Durban. Welcome back. Judge Jackson yesterday you and I discussed
the courts, increasing reliance on issuing unsigned orders and its
shadow docket.
And less than an hour ago. Um the court once again use the shadow
docket to throw out Wisconsin's redistricting maps.
And because this decision just came out. I don't expect you to have
immediately reviewed it. Um, but I just want to make this point that
in her dissent
Justice Sotomayor. John, joined by Justice Kagan called the court's
move unprecedented. She noted that in an emergency posture, the court
summarily overturns Wisconsin Supreme Court decision resolving a
conflict over the state's redistricting, a decision that was rendered
after a five month process involving all interested stakeholders.
Based on an obligation that is, they sell her words hazy at best,
even though summary reversals are generally reserved for decisions
in violation.
Of settled law. Um and again. I don't expect you to be familiar with
this case. But I do want to point out that this underscores the point
that I made yesterday that the courts increasing practice of using
the shadow docket to decide cases that have grave consequences for
our democracy, including the right to vote.
That you and many other nominees have said. It's fundamental is incredibly
troubling. You had in the other case I mentioned yesterday where
Justice Roberts dissented.
The Texas abortion Bounty hunter case
that that should not have been done and the shadow docket. And while
I'm not going to ask you about this because you couldn't possibly
have read it
Just your record of writing decisions that are thorough and listening
to litigants in cases Could you just generally talk about the importance
of having full briefings on the merits as well as public oral argument
if you believe in transparency?
Thank you, Senator as um as a judge in my work over the last decade.
I've seen that it is very important, at least to me in my
Time as a judge up to date.
To hear arguments from all sides in a case.
The duty of a judge in in
Um, is to make determinations and, um, under our system of adversarial
proceedings, you make determinations.
Um, based on arguments um and
And it's important to do so.
I know that, um, with respect to the emergency docket, I, um you
haven't asked me the question about it. Um, because I would say what
I said before, which is I would benefit from being able to speak
with
The justices. I understand that there is a need to balance um, getting
full briefing with emergency circumstances and the court has long
had and it's um
In its procedures, the ability to, uh to rule quickly on various
cases. It's also
Um
My understanding from my time clerking on the court that the court
does.
Recognize the value of allowing things to what we call particular
eight, meaning lower courts to hear issues and my understanding is
that at least in some
Of the recent cases, the justices have have had oral argument related
to some emergency matters, but from my perspective as a judge in
the work that I've
Been doing. I know that it's important to hear from the parties.
Another hallmark of your work has been taking complex issues and
making them accessible to the public. So much so that I actually
referred to one of your opinions from a debate stage in Los Angeles.
Saying As a wise judge said those were my words. I guess I was ahead
of my time. The president is not King in America. The laws Qinghai
paraphrased it. That was a written opinion that you wrote. That was
over 65 pages.
Long relied extensively on Supreme Court and circuit precedent was
committee on the judiciary the McGann and Could you talk about really
two things? The importance of
Having the law written in terms that are easy to understand by people.
And then Secondly, your opinion was actually a narrow one. Uh, it
required
Mr McGuinty appeared to testify but said he remained free to assert
any legally applicable privileged in response to the questions asked.
So, what you did there I was, in narrow opinion. What? What role?
Do you think that narrow rulings play in helping to maintain the
legitimacy of the court? Why is it important to have plain language
in orders?
Thank you, Senator. Um well, I'll start with the 2nd 1st. I think
that, um, you know, as as we've been discussing
We have a rule of law in this country, which, um, requires a certain
amount of predictability and stability in the law.
If there are big shifts in terms of legal principles and doctrines
and whatnot, Um
It could lead to people not understanding that judges are ruling
on legal principles. It could lead to undermining public confidence,
thinking that judges are
Injecting their own policy preferences rather than following the
law in in in terms of their rulings, and so, um to further
Predictability stability. There are many doctrines in, um judicial
practice their story decisis, which is the principle that if something
has already been decided
Um, very similarly. You at least if it may be binding on you, if
you are a lower court, but at least you have to contend with it,
because that is the law that was that existed before you got the
case, and you don't want to make a big shift.
Um
And then there's also the principle that, um you know the understanding
that when you are announcing, uh,
rulings you are building on what exists before and so not so you
don't want to make a big shift if you don't have to.
Because
if you can find a way to rule incrementally in a more narrow way
it keeps the law stable is a part of
The proposition that I that I mentioned before, Um in McGahn in particular.
It was, um
It was a case in which there was a precedent directly on point from
my district. It was not binding on me. But the exact same set of
circumstances and arguments had been
Presented to another judge in my district. I believe it was something
like 10 years prior to my case, and so we had a law that governed
the circumstance and I looked at that determined it was
Persuasive and that I should continue, uh, the principles that had
been laid down by by in the prior case.
Um, also, um, in accordance with those principles, Um
The prior judge, and I made the determination that when the president
Um, claims absolute immunity. The argument was that
The person who had been subpoenaed by the legislature.
A former employee of the White House.
Um
Could
Could say that they had immunity of some
Sort, in. Other words could have, uh, invoke executive privilege
in response to particular questions, but they couldn't say.
I don't have to show up at all. And so the argument that was being
made was when the House of Representatives issues a subpoena and
says, show up on this day at this time to answer questions.
Does that person can that person just ignore and and say I have immunity?
I don't have to follow. Um the law. In other words, respond to the
subpoena, or do I have to show up and sit there and listen to the
questions And if there are things that I believe I can't answer.
Because their privilege than you invoke the privilege and the prior
case had said in this narrow way.
You have to show up. You don't necessarily have to give the information
that's determined on question by question basis, but you have to
show up. Um and that's what I held.
In that case as well and it and it's important to be clear in your
rulings so that people understand that judges are ruling consistent
with the law and not their own personal views. Right and
Speaking being clear and being careful in your rulings some of my
colleagues have, I think, given
not necessarily true view of your whole record, because when it comes
to your rulings being upheld, the numbers show that out of over 550
cases.
Your district court cases you're reverse less than 3% of the time.
And in some of the instances you're reversed only to have your decision
later upheld.
I noticed one case territory of Guam, the United States
in which you were initially reversed. But then a unanimous Supreme
Court reversed that decision.
In siding with you. In an opinion written by Justice Thomas
and aligned with your view, Do you want to quickly talk about that
case?
Um well, that cases kind of legally complicated. It was. It was a
circle at case which is a Superfund cleanup kind of case where the
country of bomb which had which has a dumpsite on it?
That was used by both the citizens of Guam and the United States
before the 19 fifties, when the United States was stationed there.
Military operations happened out of Guam, and there was a lot of
dumping into this site and, um
Over time The site got contaminated and, um Guam was charged with
having to clean it up, which is millions and millions of dollars,
and there are statutes very complicated statutes about the circumstances
under which you can seek contribution.
Under which country like that can ask for the United States to pay
some of that cost or other countries to pay some of that cost. Um
and that was sort of the nature of the dispute, and I did a statutory
interpretation about, um
Whether or not Guam's action could proceed. The United States filed
a motion to dismiss saying that all of the technical requirements
of the law weren't met. And that's the um action had to be dismissed.
And I denied the motion to dismiss after interpreting the statute,
saying that
The action could continue. Um, the D C circuit reversed. My view
had a different reading of the statute, Um, saying that the motion
to dismiss should have been
Granted and dismissed the case. And then it was appealed to the Supreme
Court. And as you say, the Supreme Court reinstated the action, saying
it could proceed. Very good. Thank you.
In 1972 in Branzburg v. Hayes 54 Court, I did not recognize the reporter's
privilege in the context of criminal grand jury testimony.
And I spoke with you earlier at length about times, you Sullivan
and First Amendment issues, So this will be my last question on this.
Since the court's decision, my state like many other states, enacted
strong reporter's privilege laws to protect journalists from having
to divulge and published materials.
Confidential sources. How would you approach balancing the need to
protect journalists and the role they play in informing the public
against the need for law enforcement officers to gather information?
I would apply, um, the precedents of the Supreme Court in this area.
It would depend on the circumstances
as as I mentioned, um
Press freedoms is one of the
Fundamental First Amendment rights. Um the court has
a number of precedents in terms of expressive freedom Press.
Freedom. And, um, in every case, um, there will be a specific set
of circumstances regarding an alleged violation of the right.
And the court would need to look at the facts and circumstances.
The prior precedent in order to determine whether that particular
regulation, um
Could be upheld. Okay. Thank you. This is my very last questions
chair before all of us get to eat lunch, including you. Um and that
is really the important role of dissenting opinions. Justice skins,
Berg once said this, she said descent speak to a future age. It's
not simply to say my colleagues are wrong and I would do it this
way.
But the greatest dissents do become court opinions and gradually
over time. Their views sometimes become the dominant view. Um, when
Justice Ginsburg is rabbi gave a eulogy at her memorial service here
in the capital
And some of us were fortunate enough to be there. Uh, they said Justice
Ginsburg's dissent. We're not cries of defeat, they were blueprints
for the future.
What do you think is the purpose of a descent and, um you want to
talk just a little bit about that this idea that they can be blueprints
for the future.
Thank you, Senator. Um, on the Supreme Court. There are nine justices
and, um
In every case, they're all sitting together to hear, Uh, the issues
in a case and, um
One hopes and and it often happens that the justices, um agree as
to issues in cases that I believe that the vast majority of cases
that the justices here are actually not
Um, there. There is no dissent that they they agreed to the outcome.
But there are cases in which after deliberation and collaboration
and
Consideration. The justices may disagree about how, um how the case
should be resolved, and there's a mechanism for every justice to
decide whether they're going to join others.
Either in the majority, whether they're going to write a separate
opinion that might agree with the majority, but wants to make a different
point, or whether they wanted descent and sometimes more than one
justice might descent or join a descent.
It's a way of, um, expressing expressing one's own view. That may
differ from, uh from your colleagues and with respect to the point
That you made, um
There are actually many justices in history who have used the descent
mechanism to discuss the law in ways that others find
Over time to be more persuasive. And so I'm thinking of, um I'm thinking
of the first Justice Harland, who dissented famously in Plessy versus
Ferguson.
E dissented alone. Um All of the other justices agreed, um, with
the proposition of of separate but equal, and he said no in a descent
and his descent.
Generations later became, according to Justice Thurgood Marshall
became the blueprint for Justice Marshall to make arguments that
led to Brown versus the board.
So there is the opportunity
for justices to describe their views in ways that become persuasive
to others in the future.
Thank you for all you've given us the last few days. We look forward