A Seat at the Sitting - December 2021

The December Docket in 90 Minutes or Less

Event Video

Listen & Download

Join us for the third episode of the Federalist Society's Supreme Court Show: A Seat at the Sitting.  Each month, a panel of constitutional experts will convene to discuss the Court’s upcoming docket and debrief oral arguments from the previous month.  During the first two weeks of December, the Justices will hear ten oral arguments on cases including abortion, religious freedom, habeas, Chevron deference, and the Civil Rights Act.


  • Nicole Garnett, John P. Murphy Foundation Professor of Law, The University of Notre Dame Law School 
  • Ilya Shapiro, Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute 
  • Mary Ziegler, Stearns Weaver Miller Professor, Florida State University College of Law 
  • Brandon J. Moss, Partner, Wiley Rein  
  • Moderator: Adam Liptak, The New York Times 

To register, click the link above. 


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



Dean Reuter:  Hello and welcome. I’m Dean Reuter, Senior Vice President, General Counsel at The Federalist Society. Welcome to A Seat at the Sitting, a special Practice Group Teleforum webinar. Today, we’re looking at the December sitting of the US Supreme Court. Our reminder to our audience that this program is being recorded for use as a podcast in the future and on The Federalist Society website. Also, all expressions of opinion are those of the experts on today’s call.


We’re very pleased to welcome, for the first time to this series, a moderator to our program from the outside world. Our moderator will be Adam Liptak. He’s the New York Times Supreme Court reporter. He’s a friend of The Federalist Society, has done much of our programming in the past. With that, Adam Liptak, the floor is yours.


Adam Liptak:  Thank you very much, Dean. And thank you for putting together this really good format to give us a look at an upcoming sitting. Now, sometimes, sittings are kind of -- they even out. There’s a bunch of interesting cases. We’re coming into a sitting which has one significant religion case, one blockbuster abortion case, and some other cases. And we’re going to have -- give you an overview with a panel of distinguished luminaries. I’m going to introduce them very briefly. But first, let me remind the audience that we do aim to take questions at the end, and the best way to do that is when a question occurs to you, just punch the Raise Hand button, and then, sometime afterwards, we’ll come back to you, and you should try to remember the question that you thought you wanted to pose.


So let me introduce, very quickly, the panelists in the order in which they will set the table for what, I hope, are lively and informal and not particularly closely moderated discussions. But we’ll have different panelists sort of give an overview of given cases. In order of appearance, we’ll have Nicole Garnett, who’s a law professor at Notre Dame; Mary Ziegler, a law professor and historian at Florida State University; Ilya Shapiro, Vice President and lively presence at the Cato Institute; and Brandon Moss, a partner at the Wiley Rein firm. Nicole, tell us what we need to know about the Carson against Makin case.


Nicole Stelle Garnett:  Sure. And before I get started, it’s an honor and delight to be here today. So thanks so much for inviting me, Dean. So Carson v. Makin is a religious liberty case. The question in the case is whether a -- the state of Maine can exclude religious schools from a school choice program. Maine, Vermont, and New Hampshire have kind of an unusual system of funding secondary education. They’re all rural states, and many school districts in those states don’t have public high schools.


So in Maine — also in Vermont and, to a lesser extent, in New Hampshire — if you live in a district without a public high school, the district is given an option by the state. The district can either contract with another district to educate the kids that would need a secondary education in that district, and most in Maine do that. Or it can do what’s commonly called, tuition them, which is a -- just basically give them the money that they would pay for the contract — about $10,000, I think, in Maine — and they can use that at the school of their choice, public or private. Maine’s tuitioning program has been around since 1873. So the tuitioning money, the money that you would get if you live in a district that does not have a public high school, that does not contract with a public high school to educate you, you can use anywhere in the world. You can use it at a public school, a private school.


Many kids use it at boarding schools, elite prep schools. There’s some kids who have even used it at foreign boarding schools, but there’s one restriction, which is that you may not use it at a religious school, a school that the state of Maine deems sectarian. So there’s no question in this case that Maine could, if it wanted to, allow kids to take the tuitioning funds and use it at a religious school. That question has been resolved for over two decades now, since the Zelman case upheld school vouchers. And in fact, Maine did use -- allow kids to go to religious schools before 1980. In 1980, in response to a request by the ACLU, the Attorney General of the state issued an opinion letter that said that it would violate the Establishment Clause of the federal Constitution to allow kids to continue to use the tuitioning money at religious schools.


And since then, Maine has not allowed the kids to use their tuitioning funds at religious schools. This is even -- since Zelman, this program has been challenged a number of times, including by me, many years ago. But things have changed since 1980. There -- the law has evolved in a variety of ways. The first is, of course, Zelman. In 19-, in 2002, the Supreme Court upheld a voucher program that allowed poor kids in Cleveland to go to private schools, including religious schools, with public funds.


In fact, 96 percent of the children participating in that program went to religious schools. And then, in subsequent cases, the Court starts demanding this sort of adopting a rule that the Free Exercise Clause in the funding context — what it demands is neutrality, not hostility to religion — so it begins to suggest in a series of cases that a program funding a public-benefit program that excludes religious schools or that prohibits kids from using or beneficiaries from taking advantage of public-benefit programs because they’re religious violates the Free Exercise Clause. So interestingly, the First Circuit -- I’ll talk a little bit about what happened below, but the First Circuit upheld the Maine’s exclusion of religious schools. Within a few months of that, the Second Circuit struck down Vermont’s exclusion of religious schools. That may be one of the reasons the Court took it. There’s a clean circuit split now in this issue in almost identical programs.


There are really three cases that are important to the Court’s deliberation about whether or not this exclusion of religious schools violates the Free Exercise Clause. Two of them are relatively recent. In 2017, there was a case called Trinity Lutheran. In Trinity Lutheran, the state of Missouri said that its Establishment Clause, its Blaine amendment, the Missouri Establishment Clause, required it to exclude a religious preschool from a program that provided recycled tires for preschools to -- for playground resurfacing. And the Supreme Court said that violated the Free Exercise Clause because it was discriminating against the preschool because it was religious. It was religious discrimination and, therefore, was not neutral towards religion.


And then, just last year, in a case called Espinoza v. Montana, the Supreme Court held that when the Montana Supreme Court invalidated a very small tax credit, a small private school choice program in Montana on state establishment grounds, because it included religious schools, it violated the Free Exercise Clause. Again, the Court says, if you have a general program, public benefit program, you may not exclude religious schools, except -- without violating the Free Exercise Clause because that renders that program discriminatory and not neutral toward religion. So in both Espinoza and Trinity Lutheran, the Court -- the majority, both opinions written by the Chief Justice, leaves open the possibility that there may be a distinction between discriminating against a provider or school based upon the religious character of that institution and discrimination that is sort of motivated by a desire not to pay for religious activity. So what happened in the First Circuit is the First Circuit said, well, this is so-called -- this was motivated by the latter. Maine is not discriminating against these schools because of their religious character, but rather, it is choosing -- it’s making a decision that it does not want to fund religious education. The Court says that this -- the First Circuit said this so-called status/use distinction justifies the exclusion of religious schools from Maine’s tuitioning program, and therefore, the program is constitutional. Again, the Second Circuit finds, earlier this spring, the opposite.


One little interesting tidbit about the First Circuit opinion is that Justice Souter was sitting by designation. So that -- so in one sense, the question indicates -- turns on whether there is this distinction that allows states to just decide, “We don’t want to pay for religious education.” Is that distinction different between the character-based discrimination? I’m discriminating against you because you are religious, and I’m discriminating against you because I don’t want to pay for religious uses.


There is a third case that will play a role, which is a case called Locke v. Davey, which is a 2003 case. Locke involved a similar challenge to a program — it was a Washington scholarship program — that said you could use money to go to a religious school but not to train as a minister. And the Court upheld that based upon -- and it’s sort of -- it’s articulated as state interest in not paying for ministerial training. So on the one hand, you have these two cases, Trinity Lutheran and Espinoza, that say no religious discrimination, no exclusion of religious beneficiaries. On the other hand, you have Locke, which says it’s probably okay. It’s okay to not pay for ministerial training.


So my prediction is the Court did not take this case to affirm the First Circuit. I think the Supreme Court will find that there -- the status/use or character/use distinction is a distinction without a difference. I actually filed a brief in this case, representing Catholic, Muslim, and Jewish schools. And all of our clients in amicus brief, they would make the case that to be -- what it means to be a Muslim school is to teach Islam. What it means to be a Catholic school is to teach Catholicism. So there is no -- the status/use distinction is, for schools in particular, is the same thing.


To discriminate against a school because of its Catholic character, Muslim character is also to discriminate it against the school because it teaches religion. I don’t think Locke v. Davey will be dispositive. I think the Court, in Espinoza, made a very big effort. The Chief made a big effort to try to say that was just about ministerial training. Another little thing in the weeds is that in Locke v. Davey, the Supreme Court made a big deal out of the fact that the Washington Constitution was more restrictive than the federal Establishment Clause. And Maine doesn’t have an Establishment Clause. So that’s another distinction. Okay. So that’s Espinoza.


And I’ll just say a couple things about implications. There are a lot of implications here. The first is that the school choice movement has exploded in the United States. There are now 31 states with school choice programs. And I think this -- the biggest implication is this would further clear the way for more school choice and more legislative experimentation in the states because it would probably make it very difficult for states to rely on their own Establishment Clauses to invalidate voucher programs. And the second thing is that this status/use distinction, if the Court says there is no distinction between status -- religious status discrimination and religious use discrimination, there are a whole bunch of other programs, including the childcare provision of the Build Back Better program, that have these restrictions on expenditures for religious purposes that would come into question.


Adam Liptak:  May I ask you a couple of questions, Nicole?


Nicole Stelle Garnett:  Sure.


Adam Liptak:  If the Locke v. Davey question were to reach the Court and if the question was the government gives scholarships to all kinds of graduate students but not to graduate students in divinity school who are training to be ministers or priests or rabbis, what’s the correct answer to that?


Nicole Stelle Garnett:  So I think the correct answer is that there is -- it’s actually -- it should be unconstitutional to say you can’t -- you can do anything -- it’s almost sort of like viewpoint-based discrimination. It’s almost worse than this because it’s saying you can’t spend your money on a particular field of study. I do not think the Court needs to nor do I think it will overturn Locke v. Davey to overturn the First Circuit in Carson, though, because the Court made a big deal -- the Chief made a big deal out of the fact that throughout history we’ve paid for religious education, but we’ve had this allergic reaction to paying for ministers. So I don’t think the Court needs to reach the Locke question. I doubt that it will. I don’t think Locke was rightly decided, but I think it’s water under the bridge.


Adam Liptak:  And then, the second is the briefs in the Maine case make a big point of that it’s a rural state and it’s kind of stuck. It’s simply not capable in the outlying areas of providing public schools because there so few kids. But they want to replicate the public school experience, and the public school experience is a secular experience. Why shouldn’t they be allowed to do that through this program?


Nicole Stelle Garnett:  Well, if they want to replicate the public school experience, the state gives an option to the school, and Maine might well decide they wouldn’t do tuitioning anymore. They can contract with public schools. I don’t think Choate is replicating the public school experience. And -- so you’ve got kids going to Choate and Andover and Exeter, so I don’t think it’s -- I don’t know that you have -- well, to put it in legal terms, I’m not sure the state of Maine has a compelling interest in replicating the public school experience, but if it does, there is an easy option, which is contracting and consolidation of school districts.


Adam Liptak:  Got it. Other panelists, it’s such an incomplete subject --




Ilya Shapiro:  If I can add one thing -- and I also filed a brief in this case, Cato did, basically saying that there is no neutrality in the government-run schools, in the public schools, that they inherently take a position, including on religion and things like this, sometimes to be anti-religious, sometimes to -- anyway. It seems to me like -- and this probably piggybacks on what Nicole said -- that this will be the latest in a most favored nation kind of line of doctrine, that is that Maine doesn’t have a particular type of program, but if it does, then it has to treat religious institutions no worse than secular ones. I think that’s the common thread with Trinity Lutheran and Espinoza and things like this. So as, I think, Nicole just mentioned, they could get rid of tuitioning in response. That is valid. But they can’t treat the secular and religious differently.


Adam Liptak:  Other thoughts? All right. Well, let’s move to what is, at least in my world, the biggest case in a generation. Mary, tell us about Dobbs.


Mary Ziegler:  Sure. So Dobbs is, in some ways, a surprising case to have -- be the one that was a blockbuster. Mississippi is one of two states that bans abortion at 15 weeks. It’s not unusual in having this be a fetal-pain law. Most states that followed a national model that were fetal-pain laws banned abortion at 20 weeks on the theory that fetal pain was possible then because there was more research, although not -- certainly not a majority of studies suggesting that fetal pain was possible at that point rather than in the third trimester. Of course, why Dobbs is a blockbuster is because in order to uphold the Mississippi law, which is what I expect and what most experts expect, the Court will either have to hold that Roe and Casey were wrong, that there was a right to choose abortion, or it will have to hold that Roe and Casey were wrong to suggest that that right applies until viability, which is the point at which survival’s possible outside of the womb, at least a reasonable chance of survival. Viability, the date of viability, of course, varies, depending on the hospital and the pregnancy, but it’s certainly not at 15 weeks. I think, at the earliest, it would 21 weeks, often, in some facilities, 24 weeks.


So it’s also significant because the Court’s social movements strategizing has kind of come to a culmination in Dobbs in two different ways. Viability as a weakness was spotlighted by right-to-life litigators as early as the early 1980’s because viability’s been -- come in for criticism from some bioethicists, both pro-choice and pro-life, essentially on the theory that it doesn’t track our moral intuitions about when life takes on value to focus on -- as exclusively on dependency, especially if dependency tracks technological development or even technological availability in lower versus higher-income areas or better-resourced versus less well-resourced hospitals. Viability, of course, changes, which made it a subject of intense criticism from some of the Court’s members in the past, most significantly, Sandra Day O’Connor. And viability was always, I think, not particularly well explained in the Court’s abortion jurisprudence, so we have some good historical evidence as to why viability. Harry Blackmun, in early drafts of Roe, was considering a 12-week line rather than viability on the theory that most abortions in the United States happened before 12 weeks. Twelve weeks also tracked, of course, what the law looked like in other parts of the world and in other wealthy democracies but was -- he was convinced ultimately to adopt viability instead, largely by Thurgood Marshall, on the theory that low-income people without health insurance in the United States would be unable to get abortions, at least not clearly able to get abortions before 12 weeks, and that viability would make more sense.


Also, Justices Brennan and Marshall argued that viability created a sort of no-longer-zero-sum situation as between a fetus or unborn child and a pregnant person or woman because at that point there would be no obligation for that person to remain pregnant in order for that fetus or child to survive. So that said, none of that ever really made its way into the Court’s actual decisions, so viability in the Court’s decisions has always been justified more sort of as a it’s the best thing we’ve got, and other alternatives are not better. So it’s worth kind of thinking through why the Court would want to take this case and then what it could do. So some have argued that in order for the Court to uphold Mississippi’s law, it would have to overrule Roe in its entirety. This is an argument that you see coming both from lawyers who are certainly pro-life and consider themselves to be opposed to, or at least skeptical of the reasoning of Roe, as well as supporters of abortion rights. The Center for Reproductive Rights, for example, has taken the position that upholding Mississippi’s law overrules Roe.


I don’t think the Court necessarily shares that belief. I think it’s quite possible that the Court will certainly overrule Roe but not necessarily do so in June of 2022. There are different ways, I think, this could happen, but I would imagine that if the Court is not going to reverse Roe in its entirety in Dobbs, that the Court would be better served, if it plans to overrule Roe down the road, by doing as little as possible -- right? -- so, in other words, not inadvertently bolstering the undue burden test or the idea of a right to abortion while buying itself time, if its concerned about optics or institutional legitimacy to make the case as to why Roe should go. So I -- for example, you can imagine the Court saying that while there’s no need -- while viability is not the line and viability is not an essential part of the holding of Roe and Casey, much as Casey held that the trimester framework was not an essential part of Roe, that there’s no need for the Court even to resolve the constitutionality of Mississippi’s law because the lower courts were all acting on the assumption that viability was the dividing line, so they may just remand and let the courts figure out whether this law or other laws would be constitutional.


What would happen if the Court did that, of course, would be that we would see an even bigger surge in state laws, trying to test the boundaries of Roe. We would probably see more lower courts, particularly courts like the Fifth Circuit, upholding restrictions that states do introduce, particularly pre-viability bans. They would view, I think, Dobbs as a signal of not that Roe is gone, that Roe will be gone, and that more pre-viability bans are fair game. And I think, ultimately, then, if we’re thinking about Dobbs, it’s really a question not of, in my opinion, not of whether the Court overrules Roe but the question of how and when and how long it takes and whether the justices feel comfortable doing so immediately in what would be Justice Amy Coney Barrett’s first major on merits abortion case and Brett Kavanaugh’s second or if they feel that they want to take that -- do that process over the course of a few decisions and potentially, I think, with different kinds of regulations rather than one so focused on viability. So I could go and go, but I’ll stop there because I’m assuming lots of people want to chime in on this case.


Adam Liptak:  Let me ask one quick question then open it to the panel. So I could certainly imagine a decision which draws on language in Casey about undue burdens and substantial obstacles and large fractions and says that in Mississippi where the sole clinic only does abortions, the 16 weeks, 15 weeks satisfies that mélange of factors from Casey. But what I don’t know, Mary, and what people will want and are justified in wanting is some kind of line other than viability. And is there something out there, some principled line, other than viability?


Mary Ziegler:  Well, obviously people who advocate for heartbeat bills propose that because they think it’s a line. People who, I think, are pro-life think that fertilization is the line. I think if you’re the Court and you’re -- I’m just, from a realpolitik standpoint, I don’t think the Court wants to draw another line. Right? I think everyone is correct to assume, in my opinion, that the Court will reverse Roe, whether they reverse Roe this year or not. And so, drawing another line, even if that line is much earlier in pregnancy, I think, makes it harder to reverse Roe down the line, even if that line, for example, is fetal cardiac activity or a heartbeat, I think. So I would be surprised if the Court draws a different line because I think that, if the Court is not prepared to overrule Roe outright immediately, I don’t think the Court is going to want to make its job, in doing so a year or two down the road, more difficult.


Nicole Stelle Garnett:  So I think that Mary’s right, but I think it’s important to keep in mind -- my view is to get rid of viability as part of the Casey rule is to draw a different line and to make it much more difficult for the Court to revisit Roe down the road because Casey’s rule is there is no -- basically, no bans before viability. And so, if you say just undue burden, then not only does it -- it invites the Court to litigate everything, but it also, I think, is a new rule, and a rule-bound court is going to be, even if the Court would have preferred this to be a different lawsuit -- it could have been a Down Syndrome ban or something. I just think any rule that is not -- doesn’t include the word, “viability,” in it is a new rule, and that makes it very hard to chip away at that rule down the line. So if they want to overturn it, this is when they should overturn. Just to give you one example, I think Mary’s right. If you think about -- right now, the Sixth Circuit recently invalidated a Tennessee law that says -- it’s a heartbeat law. It says six weeks, and if that’s unconstitutional, eight weeks, and if that’s unconstitutional, ten weeks, and if that’s unconstitutional, twelve weeks, up to twenty-four.


So if you sort of just -- tinkering to me doesn’t seem like a really tinker here. It seems like the adoption of a new rule that invites all kinds of involvement of the Court, and the Tennessee case is the next one up. I just think it’s not clear at all to me that there is some middle ground that keeps the core of Casey that doesn’t adopt a new rule altogether.


Mary Ziegler:  Yeah, I agree with that, Nicole. I think it’s just whether the Court wants to admit that because I would say the idea that Casey -- the idea -- for example, the idea that Casey could say, “Oh, you know, the trimester framework, it was just this little thing. It wasn’t really that big of a deal. And the core is actually these other things.” That would have been -- was, I think, a farcical argument at the time, and I think both pro-life and pro-choice interpreting Casey saw it as a new rule. It was not whatever preserving the essential holding of Roe means.


So I don’t know -- I think the Court may want to pause or delay and may want, frankly, want more litigation and uncertainty if the goal is to take time to explain what -- why Roe should go and to sort of soften the blow from the standpoint of political fallout, if that’s what the justices are concerned about. But I do think -- I think the reason that -- there are certainly political reasons that people on both sides of this issue say that upholding Mississippi’s law would be tantamount to overturning Roe, and I’m happy to talk about those, but there’re obviously principled reasons, too, because it would be a new rule, unquestionably. It’s just whether the Court wants to frame it that way, given that we’re talking about abortion, I think, is a much more open question.


Adam Liptak:  Does it enter the Court’s calculations that we have a change of personnel at the Court, that while Kennedy and Ginsburg were on the Court, this wouldn’t be on the table, and that one reason to go slowing is not to have the public think that a mere change in personnel gives you a change as fundamental as overruling Roe?


Mary Ziegler:  Possibly, yeah. I think that -- and it’s -- I don’t -- again, this is just descriptive. I’m not saying this should or shouldn’t happen, but the Court does seem more anxious about popular opinion and certainly perceptions in partisanships than usually is true. Right? And that’s true of justices across the ideological spectrum, so I think that’s possible. And I think, as a historian, it reminds me of Casey because, at the time of Casey, people who are pro-choice wanted the Court to quite clearly say it had overruled Roe because they calculated that or believed that that would maximum political backlash in an election year. People, I think, who were pro-life were hoping that the Court would be clear so as to avoid ambiguous outcomes and backsliding in the future. And the Court, of course, wanted the ambiguity because it gave it wiggle room to do what it wanted.


And I don’t know if we’re at another moment like Casey, but we have seen this movie before in the sense that both movements can actually be in agreement that the only principled outcome would be a clear overruling, and the most politically desirable outcome would be a clear overruling. And the Court, then, may not give anyone what they want and go with something that the Court tries to pass off as a middle ground, even if, in fact, it represents a big overhaul in doctrine.


Nicole Stelle Garnett:  I can’t say what enters the Court’s calculations, but I don’t think the Court’s very good at reading political tea leaves. And I think that you could make the exact opposite argument. I think Mary is saying there are a lot of people that will think, on the left and the right, that a failure to just clearly say Casey is affirmed or Casey is -- and Roe are gone is incredibly unprincipled. And I don’t know that we can predict the backlash for either. One would hope that the answers -- the Court doesn’t try too hard to behave politically. The biggest -- a very big problem with the abortion jurisprudence has been that it has embroiled the Court in constant politics.


So there is probably -- there are probably a number of people in the Court who would like to get out of that politics by saying, just clearly, Roe is gone, or Roe is not gone. I don’t think that predicting who’s going to win or lose in the -- at the ballot box or what if people think the Court is more or less principled, depending on you overturning Roe or not, is something that nine people are very good at doing.


Adam Liptak:  Ilya, does Cato take a position in abortion cases?


Ilya Shapiro:  We don’t. My colleague, Clark Neily, spelled out in some detail why all that is. There are -- from a policy perspective, there are abortions all across the spectrum, from the staunchest pro-life to the staunchest pro-choice, and we really don’t have much to add to the metaphysical question of what’s an undue burden or when life begins and when rights attach and things like that, so we have never filed in an abortion case. But what I wanted to -- what I want -- was wondering was, ironically, that whatever the ultimate result of Roe is, whether it gets overturned some cases down the line, it would be interesting. One possible result here would be an overturning, or at least either implicit or explicit, of Casey, which would then strengthen, in effect, Roe and the trimester rubric, or when you can and can’t regulate, maybe allowing -- upholding Mississippi’s law under Roe but, thereby, subverting Casey. I think that’s possible.


Nicole Stelle Garnett:  I think it’s not probable. One thing that -- it’s -- this is -- I think that, Adam, you’re right. Justice Kennedy, Justice O’Connor, Justice Souter, Justice Ginsburg, they’re not on the Court anymore. It’s a very different court that is, leaving aside the issue of abortion, that approaches the law -- it’s a rules, not standards, court. Justice Scalia, famously, “the Rule of Law as the Law of Rules,” and I think one of the problems with any half way is that at least five of the -- probably at least six people think that Roe is illegitimate. As a rule, it was made up.


And so, it goes -- it’s very hard to go back to it. The same goes -- you could have a stare decisis argument, I think, which is not particularly strong in this context. But I think to say that we’re just going to abandon Casey and go back to Roe seems would -- it would be worse, if you are the kind of thinkers, legal thinkers that the conservatives on the Court are.


Adam Liptak:  Well, I was struck in the clinic’s brief just how very much of it was not a first principles argument but a stare decisis argument, and that goes to your point, Nicole, that if this was a question presented to this set of justices fresh, without the stare decisis background of Roe and Casey, the outcome is pretty clear. So it probably does turn largely on stare decisis and what stare decisis represents more generally, which is the Court’s view of its function, its authority, its legitimacy and how it should make changes, particularly right after a change in personnel.


Mary Ziegler:  I think -- and also, there’s a pretty extraordinary social movement politics around stare decisis and Roe that’s, I think, quite unusual. Usually, social movements, when they engage in kind of constitutional struggles, talk about rights and about substance. They don’t get into things like stare decisis, but there’s been an extraordinary amount of work, I think, in both pro-choice and pro-life movements about what we should think about. For example, what does it mean that a decision is unworkable? Does it mean that it’s difficult to apply, or does it mean that it’s unsettled or it’s failed to settle a social divide?


There’s been a lot of work on Roe’s historical effects. Right? Did Roe cause our partisan divide? Did Roe politicize federal judicial nominations? There’s been a tremendous amount of advocacy on precisely that question, I think, because people believe correctly that this group of justices, and perhaps even other groups of justices, would be only inclined not to reverse Roe and Casey because of stare decisis, which has led to, I think, even outside of legal circles, thinking about precedent in ways that are quite extraordinary.


Nicole Stelle Garnett:  It’s important to always keep in mind, I think, the stare decisis factors, though, are very wrapped up in merits factors, so it’s not just that it’s been around a long time. Different justices, obviously, have different views of stare decisis. Justice Thomas has said he won’t follow any decision that was clearly erroneous. But even the traditional factors, the level of erroneousness of the original decision and, as Mary points out, workability and other things, those are merits questions, and I think they cut in favor of getting rid of Roe and Casey. And so, I think that stare decisis is not as strong in this case as it is in some other cases. But it certainly -- and also, I don’t know that stare decisis weighs in favor of a middle ground here because I don’t think the middle ground would really be giving stare decisis effect to Casey, but it would be coming up with a new rule.


Adam Liptak:  So I think what I’m hearing from everybody is that this, as a legal matter, may be properly an all-or-nothing proposition. And yet, public opinion polling, which I know is not a legal factor, and international experience, which is a controversial factor among many lawyers, would point you to a middle ground, would point you to, say, 12 weeks. That’s what American people seem to support. That’s the experience in much of the rest of the world. The justices should ignore all that?


Ilya Shapiro:  Well, that’s a policy argument, and that’s probably the -- what would -- if Roe were reversed, remember that it just means that it goes back to the states. And so, probably some states would outlaw it altogether. Some would have it through birth or birth plus 30 days, if you listen to Peter Singer, but there’d be a 12-week rule or a 15-week rule or whatever, which is, as you say, seems to be where popular opinion might land.


Adam Liptak:  All right. Any final thoughts on Dobbs? Any predictions? Any sense of whether the newest justices who, along with the Chief Justice, probably are in the middle? Is it -- in Casey, a troika of Republican appointees surprised us. Might we get a surprise plurality opinion from the Chief, Kavanaugh, and Barrett, kind of kicking the can down the road?


Mary Ziegler:  I think -- I don’t -- that wouldn’t surprise me at all. I think -- the only thing I would say as a clear prediction is I don’t think the Court can get out of the abortion business. Right? Justice Scalia in Stenberg v. Carhart in 2000 famously said we should get out the “abortion umpiring-business.” I’m not sure there’s a way to do that now because we’ve already seen on the pro-life side briefs from folks like Robby George and John Finnis saying that if the Court is to reverse Roe, it should then take the next step and say that a fetus or unborn child is a person under the Fourteenth Amendment. I know, on the pro-choice side, there have been moves to sort of find alternative foundations or even change the number of people sitting on the Court or introduce term limits. And so, while it may have been — theoretically, it’s counterfactual — possible at some point for the Court to have never opened this Pandora’s Box, it’s open now, and I don’t know if there’s a way, regardless of what the Court says in Dobbs, to close it.


Nicole Stelle Garnett:  I think -- well, I think that there -- it will be very difficult to totally get out of the abortion business, but to your question, Adam, I think it’s a little premature to buy really quickly the three, three, and three narrative about the Supreme Court. Justice Barrett isn’t -- it’s -- she hasn’t even served an entire term. And if you were to have asked conservatives, for example, about whether Justice Gorsuch was a conservative the year of Bostock, you would have gotten a very different answer. I thought it just -- rhetorically, the way that that narrative developed so quickly after, basically, an aside in Fulton, we just don’t know yet.


And I think we shouldn’t jump to conclusions. I don’t think that Kavanaugh and Barrett are Tony Kennedy or Sandra Day O’Connor. They’re not the same way. They don’t think about the law the same way. So they’re not going to, to your point, be jumping on something like, well, 12 weeks would be a nice, round number. So I just think we need to take time before we decide there are these camps. That is, to me, is not at all clear.


Adam Liptak:  All right. Let’s move on. Let’s move on to the really significant cases. Ilya, you’re going to tell us about a case that’s settled, involving CVS and the American Hospital Association against the repeat litigate, Becerra.


Ilya Shapiro:  You did a mash up of my two cases, Adam. It’s CVS v. Doe, was the one that settled. And that’s the case about whether under the Rehabilitation Act, which bars discrimination on the basis of disability by any program or activity receiving federal funds — and the Affordable Care Act had kind of tweaked that — whether that allows plaintiffs to bring claims based on disparate impact, that is that a particular policy disproportionately affects people with disabilities. And that’s the one that settled, which happens occasionally after cert has already been granted. And here, briefing already happened. We filed a brief, so that was for naught. Who knows what the terms of the settlement are, but the question of whether disparate impact is viable under those circumstances is -- remains an open one, at least with respect to the Supreme Court.


And the second case is the big Obama Care case of the term, American Hospital Association v. Becerra. But before I get too excited, this is not an existential challenge to Obama Care. Those, I think, we are done with. This is the type of run-of-mill challenge that we’re going to see for decades, like we’re still seeing over Medicaid and Social Security and all these other major social programs that have been around for a long time. So here, this is a case involving a rule, an HHS rule that cut Medicare reimbursement rates for prescription drugs for hospitals that participate in a program for underserved communities. The DC Circuit ruled that this reimbursement cut was a reasonable interpretation of the Medicare statute.


And the Court is reviewing that, and that sounds like a Chevron challenge, which, indeed, is why people are paying attention to this case, not because it’s an Obama Care case. This is really the first case under the Court’s new composition, where the justices will have an opportunity, perhaps, to cut back on the Chevron doctrine, the idea of judicial deference to agency interpretations of their operative statutes. Famously, a few years ago, in the Kisor case, the Court declined to overturn Auer deference, A-u-e-r, Auer deference, which is deference agency reinterpretations of their own regulations, although both Chief Justice Roberts, who joined the majority in that case, and Justice Kavanaugh, who joined the dissent in that case, said there wasn’t much daylight between Justice Kagan’s majority position, that was essentially rewriting that Auer deference standard — really should be called Kisor deference at this point — and Justice Gorsuch’s dissent, which said that I’d throw it out altogether.


But perhaps on Chevron, maybe Chief Justice Roberts will say, well, we shouldn’t give any deference when the agencies are interpreting Congress’s work because that’s a separate branch of government, or maybe they’ll do the same thing again and just cut back on the scope of Chevron deference. Or maybe they’ll decide it on the alternative grounds because the Court also asked whether this challenge under Obama Care is barred by a provision of federal law that’s -- limits judicial review of certain Medicare-related calculations. So a lot of technical balls in the air on this case, but if the Court is eager, and, of course, several of the newer justices as well as several of the older justices have said that they are eager to at least tweak, if not wholly overturn Chevron. That -- this could be a vehicle for that, again, an important administrative law case this term.


Adam Liptak:  What’s the correct answer to whether Chevron should be limited or overruled?


Ilya Shapiro:  I think it should be significantly rewritten. I would have applied what Justice Kagan did to Auer to Chevron in the sense that she said that there only should be deference when the agency’s acting with expertise, not as lawyers. So if it’s -- as biologist or economists or something, then there could be some deference, but judges are as good lawyers as agency lawyers are, and so therefore, no deference should be owed there. But it’s a complicated circumstance. And again, with what has been the case with a lot of areas with the Roberts’s Court, if there’s a majority inclined to overturn Chevron altogether, I think it’ll take more than one case to do.




Adam Liptak:  Other thoughts on -- yeah, good ahead.


Nicole Stelle Garnett:  Yeah, I just can’t imagine this is the case where they’ll get rid of Chevron. You’ll get a concurrence from Gorsuch and Thomas, maybe saying that we should. It seems to me that a lot -- Chevron is being eaten from within. Most -- many, many cases never get to any question of deference anymore. A lot of these cases are so-called Chevron step zero cases. And Chevron deference, which folks like Justice Scalia always championed it as a conservative — small c — way of the Court not getting too far off the rails and taking -- making political decisions has been just -- it went too far, and now, the Court is slowly curtailing it.


I don’t see it going away, but I don’t think that the younger justices -- we don’t know what they think yet, and over time, on this question as well as the companion question, which is about delegation, I don’t think -- I teach state constitutional law. So many states don’t have Chevron deference, but they also don’t have -- they don’t -- they have a real delegation -- nondelegation doctrine, so I think those two things will continue to be prossed, but this isn’t probably the case for making any radical decisions.


Adam Liptak:  Brandon, I feel like I’ve done a bad job as moderator bringing you into the conversation and, partly, because I didn’t know whether you wanted to opine on the more controversial cases. But I wonder if you have thoughts on these Chevron developments.


Brandon Moss:  It’s interesting. Kind of seeing it both sides and goes both ways. But I agree; I don’t think we’re quite ready for one case that overturns it yet. It’s going to be a series of little steps that get there.


Adam Liptak:  Ilya, let me ask you about a statement you made at the outset that the agency is now secure. There was some talk after the most recent ACA case, which, after all, went off on standing, that you could imagine someone withstanding to bring that same claim. Do you think the days of big ACA challenges are truly over?


Ilya Shapiro:  If a mandate can be transmogrified into a tax and if an exchange established by the federal government is the same as an exchange established by the state, then I think we’re done with that. And at this point, it’s not so much the ACA. The ACA is engrained. It’s the health care system. It’s the law. It’s -- there were sufficient challenges, and there were sufficient opportunities to change it politically.


So yeah, I don’t really see the Court saying, oh, yes. You threaded the needle. After 15 years of avoiding our due diligent efforts of wholesale evisceration of this law, we’re now going to get rid of it. So I think for all practical purposes, yeah, we’re stuck with it.


Adam Liptak:  All right. Any further thoughts on any of this? Let’s move on for Brandon to tell us about Becerra, repeat litigator, against Empire Health Fund.


Brandon Moss:  Serial litigant, that Becerra guy. Hey, guys. Glad to be here today to talk about one of the other cases, I think, as it was introduced at the beginning, clearly less controversial but interesting, nonetheless. Specifically, Empire Health asked the question if there’s a difference between being eligible and being entitled to something and to what degree does an agency get to decide that question when the agency, allegedly, has a financial incentive at odds with Congressional intent. And a circuit court previously weighed in on the issue. Empire Health began as a case brought by a hospital who in 2008 was less than pleased with its Medicare reimbursement rate and challenged an operative 2004 HHS regulation.


Let’s make sure that we’re all on the same page, though, about the subject matter of the case, just because it kind of really matters here. In 1983, Medicare switched from a reasonable-cost-of-treatment standard to reimbursed hospital stays to a perspective payment system. There, the payment is determined based on a predetermined amount associated with a primary discharge code, covering the major, most expensive reason for the stay. But differently, the payment’s based on a diagnosis, not the actual cost of treating a person. For example, a patient comes in with appendicitis, stays for three days. You get x reimbursement, even if that patient also required additional minor services.


Congress said, however, that those fixed per-patient amounts were subject to certain adjustments that were prescribed based on various hospital-specific factors. An issue in this case is one such adjustment. It increases Medicare payments to hospitals that serve a disproportionate share of low-income patients, known as the disproportionate share hospital, or DSH, adjustment. Congress recognized that low-income patients are often in poor health and, therefore, costlier for hospitals to treat, and thus, hospitals that treat a lot of low-income patients have higher costs and should receive higher reimbursements.


After waiting years for HHS to create a measure to identify such hospitals — and they still didn’t do it — Congress decided to go ahead and do it themselves. They created a statute that calculates a Disproportionate Patient Percentage calculation, basically, the higher the percentage, the greater the reimbursement. The Disproportionate Patient Percentage is statutorily defined as a sum of two fractions, often called the Medicare fraction and the Medicaid fraction, and this is central to the case. For the Medicare fraction, the numerator is the number of patient days for people both entitled to benefits under Medicare and entitled to Supplemental Security Income, or SSI, in the Social Security Act. The denominator is the number of hospital days for people “entitled to benefits under Medicare.”


It does effectively ask, out of the patient days for Medicare beneficiaries, what percentage of those days came from Medicare beneficiaries who were also entitled to SSI benefits. The other calculation is the Medicaid fraction. There, the numerator is the number of patient days for people who were eligible for Medicare assistance -- Medicaid assistance under Medicaid, but who are not entitled to benefits under Medicare per day, and the denominator there is the total number of hospital patient days thus calculates as a percentage the hospital’s total patient days in a reporting period, how many days of those were attributable to patients who were not entitled to Medicare benefits but who were eligible for Medicaid benefits. This case concerns a calculation of the Medicare fraction and the meaning of the phrase “entitled to benefits under Medicare.” In both that fraction’s numerator and denominator, the central dispute is whether that phrasing comes as individuals who satisfied the statutory criteria to be entitled to Medicare benefits at the time they received services from the hospital but for which services Medicare ultimately did not and was not required to pay the hospital. In a 2004 regulation issue, HHS determined that such individuals are to be counted in the Medicare fraction.


A bit of history behind the rule. Prior to 2004, when HHS calculated a hospital’s DSH adjustment, included in the Medicare fraction only covered Medicare patient days, days for which payment from Medicare program was available to patient. Although HHS, generally, and other places had a history of reading “entitled” to mean qualified, not actually participating or receiving coverage with respect to this calculation, it read the phrase “for such days” as directing it to focus on patient days for which the hospital’s actually paid. They also use that same one for the Medicaid fraction. For Medicaid, though, because it’s in the numerator, people were upset, and they wanted more people to count. For example, the percent should be based on the people who actually qualify for Medicaid, not just people whose hospital stay is Medicaid-covered because that was a better shower of who’s low income.


Indeed, four courts of appeals, back in the late ‘90s, said that HHS position, that only patient days actually paid by the Medicaid program should be counted by as the numerator of the fraction. And so, CMS ended up issuing a rule that said, okay, for Medicaid eligible days, we’re going to count whether or not the hospital received payments for those in-patient services. In 2004, though, this regulation was promulgated, which carried over that same approach to the Medicare fraction. Here, Empire commenced their action, challenging that regulation in the Eastern District of Washington. They said that it was substantially and procedurally invalid. They said that the interpretation of “entitled benefits” conflicted with the statutory language in Ninth Circuit precedent.


They also said the rule failed to comply with the notice and comment procedures under the EPA. The Eastern District of Washington granted a partial summary judgment. First, though, it rejected the substantive challenge. It found the Secretary’s interpretation of “entitled benefits” under Medicare Part A in the Medicare fraction as to encompassing all individuals who had met the statutory requirements to be a permissible interpretation of ambiguous statutory language. But it did find that the rule was procedurally invalid because it was not a logical outgrowth of the agency’s notice of proposed rulemaking.


Ninth Circuit affirmed but on different grounds. They said that the final rule was a logical outgrowth of the agency’s proposed rule and that the district court, thus, errored in vacating the rule through procedural grounds. But the 2004 regulation was substantively invalid because the interpretation was foreclosed by its prior decision in a case called Legacy Emanuel, which addressed the Medicaid fraction we just talked about. Legacy Emanuel is one of the cases that rejected HHS’s approach to excluding from Medicaid fractions’ numerator those patients of the individual who satisfied the criteria for Medicaid eligibility but for which the Medicaid program did not ultimately pay. In Legacy, the Court presumed that Congress, using both the terms, “eligible,” when referring to Medicaid and “entitled,” when referring to Medicaid, intended them to have different meanings and interpret “entitled” to mean that one possesses the right or title to a benefit for a particular service, and it construed “eligible” to be broader and not to be limited to only those days actually paid by Medicaid. The Ninth Circuit said that Legacy’s decision resolved the meaning of “entitled to,” when referring to the Medicare at step one of the Chevron inquiry, and therefore, there was no additional room for further or contrary interpretation.


Notably, however, the Ninth Circuit ruling conflicts with rulings in the DC and Sixth Circuit that upheld the agency’s interpretation as reasonable reading of the statute. In fact, the Ninth Circuit mentioned that in their own opinion but declined to adopt the other circuits’ because they realized that those other circuits weren’t presented with this situation where there was binding precedent in place. Of course, the government filed cert and, now, argues that the regulation is, first, consistent with the statute because the statute -- the Secretary permissibly interpreted the language to encompass all persons who meet the statutory requirement to be entitled to benefits under Medicare Part A. They also say that HHS is entitled to deference because it’s a reasonable reading of the statute, even if the statute doesn’t compel that reading, i.e. the Court could resolve this without determining whether HHS’s reading is the best or just a reasonable one. And moreover, the rule’s consistent with HHS’s long-standing interpretation of “entitled to.” It also went through valid notice and comment rulemaking, and it’s also been in effect since 2004 and applied nationwide since then.


The hospital, of course, is defending and is arguing that the statutory text does not support the Secretary’s reading. Most notably, different language, “eligible” versus “entitled to,” must led to different results. “Eligible” should mean capable of receiving; “entitled” should mean an actual right to receive. For example, everyone over 35 is eligible to become president, but only the individual elected is entitled to serve. They also say the Secretary’s reading defies the purpose of the rule, and the rule’s not a reasonable interpretation because it systematically reduces payments to hospitals by imputing the same meaning to two different words and two different meanings to the same word in the statute. It would be cross purposes to read it as everyone, given the implications for SSI qualifications.


In other words, if you’re strict on one, you must be strict on both. Otherwise, you’re not getting the right measure of [inaudible 00:56:46]. HHS’s position is that a patient is entitled to Medicare benefits, even if the patient had no right to payment. But it interprets “entitled” SSI benefits as requiring not only the right to payment but also the receipt of that payment. HHS, thus, interprets “entitled” more narrowly for SSI than for Medicare, even though Congress used the same word in both contexts.


Another argument is that HHS’s interpretation is not a legitimate exercise of agency expertise; that could trigger deference. The argument here is that HHS’s behavior has been cross purposes with the statute’s core purpose from the outset, so the Court should not give them deference. And also, of course, the decision came from flawed rulemaking. Here, there is a strong history where, right away, HHS refused to put the regulation in place to create the adjustment. Then, they created a rule that really minimized Medicaid, and then, once they got stricken down there, they went ahead and changed the other calculation. Again, they’re trying to get to this result, and that’s what they’re saying is that -- why it’s not legitimate. Oral arguments for this case are set for November 29th, which I think is next week.


Adam Liptak:  Thank you very much. That description makes me think that if I’m a Supreme Court justice, I would do just about anything not to have this case assigned to me. Further thoughts on this case?  Let me remind the audience that we’re going to turn to your questions soon, and if you hit the Raise Hand button, I’ll call on you, and we’ll be happy to have questions. But let’s take all of this material we’ve talked about so far and also add into it the two big cases argued just a couple of weeks ago on the Second Amendment and on the Texas abortion law and on the pending report from President Biden’s Supreme Court Commission.


And let me ask you more generally, pulling back the lens, what are we seeing about this new Supreme Court, and what kinds of overhauls, if any — term limits, Court expansion, docket management, anything else — we might see seriously contemplated? And whether seriously contemplated or not, might they be a good idea? Let’s maybe go around the horn once on whatever thematic thoughts you have on all of this delightful stew of Supreme Court material. Nicole, your thoughts.


Nicole Stelle Garnett:  I haven’t followed the Commission very carefully. I’m of a -- the “if it ain’t broke, don’t fix it” kind of view. I don’t -- I think the prattling on about the so-called shadow docket is overstated, and we used to call it when we clerked, we called it the docket. But so, it doesn’t seem to me -- I think the Court -- the biggest reform I would suggest is the Court should take more cases. Then, we would have a little bit more -- they’re not working that hard right now, it seems like, especially during COVID. They were down — I don’t know — what? — 75.


So, yeah, I think the Court should take more cases, and -- otherwise, I just don’t -- I don’t know that much needs to be changed, at least with respect to the Supreme Court. Some of the things that you mention, Adam, obviously have constitutional implications, including term limits and other things. Are there circuits or districts that need more or fewer judges? Probably. But as far as the Court, that’s my recommendation: use the cert power a little more frequently.


Adam Liptak:  And we’ve seen a little bit of that. What some people called the shadow docket, some people call the emergency docket has lately, in a couple of cases, the Court, instead of shooting from the hip as it were, put it onto the merits docket. In the case of the Texas inmate seeking to have his pastor present and touching him and praying with him, the Court put that emergency docket case on the merits docket. And of course, the two Texas abortion cases went onto the merits dockets, so I take it that’s probably a popular thing, that instead of thin briefing and no oral argument, you have something like full briefing and an oral argument and then a reasoned decision. Mary, I think of you mostly in the abortion space, but you probably have more general thoughts, too, about the Court.


Mary Ziegler:  Yeah, I think, in terms of what will happen, I tend to think there’s a relationship between what the Court does and what will happen. I think, descriptively, if the Court doesn’t do anything that would be too controversial too quickly, the Commission was, I think, not entirely of the “it ain’t broke” mindset but more or less. So I think, descriptively, we’re not likely to see any kind of major changes to the Court, unless the Court does something that makes the Court and its operations more politically salient. In which case, I think that that would become more descriptively possible. I think -- at the moment, I think President Biden and his advisors think that changing the Court in any kind of meaningful way is a political loser, so I think it would require -- so for example, if the Court does overrule Roe outright in June, I think then, just descriptively, the possibility of changes to the way the Court operates would become less remote, certainly, than it is now.


I think, like most people, I’m -- the idea of adding justices to the Court, in addition to some of the constitutional questions Nicole raises, just strikes me as a bad idea because then, of course, everyone would add justices to the Court, and the Court would resemble -- maybe resemble the Senate. And I think few people want anything to resemble the Senate. That’s something most people agree would be a bad idea. From a policy standpoint, I’m a little more sympathetic to the idea of term limits, taking the constitutional questions aside, but I think -- again, I don’t think either of those will be anything more than a nonstarter unless the Court does something to make itself dramatically more politically salient than it currently is. But of course, we have an extraordinary -- whether we’re thinking, at the moment, of this particular sitting or the Court’s willingness to take on other divisive issues, it’s possible that that could change. So if we were having this conversation in six months, what seems politically possible, when it comes to the Court, may be different than what I’m imagining now.


Adam Liptak:  Well, let me kind of flip the causal arrow on that. If you think that that possibility is a live one, should the Court overrule Roe, might the Court be less inclined to overrule Roe because that possibility might be there?


Mary Ziegler:  Yeah -- or again, I think it’s not a question of will the Court -- I could be wrong. Right? Everybody was wrong in Casey, so it’s possible that the Court will just never overrule Roe. I would be surprised if that doesn’t -- if that happens. I think more the Court may be aware of that possibility and how it goes about overruling Roe because there would be a way to do so that’s quick and very clear and very -- kind of not managing expectations. And there are ways that would be less that way, if you’re just thinking about this from pure a politics-and-optics standpoint.


So I think if the Court is concerned about — which they may not be — but if they’re concerned about court reform or court restructuring or however you want to -- court packing, whatever, however you want to frame it, that would probably militate more in favor of the Court not, certainly, preserving Roe and Casey, which I don’t realistically think is on the table, but it may point in the direction of a sort of multiple step overruling rather than a single step one.


Adam Liptak:  Ilya, I think you followed the Commission fairly. What are your thoughts?


Ilya Shapiro:  Yeah, I testified before it in July. And I do have some thoughts about this supreme disorder and, more generally, judicial nominations and the politics of America’s highest court. In fact, I wrote a book of that subject -- of that title, which I know, Adam, you’re familiar with because you’re quoted in it, and I sent you a copy. Still waiting for the New York Times review but hope springs eternal.


Adam Liptak:  Who know? Who knows?


Ilya Shapiro:  Ultimately, what will happen? Nothing because Congress is on a razor edge and can’t legislate much of anything these days. And the one issue on which there is any modicum of clear public or elite approval would be term limits. As Nicole said, that would take a constitutional amendment. So ultimately, the Court is the most respected institution we have, essentially, even if it’s dropped a few points in public confidence in the last few years. It’s still loads ahead of anywhere else.


And on all of these big politically salient controversies, it’s not like it’s taking positions or could take positions that would be on the short end of an 80/20 public opinion split or something like that, whether it’s abortion or affirmative action or certain other things. We’re kind of playing between the 40-yard line, so it’s going to disappoint people — and it’s a sizable number of people — whatever it does, but it’s never going to get to that super majoritarian legitimacy endangering prospect that some elites think it might be at already. So ultimately, this Supreme Court Commission, composed as it is largely of full-time academics, is going to turn out an academic report, not unlike my book in many respects, I think, on the state of the debate, the history of it, the merits and demerits of various proposals.


But my view, at the end of day, is that we don’t have a problem with the process but with the product. That is the Supreme Court is important; it rules on lots of important things because, over the decades, it’s aggrandized itself and centralized power within Washington. And we’re at the culmination of several trends where divergent, interpretive theories map onto partisan preferences at a time when the parties are more ideologically sorted than at least the Civil War, so there’s no avoiding these politically fraught fights over confirmations or anything else.


Nicole Stelle Garnett:  So I think -- I just -- back to Mary’s point about can you -- should they think about whether or not if they overturn -- which path will lead to the least interference or the lowest risk to the Court being subject to some kind of political pressure. I just want to say that I -- it’s not all clear to me that the middle ground, if there is one in Dobbs, is actually that. I think that will be painted as a terrible hit to abortion rights, and the -- a lot of very, very disappointed people on the right and the left. There -- a lot of conservatives in the United States are concerned about the legitimacy of the Court as well as a lot of liberals, so it doesn’t seem to me like you could just -- there’s an institution-saving path here that is just the careful moderate ground, that that makes no one happy. And I don’t think that that’s the --  I don’t think they should be thinking about what the Commission’s going to say when they make decisions to start with, but I don’t think that they can really predict with any -- they can’t really predict how people will react. And if they go the middle ground, nobody will be happy.


Adam Liptak:  Brandon, you have thoughts on any of this?


Brandon Moss:  Honestly, I haven’t followed it all that closely, but I’ve very much enjoyed listening to what my colleagues have said about it and put some thoughts together. But I have to say, for me, it begins and ends with, A, is there a reason to change it? If not, let’s not change it. And B, let’s make sure we’re not changing things because of politics. That’s not a reason to do things legitimately. And let’s not make sure we’re doing things that are going to affect the way judges, subliminally or otherwise, might make these decisions.


Adam Liptak:  Excellent points. The funny thing about it is that court expansion does not seem to be favored by the left side of the Court, at least where they’ve spoken publicly about it. Both Justice Ginsburg and Justice Breyer have spoken out against it. But court expansion could be done by statute. Most people think that term limits would have to be imposed by constitutional amendment, and yet, members of the Court seem open to that idea. Justice Breyer told me in an interview that he’s in favor of term limits because it would make his decision easier about whether and when to retire.


Okay. I think we’re come to the moment of truth where I know that in this large crowd of people who follow the Court, you’re going to have questions for this distinguished group of panelists. But unless I’m misreading my screen, no one has raised his or her hand yet. Am I right about that, tech folks? It’s now or never. We’ve come to that moment where you can have your moment to comment or address questions to the panelists. Anyone?


Ilya Shapiro:  It’s either because we’re exceedingly clear and have covered everything with thoroughness and concision or extremely opaque, and nobody can understand what we were talking about.


Adam Liptak:  Or maybe I’m just technologically stunted because it does seem that Timothy Harker has a question. Timothy? As I understand it, we will turn on your ability to speak.


Dean Reuter:  Timothy Harker, this is Dean Reuter. Your microphone should be live. You might need to turn up your volume on your computer, but if you have a question, go ahead and speak it now, please. He might have some technical difficulty there, Adam. While we’re waiting to see if we can straighten that out, I am curious -- you probably have other questions you want to ask, but I’m curious if anybody wants to say more about the possible interaction or lack of interaction between the Texas cases and the Dobbs cases as the Court considers them.


Adam Liptak:  I think Mary’s the obvious candidate for that. Mary, what do you think?


Mary Ziegler:  Well, I think there’s the should there be? Obviously, they deal with -- the Court has framed the S. B. 8 litigant, the Texas S. B. 8 litigation as being purely procedural and, therefore, not necessarily related to anything going on in Dobbs. Of course, I’m skeptical that you can draw that clear of a distinction in practical terms. I think, initially, from a predictive standpoint, I was thinking that the Court would allow the abortion providers, if not the DOJ, allow the abortion providers’ suit to proceed.


And that if there were anxieties within the Court about what would happen if Dobbs goes the way we all think it will, that then maybe there would be some political capital created by citing against Texas in the S. B. 8 litigation. Essentially, the Court could say, to Ilya’s point, that this is not -- they’re -- this is not a partisan thing, that if the Court is reversing Roe, it’s not because of the partisan affiliations of the presidents who nominated these justices. It’s rather because Roe was wrongly decided, etc. and that, when the shoe’s on the other --




Mary Ziegler:  Oh, sorry. Yeah, so -- getting a weird echo now. But yeah, I think that now that there’s this additional delay, many of us were expecting the S. B. 8 decisions today. If the Court sides with Texas, then, if we’re reading what that might signal for Dobbs, it would signal, I think, instead that the Court is, as Nicole was suggesting, less concerned about potential political ramifications of its decisions or even convinced that it can’t predict those ramifications and, therefore, may be more willing to overrule Roe more quickly and more clearly without fear of what would happen as a result.


Nicole Stelle Garnett:  So I’m not there, so I don’t really know what they’re thinking, but I actually think, based on the argument, which I did listen to the arguments — they were very long — this is for the Court, primarily, not about abortion. It’s about standing. It’s about a clever way that a clever person has figured out a way to keep something out of court. And so a lot of the questions focused on, well, what if you did this with guns, or what if you did this with another constitutional right, so I don’t know that the Court -- obviously, they know the underlying right at issue is abortion. But I think this is really a question about whether or not you can get pre-enforcement review when you’re not most likely to get post-enforcement review. So I think, to make it a case about abortion is to overstate the role that Dobbs is playing at all in their decision.


Adam Liptak:  And there was a sense also that it’s possible to be too clever by half, particularly in the face of a court that likes to be the last word. But I agree with you, Nicole, that that’s not a point about abortion. That’s a point about testing the patience of a powerful institution.


Nicole Stelle Garnett:  But again, balanced against a court that has been taking care over the last couple decades to sharpen and narrow the standing requirements and, so, there’s a real tension here. If you open this one up, then what about the next one down the road that -- when it’s not quite this clever by half. It’s only too clever by a quarter.


Adam Liptak:  Ilya, your thoughts on the interaction of these two cases, two sets of cases.


Ilya Shapiro:  They know that they can’t really decide them at the same time or sort of overdo on the Texas case and Dobbs won’t come down to the last week of June, so they want to presumably write a very -- as dry and technical an opinion as they can, both majority and dissent, on S. B. 8 to try to convince people that this is not about abortion. And ultimately, I think, whatever happens with the Texas case, it will be overshadowed by Dobbs because that’s the substantive merits thing, so we can argue, and we’ll have political discussions about the Texas case from whenever it’s decided until Dobbs is decided, but Dobbs will overtake that. And I agree with Mary that it’s unpredictable how the politics will work. Terry McAuliffe tried to -- at first, tried to run an abortion-heavy campaign against Glenn Youngkin in Virginia, and that didn’t seem to get him very far. And so, who knows, especially by the time the next presidential comes around. We’re talking two years from -- more than two years from next June. Who knows how the justices are thinking about that politics.


Adam Liptak:  Mary, what’s the answer to that? The conventional thinking for the longest time — I don’t know whether it has any basis in reality — was that it would be bad politics for Republicans to have 15 or 20 states make abortion a crime. Do you have a sense of whether that’s a correct description?


Mary Ziegler:  It’s hard to say. Right? So the first question is what is popular opinion nationally actually say? Right? And so, the pro-life argument is usually that polls are not accurate because if you ask people, “Do you like Roe or not?” people don’t mean the same thing by Roe. I think if you dig deeper into polling, it seems that people, to your earlier point, Adam, like the idea of -- they like the idea of a right to abortion. They like the idea of legal abortion. They like the idea of a ton of abortion restrictions and escalading restrictions as pregnancy continues, including bans later in pregnancy.


So if we had a sort of national popular politics, you’d expect there to be some kind of backlash. Of course, the states where we’re going to see all or most abortions banned are going to be states where that is not necessarily going to be an unpopular policy. And so, it’s unclear the extent to which we would expect to have a national level backlash based on what some states are doing. It’s especially unclear if people will care what’s going on in those states because, to some extent in abortion politics, things have already been happening in those states that have not been motivating people politically. And then, of course, to Ilya’s point, there’s a question, even if people care, are they -- is that going to be the issue at the top of the agenda because there may be other things that people are more motivated by.


I think, in terms of whether it’s bad for Republicans, one of the other arguments historically had been that once Roe was gone, it would be harder for Republicans to use abortion as a turnout issue. I think that argument is wrong because it presupposes that the point for people who are opposed to abortion or who belong to the right-to-life movement is Roe when, in fact, the point is right -- fetal rights are rights of unborn children, which, of course, overruling Roe will not accomplish. It’s a little bit harder for the Republican party, I would think, to explain how you get to that versus there’s a pretty clean -- like if the right people are on the Supreme Court with the right jurisprudential philosophy, they will reverse Roe, and -- so there’s an easier sort of process to getting what you want, if your goal is reversing Roe than to getting something like nationwide recognition of personhood, which is, I guess, in theory, possible through the Supreme Court as well.


But I think that would be the question of whether it’s the dog that caught the car or not, I think it remains to be seen. I think it still could be and, if you had to guess, more likely to be bad politics for the Republican party, but I don’t think it’s clean because I think it depends on the state. It depends on whatever political issues are salient, and it depends on the degree to which things just are general partisan divide and polarization would insulate Republicans from any kind of fallout, even if some voters don’t like what they’re saying about abortion. We have so much negative partisanship. We have such pretty amazing sorting, as Ilya said, that I don’t know if any decision on abortion would overcome those trends.


Adam Liptak:  We’ve got a question in the chat from Warren Belmar. It’s a good question. It’s puzzled me also. Why is it, and there are minor exceptions to this, but why is it in Texas that the law wasn’t challenged in what might be thought to be the ordinary way by violating it, getting sued, and taking it up to through state court system? I’m going to -- barring any better ideas, I’m going to throw this to Mary again.


Mary Ziegler:  Okay. Yeah, my understanding is that the -- there’s a fear by abortion providers in Texas about the kinds of damages they would have to pay because, of course, the floor -- it seems there’s some dispute with S. B. 8 as to whether the damages awarded, the 10K, is the floor or the ceiling or something else, but I think --


Adam Liptak:  Well, the statutory text says no less than 10,000 --


Mary Ziegler:  Exactly. And that -- my interpretation -- right. Some people I’ve talked to within the right-to-life movement in Texas say it was intended to be a ceiling, but that’s not what the statutory language actually says. And so, there’s a fear -- and that’s per abortion. Right? So there’s a fear of -- that abortion providers have in the state that if they do -- that they’ll essentially be sued out of existence. Right? So there’s been, even in -- that’s especially true because the state -- the law makes that -- makes you possibly liable for conduct that would be even occurring while the law is enjoined. So I think, largely, it’s fear.


There are, to Adam’s point, exceptions. Dr. Alan Braid wrote an op-ed in the Washington Post, announcing that he was violating the law and did actually attract several lawsuits. The interesting thing is there’s really been a wait-and-see posture. There haven’t been many doctors performing abortions in Texas, and there really haven’t been many people who are actually opposed to abortion suing Dr. Braid. The people suing Dr. Braid have been mostly disbarred lawyers from out of state who don’t seem to have a particular investment in the abortion issue at all and seem more invested in the possibility of $10,000 and up. And so, S. B. 8 has been weird in that sense in that, I think, once it was actually there, both movements felt more ambivalent about it than they had when it was just an idea. But I think, largely, it’s just about liability exposure, I think, has been the brief answer. I think --


Nicole Stelle Garnett:  I actually -- there’s also politics. I can’t believe that there couldn’t have been a fundraising campaign to support an abortion doctor who wanted to do this and challenge it, so I think there’s also -- there’s this -- the-sky-is-falling rhetoric is enabled by S. B. 8. Interesting, it actually plays in -- I think if you follow -- there’s been -- what? -- some people, maybe less of a reaction to S. B. 8 than people expected. And so, I think part of it is that the strategy has been let’s try to get this to the Court and -- while kicking and screaming about our rights being violated because there’s got to be people out there that could fund some doctor to pay the fees and get a lawsuit going. So that’s my sense is that politics are playing into it, and the strategy has been the strategy that is being pursued by the administration and the providers.


Adam Liptak:  Okay. I think we’ve exhausted the Check questions. We’ve exhausted the Raise Your Hand function. Dean, do you have any final questions or final thoughts?


Dean Reuter:  Sorry. I was unmuting myself there. No, I’m satisfied the way -- with the way things have gone. I want to thank our experts for what I thought was a fantastic discussion. Thank you very much. Thanks to our moderator as well, Adam Liptak, for joining us today. And of course, thanks to the audience for listening in and for your thoughtful questions. A reminder to the audience to check our website and monitor your emails for notices of upcoming events. But until that next event, we are adjoined, everyone. Thanks very much. Adam, do you have a final word?


Adam Liptak:  Just a thank you to the panelists for such a good, lively, interesting discussion. Thanks so much.


Nicole Stelle Garnett:  Thanks, Adam.


Mary Ziegler:  Thanks, Adam.


Ilya Shapiro:  Thanks, everyone.


Dean Reuter:  Thanks, all. Happy Thanksgiving, everyone.


Nicole Stelle Garnett:  Happy Thanksgiving, everyone.