November 26, 2024 • 49 mins
At this Freedom of Thought Project event, panelists will discuss the current political landscape in the U.S. and how rhetoric from political leaders impacts our judiciary, society, and our freedoms.
Featuring:
T. Elliot Gaiser, Solicitor General, Ohio
Eric Wessan, Solicitor General, Iowa
Moderator: Megan McArdle, Columnist, Washington Post
Featuring:
T. Elliot Gaiser, Solicitor General, Ohio
Eric Wessan, Solicitor General, Iowa
Moderator: Megan McArdle, Columnist, Washington Post
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Marshmallows maybe making some'mores. So we have a very special
panel here. We have the solicitors general of Iowa and
Ohio and their buyers are on the website.
Speaker 2 (00:13):
You can look at them there.
Speaker 1 (00:16):
And I'm just going to dive straight in by opening
with the question that I closed with, which is are
we doing too much? Are we putting too much onto
the courts? Are we pressuring them to solve issues that
the legislature should be solving, and specifically, are we putting
too much onto the federal courts?
Speaker 2 (00:35):
And Eric, I'm gonna ask you to go first.
Speaker 3 (00:37):
Sure, I think it's not necessarily that we're asking the
courts to do too much, although I guess the question
is who we is? But when it comes to the states,
a lot of what we're doing is asking them to
reallocate who's doing what, away from agencies that have not
been empowered by Congress to do what they're doing, to
(00:59):
Congress itself to either authorize the agencies or to do
it themselves. And I think in that limited role, you know,
there are tools in place that Congress has enacted that
give the states the ability to make those challenges. I
think that's normally pretty good. I do think that when
it comes to broadly enacting social policies, there's a tendency
(01:20):
to conflate, especially but not uniquely among non lawyers, like
what is the best policy with what a court is
actually able to do?
Speaker 2 (01:29):
And so, can you give me an example of that?
Speaker 3 (01:33):
Sure, I think there was just a decision that came
out of the fith Circuit, which is Texas, Mississippi, and Louisiana,
relating to Texas's foster care agencies. And it's not area
in which I'm expert, but I was reading the opinion
and it sounded like the district court was really seeing
(01:53):
itself as the superintendent of foster care policy for the
state of Texas. And no matter how qualified or intelligent
that judges, that's just now what the role of the judges.
And so fifteen years after that judge took on that role,
the Fifth Circuit vacated or reversed and reassigned to a
different judge to basically say, at some point, this has
(02:15):
to have a resolution. There's not just an open ended
mandate to effectuate the policies that you think are right,
even whether or not they're right. It's just not something
that is the proper role of the courts. And I
think when you're appointed to life tenure, there might be
a tendency to think that I can do not very
much wrong, and that sometimes can lead judges away from
(02:39):
a human away from the humility that helps making being
a judge the best thing that they could be.
Speaker 4 (02:47):
No, we are not asking courts to do too much.
Speaker 5 (02:50):
The state of Ohio, the State of Ohio is asking
courts to respect and to in many ways serve as
the physics for an out of joint separation of powers
in this country. When I go to court asking for relief,
it is because, over a long period of disrepair and
(03:14):
decline and desuetude, we have allowed our country to abandon
many of its fundamental tenets. When we think about what
it is that we want from our courts and why
judicial independence is so important, why the separation of powers
is so important, it makes me actually think of a
Bible verse. And before you are too worried, it's from
(03:36):
the part that we both agree on. My Jewish friend here,
Levitica is nineteen fifteen says, do not pervert justice by
showing partiality to the poor or favoritism to the great. Instead,
do justice to your neighbors. Why do you have an
independent judiciary? It's because of the insight that crowds don't always,
(03:57):
through the democratic process, do a good job of a
judging right and wrong and what is just or not?
Speaker 4 (04:04):
And so I think when.
Speaker 5 (04:05):
The states are going to court today, what we're mostly
asking them to do is to fulfill their role, their
discharge and to put back into place, you know, the
disjointed separation of powers that we see at the federal level.
Speaker 1 (04:22):
Are there places where you feel like things are better
where let me say this in a different way, where
are things better handled in state court? And where are
they better handled in federal court? What are how do
you think about separating those those issues? Which doesn't have
to be the way the courts currently do, but where.
Speaker 2 (04:39):
You know, when you because you guys think.
Speaker 1 (04:41):
About that all the time, I would imagine, is what
the right venue for various questions are? So how do
you think about that problem and how should we be
separating that?
Speaker 5 (04:51):
Yeah, I think when you to my colleagues, excellent insight
that social policy belongs in the legislative branch. Actually, that's
where the wisdom of crowds is very helpful. When you're
prescribing rules that will apply prospectively about how we live together.
That's what the police powers are for. That's why you
have in Ohio Iowa top two Midwestern.
Speaker 4 (05:14):
States, especially with three vows. Right.
Speaker 5 (05:18):
Yes, So we look at that and we say the
General Assembly is actually quite good at that role.
Speaker 4 (05:23):
It's well equipped.
Speaker 5 (05:24):
Those people in our state legislature, they live with their communities.
Speaker 4 (05:28):
It's a job with a salary.
Speaker 5 (05:30):
It's technically full time, but it's not really enough to
support a family, especially if you live like three hours
away from Klembus. So most of these people live and
work and abide by the rules that they create. That's excellent.
What courts are not good at is setting those kinds.
Speaker 4 (05:44):
Of prospective rules.
Speaker 5 (05:45):
What they're good at doing is looking backwards in a
judging between cases and controversies parties that have a concrete
dispute about how that law cashes out in a given case.
And because it is indeed case by case, the evidentiary
deep dive that a trial system is in fact the
best devised system of which I am aware to suss
(06:06):
out the truth.
Speaker 4 (06:07):
For limited, epistemically.
Speaker 5 (06:10):
Confined human beings like us, the trial system is the
best system for that. So, yeah, courts shouldn't be making
social policy because courts are essentially backward looking institutions. Legislatures
should be making social policy because they're the ones who
can peer out into the future and actually see what
it will look like if that rule versus a different
rule becomes the law.
Speaker 2 (06:32):
And change it.
Speaker 1 (06:33):
Right, I mean, a court also seems to me, again
from a layman's perspective, a very ponderous way to solve
a social problem.
Speaker 2 (06:40):
On the one hand, yes, you can have one judge.
Speaker 1 (06:42):
Making decisions, but on the other hand, it's actually once
a decision has been made by a higher court, it's
then quite a procedure to change it. And you know,
legislation is not easy, but maybe easier than working your
way up through seven layers of appeal. So I was
last night because I'm an incrediblely glamorous person with an
incredibly glamorous job. There I was sitting in my chair
(07:04):
at ten pm and as one does, reading the amigas
briefs in US v.
Speaker 2 (07:10):
Scrim Many, and is this strikes me as some of
what you are saying right, It is the.
Speaker 1 (07:21):
It is the plaintiffs asking a court to decide a
contentious social issue rather than the legislator legislature.
Speaker 3 (07:31):
I think it's often or it's even worse than that
in this case, because we're dealing with very unsettled experimental science.
This case, for those of you that aren't familiar, is
about about twenty five states. Half the states have passed
laws that prohibit permanent sex change treatments for children, and
(07:54):
activists across the country and in some cases, joined by
the Biden Harris Departmen of Justice have sued those states
seeking to have those laws. Enforcement of those laws and
joined is unconstitutional. So to put in perspective some of
the specific things that these laws address, you know, cross
sex hormones, permanent drugs that would lead to inability to
(08:19):
have sex for adults, and then of course there's surgeries
for minors. And there are a few different One of
these cases, the one in question here came out of
Tennessee and in the sixth Circuit, where Ohio is. I'm
in the eighth Circuit. Not quite as glamorous, but better
corn and so very good pie. I find excellent pie.
(08:41):
We have a wonderful Mennonite population and the farmer's market
every week, and let me just also say if you're
interested in working in Iowa, we are always hiring, so please,
like always, feel free to reach out. But going back
to Scremeti, which is the name of Tennessee's attorney general,
they were soon they went all the way up to
the Supreme Court, and basically their argument is that one
(09:05):
their law does not need to face heightened scrutiny because
they're not discriminating on any protected class basis. If you're
a boy or a girl, you're not able to access
this permanent life altering treatment under Tennessee law, treatments that
have not yet gone through all of the full experimentation
(09:27):
and process they should, and that this law is rational,
has a rational basis, and nothing in the Tennessee law
at issue here says that a consenting adult can or
can't do anything. I know, there's a lot of controversy
in the media now. I believe Vice President Harris when
she was running last time, wanted to let detained illegal
aliens in prison get sex change treatments and in an
(09:50):
ac Yeah, there's a lot of very contentious side issues.
But here the question is the science is not set
no matter what the activists say, and the state is saying,
hold up until we understand that this is actually safe
and beneficial for kids. We don't think this is right,
and people soon are asking the courts to make a
(10:13):
final decision, and it's not clear to me at all
why they think that one the courts will agree with them,
and so far, almost uniformly, they haven't. And I think
that's an excellent example of across the board judges with
very different demeanors and approaches to the law. I have
come to the same result, which is that a state
can ban an experimental treatment for children that might have
(10:34):
permanent life impacts. And I'm hoping that the Supreme Court
is going to also leave that question to the states
to decide.
Speaker 1 (10:42):
So, I mean, here is where I see a little
bit of tension, although I think this tension may be
entirely self interested, but bear with me. So, I mean,
I take your point that trials are actually a really
good place to get information. And for me, the reason
I'm reading these AMACUS proofs is that this court, this
trial has been fantastic for journalists who write about this issue, of.
Speaker 2 (11:03):
Whom I am one, because getting.
Speaker 1 (11:06):
Information out of these organizations has been extremely difficult, and Alabama,
especially has just gone postal on some of these groups
and is putting out a lot of briefs, and that's
I think good for the public discourse. And yet at
the same time, I sort of don't want this case
to exist because I agree with you that this is
(11:28):
a question for the states to legislate.
Speaker 2 (11:30):
And that we shouldn't. The suits should never have been brought.
Speaker 1 (11:33):
It should have been shot down earlier because these are
just the sorts of questions that should be handled by
the legislature.
Speaker 2 (11:41):
Is that even attention or am I making.
Speaker 3 (11:43):
At the risk of jumping in, I just also really
want to highlight when we're talking about the importance of
an independent judiciary, that the Alabama case in particular is
an egregious example, based again on just the allegations and
what the court has said of these activist groups trying
to effectively gerrymandered their way out of the judge they got.
Speaker 2 (12:04):
Can you elaborate on that just a little bit.
Speaker 3 (12:06):
So they filed their lawsuit, they got assigned a judge
that they thought would not be sympathetic because he was
appointed by President Trump, and basically tried to file another
complaint and get in front of a different judge and
basically avoid the judge that they had been assigned all
to avoid this one specific judge in a way that
(12:26):
at least according to the show cause order. I believe
some people have said maybe unethical, and I think certainly
reflects poor judgment. But in that case, they did not
get out from that judge's purview. And then the judge
granted them relief. He was reversed on appeal, But they
worked so hard to avoid what they were sure was
(12:49):
going to be an unfair judge who then gave them
a hearing, agreed with them, gave them the relief they saw,
and then in the end, like every other court, to
look at the issue, they lost. And now a lot
of this discovery, this explosive discovery, is coming out of
that litigation because you know, they're stuck in court and
they filed, they sued, and now they have to deal
(13:10):
with the consequences.
Speaker 5 (13:11):
But yeah, well that story has been paralleled in state
court in Ohio, actually because Tennessee was a little ahead
of Ohio and adopting the law that protected children in
this way from permanent life altering surgeries. Cross sex hormones
puberty blockers, the effects of which are deeply uncertain, the
benefits of which are certainly unclear, and the risks and
(13:33):
downsides are something that can be evidence based. They sued
in state court, and of course they forum shopped the
ACLU in this instance, representing a pair of plaintiffs to
find a blue county where judges are elected by a
very sympathetic electorate.
Speaker 4 (13:52):
And again they.
Speaker 5 (13:54):
Prevailed at the preliminary injunction stage. The law was set
on ice statewide over our objection. My Attorney General said,
we're going to court about this. We're going to do
fact based discovery. We held a five day trial on
the merits, We had expert testimony, We brought in some
of the same evidence that Alabama saw, and this judge
in a blue county at the end of that trial
(14:15):
reversed himself let the law go into effect. And now
that law is in effect protecting children in the state
of Ohio while it's on appeal in the state court system.
And so what's particularly galling me about the US versus
s cremetic cases.
Speaker 4 (14:28):
I actually think that there are some poor motives.
Speaker 5 (14:31):
At least there's enough evidence to give rise to a
suspicion of the motives here. If you're the President of
the United States, you can go to Congress and say,
you know what, I think there should be a one
size fits all legislative rule with respect to transgender issues
and setting aside all the potential other federalism, separation of
(14:53):
powers First Amendment issues that might be involved in that.
There is a channel in the Constitution for nation wide solutions,
one that is accountable to the people and in which
the states have, through their senators and representatives.
Speaker 4 (15:08):
A way to have input. And they didn't do that.
They went to the court system.
Speaker 5 (15:13):
Why is it perhaps that they suspect that the court
system will say, hey, wait a minute, we don't want
to be involved in that issue, And maybe they suspect
that in certain quarters that will discredit those courts in
the eyes of the public. Perhaps this lawsuit isn't so
much about creating a nationwide rule, where I think their
prospects of success, god willing are very low at the
(15:35):
US Supreme Court. Perhaps it's more of a battering ram
against the independence of that judiciary to basically throw as
ancient siege engines, would you know, like diseased animals into
the courtyard of the people that you're attacking. Right, let's
put a hot button social issue on the Court's docket,
again and again and again until half the country thinks
(15:58):
that even if it just simply applies the law, the
headlines that will be written about it is law Supreme
Court is against transgender youth. That's going to be the
headline no matter how the Court rules, if it rules
in favor of democracy.
Speaker 1 (16:13):
So let me circle this back then to the larger
theme that we were discussing in our last panel. And
do you see other cases that where you think that
that is happening? I mean, the scremati in these issues
around transgender kids I think are the most toxic issue
to me looking at it from the media. But you
(16:35):
guys are looking at it as lawyers. You are seeing
both not just the cases that have political controversy, but
the cases that have big kind of lasting legal implications
for all sorts of things that percolate out.
Speaker 2 (16:50):
So where else do you see cases.
Speaker 1 (16:53):
Where do you I shouldn't say where else do you
see cases elsewhere where it feels.
Speaker 2 (16:58):
Like it's well poisoning?
Speaker 1 (17:00):
It is an attempt not so much to get a result,
but to undermine the legitimacy of the institution from which
you are seeking the result.
Speaker 4 (17:10):
Yeah, I think.
Speaker 5 (17:11):
I mean, one example that immediately comes to mind is
the fact that not only Alabama, but Virginia has been
sued over maintaining their voter rules. Just the basic task
of ensuring that people who have moved have up to
date information. People who are not citizens don't have to
(17:31):
have to worry about someone voting in their name. And
what could possibly be the reason for that, Well, either
you want non citizens to vote, you want non residents
who have moved out of state to vote.
Speaker 4 (17:43):
I don't think that's it.
Speaker 5 (17:45):
Maybe it's just to churn up some mud and to
put additional pressure on the judiciary. I mean, as an
officer who of a state government, I work for the
attorney general. I get to bring loss sometimes and be
the lawyer representing the state. I do think a little
bit about you know, what kind of pressure this is
(18:06):
going to place on our institutions. And I think one
of the things that has lacked in our political discourse
is the resource that institutions constitute.
Speaker 4 (18:17):
They are a public good.
Speaker 5 (18:19):
Maybe I'm too much of a Chicago person here right now,
law and economics, but these are I approve this is
an all your Chicago panel at this particular moment. So
look at that freedom of font, freedom of speech, and
cold winters. And I'll say this though, the resource that
our institutions that they are there are an inheritance for us,
(18:40):
and if you assail them, if you tear them down,
it's not so very easy to rebuild alternative institutions.
Speaker 4 (18:48):
Look at the right.
Speaker 5 (18:49):
I mean, people on the conservative side of the aisle
have been trying their best to build a parallel set
of institutions, as many institutions have been, in their judgment,
captured by an idiot logical viewpoint, and it's not an
easy thing to do.
Speaker 4 (19:04):
There are a few examples.
Speaker 5 (19:05):
Like the Federal of society, where I think it's very
effective to build an alternative ecosystem, but that is no
substitute for the Constitution's judicial power residing in a Supreme
court that isn't itself a political football that descends into
the law of negative partisanship every election cycle.
Speaker 3 (19:23):
And sort of also just thinking about how these lawsuits work,
it's not infrequent that someone sues the state. They often
choose the highest profile statewide officer to be named as
the defendant in the lawsuit. Before we actually get served
with the lawsuit. The fundraising email goes out, look at
this good thing we're doing, suing the evil Republicans in
(19:46):
the state. And then you know, we eventually, hopefully often
win the lawsuit, and then you know, the same people
sue us again and send that another fundraising email. And
I think that that's not by any means all of
these groups. But you know, I maybe this is my
interview Chicago coming out how much money can be donated
(20:07):
to groups that just keep suing And you know, maybe
they get a sugar high of a preliminary injunction and
then it gets vacated, and I guess then they get
more donations and they can do it again. And all
I can say is is I have a deep and
abiding affection for a lot of the activist groups in
our state. In the last year, we defended successfully our
(20:29):
heartbeat abortion law, our book, our law removing inappropriate books
from schools. All these wins wouldn't be possible without the
activist groups that sue us and tee it up for
appellate courts to create finding precedent going forward. Then they're
my best partners.
Speaker 4 (20:46):
I think we've all been there.
Speaker 1 (20:48):
It's midnight, you're a little you're a little hungry. You
just want to go get a preliminary injunction. Yeah, sit
down in front of it a Netflix for a little
while enough.
Speaker 3 (20:56):
I mean, if you wanted to midnight, you have to
call the court and tell them it's an emergency motion.
You got to file it before five pm.
Speaker 1 (21:03):
I mean, do you feel like, do you see things
getting worse or better on this front when you look
at your own states, your own.
Speaker 5 (21:13):
Practice, I would say the frenetic pace and the extreme
noise I root for the Ohio State University. If you've
ever been to the horseshop, it's a great experience. It's
very loud whenever you're sort of like right on the
goal line, the fever pitch noise of the crowd, that
(21:35):
sort of I feel like that's sort of the political
moment that a lot of people feel that they're living in,
where you're right on the goal line. From my perspective,
it's those who want to permanently erode constitutional norms on
the goal line of someone who says maybe we should
not permanently erode constitutional norms and fending them off after
(21:58):
failed attempt at a pass again and again.
Speaker 4 (22:02):
But we're close, right, and.
Speaker 5 (22:03):
That's why it feels like things are such high stakes
if you think you're about to win forever, if you
think that maybe you're about to lose forever, and you
can decide for yourself which side you think you might
be on. But most of America feels like they're on
one of those two sides at this particular moment.
Speaker 4 (22:26):
It's dark right.
Speaker 5 (22:28):
Turns out, though democratic political life together.
Speaker 4 (22:32):
Is not a football game. It's not one where it ends.
Speaker 5 (22:36):
You actually have to go and be friends and neighbors
with each other afterward.
Speaker 4 (22:41):
And so I think de.
Speaker 5 (22:43):
Escalation here is only possible if you start to re
enable the judiciary, the legislative branch, the executive branch at
the federal level, and then the division between state and
federal authority. Those are the shock absorbers for that frenetic
energy is part.
Speaker 2 (23:01):
Of this that everything is nationalized.
Speaker 1 (23:03):
Now, this is a problem for us in the media
where every nothing's a local story, everything is a national story.
And so I would assume that many of the groups
in your state are getting donations from people who did
not know those groups existed ten or fifteen years ago.
And also the cases then end up on social media
in a way that they would not have ten or
fifteen or twenty years ago. And is is there is
(23:27):
that a problem? Is it a benefit because it is
creating opportunities for you to win cases?
Speaker 3 (23:32):
I think from I guess a couple a couple of
points there. One is I find that often more more
often than not, when we're litigating and someone, even when
it gets pretty heated, the opposing council tends to be fine.
You know, there's not there's not the same acrimony there
as you know maybe in the media, maybe even with
(23:53):
comment from opposing council. But you know, when you're actually
in the courtroom or leading up to court, for the
most part, things work smoothly. And I am always interested
to see if some of the negative polarization mo that
you were describing bleeds over from the press and the
media that really turn up the temperature on some of
these cases into the courtroom. And I think for the
(24:15):
most part it doesn't. But you know, there's always a worry.
You know, there's a saying about a judge, and if
I were to hear this about a judge that I
liked and respect it, I probably wouldn't love it. But
sometimes the judges might care a lot about what people think.
And I think that this was expressed there was that
old phrase, the Greenhouse effect, not about climate change, but
(24:37):
about the old New York Times reporter Linda Greenhouse. And
the idea is is that some judges cared a lot
what she wrote in the New York Times. And I
think back to before I was born, but I've seen
the headline. I think it was an early Eighth Amendment
case with Justice Thomas, and she wrote a headline, you know,
the Supreme Court's new youngest and cruelest justice. And it
(25:00):
did not seem to shake him at all. And I
think that, you know, she probably picked on him, but
that wasn't the target of her pen because she didn't
think that that would affect what he would do. And
I think part of this is judges that want to be,
you know, in polite society. They want to be out
with their friends, especially in some of these cities that
(25:21):
may be trend a little more liberal. They don't want
the front page of you know, nationwide publications like the
Des Moines Register saying they're a pigot I mean. And
I think that that is a tool that the media,
who tends to often have a view on a given case,
knows that they can use their advantage to keep that
temperature turned up.
Speaker 1 (25:40):
And we're always completely objective. I don't know what you
were talking about, Yeah, just totally disinterested fighting for justice
and liberty across the land. What issues are people not
talking about at the state level that they should be
talking more about outside of your states.
Speaker 3 (26:04):
Well, it's tough because a lot of the issues that
we are dealing with end up being talked about a lot.
But I think that maybe one sort of hovering, overarching
issue is just like what are these agencies doing? And
like one example of that, And this has gotten a
lot of attention, although maybe not as much as it
(26:24):
should have. The Biden administration was working on a third
attempt at loan forgiveness after the Supreme Court twice told
them not to and FIRS succeed. Yeah, the first this
third attempt they had. In the second attempt, some money
went out the door before the preliminary injunctions saying this
is illegal, you can't do it happened, and the courts
(26:45):
did not order them to claw that money back. So
the lesson that the Biden Harris administration learned was we
need to plan a blitzkrieg, and we need to make
sure that this loan forgiveness goes into effect and that
money gets out the door before a court is able
to wake up and issue an injunction. And they were
trying to make sure that hundreds of billions of dollars
(27:07):
got out the door within seventy two hours, specifically to
avoid judicial review. I think that more and more creative
attempts to violate norms ignore Supreme Court precedents by the
current administration. It's something that now is just happening so frequently,
and there are so many errors in the rules that
they're rushing out to avoid potentially getting overturned. In the
(27:31):
second loan forgiveness, there was a whole section about how
this would only cost one hundred and fifty billion dollars
because of the successful case that they wanted the Supreme
Court in Nebraska against United States, which was their loss
in the first case. They had issued before they wrote
the rule for the second case, and they just didn't
update it. So like each time they have these errors
(27:53):
in these rules, they know they're there. These are hundreds
of billions of dollars. They're trying to get it out
in an election year and are kind of like, well,
that's not that interesting because you know, we can focus on,
you know, the guy we really don't like as much,
and no one wants to talk about the president at
all because he's not even running. So I think I
think that's a real problem is these agencies are really
(28:15):
getting aggressive kind of because maybe they don't think that
they're going to have that long to be aggressive. And
what we learned and the Trump administration is is once
a rule, even an illegal rule, goes into effect, it
takes a lot. It takes a legal process to undo
the illegal rule, which is also I think, you know,
really going to slow things up if the situation changes.
(28:39):
In trying to write the ship.
Speaker 5 (28:41):
Yeah, a couple a couple of things come to mind. So,
just on the topic of judicial independence more broadly, I
think you can categorize the types of threats to judicial
independence into three basic camps. There are political threats, there
are culturalat threats, and then there are the threats from within.
The political threats are the ones we've mostly been discussing tonight.
One ranch of government says, hey, we're going to put
(29:02):
pressure on the courts, We're going to go after them.
Speaker 4 (29:04):
The cultural threat.
Speaker 5 (29:05):
I think that comes from the culture of many institutions
that are behaving like battering rams against the reputations of
individual members of the courts, both at confirmation and then
relentlessly after confirmation. The third threat is when judges brush
back from the plate themselves doing something that they're ill
equipped to do, which is predict the political consequences in
(29:27):
fallout of ruling without fear or favor. And the reason
that you want an independent judiciary is that a judiciary
that is lifetime appointed you can't change their pay. They
have tenure protection with a strong check, but only for
impeachment for bad behavior. Is that that's the one place
where you're pretty much guaranteed you're not going to have
(29:48):
ordinary agency capture problems issues where the special interest groups
sort of take control of an agency and have them
turn the opposite of square corners squiggly, strange, round about corners.
Speaker 3 (30:01):
One last quick point on that The New York Times
is like an end of term roundup, and they list
the important cases, all sorts of issues. But just like
if you click on the arrow to expand, one of
the like three bullet points is a public relations survey
of what the public thinks of the decision and to
think that, you know, it's like seventy three to twenty seven.
(30:23):
Let me tell you there is no case at the
Supreme Court in which one hundred percent of people have
an opinion. There is almost no case in which most
people have an informed opinion, because these are you know,
like you want to tell me that sixty four percent
of the American public thinks that Jarkesi finding a right
to like, you know, go to trial instead of an
(30:44):
administrative log judge like good luck. But that's how it's presented.
Speaker 1 (30:47):
I guess I have been really impressed by the number
of people on Twitter who turned out to be experts
on shoven difference.
Speaker 2 (30:53):
I had no idea.
Speaker 3 (30:54):
Yeah, and the only expertise on Chevron I have is
when I go to the gas station, and in Iowa
it's cases the Great Breakfast Pizza.
Speaker 2 (31:05):
So I'm not going to.
Speaker 1 (31:06):
Make the same critical era I did before and not
leave time for Q and A. But let me ask
you the final question, which is what are the best
and worst things about being a solicitor general that no.
Speaker 2 (31:16):
One knows about?
Speaker 3 (31:18):
Well, let me just make this pitch. I see a
lot of young lawyers in the room. My fellow last
year who's now at Williams and Connolly, had two Iowas
Supreme Court arguments, and she would have had an Eighth
Circuit argument if she wasn't practice barred. We have so
many arguments on important, high profile cases. Unfortunately, we don't
have a lot of discovery, so you won't be able
(31:40):
to do a lot of document review, although maybe you
know in the case of Alabama it sounds like they
had that there. But there are so many opportunities to
go out to serve the people of the state. I
grew up in Connecticut. I'm an Iowan by choice. I
love living in a state where I can defend the people,
where I have a court system. You know, I'm fifty
(32:01):
to fifty at the Iowa Supreme Court. I don't win
every time, but it's a legitimate court. They apply the
law and sometimes they agree with me, and sometimes they
might get it wrong. But they're doing an amazing job.
And I mean some of this attacks on the legitimacy
of the court trickles down. We have one justice voted
(32:23):
to uphold a state law protecting fetal heartbeat in the
state of Iowa, and there is a concerted campaign to
get him non retained on the basis of a substance
of vote in a case. And the only reason they're
just targeting him is he's the only one up for
retention that voted what they would say is the wrong way.
I think that kind of attack on the judiciary trying
(32:46):
to undermine its legitimacy, which is what a lot of
the posts and articles about this are doing. They say,
he voted wrong on one case, so you need to
make sure he doesn't even have a job, that he
can't be a judge anymore.
Speaker 1 (32:57):
This is what does that do to your practice when
you are up in front of these Do you worry
about that?
Speaker 2 (33:02):
Do you worry about this?
Speaker 1 (33:05):
I think this is going to make cases go the
wrong way for you.
Speaker 3 (33:08):
You know, so far in Iowa, I don't think that
they have changed their votes on this basis, but it
is something that I worry about, and not just for
non like for state judges with retention elections. I worry
about federal judges who have lifetime tenure and no backbone.
And I remember, you know, we went to U Chicago
(33:29):
for law school. There are people with tenure there, and
you know, when bad stuff is happening on campus about
free speech or any of these things that they're passionate
about behind closed doors. They know I'm conservative, right, they'll say,
you're so, like get out there, like defend you know whatever.
The second it comes to defending any of this in public,
you know, turns out life tenure doesn't come with a
(33:51):
steel spine. And I see the same problem with the judiciary.
And I just hope that whoever's picking judges is picking
judges they care more about getting the law right than
they do about being popular. I think that is the
key insight into what it takes to be a good
judge of any kind, but especially federal judge. And you know,
(34:14):
to me, it's just mind boggling that you could have
life tenure and not have courage. I just you know,
I was worried when I was in law school and
I was doing some conservative stuff. I was worried they
were gonna like slimy and I wouldn't be able to
get a job at all. Right, And I still did it,
and I was, you know, not a life tenured federal judge.
Speaker 5 (34:32):
So yeah, last one, Well, it's a great job being
a solicitor general, the chief judge Sutton says it's still
his favorite job that he's had. He's said that publicly
and shared it to me several times. And you know,
as far as the fellowship goes, the Simon Karras Fellowship
in Ohio, I see my former fellow there. He argued
four times, including ones at the sixth Circuit, twice at
(34:53):
the Ohio Supreme Court, and once in an intermediate Court
of Appeals and so.
Speaker 6 (34:59):
Las.
Speaker 5 (35:00):
Yeah, getting up to stand up in court and be
able to say this is Elliott. Guys around behalf of
the state of Ohio where I was born and raised,
the state that raised me, made who I am, to
be able to give back to them in some meaningful
way by trying my best to provide this piece of
sovereignty in our constitutional fabric has the best representation that
(35:23):
it could have.
Speaker 4 (35:23):
It's the best job.
Speaker 5 (35:25):
And to Eric's point about needing rebar in your spine,
I think we should select for that when we're thinking
about who should run for state court judges, who should
be appointed to the federal judiciary. Are you able to
live up to the idea that you will not be
partial to the poor and you will not show favoritism
to the great. If you can do that, then I
(35:48):
think maybe the only thing better than being the top
advocate for a state in appellate court might be being
a judge who has that kind of fortitude planted their
feet in the ground the way that they should.
Speaker 4 (36:00):
Well, I think we have two candidates here on stage, so.
Speaker 2 (36:04):
I'm going to throw this open to the audience for
Q and A if we.
Speaker 7 (36:07):
Have HI, I just want to a show you to
ask a question. Based in the last two comments, you
positive that perhaps it's not a good idea for a
judges to be voted out of office based on their decisions. First,
Iowa had three justices vote out of office they when
(36:32):
they found writer gay marriage. And so I just wonder
is it really such a bad idea to have justices
so long as they do have that span of steel,
to have that check on them, either through retention elections
or through partisan elections. Now, my personal like my state
usually has retention elections, and on principle I always vote
know because I don't like communist election. There's only one candidate.
(36:55):
So even if I like the judge, but if you're
if you're actually taken their decision into accounts, is it
really such a bad idea to have the judges accountable.
Speaker 3 (37:05):
To the public. And if they have this.
Speaker 7 (37:08):
Pane of steel, they should be willing to lose their
job if they think they made a right decision.
Speaker 5 (37:12):
Well, I'll say this, I think a judicial philosophy is
a good basis on which to vote for or against
a candidate for judicial office.
Speaker 4 (37:21):
And states in the federal system are different.
Speaker 5 (37:24):
One of the reasons you need life tenure and you
need an independent judiciary of a certain kind at the
federal level is that that institution will mediate disputes between
the states and between the states and the federal government.
And so I think that you have a heightened concern there.
Now as far as state court elections go, I think
democracy is the worst form of judicial selection except for
(37:44):
all the other ones. And when you see in many
of my fellow states a system I think they call
it the Missouri plan.
Speaker 4 (37:51):
Does we have, Yeah, it does.
Speaker 5 (37:54):
The state of Missouri's name dirty to call that the
Missouri plan. But the idea that you have the basically
the local bar which is very politically one sided, constrain
the governor's appointment to just a few people that they
find to be palatable, and you know, it's like four
flavors of activist judge. That system is worse than having
what Ohio has now, which you know, this is the
(38:16):
second election that we've had where you have partisan id
attached as information for the voters among the different justices
who are running, I guess just super quick. I think
that a judge should rule the right way without fear
for losing his or her job.
Speaker 3 (38:32):
I think that is what their job is. I just am.
I think there's a difference when the attempt to non
retain a judge is based on reasons and rationales outside
of what the system itself contemplates. And so if we
had partisan elections, I would probably vote for the judge
(38:54):
to which I had that I thought was going to
apply the lot best. And if there was a judge
that I thought had a judicial philosophy that was inimical
to interpreting the Constitution and the state laws in a
way to their oath, I would vote against retaining that judge,
even if there were no ethical violations or anything like that.
And maybe that's ultimately what the people saying non retain
(39:17):
or trying to argue, but that's not what they're arguing.
And you know, I just try to take people where
they are, and where they are seems to be we
don't like this one correct decision, so we want to
non retain you. And I just don't find that very persuasive.
Speaker 2 (39:33):
We have another question for me, I.
Speaker 8 (39:35):
Think Jeene Meyer. I wondered on this CORRECTI case. I
heard somebody saying, I don't know the details that the
the argument. One of the arguments the other way was
well parent, you know this is parent. Parents are the
ones making decisions about what their children should do. And
I will admit I wonder about some of the people
(39:57):
who are making that argument whether they would apply that
in other situations. Nonetheless, it's a perfectly it's a perfect
clearer to argument.
Speaker 4 (40:04):
What do you what do you if you make that argument?
Speaker 8 (40:06):
Been made?
Speaker 4 (40:06):
What do you? What do you?
Speaker 8 (40:07):
What do you make of that?
Speaker 5 (40:09):
Yeah, so that argument is live in the Ohio State
Court case. And so what we've said in our filing
is what I said in argument in the Intermediate Court
of Appeals last month, was that parents do have rights
to direct in general, the upbringing, care, education, religious impulses
of their children. But that's not an absolute right and
(40:31):
it has to be defined, not at the perch of
the latter of abstraction, but with some measure of specificity.
And then the Glucksburg test applies, where you need to
look not only to whether or not you can contemplate
a system of ordered liberty without such a right to
a certain type of medical treatment, but also whether there's
(40:51):
a deeply rooted history and tradition of such a parental right.
And there is no deeply rooted history and tradition of
parents doing either sex change surgeries for minors or them
doing getting access to having a positive right to a
type of medical treatment that the state has generally proscribed.
(41:12):
And I think the positive negative liberty split is actually
quite important here. It's one thing to say I think
that it violates my rights of conscience for me or
my child to take this type of medical treatment that
is generally required of those who would attend a school,
for example. It's quite another thing to say, I have
an affirmative right to a doctor giving me this type
(41:32):
of treatment, even if the state has said it's not
generally safe or effective for children. And there is no
history or tradition of that ladder component, and so the
rights of parents over children are not absolute. And I
don't think anyone would argue for them to be. And
so the question is where do we draw that line,
And the line has to be looked at in terms
(41:53):
of ordered liberty deeply rooted in the history and tradition
of our common law, in our Anglo American legal tradition.
Speaker 2 (41:59):
Ask a follow.
Speaker 1 (42:00):
Up, we've had situations where states on both sides of this.
We've had California saying, if you can get your kid here,
will terminate your spouse's parental rights.
Speaker 2 (42:11):
I think that did not ultimately pass, but it was
being considered.
Speaker 1 (42:15):
And we've had Texas saying we're going to stick CPS
on you if you take your child out of state
in order to get treatments that we have.
Speaker 2 (42:24):
Deemed to be illegal.
Speaker 1 (42:26):
How should states handle those questions of I'm going to
spirit my kids somewhere else in order to either do
or not do the treatment that I think is best
for them.
Speaker 3 (42:37):
So I think, as with a lot of these cases,
you get these highly contrived scenarios that focus on one question,
but there is actually a rich history and tradition of
the type of rights and responsibilities that, for example, if
you have two parents that disagree about what to do
with a child relating to a healthcare decision, how to
(42:58):
handle that and run away to another state to get
medical treatment is not in that tradition, and so like
I understand that you know or you know. On the
other hand, I know that there's been some reporting about
what Texas is doing, but like, ultimately the question here
is not about kids getting permanent life altering treatment. There's
(43:22):
a long history of how the United States deals with
parental rights over their children, and that gives you the
answer the vast, vast majority of the time. And when
it comes to states passing, like California, laws that you know,
or I guess not passing in this case, laws that
seem very much out of the mainstream that sort of
(43:43):
try to take something out of that long history. Like
we've been a country for hundreds of years, but our
legal tradition goes back even further. And I think you'd
be hard pressed to find a point at any at
any point in time one where like one parent can
like effectively kidnap the child from the other parent to
undergo medical treatment. And so no matter that it happens
(44:04):
to be the trans issue, which is highly controversial, I
don't think that that creates an exception to just like,
let's treat this the way we've always treated this type
of dispute.
Speaker 2 (44:15):
We have another questional looks like over there.
Speaker 6 (44:18):
Tim Rosenberger, also Ohio. It seems like a lot of
the pressure and energy around state court races comes from
the reality in the last several years, they decide redistricting cases,
They decide which votes are going to be counted, They
decide how those votes are going to be counted. You
have these sort of bizarre thing pieces like whoever wins
this Wisconsin Supreme Court seat will determine who the next
(44:39):
president is. How do we sort of take that pressure
off of our state court. Should we encourage them to
be more like the US Supreme Court where they just say,
you know, fight it out. Whoever happens to be able
to stuff the ballots in will be fine. We're not
getting involved. Or is there some way to sort of
insulate them or muscle them up so there's less of
this national politicization on the state court races.
Speaker 5 (45:05):
I think it's tough to answer that question in a
truly comprehensive way, because at some level, when you have
a culture at odds with itself, which is what we
find ourselves experiencing in the United States, it becomes challenging
to say, well, there's going to be no place in
which that pressure comes to bear. I think state courts
(45:25):
are maybe second only to federal courts the worst place
to be the outlet for all of that. General assemblies
and legislatures seem to be much better positioned to do it.
And one thing that general assemblies and state legislators can
do is they can act to define some of the
jurisdiction of their state courts. You know, the Ohio Supreme
(45:47):
Court has original jurisdiction in mandamus over many election disputes.
In fact, Mark Elias sued over our dropboxes rule last week,
another in the long line of zero archlias you know,
long number.
Speaker 4 (46:03):
On my side of the column. Because the Ohio.
Speaker 5 (46:06):
Supreme Court has been given the authority to do that,
you need an answer, you need to answer quickly, and
it's usually a question of pure law, and in that
particular instance, they gave us precisely the answer. Now we
can run our election going forward and without having like
multiple lawsuits in multiple courts of common pleas filtering up
and disrupting the entirety.
Speaker 4 (46:24):
Of our system.
Speaker 5 (46:25):
I think that kind of model can be something that
the Brandeisian Laboratories for Experimentation in the States could maybe
give us some insight on.
Speaker 3 (46:35):
Yeah, to go back to the U Chicago thing, we
only had one F word, it was fair. And I
just think, especially with election law, so many people have
such strong views on like what is fair, and those
are often very removed from what is the law. And
some of the problems arise when people want something that
(46:56):
they say is needed or necessary that isn't the law
as written. And I think one place where courts maybe
find themselves in hot water is when these very sympathetic
plaintiffs and organizations are bringing these claims that ask to
violate the law and they go along with it. And
that doesn't happen super frequently. I think that became a
(47:17):
really acute issue during COVID for a lot of what
seemed like, you know, exigent circumstances at the time. But
you know, as with all things, you know, there's a
saying bad facts make bad law. Same with good plaintiffs, right,
you know, you might get a really sympathetic person and
you know, we're all Americans. We love voting. You know,
(47:39):
I came from Chicago before Iowa. You vote early and often, right,
you vote as many times as you can and.
Speaker 2 (47:46):
Get the dead relatives out.
Speaker 3 (47:48):
Yeah, make it a parting Yeah, and so like, I
understand the empathy there, but you know, maybe to put
myself on the other side from some extremely qualified, smart
people like I don't think empathy is the most important
thing in like applying laws. I think you know, being
able to you know, read the law as written is
(48:10):
which you know dovetails nicely into one of the Federal
Society's three tenants.
Speaker 7 (48:14):
Uh.
Speaker 3 (48:15):
And I just think that inelection law and that's one
area where some some folks have really gone a right, we.
Speaker 2 (48:20):
Are getting the hook.
Speaker 3 (48:21):
It looks like.
Speaker 1 (48:22):
Thank you so much for an amazing times.
Speaker 9 (48:29):
Yeah, thank you all for for staying late into the night.
Speaker 2 (48:33):
We are a little over.
Speaker 9 (48:34):
If you haven't already checked the QR code at the bar,
that will actually take you to one of the best
substacks on cocktail mixology. I encourage it.
Speaker 2 (48:46):
High that that too.
Speaker 9 (48:51):
And I do want to thank our fantastic moderator Megan
and our fireside chat, and thank you all for for
joining us for a really just a fantastic program where
adjoined
Marshmallows maybe making some'mores. So we have a very special
panel here. We have the solicitors general of Iowa and
Ohio and their buyers are on the website.
Speaker 2 (00:13):
You can look at them there.
Speaker 1 (00:16):
And I'm just going to dive straight in by opening
with the question that I closed with, which is are
we doing too much? Are we putting too much onto
the courts? Are we pressuring them to solve issues that
the legislature should be solving, and specifically, are we putting
too much onto the federal courts?
Speaker 2 (00:35):
And Eric, I'm gonna ask you to go first.
Speaker 3 (00:37):
Sure, I think it's not necessarily that we're asking the
courts to do too much, although I guess the question
is who we is? But when it comes to the states,
a lot of what we're doing is asking them to
reallocate who's doing what, away from agencies that have not
been empowered by Congress to do what they're doing, to
(00:59):
Congress itself to either authorize the agencies or to do
it themselves. And I think in that limited role, you know,
there are tools in place that Congress has enacted that
give the states the ability to make those challenges. I
think that's normally pretty good. I do think that when
it comes to broadly enacting social policies, there's a tendency
(01:20):
to conflate, especially but not uniquely among non lawyers, like
what is the best policy with what a court is
actually able to do?
Speaker 2 (01:29):
And so, can you give me an example of that?
Speaker 3 (01:33):
Sure, I think there was just a decision that came
out of the fith Circuit, which is Texas, Mississippi, and Louisiana,
relating to Texas's foster care agencies. And it's not area
in which I'm expert, but I was reading the opinion
and it sounded like the district court was really seeing
(01:53):
itself as the superintendent of foster care policy for the
state of Texas. And no matter how qualified or intelligent
that judges, that's just now what the role of the judges.
And so fifteen years after that judge took on that role,
the Fifth Circuit vacated or reversed and reassigned to a
different judge to basically say, at some point, this has
(02:15):
to have a resolution. There's not just an open ended
mandate to effectuate the policies that you think are right,
even whether or not they're right. It's just not something
that is the proper role of the courts. And I
think when you're appointed to life tenure, there might be
a tendency to think that I can do not very
much wrong, and that sometimes can lead judges away from
(02:39):
a human away from the humility that helps making being
a judge the best thing that they could be.
Speaker 4 (02:47):
No, we are not asking courts to do too much.
Speaker 5 (02:50):
The state of Ohio, the State of Ohio is asking
courts to respect and to in many ways serve as
the physics for an out of joint separation of powers
in this country. When I go to court asking for relief,
it is because, over a long period of disrepair and
(03:14):
decline and desuetude, we have allowed our country to abandon
many of its fundamental tenets. When we think about what
it is that we want from our courts and why
judicial independence is so important, why the separation of powers
is so important, it makes me actually think of a
Bible verse. And before you are too worried, it's from
(03:36):
the part that we both agree on. My Jewish friend here,
Levitica is nineteen fifteen says, do not pervert justice by
showing partiality to the poor or favoritism to the great. Instead,
do justice to your neighbors. Why do you have an
independent judiciary? It's because of the insight that crowds don't always,
(03:57):
through the democratic process, do a good job of a
judging right and wrong and what is just or not?
Speaker 4 (04:04):
And so I think when.
Speaker 5 (04:05):
The states are going to court today, what we're mostly
asking them to do is to fulfill their role, their
discharge and to put back into place, you know, the
disjointed separation of powers that we see at the federal level.
Speaker 1 (04:22):
Are there places where you feel like things are better
where let me say this in a different way, where
are things better handled in state court? And where are
they better handled in federal court? What are how do
you think about separating those those issues? Which doesn't have
to be the way the courts currently do, but where.
Speaker 2 (04:39):
You know, when you because you guys think.
Speaker 1 (04:41):
About that all the time, I would imagine, is what
the right venue for various questions are? So how do
you think about that problem and how should we be
separating that?
Speaker 5 (04:51):
Yeah, I think when you to my colleagues, excellent insight
that social policy belongs in the legislative branch. Actually, that's
where the wisdom of crowds is very helpful. When you're
prescribing rules that will apply prospectively about how we live together.
That's what the police powers are for. That's why you
have in Ohio Iowa top two Midwestern.
Speaker 4 (05:14):
States, especially with three vows. Right.
Speaker 5 (05:18):
Yes, So we look at that and we say the
General Assembly is actually quite good at that role.
Speaker 4 (05:23):
It's well equipped.
Speaker 5 (05:24):
Those people in our state legislature, they live with their communities.
Speaker 4 (05:28):
It's a job with a salary.
Speaker 5 (05:30):
It's technically full time, but it's not really enough to
support a family, especially if you live like three hours
away from Klembus. So most of these people live and
work and abide by the rules that they create. That's excellent.
What courts are not good at is setting those kinds.
Speaker 4 (05:44):
Of prospective rules.
Speaker 5 (05:45):
What they're good at doing is looking backwards in a
judging between cases and controversies parties that have a concrete
dispute about how that law cashes out in a given case.
And because it is indeed case by case, the evidentiary
deep dive that a trial system is in fact the
best devised system of which I am aware to suss
(06:06):
out the truth.
Speaker 4 (06:07):
For limited, epistemically.
Speaker 5 (06:10):
Confined human beings like us, the trial system is the
best system for that. So, yeah, courts shouldn't be making
social policy because courts are essentially backward looking institutions. Legislatures
should be making social policy because they're the ones who
can peer out into the future and actually see what
it will look like if that rule versus a different
rule becomes the law.
Speaker 2 (06:32):
And change it.
Speaker 1 (06:33):
Right, I mean, a court also seems to me, again
from a layman's perspective, a very ponderous way to solve
a social problem.
Speaker 2 (06:40):
On the one hand, yes, you can have one judge.
Speaker 1 (06:42):
Making decisions, but on the other hand, it's actually once
a decision has been made by a higher court, it's
then quite a procedure to change it. And you know,
legislation is not easy, but maybe easier than working your
way up through seven layers of appeal. So I was
last night because I'm an incrediblely glamorous person with an
incredibly glamorous job. There I was sitting in my chair
(07:04):
at ten pm and as one does, reading the amigas
briefs in US v.
Speaker 2 (07:10):
Scrim Many, and is this strikes me as some of
what you are saying right, It is the.
Speaker 1 (07:21):
It is the plaintiffs asking a court to decide a
contentious social issue rather than the legislator legislature.
Speaker 3 (07:31):
I think it's often or it's even worse than that
in this case, because we're dealing with very unsettled experimental science.
This case, for those of you that aren't familiar, is
about about twenty five states. Half the states have passed
laws that prohibit permanent sex change treatments for children, and
(07:54):
activists across the country and in some cases, joined by
the Biden Harris Departmen of Justice have sued those states
seeking to have those laws. Enforcement of those laws and
joined is unconstitutional. So to put in perspective some of
the specific things that these laws address, you know, cross
sex hormones, permanent drugs that would lead to inability to
(08:19):
have sex for adults, and then of course there's surgeries
for minors. And there are a few different One of
these cases, the one in question here came out of
Tennessee and in the sixth Circuit, where Ohio is. I'm
in the eighth Circuit. Not quite as glamorous, but better
corn and so very good pie. I find excellent pie.
(08:41):
We have a wonderful Mennonite population and the farmer's market
every week, and let me just also say if you're
interested in working in Iowa, we are always hiring, so please,
like always, feel free to reach out. But going back
to Scremeti, which is the name of Tennessee's attorney general,
they were soon they went all the way up to
the Supreme Court, and basically their argument is that one
(09:05):
their law does not need to face heightened scrutiny because
they're not discriminating on any protected class basis. If you're
a boy or a girl, you're not able to access
this permanent life altering treatment under Tennessee law, treatments that
have not yet gone through all of the full experimentation
(09:27):
and process they should, and that this law is rational,
has a rational basis, and nothing in the Tennessee law
at issue here says that a consenting adult can or
can't do anything. I know, there's a lot of controversy
in the media now. I believe Vice President Harris when
she was running last time, wanted to let detained illegal
aliens in prison get sex change treatments and in an
(09:50):
ac Yeah, there's a lot of very contentious side issues.
But here the question is the science is not set
no matter what the activists say, and the state is saying,
hold up until we understand that this is actually safe
and beneficial for kids. We don't think this is right,
and people soon are asking the courts to make a
(10:13):
final decision, and it's not clear to me at all
why they think that one the courts will agree with them,
and so far, almost uniformly, they haven't. And I think
that's an excellent example of across the board judges with
very different demeanors and approaches to the law. I have
come to the same result, which is that a state
can ban an experimental treatment for children that might have
(10:34):
permanent life impacts. And I'm hoping that the Supreme Court
is going to also leave that question to the states
to decide.
Speaker 1 (10:42):
So, I mean, here is where I see a little
bit of tension, although I think this tension may be
entirely self interested, but bear with me. So, I mean,
I take your point that trials are actually a really
good place to get information. And for me, the reason
I'm reading these AMACUS proofs is that this court, this
trial has been fantastic for journalists who write about this issue, of.
Speaker 2 (11:03):
Whom I am one, because getting.
Speaker 1 (11:06):
Information out of these organizations has been extremely difficult, and Alabama,
especially has just gone postal on some of these groups
and is putting out a lot of briefs, and that's
I think good for the public discourse. And yet at
the same time, I sort of don't want this case
to exist because I agree with you that this is
(11:28):
a question for the states to legislate.
Speaker 2 (11:30):
And that we shouldn't. The suits should never have been brought.
Speaker 1 (11:33):
It should have been shot down earlier because these are
just the sorts of questions that should be handled by
the legislature.
Speaker 2 (11:41):
Is that even attention or am I making.
Speaker 3 (11:43):
At the risk of jumping in, I just also really
want to highlight when we're talking about the importance of
an independent judiciary, that the Alabama case in particular is
an egregious example, based again on just the allegations and
what the court has said of these activist groups trying
to effectively gerrymandered their way out of the judge they got.
Speaker 2 (12:04):
Can you elaborate on that just a little bit.
Speaker 3 (12:06):
So they filed their lawsuit, they got assigned a judge
that they thought would not be sympathetic because he was
appointed by President Trump, and basically tried to file another
complaint and get in front of a different judge and
basically avoid the judge that they had been assigned all
to avoid this one specific judge in a way that
(12:26):
at least according to the show cause order. I believe
some people have said maybe unethical, and I think certainly
reflects poor judgment. But in that case, they did not
get out from that judge's purview. And then the judge
granted them relief. He was reversed on appeal, But they
worked so hard to avoid what they were sure was
(12:49):
going to be an unfair judge who then gave them
a hearing, agreed with them, gave them the relief they saw,
and then in the end, like every other court, to
look at the issue, they lost. And now a lot
of this discovery, this explosive discovery, is coming out of
that litigation because you know, they're stuck in court and
they filed, they sued, and now they have to deal
(13:10):
with the consequences.
Speaker 5 (13:11):
But yeah, well that story has been paralleled in state
court in Ohio, actually because Tennessee was a little ahead
of Ohio and adopting the law that protected children in
this way from permanent life altering surgeries. Cross sex hormones
puberty blockers, the effects of which are deeply uncertain, the
benefits of which are certainly unclear, and the risks and
(13:33):
downsides are something that can be evidence based. They sued
in state court, and of course they forum shopped the
ACLU in this instance, representing a pair of plaintiffs to
find a blue county where judges are elected by a
very sympathetic electorate.
Speaker 4 (13:52):
And again they.
Speaker 5 (13:54):
Prevailed at the preliminary injunction stage. The law was set
on ice statewide over our objection. My Attorney General said,
we're going to court about this. We're going to do
fact based discovery. We held a five day trial on
the merits, We had expert testimony, We brought in some
of the same evidence that Alabama saw, and this judge
in a blue county at the end of that trial
(14:15):
reversed himself let the law go into effect. And now
that law is in effect protecting children in the state
of Ohio while it's on appeal in the state court system.
And so what's particularly galling me about the US versus
s cremetic cases.
Speaker 4 (14:28):
I actually think that there are some poor motives.
Speaker 5 (14:31):
At least there's enough evidence to give rise to a
suspicion of the motives here. If you're the President of
the United States, you can go to Congress and say,
you know what, I think there should be a one
size fits all legislative rule with respect to transgender issues
and setting aside all the potential other federalism, separation of
(14:53):
powers First Amendment issues that might be involved in that.
There is a channel in the Constitution for nation wide solutions,
one that is accountable to the people and in which
the states have, through their senators and representatives.
Speaker 4 (15:08):
A way to have input. And they didn't do that.
They went to the court system.
Speaker 5 (15:13):
Why is it perhaps that they suspect that the court
system will say, hey, wait a minute, we don't want
to be involved in that issue, And maybe they suspect
that in certain quarters that will discredit those courts in
the eyes of the public. Perhaps this lawsuit isn't so
much about creating a nationwide rule, where I think their
prospects of success, god willing are very low at the
(15:35):
US Supreme Court. Perhaps it's more of a battering ram
against the independence of that judiciary to basically throw as
ancient siege engines, would you know, like diseased animals into
the courtyard of the people that you're attacking. Right, let's
put a hot button social issue on the Court's docket,
again and again and again until half the country thinks
(15:58):
that even if it just simply applies the law, the
headlines that will be written about it is law Supreme
Court is against transgender youth. That's going to be the
headline no matter how the Court rules, if it rules
in favor of democracy.
Speaker 1 (16:13):
So let me circle this back then to the larger
theme that we were discussing in our last panel. And
do you see other cases that where you think that
that is happening? I mean, the scremati in these issues
around transgender kids I think are the most toxic issue
to me looking at it from the media. But you
(16:35):
guys are looking at it as lawyers. You are seeing
both not just the cases that have political controversy, but
the cases that have big kind of lasting legal implications
for all sorts of things that percolate out.
Speaker 2 (16:50):
So where else do you see cases.
Speaker 1 (16:53):
Where do you I shouldn't say where else do you
see cases elsewhere where it feels.
Speaker 2 (16:58):
Like it's well poisoning?
Speaker 1 (17:00):
It is an attempt not so much to get a result,
but to undermine the legitimacy of the institution from which
you are seeking the result.
Speaker 4 (17:10):
Yeah, I think.
Speaker 5 (17:11):
I mean, one example that immediately comes to mind is
the fact that not only Alabama, but Virginia has been
sued over maintaining their voter rules. Just the basic task
of ensuring that people who have moved have up to
date information. People who are not citizens don't have to
(17:31):
have to worry about someone voting in their name. And
what could possibly be the reason for that, Well, either
you want non citizens to vote, you want non residents
who have moved out of state to vote.
Speaker 4 (17:43):
I don't think that's it.
Speaker 5 (17:45):
Maybe it's just to churn up some mud and to
put additional pressure on the judiciary. I mean, as an
officer who of a state government, I work for the
attorney general. I get to bring loss sometimes and be
the lawyer representing the state. I do think a little
bit about you know, what kind of pressure this is
(18:06):
going to place on our institutions. And I think one
of the things that has lacked in our political discourse
is the resource that institutions constitute.
Speaker 4 (18:17):
They are a public good.
Speaker 5 (18:19):
Maybe I'm too much of a Chicago person here right now,
law and economics, but these are I approve this is
an all your Chicago panel at this particular moment. So
look at that freedom of font, freedom of speech, and
cold winters. And I'll say this though, the resource that
our institutions that they are there are an inheritance for us,
(18:40):
and if you assail them, if you tear them down,
it's not so very easy to rebuild alternative institutions.
Speaker 4 (18:48):
Look at the right.
Speaker 5 (18:49):
I mean, people on the conservative side of the aisle
have been trying their best to build a parallel set
of institutions, as many institutions have been, in their judgment,
captured by an idiot logical viewpoint, and it's not an
easy thing to do.
Speaker 4 (19:04):
There are a few examples.
Speaker 5 (19:05):
Like the Federal of society, where I think it's very
effective to build an alternative ecosystem, but that is no
substitute for the Constitution's judicial power residing in a Supreme
court that isn't itself a political football that descends into
the law of negative partisanship every election cycle.
Speaker 3 (19:23):
And sort of also just thinking about how these lawsuits work,
it's not infrequent that someone sues the state. They often
choose the highest profile statewide officer to be named as
the defendant in the lawsuit. Before we actually get served
with the lawsuit. The fundraising email goes out, look at
this good thing we're doing, suing the evil Republicans in
(19:46):
the state. And then you know, we eventually, hopefully often
win the lawsuit, and then you know, the same people
sue us again and send that another fundraising email. And
I think that that's not by any means all of
these groups. But you know, I maybe this is my
interview Chicago coming out how much money can be donated
(20:07):
to groups that just keep suing And you know, maybe
they get a sugar high of a preliminary injunction and
then it gets vacated, and I guess then they get
more donations and they can do it again. And all
I can say is is I have a deep and
abiding affection for a lot of the activist groups in
our state. In the last year, we defended successfully our
(20:29):
heartbeat abortion law, our book, our law removing inappropriate books
from schools. All these wins wouldn't be possible without the
activist groups that sue us and tee it up for
appellate courts to create finding precedent going forward. Then they're
my best partners.
Speaker 4 (20:46):
I think we've all been there.
Speaker 1 (20:48):
It's midnight, you're a little you're a little hungry. You
just want to go get a preliminary injunction. Yeah, sit
down in front of it a Netflix for a little
while enough.
Speaker 3 (20:56):
I mean, if you wanted to midnight, you have to
call the court and tell them it's an emergency motion.
You got to file it before five pm.
Speaker 1 (21:03):
I mean, do you feel like, do you see things
getting worse or better on this front when you look
at your own states, your own.
Speaker 5 (21:13):
Practice, I would say the frenetic pace and the extreme
noise I root for the Ohio State University. If you've
ever been to the horseshop, it's a great experience. It's
very loud whenever you're sort of like right on the
goal line, the fever pitch noise of the crowd, that
(21:35):
sort of I feel like that's sort of the political
moment that a lot of people feel that they're living in,
where you're right on the goal line. From my perspective,
it's those who want to permanently erode constitutional norms on
the goal line of someone who says maybe we should
not permanently erode constitutional norms and fending them off after
(21:58):
failed attempt at a pass again and again.
Speaker 4 (22:02):
But we're close, right, and.
Speaker 5 (22:03):
That's why it feels like things are such high stakes
if you think you're about to win forever, if you
think that maybe you're about to lose forever, and you
can decide for yourself which side you think you might
be on. But most of America feels like they're on
one of those two sides at this particular moment.
Speaker 4 (22:26):
It's dark right.
Speaker 5 (22:28):
Turns out, though democratic political life together.
Speaker 4 (22:32):
Is not a football game. It's not one where it ends.
Speaker 5 (22:36):
You actually have to go and be friends and neighbors
with each other afterward.
Speaker 4 (22:41):
And so I think de.
Speaker 5 (22:43):
Escalation here is only possible if you start to re
enable the judiciary, the legislative branch, the executive branch at
the federal level, and then the division between state and
federal authority. Those are the shock absorbers for that frenetic
energy is part.
Speaker 2 (23:01):
Of this that everything is nationalized.
Speaker 1 (23:03):
Now, this is a problem for us in the media
where every nothing's a local story, everything is a national story.
And so I would assume that many of the groups
in your state are getting donations from people who did
not know those groups existed ten or fifteen years ago.
And also the cases then end up on social media
in a way that they would not have ten or
fifteen or twenty years ago. And is is there is
(23:27):
that a problem? Is it a benefit because it is
creating opportunities for you to win cases?
Speaker 3 (23:32):
I think from I guess a couple a couple of
points there. One is I find that often more more
often than not, when we're litigating and someone, even when
it gets pretty heated, the opposing council tends to be fine.
You know, there's not there's not the same acrimony there
as you know maybe in the media, maybe even with
(23:53):
comment from opposing council. But you know, when you're actually
in the courtroom or leading up to court, for the
most part, things work smoothly. And I am always interested
to see if some of the negative polarization mo that
you were describing bleeds over from the press and the
media that really turn up the temperature on some of
these cases into the courtroom. And I think for the
(24:15):
most part it doesn't. But you know, there's always a worry.
You know, there's a saying about a judge, and if
I were to hear this about a judge that I
liked and respect it, I probably wouldn't love it. But
sometimes the judges might care a lot about what people think.
And I think that this was expressed there was that
old phrase, the Greenhouse effect, not about climate change, but
(24:37):
about the old New York Times reporter Linda Greenhouse. And
the idea is is that some judges cared a lot
what she wrote in the New York Times. And I
think back to before I was born, but I've seen
the headline. I think it was an early Eighth Amendment
case with Justice Thomas, and she wrote a headline, you know,
the Supreme Court's new youngest and cruelest justice. And it
(25:00):
did not seem to shake him at all. And I
think that, you know, she probably picked on him, but
that wasn't the target of her pen because she didn't
think that that would affect what he would do. And
I think part of this is judges that want to be,
you know, in polite society. They want to be out
with their friends, especially in some of these cities that
(25:21):
may be trend a little more liberal. They don't want
the front page of you know, nationwide publications like the
Des Moines Register saying they're a pigot I mean. And
I think that that is a tool that the media,
who tends to often have a view on a given case,
knows that they can use their advantage to keep that
temperature turned up.
Speaker 1 (25:40):
And we're always completely objective. I don't know what you
were talking about, Yeah, just totally disinterested fighting for justice
and liberty across the land. What issues are people not
talking about at the state level that they should be
talking more about outside of your states.
Speaker 3 (26:04):
Well, it's tough because a lot of the issues that
we are dealing with end up being talked about a lot.
But I think that maybe one sort of hovering, overarching
issue is just like what are these agencies doing? And
like one example of that, And this has gotten a
lot of attention, although maybe not as much as it
(26:24):
should have. The Biden administration was working on a third
attempt at loan forgiveness after the Supreme Court twice told
them not to and FIRS succeed. Yeah, the first this
third attempt they had. In the second attempt, some money
went out the door before the preliminary injunctions saying this
is illegal, you can't do it happened, and the courts
(26:45):
did not order them to claw that money back. So
the lesson that the Biden Harris administration learned was we
need to plan a blitzkrieg, and we need to make
sure that this loan forgiveness goes into effect and that
money gets out the door before a court is able
to wake up and issue an injunction. And they were
trying to make sure that hundreds of billions of dollars
(27:07):
got out the door within seventy two hours, specifically to
avoid judicial review. I think that more and more creative
attempts to violate norms ignore Supreme Court precedents by the
current administration. It's something that now is just happening so frequently,
and there are so many errors in the rules that
they're rushing out to avoid potentially getting overturned. In the
(27:31):
second loan forgiveness, there was a whole section about how
this would only cost one hundred and fifty billion dollars
because of the successful case that they wanted the Supreme
Court in Nebraska against United States, which was their loss
in the first case. They had issued before they wrote
the rule for the second case, and they just didn't
update it. So like each time they have these errors
(27:53):
in these rules, they know they're there. These are hundreds
of billions of dollars. They're trying to get it out
in an election year and are kind of like, well,
that's not that interesting because you know, we can focus on,
you know, the guy we really don't like as much,
and no one wants to talk about the president at
all because he's not even running. So I think I
think that's a real problem is these agencies are really
(28:15):
getting aggressive kind of because maybe they don't think that
they're going to have that long to be aggressive. And
what we learned and the Trump administration is is once
a rule, even an illegal rule, goes into effect, it
takes a lot. It takes a legal process to undo
the illegal rule, which is also I think, you know,
really going to slow things up if the situation changes.
(28:39):
In trying to write the ship.
Speaker 5 (28:41):
Yeah, a couple a couple of things come to mind. So,
just on the topic of judicial independence more broadly, I
think you can categorize the types of threats to judicial
independence into three basic camps. There are political threats, there
are culturalat threats, and then there are the threats from within.
The political threats are the ones we've mostly been discussing tonight.
One ranch of government says, hey, we're going to put
(29:02):
pressure on the courts, We're going to go after them.
Speaker 4 (29:04):
The cultural threat.
Speaker 5 (29:05):
I think that comes from the culture of many institutions
that are behaving like battering rams against the reputations of
individual members of the courts, both at confirmation and then
relentlessly after confirmation. The third threat is when judges brush
back from the plate themselves doing something that they're ill
equipped to do, which is predict the political consequences in
(29:27):
fallout of ruling without fear or favor. And the reason
that you want an independent judiciary is that a judiciary
that is lifetime appointed you can't change their pay. They
have tenure protection with a strong check, but only for
impeachment for bad behavior. Is that that's the one place
where you're pretty much guaranteed you're not going to have
(29:48):
ordinary agency capture problems issues where the special interest groups
sort of take control of an agency and have them
turn the opposite of square corners squiggly, strange, round about corners.
Speaker 3 (30:01):
One last quick point on that The New York Times
is like an end of term roundup, and they list
the important cases, all sorts of issues. But just like
if you click on the arrow to expand, one of
the like three bullet points is a public relations survey
of what the public thinks of the decision and to
think that, you know, it's like seventy three to twenty seven.
(30:23):
Let me tell you there is no case at the
Supreme Court in which one hundred percent of people have
an opinion. There is almost no case in which most
people have an informed opinion, because these are you know,
like you want to tell me that sixty four percent
of the American public thinks that Jarkesi finding a right
to like, you know, go to trial instead of an
(30:44):
administrative log judge like good luck. But that's how it's presented.
Speaker 1 (30:47):
I guess I have been really impressed by the number
of people on Twitter who turned out to be experts
on shoven difference.
Speaker 2 (30:53):
I had no idea.
Speaker 3 (30:54):
Yeah, and the only expertise on Chevron I have is
when I go to the gas station, and in Iowa
it's cases the Great Breakfast Pizza.
Speaker 2 (31:05):
So I'm not going to.
Speaker 1 (31:06):
Make the same critical era I did before and not
leave time for Q and A. But let me ask
you the final question, which is what are the best
and worst things about being a solicitor general that no.
Speaker 2 (31:16):
One knows about?
Speaker 3 (31:18):
Well, let me just make this pitch. I see a
lot of young lawyers in the room. My fellow last
year who's now at Williams and Connolly, had two Iowas
Supreme Court arguments, and she would have had an Eighth
Circuit argument if she wasn't practice barred. We have so
many arguments on important, high profile cases. Unfortunately, we don't
have a lot of discovery, so you won't be able
(31:40):
to do a lot of document review, although maybe you
know in the case of Alabama it sounds like they
had that there. But there are so many opportunities to
go out to serve the people of the state. I
grew up in Connecticut. I'm an Iowan by choice. I
love living in a state where I can defend the people,
where I have a court system. You know, I'm fifty
(32:01):
to fifty at the Iowa Supreme Court. I don't win
every time, but it's a legitimate court. They apply the
law and sometimes they agree with me, and sometimes they
might get it wrong. But they're doing an amazing job.
And I mean some of this attacks on the legitimacy
of the court trickles down. We have one justice voted
(32:23):
to uphold a state law protecting fetal heartbeat in the
state of Iowa, and there is a concerted campaign to
get him non retained on the basis of a substance
of vote in a case. And the only reason they're
just targeting him is he's the only one up for
retention that voted what they would say is the wrong way.
I think that kind of attack on the judiciary trying
(32:46):
to undermine its legitimacy, which is what a lot of
the posts and articles about this are doing. They say,
he voted wrong on one case, so you need to
make sure he doesn't even have a job, that he
can't be a judge anymore.
Speaker 1 (32:57):
This is what does that do to your practice when
you are up in front of these Do you worry
about that?
Speaker 2 (33:02):
Do you worry about this?
Speaker 1 (33:05):
I think this is going to make cases go the
wrong way for you.
Speaker 3 (33:08):
You know, so far in Iowa, I don't think that
they have changed their votes on this basis, but it
is something that I worry about, and not just for
non like for state judges with retention elections. I worry
about federal judges who have lifetime tenure and no backbone.
And I remember, you know, we went to U Chicago
(33:29):
for law school. There are people with tenure there, and
you know, when bad stuff is happening on campus about
free speech or any of these things that they're passionate
about behind closed doors. They know I'm conservative, right, they'll say,
you're so, like get out there, like defend you know whatever.
The second it comes to defending any of this in public,
you know, turns out life tenure doesn't come with a
(33:51):
steel spine. And I see the same problem with the judiciary.
And I just hope that whoever's picking judges is picking
judges they care more about getting the law right than
they do about being popular. I think that is the
key insight into what it takes to be a good
judge of any kind, but especially federal judge. And you know,
(34:14):
to me, it's just mind boggling that you could have
life tenure and not have courage. I just you know,
I was worried when I was in law school and
I was doing some conservative stuff. I was worried they
were gonna like slimy and I wouldn't be able to
get a job at all. Right, And I still did it,
and I was, you know, not a life tenured federal judge.
Speaker 5 (34:32):
So yeah, last one, Well, it's a great job being
a solicitor general, the chief judge Sutton says it's still
his favorite job that he's had. He's said that publicly
and shared it to me several times. And you know,
as far as the fellowship goes, the Simon Karras Fellowship
in Ohio, I see my former fellow there. He argued
four times, including ones at the sixth Circuit, twice at
(34:53):
the Ohio Supreme Court, and once in an intermediate Court
of Appeals and so.
Speaker 6 (34:59):
Las.
Speaker 5 (35:00):
Yeah, getting up to stand up in court and be
able to say this is Elliott. Guys around behalf of
the state of Ohio where I was born and raised,
the state that raised me, made who I am, to
be able to give back to them in some meaningful
way by trying my best to provide this piece of
sovereignty in our constitutional fabric has the best representation that
(35:23):
it could have.
Speaker 4 (35:23):
It's the best job.
Speaker 5 (35:25):
And to Eric's point about needing rebar in your spine,
I think we should select for that when we're thinking
about who should run for state court judges, who should
be appointed to the federal judiciary. Are you able to
live up to the idea that you will not be
partial to the poor and you will not show favoritism
to the great. If you can do that, then I
(35:48):
think maybe the only thing better than being the top
advocate for a state in appellate court might be being
a judge who has that kind of fortitude planted their
feet in the ground the way that they should.
Speaker 4 (36:00):
Well, I think we have two candidates here on stage, so.
Speaker 2 (36:04):
I'm going to throw this open to the audience for
Q and A if we.
Speaker 7 (36:07):
Have HI, I just want to a show you to
ask a question. Based in the last two comments, you
positive that perhaps it's not a good idea for a
judges to be voted out of office based on their decisions. First,
Iowa had three justices vote out of office they when
(36:32):
they found writer gay marriage. And so I just wonder
is it really such a bad idea to have justices
so long as they do have that span of steel,
to have that check on them, either through retention elections
or through partisan elections. Now, my personal like my state
usually has retention elections, and on principle I always vote
know because I don't like communist election. There's only one candidate.
(36:55):
So even if I like the judge, but if you're
if you're actually taken their decision into accounts, is it
really such a bad idea to have the judges accountable.
Speaker 3 (37:05):
To the public. And if they have this.
Speaker 7 (37:08):
Pane of steel, they should be willing to lose their
job if they think they made a right decision.
Speaker 5 (37:12):
Well, I'll say this, I think a judicial philosophy is
a good basis on which to vote for or against
a candidate for judicial office.
Speaker 4 (37:21):
And states in the federal system are different.
Speaker 5 (37:24):
One of the reasons you need life tenure and you
need an independent judiciary of a certain kind at the
federal level is that that institution will mediate disputes between
the states and between the states and the federal government.
And so I think that you have a heightened concern there.
Now as far as state court elections go, I think
democracy is the worst form of judicial selection except for
(37:44):
all the other ones. And when you see in many
of my fellow states a system I think they call
it the Missouri plan.
Speaker 4 (37:51):
Does we have, Yeah, it does.
Speaker 5 (37:54):
The state of Missouri's name dirty to call that the
Missouri plan. But the idea that you have the basically
the local bar which is very politically one sided, constrain
the governor's appointment to just a few people that they
find to be palatable, and you know, it's like four
flavors of activist judge. That system is worse than having
what Ohio has now, which you know, this is the
(38:16):
second election that we've had where you have partisan id
attached as information for the voters among the different justices
who are running, I guess just super quick. I think
that a judge should rule the right way without fear
for losing his or her job.
Speaker 3 (38:32):
I think that is what their job is. I just am.
I think there's a difference when the attempt to non
retain a judge is based on reasons and rationales outside
of what the system itself contemplates. And so if we
had partisan elections, I would probably vote for the judge
(38:54):
to which I had that I thought was going to
apply the lot best. And if there was a judge
that I thought had a judicial philosophy that was inimical
to interpreting the Constitution and the state laws in a
way to their oath, I would vote against retaining that judge,
even if there were no ethical violations or anything like that.
And maybe that's ultimately what the people saying non retain
(39:17):
or trying to argue, but that's not what they're arguing.
And you know, I just try to take people where
they are, and where they are seems to be we
don't like this one correct decision, so we want to
non retain you. And I just don't find that very persuasive.
Speaker 2 (39:33):
We have another question for me, I.
Speaker 8 (39:35):
Think Jeene Meyer. I wondered on this CORRECTI case. I
heard somebody saying, I don't know the details that the
the argument. One of the arguments the other way was
well parent, you know this is parent. Parents are the
ones making decisions about what their children should do. And
I will admit I wonder about some of the people
(39:57):
who are making that argument whether they would apply that
in other situations. Nonetheless, it's a perfectly it's a perfect
clearer to argument.
Speaker 4 (40:04):
What do you what do you if you make that argument?
Speaker 8 (40:06):
Been made?
Speaker 4 (40:06):
What do you? What do you?
Speaker 8 (40:07):
What do you make of that?
Speaker 5 (40:09):
Yeah, so that argument is live in the Ohio State
Court case. And so what we've said in our filing
is what I said in argument in the Intermediate Court
of Appeals last month, was that parents do have rights
to direct in general, the upbringing, care, education, religious impulses
of their children. But that's not an absolute right and
(40:31):
it has to be defined, not at the perch of
the latter of abstraction, but with some measure of specificity.
And then the Glucksburg test applies, where you need to
look not only to whether or not you can contemplate
a system of ordered liberty without such a right to
a certain type of medical treatment, but also whether there's
(40:51):
a deeply rooted history and tradition of such a parental right.
And there is no deeply rooted history and tradition of
parents doing either sex change surgeries for minors or them
doing getting access to having a positive right to a
type of medical treatment that the state has generally proscribed.
(41:12):
And I think the positive negative liberty split is actually
quite important here. It's one thing to say I think
that it violates my rights of conscience for me or
my child to take this type of medical treatment that
is generally required of those who would attend a school,
for example. It's quite another thing to say, I have
an affirmative right to a doctor giving me this type
(41:32):
of treatment, even if the state has said it's not
generally safe or effective for children. And there is no
history or tradition of that ladder component, and so the
rights of parents over children are not absolute. And I
don't think anyone would argue for them to be. And
so the question is where do we draw that line,
And the line has to be looked at in terms
(41:53):
of ordered liberty deeply rooted in the history and tradition
of our common law, in our Anglo American legal tradition.
Speaker 2 (41:59):
Ask a follow.
Speaker 1 (42:00):
Up, we've had situations where states on both sides of this.
We've had California saying, if you can get your kid here,
will terminate your spouse's parental rights.
Speaker 2 (42:11):
I think that did not ultimately pass, but it was
being considered.
Speaker 1 (42:15):
And we've had Texas saying we're going to stick CPS
on you if you take your child out of state
in order to get treatments that we have.
Speaker 2 (42:24):
Deemed to be illegal.
Speaker 1 (42:26):
How should states handle those questions of I'm going to
spirit my kids somewhere else in order to either do
or not do the treatment that I think is best
for them.
Speaker 3 (42:37):
So I think, as with a lot of these cases,
you get these highly contrived scenarios that focus on one question,
but there is actually a rich history and tradition of
the type of rights and responsibilities that, for example, if
you have two parents that disagree about what to do
with a child relating to a healthcare decision, how to
(42:58):
handle that and run away to another state to get
medical treatment is not in that tradition, and so like
I understand that you know or you know. On the
other hand, I know that there's been some reporting about
what Texas is doing, but like, ultimately the question here
is not about kids getting permanent life altering treatment. There's
(43:22):
a long history of how the United States deals with
parental rights over their children, and that gives you the
answer the vast, vast majority of the time. And when
it comes to states passing, like California, laws that you know,
or I guess not passing in this case, laws that
seem very much out of the mainstream that sort of
(43:43):
try to take something out of that long history. Like
we've been a country for hundreds of years, but our
legal tradition goes back even further. And I think you'd
be hard pressed to find a point at any at
any point in time one where like one parent can
like effectively kidnap the child from the other parent to
undergo medical treatment. And so no matter that it happens
(44:04):
to be the trans issue, which is highly controversial, I
don't think that that creates an exception to just like,
let's treat this the way we've always treated this type
of dispute.
Speaker 2 (44:15):
We have another questional looks like over there.
Speaker 6 (44:18):
Tim Rosenberger, also Ohio. It seems like a lot of
the pressure and energy around state court races comes from
the reality in the last several years, they decide redistricting cases,
They decide which votes are going to be counted, They
decide how those votes are going to be counted. You
have these sort of bizarre thing pieces like whoever wins
this Wisconsin Supreme Court seat will determine who the next
(44:39):
president is. How do we sort of take that pressure
off of our state court. Should we encourage them to
be more like the US Supreme Court where they just say,
you know, fight it out. Whoever happens to be able
to stuff the ballots in will be fine. We're not
getting involved. Or is there some way to sort of
insulate them or muscle them up so there's less of
this national politicization on the state court races.
Speaker 5 (45:05):
I think it's tough to answer that question in a
truly comprehensive way, because at some level, when you have
a culture at odds with itself, which is what we
find ourselves experiencing in the United States, it becomes challenging
to say, well, there's going to be no place in
which that pressure comes to bear. I think state courts
(45:25):
are maybe second only to federal courts the worst place
to be the outlet for all of that. General assemblies
and legislatures seem to be much better positioned to do it.
And one thing that general assemblies and state legislators can
do is they can act to define some of the
jurisdiction of their state courts. You know, the Ohio Supreme
(45:47):
Court has original jurisdiction in mandamus over many election disputes.
In fact, Mark Elias sued over our dropboxes rule last week,
another in the long line of zero archlias you know,
long number.
Speaker 4 (46:03):
On my side of the column. Because the Ohio.
Speaker 5 (46:06):
Supreme Court has been given the authority to do that,
you need an answer, you need to answer quickly, and
it's usually a question of pure law, and in that
particular instance, they gave us precisely the answer. Now we
can run our election going forward and without having like
multiple lawsuits in multiple courts of common pleas filtering up
and disrupting the entirety.
Speaker 4 (46:24):
Of our system.
Speaker 5 (46:25):
I think that kind of model can be something that
the Brandeisian Laboratories for Experimentation in the States could maybe
give us some insight on.
Speaker 3 (46:35):
Yeah, to go back to the U Chicago thing, we
only had one F word, it was fair. And I
just think, especially with election law, so many people have
such strong views on like what is fair, and those
are often very removed from what is the law. And
some of the problems arise when people want something that
(46:56):
they say is needed or necessary that isn't the law
as written. And I think one place where courts maybe
find themselves in hot water is when these very sympathetic
plaintiffs and organizations are bringing these claims that ask to
violate the law and they go along with it. And
that doesn't happen super frequently. I think that became a
(47:17):
really acute issue during COVID for a lot of what
seemed like, you know, exigent circumstances at the time. But
you know, as with all things, you know, there's a
saying bad facts make bad law. Same with good plaintiffs, right,
you know, you might get a really sympathetic person and
you know, we're all Americans. We love voting. You know,
(47:39):
I came from Chicago before Iowa. You vote early and often, right,
you vote as many times as you can and.
Speaker 2 (47:46):
Get the dead relatives out.
Speaker 3 (47:48):
Yeah, make it a parting Yeah, and so like, I
understand the empathy there, but you know, maybe to put
myself on the other side from some extremely qualified, smart
people like I don't think empathy is the most important
thing in like applying laws. I think you know, being
able to you know, read the law as written is
(48:10):
which you know dovetails nicely into one of the Federal
Society's three tenants.
Speaker 7 (48:14):
Uh.
Speaker 3 (48:15):
And I just think that inelection law and that's one
area where some some folks have really gone a right, we.
Speaker 2 (48:20):
Are getting the hook.
Speaker 3 (48:21):
It looks like.
Speaker 1 (48:22):
Thank you so much for an amazing times.
Speaker 9 (48:29):
Yeah, thank you all for for staying late into the night.
Speaker 2 (48:33):
We are a little over.
Speaker 9 (48:34):
If you haven't already checked the QR code at the bar,
that will actually take you to one of the best
substacks on cocktail mixology. I encourage it.
Speaker 2 (48:46):
High that that too.
Speaker 9 (48:51):
And I do want to thank our fantastic moderator Megan
and our fireside chat, and thank you all for for
joining us for a really just a fantastic program where
adjoined
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