 Everyone, I'm Carol Hinkle, president of Triple E. I wanna thank you all for joining on Zoom today. Hopefully you all did receive the email that we had to not be at the church this morning. We had to make that decision by 830 and we expected ice and a little snow on top of it and that's what we got. That's really dangerous and we're trying to keep everybody here safe. It just reminds me that I wanna suggest that you all try to check your email every Friday morning by 11 a.m. Just in case we have some crazy thing. Maybe there's no heat at the church, maybe the speakers sick, maybe we have ice, whatever. So make it a plan to check by 11 every Friday morning to make sure there's no changes or alterations. By the way, a couple of people today said that our emails went into their junk mail or spam. So you wanna be sure to check that those places too. I wanna suggest that you learn how to, if you haven't already, ask questions. So Kathy Chamberlain is gonna monitor the questions that you ask and you can start now, anytime during the lecture. If you have an iPad, it would be at the top of your screen. If you have a computer, it would be at the bottom of your screen, but you wanna touch those areas and see the Q&A button and apple pop a screen. You can type in your message and then either push the arrow or push return on your computer. And please, we want lots of questions. We'll open that session up at about quarter of three. Okay, so now I wanna introduce our speaker, Jared Carter. For those of you who've been members for a while, you've had the pleasure of hearing him before. We're thrilled that he's starting off our spring session. Doesn't seem very springy. Anyway, Jared Carter graduated from Vermont Law School in 2009. In addition to serving as an articles editor on the Vermont Journal of Environmental Law, he received an Equal Justice Foundation Fellowship to litigate a constitutional challenge to US Treasury Department regulations, prohibiting travel to Cuba. A veteran attorney and advocate for social, legal and economic justice, Professor Carter spent a year as law clerk to justices William Leppert, Jim Rice and Jim Nelson at the Montana Supreme Court. Professor Carter returned to Vermont in 2010 to teach and practice law and teaches natural resources law, political lawyering, legal writing to appellate advocacy and climate change in law. In addition, he's developed study away courses that take students to Cuba to learn about the Cuban legal system. An active member of the Vermont law, he also directs the Vermont Community Law Center, litigate constitutional and consumer rights issues in state and federal court. Professor Carter has a wealth of relevant experience and is dedicated to bringing his diverse background to the classroom. He is an avid outdoors person, backpacking, canoeing and fly fishing in the warmer months and cross country skiing in the winter. Despite the fact that Vermont is landlocked, he also enjoys surfing and does so in the frigid waters of the New England coastline. Please welcome Jared Carter. Great, thank you Carol. And thanks to Triple E for having me back. It's been a long time. In fact, I think the last time I presented was in the pre-pandemic world in 2019. We talked about some important issues confronting the US Supreme Court. And certainly a lot has of course changed since then and the court is different as well. And so I'm really just thrilled to be back and it would have been great to see everybody in the church, but I think probably the right call I was chatting beforehand with Carol and others as I was driving in, I'm at the Vermont Law School Burlington office today, which is nice, but as I was driving in, I saw several people fall over on the sidewalks. So I think it's pretty slick out there. At least it was this morning and I truthfully haven't ventured out since. But I'm really happy to be back and to chat with you all about where we're at today with the US Supreme Court, democracy, the rule of law and also what are some interesting and important cases that the US Supreme Court is either confronting right now like deciding soon and or that I think they're gonna be confronting in short order. And there's a lot of really important ground to cover in our hour. I do wanna save a chunk of time at the end for question and answer. So please do drop your questions in the chat. I'll look forward to trying to answer them as best as I can when we get to that point. So the Supreme Court today, democracy today, the rule of law today, I don't know about all of you, but the past few years have been a difficult few years. I think there's a level of anxiety in our society, in our democracy that certainly, I've never seen before. I think part of that is the pandemic, part of that is the divisiveness of our politics. And while Vermont perhaps isn't ground zero for this, it's certainly not immune. So I think I would start this conversation off by acknowledging that reality. And the US Supreme Court is of course a part of that and is going to be impacted by that. So I think we're perhaps right to be apprehensive, we're perhaps right to be nervous about the status of democracy and the rule of law in 2023. But for a whole host of reasons, while I'm certainly concerned about some of these things and they're obviously important things, I personally have faith in our commitment, our broader commitment to the rule of law, which the Supreme Court in my mind really represents. And I think when I get nervous about these sorts of things, when I start to worry about, where is our democracy going? Where's the rule of law going in the future? I think it's important to reflect on instances that are past where law, the power of the law, the rule of law have most shown themselves. And if you look at that history, it's often been two steps forward, one step back, but the rule of law has been a constant. And oftentimes the places where the rule of law moved us forward the most were after times of great upheaval, great confusion, in some cases violence, right? So you think about all the way back to the founding of the country and the revolution, the United States Revolution, which of course was a violent event. People dispossessed of land, battles fought, teeth thrown in the ocean, among other things. And out of all that chaos and violence and risk, what did we get? Well, two steps forward, we got the Bill of Rights, the first 10 amendments to the US Constitution, we got our independence. Of course, with those two giant steps forward, there were certainly steps back. Those wonderful Bill of Rights rights that we enjoy didn't apply to really anyone outside of wealthy men. And indeed, the Constitution that came out of that revolution enshrined slavery in it explicitly. So the rule of law moved us forward, but also was responsible for pulling us back. But we made progress and there was always opportunity to make more. And I think the rule of law was a big part of that. You flash 480 more years to the Civil War, right? Of course, great violence. People, millions of people in slavery, enslaved, the Fugitive Slave Act, battles that, in which many, many people were killed, literally family against family, as we know. And yet out of that sort of crucible of violence and danger and division, right? We got the 13th, 14th and 15th amendments, right? Banning slavery, guaranteeing the right to vote and protecting the right to equality and equal protection clause of the 14th amendment. And yet, of course, even in that era, with those steps forward, that gave birth to things like Jim Crow. And still, even at that time, women couldn't vote. So two steps forward, one step back, but the rule of law was always there. The Supreme Court was always there. You flash forward another roughly 80 years, right? What do we have? The Great Depression, right? I mean, red lines, people losing their property, losing their jobs, Hooverville's, right? Across the country, grapes of wrath, really difficult times, but we got the new deal, right? The social safety net, social security, employment labor laws to protect folks. And so we took a giant step forward. Some would say those changes were sort of the starting place for the incoming inequality that we see today. But I guess the reason I sort of start with that quick historical narrative, and of course there's other major turning points in U.S. history is because to me, I find comfort in that, right? Even for those two steps forward, one steps back, even in those times of real chaos, real division, real difficulty, the court and the rule of law found a way forward. And I think even in this time of great division, right? COVID, January 6th, the Supreme Court, the Dobs decision regardless of one's perspective, all of these things make us feel like things are out of control and the division does feel great and perhaps it is real. But I always find faith in that rule of law and the Supreme Court really embodies that to my mind, right? What is the rule of law? Everybody could of course come up with their own definition, but to me it's something that's not really tangible. It's an idea, right? That what the court says, even if we disagree with it, is the law of the land and we're willing to accept that, regardless of whether we agree. Now, maybe we disagree with the decision of the U.S. Supreme Court, but we accept it as the law of the land. That's the idea of the rule of law. Maybe we organize to try to change it politically. Maybe we organize to try to elect a different president to put new members of the court in over time, but we accept it as the law of the land. And I think a society that stops doing that is in real trouble. You have a real constitutional crisis because remember, unlike Congress who has the power of the purse, right? They can stop funding things or the executive branch, which can use, I suppose, theoretically, its military might, its economic might to influence things. The U.S. Supreme Court has nothing. There's no army of the U.S. Supreme Court or police force to go out and enforce their decisions. They're enforceable only because our society believes them to be sacrosanct, even if we disagree with them. And there's plenty of U.S. Supreme Court decisions that I disagree with with all my being, but I still recognize that that's the law of the land and I might organize, I might litigate to try to change those laws, but the rule of law is I think that acceptance that we are a nation of laws, not of people, so to speak, and that nobody is above the law and that even if we disagree with the law, it is the law. And to me, that's a fragile thing because it's not written in a constitution somewhere. It's not a document. And so it's scary. And I fear for it in some ways because of where the U.S. Supreme Court is today. And I don't mean that in a political sense. I mean that in a credibility sense. Historically, the U.S. Supreme Court has been one of the more popular branches of government of the three. It usually has the most support, the most trust of the American people. And in recent years, we've seen that really decline. And my concern is that if it declines to such a point where we no longer give it faith, right? We no longer accept its rulings as a society, then I think we're really treading into dangerous water. And some of these, this loss of credibility, shall we say, in the court have been self-inflicted wounds. The current Chief Justice, Chief Justice Roberts, I think is an institutionalist, does care about the courts as an institution. But nonetheless, if you kind of walk through the past, I don't know, decade, maybe a little less of the court, it's been a much more politicized body. And I think there's real risk in that. I mean, you go back to the Merrick Garland situation in the Obama era. And I think you can sort of trace it from there. It's almost been like a Democrat Republican tit for tat in the Supreme Court, which doesn't really have any mechanisms through which to defend itself has become a political hot potato. And I think, again, regardless of one's political views, that's a real risky game to play for both parties. Right? Think about, of course, the Leak Dobbs decision that we all read about, saw. And quite frankly, the subsequent investigation that thus far, they haven't been able to solve that is really quite troubling. Right? People would like to think that the US Supreme Court could keep its house in order. And I think our faith in it is based on that trust. And yet they can't figure out how it happened. And so I think there is this sort of crisis of confidence right now in the court that if we don't figure out, may cause pain down the road. And that's a scary thought. And the only thing that sort of keeps me as somebody who studies and teaches this from losing sleep at night, and I do lose a bit of sleep. And I probably have more gray hair since the last time I presented to you all in 2019. But what prevents me from losing too much sleep, I think is that historical context that I started with. That ability of the country through the rule of law, even in difficult times to move forward, to make progress, even if it's faulting progress, a step forward, a step back, two steps forward, a step back. And I think that's in large part what gives me faith. And why I think that even in these difficult times, the Supreme Court can be a really important part of helping us step back from that break. But it's going to require us having faith, even if we disagree with the decisions of the court. And the court's going to be making some very important decisions as it has recently in the coming weeks and months. There's an array of cases that are currently before the court that have been argued already, that we're simply waiting for decisions on. And I'll touch on some of those in a moment, but just to highlight, there's a major environmental case. Sacket VEPA that's been is before the court and will be decided in the coming months. There's important issues around affirmative action, voting rights, that's before the court that will be decided in the coming months. And I think there's some really important first amendment issues. One is before the court now and one I think will get there sooner rather than later. And I think it's important that we should all be thinking about. And so I want to talk about a little bit about each of those in the context of this idea of rule of law democracy, the Supreme Court today. Because they're going to impact us. And I think it's easy to just be here in Vermont or quite frankly anywhere in the country and say, well, the Supreme Court's, you know, it's far away, right? It doesn't really have an impact on our day to day lives. And for some of us, that may be true. But for the vast majority of us, it really does have a major impact. Its rulings are the law of the land for good or bad. And it impacts us every single day. And yet it's I think a branch of government that we don't hear much about, we don't talk much about. And perhaps that's by design, right? It's not meant to be a political branch. The framers tried to insulate it from politics, which quite frankly is one of the reasons I personally have been a bit horrified by the idea of adding justices to the court, which I know has been something folks have talked about. Because I think the downside risks of doing something like that, regardless of which parties in power at the time, only serve to further politicize the court. And in some ways, I think there's a short-sightedness to that approach because if we view the court purely through a political lens, then does one half of the country just stop accepting the court's rulings as the law of the land, depending on the issue? I don't think a constitutional democracy can survive very long in that space. And so I take the view of the US Supreme Court today, and I'll talk about this more as we walk through some of these cases. But I take the view that what we need to do is depoliticize the court, right? The framers set it up so that justices war justices for life. Now, maybe there's some tinkering we can do around there, but I'm very hesitant to endorse any idea that would allow Congress to remove justices outside of the impeachment process or to reduce their pay or to regulate the way that they engage for the very reason that, yeah, there might be good reason to try to get Supreme Court justices to do certain things in the short term, but in the long term, it just becomes another political body. And unlike the other political bodies, it really is the one that is responsible for the rule of law that is responsible for the credibility of the laws that we have in this country and the democracy that those laws are based on. So what are the big cases before the court right now? And I tried to pick a few that might be of interest to people with a different background of interest. So I want to highlight an environmental case that I think we should be paying attention to. I want to highlight the affirmative action cases that we should certainly be paying attention to. And then I wanted to highlight some First Amendment issues, including a case that's at the court now and a case that I think is percolating up in that direction. So the first case is a case that I mentioned earlier called Sackett v. The EPA. And it is a case out of Idaho in which the plaintiffs, the Sackett side had wanted to build a house on a lake in northern Idaho, right? I guess the Panhandle of Idaho. And that might seem like an unlikely place for a U.S. Supreme Court case to start, right? Way out in the hinterlands of northern Idaho. But they wanted to build this house a few hundred feet from a body of water that was essentially a lake that bordered both the U.S. and Canada across the border. So it was way up in northern Idaho. And as they began to move forward with their construction, the EPA came and said, you can't do it. You're going to be impacting in a negative way. Waters of the United States and under the Clean Water Act. Which is a law that was, you know, past some 50-odd, 60 years ago. It's not quite that long, but it's been on the books for a while. A law that really helped us clean up the waters of this country. The EPA said, you can't do this the way that you want to do it. And they, of course, sued. They sued the EPA. And the case moved up through the, the Ninth Circuit Court of Appeals, basically on this question of what constitutes a water of the United States. Because under the Clean Water Act, the EPA, the Federal Environmental Protection Agency, is allowed to regulate waters of the United States. And not to get too wonky, but that authority actually comes back to the Constitution, which granted Congress the power to regulate interstate commerce. And, and obviously at the time that the Constitution was drafted, a big way that commerce happened was via the waters of the United States. And so Congress passed the Clean Water Act, asserting that power over waters of the United States. And wetlands have consistently been considered a water of the United States. And yet in this particular case, the argument from the Sackett's perspective is that the wetlands that they're going to impact don't actually intersect enough with the waters of the United States, the navigable lakes and rivers that the Clean Water Act has jurisdiction over. And the upshot, if they're successful, is that the courts will then apply a very stringent test, which will limit the EPA's ability to enforce the Clean Water Act, because a whole category of wetlands, which are obviously very important for biodiversity, climate change and the like, a whole host of wetlands will no longer be within the authority of the EPA and fall under the Clean Water Act. And it will basically, if the Sackett's are successful, it would basically require the EPA to show that in order to manage any of these waters, they actually have to flow into a navigable river or waterway, a channel used for interstate commerce, which in some level you might say, well, that makes sense, right? But as the Clean Water Act allows the EPA to manage the waters of the United States, is the mud puddle in my backyard a water of the United States, right? And the answer of course is no. But the problem is, as you expand that out to wetlands, right? Clearly, even if on the surface, they're not connected with a navigable river, the groundwater cycle means that in the end, pretty much every significant wetland is going to be connected to a navigable water of the United States and would impact a navigable water of the United States. So changing, it sounds a little bit wonky, but truthfully changing the way that the Clean Water Act is interpreted in the way that the Sackett's are asking the court to do would, and some people might think this is a good idea, and that's perfectly fair. Others certainly don't think it's a good idea, which is also perfectly fair position to take. The upshot though would mean that the EPA would have significantly less power to enforce the Clean Water Act when it comes to wetlands in the United States. And so I think this is a hugely important case, and one that maybe isn't getting as much attention as it should, but will have a major impact. The second case I wanted to highlight is a case, actually there's two cases before the court, and they essentially consolidated them, but there are affirmative action cases. One brought against the University of North Carolina, the other brought against Harvard, but the basic premise of these cases is that affirmative action results in discrimination, in this case against Asian Americans and Caucasian Americans. That's the argument that the plaintiffs are making, that affirmative action is in fact in violation, they argue, of the 14th Amendment, which as I mentioned before was a post-Civil War Amendment meant to ensure that formerly enslaved people were granted equal rights under the law. And so the argument now is, well, these affirmative action laws, or excuse me, affirmative action regulations at these two schools, but many schools have them, are unconstitutional under the 14th Amendment, equal protection, and illegal under the Civil Rights Act. And the sort of interesting piece about this is that these affirmative action law policies have been challenged numerous times and have always been upheld in one form or the other. There was a challenge in the 1970s. In 2003, one of the better-known affirmative action-related cases, Grutter B. Bollinger, involved in the University of Michigan law schools, affirmative action policies were largely upheld, and in 2016 as well. So I think people that watch the court are concerned that this time might be different. It's a very different court. But they're really looking at, can schools have race-conscious admissions policies of any sort? What are the parameters of that? Can schools use race as a factor among many, which is essentially the current law of the land, to encourage diversity in a class? If these policies are struck down, if these state laws are struck down, schools will no longer be able to do that. And I think for many, there's great concerns over the impact that we'll have on historically disadvantaged members of our society. But that's the case. That's the matter that's before the court. So I think that one's obviously a very important one for us to watch. It hasn't been decided yet, but I think we'll see it shortly. And then the third category of cases that I want to touch on are First Amendment cases, which that's the area of law that I spend the most time with generally. Again, I'm a little bit biased, but there is an incredibly important First Amendment case before the court right now, called a Lenis versus the state of Colorado. And that case deals with Colorado's, what's called their Public Accommodations Act, which sounds legal like legalese, but it basically, every state in the country has a public accommodations law. Public accommodations law says that if you are a public accommodation, right, you're offering services to the public, that you can't do certain things among them, discriminate. In fact, it was many, in many states, it was public accommodations laws that desegregated hotels and restaurants south of the Mason Dixon line where there were obviously segregated public accommodations. And it was these public accommodations laws that came in and stopped that. Many states have added to those public accommodations laws to include a prohibition against discrimination, discriminating against people based on gender and sexual orientation. Colorado being one of them. So Colorado is a broad public accommodations law that says, if you are a public accommodation, you can't discriminate in who you serve based on race, gender, ethnicity, sexual orientation. And there is a company owned by this person named a Lenis out in Colorado who makes wedding websites. And she decided she didn't want to based on her religion. She asserted that she didn't want to make wedding websites for same sex couples. And the state of Colorado didn't ultimately enforce the law against her but essentially threatened to enforce the public accommodations law against her. She brought what's called a preemptive challenge to the law under the first amendment, claiming that if she was forced to produce wedding websites for same sex couples it would essentially be compelled speech that the state would be compelling her to say something she doesn't want to say. And the way the law works in Colorado and in many states, there's sort of two pieces. There's a what we call an accommodations clause in the law, which says that public accommodations have to accommodate people. They have to serve them regardless of their, you know, race, gender, ethnicity, sexual orientation. And then there's a communications clause in the law and many states do this as well as Colorado. That says that you're not allowed to make someone who based on race, gender, ethnicity, sexual orientation feel unwelcome. And in addition to not creating these websites, this, this person of Lenis wants to post on her business website that she, you know, doesn't do this for religious reasons, etc, etc. So she filed suit and federal court out in Colorado and lost there lost in the circuit court of appeals. So she filed the U.S. Supreme Court on the issue of whether or not the law violates her First Amendment right. And it will be, of course, interesting and impactful to see what the court does here. Because so many states all states have these public accommodations law so if the court were to carve out some sort of exception. So that would have impacts on public accommodations laws across the country, perhaps Vermont included. And so I think, again, depending on one's perspective, there certainly are real concerns about the court going in that direction. And I think on the ground that it's a slippery slope right if you start letting people discriminate based on while my religion says this under the First Amendment, or under the compelled speech doctrine, where does that stop right. And I think that's a valid concern that that supporters of this law have. It's an important case to be on lookout for that case has been argued. And I think we expect a decision in short order. I think if I was to guess what the Supreme Court's going to do here. I have a hard time believing that the Supreme Court's going to put its stamp on approval on a First Amendment doctrine that essentially allows people to discriminate. Based on sexual orientation I don't think the Supreme Court's going to say that's okay, because of that slippery slope does does how could the court do that without sort of going back to the days of discrimination based on race and segregation in public accommodations hotels lunch counters, all of those things that the civil rights movement fought to end and did under the law. I don't think the court's going to, going to open that door back up. But I think there's a chance that they will say the communications clause piece of the Colorado laws unconstitutional, because it is banning this particular possibility to speak with respect to what her views are on this topic, which I think of course the First Amendment does protect right, whether we agree with it or disagree with it. One is able to pronounce their views on on topics impacting our society. There's a chance they'll say that part of the law that prohibits that is unconstitutional, but I think it's pretty unlikely or I would personally hope it's unlikely that the Supreme Court says, and not only that but they can also discriminate right this person no longer has to serve people based on their, their sexual orientation, but it's obviously a matter of great import to many people, and I'm sure there's people out there that have varying views on the topic. But it's an important First Amendment case that will set an important First Amendment precedent that will impact the entire country. The other First Amendment issue that I that is not yet before the court, but I think is headed in that direction is the case that perhaps many of you have heard about. It's, it's, it's a very important First Amendment case. And it's the litigation that's ongoing between Dominion voting machines the company that makes the voting machines and Fox News. The argument that's being made by Dominion, and this stems back to the 2020 elections of course and the controversy surrounding that. The Dominion voting machine company sued Fox News on the ground that Fox News had defamed them by saying that their Dominion voting machines were, you know, providing fraudulent vote counts or I think there were there's allegations that they were actually controlled by like Waila or something like that. Dominion sued Fox News for defamation. They had been defamed. Why is this, why is this a First Amendment issue you might say well, the test for defamation is fourfold you have to have a false statement, right, a fact can't be an opinion. It has to be sued for defamation for speaking your opinion. Right, and that's a First Amendment overlay it's because of the First Amendment so you have to have a false statement of fact has to be publication to a third party. And you have to have fault. Right. The person defaming another has to have some level of culpability. So for like run of the mill defamation that culpability is essentially negligence right. But you should have known that this was a false statement that you're making but you made it anyway right. Right, you don't have to have, you know, intent or knowledge, but for First Amendment purposes what the courts have done is said, when it comes to matters of public concern. It's harder to bring a defamation claim. When it comes to matters of public concern when it comes to public officials or public figures, the court requires that somebody bringing a defamation claim bruise actual malice. Right. In other words that the speaker acted with knowledge of the falsity and did it anyway. The logic behind that why the First Amendment comes into play there is because of course when it comes to matters of public concern public officials public figures, we want people to be able to speak freely. Right and say, you know, I'm against this politician this politicians a horrible, you know, lion sheet and, you know, thief. Right. Right, we want people to not be scared to critique politicians and public figures so we say that for a politician to turn around and sue me for saying that they have to show that I knew what I was saying was false, and that I did it anyway, and that's the actual malice standard and it comes from a case, a famous case called New York Times, the Sullivan, and it dealt with publication that the New York Times had made. So, the reason this is an important case is and I think we'll ultimately end up at the US Supreme Court is because it gets at that question of how high is the burden to show actual malice and there's members of the court right now, who I think are interested in really visiting the New York Times be Sullivan standard, which is really a standard that protects freedom of the press. And insulates the press from being sued, essentially for making a mistake in a story, or, you know, from criticizing a politician or policy. It's going to have significant impacts, perhaps on that doctrine. And, and I don't know folks saw this but a couple days ago there was a filing a couple of filings in the, in the, in the matter that got unsealed. And it looks like Dominion's basic argument is that Fox News commentators knew that the Dominion stories were false that these that Dominion was not really controlled by Venezuela and that the voting machines weren't making, you know intentional mistakes for Joe Biden, so to speak and yet still covered that story represented that story spoke about that story made commentary on that story. Fox News on the other hand argues that, you know, there's this freedom of the press principle at stake, and that they should be free under the First Amendment to cover the controversy and cover the fact that the president and some of his lawyers were talking about, you know, the, the election being stolen and that that's, you know, public, that's a public issue certainly public figures, public officials, and that they should be able to cover that. So it really gets sort of to the crux of this question how far does the First Amendment go. It comes to something that seems maybe as mundane as as defamation, but will have real impacts I think no matter which way the court comes out on this on freedom of the press on the ability of the media to cover stories for for better works. So I think that's another important case that I'm following it's not at the Supreme Court yet, but I think given the makeup of the Supreme Court, there's at least a possibility that will see the court revisit that New York Times V Sullivan actual malice standard, and perhaps lessen it in some way. So that defamation claims could be brought by those who feel they've been defamed by a story in the media. So I think that's another really important case to watch, as it sort of percolates up. I have no doubt that at some point it might not be this case, but some case will make its way to the Supreme Court on this on this question in the coming, you know, year, couple of years, because I think there's an appetite to revisit it. So I think that's another really, really important case to watch out for down the line. But I know maybe I've made everybody, you know, scared about the future of the court the future of the law. There'll be decisions in these three areas that I just highlighted that I'll disagree with that probably many of you will disagree with. I think it is important to remember that principle about the rule of law to take faith in that to trust in that. And if we disagree with the court's decision to my mind the solution isn't to sort of blow up the corner. Not figuratively but but it is it is to instead organize. Remember that elections matter get out vote. Organize it at the state local even federal level to try to make the change that you want to see in the world. And I got to say I was heartened, not to bring this all the way back to Burlington but I want to sort of wrap up. And get get to questions I was heartened this morning. My son goes to school in the new North end. And apparently there's talk of eliminating a component in the school the steam program. And maybe people think that's a good idea maybe people think it's a bad idea but he decided in fourth grade that he was going to make a petition and try to get everybody in the school to sign it because he really loves steam. And it made me reflect on that the importance of that engagement and gave me faith that the next generation of folks coming down the line are going to be doing that, and are engaged and haven't sort of given up and said, everything's so divisive, the rule of law doesn't be more that they really are trying to be out there, making change even if it's in their little communities but but change only matters if we all agree with the sort of lay of the land the laws of the land and the rule of law and the Supreme Court are such a big part of that. And, and I think history, thus far, has sort of borne out the idea that even in those difficult times and sort of moments of darkness. The rule of law has survived and in fact moved us forward, even if holding even if two steps forward one step back so I have no doubt that that will continue, even if maybe I'm not happy with the way some of these decisions come out. I think will be okay in the long run as long as we all accept that basic principle. So it's 245 and and I've talked probably too much. I'm happy to turn it over to the questions I think I see there's some in the question and answer box but I guess, I guess Kathy you were going to read those to me yeah. Yeah we have nine questions so I'm not going to get to all of them. So the first question is basically about requiring a separate branch of government. In this case the Supreme Court can they adopt ethics guidelines that will include conflict of interest rules. Yeah, absolutely. They could do that. And quite frankly they probably should. Here's the rub though as to why I think it's it's unlikely that those are going to be I mean they're just not going to be enforceable in any real meaningful sense. And that's that's because every justice that's on that court that has been nominated and affirmed appointed and confirmed by the Senate pointed by the president confirmed by the Senate has lifetime service. In other words unless they are impeached they can't be removed. So, so let's say that how does that impact an ethics policy that the court might adopt. Let's say that the court decides to adopt an ethics policy that says, you know, the spouses of Supreme Court justices can't be involved in, you know, political fundraising or something like that. There would be no way for the court to enforce that against any of the justices because they could not legally punish them. There would be no mechanism, you couldn't fire them, you couldn't demote them, you couldn't reduce their pay. So, in some ways that they could pass ethics rules within the within the within the court could do it themselves Congress could try to pass ethics rules, but I just don't see how they would be enforceable. And I get it, right. So one might say well maybe we need to change the way that the Constitution is written maybe maybe we should have a constitutional amendment that would it would provide for that and that there's that's a perfectly valid response. The problem in my mind with messing around too too much with the way that the court set up is that it's, it's going to open up a Pandora's box of politics on the court that we might not be able to shut. And, and the problem with that in the long run, right, maybe we solve some problems in the short term but in the long run, at least in my mind, a politicized court is an ineffective court it's a court that we, we listen to if we agree and we ignore if we don't. And I think that's a dangerous dangerous precedent so I'm certainly in favor of ethics rules that the court could create and adopt. But in the end, at least for the justices as I see it they're going to be entirely voluntary and I don't know that it would really necessarily move the ball, all that much. And I know we're short on time but there's one other point I would make I think this is part of the reason that the investigation into the dobs leak fail. And I think there's some things that I've seen come out in terms of how vigorously the justices themselves were questioned. I think part of the reason for that is because there's almost no ability to force a justice to participate in that investigation if they don't want to, because they can't be removed. They can't be punished, even by the chief justice. So what's their incentive to participate in investigation, particularly if they had some level of culpability in the leak. They just say I don't want to talk. And there's no way to force them to do that as far as I can tell. And so I think it's part of the reason the investigation failed is because I think there's very, very much it's very possible that some of the justices just didn't engage. Here's a personal question. How did you first get interested in Cuba and and does their just judicial system fundamentally differ from ours. Well, Cuba is really a fascinating place. And we take a group of Vermont law school students down there every year. It's so obviously so different it's politics are entirely different. It's, it's system of economics is entirely totally different and quite frankly, their constitutional space is entirely different. There is no First Amendment protection in Cuba in terms of the ability to speak and criticize in the way that we think about it here. They have other rights. And what's so interesting to me about going down there is the conversations we have. You know, we certainly are and should be proud of our First Amendment rights. And those are things that are very different down there. They, they, in my view, are and should be proud of their right to health care, for example. And so we have these really fascinating conversations that are friendly, but vigorous debates about these topics. And I find the students get a lot out of that. And I'm a big believer in this in the idea of the way we move forward as we go, and we learn from different places that do things differently. I couldn't survive in Cuba as a First Amendment lawyer. I believe to firmly in that, but there's other things I could learn based on the way that they do things and I think traveling and coming to places like that with a certain level of humility provides for great learning for me. So that's how I got involved and that's why I still find it interesting to do. Who people have asked, do you think that the Supreme Court justice that should have term limits. Term limits, I think makes makes some sense. I don't know that I would do it in terms of a term, but that might be the most politically palatable. But that would certainly avoid some of the politics, I suppose, of this and would allow the court to be perhaps more reflective of the society. I got to admit I'm hesitant to go down the path of amending the way that the Constitution sets up the Supreme Court, even if there might be some validity to those changes. I think there's also downside risks to further politicizing the court, because it has no way to enforce its decrees other than our good faith acceptance of them whether we agree with them or not. But that's certainly a valid possibility here. Is there no other way for Congress to grant the EPA jurisdiction over water quality in isolated US orders other than the Commerce Clause. Yeah, that's a great question. So, I mean, the short answer is no. Right. Congress, our Constitution sets up one of what we call limited powers and so unless it's given to Congress explicitly they're not supposed to have it. Obviously Congress has very wide ranging powers and probably the founders would find that to be very different than what they had envisioned today, but the basis of those powers in many instances is the Commerce Clause. And so that's why there's this question of, well, how connected does it have to be and there's been high watermarks of the US Supreme Court and low watermarks of the Commerce Clause over the years. But certainly Congress could amend the Clean Water Act it would seem. And I think a cogent argument could be made that Congress's power does in fact extend to, to all wetlands because water, no, no water is in complete isolation from the navigable waters of the United States right groundwater is connected. The water cycle is connected so it's somewhat of a, it's like it's a, it's a scientific and legal fiction to say that these wetlands are not connected to that lake, even though it's, you know, 300 feet away. So I do think Congress could amend the law to address that if the court were to go in a direction Congress didn't want it to question them. In three or four years, there appears to be an effort among the justices to invite cases that the conservative majority want to hear and perhaps rule upon. Have there been previous periods in our history when there were similar subtle invitations. I mean I think yes. I mean I keep coming back to like this is why elections matter it's this is why, you know, it's always frustrating that whatever 56% of the population votes. And that's of course, maybe an easy way out but but I think it's true. Here's how the, we don't know exactly why the court takes cases that it takes. That's because it is a non it's not a transparent government body. Again, the theory being that in order for the court not to be swayed by the politics of the day. It's got to be able to debate and discuss, you know, free from the prying eyes of the public now maybe there's ways to do it better than it is, but I think that's not necessarily a bad instinct. The point is we don't know how and why the court takes cases that it takes. Here's what we do know. In order to get a case before the court on on, you know, merits case, there has to be at least four justices that want to hear it. So if the court has moved in a more quote unquote conservative direction in recent years which I think it has. There's going to be more of those justices on the court and they're going to therefore be more likely to grant cert to cases, they're going to have the ability to grant cert to cases that maybe couldn't have been. So I think the court has moved over the years of course based on who's on on the court I mean it's, it's just as much a legal fiction in my mind to say that the court is insulated from politics, that's impossible. Right. I mean that there's no, there's no system that we could come up with to entirely eliminate that. And of course, members of the court come to the court with their own worldviews. And there's no way to eliminate that either I guess unless we turn it over to artificial intelligence and or something like that, which of course would have its own risks. So I think yes the court does seem to be taking on these cases that, you know, perhaps allow it to make decisions that we could, we could, you know, broadly frame is going in a conservative direction. I don't think that's new to the court. Expanding the court to 19 would make it more representative, but no president would select enough members to change its nature. What is the downsize. Expanding it to 19. That's what it says. Yeah. Okay. Well I don't I mean I think you would need if you were going to put a limit on how many members of the court there could be you'd need a constitutional amendment. I mean I think the scholars debate this but on balance I think most most folks agree that have studied this that the court could be expanded, even without a constitutional amendment there was nothing there would be nothing to prevent a president from dominating 30 justices on paper anyway. Again I think the problem with that is do we then I just don't see how we don't end up in a situation where, as each party gets the executive or the Senate, we're basically just shifting the court to meet our political agenda. And in the short term that might allow, you know, my side or your side or whoever side to get a win or two. But in the long term I think that's just not a tenable system. And so, you know it's not something I personally even favor of. To the bear requirement that the Senate conduct up down voted on judicial nominations. Could the, could the Senate do an up down vote. I don't see why they couldn't. But you have to meet the constitutional per parameters of of the process and look the Senate has it's, it's, it's filibuster rules now and I think the precedent's been set, you know they've removed and removed and removed the, the, the, the sort of checks on that over and so I think that's resulted in a much more politicized process for, for Supreme Court justices to get on the bench and I think that's why we saw what we saw with Merrick Garland, and, and you know to a certain extent some of the others as well it has been recently nominated. You know, it's certainly the Senate's prerogative to carry it out its constitutional duties, you know as long as it conforms to them as it sees fit, but the more politicized the court gets overtly. I think the greater the risk to the rule of law. After dubs how important is precedence. A lot of people are wondering that. You know, right, rightfully so. I think it's got for our system to function precedent has to be critical to the court's decisions. We have a common law system of government, which is based on the idea that the law can progress slowly over time, but it has to happen incrementally and only in those most extreme situations should the court reverse itself. And in the reversing itself itself. There is no rule of law right we don't know what the law is from day to day and so I think there are real risks to that and I do certainly hope, regardless of the issue that the court returns to that. That view in a more vigorous way shall we say, and that might mean that sometimes the court's going to uphold cases that I disagree with. But again, it's that sort of law of the law rule of the road. And I think the law of the land. It's, it's, I think an important principle. This has been great. Thank you so so much, Jared. What a great first lecture for our session. So see you all next week hopefully at the church or on zoom have a good week everyone. Thank you. Thank you, Jared. Bye bye.