OA553: The Supreme Court Commission Failed. Gabe Roth Joins Us to Discuss Why

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 553. I'm Thomas. That's Andrew. How are you doing?

0:01:23 Andrew: I am fantastic. We have one of my favorite guests coming back, Gabe Roth from Fix the Court, and we're to talk about the just released final report from President Biden's commission on the Supreme Court. And spoiler, I think it's giant sack of crap. So no,

0:01:40 Thomas: Oh, so wait, you're not fantastic because of that awesome report just released by the Supreme Court. Whatever. That sounds like you're fantastic.

0:01:49 Andrew: I think this is a garbage commission from the beginning. It's got William Baude on it, who we've, you know, spent two deep dives explaining that he's, thoroughgoingly a dishonest when it comes to the subject of originalism. It had Jack Goldsmith on it, who's a cheerleader for the Federalist Society. It's not good. I don't yeah, it's a bad Biden thingy, and people who say we know, we cheerlead Biden, like, that, no we don't, and this is a bad Biden thingy. We'll see if Gabe changes him, changes my mind.

0:02:05 Thomas: This was a bad Biden thingy.

0:02:19 Andrew: And joining us for the interview is Gabe Roth from the fantastic Web site and Project Fix the Court. Welcome back to the show, Gabe.

0:02:26 Gabe: Hey, thanks so much for having me, guys.

0:02:28 Andrew: Yeah, absolutely. So

0:02:29 Thomas: Since you're back I'm guessing it's not fixed, doesn't it, you're not done yet, okay still going, yeah, I

0:02:34 Gabe: No. Still a work in progress, unfortunately.

0:02:37 Andrew: Yeah. Well, I wanted to have you on to discuss the final report by Biden's Supreme Court presidential commission on the Supreme Court of the United States that was supposed to be finalized yesterday. Yesterday, they actually turned in their homework a week early, I guess, hoping for extra credit.

0:02:47 Gabe: Yes. Nerds.

0:02:55 Andrew: OK, those nerds, statistically speaking, 70 percent of them are my people. But we do that, if folks weren't here for the last time, if you just want to talk a little bit about the fix the court project. And by the way, you are the the brains, the brawn. I mean, you know, that's a that's that's your outfit. You do you do all the heavy lifting.

0:03:07 Gabe: Oh, yeah, sure. At least one of those two things. Probably not both, but one or the other, depending on...

0:03:17 Thomas: Gotta hit the weight room I guess, I don't know maybe that'll help, at this point let's try anything, anything me

0:03:20 Gabe: I think that would. Yeah, anything. I'm open to your suggestions. No, so Fix the Court, I started seven years ago. I've been working in political consulting, and my background before that was actually in journalism, not the law. I'm not a lawyer. I do give unsolicited legal advice all the time, though, so arrest

0:03:38 Andrew: So do I no one cares about that anymore

0:03:40 Thomas: Too high five yeah

0:03:40 Gabe: Me, I guess. I don't know.

0:03:41 Thomas: Because we can't get disbarred for it it's all it's free for us andrew's we the only one who can suffer consequences we

0:03:43 Gabe: Yeah I mean yeah Exactly, it's all, yeah, that's sorry, Andrew, but uh, yeah, so so I've been working in political consulting in DC after I switched over from journalism, and just coincidentally, in like 2012, 2013, I had all these clients that had cases both in the federal judiciary, so like same-sex marriage plaintiffs and voting rights plaintiffs, and uh, Docker recipients, dreamers, and they were all moving their cases through the federal courts and they were going to SCOTUS. And they're like, okay, yeah, we're in Texas or Maine or California, we'll just watch our cases on C-SPAN 4. And I'm like, that's not a thing, right? We don't have cameras in the Supreme Court. And with my background in broadcast journalism, I was like, oh, this is perfect. I could start a movement to try to get cameras in a Supreme Court, of course, that's failed. But um, we do have live streaming, live audio is something that we've worked on and gotten successfully.

0:04:32 Gabe: But but so yeah, back in 2012, 2013, as I was thinking about this, I realized that it wasn't just this idea of a lack of live streaming, a lack of broadcast that makes the Supreme Court so opaque and powerful and unaccountable. So it's the fact that they can serve for 35 years without having any sort of real accountability there. They don't have an ethics code. They don't have to publicize when they go on fancy junkets. They don't really have to tell you what their financial investments are, except once a year, and they can leave stuff off like they always do. They don't really have to report their gifts. And if they do, they leave off all sorts of personal hospitality that they get during the year. If they give a talk to a partisan interest group, they don't have to tell you about it. They don't have to publicize what they've said.

0:05:18 Gabe: You know, they don't have the same sort of, of, conduct rules that, that other high ranking officials have. So I wanted to change that. So that's where Fix the Court came out of. And uh, you know, I think we've made some significant changes over the years. We got a term limits bill introduced in the House for the first time in American history. Every federal appeals court is live streaming. There's several bills in Congress that would make PACER free that we worked on, or that would make federal judges have to follow the same stock and disclosure requirements as members of Congress. So we're slowly getting there, yeah, but the court is still not fixed. So you might need to to have me on in another seven years.

0:05:52 Andrew: We have we have a ways to go yeah I

0:05:54 Gabe: We definitely do.

0:05:55 Andrew: As you know, folks who uh endorse and support uh all of the initiatives that that you've described there, um, you've been studying this since 2012, 2013, in terms of those kinds of, you what you might call ethical lapses, or uh might have fixed a different word to it. Um, can you tell us about the directionality of that? Is right? That something that has remained constant? Uh, think some people, myself included, probably have the perception that uh it seems like it's accelerating and getting worse, um.

0:06:24 Gabe: It might be, it might actually be accelerating. And that's, that's, you know, sort of a tough thing to realize when you're running this organization that things might be getting worse, not better. And I think part of that is two things. One is that there are other folks looking more seriously besides us, and we partner with a lot of these groups, but there are others that are actually looking at the conduct of the federal judges on a more regular and intricate and discrete basis. So just for an example, there was that Wall Street Journal article that was published three months ago that found that 131 federal judges were sitting on cases in which they had a financial interest, right?

0:06:25 Andrew: Yeah yeah yeah

0:07:01 Gabe: And that came out of a partnership that they had, Wall Street journal had with a group called the Free Law Project. And the Free Law project, we've worked with them for years to try to get judges' financial disclosures put online. For years, it was impossible to get judges' financial disclosure at all. And no one had put them online and no one has put them in a database. But Free Law Project did that and working with the journal, they actually found these 131 judges who had these financial conflicts. So I think people are looking a little bit, not just us, but other groups are looking deeper. And the other half of the equation of why I think things might be getting worse is that judges are more and more partisan. Judges, there in the Fifth Circuit and the Ninth Circuit and pretty much every circuit market you're reading their opinions and it's like are you auditioning to be the next president of the federalist society or are you a federal judge right you know I can't there's been all these like recent opinions I

0:07:47 Andrew: Yeah

0:07:50 Thomas: Read a couple of them on the on the show recently you

0:07:52 Gabe: Yeah and you've you've covered them, you've done a good job covering them, it's it's just I'm like reading these opinions and I just I have no, this is not the op-ed pages of the Wall Street Journal, this is a judicial opinion that carries weight for, you know, if it's the Fifth Circuit, citizens of three U.S. states. So to me, it's a real shame that part of the greater partisanship of the political branches has definitely seeped into the judicial branches, meaning that you've got judges that are less concerned about adhering to basic rules of decorum and issuing outlandish opinions that that I would say are not consistent with basic understandings of ethics.

0:08:32 Thomas: I don't want to derail the conversation but I've been I've been wondering about this because I this frequently gets referred to as like partisan or political like, oh, the court's becoming political, like, you know, and I think even Sotomayor, during the Dobbs arguments, mentioned that, like is it just going to be political, and I don't know, I'm trying to figure out what to think about that, because it's not really that, it's that they believe things that aren't true, like Alito is talking about, oh there was another oral argument I heard recently, where he mentioned critical race theory, like would you ban

0:08:34 Andrew: Or

0:08:35 Gabe: Oh, no, let's do it. I mean, yeah.

0:09:03 Gabe: Yeah, I was thinking about that. I was always the same, the last thing I said, yeah, sure.

0:09:04 Thomas: Yeah right I don't Know if, like, I want justices who are going to uphold Role and perhaps in my world expand the, the right to, uh, reproductive health. Now, is that political? Is? And if it is, I guess then I want left-wing political judges, I guess. Or is it just like it's not so much that that it's political and that the right politics are getting into it, it's that now right-wing politics is even further divorced from reality, and that's really showing up in these opinions.

0:09:36 Gabe: Well, yeah I think that's sort of two issues here is, yes, to your point that we have this strain of divorced from reality, seeping into political opinions. But, if you you have the ascendant in judiciary, as the right wing does right now, like, don't be a dick about it, right? Like, overturn Roe, but just don't Be a dick About it. Like, I don't need a 20 page essay on Woodrow Wilson's racism and the roots of the racism in the Democratic Party in the 19 teens, like a Fifth Circuit judge wrote yesterday, like just overturn the damn law and move on like it's just it's yes

0:09:56 Thomas: But

0:10:13 Andrew: Or every clarence thomas descent from the past three years that

0:10:16 Gabe: You know talking about abortion is eugenic it's Really, you know, again, to me it's yeah.

0:10:17 Andrew: Yeah yep well

0:10:22 Thomas: That's why they're doing it, so I think that's just them expressing why they were even doing it at all.

0:10:28 Gabe: I mean, that's a part of it. I mean, I think that, and again, there is also the other side of the coin, is maybe we want judges who are this divorced from reality to be out of the open, so that will motivate more people to elect better politicians to appoint better judges that won't do that. I mean, I think that that's sort of the other side of the point. I don't know, you know, where I come down on that exactly. I am consistent saying that I don't want the judges to be dicks, even if they are, being even if there are writing these insane screeds in their opinions. But just overall, it, it's really tough to know, you know, from a larger political perspective, based on you know what your views are, what my views are, which don't seem that different, know, what, what I want the judge, the judiciary to look like. Well,

0:11:08 Andrew: And, and, and again, this is, we're all still on preliminary, so I, I guess, this interview is going to go the whole show, which I had anticipated it might.

0:11:17 Gabe: The scotus commission basically didn't do anything so we're more than more than within our within our rights to talk about other judiciary related topics I mean

0:11:22 Thomas: Yeah, he

0:11:18 Andrew: Right, there we go. Well, good. That was going to be my lead off question to you. But before we even get there, don't be a dick about it rule. I pin entirely at the feet of Antonin Scalia, who, you

0:11:34 Thomas: Was firmly of the be a dick about it school of jurisprudence.

0:11:37 Andrew: No, no, no. But right. Yeah. And, you know, so, for example, like we talked about on the show, the difference between Neil Gorsuch, who is very clearly in his writings, was a was an Antonin Scalia protege, right?

0:11:38 Gabe: His progeny

0:11:51 Andrew: Mirrored himself after Scalia writes like Scalia uses the same.

0:11:51 Gabe: Tries to write that scalia scalia was a much better writer like sorry sorry neil but

0:11:58 Andrew: Oh, good. Good. No, please. I'll insert the dagger. You twist my wrist. But versus a Brett Kavanaugh, right, who, again, reaches the same outcomes, has, you know, the same, you Know, kind of monstrous philosophy, but but writes in very, you know, sort of careful and measured tones. And, you know and, we noted that. Thinkthat's I, kind of an interesting historical development. And I, and I agree with you that I mean, I think I'm sort of staking out a position, you now, somewhere in between you and Thomas that that I think, that there are two things that matter. And the first is that, that, That both fall along the different right, not necessarily the like kind of left wing, right wing spectrum. Right. And the first is that don't be a dick about it rule.

0:12:44 Andrew: Right, the the idea that there should be some level of decorum and respect for judges who deserve it. I mean, we've called, we've an entire class, you know, Justins and Coreys and one cannot make me respect Naomi Rao. But that's part of having like an atmosphere of respect, I think, is what prevents you from, you know, or what ought to serve as a disincentive towards nominating a Justin Walker to sit on the D.C. Circuit. The second thing is you look back at the history and tradition and, you know, the Federalist Papers, right? And the reason judges have lifetime tenure is because the founding fathers thought that everybody would be David David Souter, that right, that you would get appointed to the bench. You would immediately forget your history and you would sort of go where the law takes you. And David Soter, right. Appointed by George H.W. Bush. There was, you know, not a lot, but there was some Democratic pushback and opposition of is this guy, you know too conservative uh and then uh I think yeah no right not not even fair to say drifted leftward, right, like rocket acceleration track to the

0:12:56 Gabe: Sure yeah yeah yeah correct

0:13:57 Andrew: Left um and And I mean the same thing is true of um Nixon's appointments to the court, the same thing is true of of members who joined the court who were expected to be more liberal than they turned out to be, um, I I I Byron, right, is a fantastic example, um, and I think the, I fundamental idea of trust in the judiciary is the idea that you cannot just count up the D's and the R's after the appointment and figure out what the result is going to be.

0:14:08 Gabe: Fire. And White, yeah.

0:14:25 Gabe: 100.

0:14:25 Andrew: And it feels like now that if there is like, right, you know, yeah, if you've got something on riparian water rights between Idaho and Wyoming. And who knows, maybe you'll get a crazy alignment. But but if you've got anything that has any sort of political tenor to it, you know exactly where this court is going to wind up. Yeah.

0:14:44 Gabe: Yep and That's not where exactly, yeah, and that's not where we should be.

0:14:48 Andrew: So that, that then I think is the perfect transition to actually talking about this final report, because if if the three of us have defined kind of the fundamental problem problem with the Supreme Court as being, you know, what I might call the Sheldon White House problem. Right. After the much discussed, you Know, we've we've discussed it here on the show. We've discussed It with you, Senator White House's brief in the New York Pistol and Rifle Association case that that basically with math makes that intuitive case that that we just described, that this Supreme Court reaches conservative political outcomes and has done so for the better part of a decade now. Why is it that we can say that that's the problem? But the presidential commission on the Supreme Court cannot describe that as the problem.

0:14:55 Gabe: Mm-hmm sure yeah and that's, and that's, I mean, that's something that that Senator Whitehouse mentioned to me the other day which was was the yeah they well you you started it um was that the commission

0:15:42 Andrew: Oh, nice, nice name drop there. I'm very jealous. Yeah, but I didn't say I got to talk to him that's

0:15:49 Gabe: Yeah

0:15:49 Thomas: Yeah, I have also heard of senator whitehouse so I'm definitely right up there with you guys yeah

0:15:50 Gabe: Well no He, he said that his issue with the commission, the report, was that it did a horrible job of outlining what, what the problem is. And you can't solve something, you can offer solutions, you can't offer constructive criticism without defining, forget even accurately defining the problem, without even attempting to define the problem. And I think that that is a real glaring issue with this commission. And I understand that it's Joe Biden's commission, and he wanted it to be bipartisan. And then do think there are bipartisan solutions that would sort of solve a lot of the things that we're talking about. But, you know, having former judges on the commission in Tom, Thomas Griffith, and David Levi, having a guy from a the American Enterprise Institute, and not Rome Orenstein who's like their token liberal, having another guy from the American Enterprise Institute on it, having for whatever reason and I'm still trying amazing

0:16:43 Andrew: That's adam white and I have an 11 minute monologue about adam white if we decide to go there yeah um

0:16:48 Gabe: Amazing I know nothing about him, but like, sub-tweeted him today and he hasn't responded, which I'm sad about, but anyway, he's like, if we had term limits, then in a new justice every two years, we'd already always have presidents that tie their victory to the direction of the Supreme Court. And I am like, that's already been happening like since ever, ever. Anyway yeah

0:17:05 Andrew: I it literally that was the pitch that was made and again not at a dog whistle level in 2016 to kind of shore up republican support for donald trump that worked was hey Hey, hey, man, he's going to give you he's going to gave you who you want from judicial appointments. And he did.

0:17:17 Gabe: And it worked exactly so I think that was the part of the right, I understand the desire to have conservatives on this commission, they picked the wrong freaking conservatives obviously, and then two of the conservatives, Jack Goldsmith and some other guy, uh, actually left the commission because it was 36. before now it's 34 um thank you yes well

0:17:37 Andrew: OK, yeah, Caleb, Caleb Nelson, those were those were two of the at least four I have gone through.

0:17:45 Gabe: There are some others. Maybe the Princeton guy. There's maybe a few others that I'm missing here. But when you have a commission with former federal judges, with lot of the testimony, and I testified, but a lot the testimony was from practitioners who benefit from not being too critical of the people they are practicing before. So the brief or the testimony that was cited the most times in this paper was won by people who practiced before the Supreme Court. They're not going to go out on a limb and say that we need big changes. They're just not going to go and say there's an issue with judicial supremacy. They are not. They will pat themselves on the back and be happy that they've been able to reach this status and closeness as members of the Supreme Court bar.

0:18:30 Thomas: Damn it you need me to testify I'll tell it how it is let's

0:18:33 Gabe: The three of us are going to start our own commission, which will be much more successful

0:18:38 Andrew: Well, with blackjack and hookers.

0:18:38 Thomas: Oh I love it with blackjack I try

0:18:43 Andrew: Yeah, it so much I want to unpack Your testimony was not added as one of the appendices to the final report. I was very sad about that. I mean, you know, you're you're

0:18:49 Gabe: It's okay it's it's there it's some website, white house website somewhere, it's it's all good, sure.

0:18:56 Andrew: Listed as as one one of the testifying witnesses, um, and I I want you to talk about your testimony, of course you're listed. Uh, you testified on July 20th, uh, the same day as the craziest person that I went to law school with, uh, Kurt Levy.

0:19:05 Gabe: Amazing Oh.

0:19:14 Andrew: Uh managed to testify um and he was a loon back in law school I Right.

0:19:16 Gabe: Wow huh didn't remember, I didn'y, yeah, I didn''t realize that he testified that day, that's funny.

0:19:23 Andrew: Much agree with the insight that you brought, that sort of by bringing in mostly practitioners that distorts the voice, even if you're bringing folks who would otherwise want to kind of provide information that, that would you be favorable to, quote, our side. We discussed this on the show recently that like is, for example, not a groundswell of support among the American Trial Lawyers Institute for doing things like getting rid of peremptory strikes in criminal trials when it's obvious. Right. Like if you think about that for a second. Right. Getting rid of peremptory challenges would be a net social good. Right? Like it is it is clear, despite the Batson rule, that they're used in in ways to exclude people of color from juries.

0:20:12 Andrew: And the hypothesis is right, because, defense counsel, despite recognizing that they are unfair, they don't want to give up something that that is has been a part of their practice their entire lives.

0:19:56 Gabe: Yes yeah of course yep yes you gotta call them by their real name though, I think they're, they've rebranded to the american american association of justice justice right didn't they rebrand

0:20:27 Andrew: Okay. May be correct. This tells you, you know, the number of trials that I'm taking these days, which is it's asymptotically approaching zero. Good.

0:20:36 Gabe: There you same so you know all good that

0:20:44 Andrew: Good. Yeah. Well, one day there will be a year in which Thomas tries more cases than I do. But I'm

0:20:49 Gabe: That I'd like to say camera we'll get cameras in that court for that for that uh let me know just let me known

0:20:50 Andrew: Looking forward to oh, it. I'll smuggle one in. Right. I'm not going to get held in contempt. Rightly.

0:20:57 Thomas: A few in the court of musical opinions but

0:20:59 Gabe: Yeah sure

0:21:00 Andrew: So talk. Talk to us about your testimony. About it.

0:21:02 Gabe: So, so my, my testimony was based on two main areas. One area was term limits, which we'll get to, and that was really more the focus of the written testimony anyway. But the oral testimony was five minutes of me explaining why I think the Supreme Court and its justices need to follow the same type of basic modern governance rules that other branches of government already follow. Everything from having a code of conduct written down, beyond basic statutory recusal laws, a of details posted on the internet, like their finances. Justices file annual financial disclosure reports each year, but they're not posted online. They should be. Justices, three justices own individual stocks, and they're buying and selling them.

0:21:51 Gabe: And during the year, and their jumping in and out of cases, sometimes they're accusing, sometimes they're not, sometimes a misrecursal, sometimes, they forget about it. So having periodic transaction reports, like members of Congress, so we know a little more about their finances, I think would be incredibly helpful. So I mentioned that, and then also just having a better sense of what the justices are saying in public when they leave DC. They're flown all around the country, maybe not during COVID, but they're flown around the country to give these talks to law schools and sometimes partisan organizations. And there's no dedicated Supreme Court press corps like there is for the president. And I would love for the justrices, and for there to be pressure on the justices, to actually have their out of DC talks video recorded, or live, live streams, so we know what they're saying when they're outside of the marble palace. So, yes

0:22:41 Thomas: We know what briars is briars just that dog in the comic with everything on fire saying this is fine that's what bears can which sorry

0:22:47 Gabe: That's 100 he Says that all the time, he's he's, he goes on the Colbert Report and all these other, uh, late night shows, like he does, when he, uh, I think he just came out with the book and he, he's gone the circuit, and everyone's asking him why, he why he's not retiring, and he is giving a series of unsatisfactory answers, which is very much prior. Yeah.

0:23:07 Andrew: At At least is more consistent with the sort of historical practice of what it used to mean when a member of the federal bench, particularly a sitting Supreme Court justice, justice would speak to uh you high schoolers at civic groups at that sort of thing, they had, you know, because I did all of that, uh, that was, you, my lifelong goal when I was 12 years old was, was to be on the Supreme Court, um, I, I, yeah.

0:23:25 Gabe: How's

0:23:36 Andrew: Not not not great um now I vet dick jokes for a living so uh I took a slight slight uh detour um but uh well

0:23:35 Gabe: Going Slicy tour? Yeah, it's okay. I think that making those types of jokes, though, makes you more qualified for the Supreme Court now than at any time in recent history. So don't

0:23:51 Andrew: I'm glad that I've got got your vote yeah right But, but no, I mean, it used to be the case even when you a very conservative jurist would come to speak on a college campus, they, they had, you know, your stock set of, uh, non-partisan kind of civic engagement, like the classic was the, you know, uh, representative representative versus deliberative models of democracy. Right. Like it was just the, the idea members of Congress could come to college campuses or high schools and, throw bombs. But the idea that, you know, you would get from either side, direct discussion and political or legal advocacy was just, kind of anathema to that sense of, you know, decorum and dignity of the court.

0:23:52 Gabe: Give up on your dreams.

0:24:34 Gabe: Yeah, I mean, Justice Alito gave a whole talk railing against the shadow docket. And he gave a talk at FEDSOC during also, you know, both of these were not, well, definitely the talk on the shadow docket was not going to be live streamed. But then there's all this public pressure. And he's like, okay, I'll live stream it. But you have to destroy the video when I'm done and so okay

0:24:38 Andrew: Yeah.

0:24:53 Andrew: Tell a man from uncle or Mission Impossible. Right.

0:24:54 Gabe: Cool yeah It's all, it's just, so you know, it's so funny, there was, I was reading, it was actually in the presidential commission on this, it was on the SCOTUS commission's, uh, draft report, it was talking, it referenced that, uh, speech, and then there was a footnote to, you we'll update when, you transcript becomes available or something like that, and I remember taking a screenshot of it and sending it to one of my staffers, being like, there's no transcript, like, it's done, it is over, there's no recording of this talk, like he gave the talk, he railed against the shadow docket, it is over and you're not going to be able to, you read it back unless there was someone taking like screen caps the whole time.

0:25:31 Andrew: Yeah. Well, maybe now is a good time to introduce my thesis and ask you, feel free to shoot it down. Right. Like, yeah, you don't have to be that eager. But, and that is if one of, if not the major contributory cause of what we've outlined as the problem of partisanship of outcomes on the Supreme Court is the existence of participation in and control over nominees that the Federalist Society has. And shouldn't it have been disqualifying to have been an active member and cheerleader for the Federalist Society to to be on the president's presidential commission? Right. Like, great. You know, be, be bipartisan. Like, I got, I got a long list of, you unimpeachably conservative judges that you can put on your commission.

0:25:38 Gabe: Sure

0:26:23 Andrew: But but if if you're Jack Goldsmith and you go around and you tweet out, you know, thank you to the Federalist Society for, you know, the outstanding nominees that we've received for the past couple of years, that seems like that's kind of a problem. If that's the problem you need to fix

0:26:36 Gabe: Sure Yeah, go back and forth on this, right, because I feel like on the one hand you have 51 senators, or however, 53 senators, I think, at the time when Trump was president, who are also members of the Federalist Society, it's hard to think of of that as disqualifying, because that's going to be who they're hanging. It's a very small circle. And that's just going to be who they want to see on the federal bench, especially given that home state senators have such say, and they're going to nominate their friends to be federal judges. But, you take a step back and think about, you know, how we got to this point, point, lot of it is chicken and the egg, right? It's like, are we at this point because we've had a series of random deaths and presidents who aren't winning the popular vote still getting to appoint Supreme Court justices?

0:27:29 Gabe: Or did we get to this point because the country has totally become unraveled and our justices are just reflecting that? So, you, in terms of the solution, to me it's, which I think is what you're getting to, is to as much as possible take the politics out of the appointment process. Right, you're not gonna, I don't think that, you know, like I was studying, I, the the way that you appoint justices in Israel, right, and there's, you know, the American Bar president and the attorney general and three sitting justices and three members of the public all come together and like come try to find a consensus nominee. And of course, you know, if, you know, the right wing party is up, it's going to be more right wing, or if the left wing party's up, it's gonna be more left wing, but you have, you know, different sort of interlocking and competing constituencies that are all trying to come up with a consensus nominee, like that's not going to happen in the United States without a constitutional amendment anytime soon.

0:28:20 Gabe: So, you know, my my goal here is, and which was not what the presidential commission was charged with doing and not what they did, was to figure out, to say, okay, we have this problem, a lot of this problem is because our politics are insane, how do we get as much of the politics as possible out of the judging and out of the process of picking the judges, so that's something that I wish they had addressed more that I don't think they really did in their report.

0:28:43 Andrew: Yeah. From my perspective, is one sentence in it, it's on page 218 in Chapter five that says, the justices' participation in a broad range of educational and professional activities undoubtedly benefits the profession in the country. True. That's what we talked about. The justices must be mindful of appearances if they choose to attend meetings of organizations that have a political or other valence that could cause the justices' attendance to become controversial or cast doubt on their neutrality. And then there's a footnote 132. When you go to footnote 132, it references the thing that I think ought to be in more than just footnote 132. That is the internal debate.

0:28:43 Gabe: Yes it's and I Was I was like, the, I was, as soon as the opinion came out, I was like, good job, like, great opinion, great opinion. And of course, the opinion, so yeah, footnote 132 references this advisory opinion that a subcommittee of the the judicial conference, the policymaking body, the judiciary came up with it, basically said that it's okay if you're a federal judge to attend American Constitution Society events, attend Federalist Society events, but just don't pay dues and don't be a leader in the organization. And I read that as being like, oh, hey, we're going to save judges 20 bucks a year. That's cool. Whatever.

0:30:02 Gabe: I thought it was this totally anodyne thing. And then all of a sudden, Like the Ed Whelans of the world and the, I don't even know, the FedSoc folks of the world, the Jim Duffs of the worlds, who was the head of this, essentially nominal head of the judicial conference up until last year, decided to rescind it. It got up in arms and that led to it being rescinded. And it's just like, we're not telling you. And by we, it's this, whoever drafted this opinion, but you know, I like to try to take some, you know.

0:30:02 Thomas: Think

0:30:04 Andrew: Great non non non-binding advisory opinion number 117 on

0:30:31 Gabe: Yes. Holy crap. The the wall Street Journal like went like lost their collective shit over like don't don't run an organization that is obviously partisan, like, FedSoc says it's not partisan, ACS is like whatever, we don't really care what you say about us because we're not that influential yet, but like, it's obvious everyone in the world thinks the Federalist Society as a partisan institution, or at least when it counts, right? Like there's definitely, like, like the Fed's not debating society, and I've gone to, like, dozens of those events.

0:30:34 Andrew: Yeah right

0:31:02 Gabe: Because why not?

0:31:01 Andrew: I I have I I debated justin walker at a at an event co co-sponsored by the federalist society right like yeah so the so the folks out there you know who are you know have put up the like yarn and push pins about how Merrick Garland is a member of the Federalist Society? Like, no, no. No, he's not. Right. He's he's, you know, moderated debates that are put on by a subgroup that does, you Know, public kind of liberal conservative debates of the sort that I have participated in. Right? That was my response back was. Yeah.

0:31:04 Gabe: Oh, my God. Exactly. Sure. Yeah. Yes. Yeah. And have I.

0:31:34 Andrew: Yeah, right.

0:31:34 Gabe: No, exactly. Same.

0:31:35 Andrew: Yeah He's as he's as much a member of fed sock as I am right, uh, but but but yes, like, this, this draft, and I I love your save them twenty dollars, but like, this draft was uh designed to kind of figure out and and parse, and and not come close to that line, right, to say, hey, yeah, like, you can participate in speaking gigs, right, it It is just.

0:31:36 Gabe: Yeah. It's like, yes.

0:31:59 Gabe: Yeah. It was very Smart. It was a good thought out. It was it was very recent. I thought it was, you know, I opened it up. I was like, oh, this is, you know, how far is this going to go?

But I was, I just remember thinking the first time I read it, uh, whenever it came out, I think, yeah, February 2020 ish that was like just very anodyne, and just like, okay, yeah, there's been some questions about it, uh, opinion number, I don't think it was 116, but maybe like 114, 115, was like, we're thinking about coming out with this opinion, and no one raised alarm.

But then it's like a Wall Street Truth Journal, and you Zillow.com uh aficionado Ed Wheelan get wouldn't catch wind of it, and it's just like the end of the world, and it's, you're, you're winning, the histrionics are stupid, like you've won like you Won, like, this is not up is not down, you have won. This is like, very, again, very, very basic level of of judicial ethics, and it's insane to me that it got to the the point where it became a federal case. We're

0:32:00 Andrew: Yeah. Right. Right, right.

0:33:00 Andrew: Agreed entirely.

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0:34:14 Andrew: Let me ask you this. Made reference to the they were just called separate statements, but they're basically dissenting opinions. Two statements, one filed by federal judge David Levi.

0:34:22 Gabe: That's the one in like 18 point font so that's like the dead giveaway it's dead giveaway of whether or not you should take it seriously

0:34:27 Andrew: Yeah, it's in it's an aerial 18. Yeah. Thomas Griffith, again, two conservative judges. Griffith by the way authored the truly indefensible DC Circuit opinion in McGahn that basically was like subpoenas Like, why, why would you expect a subpoena to have official, you know, who are we in the judiciary to enforce a subpena I think was was in that opinion it was promptly reversed. On bunk seven to two Uh, which, you gives you some, uh, indication of of of the reasoning they're in. So Griffith, Levi, uh, wrote a statement, uh, Adam White, uh, and I said, I had a long rant about Adam White. He leads the Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason, um, that particular center or was founded by Naomi Rao, who then has gone on with distinction to become the dumbest and most partisan member of the D.C. Circuit.

So Adam White also wrote dissent, a, and both basically amount to, you know, it would be terrible to even contemplate packing the court or having term limits or doing anything any different. White's is, is what we should just ask justices to to be, be more ethical, and that's good enough. My question for you is, have a lot of pretty well-known

0:34:44 Gabe: Oh, yeah. Yeah. I'm bonk Yeah, yeah.

0:35:45 Andrew: Liberal activists on this court, including folks who, you know, are not shy about airing their opinions in public, right? Lawrence Tribe, Sherrilyn Ifill. Why do you think Do that the sort of pro-court packing side didn't issue their own kind of separate statements?

0:35:55 Gabe: Well they are they're starting to I mean Lawrence Tribe and former federal judge Nancy Gertner had a pro-court packing op-ed in the Washington Post. Kermit Roosevelt had one in Time. Caroline Fredrickson had one in the New York Daily News. I think they're just choosing to do it in other ways rather than an official statement. Because, I mean, frankly, and they're smart about it, like who's going to go to whitehouse.gov slash WordPress content slash upload slash whatever, where All of these, side statements are listed and versus every, you know, anyone who's, anyone's going read, read the Post or, you Time or the Daily News. At least here in New York, we read the Daily News.

So, so yeah, no, I thought that that they, you know, they did a smart job of moving from the pages of the White House website to the to the pages of public opinion to, you know, to op-ed pages and and I think also just from a decorum perspective, right, like, you know, this is the White House.

The White House is supposed to be neutral in this, uh, know, I don't think the commissioner necessarily needs to be in neutral, but this is a White House hosted report and the White Houses said it was going to be mutual on this issue of reform and it's going to, you let the commissioners do their work, so that's what they're doing.

So I think, like, having an own dissent on the whitehouse page is kind of like poor, poor taste, but whatever, uh, did, you know, those three decided to do it.

0:36:29 Andrew: Me?

0:37:15 Gabe: So, I KNOW, there's been a healthy back and forth between, you the liberals and, Know, what you constitutes a real reform? Is it terminal? Is it, is it court packing? Is it something else? That's going to continue. I mean, I Think, you Know, the challenge that I have with any of these reforms is that, you they can't happen fast enough. Uh, with, with court packing, which, you you know, I oppose court packing. I think the idea of adding four justices, just to add four justices doesn't automatically save Roe, doesn't automatically save voting rights. The Supreme Court historically hasn't been a progressive beacon, so if it's a 7-6 court I'm supposed to just put all my hope in that? No. And then it's not going to be a 7-6 court for very long. It'll be an 11-7 court when Don Trump Jr. appoints five justices in 2028. Or sorry, Nikki Haley appoints five conservative justices in 2020 uh yeah uh so so that to me is why court packing is just not not a real it's not a serious solution for problems that exist in the short term

0:38:01 Thomas: You just mean donald trump okay what is the serious solution then can somebody tell me me the serious solution that is at all feasible to fixing this problem how do we save row how do we save voting rights

0:38:12 Gabe: Sure yes so Okay, so voting rights, I think we're getting close on on a deal. I think there's, there's going to be either an exception to the filibuster, there'll be a carve out. I think, uh, Collins and Murkowski, uh, are sort of a insurance policy because they have said that they want to assist, you know, help on this. Murkowsky's co-sponsored one of the voting rights bills, uh, and I think she can get Collins if she hasn't already.

Um, and then, you know, Roe, I think that there, I mean, I think Roe's gone, right? I think that that's, Know, I think the the viability line of 24 weeks or 22 weeks is gone. And I think that, you know, you're going to have to go to, I think Dobbs is going to be the law, and you have to pass something similar to the Women's Health Protection Act, but do it in a way where it puts something called backup law into consideration.

So in other words, if you have a 15 week, ifyou say that,you know, abortions are illegal up until 15 weeks of pregnancy, if that is deemed unconstitutional, you know, I guess 14 weeks and six days, because you know, uh,

0:39:14 Gabe: Dobbs is 15 weeks for, if that is deemed unconstitutional, then automatically, uh, 13 weeks is in place. I correct

0:39:21 Andrew: The reverse of the trigger laws that Republicans have been using.

0:39:23 Gabe: Correct so You know, and if, and if that has turned down, if that was struck down, then a 12 week week. My wife is an OBGYN. I can tell you plenty of stories of women who were in their second trimester who got an abortion in their second trimestre because they were not physically able to get an abortion in their first trimester. There were a story of a woman in a homeless shelter who was being beaten. There's a woman who was sexually abused. These are the stories that I've heard over the years my from wife and just read it in the popular press. And that's harrowing. And those women should not be required, obviously, to carry babies if they don't want to, on the one hand.

On the other hand, there are thousands and thousands and thousands of women who are pregnant in their, in the first semester, after the first trimester, after six weeks, somewhere, you know? Six weeks, eight weeks, 10 weeks, 12 weeks that need access to care now, now need that to be confirmed, that that is a standard of care that they're going to be able to get matter what. And public opinion is, it's dicey in the second semester.

If public opinion is a part of this, and it is because the public elects the representatives who would pass this law, it's, you know, I support abortion in the 2nd trimester.

0:39:39 Andrew: Yeah.

0:40:32 Gabe: Public opinion is sort of mixed there. It's very popular in the first trimester allow abortions for almost any reason, but the second trimester, it gets a little dicey. So I think that having some sort of, at least for right now, I'm not saying what should the law be in the long run. Obviously, I Would like for Roe to be codified in the long run. But I'm saying right now, where the conservative movement is ascendant in state legislatures, I think we're way better off with a federal law that says we're okay to 14 weeks and six days than just let a bunch of states have six-week bans, which is what's going to end up happening.

And I hate it when it's three dudes talking about abortion I just have to say that but you know I feel like you Know, based on what I've studied, I feel I and this is, you know, my own opinion, and it's probably I want to take into consideration other, other views, but I think the goal here is to do the most good for the most people, and codifying as much as we can right now while there's still a democratic majority would seem to me the smartest path, and then with the hopes of, you know, electing folks that want to expand on that right

0:40:49 Andrew: Yeah right yeah we we we hold yeah I think

0:41:32 Gabe: In the future.

0:41:32 Andrew: I

0:41:33 Thomas: None of that involves fixing the court, that's sidestepping the court, right, I mean that's so there is no fixing the card so If the if the downside of packing the court is that you don't think it's going to fix these issues, and your solution to fixing these issues has nothing to do with the court anyway, then I don't see a downside. So I think for me, I would still wonder what is the actual downside of court packing. I see it as the only possible thing. It's not going to happen anyway because of the Senate, the bare majority we have.

But like, if I could wave a magic wand and do it, I would, because the pressing um emergency that is Roe being taken away and voting Voting rights being not protected, gerrymandering being allowed, and all that is so important that getting that short term victory, which, you know, even if it is short term, getting that would perhaps allow us to protect electoral victory going forward and protect voting rights going forward, which which would protect us against a swing the other way to Republicans to being able to, you counter pack the court, I guess.

0:41:36 Gabe: Yeah, exactly. Thank you. That's exactly. So, Yeah, I mean, maybe in an ideal world, like that's not there. The votes aren't there. There's three senators right now who have gone on the record to support expanding the court, Warren, Smith, and Markey. And so, you now, and four more came out today saying that they would never support I mean, obviously that could change because they're politicians and politicians always change.

0:42:53 Thomas: Yeah we're it's not happening so I

0:42:55 Gabe: But exactly. So what can we do with what is popular and doable and not, you going, it problem with, to me, one of the problems with core packing is that it is often couched as a sort of a fix all, as a single solution that could fix all of these things. And theoretically, it could. But don't think that we could get to that point where that is possible. So in the meantime, while we don't get to the point where there hasn't been a Democratic majority on the Supreme Court since 15 years before I was born, but the point being, and I'm not two, so it's been a very long time, think we need to think creatively about all the things that you need to do and are feasible between now and this. Quote-unquote democratic future, liberal future, whatever, in order to get there.

0:42:55 Thomas: Guess wait

0:43:42 Gabe: Because otherwise, it's just... sure, maybe you can try to do both, but to me, it is exactly... The point of Fix the Court for a very long time has not been to fix the court. It has been to kick Congress' ass into understanding that they need to actually take the reins back in our constitutional system and enact laws that will end the juristocracy so we don't have, you six dudes or thank you uh uh five dudes in robes plus Amy Coney Barrett, so six people deciding what the law is. Right, I want 435 people, 535 people, maybe throwing the president there, president in there, and Eleanor Holmes Norton because she's nice, you know, so we're up to 537 people deciding, deciding what the laws are, not not nine uh who don't represent the people in any way, shape. So it's let's fix the court these days, then explain to the American people why Congress has a role in reclaiming its power.

0:44:05 Andrew: Like that word yeah Thomas had a little bit of an advantage there because your argument against court packing is the argument I made to him in 2017. Right. It is it is a position I long defended for precisely those reasons, the kind of institutional retaliatory, you know, everything that you said is a thing that I have said in public. And then I watched, a disinterested, criminally insane game show host turn over the judiciary to Leonard Leo and and appoint where the soul, particularly in the second half of Trump's term, appoint individuals to the federal judiciary where the sole criterion was absolute fealty to the conservative agenda.

Up and down the line was, you know, a willingness to lie in public and in private in defense of that agenda. And, you know, we talked we about Justin Walker. So but but in no sane society should an Amy Coney Barrett be on the Supreme Court. it'S it'S repugnant. And so, you know, so I've I have moved from, yeah, this is probably disastrous in the medium to long term, which I still believe. I agree 100 percent with everything you've said. But the short term is just such a is just such a problem that I don't know we get to the medium

0:45:31 Gabe: Yes, we did.

0:45:53 Andrew: Term without it.

0:45:53 Gabe: Well, yeah, let me suggest a compromise. So the Limits bill that I advocated for the commission and that I worked with members of Congress on introducing both last Congress and this Congress would limit the terms of future justices to 18 years, right? So you get a new justice every two years, nine justices most of the time, nine times two is 18. So that's how the math works out. One way to implement this bill, and actually the way it was written and introduced in Congress, is that justices are appointed upon enactment of that bill. So if that bill is enacted in an odd-numbered year, well, it actually doesn't even matter because it's two per term. Right. So if that bill is enacted tomorrow, Joe Biden gets a justice immediately.

0:45:56 Andrew: OK. And

0:46:42 Gabe: Right. He doesn't need Clarence Thomas to retire. He does it needs Stephen Breyer to to retire, he gets a Justice year, and he gets adjusted in 13 months from now in 2023. So that's already two more justices that that you're getting. And I know it's not as drastic. But again, this is, you term limits generally is is a more very popular proposal.

And over time, having justices serve for a time and not seemingly all time, I think would reduce their power, lower the temperature, lower The Stakes of Confirmations. And because a new justice is added every two years, I thinks you'd have justices ruling between the 40-yard lines, which is where we want them to be, I thin. Even Elizabeth Warren Warren today said something about how, you know, she wants a moderate Supreme Court. Having that turnover coming every two years, you know, justices have giant egos. They want their opinions to stand the test of time. So they're not going to have these outlandish opinions. And then having just, you know, this whiplash where we're going back and forth every two years, I think they try to move the law more incrementally. And I think that would be better for our democracy. But, you know, to your point, this bill would, little bit of a compromise from doing nothing and so

0:47:48 Thomas: You can do that via bill we're

0:47:50 Andrew: Well, hence the question, right. How does this pass, uh, the uh, article three muster that says that that the judges must serve for life? I have a thought, uh, so well no first I want to hear your argument great

0:47:52 Gabe: That's the other yes yeah what's thought sure So, so there's several arguments about this, and uh, you know, so I'll just give you three arguments that are, that are my favorites, and they're dozens, but the three that I like the most are, uh, number one is, uh, article three of the Constitution said the judges shall I'll hold their offices during good behavior, right? So you have an office of Supreme Court justice. That doesn't mean that the duties of Supreme Court offices can't change.

So, right, for the first 130 years of the federal, uh, judiciary, you had federal judges. And then, all of a sudden, in about a hundred years ago, Congress is like, "No, we want senior judges." So all the old judges can go into semi-retirement, and maybe they'll work only a quarter of the time. And then they were working a quarter at a time to help out the business of the courts. But, you know, they're going to essentially be deemed semi-retired, meaning that they can be replaced, right? So if a judge takes senior, like when Tom Griffith, Supreme Court Commissioner, took senior status, he was replaced by Justin Walker. And of course, he Was replaced several months before he took senior service. Walker was confirmed, I think, in June, and, you didn't retire for several months later, but that's a whole other, you know, Mitch McConnell special that we don't need to go into right now.

But Congress has has changed the roles and duties of federal judges in the past. And I think they could similarly do that with Supreme Court justices saying, after 18 years, you're still a Supreme Court justice, but you're not counted towards the nine justice quorum that hears cases. You can come back and hear cases if, God forbid, two justices die tomorrow in a car crash. You can be the ninth justice or the eighth justice.

0:49:36 Gabe: But for the time being, you are going to hear cases on lower courts, much like David Souter did after he retired, in, um, 2009, and Sandra Day O'Connor did after she retired in 2006. So there's this precedent for that. Uh, the second thing is, uh, the Constitution is whatever five dudes and robes say it is, so what's to say that anything is unconstitutional these days?

0:49:56 Gabe: And then the third, the argument that I like to put forward is, when you think about creation of the courts in general, Congress has a lot of leeway, right? There's, Congress can create lower courts. It can set the budget. It can make judges file annual financial disclosure reports, courts, it has a lot of power to impact the rules of the road for the federal judiciary. So just like the Congress sets their salary, and the salary can't be diminished, but it sets their salary, it sets where they sit, when they sit, what cases they hear. This is just another institutional concern that Congress can set based on its history and tradition of doing that. Sure.

0:49:56 Andrew: I'm going to give you argument number four uh and uh let me let Let me know what you think. This This is an experimentation based argument and it would suffer from the same defects as article number as argument number one, which I think is the strongest one that you made. And that is that it well, yeah, but but also but also the the Congress has power to me has textual support because the the clause in Article three, section one, after the judicial power shall be vested in one Supreme Court, then is comma and in such inferior courts as the Congress may from time to time ordain and establish. So, if I were arguing against the Congress has broad authority, I would say, yeah, Congress has broad constitutional authority to constitute inferior courts, not to mess around with the Supreme Court. So, like I the division of duties. The problem with the division of duties argument is the same problem with The Argument that I'm about to give you, and that is I don't think it could work retroactively, right? Like, I don't think it can do anything

0:50:39 Gabe: Okay oh yeah that's definitely the strongest one the the the constitution is whatever five dudes in robes say is more of a joke one but I like it

0:51:36 Andrew: Thing about the current composition

0:51:37 Gabe: So yes so that's why we keep justices thomas and justices and justice briar and that's Why we have 10 just

0:51:37 Andrew: Yeah um yep then justice barrett will be on the court after my son is dead right like she's obviously going to live to be 115

0:51:44 Gabe: Correct she is and so yeah so that'S another look people will come back and say look we want Ketanji brown Jackson on SCOTUS for 50 years, and I'm sorry. And it's like, okay, that's cool, but you only get her for 18. And she'll be replaced, hopefully, by somebody just as awesome as she is. And so that to me is, just because you happen to have these legacy justices, there's otherwise, there's no other way to implement it, right? If you keep like when this bill was, a version of this bill, was initially thought of, the last clause was this bill shall be implemented when when the last justice who's on this court at the time of the passing of the law is no longer on the court. So basically it's like, you know, and that was like,

0:51:50 Andrew: Yeah yep yep oh gosh right yeah a

0:52:27 Gabe: You know. That was like two.

0:52:28 Andrew: Century from now that's great

0:52:30 Gabe: Correct. So.

0:52:30 Andrew: Yeah after after the after the uh the arctic ice shelf has melted and we're all living underwater okay so Very here's here's my argument, procedurally, uh, you nominate, you create a separate lower court, you nominate uh these judges to that lower court, call it whatever you want, and then they sit by special assignment to the Supreme Court for only 18 years, special assignment Going down, right, is a a well-established practice, um, and so I think it dovetails with the duties argument and might survive, uh, constitutional muster, because you're not decreasing any promised powers uh of anyone appointed to the federal judiciary, um, which would be the, I think, the strongest argument deployed against argument number one, which is Congress can't, serving for life means serving with full powers, rights, and responsibilities, so you just make it clear from the outset, yep, you're being appointed to this lower court and you're serving on loan to the Supreme Court for 18 years.

0:52:36 Gabe: How?

0:52:54 Gabe: Interesting.

0:53:27 Gabe: Great. We'll, we'll, we'll add that into the third version of the bill when it comes out in 2023.

0:53:29 Andrew: So there you go.

0:53:30 Thomas: It resolved yeah Well, we solved it just

0:53:34 Andrew: And again, I want to emphasize I like your approach because it it is I like you're approaching arguing for this on the show. Right. I'm still going to argue, from everything I can to try and stop this current nightmare of a court. But I think that the I pitch of this represents a real effort to compromise. It to me that has a lot of, that appeal in, you know, once once we get out of kind of our own echo chambers. So thank you for articulating

0:54:06 Thomas: For everybody listening, um, is the overall message then that this SCOTUS report was pretty useless, um, doesn't really do anything, is it worth reading these 294 pages

0:54:15 Gabe: Yeah. It's No, I wouldn't, you know? I don't think it's worth reading it. I mean, I think there's some interesting points of comparison, one era versus another era. You do learn things, which I guess is always a positive thing in this world, especially nowadays. I didn't recall Frederick Douglass' speeches Against the Dred Scott decision. They were really, I mean it's Frederick Douglas, obviously they're going to be incredible. But the fact that that was cited, and I don't know if I learned that in my single sex, pretty much all white high school in Tennessee. I just didn't know about his reaction to Dred Scott. I think that that's like, so there are like these little vignettes like that, that I think really interesting and powerful. But overall, like the fact that there was not a clear delineation of what the problem is, and they wouldn't even go far as to say is like, you know, we need live streaming now or we need a code of conduct for the Supreme Court. It's like, it has been suggested that there might be a codeofconduct and that would might have some salutatory

0:54:17 Thomas: Yep

0:54:36 Andrew: Here here.

0:55:16 Gabe: Effects, like, no, just like, know you're not supposed to give quote unquote recommendations. Clearly, you're never going to say packing is good, packing is bad, term limits are good, term limits are bad, but sort of basic modernization reforms that sort of everyone's on board with. It would be nice to have this coalescing around, like, at least a couple that, you are not in the footnote, like the one that we talked about with the FedSoc speeches, but are out in the open so that can then advance the debate on sort of the tier two things that I work on in a more positive way. I

0:55:50 Thomas: Good note to go out on. Gabe Roth, thanks as always. Uh, fix the court, wait, dot com or dot org? I sure yes

0:55:55 Gabe: Think it's both, I like the .com just because I don't know, I bought the URL it should be Quartz because I do almost as much with lower Quartz but I don's know man, it was like 2014 was a long time ago and I didn't really understand internet back then and we only became an official 501c about 10 months ago so fixthecourt.com slash donate is a thing I don't know if I can even say that Thomas but there you go

0:56:07 Andrew: Ha, ha, ha.

0:56:19 Thomas: Gabe roth fix thecourt.com and slash donate uh if you're feeling extra generous um thanks so much for coming on uh great guest as always and uh yeah we'll continue to debate among options that are likely not going to happen anyway so awesome

0:56:26 Gabe: Yes. Thank you, Thomas. Thank you, Andrew.

0:56:34 Andrew: Yeah.

0:56:35 Gabe: Happy to help.

0:56:36 Clip: And thank you, Let's go!

0:56:38 Thomas: And now it's time to thank our Hall of Famers, our all-time greats. And we are using the quintile method this month. We are thanking you roughly 36 at a time. And so why don't you start us off, Andrew?

0:56:52 Andrew: Thank you, too. This is not the greatest patron name reading system in the world. No, this is just a quintile. Hey, thanks. Hey, that is a fantastic recurring shout out. And and we will take a look. We're still trying to figure this out.

0:57:06 Thomas: Well, and a tenacious D shout out, of course. Fantastic.

0:57:08 Andrew: Yep, Of course. April Poff. Liam Appleby, J Owen, every chance I get, in fact, I'm doing it right now. Uh, said I could be anything, so I became someone who remembers to change their Patron name once a month. Can we all just take a moment and appreciate how much Thomas's intro music absolutely slaps? Yeah, that's definitely worth doing. Learned Hand job, that'll never not be funny. The Dows, Dallas D.A. John Cruzo owes justice to Diamond Ross Heath, and Eli's tickle fights, and HJ's. All right, Jake. Big Gay Boner, I see, Seattle.

0:57:37 Thomas: Oh, I thought you just owned that. Like you didn't even care. Yeah, big Gabe owner. Sure, fine. Nothing wrong with that.

0:57:46 Andrew: Yeah, right, yeah, Seattle Peat, my employer evenly added an MBA clause after years of active employment under under threat of job termination. Brown Philly live show 2022, I'll bring the cheesesteaks and Beyond Meat. Oh, look, just for you to the fully stocked basement bar on Platinum night, yeah, we're gonna have to do Philly, that's just that, that's, uh, that's clearly something

0:58:01 Thomas: God, I'm so there. So there. It was looking like we were almost there until this latest variant. Now we're further away, but we'll eventually.

0:58:11 Andrew: Yeah, yeah, Lawful Copter says hello, and thanks for all the fish, and OA live show in Sydney, Australia, please, I won't be vaccinated till October at the earliest, thanks government. Yeah.

0:58:21 Thomas: That too. You know, we still didn't get an update. I asked for an update, so I hope everything's okay over there down with your vaccination. Yeah, let us know. I'm actually curious. It's been a long patron name. I'd be curious to know what happened there. You to the coin is rigging T3B with a Chinese thermostat controlled by an Italian satellite. A cliched, ditzy or sore klutz is an anagram for Ted Cruz is the Zodiac Killer.

0:58:27 Andrew: What

0:58:51 Thomas: Wow. Darth Mandy Vance. Judicial review is the original inhabitant of the constitutional penumbra. How do originalists justify that doctrine? Yeah. Sotomayor or Kagan made that very point recently. Yeah. No, we don't even get to have Marbury v. Madison under their view, but that's fine. Robert MLU, thick penumbros, you make the legal reasoning sound got it, finally took me like 14 tries, doesn't normally take me that long, exactly Bob Blah Blah's Law Podcast.

0:59:03 Andrew: Yep. Nice. Well, queen reference there, you know,

0:59:24 Thomas: Ball Arena live show, Paulie Hernandez, these are just simple farmers, people of the land, the common and clay of the new west, you know, morons, murderous crows, the impossible Hamburglar, Jason Copas, yeah, I do love it, should be my costume for Halloween, or something, you know, Jason Gopiz, crime or no criming. Hey, Arizona, support Aaron Lieberman for governor. Jurisprudence fetishist gets off on technicality, that's never not funny to me, and Ian Hamilton, thank you, so, so much, top patrons, for making the rockin' world go round, as the Queen song goes, that was referenced.

0:59:37 Andrew: The impossible is really good. Oh,

1:00:03 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:00:09 Thomas: Right, and now it's time for T3b answer time. Andrew, all right, lay it on me, how to do

1:00:15 Andrew: So this was, man sues his boss in state court, he has both state and federal claims, uh, and uh, the man's friend says, hey man, why did you sue him in uh state court, you should uh remove That To federal Court.

1:00:26 Thomas: Federal court is all the rage these days, yep,

1:00:27 Andrew: Yeah, because the federal, look, the federal court's gonna love your case, you'll be a lot more sympathetic to your claim, so he does that, uh, and then, uh, the boss, the defendant, uh, remands, it makes a timely motion to remand back to state court. How will the federal court proceed? You did the thing that I love, which was, uh, eliminating uh both of the remand answers, and and went to choose between it will hear the federal claims but not the state claims, or it will here the entire case because it was timely removed and involves a federal question, that's the B answer, and that and the principle that you were struggling with is a principle called supplemental jurisdiction, which you explained 100% perfectly in giving your answer, right? It is the idea that in general, like it doesn't make sense to have two different lawsuits about the same conduct.

1:01:15 Andrew: And so the federal court, if it has the jurisdiction to hear the federal law claims and the state law claims are related, can exercise supplemental jurisdiction over the state law claims, and that shouldn't be that surprising, right, federal courts hear state law claims all the time in diversity jurisdiction, right, and speaking of diversity jurisdiction, you 100 eliminated the attractive distractor C of, it will remand the case unless the amount in controversy exceeds 75,000, that is a diversity requirement, this is a federal question, he's got federal employment claims. So, uh, the, only question then is, uh, is there any basis for remanding the the case back to state court, that would be answer D, and the answer is, there is, this is, this is meant to trick you, here's what happened, and you and you even express this in uh describing your answer, which is the plaintiff is master of her complaint, she can file it in, this case he can file whatever court he wants, but the right to remove is only a right that is reserved for the defendant. Once

1:01:46 Thomas: I love it yeah oh really

1:02:17 Andrew: You file, yeah, it's just, it just has to be what the removal statute says. Right. Um, so, uh,

1:02:17 Thomas: Really? Oh, so once you filed it, it sticks. You don't get a redo.

1:02:25 Andrew: Yeah, you filed it in the state court. You're like, man, that's not a, that'S not a you could, you could voluntarily dismiss it, uh and then file the case in federal court. Right? But a plaintiff, may uh not remove the case to federal court thus the court will remand it and we'll say this was improperly removed does not fit the criteria of the statute. This is a tricky one because the legal analysis, like I said, you did it exactly right, uh, if this was

1:02:27 Thomas: Yeah, that's that's fair. OK. Yeah.

1:02:51 Thomas: It's just a rule I need to know as a lawyer, you know.

1:02:52 Andrew: Yeah, it, you know, it's Section 1441, uh, there's some weird uh of tricks and turns to uh, uh Removing a case to federal court. And one of them is, it's a right that the defendant has once the plaintiff has chosen a particular jurisdiction. The, the ironic thing is, like, probably the defendant would have removed it to federal court anyway. If this were a real case and you're like, oh, damn it, I meant to file that in federal court, here's, here's the remedies that are available to the plaintiffs. Number one, you do nothing and see if the other side answers in state court, or, or simply removes, uh, and then if they remove, you get what you wanted, uh, and if they don't, then you just voluntarily dismiss out the case and refile in federal court.

1:02:59 Thomas: Yeah.

1:03:33 Thomas: That doesn't affect your federal court chances. Ah, well. All right. Well, this is what separates the actual law people from the Thomas's. I do my best to make guesses, but this is just a rule that I assume I would have known if I was a lawyer.

1:03:36 Andrew: It does not, that there was no way yeah, there's... there's no way to to have gotten it and I bet lots of real lawyers got this one wrong. It

1:03:51 Thomas: Hard to puzzle that out. Oh, okay. Well, we'll see. All right. Well, disappointing. That D, definitely I entertained that possibility, but I didn't quite get there. All right, well, I lost.

1:04:05 Andrew: It that's part of what made this sneaky, because if D had given any any indication of the reasoning, it might have helped clue you in like you might have. Yeah. Who knows? But and

1:04:13 Thomas: Probably, yeah. Oh, well. I got it wrong. Let's find out who our big winner is this week who got it right. And I'm doing T3B this week, Andrew's traveling, and I have the pleasure of looking through some great answers. I think it's really cool that you guys play and use the hashtag T3Be on Twitter. Really good ones this week, I think people were pretty sympathetic with me because this seemed to be one where you just have to know the rule. I'll pick great a one. There's many to choose from, but but Russell that's at One True. Russ said, "Answer is D, just finished Civ Pro. And I didn't learn anything about a plaintiff removing their own case. Maybe our plaintiff shouldn't take legal advice from his lawyer friend who I suspect may also be counsel for John Eastman." Fantastic. Fantastic. That's a great answer.

1:05:02 Thomas: You nailed it. I didn't, but I appreciate all the great answers. It was fun to look through them. So keep those coming. I It's could have picked so many good winners, but the winner is at One True Rust. Give them a follow on Twitter, and thanks for playing. And that's our show. Another thanks to Gabe Roth of FixTheCourt.com. Go check it out. And we'll see if the court ever gets fixed.

1:05:26 Andrew: We will indeed.

1:05:29 Thomas: We'll see you next time.

1:05:31 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:06:05 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.