Supreme Court Justice Brett Kavanaugh 2023 Notre Dame Law Review Federal Courts Symposium

3:39AM Jan 27, 2023

Speakers:

Justice Kavanaugh

Keywords:

notre dame

question

dc circuit

people

chevron

writing

court

important

justice

congress

colleagues

judge

clerks

justice gorsuch

thought

law

statute

president bush

agency

opinion

Good afternoon, and welcome to the Notre Dame Law reviews federal courts symposium keynote address. I am Nicolas de Andrei, Editor in Chief of the Notre Dame Law Review. As a reminder, please refrain from taking photos or videos during this keynote. Today's remarks are being recorded and will be available after the conclusion of the event. If you'd like to submit a question for our q&a portion, please do so via the QR code QR code that you received on the way in. Today, the larger view has the pleasure of welcoming nine esteemed authors to Notre Dame to discuss their scholarship on the history and judicial review of the Administrative Procedure Act, which is forthcoming in the Notre Dame Law reviews annual issue on federal courts practice and procedure. The panels today feature engaging in academically rigorous discussion and a lot of you and I are grateful to the authors for their time and contributions. Before setting the stage for today's keynote address, I'd like to welcome justice and SEPs of the African Court on Human and People's Rights, who is visiting Notre Dame Law School is a distinguished global jurists in residence, justice and Cepsa. Welcome.

Our moderator moderator today will be dean G. Marcus Cole, Dean of the Notre Dame Law School. He'll be fielding questions for our keynote speaker. Thank you, Dean Cole, for being here and for your support of the Law Review. Next, I'll introduce today's keynote speaker, Associate Justice Brett Kavanaugh. Justice Cavanaugh received his BA from Yale College and JD from Yale Law School. He began his legal career clerking for Judge Stapleton on Third Circuit, Judge Kozinski on the Ninth Circuit and for Justice Kennedy on the Supreme Court, after clerking he was an attorney and the office of the Solicitor General and the Office of Independent Counsel. Then from 2001 to 2003. He was associate Associate Counsel and then Senior Associate Counsel to President George W. Bush, who was a partner at a Washington DC law firm from 97 to 98. And again from 99 to 2001. From 2003 to 2006, he was Assistant to the President and staff secretary for President Bush. He was appointed as a judge to the DC Circuit in 2006 and 2018, he was nominated and took a seat on the US Supreme Court. He is married to his wife Ashley with him he has two daughters. Justice Cavanaugh is no stranger to the Notre Dame Law Review, as he has taken part in symposium issues for both volume 89 and volume 92 While he was serving as a judge on the DC Circuit. Today, we are honored to host him again as an associate justice for the US Supreme Court, please stand and join me in welcoming justice Brett Kavanaugh.

So, Justice Cavanaugh needs new assistance for me. I'll quickly provide an overview of our symposium topic, and then hand it over to Dean Cole and justice Cavanaugh. As I mentioned earlier, the larger US federal courts issue will include scholarship on the history and judicial review of the Administrative Procedure Act or the APA. In the 76 years since the passage of the Administrative Procedure Act, the American administrative state has grown and developed in ways that APA drafters may not have originally foreseen. This has contributed to a rising tide in interest in revisiting the foundations of the APA, which some have dubbed a quasi constitution of the administrative state. Recently, new research from professors Emily Bremmer and Katie Kovacs has offered the first comprehensive collection VAs legislative history, shedding light on an a traditionally opaque record. This scholarship yields questions that are both novel and persistent and administrative law such as What methodology should courts employ when interpreting the APA? Does the APA compel or or allow some form of APA common law? What are the implications of this research on judicial review of agency actions and the remedies federal courts may grant? Just Kevin of course, has published several piece pieces on administrative law and we're eager to hear his remarks on both administrative law and his judicial experience on both the DC Circuit and the Supreme Court. Thank you again, Justice Cavanaugh, and Dinkle. I will pass it over to you to kick off today's conversation.

Well, first, I want to welcome justice Cavanaugh, you're always welcome here at Notre Dame and we're always excited to have you here. So thank you for for coming. Well, thank

you, Dean Cole, for having me and thank you for the introduction. And it's wonderful to be back at Notre Dame. This is one of the finest law schools in America with a spectacular faculty and wonderful students in this symposium to be back at this which Professor Barrett then started, I guess student Barrett started it when she was on the war view herself. And I did it in 2014 and 2017. I was in introduced in 2017, by Professor Barrett, I was the DC Circuit, I'm confident that neither of us had any idea what was to happen to the two of us over the next few years. And it's wonderful to be her colleague what a what a great representative of Notre Dame Law School and of Notre Dame, that she is a great friend and spectacular judge and colleagues being back at Notre Dame, I've hit it all in the last I've been here 24 hours, and I came in, and I think I've hit the Notre Dame experience, I went to the women's basketball game yesterday, which is a great team, I went to the 10pm, mass and pangburn Hall last night, which is part of the experience and then today, and it reflects Notre Dame academic excellence, the spiritual foundation, the Catholic tradition of service to others, and the school spirit reflected in the sports program. So in 24 hours, I feel like I'm touching all thank you for having me again, Dean Cole, thank you for everything Dean Cole's doing to lead this fantastic law school. I appreciate all that you've done.

Thank you. Thank you for that advertisement.

I could go on for an hour

that might show up on our website. So I want to ask you, first question is that the breaking news on CNN this morning, was that the court was issuing opinions for the first time in three months. And there was all kinds of speculation as to the delay and why it's taken so long to issue their opinion. And I was wondering if you could just comment on the news of the day?

Well, we're often running opinion issued by Justice bear today, I am confident they'll all be out by the end of June. So I don't think anyone needs to worry. It's don't don't view that as news. It's just coincidence of which mix of cases we're in October and November. And I don't think it's there'll be out by the end of June. There'll be out and we're off and running today.

So you're saying it's been a slow news day? At least on that

topic? Yes.

Okay, well, I want to ask the questions that have been submitted by people in our audience. So Devin Humphries asks, Does your decision ah, a versus Becerra to stop it using traditional tools of statutory interpretation, return to the letter of Chevron or rejected spirit?

Great question about Chevron, of course, the case at the heart of Administrative Law scholarship and decision making over many decades now. And I think there's two ways to look at Chevron and two ways it's applied. And this is going to get into the weeds. But we're at an administrative law conference. So I think, so you're either a footnote nine, Chevron person, or you're a non footnote nine, Chevron person. And I'm a footnote nine Chevron person, which means that footnote nine in Chevron says that you apply all the traditional tools of statutory construction to try to resolve any ambiguity in the statute. And the way I've applied it for 12 years on the DC Circuit and on the Supreme Court is once you apply all the traditional tools of statutory construction, you get an answer. At least unless it's a term in the statute, like reasonable or appropriate or feasible, in which case, that's actually more of a State Farm issue to really get in the weeds, but of administrative law. And so I think American hospital and other cases, to me reflect the way I've applied the doctrine, which is use the tools of statutory construction to resolve ambiguities. And when you do that, you usually get an answer. If it's a term like reasonable or feasible or appropriate, then that's a question of, did the agency act within the authority granted to it by Congress? In other words, was it reasonable reasonably explained, and you're a little more deferential in that in that realm? So I view our job, as the Chief Justice famously said, like being an umpire, like being a referee, our job is always to think about our place in the separation of powers, but to police the line between the executive and Congress, and to make sure that Congress that the executive is not exceeding the boundaries set by Congress. I don't think we should be too aggressive or too deferential. I think we should just try to do in footnote nine of Chevron instructed us to do to use the traditional tools of statutory construction, figure out the best reading of the statute figure out then whether the executive cross that and that will you know, the key to being a good job Ah, one key is to be consistent to apply that no matter who the parties are, no matter which administration it is. And no matter what the issue is environmental issue, labor issue, immigration issue, what have you, and to try to be consistent over time. There are non footnote nine Chevron judges who I think look at statutes say, That's complicated. I'm deferring to the agency. That's a simplistic overstatement. But that's, you know, that's kind of the philosophy I think you sometimes hear associated with Chevron. But to me, that's from day one on the DC Circuit. That's never been the way I've approached it. I've I've taken footnote nine, related to that on our differences, similar document doctrine for interpretation of regulations, on a case called Kaiser a few years ago, we emphasized footnote nine from Chevron by analogy, and emphasize that you should really try to resolve the ambiguities in the regulation using the traditional tools of interpretation, as well. So I guess that means I don't think Chevron plays much of a role in a lot of cases.

Well, along those lines in an anonymous question are asked, with regard to Chevron, that the court has been reticent to cite Chevron recently, and wants to know why, if there's a reason why that is?

Well, I think we cited footnote nine I think I think the judges on the court have recognized that the first thing you do is make an effort at resolving the ambiguity. Every statute has some, at least cases we get are not going we don't get easy cases. So every case we get is going to have some confusion in the drafting mistake in the drafting ambiguity compromise in the legislation that we have to resolve, or at least interpret. And I think all the judges realize, well, we don't just throw up our hands at the start, we go through the process of trying to resolve it using the traditional tools. And some judges might stop short of where I would, but I would use all the traditional tools and try to figure out the best meaning of the statute. And I think that's why I don't think it's been really used in the way some people think it applies since before I got on the court. So

Well, speaking of ambiguity, Peter, Ella Vetco asks, In West Virginia versus EPA, the major questions doctrine was applied, without explicitly finding that the statute was ambiguous. Does the doctrine require ambiguity?

So I think the way the major questions doctrine, as I understand it has been applied. And I wrote about it on the DC Circuit. So for me, it did not start with West Virginia versus EPA. It started long before you could start it with the benzene case in the 1980s is a simple principle. And I know there's particularly in the academy a fair amount of criticism of the principle. I understand that. But I think it's a principle rooted in common sense, and one that's rooted in the Court's Case law. And it's a clear statement rule that before we allow an agency to resolve some major question, and let's bracket there's going to be debate about what qualifies as a truly major question, some massive new regulation, some critically expensive, new regulation, that Congress have clearly delegated that authority to the agency. And I think it's rooted in the a couple ideas, constitutional values and our own ideas and understanding from each of our own experience about how Congress operates. So both of those, I think, inform the major questions of doctrine. And the idea is, Congress doesn't ordinarily hide elephants and mouse holes in they've heard that phrase a lot if you've read our cases. And other words, do some massive new authorization in some ancillary provision, or some provision that's vaguely worded. And I think we've also been very leery of okaying, some massive new regulation that's based on a very old statute that was vaguely worded. When the Congress that enacted that statute couldn't possibly have been thinking about the issue or the thing that the agency has done. And we think that's rooted again, both in constitutional values and also in our understanding of how Congress operates. It's within a tradition, in my view, consistent with other plain statement and clear statement rules that the court applies that I think They coexist with textualism and are part of what I think is proper statutory interpretation. So for example, the presumption of mens rea a lot of times statutes, criminal statutes don't require any mens rea up Do we just say no mens rea is required? Of course not. We always and I'm I'm very vigilant about that, among my colleagues about the presumption of mens rea, we don't assume Congress meant to incarcerate people to allow people to can be convicted if they didn't have the requisite mental state presumption against retroactivity. We apply that very vigorously as well, in civil cases, the assumption that Congress didn't mean to make illegal what you did yesterday, when when you did it, it was legal, the presumption that's one way to describe it at least presumption against retroactivity. We will require a clear statement, presumption against extraterritorial application of statutes, again, reflecting constitutional values and our assumption of how Congress operates that we don't presume a statutes meant to apply to conduct committed abroad, unless Congress has clearly stated that. So there are a variety of well rooted clear statement rules in statutory interpretation that I think are entirely proper that Congress relies on that Congress assumes, and I've, from my experience in the White House, worked with Congress on legislation, and the philosophy of the courts will clean this up is a little too prevalent, I realized, but they do rely on the courts principles. And the backdrop and I think the major questions doctrine, the clear statement role, fits in with those other clear statement rules and reflects to my mind common sense and reflects to my mind constitutional values. And I wrote at length about that on the DC Circuit and thought the West Virginia case obviously I joined the majority opinion and I think that was correctly decided.

So I have a second year student here who is asking a question I think is trying to pick a fight with you.

Okay, so while you're not giving, he's not giving the name.

I'll freely you don't have to give. I think it's important to give the name because I think he's trying to create some tension between you and justice Gorsuch here. So his name's PJ moto.

There you go.

So So PJ asks, So in writing the descent of of denial cert in Buffington versus McDonough. Justice Gorsuch wrote the chevron doctrine should be reconsidered. Now you've in your answers to the previous questions suggested you are essentially a justice who apply Chevron and so should Chevron be considered. I mean, are is there? Is there daylight between you and justice Gorsuch? Sure.

Well, I'm not going to preview future cases on that. I think the way I described Chevron was probably different, then some people use the term Chevron. And other words, applying footnote nine means you apply the traditional tools of statutory construction. And when you when those don't resolve it, it's usually because it's a term that's more of a State Farm issue, then that Chevron issued again, get back into the weeds of that so and justice Gorsuch and I. We've known each other since we were 14 years old. We went to high school together, we clerked together. We thought it was a big coincidence were clerking together for justice Ken Kennedy. And we said, Isn't this crazy? We're both clerks here went to the same high school. And that turned out to be pretty minor coincidence compared to friends with a long time and he's a great judge. And when I was here in 2017, was a few days after he was nominated. And I do remember Professor Baird, then Professor Baird introduced me and I started by speaking about justice Gorsuch and how, how proud I was of that he was nominated. And my prediction that he would be a great justice in the tradition of a Jackson or Scalia and I continue with that prediction, even on those occasions where we disagree, although I'm not sure. Again, I'm not going to respond specifically to the future. But my description of Chevron, I'm not sure is that much different from his

okay. So since you raised it about your relationship with Justice Gorsuch isn't your education. Father, Matt Kozar, who is a third year student here asked the question about the role of Catholic education in shaping your legal perspective. both yours and and justice Gorsuch is and if you see any challenges to Catholic education today that are coming to the surface?

Well, I think on the first part of that, I think I'll tackle that you I went to Catholic school from first grade through 12th grade, important part of my life. My best friends in the world are still those people that I knew then. And that I still rely on. One of my best friends just texted me five minutes ago Are you at Notre Dame, he went to Notre Dame. And I think the values I learned they are doing for me, one of the things you think about when you are on the Supreme Court, at least that I think about is I want to be good at the job. I want to be as good as I possibly can. It's an awesome responsibility. It's a great honor. But But I think more about the responsibility and how can I be as good as that whatever my potential is, how can I reach that and be as good as I possibly can I think about the adjectives that you want people to use to describe you. I talked to students about that. And I think I go back to the foundation for my Catholic education. So my Latin teacher father burn, I don't remember a ton of Latin, I will concede so. But I do. Remember when he told us, be prepared, be prepared, you can't go wrong as you go along if you are prepared. So that's 40 years later, I got that down, Pat, I guess we were not always fully prepared. But he was an that turns out, you know, really important to being a good judge, be prepared, be well prepared, what you want the lawyers walking out of the courtroom and say be well prepared. I think about my English teacher, Chris Abel, who reading To Kill a Mockingbird, I have the version in my office that he taught us that on the inside cover my handwriting from back then is written the phrase stand in someone else's shoes. And that's what he taught us was the lesson of To Kill a Mockingbird. And I think to be a good judge, and to be a good person. It's important to understand other people's perspectives. And when you're on our court, you need to be thinking about their 330 million people in this country who have a lot of differences on a lot of big issues. And try, you're not going to please all the people all the time to state the obvious, but to try to understand their perspectives to try to make sure they realize that you're at least listening to them. And I think about that lesson I got from my Catholic education from Chris Abell, standing in someone else's shoes. I tried to reflect that in my opinions that I understand the arguments from both sides. I tried to reflect that at oral argument. I do not believe in pouncing on the attorneys at oral argument. I don't believe in being too harsh on the attorneys at oral argument. I try to avoid that I'm sure I slip and fall short. But that's that's a goal. And I think constantly about standing in someone else's shoes and trying to understand their perspective. Then last Catholic education, one of the things that my music teacher Gary DOM taught us was, be not afraid. And that's really important. To be a judge, be not afraid, be not afraid to do the right thing. Be not afraid, do it, hear your principals know that you're gonna get criticized, I worked for President Bush for five and a half years, I saw him take just a ton of abuse. And he was always optimistic and positive and a great lesson for me of being not afraid. I watch a ton of sports too. And I, my kids, both my high school daughters both play sports. And by analogy to the referee umpire, and he would you know, you're going to take a lot as a judge what just go to a game and watch all the abuse the referees take from the parents. And sometimes I think to myself, who would want to do that job. I it's just unbelievable. The things that are said in high school gyms to referees, and it is very see you got to have a thick skin. And it's very similar in that sense, you've got to be able to do the right thing to make the make the call, it's gonna sometimes draw some negative reaction from the crowd and to be and that's the same thing as a judge. So those Catholic life lessons I learned in Catholic school, I think still grounds me today when I come in the office in the morning. And more broadly, the ethos at Notre Dame reflects that I learned as well. motto, my Jesuit High School was meant for others all boys school, and I've tried throughout my life and devoted almost all my career to public service, and to serving others through my job. And also, I realized that's not just enough, I volunteer I've consistently volunteered at serving meals for the homeless with cow Catholic Charities. That's an important part of my life to have constantly trying to live up to that ethos of service. And so those I guess by that long answer, the answer is a lot of what I learned in the Catholic schools still informs not my jurisprudence. So I don't want to confuse the issue, not my jurisprudence, but just how I try to treat other people and how I can think of my role in public service.

So follow up on that. There's been criticism in the press and elsewhere that we as Catholics are over represented on the court. And I was wondering if you're a Catholic background, your Catholic education, uh, shapes your relationship with your your colleagues on the court?

Well, I think only in the sense, not jurisprudential, again, does not reflect it reflects how I've tried to deal with my colleagues. And one of the things, I think it's important for the students to know here, because you read about the court. And one of the things you adjust to when you get on the court is you just spent an enormous amount of time with these eight other people, and only with these eight other people, you eat lunch with them. And after every oral argument in conference, and you put do the math, that's about 65 lunches a year with just imagine picking eight other people at random. So we're gonna have lunch not once, 65 times this year, that's a lot of lunch. And you can't, and you can't talk about work at lunch. So you talk about the things that you would talk about with your friends, you talk about your kids, you talk about movies, you talk about books, you talk about war stories, again, and again, you talk. You know, when Justice Breyer comes, you talk about things you don't know anything about? Meaning I don't know anything about he knows a lot about a lot of things. And you become through those lunches, friends, and we have my experience with the court and my four and a half years. And at this moment, is there great relations among all nine justices, both personally and professionally? We will I think, we disagree, we get tough, we only get tough cases. And we disagree on some of those. I think that's more nuanced than sometimes is portrayed No, get into that. But but we work well together. And we get along well together. So we have those lunches conference, you know, once a week, two and a half, three hours, just the nine of us in a room oral argument. So it's not like the Court of Appeals where you sit in panels, or three, and you might be sitting with different judges, and might not sit with a particular judge for six months. It's every oral argument, the same folks, and you get to know each other really well and to respect your colleagues and to understand them and to know, and my goal is to, you know, treat them with respect. And as friends and when they disagree to understand, like I said, stand in their shoes, why to why do we disagree on this, and know that there's some things you're just going to disagree on are not going to be able to find common ground, but you move on to the next case. But maintain your great respect for for your colleague who has a different view on a different case. When I got there, Ruth Ginsburg and Steve Breyer were on the court and were amazing colleagues and welcoming me she walked into that place, at least for me, and I think for almost all of us, all of us, probably you walk in and you're want to try to fit in, and you want to make sure you're doing things the right way and make sure that your colleagues think you're doing things the right way. And Ruth Ginsburg and Steve Breyer couldn't have been better at welcoming me to the court. Justice Ginsburg, publicly would talk about me a lot during my first term. She didn't have to do that. And she did it. I'll never forget that it was very meaningful to me what she said, I remember about six weeks into the job that happened to be a five four case where she was the senior justice in the majority and I was with with her on the majority, the Apple versus pepper case, and she pulled me aside after conference and said, I want you to write the majority opinion. And welcome to the NFL. And I remember as I did that first year, I immediately got back to the office and called Justice Kagan who was my etiquette advice it should have but did I say the right thing? I said yes. She's like, Yeah, you said the right thing. And then I said, well, then she added just get it out quickly. Ruth like speed. And we did sell but that was a great, great honor. A great moment for me and the things she said publicly Steve and Steve, prior system, amazing colleague, as well, always trying to reach consensus, always positive, always optimistic, always friendly, always trying to reach out from his Senate experience to to understand each other's perspectives and a great role model for me. We miss him. But we have two great new colleagues Amy Barrett, of course not so new anymore, who I was friends with before, and is an amazing person. I describe her at the Welcome Dinner. The newest justice gets a welcome to hear from the previous newest justice. So Ashley, and I feel welcome dinner for justice Barrett and all the colleagues and spouses and I gave the toast and one of the things I said about her was that she was an unusually good person. And I think that sums up a lot about her. She's just an excellent colleague at oral argument, her opinions, her thoughtfulness, her dedication, how well pre prepared she is and now we have cantante Jackson, who was Oh, my thing about be prepared. She is fully prepared, thoroughly prepared. The number one thing that I mentioned that I think makes a good judge, and she's off to a great start. And I've known her for a while, not as well as I knew, just despaired, but known her for a while, too. And she's thoroughly prepared and hit the ground running. And it's great to have new colleagues we miss Justice Ginsburg, of course, and Justice Breyer, but it's, there's turnover. And it's wonderful to have two new colleagues who have fit in, in my judgment fit in well with the group.

Well, speaking of your colleagues, Josh Lacoste asks, whether when you're writing a judicial opinions, who are you're considering as your relevant audiences? Is it your colleagues is are the lower courts, legal academy, the public at large? Who who are you focused on when you're writing in pain,

all the above? So let me take it in order when you're writing an opinion, first of all, may be consistent with something I just said, I went the losing party, this can be hard, but I want the losing party to understand why we disagreed, why I disagreed with them. And they're going to not be happy with the decision, by definition, but I want them to read it and say, Okay, well, they at least treated our arguments with respect and fairly. So that's number one, I think over time, that systemically if you treat that party Well, or argument, and that party Well, in the opinion over time, that builds respect, I think for the what we're doing for the rule of law. So that's one, two, the lower courts are going to have to apply this I was a DC circuit judge for 12 years. I remember saying, what does this footnote mean? What are the what what are they doing? I try. So I try to avoid writing footnotes or text in my opinions that is going to cause the lower courts to be confused. To not understand now nine people have to come together at least five. And so there's going to be compromises. Sometimes there'll be maybe deliberate fuzziness and opinions but I try to bring clarity, the opinions for the lower courts. Clarity is an important value in opinions also, for the affected parties, the businesses, the agencies, the government parties that have to order their businesses, their affairs, their regulations around what we say to Congress so that they understand whether it's canons of statutory construction, or what have you, to the American public who is interested in reading it, I want it to be understandable and clear. And as clear as I can make it for people who are going to want to know what we're doing and why we're doing it. And so it's a lot of different audiences, writing an opinion like that. It's hard work. And writing generally, it's hard for the students here. I like to say there's no good writers, they're only good rewriters, you got to rewrite and rewrite and rewrite and think about all the holes in it. And it's I was with Justice Scalia on a panel one time, actually in Germany, and the European judges were fawning as they should have been over Justice Scalia and saying, Oh, you're a wonderful writer, Justice Scalia. You must love writing and it his typical way. He looked at him said, I hate writing. When writing is hard. It hurts. It's agony. It's painful, physically painful. And I thought to myself that Justice Scalia Oh, thank God there is, you know, he's one of the greatest writers who ever served on the Supreme Court. And for him to say that I thought that underscores that it's it's hard work to try to write an opinion with clarity that people are going to respect but you keep at it, and keep at it and keep at it. But I have a lot. I don't have just one audience in mind. I know. People sometimes say you're writing for x, I think you're writing for, you know, ABC, the lot of different audiences and you have to keep them all in mind. I think when you're writing the opinion, I will I try to I try to do that in my opinions as best I can. I also try to avoid. Justice Kennedy is a role model for me in so many ways. I clerked for him. And he's a role model on how he conducted himself on as a justice, and how he wrote his opinions. And if you ask yourself, What's the harshest thing Justice Kennedy wrote an opinion in his 30 years? That's a very short conversation, because there really is not any. And I am sure I fall short of this. But my goal is to try to be like that and show respect for the the other judges and the other parties. And I try to do the best I can on that, again, sure I fall short, but try to constantly live up to that standard that Justice Kennedy said at the same time, appealing to or trying to think about the audience's that I mentioned to you.

So I've got several questions from anonymous questioners. The thing they have in common is that they are all administrative log Questions.

So I'm just gonna speak in my language. Yeah, so I'm gonna

go. So the first one is that do you think the arbitrary and capricious doctrine has changed since states say farm? Or do you think it's applied consistently in the same way?

I think it's usually applied pretty consistently. I've had a formulation that I used on the DC Circuit and have now used and Supreme Court opinions, that agency action under the State Farm standard must be reasonable and reasonably explained. And I think that formulation captures what we're looking for in agency action. I've also emphasized as as the court that that should be applied differentially. In the context of State Farm, we're just looking at the policy determinations within the law within the delegation granted by Congress to make sure the policy determination, the choice made by the agency is reasonable and reasonably explained. And within that realm, I have a strict divide between law and policy. Footnote nine, Chevron, I mentioned where I come down on law on policy, I think we need to be quite deferential. And I think the court generally is I did disagree. In the DACA repeal case on I thought that agency had given a sufficiently reasonable and thorough explanation there was a dispute about whether you consider both agency explanations or only the earlier one, it's probably too in the weeds even for this. But anyway, as a general matter, I think it is consistently applied with deference to the agency, just to make sure they haven't done something completely off the rails and have to make sure they've explained something sufficiently. A really common don't say tactic, but common result on the DC circuit for the years I was there as if you thought there was some question about it just remanded the agency for for additional explanation, which led to a whole debate about remand with or without vacatur, which I know, is also a subject of some, some debate. But in any event, deferentially applied, reasonable and reasonably explained. And I think it's pretty consistently applied. But I think it is risky, because I think it's easy to say, I don't like the policy, and therefore I think it's unreasonable. And you got to be careful, you got to guard against that as a judge if you're being an honest, consistent, fair judge. And I think one of the ways you test yourself on this, and I tried to do this all the time is when you get it, especially with the majors case, when I get any kind of case, say, What if all the parties were flipped here, where I'd be doing the exact same thing? And you got to be able to answer that question. Yes, you got to be able to look yourself in the mirror and say, Yes, I would be doing the exact same thing, if everyone was, was flipped in this situation. And that's the test. And your you got to look inside yourself and make sure that is, again, like the umpire when people are yelling at refs and basketball games, my experience, one of the most common things that as yelled as you didn't call it that way down there, be consistent. And so as a judge, you need to be consistent, as well. And make sure you're doing that it's there's a little bit of a risk because of the fuzziness of StateFarm. That in sometimes I disagreed on the DC Circuit, but I think everyone was well motivated, but that's the risk in it. And our core, I think it's pretty good.

So since you're using sports analogies, next question is, do you think your concurrence in NCAA versus Alston could cover fields and bodies beyond college football, for example, like law journals, or the Notre Dame Law Review?

Definitely, you know, and I can I can't even understand the question. I will say, NCAA versus Alston. If you asked me, you know, you've been on the court four years. What's your favorite opinion? The opinion you think, you know, you'd like the most it's it would be no surprise that NCAA versus Alston, my concurrence, and that would be right at the top of my list, probably also with Flowers versus Mississippi majority opinion. Ramos versus Louisiana concurrences are the ones that I look back on so far, and say, you know, I think I think I made a contribution with those cases. And I think I did a reasonably decent job. In those cases, the concurrence and NCAA versus Alston. I thought it was important to say because I was concerned, it's probably be a question, but why do you write concurrences? I always ask myself the same question. Is this really worth it? And I've come on, I've got a good book of unpublished opinions sitting out there that I've never thought--that I've thrown away as not being worth it. That one I thought it was worth it because I thought there was a risk that you could read the majority opinion and think, "Well, everything else is hunky dory." And I did not think that, in terms of the restrictions on student athletes, and I thought that needed to be said, and I thought it needed to be said clearly and directly and succinctly and I spent a lot, it's five pages, but put a lot of time into the into exactly how to phrase the things they are. And I just thought, you know, when a group of organizations is coming together and making a lot of money and agreeing to suppress the money that goes to the people, who are the actual athletes generating all the money, many of whom are from low income families, many of whom are African American, that there's something really quite wrong with that picture, both legally and otherwise. And I thought it was important to say that in in the NCAA case.

so I'm going to interpret that answer as saying that the law of your editors should not be coming to me for a name image, and like,

there's a huge market out there for Law Review name image. It's right up there with a judge name. And

so another question is that a lot of your fellow justices work for the federal government in the executive branch? And does that shape the way that or inform your jurisprudence in in cases like the the EPA case?

Right, so two things on that, first, I think we have a pretty good diversity of professional experiences currently represented on the court, public defender, prosecutors, people worked in the different branches of the government, people have had backgrounds as trial judges, as appellate judges. So I think it's never perfect. You never can cover everything in terms of professional experiences. But I think we have a pretty good range of experiences represented among the nine of us right now. And and, and geographically diverse as well, in terms of where this wasn't the case even a few years ago. But in terms of where people come from, and Justice Jackson from Miami, Justice Barrett, Louisiana, the chief from Indiana justice courses, Colorado, I don't help the cause on that, but I'm from DC. But anyway. But that's good, too. Because I think a lot of where you grew up through AJT, and informs a lot of kind of who you are, and your understanding of different parts of the country, which I think is important, again, when we're thinking about 330 million Americans. So then, for me, my White House experience for five and a half years is really quite central to my thinking about a lot of topics. And I worked for two and a half years in the Counsel's Office and three years of staff secretary. For those who don't know what that position is, you're the clearinghouse for the paper that goes to the President, the draft speeches, the policy memos, and you farm them out to make sure the President's getting a good product that represents consensus views. And if there's disagreement that those disagreements are flagged, so no one can kind of get their own paper into the president, without going through you. It's very important role to make sure that it's kind of refereeing. And it was good preparation for being a judge to referee disputes among policy advisors to the president, including Secretary of Defense CIA, in some, some heavy hitters, to put it mildly. And that was, that was an important job. But But, and one, I've learned so much from President Bush personally, but also traveling the world with him. And you know, whether in Afghanistan or Russia, or China, or Buckingham Palace, or the Vatican, and to see the world and to see the country with him and to see the demands that are placed on the president. So I think being a judge justice on our court is a difficult position. But and I think being a member of Congress is a difficult position. I think those things pale in comparison to the difficulty of being president no matter who's president. And I saw that firsthand for three years with President Bush, the enormous responsibility that you have it starts every morning with the national security briefing and ends every night with thinking about least at that time, but still potential terrorist attacks on the country and knowing that if something bad happens, it's going to be all on one person's shoulders. And he came into the Oval Office on September 12 2001. And essentially said this will not happen again. And everything he did for the next seven years, seven half years, in my judgment was motivated, well motivated by this will not happen again, including some controversial decisions for which he took a lot of criticism, but I think it was all motivated by he understand the central importance of the presidency and his role in doing that, and I think I learned a lot about the presidency, which informs I think, my understanding of national security policy Congress has an important role. I'm not saying that. But the President's role in what the nature of the presidency and the decisions the President has to make. I all So saw separately how the agency process works. And so this may inform a little bit of my understanding of administrative law. But when you run for president, you're in the snow in Iowa or New Hampshire, you're not going out there and saying, I'm running for president, so I can get in there and follow that statute. Exactly. Yeah. You're like, I'm gonna go reform, immigration law and health care, law, environmental policy. And I'm going to, I'm going to go in there and do XY and Z on that. And then you get into office. And it's hard to get things through Congress. And then there's a lot of pressure put on the agencies to try to do as much as they can to achieve the President's goals. This is a completely bipartisan phenomenon that I'm describing. And you tried to do what you can within the existing statutory authority, and it's a lot of pressure on the agencies to push the envelope? Well, that's where I think the courts come in and saying, wait a second, as a matter of separation of powers that's beyond the existing authority you have, you have to go back to Congress to get additional authority for that. But I think what I saw in that process, convinced me that it's important that the courts police that because the executive branch, all the incentives in the executive branch, are to push beyond existing authority, do what they can to solve the environmental problem or to help better securities regulation or better labor regulation or immigration, as we've seen over and over, where presidents have trouble getting legislation passed and want to push forward on legislation. So both an understanding the presidency, the demands out of the national security demands, and then understanding the agency process. I learned so much. In those five and a half years, I think, you listen to oral arguments, even recent oral arguments, you can tell that I'm that that's not far from my mind. And then I'll add one last thing, just going around with President Bush for three years, I got to know them extremely well, personally. And like Justice Kennedy, just President Bush is a tremendous role model for me, and how he conducted himself how he treated other people. Even when he was criticized, he was always optimistic I keep painting above my desk, and my former clerks got gave to me when I was confirmed to this court. That's a painting that's a replica of a painting President Bush had in the Oval Office all eight years, it's called Sunrise side of the mountain. And it has the quote, underneath it live on the east side of the mountains, the time that is the side to see the day that is coming, not the day that it's gone. And President Bush is always talking about living on the sunrise side of the mountain and staying optimistic. Despite all the criticism that comes on the presidency, despite all the demands, he was always generous to other people, always great to his staff. And I try to live up to that. And you know, we get a lot of criticism, we get a lot of heat as judges, and I constantly think about being optimistic, more optimistic about the court. I'm optimistic about the country. I'm optimistic. Well, my colleagues, I, I remember those lessons from President Bush, I think those are really helpful to me on a daily basis to kind of think through, okay, don't worry about today's criticism, because just stay optimistic about the future. So I credit him for helping reinforce that in May.

Well, in keeping on this theme of how you treat other people, second year student crease a Cox s question about how the court has come under criticism for losing a spirit of compromise? Can you comment on the extent to how you can engage in conciliation with each other? Or when you're in the process of assembling an opinion?

Sure. I think there's a lot of collegiality and talk among all of us. And I'm gonna give you a few examples. Obviously, on some cases, you just end up with disagreement. And you talk about it, but you end up with disagreement. And the end of the day, some some cases don't lend themselves to that. And there's some big cases, of course, that that fall into that category. And there's some small cases as well, smaller cases that fall into that category. But in a lot of cases, we are able to either forge consensus, Justice Breyer, I mentioned earlier was a master at that. But also cases that I think don't fall, what might be perceived by some students or others as the typical pattern just to think about last term, which was obviously a term with some tough cases, and people pay a lot of attention to them as understand and completely respect that we had a lot of cases that did not follow the usual pattern that were big cases. So Chief Justice Roberts wrote immigration opinion on the return to Mexico policy that rolled for the Biden administration. That was a 5463 case, depending on how you think about and as part of the majority with Chief Justice Roberts and Justice Kagan Justice Breyer, Justice Sotomayor on that. He wrote the the Ramirez case, as well, that was a case about chaplains in the execution room which we have been kind of struggling with for a few years. And he wrote a case about the right of someone on death row to have a chaplain in the execution room, not not necessarily what you expect. Justice Breyer wrote an important five four decision on state sovereign immunity as part of the majority with Chief Justice Roberts in that case. Justice Sotomayor wrote two really important five, four decisions last year. One was a First Amendment case about Austin sign ordinance. I was in the majority with her and Chief Justice Roberts and Justice Kagan and Justice Breyer and that one, and then another was about the first step back criminal proceedings and under the first step back, and I was in dissent in that one, but she was in the majority with Justice Thomas, Justice Gorsuch, Justice Kagan and Justice Breyer, really important case. If you run into Justice Sotomayor, still, she'll talk to you about that case. That's an important case. And that's not following some kind of usual usual perceive lineup, Justice Kagan wrote an important five, four on the method of the statutory route for a challenging method of execution claims, which has been an important issue in the court for decades now. And that was a five, four decision. Obviously, the majority in that one, just a lot of cases that were important, I realized, so don't get attention. I'm not complaining about that at all. Totally understand, but just so students get a more nuanced understanding that the docket is is larger than you might suspect. And when you get into that docket, you see, I think, methodological consistency by us, but with results that you might think, hmm, I didn't expect that result. That's been true my whole four years, whether it's, you know, cases, the DACA case, or the Ramos case where we overruled precedent and said, non unanimous juries are no longer permissible. The Bostock case was Justice Gorsuch wrote, there been a lot of cases over my four years that might not fit some kind of perception, again, just so you have a broader picture for some of the students here, I think it's important to think about those cases as well. And those underscore in all those cases, we're all working together with different groups of people on the majority. And so I might be working with Justice Sotomayor on one case, and we might be in disagreement on the other, but we're working together on the one and that we're not going to let the relationship on the one suffer because we might disagree on the other. And I think all nine of us do that. And it's very friendly at conference. And, you know, people disagree on issues they care about, but it's just my perspective, I think the relationships are quite good. And they result in cases that don't get a lot of attention, but that are really important where the lineups are not necessarily what you might think.

So speaking of your relationships with the people that you work with a student Tara Sita Rios, notes that you worked in the White House with our professor, Bill Kelly, and she wants to know if you have any dirt on him?

No, of course not. I work with Phil, I work with Bill Kelly and three separate jobs when the Solicitor General's Office and the independent counsel's office and the White House. And I said when I was here in 2014, he introduced me in 2014. For this for this speech, and I said, there's no finer man than Bill Kelly. And that is, that is true, as he would say, true story. And I've benefited from his friendship and advice in difficult times that I've had, he has been a great source of advice and reassurance. And in good times, he's been a great source of keeping me on a level playing. And he's just a great friend, a great scholar. I'm teaching with him in a few weeks, for a few days, a course and you know, I think he represents Notre Dame Law School. So well, this is as I said, at the beginning of fantastic law school and I think of Bill Kelley as someone who has helped form the foundation of all the success that you're leading now this law school so great friend can't say enough good things about him got nothing, got nothing for you.

So this would not be a law review symposium if Lars you and these are all asked anonymously. But there are several questions that are similar. And you can tell they come from what are a few members? What do you look for in law clerk

so the law clerk relationship is really special. And you have for each year and you spent so much time with them. So you spend a lot of time with your eight colleagues and then a lot of time with your four law clerks and you spend more time with both those groups than your family. Oftentimes, because you're at work all day long. So it's really important to have, like I already described the colleagues but with the law clerks as well. So I think kind of obvious things. And then non obvious things, the obvious things are building to write well, to edit well, to research well, to analyze Well, all of which you get recommendations from law professors, how they did in law school recommendations from judges, they might have clerked, for on the courts of appeals or state supreme courts or where have you, because there's a lot of work to do. And you want, they can spend by definition for much times as much time on every case than you can. And so you need them sometimes to help do research to help find things. little plug for law reviews, while we're at it, since it was a lot of your question, which is one of the things I'm constantly asking my law clerk says there's got to be some good law review articles on this. And I use law review articles. I'm not one of the members of the court who will is dismissive of law reviews, I they're always required in the binders that they prepare with all the background material for me. So anyway, good researchers will plug for the law review. And then in especially in our court, the law clerks need to work with all eight other chambers, I'm insistent on that you've got it, you can't be like, Oh, I'm not, you know, my views are I can't deal with now you've got to be able to deal with all 32 Other clerks and deal with them well, and deal with them fairly, and deal with them respectfully. And so I'm looking for people who get along well with other people. And that's, that's essential, essential for me and people who are going to deal well with the other three co clerks in the chambers and with me, as well. And know that when I tell them in the interview, we go through a lot of drafts, understating it, we just may always get there and like you call another draft. Yes, another draft, I told you in the interview, it's gonna be a lot of drafts. So the writing process is really intensive, and someone who can participate in that with the kind of optimistic spirit that in good nature that I want. It's really important, though, that the one thing that might not be obvious is the getting along well, with other champions, you have to represent me. And I am insistent that that be a person who's not going to cause problems in the court. And one of my colleagues said to me, when I got there, you know, if any one of us hires a bad apple kind of infects the whole place. And so it's important to try to try to avoid doing that the recommendations from professors and judges, your grades are important, that kind of basics, but that intangible I did have, I realized by saying this is going to happen all the time now, but I'll say it anyway, a clerk who came in to me two years ago, three years ago for the interview, and she concluded the interview by saying, I just want you to know, like, I got a lot of grit. And whatever the that's all I call her now. It's grit. It works, whatever might have been gimmicky, but it worked. I hired her. She was an awesome clerk. She was with me last year, which was a very obviously difficult year, at the core, and she was awesome. So I now realize every interview is going to end with I got a lot of grit. But that was a good thing. That's I like that, you know, in life. And, you know, someone who's willing, really should stick to itiveness, you know, and she was, she was fantastic.

So one thing you commented on earlier was the fact that we have balance on the faculty here at Notre Dame, do you look for the same kind of thing in your, in your chambers as far as law clerks? Or are you looking people who reflect the kinds of judgments you make about law and policy?

Yes. I've had clerks of a pretty broad range, especially if you go back to the DC Circuit a little less so on the Supreme Court, it's got to be people who are comfortable with my general approach. And at this point, I've got 16 years of cases, and that think you can tell where I'm coming from on a lot of things. And so there's some self selection in that, I suppose, but also people who are not going to be having concerns. Obviously, they'll disagree. I don't want it's not helpful to hire for clerks who just say yes, yes, yes. Yes. Your ideas. Great. That's not so helpful for me, so they get differing views is helpful for me. But it's got to be someone within the umbrella of comfortable with my general approach to constitutional statutory decision making, so there's probably a little it's probably not quite as wide an umbrella as it was on the dc dc circuit. But I've definitely had clerks who disagree with me including and disagree with me on big thing thinks and that's good. I mean, that's not that's, that's going to happen as long again that that essential personality requirement respectfully, they're going to be, you know, okay about it and deal well with me and deal well with others in the chambers without it when that happens. So it's a little bit of a muddled answer, I suppose on that one. But it's pretty, pretty broad range.

So another question from an anonymous questioner is on a really sensitive, perhaps hot button topic, but also relates to the hiring law clerks. And that's the I want to get your opinion on what's happening with the US News and World Report rankings.

What's Notre Dame said about the you know, my audience what has Notre Dame,

we haven't said anything? Because we're focused on our Catholic mission and doing what we do. And we will let the chips fall where they may.

All right, well, I'll just wing and say what I think here, which I've done with my other answers, but on this one, I was potentially going to pull my punches, but I'll say, I think those ratings are very problematic. I think they're based on things from what I understand that are very amorphous, very subjective, very word of mouth factors that don't correlate well with the education that you're actually receiving. And I find them highly problematic the reputation score, that's kind of a joke, isn't it? I mean, that's who, who, who has the knowledge of all the different scores? That's a judge to give anything approaching? A good analysis of that, and some of the, as I understand it, I should probably stop, but I'm gonna say it anyway. They look at how much money is spent on this versus that and library, you know, is that really show whether a student's getting a better education at school a or score School B. And I think I think they're very problematic. And they cause as I understand it, again, I'm a judge. I don't know everything, like you all might know, on this, but it seems to cause all sorts of perverse incentives to kick in at law schools. Transfer Policy seems to be affected dramatically at some schools I'm familiar with, by trying not to hurt their US News ranking and you got anything else? I mean, I'm down on them. I just don't think they accurately reflect what you think about what are you trying to accomplish in a law school is take a group of people and try to get them like I was talking about me as a judge, I want to get as close as I can. And whatever my potential is, wherever that is, we would take a group of people and try to get them as lawyers as close as they can be to whatever their potential is in three years. And that's very hard US News is not measuring that. And that's really an analysis of the kind of professors you have, how much time they put in with the individual students. How much mentorship goes on how much writing they're teaching you? What kind of extracurriculars like the symposium in law review or going on. And I just don't think that's measured. As I understand again, I could be wrong, gonna get a letter from us news, but I could be wrong. I just don't think that's measured. You know, it's like, if you measured a good coach, by you know, how much money he spends on shoes, like, Well, no, that's not really relevant. Does the coach get the team to play together and get the team to achieve its potential and bring out the best in each player. And that's what I'm thinking law schools should be doing and I think Notre Dame is doing and I don't think the rankings quite capture that and I think they just have gone on too long. Okay. Now a

follow up to that question was whether you take them into account when you're looking at law clerks.

Now.

That's a good answer.

So several questions transition because I haven't mentioned it yet. I've had to in my four years on the Supreme Court, I've had two spectacular Notre Dame law clerks Lexy Baltus, who was with me last year, and Audrey Beck, who was there with me in my second year and who has actually worked on the symposium when I was here, I guess, in 2017. So I first got to know her, then and Lexi. And Lexi was there last year, which obviously, again, was was a challenging year in terms of our caseload, and she was just both of them were just fantastic representatives of Notre Dame Law School, great law clerks, great friends just worked both of them the one thing that I'd say about both of them, they just worked so hard. Lexi, last year, I had to tell her you better take several months off when you walk out the door here and just go wander around the world and I think she did that. because she she gave it her all. And I thought that both of them reflected very well on Notre Dame Law School in terms of what they knew law wise and how they approached the job and also, and also their their work ethics, as well.

So I think there's a cue for me to wrap it up here, but several questions that have come in several of them pick up on your affection for sports. And so I've got a couple sports questions for you. So they want to know all that. They want to know what after Adlon that's kind of sweet. They want to know what your opinion is on expansion of the college football playoffs, as well as what your thoughts are with regard to Notre Dame joining the conference.

I'm not getting near the latter. Whatever Father John and the administration decides I'm sure wise decision

so that's usually my

but it will be complicated. I know college sports is got a lot of pressure on it. And a lot of changes are coming but I'm not gonna I don't think I don't think I want to get into that on the college football playoff. I'm not going to say what I want but I think it's inevitable that it's going to expand because I think the bowl games right now a lot of the good players for the teams are not playing in the bowl games because they want to preserve themselves for the NFL Draft. And that makes the bowl games that's going to put a lot of pressure on the bowl games because the viewership will go down the money will go down and just guessing here but I think that plus the excitement of the NCAA basketball tournament to the extent you can kind of translate that into football the problem obviously in football is you don't want it the kids playing too many weeks because the injury ratio is so much higher in football and so you want to be careful about over scheduling them but I think the excitement that the NCAA basketball tournament men's and women's has had for so many years. If you could bottle that and bring it to football that would probably be something good for football good for the college's bring more schools into the into the process. I don't think it's great to just have for every year necessarily but probably getting outside my lane. There. Well, I will say on NCAA. Yeah, going to the Notre Dame game. Yesterday was also my thing. My girl my girls both play sports, their junior and freshman in high school. My older one plays varsity basketball at Georgetown visitation. The younger ones now playing ice hockey, they both played lacrosse on sidelines or on the side of court all bought. And so one thing I'll say going to the women's game here at Notre Dame yesterday, my daughters and I have had a tradition for many years, we go to the women's Final Four basketball tournament. And we were there when Notre Dame beat UConn a week a gumball while I hit that that shot we were right there and just great memories with my daughters of going to those games and watching the development of particularly women's college basketball over the last few years has been extraordinary, I think. And that's Scott. I mean, I think that's just on our wheel upward trajectory and watching Notre Dame yesterday, the crowd was awesome. And Eli V is a great new coach here and prayer for Dara Mabrey, who had a bad knee injury yesterday. That was tough to watch. Bear. I've seen that ACL before on the sidelines on the court. And that did not look good yesterday. I hope it's not the worst. But in any event, she's she's an awesome player and a great, great person to watch the whole team's great to watch. But anyway, the sports, you learn a lot of lessons from playing sports, I learned so much from playing sports. And I now from the bond I have with my daughter's over sports. It's just been fantastic. The trips we've taken the games we've watched, been on the sidelines at all their games, and one good thing about being an appellate judge is usually you don't have oral argument at four in the afternoon or five or seven at night. And so I can make I'm gonna make a list of the games. Yeah, I that that's I talked to the law review staff earlier and they asked me about work life balance. One things I said is you just block out the time. So on my schedule, game is that time is not I don't violate that time I make it to the games. And it's really, really fun and great to watch. And so sports is a great part of this. This institutions. Well on the lessons you learn about teamwork I talked about the Supreme Court has been my approach to that being part of a team of nine. And I've tried to underscore today with some of my comments. I think, obviously we have difficult cases. We disagree passionately on some but I I personally think that I try to participate in thinking about a team of nine. I think my colleagues do the same. It's great honor to be part of it.

Well, I don't know if there's a parallel to the college football playoffs bringing excitement to college football. But speaking as a finance person, you brought tremendous excitement to administrative law for me for you being here and I want to just

say right name image like

I want to thank you