 Good afternoon. My name is Kim Williams, and I'm a member of the LBJ Library Future Forum Board. On behalf of the Future Forum, thank you for joining us today. The Future Forum brings other individuals with different backgrounds, experiences and points of view to discuss local, statewide, national, and international topics that affect us today. Our goal is to create civil, informed, and bipartisan discussions. Our program today is entitled Consensus in Conflict, the Supreme Court of the United States. We are excited to discuss and learn more about the Supreme Court and are honored to be joined by our three panelists. Gloria Brown Marshall is a professor of constitutional law at John Jay College of Criminal Justice at City University of New York. She teaches classes in constitutional law, race and the law, evidence, and gender injustice. She is a civil rights attorney who litigated cases for the Southern Poverty Law Center in Alabama, community legal services in Philadelphia, and the NAACP Legal Defense Fund Incorporated. We are also joined by Leah Litman, who's a professor of law at the University of Michigan Law School. She teaches in rights on constitutional law, federal courts and federal sentencing. She's one of the co-hosts and creators of Strick Scrutiny, a podcast about the U.S. Supreme Court, and a co-creator of Women Also Know Law, a tool to promote the work of women and non-binary academics. We are also joined by Steve Vladik, who's a professor of law at the University of Texas School of Law. He is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Professor Vladik has argued over a dozen cases before the U.S. Supreme Court, the Texas Supreme Court, and various lower federal, civilian, and military courts. He is a co-host of the National Security Law podcast. Moderating today's discussion is Josh Gerstein, senior legal affairs reporter at Politico, and one of the journalists who broke the story about the leaked Dobbs Court opinion. There will be an opportunity to answer your questions at the end of the conversation. You are able to type questions into the question and answer box throughout the conversation, and we will address as many as we can at the end. Now I'll turn it over to Josh to moderate our discussion. Thank you, Judge Williams for the introduction and to the LBJ Library and the Future Forum for inviting us all here today to talk a little bit about what's been going on at the Supreme Court. You know, as I was getting ready for this panel, thinking back over the events of the last six months to a year at the court, for some reason the expression that kept coming into my head was this reportedly Chinese phrase, may you live in interesting times. And as people may know, the twist there is that it's both a blessing and a curse, right? Sometimes for things to be interesting is not so good. Sometimes it is good. And I think probably it's hard to find many people who would say that this has been a very outstanding and successful period for the court over the last six months. There are some people that would deliver a mixed verdict and other people that would probably deliver a negative verdict. So I figured we would start with our panelists today to sort of ask them to take stock of what has gone on at the court over its past term or the past year. Obviously the most significant event that has taken place came at the end of June with the Dobs decision overturning Roe vs. Wade, the federal constitutional right to abortion that had been on the books for 49 years, almost half a century. And essentially went down on a five to four vote at the Supreme Court, really changing the state and lives potentially of people across the country. As a result of that decision, obviously other significant related events, including Judge Williams alluded to the story we had at Politico in the beginning of May about a draft opinion that was circulating at the court that appeared to indicate the justices were prepared to strike down Roe vs. Wade. There have also been a number of other events that have happened, security concerns, somebody being arrested for allegedly attempting to assassinate one of the justices. So there's no doubt that it's been a tumultuous period. Also, we've had justices speaking out about their colleagues in a way that is fairly unusual, at least in my relatively limited recent memory of the court. So I thought what I would start by asking our panelists about is how do they think the Dobs decision, in particular the debate that led up to it, the leak and the tumult around it has changed the atmosphere at the court. What is the impact of it going to be? I understand that we can talk about and should talk about the impact around the country on the rights of everyday Americans. But for the purposes of this discussion, I thought we might start with what are the reverberations from that decision and the related events in the court, and how are we going to see them play out? Professor Littman, would you want to kick us off on that subject and give us your initial thoughts and then we'll go around the round robin? Absolutely happy to. So first, thanks so much to the LBJ forum for having this event and Josh for moderating it. I'm very happy to be here. So I guess to my mind what I would say as to how the issuance of Dobs, the leak of Dobs and the events surrounding it have changed the court. I think in a lot of ways they haven't. Instead, they have exposed the way things are at the court in a way that wasn't always clear to people who weren't closely observing it before. And I say that in at least two different, or for at least two different reasons. One is what I think it reveals about the court's decision making. So of course after, you know, Josh, you reported on the leak, we all saw a draft of the first circulated version. And what in a lot of ways was most surprising to me was how little, you know, the opinion changed between the draft and the final version, even though there was a wealth of public commentary about the, let's say, historical inaccuracies or oversimplifications in the opinion, a lot of criticism about the, you know, relevant statements of the law and so on. And again, I think for people who were familiar with the court's work over the last two years that wasn't necessarily surprising we've seen the court play fast and loose with the facts we've seen the court play fast and loose with the procedures and we've seen the court play fast and loose with the law. And so to have it kind of exposed in a more public way in a way that more people saw more clearly was I think bringing in a lot of ways the public perception of the court in line with the perception of the court among, you know, the group of people who were following it, and then the second thing I would say is, I think it has, again, confirmed or at least solidified some dynamics interpersonal or intercollegial dynamics within the court, that again we're kind of on display to people who are watching the court closely. I think the tendency of the justices to kind of view themselves as having teams or want to work with people like law clerks right who are ideologically fellow travelers to them right I think the fact of the leak the fact that you had this draft opinion out in the public, you know, to some justices to express concern about who they could trust. But the reality is the justices were already kind of surrounding themselves with people who were sympathetic to their jurisprudential or ideological project, and I think that again their statements in the aftermath of the leak in the aftermath of the decision and only solidified the impression that the justices really view themselves as having teams having ideological fellow travelers having you know political kind of compatriots. And in a way that, again, a lot of the public might not have been accustomed to thinking about the court in those terms or people who have been watching it closely for the last few years had begun to think about it that way. Thanks for that Professor Littman. Professor Brown Marshall do you want to weigh in on this topic and what the last year or so has told us about the sort of broader arc of what's going on at the court. And thank you again for having us. I think that part of my concern was that the justices felt themselves betrayed. And they didn't seem to understand that when the draft opinion was leaked. It was because the women are whomever I'm assuming it was woman but whoever felt betrayed by the court. So the lack of communication which is something that Chief Justice Roberts wanted from the very beginning as this bridge to the rest of the country to maintain the honor of the court and to keep it in high esteem. And then he realizes now I mean he probably realized it before we didn't but the leak of the opinion, gave him like a full view of how there is a disconnect between his view and his leadership of the court, and what is actually happening with it, where the the court is crumbling before his eyes and it's so important for him that there are those who believe the court is going in the wrong direction enough to put their careers at risk. Something that the court has is tradition, where everybody sits is tradition where the law clerks are everyone you know in the press room even there is a hierarchy there is a tradition that one follows and he's seeing the tradition crumble, and he's seeing the younger justices who came up through this very controversial political vetting process, or don't view his leadership, I think is where they think they the court should be going. Or that there's like they somebody said this is wrestling cats are wrestling kittens. I mean when you think about someone in their 40s and early 50s as a kitten on a court where people are in their 80s. The last the last point of it is, there is no, as far as I know, confidentiality agreement, when they said we're going to investigate the leaks, the leak of this dobs draft, and Derek so number the full force the law, once again is tradition that allows a law clerk to maintain privacy secrecy, and as was pointed out by Leah, then be a part of that teams for that justice. My concern is that the idea where America is going the American people in the trust that we should have in the court seem to take a backseat to the hurt feelings, there's some betrayal of the justices with this leak, but it also told us as the American people that the court is in trouble just as Congress was in trouble and the and the executive branches in trouble that the court is also in trouble but unlike those other two branches, they're so the court is so rarely in trouble this deep and dire that I don't think it really knows how to get out of it. Thanks, Professor Brown Marshall. Now we'll move on to Professor Vladik, I just wanted to ask you what your thought is about whether the events surrounding dobs are sort of a singularity a singular kind of unusual event that was very painful for the court. Or does it show sort of as Professor Littman was saying at the beginning exposed pre existing problems that continue to be seen on the court and could plague the court for for a long time to come. Yeah, I mean, color me one who agrees that Dobs is a symptom of a fairly deep structural disease and not the disease itself. I mean, that's not to downplay the significance of Dobs it's an enormous system of good ruling but you know I think those of us who spend more time than we'd like to admit watching the court talking about the court thinking about the court have seen, you know, signs of this for a long time. And I think there's a tendency on the part of the right to dismiss any legitimacy conversation about the court as just pissed off progressives are even bad faith. And I think that that's both often times in bad faith itself but in any event sort of missing the fact that even for those who support a conservative agenda, the courts are voting legitimacy ought to be a concern. Right that you know that that the courts legitimacy has costs for those who like what the court is doing as much as for those who don't. And so Josh just really quickly I mean I you know I think if you look at not just what the court did in Dobs, where it reached a question didn't have to right in Bruin, where the court completely reconfigure second amendment jurisprudence, in a case where it didn't have to where it actually rewrote the question presented. So what's happening on the so called shadow docket right where the court is reaching out earlier and earlier to issue cryptic often unexplained rulings like there's lots of said, I don't think anyone needs to take our word for it the justices themselves are something is very wrong in Denmark, because they're going out and giving these unprecedented speeches, where, you know, Justice Thomas is talking to AI, about how he misses Chief Justice Rehnquist, right where Justice Kagan, who says anything she doesn't mean to be repeated everywhere on the internet, right both to the nine circuit judicial conference and asks about why the court should be viewed as legitimate, right where Alito pushes back I mean, I think the fact that the justices have resorted to the lobbying grenades at each other in their public speeches is more powerful evidence that anything the four of us could say that this is a court that right now is in a very very bad place institutionally, whatever you think of the bottom lines it's reaching these individual cases. Let's talk a little bit more about that question. I think all of you in one way or another mentioned legitimacy so I'm wondering if you can weigh in on this a little bit in a dobs decision the majority ruling from justice Alito. He's very dismissive of this idea basically says well the courts rulings shouldn't be a popularity contest therefore we don't care I think Professor Vladik was was sort of alluding to that position that some conservatives have taken. What do you think about that I mean obviously I don't think there are many people that would want the court to simply grab a bunch of opinion polls on any subject and say well that's therefore going to be what our opinion should be on this issue right one of the purposes of the courts should try to safeguard minority rights in a majoritarian democratic country so so you definitely would get the wrong result in a bunch of cases if you went about it that way. At the same time the justices have said many many times right that the Supreme Court doesn't have its own military or even its own executive branch at basically its authority is because people accept the courts authority and doesn't that legitimacy is important and don't the rejoinders as Professor Vladik was mentioning the justices making various statements in the last couple months in the wake of the dobs ruling don't the chief justices rejoinders that you should be very careful before saying that we're not legitimate signal that there is some concern, even in the conservative wing of the court that if they're seen as completely illegitimate that ultimately it will undermine their authority and the impact of whatever project they're embarked on. Any of you want to weigh in on that. On those questions. I want to say very quickly first. In the midst of all this we have Jenny Thomas. And even before Steve pointed out, we had justices who were taking vacations with those who were connected to cases before the Supreme Court. And the breadcrumbs leading up to this moment have have been spread pretty wide. And in my concern when it comes to legitimacy is that because we have this democracy that the politicians are already saying is in trouble. And at the same time, we had such a political political process for confirmation is as though the court wants the American people to say, who are you going to trust me or your lion eyes. We're, we're watching this in real time, as the court disintegrates before us. And yet we're supposed to as American people just say, because the court says it's still or the Chief Justice says it's still legitimate body. I just had, you know, pretty, you know, dismissive remarks as well about, you know, the polling of the low marks that the court is receiving in line with that of Congress. I'm concerned that there isn't a place Justice Breyer, former Justice Breyer just spoke at Harvard at the IOP, he even said he would support term limits now. And the former Justice say he would support term limits but they would be perhaps 10 to 10 year term limits or something like that. But yes, he's talking about supporting term limits. So this is telling us that it's not just something that we've thought up as people watching the court that inside the court there is trouble and I as I said before, I don't think they know exactly how to get out of it. John kind of kind of say that to that. I mean, I think it's worth putting this in a bit of historical context, right, that, you know, the, it's 2010 becomes this really significant inflection point because it's when Justice Kagan replaces Justice Stevens, right, that we have for the first time this one to one alignment between the party of the president who appointed the justice and where they line up on the ideological spectrum that we hadn't seen in a very, very long time on the court really the modern court at all. Which really I think started in 2010, that the court should have been especially sensitive, right to the perception that these are just levers of partisan political power. And I think what protected us from the sort of seeing the worst of it was the unpredictability of Justice Kennedy, and the fact that the same median justice who everyone agreed was the median justice could vote in one year, right to strike down the Defense of Marriage Act, but also strike down the Voting Rights Act. Right. And so you had this sort of this false sense of sort of centrist stability that was hiding the fact that the court was really partisanized to the extent it had never been before. And I think no one has no one other than Chief Justice Roberts. And this includes the justice on the left as well as on the right has really thought about what it meant for the court when Kennedy was replaced by Justice Kavanaugh, who whatever else we might say about him shows none of the same leanings in those respects. And so I think the quite you know, go ask the right question like you know what they don't seem to know what to do about it. I'm not sure they even think it's like, I think the first thing is getting them to admit it's a problem. Not any of their decisions, right, because I think that's obviously the place where Chief Justice Roberts doesn't want to go. But the public perception that, you know, all of these 63 and 54 rulings just happen to break down the same way in ways that tend to favor Republican Democrats, even if there are principles behind those decisions, it doesn't look good. And, you know, I say this as we're about to have in the new Congress, a House of Representatives where the entire margin of Republican control is probably going to come down to a pair of unside unexplained Supreme Court orders from earlier this year, from which the liberal justices and John Roberts dissented. So, you know, I think, without getting into like what's wrong with individual decisions, I think the institution itself. It's bad enough that they're not, I think publicly acknowledging the implications of the growing erosion. I think the worst part is, you know, going out on a speaking tour, where they're basically trying to insist that it's not happening. Right. Amy Coney Barrett giving a speech about not being a partisan hack at the Mitch McConnell Center. Right. Clarence Thomas complaining about how he misses the old court. Justice Alito giving a speech about religious persecution in Rome a month after writing the majority opinion in Dobs. I mean, you know, at some close, that's really believe me or your line of eyes, right. My version of this is, you know, are you really going to piss on us and tell us it's not until it's rating. And I think there's all, you know, this is where I think the problem is not in the decisions, but in the court's insistence that everything was fine. We can go to Leah in a second. I guess just since we're getting a somewhat uniform assessment of the court, I guess I should probably try to play devil's advocate and say, Well, maybe we're just not looking at the right decisions. I mean, obviously Dobs is very significant decision. I don't think anybody can dispute it. We could sit here and talk about the Bostock decision, which basically, you know, very significant maybe revolutionary development in discrimination law in terms of determining that same sex discrimination against gays and and lesbians as well as transgender people is all covered by existing discrimination law opinion written by a conservative justice. As you would say, Steve, if we're going to identify them by the president to appointed them a Republican appointed justice, the Chief Justice goes along with the opinion as well. So it's not the case that they're like uniformly down the line always voting for what is their perceived partisan interest. So is that just a weird, a weird outlier? Is it that the average man or woman on the street doesn't even know about the Bostock decision or how would people assess that? Maybe I should turn to Leah for an answer on that first and then come back to Steve or I want to let you in on this issue, Leah. Yeah. So what I would say is it's always going to be the case that we can identify some decisions, right, where the ideological alignment, right, isn't perfect. But the reality is, is that on the issues where the core of the Republican Party, right, the overwhelming consensus of the Republican Party is right, that it would help right to narrow the reach of the voting rights act or it would help to say, empower state legislatures at the expense of state courts or we want right to overrule Roe versus Wade or we want to grant, right, broad religious exemptions to civil rights statutes. Those are the kinds of cases where the, you know, Republican appointed justices just are voting kind of in lockstep with one another. So yes, like we can always identify some instances where there's going to be some, you know, it, odd ideological bedfellows, you know, in federal Indian law cases you have Justice Gorsuch voting right with a more Democratic appointed justices. But again, that doesn't change the fact that in these major, high salience, ideologically important cases that are of monumental importance to the future of our constitutional democracy and to people's lives that in those cases, the justices are voting in lockstep with the political party that appointed them. And so when we're talking about the courts legitimacy, you know, of course, right, I agree I think everyone agrees that the justices shouldn't simply be following the opinion polls. But I also think most people expect or at least understand that some of the course legitimacy comes from people's belief that the justices are doing something other than just imposing their own policy, ideological or partisan preferences on to the law, right, and I don't even think the Dobs majority would disagree with this right like they say in the opinion that in fact the courts legitimacy comes from the court doing law. And so when we say like who are you going to believe near your lying eyes or are you going to piss on us right and tell us it's raining. It's like well it's a little bit hard to sell the idea that the justices are just doing law, and yet somehow right the law of all of our constitutes or the law of our entire Constitution reflects the Republican Party's platform from 2016 and 2020. Like that's just a hard pill to swallow and people shouldn't believe that and they don't and I think that is what is straining the courts legitimacy. So of course we can always identify right the case that is the exception there are going to be issues that are the exception but the reality is in these big ticket cases that are of the most profound importance to people's lives in the future of our constitutional democracy. That's where we seeing these partisan ideological splits. I would just add to that really quickly that I think the other piece of this and this is where I think the law professors don't always do a good job of talking to the non lawyers is that I actually think and I think that might be some daylight between me and the other panelists on this. To me the most powerful evidence of the ways in which I think the court is behaving in ways that are unhealthy as an institutional matter are procedural not substantive. Right so, you know, for example, search you are before judgment is a very technical thing it's just it's a it's a procedural mechanism by which the Supreme Court basically leap frogs, a court of appeals to decide a case very early litigation. And it's supposed to be reserved for really important like momentous cases so much so that you saw me one every decade right throughout most of the 20th century between 2004 2019 the court had granted search right before judgment zero times. In the three and a half year since it's done it 17 times. Right, you know this is a court in a hurry. And I think the, the other piece of this is, you know will bow to Professor Chicago who I think is is very much in tune with what some of the conservative justices are thinking, you know will's argument which I think is is descriptively powerful is that what's happening on the court is you have a majority of justices who are committed to a what they believe is a pure understanding of the underlying legal principles, and they don't see political or institutional reasons to not just articulate those principles whatever they can. And I think, you know, if that is correct as a descriptive matter and I think it's a, it's as plausible reading as Eddie, right, then I think that only in dice the project because part of what gives the court freedoms. Right, is the notion that it's not just sort of writing law school exams, right but then it's actually resolving cases cases mind you that the justice have picked. Right, but cases that are brought to them as opposed to sort of them reaching out to figure out what they want to say today and so so I hear you like, I don't think we should overstate the, the critique at the expense of dragging out the defense I just think even the defense, right requires one to accept a mode of behavior that we've historically not thought to be appropriate from the justices of the Supreme Court. And I just want to say this and this is going to be very, very pedestrian. They have a vote. They have the power, and anybody can understand that anybody can understand the deceptive way in which people who have the votes can then use that power and say oh this is we're using it with full legitimacy you just don't understand American people. You know, most people know that if they're in a super majority, then they don't have to give the types of clear legal reasoning for their arguments, and that's the other problem, because the court as we know on a basic level is as Steve pointed out solve disputes and conflicts in the circuits and across the country. But when you have four different legal reasons but they all come to the same conclusion. What are we to do in the future how are we supposed to know how to follow the rulings of the court, when you have all these legal reasons that are all over the place. You know, some of them, this abusing history or, you know, realigning it to fit their argument another one saying, oh go to your state legislature, they women know how to vote I mean just think how dismissive Alito was women know how to vote, they could go to their state legislatures and and talk to them as if we didn't know that then the case goes before the Supreme Court and the Supreme Court because it has a super majority and turn around and say no state legislator, you're allowing a women to have a right to choose and these women are supposed to have a right to choose so you know didn't you understand our opinion. So, the fact that the, that the major opinion and majority opinion dobs did not say, go to your Congress, they specifically said they specifically said go to your state legislative body, knowing that their control of the most of the state legislative bodies is in, you know, conservative So, so much of this you don't have to be a law professor to know when someone is speaking to you and double talk, because they have the power to do so. Right, and I think from a reporter's perspective, the way we see this is when the specific cases come up. I think that the drama that we had seen as Professor Vladik was sort of alluding to when we had a real swing justice on the court it meant there was some uncertainty. When there was, for example, probably the highest profile set of cases in front of the court in the current term are the two cases on affirmative action that they have taken affirmative action in college admissions and, you know, there, because of the three conservative court, it seems like the outcome is essentially four ordained, and only thing we're waiting to find out is, you know, how it's going to be explained I did think that in some of the arguments on that case that some of the justices like Justice Kavanaugh and Justice Barrett may have been sensitive to some of the criticism they have faced in the wake of the dog's decision that they are just like bulls in a China shop, overturning precedent left and right and they're at least looking for a way to explain what they plan to do next in a way that they can portray as consistent with precedent as opposed to shattering or breaking with precedent. Do you think that this six three conservative court means that almost all of these high profile disputes are now going to be drained of the drama in their outcome and we're simply going to just get edicts from the court about, you know, what their policy preferences are even if they're not explained in that way. I'll take that first. I don't think all of them, Josh. I mean, I look at a case like more versus Harper the case about the independent state legislature doctrine. And I actually think it's unlikely that we're going to have a six three, you know, sort of down the line rule in that if only because you know we've seen such a remarkable outpouring of conservative support for what might otherwise be viewed as the progressive position in that case, but I think it's in the sort of conventional sort of conservative social policy cases right like I don't think there's any doubt about what's going to happen in the affirmative action cases. I don't think there's much doubt that the court is going to strike down the Indian Child Welfare Act even if they can't agree as to why. Right. I mean, I think like, and so I think what what there's still mystery, but the mystery is like, you know, what are the cases where one or two of the conservative justices surprise us, given the predictability of everything else and I think we're going to see that, you know, like, they're sort of the they're sort of like the party platform cases like the affirmative action cases. And then there are the more legalistic cases like more versus Harper, it's the latter ones, I think right where we're going to see more of a more potential for the old school uncertainty, and there are plenty of the former. I mean, it's hard to keep track of the former there. There are cases the court is hearing this term for example, about nursing homes, and when nursing home beneficiaries can challenge the denial of services that are going to really I think sort the court right into the six three I think it's much more predictable in the mind run of cases. There will still be some that are important and unpredictable to Right. It also strikes me we also have another case in the stemming from the same sex marriage decision sort of the fallout from that decision that was predicted by the dissenters there that there would be rounds and rounds of litigation by people who claim either or free expression rights to express their opposition to same sex marriage, I think this may be the fourth case or the fourth time these cases have come to the court and we have one that's coming up that involves a internet website designer who doesn't want to provide services for same sex, same sex weddings or same sex marriages I think in Colorado again it may be as some of the prior cases. So that seems like another one where because it's a six three court and the way the justices have replaced other justices on the court. It seems like it's foreordained that those who are in the minority are now in the majority and will While perhaps they won't take on directly precedence, they're going to work their will in these cases to essentially make those footnotes in the minority dissenting opinions from prior years. Now, the law of the land. Do you guys have some thoughts on on that on that case or other cases where you think the conservative majority will work its will. Well, I just want to go if you circle back to what the mystery may be the mystery may be who's going to write the opinion. And that's that's going to be the mystery will justice Thomas right the affirmative action opinion he's been at the bit he's been denouncing affirmative action for decades. I just want to give him the joy that he desperately seeks. I also think that the American people are watching the court, knowing the mystery and some of the intrigue that of these people and their vendetta's. I say this because watching Gorsuch, and I and I wrote about this, you know, early on that Gorsuch's mom was, you know that leader of the environmental protection agency then she's fifth of this power. And is this now his way of getting back at the EPA for the shame that came to his family from what happened with his mom. I have Chief Justice Roberts, and now it's come out something I've also written about in my book the voting rights for that he was the lawyer who put forward the legal arguments in ways in which the voting rights act could be gutted back in the day he was begging for this type of legal reasoning to be used in order to undermine and find unconstitutional certain elements of the voting rights act. When we start peeling these things back, we begin to see that the intrigue as Steve pointed out has been going on for quite some time and that hasn't been this confluence, in which we have so much of, you know, Jenny Thomas, now sending the emails during for January 6. All of this is coming out now, which is undermining the court and making those possibility of five four, six three years in which conservatives continue to have their way to create a 1950s America, even more frightening to people, and wondering, yes, the legitimacy of the court is given to them by the given to the, the justices by the American people, but the American people are now looking at it saying, wait a minute, you don't deserve this legitimacy so now what can I do to stop you from, you know, taking this our country into a direction that the majority of people don't want to go. Right, I think that's a really interesting point and especially you bring up Chief Justice Roberts again it seems like he, you know, he's simultaneously lamenting sort of people saying the court is illegitimate. On some occasions he serves as a swing vote for trying to promote what he views as a more moderate consensus position, but in some of the cases like the ones several that we're hearing this term tend to be in areas where the Chief Justice is pretty incredibly conservative on just about every issue or case regarding race that the court has taken up since he's been there. He tends to side with the conservative Republican position, I think everybody expects him to do that in the affirmative action but he respects him to do that almost universally in voting rights cases we have a, in addition to the case that Steve mentioned a moment ago about the role of state legislatures. We have a more straight up kind of redistricting case out of Alabama that was already argued where people expect the Chief Justice to sort of side with the position he is generally taken in those kinds of cases so it's a complicated project that he's trying to get people to believe that the court is, if you will, on the level when, you know, his vote only seems to be in play in a limited set of cases and then as we're discovering from the Dobs decision, even when his vote is in play, sometimes it doesn't matter. As Professor Brown Marshall was saying earlier, it's a 6-3 court so even if one justice wobbles it doesn't really matter, you know, if we got to a 7-2 court, it would hardly matter at all. And I guess one of the questions is how the court preserves its credibility and its legitimacy, you know, when it has this kind of lopsided quality to it which I guess at times in the past it's had but as Professor Lattick was pointing out, not always a one-on-one relationship between the party that appointed that justice and where those justices come out. I want to touch on a couple other points before we go to questions. If people have questions, you can put them in the Q&A box and we're going to try in about five to 10 minutes to ask some of those questions. Do one question about sort of the mechanics of the legal system but also one about a very high profile figure in American political life, that's former President Donald Trump. I just wanted to get a sense from the three of you. What do you think about the court's relationship with former President Trump? It's unusual in that three of the justices were appointed by former President Trump. My sense is that they are no longer too enamored of him. Do you agree with that? Why do you get that sense? And you know, what do you think the dynamics are going to be going forward since the former president seems to find himself enmeshed in a lot of legal disputes and he seems very willing to escalate things to the Supreme Court, even though he's been at least in post-presidency uniformly unsuccessful. What do you guys see as the state of relationship between the justices and the former president? Anybody want to jump on that? This could change any minute, right, Josh? So we're waiting for an order from the full court about former President Trump's application to prevent the sort of the turning over of his tax returns to the House Committee on Ways and Means. So what I'm about to say might be mooted or proven false within the hour. Well, just delete it. That's fine. He has a bad relationship with the court. I mean, let's be frank about this. If you distinguish between his policies while he was president, which frankly didn't actually fare that well on the merits and cases involving Trump the person, he really had a remarkably poor streak. He lost the congressional subpoena case. He lost the New York prosecution grand jury subpoena case. He lost this January, his effort to block the National Archives and Records Administration from turning over some of his records to the January 6 committee. And so I think a cynical person might say the conservative justices don't need Trump, and so ruling against him is actually pretty easy. I think there's a more principled point here, which is that his claims in these cases have been pretty weak and these ought not to be partisan in the sense that, you know, the what's good for this president should be good for the next president. And so, you know, my sense is that the court has shown over and over again that at least a majority of the justices are in no hurry to go out of their way to do Trump's dirty work for him. I hope that continues in the tax returns case, you know, that we haven't heard from the court yet might be assigned that maybe is closer than that, but at least until and unless he's elected again, I expect that to continue. I would just expand on that by saying, right, while I agree, right, the Supreme Court, including the justices appointed by Donald Trump are not fixated on, you know, the personal ambitions or political ambitions of Donald Trump, they are more likely to rule in his favor, right, where he's pressing an argument that aligns with the project of the conservative legal movement, right, or the project of the Republican Party, that's why we saw them, you know, for example, repeatedly ruling for him in immigration cases, right, during his administration, or, you know, I could list other examples. So I think that that is where you are likely to see the overlap, you know, when he is pressing an argument that sounds in the register of, you know, legal principle, right, or value that has been advanced by the conservative legal project or Republican Party, but not necessarily like I Donald Trump would prefer right to just have this thing happen. Right. Um, I just wanted to say very quickly, when I agreed with both Steve and Leah, I'm going to add this other component the constituency, and you would say that well justices don't have a constituency but they do, because as we pointed out before, these justices are going out speaking to groups, and the Trumpers are in these groups, and I keep mentioning Jenny Thomas, Clarence Thomas's wife, who has had an amazing rise in leadership for the conservatives, and not just conservatives but fractions of the most ultra conservative in their movements. So I'm concerned, as we saw when Chief Justice Roberts decided way back in the day with the affirmative care case that that the affordable care case that the constituency turned on him, and made his life miserable. So I don't know if these justices are willing to stand up to the Trumpers and the other constituents of Donald Trump, when they're making their decision that's supposed to be this quite objective decision, but they're being subjected to a countless protest and abuse if they fall away from the conservative agenda that Leah has pointed out. Right, my sense is that with most of the justices they are comfortable with most of Trump's agenda, they would just prefer the cases that come in front of the court. If they, if he could not have anything to do with them they'd be much happier about taking them and acting on them at the moment they seem to be treating him as something of a radioactive presence although as Steve says, maybe we'll see in the next couple of days whether that's still the phenomenon and who knows whether the justices are affected by the broader political dynamic of the last couple of days where we've seen a lot of mainstream Republicans demonstrating a willingness that they have not shown for six years to sort of separate themselves from the former president. So before we go to the public Q&A I want to just do a quick question about the court system and whether we think the Supreme Court is poised to make any changes to some other areas that people see as dysfunctional. I guess one would be the way that court itself handles one of Steve's favorite topics, it's shadow docket and these things that come to the court on an emergency basis and are decided without formal argument and yet can often have a pretty dramatic impact. And there's a subsidiary issue in there as well of this issue of just random federal judges around the country deciding that they are going to knock out entire government programs. And I think it was a fairly unusual phenomenon until the last decade or so and then it really afflicted both the Obama administration and the Trump administration with things that they wanted to do this kind of bizarre situation where, you know, 800 federal judges could sort of take their best shot. And if any one of them hit the policy, it could be knocked out for three months or six months or a year. I don't have any sense of whether there's some consensus on this court that maybe crosses ideological lines if we're going to try to be a little more hopeful about things being done in a cooperative fashion that they have a desire to either reign in their tendency to deal with cases on an emergency basis or interrupt this phenomenon of individual judges for pedo and government policies for sometimes more than a year based on their individual conclusion about whether it's legal or not legal. Any quick thoughts on that before we turn to the public questions. Well, I mean, I mean Josh the phenomenon you describe is even worse than the way you describe it right I mean the the district judges are not just randomly assigned district judges like these are district judges who are, you know, lawsuits are being filed in Amarillo, Texas because they have 100% chance of being assigned to a particular district judge who has shown, you know, his colors so I don't think you know I think any moment for the court to be like against nationwide injunctions. When I went by the boards, when the same justices who were critical of them during the Trump administration Thomas and Gorsuch most publicly continually voted to leave them intact in the first two years of the Biden administration and didn't have any problem with them. I will say, I'm watching there's a case the court is hearing in December, under the very unhelpful but revealing name us versus Texas. I think is actually a real bellwether for the question you're asking, because although the specific issue in the case is about the executive branch is power to have immigration enforcement priorities. The cases just loaded and infused with is this really how we want litigation to work these days. Right there's a question about whether Texas has standing. There's a question about whether Texas filed in the right court. Right and so I think we will find out sooner rather than later. Whether the court is really comfortable with this posture where any challenger or at least any state that doesn't like a new federal policy can walk into a randomly selected district court where they can pick a judge and get an nationwide injunction. I have to hope that they're not comfortable with it. The politics of it aside it puts a ton of pressure on them, because in some respects it catalyzes the shadow docket it brings more of these cases to them faster. Gosh, the flip side and this is the last I want to say before getting out of the way of Gloria and Leah. The flip side is, I think we haven't talked enough about how the new conservative majority is enabling bad behavior by lower court judges, right that like, you know, I'm in Texas where I think, you know, it would be a huge difference for the Supreme Court in any of these cases to chastise the litigation behavior of the state of Texas, or to chastise the overreaching by a number of these district judges. And when the court says nothing, and I even when it sometimes stays these decisions, when the court just says this is just normal litigation behavior. It's only enabling even more radical and to me even more problematic behavior by lower court judges that gets far less attention because they're not the Supreme Court. I just want to say very quickly, I'm asking this question and I think it's going to come up later. Who's actually handling the shadow docket. I'm wondering how that works within the court system, because there's so much before the court I'm going to put this question out there and we'll see later if there's something that rises out of the mist about how the shadow docket is handled itself, because someone is chosen there are people who work on these issues they're working in that part of the court. And so it would be very interesting for me. If there was some illumination on that, because if the majority conservatives, then also handle the shadow docket knowing they already have the votes to let something go through, then it's even more streamlined. And people then become aware, raise this issue in this particular way, and you can get direct access to the court. So it's one thing as Steve pointed out, from the federal process and nationwide of the district court judges, and it's another to get direct access without having original jurisdiction going straight up through the shadow docket, and people know how to do this, if they're being told what the process is that's that's not being told to the rest of us. Leah, did you want to jump in on that or should we just go to some other questions that people have raised. Why don't we take the questions. Okay. So, one question that's being raised here is, look, you know, it's possible that a President Hillary Clinton. So this is a hypothetical question that might have appointed three liberal justices to the court. It would be similarly outraged if that had caused a six three liberal majority on the court and I do think there's another related question that has occurred to me, a bunch of times, and that is, you know, when the Supreme Court issued the ruling and, you know, made a decision to implement same sex marriage across the country. I frankly don't remember a huge outcry from academia saying precedent must be respected it's been the case for many, many, many years that we have not recognized same sex marriage and people have come to rely on that fact in different ways and therefore you know, this is a tremendous tectonic event, you know, in retrospect it doesn't seem that tectonic as we all know the poll numbers have swung rather dramatically, even in very conservative states in favor of same sex marriage. But is there like an ideological lens all this is being interpreted through by critics and by academics, where somehow what the conservative justices do is bad, and what the liberal justices do is is always good. I'll go first and say I mean, you know, I don't know that that anyone asking that question is going to believe me when I say yes but not to the same degree. I mean so you know if Hillary had won we'd have a five for Democratic majority I don't see Anthony Kennedy retiring during the Hillary Clinton presidency. Ruth Bader Ginsburg dying would not have changed anything at that point. You know, what would a five for court with Merrick Garland as the swing justice instead of Anthony Kennedy have looked like. Honestly, Josh, I don't think it would have looked that different. I mean, in some cases it would have looked different. But also, and this is the larger point to make to me, right, the critique, at least my critique of the current court, again is not that I don't like the bottom line and dobs and then I don't like the bottom line and I don't like that, you know, to say like, well, if it were liberal results to be happy, Mrs the critique, which is the way the court is acting the way the court is getting there right 17 grants of cert before judgment 44 grants of emergency relief over the last two terms, right, contest where the court is not explaining itself, reaching out to decide questions that were not actually presented by the case, right, writing the question presented as in the Bruin case. So it seems to me that like, you know, I, I have been critical of procedural shenanigans by judges of all ideological stripes, I've been very critical of the liberal justices for not actually making a bigger deal out of the procedural issues and some of these rulings. But I also think like, you know, the sort of what about ism is only gets us so far when the real charges are you acting like a court. The claim is that, you know, bottom lines aside, the court is increasingly acting in ways that are at least open to the charge of being non judicial or at least in judicious. It seems to me that we all, you know, think that charge is either viable or not without regard to whether we agree with the bottom line that justices are reaching. So just, just to let you know, for young people, I created this animated series, your democracy. And so one of the public broadcasting stations in Philadelphia is producing it. And so young people then ask me after one of the animated series segments, but why should we trust the court. You know, if young people ask that question before they could have all I know is the court is going through something right now that even high schoolers understand that there's some unfairness here, and there's no explanation for it. Yes, people could question whether or not a virgin fell had the level of precedence that was needed, or was it like Brown versus boy of education that it was time for this to happen. And so that's why the court finally caught up with what was going on in America. The majority of this country is was pointed out from the very beginning does not support dobs. And so the political process that gave rise to these three latest justices also tainted their presence on the court. There's a lot that's gone on to get us to this place. It's just not a matter of some are liberal and some are considered conservative. I also have another question that's come in about the midterm election results and what do you think the dynamic how do you think that changes the dynamics on the court but also, you know, the lower courts, there are a lot of vacancies I think around vacancies at the moment. Some of those are in places that under the current framework. I think it's going to be difficult for President Biden to fill those judgeships anyway, even with the majority in the Senate, although obviously not nearly as difficult as it would have been if the Senate. What do you think we're going to see on the judicial nomination front or on Supreme Court reform front if anything between now and 2024. I don't think we're going to see anything on the Supreme Court reform front you know I think the Biden administration's project of right here's a report here's a commission that is not in power to make recommendations like that was their plan to basically address Supreme Court reform without addressing it. On judicial nominations and confirmations you know I think the process you're alluding to as to why the Biden administration might not be able to fill all the vacancies this is a blue slip process you know the tradition that the Senate has left in place where by home state senators have to give their consent to a nominee to the district court in their home state and if you just look at the vacancies right that exist. President Biden has made, you know, over 75% of his appointments in states with either one or two Democratic senators and most of them with two Democratic senators. And so, I think so long as they retain the blue slip process, the, they are not going to be filling district court vacancies in particular, and even, you know, while some courts you know really need frankly additional judges given their talk it's so, you know, that's kind of what I would expect just to happen by way of judicial confirmations. I don't know if there be any pressure in the next two years to change the blue slip process if absolutely you're already seeing that pressure right you know groups like demand justice and other or civil rights groups right have called on the administration and the Democratic Senate to abandon the blue slip process, but so long as Joe Manchin and Kyrsten Sinema remain king and queen of the Senate right that's unclear if that's going to change. And to me, Josh, I mean this is actually one of the many reasons why the Georgia runoff matters. Right, because, you know, look at text I mean forget the blue slips in the district court right there's still an informal blue slip process happening in the circuit courts, even though the Republicans got rid of blue slips in the circuit courts. Five or six years ago, there's an open fifth circuit seat in Texas, right judge Costa resigned in August, and you know not only is there no successor for him there's no nominee for him why, because the by administration, you know is afraid of senators cruising corned. And so, you know, I think, I think there's going to be pressure, especially if the Dems get to 51 to be more aggressive in certainly at the circuit level, and I think eventually at the district court level in states with two Republican senators and see what happens and I think that's, you know, that's much more likely to me in a world in which it's a 51 49 Senate than the world in which it's 5050. I think that's great. Professor Brown Marshall, do you have any thoughts you want to add on that I think we're about to about to wrap up but I think there is some question of how the climate for the court. Looks different this week than it did a week ago as a result of what's happened, I mean, because I think if some of the students you're talking about in the young people had a sense that the courts actions in Dobs were part of Republicans steamrolling through every branch of the federal government. That isn't exactly what played out so I just wonder how that affects the way people interpret what the what the court is doing. I think that the people generally are just trying to figure out the court, and why should they follow decisions that are so politicized. And as Leah pointed out, seem to follow the political agenda of a particular party to the to the letter. And I think young people are confused they want a country in which they believe in their court system they thought it was the last Supreme Court when all this other confusion was going on with the White House and Congress, and now you have many of the Gen Gen Z Gen X, and younger who are taking these classes and civics, and in constitutional law they're trying to figure out. Is this, is there any place we can trust in this country for the systems to actually work properly they thought it was the Supreme Court and we're telling them no not even here. Great, I think we're going to let Professor Brown Marshall have the last word on that. I want to thank her and Professor Steve Lattic, who may be the only person who on the panel who could have walked to the LBJ library. I don't know from from their, from their house and a professor Littman for also joining us today I'm going to throw it back to Sarah McCracken with LBJ library to her wrap us up. Thank you everybody thanks over to you Sarah. Thank you all so much for sharing your time and expertise with us today. There's a lot to watch for this term. The future forums events are made possible by our incredible members and sponsors, including the downtown Austin Alliance, FDF law and Karbach brewing. Not yet a member of the future forum or on our email list I encourage you to sign up on our website lbjfutureforum.org members enjoy first access to events and happy hours networking opportunities and benefits at the lbj presidential library. Next up will be a holiday happy hour and then in the new year, a preview of the upcoming legislative session here in Texas. Thanks so much again, and I hope to see you again. Take care.