A Seat at the Sitting - January 2022

The January Docket in 90 Minutes or Less

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Join us for the fourth episode of the Federalist Society's Supreme Court Show: A Seat at the Sitting.  Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting.  During the first two weeks of January, the Justices will hear eight oral arguments on cases including the First Amendment – both the speech and religion clauses, immigration, tax law, and Medicaid, and more.

This episode will also feature discussion of the OSHA vaccine mandate oral argument scheduled for January 7.    


  • Prof. Suzanna Sherry, Herman O. Loewenstein Chair in Law Emerita, Vanderbilt Law School 
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason Univeristy
  • Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
  • Sarah M. Harris, Partner, Williams & Connelly
  • Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society 


This event has transpired, but the footage is available above and on our YouTube page.


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:  Welcome to The Federalist Society's Teleforum Webinar, "A Seat at the Sitting." Today, our panel of experts will discuss the January 2022 sitting of the U.S. Supreme Court. I'm Dean Reuter, Senior Vice President, General Counsel of The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's program. Also, they're expressing their personal views, not necessarily the views of their employers or their affiliated institutions.


      As well, this program is being recorded, will likely be transcribed, and is subject to future broadcast. To give you a sense of the format, we're going to get opening remarks from our experts covering each of the cases we're discussing today, seven cases in all. We're covering them in the order they're going to be argued in the Court. After that, we'll have questions and answers among the panelists, but also questions from the floor from you, the viewers. So please use the raise hand function when we get to that portion of the program.


      Our speakers today include Professor Suzanna Sherry. She is the Herman O. Loewenstein Professor of Law Emerita at Vanderbilt Law School. She's also covering Cassirer for SCOTUSblog. We're also joined by Professor Eugene Volokh. He's the Gary T. Schwartz Distinguished Professor of Law at UCLA Law School, and the founder of the famed Volokh Conspiracy, and a specialist in First Amendment law.


We're joined as well by Professor Ilya Somin. He's a professor of law at the Antonin Scalia Law School. And, relevant to his remarks today and the cases he's covering, he's the author of a book on immigration law published in 2022 and entitled, Free to Move: Foot Migration, Voting and Political Freedom. It's available everywhere.


      But, first up, Sarah Harris is a partner at Williams & Connolly, a frequent Supreme Court litigator. And her next appearance before the Court is the oral argument sitting in February. So we're very pleased to welcome all four of our panelists today.


We look forward to a great discussion. We're going to bounce around a little bit between our panelists. So we're taking the cases in the order they're being argued. They're going to give us five to seven minutes or so on each case. But, as I mentioned, be thinking about your questions for when we get to that portion of the program. With that, Sarah Harris, the floor is yours.


Sarah M. Harris:  Well, thank you so much, Dean, and The Federalist Society for welcoming me back to this program, despite not being a professor for this one. I'm going to kick it off by discussing cases that you all may have been following, probably the most high-profile set of cases of the sitting, which is, of course, the cases about the vaccine mandate. So tomorrow is a really big day at the Supreme Court. They are hearing back-to-back expedited arguments in two sets of cases.


First of all is the OSHA rule. And the question there is whether the Supreme Court should stay the OSHA vaccine-or-test mandate, whereby every employer with more than 100 employees must either ensure that all of those employees have been vaccinated, or monitor compliance with weekly tests and mask requirements for unvaccinated employees.


If you don't comply and you're an employer who is subject to this, you face very, very big fines: $13,500 per violation, and up to $140,000 per willful or repeated violation, as well as the possibility of a federal court injunction forcing you to do all this stuff. So the emergency rule issued on November 5, with an effective date of January 10. And there are questions in that case about can OSHA do this? It's a pretty sweeping power. Can they do it?


The second case the Court's going to hear is a related requirement for healthcare workers, which is whether the Supreme Court should stay a federal rule mandating that all healthcare workers who participate in the Medicare or Medicaid programs must be vaccinated, absent religious objection. There, the government is claiming authority under the Medicare and Medicaid statutes, and saying that it has a lot of leeway, as a condition of participation in those programs, to require providers to comply with programs to prevent infectious diseases.


I will focus on the OSHA rule. I think that's gotten the brunt of people's attention, perhaps because it affects two-thirds of all private-sector workers and about 80 million people. To avoid burying the lede, let me say at the outset, the conventional wisdom right now among people who follow the Court, I think it's safe to say, is that the Court is likely to stay the OSHA rule on the grounds that indicate the rule exceeds OSHA's statutory authority and probably can't be salvaged.


But if I had to make an assessment of betting right now, if people betted on Supreme Court outcomes, there's sort of a consensus among people who talk about this that the Court will likely allow the healthcare-worker mandate to proceed. And, again, don't go out and bet. Don't go bet the house on these predictions. But that's just kind of the sense of folks right now, from following the briefing. There will be, I'm sure, a reassessment, depending on how the argument goes tomorrow. But there is sort of a feeling of the Court maybe wanting to split the baby on some of these cases, and also a sense that perhaps the Court will give the government more leeway when regulating things like the Medicare and Medicaid program.


So let me just talk a little more about how the OSHA rule got to the Supreme Court, because it's really unusual. With apologies to Winston Churchill, I think the lower court litigation can be summed up as follows, which is, "Never in the field of administrative law has so much litigation been generated by so many, in so few days." Immediately after OSHA announced its emergency rule in November, there was a huge rush of filings in every circuit, which, again, I think, reflects that this affects 80 million people. And, employers, by and large, thought that this would be just enormously burdensome and disruptive.


So the statute under which OSHA did this has a rule that one circuit will entertain all of the challenges, and that it will be picked by lottery. But, even before that lucky circuit got picked, the Fifth Circuit resolved one of the stay applications and concluded that the rule likely exceeded OSHA's authority, which meant that the rule was then, at that point, stayed. Then, the Sixth Circuit won the circuit lottery, rejected calls for initial rehearing en banc. So the full court wasn't going to hear this challenge.


That was a very close vote. Judge Sutton wrote the lead dissent from that procedural order and sort of tipped the hand of the Sixth Circuit panel deciding the stay of the OSHA mandate was unlikely to side with the Fifth Circuit, because Judge Sutton's dissent really just goes into the merits of the OSHA rule, and gives a lot of reasons in advance why he thought that it exceeded OSHA's authority, why there were constitutional problems with it, etc.


And then, low and behold, very shortly thereafter, the Sixth Circuit panel, with a dissent from Judge Larson, then vacated the Fifth Circuit's rule, let the OSHA mandate rule proceed. And then everyone went up to the Supreme Court really fast, asking for a stay there. So, in the normal course of the Supreme Court, when faced with that kind of stay request, ordinarily we'll ask for a briefing on the stay, and issue a one-line order either granting or denying the stay. Sometimes there will be short opinion. But even that's pretty unusual.


Instead, things got really interesting when things got to the Court. The Court took the unusual course, on December 22, of scheduling arguments on the stay motions for January 7, even before the state briefing was done. That's a big deal. I think you can probably surmise it might, in part, reflect some of the criticisms about the so-called shadow docket, whether or not that's the right term. I think the Court has been very sensitive about all of the focus on what it's doing on these stays. And scheduling arguments on a stay motion sure is a good way of shutting down some of that criticism.


So the Court picked two cases to hear, out of dozens of petitions. One of them is the National Federation of Independent Businesses application. And the other one is an application filed by Ohio and a total of 27 states. So, you might ask "Why those two? Why the two lucky winners of the Supreme Court?" I think the best reason is the Court probably wanted to avoid some tricky questions about nationwide injunctions. And by picking those two cases, the Court can effectively grant nationwide relief, if that's where it goes, because the private petitioners are trade groups in every state, and there's 27 states to kind of cover everything else.


So let me kind of quickly go through the merits of the arguments, just to give an overview of what's going on. The parties are focused on statutory and constitutional arguments, at this point. And the brunt of it is really an OSHA provision authorizing an emergency temporary standard if employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards and the emergency standard is necessary to protect employees from such danger.


So the petitioners' theme is sort of, "This is an unprecedented federal power grab," for two reasons. One is something called the major questions doctrine. And it kind of boils down to the idea that it's not plausible that Congress put the enormous elephant of giving OSHA sweeping control over the economy through a vaccine and testing mandate, through what is sort of a mousehole of a statutory provision. Justice Kavanaugh, I would just flag, has been very big on this doctrine since his time in the D.C. Circuit. So I can see the petitioners really wanting to appeal to him, and probably the Chief, in particular, with this one.


And the second line of argument is about the nondelegation doctrine, which is getting pretty hot right now. I think it's really enjoying a renaissance of interest among the justices. And the argument there is just if you were to read this statutory provision to give OHSA the authority to decide how to respond to the pandemic, that's giving an obscure agency without much healthcare expertise a vast power that the petitioners say only Congress should exercise.


The government, on the other hand, has the theme of "This rule is essential to save lives," that Congress gave OSHA really, really, broad power over all sorts of things that affect the workplace, including vaccine requirements, without regard for economic consequences. And the government kind of poo-poos the nondelegation concern, and says, "Look, OSHA has to decide that the standards are necessary to protect against dangers. They have to make findings about the level of harm, etc." That is certainly good enough, the government says, for the nondelegation doctrine.


So what to expect at argument? I think it's going to be a fun case to listen to, not only an important one. I think there's going to be a lot of hypotheticals to flesh out the boundaries of what authority OSHA may or may not have. For the petitioners, I think there will be lots of tweaks on what if OSHA had just done a mask mandate? What if they simply provided that employers must comply with their state or locality's COVID policies? What are the metes and bounds? Why is it the case that the vaccine-or-test requirement, in particular, goes too far? Can they, at least, do something?


And for the government, I think it will be, conversely, hypotheticals about what limiting principle there is on OSHA's ability to reach into choices beyond the workplace. So, for instance, if, let's say, there were evidence that people who are overweight are more likely to spread COVID or have more serious COVID, could OSHA, then, mandate a weight-loss program?


Prof. Eugene Volokh:  No.


Sarah M. Harris:  That's a hard argument. That's a hard hypo for someone. I think the other current is that the reality now is obviously CDC is recommending booster shots. And there are questions about what to do about Omicron. What is the best response to that? How effective are vaccines? If you just do the two vaccines against Omicron, what about future variants? So the government's probably going to get asked, "Isn't OSHA going to have to revise the rule substantially, in all events, to account for later developments?"


And just one more thing on the OSHA mandate before I get to the next case I’m going to cover, because I'm sure we can discuss consequences and questions later on. What's the Court going to resolve? Even though this is a state posture, I do think it's likely the Court's going to want to resolve the merits. It's sort of strange that they would have taken this case for expedited argument just to opine on the irreparable harm standard. So, I do think, whatever the Court says on the merits, it is very likely to define the contours of what OSHA can or cannot do down the road in this sort of field.


So the next case I'm covering is the next argument the Court will hear. It will be on Monday, January 10. But it's sort of the opposite end of the spectrum, because it is, instead of being a big-picture question about agency power, it's a gem of a statutory interpretation case, called Gallardo v. Marstiller. It's probably a ten out of ten on degree of difficulty, in terms of Supreme Court cases. It involves the Medicaid statute, which is no one's idea of clearly written or easy to follow, to such an extent that Justice Breyer recently joked in another Medicaid case this term by prefacing his question with the caveat, "Do I understand this correctly? The chances I understand this correctly are near zero."


The statutory dependencies in this case are just really long, and the provisions at issue have names like 1396A(a), 25(a)1. So what's the question in that case? It's kind of a practical one. It is, let's say, a Medicaid enrollee requires significant medical care. Medicaid pays for the care at the outset. Let's say it's, like, surgery, and the person also has future medical expenses. The person reaches a settlement with a third party who caused that person's injuries. And the settlement covers both past and future medical expenses.


The question in this case is, under the Medicaid Act, can the state recoup its expenses from the portion of the settlement attributable to future expenses, or is it restricted to the portion attributable to past medical expenses, which sounds very technical, but, actually, ends up being a huge amount of money for state Medicaid programs. That's why it's a really important case, I think, just in terms of the bottom line.


The Supreme Court's kind of cleared away some of the brush in this area of law by holding, in previous cases, that states cannot take money out of settlements, that is, representing other things that aren't medical expenses. So if the state has medical expenses to cover from Medicaid, you can't say "Take it out of the pot of money for pain and suffering or loss of consortium."


But this case is really the one that says what kind of medical expenses can the state dip into to get reimbursed. And it's a war of competing provisions. The petitioner points to one principle provision about the state's segregation rights over the Medicaid enrollee's recovery from third parties. It's written in the past tense. Petitioner says it clearly limits the state to the pool of settlement funds attributable only to past expenses.


And then Florida, on the other hand, points to another key provision about assignment to the state of the enrollee's right to recovery from third parties that doesn't have those similar limitations and seems much broader. So it's going to be, I think, a neat case for the Court, just as a straight-up statutory interpretation issue of which provision should dominate. How do you read the other contextual clues? The petitioner, supported by the United States -- and there may be some play in the Court. Florida has said that the United States has slipped position. So the government may get some heat on that.


And there's also some sort of fun subplots, if you're interested in nerdy, statutory interpretation, with respect to whether the government's claim for Chevron deference is going to get some backlash from the Court, which is, I think, increasingly skeptical of Chevron deference. So, no prediction on the outcome here. But this is the kind of case where I suspect the justices may be very unevenly engaged. Some of them love this kind of case. And, I think, others may have been exhausted by the vaccine mandate and content to let their brethren pick up the baton in questioning here. So, with that, I'll turn it over to Ilya for further along in [inaudible 00:17:06].


Prof. Ilya Somin:  Thank you. I just want to make sure everyone can hear me. Unless somebody speaks up that you cannot, I'm going to press on. My task today is to talk about two technical immigration law cases that will be argued later in January. And then the nature of these cases, which both address, basically, the same statutory issue, may seem highly technical, but it does also relate to some broader issues, with respect to both immigration law and its status under the Constitution, and, also, the issue of prolonged detention without trial.


      So the two cases are Johnson v. Arteaga-Martinez, which comes from the Third Circuit, and the second one is Garland v. Gonzalez, which comes from the Ninth Circuit. In the case of the Third Circuit decision, what is really being reviewed is not Johnson v. Arteaga-Martinez, itself, but rather an earlier case decided previously, three years ago, called Guerrero-Sanchez v. York County Prison, because the more recent Third Circuit decision simply relies on the 2018 decision. It's just a couple-sentence order which, as everybody agrees that the 2018 decision controls this one, so, somewhat confusingly, the real Third Circuit decision being reviewed is not the one that's officially being reviewed.


      And both of these decisions deal with detention under a statute called 8 U.S.C. § 1231, which states that the attorney general shall remove an alien from the United States within a period of 90 days when an alien is ordered removed for certain reasons, but also states that the alien who's ordered removed may be detained beyond a removal period in certain circumstances. It does not specifically say whether the people being detained in this way are entitled to a bond hearing to determine whether they should be released, as opposed to being detained, released on bond.


      But it does contemplate the possibility that they may be released. And, if they are released, then they're subject to certain terms of supervision, which is in another provision of 8 U.S.C. § 1231. So the question is whether people detained under this statute have the right to seek a bond hearing in which the government would have to prove that they're dangerous, or a threat to the community, or the like, before being able to continue to detain them. If they can't prove that, then they could be released on bond.


And both the Third Circuit and the Ninth Circuit concluded that there is, in fact, a right to this bond hearing, if the person has been detained much longer than the removal period. They concluded that this is 180 days. And you might ask, "Why are people detained longer than the time during which, in principle, they were supposed to be removed?" It's because many of the people detained actually have legal challenges to their removal, which they're pursuing. And the nature of the immigration court system is that often such challenges take many months, in some cases, even years to adjudicate.


So these people are pursuing legal rights that they have to challenge their detention and removal. But the resolution of those challenges can take a long time, because of the structure of the system. There are a number of technical issues also at stake in these cases, which I'm skipping over, partly for considerations of time, and partly because I don't want to bore people too much. For example, the Ninth Circuit is under a preliminary injunction. So there are some issues there, whether certain preliminary injunction standards have been met. But the core issue is whether the government can detain these people indefinitely, without giving them a bond hearing.


And both the Third Circuit and the Ninth Circuit said that the statute is sufficiently ambiguous on whether it requires such a bond hearing or not, that the canon of constitutional avoidance applies. What is the canon of constitutional avoidance? It is a long-standing rule of statutory interpretation which says that if a statute is ambiguous, then, if at all possible, courts should interpret it to avoid constitutional problems, if there is an interpretation which avoids them.


And, in a case called Zadvydas, in 2001, the Supreme Court ruled, correctly, I think, that indefinite detention for an alien, where it's not clear whether they actually will be removed or not, such indefinite detention, at the very least, raises serious constitutional problems under the due process clause of the Fifth Amendment, which, among other things, says that you cannot be detained without due process of law.


And, in this case, they're detaining people who haven't been convicted of anything, or at least are not being detained for the thing they were convicted for, and, also, often, the detention itself happens with very little due process of any kind. One of the notorious aspects of the immigration system is that people are detained, often with very little due process. There's not a right to counsel in these hearings. There's little consideration of evidence, and so on.


So the government is arguing that there is no constitutional problem here, and that the statute isn't ambiguous. And they're particularly relying on a decision called Jennings v. Rodriguez, decided in 2018 by the Supreme Court, which, among other things, reversed some previous Ninth Circuit decisions which had required a bond hearing, not under Section 1231, but under Sections 1225 and 1226 of the same part of the U.S. code. And they say, well, if there's no right to a bond hearing under those statutes, then it's clearly the case that there's no right under this one, either.


But the Third Circuit, I think, quite properly, said there's a big difference between 1225 and 1226, on the one hand, and 1231 on the other. And, specifically, 1225 and 26 both say that the government "shall detain the non-citizens in question." On the other hand, Section 1231 says merely that they may detain them, and also contemplates possible release. I think this is a major textual distinction between these sections, and, I think, good reason to say that Jennings does not apply to Section 1231. The Supreme Court can, of course, decide that it does apply. They can do whatever they want, almost. But at least there is this very crucial textual distinction.


And, as I said before, the normal rule for the constitutional avoidance canon is that if it is at all possible to come up with a plausible interpretation of an ambiguous statute that doesn't raise constitutional problems, courts are required to take that approach, as opposed to one where there are constitutional problems. The Supreme Court, including in the famous case of NFIB v. Sebelius, actually said that when there's two plausible interpretations, the courts even are supposed to choose the less plausible of the two, if that one avoids constitutional problems, so long as the less plausible one is at least somewhat, minimally, reasonably plausible.


Now, there obviously are people who criticize that canon. And I'm not going to try to get into that today, here. I will merely say that, so long as that canon remains in place, it should be applied to immigration law, no less than to any other area of law. And, if it is applied — the immigration law, in the same way — then I think the Third Circuit decision and the Ninth Circuit decision should be upheld. And this gets us to the general issues at stake in these cases, which go beyond the specific details.


One is the extent to which this will be another case where there could be a double standard between the way rules of constitutional law and statutory interpretation are applied everywhere else, and the way that they're applied to immigration law. There is a wide range of areas where the Supreme Court essentially held that normal constitutional constraints on government power do not apply: either do not apply at all, or do not apply with the same force to immigration restrictions. The Trump travel ban case from 2018 is the most famous recent decision like this. But there are others.


And, sadly, I think it's possible that this will be another case like that, where they'll say, essentially, the constitutional avoidance canon doesn't apply in this context to the same degree. Or, alternatively, maybe even the due process clause of the Fifth Amendment, which limits prolonged detention, maybe that doesn't apply in the same way. So I think there is a risk that that will happen, even though there is no textual or originalist basis for saying that immigration law is special in this way. For those who are interested, I published an article in the Atlantic going over these broader issues in greater detail, back in 2019. I'm happy to talk about that in questions, further. But I can't fully lay it out here.


The second broader issue here is the general problem — which is not solely limited to immigration law — of detention without conviction or without much due process. This exists in other aspects of the criminal justice system, like with pretrial detention. But with immigration law, it's even worse. And the people are detained for long periods of time, with very little due process. In the Guerrero-Sanchez case, which is the 2018 Third Circuit decision under review here, the person in question had been detained for 637 days without any kind of hearing before the Third Circuit decided the case.


And such prolonged detention with little or no due process, sadly, is not unusual in the immigration system. Similar problems exist in other contexts in the justice system. But the immigration system is, perhaps, the single most egregious offender. And I think this kind of prolonged detention with very little due process is something that should trouble people, regardless of how they feel about immigration law, generally, or criminal justice, generally, that it's very easy to seriously harm people in this way.


In the immigration detention system, data suggest that every year we detain hundreds or even thousands of actual U.S. citizens because there's so little due process that, often, the relevant government agencies don't figure out that the people are U.S. citizens until they've been in detention for hundreds of days, or, in some cases, until they've even been deported to Central America or elsewhere.


So what will the Court do? I don't know for sure. I think, however, there is a good likelihood they will overrule the Third Circuit and the Ninth Circuit. I think that for two reasons. One is, when the Ninth Circuit sends a case up to the Supreme Court, it's always, or very often, very likely they'll get overruled. The second is, sadly, I think many, if not all, of the conservative justices on the Supreme Court do accept the idea that there should be a double standard for immigration law, even though that double standard is not justified by the interpretive methodologies that they adopt in other cases.


But I'm not far from completely certain about this prediction and I very much hope I'm wrong. Please, Supreme Court, prove me wrong on this. And there is the chance that the Supreme Court has really taken these cases because they think there is a circuit split. There is a Sixth Circuit decision called Hamana v. Adducci, which, depending on how you interpret it, could be seen as interpreting section 1231(a)6 in a different way from the Third and the Ninth Circuit. But that decision only gives a very cursory treatment of the issue. And it's not easy to interpret.


So, more can be said, but, for now, I will leave off. And I look forward to possible questions. Thank you so much. And I turn it over to Eugene. I believe he's supposed to be next.


Prof. Eugene Volokh:  Me?


Dean Reuter:  Yeah. Professor Volokh, go right ahead.


Prof. Eugene Volokh:  Sounds good. Sorry, it sounded a little odd. There was something wrong with the sound. So I am going to be talking right now about the case Shurtleff v. City of Boston. And it's an interesting case. I can't say the Republic will stand or fall on this one, but it's an interesting issue. And it has to do with flags flying in front of Boston City Hall. And, as with many places, it has three flag poles. One of them flies the U.S. flag. And, I believe, underneath that may be the POW MIA flag. Another flies the flag of the state, Massachusetts. The third flies, unsurprisingly often, the city flag, because this is Boston City Hall.


      But, the city, on various occasions, has allowed the flying of other flags including many foreign national flags — which the city justifies as a means of kind of signaling the ethnic diversity, the diversity of backgrounds of Boston residents, although you can also imagine a city doing that just to signal a kind of amity with a foreign country — and, on occasion, has also flown some flags having to do with various organizations, kind of identity group organizations. You can think of an identity group, think about ideological. One that was the most talked about is the gay pride flag.


So Shurtleff wanted to fly the Christian flag. I didn't know there was a Christian flag. I knew there were Christian lots of things. But I don't think it's in the bible, the Christian flag. But there is such a thing, and he wanted to fly it. And the City said "No, because it's a religious flag and we don't want to fly it." And the question that ends up being relevant here is when does speech of third parties that's displayed on government property, and, in a sense, accepted by the government, when is it government speech? This is a question that has come up before, and it has ended up proving fairly thorny.


And the reason this is important is government's choices of its own speech may be viewpoint-based. In fact, it ought to be viewpoint-based. If the government is seeking to endorse something, then, presumably, it wants to endorse that thing and not something else. And even if it's seeking to endorse a bunch of things, it presumably wants to endorse those things that it likes, and not those things that it dislikes.


Of course, the classic case in this is Rust v. Sullivan, where the Court said that it's okay -- I'm oversimplifying here, but, basically, it's okay for the government to fund various speech about contraception, but not speech about abortion. Why? Because it's the government speaking. And the government is entitled to speak in favor of one thing and not another, even though, there, it was speaking through grantees, not through government employees.


On the other hand, if it isn't government speech, even if it's on government property, any restrictions on it would need to be viewpoint-neutral, even in a so-called limited public forum, even in a non-public forum. So the government can't say, "Oh, the airport is government property, and you can't wear racist T-shirts there, or you can't wear religious T-shirts there," because that would be impermissible viewpoint discrimination. The Court had earlier said that discrimination against religious speech is viewpoint-based.


So what has the Court said about this in recent years? Well, one thing it says is monuments in public parks are government speech. This happened in the Summum v. Pleasant Grove case. And the city there accepted a bunch of private monuments, including a Ten Commandments monument and various other monuments. So they were supplied by members of the public, but the Court said the city, by accepting them and displaying them, makes them their own speech. It may not have been created by the city. In fact, the idea for it may not have come from the city. But the city accepts it, endorses it, presents it as its own.


The Court also said, much more controversially, in a 5-4 vote, that license plate designs — not individual personalized 7-letter and digit codes that people select for themselves, but license plate designs — are government speech, even though, there, the state of Texas allowed more than 350 privately-submitted varieties. The Court said because they are government speech, the government can say, "Well, we're not going to authorize a Confederate flag design."


Since then, the Court has said this "likely marks the outer bounds of the government-speech doctrine." And the five-justice majority was then four liberals and Justice Thomas. So, now, with the death of Justice Ginsburg, it's possible that even if Justice Thomas goes along with the liberals in this case and thinks that this is similar to Walker, maybe Walker will get reversed. Or, in any event, a later case, Matal v. Tam, did say that Walker goes about as far as the Court is willing to go.


On the other hand, in Matal v. Tam, and in a follow-on case called Iancu v. Brunetti, the Court said trademark registrations, even though they're issued by the government and listed in the trademark register that's run by the government, and the like, those are not government speech. Those are private speech. And, there, the government can't discriminate based on viewpoint. So it can't, for example, ban remarks they view as racially offensive.


Like, for example, in that case that involved the Slants, which is an Asian-American band, trying to reclaim a term that had historically been, at times, used as a slur against Asians. The patent trademark office said, "No." The Court said, "Nope. This is private speech, albeit through a government benefits program. And the government has to be viewpoint neutral."


So the factors the Court has identified in Walker, and earlier, in some measure, in Summum, and then applied to Matal, talk about three things: the history of communicating government messages, whether that particular medium had been used this way; whether it's identified in the public mind with the government; and whether the state maintains direct control over what messages to allow, what's called "selective receptivity" is what the Court referred to it in Summum.


Interestingly, if you look at it in Walker, it's pretty uncertain which way this should cut. And that's, perhaps, one reason this was 5-4. Factor three is almost always present in these kinds of situations, because the government does have control over, after all, its own property. The question is should it have control, unlimited control, or should the control be limited?


The first two factors, I think, might distinguish matters in some measure. I don't think people, historically, have viewed trademarks as communicating government messages. They communicate private messages, even if the government buttresses them. Monuments in public parks, pretty clearly, have conveyed public messages. What about license plate designs? You know, that's a harder call.


By the way, one reason I put up this picture is I think this is a good picture for the city. Flagpoles in front of government buildings, historically, communicate government messages. Most all the time, two-thirds of them communicate government messages. Some of the time, three-thirds do. And this looks a lot more like a monument, even though it's not permanent, than, I think, certainly, like a trademark.


Now, one important factor in favor of the challengers is that there is this policy which talks about what are the reasons a request can be denied, talks about accommodating all applicants. And the argument is that that involves the government creating, by design, a limited public forum. Whatever it might have done, with regard to its policy, it did set up a policy that creates a limited public forum. So there's actually a big dispute in the briefs about exactly what the policy says.


You look at the top of the slide, one excerpt from the policy talks about guidelines for people requesting the use of City Hall flagpoles. What events are covered, though? Public events proposed to take place at the City Hall with the flagpoles. And then, on the left, there's another portion from the same policy, which talks about public events at certain properties. These locations include at the flagpoles.


So, the City is saying, "Well, look, what we really meant was we want to accommodate all applicants who want to have a demonstration at the flagpoles, but that doesn't mean -- and when we say the City Hall's flagpoles, we didn't mean it to mean the flagpoles themselves. So if you want to have pro-religious or pro-anything speech, or anti-anything speech by the flagpoles, absolutely, of course we need to allow that. In fact, that may be a traditional public forum. Certainly, at least, a designated public forum. But the flagpoles themselves, their content is not that.


Let me just close with another picture. So, one of these things is not like the other one. That's the upper left-hand corner. That is the Christian flag. Those, of course, familiar with flags, or familiar with the history of civilization, know that a lot of flags have Christian symbolism. Now, by the way, I haven't found any national flags that have what is sometimes called the Latin cross, the one which looks like a lower-case "T." But lots of them have crosses.


So, the one on the upper right-hand corner, similar color scheme, "T" on the side, perhaps, that's the Icelandic flag. The next one down in the middle of the left-hand column — I didn't deliberately use the Swiss flag, because everybody knows that one — this is the flag of Tonga. The next flag is the flag of Georgia, the country, not the state. The one on the lower left-hand corner, obviously, the flag of Israel, although, obviously, it also has the predominant symbol of Judaism. And the one in the lower right-hand corner is the flag of Pakistan, which, of course, also displays the predominant symbol of Islam.


Now, I'm not saying, by the way, that the Christian flag is necessarily just like all the others. You could say, "Well, those are national flags, and that one is not." But my guess is, if somebody sees the Christian flag flying up there, most people will say, "Oh, it's the flag of some country. I don’t know which one. But there are 200. Who knows?" A few people might say, "Oh, wait a minute. It's the Christian flag. Are we saying that Boston is endorsing Christianity?"


But then, what they could do is they just send an email to Boston, saying, "We're outraged you're endorsing Christianity." And then Boston could respond, at least if the Supreme Court says that it has to allow this flag, could respond saying, "Well, sorry, you know, we're not endorsing Christianity. This is just a limited public forum."


And the reason I bring up the other flags, that's exactly what will happen if somebody sees the Pakistani flag and says, "Wait a minute. Why is Boston endorsing Islam?" or sees the Georgian flag, "Why is Boston endorsing Christianity?" And Boston would respond saying, "You know, we're not endorsing that. We are showing amity to those countries, or support for Bostonians who come from those countries." So that's another reason why I think there's relatively little, substantively, at stake here. But, doctrinally, it proves to be an important and interesting question.


Dean Reuter:  Now we'll turn to Professor Suzanna Sherry. Eugene, I assume you were finished.


Prof. Eugene Volokh:  Yes, I'm sorry. I'm done.


Dean Reuter:  Okay, great. Professor Sherry.


Prof. Suzanne Sherry:  Thank you. And I need a slide. Can you see the slide? There, okay. Thank you. The beautiful impressionist painting that you're looking at is Rue St. Honoré, Afternoon Rain Effects. It was painted by Camille Pissarro in 1897. And it was purchased in 1900 by Paul Cassirer, a prominent German-Jewish art collector. And in 1939, it was expropriated by the Nazis from Paul's heir, Lily Cassirer, in exchange for permission for her to leave Germany. She did leave Germany with some of her family members, including her grandson Claude, and they both immigrated to the United States. Sadly, some of her other family members did not leave, and were murdered in the camps.


      The Cassirers and the post-war German government lost track of the painting. Everybody assumed it had either been lost or destroyed during the war, although Lily, and then, Claude, never stopped looking for it. But the painting had not been lost. Instead, it was sold to a California art dealer in 1951. And it spent the next 25 years in the United States, in California, New York, and Missouri. And then, in 1976, it was purchased by a Swiss national, Baron Hans Heinrich Von Thyssen-Bornemisza. And everybody calls him, "the Baron" in the lower court opinions and the court papers, because nobody knows how to pronounce it.


      And, in 1992, the Baron and the Kingdom of Spain, together, established a new museum in Madrid called the Thyssen-Bornemisza Collection, usually called, "TBC." And the Baron sold the Pissarro and most of the rest of his collection to TBC. In 1999, 60 years after it was stolen by the Nazis, Claude Cassirer found the painting listed in a TBC catalog. For the next six years, he tried to get it back using diplomatic channels and an official petition to Spain. But to no avail.


So, in 2005, he brought suit against Spain and the TBC in federal court in California, where he had lived for the previous 25 years, alleging various state common-law claims, like conversion and unlawful possession, and asking both for damages and to get the painting back. That was 2005. This case has been in litigation ever since. In the meantime, it's been up to the Ninth Circuit and back four times. Cert has been denied twice. The Kingdom of Spain was dismissed voluntarily, leaving only TBC as the defendant. And Claude died, so it is now being litigated by his heirs, including David Cassirer.


      The only question left after all of these trips to various courts is whether the claim should be governed by California law or by Spanish law. And they're different. Under California law, a thief can never take or pass on valid title. So the Cassirer family still owns the painting. The Nazis stole it. They didn't have valid title. They couldn't pass valid on to any of the subsequent purchasers, including TBC.


      Under Spanish law, however, a purchaser of stolen property can obtain title through, essentially, adverse possession, as long as the purchaser doesn't have actual knowledge that the property is stolen, and as long as it holds the property openly for at least six years. And the district court found, after a bench trial, that both those conditions were met. Although, it also found that, although TBC didn't actually know that it was stolen, both the Baron and TBC ignored some red flags about the provenance that they maybe should have investigated.


      But the Supreme Court isn't even deciding whether California or Spanish law applies. Instead, it's deciding how to decide that question. In other words, what choice of law doctrines should govern? Now, if Cassirer had found the painting in a private museum in Spain and sued the owner of that museum, or sued that museum in diversity jurisdiction, under Section 1332, the answer would have been very easy. Because in 1941, the Supreme Court held in Klaxon v. Stentor Manufacturing that a federal court has to apply the choice of law doctrines of the state in which it sits, in this case, California.


      So California choice of law doctrines would apply. In other words, a federal court has to apply the same choice of law doctrines that a state court would apply in that state. The wrinkle here is that TBC is an instrumentality of a foreign sovereign. Remember, it was established, in part, by Spain. So TBC is an instrumentality of a foreign sovereign, and the case, therefore, could not be brought under 1332 diversity jurisdiction, but, instead, had to be brought under the Foreign Sovereign Immunities Act, or the FSIA.


      The FSIA does two things that are relevant to this case. First of all, it strips immunity from sovereigns for suits that are brought for expropriation in violation of international law, which is why this case can go forward at all. And, second, it confers jurisdiction on federal courts for suits against foreign sovereigns where the sovereign is not immune, again, like this case. What it doesn't do is specify what choice of law doctrines should apply.


Now, four circuits have held that Klaxon answers the question. Four circuits would say that, just as California choice of law doctrines would apply in a diversity case, California choice of law doctrines would govern this FSIA case. But the Ninth Circuit is different. And it's alone. Ninth Circuit precedent applies federal common law choice of law doctrines to determine which law governs in an FSIA case. And both the district court and the court appeals held that those doctrines dictate applying Spanish law, not California law.


The common law choice of law doctrines, by the way, were crafted by the Ninth Circuit in earlier FSIA cases, because there's no other circumstance under which federal choice of law doctrines apply to state causes of action. So what it comes down to is the meaning of the Federal Sovereign Immunities Act.


Cassirer's main argument comes from the language which says that "when a foreign sovereign is not immune," and I'm now quoting, "the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances." And Cassirer's argument is because a private gallery that was in possession of this stolen art would be governed by California choice of law doctrines, then so should the TBC. 


TBC's main argument comes from a larger context of the FSIA, rather than its language, although they have a way to distinguish the language. What TBC argues is that when Congress enacted the FSIA it took foreign states out of diversity jurisdiction. Before the enactment of the FSIA, foreign states, to the extent that they could be sued at all, the suit was brought under diversity jurisdiction 1332. And when Congress enacted the FSIA, they, instead, took foreign states out of diversity jurisdiction and created a new jurisdictional statute, Section 1330.


And what TBC argues is that both the legislative history and the purpose of the statute make 1330, this new jurisdictional statute, more analogous to federal question jurisdiction under 1331, than to diversity jurisdiction under 1332. So federal law should govern, as it does, in federal question cases. The TBC also argues that applying federal choice of law doctrines accomplishes the FSIA's goal of creating uniform standards in suits against foreign sovereigns.


I think it's going to be either 9-0 or 8-1 in favor of the petitioner. That is, I think the Court will rule that the lower courts should have applied California choice of law doctrines. And the reasons I come to this conclusion -- there are three. First of all, they did not grant cert in the other four circuits. It's 4-1. Second, I think the textual argument is both stronger and more appealing than TBC's contextual argument.


And, finally, something that the briefs don't play up, but I think may play a pretty big role in it, is that the court has made very clear in prior cases that the cases in which federal common law should govern, rather than state law, are very few and far between. But there is one last wrinkle. In an abundance of caution, the district court applied both federal common law choice of law doctrines and California choice of law doctrines. And it concluded that both federal choice of law doctrines and California choice of law doctrines both mandated the application of Spanish law.


Now, the Ninth Circuit didn't review the holding under California law. That is, the Ninth Circuit did not review the district court's holding that California choice of law doctrines led to the application of Spanish law, because, following its own precedent, the Ninth Circuit said you don't even need to look at California choice of law doctrines. You look at federal choice of law doctrines. So the Supreme Court probably won't decide what California's choice of law doctrines demand. They'll remand it to the Ninth Circuit, either to apply California choice of law doctrines, or to review the district court's application of California choice of law doctrines.


And if I were representing the Cassirers, I would ask the Ninth Circuit to certify that question to the California Supreme Court. Because I suspect that the Ninth Circuit, having been reversed on its conclusion that federal choice of law doctrines apply and mandate the application of Spanish law, will simply reaffirm the same result by affirming the district court's finding that California choice of law doctrines also require the application of Spanish law.


So, I think that, ultimately, even if the Cassirers win in the Supreme Court, which I think they will, it will be a pyrrhic victory. And I'm happy to take questions, but, with that, I'm going to turn it back over to Eugene for the last case.


Prof. Eugene Volokh:  Thanks. So the last case is FEC v. Ted Cruz for Senate campaign. And let me pull up the proper slide deck for that. So FEC v. Ted Cruz for Senate has to do with a very specific feature of federal election campaign law. And that has to do with limits on repayment of personal loans given by the candidate to the campaign. The federal statute says that candidate loans to campaigns — and we're talking here about federal campaigns — cannot be repaid by the campaign, to the extent they exceed $250,000 from any contributions made to such candidates after the date of such election.


      The regulations elaborate on this, and then limit it, in certain measure. They say, "The campaign may repay up to $250,000 from any contributions, pre-election or post; may use pre-election funds to repay the portion of candidate loans that exceed 250, only if the repayment occurs within 20 days after the election; and must not repay the amount beyond the 250 from contributions made after the date of the election."


      So let's say I'm running for federal office. Laughable prospect, but let's say this were so. And I realize that I'm not getting as much money coming in as I'd like, but I want to get elected, so I loan my campaign $400,000. Then the election happens, and I want the money back, to the extent that there's money available. Well, I could get the entire $400,000 if it all comes from pre-election contributions.


But if some of it comes from post-election contributions, which is, I am told, not uncommon, especially if I win — and that may be influenced by the fact that people want to be on my good side — there might be some post-election contributions. And then if I want to use those, I can't really use it for the amount past the 250. So I can use it for the 250, but I can't use it for the remaining 150. So, maybe, if there's enough money before the election — let's say there's 150,000 in the campaign's coffers — I could say, "Oh, pay me back. Pay me back." I shouldn't say before the election, at the election date. "Pay me back from the pre-election contributions, the 150." And then the remaining 250, I might be able to get compensated from post-election contributions.


      So the accountants need to do their work. They'll get paid. And a candidate can often get reimbursed. But this is the limit on such reimbursements. And, unsurprisingly, as with any kinds of restrictions on money in election campaigns, it may, in some measure, diminish the election's ability to speak effectively. Because, in order to speak, you need money. Some people caricature the court's cases in this area, saying "Money is speech." That's not so. It's not that money is speech. Just like if somebody passed a law saying you can't donate money to your church and the court struck that down, it wouldn't strike it down because money is religion.


      Maybe you could imagine contributions to a church being treated as a religious practice. But even apart from that, in order for the church to function, it needs money. So restricting the spending of money on religion would be a restriction on religious practice. Restricting the spending of money to hire a lawyer would be a restriction on the right to counsel. Restricting spending money to educate your children would be a restriction on the right to a private education. Likewise, restricting the spending of money on campaigns is a restriction on campaigning and campaign-related speech.


      Now, how does this restriction operate? Well, if I know that I might never get back the $400,000 that I want to loan to my campaign, I might be reluctant to loan it. On one hand, of course, I want to get elected. On the other hand, I have kids; I have a wife; I have a home; I have a mortgage. I may not be able to afford to just give the $400,000 away altogether or give away the extra amount past the 250. So I might say, "Look, I'm willing to risk the 250, because that, at least, could be taken care of through post-election fundraising."


But anything beyond that, I'm going to be very reluctant to contribute to the campaign, or to loan to the campaign. Therefore, as a result, the campaign will have less money, and will be able to buy less speech. So this is a restriction, although not as grave as some, on the campaign's ability to speak. And it's not just the generally applicable, all that applies to everybody, like taxes. Tax law restricts my ability to speak, because I have less money to speak with. But it doesn't mean that I can refuse to pay my taxes.


But that law applies regardless of whether I'm a campaigner or a speaker or a candidate or whatever else. This law specifically targets loans to a campaign, which is to say, targets a particular kind of speaker. So here's what I think is the key question. It has to do with the risk of quid pro quo corruption, which is to say, the risk that money given to a candidate or an officeholder is essentially a kind of bribe.


And, by the way, there's a flip side risk, which is that it may be the result of a kind of extortion. So one way of thinking about it is something that rarely appears in campaign finance cases because it's so well settled. There are sharp limits on personal gifts to officeholders, as such, because the risk of quid pro quo corruption is seen as so high to allow sharp, sharp caps on personal gifts. My understanding for the Senate is — and I looked over at the rules recently — $100 is the most you can give to a Senator. But cash you can't give at all, or, at least, a Senator can't accept.


      There is, by the way, it turns out, a special exception or special waiver you can get for weddings. If you are a Senator and you're getting married, you can ask for a waiver, because, of course, of the custom of giving and getting gifts at weddings. But, in general, there is such a risk of quid pro quo corruption that even a total ban on cash contributions and a sharp limit on other gifts is considered proper.


      For campaign contributions, the Court in Buckley v. Vallejo upheld a limit — at that time, $1000 — because of the risk of quid pro quo corruption. The risk is seen as high, but those gifts are less sharply capped at $2900 for a primary, $2900 for a general. So it can be pretty high. A lot higher than for personal gifts. That turns out to be important.


      Interestingly, again, we rarely hear talk about it, but coordinated expenditures are treated the same way as campaign contributions. So if I call up the Cruz for Senate campaign, and I say, "You know, I'm thinking of putting out my own ads about why the Senator should get reelected. What do you think would be a good thing for me to stress?" that would be treated as essentially a form of contribution, because that kind of coordination and cooperation is seen, among other things, as particularly likely to cause the risk of corruption.


      Independent expenditures, the Court said, controversially, but it did say that in Buckley and then has reaffirmed it since, the risk of quid pro quo corruption is considerably lower. And, as a result, as a constitutional matter, they have to [inaudible 01:02:03]. And, of course, for a candidate, spending of their own money there, whatever you might think about the egalitarian dimension of that, or the in egalitarian, the risk of corruption is the lowest. I'm not going to bribe myself. And, as a result, they're uncapped. And loans of own money are also uncapped.


      So the question is how should we treat post-election contributions aimed at paying back candidates' loans? Now, it's clear they're not like independent expenditures. There's some risk of quid pro quo corruption seen with regard to them. But the question is, should they be treated more like campaign contributions, where you can give them up to the 5800 cap, or maybe 2900 cap, at that point, because it's going to be, with regard to the general campaign -- it's complicated. But, in any case, that level of cap.


Or should they be treated as personal gifts, to the point that they're completely forbidden? Because, the theory goes, once the money is given to pay back a loan, that's like money going into the candidate's own pocket. If I give money to a candidate for a future election, then that's going to be money that the candidate will find very useful, but will use it to speak in the future. Whereas, if I give money to a campaign to pay back the loans, that's money that's kind of like a gift. It's kind of like my sending the guy a check, because that money is going to be directly beneficial to his personal finances, not just his political fortunes and ability to engage in political speech.


      So that's the question. The three-judge court struck that down for a variety of reasons, one of which it says this concern about corruption is hypothetical. There isn't a lot of evidence of this, even though quite a few states don't have similar limits, you'd think there would be evidence available from those states. But there really isn't any. And whatever mentions there are are brief and anecdotal and not really on point.


So then one question, of course, is the perennial one of to what extent can these kinds of restrictions be justified, based on plausible informed speculation? How much of that needs actual proof? Another point that the panel points out is they say, "Well, it's just not well-tailored to it." Because, after all, the 250,000 cap, that could be plenty corrupting, and yet the law allows that. What's the point? Why does that somehow become corrupting past the 250, but not below the 250? Maybe what's going on is they really are trying to go after just high levels of spending on campaigns, and that is not, itself, seen as a sufficient interest to justify restrictions.


      So that's the question that the Court's going to have to deal with. It's possible that the Court will use this as an occasion for broader pronouncements that will go beyond this pretty narrow issue. But it's also possible to resolve it, just on these particular terms. Probably an important point for a considerable number of candidates. Not a lot of candidates do this. But a considerable number do. But, again, this is not, by itself, Buckley or even Citizens United. It deals with a considerably narrower question. So, with that, I close.


Dean Reuter:  Terrific. Thank you very much, Professor Volokh. Thanks to our other panelists, as well. A reminder to our audience: if you have a question, we're open for questions now. Try and use the raise hand function on our program here, if you could. I see that we have one question pending. But before we get to that, let me ask a quick question, if I could, of Sarah Harris. And that is a question on timing on the OSHA case, in particular. Sarah, you mentioned this case has been fast-tracked. It's sort of been wedged into the argument calendar. Do you have any predictions or any insights you can share on when we might expect a decision?


Sarah M. Harris:  So, I would say weeks, if not days. The reason is the OSHA rule is currently slated to take effect January 10 or so. Now, OSHA has said it's going to exercise enforcement discretion, at least until January 10, and maybe through February, for some other requirements. But I think the whole reason the Court scheduled argument for, like, two weeks from the state applications was they are planning to get opinions out the door very, very fast.


Dean Reuter:  Good. Okay. And just one quick factual question also, for Professor Somin. And that is, as these people are being held indefinitely, are they free to return to their home countries, or not? You're muted, Ilya. You need to come off mute.


Prof. Ilya Somin:  Can you hear me now?


Dean Reuter:  Yeah, I can hear you now. Go ahead.


Prof. Ilya Somin:  So, it's a good question. What I would say is two things. One is, in some cases, it's not entirely clear that they are free, given that travel arrangements might be difficult or impossible to make, particularly during the COVID pandemic. The second is what these people are doing is, in fact, contesting the order of deportation. And if they leave the U.S. for their home countries, their legal status would change, and contesting the order would no longer be possible in the same way.


And, in other contexts, it would clearly be at least serious constitutional problems if we say, "Well, you are subject to indefinite detention unless you give up one of your other legal rights, including constitutional rights." So I think the same point should apply here.


Dean Reuter:  Yeah, interesting. We've got a couple of questions from the audience. But before we go there, I want to ask our panelists if they have any questions or comments: questions of their fellow panelists, or comments on cases they didn't cover?


Prof. Suzanne Sherry:  Actually, I have a question or a comment for Eugene about the Shurtleff case. I know that the lower court case turned on the question of whether it's government speech. But I wonder whether you might agree with me that it might end up either turning on, or at least heavily implicating the doctrines related to government treatment of religion, rather than just whether this is government speech.


That is, I see this case as, possibly, of a piece with Carson v. Macon from the December sitting, which was asking whether Maine was required to fund sectarian schools when it funded non-sectarian schools for districts that didn't have a high school. And I think, in both those cases, the Court is likely to find that the government has to treat religion the same as it treats everybody else. That is, it has to fund the sectarian schools. It has to fly the Christian flag, and so on.


And so, sort of the bottom there is that after those two cases, the government must not exclude religious entities from government benefits, including funding. Now, at the moment, that sort of mirrors what happens with government burdens. Under Employment Discrimination v. Smith, the government may, but need not, exempt religious entities from government burdens.


But if the Court overrules Smith — and I think they're going to sometime in the next couple of years — then what we'll have is a situation where, simultaneously, the government must exempt religious entities from government burdens, and may not exempt, may not exclude, must not exclude religious entities from government benefits. What do you think of that, my prediction and the scheme?


Prof. Eugene Volokh:  So, I think the way the Court is going to be dealing with various free exercise clause questions, and, relatedly, what it has done with regard to Establishment Clause is a very interesting and important question, much more important than the question in Shurtleff itself. And we could have a discussion about that. I don't think this is, itself, clearly implicated in Shurtleff. Because the Court has already made clear that when it comes to private speech, that, just as on government property, even if it uses government funds, even if it's funded by the government under a limited public forum, the government can't discriminate against religious speech. That was the Rosenberger case back in 1995.


      And that's a very important holding. And that's why, if this is viewed as a limited public forum, the exclusion of religious flags would be seen as unconstitutional. But that principle has never applied to government's own speech. Certainly, the Court used to say that the government must exclude religious speech from its own speech. That's the endorsement test. That's been sharply cut back on, with the Bladensburg Cross case, just a couple of years ago, American Humanist Association v. American Legion.


      But, still, there's some element of that, that the government probably may not permanently fly a flag outside a city hall saying, "Christianity is the religion of Massachusetts." It may be that, even after American Humanist Association, that flag would violate the establishment clause. But even if it doesn't — and one could plausibly argue that government speech shouldn't be seen as violating the establishment clause — at the very least, the government doesn't have to do that, doesn't have to allow people to do that if this is government speech. So that's why the real question is, is it or isn't it government speech?


      If it is government speech, then the government can discriminate based on viewpoint, including its religious viewpoints, or against other viewpoints. On the other hand, if it is speech in a limited public forum, even if it's supported for, paid for, the property is provided by the government, then we already know from Rosenberger that the government can't restrict religious speech. I oversimplified here, but basically that. So that's why I do think that's the core issue. Although you're quite right, all these interesting and important free access and establishment clause issues are very much in play in the Court now, and very important.


If I can just return with one comment on your presentation. It is a reminder of what I have recently recognized is the lawyer's true superpower: this whole debate about choice of law rules and jurisdiction and all of that. And that superpower is the power to turn every legal question into a question about procedure. So, hard to see a better illustration of that than the case you were discussing.


Dean Reuter:  Very good. Any other questions, comments from our panelists, directed toward their fellow panelists? Okay. Again, if you're in the audience, choose the raise hand function. We've got a couple of questions pending. I'm going to go Carlos BTC through the raise hand function if Bram, our technician, can do that. Carlos, go ahead. And make it a question please, if you would. Go right ahead.


Carlos BTC:  Yeah, a very short question. On the FEC case, I was wondering if there was any consideration to the fact that you might not want a series, a set of transactions, of related parties' transactions continuing on that might survive an election. Instead of the $250,000, it seems like a large or an arbitrary bar. But I guess, at some point, you'd want to settle whatever happened in an election and move on to the next one, in some sense, because these are various problematic transactions. Or would that never come up? Thank you.


Prof. Eugene Volokh:  Well, you could say, in fact, there is some argument that I see in the briefing -- at least the logical implication is that, look, once you are elected, now the risk of corruption is so great, because now you're actually in office, even though, of course, you may have been an incumbent before. But now you're actually in office. And you might be especially in a position to pay back, through your government actions, some of these contributions.


And, on top of that, anything that people give you after the election obviously can't be their way of joining together with others, in order to fund speech about the election, because the election is now done. So the free speech interests are particularly reduced. So you could imagine something along those lines. The thing is that this restriction is very ill-tailored to just the concern about, "The election is done now. Now everything you're doing can't be about promoting future speech."


Because, after all, you're perfectly free to donate money to retire debt of the campaign to other creditors. And campaigns often end up with having substantial debts to various service providers. So people are free to donate that money. And people are free to donate up to $250,000 that's going to go back to the candidate. So this is one of the ways in which narrow-tailoring often operates: the narrow tailoring requirement of strict scrutiny, or so-called "exacting scrutiny" applied to many election campaign cases.


      You say, "Look, if your concern really seems to be about something, then it's got to be a pretty close fit to that thing." So if your concern is about the danger of any contributions after the election date, it's got to look like you really are trying to do a lot about those contributions. And if all you're doing is about this one particular kind of contribution, then, in that case, you need to explain why that kind of contribution is special.


And, of course, the government does. The government does say that the worry is that money is going to go into the candidate's own pockets. But that's going to be the argument that the Court's going to focus on, and not a broader argument, which doesn't seem to be well-tailored to the broad permission of contributions after the election for retiring all sorts of other debt, or, for that matter, contributions that will end up funding future campaigns.


Dean Reuter:  Very good. Professor Volokh, a lot of what I understand about campaign law is focused around the wealth of the individual candidate, and whether that's a factor or not. How does that play in here, where it seems to me that the truck driver from New Jersey probably couldn't dump $250,000 of his own money into this? A billionaire from California doesn't need his $250,000 back. This might be a rule that affects people in the middle. Is that a factor at all, in the Court's analysis of it?


Prof. Eugene Volokh:  Well, so, one of the things that the challengers, that is, the Cruz for Senate campaign is saying is "Look, this was enacted as part of this millionaires' amendment, back almost 20 years ago now. And it really isn't about corruption. It's about the supposed unfairness of people being able to contribute their own money, supply their own money. And the Court has already rejected that as a rationale for restricting contributions writ large. And, therefore, you should also reject this, "rather than going into this quid pro quo corruption thing, which doesn't seem to have been the Congress's primary concern."


      So, it may be that this was all about trying to limit the ability of the wealthy to use their own money, which the Court has said is not a permissible basis. But I have to say, I'm not terribly persuaded by those kinds of critiques. I mean, I do think the quid pro quo corruption concern has considerable merit here, because it is true that if I give money to a candidate, or an elected official, especially -- one, by the way, criticism of this rule is it applies even to people who lose, so who aren't in a position to pay back the contributions with government action, because they aren't going to be in the government.


      But, setting that aside, if I'm giving money to somebody who's been elected, and it's being used to pay back a loan to him, that really is money into his own pocket. And it's true, that's not going to be much of an issue for some candidates, because it's hard to bribe a billionaire with $5900. You'd hope that, at that point, even if they're bribable, it would take more to buy them than 5800 bucks, let's say.


And it's impossible to bribe the truck driver, because he doesn't have this loan that needs to be paid back. But it is possible to bribe people of substantial, but not billionaire-level means this way. And there's a plausible question of whether we want to try to deal with that kind of bribery or that kind of implicit bribery, even if it's not the whole world of possible bribery.


      Again, one reservation one might have about that rationale is that the 250,000 seems to be providing such opportunity for quid pro quo corruption for those people who are corruptible that it's hard to see why the next 150,000 would make much of a difference.


Dean Reuter:  Yeah, I think Professor Somin has a question for you, Professor Volokh.


Prof. Ilya Somin:  This is about the Shurtleff case. And I apologize if you covered this, and I somehow missed it or misunderstood it. But I wonder if you could clarify what the nature of Boston's policy is. Is it that just, in general, they've always allowed any flag anybody might want to put up on that third flagpole, but then suddenly said, "Well, we don't like the Christian flag"? Or do they have some kind of general policy that, "We only allow messages that comport with -- they're within a certain range?"


 So, for instance, if somebody said, "I want to put up a Confederate flag or a Nazi flag," or whatever, that they would say, "Well, no, that is not within the acceptable range for this government-controlled situation." Because it seemed to me there's a big difference between, "We have a limited range of things that we allow," like in the Sons of the Confederate Veterans case where they allow a lot of personalized license plates, but not a pro-Confederate one, and perhaps not some others the state disapproves of, versus "We've always allowed anybody to post anything. But now, suddenly, we reject the Christian flag," even though the Confederates, the Nazis, and so on, would have been just fine.


Prof. Eugene Volokh:  So, it's complicated. And I think it's complicated, in part, because, as with much that is done by organizations in their proprietary role, things sort of happen by practice, more than overt rule. Of course, there is this dispute about whether this policy that accepts all applicants, whether it applies to the flagpole or not, that is a written policy. But if you say, "No, that policy only applies to demonstrations at the flagpoles," which is to say, the concrete near the flagpoles, well, then what is the rule as to the flagpoles? The city says, "We generally fly national flags to represent the city's diverse population, and fly non-city flags in association with publicly-recognized days of observance.


      And then they say, "We occasionally raise in place of its own flag, another banner honoring some day of observance, such as Veteran's Day, or a public institution or a moment of civic pride involving, say, some football team, and the like. But what I think they're really getting at is, "We fly flags that we think are going to build good will, of a particular kind that we like, and we don't fly other flags." It's true, I think, at the time they rejected the so-called Christian flag, I don't think they had rejected any other before. But their answer is because everybody else kind of understood what was going on.


And I think that was pretty much what happened in Summum, as well -- that Summum didn't have a fixed policy: accept these monuments, and don't accept those. It said, "Okay, look, this monument, the Ten Commandments, we like. This other monument, we don't like." Or, I'm sorry, "The other monument, we like. We like them until we get to Summum's. We don't like that one. But we, as the government, get to choose. We don't have to come up with a rule of what we're going to say. We get to choose what we say."


So, likewise, just to give an example, I don't believe that the North Korean flag had ever flown from the City of Boston flagpole, but probably because nobody asked. If somebody had asked, I think they'd probably say, "North Korea's different. They just seem to be so -- at least the North Korean government. We love the people. But the government is so different that we're not willing to go along with it. And we might not have gone along with the flag of the apartheid South African regime, or the Nazi flag when the Nazis were in charge of Germany."


So I think their view is, it is government speech, and we're entitled to pick and choose, without having to come up with a really sharp, crisp rule. In a sense, you might think of it the way — just the example we know, because we both teach at public universities of government speech — the university may organize a conference, a speaker series, invite speakers. Now, there are, I think, important, kind of, diversity of opinion constraints on that: tolerance, academic freedom, and the like.


But, as a First Amendment matter, the university gets to decide which speakers to invite and which panels to set up and who represents which views and which panel, without having to have a crisp rule about that, because that is viewed as government speech. Whereas, if they were viewed as private speech, then any restrictions must be viewpoint-neutral, and probably would have to be relatively crisply defined.


Dean Reuter:  We've got another audience question. We're going to go to Robert Fitzpatrick, if we could. Robert Fitzpatrick, you're on. You might have to unmute your own system, Robert Fitzpatrick. We can't hear you. Robert, your sound is really breaking up, so we can't really make out what you're saying. So I'm afraid we're going to have to move on.


      Let me ask a question then, if I could, of Professor Sherry. And that is just a quick factual question that might not be part of the record, it might. And that is the value of the painting at issue here. I'm sure there's extraordinary sentimental value, but what are we talking about, in terms of the value of the painting? And is this case going to have implications for other stolen -- I don't want to call it "Nazi art," but other art stolen by the Nazi regime?


Prof. Suzanne Sherry:  Well, in terms of the value of the painting, I actually don't know. It may be in the documents somewhere, but I didn't find it. Lily was actually paid the equivalent of about $360 for it in 1939. But, technically, she sold it. The Nazis insisted that she sell it to a German art dealer. But that was put in an account that she could not access, so she never did get her $360. She did get some money from the post-war German government. They set up a process for compensation, and she got some money, not an extraordinary amount, in the hundreds of thousands, I think. I don't know how much the painting is worth.


In terms of implications for other cases, yes, it will have implications. I guess, either in the Ninth Circuit or in the other four, and the choice of law, there will either be federal choice of law or state choice of law that will apply. Of course, you can't always figure out what that's going to do, whether it actually makes a difference. One of the arguments of TBC in this case is it doesn't make a difference whether you apply federal choice of law or California choice of law. Either way, Spain wins. And, in some circumstances, that could well be true, depending on the state choice of law doctrines, which, of course, differ from state to state.


      Where I think it might actually have a little bit more purchase, that is, I think this case is going to tell us a little bit more about how the Supreme Court feels about federal common law, in general. And there is a case coming up. I forget the name of it, but I think it's a question about -- let me see if I can find it very quickly. Yes, a case coming up this term called Egbert v. Boule. And that has to do with whether there is a Bivens cause of action for certain kinds of First Amendment violations. And that's federal common law. So if the Court's opinion in this case comes down really hard on there is no federal common law, except in very specific circumstances, that may tell us something about that case.


Sarah M. Harris:  Well thanks. I'm actually arguing that case, so, I also, just in case you're wondering, it's $30 to $40 million for the painting. So quite a bit [inaudible 01:28:11]. Far more that she received at any point in time, to put it mildly.


Dean Reuter:  Right. No, that's an important point. Thank you. We've got two minutes left. One quick question that I'd ask of anybody that cares to weigh in here, and that maybe cuts across sittings of the Court. A couple of you have mentioned precedential cases that might or might not be overturned by the Court in deciding the cases you described. I think, Eugene, you mentioned the Walker case, the license plate case that might or might not be revisited. How does that, or does it at all, implicate -- or Dobbs, perhaps. In other words, are some justices going to be more or less anxious to overrule any other case at all, if they're more or less anxious to overrule Roe v. Wade? Does the Court see things that way? Is there that sort of consideration at play?


Prof. Eugene Volokh:  Hard to tell, in the abstract. All justices — including, even, Justice Thomas, who's the one who is least committed to stare decisis — all justices have to accept some things as precedent, because otherwise you can't get the job done, if everything is constantly up for grabs. One thinks that all lawyers have to, then, come up, file all these cert petitions, constantly asking for revisiting a decision that the Court had rendered.


      On the other hand, I think virtually no justice says, "I will never reverse a precedent," especially in the constitutional context, where they're kind of the only game in town for reversing precedent, short of a constitutional amendment. So, I do think there is a tendency, especially if some justices are, at the very moment, hammering away on how important stare decisis is in case A, it becomes harder for them, in the very same term, while case A is pending, to say, "Oh, but we will reverse this precedent in case B."


So you could imagine that. I don't think it quite goes the other way. I don't think it says somebody who's willing to reverse precedent in case A, would then feel obligated to have to reverse precedent in case B, because, among other things, cases are often so different that you could say, "Yeah, I'm not committed, always, to stare decisis, but it's a good presumption. And it's been rebutted in case A, but not in case B." But it's hard to talk about that in the abstract, just as I think it's hard to talk about stare decisis in the abstract.


Dean Reuter:  Anybody else on this question?


Prof. Ilya Somin:  Yeah, so my general take on this is that neither the conservative nor the liberal justices are really willing to maintain precedents they think are; A, badly run, and; B, that there will not be dire consequences from overruling those cases, that is, dire upsetting of reliance interests and the like. So, I think, certainly, stare decisis does weigh on them all, in cases where they just think it's not badly wrong, or the case just isn't that important.


But in the sort of big, high-profile cases, I think a lot of the shadow-boxing about precedent is actually a debate about whether the precedent was right or not. In some cases, perhaps, it's a debate about, if it was wrong, how badly wrong it was. But I think it's relatively rare for a justice to say, "We should maintain a precedent, even though I think it's badly wrong. And it wouldn't cause any great harm to get rid of it." And I think, actually, justices should be willing to overrule precedents, when those two points apply.


      So I think there is some desire on the part of justices to be consistent in the way they overturn precedents or choose not to do so. But I also think these factors of how wrong it is, and how big of a negative effect it would have if it got overturned, I think, in many ways, these are the real factors in play, even though the Court's official test for overruling precedent also includes some other stuff. That only partly takes account of these two big issues.


Dean Reuter:  Sarah Harris, we're over time, but I'm going to give you the final word.


Sarah M. Harris:  Thanks. Just sort of two quick points. One, I think the Court is, whether formally or not, conscious of how many cases it takes in a given term to actually overrule particular precedents. It is outwardly the question presented. And I think the Court is kind of careful about how many cases, especially in a term with Dobbs, it's going to take to overrule other big precedents. And that may play in the fate of the McGirt petitions that are up now. Certainly in the case we talked about, Egbert, the Court had an opportunity to grant on the question of whether to overturn Bivens. It didn't grant that one.


      But, second of all, I think the real play in the joint is, whenever the Court encounters precedents like Walker, that you may or may not think might come out differently in the current Court, the Court has a lot of options beyond actually overruling them. It can certainly undercut those precedents. And it can certainly reframe those precedents in ways that accomplish the practical result of making the whole thing a little different or a little less forceful than, I think, what one of them might have thought immediately after one of those decisions, without actually having to overturn it. And I think that happens all the time. That's just part of interpreting precedents.


Dean Reuter:  Very good. Well, my thanks to all of our panelists. We certainly appreciate your time and your effort in getting up to speed. I want to thank the audience, as well, and urge you, with regard to Professor Ilya Somin, buy the book on immigration. With regard to Professor Suzanna Sherry, check out her followings on SCOTUSblog. With regard to Sarah Harris, follow her argument next month. And, of course, with regard to Professor Volokh, check out the Volokh Conspiracy, if you haven't already done that.


And, to the audience, thank you for joining in. Thanks for your questions. Look for the Federalist Society website in your emails for future events. But, until that next event, we are adjourned. Thank you very much, everyone.