2024 Annual Supreme Court Round Up

Dean Reuter: Welcome in everyone and welcome to those of you who are watching on C-Span or otherwise watching online. I am Dean Reuter, senior Vice President and General Counsel of the Federalist Society. I am welcoming you to the US Supreme Court Roundup of the Federalist Society, hosted by our DC Lawyers Chapter of the Federalist Society, featuring today the Honorable Paul D. Clement. Now the DC Lawyers Chapter President, Reg Brown sends his apologies and his regards to all of you. He's in a mandatory board meeting today, and so the honor of introducing our speaker falls to me. One housekeeping note before we start, when we get to Q&A, Paul Clement has agreed to take a few questions. There are microphones, since we're recording, we need the questions to be asked from a microphone and also as always, to be in the form of a question. So please avoid making a statement.

And I will say about today's program, this is the definitive US Supreme Court roundup. I think you can watch coverage on all the TV and cable stations to your heart's content of the Supreme Court. 

 

You can read about the Supreme Court term in all the newspapers and periodicals. You can listen to analysis of the Supreme Court term on radio, podcasts, and the internet. You can even, heaven forbid, go to another organization's Supreme Court roundup. But until you've heard the insights and analysis of Paul Clement, you really don't understand what has transpired at the court in its just concluded term, so thank you for being here. Just a word or two on Paul Clement, he's known to so many of you, I'm going to be extremely brief. He was the 43rd Solicitor General of the United States after having served as Acting Solicitor General after having served as Principal Deputy Solicitor General for three years. 

 

He's argued over a hundred cases in the Supreme Court, which I'll let that soak in for a minute, but as you absorb that - a hundred cases - for context, I will let you know that's about a hundred more than I have argued in front of the Supreme Court.So that's an extraordinary accomplishment in and of itself and it is a long, long list of important cases. Not that there are unimportant cases in the court, but many of the iconic cases have been argued by Paul Clement. Most recently, of course, I think everybody in this room knows he is a founding partner of Clement and Murphy. If time permits, Paul, if you could let us know how that's going? I imagine long, lonely, quiet days of you looking out the windows of the firm waiting for clients to show up. Hang in there, they will come. I could go on and on about his career, but I think I've said enough. So with that, please join me in welcoming Paul Clement.

 

Hon. Paul Clement: Thank you, Dean. It's great to be with everybody, great to see this wonderful turnout and it's nice to have a term to talk about that worked out pretty well in the end. I've been to these for a number of years and not every term is created equal. So let me jump right into it and start with a little bit of an overview about the term and then I'll talk about some of the particular cases, including some cases of particular note in the administrative law area, which I'll start off with. But just by way of overview, the Supreme Court this year heard 61 arguments and issued 59 opinions. Notwithstanding that relatively low workload, they still needed until July in order to finish the last cases, which just goes to show that you don't necessarily reduce the amount of certainly separate opinions and work just by taking fewer cases.

I will say my own view is that the court is taking too few cases. Now, as somebody who files the occasional cert petition, I have a vested interest in the court taking more cases, but I still think objectively it is better for the court when they have a fuller docket. I think it is inevitable in the current world that every year the court is going to have somewhere between half a dozen and a dozen controversial cases. And if the court only takes 60 cases, that means when people look at the court, they may think, "Wow, all you do is race abortion and Trump." And I think they wouldn't be that far wrong if the court's only taking 60 cases. If on the other hand, the court's taking closer to 80 cases, I think it's a little easier to point to the idea that the court actually takes a wide variety of cases and is very often unanimous in deciding those cases.

 

Even this term, which certainly had more than its share of important and divisive cases, the Supreme Court decided almost half of its docket of 27 cases unanimously, and there were a couple of other 8-1 and 7-2 decisions. So essentially over half the court's docket was either unanimous or near unanimous decisions. There were also 22 6-3 decisions and just five 5-4 decisions. And I think right from that statistic alone, you can tell that this was a little different term from last year and this was a very good term for the Chief Justice, in particular, where he was not only in the majority in a lot of these 6-3 cases, but wrote some of the most consequential decisions of the term, which were often 6-3 decisions. And it also bears emphasis that in those 22 6-3 decisions, it was not always the same six and the same three. There were actually, about 11 of the 12 cases I think sort of fit what you might think is the usual 6-3 pattern, but half of them are a different group of six and a different group of three, and the same thing is true of the 5-4 decisions.

 

The last thing I will say, and I've alluded to one of these points and I'll make the other, but I think the two justices that stood out this term as having had really terrific terms are the Chief Justice and Justice Barrett. I think from the chief justice's perspective, there certainly have been important decisions, and Dobbs would be the most important prominent example in recent terms where five justices reached a very momentous result and the chief justice found himself either in a concurring position, betwixt and between, or in a dissenting position joined by his more liberal colleagues. And that really wasn't the story of this term and this term the most monumental cases, the ones I'll talk the most about, are cases that which the Chief was in the majority and the Chief often wrote the opinion for the court.

 

And then I think Justice Barrett has sort of been identified by a lot of the media and others as sort of the "It" justice for this term. And I think that's largely because there were a couple of cases including the ballot case from Colorado involving whether President Trump would be on the ballot, where she sort of staked out a position that was a little bit different from some of the other conservative justices, also different from her more liberal colleagues, and really it's maybe the term where her distinct voice started to emerge. And in a sense that doesn't particularly surprise me. I think that, as I may have mentioned last year at this gathering, Justice Barrett is still a relatively new justice, especially since the court, since she's been on it has only been taking about 60 cases a term. We really don't have that many data points in looking at Justice Barrett, so I think it's not really a surprise that it takes until this term for some of the distinctness of her jurisprudence to emerge. And I would also say that to the extent in one or two of these cases, Justice Barrett has offered a unique way of thinking about originalism and that is a sign of the health of originalism and textualism. I mean, when you have a coherent way of interpreting the Constitution, you can have methodological disagreements about how to best apply that methodology.

 

 If you don't really have a methodology to start with, then there's really no reason to have those kinds of disagreements about how best to apply it or whether in finding the original intent of the Second Amendment what matters is 1789 or 1868 and the like. So I think that's really a sign of health.

Well, let me move to the specific cases, and let me start with what I think - with some bias, no doubt - is the most consequential decision of the term and that is the Loper Bright case in which the court overruled the Chevron decision. Now a lot of people just seeing the coverage of the court might say, wait a second, isn't the Trump immunity case, isn't that the biggest case of the term? And I would beg to differ in the following sense. Obviously, the Trump immunity case is a very big deal and I'll talk about it in a minute, but we've gone roughly 235 years in the Republic until we first indicted a former president, and I'm hopeful we're going to go another 235 before we try it again. So in that sense, having this jurisprudence about the metes and bounds of former presidential immunity from criminal prosecution is probably something that will be thought about a lot, discussed a lot, but not really brought into action in very many cases.

 

 On the other hand, the question about how you go about interpreting a statute in the context of a statute where an administrative agency has some role in interpreting the statute is something that happens virtually every day in the lower federal courts and is really the bread and butter of what federal courts do.

So when the court introduces a change in the way to think about interpreting statutory construction in that context, I think that is, and I'll here borrow the solicitor general's words in her brief, trying to get the court to stick with Chevron, which is "Overruling Chevron would be convulsive." I think that it really is, maybe whether it's convulsive or not, time will tell, but it is kind of a Copernican world shift in terms of how to go about interpreting statutes instead of asking "What is the statute?" Rather, instead of asking in the Chevron world, "Is the statute ambiguous?" And if you start with that question, the answer's probably yes, most statutes have some ambiguity, or at least if you get it down to the universe of cases where two litigants have decided to actually go to court over it. So if you ask, "Is it ambiguous?",  you're going to almost guarantee that you'll be off into the Chevron deference world.

 

If you ask instead simply, "What does the statute mean? What is the best reading of this statute?" then I think you are much more likely to get to the right answer and get to something where importantly the thumb is not on the scale on the part of the government. Let me give you a little background on the case. This is a case involving - the facts of the case which tend to get overshadowed because of the way the court treated this as really just a question, a referendum on Chevron deference. But I think the facts are important. I think the facts were useful and important in getting the court to take the case in the first instance. So this case involves fishermen who are regulated under the Magnuson-Stevens Act, and in that act, Congress did one thing that I don't like very much, and then it left one question for the agency to do something worse.

 

So what Congress itself did was say that on these relatively small vessels where there's only space for seven or eight individuals, the fishermen have to give up one of those precious spaces on their ship to a federal monitor whose job is not to help them reel in the catch, but it's to constantly monitor them for compliance with all manner of federal regulations that go into regulating federal fisheries. But that's bad enough. And like it or not, Congress did impose that burden on them, but what the agency then did in addition to that is when the agency ran out of appropriated funds to pay for those monitors, the agency on its own authority said, "Alright, we're still going to have more of these monitors. We'll get private monitors as part of this program and we're going to make the fishermen pay for it." So it's bad enough, you got to give up precious space in your boat, but now you have to pay for it.

 

As we said in our cert petition in this case with a CF citation to the Third Amendment, the redcoats actually quartered soldiers in the colonialist homes and as outrageous as that was, they didn't make the colonists directly pay for the redcoats' salaries. Now I really liked that line because it kind of captured the heart of the case, but with my Second Amendment jurisprudence reaching a certain maturity, I really liked reviving the Third Amendment. I think it's going to be the wave of the future. Now, one of the things that I think I've learned practicing law over the years is generally you want to give your client as many options for winning the case as possible.

 

So when we formulated the petition in this case, we gave the court two questions presented. One was specific to the particular statute, and the other one was, "If you don't agree with us on the reading of the statute, maybe you should overrule Chevron" Much to our surprise, but to our delight, the court granted cert limited to the second question presented. And so from the very beginning, the court really signaled that they were very interested in deciding the $64,000 question - without inflation - of whether or not Chevron should continue to be the governing rubric for statutory interpretation. The court then sort of reinforced that they were really thinking about this in fundamental terms by granting a companion case out of the First Circuit, the Relentless case. In our case out of the DC Circuit, Justice Jackson was recused because she was on the original panel. And I think with the evidence of the decision, I think I now know that the court really didn't want to decide such a momentous issue with a court that was down a member, especially because the decision they were thinking about - Chevron - was decided by a six justice court. So they combined the cases so they could have all nine justices participate.

 

I think it's fair to say that by the end of the oral argument, the real question that had emerged is, will Chevron be overruled or will it be Kaiserized? And by "Kaiserized" I mean what happened to Seminole Rock or our deference in the Kaiser case where the court had an opportunity to overrule a deference doctrine and instead just substantially trimmed it back. But I think from the tenor of the argument, those were the only two options on the table. A full-throated reaffirmation of Chevron seemed very unlikely. So when the opinion ultimately came down, it included my three current favorite words in the English language, "Chevron is overruled." There was nothing subtle about this. There was no undue hand-wringing, there were no obvious trap doors, and plenty of questions to be decided about what's going to happen in a post-Chevron world. But the court was very emphatic in a 6-3 opinion by the Chief Justice, that Chevron is no longer the governing framework.

 

Justice Kagan dissented, and in her dissent, she really emphasized the argument that even Justice Scalia in the early days embraced as the principal justification for Chevron, which is in certain hard cases, if it comes down to the sort of modestly politically accountable executive branch official versus the unelected federal judiciary, isn't it better to have the modestly accountable federal executive branch official have the call in resolving the ambiguity? And I think the problem with that argument, and I think why by the end Justice Scalia had really abandoned that way of thinking of it, is it tends to ignore the third branch, which is Congress, and all of the problematic incentives it creates for the courts to defer to the administrative interpretation of ambiguous statutes. It sucks all the incentives out of Congress's ability to address these kinds of issues because, at any given point in time, roughly half of Congress has friends in the executive branch who can do what they want through administrative fiat, and so there's no incentive to have a permanent solution, no incentive to reach a compromise to the point where I think it's probably fair to say that many people in Congress have kind of lost the muscles to legislate and compromise on difficult issues, even though that's undeniably the most politically accountable branch. So I think it's fair to say the decision has already had a momentous impact within days of the decision. A court struck down the FTC effort to ban covenants not to compete, a practice that had coexisted with the FTC Act for like a hundred years, but the current FTC discovered that actually it violated the statute all along. That was struck down just days after the decision, and just from my own practice, I'm aware of numerous cases where courts have asked for some supplemental briefing and the like in light of the decision, so it's hugely important, but it's far from the only important administrative law case from the court this term.

 

The court also had a major and important case called SEC v. Jarkesy, where they addressed the extent to which agencies can essentially do adjudication in their own courts and bypass the Article Three courts. This case arose in the specific context of civil penalties for securities fraud and the SEC. The SEC for a number of years had brought these cases in federal court where they actually had to sort of prove their case and a civil penalties case would logically involve a trial by jury, but recent legislation allowed them to do this in-house before their own ALJs. That was challenged in this case before the Fifth Circuit which found no less than three constitutional defects with the way the SEC was proceeding. 

 

It saw that there was a nondelegation problem. It saw that the ALJs were not constitutionally situated because they could not be removed by the president - the so-called double for-cause removal - and they also held that these proceedings before the ALJs violated the Seventh Amendment rights of the regulated parties to have a trial by jury. So the Supreme Court in this case only addressed one of those three potential defects. It left the other two sort of unresolved, but in a 6-3 decision by, you guessed it, the Chief Justice, the court said that this practice of imposing civil penalties in the SEC's own proceedings violates the Seventh Amendment rights. And the reasoning is pretty straightforward. The court had long said that civil penalties are the kind of imposition that would've been something that was done on the legal side of the house back when we had equity and law as the divided bench. And so presumptively, there's a Seventh Amendment right to a determination of the amount of civil penalties. And then the second question, and perhaps the closer question is, is this some kind of public right where there is an exception to the Seventh Amendment right?

 

And in this decision, the court very much narrowed the concept of that public right exception to the point where this decision I think will have important consequences not just for the SEC, but for any agency that tries to impose civil penalties through its own ALJs or its own system of justice. And that's particularly consequential for some agencies that, unlike the SEC, don't really have the authority to go to court and get the civil penalties. So for some of these agencies, this will really mean that unless they get renewed congressional power, they won't be able to impose civil penalties at all. Justice Sotomayor dissented along with Justice Kagan and Justice Jackson. So there are two other administrative law cases I want to mention before moving on to some other parts of the docket. One of these is perhaps the one case where the government had a good day, an administrative law case in the Supreme Court this term that is the CFPB case against Community Financial Services Association.

 

This was a case where the court addressed whether the way that the CFPB appropriations were constructed by Congress violated the separation of powers violate the appropriations clause. In a nutshell, the CFPB gets its appropriations from the Federal Reserve Board without the need - like most federal agencies to go back to Congress every couple of years and get additional appropriations to do their authorized functions - and so this was a concerted effort, an avowed effort to make the CFPB more insulated from the rough-and-tumble of congressional appropriations, especially if the Republicans got in control of the appropriations process. And so this was a challenge and the Supreme Court rejected the challenge by a 7-2 vote in an opinion by Justice Thomas. And if you had that on your bingo card going in, I mean congrats to you. I mean it was a difficult case, a close case, but the idea that it would not only be 7-2, but that Justice Thomas would write the majority opinion, I think surprised a lot of people.

Only Justices Alito and Gorsuch dissented in this case. And I will say having read the briefs in this case, the government did a pretty good job of finding historical traditions for all of the various aspects of the way the appropriations power worked here. And the case really came down to, alright, if you have three different ways of sort of limiting the appropriations power of Congress or hamstringing it that have all been extant for a long time, is there a particular problem if you combine all three of them in one agency to maximize its insulation? And as I say, 7-2, the court said that that was constitutionally permissible. It was a nice win for the government, but really no other agency has this kind of appropriations facility, which is in a sense part of what the challengers were saying - this is so anomalous and so unprecedented - so it's not a case that's going to have a lot of consequences across the administrative state. 

 

The other case that's sort of the sleeper of this series of cases that will have substantial implications across the administrative state is a case called Corner Post against the Board of Governors of the Federal Reserve. The issue in this case is what is the statute of limitations to bring an APA challenge and the APA in the relevant section has a relatively generous six-year statute of limitations. The question in the case though is if you have some rule that was promulgated let's say in the year 2000 and your business doesn't have its ox gored by the rule until 2022, when you bring your action in 2023, are you timely because you only waited a year or are you untimely because the rule has been on the books for longer than six years? The Supreme Court, in a 6-3 decision, said that the statute of limitations starts to run when the particular party is injured by the rule. This is making this much easier for parties to challenge administrative rules including rules that have been on the books for quite some time. This time, the 6-3 opinion was written by Justice Barrett. Justice Jackson wrote the dissent for Justice Kagan and Justice Sotomayor. I think this decision in addition to applying across the board to any APA challenge, so to basically any agency, this is going to have a multiplier effect with the Loper decision overruling Chevron for the following reason. It has been widely understood that Chevron for the last couple of years has been on life support, at least in the Supreme Court of the United States. One of the arguments we made for the court formally overruling the decision was that the Supreme Court itself hadn't relied on it since 2016. So the Solicitor General's office has some very clever lawyers. There are other clever lawyers in the executive branch and even in cases in the Supreme Court and sometimes in promulgating brand new rules, where Chevron was obviously relevant, it would either not be cited at all or relegated to the last two pages of the brief.

 

And so I would say for the last four or five years, the executive branch has been relatively careful about citing Chevron and that makes it a little bit easier for them to say in one of these post-Chevron cases, "Oh, don't worry, we don't have a problem, we have never relied on Chevron in this context at all." But if you go back even a few years to the heyday of Chevron - and I say this as somebody who worked in the Bush administration where we were quite unapologetic about invoking Chevron in defense of our position - so if you rewind the tape just a few more years, you will find plenty of rules that are squarely premised on Chevron deference. And I think the ability now because of Corner Post to go back and challenge some of those rules that have been on the books and were promulgated in the heyday of Chevron, I think is going to make it much easier to challenge some of those rules with the tailwind of the Loper Bright decision.

Well, let me move now to what I think I can fairly describe as the court's Trump docket. The court had two important cases involving the former president. One is a case called Trump v. Anderson, and this is the Colorado case where the Colorado Supreme Court decided that President Trump should not be on the ballot because of Section III of the 14th Amendment and their judgment that he had participated in an insurrection. I think it is fair to say this is a case the Supreme Court had to take. I think the prospect of 50 states making 50 different judgments about whether one of the major party candidates is going to get on the ballot is just not something that we could easily handle and certainly not something where the Colorado Supreme Court should have the final word. So it surprised nobody when the court took the case, and I think in fairness it would've been a great development if the court had been able to decide this case in a single, unanimous nine-justice per curiam opinion the way it did - for those of you who remember back then - in the very first precursor to Bush v Gore, the Palm Beach County case, there was 9-0 per curiam opinion. And this seems sufficiently straightforward that what the Colorado Supreme Court had done just didn't make any sense under our federal system. We would've hoped that it was going to be 9-0 with everybody agreeing. That was not to be, all nine justices agreed that the Colorado Supreme Court was incorrect, but they broke down exactly how to express that and how far to go. And I think it is fair to say that the line of disagreement is that everybody agreed that Section III of the 14th Amendment for a candidate to be disqualified under that provision, you needed some federal action. It wasn't up to each state to make its own judgment. I think where the court broke down is what kind of federal action is necessary.

 

The majority opinion says that it really takes federal legislation and I think the other justices would've left open the possibility of some other federal action. I think what was probably going on in this case is the majority wanted to close the door to the possibility of this issue coming up, let's say in December of 2024, and tried to resolve this case once and for all. And that's where the court divided. The second Trump case is I think the more interesting one and as I say is probably the case that's grabbed the most headlines of this term, this is Trump v,. United States. And this is the question of former presidential immunity. 

 

I think, unlike the Colorado case, it was not foreordained that the court would take this case. I don't think it was - the possibility of leaving this issue unresolved and for the lower courts - I think was a possibility.

But the court took the case and then it handed down its opinion on what I think is one of the hardest questions in constitutional law. And the reason I think this question is so hard, especially for a textualist court, is the text really doesn't say anything about presidential immunity. And I think there's a very good reason for that, which is the text of the constitution gives the president the federal criminal prosecutorial function. And so the framers thought, "Well unless the president loses his or her mind and decides to indict themselves, we don't have to provide a textual immunity here." And that's in contradistinction to the Speech or Debate Clause where the framers thought, "Well, there's an obvious temptation for the executive branch to go after members of Congress they don't like. So we have to textually fix a degree of immunity from that." So for a textualist court to tackle an issue where there's no text is no small feat, but the court pressed ahead and in a 6-3 decision written by, you guessed it, the chief justice, the court created sort of a tripartite framework for thinking about these issues that I think is loosely based on Justice Jackson's famous tripartite framework in the steel seizure cases for dealing with separation of powers issues.

 

And what he says is there are some core executive functions where a former president is absolutely immune. And so these are things like receiving ambassadors or deciding whether or not to veto legislation or grant a pardon. Those are such core executive functions that Congress can't really pass a statute that purports to impose criminal consequences on that act. As Justice Barrett wrote in her separate opinion, it's probably not even right to think of that as an immunity. It's just a lack of power in Congress to interfere with the executive branch. But that's for core executive branch functions. There is then a presumptive immunity for official acts, and then the court as the third part of the tripartite framework says there's zero immunity for unofficial acts. So that would seem to make it pretty important to tell the difference between an official act and an unofficial act.

 

And here's where the court leaves things a little bit murky and sends it back to the lower courts to try to develop that. Now let me say a few words in praise of murkiness. There are some issues in constitutional law where not having an absolutely definitive answer is just okay because it leaves some room for the political system to deal with it and leaves some of these questions for another day. And my own view is it's probably okay if the next president doesn't know exactly the line that he or she can go up to before they could be criminally indicted. I think a little bit of haziness on that line, probably not all bad. There's one aspect that really sits outside this tripartite framework that I think is one of the more important aspects of this decision, which is the court went beyond just sort of laying out these three categories of immunity, and it specifically created what I think I would describe as more of a use immunity for evidence of official acts.

 

So even though the court says that unofficial acts, there's no immunity for them, the court goes out of its way to say that the prosecutor can't use evidence of official acts to prove an unofficial act. And I think that actually provides the president with a significant sort of additional layer of protection. And precisely because that concept may apply even outside of presidential immunity or former presidential immunity, I think that may end up being one of the most important aspects of this case. There were three dissenters in the case, Justice Sotomayor wrote the principal dissent. So let me move on briefly to what I would call the Trump-adjacent docket. Here the case I have in mind is a case called Fisher v. United States, which is a case that has been used by the government to prosecute a number of the individuals involved in January 6th. Another way to think about this case, if you want to not think about it as sort of Trump adjacent, because these are also some of the charges that the special prosecutor used against the former president, but you can also think of this as the son of Yates.

 

Now Yates is one of my favorite Supreme Court cases. It comes from a few years back and involves the interpretation of the Sarbanes-Oxley case. You may have forgotten the name Yates, but you won't forget the facts of this case. They're really wonderful. Plus I have a fondness for cases that relate to fishing and fishermen, but this is the case where a fisherman caught some fish that were not the regulation size. He was pulled over by a game warden who sort of looked in the locker and saw these undersized fish. The game warden went even to the trouble of marking them with an X or something that they were undersized. And then very sternly told the fishermen that he needed to take his boat and bring it over to the dock and the authorities would follow him in there and meet him there and do the rest of the paperwork.

 

Well, as the fisherman was pulling up to the dock, a couple of those fish just found their way overboard. It's the craziest thing. And so they weren't there when the game warden confronted him on the dock. And so some assistant US attorney thought, "Oh, I have the perfect solution for this. I'm going to prosecute this fisherman under the Sarbanes-Oxley provisions that were designed to remedy the Enron document burning party." And that statute basically makes it unlawful under federal law to destroy a record, document, or other tangible object. And the theory in Yates, which isn't crazy, is that a fish, it's a tangible object, right? I mean, so this fits within the statute, but the court 5-4 said, "No, that's crazy. I see where you get the tangible fish thing. The fish isn't really an intangible object I suppose, but it's just not covered by the statute."

 

So this case actually involves the immediate adjacent provision which compliments the prohibition on destroying a record, document, or other tangible object and also prohibits otherwise obstructing, influencing, or impeding any official proceeding. And so this provision was used against the people involved in January 6th on the idea that they were impeding the official proceedings involved in counting the electoral votes. And the court by a 6-3 majority says "No. This is a complimentary provision that is supposed to complement the document destruction prohibition. This is designed to capture moving documents abroad. Perhaps it's designed and extends so far as witness tampering or witness intimidation, but it doesn't cover the events of January 6th." As I say, this was a 6-3 decision by, you guessed it, the Chief Justice, but it's not the 6-3 you might've guessed, because Justice Jackson and Justice Barrett essentially traded places for purposes of this 6-3 decision, with Justice Jackson joining the majority, Justice Barrett joining the dissent.

 

There was one other case in the criminal docket that I'll mention, Snyder v. United States, which involves the aptly enumerated 18 USC 666. This is a statute that has long been, in my view, abused by federal prosecutors to go after all manner of state and local officials for things that are - engaged in bribery or near bribery or public corruption - and the reason I think it's pretty inappropriate is that all of these state and local officials are governed by a whole myriad of state and local requirements, and in some of these cases, the federal government is prosecuting local officials for doing something that isn't unlawful under local law. And that's pretty bad. Maybe the only thing worse is that the federal government was going after these people for things that are in fact prohibited by the state and local law, and they were either pretermitting a local prosecution or interfering with the prosecutorial judgment of the state and local prosecutors.

 

This was all in front of the court in a case called Snyder v. United States. The specific question is whether the statute requires the government to prove quid-pro-quo corruption, an actual quid-pro-quo, i.e. bribery or whether it also extends as the government submitted to gratuities. And the difference is pretty fundamental because first of all, virtually every state and local government prohibits bribery. So if the federal government only prosecutes bribery, it's not really interfering with state and local prosecutorial discretion in quite the same way. But the other thing is, if you think about gratuities, particularly in the context of state and local officials, I mean first of all that's one way to describe a campaign contribution. Another problem is almost anything of value is kind of the definition under the statute. And so that could cover truly trivial things, like providing somebody a $10 Dunkin certificate because they did a particularly good job with the trash removal.

 

And the court 6-3 in this case, in an opinion by Justice Kavanaugh said, no, the statute's limited to bribes, and it really focused quite a bit on federalism concerns and the like. To me it's what's striking about this case is when I went to law school a few years ago, it seemed like for the most part it was the liberal justices that would vote for the criminal defendant and it was the conservative Republican law and order - good old Chief Justice Rehnquist really didn't like anybody carrying a placard or violating the law - so we've gotten to the point where things are completely topsy-turvy, and in a lot of these criminal cases - particularly cases where the issue is what is the reach of a federal statute - in most of those cases, if you're trying to represent the criminal defendant, you're pitching your case to the right side of the court and not the left side. Let me talk about - people love the Bill of Rights - personally, I can talk about structural constitution and administrative law all day.

 

To paraphrase Justice Scalia, "Structure is everything", but I know people like to talk about the Bill of Rights too. So let me move on. I've already talked about the Third briefly, so I'll focus on the First and Second Amendments. The court in this term had a number - by my count five - consequential cases about the First Amendment as it applies to social media. This is somewhat interesting because last term I think a lot of people thought, okay, last term was going to be the term where we had the social media cases because everybody kind of dislikes social media for a different reason. So these cases are percolating throughout the system. And it seemed like maybe last term was the term where the court was going to really get its hands around this because it had a very important issue about the scope of Section 230 immunity, which is really what many of these social media companies have relied on in fending off lots of civil litigation.

 

But that case kind of fizzled in the end and the court didn't definitively reach it. So it turns out this is the term where social media really comes to the Supreme Court. And as I say in five different cases, there is a through line in my view, through all of these cases and the through line is state action. How do we think about the social media companies, the phenomenon of social media companies clearly have an impact on the overall public debate, but they pretty much look like private companies, not state actors, and normally we think of the First Amendment as restricting only state actors. So how do we go through all of these various issues? The first set of cases that the court decides are really cases that the court almost decided at the end of the Trump administration and end up passing on at that point, but now they're back with state and local governments.

 

And the question is, what do you do when a public official is conducting essentially government business to some extent on their private social media site when they're making comments or telling people about upcoming public meetings and then they get some positive feedback and then they get some negative feedback and then they take down the negative feedback on their personal site or block certain users from getting access to their personal site. And this is something that had divided the lower courts with one of the courts saying "It's private, this is simple, none of this is state action." And another saying, "Wait, you're doing government business on a private website, so it's state action." The court in a unanimous opinion written by Justice Barrett sort of split the difference and came up with a new test that will govern in this area that has a two-prong test before the First Amendment will kick in.

 

And the first question is whether the person has actual authority to address the matters. So if you're just like a government employee who can't actually change some policy and you're just spouting off on your social media site, you're fine. But if you're the mayor, if you're the president, if you are the chair of the city council, then I think that first factor will be satisfied. The second question is whether you purported to exercise that official authority. And certainly with some of these officials, even though it's a private website, they really are acting like they are doing government business on that private website and then that would be covered by the First Amendment. The second issue is a related one. Again, the through line here is state action. This is the Murthy case involving government-ish officials who approach executives at social media companies and try to encourage them to take certain material down or to emphasize certain material, but usually, it's more of a negative thing.

 

And this came to a head during the pandemic when people were saying crazy things like masks don't work or vaccines may have side effects. And the government really didn't want those nefarious messages to be spread. And so they made some approaches and said, could we tamp down on that? And the question is, does that coercion ultimately, is that enough to create state action and what is the difference between coercion and jawboning and encouragement? The argument was interesting because I think both Justice Kavanaugh and Justice Kagan had had some experience in different White Houses with maybe calling up a reporter and saying, "It would be really good if you didn't run this story."

 

So I think they had some real sympathy for the government in this case that maybe was born of personal experience and you might not have thought until you sort of ran it through the experiences that they'd had. But in any event, these are really interesting questions and we don't know the answer because the court decided that the plaintiffs did not have standing. And so that's an issue that if it's going to be resolved, will be resolved in another day. The last two cases the court had, and these are cases I was involved in representing the social media companies, so feel free to take what I'm about to say with a grain of salt, are the NetChoice cases involving challenges - First Amendment challenges - to statutes passed by Florida and Texas. The statutes differ a little bit in their particulars, but I think it is fair to say that both statutes were passed in the wake of the last presidential election.

 

Both were passed with a sometimes expressed view that the social media companies had a leftist bias that was unfair to conservative voices. And so there are various provisions essentially limiting the ability of the social media companies to suppress certain speakers to deprioritize their posts or to add an addendum to things that they said, where they would say, "Well, this person said this and we're not going to take the post down, but we are going to say not everybody thinks that and here's something." And so those issues made their way through the 11th Circuit and the Fifth Circuit, the 11th Circuit found the statute largely unconstitutional. The Fifth Circuit upheld the statute, it went up to the Supreme Court, and the Supreme Court issued a decision that I think it is fair to say is a little murkier than Loper. One of the beautiful things about Loper is the clarity of "Chevron is overruled."

 

The NetChoice case ended up with all nine justices thinking the cases have to go back to the lower courts because the lower courts didn't do the facial challenge analysis quite right in the First Amendment space which has its own importance. And to be sure, all nine justices said that, but five justices in an opinion by Justice Kagan, went on to address the First Amendment issues and essentially say that the Fifth Circuit had gotten its First Amendment analysis pretty fundamentally wrong. I view this as a pretty solid vindication by five justices of the First Amendment position of the social media companies because the court goes through the court's prior precedents involving things like newspaper editorials and a right-to-reply statute, parade organizers who don't want to have a particular group in their parade, and it really likens what the social media companies do in exercising editorial discretion to those other situations where the court had squarely found that the First Amendment provided substantial protection. So although the decision is perhaps a little murkier and in this context I'm less happy about murkiness, I do think ultimately it was a pretty strong vindication of the First Amendment rights of the social media companies by five justices of the Supreme Court.

 

Let me talk now about the Second Amendment and I'll title this little section "Second Amendment and Friends", because one case is a pure Second Amendment case and the other one is adjacent. The pure Second Amendment case is a case called the United States v. Rahimi. The question in this case is whether 18 USC 922 G8 which prohibits someone subject to a TRO for domestic violence from possessing a gun is consistent with the Second Amendment. The Fifth Circuit said that this statute is inconsistent with the Second Amendment, violates the Second Amendment, and applies the Bruin history text and tradition test. The Supreme Court brought it up and it said actually this is consistent with the Second Amendment in an 8-1 decision written by the Chief Justice with Justice Thomas in dissent. I think the facts of this case go a long way in explaining why the court decided the case the way it did. I mean in the universe of 9 22 G8 cases, which is not a sympathetic universe to start with, this is an outlier. This is a person who got a TRO for domestic violence directly involving a firearm, which isn't a requirement for the statute. You can get it just a TRO for domestic violence and then it triggers the statute. But his initial domestic violence involved a firearm. Then the circumstances in which he was caught having a firearm after that also involved the discharge of a firearm and that's why he was prosecuted.

 

And in the brief period while he was sort of on parole or otherwise not detained before that prosecution was brought, he engaged in no less than five separate incidents that involved not just the use of a firearm but the discharge of a firearm. So this is a tough case to love. And in some ways it is remarkable and I suppose a testament to the Fifth Circuit's willingness to apply the law even to bad facts that this case was decided in favor of the defendant in the first instance. But once it got up to the court, the court was pretty - nearly unanimous in saying you could prohibit this consistent with the Second Amendment. I think it is striking though that the Chief Justice wrote this opinion probably with an eye to leaving a lot of the questions about how to apply Bruin unanswered and not deciding other cases involving different statutes and different facts.

 

And so although this is a case where the party seeking to vindicate the Second Amendment plainly lost, I think it's a case where the court's opinion doesn't do that much to the existing framework and doesn't add that much to the existing framework. The other thing I'd say about this case, which I think is maybe a way to understand how a case with these facts gets up to the Supreme Court is strangely, this case sort of shows the maturity of Second Amendment jurisprudence and litigation. Because in the first couple of Second Amendment cases that got to the Supreme Court, many of which I was directly involved in, they came as a result of plaintiff's challenges to statutes where it was a declaratory judgment action trying to say that a statute is unconstitutional. Since they were plaintiffs in Section 1983 actions, the groups that were helping behind the scenes in these cases could really vet their plaintiffs. They could make sure they had somebody that presented a very nice sort of face for the case. I have a case I'm involved in right now where our client is a former Olympic shooter. I mean that's pretty good, huh?

 

And so when you're sort of on the offense and trying to develop the first steps of the Second Amendment jurisprudence that it protects an individual that applies against the states that it's robust in its application. Those cases came up in this kind of plaintiff framework. But now that the court has established that it is an individual right, it does apply to the state and local governments and it is not a weak sister, weak sibling, right, but it actually is a robust right protected by this text, history, and tradition, you can expect that lots of criminal defendants facing gun charges are going to raise Second Amendment issues. And this next wave of cases is likely to be litigated in the context of defendant challenges rather than plaintiff challenges.

 

The other case I want to talk about very briefly, which I think is a Second Amendment adjacent case, is a case called Garland v. Cargill. This was the case about bump stocks, and I think the really important thing to understand about this case is it's not a Second Amendment case. It involves bump stocks, which are kind of like machine guns, so it seems like it should involve the Second Amendment, but it doesn't. It's actually an administrative law case again. And what happened here is if you remember back to the terrible shooting in Las Vegas where the shooting was perpetrated by somebody using a bump stock, there was a predictable outcry after that to say, "We need to do something about this." Now, the ATF across Democratic and Republican administrations had long been aware of the phenomenon of a bump stock, which basically takes a semi-automatic weapon and allows it to function more like a fully automatic weapon.

 

So ATF had long been aware of this and long of the view that it did not have the statutory authority to prohibit them. But in the wake of this uproar over the shooting and all of this potential energy for Congress to do something about bump stocks, the Trump administration said, “Well, actually I think we do have the authority under this statute to do this by regulation. So never mind the legislative process, you can just put that to the side. We'll do this by regulation.” And this gets brought up through the lower courts. The Fifth Circuit said, no, this is in excess of statutory authority. It gets up to the Supreme Court and by a 6-3 vote, the court says, "Yes, this is in excess of statutory interpretation. The regulation is invalid." I think it's kind of a miracle this wasn't 9-0. I mean this was a pretty straightforward case where the statute didn't obviously provide this authority and there was a long history across administrations of recognizing they didn't have that authority.

 

So it is a little surprising that it was 6-3 but it is Second Amendment-adjacent. So I think that explains the three. But what I want to amplify before I move on is what this case to me shows is both the importance of Loper Bright, but also that it's not a left-right issue. Justice Gorsuch made a great point in his concurring opinion in Loper Bright that some of the victims of Chevron deference over the years have been immigrants, veterans, and social security applicants - people who are trying to get benefits out of the federal government. Some grumpy person in the federal government says "I don't want to give you the benefits." and they rely on Chevron deference to deny the benefits. But this case shows another situation where what it takes to get Congress to do anything these days is some event that creates some public outcry and some momentum to do something.

 

And if in those circumstances the administration of whichever party can say, "Oh, wait a second, we don't really want Congress to do something, because once Congress gets going, who knows where they're going to stop. So we'll just try to take all of the momentum out of the legislative process by saying, we can actually do this by executive branch fiat." And in this case, it was the Trump administration that yielded to that temptation. So this is not really a left-right issue, but in all events, I think it was a decision where the court correctly reaffirmed that without statutory authority, this was just something that had to be resolved by Congress. So let me briefly talk about a couple of abortion cases on the court's docket. I'll cover these briefly, but there are two post-Dobbs cases, both of which kind of fizzled out a little bit in the end in terms of not getting to the merits.

 

I think it is fair to say that when the court decided the Dobbs case, it had two hopes and aspirations. One was that maybe this meant that they wouldn't have to take a lot of abortion cases going forward, and two, that maybe they would send this issue back to the states and local governments and they would decide this issue for themselves. And maybe Massachusetts ends up with a different law than let's say Idaho. I think these cases show that those hopes have been, at least to this point, frustrated. And I think that's because there is already a surprising amount of federal interest in the abortion issue. This has been federalized in various ways over the years and sort of neither side wants to sort of just "leave it to the states" in some sense. So one of these cases, FDA v. Alliance for Hippocratic Medicine, involves a challenge to the FDA action that basically made mifepristone, if I can try to pronounce that right, available essentially without a prescription, you could get it essentially by mail order.

 

And this was a way to really - if you're in a state that doesn't allow abortion if you can get it through the mail, it really does sort of have the federal government's determination override the state and local political judgment - so this was challenged, but ultimately the court said the people who challenged it didn't have standing to bring the challenge. There's some suggestion that maybe states would have standing, so this may come back to the court in another year or two. The other case that kind of fizzled even more because there wasn't even a standing holding, is a case called Moyle v. United States. This is a situation where in the wake of Dobbs, the Biden administration took the position that an existing federal statute, EMTALA, basically meant that emergency rooms that received federal funding would have to provide abortion in what seemed like a relatively large set of circumstances.

 

Idaho passed a statute that seemed to suggest that abortion was illegal except when it went to the life of the mother. So abortion was Illegal in almost all circumstances. So it seemed like there was a pretty direct conflict between the federal EMTALA interpretation and the state law. But after the court granted an emergency stay to get involved in this case in a preliminary posture, and by the time of oral argument, it's like both sides had moved to the middle a little bit. Idaho had said, "Well, maybe there are other circumstances where abortion would still be lawful." And there was an intervening Idaho Supreme Court case and an intervening state legislative action, and then the executive branch position got a little mellow as well, and a few fewer things would be required by EMTALA. And so by the time the court sort of got the case at the very end of the term, I think this was the last case argued in the whole term, they kind of wondered why they granted this case, and so they dismissed it as improvidently granted. 

 

But I think both of these issues are likely to be in front of the court again relatively soon. Let me finish with just a few quick words about the business and civil litigation docket. As I've done Supreme Court roundups in the past, I've often spent a fair amount of time on the business docket. I would say that in general, the business docket this year was kind of missing in action and I think part of the reason for that is most of the cases that businesses were most interested in are the administrative law cases that I've already talked about, and those are mostly the cases that business was interested in and won. A lot of the other business cases didn't really go that well for the business defendant and it's a small subset of cases or a small sample size of cases, so it's hard to draw any great inference from that.

 

But I do think between some of the justices not being big fans of implied preemption, and some of the justices being pretty strong pro-federalism, this court, the current court is probably not as good a court for business as it was just maybe five or ten years ago just to try to put some meat on these bones. If you try to figure out what are the cases that are business cases or at least related, there are probably cases where the Chamber of Commerce filed an amicus brief. The Chamber of Commerce filed amicus briefs in 23 cases, so a pretty good number of cases, and they were 14-9 in those 23 cases, and most of the 14 were administrative law cases. So when it came to the straight business cases, the Chamber of Commerce probably batted no more than 500, and there were past terms when the Chamber was batting 800 close to 900.

 

So I think it does bear that out. Probably the most important case for at least some businesses and for civil litigation it was actually a bankruptcy case. If you think about that, that probably tells you a little bit about where we are in our civil litigation system. If you think about large mass torts, in other cases where a company really gets itself in a situation where it's facing a tidal wave of litigation, the one thing that the company really wants, even if it's willing to pay quite a bit of money to settle the case, is legal peace. It's one thing to spend a billion dollars or something if it's going to mean this litigation is done. It is another thing to spend a billion dollars and say, "Okay, this phase of the litigation is done." And it really doesn't make much sense to try to get a resolution for substantial sums of money if it's not a definitive resolution that gets you legal peace.

 

Our current system of civil litigation isn't particularly well designed to have those definitive resolutions and some of the plaintiff's lawyers are pretty good at getting around the few mechanisms that do provide those definitive solutions. So you have a number of situations where the only way to try to get sort of a definitive resolution in legal peace is for a company or part of a company or an affiliate to go into bankruptcy. And what often happens in these situations, is it's like an affiliate that goes into bankruptcy. The parent company says, "Look, we're willing to pitch in a lot of money to settle this thing, but if we do that, we want what's called a third-party release, which means that you can't go after us anymore on this." This is a practice that has been around for a couple of decades. It was initially in the asbestos context, but it's now been used in a number of different cases.

 

J&J tried to use it in the talc cases. My own client 3M tried to do it to resolve some litigation involving some earplugs. This is a recurring issue. The Supreme Court in this Harrington v. Purdue case in the context of the opioids litigation by a 5-4 vote rejected this so-called third-party release practice and kind of took off the table really one of the few mechanisms for dealing with these issues and bringing legal peace. It's an interesting 5-4 division of the court. The court's opinion rejecting the practice was written by Justice Gorsuch, joined by Justices Thomas, Alito, Barrett, and Jackson. The dissenting opinion was written by Justice Kavanaugh, joined by the Chief Justice, Justice Sotomayor, and Justice Kagan. So you know an issue's tough when even the Georgetown Prep guys can't agree, but even more broadly, this is an interesting division of the court, and what I think it shows is that we most often think about the court as being a left-right court.

 

We talk about conservative justices and liberal justices, but there are other ways to think about the court. And one of the, I think important other ways to think about the court is the extent to which people - justices are more theorists or more pragmatists. And I think that's sort of the division you're seeing here. I think Justice Kavanaugh, the Chief Justice, Justice Sotomayor, and Justice Kagan, and I think Justice Sotomayor is maybe not classically with the other three, but those three justices in particular I think are often trying to get results that make pragmatic sense, even if there's a little bit of imperfection in the legislative text. I think some of the justices in the majority are more of the school that will drive the team bus right off the cliff if that's what the statute or the Constitution requires us to do. And there are pros and cons to both of those interpretive methodologies.

 

My point is simply that there is, I think it's worth understanding that that's another way to think about the court, and in certain of these cases, you're much better off thinking about the justices in those terms than you are in sort of simple left-right terms. Well, I promise to leave some time for questions. I will. There are a couple of other cases I'd be happy to talk about the Grant’s Pass case, for example, where the court shockingly said that the Eighth Amendment does not prevent states from policing people overnight camping and things like that. But I'm happy to leave it to a few questions before we wrap up.

 

First Questioner: Thank you very much. One of the things, and maybe I'm not understanding the First Amendment that well but what confuses me on the Murray case and the standing is that the court seemed to be trying to very narrow who it was who could bring cases, and yet there's doctrine that basically says that if someone comes to court and can demonstrate a chilling effect, not necessarily on them but on others, which seems in a certain sense to broaden the standing for First Amendment cases that they can do that. So how do you reconcile those what would strike me as very conflicting strands of thinking?

 

Hon. Paul Clement: Yeah, so what I would say is that my own sense is that there are a number of justices who aren't huge fans of the other cases that you talked about. And in some ways what the court did here isn't that different from what they did in a case like Clapper a few terms ago where I also think that they went out of their way to say, "Look, just if somebody else is the one that suffers the injury and you're interacting with them, if your client is the one suffering the injury, maybe that's not good enough or speculation that you're very likely to be affected by this, but it's not obvious that you're affected by this." I think there's that strain in the court's jurisprudence and I think it manifests itself in different ways. 

 

I think here there were some justices that have always been pretty demanding about standing, other justices joined the majority opinion who I think were probably motivated more by just not getting to the merits. So you do have these kinds of shifting alliances and then this suggestion in some of these cases that well maybe the solution is the states would bring the action, I mean I think that's another area where the court may eventually sort of reconsider some of the doctrines in this area because we do have a situation now where it's pretty predictable that if a new Republican administration changes some executive branch rules and does some things - promulgates a new rule - that it will be challenged by the state of California in the Northern District of California. And if a democratic administration does the same thing in reverse, it will be challenged by the state of Texas in the Northern District of Texas. And it's not obvious that that's the best way to adjudicate these issues. And especially when you kind of understand that part of the point of standing is to get people whose ox is really being gored very directly in a way that kind of sets up the controversy for the courts to adjudicate.

 

And then the other thing is there's a sense in which there's something to be said for sort of waiting and seeing a little bit about how the statute actually gets implemented in practice. And so this tendency to have the states rush in on both sides I think does end up putting a lot of cases before the courts in postures where the record can't really be developed that well. And then it really is I think a large explanation for the so-called "shadow docket" of the Supreme Court, or probably better to call it the emergency docket because every appellate court has one, you need some way of dealing with those, but that is a product of the fact that with states having standing, since we have red states and we have blue states in any executive branch action, there's going to be at least one state that doesn't like it. And if they have standing ipso facto to bring that case, then you're going to get cases that aren't developed in the traditional way.

 

Second Questioner: Hello? Can you hear me? Sorry. How big do you think is the Smith v. Arizona case that sort of solves the confusion caused by the Williams v. Illinois case in 2012 Confrontation clause stuff?

 

Hon. Paul Clement: Yeah, so I mean I think the court is continuing to sort of develop the confrontation clause. I think that's - when I think back to my beloved Justice Scalia's majority opinions for the court, his confrontation cases I think are some of the cases that best encapsulate sort of his jurisprudence and the notion that let's not think about what the confrontation clause was supposed to accomplish - reliability - let's think about what does the clause say and let's apply it and let's not worry about sort of purpose, let's get to the text. And he had, if memory serves in the first of those decisions, he had something like seven justices with him. And I don't know that there's ever been sort of seven justices again that are sort of as clearly on onboard that project as they were sort of from the get-go. And so I'm not sure any of these cases are going to definitively solve the problem, and I think this is going to be an area where the court continues to take a few of these cases and continues to wrestle with it.

 

Third Questioner: Good afternoon. This is an oral argument strategy question. Since the Chief seems to be maintaining the tradition of doing seriatim questioning as opposed to the traditional melee of seniority deference, how does that impact at all the strategy of trying to steer your questions back to a central thrust of an argument or focusing on a particular justice who may impede you from getting to a 9-0 decision?

 

Hon. Paul Clement: Yeah, no, it's a great question. And I think where we are now is kind of like a modified seriatim. You have the two minutes to start where you're essentially left to your own devices, and then there seems to be at least a soft tradition that Justice Thomas will ask the first question out of the box, which is sort of a carryover from the pandemic and then it's a free for all for a while, and then there's seriatim, I think of it as the bonus round. And so that does affect your thinking in certain ways.

 

There's definitely - once you're in the bonus round, if there's one justice who's been very hostile to your position, once you're past them, you can sort of relax and you can maybe answer in a way that if you were in the live-action middle part, if you'd said the same thing, you would've drawn an objection from that justice. So that's one way in which it sort of creates some sort of tactical opportunities. Probably the bigger thing I find is it just takes a little bit of pressure off of you when you're in the main part of the argument because if there's a point that you really wanted to make during the argument, but because the questioning went a certain way and you just didn't get a chance to get that point out and you sort of look down and think, "Oh, I really wanted to get that out", the bonus round gives you a mechanism to get it out. 

 

And it is probably the nature of the bonus round, it's not true in every case. In some of the cases, there really is virtually no bonus round, like the court thinks this is going to be 9-0 or it's just tired of listening to one advocate or the other so it just goes very quickly. But if it's a robust bonus round, as it is in many of the biggest cases, the very fact that there is the seriatim bonus round kind of creates a little bit of artificial pressure for justices who are with you to ask questions. And then that naturally creates some openings for you to get some material out that's helpful to your case that you haven't gotten out. I mean, just to put a fine point on that, back in the old system, I used to think it was almost a sign that my argument went really well that the justices who I thought were going to vote for me didn't ask me a single question, because it's like, "All right, Clement seems like he's got this. We don't have to throw him a lifeline." And so all of the questioning that came was hostile. On both sides, it could happen that way. And by having even the residual sort of seriatim round, it kind of forces artificially there to be some friendly questions, which do make, just to be candid, the advocate's job a little easier.

 

Fourth Questioner: Earlier you mentioned that you didn't think Rahimi did too much in either direction. In light of that, what do you make of the court's decision to GVR a whole host of Second Amendment cases that were pending?

 

Hon. Paul Clement: So I think if you look at the sort of last 10 years of Second Amendment jurisprudence in the court, the one thing you'd probably take away is that the court's not overly anxious to take lots and lots of Second Amendment cases. So I really just read their decision to GVR all of those cases as an indication that we're going to go slow on this. We've provided a little clarification about the Bruin test and we'll let people go back and do it. But my sense is it's not like they only GVR cases that came out one way or the other. I mean, they sort of GVRed the whole lot. And I think again, that's more inconsistent with the idea that there's a little bit of clarity, but it's not like Bruin's been cut in half by Rahimi or something like that. If that's what actually happened, then it wouldn't make any sense to GVRA case where even under Bruin, a court ruled against the Second Amendment, but yet that nonetheless happened. So I think it's just sort of go slow, let it percolate, and some of those cases will be back. Maybe one last question. Well, I guess Jean popped up there, so now I got to take two. So two last questions.

 

Fifth Questioner: So I was just wondering, now that the court has overruled Chevron, how are they going to deal with cases that already had a Chevron basis but now no longer have that to stand on?

 

Hon. Paul Clement: Sure. Great question. The court talked about this a little bit, and I think if there's a Supreme Court case that was definitively a step two case under Chevron and the agency hasn't changed the rule since and isn't going to change the rule, that's settled, I think that the court makes that much clear. If it's a lower court case in the same posture, step two case, the regulation is still on the books, then the issue is settled in that circuit, but it's not settled anywhere else, including the Supreme Court if they get there. And if since the first step two decision, the agency has changed the rule, then I think it's just like any other case and the fact that there was a prior case involving a similar but different rule that was decided under step two won't make any difference. And I think, I mean that's essentially what both we and Relentless, Raman on behalf of Relentless, that's kind of this position we both took. I think that's the right position. I mean, there's no reason. In a sense, part of our pitch was "You don't even have to overrule the result in Chevron itself, but you do have to overrule this methodology, which is the problem." So I think that's the answer to the question. I'd be surprised if the government agrees with everything I just said, but that does seem like the right answer going forward. Jean. We'll give you the last question.

 

Fifth Questioner: I wanted to take you up on Grant's Pass.

 

Hon. Paul Clement: Sure. No. This is a case where anybody who's been to a city on the West Coast will notice that there is a problem. These are beautiful cities. I mean, I went to Seattle the year between my Court of Appeals and Supreme Court clerkship, and I was about ready to move there. Now, part of that was I was and am a huge Nirvana fan, so I felt like I'd sort of come to the Promised Land and the coffee was great back at a time when coffee everywhere else was lousy, but it was just a beautiful, beautiful city. And I was there recently for a Ninth Circuit argument, and I felt like I had to run from my hotel to a restaurant then run back, and then run to the court. The federal court is literally on Fifth Avenue in Seattle. Should be nice, was nice. They have a real problem there.

 

And yet, the Ninth Circuit had decided that the Eighth Amendment of all things was an obstacle to state laws that tried to take issue with this by saying, "You just can't camp overnight in the middle of the city. We are not going to allow that. That's unlawful" The court took it up, and the question presented is, "Does the Eighth Amendment prohibition on cruel and unusual punishment prohibit these state laws?" And the answer is, of course not. I mean, it's not even close. I say this as somebody who thinks the Eighth Amendment's important where it applies, but it's a complete mismatch for this situation where states and localities have to have the opportunity and the ability to respond to local conditions that are deteriorating and do something about it. So again, this is one of these cases where, if anything, I was a little surprised it was as close as it was in the end, and it was 6-3, so it wasn't that close. But that's the decision in a nutshell. And I actually think it's a sensible decision and hopefully in the long run it's going to make it easier to argue cases in the Ninth Circuit. Thanks everyone.