Join us for the second 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 November, the Justices will hear ten oral arguments on cases including the Second Amendment, free speech, abortion, and religious freedom.
The case names, issues, and dates of argument are listed below:
- Whole Women's Health v. Jackson – Abortion – November 1
- United States v. Texas (2021) - Abortion, Federal Jurisdiction - November 1
- Houston Community College Sys. v. Wilson – First Amendment – November 2
- Badgerow v. Walters – Arbitration – November 2
- New York State Rifle & Pistol Assn. v. Bruen – Second Amendment – November 3
- FBI v. Fazaga – National Security – November 8
- Unicolors, Inc. v. H&M – Intellectual Property – November 8
- United States v. Vaello Madero – Equal Protection challenge to Social Security – November 9
- Ramirez v. Collier – Religious Freedom – November 9
- Austin v. Reagan National Advertising - First Amendment – November 10
- Hon. Beth A. Williams, Former Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice
- David H. Thompson, Managing Partner, Cooper & Kirk PLLC
- Andrew J. Pincus, Partner, Mayer Brown
- Jennifer Lichter, Deputy General Counsel, Catholic University of America
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.
Dean Reuter: Welcome to The Federalist Society Practice Group show, "A Seat at the Sitting: The November Docket in 90 Minutes or Less." I’m Dean Reuter, Senior Vice President and General Counsel of The Federalist Society.
This is our second such show, now focusing on the cases to be argued in the November sitting. As always, please note that all expressions of opinion are those of the expert on today's program. Also, this program is being recorded for use as a podcast or other rebroadcast by The Federalist Society.
I'm joined today by four experts for today's program, who will give opening remarks of about 10 to 15 minutes each. Each expert will address two or more cases. And when we get to the end of that portion, we're going to use the raise hands feature in Zoom, at the end, to ask questions.
We're going to hear first from Beth Williams, who's going to cover the two speech cases. She will be followed by David Thompson, who's going to cover, principally, the gun case, but also, sketch out the national security case, which is on the November docket. We'll be following David with Jenny Lichter, who is going to cover the Ramirez religious liberties case, and the much-talked-about Texas case. And we'll close our opening remarks as we welcome Supreme Court litigator Andy Pincus to weigh in on the Texas case and the gun case.
But first, a little more detail on our speakers. Beth Williams served most recently as Assistant Attorney General for the Office of Legal Policy in the Department of Justice, where she served as the primary policy advisor to the Attorney General, and the Deputy Attorney General, and the Chief Regulatory Officer for the Department of Justice. She's a litigation and appellate partner at a national law firm, a graduate of Harvard College and Harvard Law School. She'll be speaking first, but I'm going to introduce the other panelists, and then we'll just roll through these opining remarks.
David Thompson will be joining us second. He's the Managing Partner at Cooper & Kirk, where he has been since the founding of that firm. And he has scored billions of dollars' worth of victories for Cooper & Kirk clients. He's also ⸺ perhaps more importantly for our purposes ⸺ successfully challenged numerous laws on Second Amendment grounds. He also happens to be a graduate of Harvard College and Harvard Law School.
He'll be followed by Jennie Lichter, who most recently served in the White House as a Deputy Assistant to the President, and Deputy Director of the White House Domestic Policy Council. Prior to her White House service, she was in the Office of Legal Policy at the Department of Justice. She was also in-house counsel for the Archdiocese of Washington, and served in big law at Jones-Day. Prior to all of that, she clerked for Judges Sentelle and Colloton on the D.C. Circuit, and the Eighth Circuit, respectively.
As I mentioned, we'll close with Andy Pincus, partner at Mayer Brown. His practice focuses on Supreme Court and appellate litigation. He's argued no fewer than 29 cases in the Supreme Court, and served as a former Assistant to the Solicitor General of the U.S. Department of Justice, and is also co-director of the Yale Law School's Supreme Court Advocacy Clinic. Also, in the past, he served as General Counsel at the U.S. Department of Commerce. He's a graduate of Yale College and Columbia Law School, and clerked for the Honorable Harold Greene on the District Court for the District of Columbia.
With that, let's get started. Those are the preliminaries. We're going to hear about the first two cases now, the speech cases, from Beth Williams. Beth, please go right ahead.
Hon. Beth A. Williams: Thank you so much, Dean. And thanks to The Federalist Society for inviting me to this. I think these are a great idea for those who don't have time to read all of the briefs, and all of the cases. It's a chance to really dig deeper into each sitting and find out about the cases that the Court is hearing. So I'm happy to be here.
November is actually going to be a big sitting. Not least of which, because there are two First Amendment cases ⸺ both appealed up from the Fifth Circuit, both from Texas ⸺ that the Court's going to be hearing. So let me talk about, first, a case called Houston Community College v. Wilson. And that's about the power of a legislature, or a legislative governing body, to censure one of its members. To my knowledge, the Court hasn't actually ever examined the issue of the censure power before. So it's going to be a really interesting case.
The facts are, the petitioner is the Houston Community College system, which is a public entity that operates community colleges around Houston. And it has a nine-member elected governing board. One of the members ⸺ a man named David Wilson, who is the respondent ⸺ was a huge critic of the board. He got elected, partially, on that basis.
He publicly criticized the board's decision to build a campus in the Middle East, and he saw himself as there to try to root out political graft and corruption on the board. And he made his criticisms very public. He had robocalls made about some of the board members. He did appearances on local radio stations to discuss his concerns. And he even hired a private investigator to investigate one of the board's members.
So the HCC board, unsurprisingly, didn't love this. And they issued a public censure of him. Importantly, not only did they say negative things about him and criticize his actions, but the censure also had some tangible consequences. Notably, as a result of the censure, Mr. Wilson was ineligible to serve as an officer of the board, to access his discretionary bank account, or to receive reimbursements for college-related travel. And the censure also received significant public attention, and Mr. Wilson lost his reelection race the following year.
So he sued -- brought a 1983 suit against the board, alleging that the censure resolution violated his constitutional right to free speech under the First Amendment. The district court that considered it dismissed it for lack of standing. But, on appeal to the Fifth Circuit, they reversed. The panel reversed. They held that he did have standing, and also held that he had adequately pleaded a free speech claim under the First Amendment, because "censures of publicly elected officials can be a cognizable injury, under the First Amendment."
So this was a really interesting en banc decision. After that, there was a poll for rehearing en banc. And it split evenly in the circuit, 8-8. And the Court chose to deny rehearing en banc. But several judges dissented from the denial of rehearing en banc, notably, Judges Jones and Ho, but also Judges Willett, Duncan, and Oldham, among a few others, which was quite a formidable group.
And they wrote their dissent in denial for rehearing. And they argued that censure does not impermissibly deter the exercise of free speech rights. They expressed concern about the courts getting in the middle of disagreements in a political branch, and suggested that allowing a claim like this would chill the free speech rights of legislative bodies.
So now it's up to the Supreme Court, and, unsurprisingly, both sides are claiming the mantel of free speech. Houston Community College System is arguing, first, that a censure does not impermissibly chill speech. They point out that Mr. Wilson can go to any public square that he wishes and speak whatever he wants. And, second, that it's actually Mr. Wilson's claim that would inhibit the speech, and that the board itself should be able to speak as a whole, and get its message and its thoughts out too.
Mr. Wilson is arguing that the censure is really a punishment. And that, especially as a political figure, he should be able to express his views without fear of retribution. Second, he's arguing that this wasn't just a censure. This wasn't just legislative speech. It had real-world consequences. Notably, he was inhibited from acting as a trustee, which is the office that he was elected to.
So the United States weighed in, in this case. And they weighed in on behalf of the HCC board. And they argued that it's a historical and traditional power of legislatures, especially Congress, to discipline their own members for a variety of infractions, including for objectionable speech.
So, what to look for in this case -- I think it's a really interesting case. It’s kind of an originalist's dream case. Because, for a justice who likes to delve into history and tradition, there's a lot of fertile ground for examining the practice of legislatures censuring their members. The wrinkle here is that, is it more than just a censure? Is this case more than just a censure? And, what if it's more than just a censure? What if it's not just legislative speech? What if it really goes further than that?
It's also an interesting case from a separation of powers perspective. Should the courts be getting involved in the goings-on of legislative bodies, policing their own members? And, is there a limit to that policing? So those are some of the issues the Court is thinking about in that case.
The second free speech case -- also really interesting. A lot of parties have submitted amici briefs on their positions. But this is more a traditional free speech case, along the type of cases the Court generally hears. And it involves signage in the city of Austin.
So this case is called City of Austin v. Reagan National Advertising. And, in this case, the city of Austin had a local code governing signage. For 38 years, the city had banned all off-premises signs, like billboards that advertised off-premises businesses. But the code grandfathered in off-premises signs that were already there, but said there could be no more.
So, Reagan National Advertising ⸺ the other party here ⸺ owns many of these off-premises signs that were grandfathered in. And what they would like to do with these signs is they would like to digitize them so that they can have lights and have changing messages on their billboards. The city of Austin said no to this. They thought, among other things, that this was not aesthetically pleasing. These signs would change colors, and have lights, and change messages. And they also said it would be a distraction to drivers along the highway.
So, as a result of this rule, what you have is, basically, a rule that says if you have a building, you can have a big sign that says, "Eat at Joe's" with an arrow pointing to the building. But if the sign is 100 yards away, that can't be digitized. It can't be electronic 100 yards away.
So, the Fifth Circuit concluded that Austin's sign code is facially unconstitutional under a case called Reed v. Town of Gilbert, which was a 2015 case from the Supreme Court. And the Fifth Circuit ruled that the city's restriction was a content-based regulation of speech, and that it did not pass strict scrutiny.
Now, Reed v. Town of Gilbert was an interesting case. It was a 9-0 case, written by Justice Thomas in 2015, but it had several concurrences. So, in that case, Gilbert, Arizona had a local ordinance, distinguishing the treatment of different signs on the bases of whether -- of 23 different categories. But some of those categories were whether they were ideological, whether they were political, or whether they were temporary directional.
And the Court, in that case, held that that was absolutely content-based discrimination, because it targeted different speech based on its communicative content. And, in that case, the law was not narrowly tailored to serve compelling state interests. So, because it was not content-neutral, it triggered strict scrutiny, and not narrowly tailored.
And, so, the key holding of Reed was that a content-based restriction alone triggers strict scrutiny. If the restriction is content-based, you don't have to get into the government's motive to determine whether strict scrutiny applies. It doesn't matter if the government has a benign motive, if the law is content-based.
But the Court, in Reed, was pretty clear also, that they were not striking down all signage laws. They said towns can still regulate the size, the building materials, the lighting, the moving parts, and the portability, of different signs. The towns just have to do it in a content-neutral way.
Justice Alito, especially, in his concurrence ⸺ along with Justices Kennedy and Sotomayor ⸺ listed some regulations that would not be content-based. He noted some of these might be rules distinguishing between lighted and unlighted signs, rules distinguishing between signs with fixed messages and electronic signs with messages that change. Those, according to Justice Alito, might be examples of distinctions or restrictions that might be okay. And Justices Kagan and Breyer were skeptical of over-applying strict scrutiny, although they did concur in the Reed case.
So the question in the case before the Court now is, what does content-based mean? Does it mean only that certain topics, like ideological or political topics, are favored or disfavored? Or is it triggered just by a read-the-sign test? So, if I have to read the sign to determine whether it's content-based, then it's content-based.
So petitioners say that we have to be able to regulate signs for public safety. They say the restriction is completely content-neutral, and it's just a distinction between signs that are off-premises and on-premises. And they point to some statutes, including the Federal Highway Beautification Act, which also has an on-off premises distinction in it.
Respondents, on the other hand, say, "Not so fast about content neutrality." This is not a content-neutral statute. First, you have to read it, you have to read the sign to know if it's disallowed. So it fails under a strict reading of Reed v. Town of Gilbert.
And, second, the prohibition is actually favoring certain speech over others. The respondents are arguing that the restriction prefers commercial speech over political, religious, or otherwise ideological speech, because, if you don't have a building, you can't have an electric sign. And, also, maybe your speech ⸺ especially if it's ideological or religious ⸺ is not connected in any way to a premises.
And, finally, they argue that the sign restriction really entrenches the status quo. With people preferring their own media these days, it's harder and harder to get out a message that everyone would see, as they would when driving along the highway.
So, what are we looking for here? I think the Court may be looking to clarify Reed. You have at least four Justices ⸺ Justices Alito, Breyer, Kagan, and Sotomayor ⸺ who certainly think that reasonable restrictions are fine. And at least some of those Justices, and maybe others, are concerned with watering down the strict scrutiny test.
In Reed, they were, in some ways, correcting a procedural misunderstanding in the Ninth Circuit. The Ninth Circuit ruled that benign government motive could somehow neutralize a facially content-based restriction. The Supreme Court said, "That's not correct. If it's not content-neutral, then strict scrutiny." And so, it will be interesting to see if the Court thinks that Austin's restriction is content-based.
So with that, I will turn it over to David.
David H Thompson: Thank you, Beth. And thank you to The Federalist Society for hosting this event. Next week, the Supreme Court is going to hear the biggest Second Amendment case in over a decade, NYSRPA v. Bruen. And the case involves a challenge to New York State's laws relating to carriage. By way of background, in over 40 states, you have a right to carry a firearm for self-defense. But, in New York, and a small handful of other coastal states, you need to show that you have a good reason, or a proper cause, in order to get a license to carry a firearm.
And, you might ask, well, what counts as a good reason? Well, one thing that doesn't count is wanting to carry a firearm for self-defense. And that's true even if you live in a crime-infested area. You won't get a permit in New York if that's your so-called good reason.
The First, Second, Third, Fourth, and Ninth Circuits have blessed this type of law. The D.C. Circuit struck it down in 2017. And so there's been a clear split in authority for a few years now. In 2020 there was a case out of the Third Circuit that presented this split to the Supreme Court. And, in June of 2020, the Supreme Court denied cert.
A few months later, Justice Barrett had been installed for Justice Ginsburg, and New York's very similar law was presented to the Court, and the Court granted. So you can draw your own inferences about what the change in personnel has meant for the Second Amendment.
The first issue the Court is going to confront is the proper analytical framework. In Heller, the Court emphasized text, history, and tradition, and rejected the dissent's call for an interest-balancing test that was very similar to intermediate scrutiny, although it didn't use that phraseology.
The lower courts, nevertheless, have, for the most part, rejected Heller's test. They've said, "Heller's test is only when you have a ban, a flat ban on something relating to the core of the Second Amendment. The core relates only to possession. And, therefore, we're not going to apply that test. Instead, we're going to apply intermediate scrutiny." And they typically uphold gun control laws by saying public safety is an important governmental interest. And we're going to defer to the legislature's understanding of this.
I don't think the Supreme Court is going to adopt the approach of the lower courts. I think they're going adhere to what they said in Heller. And they're going to focus on text, history, and tradition. So, what do those three metrics look like? Let's start with the text.
The operative clause says, "The right of the people to keep and bear arms shall not be infringed." How much clearer could James Madison and the founders have been, to say that? "The right to keep and bear arms shall not be infringed." Then, as now, if we consult Dr. Johnson's dictionary, or Noah Webster, we can see that bear meant "to carry." And that makes sense, in light of the purposes that were identified by the Supreme Court in Heller, behind the Second Amendment. They were threefold.
Number one, the right to self-defense, which, obviously, occurs both in the home, but outside of the home as well. The right to hunt. That obviously takes, exclusively, place outside of the home. And the right to fight tyranny. And, of course, the battles of Lexington and Concord were fought outside the home.
If we look at the history, we'll see that the leading treatises at the time of the founding acknowledge that there was a right to carry a firearm outside of the home. We can also look to the practices of the founding generation. Each of the first seven presidents of the United States carried a firearm on a regular basis. That was certainly true of George Washington and John Adams. Thomas Jefferson told his nephew, "Let your gun be your constant companion." And Madison, Monroe, John Quincy Adams, and Andrew Jackson, all frequently carried firearms.
So the Supreme Court has before it a choice. It can either brand each of the first seven presidents of the United States as habitual criminals, or it can find that ⸺ as a matter of history ⸺ there was a right to carry a firearm at the time of the founding. Laws in place at the time confirm this understanding. We see laws in a number of states that required people to carry a firearm outside of the home. We also see laws in the South that prohibited slaves from carrying. Why have a law prohibiting slaves from carrying, if there was a law prohibiting everyone from carrying?
There's also the dog that didn't bark in the night. There's the fact that there isn't a single instance -- not one, of anyone ⸺ at the time of the founding, being arrested for carrying a firearm peaceably. And so, that is another piece of historical evidence suggesting that there was no ban on carriage at the time of the founding.
So, what is the other side going to say? Well, they have, essentially, five arguments that the State of New York is running. Number one, they point to the Statute of Northampton, which is an English law, dating from 1328. And it basically said that you can't carry a firearm to the terror of the people. Now, you may be thinking, "Why is a law that's that old, relevant?" Well, it's arguably relevant, because, in America, at the time of the founding, Massachusetts and Virginia, and a couple of other states, had adopted Northampton analogs.
But, again, there wasn't anyone arrested for peaceably carrying in any of those states. Our first six presidents came from states with those laws on the books. And there are court decisions from the founding era, indicating that there was nothing impermissible about carrying peacefully.
The next argument that those on the other side point to is an 1836 surety law from Massachusetts. And the first point I would make about that is it's too late in the day to have one law that comes from 1836, but doesn't tell you much about 1791. But, I'd also point out, it's important to understand, New York is eliding how the law really worked.
Number one, it only applied to people who were identified by a member of the public as a menace to society. And, if they were so identified, and a court found that they were, in fact, a menace to society, they were still allowed to carry a firearm, provided they posted a bond. Now, pointing to this law explodes the idea of New York that there was a ban on carriage. Because, if New York is right, then the only people in Massachusetts, after 1836, who were able to carry, were those who were found to be a menace to society and had to post a bond. That can't possibly be right.
The third historical argument that New York points to is that there were bans on concealed carry in the early nineteenth century. And they're right about that. But there was litigation over those bans. And every court that upheld them ⸺ and they were upheld ⸺ did so explicitly because public carriage was allowed, and made clear that a flat ban would not have been permitted.
The fourth point they point to is that in the Wild West there were a handful of jurisdictions, after the Civil War ⸺ Tombstone, Arizona; Dodge City, and a few others ⸺ that banned carriage of handguns. Again, those are too late in the day to help them. And they are a tiny handful of outlier jurisdictions.
The final argument they make ⸺ from a historical perspective ⸺ is a suggestion that the Second Amendment means different things in a city, versus a rural environment. That argument was advanced in Heller. It was a centerpiece of the District's defense. It was rejected. And there's nothing in the text to support it. And there's nothing in the history to support it, either. John Adams was the defense lawyer for those involved in the Boston massacre, and he acknowledged ⸺ and he had to concede ⸺ that the colonists who were there in the most urban of settings, then and now, had a right to be there, and to be armed. So there's nothing to that distinction.
If I'm wrong, and the Court goes off on intermediate scrutiny, what are they going to say? Well, there are hundreds of pages, if not close to 1,000 pages, of social science. But I think the most telling point from these amicus briefs is that, about 30 years ago, there were almost no one in the United States who had a right to carry a firearm. And, over the last 30 years, they're going to have 20 million Americans who have a permit. There are also tens of millions of additional Americans who live in states that have permitless carriage. And, during those 30 years, the number of murders in the United States has plummeted.
Now, you might say, "Well, would it have fallen even more, if it hadn't been for these tens of millions of people carrying a firearm?" Professor Bill English of Georgetown has done a gold-plated study. He had a whole amicus brief about it, showing that's not the case. And the other side did not lay a glove on that in their many, many, amicus briefs.
So, my prediction is that New York's law will be struck down. I don't know if it will be 6-3, or 5-4. And I won't be surprised at all if Justice Thomas writes the opinion.
Just quickly, I will touch on the other case that Dean mentioned at the top. This is FBI v. Fazaga. It's an interesting case, involving the state secrets doctrine. And I'm not an expert in that field, but I'll give you a quick overview. The facts involved an FBI surveillance effort into a mosque. They were trying to develop intelligence about certain worshipers in that mosque. And the FBI did not want to identify who the people of interest were, and they didn't want to identify why those people were of interest to them.
The targets of this investigation sued, saying, "We've been discriminated against, because of our religion. And the government has violated the FISA statute." The district court dismissed the case under the state secrets doctrine. The Ninth Circuit, over dissents from 10 judges, actually reinstated the case, and said that the procedures under FISA displaced the common law, state secret doctrine. They acknowledged that the doctrine is venerable. It dates back to George Washington. But that it is common law and they said the statute displaces it. And the Ninth Circuit said the district court had an obligation to look at information in camera, and on an ex parte basis, and determine if FISA had been violated.
So there are a few issues before the Court. Arguably, actually, there's a fair bit of contestation about what's included in the question presented, and what's not. But, issues that could be addressed by the Supreme Court include the scope of the state secret doctrine, whether it is merely an evidentiary privilege, whether it is a creature of federal common law, or, rather, whether it emanates from Article II of the Constitution, and, therefore, cannot be displaced.
And so those are the issues that we'll be finding about in the coming months, when they resolve that case.
Thank you. And I will turn it over to Jennie.
Jennifer Lichter: Thanks David. And thanks to Dean and The Federalist Society for having me. And good morning everyone.
The first case I'm going to talk about is Ramirez v. Collier, which is set to be argued on November 9. The petitioner in this case, John Henry Ramirez, was convicted of capital murder and sentenced to death in Texas in 2008. He is not now challenging his conviction or his sentence. Instead, he is raising a religious liberty challenge to one specific aspect of the circumstances of his execution, namely, he wants his pastor ⸺ who will be in the execution chamber with him ⸺ to be allowed to lay hands on him, and audibly pray over him during his execution, which Texas currently will not permit.
Ramirez has obtained a stay of his execution while the Court determines whether prohibitions on touch and vocalization ⸺ so, two separate claims, touch and vocalization ⸺ by Ramirez's pastor in the death chamber violate RLUIPA, the Religious Land Use and Institutionalized Persons Act. Note that Ramirez had raised a First Amendment challenge to Texas' policy as well, but he affectively abandoned it in his opening brief. So the action in this case really is under RLUIPA.
And the RLUIPA standard, of course, is that no state may substantially burden a prisoner's religious exercise, unless the state shows that its challenged policy is the least restrictive means of furthering a compelling government interest. So that's where the action is in the briefing on both sides -- the RLUIPA standard, and whether Ramirez's claim meets it.
The first important piece of context here is that the Court has actually handled a series of cases in the past few years about spiritual accompaniment in the execution chamber. Specifically, those cases were about the presence of a chaplain in the chamber. So this is an issue set that they've been actively working through recently.
The first one of those cases was in February 2019, a case called Dunn v. Ray. Alabama had a policy at the time that its own chaplain, a Christian chaplain, could enter the execution chamber, but no other spiritual advisor would be allowed in. A Muslim prisoner who wanted an imam to attend to him challenged the policy, and the Court declined to block his execution.
But, number two -- the next month, the Court revisited the same issue in a case out of Texas. Texas, at the time, had a similar policy, which allowed only its own chaplains ⸺ Christian or Muslim, in Texas ⸺ to enter the execution chamber. A Buddhist prisoner named Patrick Murphy challenged this policy, and the Court stayed his execution.
Justice Kavanaugh wrote a concurrence in the stay, telling Texas that it had two options for resolving its problem. It could opt to either allow all inmates to have a spiritual advisor of their choosing in the chamber, or they could prohibit any spiritual advisors⸺ including the state's own employees ⸺ from entering the chamber.
Texas chose the second of those two options, and amended its policy to prohibit any spiritual advisor from entering the execution chamber. This turned out to be a bad idea. A lot of litigation over this new policy swiftly followed. And, in June of last year, the Court, again, stayed a Texas prisoner's execution, directing ⸺ in a case called Gutierrez v. Saenz ⸺ that the district court should determine whether serious security problems actually would result if a prisoner could have his chosen spiritual advisor with him during his execution. The district court found that there wouldn't be serious security problems, so Texas, again, amended its policy -- this time, to permit a spiritual advisor of an inmate's choosing to be present in the chamber. That's the policy that's currently operative.
Those three cases came to the Court prior to Justice Barrett's confirmation. But, in February of this year, we got a little peek at where she might be on cases of this kind, when she joined in blocking Alabama's execution of an inmate who wanted to have his pastor with him when he died, contra Alabama's new policy of not letting any chaplains in the chamber. They had made the same change as Texas, after the Murphy case.
This was a case called Dunn v. Smith. Justice Kagan wrote a concurrence, saying the State hadn't met their burden of showing that their policy was the least restrictive means of ensuring prison security. She was joined by the other liberals on the Court, and Justice Barrett. So, just something to keep in mind there.
So, for those keeping score, that's three wins out of four, for condemned prisoners. The Court has been, generally, receptive to this kind of claim about spiritual accompaniment in the chamber. It's also two policy changes by Texas in the last couple of years, as it has tried to keep up with what the Court is asking of it.
So that brings us now to Ramirez, who, in his case, is trying to push Texas's policy even further, by establishing that a spiritual advisor of an inmate's choosing may not only be present ⸺ which is pretty well established at this point ⸺ but may minister to the inmate, physically and vocally, during the execution. And, his case, unlike the four just discussed, will be heard as part of the Court's regular docket, with full briefing and argument. The previous ones were handled on emergency motions, emergency applications.
Other thing to note is that there's another, broader, jurisprudential way that I suspect Ramirez is also trying to ride. And that's this Court's general, recent, close attentiveness to the rights of people of faith, and religious entities.
So, a few quick examples. During Covid, the Court ruled repeatedly for church entities and other religious groups who were challenging restrictions on worship. Last term's blockbuster religion case, of course, was Fulton v. City of Philadelphia, in which the Court held unanimously that Philadelphia had violated the Free Exercise Clause when it refused to contract with a Catholic entity for foster-care services, because the entity wouldn't place kids with same-sex couples.
Other recent rulings have solidified protections for employment decisions made by church entities, and have declared that religious schools can't be excluded from state programs providing tuition aid for use at private schools.
Going back just a few more years, the Court ruled unanimously for an Arkansas prisoner raising a legal claim, seeking permission to grow a half-inch beard, consistent with his Muslim beliefs, but contra prison policy. This was Holt v. Hobbs, decided in 2015. And there, that unanimous decision for the prisoner came in the face, of course, of the prisons -- of the Arkansas prison system's arguments about prison security.
So the Court has shown itself to be keenly interested, of late, in taking cases involving religious liberty protections in all different contexts, including in the prison context. And then, using those cases to articulate a fairly wide sweep for religious protections. This trend, presumably, must be very encouraging to potential litigants who are considering raising constitutional or statutory religious liberty claims.
Further confirming that Ramirez's case is situated squarely in this line of recent religious liberty cases ⸺ or at least that he wants to be situated there ⸺ religious liberty advocates have come out in full force to support him. This in an interesting ideological alignment, because, of course, conservative people are often caricatured ⸺ or characterized, at least ⸺ as being pro-death penalty. But here you have a lot of what are considered to be conservative religious liberty actors, who have filed on behalf of Ramirez. He's gotten a lot more amicus support than Texas has -- ten amici for Ramirez, versus just three for Texas. And at least half a dozen of Ramirez's amici are well-known religious liberty groups or religious liberty scholars, arguing in support of his RLUIPA claim.
A final notable amicus here, is the United States, which filed as supporting neither party, although, really, I think its arguments lend a fair amount of support to Ramirez, particularly, as to his audible prayer claim. And, specifically, the DOJ clarifies in its brief that in several of the federal executions carried out in final months of the Trump administration, the inmate's chosen spiritual advisor not only went into the execution chamber, but audibly spoke to, and prayed with, the inmate inside of it. This is an important clarification, because, in the proceedings below, I believe that Texas had represented that the federal government did not permit any speech inside the execution chamber. Here, the Justice Department is saying that's actually not correct, as to recent practice, at least.
And this goes to the key question of whether Texas's complete ban on vocalization and on touch is the least restrictive means of furthering what's generally agreed to be a compelling interest in safety and security, during the execution procedure. The Court has granted the federal government's request for argument time. So they're obviously interested to engage more with the federal government on this point, as well, probably, as others.
So, given all of the above, this case seems poised to produce a really fascinating religious liberty decision, sitting, as it does, at the intersection of religious exercise, on the one hand ⸺ in a particular context that's caught the Court's attention repeatedly in the past couple of years⸺ with the state's strong interest in safety and security in a highly sensitive setting, on the other hand.
So what is the Court going to do? My best guess, my prediction, is that the Court is going to reject Ramirez's physical touch claim on the grounds that a spiritual advisor's ongoing physical contact with an inmate undergoing execution just carries too much risk of disrupting the carefully choreographed execution procedure. So, in other words, I expect that Texas will probably be able to meet its burden of showing that prohibiting physical touch during the execution is the least restrictive means of furthering its compelling interest in a safe and secure execution procedure.
But, if the Court resolves Ramirez's audible prayer claim on the merits, I think he has a good shot at winning that one, given the much lower risk that seems to be presented by vocalization, as opposed to touch, and given the favorable comparators for the prayer claim presented by the federal government, in particular.
But I'm not sure that the Court ultimately will rule on Ramirez's audible prayer claim. One of the four questions that the Court has directed the parties to address in their briefing is whether Ramirez exhausted his audible prayer claim, as is required by the Prison Litigation Reform Act, the PLRA. This question of exhaustion ⸺ which, of course, is hotly contested in the briefing⸺ wasn't directly considered by the lower courts. And the Supreme Court may well be loath to render a decision on the substance of a claim about which there's an undeveloped exhaustion question. So my guess is that the Court may well remand that claim for further proceedings below.
Next, I'm going to take a few minutes to talk briefly about a pair of cases called Whole Woman's Health v. Jackson, and United States v. Texas. Although these case names might not be immediately familiar, I imagine that everyone watching is familiar with the underlying law at issue here, which is Texas's heartbeat law, also known as S.B. 8. The Court just granted cert in these cases on Friday, and it set an extremely expedited schedule. All parties' briefs are due by 5:00 p.m. today, as are amicus briefs. Reply briefs are due on Friday. And the case will be argued on Monday. And, given the speed with which the Court is moving these cases, we can probably expect to see a decision soon after argument.
There's really a lot to unpack here. I'm going to offer a quick high-level primer on factual and procedural background. And Andy Pincus, who will speak after me, is going to dive a bit deeper into some of the arguments here.
Okay, so S.B. 8 was signed into law in Texas in May, but went a little bit under the radar for a while, at least in terms of national media attention. But, as its effective date of September 1 got closer, a lot of activity and attention quickly ramped up surrounding it. And that activity and attention has reached something of a fever pitch, which is how it got on all of our radars.
What has generated so much attention, and so much litigation about this law, is the law's novel enforcement scheme. S.B. 8 requires doctors to determine if an unborn child has a detectable heartbeat before performing an abortion, and prohibits an abortion if a fetal heartbeat is detected, except in the case of emergencies. This aspect of the law is actually not terribly unusual. I think there's over a dozen states that have passed a law like this, all of which ⸺ or almost all of which ⸺ have been blocked.
But S.B. 8 also specifically prohibits enforcement of these heartbeat provisions by the state or any arm or actor of it. Instead, the heartbeat provisions are enforceable exclusively through private civil actions. In other words, any private person is empowered by this law to bring a civil action under it against anyone who performs a post-heartbeat abortion, or who aids and abets one. And that latter clause could, conceivably, cover a wide range of conduct, of course. The law incentivizes these civil suits by establishing that a successful plaintiff could get damages of at least $10,000. This statutory scheme is ⸺ in the words of the Chief Justice, in a previous round of litigation last month ⸺ "not only unusual, but unprecedented."
That previous litigation that I just mentioned sought to prevent the law from going into effect on September 1. The Court, at that time, declined to block the law, with a short unsigned opinion explaining that the suit presented complex and novel antecedent procedural questions that hadn't been resolved, most importantly, who exactly the Court ought to enjoin from acting to enforce the law.
The Court emphasized, at the time, that it was not deciding the constitutionality of the heartbeat law at that moment. The two cases set for argument on Monday likely also are not going to result in a ruling on the constitutionality of the law. In fact, Texas had actually specifically asked the Court that if it were to grant cert, the Court should consider whether the Constitution protects the right to abortion, and whether to overturn Roe and Casey. But the Court declined, explicitly declined, to take up that invitation.
So here's what's going on in these two cases, instead. United States v. Texas -- the DOJ sued Texas last month, seeking to vindicate, it said, two sovereign interests. One, the federal government's ability to carry out its own responsibilities regarding abortions. And, two, its interests in defending the constitutional rights of Texans, which DOJ said the law violated. The district court enjoined enforcement of the law, but the Fifth Circuit promptly stayed the injunction. So the real-world impact there was that the law was blocked for about two days, and then it came into force again.
DOJ came to the Supreme Court, asking it to vacate the stay, so that the injunction could, once again, block the operation of the law, and abortions could resume in Texas. It also asked the Court to consider granting cert before judgment, which is an unusual procedural move by which the Court takes a case and renders a decision before the court of appeals has issued a merits decision.
The Court declined, again, to block the law. But it granted cert, specifically on the question of whether the United States can bring this suit, basically. Can the United States bring suit in federal court and get relief against the state, state actors, or private parties, to prohibit the enforcement of S.B. 8?
The second case that will be argued on Monday is called Whole Woman's Health. This is the litigation that had made it up to the Court at the time of the law's effective date. Since then, proceedings have continued in the lower courts. To make a long story short, the providers are now back at the Supreme Court, also in a cert-before-judgment posture. The question presented here is, basically, whether Texas is going to be able to get away with it. In other words, whether it can, indeed, insulate a state law from federal judicial review by delegating enforcement of it to the general public. That's exactly what Texas had intended to do, and, so far, it seems to be working. This case asks, are you really going to let them get away with this?
This petition was filed on September 23, and had been sitting for a while, relatively speaking. It's the U.S. government's petition, filed just on October 18, that seems to have lit a fire under the Court, and prompted them to grant and expedite both.
So here we have two cases, both granted in the absence of court of appeals decisions, both set for argument ten days after the Court accepted them. And both are essentially about what kinds of lawsuits, brought by and against which parties, are appropriate for challenging this very unusual state law.
And with that, I'll hand off to Andy Pincus for more on the arguments here, as well as more on a few more of the cases.
Andrew J. Pincus: Thanks Jennie. And I want to add to everybody my thanks to The Federalist Society, both for this program, generally, and for inviting me.
These two S.B. 8 cases are basically an entire federal courts course in two cases. There are a whole bunch of issues. I'll try and focus on some key ones. But, really just scratching the surface. I think it's important to note, as Jennie did, just how unprecedented this is. Not since Bush v. Gore has the Court granted cases, set such a tight briefing schedule, and set such a tight argument schedule. So, really, you have to look back to that ⸺ a pretty dramatic case ⸺ for a precedent such as this. And I'll try to zoom out at the end, after sort of delving into legal nerdom to talk, maybe, about the broader significance.
But, starting with the private lawsuit, the Whole Woman's Health lawsuit. Really, the first critical issue there is sovereign immunity. What the Fifth Circuit held, basically, in staying the district court's injunction in that case, was that this suit ⸺ which names the Attorney General of Texas, a class of Texas judges, state court judges, and state court clerks, as well as a private person, but the private person less relevant here ⸺ can't proceed because of Texas's sovereign immunity.
I think everyone remembers from law school, if not private practice, that Ex parte Young was a workaround against states' immunity. Private parties can't sue states directly in federal court. But Ex parte Young said you can sue state officials to raise constitutional or statutory claims grounded in federal law.
And so, the question is, does Ex parte Young work here? Texas, in the Fifth Circuit said no, because it only works if there's a state official responsible for enforcing the law. That's what Ex parte Young says. There has to be some connection between the state official sued, and enforcement of the statute. And there is none here. As Jennie said, Texas carefully crafted this law to avoid that by making clear that the state cannot have any possible role in enforcement, and enforcement is entirely delegated to private parties.
So what are the plaintiffs saying in response to that? They cite some segregation-era cases in talking about attempted circumvention by states in that era, and say this is similar. They say Ex parte Young is a general principle, that it really is about allowing pre-enforcement review of statutes. And it rests on a fiction anyway, and that fiction can be used to qualify this case. Because there obviously is a role for judges and state court judges and clerks in the adjudication of cases and the processing of cases under the statute, as well as in the enforcement of any judgments that are rendered in those cases.
Sovereign immunity sort of merges with, but is a little separate from, a second issue, which is Article III. Is there standing here? Is there traceability? Obviously, Article III requires injury. There's no doubt that the plaintiffs here are injured. But what about traceability and redressability? Did these particular defendants ⸺ the state court judges ⸺ have any role in inflicting that injury? And, I think, a real question about whether there is sufficient adversity for Article III purposes, when the defendants are judges who are just adjudicating cases, which, everyone concedes, that's what they're doing here.
So, I think, in addition to the sovereign immunity question, there's going to be an Article III question. And then there's a question about the availability of relief against judges under 1983, which, of course is the statute that's the basis for the providers' lawsuit here. Following the decision in a case called [Pulliam v. Allen] that involved a 1983 case against a judge, 1983 was amended to add this provision about lawsuits against judges, and I'm quoting, "Injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
So, Texas says that clearly means that there can't be injunctive relief, although, I guess, to my eyes, the statute is a little unclear. What does it mean that declaratory relief is unavailable? I think the plaintiffs here would say any alternative to declaratory relief is unavailable here if Ex parte Young is interpreted the way that Texas claims, so that judges are sort of the only available defendants left. And doesn't that sort of satisfy the language of the statute?
Texas' view is that 1983 only permits lawsuits when judges are acting ⸺ as some state courts allow them to do ⸺ in an enforcement or executive capacity. And that that's not happening here. So, I think at least two big issues to be resolved in the Whole Woman's Health case. But let me turn to the federal government case, because there are even more issues there. And that may end up being the center of the action, as Jennie said. It seemed to have been the precipitating event for bringing all of these cases before the Court.
The U.S. filed after the providers' suit failed. And that lawsuit resulted in a very long and comprehensive district court opinion, ruling in the government's favor. The Fifth Circuit -- the district court granted a preliminary injunction. The Fifth Circuit -- and refused to stay it. The Fifth Circuit did stay it in a brief order that pointed to its prior decision in the Whole Woman's Health case. I think everyone agrees that the problem with that is there are some significant differences between the U.S situation and the situation of those private plaintiffs in Whole Woman's Health, that really didn't get any airing in the Fifth Circuit's stay decision.
So, as I say, a lot of them. I'm going to talk about four. Just to tick them off for those who are interested in a preview -- sovereign immunity; is there a cause of action, is there standing, and what about relief?
Sovereign immunity, as I said, the key issue in Whole Woman's Health, but not an issue in the U.S. case, because it's clear that sovereign immunity is not an obstacle to the federal government suing a state in state court. So, pretty easy to get rid of that. But is there a cause of action? There is, obviously, no statutory cause of action for the federal government to sue here. It's relying on equity. The government claims that equity authorizes this suit, basically, invoking three reasons that it says comes together to justify the action here.
One is that the United States has a sovereign interest in protecting constitutional rights against what it calls nullification. It claims that the Texas statute basically eviscerates the right to abortion in Texas, and that that's one part of the interest. The second thing that it says is happening here is all of the traditional pre-enforcement routes for judicial review have been foreclosed. And the third thing that it says is happening here is the dramatic consequences on the ground. As Jennie said, there essentially are no more abortions in Texas. So the law is having a dramatic effect on the constitutional right. And the government says those three things combined to give it the right to invoke equity to obtain injunctive relief against Texas.
The government points, interestingly, historically, to a case called in re Debs, which was a case involving a strike on the railroads, a Pullman strike that stopped delivery of the mail. And, in that case, the government went into court and got injunctive relief against the strikers, invoking this sort of general equitable power. And the court said. "There is an action available in equity to the United States."
Texas says that doesn't work here. Just to tick off some reasons; it says Debs is limited to the situation where the government is relying on powers granted to it by Article I, its legislative powers, and statutory authority. Obviously, in that case, it was all about the mail and interstate commerce. And so, Texas' view is, that distinguishes this case, where the government is not relying on Article I powers, but, obviously is relying on rights conferred to citizens by the Fourteenth Amendment.
Texas says there is a right to judicial review here. In any action under the statute, the defendant will be able to set up the federal constitutional right, as the defense, that state court judges are pledged to apply the federal constitution. So what's the problem? Why isn't that enough? And Texas says the government's alternative theory allowing the government to proceed here, creates, essentially, a right in the United States to be the roving enforcer of constitutional rights.
Finally, Texas makes an argument about the availability of equity, generally. There's a case called Grupo Mexicano that the Supreme Court decided a while ago, about the scope of federal court equitable powers. And it said, essentially, those powers are limited to what they were at the founding. And the federal courts ⸺ unless Congress confers additional authority ⸺ federal courts can't go beyond those rights. So we have a dispute about that too. Federal government says, long history of federal courts enjoining statutes that violate constitutional rights. Texas says, maybe, but not in this context, where there's no particular federal interest involved.
I should say, although most of the federal government's arguments rest broadly on defending the applicability and the availability of the constitutional right, there also is -- part of their argument is about an effect on federal operations. The fact that the Bureau of Prisons is obligated to arrange abortions for prisoners who want it, other people in federal care. And the federal government says both preemption theories and intergovernmental immunity theories give it an additional interest that allows it to obtain equitable relief in that context.
The district court found that those interests were affected. Texas' argument is that the effect on federal operations is speculative. We'll see the extent to which the Supreme Court wants to defer to the district court's finding, in that regard.
One thing the U.S. responds to in Texas' argument is about the availability of the alternative judicial relief. One interesting aspect of the statute is that the pregnant woman who tries to get, or gets, an abortion, is not liable under the statute. And so, only providers and aiders and abettors are. So, one point the government makes is the person who is the rights holder ⸺ the holder of this federal right ⸺ can't set up that right in court in any way, and that that is another reason why the traditional enforcement routes are not available.
So that's a little bit of a taste of where we are on equity. Lots more to say there, if people want to get into it later. Let me talk a little bit about standing. The U.S. says there is this injury to its interests, its sovereign interests, in the availability of constitutional rights and the impact on federal operations. Texas says that's really none of those injuries. Certainly, the impact on sovereign interests is not a direct injury to the United States. It relies on a case called Muskrat, in which Congress, basically, set up litigation, empowered some individuals to challenge federal statutes. And the court said that does not create standing. Here, I think it's a little different. The U.S. isn't relying on a statute. It's relying on its own sovereign interests and the impact on its own operations. So it says that that really doesn't apply.
Turning to the last category. Well, I think the other question is a carryover of standing from the Whole Woman's Health case. Is Texas the right defendant here? And, here, I think it's interesting. Texas doesn't have an enforcement responsibility. But one can think of a lot of contexts in which sovereigns ⸺ both the United States, and states ⸺ have an interest in the constitutionality and the enforceability of their own laws. You can think of situations where they intervene in private lawsuits to defend the constitutionality of their laws. There's a special statute that basically sets up a process that allows the federal government to do that in private lawsuits.
And so, I think it will be interesting to see whether the Court sort of confronts the question, and how it decides. But I think there's a reasonable argument that Texas has an overall interest in upholding the viability of its laws that may be sufficient to confer standing in this kind of lawsuit, where the United States can sue the sovereign itself.
So then the question is, what about relief? The United States sought and obtained relief, similar to what was sought by the private parties: relief against Texas judges and courts from entertaining these claims, relief against other local and state officials from enforcing any judgments, and relief against private parties from bringing these lawsuits. It got all three. Maybe it doesn't need all three for its victory to be effective.
Texas' claim is you can't really get relief against the judges and their clerks. There's no adversity there. Of course, what the United States says is, "This is different from the Whole Woman's Health case, where the question is, is there adversity between the parties?" Here, the United States says, "We're suing Texas. We can get relief against Texas. The question then is, how should the injunction run, in order to make our victory real?"
And so I think it may be a slightly different question about whether, in rewarding relief to a party, a federal court can issue relief against judges and clerks. There's a lot of fighting in the papers about whether federal courts can do that. There obviously are some situations where they do. That's why there is an anti-injunction act, because federal courts have done that in some situations. It’s not usual. And the United States admits that. They say it's not usual, but, of course, that's because there usually are other people who are responsible, who can be enjoined. Because Texas has sort of constructed this unusual statute, there's a need for unusual relief.
With respect to the private parties, the U.S. says they're essentially acting under the mantel of state authority. And the injunctive relief the district court awarded is limited to those actually acting in concert with the state. And so it may not be as broad as every possible person who would invoke the statute. But I think that will be another question that the court will address.
Just to zoom out for a little bit, I think it's very interesting ⸺ and I'll put myself in the legal nerd category, as I said before ⸺ to talk about these legal issues. But I think the issues presented by these cases are pretty dramatic and important. I think, if you just look at the United States in the last ten years, one of the things we've learned is what we took for granted ⸺ in terms of how democracy operates ⸺ rested on norms, not necessarily laws. There's been a lot of stretching, and maybe breaking, of norms, in states and Congress and the executive branch. I'm not making a value judgment. I just think it's a reality.
And I think we've seen that once norms are broken, that can lead to a chain reaction, breaking other norms, and real impact on the functioning of the government and whether it's going to function in the same way as before. I don't think anyone disputes that S.B. 8 is a pretty norm-breaking law. It's a great example of legal engineering. But, I think, how the court will respond, and whether the door will be open to this kind of activity in the future or closed, is going to be a pretty broad and important question. The United States points out in its papers, for example, that, if this statute is constitutional, why couldn't the state deputize individuals to sue citizens who possess handguns? And, in fact, one of the interesting things is an amicus brief in support of the private lawsuit and the government was filed in the Supreme Court by the Firearms Policy Coalition, saying -- which is a pro-Second Amendment group, pro-First and Second Amendment group, saying, "We're concerned here. There has to be a pre-enforcement cause of action. Otherwise you are opening the door to some very, very potentially adverse circumstances."
So, hard to know what's going to happen, but I think it is another event ⸺ like many in our recent past ⸺ that will indicate how our system is going to respond to these challenges.
Maybe I'll say two quick words about the gun cases, and then we can talk more about them later. My friend David talked about "shall" in the Second Amendment. Of course, "shall" is in the First Amendment, too. But I don't think anyone would say that the First Amendment is absolute. And, in fact, the court has made clear that it's not.
I think there's a lot of interesting discussion in the cases about the history. And I think the United States, and New York, and many amicus briefs, have a sort of alternative view of history and what was permissible, in terms of carry ⸺ especially in populated areas ⸺ both at the founding and in the early years of the republic.
And, of course, one question about originalism, generally, is what is relevant, the framers' expectation about how the constitutional right would be applied? Or is it just about the principle that they were adopting -- adapted, perhaps, for modern times, as some pro-originalists ⸺ Steve Calabresi, among others ⸺ have claimed. I think this case poses that question, as well as the recognition that, although relying on history seems very objective, it's a messier business than one would think. Which is why writing books is a big business for historians, and revisionism in history is a pretty frequent occurrence.
One interesting fact that New York has in its papers, not in the record, is that over two years it granted 65 percent of the requests for carry licenses, without restriction. Ninety-three percent were granted with restriction -- either unrestricted, or with some restriction. I'm not saying that answers the question. Because what's interesting about this case is that the court changed the question presented, from a broad question about carry, to a question about whether these particular individuals were permissibly denied the full extent of the licenses that they requested.
So, happy to talk more about that. But I think it will be quite an interesting debate, both about the history, and the reality, in the New York case.
And, with that, I'll kick it back to Dean.
Dean Reuter: Terrific. Well, there's plenty on the table, I would say. So, thank you all. And congratulations on hewing pretty closely to our time restrictions. So, we've got about 25 minutes left, and much to discuss. For those of you in the audience, if you would use the raise hand function, if you'd like to ask questions, we will be monitoring the chat. And the panelists can monitor the chat, as well, if you see something in there you want to respond to.
I like to come at this, sometimes with themes, what's happening in this November sitting as a theme. I'm not sure I can identify many things. The first thing that jumps out to me is Texas is the theme. If I check the transcript, the word Texas might appear more often than any other word. But I think that's more of a coincidence than anything. I have heard, and I'm curious about -- maybe you guys can be thinking about this -- but I want to go first to David and to Jenny, to give them a chance to respond somewhat to what Andy's laid out on the gun case, and the Texas cases. But I wonder about the use of en banc in the modern era. It feels to me like en banc and dissent from denial and all of that -- that seems to be a bigger thing at the Supreme Court level now than it ever was before. I might have that wrong. But I'd be curious as to thoughts about that, if people want to think about that.
And then, a couple of you mentioned, specifically, changes in personnel on the Court cutting one way or the other. And I'd be interested in additional thoughts on that. But first, David, I'd like to hear you respond a bit to Andy and his analysis of the gun case. And then let's turn to Jenny for a quick response.
David H Thompson: Sure. And Andy makes a good point that it's not an absolute right. And I think Paul Clement and his team would agree with that. One of the passages of Heller that has been litigated and cited to extensively, is a passage, which, if you believe Justice Stevens, he convinced Justice Kennedy to insist that Justice Scalia put it in the opinion. And it basically said, we're not casting doubt on presumptively -- presumptively -- lawful, long-standing restrictions. And there's this laundry list of dicta. And one of them was saying, "including prohibitions on carrying in sensitive places."
Now, one of the aspects of that statement that is interesting is it pre-supposes there is a right to carry. If there were no right to carry, you wouldn't be talking about, well, there isn't a right to carry in a sensitive place. And one of the things that is fairly dramatic, is that New York had been litigating this issue for a decade, on the theory that there was no right to carry outside the home. And they've shifted. They know that is untenable. And they've shifted to this idea that, number one, it's not an absolute right. And, number two, that there's a difference between the cities versus the rural areas.
On the absolute right, there's an amicus brief that was submitted ⸺ actually, I think, a couple of amicus briefs ⸺ pointing out, at the time of the founding, there was a sensitive place exception to the right to carry. It was narrow. It was circumscribed. But if you look at the court system, for example, you were not permitted to carry a firearm into a court. Well, why not? Because the government had bailiffs there. And so you didn't need to have a right to self-defense in a court, because the government provided security. And I think the modern-day analog would be TSA. The government provides you with adequate security when you go through TSA, and so that would be a sensitive place that would be consistent with what we see at the time of the founding.
But it wasn't a free-standing prohibition. There weren't a numerosity of sensitive places. And it was circumscribed. But it also was an absolute. And, again, this idea that New York really has pivoted to, in its brief, that -- well, in populous areas, it's different. As I said, it's not in the text. It's not in the history. There's no one. They can't point to anyone, who, in a city -- and remember, these statutes that they point to were in Massachusetts, or Boston. They can't point to a single Bostonian who was arrested for carrying peaceably in Boston. And John Adams specifically said that the Boston massacre ⸺ which was right at State Street, an incredibly urban environment ⸺ that those people had a right to carry arms for self-defense. So I don't think that argument's going to work. But it's the best they've got. And I understand why they're making it.
Dean Reuter: Let me ask you another quick direct question, David, if I could, while we have you. In closing, Andy sort of mentioned breaking norms and what that can lead to. He was talking about the Texas statute, I think, not the gun case. But you mentioned, in your opening, David, the idea that lower courts are -- I don't know if you said they're not following Heller, or what. But I wonder if there's some sort of civil disobedience in lower courts, if that's the right way. If there's some gamesmanship. In the earlier New York case, we had a pretty restrictive New York statute that was at the Supreme Court, and then modified, which mooted the case. Are we seeing any frustration in the court, with regard to cleverness by litigants or legislatures, with regard to guns or other creative statute writing, and the breaking of norms?
David H Thompson: I think the breaking of the norm is ⸺ if I must say ⸺ is at the judicial level. It's not the legislatures. These laws have been on the books for a while now. It's the fact that, in the face of a clear-cut analytical framework ⸺ text, history and tradition ⸺ that time and again, we see certain judges thumbing their nose at the Supreme Court. And, instead, basically adopting what Justice Breyer said. And it's extraordinary. And Paul Clement, I believe, once said ⸺ we have said in our papers⸺ this is akin to the sort of massive resistance that we saw in the Deep South after Brown v. Board of Education. Some of these judges just don't like Heller. And they don't like the Second Amendment. And some of them have gone on to say, "Well, it's a vast terra incognita, the Second Amendment, so we're just going to allow these laws to stay in place." And that is a break with a norm.
Judges take an oath to uphold the Constitution, and they should do their job. And, even if it is a question of first impression, they need to follow Supreme Court precedent. And I think the Supreme Court is going to lay down the law, and is going to reaffirm that they meant what they said. It's text, history and tradition. My colleagues, John Ohlendorf and Joel Alicea, have written a magnificent short law review article on tiers of scrutiny, and looked at the history of that doctrine. Chief Justice Roberts called it "a barnacle that has just sort of gotten on to the First Amendment." He called it that in the Heller oral argument. And he's right. That's a relatively recent doctrine. We didn't have it for most of this country. And it was invented so that judges could chip away at our constitutional rights and say, "Yes, you have a constitutional right to speak, or carry a firearm. But, we're going to clip it, because there's something that, in our view, is more important than what the founders said." And it is an ahistoric, and it is an anti-freedom type of analytical framework. And I am optimistic that it will not be extended to the Second Amendment.
Dean Reuter: Let me pivot back to Jennie. By the way, David, when you say tiers of scrutiny, I wonder how you're spelling the word "tiers." Jennie, we've heard a lot about the expedited docket here on the Texas case, references to Bush v. Gore. What is the rush here? I know we've heard about the harm and the damages, but it is unprecedented the way this case is coming through so quickly. And, is there any linkage in that? Anything predictive of Dobbs? Or are these cases completely separate? And what are the consequences you thought, given the speed at which this is being briefed and heard, that we might get a quick decision? Does that mean anything, with regard to Dobbs?
Jennifer Lichter: Yeah. Great questions. Dobbs is obviously the 1,000-pound gorilla, if you will, that's kind of casting its shadow over these proceedings. And I have to -- it's almost funny, in sort of a sad and, presumably, frustrating-to-the-Court way, that they were so meticulously deliberate about whether, and when, to grant Dobbs. This is just -- for anyone who's not following closely, Dobbs is a case that will be heard next month out of Mississippi. And the question presented is whether all bans on pre-viability abortions are unconstitutional. Roe and Casey are directly on the table in the Dobbs case. That petition was filed ages ago, but the Court sat on it. And then they relisted it, I think, 11 or 12 times before they finally granted it.
So, they thought long and hard about whether to take the Dobbs case, when to take it, under what circumstances. Now, their careful planning has been sort of blown to pieces by this sort of insertion of these cases coming out of Texas, where, again, the Court has deliberately declined to address ⸺ or they indicated they're going to decline to address ⸺ the constitutionality of S.B. 8. But the question is there. And, as Andy said, these cases, technically, are about things like standing, and justiciability, and sovereign immunity, and equity. But they're really about abortion. They're about the availability of abortion in one of the biggest states in the country. That's why these cases are such a big deal.
I can't imagine that the Court is happy about having to issue a decision in these cases before they hear Dobbs. But it certainly seems like that's what they're doing. There wouldn't have been such a rush otherwise. In terms of what they're going to do, it's a little hard to read the tea leaves here. They declined, as I said, to block the law, again. They declined, again, to block the law.
So there certainly is a majority that's treating the fact that abortions, currently, are generally not happening in Texas. They're not treating that like a five-alarm fire. But they have something they really are in a hurry to say. Now, what is that? My guess is that Texas is going to get away with this, so to speak, to some degree. I think the private plaintiffs will probably lose. They have a pretty uphill battle there, in terms of the sovereign immunity issues, who's the proper defendant, all of the things that Andy mentioned.
But I have to think that the Court -- there might be enough sort of pragmatists ⸺ if you want to say that ⸺ on the Court, or institutionalists on the Court, that they're going to want to find a -- it feels macabre to say, "a split-the-baby approach," in this circumstance. But, again, kind of a pragmatic approach, where this law feels wrong to many people, presumably. And I think they're going to want to find a way -- that there might be enough people on the Court who are going to want to find a way to stop this law from being enforced, at least for now, at least until they can figure out what they're doing with Dobbs.
And then maybe this will come back around, somehow. But I suspect that the Court might find a way for the United States to be able to proceed again, just on the basis that this law is so unprecedented, it can't stay in place. And then we'll see what grounds they choose. But I guess that's probably what they're going to do. I'd love to hear what other people think. It's very hard to figure out exactly how this is going to fall.
Dean Reuter: Beth or Andy, anything on either of these points, what's been said sort of here, in response?
Hon. Beth A. Williams: Nothing too much additional, Dean. I would just say, to your question about whether there is something going on with regard to the Supreme Court kind of chastising the lower courts to follow them, I think that's probably nothing that's too new, as far as these en banc decisions, and the denials of rehearing en banc, and the dissents from denial. That's been a pretty traditional way for some judges to wave their hands to the Supreme Court saying, like, "Hey, this is a big issue. You should take this."
And different circuit courts have dealt with it differently. At the court where I clerked, in the Second Circuit, they famously almost never take cases en banc. And Justice Ginsburg would come to the conference and say, "Please. Please take some cases on banc. We're not your error correctors. You can correct some stuff yourself." Other courts take more cases en banc, and I think the Supreme Court is happy to see that. But also it's helpful if the full Court en banc can at least write some dissents from denial so that they can see the issues better that are being considered, especially when it's a unanimous panel.
Andrew J. Pincus: Yeah. Just quickly on the S.B. 8, the Texas abortion law. You wonder whether part of the impetus for granting here wasn't some of the criticism out there about the whole shadow docket issue, and the Court issuing very tight and not fully explained decisions in its emergency rulings. And the desire, maybe, given the significance of this case, and the fact that the United States was asking to not dispose of the United States' request that the Fifth Circuit's stay be overturned, and the preliminary injunction entered, [inaudible 01:20:03] without having full briefing and argument. So that could be part of the impetus. You'd think that would lead them to want to issue a decision quickly. Because the question about whether the preliminary injunction will be operative is sort of out hanging out there. But, as I said, the case has a lot of difficult issues. So it's hard to tell.
One interesting point about the private lawsuit. This kind of law is not unique for those of us who practice in the corporate realm. California has a law called SB-707 that involves arbitration, an area I operate in a lot, that is not enforced by the state. But it is a law that targets arbitration ⸺ the drafters of arbitration agreements ⸺ for penalties that don't apply to the drafters of any other contract. And, clearly, the theory of the law was, by not having any government enforcement, there wouldn't be a 1983 action available to claim that that law was preempted under the FAA. And so there hasn't been a pre-enforcement review, and that the FAA is being set up as defensive. So, to the extent that I wouldn't want people to get the idea that this is just a concern that involves sort of prominent social issues, I think ⸺ to the extent this gambit is upheld ⸺ it has a lot of spillover effect, broadly.
On the gun issue, I think David said there is just a lot of rich history on both sides in the amicus briefs in this case. New York and the SGs office talk about the history of concealable handgun laws, about concealable handguns, and the ability to carry them, in the West and different places. I think it will just be very interesting to see how the Court grapples with this mishmash of history, and what it comes up with, in terms of what's permissible.
On the First Amendment, there are tiers of scrutiny. I think everybody's recognized that speech is a broad area, and there has to be some regulation, and there have to be some standards for dealing with it. And so, whether you call it tiers or what, I think Beth's discussion of the sign case tells you that every regulation of speech is probably not going to be subject to strict scrutiny. And that may be true of every regulation of guns for a similar reason. But, I think we'll find out.
Dean Reuter: For, I suppose, David or Jennie, or anyone else -- what about Andy's point that the Texas statute, the way it's constructed, you could substitute, maybe, guns in there for abortion rights. And so this, what's good for the goose is good for the gander, more or less. Is there agreement that that sort of structure and construction could be used for other laws?
David H Thompson: Others have thought about -- on this panel, have thought about this issue more than I. But it has seemed to me that one of the issues in Texas is, because of Dobbs, there's some real uncertainty about what the law is. If you are in, for example, the Second Amendment realm, and somebody tried to do this -- as long as you knew what your Second Amendment rights were, then, if you were a gun store, you just continued selling your handguns, because you won't be worried about this unconstitutional law. You might be sued by a private party, and then you'd say, "I have a constitutional right to do this, and I'm not worried about it." So I think it's the combination of this unusual structure, number one, and the uncertainty of Dobbs, that creates the chilling effect that we're seeing in Texas.
The other point I would make, historically -- and I apologize to the federal courts gurus on this panel, if this is a bad point, but, my understanding was, until 1875, there was no federal question jurisdiction. And, until 1908, Ex parte Young didn't exist. So, in terms of breaking norms, this may be going back to the founding, as opposed to breaking a norm -- what Texas is doing.
Dean Reuter: Well, let me ask a question. Jennie, you didn't come off mute, so I assume you're passing on this question, which is fine. Going back to personnel ⸺ and, maybe, originalism ⸺ we've heard a couple of you mention changes in personnel, and what that might mean for the cases you've covered. Jennie, in particular, you mentioned, in the Ramirez case, the places to which originalism might take some folks. It reminds me -- it has some echoes of Justice Scalia's jurisprudence on Fourth Amendment and search and seizure, etc., etc. Does anybody want to talk about the changes in personnel, and the effect those changes might have on their particular cases being decided ⸺ or being argued, I guess ⸺ next sitting?
Hon. Beth A. Williams: Sure. Well, I would just say, I think that the number of justices now who identify themselves as originalist, or as leaning originalist, has certainly increased, and that that has affected the briefing. You see it very clearly in the Second Amendment briefing, but you also see it in the briefing by the Solicitor General's office in the censure case out of Texas. Because, you, I think, have a lot of justices who are interested in knowing what the traditional and historical roles of legislature's ability to censure was. What was it, going back? Did legislatures censure their members all the time? Was that allowed? Was that challenged? And, so, you have a lot of interest in how these practices were, how they existed at the time of the founding. And so, that has definitely affected the briefing, certainly by the Solicitor General's office, and also by the parties.
Dean Reuter: Andy, you've come off mute.
Andrew J. Pincus: Yeah. I'm probably the oldest person on this panel. So, when I started in this business in 1984, when you were briefing statutory issues, you might not start with the text. You might start with the purpose, and what the Senate report or the House report said, if you were dealing with a federal statute. That's certainly not true anymore. And I think, as Beth said, that's not true, with respect to many constitutional provisions. But I think what we're learning is that history is much as textualism, although it sounds like, "of course, the text. There must be a clear answer." As Justice Alito said about one of the cases that was argued in the last session, how do I -- this is like the hardest textual puzzle I've ever come up with. It's hard to figure out what these words mean.
So there's a lot of judgment ⸺ judging and judgment ⸺ that goes into textualism. And I think we're going to find out, as more parties mine history, that there's a lot of judging and judgment that goes into history.
Dean Reuter: It sounds like you're not an unreserved fan of textualism, Andy. Is that a change you welcome, in retrospect? Or is it just unmanageable? I'm curious.
Andrew J. Pincus: No. I think you have to start with the text. I think that's a sensible change. I think text and context is very important. I think looking at words in isolation in dictionaries just is not going to supply what you do. I've had the opportunity to do some legislative drafting, and the number of unanticipated issues to which laws get applied, is very, very large. And so the idea that the text, by itself, is going to answer all of those things is very unlikely. Because text is ambiguous. That's just a reality. And so, I think -- although it has to be the starting point, I think making it the ending point, and not having a rich examination of what was going on, and what did the legislature try to -- what was it trying to accomplish with this provision, is a really essential additional component for that kind of analysis.
Dean Reuter: Jennie.
Jennifer Lichter: Thanks. So, I'll just add a couple of things. As I mentioned, Justice Barrett surprised me, maybe surprised some others, by joining Kagan, Breyer and Sotomayor ⸺ by putting her name on their concurrence, I should say -- not just joining, but putting her name on a concurrence ⸺ explaining why they were blocking the execution of a prisoner who had a religious liberty claim that wasn't being properly addressed.
Now, that's not -- in that case, her swapping in for Justice Ginsburg is not outcome changing, because Justice Ginsburg previously had joined the three other liberals in similar rulings and similar sorts of opinions. In that instance, the outcome doesn't change. Now, Barrett swapping in for Ginsburg obviously did make the dispositive difference, presumably, in the Dobbs case appearing on the docket, and in the Court's willingness to just take on Roe and Casey head on, which the pro-life movement has been trying to achieve for years and years, and have never gotten a case like that on the docket.
But the other thing to think about is that the justices ⸺ we often talk about them ⸺ the liberals, the conservatives, the voting blocs -- but the justices in their individuality. I think, sometimes, their own backgrounds, their own experiences, can make a difference too. And, in the execution chamber case, in Ramirez, one thing, I think -- and it's a minute point, but it's so interesting, thinking about Justice Barrett, in particular.
The facts behind this exhaustion question about whether Ramirez exhausted his requests for audible prayer by his pastor, are this: he undoubtedly asked for his pastor to be able to pray over him in the execution chamber. Texas said, "You didn't ask for him to audibly pray over you. How did we know that you were asking for him to be able to speak in the chamber?" And then they clarified that in an email, kind of just before he filed his federal suit. That's the nub of the exhaustion claim. Texas says, "You should have said that a long time ago, that that's what you were asking for."
Ramirez, who is a Baptist, and has a Baptist pastor attending to him, says "Why would I have to specify that praying over me meant audible prayer. That's what praying over you is. There's nothing else that could mean." The state of Texas says, "That's ridiculous. There's all kinds of indications, and all kinds of contexts, where people ask for prayer or to be prayed over. And they're talking about silent prayer.
Now, that's not the kind of question that a legal text can resolve, or probably even a religious text. But Justice Barrett's particular religious background, her deep faith, and her membership in a religious community that involves a lot of communal prayer, -- it would be so interesting to be able to just ask her, "When someone says, 'I'm asking to be prayed over, what does that mean to you?'"
So, whether this ever appears in the opinion, I think that's just one small example of sort of a bigger phenomenon that's going on behind the scenes in ways that we might not always even be aware of -- is how the justices come to these cases with their own particular experiences. And here, again, what does it mean to ask to be prayed over, is just an interesting thing to think about.
Dean Reuter: Great stuff. We are at the 90-minute mark, as advertised. So I want to end by thanking the panelists. This has been terrific. I really appreciate your time. And I know you had to read up on some of this material. So thank you for that, as well.
I want to thank the audience for joining us. And a reminder to the audience to monitor your Federalist Society emails and our website for future events. Notably, we'll return to this forum in late November, looking at the December docket, the December sitting. Nothing going on in December, as we've established. But, until then, we are adjourned. Thank you so much, everyone.