00:00Would any of you advise a client to defy a federal court order?
00:14No. None of you would? How about you, Professor?
00:20I mean, under most circumstances, we follow the government and private parties follow court orders.
00:26I suppose it's not, I would not rule out ever the possibility that in a sufficiently egregious order, there should be some consideration of whether there's a way.
00:33So in some cases. I think it's a qualified answer, yes.
00:35In some cases, you would.
00:37In an extremely narrow band of cases, I think it would be considered, yes.
00:41Okay. Do any of you think that nationwide or universal injunctions are not being abused?
00:56I'm not sure what the, if I may, Senator, I'm not sure what the time horizon of the question is.
01:00I don't think that, there could be good faith disagreements about the correctness of some of them, but I have not seen in the last four months abuse, no.
01:09I've read your stuff, and I've read your writings, and I don't want to get bogged down with this, but I have little respect for your opinion, because I've read your stuff.
01:21When someone is in the White House that you agree with, and someone gets a universal injunction against him, you don't like universal injunctions.
01:31You call them judges acting like they're politicians in robes, and judges looking like crass political actors, but now that President Trump's in the White House, who you dislike, you think that universal injunctions taste like pumpkin pie.
01:52So I have to discount what you say, because I think you act on your political beliefs, and I worry that that's what you're teaching your kids.
02:05So I'll leave you out of that.
02:08Do you think nationwide injunctions are being abused?
02:12Certainly, Senator.
02:13I think that is the one.
02:13They're being abused by both sides, aren't they?
02:16Yes, Senator.
02:17Both Republicans and Democrats are forum shopping, aren't they?
02:23Certainly.
02:25Professor, do you disagree with that?
02:28I think both sides are abusing them.
02:29I agree.
02:31Okay.
02:33Both sides.
02:36There are no clean hands here.
02:37Now, your suggestion is that when a federal judge issues a nationwide injunction, there should be an automatic stay and an expedited right of appeal.
02:57Is that right?
02:58Yes, sir.
02:59Do you disagree with that?
03:02I haven't given enough thought to have a position on it, Senator.
03:05I suspect, Professor, your answer will be it depends on who's president.
03:09No, Senator.
03:10Let me ask you about this.
03:14What if we had a rule?
03:15I was reading an article the other day.
03:18I'm not suggesting it.
03:20I just want your opinions.
03:21That said, if a president, any president, issues an executive order, let's say, that clearly violates settled Supreme Court precedent, that a federal judge can't issue a nationwide injunction.
03:42For example, if a president issued an order that said, no one in America has right to counsel any longer, included but not limited to, in a felony case, having the government pay for your lawyer if you can't afford it.
04:10That clearly violates settled Gideon v. Wainwright.
04:17In that case, a judge has no authority or does have authority to issue a nationwide injunction.
04:24But in a case where the law is unclear, a judge should refrain from that.
04:30Now, obviously, we'd have to trust our judges, but we're supposed to be able to trust them anyway.
04:36What do you think about that?
04:39I don't agree with that, Senator, because I think universal injunctions transgress the limitations under Article 3, even if the underlying merits are clear.
04:48I happen to agree with that, Senator, I don't think there's any basis under Article 3, under Supreme Court precedent, under the English common law for nationwide injunctions.
05:01I think politicians have helped judges, and many judges are politicians, to just make it up.
05:08And many of them are like Professor Shaw here.
05:11If they like the president, they're against nationwide injunctions.
05:16If they don't like the president, they're foreign.
05:19Professor, let me ask you this while I have you.
05:26On April 22, 2024, you said there are some members of the Supreme Court that are evil.
05:36Which justices were you talking about?
05:39I'll take it your word, Senator.
05:40I don't recall using that word.
05:42All right, here's what you said.
05:43You were talking about the majority opinion in Muldrow v. City of St. Louis.
05:48She said, quote, Justice Kagan, I mean, will she be able to control the opinion's future distortion by her evil colleagues?
05:58Probably not, end quote.
06:00Who were you talking about?
06:01Sir, I'm very skeptical.
06:05If it was a transcription, it was probably a transcription error.
06:07I do not think I said that.
06:08No, you said it.
06:10Once you own up to it, which you call some members of the Supreme Court evil.
06:15Now, which ones do you think are evil?
06:16I would have to refresh my recollection.
06:18I've been very critical of some members of the Supreme Court.
06:21You're embarrassed that you made that statement, aren't you?
06:24You're an officer of the court.
06:24It doesn't sound like something that I would say.
06:26You know what I'm embarrassed at?
06:27That you're teaching our kids.
06:29I don't refer to Supreme Court justices as evil in the classroom, sir.
06:34You did right here on your podcast, April 22, 2024.
06:37Okay.
06:38You're as big as Dallas, and you're an officer of the court, and you're here advising us to
06:46be respectful of federal judges, and you say they're evil members of the United States
06:52Supreme Court.
06:53Don't gag me with a spoon.
06:58You're part of what's the problem in all of this.
07:05Thank you, Senator Kennedy.
07:06Senator Durbin.
07:07So I'm going to give the panel members an opportunity to...
