The Roberts Court delivered a number of wins for conservatives in its recent term, and Professor John O. McGinnis thinks it may mark the maturation of the Court’s administrative state jurisprudence. Host and contributing editor James Patterson is joined by Professor McGinnis, who explains both the broader trends of the Supreme Court, and some of this year’s major cases, including Mahmoud v. Taylor, US v. Skrmetti, and Trump v. CASA. 

Related Links

Law & Liberty’s Coverage of the important cases of the recent term:
John O. McGinnis, Logic Without History
Chad Squitieri, Nondelegation Doctrine in Limbo
Joseph Griffith, A Victory for Religious Liberty
James Rogers, Skrmetti‘s Win for Self-Government
Adam J. McLeod, A Charity Case
Richard W. Garnett, Education Pluralism Delayed

Transcript

James Patterson (00:06):

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson Law & Liberty is an online magazine featuring serious commentary on law, policy, books, and culture, informed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. I’m your host, James Patterson and contributing editor to Law & Liberty. And our guest today is Professor John O. McGinnis, the George C. Dicks Professor in Constitutional Law at the Pritzker School of Law at Northwestern University. He is a graduate of Harvard Law School and has areas of expertise in constitutional law, international law, and antitrust law. Today he is going to be giving us our Supreme Court rundown, which we do annually. And so we are going to start with just a general discussion of the session and then go through some of the more important cases and maybe touch on some interpretive questions at the end. Professor McGinnis, welcome to the Law & Liberty Podcast.

John McGinnis (01:32):

Delighted to be here.

James Patterson (01:34):

Alright, let’s get into a general question is: how would you describe the docket for the past year? Was it a victory for conservatives, a retrenchment of the progressives? What is the general thrust of all the cases combined?

John McGinnis (01:51):

I think overall this was another very good term for, if we want to use the term conservative versus liberal, which doesn’t completely describe the court because there is an interpretive axis as well. There’s also an overlap between what conservatives and liberals think about interpretation. So I think that it’s fair to say this was a strong term for conservatives, although I would note that what I think is the most distinctive about the Roberts Court, what I think it will be most remembered for in 50 years is an administrative law revolution. In other words, trying to put back the administrative state within the bounds of separation of powers, forcing the court to say what the law is and the legislature to legislate rather than have the executive branch create broad rules under discretion. I think that may be petering out a bit because there were at least two cases where the court could have taken the further and declined to do so. So I think we see that this is one way I would describe it as a mature conservative court in which at least in the administrative law area, the clear objectives may actually have been largely realized. On the other hand, there are still very important decisions that I think conservatives welcome particularly, the curbing of universal injunctions–which goes to the nature of the judicial power–and I think a very important religious liberties case in Mahmoud v. Taylor, which is very important both doctrinally and sociologically. And maybe I think the most important case of the term.

James Patterson (03:47):

You really stressed before we got started, how overlooked the administrative law cases were. So why don’t you tell us about the case that you think has been most overlooked and what makes it so significant?

John McGinnis (03:58):

So one very important case is FCC v. Consumers’ Research because there the petitioners tried to make a full-blown nondelegation argument and the court rejected it despite indications before that the court was interested in perhaps revisiting the nondelegation doctrine. This may suggest that we are coming to the end of the revolutionary period of the Roberts Court on administrative law because first of all, there is a strong dissent by Gorsuch speaking for himself and Justices Alito and Thomas arguing that this again was a very broad delegation and while it may have met the old standard of “intelligible principle,” it still allowed the executive branch large policy discretion of the kind that critics of the administrative state have suggested only Congress should exercise. And actually, of course, the Gorsuch, including in a dissent that was joined by Roberts, had raised questions about the intelligible principle doctrine.

(05:14):

And Justice Kavanaugh, who’s in the majority in this case also had raised questions about it. So there seemed to be perhaps a majority for really changing the nondelegation doctrine and requiring Congress to make the major policy decisions in legislation. And that would’ve had huge implications for the administrative state because right across the policy space Congress has, at least critics would say, abdicated its policy authority and given that over to the executive branch, allowing the executive branch to make really legislative decisions. Nevertheless, Kagan–an opinion by Justice Kagan–really brushes that aside. And that suggests, I think, that we’re not going to see a major change in the nondelegation doctrine. And indeed Justice Kavanaugh, in a concurring opinion, suggests well that’s no longer necessary because the court has already done work to confine the administrative agencies. And two things in specific, he discusses, one, the Loper Bright decision that takes away interpretive discretion from the administrative agencies and places it in the court.

(06:30):

And two, the major questions doctrine that suggests that at least in new kinds of actions by the administrative agency, ones that aren’t traditional, and if they are major and go beyond filling in the details in a new way, well then Congress has to come back and authorize it. But that’s not a constitutional rule, it’s a rule of statutory construction you might think of as a poor man’s nondelegation doctrine. So I think that case is really very important. But the nondelegation doctrine has been a target for conservatives for as long as I’ve been a law professor, and it really suggests that the nondelegation doctrine isn’t going to change much. And it suggests that it won’t change much because the court has already a structured doctrine in a way that it thinks sufficiently confines administrative agency. So I think that’s a very important case.

James Patterson (07:27):

Right. This is actually the first I’ve heard someone talk about it to that degree. Do you think maybe it’s because there’s a bias for big changes and in this case this isn’t really a big change?

John McGinnis (07:40):

I think that’s right. I think that’s right. So it’s a case of course that liberals are quite happy with and conservatives hardly want to trumpet. And maybe also there’s truth to Kavanaugh’s concurring opinion that the nondelegation doctrine has become less important as a target after Chevron was overruled. And we have the rise of the major questions doctrine, which now, and as Kavanaugh’s concurrent suggests, is part of the warp and woof of administrative law.

James Patterson (08:12):

Well, I guess congress has had its bacon saved now they don’t have to go into session all the time.

John McGinnis (08:18):

That’s right. Well, still with the major questions doctrine, they may force Congress to come back and legislate. And so I think that’s the argument and note that what it allows the court to do is save old large delegations. And of course if it struck those down, you might think that would rather be chaotic, or at least if it struck them down retrospectively, because there’ll be all sorts of regulations that will be called into question. And yet the major questions doctrine allows it to say, well, you can’t go further if it’s not a traditional way you’ve exercised authority under broad delegations, we’re not going to let you go further. And that creates less disruption. And so it’s a very carefully scalpelled doctrine to prevent disruption and protect reliance interests without allowing the administrative state to go on in the way it did before.

James Patterson (09:20):

So moving on to a case that’s close to my heart. We have the Mahmoud v. Taylor case. What is this case about and what made it such a significant event and religious liberty?

John McGinnis (09:32):

Well, the case is a case that comes out of Montgomery County. Montgomery County in its English language curriculum introduced a variety of “inclusive books” that at least I think it’s fair to say, celebrate at both same sex marriage and gender transitions. And of course, that’s at a fault line in our society, both about traditional religions–notice that the lead plaintiff in this case was a Muslim–all the Abrahamic religions, at least traditionally, I have affirmed opposite sex marriage and certainly a binary view of the sexes and an immutable view. And so this is in some sense a substantial challenge to that. And the Montgomery County had permitted previously religious parents to opt out of the curriculum but then decided that was too disruptive and prevented its objectives and said, well, your children have to attend this curriculum. We won’t give you notice of when these books are going to be read and they have to attend in any event.

(10:49):

And a group of a coalition of actually parents who are Christian, Jewish, and Muslim challenged this and said that this is a burden on our religious liberty and we should be able to opt our children out of this public school curriculum. And this was, I think, the major religion case of the term and it I think changed or at least may suggest even further changes in the doctrine of religious liberty and also I think is an important case sociologically and politically for reasons I’ll discuss. So let’s begin with it doctrinally. So doctrinally, what was important about the case was the idea that these celebrations could be a burden on religious liberty. And the argument here is really very similar oddly enough to cases in the establishment area in which, for instance, the court has said that school prayer, even at graduation can be a burden, can harm, can create an establishment of religion because there’s some coercion involved, there’s a captive audience.

(12:05):

And in this case, of course, it’s a very young captive audience that’s going to have trouble making its own decisions about whether or not the teacher is right, about whether the teacher and the curriculum is right about celebrating these matters. And the court also points out quite correctly that the instructional materials for the teachers really told them to shut down, effectively shut down discussion if someone said, “well, how can someone transition? This is a boy, a boy  is a boy, a girl is a boy.” They were to say, “well, that’s a hurtful comment.” And that’s obviously a way of, in some sense a condemning a kind of religious perspective. And so that’s significant in itself. It suggests that, at least for children of tender age, the actual speech of the government can be a burden on religion. So that’s, I think, new and important. Secondly, doctrinally, the court relied on a case called Yoder.

(13:08):

You may remember this case. It’s a case in which the Amish challenged the obligation to send their children to high school as a burden on their religion because it would integrate their children into a modern way of life and pull them away from their religion. And that case is a famous case. The court upheld the right of th Amish to pull their children out of public school. And it did so despite the fact that that law was neutral in its application. It applied to all religions, people who are not religious, the high requirement to go to high school. And that might seem to be blessed by a case called Employment Division v. Smith, which allows neutral rules even if they do burden religion. And in this case, Justice Alito in his majority opinion said, well, of course they didn’t apply Smith in Yoder and we’re not going to apply it in burdens that look like Yoder.

(14:12):

He didn’t quite say what those burdens were. I guess one could say maybe burdens on children are those kinds of burdens. So that’s significant. I think it’s also maybe significant, as you may remember, that Justice Alito is no fan of Smith. He dissents, or he concurs in an opinion, and says that Smith should be overruled previously. And you might say, well, by making another exception to Smith, at least Justice Alito may be hoping to set it up for overruling because in stare decisis analysis, one way the court often overrules cases is this just, well, there’s been a lot of exceptions to this. It makes it hard to apply and therefore that’s another reason for thinking that the doctrine is wrong, that we can overrule it. So I think it’s very significant doctrinally. Of course, sociologically this case is enormously significant because this is a case about public schools and the curriculum of public schools.

(15:16):

And that is in some sense the fault line between this traditional, religious view of morality and a new morality that I think has come up. And the question is how far and this meme in the dissent, how far democracy demands that we allow, encourage new norms that are compatible with the way we think our democratic polity should live. And that is the big fault line here, and I don’t think it’s going away. And so that’s why it’s significant. One point I would make though is you might say that in one sense the liberals should be happy they lost this case because one of the pressures for school choice and homeschooling is precisely that religious people feel alienated from the public schools. And so if they feel more alienated, that’s going to make a greater pressure for homeschooling, which may well have to be constitutionally permitted. And school choice, which the court in a variety of decisions has said is all right. And you actually can have vouchers for religious schools. So in that sense, by making public schools more friendly to people of traditional religious views, it may take some of the steam out of the move to demand alternative schools or alternative structures for education. And that may actually be a democratic reinforcing aspect of this decision, which I don’t think is widely understood.

James Patterson (16:59):

Yeah, I wanted to get at this issue about the schools. What is it that the court really is always dealing with? Is it the court itself? Is it the laws where so much of the religious liberty case law has to do with schools like from Lemon v. Kurtzman to this one, you see it all based around school funding or the curriculum content. Why is it that religious liberty is so based around education minors?

John McGinnis (17:29):

I think it goes away. It’s really a political theory issue, I think ultimately, and two ideas of the enlightenment, I would go back far as to say that. So one idea of the enlightenment is very much liberal, decentralized ideas. So you might want to really encourage different sets of beliefs and so be protective of people’s right to opt out and to protect those beliefs to actually going back to other school decisions to give money in some sense to religious schools so long as you give it to all private schools. That’s one vision. But then there’s another enlightenment vision that goes back to Rousseau that really worries about education, actually says that education says that what we really have to do is prevent education in a democracy from having quote as he puts it, “the prejudices of the fathers be reflected in education and prejudices of the families.” And the reason is that makes it harder to form the general will of democracy. And of course it does. It creates a much more pluralistic, much messier world if the next generation comes up with a whole variety of views. And so I think that’s the reason it’s really a fault line between two different views of the enlightenment, two different views of democracy, one that celebrates real pluralism, a real pluralism in different perspectives, and another that’s much more worried about the coherence and the unity that democracy needs.

James Patterson (19:14):

That’s great. Alright, so another case that got a lot of attention was the US v. Skrmetti case. It’s not something I think people would’ve expected to see at the court even like 10 years ago, but this concerns transition care for young kids here referring to transition from one gender to another. This was a Tennessee law that prohibited them. So what did the court rule and what do you make of the decision?

John McGinnis (19:46):

Well, the court upheld this ban. So the ban to be clear, was a ban on gender affirming medical treatment for minors. And so we’ve seen this across the country. This case came out of Tennessee and the argument for it is minors can’t make these irreversible decisions and we’re going to uphold them. So one way of understanding this case, and I think this is the way the court, the majority opinion and we’ll talk that there important concurring opinions here as well. Majority opinion, I think really tried to understand this is a case about minors, about young people and really therefore it wasn’t really a case about discriminating against transgenderism at all. It was just about minors. And of course then it just gets rational basis review and maybe even particularly lenient rational basis review because even in other cases, even cases like the First Amendment when young children are involved, we don’t actually have the kind of stringent scrutiny that we would have even for well-established rights like the First Amendment.

(21:01):

So I think that’s the way the majority puts it. Both the dissent and I think an important concurring opinion by Justice Alito say, well, is this really fair way of understanding this? I mean it seems that this is sort of aimed at transgenderism. This can’t be seen to be neutral in any way. It’s only aimed at the use of these drugs for transgenderism for other reasons you can use it. So it isn’t really easily understood as just a medical intervention. And so he thinks you have to deal with the question of whether transgender people are a quote “discreet and insular minority.” And he writes that, well, they really aren’t according to the traditional standards because they don’t look like people who have been discriminated against in the way that African-Americans were, not certainly by laws, and that there’s nothing on the order of the visibility.

(22:03):

In other words, you can’t actually see whether people are transgender very readily. And so some of the traditional tests, we shouldn’t include them as a discreet insular minority. And so that’s a very different perspective and I think is going to be important going forward because the court has accepted cases that seem clearly about deciding that transgender people can’t participate in sports for instance, or at least in a sport of their choice of the gender of their choice. And that, I think, is going to raise much more directly these questions of whether transgender people are a discreet and insular minority. And so I think we’ll hear a debate about that next term.

James Patterson (22:54):

And transgenderism as a social phenomenon does have its own peculiarities that make it difficult to make perfect analogies either from issues concerning black civil rights or LGBT or LGB rights. I guess because of this, the transition itself requires surgical or pharmaceutical interventions in this case specifically for young people because of the nature of puberty and the changes that come with the bodies. Do these kinds of differences potentially affect the decisions that judges will be making?

John McGinnis (23:30):

I think so. I mean, one, again, socially one might say that the difference is someone who looks at the case, the Supreme Court more as an institution that reflects deep social trends in society. There’s just no doubt that rights to homosexual conduct have been much more widely accepted than transgenderism. And I think that’s going to have an effect on how the court is likely to deal with these cases. And I think also the sense that men and women are different and, therefore, not interchangeable in sports even whatever interventions have been made is very deep rooted in society. And so I think it’s likely to have a substantial effect on the way the court deals with these changes. There have been some interesting articles that have been, even by liberals, who’ve been very critical of the way these cases have been litigated, suggesting that the cases have gone too far and too fast and are just very unlikely to succeed in the objectives of the transgender movement. And I think that’s right. It’s seems to me very different from the cases of the same sex marriage litigation which unfolded under a longer period and I think was much more carefully targeted to move more incrementally to the objectives of that movement

James Patterson (25:23):

For some people. We’ve a bit buried the lead here because we’re only now going to talk about Trump’s executive order on pausing birthright citizenship. The court ruled on this and what was the ruling?

John McGinnis (25:38):

Well, so first of all, it’s important to note that it didn’t rule at all on birthright citizenship. All that was thought to be the rule and it was never likely that was going to happen because it didn’t take that case for this issue. It actually took the case for something that it goes way transcends in some sense, birthright citizenship because it’s now a phenomenon in every administration. And the phenomenon I’ll describe as this is there’s the administration, Democratic or Republican, takes some legally controversial step. The Biden administration, for instance, it was a payment of school loans, forgiveness of that, forgiveness of school loans. A good example is of course, birthright citizenship and the Trump administration. And then what happens is groups that are opposed to that find a district with a set of very favorable judges to their perspective. And that’s easy to do actually in the US was there are a lot of districts, and we still have a blue slip phenomenon in the Senate that allows home state senators veto power over district court judges.

(26:55):

And so actually even under Republican administrations, the justices who are appointed in California, our district court judges are somewhat liberal. And conversely, even under Democratic administrations, the district court judges in Texas are somewhat conservative and you can find the best district and get a result that’s likely favorable. And then this single district judge does a nationwide injunction and stops the administration’s program in its tracks. So that’s the political, social issue that’s raised by this. And so the court’s decision to eliminate, and I’ll say it’s maybe a little too strong to say that, to say that as a matter of course, at least, the district courts can’t enter such injunctions, will help both administrate, both Republican and Democratic administrations. And their theory of why this is the case is really a statutory theory about what equity meant in a statute that was passed very close in the beginning of the republic.

(28:10):

And the argument was that it doesn’t include the power to have these nationwide injunctions because equity only gives the power to give “complete relief to the plaintiffs in a case.” And if you sue, just as an individual in a court, for instance, in San Francisco, about one matter or the other, it’s not obvious to give complete relief, you have to have a nationwide injunction. You can say, well, the government, you can’t do this to this particular person that gives them “complete relief.” So that’s the holding of the case and the reasoning of the case is that’s all that equity required as equity was understood around the time of the early republic. Well, I think you, and I’m not unhappy to not begin with this case. Well, it’s a very important case. I think the case and the dissent in the case and the criticisms and the worries are a little overwrought in the sense that there are other ways to get fuller injunctions than just to an individual party.

(29:22):

You can bring, for instance, a class action and that can protect everyone similarly situated. And so that, while it isn’t a universal injunction, it can give complete relief to people who are maybe threatened by this order, at least if they meet the standards of class actions, which will I’m sure turn out to be another debate. Moreover, in some cases you might say to give complete relief, you might have to move to a more, something that looks more like a nationwide injunction, and that may be an example in the birthright citizenship case. Many of the plaintiffs in these cases are states and states say, well, we want to treat, we think that everyone in our state who was born, who’s here and was born in the United States is a citizen. And well, that can apply only to people in their state because of course some people in their state may have been born in other states. And so how are you going to give effective, complete relief may actually turn out to be quite a broad injunction. So while this is an important ruling, its actual effects on the ground, I think, remain to be seen to see how much of a substitute class actions are and how much it will be necessary in particular cases to have broader injunctions to give the kind of complete relief that the majority in the court admits that equity contemplates.

James Patterson (31:05):

So no reading on the actual Fourteenth amendment, we don’t get comprehensive statement about religious liberty and Mahmoud v. Taylor. We get a kind of punt or dodge in the administrative law case, it feels like everyone kind of got a piece of what they wanted but maybe didn’t quite get the home run in any individual case they were hoping for.

John McGinnis (31:32):

That may be fair. I tend to think that Mahmoud v. Taylor was a pretty comprehensive victory for religious liberty. And, as I say, maybe sociologically, it helps the public schools and in that sense takes some of the steam out of a movement. So that might be the silver lining for liberals, but in both doctrinally and in its strong support for parental liberties to raise their children in their religion even as against what happens in the public school, I see as a pretty dramatic win for religious liberty and continues a stream of wins in the court. I would say that for the Roberts Court, religious liberty has been second only to the administrative state so far in its importance. And, as I’ve suggested, maybe the administrative state changes in the law of the administrative state are, may now be tempering, or maybe running out, or slowing down.

(32:48):

And that Mahmoud v. Taylor gives no sense that that’s true in the context of religious liberty. So I would put that caveat on your description. I think religious liberty still seems to be a strong engine of constitutional change. I think of constitutional change. Of course, defenders would say going back more towards the original meaning of the constitution, but I think we see that as a long way to play out. And indeed there was one case we haven’t talked about, of course, because it didn’t have any result, which was a case coming out of Oklahoma in which the court didn’t decide the case because the justices were divided four to four with Justice Barrett recusing. And that case was whether a holy religious school could be a charter school. And it was a Catholic school. And that remains an important issue. And so that case is going to come back in one form or another with a different school to the Supreme Court and Justice Barrett will be the decider. And you might think the chances for those who want to expand religious liberty to include the ability to participate in any charter school program, I would rate their chances as pretty good. So I think we’ve got a ways to go in looking at where religious liberties will go in the Roberts Court.

James Patterson (34:20):

Well, I will 100% accept the correction because it’s in a direction that makes me feel much better about that area of case law that is religious liberty. Two final questions. One is were there any examples of the development of originalism or any kind of interpretive methodology that stood out in this? Or did we just have a sort of normal sort of year in which the court’s making normal decisions?

John McGinnis (34:50):

So going back to the administrative law cases, I think we see a kind of pragmatic endpoint or stopping point even to originalist revolutions. So the revolution is to try to put the administrative state back into the separation of powers, but the question is how can you do that without disrupting the administrative state? And the court, I think, feels that it’s done so with the major questions doctrine and overruling Chevron without bringing out the heavy artillery. And so, for pure originalists, that doesn’t make any difference or much difference. And yet we see the court, I think, exercising a sort of pragmatic stopping point. And so that’s I think the most important aspect because otherwise I don’t think there were that many full-throated new and novel originalist discussions in constitutional law. Although I would say that in statutory interpretation you might say that the Trump v. CASA case, the case about universal injunctions that focused on the meaning of equity close to the early republic had a statutory interpretation.

(36:14):

It was very similar to constitutional interpretation. It sort of took a text and tradition approach that looked not that dissimilar from what the court has been doing in the Second Amendment. So it looked at the text, what did equity mean? But then it started to look a bit at the traditional forms of equity, even after 1789 and suggested that nothing looked like universal injunctions. So in that sense, we might be seeing, and I think this is a good development, although I will bracket exactly how it should be done, we should understand statutory interpretation as like constitutional interpretation. We shouldn’t say for instance that statutory interpretation is textualism any more than we think of constitutional laws, just quote textualism. It’s statutory originalism, understanding the text of a statute in the context of its time, including the legal interpretive rules of its time. So I think there’s a hint of that in the cases, and I would welcome that methodological development.

James Patterson (37:27):

So final question. I’m sure some people anticipated when we got to the Trump v. CASA case that we would bring up something that I’m now only going to bring up, which is that the court typically tries to keep disagreements or internal politics among the justices in the chamber. They don’t like to reveal it too much, but, in Justice Barrett’s opinion, she made some pretty pointed comments about Justice Ketanji Brown Jackson. Is this supposed to be a very pointed demonstration against her or is this a more typical kind of way of addressing a dissenting justice in a case like this?

John McGinnis (38:10):

Well, certainly there have been often pretty sharp responses, although they’re often in dissent. Justice Scalia, for instance, was famous for his sharp pen. Justice Barrett of course was a former clerk to Justice Scalia. But it is true that Justice Barrett has hardly been known for her sharpness. And of course, I think it’s fair to say Justice Ketanji Brown Jackson’s dissent was extremely sharp saying this was really a threat to the rule of law. And Barrett’s comment as well, judges have to follow the law as well, and we only have constrained power. So I think this is interesting in this sense. I do think that some of the dissents this term, both Justice Jackson’s and in some cases Justice Sotomayor’s were particularly, I think struck the majority at least is particularly shrill. And maybe that’s not surprising in our society that why shouldn’t polarization come to the Supreme Court? But you detect at least on the part of the dissenting justices some real unhappiness and even anger.

(39:26):

And this was a kind of response to say that, well, we are following the law too. Well, at least we’re following our understanding of the law. You can’t say that we’re being lawless. And so that’s the context in which I read it, a really sharp response to the idea of the court that they are countenancing violating the rule of law. No, they’re following their best understanding of the rule of law, and at least the dissenters should give them that, that they’re doing that in good faith. And I think Barrett seems to think that Jackson is really kind of crossing the line here and that’s why she’s responding pretty sharply. I think an interesting question going forward is some division between Justice Kagan on one hand and Justices Sotomayor and Justice Brown Jackson on the other, if you ideologically score the court, Kagan is really sort of midway between what I would call the Roberts, or maybe it’s a little closer to Sotomayor, but midway somewhere.

(40:36):

And so she’s really not with them completely jurisprudentially, and I think she’s going to have a choice about how far she’s going to side with some of these majority dissenting opinions. She did so in the CASA case, which was sort of surprising because at Northwestern University I heard her at law school, she came and really expressed great doubts about universal injunctions, and yet didn’t even write a concurring or a separate dissenting opinion explaining that, but just joined in this very harsh dissenting opinion of Sotomayor.  She didn’t join in Jackson’s. And so I do think that’s an interesting question going forward where Justice Kagan is going to be, because I don’t think she’s entirely with the program. That would be my suspicion of the dissenting justices. And we saw just actually the other day, her part from the dissenting justices in a case which effectively slapped down a lower court judge for not following the Supreme Court. And although she didn’t agree with what the Supreme Court had said in the second decision, she  said, “well, no, the lower court has to follow what the Supreme Court, what we’ve said, even if I were in dissent.” And yet Jackson and Sotomayor were again in dissent. And so I think that’s going to be something interesting to play out.

James Patterson (41:59):

That’s a very good point to end on because I’ve thought about that myself, the internal division of what we would consider the more left of Center Justices. Well, Professor McGinnis, I just want to thank you so much for giving us a very comprehensive discussion here. It’s hard for me sometimes to keep up, and I guess we’ll have to talk, if not sooner, at least next year, when the court will no doubt do its thing.

John McGinnis (42:24):

Well, thank you very much. Very much enjoyed talking to you.

James Patterson (42:28):

Thanks for listening to this episode of Law & Liberty Podcast. Be sure to subscribe on Apple, Spotify, or wherever you get your podcasts. And visit us online at www.lawliberty.org.