Hardiman, Larson, Pryor, Sykes, and Trump’s Supreme Court shortlist.

What to Expect From Trump’s Supreme Court Nomination

What to Expect From Trump’s Supreme Court Nomination

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Jan. 18 2017 12:51 PM
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How Trump Will Reshape the Supreme Court

Read what Slate’s Amicus podcast asked one of Justice Scalia’s former law clerks about Trump’s shortlist.

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This is a transcript of Episode 57 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the Supreme Court. I’m Dahlia Lithwick and I cover the courts for Slate. Two hundred and ninety-three: That, in the end, was the grand total of days that Judge Merrick Garland waited before his nomination to the U.S. Supreme Court officially expired this week with the swearing in of the new Congress. So it went that Mitch McConnell’s steadfast refusal to hold a hearing for Garland really paid off. Some Republican senators declined to even give the nominee a courtesy meeting. As Judge Garland returns to his seat on the D.C. Circuit Court of Appeals, speculation turns to whether or not Senate Democrats are going to consider turnabout to be fair play. In an appearance on MSNBC this week, minority leader Chuck Schumer suggested to Rachel Maddow that they very well might.

Chuck Schumer: We are not going to make it easy for them to pick a Supreme Court justice.
Rachel Maddow: Is there an argument to be made, though, if it is a fair statement that that was basically a stolen seat.
Schumer: Yes, yes.
Maddow: So it isn’t theirs to fill, then in that case, no nominee would be legitimate because that seat should have been filled by President Obama.
Schumer: I can’t—It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support, so you’re right.
Maddow: And so you would do your best to hold the seat open?
Schumer: Absolutely.

Lithwick: If it’s hard for Schumer to imagine a nominee that Democrats could support, that’s probably because he’s well aware of the contenders. The president-elect’s team has reportedly narrowed the shortlist to eight names. On today’s episode, we’re going to parse that Trump shortlist and consider the ways that the people on it could alter the balance of the Supreme Court. We’re also going to preview a big case that the justices will take up next week having to do with public education and special-needs students.

First, we turn to William Jay. He’s co-chair of Goodwin Procter’s appellate litigation practice and head of the litigation department in that firm’s D.C. office. He did a five-year stint as assistant to the solicitor general, and he’s argued, I think, 14 cases at the high court. He’s also a former clerk to the justice whose seat is now empty, that of course being Justice Antonin Scalia. Welcome to Amicus, Willy Jay.

William Jay: Thank you so much for having me.

Lithwick: Was I right about 14?

Jay: It’s 14, yes.

Lithwick: Good, and counting. Willy, I want to start by asking you just to tell us a little bit about clerking for Justice Scalia. Do you have one emblematic story that captures what he was like or what you think about when you think about him?

Jay: I think of him laughing. Almost all my favorite memories of him are of him laughing, often coming into the clerk’s office holding a piece of paper, reading out loud something that he had just written that he was tickled by or thrilled with. He’d yell, “Listen to this. I’ve ... this is really good. Listen to this.” Then he would read it dramatically. One of my favorite memories was of an opinion that we worked on together, and I had helped him with. His custom before circulating an opinion to his fellow justices was to check every citation over himself. He would sit there with a cartful of books reading every opinion that he cited, every statute that he cited, making marginal notes on the draft opinion.

This was an opinion that had to do with government support for various different agricultural products. It was the occasion for him to flip through Title 6 of the United States Code looking at all the different provisions that were cited in it and going, “Hass avocados, ha, can you believe this? Apricots, we have a program for apricots. Eggplant, unbelievable,” laughing the whole way.

Lithwick: Did you feel like it behooved you to laugh along as his clerk or were you entitled to sometimes just sit stony-faced while he laughed?

Jay: I never had to think about it because he was always funny.

Lithwick: OK. Good answer. I want to start, Willy, by asking you this. His seat has been open since February. You’ve argued at the court since then.

Jay: Yes.

Lithwick: What’s it like with eight justices? Is it palpably different? I mean that in two ways: One, I know what it’s like from sitting and watching his absence, it’s a huge presence that’s missing, but also, do you feel that there’s a difference in terms of how you prepare a case knowing there’s only eight justices there?

Jay: I do think so, because although he would even advise lawyers, “Hey, I’m only one vote, so even though you know, for example, that I won’t accept your legislative history argument and I will make fun of you in the courtroom, my colleagues might actually fall for it. So you absolutely should include all of that stuff in your brief.” I think that the absence of Justice Scalia or someone willing to poke at arguments like that, though, does embolden the advocate in a way that wasn’t true when you knew that Justice Scalia would be sitting there waiting for you the second you went to the committee report or the floor debate.

Lithwick: Huh, interesting. Do you feel that every single case now that goes up to the court, every advocate is thinking, “How do I keep this from being 4–4?” Is that the animating principle here? How do I get through this thing in a way that will keep it from being a tie?

Jay: Certainly if you’re the petitioner, you don’t want it to end in a tie. If you’re the respondent, you might well be perfectly happy with a tie.

Lithwick: You might be super happy, yeah.

Jay: Because not only do you live to fight another day, but sometimes it’s easier if there’s no need to get everyone to agree on a common rationale. If everyone knows that a four-to-four affirmance isn’t going to set a precedent, maybe that’ll be very simple. That said, I do think that the court seems to be trying very hard not to hand down very many 4–4 affirmances.

I think that even if it doesn’t seem like an ideologically charged case that might break down along the familiar left/right lines, I do think that advocates are thinking about, What is an aspect of my theory or what might be a fallback theory that could command broader agreement? Could I live with it or am I bound and determined to stick with my more sharp-edged theory that might be appealing to fewer justices and might have less chance of getting to five votes?

Lithwick: Let me ask this, Willy, and feel free to argue away. I know you will. Mitch McConnell, having obstructed Merrick Garland for almost 300 days, announced this past week that Americans “will not tolerate” obstruction if Democrats tried it. Now, this feels a little like rank hypocrisy to me, but is there some principle animating this obstruction for me but not for thee that makes some highfalutin sense beyond just the sort of junkyard scrapping that now passes for how we confirm justices?

Jay: I do think that searching for principle on Capitol Hill in the judicial confirmation debates is awfully hard.

Lithwick: Thank you.

Jay: It’s like Diogenes searching for an honest man, precisely because people on both sides of the aisle say things when one person is president that is exactly the opposite of what they were saying when someone else was president. Without identifying particular people or pointing particular fingers, I don’t think that everyone involved in these debates is always sticking hard to principle. That said, Senator McConnell had said the next president will fill this seat. OK, well, now we have a next president. It happens to be the president that McConnell supported. I guess the question is: If Hillary Clinton were filling the seat, do you think Senator McConnell would be falling in line saying, “OK, yeah, we said she got to fill the seat so let’s move along”?

Lithwick: Let’s talk about the Trump nominees because you, in a piece I think was in the New York Times, characterized the Trump shortlist, which was in a pretty long list of 21 potential justices to fill Justice Scalia’s seat. You characterized it as meeting two interesting goals and I want you to talk about it. I think you said Trump managed to not tap a bunch of establishment conservatives and at the same time to completely mollify the conservative establishment with that list. Is that a fair characterization of what you think that shortlist was trying to do?

William Jay: I don’t have any inside information. All I can do is look at the list and see what seems to unite the names on it. Especially when you looked at the first list, the almost complete absence of graduates from elite Ivy League law schools was really striking. You couldn’t help but notice that and think that, considering who was included and then who wasn’t included, you know, no Paul Clement, no Brett Kavanaugh. Perhaps that has something to do with where they went to law school and where they lead their professional lives in Washington, D.C. It was a list that steered away from the coasts and away from the Ivy League. On the first list, the only Ivy League graduate was Judge Colloton, who sits smack-dab in the middle of Trump-supporting Iowa.

Lithwick: Some of the folks on the—I think there’s a shorter version of the list now. I think Politico’s reporting it’s down to about eight people, and I wonder if you would just run through them, tell us which court they emanate from. Then tell us, if you would, if any of them would have also been on the shortlist of a Jeb Bush or a Ted Cruz had they won the presidency.

Jay: Sure. The list, as I understand it and has been reported, in no particular order, consists of Judge Steve Colloton from the 8th Circuit who sits in Des Moines, Iowa; Judge Ray Gruender, also from the 8th Circuit who sits in St. Louis; Judge Diane Sykes from the 7th Circuit who sits in Milwaukee; Judge William Pryor from the 11th Circuit who sits in Birmingham, Alabama; Judge Neil Gorsuch from the 10th Circuit who sits in Denver; Justice Joan Larsen of the Michigan Supreme Court; Judge Tom Hardiman of the 3rd Circuit who sits in Pittsburgh; and Judge Ray Kethledge of the 6th Circuit who is in Ann Arbor, Michigan.

You asked if any of them might have been on a shortlist for another Republican president, a President Ted Cruz or a President Jeb Bush, and I think the answer is clearly yes. Several of them would be on the shortlist for literally any Republican president. I think what you’ve seen is President-elect Trump has cast a bit of a wider net looking at state supreme courts, looking outside Ivy League law schools for candidates to include in the list, which I think is generally a good thing.

Lithwick: Do you have somebody who stands out—I know, again, this is not based on insider information—somebody who stands out on that list that you’re very excited about? Is there someone that you’re really, really keen on whose name has been floating around?

Jay: There’s no one that I’m really, really keen on in the sense that if by some crazy chance the president-elect were to call me up and say, “Who should I pick,” that I would have a ready answer. I think there are a lot of excellent names on what’s been reported to be the shorter version of the longer list. I will say that I think that the inclusion of Joan Larsen is interesting and striking for several reasons. Number one, she is a justice on the Supreme Court of Michigan, which we haven’t had representation from alumni of the state judiciaries for several years now on the Supreme Court. That may or may not be a bad thing, because the jobs are a bit different, but it was interesting to see so many state judges on Trump’s longer list. Of those, I think Joan Larsen is a terrific person who is worthy of inclusion on anybody’s shortlist.

Lithwick: You should note that she’s a Scalia clerk, right?

Jay: That was the next thing, yes.

Lithwick: OK.

Jay: If there was any noteworthy thing about her being considered to fill Justice Scalia’s seat, it is that she clerked for Justice Scalia in the early ’90s and was very close to him. I know that somewhere he would be smiling.

Lithwick: Talk a little bit about what qualities—again, I know Trump isn’t calling you, but he might be listening to Amicus this weekend and tweeting it. Tell us, Willy, what Scalia qualities you think are really crucial to try to replicate. You talked a little bit about the use of legislative history, we could talk about originalism and his impact on that, but are there qualities that you think, beyond just that he was an incredibly important thinker in conservative jurisprudence, specific qualities that you think Trump should seek to replicate? Or is this not about kind of building a better or newer Scalia, this is about something else?

Jay: I don’t know what judicial philosophy the president-elect wants his justice to embody, but I do know that there are a couple of aspects of Justice Scalia’s performance as a justice that I would think he would want to replicate. When you hear what they are, I think maybe you’ll agree that a lot of presidents would want their justices to replicate that. Here are two:

One, adherence to principle rather than being swayed by the results in particular cases. One thing Justice Scalia liked to say about having a particular philosophy was that you could check him. You could verify in particular cases whether he seemed to be adhering to his own neutral principles of legal interpretation, or whether it just seemed like he was voting for the party that he wanted to win. I know there are people who disagree on the outcome of that analysis, but you can’t deny that he had a philosophy and that you were able to evaluate his compliance with it from case to case. I think that that’s a good thing in a justice.

The second thing is sheer ability to persuade with the written word. I don’t just mean your colleagues, although that’s important as well. Justice Scalia was first and foremost a teacher. He went out into the world. He talked to the non-lawyers who are listening to this podcast. He would speak at a variety of different settings, law schools but also non-law schools. He was on 60 Minutes in a very successful conversation with Lesley Stahl about who he was, where he came from, and what he thought. He was singularly gifted at explaining clearly, unambiguously, persuasively, and colorfully what a case was about and why he was voting the way he voted. That’s one of the reasons that so many of his opinions are read by law students and are really embraced by law students, including law students who, as Justice Kagan said recently, law students who would say to her when she was a law professor, “Professor Kagan, you know, I don’t want this to be right, but it just has to be right.”

Lithwick: I wonder if part of that big bombastic personality was also it. Certainly in the days and weeks after Justice Scalia died, there was a lot of conversation about how he had this tremendous influence off the court, changed all of our lives, I think, in law school, and maybe less persuasive on the court because of the sharp elbows. I think we could all agree that no law student could read him without being changed, but is persuasion, and I’m thinking now of someone like Elena Kagan, who really puts a premium on getting to five, getting that fifth vote, is that a quality that maybe Justice Scalia didn’t have in the amounts one might wish for if one wanted to see really, really effective justicing, or am I selling him short?

Jay: I think that that argument has been made in kind of two different ways, and let me break it apart. Some people said that basically his dissents were so pungent and so mean, for shorthand, that he alienated his colleagues and he made his colleagues less likely to join him in other cases. I don’t think that that’s right. Justice Kagan writes some pretty pungent stuff too, but as you said, she’s someone who’s a good coalition builder.

I think, though, that the second way in which you can levy that criticism at Justice Scalia, that he was not willing to bend principle for the sake of getting to a majority in a lot of cases, that there are a number of cases in which other conservative justices joined one opinion and he and perhaps Justice Thomas would not join it, even though if they had, there’d be a majority for the side he was voting for, because he insisted on what he saw as a more principled, perhaps more bright-line approach, rather than something flabbier that would resolve that case but not settle the relevant area of law. I think that’s a criticism you can levy at him, that he was not willing to go along for the sake of getting to five a lot of the time.

Lithwick: In a normative way, Willy, is that a quality one would seek in a new justice, or if Justice Scalia didn’t manage to get a coalition around some of the originalist philosophy that he was trying to put forward, is it important that his replacement be able to get to five no matter what or stand on principle no matter what?

Jay: It’s a good question. I suspect that the president would like to have both, right? He would like to have a justice who stands on principle and is so singularly persuasive that she wins everyone to her side without having to give an inch, but I recognize that’s often not possible. What I think Justice Scalia might well say is that his ability to change minds long-term might have been diluted if he regularly was bending toward the center of gravity of the court for the sake of forming a majority.

Lithwick: You said “she,” so I feel that I have to ask you about Diane Sykes of the 7th Circuit, another shortlister. We talked about Joan Larsen. She’s, in my view, certainly in the top three candidates and somebody whose name Trump has actually used. Is she, in your view, a very, very strong contender for this seat?

Jay: I would think so, but, again, they’re not asking me, but you know, she—

Lithwick: Not yet. Not yet, Willy.

Jay: But she has several things in her background that are interesting and what I think are likely to be appealing to the president-elect. One, she is from the Midwest. She’s from Wisconsin, and she’s had a long track record as a judge, both state and federal. One other interesting thing that’s worth noting is that when she was appointed to the 7th Circuit, President Bush agreed with the then two Democratic senators from Wisconsin to consider the recommendations of the bipartisan judicial selection commission that the senators and Congressman Sensenbrenner had established out in Wisconsin. That commission recommended among others then–State Justice Sykes, and I believe Sen. Feingold and Sen. Kohl both returned their blue slips, did not oppose giving her a hearing, and although I can’t remember for sure, they may well have supported her confirmation at the time as well.

Lithwick: The last name I want to ask you about is William Pryor of the 11th Circuit, again, somebody that President-elect Trump has said by name is someone he’s interested in, but I want to ask you a sideways version of the question. That is, Pryor probably most famously is very, very much an anti-Roe candidate. He famously said it was the worst abomination in constitutional law. This is, I think, the one thing everybody knows about Pryor. I think Trump has very clearly said that Roe is his litmus test, that the one thing he says beyond a shadow of a doubt is we don’t need to relitigate gay marriage, but boy are we going to strike down Roe and send it back to the states. Is this next seat simply going to be a massive mud fight about Roe?

Ray Gruender The answer to that is probably, just because as you say, the president-elect has suggested that all of his judges—I think the quote is, “The judges will be pro-life”—and so, whether they have a track record like Judge Pryor or whether they don’t, I suspect that the Democrats in the Senate will attribute to each and every possible nominee, to anyone that President Trump might send up, the view that the president himself has espoused, and say, “Aha, you must be a vote to overrule Roe, whether you will say so or not.”

Lithwick: Isn’t that the problem with setting out a litmus test, that that presumption is probably not unreasonable given that Trump has pledged that that’s what he values, right? In a sense, he set every judge on that list up by doing that?

Jay: Yes, he has said that. I wonder how he knows. In particular, he set this list out, but several of the people on the list who have been asked to recuse from particular cases, for example, in their current jobs, based on their inclusion on the list, several of them have publicly stated that they’ve had absolutely no contact with him at all. He may have stated publicly that everyone on the list is pro-life, but we have no way of knowing what his basis for saying that is.

Lithwick: I think that leads to my last question, which is, at least as far as Politico has reported this week, he actually hasn’t met with any of these finalists on the list of eight. It leads me to wonder, and I’m remembering having Orin Kerr on this show right after the election talking about the same issue, and his sense was, why would he pick from this list at all? Why don’t we assume Trump’s going to Trump, and he’s just going to pick someone, some Harriet Miers–style somebody? Is that on the radar in your view? Do you think that this is going to be a pick that is going to be as Establishment or “small e” establishment, given that it doesn’t include Paul Clement, but is this going to be a pick that is going to make the conservative-legal establishment happy or is there some sense that he just doesn’t really care about the courts?

Jay: I don’t know what he thinks about the courts. I do think that if he went off the list, the first reaction would be, “Oh my gosh, he’s gone off the list,” but the second reaction would be, “OK, who did he pick? What is that nominee like?” But he did say very clearly during the campaign that he was going to pick only from the list. If he went off of it, then that probably would become the story right away.

The story becomes the president breaks his promise, partly because whoever you pick, it takes a while to write the story and do the background profile of who this person is and where they came from, and if they’re not on the list, you and your colleagues in the fourth estate may not have something already in the can prepared about them. The risk is that the story becomes, “Oh my gosh, he went off the list,” rather than, “He has today named a solidly respected conservative judge from the, you know, X Court of Appeals.”

Lithwick: Willy Jay is co-chair of Goodwin Procter’s appellate litigation practice. He’s head of the litigation department in that firm’s D.C. office. He was assistant to the solicitor general for five years, has argued 14 cases at the high court, and if Donald Trump calls him this weekend, we hope to hear about it on Twitter. Willy, thank you so very much for joining us this week on Amicus.

Jay: Thanks for having me.

* * *

Lithwick: The government’s responsibility to educate special-needs students is not a topic that often comes up before the U.S. Supreme Court, but next week the justices will take up that very issue in a case that’s called Endrew F. v. Douglas County School District. Education advocates see this as an important opportunity for the high court to really clarify what level of educational benefits the public schools are required to provide to children with disabilities under the Individuals With Disabilities Education Act, or the IDEA.

A ruling in this case would have vast implications for students with disabilities across the country in terms of the standard that school districts have to meet when they teach students with special needs. At bottom, the issue in this case is whether schools must provide these students an education basically equal to other students. Joining us now from his office in Denver, Colorado, is Jack Robinson, a lawyer for Endrew F., the student at the center of this case. Welcome to Amicus, Jack.

Jack Robinson: Thank you for having me.

Lithwick: This case, I want to set the table for our listeners, and you’ve been involved in this case almost from the beginning, I think. This case involves a student who is known in the court papers only as “Endrew F,” his name is Drew, and it dates back to 2010. His parents at Highland Ranch, Colorado, pull him out of the public elementary school. Is that right, and can you explain why they pulled him out of his public school?

Robinson: That is right. They gave the school district notice and pulled him out, telling them that they were dissatisfied with Drew’s educational progress and experience. Really it didn’t happen overnight. Sort of as the briefs explain, this was a fairly long period of time, certainly over three years, of the parents experiencing behavioral decline, socialization decline, communication decline, over these years, and really the mom being very involved in the school and trying to do everything she could to make things work. It got to such a period of time that the school district, their sort of go-to response when Drew was having a difficult time or having a meltdown or was not compliant, they would just call the parents and have mom come and pick him up. This began happening on a more and more frequent basis.

There are a couple of incidences in, say, the spring of 2010 where Drew got out of the class unnoticed and was found in the school building. On another occasion, he actually got out of the building unnoticed and was brought back to the school by a neighbor. Drew is nonverbal, has obviously communication, socialization issues, and Drew came out of the school unnoticed, unnerved. The parents, it was kind of the final straw that, look, if you cannot keep my child safe, then I cannot bring him back to this school. That was sort of the impetus to take him out and try to get him the services and supports that he needed such that he could learn.

Lithwick: Let’s go back and just clarify. Drew, he’s autistic, he has ADHD, but he was doing OK in the public school system until some point, or he was declining? I’m trying to understand if he was getting worse or the services were getting worse, or is there a sense of what was going wrong here?

Robinson: I think up until his second-grade year, there was some acknowledgment that things were going OK. They closed a program down in second grade and moved him over to this other school in the third grade, different teachers, different programs. I think beginning in his third-grade year, he just started not progressing academically and regressing functionally, behaviorally, his communication. The parents were particularly concerned about the behavior, say, dysregulation, and his lack of ability to socialize or make eye contact with other kids, and basically exhibiting on a more pronounced basis typical symptoms, I guess, of children with significant autism.

The school’s approach was just to deal with the increasing behaviors, which it’s basically admitted in the papers that were filed in this case and in the court’s decisions on this case that the school district really had no clue as to how to address his behaviors or manage his behaviors as they got worse and get him to a point where he could sit and attend and actually learn. I think it was a combination of a number of things. A big part of it was the school district’s sort of failure to bring the resources to bear to figure out how to educate a child like Drew.

Lithwick: His parents pull him, and they move him to a private school where he starts to flourish, right? They see marked changes, and then they ask the district to reimburse them for the tuition at this new school, right?

Robinson: Right, and almost—not almost—immediate improvement. In a lot of kids with autism, it’s fairly typical that they have a very difficult time transitioning to new things, certainly to new environments, to new people, even transitioning from one task to another task. But they placed him in this private school that specializes in education of children with autism, and within a few months, they noticed a very significant decrease in behaviors and increase in attention and flourishing, as you were saying.

The parents did not bring this—what’s called a “due process complaint,” basically, this procedure that’s brought under the Individuals With Disabilities Education Act to request the school district in essence to pay for his education—they didn’t bring that complaint for several months, because they wanted to ensure that it was the school district’s failure to provide him an education as opposed to Drew’s inability to learn.

Lithwick: You mentioned the Individuals With Disabilities Education Act. Can you tell listeners what that act was intended to do? I know it’s been amended, but can you try to give us a sense of why, because I think that the fight in this case is what standard of learning under the act are schools responsible to meet, so can you give us a little bit of a sense of what the act purports to do?

Robinson: Sure. The act was initially passed by Congress in 1975 called the Education for All Handicapped Children’s Act. This legislation was a reaction to a number of lawsuits that were challenging state laws that either barred children with disabilities from access to school or allowed schools just to basically institutionalize children with disabilities, or if they were allowed even in the school building, just to have them in essence languish in a room by themselves. There were a number of lawsuits that challenged those state laws and the Congress, in reaction to that, decided that the nation needed legislation to ensure that children with disabilities, no matter the severity, were provided a free appropriate public education in the least restrictive environment. The statute has been on the books since 1975, but it’s been substantially amended, reauthorized.

In 1982, the Supreme Court, in this case called Board of Education of the Hendrick Hudson Central School District v. Rowley, grappled with the issue of what does a free appropriate public education mean, because “appropriate” and “education,” those two terms are not specifically defined in the statute. Rowley recognized that the IDEA had a procedural requirement and a substantive educational benefit requirement. This was in 1982.

Over the ensuing years, the circuit courts throughout the country have come up with wildly different interpretations of what Rowley construed the substantive standard to be. In, say, the Tenth Circuit, the substantive standard for a free appropriate public education is merely more than de minimis. In other circuits, it is a meaningful educational-benefit standard, which is recognized as being a higher, more robust standard for delivering an education or providing an education. Our case is basically challenging the 10th Circuit’s interpretation of Rowley as requiring an education that’s for a child with a disability that’s little more than nothing.

Lithwick: Just to be really clear, the goal posts are, to the extent that we’re fighting about where we locate ourselves, on the one hand we have a bunch of circuit courts who have agreed with the 10th Circuit that a little bit more than nothing is adequate, and then what you’re asking for is more than that. What does it sound like? What’s the other choice here?

Robinson: The standard that we are asking the Supreme Court to adopt is that the FAPE [Free Appropriate Public Education] requirement obligates schools to provide children with disabilities with substantially equal opportunities to achieve academic success, obtain self-sufficiency, and contribute to society, which is in essence what the IDEA sets forth.

Lithwick: You mentioned the Rowley case. The court hasn’t looked at this since 1982. Even in that intervening time, it seems to me that we probably have vastly different notions about what special-needs kids both require to do well in school and also vastly different notions of what school is doing, right?

Robinson: Right.

Lithwick: Things have changed even since the last time the court took a whack at this question.

Robinson: Right, and importantly, we include this in our briefs, this notion of what education is and the IDEA now is very clear that education is not just academics. It’s not just reading, writing, and arithmetic, but it’s functioning. It’s behavior. It’s communication. It’s socialization. It’s becoming a citizen. Again, the purpose of the IDEA is for students to achieve academic success, to obtain self-sufficiency, to be able to contribute to society, to be employed and go on to further education, which is not attainable under this merely more than de minimis standard. I think strikingly in a lot of the briefs on the school-district side, none of them will admit that merely more than de minimis is right or merely more than de minimis is what they strive for, and yet they cling to this standard because they’re allowed this or can be allowed this incredibly low, low bar upon which to be assessed.

Lithwick: I’m imagining, Jack, that listeners are hearing you speak and thinking, “Well, but he’s asking for the moon.” What you’re asking for is a sea change that is going to impact millions and millions of children and families and schools, and that it’s just unattainable. Of course, we want all kids to get what Drew eventually gets in a private school that specializes in autistic children, but what you’re asking for is just impossibly, dreamily high. I want you to maybe talk for one minute about what the public schools might have done that would have been enough. In other words, were his folks asking for the moon, or what might they have done that would have met the standard that you’re seeking?

Robinson: Right. I think that that’s a very interesting question. Again, I’m not talking across the board, but for instance, in this case, the school district says, Here’s what we’re doing, and this is enough, and we don’t think anything’s wrong, and we’re not going to change anything. The parents are pleading with the school district that things aren’t going well: I shouldn’t have to come to the school and pick up my son every other day because he’s melting down, or my child should not be escaping unnoticed from school. Things have to change. Over a period of time, over a period of years, things don’t change. You know your child has potential that is not being addressed, and the barriers to your child’s access to education are not being removed.

Then, again, the IDEA does allow a parent to say, “Look, you know, done all we can do. We’re going to take matters into our own hands, and if that works out, you know, we’re going to ask you to, to pay for that, because my child is entitled to a free appropriate public education, and he’s not getting it.” In a long way of saying, this case is not a matter of if the school district would have provided one more hour of this service, or if it would have changed this goal to include this. It really was the school district’s failure to adequately assess this child, understand his sort of unique learning needs, and to sort of implement the services and supports that would allow him to learn.

Lithwick: I want to ask you one last question, Jack, and that is because you’ve owned this case for such a long time. How is Drew doing at Firefly now? You described a pretty bleak picture at the start of this interview about what his life was like at school. Can you give us a sense of where he’s at now in his education?

Robinson: Yeah. He’s thriving. He’s doing remarkably well. He’s going to be a contributing member of society. Just looking at, as you said, the bleak picture that was ahead of him before, is no longer the case. It has been a very good investment on the parents’ part as far as allowing Drew to try to reach his potential in being a functioning member of society and living independently.

Lithwick: Jack Robinson’s case, Endrew F. v. Douglas County School District will be argued next week at the U.S. Supreme Court. Jack, thank you so much for joining us today on the show.

Robinson: Thank you. Thank you for taking an interest.