 My name is Sandy Baird, and I'm here with Beth and Lou, who are part of a little group who is trying to, hopefully, we're going to be able to establish a new institute called Vermont Institute for Community and International Involvement. And Robin is here, also Robin Lloyd, who is also very helpful in this regard. We've been doing this for a while. The virus sort of interrupted our efforts, but we're back, and we're going to be presenting this kind of semester, a group of legal seminars that the Attorney General's Office has agreed to participate in to get out some general education to our community, our whole community, about the legal system of the United States. It's currently very much in the news. And so this is what we will be doing this semester. And next week, we'll be hosting an in-person speaker who will be speaking on the whole controversy right now about bail. And that will be with the state's attorney here in Chittenden County, Sarah George. But with us tonight is Ben Battles, and he is from the office of the Attorney General in Montpelier, although Ben, you're not in Montpelier, right? No, I'm actually at my house in Waterbury. So I apologize if you hear any dogs barking in the background. He maybe can talk to you a little bit about his background. I don't know, Mr. Battles, very well, but I'm very happy that he's here to talk about tonight about the United States Supreme Court, the history of the court, its role, and it's basically its function in our system. It's very much in the news right now. And so I'm very happy to have Ben Battles here to talk a little bit about that. There'll be plenty of time, I think, for questions from our audience. So if people want to just say who they are, be very helpful. I see that there's Diane Gottlieb, right? And Peter Huber, all old friends and colleagues from millions of years ago. And then Joanne Murad and also Barbara McGrew. I guess I see Deb Bout maybe and Donna Pielko. Right, and Jody Albright. So we're all old kind of acquaintances. There's new friends in the audience who are also from this center. This is the Association of Africans Living in Vermont. We are within their building and their offices. And they are also co-sponsors of this series of seminars. And we thank you all really a lot for being here and for trying to understand a little bit about what's going on without really talking too much about the hearings today, but just about the importance of the court and its history in general. So, man, why don't you give us your thoughts on the court? Great. Well, thank you very much, Sandy. And thank you, Beth. And thanks to the Association for inviting me to talk with you tonight. Obviously, a very timely issue. So just briefly, I work for the Attorney General's office. And the Attorney General is the lawyer for the state of Vermont. So we represent the state and its agencies in a variety of all sorts of different types of cases, criminal cases, environmental cases. And my job is the Solicitor General, which is just a fancy title for being in charge of the appeals that our office handles. So I handle appeals in state and federal court. So that's at Vermont Supreme Court and the federal appellate courts, including when we have issues that go up to the US Supreme Court. Can I ask you a question? Have you been at the US Supreme Court? I have. We had a case go up several years ago that my predecessor in this job, Bridget A.C., argued at the court and I was the second chair. So I was there with her. I didn't argue the case. And we also have filed briefs in various cases when the state has an interest. Great. Wonderful. So I was going to talk a little tonight about the history of the US Supreme Court, how it has evolved over the couple hundred years that it's been there. And also talk about how justices are selected and how the court decides which cases to hear and how it ultimately decides those cases. So going back to the beginning, let's talk about in 1776 when the colonies of European settlers declared their independence from Great Britain, each colony had its own legal system. There was no central court for the colonies. And then that's the way things remained in the first constitution that the country had, which was the Articles of Confederation in 1781. And there the states, the colonies were really just treated as almost independent countries that had formed an alliance. And so each colony had its own court system. And that changed in 1787 with the ratification of the US Constitution, which we still have. And under the Constitution it created a strong national federal government divided into three branches. The executive branch, which is the president. The legislative branch, which is the United States Congress and the judicial branch. And Article III of the Constitution created the judicial branch and said, the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as Congress may from time to time ordain and establish. So that's where the word Supreme Court comes from, is from that constitutional language. It doesn't really say anything else about the court other than to define the types of cases it can hear, which is limited. And generally cases arising from federal law and it didn't displace the state court system. So most cases still end up in state court. But you do have this federal court system that was created. In Congress in 1789 passed the first Judiciary Act, which created a number of the lower courts, which at that point were just the circuit courts they were called, with each circuit being responsible for a different geographical part of the country. And it created and it spelled out some of the details of the Supreme Court, including the number of justices. And it created one Chief Justice and five Associate Justices. So originally there was just six justices on the Supreme Court. There's currently nine. And with each justice was responsible for an individual circuit. And they would actually have to go out and ride around horseback and travel the colonies and hear cases in those circuits. And then they would convene a couple times of year to hear cases as the Supreme Court. The first time the court actually convened, it was 1790. And it was in New York City as that was the capital of the country at that time. And they didn't actually have any cases to hear yet because nothing had their primarily appeals from lower courts. So they kind of got together and figured out how they were gonna run things, but not much happened in those early years. The first Chief Justice was John Jay, who was one of the founders of the country. And he actually resigned from being Chief Justice to become the governor of New York, which is an interesting bit of trivia. You don't often see justices these days stepping down to get into politics, but times were different back then. And I just wanna mention one early case that's really important for understanding how the US Supreme Court works and how we talk about it today. And that is the case of Marbury v. Madison, which was decided in 1803. And it established the court's power of judicial review, which is their authority to look at a law and determine that it violates the constitution and then declare that law unconstitutional and invalid. Excuse me, Ben, can I ask you a question then? So there's nothing about judicial review in the constitution, correct? That's correct. Okay, so it was established by this very important case. Yes, right. And it really established that the constitution was law and supreme law and not just this kind of statement of principles. It was an interesting case. It grew out of the presidential election of 1800 between John Adams and Thomas Jefferson. And it was a very closely contested election. And John Adams was of the Federalist Party and Thomas Jefferson was of the Republican Party. And it was very contentious. John Adams was the president at the time, but he lost re-election to Thomas Jefferson. But after he lost, he decided that he wanted to put a bunch of his judges through. Might sound a little familiar. It's other situations we've heard about, but his party had control of the Senate and he put a bunch of judges through, including a man, William Marbury, and the Senate confirmed them, but they had not yet taken office by the time Thomas Jefferson became president. So their commissions, which was the piece of paper actually authorizing them to take their position as a judge, Jefferson refused to deliver them. And so William Marbury sued and there was a statute that said, this was the sort of case that the US Supreme Court could hear. And so he sued in the US Supreme Court saying, you have to order the president to give me my commission so I can become a judge. And the court in an interesting decision said, we agree that Marbury should get his commission and that he's entitled to it, but we disagree that we have jurisdiction to hear the case because the constitution just gives this court limited jurisdiction and the statute that Congress passed gives us more than the constitutional allows. So that statute is unconstitutional and invalid. And so it was a little bit of a sleight of hand in that it seemed to be the court saying, oh, we can't do this, we have less power. But in doing so, it actually gave itself one of the most significant powers that it has had, which is to strike down the laws of Congress if they're unconstitutional. So as I mentioned, when the court first convened, it was in the nation's first capital, which was New York City. It was only there for about a year. The capital moved to Philadelphia in 1791. And then in 1801, the capital moved to Washington, D.C., where it remains now. And for about 130 so years, the court didn't have its own building and it was kind of moved around different buildings in the U.S. Capitol building. And at times when there was construction and different things going on at the capital, it was burned down in the war of 1812, the court had to find other places to go and it met at different times in people's houses and even in bars. It wasn't quite as glamorous as it is today. Then in 1935, William Howard Taft, who had been president and then became Chief Justice of the United States, he lobbied for and got Congress to appropriate funds to build the U.S. Supreme Court building that we know today with the grand staircase and very impressive courtroom. So the size of the court has changed over the years as well. When it was the first Judiciary Act set the number at six justices for each, one for each judicial circuit. And then as the territory of the United States expanded in the 1800s, there was new circuits that were added by Congress. And so with each new circuit, there was a new seat added to the U.S. Supreme Court. So in 1807, a seventh seat was added, 1837, a eighth and ninth. And then in 1863, there was actually a tenth seat. And so that was the most justices that have ever been on the court was 10. And then in 1866, Congress passed a law that said the next three justices retire, two retire cannot be replaced. So that then shrunk the court and two justices retired shortly thereafter. So it was down to eight. And then in 1869, Congress said, okay, well, you think there should be nine and we're gonna set the number at nine and that's where it's remained ever since. There was, as some of you may know, in the 30s, President Franklin Roosevelt proposed what's referred to as a court packing scheme. And under his, under this proposal, and this was a reaction to the court striking down a lot of his new deal legislation and finding it unconstitutional. So he was feeling, you know, that his good policies that were necessary for the country were being blocked by the court. So he wanted to get around them and this was his idea to do that. And he said that every justice who reaches the age of 70 and refused to retire, that would trigger a new vacancy on the court. And so that there would be a, another seat would be added up to a maximum of 15. That proposal was not well-received in Congress and it was never enacted. Although the threat may have worked because shortly thereafter, the court did begin upholding some of his new deal legislation. So you hear, you know, people are mentioning court packing these days and that's kind of what they're referring to is something along the lines of what FDR proposed. Although I think, you know, there haven't been any concrete proposals yet, but I suspect if we see any in the future, it's probably to be adding one or two more judges not to be adding up to 15 based on the age of the current people. But who knows? So I wanna talk a little bit about how the justices are selected. This also comes from the US Constitution. Article one, which describes the powers of the president says that the president shall nominate and bind with the advice and consent of the Senate shall appoint judges of the Supreme Court. So that's all the constitution really says about the process. The rest of it has as a result of traditions and the rules of the Senate as for what their advice and consent means. So in practice, what has historically happened is before the president makes a nomination, he will consult with senators and talk about his various options that he's considering. And then when the president makes a decision, he will send that nomination. He usually announces it publicly as we saw a few weeks ago with Judge Amy Coney Barrett. And then the nomination is sent to the Senate Judiciary Committee, which is a committee in the Senate. And they, there's usually a longer period than we are seeing right now where paperwork is submitted and there's some vetting that goes on of the nominee's background by the Senate committee. But then the Senate Judiciary Committee holds a hearing, which was going on today and this week. And then after the hearing concludes, they will vote on the nomination and then send the nomination to the full Senate with their recommendation. The full Senate then debates the nomination. And under the rules of the Senate, the debate, there's no time limit on the debate. So that's where the term filibuster that means when they sort of let debate go on forever so that a nomination can advance. And then to end a filibuster under the rules of the Senate, it's a process called invoking Clotor. And it used to be that you needed 60 votes in the Senate to end debate. And now that has changed, changed first for lower court nominees, but, and then under the Trump administration, it changed for Supreme Court nominees as well. So now you only need a majority to end debate. And that's 51 votes. So then once debate has ended, the Senate will vote on the nomination. You need just a majority to confirm a nominee. 51, if the Senate may split, the vice president cast the deciding vote. Judges, federal judges and justices of the Supreme Court are appointed for life. That also comes from the constitution. The language there says, the judges, both of the Supreme and inferior courts shall hold their offices during good behavior. And so good behavior has been interpreted as forever. Unless they do something wrong, in which case the only way to force a federal judge or justice out of office is to impeach them. And that's essentially the same process as a presidential impeachment, although the chief justice would not be the presiding officer, but it would still, that's a congressional process to remove a federal judge through an impeachment. The court is in an appellate court primarily, so it hears appeals from lower courts. A case can come up from a lower federal court or it can come up from a state court if it involves an issue of federal law. And the process for getting review in the Supreme Court is another Latin term. It's called filing a petition for certiorari, which is often referred to as a cert petition. The court in any given year gets somewhere between seven and 8,000 cert petitions and it only grants review in about 70 or 80 cases. So that's roughly about one out of a hundred cases. Where review is sought, will the court actually hear it? And so that's their docket, about 70 or 80 cases a year. This past year was a, I think the term that ended in June, it was something about 53 cases. And that was because a number of the cases have been because of the pandemic were pushed to this year. So, but that was the fewest cases they decided, I think in a hundred years or something, but obviously there were extenuating circumstances. And what the court looks for when they're deciding which cases to review is, they'll look for an issue that has divided the lower courts where courts have considered the same issue but reach different conclusions. That's typically how cases get up to the Supreme Court. They'll also, it may be that a case is just of such overriding national importance that that justifies granting review too. Or maybe a situation where they view that there's a really clear answer based on a prior decision and the lower court just sort of ignore the law on that issue. The process that the court follows for deciding its cases is that after review is granted, the parties to the case will file written briefs setting out their legal arguments for why they think their side should prevail. Interested groups that are not parties to the case can also file briefs explaining how the court's decision may affect their interests. These are called amicus briefs or amicus III, another Latin term, and that means friend of the court. That's, I think, really somewhat unique about the US Supreme Court as compared to other appellate courts is that pretty much every case that the US Supreme Court decides will get a ton of amicus briefs filed because people pay close attention to these cases and they obviously create a rule of law that applies nationwide. So there's often lots of interest groups and individuals who have an interest in the outcome of the case and will file briefs to let the court know their position. After all the briefs have been filed, the court holds oral argument and that's in the courtroom where the lawyers for the parties, present their position and answer the justice's questions. Typically, each side will get 30 minutes to argue their case. And then after the argument, the case is fully submitted. The justices then go and have a private conference where they discuss the case and they will take a vote on how the case should come out. And then they announce their decision. It's usually several months between when the argument happens and when the decision comes out. And it's after that conference and after they vote, the decision is assigned to one of the justices to write either by the justice if he's the in the majority or the most senior associate justice if the chief is in dissent on that particular case and the case will be assigned, the justice in their clerks will get to work on writing an opinion and then the opinion will come out several months later and that announces the decision and provides usually a very lengthy explanation of the legal reasoning behind the decision. And that is a broad overview of the process of a little bit of the history and the process of how the court hears cases and that happy to sort of open it up to a more broader question and answer period if people have a question. Could I ask another question, Ben? And that is around judicial review. So the court's primary function, would you agree is to review the state laws or laws that are passed by the legislature and then the court gets the right in a way to review those laws and decide whether the laws are in conformance with the US constitution. Is that sort of a definition of judicial review? I think that's judicial review, right. I think that is a fair as to determine whether whether it's a state law or a law passed by Congress, whether that law is consistent with the US constitution. I should clarify though that a lot of the cases that the court hears do not have to do with the constitution. It could just be, this federal law court said, this federal law says X and this court said it says Y and the US Supreme Court needs to decide which one is right. So a lot of the cases don't have much constitution but those aren't usually the cases we hear about in the news and the big cases about civil rights and abortion and same sex marriage and things like that. Those are often constitutional cases. Right. Ben, did you have something? Do we have a question? The question. Yeah, Joanne or Tim does. Can you give us an example of one of those less important decisions that the Supreme Court makes? An example of deciding between two differing opinions of a state law, for example, rather than big name laws such as Brown v. Board of Education and so on. Sure. And I can give you an example of the case that the state of Vermont had that went up to the US Supreme Court a couple of years ago and it was the Green Mountain Care Board had an insurance claims database and they required all health insurance plans to give their claims data to this database so that state policymakers could use that data to figure out where the needs were in the healthcare system and things like that. And the company Liberty Mutual who is a national company and has employees all over the country said, hey, there's this federal law that's called ERISA that says we only have to, if we're giving our employees a health insurance plan we only really need to pay attention to this federal law and we shouldn't have to do what Vermont says and give our claims data to this state database. And so that they sued in federal court and the lower federal court, the second circuit which was appeals from Vermont said, agreed with Liberty Mutual and there was another case that raised essentially the same issue that came up I think out of Ohio maybe that had gone the other way and upheld their law and so then it went up to the US Supreme Court and unfortunately we lost but that's an example of a- Okay, thank you. Thank you. I have a question. Charlie, Charlie. In cases of admiralty law, who hears appeals and does the Supreme Court have jurisdiction? That's a great question. So in the article three of the constitution that's where it says the type of cases that the federal courts can hear and admiralty is one of those cases and so you're not gonna get and I apologize, I've never worked on an admiralty case so I don't really have a lot of experience there but I know that is a, that's an area that where those cases will be in federal court. Thank you. What is that? Okay, any other questions? I have one if that's okay with everybody else unless someone wants to ask a question before that. Okay, we heard a lot today about originalism and textualism, could you kind of address those two words and tell us what they really mean if you know? Sure. Yeah. And those are methods of interpreting the constitution and interpreting statutes and they really have become the dominant methods of constitutional interpretation in the past 20 years or so. And originalism as I understand it means that when you're looking at a phrase in the constitution like for example, due process of law or freedom of speech or something like that you go back and you look at what the original meaning the original public meaning was at the time that revision was ratified. So if you're talking about the First Amendment you go back and you look to 1789 and what did freedom of speech mean to the people who wrote those words and what did it mean then? And then the tricky part is how do you apply that in 2020? And textualism is closely related and I think textualism, it's really you're looking at the words. I think that's often used to refer to statutes as opposed to originalism being more about the constitution but it's still you're looking at the text of the words and trying to find out what the meaning of those words meant. I think our Supreme Court, the Vermont Supreme Court takes a little bit of a different approach when they interpret the Vermont Constitution and Vermont statutes and the Vermont Constitution they have a, I don't know if there's a name for it but they've said in different cases that you should look at a variety of things. You start with the text but you also look at the history and how the text has been interpreted. You also look at how different states have applied similar state constitutional provisions and then they seem more inclined than the US Supreme Court could say to do more of a balancing and look, is this, is the application in this particular case consistent with the sort of the policy behind this provision? So it's a little bit of a different approach. Okay, I'm sorry. Robin has a question and Peter Huber, I think does too, is that right, Peter? Yes, thanks. Okay, go ahead. Robin. Peter. Peter, I'm hearing about the shadow docket that the Supreme Court operates with and I'm wondering if you could tell me a little bit about that and does that conform with or contradict an open and free democratic exchange of the Supreme Court really? Well, how about you, Ben? I don't know how to answer that. Excuse me? Yeah. That's a great question and it's something that has really been noticeable during the Trump administration and I think how it's, as the Trump administration has taken various actions, then a lot of groups, including states, including Vermont have challenged those actions in court and a good example is the travel ban. Actually, I'll do a different one because that actually went to a full court decision but recently we were involved with a case about what was called the public charge rule and that was a rule passed by the Trump administration that said if you accept any sort of public benefit for a certain amount of months, such as food stamps or Medicaid, then you won't be able to get a green card essentially and that was kind of a wealth-based test for getting immigration benefits. And so Vermont and New York and Connecticut and other states and other courts but we sued in a federal court in New York. We got an injunction blocking this rule it was affirmed by the appeals court and then the federal justice department files a motion in the U.S. Supreme Court that says just they file a brief, they say this should be stayed, the lower court messed up and then the Supreme Court issues like a one paragraph or one line order saying, yeah, we're blocking the lower court, we're letting the rule go into effect. And so that's kind of the example of the shadow dock and it often comes up in these preliminary motions that happen but the effect of it is to let these policies go into effect for years until the whole case can go up on appeal but that often takes several years. So a similar thing happened with the border wall where states sued and other groups sued to block the border wall, one injunction in the lower court and the U.S. Supreme Court issued a short order saying, oh, you can go forward and build the wall while these cases are litigated. Okay, I think Robin has a question. Okay. Oh, Peter, I'm sorry. No, well, it was just a follow up but am I correct that it's the case that you don't necessarily know how the decision was reached what the number was for and against and there's no opinion or interpretation necessarily, it's just a statement of condition. It often is, which is very frustrating. If you're, I mean, it's frustrating for a lot of people but particularly if you're involved in the case and had a decision below in your favor but it can just be as short as like a one line like the order is state. A lot of times there is a split so one of the justices may write a decision setting forth their views but there's no rule that says the court needs to explain why it takes an action in those types of cases. Okay, Robin. Thank you. Okay. Hi, I wonder if you could give just a brief dissertation on the second amendment. This Amy is a constitutionalist, I think is what an originalist which would mean she would go back to the wording of the second amendment which I don't have right in front of me but it talks about militias being formed and so on. Isn't there a substantial trend in our justice history of disagreeing with the way that's interpreted now and if she were to go back to the wording, if you could talk about how it is worded and some people say it's a matter of where the comma was placed in that statement. Anyway, just curious what you think about that. Thank you and you actually, I'm currently working on a few gun rights cases at the Vermont Supreme Court so you hit on an area that I'm happy to talk about. The second amendment says a well-regulated militia comma being necessary to the security of a free state comma, the right of the people to keep and bear arms comma shall not be infringed. So not clear from the text exactly what that means at least to a modern reader, to me. There was a, I think it was 2008. The US Supreme Court issued a decision in Heller, Columbia, which really previously, I think the general consensus was that this, the second amendment did not protect an individual right to own a firearm. It was more about the right of the people and the states to form militias for their defense collectively. But in the Heller decision in an opinion by Justice Scalia, he disagreed and for the court and the court held that it protected an individual right to own a firearm. And that case involved the District of Columbia had essentially banned handgun possession in the district and the person who challenged it wanted to have a handgun in his home for self-defense. And the argument was that this is the most popular weapon for self-defense. It's kind of a quintessential self-defense weapon and the second amendment protects my right to have it. And Justice Scalia and the four other justices agreed. And so that became the law of the second amendment. And that was an originalist decision, went back and looked at a lot of the history of what was going on in the founding era and concluded that this phrase about a well-regulated militia like historically that it was kind of the militia right and the individual right kind of went hand in hand because everyone was expected to be able to come when they call the militia forth and bring their weapons and be ready to defend. And that history has kind of changed things and the fit between the two clauses isn't what it used to me. That doesn't change the fact in the court's view that the right is still protects an individual right. I was just gonna say one other thing is that as you all may know, there was some gun laws passed in Vermont a couple of years ago and they've been challenged under the state constitution which has a similar phrase, although worded a little differently and cases are pending at the Vermont Supreme Court will probably get that decision within a few months as finding out whether the new, it was that ban on large capacity magazines that's been challenged. And so the Vermont Supreme Court will decide whether that violates the state constitution or not. And following up with that, I watched what the new apparently going to be confirmed, justice talked about that. And it was interesting to me that she said that an originalist position could go back to what was meant at the time of the adoption of the second amendment. In other words, you can read meaning according to her that an originalist position also includes a reading into the meaning and to the intent of the founders. Is that right? Is that also an originalist position? Yeah, and I think the Heller decision is actually pretty interesting because both the majority opinion by Justice Scalia and the dissenting opinion by Justice Stevens were both kind of took an originalist analysis and went back and looked at what these words meant and what was going on in the founding era. I think a problem that I have with that sort of analysis is that judges, I mean, it makes sense logically, I suppose, but judges are not trained as historians. And so when they try to do this historical analysis, I think it gets risky that they're overlooking things. Or looking into things that maybe they can and can't do, right? I mean, it was sort of, I was surprised at her statement that that meant looking into the minds also of the Americans, of people, of ordinary people and what did they intend by kind of putting that in the Constitution? And after all, it was a revolutionary period, right? And so you're looking, I think, into people who just won a revolution against the British and yes, they bore arms and they maybe did think that it was their right to bear arms. Anyway, any other questions? Yeah, any questions from those people on Zoom? Yeah? No? Okay, Beth. We'll go over here. I'm curious about a couple of things. One, has anyone, has any Supreme Court Justice ever been impeached and why? Can you, I have a few other ones, but you could start with that if you don't mind. I think one, and it was very early on, and it was Sam and Chase who was one of, and I actually was reading when I was getting ready for this, looking at some of the history, getting ready for this presentation, I saw it. And I think he was, this was like early 1800s, and he, I think was just very partisan, and he was kind of going around and riding circuit like I talked about and giving really harsh sentences to people from the opposing political party and just kind of acting really inappropriately for a judge, basically. And so he ultimately was impeached, and I believe removed from office. I'm sorry, I'm probably getting the details on that a little bit wrong, but I know that in the closer to current times there had been talk about impeaching other justices. And William Douglas was, there was threats of impeachment directed against him. And he was an interesting guy, a brilliant guy, but had political ambitions and also was kind of a man of about town and his personal life too. And I forget exactly what the reason was. I think it was more of a political thing because he had been contemplating running for president while he was on the Supreme Court, but that never went forward. There was another Abe Fortis who was on the court for a while, I believe in the 60s. It turned out that he had some questionable financial relationships that he was, while he was on the court, some business interest had was like paying him a retainer for legal advice or something along those lines. And he ultimately stepped down when those scandals were revealed. So I don't think other than that first early case that any justice has actually been removed from office through impeachment. Before I jump in, anyone else? I was just gonna say that Earl Warren, they wanted to impeach Earl Warren, the Southerners after Brown v. Board of Education. Yeah, I think that's right. And probably in contrast to sort of those other situations, I think that was directly- Oh yeah, he was not impeached, but- Yeah. And directly in reaction to his work on the court, they disagreement with his decisions. Go ahead, Barbara. You're on mute. Okay. Yeah, I'm wondering if you wanna talk about this whole issue of so-called activist judges and what is the province of the legislature and what is the province of the court? Because more and more I'm hearing, from this nominee, our job is to interpret the law, whether it's right or wrong, doesn't make any difference. And it seems to me this whole notion of, everybody has activist judges of its own side, but it's very confusing to me. Yeah, I had a similar question, which came up a lot in the hearings today about policy, because the Amy, Cody, Warren, whatever, Barrett, kept talking about, don't ask me to make policy. That's not the job rule, that's not the job of the Supreme Court. And so it's the same kind of thing, like where- Where is the line? Where are the lines? And I think it's the same as, are the lines getting more blurred between the three branches? Or does that, do you think so? Good questions. I think the term activist, speaking of Earl Warren, I think the term activist sort of first began being used in response to the Warren court and the decisions, they, in the 60s and 70s, a number or 50s, I guess was Brownview Board of Education, but they had a number of decisions expanding civil rights and the rights of criminal defendants. And the argument was made that these decisions were not grounded in any words in the Constitution. It was really more of these sort of broad statements of principle and what the court thought was good policy. And that was the argument at least. And I think that's where the term came from. But as it's, I think it's used mostly today to just to describe a judicial decision that you don't agree with. And, but I mean, as I understand it, it means that you're not making a decision based on law. You're making it based on the judge's opinion of what should happen rather than what the law says. I think when you get to the US Supreme Court and talking about what Judge Barrett has been saying and what all the justices say in their hearings, I think John Roberts was famous for saying, we just call balls and strikes. That's what a judge does. But when you're at the US Supreme Court, it's because courts have disagreed over the same law and the same issue. And so it's really a smart lawyer, a smart judge can decide the case either way and write a decision to explain that decision. So it really is choosing one or the other. And there's different, I mean, yes, there's different methods of interpretation, but if the question is like, does liberty include the right to end a pregnancy, there's not really any text that's gonna help you there. That's really kind of a, really is a policy decision. I think the Supreme Court much more than lower courts really has to make what are essentially policy decisions. Mention. So when Judge Barrett says that she's going to follow the law, is that is really the role of the justices, correct? I mean, I think to Barbara and best question, if the role of a Supreme Court justice is to look at the law, right? And precedent, legal precedent, it is not to create social policy. Is that your opinion? I mean, is that correct sort of? Yeah, I mean, certainly the role of a judge is to apply the law to a given set of facts and decide the case one way or the other. I do think it becomes very tricky when you get up to the US Supreme Court where these are often the hardest legal questions that judges have already disagreed about and there aren't clear answers. So I guess the question is what do you do? How do you decide the case in that situation? What do you look to? Do you look to history? Do you look to more sort of broader statements of principle or like legislative intent? And those are all ways to kind of, I think, cabin the analysis a little bit so that it's not just what do you think is good policy? But I do think it gets pretty blurry when you get up to that level as to what the law requires and what's more of a policy type decision. Okay, I think one more. Oh, I'm sorry, go ahead. Barbara, yeah. Barbara? Well, a couple of things. One is that we work for the union and we wanted to do something. We used to tell our lawyers to say, this is what we wanna do now, you make it legal. And that's one of the jaded view I have sometimes of the law. The second thing is I think we shouldn't forget and maybe you have something to say about this too is how important public opinion and social movements are to changing laws. I doubt if there would be a law that the, I doubt that the Supreme Court would have ruled in favor of gay marriage 75 years ago, but so much has happened since then in terms of social movements and public opinion that made that ruling possible. And so I don't want any of us to forget that we have something to say about how things are ruled on too by what we do in the street. Right. Right. I think that's a great point. And I mean, that was really an amazing example of how quickly the law, I mean, on one hand, how quickly it changed from it seems like marriage being illegal in most states in the country to all of a sudden it's not, but it wasn't quick in the sense that people have been fighting for decades to change public opinion. And there was cases in state court, like there was the Baker decision in the Roth's Supreme Court in the 90s that dropped down Vermont's marriage law and led the legislature to create the civil union and then eventually legalize same-sex marriage. And all those things happening throughout the country, I think are very, you know, helped persuade the court when the issues come up there. I have one final question. When people talk about originalism, I heard this comment that kind of got me thinking and that was that they're thinking in terms of an 18th century Madison court, President Madison's court or whatever during that period of time. Well, does originalism include the amendments which were not 18th century, the amendments to the constitution were throughout the 19th and 20th century. So does an originalist just simply negate those amendments and go back to a time when you could have slavery? No, it doesn't include the amendments. I think anybody who's serious about originalism would talk about when that specific provision was enacted. So if you're, and what does the Equal Protection Clause of the 14th Amendment mean? You need to look at the 1866 or whatever it was. There's a lot more reason why, you know, we should amend the constitution these days. I mean, it's such a difficult process, but I think there's a lot to be said for making that effort to improve our democracy. One last question, Diane. Diane. I don't understand something. The Supreme Court decided on the right to marry or Roe v. Wade. They were final decisions that, you know, the Brown versus the Kansas, whatever it was. I thought that's like the final decision. So it helped me with that because we're now kind of recirculating these decisions that's absolutely final. Okay, Ben. So it's a sense that the Supreme Court decided those, you can't appeal that decision and, you know, and, but the Supreme Court does have the authority according to itself to disagree with earlier decisions and sort of change the law that way and overrule them. So that's what a lot of people have been talking about with this nomination of Amy Coney Barrett in the belief that she would vote to overturn Roe v. Wade and that now there's a majority of the court that would vote that way. There's nothing, you know, the court, you know, the court kind of can do it at once for better or worse. So if the court has the votes to overrule Roe v. Wade, it can do that. There's a doctrine called stare decisis, which you've probably heard about another Latin term, which I believe means like standby the thing decided, which is that the court generally should not overrule its own decisions unless there's really compelling reasons to do so. And I mean, the problem with that is if the court wants to do it badly and often they have the votes, they can write down the reasons that they think are compelling. So I mean, normally it looks at sort of maybe, you know, they decided a decision this way 50 years ago and then they have all this data showing about all the horrible consequences of that decision. That might be a reason why they overrule it, you know, but ultimately it depends on whether there's the votes to do it, which depends on the people on the court. Any final thoughts? Anyway, I think we're out of time. So thank you very much, Ben, for being here tonight and thank all our people on Zoom for zooming in and being a part of this community discussion. So next week, as I said, we'll have an in-person speaker to lead a discussion on bail and that's Sarah George, the state's attorney of Chittenden County. And we will try to also do a hybrid for those people who do not wanna be here in person, but she will be here in person. And so we welcome you to come back either on Zoom or in person. And this is 20 Allen Street at the Association of Africans Living in Vermont. And we thank them for the space to do this and for all the technological advice and thank Beth Sacks for putting it all together and others on the Vicki Board, Lou and Robin. And so please come back and thank you so much. Thank you. Thank you. Very good. Thanks for having me and your excellent question. All right, it. Thank you. Thank you. Bye-bye. Bye, Ben.