 I'm Chuck Crumpton, with me today is one of our leading lights, both in litigation in First Amendment issues. And one of the most respected attorneys, and that's not necessarily a really large category these days, Jeff Portnoy, one of the senior partners in the Cades shutty firm, and Jeff, welcome. That was a damning with same praise there. Thank you. Well, there were no Mark Twain quotes, so I think we got away light. All right, I appreciate the introduction. Okay, and Jeff's agreed to talk with us about what's going on with the courts, why that's important now in the middle of near the end of election season. And Jeff, what thoughts are on your mind that are concerned right now? Well, I mean, I think we just today finished the session of the Supreme Court. There was some fairly momentous decisions ending up today with the Trump tax decisions. We just saw a few days ago the religious school cases. It's just been a very, very fascinating term for the Supreme Court. And it's been, I think, surprising to some people. I mean, we've seen the emergence or the continued emergence of John Roberts as kind of the voice of reason between the left and the right. He's still probably, you know, more conservative than otherwise, but I think he's concerned about the legacy of his court and not willing to overturn cases that have been on the books for decades, trying to kind of bridge the gap between the four so-called liberals and the four conservatives. I think we see today that the two most recent Trump appointees may not be as conservative or right wing as people thought they actually voted 7 to 2 with the majority today. And I think we saw yesterday in the religious cases that two of the so-called liberal judges may not be as left as some people claim they are because they went 7 to 2 the other way with the conservative judges. So I think it's pretty clear now that clearly way to the left are, you know, Sotomayor and Ginsburg and then way to the right are Thomas and Alito, but the surprises to me are the other four, you know, Kavanaugh, as we talked about earlier, before we went on the air, and Gorsuch may not be what Trump thought he was getting. And on the other hand, I think Breyer and Kagan are showing that they're not going to vote every time with the liberals, but we still basically have a 5-4 court. Now, you know, interestingly, Chuck, a lot of speculation as to one of the two most conservative justices may step down in the next few days to allow Trump and McConnell and his gang of Republicans to nominate a 35 or 40-year-old federalist hard right justice will be on the court for 40 years. That's what I'm looking to look for in the next week as to whether that happens. So starts with the Supreme Court and then it goes all the way down to the district courts. And in terms of talking about the other courts, one of the things that's come out recently is that McConnell has now filled all of the U.S. Circuit Court vacancies, the level below the U.S. Supreme Court, and is well on his way to loading up the district court level so that almost one-third of the U.S. Circuit Court judges are now Trump appointees. By the end of the year, maybe a quarter of all federal judges. Is that going to make a long-term difference in how our legal system evolves, how rights get seen and protected? Well, it depends how you view whose rights you're interested in, right? I mean, the answer is clearly yes, but depending on your political persuasion, I think it's pretty clear that for the next two decades, more conservative views are going to be reinforced by the court than more liberal views. We see one absolutely increasing trend and that's in the religious rights cases. I mean, the so-called separation of state and religion is hardly existing anymore. The establishment clause has been ignored increasingly. And I think that you're going to see starting at the district courts and going all the way up to the Supreme Court. So if you're someone who believes that religion trumps other civil liberties like gay rights or other kinds of discrimination, I think you're going to find yourself on the losing side more and more at the district courts. And I think that'll transcend other things. I think abortion is going to find itself in trouble. I don't think Roe versus Wade's going to get reversed. But as you see, the Texas law, the Louisiana law, those are going to start popping up in 30, 35 states. So there's no question, I think, that there's been a dramatic shift in the federal court from left of center to right of center. And I think we're going to see that for decades because a lot of these judges are in their 40s. I remember that being in my 40s. It was a very long time ago. Yeah. And, you know, speaking of judges that may not have been as politically predictable as the people who appointed them had expected. Any comments on Judge Otaki's decision here, rejecting the Trump administration challenge to Governor Ege's COVID restrictions? Well, I've been on a few shows and I think it might have been with you actually two weeks ago where I told people if they had any additional money in their pocket, they didn't need for food or lodging. They ought to put it all on that case being thrown out. I mean, that case had no chance from the beginning for the reasons we talked about and, you know, why people file them, maybe for political reasons, maybe for publicity reasons. It really had virtually no chance. And I think Judge Otaki's decision is absolutely right on. Now, things may be evolving in a way that maybe it won't be that easy for the state of Hawaii to enforce some of the things that are being discussed. I mean, yesterday I understand the city council is urging the governor to force visitors to put an app on their phone that will allow the government to know where you are every minute you're here. And I think we're getting very close to Orwellian situation. So the quarantine I knew would not be overturned, the temperature testing, the questionnaires, but you start getting to facial recognition and you start getting to apps, it's going to be a much closer situation. Okay. Another issue that's becoming increasingly hot button as we approach school openings next month, especially for parents with young school age children, is that whole issue of returning to reopening schools has become extremely heavily politicized. Trump and the administration are not only pushing hard for school reopenings no matter what, regardless of new case statistics or anything like that, but he's threatening to withhold funds from areas that don't force the kids back to school next month. Is that likely to wind up in the courts? Yes. I mean, I don't know a lot about this other than what's been in the public media about what the federal government and, you know, the secretary of education is a ludicrous individual anyway. Betsy Davos. I mean, that whole story of who she is and her background and her views on education are certainly in the minority. Let me just say that. Can the federal government, I think they fund about 10%, I read, don't hold me to that, of public school funding, most of its local property taxes, et cetera. But, you know, Trump will do anything and then let the courts decide. That's what he's done for 70 years. Read his niece's book or some reads of his niece's book. He's a bully. He's, I told somebody yesterday and, you know, I'm sorry if people disagree. He's a 70 year old man in a 10 year old brain. I remember when I was a 10 year old on, you know, in school, we'd make up names and call people we didn't like stupid little 10 year old names, which he does now. So the threat to take funding away. Yeah, it'll wind up in court. I think the interesting thing is Trump can say all he wants. He has no control over whether public schools open or don't. And he's going to have to deal with teachers. He may get the schools open, but I don't know who's going to teach. I mean, you know, it's going to be a very interesting situation and it's a tough call. You know, I don't have a nine or 10 year old anymore. But I've talked to people who had to deal with it since March and they're ready to send their kids back to school with appropriate safeguards, but a classroom of 30 or 35. I don't think that's going to happen, Chuck, but we're looking at the law here and not, you know, and not the science and whatever. And it's evolving every day, right? So some schools will open and some won't. I guarantee you the private schools will find a way to open. There's some revenue there. Okay. And maybe that's a really important part of the point, which is that the conflict between the science and the politics is maybe as overt and as heightened as we've seen it. Oh, there's no question. I mean, I'm sorry, but we shouldn't be where we are. The United States, the richest, smartest, this is what at least we tell the world, country in the world has the overwhelming worse statistics dealing with COVID. Just look at Canada. Just look at Canada. You don't have to go to Sweden, although their experiment fails. You know, the two most, the two countries, us and Great Britain, and we're way beyond them. Yeah, sure. Italy in the beginning. But who else is seeing the unbelievable rise in cases? Maybe some countries in Africa. This should have been stopped back in March. And who do I blame? Who does everybody blame? You blame the president and then you blame governors in southern states who are the ventriloquist dummies for the president. Give Governor Abbott in Texas at least some credit. He has, you know, recently seen the errors of his ways, but look at the Santos in Florida. That's just outrageous. I mean, you know, he could probably be accused of manslaughter. I mean, the way that he has handled the outbreak. Now, you know, other people believe civil liberties have been violated in Hawaii has gone too far. You went crazy when we had 41 cases two days ago. My brother lives in Arizona. When I talked to him on the phone that night and said, you're not going to believe it, we had 41 cases, he said, we got 41 every 10 minutes. We got an interesting question from a viewer said, is there any possibility that Trump's proposal to withdraw from the World Health Organization withdrawal support from that during a time of pandemic? Anyway, that could wind up in the courts. Could the courts have any influence on that? You know, I don't know the answer, but you know, it has no practical effect, because if Biden is elected in November and takes office in January, there's no court case that's going to get resolved between July and January. So even if there was some legal basis and I'm just not educated enough, I don't think so. I think it's purely an executive decision, a presidential decision. Maybe Congress could override it, but of course that's not going to happen with the Senate still being in the hands of the Republicans. But the bottom line is, if Biden is elected, we'll be right back in the World Health Organization, particularly by the way, if the Democrats win the Senate, which James Carville last night said was guaranteed they'd have at least 53. He's hoping to get close to 60. I don't know about that, but I don't know whether legally there could be a challenge to it, but it wouldn't have any effect because it would never go into place before the election is over. And if he wins again, you know, the president, if Trump wins, there's going to be no impetus to put us back in the World Health Organization. We've already humiliated ourselves with that organization and with the Paris Climate Change Treaty as well. And who knows what other treaties Trump will try to undo if he's reelected. Maybe some treaties with the Indians apparently. Are there any left that we haven't broken? I don't know. There are studies and she said we've broken every single one. You know, it was an interesting story that I didn't see the other day. I was fortunate enough to go to Mount Rushmore. You know, they're carving on another mountain, the face of Crazy Horse. It's not yet completed. You know, there's a lot of money that's still needed. I'm surprised that none of the media took an opportunity that I saw to go, it's just a little bit of ways away to show the half-carved visage of Crazy Horse. It's going to be fabulous. That's fantastic. One of the things that's interesting, a story that I did see is that the lead sculptor behind the Mount Rushmore carvings. He was a Nazi. He was a right-wing wingnut. There's a legitimate reason to believe he was a Ku Klux Klan member. He was very racist. He didn't pick the poor, but... Yeah, well, you know, look, you know, I have been an advocate for free speech for a long time. And maybe even people consider me a little bit extreme on free speech. I am really deeply concerned, and this goes the other way, frankly, as to what's going on in this country to limit free speech. And I'm not talking about Confederate statutes, but I'm talking about Woodrow Wilson and George Washington and professors being fired for, you know, making a statement that some person finds offensive. This country, I just be honest, is going in the absolute wrong direction with the speech patrols that have come out. And I know people will say, hey, you know, you don't know you're not this, you're not that, you're not been subject to this. I really think what's going on here with people scared to speak their opinions is a horrible trend, and it's getting worse. And the courts, and you know, this is the thing about the courts, those cases are going to start to flood the courts before you know it. Some professor who gets fired from making a statement which some student thinks is offensive and then gets terminated, that's winding up in the courts. And I'm telling you, we're going to have a battle on how far free speech can be limited. And maybe, maybe we should. If the abuses are getting that bad. But the question is going to wind up being, are the courts a reliably impartial and independent forum in which to adjudicate those. That's always been the position, whether it's been a considered a liberal court or conservative court, the courts in general. I mean, as an attorney, you and I get to know lots of people. Well, they're not a lot in Hawaii because we're not that many judges, but we know them before they become judges. And then we get to know them when they become judges and after their judges. Look, they have their own views, you know, that they've grown up with their own politics. So anybody who suggests that any judge is pure, you know, that doesn't have any feelings or beliefs is crazy and just not being honest. And that doesn't mean, and I do believe this, that most judges, whether it's in Hawaii or other places, and of course I don't practice in a lot of other places, but I've been before judges from other jurisdictions. And I was actually in a position of meeting and talking to at least four Supreme Court justices over the years. I don't think they all mean well, but I don't think you can divorce yourself from your heritage and how you've been brought up whatever. So it is going to leak in, no matter what. But I do think most of them really try to evaluate the law and the law is not that clear, or else there'd be no litigation. You know, somebody wins somebody loses in every case. Maybe that's a subject for one of these sessions up at the law school, Josh Levinson is one of the country's leading experts writers and speakers on implicit bias. He's truly a master of that subject and maybe we could get him to come down and talk with us about that and in the courts and what role it might play what influence, how to look for it how to look out for it. Yeah, I mean, you know, I think it exists there's no way it doesn't but you know, I mean, we just talked at the beginning of the show about the last two days at the Supreme Court and, and, and you know, two liberal judges voting with the conservatives and two conservative judges voting with the liberals and you know, Roberts I think is a perfect example of a man who apparently is able to put aside whatever his politics or biases are for the greater good. I don't think he's alone. And you know what, other than Clarence Thomas who I frankly think is a clown. I don't, you know, I know there were issues about Kavanaugh and, you know, whether he had made statements or engaged in some conduct that was maybe inappropriate when he was 20 or 21 and, you know, there was some questions about Gorsuch. I just think, you know, I don't agree with their philosophy of the law. That's really where it comes down to right the philosophy. What did the Constitution mean when it was written. Is it a static document, you know, or does it change with the times and that's the philosophical battle right. I mean, you could say what you want about Scalia, who I actually debated one time, and we had dramatically opposite views. At least he made it clear how he was ruling and why he was ruling the way he was. And, you know, you have to admire him for that. I don't like the progeny, necessarily, but, but he was pure and that's why he and Ginsburg were, were best friends. And I think that's, that's another point that maybe may turn out to be important with this Supreme Court is as the justices build relationships with each other. We may start to see things like exactly what you just talked about. The justices who were stereotyped as far right, sometimes voting with those who were more liberal, and the opposite, those stereotyped as more liberal voting with those seen as more conservative and we certainly seen that this week. I mean, let's, you know, unless the Supreme Court is dealing with some esoteric issue that only the parties care about. Whenever they get into these social issues, you know, half the country is going to applaud what they do. And, and half the country is going to boo what they do you only hope that you're in the half that just did applaud what they do. And, you know, this isn't the Warren court anymore. And, you know, it's evolved to a more conservative court. And what I said, you know, a couple of weeks ago, that's a little bit disturbing. It's not that, you know, all of these conservative judges are being confirmed. I just think that's the way it goes. The president makes the nomination and, you know, vote for a president who you think is going to make the nominations that you hope and at the Senate is going to be at the same party. It's that more and more and it's still a small number are being nominated who are incompetent, you know, that the ABA finds to be incompetent, not qualified. That's almost unheard of up until three years ago. Now there's been less than 10, but that's still 10 too many. The ABA finds not competent. McConnell gets some nominated. I'm sorry. The president nominates them and the Republican Senate approves them because politically, they want to put these not competent people on the bench. That's the disturbing trend. It is so many commentators feel that the court composition was a big issue in the 2016 election. What do you see for 2020 is in a major issue. Are there other things that dwarf it. I think I think Trump will make it a major issue is run out of anything else. You know, what has he got his tax returns are now going to get produced somewhere along the way COVID is out of control. Race relations are the worst they've ever been the economies in the tank. What's he got left. Well he's got Confederate statutes and tradition right. I'll use that word tradition. Right. You can use it any way you want what tradition. But and he's got the court, which is what he ran on four years ago and was effective. There's no question that from the polls that I saw. Many people who voted for Trump that was the single most important issue. And I think although today he ripped the Supreme Court apart, because they didn't like what they said about having to produce his tax returns and that the Supreme Court is not immune from being prosecuted, which is fascinating and and really a great part of what happened today. Maybe not while he's president, but he's got the court. I don't think on the other side, I'm not sure how much Biden is going to focus on the court, because I think it's a divisive issue. You know, I'm not I'm not running his campaign obviously, but I'd run on COVID and and things like that where 7075% unanimity, how it's been handled incorrectly. The court I think is divisive but abortion is going to become an issue. You know that particularly in the southern states and the border states. And I think what's happened today now yesterday he loved the court. Right. Today didn't like it so much so we'll see. So between now in November. What do you see happening that may influence the direction for the electorate. Got a couple of minutes left. I can't answer that you know things change every single day. You know, depending upon the disease and the ramifications of the disease. I think I really do I think we have one of the most critical elections in my lifetime and now that's 70 plus years. I know people say that every four years but it's a lot of garbage I think this time it absolutely is. And and I think that's what's going to ultimately happen. I mean, you know, something something completely unanticipated could happen tomorrow that could change things dramatically. I just hope that in the next four months. McConnell after they come back from their break doesn't put another 50 judges on the bench. And I think you articulated earlier that that's their goal is to try to get from one quarter to one third before maybe they're out of office. Okay, winding up down to our last minute or so. Any last thoughts. I've probably had too many already. I appreciate being on and it's been a fascinating year for the Supreme Court I think all in all it's been a fair year. I think that you know the court has tried to weave its way through the middle I know there's been some cases that people, particularly religious liberty and, but you know you look at the gay rights decision and the tax decision so, you know, I don't think there's a way to pull your hair out. I just hope he doesn't get to nominate a young conservative Supreme Court justice from the Federalist Society, that'll be on the court for 40 years, and we'll see what happens in November. Jeff, thanks so much for your time for your thoughts for your insights. We'll be back in two weeks, and hopefully we can get Josh Levinson to join us and talk about implicit bias and its role. Where do you send the check? Where do you send the check? See you Chuck. Thank you. Be good. Be safe.