 special guest today, former Richardson Law School Dean and Constitutional Scholar Ave. Sofer. Hello, Ave. How are you? Very well, Jeff. Good to see you. Our topic today is the United States Supreme Court, 2023-24 term, and Ave and I will be discussing five or six of the most important cases to come up before the court this year, many of which, if not all, are going to impact folks here in Hawaii either directly or indirectly. But first, Ave, I thought we would start with an issue that's been permitting the court for the last couple of years, and I think they go together. One is an increasing lack of respect for the court, and the second is ethical issues regarding the court and the fact that the Supreme Court doesn't have a code of ethics. Do you think those two things are somehow combined along with some of the more controversial decisions of the last two years? I think absolutely they're connected, and I think it's pretty shocking that the Supreme Court doesn't have a code of ethics, and some of the justices don't seem at all attuned to ethical problems, and that's a real problem. The journalist has done a great job in exposing, in particular, Justice Thomas, but also Justice Alito, and the things they didn't and didn't file, mostly didn't file, and it's, I think, permeating, as you said, the public regard for the court. It is not from what they're doing, and that is also perhaps somewhat inside baseball. No offense, Jeff, with the Dodgers going down, but I knew you're going to get that in somehow, but at least they made the playoffs unlike your Red Sox. Wait till next year, as the Dodgers used to say back in the day. They say it every year now. So they don't play by the rules. They don't care about the rules, and I mean the legal rules. They just, if they want to reach a result, they get there. They steamroller through the things that used to be constraints. There was a time when people talked about an activist court that was a big criticism, and the justices worried about it. They worried about when they should defer to other branches, when they should defer to agencies, when they should defer to states and state courts. These folks don't seem to have any deference to anybody. Well, let's talk a little bit more about this. I mean, what role should Chief Justice Roberts be playing regarding the ethics situation? It just seems that he has no interest in attacking or even looking at that, as more and more journalists are exposing more and more questionable trips and gifts, particularly as you say with Justice Thomas and his wife, who apparently are impervious to all of this. Well, I don't know if they're impervious, but he's got nine very independent folks, eight others, and it's really hard to line them up. And I'm sure he's run into some temper tantrums. If he's tried, I'm not sure how hard he's tried. He sees himself as a centrist, but he really isn't. He's very much a right winger. And sometimes he is willing to not only bend the rules, I would say, in terms of his opinions, but actually just act slick. So how much respect they have for him, I'm not sure. But trying to rein them in is close to impossible. And they've all become much more independent of one another because of technology in part. But also they have a lot of clerks. And so they used to, the clerks were kind of a back avenue to talk about a draft opinion or something. They don't seem to spend much time worrying about what the other justices are saying or doing. As they have their ceremonial shaking of hands and some antique ceremonies about who answers the door and things like that, but they don't seem to be talking to each other very, very much. Well, as a constitutional scholar, do you think Congress, and we're talking about separation of powers, do you think Congress, if they were so inclined, could statutorily impose a code of ethics on the Supreme Court? Well, they could impose it, but who would enforce it is really the problem. But what Elito... Well, they don't enforce their own rules. So we know that. What Elito said, Congress has its own problems. But Elito recently said that they have no role, no control over the Supreme Court. That's absurd. I mean, that's just on its face, absurd. And they have a lot of things to do, including the budget of the court, which is one of the reasons that Robert is sort of pulling his punches somewhat sometimes. But Congress is in gridlock or worse. And the court is just merrily going along and reaching the results they want to reach, no matter how recent a precedent, no matter how well argued an opinion is, without much checking. I would say there's an exception to that. And I think one can look for slivers of hope. I'm still teaching constitutional law and trying to do it with a straight face. It gets harder and harder to convince people not to be cynical. I don't think one ought to be cynical, but there is some hope in the newest Justice, Justice Jackson and Sotomayor as a force together, sometimes joined by Kagan, who's written some zinging and very well done dissents. And so the long game, the problem with the long game is that many of these newer justices are quite young. But I think that I think we get to some specific cases. I want to ask you about two things. Yes, you mentioned precedent, which some at least for some time was important to the Supreme Court. It seems that the Supreme Court doesn't believe in precedent. Well, what they're doing, one of the reasons I say they're being sort of slick is they don't even mention the precedent sometimes. They certainly don't bother to overrule precedent. So in the affirmative action cases, North Carolina and the Harvard case, there were precedents out of the University of Texas in the teens. And they just sort of went right past them. It didn't matter that there had been precedents at the court before the change in personnel had decided very differently. Well, same thing with abortion. Absolutely. That one wasn't one could say an older precedent, although that's an exaggeration in a way because Roe versus Wade had been very much trimmed down over the years. So it really wasn't the old Roe versus Wade that they overruled, but they overruled a whole bunch of decisions, including some recent ones. The precedent was Roe versus Wade, but there are a bunch of others they ignored too. Let me ask you about what used to be the compatibility of the justices. The dissents were mild. The majority opinions were not critical of the dissent. It seems that even though on the surface they may pay paddle ball together, there seems to be a total breakdown of that kind of attempt to be kind in many of the decisions, both in the majority and particularly in the dissents. Well, I think that first of all, they weren't always kind, even when they had started on the same side. Justice Black and Justice Frankfurter went after each other pretty directly, but not in the same kind of hominem way. I think you're right about that. They really are taking each other on and splitting opinions. When John Marshall became the Chief Justice, the tradition in England was every justice wrote, every judge wrote. It was seriatim opinion. So a lawyer had to sort through and see where the common ground was. Marshall introduced the notion of majority opinions and hardly any dissents when he was Chief Justice for over 30 years. Now, even in the majority, I concur in those two parts of your opinion, but not that third part and then so you line them up and get four justices on one part of the opinion, three on another and so on. And that's just not necessary and they're not taking the time. And the irony is they're taking half as many cases as the Warren Court. They're also writing longer. Sometimes it said a clerk has worked on this case and okay, I feel that I should as a parting tribute for a clerk, I'll put something in as a concurrence. Well, that's not actually a good way to run things, even if it's nice for the clerks. Let's look at some of the cases that are coming up this term and are greatly going to influence all of us. One of the most significant is the Second Amendment case regarding the domestic abuse or gun restrictions that were put in place that a federal appeals court has invalidated a federal law that bars an individual who is subject to a domestic violence restraining order from possessing a firearm. And one of our favorite unbelievably right-wing conservative appellate courts, which has a number of its more bizarre opinions up at the Supreme Court invalidated that statute claiming, quote, it is an outliner that our ancestors would never have accepted. So this is another gun control bill. We've seen what the Supreme Court has done in basically eliminating almost all restrictions on guns, handguns, et cetera. What do they do with this statute? Well, I think it is so shocking that it would, if they invalidated it, that they might not do that. But they have been very coy about what restrictions might be constitutional. This one, you know, looks so basic that it's hard to imagine, but they've done some other almost unimaginable things. I gotta say the Second Amendment, it's important for people to understand had never succeeded as an argument for gun rights until Justice Scalia in 2008 kind of discovered it. And the court had had over a hundred years of people raising that claim and rejecting it over and over and over again. And he did it by saying, oh, the Second Amendment, which is short, naturally has two clauses. Well, that naturally doesn't belong there at all. But it allowed him to say, I only wanna talk about one of the two clauses. And that's about where he found individual rights. A few years later, they applied that to the states and they began saying, boy, this Second Amendment, it can't take second place to any other rights. You know, it's the right to protect yourself, but of course it's not just protecting yourself, it's the right to carry concealed weapons and so on. They now say history and tradition are what we should be looking at. And so as you said, Jeff, they're gonna look at the history and tradition in theory, but what they'll discover is women didn't have rights. There wasn't protection from domestic violence. So what are they gonna do with that? And they play fast and loose with history and tradition all the time, particularly in the abortion decision, but you put the abortion decision alongside one day away the New York Rifle and Pistol case. And in one, they're saying, oh, we gotta leave these things to the states. In the other words, they're saying, oh, we can't leave this to the states. We have to invalidate Roe versus Wade and it's the subsequent cases. I was gonna say it's progeny, but I guess that doesn't work well with abortion. There's a whole series of cases, some of which the court has already ruled on, one was for just to argue this week, and that deals with racial gerrymandering in many of our states. And the case that's up before the court now is South Carolina. I find the facts fascinating in that South Carolina basically admitted the person who devised the map testified that he was instructed to make the district quote more Republican leaning close quote, but he did not consider race. He did acknowledge that he examined racial data after drafting each version and that the black voting age population of the district was likely viewed during the drafting process. Well, a three judge district court panel struck down the plan in January saying that race was the predominant motivating factor. What are your predictions on what they're gonna do? They already struck down one, obviously gerrymandered district, but what do you think they're gonna do with this one? Well, so they've created this dilemma for themselves because a few years ago, Chief Justice Roberts writing for the court said if it's partisan gerrymandering, oh boy, that's complicated. We've never succeeded in figuring out what to do about it. So we just won't allow partisan gerrymandering cases to go forward in the federal courts. They can go forward in the state courts. However, the Voting Rights Act still has some pieces left even after what Roberts did to it in Shelby County. And so this case is different from the Alabama case you were referring to. In the Alabama case, it's a Voting Rights Act violation. And it's easier to prove under the Voting Rights Act. This is a straight 14th Amendment case. And so it gives them room to distinguish what they did in the Alabama case. And they have been inconsistent to put it mildly with whether motive matters or doesn't. And motive, of course, is an easy thing to manipulate. What counts as the motive of a group of a legislature, for example? So they've been manipulating away. So I'm not optimistic. I was sort of pleasantly surprised that they upheld the three judges, Trump appointees in the Alabama case. Alabama then really tried to defy them shades of governors standing in the school in the doorway. And said, and the governor of North of Alabama said, the people of Alabama are better understood by the legislature than they are by federal courts. And yeah, that's why we have to have federal courts and a federal constitution to say you can't use race. So the complication for them is there is overlap, of course, between racial voting patterns and partisan voting patterns. Yeah, that's what I was going to ask you. Is there a distinction between gerrymandering based upon race and gerrymandering based upon political parties? Well, there has been an attempt to do that. And we'll see if they go for it or with it. So in the context of that is even Frankfurter, who long ago warned about getting into reapportionment or malapportionment cases. He called it a political thicket. And he said the court shouldn't get there. Even he wrote an opinion out of Alabama when they had gerryrigged a 28 sided definition of the municipality in order to exclude virtually all the blacks. And he said, you can't do that. This uncouth 28 sided figure shows that you're using race. So if you can prove it, then race is still distinct from partisan gerrymandering. But I think it's absurd for the court to have said, and Kagan wrote a vigorous dissent that, oh yeah, there's a right here, the right to have your vote counted and the right to vote. But we're just, you know, that's too complicated. I mean, they don't generally do that. And they get into a lot of complicated areas and they don't punt. And Rucho is the name of the case out of North Carolina. And that's what Robert said. We're just not gonna look at it. Federal courts shouldn't look at it. Well, there's a whole series of cases before the court in an attempt to minimize and in many cases eliminate the powers of administrative agencies. And we've seen in the last two terms that this court is not hesitant about making it clear that they now believe that administrative agencies, EPA, and we'll get through some of the others, have too much power. They have no constitutional right to set rules. One of the more interesting cases concerns a herring fisherman. And in the latest attack against the so-called administrative state, the justices are considering whether to overturn decades of old precedent to scale back the power of agencies impacting how the government of a tackles issues such as climate change, immigration, labor, public health. And this case concerns an appeal from a herring fisherman in the Atlantic who says that the National Marine Fishery Service does not have the authority to require them to pay the salaries of government monitors who ride aboard the fishing vessels. The justices say they will reconsider a 1984 decision, Chevron versus Natural Resources Defense Council that sets forward factors to determine when courts should defer to a government's agency interpretation of the law. Your prediction on whether they're gonna find in favor of the herring fisherman and while you're at it, there's a case involving the Consumer Financial Protection Bureau. Congress chose to fund it from outside the annual appropriations process to ensure its independence, but our favorite conservative fifth US Circuit Court said that the funding scheme violates the appropriations laws of the Constitution that says Congress shall have exclusive power over the federal purse. So a couple of cases that deal with that there's also one dealing with the Security and Exchange Commission. So I find them all kind of in the same ballpark although there might be differences in the distance from home plate to the outfield. Your thoughts. Bunt, that's my advice. So I think those two cases, the two that you featured are gonna come out differently from each other. I think the herring case and of course some of these justices think that the federal agencies are socialists or communists so it's a red herring case you could say. But on that one, they're gonna say, oh, this just isn't fair, you can't make people being regulated pay for the regulators. And you're absolutely right. They don't like the administrative state or the deep state or the dark state although they do like dark money that's protected by the First Amendment. So they've been after the agencies for a while and that Chevron decision, that Scalia. So they have moved far from the deference to the agencies and agency expertise that has been in place since the 1930s. One way they've done it is to say there's a doctrine, there never was this doctrine, they invented it but there's the major question doctrine. And if there's a major question then Congress has to resolve the answer has to answer it has to resolve the question can't leave it to the agency. Well, what's a major question? Whatever the court says is a major question. And so they can say that about environmental issues or about paying for the regulator and I think that's what they're gonna do. So the major question doctrine invented by this court is something they're gonna run with. On the other one, the consequences are so drastic if they said you can't fund it that way they don't like that agency they've been after it there've been a couple of cases already but the Federal Reserve is funded that way banks pay for the Federal Reserve, for example. So trying to thread that needle I think will prove impossible. So I don't think they can say as the Fifth Circuit did every time an agency is funded differently from an appropriation, it's unconstitutional but I've been wrong and they've been worse than I expected before. Well, there's a very important First Amendment case coming up dealing with social media content and the justices who have made it clear that they don't really understand a lot about the internet are gonna have to again leap into the online moderation debate and decide whether states can essentially control how social media companies operate. If upheld laws from Florida and Texas could open the door to more state legislation requiring platforms such as Facebook, YouTube and TikTok to treat content in specific ways within certain jurisdictions and potentially exposing the companies to more content moderation lawsuits. And so these cases many feel can completely reshape the digital public sphere. The question of what limits the First Amendment imposes on legislators' ability to regulate social media isn't immensely important. And we know that in many of the states and frankly, we now know Florida and Texas they have decided that they have the right to decide what and what not can be put out over the internet. And imagine if 48 other states had different rules. How does the court rule on whether this is a federal question or a state question? Well, federalism is one of those fiddles that they've been playing off key for a long time. And these folks believe in states' rights until they don't, as in doves, as in saying, oh yeah, leave it to the states compared to the gun cases. You can't leave it to the states. Hawaii being one of the six that was singled out in that opinion. Those are within 24 hours of each other. But you're the guy who knows about the First Amendment and about technology. You're wearing those ear muffs and I'm not. So what do you think, Jeff? How's this one gonna come out? You're the First Amendment guy in these parts. I seriously doubt that the court is going to say that each state can regulate social media. It's like saying each state can regulate newspapers and television stations and we know they can't. So I think just a morass that would be caused by each state deciding what not, it will allow, it will force the folks like at Facebook. And this all arose, you know, out of the Trump issues and the conservatives arguing that Facebook in particular and Google were not permitting certain statements to be made. And that's why you see it in these, we can guess by Florida, the Santas and we can guess Texas. These are Trump acolytes and they are trying to make it that these forums can't make the determination of what or what not it will allow on their site. But that's my view. But Jeff, you know better than anyone else in Hawaii, that the internet is freer than newspapers. Newspapers can be sued for defamation. Oh, absolutely. And the internet because of some federal rules, the carrier is not liable, right? Well, but you have a federal law of communications act section 230 and I don't think the states have the right to amend what that says, which is basically total immunity. Congress is getting on it, they're getting angry about it, but until they do something, I just don't see the states doing it. Let's move on to, go ahead, Avi. Well, I was going to say, so in Dobs and the abortion decision, they said, let's leave it to the states and basically that's going to resolve it. Of course, they didn't wind up leaving it to the states and one other issue that's coming up is medical abortion. And the picture that you just painted, those states going in very different directions, that's what's happening. And if you got the fifth circuit striking down whatever they feel like striking down or upholding what they feel like upholding, there's a real mess if you leave that state to state because we're talking about things that are, of course, traveling between states and people traveling between states. And the court sort of didn't think of that when they left to the states in the context before. Let me ask you, it doesn't appear right now that there's a case that they've taken. There's still, I guess, a couple of issues which I don't know if they've taken or not. They had medication abortion. Have they taken that case, Avi? Yeah, yeah. What about the transgender rights case? They've taken that? I don't think they've taken that. I'm not sure. One obvious trend of this court is to put religious freedom ahead of every other constitutional right, including free speech. And we've seen it in case after case. And despite the fact that they try to narrow the ruling to artistic rights versus et cetera, at least three justices have made it clear that whenever the right of freedom of religion is put up against the right of any other constitutional right, religion prevails. Where are we going with that? Well, one of the ways they've done that is actually to cloak it in freedom of expression. And the way they do that is to say you can't treat religious expression any differently, any worse than all other expression, including political expression, which is, of course, adamantly protected, at least in theory. The problem with that is there's an establishment clause in the First Amendment, and they basically... There was. There was, and they've ignored it. And so people used to worry about that for a century or so, and now they don't worry about it at all. And the football coach, prayer, the fact that you can get public money sent to private institutions, because otherwise you'd be treating the private institutions, religious institutions, religious schools worse, and therefore, even if a state has a constitution that says you can't fund private education, the constitution, according to the justices, a majority requires you to fund private institutions, including religious institutions. I don't want you don't have to bake a cake for gay couples. You don't have to plan weddings for gay couples. What's next? I mean, do you have to serve somebody in your restaurant? If you have a religious belief that blacks smell, I mean, I don't want to be absurd about it, but we're getting there. It's not absurd because people use religious objections back in the 60s to oppose the 64 Civil Rights Act. Yeah, they did. They did. They absolutely believe their religion told them not to serve blacks. And so Sotomayor wrote a brilliant dissent that the case is called 303 Creative. And that's one where there is supposed to be a case or controversy. And this is a woman who isn't even in the business. She says she might get someone who would do this and then she'd be required to give up her right to be different. And she has a case and she wins. Well, we only have 30 seconds. And I think both you and I don't see a lot of optimism about this court. And I don't think there's gonna be a replacement for quite some time unless someone gets convicted of crime. So Avi, I wanna thank you so much for coming on talking about the Supreme Court and the new term and we'll just have to watch it with interest and pray and pray. And pray. It's uncomfortable agreeing with you so much, Jeff. It's not always does. Well, that's it for us. We appreciate you watching and listening in. You'll be able to get this on the internet assuming the Fifth Circuit doesn't get in the way or someone else. Thanks so much, Avi. This is Jeff Portnoy, signing off. Aloha. Aloha.