Circuit Breaker

0:00Welcome to another episode of a Marcus Constitution. I'm Andy Lepke here with Professor Akiel O'Mar. Good morning, Akiel. Hey, Andy. So we're late again this week, although not really, because it's earlier than a week from last week. So we're back onto a more standard time here. And of course, you've been bouncing around within the time zone mostly, but certainly all over the place, which happens every year around Constitution Day, Constitution Week, Constitution Month. When we get the Constitution year, it's continuous. Anyway, the Constitution is on people's mind. So it's not surprising that this is something that calls for your expertise all over the place. And I want to know where you've been. And part of the reason I want to know where you've been is because it's relevant to what

1:01we're going to talk about today. It absolutely is. And we're going to talk about history and originalism and the court. A lot of things going on today is actually Wednesday. Since you mentioned time zones, I actually am going to cross time zones tomorrow Thursday to go to the 10th Circuit Judicial Conference out in Colorado. Justice Gorsuch is the circuit justice from that part of the world. And he's actually a Colorado himself. And I'm looking forward to meeting him. I've never met him before. This will make a fourth of the dozen or so circuits that I will have attended this year alone. And it's not because of Constitution Week because I've done this over the last several months, but because this is the 250th anniversary of American Independence and various circuits have in kind enough to invite me in part because they've had special programming on 250. The first of these circuits and they're defined geographically. And Andy, we're going to talk about connections between intentions between the Supreme Court

2:05and the various geographically defined circuits. And we're going to talk about the role of circuit justice today because it's in the news in places like Missouri. But the first of these four that invited me was the 11th Circuit. That's basically the heart of the former Confederacy America's South East, the presiding judge who invited me was Bill Pryor, William Pryor, Republican appointee, a dear friend of mine, and of this podcast. He's been on this podcast before and the circuit justice from that neck of the woods is Clara's Thomas who grew up in pinpoint Georgia. And then I did an event in the second circuit up in upstate New York, the circuit justice for that event was Sonia Sotomayor, who of course for many years, almost two decades, was a lower federal court judge in New York City area. First on the district court then on the court of appeals. And she was in attendance for that one.

3:06As was our dear friend, the late great Gordon Wood, that was actually, I did an event with him two days before his tragic accident in a parking lot in Providence, Rhode Island. So that was another one. The second circuit both geographically and in my Odyssey this year, chronologically. Later in the summer, I was out in the ninth circuit, fast America's West Coast, California, Morgan, Washington, Arizona, even Hawaii is our biggest circuit. The circuit justice, my dear friend, Holly Thomas, the ill-school graduate, Biden appointee, was the host for that event. And justice Kagan was the circuit justice. She was in attendance, didn't get a chance to talk to her. She's actually not from that neck of the woods, but she's the assigned circuit justice. And tomorrow to repeat, I fly out to Colorado to do a thing at the 10th circuit. These are basically the Rocky Mountain States.

4:06And my friend Bob Bachrack is one of my hosts for that. It's a great judge. He's a Democrat. Some of these circuits are presided over by Democratic appointees, others by Republican appointees. Justice Scorsis is just going to be there. Oh, and so is our friend, Jeff Rosen. And this gives us a chance to give him a shout out, encourage our audience to listen to his podcast as well as ours. And of course, he's been on our podcast. He's a small world, but in effect, a Marcus Constitution. And one of the things that we talk about today is the relationship between circuits and circuit justices and the Supreme Court, more generally, lots of news, breaking news out of Missouri. Yes. And of course, Jeff Rosen's podcast is the blessings of liberty. And for those of you who are confused, Kiel said he's never met Justice Scorsis. Yet Justice Scorsis has been on our podcast. And the reason is because Jeff Rosen interviewed Justice Scorsis for his first episode on the blessings of liberty.

5:07And we rebroadcast that on our podcast. So that's how that happened. So yes, Kiel is being a straight shooter on that. And so Kiel, you're talking about the relationship between justices and the circuits and which justices at which circuit. Just a quick question on that. Obviously, now it doesn't really matter. It might be interesting, but it's not a criterion, I don't think, that a Supreme Court justice that's assigned to a particular circuit, live in that circuit or be from that circuit or something like that. As you mentioned, Justice Kagan, for example, what about it the founding of the first members of the Supreme Court? Because they spent a lot of time circuit riding. Do they preside over circuits where that they were geographically from? Yes, circuit riding was the essence of the original Supreme Court. The original Supreme Court, because of a statute passed by Congress in 1789, the Judiciary Act of 179 set up a court with six justices, a chief justice and five associate justices.

6:13That statute is a landmark statute for the judiciary in the same way, the suite of statutes that we call the Decision of 1789, structured the executive branch. That was a series of statute structures, an executive branch, and providing for presidential removal at will, cabinet heads that had the Department of War as it was then, and the State Department and the Treasury Department. The first Congress structured the executive branch and made certain decisions about, for example, President's removal power. The first Congress also structured the Judiciary. The Constitution doesn't say how many justices they're going to be, or even when they're going to sit, what procedures they're going to follow and the light. The first Congress did that in a landmark statute, the Judiciary Act of 1789, it set up a court with six members. My joke is a pretty lame one, but in law school, maybe that's all some of us have, lame jokes, is an even number how odd.

7:17Because if you think the key is the Supreme Court sitting on Bonk, deciding the important issues, six justices may predictably result in a 3-3 deadlock. But ten months of the year, they're not sitting on Bonk in the nation's capital. They're riding circuit. America divided itself, the Judiciary Act divided in America, into three geographic circuits, in effect New England, Mid Atlantic, and Deep South. New justices per circuit, ten months of the year, they're riding circuit. They're coming from these different geographic areas, and they're expert on the state laws of their own home bases. They know the procedures that state courts are using in their home base jurisdiction. They know the lawyers and other judges, and that's what they're doing ten months of the year. This is essential because Britain lost the hearts and minds of American colonists because

8:18Britain had lost touch with the hinterlands. That American revolutionaries, when they create their own system, don't want that to happen. So actually, senators are picked by state legislatures, and they're going back home a lot to connect with their home bases. And Andy, this is why you mentioned, I think maybe even recently, that's what they're going to mean, that the Senate isn't around always, and that's going to create the need for recess appointments because the president is going to always be around in the national capital, but the Senate isn't. They're going to be shuddering. The senators are going to be shuddering back and forth. House members go back to Memphis. Right now, House members are not in DC because they're running for re-election going back to their home bases. That was true for the Judiciary as well, indeed. It's just spending to repeat 10 of every 12 months on average riding circuit in the hinterlands and then reporting back to the center two months a year. Here's what people are thinking and feeling. And again, six justices, two for each circuit.

9:23So that's why the circuits are defined geographically. The Supreme Court expands over the course of American history up through the Civil War as America expands. New circuits are added to the system geographically as America marches west and each of these circuits gets its own justice who then also sits on the Supreme Court. That system doesn't really phase out until the end of the 19th century. Circuit riding gradually wanes and becomes more important. The Supreme Court sitting on bog and circuit riding. And we start to talk then in our era more about demographic seats, the Jewish seat, the woman seat, the African American seat rather than geographic, the southern seat. And even today, the residue of all that is each justice is assigned to circuits by seniority. And if you were on a circuit court before you came to the Supreme Court, you might want

10:25dibs on that circuit. I believe Samolito is the third circuit justice. And he used to sit on the third circuit. And other justices, clearest Thomas is from the south. He didn't sit on the 11th circuit, but that's his neck of the woods. And Harry Blackman from Vic clerked from Minnesota. And he was, I believe, the circuit justice for the 8th circuit. We're going to talk about the 8th circuit today because it includes Missouri and there's some interesting action this week tension between the circuit justice for that circuit Brett Kavanaugh and the circuit Brett himself is not a Missouri person or a Minnesota, and especially because your Supreme Court's estices are often coming from DC, the DC circuit. So they have to be assigned somewhere. John Roberts, typically as chief, takes the DC circuit. Elena Kagan is the only one of the current nine who is not a sitting member of a circuit court, a court of appeals at the time of her appointment. So even now we see residue of this earlier circuit system.

11:29So you mentioning that now maybe it's not so much that you go there and spend time, but you still have responsibility for your the gateway to the court for the particular circuit, at least at times in certain contexts. Beautiful. And the gateway is a good word because since we mentioned the ninth and I said Elena Kagan doesn't really have much connection to the ninth circuit before in an earlier era that justice for the ninth circuit was someone who would sat on the ninth circuit Anthony Kennedy who grew up in Sacramento under Earl Warren. Warren was a Republican whom Democrats liked. He actually once ran on both the Republican and the Democratic ticket for the governorship of California, three term governor of California. He himself very influenced by Warren was a Republican that Democrats could work with and sometimes voted with Democrats. But as a circuit justice, he knew the ninth circuit judges and he was very suspicious of some of them like Steve Reinhart and he took cues from others of them that he had sat

12:35with. And so when some circuit judges in his view were misbehaving by not following the Supreme Court, he had an insider perspective on whom he trusted and whom he did because he had been their colleague for many years. And we're going to see some of that playing out this week actually in Missouri tensions between circuit justices and circuits. But part of the idea of these circuit conferences in some circuits, their annual in other circuits by annual every two years is the circuit justice comes out and reconnects and bonds with or rebonds if he or she was once on that circuit with the judges of that circuit. And behind closed doors, they talk turkey a little bit about that possible tensions between what the circuit justices are feeling and what the Supreme Court is doing. And so presumably the hope on the part of the Supreme Court justices that I get the circuit judges take certain instruction from the that you're not following what we're doing and

13:39it's your responsibility to do that or you are or something I thought are here's where you did it is where you didn't. So this comes down to the relationship between the Supreme Court and the lower courts. So it's an interesting one because the Supreme Court is supposed to be supreme. And yet the Supreme Court does not appoint the lower court judges. You can't fire the lower court judges and it can't really enforce compliance with its ruling through any discipline of the lower court judges. Just so Andy, you used to be in private practice and you hired your staff and you could fire them. And if they were good, you could increase their pay and if they were bad, you could maybe deny pay increases. It's hard to actually lower pay in today's world. But and you could change their job assignments. Maybe they were good at certain things, less good at others. You could shuffle around the duty roster. The Supreme Court has none of these levers over judges who constitutionally sit on this

14:42is the words of Constitution. Court's inferior to the Supreme Court. They're supposed to actually be faithful lieutenants. But what we've just been describing is there's not quite a unitary judiciary. The way there is a unitary executive in that presidents can, and when it comes to cabinet officers, not everyone else, they get to hire them. They're not stuck with ghosts of cabinet officers of previous administrations. They can fire them. They can move around their job descriptions. To some extent, they can say to Mark Urubio, for now you're temporarily, you're not just secretary of state, but you're temporarily head of this other operation or that one. So the presidents have a lot more power over their branch, terms of hiring, firing at will. That's not just cabinet officers, but now members of at least some independent agencies, the swatter case that we've talked about on so many episodes. So presidents can hire and fire at will, change job descriptions, can promote, actually.

15:46Oh, if you do a good job, I'll move you up to secretary of state or maybe put you on the ticket as my vice president in the next round, which is often in American history. Martin Van Geuren was a cabinet officer under Andrew Jackson. And then when he ran for reelection was vice presidential running mate. But the Supreme Court doesn't have these mechanisms. It can review and reverse and in dealing with real misbehavior, rebellion in the rank, so to speak, recalcitrance of lower court judges can maybe try to shame them just a bit, but these are very weak mechanisms of authority, truthfully. But we're seeing some of this on display this week and Vic is a very big player, by the way, in all of this in Missouri. Well, let's assume for a second, we haven't talked about the details of what you're talking about with Missouri. But does a Supreme Court justice still have the ability to say, okay, I'm going to actually go on to this court and I'm going to actually be on this court now, going to be, I'm going

16:51to ride circuit on this court now for a while because there's so out of control that I'm going to actually join that court. That's a brilliant question. And there is not a duty to ride circuit as there was at the founding to repeat 10 months of the year, they're riding circuit. That's what they're getting paid to do. Essentially, over the course of a century, between 1789, let's say an 1889 plus or minus, they do less circuit riding and more sitting on bond, but they are still actually, their duty is to ride circuit until that's basically eliminated around 1890, I think called the Everett bill. But today, there is not a duty, but there is a right to sit by designation. They are authorized to do it. Sometimes they've done it. William Rankus was chief justice. He had never been a lower court judge before. He worked in the executive branch, Office of Legal Counsel, under Richard Nixon.

17:51And he thought it might be interesting to try a case as a judge. He was on a court of appeals of sorts, the ultimate court of appeals to Supreme Court. So he decided to actually preside over a trial. And I think it was maybe even a criminal trial. And it turns out that the circuit court thought he had earned and they reversed him. They reversed him. Perchurium without a named author of that opinion, but that did happen. But Andy, since we're talking about how Rankus becomes chief justice, because he was a associate justice. First, how do you become a associate justice? Because he worked for Richard Nixon and Alena Kagan, you know, worked for Bama. And John Roberts was in the Reagan administration. And so was Sam Elito and so was Clarence Thomas at the EEOC, the legal realist definition of a justice is a lawyer who once worked for the president. Now, if that's the case, you're a lower federal court judge and you're ambitious.

18:54Poor men want to be rich. Rich men want to be king. OK, district judge want to be court of appeals judge. Court of appeals judge want to be justice. Justice maybe want to be chief justice or something, but you, OK, in principle, you should be trying to please the Supreme Court. Their Supreme, your superior, your inferior to them, you're supposed to follow what they're telling you to do. Oh, but maybe if you're ambitious, no, you want to be on the Supreme Court yourself. And they can't put you on the Supreme Court. A president is going to need to nominate you and that creates incentives for some lower court judges to try to maybe pander to a president to get the president's attention. That would then be in today's world, especially given President Trump running hard right to get the president's attention. Hey, look at me over here. I'm available. I'm eligible. Call me maybe. I'm 45 years old and I'm championing your agenda and pushing back even against the Supreme

19:57Court whom you, President Trump, are repeatedly declaring is disappointing you in the Barbara Berthright citizenship case in the terror case in the Lisa Cook Federal Reserve removal case. And of course, our audience knows our faith, audience and thank you, audience for your fidelity. And I know that we've covered all those cases in great detail and knows that this court composed of six Republican appointees and only three Democratic appointees with three Trump appointing judges has smacked down this president routinely. But lower court judges, perhaps running for the Supreme Court, maybe aren't with the program all this if they're on the right. And that's what you're describing is a situation where the lower court members are incentivized to defy the Supreme Court because the president lacks certain levers over the Supreme Court itself. One lever he has is to appoint a new justice under certain circumstances.

20:57And if those circumstances should arise, then he wants someone who is not in step with the Supreme Court, perhaps. So there is an incentive to, and you just described this, to defy the Supreme Court. And what I was asking before is would it constitute any kind of, and that's an indirect lever, but it's one that can impact on our country because we can see the lower courts perhaps misbehaving more than they would otherwise because of this incentive. But I'm talking about something going the other way where the Supreme Court lacks certain levers over the lower court. You're saying they could ride circuit if they want that they have the ability to do that. That's what you just described. It's not an obligation, but it's an ability. My question was, would that constitute some form of a justice attempting to exert control over a wayward court? Yeah, but it's pretty weak because, you know, the Ninth Circuit has 35 judges and you're going to be on a three judge panel and just only occasionally.

21:58And even if you disagree with them, their incentives still are perhaps to pander to the president. But we're going to do things in this podcast that we're actually trying to be helpful to the system. We write amicus beast because we are friends of the court. So we've named certain judges to shame them actually because the mechanisms of discipline are pretty weak within the judiciary. So for example, I think in previous episode, we singled out Alene Cannon by name for our condemnation because we thought she was actually not acting properly. This was a case involving some top secret or highly classified documents. The Trump was mishandling. It appears as an ex president and Alene Cannon actually intervened in that. We thought in very problematic ways is possible to imagine that she's trying to, she's a

23:01district judge, get his attention and at least a binomial to the court of appeals or maybe higher. Oh, you know, was she actually did her clerkship, Andy, wait for it in the eighth circuit. That's a, the A circuit keeps coming up in today's conversation again and again. But we named her and we did so not to be mean, but to actually contribute to better system. Here's what? And then we said, we're going to be in a position to judge the judges, not the lawyers. They're paid by parties and they're not experts and they don't want to offend judges because they have to argue before them. The Supreme Court is a little awkward. They try to be subtle about the thing. But this is the job of academics. We judge the judges and what we can't be ideally is ourselves partisan. Depending on this podcast, we're trying not to be. That's why we have the Bill Pryors and Kevin Newsom's on the right coming on our podcast

24:03and the Steve Bryers on the left coming on our podcast. We have Steve Calabrasie and Ed Whalen and Linda Greenhouse and Jamie Raskin. So but our job is to judge the judges. Right. But let's be fair and let's name the incentives that you might have that might cause you when some people's eyes to hold back. Now for one thing, you want your best students to be clerks before the Supreme Court so that you want judges to think highly of your opinion. You don't want them to not like you or something like that. So there's that incentive. There's also an incentive to you want to be cited by the court when you make an argument. You want them to pay attention to what you have to say. You're writing amicus briefs to advocate for a position. Maybe it's not maybe sometimes it's a neutral position regarding the parties, but it's a position regarding the law and you want the court to pay attention to that. So these are incentives for you. I would say there's softer incentives, particularly because you're pretty established as an expert

25:06at this point and you have a track record of excellent clerks and the justices and judges have their own incentives to want good clerks. So the incentives can work both ways, but we should be just when I would present a paper as an ophthalmologist, I would have a required disclosure. Here are my financial interests or my possible conflicts and so forth. Now in my case, they never were any conflicts, but at any rate, but there was that obligation. So we should lay that out there a key so that in the interest of full disclosure. Excellent. Let's actually roll the tape and remind our audience of two sets of issues that have risen. One year or two ago, lots of discussion about possible ethical issues raised by travel subsidized by friends of justices. And I tried to explain why I thought some of those criticisms of justice, Thomas and just a salito, for example, were perhaps exaggerated, but we brought onto this podcast a very harsh

26:12critic of those policies, my student caffeine clerk at legal emphasis, in part because I am friendly with the justices and we tried to be self-aware of that possible bias that I might have in favor of people that are my friends and why don't want to annoy or convex. So we did our best and we brought on a fierce critic. Just last week, we got asked a question about the dissenters in the birthright citizenship case and we said we have promised to talk about them in a later episode and we will, but even last week, I called out actually when we were at Princeton, my friends and justices and justices, Thomas and I think we said in highly controversial cases where the justices actually split involving Trump. I can't remember any major opinions where there was an important split on the court where they cited against Trump.

27:13There were some cases where the court was unanimous against Trump and we are going to go through their dissents and audience members just too way. I am going to be pretty darn critical of them and I have in lots of public venues, especially over the last week and maybe we don't need to talk today but maybe in the next episode, I will tell our audience members where I have been in the last week or two and what I have said in some of these places and there are some videos that audience members can access about all of that. So what am I in the sense? Yes, in a short run, maybe an audience member could say, many audience members, I am just too nice to the justices or something because I am trying to flatter them. But in the long run, and I am in this for the long run, I am trying to write books that are going to last for 50 or 100 years, I will not actually have influence if I could be wrong but utterly honest. And I will not have influence. My long term incentive is not to write about my own personal views because who cares about

28:14that, I am going to have influence if I have influence because the books and the briefs really do properly channel what the Constitution in fact says. And if they do, there have been a win in the long run. And so I have incentives to try to be as straight as I can. You have got me to take the catch when you go over the line. Thank you. So let's just take just a moment for our friends that want to get their continuing legal education credits, CLE by listening to this podcast. So we make it quick. Go to podcast.njsba.com. That stands for New Jersey State Bar Association. And after filling out the formula into the code, which this week is 55569, that's 55569. And in New York, New Jersey and Pennsylvania, you're all set. In the other states, you do that plus your reciprocity requirements and you got your CLE. Okay, made it quick this week because we don't know that much time. Okay, now, Achille, we've been alluding to the eighth circuit.

29:16And we talked in recent weeks about this business with the map in Missouri and what should they do and what about the amendment and what about the referendum that's on the ballot and can they use the map, etc. And the Supreme Court gave what appeared to be a definitive ruling after their earlier definitive ruling on the matter. And we're seeing articles of the paper. It's settled. It's over. It's done. Is it done? No, because the eighth circuit keeps coming back to this. There they go again. They're not taking no foreign answer. It was, I would say a rogue district judge and now rogue panel on the eighth circuit. And just in the last couple of days, the eighth circuit once again is pushing back against the Supreme Court, not listening to what the Supreme Court is saying. I predict that the Supreme Court either as a whole on bond or the Circuit Justice Brett

30:22Kavanaugh is going to smack down the eighth circuit yet a third time. Now, for the audience members, if you want more details about this, read VIX stuff. We had him on two weeks ago. He is the expert on this. It pains me sometimes to admit that my kid brother knows more than I do about stuff, but he does in this area. And we have a couple of scotus blog columns that we're going to post once again on this week's episode. He has the Justia column that he just posted a few hours ago that I commend the audience. We'll keep talking about, we'll put this up, we'll put this article up and you can read it and that sort of thing. And for example, VIX article in Justia will put up so that you can access it. Where? Where are we putting it up? Okay. And the answer is, for those of you that don't know, because many people get their podcast by just listening to Apple Podcast or something and then there aren't any show notes on Apple

31:24Podcast. There's the transcript, but there aren't any show notes. So for show notes and for a lot of other information about Professor Amar, by the way, you go to a Kilamar dot com or a Kilamar dot com slash podcast. And there you'll find all nearly 300 episodes and all the show notes for all the episodes. It's a real treasure trove of all sorts of legal materials and very easy to access everything virtually that we put up there. You can download yourself. So I highly recommend that you check out this article by VIX, for example, this week. And that's where you can get it. Kilamar dot com slash podcast. And Andy, a Kilamar did nothing to create this. My friend Andy Lipka did everything to create all of this. It's an amazing resource for all of you and Andy. Thank you. On behalf of actually all our audience for doing this. Those members, if you haven't sampled this stuff, wow, a feast awaits.

32:26Okay. I'm going to just briefly summarize, but I'm going to take a huge step back, Andy, and remind everyone that all of this is like round 43 of a debate about the independent state legislature theory. And I'm Kaval a little bit of all the people in the world. VIX most of all aided sometimes by yours truly has taken a lead on theorizing this the best critique of the independent state legislature theory. And ultimately, VIX and I wrote an article together in Supreme Court review edited by our friend Will Bode who has an affiliated podcast, part of our broader podcast network family divided argument is the name of his podcast with will, both in Daniel ups. We should mention our other affiliated podcast advisory opinions with Sarah Isger and David

33:27French. And so VIX and I wrote an article for a faculty edited journal at a University of Chicago faculty edited by Will Bode on independent state legislature theory and why it was bunk because state legislatures aren't independent. They answer to their state constitutions as construed by state Supreme Court. That's what we said as scholars. And then the Supreme Court took a case and we wrote a brief on that. And then you were very involved in that more versus Harper and we you and I and our team of students Jacob hot and Jordan K wrong and our Sean Barzani and others went to the Supreme Court oral argument to see all that and that was cool. Our friend Chris Duggan was there too. And we won that case actually more versus Harper on our terms. This was our theory. Marcus podcast is actually all these members giving you the cutting edge stuff and Rick Kavanaugh changed his mind.

34:28By the way, he had said earlier things in earlier cases sympathetic to this bad theory and he completely flipped and good for him. And once again, he see back in the news. This is the same Brett Kavanaugh pushing back against the a circuit that's doing a revised version of this stupid independent state legislature theory. But we think we persuade and we didn't persuade him by sucking up to him personally or or something like that. We persuaded him with legal arguments as friends of the court. And now it's coming up yet again in the a circuit. I'm not going to go through all the details. Vic told you basically a lot of stuff a couple of weeks ago. Let me just update the audience brief on this because this is an abbreviated episode. And just in a nutshell, federal courts should not get involved as the a circuit keeps trying to get involved. Because it's too close to an election point one as the Purcell principle federal courts shouldn't mess with elections that are essentially administered by state officials.

35:31And Rick too close to election the ballots are already being printed. No, that's point one point to dammit. They are supposed to be in fear to the Supreme Court and they're not listening to what the Supreme Court is telling them multiple times in this very fact pattern on this set of facts about these ballots and these congressional districts. So bad for them point three, the state Supreme Court has actually already ruled on this stuff. And if the state Supreme Court gets stuff wrong, the US Supreme Court is supposed to sit in a pellet review of them, not federal district or circuit courts across the street. This is a doctrine known as Rucker Feldman. There's some complexities I won't go into about all that, but they are faithless to that. Point four, we've talked a bunch about eerie and the importance of state law is construed by state courts. The essential issues in this case are about state constitutional law and the state Supreme

36:34Court has ruled on those issues. And finally point five, the argument that they're actually making on the federal constitution are completely preposterous. They're saying on the merits, gee, you can't have a final election in November using districts different from the ones you used in the primary. No, no case says that I know the importance of the Supreme Court case. Constitution doesn't say that. Constitution doesn't even require primary elections. These are run by parties. And in any event, the primary election that was held under improper, legally improper district in lines, that was the ruling of the Missouri Supreme Court. Two wrongs don't make a right. They were wrong to use improper math in the primaries. Can't be the case that because they did that first wrong, they must, as a matter of constitutional law, do it again. The second of this is absurd. Now, and they do one more thing in here, maybe you can.

37:35We're going to name the judges, the district judge and the three court of appeals judges who are doing this. They're just a panel of the eighth circuit. And then I'm going to tell you two more fun little facts about the eighth circuit. Okay, so on September 21st, which is two days before we recorded this, the panel that ruled unanimously that Missouri can't switch back to its 2022 map for the general election are Judge James Loken, who was appointed by President George H. W. Bush, Judge David Stras, who was appointed by President Trump, and Judge Justin Smith, who was appointed by President Trump. And they've been supported by the district judge in the case. And that judge is Judge Stephen Clark. Now what we just did, Andy, could be perceived as rude. But given that the mechanisms of Supreme Court control, or as we've discussed, pretty

38:39weak. And I think the job of honest academics is to judge the judges, and Audis members should know two or three things. One, Vic and I did the same thing of a liberal, hyper liberal judge, a Yale law school graduate who was way out in left field on the ninth circuit. His name was Stephen Ryan Hart. This was not personal. But we called to public attention that in one year he got reversed 9-0, per curium, summarily without oral argument, 3 times 9-0 by the Supreme Court and once 8-1, and that was a world's record. And he wasn't even trying to follow what the Supreme Court was telling him to do. He joked that they can't catch me every time. And that, we said, was not a good judge. And he was a liberal. We are on the left. You know what we say? No, you are on a court in the Supreme Court and we're going to call you out. And by the way, Andy, since our audience members, I think some of them always see it just sucking

39:39up or something, my boss, Heather Girk, who's been on this podcast, then D in the Yale Law School clerk for Ryan Hart. And I was calling him out. His portrait used to hang in the Yale Law School and every year, which I'll tell my students, it should not hang. He should not be a role model. He was later canceled. He was a great and appropriate because he misbehaved toward his course because he didn't have a proper sense of role and restraint. The way a great judge like David Souter, for example, had his, my models. So we identify our models. We have tributes to Sandra I and David Souter. So we're trying to identify what a good judge looks like. And those are both the Republican appointees. And we highlight by name 10 Trump appointees that we hold in high regard. And we called out people even on the left when we thought they are not faithful lieutenants of the Supreme Court. So that's one point. Here's the second point. I did the same thing six years ago. These are the eighth circuit. I named two other eighth circuit judges.

40:42I thought we're out of control. They were from Minnesota. I wrote a piece because I thought this is my job as an academic because they're not sufficient checks against and rogue judges. In 2020, I wrote a piece in the New York Daily News criticizing two other eighth circuit judges. I thought we're truthfully Republican, Hackish judges in an election case. And it featured their names and their pictures. And here's the interesting and hilarious thing because we've been talking about all the circuits that I've been invited to and what my incentives are on all the rest. I think over the years, I've been invited to do circuit events at I think almost every circuit. The first where I clerked in New England, the second New York based, the third mid Atlantic that includes New Jersey and Pennsylvania, the fourth, which is a little bit further south. The fifth, which is Texas, the sixth and the seventh in the heartland.

41:44I think I've done all these. I just said I did the ninth. I've done the 11th. I've done the DC circuit. I'm about to do the 10th to one circuit. I think I have not been invited to is the eighth. This is interesting to me. I don't know your breath for that ticket to Kansas City. But my job is to umpire the umpires. And I may fail, but I actually think this is my obligation because very few other people have the expertise and the incentives to try to honestly say, look, this is an honest judge. I disagree with them. This is the correct decision, well done. And wow, this is off the reservation. And they should pay a price for this because they think that they're just benefit and maybe actually they're happy that I'm attacking them because this will move them higher up on Trump's agenda. But we call it as we see it on this podcast. So look, it seems like a dysfunctional set of incentives in the end.

42:45And it's all in the name of independence, right? Life tenure and so forth. But is it too high a price to pay? What can be done? One final point, Andy, because this episode, though, short though, it fits with our previous episode. That first judge you mentioned, who appointed it? Judge Loken. But James Loken was appointed by President George H. W. Bush. And how old is Judge Loken? Judge Loken is 86 years old. And so Andy, what you said, what can be done? One thing that can be done is we actually have to talk about whether arteries harden. And we have an idea, of course, for the Supreme Court. And it wasn't about lower courts, but this is not true of all elderly folk. I have a dear friend who we took, elevators, he's 93 years old and sharp as the tack. But maybe the time has come for this judge to step down and take senior status. Okay, but on the other hand, pointing out that he's 86 years old, he's not lobbying for the Supreme Court.

43:45No, he's too old. He's not going to be appointed to the Supreme Court. No, so, David Strauss is 52. So and he's saying, just and Smith is 41. Yes. And they're saying, look at us. And I'm saying, we're looking right at you, judges. We are. Hey. So, but anyway, just to ask my question again, and by the way, Judge Smith previously served as the personal lawyer to Donald Trump. And so that I think is also interesting. And he hears what we've done on this podcast over the years. We said, here are 10 Trump appointed judges that we admire. Good students out there. You should be aspiring to be like those people. And you should be trying to, if you have the credentials, apply to them and clerk for them. And we're saying, that's not true of everyone. That's what we're doing on this podcast. We're giving people in the ecosystem information about who we think is doing their jobs well and who we think are not doing their jobs well.

44:53Okay. So it's short this week, but we did bring up an interesting issue, I think, about the relationship between the Supreme Court and inferior courts. And I think that's an important one that we've identified. And the court is getting ready to reconvene first Monday in October. So it looks like I may not get my week off that I've been talking about all summer. Maybe it'll be next week. So therefore, I have to take a moment to give a shout out to my wife that has put up with this Wendy Leptag on the occasion of our wedding anniversary. And so a shout out to her and of course to a Keele's wife, Benita, who will support us in doing this, this chore every week. Although it's not a chore, it's a pleasure for us, but maybe it's a chore for them. So anyway, happy anniversary to my wife, Wendy. And we recently had an anniversary too, just a couple of weeks ago. And she won't believe this when I say it, but actually in my mind, she's my Supreme Court.

45:54Okay, until next week or the week after. Thank you. Thanks Andy.