The Supreme Court held its “Long Conference” on Tuesday, October 1. That’s where it considers all the petitions for review that had been filed while it was on summer recess. Typically, a good portion of the Court’s docket for the upcoming term is decided at that Long Conference, and an assessment of the cases that the Court decides to take, those that it declined, and those that remain on its conference list for further consideration, will give us a very good sense of the hot-button issues that the Court will consider as the 2020 Presidential election heads into full swing.
Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service and former Dean, Chapman University's Fowler School of Law; Senior Fellow, Claremont Institute
Prof. David F. Forte, Garwood Visiting Professor and Visiting Fellow, James Madison Professor, Cleveland-Marshall College of Law
Mr. Mark Miller, Senior Attorney, Pacific Legal Foundation
Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Federalism & Separation of Powers Practice Group, was recorded on Tuesday, October 8, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to The Federalist Society's teleforum conference call. This morning's topic is on the October Term 2019-2020, the long conference of the Supreme Court. My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call.
Today we are very fortunate to have with us Dr. John Eastman, who is the Henry Salvatori Professor of Law & Community Service and former Dean of Chapman University’s Fowler School of Law. He is a Senior Fellow at the Claremont Institute and Chair of the Federalism & Separation of Powers Practice Group at The Federalist Society. Also with us is Professor David Forte, who is a Professor of Constitutional Law at Cleveland State University’s Cleveland-Marshall College of Law. Also with us today is Mr. Mark Miller, who is a Senior Attorney at the Pacific Legal Foundation and is a member of the Board of Directors for Americans United for Life.
Thank you very much for sharing with us today. Dr. Eastman, I believe the floor is yours to begin.
Dr. John Eastman: Thank you. And thank you all for joining us today. The long conference of the Supreme Court, called long because it takes them a long time to review all of the cert petitions that have been filed and pending during the course of their summer recess. They came back last week, and they sat and decided -- slogged through the whole list of probably several thousand petitions, at least a thousand of them. And they gave us three grants of certiorari, which is, I think, uncharacteristically low for the number of cert grants coming out of the long conference. But a couple of those are very significant, and we’re going to talk about those in a broader context of what this term might look like. It’s starting to look like it’s going to be a very significant term at the Supreme Court.
So with that, let me turn to David Forte who’s going to take the lead on talking about the cases that were granted cert. There are two of them, parallel cases, out of Louisiana. David, if you will take the mantle.
Prof. David Forte: All right. These are significant cases. They are cross appeals, cross requests for cert by an abortion clinic and by the State of Louisiana. The one the one by the abortion clinic, the title is June Medical Services v. Gee. And this is a law in Louisiana that requires admitting privileges for doctors who are at abortion clinics to be admitted at a local hospital within 30 miles.
As the Court admits, the bill is fairly indistinguishable from a Texas bill that was struck down two years ago on a 5-3 vote. That Texas bill was struck down in a case called Whole Women’s Health v. Hellerstedt. Now, what Hellerstedt did with Breyer and the majority, and Breyer likes to do this with his administrative law background, is they used a balancing test to determine whether the effect of the law would be to impose an undue burden on the woman seeking an abortion. So Gee adopts this balancing test but changes it slightly, looking at previous appeals courts and Supreme Court decisions. It measures whether a burden of the law on a woman would be significant if it’s a burden on a, quote, unquote, “large fraction” of women seeking an abortion.
Now, this contrasts with Casey’s original undue burden test, which was whether the burden or effect of the law -- whether the purpose or effect of the law was to place a substantial obstacle in the path of a woman. Right now, the balancing test seems to be whether the effect, not the purpose, which was Casey’s rule, is on a large fraction. Now, as the court said in the Fifth Circuit, unlike the Texas bill, in Louisiana, a doctor does not need a minimum number of patients who have been admitted to the hospital to attain admitting privileges.
So what the court did in the Fifth Circuit was uphold the Louisiana law because its impact was significantly less and different from the Texas law. In Texas, out of 40 clinics, only 7 or 8 would have been allowed to continue, according to the court in the Hellerstedt case. According to the court in the Fifth Circuit in Louisiana, which has only three operating abortion clinics, none will have to close. And all three have indicated, all three hospitals in the area, have indicated that they would be willing to extend admitting privileges.
Now, believe it or not, there are only four doctors in Louisiana who perform abortions. Apparently, they do this day by day. On appeal, the abortion providers contest the conclusions, saying that only one doctor will be granted admitting privileges, but the court disagrees on that.
The Court also granted a cert on a cross petition called Gee v. June Medical Services that is maybe an even more significant case. And what Gee v. June Medical Services requested the Court to do was to revisit the question of third-party standing for abortion clinic and pro-abortion entities in cases dealing with abortion legislation. Third-party standing has been part of the fabric of abortion litigation since Singleton v. Wulff over 20 or 30 years ago. The rule for granting third-party standing is that the third party, quote, “must show that the interests of the third party are aligned with those they purport to represent,” namely, the woman, “and that there is some barrier preventing the actual right holders,” the woman, “from asserting their own interests.”
Now, Louisiana asserts that there is a conflict of interest between the abortion clinics representing pregnant women who challenge a law that seeks to protect pregnant women from harms potentially done by abortion clinics. Third-party standing is always questionable in jurisprudential analyses of Supreme Court. It’s strong in the First Amendment area, but it essentially means that people who are not directly involved are able to obtain prudential third-party standing to context a situation. Over the years, this has allowed virtually all abortion legislation to be contested by abortion clinics or by other entities such as the ACLU, permitting them to gather lots of money when they win and regain lawyer’s fees.
This may very well be a case that Chief Justice Roberts will enjoy because he enjoys procedural rules. And this may very well be a case that Brett Kavanaugh could join without looking like he’s overruling a precedent but merely extending what should be appropriate third-party standing to the abortion area.
Now, these petitions come on the heels of what we all have seen has been a coordinated attempt, not centrally coordinated, but a coordinated attempt to intimidate Justice Kavanaugh and Chief Justice Roberts from approaching the abortion decisions. As we saw, the second attempt to besmirch Justice Kavanaugh’s character by two reporters of the Supreme Court has fallen flat, but not before some Democratic leaders reflexively called for his impeachment. This, of course, brings to mind Jefferson’s attempt to begin a purge of the Supreme Court, starting with the impeachment of Justice Samuel Chase.
At the same time, there’s an equally unsubtle program of intimidation of Chief Justice Roberts, appealing to his well-known desire to maintain the independence and integrity of the Court. For example, five Democratic senators filed a brief in the case of New York State Rifle & Pistol Association v. City of New York. That’s a case coming up now, Second Amendment case, and said in the brief, “Perhaps the Court can heal itself before the public demands that it be restructured in order to reduce the influence of politics.” That’s a threat for court packing, which has also been enunciated by Democrats.
Also, Professor Noah Feldman and Laurence Tribe have in effect told Roberts not to take any major abortion cases. Tribe has warned, quote, “that the Court’s judicial muscle-flexing is potentially lethal to the credibility of the Supreme Court as the least political civil institution of the government.” And on the Court, we know that Justices Kagan and Breyer are leading an explicit effort to give stare decisis a trump over any attempt to align Supreme Court doctrine with original understanding, and Justice Thomas is just as vigorously pushing back.
So the question we have in the Gee case is how will Justice Kavanaugh go? On the one hand, he went out of his way in his hearings to call Roe and Carey a precedent upon precedent. And in oral argument on Gamble v. The United States, that’s the Fifth Amendment double jeopardy case, he went out of his way to compliment Justice Kagan’s defense of stare decisis. And at oral argument, Justice Kavanaugh said, “Stare decisis is a principle rooted in Article III. It’s a doctrine of stability and humility that we take very seriously. And with the bar that you have to clear,” I believe he says to the lawyer, “you have to show not that the precedent is wrong, but to show that it’s grievously wrong, egregiously wrong.”
What troubles me about Justice Kavanaugh, he seems to preemptively surrender when he doesn’t need to. On the other hand, he wrote a dissent when the Court was considering to grant a stay in February on the Louisiana law to determine whether the law should go in to effect pending litigation and appeals process. Chief Justice Roberts joined the full liberals to grant the stay, so the law did not go into effect. But Kavanaugh wrote a dissent. However, in the dissent, he pointed to Whole Women’s Health v. Hellerstedt as the controlling precedent and said that the Louisiana law could only be held if its application was different from the Texas law.
So where does that leave us? Well, the Supreme Court could uphold the Louisiana law as different from Hellerstedt, and in that case, there’s a price to be paid. Hellerstedt’s only a two-year-old precedent, and if the Court ever wants to revisit Roe, how is it going to argue that it’s going to obey a two-year-old precedent but overturn a fifty-year-old precedent? So there may be a price to pay on that.
I think that’s likely the result. It will uphold the Louisiana law. And it won’t do much because if the doctors can’t get admitting privileges, they can always bring an as-applied challenge later. What I do think the Court will do is deny third-party standing. So I think those are probably the two results that we will get. Those are my predictions, which are often wrong, that the Court will uphold the Louisiana law but not overturn Hellerstedt, and there will be a price to be paid down the road for that, but will reduce third-party standing hoping to reduce the kind of cases that are brought before the Supreme Court. So that’s my intro to that case, and we can talk much more about it.
Dr. John Eastman: And before we turn to the next big cast on the cert grant list, let’s have a discussion amongst ourselves about that. David, I want to address -- it seems to me that if the Court took the minimalist step of saying this is different than the Texas case, Hellerstedt, and therefore, we don’t need to reach whether Hellerstedt needs to be revisited, we’ll distinguish it, it may minimize the long-term potential negative consequences of not overturning Hellerstedt right now. Do you agree with that?
Prof. David Forte: I don’t in the current context, John. The current context with Justice Kagan, in case after case after case, and Breyer trying to raise stare decisis to a superior authority to the Constitution itself, for the Supreme Court to duck in overturning, easily, a two-year-old precedent, I think it merely feeds into that narrative of Justice Kagan’s. So I don’t think it will be -- I think it will be a negative effect. I think they should take -- after all, Chief Justice Roberts dissented in Hellerstedt, and I think he should take the road of overturning Hellerstedt. Kagan, of course, will blow up, but that’s okay. It’s only a two-year-old precedent.
Dr. John Eastman: This discussion about stare decisis, of course, affects every case that comes forth from court these days. Even yesterday, the first day of oral argument on the term, I think it was in Kahler v. Kansas, which deals with Eighth Amendment challenge to a state abolishing the insanity defense, and the criminal defendant’s lawyers there were arguing that existing precedent be overturned. And Justice Alito from the bench pointed out how he and his colleagues had been excoriated by some of the left side of the bench. So discussion about stare decisis seems to be a bit phony. They don’t have any problem overturning precedents they don’t like. They just want to keep precedents they do like kind of untouchable.
And so we’ve got this disconnect in the ongoing conversation about stare decisis. Even the grand Planned Parenthood v. Casey case, which Justice Kavanaugh called precedent on precedent, that case significantly altered the existing precedent of Roe v. Wade in a number of ways shy of actually overturning it, and yet everybody, all hail to Planned Parenthood v. Casey. So there is an overt politicization of the use of stare decisis.
What Kavanaugh said during his confirmation hearings about it’s grounded in humility I think is right. We don’t lightly overturn the considered judgements of our predecessors, both for stability grounds but also the notion that the law needs to have some fixed meaning. But it never until recently meant that we keep in place patently wrong decisions that are having absolutely negative consequences when they were issued by a Court that felt less constrained by its own constitutional limitations than the Founders envisioned and that we have returned to. So I think this is a very healthy debate about stare decisis.
I’m intrigued as well, and maybe we can bring Mark into the conversation, just a little bit of inside baseball here. These were not two separate cert petitions that were filed. There was a cert petition filed by the abortion clinics challenging the Fifth Circuit’s decision upholding the Louisiana law. And then there was a conditional cert petition filed by the State of Louisiana, which won in the court below and said to the Supreme Court, “Look, if you take this case, we want you to also address these two significant other issues. Do these clinics have third-party standing to bring the suit on behalf of the women, and second, because we didn’t raise that below, is this a waivable defense so we can’t bring it?” And the Court granted on both of those. I think that’s significant.
You’re right to point our that our third-party standing doctrine is much tighter than it’s applied in the abortion context, perhaps just yet another example of what Justice Scalia famously called the “abortion distortion” in our law that we will create different rules, different exceptions from our normal requirements and procedures when the case involves abortion. And I think this can be a huge development if the Court confronts that.
But let me ask this: Do the abortion clinics have standing themselves to challenge the rule that they have to get admitting privileges, and if so, could the Court, or would the Court likely be willing to say they don’t have standing to press that this is an undue burden on the abortion right? They do have standing to press whether it restricts their own conduct of business, and that would take this out of the broader abortion fight, which may be what one or two of the Justices would like to see happen. Is there a way to parse that that might be open for the Court to do? I’m not encouraging them to do that, but I can see if they’re trying to avoid the issue, that might be a way they seek to do it.
Mark Miller: I want to follow up on what you’re saying, John, and then with David on that third-party standing. If the Court were to say that the medical services here did not have standing, what does that mean for the case? Would that be a different way, analogous to what John’s saying, but a different way if they say, “No, there’s no standing because the interests are not aligned.” Doctors like Kermit Gosnell or Ulrich Klopfer, who we just learned about in Illinois and Indiana, they don’t have the same interest in women’s health that the women themselves do, and so there is no third-party standing. If the Court were to adopt that position, what does that mean for the case? Does the case then get dismissed altogether?
Prof. David Forte: Yeah, they would duck the issue of whether they have to overturn Hellerstedt, the two-year-old case. And they may very well because Roberts does not want to stick the Court out and make it, I presume from his actions in the past, to make it an issue in the 2020 election, although I don’t see how he can avoid it. But that may very well be, Mark. That’s a good insight that they will simply deny standing to the abortion clinics, and therefore not reach the substance of the case at all.
Dr. John Eastman: Let me push on that a little bit further because the requirement in the Louisiana law, as in the Texas law, applies directly to abortion doctors. It imposes a licensing requirement on them. At least in the non-abortion context, our standing doctrine says you have to have standing to raise each of the legal issues you raise in your complaint, or each of the counts. So it could be possible.
They could say, “Oh, you want to treat this as a licensing place? Yeah, you have standing to raise that, but you don’t get to argue that it creates an undue burden on women because you don’t have standing to make the claims on their behalf, and they’re not parties to this litigation.” That would keep a Fifth Circuit decision upholding the law in place but without reaching the abortion question. And it would clarify that our standing doctrine applies as much in abortion context cases as it does in every other case.
Prof. David Forte: That may be because the Fifth Circuit went out of its way to describe that the process of getting an admitting privilege for abortion clinics was significantly different from in Texas. So for example, in Texas, the court found that the credentialing process, that is, the hospital’s requiring that the doctors prove that they have certain competencies, was virtually nil. But in Louisiana, to get an admitting privilege, you have to show the hospital in good faith that you have certain skills that would permit you to be admitted as a doctor who has ongoing admitting privileges.
The second thing about the Louisiana law which is different from Texas is that in Louisiana, all ambulatory surgical centers, outpatient surgical centers, need admitting privileges too. So this makes them no different from what they’re asking the abortion clinics to do. So I can see that that profile that you’re thinking of, John, that the clinic’s standing would be upheld, and that the Louisiana law is perfectly fine in regard to their requirements. But the abortion issue is shunted off for another day.
Dr. John Eastman: And that reiterates our standing doctrine. You’ve got to have standing for each of the claims you bring, and if these doctors are bringing a claim on behalf of women who are not parties to the case and who may be adverse to the doctors, given the nature of the requirement here, I could see them parsing that as a way.
Let me take up the broader question, though. Robert’s trying to keep the Court out of high-profile cases as we go into an election year. I think there was certainly something of that going on last year. We’ll talk about the Gundy case in a minute, which is still pending but was up and decided last term. It’s pending again on a petition for rehearing. It looked like they were kind of punting a lot of big issues down the road. Those cans are now before us.
We’re having argued at this moment that the trilogy of cases dealing with sexual orientation and gender identity and whether we can modify the statutory text adopted way back in 1964 to include new controversies over sexual orientation and gender identity discrimination or classifications. That’s certainly a big culture wars issue going right into an election. We have the DACA cases that are going to be argued shortly, whether President Obama’s guidance memo from his Secretary of Homeland Security launching the DACA program can be repealed as a matter of prosecutorial discretion by the next successor President or whether it’s locked in place forever. That’s certainly a big, controversial case. And the one we’re going to turn to in a minute that was granted cert last week on an immigration statute has the risk of being a fairly controversial case, as does the New York Rifle Association case you mentioned.
So it looks like they kicked the can down the road a little bit last year, but this is starting to shape up like one of the bigger terms in recent memory with controversial issues like abortion, like gender identity, like immigration and the political fights over that. I’m not sure Roberts is going to be successful in keeping the lid on the politics of this thing.
Prof. David Forte: That may be so. How do you see that, Mark?
Mark Miller: Well, I was going to say consistent with all those cases, another hot button culture war kind of case, John, would be the school choice case out of Montana, pretty much frames the Blaine amendment in terms of tax money that’s theoretically going to private schools or private religious schools. So again, a couple years ago out of Missouri, Trinity Lutheran, Chief Justice Roberts was able to try and finesse it so it didn’t look like they were commenting directly on a hot button political issue but rather it was just trying to be fair to private religious schools there with the playground equipment. But this case, it will be more difficult for Chief Justice Roberts to finesse, although my hat is off to him and to his ability to finesse hot button issues and kick the can down the road, and so maybe these will just be some of his best examples yet of doing this.
Dr. John Eastman: Mark, explain the case for the listeners.
Mark Miller: The case out of Montana involves a law that was put into place to allow for scholarships to be used, and correct me, John, if I’ve got it wrong, but basically to allow the parents to decide how to use tax money for where their kids should go to school, which would include to go to private religious schools. And then the administrative agency in Montana said, “Well, this money, according to our state constitution, cannot go to private religious schools because we have the so-called Blaine amendment,” which are amendments in the state constitutions, really, throughout the country in any number of states that prevent government money from going to private religious schools. And they’re called Blaine amendments because back in the day, these amendments were intended to make sure that Catholic schools did not get any funding from the state. And so they were arguably, at least one side will tell you, that they were predicated on bias going back to even pre-dating Pierce v. Society of Sisters, the idea that Catholics were personae no gratae.
And so here, the Supreme Court took a case, somewhat surprisingly, from the Institute for Justice where the Blaine amendment issue, which has been an issue that the pro-school choice movement has been pushing for a couple of decades, is front and center. And again, my hat’s off as a Pacific Legal Lawyer, to my colleagues at the Institute for Justice for getting this issue to the Supreme Court.
Dr. John Eastman: That one has been granted. It’s being briefed now. It’s not yet set for oral argument. We probably will see it in December or January. It’s called Espinoza v. Montana Department of Revenue. And it really is -- the Supreme Court a decade ago now in a case called Locke v. Davey confronted another one of the many Blaine amendments, the state Blaine amendment cases and didn’t reach the issue of the overt anti-Catholic bias that underlay the adoption of these amendments at the state level back in the mid-19th century. And now we’ve got it front and center. So I’ll be very interested.
Again, a very highly contentious issue that divides largely along partisan political lines, but very significant legal substance. And it’s also a challenge to one of Justice Scalia’s more famous and notorious decisions in Employment Division v. Smith, whether generally applicable laws avoid heightened scrutiny for religious liberty claims. And so all of this is kind of tied up and could be a very significant case as well.
Prof. David Forte: John, this wouldn’t be much trouble with Smith now because of Babalu Aye case. I mean, this is an overt anti-religious action. It’s not a generic action. It’s right in the face of the law. So I don’t think they’d have troubles with Smith, overturning this and still leave Smith intact.
Dr. John Eastman: Yeah, you’re right. But I do suspect that we would get some added discussion in concurring opinions, or what have you, because it seems that Smith is on the table in a way that it hasn’t been since it was decided nearly 30 years ago. And this case -- I would not be surprised to see a couple of the Justices inviting more clearly the interest in revisiting Smith, using this case as a vehicle.
All right. Let’s turn to the other big cert grant. We’ve got two others we’re going to talk about; one, I think, relatively minor. We’re still all trying to figure out why the Court granted it, but let’s take the other one, United States v. Evelyn Sineneng-Smith. And the issue here is whether a federal immigration statute that prohibits inducing illegal immigration or encouraging illegal immigration is an unconstitutional violation of the First Amendment.
Evelyn Sineneng-Smith was running quite a racket with illegal immigrants. She would charge them $5,900 each for her to file paperwork for an application for them to get a Department of Labor certification for lawful work status to a program that had been cancelled by the Department of Labor 10 years earlier. And yet, she continued to prey on these unsuspecting illegal immigrants to pay her this massive amount of money. And as a result, she would then induce them to stay illegally in the country pending the review of their application.
This was both a mail fraud but also a violation of Federal Statute Section 1324 of Title VIII of the U.S. Code that prohibits this kind of thing, this inducement. And I’ll read you the statute because I think the importance of this case is not just a question of statutory interpretation. The Ninth Circuit, of course, held that the statute was an unconstitutional infringement on First Amendment rights, and that’s what it was granted on.
But the political ramifications of this case are huge because as you know, we’ve got a number of Democrat candidates for President who have been visiting the border. A couple of them have actually directly facilitated cross-border crossings by illegal immigrants. They are giving them false information about how to avoid being immediately deported back by making false claims of refugee status in order to be able to stay in the country longer. And this statute could be brought to bear against any of them.
Just a couple of the passages of statue on how this applies, other parts of the same statute: “Any person who, knowing that a person is an alien, brings or attempts to bring them into the United States at a place other than a designated port of entry, or who knowing or in reckless disregard of the fact that an alien has come to, entered, or remained in the United States in violation of law, transports such alien in furtherance of such violation of the law, or knowing or in reckless disregard of the fact that the alien has come to, entered, or remained in the United States in violation of the law conceals, harbors, or shields them from the detection.”
And then the specific sub-passage here, “…encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” That’s a crime. If it’s done for purposes of commercial advantage or private financial gain, it’s a crime that yields 10 years in prison. If it’s not done for commercial advantage or private financial gain, it nevertheless still yields a prison term of not more than 5 years. So this is a significant felony statue that seems to have been underenforced in recent years, and Democrats going to the border to try and create high-profile attention on the illegal immigration controversy are routinely violating this law. And I think this case can really be rather significant about that.
And the Ninth Circuit held that the language “encourages or induces” necessarily involves speech, and therefore it’s protected by the First Amendment. I think this is a unique interpretation of the First Amendment that the Ninth Circuit gave us. What we seem to be seeing is an immigration distortion in our normal application of the law that applies here similar to the abortion distortion that we just talked about in the Gee case. I think it’s going to have some very big ramifications, and I suspect that the Supreme Court took this case to reverse the Ninth Circuit and to get back on track on what the First Amendment covers. And it doesn’t cover things encouraging people to commit crimes like this one has. And that’s been a long mainstay of First Amendment law for quite a while, but the Ninth Circuit held contrary here.
So I do think this is as rather significant issue, both for the actual criminal defendant in this case who appears to have just been engaged in a blatant fraud preying on illegal immigration or illegal immigrants. And I think that’s an important aspect of this. This is not an anti-illegal immigrant law. This is an anti-preying on illegal immigrants law that’s in our U.S. Code. And so there’s a little bit of a nuanced twist in who this law is designed to protect that can have some ramifications just in the narrative that comes out from the Supreme Court as well. When you take it out of the particulars of this case into the broader controversy that clearly is front and center in the 2020 election, as it was in the 2016 election, the whole notion of immigration policy, I think this can be a very big case before we’re done.
Prof. David Forte: Yeah, this case seems to fall right under those of us who are playing inside baseball, Holder v. Humanitarian Law Project. This seems to be criminal speech which is not at all protected by the First Amendment. I would think this is going to be an easy one for the Supreme Court.
Dr. John Eastman: Well, I would hope so. You would hope that it would be 9-0 slapping down the Ninth Circuit, but because of the overarching politics of it, you never can tell how the politics plays on the bench.
Mark Miller: I would agree. My though was, after reading up on the case after it was granted, it wasn’t so much that I was surprised it was granted as I was surprised it wasn’t granted, vacated, and remanded summarily because it does seem fairly -- it’s a fool’s errand to try and predict outcomes with this Court, but this one seems pretty predictable.
Prof. David Forte: What else do we have?
Dr. John Eastman: The blockbuster of the term that was granted last week as well, Atlantic Coast Pipeline, LLC v. Cowpasture River Preservation Association.
Prof. David Forte: Oh, yeah. Everyone knows about that one. Right. Yes.
Dr. John Eastman: Yeah. Mark, I’ll let you take the lead and give it the 1/10th out of 2000 percentage interest that it warrants.
Mark Miller: Yeah, exactly. I feel like I’m a movie reviewer who is following a movie review of Casablanca by then giving a review of Deuce Bigalow: Male Gigolo.
It’s a natural gas pipeline case, or actually, cases. There’re two cases here consolidated. There are any number of fights going on about pipelines throughout the country, cases that often involve important issues of private property rights and environmental law and how they intersect. And these cases all across the country are making for some strange bedfellows because you have environmental lawyers on the progressive side who are fighting against the pipelines, then you have the property rights bar who are trying to protect private property if it’s being -- whether the pipelines are indeed public use or public purpose.
But here, we don’t really have that because the issue is -- the question here is not about private property, it’s about public property. And the question presented in these cases is a, again, pretty bland question, whether the United States Forest Service has the authority under the Federal Mineral Leasing Act and National Trail Systems Act to grant rights of way through national forest lands that the Appalachian Trail traverses. And so as John alluded to, we have about a 600 mile long natural gas pipeline that was approved by FERC, the Federal Energy Regulatory Commission. And it’s going to run 21 miles, will run through national forests, and 1/10th of a mile of that 21 miles will cross the Appalachian Trail.
And so the National Forest Service manages the forests, but yet, it’s the National Park Service that manages the Appalachian Trial. So the National Forest Service approves the permits to allow the pipeline to go, I think it’s 600 feet under the Appalachian Trial, but then there’s an objection from these groups saying, “No, it’s the National Park Service as the manager of the Appalachian Trial who’s got federal authority to regulate the trail that should have been signing off on this, not the Forest Service.”
And so the Trump administration lost in the -- I think it’s in the Fourth Circuit, but it now takes the position in from the of the Supreme Court that its National Park Service may administer the trail, which means what we’re walking upon when we traverse the 2,000 miles of the Appalachian Trail, but not the ground below it. That still should remain with the National Forest Service. And that’s what your fight’s about, and if someone else can make that more interesting than me, my hat’s off to them. I think we should move on to the more interesting cases.
Dr. John Eastman: Yeah, let’s move on. We don’t even -- I’ve been looking at the case to try to figure out why they granted it. Is there some issue of deference to administrative rulemaking? Is there some issue to statutory interpretation that has broader impact? So far, I haven’t found anything like that. Maybe there’s something there, and as we dig further into the briefs and issue that would have warranted this rather than if the Supreme Court disagreed with a lower court decision, just going a summary and reversal. But we’ll see.
There’s one additional order that came out last week, and then still a pending case that was on the long conference calendar that has not been decided yet. I think we’ll wind up our discussion today with those two. The first is the order in the New York Rifle & Pistol Association case. This is the case dealing with Manhattan’s rule that you could not carry a firearm beyond Manhattan if you wanted to go to a gun range outside of the city. I’ve never understood this rule. I always thought the folks in Manhattan didn’t want guns on the island, and so blocking somebody from taking their guns off the island never made any sense to me.
But the Supreme Court has not taken up a gun rights case since McDonald v. City of Chicago. And there are a lot of open issues from McDonald, from the Heller decision as well, even as basic as what standard of review do we apply to city or state ordinances, state laws that restrict gun rights in some way? Is it rational basis review? The Court seems to have rejected that. Is it intermediate scrutiny or strict scrutiny because it’s a fundamental right? We haven’t decided that. We’ve also not decided whether it’s a right that even applies outside of keeping a weapon in your own home, which was the specific facts in the Heller case. And a number of lower courts have tried to limit Heller to that fact, even though I don’t think that’s a fair reading of the case.
But those remain open issues, and the Court has been ducking these cases for over a decade now. They finally granted review in the New York Rifle Association. And I think the lawyers on behalf of New York were very nervous about what that grant of cert meant, and they quickly tried to repeal the ordinance or modify it to moot the case to avoid an adverse Supreme Court decision against them. And then they filed a notice to the Supreme Court of that fact and asking them, the Court, to dismiss the case as moot. Mark, why don’t you tell us what happened last week with that?
Mark Miller: So last week, the Court decided not to decide that question of mootness. They said, “We’re going to go forward and have the oral argument.” I think it’s scheduled for December. “We’re going to have the argument on the merits, but also, we’ll take up this question of mootness at the oral argument.” And so like I said, they decided not to decide. It is a very important Second Amendment case, as you said, the first in a decade for the Court to take up. And certainly at least a few of the Justices, among them Thomas, have made clear -- he does not want to see the Second Amendment right treated as a second-class constitutional right. So certainly some of them, we know, want this issue before the Court, but whether this case actually survives that mootness challenge, we don’t know yet.
Dr. John Eastman: David, do you want to weigh in on that at all, or should we move to the one pending case that I think warrants our discussion as well?
Prof. David Forte: There does seem to be a general movement in scrutinizing regulations on the possession of guns or the use of guns in which intermediate scrutiny seems to be the favored test of appeals courts around the country. And I think sooner or later, the Court’s going to have to gloss that and see how far they want to go with the strict scrutiny or intermediate scrutiny on these regulations.
Dr. John Eastman: Yeah. I think Justice Thomas’s point in a couple of decisions now has been, “Look, it’s in the Constitution. It’s as much a fundamental right as the First Amendment freedom of speech. And because it’s a fundamental right, we ought to apply strict scrutiny. We applied lesser scrutiny not when the substance of the right is at issue, but just various, to borrow the language from the First Amendment free speech context, time, place, and manner restrictions are at play. So maybe you can have a fundamental right to own a gun, but you don’t have a fundamental right to take it in a place where there’s a heightened sense of security, like on an airplane.
Prof. David Forte: Exactly. Time, place, and manner is intermediate scrutiny. Yes. So it could be that.
Dr. John Eastman: Right. But that would not apply to the various restrictions on licensing that is really designed to shut down your ability to keep and bear an arm. California, we’ve had a couple of cases now that dealt with the right to carry a weapon outside your home, and they were putting barriers in it. Unless you had an exceptional need that you could prove for having a weapon with you outside your home, you weren’t given a license to carry. And that really goes not to a time, place, and manner restriction but a really -- imposing a burden on the exercise of the right itself.
You could see a lot of the similar kind of analysis that had been applied in the First Amendment context directly translate over to the Second Amendment. And I think that’s what the New York folks were nervous about, and that’s why they went out of their way to try and moot this case. I don’t think they did moot it. I think there’s still enough of a sanction from the existing regime that remains that the case needs to still be resolved. I think that’s where the Supreme Court’s going to go. But it’s interesting that they’re reading tea leaves at the Supreme Court about where they’re likely to go with the merits of this case that made them nervous.
So Gundy was a case last term dealing with the retroactive application of the sex offender statute. It was an issue about whether Congress had unlawfully delegated lawmaking power to the Attorney General. The Court decided it 5-3 that they had not. But Justice Alito was the fifth vote, and he made clear in his concurring opinion, opinion concurring only in the judgement, that he actually agreed with the dissent, but that would have made it a 4-4 case because Brett Kavanaugh was recused. It had been argued before he was appointed to the Court. And there’s now a petition for rehearing pending that was on the long conference last week, and they did not issue a cert deny or a cert grant in it. So kicking the can down the road, and that can is now back before them. And I think we’ll see what happens. Mark or David, do you want to comment on that, or do we open it to questions?
Prof. David Forte: I’m ready for questions.
Mark Miller: Agreed.
Wesley Hodges: Well, very good. Let’s go now to our first caller.
Caller 1: Thank you for that preview. It was enjoyable. I have a question about a case that is still pending. It was on the schedule to be decided at the long conference. They rescheduled it. I can’t tell from the docket for when. It’s Mann v. National Review. It’s not out of the Circuit; it’s out of the D.C. Court of Appeals. It follows the First Amendment and the district’s Anti-SLAPP statute. How do the non-Supreme Court watchers like myself interpret them kicking the can down the road on this case? Does it make it more likely it’s going to be granted cert, less likely? What are your thoughts?
Dr. John Eastman: Well, this is, I think, one of the changes in the way Chief Justice Roberts manages the Court’s docket from the way Chief Justice Rehnquist did. What we’ve seen increasingly is cases being relisted multiple times. Early on, that usually means they’re still trying to grapple with whether there are procedural problems with the case that would make it difficult for them to reach the merits that would warrant the Court’s review in the first place. They’ll relist for a couple of times just to make sure there aren’t any such procedural problems.
They really dislike having granted a case, then to have to subsequently dismiss it as improvidently granted. The acronym is DIG-ged, dismissed as improvidently granted. And it, they think, puts eggs on their face. It certainly puts egg on the face of the law clerks that worked on recommending that the case be taken. And so they try and avoid that. So we see a couple of relistings for that purpose.
The second reason you get longer numbers of relistings is somebody is really upset that they’re not taking their case and has told the Court that they’re going to write a dissent from the denial of certiorari. And so that takes a while to write the opinion. You’ll get relistings five, six, seven, eight times until there’s a dissent out. And so if you’re in that window where we’re in the first couple of relistings and not the seventh or eighth relisting, it’s hard to tell which of those two is going on.
But the third thing, and we’ve seen it a couple times now, some of these cases have been relisted sixteen, eighteen times, and then finally granted. Masterpiece Cakeshop comes to mind. There are a couple of other cases like that where there’s something more significant going on. For example, in the Masterpiece Cakeshop case, that was relisted so many times, one expected that somebody was doing a dissent from the denial, and then all of a sudden, they grant it. And my suspicion there is that Justice Kennedy was trying to grapple with two significantly conflicting lines of case law that he had been instrumental in developing over the years and trying to resolve in his own mind how he was going to solve that conflict and kept pushing it off as long as he could.
That kind of adds a new layer of why we get these relistings, and it’s hard to predict on the front end which of those three things is going on. That’s not exactly good advice for how to read the relisting on your particular case of interest, but I don’t have anything more than that to be able to offer you.
Caller 1: No, no. That was useful. I appreciate it.
Wesley Hodges: Next caller, you are up.
Caller 2: With regard to relisting and then also when they request the views of the Solicitor General, I think it’s—especially with the latter—but isn’t it true that once you get a relist, at least one relist, your odds go from the low single digits to maybe the high single digits at least? Is that kind of true? And then also for requesting the views of the Solicitor General, I assume the odds go way up there.
Prof. David Forte: Yeah, both of those are true because what you see after a conference is the list of denials. And the way it works is the clerks -- most of the Justices are in a cert pool where they share clerk duties to review the pending cert petitions. The clerks will write up a memo analyzing the case, what the issues are. Is it fact bound application of existing law? Guaranteed denial. Is there a circuit split that enhances the odds that it’s going to be reviewed by the Court, particularly if it’s an important issue rather than just a relatively minor one?
But any Justice then can send a note to the Chief Justice in advance of the Court conference saying, “I’d like to put this on the discuss list.” If you don’t make the discuss list, at the end of that conference, all of the cases that weren’t on the discuss list get denied automatically. So the Chief Justice will send a note around. “Here are the cases I think warrant being on the discuss list. Let me know if anybody has any others.” The Justices will then send, “Oh, I think so-and-so case ought to be on there.”
On any given conference, there are 100 or 200 cert petitions. Probably six or eight make the discuss list. The rest get denied cert. After the summer and the long conference, there are between 1,000 and 2,000 cert petitions, and we’re probably looking at 50 on the discuss list, and all the rest not. And they’re going to get denied cert. Those that make the discuss list and they’re not yet ready to grapple with whether they ought to grant cert or not will get relisted. And that will happen a couple of times. They’ll be on the discuss list for a couple of times. People will spend more time looking at it after the initial placement on the discuss list occurs, and then eventually they’ll take their vote and decide whether to grant cert or not. So that may take a couple of conferences to resolve that process.
But certainly, if you’ve been on a conference list and it doesn’t lead to a Monday list on orders of cert denies, somebody at least is thinking about whether this case warrants consideration. You’re out of the mass of cases that get denied pretty routinely, and you’ve got people at least looking at it, so that certainly helps. And multiply that by ten when the Court calls for the reviews of the Solicitor General.
One of the things that most people don’t know about Supreme Court’s docket: They will never grant cert on a case where there’s not been an opposition brief filed. If you don’t think your case warrants cert and you’ve won below, don’t file an opposition brief. If the Court disagrees and they think this might be worth their consideration, they will call for your response. Or if it’s a case that involves some issue of interest to the federal government itself, they will call for the views of the Solicitor General, and then those will be added to the mix before they decide whether to grant or deny review.
So that call from the Court says, “We think this may potentially be a case that warrants our review. We want to hear from you.” That’s a pretty good indication that they’re looking at it very seriously, but again, not dispositive that they’re going to take it. They may see the response and say, “Oh, yeah. Now I understand why we don’t need to bother with this case.”
Wesley Hodges: Well, very good. Thank you so much, caller. Now is a good time to turn it back to our panelists and see if they have any further things they’d like to discuss or any closing remarks. John?
Prof. David Forte: Yeah, I’d like to make a final remark regarding these abortion cases. What we’re seeing in the country is an unprecedented movement snowballing to knock at the Supreme Court’s door to finally undo the harm that Roe v. Wade did, not only to the notion of human rights but to the Constitution and the structure of the judiciary itself. The number of laws of heartbeat legislation, I think, were up to eight states, if not more.
Sooner or later, the Supreme Court’s going to have to face this as they did in the late 1990s and early 20th century when the states refused to stop passing partial birth abortion laws. So I think that’s what’s on the horizon. And Chief Justice Roberts may not like it, but the people of so many of the states are moving legislatively to make sure the Supreme Court confronts this issue once again.
Dr. John Eastman: Yeah, I think that’s right. Unsigned opinion by Justices Kennedy, Souter, and O’Connor in Planned Parenthood v. Casey that makes the claim that the essence of our Constitutional system of order is the power that’s invested in the Supreme Court that requires them to adhere to even bad precedent so as not to undermine the legitimacy of the Court. Even in the face of clearly erroneous assessment of that precedent and public opposition to it, this really had the whole notion of the people being ultimate sovereign turned upside down. And that’s why there’s this persistent move to challenge that decision. And I don’t think the Louisiana cases are going to go all the way, but it is clearly in play. The concurring opinions, the concurring in the judgments, the footnotes are going to be a very telltale sign of what the Court is thinking about the direction of this issue in the future.
Mark Miller: Yeah. And just to add on to what you both said, because you both said it very well, I think, John, you mentioning the partial birth abortion cases is, I think, makes a lot of sense here when you look at when Hellerstedt and now this Gee case -- so initially, when the Supreme Court looked at those partial birth abortion laws, they looked at a state law, and they struck it down and said it was an undue burden. But then a few years later, they come back with a differently composed Court. I think Justice O’Connor had retired at that point, and then Chief Justice Roberts as well had come onto the Court. And they get the federal version of the partial birth abortion, and they say as a matter of law, these two laws are different, so we’re going to distinguish from the first partial birth abortion case, but we’re going to uphold the federal government’s law and say it is constitutional and not an undue burden.
And so here, as we mentioned earlier, Judge Smith writing for the court in Gee in the Fifth Circuit case that’s now up on review, or that’s now up on the merits, he took pains to show factually as opposed to legally where the partial birth abortion laws were different. He took pains to show factually how Gee is different from Hellerstedt. And David, you laid it out, the facts that are different. And so it wouldn’t surprise me if we see that sort of model with Justices.
And again, predicting is a fool’s errand, but nevertheless, Judge Smith, writing for the panel at the Fifth, 2-1, did a good job as to showing how factually, although the Juno Medical Services wants to say the laws are identical. In fact, Judge Smith was able to show how the way it plays out is actually quite different in Louisiana versus Texas. So I think you could see Hellerstedt remaining intact, but the Court putting more behind the undue burden standard, similar to what they did last decade in the 2000s on the partial birth abortion debate.
Dr. John Eastman: And with that, I think we’re at the end of our hour. Thank you all in the audience for joining us on this important start of the term. Yesterday was the first Monday in October. The Court is off to, I think, what may be a gangbuster year, and certainly the couple of cases added to the docket last week and after its long conference certainly enhance that view. Wes, let me pass it back to you, and you can close us out.
Wesley Hodges: Of course. Thank you so much, John. And thank all of you for participating. On behalf of The Federalist Society, I’d like to thank our experts for the benefit of their valuable time and expertise today. We welcome all listener feedback by email at email@example.com. Thank you all for joining us for the call. We are now adjourned.
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