Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Steve Vladeck:

The Supreme Court is in this awkward position of in one set of rulings, signaling that it’s open season for these kinds of cases, and then in another set of rulings saying, “Wait a second, lower courts, what are you doing?” And that’s actually ironically part of what’s going on in Rahimi.

Preet Bharara:

That’s Steve Vladeck. He’s a professor at the University of Texas School of Law, and is a nationally recognized expert on the Supreme Court and constitutional law. He’s also the author of the bestselling book, The Shadow Docket, and has argued over a dozen cases before the high court. Vladeck joins me for our continued coverage of the highly anticipated and consequential Supreme Court decisions coming down this month. We break down some big issues, like gun access and the separation of church and state, how controversial cases make their way to the justices, and the curious changing dynamic of the court’s conservatives. That’s coming up. Stay tuned.

Q&A

Now, let’s get to your questions. This question comes in a tweet from Frustrated in AppSec. The question is, “What is dicta? I hear it on legal podcasts a lot as if everyone knows what it is, but I didn’t go to law school.”

Well, Frustrated, that’s a great question. So let me see if I can explain it in simple terms. So in every legal opinion or decision, setting aside the facts and the procedural history that get recounted in the opinion, there’s what’s called the holding. That’s the court’s actual legal pronouncement on the specific legal question presented in the case. And it’s the thing that becomes binding law in that jurisdiction, and then there’s everything else. Dicta is basically the everything else. Sometimes, judges will write things, dicta, in their opinions that aren’t actually necessary to resolve the case or controversy before them. So those comments, or observations, or musings are just that, they do not become legally binding.

The same is true of course for dissenting opinions. Those opinions obviously do not carry the day, because they’re in the dissent, and therefore, do not become binding law. That said, future litigants will sometimes pick up on these dicta and incorporate them into their briefs. And so if a future judge finds those dicta compelling, they could eventually make their way into later opinions and become part of those cases, holdings, and in that way, eventually become binding law, just like the reasoning in a dissent can one day in the future become the reasoning of a majority opinion. But for the purposes of your question, dicta are just passing comments and legal opinions with no actual binding legal authority.

This question comes in an email from Eric, who asks, “Can a president issue executive orders to alter the composition of the Supreme Court, such as imposing term limits, or compelling justices appointed during a non-popular vote winning presidency to resign?” Well, Eric, that’s an interesting way of thinking. Short answer to your question is, no way, presidents don’t have that power. Imagine if they did, it would wreak some kind of havoc. Presidents can’t force justices to resign, can’t get rid of them, can’t take away their life tenure on their own authority, and certainly, not through an executive order. Now, the fact that Supreme Court changes and reforms cannot be done by executive order doesn’t mean it can’t be done at all. Many features and characteristics of the Supreme Court, for instance, the number of justices or control over the court’s docket, are not specified in the Constitution.

The constitution’s silence on those issues therefore means Congress is free to legislate, as it sees fit, on those kinds of issues. In fact, various acts of Congress in the past have changed the number of justices on the court a number of times, until the number was ultimately fixed at nine. Nine is not specified in the Constitution itself. And by the way, as my guest, Steve Vladeck, points out in our conversation coming up, the Supreme Court Case Selections Act of 1988 effectively gave the court almost complete discretion over its docket, whereas before, the justices lacked that degree of power. There are, however, as I suggested, certain things that are specified in the Constitution, like life tenure, and that’s the thing that can’t be legislated away without a constitutional amendment. So again, although the president alone cannot reform the court by fiat, there are still several avenues of reform available to Congress, assuming you can find the will and consensus to act. So don’t hold your breath.

This question comes in an email from Adam. “Dear team, A question for the legal eagles. Why was the Julian Assange indictment, filed today, filed in the United States District Court for the Northern Marianna Islands?” With two question marks from Adam, “Is there a legal reason about jurisdiction, or was it simply because the terms of his guilty plea was he flew straight home to Australia, and that the islands was a logistically convenient US territory to officially sentence him at, and a quick stop over before he gets back on a plane to go to Australia. Loving CAFE Insider from afar. Warmly, from Sydney, Australia, Adam.” So Adam, thanks for your question about your new neighbor, Julian Assange, one of the founders of WikiLeaks, who was facing a serious set of charges, federal charges, in the United States, on Wednesday, did plead guilty in the district for the Northern Marianna Islands, was already sentenced and has landed safely in Australia where he’s a citizen.

And there are a lot of things that are odd about the resolution of this case, but maybe that’s in part because there were a lot of things that were unique and odd about the unfolding of the case in the first place. As a reminder, Julian Assange was charged in federal district court in the US, in the Eastern District of Virginia, with 18 total counts, 17 charges of espionage, and one charge of computer misuse in connection with publications by WikiLeaks, which, as I mentioned, he co-founded in 2006. This week, however, he pled guilty… and it’s important that he pled, he didn’t pleaded guilty, he pled guilty under the US Espionage Act to a single criminal count of conspiracy to obtain and disclose national defense information.

And I think, partly, what was going on here was not a legal jurisdictional reason why he had to plead guilty in the Northern Mariana Islands. In fact, it’s very unusual for someone to plead guilty in some district that they were not charged in. Ordinarily, you would plead guilty in front of the judge to whom your case was assigned and where the case was brought. And in fact, under the federal system, you must be present for your guilty plea for a lot of purposes, including for the judge to be able to make an in-person determination that the plea is voluntary and knowing, and that you haven’t been compelled or coerced in any way, and that you understand the consequences of your plea. So why the Marianne Islands? Well, it seems from the reporting, especially from the Wall Street Journal, that there had been negotiations underway between the Justice Department and Julian Assange’s lawyers for the last number of months. And in March, the Wall Street Journal reported, one of the sticking points was that Assange, for whatever reason, had a desire to never set foot in the US, or at least the continental US.

And it may be the case that the US had the same desire to not have Assange come back to the mainland of the United States. So I think for diplomatic reasons, legal reasons, and all sorts of other reasons, both sides wanted to resolve the case, there was diplomatic pressure being placed in the United States by Australia and some other folks as well. And so probably, people thought it wasn’t a big deal to accede to the request to plead guilty in someplace other than the Eastern District of Virginia. While we’re on the subject though, I would note that there are two other unusual things about this resolution. One is that Assange pled guilty and was sentenced basically simultaneously to 62 months that he’d already served in a prison in the UK.

Ordinarily, as you may know, if you listen to the podcast on a regular basis, in the federal system, if there’s a guilty plea or a conviction due to jury verdict, a few months goes by for a pre-sentence report to be created for people to make arguments about what the proper sentence should be, and the sentencing takes place many, many weeks after the conviction. Not so in this case, so it’s a little bit unusual, although not unheard of. And the other unusual thing is the nature of the allocution. The allocution is the statement that a pleading defendant makes in his or her own words asked by the judge, “What did you do that was wrong? What did you do that’s causing you to plead guilty?” And so usually, for a judge to find that a guilty plea is voluntary and knowing, and is based on actual guilt, as opposed to some other factor, the defendant is required to say in his or her own words what they did wrong and express some contrition.

Here, interestingly, and I haven’t read the whole transcript, in fairness, but the excerpts I’ve seen in the press today, Wednesday, June 26th, read as follows, this is Assange speaking, “Working as a journalist, I encouraged my source to provide information that was said to be classified in order to publish that information. I believe that the First Amendment protected that activity. I believe that the First Amendment and the Espionage Act are in contradiction with each other. But I accept that it would be difficult to win such a case given all the circumstances.” That is not a statement of guilt, that is not a statement of contrition, that’s a statement of innocence, if you read that excerpt by itself. But then elsewhere, according to the reporting, Julian Assange said in court, as he must have been required to, in order for the judge to accept the guilty plea as proper and appropriate.

Assange said, “I am, in fact, guilty of the charge.” So it’s a little head scratching, but if both sides are okay with it, and the judge is okay with it, it’s done. And here, it was done. I’ll be right back with my conversation with Steve Vladeck.

THE INTERVIEW

This Supreme Court term has no shortage of big ticket cases, and they’re still coming down. Law professor, Supreme Court expert, and good friend of the show, Steve Vladeck, joins me to make sense of the high court. Steve Vladeck, welcome back to the show.

Steve Vladeck:

Thanks, Preet, great to be with you.

Preet Bharara:

It’s good to have you. We’re in the midst of Supreme Court season. We’re not done with the term. So I should point out to our listeners that, Steve, you and I are having this conversation on Tuesday, June 25th, at about 1:00 PM, Eastern Time, and we’re still awaiting some of the big decisions, the immunity decision, and some others, but there have been quite a few important ones that have come down and we’re going to get to that in some detail in a moment. But at this point, even though we’re not done, do you have any general observations about this Supreme Court term, or is it too early because we’re waiting for these last few opinions to drop?

Steve Vladeck:

So I think it’s too early except in one respect, which is, folks ought to understand that it is really not usual to have this many blockbuster cases, not just crammed into the last week of decisions, but just in general. If you look at big Supreme Court terms from 5, 10, 15 years ago, what made them big was maybe they had five or six major cases, one especially huge case, but we’re talking about 18 to 20 major nationally important cases at the Supreme Court this term. And I think it’s worth taking a step back and saying, “Hey-

Preet Bharara:

Why is that?

Steve Vladeck:

Yeah. This is different. So I think it’s a combination of two factors. I think one, you have some lower courts, especially the Fifth Circuit, the Federal Appeals Court, in New Orleans, that covers Louisiana and Mississippi and Texas, that really are, I think, somewhat consciously trying to push the Supreme Court to the right. 11 of the Supreme Court’s cases out of 58 or 59 this term are from the Fifth Circuit, and most of those have ended and are going to end in reversals. So some of those that the court has to take cases, like the mifepristone case, like Rahimi, which we’re going to talk about, the gun case, like the social media jawboning case, because lower courts are forcing on their hand. And predicting some of it is that you have a majority of justices who, love them or hate them, know that they have a majority.

And so what used to be the sort of the Anthony Kennedy effect, which was keeping the court from getting into itself and too excited about taking big cases, just take big cases, I think is no longer there. And so they’re not shy about interjecting themselves into the middle of all of our biggest disputes. The Trump immunity case is a good example of that. And so when you add those two things together, you get just this crazy high profile docket that, whether it was compressed into the last week of the term or not, would still be unusual by historical standards.

Preet Bharara:

Well, how would you compare the blockbuster nature, or the numerosity of blockbuster cases of this term as compared to last year or the year before when we got Dobbs, which overruled Roe?

Steve Vladeck:

Yeah, two years ago I think is probably the closest thing we’ve seen. And so folks, remember, in addition to Dobbs, we got Bruen, the big gun case, we got West Virginia v. EPA, the big environmental law case, and we had a series of significant religious liberty decisions, like the Coach Kennedy case, a case about private school vouchers in Maine. And I guess my reaction is that those were seven or eight major decisions, a couple of which, Bruen and Dobbs, were just epically major decisions. We still have twice as many this term, and cases that affect everything, from access to mifepristone to emergency abortions, we’re still waiting for that from the Supreme Court, can states regulate social media companies? We’re still waiting for that. The Trump immunity case, the January 6th prosecution, these major, major cases about the future of administrative law in this country. So I guess Dobbs might’ve been more visible to folks, at least compared to everything except Trump, but I can’t remember a Supreme Court term in our lifetimes that had just this many cases, that 10 years ago, would’ve been the defining case of the term.

Preet Bharara:

Can you explain to folks the timing and how it works? Obviously, someone doesn’t file a lawsuit on a Monday directly with the Supreme Court. There are multiple levels of review that occur before something got to the Supreme Court with some very limited exceptions. So this blockbuster term that you’re talking about, the seeds for this were planted when?

Steve Vladeck:

I think the seeds for this were planted, frankly, to some degree, Preet, by those big cases two years ago, by Dobbs and Bruen. We’re going to talk about Rahimi, and the mifepristone case, and the emergency abortion case, are both direct reactions to Dobbs. Well, so the mifepristone case, the challenges to mifepristone, this drug that’s so important in the most common and the safest form of abortion, was filed four or five months after Dobbs was decided.

Preet Bharara:

I’ve been saying, with Joyce Vance, on our Insider podcast that we’re seeing a wave of litigants being emboldened by the overturning of precedent, so why not take a shot? Is that fair?

Steve Vladeck:

I think that’s right, and I would just add to that, and we’re seeing lower courts, that are usually better at screening these fringe cases, not screening them, I think that’s the Fifth Circuit effect. When we look at the final scorecard for this term, in a week or two, we’re going to end up seeing on the Fifth Circuit having been reversed in the mifepristone case, in Rahimi, in the CFPB, the Consumer Financial Protection Bureau funding case, probably in the social media cases, probably in the jawboning case. And that is, I think, an example of right-wing litigants steering cases into district courts, in Texas and the Fifth Circuit, getting pretty favorable rulings from those courts, and then putting the pressure on the Supreme Court to either reign them in or to let it go. And I think the Supreme Court is in this awkward position of, in one set of rulings, signaling that it’s open season for these kinds of cases, and then in another set of ruling, saying, “Wait a second, lower courts, what are you doing?” And that’s actually ironically part of what’s going on in Rahimi.

Preet Bharara:

Can you explain whether or not circuit courts, the Fifth Circuit in particular… and I’m going to ask you some general questions about the circuits to explain to the audience as well, but is there some lesson that gets learned either by litigants or the lower courts, or does everyone just take their shot as best as they can? In other words, the bad box score achieved by the Fifth Circuit in this term, as you have referred to it, will that tell the Fifth Circuit judges, individually or as a whole, to be a little more cautious going forward, or not?

Steve Vladeck:

I think the answer is yes, in the sense that there are 17 active judges on the Fifth Circuit, and their success rate at the Supreme Court, or lack thereof, will hit differently with each of them. What is so striking to me, Preet, is the Fifth Circuit might end up with a terrible scorecard this term, but it had a terrible scorecard last term. Last year, it had the worst success rate in the Supreme Court, of any lower court in the country, and that didn’t seem to impose any limits.

Preet Bharara:

But what’s interesting about that is, that’s because, I think you’re saying, that the Fifth Circuit is even more out of whack, more conservative, more ideologically right than the Supreme Court, but you could also imagine a circuit that was progressive that would have a bad scorecard in the Supreme Court too. Do we see any of that?

Steve Vladeck:

So we actually don’t. So historically-

Preet Bharara:

The Ninth Circuit, I thought, was maybe in that category from time to time.

Steve Vladeck:

So I would say, Preet, 10 or 15 years ago, that was true. So 10 or 15 years ago, you would see terms where the Supreme Court would take 12, 13, 14 cases from the Ninth Circuit, which, by itself, is not crazy because the Ninth Circuit hears more cases than any other federal appeals court, hears almost twice as many as the Fifth Circuit alone, but then would reverse maybe three quarters or 80% of them. Preet, at least, as we’re talking, on June 25th, the Ninth Circuit so far, this term is 5 for 10. So it’s batting exactly 500. And ironically, the only court right now that has a worse record than the Fifth Circuit is the Second Circuit, the federal appeals court that so well in New York.

And that I think is partly a function of just a disconnect between even pretty moderate judges on the Second Circuit and the Supreme Court when it comes to the interpretation of federal criminal statutes. But I think that the reality is that there is no court that is nearly as out of step with the Supreme Court on the left side of the ideological spectrum today, as the Fifth Circuit is on the right, which is pretty remarkable when you think about where the Supreme Court itself-

Preet Bharara:

Right. Right. It’s a 6-3 court. Can you do a little primer for the audience about the circuit courts? So there are three levels in the federal system. You have the United States District Courts, Southern District of New York is one, there are four district courts in New York. Some states have one district court, like Massachusetts and like Arizona, some have multiple, like New York and California, and then all of those district courts feed into one designated appeals court. Could you describe how many appeals courts there are and how they’re divided up, allocated?

Steve Vladeck:

Yeah. So in the federal system, there are 13 federal appeals courts, 12 of them are geographic. So there’s the first through 11th circuits, and there’s the DC circuit. And those 12 courts, all of their jurisdiction is basically defined by where they sit. So the Second Circuit covers New York, and Connecticut, and Vermont. The DC circuit covers DC, but that’s an unusual number of cases because of how many lawsuits against the federal governor filed there. And then there’s the federal circuit, the the weird stepsister of the other 12 courts of appeals, which hears appeals in sort of a smorgasbord of specialty cases, veterans appeals, contract claims against the federal government, patent appeals, tax appeals, those all go to the federal circuit. And the idea, Preet, is that with the exception of the federal circuit, this kind of geographic distribution is actually a pretty healthy way of having a little bit of local influence on the law, but also having judges who come from that part of the country resolving the issues that are coming up in those states.

And so the Supreme Court obviously, in addition to reviewing all 50 state courts, reviews all 13 federal courts of appeals. These days, pretty close to 95% of the cases the US Supreme Court takes are from the lower federal courts. It’s really actually now pretty rare to see the Supreme Court taking a bunch of appeals directly from state courts. In the old days, that wasn’t true. In the old days, as recently as 40, 50 years ago, it was closer to half-and-half. And so we’ve seen a real shift toward the federal courts of appeals, Preet, having the last word, because the Supreme Court’s taking 60 cases a year, whereas there are tens of thousands of cases where the federal courts of appeals say what they’re going to say, and then the Supreme Court either isn’t asked to or doesn’t agree to take up an appeal where the federal courts of appeals are getting the last word. It’s part of why they’ve become so important in really every facet of federal litigation today.

Preet Bharara:

In your mind, and in your view, should the Supreme Court be taking more cases, or fewer cases, or different kinds of cases?

Steve Vladeck:

I am a bit dogmatic about this. I think the Supreme Court really ought to be taking more cases of every shape and size. This is going to be probably the fifth term in a row where the Supreme Court issues, 60 or fewer, what we call signed decisions in merits cases, so the real sort of full nine yards. What is striking about that number is that before five years ago, the last time the Supreme Court had handed down 60 or fewer decisions, Preet, was 1864. 30 years ago, the court was handing down-

Preet Bharara:

I barely remember 1864.

Steve Vladeck:

Who does?

Preet Bharara:

I was a very young lad, 1864.

Steve Vladeck:

Fighting in the Union Army.

Preet Bharara:

I don’t even think Carter was born in 1864.

Steve Vladeck:

I don’t even think Biden was born in 1864. But what’s straight-

Preet Bharara:

So are they just getting lazy because they’re going in a lot of junkets or what?

Steve Vladeck:

No. I think they’re getting arrogant, which is, in some respects, worse than lazy. So part of what happened is that in the 1980s, Congress gave the Supreme Court complete control over its docket. So up until 1988, the Supreme Court still had to hear a pretty decent number of appeals, especially from state courts. And in 1988, Congress passed a statute that says, “No, Supreme Court, except for a really small slice of cases, you basically can pick and choose which cases you are going to hear.” And Preet, for the better part of 20 years, the court used that power pretty aggressively, it was hearing maybe 90 cases per term in the 1990s. That number may have dropped into the ’80s and the early 2000s. But now that we’re in the low 60s and high 50s, I think part of what’s going on is that you no longer have the ability of both ideological sides of the court to force a grant, it takes four votes to grant certiorari. And obviously, there are not four Democratic appointees, so every grant today requires a Republican appointee to join it.

I think you have a court that is less worried about its middle. So in the old days, you’d have grants just because Justice Kennedy or Justice O’Connor wanted the court to grant, and they’ve got somebody to go along with them. That’s less of an issue now. And Preet, I think the category that has fallen out the most is the court has stopped taking, for the most part, direct appeals in state criminal cases, where you have criminal defendants in New Mexico, or New York, or Texas, who have constitutional objections to some feature of their trial, their conviction, or their sentence. And the Supreme Court, in the old days, would take a whole bunch of those every year to hash out what the criminal procedure rules were. Last term, so the term that ended a year ago, the court took one direct appeal in a criminal case from a state court. I think this term, the total is going to end up being two. And that’s a pretty remarkable disappearance, and a pretty remarkable set of cases-

Preet Bharara:

And why is that? Because the states are getting it all right every time now?

Steve Vladeck:

You’re the former prosecutor, not me. No, I think it’s because the court just doesn’t care, and I think that’s unfortunate. And it’s unfortunate not just because-

Preet Bharara:

They care about federal criminal law quite a bit, but not state criminal law?

Steve Vladeck:

So I think they care about federal substantive criminal law. So I think they care quite a bit about the meaning of federal criminal statutes. But Preet, we’re not seeing this court take a bunch of Fourth Amendment cases, or Fifth Amendment cases, or even Sixth Amendment cases, and that matters not just because of the individual defendants in those cases who aren’t getting potential relief, it matters because, Preet, as you know, the court needs to make law not just for the party before them, but because if you want to prevail in a habeas petition, if you’re a post-conviction prisoner, if you are a civil rights plaintiff, it often really matters whether or not the underlying law is, “clearly established,” and the fewer of these cases the court has taken, the less law the court is establishing.

Preet Bharara:

Is there something to be said for the trend as I see it in the last few years, and you’ve mentioned a bunch of these cases, the trend towards overturning even fairly recent precedent, whether it’s in the area of affirmative action, or reproductive rights, or anything else? How does that play into litigation strategy? And I guess we talked about this a little bit at the outset, are people bringing cases that they wouldn’t have thought about bringing some years ago because they think stare decisis, or the respect for precedent? Is that a fairly all time low?

Steve Vladeck:

I think the answer to that is, clearly, yes. The only thing I might suggest a friendly memo to, whether it’s because it’s just about less respect for stare decisis, or because they think they just have the votes in particular areas, you end up in the same place. A really good example of this is a case that is almost certainly going to get back to the Supreme Court next term, which is the challenge to Texas’s state level deportation system. Its shorthand is SB 4, is the bill in Texas. This came up to the court in March on an emergency application. It fizzled away because the Fifth Circuit actually put the law on hold, pending appeal. We’re still waiting for the Fifth Circuit’s decision and the appeal.

But what’s fascinating about SB 4 is here’s a piece of state legislation, whose proponents, including Governor Greg Abbott, explicitly said that the purpose of the legislation was to adopt Justice Scalia’s dissent in a Supreme Court case from 12 years ago called Arizona v. the United States. Well, the only way that you’re going to win, the only way that a law that’s based on the dissent is going to be upheld by the Supreme Court is if the dissent becomes the majority. And so it’s pretty clear that the whole conceit of SB 4 is to get the Supreme Court to revisit the Arizona case. That’s a really, I think, especially visible example, but there are countless other examples across the-

Preet Bharara:

How radical is that? My recollection is, even with Dobbs that overturned Roe, at the lower court level, I thought that the litigants were trying to assuage concerns of the court by saying they were not… maybe I have this wrong, you’ll correct me, professor, I thought they were suggesting to the lower court that they didn’t have an interest in and they were not seeking reversal of Roe, but they were seeking something more narrow than that. Am I correct about that?

Steve Vladeck:

I think that was right, Preet, up until Justice Ginsburg died. And I think when Justice Ginsburg died in September of 2020 and was replaced by Justice Barrett, I think the tone changed pretty quickly. If you go back and look at the cert petition, the first filing by Mississippi in Dobbs, you will find no request to overrule Roe.

Preet Bharara:

I’m imagining once upon a time, that was doomed to failure, and it would’ve been futile to outright, in the lower court litigation, say that your hope, and prayer, and aim was to overturn a precedent, that, by the way, multiple Supreme Court justices when they were nominees, paid some homage to as being super precedent or settled precedent. That’s all out the window for real now, isn’t it?

Steve Vladeck:

I think the short answer is yes. Are there going to be cases where the Supreme Court falls back on the idea of stare decisis to justify follow an earlier precedent? Sure. We saw that just last week in this nerdy federal criminal case where the justices were fighting over the meaning of this older decision called Almendarez-Torres. Is stare decisis actually going to be the reason why the court is not in a hurry to overrule precedents? No. And I think, Preet, if we expand this out half a step, it’s not just that the current court is more willing to consider dramatic shifts in its doctrine, it’s that the shifts are themselves destabilizing. If you think about all of the administrative law cases that the court has decided this term, that the court still is going to decide this week and next week, the real unifying theme of them is that we’re not going to have this stable universe of deferring to executive branch agencies, it’s really going to be just, does each individual court reviewing each individual federal program believe that the program is within all fours of the relevant statutory parameters?

And when you think about how ideologically diverse the federal benches, that means that plaintiffs are going to find the most sympathetic judges they can, and every single federal program, all of a sudden, becomes potentially subject to serious judicial constraint. How we feel about that might vary based on who’s in charge at a given moment, but in the main, what that really is a recipe for chaos.

Preet Bharara:

So let’s get to the case we mentioned a couple of times, Rahimi, gun case, 8-1, so pretty lopsided majority there. The one dissenter, Clarence Thomas… Why don’t you tell folks what the case is about?

Steve Vladeck:

Sure. So this is a great example of everything we’ve been talking about. So two years ago, the Supreme Court in the Bruen case really radically shifted its approach to Second Amendment cases. And what the real shift was was requiring government defenders of any kind of gun control regulation, any kind of ban, to find some kind of analog during the relevant historical time period, whether that’s 1791, when the Second Amendment was adopted, or 1868, when the 14th Amendment was adopted, which is how the Second Amendment applies to local and state governments. And this was a shift because for 14 years after the Heller case in 2008, lower courts had been doing basically a balancing test of how compelling was the government’s justification for the regulation versus how overbroad or under inclusive was the regulation. And now, the court says, “No, no, no, no, no, none of that matters. It doesn’t matter how good an argument the government has, is there an analogy or not?”

And so lower courts have taken that and run with it, and Rahimi is a great example. So Zackey Rahimi was convicted of possessing a firearm while he was subject to a domestic violence-related restraining order, basically, where a state judge in Texas had found that Rahimi presented an imminent threat of serious bodily harm to his intimate partner. And the Fifth Circuit, the federal appeals court we’ve been talking about, held that that law, the federal ban on gun possession by those subject to domestic violence restraining orders, was unconstitutional after Bruen because there was no such thing as a domestic violence-related restraining order-

Preet Bharara:

Dahlia Lithwick pointed out on the podcast recently, in fact, there were no laws really protecting women from domestic violence, and there was carte blanche, so-

Steve Vladeck:

And women couldn’t vote-

Preet Bharara:

And women couldn’t vote.

Steve Vladeck:

To back up half a step, the federal government, which obviously was the prosecutor in Rahimi, argued that it didn’t need to show that there were specific bans on domestic violence during the relevant historical periods, it was enough that at the founding, there were plenty of examples of state laws that banned gun… disarmed people who were dangerous, and people who were dangerous in lots of different respects. And so the government’s argument was, “Hey, someone who is currently subject to a domestic violence-related restraining order has been adjudicated to be dangerous by a judge, and that should be enough.” It wasn’t enough for the Fifth Circuit, and it was enough for eight of the nine justices on the Supreme Court.

Preet Bharara:

I’ll be right back with Steve Vladeck after this. Dahlia Lithwick and I also talked a lot about originalism and her critique of originalism. I want to get to that, and how the decision in this case arguably undermines the whole theory of originalism. Why did Clarence Thomas dissent?

Steve Vladeck:

Well, I think Thomas wrote the majority decision in Bruen. I think Thomas thinks that he meant what he said in Bruen. And so for Justice Thomas, at least, that kind of very woolen analogy hunting is exactly what he instructed lower courts to do, and that’s what the Fifth Circuit did in this case. So from Thomas’s perspective, this is exactly what he meant to wreak.

Preet Bharara:

Yeah. So from his perspective, and pursuant to his brand and style of originalism, there was no proper history or tradition in the right time period to allow this statute to be the law of the land. Is that fair?

Steve Vladeck:

Exactly so.

Preet Bharara:

Okay. So why didn’t he get anybody else to join him?

Steve Vladeck:

Well, so this is what’s fascinating about Rahimi. So there are six separate opinions just by the eight justices in the majority, and I think part of what’s going on is-

Preet Bharara:

For the audience, how unusual is that?

Steve Vladeck:

Very. Preet, it’s not unusual at all to have one or two concurrences in a majority opinion, especially in a divisive case. Five is a lot. And what’s striking about that is with the exception of the three Democratic appointees, five of the justices who are in the majority in Rahimi are in the majority in Bruen.

Preet Bharara:

Professor, explain.

Steve Vladeck:

I think the short answer is that either they didn’t mean what Thomas said back in 2022, or they didn’t realize just how cataclysmic the consequences of it were going to be.

Preet Bharara:

Yeah. So I want to get to that, because we talk about principle, and we talk about these doctrines, some of which seem to be made up, some of which are quite new, some of which fade, and I’m not even necessarily suggesting what I’m about to say is a bad thing. At some point, to the justices, look at something with common sense and open eyes and realize, the idea of saying that somebody, who has an adjudicated restraining order because they have engaged in domestic violence, to give that person a gun when the legislature has said, “Reasonably, you can’t have a gun during the pendency of the restraining order.” To come up with that decision is just completely batshit nuts, and we’re going to dress up our decision, whether it goes against some other doctrines that we have previously espoused or not, and not let that happen. I’m not even saying that’s necessarily a bad thing, but is it fair to attribute that motivation or underlying principle, which is not really a principle, to this?

Steve Vladeck:

Not only is it fair, I think Justice Barrett almost says that out loud in her concurrence. And what’s striking about that, Preet, is it’s not just that it’s a methodological indictment of originalism, it’s that it is the epitome of what folks like me would call common law judging, which is, one of your jobs as a judge is to live in the real world, and to appreciate that the law is not an abstraction. The law must be stable, but it must not stand still. And that’s I think what was so crazy about Bruen when it came down two years ago, and I think we’ve seen the consequence. Now, I should say, before folks pat themselves on the back and bust out the victory cigars for the demise of originalism, Rahimi was the lowest hanging of low hanging fruit.

And so the court is going to have to take much harder cases about guns and this historical approach, probably as soon as next term. Just to take one example, there is a federal law that bans possession of firearms by anyone who’s been convicted of any felony. There are plenty of felonies that are not, by anyone’s definition, violent. And so I think the question’s going to be, how much is the seeming consensus, in the majority and concurring opinions in Rahimi, just a function of how easy a case this was versus the harder cases still to come?

Preet Bharara:

How much does it matter, in each of these gun possession cases, that the trigger for taking away the firearm is something that has been formally adjudicated? So for example, in this case, there was a formally adjudicated restraining order, which I think was important. In the examples that you mentioned, felon in possession, cases which we in the southern district brought all the time, my first criminal trial as a young lawyer was in that kind of case, there’s a proper legal adjudication of a conviction. And the reason I ask that is the elephant in the room, with regard to this species of cases, to me is the Hunter Biden case, where there’s another statutory provision that disallows someone who is addicted to narcotics to possess a gun, and there’s no adjudication of that necessary. How’s a challenge to that going to play out, and what kind of strange bedfellows are we going to find?

Steve Vladeck:

So I had thought that that was one weird feature of the Rahimi case, and this came up during the oral argument. Justice Gorsuch in particular, and at least to me, not especially surprisingly, was worried about the due process side of this, which is disarming someone based upon maybe a very minimal level of process. Preet, as you say, that’s not an issue in Rahimi because he actually was adjudicated to be violent, it’s not an issue in the felon in possession cases because they’ve been adjudicated to be felons. But yeah, I think the court’s going to have real concerns, and it might be not exactly the ideological lineup you’d expect. I could see a world in which someone like a Justice Jackson would be on the Gorsuch side, where the underlying predicate is not the result of an intact and valid judgment of a court of record. That’s even more of a reason to be wary of it. But that’s more a due process point to me, I think, than a Second Amendment piece.

Preet Bharara:

So in that case, which presumably will maybe one day get up to the Supreme Court, the addict, firearm possession scenario, going back to the point we were making about the common sense in the domestic violence situation, does common sense play a role in the addict scenario? Do people really want someone, whether it’s adjudicated or not, but there’s some evidence of and proof of serious narcotics addiction, put a firearm in the hands of that person?

Steve Vladeck:

I think that’s… folks are going to have different answers based on their Second Amendment priors. I’m a bit idiosyncratic on the Second Amendment. I actually think that there are features of Heller that are not crazy, but I do think that the right answer-

Preet Bharara:

That’s your Texas talking.

Steve Vladeck:

Hey, I’m trying to get out. But Preet, even Justice Scalia thought that there were plenty of regulations of guns that would be perfectly constitutional. And I think what has happened in the 15, I guess now 16 years since Heller, is the pendulum has swung further in favor of the no regulation crowd than I would’ve thought, and that’s where Justice Thomas basically is. Thomas is like, “Unless you can show that this exact kind of regulation had this historical pedigree, we’re not going to allow it today.” I’ll just say, the last point to me about that is on the sort of what is originalism? What’s striking about the separate opinions in Rahimi is that they all have slightly different conceptions of what originalism even is. Justice Barrett, at one point, even coins a new kind of originalism, which she calls contours based originalism… original contours originalism, and-

Preet Bharara:

I’ve got one. I’ve got one. You want to hear mine?

Steve Vladeck:

Please.

Preet Bharara:

A numbers of originalism. How about that?

Steve Vladeck:

I mean, it’s what we’re doing. And-

Preet Bharara:

So doesn’t that just confirm clearly the doctrinal bankruptcy of originalism in any form?

Steve Vladeck:

Yes. And so this is something that the nerdy law professors, I think, are well aware of but don’t talk about enough, there is a real disconnect between the pure academic originalism that you’ll see in certain law review articles and what the Supreme Court is doing. And what the Supreme Court is doing is not really defended that aggressively even by the most, I think, staunch academic originalists, because it’s not originalism. And the problem with that, Preet, is… keep in mind, this is not just a fight of methodologies, for decades, the defense of originalism has been that it is the one true God, that it is the pure objective way-

Preet Bharara:

I think it’s in the commandments, which we’re going to talk about also.

Steve Vladeck:

Well, that’s coming too. But the defense of originalism as the dominant methodology of constitutional interpretation is that it is singular and produces objective answers, and the more that it becomes clear to everyone that it is not singular and that it does not produce objective answers, the more that it’s just like any other way of interpreting the Constitution, which doesn’t make it per se invalid, it just makes it no better and no more entitled to prime of placement than anything else.

Preet Bharara:

Can you address a procedural question? Was the court pretty much obligated to take up the Rahimi case given what the lower court had left the world with? So in other words, if the Supreme Court had not taken up Rahimi, the highest circuit court would’ve decided that you can’t take the gun away from this person. Would that have been applicable only in that circuit or all over the country? How would that have played out if the court had simply decided, “We’re too busy, we’re not taking this case”?

Steve Vladeck:

So it would’ve only played out in the circuit. Circuits only bind themselves and courts within their circuit. So the Fifth Circuit-

Preet Bharara:

Right. But then wouldn’t this have spread? Wouldn’t there have been more challenges if the Fifth Circuit opinion was allowed to stand?

Steve Vladeck:

Sure. And there were even right after Rahimi. Even while the Fifth Circuit opinion was on the books, we saw lots of litigants trying to cite the Fifth Circuit’s analysis as why they should win. Hunter Biden being one of them. I think the short answer, Preet, is the court maybe could have left this alone for a year or two, but even in the Fifth Circuit, even just if every other court of appeals had ignored Rahimi, you would still have a world in which the Fifth Circuit was striking down one gun control regulation after another. And I think this was a tacit recognition by the court, that it had to cut this off relatively early on before it spread.

Preet Bharara:

You’re now the third professor of law that I am able to ask the question, the lower court’s decision in Rahimi that went the other way, what grade would you give that legal reasoning?

Steve Vladeck:

I’m a softie, B-.

Preet Bharara:

Not a failing grade?

Steve Vladeck:

No, because listen, I think people can debate how much of Rahimi is the Supreme Court’s fault in Bruen, it is clearly, at least partly, the Supreme Court’s fault. And I don’t think that the Fifth Circuit’s opinion in Rahimi followed from Bruen at all, Thomas clearly did. But I also think that when I think of the wackiest and most indefensible things the Fifth Circuit has done, Preet, in the last couple of years, Rahimi is not that high on the list, just because Bruen itself I think was vulnerable to just such a wooden application.

Preet Bharara:

So here’s the problem with the question I asked, and I know I asked it, but I’m going to critique my own question, it presupposes that judges are making decisions competently or incompetently. Generally speaking, people who have risen to be on the Supreme Court, certainly, and the appellate courts also, are very smart, they’re very accomplished, they’re good lawyers. Sometimes the dummy gets through once in a while, but it’s not frequent. So that in a way, the question of how you would grade an opinion presupposes something that I’m not sure is true, that an incorrect decision or decision you would disagree with, or that ultimately the Supreme Court disagrees with, turns on the competency of the analysis as opposed to some ideological factor. Does that make any sense?

Steve Vladeck:

It does. It’s a fair point. I guess, I would just say in response that I think-

Preet Bharara:

Well, you graded it. You fell for the question.

Steve Vladeck:

I did fall for it, although it’s instinctive. What grade would you give it? What grade would you give this pizza?

Preet Bharara:

Yeah. It’s just hard for people to understand. What I’m getting at is, help people who are thoughtful citizens, who care about these things, and were not lawyers, and certainly, not constitutional lawyers, how it can be that one set of judges who are really smart, and got appointed by a president and confirmed by the Senate, and a number of them on a panel decide something one way, and then a different bunch of robed folks, who also ideologically split, decide something completely a different way. Is that about brain function and intelligence, or something else?

Steve Vladeck:

I think it’s a combination of things. I think part of it’s intelligence. I think you might be slightly overstating the ability of the media and federal judge, but also-

Preet Bharara:

You know, judges listen to this podcast. I’m going to hear from them.

Steve Vladeck:

I didn’t name names. I’m not talking about anyone who listens to your podcast, but no-

Preet Bharara:

Are you talking about Aileen Cannon?

Steve Vladeck:

Well, so I was going to bring up Judge Cannon. So Cannon’s an interesting example. I think there’s a debate about whether she’s just in over her head, or whether she’s acting maliciously. And I’m very reluctant, in general, to ever impute bad faith to anyone when there are plausible explanations of how they did something wrong but in good faith. There are lots of ways that judges doing the best they can make good faith mistakes. Our legal system has three tiers of appellate review… or at least two full tiers of appellate review, because of that fact. And that can be because a judge just doesn’t understand the relevant doctrine the way that the appeals courts do, or a judge is just so inclined to lean in one direction in a particular case compared to their brethren on the appeals court.

It’s not true that just because the Supreme Court says something, that it’s right. And so I think-

Preet Bharara:

Amen to that.

Steve Vladeck:

But the point here is that we are able to look at an opinion and explain what is good about it and what is bad about it. And that’s part of my job. I write my newsletter to say, “Hey, take last year’s student loan case.” So I wrote a newsletter, the title of which was The Lawlessness of the Supreme Court Standing Analysis in the Student Loan Case. And I chose that word very carefully because I think most of what the Supreme Court does is perfectly lawful. I think the Supreme Court has the power to interpret the Constitution, even when it interprets the Constitution in ways I disagree with. I think the Supreme Court can believe that equal protection means different things than I think it should mean. What was so galling to me about the student loan case was that the court was only able to even reach the merits by asserting power that I think the Constitution didn’t reasonably give it, because I don’t think that Missouri had standing.

And I guess, I want to die on the hill that we can separate, and we should be able to separate, judicial decisions we disagree with because we just read the relevant text in a way that is reasonably different from the judges who were reading it, and judicial opinions that actually are, if not lawless, at least deeply, deeply flawed. And that’s a fight I want to have.

Preet Bharara:

Good, I’ll let you do that in a few minutes. I mentioned earlier the Ten Commandments, and this is something that I would expect would make its way to the Supreme Court potentially as well. The state of Louisiana, notwithstanding direct constitutional precedent to the contrary, has adopted a law that will require classrooms throughout the state of Louisiana to post the Ten Commandments. Is that another example of people just taking their shot because they have a number of personnel changes on the court? Because my recollection is that in 1980, the Supreme Court ruled exactly the opposite way, that such a thing would be a violation of the Establishment Clause, and I can’t remember if also the Free Exercise Clause, but both of those challenges have been brought by the ACLU already in Louisiana. What the heck is going on there?

Steve Vladeck:

So I think part of what’s going on is exactly what you say in the middle of that crazy last week of the term two years ago, when the court handed down Bruen and Dobbs, it also handed down those two cases, Carson v. Makin and Kennedy v. Bremerton. That really all but spelled the end of the so-called Lemon test, this 50-year-old standard for how to enforce the Establishment Clause. And the 1980 case you mentioned was based largely on Lemon. And so Louisiana says, “Well, hey, shoot, if Lemon is in the dustbin of history, as Justice Gorsuch tells us it is, then let’s take our shot.

Preet Bharara:

But then what is the stance… So can you take 45 seconds and describe the reasonable Lemon test?

Steve Vladeck:

Let’s back up a second. The basic idea behind the Lemon test was that a law is unconstitutional as an establishment of religion if it expresses a preference for a particular religious view, or even over your religion. It was a pretty sweeping broad no holds barred test, that over the last 15 or 20 years, as our debates over religious freedom have increasingly divided us along ideological grounds, had become a bete noire of conservatives because it, basically in their view, unduly handcuffed government from, the way they would say it, put in religion on equal footing to your religion. Without the Lemon test, I don’t know that it’s clear what the standard is for Establishment Clause challenges, other than that it’s going to be harder to prove them. And I think what Louisiana’s counting on is… the worst case scenario here is that three or four years from now, they get slapped down by the Supreme Court, but maybe along the way, they’ve got favorable decisions from a district court and the Fifth Circuit.

Preet Bharara:

But could this Ten Commandments case ultimately, if it reaches the Supreme Court, turn out to be like the mifepristone case, or the Rahimi case, that even though there are conservatives dominating the court, that at some point, it’s… Come on. Really? We’re going to force the Ten Commandments into all of our public classrooms, or no?

Steve Vladeck:

With the current court, yes. I think if this issue is decided by this court, this court will strike down the Ten Commandments in the classroom-

Preet Bharara:

Even this court?

Steve Vladeck:

Even this court. And if President Trump is elected in November, and if he gets to replace more justices, I’m not sure how confident I would feel about that, but at least with this court, even this court. What’s complicated about that, Preet, of course is, then you get folks who are defenders of this court who say, “See? Look, this court is not nearly as bad as you crazy people say it is.”

Preet Bharara:

Yeah, how do you respond to that?

Steve Vladeck:

I respond to them with the notion that elementary statistics should be mandatory education in this country. You can’t measure the current court’s ideological bent in a vacuum and without regard to the cases it’s taken. There was a piece in Politico last month that drove me almost to insanity because it was like, “Look at how often the justices are not dividing along ideological lines.” And my response is, “Well, yeah, in a bankruptcy case, I’m not expecting the court to be fighting over originalism.” But when you have ideologically charged cases that are pushing even this court further to the right than it wants to go, I don’t know that it tells us that much about this court, that they’re pushing back, compared to what is telling us about the lower courts-

Preet Bharara:

You make an important point. It can always be worse.

Steve Vladeck:

Well, not only can it always be worse, but just, Preet, I think something we don’t talk about nearly enough when we talk about the Supreme Court is how important selection bias is in any effort to describe the overall work of the court, and the fact that the justices get to pick and choose 98 to 99% of the cases that they decide ought to be included, whether it’s an op-ed or an academic piece, that tries to draw broader conclusions from voting patterns.

Preet Bharara:

Your point about selection bias and their ability to select cases is very important, but it leads me to, I guess, my final set of questions, which is about court’s ability to select which questions, even within a case, it will answer, and select the basis on which they will decide a question, whether it’s a narrow basis or a broad basis, or something in between. So in the mifepristone case, one of the reasons you could have consensus was that there was not really an addressing of the underlying issues, it was all about standing and whether or not these particular petitioners and plaintiffs had proper standing under the law. So they didn’t have to have disagreements and squabbles about the efficacy of mifepristone or the FDA’s authority with respect to Mifepristone, they chose to decide the question narrowly. So I guess my broader question is, and I want to point to another Supreme Court case recently decided, what’s the theory behind which or under which justices decide to go narrow or broad? And I think we were taught in law school, generally speaking, shouldn’t the court go narrow and narrow as possible?

Steve Vladeck:

This is a big question. So there is a huge tension… I mean, formally, I spend half of one class, in reality, I spend the entire semester of my federal courts class on the divide between what’s called the dispute resolution model and the law declaration model of the Supreme Court. And the dispute resolution model says, “Hey, your job is to decide the case before you. And once you’ve decided the case before you, you’re done. And it’s actually inconsistent with your job to do more than to decide the case before you.” The law declaration model is, “Hey, your job is actually to settle what the law means for everyone in the country. You are a constitutional court. As a constitutional court, your job is to bring finality, not just to the individual cases but to the broader disputes that you’re asked to decide.”

And I think reality is that the Supreme Court, as it has taken, as its docket has shrunk and it’s taken fewer and fewer cases, I think there’s been a natural instinct and impulse to gravitate more toward a law declaration model. That’s-

Preet Bharara:

Yeah, but they’re not consistent.

Steve Vladeck:

No, but that’s the problem.

Preet Bharara:

Yeah. So there might be an instinct, generally speaking, in a trend towards law declaration, but boy, that’s a problem in the mifepristone case, we’re going to go back to dispute resolution. But does it really matter in the real world or not?

Steve Vladeck:

I think it matters in the real world for two reasons. So first, the inconsistency is never explained, which leaves lower courts, those trying to predict the Supreme Court-

Preet Bharara:

Isn’t it explained by professors? Isn’t it explained by originalism?

Steve Vladeck:

I don’t think so.

Preet Bharara:

That was my joke. That was my joke.

Steve Vladeck:

But I was taking it seriously. That’s twice you’ve gotten me in this episode. I think the problem is… take the Trump immunity case. I was somewhat horrified during the oral argument in the Trump immunity case when Justice Gorsuch started waxing on about how the court needs to write a rule for the ages. And my reaction to that was, “No, you don’t.” There are contexts in which it would be helpful to have a rule for the ages, because you might have future civil rights plaintiffs, you might have future prisoners who can only win if you have written a rule for the ages. But when you have these messy one-off, unlikely to recur constitutional cases, if you can get a majority with a narrow opinion that you couldn’t hold with a broad one, take the majority.

And I think the problem is that the court is intensely aware of this tension, and I think probably, just as aware that it doesn’t do a good job of being consistent in how it resolves this tension, but it never resolves it, it never addresses it, it never engages with it. And I think we’re going to see that come up a lot in some of the big decisions we get in the next week, as we’ve already seen it in the mifepristone case.

Preet Bharara:

I meant to ask this question earlier, how do you think Justice Scalia would’ve thought about and decided the gun case we spent a lot of time talking about, the Rahimi case, the restraining order, gun possession case. Would he have been with Thomas?

Steve Vladeck:

I doubt it. The problem with Scalia-

Preet Bharara:

Even Scalia would not have been with Thomas?

Steve Vladeck:

So the problem with Scalia is there really were two Scalias. There was the Scalia of his first 20-ish years on the Supreme Court, and there was the Scalia of the last five to seven. And the Scalia of the last five to seven was, I think, meaner, and I think a little-

Preet Bharara:

Which one was funnier?

Steve Vladeck:

The first one. And if you read a lot of Scalia opinions and not just in the high profile cases, his early work is good. I don’t agree with a lot of it, I don’t agree with most of his dissent in Morrison, but it’s good stuff. His later stuff got sloppy, and it got lazy, and it got angry old man-ish. And so-

Preet Bharara:

Are you talking about Scalia or Alito?

Steve Vladeck:

Well, as one, so the other.

Preet Bharara:

If the robe fits.

Steve Vladeck:

But it’s interesting to ask the question of why… I mean, Preet, it’s a common narrative that there are Republican appointees who gravitated to the left while they were on the court, whether it was John Paul Stevens, or David Souter, or even Anthony Kennedy to some degree. It’s interesting to me how I think Scalia, and as we’re seeing with Alito, have really, really gravitated not just to the right, but to the almost the fringy rights in ways that I think are worrisome.

So just to answer your question about Alito, I think… about Scalia, I think if it was the Scalia who wrote Heller, I think he probably would’ve upheld the law in Rahimi, and I think his majority opinion of Heller specifically identifies other gun controlled laws that he would’ve voted to uphold. If it was the Scalia of a couple of years later, I don’t know. And I think that was an interesting tension in Scalia’s own jurisprudence. I don’t think we’ve done a lot with in the eight years since he left us.

Preet Bharara:

So with Alito and Thomas, the die is pretty much cast, and they’ve been on the bench for a while, in Thomas’s case, for a very long while. Some of these newer folks like the Trump appointees, Kavanaugh, Barrett, and Gorsuch, can you glean or make any predictions about where they may drift and shift in one direction or another in the coming years based on the few terms that have just been completed?

Steve Vladeck:

I think it’s pretty easy now to predict where Gorsuch and Kavanaugh are going to be in many of the big cases.

Preet Bharara:

Yeah. Tell us.

Steve Vladeck:

I think Gorsuch has a libertarian streak that comes out only in some very small places, only with regard to criminal defendants in some procedure, in some statutory cases, immigrants, in some cases, Native Americans, I think across the board. I think he’s been as sympathetic a judge for tribes as we’ve seen on the court in a long time. But is otherwise, I think deeply in the Thomas, Alito camp, and the voting patterns I think reflect that. Kavanaugh, I think is-

Preet Bharara:

By the way, I’m going to note again for the record, as I have with previous guests, that for some reason, our law professors when talking about the court, sigh. I think Melissa Murray sighed multiple times during our conversation, and Professor Vladeck, you too.

Steve Vladeck:

It’s hard not to sigh in the institution that you care a lot about. And it’s like when your kids do something wrong, you chastise them, but you also sigh. It’s like, “How have I failed them?” So Kavanaugh, there’s a great quote in Ruth Marcus’s book about his confirmation, where Ruth got one of his colleagues on the DC circuit to say something to the effect of, “The thing you have to understand about Brett Kavanaugh is that he’s a fantastic colleague except when it matters.” If someone ever said that about me, I would crawl under a rock somewhere and probably never come out. But that’s Kavanaugh. I think Kavanaugh is going to be in the middle in a lot of these big cases, but probably not that many cases where he’s going to be the fifth vote with one of the other Republican appointees and the three Democratic appointees. And so that leads me to the person who I think is the most interesting in this whole conversation, which is Justice Barrett.

I think it’s going to be a really fascinating week, just between when you and I are recording and next Tuesday for Justice Barrett, because I think she’s going to be in the middle of many, if not most, of the big remaining cases. I think she has the assignment, meaning, that she’s probably writing the opinions in the social media cases, which would be a big deal. I think it’s entirely possible that she’s the median vote in the Trump immunity case. And I think that the big difference between Barrett and Kavanaugh is a result of their backgrounds. Kavanaugh was a political operative in the White House, politics were first, law was second. Whereas Barrett, she has rather far to the right views, but she was an academic first and a judge second.

And so I think it’s entirely possible that by this time next week, it’s going to be clear that this is actually Amy Coney Barrett’s court. And lo, though I wish it weren’t so, if we find ourselves come January of year at the beginning of a second Trump presidency, I think she probably becomes the most important person in this country. And that’s a bit of a horrifying thing to say, but I’d rather it be her than some of the other folks on the court right now.

Preet Bharara:

Steve Vladeck, always great to have you on the show. Thanks so much.

Steve Vladeck:

Thanks for having me.

Preet Bharara:

My conversation with Steve Vladeck continues for members of the CAFE Insider community. In the bonus for Insiders, we discuss judicial ethics and accountability for this Supreme Court.

Steve Vladeck:

There’s so much Congress could do, where you could have the same justices and they would at least be a little bit worried about the repercussions of running the Constitution off of a cliff.

Preet Bharara:

To try out the membership for just $1 for a month, had to cafe.com/insider. Again, that’s cafe.com/insider.

BUTTON

To end the show this week, I want to take a moment to bring to your attention a new advisory from the US Surgeon General, Dr. Vivek Murthy, who’s been a guest on the show. The new advisory declares gun violence in America, a public health crisis, addressing for the first time the dire issue of gun-related deaths as a matter of health rather than politics. The advisory mirrors similar ones from the past for smoking, climate change, or as we’ve discussed here, loneliness. Dr. Murthy’s newest report outlines just how much of a crisis gun violence is, especially for youth. “Since 2020,” the report details, “firearm related injury has been the leading cause of death for US children and adolescents, ages 1 to 19, surpassing car crashes, cancer, and drug overdoses or poisoning.” Now, the 1 to 19 grouping obviously excludes infants, and some suggest that including 18 and 19 year olds skews the stats, but that does not change the fact of a public health crisis that’s just devastating the young, and that’s shameful.

The report lays out substantial research on the use, impacts, and contributing factors to gun violence. It calls for increased research into health effects and prevention measures, and recommends a series of gun safety precautions proven to decrease gun-related deaths, like safe storage and background checks. It also identifies education, mental health care, and socioeconomic status as factors that contribute to gun violence. As the New York Times reported, Surgeon General advisories can have a tangible impact. After a 1964 smoking advisory was issued, Congress voted to require health warnings on cigarette packages, and smoking began to decline significantly. Dr. Murthy said this about the report, “This issue has been politicized, has been polarized over time. But I think when we understand that this is a public health issue, we have the opportunity to take it out of the realm politics and put it into the realm of public health.”

Gun violence is so pervasive and lethal in this country that oftentimes it can feel out of our control. It is devastating communities, schools, and our nation’s youth. So I hope you’ll join me in applauding this effort to address the health crisis that it is. Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Steve Vladeck. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-Preet. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media: Podcast Network.

The executive producer is Tamara Sepper. The Technical Director is David Tatasciore. The Deputy Editor is Celine Rohr. The Editorial Producer is Noa Azulai. The Associate Producer is Claudia Hernández, and the CAFE team is Matthew Billy, Nat Weiner, and Jake Kaplan. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.