The Future of the Supreme Court

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Dean Reuter:  Good afternoon, and welcome to The Federalist Society Teleforum webinar. This afternoon, March 3, 2022, we’ll be discussing “The Future of the Supreme Court.” I’m Dean Reuter, Senior Vice President and General Counsel at The Federalist Society. As always, please note that all expressions are those of the experts on today’s call. Also, this call is being recorded.

 

We’re very pleased to welcome four speakers to our program today. Two will be focusing on criminal law primarily, and two will be focusing primarily on civil rights. They’re each going to give us opening remarks of five minutes or so, then a little bit of back and forth. But as always, we’ll be looking to the audience for questions when we get to that portion of the program. Please be thinking of those questions.

 

We’re going to hear first from Ethan Davis. He’s a partner at Special Matters and Government Investigations at King and Spalding. He’ll be followed by Professor Dan Epps, who’s a Professor of Law at Washington University in St. Louis. Then, turning to the civil rights issues, we’ll hear from Roger Severino, Senior Fellow at the Ethics and Public Policy Center who will be followed by Professor William Marshall, Bill Marshall, a Kenan Professor of Law at the University of North Carolina. With that, Ethan Davis, the floor is yours.

 

Ethan Davis:  Thanks, Dean, and I’m happy to be here with all of you to discuss a Justice Jackson’s potential impact on the Supreme Court’s criminal law cases. It’s also great to be here with these very distinguished co-panelists and friends. This is a topic near and dear to my practice. My practice consists of representing clients under investigation by the federal government. I’ve done several tours of duty at the Justice Department as well. Most recently, until September of 2020, I served as the acting assistant Attorney General in charge of the Civil Division. So let me offer a few thoughts.

 

First, it’s somewhat hard to predict where a Justice Jackson would take the Supreme Court based on her existing judicial record. She spent most of her career as a district court judge, and she handled quite a few criminal cases during her time there. But none are too noteworthy or predictive about where she might go with the big issues of criminal law.

 

Here’s what we do know. As you might expect from a former federal defender, she certainly does not hesitate to rule against the government in criminal cases. Maybe her most notable criminal opinion is a case called U.S. v. Young from 2018, which was a prosecution for possession of heroin. The issue involved criminal forfeiture and the government wanted to forfeit not only the heroin but also the $180,000 that the defendant had paid to obtain it. And Judge Jackson wrote a lengthy published opinion rejecting that as double counting. And that opinion is clearly passionate about that issue. The other data point we have is Judge Jackson’s undergraduate thesis at Harvard, which is called “The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants.” I think the title says it all there. So I’m fairly confident in predicting that she is almost certainly going to be more skeptical of the government in criminal cases than Justice Breyer was.

 

But the story isn’t totally simple, I don’t think. She’s also ruled in favor of the government in some Fourth Amendment cases involving reasonable use of force, electronic surveillance, and probable cause, just a few. So I don’t think she’s necessarily going to be an automatic vote for the defendant in every case. And along those lines, one interesting question is how Judge Jackson would rule in cases where administrative law collides with criminal law. So as you all know, we live in a new world now with thousands of federal criminal statutes, tens of thousands of federal regulations with potential criminal applications.

 

And so, just as a thought experiment, take the big nondelegation case from a few years ago, United States v. Gundy, this is a case that split the Court along unpredictable lines. The defendant was a sex offender, and the question was whether the federal statute called SORNA unconstitutionally delegated legislative power, basically the power to write a criminal code, to the Attorney General. And Justice Kagan rejected the challenge over a dissent from Justice Gorsuch, Justice Thomas, and the Chief Justice. But Justice Breyer notably was on Justice Kagan’s side ruling in favor of the government.

 

And so, a key question I think is going to be whether Judge Jackson shares Justice Breyer’s instinct to favor the government when broad claims of agency power are at issue, or will her inclination to favor criminal defendants in cases like that prevail instead? That is a highly significant question given that these kinds of cases can sometimes split Justice Alito away from Justice Gorsuch and Justice Thomas. She does have the potential to provide a deciding vote in cases like that. If I had to bet, I would say she’ll follow the Justice Breyer example and uphold broad claims of agency power even where criminal defendants are involved.

 

Where I expect a Justice Jackson to potentially mark a change from Justice Breyer is in other areas that don’t have as much cross-cutting impact as administrative law. Some of these other areas are also places where she could potentially cast tie-breaking votes. So for example, in recent years, Justice Breyer has tended to join the Chief Justice and Justice Alito in resisting a broad understanding of the Confrontation Clause. Well, would a Justice Jackson shared Justice Breyer’s view on the Confrontation Clause, or will she tend to join Gorsuch, Sotomayor, and often Thomas in ruling for criminal defendants? I suspect the latter, although there’s no concrete proof in her record.

 

Another final example with really huge practical impact in criminal law is the Sixth Amendment right to a jury trial and the Apprendi line of cases. Justice Breyer has been mostly against the idea that the Sixth Amendment requires a jury to find the facts and increase of penalty beyond the statutory maximum, and he’s often found himself aligned with Justice Alito on that question. In a lot of cases though, the Court has gone the other direction and invalidated, for example, state mandatory sentencing guidelines and rendered the federal sentencing guidelines advisory. And I suspect that a Justice Jackson would shift the Court more towards criminal defendants on these Apprendi issues, which could have a potentially big impact on one looming question, the constitutionality of supervised release revocation proceedings where a judge typically finds the facts to send an offender back to prison.

 

So to summarize my view before handing it back over, although there’s some uncertainty, maybe a lot of uncertainty, I suspect that Justice Jackson would vote in favor of criminal defendants in most cases, certainly more so than Justice Breyer did. But when a criminal case raises broad questions of federal agency power, my strong suspicion is that she’ll be more inclined to rule for the government. I’ll hand it now to Professor Epps.

 

Prof. Daniel Epps:  Well, it’s great to get the handoff from Ethan, who is my former co-counsel on a criminal law case in the Supreme Court, Ocasio v. United States that Ethan argued very ably. But just don’t ask us how the case came out in the end. And I teach criminal law and procedure, so I think a lot about these things. One thing I want to say at the outset is you’re looking at differences. You shouldn't just look at the bottom-line votes, like are the votes going to be different in merits cases.

 

Because there can be a lot of differences that don’t track that. There could be -- different justices could have different interests. They could choose to kind of write dissents from denial of cert in particular cases, drawing attention to particular issues. There could be a tonal difference in how they approach different cases and things they put emphasis on. Justice Breyer was someone who -- his opinions were often, regardless of how he down, they were often a little tepid. And so, you might be curious would-be Justice Jackson’s opinions, will they be sort of in certain criminal cases, will they be more heated? Will they focus on different things? And the thing that really strikes me that Ethan drew some attention to—and I want to linger on—is just quite how much criminal experience Judge Jackson has over the course of her career.

 

So in addition to being a public defender, she clerked on a district court. As a district court judge, she’s presided over jury trials. She was on the Sentencing Commission. She’s got family connections to the criminal justice system. She has multiple family members who are police, another who was sentenced to life in prison. And so, she seems to have a lot more exposure to a knowledge, deep knowledge, of the criminal justice system as compared to Breyer, who was on the sentencing commission but otherwise did not have a career that was deeply enmeshed in criminal justice.

 

I took a look at the college thesis she wrote about plea bargaining that Ethan mentioned. And she comes at it concluding that plea bargaining, the plea-bargaining process, is unfairly coercive. But one thing that’s just interesting about it is it’s not just kind of theory piece. It was something where she went and observed. She shadowed trials with public defenders. She interviewed judges. She interviewed prosecutors. She interviewed defense lawyers. So she’s coming at this with a lot of real world understanding of the way the system works. And that might influence how she writes opinions. It might influence the kinds of cases she tries to urge the Court to grant or writes dissents if the Court isn’t interested in granting. And seeing where her interest is and where that knowledge causes her to kind of approach cases differently than Justice Breyer, who I think often was going to be a little bit viewing these things from 30,000 feet up rather than kind of focused on how these things play out in the real world, that is going to be very interesting.

 

Just to continue on the theme that Ethan noted, it does seem like there’s in some -- a good number of criminal cases just kind of divide the Court on predictable, ideological lines. Some don’t, and those cases seem to be -- there seem to be some kind of functionalist formalist access that causes the justices to sort of see cases differently. So Justice Breyer is in the majority in Maryland v. King, saying it’s okay to take DNA samples from arrestees. Justice Scalia is in dissent there. And so sometimes, there are these cases that don’t track on. I’m very curious to see in those cases and some of the other cases, lines of cases that Ethan mentioned, how she tracks on there. And I think we don’t really know yet. And so, I think I am supposed to hand it off to Roger Severino.

 

Roger Severino:  Thank you very much. So it’s an interesting position for the nominee to be in when she’s going to be facing questions of affirmative action when the president himself said he was only going to limit the selection of candidates to African American women. That is a very awkward position for Judge Jackson to be in when she’s going to be hearing cases on that very question when it comes to affirmative action in the university setting. It is doubly awkward because in that particular case -- there’s two. There’s the Harvard case and the UNC case. It’s Title XI, whether or not universities can use racial preferences. And Harvard admits that if you check a box of African American or Hispanic, then you will get a preference in some way or another.

 

So it’s personal to me, when I applied to Harvard Law School, I was faced with a question as a Latino whether I checked the box. And even though my Colombian heritage is incredibly important to me—I only speak Spanish to my children, for example—I chose not to check the box because I didn't think it was fair for me to be reduced to just a demographic as a measure of my worth, and I didn't want that example for my children either. It should be on the merits, not your skin color. Well, a complication for Jackson is that she’s on the Harvard Board of Overseers. And having been on the Harvard Board of Overseers, I can’t see how she cannot be required to recuse herself form this very important case. So it might be a way of saving her from the awkwardness of her nomination if she gets through.

And she’s got many qualifications, but the fact that she was put in a separate category, unfortunately, that’s the problem with a lot of affirmative action programs. It starts raising questions. She seems to be quite well qualified in terms of basic skills in the law. However, I will note she is one of the most reversed judges in the D.C. Circuit. That’s saying something given that she’s in a liberal circuit. It’d be one thing if you’re an originalist reversed in some very liberal circuit, but she’s no originalist. And she’s being reversed in the D.C. Circuit with a lot of frequency. She’s among the top.

 

So I think the Harvard case with or without her is probably going to signal the death nail of the Grutter v. Bollinger line of cases. And I think racial preferences, my bet, is will finally be found to be in violation of at least Title XI in the education setting. And remember, Grutter had a 25-year expiration date, and we’re already getting close to that. And that would just short circuit it by having this case decided in this term.

 

I think a lot of the action on the civil rights side is going to be on religious liberty, which will be continuing a tradition of the Roberts Court. And generally, when they accept a religious liberty case, it will be in favor of broad protections for religious exercise, and I don’t see that changing much here. So we have the Coach Kennedy case, where a coach was fired for praying after a football game where students would voluntarily join him. This was coming out of the Ninth Circuit, and it’s a First Liberty case. I think the fact that they took it, it signals that they’re willing to protect the rights of even public employees and even public school teachers on noninstructional time to express their religious freedom. That’s not a bad thing. It’s not something that is to be ashamed of or cast aside in any sort of undue pressure on anyone.

 

Another interesting link with Jackson is that she was on the board of a Christian school that held as part of their mission to uphold the belief that marriage is a union of one man and one woman, very interesting. Now, she has distanced herself from the beliefs of that school. But she was on the board of it, which means that she’s not being cancelled by the left, right? If you would have a candidate on the right coming up with that background having been on a board of a school that supported man-woman marriage, they would be absolutely lambasted in the media. But she’s getting a pass, and I think because she’s coming from the left. So the left is not going to attack her on this. But I think it sets a good precedent that you could be on a board of an avowedly Christian school, and that does not in any way a disqualifier to serve on the Supreme Court.

 

Two other cases. One, 303 Creative, this is following up on the gender identity and sexual orientation line of cases in places that are businesses that serve the public. And here you have a person who wants to set up a business that celebrates marriages through a website. And it’s an artistic expression. And the Tenth Circuit said that because it is a unique artistic expression, it must be compelled that they must celebrate same-sex marriages contrary to their religious beliefs. This is a clear free speech compelled speech case. I think it’s going to be a quick loser on the part of the Tenth Circuit. This is an ADF case. And they set it up very much to be reversed by this very egregious set of facts where because you have unique artistic services, that’s why you must provide it contrary to your religious beliefs. I don’t think it’s going to hold as a free speech case.

 

Finally, the COVID exemption case, this is a dog that hasn’t barked. We have seen the Court split on the COVID issue. It struck down the OSHA mandate but upheld the CMS mandate. We have not heard them say that mandates that do not have religious exemptions, whether or not they’re constitutional. And they’ve punted a couple times. And that’s something I’ve been disappointed that they haven’t taken up. There’s a New York case that is still left to be decided. I’m not sure where Jackson will end up on these issues, if she’s pro-enforcement of government mandates or pro-liberty. I don’t know. But that’s one to definitely keep an eye on. And she might very well play a deciding factor. So I’ll pass it off to Professor Bill Marshall.

 

Prof. William P. Marshall:  Thank you, and thanks to The Federalist Society for inviting me here today. I always say this when I start my talks, but I deeply appreciate The Federalist Society’s commitment to a wide range of ideas. And I want to thank Dean, and I want to thank The Federalist Society for inviting me here today. It’s hard to predict what a Supreme Court justice is going to do and how they’re going to approach things. In Judge Jackson’s case, there is not that much out there to predict how she’s going to be on civil rights.

 

But let me talk about one aspect that Dan referred to before, which is her incredibly breath with criminal law and all aspects of it, on the sentencing commission, her family being prosecutors, her own experience with a family member being a defendant, and her being a public defender. This isn’t—I know that’s criminal—but I think it’s going to give her a very, very well-developed approach to any official immunity cases that come before the Court, which I think is an area that the Court is likely to look into in the future. I’m not sure which way she’s going to come out, but I think having her as part of a Court that decides that issue is going to give a fullness to that opinion and to the way a court approaches those decisions that it might not otherwise.

 

With respect to some of the specific things that Roger pointed out, first of all, I don’t think there’s any question that she is as qualified as anybody. And any suggestion that she’s not I think is improper. She’s incredibly skilled. There were a number of African American women who were skilled and able to take the job of Supreme Court Justice just as the way there were many women who were able to take that role when Ronald Reagan first suggested that he was committed to a place a woman on the Supreme Court. So I think any suggestion that maybe that the president wasn’t looking at the top of top of the top is just plain wrong.

 

With respect to some of the questions that were raised maybe about race and religion, I think it is great that she has been on the board of a school. I totally agree with Roger that it’s good to have people on the boards of particular organizations. And just because you aren’t on board, that shouldn't be a disqualifier or a qualifier for Supreme Court Justice position. I don’t know how that’s going to lead to her decision making, but I do agree that it’s an important part and a commendable part of her background. The issue itself on the kinds of questions of religious exemptions from neutral laws is not clearly a conservative or a liberal position. Justice Scalia wrote the opinion rejecting the idea that there should be exemptions from neutral law. Justice Brennan was its strongest proponent. And how a Justice Jackson will come out on these issues I think is unclear.

 

With respect to race, I mean, what does it mean to the advantage of diversity and race? I don’t want to be overly simplistic here, but I think if you come from a particular background, in the same way that talking about being on the board of a school gives you some insights that other people might not. And I want to use a trivial example if I could but just because it’s easily accessible. I was watching a sitcom in which there are two friends. One is an African American, and one is white. And the white friend gives the son of the African American a water pistol, and the father is horrified. And the reason why the father is horrified is because he understands that if his boy is carrying a water pistol around, it could lead to a disastrous result that might not occur if it was a white boy.

 

And having that kind of sensitivity doesn’t necessarily lead you to results in particular cases, but it gives a fullness to the decision making that I think is added by having somebody with a particular diverse background. So I think she will add that as well to the decision-making process. What else do we know about her? We know that she’s very careful in her decision making, that she’s very thorough in her decision making, that she seems to be persuasive in her decision making. So I expect a lot of that echo through her mentor was, who is Justice Breyer, and we’ll see a lot of Justice Breyer in her if she goes forward.

 

The final point that I want to make before turning it over to questioning is one area where I do think that she has signaled something and that’s with respect to presidential power. Because her decision on the McGahn case, it’s not just a result. To look at whether I was in the White House Counsel’s office, I knew that I didn't have absolute privilege. The claim being made by the Trump administration was pretty broad, so I don’t think it’s anything all that controversial that she rejected a broad claim there. But she did so by suggesting a certain resistance to broad claims of presidential power. And it think that’s important going forward no matter if the president is a Democrat or if the president is a Republican.

 

The one thing that has happened since the other Justice Jackson’s opinion in Youngstown when he talked about the inevitable expansion of the presidency. As we’ve seen presidential power expand even more, and to the extent that she’s going to be a check on that, that’s all to the good. So leaving that off, let me turn it back to Dean. Thank you, Dean.

 

Dean Reuter:   Thank you, and thank you all for your opening remarks. I’m going to start by giving you a chance to respond to anything you heard from speakers that went after you. I don't want to go through the order again.

 

Roger Severino:  I’ve got some things I’d like to --

 

Prof. Daniel Epps:  And if I may, if I could respond to [inaudible 00:23:47] --

 

Dean Reuter:   Go ahead, Roger. We’ll get Roger, and then we’ll get Professor Epps. Go ahead, Roger.

 

Roger Severino:  Okay. In respect to qualifications, Judge Jackson has all the standard qualifications you’d want to see in terms of judicial experience. Which begs the question, wouldn't it have been much better if President Biden had said, “We’re going to find the single most qualified person, regardless of their race and sex,” and then say, “And we’ve decided that it is Jackson”? Why limit the search to just one category? And that’s what raises questions in people’s mind. When you block off whole categories of people, which is exactly what President Biden did, that’s the problem.

 

My issue with her isn’t her background qualifications, it’s how she’s going to rule and if she’s going to be just a rubber stamp for the left. And indications are that she will be. She appears to be an incredibly pleasant person and has a lot of great character traits going for her, but what matters is how she’s going to rule. And her entering in already in this process when that would have been absolutely unnecessary raises questions that didn't have to be there. And it was an unforced error on part of the Biden administration.

 

Dean Reuter:   Professor Marshall, you want to respond. He said is there any handicap in being selected under those criteria as announced in advance.

 

Prof. William P. Marshall:  No. I don’t think anybody knew that any particular justice at any particular time was the single best, most qualified person. There’ve always been considerations. Sometimes it’s been geographical, we want to pick somebody from the West. Sometimes it’s been what kind of -- what the governor of California maybe to be picked. There’s something that comes from a different kind of background. We’ve always guide it. We’ve always had that, before and again. Governor Reagan -- I mean, President Reagan did that with respect to women. This is nothing particularly new.

 

The fortunate thing is that we have a lot of very qualified people with a lot of different characteristics. And for President Biden, they indicate that it was time at this point to have an African woman on the bench. I don’t think that’s anything that should be criticized. We know that she’s well qualified. Everybody’s agreeing she’s well qualified. There are many people who are well qualified, and she’s one of those. And she’s certainly eligible and well qualified for this position.

 

Dean Reuter:   Professor Epps, I think you wanted to --

 

Prof. Daniel Epps:  Yes. I think it is important to sort of say when something’s said you really don’t agree with. And so, when Justice Ginsburg died, President Trump said, “It will be a woman, a very talented, very brilliant woman. I haven’t chosen yet, but we have numerous women on the list.” That was less than 18 months ago. And so, to the extent you see people, activists, commentators, senators, making the argument that this nominee will have a recusal issue, will not be -- if those arguments weren’t being made about Justice Barrett when she’s hearing cases involving gender discrimination, Title XII, Equal Protection cases, those are not good faith arguments. You have to be able to distinguish that. If people weren’t saying that 17 months ago, that’s not a great argument.

 

The other thing is the idea that she’s been reversed sometimes means she’s going to be a rubber stamp, you got to look at the opinions. You can’t just say that. And so, the criminal cases that we looked at, she was getting reversed because she sustained convictions, so the idea that this is just, oh, she’s being super liberal and she’s being reversed because she’s not liberal enough, no. I mean, sometimes the law’s complicated, and you can’t just sort of look at these numbers and say that means something. You got to actually dig in a little bit. You kind of need to make arguments that really get at the issues.

 

Dean Reuter:  Ethan, you came off mute. Go ahead.

 

Ethan Davis:  Yeah. I’d like to pick up on something that Professor Epps said a little while ago on a somewhat different topic, that the functionalist versus formalist divide in the Court that he noted, I think that’s an interesting point in the context of both in terms of its effect on substantive criminal law and on what it says about that method of interpretation in general. This is the Breyer versus Scalia dividing line. Based on my read of Judge Jackson’s opinions, she’s going to be more on the functionalist Breyer side. Her opinions are really not very formalist at all.

 

But I nevertheless think that’s going to lead her to dramatically different conclusions than a lot of criminal law cases than Justice Breyer would have reached, like on the Confrontation Clause or the right to a jury trial. And that’s because her experience, as Dan said, is deeply enmeshed with the criminal justice system, much more so than Justice Breyer’s is. And if that’s right, what that shows, I think, is it raises a fundamental question about that whole mode of functionalist interpretation because it shows that judges can just end up reaching different conclusions in the interpretation of the same statutory or constitutional text just based on life experiences.

 

Roger Severino:  Well, I think it’s important to note that she’s had 11.9 percent of her opinions reversed by the D.C. Circuit. So one out of ten times, her liberal colleagues are going to say, “You got it wrong.” Now, either it’s because she got it wrong on the law or she got it wrong because she was even farther to the left of the D.C. Circuit. Those are really the only two options, and neither one of those are good.

 

Prof. William P. Marshall:  I think you have to read the opinions. I think I agree with Dan. Dan says you got to read the opinions.

 

Prof. Daniel Epps:  Yeah. You’re just creating -- you’re saying either she’s wrong because the liberals are right on the D.C. Circuit or you’re saying she’s too left. I mean, it could be that she’s right, and they’re wrong. I mean, there’s a lot of possibilities here that you -- that just doesn’t work.

 

Roger Severino:  Oh, I doubt she means a conservative view and is right on the law.

 

Prof. Daniel Epps:  Okay. She was in a case where she said a criminal defendant who was charged with child pornography, creating child pornography, could be convicted. D.C. Circuit says no. That issue is going to be resolved by the Supreme Court. So you’re just coming at it with the assumption that she’s wrong. And look, if you’re going do that, that’s great. But I think that the nice thing about these Federalist Society events, they’re designed to persuade people. They shouldn't just be kind of speaking to the converted. And so, it’s more effective even for you guys if you actually make arguments that resound, that really resonate with people, and that’s not it.

 

Dean Reuter:  Don’t say further anything on this point with regard to her qualifications. By the way, in the audience, use the chat function. Some people in the audience have already found the chat function on a lower middle part of your screen. If you have a question—I’m going to be selective in our questions—but this is the last question answered. I don’t even know if our panelists can see these questions, but I’ll read it. What are her qualifications, experience, knowledge, and expertise in ruling on matters in cases relating to regulatory economics, tax matters, interstate commerce clause issues, constitutional business litigation, and business First Amendment issues?

 

That’s a pretty -- I mean, it gets into some specific areas of the law. One thing I’m curious about that I’ll layer on top of that question is her experience at a district court level as opposed—which is eight or nine years I think—as opposed to the appellate court level, which is shorter. And I don’t think we need to compare that to other justices and how they’ve done. But is there significance in that, the fact that she’s in on a lower court but less time on an appellate court? So anybody want to respond to that?

 

Prof. William P. Marshall:  Yeah, sure. I think that means she’s going to be particularly well attuned to questions of civil procedure, which is a course that I teach, on evidence kinds of issues, which is incredibly important. She’s going to be very attuned to the day-to-day events of the way the system actually works. And I think that’s incredibly all to the good, the same way that I think her experience on the sentencing commission is so important because it gives us a real -- she’s very well tried in the weeds on those particular kinds of issues as well as the public defender part. So I think she brings an incredible wealth to what’s going on at the district court level, which is where most of the federal court cases are, needless to say.

 

Dean Reuter:  Are there any other -- are there any justices on the Court now that have longer terms of service at the district court level? Does anybody know?

 

Prof. William P. Marshall:  I don’t believe so, but I could be wrong. But I don’t believe so.

 

Dean Reuter:  This might take us back down the path of reversals. And again, if you have a question, put it in the chat please. This question seems to go to the facts around the reversals. Is there agreement on the rate of reversal? Is it 11.9 percent? Is it higher or lower than that? And has she been reversed as a court of appellate judge in her short tenure? Probably not. There probably hasn’t been a case that’s gone up from the D.C. Circuit to the U.S. Supreme Court.

 

Roger Severino:  It’s 10 out of 84 cases were reversed. Many of her colleagues are much lower reversal rates. There’s one that had 0 percent, well had enough of them in 14 cases, a Trump appointee. But she’s had 10 out of 84 reversed.

 

Prof. Daniel Epps:  I don’t think she’s had enough on the Court of Appeals to reach any conclusions. I think she’s at maybe two, one or two public opinions so far.

 

Dean Reuter:  So is there anything -- I’m going to go back to something Professor Epps suggested. Well, it’s an issue he raised. He didn't make a suggestion on it. The question was whether or not as a justice Judge Jackson would be more or less outspoken, maybe not than Breyer, but maybe would she be -- she would be in the top half of the Court in terms of outspokenness, the bottom half? Is there anything in her history that suggests or points in one direction or another? You can answer this question more generally too if we’re going to assume that it’s a 6-3 Court as everyone’s trying to characterize it, are people when writing dissents more likely to be outspoken?

 

Prof. Daniel Epps:  Can I just say one quick thing about the reversal rate? Which is I don’t exactly know what that denominator is supposed to be. But according to her questionnaire, she had 562 rulings and 11 were reversed, so that’s less than 2 percent. And the other thing just to note about that is just saying, oh, it’s a liberal circuit, it’s a panel system. Not every case goes en banc. And so, you can panels that are more or less conservative. And so, there’s not -- you can’t just sort of, “Oh, yeah, the D.C. Circuit is liberal.” It’s a lot more complicated than that. And I don’t exactly know where those numbers are coming from. It doesn’t look accurate to me.

 

Roger Severino:  It’s the number of negative appeals to the number of total appeals. And these are -- yeah. That’s numerator-denominator.

 

Prof. Daniel Epps:  Yeah. It seems like you should look at the number of decisions. You should look at -- you’re looking at the wrong number. Because if you make a lot of really clearly correct decisions, you’re less likely to get appealed. That’s cherry picking, and so I think you need to look at the actual total number of decisions. How many of them were wrong? It looks like 98.04 percent were not reversed. That’s pretty good.

 

Roger Severino:  Yeah. But this is for the appeals on issues that actually matter, that are contested points.

 

Prof. Daniel Epps:  Well, how do we know? How do we know that they matter? I mean, she might have just written such good opinions. I mean, this is classic thing with empirical analysis. You’re selecting on the dependent variable. You have to look at the whole dataset. And so, that’s cherry picking. It’s not going to work. It’s not persuasive.

 

Roger Severino:  It works when she’s compared to her colleagues using the exact same criteria.

 

Prof. Daniel Epps:  Not necessarily. Not necessarily because they have different -- it depends on the selection for who’s appealing. So you can’t assume it’s a constant percentage because their selection effect.

 

Roger Severino:  She’s far outpacing her colleagues in the reversal way on the appeals.

 

Prof. Daniel Epps:  But, again, you’re looking at the wrong metric. If you’ll notice the comparison in terms of total decisions, that seems like the right comparison. Even that isn’t perfect because they’re not all deciding the same cases, but that at least seems more accurate.

 

Prof. William P. Marshall:  You’re only talking about 11, right?

 

Roger Severino:  Yeah. I mean, this is --

 

Prof. William P. Marshall:  And let’s take a look at the absolute number here, 11. We don’t know if they’re procedure cases. We don’t know what kind of cases they are, if there even are cases that involve a liberal conservative. Look, they could have been ERISA cases for all we know.

 

Roger Severino:   Yeah. And again, when you compare the same apples to apples among her colleagues using the most relevant metric is negative appeals, right?

 

Prof. Daniel Epps:  But that’s not apples to apples because there’s a selection effect. Depending on how well the judge writes decisions, the decisions are made about appealing. That’s exogenous. You can’t just say, no, look at the total number of appeals. You have to look at the decisions. Even that isn’t a perfect comparison. But this is just -- this is classic bad empiricism. You have to --

 

Roger Severino:  But the ratio is what matters most.

 

Prof. Daniel Epps:  No. The ratio doesn’t matter if you’re looking at the wrong thing. This is not persuasive because you’re looking at the wrong thing. Because different judges will produce different opinions and different decisions that cause them to be appealed or not appealed differently.

 

Dean Reuter:  All right. Let me interrupt here. Let me give Roger Severino to say 10 seconds—I think I understand, and I think the audience understands everybody’s point on this—but Roger, if you want to sum up in 10 seconds, then we’ll move on to another issue.

 

Roger Severino:  Okay. She would have decisions appealed to the D.C. Circuit, would lose 11 percent of the time, and that far outpaces her colleagues when their decisions were appealed who had much lower rates of being reversed by the liberal D.C. Circuit.

 

Prof. Daniel Epps:  Great. But how many of those cases were not appealed because they were written well or written. So again --

 

Dean Reuter:  I think we got it. I think we got it.

 

Prof. Daniel Epps:  Okay. Well, it’s just you’re giving him the last word. I want to have the last word.

 

Dean Reuter:  everybody wants to have the last word. But I think the audience understands what both sides are saying here. So again, if you’re in the audience and you have a question, you can put it in the chat. Has Judge Jackson written dissents on the D.C. Circuit Court of Appeals? If so, do they say anything about what we could expect from her at the level of the Supreme Court? I’ll go back to my other unanswered question, which is about her forcefulness or her voice as a justice. Is there anything in her past that suggests whether she would be outspoken going forward?

 

Ethan Davis:  I can jump in on that, Dean. I think it’s unquestionable true that she’s going to write more spirited, more forceful opinions than Justice Breyer did. I mean, as Dan correctly said, Justice Breyer is known for being a little more tepid in his opinions. And if you read what Justice Jackson has written -- what Judge Jackson has written on the district court or the D.C. Circuit, they use more colorful language.

 

And I think one area where you’re going to see that potentially have an impact is in the Court’s emergency death penalty docket, where the addition of Judge Jackson to the Court is not going to change the results coming out of those. I mean, these are inmates who file emergency applications for stays of their executions at the last minute, produces all these opinions at 2:00 in the morning out of the Court. A lot of those split down amongst predictable ideological lines, and Judge Jackson’s not going to change that split. But I think what you—if I had to predict—I think what you’ll see are some forceful dissents from her in some of those 2:00 AM opinions.

 

Prof. Daniel Epps:  And Ethan, you and I had talked a little bit about this before, which is how much Kagan is really talking explicitly about the shadow docket in recent opinions and maybe she’ll be doing the same.

 

Dean Reuter:  I’ll ask a question that follows up on the emergency docket or the shadow docket. Has it changed significantly in its use? Has it expanded? Has it always been there? When did it come into being? I feel like everybody’s talking about it quite a bit now as if it’s only recently emerged.

 

Ethan Davis:  Yeah. I think that’s right. And I think Dan and I may differ on this. I really can’t stand the term shadow docket. I mean, it’s just the emergency docket. Emergencies happen in our court system, and they’re never going to go away. People need relief in many situations, and they need it immediately. One example is when a death row inmate is about to be executed. I mean, you’re not going to stop those inmates from filing last minute stays of execution. That’s been going on for a very long time. It’s not a new phenomenon. And I’m really unclear on what could be done to stop emergencies from hitting the federal court system.

 

Prof. Daniel Epps:  Yeah. I mean, I think if you look in the long run historically, there may have been -- it may have gone up and down. If you look 40 or 50 years ago, there was a lot of wacky stuff happening in these kind of in chambers opinions. It does seem like there was less in sort of really big -- there’s a lot of death penalty stuff, but there was maybe less that was happening in terms of really big, really consequential issues maybe getting kind of decided on the emergency docket.  I don’t love the term at this point either—a friend of mine, Will Baude, came up with it—but it’s not really in the shadows in anymore. It’s sort of all the attention is on the docket.

 

I think you can say though there are some examples – there’s been a lot of activity in the last couple years. There’s really important legal questions that are getting decided in that posture where that maybe wasn’t true a few years ago. And so, I think it depends what category of cases you’re looking at. But I don’t think it’s right to just say there’s been no change and it’s been constant. I think it’s something different justices have different views about how to use this power, when to grant. There’s certainly been an increase in granting injunctive relief directly by the Court. That happens a lot more than it used to, so it’s complicated.

 

Roger Severino:  And you got to be careful what you wish for. So this all exploded over the heartbeat bill when the Supreme Court allowed the Texas pro-life law to come into effect. And then they actually granted argument and then had the same result afterwards. And we’ve had it also with the OSHA mandates, et cetera, where they’re doing things on an expedited basis, and they’re doing it right. I don’t think this is a made-up issue. When Planned Parenthood was the one that delayed in bringing the case before the Texas issue, and they were the ones who made the emergency petition. So how could you complain about an emergency decision when you’re the one asking for it.

 

Dean Reuter:  Here’s a question from the audience, and this concerns the overlap of criminal law and international law, so I guess primarily for our criminal law experts. Any comments on that overlap potentially in Judge Jackson?

 

Prof. Daniel Epps:  I mean, I guess I don’t know how often that matters. I mean, one area where it came up in recent-ish years was Justice Kennedy’s Eighth Amendment cases where he would kind of look at evolving standards of decency partially measured by the practices of other countries, very controversially. I don’t know. I don’t have any particular reason in her background to think that’s going to be the focus. I’m trying to think of -- Ethan, do you have any ideas about kind of other areas where international stuff kind of bleeds into criminal, which are usually the domestic [inaudible 00:42:37]?

 

Ethan Davis:  Yeah. I mean, the question refers to maritime law, which I kind of view as its own unique topic that kind of heads and unpredictable directions. It produces some unpredictable splits. I think I looked at her at all of her criminal law opinions, and I don’t think we saw anything involving this intersection, so it’s really hard to predict where she’s going to go there. I think she’ll, like in other areas, she’ll be naturally inclined to rule for the defendant unless there’s some other cross cutting issue that that ruling could affect that she cares about.

 

Prof. Daniel Epps:  Yeah. I mean, Ethan, you might be overstating it to say she’s going to naturally be inclined to rule for the defendant. As we talked about, she’s got cases where she didn't rule for the defendant where she gets reversed. So, I mean, she clearly doesn’t just reflexively rule for the defendant.

 

Ethan Davis:  Yeah. I mean, she certainly has not ruled for the defendant 100 percent of the time. And there are Fourth Amendment cases where she has ruled for the government. So as I said at the beginning, she’s certainly not going to be an automatic vote for the defendant in every case. But I do think on those Confrontation Clause and other constitutional Bill of Rights cases, she’s going to be -- more often than not, she’s going to be to the left of Justice Breyer on those kinds of questions.

 

Dean Reuter:  Does she have a certain view on the death penalty -- I mean on the constitutionality of the death penalty or cruel and unusual punishment?

 

Prof. Daniel Epps:  I don’t think she would have had to deal with capital punishment in the District of Colombia, right Ethan?

 

Ethan Davis:  Well, there were quite a few capital punishment cases that just went through the District of Columbia in the last administration, went up to the Court from there. But I don’t think she was the district judge dealing with them. So I don’t think she said anything about capital punishment. We may have missed it. I don’t know if she’ll stake out the really extreme Breyer view that capital punishment is just simply unconstitutional, period. You can’t get further to the left of Breyer on that, on capital punishment. But I do suspect she’s going to be a pretty reliable vote to -- go ahead.

 

Prof. Daniel Epps:  The interesting thing on that, the Breyer thing, is he didn't start off there. He kind of drifted on that. Maybe she doesn’t start off there. Maybe she starts off somewhere else and drifts to end up at the same place Breyer does. Maybe she’s there at the beginning. Hard to say.

 

Dean Reuter:  There’s also a question in the chat. It’s not civil rights specifically or criminal law. But it talks about the confirmation process, so I’ll ask it, and that is, well, what do we expect going forward? How much will the justice repeal? And I’m interested in how you read or whether it’s unique at all, is it that we’re -- I guess she’s already doing one-on-ones. She’s obviously been nominated. There’ll be a hearing presumably and a vote all while there is no vacancy. Not that there’s anything wrong with that or it’s legally infirm or anything, how often does that happen, that we’re talking about a replacement or filling a vacancy that doesn’t yet exist?

 

Prof. Daniel Epps:  I think that happens with some regularity. It certainly happens a lot on the Court of Appeals where people retire pending confirmation of their successor. So there’s no break in continuity. I don’t remember the exact timing of Justice Kennedy’s departure and when all that happened. Obviously, the most recent, two out of the three most recent vacancies that didn't come up because the justice in question had died.

 

Roger Severino:  And some justices conditioned their resignation on a successor being filled and confirmed.

 

Prof. Daniel Epps:  Yeah. O’Connor did that.

 

Roger Severino:  But we do know that the Biden administration is trying to get this done as soon as possible because they’re afraid they’re going to lose the Senate and a Democratic slim majority. And that would doom any chances of a liberal justice being confirmed. And I think the question was about how is this going to be different from other justices and other confirmations.

 

Well, I’m hopeful that the politics of personal destruction that we saw with Justice Kavanaugh and the smearing will finally come to an end. And attacks on Amy Coney Barrett’s faith and the dogma at living loudly within her and all of that will end. There’s no guarantee. We’ve seen different treatment of conservative justices nominated, starting with Bork through Justice Thomas. And we’ve not seen the same treatment on the candidates from the left. And I think part of that is there’s more restraint from the conservative senators versus the liberal senators. So I’m hopeful we’re not going to see the politics of personal destruction because she deserves better than that.

 

Prof. William P. Marshall:  Well, I really don’t think that if we’re starting off that by suggesting that there’s something problematic about her nomination because she’s an African American woman that we’re starting off on the right point if that’s the place that you want to go with that. I kind of agree with you that we should kind of eliminate that. But that’s where a lot of people are starting, is that there’s something problematic about that. Although, as Dan pointed out, that President Trump said a woman with Amy Coney Barrett before he nominated her. President Reagan did that with Justice O’Connor before he nominated her. So maybe let’s get that off of the table right to begin with, and then we can proceed onward.

 

Roger Severino:  Yeah. What matters are her qualifications. But most importantly, her judicial philosophy, how she’s going to rule. And on that, in her previous confirmation, she said she hadn’t formed a judicial philosophy when it came to constitutional cases. How long does it take? How long have you been a judge and now an appellate court judge? I thought that was an incredible dodge to say she didn't have formed a judicial philosophy.

 

Prof. William P. Marshall:  And Justice Thomas during his confirmation said he had never discussed Roe v. Wade with anybody. Let’s be fair, Roger. I mean, you want the direction to go fairness in one way, let’s make sure it goes fair in both ways.

 

Roger Severino:  And fairness is being able to have her answer on the record what her judicial philosophy is, what her jurisprudential approach is and to guarantee she’s not just going to be a rubber stamp for liberal policy, not ends-oriented results. But what does she think about originalism, textualism? She needs to answer those questions. We have justices who have answered yes. They are originalists.

 

Prof. William P. Marshall:  And I’m sure we’ll see that during the hearings.

 

Dean Reuter:  Let me ask if there’s anything in her writings or her past that talk about precedent or stare decisis that might reveal anything from her about her views on that?

 

Roger Severino:  Certainly less than the most recent nominee, Justice Barrett, who as a scholar and actually written articles about stare decisis. So I have not seen anything approaching that in this case. And obviously, as a lower court judge, certainly as a district court judge, your relationship to precedent is just very, very different than as a Supreme Court justice.

 

Prof. William P. Marshall:  I think one of the things we’re not talking about here with respect to some of this is that she’s going to be coming into this position knowing that in a large amount of cases, she might be part of a 6-3 minority. And I think the way that a judge is going to proceed in that circumstance might be different than if they know if they’re going to be in a majority. They’re going to just naturally want to try to build greater consensus. That might influence the way they write opinions or the way the write dissents. They’re going to be naturally inclined to want to work with the majority rather than just being an outlier dissenter. So I think that’s one of the things that I’m sure that President Biden thought about when he nominated and picked Judge Jackson to be his appointee to the Court is how well she works with a group of judges. And we’ll see how that works out.

 

Ethan Davis:  Not everyone, I don’t think, has that same instinct. If I’m going to be in the minority, let me try to build a majority instead. I think a lot of justices go into that situation saying, “I’m just going to dissent. I’m going to say what I think the law is, and I’m not going to try to build consensus and change my view. I know I’m probably going to lose, but that’s okay. I’m here to say what I think the law really is.” And I don’t know what kind of justice she’s going to end up being in that regard. I mean, I think there are other nominees, other potential nominees, he could have picked that would have been more inclined to be consensus builders than this one. But only time will tell.

 

Prof. William P. Marshall:  I agree.

 

Dean Reuter:  Well, here’s a really abstract question, and that is, what are we going to be saying about Justice Jackson 30 years from now, or 40 years from now? That requires an enormous amount of speculation, but it might give some insights into what do you think of her in terms of her potential. I’ll leave it there, see if anybody wants to respond to that.

 

Roger Severino:  I don’t think she’s going to change the overall trajectory of the Court at this stage. Is she going to be more like Kagan or more like Sotomayor? Now, Sotomayor is the bomb thrower that often makes some rather outlandish claims, particularly at oral argument. Whereas Kagan is much more thoughtful and builds bridges. I think, Professor Epps, I think you made the point that is she going to be in the 6-3 -- or was it Marshall? That could make a difference. That could make a difference.

 

And I think if she has a more caustic personality like Sotomayor, she will be less effective. Indications are she’s not that type just from her personality. But again, once you have that lifetime appointment, and it’s your last confirmation that you’ll ever have to go through, it’s just her conscience is what will guide her. Will she be true to the law and faithful to the Constitution? Or will she answer to politics, the president’s liberal policies who is appointing her, if she gets through or not? Too many justices have drifted once they get into that appointment.

 

Prof. Daniel Epps:  I think looking 30 years ahead is also hard just because we have no idea. We know the axes today, and we have no idea what the issues are -- people are going to care most about 30 years from now. There could be all sorts of issues about artificial intelligence and things that we can’t even imagine right now and that won’t necessarily break down on the lines. Because presidents appoint people in part thinking about the issues in the here and now, and stuff can change.

 

Ethan Davis:  Yeah. It’s a hard question to answer, Dean, about what we’re going to say 30 years from now obviously. I think she will be a reliable vote on the Kagan-Sotomayor side of the Court. I think that’s not going to change over the next 30 years. Beyond that, it’s really hard to say.

 

Prof. William P. Marshall:  Yeah. I’m really hopeful that because of her background with both a large firm, with public defender, with sentencing, with a district judge, as an appellate judge, that she’s going to bring a wider breadth of experience to her position than many other people have. And it’s really terrific breadth. And also, if you add the fact that in addition to her being a public defender she has—it was pointed out before—family who are in law enforcement and family that was also a defendant, that that richness of her background will inform her decision making in a way that will sit well with posterity. But I certainly agree with everybody else in the panel when they say who knows for sure. Supreme Court justice is like a box of chocolates, I guess.

 

Dean Reuter:  Fair enough. Why don't we end with the Forrest Gump comment? We got about 60 seconds for each person to give -- enough time for each person to give 60 seconds in terms of a closing thought. Let’s go in reverse order. Bill -- Professor Marshall, you sort of wrapped up there, but let me see if you got 60 seconds more in you.

 

Prof. William P. Marshall:  No. I mean, I think I won’t take that much time. I do think that she was very influenced. Justice Breyer is her mentor. I think we’ll see a lot of similarities with the way that she approaches cases and the way that he did. I do think she will try to be a consensus builder. Although, I certainly agree with Ethan that that’s not inevitably the case. But I do think that all indications are that she will be that.

 

Dean Reuter:  Roger Severino.

 

Roger Severino:  Well, I think she was nominated because she will be a reliable vote for the left. I think that’s the political reality of the Democratic Party today and of this president. And she’s got a lot going for her. I just wish that the president had not actually just put an unfortunate start by having to exclude a whole category of people. They could have picked her, and it would have been something that would be much easier to be celebrating. And then we could just delve straight into philosophy and not have to worry about had somebody been excluded in part of the pool because she could have picked anyway. And that’s why I believe it was an unforced error.

 

Dean Reuter:  Professor Epps.

 

Prof. Daniel Epps:  So yeah. I think I just would say as you watch the process and see it unfold, just think about the criticisms that were made, make sure they’re being made in a fair way and in a consistent way. Because was it an unforced error by President Trump to pledge that he would nominate a woman? If that wasn’t, we need to have some theory of why this is different.

 

And so, I think in terms of whether she’s being appointed because she’s going to be a reliable vote for the left, presidents always take ideology into consideration. Absolutely President Trump took ideology in his consideration in all of his nominees. And so, that being a criticism in and of itself doesn’t move the needle. And so, I think it’s fine to say this person has a philosophy or an approach that I don’t agree with, and people can have that debate. But I think it’s important to really compare apples to apples and to apply the same standard.

 

Dean Reuter:  Ethan Davis.

 

Ethan Davis:  Yeah. I mean, I certainly agree she’s going to be most likely a reliable vote on that Kagan-Sotomayor wing. But returning to the criminal law points that I was here to talk about, I think some of those are the most interesting questions here, because those are the questions that are splitting the Court right now down some of the unusual lines. And some of those questions are also some of the most momentous questions that are affecting our criminal justice system now. The role of the judge versus the role of the jury in our criminal justice system is something that affects countless trials and throughout state and federal courts throughout the country every day. And so, watching what she says on that, on those topics during her confirmation hearings is going to be a really good way to see what is actually going to happen in the real world in this country as a result of this nomination.

 

Dean Reuter:  Well, thank you one and all for your comments, for your expertise, for spending an hour here with us. I certainly appreciate it. I know our audience does. To our audience, thanks for your questions. I’m sorry we didn't get to all of them, but we covered a lot of territory here. So congratulations to our panelists and a reminder to the audience to check your website and monitor your emails for upcoming Federalist Society events. But until that next event, we are adjourned. Thank you very much everyone.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.