 this is life in the law, and I'm so happy that Abbie Soyfer, formerly the Dean of the William A. Richardson School of Law, noted constitutional lawyer, a follower of the Supreme Court for his whole life, is going to join us today to talk about Clarence Thomas. Because Mark Wolf, a federal judge in Massachusetts, has testified in Congress only a few days ago and brought some really revolutionary things to our attention. Now, welcome to the show, Abbie. It's so interesting that the Supreme Court sucks up so much oxygen these days, and people are all losing confidence in it and so forth. But I heard a thing on NPR that it made me wonder that maybe the Supreme Court was actually doing stuff. It was the Andy Warhol's case. The New York Times covered it on the Times this thing called, I think it's called The Daily, and it's a sort of a podcast on NPR, and I realized that no, they actually come to work. No, they actually sit in the courtroom and actually hear cases. They don't spend all their time defending Clarence Thomas, although one would wonder. Welcome to the show, Abbie. Thank you. They're also attacking those who are attacking the court these days, some of the justices when they're out speaking, and it's actually pretty revealing who they're speaking to after the abortion decision, after the dobs. I think that our justices, Alito spoke at a Notre Dame event in Rome, for example, and he really had it in for those critics of the court who didn't understand what he was up to, and Barrett also, they want to insist that it's all not about partisanship, it's all just the usual thing that justices do, and you're right, they're still doing the usual things that justices have done, but they're doing a lot of exceptional things as well. That's probably what we ought to focus on today. Yeah. By the way, do they call the people who attacked them engaged in witch hunt? Witch witch hunt. Sandy Warhol, that was pretty newsworthy, but you probably didn't notice an important dormant Congress clause decision that just came down within the last week or 10 days, which was the National Fork Producers Council versus Ross, who's the Secretary of State, I guess, in California or was at the time. The court was split all over the place. They all thought it was unconstitutional, rather than it was constitutional, none of them thought it was unconstitutional, but boy, they had different views about why that was. This is an interesting animal rights case. They have by popular vote initiative over 60% said we don't like the way pigs, breeding pigs are raised in places like Iowa, and they're not allowed to move, and it's really pretty awful. They said we're not going to allow pork from those pigs to be sold in California. That looks like it's interfering with the free flow of commerce, but the Supreme Court found lots of reasons to say it wasn't. Strange they should be involved in that. All of a sudden they have a conscience about the pigs. Really? What about the people? If you want to be a textualist, as they claim they are, the very notion that there's something called the Dormant Commerce Clause, which is Congress might have done this, they haven't done this, therefore the courts will do it. Well, that's not exactly textual, is it? This is a mainstay of Supreme Court decisions over well over 100 years, and they're back in the fray arguing about whether California can do this or not. There's a recent, I guess, citation to it, I haven't read it yet, about foie gras, and whether you can actually regulate foie gras, and apparently the Supreme Court decided not to take that one. They've already gotten through with pork chops, but they're going to allow California also to say you can't sell anything where there's forced feeding of geese to enlarge their liver unnaturally. That law is still standing. It's upheld. You know, this actually takes me to a conclusion I've been working up for some time, that Animal Farm, the book you remember, it's still in play. We get the contention between the geese and the pigs, right here in the Supreme Court. And some are more equal than others. Yes, there it is, there it is. So there's been so much news about them, and the fact that they actually bite back when they are criticized, that is really new. I mean, if you look at the Supreme Court for our entire history, that really hasn't happened. It's been so completely politicized. And even if they can handle Andy Warhol's on a rational basis, even if they can handle that in an irregular business like manner, the fact remains that we don't have as much confidence as we have hoped to have. They've kind of led with their chin, which may be why they're talking, trying to get their chin moving. But a moving target is always more difficult to hit, but they led with their chin in the so-called shadow docket, which is intervening without hearing argument, without briefs, intervening on their own sense that there is an emergency. And there's a very good professor who teaches at Texas named Stephen Blodik. And he's just published a book, I think it's just out this last week. But he's been writing about this for a while, and he has numbers that are just shocking as to how many times they've used that technique in the last few years as compared to any other period. And they decide something is an emergency that doesn't seem like an emergency to other people. They were particularly concerned about emergencies, which were, because of the pandemic, there were regulations as to how many people could worship together. And they thought that was an emergency. The first case came out on Thanksgiving Eve of 2020. And they said that then Governor Cuomo couldn't go that far because it was an emergency because it interfered with freedom of religion, free exercise of religion. Now, it wasn't in effect. It was scheduled to be argued in the Second Circuit, but that was an emergency. When Texas passed an amazing restriction on abortion, including letting lay people get bounties if they turned people in, that was no emergency. That stood for 10 months. There was no emergency there. Let me remind you of about Ate Fortis. So Ate Fortis resigned. It was a scandal. It was a shameful thing that he had taken some money from a rich person. Right? And that changed what the court did. Changed the court, it changed what the court did. In addition to being a star violinist, he was a pretty good lawyer and judge. And it would have made a difference if he stayed on the court. But that was a big to do and he was off the court. Well, those were the times we came up, Jay. And these times seemed very different. Yeah, well, I mean, one of the big points he made in his written testimony and when you see him on YouTube is that in 2011, he got caught with his hand in the cookie jar. Somebody caught him for failing to report these substantial gifts to his wife, whatever it was. Yeah, that was the issue then. That's right. And he completely reversed himself. And now he started to report. He filed new forms and all this and... He's amending. He's amending. He's amending, whatever. Amending and what Mark Wolf trots out, which is very, very interesting and provocative is that for the years prior to 2011, he had been reporting gifts to his wife. So all of a sudden he stopped. And when he was found with his hand in the jar, he started again. And he said, gee whiz, I didn't know. But if he didn't know, why had it been reporting before? There is a weakness in his defense. But one of the reasons that I am perhaps even more skeptical than you about what's going to happen is that other justices are implicated. And in particular, the Chief Justice, because his wife has been making literally millions of dollars in a head-hunting firm. And there seem to be some overlaps with who the people getting benefits from her work might be and those who are appearing before are interested in what the court is doing. And then there are other somewhat luxurious trips, not when they come here, I should add. We don't give any honor area when we have a justice in residence. But they do get to come to Hawaii. And we pay their airfare and we feed them and put them up. But it turns out there's a question about Sotomayor and her book contract, and then sitting, I guess, in a case involving the publisher and so on. So it's tricky to know when a justice or judge should recuse. And for the most part, it's been on their honor. They decide whether the appearance of conflict is enough to have them off the case. You know, when I saw that testimony and heard about his testimony in Congress, I thought, wow, this is a scoop. So you felt the same way. It's very provocative. It's remarkable. And I thought the press would be all over that in every way. And it would really let him have it. It would follow Mark Wolf's lead on this. But you know what? I saw it once. I didn't see it all over the press. And I'm saying to myself, why did I not see it all over the press? Is this uninteresting? Well, it may be that it takes a while. I mean, it's a little more complicated than some of these other stories to explain who Mark Wolf is and why he's testifying what the judicial conference, judicial counsel, what they do, and so on. But I'm with you. I'm surprised it hasn't gotten more publicity. And it should. And it was on CNN, I guess, as a pretty brief. Yeah, I saw it for just a moment. I mean, a short segment on MSNBC. But you're right. It was a short segment. And maybe it was because you had to explain too much to make the point. Yeah, well, I think that is a problem of particularly the way we are getting most of our information. And let's hear it for the press and for programs like this, which we help get into the complexity a little bit. And I think we do have an independent journalistic establishment, if you will, but we also have the likes of Civil Beat, which are coming along and making important independent judgments and reporting on things we otherwise wouldn't know. So let's hear it for the First Amendment, which, after all, specifically protects the press, which people forget, including Citizens United, which said, oh, look, they're corporations, too. And Citizens United is part of the reason that we're in this mess going back to what the Supreme Court did more than a decade ago. So here's my question to you. And it's not limited to the affair with the billionaire or any of the individual justices who may have similar stories to tell. And it's not limited to what the press says it doesn't say. The court is in a different place, I'm sure you'll agree. And it's being criticized. And one of the things, like, they fight back and they argue with those who criticize them. It's a different animal lately in the last couple, three years, whatever. And my question to you is, is this criticism, which I'm sure will continue and get worse, this criticism, will it change them? Are they changing with the changing times? Well, Stephen Vladek, when I mentioned before, has an op-ed piece in The New York Times today in which he says, yes, he thinks that the public outrage that has been bubbling about the shadow docket, but also about this court and the inconsistencies day to day, I mean, we leave things to the states. Well, not when it comes to guns, but yes, when it comes to a board. Those are back to back. They're a day apart, those two decisions. So he's saying it sometimes does. And he, as he looks at the shadow docket and independent, justice can write a concurrence or a dissent on his or her own. He thinks it's already making a difference. And there are famous examples of the Jehovah's Witnesses during World War II, or the prime example. Supreme Court had upheld a mandatory flag salute, which was a straight arm salute. It was like a Nazi salute. And then three years later, one of the greatest opinions of all about freedom of speech, freedom of expression was written reversing that case. And Felix Frankfurter, who had written the first case, was a very bitter justice when the first Justice Jackson wrote that great case in, I think, 1943. We don't see a lot coming from the press. We certainly don't see a lot coming from the, what do you want to call it, conservative establishment. I'm not sure that the liberal establishment is as vociferous as it maybe it should be. But who can speak to this? Who can keep the pressure up? So if I say to you, you know, there are X number of law schools and law reviews in the country, X number of professors in the country, law professors, you know, professionals who presumably know more than the average fellow, a girl. If they took up the mantle of criticizing these decisions, you know, open criticism, this is irrational, this is inconsistent, this is, you know, detached from public policy and the public. If they were more, may I say brutal in their criticism of the court, would that help or would people not care? Well, I think the more brutal the less it looks academic, I guess. But I don't fool myself into thinking that I've written a lot of law review articles. I don't think anyone reads them, I know that. I mean, I know better than that. But I think we are increasing people like Vladek taking to op-eds and so on. I mean, I've been writing some for the Hill, which is out of Washington, but I think people only read it for the politics, not for the op-eds. So yeah, I mean, that's doing the work. That's what it's about. And I have been saying to people that it is a challenge to teach constitutional law now with a straight face because you don't want cynicism. You do want people to understand there are inside baseball things about constitutional law. We have a constitution. We have language in it, that's the starting place. It's not the end, I would say, despite what the textualists say, but it's important to know what has been said about the constitution. And I mean, as I said, in the Storm and Commerce Clause decision, so I think it's Kavanaugh. He says, well, I don't much like that, but we could use full faith and credit. We could use import, export. We got lots more text. Well, that's true. There are still parts of the constitution that I haven't looked at. And I think that the Biden administration is making a mistake and sort of poo-pooing going to the 14th Amendment, something that I've written about in other contexts, and say, oh, that looks, we don't have time. Well, nonsense. I mean, you can get things in a big hurry in these emergency orders, for example. And there is something to be said for what the 30th and 9th Congress was doing in the 14th Amendment about debt and about national debt. So it's actually on point. Anyway. You enlarge tribe. You enlarge tribe. And large tribe who said he changed his mind. That's right. Yeah, yeah. Let me go one step further. So you have the bar. You have the legal profession. You know, a tremendous number of which are, they're not particularly idealistic. They're trying to practice law, feed their families and their 401ks. And why isn't the bar in the state of outrage over this? Don't they believe in the rule of law? I don't believe the Supreme Court should be beyond this criticism. Why are they not stepping up? Well, it's a good question. And I think it takes some time. And of course, you're asking for a group decision, right? No one person speaks for the bar. So you have to get it through committees and so on. So it takes a while. I think we will see some of that. And I think, I mean, the bar here marched as I remember, you may have been with this group as I was about Pakistani judicial independence. You know, we stood up for very courageous Pakistani judges at the High Court. That may happen. And I guess what I was saying in underscoring what Vodic said was public response, I think has mattered and should matter. It doesn't decide these cases. And Justice Sotomayor was asked sort of the question about how do you do this? How do you keep doing dissents when you know you don't have the votes? And her answer I thought was a very eloquent one, very simple one. She said, it's not open to us to give up on these rights. People died for them. People were beaten for them. And she said, I believe in the famous phrase about the arc of justice, the arc bends towards justice. And she said, sometimes it takes a very long time. It was a hundred years between Dred Scott and Brown versus Board of Education. So you keep at it, you keep at it. And I appreciate that you're giving me this chance, but that you do it a lot, Jay. This is a very important thing. I don't know how much this influences public opinion in a measurable way, but getting the ideas out there, talking about them, that's what I want to tell my constitutional law class. And that's my last question, Abby. You know, the people in your constitutional law class were still in puberty at the time Trump was elected. And the time goes by, they were great school when this 2011 affair took place that Mark Wolf is talking about. And they get older, hopefully wiser, although there are so many questions about education these days. But the reality is always changing. There's a dynamic. And I'm sure you've seen it. You've been teaching constitutional law forever and you've seen it changing your class. You've seen their attitudes change and their agendas and their influences and so forth. It must be very interesting to watch that dynamic over a period of years. And I learned from them too. You said in puberty, was that a small town outside or is it private school? You said they were in puberty. But anyway. It's in Florida, it's in Florida. So I actually remain an optimist for all that I may not appear to be about the Supreme Court, largely because of the students, because I learned from the students and I see idealism and I see that they are way ahead on some of these, I mean climate change is the most obvious thing where they are taking it seriously and they are trying to do something about it. But they're also much more sensitive to issues of race and class, I think, than has been true for decades. Now it's not to say that they're the most sensitive ever and we thought we were pretty keen in the 60s. And I think we kind of messed up in a number of ways. We're giving them a troubled world in terms of climate change, in terms of social security, you name it. We're not handing them a very good starting place. But I have some faith in them and I see a lot of idealism in them as well. We've got to get them into positions of power. We've got to get them to be the leadership in the ABA. We've got to get them on the judicial conference so they can make the tough decisions and deal with this under the law, the facts without fear of favor. The second justice, Jackson, I think, is another reason for hope and she is what, 51? She'll be around, let us hope, for a long time. And I think she and Sotomayor are actually gonna change the internal dynamics. They don't have the votes, obviously, but they're gonna embarrass some of these more senior justices who are likely to be more conservative. Yeah, I got this vision. We're almost done here. We're almost out of time. I got this vision about Jackson and Sotomayor and they read the draft of a given opinion that's being circulated and they walk into the office of the justices who made ridiculous comments that are in the 12th century in this opinion and they say together as in one voice, they say, are you kidding me? We'll never hear about it but that's what I would like to have. Well, I think that's right. And some of the Gorsuch in particular is given to these extreme statements. So there's a column about this too. Never in peacetime has there been something as awful as happened with executive orders during COVID? Really? Never in peacetime has there been such an intrusion on civil liberties? And that's what he says. And he said it in one of those emergency opinions, a concurring opinion that Thanksgiving Eve decision when I talked about it and he just said it again in terms of Title 42. We have to remind people about history, for example. There ought to be a test. And the academicians have to administer the test and they have to pass your test, Avi, before they can sit in it. That will never be adopted. Thank you, Avi. Avi Soyfer, formerly the Dean of the William A. Richardson School of Law now teaching constitutional law and helping us understand very difficult dynamics in the Supreme Court. And that is just one of many shows that we will do hopefully with Avi. Thank you, Avi. Thanks, thank you, Jay. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram and LinkedIn and donate to us at thinktechawaii.com. Mahalo.