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During oral arguments in Markazi v. Peterson, the Chief Justice got about as worked up as I’ve ever seen at the prospect that Congress tried to legislate an outcome in pending litigation concerning frozen Iranian assets. The statute instructed the lower courts that these funds can be used to compensate families of victims of the 1983 Marine barracks bombing in Lebanon.

The Chief and Ted Olson engaged in a five-page colloquy from p. 30 through 35, without any interruptions. I can’t recall the Chief ever pressing an advocate so hard and for so long. Here are several of his questions during this stretch:

CHIEF JUSTICE ROBERTS: What if, Mr. Olson, Congress passed a law that said, you know, there are a lot of challenges to the statutory interpretation under a particular statute, say the Health Care Act, and it  said in any case involving a challenge to the statutory   interpretation of the Secretary of HHS of that act, once it finds jurisdiction, the Court will enter judgment agreeing with the Secretary’s purpose.

CHIEF JUSTICE ROBERTS: Well ­­ well, but ­ I mean, this Court has a lot of decisions about how to  interpret statutes. And what Congress is saying in my  hypothetical is, well, that’s good for you; we want you  to adopt the Secretary’s interpretation in every case

CHIEF JUSTICE ROBERTS: I think that’s a  little surprising. In other words, Congress can pass a statute and then say whenever the statutory interpretation of the executive branch is challenged,  you, Court, will enter judgment in favor of the Secretary.

CHIEF JUSTICE ROBERTS: Let’s make it even clearer: The ­­ the ­­ the Court has issued its decision saying it agrees with the Plaintiff’s interpretation, but the mandate hasn’t issued yet, and Congress says, boy, we don’t like that decision. They pass a law saying in that case, this is the interpretation you should adopt.

CHIEF JUSTICE ROBERTS: And just so you understand what I’m concerned about. You know, there are places in the world where courts function just the way our courts do, except every now and then, when there’s a case that the ­­ the strong man who runs the country is interested in because a crony is one of the parties or whatever, and he picks up the phone and he tells the court, You decide this case this way. And I don’t care what you thought the law was, decide it this way.

Roberts proceeded to–in Tony Mauro’s words–“lecture” Edwin Kneedler about the separation of powers.

CHIEF JUSTICE ROBERTS: It becomes a problem ­­ with respect, it becomes a problem because our job is to decide cases. And before a lawsuit is filed, there’s no case. But when there is a case, Article III says that’s our job. Their job is to pass laws; our job is to decide a case. When there’s a dispute under one of the laws they pass, that’s our job.

Roberts was, by far, the most active Justice. Here is his record in the Index:

ROBERTS 3:3 16:5 26:3 27:2 27:6 29:12,15 29:24 30:15,24 31:9,22 32:3,7 32:16,20 33:9 34:1,12 35:10 35:14 39:4,18 41:1,17 42:7 44:15 49:14,21 50:3 54:21 61:1

Compare that with the usually-most-loquacious Justice, Scalia:

Scalia 7:3 9:2,7 9:13,18 14:11 14:21,24 15:1 15:10,16,23 27:22 28:11 35:7 43:7,14 43:22 44:1,4 57:22 58:3,8 58:11,14,16,20 58:24

I am going to go out on a limb here and predict the Chief assigns this opinion to himself.

If only the Affordable Care Act mandated that the Justices buy insurance–Roberts would’ve invalidated that law without hesitation.

Today the Supreme Court decided two cases: Hurst v. Florida and Bruce v. Samuel.

In Hurst v. Florida, the Court found parts of Florida’s death penalty violated the Sixth Amendment. The vote was 8-1, with only Justice Alito voting to affirm.

Both the FantasySCOTUS crowd and {Marshall}+ predicted the Court would reverse, but neither got the split. The Crowd forecasted a unanimous reversal, although at 65% Justice Alito’s was the closest to an affirm. Scalia and Thomas were around 80%. The Algorithm accurately predicted Roberts and Kennedy as strong reversals, but Scalia, Thomas, and Alito hovered around a 60% for an affirm.

The second decision, Bruce v. Samuels, unanimously affirmed the D.C. Circuit in a Prison Litigation Reform Act case.  The unanimous affirmance is a very rare case, and one that always throws us for a loop. Usually the Court takes a decision to reverse. However, in this case, there was a massive Circuit split. As Justice Ginsburg notes in a footnote:

Courts of Appeals have divided on which of these two approaches §1915(b)(2) orders. Compare Atchison v. Collins, 288 F. 3d 177, 181 (CA5 2002) ( per curiam); Newlin v. Helman, 123 F. 3d 429, 436 (CA7 1997), overruled in part on other grounds by Lee v. Clinton, 209 F. 3d 1025 (CA7 2000), and Walker v. O’Brien, 216 F. 3d 626 (CA7 2000); Lefkowitz v. Citi-Equity Group, Inc., 146 F. 3d 609, 612 (CA8 1998); Christensen v. Big Horn Cty. Bd. of Cty. Comm’rs, 374 Fed. Appx. 821, 829–833 (CA10 2010); and Pinson v. Samuels, 761 F. 3d 1, 7–10 (CADC 2014) (case below) (adopting per-case approach), with Whitfield v. Scully, 241 F. 3d 264, 276–277 (CA2 2001); Siluk v. Merwin, 783 F. 3d 421, 427–436 (CA3 2015); and Torres v. O’Quinn, 612 F. 3d 237, 241–248 (CA4 2010) (adopting per-prisoner approach).

That the Court affirmed 9-0 was only a factor that they took a case from the D.C. Circuit they agreed with.

Here, both the crowd and the algorithm absolutely blew it. The crowd forecasted a 6-3 reverse, and the algorithm predicted a 7-2 reverse. However, as a highlight, 27 out of the 126 users who predicted this case called a 9-0 affirm. Also, all of the forecasts for the algorithm were below 60%, indicating there wasn’t a strong sentiment about this case either way.

Tonight during President Obama’s final State of the Union, there should be a strong #SCOTUS contingency. The Chief Justice will likely be there, along with Justices Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor. Justices Scalia, Thomas, and Alito, I’m sure will not be around.

But joining the Justices will be frequent litigants before the Court.

Speaker Paul Ryan (now without his beard) invited two members of the Little Sisters of the Poor:

Ryan, who is Catholic, announced Monday that Sister Loraine Marie Maguire, the order’s mother provincial, and Sister Constance Veit will sit in the Speaker’s Box during Tuesday’s address. “The Little Sisters of the Poor care for the most vulnerable among us, and they should be free to practice their faith without the threat of government interference or intimidation,” he said in a statement. “The Sisters’ stand in defense of religious liberty – one of our most fundamental rights – is nothing short of courageous, and it’s my privilege to support their cause.”

Sister Loraine submitted an affidavit in the district court litigation–I will discuss her more in my book.

And, if that wasn’t enough religious liberty litigation for you, Rep. Jim Jordan gave his ticket to the family Research Council, who in turn gave it to Kim Davis!

“I didn’t invite anyone,” Jordan initially said late Tuesday afternoon, as he was jogging to House votes. When pressed on whether he had given his ticket to the Family Research Council, which then gave it to Davis — which is what a Democratic aide told HuffPost had happened — Jordan said he would have to confirm with his office. “I don’t know,” he said.

“My understanding is they gave them to the Family Research Council,” Jordan said, promising to call his staff and get back in touch.

Jordan was later spotted in the Capitol basement, on the phone with his communications director, confirming what had happened.

“Yeah, so we gave a ticket to — at the request of the Family Research Council — we gave the ticket to Kim Davis’ family,” he said.

Jordan said he was fine with his ticket going to Davis, who has been lionized by many conservatives and chastised by many liberals for her refusal to issue marriage licenses to same-sex couples, and that the secrecy wasn’t intentional.

“I found out today,” Jordan said. “And I’m being totally honest with you: That’s — Family Research Council asked us, her family wanted a ticket, and we said ‘OK.'”

I’ll be watching to see if there is any other SCOTUS-related news.

Update: Here is Paul Ryan taking a selfie with the Sisters.

Meet my #SOTU guests Sr. Veit & Sr. Marguire. Seeking relief from the health care law. pic.twitter.com/eXEomXmcVz

— Paul Ryan (@SpeakerRyan) January 13, 2016

The opening panel of the Federalist Society Faculty Conference was titled The New Chevron Skeptics. Here is a description of the panel:

When Chevron was first decided it was generally welcomed on the right side of the political spectrum as a principled method constraining judicial discretion and permitting the executive to exert policy control over the administrative state. But as the administrative state continues to grow, some now see Chevron as removing an important check on government power and an abdication of the judiciary’s authority to say what the law is. Some members of the Supreme Court are now open to reconsidering judicial deference to agency action, at least in certain areas, such as determining their own jurisdictions and interpreting their own regulations. The panel will consider the extent to which the new skepticism toward Chevron in particular and judicial deference to agencies in general is justified.

This timely discussion covered what seems to be a growing sentiment in conservative and libertarian circles that Chevron needs to be paired back. (I tend to agree with this). The Chief Justice’s dissent in City of Arlington, as well as his majority opinion in King v. Burwell suggests he is on board. Justice Thomas would reject our entire system of administrative law, so he’s on board. Justice Kennedy hinted at this in Gonzales v. Oregon. I’m not sure about Justice Alito. Justice Scalia is really the wild card, but I think he is slowly coming around on Chevron.

Kicking off the panel was John McGinnis who worked in the Solicitor General’s Office when Paul M. Bator argued Chevron. As John relayed the history of the case, Bator decided to frame the case as not merely one of statutory interpretation, but about the separation of powers and institutional competencies. For decades, the D.C. Circuit had been making up administrative law according to the whims of David Bazelon and his colleagues (only a slight exaggeration). They routinely disregarded the determinations of executive-branch agencies, and imposed arbitrary rules of how the regulatory state could operate. (As a side note, the Vermont Yankee nuclear plant has recently been replaced entirely by natural gas–Bazelon got the last laugh). The Reagan Justice Department was tired of this obstructionism, and wanted to get matters of regulatory affairs away from the “activist” courts. Chevron served this purpose. So long as the agency’s interpretation of an ambiguous statute was reasonable, the courts could not second-guess the agency’s judgment. From President Reagan’s perspective, with the liberal D.C. Circuit below him, that made a lot of sense.

Fast-forward to the present day. The Chevron Skeptics on the right argue that deference has gone too far, and the courts are letting the Obama Administration vastly exceed the bounds of its interpretive authority. For many conservative and libertarians, it would be more optimal for the Roberts Court to reign in executive excess than to give Sylvia Burwell or Jeh Johnson unbridled discretion.

But what happens if we are dealing with a Republican president in 2016. As the Reagan and Bush 41 judges slowly phase out, the Obama judiciary will predominate the lower courts–the D.C. Circuit in particular–for a generation. Will the skeptics be so skeptical if the courts do not defer to the conservative regulatory agenda? Although, in theory at least, the Supreme Could could facilitate error correction, they can’t catch them all.

Another hypothetical. What happens if we are dealing with a Democratic president in 2016. We will now have a liberal administration, whose regulations are being interpreted by Obama and Clinton (42 and 45)-appointed judges. For at least some time, the Supreme Court could serve as a form of error correction, but when Hillary Clinton makes between 1 and 4 nominations, that goes away.

And even if Congress remains in Republican control, and no major legislation is passed, the increasingly-attractive option of executive action can only be halted by the Courts.

I am not a fan of how far Chevron deference has been taken. I’ve written several briefs to that effect. However, I don’t quite know what this skepticism portends after 2016.

In the Boston Globe, Secretary Clinton wrote a fairly detailed opinion piece about the importance of Supreme Court appointments.

First she highlights decisions she dislikes (Bush v. Gore, Shelby County, and Citizens United) with cases she likes (Obergefell, NFIB, King, VMI):

THERE’S A LOT at stake in this election. Nowhere is this clearer than in the US Supreme Court.

The court’s decisions have a profound impact on American families. In the past two decades alone, it effectively declared George W. Bush president, significantly weakened the Voting Rights Act, and opened the door to a flood of unaccountable money in our politics. It also made same-sex marriage legal nationwide, preserved the Affordable Care Act not once but twice, and ensured equal access to education for women.

She identifies as a “lawyer and former law professor.”

As president (and a lawyer and former law professor), I’ll appoint justices who will protect the constitutional principles of liberty and equality for all, regardless of race, gender, sexual orientation or political viewpoint; make sure the scales of justice aren’t tipped away from individuals toward corporations and special interests; and protect citizens’ right to vote, rather than billionaires’ right to buy elections.

I continue to laugh out loud how Clinton, whose campaign and unaffiliated PACs are aided by billionaires continues to rip decisions that allow her to do what she has done.

She cites Rubio, Cruz, and Christie who would appoint the wrong type of Justice:

Republicans running for president have a different view. They see this election as an opportunity to pack the courts with jurists who will turn back the clock. Marco Rubio says he wants “more Scalias” on the Court — justices who would rule against marriage equality and roll back a woman’s right to choose. Ted Cruz says his judges will be “rock-ribbed conservatives.” Chris Christie says that if the court were filled with his type of judge, they would have ruled against the Affordable Care Act and marriage equality.

She discusses Friedrichs v. California:

Take organized labor. On Monday, the court hears oral arguments in Friedrichs v. California Teachers Association. For decades, courts have said that, because all public employees enjoy the benefits that unions negotiate, it’s only fair that all employees contribute to the cost of securing those benefits. If the Supreme Court reverses that precedent, it’ll be harder for working people like teachers, social workers, and first responders to negotiate together for better wages and benefits.

And the Texas abortion case:

Take abortion rights. In March, the court will look at a Texas law that imposes needless and burdensome requirements on doctors who perform abortions. If the law is allowed to stand, there will be an estimated 10 health centers left in Texas — a state with 5.4 million women of reproductive age — where women can get safe, legal abortions. As more state legislatures limit access to abortion, with 230 separate restrictions passed since 2011 alone, the courts are increasingly the last line of defense for those of us who believe that women should control our own health decisions.

Evenwell:

Take voting rights. Last month, the court heard a case concerning how states draw electoral maps. Now it’s weighing whether to change the simple, fundamental principle of “one person, one vote.” Its decision will determine whether some or all of us count in our elections.

Fisher:

Or take affirmative action. Last month, the court heard a case about whether the University of Texas can take race into account, among other factors, when determining the composition of its student body. The court has long recognized the value of racial diversity in higher education, as have our military leaders, business leaders, and educators. It has also honored the central premise of Brown v. Board of Education, that minorities must not be excluded from American public life or institutions. This case will help determine whether that principle endures.

DAPA–and here Clinton urges what the Court “should” do:

The court is now deciding whether to hear a lawsuit about President Obama’s executive actions on immigration. If it decides — and it should — that his actions are legal, millions of families will rest a little easier, knowing that despite Congress’s inability to pass comprehensive immigration reform, the progress made under President Obama will be protected.

Clean-Power Plan:

Meanwhile, 26 state attorneys general have sued to overturn Obama’s clean-power plan. Those lawsuits are working their way through the courts now, and their outcome will have a significant impact on our ability to tackle climate change and reduce carbon pollution.

Building to the crescendo:

The stakes are clear. In a single term, conservative justices could undermine virtually every pillar of the progressive movement. Imagine what they will do in the future if the court becomes even more conservative. Those who care about the fairness of elections, the future of unions, racial disparities in universities, the rights of women, or the future of our planet, should care about who appoints the next justices.

And finally she charges Republican-appointed judges with “judicial activism.”

After years of accusing liberals of judicial activism, conservatives are wholeheartedly relying on Republican-appointed judges to undo progressive achievements. They’re using radical legal strategies to accomplish through the courts what they’ve failed to do through legislation, like dismembering the Voting Rights Act or attacking unions. A Republican president would support those efforts. I will oppose them.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (here, here, here, here, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz, Hillary Clinton (here and here), and Bernie Sanders.

Disclosure: I advise the Rand Paul campaign.