Muse

You ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger. That's David French. We are going to talk about taking beer on your small planes in Alaska. No, we're talking about excessive fines in the Eighth Amendment. And then we're going to talk about getting drafted to the NFL out of the University of Wisconsin. Okay, no, actually, we're talking about Title IX and deliberate indifference standard when you readmit a student. And then we are talking with Professor Richard Ray about how much the chief justice sucks. Okay, no, we're not. But we are going to talk about the chief justice and what it means. advertising claim against you, Sarah. This will be a fun pod. Buckle up. All right, David. First off, small correction from the previous episode. I said the Judge Steele was from the Southern District of Florida. He served on the Middle District of Florida. My bad. I have no idea why I said Southern District. Totally different parts of Florida. David, the Supreme Court granted a case. Yeah. And it's gotten a lot of headlines. and we should talk about it, but I kind of want to see if we can maybe argue the other side. This is a hard one to steal, man. But let me give you the short version here. Well, you and I have been to Alaska. Yeah. We spoke there, had a great time. Yeah. Alaska, most of it basically you can't get to except by these little planes. So anywhere you're trying to get to, you might charter, you know, the little planes with the, you know, the wheels that are fixed on the bottom and stuff like that. and you wear the headphones and you sit with the pilot and it's terrifying. So that's one of these planes. That's a vivid description. Yes. And he's taking someone out to one of these small villages. That village does not allow the possession of alcohol, which is totally legal. Nevertheless, his passenger brings a six-pack of beer on the plane and nine gallons of beer in the back of the plane. the police hop on board they find all of this and the pilot is indicted on misdemeanor charges he is convicted by a jury of his peers which by the way requires the jury to find that he knowingly broke the law to bring alcohol into this village though it's unclear from the transcript it appears the jury just convicted him of the six pack maybe not the nine gallons of beer so for our purposes, we are just talking about a six pack, but maybe for our steel manning purposes,

it's worth knowing that there were nine gallons of beer elsewhere on the plane. The six pack was in plain sight. He literally couldn't have missed the six pack on his plane. So he's convicted of this misdemeanor. The maximum sentence, I think, is a year in prison and $10,000. The judge sentences him to 180 days with 177 being supervised release. So he spends three days in jail. He pays a small fine. And they take his plane. Yeah. This is his livelihood. And obviously the plane is worth a lot of money. And this is under something called criminal forfeiture. If there is an item used to commit a crime, the government can take that thing. So we hear this like sort of most often of like mom lets her son borrow the car, you know, the car she uses to get to work. The son takes that car and does some, you know, low-level idiot drug deal and gets caught. They not only arrest the son and take the drugs, they take the car. The question for this case is whether, in determining whether a fine contravenes the excessive fines clause, which holds the amount of the fine must bear some relationship to the gravity of the offense that it is designed to punish, courts may consider the gravity of the underlying offense purely in the abstract or should consider the gravity of the specific defendant's wrongdoing. David, this is like libertarian dream season. Like they have wanted this case for so long. This is the perfect headline. You know, guys' plane is taken by the government for over a six pack of beer. Great headline. But I guess I'm curious what your thoughts are and whether that actually is an Eighth Amendment violation. Is that excessive fines? Yeah, that's a great question. I think excessive fines is the right way to look at this. If you're talking about just the penalty for in addition to you've had a

order. So you've spent some time in jail. You have supervised release. So you actually have a criminal sanction here. And then they're adding on top of that, the forfeiture and this asset forfeiture. One of the reasons why this is so frustrating to so many civil libertarians, and I think should be frustrating to all of us, is essentially what you're often doing is you're adding on an extra layer of punishment that is sometimes, I'm not talking about this case, but is sometimes imposed under even a different legal standard, a preponderance of the evidence standard versus proof beyond a reasonable doubt. And this is where you get such absurd things like United States of America versus nine stacks of cash totaling $92,000. United States of America versus 1989 Chevrolet Impala, because you're actually, you're literally just attacking and seizing the property itself. And so here you have $95,000 in value taken from a man who's already spent time in jail over the importation of a six-pack of beer. And Sarah, I know that it doesn't always work to say, as we found out recently in the last Supreme Court term, in a case involving somebody sort of suspected of terrorist sympathies who ultimately ended up winning their case. It doesn't always work that outlining sort of the facts and understanding how sympathetic the defendant is can help you forecast the outcome. It does often work. And this does seem to be one of the most sympathetic cases to take if you're wanting to deal with this problem of excessive asset forfeiture. And the extent of asset forfeiture, I think a lot of people don't quite understand how extensive it is. There is more property, more goods are taken in any given year, and there have been several years where this is true, but more goods have been taken and seized by the police as part of the asset forfeiture process than have been stolen from Americans by criminals through burglary. And many of the stories and many of the situations involving asset forfeiture are just beyond the pale as far as the abuse of the system. I think there is a role for asset forfeiture in the criminal justice system. It is out of control. And so I do think that this case is a tremendous vehicle for really, you know, analyzing how far is too far, how much is too much. But Sarah, you wanted to steel man it. You wanted to steel man the seizure.

I mean, I do a little because I think that it's real. The other side just has all the wind in their sails. So this is Alaska. by the way, the attorney general at the time who filed this, Steve Cox, good friend. I did want to steel man it before I looked up that he was the attorney general at the time that they filed this. That's like I was reading the brief. That's how I found out. So take that for what it's worth. David, you met Steve when we were in Alaska. Yeah. Okay. So the Alaska Supreme Court upheld this criminal forfeiture. Bottom line, Alaska may constitutionally seize and forfeit Kenneth Jopi's approximately $95,000 airplane, even though the maximum fine for his underlying offense was only $10,000 because he had been convicted and there's no question that the plane was used to commit the crime. I guess I do think there's actually, for legal purposes, far more sympathetic cases than this one the six pack of beer makes a nice headline there were nine gallons and remember weight is really important on these small planes so the idea that he didn't ever figure out what was those really heavy things he was putting on the plane and then he saw the six pack like again convicted of seeing the six pack unclear whether he's convicted for the nine gallons I guess, you know, is the forfeiture a fine? Yes, everyone agrees with that, right? Is it excessive under this gross disproportionality test? I guess I think the answer is, at least the steel man answer is no. You know, if you, I think that commuting mom example is a better example where, you know, he sells a dime bag for $20 and we forfeit her, I don't know, $100,000 Porsche or something that she had nothing, you know, to do with it or whatever. But like, nope, this is this guy's plane, his business that he was using. He had been investigated before, like this wasn't his first rodeo. There's a reason they took this guy's plane. And again, we're not asking whether this is fair or good or right, we're asking whether it's an excessive fine under the Eighth Amendment, whether it's grossly disproportionate.

Yeah.

I don't know. I'm not convinced yet.

Well, I could say, you know, when you talk about the maximum fine when it comes to the actual sort of criminal statute being $10,000 and then take the $95,000 plane.

That part's not ideal. Yeah.

That's not ideal. However, I do think the strongest argument in the steel manning process is here. Look, if the evidence indicates that this guy was essentially engaged in an alcohol running operation, Which, by the way, it is pretty interesting that in the year of our Lord, 2026, there is a town that bans possession of alcohol.

Lots of towns in Alaska, by the way. And Alaska talks about this extensively in their brief. Alaska doesn't have the kind of police force that would be normal in a bunch of other states. There's these tiny villages. They don't have a lot of police. There's huge problems caused by alcohol that lead to the need for police that they don't have. So they just have banned alcohol, which they are more than welcome to do. So like, they're like, yeah, it cuts down on all sorts of crime, including domestic violence, assaults, all the things that alcohol can often exacerbate, lead to cause that normal police forces can also deal with, but we don't have a police force. So yeah, we've banned this. And now this guy's running a taxi service into these towns and knowingly allowing his passengers to bring alcohol. So yeah, we took his taxi.

Yeah, I could imagine a situation if you had, say, a prosecution for a criminal conspiracy to evade alcohol importation bans in which, you know, he's part of an organized effort to circumvent the bans and his airplane is indispensable to it. I can definitely imagine factual situations and scenarios that strengthen the state's claim here. A lot to me depends on, you know, let's diving into the precise nature of the charges that whether it strengthens sort of strengthens the steel and the steel man or weakens the steel and the steel man. But I can imagine a situation in which, in essence, the airplane is just indispensable to an ongoing criminal conspiracy, an ongoing criminal scheme, I think what you often have with asset forfeiture is this is our extra way to punish you.

Or this is our way to make money.

Or our way to make money. And that's where I think you start to really begin to run into trouble. And this is some of the factual scenarios that you've laid out. But if it is this thing that you own is indispensable to the criminal enterprise you are running, then I think that's the strongest case for asset forfeiture. The weakest case for asset forfeiture is one of the ones you're describing. You're a mom on the way to school. There's a dime bag in your minivan. You're not aware of it. And next thing you know, you're not only arrested, but that minivan is being towed and being put into a forfeiture process. That's a different situation. So I do think this is actually, from a dollar value standpoint, six-pack, again, if that's the core element here, six-pack, versus $95,000, from a dollar value standpoint, this is a case that really is eye-popping. But if you're going to look at what AFSAT forfeiture abuse is, this is not necessarily the paradigmatic case, because the aircraft is indispensable in this circumstance to the actual commission of the crime.

And when Alaska enacted this forfeiture, they specifically referenced forfeiting airplanes that are used to circumvent the alcohol prohibitions. Like, that doesn't make it constitutional or not constitutional, but like this was the specific harm that the legislature was trying to address. And so again, if the test is grossly disproportionate, the state legislature felt like this is what we're trying to get at. There are some facts that I think would make it more steel man-y, for instance, that at least I haven't seen here. One would be that the passenger, for instance, there's evidence she specifically picked this guy to fly her because she knew that he allowed this. So, like, he was getting more business because he knew he was letting his passengers break the law. Or two, that they paid him extra to do it. So, like, either he's getting more money because he's getting more business or he's getting more money because they're literally, like, giving him money out of the table. at least in what I've read there was no evidence of that but like that that's sort of the example of your more paradigmatic good criminal forfeiture case is that it's just like this is what it's for yeah we can't let you keep your plane because this is what you do with it and frankly like three days in jail and a slap on the wrist fine you're just going to go back to your plane to do more of it. Again, this is like in between. Yeah. Like, we have the conviction on the knowingly seeing the six-pack. We're not sure about the nine gallons of beer. He'd sort of...

you know, had these investigations going on, but not a lot of evidence that he himself was benefiting from it. Maybe he's just a really nice guy who couldn't say no to a pretty lady with a six-pack.

A tale as old as time, Sarah. A tale as old as time.

How many men get in trouble? Because she's like, oh, would you do this for me?

And I've got similar light. Yeah.

The passenger, on the other hand, And if you're bringing nine gallons of beer into a town that prohibits alcohol, like, that's kind of the, like, we know what you were doing.

You're a dealer at that point. You're a dealer. You're a trafficker.

So, David, I guess I highlight this case because, like, it's sort of, it's clickbait to the extent you're a libertarian, I guess. Libertarian clickbait on the one hand. But I think the legal questions are actually, like, pretty hard and a pretty close call. Well, since they granted cert, that means there's, again, a roughly a 70% chance that they're going to overturn the Alaska Supreme Court and say that this is grossly disproportionate. But that's going to be a big change for, like, nearly every state in the country if they hold this.

Yeah, this is going to be interesting. I mean, I don't think people quite realize how much civil asset forfeiture or asset forfeiture in general helps prop up the budgets of police departments.

I was going to say, it's like, it's the budgeting problem. Like how, ooh.

Yeah, yeah. I mean, this is something, we're talking hundreds of millions, billions of dollars collectively in goods, everything from cash to Lamborghinis, to minivans, to gold bars, to paintings, to you name it. I mean, all kinds of stuff is seized. And again, some of it is seized because they are taking the actual instruments that are used to accomplish a criminal conspiracy Some of it, not so much. And there are some just awful stories out there. For example, a shocking amount of money, of cash money, has cocaine residue on it. And so...

Is that a real thing? Or is that just like an internet thing that turned out to be like Snopes-y?

I'm 99% sure it's a real thing. If it's not a real thing, we'll correct. You can fact check me in real time.

Okay, National Geographic says 90% of paper money in circulation carries trace amounts of cocaine. Yeah. Yeah. Lots of, lots of trace amounts of

cocaine and paper money. Yeah. So now I will happily correct if this is not something that drug dogs ever spike on, like, or ever alert on without, in the absence of like recent criminality with the actual money. But if they're having a drug dog spike on alert on cash is, you know, as a basis for forfeiture, yikes. There's just it's it's extraordinarily broad and it has been extraordinarily easy to forfeit property, often much easier than obtaining a criminal conviction. And that to me, that's what's dangerous. That's what's scary. If you're having essentially a criminal-style punishment in the absence of criminal burdens of proof. Now, I'm not saying that's what we're dealing with here, but that has been an issue. And then just the incredible widespread abuse of civil asset forfeiture. I'm going to be very interested in this case.

Next up, David, we're going to talk about a Seventh Circuit en banc decision involving some of those Title IX due process cases that we talked about, except this is like what happens after the due process case. We'll be right back. A good night's sleep is an essential part of my job, and that's where the Sedona Elite from Brooklyn Bedding comes in. I feel supported, comfortable, and fully relaxed, which helps with falling asleep faster and waking up feeling genuinely restored. Brooklyn Bedding makes quality mattresses right in their Arizona factory, combining American craftsmanship with honest pricing and thoughtful design. With options for every sleep style, cooling technology for hot sleepers, trusted support for spinal alignment, and a 120-night comfort trial. They make it simple to find a mattress that truly fits the way you sleep. So go to brooklynbedding.com and use my promo code ADVISORY at checkout to get 30% off site-wide during the summer sale. That's brooklynbedding.com promo code ADVISORY for 30% off site-wide. Exclusive with my code brooklynbedding.com promo code ADVISORY. Howdy shoppers. Fire up that propane grill and settle

in for a new season of Hulu's hit animated series, King of the Hill. Hank and Peggy are staying active in retirement. That's a dog. You will not have to lift a finger. Bobby and Connie hard-launch their relationship.

Now that we're dating, it's important your parents know I'm a man.

And the alley guys are, well, they're still the alley guys. Yep. Watch the new season of the Hulu original series, King of the Hill. Now streaming on Hulu and Hulu on Disney Plus for bundle subscribers. Terms apply. This has been a paid advertisement. All right, David. Judge Kirsch writing for the majority of the Seventh Circuit on Bonk. Isabel Arana was a freshman at the University of Wisconsin-Madison when she told police in the university that she had been sexually assaulted by another student, Quintez Cephas. The university provided academic accommodations, separated Arana from her alleged rapist with a no-contact order, and expelled him from campus. After a jury quickly acquitted Cephas of related criminal charges, the university chose to readmit him, citing new evidence. Arana sued the school under Title IX of the Education Amendments of 1972 and contends that the university acted unreasonably when it readmitted Cephas and refused to provide her with additional safety measures beyond a no-contact order. The panel had said that it could proceed to trial, that perhaps the university did in fact violate Title IX. The en banc court reverses David and says, no, the university has no responsibility beyond the no contact order because they would need to show something more like deliberate indifference. But the fact that they looked into it, they decided this was the appropriate remedy. There's no evidence that she is actually in any harm or that he has violated the no contact order. And that her claim is to her sort of peace of mind is not a cognizable Title IX violation. And this thing's not going to trial. And David, that's why I sort of teased it this way, right? We've had all these discussions over what do processes do to someone at a university who has been accused of sexual assault. And this is like the next chapter. Right. Okay. So now the university does have more due process. This guy is acquitted in 30 minutes by a jury based on evidence that included video surveillance evidence where they said, no, she was not intoxicated to the point of being unable to consent. Therefore, he was acquitted. He seeks readmission to the university. Funny enough, David, within a year of being readmitted, he's gone because he joins the NFL draft.

Yeah, that's hovering in the background here. Like, I do wonder, I do wonder if your name is not, you know, you're not a future Detroit Lions wide receiver, if you're going to get similar treatment here.

But legally irrelevant.

Legally irrelevant. Legally irrelevant. Yes.

David, there is so much to unpack here, but just high level, did they get it right?

High level, I think they got this right. But there is, as you said, there is a lot to unpack to show how they got this right. So let's sort of start with point number one, which is you have a university proceeding under a preponderance of the evidence standard that finds him responsible for sexual misconduct. You then have a criminal proceeding under a different burden of proof, proof beyond a reasonable doubt, under which he's acquitted. Now, long-time Advisory Opinions listeners will know that getting an acquittal in a criminal process does not mean that you're entitled to dismissal of a civil claim because it's a different burden of proof. So it is entirely possible that somebody can legally prove that it's more likely than not that you committed a crime, but cannot prove that you committed it beyond a reasonable doubt, which means you cannot suffer a criminal penalty for the accused for the offense, but you can suffer a civil penalty. So in that sense, the university wasn't required to vacate its finding and sexual misconduct finding because of the criminal case. So in theory, its civil finding could have been left completely intact without violating his rights. So then the question becomes when there's this acquittal, what are the university's obligations here? And that really is sort of the key issue here. And the university is under no obligation to void his sexual misconduct finding, but is it also under an obligation to impose it to its fullest extent or to the extent that the survivor of the attack or the victim of the attack wants? And so this becomes like the key question in the case. And Sarah, when I was reading this case, I thought a lot about some different cases that we discussed. And these were the cases around Title VI and anti-Semitism on campus. And the question is, it's a very similar legal standard. What are the responsibilities of a university when it is dealing with claims of student on student harassment?

harassment. How decisively does the university have to act to avoid liability for permitting the harassment? And the Seventh Circuit reaches a finding very similar to that that we saw in the Massachusetts District Court when it allowed a case to go forward against Harvard, but not against MIT. And essentially the way the court said it in the Massachusetts cases is that when students were behaving in a way, were engaging in anti-Semitic harassment, MIT tried to stop it. It took steps. It was not indifferent. But under the facts as alleged in the complaints, Harvard, on the other hand, was indifferent. It didn't take steps. And so this really seems to double down on the idea that universities are going to be liable for student-on-student harassment only in pretty limited circumstances when they just don't seem to care about it. Not when they do something, but the student doesn't like what they do. It's when the university is just, as they used in this case, deliberately indifferent, just doesn't care. That's when liability will lock in.

Well, shout out to Judge Kirsch for this one. It was an 8-4 decision by the en banc court. He had been one of the votes to take this. So there were some really interesting concurrences in this, like weird concurrences. Not weird, that's the wrong term. Just like unusual, I don't know, something. Okay, so let's start with the Judge Brennan concurrence. This is really about the spending clause aspect of Title IX. You've seen the Supreme Court justices start to be quite interested in spending clause-related legislation, and that perhaps that is quite different in terms of the obligation that it puts on states compared to other types of legislation. Spending clause legislation, according to the Supreme Court, right, this is a deal struck between the state and the federal government. It's not a mandate from the federal government. Instead, it's if you want this money, then you must X. And the Supreme Court, at least it looks like, is going to say that X must be a pretty clear indication of what you have to do to take the money. So, for instance, a university becoming liable for a Title IX violation for readmitting a student? Basically, in this concurrence, he's like, no, that's not at all clear from the deal that was struck for these federal dollars. And because this is a spending clause case, we need to take that into account. We're looking for something more like a clear statement. But David, it's like there's some interesting stuff built into this about what questions are not answered in this case, what else the spending clause might lead to. So a few things in this concurrence, which is so efficiently written. When a school agreed to prevent discrimination, exclusion, and denial of benefits on the basis of sex, that's all the language in Title IX, it was likely not aware it would be liable for pre-notice incidents of student-on-student sexual harassment. How can the state discriminate or exclude anyone when it hasn't had a clue yet? single instance. The circuits disagree on whether Title IX imposes liability on schools for a single instance of student-on-student sexual harassment. After a school learns of harassment, it is ambiguous whether that school subjects a student to discrimination by creating an environment where she is more vulnerable to harassment or whether she must actually experience harassment. That the circuits disagree on the meaning of the text suggests the liability-creating contract term is ambiguous, again, under that spending clause analysis. Student-on-student harassment occurring off school grounds is another open theory of liability. Title IX's text does not unambiguously condition where discrimination must occur. And then, David, I'm like, okay, that's super interesting. Yada yada. And then all of a sudden, this kind of felt like it came out of nowhere for me. Consider the spending clause in Title IX in another setting. The statute does not require states to allow biological males to compete on girls' sports teams. Nothing in Title IX clearly

and unambiguously alerts funding recipients that they are prohibited from restricting a school-sponsored sports team to biological women or girls, citing Gorsuch concurring in the case from this term. If anything, Title IX unambiguously forbids biological males from competing in women's sports. When Congress enacted the statute in the early 1970s, the ordinary meaning of the term sex was biological sex and not gender identity. Title IX and its regulations plainly recognize the inherent physical differences between biological men and biological women, a difference the states also knew when the statute was enacted. And Title IX anticipates and approves of single-sex sports teams in order to provide equal athletic opportunities and competitiveness between the sexes, particularly in the contact sports. Title IX then imposes liability

on states that allow biological males to compete against girls. And then we like totally leave that aside. So David, it's just sort of funny. This whole thing is about how the spending clause requires clear statements. And, you know, here's all these examples where there's not clear statements. And then it's like, and by the way, let's weigh into something that the Supreme Court has not decided yet. On the other side, that is a clear statement, I guess. That was, that's a

choice. That's a choice. Here's my gratuitous opinion upon another issue that is related,

but not... Very hot button. Very hot button. Okay, next we have Judge Easterbrook's concurrence. I joined the majority opinion, which establishes that the record does not demonstrate deliberate indifference by the University of Wisconsin to Arana's interests. Instead, it shows an effort to accommodate the potentially incompatible interests of multiple students. This disposition leaves unresolved an initial question. Deliberate indifference to what? As Arana sees things, a university is liable when it neglects any student's welfare after an alleged sexual assault. Under Title IX, however, a university is liable only when it discriminates on account of sex. Deliberate indifference as a form of intent can show the state of mind that separates disparate treatment, actionable, from disparate impact, not actionable. But Irana does not contend that the university engaged in disparate treatment, favoring men over women when responding to complaints of misconduct. Instead, she insists that the university did not give enough consideration to her need for peace of mind. This may be so, but inadequate consideration to a student's well-being differs from sex discrimination. So David, I agree that inadequate consideration of a student's well-being differs from sex discrimination, but I'm not sure I agree that deliberate indifference to sexual harassment can only be a violation of Title IX if you show that they're treating the women differently than the men who have been sexually assaulted when the whole purpose behind Title IX is that there are differences between men and women, including what's going on here, for instance, in this case, which again, her allegations were that she was passed out from alcohol use and was sexually assaulted while she was unable to consent due to alcohol use. Well, that's a thing that happens far, far, far, far more to women. The idea that you would need to prove that the university had situations where the same thing had happened to men, but they had treated that allegation differently. No, the whole point is that we have Title IX, so that I don't have to show that, because different things happen to

women. And also, that would mean that your ability to achieve justice or to, you know, get protection from harassment, we'd be dependent on some of the very unlikely event that there's a similarly situated male in a reasonable timeframe from when you were victimized that you could point to as a comparator. I mean, yeah, there are men who are victimized by sexual assault, often by other men, much less so than by women. But there are men who are victims of sexual assault without question. But this idea that you have to know, that puzzles me, Sarah. That puzzles me.

Yeah. So I think the majority got this right. I think it's super interesting, sort of like how we see the play out of the woke fever of that sort of 2020 timeframe. We also are still seeing a play out on these Title IX, no due process, you know, sexual misconduct allegations. But that concurrence, I do not sign on to.

I agree.

You can easily show deliberate indifference without showing comparator. The on the basis of sex is, yes, for the very reason that the university, again, theoretically, not this university, does not care when women are sexually harassed on campus. It doesn't need to also show that it didn't care when men were sexually harassed on campus. No, because Title IX was about the fact that women need different treatment on the basis of sex because there are physical differences. They're all, like, the sexual harassment itself. It is different when a man sexually harasses a woman than when a man sexually harasses a man or when a woman sexually harasses a man. I'm not saying there's better and worse, but all three of those are quite different power dynamics, resulting harm, sort of all the things, right? They're just three different things. We don't compare them to figure out who's getting treated by what thing. Nope, you were sexually harassed because of your sex. That's the Title IX violation.

Yeah.

Sex and...

race are different. Yes. And this is something that a lot of people just need to really embed here. So like Title VI, you cannot have separate sports teams on the basis of race. Title IX, you must have separate teams on the basis of sex. Why? Because they're different. They're different. If you had no sex distinction in sports that was permitted, if it was a sexual non-discrimination rule. How many women do you have in Division I sports? Almost none. Almost none. And so, yes, there are differences between the sexes and the law has to reflect those differences. And a concurrence is blind to those differences is a bad concurrence.

All right, David, let's welcome Professor Richard Ray of the Harvard Law School to come talk to us next about the chief justice moderating from the front. We'll be right back. Introducing Meta Glasses.

You have questions, they've got answers. Hey Meta, what's the capital of Peru? Lima.

How do you say, where's the restroom, in Spanish? ¿Dónde está el baño?

Hey Meta, is a hot dog a sandwich?

Technically, no. Spiritually, yes.

Hey Meta, what should I do with my life?

That's one of life's biggest questions. What do you think? Ask anything with the new MetaGlasses. Priceline Negotiator! It's me, the Priceline Negotiator! We don't need the jingle twice. What about a third time? Stop it. This is about vacation inflation and how Priceline negotiates amazing deals on hotels, flights, and rental cars. Seems like you decided! Yeah, but I didn't mention that you can save up to 60% off hotels in the Priceline app. Time to read the tagline! Fine. No one deals more deals than Priceline! Please stop. Priceline. Touche. Priceline. Priceline.

Okay, Professor Ray, the title of your column was, Is Chief Justice Roberts Moderating from the Front? Which is kind of a fun title. And your, you know, ending is about these sort of impassive virtues that the chief is now adopting. And you have kind of these three chapters of the chief as chief. Tell us your thesis.

Well, the column is reacting to this idea out there that the chief justice isn't a real institutionalist or that he's ceased being a real institutionalist. And so my claim is that what it means to be an institutionalist in practice depends a lot on the conditions that you're facing. And the chief is now facing different conditions from earlier in his tenure. In particular, there's now five justices probably to his right on most major issues. And so he's, I think, in part engaged in a kind of institutional strategy where he's not dissenting so much as he did in maybe an earlier period and maybe assigning himself more opinions and writing those opinions a bit differently sometimes in order to advance his goal of being a successful chief justice, a leader of the judiciary, but also in order to moderate the five justices to his right, at least sometimes.

And you refer to the immunity case in all of this. And I believe you have this great line about it being akin to pea soup.

That's charitable. That sounds charitable to me.

How does this fit in your argument?

Well, I think a lot of people look to the immunity decision that the chief authored as a major example of him abandoning institutionalism and maybe going in support of Trump in some big way or dissolving the law, something very cataclysmic and out of character with the way he was described many times in his career. And I don't view it that way at all. I think that part of what was happening there was that the chief was confronting a pretty divided court where there were some immunity maximalists who wanted to give President Trump and other former presidents a lot of immunity, maybe almost complete immunity. And there were more moderate views. And of course, the liberal justices were not too keen on presidential immunity for criminal prosecution or ex-presidential immunity. And so I think what happened there was that he ended up trying to make sure there was a majority opinion and he wanted to author that. And he wrote the opinion in ways that actually make its bark sometimes a lot worse than its bite. And so there's ambiguities throughout the whole opinion that could allow the scope of the immunity it provides to be quite a bit larger or quite a bit smaller. And I think you all have commented on that at times. I think the dissenters acknowledge that the majority itself and the unusual passage kind of expressly said the thing we're saying here is not so easy to apply. And then they remand the case for the lower courts to figure out what to do. And so I think that that's an example of the chief justice engaging in this kind of institutionalist strategy. And he takes a laugh for it.

of course, from all sides. But that's part of what it means to be an institutionalist.

So you talk about the chief assigning himself opinions. As you've been charting the chief's career, have you noticed any shift in that and shift in when he's doing it, how often he's doing it? Talk a bit about that real power that he has to take the baton himself.

Yes. So I think the chief has always liked to give himself plumb assignments. In that respect, he's not plumb like prior chief justices or other justices in general. Getting a good assignment is a major form of currency and if you look at you know who's getting the assignments from whom that can be an indicator of who's kind of in or who's on the rise internally in the building so at that high level of abstraction i don't think there's been a big change but there was this period right after justice barrett joined the court around 2020 to 2022 when my perception i've not i've not rigorously analyzed as much of this enough data points to do a rigorous analysis My perception was the chief justice was not going along so much and was dissenting quite a bit more. And I think you saw that in some of the COVID cases. I think the biggest examples of that were the abortion cases of that era, where the chief justice is not only not assigning himself the opinion, he's separating himself from the other justices, whether it's in a partial concurrence or dissent. And so I think that that was a distinctive period in his career. So I think that it's not so much that he went from assigning himself to not assigning himself big opinions. I think it's more what to do in these choice moments and how to position himself in relation to the majority. And I will say one other tiny thing, which didn't make it into the column, which is that in the first year of the Chief as Chief, I think that there was a period when he was experimenting with being kind of like a little Scalia. I mean, Justice Scalia was really the leader then. He was more senior. Lots of people liked the idea of the biting dissent. And the Chief wrote a couple biting dissents that year. and then basically stopped doing that for a long time. And even when he wrote Big Descends after that, they weren't biting, in my view, in the same way. And I think that he kind of realized that wasn't the way for him to go, partly because of his own style, partly because he was the chief.

When we think about that 2020 to 2022 period, this is what I actually found most interesting about your column, because he had been chief with Kennedy as the swing vote. It had really been a 5-4 court when Kavanaugh replaced Kennedy in 2018. The chief becomes the swing vote. So he is now the most powerful justice because he's the chief with all the powers of the chief. And now he's also the most powerful justice as the swing vote. And it's like Mario mushroom. And, you know, you just sort of feel like the chief is like, this is awesome. Cool beans. Like everything runs through me now. That is so short lived. Two years later, Justice Barrett joins the court, as you say. Now there's five justices, arguably, to his right. It's like a whole new world, and you kind of see him struggle with that for your 2020 to 2022 period. And I hadn't really been able to articulate it. I think you did a really nice job of like, oh, he's sort of continuing to think he's the swing vote, which is sometimes going to put you in dissent, and then realizing, like, nobody's following him, right? It's like looking behind him and being like, oh, oh, no. like everyone went to go sit at this other lunch table. And so from 2022 on, him joining the majority gives him back at least one of his main powers, the chief power, which is that power to assign the decisions and decide the aperture of the decision itself. And so, you know, we've talked about Kagan as a very powerful seventh vote. Anytime she's offering to join a majority that would otherwise be 6-3, there's going to be several justices that don't want a 6-3 decision and are willing to make some compromises. And so it, you know, we've never really had a powerful seventh vote, but I think that is Justice Kagan. But we haven't spent any time on the far more powerful sixth vote because he's the chief. So he can join sort of against the majority's will, if you will, like they would rather it just be a 5-4 decision. Please go join the dissent, Mr. Chief Justice. And he's like, no, no, I'll be sitting at your lunch table. And then they're stuck because not only is he sitting with them, he now controls the conversation at the lunch table. He assigns the opinion, oftentimes, as you say, to himself. And then how it gets written, how wide, how narrow. And then the other five really only have the choice of whether to join or not join. I mean, they can concur in the judgment only, but like, meh. And this is like, I think the chief's secret institutional power that no one's really writing about much or talking about much. And I know it's a bit nuanced, but this is why I wanted you here. And can I ask you to law professor us for a moment and do the thing that I never actually understood in law school or cared of? I don't know. Will you...

you teach us of the bickle? Just do a whole bickle lecture for us. I don't know. David, are you like super up on bickle life? No, I am not up on bickle life at all. Okay. Alexander Bickle gets cited like a shot of tequila in any sort of legal conversation. I mean,

it's just like all the time. It ought to be. It ought to be.

And he writes this thing about the passive virtues. You say maybe we should call them the impassive virtues just go forth on alexander bickle please great i can't resist just going

back to what you said before about the lunch table dynamic because you're making me realize maybe even more of a nuanced power than i described in the column because part of what he can do as chief is give the opinion to people who he knows will write it more the way he wants and not give it to the people who would go off in a different direction and just in general the fact that he has this assigning power is purchased it's reasons for people to listen to him in general because they want to get plum assignments. So anyway, there's a little more nuance that I think you just kind of suggested there a minute ago. Great, so Bickle was an eminent scholar of the Supreme Court and constitutional law in the Warren Court era to a great extent. And his idea of the passive virtues was the idea that one of the most important powers that the Supreme Court or really any court has, or really maybe any person, is to not decide things, to postpone decision, to stay one's hand. And one salient example of this of the Warren Court era was the issue of miscegenation laws, which prohibited interracial marriage. And after Brown v. Board, it was pretty clear that miscegenation laws could not be constitutional and were invidious, as is obvious. And yet the Supreme Court waited a long time, like over a decade, to decide that question. And in order to avoid deciding the question, it had to do some fancy footwork procedurally to keep the case out of its own docket. And that was, of course, a very controversial move at the time. It's often thought to have been, that strategy to have been spearheaded by one of Bickel's mentors, Justice Frankfurter. And the idea was to kind of conserve capital, save fire, wait until the time was ripe to issue a big decision, even if you're expecting to make it at the beginning. So that's one example. It's not the only example or the only kind of passive virtue. And so you can see it's a kind of temporization. The court doesn't do something big now because it thinks it'll be more effective. For example, Mike produced less blowback to do it later. Okay, so that's Bickel's idea. And I have a kind of a quibble or a tweak to it. I think passive virtues is a great label. I think it's a little bit more accurate to say impassive. And part of the reason for that is that the passive virtues are still active in a way. The court is deciding things. It's doing things. It's just not doing everything that it might do. It's not, for example, deciding the merits of the paradigmatic Bickel example. Another reason I like impassive a little bit more is that it captures, I think, a little bit more accurately the uncomfortable nature of this maneuver, that someone's case is not being decided quite the way it ought to be because of the strategy. And I think that should make judges and us uncomfortable. It's a kind of detachment from the case at hand and maybe a sacrifice of parties now in favor of parties later. And I like the idea that impassivity, it to me picks up on that a little bit as well. So anyways, I think the chief is arguably doing something like that. I think there are probably cases where he wouldn't like to be part of the majority or would kind of quibble a little bit more here or there, or maybe even write a strong dissent as he did in some of those abortion cases in the 2020 to 22 era. And he's not doing that.

He's just signing someone else's opinion or writing his own opinion that's a little bit muted. It's speculative for me to claim that, but I think there's some evidence for that. And I think that's a kind of individual justice or chief justice impassivity or passivity for the sake of a strategic goal.

That is very interesting. Is there an area? It seems to me that you had some judicial passivity for a while after Heller and McDonald. In other words, it just, they decided those cases and then they did not take another case for a very long time. We joked on the podcast that you wait for the law to mature. Well, the law had matured. It had grown facial hair and had its learner's permit. And they still were not weighing in since, of course, they have. are there areas right now where you're seeing this impassivity where there are intentionally unanswered questions?

So I think there are a lot of examples. And I'll say one little thing about the Second Amendment thing. Part of what was going on there, of course, is that Justice Kennedy's vote was hard to predict. And so there's kind of like an intercollegial impassivity or passivity that can arise because people are not totally sure what the median vote wants. Maybe the median vote's not totally sure what the median vote wants. So that's another kind of way this can arise. But I'll say one small example that comes to mind recently is what to make of trans equality and trans rights. So the court has not been completely passive or impassive on that topic, but I do think it took a little while. And in Scrimetti, for example, it bracketed the question of what level of scrutiny.

trans discrimination, like facial trans discrimination would generate. And they sort of bracketed again this last year. So I think there's a little bit of impensivity going on there. I think there's also been maneuvers like that on more structural issues like non-delegation and article in power. These are issues that seem constantly to be bubbling up but never to be seized by this court. But never say never because part of the idea of these strategies is the time may yet come. Or maybe not. Or maybe we'll move on to something else and they'll never come to the fort.

So, right. Different types of impassivity. The Bickel-Warren Court, you know, Frankfurter type example, to me always felt like, no, no, no. The court as a whole kind of knew what the plan was. Right? That like, it was about the credibility and efficacy of the court itself that if you move too quickly against political culture, At some point, you're going to get ignored. You lose credibility because people ignore your opinions. The backlash hurts the institution, which, of course, has neither purse nor sword, merely judgment. But on the other end of the extreme, I think the Kennedy example is perfect, right? There's all sorts of cases that you had. You had, by definition, four votes to grant cert. But if you didn't know how Kennedy was going to vote, you wouldn't grant cert even though you had the votes to grant cert because four votes is enough to take the case and not enough to win the case. A totally different strategic question. And I guess the problem now is, you know, David and I have talked about how I think it's healthier for the Supreme Court not to have the 4-1-4 dynamic and to have something more like, again, whether it's 3-3-3 or 2-3-3-1 with like Gorsuch out on his little, you know, Neal Island. It creates this three-body problem where no one can be quite sure where all the votes are coming from. So can you say more about the different types of impassivity and like maybe assign them percentages? You know, this doesn't feel like a court that's all on the same page and they're just like, oh, let's wait on, you know, transgender, you know, levels of scrutiny issues because of the court's credibility. And much more like, where's, who's with me here? and who are my friends and this keeps switching and I don't know you people.

Great. So I do want to get back to your interesting point about whether it's better to have the three factions as you view it. Just take that if you want. Yeah. Well, okay. Well, I'll say something briefly about that. I think that I clerked for Justice Kennedy. I'm a big Kennedy stan as I'm with the young people today saying about

And you clerked for Justice Kavanaugh at the D.C. Circuit.

He was a judge then but yes, for Judge Kavanaugh. A big fan of Justice Kavanaugh too. But I thought the Kennedy era had definitely the pathologies that people identified very much at the time of pandering too much to one person and idiosyncratic citations to these candid concurrences and so forth. But it had some really good stuff going on too, especially the unpredictability, I think was really an asset, especially in hindsight. And I think that...

The marketability of the clerks on the market, you know, after...

Yeah, you can take that conclusion wherever you want to.

I benefit from it.

Indeed. The spouse of the pod, perhaps, yeah. But I think that you need that kind of unpredictability somewhere in the system. And I am happy to the extent the current situation is fostering that. And I think that there are more things that the justice can do to foster that. So that's kind of an initial suggestion about that. About the strategy point, different types of impacivity. So another example that is pretty salient, that in some ways it's kind of like a half-Brown-de-Board scenario, as I think the Supreme Court's reaction to the second Trump administration, I think displays a lot of this. So if you remember last summer, is I vividly remember the Supreme Court was granting all this interim relief to the Trump administration. And people were saying they always do all for the Trump administration, which wasn't true. And they always do all for the Trump administration on the interim document, which also isn't true. But they were really for the administration a lot. And boom, boom, boom, boom, boom. And I think that, and there were dissents, you know, often there'd be dissents from typically the three local justices. I think what was going on there was a kind of unified approach by the six more conservative justices that they thought, well, this is a time when somewhat consistent with the Chief Justice's public statement when impeachments are being threatened to lower court judges, this is a vehicle and a time for us to show that we are siding with the administration where we think it has good legal arguments in an expedited way. And so there was a plan there in the sense that part of strategy, I think, and you can call it strategy, you can just call it being a responsible judge. Some of these cases they knew were pretty sure they were going to rule against the administration eventually, like on the Birthright Citizenship, EO, the extent that the Federal Reserve is going to come up there thinking about that clearly that summer. And so there was a kind of temporization or ordering a decision there, in my view. But I think the liberal justice is probably... had some inkling of that if they didn't know it for sure, but they weren't on board in the way that in the miscegenation era, the whole court was on board. There weren't dissents from the temporization or delay or impensivity in that time. The whole court kind of agreed, maybe unhappily, but agreed to push off the miscegenation issue for a good while. So that's another kind of intermediate example, I think.

That feels like where is the threat coming from and then try to placate that problem? Surely it feels like the real threat is now coming from court packing from the left if Democrats win both houses of Congress and the presidency in 2029. So what would you expect from a temporized court then?

Well, I think I'm leading into the strategic dimension of this. I just wanted to make clear that I think all of this is happening on top of a lot of legal views that the justices have as individuals in this group. So I'm not trying to say that they're abandoning what they view as the law. And the interim thing is a great example. This is Bickel reborn. Bickel's point was that you don't take a miscegenation law and say that's constitutional. You don't condone something that's invidious and legally abhorrent. Instead, the whole point was to avoid saying that kind of thing. But you do have to kind of cut some procedural corners along the way. And I think the interim order situation is somewhat similar. The court didn't decide cases the wrong way, but they maybe did decide them a little faster and in some cases a little slower than they might otherwise have done. So I do think that there is a kind of abiding concern about court packing just as have selfish interests and self-interested reasons and institutionalist reasons to be concerned about. And I do think at the margins that will probably affect things. I don't think that's going to come in any more in the short term than it already has. In other words, I think the court has already kind of addressed that in some way by ruling and big salient cases against the current administration, kind of showing they do have a lot of independence from partisanship. But when the time comes and, you know, if the political tides turn the way you say, probably be in the back of some of their minds, but it'll just depend on what cases are coming up,

I think, whether or how they can act on that. Well, here's a question for you. Would an ultimate act of institutionalism, if you were wanting to, say, for example, throw your body in front of court packing, be to, for a conservative justice to resign during a democratic presidency? or is that a institutionalist move beyond the pale one? We're not going to go that far to sort of placate the powers that might be, but is that even something that it would be a sort of an ultimate institutionalist play to block or forestall court packing?

But it would have to be the chief and there's no way, not because it's a Democrat, there's just no way the chief is walking away.

it's so interesting i'm not sure i've ever contemplated the possibility of kind of deliberately handing a seat to a certain party to achieve a goal like that so it's a really interesting possibility that seems hard to imagine someone actually psychologically doing but but maybe they ought to but what what is realistic and has definitely happened is i think one significant one step removed from that which is a justice setting up some sort of criterion for stepping down that is politically indifferent and therefore could become very politically inconvenient. So we have Justice Ginsburg's passing away. It's not that interesting an example of that because she became very ill and passed away. But there are softer versions of that kind of dynamic. So Chief Justice Warren, for example, it seems like he tried to time his retirement to give the seat to another Democrat. He was actually a Democratic appointed, but to give the seat to a Democratic appointed person who would be more in line with his ideology. But when the election results didn't come out the way he expected. He thought about reneging and people thought he should renege. Some did. And he said, no, I can't. I've already announced my retirement. I've kind of tied my hands. I have enough nonpartisan integrity to stick it out. This is when Earl

Warren announces his retirement under LBJ. LBJ tries to elevate Fortas to the chief justice seat that fails for reasons that are in lots of books, including mine. And then Nixon gets to fill the opening, and everyone's like, ooh, huge coup, we get to pick the chief. He picks Warren Berger, who ends up not being a conservative Nixon pick as Nixon wanted anyway. So the joke was kind of on,

well, everyone. Yeah, well, in a similar spirit, you might imagine that I've actually endorsed something like this, that many people have, that the justices, all the justices, maybe any justices, first justices to do it, to get extra credit, should lock in some sort of retirement plan that's publicly known. And maybe that will help one party, maybe it won't. If they actually said, I'm going to retire when the party didn't appoint me as in power, that could actually seem more partisan. It's kind of like a partisan blowback there. You know, you want to check partisanship without embracing partisanship. But I think a more institutionalist, non-partisan approach would be to say, I'm only going to serve this many years. Who knows who's going to be president then? come what may I'm doing that and stick with it I think that would be a good idea

of course we've also seen the other justices then hold over cases when they know that someone's about to roll off it's like well let's just wait because we know that we're going to get X Y or Z which further politicizes the court

it's a great point you're making I can't think of I don't know of a time when they've done it that crassly but I must say it hasn't happened or it couldn't happen

fair enough I don't have an example to point to

yeah because you're like a turn limit skeptic right

I am.

Right. So I'm kind of seeing a version of term limits. Yeah. And you're kind of pushing back and saying, well, that will just create a new opportunity for manipulation around that. And that's a good point.

All right. Closing thoughts. What grade do you give the chief? You know, if you're thinking of the chief when he comes on the court in 2005, all the way to today at 2026, with the goals you think he has, you know, his sort of like, John Marshall is my North Star. What grade do you give him?

I feel bad trying to give grades like this. You're literally a professor. I know, but he's the chief justice. So I guess the grade that would capture my sentiment would be something like an A-. It's a really hard job. He's made mistakes. But on the whole, I think it's been a success as far as he can make it one.

So I can't let a scholar of the chief's opinions go without asking this question, circling back to immunity. If a prosecutor tries to try a former president for selling a pardon

under Trump, the United States, can you prosecute? So you've zeroed in on that footnote, I think, that is one of the most pea soupy parts of the whole thing. I talked about this in the column a bit. I think the answer is yes, but it's only because I think background principles would save the prosecution and the footnote is not enough to stop it. That's my guess, but you're exactly right that that is quite a cryptic passage.

That's why I call it the Trump won decision, because it always was going to have a part two. And the question is, you know, they thought they would have part two, maybe as soon as after the election when Trump lost, but he didn't so that we haven't had part two yet. But yet I feel that part two may be coming. We'll see. All right. Thank you so much, Professor Richard Ray of Harvard Law School, for joining us for this conversation on Chiefdom. Thank you so much. well david always a treat to have professor ray on the pod oh yeah absolutely and i enjoy

justice roberts conversations he is he is an interesting chief justice and i love these conversations i learned a lot i enjoyed it a great deal i'm so i'm very glad we had him

well some other follow-ups david one do you remember the would you rathers that we did

Yes.

So got an email back from that teacher. 60% of his students got a five on the AP exam. 30% got a four and 7% got a three. That's a 97% pass rate for that class. So congratulations. I think the Would You Rathers, I got to say, I think this is a bit of a correlation, not causation. I don't think the Would You Rathers caused them to do better on the exam. I think having a teacher who created the Would You Rathers caused them to ace the exam.

Amen to that. Yeah, that's fantastic.

But congratulations to the Covenant Day School folks in North Carolina.

Well, heck, the Would You, just the substance of them. You would only ask those questions to a class that's been taught pretty darn well, because those are not the questions that the median American is really ready to answer, unfortunately.

Indeed. And so with that, David, our next episode, I am super pumped about. We're going to have a crimapalooza with Professors Oren Kerr and Rory Little talking about this term, but only criminal law and the Fourth Amendment. And I want to talk about medieval torture chambers. And anyone, by the way, if we have any listener who can figure out what I'm talking about, I will be so impressed.

And we've, well, can I say this? We've already actually had the conversation and it is great.

But we'll play it for you on the next episode of Advisory Opinions.