Dear Colleagues:

I guess it finally happened.

For fifty years, transforming the Supreme Court to reduce or reverse “activist” or “liberal” decisions has been a major goal of Republican politicians and conservative activists – in spite of the fact that for all that time the majority of Justices have been Republican appointees and only four Democratic appointments have occurred since 1969.

For many years the “Friday Lunch” has had an early-Fall-term discussion of the Court, summarizing what happened in the previous term and projecting what might happen in the term that would begin the First Monday in October. Each year one question has been whether the conservative revolution so passionately pursued and feared would finally occur. Each year it did not. Even President Trump’s appointment of Brett Kavanaugh to replace the less reliably conservative (but still conservative) Anthony Kennedy did not seem to eliminate the balance in which one relatively or situationally moderate conservative, usually Chief Justice Roberts, could still side with the four Democratic appointees, making decisions unpredictable.

But President Trump and Senator McConnell’s success in replacing Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett just before the 2020 election seemed to create a conservative supermajority that could finally achieve conservative activists’ goals. The October, 2020 term nevertheless was not dramatic. But the October 2021 term was. As the Washington Post summarized,

“The Supreme Court’s decision to overturn Roe v. Wade and eliminate the nationwide right to abortion dominated one of the court’s most consequential terms. The emboldened 6-3 conservative majority, with three nominees of President Donald Trump, wasted little time expanding the rights of gun owners to carry guns in public, strengthening the role of religion in public life and sharply curtailing the Biden administration’s power to combat climate change.”

A further stake was the fundamental distribution of power and responsibility within the federal government – the legal underpinnings of the “administrative state.” In particular, the Court furthered a movement away from deferring to agency interpretations of law and asserting that “major questions” must be settled by Congress, even if Congress has rather clearly chosen to write ambiguous laws.

How significant, then, was the Court’s shift to the right – and what is likely to happen next? A Heritage Foundation commentary has noted that, “it will be tough – if not impossible – for the Supreme Court to top the 2021-22 term when it comes to both drama and results that pleased the conservative legal community (not to mention conservatives in general).” But we know that the new term that begins next Monday will include what look to be significant cases on redistricting, college admissions, environmental regulation, entitlement to benefits under Medicaid and related programs (I signed an amicus brief on that one), federalism and, perhaps most fundamentally, the ability of state courts to apply state constitutions to state election laws.

So is there really a conservative revolution in jurisprudence, and how far is it likely to go? What are the limits as revealed by individual Justice’s positions last term? It is a great pleasure to welcome back Professors Adler and Entin for their annual “Review and Preview.” Please join them for their wise and somewhat different perspectives on the law and the Court, what has happened and what might happen next.

In-Person and Virtual Attendance

The discussion begins at 12:30 p.m., but the Dampeer Room should be open no later than Noon. We try to have beverages and refreshments set up soon after that. Participants should be able to sign on to Zoom also by Noon. But please remember not much will be happening online until the talk begins at 12:30.

Zoom participants will probably have trouble hearing comments made by members of the audience in the room. As moderator I will repeat and summarize such comments or questions. Zoom participants are also encouraged to submit questions through Zoom’s chat function. The chat will be monitored.

Each week we will send out this newsletter with information about the topic. It will also include a link to register (for free) for the discussion. When you register, you will automatically receive from the Zoom system the link to join the meeting. If you do not get the newsletter, you should also be able to get the information each Monday by checking http://fridaylunch.case.edu/. Then if you choose you can use the contact form on that website to request the registration link.

This week’s Zoom link for registration is:

https://cwru.zoom.us/meeting/register/tJctdeitrz8iHtRPO-wJ_sHBiInc3KuO4HOy

After registering, you will receive a confirmation email containing information about joining the meeting.

Please e-mail padg@case.edu if you have questions about how the Zoom version of the Friday Lunch will work or any other suggestions. Or call at 216 368-2426 and we’ll try to get back to you. We are very pleased to be partnering this semester with the Siegal Lifelong Learning Program to share information about the discussions.

Best wishes for safety and security for you and yours,

Joe White
Luxenberg Family Professor of Public Policy and Director, Center for Policy Studies

About Our Guests

Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and and Director, Coleman P. Burke Center for Environmental Law at the Case Western Reserve University School of Law, where he teaches courses in environmental, administrative, and constitutional law.

Professor Adler is the author or editor of seven books, including Business and the Roberts Court (Oxford University Press, 2016) and Rebuilding the Ark: New Perspectives on Endangered Species Act Reform (AEI Press, 2011), and over a dozen book chapters. His articles have appeared in publications ranging from the Harvard Environmental Law Review and Yale Journal on Regulation to The Wall Street Journal and USA Today. He has testified before Congress a dozen times, and his work has been cited in the U.S. Supreme Court. A 2016 study identified Professor Adler as the most cited legal academic in administrative and environmental law under age 50.

Professor Adler is a contributing editor to National Review Online and a regular contributor to the popular legal blog, “The Volokh Conspiracy.” A regular commentator on constitutional and regulatory issues, he has appeared on numerous radio and television programs, ranging from the PBS “Newshour with Jim Lehrer” and NPR’s “Talk of the Nation” to the Fox News Channel and “Entertainment Tonight.”

Jonathan Entin has taught Constitutional Law; Administrative Law; Courts, Public Policy and Social Change; and a Supreme Court Seminar. Before joining the faculty in 1984, he clerked for Justice Ruth Bader Ginsburg (when she was on the U.S. Court of Appeals) and practiced in Washington with Steptoe & Johnson. The recipient of several teaching awards and a former co-editor of the Journal of Legal Education, he is at work on a book about equal protection. Among his recent publications are “Getting What You Pay For: Judicial Compensation and Judicial Independence,” Utah Law Review (2011) and “Responding to Political Corruption: Some Institutional Considerations,” Loyola University Chicago Law Journal (2011).

* Kelvin Smith Library requires all entrants to show identification when entering the building, unless they have a university i.d. that they can magnetically scan. We are sorry if that seems like a hassle, but it has been Library policy for a while in response to security concerns. Please do not complain to the library staff at the entrance, who are just doing their jobs.

Schedule of Friday Lunch Upcoming Topics and Speakers:

October 7: Germany and Ukraine. With Andreas Sobisch, Ph.D., Associate Professor and Chair, Department of Political Science, John Carroll University.

October 14: More Money for the IRS. With Timothy Fogarty, Ph.D., Andrew D. Braden Professor, Department of Accountancy.

October 21: To Be Determined

October 28: Is This the EU’s Moment? With Elliot Posner, Ph.D., Professor and Chair, Department of Political Science.

November 4: Midterm Election Forecast (or Guesses) Speakers to Be Determined

November 11: Law Enforcement and the Opioid Epidemic. With Daniel J. Flannery, Ph.D., Dr. Semi J. and Ruth Begun Professor and Director, Begun Center for Violence Prevention Research and Education, MSASS.

November 18: The First Energy Scandal and the Challenge of Utility Regulation. With Miranda Leppla, J.D., Director, Environmental Law Clinic, CWRU School of Law.

November 25: Thanksgiving Break

December 2: To Be Determined

December 9: To Be Determined