We Need To Talk About Jurisdiction Stripping

In the fourth installment of our Hot Supreme Court Reform September series, Leah sits down with former FTC Chair Lina Khan and Lev Menand, both of Columbia Law School, to talk through ways to limit how much SCOTUS can mess with federal agencies. Lev makes the case for stripping SCOTUS of its jurisdiction over administrative law and sending those cases to a specialized court, and Lina discusses venue and standing issues—reforming who gets to sue and where. Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected]

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Leah Litman?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the 10 Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the 10 Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this.

• 0:40Speaker 01

  They're going to go up, but we're going to fight to get them taken down.

• 0:45Leah Litman?

  That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies, like these 10 Commandments laws and the decisions the Supreme Court hands down. Every child deserves access to public education, where they aren't subject to state-imposed religion or religious instruction or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org/10c to learn more about this case and how you can help join the fight to protect

• 1:30Leah Litman?

  church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back.

• 1:41Speaker 02

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano made with premium chocolate between two delicate biscuits, a Sausalito baked with rich milk chocolate chunks and macadamia nuts, or the simple buttery goodness of a chestman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two. Pepperidge Farm, have a little taste.

• 2:12Speaker 03

  Mr. Chief Justice, please report. It's an old joke, but when a hargained man argues against two beautiful ladies like this, they're going to have the last word.

• 2:25Speaker 04

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 2:55Leah Litman?

  Hi, everyone. Welcome back to your Strict Scrutiny bonus series, Hot SCOTUS Reform September. I am here with two guests to discuss, kind of, two SCOTUS reforms. Had to sneak in some extras. They are both first-time Strict Scrutiny guests. One is Lev Menand. Lev is an associate professor of law at Columbia Law School. He is also the expert on the uniquely structured quasi-private entity that follows in the distinct historical tradition of the First and Second Banks of the United States. Yes, I'm talking about the Federal Reserve Board. Welcome to Strict Scrutiny, Lev.

• 3:27Speaker 05

  Thank you.

• 3:28Leah Litman?

  The other guest today is Lina Khan. Lina is an associate professor of law at Columbia Law School and the former chair of the Federal Trade Commission from June 2021 to January 2025. Welcome to Strict Scrutiny, Lina.

• 3:41Speaker 06

  Thanks for having me.

• 3:42Leah Litman?

  So, consistent with the conceit of Hot SCOTUS Reform September, we're going to be talking about some specific SCOTUS reforms on this episode and go through the standard questions we cover on all of these episodes, what the reform is, what it addresses, what are possible legal issues, possible variations on it, and whatnot. But this time, because we have two guests, we might be talking about two kind of distinct sets of SCOTUS-related forms, some that will touch on addressing the Supreme Court's authority to use statutory interpretation to mess with federal agencies, and the others reforming the dockets of the lower federal courts to minimize their ability, and by extension, the Supreme Court's ability to mess with federal agencies. Ready, Lev and Lina?

• 4:22Speaker 06

  Great.

• 4:22Speaker 05

  Yes.

• 4:23Leah Litman?

  Okay. So, let's start with some of the more general questions. The first, and Lev will call on you for this one first, is what is one of your least favorite things about the Supreme Court?

• 4:35Speaker 05

  I think, you know, the hagiography of the justices, which is related to the size of the court. The court is too small. One or two justices are too often determining outcomes of enormous consequence. And I think this really undermines legal legitimacy. It interferes with the ability of the legal system to sort of promote social cohesion, because we're like associating particular legal decisions with personalities, you know? Justice Kennedy got us X. Justice Ginsburg got us Y. Justice Roberts saved Z. And this is sort of inconsistent with rule of law ideas,

• 5:19Speaker 05

  and it's inconsistent with, I think, founding principles of the country, that we have a sort of government of laws and not of men, of individuals.

• 5:28Leah Litman?

  We should all know less about the justices, and we should not be even aware that there are photographs of Brett Kavanaugh running a 5K. We aspire to that.

• 5:37Speaker 05

  Yeah, and if you look at other countries, they seem to have figured this out, you know? In a lot of other peer countries, nobody knows who the justices are. And they certainly are wearing T-shirts with their faces on them.

• 5:50Leah Litman?

  Indeed. Lina, how about you? What's one of your least favorite things about SCOTUS?

• 5:55Speaker 06

  One of my least favorite things about SCOTUS is the perpetual self-aggrandizement that we've seen by the court now over several years, coming up on several decades. The courts, the federal courts, play an incredibly important but limited role in our constitutional system. And what we have been seeing now for some time is a huge power grab by the courts, often at the expense of Congress. Congress is Article I in our Constitution. Federal courts are all the way back at Article III, and yet, we have seen just a, you know, time and time again, an effort by the courts to effectively be a veto point in all sorts of what I see as illegitimate ways over Congress. I think this is part of a broader pathology

• 6:40Speaker 06

  in the elite legal establishment, where even how the courts are taught and conveyed to law students in law school is very different from how Congress is talked about. Congress is often talked about with some disdain as this messy institution that can't do anything. The courts and the justices are enormously revered. And I think that asymmetry kind of trickles all the way up to how the court itself treats Congress, which is with an enormous amount of disdain. And so I would say that is top of my list.

• 7:13Leah Litman?

  Yeah, that is reminding me of Pam Carlin's Harvard Law Review foreword from a few years ago, Democracy and Disdain, where, you know, she very much talks about that. And on that Article I, it's first, I remember vaguely from Sale Law versus CFPB that the court told us one is somehow a more important or significant number than many. Okay. So, I know we were thinking about talking about two different kinds of SCOTUS reforms. So, Lina, I'll put this question to you, because I think this is the SCOTUS-related form that you are potentially interested in. And that is docket reform of the lower federal courts. So, could you talk a little bit about how the existing jurisdictional authority

• 7:58Leah Litman?

  of the lower federal courts leads to some dysfunction? And so why docket reform of the lower federal courts might be important?

• 8:05Speaker 06

  So, my entryway into this whole conversation is through my time in federal government, where most recently, I had the honor of being chair of the Federal Trade Commission, where we were pursuing a whole set of rules and policies to make sure that the economy was fair and competitive and honest, or where working people were not, you know, being tricked and deceived. And it was just staggering to see how, time and again, big businesses and the Chamber of Commerce and other corporate trade lobbies were able to game the courts to challenge our rules, but also the rules of agencies across the federal government. This is a moment where there's a lot of conversation around reforming government. How do we make sure government is actually

• 8:49Speaker 06

  serving the needs of working people? And definitely, on the side of the economic agenda, there were countless policies that the last administration pursued, oftentimes as common sense as the airlines can't lie to you about how much a plane ticket costs. That went to go die at the doorstep of some federal judge in Texas. And so, just the endless tactics that corporate lobbies in particular use, and the ways that courts have become extraordinarily accommodating of all sorts of tricks with standing and venue, I think is an area that we need serious reform. If we are going to get to a government that can actually pursue economic policies that serve working people.

• 9:32Leah Litman?

  Just as we should all know less about Supreme Court justices and Brett Kavanaugh, we should also not even know who someone like Matthew Kaczmarek or Reed O'Connor is, those district judges in Texas who were oftentimes overseeing some of the challenges to the last administration. So, Lena, I'll follow up with you in a second, but Lev, I know you were interested in talking about why, in addition to potentially limiting the Supreme Court's authority over constitutional questions, there are also major issues that arise when the Supreme Court is interpreting statutes. So could you talk a little bit about why that is a potential area of Supreme Court reform as well?

• 10:12Speaker 05

  Yeah, so one of the problems we have right now is that the current court is composed of justices who are undermining the constitutional system in various ways. My colleague, Tom Merrill, has used the word deforming. They're kind of deforming the Constitution, and I think this is a crisis. But there's another problem that's unrelated to the composition of the current court, and that's just that the court has too much power in our system and too much responsibility. It's deciding too many important issues, and that undermines its ability to decide issues effectively and in ways that are socially legitimate. And it reduces the quality of decision making, just, you know, for obvious reasons.

• 10:53Speaker 05

  Humans have cognitive limits, and there's plenty of social science that shows that you spread people too thin and you just sort of start to see bad results. And I think that the history of the court over the last several decades is a great example of that. And so in some other countries, there is a separate court that is the highest court for administrative law that just specializes in evaluating challenges to agency actions, statutory interpretation questions arising in those challenges, and the whole panoply of challenges under, you know, APA-style statutes.

• 11:38Speaker 05

  Andrew Hammond has a great paper about the Conseil d'Etat in France, which is one example of this. And there's a lot of reason to think that something like this, not a copy and paste job, something like this might make sense here. And so, you know, the Supreme Court would still be the highest court for constitutional challenges, but there would be another court. We would strip jurisdiction from the Supreme Court to hear administrative law challenges. It would be another court that would be the highest on those issues. And that could be the D.C. Circuit, or it could be a new court that had responsibility for that.

• 12:21Speaker 05

  And I think we would see potentially a lot of benefits. There could be some costs associated with it, but we could see a lot of benefits in terms of literally better, better reasoned decisions, more thoughtful decisions from a group of judges who are selected for their expertise in this area.

• 12:41Leah Litman?

  Could you give an example of, like, an administrative law case or, you know, a significant case involving administrative law that wasn't a constitutional one, just so people have some sense about the kinds of cases we're talking about when we're envisioning, you know, a specialized or expertise-related court in that space?

• 12:59Speaker 05

  Yes, I mean, there's many of these. You know, my mind immediately goes to cases that are older, obscure, or in banking law, because I'm primarily a banking law scholar. So, Nations Bank versus Dalek is an incredibly important 1990s decision, 9-0, Ruth Bader Ginsburg opinion, decision's completely wrong. Just, you know, just mistakes.

• 13:25Leah Litman?

  And what did it decide?

• 13:26Speaker 05

  About how banking works, how banking law works, just nobody understands what's going on there. But, you know, more recent cases, prominently Ohio versus EPA.

• 13:36Leah Litman?

  Yeah.

• 13:37Speaker 05

  Which was about pollution, air pollution, and the Supreme Court stepped in to halt Biden administration initiative on air pollution. And that was done under the Administrative Procedure Act. It was an arbitrary and capricious review case. And you could just provide that there is no arbitrary and capricious review at the Supreme Court for the Clean Air Act.

• 14:00Leah Litman?

  Yeah.

• 14:01Speaker 05

  And that's not some incredibly novel thing. Congress actually does jurisdiction stripping from the federal courts generally all the time in statutes. And so there was just a decision a couple of weeks ago about temporary protected status.

• 14:18Leah Litman?

  Yeah.

• 14:19Speaker 05

  And there were two prongs in that decision, and the first prong was about determinations of the secretary, and that was a jurisdiction stripping, you know, in miniature provision that said that there is no arbitrary and capricious review of the secretary's determination about country conditions.

• 14:34Leah Litman?

  Right.

• 14:35Speaker 05

  And so this would just be a broader jurisdiction strip from the Supreme Court. You may even think of it as a jurisdiction channel and say, there's going to be a court that's going to consider this stuff, and it's not the Supreme Court that is focusing on constitutional law challenges.

• 14:50Leah Litman?

  Yeah, and so just to, again, give some people a sense of the importance of these cases, so arbitrary and capricious review is a non-constitutional question that federal courts are asked about agency determinations. Is determination arbitrary and capricious? You know, did the agency sufficiently explain itself and, you know, make sense of the underlying evidence? But there are also statutory interpretation questions, like, does the relevant federal law give the agency the authority to make this rule? And under the guise of those two questions, arbitrary and capricious review and the agency's statutory authority, the Supreme Court has struck down, you know, you noted, the Biden administration pollution rule. That's also the grounds in which they struck down the COVID vaccination requirement, the

• 15:34Leah Litman?

  Clean Power Plan, you know, et cetera, et cetera. Lena, you know, I wanted to come back to you because you mentioned that these corporate associations and interests were basically able to game the system and select particular judges. Could you talk a little bit about what the existing rules are that they could or did attempt to make use of that might be ripe for revisiting, or how those rules might give a leg up to these kind of corporate interests rather than, let's say, economic justice plaintiffs?

• 16:05Speaker 06

  Yeah, so two areas we see this in particular is around doctrines of venue and standing. So this is about who gets to sue and where do they get to sue? And these are both tools that are now being used, I think, in fairly cynical ways, and we're seeing courts apply very different standards when it's an individual trying to sue versus when it's groups of corporations trying to sue. Just to give a couple of specific examples, in the last administration, the Consumer Financial Protection Bureau pursued a rule that would have closed a loophole allowing excessive credit card late fees. And so this would have ended those excessive credit card late fees, saving Americans to the tune of $10 billion per year.

• 16:46Speaker 06

  They were sued by the Chamber of Commerce to get standing, to be able to sue in Texas. The Chamber of Commerce teamed up with a local branch in Fort Worth, but it turned out that there was no credit card company, even in Fort Worth, that would have been affected by the CFPB's rule. And so to be able to still sue, the organization cited a general interest in wanting a favorable business climate in Fort Worth as a basis for why they should be able to sue. The judge in Texas actually did send the case back to D.C. on a couple of instances, but by the time this got up to the Fifth Circuit, the Fifth Circuit ultimately ended

• 17:27Speaker 06

  up blessing the ability of the chamber to sue in Fort Worth despite not having--

• 17:32Leah Litman?

  Raise your hand if you've ever felt personally victimized by the Fifth Circuit or a district judge in Texas. Lena, your hand should be up, as should everyone's. Sorry.

• 17:41Speaker 06

  So, you know, that's just an example of, especially given how Texas has become a hotbed of judges who make no secret of how they are ideologically driven, very hostile to, you know, economic policies that risk upsetting vested interests. That was a go-to place for a lot of the challenges of the Biden administration's economic rules. The other area where we've seen a lot of mischief is when it comes to standing. And so when we've seen the courts apply pretty demanding standards when you have individuals looking to sue, what we've seen increasingly is groups of businesses, oftentimes, you

• 18:24Speaker 06

  know, represented by associations, trying to claim associational standing, where the rules just end up applying in a very different way. And so, you know, where the FTC had a whole set of rules, one being our non-compete rule that would have eliminated non-competes that prevent people from freely switching employers. We also had a rule that would have expanded the type of information that businesses have to submit to government when they are looking to merge. In both of these instances, those FTC rules were challenged by the Chamber of Commerce and other business groups. And it was really interesting because when citing their basis for suing, these associations

• 19:05Speaker 06

  would basically cite two anonymous affidavits by firms that were not identifying themselves and were basically saying that they risked future harm in a fairly speculative way. And in these instances, as well as in instances where CFPB rules were being challenged, the courts ended up blessing that tactic of using anonymous affidavits by corporations that were not identifying themselves. And these, you know, associations and business organizations that claimed generically that they had members but not being asked to specify in the way that we expect when individuals are suing, they have to explain how it is that a particular, you know, policy risks injuring them.

• 19:50Speaker 06

  And so we've seen a total relaxing and loosening of the rules when it comes to standing in a way that has allowed these groups of businesses to basically run roughshod over all sorts of policies. I think the other place where we see this make an impact is when it comes to injunctions. And so we've seen that these types of business organizations are able to oftentimes effectively obtain nationwide injunctions on the basis of their unnamed members in ways that individuals would really struggle to get.

• 20:22Leah Litman?

  Yeah, Justice Jackson had a really good dissent in Diamond Alternative Energy where she laid out the kind of courts, the Supreme Court's disparate treatment of standing when it came to big corporate interests versus, you know, individual plaintiffs and whatnot. So this is a phenomenon that has unfortunately been kind of all up and down the federal courts.

• 20:44Leah Litman?

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• 25:36Leah Litman?

  Lev, I now want to come back to you because we were beginning to flesh out some of the specific problem areas and also some specific solutions. So in the problem bucket, you know, we had the court potentially manipulating issues of statutory interpretation to artificially constrain some agency's authority. We also had the federal court's ability to say, "We don't think you agency had sufficient evidence or that you adequately explained yourself," and using that as a kind of fig leaf, you know, to undo regulatory policies that they might not be sympathetic to. And some of the solutions that you were beginning to gesture at were, one, maybe entire jurisdiction stripping. So saying no federal court, for example, might be able to determine whether an agency's

• 26:20Leah Litman?

  regulation is arbitrary and capricious. But a second possible kind of solution would be a specialized circuit, you know, giving the DC Circuit or some other court, you know, the jurisdiction to decide questions of banking or questions related to administrative competence. Are there other kind of possible solutions beyond those two and other possible problems that any solutions should be aiming to address?

• 26:47Speaker 05

  Yeah, that's a complex question, a set of questions. So there's no easy fix to the current situation, although it may be the closest thing would be an across-the-board Supreme Court jurisdiction strip for administrative law and a sort of start over, create a new administrative law court. If you don't do that, coming in and just sort of saying, "No more arbitrary and capricious review," that's not such a great solution for two reasons. One is, there's a bunch of circumstances where you may want arbitrary and capricious review.

• 27:32Speaker 05

  The idea that, or at least optimally, you would want it. The idea that we would just say, "We're going to take judges out of this entirely," that's going to come with real costs. We might do it anyway because the judges we have are not doing a good job. We need to evaluate, like, how well is arbitrary and capricious review being done? We might think, "Oh, it's being done so poorly, we'd be better off without it." But we're, you know, we're still sacrificing something if we just say we can't even have arbitrary and capricious review for anything. So that's one problem. Second problem is, judges are clever people who went to law school and, you know, business interests especially, hire clever lawyers.

• 28:14Speaker 05

  And there's lots of ways to attack government rulemaking in particular, but also government adjudications. And you're likely to see a sort of squeezing the balloon type of effect with certain sorts of changes. And so if you just said, like, "No arbitrary and capricious review," you might give rise to a real change in legality review or a significant change in procedural review for compliance with the notice and comment requirements. And for that reason, a sort of more structural change is likely to dominate a more targeted sort of tweaking of the APA.

• 28:58Speaker 05

  There's like a mismatch that I think some people miss. I would just add, as a general matter, putting aside the courts, I think our administrative law should be more tailored, and so we should have a more pluralistic approach where we do more in law by statute.

• 29:18Speaker 05

  To modify, to vary where we have arbitrary and capricious review and where we don't. We already vary it, but we could be doing more tailoring. And also to tailor notice and comment requirements.

• 29:32Leah Litman?

  Yeah.

• 29:32Speaker 05

  Which have really expanded through judicial elaboration. And that elaboration is at least putatively monistic, applying across the board. And the truth is, there's a bunch of stuff that agencies do that should have very different sort of notice and comment requirements from other stuff that they do. Because substantively, they're very different things. And there's this mismatch between process and substance in, in certain parts of the law that's just suboptimal.

• 30:03Leah Litman?

  Yeah, so just to jump in for a second, like notice and comment rulemaking, just for people who might not be familiar, that is the required process for agencies, or at least a lot of agencies, to create formal regulations. They have to go through this process of notice and comment. And that is a process that is laid out by statute. But as you suggested, the Supreme Court has elaborated, let's say, on what that process exactly looks like. And I think also, just to your point about the kind of pluralism and that being desirable, I think right now, in a lot of debates about administrative law and let's say, federal courts authority over administrative law, sometimes result in someone like Neil Gorsuch,

• 30:45Leah Litman?

  a very aggressive, let's say, attack dog on the administrative state, pointing to examples where, let's say, the Bureau of Immigration Appeals or immigration law, right, abuses administrative law and therefore requires judicial oversight as a reason to allow him to, let's say, bully the Federal Trade Commission. But those might be two different contexts that require two different approaches, right? Maybe more judicial oversight in one versus the other. I take that that's kind of like one aspect of pluralism.

• 31:15Speaker 05

  Yeah, there's totally different political economies in different parts of the administrative state. Sometimes the interests of well-resourced litigants are aligned with the agency. And we should think about those sorts of lawsuits very differently than when well-resourced interests are obviously non-aligned with the agency and with the public interest. And, you know, sometimes, in the past, Congress has been cognizant of this and tailored statutory schemes. But in areas especially where the APA has been elaborated by judges, we don't see that tailoring sufficiently. And that's, it's a real problem. And yes, it leads also to this sort of, this argumentation, this rhetoric that is slippery

• 31:58Speaker 05

  because we're, we're ignoring what's going on substantively and just sort of pounding on fair process, when sometimes certain sorts of fair process are actually structurally very unfair.

• 32:11Speaker 06

  And there's a great Law Review article on this point by Jessica Bullman Posehn and Emily Tredoff called "The Administrative State's Second Face," that basically teases out how there are actually kind of two very separate forms of administrative state, one of which is much more focused on economic regulation and benefits, and the other, which is much more focused on the use of physical force by the government and how these end up being treated, you know, getting very different treatments. And we should probably have more tailored regimes to acknowledge those differences. I would also add on that, the sets of, of government rules that are about shaping or constraining the power of major businesses and corporate interests should probably require a different set of procedures than government rules and regulations that are targeting specific individuals and just the realities of those being very differently situated.

• 32:57Leah Litman?

  So since Lev was beginning to spell out, you know, some particular reforms, and those reforms would require statutory amendments, let's say, Congress amending the Administrative Procedure Act, right, or Congress stripping court's jurisdiction. Lena, some of the reforms that you were gesturing at, like reforming venue rules, you know, the ability to pick where to file, maybe amending rules governing, you know, when certain declarations can be submitted anonymously. And then there are, of course, the rules of standing. Now, my sense is some of these would probably be just fine to do by statute. And others potentially will encounter a Supreme Court who thinks that there are constitutional

• 33:40Leah Litman?

  limitations, right, on Congress's ability to adjust those rules. So could you say a little bit more about maybe some reforms that could be done by statute? And which reforms this Supreme Court might attempt to yeet into the sun?

• 33:55Speaker 06

  Yeah, I mean, there are certainly reforms that you could try to pursue through the federal rules of civil procedure. You could have, you know, them, that effort try to prevent egregious types of venue shopping. You could have the Administrative Conference of the US also endorse reforms to, to stop venue shopping. I think beyond that, you could have Congress do some of this directly through legislation. And I think it's also why, as part of the broader court reform conversation, we actually need to do the reassertion of Congress as a part of that broader project. Because, you know, the, the gutting of congressional capability was also part of this broader project.

• 34:37Speaker 06

  The Gingrich Revolution in the 90s ended up really stripping the ability of Congress to do complex policymaking by itself. They fired a whole bunch of professional staff. They really limited the ability of, of Congress to do basic fact gathering, to do basic policy research, to do basic technical analysis. And that has led to a whole set of problems, some of which they've tried to solve through delegating more to independent agencies and, and cabinet agencies. But as we see pushback there, it's going to require a real fixing of Congress to make sure that it is able to fully play the role that it's supposed to in our constitutional design.

• 35:16Leah Litman?

  Yeah, will a real Article 1 slash Congress please stand up?

• 35:21Speaker 05

  I would just say, you know, one of the striking things about this area is, it's kind of hard to imagine the Supreme Court invalidating on constitutional grounds some of the reforms we've been talking about in part because...

• 35:33Leah Litman?

  Why don't you say which ones? Because I'm curious to hear more about this.

• 35:37Speaker 05

  Yeah, you know, forum shopping changes.

• 35:41Leah Litman?

  Yeah.

• 35:42Speaker 05

  The jurisdiction stripping that we've discussed, rationality review, even legality review, the creation of a specialized administrative court, you know, a three-judge rule for challenges to administrative actions of various kinds, changes to venue, changes to standing. These build on existing uses of these tools that Congress has deployed just narrowly. The Clean Air Act, you know, already provides exclusive jurisdiction to the DC Circuit for challenges to EPA regulations with national applicability. And we already have, we meant, I mean, and we talked a little bit earlier about the idea

• 36:26Speaker 05

  that sometimes agency actions are not reviewable as arbitrary and capricious at all, period. And so it's hard for me to see the court coming in and saying, you can't stop forum shopping in the Northern District of Texas by law, or you can't, you know, strip our jurisdiction to review APA challenges, just because that's sort of been done already and everybody kind of accepts it.

• 36:49Leah Litman?

  I just want to interject a little bit here. I don't know if this is one of those rare occasions where I think you might be a little bit more optimistic about the court than I am, because I totally agree with you that the practices we've been talking about have been done, right? And the question is just where they are applied. And so if you are imagining a court being consistent, then of course, I agree with you that these other kinds of reforms should be just fine. I do not envision, right, this court necessarily being consistent. And in particular, I can imagine someone like Neil Gorsuch, right, potentially getting to assemble a majority of five to say, well, it's one thing to strip like certain kinds of jurisdiction, it would be another to do arbitrary and capricious review entirely. Would that be a principled line?

• 37:34Leah Litman?

  No, but it would vaguely gesture at something in the federal court's casebook, the Hart Dialogue, right? And they would say, that's good enough for government work, therefore QED, right? And similarly on standing, right? Like there, the court has kind of come down on Congress's ability to authorize at least certain kinds of plaintiffs to sue. So I guess like I am a little bit more pessimist, pessimistic that this court would allow all of the kinds of jurisdictional reforms that we have been talking about, even though I agree, every single thing we have listed is something Congress not only has done, but something that's been accepted, like when Congress has, has done it.

• 38:17Speaker 05

  That's a helpful reality check, yeah.

• 38:19Leah Litman?

  That's what I'm here for. Okay, so I wanted to kind of come back to you both. And I realize these are also going to be like tough, big questions, but there is so much we could talk about and say, I did want to ask you both two things, I guess, three things, but I'll ask two of them together, and then I'll ask you one final question. The two things are, is there any additional kind of potential reform in this space that we haven't talked about that you at least want to put on people's radar? And two, is there any additional problem, right, or a specific problem that you think people should keep in mind when they are thinking about Supreme Court reform in this

• 39:04Leah Litman?

  space? So either of you can go first.

• 39:07Speaker 05

  So I think this dovetails nicely on what we were just talking about. Court expansion obviously looms large over the entire discourse about reforming judicial review of agency action and just the structure of Article III courts in general for the reason that there's not much point, there's not no point, but there's not much point in expending a huge amount of political resources to pass legislation that's just going to be invalidated by the court. And so to the extent we think that... Really important and salutary structural

• 39:47Speaker 05

  changes to the way in which the administrative state and the courts work together in our government are necessary and are going to be invalidated. That's an argument for court expansion. And I think that needs to be on the table. Where we started was, I think there are independent arguments for court expansion that have been looming over us for honestly decades. And I'm struck that there hasn't been, for a much longer period, a much more intensive examination of the costs of a court of this size that makes the number of 5-4 decisions that this court does,

• 40:29Speaker 05

  and ways to try to avoid that, and the costs of personalizing justice in this country, and ways to try to avoid that. And so I think, you know, there's a way in which this is all sort of linked together, and it's important, you know, it's important to dive into the narrow details of judicial review of agency action, but also to keep in mind that it's part of this broader public economy and issues with our constitutional system and current configuration that need to be grappled with.

• 41:00Speaker 06

  I would say generally at this moment where at best you see the federal government missing in action, and at worst you see them use the rule of law to reward friends and punish enemies. It has really underscored the importance of empowering state actors, local actors, making sure that we have robust private rights of action. And those are all areas where we've also seen the court really limit rights. And so, you know, the doctrine of federal preemption and instances where that has been used to gut the ability of states to protect consumers, you know, the perversion of the Federal Arbitration Act, the narrowing of ability to band together and bring class actions. I would say those are all domains where we actually need to have

• 41:44Speaker 06

  robust reforms. And I think that is in particular seen at this moment where, you know, the ability of state AGs to sue to block mergers that the federal government is ignoring, even though they're blatantly illegal, because it's their friends looking to merge. Instances where we're seeing, you know, huge gaps on consumer protection and people being preyed upon and, you know, encountering scams left and right. I think a whole set of reforms that are equipping people to sue who are, who are being tried to kept away from the courthouse is going to be important.

• 42:15Leah Litman?

  Okay, so last question, I'm going to give you an option, right? Of which to answer, or you can try to answer both. Two questions. One, least favorite thing that the Supreme Court did last term? And two, if people are interested in learning more about this kind of Supreme Court reform or court reform, where should they go?

• 42:38Speaker 05

  There's so much to choose from on least favorite thing from last term. It's really one of the worst terms in the history of the court, probably. It hit new lows on a lot of areas, overturning precedents, arrogating law declaration authority that belongs to Congress. And, you know, my, my immediate instinct is to say slaughter, because I do a lot of work on separation of powers and executive power, and that decision is wrong in so many ways. But I actually think my least favorite thing would have to be the court's decision in Mullen versus Doe, which is the TPS case

• 43:21Speaker 05

  that we touched on briefly earlier. And there were two issues there, and we talked a little bit about the determination issue because of arbitrariness, capricious review. But the second issue was an equal protection issue. And they got both issues wrong, but that actually isn't why, isn't why I hated that decision. It, it is the court's wholesale misrepresentation of the facts that really troubled me. It's, it was an Orwellian decision. And let me just quote it. The court said that none of the president's statements

• 44:03Speaker 05

  about Haitians was overtly racial. And the court also said, in substance, all express policy views that could rest on race neutral justifications. Now, the majority opinion doesn't reprint the statements, but the dissent does. And one of the statements was Haitians are, quote, poisoning the blood of our country. And I just, I'd like the justices and the majority to provide to the American people a race neutral policy basis for that position. It's, it's just saying the sky is purple.

• 44:45Speaker 05

  You know, we were always at war with East Asia or whatever in 1984. It's, it shocks the conscience and I think is a, is a new low in what Shalev Royzman called fact avoidance. It's just fact fabrication.

• 45:05Leah Litman?

  Yeah.

• 45:06Speaker 06

  I'll answer the second question in light of it being difficult to top with, to compete with that one. You know, I think, big picture, as we're seeing the least accountable branch of government constantly subvert and undermine the most accountable branch of government. I think we need a broader effort among lawyers to kind of become champions for Congress. And I think there is a longstanding view of Congress as this, you know, weak and effective branch. And, you know, a lot of it, I think, was created that way in the last few decades in terms of the gutting of Congress. But I think there is actually a lot more that Congress could do. I'm in the middle of reading Congress's Constitution by Josh Chavitz that I think gives much more, you know, engages with Congress

• 45:49Speaker 06

  in a much more robust scholarly way than we often see from law professors. And so that's something I would recommend, as well as just that being a general area where we need much more scholarly engagement.

• 46:00Leah Litman?

  Well, Levin, Lena, thank you so much for taking the time to share with us your thoughts about Supreme Court reform. Again, there is so much more we could say, and I'm sure we will be calling on both of you to continue this conversation in the future. So thank you again.

• 46:15Speaker 06

  Thanks, Leah.

• 46:16Speaker 05

  Thank you.

• 46:21Leah Litman?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Raul and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt Degrobe, Ben Heathcote, Johanna Case, Kenny Moffett, Adam Lippert, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

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