies right now.

 

Patrick Strawbridge:  I’ll just say that -- now I’m the one who’s in agreement with what Erin said, but I’m in agreement with what Erin said.

 

Hon. Seth P. Waxman:  Well, that’s not that surprising to me.

 

Patrick Strawbridge:  She’s supposed to be the middle ground between us, I think.

 

Hon. Seth P. Waxman:  We’ve sort of narrowed the territory of the middle ground, but we can posit that Erin’s in the middle.

 

Patrick Strawbridge:  The attention to these characteristics, no matter how much we put a disclaimer at the bottom that says “and of course, don’t use this for decision making process” is just not, I don’t think, consistent with what people’s experiences are or what the average person who’s sitting in their office who receives these messages and these updates is going to gather. And to me, what has been most remarkable for the last five or six years on this front and why I think it suggests that there really is a problem and we really should be cautious about using these categories with our employees is just how much express racial contract set asides, law firm internships were explicitly made only open to people of certain demographic groups.

 

We’re all standing up here saying, well, of course that was unlawful, and it was unlawful before SFFA. And it’s unlawful after SFFA. But the examples are too many that I would’ve believed ten years ago of municipalities specifically saying this contracting program is open only to members of under-represented minority groups.

 

And in my experience what happens is when you are so fortunate as to find somebody who has standing to sue one of these programs, immediately they wave the white flag. They get sophisticated lawyers from great law firms like WilmerHale to come in and tell them, well, no, that was a misunderstanding. That’s not how the program’s going to work. We’ve overhauled the criteria. There’s nothing more for the court to do here, and so no order is necessary. And if no order issues from the court, then there’s no cost or liability to the company other than hiring the firm to come in and change their program because you cannot get a fee award, even though it took considerable expense to find a plaintiff and to draw up a complaint and maybe to draw up a PI motion and bring it.

 

And the feeling that you’re left with is this is kind of a catch me if you can type rational where many people know that they will be able to get away with it because there’s only so many Consovoy McCarthy’s out there on that wall enforcing these rights. And if you don’t find a person with standing in a particular jurisdiction, it can basically stay in place unchallenged. And if Consovoy McCarthy is lucky enough to find somebody with standing in a particular jurisdiction, you’ll ask for a do over. You’ll change the program in two weeks, and then you’ll suggest that the case is moot and we should just move on with our lives.

 

So the fact that so many companies and municipalities in post 2020 at this point in our society thought that they could implement programs like that that on their face are expressly set aside for members of particular demographic groups does not vest me with a lot of confidence that these more nuanced deployment of these terms and these criteria within companies or within universities or within governments will be heeded and will be observed.

 

Hon. Timothy M. Tymkovich:  I love it that we’ve gotten to the point where large law firms have to hire other large law firms to audit their DEI programs.

 

Hon. Seth P. Waxman:  Just so long as we’re the ones being hired.

 

Hon. Timothy M. Tymkovich:  And paid.

 

Hon. Seth P. Waxman:  I have to say that the suggestion of Patrick that there are only -- I’ve spent almost all of my career, the portion of my career that I’ve been in private practice, defending corporations in litigation, not just in race cases -- actually not really ever in race cases but in antitrust cases and consumer cases and all sorts of things. The notion that our legal system has provided a dearth of plaintiffs’ lawyers who are willing to take cases on is -- this week I’ve been hired in three different class action cases by a company for cases brought by a dozen different plaintiffs’ law firms. While Consovoy McCarthy is the first among equals, there are more equals than I can name.

 

One of the thing -- Erin mentioned a point -- I see that we have a line up, and I’ll stop talking after this.

 

Hon. Timothy M. Tymkovich:  Yeah. We’ll start taking questions in a moment.

 

Hon. Seth P. Waxman:  Maybe, judge, it was you who asked the question about directors and is it stereotyping to think that if you want to have a woman on your board of directors that’s stereotyping. I have been giving some thought to this issue of directors and the interest in companies to diversify what at least historically have been pretty nondiverse boards of directors. And I don’t mean nondiverse solely in terms of race or demography or gender but in terms of perspectives.

 

It’s entirely -- to my mind it’s good business strategy to want to have leadership, including outside directors that reflect -- that will bring to decisions a diversity of perspectives and experiences. Whether you could say, well, the next two directors are going to be women or the next two directors are going to be African American is, I think, a different question. It is true that Title VII only covers employees, and directors are not employees under the law. But I think the advice that I’ve given is and I think this is not only good business sense but good legal advice is that you cannot -- with directors as with employees you can’t make a demographic characteristic the decisional point.

 

Now, Patrick’s point that we all know that people think in terms of -- because of the way our society is constituted. And as I said at the outset, American society is now bewilderingly diverse and yet very, very conscious, maybe as conscious as any country in the world -- conscious of race and demography. And so if we have to come up with a system in which people don’t do what they’re inclined to do as human beings, which is be conscious of differences, this is mission impossible. We’re dealing with a world in which we’re talking about human beings and the job, the responsibility of corporations and governments is to acknowledge the diversity, acknowledge the current preoccupation with these distinctions, and find programs that channel that into something productive.

 

Patrick Strawbridge:  I would’ve thought that was the point of the Civil Rights Acts, to rise above what human beings are otherwise inclined to do.

 

Hon. Timothy M. Tymkovich:  All right. Let’s take some questions from the audience. Could you identify yourself before you ask a question and keep it short? No speeches. Give me a question with a question mark as one of our other moderators said. Let’s start here.

 

Kai Alberg (sp):  Kai Alberg from Washington State. I’ll start my question with a quick practical example, ask what the panel thinks of it. At a conference last year the HR officer of a private company called Virgin Orbit stated that she was implementing diversity both racially and with sexual preference at each work team, not just company-wide. When asked by somebody from the audience what she would say to a white male who could not get promoted at that company, she said you haven’t shed your white privilege yet. I won’t even talked to you.

 

Company filed for bankruptcy less than a year later. Everybody was laid off, including this lady. But the question is in the absence of any government involvement or government contracts, is there a cause of action for an employee who either cannot get hired or cannot get promoted if he does not fall in one of the favored classes that are being sought?

 

Erin E. Murphy:  Certainly.

 

Hon. Seth P. Waxman:  That’s easy.

 

Patrick Strawbridge:  Yes. Title VII.

 

Kai Alberg:  What would the cause of action be in what statute?

 

Tammy McCutchen:  I hoped to stump him.

 

Hon. Seth P. Waxman:  It would be race discrimination. I’m sorry, but you’re white and you haven’t abandoned your white privilege so you’re not eligible for this job --

 

Hon. Timothy M. Tymkovich:  Is that one of the easy cases?

 

Tammy McCutchen:  I hope to stump you more. Tammy McCutchen, I’m with the Labor and Appointment Practice Group, former management side employment lawyer, former senior DOL official, former in-house counsel who was a government contractor and rewrote affirmative action plans. So Patrick, here’s your next lawsuit.

 

The regulations under Executive Order 11246 require government contractors, of which there are many, to do an analysis of their hiring versus available applicants using census data. And if your hiring departs by 2 percent from the available applicants, you are in danger of losing your government contract. Now, DOL says no quotas, but you can imagine when there’s a government contract at issue there are quotas. All of the panel, does this survive SFFA?

 

 

Patrick Strawbridge:  I would suggest it shouldn’t. Seth might disagree.

 

Hon. Seth P. Waxman:  Well, I’m not sure --

 

Patrick Strawbridge:  We probably don’t have enough facts to give you actually --

 

Hon. Seth P. Waxman:  Yeah.

 

Patrick Strawbridge:  -- legal advice, of course.

 

Hon. Seth P. Waxman:  I mean, if the government is basically saying you are going to suffer adverse contracting consequences if your hiring diverges by more than 2 percent from the available demographic from which you are hiring, to me that’s easy, which is the government, they can’t do that. On the other hand, if the government says, look, government contracts are a privilege, not a right, and we aim as a government to have a society in which by entirely lawful means demographic characteristics don’t become ipso facto one way or the other advantages or disadvantages or credentials or non-credentials and we’re requesting this information for that purpose to keep you conscious of that, that’s not an actionable -- but I don’t know what this Executive Order said either before or after you improved it.

 

Tammy McCutchen:  The Executive Order talks about affirmative action but doesn’t define it. The regulations define it as you cannot have a statistical disparity between your hiring and the census data on available applicants.

 

Hon. Seth P. Waxman:  Well, that’s stupid. There are all sorts of reasons why --

 

Tammy McCutchen:  It’s been that way since 1965.

 

Hon. Seth P. Waxman:  As Patrick is well familiar, count one of SFFA’s complaint against Harvard and what constituted probably 70 percent of the evidence at trial was a claim that Harvard was intentionally discriminating in admissions against self-identified Asian American applicants, a claim that lost in the district court, the court of appeals, and the Supreme Court. But the fact of the matter it was not an available defense to Harvard to say, oh, well, Asian Americans make up 6 percent of the U.S. population but 33 percent of the matriculating Harvard classes. What do you mean? You can still have discrimination even though there’s a statistical disparity. Everybody understands that. And so the way that you’ve described this Executive Order seems odd to be charitable.

 

Hon. Timothy M. Tymkovich:  We’ll take a question over here.

 

Frank Cyber (sp):  Frank Cyber from Chicago. And it’s a follow up question to Tammy’s question. Please comment on the continued viability of 11246 in light of the decision from the Supreme Court.

 

Patrick Strawbridge:  I do agree with Seth that if you’re going to tie liability or the loss of a contract, some kind of penalty under a government program, to the failure to hit a particular target even if there’s a margin of error of 2 percent, I don’t think it’s viable. That’s my answer to that question. I frankly wouldn’t have thought it was viable before SFFA for the reason I said at the very beginning of this juncture.

 

Frank Cyber:  But are the mandates that we have affirmative action programs just because we’re government contractors? Is that still viable?

 

Patrick Strawbridge:  Well, again, the devil’s in the details. Some aspects of a quote/unquote affirmative action program may well do it. If it’s described exclusively as it was by the prior panelists, I would say no.

 

Frank Cyber:  Thank you.

 

Hon. Timothy M. Tymkovich:  Over here.

 

Francis Menton:  Francis Menton. I’m the Manhattan Contrarian. Also, my perspective on this comes from 40 years with a large law firm, Wilkie Farr. So I think all the panelists have agreed that making race the explicit criterion for hiring is illegal, but isn’t failure to make race an explicit criterion for hiring even more illegal? And isn’t really that the substance of the problem?

 

So my perspective from a law firm, if we did not aggressively do affirmative action and go beyond that and explicitly hire minorities with lower grades, lower test scores, etc. -- if we did not clearly do that, we would not have one single Black associate. No law firm can survive that. You get complaints from the government. You get complaints from private plaintiffs, and you think you can defend that on the ground that, hey, we just applied the same criteria to everybody and made offers on the exact same basis? Well, the other firms are all aggressively recruiting. You’re not going to get one single one, and you can’t survive it.

 

Hon. Timothy M. Tymkovich: Come to a question.

 

Francis Menton:  Am I right or am I wrong?

 

Hon. Seth P. Waxman:  I think you’ve invoked large law firms, and so I think this question really falls in the first instance to Erin who also seems to have a particular perspective about large law firms, having been an emigre from a large law firm and now the named partner in a soon to be large law firm.

 

Hon. Timothy M. Tymkovich:  Erin, comment?

 

Erin E. Murphy:  Look. I think that the comment/question kind of reflects part of the problem. The perception that you could never have any diversity in a law firm if you don’t apply a different set of standards to people of a particular race, I don’t think it’s true. May the numbers not be where law firms want them to be? That might be true. But I think there’s a vast gulf between saying the numbers might not be where we want them to be and saying there’ll never be anybody who’s in the firm that has a different perspective.

 

And if that were really true, I think what the Court’s perspective on this is there’s a broader problem, then, that needs to be fixed. We don’t kind of have the band aid solution of okay, we’ll have one set of criteria for some applicants and one set of criteria for another. And if you really had a firm that came forward and said for us to make this decision would require us to apply two completely different criteria, which would violate Title VII, I don’t think a court’s going to hold that it’s a Title VII violation to not engage in a Title VII violation to fix something that was not intentional discrimination on the firm’s part in the first place.

 

Hon. Seth P. Waxman:  So I would just add that having spent half of my professional career in a very small law firm and now half of my -- well, of my private practice career half in a boutique firm and half in a large firm, I’m pretty conscious of hiring and recruitment and what’s going on. And one of the things, I think, that successful law firms large or small have found is that how well you did on your standardized test scores and what your grade point average is -- when we’re talking about being a success in private practice, they don’t correlate very well at all.

 

And the question of what law firms are looking for when we go recruiting is somebody who seems to have the potential in a broad range of skills, interpersonal and otherwise, that could make them effective lawyers and trusted advisers to clients. And it’s remarkable how poorly that correlates with grades and test scores. And that’s what we found both in my small law firm and my large law firm.

 

We’re not looking at -- if you look at the people at Wilmer who become partners versus the people who we hire coming in, it’s not -- there’s no correlation whatsoever to where you went to law school and where you finished in your class. We try to hire people who went to good law schools and had good legal training and did well in their classes. But just like universities, with the exception of a place like Cal Tech which given its mission is looking for the highest achievers with respect to the STEM disciplines, universities are also not evaluating which applicants are most likely to be successful graduates and members of society based only on one or two particular metrics. And that’s how it’s done.

 

Patrick Strawbridge:  There’s another question which I want to get to. I’ll just briefly say that one of the points I think the question gets to that it’s very much worth reconsidering is the wisdom of disparate impact viability, which is what I gather is really the concern and the rock and the hard place that you’re stuck by there. So if you read especially Justice Scalia’s concurrence in Ricci talking about the equal protection clause, I think there are harbingers for future legal disputes down the line on that point.

 

Hon. Timothy M. Tymkovich:  Next question.

 

Andrea Lucas:  Hi. Andrea Lucas. I’m a commissioner at the EEOC, so obviously I have a vested interest in this discussion. But I wanted to ask Mr. Waxman -- I wanted to push back a little bit on your discussion that it’s fine for companies to generally promote diversity simply based on the idea that it’s good for clients or customer preference or things like that. The EEOC has long had a position that -- and Title VII has long had the position that customer preference and client preference does not support racial classifications.

 

So I just wanted to flip it on the head for you. If all of the social science said that homogeny was good for companies, would you feel comfortable with your clients having general statements saying, well, if this person understands majority culture or the general white culture or they’re going to sell better to our homogenous clients, would you feel as comfortable that not serving as evidence that there might be intent of discrimination, even if there was no racial classification?

 

Hon. Seth P. Waxman:  Can I just interrupt you for one second? Because at four points during your question the door opened, and we have apparently 100,000 people screaming right outside the door. So I don’t know about others in the room, but I didn’t hear enough of your question. Could somebody bar the door for a second and give me what your question is?

 

Hon. Timothy M. Tymkovich:  Note to Federalist Society.

 

Andrea Lucas:  My question is why is a general customer or client or societal preference for diversity a legally relevant question? If you’re selling to exclusively white clients, we would never say that that was justification for only hiring white salesman or white lawyers; right? Why is all the social science that you’re point to or customer or investor preference or any of those things legally relevant to a push for diversity?

 

Hon. Seth P. Waxman:  Well, the question I think is not whether it’s legally relevant. It is --

 

Andrea Lucas:  Or permissible. Why is it permissible?

 

Hon. Seth P. Waxman:  The question of legal permissibility is you cannot use race qua race as an employment factor, period, whether you’re selling to all white people, all Black people, or all people whose names begin with vowels. The question is whether as a business, given the nature of your customer base and the nature of the kind of internal work culture you want to build, whether diversity and a feeling of inclusion is consistent with your mission.

 

You are not the government. You are a private entity that’s entitled to have and express its own values so long as they don’t violate the law. And so taking into account that you are let’s say a consumer products company or a consumer services company that is serving a diverse population and therefore it would be good to have people in the company without engaging in stereotyping have a sufficiently diverse understanding of the world in which they’re selling into is entirely fine as long as you don’t cross the prohibited line.

 

Hon. Timothy M. Tymkovich:  Let’s take a question here and then I’ll come back to you.

 

Questioner 6:  A question about the decision itself, SFFA. The Supreme Court took the pains to draw up -- the majority took the pains to draw up a footnote explicitly stating that the holding did not extend to the military academies. While not explicit, the implication is because of the correlation with employment that those institutions have. And of course Justice Gorsuch’s concurrence, joined I think as I remember by Justice Thomas only, was a concurrence. What’s the confidence level that the current majority of the Court actually would extend the reasoning of the case to private employment?

 

Hon. Seth P. Waxman:  Patrick, he mentioned the military academies, so you have to answer this.

 

Patrick Strawbridge:  The military academy provision in Students for Fair Admissions is now subject to an actual test in two actions that our firm has filed against West Point and Annapolis. Although, I understand your question to be about extension to private employers. Well, my view is it’s not necessary to extend it to private employers because universities were always the exception, not the rule for at least this diversity interest justification, which I guess is sort of what the point of my opening remarks are.

 

I do think and I can confirm in litigation it is being cited by courts as relevant information for setting forth the standard, at least for governmental decision making but also in areas such as 1981 litigation. So I do think it is going to have relevance. I think the principles that it relies upon are drawn from other aspects of law, including in the employment context, so I don’t think it’s irrelevant.

 

Erin E. Murphy:  Yeah, no. That seems right. The interesting question -- I think it’s pretty clear once the Court says we’re interpreting Title VI as consistent with the Constitution, you’re going to get to the same place as Title VII. And the law already was what it was.

 

I think there’s some interesting questions more about 1981. It’s just things haven’t been answered as much in the 1981 context, and the statute is actually worded quite differently. It’s quite different from the modern civil rights laws because it specifically applies to say that you have the same rights as whites. And so they’re just aspects of it because it’s a statute from 100 years earlier that are different and raise some different arguments that haven’t actually been. I think that’s been one of the -- more of the open question in these cases has been what exactly -- does all of this apply the same way in the 1981 context, which matters a lot for both. It can arise in the employment context itself but for all the things that are not covered by Title VII.

 

Hon. Timothy M. Tymkovich:  All right. Last question.

 

Elizabeth (sp):  Hello, my name’s Elizabeth [inaudible 01:34:33]. That’s actually what I was hoping to ask about. It’s Christmas season almost, and so all the holiday catalogs are arriving. And I’ve noticed a lot of companies are particularly choosing and advertising and carrying products by companies owned by certain demographic groups.

 

And obviously that’s not employment based, so I wonder about these other sorts of quotas outside of Title VII. I think as the panel’s made clear, Title VII’s pretty clear. But what about other preferences? I think Uber offered some preferences for products carried on its platform based on the race of the owner of the company, for example. So I’m wondering how it looks outside Title VII for companies making decisions based on race and gender.

 

Patrick Strawbridge:  I’ll just briefly say it can be very dependent on what the particular state that this is originating in. There are some state laws that are more protective and more expansive than others. California in particular has a relatively expansive prohibition on race and other demographic factors being used in business transactions, but it does depend on those cases. I think we all agree there is some level of advertising or recruiting even if it is intended to expand the audience for a product or to increase the recruiting base for a university or an employment that will probably fall well on the safe side of what you can do. But the devil is in the details a lot of times with both.

 

Erin E. Murphy:  Yeah. And the only thing I would add is there is a level at which you start to bump up against some First Amendment interests of the private company, and I think all that gets a little bit trickier when you get further away from traditional employment decisions or very traditional contracting.

 

Hon. Timothy M. Tymkovich:  I’m sorry. I don’t think we have time for a last question, so would you help me thank our excellent panel? I have two public service announcements. One, Union Station is out. Capitol Hill Washington Hilton. And also there’s a very fine historical document exhibit upstairs by the Remnant Trust, and there’s a copy of a 1350 Magna Carta. So go check that out when you have a chance during a break. Thank you. Thanks for joining us again.

 

 

11:30 a.m. - 1:30 p.m.
Thursday General Luncheon

2023 National Lawyers Convention

Cabinet Room, Chinese Room, District Room, East Room, Senate Room, State Room
The Mayflower Hotel
1127 Connecticut Avenue NW
Washington, DC 20006

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11:30 a.m. - 1:30 p.m.
Do States Enjoy a Special Solicitude?

2023 National Lawyers Convention

Topics: Federalism • Separation of Powers • State Courts • State Governments • State Constitutions
State Room
The Mayflower Hotel
1127 Connecticut Avenue NW
Washington, DC 20006

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Over the last two decades, states have played an important and increasing role in federal policymaking through state-led litigation. Unsurprisingly, a state’s Article III standing is often a hotly contested question—with increasing attention from the Supreme Court and what some might argue are scattershot results. Are states subject to traditional standing analysis, as the Court said in Biden v. Nebraska (2023)? Do they get “special solicitude,” as the Court observed in Massachusetts v. EPA (2007)? Or are there concrete injuries that the Court simply will not remedy, as in United States v. Texas (2023)? Is there a common thread to the Court’s standing analysis and—more importantly—what does the original public meaning of Article III have to say about state-led litigation?

Featuring:

  • Mr. Kyle George, Principal, Kyle George Law Group; Former First Assistant Attorney General, State of Nevada
  • Mr. Eric Hamilton, Solicitor General, Nebraska Department of Justice
  • Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
  • Moderator: Hon. Jennifer Walker Elrod, United States Court of Appeals, Fifth Circuit

Overflow: Cabinet & Senate Rooms

Speakers

Event Transcript

Elbert Lin:  Can I have your attention? We're going to go ahead and get started. All right. Are we good? Okay. Thank you. Good afternoon. My name is Elbert Lin. I am a partner in Hunton Andrews Kurth. But, relevant for today's proceedings, I am the chair of the Federalism & Separation of Powers Practice Group, which put together the panel that you're going to hear from today.

     

      I have three very limited responsibilities. First, for those who need CLE, I'm supposed to remind you that you have to check in and check out every day. And you do that by scanning the QR code that's in your program or on placards that are around here. So if you haven't done that, you should go ahead and do that.

 

      My second responsibility is to briefly advertise the Practice Groups. So, as I mentioned, Federalism & Separation of Powers Practice Group put together this panel. Practice Groups, in general, have put together some of the other panels. And we also do a lot of the programming that you see online through The Federalist Society throughout the year. It's all staffed by volunteer people like me who are practicing lawyers. And so, if you're interested in getting involved with that, please reach out to Nate Kaczmarek.

 

      And then, finally, I have the honor of introducing our moderator, Judge Jennifer Elrod. She has asked—or I perceive it as an order—that I keep it short, and so I will do so since I'm in the business of doing what judges ask of me.

 

      Since 2007, Judge Elrod has served as a circuit judge on the United States Court of Appeals for the Fifth Circuit. Prior to that job, Judge Elrod was appointed and then twice elected judge of the 190th District Court of Harris County, Texas, where she spent over five years presiding over more than 200 jury and non-jury trials. Judge Elrod is a graduate of Harvard Law School, where she was an active member of the Harvard Federalist Society, an Ames Moot Court finalist, and a senior editor of the Harvard Journal of Law & Public Policy.

 

      And so, without further ado, please join me in welcoming Judge Elrod, who will introduce our esteemed panel.

 

Hon. Jennifer Walker Elrod:  Thank you. Thank you so much.

 

      Well, you've come to lunch to hear a discussion and perhaps participate in the discussion on whether states enjoy a special solicitude. So, by a show of hands, do states enjoy a special solicitude? Raise your hand if you think yes. Raise your hand if you think no. Raise your hand if you were just looking for a lunch to attend today that didn't have a full room. Okay.

 

Prof. Christopher Walker:  Are we going to do that at the end too?

 

Hon. Jennifer Walker Elrod:  We are going to do it at the end too. Exactly.

 

      Unsurprisingly, a state's Article III standing is often a hotly contested question with decreasing attention from the Supreme Court, and what might -- and what some might argue are scattershot results. Are states subject to traditional standing analysis, as the Court said in Biden v. Nebraska in 2023? Do they get special solicitude, as the Court observed in Massachusetts v. EPA in 2007? Or are there concrete injuries that the Court simply will not remedy, as in United States v. Texas in 2023? Is there a common thread to the Court standing analysis? And what does the original public meaning of Article III have to say about state-led litigation? We're so blessed to have such fine panelists to be able to help us navigate that.

 

      And I want to first thank the Federalism & Separation of Powers Practice Group for bringing this together and bringing together these experts to discuss the topic. Separation of powers is a principle near and dear to many of our hearts. And as Justice Scalia explained so many times to so many student groups and others, it is the structure of our constitution and our separation of powers that protect our freedoms in America. So thank you for those of you who spend your time studying and thinking about separation of powers issues.

 

      Without further ado, our panelists are as follows: Christopher J. Walker is a Professor of Law at the University of Michigan. Prior to joining Michigan Law faculty in 2022, he spent a decade teaching at the Ohio State University Moritz College of Law. He previously clerked for Justice Anthony Kennedy of the U.S. Supreme Court, worked on the Civil Appellate Staff at the U.S. Department of Justice, and served on the Senate Judiciary Committee staff for the Gorsuch Supreme Court confirmation. I think that's all three branches of government. He teaches and writes on administrative law and federal courts. He has also chaired the ABA Section of Administrative Law & Regulatory Practice and serves as one of the forty public members of the Administrative Conference of the United States. He also blogs—I don't know when he has time to do that—at the Yale Journal on Regulation. Please welcome in joining Chris Walker, professor.

 

      Next, we have the privilege of being joined by Kyle George. Kyle serves as a Principal Attorney at the Kyle George Law Group and comes to us with extensive experience representing agencies. He previously served as Nevada's first Assistant Attorney General under Attorney General Aaron Ford, where he supervised over 100 attorneys across nine divisions. And he was responsible for legal representation of Nevada's state agencies, boards, and commissions and participated personally in civil litigation and regulatory and administrative proceedings. Kyle George has served as a General Counsel to the Nevada Governor, counsel and policy advisor to two members of Congress, Chief Deputy District Attorney, a litigator in private practice. And he currently advises clients on state and federal regulatory matters and government affairs and relations. He's also a chemist, and we were talking about how that affects his practice. He earned his J.D. from Georgetown, and he holds a bachelor’s and master’s degree in chemistry from the University of Nevada, Las Vegas. And he served as the president at his school when he was at UNLV, so congratulations, Kyle George.

 

      Finally, and not least, but last, we are pleased to be joined by the Solicitor General for the State of Nebraska, Eric Hamilton. As Solicitor General, he is the highest-ranking litigator for the State of Nebraska and the principal legal advisor to the Attorney General. Before joining that Department of Justice, he served as Assistant Solicitor General in the Texas Attorney General’s office, and he argued cases in our neck of the woods, in the Fifth Circuit. He was also an Associate Counsel to the President in the Office of the White House Counsel. He practiced at Williams & Connolly in Washington, D.C., and he clerked for Justice Thomas M. Hardiman on the U.S. Court of Appeals for the Third Circuit. He holds degrees from Stanford and the University of Nebraska-Lincoln.

 

      We have a distinguished panel.

 

      Professor Walker -- or may I call you Chris, as you said?

 

Prof. Christopher Walker:  Yes. Better. Better.

 

Hon. Jennifer Walker Elrod:  Could you tell us what in the world are we talking about? What is special solicitude of the states? It's very alliterative, but what does it mean?

 

Prof. Christopher Walker:  Yeah. And I think to understand it, we have to kind of go back to standing more generally. So I'll kind of give you my fed-courts lecture in 60 seconds of standing.

 

      So, under Article III of the Constitution, it says that federal courts have judicial power to hear cases and controversies. And what do "cases and controversies" mean? Well, during the Rehnquist Court and the early years of the Roberts Court, we got a lot more clarity from the Court on standing as a constitutional constraint on judicial review. Lujan v. Defenders of Wildlife kind of comes immediately to mind. But there are a number of cases, especially in the environmental law context, where the Court came in and said, "There are three really, really important principles when it comes to our judicial power. Now, we're not out there to just issue advisory opinions. We're not out there to hear general grievances that could be done through the political process. Instead, we're here to hear cases and controversies, and because of that, you have to have three ingredients: injury, causation, and redressability."

 

      Injury is that it has to be direct and concrete and particularized. So, if it's abstract or generalized, that's not usually going to be enough to get you into Article III of federal court. Injuries also have to be actual or imminent, as opposed to speculative or hypothetical.

 

      Causation, it has to be that the injury is fairly traceable to the alleged violation that you're saying happened.

 

      And, finally, redressability. Whatever relief you're seeking has to be likely to remedy that injury in some degree. In other words, speculation or probabilities aren't going to be enough here.

 

      And so, as conservatives or originalists—maybe we'll talk more about originalists—our understanding of Article III judicial power was cases and controversies only, not advisory opinions, not diving into issues that could be solved by the political branches. And where we took a wrong turn was in Massachusetts v. EPA. And you all know the case. This is about whether the EPA can regulate climate change. The EPA decided that it couldn't, and the State of Massachusetts brought suit to force them to regulate -- to issue regulations dealing with climate change.

 

      Jonathan Adler, in a Virginia Law Review article, kind of tells the full story of what happened. I'm not going to repeat that here, but I want to give you the basic story. Massachusetts, in its briefing, argued that it had standing and kind of hinted it might have some special standing. But it didn't actually cite the key cases on that. There might not be any, but it didn't go into that. At oral argument, not surprisingly, my former boss, Justice Kennedy—who is a big state's rights, federalism person. I love him for that. I think states are very special in our federal system, in that sense—asked a key question to say, "What's your best case?" and didn't have a great answer to our argument. And he said, "Well, what about Georgia v. Tennessee Copper? Does that give you state special solicitude standing?"

 

      Justice Stevens is sitting there—an evil genius, Justice Stevens. He's such a wonderful—and he knows, like, "I have an in. There's my fifth vote." Justice Kennedy loves states. He loves federalism. He grew up in this idea that each state should exercise its power against the federal government. And so, you have this opinion that comes out where Justice Kennedy -- that's written by Justice Stevens, but Justice Kennedy casts the deciding vote -- where Justice Stevens writes for the Court, "States are not normal litigants for the purposes of invoking...jurisdiction." They have special solicitude for standing purposes.

 

      I'll note as a side note there are accounts that afterwards that the career officials at the EPA, who have just lost the case, celebrated. Maybe there was champagne. Maybe that's a -- maybe that's a topic for another panel at a convention in the future.

 

      The academic commentary from originalists and from rabid center scholars was scathing that this upended the standing doctrine and not just because it recognizes states have special standing, but it watered down the requirements of injury, of causation, and of redressability in ways that would do great damage if it extended to other cases. And that's what we have like today. And we see that in the case that we'll talk about from the Supreme Court this last term that you see this kind of rising up, perhaps again, of special soliciting standing where states aren't treated like normal litigants. They're allowed to aggregate the claims of all of their citizens or allowed to raise other types of sovereign interest along those lines. But I think we'll get into the details in a minute. But that's the basic idea of how state-special solicitude standing differs from what we think of ordinary individual standing.

 

Hon. Jennifer Walker Elrod:  So does special solicitude apply to all of the prongs of standing, or is it just a prong-one tool?

 

Prof. Christopher Walker:  I think it's all of them. So if you think about Massachusetts v. EPA and get -- drown the other. Go read the Virginia Law Review article. But even though -- so on injury, you can understand your -- one way to have special standing is if you just aggregate in the interest of all your -- all the individuals there.

 

      So they'd originally said, "It's a coastline case." And the Supreme Court -- just to be clear, Justice Stevens said, "Direct injury to the coastline is one. But there's also injury to all the citizens that the state has within. There is another." And so, you do have the injury to be able to aggregate, but you also have causation of addressability of it's really hard for an individual plaintiff to go in and say, "If you force the EPA to regulate, my property values are going to be higher." It's a lot easier to go in and say, "Well, I represent the whole state, all of" -- at least someone's going to have their property values along those lines. So I do think it actually infects all three prongs of the standing analysis.

 

Hon. Jennifer Walker Elrod:  And one more question if you don't mind.

 

Prof. Christopher Walker:  Yeah.

 

Hon. Jennifer Walker Elrod:  Is it different than whenever people articulate that they have special parens patriae or special sovereignty concerns? Or is special solicitude just one way of grouping all of those concerns?

 

Prof. Christopher Walker:  Yeah. I view it as one way of grouping all of those concerns. I'd be curious if others disagree. But I think it's a mish and a mash of the various different types.

 

      And to be clear, states have had exceptions for certain types of standing that we might go through long before Massachusetts v. EPA, where there's a sovereign interest or some very, very limited parens patriae interest. But I do think that's just -- virtually, EPA really just kind of blew it all up.

 

Hon. Jennifer Walker Elrod:  Okay. Well, Chris seems to think Massachusetts v. EPA was the end of the world. These folks who used to be in the solicitor general's offices or still are -- would you say that it's the end of the world? Or was it the beginning of all things good for states?

 

      Okay. Kyle, would you like to take this one or --

 

Kyle George:  Sure. I'll take this one. So as a starting principle, the answer is yes. States do enjoy a special solicitude. End of panel. Have a great day. So thank you.

 

      But I think the more nuanced question is, really: When should it be applicable? Under what circumstances is it appropriate to set and so on? So Massachusetts v. EPA, I think it was an unfortunate case to really bring this principle forward because of certain issues. I think the biggest weakness in that case is, perhaps, the redressability part. And I think in the sense they do note that, that this standing fails as a matter of redressability, perhaps more than the concept that states have a quasi-sovereignty that entitles them to some standing that ordinary citizens would not.

 

      I do think going back a little bit further, and perhaps I'm victim to that trap set by the brilliant justice, but I do think that this is truly a states' rights issues. When states ceded some of their sovereignty to join a federal system, I think that we have to retain some check on the federal government. And this is a mechanism by which we can do so. So I do think that conceptually, it's a valid principle. I do think that that particular case is a little bit flawed because of other defects, but not to the underlying sovereignty that I think underpins special solicitude.

 

Hon. Jennifer Walker Elrod:  Did you have any initial thoughts? Is it a good thing? Or is it terrible, like Chris says? Is the sky falling?

 

Eric Hamilton:  Yeah. I'm certainly of the view that special solicitude is a good thing for the country. I think you look at --

 

Hon. Jennifer Walker Elrod:  Do y'all both put -- did you all put this in your briefs when you had briefs as special solicitor?

 

Eric Hamilton:  I think you see states talk about special solicitude differently in briefs. You have some states that will actually say special solicitude is relaxing standing. When we talked about special solicitude in the United States against Texas's brief that Texas filed, we said that states, of course, are subject to the traditional standing analysis, but there is still the special solicitude that is overlaying all of that.

 

      As for special solicitude and its effect on state-led litigation, I think it is definitely a positive. There are a lot of cases that would not otherwise be litigated without states as plaintiffs. The private bar has different disincentives to bring litigation that don't apply to state attorneys general. A lot of these cases are very expensive to litigate. Of course, state attorneys general employ public servants. And also, cases can be perhaps not in the best interest of some private clients for other reasons.

 

      MOHELA, for example, the state-created student loan servicing company that Missouri has, of course, is not the only student loan servicing company that was affected by the Biden administration's loan forgiveness plan, but I think other student loan servicing companies can reasonably wonder whether suing their federal government client could have a negative effect on that relationship. So I think it's --

 

Hon. Jennifer Walker Elrod:  Can you tell us a little bit about -- more about the Biden v. Nebraska?

 

Eric Hamilton:  Sure. So Biden v. Nebraska is a case that Nebraska, as well as a group of states, brought challenging the Biden administration's loan forgiveness plan. And the state coalition had a few theories of standing. One was that -- one was specific to Missouri. And it was that this state-created student loan servicing company was injured by the fact that it would now be processing fewer student loans. But then, there were also other injuries alleged. For example, the group of states alleged that the forgiveness plan will actually reduce their tax revenue because the loan forgiveness is deductible, and the states all fixed their -- or at least, this coalition of states fixed their income tax to whatever the federal income tax starts with.

 

      And it's very interesting what the Court did in choosing to limit its analysis to MOHELA and not go into the tax theory that the other states offered because, I think right now, the fight really isn't so much about special solicitude. The United States hasn't asked the Supreme Court to overrule Massachusetts against the EPA. It hasn't asked the Court to walk away from that term. But the real fight is over theories like that tax theory, what the federal government would call indirect injuries. And the Court stayed away from that and, instead, decided the case on a theory that looks somewhat like you might see private plaintiffs bring.

 

Hon. Jennifer Walker Elrod:  Okay. And do you think that the parens patriae and the sovereignty theories are just wrapped up into this special solicitude? Or do you think they're distinct theories?

 

Eric Hamilton:  You see them talked about both ways. I think that really goes to: Are states correct when they are saying that special solicitude is actually relaxing standards? Or are we just talking about these uniquely state injuries, like injuries to my ability to -- well, the states, of course, gave up immigration authorities in joining the Constitution. And so, there are special injuries that flow from the state's decision to join the Constitution and cede some of their sovereignty.

 

Hon. Jennifer Walker Elrod:  Right. And that's what Kyle said something about that earlier. And that reminds me of the -- I see one of my very distinguished colleagues, Judge Smith, in the courtroom here today in the lunch room.

 

Prof. Christopher Walker:  Can I jump in?

 

Hon. Jennifer Walker Elrod:  Yes.

 

Prof. Christopher Walker:  Can I jump in on that?

 

Hon. Jennifer Walker Elrod:  And it makes me think about the DAPA case where it was on that: you gave up your sovereign rights on aliens, and the state argued that it interfered with that. And they relied on Massachusetts v. EPA for that proposition.

 

      Go ahead.

 

Prof. Christopher Walker:  Yeah. I wanted to jump in on Biden v. Nebraska because I -- they took a wrong turn there.

 

Hon. Jennifer Walker Elrod:  Who took a wrong turn?

 

Prof. Christopher Walker:  The Court, the majority of the Court, when it comes to standing.

 

      And, MOHELA was -- it's a weird setup under state law. It's an instrument of the state, but none of what they've gained or lose goes in the state coffers. And it operates kind of independently, kind of sealed. To be sure, they would lose about $40 million here, although tuition's going to go up, law professors are going to get paid more with student -- I shouldn't disclose. I have a conflict of interest here that can't -- student loan cancellation will only help me. So they're going to get money on the back end. So there are other reasons why they wouldn't want to sue because, at the end of the day, the gravy train's going to just keep on running. And the state didn't have a connection to say like, "We, the State, are going to lose money. We're going to be directly harmed standing in the shoes for MOHELA."

 

      And the Court actually doesn't even go there. Chief Justice Roberts does one of his kind of nice tap dances around it all and says, "Well, the harm is actually based on MOHELA, which the State kind of controlled but doesn't really. But, well, okay, they're part of the State. And, but more importantly, it's going to hurt all the citizens of Missouri," and brings it back to special solicitude standing, even though they don't use those words.

 

      And Gorsuch, in United States v. Texas is like, "We're not using these words."

 

      And Alito's like, "Wait a minute," in his dissent in the United States v. Texas, "why aren't we talking about Massachusetts v. EPA?"    

 

      I view this as a really, really, really wrong turn. And just because the Court doesn't use the magic words "state special solicitude standing," they're, in essence, just lobbing on to the overexpansion of that.

 

      And I don't know if you all have reactions on that, but -- and I was just going to put a plug. This isn't just me. Go read Jed Shugerman's article in the Cato [Supreme Court] Review. Go read Ann Woolhandler and Julia Mahoney's forthcoming article, where we all kind of look at this and say, "There's really no way to read Chief Justice Roberts' opinion other than a Massachusetts v. EPA analysis."

 

Kyle George:  Yeah. If I may comment on that, I think some academicians have actually said that the fact that the Court is not using that term, it signifies that it's been eroded in subsequent cases since Massachusetts. I don't know that's true. I think it's -- first of all, to the judge's previous question, I think that parens patriae and state special solicitude, it's a Venn diagram. There's a lot of overlap. But there are some portions of each one of those doctrines that falls outside the overlapping areas. And we don't really need to get into those. The overlap is where we're concerned today.

 

      I lost my train of thought on that one. Do you want to jump in? Do you want to say anything?

 

Eric Hamilton:  Sure.

 

Hon. Jennifer Walker Elrod:  Did the Court lose its way?

 

Kyle George:  I'm sorry?

 

Hon. Jennifer Walker Elrod:  Did the Court lose its way in finding that MOHELA --

 

Kyle George:  No. So -- oh, yes. Yeah. The point I was making is that the Court has been really reluctant to wade into this issue. They threw this bomb out there—this grenade that exploded with Massachusetts v. EPA—and since then, they have kind of sidestepped all the consequences that have come from that -- that have flowed from that. But I don't think it's been eroded directly. I just don't think they've found the right case to really expand on the doctrine. As I indicated at first, why I think the issue with the EPA case was redressability was problematic. I think each of these cases—there's another injury, for example, in MOHELA—might be problematic. So the Court, I think, is biding its time for the perfect case where it's a little bit more cut and dry. We can have a clearer pathway on what special solicitude means because the bad facts, a bad case, a bad law. This is one of those that we just haven't quite found it yet. So did the Court lose its way? No.

 

Hon. Jennifer Walker Elrod:  So, Kyle, you think that they want to expand it rather than put a nail in the coffin and say, "No. We're not doing that anymore"?

 

Kyle George:  I don't think it needs to be expanded. I think it needs to be more sharply defined under what circumstances appropriate. There are some who believe that it should be used solely for procedural defects. There are others who believe that the states should have a much broader power. And, curiously, this is one of those doctrinal things that isn't -- it doesn't fall on ideology. Both conservative and liberal states have relied extensively on this doctrine in the last—what—dozen years?

 

Hon. Jennifer Walker Elrod:  Well, Eric, do you think the Court lost its way in Biden v. Nebraska?

 

Eric Hamilton:  No. And I --

 

Hon. Jennifer Walker Elrod:  Sometimes it's a softball.

 

Eric Hamilton:  Yes, the relationship between Missouri and MOHELA is unique and, perhaps, specific to states, but there still is a tie between the two. The Missouri state government had a role in supervising MOHELA. And MOHELA was kicking back money to the state in the end. I still don't necessarily see that as part of special solicitude, more a wrinkle unique to that particular plaintiff.

 

Hon. Jennifer Walker Elrod:  Okay. Because --

 

Prof. Christopher Walker:  Can I just real quick on that? So in United -- you have this -- I think we hear everything in United States v. Texas because that comes out, I think, a week before Biden v. Nebraska.

 

Hon. Jennifer Walker Elrod:  Can you tell us about United States v. Texas?

 

Prof. Christopher Walker:  Yeah. You see, United States v. Texas is an 8-1 decision where the Supreme Court says, "You, State of Texas, don't have the ability to challenge the Biden administration's enforcement" -- immigration enforcement priority policy memorandum. "You can't do it. That's not something you traditionally -- recognizable as an injury. And we're not going to do state special solicitude standing." Only they don't say that.

 

      The one dissenter is Justice Alito, and Justice Alito's like, "What the heck? Good for the goose; good for the gander. Massachusetts v. EPA. It might have been garbage, but it's our garbage now, and let's use it. And by the way, we just used it -- or we're going to just use it in a case next week." Read his opinion. He's talking about the Biden v. Nebraska. "We're going to use it there, although we're not going to say it by name."

 

      Justice Gorsuch, joined by Justice Thomas and Barrett, write to respond in a concurrence and say, "Oh, no, no. This isn't special solicitude state standing." And I just want to read the quote.

 

Hon. Jennifer Walker Elrod:  Yeah.

 

Prof. Christopher Walker:  And Justice Gorsuch says, "Before Massachusetts v. EPA, the notion that States enjoy relaxed standing rules 'had no basis in our jurisprudence'" quoting Chief Justice Roberts's dissent in Massachusetts v. EPA. "Nor has 'special [solicitude]' played a meaningful role in this Court’s decisions in the years since. Even so, it’s hard not to wonder why the Court says nothing about 'special solicitude' in this case."

 

      Alito would say, "Because you're all hypocrites, and you're using it -- and you're using Biden v. Nebraska in a week."

 

      "And it’s hard not to think," Justice Gorsuch continues, "too, that lower courts should just leave that idea on the shelf in future ones."

     

      Which reminds me of Chevron deference debates, which I know a lot more of this -- where the Supreme Court, well, use tool -- wants the lower courts to use the tools, but when it gets to the Supreme Court, they don't have to follow the same rules. And I kind of just want to ask if you're counting that; Kavanaugh and the Chief Justice are the only ones that are silent here. I think Jed Shugerman might say they took the Fifth on whether they're actually applying special solitude standing. And I really do think that's the dynamic you have with these two cases. And it's really hard. Whether you think there might be other grounds to justify standing in Biden v. Nebraska, I think it's really hard to read Chief Justice Roberts' opinion and not think that he's basically relying on Massachusetts v. EPA. I guess that's where I'm at.

 

Kyle George:  Can I ask a question based on that? So why is there this hesitation to actually say those words out loud? Is it because of lack of desire to expand it, sharpen it, want to claw it back? What's -- do you have any theories on why that is?

 

Prof. Christopher Walker:  Yeah. I do think, like Chevron being a flashpoint for the conservative legal movement, Massachusetts v. EPA was a big flashpoint. So I think there could just be a political story here.

 

      But I think there's something deeper. I do think that most of the conservative justices of the Supreme Court still hold up Scalia and Rehnquist as the standard bearers on judicial review and don't want to turn their back on what they think is probably the original understanding of Article III. It does not distinguish in the text between states and individuals. It just says what judicial power is and really kind of rely on that kind of deep history understanding that he had that developed and really sharpened during the Rehnquist Court.

 

Hon. Jennifer Walker Elrod:  Well, as an inferior court judge -- so when it says, the "lower courts should just leave that idea on the shelf," what are we to do? And that's Justices Gorsuch, Thomas, and Barrett. Are you supposed to write briefs that encourage us to not leave it on the shelf? And are we supposed to -- what do we do with this?

 

Eric Hamilton:  Well, of course, it's a concurrence, so Massachusetts against EPA is still good law, and the federal government hasn't asked the Supreme Court to put it on the shelf. But I do think you're seeing that states recognize they can't just walk into court and wave the special solicitude flag and expect to get a favorable ruling on standing.

 

      And so, that's why I think, for me, the very interesting takeaway about United States against Texas is, you had the parties really very focused on the concept of indirect injuries and whether the chain of causation that Texas had put out there to establish standing was enough. And special solicitude was a part of that argument. But what the Court ended up doing is not taking that argument on. Instead, it focused on an argument that really doesn't have much at all to do with the fact that Texas is a state. So now, backup argument for the federal government that got two pages of briefing in their brief. And so, you still see very much alive this question of to what extent can states rely on these indirect injuries?

 

      And, sure, Justice Gorsuch speaks negatively of the special solicitude term, but in the end, he lands exactly where Texas wanted them to land, which is these indirect injuries were proven in the district court, and they're enough to get Texas into court to challenge the prioritization [inaudible 00:31:45]. And then the same thing, of course, is true with Justice Alito's dissent. He would have also allowed Texas to sue on indirect injury. So I'm very optimistic about the future of state standing after United States against Texas.

 

Hon. Jennifer Walker Elrod:  So it's a rose is a rose by any name. Is that what we're saying? Or you don't call it that, but --

 

Prof. Christopher Walker:  Don't use the magic words.

 

Kyle George:  Right.

 

Prof. Christopher