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Chair federal Court University of texas school of law. As work has been published in the new york times, the los angeless times. Has argued before the Supreme Court of feat in and of itself is Supreme Court analyst of 2013 and he lives in austin, texas from going to hand it over to them. [applause] okay, good evening, can you hear me okay . Great. Its great to be with you. Here in his own hometown. Its great to be here. I hit introduction of you but among many other things i did not know that was going to go that way either. The first thing i want to ask you is you sure you do not want to move this conversation to twitter spaces . [laughter] there isth still time. 20 minutes of silence as about right. I wouldy say this is already gone better than last night actually. The night is young. Are you sure you do not want to talk about ken paxton . Yes. S. [laughter] all right. If you have not already seen or read the book let me tell you it is terrific it lives up seat is extraordinary in the book. Its the right book for this moment when the Supreme Court is so much in the news and so much on our minds. We are going to talk a lot about the Supreme Court today but first lets talk aboutut the bok lets begin by defining our terms. You immediately in the book make a distinction the define the sink so we understand exactly or talking about. Sure. The word and must fill me with decisions the Supreme Court hands a down after oral argument after multiple rounds the court hands down today including one largely the clean water act. We think of the Supreme Court at least until recently but we tended to view as the Supreme Court the work of the Supreme Court. The shadow docket is a term coined by a chicago law professor in 2015, basically to describe Everything Else of the Supreme Court does. By volumeng it ends up being almost 99 of what the Supreme Courtoe does is not the merits t docket, but rather these unsigned, usually unexplained orders. And, youou know, most of those e banal. I dont think we would all be here on the thursday night if we were really upset the parties got more time to file a brief in the case. But one of wills insight the book tries to build upon if not shamefully exploit is that a lot of important stuff happens in these unsigned unexplained orders. Increasingly more and more important stuff happens through these unsigned add unexplained orders. So we who care about the Supreme Court whether professionally, personally, or both should be paying more attention to what happens in these inscrutable, often inaccessible rulings. So i was curious after reading the book about the will boat coining of this term. And i went back and read the paper that he wrote in which she coined the term and he explained what he talked about. What i was clearer on as a result is that he talked about two t things. We are talking to on the one hand orders and bowed says one of the problems which are the orders which are but knelt many times they lacked transparency. We have come to expect from the court they at least tell us this is the thinking we see signed opinions, all ofrs that. These orders not visible to us lack transparency. But then there are these reversals, right . Summary reversal set to become part of the practice of the courts. And that is more complicated. Can you talk about those please . Cocksure, i mean i guess the shortest way of describing it as even though we spend most of our time talking about the merits it dockets a. The merits it docket is the exception. It is unusual for the court to resolve a case by writing a 50 page decision. Until you get summary reversals over the court writes very, very short opinions. Reversing a lower Court Without oral argument, without the parties having a full opportunity to brief the case but that is what impels a will to write in 2015. But there are other orders that could produce pretty dramatic effects. Here in texas, right . It was an unsigned, mostly unexplained order it late at night on september 1, 2021 that basically cleared the way for sb8 for the six week apportionment to go into effect. It was an unsigned unexplained order just last month that actually kept in place tinationwide access, part of medication abortion. These orders can come in different shapes and sizes. The critical point that the book tries to influence you is there action the bulk of what the Supreme Court does. An increasingly their stuff happening in those orders thats a monumentally important in ways that we really had not until the case of publicly appreciate. Tht were talking about 1 . What weve seen all our lives is 1 of what this the visible part of the iceberg is teeny tiny. But theres whole submerged part. Well and that is perfect because it wasnt the visible part of the iceberg that sunk the titanic. It was the submerged part. Right. And and so. Right. The the the have i should have put that in the book of course. But. Right. But thats i mean that thats exactly the metaphor which is the book tries to do to different things. The first part is to say, hey the stuff below the surface is really important. Right . Lets all spend some time understanding it and developing it and figure out what it is. And then the second part, where i think they get into a little more trouble is when i said, oh, by the way, once we, look at whats happening beneath the surface the last five, six years, we see lots of problems. Look at the impact. The i want to just stay with boat for one more second and talk about concept of emergency relief when. People seek emergency relief that often results in a decision that comes through the door of the shadow docket. What constitutes an is really the point right its totally emergency is the point its totally subject to interpretation. Talk a bit about that. If you think about the flow of litigation before it gets to the Supreme Court hase gone through litigation, federal courts. Emergency relief is its going to take four years for the case toto get through the Supreme Court. What is the status quo going to be while that happens for now. Is it going to be by the trial . Judge that would vacate the limit is that going to be the law while it works its way through the court or is it going to beso frozen . Thats where we talk about the emergency relief but the judicial emergencies from the perspective of shortcircuited in the normal process. Because of the implications of early in the lawsuit going to or nota affect. In this book you layout along thee subject matter lines areaf the law where the shadow docket has been important and may be the one i want to start by asking his Capital Punishment as it relates to Capital Punishment in the shadow dockets but the part that moves the shadow docket if we think about in Texas Execution in some context the quintessential case for emergency relief. A prisoner on death row and to his or her challenges for the convictions or the sentence with the method of execution. Theres not going to be enough time. Historically that was the point. Ited also turns out it is the Supreme Courts reinstitution of the Death Penalty that precipitates how they handle all applications. If you had one of the supplications you would go to the socalled circuit judge, the one of the nine with the geographic responsibilities. Rightyo now that is justice ali. We will talk about alito or a little more as the night goes on. Yes, we will. But the circuit job is to basically ask for the proxy for the fullcourt and what that meant the circuit justice by themselves sometimes in the local court. That meant there was a modicum of transparency. No one would confuse the justice for some kind of broad pronouncement and that is the model and the concern about following that model in capital cases that pushes the courts in the 1980s to start remotely divisive emergency applications but because it is the fullCourt Without the argument, without the breathing and without an opinion that happens in the early 1980s. The 80s, 90s and 2,000 so it pushed the court to take the steps and we didnt tend toyo focus on the procedural moves because everything was unique to the Death Penaltys case that was over there and one of the things that happened the court starts taking the Death Penalty specific jim starts applying it to everything to the trump immigration policies and covid measures, the Congressional Redistricting so that now these procedural problems. s at the public is in the dark who decided, whos in agreement and unless you have a public dissent. Elena kegan lost it. We expected she would oppose the decision but largely this is the exception. As we know the vote in the case is 54 because we can do math and the four justices publicly dissented we could figure out but what is striking about the case is not just the dissent where she says at the end it is inconsistent. Of what she objected to she said this is out of sync completely in t conflict. She was going after the procedural. September 2021 is the end of a ten month period where the court had been more aggressive and active in intervening on the shadow docket of the applications. In those cases often times running over procedural obstacles and issues that now is the exact same 54 majority saying our hands are tied in these questions as though we can step in to protect them. In the way the only through line for the case not any sort of principle but the last thing to say about that is she disagrees with the conservatives. The data didnt say why but 54. One of the points that it helps to underscore his they are not strictly partisan is one of the most repeat players that criticized the majority have been the conservative chief justice through the dissent in the case who defended in the alabama redistricting case and april 2022 the dissent would say the same thing. I am john roberts. Ive not changed my strengths. Im sympathetic he sees the courts legitimacy and credibility is negatively impacted by these. And using the sort of emergency application is doing things the way they are supposed to be done with full throated deliberation. So incidentally is the religious liberty there seem to be a number of cases which the religious liberty matters are e decided in the shadow docket. One thing that i thought, and i knew when you said it but i didnt think about it before was a lot of this is trump year. I know that you say the shadow docket goes back to 1980 or 2010 2010in the biblical moment. What changed it wasnt just that it was the Trump Administration versus the Obama Administration its the Trump Administration took an aggressive approach to this particular procedural maneuver to seek the emergency relief than the Supreme Court that none of the predecessors on both parties had tried to slow this one data point across the 16 years of the administration, the government goes to the court eight times so once every other year. Seven of the decisions have noes public dissent so seven of the cases there is no obvious partisanl ideological balance like the government is saying help us out. So that is part of the course if you look at the average. Trump goes 41 times in four years and the justices acquiesce in 28 of the cases and almost all of the 28 the book tries really hard in chapter four to suggest the beginning of the recent shift the justices were not leading the charge. The charge is led by the Trump Justice Department but thereer were all these opportunities for the courts to push back and say this is and what these kind of applications are for. This isnt what we should be doing and instead they kept saying sure. How much of this is the court and how much of it is this court. You cant talk about the trumpap years without acknowledging during the four years he appointed it is the court because the four years. The way the courts operate, this isis you writing in the book the conservative majority is used to obscure procedural orders to shift the jurisprudence to the right. So is that, two parts to the question. Is that whats going on here . Trump appointed justices were open to the idea of the procedural trick being used and therefore this is the way it goes or am i missing something . The problem is we dont have the account her side of the argument. We dont know whether the majority of the democratic appointed justices. If there was something specific not about the conservative judicial philosophy, not about the conservative approaches to the constitutional interpretation but about these particular justices that meant that the brakes came on when brett replaces, one of the big things that happened is he is not merely as pendulum swinging as kennedy so the other conservatives can be more confident about what hes going to do and then when Justice Barrett replaces Justice Ginsburg between that is with the more liberal justices so i think part of it is who they are but i dont want to lose this point. Part of i it is to some of the outside of the book stuff the symptom of a broader disease which is how remarkably end in defensively unaccountable the Supreme Court is and that would be true regardless. So we might not be as troubled by the last of the accountability but every day of the unaccountability that wouldnt change the fact that it is in ways weve never seen before unaccountable to congress and problematic respects are not necessarily partisan. But i want to push you on this question of the court versus this court. At the ideological makeup of the court in favor of the liberal justices and they are doing the same thing is that a problem, do you write this book . How much of it is they are doing this and it sucks that they are doing it but the result from them doing it i really dont agree with. If it is the right question. Listen, i would still write this book. Would it be doing so well it would be published by an Academic Press in the University Bookstores and i think there are plenty of folks by the director of the bottom line and that is perfectly fine. Im not one of them. The book tries to point out examples and cases where the court reached what i thought wa the wrong bottom line but through the right process so the cdc moratorium case theres another policy that guides on the docket where in august, 2021 the court mixes the moratorium. There was transparency at least in the majority opinion. The Alabama Association of realtors, heres why we think eachie of those are satisfied. I disagree with however many justices interpreted the statute, the Public Service act that was the statutory basis for the moratorium, but they did it right. They provide a rationale. We know why it blocked the moratorium. Contractvy about with the vaccie mandate case but this is a case where the federal judge in texas blocked the Vaccine Mandate and the Supreme Court basically but the mandate back into effect without any explanation. I like that result. I think the military has the power to require to be imvaccinated but theres a realy important legal question whether the newfound interest in and expands provided the military forsi the 1980s era decision that this is the military gets deference even where the religious liberty is concerned. Is that why the Court Granted the case, was there a procedural problem . I think that is a case where theres the right result from my perspective, but the wrong process. Why cant they show their work every time . What is stopping them from doing it . Justice alito would say and has publicly said it is not a choice just as we are often writing against a deadline. Do you by that . I was about to get there. So, that is true but not in anywhere near the majority of the cases. So he can point to examples where the order was going to go into effect at midnight. The capital cases, the warrant says we have to 6 01. There are cases where thats true that the case where 11 58 p. M. , they missed the deadline by 23 hours and these other cases the navy seals Vaccine Mandate case, know there is no clock. Plus they have the ability they can issue what is called an administrative stay that is a temporary of three is to give them time to write so its not that they cant write or they dont have the means to buy themselves time to write. Just the court is not of the few that its undergo an obligation to write in these cases. But its such about a look and they know its about look when a decision like this is released without transparency at 11 58 at night. You couldnt make it look like you care about people, regardless your intentions were your work doing it that way and they dont seem to care at all about how they look. Roberts talks sometimes its really important in court. We have a duty to protect the institution. No, they dont seem to act that way at all. I think the question is which they are we talking about. Who is the villain here . Who is responsible . We having an answer you havent thought about this, who is the villain, who is responsible fr this . I think the real villain and this is too easy to say back to the court being unaccountable, theyve taken their hands off of any meaningful check in the function for the first 200 years of our history regularly called all of these to keep the line. Dont bother coming into dc we are not going to have it this year. The legality of reconstruction, no, go home. Before Congress Gives every federal judge a pay raise but gives the Supreme Court justices a very tiny pay raise because they were mad. Ri so there are those to keep the court from veering into these deeply problematic holds that its not pulling anymore. So youre saying if congress wanted to effectively end the use of the shadow docket . But i want to stress because i think that this is the point that Justice Alito didnt in an accurate summary of the critique the problem is in the shadow docket. They are not inherently nefarious. Its how the court is using it. Are there going to be the states like texas they hand down rulings that are going to precipitate. Its not in the shadow docket but its what is in the case that when the decisions are unreasonable, when they are inconsistent, you get this problem of depriving the court of i the principal mechanism by which it is supposed to persuade them judicially as opposed to politically. Historically the court to set our legitimacy comes from our ability to provide principal justifications. We dont expect you to agree with our principles. We expect you to agree they are principles and when the court is not in the provided principal and when the best three line explains why the party is winning or losing it is a red state and a democratic president that is the problem. When it appears to be a parent talking to a small child, the answer is because i said so with no explanation or justification it does have the effect of undermining. Hispanic especially when there is no obvious reason why the parents said so here. So we have a few minutes before we go to questions for the audience. I want to move the conversation off of the santa talk about clarence thomas. I know he is in the book but i want to talk about something not really in the book because this happened after it was turned in. The excellent reporting on the conflicts that they identified and the gifts provided to the website allege it though there hasnt been any dispute about this by the texas billionaire dallas to Justice Thomas over the years. What did you think about the reporting when you read it and what did you make of it as it relates to the business of the court and should it shake further our faith and confidence . The small point that is worth saying it says a lot that it was pro public like why isnt the reporter for the times and Washington Post, why did it take this excellent but a spirif not necessarily classical mainstream organization to do the legwork here and i think that is a reflection of this broader disease of sort of thinking about the court has a as afunction of the sum total oe docket. To that the Supreme Court as it t,is reports on the court as the court holds itself out to be in ways that we wouldnt think white house reporters were congressional reporters would report on congress, so it isnt just a failure of ethics but investigative journalism. Yes but i think it is also a reflection on the broader problem the book tries to starto pulling us back from which is how we talk about the courts and that starts with the people on the front lines of talking about the press court and i say this is someone that is part of that. That is sort of the low hanging fruit and then a great piece about this for slate last week thatte this should happen every ten years about why we cover the court the way we do. Regardless of the specifics, i wrote about the resignation of the justice in 1969 and he resigned over i dont think this is remotely inaccurate than what they purchase it happened in the Justice Thomas case. So one sort they got in a lot of trouble for coming hed already paid back before it even became a public handle. Earl warren went to him and said you have to resign for the good of the court and if you dont resign, nixon is going to go after you, douglas might be next. This s is a political moment. I think the other place where the current ethics dovetails with what im trying to do in the book is the same disease from the perspective of the advocated responsibility. So, when john roberts is invitd to testify by the chair of the judiciary committee, roberts goes back and says actually it would raise the separation of powers concern and interfere with Judicial Independence where i voluntarily come and testify. The investment in the court that characterized the first doesnt exist anymore but that is profoundly historical and so theres the notion that congress couldnt exercise meaningful oversight. Its totally belied by the historical practices. The obstacle is not the constitution or the separation of powers, its is the current politics. Asyou said around the time yu wrote on twitter the independent judiciary doesnt mean unaccountable. Through his lawyer basically take a long walk off a short pier imor not going to provide you what you asked for in the name of the public being better aware of what actually went on here. If we can tie it backha to the constitution for a second, what struck me about the letter, what struck me about the letter isur the suggestion that congress has no legitimate purpose for anything they may or may not have given to Justice Thomas. But if they express power to impeach justices like maybe we dont all agree that the stories, the revelations give rise to the Impeachable Offense but the notion that congress lacks the authority to ask the question and investigate whether individual justices have engaged in the conduct is both horrifying to me as a separation of powers but also a perfect illustration of the moment that we are in. And as a textbook person myself to make it generic the part that is striking to me is in the case where congress made the decision, there was a mechanism on together side of that regardless of how that came out called which the person in question could be held accountable. There is no mechanism for all of us to weigh in on clarence thomas. And this goes back to the tweet of mine that you mentioned. Local are the king ofio school twitter. [laughter] you are extremely online, he is not. Mine are not confused with of the university of texas. Thspeaking as an individual. The point is we teach this in the constitutional law practice and its gotten lost on modernizing the years which is we broke from the british practice by creating an independent judiciary, and the independence was a critically important part of the divide. But as hamilton writes and 78, the court is supposed to be the least interested branch, it doesnt have an army or will it only has judgment, and the judgment depends upon a modicum of Popular Support for the notion that its somehow illegitimate for that very source to exercise its power to be critical of the court and to insert leverage against the court is so fundamentally anathema to that balance. Theres something about this controversy as opposed to one of the justices because thomas has been the least visible accountable audible justice, a particular conundrum for anybody watching the court because hes kindex of done anything he can o exempt himself. You can point to the less problematic by Justice Jackson and book deals that the justices get and we dont that are problematic on someone whos book im going to like or im going to throw out the window, so again this is quite identified as progressive but im trying to tell a story that shouldnt be a specific view of who is in power and who is not about how it should and ought to be in the Congress Interest to rain in the courts. One last point and this is probably the weirdest one that you might never have thought youd think about before tonight, we started with a merit docket 57 cases on the docket, that is crazy low historically. Its going to be the fourth term in a row. The last time that happened you might be saying im fine with thedi court deciding but they ae not deciding less. They are deciding different cases. So why has that happened, why has the courts docket shrunk because no one is telling them what cases to take even though for 101 years the court had no discretion over the docket. 1988 congress used to tell the court which cases to hear andow that was part of the story how the branches pushed against each other. R. You identify yourself on social media as progressive. Let us note the person that coined the phrase the shadow docket was a conservative. Which i get in trouble for because people sayt. That im taking that back. He was, for me this isnt about left or right but its about transparency and accountability or i think that is the challenge for People Like Us and that challenge the book tries to surround is to tell a story everyone should be bothered by the institutional behavior of the court even if you are more favorable to the outcomes thats emerging from the behavior than perhaps i am. But you need to be procedure. We will go to questions now. We have microphones, hand to stop as many as time permits. We will try to be fair. [laughter] why dont we take one here in the front and then we will go to the back. You mentioned a moment ago with the revelations but curious if you could talk a couple of times about the role of the press and the compelling example that you make in the sort of media consensus about the first term of not that much has changed and you point out is sort of contrast between the voting on the shadow docket and im just curious to hear more about itsee hard not to feel te media has advocated. The short version is i thinko the media i do see someplace on the press corps, but keep in mind the press corps has to cover the courts and part of the problem here is the Court Conditions access in ways that this incentivize folks that are in the press corps from defining those conventions. The way that it comes out is incredibly and narrowly narrowly circumscribed. There is one not one per justice and theyve got this remarkable we will tell you when we feel, like it approach to the relationship with the press corps. The court is more part of the problem because the court itself demands that it comply with these norms. Is it to the point that the journalist got a little too aggressive that person might be denied access . They are doing what the justices are telling them to do. Part of the issue here is i think the court itself is so not used to being treated like the other institutions because of the notion that the court is above and the more that we come to accept and appreciate the court is actually a part of the fray the more the court ought to act like it is from that perspective as well. One other point on this, the court has finally reopened to the public fully this term in response to covid, but the good news they are still Live Streaming of the oral arguments and the bad news they wont lifestream the opinions that might mean that the actual audio of the justices handing out the rulings, the things that matter as opposed to the arguments where Justice Breyer is on the court, the things that matter this is an institution allergic totr the basic transparency andi think they have a tough job. How did the dogs decision which somehow didnt getde the pulitzer, how did that change the relationship between the media . It made it even messier. There are sources that have dried up and i think that there are folks inside the building that have become much more paranoid about talking to anyone outside of the building. So it has complicated the story as opposed to one in the back and then we will come over here. My question relates to congressional oversight. Congress hasnt exercised its power to legislate. What is the likelihood that the supremesl court would then reviw the legislation, say that its unconstitutional. Talk about it in the book. It is a great question the short version is if it is legislation that is doing things like 150 years ago congress did all the time the court would have a hard time striking it down so for example one of the ways congress exerted power over the courts, if it made of the justices rise and go out on the road hear the cases, what if congress brought that back . There would be historical precedence for that. Where the legislation looks newer and like theres less precedent, i think theres a risk t but if the court is striking down legislation designed to make it more publicly accountable would congress have accomplished its purpose . The politics are so that its going to be s hard to see how we got there but i think that either result, either outcome is probably good from the institutional design and health perspective. Lets go over here, please. Thanks for being here tonight. It . Recognize that your argument is not about partisanship and i wonder if you could speak to when you say above the fray, the kind of understanding they ought to not be that political and yet there is this long history of justices whove been for governor or various things like that so i wondered if you can speak to the fundamental misunderstanding about what it means to be a justice and [inaudible] i had a longer version in the story but my editor made me take it out. Being the running mate in 1944 if you just play the forward, within i was scared of being president its only because they flipped the name of the piece of paper so trumans name is first. The reason why, he was still in advisor to lbj when hes on the court so i think that we have probably the notion that the justices are not political actors and its good but theres political and theres partisan, and i think theres a distinction between the two things that we blur out in recent years partly because the court itself has spread out. Before 2010 there was never a moment and the courts history where the party of the president appointed the justice not on the audiological you had liberal republicans and conservative democrats its always 2010 that we have this and i think that has consequences of the justices that ought to be responded to and instead they just lean into that. Or atat least acknowledge. When roberts does think in trying to preserve the institution kind of like to agree that the institution shouldpe be preserved. He givesfo that speech to the American Law Institute with, multipartisan body, sort of a group of lawyers versus the conservative justices going to thee Mitch Mcconnell center to complain about being criticized for being partisan. So therere is the extent to whih they are their own enemy not rebutting. We know that every four years they candidate campaigns either by winking or just acknowledging out loud that this is about the court as much as it is about the president. Theyha can do math and see that you have a justice that is x number ofyearsold. The message implied or explicit is elected me because im going to fill the seat. T it doesnt mean with a person for this to my side of the party that i can get through the senate. Butt still supported by eisenhower because eisenhower wanted a state court judge who was a catholic. So, that is the shift in behavior that is deeply rooted in the contemporary politics that the court has two and has not responded to. I have a question one is about expanding the size i hope somebody will ask that. I will do a spin on your question because it relates to that. If we have more than nine on the Supreme Court or justices with the shadow docket to do you think that it would be darker or later . I think the short version is with more justices would come more possibilities for things peer obscure imaginations. That the more judges you have the more you have weird things happening but i will take the chanceti to answer the question. I perhaps its against expanding isfor two reasons the first is very real politics. Whether they were in control of both chambers of congress and thee presidency then the next time they were in charge there would 6 be six but the democrats would y add 17 with 51 justices and no the legitimacy and if you want to destroy the court, great. Im here to praise the court, not two. Of the otheris problem that was again, this is what is consistent with what ive been saying for thest last however lg it is and who the justices are and how accountable they are but if you have four justices who we might like it doesnt make them more accountable. To me we fall into a trap when we visit the conversation about the justices, so we can change with the bottom line is because what weve got here in part because of the institutional relationship breaking down, would you be open to a shift in the way the justices serve so that rather than being lifetime appointed, there were retention or another mechanism that would give some form of accountability . In the world in which you can get something through both chambers and three fourths of the states to reform the Supreme Court yes but again that would be fairly far down my list of reforms. To restore a much healthier much more accountable dynamic between the congress and the court weac need a congress that is part of its job and the institution and not just partisan. I have a brief question but first i understand youve been on the road for a long time. You are finally home and maybe its time for a small comment. I want to make sure that you are coming back. Thats up to him. We want to hear back. I just want to make sure you know that. Its like cats and dogs living together. To the Supreme Court, do you find that it gets a little bit beyond the book a little bit is ironic and that may be to soft of a term that the Supreme Court now is in taking apart the Administrative State in the simplest terms saying congress is not providing enough guidance to the executive . Here you have the Supreme Court the heart of your objection to the shadow docket is that it doesnt provide guidance. There is a contradiction. I dont think its a contradiction. I think ofri itt on the opposite side of the coin that is the court has claimed power in the administrative regulation by suggesting congress has to speak more clearly and has said over and over again if it is political significance congress has to authorize the program. We see that coming soon. That is a similar move to me to say you havent done these things whereas again it is a power in both directions and its capitalized on what the justices know to be true which is the current Political Landscape is one in which theres no appetite for the Institutional Reforms either on the substance for example to restore the epa authority or to restore the sort of legislative control that we saw historically, so i think those are deeply consistent, not inconsistent [inaudible] [laughter] do you think that it affected what happened and why do youer think a chief Justice Roberts never followed up on his investigation . Or my theory has always been working with a secondgeneration that a justice leaked the draft to a i friend not expecting it o become public and it was the friend who made the decision to sort of send it out into the world. But you would acknowledge the problem wasnt a friendd of sending it out into the world. The problem was the justice leaking it out. That doesnt make it right. Agreed but it makes it less extreme. But what we dont talk about is the week before, the wall street journal ran an editorial talking about how there were 54 and there were efforts underway to try to intimidate for sort of soften things. That seems a very well sourced given what followed. It seemed at the time. It doesnt account for how. Theres a story in the Washington Post that specifically identifies, quote, lawyers close to the conservative justices reporting on what was said in conference. A conference where the only nine people in the room are the justices. So unless you snuck a listening device in, which by the way that would be pretty cool. [laughter] so the story to me is not just who leaked it but why we dont talk about the clear leaks surrounding it. That would have been on their own is some of the most remarkable out of the court in recent years. So the question about chief Justice Roberts sometimes you dont want to find out. Soth there are two features of e investigation. One is the chief was going to let the executive branch investigate. There was no universe that she was going to invite the fbi to the internal workings of the court and the second is that its not in the universe where if he had suspicions about where it came from especially the suspicions were relatively higher in the additional chart he might have been inclined to not push the to have those suspicions verified. The a book ends a lot with the chief because if fascinating character, hes the most unpredictable in theou way of te topic of the book. Two things are true. One is he does not have as much power as he might think he does just because hes chief. Hes not the boss of the other eight justices, something i think didnt, we may not have thought that between 18 and 20 when he could do everything he wanted, but number two, he has a bully pulpit that he has used with four and where i actually think one of the questions why isnt he using it more right now, because i have no trouble believing that he sees a lot of what is happening right now as a Serious Problems with the court in the long term. Whether that is because of it getting in the way of the substantive agenda or whether because the institutional views are actually altruistic. He could say more and be more public and frankly this is not a suggestion but if he really thinksan the court needs to be saved, he could resign and let it democratic president with the Democratic Senate bill his seat. So i think that he is a complicated character becausethe is not doing those things even as he is complaining about it rightly, these institutional erosions. I want to ask before we leave here do you agree with the promise that the person that leaked it is higher on the tachart . Because you remember the chart immediately was it is a staff member and a staff member to be liberal justice who was mad. I would say did you talk to folks that ever worked inside that building, and i havent but folks that clerked on the court and worked in the court, they would almost all say that the go up the higher on the totem pole because a clerk that is bound to have been is risking their entire career where the justice who was bound to be would be invited to give speeches at the banquets and flowing on private jets to them. On that upbeat note, we are going to stop. [applause]

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