The Supreme Court's docket is jammed with important cases if you care about individual liberty and limited government, none more so than Masterpiece Cakeshop v. Colorado, which pits religious expression against anti-discrimination laws, Carpenter v. United States, a case with massive implications for warrantless surveillance and tracking, and Christie v. NCAA, which challenges the ability of the federal government to "commandeer" state officials.
In the latest Reason Podcast, Nick Gillespie talks with Senior Editor Damon Root, the author of the widely praised Overruled: The Long War for Control of the U.S. Supreme Court, about significance of these cases and their likely outcomes based on recent oral arguments. Root also analyzes how new Associate Justice Neil Gorsuch is likely to influence the decisions and how Donald Trump's picks for the federal judiciary are shaping up.
Audio production by Ian Keyser.
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This is a rush transcript—check all quotes against the audio for accuracy.
Nick Gillespie: Today we're talking with Damon Root. He is a senior editor at Reason and he is also the author of Overruled: The Long War for Control of the US Supreme Court. And we're going to be talking with Damon today about the Supreme Court. The cases that are in front of it right now. And what is the likelihood that Neil Gorsuch, the newest associate justice is going to change the balance of power or maintain the status quo.
Damon, thanks for talking.
Damon Root: Thank you.
Gillespie: So, what are the biggest and most important cases that you're tracking this season?
Root: Well, I'd say the three biggest that are in front of the court right now, we have the gay marriage wedding cake case, we've got a case called Carpenter v. United States, which is about the Fourth Amendment and the warrantless acquisition of cellphone data by the government. The ability of the government to basically track your whereabouts with historical cellphone data, using records from cell towers and whether or not that's a Fourth Amendment violation.
And then this case out of New Jersey, Christie versus NCAA, which is a 10th Amendment federalism case dealing with a federal law that basically makes it illegal for the states to legalize or in this case partially legalize, sports gambling.
Gillespie: All right. Well, let's let's start with the gay wedding cake, and the baker. Should, as I think it was Austin Petersen the libertarian who is running for the Libertarian nomination, Libertarian Party nomination for president put it, should a Jewish baker have to bake, I guess, a homophobic Jewish baker have to bake a gay Nazi wedding cake? What is going on there? What are the basic facts of the case? And where do you see it going? And we just heard oral arguments about that as well.
Root: The basic dispute is that this baker, his argument is that by being forced to create a custom wedding cake for a same sex marriage, that the government and the state, in this case the state of Colorado, is compelling him to speak. He has sincerely held religious beliefs and disapproves of same sex marriage for these sincerely held religious beliefs and to be compelled to create a custom wedding cake for gay marriage is his compelled speech.
The government is forcing him to speak, he's an artist. He expresses his artistic view for the cake.
Gillespie: Yeah. So is this a freedom of religion? Because obviously, it's all first amendment, but is it really freedom of religion? And I guess now I'm going to say it's like a triple First Amendment case. Is it freedom of association? Is it freedom of religion or is it freedom of speech? And I guess we can break those down into separate categories because there's the idea that the act of baking and decorating and in particular decorating a cake is expressive activity that would be similar to writing a novel or painting a picture. Is it compelling to you or is it a strong case to say, 'Yeah, that's First Amendment activity under kind of free speech that shouldn't be compelled?'
Root: The court has recognized a broad range, historically, of expressive conduct as falling under the speech prong of the First Amendment and then the federal courts, lower than the Supreme Court, recognize things like tattoo artists, so not just getting a tattoo, but the act of creating one and opening a business, a tattoo shop, that falls under the First Amendment. So strippers, erotic, exotic dancers that's expressive conduct that the First Amendment protects.
So we have this this broad category of speech of whether or not th-
Gillespie: Is it possible that the court could say, 'You know what, a tattoo, yeah, that's expressive speech and you can't be forced to … You can't make somebody write something they don't want on your body but maybe a cake is not expressive activity?'
Root: That's going to be part of the final argument, whether or not that's on the that's 5 side of 5-4, assuming it breaks down like that, which I think it probably will. That's going to be part of it. One of the issues is that the arguments that the bakeshop is making, sound a lot like they're calling into question the foundation of a lot of civil rights laws. So if the baker says that, 'By making me make a cake for a same sex marriage, you're compelling me to speak on behalf of gay marriage.'
That sounds a little bit like, well, what about the baker who says, 'I sincerely held religious objection to interracial marriage. And so by compelling me to bake a cake for an interracial marriage or compelling my speech in that case,' and I don't think anyone on the Supreme Court wants to sound like they're whittling away at those kind of public accommodation rulings. And questioning Loving v. Virginia and precedents like that. So, they're going to dodge it.
Gillespie: They're going to try to dodge it. But why? Because isn't that … And I guess we're still talking about speech and there's still the question of freedom of religious activity as well as freedom of assembly or association, which might be more cut and dried. Nobody wants to go back and relitigate the idea that … Because if you say, 'I have a sincerely held religious objection to gay marriage because I'm a Christian, I believe that the Bible says that gays and lesbians are going to hell for whatever reason, so I shouldn't have to do anything with them.'
If we accept that, then we're going to have to accept somebody who says, 'You know what? I … ' And I guess at various points, there were question arguments pushed about segregation and saying, 'I don't want to serve blacks because I don't think blacks and whites should mix because of the Bible or the Koran or whatever.' But nobody wants to take this case and have to work the logic all the way through as it would kind of flesh flush out on anti-discrimination laws.
Root: Yeah, that's right. I think that is probably the hardest, the steepest hurdle for the baker side of this case, is how can you win and still preserve that line of cases. Because if it sounds like you're trying to over do all of those, that's a loser.
Gillespie: Here's a question that I'm sure has come up a lot, but it just popped into my mind. If a Nazi had come into a cake shop and said, 'Hey, I want you to make a swastika shaped cake that said Heil Hitler on it.' If the cake shop owner said, 'Get the fuck out of here.' Nobody would bat twice about that, right? It's the specific speech act here or the content that is bothering people more than that kind of abstract principle that you shouldn't be forced to say something that you don't want.
Root: Well, the lawyer for the federal government who is arguing in support of the cake shop side in this case did raise a hypothetical that was very similar to that moral argument. It was a cake for a Klan rally. I think it was a black baker for Klan rally or something like that. And that gets, I think, into the freedom of association ideas. It's a pluralistic society and this is the baker's arguing this, can't we find a way to accommodate this religious view and allow people to freely associate or not.
Gillespie: I guess then with a kind of freedom of association or freedom of assembly, maybe that's slightly off here, the federal government has a federal anti-discrimination laws and most states do saying that you can't, if you have a shop, if you have a business that's open to the public, you can't start picking and choosing who you will serve based on racial attributes or gender attributes. I guess some states still allow for sexual orientation. It's plainly unclear or it's plainly illegal then or is it that if a gay person comes into your shop, you can say, "Hey, I'm not going to serve you because you're gay."
Root: Well, there is even his question of protected classes, and so race and gender are basically protected, so you can't deny service in a public accommodation setting. And that's one of the background issues that's in this case is elevating sexual orientation and identity into that. Getting it sort of on parity with where race and gender are or close to it. And that is what Colorado is seeking to do.
And so then there's an argument against that, which is that this is … One argument is public accommodation laws are broad enough and don't expand them, and the case take side is making some of those, but then they're also making an argument as, Well, you know, it's wrong to see opponents of same sex marriage in the same light as we see defenders of segregation or something because those people are at least clearly evil, but we all accept that now. But don't put us in that category, just find some sort of way to accommodate us and carve us out of some of this broader anti discrimination statutes.
Gillespie: What is the kind of status quo for allowing religious exemptions, I obviously have a very weak grasp of the constitutional logic on a lot of the stuff, but you can't simply assert, 'This is part of my religion, so you can't compel me to do something.' It's really that if you are going to force somebody to do something that seems to be against the religion, you have to have a really strong case. How does that usually play out in this sort of circumstance?
Root: Well, there's a federal law called the Religious Freedom Restoration Act, that can come into sometimes. And basically that imposes a sort of a two part test on the government if the individual says that the government action is violating my sincerely held religious beliefs. The government regulation has to be basically generally apply to everybody, but also has to be narrowly tailored to this specific instance and what that sort of translates to is if there is a way to achieve the same government goal, has to be a legitimate government purpose at the first step.
But if there's a way to achieve the illegitimate government purpose that's less invasive, that can accommodate this religious objector, then the state has some obligation to try to do that, or at least to show that it tried to find a less invasive way to regulate it since it couldn't, then it had to do it. And that's part of what the cake shop's side is arguing for something like that. Here is that you can accommodate … There's plenty of other places to buy cakes, that sort of argument. So why can't we accommodate this person?
Gillespie: Two questions here; one is, from a kind of strict libertarian perspective, I suppose that the easiest solution here is to say, 'Hey, you know what? No business should have to serve customers it doesn't want to, period. So that's how it should be decided.' That logic is not really in play here and a lot of ways because of existing laws and because the court certainly allow for a lot of infringement on people's personal association rights, particularly in a business setting.
But what do you think about that? Is that a compelling argument on its own? And then how is the court likely to rule on this?
Root: I think those are compelling arguments but they're basically theoretical, sort of a philosophical point to make, I think, because it's really what … Maybe it's lurking in the background of some minds of how justices might vote or something like that, but it's very far from what will really decide concrete cases like this. And it turns out this case might play out the arguments … There was stuff going kind of in either direction. It's one of these cases where the conventional wisdom is in the hands of Anthony Kennedy.
He is basically is the author of all of the Supreme Court's modern gay rights jurisprudence, and he's very sympathetic to ideas of dignity and that if the government is acting in such a way or allowing people to act in such a way that stripping gay Americans of their dignity, then that's a problem and those are equal protection problems. But then on the other hand, Kennedy is pretty hawkish on the first amendment on speech, he made some comments during the oral arguments that suggested that he thought that the state could have done, Colorado could have done a lot more to accommodate this person and maybe even there might have been some anti-Christian sort of bias in the government regulation in the entity and how it went about prosecuting this matter.
Gillespie: So it's a real crapshoot?
Root: I think based on what the arguments had, I think the baker, it seemed a little better for the baker side but that's very narrow and that's hard to say. That's not a confident prediction.
Gillespie: Was this also a case where … Was the baker fined heavily and did he have to go to or the bakeshop have to go to kind of like kind of reeducation classes and things like that? Or was that in a separate cases?
Root: There was a part of the states when the person, and the shop is found to be in violation of this state regulation, part of the what to do with … He didn't have to go to an outside workshop or something like that, but did have to conduct a workshop at the business. I believe the guy who owns the business, because it's a family business, I think it's only family members or mostly that family members who work there.
So he kind of did have to run, not really a workshop, but he did have to basically tell his employees that, 'Here's what the law says and we were not acting compliance with it and we got in trouble for that reason.' That was something the government told him to do.
Gillespie: And here's a final question, which is a very small detail but conceivably an important one. Did he refuse to bake a cake, period, or did he refuse to bake a cake and decorate it the way that the couple that wanted the cake asked?
Root: My understanding, at least the presentation that was made at the Supreme Court is what their position at least now is, is that, if the cake had been baked and was on the shelf and a gay couple came in and wanted to buy a cake off the shelf that was already made and decorated and said whatever, happy wedding or whatever. He would sell that cake. The objection was to baking the new custom cake for the wedding, that that was the compelled speech.
I think they thought that their strongest argument was compelled speech under the First Amendment. And so I think abandoned the idea that they could just refuse any kind of service whatsoever. They said once it's already baked, there is nothing compelled about the speech it exists. So it's made a big deal and a long way. This is really just one more argument for eloping, but if you force me to bake …
Gillespie: In a long way, this is really just one more argument for eloping, it sounds to me. But I doubt that that will factor into anybody's decision. Let's move to the Fourth Amendment case. What are the basic facts of that? And this is fascinating because it's … I don't know if there's such a thing as passive, kind of passive surveillance. But it seems to raise that question of like, we allow ourselves to be tracked because if we're carrying a cell phone with us, it's constantly pinging off of towers without us doing anything, even really making calls. There's a an endless amount of data and records that kind of show more or less where our phone was, at the very least, at any given point of the day.
Root: That's exactly right. So Mr. Carpenter was accused of robbing a bunch of Radio Shacks in the Detroit area and the police get his cell phone records, which is, as you know, it's like his phones is … It 127 days worth of data from the towers and everything. And the phone's pinging around as he's going about his business. And the FBI is able to trace back his whereabouts and put him in proximity to all the robberies he's accused of being part of and that evidence is used against him in court.
This case is Carpenter v. U.S. but just to go back there's a couple of precedents that establish something called the Third Party Doctrine, and that's really kind of what's at issue here. What those say is that the information that you voluntarily share with third parties, such as when you dial someone's phone number in your phone and call them, that you've shared that telephone number of your correspondent with the third party of with telephone company. The email addresses of people you're emailing, you've voluntarily shared that information with your Internet service provider or whatever.
And so, you have no reasonable expectation of privacy in that information you've shared with third parties. Therefore, if the police want it, they do not need to get a search warrant under the Fourth Amendment. They don't need to do the full rigmarole of probable cause and so forth. This of course is something law enforcement just loves because it's a lot easier. They don't want to go through that Fourth Amendment hurdle, so it makes it a lot easier to get this sort of information.
And then when you look at the case Mr. Carpenter or anybody else, 127 days worth of your cell phone records, t can the police can basically trace your whereabouts. That's the kind of thing that a patrol car following some guy around, first of all, they can't go back in time and do that, but even if they were doing in real time, it's basically would be impossible for the patrolmen to follow the guy around for 127 days and get this complete record of the whereabouts. And this allows that to be the case.
So the issue is, are those Third Party Doctrine precedents, are they really suited for the digital age? Should they be reconsidered? And isn't this exactly the kind of thing that the Fourth Amendment is designed to protect, this kind of total surveillance by the government.
Gillespie: Who are the main players in this in terms of on the Supreme Court, who are the stronger defenders of protections for individual citizens from this kind of police surveillance and who are the people who are kind of like, "No, you know what, this all makes total sense?"
Root: Justice Sotomayor is the best on the Fourth Amendment from a libertarian point of view, I think you can say, and that's been true for a while. And before she achieved that status, I think it was probably Justice Scalia. And when the two of them were on the court together on Fourth Amendment cases, they tended to be the same side. So she really came out swinging against the government lawyer in the oral arguments.
And then the other person who really came out strongly in a pro Fourth Amendment was in the arguments this case was Justice Gorsuch, which apparently that surprised some liberals. I think there was some idiot at , maybe, Slate or someplace like that wrote something that is like that, 'Who would have thought this sort of thing?' And it's like, 'Well, anybody paying attention to his jurisprudence isn't surprised by that.' He had some pretty strong Fourth Amendment opinions on the circuit court.
It's always possible you get on the Supreme Court and do something different, but there was reason to expect something like that might happen, and so he came out pretty strong in that way. And so, that was, I think, for Fourth Amendment advocates, that was kind of refreshing to have someone on the right and the left side of the bench both seeming very critical of what the government is trying to do and worried about the ramifications of that.
Gillespie: Obviously, the obvious question asked about this is why is anybody robbing Radio Shacks of all places. The chain doesn't even exist anymore and you could get substandard electronic equipment virtually anywhere else, why go to Radio Shack? But beyond that is, why wouldn't the police … Wouldn't it have been a rubber stamp to have gone to a judge to say, 'Hey we have a suspicion that this guy was doing this because I'm sure he's a career criminal. I'm sure he's this, I'm sure he's that.'
Would it be that hard for the cops to actually get kind of a rubber stamp search warrant look for these records?
Root: No it would not. The ACLU who is arguing Carpenter side of the case absolutely made that sort of point, is that instances like this the police can get warrants. It's not that difficult. So, get a warrant is a pretty good message to the government to hear from time to time in these sort of cases. And the Supreme Court is, the Fourth Amendment jurisprudence I think is a bit out of whack. And cases like this and some other ones dealing with various warrantless kind of searches and dealing with modern technology have I think, there is some momentum and I think in a positive direction, which is that, 'Get a warrant.' That's not a bad message.
Gillespie: And is this similar to the way I know from previous conversations about this topic, there was a time where telephone calls early on when the telephone became an everyday appliance, there was no expectation or the Supreme Court held that there was no expectation of privacy on a telephone call because it's a party line, the operator's listening, these are public lines etc. and that flipped. Are we going through a phase now where a lot of things that could plausibly maybe at the dawn of certain types of contemporary or modern telecommunications where we might have said, 'Yeah, you know what, there was no expectation of privacy, but now there should be.'
Are we on a hinge point on that or could this case provide that hinge point to start saying, 'You know what, a lot of this stuff that we just assumed didn't provide an expectation of privacy and the cops or the state doesn't need a warrant, they're going to need to firm from now on out.'
Root: I think that's right. The court has said in the Third Party Doctrine case that the content of the letter, the content of phone, that stuff's private but the address–
Gillespie: The metadata.
Root: Yeah, the metadata. But the thing about the metadata is, if my, I don't want to reveal too much personal information here, but if my phone is tracking my whereabouts and I'm at some sort of medical appointment that could be quite embarrassing or something like that or whatever, maybe that's the kind of thing that you might want to have some privacy. Just my internet browsing history, the things I'm buying from Amazon. This can be very sensitive personal information and it starts to sound, when you think about it, it starts to sound like the papers in the fax. And that's precisely what the framers the Fourth Amendment were concerned about.
Gillespie: Where is Clarence Thomas on this. He is a Supreme Court justice. And in your book, Overruled and in other articles you speak highly of Clarence Thomas, even left wing critics of Thomas often talk about him as really almost, maybe not quite alone among contemporary is Supreme Court justices, but certainly one of the strongest, who is trying to build a unified legal theory that kind of systematizes all of his logic, all of us thought.
He sometimes is very libertarian and sometimes is very antigovernment. And in other cases, he is very strong on the police powers of the state. Where is he do you expect on this case? And what do you figure the outcome of this case is going to be?
Root: Thomas is, he can be disappointing on criminal justice issues for sure. He wrote an opinion in a case that in dissent, Justice Scalia wrote the dissent and he called Thomas's opinion a freedom destroying cocktail. This is a case where it was an anonymous tip about a suspected drunk driver, which was just a very vague description of an automobile, the police used that to stop a different automobile and then whatever they find, whatever incriminating things on this base that was totally bogus stop and Thomas writing the majority didn't see a Fourth Amendment problem there.
Scalia, Sotomayor and others in dissent thought this wildly, wildly out of whack with the Fourth Amendment. So I'm not always a fan of what Thomas has to say on some of these Fourth Amendment cases. So I'm not sure where he's going to be on this one, it may not be on the side of the angels, as it were. But he definitely has, among the justices of the court, I think he's very thoughtful, he's a very scholarly in his approach and even when we disagree with him, that he's someone whose ideas are worth taking seriously.
Gillespie: How do you think this one's going to shake out though?
Root: The oral arguments seem to be in Carpenter's favor, it will depend on how the court writes it. And again, this is one of … I should always add the caveat of oral arguments are not always indication of where it's going to go, there are these curve balls. But it went pretty well for Carpenter and not so well for the government. So we'll have to see. But I think that there is at least a chance that it's a ruling that's more pro Fourth Amendment than not, but we'll see.
Gillespie: I really just hope … What do you expect when you rob RadioShacks and you take a bunch of … Like he took GPSes or something like he was asking himself …
Root: Allegedly stealing cell phones.
Gillespie: I just hope he didn't turn them on.
Root: One thing to remember is that a lot of these cases are landmark cases that the parties to them especially in criminal justice they're not sympathetic people. Usually, it's the issues that the case raises. Same thing with ACLU defending Nazis, Nazis marching in Skokie or something. It's about the principle not about the person who may be involved in it. Some of these plaintiffs are like really wonderful and like Otis McDonald in McDonald v. Chicago, get that guy in front of a camera, he's great. But then, some of this people, maybe Mr. Carpenter should stay away from the cameras.
Gillespie: Yeah. That's let's hope so. Now, we come to another person who nobody wants to claim as being on their side, although I like what he's doing here. Chris Christie, the governor of New Jersey is challenging a federal ban on sports wagering. As the governor of New Jersey, New Jersey was the first state outside of Nevada way back in, I guess the late 70s early 80s, to legalize casino gambling. Christie by all accounts is one of the most hated people in America.
He's one of the most hated people in New Jersey, which is not a state that you want to be hated in, because they're really good haters there, as I know from growing up there. What are the stakes of this case and how do you think it's going to shake out?
Root: The Professional and Amateur Sports Protection Act of 1992, makes it illegal for a government entity to authorize, legalize, license etc. sports gambling schemes. This law regulates the states, it doesn't regulate individuals. So, it's not a federal ban. There's components of federal law that tell individuals, "You can't gamble on sports, that's illegal under federal law." But this is why it tells the states they can't do it.
What New Jersey did to kind of get around the law was, it lifted its existing bans. So, what New Jersey said is, "Well, we're not authorizing it, we're just repealing the bans that are on the books." So the NCAA, the NBA, the NFL.
Gillespie: Can I ask though, what does that mean though, does that mean that an individual casino or gambling establishment in New Jersey could say, 'Hey, we're going to do sports betting now.'? Is there sports betting in say, Las Vegas or other jurisdictions within the US, is there legal sports betting?
Root: There is. This bet law I referred to contain some exemptions, Las Vegas, Nevada was one. And I think there are three states where there's sort of a lottery systems that are sports betting. But basically, this law comes about in 1992, because there was a lot of talk and New Jersey was one of the places talking about it and other states were talking about legalizing sports betting as a way to bring in some revenue. And Congress wanted to stop the scourge of it, so passed this law but exempted Las Vegas in particular.
What New Jersey did was, the bans that existed on state law had been on the books for some time, banning sports betting at racetracks and casinos. Those were lifted, so that it can happen at those places. What the argument on the other side is, well, that clearly violates this law, by lifting a ban you're still authorizing it. The big constitutional issue is the 10th Amendment and something called the Anti-Commandeering Doctrine.
Basically, what that says and the big case on this is from Justice Scalia in the 90s, is that the federal government cannot commandeer state officials and dragoon them into enforcing federal regulatory schemes. Congress can regulate people, but it can't regulate the states directly or can't order the states. In this case, Congress is ordering the state of New Jersey, its legislature, to keep on the books, a law that the New Jersey legislature wants to take off the books and then that commandeer it.
It's sort of stipulated by everybody in this case, that if Congress just wants to ban sports betting nationwide, it can do that. But what it can't do, is tell New Jersey that it cannot lift its own ban. So, there's ramifications for medical marijuana, and for a lot of issues what states are legalizing and want to legalize, and then Congress does not. Sports betting is what this is about, but then, it gets into those other questions of federalism also.
Gillespie: So, what, and I hate to make this joke, but what the hell. What are the odds on this case that New Jersey wins?
Root: You can imagine this case, bet on federalism, don't bet on federalism. There's a lot of bad jokes, then of course, is the case with Tom earlier, where the government get its cake and eats it too. There are pretty some bad jokes in the last two weeks, so we should make plenty here too. I thought it looked pretty good for New Jersey, the way the arguments went. They have a strong federalism case. The government side is that, 'Well, this is basically just regulating interstate commerce and Congress can do that also, in two ways, and it can preempt state law.' And there is a long history of the court allowing Congress to kind of run wild, when it comes to interstate commerce.
Gillespie: There's a very low hurdle or burden that the state has to show that federal government, to show when regulating interstate commerce. Because part of this is like, 'If we have sports betting, all sports will be immediately rendered suspect, it will destroy the conscience of America, we'll lose our innocence or something.' Even though betting odds are published in every newspaper in the country, countries like England obviously, have a robust sports betting industry and things like that.
Essentially, under the commerce clause jurisprudence, the government really doesn't have to do anything other than say, 'Hey, we're invoking the commerce clause in order to do whatever we want.'
Root: When the Supreme Court has said that activity that happens exclusively within a state, economic activity that never crosses state borders. I grow a plant in my backyard and then consume it in my house, because it has a 'substantial impact' in the interstate commerce, that can be regulated under the interstate commerce clause. So, yes, if the court looks at this is basically just a regulation of interstate commerce, don't bet on New Jersey, but if the court looks at it as a question of the federal government commandeering state officials, then it's a 10th Amendment matter and then New Jersey is in much better shape.
Gillespie: And do you think then would Congress actually go back and just write a different law saying, 'Hey, we prohibit betting on sports.'
Root: That is a possibility of New Jersey strategy. I think they're counting on Congress being ineffective, I guess.
Gillespie: How was John Conyers or Al Franken, are they big sports betters, because maybe we want them to stick around for a couple more weeks or something. Well, let me ask you this, two other topics. One is Neil Gorsuch, you mentioned him briefly and that he came out in a feisty mode that surprised some idiots, I believe was the phrase that you used, who clearly legal observers who were not familiar with his published record or his professional career.
But, how is Gorsuch likely to change the way that the court functions? Is he a reliable replacement for Scalia? Is he quirky? Is it unlikely that he's going to change that 5-4 decisions before him, will be 5-4 decisions after him, things like that?
Root: Well, one area of the law where Gorsuch is different from Scalia, is the questions of administrative law, and how much deference to the courts owe to regulatory agencies, executive branch regulatory agencies. Scalia was pretty deferential and wrote some opinions that were very … People who are critics of the administrative state right now, Scalia is the author of some opinions that are big problems, and Gorsuch is very much a critic of that kind of deference. The Chevron doctrine, the Oral Doctrine.
These things where the courts have said is if there is, 'ambiguity in a federal statute or ambiguity even in administrative agencies or rule', the courts should defer to the interpretation of those laws or rules favored by the agency charged with enforcing them, which is a little bit like letting the fox guard to the henhouse. And seems like kind of an application against the rule.
Gillespie: To mix the cases that we've been talking about, would be like letting Christie guard the bakery.
Root: Yeah, that's right.
Gillespie: So, in that sense, when it comes to administrative law, which seems to be the only kind of law that is really being made on a regular basis, for much of the 21st century, it sounds like Gorsuch from a libertarian perspective or the idea of constraining the ability of the state to act however it wants, he's good then, right?
Root: Yeah. I think that's a fair way to put it. He has written, I think, pretty persuasively that in addition to, this is a little too much judicial deference to the executive branch when the court's job is actually to scrutinize what the government is doing, not just sort of defer to the government's own rationale for it. He's written but also, he's pointed out that, when executive branch agencies, these are unelected government bureaucrats, they're not lawmakers, I guess most importantly.
When they're making law, that raises, there is some due process issues there, there's a fair notice, if the IRS or some immigration agency under the executive branch is basically creating rules that are being enforced on the citizens and this didn't go through any kind of normal lawmaking process, how could the citizen even be expected to know about this? So that's a fair notice problem, that's potentially due process problem.
So, he's written pretty strongly about that, and in terms of those of us who are concerned that the administrative agencies are wielding too much power and that they're, I would suggest a separation of powers problem there, because that's Article II. That's under the president, but the lawmaking power, that's Article I under Congress. And so, perhaps there's been too much lawmaking power delegated to some of those agencies. Gorsuch and Justice Thomas, the two of them are both I think very strong critics of that drift. And depending on if the right case comes before the court, I think that you could see those two anchoring a position that would be quite critical of that draft.
Gillespie: More generally, how has president Donald Trump stacking the judiciary is he … And there's a lot of discussion about how many vacancies were left by president Obama and how many vacancies Donald Trump is going to get to fill. He does not seem to be a systematic thinker in any way. A lot of conservatives, and a lot of libertarians who are otherwise critical of Donald Trump have said what his judiciary picks have been pretty good. You've written positively about people like Don Willett, a justice or a judge who is appointed by Trump.
How are you feeling about that? Is there a consistent cast to the people that Trump is appointing and is it good or bad?
Root: I think that what these picks show is that, when Trump finds the right subcontractor, a nice building can be built. I think that the team that people from the Federalist Society, Heritage Foundation, they sort of brain trust that he's got, I don't want to say outsource this, but I think it's pretty clear that they were from people who go-
Gillespie: That makes sense, he's not a lawyer and even if he were, you can't expect the president to be handpicking everybody. So, there's really no shame in delegating that, right?
Root: I think that a group of smart people are advising him, people that are very ensconced in the conservative legal movement and these picks represent that. I think that overall they are very good. These are well credentialed, well respected, impressive, conservative state and federal judges, some law professors in the mix. And the kind of appointees any Republican president … any Republican administration could probably put forward and have.
A lot of us, when Trump was a candidate, there was a concern that this guy got to start putting one of his divorce lawyers forward or something, and I know Federalist Society lawyers who said things like that, not just in private. And so, I think Trump has proven those critics wrong, so he deserves credit for listening to good advice on this. And that's not to say that I agree with the ideas and ideology of all of these judges, I'm just making the point that I think that they're qualified and impressive.
And what's interesting also is that, some of them are really at odds with each other on certain issues, and some of them are at odds with the Trump administration, so when Trump's picks the Fifth Circuit, James Ho has written very persuasively in favor of birthright citizenship, arguing that birthright citizenship is protected by the 14th Amendment. And of course, that's something that Donald Trump campaigned against. I think in the Trump administration, division is probably the best on constitutional. It's interesting to see some of these differences.
Gillespie: Well, I was going to say, as a general thing, is there kind of a zeitgeist in judicial rulings where, and I'm struggling to come up with a metaphor that kind of conveys what I'm trying to ask, like the way, I don't know. All late 60s music on some level all seems to be kind of like hippie and psychedelic, where even though the Rollings Stones and the Beatles might have hated each other, but they were kind of like a little bit of distance from it, you realize there are other peas in a pod. Does something like that happen with the legal community, where even though at any given time people are bitter enemies, but in fact, there is a general character to a particular legal moment? And are we in one like that, and what would it be?
Root: Well, for conservative, and the conservative side of it, we're in one, in that everyone is an originalist or claims fidelity to originalism. And I think that fidelity or the claims fidelity is giving a lot of cover to some conservative judges, who are actually pretty lousy originalists. And I'd like to see a little less Kumbaya around originalism and a little more challenging among people on the right on that issue. But I do think that's probably the biggest story in terms of the legal world, that originalism …
That was something that on the right, 20, 25 years ago, that was not the test, that was not the benchmark. There were people who were pushing for that, whereas now that's the benchmark. And so, now the real debates are among originalists and competing originalists.
Gillespie: I remember talking to Randy Barnett at one point, a law professor at Georgetown who is highly regarded libertarian legal scholar, and he was saying, when he was in law school, like a lot of times judges or in rulings, you wouldn't even refer to the text of the law because it didn't seem to be important, which is kind of mind numbing to think about, because at least now and like you said, it can be phony but at least people are making the gesture towards, 'These are the words that are in the law and this is what they meant at the time things were being passed.'
Root: And to be clear I think the rise of originalism has meant a good thing to the law, generally speaking. It can be done better or worse, and it's not always pourpoint the clearest way in every case, but I think generally speaking, it's sort of been a good thing.
Gillespie: Well, what I was going to say is, in Overruled, your book about the long battle for the Supreme Court for kind of control, you talk a lot about how really, what should be the case or from a libertarian point of view is that, the court should be activist. And I know that sometimes you bristle at their term, but that it should be defending limited government in everything no matter what, and that's the kind of basic pretext of all laws in America. Do you feel like that point of view or that general sensibility at least, is very much in play or does it still have a long way to go?
Root: Well, one of the things I was interested in doing in the book, was showing how this idea of judicial activism and judicial restraint in these two kind of competing ideas, how that there is this ongoing clash, and that sometimes the activists are on the right, sometimes are on the left, sometimes they will strike people on the right, sometimes on the left, and you can see this sort of play out over a very long view. And so, I was interested in how that argument about those decisions had played out in the history of the court and tried to sort of trace it.
One of the things that we've seen just to stay on the conservatives is that, 30 years ago, when the late Robert Bork was the titan of legal conservatism, his big thing was judicial restraint and judicial deference. And he would say things like, 'In white areas of life, majorities are entitled to rule if they wish, simply because they were majorities.' He said, 'Majoritarianism was the first principle with the American system and then individual rights was second.'
And what that meant for the courts was that, the courts really should be deferring to lawmakers because the courts are the least democratic branch of government. Lawmakers and the president, those are the democratic branches. They were accountable to the people, they are accountable to majoritarian pressures. We should be deferring to their wisdom and judgment. And that was really the kind of the conservative line and still very much is a line legal conservatives take.
But then the challenge that started about 30 years ago to that, on the right, from libertarian legal thinkers was, wait a minute, the Constitution is actually a liberty document, it imposes all these restrictions on the government, it protects all of these individual rights. And there is these parts of it that talk about unenumerated rights, the conservatives don't want to hear about that, but those are there. They're in 14th Amendment, they're in the Ninth Amendment, how courts deal with that.
And one of the things that in my view, has been a positive development is that, what I'm calling a more libertarian view, has really gained a lot of ground in conservative legal circles. And so, to go back to Trump's picks, Don Willett who's up for a seat on the 5th Circuit, on these questions you can categorize him as a libertarian or libertarian minded. This is a guy who cites in his opinions, crazy libertarians like me and my book, and like David Bernstein, who wrote this book Rehabilitating Lochner.
This is a guy who is drawing from arguments that are coming out of this sort of crazy libertarian world about what the proper role of courts is, what the meaning of the 14th Amendment is, properly understood. And Willett is throwing some shade in Bork's direction in those opinions and things like that. I think that within the conservative legal world, the importance that this idea of judicial restraint deference had, it's still there, but it's now being balanced, and I think in a good way by, and originalism is part of this too, it's just a point of like, 'Wait a minute, if you say you're an originalist, you take the Constitution seriously. The 14th Amendment says,"'No state shall breach the privileges or immunities of US citizens."'
And we have a lot of historical road maps that tell us that the privileges or immunities of US citizens included the right to earn a living, the right to economic liberty. That's there, John Bingham who drafted the section one of the 14th Amendment, he said that on the floor of the House of Representatives and so on and so forth. And so then you start to get like judicial deference doesn't work in those cases, if you're taking the original meaning of these provisions seriously.
And I think a libertarian interest in seeing the courts act as a check on government overreach, has fueled some of that, which is to mean at least that's a healthy development.
Gillespie: Well, and hopefully Donald Trump who is clearly not troubled by too much familiarity with history in general, much less constitutional history. And is very much in a kind of like the 'L'etat c'est moi.' Maybe it'll be great if he ends up stacking a judiciary that is all about restraining the ability of government to act however it wants. Thank you so much for this preview of three really important cases, how Neil Gorsuch is likely to play out, and how the judiciary is being shaped under Donald Trump. Thank you, Damon Root.
Root: Thank you.
Gillespie: We have been talking with Damon Root. He is a Reason senior editor and he's also the author of a must read book Overruled: The Long War for Control of the US Supreme Court. You can pick it up at Amazon and a Kindle edition, as well as hardcover paperback. I don't know when the graphic novel is coming out, but hopefully it'll be sooner rather than later. Damon, again, thanks for talking. This has been the Reason podcast, I'm Nick Gillespie thanks for listening. Please subscribe to us on iTunes and rate and review us while you're there.