>> what a term it has been. both inside and outside the court. i won't even attempt to give you a summary. you are not here to hear from me and there is too much to talk about but we have four excellent panelists. each of them -- i do not have time to give them the introductions they deserve, i will give them short introductions. what in response, my promise to them as i build keep my own questions very short. it is to maximize their time and the audience's time for questions. we are joined first by professor joel era cf, assistant professor at the catholic university of america where he specializes in constitutional theory. he also -- cooper and kirk, codirector of the project on constitutional regionalism and the catholic intellectual physician and a nonresident fellow at the american enterprise institute. he graduated from princeton and harvard law and clerked for judge scanlon on the ninth and samuel alito at the supreme court. we also have sarah harris. she has argued and won three cases at the supreme court. >> class but not least, the supreme court correspondent of the wall street journal who has previously served as a reporter for the los angeles times and a contributor to new minutes other publications. he has written about the trials at guantanamo bay in the life of times of squeaking from. he has delivered the john field sims memorial lecture at the university of mexico. university of new mexico and served on the berkeley, california review commission. he is a graduate of harvard and uc berkeley law. please join me on the podium. [applause] >> it would be very much hiding the ball if we started anywhere other they on the supreme court's biggest term, dobbs. i'm going to kick it off to talk about dobbs. >> thank you to the heritage foundation for inviting me to participate in this panel. i agree that this is the appropriate case to kick off our discussion. i think it is fair to say that dobbs versus jackson women's health is the most important supreme court decision since brown v. board of education, which is saying something. especially when you take into account the combination of both the legal importance and moral importance, regardless of which side on the issue you come down on. legally i think the case represents the beginning of potentially a new era in the supreme court jurisprudence where they will be reconsidering major cases from the new deal, warren and berger courts with the chief justice and justice kavanaugh pumping the brakes on that. morally, this implicates one of the most important and fraught moral questions in our society. getting into the details, as you know in 1973, the supreme court declared there was their right to abortion and held there be no prohibitions on abortion up to the point of viability. in 1992 in kc, the supreme court reaffirmed the right to abortion and the viability rule. in this case, dobbs versus jackson, the court was dealing with a mississippi law that banned abortion after the 15th week of pregnancy, with some exceptions. that unquestionably bands abortion before the point of viability and was directly contradicting casey. it was clear to sustain the mississippi statute, the court would have to overrule roe and casey at least in large part. the lesson then was, would they overrule roe and casey in their entirety? the solicitor general supporting jackson women's health, arguing there was no middle ground. either you reaffirm roe and casey in their entirety, or they have to be overruled because the viability rule is essential to the whole case. so, the supreme court overruled in their entirety. in the opinion by justice alito joined by thomas, gorsuch, kavanaugh and barrett. the chief justice writing to concur only in the judgment. the court began its analysis by asking, was roe rightly decided? is there a right to abortion in the constitution? which is a question the casey court had overlooked in its analysis, but dobbs decides to confront that question directly. the court first notes that the text of the constitution says nothing about abortion. that means if there is going to be a right to abortion, it would have to be an un-enumerated right, an unlisted rights not critically protected by some other provision. in casey, the court had pointed to the due process clause of the 14 at -- 14th amendment and said the substantive due process doctrine protected a right to abortion. the court had said in a case called bux berg that the way to identify unenumerated rights under substantive due process is to ask whether the question is deeply rooted in our nations history and tradition and essential to the concept of ordered liberty. the dobbs majority asks, is the right to abortion deeply rooted in our nation, history and tradition? and concludes the answer is no. after serving centuries of history, the court comes to the conclusion that up until a few years before roe, there was no legal authority. no state constitution protected it, no federal court had recognized it. >> that leads to the question, if abortion itself is not deeply rooted, how about the right to privacy is deeply rooted in our history and tradition and abortion as part of that? that is the argument that jackson versus women's health made. the supreme court rejected it, saying that even if privacy is deeply rooted in our tradition, abortion is fundamentally different because it involves the taking of potential human life. that distinguishes the right to privately -- privacy. having concluded roe was wrongly decided, the court turns to whether it should be overruled. i am not going through the factors now, i will point out two key parts of the analysis. first, the court emphatically rejects the argument that it should take into account public perception of the court in determining whether to overrule a precedent, which casey had taken into account by considering what the impact on a courts legitimacy would be in the eei ease of the public. -- in the eyes of the public. second, the court held that it does not matter if there has been no factual or legal change since the original decision you are overruling, if that original decision is egregiously wrong. the contrary view was the position of the defense which argued that because there had been no -- since roe and casey, there was no basis for overruling them. the majority says no, just like plessy versus ferguson should have been overruled to the day after it had been decided, same thing here. the court overrules roe and casey in their entirety. and they hold that the rational basis test applies to determine the constitutionality of abortion regulations under which any conceivable rational basis is sufficient to sustain a regulation of abortion. under that standard, it is hard to conceive of any mainstream abortion regulation that would be held unconstitutional bull unless -- on -- that leads us into the concurrences. justice thomas concurs fully with the majority opinion, rights separately to say that the court should reevaluate its substantive new process of jurisprudence including the privacy cases that had been distinguished either court earlier in its opinion. that of course is seized upon by the defense to say that -- threatening the rest of these casey it's, but the concurrences by the chief justice and justice kavanaugh shows the court is probably not going to touch those right to privacy cases in the near future. indeed justice kavanaugh underscored he does not believe the odds -- and stevens over -- he would have stemmed -- >> the dissent is a joint dissent by justice breyer, sotomayor and kagan. although the style and tone of the dissent makes me think that justice kagan probably wrote most of it. that is my guess. the dissent makes three main points, which i have alluded to. one is a methodological point, which is to dispute that we should only identify unenumerated rights based upon their history and tradition, as opposed to living constitutionalist approach to interpreting the constitution, identifying unenumerated right. the second is identifying the majority is too cavalier in its treatment to starry decisive's. the third is that the dobbs opinion threatened the broader fabric of constitutional law emerging out of the warren and berger hordes. the bottom line for the dissent i think is that the dissent agrees that this case is not just about abortion. as big as that would be about itself, it is not just about roe and casey, but this is a case that represents a larger clash about approaches to the constitution and constitutional adjudication with the majority taking a more originalist approach and to the dissent taking an approach that is much more consonant during the war in and berger areas. >> i wanted to open up on that point to the panel. we have heard a lot in the news about things like dobbs signals the end of access to contraception, signal the end of gay marriage, interracial marriage, some have gone so far is to say that dobbs heralds a return to segregation, and even a revival of lochner. what do you make of these? sarah? >> i think that -- the concurrences, there are certainly not -- courts for going that far. the interesting thing about the reaction justice thomas in particular is in some ways how little -- of his concurrence. his concurrences reflecting his long seated position that there is no such thing as substantive due process in the constitution. the other thing he is saying is, if you can point to some of these rights in some other part of the constitution, grounded in history and other aspects of it, please. come forward. i do not see the court saying it is open season on everything under the sun. >> kevin? >> one thing, you have to have a law that would outlaw contraception, or a state that would refuse to recognize same-sex marriage for you would have a case. there's social and political prerequisite before you even have a chance to re-examine those cases. but, taking a very narrow view of the individual rights provision, as the court did, it does ask questions like, why is lawrence versus texas right? what would be the reason that is right if roe and casey are wrong? what level of regulation of private intimate activity is acceptable? several years ago i listened to the oral argument in griswold to see what they had been saying. i remember the discussion the justices were having with the lawyer of the state of connecticut about the rationale for the contraceptive man and what implications it had. first, what is the purpose of this band? do you want to increase the population of connecticut? what is the reason? they ask questions like, if you can outlaw contraception, what level of regulation can you woke apply? can you require men and women to live separately? can you limit marital activity to one day a year? they pursued this and they really found that the rationale for the contraceptive law did not distinguish between all of these other forms of regulation that, theoretically, the state could do. the states answer was, we would never do that. as opposed to, we can't do that. those questions are there, whether there is actually going to be a real-world circumstance when the court has to examine it is something altogether different. the majority said the interest may be different in those kind of cases as they were, but as a matter of doctrine, those are legitimate questions even if at this point they are academic. >> that is comprehensive. [laughter] >> dobbs, the opinion was previewed in a first of its kind leak of a draft opinion. what do you make of that? >> about time. [laughter] >> i will ask the journalists first and the former supreme court clerk second. >> it is extraordinary. i never expected anything like this. one thing i found strange is it seemed to me there was a lot of immediate wish casting from sources on the left to the effect a conservative law clerk or source inside the court was responsible in some attempt to bring back a wayward conservative justice into the fold. the story appeared in politico on may 3. a week later on may 11, politico published a follow-up story to the effect that justice alito's majority opinion was the only draft that had circulated and that there had been no change in the vote count since it first circulated in february. it seems we had very early confirmation that a left-wing source was responsible. apparently, that person felt the need to clarify what was happening. >> the question i actually have is whether the leak signals a change in the way we approach the supreme court as an institution that is covered by the press. previously, if someone were to hand me an unpublished opinion, i would report it. regardless of the annoyance it would cost to the court. that did not happen. it is assumed that it is not going to happen. if this institution works differently, we do not look at it the same as the white house, and you are trying to get ahead of the news. this might be just a one off because of this case. there was actually, as reported, a similar if not extensively during the actual roe case in 1972. but, does this mean that the court needs to be covered more like a political institution they and as a traditional one? do the members see themselves acting that way? we know the public does. we know there has always been difficulty for the public to distinguish between legal and political institutions, but we have seen in polling that the public is more skeptical of the court, and as journalists covering it, we have to have some discussions about whether we begin to reevaluate the way we have looked at it. >> i will add one quick thought. i agree completely. there is always, at least in my years, i have seen perhaps over time you lose your edge. it is easy to fall into a predictable rhythm of coverage. i wonder if emma as -- said, this leak is going to -- people on the supreme court press room to be more dogged in their pursuit of inside information. i do not know and i am agnostic as to whether this is a good development. my bias view is the supreme court press corps is quite a good group of reporters. i think they are a standout group, frankly, in washington. to the extent this development might make us more like our colleagues who cover congress or the white house or something like that, i am not sure it is a good one. >> any final thoughts? >> from the advantage of someone first, i still find one of the most shocking developments in recent times just because it is such a betrayal of the way the court works and the -- the deliberative process the court works on. unlike leaks that affect the executive branch or congress, it is also a very small body of people. who are now getting targeted. not just he justices themselves. it seems like there's only one leaker. obviously you can go on twitter and see all kinds of speculation about the -- getting bandied about. i am upset about this. i found it profoundly shocking, a devastating develop and for the court. >> i agree. i think it is a disaster for the court that this leak happened. i think it will have a real effect on the internal trust, which is so essential for its good operation. i hope that, although i am not optimistic, i hope the leaker is severely punished. either legally or socially. so that it never happens again. >> moving on -- >> just one thing about this. the chief justice commissioned an internal investigation, but there was not any comment yet about whether the results of that investigation are going to be made public. i wonder what people on the panel think about that. does the court have an obligation to release the results of that investigation? it may be they couldn't figure out anything, but it also may be that they did. >> i do not know that they have an obligation. this is a technical matter in the court has a lot of discretion as far as how they handle it. i assume part of the calculus could also be, does the investigation ultimately make someone a martyr? it is such untested -- uncharted territory. there is some sort of conclusive evidence as to who did it in the court has to decide -- and i just don't know. >> who are you going to ask if they have a legal obligation? [laughter] >> i think more of a public policy or public accountability type your >> you can see also the argument being other people have had against their -- as far as the suspected leaker. to clear that cloud from under clerks. i do not know how the calculus work, but it is a hard call. >> it seems to me most of the justices defaults to privacy as a matter of course. obviously this is a unique and unprecedented situation but the momentum towards non-transparency is so strong at the court, i would not expect it to be -- >> kevin, would you mind moving onto one of the other big cases, the first second a moment case we have had in a decade or so, take us away. >> it might first be helpful to speak about concealed carry permitting pre-bruin, just so we have a sense of the regulatory environment, to be media sensitive as to how this cashes out. six states implemented what are called may issue regimes, these are discretionary systems in which a permit for concealed carry will turn on the judgment of law enforcement. more about new york's rules in particular in a minute. about 40 states have shall issue regimes, substance -- systems in which individuals are essentially entitled to a permit , so long as they meet certain classifications. pass a background check, demonstrate competent -- competence in the use of fire arms. things like that. also, about 25 states have implicated -- implemented what gun rights activists call constitutional carry, or permit scary. that is to say that individuals are allowed to carry a concealed weapon without a permit. that is not to say there are no benefits from getting a license, there are, but right now about half the states in the country do not require a permit to carry a concealed weapon. the most populous state is texas, where i live. the first thing to say about this decision with respect to consequences is that the court sanctioned shall issue regimes while may issue regimes appear to be unconstitutional. the law will change in only six or seven jurisdictions and the other 40 or so states can go on regulating concealed carry as much as they have. there is a footnote that is explicit to that effect on page 40 of the majority opinion and justice kavanaugh drives that point home in his concurrence. the petitioners in this case are robert nash, brendan crotch and the new york state rifle and pistol association. they applied for a permit because of a spate of robberies in his neighborhood. cosh spends a lot of time in backwards areas and wanted to concealed carry because law enforcement has some difficulty reaching those areas. those applications were denied for -- proper cause. the new york statutes actually do not define proper cause, but the courts have interpreted it to require some heightened interest in self-defense. apart from the general population, or distinguishable from the general population. a generalized interest in self-defense is not going to cut it in new york state. in practice, this only means that select people, armored vanguards or celebrities can obtain permits. i understand former president trump has a concealed carry permit. i do not know. in any event, this report and the second circuit -- were president. the court granted in april of 2021, justice thomas delivered the opinion of the court on june 23. the court was 6-3. this is probably justice thoma'' most consequential majority opinion in his near your -- in his near 30 years on the court. it does important method -- methodological work. in the years since heller, the lower courts have adopted a two step task for handling secondment -- second memo cases. it is a combination of history with some kind of means and scrutiny. the first step, the courts -- how relevant practice fits within the scope of the second amendment right. is it outside the scope or categorically unprotected. if the assessment is ambiguous, or inconclusive, courts moved to the second step and they ask how close the challenged law comes to the court of the second amendment right and how severe is the burden? -- scripts -- otherwise, intermediate scrutiny applies. this is the approach that was endorsed by new york state respondents and the solicitor general participating as an -- but it was not a test that the court endorsed. justice thomas said the two step approach is one step too many. he wrote, the government must affirmatively prove that its firearms regulation is part of the historical tradition that limits the outer bounds of the right to keep and bear arms. that historical approach the court says is consistent with heather itself and necessary in the first instance because enacting the second amendment, the founders were incorporating a pre-existing right. one other observation here, this preference for history and tradition is in keeping with a move away from the tears of scrutiny that we are seeing in the court in other areas. -- might be an example. professor alethea has written about this. abc will have more to say. i don't wish the death of tears of scrutiny, but it seems this approach to history and tradition has some favoritism at the court. a couple of particulars about the historical analysis that the court set out, the first, justice thomas said that evidence from the ratification era will carry more weight than evidence that is far field of that period? -- rested on a huge historical record that spanned from the 14th-century statute of northampton which is an english law that forbade -- in markets and fairgrounds 2 -- enacted in places like new york. at least in part in response to anti-italian animists. we do not know where the line is exactly, but we know from this opinion that if you are drawing evidence to or from the -- you are in strong footing. the court says the historic should involve reasoning by analogy. two questions you might ask in that connection are how and why a given regulation burdens the right to self-defense. the court also said, in a reasoning by analogy, we are looking for just that. we are looking for analogs, not historical twins or dead ringers. this is from the opinion even that the modern-day regulation is not a dead ringer for historical pre-search -- precursors, it may be analogous enough to pass constitutional muster. one specific analog the court mentions his restrictions on carry in so-called -- places. >> it seems new york state is really keen to test the sensitive places issue, the legislature has passed him and governor hogle has signed a new concealed carry law which has quite a long list of sensitive places, a few among them, times square. libraries, public parks, zoos, all performance venues, museums, in amusement parks and the like. protests. i guess you can't carry out a gun rights rally. and any public transportation, which is interesting because the new york city subway got a lot of talk during hypotheticals at the court's argument. also apparently, applicants will have to list their social media profile so that relevant agencies can conduct an assessment for character and fitness. paul clement, aaron murphy and their new firm have a -- did anyone else want to comment on that? professor, since you are to blame for the court not using the -- they seem to have adopted your amicus brief. >> thanks. the mns brief along with my co-author for my firm argued against the tears of scrutiny and said this form of analysis, though dominant in constitutional law today, has no basis in the text or original meaning of the constitution. if the court does want to move in a more originalist direction, it should refuse the tears of scrutiny and try to pair back the tears of scrutiny where it had had -- where it has already colonized areas of law like free speech and equal protection. i do think that bruin, in combination with the kennedy case and its approach to text and history, signals a real shift by the court away from balancing tests, away from judge empowering discretionary tests and toward a more text and history approach, which i am delighted to see. >> i thought that one of the characteristics of the bruin case -- it was interesting that the majority felt a law that was more than a century old was not sufficiently historically grounded to the past -- to pass constitutional muster. broadly, felt we have moved from a debate about what was encompassed by terms like liberty and equality to who is the better historian. the dissenting opinion argued that the history was wrong and brought up its own historical examples from the founding era, before and after. much of the majority opinion was devoted to refuting the historical argument that the dissenters were making. it does raise an interesting question about how much of a historical review our -- our courts going to be doing and how they dated decide whose history is right. history, like slaw, gets reevaluated. there are debates in history about the significance of certain things. how do you decide how many colonial statutes are enough to justify a particular form of regulation or not? i do not think the court has yet set out enough guidelines to lower courts and how to conduct the historical analysis they are probably going to be doing now, a lot more, now that future cases will allow opportunity to do that, to spell out parameters. it will be interesting to see what level of scrutiny of historical research, what tears of scrutiny are established to look at these kinds of constitutional questions. >> i would push back on that a little because the interesting thing about bruin is that it is the most originalist view ever, above and beyond heller, which was a debate between justice scalia and justice stevens. the interesting thing about bruin is that it actually does methodologically move the ball a lot on one of the questions originalists grapple with. what is the most relevant time period to looking at the history of the relevant right and how to uss colonial era statues? there is guided which 19th or 20th century sources are not there is a goldilocks field. you do not want too early, you do not want too late >> moving on to the religious liberty cases, can you talk to us about carson versus macon? >> this term has the three jesus. gestation, god and guns. there's two big cases this term that is really an increasing part of the court's docket. it is an interesting area to talk about. carson versus macon mode which is about whether states, when disturbing benefits to private schools, can exclude private schools if they have religious character or use religious instruction. it basically means if you are from maine, odds are good you live in a town that may not have enough people to support its own public school. maine has long dealt with that problem by saying you can get vouchers to go to private schools. by 1980, may and also added you can go to any private school you want, except it has to be a -- it has to be "nonsectarian." which has been taken to mean no use of -- religious instruction. as far as letting people -- it was raising concerns about support -- state support for religion. the supreme court held that maine's law violates the free exercise clause and the general principle that comes out of this case law is the price of receiving generally available public benefits cannot ruby repudiating religious views. the court says you can't just say there's some distinction between religious status versus religious instruction. religious schools to religious things. if you want, as a government or state to invoke some sort of established -- antiestablishment interest where you are uncomfortable providing funding, you could do lots of things. you could not have a voucher program. what you cannot do is say you are expressly excluding a particular set of schools based on their religious character. justice breyer descendants, joined by kagan and sotomayor. they say, this is not a review of how the free exercise clause and establishment clause work together. they would say this recurrent theme in a lot of these recent cases, that there is more of a since the establishment clause gives government more leeway to exclude funding of religious schools, even if there establishment clause does not compel that result. they would say, go back to the -- kennedy versus bremerton is another 6-3. the debate between the majority in the dissent, what does this case even involve? the majority says this case is about one thing only, whether coach kennedy can lead private prayer on his own on the football field after a game. it is at a time when he could otherwise check his email or do other stuff. justice sotomayor says that is not what this case is about. this case is about a coach encouraging others to pray with him. from those wildly different factual premises come very different views on the ensuing results on how much leeway a school should have in terms of disciplining a coach or engaging in fundamentally -- [indiscernible] gorsuch's majority says the free exercise clause and free speech clause protects the coach when he is on the field privately at a time when he could be doing other personal things. the government cannot use a non-neutral policy and say it is fine for you to check email, but not to silently pray. that is what they explain for the record, that the school district -- doing and the district court counters by saying, look at the establishment clause. we don't want that have a -- we do not want to have an establishment because violation here. the court says no, you can't invoke the establishment clause absent some claim based in history and tradition that will prohibit the practice. justice sotomayor, again, two ships passing in the night view of what happened in this case. her distend starts from the premise that this case really fits in with a lot of the courts previous cases where if you have a mandatory school event, or event that is largely mandatory, you cannot have a public speaker who is a religious leader, engaged in prayer. etc.. what are the takeaways? two quick things. one is that religious liberty cases are interesting because we have heard a lot about two earlier cases, dobbs and bruin, in which the court i think has made significant changes. the religious liberty background i think is much more incrementalist. for carson, it took three cases, lutheran, espinosa and then carson just to get to the principle that states cannot just ruminate based on the religious character of the school, or otherwise, when disturbing benefits. when it comes to kennedy, i think kennedy is going to be most famous for gorsuch's statement of the so-called lemon test that has been dead and buried until someone noticed. it took a dozen cases of the court since the 1990's being the 11 tests when you're asking whether a reasonable person i think he is -- endorsing religion. the court say, that has not been the test for a long time. haven't you been paying attention? i think people have been paying attention, it just has not been super clear until now. not only carson, in terms of the effect for a school voucher program, but i think this is the culmination of decades long efforts to cut back on the warren court's understanding of the establishment clause, which has affected the way a lot of governments have approached how they think they are allowed to interact with religious exercise . i think the old concept is there is an incredibly strict separation between church and state, such that any indirect aid or anything you do that might look like someone thinks you were supporting prayer or religious exercise, no can do. that was the old view and the court has been chipping away for the 30 years at that. these cases i think clearly signal that that is an overbroad understanding of the establishment clause. in order to prohibit something, you need to ground that in historical understanding of what that clause actually prohibits. >> does anyone have anything to add? >> i would say in kennedy, i am appointed -- being rival narratives, it is true. it made it interesting to write about. just as gorsuch mentioned, whatever happened in the run-up to coach kennedy being penalized, when the district ultimately placed him on administrative leave commit it cited the postgame prayers he delivered on two or three specific occasions as the reason he was being placed on leave and it does not strike me as wildly dishonest. >> one thing about coach kennedy , he was on tour and he came to d.c. and i had a chance to meet him. he is a very engaging guy but one thing i found interesting was how he got the idea to do it, it was from watching a movie called facing the giants. he actually told me he had been -- his wife had helped him get this job offer at the high score -- the high school and he was not sure whether he would take on the job and he was thinking about it when he saw this movie which is about a football coach who turns around a losing team through prayer. he gets the team to realize the most important thing is teamwork and sportsmanship. and praising god, not whether you win. what he began doing at the high school was like that movie. one different is that it is a private, religious school in the movie and it is a public high school in the court case. that was one little difference. the question i have is when we look at the incremental changes in the religious doctrine away from the warren court, i was getting a document notarized and i happened to think of to scotto versus maryland which was an early 1960's warren court case. -- are considered public officials and maryland had a statute that said no religious test shall be held for public office as long as you believe in god. that was challenged and the warren court struck that down and said that is actually a religious test, whether you believe in god at all. i wonder, is that type of test -- that seems to me to be the kind of things that maryland had kept on the books since 1632. is that the kind of case that is also called into question by the court's historical approach to the establish and cause and free exercise clause question? >> it depends. i think the court has called the methodology of many of the early cases into question. to that extent, yes. whether the outcome would change, i am not sure. it is a different way of looking at it. the question is, as a matter of history and tradition, was that understood? i think -- i would not expect that to be the main sort of mover of cases, but again, the weakness of some of the earlier analysis leading to the current court -- if you look at the way a lot of those opinions came down, it was based on assumptions about the nature of the establishment clause. >> very quickly, i do think that this move across cases, this term bruin rejecting tears of scrutiny, dobbs overruling the basis of history and kennedy overruling -- and leading toward a text and history approach to the establishment clause. all of that command some of the free exercise clause cases that did not employ balancing tests or tears of scrutiny, like -- cases, i think all of that is trending one-way. and yet, in his fulton concurrence, justice alito, in arguing for the overruling of smith and returning to what he believes is the original meaning of the free exercise clause, proposes a tiered approach to replace smith. there is a question the court is going to have to wrestle with if and when it decides to overrule smith, why would you replace that with scrutiny if we have been moving away from it in other areas of law? there is a important question that all of these cases posed to the court in the free exercise context. >> we also saw some big moves and overtly big moves and subtly big moves in the field of administrative law. would you take the lead on that? kick us off with west virginia versus the environmental protection agency. >> i think the case involves the clean power plant that never went into effect that the obama administration attempted to implement before it was withdrawn by the trump administration. talking about that, and also the osha case that was another similar type of administrative law question. one, i think it is the codification of the major questions doctrine that justice gorsuch has been talking about for a number of years through a number of cases. it is not exactly the nondelegation doctrine, but it is a cousin of it. it basically says the way the court is looking now at regulatory actions, whether they involve climate change or vaccine mandates, the court is looking for much more specific authorization and guidance from congress before regulatory agencies can take action. i think that is the big picture of both of those cases. west virginia versus epa has been kicking around for a long time, since the obama administration. the clean power plan of the obama administration was an effort to significantly reduce greenhouse gas emissions. what it did was it essentially encouraged coal producers, many of them having reached the technical limits of being able to improve the emissions of their factories or their power plants, to basically get out of business and start buying emissions credits from cleaner fuels and transition out of coal altogether. it also had some other elements involving the relation of each state environmental agency and what they can do, but that was sort of the bottom line is for -- as far as the majority's concern. there were standing issues because of the fed. it never went into effect. the trump administration withdrew it and replaced it with something like the affordable energy plan or something like that, which really limited mitigation efforts to what could be done on site, within the fence line of a power plant to reduce emissions. at the moment, there's really no plan on the books. the government wanted this case because it said there is no -- west virginia and other coal producers do not have anything to lose, so this court shouldn't hear the case. but they did hear the case and it was an opportunity for the court to clarify this major clerk -- major questions doctrine. especially that the understanding of the clean air act and the mission of the epa did not include remaking the entire energy sector of the economy. it was much more narrow, regulating emissions and technical aspects of various types of pollutant emitters. similarly with the osha case, this was related to a different public health issue, the coronavirus pandemic, where the biden administration saw through the occupational safety and health administration's to require that large employers have their employees either vaccinated or not come into the office, pretty much. that was challenged by the national federation of independent business, it also challenged the obama administration on one of its proposals that congress did pass come of the affordable care act years earlier. here, the court said that osha, the federal safety administration as part of the department of labor -- not to address public health concerns that go far beyond the workplace. people get infected all kinds of places. it is not limited to the workplace. osha's jurisdiction is much more narrow. [please stand by] under osha authority. same thing with the greenhouse gas case. the center says the carbon dioxide greenhouse gases, the tremendous existential threat to the planet. they are terrible air pollution. the epa is supposed to deal with air pollution. this falls within what congress expected them to do. a different statutory readings by the majority and dissenters in each case. you pull back the camera bit, the different perspectives of what orientation the constitution had in the way that separate tatian -- separation of powers operate. majority keenly attuned to the concern that the federal government, the national government will overreach. it will go beyond its delegated powers to start doing things with american society and economy beyond what has i think the necessary political buy-in. the dissenters are looking at it from the other end of the telescope and saying the constitution was created to empower the federal government to respond in a way that the articles of confederation did not and being able to act as a single nation when there are nationwide problems or threats is the point of the federal constitution and now you are hamstringing the agencies and interfering with structure that the framers had. you had different views animating the interpretation going on in these cases. >> he thing to add? >> i feel like this is a put up or shut up moment for two old pieces. one is the brown and williamson versus fda about whether the fda had the power to ban tobacco products as a drug. the other is whitman that congress doesn't hide elephants and mouse holes case. it doesn't give agencies the power to do big exit don't make a lot of sense. in whitman, the elephants and mouse holes took on a life of its own. it got to a point where where's the bear? these are great catchphrases, but justice gorsuch in particular it also kavanaugh had been writing about the idea of major oppressions for a long time. if you think congress is given an agency -- that affects the entire national economy and especially a great fit but congress is repeatedly -- what should you infer from the question mark whether this doctrine turns into a greater revitalization will be really interesting. it is safe to say that you will see a lot of major questions. >> justice breyer has retired, justice jackson has been sworn in. what changes do you see coming down the pipeline for them, will that affect how you cover the court? >> first, the justices have said in different venues that the arrival of a new member puts them all on their best behavior. some things are pretense their. justice jackson's arrival is timely. i remember when justice kavanaugh was confirmed, arguments in the courtroom on his first day of the bench were very playful. i can member justice sotomayor asking a hypothetical that involved a pinch. justice gorsuch made a playful face and justice kagan made a point of turning to shake justice kavanaugh's hand in full view of the court and the press. it seems to me that to the extent things are bad up there right now, maybe justice jackson's arrival will help everybody clear the slate for the next term. >> i agree that it's a small group. even after the contentious kavanaugh hearings, justice sotomayor was extremely complementary toward him. even if they might be anticipated to disagree on a lot of cases, they will work with each other and that is paramount. they all have an interest in maintaining -- even to make it better to come to the office. we're waiting to hear justice jackson's voice as a justice of the supreme court. she had a few opinions that were noted as the lower court judge, but she has mainly been a district judge and has not had a chance to expound the way she thinks about these questions. we haven't had a chance to see her in oral argument and what she brings to the table. in terms of a subject, it is sort of a relief to have something to write about heavy topics and weighty disputes we have seen at the court this year. part of it will be what do should bring in terms of personality and outlook and style. in terms of substance, i don't think we are expecting them to be surprised. she should fit in pretty comfortably in the three justice liberal minority in the court. maybe there will be some areas or we look forward to see where she might see things differently than the other two democratic appointed justices. >> she will have ample opportunity to make our voice heard if she wishes. she is recused from one but a court granted review to a companion case that she will be able to participate in. the question being whether or not the court will overturn its affirmative action precedents. there are other cases involving the constitutionality of the child welfare act. there is one about someone in colorado who refused to create wedding cakes for same-sex couples. it usually takes a few terms to get a sense of who a justice is for the profile to fill out but that process could be accelerated in justice jackson's case given the docket. >> i think that one of the more notable shifts is in an of law in that for the reasons we just discussed, a ministry of law is likely to be a major frontier that the court will be confronting in the years to come. non-delegation doctrine, delegation of officers. doctrines that will come up in the next few years. justice breyer was one of the staunchest defenders of the administrative state. a scholar before he came a judge and someone who had deep knowledge of a ministry of law and views about a ministry of law. without him on the court for those cases, i think that might change the way the defense might end up approaching the argument. justice breyer would have been an important voice for the pro-administrative state position when the cases,. we don't know yet whether justice jackson will have the same views on those issues and will articulate them in a similar way. >> >> on most cases, the main exception i would say is justice breyer would sometimes side with the conservatives. perhaps the little-known utah versus -- that's what i'm thinking of. by and large, judgment line stays the same. the biggest difference is behind-the-scenes. justice breyer is one of the most collegial people i think anyone has ever met. he is sort of personally engaging and real rich builder. especially last term, you would see him get assigned big cases. the cases were not ideologically divided, but they were big cases. it takes time to become that person. only time will tell. when will one of the members take over that role or will it be easily polarized? >> with that, i want to turn it over to audience questions. my one admonition is that you are asking a question not making the statement. keep it short and a question. >> to be brief, you have covered so much. i did not hear a commonality about where presumed innocent would be the dividing line between ok and not ok. whether it's presuming the right to carry the main case religious practice should be presumed to be innocent first. i want to leave it at that because there is too much else to talk about. where is the present and of innocence, the language for that going back to how that could be whether we have to draw the line. >> if there is a presumption running through these cases, it's a presumption in favor of textually grounded rights against government regulation of textually rounded rates. the second moment to the extent that it is in the constitution and the right to abortion is not. the free exercise clause is in the constitution and the idea of a wall of separation is not. their actual commonalities there with the text and history and that's presumption. to the extent that there is government regulation of that, the burden is on the government to try to prove why it should be allowed to invade those textually grounded rights. >> makes question in the middle. -- next question in the middle. >> thank you for your time today. do you think that the dobbs league represents a loss of respect for the supreme court as an institution even from those who represent the court itself? >> i think that there is a new cohort of young progressive lawyers who increasingly see large law firms and the courts themselves as fonts of injustice and those who work within them as being very directly complicit in these supposed injustices. i think how those institutions are going to handle such people being seated among us is a real problem. >> any other questions? in the back. there is a question on the left as well. >> i was wondering on evidence from the founding being more dispositive than not when you were talking about the statute of northampton, i was wondering the opinion in bruin also takes time to debunk what the argument was for the other side on the statute. you think that older historical work is not going to be important at all or -- deriving public meaning going forward since the opinion took the time to say that this is not actually what it meant. >> i will hang back on the methodological point. the statute of northampton for example was enacted during a time of great turmoil within the realm edward the second being deposed in favor of edward the third. there is a view of the majority, a consistent threat with particularly restrictions on un-carriage enacted in england during times of on stability. from justice breyer, the respondent set a huge record of history and law office historians have found something wrong with everyone of them. it was familiar but good job at originalism. cherry picking evidence to reach the result that you prefer. speaking of that dissent, justice breyer opens by giving a lengthy recitation of recent tragic mass shootings that have happened. combining his critique of the law office history with his continued interest in squaring the court's deliberation with real-world outcomes, it was very much like him. >> there was a question in the back. >> the point of an effective rule of law is to allow people to coordinate complex actions and plan for the future. how do you think the failure of the court to overturn roe v. wade on substantive due process grounds is going to undermine this by leaving so much as statutory interpretation still on whether judges can find an unarticulated right deeply embedded in american history on this ad hoc basis? >> to the extent -- as i understood the point, the point is that dobbs overturns roe v. wade and casey but does not touch substantive due process as doctrine, it doesn't overrule that as justice thomas would have preferred it would not have but would in the future. there is this inconsistency in the doctrine because under the reasoning of dobbs perhaps these other substantive due process cases should be overruled and not doing so leaves this incoherence in the law. in some ways, that is the argument of the joint dissent in dobbs is to say look there is this incoherence in this area of law because of what dobbs did. the response that the majority makes is to say the whole idea of starry decisive is that areas of law don't have to be completely internally consistent because it could be that even though methodologically dobbs will call into question some of these right to privacy cases for reasons of stare decisis, they should not be overruled. if that's true, then the law can tolerate that kind of potential incoherence for reasons grounded in why starry decisive is a legitimate doctrine. >> the other thing i would throw in is that justice thomas's critique of substantive due process is one side of the coin. the other is his interest in reviving the privileges and immunities clause of the 14th amendment. that clause was famously discarded by the supreme court in the late 19th century. some of what i have read suggest the supreme court in giving such meaning to what they would view as the liberty clause than just the due process clause was a way to revive the concepts behind the privileges and immunities clause without directly overruling prior courts. to the extent that justice thomas is successful in getting the majority's review those cases, then if we are not going to have what's called substantive due process, does anything replace it? the privileges and immunities clause, i hope there will be a scholar who writes about the difference between privileges and verses privileges or immunity. there may be a conference on and/or which i am looking forward to. that's something we have to look at. he said in the concurrence of dobbs that there may be other grounds for supporting these rights and that might be the kind of thing he was talking about. >> i think it's going to be interesting because without relying on what has been traditional substantive due process, the griswold conception of substantive due process, the majority i take to be saying gives rehnquist a chance. give the test have a bit of a run in the lower courts and see how they apply it. meanwhile justice thomas will continue on his project of saying what is the privilege around immunity. i think in dobbs they are clearly trying to draw a line as to why abortion is so different -- different. >> with that, we are out of time. please join me in thanking our panelists. [applause] [inaudible conversations] to democracy. >> secretary tom testified on the opportunities and challenges facing farmers and rural communities. he outlines his nations efficacy to address the baby formula shortage. this hearing runs about two hours.
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