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I am your host this hour and also next hour this of course our weekly weekend review of all things related to the rule of law justice and government no disappointment in those areas in this weekend broadcast a lot to cover as always delighted and honored that you have chosen to spend some of your weekend with me and my producer Max where together we're always taking your questions
Your inquiries, your comments, your observations, that phone number here at Civic Media is 855-752-4842.
One more time, that's 855-752-4842.
Max always reminds me that you can drop your comment or your inquiry also into the Civic Media chat box.
And we will take a look at that and make certain your voice is heard on this broadcast.
Once again, a lot to cover.
It has been a significant week in the area.
of rule of law, lots of passages, lots of changes.
We're gonna spend a little bit of time, of course, talking about the recent selection by the College of Cardinals of a new pope, but that in connection principally with his statements of the past, while he has been a bishop about immigration, about migrants and about refugees, lots of things related to the rule of law there, lots of things to suggest that this pope
Like the previous pope is going to be a pope about the rule of law commenting on things in the international arena, certainly the head of state there at the Vatican.
The head of the Catholic Church on the face of this planet, but also more than that.
More than that, we'll talk a lot about that.
Also in connection with some decisions and actions and pursuits undertaken by federal district court judges just this past week in connection with the single largest immigration matters pending right now in the federal courts in front of judges.
You know their names, Boseberg and Zinnis.
We'll talk about that.
But we're gonna begin this hour in focusing on another court, and that is the United States Supreme Court, promised at the end of our broadcast last weekend that we would share with you some things said recently by a sitting Supreme Court Justice, her name, Associate Justice Katanji Brown Jackson.
She is, as you know, a Biden appointee to the court.
She is the newest appointee on the United States Supreme Court, members of nine altogether.
We're gonna talk about some things that she said recently in connection with a major judicial conference in Puerto Rico Hinted at that at the conclusion of our last broadcast last weekend We're going to go into that in greater detail and then significantly importantly in connection with the United States Supreme Court We're going to spend a good deal of time this weekend talking about a Very important member of the Supreme Court from our history who died this past week.
His name is David Souter
He was Republican Justice who in many ways, allied himself with the court's so-called liberal wing.
He died at 85 in his home in New Hampshire.
We're going to talk about the significant things in his life.
We're going to talk about the impact that he had on this nation and continues to have even after his passing.
A lot about his personal story, a lot about his disdain for Washington DC.
His retreat at the very early age of 69
back to New Hampshire, ending his Supreme Court tenure fairly early, and then talk about some major cases in which he was involved, including, for example, Bush versus Gore, Casey, which was, of course, that significant abortion case, the way in which he came down on those cases, and yes,
The legacy that remains with him to this time, even in his death, and that is this phrase, no more suitors not declared joyfully by anyone, should be declared by anyone in the United States, but that the mantra of political people who were surprised and frankly dismayed when he took the bench and notwithstanding his description as a conservative judge and justice, became a part at least of the centrist portion of the court and frankly,
with many members on the so-called left side of the court, producing opinions, producing views that were a product of his view, his view about what the Constitution says, a living, breathing Constitution that dismayed many people.
on the right side of the political aisle, and therefore said, no more suitors, we can't do that again.
Surprise to many people, again, on the left and the right.
Nonetheless, a man of great integrity on the Supreme Court will talk about some of those cases, will talk about David Souter and who he was, necessarily also then getting back to the current Supreme Court, talking again about a major decision it rendered, issued just this past week in the area of trans
gender, troop entitlement, a shocking matter in connection with civil rights and human rights in our nation.
We'll talk about a couple of other cases and then do some demographics, some statistics there from the Supreme Court about the number of cases it has pending right now.
We are about to enter into that time period when indeed the next six weeks the Supreme Court begins to issue major decisions.
It's got about almost 40 cases, almost 40 cases yet to be decided, probably between now
and early July when it typically doesn't pack up shop but nonetheless concludes the majority of its action in this the 2024 2025 term we're going to talk with you a bit about those cases as well and then yet another supreme court this one in north carolina we have not covered this in great detail on amicus a law review but it has been percolating up for weeks and months and finally finally just this past week
an elective decision coming out of the state of North Carolina, a state much like Wisconsin in terms of its present political demography and demographics there, a state that finally, through the work of a federal district court judge,
Resolved a long-standing dispute about who won an election, a race for the North Carolina Supreme Court.
We'll talk with you about the successor.
They also ran in that case, and some of the lessons being pulled from that particular project, that particular race, and the things that we can understand from it that may in fact be applicable for us here in Wisconsin and candidly throughout the United States of America.
Many, many things to get to here on this weekend edition of Amicus.
always taking our name, amicus, the Latin, the legal phrase for friend, providing information and doing that in a way that will give you the opportunity to make decisions about your views on these significant rule of law and government and justice related matters.
Things that plainly have always loomed large in the history and the livelihoods of all of us, but now especially true in 2025 as we attempt collectively together to understand what all of this is about in that connection.
Once again, Max and I invite your questions, your inquiries, your comments at 855-752-4842.
Become a part of our discussion here on Amicus.
That discussion beginning now with, as I promised, the words of a sitting associate justice of the United States Supreme Court, her name Katangi Brown Jackson, now is fairly routine.
for each of the justices during the course of the year.
Typically, in the springtime sometimes, the summer as well, for justices to visit their particular assigned circuit.
We have an assigned circuit court judge here in this circuit, a Supreme Court Justice.
Her name is Amy Coney Barrett.
She used to be a circuit court judge in the Seventh Circuit.
And she is now the one who is assigned to us here in the Seventh Circuit.
That's Wisconsin, Illinois, and Indiana.
Katangi Brown Jackson, responsible, if you will, for the management of oversight and cases that may come out of the First Circuit, and that includes Puerto Rico.
And she was at a major judicial conference, which all the justices attend in their particular assigned areas at about this time of the year.
She went there to Puerto Rico and she forcefully condemned the attacks, although she did not use his name.
plainly speaking about the attacks by President Donald Trump and his allies on judges, attacks on the judiciary, and talked about the consequences of that continuing assault and described the hostile rhetoric and the potential impact that it has, not just on the political fabric of America, but also on the judicial
fabric of our nation as well.
This is what she said.
She said the attacks, again, not identifying the White House by name, but she said the attacks are random.
They seem designed, she said, to intimidate those of us who serve in this critical capacity.
She went on to see the threats and harassment are attacks on our democracy, not just on the courts, on our system of government, and they ultimately risk undermining our Constitution.
and the rule of law.
Words that are very reminiscent of the words issued in those scathing dissents, rather, by the Supreme Court justices back in July of last year, responding to the decision of the Supreme Court to find that a sitting president has immunities from prosecution.
You will call well that Elena Kagan and Sonia Sotomayor, colleagues of Kadanji Brown Jackson, issued these opinions
talking about the same kinds of things, the threat to democracy and the concerns, the fears that they had about the future of our nation, those kinds of messages, the important non-hyperbolic messages being conveyed by Katanji Brown Jackson.
Again, she did not mention Donald Trump, our president by name, but she said she was addressing the elephant in the room.
a clear unmistakable reference in this judicial conference to that belligerent language.
And she called and she called specifically upon all of us to push back on that and say this is not what we're about.
She urged her judicial colleagues to show raw courage, those words, raw courage to dispense justice without fear of the results of doing that, pushing back from the bench in the writings and the things that the justices and judges say.
She said this, I urge you to keep going, to keep doing what is right for our country and I do believe that history will vindicate your service.
Now these unusually pointed comments in about an 18 minute address again presented to judges in the first
circuit meeting there in Puerto Rico.
She went on.
She went on and she said, it seems as though every time I read the news or turn on television these days, I see a front.
And she went on to say that, of course, she knows that loneliness.
She said, I do know the loneliness that you're experiencing.
She said, it is very stressful to have to decide difficult cases in the spotlight and under pressure.
It can sometimes take raw courage, she said, to remain steadfast in doing what the law requires.
An affirmation that we are a nation of the rule of law is what she is articulating.
She pointed to similar attacks on judges who had issued controversial decisions during the civil rights movement and in the Watergate scandal.
Those predecessors of hers in the Supreme Court, in the appeals courts, in the district courts, she urged her colleagues once again to take inspiration from those important examples.
She said this in concluding her important remarks to the judges of the First Circuit, the practitioners of the First Circuit.
She said, other judges like us have faced challenges like the ones we face today and have prevailed.
A call to prevail in America by Katanji Brown Jackson, our newest Supreme Court Justice, speaking to judges, speaking to all of us here in America.
In 2025, when we come back, we'll hear about another justice of our history.
His name, David Souter, stay with us for that analysis and that review of his tenure on the United States Supreme Court.
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My name's Jim Santel.
I'm your host this hour and next hour as well.
As we talk about history, but also talk about the lessons we pull from that history, we're going to necessarily appropriately decently spend a good deal of time now talking about former Associate Justice David H. Souter.
His life stands as lessons to all of us.
about predictions about how judges act and behave and the way in which they decide cases.
We're going to talk about the importance of what he brought to the Supreme Court, talk about some of the specific engagements he had on some major landmark cases that many of our listeners will recall well, and then talk about the broader legacies, the broader legacies that his life
provides for us here in 2025.
David H. Suders from New Hampshire, of course, named to the Supreme Court by President George H. W. Bush.
He served on the United States Supreme Court for a little over 19 years, 19 years, certainly not the longest tenure by far of any justice.
And indeed,
when he retired at the unusually young age of 69, that came as something of a surprise to many people because, again, 69, not an especially old age for Supreme Court justices, or for that matter, for a lot of our representatives in Washington and in other places around our nation.
But one of the lessons, one of the things pulled from his life was he was not pleased.
He was not happy to spend his life
in Washington, DC.
He was not a part of the mainstay social life there.
And so he went back to his beloved New Hampshire.
And it wasn't Concord, New Hampshire, where later, early this week, David H. Souter died.
He was 85.
His death announced by the Supreme Court on Friday of just this past week, didn't cite a cause, saying only that he had died peacefully.
David Souter retired again at the end of the 2008-2009 term.
And what he specifically did at the time was he gave then President Barack Obama a Supreme Court vacancy.
He plainly let it be known that he was retiring at that time because he, and not earlier because he did not want to give George H.W.
Bush an opportunity, an opportunity to appoint his successor.
And so indeed,
Barack Obama appointed the justice who now encumbers the former seat of David Souter, her name, Justice Sonia Sotomayor.
By the end of the second year on the Supreme Court, Justice Souter had acquired the label that would stick for the remainder of his tenure.
It was unfair, it was not complete, it was not accurate, but nonetheless it stuck because of the surprises that he presented as he became and worked on and announced decisions and lots of dissents.
and currencies in major cases.
He was the justice who surprised the president, George H. W. Bush, who appointed him, anticipating that justice suitor would be conservative in line with the so-called conservatives on the bench.
He left conservatives very disappointed, and his migration on the bench over the period of almost 20 years on the bench prompt an awful lot of people in the political arena to say, in the future, we can have no more suitors.
the mantra, no more suitors.
We can't do that again.
That is where we appoint someone who we think is going to be of a particular political view.
And it turns out that they are not.
Those who express that surprise either implicitly or directly accused, just a suitor of having portrayed himself one way, turning out to be something else.
really failed to understand who this man was.
And even in his testimony, in the course of his review, his nomination proceedings before the Senate Judiciary Committee, it was clear that he was going to be his own person.
He was going to be someone who understood the Constitution of the United States of America to be an active and vibrant and alive document.
He is not, was not, and was not going to be an originalist, a literalist, a textualist.
He portrayed himself as he was throughout his career.
He was a judge of conservative instincts, yes indeed.
He said that he took his role model after Justice John Marshall Harlan II.
That's the Supreme Court Justice you may or may not know about.
He was a lawyer, that is Harlan II, and an Eisenhower appointee way back then who was often in...
the dissent during the heyday of some of the Supreme Court's liberalism during the time of Chief Justice Earl Warren.
During the course of Justice Souter's confirmation hearings, he was questioned by Charles Grassley.
Yes, Senator Grassley was there then.
He is there today.
And during the course of that questioning by Senator Grassley, you know him, he's a conservative Republican from Iowa.
Senator asked him for his views on what's called judicial activism.
We all know those words.
And government by the judiciary, of course, the notion of those questions, those comments being, you judge suitor, soon to be justice suitor, you will not follow the path of a judicial activist, will you?
And of course, code words that probably perked up the...
nominee, Justice Souter at the time, Justice Souter did not take the hint, or at least decided to go in the opposite direction, to be the person that he had been back in New Hampshire, and yes, indeed, right before that, as a judge on the United States Court of Appeals for the First Circuit.
Justice Souter, soon to be Justice Souter, said to Charles Grassley at that time this, he said, courts must accept their own responsibility for making a just society.
Say that again, courts must accept their own responsibility for making a just society.
Elaborating going on beyond that and already getting some eyebrow raising at the time.
He said that both the nature and the constitutional responsibility, the obligation of courts abhor a vacuum.
That's a phrase you've often heard.
But what that means is if there's a vacuum, the courts act, right?
He said that if there is in fact a profound social problem,
if the Constitution speaks to that, and if the other branches of government do not deal with it.
Ultimately, it does and must land.
This is candidate nominee suitor.
It must land before the bench of the judiciary.
I suspect at the time that Charles Grassley, the center from Iowa, was somewhat surprised by this.
He also raised alarms, that is Justice Souter, during the course of his testimony when he praised Justice William Brennan.
That, of course, a justice, a court's liberal leader who retired earlier, the age of 84.
Justice Brennan would be remembered as one of those fearlessly principled guardians of the American Constitution that we've ever had and ever will have.
That's the way that Justice Souter described Justice Brennan as a previous member of the Supreme Court.
During the course of the time on the Supreme Court, again, that independence of Justice Souter, that notion that he is going to be a judge interpreting and understanding a living constitution, came to life.
And yet there were hints, not only in that nomination procedure, but also in the 12 years before that, he had been a state judge in New Hampshire.
He was on the bench.
He knew what he was doing.
This was someone who's eminently qualified.
And during the course of that time, as he did when he was
on the Supreme Court, wasn't giving speeches, he wasn't writing articles, he wasn't taking positions on any hot button issues out there, and it prompted an awful lot of people to wonder who this fellow was.
He, of course, grew up in a very modest farmhouse coming from Concord, New Hampshire.
It belonged to his maternal grandparents at the time, valued in 1990, about $150,000.
That's the home to which he retreated after he resigned and retired.
It's about $370,000 in today's money.
During the course of that period of time, again, lots of indications that Justice Souter would indeed, would indeed,
pursue his own course.
And when we come back, we'll talk about that course and the ways in which Justice Souter defined for himself and for the nation his view about what a Supreme Court Justice should do and be, interpreting the Constitution as it needed to be required in the contemporary terms, all of that coming up on Amicus, a law review.
This is amicus a law review.
My name is Jim Santel your host again this hour and the next hour as well David Souter died this past week at the age of 85 He was an icon remains an icon Supreme Court the legacy that he left is all about our discussion This weekend on amicus talking about the modesty the humility of this man coming from New Hampshire
a state court judge, a first circuit appeals court judge right before he takes the Supreme Court bench.
When he's in Washington, he rents a very small apartment not far from the court.
He furnishes it fairly sparingly and throws himself into his work according to all reports when he is on the bench for almost 20 years.
He eats at his desk and that was yogurt and an apple, core and all.
After working
At the court during the day, typically he would run for exercise at a track in a nearby army base there in Washington, DC.
2004, relatively notoriously, he was mugged while jogging in a neighborhood.
a random crime that actually was never solved.
The mugging, I guess, of course, when a Supreme Court justice is himself, herself, a victim of crime gets a lot of focus.
Justice Souter, that happens on Friday night.
Justice Souter, the day after that, Saturday morning, back in his chambers, working as usual, very next morning.
the justice, the future justice, as I said, was first on the First Circuit Court of Appeals.
He was promoted there.
The candidacy, the nomination there, pulling him from New Hampshire by a friend of his named Warren Rudman, a Senator Warren Rudman at the time.
And of course, the First Circuit, as we learned from our recitation of Katanji Brown Jackson's words there, First Circuit is Maine and Massachusetts and Rhode Island and Puerto Rico, and then also New Hampshire.
So he serves a relatively
a small period of time, about two months, on the First Circuit Court of Appeals, and he is sworn in there for that position by Stephen Breyer, sworn in on November, May 25th of 1990, Justice Souter participates in only a couple of cases when he's on the First Circuit there, and then what happens is he's summoned to meet with President Bush.
July 22nd of 1990, Justice Souter reports later on that he assumed he'd go home empty-handed because, well, he thought he wasn't going to be a likely candidate for the Supreme Court.
He was on a shortlist, again, based upon Senator Rudman's advocacy for him, thought he'd go home back to New Hampshire after meeting with President Bush, did not even bother to pack an extra suit.
In fact, he ended up staying in Washington, DC a week and reporters and photographers, of course, are following his every move.
They're asking, who is this?
Who is this judge coming from the first circuit, coming from New Hampshire and the judicial assignment there, following his every move in and about Washington, DC?
He pays the obligatory courtesy calls on members of the Senate as it's clear that the president has nominated him to become a Supreme Court justice.
One of the reporters at the time notably asks him, says, Judge Souter, how does it
field be plucked up from obscurity.
And the assumed to be justice Supreme Court suitors says, I didn't realize I was that obscure.
He returned home on Friday, proclaiming it had been the worst week of his life.
Well, the weeks and years that followed may or may not have fallen in that same category, but again, the years that followed were years of surprise for people, court watchers, for all Americans.
His first term in the court, a fairly quiet one by all accounts, if you look back in history.
about the future of Roe versus Wade.
Again, the case that was reversed in 2022, just a few years ago.
Already, already the subject of an awful lot of attacks.
A Supreme Court colleague.
His name Thurgood Marshall had retired, replaced by Clarence Thomas at the time.
And there's a new case, a new case.
It follows up on Roe versus Wade.
You remember this.
It's called Planned Parenthood versus Casey.
And it was argued on April 22nd of 1992, before the United States Supreme Court.
An awful lot of people thought, again, that with Clarence Thomas' arrival and with the arrival of David Souter also assumed to be a conservative justice, this was the time.
that Roe versus Wade was indeed going to be overturned based upon the advocacy.
The result, of course, as you know, the history of our nation was just the opposite.
Justice Souter, who was joined by two other Republican-appointed justices, you know their names, that was Sandra Day O'Connor, remember this, and Anthony Kennedy.
Anthony Kennedy, who had earlier expressed some significant doubts also about Roe versus Wade, kind of signaling that he also might be willing to overturn Roe versus Wade.
All three of them came together to produce a highly unusual, very atypical, caught a lot of people by surprise and opinion.
And it was sort of fractured, lots of different pieces, but it reaffirmed in this case called Casey, 1992, the constitutional right to abortion.
And again, Justice Souter was a part of that affirmation.
Justice is Harry Blackman, of course, John Paul Stevens, also a...
representative of the people, but also appointed by a Republican president, his name is Gerald Ford, assumed likewise to be a fairly conservative justice.
John Paul Stevens by this time has moved to the center, if not also to the left.
And so we give this consortium of five justices who support abortion rights in America.
In that casey case, 1992, the trio, interestingly, announced the result from the bench.
On the final day of the term, it was June
29th, 1992, again, late in the term.
But again, we know that June is the big month for the announcements.
And according to all reports, the audience at that time is just quite literally spellbound by what they're hearing.
They each read in sequence, that is, Souter and O'Connor and Kennedy.
And they summarize their parts of this sort of collaborative opinion, just as Souter's portion emphasized, starry decisis.
That is, it's important for us to continue in appropriate circumstances with
what the law is, not upsetting it.
Not upsetting it just because we can.
Plainly an issue, an issue that was loomed large and was a major factor in the recent decision by the Supreme Court to dropkick Starry DeCises.
and overrule Roe versus Wade a few years back, saying, no, no, that doesn't apply.
But at the time, at the time, Justice Souter advising all of us, instructing all of us, that Starry Decisors is Latin for it to stand by what has been decided and not to overturn those kinds of things, an adherence to precedent.
The court was under political attack for its abortion ruling, he said, and the justices knew well.
They understood very, very well all of them, including five who were in the majority and the four in the minority, that their opinions were being very, very closely watched.
And yet, and yet all of that highly predictable.
based upon what Justice Souter had said during his confirmation hearing.
During his other comments, again, about the notion of a living constitution that we are all alive in contemporary times, and the law, while it should not be fractured, should not be thrown around, nonetheless should respond to the political times, the reality times in which we live.
Another major event in the life and the history and the presence on the Supreme Court
of Justice Souter comes with Bush versus Gore.
His alienation from the conservative side, his movement toward the center, and then frankly, to the left again, prompting an awful lot of people once again to say, no more suitors.
We can't do this again, getting a justice who is not, it turns out, what we thought he was.
We know that during the 1990s, Chief Justice Rehnquist is pursuing his so-called federalism revolution.
in a series of five to four rulings at the time.
The court is looking at what the Congress across the parking lot is doing, and it is addressing whether federal laws can stand, specifically federal laws related to the work of state governments.
And Justice Souter, in connection with a whole series of cases there, writes a whole bunch of dissenting opinions at the time.
And he also writes some dissents from rulings that open the door to greater accommodations in religion, in public life.
All very interesting in this movement from the Justice Souter that everybody thought we knew, to the Justice Souter who is on the bench.
His most bitter moment, however, as a dissenter comes in Bush versus Gore.
You all know what that's about.
This is the hotly contested election between...
the vice president, Al Gore, and again the governor of Texas, George Bush, a five to four decision ultimately from the Supreme Court.
That ended remember this well they this disputed Florida recount the Supreme Court there in the state is directing that officials there the state election Commission the counting continue to try to figure out who exactly got the most votes in Florida We know in the end based upon post decision and post election review that actually Al Gore won the majority of the votes It was just a few hundred votes six hundred seven hundred votes in that state, but at the time it was unclear
And the question was, should the counting go on?
Should the attempt to try to make this precise go on?
And indeed, indeed, the Supreme Court issues this five to four decision in that hotly contested 2000 presidential election saying, stop the counting.
Stop the counting.
Freeze things where they are right now.
And at that time, George Bush
had a slight, a modest lead in that counting process.
Well, David Souter, again, according to later accounts, watched.
He said it was appalled as the court accepted jurisdiction of the appeal by lawyers for Governor Bush from Texas.
who was again ahead in this process just by a little bit for Florida's 25 electoral votes.
It was important as a major news station at times said it's Florida, Florida, Florida, right?
That was Tim Russert.
You may remember that well.
And everything in 2000 depended upon how Florida went.
25 electoral votes to Al Gore would have given him the presidency.
25 to George Bush would have given him the presidency.
The Supreme Court comes along and says, stop the counting.
Mold everything put everything in place where it is right now and for that reason the the Electoral votes and the presidency go to George Bush in Bush versus Gore with the December 12th
deadline looming for the selection of electors.
Again, as we normally do, we talked about this again just recently, not too many months ago in the wake of the 2024 election.
A December 18th date set for the Electoral College then to meet, right?
They get together and they come together and they determine exactly what the overall count is.
The courts focus on all this intensifies.
And on December 9th, the justices voted five to four to issue a state
of the statewide recount.
Stop that counting in Florida that had begun just hours earlier.
You may recall well, those of you who are watching this at the time, an awful lot of, of furtive activity.
The case was argued on the morning of December 11th, decided in favor of Governor Bush of George Bush late night on December 12th.
The nation was riveted to all this and in dissent, in dissent, justices Ginsburg, not surprisingly, Justice Breyer,
Justice Stevens and, yes, indeed, David Souter.
They all wrote separate dissenting opinions at the time.
They expressed support for one another's dissenting opinions.
Justice Souter, what he does is he drafts his dissent in longhand.
That's the man who is on the bench from New Hampshire, this at-the-core basic human being on a legal pad, he says.
And in contrast, the opinions of some others, including Justice Stevens, Justice Stevens at the time,
All but accuse the majority of a cynical political act.
And many still view that as just that.
Bush versus Gore, of course, viewed and stated in the very opinion that it has no presidential value.
The Supreme Court, the majority says, we're issuing this opinion, but don't use it in the future.
A stunning thing for a court to do.
Stephen seizes on that as do the others and say, this is politics, raw politics at the time.
Stephen says, the nation's confidence in the judiciary will be shaken by this.
We're the guardians, he said, of the rule of law, and this cannot be but just a suitor, again joining in the other descents at the time, his tone more tempered.
That's the justice.
He says the court should never have taken the case in the first place.
He says, our customary respect for the state interpretations of state law counsels against rejection of the Florida court's determination in this case, once again, once again, making his own way, following that exchange with him and Senator Grassley at his nomination saying, no, I've got to make decisions based upon the law and the facts.
At the time, at the time, again, a source of great concern for Justice Souter, not because he felt his opinion was wrong, but just because he was appalled that his colleagues would take this case in the first place.
And one of his biographers, that is Justice Souter's biographers later on, wrote that there were times when David Souter thought of Bush versus Gore and wept, wept as a result of that.
In the wake of that, although his mood may have improved somewhat,
The 2006-2007 term brought another low point when the conservative majority under John Roberts at that time
strengthened by Justice O'Connor's retirement at that time and her replacement, Sam Alito, again, are successful and prepare decisions in a number of important cases.
We'll talk more about those, Justice Souter's role and the way in which American democracy and the movement forward was affected by this justice on the Supreme Court when Amicus, a law review,
continues.
Find the latest news, information, and archives of all your favorite shows on the Civic Media website, civicmedia.us.
A lot of you thank you for joining Max, my producer and me for our discussion this weekend all about the Supreme Court spending all of our first hour a little bit of the second hour as well talking about what our Supreme Court is doing now but spending this hour.
Memorializing and thinking about the legacy of former associate justice David Souter, who died in New Hampshire this past week at the age of 85, concluding almost 20 years on the bench of the United States Supreme Court, a tenure that was marked with a certain amount of tumult and some disappointment of his as he saw the court go in a direction that he did not support.
During the 2006, 2007 term, another...
turn and a strengthening of the conservative majority under John Roberts.
Again, Sam Alito joins the bench previously and along with Justice O'Connor's retirement, herself a centrist along the way.
Justice Souter watches as the court moves more clearly into a conservative mode.
In one relatively minor case, it is fairly obscure, but it's important to look against as always, a case called Bowles versus Russell.
Five to four majority opinion, finding that a prison inmates appeal was filed too late.
You're out of luck, you can't pursue those claims because your petition is too late, even though it was safely inside a deadline, a limit, imposed by the rule
that a federal judge had mistakenly given him.
The prisoner relies upon, frankly, some legal advice, probably improperly given to him by a judge.
And the prisoner relies on that, files his petition a little bit late.
And in that case, in that case, the Supreme Court, five to four, says prisoner is out of luck and cannot seek the substantive review that the prisoner wanted, justice suitor in dissent.
describes not just his disagreement with the majority, but also goes on and talks a lot about who he is and the reasons why he's so dismayed by all of that, deeper issues beyond just the singular issues in this case.
He said this, he wrote, it's intolerable for the judicial system to treat people this way.
David Sutter again writing this relatively obscure case but speaking volumes right about what he really thinks about what's going on he told friends during this period of time that he really wanted to retire but did not want to create another vacancy for President Bush to fill and that's why as reported earlier he sent his retirement letter to President Obama
in May of 2009, a few months after President Obama was sworn in as the president.
What happens?
He goes back to Concord.
He kept to chambers there.
He sat for several weeks for many years with his old court, the First Circuit Court of Appeals in Boston.
At one point, when he was asked, do you want to do some traveling, he said, why would you need to travel overseas when you've got Boston, when you've got Boston?
He loved that area.
He loved his home.
And he kept chambers once again there in Concord, New Hampshire.
He involved himself in New Hampshire life.
He was on a state commission to improve civics education.
And yes, he did.
He spent a lot of time talking as did Sandra Day O'Connor about the importance of civic education in America.
There's an absolutely wonderful, wonderful interview with him.
It's about an hour long, but there's a seven minute portion of it in which he talks to the interviewer all about the importance of civics and the concerns that he has for a nation that is abandoning its understanding of
civics and what what that leads to and he talks about the emergence of a strong man or a woman who could say because people don't understand civics let me all do it for you let me take on all these responsibilities rely on me exclusively if you don't know how civics works
Justice Souter argues that's the kind of thing that concerns him.
That leads, as he says, to the end of the republic.
He could not possibly have known at that time about the ascendancy of our current president, elected president twice.
He serves on this commission about civics education, and he also...
made it clear that he was going to be a person of academics as well.
Man who loved books, overwhelming his own home, he gives his papers to the New Hampshire State Historical Society with a stipulation they remain closed for 50 years after his death.
So it's gonna take a while before we see exactly what he wrote.
He receives an honorary degree from his alma mater, Harvard, and during that course of his speech,
the kind of thing that's going on right now in places, at colleges, universities, and other institutions around the country.
He offers a very heartfelt observation about constitutional interpretation, going back to the things that he said when he was appearing for his nomination, his review commission hearing before the Senate Judiciary.
It's very sobering.
The Constitution, he said, embodies not just one idea.
Here we go again, right?
That's exactly what he said when he was on the court.
That's exactly what animated his time in the First Circuit and as a judge back in New Hampshire.
The Constitution has many ideas.
and a pantheon of values, he said.
Not just one idea, a pantheon of values.
He said the notion that all constitutional law lies there in the Constitution waiting for a judge to read it is simplistic.
You need to understand it.
You need to apply it in the contemporary terms.
He said such an interpretive approach He said diminishes us when you do it that way that is you diminish the importance the meaning of a living Constitution when all you do is say look at the text to look at what the originalist might say would be the original intent of the writers of that text you diminish all of us he said that David Souter After he retired again, he actually sold that farmhouse
He moved into his townhouse and conquered and the reason he explained was because that old house could no longer bear its support Structurally the great numbers of books that he had he moves into town and he says reading history is a cherished pastime.
He says history provides an antidote to cynicism about the past history
provides an antidote to cynicism about the past.
What a great epitaph.
David Souter, justice of the Supreme Court.
It's important we take lessons from that.
Why?
It underscores for us things that are important, hugely important today, right?
We can't always predict how justices will decide, how judges will decide cases, and that is why on a relatively recent and current basis, I somewhat bemoan this notion that we need to describe all judges and justices by who appointed them, what president, what their conservative or liberal policies may be, because they surprise us sometimes, and that's been the history of the Supreme Court.
We also look to Justice Souter and people like John Paul Stevens,
and others who take on these assignments on behalf of the people and say yes indeed I'm a person of the Constitution but I serve the people in this all-important role.
He talks about the rules that Katanji Brown Jackson spoke about just a few weeks ago that you don't attack judges based upon the substance of what they say.
You can, in fact, criticize them, but the role of judges is to be impartial, and it is to apply things in a contemporary world premised upon the law and the facts.
That's what Justice Souter was all about.
That's what he articulated in his dissents in his opinions throughout his career.
We celebrate the life and the tenure on the benches by Justice David Souter, American, here on Amicus.
a law review.
My name is Jim Santel.
Welcome to this, the second hour of our weekly weekend broadcast about all things justice, government and rule of law related as always.
My producer Max and I are inviting your questions, your inquiries.
at 855-752-4842, 855-752-4842.
You can also be a part of our conversation, our discussion by dropping a comment, a question into the Civic Media Dropbox, continuing our discussion in this, the second hour of our weekly weekend broadcast of all things Supreme Court related, spending some time necessarily talking about the words, the wisdom, the legacies of,
Justice David Souter who died this past week at the age of 85 and also the words and the legacies of the newest Supreme Court Justice Katanji Brown Jackson bookends as we think about what the Supreme Court does the importance of it
in our lives, in our livelihoods here in the United States, and frankly, in many ways beyond our borders as well.
Let's talk about what the Supreme Court is up to these days.
Let's do some inventory first altogether.
To this point, the Supreme Court has agreed to hear 65 different cases.
They've granted what are called rits of certiorera.
You know what those are.
That's the Latin that basically says send that lower court file up.
We can take a look at it.
The Supreme Court has great discretion.
to decide what cases it will and will not take.
And often, often in their very decisions not to take cases, they're doing significant things in the litigation.
We'll talk about one of those cases coming up here in just a moment or so.
This past week, we know that the Supreme Court continues to be actively working on about 38 more cases yet to be decided.
They, believe it or not, issued about
27 cases altogether.
It is important to recognize what some of those cases are all about, for example, in recent weeks.
Many things that do not make the headlines, but important to litigation in America, important to issues that are important to people who are a part of our citizenry, a case in late April called Advocate.
Christ Medical Center versus Kennedy.
It was all about the calculation of Medicare compensation to hospitals and how you go about determining within that calculation whether patients are entitled to cash benefits through the SSI program.
Again, sounds fairly wonky, very specific, but in the end, it's important.
Seven to two, the Supreme Court affirms the lower court that comes out of the DC Circuit, court holding that when calculating Medicare fractions,
an individual is entitled to the supplementary security income benefits for the Medicare fraction.
when, when they're eligible to receive a supplementary security income benefits cash payment during the month of their hospitalization.
Again, a lot of detail there, a lot of application of a regulation, but basically, basically a victory, if you will, for the beneficiaries of SSI income.
Supreme Court's seven to two ruling in that particular case.
Here's another one, again, that doesn't fall into the broad scope of things on the headlines.
This case is Feliciano versus.
Department of Transportation involves the government playing the directly it concerns again some calculations some some math some arithmetic and again the word differential comes up differential pay statute this time it has to do with civilian federal employees who are also also in the armed forces our military service of people there in our military forces there's a statute that ensures that civilian federal employees who are also also
Part of our troops, a reservist, are paid at their higher civilian rate than their lower military rate during their deployment.
In other words, you're deployed, you're called up as a reservist.
Which salary do you get, the one that is the lower military pay or the higher civilian pay?
Five to four opinion, the Supreme Court reverses the federal circuit, which is a circuit that sits there right there in Washington, D.C., and holds it a federal civilian employee.
Call up to active duty according to any other provision of law during a national emergency has to be triggered by that is entitled to differential pay without having to prove.
that their service was substantially connected to some particular emergency.
Case goes off on the circumstances under which this differential can be applied, and once again, it is a victory for our military forces who are also civilian employees during the course of their non-reservice duties.
Again, two cases coming up, not a lot of attention to those, but significant to indicate that the Supreme Court
Issues and takes up and argues about a lot of cases that are significant in understanding how our agencies work how the executive branch works how the legislature works as well in that context in that context We have talked about this before it is important for you to mark your calendar For this coming Thursday Thursday, May 15th much to my surprise much to the
consternation, the concern of many people in America.
The Supreme Court has decided and did grant certiorari decided to take up this absolutely ridiculous notion advocated by my president.
The 14th Amendment passed in the wake of the Civil War to address the status of the newly emancipated now citizens of our nation.
What was their status?
What do we do with all of these people who are residents here of America?
The 14th Amendment obviously follows upon the Emancipation Proclamation of the President Abraham Lincoln.
14th Amendment nonetheless makes clear.
at the time that all of the slaves are now citizens, former slaves, are now citizens of the United States of America and establishes that principle clearly going forward.
It says this, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.
It goes on, of course, to talk about that equally important language that talks about privileges and immunities and no one being denied life, liberty or
property without due process, no denial within the jurisdiction of the nation without equal protection of the laws.
That's the language that is typically pulled from section one of article 14 of our Constitution, again, passed in the wake of the Civil War.
Our president goes back and says, let's look at that first sentence.
And in fact, he says that that first sentence pulling up this language subject to the jurisdiction thereof does not mean, but we have understood.
Article 14, the 14th Amendment to mean ever since it was passed.
That is, you are born here and you are a citizen of this nation.
The Supreme Court, again, has taken up the lower court rulings that have unanimously said, yes indeed, that interpretation that we've long known to be the case, that's the right one.
And in particular,
The Supreme Court is now determining whether or not a decision by a district court in the Western District of Washington that enjoying the president and enjoying the government from enforcing his view of the 14th Amendment, not previously seen unknown up to this time, blocking the Trump administration's executive order, again, that would limit birthright citizenship to children who have at least one U.S.
citizen parent or a parent who is a lawful, permanent resident.
and basically putting on its head, turning on its head, what we've understood to be the 14th Amendment, the Supreme Court could very easily have simply said that the lower court ruling in the S&D, the 9th Circuit coming up from that district court in Western Washington, affirmed the lower court and said, yes, the 14th Amendment still means what it says and says what it means.
They could have just left it where it is.
They could have said, no, we're not going to take that up.
We believe that lower courts are correct on that, but they didn't.
And they granted certiorari on it, and they're going to be hearing oral arguments.
Here's how they described it.
They said, we're going to hear oral arguments to decide whether the issue, to issue a partial stay.
basically to suspend the lower court's decisions, those injunctions that block the Trump administration's executive order.
Again, that order limiting birthright citizenship to children who have at least one U.S.
citizen parent.
or a parent who is a lawful, permanent resident.
We're gonna take that up.
The question is whether or not we should overturn those lower courts in terms of the injunctive relief, presumably letting those cases go forward in terms of trials and other presentations, but whether or not we should lift the injunction.
And that's going to be argued.
That is going to be argued this coming Thursday.
As I always remind all of our listeners, you can listen to that oral argument.
Here what the Supreme Court justices are going to be quizzing, quizzing the attorneys all about.
Here what the justices seem to feel about this issue as they ask questions and pose conundrums and objections and other views to the lawyers who are advocating on behalf of their particular positions.
You can hear that.
That's Thursday morning.
You can hear that live.
You can also hear that, of course, on tape when it's recorded.
The Chief Justice has made all of those arguments, including all the arguments of this term to this date, available to all of us to hear.
That's Thursday morning, and we get a pretty good sense about whether or not before the end of this term, the Supreme Court is going to issue, which could turn out to be one of the most significant cases of this term,
Basically, putting on its head, overturning what we understood to be the meaning and import of the 14th Amendment ever since its passage in the wake of the Civil War.
That's happening this Thursday morning, this Thursday morning before the United States Supreme Court.
Supreme Court, as I indicated, sometimes does things simply by not acting or by declining to do certain things.
Sometimes that's called the shadow docket.
a term that I'm not always attracted to because there's nothing really shadowy about it.
It's just simply incomplete and not full-bodied.
What happens quite frequently, of course, is that petitioners, most often the administration in recent years, the Biden administration, certainly the Trump administration, this term, the previous Trump administration, sometimes the Obama administration before that, would ask for emergency review.
by the United States Supreme Court to stop something that regard is being really bad.
that's happening out there.
We've got to involve yourselves right now, justices.
We can't wait for the appellate process to go up through the normal course.
And so we're asking you on the emergency application that we're presenting to you to stop this lower core thing from happening.
It's called an emergency application.
And frequently, as we've talked before, those kinds of things are done when, again, many circumstances, as you'll see in just a moment, but often,
especially during the summertime months and other times during the course of the term when an inmate on death row is about to be executed and the petitioners on behalf of that death row inmate petition the Supreme Court and say look one more time at this there's something about the lower court proceedings state court proceedings most typically could be a federal case as well but most often state court proceedings that again denied this petitioner this person on death row who's about to be sentenced
to death.
And that sentence imposed upon him, imposing the death penalty in the next few hours or even days, got to stop that from happening because you need to take one more look at the underlying record.
That's the kind of thing that this was intended to do.
And the Supreme Court justices plainly do not have the opportunities singularly and as a group to always issue major full blown opinions.
Why?
Because you've got to act quickly.
When we come back, I'll tell you about how that happened, that particular process, in connection with the President's ban on transgender troops, what the Supreme Court did and did not do just this past week, that again changes the nature of our United States military, that coming up here on Amicus.
Allah review.
Thank you.
This is Amica Salar Review, our weekly weekend review of significant events in the areas of rule of law, justice, and government, talking also necessarily this week about the United States Supreme Court, what is going to be entertaining this coming Thursday, an application of the 14th Amendment, the first sentence of that provision of the Constitution of the United States of America.
also reviewing something that it did decide just this past week in its so-called emergency docket.
Supreme Court ruling just this past week that the Trump administration, Donald Trump, the White House, can in fact, can in fact start enforcing its ban, its prohibition on transgender troops serving in the United States military.
It is blocked by lower courts.
The ruling coming out of your United States Supreme Court is brief.
It was unsigned, giving no reasons for it, thus the term shadow docket, not without the usual articulation of reasons for doing this.
That's typical when you have this kind of emergency action, raises the issue about the reasons for consistently going to the Supreme Court on these kinds of things and not letting the lower courts completely resolve them, completely address them, creating a full record for the Supreme Court.
This particular decision by the Supreme Court permitting the Trump administration to go ahead with its ban remains in place while challenges to it at the lower courts move forward.
So you've got a couple of things going on here.
Significantly, not surprisingly, as we talk about the ways in which we understand various justices.
Once again, you've got justices, Sonia Sotomayor and Elena Kagan and Katanji Brown Jackson, also noting dissents to that upholding
the ban on transgender troops, but they give no reasons.
They also just simply note that they would dissent a six to three rather in this particular disposition.
The case, of course, as you know, you will call this well.
The first day of President Trump's term in office, he issues an executive order, and it revokes an order from President Joe Biden, who then was no longer president.
The Biden executive order
had let transgender service members serve openly.
as would any other service members at the time.
Again, the president, Joe Biden, saying that there's nothing about the evidence, nothing about anything in military service would indicate the presence of transgender groups in any way compromises the integrity of our military, affects operations, affects our capacity to provide service and defend our nation.
Nothing about that.
No empirical proof that there's anything to suggest
that the presence of transgender troops compromises the military at all.
And the current president reverses all that and says this among other hugely offensive things.
He issues an initial order, follows up with a second order saying that seeing this says the adoption of a gender identity that's inconsistent with an individual's sex conflicts with a soldier's commitment to an honorable, truthful,
and disciplined lifestyle.
That language has been plucked up, of course, by people who are not only offended by it, this notion that somehow if you are transgender in any sort of life, that somehow you're not honorable or truthful or disciplined in your lifestyle.
The Defense Department, of course, turns around, immediately implements Donald Trump's order in February.
It issues a policy requiring transgender troops to be forced out of the military.
Leave, go away.
And it is significant, of course, along the way that this is argued not only based upon the offensiveness of the reasons for this, but also the fact, once again, as President Biden found in his executive order, permitting this, that it is a good thing for the military to have diversity, including transgender military members.
Noting along the way, there are about 4,200 current service members, that's 0.2% of the military are transgender.
The Supreme Court order again comes, as we all know well, in the broad attacks of this administration on transgender rights already seeking to bar transgender athletes from sports competitions.
We've seen that.
trying to force transgender people to use bathrooms designated for their sex assigned at birth, all those kinds of things, also percolating up and down in the courts.
And we know as well, based upon our discussions here on amicus, justices are soon going to decide the fate of that Tennessee law.
We talked about this recently, that prohibits that bans transition care for transgender youth.
And that of course was challenged in a case brought by the Biden administration.
Trump administration comes in and flips the government's position after an executive order again at that point directing all the agencies to do what?
to undertake things, to take steps to curtail surgeries, hormone therapies, and other transition care for people under 19 years old.
So we get back to the military issue.
Again, just this past Tuesday, there were seven active service members, as well as a person who sought to join an advocacy group who sought to block the policy, saying that it ran a file of the Constitution's Equal Protection Clause, again, 14th Amendment, saying that you're treating people
who are positioned similarly differently.
One of the plaintiffs, Commander Emily Schilling, she began transitioning in 2021 while she was serving in the Navy.
Naval Aviator for 19 years, 19 years as long as Justice Souter was on the bench.
She's flown more than 60 combat missions.
Iraq, Afghanistan spent $20 million on her training the Navy has and they've gotten the benefit of her remarkable service.
in March, this is where this case comes from, is a federal district court judge.
Again, in the capacity of the injunction function that we've sometimes talked about, Benjamin Settle, his name, S-E-T-T-L-E, federal district court Tacoma, Washington, that's the western district of Washington, he's a trial court judge there, issues a nationwide injunction at the time, blocking
the Trump administration for doing this, banning the executive order entered by President Trump and using Commander Schilling as an example of why this policy is so incredibly flawed and unsupported by evidence.
The judge at that time says there's no claim and no evidence that she is now or ever was a detriment to her unit's cohesion or to the military's lethality or readiness or that she is mentally or physically unable to continue her service.
Justice Settle goes on to say, there is no claim and no evidence that chilling herself is dishonest or selfish, invoking the very language of our president, or that she lacks humility or integrity.
Goes on to say, yet absent and injunction, again, enjoining stopping the president from doing what he wants to do, she would be promptly discharged solely because she is transgender.
Interesting, again, we shouldn't have to do this, but we necessarily do in this time of partisan review.
A judge said all appointed by President George W. Bush.
He writes the government has failed to show that the ban was in words where it's substantially related to achieving unit cohesion, good order or discipline specifically rejecting.
what the president has said he's trying to do here.
And he says, you know, we've got to give military decision making some deference, but it would be an abdication, a complete abrogation of a responsibility as judges to ignore what he calls the government's flat failure, the flat failure to address the plaintiff's uncontroverted evidence that years of open transgender service promoted those objectives.
The United States Court of Appeals, the Ninth Circuit, that's where the Western District of Washington is located, goes up on appeal to that circuit.
A panel there refuses to block.
Judge settles ruling says we're gonna review this in greater detail But we're keeping it in place can't act mr. President and that's when the administration that's when Donald Trump ran to the Supreme Court Seeking emergency relief in the Supreme Court saying saying this the district courts injunction is wrong the Ninth Circuit likewise wrong in all this cannot be squared presidents said With the substantial deference that the department's professional military judgments are owed
That was presented by your government to the Supreme Court.
And when we come back, we'll talk once again, reaffirm for you what the Supreme Court did in that accepting, accepting that position from the Solicitor General, the U.S.
Department of Justice, and the White House when Amicus, the law review, continued.
This is Amicus, a law review.
My name is Jim Santel.
We are talking, reviewing a lot of Supreme Court activity in this, the second hour of our broadcast this weekend, talking in particular about this decision issued by the Supreme Court, a six to three decision.
Permitting the Trump administration to go ahead with its executive order banning transgender troops after a lower court in Washington after the appeals court in the Ninth Circuit has barred that again the case will go forward the litigation of it in the court of appeals the government running into the Supreme Court to ask that while that litigation goes on on the merits at least let us pursue this ban on transgender members of the
of the military.
And the Supreme Court, again, by a split court, agrees to do all of that.
Interesting, along the way, the President, the Solicitor General on your behalf, goes into the Supreme Court and says the government, that at a minimum, the guys, the government is asking, the court should limit Judge Settle's ruling to the plaintiffs in that case.
Don't make it the national injunction that he has entered and lift the balance of this case.
on the nationwide injunction.
In other words, do it just for Western Washington and let the ban go into place for the rest of the country.
The court opted for a much broader approach, pausing the injunction entirely, and lawyers for the challengers, of course, reacted with huge dismay as have others.
Again, bemoaning the fact that the Supreme Court has taken this up at all and, again, permitted the president to go ahead and pursue this ban for which there is no evidentiary support whatsoever.
Again, a part of its shadow dock and a part of its action on these emergency applications, more of those happening plainly with great frequency before our United States Supreme Court.
As always, we appreciate the calls and the notes coming into our studio and we appreciate Joe.
You're being a part of our discussion this morning, calling in from Madison.
Joe, good to have you with me this morning.
Great show, as always.
I particularly appreciate your biography about Justice Souter and just his deep sadness and unhappiness over the GORV decision and what that portended for our country.
Very interesting discussion.
I want to go back to the 14th Amendment and the fact that the Supreme Court may be taking or is planning on taking this up.
And as I understand from you, the Supreme Court has a choice.
They can say, oh, forget it.
This is federal law.
Our time is limited.
We don't take every case that comes before us.
We take our cases because there's something particular that we want to understand and parse through.
So they're choosing to take this 14th Amendment.
So, Jim, I apologize for my stupidity, but I was reading through this article on CNN politics.
The title of it is how the modern Supreme Court might view the 14th Amendment and birthright citizenship if anyone wants to go pass through it.
I'm stupid.
I thought that this whole thing came about, um, you know, the 14th amendment after the civil war said that African Americans who are born here are citizens.
So it was a way to, to, uh, uh, affirm that this case.
So, as I understand about birthright citizenship came from 1898.
And this was a, uh, uh, Supreme court decision that had to do with a Chinese, uh, a man who was born to Chinese nationals is 21 years old.
His name was Wong King.
He lived in California, born here in California.
And as I understand it, he chose to leave to visit relatives or friends, whatever, in California.
And he had paperwork that said, I am a United States citizen.
People attest to this.
And then he came back and...
There was another court case that said, yes, you were born here.
You're an American citizen.
So, you know, you got 100 plus years of this.
And my question is, is I understand that the two points that Trump wants to take up on this, he wants exceptions for, as I understand it.
two new categories of individuals.
Now, as I understand it, it's if you're the son or daughter of foreign diplomats, forget it.
And also, if you are the son or daughter of an invading army, parents in an invading army, you can't gain citizenship.
Okay, I got that.
But he wants to say that if your mother wasn't lawfully present in the U.S.
and your father wasn't a U.S.
citizen or permanent resident, no go.
or if your mother was in the U.S.
on a lawful but temporary visa like a tourist or a student visa and your father is not a U.S.
citizen or lawful permit resident, no go for you either.
The question I would bring up is why in God's name would the Supreme Court want to take this?
Yes, right.
Opening up a quagmire.
I mean, first thing that I would say is couldn't a single mother claim all the child's father is a U.S.
citizen?
You know, he was a soldier at a soldier base, at an army base, and gee, I can't remember his name, but by God, he was an American citizen.
What are we going to do then?
Are we going to ask for DNA from every person she thinks might be a possibility?
It seems like it is quite clear what we have now with the two exceptions of the invading, you know, the son or daughter of a member of an invading army or foreign diplomat.
What on earth is to be gained by taking up this case?
I would love to
And I join you, Joel, in scratching my head.
And again, this was one of those situations where when this first came up and we had the cases brought, frankly, around the country, including this one in Western Washington.
Everyone who's looked at this historically and I'm not an historian by any means but but some knowledge obviously the 14th Amendment as we all do and said oh come on there's nothing here we don't need we don't need to revisit this as you indicated so well we've got a history on this as well it has been affirmed repeatedly that the Supreme Court and and other lower courts have affirmed this basic notion
And you're right, both in terms of the way that the question is phrased, we've got these two categories, children who have at least one US citizen parent or a parent who is a lawful permanent resident, almost sounds like a tax code, right?
An issue about how it is we're going to understand particular cases.
And opening up the door is the best response to all of this, which is, when you get to that oral argument on Thursday, yes, indeed, the petitioners and the folks who are responding to all this might focus on the particulars of this question, but you know well, Joe, as you've just indicated, that the Supreme Court justices on all sides of this are going to go broader, right?
They're going to ask, well, what about this situation?
What about all these circumstances?
Even if they support in some way the president's executive order, even if they're opposed to it, necessarily when these things come into the Supreme Court or any pellet court, what the courts do, the panels there, they think about the next cases and the practical implications as you just indicated of a decision in one way or another.
Once again, this is not a significant issue for us in America in 2025.
No reason to unsettle the law that has been in place, as you indicated, for a very long period of time, affirmed by the Constitution repeatedly by Supreme Court and other lower courts.
We do not know.
Maybe there will be some clues during the course of the oral argument on Thursday about why this case was taken at all.
And that's the lesson, that's a takeaway.
Had they simply said that when the court, the lower court on February 6th of this year, decided this case and the Ninth Circuit then subsequently affirmed it, nothing more to see here.
And we leave it alone.
They didn't do that.
And so the answer, Joe, fundamentally to your question will come on Thursday or maybe, maybe sometime in June when the Supreme Court will issue its opinion.
Fascinating and concerning at the same time.
Joe, thank you so much for your comment, your observation, your history as well.
Lots of that in this edition of Amicus, A Law Review.
We know as well,
that there are other supreme courts out there those are state supreme courts right and although we haven't spent a lot of time talking about this another significant thing happened in connection with a state supreme court just this past week and that is finally finally the much contested race for the north carolina supreme court was resolved when a federal judge stepped in and said i'm putting an end to all of this and indeed i'm going to direct
The state election board there in North Carolina to certify the election to an incumbent.
Her name is Justice Allison Riggs, who defeated a challenger.
His name, he is an appeals court judge.
His name is Jefferson Griffin.
The defeat was fairly close in a couple of follow-up recounts, 734 votes.
Out of about 5.5 million votes cast in North Carolina close, a reason for recounts plural.
In the end, what the appeals court judge did, that is the contesting challenger to sitting justice rigs, he pursued every avenue here, went back into court,
multiple times, raising issues about the legitimacy, about 68,000 voters overseas, whether those were legitimate, raising questions about 300 other voters.
He maintained we're never residents of North Carolina.
All of that unsupported by the facts, unsupported by the law, basically trying to argue that the law should be amended to permit or not permit those ballots to go forward.
All of that rejected ultimately, ultimately by a federal district court judge
said no you can't change the law after after all of this has happened he directs the state election board to certify the election to place Allison Riggs keeper in place on the North Carolina Supreme Court
And along the way, interestingly, the attorney general of North Carolina says his name is Jeff Jackson.
He says that Judge Griffin's challenge was an attempt to twist the law to reverse the outcome of legitimate action and election.
This attack didn't work, the attorney general said, but there's a real risk that other losing candidates might try the same attack in the future.
Now,
In fairness to the story, Judge Griffin has conceded.
He said, I'm not going to contest this anymore.
But the attorney general's comments are concerning.
It's the reason why we're taking it up here on Amicus.
And that is because, of course, it's significant.
You've got an
an appellate court there, the Supreme Court in North Carolina.
It is the last one since last November to be certified in the entire nation.
That's how long this has taken.
That's how long the litigation has gone on, including an appeal to the very state Supreme Court that this was all about significantly during the course of that.
Justice Allison Riggs did what?
She recused herself.
That's what justices and judges should do.
All of this taking a huge amount of time and also sending messages around the country.
The reason why this is so significant is because it does indicate that if you raise issues unsupported factually that are not premised upon the law, you can extend these kinds of things and maybe eventually, as Judge Griffin did get a little bit with the State Supreme Court, a little bit of support for the view that, well, maybe we need to take a look at some of this a little bit more, you can in fact suspend the ultimate decision.
of the voters here very narrow very narrow few hundred votes but you can do that over a period of time that provides uncertainty about what the future will bring the other reason why this is so important is not only for lessons around the country bad lessons that after recounts and after maybe a singular piece of judicial review and a court has taken a look at something and decided no no
there is nothing here to see or, or in those instances where there is something, that there is a remedy once for judicial action, then we bring it to conclusion.
That did not happen here.
This was extended and prolonged litigation.
In the end, again, Judge Griffin conceded bringing this to an end, but it also speaks to us here in Wisconsin because like...
Like North Carolina, we are a purple state.
Interestingly, North Carolina both went for Donald Trump, the president in the last election, November of 2024, and at the same time elected a Democratic governor.
Much like North Carolina is Wisconsin.
We have decisions at the polling places that place senators and other representatives of both parties in important positions.
We too.
are like North Carolina in the composition of our voters.
And for that reason too, especially as we look to another election to our Wisconsin Supreme Court coming up in 2026, this may or may not be a playbook coming out of North Carolina, but certainly is something that warrants our attention, our focus and the review that we're doing here on this broadcast to understand what did
and did not happen there in North Carolina, evidence plainly of the way that courts should resolve things and the decisiveness that ultimately has to come in the end to bring those kinds of things to conclusion.
Connection with all of that.
Let's go back once again to the federal courts and provide some brief updates on what's going on in those cases involving, yes indeed, the Venezuelan immigrants
238 of them approximately still in that high security prison in El Salvador.
We know that just judges, Paula Zinnis and James Bosberg Justice past week continue to pull their hair out over the representations and misrepresentations and decisions by your Department of Justice, lawyers before them, not to provide the information that the judges are asking for from the government.
When we come back, we'll tell you
more about the status of those cases, still unresolved, still unresolved in our federal courts, and we'll finish with a reference to the new Pope and the things that he has said about refugees and immigrants and migration on the face of this planet.
All of that when Amica Salarview continues.
This is Amicus Allureview.
My name is Jim Santel.
Lots and lots of things happening in our courts these days, including, once again, some federal district courts.
Here is the mantra.
Once again, it is the federal district court judges who are providing standards and guardrails, not in political opposition to what the president is doing, but certainly not just questioning, but requiring the government, as it always should, provides information and status reports
and abides by the orders and the directives of federal district court judges.
We know that many of them have been exasperated by this Department of Justice under Pam Bondi, under this White House's direction, not to provide courts with the information they have asked for.
This is the constitutional crisis illustrated every single day.
The question of course, what does one do about it?
What are you prepared to do in response to these decisions by our present administration, simply to say no.
to federal judges.
Simply to say we're not going to do that, we're not going to provide you with the information.
More of that on display just this past week.
We know that Judge Paula Zenis, she is working still on the case involving Kilmar Abrego Garcia.
He is that Maryland man taken away from his family.
in Maryland by administrative error, which the government has conceded it did.
He should not have been deported.
And Paula Zinnis has ever since this case presented to her for weeks and weeks has been asking for his return demanding that again, pursuant to a Supreme Court directive.
that the government facilitate his return.
She's asking them to do that.
She's been asking for information, but what they are doing to accomplish that along the way, out of frustration, she has said that the petitioner, basically the lawyers on behalf of Mr. Abrego Garcia can depose Department of Justice officials and other authorities in Homeland Security finding out about the circumstances of Abrego Garcia's deportation and his present status, what efforts are being undertaken just this past week in an order.
She revealed the government is now taking the position that all of this all of this is subject to this state secrets privilege therefore you can't have it judge and That she revealed in an order
in which she also asked for detailed legal briefing from the government about what this is all about.
She has commanded the Department of Justice to give her more information about why we're now invoking this.
Secretary of State Marco Rubio, you know who he is, Homeland Security Secretary Christy Noem, Attorney General Pam Bondi have all endorsed the invocation of the state secrets privilege.
Basically there's something so so important to the national security
that we can't tell you about Mr. Abrego Garcia, and she wants to know more about that.
That is Judge Zinnis.
She has once again been expressing on the bench her incredible frustration.
probably also approaching a contempt citation at some point if she doesn't get the information she wants.
That's the constitutional crisis that's happening in a court in Maryland.
It does prompt an awful lot of focus.
Once again, upon checks and balances and the breakdown of that right now, across the river, we've got Justice Judge James Boasberg.
He's the chief judge of the district court who likewise is beyond, beyond frustrated in
Similarly, getting non-answers.
Just this past week, of course, the judge notes that he had seen the judge saying in that interview with the media that I could get Albrego Garcia back from El Salvador and I can do just that.
He went on to say that as the president.
The government lawyers do not want to help bring him back.
The president went on to say it was elected to get murderers and drug dealers and the worst people on earth out of here, and the courts are holding me from doing it in another interview, stunningly, shockingly, affirming this constitutional crisis that is afoot in America now.
The president of the United States of America said in response to the question about whether or not you have got to uphold the Constitution, he said,
I don't know.
All of that prompting Judge Bosberg, who sees that to ask the attorneys before him this, was the president telling the truth when he said he could pick up the phone and have Mr. Abrago Garcia be released or not?
Basically saying, why isn't this done?
Again, in Paula Zinnis' case, nonetheless, why is the president not acting again pursuant to the directive's
of the Supreme Court and the attorney attorney named Abishek Cambly says your honor that goes towards the president's belief about the influence that he has.
Who knows what that means?
And Judge Bosberg, again, goes back to a concept of constructive custody, which is also looming large in this custody of a person not under the government's physical control, but actual control, and goes on to say, didn't the president just say last week that he could, in fact, secure the return of Brego Garcia?
And again, the government not respond to that.
Bozburg goes on to say, so transferring again the people in the case before us, these 238 to this high security prison in El Salvador without process that the Supreme Court has now directed them to do.
It says due process requires that you, you that is the attorney appearing in front of me, you've essentially admitted that their rights were violated.
That's Judge Bozburg questioning the attorney in front of him.
If they're in constructive custody, then what's the remedy?
How do we get this resolved?
And before the judge concluded the proceeding, part of a habeas corpus proceeding, challenging again the Alien Enemies Act, the judge appeared ready to rule.
He's again indicating great frustration here.
He said that he will probably issue an opinion on all of this, presumably expressing his frustration, but also on this issue about whether or not the Alien Enemies Act applies at all.
We know there are three other district court judges who have similarly made the decision that the law under which all of this is happening is not constitutionally applied here.
Why?
because we're not at war, because this is not an invasion, because the very predicates for invoking the law are not here.
And again, just Judge Bosberg, very likely to issue that opinion as well, as he continues to be hugely frustrated with the government in the back and forth there about why it is those 238 people have not been returned here for due process that's been directed, that the Supreme Court has said they're entitled to.
It is stunning to note that the members of
administration, including now Stephen Miller, have talked about recently suspending the writ of habeas corpus.
That is beyond a dramatic rule of law crisis in America.
If that happens, we hope that that's not sincere.
But once again, it is the kind of thing that all Americans should be attentive to.
And similarly, the new pope, attentive to all these issues related to immigration.
We know that during the course of his first statements in St.
Peter's Square, he said this, we must seek
together, how to be a missionary church."
Pope Leo the 14th said.
A church that builds bridges and dialogue and is always open to receive like this square.
He's talking about St.
Peter's Square with open arms in previous iterations on the
Social media this pope while he was a bishop has also talked about similar things out there and some of it's attributed to him by virtue of his reposting articles He has talked for example about the suffering caused by immigration policies as set forth in other articles that were likewise posted previously by him The authors of those articles saying things like is your conscious not deserved disturbed.
How can you stay quiet?
As the new pope takes his position, we will see what role he plays in immigration, migration, and refugee issues.
Every indication that he will be a pope of the rule of law.
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