The courtroom of the U.S. Supreme Court  is seen September 30, 2016 in Washington, DC.

The courtroom of the U.S. Supreme Court is seen September 30, 2016 in Washington, DC.

The Supreme Court begins a new term this week with still, only eight justices on the bench. Last March President Obama nominated Judge Merrick Garland to fill the vacancy following the death of Justice Antonin Scalia. But the Senate has, so far, declined to schedule a vote on Garland’s nomination. The justices have chosen to hear fewer cases this term, and, some say, seem to pushing off some of the more controversial issues. Yesterday the Court decided not to reconsider President Obama’s immigration ruling that would spare millions from deportation: Join us to talk about what’s ahead for the Supreme Court and how the stakes will change after the election.


  • Stuart Taylor Author, journalist and contributing editor of National Journal; co-author of "Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It"
  • Elizabeth Wydra President,Constitutional Accountability Center
  • Frederick Liu Attorney, Hogan Lovells former law clerk to Chief Justice John G. Roberts, Jr
  • Jeffrey Rosen President and CEO, The National Constitution Center; author of "Louis D. Brandeis: American Prophet"


  • 10:06:53

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. The Supreme Court begins a new term this week. The docket includes cases related to racial discrimination, immigration and religion. But the big issue hanging over the court is the yet unfilled vacancy following the death of Antonin Scalia last February, a key issue to be addressed by our next president.

  • 10:07:20

    MS. DIANE REHMHere to talk about some of the cases before the court this term and the court's future, Stuart Taylor, contributing editor to The National Journal, Elizabeth Wydra of the Constitution Accountability Center, Frederick Liu, an attorney in private practice and Jeffrey Rosen of the National Constitution Center. We do invite you, as always, to join us. By phone, you can call us on 800-433-8850.

  • 10:07:54

    MS. DIANE REHMSend an email to Follow us on Facebook or Twitter. Well, welcome to all of you.

  • 10:08:04

    MR. STUART TAYLORWonderful to be here.

  • 10:08:05

    MR. FREDERICK LIUThank you.

  • 10:08:06

    MS. ELIZABETH WYDRAGreat to be with you.

  • 10:08:07

    MR. JEFFREY ROSENGreat to be here.

  • 10:08:07

    REHMThank you. Jeffrey Rosen, the term opens with the justices deciding not to take some cases, among them President Obama's immigration case. That must have been quite a disappointment.

  • 10:08:27

    ROSENWell, it's consistent with a cautious court that is just reluctant to take high profile cases because they're not sure of what the result will be until after the election. We saw the same thing with their most controversial religion case where they're going to decide the fate of these amendments that prohibits schools from receiving public benefits, but they haven't schedule for oral argument because they seem to be waiting for a new justice.

  • 10:08:54

    ROSENNevertheless, there are a series of dramatic cases that the court's going to hear tomorrow, which is its first day of the term. It's usually the first Monday in October, but out of respect for the Jewish holidays they've waited till Wednesday. And many of the cases will involve race. There's a case about whether expert witness who a lawyer put on and who said something racially charged about the predisposition of African Americans to commit crime, whether that should taint the entire verdict.

  • 10:09:21

    ROSENAnd also, whether a juror who expressed racially discriminatory statements inside the jury deliberations should be able to be second-guessed. In light of Justice Sonya Sotomayor's very powerful dissenting opinion in the case involving criminal procedure and race last term where she quoted Ta-nehisi Coates and really sort of called out the Black Lives Matter movement, the question of what this court is going to do about race and criminal procedure, redistricting where they've agreed to take several cases and other racially charged cases is going to be very interesting to watch.

  • 10:09:54

    REHMAnd Fred, even closer to home, the case about the Redskins name?

  • 10:10:00

    LIUWell, that's right. The court actually declined to hear the case involving the Redskins directly. But the court did agree to hear a case called Lee versus Tam, which raises the same issue. This is a case where a rock band wanted to go by the name The Slants and register a trademark in that name. But the government said that they couldn't do so because that registration disparaged people of Asian descent. And the issue there is a First Amendment claim about whether that refusal to register that trademark violates The Slants' right to free speech.

  • 10:10:41

    REHMAnd Stuart Taylor, give us an idea of some of the cases the court will be looking at.

  • 10:10:48

    TAYLORWell, Jeff alluded to them very generally, but tomorrow, they're going to hear argument in a case called Buck versus Davis, which he mentioned. And that case involved a murderer who was sentenced to death and his lawyer, for some reason that's hard to imagine, told the jury in testimony -- had an expert witness tell the jury in testimony that black people like this defendant, because of statistics, that they're more dangerous than other people in terms of violence, you know, which is a very -- a shocking thing to be said in a trial.

  • 10:11:21

    TAYLORAnd the issue in the court, part of it, is, well, it was his lawyer and his, you know, his new lawyer is saying, you know, this was clearly ineffective assistance of counsel.

  • 10:11:32

    REHMWhat is the name of the defendant in that case? We've gotten a lot of tweets about that. Elizabeth?

  • 10:11:41

    WYDRAYeah, the case is -- the defendant was Duane Buck and he's coming before the court pointing out I think what is going on in a lot of the public conversation about stereotyping of African American men as dangerous or violent, you know, sparked by a lot of these recent police shootings of unarmed African Americans. The nation is talking about this and the Duane Buck case brings that conversation directly to the Supreme Court in a very powerful way because the question is whether, you know, we have this constitutional right to have counsel.

  • 10:12:15

    WYDRAAnd, you know, in a death penalty case, the counsel's incredibly important. So the question is whether his lawyer, by putting on this so-called expert, who correlated race with dangerousness, is constitutionally ineffective assistance of counsel. And I think that this is one of those cases where, to be honest, every justice should find that he should be able to make that argument that his lawyer was ineffective for putting this on. So it could be one of those rare cases where in an eight-justice court we have consensus, but the Robert's court, particularly the chief justice himself, has not been inclined to recognized systemic racism whether it's in voting or in the affirmative actions cases or in criminal justice cases.

  • 10:12:57

    WYDRASo I think it'll be interesting to see how he rules in this case.

  • 10:13:00


  • 10:13:00

    TAYLORYes. I agree with that. I think there are two things wrapped together in this case that shouldn't be confused. One is whether there was any part -- any reason for the defense lawyer or any lawyer in a capital sentencing case to start talking about the propensities of various races to commit crimes. The other is whether the crime statistics, the undisputed crime statistics show that, in fact, there's a reason why there's more police violence against African Americans, which is African Americans disproportionately commit violent crimes. But those are two subjects that shouldn't have gotten crossed up in the same case, I think.

  • 10:13:40

    REHMThere's a case about insider trading, Jeffrey Rosen.

  • 10:13:45

    ROSENThere is. And I will describe it in a second. I just wanted to add to Stuart and Elizabeth's excellent comments that it's interesting to contrast the Buck case with the other case the court is hearing tomorrow, Pena-Rodriguez in Colorado. There, inside the jury deliberations, two jurors told the defense counsel that another juror who was actually a former police officer expressed racial bias against Pena-Rodriguez. And the basic question is, generally jury deliberations are completely separate. We don't allow that secrecy to be pierced. Is it possible to find out about racial bias in other ways without piercing the secrecy of jury deliberations?

  • 10:14:22

    ROSENThe insider trading case is one that I am looking for right now and if someone else finds it before I do, they can jump right in. But here it is. It's Salmon versus United States. This is the excellent National Constitution Center constitutional prep team has me ready to go in every respect. And this is a case that involves what kind of benefits you need to get a quid pro quo arrangement. It's actually incredibly interesting, as things go. There was a case from 1983 that said that if you get an insider trading tip, you need proof of a quid pro quo arrangement between the information and the person trading on it, like a monetary benefit.

  • 10:15:00

    ROSENBut then, in 2014, there was a case called United States and Newman, which basically said that it was enough -- it wasn't enough just to be friends or to hope that people would think well of you. You actually had to get a pecuniary benefit. This kind of -- remember, we discussed last year the McDonald case involving Governor McDonald and the court...

  • 10:15:19


  • 10:15:19

    ROSEN...tightened the standards for what kind of benefit you had to receive in exchange for gifts. So there's a split. The Boston appellate court says -- they upheld the benefit of a guy who tipped off golfing buddies and said the benefits were just he hoped he'd get nice wines and free dinners and things like that and they would generally think well of him. Adam Liptak wonderfully described this as the Caddyshack element of insider trading where it benefits your information to get the information.

  • 10:15:45

    ROSENSo basically, the court's going to decide, as the Georgetown law review has said, whether a majority is willing to give the government broader latitude to prosecute insider trading or narrow the scope of liability.

  • 10:15:55

    REHMFred, do you want to add?

  • 10:15:57

    LIUAnd this is an issue where I think the absence of Justice Scalia could make a difference. He was a justice who was opposed to broad readings of 10B5, which is the law that prohibits insider trading. And his absence could result in a 4-4 divide in this case.

  • 10:16:19

    TAYLORI think that, you know, the classic insider trading case is somebody who knows about a planned merger or something like, whispers it to a friend or...

  • 10:16:27

    REHMSure, sure.

  • 10:16:27 a business acquaintance who is going to give him something back. And then, you can get down the road to, well, in this case, it's the brother-in-law talking to a brother. And if you go down the road, it could be, well, my second cousin heard from his golfing buddy who heard from his tennis buddy who heard from a guy at Goldman Sachs that something's going to happen. And somewhere down that line, you just think, well, this is just becoming a rumor. But -- and part of the question in this case is where does that line get drawn between unlawful insider trading and a rumor.

  • 10:17:02

    REHMSo Elizabeth, there's another case regarding redistricting, cases from North Carolina and Virginia.

  • 10:17:12

    WYDRAYes. So the Supreme Court has recently been taking on the question of racial gerrymandering in the drawing of district lines. And there was a case last term that dealt with this and the Supreme Court said that you can't just have a mechanical formula when you're putting together districts based on race because the issue is that the Voting Rights Acts says that you can't dilute the ability of minority voters to elect the candidate of their choice. And so what we've seen in some Republican-controlled legislatures -- and these cases, this term, come out of North Carolina and Virginia, there has been what the claimants say is packing of minority voters into single districts.

  • 10:17:52

    WYDRASo while it's true that they can elect the candidate of their choice in that one, it dilutes their power to elect candidates in other districts.

  • 10:17:58

    REHMElizabeth Wydra, she's president of the Constitutional Accountability Center. Short break here, we'll be right back.

  • 10:20:02

    REHMAnd welcome back to a discussion as the Supreme Court enters its new term. Here in the studio, Elizabeth Wydra, president of the Constitutional Accountability Center. Frederick Lieu, he's an attorney with Hogan Lovells, he formerly served as a law clerk to Chief Justice John Roberts. Jeffrey Rosen is president and CEO of The National Constitutional Center. He is the Author of the "Louis D. Brandeis: American Prophet." Stuart Taylor is an author and journalist and contributing editor to the National Journal.

  • 10:20:54

    REHMThe Supreme Court is hearing only 31 cases this term. That's about half of what they normally hear. One of the cases, Jeffrey Rosen, involves church-state separation. Tell us about that one.

  • 10:21:12

    ROSENWell, I love this, because it involves the constitutionality of the so-called Blaine Amendments. And we can all remember them from the presidential slogan for the candidate Blaine -- Blaine, Blaine, James G. Blaine, that continental liar from the state of Maine. That was what his opponents called him in the presidential campaign. Who can forget?

  • 10:21:30

    ROSENAnd that's why, listeners, whenever you need to know what a Blaine Amendment is, remember that jingle. And then you'll remember that the Blaine Amendments were passed by a bunch of states after the presidential campaign of 1876. Blaine was courting anti-Catholic voters and wanted a federal constitutional amendment that would have said, no money raised by taxation in any state for the support of public schools shall ever be under the control of any religious sect. It was a separationist amendment but it was based by this anti-Catholic animist. The federal amendment failed but about 35 states adopted these mini-Blaine Amendments which remain on the books.

  • 10:22:04

    ROSENSo the question here is whether this Blaine Amendment in Missouri bans schools in Missouri from receiving a benefit, namely rubberized material for school playgrounds, which all of our kids rely on to avoid skinning their knees, that are available to non-sectarian institutions. And because the constitution bars parochial schools from getting any public benefits, the schools can't get the rubber mats. And right before Justice Scalia's death, the court accepted this case. The court in recent years has said that states can relax these Blaine Amendment provisions if they provide neutral aid to religious institutions. And the question here is whether there should be an exception to the mat ban.

  • 10:22:45


  • 10:22:46

    WYDRAYeah, you know, and I think not only is that case coming up, but there is a potential case that the court hasn't accepted yet. But the court will put several -- you know, probably a couple, maybe double the amount that's currently on the docket already -- will add 30 or 40 more cases most likely. That's generally what they do. And one of the cases that they could add is also a religious case, and that has to do with a cake baker who is claiming that their cake shot doesn't need to bake a cake for a gay couple that is enjoying their right to marriage equality declared by the Supreme Court just a couple terms ago. So that case is coming up the pipe, which I think is really interesting.

  • 10:23:25

    REHMFred Liu.

  • 10:23:27

    LIUThat -- Elizabeth is exactly right. That case has to do with Colorado's public accommodations law. And it's been interpreted by the Colorado courts to compel this cake baker to create a cake that honors this same-sex couple. And the cake baker says that he has sincerely-held religious beliefs about marriage and that the state forcing him to make this cake violates his rights under the First Amendment, particularly free speech and free exercise of religion.

  • 10:24:00

    REHMAnd beneath all this lies the absence of that ninth justice and concerns about how the court might go, whether it will be divided. But here is a really interesting question from Logan. He says, I'm wondering if there's a requirement for the Supreme Court to have X-amount of sitting judges? Let's say, two judges die in a car accident. Is Congress required to take a vote to bring new judges in? Or could they theoretically nullify the Supreme Court by never accepting a nomination to the court? It's certainly happening with Scalia. Why not if other judges pass away? Stuart.

  • 10:24:58

    TAYLORIt's a very good question. And I -- my answer is, I think, if you look at the language of the Constitution and the traditions, Congress never has to -- the Senate, I should say, can -- could always stiff nominees the way they're doing it now. And if you got the Supreme Court shrinking down to five, four, three, you know, if you couldn't have a quorum anymore, then we'd have to see what happens. But, you know, I think political pressures would lead to the court being staffed somehow. There would be compromises between the executive and the Senate to figure it out. But I don't think there's any basis for, let's say, the Supreme Court to say, you know, you must, you know, we'll appoint someone if you don't.

  • 10:25:41

    REHMWhat do you think about that, Fred?

  • 10:25:44

    LIUWell, it's interesting. Because Congress ultimately has the final say over how many justices there are in the first place. So the Congress can decide whether we have a seven-member court, a nine-member court, eleven, et cetera. So I suppose Congress could, by simple inaction, effectively reduce the size of the court. That is within its constitutional power.

  • 10:26:07


  • 10:26:08

    ROSENSo I want listeners to go to the text of the Constitution and, plug alert, the best place to find the text is the incredible new Interactive Constitution App that The National Constitution Center just launched on Constitution Day. And you can find the leading liberal and conservative scholars in America writing about the meaning of every clause of the Constitution, what they agree about and what they disagree about. It's The Interactive Constitution in the app store.

  • 10:26:30

    ROSENBut the language says -- and now I'm reading from my pocket Constitution, also published by The National Constitution Center -- the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may, from time to time, ordain and establish.

  • 10:26:44

    ROSENSo I very much agree that, although Congress has broad discretion to vary the number of justices -- and after the election of 1800 actually reduced the size of the court in order to deny Thomas Jefferson the ability to make any presidential appointments -- there is one argument that if the Congress completely stopped the Supreme Court from functioning in a way that made it impossible for the judicial power of the United States to be vested in one Supreme Court, then it would be violating this constitutional responsibility.

  • 10:27:12

    ROSENNow what counts as a total stopping of the Supreme Court functioning very much varies. Some justices have said for, you know, eight is fine. But if there were one justice, I don't know, maybe you could argue.

  • 10:27:23


  • 10:27:23

    ROSENBut who would decide it, you know? No court would hear a challenge to Congress's refusal to act. And therefore it's probably hard to litigate.

  • 10:27:30

    WYDRAYeah. I'm glad that Jeff brought us to the Constitution. Because I think it is a question of both the text of the Constitution and our constitutional values. And so we have a Supreme Court that is established by the Constitution. And then it says that the president shall nominate any nominees for a vacant seat on the Supreme Court, as well as other federal offices. And the Senate shall give its advice and consent. So the founders created this system where we have a Supreme Court and then the other two branches of government work together to make sure that it can function properly.

  • 10:28:01

    WYDRAAnd so the question is, is the Senate doing its job when it refuses to consider a nominee that was duly appointed by the president? He's the president till the last day of his term. And he followed the Constitution's requirement that he shall nominate someone. And that nominee is before the Senate, it's a record number of days, today is 202. And the Supreme Court, I would argue, can't do its job properly. We've seen several cases in the last term where the court deadlocked and couldn't come to a ruling. In that important immigration case, for example, which the administration was trying to get reheard when there was a ninth justice.

  • 10:28:38

    WYDRABut I think the Supreme Court's denial of that petition for rehearing is a sign that, you know, they don't know when the Senate is finally going to do its job and give a hearing and a vote to Chief Judge Merrick Garland.

  • 10:28:49


  • 10:28:50

    LIUAnd I would just add, I think this is all in the eye of the beholder. I mean some people will look at the state of affairs with this current court and think it's functioning just fine. And they will look at what the Senate is doing and think the Senate is exercising its constitutional prerogatives. So I think it's hard to talk about this issue without revealing one's political party affiliation.

  • 10:29:09


  • 10:29:10

    TAYLORIt's very hard to imagine how, if the Supreme Court were to say, hey, you have to staff us. You know, who does that. Does the president's nominee just become automatically installed? But the president does have the recess appointment power to fill up vacancies for -- until the end of the next term of Congress, something like that. Very temporarily. Now that power has been narrowly construed by the Supreme Court in the last few decisions. And therefore, you could have -- hold argument, when's a recess? When can he do that?

  • 10:29:42

    TAYLORBut the system has ways of adjusting to misbehavior that's causing it not to work well. And I can easily imagine that the solution would be, okay, the president says, I'm going to make a recess appointment and the Supreme Court realizes that this is the only way things are going to go on and they uphold the recess appointment. And then if Congress doesn't confirm the recess appointment, after two years you make another one and another one.

  • 10:30:05

    ROSENEarl Warren, interestingly, was a recess appointment. But I think he went on to be confirmed.

  • 10:30:09

    WYDRAMm-hmm. Exactly.

  • 10:30:10

    REHMInteresting. All right. Here is a question on that very issue from Mansfield, Texas. Aaron, you're on the air.

  • 10:30:21

    AARONYes. And thank you for allowing me on the air. My question is, if (word?) listen to Trump and saying that they didn't have the right to refuse to listen to nominees without any hearing. But because there's a process of (word?) and in -- during that process, they can refuse or accept the nominee. Now because they're not accepting any -- or writing any...

  • 10:30:43

    REHMAll right. Aaron, I am really sorry. I see that what you really wanted to get to was, could any judgment of this eight-justice court be ruled invalid. Unfortunately, your connection is so bad, I can barely understand what you're saying and our guests are baffled as well. How do you respond to that question of could any of the judgments made by this court be ruled invalid, Elizabeth?

  • 10:31:23

    WYDRAWell, I think, you know, that's part of the problem is that the Supreme Court is the highest court in the land. So you don't have an appeal from the Supreme Court. But what could happen is, if there is a ruling that, you know, is only a four-justice majority for, you know, because we don't have a full complement of the judges and there's a plurality, then, you know, a future Supreme Court that is fully staffed, you know, might not give that as strong precedential value as other opinions.

  • 10:31:49

    WYDRAAnd there are these mechanisms for rehearing cases. And one of the cases from last term that did deadlock four-four was a case about public-sector union fees and the ability of public-sector unions to collect fees that really help them succeed and advocate for the American worker. And that case will probably work its way back up to the Supreme Court and get a hearing again with, hopefully, a full complement of Supreme Court justices.

  • 10:32:12

    WYDRABut on that point, I just want to push back a little bit against Fred's assertion that your feeling about a short-staffed Supreme Court reflects your political viewpoints. Because I filed a brief in the public-sector union cases and so the four-four deadlock we won below technically benefited my position. Whereas, I filed a brief in the immigration case and it did not benefit my position because it kept the stay in place that is blocking the DAPA program from going into effect. And in both cases, I would have rather had a fully-staffed Supreme Court. I've been a Supreme Court litigator my entire career. I have great respect for the institution. And I think keeping the seat vacant for so long does damage the integrity of the institution.

  • 10:32:48


  • 10:32:49

    LIUSo you would have preferred a court with Justice Scalia deciding those cases?

  • 10:32:53

    WYDRAI would prefer a court that is able to fulfill its constitutional rule of deciding the important legal questions that come before it.

  • 10:32:59

    LIUI take that as a yes.

  • 10:32:59


  • 10:33:01


  • 10:33:01

    LIUI take that as a yes, that you would have preferred to lose that case then.

  • 10:33:05

    REHMYou would have preferred to lose that case?

  • 10:33:08

    WYDRAWell, I think we would have won because our arguments were so strong. And Scalia actually did have some favorable language that would have benefited us in that case. So...

  • 10:33:15

    REHMI see.

  • 10:33:16

    WYDRAI believe in the integrity of my arguments and the integrity of the (word?) report.

  • 10:33:18

    LIUThat's fair. And I don't know how Justice Scalia would have come out.

  • 10:33:20

    REHMAnd you're listening to "The Diane Rehm Show." Stuart, you wanted to add a comment.

  • 10:33:28

    TAYLORQuick historical context. Since the 1980s, the whole Supreme Court confirmation process has become degraded more and more and more, year after year, decade after decade. And it's been a bipartisan process. I think, for example that if my friend, Merrick Garland weren't being stonewalled by the Republicans -- if there was a Republican president and, you know, and a Republican appointee, he or she would be getting stonewalled by the Democrats. The process has broken down. It's been broken down for several years. And although it's easy to sort of see this as a huge Republican aberration from our traditions, I think it's a logical extension of what both parties have been doing for 30 years.

  • 10:34:10


  • 10:34:10

    ROSENI agree that it's been bipartisan and it's been getting worse and worse. And the question is, what happens after this election? And the good-case scenario is someone wins and a new judge is actually confirmed fast. The scary scenario is, what if things are so degraded that even the new nominees are not -- say, hypothetically, you have a Democratic president and a Republican Senate, might they refuse -- and you have a more liberal nominee nominated than Merrick Garland, could the Senate refuse to confirm, to hold votes? The possibility of a permanently deadlocked court is not beyond the realm of possibility.

  • 10:34:48

    REHMOn the other hand, it has been said that should Hillary Clinton win, she might well -- the Senate might well go ahead and approve Merrick Garland because of fear that she might appoint an even more liberal justice. Stuart.

  • 10:35:10

    TAYLORShe said something last month that I think casts a lot of doubt on Merrick Garland's chances of being confirmed, much as I -- confession of bias -- would like to see him confirmed. She was asked in a radio interview, I think it was, in some kind of an interview, what she would do, whether she would renominate him.

  • 10:35:26

    REHMShe said she wanted her own choice.

  • 10:35:28

    TAYLORWell, she said, I'm going to look at the whole diversity...

  • 10:35:30

    REHMYeah. Right.

  • 10:35:31

    TAYLOR...of America, blah-blah-blah.

  • 10:35:32


  • 10:35:32

    TAYLORIt wasn't exactly a ringing affirmation of support for Merrick Garland.

  • 10:35:35


  • 10:35:36

    TAYLORAnd, you know, although the Republicans, as an ideological matter, would be smart to quickly confirm him after the election -- you know, they're going to like him better than anyone that Hillary Clinton might confirm, assuming she wins. They've locked themselves in. The Senate Republicans have taken this kind of odd position that the next president -- we should hold this for the next president to fill. Well, okay. The next president, on this hypothesis, is Hillary Clinton. So what's your rush?

  • 10:36:05


  • 10:36:06

    LIUAnd I think, on the other hand, I think the Democrats may be locked in, too. Because they have said that Judge Garland is the most qualified person to hold this job. And if you look at his credentials, I think they actually might be right. This is a judge who has served as chief judge of the second-highest court of the land, is well known among legal circles as being a brilliant jurist. And I think it would be hard for Democrats to back away from such an extraordinary pick.

  • 10:36:34


  • 10:36:35

    WYDRAYeah. I think, obviously, Merrick Garland is unquestionably qualified. Many of the Republican Senators themselves have noted his extraordinary record and his reputation for integrity as a judge these many years on the D.C. circuit. But, you know, there are many other well-qualified judges who are out there. And I think Hillary Clinton's statement that she could consider some of these other judges who might be younger, who might be more reflective of the diversity of America, and who some progressives might see as more liberal, does mean that it puts the Republicans in quite a quandary because they have this person before them now whose nomination is pending.

  • 10:37:13

    WYDRAAnd if they're trying to get the most conservative justice that they might find, do they go ahead and confirm Garland in the lame-duck or gamble with President Clinton?

  • 10:37:21

    REHMAnd when we come back, we'll talk a little about who a President Trump might appoint to the Supreme Court. We'll take your calls, your email. Stay with us.

  • 10:40:02

    REHMWelcome back as we talk about some of the cases that the Supreme Court has agreed to take, more of which may come that have not yet been announced, for this current eight-member court. Here's an email from Ron. How will the eight-member court work if the presidential election is contested? Could sure be a mess. Fred?

  • 10:40:37

    LIUAbsolutely, that is a danger that an eight-member court could be deciding something as contentious as the election. You know, the court has ways to avoid the issue, and it doesn't necessarily have to take the case. Of course in the case -- well, in the election maybe it does. But it certainly, I think, it's something where I think people are going to say we'll cross that bridge when we get there.

  • 10:41:03


  • 10:41:04

    WYDRAYeah, that's definitely the doomsday scenario with an eight-justice court.

  • 10:41:08


  • 10:41:08

    WYDRAAnd I think -- if the court was trying to avoid the case, that puts importance on the lower court that the case would be brought to first. And, you know, you can affect that by forum shopping in some ways. Forum shopping is where you try to find a judge who might be more favorable to your side than another. But it really puts the emphasis on our trial courts and our appellate courts who would rule in the first instance.

  • 10:41:30

    REHMOn the other hand, Melissa in St. Louis, Missouri, says the nominee being held up in the Supreme Court is delaying lower court appointments, as well. What's the impact there, Jeffrey?

  • 10:41:46

    ROSENWell, the Senate has been not confirming lower court nominees in the same way that it hasn't been confirming Supreme Court nominees, but I think in the election case, the case would absolutely try to avoid a four-to-four split. It's done that in cases like the contraception mandate case, where it sent it back to the lower courts. It's still sensitive about the effects of Bush v. Gore. So I would find it -- although anything is possible, and Fred is right, it's a danger, I find it hard to believe yet another doomsday, where the court divides four to four on partisan lines.

  • 10:42:17


  • 10:42:17

    TAYLORI think you've got to think of the most logical scenario if you're the Supreme Court. A lot of people said that in 2000, in Bush versus Gore, they should have let the House of Representatives decide, this shouldn't be decided by nine lawyers on a five-four vote. So, you know, the Constitution has a process for the House of Representatives to decide, and I think a lot of Democrats at the time thought that would have been the right move. But guess how that would play out if that's what they did this time, and the Republicans controlled the House of Representatives?

  • 10:42:45

    ROSENYou're right, the last time it was -- if the House and the Senate split, then Gore could have cast a tie-breaking vote for himself in the Senate, and then the punchline was the election was supposed to be decided according to federal law, by the executive of Florida, so Jeb Bush would've picked the president after all.

  • 10:43:01

    TAYLORI think the ultimate scenario played out was that the Treasury Secretary Larry Summers, later fired as president of Harvard, would've become president of the United States through some long process.

  • 10:43:15

    REHMInteresting. Elizabeth, you wanted to bring up the Bank of America versus Miami case, and I gather both you and Fred are on this case.

  • 10:43:27

    WYDRAYes, so Constitutional Accountability Center will be filing this week a brief in support of the City of Miami, which is trying to sue these big banks under the Fair Housing Act for mortgage lending practices that they say were targeted to racial minorities, high-risk loans that resulted in these people not only losing their houses, and they themselves could sue under the Fair Housing Act if they were discriminated against on the basis of race, but the city is also saying that they suffered serious effects from these racially discriminatory, predatory mortgage lending practices in foreclosures, in the detrimental impact on those communities, having to bring in more police and fire services, loss of tax revenues.

  • 10:44:13

    WYDRASo this is a case about the access to courts, the ability to hold corporate wrongdoers accountable in court, and it's interesting that the city is coming in to support these homeowners, who were discriminated against, or they -- I'm sure Fred will say that they were allegedly discriminated against but for these racially discriminatory mortgage lending practices that led in some ways to the 2008 crash and the recession that followed.

  • 10:44:39


  • 10:44:40

    LIUOn the surface it seems like an interesting case about discrimination, whether it occurred. But actually the issue that the court decided to hear is a technical one about who can sue to enforce the act, a topic known as statutory standing. And so the court actually isn't going to decide whether these banks engaged in any wrongdoing. It's going to decide only whether the City of Miami, out of all the people out there, is a proper litigant in this case.

  • 10:45:12

    REHMAnd whose side are you on?

  • 10:45:12

    LIUOh, I should disclose that. I work for a law firm that represents the banks in this case.

  • 10:45:21

    REHMSo from your point of view it would be far better for the judges to decide that Miami has no standing.

  • 10:45:29

    LIUThat's correct, and our view is that that is totally in line with the decision the Supreme Court decided quite recently in the Title VII context, which is another anti-discrimination law. There the Supreme Court, in an eight-to-nothing opinion unanimously held that the category of people who can sue under that act is actually quite limited, and we're simply asking the court to apply that same principle to the Fair Housing Act in this case.

  • 10:45:54

    REHMStuart Taylor?

  • 10:45:57

    TAYLORI can't resist asking Fred, did the banks do anything wrong?

  • 10:46:01

    LIUOf course not, Stuart.

  • 10:46:03

    TAYLORThank you.

  • 10:46:04

    WYDRAI think a lot of people would disagree about that, especially with Wells-Fargo in the news these days.

  • 10:46:08

    REHMAnd Jeffrey?

  • 10:46:10

    ROSENWell including -- we have to bring in Louis Brandeis, who warned of the dangers that banks are taking, risking other people's money. So I think he would've been suspicious in this case.

  • 10:46:20

    REHMDo you want the last word on this, Fred?

  • 10:46:21

    LIUWell, it's going to be a super-interesting case to watch because I think it will -- it will touch on issues like zone of interest and proximate causation that may not be of interest to the broader public but are sort of the bread and butter of what lawyers do every day.

  • 10:46:38

    WYDRAAnd they absolutely should be of interest to the broader public because this is really about, you know, kind of the little guy versus the big guy. And fortunately in this case it's the City of Miami, so they've got a little more heft on their side, but a lot of these access to courts cases, cases that implicate the doctrine of standing, whether you can get into the court or whether the courthouse doors will be closed against you, they really are important for everyday Americans because it's about whether we can get into court, whether we can claim justice, which might be your only option when you're going up against one of these big corporations.

  • 10:47:08

    REHMWouldn't the issue of standing be decided before the court takes a case?

  • 10:47:17

    ROSENYou know, Diane, you are so good. I always wanted to study constitutional law with you because that sort of gets to the heart of the issue.

  • 10:47:22

    REHMAnd I with you.

  • 10:47:22

    ROSENWell, we're going to do it someday.

  • 10:47:24


  • 10:47:26

    ROSENBut standing is a very complicated doctrine, and the line between what a question is on the merits and what the standing question is is hard to decide, and some courts think you have to basically decide the question on the merits before you decide the standing and vice versa. So it's a metaphysical distinction in some ways, which makes your question hard to answer.

  • 10:47:46

    REHMWhere do you come out on this, Stuart?

  • 10:47:46

    TAYLORI don't know the case well enough to have an opinion, so I better just stop before I start -- get myself in trouble.

  • 10:47:53


  • 10:47:54

    ROSENWhat a wise example of judicial restraint.

  • 10:47:56

    REHMOkay, let's go to David in Dallas, Texas, you're on the air.

  • 10:48:02

    DAVIDHi Diane.

  • 10:48:04

    REHMHi there.

  • 10:48:06

    DAVIDYou are a national treasure. I listen to you all the time.

  • 10:48:10

    REHMThank you.

  • 10:48:11

    DAVIDI had a question. I'm a history teacher, and I had a question about presidents. So if we -- if anyone accepts this idea that we can just let the last year of a presidency not count, what's to stop it from becoming two years? Our election cycles are going longer, so why not three years? You know, how far does this go?

  • 10:48:33


  • 10:48:34

    WYDRAYeah, I think that is a very good and depressing question because, you know, part of the reason that I've been so disheartened, I think, seeing the way that the Senate Republicans have reacted to the Garland nomination is because the caller is exactly right, you know, you have the last term of the presidency, he's -- President Obama is still the president throughout the end of his term. You know, he doesn't stop making national security decisions, he doesn't stop being president just because we're in an election season.

  • 10:49:04

    WYDRAAnd the argument that the American people should have their say in who should be the next Supreme Court justice, which some of the Senate Republicans have put forth as a reason to not give Garland a hearing and a vote. Well, the American people had their say when they elected President Obama twice, and under the Constitution he has the duty to nominate a nominee for a vacant Supreme Court seat, which is exactly what's happened, and so that is what the constitutional system, I think, contemplates, and so the fact that there is this simple refusal, even in the -- you know, and we're not talking about a month before the election.

  • 10:49:40

    WYDRAYou know, we were talking -- you know, this was February of earlier this year so nearly a whole year left in the president's term, and that I think is a really dangerous precedent.

  • 10:49:51

    LIUI kind of like to say the -- look at the shoe on the other foot. Hypothetical question, Trump wins the election, nominates someone just like himself to replace Scalia on the Supreme Court. All of the clamor, we've got to fill this seat right away, is going to disappear, and everybody is going to take the opposite side from the position they're taking now.

  • 10:50:12

    ROSENIt is worth asking who Trump would nominate because that might affect people's approach. So Trump recently released a list of new nominees. His first list had been very highly respected -- yes.

  • 10:50:25

    REHMBut before you go there, the fact of the matter is that our caller's hypothetical could prove reality, Fred.

  • 10:50:36

    LIUIt could be a while until we get another nominee. Certainly if even Secretary Clinton is elected, and she wants to nominate someone new, we could go an entire term without a ninth justice. It could be until next October, a year from now, when we actually see a new justice take his or her seat on the bench.

  • 10:50:59

    REHMAnd someone wants to know, could somehow the Senate be sued for not carrying out its obligations?

  • 10:51:10

    LIUIt could, but the Supreme Court would undoubtedly view that that is a political question. That's a technical term that means that when there is a class between two branches of government about their constitutional responsibilities, the court, for reasons of prudence, will refuse to hear the case, leaving it up to the political branches to resolve it.

  • 10:51:26

    REHMAll right, and now talk about Trump.

  • 10:51:30

    ROSENWell, it's very interesting because his first list of nominees was a group of very respected constitutionalist judges approved by conservatives of all stripes. He recently released some new names, which included respected conservative judges like Neil Gorsuch on the 10th Circuit, Margaret Ryan, but also interestingly Senator Mike Lee, who I'm delighted to share has just become a National Constitution Center visiting constitutional scholar, along with Chris Coons of Delaware.

  • 10:51:57

    ROSENSo that list of people are very highly respected constitutionalists. But recently Peter Field, the billionaire who successfully put Gawker out of business, told the press that Trump had assured him that he, Field, would be appointed to the court by Trump.

  • 10:52:13


  • 10:52:14

    ROSENThat just is a wildcard that completely opens up this -- and we need to close on this note, Diane. People have said the election is about the Supreme Court. We've got to talk about how a Trump and Clinton court would look different because people should cast their votes based on whose candidate's constitutional vision best coincides with their own.

  • 10:52:32

    ROSENBut the idea, if Trump appoints, you know, a predictable conservative, we know what we're getting. The idea that he could appoint a billionaire wildcard just completely throws the debate into chaos.

  • 10:52:40


  • 10:52:41

    LIUI think judicial conservatives were looking for some certainty as to who Trump was going to nominate to this pick. And I think as Jeff points out, it's hard to nail Trump down on this, as it is hard to nail him down on a lot of things. And so it really -- really we have no idea who Donald Trump is going to pick.

  • 10:53:04


  • 10:53:04

    TAYLORI think that's right. You know, I heard a rumor that he promised Jeff Rosen.

  • 10:53:11

    ROSENIf appointed, I will not serve.

  • 10:53:13

    TAYLORBut if I can segue just a little bit, you know, when you look at the deadlock, assuming that Hillary Clinton wins, one option we haven't talked about yet is that she tries to find a nominee who is acceptable to both Democrats and Republicans. There is one, actually. His name is Merrick Garland. Will she stick with him?

  • 10:53:31

    REHMAnd you're listening to the Diane Rehm Show. Let's go to Gettysburg, Pennsylvania. Hi Mike, you're on the air.

  • 10:53:41

    MIKEHello. I wanted to mention one other possibility. FDR, in order to pass the New Deal, which the Supreme Court found unconstitutional, packed the court and ran it up to nine justices, and a Democratic Congress confirmed them. The -- a Republican-controlled Congress could just as easily knock it back down to seven or five.

  • 10:54:00


  • 10:54:02

    ROSENFDR tried to pack the court. He didn't succeed in expanding the size of the court. But the caller is absolutely right, and it's wonderful that you're calling from Gettysburg, so historic.

  • 10:54:10

    REHMGettysburg indeed.

  • 10:54:10

    ROSENAbsolutely, which Lincoln vindicated Jefferson's promise, and incidentally listeners should go see the great Gettysburg exhibits there, which are really wonderful. But you're absolutely right that FDR, just through attrition, succeeded in appointing a whole bunch of justices who ended up upholding the New Deal, and you're also right that the court -- that Congress could choose to reduce the size of the court for partisan reasons, just as it did to punish Thomas Jefferson and Lincoln itself.

  • 10:54:35

    LIUBut Congress couldn't do it without the president's signature.

  • 10:54:38


  • 10:54:40

    WYDRAWell, I think that what this really highlights is that the Supreme Court is absolutely at stake in this election, whether your conservative or progressive. The Supreme Court should be an issue that you are thinking about. And I think -- I'm glad that Jeff also invoked Lincoln and Gettysburg, and to me I think the values of the Constitution, particularly those expressed during our second founding after the Civil War of equality, liberty, inclusion, are at stake.

  • 10:55:06

    WYDRAAnd when you go to the ballot box thinking about who you think will appoint justices who will better follow the constitutional values that you hold dear. You know, will we turn against a Constitution that has decried religious tests both for political office, that has written into its text a guarantee of equal citizenship at birth, no matter whether your parents were immigrants yesterday or came over on the Mayflower, will we respect that or turn away from it.

  • 10:55:31

    WYDRAAll of these values are at stake, I think, in this election, and it's incredibly important, especially when you consider that the next president will likely have one or two more nominees, potentially, to the Supreme Court. So we're talking about the future of the Supreme Court at stake in this election.

  • 10:55:47


  • 10:55:47

    TAYLORThat's for sure, and I think to go back to Mr. Trump, anyone who thinks they have a clue what kind of person he would put on the Supreme Court hasn't been paying attention to the number of times he's reversed his position on almost everything he ever said over the last few months.

  • 10:56:05


  • 10:56:05

    LIUI completely agree with that, and I think it gives heartburn to people who may want to vote for him because they want -- they want his Supreme Court picks but who don't -- just simply don't know who he's going to nominate.

  • 10:56:20

    ROSENBut I think it's fair, and Elizabeth has really focused us on the question, a Democratic court changing the Constitution for decades to come, upholding Roe v. Wade, possibly recognizing rights of educational equality in funding, allowing affirmative action, upholding broader voting rights, whereas a conservative court, even despite the uncertainty about Trump, much more likely to restrict congressional power to what some see as its constitutional limits, to uphold property rights, to -- overturning Roe I think is very much on the table.

  • 10:56:52

    ROSENSo just objectively, people should look closely at the constitutional positions of the candidates and cast their votes accordingly.

  • 10:56:58

    REHMAnd people should read that pamphlet, which contains the Constitution, available from the National Constitution Center, of which Jeffrey Rosen is president and CEO. Frederick Liu is an attorney at Hogan Lovells. Elizabeth Wydra is president at the Constitutional Accountability Center. And Stuart Taylor is contributing editor to the National Journal. Thank you all so much.

  • 10:57:35

    ROSENThank you, Diane.

  • 10:57:35

    WYDRAThank you, Diane.

  • 10:57:37

    LIUThank you.

  • 10:57:38

    TAYLORMuch appreciated.

  • 10:57:39

    REHMAnd thanks, all, for listening. I'm Diane Rehm.

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