We Need To Talk About Jurisdiction Stripping

0:00Strict 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 Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. Twenty-eight 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.

0:34And we all know what the Fifth Circuit did. Obviously, they let Texas get away with all of this. They're going to go up, but we're going to fight to get them taken down. 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.

1:15Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit au.org slash 10C to learn more about this case and how you can help join the fight to protect 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. Ready for your next adventure? Etihad's Global Sail is here. Witness Nairobi's living traditions. Set sail on Phuket's pristine waters. Or let wonder be your guide in Kuala Lumpur. Book by Thursday and take off to over 50 destinations on sale.

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3:03So if you haven't tried Kewpie yet, find the bottle with the red cap and see what everyone's talking about. You'll understand. Kewpie, the original Japanese mayonnaise. Mr. Chief Justice, may it please report. It's an old joke, but when I argue, a man argues against two beautiful ladies like this, they're going to have the last word. 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.

3:57Hi, 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. Thank you. The other guest today is Lina Khan.

4:34Lina 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. Thanks for having me. 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 we'll 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.

5:23Ready, Lev and Lena? Great. Yes. Okay. So let's start with some of the more general questions. The first, and Lev, I'll call on you for this one first, is what is one of your least favorite things about the Supreme Court? I think, you know, the hagiography of the justice, 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.

6:10You know, Justice Kennedy got us X, Justice Ginsburg got us why Justice Roberts saved Z. And this is sort of inconsistent with rule of law ideas. 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. 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. 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.

6:49And they certainly are wearing T-shirts with their faces on them. Indeed. Lena, how about you? What's one of your least favorite things about SCOTUS?

6:57Lina Khan: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 1 in our Constitution. Federal courts are all the way back at Article 3. 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.

7:39Lina Khan:I think this is part of a broader pathology 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. Yeah, that is reminding me of Pam Carlin's Harvard Law Review forward from a few years ago, Democracy and Disdain, where, you know, she very much talks about that.

8:24And on that Article 1, it's first, I remember vaguely from CELA Law v. 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, Lena, 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 of the lower federal courts leads to some dysfunction and so why docket reform of the lower federal courts might be important?

9:07Lina Khan:So my entryway into this whole conversation is through my time in federal government, where most recently 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.

9:45Lina Khan:This is a moment where there's a lot of conversation around reforming government. How do we make sure government is actually 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.

10:34Just as we should all know less about Supreme Court justices and Brett Kavanaugh, we should also not even know who someone like Matthew Kazmierik 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?

11:14Yeah. 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.

11:51And it reduces the quality of decision making just, you know, for obvious reasons. 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.

12:40Andrew 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. There 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.

13:23And 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 reasoned decisions, more thoughtful decisions from a group of judges who are selected for their expertise in this area. 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?

14:01Yes. 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 VALIC is an incredibly important 1990s decision. 9-0 Ruth Bader Ginsburg opinion. Decision is completely wrong. Just, you know, just mistakes. The stakes. And what did it decide? The stakes 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, which was about pollution, air pollution. And the Supreme Court stepped in to halt a Biden administration initiative on air pollution.

14:50And 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. 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. 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.

15:36And 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. 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?

16:12But 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 clean power plan, you know, et cetera, et cetera. Um, 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.

16:49Could you talk a little bit about what the existing rules are that they could or did attempt to make use of that might be right 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?

17:08Lina Khan: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.

17:48Lina Khan:They were sued by the Chamber of Commerce 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 up blessing the ability of the chamber to sue in Fort Worth despite not having.

18:34Raise 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.

18:43Lina Khan:Sorry. 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 know, represented by associations trying to claim associational standing, where the rules just end up applying in a very different way.

19:34Lina Khan: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 would basically cite to anonymous affidavits by firms that were not identifying themselves and were basically saying that they risked future harm in a fairly speculative way.

20:20Lina Khan:And in these instances, as well as in instances where CFP 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. 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.

21:05Lina Khan: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. 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.

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