Dan Epps
Appearances
Divided Argument
Aide-de-camp
But again, I was trying to understand what the position being advanced is, and it seems to be that we're just not supposed to criticize judges at all, I guess, and that somehow doing that is destructive of the rule of law.
Divided Argument
Aide-de-camp
Well, maybe someone out there will come up with better versions of these arguments. But yeah, it was not. I mean, Steve raised this question in his post on his Substack in the aftermath about should he still engage in these Fed Soc events. And he says he's definitely still going to do the student events, but he's not sure he's going to do the national events.
Divided Argument
Aide-de-camp
I think that's really up to Steve. I think in terms of what my view is, I mean, I probably would still do them. I don't think the Federalist Society showed itself in its best light. And I do think that this suggests that maybe having this kind of mix of panels is maybe not ideal. Academics, judges, including some judges who feel a personal stake in some of the criticisms being made.
Divided Argument
Aide-de-camp
And then you have Supreme Court And appellate litigators, people like Cannon, who are going to necessarily be constrained in what they can say, given their role. It seems like maybe not a recipe for the right kind of serious debates for which the Federalist Society is known, or at least wants to be known, right?
Divided Argument
Aide-de-camp
After all that Trump stuff. So lots to say about that. We can talk about that later, I guess. Anything else excuse-wise or is that, I mean, that's not great. We could probably do better than that.
Divided Argument
Aide-de-camp
It's not the kind of thing the Federalist Society usually does. So usually it kind of is very kind of hands off, doesn't take any positions, anything like that. So I was a little surprised by that.
Divided Argument
Aide-de-camp
Yeah. That, that was honestly, that is, that was my take on it at the end, which is, uh, having to go through the thought process of, do I say something? Do I not say something? This is a sitting federal judge. I don't really want to get into something with a sitting federal judge, but I also don't want to let some of this stuff go without comment and make it seem like I agree with it.
Divided Argument
Aide-de-camp
That wasn't my favorite. But again, being biased, but I do think that it helped propagate my ideas in that way. So I don't know. Got a few free nights in DC.
Divided Argument
Aide-de-camp
It's a good one. But I guess from the Fed Soc's perspective, if the goal of the Fed Soc is largely to advance conservative ideas, it seems like a better panel would have been me and Steve and then people like you or Steve Sachs, right? Sure. Who are going to come in with pretty hard-hitting arguments. And Steve has wrote something in response to –
Divided Argument
Aide-de-camp
One of my court reform pieces that was – I don't agree with much of what he has to say, but it was really good and made some hard arguments. And that seems like that's what the Fed Soc should want. And so maybe having this kind of weird role mismatch between kind of academics who are pretty free to say –
Divided Argument
Aide-de-camp
whatever we want, and judges who are constrained and who are not kind of engaged in that kind of same kind of inquiry, same kind of freewheeling discussion, they're somewhat constrained. And then lawyers who are also somewhat constrained. Maybe it seems like you should have academic panels and you should have judge panels.
Divided Argument
Aide-de-camp
But yeah, there was no conscious decision to do that. There was actually one point at which we had a recording session on the calendar and something you were like, oh, can we reschedule? And then it kind of fell apart and we did not reschedule.
Divided Argument
Aide-de-camp
Yeah. But again, even that would be awkward, right? It would be awkward. It would be hella awkward, but it would be interesting. It would be interesting, for sure. And this was interesting. Okay. So yeah, I'm not a no on future invites, but I would be curious to know who's on the panel. This is the second FedSoc event I've done.
Divided Argument
Aide-de-camp
The other one was a Zoom event, but where there was somebody else on the panel who was saying stuff I thought was not just kind of that I disagreed with, but was kind of like wrong and dumb. And that dumb enough that I, you know, maybe dumb is the wrong word, but just required a response. Otherwise it was going to be problematic for me to not, you know, weigh in on this.
Divided Argument
Aide-de-camp
And again, that is a stressful situation to be in. And so I, you know, I think that I might, you know, see who's on the panel and not participate if I feel like it's going to be that kind of a situation just because it's Sure.
Divided Argument
Aide-de-camp
Honestly, not really. I feel like I kind of made the point I wanted. I mean, I think I've expanded on it some here, and I really just do think that... I continue to think we should be able to talk about the structure of the court system and the right way to design it and acknowledge that there are partisan stakes and also try to evaluate the arguments on their merits.
Divided Argument
Aide-de-camp
The partisan stakes might explain why any kind of changes are never going to be possible, but I still think we should be able to say, yes, this is a good way for constructing a judiciary or this is bad or they're not good arguments here and maybe it's one we're stuck with.
Divided Argument
Aide-de-camp
But I do think this exercise of trying to paint people we disagree with as hypocritical, I just – I don't think it accomplishes anything. I don't think it persuades people. And I think it maybe scores points among co-partisans. I mean Mitch McConnell liked Judge Jones' remarks. He came to her. Her defense on the Senate floor, calling Steve the general patent of the legal left, which is great.
Divided Argument
Aide-de-camp
I guess, I don't know what that makes me. It makes me just like, I don't know, aide-de-camp or something. There are a lot of generals. Am I part of the legal left-ish? I don't know. This podcast is not really part of the legal left. So yeah, I don't know. All right. So there's a lot potentially to catch up on. Much of it we're going to gloss over. There was an election.
Divided Argument
Aide-de-camp
Yep. And I'm not going to apologize for the delay because we are very clear with people that we make no promises. But we hear you. We know you want more episodes. And I think we will do so more regularly in the spring. And the show's sweet spot has always been that period of time where the court is grinding out the opinions.
Divided Argument
Aide-de-camp
Yeah, there seems to be a lot of speculation that Justices Alito and Thomas are going to leave and be replaced by their former clerks. I don't really know if that's based on anybody's inside information or if that's wishful thinking or what.
Divided Argument
Aide-de-camp
If that were to happen, I mean, you would then have a kind of five justice, very strong conservative majority, all of whom would be kind of in their 50s or younger. Yeah. Wait, why five? Oh, because the chief would be old. Yeah, I'm not counting the chief.
Divided Argument
Aide-de-camp
I mean, they would still have the chief, but I just mean you would have a full majority of the court that was appointed within a short period of time. And so it could continue collectively to kind of control the court for some significant period of time. Which would be good for some people, bad for others.
Divided Argument
Aide-de-camp
prompt some complicated questions for the court wants to handle it there's more to say about that let's come back to that in a second but just to close the thought yeah i think john sauer has been named as the next sg i mean it has to be you know formally nominated and confirmed and so forth but a missourian right a missourian he was the sg of missouri he's a former clerk for justice glia and he argued the trump successfully argued the trump immunity case
Divided Argument
Aide-de-camp
So he's certainly a very smart, capable, competent lawyer. He may be someone that Trump perceives as more loyal than some of the folks the last time around. It does seem like this new round of executive branch appointments looks to be more focused on people that are perceived as solidly Trumpian people. Have you been vetted for much in this position?
Divided Argument
Aide-de-camp
Yeah, yeah. I mean, you've been pretty loyal, right? I mean, you had that whole thing about saying he was ineligible to be president, but who still remembers that?
Divided Argument
Aide-de-camp
I thought only Congress was allowed to determine whether the president was ineligible.
Divided Argument
Aide-de-camp
Those are a little bit easier for us to respond to in real time than these kind of amorphous case preview type episodes. Yeah.
Divided Argument
Aide-de-camp
All right. Hard to see it. Well, I'll let you know what happens if they call me. Because, I mean, I'm the guy who gets invited to the Federalist Society conventions now, apparently. Although I guess Trump people don't actually even like the Fed Soc. They're too principled, too committed to the rule of law.
Divided Argument
Aide-de-camp
ACS does not strike me as the most active organization. I mean, I got invited to one Zoom panel for ACS in the last couple of years. So I don't know. I've never been invited to speak at their national convention.
Divided Argument
Aide-de-camp
Okay, but does Circle, yeah, anything else to say about election implications? Okay. To circle back to Scrimetti, case with a few too many consonants in a row. Yeah, that one, I mean, it seems clear, I mean, all but certain the Trump administration will change position on day one, right?
Divided Argument
Aide-de-camp
Or however many days it takes to get its staff kind of operational, appointing someone to be the acting SG and so forth. Yeah. I guess there's some possibility that some of the plaintiffs whose petition wasn't granted, their petition could get granted and they could come in.
Divided Argument
Aide-de-camp
So what the alternative is to formally say, you know, we move to have our petition be dismissed or something like that?
Divided Argument
Aide-de-camp
And if you're the Trump administration, it also looks like you're going to win. Right. I mean, it does, based on the argument, it did seem like there were going to be, you know, at least five votes to uphold the state law, limiting, banning this kind of gender affirming care. Justice Gorsuch, strangely silent at the argument.
Divided Argument
Aide-de-camp
I don't know. It was interesting because at the argument, one thing that came up multiple times was Bostock, his famous opinion interpreting Title VII to extend protections to gay and transgender individuals. It's not directly on point because that was a statutory case and this is a constitutional case about the Equal Protection Clause, but relevant because it's the
Divided Argument
Aide-de-camp
United States here is trying to make kind of similar arguments to try to say, well, like this is not just a ban on transgender care. This is a sex-based rule because you're saying this kind of care for a male patient is not okay for a female patient or assigned female at birth patient. And so it's a very similar kind of move logically, rhetorically that was made in Bostock, right? Yeah.
Divided Argument
Aide-de-camp
Yeah, yeah. But I mean, if you take for granted that the Equal Protection Clause does require scrutiny of gender-based classifications, then – and if you buy the Bostock reasoning that – you know, ban, like rules against.
Divided Argument
Aide-de-camp
Transgender, you know, affecting transgender people are just discrimination on the basis of sex. Then put those two together. Then maybe, maybe it works.
Divided Argument
Aide-de-camp
Friend of the show, Cannon Shamigan. Friend of the show, Steve Ladek, now a law professor at Georgetown, previously at Texas. And Fifth Circuit Judge Edith Jones. Who is, so far as we know, not a friend of the show. I didn't get any indication of friendliness towards the show or really- Anime the show? My guess is she's not really aware that the show exists, which is fine.
Divided Argument
Aide-de-camp
Yeah. I mean, but why do you, I mean, sometimes he talks a lot. Sometimes he doesn't talk at all. Why do you think he's not, is he not interested in this case?
Divided Argument
Aide-de-camp
I am looking at the, um, postdoc postdoc transcript and I regret to inform you that you were, the thing you heard was incorrect. Okay. He talked to me, you know, more than a dozen questions.
Divided Argument
Aide-de-camp
I mean, I regret for you that you have one of these rare moments where all Supreme Court knowledge is not perfectly encapsulated in your brain. I have to look all this stuff up. I don't hold this stuff in my head.
Divided Argument
Aide-de-camp
Speaking of, can I just say a quick side note? I have been trying to keep up with things by listening to most of the oral arguments, which I have successfully. And that's kind of fun to just kind of listen to them all. Especially because you can't listen to our podcast. I never listen to our podcast. I don't like hearing myself talk.
Divided Argument
Aide-de-camp
But one thing I noticed, Justice Gorsuch has this move he does a bunch. He's probably done this four or five or six times this term alone, and I haven't gone back. I would love someone to go back and look and see how often he's done this, where he likes to say to the advocate – Let me see if I've got it. And then he gives some theory. And then he likes to say something. He says, have I got it?
Divided Argument
Aide-de-camp
So he says that over and over. This is something that maybe I'd heard him do before, but I never picked up because I didn't listen to them all in kind of close succession. I didn't pick up quite how frequent it is.
Divided Argument
Aide-de-camp
I think he's just trying to make sure he understands the argument. I think sometimes it seemed like maybe he was putting a spin on it that wasn't necessarily helpful, but I think it was mostly, it was on balance helpful. Yeah.
Divided Argument
Aide-de-camp
If you're the Trump administration, maybe the rational thing to do is just file the brief saying we disagree, we disavow the position we took, but don't try to get the case dismissed. Try to get the case decided on the merits because it looks like, based on the argument, that the decision is going to be what the new administration would want.
Divided Argument
Aide-de-camp
I mean, you could. Yeah. I confess to not finding the current administration's position in that very compelling based on existing- Current administration. The Biden administration. Biden administration. Yeah. Yeah. I think it's a very heavy lift to say that this area, the state regulation of medicine is one that should be constitutionalized.
Divided Argument
Aide-de-camp
And I think it depends on this kind of clever rhetorical move of trying to spin these things as just gender classifications when obviously it's deeply related to gender, but I think it's a little bit more complicated than that. And I also tend to think this is an area where
Divided Argument
Aide-de-camp
by demonstration is kind of like way out in front of where a lot of the country is, including a lot of people on the left, I think are actually kind of deeply skeptical. If you talk to them privately, they're kind of deeply skeptical of, you know, some of the, you know, positions on this kind of medical care for kids and arguably kind of further, you
Divided Argument
Aide-de-camp
But the panel, I kind of gave a spiel I have done in various places kind of about here's why I think the basic way we divvy up Supreme Court seats is kind of problematic and is causing kind of long-term breakdown of norms and That is ultimately bad for everybody and we should consider reform.
Divided Argument
Aide-de-camp
You know, ahead of not exactly where the science is, which I think has been really kind of up for debate and moving kind of quickly. And other European countries have kind of dialed some of this back. So I don't know. I never thought this was kind of a winner of a case for the government.
Divided Argument
Aide-de-camp
Yeah, I think the plaintiffs had won multiple of these cases. So it's obviously not a frivolous argument. Getting this court to endorse it just strikes me as extremely implausible. Yeah. Same. I don't see it. And it strikes me as an issue where if Democrats want there to be real change on this issue, it's going to probably have to come from politics and not from the courts. Okay.
Divided Argument
Aide-de-camp
Maybe some quick discussion of some orders list stuff type stuff. I want to talk a little bit about this case, a case gloss up that we were going to talk about a couple of months ago and never got around to it, but let's just try to maybe this episode will be more focused on odds and ends.
Divided Argument
Aide-de-camp
So we had a couple, a couple of digs, a couple of cases dismissed as imprevidently granted, which the court doesn't love to do is kind of embarrassing when that happens. And we had two from the same sitting.
Divided Argument
Aide-de-camp
And in a world where the court really doesn't grant very many cases to have multiple cases digged, I think is kind of embarrassing.
Divided Argument
Aide-de-camp
Well, so one of them I thought was more obviously going to be digged than the other. The one that I thought was very obviously very likely to be digged was this case, NVIDIA, which is these are both securities cases. NVIDIA was a case about kind of pleading standards in securities fraud litigation. And at the oral argument, it was kind of a heavy hitting oral argument.
Divided Argument
Aide-de-camp
It was on the petitioner's side, the defendant in the case. NVIDIA and NVIDIA official. You had Neil Katyal, former acting SG, and on the respondents slash plaintiff side, you had a friend of the show, Deepak Gupta, who's one of the best plaintiff side litigators in the country and has argued before the court a bunch of times and has been able to piece together
Divided Argument
Aide-de-camp
um some improbable victories uh in those cases because he's a very good lawyer and it just it it seemed it seemed to become clear just listening to the argument uh and you know without having gotten deep into the underlying legal issues on my part that the court was getting kind of frustrated that the dpac was not a dpac dpac was sort of saying yeah we you know
Divided Argument
Aide-de-camp
It's the premise of the short article I wrote in the Minnesota Law Review Symposium, which you also had a couple of years ago. And I think it's something similar to what I'm going to say. You and I are both trekking out to Stanford to speak to a class out there about these topics. So not a super fiery pitch. And Cannon gave a version of a speech he gave at Duke about here's why court reform is bad.
Divided Argument
Aide-de-camp
You know, we just think basically saying, you know, we think in this case, the allegations were sufficient. And the court was trying to press Katyal and trying to say, well, are you really taking this categorical position or not that you got us to grant cert on? At one point, Katyal kept saying, kept saying this thing, the complaint eats itself.
Divided Argument
Aide-de-camp
And at one point, this is kind of one of my favorite oral argument moments in a while. The chief justice says, I have just one question about an analogy. I've never heard the analogy, the complaint eats itself. What does that mean?
Divided Argument
Aide-de-camp
And then Katyal tries to basically explain, and I think he's just sort of saying like, you know, the allegations and the complaint don't really, you know, are kind of inconsistent with the theory. And then the chief says, okay, I'm not sure how that's eating itself, but I'll take your word.
Divided Argument
Aide-de-camp
And, you know, that was sort of one of my signals that the argument wasn't going great for his side, the petitioner's side. So, you know, that one, I came out of listening to that one. I thought that one was very likely to get to get digged. And it was, although it was not the first case from that sitting to get digged.
Divided Argument
Aide-de-camp
They also digged this other case, Facebook versus Amalgamated Bank, where the petitioner was aforementioned friend of the show, Kanan Shamigam. And this was basically a case about the kinds of risks, the kind of language that has to be disclosed on a particular corporate disclosure form. I don't know if you listened to that argument.
Divided Argument
Aide-de-camp
It wasn't as obvious to me that that was a clear dig from the argument. It did seem like it was another case where it was unclear. The court was trying to figure out, well, is there a categorical rule here? Or is this just a case that's where there's more agreement about what the rule should be and just disagreement about
Divided Argument
Aide-de-camp
how that might shake out in this individual case yeah i got that sense but so the dig for that one came out first and my reaction was well i thought it was they were going to dig in nvidia not in facebook yeah i i discovered uh that wikipedia has a list this is really useful of all of the digs uh on the court since uh the 1989 term at least that purports to be a complete list Oh, that's amazing.
Divided Argument
Aide-de-camp
Other people speculated they just didn't want to do two in one day because it was extra embarrassing.
Divided Argument
Aide-de-camp
Was there a published dissent from the dig? Nope. That's always so interesting because there's tons of work that goes in and presumably when it takes that long, there must have been a lot of inter-chambers communication, possibly actual drafts written. And then most of the time when they dig, it's just the one-line order and that's it. Sometimes people write dissents.
Divided Argument
Aide-de-camp
There was one that came out my term. Robertson versus United States ex-Royal Watson, where it was a 5-4. There was a 4-justice dissent, which is interesting, but I'd say that is not the norm.
Divided Argument
Aide-de-camp
So we got to the stage where we've been getting a lot of emails asking for proof of life. It has been a little bit longer than it should have been since our last episode. I don't think we have any one excuse. Decent one. So you were teaching five days a week all semester?
Divided Argument
Aide-de-camp
so forth. And why the bar needs to stand up for the legitimacy of the judges. Yeah. And I like Hannah and I've given comments on that speech and I think it's fine. I don't agree with much of it, but I don't object to it.
Divided Argument
Aide-de-camp
I imagine that's frustrating that whoever was putting work into it. Clearly, if it takes that long, something was happening behind the scenes.
Divided Argument
Aide-de-camp
Shouldn't it be called something else then if it's stuff changes in the world? Doesn't it improvidently suggest – dismissed as improvidently granted, doesn't it suggest shouldn't have been granted in the first place? Shouldn't there be some disposition that's like, yes, it should have been granted, but stuff changed and now –
Divided Argument
Aide-de-camp
Steve Ladek talked about something I think is important and interesting, basically all the ways in which Congress and the presidency have tools to push back on the court and how they have exercised that power
Divided Argument
Aide-de-camp
If anybody takes words seriously, it should be the Supreme Court of the United States.
Divided Argument
Aide-de-camp
And then we have some shadow docket-y opinions. Kind of some interesting stuff on here. I don't know if any of these were ones you were interested in talking about.
Divided Argument
Aide-de-camp
in various ways over the courts of American history and that there's a bit more of a dialogue between the political branches and the courts in the Supreme Court in particular than some simplistic conception suggests. I thought that was – his remarks were great. And then Judge Jones kind of took things a little bit off the rails, I would say.
Divided Argument
Aide-de-camp
Yeah, he says, I'm concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions.
Divided Argument
Aide-de-camp
While it was important that federal courts heed the limits of their constitutional authority, it was equally important that they carry out their virtually unflagging obligation to exercise the jurisdiction given them.
Divided Argument
Aide-de-camp
Yeah, and Justice Alito seems to be leading the charge. I mean, I guess my intuition is that somebody should be able to have standing to sue for this. I mean, if the claim is that we will not know that this is happening and that's bad, saying only people who know that this is happening can sue doesn't work.
Divided Argument
Aide-de-camp
Yeah. That's fair, although it seemed like part of the problem in Clapper was just that anyone in the world could potentially sue, depending on how far the reasoning goes.
Divided Argument
Aide-de-camp
and you know went on a tirade about how steve's criticism of single judge divisions in federal courts basically steve has criticized these practices because they enable litigants to judge shop right they can file lawsuits in certain divisions in certain judicial districts and know for certain who the judge is going to be and he has argued that this is problematic i agree that it is problematic i think a
Divided Argument
Aide-de-camp
Yeah. Yeah. Yeah. I would be curious to see the court resolve those cases. I mean, again, I actually do think that those are more plausible claims than the one that was being advanced in Scrimetti. Also tend to think that, you know, just, this is not really part of the show's jurisdiction. I tend to think that more politically palatable, right?
Divided Argument
Aide-de-camp
I don't think that, you know, California has taken the position that, you know, these kinds of policies exist. are good. We know better than the parents. I don't think that's good politics, at least at the national level.
Divided Argument
Aide-de-camp
I think saying, we're the government and we know better than you how to raise your children, even if sometimes that's true, but I'm not sure that politically that's a great strategy for the Dems. I don't really know anything about political strategy, but I trust you.
Divided Argument
Aide-de-camp
Yeah. And there is a pending due process claim in Scrimeti. It's just not one that was reached below. It's not one that's before the court. I tend to also think that's a heavier lift because the court has said in the past you don't have a substantive due process right to those kind of medical decisions generally.
Divided Argument
Aide-de-camp
Well, the children are not the defendants in this case. Do you understand?
Divided Argument
Aide-de-camp
I mean, I do think that, I don't know. I think there is a substantive due process right to have a school, send your kid to a school in the language of instruction of your choosing. What else have we got in terms of parents' substantive due process rights?
Divided Argument
Aide-de-camp
Yeah, although there is a subtle difference between the right to have information and the right to not have the government kind of obstruct your access to that information.
Divided Argument
Aide-de-camp
No, but it's requiring people, you know, I think these rules, at least the one in California is tries to override the decisions of local school officials. Right. Like you cannot share this information.
Divided Argument
Aide-de-camp
I want to think about that more. I don't want to freelance on that one. I guess there's a good answer in response to that. Yeah, okay. Okay. Did you see Roberson versus Texas?
Divided Argument
Aide-de-camp
It's the statement of Justice Sotomayor about respecting the denial of an application for stay of execution and a cert petition for this Capitol prisoner in Texas, Leslie Roberson, who has been convicted of capital murder for supposedly murdering his chronically ill infant daughter.
Divided Argument
Aide-de-camp
In the years since his conviction, many, many people have come to believe that he's innocent and that this rests on extremely shoddy science. There's a spate of these kind of shaken baby cases where experts came in and said this baby was clearly shaken and murdered, and that we now believe that it was just not credible and that these were not homicides at all.
Divided Argument
Aide-de-camp
These were just children that died of other causes. There's a lot of reason to think that this is one such case. Texas has thus far been totally unwilling to reconsider this guy's conviction. And so he filed an application for stay and a cert petition. Justice Sotomayor spends a lot of time talking about the facts and how troubling they are and then says, well, here's the problem.
Divided Argument
Aide-de-camp
There's no federal claim here. And then she says, under these circumstances, a stay permitting examination of Robertson's credible claims of actual innocence is imperative. Yet this court is unable to grant it. That means only one avenue for relief remains open, an executive reprieve. In Texas, blah, blah, blah, blah, blah. Basically, she uses this.
Divided Argument
Aide-de-camp
Judge Jones kind of whipped out this file folder. She said, I have these tweets here printed out. I assume her law clerks printed them out and accused Steve for that criticism of causing Judge Kaczmarek, who's one of the judges for whom this technique has been leveraged, accused Steve of causing him to receive death threats. And it just kind of – it was very –
Divided Argument
Aide-de-camp
She says, an executive reprieve of 30 days will provide the Texas Board of Pardons and Parole's with an opportunity to reconsider the evidence for Eberson's actual innocence that could prevent a miscarriage of justice from occurring, executing a man who has raised credible evidence of actual innocence. So it was interesting. I mean, I kind of agree with a lot of her concerns here.
Divided Argument
Aide-de-camp
It was an interesting use of the statement respecting denial to sort of say, yes, you know, I agree there's nothing we can do here. Like there's, there's no federal claim here that, that makes sense. And yet I'm going to tell the executive, you know, please take a look at this.
Divided Argument
Aide-de-camp
So I think it is conceivable maybe there would be an actual innocence claim. The court has never resolved whether there are freestanding actual innocence claims.
Divided Argument
Aide-de-camp
I think that here, she tells us his only federal challenge was to the Texas Court of Criminal Appeals practice of issuing boilerplate opinions, dismissing subsequent habeas petitions for purported failure to apply Texas's procedural requirements in habeas cases. So he may have been able to come up with a better – Federal claim, maybe a freestanding actual innocence claim.
Divided Argument
Aide-de-camp
The court has never said those are available. The court has never conclusively said they're not available. Probably this court would say they're not available if it had to decide the issue. But here, it seems like he did not even make that argument.
Divided Argument
Aide-de-camp
Because it's post-conviction relief and you can't bring... Yeah, no underlying right to counsel, right? You have no right to counsel, not even just whether it's post-conviction, you have no right to counsel in cert proceedings generally. But he also didn't bring one below. Yeah, but also it's post-conviction, so that wouldn't work. Yeah, okay. So it's doubly, doubly. Yeah, I don't know.
Divided Argument
Aide-de-camp
It's not a good situation. And I think that the executive reprieve seems highly unlikely based on what I know about Texas.
Divided Argument
Aide-de-camp
Okay, I guess we're fast running out of any prospect of talking about Glossop. Maybe we'll record again soon to talk about that one. Any of the other ones? You mentioned briefly the other parent case, Boston Parent Coalition for Academic Excellence, CORP, the school committee.
Divided Argument
Aide-de-camp
Was that because you were thinking about saying something about that one or just because you were misreading the – It was just because I got my schools confused.
Divided Argument
Aide-de-camp
Yeah, which is something the court has previously – declined to weigh in on coming out of Thomas Jefferson. I think we probably talked about this one on the show last season.
Divided Argument
Aide-de-camp
fiery and it was an awkward situation to be in. The thrust of her comments were basically trying to paint him as hypocritical for not sufficiently criticizing, you know, forum shopping when practiced by left-leaning litigants. Although he has examples of how people have been concerned about this in ways that don't track ideology, you know, the in patent cases and so forth.
Divided Argument
Aide-de-camp
So this came up. I don't know if you have encountered this issue. There are people that have been... convicted under old sodomy laws, but they were convicted of stuff that was unquestionably not constitutionally protected. They were convicted of the sodomy law, but of a sex act involving a child. But at trial, all that needed to be proven was just the mere fact of the sodomy violation.
Divided Argument
Aide-de-camp
And those people have raised claims based on Lawrence, right? And those claims, I think, have pretty uniformly been rejected, at least the ones that I've seen. And so in that situation, I mean, does your view suggest that the government has to prove something like this is the other person is not a consenting adult or something?
Divided Argument
Aide-de-camp
And you think that should be the government's burden? I mean, what if it's a statute that we think is – not the sodomy statute, let's change it – but a statute that we do think is constitutional in 95% of its applications? Or 99%. But there's a small sliver of people for whom it's unconstitutional.
Divided Argument
Aide-de-camp
You think that it's always the government's burden to show that this person is not in that small sliver of people.
Divided Argument
Aide-de-camp
But in your view, isn't the point that Congress actually had to make a statute –
Divided Argument
Aide-de-camp
The point is that the problem is that the statute is beyond Congress's power because Congress has tried to regulate something. It doesn't have authority over that. Maybe there's other statutes that would be appropriate. Like it seems like you have to look at the law and say, is this law a valid regulation of commerce?
Divided Argument
Aide-de-camp
It was really not a fun experience. I had to figure it out in real time. What I was going to say, I ended up just saying, look, something to the effect of we should be debating these ideas on the merits and not just trying to paint people on the other side as hypocrites. That's really missing the point.
Divided Argument
Aide-de-camp
Yeah, although it's kind of weird, though, to say that if the law is just possession of a gun, even if you could imagine some hypothetical different law that was like possession of a gun within 3,000 feet of a federal building, right? And you're like, well, the person was within 3,000 feet of a federal building, and so Congress maybe could have regulated that.
Divided Argument
Aide-de-camp
I still think it's a little weird to just say prosecutors can choose to make up elements that would make a regulation of commerce by Congress constitutional rather than having Congress have to do it in the statute. I don't know.
Divided Argument
Aide-de-camp
Okay. Well, we were going to talk some about Glossop. I had prepped that one a long time ago to talk about. It will remain prepped-ish, maybe to talk about on a future episode, because my expiration date is arriving soon.
Divided Argument
Aide-de-camp
No, no. I actually forgotten. I didn't even mention it before because I forgot we were going to talk about it. I will say it is the first real merits opinion by Justice Jackson. Case argued in October. So it got out very, very quickly. Unanimous. It's a ruling against the petitioner who is an immigrant who is trying to
Divided Argument
Aide-de-camp
to challenge a determination that he is not going to get a visa because he was found to have previously been involved in a sham marriage for immigration reasons. And it's just a debate about, is this the kind of discretionary decision that the Secretary of Homeland Security gets to make that is not reviewable? Or is it the kind of decision that's non-discretionary that is reviewable?
Divided Argument
Aide-de-camp
In fact, the whole thrust of my earlier comments had been we should try to be able to talk about these issues on the merits, regardless of the fact that there's always going to be partisan stakes to them. And so, I don't know, you watched from home, I believe. What was your reaction?
Divided Argument
Aide-de-camp
Now, everybody seems to agree that This decision could be reviewable. The substance of the decision could be reviewable later if he files a different petition. And so it's sort of a question about whether it's reviewable now. It was one of these cases, listening to the argument and reading the opinion, where sometimes you kind of just think, is this the best way to do things?
Divided Argument
Aide-de-camp
Couldn't we just have someone... A lot of energy has been put into deciding this question of... Yeah.
Divided Argument
Aide-de-camp
I mean, like sometimes I wonder, and this is something I'll probably come back to with some other cases that I listened to is, you know, sometimes I think that the way to decide these kinds of disputes is not kind of backwards looking legal interpretation, but maybe it would be better if like there was like a court of Congress that could just say, okay, here's the stakes, policy stakes.
Divided Argument
Aide-de-camp
We understand why there's this like confusing gap in the law right now. Let's just give you the answer. Yeah, could be. Yeah, I don't think I'm going to say anything more about it. Did you have anything to say about it? No, that's fine. I thought it was fine. Unanimous. Listening to the argument, I wasn't sure it was going to be a quickie unanimous decision.
Divided Argument
Aide-de-camp
I thought that the petitioner's counsel did a good job trying hard to cast this decision as a non-discretionary decision that would be subject to review, but I guess the court was not persuaded and decided to just get this one done quickly.
Divided Argument
Aide-de-camp
Thanks very much for listening and thank you for bearing with us on the long delay since our last episode. Please, as always, rate and review the show on the Apple Podcast app or wherever else you get your podcasts. Visit our website at dividedargument.com where we post transcripts of the episodes fairly soon after they come out. Go to store.dividedargument.com for t-shirts and other merchandise.
Divided Argument
Aide-de-camp
You can send us an email, pod at dividedargument.com, and you can leave us a voicemail, 314-649-3790.
Divided Argument
Aide-de-camp
And if there is an equally long delay between this and our next episode, We will not have any good excuse other than if we're dead or under arrest or Will has been seized by the new administration as a disloyal usurper.
Divided Argument
Aide-de-camp
That's something like... Like a real job. Yeah. For non-law professors out there, that's quite unusual. The idea that a law professor would do their job, not just one or two, but five days out of the week is pretty extraordinary. I assume that means you don't have to teach much for the rest of the year, though. I've got some seminars, but yeah, that was my heaviest lifting for a while. Okay. Yeah.
Divided Argument
Aide-de-camp
And then criticizing him for some stuff that happened before he was a judge, you know, with there was this attempt to kind of like take his name off an article he had supposedly co-written.
Divided Argument
Aide-de-camp
I find plausible, but also I find less likely than the real story, which is that he had been the author and was trying to – I don't know. I mean, not the real story, but then the alternative explanation.
Divided Argument
Aide-de-camp
I mean, but to the extent that the criticism is about – he's being criticized for where he's devoting his efforts. I mean, also, didn't that happen before all of us were born? Yeah, right.
Divided Argument
Aide-de-camp
I had my heavier teaching this fall. Other stuff, I don't know. You got your wisdom teeth out, apparently, decades later than the rest of us.
Divided Argument
Aide-de-camp
And you can believe that judge shopping is bad without saying anyone is corrupt or anything like that, right? Right. I mean, it's just... And without... saying something that you know calls the you know threatens legitimacy of the judiciary like it's just acknowledge i mean we can all acknowledge that different judges have different views and approach cases differently.
Divided Argument
Aide-de-camp
Yeah, well, you know, you're just unusually wise. You've been holding onto that wisdom for longer, possibly. I had an extra wisdom tooth. I had five. But you didn't keep it, so you lost the wisdom. Yeah, no, and I lost it early. That's the fun fact about me for today's episode. Any other excuses?
Divided Argument
Aide-de-camp
What do you mean by coincidence? I mean, it's not like they're randomly choosing the outcomes. It's just they have more conservative judicial philosophies, right? Right.
Divided Argument
Aide-de-camp
Yeah. The point is that if you have a system with lots of judges, there's going to be outliers, and a system that enables litigants to, even without any particular connections to the forum, just to pick those judges, I think is bad.
Divided Argument
Aide-de-camp
Yeah. I just thought that was what we had all settled on. As an originalist, I thought you'd go with the kind of older school pronunciation. I should not know what the older school one is.
Divided Argument
Aide-de-camp
Yeah, I guess I share some of your reaction that like, part of what bothered me about it was the kind of intellectual and seriousness of the arguments and the criticism. And I thought that, you know, I am very biased in the debate, but I really did think that if anything, it proved the, both the points Steve and I were making, like at least certainly didn't detract from them.
Divided Argument
Aide-de-camp
And I don't really understand the position being advanced. The position is that, is that what you can't criticize the public can't criticize the way the judiciary is structured. Like,
Divided Argument
Aide-de-camp
I was trying to kind of encapsulate the argument, and I am struggling to come up with the principle that it's going to lead – if you say that, gosh, this system is bad because it enables judge shopping, that necessarily leads to death threats, and so we can't make those arguments. I really don't understand the argument. Yeah.
Divided Argument
Aide-de-camp
So I was on this Federalist Society panel at the National Lawyers Convention, which I went to. Where were you, by the way? Teaching. Teaching. Okay. I thought like, what is the world coming to when I go to the Federal Society National Lawyers Convention and you don't bother? Have they taken your card away or something?
Divided Argument
Aide-de-camp
Yeah, there could be, but it's, if it's going to, you know, if you're going to make that accusation, you know, you should really back it up.
Divided Argument
Aide-de-camp
I mean, it could be. I mean, but it could be. I mean, if no... Media organization reported on what the courts were doing. Nobody would know who the judges were. I mean, I just don't know where you possibly are supposed to draw that line. I mean, your colleague, Adam Mortara, was tweeting about this a bunch.
Divided Argument
Aide-de-camp
And I struggled to kind of figure out, you know, he was very supportive of Judge Jones and he's been very critical of Steve and has, you know, kind of Trumpian, you know, derisive nicknames for him.
Divided Argument
Separation-of-Powers Police
Yeah. Did I mention that he was like super sexually depraved?
Divided Argument
Separation-of-Powers Police
Yeah. Which is fine. So a complicated guy. But that's not what we're here to talk about today. We are doing something somewhat unusual.
Divided Argument
Separation-of-Powers Police
So could we just – there's some pieces of this that I think I'm particularly excited to help our listeners understand because I think one of the really important things about this book is the way in which it shows that some of the debates we've been having are maybe in constitutional law are either kind of irrelevant or besides the point or at least – Perhaps that'd be phenomenal.
Divided Argument
Separation-of-Powers Police
And so, you know, question one as part of that is, you know, constitutional law has been obsessed for decades with these normative questions about, you know, how should we interpret the constitution? And yet it hasn't been asking for the most part, and this is one of the central contributions you've made, the kind of positive question, right? You know, about why is this possible at all?
Divided Argument
Separation-of-Powers Police
I mean, why do you think that those questions haven't been asked? Why do you think that, and particularly the ratio has been so focused on this normative question about interpretive theory and stuff like what Will wants to persuade us of about originalism and all the other possible answers to that question?
Divided Argument
Separation-of-Powers Police
For those of you familiar with the format of the show, we're not primarily a guest show, but we do have a guest today, Daryl Levinson, who is the David Boies Professor of Law at NYU School of Law and my former constitutional law professor when he was teaching at Harvard. And we've asked him to come on the show to talk about his recent book of constitutional theory,
Divided Argument
Separation-of-Powers Police
Do you have a response, Will, as someone who continues to be very invested in the kind of normative debate about how to interpret the Constitution?
Divided Argument
Separation-of-Powers Police
One of the most important books of constitutional theory published in quite some time called Law for Leviathan, Constitutional Law, International Law, and the State. So, Daryl, thanks for joining us.
Divided Argument
Separation-of-Powers Police
I think you were the first former professor of mine to be on the podcast, unless I'm forgetting somebody. I think Will kind of thinks of himself as my professor, but I try to push back on that. So this is really exciting and fun for me. for me.
Divided Argument
Separation-of-Powers Police
Also, a great serving court hook for our listeners, you are now a noted Second Amendment expert, because as we mentioned on the show several episodes ago, your article, Collective Sanctions, was relied upon by the court in the Rahimi case. Were you surprised to see that?
Divided Argument
Separation-of-Powers Police
If I can offer a side note, because you put the general law point on the table, I thought that was kind of interesting.
Divided Argument
Separation-of-Powers Police
as a set of ideas that people like Will and Steve have put forward and that I've piggybacked on a little bit, which in some ways maybe shows that originalists like Will are actually a more receptive audience for these kind of insights, to the extent that those arguments are kind of showing that things that we have treated as just kind of ordinary constitutional law now or maybe actually would have been thought of as more like international law.
Divided Argument
Separation-of-Powers Police
Is that a fair description of that kind of move, Will? Yes, this is trapped. And does it suggest a greater receptivity to the move Daryl's book is making?
Divided Argument
Separation-of-Powers Police
Yeah. So two decades later, apparently that article was relevant to figuring out whether domestic abusers can have guns. Yeah. So I thought maybe you might just tell our listeners the general thrust of the book. Obviously, it's a really big and important book, and there's more than can be summarized in a pithy few minutes.
Divided Argument
Separation-of-Powers Police
So can I put another topic on the table to try to continue to flag things that I think are of particular interest to Supreme Court nerds? One of the biggest themes from the book that I find interesting and to shape the way I think is kind of your discussion of power and how that maps on to the structural constitution. And we –
Divided Argument
Separation-of-Powers Police
on this podcast, you know, have read a lot of and talked about a lot of kind of big separation of powers cases. And there's this concern about aggrandizement as the executive branch taking power away from other branches.
Divided Argument
Separation-of-Powers Police
And I think one lesson from your book is that that's kind of a dumb way to think about it because, you know, in terms of figuring out where power actually lies, just the surface level of kind of like looking at how, constitutional decisions allocate power among the branches misses the point. Would you kind of flesh that argument out for our listeners a little bit and we can talk about it?
Divided Argument
Separation-of-Powers Police
But maybe we can just get that out, and then Will and I will engage you in conversation about it. But we think it's a book that I think it would be great for our listeners who are interested in constitutional law, questions like separation of powers, to know about. And it is the kind of book that I think would really change the way people think about some of these things who are not familiar.
Divided Argument
Separation-of-Powers Police
Does that suggest, though, that assumptions about which groups are likely to control institutions is really driving a lot of the push behind different interpretations of separation of powers? I mean, that's one. The cynical explanation for the conservative push on dialing back the administrative state is precisely this.
Divided Argument
Separation-of-Powers Police
The belief that the federal judiciary is likely to be more conservative for the foreseeable future and administrative agencies are going to be more dominated by Democrats and people sympathetic to the Democratic agenda. I mean, does that suggest that that's really kind of at bottom the only real stakes of those kinds of cases?
Divided Argument
Separation-of-Powers Police
So, Will, we have had perhaps an unpredictably long gap, or maybe a predictably long gap since our last episode. It's been more than a month. Some things have happened. We've had some interesting stories about behind-the-scenes stuff at the court. We are not going to get into any of that today. We'll save that for a more regular episode. We've got something cool.
Divided Argument
Separation-of-Powers Police
Can we make any kind of assumptions or none? I mean, so one, you could say having an executive that has all power might be bad. But you could also just say, well, actually, even if that's true on paper, that executive could be totally boxed in by different political interest groups moving behind the scenes, kind of controlling his behavior.
Divided Argument
Separation-of-Powers Police
And you could have a system that has lots of formal separation of powers, but it turns out that all the political interests behind the scenes are actually controlling all the levers of power. Or could we say, well, maybe in some general sense, having more divisions will maybe make certain outcomes less likely, or are you not even willing to go that far?
Divided Argument
Separation-of-Powers Police
Also, Will can respond to that, but also like arrangements that formally look the same at two different times can work really well at one time and very badly at another time, depending on how underlying the societal power divisions change, right?
Divided Argument
Separation-of-Powers Police
Maybe the original structure worked okay in the sense that there was a very close balance of power between slave states and free states, for better or for worse. But then that division doesn't really track what our political divisions are now.
Divided Argument
Separation-of-Powers Police
And so just saying, well, let's stick to exactly as much power as states had 200 years ago, maybe that works quite differently based on how society has changed.
Divided Argument
Separation-of-Powers Police
So I think you might resist answering this question, but what would you think really internalizing these insights? Let's say we send copies of this book to one First Street, so nine copies. Every justice reads it and totally is persuaded. What should that change about how they approach their jobs? Maybe we have to put aside questions about interpretive method.
Divided Argument
Separation-of-Powers Police
Should it lead them to just say these separation of powers cases are dumb and we should just stop worrying about them or something else?
Divided Argument
Separation-of-Powers Police
Yeah, I mean, you could imagine some, you know, justice saying, well, we've been focusing on the wrong questions and separation of power. So I'm going to start doing a kind of power divisions in society analysis. And I'll, you know, vote for separation of powers when I think that this tracks, you know, underlying divisions and power dynamics in society. And I won't otherwise.
Divided Argument
Separation-of-Powers Police
Now, that seems really hard. It seems basically, you know, not at all consistent with what, you know, judges are normally able to do. And I guess that really gets at a related point, which is why are these the kinds of questions that constitutional lawyers and constitutional theorists don't usually ask? It's hard, right?
Divided Argument
Separation-of-Powers Police
It's really easy to look at the document and say, oh, the court's decision gives the president extra power. It's much harder to engage in the process of actually looking at the structure of the government and then saying, okay, now let's actually do the political science work and figure out who are the key decision makers behind the scenes that actually are shaping these institutions.
Divided Argument
Separation-of-Powers Police
I mean, it just feels like something that lawyers are not at all trained to do. And maybe that's why we haven't been asking those questions at all.
Divided Argument
Separation-of-Powers Police
So like a kind of originalist lawyer who teaches at the University of Chicago.
Divided Argument
Separation-of-Powers Police
The point about legal polarization, I think, is actually quite interesting. It's one that I've thought about a lot in connection with debates about Supreme Court reform, which is maybe you could say one reason that there was a certain amount of settlement about the power of the Supreme Court was in part the fact that
Divided Argument
Separation-of-Powers Police
the preferences of the justices did not systematically track the preferences of the key divisions in politics, right? The culture of lawyers led them to have a mix of maybe culturally elite views, but ones that didn't consistently map onto the views of one political party, right? Justice Kennedy and Justice O'Connor and things like that.
Divided Argument
Separation-of-Powers Police
And, you know, it strikes me as one thing that's really putting a lot of pressure on the system now is the way in which Will and his friends have helped create the rise of this highly polarized legal culture where lawyer views track political views. I know, Will, that's not new, but... We didn't start it. And that maybe is...
Divided Argument
Separation-of-Powers Police
Leading to some of the breakdown that we're seeing and maybe, you know, might lead to more of what we're seeing in terms of people, political actors starting to really push back on the court and being willing to say, you know, let's put forward a court packing proposal.
Divided Argument
Separation-of-Powers Police
Let's, you know, I talk to Senate staffs all the time who are putting together all sorts of proposals to radically change the court as an institution in ways that I think would have been totally unthinkable a decade ago.
Divided Argument
Separation-of-Powers Police
And then, of course, we did want to end by asking you how your book informs what we should think about the court standard for granting an injunction pending appeal under the All Writs Act when we're dealing with shadow DACA cases, because I think there's a pretty clear takeaway there, right?
Divided Argument
Separation-of-Powers Police
is saying people shouldn't care about qualified immunity. So you did 50% on that.
Divided Argument
Separation-of-Powers Police
So did Will, over the course of this hour or so, did he move the needle on originalism for you at all? Or has he been unsuccessful? He tried about three or four times.
Divided Argument
Separation-of-Powers Police
I thought just asking Justice Kennedy what he thought was also a pretty good settlement device, but a lot of the rest of the people in the country didn't seem to agree with that.
Divided Argument
Separation-of-Powers Police
always the problem with law. All right. Well, that is a good conversation. Well, we will encourage our listeners to buy the book, Law for Leviathan, Constitutional Law, International Law, and the State from Oxford University Press. I would like to say it is available everywhere books are sold. I think that might not be fully accurate, but it is available online at Amazon and similar sources.
Divided Argument
Separation-of-Powers Police
And it is priced not as a library edition, so it's priced so that people like you and me can buy it. So I strongly encourage everyone to to read it. It will really change the way you think about constitutional law and maybe show that a lot of the things that you thought were important are frankly kind of dumb or epiphenomenal or irrelevant to maybe what really matters in the world. Thank you.
Divided Argument
Separation-of-Powers Police
Thanks very much for listening. If you like the show, please rate and review on the Apple Podcast Store or anywhere else you find your podcasts. And please share the show with anyone else who might be interested in it.
Divided Argument
Separation-of-Powers Police
Your professors, students, friends, coworkers, children, and basically anyone else who is interested in hearing two people talk about boring Supreme Court details for lengthy sessions. Check out our website, dividedargument.com. We have transcripts of the episodes posted.
Divided Argument
Separation-of-Powers Police
fairly soon after the episodes go up stored at divided argument.com for merchandise you can send us an email pod at divided argument.com if you want to give us a hard time about not giving benjamin franklin his due or you can leave us a voicemail 314-649-3790 thanks to the constitutional law institute for sponsoring all of our endeavors thanks to daryl for agreeing to come on the show and please keep listening
Divided Argument
Separation-of-Powers Police
I just did want to get some clarification out before we dive in, which is the reason for our delay is not shame for not giving sufficient credit to Benjamin Franklin on the last episode. I think I may have suggested, you know, you were praising him and we talked about, you know, Thomas Jefferson as an inventor. And we got multiple emails from Ted Frank and Dan Simon about that.
Divided Argument
Separation-of-Powers Police
Well, can I just ask a clarification on that question? I mean, I assume the people you're talking about are people that are skeptical about the idea of constitutional laws and enterprise practice by judges, right? They're not necessarily people that are skeptical of the idea that we have constitution that creates different institutions, right? That creates three branches and so forth.
Divided Argument
Separation-of-Powers Police
Yeah. And Daryl, a question for you. I mean, I. I do think your book maybe has something to say to both in the sense that I take the book as not saying none of these things are possible.
Divided Argument
Separation-of-Powers Police
You're saying that there are kinds of arrangements that are possible and you can take different views about them, but there are kind of accounts by which different groups in society come to agree on constitutional provisions as kind of coordinating rules and so forth, right? Yeah. That's right.
Divided Argument
Separation-of-Powers Police
Ben Franklin's inventions, the full extent of which I was not familiar.
Divided Argument
Separation-of-Powers Police
Lightning rod, bifocals, daylight savings time, the Franklin stove, reaching device, I don't know what that is, some kind of musical instrument popular enough in the late 18th century that Mozart and Beethoven composed for it, improvements to urinary catheters and odometers, arguably the first American political cartoon, swim fins.
Divided Argument
Separation-of-Powers Police
Okay. All right. Well, you didn't tell me you didn't list those things.