tv Federalist Society - Legal Precedent CSPAN March 21, 2019 1:04pm-2:37pm EDT
provider. c-spanvision and online, at your unfiltered view of government so you can make up your own mind. announcer: congress is in recess this week. nancy pelosi announced that next week they will vote on an override of president trump's veto of the congressional resolution terminating his declaration on border security. forvote is scheduled tuesday, march 26. you can see it live here on c-span. when the senate this back in session next week, they will continue a debate on judicial nominations. and senate lawmakers will take up a resolution of support to the "green new deal." that's live coverage on c-span2. now, from a recent federalist society conference, we will hear from a former obama white house counsel and a former trump equity white house counsel who is now a federal judge. this is 90 minutes.
>> good afternoon. members inrobably the audience who could recite the fact i'm about to tell you about the judge back to me with greater detail and clarity than i could say them. for those who are in the audience who may not know, the judge was appointed to the d.c. circuit judge december, 2017. he graduated from princeton university and harvard law school where he was an executive editor of the harvard law review. 1992, he served judge edward becker on the third circuit and clarence thomas on the d c circuit, and justice thomas on the supreme court. between 1992 and 2001, he was an associate and partner where he specialized in complex civil litigation. between 2001 and 2009, he served in many senior positions in the
department of justice, including as associate -- acting associate attorney general. from january to december of 2017, he served as deputy assistant to the president and deputy counsel to the president before joining the bench. he argued more than 75 appeals, including three cases in the supreme court, 13 cases in the d.c. circuit judge, and others. by appointment of the chief justice, he served on the advisory committee on appellate -- 2015 to 2017. he's our moderator for today. thank you. [applause] >> thank you very much. we have a very distinguished , so now itlk about
is my turn to do introductions. is the professor of law at the university of notre dame law school. he directs the notre dame program on constitutional structure. posedofessor has poses -- various -- his recent book "settled versus right: a theory of president" makes the case for using --precedent" makes the case for using precedent. for judge alex given in the u.s. court of appeals for the ninth circuit and for justice anthony kennedy at the u.s. supreme court. stephen sachs is a professor of law at duke university law school where he teaches and
writes in the areas of civil law,dure, constitutional anglo-american legal history, and conflicts of loss. he graduated first in his class at harvard and was a rhodes scholar. , he served ashool executive editor of the law journal. he clerked for judge stephen williams through the d.c. -- for judge and 14th chief justice john roberts for the supreme court. he also serves on the advisory committee for appellate tools -- rules. is a litigation partner in the washington office of kirkland and ellis. has significant experience in all three branches of the federal government. in the executive branch, he served as the cheap appellate lawyer in the u.s. attorneys office for the southern district
of new york. as an associate counsel to president clinton and is the last white house counsel to president obama. he served as deputy chief to the house select committee, investigating the iran-contra affair. in the judicial branch, he served as a law clerk to judge james hunter of the u.s. court of appeals for the third circuit. and the chief justice warned berger. warren taught -- berger. richard levin steamed is a shareholder in the law firm of mason you acre -- mason you acre -- yager. practiced law in florida for
over 40 years, both as a solo practitioner and in several major law firms. he is the founding president of the justice major harding court and a former president of the martin county bar association. of tulaneaduate university and tulane university law school. he serves as an adjunct professor of health care law at that law school and as a lecturer at tulane university medical center. our speakers will do initial statements of about 10 minutes each in the order in which i introduced them. without further ado. >> thank you very much, judge. the podium it is. thank you. hi, everybody. thank you for allowing me to be
here with you today and be part of this amazing panel. i'm deeply grateful to be here, because when i flew out of o'hare airport on wednesday, it was 50 below, the windchill. [laughter] flights were being canceled left and right and, recklessly, my gait was ready but the gate agency said all of the fuel lines are frozen. if you want to fuel the plane, we have to stop at nashville. i have a long-standing practice of not getting in a plane until there is fuel in it, but i broke that to be here with you. [laughter] and it worked. we got to nashville, they filled us up, and we are here. own my sincerity when i say i'm happy to be here. [laughter] all the more so, because we will talk about precedent. respectcular, how much in difference is owed to a court prior decision. this is a long-standing debate
and no new phenomenon. it has been with us for a long time. hamilton talked about president -- using precedent in 78. , including continue in the u.s. supreme court. last december, justice kagan talked about a doctrine of humility where we say we are uncomfortable throwing out 170-year-old rules at 30 justices have approved because we think we can do it better. kavanagh describes it as a principle rooted in article three of the constitution with a reference to hamilton. came up last month in a different case with justice kavanagh asking a big question, and one i will get to later, how this decision is clearly wrong and has detrimental effects factoring into the calculus of whether to overrule it.
today, my role is to set the stage for my fellow presenters by presenting the key features of the doctrine and keying up a few questions that could affect the law of precedent in years ahead. that, iutset in doing would like to describe a couple important distinctions. first is a question of which direction president is running. sometimes it works -- precedent is running. sometimes it works locally, and sometimes it works horizontally when it is dealing with its own prior decisions. the rules for this precedent are different. istical precedent unflinching and absolute, whereas horizontal precedent is different. the supreme court always has the power to overrule one of its own decisions. that makes the distinction critical. the second distinction is between presidential strength and presidential scope --
--precedential strength and president -- pre cedential scope. something i always emphasizes that we can't think of strength or scope independently or individually. we need to think about them together in understanding the law of precedential. two more, one distinction involves the type of case at issue. for constitutional cases, the u.s. supreme court says precedential is weak and in statutory cases, the courts is the strength of precedential is much greater. there are a few justifications for this distinction. frankly, i'm not sure be distinction holds up.
the underlying justifications for deferring to precedential look the same in the constitutional and statutory concept. as a matter of positive law, the distinction between statute -- statutory and constitutional law remains. i've made reference to the u.s. supreme court, and that's will be my focal point because if the court i know the most about. each state has its own rules of precedential even though there is often overlap with considerations and factors. with these distinctions in place, let me turn the potential reasons to deferring the president. there is -- precedent. we've heard from justice kagan. there's efficiency in litigation and in judicial decision-making. last but not least, there is the idea that the court is more than
the sum of its parts and respect for precedent allows the court to make sure the principles that apply are personal and enduring. to me, is the most resident in the u.s. supreme court's discussion. in putting these ideas into practice, the supreme court said departing from precedent requires justification above and the lond -- above and beyond the decision being wrong. that's might mean a factual mistake or a precedent is unworkable as a procedural matter. the precedent might be an outlier on unrelated issues. can supplye these the necessary justification for reconsidering a flawed decision. even if there is a special justification for overruling, the court left the possibility it might stand by a precedent because overruling might have a significant effect on reliance.
there's one other piece of the puzzle i want to mention. it is something i alluded to earlier. there is an important question whether a fact 80 decision is egregiously wrong supplies a special justification for reconsidering it. you might argue that if the court is confident a decision is clearly wrong, that should be enough to depart. one response might be if a precedent, the doctrine of precedent is meant to unify overtime and give stability to legal rules, even though the belief -- even the belief a decision is wrong might not be enough. whether a justice fuse a decision as clearly wrong will be bound up with his or her own theory of judging. one point of fidelity of precedent is to make those individual theories less important, to elevate the institution over the individual. that's a difficult and complicated issue, one i think we will hear more about in the years ahead.
there is a related issue involving the relevance of precedent set for a fact. with bad effects. if it views depend panama judges underlying philosophies, one might say we might keep those out of the calculus to allow batch to work as a unifying doctrine. work as at to unifying doctrine. turn to some of the big questions i see coming in future years. whether it matters a decision is seen as clearly wrong and how to think about a decision's detrimental effects are the big questions that could influence the role of precedent in the year ahead. another question is how to
define relevancy. i would also add a couple of more questions in closing. the first moves us back from the issues of precedential strength to the study of precedential scope. one fascinating question is the extent to where actual is him or living constitutionalism should give deference going forward. -- supreme court court have not said much about this. it is possible that related issues will arise in the context of administrative law. late last year, the supreme court admitted to hear our doctrine of administrative law which requires judges to have interpretations of their own regulation. the question is whether a predecessor case should be overruled. that analysis would require a
research into precedent strength. i actually think it is an open people like our or the chevron doctrine of administrative law, whether they all for theny -- at interpretive approaches they set forth. look an awfules lot like methodologies of interpretation. it is an open question whether those methodologies of interpretation were indifferent or whether to grant difference to them would go beyond the boundaries. finally, the last question i want to flag goes to the legitimacy of deferring to precedent. for years, there has been debate about whether and when deference to constitutional preference is up to interpretation.
i think the consistency of religion wisdom -- consistency of original is him and the ideas it provides will become bigger issues in the years ahead. our next speaker seems to be -- happens to be one of the best speakers in the country on this issue. i will thank you one more time, and turn it over to steve. [applause] >> thank you, all, very much for coming to hear us. thank you to the organizers for having me and the judge for a kind introduction and the professor for vastly overselling my work. i want to start with a question. some people asked when our courts required -- the question i want to ask is
when our courts allowed to? if you are an originalist and you think the original constitution is still the law today, why would you ever depart from that original constitution in order to follow the dictate of some subsequent court? some scholars give never, the constitution's law and what the courts say about it is not. i would qualify that's never. my answer might be more along the lines of hardly ever. it's only when the constitution itself or the law leaves you unclear that the founding doctrine's will allow you to go with the court and not with what you might think the best answer might be. --rse may not use to start thisook
isis -- it is setting the law that their oats require them to enforce. instead, it is a rule of common law, one like occlusion or waiver which processes cases and gets the right questions before the right people. it can be done consistently with law, but only if it is properly kept. let's start with the way the courts often speak of decisiveness as a principle of possible. the following precedent means departing from what to think the law would otherwise require. you're putting someone in jail or letting a crime go unpunished , or taking life savings or the custody of children, not because you think the law requires it, but a previous court said so. as a principle of policy, you can rot in jail. precedent may--
be a good idea, but anyone familiar with the law knows, there are lots of terrific ideas out there. very few are represented in the law. you can't put someone in jail because you think it's a good idea. you need to show the law requires this particular result. because stare decisis means looking to a precedent instead of the result you would otherwise reach, it means departing from your right answer, whatever your constitutional theory might be. this is not something unique to originalists. differentfollow theories of interpretation would still have to say i would not follow what i think the right, let's say, living constitutionalist idea is because i'm bound by what the court said years ago. if precedent does any work, it usually involves following the wrong result. how can that be consistent with the law?
approach is that stare decisis is about setting the law. when a court reaches a decision, that decision is the law for our legal system. that's might be because each court as article three authority to say what the law is in a determinate way, or it might be that we have a common-law constitution, one that evolves and changes and draws from tradition of many past precedent s. i come of myself, take a more old-fashioned approach to the law. our system treats the constitution itself is law and not put courts said about it. , and not anytion judicial interpretation thereof, and the laws of the united made orand all treaties
shall be made under the authority of the united states, shall be the supreme law of the land. the judges in every state will be bound thereby. the judges are bound by the text and not vice versa. can't amend the constitution, that takes two thirds of each house and recorders of tehe -- the states. how can their decision shape the supreme law of the land? it would be very strange if stare decisis and precedent or about setting the law outside of the context of common rules where the accumulated body of precedent may be all the body we have -- all the low we have. -- law we have. the middle district of north carolina might have to rule a different way because the fourth circuit said so. no one thinks that the affordable care act or first
amendment or the sherman act, or anything else requires different things because you are in one place or the other. the law is the same, even if courts guess about what it might actually means might be different. this leads us to a third possibility. that stare decisis doesn't make the law but it is like law, an imitation of law, something that might be required by other rules , which we might have inherited by the founders. that sounds a little strange, but the law is full of as if doctrines like this. take the doctrine of for forclusion. we treat that is if at -- if it is a true fact. another rule of law determine the result. or take the example of waiver.
you might have a terrific first amendment argument and now we might not listen to it. not because you are wrong, but because some other law said you had to raise it and you didn't. we use the imitation of law that the waiver rules produce. this is how vertical started -- vertical stare decisis works. we are required by the rules of our system to assume the 11th circuit knows what it's doing and has to listen to its superior. how does that apply to horizontal stare decisis? , the common law seems to have been that you could follow the decision at this -- decision as if it were the law if the real law is unclear. i'm borrowing from a famous argument. if you don't know whether the
argument is right or wrong, it is required to go with what you have in terms of precedent. this speaks to justice kagan's concern of humility. think are not sure in you it is slightly one way more than the other, you should stick with the existing precedent rather than try and adhere to what you think the rule is if it is not clearly wrong. if a precedent is demonstrably , except in unusual cases of reliance, a judge is not allowed to close his or her eyes to the law or constitution and to go with the imitation itself. thank you, very much. i look forward to your questions. [applause] >> thank you and thanks to all
of you. i think about this a little differently, having spent the last three years of obama's term being his white house counsel. i think just based on my general practiced in history, i think maybe --se issues and i think about it in terms of power and in terms of institutions. the professor is right. if you have five votes on the supreme court you have the power and can declare anything you want wrong. you can declare it kind of wrong , you can declare it egregiously wrong. you can put any adjective in front of it and since you are the final speaker on all of that, you get to win. i think that is dangerous. the second point i want to talk about is institutions. i am going to deviate away from the supreme court because my two experiences at the white house
have had such a profound impact on me and i suspect it would have the same impact on anybody else, whether they were republican or democrat. in 1990, serving president clinton. i was in the white house counsel's office. president bush occupied the same building in the same offices. and then president obama was elected and i go back in. wasn't tell you how moved i institutionsc same continued in place from one administration to another administration. it was the same building, it was the same oval office, it had a different rug because every president puts a different rug. president obama was the first to put wallpaper on the walls. i was overwhelmed at the sense of continuity and how important
that was to the operation of the building. is ane that stare decisis odd doctrine. it fundamentally never applies, unless there is a doubt about whether the prior decision is right because if everyone agrees it is right, nobody talks about stare decisis. on the cases paste that have previously been decided and it is an odd doctrine that comes up when there is a question about if something is right or wrong. i also had a note about justice kagan and her comment. , although the law professors will know this is significantly better than i do, i think the comment was out of the dual sovereignty at double jeopardy case that was argued last fall and i think that is
right. i think what she said was here we are deciding other to overrule this doctrine and 30 justices before us ruled in favor of it. i think the point she was making is all 30 of those justices, indeed all 110 prior justices, were selected pursuant to the same constitution, took the same oath of office as l5 or nine that were considering this case and the justices had to have some sense of humility. why is it that they think they are so much smarter and have a better view of what the constitution requires that somehow their view of what is wrong or clearly wrong should prevail over the votes of 30 justices. nominated by a president, infirmed and sworn in. i think that in a fundamental
sense is the humility she is talking about. the humility of thinking to yourself i can conclude that it is wrong and i am better than all of the justices that came in front of me. , ire is an echo of this think i had a slightly different quote from justice cavanaugh and argument inade this the franchise tax board case, which is way too confusing for me to follow. california was being sued in the nevada courts and the issue was whether that was ok. there was an opinion that seemed kind of wacky that that was permissible and they were deciding whether to overrule it. one of the things that justice kavanaugh said was how am i supposed to determine if it is egregiously wrong? if that is one of the standards
of not following president, not relying on stare decisis and many people think that is a principle, how am i supposed to figure that out? articulation of a form of humility. justice gorsuch, i think this is right. i have not done the work myself. if it is not right, i am sure someone will tell me. the supreme court decided roughly 60 cases and attentive bills, justice gorsuch suggested some precedent should be re-examined by the court. he did not say they should be reversed but the first step toward reversal is a re-examination. that is a significant view that precedent is open and pretty much available and fair game. let me say a word about it.
i suggest -- i imagine there will be questions. there is a sense and it comes out of his argument that we are following the constitution. we swear an oath to the constitution, we do not swear an oath to the supreme court and its prior decisions. i get that. the pace that goes with it is, i think the underpinning of it is the notion, we are better, we figured out better how to determine the constitution than our predecessors. follow thatve to precedent. we have been released of the constraints of stare decisis, i think that is a dangerous proposition. i think that is a proposition
that is not particularly helpful. washington, i want to close on a few comments. say people doo not have the same view here. i am worried about our institutions. i am not reason -- talking about the state of florida, i do not know much about your institutions. i do know about the three branches of government in washington. regardless of which political party you are with, i think there is a general agreement that the executive branches are in a state of perpetual chaos in crisis. the legislative branch, essentially in my view, pat -- it passes one statute year. it passes some continuing resolutions or government funding and then they jam all sorts of substantive law into
that. they basically do one thing substantive a year. apart from that, it is pre-much broken now that the democrats have taken over the house, i suspect it will be even harder to get anything done. my concern, i will be straightforward, if we have a by fiveries of opinions justices appointed by republican presidents who decided stare decisis does not really apply, that they are not constrained by stare decisis and can be out on their own, they will be real view in this country that that institution has become blue sized and is not an institution of law and through of law, but in institution of individuals who are perpetuating their own view of what is right and wrong and what is egregiously right and what is egregiously wrong. frankly, i don't think that is in anyone's best interest if you
are on the right or left. i think that institution is the one in our current environment that have to survive. i am rooting for it to survive and prosper, and be the nonpartisan institution we all needed to be and i am quite concerned about where this could end up. thank you very much and i looking forward to the questions. [applause] >> good afternoon, everybody. i practice law in palm beach gardens and throughout florida. face theting as you table all the way to the left, the reason for that, as many of you already know. i will describe how my colleagues in martin county view we were theg you founding members.
justice major harding is one of honor to have five the become very good friends with him and we are honored to say he is one of my most important mentors. when he came to our dinner and we were about to sit down, he said i am going to sit to the right of richard. one of our colleagues that is said county court judge everyone is to the right of richard. [laughter] >> that is how i think i am perceived by my colleagues at home and i am proud and happy to be here and appreciate the occasion to talk about this subject to you all and also to bring some practical bearing and practical insights to the topics, to follow up on what neil said and not to respond to, but to give a different viewpoint than our academic friends.
while i am a professor at tulane, my classes are nowhere near the size. this is a far different academic experience for me. one of the things i do and have had the honor to do is be civicsd in benchmarks education program, which is an adult civics education program if hundreds and thousands of lawyers throughout the country have been training to go into their communities and teach people about the judicial branch of government and its importance. i share neil's concerns about our institutions. i know all of us in the room no matter what our political views might be all believe in the institutions of our government, especially if they are impartial and independent to a judicial branch of government. to me that means judges make decisions free of political
pressure, and the way they believe is the correct method to use. there are theories you have heard about from professors as to how decisions are to be made. we can have arguments and debates about them for days, if we want to. their respective backgrounds and value systems to the bench with them. whether we like that or not, or wish that to be the case or not. in the past, the confirmation processes that we now watch are somewhat different. now the confirmation process that we see on television clearly indicate that there are witness tests for both sides to what judges should believe or not believe to qualify to be on the bench. that is an unfortunate situation from my view for everyone. that is the way it is. because of that, judges bring with them what their background
is, what their viewpoints are to the bench. if that was not the case, the theories we are talking about would uniformly be applied by all of the judges and all of the decisions that were made by those judges would be unanimous, wouldn't they? as we know, judges and justices and the courts rarely have unanimous decisions and those unanimous decisions generally focus on issues that are so obvious in terms of their decision, that a unanimous decision is really the only possible result. when we talk about stare decisis and precedent, it is an important doctrine and theory for us to be aware of and how it is being applied. how it is applied is the most important part of any discussion that we can have from the perspective of academic emissions, from the perspective of the bench or from the perspective of we as
practitioners praise when we advise clients as to whether or not we should i'll suit for them, we need to be able to advise them hopefully with some degree of accuracy, what they can expect bright sometimes they do get what we tell them to expect and sometimes they do not. human element and the decision-making process was not such a major factor, our predictions of what would happen would be accurate almost all the time. we live in an adversary system in which we are attempting to obtain a goal for a client and achieve a result for a client, there is a lawyer on the other side who is trying to prevent us from getting there. physicians and almost my entire practice. i tell them when they come to see me the difference between what they do and what we do as lawyers is the following -- when
a doctor sees a patient and makes a diagnosis, the physician advises that patient what he or she can do for them, the process if they should follow and what the results will most likely be not be if they follow that advice. we as lawyers give advice to our clients and have to tell them that the attorney on the other side of this process is going to do everything in his or her power to zealously represent his or her client and prevent us from achieving our result and a judge and jury ultimately make a decision. we have someone or something in system in our adversary of attaining that result. i am contacted by judicial nominating committees all the time to give my thoughts on judicial candidates who are before them. many of whom i have significant
disagreements with their political police. they asked me why i am supporting this particular person because my political beliefs might vary with theirs. i tell them that this is not what this is about. the judiciary is about putting people who are capable of being fair and independent in their thought process and making a decision based upon those thoughts of that process. i might not always agree with the result that they reach, but if i get a fair trial or fair hearing and my clients do, i can explain to them that they received a fair trial, the judge made his or her decision, i do not agree with it but that is a decision and we had a fair hearing and we can attain relief if we choose to. that institution is what we are talking about here today and preserving it. perception is reality and i say this because everywhere i travel
and everyone i talked to about the judicial branch, the supreme court of the united states is held in its lowest esteem since the bush versus gore decision. the public perception of the u.s. supreme court before bush versus gore was significantly higher than cents in. the public's perception of the politicized mission of the courts. the public only knows what they hear and what they see in the media. yesterday, i read in an article in the sun sentinel that the governor of florida made a comment about this meeting and the three new supreme court justices on our court. this is what he said -- these three new justices are willing to reverse bad precedent and not legislate from the bench. view or any ofy
the folks on the panels of view of a bad precedent may not be the same and probably is not. your view and my view and their view from the bench is probably not -- and in some cases, absently not -- the same. perceives when they hear comments about bad precedent and legislating from the bench is something they don't necessarily understand. the public generally does not understand. the court serves the public needs and the court protects the interest of the public because in my view, that is what the constitution did when it created the third branch of government known as the judicial branch. to interpret laws and to make that is what people from understand the role
of judges to be. most people do not know what stare decisis is. their understanding of precedent is very limited and they don't come to presentations like this one to listen to us talk about it nor would many of them understand what we are talking about. it is incumbent upon us as lawyers and judges and the custodians of the judicial system to make sure the system impartially and independently. that brings me to some historic perspective, even farther back than the perspective you have heard so far. when i did my research for this presentation, i came across an article by an abandoned charles cooper in 1987. he is a famous conservative lawyer. he wrote -- let me say at the outset that it is high time the federalist society devoted a
panel at a national symposium to the doctor of constitutional stare decisis, for if there is any principle that is fundamental to the true conservative, if there is any rule that is cardinal to the conservative, it is stare decisis. if you don't believe me, ask any true liberal. that is what he said in 1987. we are here in 2019 at this symposium. vanderbilt,e arthur one of my favorite jurors, historically, was the chief justice of the supreme court of new jersey and was president of the american bar association back in 1937. here is what he wrote about stare decisis and the precedent. we should not permit the dead hand of the past two way so heavily on the law it , lessuates without reason
rules of law are projected as conditions change and is past errors become apparent. the common law will soon become antiquated and ineffective in an age of rapid economic and social change. he wrote that in 1950 and here we are in 2019, having the same discussions and same debates in an age of rapid economic and social change, to say the very least. the last thing i will leave you with is this -- this is also from justice vanderbilt. people will tolerate the loss of faith in the legislative and executive branches. but the loss of faith of the visual branch will be followed by the loss of our very system of government and our way of life. preserving precedent and stare decisis is important, but how it is implied and how it impacts us as lawyers and judges is the real question telik forward to
talking to you more about that. thank you. [applause] >> let me invite each of our panelists to take two or three minutes to offer any comments about what you have heard from your co-panelists. thank you to everyone for these comments. you think of, as some of steve's points regarding the elation shipped between arnold -- our regionalism and precedent, one potential response i might have is if you look at the constitution, there are a few features that suggest to me that deference to precedent might be a permissible inference, even in constitutional cases. you have a constitution that treats the courts as a
continuous institution. they do not turn over like congress does, they do not turn over like the presidency does. they have life tenure. it is durable. there is no electoral or official oversight, which means impeachment would be difficult. if there is going to be constrained, it would have to be from somewhere else. hadhe time of the founding, some commentators like hamilton recognizing the potential for precedent to act as a restraining force on judicial discretion. i would add one more point. the constitution is a specific in some respects, it is also ambiguous in general in certain respects and it was always understood to be so. the constitution would always need interpreting. when you line up those factors, it seems to me there is a permissible inference that judges might be empowered to issue decisions that give percent of fidelity going forward.
the constitution -- rather than constitutional rule potentially adding and flowing as different judges or justices with different interpretive philosophies came and went from the court. i will leave it there. engagementiate the that we have seen today. thread runningn through a number of the comments is a sense, or maybe a worry, that there is no actual rule. the best thing we can do in place of it is just adhere to what we have as precedent, that is something we can fix. everything else is uncertainty. i don't think that is necessarily inconsistent with the view that according to the founders, you did have an unclear case, you weren't sure what the actual rule was, that precedent was the required thing
for a courts do. if you think there is a rule there, if you think you -- you seethere are one that is correct and one that is clearly incorrect, it requires a lot to say -- out of a sense of humility. i don't know how humble that truly is, to put aside the clear conviction of what the law is and to impose a different result on real people and real lives. i think the courts very frequently reach correct answers that are accepted as correct in law, even though they are contested. something like two thirds of supreme court cases are unanimous and every single one of those had some amount of this agreement leading up to it. yes the justice of the supreme court tend to see after going to the process that there is a right legal answer. something. well do
if you think there are right answers, we can be relatively confident about what they are. thank you. just a few comments. i want to echo what the professor said about constraints. i think that is one of the reasons stare decisis is important. there are cases that have to get reversed. i.erybody mentions pless i am not arguing plessy should have remained. that is what they seem to have done. it is not like this is ironclad and it has no play in it at all. thenut stare decisis that
-- all you are is power. all you have is five justices that get to say what the law is and they get to say it on any new issue anytime they want to. without stare decisis, there is everybodyint because -- the professor was on a podcast on monday about the supreme court. comes in some sense from is aw that there discernible and obvious answer. let me go back to justice kagan for second. i don't know how the case will come out, but it is possible that five justices will overturn the double jeopardy rule and 34 justices would have voted the other way and the five justices will say the earlier opinion was
egregiously wrong. outcome underible the professor's view. than view, that is more lack of futility, it is a level of arrogance in decision-making. that you are right about what you are doing. the last point i want to make, i start my classes -- i taught at harvard when i left the white house, and then i taught at yale and now i am back in harvard. in the first class i had done -- i mentioned even when i was white house counsel, i did not read article 2 from beginning to end and you don't have to. there are not very many words. once you take out how presidents are elected and removed from office through impeachment, there is very little there. foundersn that the
thought all of those phrases were clear and unambiguous and were decided by historical precedent, if you actually read the language she could not come to that conclusion. that stare decisis is an important doctrine and part of the analysis that judges go through. i think it is tempered by a number of factors that have been discussed by members of the panel. i think the nature of what is being reviewed is the application of the doctrine, such so that cases that are being reviewed for purposes of overruling that have granted rights to folks need to be reviewed very carefully. compellingo be some -- >> we are going to break away from this discussion briefly and go to the house floor. we do not expect any legislative work and we will get back to that discussion once the house
has wrapped up. live coverage. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captioning made possible by the national captioning institute, inc., in cooperation with the united states house of representatives. any use of the closed-captioned coverage of the house proceedings for political or commercial purposes is expressly prohibited by the u.s. house of epresentatives.] the speaker pro tempore: the ouse will be in order. the chair lays before the house a communication from the speaker. the clerk: the speaker's rooms, washington, d.c., march 21, 2019. i hereby appoint the honorable jennifer wexton to act as speaker pro tempore on this day. signed, nancy pelosi, speaker of house of representatives. the speaker pro tempore: the prayer will be offered by our chaplain, father conroy. chaplain conroy: let us pray. gracious god, we give you thanks for giving us another day.
you have blessed us with all good gifts and with thankful hearts, we express our gratitude . you have created us with opportunities to serve other people and their need, to share together in respect and affection, and to be faithful in the responsibilities we have been given. in this moment of prayer, please grant to the members of this people's house, as they meet with their respective constituents, the gifts of wisdom and discernment, that in their words and actions they will do justice, love with mercy, and walk humbly with you. may all that is done this day be for your greater honor and glory. amen. the speaker pro tempore: pursuant to section 2-a of house rouse -- house resolution 208, the journal of the last day's proceedings is approved. the chair will lead the house in the pledge i have a liegeance -- pledge of allegiance.
i pledge allegiance to the flag of the united states of america and to the republic for which it stands, one nation, under god, indivisible, with liberty and justice for all. the chair lays before the house a communication. the clerk: the honorable the speaker, house of representatives. madam, pursuant to section 104-b of house resolution 6, 116th congress, i am pleased appoint the following member to the tom lantos human rights commission, to serve as the republican co-chairman. the honorable christopher h. smith of new jersey. signed, sincerely, kevin mccarthy, republican leader. the speaker pro tempore: pursuant to section 2-b of house resolution 208, the house stands adjourned until noon on monday, march 25, 2019, for morning hour debate, and 2:00 p.m.
sometimes the issues are dependent upon a broader interpretation of the u.s. constitution on state law issues. >> so one of the really interesting as acts of randy's -- aspects of randy's book is trying to rigorously connect theories of precedent with underlying interpretive theories about the underlying law. spiritask in that questions from the perspective of originalists and living constitutionalist. you suggest that a vigorous view is a sort of sensible compromise for both
camps because everyone's at risk. there's some originalist precedent. there's some non-originalist precedent. this won't work systematically to the benefit of one side or the other. right becauseat's we can debate whether living constitutionalist of is a good thing or not but it seems hard to to be the last 70 years or so have an predominantly that school. you can look at maybe the second amendment. most of the rest is not. if you are in originalist thinking about this and no one wants pure power it was just as women who said five votes can do anything around here in service of one side substantive marriage
to be. could or should one be concerned that you are just locking in the other sites gains. >> it's a great question. it's an important question. , ifway i tend to handle it we ask that question, who's giving up more and who is stuck if we startst hand really paying attention to precedent now. i don't think we will ever adopt a rigorous doctrine of precedent because i think right now we might think most of the major precedent points one way and therefore somebody on one side would be giving up too much. what i try to do is not look at the particular set of precedent was givings and ask up more if we adopt a commitment to precedent but try to think
about the theories more abstract way. maybe it would be the best from couldy's to if you convince adherents of other interpretive philosophy is to come aboard with you. then everything will be smooth sailing going forward. you might have your own marginal differences from case to case but you basically have widespread agreement. that would avoid some of the problems we have been talking about because everybody would just agree. if we think that's hard or becomes in the question are there other mechanisms to forge some collaborative work consensus approach and that's what i look to fidelity to precedent and that's because everyone is giving something up.
everybody is giving something up. everybody is getting something in exchange. i wonder whether at the end of the day there's a better chance jointering some sort of collaborative decision-making approach then continuing to try to everyce the parents answer to philosophy that they are wrong to all respects. who defend a pretty strong precedent recognize that there are some times when decisions just should yield and i wouldn't have a very that would affect -- any judge or justice to abide no matter how wrong. in lots of cases can i go along in order to emphasize the courts nature as an institution well
nevertheless having those cases my own interpretive philosophy simply has to be paramount and i recognize there's a space for that as well. thatcertainly take point people disagree about constitutional interpretation. not everyone has already come to the correct view. system dealsour verythat is through the structural features identified. constitutional zeitgeist courts in the country the changes a lot more slowly. what it means to be in the middle will change as time goes on.
the constitutional interpretation doesn't turn on a dime. you have to persuade a lot of people before you get five justices who agree with you. what i'm not sure of is that anyone justice is allowed to put aside their constitutional views in order to hammer out some sort of compromise. awaympowered you to trade one right for another. i will give you movies if you give me guns. their job is to apply the law. i also very much take the point in practice in some sense five votes can do anything though i think there are limits on that. i think the concern that if there is no storage us isis all
you have is power strikes me as fairly puzzling. it seems there's an awful lot of things out there in the law. we have volumes and volumes of the u.s. code and it strikes me as very unlikely that all there is is power. in fact there's a great deal of real law out there to be applied and that many cases gets applied quite faithfully. that nows me as to say is the time when we are starting to worry that perhaps this institution might have been politicized. people think that is a long-standing worry in this country and that the real question is not can we invent tiething that will ourselves to the mast and storage services doesn't do that.
five votes can toss aside past cases as easily as they can do anything else but what really binds them is a sense that there are legal switch if you violate you will have gone beyond your office as judge and those particular legal rules might focus on past precedents, statutes. you are going to be ruled by some group of did people. that is something any conscientious group is going to have to take into account. >> the statutory issue is a different place when they are interpreting statutes. as to the constitution where on so many of these cases there can be good faith disagreement about
the constitution means. i find that kind of alarming actually. i thought this was a sense of all that was supposed to lead you to a conclusion and the notion that different quite smart judges could look at the same history and come to a different place is to happen with justice thomas and justice scalia. i think there's definitely more constraint in the statutory context. see there are constraints else into my method of deciding starts with your method of deciding been the winner. and i'm just not sure that's very satisfying.
am quite sympathetic, just because somebody got to go first they shouldn't necessarily win. i get that. that's not quite right. and in some ways i get to stare some way.ans that in if i were the supreme court and i was in the process of reducing -- reversing a decision that was 1 and i was rendering , maybe i'm not so certain i'm right and all that's happened is the composition of the court has changed and i ought to really think through weather and got this right and what in my individual conclusion that i know what the law is and therefore i'm down by my oath to i think there should be
some sort of governance on all that. i am struck and i appreciate the professor not raising this with me. liberal did a piece right after eric garland was -- nominated. he basically wrote a piece which i'm thinking he now wishes he stare written which said decisis be damped, it's time for us liberals to get the court. i think this really applies both ways. that the first to win is a dangerous doctrine meaning the first decision gets to govern what happens only because it was first is a dangerous doctrine elicits tempered by what we have talked about.
about dead comment men were dead women are going to control what happens today. it brings me back to what i quoted in my opening remarks that we should not permit the dead hand of the past two way so heavily upon the law that it perpetuates rules of law without reason. andi think that's a process a tenet for us to keep in mind when we look at how stare decisis is applied. >> the floor is open if anybody wants to step up to the mic. >> i would like to thank leaders of the federal society. what's happening here is so rare in our society and that is disagreeing civilly and intelligently. it's really the essence of what classical liberalism and america is so thank you to the leaders
of the federal society. [applause] my question and comments are for mr. levenstein. what i would do is question your assumption that that is all linked to bush versus gore. i think a more plausible theory is that that could be explained by the multimillion dollar smear campaigns as far back as justice thomas and most recently justice kavanaugh. whether or not you agree or disagree with the allegations certainly those were campaigns against it just is. i think there is ignorance about how judges work. i think there is a widespread concern and understanding about abuse of judicial power.
this is probably why millions of republicans voted for the president of the united states even though they didn't like him. they were concerned about the abuse of judicial power. i'm one of those voters. there is much more understanding about what the governor termed than oneal activism would think otherwise. curious about your comments. statistics that i quoted were done by national surveys and polls and i don't know whether it's attributable primarily to bush versus gore but the polling before bush versus gore and pulling afterwards is vastly different and since that decision was opinion of thehe public has either stayed at a low level or gone down. for whatever reason. i don't place this on the blame of one party or another. i attribute it to the
politicization of the confirmation process that people watch on tv and negative ads that are placed in judicial elections. how many of you remember the 2012 retention election in our state the television commercials against certain candidates up for retention and basically said that the end of the world was going to come to florida if they were retained in a very dark way. public that's what the sees and as far as your western about what the public perceives bench, i cannot agree with you that they are the sophisticated. less than one of three people could name the three branches of government. less than one in three people knew what checks and balances work. more people could name the three
stooges and could name three justices of the united states supreme court. and that's because civics education in this country was deemphasized in the last 20 to 30 years when we went to standardize testing because civics and government was never a standardized test subject and not until the last five years, florida now has most of us to and just civics education requirements in the country. we hope things are starting to change. my feedback from the people i teach and interact with tells me that's correct. >> anymore questions you go >> good afternoon. what's the origin of stare
decisis? >> it goes way back. there have been doctrines about falling precedent as long as there have courts. in english common law there were ideas of questions that had settled by precedent. oftended not to be the model five justices had spoken. it was more along the line of a reputed series of decisions. these cases weren't necessarily you had some guy sitting in the back writing about what the judges were saying. a systemlike they had of reproducing judicial opinions in an official way that were taken as stating the law assumes an opinion could come down.
it was more like as an issue had glided around and a lot of judges have thought something about it that was taken as very good evidence of the law. certainly coming through omnipresenceut certainly the idea that judicial decisions were evidence of the law rather than the law itself still had a great deal of currency. >> my question is a follow-up to something mr. eggleston said about how if he was a justice in a decision that would give him pause. aboutrulings are actually twice as likely as 5-4 rulings. my question is if a current supreme court justice takes the precedent is egregiously wrong and should be overturned how much should it matter whether the precedent being overturned was on nine nothing ruling or
something in between? as you can probably tell from my point of view, i think should be justices wary of concluding that they alone have it right. in some ways that is my fundamental view which is if you alone thank you got it right and everybody else has got it wrong i think you ought to think to yourself i wonder if i really have it right to the reason i this happenst is with justice thomas frankly all the time. as nearly as i can tell he cares nothing about stare decisis which is fine. , you guys will probably remember the case. caseote a concurrence in a
that the majority have not relied on a particular argument but if it had -- it hadn't, but if it had it would have been unconstitutional. , that's ato myself lot of work for nothing that is really presented. i guess i'm back to my humility point. i think there's a level of certainty to rendering some of those decisions. i get that people in good faith can decide they are right and everybody else is wrong and ultimately you were there and think it is important enough to upset those expectations justices are going to do it to but i am wary of people who think, i got it and everybody else is out of step. i'm just wary of the and it is sort of not the way the law generally works in my experience. it's not a satisfying answer but that's my answer.
>> justice stevens and just the scalia. it seems to me these were two men who had completely different views of how stare decisis applied. i seem to remember a case involving an oil company. oh yeah, chevron. 1980 four. justice stevens wrote this opinion which massively expanded the power of federal agencies to enter the law that created them. so then 20 years later or republicans were in charge of the epa and somebody came forward to the supreme court and
did you believe chevron and -- when you wrote it? what are you doing, you are overturning with the epa has decided on this technical issue which could lead some people to decisis ist stare really a tool used by living constitutionalists to put down originalists. [applause] have i overstated the case? not. of course >> anyone want to answer? >> i was thinking of mr. eggleston when i direct this because i like some of your comments and i also liked the comment about stare decisis being a one-way ratchet which locks in the gains of one's died
and prevents the other side from gaining. would you care to address what i asked you to >> was that directed at me? i didn't understand you had directed that to me. >> i probably should have said that up front. you had a very lucid argument on the other side. >> the problem is as a non- professor, these cases obviously becauseassachusetts epa it has come up in some other litigation done. i have not gone at all deeply about -- to put it to me in those two cases, i don't remember scalia's dissent. whathard for me to address you said. think -- in some ways i'm going to make a comment but i don't know the case well enough. there's a very big difference between chevron which is about agents is interpreting the statute for them and the
technical decisions that were made and whether those are supported by substantial evidence. i will tell you, judge -- court reverses the decision on agents failing to have a significant record for its decisions all the time. foot on helmets when i go and argue in front of the d.c. circuit judge i can't be more sophisticated in the air because i don't know those cases well enough but i know that there are some different issues. at least i think they are different issues. i can't really address it. i'm not good enough on those cases. >> i'm not in expert on the relationship between those cases either. i think concerns like that one generally speaking come back to the issue of precedential scope
and i think sometimes not enough attention is paid to the idea that what they precedent stands for is actually dictated by legal rules. there's a law to what the precedent stands for. sometimes it is being treated as if it could stand for anything. that is to my mind one of the really important reasons for emphasizing the development of a law of precedential scope. i think there are all sorts of interesting aspects of precedential scope. how do we treat decisional rationales, are they imbued with precedential effects. support mores development around the rules of scope which i hoped would lead to at least less concerned about precedents being misinterpreted going forward. >> one other point i would make takestever approach one
to the lofty can always do it in a bad way and there's motivated reasoning to be found in presidential opinions and motivated reasoning can be found in constitutionalists opinions,n differentiate one from the other, so it cannot be an indictment of an method, necessarily, an approach that generally people try to misuse it, and i think really all one have their view of the law, what you think the right answer will be, to be able to defend. i would certainly disagree. i do not think originalist him is necessarily easier. i do not think it leads to agreement. it is perfectly possible that justice thomas would agree all the time. time form told we have two more questions, and fortunately, we have two people in mind. >> thank you.
this is in particular for professor sachs. do you think overriding mayedents, originalists counter problems in certain areas where certain principles of law are settled, not just in courts of law, in the courts of public opinion, that there is a sort of social aspect. i am thinking of certain civil rights cases, but the principle can be applied elsewhere. prof. sachs: do you mean the civil rights cases from the 1880's? cap in backking of and things like that. prof. sachs: some of these opinions that would be the first to go would be things like slaughterhouse, the cases, usingn the amendment more aggressively than the public was willing to stand at the time. so it strikes me that surely there are things on which we
have gotten used to, and people like the way that things are, and one of the advantages of the constitution is there are ways of dealing with that. we have aendments, lot of different tools for changing the law. the point of originalist him is not to say everything has to be precisely as it was in 1788, the point is that the law has to go through proper channels and not improper once. [applause] n: last question. >> i do not recall which of the two law professors said this, i apologize, but waivers, preemptions, proper sizing rules. it seems to me we do not have people losing sleep over the waiver rule, preemptions, and things like that, because we have a generally accepted consensus of what the doctrine is, what rules are in deciding whether it is preemption or
something like that. so my question to the panel is -- is part of the problem that we do not have an accepted doctrine of how starry deisisy the should be apply? so it is not the role of law, it is the role of our. it strikes me that courts disagree all-time about with the actual standard is pure and what makes those questions easier is sometimes they are one-offs. as some argument been waived by a lot of people at one time, but i do agree with you, if there were a more well agreed-upon common law rule, decisis, the
problem is people do not agree on its scope. i do not think there is very its agreement on what scope is taken to be now. john: you get the last word. kozel: in the research i have done, there is very must much research, and you can see just on the people in this podium we have different views. s who do you like? i do not think there is one application that has been accepted, but judge katsas, i will leave it to you to tell us decisise is one stare that is agreed-upon. judge katsas: that is not incumbent upon me. [laughter]
think we need to thank our panel, which sets the bar high as we go forward. [applause] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2019] >> president trump is expected to sign an executive order this afternoon that would withhold federal funding from private colleges that do not guarantee free speech. for 3:15 p.m.d eastern. you can see it live here on c-span, and later this afternoon, inspectors general from the department of health and human services, justice, defense, and commerce speak about their efforts to invite waste, fraud, and abuse in the federal government. that is live at 5:15 p.m. today on c-span. president kennedy: the only thing we have to fear is fear itself. ask not what your country can do
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