John O. McGinnis joins host John G. Grove to analyze the major cases from the Supreme Court’s recently concluded term, which has taken place in the midst of a concerted effort to undermine the institution’s legitimacy. 

Brian Smith:

Welcome to Liberty Law Talk. This podcast is a production of the online journal, Law & Liberty, and hosted by our staff. Please visit us at lawliberty.org, and thank you for listening.

John Grove:

Welcome to Liberty Law Talk. I’m John Grove, the managing editor of Law & Liberty, and I’m your host for this episode. Last year, the overturning of Roe v. Wade seemed to symbolically declare a new era at the Supreme Court. To its critics, it marked a sharp right turn as Republican appointees exerted greater influence. The court itself and its defenders argued on the contrary that it was exhibiting a renewed reliance on written law, enforcing the constitution and statutes rather than this or that moral theory or preferred policy.

This year the court continued to take on highly controversial cases, most importantly rejecting affirmative action programs and college admissions as a violation of the Equal Protection Clause and finding that state non-discrimination laws cannot coerce expressive speech from public-facing businesses. Left-wing critics continued to present these developments in terms of partisanship and ideology rather than law, and they’ve increasingly begun to build a narrative of illegitimacy, perhaps in preparation for renewed court packing push. Joining me to talk about this year’s monumental term and the political narrative swirling around the Court is John McGinnis. John O. McGinnis is the George C. Dix professor in constitutional law at Northwestern University, and he’s a contributing editor at Law & Liberty and, of course, one of the country’s most renowned experts on originalism. John, thanks for joining us.

John O. McGinnis:

Delighted to be here.

John Grove:

Well, it seems to me that for those of us who don’t buy the idea that the Court is simply a partisan actor, this term further solidified several of the tendencies that you and I talked about last year on the podcast, originalist, textualist, and non-deferential when it comes to administrative actions without clear statutory authority. What were your thoughts on the term?

John O. McGinnis:

Well, I think it was a very important term. In some ways, I think it may have been a more important term than the term in which Dobbs came out. If you look at stepping back from the reasoning of the court, which I’ll discuss in a moment, if you look at the cases it decided, they really go to the heart, I think, of the fault lines of the modern society. Nothing I think is more important than the question of whether we’re going to address people as individuals without regard to their race or treat people as with different rights or different preferences with respect to the racial group they’re in or some other form of group like that. And the court was very emphatic and in the most important area that we’re going to have a colorblind society when it comes to education. Secondly, the importance of descent is extremely important in a republic, and that, I think, is central to the creative case, the web designer case, where the center, who really did not have the power of someone connected to the media, was able to follow their own ideas. And so that’s also very important. And then finally, I think you have to understand the student loan case, Biden v. Nebraska, was an important separation of powers case. 

This goes to the heart of the changes, I think, that have been happening in our structure of governance, where the president has more and more authority generally in administrative law, where administrative state, and where he operates without Congress through regulation. This was an attempt to operate without Congress through spending, essentially spending $400 billion dollars without congressional blessing. And that changes the whole structure of the government. So another way of thinking about this is that it may be a term in which the Court protects what William Graham Sumner called the forgotten man, the person who’s really not a part of some organized group. Of course, that’s true with respect to student loans.

Who’s that going to hurt? It’s going to hurt taxpayers, it’s going to help a very specific group, and political scientists understand that our modern democracy often helps concentrated interest groups versus diffuse groups. It also, I think, is very similar to with respect to the affirmative action case or the racial preference case. Actually, the very organized groups who are arguing for preferences and the people who lose out from them are quite unorganized. In fact, it’s very unclear who exactly they are who doesn’t get that slot at Harvard or UNC. And the third issue I think is also true is I’m reminded all the time we now have a structure where… and maybe understandably, certain rights are proclaimed all the time. We have my daughter’s classes—even though she’s only in first grade, there’s a Pride Day. On the other hand, there may be some people who don’t agree with that.

And how are they going to dissent from things like same-sex marriage? How is that going to be a space for them to do that? So that’s one way I would think of this Court more in this term, more in political science terms than legal terms, that it raises this question of the Court as, in some sense, a defender of the unorganized versus the organized. And you might think that’s an important role in a political science sense for the Court because, after all, organized groups do very well in the political process and maybe even in the administrative process. They can succeed so long as people cannot get a vote on it by the public—they can concede with legislatures to get things for what they want. So that’s what I see the most—I see it as a very momentous term in that sense.

I think it was less important as a term for originalism, the affirmative action case, the web designer case, the student loan case. These were really rather doctrinal cases, at least as they were presented. There were some concurrences that were originalist in nature, and we certainly can talk about that in terms when we get to the affirmative action case. But I don’t see this as primarily a case about originalism. Moore v. Harper had some discussion of originalism. I think there’s some importance there, particularly in understanding the legal backdrop to words in the Constitution. So I think that’s significant for that. But I do not see this as breaking a huge amount of ground for originalism as much as going back to certain structures and certain long-term precedents—at least the Court is relying on long-term precedence for defending this idea, I think, of a liberal order where Congress has to act, where people are treated as individual, where their rights are dissented.

These are very long traditions in the United States, and not surprisingly, they’re represented by a whole variety of judicial precedents. That’s not to say that I don’t think some of them are consistent with the original meaning. It’s just not that the Court, I think, made the decisions on the basis of original meaning.

John Grove:

Right. Yeah. That’s a really interesting way that you described the term in terms of the unorganized or the harms or potential harms to people who are not part of a powerful political group. So who’s left out of admissions? And I had not thought of the student loan case in that way, but that’s a really interesting way of putting that, too, in that you have a very clear political class or political unit of people, student loan holders who are going to be very animated in the political process. But then in relieving those loans, you kind of distribute the burden to that across a wide group of people who are not going to be very organized and active in the political process. So that’s an interesting way of putting that. So let’s dive into these cases specifically. So let’s talk, of course, about the biggest one of the year first.

That’s the affirmative action case, Students for Fair Admissions v. Harvard and UNC. So this one, you’re right, the people who are left out of admissions in some way unorganized, the emphasis here, the people who brought the case, a group representing Asian-American students because statistically speaking, you can identify that a lot of the people that are left out because of affirmative action programs were Asian-Americans. They challenged the affirmative action programs of Harvard and the University of North Carolina. And what’s the legal background of this challenge? So what had the Court said before about what consideration of race was permissible, and why did the Court change its mind?

John O. McGinnis:

Well, the Court had a torturous set of decisions, tortured in the sense that moved back and forth. But the essence of it was that, in general, race, the Court said was disfavored, but it could be taken in account to promote what was called diversity given a plus factor or a tip as it were, so long as it didn’t lead to quotas. Now exactly, the line between quotas and a plus factor was not entirely clear. And as the Harvard case demonstrated, there seemed to be a surprising uniformity of year after year of the percentages. So it did seem to be engaged in sort of racial balancing or quotas, but that’s actually not the… so that was really the law at the time. The other important point was that the law noticed that there were two cases here, one against the state institution, one against a private institution, did not actually depend directly on the Constitution because private actors can violate the Equal Protection Clause.

What had happened, though, before is to gather with this idea you could go to diversity but not the quotas. The way they got this through the law was they interpreted the Title VI, which prohibits discrimination. Despite that rather clear language, they understood it, or at least a majority of the Court understood it to track the Equal Protection Clause. You might wonder, well, how that could be the case. Equal Protection Clause doesn’t sound like a clear prohibition against discrimination. It’s about the equal protection of the laws. But that’s the way the Court had interpreted it. And that’s the way the Court decided the case. They did not revisit the statutory interpretation in this case but said, “Well, we’re accepting that Title VI follows the Equal Protection Clause, and therefore we’re going to make an Equal Protection Clause holding.” That actually, of course, made the case more dramatic because that meant even as with respect to state institutions, Congress couldn’t change the result in this case because it’s now part of the Equal Protection Clause.

And, of course, generally, the Court tries to avoid constitutional holdings. So I may speak a bit about that. I’d be happy to talk about it. I’m sort of rather critical of the Court’s failure to simply interpret, I think Title VI according to its terms, which would avoided the constitutional difficulty.

John Grove:

Right.

John O. McGinnis:

Nevertheless, it made an equal protection holding that diversity that, well, not explicitly overruling Grutter, suggests that the reasoning of Grutter was almost self-contradictory by saying that… a few things saying that one, that necessarily admissions was zero-sum. And so you always were discriminating against others, and that violated what’s called strict scrutiny. You have to have very compelling reasons, and that this goes to the core of getting equal protection is not to have something be determinative, and race could be determinative of your chances, your opportunities. So that was one of their holdings.

And then also, I think very importantly, it said that this necessarily engaged in stereotypes because the whole idea of diversity meant that you thought that an African-American or Hispanic student was bringing something distinctive to their race. And, of course, it might well be the case that someone who grew up in a town was very wealthy, African-American, grew up with a lot of… in a very integrated town, what different perspectives they have actually from their white classmate who grew up also in that town. And the stereotyping is a great danger. And finally the Court was helped by one of its most famous precedents, Grutter, who said, “Really this is going to be temporary and it’s going to be 25 years.” We’re almost to the end of that 25 years by saying, “Well, Harvard and UNC had no intention of ever stopping this. They had no timeline.”

John Grove:

And they of course came back and said, “Well, it was 25 years and it’s only been what? 20 years or something like that-

John O. McGinnis:

But the difficulty was they had no… that there was no suggestion. In fact, they were asked their oral argument, “Well are you going to stop at 25 years?” And it was pretty clear that they were not. They weren’t just looking for a 40 year reprieve as it were.

John Grove:

Right. So is it fair to say basically the Court here, strict scrutiny typically requires you have to have a compelling government interest and it has to be narrowly tailored. The Court basically kind of just said it’s not clear that these programs are even tailored at all to achieve diversity. It’s really just… it’s, as you said, it’s racial balancing.

John O. McGinnis:

And I think it was not clear that they thought even that diversity was going to be compelling, at least in the context of which the Court… at least as it was practiced, maybe it could be practiced in some other way. But they also went in interestingly, following a very good book by David Bernstein showing that the categories were extremely arbitrary. Some people didn’t get… and so Middle Eastern people didn’t get a tip and yet they might bring some kinds of diversity here. So I think what they showed that whatever you thought about diversity, that these was incoherent. It was very unclear also, they could make it coherent was one of the things they said about strict scrutiny is you have to have clear metrics so we can measure whether you’re accomplishing your goals. And there were no clear metrics.

And I think it’s very unclear after this case whether, I think that’s unlikely that universities could come back with clear metrics on diversity. In any event, they also have this time restriction that I think makes it very impossible, I think for universities to think they can revive this. Now universities, we can talk about that, some may try to have a move to kind of sub-diffuse, try to avoid the rules here.

John Grove:

Right. So that’s been one of the big questions people have asked since this decision is, “Was the door left open a crack in some way for universities to kind of craft sort of…” In some ways the Court said, “We’re not saying you can’t consider racial experiences,” or something-

John Grove:

Consider racial experiences or something like that, people at somebody’s engagement with racial questions. But at the same time they also said you can’t just create the same system using different language or something like that.

John O. McGinnis:

Right.

John Grove:

So what do you think? Do you think the door is open for a slightly revised version?

John O. McGinnis:

Well, I think the Court is right. I mean you’ve got to be able to consider people’s individual circumstances and that may involve their circumstances to do with race. But the Court also says, well you can’t do indirectly what we’re forbidding you from doing directly. So I do think what some universities will try to do indirectly and we’re likely to see follow on litigation about that. But I’d be skeptical that they’ll succeed in this, there’s a six three majority decision. The Court seems very emphatic, everyone signed on to the chief’s opinion although there were important concurrences. So I think the universities… And then I may come back to my critique of the Court’s decision as a legal matter. But I think universities are presented with a choice here. They can try to essentially jury-rig their admissions processes to get to the same result. But they’re going to face a lot of litigation and it’s going to be very costly to them as well.

Because a lot of things they’re going to have to do is downgrade test scores and that’s going to interfere with signals with non-minority groups. So they’ll get a less good class because they won’t be able to choose on the basis of test scores easily. So you’ll have a less meritocratic, a less good university. The other reason maybe they can use some of their endowment, Harvard has $50 billion in endowment to help for feeder schools for socioeconomically disadvantaged people. Maybe that would be a real contribution to social justice rather than I think this performative contribution that we see today.

John Grove:

Okay. Yeah. Let’s go back to what you were talking about at the outset. What you said was very helpful because most of the discussion of the case was prior to the opinion that I had seen was focused on Title VI of the Civil Rights Act, and then I read Robert’s opinion and it’s all about the Equal Protection Clause. So I was a little bit confused, so what you said there is very helpful. So essentially, Title VI of the Civil Rights Act has been interpreted as mirroring and reflecting the Equal Protection Clause but applying it then to any entity that gets federal funding. So essentially, as Robert applies the Equal Protection Clause. He’s also saying that is the meaning of the Civil Rights Act and that’s what applies then to Harvard, the private institution and then of course UNC the public institution is bound by the Equal Protection Clause. Did I get that right?

John O. McGinnis:

Yes.

John Grove:

Okay.

John O. McGinnis:

Right. But the public institution would’ve been bound anyway by the Equal Protection Clause. But now Title VI binds… Even Equal Protection Clause doctrine applies to Congress. Now to be sure Congress could change that, they could change the interpretation of Title VI and say, well we actually don’t follow and we want to do something else. So that is left open, I doubt there’s much appetite for that-

John Grove:

Two questions on that before we move on from this one. Two questions on that. So one, is that a sort of settled question? It sounded like you might have some questions about whether Title VI actually is just a reflection of the Equal Protection Clause.

John O. McGinnis:

Yes. I think as an original matter, I think almost no textualist would think that because that doesn’t read like the Equal Protection Clause. It’s actually much clearer than the Equal Protection Clause. We can talk about the debate, there was an originalist debate whether these kind of reverse discrimination does violate the Equal Protection Clause. But I think it’s much clearer and it’s bizarre to then interpret a clear statute to make it less clear. That’s very strange and again, I think this had to do with Justice Powell and his attempt to come to a Solomonic decision. No quota’s or preference, but diversity and so he did all this fancy footwork and the Court follows it in the Grutter case. But I don’t think it’s well-founded in the law and I think what I would’ve done if I were a justice. I would’ve said, well this is an incorrect interpretation of Title VI. We don’t need to reach the Equal Protection Clause and courts don’t like to reach constitutional questions if they can decide them on statutory questions.

Now that what they faced was two things. One, Roberts has a footnote saying, “Well, the parties didn’t actually argue this.” But they did argue for overruling Grutter. I don’t think you necessarily have to say the Court has to accept exactly how they want to overrule the case. Secondly, the other problem is there’s a very strong statutory stare decisis on the idea that Congress could always change things. It doesn’t like what the court says about it, even if the Court is wrong. I think that’s sort of fictional myself. I mean, it really depends on the idea that the Congress is actually focused on what the Court is doing and it also seems to give a lot of weight to congressional silence. Which it doesn’t seem to me that it should have constitutional weight. But I think the Court could have avoided dealing with the general proposition of statutory stare decisis by saying, “Well, at least in cases where we’ve interpreted the statute wrongly to require us to decide a constitutional issue.

We should be able to revisit it then. Because otherwise, we’re forced to decide a constitutional issue which, in any event, doesn’t have this strong statutory decisis. We were able to just make decisions.” So it’s very bizarre to have this distinction between different kinds of stare decisis and have it be driven by a wrong statutory interpretation. So I think the Court could have addressed it. I think that would’ve been a better result because I think avoiding constitutional questions is a good idea and I think also, it’s a good idea to decide questions that are easier. I think that Equal Protection Clause is a harder question and that maybe we should say a few words about that. Well Roberts doesn’t address it, he just address the doctrine. There’s a debate between Justice Thomas and Justice Sotomayor and Justice Jackson about the Equal Protection Clause and whether or not reverse discrimination is contemplated. It’s a historical debate, largely about something called the Freedmen’s Bureau.

John Grove:

Your regular co-author and Law & Liberty contributor, Mike Rappaport was cited in that.

John O. McGinnis:

Yes, that’s right. He’s written the most important article on the Freedmen’s Bureau and arguing essentially the Freedmen’s Bureau doesn’t show that sort of beneficial or reverse discrimination is permitted. Because the Freedmen’s Bureau wasn’t about benefiting blacks, it was about benefiting newly freed slaves, and that’s a different category. Indeed, one of the things I think that comes out of this is that it might well be all right, even at this stage, to benefit the descendants of slaves.

John Grove:

Right.

John O. McGinnis:

Which, of course, is not the same as benefiting all people who are admitted-

John Grove:

Who check that box that you were talking about before, of those categories where the categories are not really capturing.

John O. McGinnis:

Actually, it’s interesting. The universities, there are a lot of people who are just recent immigrants from Africa for instance who benefit from these categories. So that’s the debate on originalism and I think another interesting question is whether indeed even the Freedmen Bureau is relevant because the Equal Protection Clause applies to the states. It doesn’t apply to the federal government. So it’s not obvious that the federal government doesn’t have more ability to do this than the states and the Equal Protection Clause that is then the basis of the holding here. But this is all in some setting a sideshow of the opinion, it’s really not at the center of the Court’s decision.

John Grove:

All right. So going back I had one other question and I think I know the answer to this. Was there ever any possibility that these two cases would’ve been decided differently, the UNC versus Harvard? The public versus private? I say that basically as a kind of conservative civil association kind of guy. My instinct is basically like Harvard, you’re a private university you do whatever you want, you admit people based on whatever you want. If you want to try to rectify past wrongs using racial demographics that’s fine with you. That said, obviously the text of the Civil Rights Act does say there can’t be right a racial element when it comes to organizations that get federal funding. Right? By way of student loans and probably several other ways where Harvard does get federal funding. Was there ever any sense in which the public private distinction was going to be really important here other than just kind of the legal avenue by which the Court applied the law?

John O. McGinnis:

No, I don’t think so. Because of spending and that raises difficult questions of course for the public private distinction. When the government spends so much money and has so much money, that’s a way of controlling private actors and we could obviously do a whole broadcast on this. I would say that there are institutions that don’t accept federal funding, some colleges and I went to a private high school and they sent out an email saying, “Well, we don’t accept any private spending. We’re going to continue to do in my view racial discrimination.” I’m not in favor of what they’re doing, but there will be educational institutions that will not be affected by… And that reminded me of this. Which is sort of worrying in the sense some of these are very elite institutions. My worry is that once you start going down this road, it changes the institution in other ways other than admissions and that’s a concern.

John Grove:

Yeah, it’s interesting. Most of the higher education institutions that don’t take federal funding usually have a conservative reputation. I wonder if you’ll get a wave now of very left wing institutions not want to take federal funding to evade the Equal Protection Clause of all things.

John O. McGinnis:

The elite universities get so much funding for science that I think it’s inconceivable that they’ll do something about it. It’s not only conservative institutions, but it’s conservative liberal arts institutions that really are not dependent in that way.

John Grove:

All right. Well let’s move on to I guess the second most talked about case of this term, which is 303 Creative v. Elenis. So here, I think it’s probably safe to say this is kind of the culmination of the Masterpiece Cakeshop issue from a few years ago. You have a web creator, web designer who is going to start offering wedding websites and basically tests the waters with the state of Colorado. To see if they are going to enforce their non-discrimination statute against her if she does not offer these for same sex weddings.

John O. McGinnis:

She brings up what is called a pre-enforcement challenge and that’s much easier to do in a First Amendment context. There have been previous cases like that, someone who wanted to hand out hand bills and was worried that a regulation would criminalize handing out hand bills in this context.

John Grove:

So a lot of has been made of this after the case was decided with people saying, “This is like a fake case, it’s fake facts and so forth.” Do you think there’s anything to that? Is that really just-

John O. McGinnis:

There’s absolutely nothing to that and what came down after this case I think it’s really part of kind of demonization of the Court, is something that nothing actually to do with their granting and lower courts. Ever judge who looked at this case, the district court, the three judges on the appellate court, the nine justices on the Supreme Court agreed there was standing and not on the basis… This question was someone actually seemed… And it might have been fake. Said we wanted a… Stewart and someone else’s name who seemed to be male names, wanted a website from her. But that wasn’t the basis of the decision, the basis was any time I will do this I can be attacked. I can be possibly sued and penalized by the state of Colorado and in fact-

John Grove:

And the state said, yes you will.

John O. McGinnis:

Yeah. Yes, you will and the state agreed with this. In fact, she couldn’t have even inquired if these names were quite ambiguous about whether they indeed they was a same sex couple. Even if she had asked about this, she could have been penalized about whether or not you were a same sex couple. So I think it has no legal basis these complaints after the fact, there was clearly standing in this case. Everyone agreed there was standing in this case. It’s important that there be standing in a case, otherwise people will be chilled and that is of course is a principle that applies to the left to the right. The people who have just peculiar views that they’d like to get out that might conflict with some statute. So I fear that this is just an indication that people in an attempt to attack the Court are making absurd and frivolous claims.

John Grove:

It almost seemed like they were upset that somebody wasn’t harmed, right? Or at least from them from their perspective. Gay couples would be harmed by being declined services, they were upset there wasn’t an actual couple that had been denied a service. So yeah, getting to the merits of this case. It strikes me as one of the cases that where the noise surrounding it just kind of distracts from the core nature of what’s at issue here. So of course you have same sex marriage and you have a religious person who’s bringing this. So it’s kind of presented as a culture war sort of case and so you have the exact people you would expect on each side. But at the end of the day, this was decided as a free speech case and it was about free speech not the Free Exercise Clause. It’s one of the cases where if you just change the people around, very simply you come up with so many different hypotheticals about Jewish butcher shops and people wanting Nazi flags on a cake or something like that.

Just change the facts around and you could very easily see different people on different sides of this case. So it’s gotten so much sort of culture war noise. It seems like a case… Honestly, to me it seems like there should be really broad based support for this sort of thing essentially. You can’t be forced to say something and support some sort of message that you don’t believe in.

John O. McGinnis:

Well, I think that’s right in one sense but I may push back a little in another. I think there are two aspects that really do touch on culture war. I mean, I agree that this case was cited under free speech principles. In some sense it was a rather straightforward case under a certain free speech principles. But let me say, there are two things I think in the background that show that this is a deep debate in our culture. One is, and this kind comes across in the dissent in a lot of the commentary. The complaint was these people are commercial, they’re acting through a business. So it’s not like a filmmaker who wants to do some kind of film and not another kind of film. That’s kind of artistic, this is commercial and I think this goes back… It’s a very deep culture. It goes back to the 18th or 19th century. There are certain people who speak in our society, they’re the aristocrat’s. People in trade, well they don’t have the same status and that’s why I think this is really sort of important.

Because of course in a society people even who are in trade have their own views. So I do think that captures something about the case, although maybe not favorably to-

PART 2 OF 4 ENDS [00:34:04]

John O. McGinnis:

Something about the case, although maybe not favorably to people who are complaining about it because it really shows that this is in some sense really trying to help a non-elite, when elite people who run a newspaper, they can write whatever they want, they can have their own views, and I think it’s no doubt you could say terrible things about same-sex marriage in your newspaper. You wouldn’t have to run announcements of same-sex weddings in your newspaper if you didn’t like same-sex weddings. That’s, I think, pretty obvious, that be just core First Amendment values. But there’s the other aspect, I think you have to think about this case as not completely different from hate speech in this sense, or at least the way I think the left may think about this because it is this question you might think and Sonia Sotomayor in her dissent goes on at length about, well, this is about a public accommodation law, making sure that everyone can get goods and services.

But of course that’s looked at in reality as sort of silly. It’s silly in general. Of course, now people are eager throughout the country to celebrate same-sex relationships. It’s clearly the majority view. So it’s not like African-Americans in the 1960s. It’s not like that at all. Moreover, this was about a market for web designs, which of course are by their nature national. There’s no real likelihood you cannot find a web designer who will design you a web… So we might say even we got to the compelling interest, there was no compelling interest here in any event. But what really is here, it’s a question of dignity.

Your dignity is being compromised by someone refusing to recognize your status here. And that’s a lot like some of the hate speech arguments. So in other words, your dignity is being undermined if people say unkind words about you and your dignity. And so in that sense, that’s also a culture war issue. Of course, the left has for a long time been much more sympathetic to saying there should be an exception to the first amendment for hate speech. And I think in some sense that’s the way one side of our divide views this matter. So I do think there is a culture war aspect to it that might explain why people seem so excited about it, when I agree with you completely that on First Amendment principles, so long as one agrees that one doesn’t give up one’s First Amendment rights because one gets money for one’s exercise of it. And of course people do that all the time, but that’s why I think it does represent, perhaps for better or for worse, I think for worse our cultural moment as well as a legal moment.

John Grove:

Yeah, I think you’re definitely right. It seems like we do have a lot of confusion and unsettled public sense about what this sort of public accommodation, anti-discrimination law is supposed to do, whether it’s a necessary exception to the general rule to ensure that nobody is just systematically excluded from society. We have to make sure that you can’t deny people service on the basis of a handful of categories. Or is it, as you were kind of thinking, is it like this sort of fundamental principle of dignity that if anybody denies anybody service for any reason? I remember that was always the language when these Religious Freedom Restoration Act laws were proliferated in the states. You would hear people say this stuff that no business should ever be able to deny service to anybody for any reason.

And I think you hit the nail on the head. It’s because it’s the sense that if I deny my service to you, it’s a hit at your dignity. And so then that leads as I guess to more of the heart of the matter of this case, which was she denying service to gay people or was she just not conveying a particular message and therefore gay people would not be making use of her service because she wasn’t conveying the message that they would want to make use of.

John O. McGinnis:

Which goes also to a culture war issue, which I think it’s quite clear. I think traditionally you would say, well, it’s not your status, but something you want to do. But I think again, the view of the left is this is inseparable. In other words, in any event, it’s still affront to your dignity because your ability to have a same sex relationship or same sex marriage is essential to your identity as identity is always kind of expanding in its category at least on one side of the political spectrum. So I think that’s also what this case represents, is I think that’s very clear from the dissent, which seems to suggest this is really about just being an offense against people who want to engage in same-sex relationships as status rather than the specific thing about objecting to marriage. And so I think that would be the argument that there’s just such a thin line between this conduct and this identity that it’s quite proper not to countenance it.

John Grove:

Right. Yeah, there was a lot of cross or talking past one another in the opinion and dissent. And Gorsuch even kind of called out the dissent at some point for just saying… At one point, I think the dissent even kind of acknowledged that and said, “Yes, nobody can be forced to convey a message that they disagree with,” or something. And Gorsuch was just saying, “Well, that’s exactly what this case is, that you’re almost acknowledging it without recognizing that you’re on our side on this case.”

John O. McGinnis:

Yes, I don’t think… I mean, my view, Sotomayor’s dissent is not entirely successful. I mean, I think, I don’t know, we’ll segue into the student loan cases, but I certainly think Kagan is the most effective member of the liberal block. And I think you see that in that she writes a very powerful dissent in the student loan case.

John Grove:

Yeah, I think that seems to be the general consensus that she definitely… Her dissents carry a bit more punch. Okay, let’s move on to the Moore v. Harper, which is probably the most obscure case when it comes to the law for the average layperson in that the coverage of this was just ridiculously partisan. I know that’s a pet peeve of yours and probably anybody who genuinely cares about the rule of law when you get media coverage that just you read article after article about a case and you have no idea what the legal question is, because they don’t even remotely touch it. And that would seem like this one. There was just a lot of talk about partisan takeover of elections, and it’s a MAGA theory and all sorts of stuff like that. And then ultimately, when you finally dig into it, you just realize, well, it’s a kind of textual sort of constitutional case.

What does this phrase mean? So this is the independent state legislature. You had basically the North Carolina legislature redistricts. Then a state court comes in and says, no, this is an illegitimate redistricting. The legislature then comes back and says, well, the Constitution doesn’t allow the state courts to come in and oversee that decision because the Constitution says that the legislature of the state is in charge of the time, place, and manner of elections. So does the legislature thereof and the Constitution essentially mean that only the legislature is in charge of making this and executives, or in this case or state courts just can’t have any role in that at all?

John O. McGinnis:

Right. So it is a straightforward legal question. Is the Constitution, in using the term legislature, trying to cut out the traditional judicial review, state judicial review, state’s constitutional judicial review? Is that the way we should understand it? Or should we understand legislature in a broader sense as including that context? That’s the real question in the case. You might think that this is a case about how much you should consider context as opposed to looking at individual words. And I think that’s one of its significance for originalism. In some sense, this was the most originalist majority opinion. The Chief Justice talks about that there’s a long history not only of the federal judicial review, but even before federal judicial review, there was state judicial review of its own state constitutions. And so when the federal constitution was created, it recognized that legislatures were part of, had their own constitutions, and they had their own judicial review.

And I think the argument is that given that context, you would’ve thought that if they wanted to cut out the judges, wanted to cut out state judges, the Constitution would’ve been a lot more explicit about that. So I think in that sense, it’s very relevant to originalism how contextually you should look at things. And I would also say it’s relevant to another debate that Mike Rappaport and I are having with some people, other legal theorists like Larry Solum, whether one should understand the Constitution as written in ordinary language or in the language of the law. Because I think in ordinary language, most individuals looking at it would’ve said, well, there’s something to the idea that judges can’t get involved in this. They’re talking about the legislature after all. And Roberts has to go through a whole discussion of the history of judicial review at the time, which I don’t think would’ve even been apparent to people at the time looking at the ordinary citizen at the time, what might have been understood by a lawyer at the time.

So I think one of the most significant aspects of this opinion is the way it does originalism in a very contextual way, in a very legalistic way as opposed to… And I think that’s important going forward in originalism because a lot of people say, well, how could originalism work? After all, the Constitution’s a very short document, but I don’t think that’s the way to look at the Constitution. You have to look at the Constitution as not created ex nihilo, but against a rich background that actually means that there’s a lot more there than just these, I don’t know, 2,300 words brings in a whole Anglo-American tradition and context in which those words are set and therefore that precise-ification allows answers to a lot more things than you might naively think. So in that sense, I think it’s an important case.

I should note that even there though the Court said, given that it depends on this idea that we’re putting in this context of traditional judicial review, federal courts can still review the state’s court’s exercise of judicial review to make sure that it is that, that they’re just not making things up because that’s not part of judicial review. And that’s sort of interesting as well, right? It suggests of you that you can’t, at least the Court seems to me strike against unfettered living constitutionalism because simply making things up or saying this is a great idea, this is a bad thing the legislature did, doesn’t seem to be acceptable according to the accord here. And there seems to have to be some rooting, at least in its precedence or at least in its text. So there seems to be some idea that judiciary has to operate within some substantial constraints, which then the federal judiciary will review.

John Grove:

Yeah. It seemed to me that for the most part, it seemed like… Of course, there was a partisan element of here that Republicans were the ones bringing this claim about independent state legislatures. But it did seem like when conservatives took a side on the case, it seemed like most of them supported that independent state legislature view. And I got the sense that it was mainly out of a sort of instinctive skepticism of courts coming in and looking at redistricting things because courts do have a tendency of just making up criteria and then applying it to redistricting things. But I kind of agree with you. When I read the opinion, and I was pretty convinced by the majority that it was a hyper literalist view to say that the legislature thereof means that it’s just take the legislature out of all the other contexts that it usually operates in. And you’re right, what you said, if you’re going to do that, it seems like the sort of thing you ought to specify if that’s what you’re doing.

Okay. One other case we should talk about then is the student loan case, Biden v. Nebraska. So this has to do with administrative decision-making absent clear statutory authority. Also, had interesting standing questions too. From the very beginning it seemed pretty clear that this was a case that could hinge largely on whether the Court believed that the states really could show some real harm. So before we get to the merits, just talk a little bit about that. Missouri has this weird relationship between… Or I guess it’s not a weird relationship, but it’s a perfectly normal relationship, but a complicated relationship so that it used to show harm to the state of Missouri with this Mohela Company that many of listeners are probably familiar with because they probably make payments to it.

So where Mohela was created by the state of Missouri and it manages student loans and it’s of course going to be harmed, its revenue is going to go down because of this decision. And so then Missouri says then, well, then that is a kind of incidental harm to the state of Missouri because Mohela is doing a public service that we established it to do. Do you think the Court got it right on standing here? Did these states show a real harm?

John O. McGinnis:

I think the Court did. I mean, again, standing is very complicated, but I think the Court, and it’s very precedent driven. Again, it’s not an originalist decision. It’s not obvious to me how far standing doctrine is well rooted, how far to what extent it’s rooted in the… I think the idea is that it is part of a case or controversy, but there certainly was I think a case or controversy. And there seemed to me to be sufficient precedents for, in some sense, collapsing state entities into the state itself to allow standing to go forward here. That was my impression from looking at the precedent.

John Grove:

Okay. So yeah, in this case then, this has been a major theme for the past four or five years has been this question of reigning administrative agencies. Administrative agencies, making decisions on their own, and then sort of searching around for some sort of statutory authorization, finding something that very vaguely suggestive that they can maybe do this and then using that as justification. So I mean, we’ve seen the Court start to question Chevron deference, major questions doctrine. This case, it didn’t even seem to have to get that far.

John O. McGinnis:

Well, it didn’t. So it did use it, though really only to address an argument that this was even if it didn’t meet the exact… We should interpret the language in light of the overriding purpose of Congress. And it seemed to say, well, we don’t think that would be-

John O. McGinnis:

… Congress and it seemed to say, “Well, we don’t think that would be Congress’s overriding purpose, and given the major questions doctrine, we think Congress would make these trade-offs itself. So we won’t want to attribute this very high-level purpose of letting the president do whatever he wants to get rid of loans for whatever emergency he thinks is an emergency. We don’t think that could be unless Congress spells it out, its purpose.”

But with the language, at least when I read it, it was a closer question than I thought. The language was to modify or waive, and the secretary said, “Well, I can modify or waive your payments.” In some sense, though, they said, “Well, modify really doesn’t work here,” because apparently there is a long tradition of the courts interpreting, “Modify,” as doing something not excessively radical. And it seemed forgiving payments seemed very radical.

John Grove:

Yeah. “Modify,” doesn’t get you anywhere at all was the essence.

John O. McGinnis:

That’s seemed quite straightforward. Why couldn’t you say it waived it? And there they have an interesting argument. Well, you are not actually waiving any regulation. They couldn’t point to a regulation they were waiving actually, number one.

John Grove:

Right, it’s because they said you could modify or waive any statutory-

John O. McGinnis:

 Right.

John Grove:

… provision or something like that-

John O. McGinnis:

Or a regulation and there-

John Grove:

It just wasn’t a Statutory provision.

John O. McGinnis:

… was nothing they could waive. Then also they said, well, also you had to actually modify things because you had to modify you were changing what they owed. It wasn’t as if you were giving carte blanche to everyone. You were having all sorts of income requirements, and so you were modifying regulations and rules which still seemed very large.

And so I thought on general, on balance, it was a good argument. On the other hand, the other side can say that waive is extremely broad, and requiring it to actually be attached to some sort regulation, you were not capturing the breadth of the idea of waiving it. That was essentially Kagan’s position.

So I do think it has to be understood as part of this though, however you look at it doctrinally, how much it advanced, again, the other major questions doctrine. I don’t think it was as important as the EPA case in the last term in that respect. It is, I think, an attempt to make sure that the president doesn’t have just enormous authority. Because in our world where there’s so many discretionary grants to the president. For anything you can find some discretionary grant that at least is adjacent to the problem. And if you go down that route, where is Congress? Where is the constraints of having our legislatures deliberate rather than have someone who essentially is a president who rules by decree?

John Grove:

Right, and initially when the discussions about student loans came up, or initially President Biden wasn’t going to do it, and he said, “I don’t have the legal authority,” and then the story kind of shifts, “So I do have the legal authority,” but they didn’t really specify. And then eventually, they find this Heroes Act and say, “Well, we can do it with this,” which is a post-9/11 thing about first responders and people who have been specifically impacted by some sort of disaster. And that seemed like that was a big part of it, the general thrust of this legislation was to provide relief to people who have been specifically personally impacted. And using that then to just make a broad national policy that impacts everybody is just a different purpose than that of the legislation.

John O. McGinnis:

So to bring it back to where I began, it is very similar actually to what happened I think with immigration in the Obama administration. Remember President Obama said, “Well, I can’t actually let him people into the country. I don’t have the authority to do that.” But ultimately he found some authority because that was politically advantageous to him and he had a lot of administrative authority.

And so there’s a connection between. I think the worry that concentrated groups have a lot of power. And the rises of executive authority because Congress is slower, it’s harder to get things through Congress so that there’s a worry in some sense about capture or political… And it’s maybe particularly worrying in our world where because of polarization, what you want to do is energize your base, which may be some sort of concentrated interest groups. So there are deep political background, I think, to a lot of these cases in that sense. I mean, they’re very much cases of our political and cultural moment.

John Grove:

Right, yeah. Well, speaking of that, what’s coming down the road that people should be keeping their eye out for? What do you see when we get together next July, which I hope you will do, what will we be talking about? What are some of the big issues coming up?

John O. McGinnis:

I think next administrative law is going to be at the center of the Court. The question about Chevron, which is the doctrine that allow forces or requires courts to defer to administrative agencies whenever the statute isn’t clear, that’s on the table. But there’s quite a few other important administrative law cases. Another administrative law case which challenges the Consumer Financial Protection Board as not being… which is essentially not being authorized… the funding is not authorized by Congress every year. And that of course also gives this administrative agency a lot more authority because it doesn’t have to come back hat in hand and get some money from Congress.

And yet a third one has a variety of challenges—the one that I’m really watching is administrative law judges can’t be fired by their agency heads, but what about administrative law judges who can’t be fired by their agency heads, where their agency heads can’t be fired by the president? This double insulation is being challenged in a case that has some other interesting issues, including whether you have a right to a jury trial in administrative agencies in certain circumstances.

So I see, actually, the core of the Roberts Court, as much as we’ve been discussing non-administrative law cases, well maybe the student loan case was a bit of an administrative law case, we’ve spent most of the time talking about it. I see that as the heart of the Roberts Court. I see it as the heart because of the great growth of the administrative state. I see it as the heart because I think the Trump-appointed justices were chosen mostly not because the way they were thought they might come out on Roe v. Wade and overturning it, but on their views about the administrative state. And so that’s-

John Grove:

There’s definitely more unity there, even though there’s been unity on some of these other cases too, but certainly it seems like Kavanaugh, Roberts, Barrett, sometimes they go and vote with the three more less justices-

John O. McGinnis:

Right, but I think that is the core is-

John Grove:

… but on administrative law issues, they seem pretty unified, at least from my-

John O. McGinnis:

Right. You might say, again, a political scientist might say that’s because that’s maybe at the core of Republican Party, the abortion issues, of course, there are always fiscally-conservative, but more socially-liberal Republicans, or at least have been. I see administrative law as being what we’ll talk about most next year.

John Grove:

All right, so before we go then we have to talk about who Clarence Thomas has had dinner with though, because that is the talk of the town, more seriously, the response from the critics of the Court, from progressives has been for the most part to question, in the language they like to use, “The legitimacy of the Court.”

President Biden said a couple weeks ago that this is not a normal court, whatever that means. You hear that word, “Legitimacy,” thrown around, say the Court has lost its legitimacy. Part of that is because basically they don’t like the outcomes. Actually probably a lot of that is because they don’t like the outcomes. And then there have been all these exposes suggesting that the justices are being paid off, they’re going to lavish vacations and breaking ethics rules and all sorts of stuff. Seems like an awful lot of these exposes turn out… it’s a little less clear whether any ethical breaches actually took place. And in some of them it’s very clear that no ethical breaches took place.

Where do you see us going in this political narrative in this sort of political backlash against a court that is now more originalist, more textualist, less deferential to administrative state and so forth?

John O. McGinnis:

Well, I don’t think it’s going to stop any time soon. I think you’re right, although I tend to think that it might be wise for the Court itself to have some clear ethics rules in some sense that might be productive of this. But I don’t think that’s going to end this. ‘Cause I see this, again, in rather stark terms, that it’s not only that, which always is the case that one side doesn’t like the Court and therefore tries to figure out ways of impugning the Court’s motives.

I see this as particularly fraught because one way of understanding, I think our culture, is that we have a kind of mixed regime in which… and mixed political parties in which we have sort of business on one side and the intellectual journalistic culture on the other, the reasoning culture. And I think the Supreme Court’s a particular affront to that culture because of course it’s part of the reasoning culture, and yet it now is not on the left.

It doesn’t seem to be… Of course originalism isn’t telling a narrative about the arc of history, which that element likes to talk about. And so I think that’s very troubling to it and is what makes this so combustible. Because I think a view of the left often is, “Well, of course they’re conservatives, but they represent interests, so of course they’re going to appear in the legislature and they’re going to win some elections, because there are these interests out there in the reasoning and the Supreme Court’s the closest we have to a reasoning branch that’s going to move in the left-liberal direction.” This is a total challenge to that.

John Grove:

And maybe one of the reasons they don’t ever want to engage very seriously, at least in the popular media with the arguments and that are actually being made and just talk about it all about as they sort of partisan forces at work.

John O. McGinnis:

And that’s a real problem. Again, looking at political science, there’s a famous essay called The Supreme Court As A Republican School Master, they get out out to… they actually speak in some sense and this becomes a different narrative.

Now, of course, it will work better in some areas than in others. Some areas I think the public’s not really interested in what the court has to say, in other areas that may be more interested. But I think that’s one of the reasons we’re not going to see this change. I find it a little amusing in some ways for all this worry about who’s influencing the justices when for years, the argument on the right was, and I think there’s something to this, that there was something called the Greenhouse Effect. People… What were justices maximizing? They were interested in their reputation.

And where did they get their reputation? Not really from some dinner party. They get their reputation from the way they’re portrayed in the media. They get their reputation from whether they get honorary degrees. And I did a study on honorary degrees and Ruth Bader Ginsburg got an honorary degree from every Ivy League college except Cornell, which doesn’t give honorary degrees. Did Scalia ever get an honorary degree? No, of course not. Despite the fact that he’s much more talked about, his juris potentially much more talked about, even among academics, than Ginsburg.

Ginsburg also, did anyone also worry about this? She got a million-dollar prize. This was not widely understood.

John Grove:

Right, I remember reading about this.

John O. McGinnis:

But this was a kind of academic prize. All the other people who got this prize had written all sorts of books, they looked like academics. Ginsburg had written no books. Scalia had written some books. They didn’t give him that prize. So again, I think their harping on this shows the difference between the elements, the routes of influence. The Left is very happy with the academic route, including the routes through controlling or substantially influencing the reputation of judges, which is much more effective than what’s being discussed in this context. So I think it again, is a window into our political world.

John Grove:

And it seems too, there’s a degree of insincerity, especially when these arguments… I mean maybe the influence pedaling arguments don’t lead in this direction, but certainly a lot of the legitimacy of the Court arguments lead just to the conclusion, “Well, we’re going to pack the Court.”

And so if that’s your answer to it seems like you’re not really trying to identify serious problems. You know what I mean? Conservatives had serious problems with the maybe outsized role the Supreme Court has in American politics for years and years. So you could have serious discussion about what is the proper place of the Court. But if your answer is just like, “Well, we’re just going to put a bunch of our people on and that’ll make it fair,” well that seems like you’re not really talking much about serious institutional questions and meaningful reforms that might be taken. It just sort of partisan banter.

John O. McGinnis:

No, I think that’s right. That would be obviously, I think a serious issue. I think there’s more chance that do elections go in some way that we will see serious debates about court packing. I think that’s what all this Sterman Drag, even if it’s not about very much, it’s just a pointer to that.

John Grove:

Right. All right. Well, John McGinnis, thank you so much for talking with me today. This is a very clarifying conversation. I think it shed a lot of light on these cases and where the Court has been going and will be going in the future. So as always, I enjoyed the conversation.

John Grove:

Thank you for listening to another episode of Liberty Law Talk. Be sure to follow us on Spotify, Apple, or wherever you get your podcasts.