Good Law | Bad Law #109 - Chief Justice Roberts’ Thanksgiving Bone to Pick with President Trump? w/ Steve Vladek

Aaron Freiwald: [00:00:00.09] Welcome back to Good Law Bad Law. First of all please excuse my cold which is wrecked my voice but much much more importantly we have a great episode with returning guest Steve Vladeck. He is a professor of constitutional law at the University of Texas Law School. And we are talking about the Thanksgiving week battle royale between President Trump and Chief Justice Roberts over the legitimacy. Can you believe that we're actually talking about the legitimacy of the federal courts in our country. But that's really what's at issue. And Steve is not only an expert on this but has really picked apart the president's arguments and claims regarding a dispute that stems from a decision in California in a federal court interpreting an asylum law. With asylum seekers at our southern border as we speak. This is a great issue and a really important issue. And Steve's the perfect guest to work through it with us so stay tuned.

 

Aaron Freiwald: [00:01:22.14] Welcome back to Good Law Bad Law. My guest on today's episode is Steve Vladeck. He's been a guest on the show before. So first of all Steve thank you very much for coming back to Good Law Bad Law, I really appreciate it.

 

Steve Vladek: [00:01:34.8] Happy to be back.

 

Aaron Freiwald: [00:01:36.51] Steve is a professor of constitutional law at the University of Texas Law School. And there I was just after Thanksgiving down with my wife's family in Georgia and I'm following taking a look at my Twitter feed and there is this string of tweets from you Steve about the battle and I want to ask you as we get into this first of all is this unprecedented... this battle of words between President Trump and the chief justice of the Supreme Court Justice Roberts over this decision that went against President Trump on an issue relating to asylum? Because it sure sounds absolutely crazy.

 

Steve Vladek: [00:02:24.03] Yeah I mean I think it's certainly not a good look for most of the participants. Unprecedented I think is strong only in the sense that you know if we rewind a hundred and I don't know fifty seven years to the beginning of the civil war. You know President Lincoln got into some pretty heated battles with Chief Justice Roger Taney.

 

Aaron Freiwald: [00:02:43.89] OK.

 

Steve Vladek: [00:02:44.83] That you know I think that we didn't have Twitter back then. I'm not sure that I would. I just thought that this over that I think what was interesting to me about the provocation here besides the you know five distinct factual errors in the president's claim is that you know I think a lot of people have been waiting for the chief justice to say anything about this president about this administration and were surprised and disappointed. For example in June when the chief justice wrote the majority opinion for the court the travel ban case basically glided over you know sort of the baggage of President Trump that was hanging over that dispute. So no I think that the headline to me at least was finally something provoked the Chief Justice to speak out as you know less so that once again the president is repeating false claims about you know my old stomping grounds the 9th circuit.

 

Aaron Freiwald: [00:03:38.49] Right. And we're going to get into those how you've picked apart those false claims and try to set the record straight. And I also want to set the context a little more fully for how this war of words began. And we have to understand that we have to rewind a little bit because this isn't the first time the president has been said to have taken on the judiciary particularly the federal judiciary. So you know we have to look at...he's a provoker in general he does try to be provocative I think he does so very knowingly perhaps sometimes ignorantly but he knows what he's doing and stirring the pot and he's done it before he called one federal judge biased because the judge was of Mexican descent he called another judge on another occasion a so-called judge and you know as you point out he's not the first president to speak out against a Supreme Court ruling but it does seem the president does so in a particularly personal way when he does.

 

Steve Vladek: [00:04:48.98] Yeah personal and I would also say in sort of an institutionally damaging kind of way. I mean so you know folks were quick to point out that President Obama famously during one of his State of the Union addresses had been very critical of the Supreme Court's decision in Citizens United. You know I have to say I don't see that as of a piece with what President Trump is doing because President Obama wasn't saying that the court was illegitimate. He was saying the court was wrong. Yeah and I think we all ought to be able to distinguish between substantive disagreements with decisions the courts are handing down and efforts to delegitimize those decisions which I think is the more nefarious part of what's going on in the president's rhetoric.

 

Aaron Freiwald: [00:05:33.56] That does seem to be the crucial difference you're right. I mean differences in direction or policy or results. That's why we have three branches of government. If this Congress.

 

Steve Vladek: [00:05:46.31] And it's why we have multi judge panels.

 

Aaron Freiwald: [00:05:48.15] Right and and reviews and appeals and ultimate appeals. I mean the whole system is set up to resolve reasonable differences maybe even unreasonable differences when it comes to whether a law is legitimacy or a ruling's legitimacy. But he does question the legitimacy of the institution itself.

 

Steve Vladek: [00:06:11.37] Yeah. And I think that's the concern. I'm ethnic right. The real problem that is raised by these attacks is what is the president's end game. Is he doing this just because he likes attacking everybody who brings in bad news.

 

Aaron Freiwald: [00:06:24.85] Yeah.

 

Steve Vladek: [00:06:25.14] And as of late he's been getting a lot of bad news from the courts. Or is this you know a longer game where he's worried about his own fate potentially being up to you know some of these same judges and wants to begin to lay the groundwork and sow the seeds for you know being able to question the validity of decisions that run against him more directly when something more important to him than just his latest policy initiative is the thing that's at issue in the court.

 

Aaron Freiwald: [00:06:55.14] Well and we do need to get into some of the details of this and we we will but just because you raised that and that's a fascinating thought. And many are speculating that there will be some issue or another of deep almost existential importance to the president that may find it's that issue before the Supreme Court. And we also know that Justice Roberts is finding his footing now in an era where he many believe assumes the role of the swing justice on the court. With with Justice Kennedy's departure. You know you mentioned the travel ban opinion. And although Justice Roberts does write the majority in that case he doesn't have a lot if you read between the lines and maybe not quite so needing to read between the lines at all he doesn't really look particularly favorably on the president's out-of-court statements on the issue.

 

Steve Vladek: [00:07:55.18] That's right. I mean I think it's quite I mean he's I think the chief was trying to send a message you know in that opinion. I just think that is intended recipient is not the kind of person who takes subtle messages like that.

 

Aaron Freiwald: [00:08:07.84] Yes.

 

Steve Vladek: [00:08:09.1] And more importantly I think you know the president as you said this is not this is not just knee jerk. I mean he knows enough to know that going after the courts in general and the chief justice in particular is not necessarily going to put him in good stead with those people those judges those institutions when the time comes. He doesn't care because it's more important to him to raise questions about legitimacy and to raise the specter that you know cases he loses he's losing not for the right reasons than to actually take seriously that these are coordinate branches of government that are entitled to respect even if not especially when you disagree with them.

 

Aaron Freiwald: [00:08:48.97] Well I guess and we should probably wrap up when we get to that point in our conversation and come back to this issue. But of course again this president's approach bare knuckled you know calling people names and questioning their legitimacy. This is not something he's reserved for the judiciary. I mean he's called into question the legitimacy of the entire electoral system in our country. He's called out senators and members of you know the House of Representative and candidates and you know it is something his supporters seem to like in him. But it clearly has an impact.

 

Steve Vladek: [00:09:30.45] I think that's right. And I think the difference when it comes to courts is that they're not institution that tends to be the position to fight back. Now we wouldn't want that's true. I mean we don't want judges appending to their rulings long discussions of all of the ways in which the president said nasty things about them. So you know this is asymmetrical warfare. I think that's why the chief justice going out of his way to address this. And you know the chief doesn't do anything by accident. Yeah I think with such an interesting. And to me I think a long overdue moment.

 

Aaron Freiwald: [00:10:05.83] Well and I know you're referring to Chief Justice Roberts statement which he issued just the day before Thanksgiving and to set up why that is so such a powerful and maybe important step that he's taken going from some of the subtle messaging that was in the travel ban opinion to something that there's no subtlety or nuance in it whatsoever he's really sounds like he's he's telling President Trump to back off. But let let's understand how we get there and you can help us set the scene here. This is an asylum case that comes before a federal district court judge. Important distinction in San Francisco and can you just give us a bit of the background Steve so we understand what happens afterwards.

 

Steve Vladek: [00:10:53.65] Sure. I mean so this is part of President Trump's new controversial policy with regard to entitlement to asylum under federal statutes right now. It is not a requirement that you present yourself at a port of entry if you are a noncitizen trying to enter the US to apply for asylum. You can apply for asylum even if you enter surreptitiously and are subsequently apprehended by immigration or law enforcement authorities. The president promulgated an executive order that basically says that's no longer the case and purports to deny entitlement to even apply for asylum to anyone other than those who present themselves at the port of entry. And there's an obvious and I think latent tension and inconsistency between the terms of this executive order and the relevant federal statute. So litigation was brought challenging the executive order on the grounds that it's inconsistent with the relevant federal statute. A federal judge in San Francisco judge Tigar issued a temporary restraining order siding with the challengers and blocking the executive order from going into effect. And actually I should note just yesterday the government filed notice of its intent to appeal that decision to the 9th Circuit so litigation is ongoing.

 

Aaron Freiwald: [00:12:08.51] Right.

 

Steve Vladek: [00:12:09.33] But It was that ruling by one district judge and the temporary restraining order was not just a bar on enforcement of the executive order within the Northern District of California where the judge sits it was actually a nationwide TRO that had at least the effect of preventing the president from putting his new policy into effect anywhere.

 

Aaron Freiwald: [00:12:29.12] So and this you actually cite to the statute in one of the tweets that you had from the other day and it's 8 USC United States Code Section eleven 58 if anybody wants to look it up or or follow Steve on Twitter and you can go back and find his tweet from the other day on this where he lifts the part of the statute that was at issue and that part of the statute clearly says passed by Congress that any alien this governs who has authority to apply for asylum. And contrary to what the president and others have tried to suggest any alien who presents to the United States and then very clearly states and you highlight it whether or not at a designated port of arrival in irrespective of such alien status may apply for asylum. So this sounds like a real question of the president's authority in an executive order to declare something completely at odds with the language of a federal statute. Right. That's the issue. This federal judge has to deal with here.

 

Steve Vladek: [00:13:41.09] That's right. And I mean the key is you know there are other cases where you know there are charges that federal judges are adopting constitutional interpretations that are novel right in order to frustrate Trump policies. That's not this case. This is a run of the mill conflict between an executive order and the plain language of a pretty unambiguous statute. And so you know I think one of the things that is worth stressing is this is a context in which I don't think it would have mattered which judge the plaintiffs had drawn where they had filed you know the reality is it would have been pretty hard for any judge anywhere in the country regardless of their ideological commitments their background whatever to have you know held in this context that the executive order was allowed to trump the statute. Pun intended.

 

Aaron Freiwald: [00:14:26.9] Well right. And that's one of the ironies of this and remind me if this is one of the inaccuracies or falsehoods you deal with in your in the series of tweets you had. But of course it's been a big debate in what should be an appropriate judicial philosophy whether a judge particularly a federal judge should legislate from the bench or should stick to the clear meaning of the text whether the Constitution itself or statute that's at issue and President Trump's criticism of this ruling is that this judge was legislating but actually it's the complete opposite. Right. The judges is saying this statute is clear and we're not going to allow the president to legislate against what is clear in the law that was already passed.

 

Steve Vladek: [00:15:15.98] Yeah I think one of the problems with contemporary discourse is that folks tend to sort of assume your priors based upon what side you're on. And I think everyone can and should read the relevant statute and I don't know how anyone could read the text you quoted from a eight USC section eleven fift eight a one and conclude that the statute is anything but clear that it expressly allows what this new executive order purports to foreclose. Now maybe there's an argument that the statute is unconstitutional. In constraining the president's power to promulgate this executive order. But that's not how this is. I mean that's not where we are. That's not the argument being advanced. So.

 

Aaron Freiwald: [00:15:56.43] And you wouldn't make that argument in an executive order. You would file a lawsuit challenging the constitutionality of this of the law.

 

Steve Vladek: [00:16:05.93] Yeah I guess. I mean it just seems to me that you know reasonable people can disagree about close cases where judges may in fact be you know interjecting their own policy preferences to resolve what otherwise a toss up. This isn't a toss up. And so you know I think one of the one of the problems I had with the president you know going on a temper tantrum here is this should have been low hanging fruit regardless of who the judge was where the case was filed or you know how it ends.

 

Aaron Freiwald: [00:16:35.48] Ok. So this district court trial judge in San Francisco the Northern District of California issued this restraining order against the executive order President Trump tried to issue and obviously this was not news that the president received very well. And what happens next. Does he go off and tweet about this is that what he what he does.

 

Steve Vladek: [00:17:00.9] Yes. So I think you know I mean the stories I think started running on Fox News that once again the 9th Circuit is up to no good. The 9th Circuit is interfering with the president's immigration priorities and you know far be it for the president to actually check the facts instead the president just tweets what he sees on the news and you know rails against how the 9th Circuit is full of Obama judges who are preventing him from defending the country and who are you know substituting their own judgment for his determination of what's necessary to protect the border. And I think at one point called the 9th Circuit a disgrace and a whole bunch of other choice words in a series of tweets I think over the course of two or three days.

 

Aaron Freiwald: [00:17:46.78] And the 9th Circuit just I'm sure most people do realize the difference we're talking about here. The 9th Circuit is one of the federal courts of appeal in our country and governs cases that come up through the federal trial courts in the western part of the country. California Arizona Nevada Washington and so on. It's a big big court of appeals but it's one of the federal courts of appeals in our system.

 

Steve Vladek: [00:18:14.11] That's right. I mean so there are 13 federal Article 3 courts of appeals 12 geographic and then the Federal Circuit which is kind of weird and I think one of the points that is going to matter in this discussion about you know statistics and is the 9th circuit somehow an outlier is the 9th Circuit is not just big. It is huge. And it is dramatically larger than any of the other federal courts of appeals by any metric the number of states. It covers a number of cases it hears the number of judges it has and partly because of its size. You know I think one of the things that happens is it gets singled out for treatment because you know by dint of its size you get a wider array of opinions from that court. You can get judges who represent a greater cross spectrum of ideological views. And so it's you know it has become I think over time a punching bag especially for conservatives who often find that the 9th Circuit is on the wrong side of cases that they think should come out the other way.

 

Aaron Freiwald: [00:19:21.22] Well and part of that is that the the federal system that divides up the country into these federal circuits for the appeals courts correct me if I'm wrong but I imagine that was set up in a time when the western part of the country wasn't as populous as it is now. So you'd have given a lot more states to the 9th Circuit say than to the Third Circuit which only has a few states but very populous states in like Pennsylvania and New Jersey where the Second Circuit which has New York in it. But of course over the years population in California and the Southwest and the upper Northwest has grown so.

 

Steve Vladek: [00:20:01.19] No that's exactly right. And unlike the eighth and fifth circuits which at different points in American history Congress decided to split into two. Congress has never despite significant pressure to do so pursued a split of the 9th Circuit. And part of that is actually geographic that it would be very hard to have any logical division of the 9th Circuit that doesn't breakup California. But there's actually a lot of headaches you would cause by how do we one state in two different circuit courts right you can have a circuit split over the meaning of like California state law. That would be bizarre. And so you know the real because I think conservatives who have you know been dissatisfied with some of the 9th Circuit rulings have been unsuccessful in efforts to break up the court the right way through Congress. I think you've seen more of a sustained campaign to try to portray the court as a radical outlier compared to its sister circuit courts.

 

Aaron Freiwald: [00:21:00.7] Well what is the real story there? Is the 9th Circuit which has been a target of criticism by conservatives over the years. Is that a perception or is there some reality to the sense among conservatives that the 9th Circuit is often at odds with their positions.

 

Steve Vladek: [00:21:23.35] So I mean I think to a degree both are true. So right now I think as a general matter the 9th Circuit is left of middle as compared to the other federal courts of appeals. And some of that's just a reflection of the overall population of the 9th Circuit being a more left of middle. I mean if we're if we're going by if we're if we're assuming that the circuit courts are meant to be at least somewhat representative of the populations that they cover that actually I think is largely just reflective of where the 9th Circuit sits. Right much in the same way that the 5th Circuit where I am here in Texas tends to be pretty right of center. So I think it's certainly true. And you know anyone who says otherwise would be you know trying to sell you something that the 9th Circuit is friendlier to you know progressive theories of law or the Constitution interpretation but not to the point where I think it's a radical outlier. Look I think what what folks missed in the conversation about the 9th Circuit is two things one that by dint of its size you are inevitably going to get more outliers than you would from a smaller court. So just to put this in perspective the 9th Circuit has 29 active judges the First Circuit which is all of New England has six. There are five times as many judges but also you know the 9th Circuit that the 9th Circuit is left of center does not mean it any more of an outlier than the Fifth Circuit which is Texas Louisiana and Mississippi or the 11th Circuit. Alabama Georgia and Florida are to the right of center. Right. These are these are parts of the country that are to the left to the right of the overall average. And so we actually ought to expect that you're going to get a difference in jurisprudence reflecting those values and reflecting those demographics.

 

Aaron Freiwald: [00:23:10.57] Well we have to come to the issue that the president railed against the 9th Circuit by the way improperly because it wasn't the 9th Circuit that made the decision in the first place and you make that point. Also a factual problem. But he does go on to single out judges by the president who appointed them which I do think sort of speaks to the partisan times we live in and the way Judge appointing and Judge confirming has become far more partisan in the last 20 years or so. But fill out that part of the story following the trial judge's decision because that sets up Chief Justice Roberts really extraordinary Thanksgiving response and rebuke of the president.

 

Steve Vladek: [00:24:01.48] Yeah I think that's right. And I just the I think you see it in media stories these days where it's hard to read a story in almost any publication. Yeah about a major court ruling that doesn't identify the president who appointed the judge as if that is somehow supposed to tell us some meaningful piece of information about the decision. And I guess my reaction is of course you know a president who appoints a judge. We could expect the judge to be you know perhaps more in line with particular views than others. I don't know why that is necessarily delegitimizing. It goes back to what we were saying before about the virtues of pluralism. You know ours is not a judicial system of robots. We expect to have judges. We want to have judges. We there would be no point if we didn't have judges who disagreed and who came at the same legal questions with very different priors. The question is why that should therefore impact how we view the correctness or the incorrectness of their decisions without actually looking at the analysis. And that's what drives me nuts about the example that actually set the president off in this case like you know. Yes Judge Tigar the judge who issued this TRO was appointed by President Obama but this isn't a close case. This is not a case where a liberal judge you know defied the plain language of a statute of the Constitution to reach a result that looks like it's a progressive policy outcome. You just enforce the statute. So the law professor in me sort of you know deeply understands why we want to know who appointed the judge but fears that we are in the process prioritizing and privileging that information over any assessment of whether we actually down the judge's reasoning convincing which really ought to be the touchstone it ought to be the linchpin to how we're assessing judicial decisions.

 

Aaron Freiwald: [00:25:56.36] Well and when we then consider what Chief Justice Roberts says and he comes out with this statement and says hey wait a second we don't have Obama judges and Clinton judges and Bush judges we have an independent judiciary. And that's something we should all be thankful for. That's a paraphrase but that's essentially his message. And I mean we know that historically that certainly is the ideal that we all hope is true about our judiciary that no matter which president appoints the judge or justice no matter what they did in their prejudge life some worked for the ACLU and some you know handled pro-life cases for an abortion group. You know by when they get on the bench they're a judge and they handle the cases that come to them and frankly over history many judges have surprised you know Justice Brennan was famously described as the worst mistake President Eisenhower ever made and there are many many examples like that but the ideal that Justice Roberts is expressing certainly seems like something very much worth preserving even if in reality it's not always the case.

 

Steve Vladek: [00:27:14.83] I think that's right. You know it's it's hard to divorce this from you know having just gotten through the Kavanaugh confirmation process. I think in many ways what you know took a lot of the bloom off the rose. Or at least would have whatever was left of it. You know I think too often we treat the federal courts as all being the same when there is such an important difference to me between the Supreme Court and the lower federal courts. I mean the lower federal courts you know a large percentage of what they do is simply apply precedent. Unlike the Supreme Court. They you know they don't have a lot of flexibility to choose which cases they hear. They don't have a lot of time to sort of sit back and you know wax philosophic about deeper longer term visions of of you know legal academic theories rather they're managers they're there to resolve the cases before them based on the law that they have. And I think the reality is that more often than not you know the ideology of a panel is not going to matter in the federal appeals courts. The problem is that when it matters the most is in the subset of cases to which the public pays the most attention which is the sort of the high profile constitutional questions of first impression. And that has a way of skewing our perception of what judges do when you know 95 97 98 percent of what the lower courts do is simply follow precedent that you know any competent judge of any background in any partisan affiliation would apply the same way.

 

Aaron Freiwald: [00:28:51.04] Well and if they didn't do that at certainly at the trial court level they would be reversed again and again and again by their appeals court. So they it doesn't mean they always do but that is what they're expected to do at that level.

 

Steve Vladek: [00:29:02.98] And the problem and the president I think you know is reflecting this this skewed view is that people focus on the tip of the iceberg because that's what they see. They don't appreciate that. You know they don't even know. They don't even understand that they're only looking at the tip of the iceberg and that they're failing to appreciate just how much of the work of the federal courts is happening you know where we don't see it and in a way that's just not at all controversial.

 

Aaron Freiwald: [00:29:29.02] Ok. So the president gets a decision from this trial judge that he doesn't like reversing his executive order and he goes on a Twitter rant. First of all blaming the 9th Circuit and saying from some now unpleasant nasty things about the 9th Circuit now you you've looked at this pretty carefully now and you found a number of inaccuracies. So we do need to set the record straight on a couple of the key points here because the facts do matter obviously.

 

Steve Vladek: [00:30:03.22] Yeah I mean so let's start with I think the most important point. I mean we've already sort of highlighted two problems one that this decision was actually a perfectly you know ho hum opinion applying the plain text of the statute and two that it was a district judge not the 9th Circuit. But with regard to the attack on the 9th circuit itself I mean it is commonly trotted out that the 9th Circuit has reversed 79 percent of the time. And here are the two critical things about that statistic. First it is grossly misleading because it doesn't talk about the denominator and I'll get back to that in a second. And second it fails to account for the fact that that is right in the middle of the average for federal courts of appeals and how they fare in the Supreme Court. So let me take those in turn. So it's a to the denominator. I mean the Supreme Court hears 65 to 75 cases a year ever since 1988. The court has basically had complete control over its docket. And so it's not taking every case from the lower courts it's not even taking a small percentage of the case from the lower courts.

 

Aaron Freiwald: [00:31:07.18] It's a tiny percentage. Yeah.

 

Steve Vladek: [00:31:09.13] I mean it's just you know for calendar year 2017 the 9th Circuit decided somewhere north of 10000 cases compared to right 65. From the Supreme Court. And of those 10000 cases I think the Supreme Court took you know 10 or 11 of them.

 

Aaron Freiwald: [00:31:29.17] From the 9th circuit.

 

Steve Vladek: [00:31:30.3] Right. So the reality is that when you look at these numbers over the last five terms two things are true. First the 9th Circuit is only the fourth most reversed appeals court. If you go by percentage. And second if you actually account for every single decision the 9th Circuit hands down the Supreme Court overall reverses less than point one percent of them. So you know right there off the bat we have a couple of important contextual points. Now one response that is but it's still reversed the most in terms of total number of reversals. And that's true over the last five terms. The 9th Circuit has been reversed 48 times in. Out of 60 cases total the Supreme Court has taken from the 9th Circuit. But it also has been affirmed the most times. Right. That's a reflection of the fact that it's the largest appeals court and it generates the most interest as a result.

 

Aaron Freiwald: [00:32:27.46] Well and the other part that the president goes after the 9th Circuit on suggesting that this is all about partisanship that it's all about the 9th Circuit being that liberal Obama court that's just ruling against me at every turn. That's really the the subtext to this attack has if you look at the facts about the makeup of the 9th Circuit you see that it's not what the president suggests it is at all. Right. You looked at the the numbers on the court and who appointed the judges on that court.

 

Steve Vladek: [00:33:05.17] Yes I mean I mentioned a little bit earlier there are 29 judgeships that doesn't mean there are twenty nine judges. There are actually more because there are a number of so-called senior judges that is judges who are you know on reduced duty. And you know President Trump has I think right now six nominations pending to the 9th Circuit assuming they're all confirmed which I think is a pretty safe assumption given how the Senate is looking for you know January 3rd. What we're we'll end up with is you know 16 Democratic appointees on the 9th Circuit 12 Republicans and one more vacancy. So if President Trump fills that vacancy. It'll be 16 the 13. By contrast the D.C. Circuit which you know folks tend to talk about as the most powerful of the federal appeals courts and certainly the most important as of today has seven Democratic appointees and three Republican appointees. So you know I just. The problem I think is that yes the president loses a bunch of these high profile cases in the 9th Circuit but that's not necessarily reflective of the 9th Circuit being an outlier as much as perhaps these policies being legally problematic.

 

Aaron Freiwald: [00:34:13.51] So putting this into you know stepping back from the details and trying to understand what's going on here and why is he doing this you know one way of looking at it is as you say that this whether intended or not these attacks the verbal attacks Twitter attacks things that he says in front of you know his supporters at a rally that these do tend to destabilize and delegitimize the institutions of our government. But you know one of the things that I think my own sense is that conservatives that Republicans generally have rested on in sticking with President Trump and supporting him not only voting for him but but also continuing to support him in spite of things that perhaps they don't like say his Twitter style and other things too. Is his role in putting judges on the bench Justice Kavanaugh and Justice Gorsuch behalf before him I think are seen by many conservatives as you know two of the great achievements maybe the capping achievement of our crowning achievement of a conservative change over in the federal bench and particularly in the Supreme Court. So is part of what could be behind this. Speaking directly to the people through Twitter on this issue and the way he's doing it be a way of his saying hey stick with me. I will continue to appoint judges you all know we should have on our bench.

 

Steve Vladek: [00:35:58.53] I guess although I have to say I do think that there is a bit of a discordance between those who are you know biting their tongues and sitting on their hands at all that things they don't like from this president because they like the judges there get it and abiding by these attacks on the judiciary because what's the point of getting these judges who you think are going to you know rule the way you want to apply to interpret the law the way that you think it ought to be applied interpreted. If the judiciary is going to be legitimized in the eyes of the people. So I guess I've never quite understood how how that's a straight line. I think the larger problem is that I think the president understands that there are more losses ahead of him. And so the more he can do to basically you know create this knee jerk reaction where someone sees that the president lost looks to see which court it was and says oh the 9th Circuit that doesn't mean anything. I think the more he's achieving his goal. And that's unfortunate because you know the 9th Circuit is a federal appeals court staffed by judges who are just as serious about their oath to the Constitution as judges in the other courts. And you know the president's losses I have to say have not been confined to the 9th Circuit. I mean there's you know major litigation right now in which the president has been on the wrong side in the federal appeals court in New York and the federal appeals court in Richmond Virginia in the D.C. Circuit. And so I think the attacks on the 9th Circuit are just this darker deeper play into the most base you know biases and prejudices of his base in ways that I would have thought those who are totally on board with his judicial confirmation project should actually be worried about.

 

Aaron Freiwald: [00:37:52.7] Well. And you brought up earlier Steve the point that the president may find himself and his own fate in the hands of the federal court not. I mean there's there's plenty of examples of this already and you mentioned some of them. There's also the emoluments case in the district court and I think in Maryland that's not going very well for the president right now but whether it's one of those or some issue arising out of the Russian investigation of Special Counsel Mueller it may end up in the Federal Court and ultimately in the Supreme Court. Which brings us back to Chief Justice Roberts and the statement that he felt compelled to come out with. And you know there's one even now Justice Gorsuch and didn't like it when the president was seen to be making some statements against the federal judiciary in a general and very political sense. So I mean this is of course highly speculating but can you see anything in or interpret Chief Justice Roberts actions here. Very extraordinary to to come out in the way he did as directly as he did and forcefully. And what that may may suggest about how these issues filter up to the Supreme Court and may affect how they handle issues in the future.

 

Aaron Freiwald: [00:39:15.21] I think we ought not to sort of jump to conclusions you know based upon one answer to one question that was put to the Chief Justice by a reporter. You know I think the devil's going to be in the details or put another way the proof is going to be in the pudding. Where you know the question is going to be whether the Chief Justice you know does something to suggest that he's troubled. You know. Whether this is going to affect how he looks at his case is whether he's going to be less deferential to the president whether you know his institutional tendencies are going to maybe win out over his more conservative ideological beliefs in some of these cases. And I think a good bellwether for that is you know there are all these pending applications from the solicitor general for extraordinary or emergency relief from the Supreme Court where the SG is trying to jump over lower courts in the census litigation which is in New York in the military transgender ban cases of which there are three all over the country in the Juliana climate change case from Oregon and you know to date the court has basically punted on most of those. I mean there have been a couple of dissent from Gorsuch and Thomas and one that Alito joined but what's been interesting so far is that none of the government's requests had been granted in full largely because the Chief Justice and justice Kavanaugh haven't been voting in favor of them.

 

Aaron Freiwald: [00:40:44.8] Interesting.

 

Steve Vladek: [00:40:45.87] And I think the question is going to be whether that continues and whether at some point we see some kind of not just you know negative votes from the Chief Justice and perhaps even Justice Kavanaugh but a statement that you know the federal courts are operating just fine that there is no reason for this administration to believe it can't get a fair shake in the lower courts first and to follow regular order. If and when they lose and I think that that would be such to me you know I think that won't be directed to the president it will be directed to the solicitor general but I think it would be a far more meaningful public statement from the chief justice you know asserting institutional prerogative of the court.

 

Aaron Freiwald: [00:41:26.58] So these are cases and that's a fascinating point these are cases where really if we translate this into into real lay speak it's almost like the president and the Justice Department through the solicitor general are going directly to the Supreme Court as if to say hey we know you're our friends over there in the Supreme Court. Help us out with this issue so we don't have to deal with it down in one of the courts below.

 

Steve Vladek: [00:41:52.23] Well and you know hey Supreme Court this district judge is being mean to us you know usually we'd go to the circuit court but we also think the circuit court is going to be mean to us so why do you just spare us all the trouble because after all we're the executive branch.

 

Aaron Freiwald: [00:42:06.78] Right.

 

Steve Vladek: [00:42:07.29] And you know what's remarkable is that there are more of these applications already in the first you know 22 months of the Trump presidency than in the two two term presidencies that preceded him combined. And I guess you know there has to come a point where one of two things is true either there is some deep great conspiracy on the part of all of these independent article three federal judges to screw President Trump or this is unusually unjustifiably aggressive behavior from the solicitor general that someone on the court ought to say something about.

 

Aaron Freiwald: [00:42:43.26] Well beyond just saying no when they get to them with these petitions. Right.

 

Steve Vladek: [00:42:47.58] Right because I think. And part of this and I think this is you know this is a point that's less about the president and more about the Justice Department. But you know the solicitor general alone among I think any man who appears before the Supreme Court has institutional both credibility and responsibility vis a vis the justices and only so much capital that we want the solicitor general to be able to spend in those cases where there really is some gravity behind the request for emergency or extraordinary relief. My concern wholly apart from the merits of any of these individual disputes is that we're heading toward a boy who cried wolf problem where you know the solicitor general asks for this kind of unusual relief so often that the court stops giving special consideration and special deference to the Government's position as compared to those of regular good old private parties.

 

Aaron Freiwald: [00:43:42.75] Wow fascinating. Well we'll keep an eye on that as well. Steve Vladeck of the University of Texas Law School. Thank you so much. It's been a great conversation on an extraordinary and developing battle between the president and the federal courts. Thanks so much for being on the program.

 

Steve Vladek: [00:44:02.19] Always a pleasure.

 

Aaron Freiwald: [00:44:03.09] Thanks.