Supreme Court Roundup 2020-21

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

Richard Reinsch (00:19):

Hello, and welcome to Liberty Law Talk I’m Richard Reinsch. Today we’re talking with John McGinnis about the recently concluded Supreme Court term of 2020 and 2021. John McGinnis, many of you will know is a contributing editor at Law & Liberty. He’s also the George C. Dix Professor in Constitutional Law at Northwestern University. He’s the author of a number of books, including Accelerating Democracy, Princeton University Press. He’s co-author with Mike Rappaport of Originalism and The Good Constitution published by Harvard Press. He has published in leading law reviews, Harvard, Chicago, Stanford, Yale, and in many journals of public opinion, National Affairs, National Review, Wall Street Journal, among many others. So John, we’re glad to have you to talk about the Supreme Court term.

John McGinnis (01:05):

Glad to be here.

Richard Reinsch (01:07):

So overall, what we should note about this term, all of the cases were heard by teleconference because of the pandemic. We welcomed a new member of the Court Amy Coney Barrett, confirmed before the presidential election, and so in that sense something new. But how would you characterize this term? Any startling developments that you’ve read, John?

One way of thinking about Justice Kavanaugh and Justice Roberts is I think they are, people who’re more attuned, more concerned about the political reputational capital of the Court there.

John McGinnis (01:28):

Well, I do think it is important to understand that this is a new Court. I think it is well said that when always as a new Court, whenever a new justice joins and so the dynamics change. And I think this is the case more so than with other changes, because of course Amy Coney Barrett replaced Ruth Bader Ginsburg, and that is a dramatic change in jurisprudence, ideology. The only a comparable change in modern time, I think is that between Thurgood Marshall and Clarence Thomas. And you might say that this is even greater because this really solidifies, as many have said, a majority of some people would call conservative, other people might call it a more formalist, in jurisprudential terms, majority on the Court. And the reason that’s important, I think going forward in the longterm is I think, the justices particularly someone like John Roberts is very concerned about 5-4 decisions. And I think 6-3 decisions may give them a sense that there’s a little more leeway to rule even the way he would like. And so those are important changes of the Court.

With Justice Barrett, I think we saw in the first term, a fairly cautious judge, this is not a surprise. Again, Court watchers think that to get their sea legs justices have to be on the Court for around four, five years, and that’s when one really takes their measure. On the other hand, Justice Barrett, I think has been quite clear in some of her cases that she’s an originalist, at least when there’s no clear precedent online, I think that’s… On the other hand, she’s cautious about changing the Court’s precedent. She’s not going to be someone like, for instance, Justice Thomas, who’s willing to simply throw out precedent when it conflicts with the original meaning, if there has been some precedent. Good example of that is the Fulton case in which he wrote a concurrence suggesting she doesn’t think the famous case of Smith is correctly decided. If you recall that case was one in which Justice Scalia said that, so long as the law was neutral, you really could not have protection under the free exercise clause. She doesn’t think that’s right, but she’s very cautious about throwing it out, which is not to know exactly what’s going to come afterwards. And that’s very much in contrast with not only Justice Thomas, Justice Gorsuch and in that case, Justice Alito were more willing to overrule precedent. So I do think we see both an originalist and a cautious judge in the newest addition to the Court.

Richard Reinsch (04:20):

And Barrett’s appointment to the Court also makes you suggest on Law & Liberty, not suggest, but argued, Justice Kavanaugh to be the new median justice on the Court.

John McGinnis (04:32):

I think that’s right, and that is born out by the statistics. I think I suggested that was likely going in and then at least this is one prediction I think that was right. He was in the majority, I think something on the order of 98% of the time. And that’s a pretty good indication, you’re the median of the Court when you’re at that height of joining the majority. And that’s not a surprise in some sense, I think. One way of thinking about Justice Kavanaugh and Justice Roberts is I think they are, people who’re more attuned, more concerned about the political reputational capital of the Court there. Of course, Washington insiders in a way that the other judges and the conservative majority are not, who spent a good deal of their time outside Washington. And I think people who are in Washington just are necessarily going to be looking out on things, reflect off that small beltway community.

Richard Reinsch (05:38):

Yeah. Not a problem for Clarence Thomas, even though he did spend a good portion of his career in Washington prior to the Court.

John McGinnis (05:44):

That’s right, that’s a good distinction. But of course, Clarence Thomas is I think someone who’s very consciously established himself in complete contrast to the establishment, particularly in the area he worked in, civil rights. So I think that makes him a little different showing a kind of willingness to buck the establishment, even at the cost of public perceptions. So I think he’s a little different and I think you’re right about that. But the other judges are sort of quintessential Washington insiders, talking about Roberts and Kavanaugh.

Richard Reinsch (06:18):

Let me ask you a question from a different angle. Just something that occurred to me thinking about this interview. This is an incredibly contentious period in our nation’s politics, do we find this tumultuous politics in any way finding reflection in the Court’s opinions for this term?

John McGinnis (06:34):

I think we do. I think we find it most in the voting rights opinion, the case I’d never know quite how-

Richard Reinsch (06:41):

Brnovich vs. DNC perhaps?

John McGinnis (06:44):


Richard Reinsch (06:44):


John McGinnis (06:44):

There, I think we see, and voting rights of course has been a fault line between the parties. And that was a very bitter dissent by Kagan, somewhat uncharacteristically. So in my view, so what, I’m happy to go into the facts of that case, if that’s some interest. So this is a voting rights case about a question about a federal statute, whether the federal voting rights statute makes certain laws in Arizona illegal. And Arizona had two kinds of laws. One was a requirement that, if you did in-person voting and Arizona allows quite a bit of in-mail voting, it’s allows early voting. But if you did an in-person voting on election day, you have to vote in the right precinct or your vote won’t be counted. And also it has what is called anti-harvesting provision, suggesting that while you can mail in your own ballot and maybe a family member can, people who are unrelated to you can’t collect a lot of ballots and mail them in. The concern there is not only fraud, but that there can be undue influence exercise too. For people to say, “Well, here’s a ballot, please mark it in the way I’d like.” And that’s a problem.

So the question was, the provision of the statute that requires an equal opportunity for all groups to vote. And there was some very small disparate impact on African-Americans, but we’re talking, I think in some cases 10ths of a percentage point, very small disparate impact. And the question was, was that enough to invalidate these laws? Even the Biden administration said, no. The Trump administration had said no, the Biden administration did not change the position. And the question is, how do you interpret what is an equal opportunity? The Senate said, “Well, it’s an effects test.” So essentially you have to have an incredibly strong reason, even if there’s any disparate impact. The majority said, “No, that’s not the right way to read the statute.” And I think the very powerful argument here is, in the House, there was a provision that was like that, an effects test. But when it got to the Senate, the Senate added a lot of language saying, “We’ve got to look at the total circumstances and you just have to make sure everyone has an equal opportunity to vote.” And I think the majority correctly said that was not an attempt to change all of the voting laws to make sure that there were no disparate effects, because that would have made that language rather superfluous given the change from the House. So I think the majority is right there, but not surprisingly given the fault lines we see about Voting Rights Act, I think that was the most divisive issue in the entire Court term.

Richard Reinsch (09:37):

So that opinion will have consequences rippling out in our politics and future elections. As we see, say Republican state legislatures trying to, I don’t say reduce the number of people that can vote, but putting up just more strictures on voting. Making sure it seems to me, they want to have more in-person voting, but they seem to be, the view is those provisions will be more insulated from legal challenge after this opinion.

John McGinnis (10:03):

Yes, I think that’s right. And note, a lot of these provisions actually are just going back to what the rules were, not all of them, but a lot of them were going back to what the rules were pre-pandemic. And so if the dissent had been correct, I think even those kind of rules would have been really opened the challenge. But the majority said, “Well, the laws have been around a long time.” The laws for instance were around at the time that this federal statute passed. And there was only a relatively small disparate impact, and there seem to be some reason for them, this does not intend to wipe away those laws. So I think it is an important decision that allows for more state authority to change their election laws. But it’s not a carte blanche by any means, if there’s a substantial disparate impact, if there really don’t are no good reasons, and this is a new kind of law, these laws are still open to challenge other than the majority’s opinion.

Richard Reinsch (11:01):

So I want to get to ad law and any implications for ad law in this term. But let’s talk Fulton vs. Philadelphia. Another contentious case with connections to our politics, which the Supreme Court ruled that the City of Philadelphia could not prevent Catholic charities from being involved in its adoption programs because even though that agency did not refer adoptions to same-sex couples.

I disagree with those who said, that really the majority opinion does not improve the situation for religious believers. In the sense it does, if there’s any kind of administrative exception, you got to make a free exercise challenge. And even if it’s not an exercised administrative exception.

John McGinnis (11:29):

That’s right. And what distinguishes this case from the Brnovich case is that it’s a… well, not a unanimous opinion, it’s a unanimous result. All of the justices said that what Philadelphia did was illegal, but there were two very different approaches. And they’re kind of characteristic like the approach that came in the majority from the Chief Justice was I think, a really a characteristic kind of a decision. Working within the law to make it more friendly to free exercise. Doctrinally, the concurrence by Judge Alito wanted really to overturn Smith. So beginning with a majority opinion, the majority opinion plays on one aspect of Smith. Smith says that, “The laws to be insulated from challenge under free exercise have to be laws of general applicability.” And the argument was, well, this law that’s saying they could not participate because they wouldn’t refer about same-sex couples was not a law of general applicability, because the law itself permitted administrative exceptions, and that made it not generally applicable. The interesting thing about that was that there hadn’t been any administrative exceptions.

So this shows quite a weakening in some sense of general applicability. Even if you have the possibility of administrative exceptions, that means the law is not generally applicable and you can make a free exercise challenges to it. And that’s quite important. Indeed, it suggests that in some ways, state laws are more vulnerable if they have administrative exception which they haven’t used. Because if they do use administrative exceptions, well then you can compare them and say, “Well, is this comparable to the exceptions, the religious organization wants?” But here there was no exception at all, and that made the law vulnerable. So I think it’s an important doctrinal move and so I disagree with those who said, that really the majority opinion does not improve the situation for religious believers. In the sense it does, if there’s any kind of administrative exception, you got to make a free exercise challenge. And even if it’s not an exercised administrative exception.

Richard Reinsch (13:51):

So you’re saying, just for my clarification, the law at issue in the City of Philadelphia allowed for exceptions to a non-discrimination policy, but those were never actually exercised by the agencies participating in the program.

John McGinnis (14:08):

That’s correct.

Richard Reinsch (14:08):

And that’s funny, because I read one of the administrative exceptions was race, that agencies could discriminate on the basis of race.

John McGinnis (14:17):

Well, they could, but as I understand it, this had not been an exercise exception. In other words, they had not permitted agencies to do that. So I think that is significant that there was no part of the opinion that if indeed an agency had permitted an exception, I think there would have been questions of, “Well, is this comparable? Are there stronger reasons for denying the religious exception than the other exception.” But I think there were no actual exceptions granted, at least in the specific respect that the religious agency was asking for an exception. I think that’s one of the significant aspects of the case myself.

Richard Reinsch (15:02):

On this, we’re talking about Scalia’s opinion, a famous opinion in the Peyote case, Smith case, whatever you want to call it, in Oregon in the early ’90s. Do you sense in the opinion a desire to overturn that reasoning?

John McGinnis (15:22):

Well so there are two concurring opinions. One the Alito’s opinion says it should be overturned and goes to a very long historical originalist analysis.

Richard Reinsch (15:33):

Did you find Alito to be correct in that regard?

John McGinnis (15:36):

I think that’s a hard question as a scholar, I’d want to study it a longer time. I think he makes some very powerful points. It’s certainly more persuasive than Justice Scalia’s opinion as at least as understood as an originalist opinion. One of the striking things about Smith is for the most famous originalists on the Court, how little originalist analysis there is. And so in that sense, I think just as Alito is pushing against an open door and makes a persuasive case, Justice Barrett I think is persuaded by the textual argument that, the free exercise clause doesn’t seem to be a clause about neutrality and we are actually allowed free speech claims even about laws that would neutrally apply to all speech. So it seems anomalous to understand free exercise in that way, and structural arguments like that, I think our originalist argument. So in that sense, I would say that I am persuaded at the moment at least of Justice Alito is position, but open as always I think an originalist must be, to arguments on the other side based on evidence.

Richard Reinsch (16:52):

So Barrett’s claim is something like, religion in the first amendment is actually regarded like speech, it’s good. It’s a good thing and we want to protect it. And laws of neutral applicability aren’t really the issue, it’s are you impinging on religion period, and that automatically triggers a claim.

John McGinnis (17:12):

Right. And that structurally appears to be the way rights work, and so why should religion be different in that respect? So that’s their argument. She’s not persuaded, she says in her concurrence by another kind of argument, which is that historically people were granted exceptions. And the problem with that argument is that exemptions, is that seems to be a kind of common law argument, and maybe it didn’t carry over to the Constitution. So I think that is perhaps less clear. In any event, the difficulty then for Barrett is because she doesn’t have that historical understanding of when exemptions were granted. That’s one of the things that worries her because she doesn’t have a test that is a touchstone for when you should grant exemptions. Whereas I think Alito looking at the history says there is a test and it’s something that may approach something on the order of strict scrutiny. So that’s the difference between Justice Barrett and Justice Alito in Fulton, and why Justice Barrett I think, is not willing at least at the moment to overrule Smith, which is a little unclear what should replace it.

Richard Reinsch (18:28):

Okay. So now John, we were talking before the podcast that you said every Supreme Court seems to have its heart at a certain area of the law. And perhaps this Court has its heart in the era of administrative law. What happened in this important body of law this term?

John McGinnis (18:45):

I think that’s right. I think Rehnquist Court you can describe is very focused on federalism, and this Court very focused on administrative law. And I think indeed Trump’s appointments through the White House counsel of McGahn certainly Gorsuch and Kavanaugh, were appointed in large view for their skepticism about certain doctrines of administrative law. And their concern about the administrative state as a headless power that really was unaccountable. And we see these appointments bearing fruit, I think in two very important cases in this term. And one is the case of Collins, which is a case about an obscure, I know there are hundreds or 150 or so federal agencies. That’s probably one your listeners haven’t heard of them. I hope I get this right, The Federal Housing Finance Agency.

Richard Reinsch (19:39):

I think that’s right. Yeah. FHFA.

John McGinnis (19:42):

It’s director is insulated from removal. And the argument was based on another case about the Consumer Financial Protection Bureau, where its director was also insulated from removal. And the Court said, “Well, you can’t do that.” You might be able to have multi-member boards because we have precedent on that. But the basic argument, they basically accept the unitary executive argument, that’s the background principle. By unitary executive we mean, the president is in charge of the executive branch and therefore must be able to fire his subordinates. And they accept that in this case and say, there really aren’t any strong distinctions between this and the CFPB. There were a few distinctions, CFPB couldn’t make its own budget, but they said these weren’t strong enough. What’s really significant about this case is the amicus who is appointed to defend it after the Trump administration would not defend the constitutionality of this statute and said, “Well, you could put others in its place. For instance, well, what about the chairman of various federal agencies and other actors who seem to have authority that they exercise without going through a board. And the Court, doesn’t say those are not open to challenge. Indeed, it seems to be inviting a challenge.” So my impression is that what’s going on here is, they’re going to cut back and back on some vulnerable precedent. The precedent of Humphrey’s Executor, which says, at least that wards, like the FTC, the FCC can be insulated from removal. And we say, “Well, the chairman can’t be insulated from removal.” And I think ultimately they’re trying to isolate those cases, and we may even see Humphrey’s Executor overruled once you get enough of these cases, they’ll say, “Well, this case is really an isolated anomaly and then kick it over.” So I think we may be seeing this slow, but complete triumph of this theory of the unitary executive. That’s the significance in my view of Collins.

Richard Reinsch (21:53):

The so-called independent agencies and commissions just for our listeners, their heads, or their board of commissioners or agencies or whatever you want to call them, are insulated from removal, exactly why?

John McGinnis (22:11):

Well, the theory before was that, I think here’s the theory that because these agencies get not only executive power, they are rulemakings, they make judicial decisions, they’re not purely executive agencies and therefore they should be insulated from the president’s whims. I think that’s the argument. The difficultly with that argument is the whole theory of why they can be in the executive branch is, they have to be executive agencies and that’s the anomaly here. So once you decide that Congress can delegate power to the executive, you have to say, “Well, it’s really executive power it’s exercise. And the executive branch can’t exercise legislative power.” And so the theory in favor of insulation is in conflict with the theory of delegation itself.

Richard Reinsch (23:05):

Okay. But the people in those roles, they’re not directly challenged here. It’s an agency head insulated from presidential removal. That’s where the Court seems to be pulling us in.

John McGinnis (23:17):

Going I think. That’s my… Because as I say, I think this is one area I think that Roberts and Kavanaugh may care more about as Washington insiders actually. And one other point I would make, I’m making a kind of formalist argument, which I think is the right argument. I think there’s also a realist argument about why Republican appointees are much less sympathetic to independent agencies and indeed independent inferior officers, because the bureaucracy leans left, there’s enormous evidence of that. And so if you don’t have the precedent tugging on the other side, it means it’s going to be much harder for Republican administrations to do what they want to do. Because it’s quite understandable that agency heads they’re going to say, “Well, I better get along with the bureaucracy, otherwise it’s going to be more difficult for me.” Of course, if the president says, “I’m going to fire you, unless you go with my program,” there’s a vector the other way. And so I think there’s a realist as well as a formalist reason that we’re likely to see a continuation of the whittling away of these exceptions to the unitary executive.

Richard Reinsch (24:33):

I wanted to ask you briefly about this case, because it puzzled me just in my own knowledge and thinking about how unions organize. Cedar Point Nursery, 6-3 decision that union organizers can’t compel their way onto, in this case it was corporate agricultural property, to engage in union organizing. And I guess, and I’m sure you have better command of the facts than me, but isn’t it always the case though that a union has to go on to company property to organize? Is this a significant case or not?

John McGinnis (25:06):

Actually I don’t think it is always the case that they have to go on company property to organize, as I understand it, I’m not an expert in labor law, this was a kind of particularly California statute. So I don’t think it is a national statute and the Court doesn’t say that you can’t go, you can’t grant easement that you’d have to pay some amount of money for it. That’s the significance of this case. It’s a 6-3 decision where the majority says that, “We’ve got to have a bright line here. Physical invasion takes away people’s property.” So I don’t think it’s the case. The Court makes it very clear that government officials can come on to people’s property because the common law was understood that they could do so because there may be laws to enforce. It’s very different when you allow private individuals to come on to the property. So I think the significance of this case is in some sense, it’s also a regulatory case and Breyer has as he often does a multifactor test to say why this isn’t a taking. Here the Court is giving a clear rule and saying that regulation just can’t whittle it away, and you’re going to have to pay to be able to get onto a property. So I think that’s the significance of this case, that the alternative, it means that everything is kind of up to regulation. You don’t have clear rights that are protected by the Constitution, they can be whittled away.

Richard Reinsch (26:42):

A question in my mind in thinking about this case and the facts would be different, but it seems to me there’s a carryover with this desire to regulate social media companies, what they can say, what they can’t say. I don’t know if you find a connection there, but just the ability to tell them as a government, well kind of go onto their property and give them commands and instructions. Do you find any connection there?

John McGinnis (27:09):

I think it is. So your argument would be that, so the government regulates, so you’ve got to permit other people to speak. And that’s a lot like going on to other people’s property to speak, and I think there’s something to that. Of course, one is a first amendment case, another is a property case. The government in a property’s case can require you to let people on your property, they just have to pay for the right to access. The first amendment is often a trump card that the government can’t force you to allow someone to speak in your newspaper, regardless of whether it pays for it. So in that sense, it’s different, but there is a similarity that in both kinds of cases, the government is permitting an intrusion of someone into your space.

Richard Reinsch (28:01):

Okay. Now this prompts, I think an easy segue into the next case we should talk about. Americans For Prosperity, a California case implicating the first amendment. California law mandated donor disclosure by non-profits to the state of California. And this was required by California law. And the Supreme Court ruled 6-3 that this impinged, the first amendment rights. Is this a significant victory for free speech?

John McGinnis (28:26):

I think it is a significant victory for free speech. And what it shows is that the majority is taking account. And that is one point I think, needs to be underscored about Supreme Courts generally. Even if you’re an originalist, even if you want to follow precedent, the question is you still have to apply precedence to the facts of the world. And I think this case should be understood as, recognizing the reality of cancel culture. So I think the way to understand the case is to think of the case that it builds on. It builds on cases from the south in the civil rights era, when some Southern states required organizations to disclose their members. And it was pretty obvious that although these laws were often neutral, that they were hoping to disclose the membership of the NAACP. And that was really obviously quite problematic. And what prompted the Court to say that, “Well, you have to have some really good reasons for that, and it has to be pretty narrowly tailored. Otherwise, we think we’re ferreting out that you’re really trying to make it harder to speak, by revealing donors and members.” So that’s that era.

We’re now in a new era and you might say, “Wow, it’s not as terrible, of course, as the era of Jim Crow and the era that people are fighting against segregation.” On the other hand, we have a pervasive issue here of the cancel culture. And I think that’s what’s behind this and in sense it’s say, “Well, we may have a more general cultural issue, particularly with the social media and having your name be able to be put up in lights and being fired from your job, that we’re all a bit more vulnerable in this era.” So I think it’s not only an important first amendment case, in my view underneath it all, is an important recognition that the world of social media has made people more vulnerable to having their decisions about who to support broadcast to the world and used to harass them. And so in that sense, it’s I think a very important case.

I would just underscore that these cases really show how important it is to understand that these Supreme Court cases are not just doctrinal, they reflect our underlying cultural moment, the cancel culture, the culture of indoctrination in schools. Those larger issues are very much on the justices minds when they decide these cases.

Richard Reinsch (30:47):

We also have significant instances in recent years where donor information of nonprofits or to political arms released to the government, found its way into the public square.

John McGinnis (30:59):

Well that’s of course actually true of that case, but so-

Richard Reinsch (31:02):

And it happened… In California, one goes back to the same sex marriage referendum, where lots of people lost their jobs in California when that emerged, they had donated to the anti same-sex marriage groups. So yeah.

John McGinnis (31:16):

Well, I think that’s on the Court’s mind. But I think it’s interesting that in this very case, and just to go back to the facts of this case, this is about charities and having that there was a requirement that you list all the important donors to your charity. And then that was what was being challenged here. California had, well, they said they would keep them confidential, they had released many of these donors. So again, and the example was California didn’t seem to be being very careful and maybe for political reasons releasing these donors, or at least not being cautious. But it’s interesting, the Court… you could have written a more narrow opinion. You could have said, “Well, there’s clearly a chilling effect in California, at least for the next 10 years, because who’s going to believe California they’re not going to do the same thing?” But the Court did not… it wasn’t as narrow as that. In some sense, the dissent, I think said, “Well… the dissent said this.” If you’re really sad just about the facts of this case, that you didn’t think they should have to give in this information, maybe you have a point. Their real problem was the more general requirements for information generally about donors that even if it hadn’t been disclosed in recent times, even that, you have to have a very strong reason not to show that it’s important for enforcement and you can’t do it another way. And I think that’s what suggests that the court is not wedded to the particular facts of disclosure, but to the general fear of cancel culture, that as you correctly point out, they have its origins and epicenter in California.

Richard Reinsch (33:03):

Another first amendment case, Mahanoy Area School District, a case in Pennsylvania where a teenager didn’t make the cheerleading varsity squad. So on social media, she used the F word several times to refer to her school. And then she was then removed from the junior varsity team that she had made. And the Supreme Court ruled, “Social media used by a student in vulgar fashioned can’t be used to discipline the student.” As I read the case, what also was in my mind was critical race theory and other attempts more recently by governments to impose sort of a more comprehensive doctrine on students, and parents and students objecting to this. And it seems to me, this case might actually offer greater protection to those who are objecting to government policies inside schools, in terms of how they might react to them on social media, other than just the narrow facts of the case. What do you think?

John McGinnis (33:59):

I think that’s right, just as I think cancel culture is in the mind, at least of some of the justices in the previous case as least that’s how I would connect them. The culture of indoctrination is on the minds of some of the justices, particularly I think that’s true of the Alito, Gorsuch concurrence here, which I think makes it… So let me suggest that this majority opinion is by Breyer, and as with all of Breyer’s opinions, it’s a multifactor test of whether you can possibly discipline students for off-campus social media expression. And he says, “No, you can’t do it in this case. They didn’t really have a very good reason.” And I think it gives a kind of presumption against it if you’re off-campus.

And I think the reason that in my view, that’s a correct presumption and it should be a pretty strong presumption is that, I think the reason that schools can discipline students for on campus action is, one, necessity, of course you can require people to talk about math in math class and not talk about anything else, but also there are sort of acting in Loco parentis, and that’s a venerable doctrine that was around when the time the constitution was created. But once they get off campus, I think it’s really hard to say that a school can be acting in Loco parentis. And so I think Alito, Gorsuch concurrence, while I’m not saying that’s an absolute bar, tries to erect a pretty strong barrier. And I think that’s one of the reasons I think they fear that whatever, what concerns about indoctrination within the schools, that schools will try to, at least some schools may start to regulate speech outside of schools, to create a new and worrying orthodoxy. So I think you’re absolutely right. And so I would just underscore that these cases really show how important it is to understand that these Supreme Court cases are not just doctrinal, they reflect our underlying cultural moment, the cancel culture, the culture of indoctrination in schools. Those larger issues are very much on the justices minds when they decide these cases.

Richard Reinsch (36:28):

Okay. Is it worth talking about California v Texas? Perhaps last of the grand challenges to Obamacare we’ll see.

John McGinnis (36:36):

I think there’s not much there, frankly. I think that it was pretty clear who was going to lose all. And it was lost on a very technical standing issue. And I don’t think… Well, of course, standing issues or issues interesting to lawyers, I think are little interest to people outside the law. Moreover, many people think the standing doctrine is one of the most manipulable doctrines. And so you might well think that the majority of the Court just wanted to dispose of this. They didn’t think, I think ultimately that it was a very good argument. I think just practically that this could strike down all of Obamacare, because Obamacare… I think the real reason had been the statute had been passed at not wholly again, but had been passed. And so it’s very hard to understand how it could be passed and yet you could say that the result of taking out the-

Richard Reinsch (37:37):


John McGinnis (37:38):

… the mandate and understanding it’s being an unconstitutional tax and now having no money being paid, how one can understand that, by taking that out one could destroy all of Obamacare. I think people like Roberts and others thought that would have been seeming to encroach on Congress’s power, Congress had never made a decision to get rid of Obamacare. So I think that the decision here was for ordained and the standing issue was a way to put the challenge out of its misery.

Richard Reinsch (38:10):

Okay. So I’ll introduce this case by way of saying I was reading in, I think it was The Wall Street Journal, the famous coach of the University of Alabama football team. Nick Saban said that his quarterback, who is all of 18 years old is now worth several hundred thousand dollars, because of name and likeness contracts he’s received. And that results, if I’m not mistaken from this opinion, NCAA vs Alston, where the NCAA was ruled to have violated antitrust law with strict limits it had held on student athlete compensation. So it seems to me, this has the potential really to change the nature of highly competitive college sports.

John McGinnis (38:49):

I think that’s right. Again, I think it’s very interesting culturally this case, as an antitrust case, and I teach antitrust. I don’t think it’s that surprising a case. So let me give you some background. This is a kind of what I call an antitrust, a frenemies case. So the NCAA is an interesting position. On the one hand, in some sense, it’s constituting the sport of college football. On the other hand, of course the teams are competitors, and so that’s why it’s a frenemies case. So they have to have the ability to constitute the rules of the game. They all have to play the same game and they also have to even constitute the idea that this is somehow different from professional sports, that it’s amateur sports.

The difficulty though is that, unlike constituting the rules of the game, where the Court’s going to give a lot of deference to what it does, the restriction on any kind of compensation, including image compensation, including extra support for students, really goes to the heart of antitrust it goes to competition for labor, for wages. And so I think what the Court saw was this is going to be decided under a rule of reason case. The rule of reason is you’re going to look at both sides, what’s the justifications of the partnership as it were, the NCAA are for this? But you’re also going to look at it’s a substantial effect on hurting competition, the competition between college athletes to go to what, which school they’re going to be going to, and getting out as high a compensation as they can. And they pretty much defer here to the district court’s findings, which were that this was a substantial intrusion on the ability of these students to compete and to earn money, I think there’s no doubt about that.

And their other point was there were a lot of surveys here and it’s suggested that so long as they weren’t actually paid a salary, but they got image money and things of that sort, people weren’t awfully bothered by the fact that they wouldn’t be amateurs in the classic sense. And I think that tells us also a lot about our culture. And that also doesn’t surprise me and the Olympics Of course, was once wholly amateur, people were not bothered by a moving away from that line. And I think the Court is in that sense reflecting or the district Court is reflecting and looking at the survey data, is that this really isn’t necessary for college football to survive as independently from professional football.

You need to have, maybe you have some line, you can’t be paid a big salary, but we can still allow these college athletes to benefit from their talents. And I think there’s also a sense, the other cultural factors, is there is a recognition at least that many of these big sports college schools, that some of these students spend all their time on the field and not learning much. And they actually don’t have great prospects, if they don’t get into professional football, they don’t have great prospects with their college degree. And so why shouldn’t they be able to earn a little more money now? So that’s, I think what’s going behind. I don’t think it dramatically changes antitrust doctrine, what it dramatically may change is the nature of college sports.

Richard Reinsch (42:07):

It’s interesting hearing you say, it’s not an innovation in antitrust doctrine. It sounds to me like you’re saying it’s sort of brass tacks and fundamentals of antitrust doctrine. And yet it took… this has been an issue for decades, and only now finds a resolution, that’s interesting.

John McGinnis (42:23):

Well, I think one reason is, is I think at one point, and this goes to the cultural point. At one point, I do think there was an image in people’s mind of the student athlete that really was sacrosanct, but now when it’s people have understood perhaps more about what student athletes are like, is understood more I think in the public’s mind that isn’t as true anymore. And so you actually could say, well, maybe 40 years ago the case should’ve come out the other way, because this was necessary to constitute, people wouldn’t have been interested in college sports, if they had felt that they were being paid at all, that that was so important to their sense of what it was to watch college sports, but I think that’s probably not true today. So as the facts change, the law changes, it changes often. And I think this may be another example of that, and we’ve seen several. If I’d say, that’s one of the themes of our discussion. The rise of cancel culture, the concern about indoctrination, and now I think just the sense of the permeability of the status between amateur and professional. These all are crucial changes in the culture that are driving Supreme Court opinions.

Richard Reinsch (43:40):

Maybe we’ll end with, as an originalist, as a formalist, as a classical liberal, were you satisfied with this term or crucial exceptions that disappointed you, or what would be your final thoughts here?

John McGinnis (43:53):

I’m satisfied with this Court term as a beginning. I certainly think the Court has many things to work out if we’re to move more back to originalism, and particularly the relationship between originalism and precedent, and that’s where the Court made a lot of progress on thinking that through. I think Justice Barrett is going to be one of the most key judges in that respect, whose concurrence and fault really doesn’t attempt to do that. Other than to suggests she’s not with Justice Thomas and being willing to overthrow precedent. That’s the real question going forward. I think there’s little doubt that a majority of the justices are good faith originalists when there’s no precedent. And that’s good for classical liberalism in so far as I think we have a constitution that by and large is a charter for classical liberalism. The difficulty of course is, we’ve had 40, 50 years of precedents that are not originalists. What do you do with them? We have Justice Thomas whose view is pretty much, “So we get rid of them.” We have Justice Roberts who I think is very reluctant to overturn them. The question is, can there be a via media between these? And that’s really where I look to Justice Barrett to be an intellectual leader. And we haven’t seen that so far, but that’s not a surprise, that would be a tall order to ask her in her first term on the court.

Richard Reinsch (45:20):

Well it looks like there will be opportunities coming in the next term.

John McGinnis (45:24):

Absolutely. The Dobbs case about abortion, I think being the most important case that’s come for many years.

Richard Reinsch (45:32):

We’ll be looking for your commentary on that, John. John McGinnis, thank you so much for joining us to discuss the Supreme Court term 2020-2021.

John McGinnis (45:40):

Glad to. Thanks Richard.

Richard Reinsch (45:44):

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