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It’s ACB’s Seat Now

with John O. McGinnis,
hosted by Richard M. Reinsch II

Richard Reinsch (00:04):

Welcome to Liberty Law Talk I’m Richard Reinsch, today we’re talking with John McGinnis, about the addition of Amy Coney Barrett to the United States Supreme Court, and also the recently commenced Supreme Court term. We’ll discuss some of those cases and what else that we think Justice Barrett might contribute there. John McGinnis, many of you will know, is a long-time contributor to Law & Liberty. So we’re glad to have him on the program. He’s the George C. Dix Professor in Constitutional Law at Northwestern University. He’s the author of numerous books and essays and law review papers, including his most recent book was a co-authored one with Mike Rappaport, Originalism and the Good Constitution. He’s also the author of Accelerating Democracy, that was published by Princeton University Press. He is one of our most significant legal thinkers in America, and one of our leading constitutional originalists, John McGinnis, we’re glad to have you on the program today.

John McGinnis (01:19):

I’m delighted to be here at an interesting time for the court.

Richard Reinsch (01:22):

Interesting time, so last night October 26, Amy Coney Barrett, nomination received 52 votes. She was sworn in by Justice Clarence Thomas, which I thought was just a wonderful sight. Amy Coney Barrett, talk about her constitutional philosophy much has been said by her and by others that she is an originalist. What kind of an originalist is she, John?

John McGinnis (01:48):

First of all, I think it’s quite clear. She says her philosophy is the philosophy of Justice Scalia. So I think that she’s going to be an original public meaning originalist rather than original intent originalist. Beyond that I think it’s a little hard to say because while she’s been a prolific scholar, she’s not been a constitutional theorist. And the one thing we do know about her is I think she is unlikely to be a strong, what I would call libertarian originalist. Someone who sees that there is a presumption of liberty like Randy Barnett in the constitution, and that should inform her take on perhaps the original meaning. And what’s called the construction zone would be claimed by some originalists, that some parts of the constitution are determined and for people like Randy Barnett, that’s filled in to some extent with respect to a presumption of liberty. And there I think we do know she gave a somewhat unfavorable review to Randy Barnett’s book, on trashing what I’ll call libertarian take on originalism. So I think that’s pretty clear that she’s not of that kind.

I wouldn’t necessarily think she’s way on the other side, someone who thinks like early originalists, that democracy is the key aspect of the constitution. And therefore we should engage in a lot of deference to the legislative branches, even when there are rights set out in the constitution. I don’t think she’s ever suggested quite that. And so I tend to think she’s going to read the constitution without a presumption and favor of liberty or without a presumption and favor of legislative actions. Somewhere like straight down the middle originalist in that respect. But there are many questions I don’t think are entirely clear. And it’s not suprising that they’re not entirely clear, when she is not an originalist theorist and she’s going to get on the bench, and have to grapple with cases and their intersection with theory.

So one area, I think we’re going to see a lot of discussion of her and others on the court, it’s already begun is in relation to originalism and stare decisis and where she’s going to come out exactly there, I’m not sure. She has written an article about originalism and stare decisis, in which she sort of has endorsed the Scalia as opposed to the Thomas approach. But while endorsing it in sort of broad terms, she suggested the kind of tightening of it. And so I tend to think it will be somewhere between Scalia and Thomas. Thomas is recalled as someone who really largely rejects stare decisis in Constitutional Law, except when he can’t say the decision is wrong. Scalia, seems to accept a lot of decisions that he thought were wrong because there was just too much water under the bridge to overrule them. Where she’s going to come down between those two polarities as it were within the originalist camp, I’m just not entirely sure. I don’t think I’m quite sure she’s not entirely sure it’s going to be forged in discussions with her colleagues, that she correctly stated being a judge is different from being a professor, more to be informed by academic theories. She’s obviously going to take account of what her colleagues say and with the context of the cases that come before her.

Richard Reinsch (05:22):

That law review article, if I recall she listed Brown v. Board of Education as a super precedent, not an earth shattering move there. A lot of people would say that, I think everyone would say that. She did not include Roe v. Wade or Planned Parenthood v. Casey in that piece as a super precedent itself.

John McGinnis (05:39):

Super precedent as she was at pain to explain in the hearing, she was really using as a kind of academic term of art, but one of the best actually parts of the hearing is where Amy Klobuchar, quizzed her why isn’t Roe a super precedent, but she said, well, of course you have to really ask whether it’s a super precedent or not, really isn’t. And that’s sort of the definition, that one thing that really no one wants to overturn. And of course that’s not true of Roe that’s not true of Citizens United, it’s not true of a whole range of cases that are important precedents of the court, but that serious scholars and serious legislators thinks should be overturned.

Richard Reinsch (06:27):

Now, you mentioned she’s not and she’s indicated this in her writings she’s not inclined towards the judicial engagement camp of originalism. So with that being noted, do we have clues in her writings of how she will engage the questions of the administrative state that have really come to the fore?

John McGinnis (06:47):

I don’t think we have many clues in the writing. First of all, unlike some academics she’s really not an administrative law academic. I do think the best clue that we have that she’s not going to be a judicial deference is from her action on the Seventh Circuit, where in a Second Amendment case, she says that, even the non-violent felons should be able to have access to guns where she could have deferred to the legislature. And there’s some nuanced language in Heller itself that sort of gives the blanket categorical blessing to permitting States, to exclude felons from the right to have guns. Where she pointed out that didn’t make a lot of sense when a narrow kind of compelling interest path, or even intermediate path when the felon went violent, because of someone committed some sort of felony under the securities law that gives no reason really to believe that they’re likely to be violent with or misuse a gun. So I think that’s some indication that she’s not of the judicial deference school. I think with respect to the administrative state, we have very little to go on, except the general idea, which is that most originalists think that at least at its outer bounds, the administrative state seems to bump up against the core idea of the separation of power. It’s the legislature who should be making the rules, not the executive. So I’d be surprised if she were to not take that view. And that’s important because as you may know, there are even five votes, including Chief Justice Roberts on the court, express concern about the breadth of the court’s previous permissions for Congress to delegate authority to the administrative state. And therefore in some sense, aggregate their own responsibility to make clear, at least the broad outlines of the laws.

Richard Reinsch (08:55):

There was a case she wrote on recently in the Seventh Circuit, that involved a police officer and qualified immunity, where a police officer, I think had falsified something about the defendant, some official document. Maybe it had been the warrant itself, and she did not give this police officer qualified immunity, she ruled against it. So no deference there. Now, the facts there, which I can’t exactly recall were quite shocking. So there’s that, also it seems though one question comes to mind. If she said Scalia is sort of her mentor, she clerked for Scalia, and this is just one way of thinking. Did he shape her thinking about the administrative state? He was notably open to its powers until later in his career, towards the end of his career, where he seemed to have realized maybe this had gone too far.

John McGinnis (09:49):

Yes, that’s interesting because let’s understand that Scalia, came up I think when there was still a lot of sense among conservative legal scholars, that originalism really was a kind of way of reigning in the excesses of the Warren Court. Which seemed to even in administrative law seem to reach out, to restrict the political branches. And so I think that’s the view from which Scalia comes. That’s really not the thinking now. And so Scalia, I think as you correctly point out with himself changing. So I would not think that Amy Coney Barrett is likely to be the early Scalia in this respect, more likely to be the later Scalia moreover. That’s one area where I think there’s some substantial unity, I would say, including with between Chief Justice Roberts, who in some cases was if one talks about being more skeptical of the administrative state as the right to being ideologically on the right, he was ideologically right of Scalia. For instance, there’s a case in which Scalia upholds under Chevron deference, the ability of a agency to interpret ambiguities in their own jurisdiction in their own favor. And Roberts says, well, that actually putting the fox in charge of the hen house. That’s too far for Chevron deference. So this is an area I think of substantial unity. I would be very surprised if Amy Coney Barrett were not to fall in with the rest, this is not an area I think she’s likely to be a leader on. She’s not someone who is an administrative law scholar, she’s not unlike many of the other justices, like three of the other justices on the conservative side, a DC Circuit alumnus, where of course their largest diet is administrative law. But I would think she’ll at least go along with where I see the center of gravity is now on the court.

Richard Reinsch (11:52):

You’ve mention his name several times, what does this appointment mean for Chief Justice John Roberts, and in particular, the strategy he seems to have been employing recently he doesn’t want the court to be seen as totally aligned with the Trump administration or with conservatism. He’s made some interesting moves. What does she pose to that strategy?

John McGinnis (12:15):

Yes. Well, it’s always hard to understand the motivations of justices, but one plausible take is that Roberts is a Chief Justice and the Chief Justices have argued before, really I think has different motivations from other justices. It’s his court, everyone calls it the Roberts Court. And so he’s very concerned about… Chief Justices I think are always concerned about the standing of the court. One actual natural experiment we have in that respect is Rehnquist was much more conservative before he became Chief Justice. So and obviously I don’t think his views changed. It was the seat that changed. And so I think one way of understanding Chief Justice Roberts, is he’s very concerned with what political scientists call the diffuse support for the court. And that may in close cases at least make him interested in distributing victories, particularly in a court that now is partisanly aligned and with all the liberals are Democrats and all the conservatives are Republicans. And so I think that has been an element of his strategy as it were a kind of distribution of victories. Moreover, he is an incrementalist, and so some of his decisions while giving victories to the liberal side, I think the example of the abortion case last term, might not in the long run do that. So he gives a sort of little Easter eggs and even in his opinions as it were for the liberal side. And so that’s just kind of incrementalist approach to the law. So how will it change? Well, I think he an issue that he’s, I think he’s been the most powerful Chief Justice for decades. Because not only was he, the chief after Kavanaugh was confirmed, he was the median justice. That meant that he genuinely, I think, was in most cases in the middle and therefore the way he swung he could swing the court, and that gave him enormous power. And in addition, he has the power when he is in the majority of assigning the opinions. And so that allows him to choose the writer, including himself, which he took in many of the important cases, to write the opinion which sets the trajectory for the law. So suddenly he’s in a different position. He’s no longer the median justice. When you talk about who exactly the median is, I don’t think it’s entirely clear, but it’s certainly not him anymore. And that puts him in a dilemma, because he could still vote with the liberals, but that doesn’t give a victory, we still have a conservative victory. Worse still when he’s not in the majority, Thomas who’s the senior associate justice assigned the opinion including to himself. And that means we might get, since I think opinion writers have some political scientists say, some ability to write the opinion. If some discretion as it were, can move the trajectory of the law in a rightward direction. So he may oddly enough move to the right, would be my prediction because, by moving to the right, he at least retains the opinion and assignment function, and can assign the opinion to himself or to the least conservative member of the majority. So oddly enough, Barrett’s confirmation, I think is going to make Robert’s vote more to the right. And when he doesn’t vote to the right, it will make the opinions more to the right because Thomas will assign them. So that’s a hidden benefit for conservatives and for originalists. Because Thomas, of course is out of a subset, I’m always fighting against calling a justice as liberal or conservative. There are methodological differences and Justice Thomas is the most consistent originalists on the court. So that’s going to create a more originalist court because of Justice Thomas, his greater power to assign opinions.

Richard Reinsch (16:16):

So, Amy Coney Barrett’s position on the court will act in many ways to constrain Justice Robert’s past behavior as he navigates the terrain in the future.

John McGinnis (16:28):

Yes. It will constrain him, but I mean, as a rational actor, he’ll act in different ways, the constraints will be different. He’s differently constrained in the sense that he felt more constrained by the politics of the country, now he’s constrained as it were sort of by the jurisprudential positions of his colleagues. And so we have to take that into account.

Richard Reinsch (16:51):

You’ve written pieces on Law & Liberty, and you’ve just mentioned the idea of the median justice on the court, with Barrett’s addition, who do you think is the median justice?

John McGinnis (17:01):

I don’t think it’s clear yet. I think there are three candidates, I think the most and I’ll talk about them in the descending order of likelihood. I know the most likely is Kavanaugh, because I think he’s less committed as an originalist than Gorsuch. Now, of course, that doesn’t mean that even if that’s the case, that in every case there’ll be the median justice, we saw of course, Gorsuch in the Title VII Case, write the opinion for and regard as the liberal side of the court and Kavanaugh, was in dissent. I think we’re likely to see a situation more like the world where we saw when Kennedy and O’Connor were on the court. Where Kennedy tended to be the median justice, while on some issues it was O’Connor. For instance, on First Amendment issues Kennedy was much more strongly First Amendment oriented. And I think O’Connor was the center of the court. So I think that on some kinds of issues, Gorsuch may be the center of the court, more kind of libertarian criminal justice type issues. He could be the median, we’ll have a kind of a twin star as it were as opposed to a single star. And I don’t want to rule out the possibility that Barrett could become a median justice. I think people are too quick to suggest that Barrett, is going to be somewhere close to Thomas. I mean, I think that’s what you would probably predict somewhere where between Thomas and Alito, based on our votes on the Circuit Court. But there’s a lot of learning and I think it’s absolutely right that as hard justices change, even if they don’t change dramatically. After around five years on the court, they really don’t understand exactly the Supreme Court and how it’s working until five years. They don’t come comfortable with exactly their positions. Now, I don’t think we’re going to see Justice Barrett grow on the court, as it were like Justice Black when they moved to the ideological left of the court. But I think it’s hard to rule her out, becoming the median and that’s least likely of these possibilities, but I want to at least put it on the table.

Richard Reinsch (19:21):

I thought it was instructive last night, the content of her acceptance speech or her post confirmation speech, where she clearly contrasted the role of the legislator and the role of the judge. And she was very clear, she is not coming to be a legislator, and to enact any of her policy preferences. When you put that together and obviously her scholarship is significant here. And also the talk she gave in the now famous Rose Garden event, infamous Rose Garden event because of the spread of the coronavirus. She also was very clear there about the role of the judge and where she takes her bearings. It seems to me, this is just someone who very much takes seriously the judicial branch in our separation of powers, and the duties that a judge holds.

John McGinnis (20:08):

I think that’s right. Well, I think she has served the originalist views, I think she may have a more moderate temperament, than someone like Justice Thomas. Really, of course, his temperament is forged in all sorts of personal struggle with racism early on in his life, With the confirmation hearing, he faced the vicious personal attacks. That I think were you in a somewhat very hard edged character, I don’t really see that in Amy Coney Barrett. So I think he has a temperament that is likely to lead to more for want of a better word moderation, even while I don’t think we’re going to see some great balancing conversion to becoming a living constitutionalist or anything of that sort. But, so I do think those comments, both at the White House are indicative of that kind of temperament.

Richard Reinsch (21:07):

Yeah. Now, that Barrett is on the court and this has been in the air as you know, this idea of court packing, Biden seems to have reluctantly backed away from it. But I think it’s in the air. How do you see that working out? And what do you make of that as an originalist, the idea of adding four or five more justices?

John McGinnis (21:30):

I think as originalists, I think it’s legal. I mean, the only argument possibly against it, is the kind of necessary and proper argument while this is improper when Congress is trying to change the makeup of the court to change the decision. I think the difficulty with that argument is that it has been changed in the past. Although historians say it’s never really been successfully changed with the overt intention of changing the makeup of the decisions of the court was really mostly changed because of need for circuit riding, which of course we no longer have. Judges actually had to ride and go and decide cases way out in the Hinterlands if they needed more justices at times. But I think in general, I think an originalists has to accept that, that’s one of the safety valves as it were, or that the legislature has on the judiciary. Nevertheless, I don’t think court packing is very likely for a few reasons. I mean, you would think it was very likely to just listen to law professors, but of course law professors are not a real good indication even of Democratic politicians. I think there are three reasons that suggest that it’s unlikely. One it’s just very unpopular. The polling on it is extremely unpopular. I think it’s not likely to become more popular as people talk about it. So no happy face associated with it, there’s just a kind of risk. So that’s the first reason it’s unpopular. The second reason I think is Biden, whatever else, one thing, he’s been around a long time and he understands that you got to make priorities for your agenda. And for most Americans, even those who isn’t miserably unpopular, it’s sort of remote. I mean, not the law professors of course, but it’s not really delivering any benefits and could hijack his agenda that some huge fight about this. And the final reason I think is oddly enough, the Democratic strategy in the confirmation hearings. So you will recall that strategy, which I think was much more sensible than their strategy with respect to Amy Coney Barrett at the Appellate Court level, was not to attack her, or just talk about the dogma that speaks proudly within her. But to say, well, she’s a danger, and the court is a danger to the Affordable Care Act. Which is delivering all these benefits so much that I don’t really recall that at the vote on the Judiciary Committee, which they boycotted, they put up all these pictures of people, I guess they claimed the children who, but for the Affordable Care Act, whether to be dead or a terrible disease. So they put all their chips, and that maybe be a sensible electoral strategy because people with that at least is something people may care about, in a way that the abstractions on judicial philosophy for most people may leave them cold or uninterested.

But the difficulty is that I think most liberals and most conservatives think that there’s no chance that the Roberts Court is going to invalidate the Affordable Care Act, in the Texas versus California and California versus Texas cases. Having put all their chips there, once the case comes down, as I predict it comes down eight-one or seven to two, not to disturb the Affordable Care Act. Well, this is what they say is going to happen. And the worst thing that’s going to happen people are going to uphold the Affordable Care Act eight to one, seven to two. This court really, I think, takes the wind out of the sail of court packing, which after all, even with respect to FDR, came after a series of decisions that struck down key programs of the New Deal. So that’s another problem I think for court packing.

Richard Reinsch (25:25):

It seems to me with Barrett’s nomination, which went much better. I mean, I remember the day it was announced that Justice Ginsburg had died and I thought, wow, here we go. This is not what we need. And her confirmation went through, I think reasonably well. I think that’s obvious, but my sense there is we got the first instance sort of, of this wokeism actually in retrospect. Well, what happened to Justice Kavanaugh, was sort of applied wokeism, to leave any woman who makes a claim without evidence destroy someone’s life over it, destroy someone’s career over it, ostensibly. And it was ugly and vicious and we came away from that. I think most people came away from that thinking let’s not do that again. So I think in many ways, Kavanaugh paved the way for this rather smooth confirmation and also Senator Feinstein and Senator Durbin openly questioning Barrett during her Seventh Circuit nomination, bringing up her religious faith. And it was rather shocking, but it also had the effect of boosting Barrett to the top of the pile. I think in the White House for the next Supreme Court justice position, I’ve heard that there were coffee mugs given out “the dogma lives loudly within me,” things like that, kind of as a joke. So that all seemed to work in her favor. And I think the last thing that those opposing her really wanted to do was go after her in any sort of intense, vicious ways that they’ve done in the past to Republican nominees. So I take that as maybe a good indication of maybe these fights won’t be as vicious in the future or probably barely, just special in that regard.

John McGinnis (27:01):

Yeah. So one thing I think that made it less vicious was that it was right before an election, and the polling suggests that what the Democrats did with respect to Kavanaugh really hurt them at least with some Senate seats. And then really think about swing Senate seats. I think one has to understand it very much as in the connection of this selection, I’m less confident perhaps that we won’t see continual some other vicious confirmation hearing in the past. I think this was very situational as it were.

Richard Reinsch (27:31):

Thinking as an originalist, what is the Senate’s role regarding a nominee from the president? And in that regard too, was there something unseemly not just unseemly, but unconstitutional about what Senator McConnell and Republicans did to Obama’s nominee Merrick Garland? Many claim that taints all of the Trump nominees because of what happened to Garland. What do you say?

John McGinnis (27:58):

I don’t think there’s anything unconstitutional about it. The Senate’s advice and consent role, I think is quite clear that they got a majority vote and there’s no sense that there’s an obligation to give a vote anymore than there’s an obligation to vote on the president’s legislation. And that I think is clear as well, from the practice there are many nominees not to the court, although some to the court that haven’t gotten votes, but there are many, many nominees that never get votes or indeed get hearings. So that really isn’t a surprise and there’s nothing I think about the advice and consent clause that suggests there is some requirement to vote. The advice and consent clause, is what it suggests, which is a term of art actually, I once wrote about this, it’s not separate advice and consent. It’s really acting like a Privy Council to give us consent. And I see no indication there was anything unconstitutional about it. Now, is there some violation of Senate norms by not giving a Supreme Court nominee a vote? That’s I think a more complicated question. I think there’s certainly a good argument that McConnell has that the real issue here is just the question of majority. When majority party is of the same party as the president, nominees go through easily, when it’s not, they don’t. And that strikes me as really in some sense, the only enforceable rule, no other rule is going to be enforceable. My impression, I don’t have the numbers quite here is that in general, in the last president term, when the Senate and the president agree, there’ve been a lot of confirmations. There’s always a nomination and pretty much they’re confirmed. When the Senate and the president are of different parties. It’s rarely confirmed and that’s just what you would expect with politics. It’s necessarily a political element, and the framers contemplated of course, politics being part of government in the advice and consent practice. So I don’t see anything untoward. You might have a criticism, some criticism of the framers design, is that they didn’t understand how important the Supreme Court would become or maybe they did, but didn’t take account of the fact that the composition may become then therefore, so dependent on the accidents and deaths and retirement. And that I think is a serious criticism of the design and why I think there are plausible arguments that we should go to a 18 year term through constitutional amendment, in the future to make sure that we don’t have a structure in which by accident Trump gets three appointees, even if he’s a one term president and Jimmy Carter got zero.

Richard Reinsch (30:59):

On the new term or the term that we’re in, what cases come to mind, has significance potentially, and do you see Justice Barrett playing a pivotal role in any of those cases?

John McGinnis (31:13):

Well, I think the most important case is the one that Justice Barrett may play the most little role at. And I think that in my view, the most important case although it’s not the most important programmatic case for the Trump administration is the case I think called Fulton v. Philadelphia, a case at which a Catholic Service Agency is being excluded from placing foster children, because it doesn’t want to place foster children with same sex couples. And here it’s making some very large argument that, that’s a problem. And it wants to overrule a case called Employment Division v. Smith, which says that in general at least for religious based conduct so long as the law is neutral, you can’t get a religious exemption from it even if it does intrude deeply into your religious beliefs. As of course, Catholic Service Agency really could not have good conscience think of same sex couples in exactly the same way as it does married heterosexual couples. So you might say, well, that’s quite an important case. And the important case was it really goes, I think, on the front lines of our society. There’s a real question I think, given some of the other decisions. The same sex marriage decision and other social facts in our society, of whether religions with traditional views of sexuality will continue to play a role in charities that are connected as many charities are to the government. So I think it’s a hugely important case on the front lines of our society, as well as this case about overruling of Justice Scalia. So how do I think Barrett, may play into this?

Well, Barrett in a very interesting article on stare decisis, that I’ve already mentioned suggest that what I would call their passive virtues, let’s not overrule cases unless we really have to, I think is one of her sub-tasks of this idea. Can we find other way of addressing this matter? And I think in the Fulton case, there may be a solution for the court, which is the focus on well, what does it mean for a law to be neutral? Because it turns out that in Philadelphia has a lot of ability to give exemptions on all sorts of bases, to agencies that don’t comply with various rules. And it hasn’t given an exemption here to Fulton, it’s given exemptions to others on another basis not about same sex couples. And one might think that’s a bit of a problem that because of the danger.

Richard Reinsch (34:04):

What are those exemptions there? What do they allow other agencies to do?

John McGinnis (34:09):

Well, as I understand it and I’m not an expert on the exact statute here, is they allowed the sort of general waiver for agencies because of course it’s not a surprise because the agencies may want to waive things because they may think, well, this charity isn’t quite on our rules. But still it would be useful for us to make use of them because foster children and many other social problems really can’t be addressed without the full weight of civil society. And to be too persnickety about rules may undermine that, that’s not a surprise. I think that they have this broad authority, but you might worry that well, that allows them to pick and choose and really not be a neutral arbiter. And therefore this really doesn’t apply in those circumstances. So that will be a way of not overruling Smith.

Richard Reinsch (35:12):

I read that the city of Philadelphia contracts with adoption agencies that only place children at the same race and same race home, isn’t that itself a form of discrimination that they permit? And why would that be any different from say, a Catholic Social Services, we are only going to place children in heterosexual homes?

John McGinnis (35:33):

If I were arguing for the Philadelphia, I would say, well, that’s just not this case. You know, maybe that’s illegal and someone could bring a suit against us on that basis. But that doesn’t mean we can’t also-

Richard Reinsch (35:46):

I’ve read that, that’s like a general policy that they allow because within the world of adoption, this is actually a thing, particularly minority race children should go only-

John McGinnis (35:55):

I’m not aware of that, I mean-

Richard Reinsch (35:57):

That’s what I’ve read about this case. So that sort of opens up the door I think for your analysis is why I’m suggesting it.

John McGinnis (36:03):

I think, yes. I mean, I guess maybe that, another stronger argument to me is that they give discretion rather than they have other bad policies. Policy does seem to be very doubtful, but we heard oddly enough of course we heard about that in some contacts with respect to the adoption contact back there, Amy Coney Barrett, we’re one of the leading anti-racism professors tweeted-

Richard Reinsch (36:28):

Yeah, Ibram Kendi.

John McGinnis (36:30):

That her adopting black children was sort of a white savior colonialist mentality. So I agree that’s itself a very problematic, and we may actually see some litigation about that coming soon to the court.

Richard Reinsch (36:45):

So Fulton v. the City of Philadelphia and one could see her playing a role there. The two other cases which may go away if Trump loses, I assume Trump v. New York and Trump v. Sierra Club, but what’s happening there?

John McGinnis (36:58):

Well, in Trump v. Sierra Club is the wall case, right? So the wall case is a case about delegation of authority. There are statutes, and this is not that unusual kind of statute, which allows essentially the executive branch to reprogram funds for higher priorities. And these are military funds and Trump has reprogrammed them to build the wall. The argument is that he’s acting ultra vires, he doesn’t have authority under this statute. Now, in some sense, of course it’s an interesting case because it pits maybe some policy objectives, at least some conservatives against the view of the conservatives that there’s too excessive delegation. Then in other words, that we should tighten up on delegation. So this is an interesting case in that sense that it pits one sort of juris prudential or ideas about government versus at least some people’s views about policy wisdom. So I think that’s sort of interesting in that respect and I think may somewhat scramble and make Trump less likely to win.

My own sense is that there is a way of, even if Trump were to win for the court to get rid of the suit without even reaching the delegation question, because it’s not clear, the Sierra Club has standing to bring the suit. There’s a technical doctrine saying that, you only have a cause of action if you’re within the zone of interest of the statute. In other words, if a statute is focused on protecting your concern, of course, the Sierra Club’s concerns are aesthetic or environmental, and these reprogramming stats really are trying to protect Congress’s power of the purse. I think that may be a way of avoiding the larger questions, this case the lower court Trump appointed judge named Dan Collins went off very strongly on that. Because there really was no cause of action for the Sierra Club, because they were outside of the zone of interest. But I think you’re also correct that if Trump loses this case is likely just to go away.

Richard Reinsch (39:12):

Another case, big for administrative law, potentially a Mnuchin v. Collins. And in particular the Federal Housing Finance Agency, its director is immune from removal except on for cause basis. What do you make of this case?

John McGinnis (39:29):

I did the case, I think it’s easy to predict the outcome of the case. Maybe easier than any of the others we’ve discussed, because the previous in last term, there was a case of the Consumer Financial Protection Bureau or the CFPB. In which there was similarly a director who was insulated from removal and a court in a five, four decision held that, that violated the separation of powers. Because there was at least a strong presumption that the president got to fire people at will within the executive branch, at least in these high positions, in the executive branch, this is similarly a director. And so it’s distinguished from the cases where the court is upheld insulation of removal, which are boards, bipartisan boards like the FTC, the FCC, this seems to give up more concentrated power to someone who’s insulated from presidential control. So it’s very similar, the only difference actually is that the CFPB gets its funds from the Fed and the Housing Finance administration gets its funds from assessment on banks. I don’t see that as making much difference ultimately, what I think is interesting about this case is it will be yet another precedent for the presidential power over the executive. And it may start to isolate getting a lot more precedent, isolate these old precedents like Humphrey’s Executor, which allow the installation for removal. So I would not be amazed to see in the next five years arguments that those cases should be overruled as now being sort of outside the warp and woof of the law as being sort of left as isolated cases that really don’t match with the rest of the law. So I think that’s its big significance going forward.

Richard Reinsch (41:22):

Although and it occurs to me, that there is now I think a plurality of justices on the court that would call themselves originalists you’re a student, you’re a scholar of originalism. Do you see originalism continuing to grow and really begin to direct constitutional interpretive discourse in this country?

John McGinnis (41:48):

Well, assuming there’s no court packing, I do see it as having now huge influence and where it’s going to go is a little unclear. But I think one interesting aspect mostly it’s been driven now by scholars thinking about originalism, but now we’re going to see a lot more being driven by the court. And of course, as I’ve suggested, one of the big issues for the court is how to combine originalism and stare decisis. How to understand it in that respect and as well as looking at the original meaning of various clauses of the constitution. Now, scholars are going to also play a role because their brief and the briefs of people were informed by scholarship are going to make a bigger difference than they ever have before. So we’re going to get a kind of originalist culture surrounding the court. I think we have three strong originalists, maybe Kavanaugh is also an originalist I don’t think that’s yet clear. And we have people like Alito and Roberts who’re at least sympathetic to originalism if not full-fledged originalist. So should get an originalist culture on the court. There are two caveats. So one, is that for the first time it is very clear the Democratic Party has come out against originalism. I know we saw on the Senate floor, Senator Markey, he said, originalism is about racism, homophobia.

This is quite a striking development after all Elena Kagan, who is the last Democratic nominee said, “We’re all originalists,” at a hearing. I don’t think we’re going to hear many Democratic nominees saying that. And so unfortunately, a kind of a political polarization is coming even to constitutional theory. So that’s one caveat. And so we’re going to see a lot of pushback on originalism. The other caveat is the autonomy. I wish I could say that now with more originalist on the court that the legal academy would take originalism more seriously. I think the opposite is likely to happen because of developments in the university world. The legal academy is moving very far to the left and I think very much harder to get an originalist hired at a school. I would say for instance, 10 years ago, it will be plausible to have an originalist hired at my school. I do not think it is plausible at my school now. And my school is somewhat more conservative than most national law school. So that’s a caveat, we might not see the same kind of development by academics of originalist theory. There are of course now very vigorous originalists, but I think the pipeline for younger scholars is going to be cut off for some period of time.

Richard Reinsch (44:43):

It’s certainly interesting now, to think about and ways of working around that will have to be done. John McGinnis, thank you so much for joining us to discuss Justice Coney Barrett’s philosophy and the impact she might have on the court. We appreciate it greatly.

John McGinnis (44:58):

Well, I very much enjoyed it. Thanks so much, Richard.

Richard Reinsch (45:02):

This is Richard Reinsch. You’ve been listening to another episode of Liberty Law Talk available at lawliberty.org.