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
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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.
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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.
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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?
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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.
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You think that it's always the government's burden to show that this person is not in that small sliver of people.
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But in your view, isn't the point that Congress actually had to make a statute –
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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?
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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.
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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.
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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.
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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.
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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
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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?
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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?
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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?
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Couldn't we just have someone... A lot of energy has been put into deciding this question of... Yeah.
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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.
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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.
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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.
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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.
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You can send us an email, pod at dividedargument.com, and you can leave us a voicemail, 314-649-3790.
Divided Argument
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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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.
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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,
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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.
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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?
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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.
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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.
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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.
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Yeah. And let's – for those people who are not steeped in EDPA, let's just remind people why it matters, right?
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Because in this posture, when someone who is imprisoned pursuant to a state conviction is seeking federal habeas relief and they're trying to bring a claim based on a federal constitutional issue that was adjudicated by the state court, it's not enough to show that the state court got it wrong. They have to show that the state court
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made an error of clearly established federal law as determined by the Supreme Court. Here, the court not only has to say the – it was wrong for the – so the Tenth Circuit said there's no clearly established law on this question. The court is saying, no, there was not just law but clearly established law establishing
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this due process remedy without concluding that it – that remedy is clearly available here or that this test is satisfied here.
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I did. But I got to say, the opinions are a little short. I didn't totally know what was going on. All right.
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Or a small pile, right? I mean it's still open – they're still open for argument below about how much of it was actually relevant, necessary and so forth. But I'm just trying to figure out exactly what's going on here. So the court seems to be saying that whether something is holding or not for purposes of EDPA – is an independent question of federal law on which state courts don't get deference?
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So in a federal habeas case, the federal habeas court is supposed to independently determine was something a holding or not. Yes. And then having done so, then we have to look at what the state court did and say, did the state court reasonably or unreasonably apply that holding? Yes. And what did the holding clearly establish? Yeah. Does that – Does that make sense to you? I mean – OK.
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It doesn't to me either because it seems like if there is a situation where there's a Supreme Court decision and it is unclear whether something it said is a holding or dicta, it would seem to me that it would be – A court would – a state court would not be unreasonable in saying it was dicta, right?
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And yet EDPA does not impose deference on that judgment as I understand the law after this opinion. Yes. Which I think was not clear before, right? This is a summary – Summary vacature, I guess, not a true reversal. That is arguably making new law on habeas?
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Yeah. Yeah. And who gets to decide? Yes. Yeah. Okay. Okay. A lot of questions here. One, who do we think wrote this? This is per curiam. Uh-huh. And – I still just don't understand. Why do we have this rule? Why are summary opinions per curiam? Why don't they just tell us? Who wrote them? Yeah. Why do we have this rule? Why is it argued opinions get a named author and per curiams don't?
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Tradition. Okay, but why? I would want credit if I was writing this.
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I mean sometimes there are cases like that and often those are maybe argued cases, right? But here where a case is just sort of plucked from obscurity, it's presuming because someone on the court found it particularly compelling. Yes. Right? Don't you think in a lot of these kind of summary reversal type cases, someone files a petition and someone on the court,
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you know, gets motivated and says, you know, I think something, this court below got it really wrong, I know it's not, the kind of thing on which we would normally grant cert. It's a little fact bound. It's error correction. But I want to take this for a few weeks, try to write an opinion, see if I can get everybody on board.
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But right now, is that is that happen at the same time? They changed the name from Judicial Crisis Network to Judicial Confirmation Network. You're familiar with that organization?
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And do you understand the way the docker works? So it seems to be getting both relisted and rescheduled. Yeah. It's getting distributed, then rescheduled, distributed, then rescheduled. This is spring of 2024. Yeah. What's going on when that happens? Sometimes you just see relist, relist, relist, relist. This is relist, reschedule, which are not the same thing, right?
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But it seemed like it plausibly could have been. Sure. But I really don't know. I mean, did you have a – nothing in the opinion really set off my radar in terms of recognizing someone's distinctive style. Yeah.
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Is there some reason to think that or are they just saying, well, this is a case about a woman and therefore she would have been concerned about the gender angle or something like that? Is that really the – I think it's that.
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Do you buy that theory or – if I said – tell me who you think it is. We know it's not Justice Alito because he concurs in the judgment and sort of says, well, I'm – go along. But basically he's trying to say, I don't think this person should win below. I agree that this principle is established. Yeah.
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OK. Just to mix it up or do you have – do you have some basis for that or are you just trying to be provocative?
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Just moving him. Don't you think he'd want credit for that, for showing maybe he cares about these issues? Maybe. Okay. Maybe he left a tell. Yeah. So I tried to get – Did you read the first letter of each paragraph? I didn't. I did – the other day I tried to get – Claude.ai, you used that one.
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I think you're deeper into generative AI than people might have assumed because you're not always the tech-savviest member of this podcast. But you've got a couple of subscriptions, right?
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Yeah, I tried to get Claude to analyze Procurium to tell me. who wrote it, and it refused. It seemed to violate its ethical principles. Yeah, I really don't know why. He said it would be improper for it to speculate. I'm sure there's a way I could have kind of negotiated with it to trick it into doing that, but I just, I don't have the time. I got to try this. I'll try this and we'll update it.
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I'm sure someone can get one of the AIs to do that. Maybe – is it DeepSeek, the new Chinese AI that just got released that's screwing up the US stock market? Maybe it can do that. Or maybe we can get Adam Yudkowsky. Supreme Court litigator and sub-stacker who we've mentioned a few times who's often sub-stacking. Is that a verb? About the use of generative AI in Supreme Court. His view is that –
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I think we should get rid of the justices and just have Claude write the opinions.
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Did they test whether there was any kind of liberal or conservative skew to the output of the AI in this experiment?
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They don't really – judges don't seem to want us to study them, right? They're very turf protective. Well, that's unfortunate. OK. Anything else to say about this one? Anything else to say about kind of – Shadow docket stuff, news. Obviously, there's a lot happening right now. How long has the Trump administration been in place?
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Is that going to destroy universities possibly? It depends on how long it lasts. Is our – Is our podcast funded by grants from the federal government in any way? Okay. That's relief. We don't have to shut off the podcast.
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I'll let you know. Well, we can just switch to a kind of lower tech format. We'll just record on iPhones and we won't edit. What I've always wanted.
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So what's your over-under on the date that that reaches the Supreme Court?
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That's quite soon. That's less than a month. Okay. Fairly. All right. Well, I'm not going to – I'm not betting you're doing it this time. Yeah. I'm not going to take either side of that bet. I'm mostly just curious.
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But if it goes on that timeline, could you imagine a scenario where the court plucks this one from the shadow docket, sets it for argument in April and actually decides this constitutional question this term? Is that crazy to imagine that happening? Yeah.
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Yeah. Maybe there wouldn't be the urgency to do it this term in the same way that there was with, say, the TikTok case where they really needed to be resolved before the law went into effect.
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But the court could grant some interim relief getting rid of the injunction without making clear its position on the merits, right? Yeah. Yeah. Okay. By the way, TikTok, where does that stand now? It's a little confusing, right? So you can't download the app anymore. If you deleted the app – Can you not download it? The app stores, as I understand it, are not letting new people download it.
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But TikTok still functions for those people who still have the app because of this kind of ongoing uncertainty about what's going to happen. Right.
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Could you have been disbarred for that? If you had basically misrepresented what you knew to be – So I had a backup plan. OK. OK.
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Yeah, because some of these states have these rules that if you're a recognized church officiant, you can solemnize a wedding. But these kind of other mail order churches cannot. Yeah.
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Well, that was an interesting detour. Well, we've been going – we had two cases we wanted to talk about. We've been going on a little bit longer than perhaps we should have. So is it time to bring our special guest to the podium? All right. So our special guest today is I think the newest addition to the Stanford Law Faculty, Oren Kerr, who joined in – 27 days ago. So Oren is coming to the podium.
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He's about to sit down and get his own microphone. So Oren, you've been a long time listener and supporter of the show. OREN WELCHEY- I have. Thank you for being with us. And thank you for showing up. I'd say there's 40 or 50 of the Stanford faculty in attendance right now. But we had to pluck Oren from the crowd, the throng. So thanks for being with us.
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So we've got a few things we want to talk with you about. So one is a theme that you've reiterated a lot on blogging and on Twitter, which is the – overall the kind of – the fact that Fourth Amendment cases have largely disappeared from the Supreme Court's docket. We do have one. Fourth Amendment-ish case to talk about with you. But the court sort of – was it maybe five years ago, six years ago?
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So what do you think? Do you think we're finally going to get resolution of this issue in this next administration if the political valence of nationwide injunctions is about to change?
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Kind of stopped taking kind of core Fourth Amendment cases. Is this a search? Is this a let's apply the CATS test type cases? And you've speculated about this a little bit. I think we've talked about your speculation on the show, but now we get to talk with you about it directly. So why do you think that is going on?
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I'm Will Vode. And I'm Dan Epps. So, Will, this is our first live show in a little while. We're here. Where are we? We're in California. California. We're at Stanford Law School at a live show sponsored by an institution that you used to be a participant in. Say more.
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And this is something that you predicted, right? In a case you argued, Davis versus United States. Yeah. So this may be sour grapes.
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Well, they just need to – they're waiting for your book, right? So you just have a book that just came out, which I tried to acquire. It was sold out on Amazon. I don't know if the backlog has cleared up and their new printing is out. But why don't you tell our listeners a little bit about your book?
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All right. Well, we will look forward to seeing that in print. So let's talk about the Fourth Amendment case we do have to talk about. And it's not a – I guess this is not a criminal procedure case because this is a case that comes up in civil suit. But it – is a case that proceeds under the Fourth Amendment. This is a case called Barnes v. Felix.
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The whole thing takes a very short amount of time. Yes. We go from the stop to the driver being dead in just a matter of minutes.
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It did seem like it's a hard question to know exactly what should be relevant to that inquiry. I mean the court has told us in past cases, in these cases where a plaintiff is alleging excessive force under the Fourth Amendment, that you do a totality of the circumstances inquiry. But that doesn't answer the question of which circumstances are relevant.
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And there were lots of things being thrown around. Do you look at the seriousness of the offense? How much time do you look at? Does it matter whether the officer is negligent or not? There was an interesting exchange at the argument where Justice Gorsuch says – You can't look at negligence because that's a subjective mens rea consideration, which is wrong. He said that's an objective test.
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But at least teaching one-off criminal law, negligence is objective, right? As I understood it, not subjective. So I thought that was a little strange.
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I don't know. It's just too hard to write the opinion coming up with the narrow rule.
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But that was also in the backdrop and I thought they didn't quite – Yeah, you've teed up the two other things I wanted to talk to you about. So first, the smaller thing is that question about who decides because at the argument, somebody said this is a legal question for the court, which I guess I had never really thought about.
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And maybe they are relatively rare enough that the court can just review them case by case. They don't mind doing that.
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I sort of knew that these civil cases – I mean if you're lucky, they get to go to the jury. But – I guess it makes sense if Fourth Amendment reasonableness is a legal question, that is a question for the court. And so the jury is just going to decide the factual predicates and then the court combines that with its own judgment about whether those facts lead to a Fourth Amendment violation.
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I bet we have some listeners at home who litigate these cases who might be able to help us with that. Yeah.
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Yeah. So that feeds into my the other thing that you mentioned about qualified immunity. So if as the court tells us, this is kind of a, you know, object. This is this is kind of a fuzzy totality of the circumstances inquiry. Are officers going to always get qualified immunity? Like except in the most extreme cases where an officer, you know, shoots a fleeing shoplifter in the back 20 times.
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But in most other cases, if it's well, it depends on these 12 factors. Isn't that always going to produce qualified immunity where it's not going to be clearly established that the use of force was excessive?
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What do you think, Will? Is it a qualified immunity hawk? Dove? I'm not sure.
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But it does – when you combine those things, good faith and qualified immunity, it does create this problem where the remedial structure makes it really hard for Fourth Amendment law to develop.
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If there's always going to be a rule in whichever context, both in criminal context for exclusionary rule and civil context with qualified immunity, where courts can always just say we don't need to resolve it. I mean it does seem problematic to me.
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That was something I always found puzzling about Justice Scalia because he wrote some pretty impassioned Fourth Amendment opinions in terms of the substance. But then as far as I could tell, not clear to me he thought anyone should ever get a remedy for those violations. Yeah. OK. Anything more to say about that case?
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I came away thinking that there are some really hard fact patterns and I'm not actually sure what the right rule should be. I mean you can – paint hypos in different directions. So one, obviously, if a police officer just jumps in front of a car without any basis for doing so, holding a gun, the officer should not be allowed to just kill the person because, well, the car was about to run me over.
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On the other hand, the respondent in the case sort of said an officer should not lose the right to defend himself just because he made some mistake earlier in the chain. That seemed reasonable to me as well. Right.
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I mean, sometimes it's nice to be able to just get to weigh in case by case and not have to formulate the rule. If they don't mind doing that, then maybe this is the best outcome for them.
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OK, but let's get it. We're going to get a concurrence from Justice Kavanaugh saying, you know, we shouldn't we shouldn't stop. You know, we shouldn't issue doctrine that stops police officer being able to jump on cars. Right. Don't you think he seemed pretty, pretty worried?
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All right. Anything more to say about that case? I think we – I think we're all on the same page based on the way the argument goes – went. It seemed like the respondents had – weren't really even willing to defend the strong version of the moment of the threat doctrine. And so a lot of it did seem to be how do you want to lose? What's a really narrow way we can write this opinion?
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Well, are there any Fourth Amendment cases in the pipeline that they might yet grant that you've been tracking? Is there any prospect that we might get a really meaty Fourth Amendment kind of exclusionary rule case?
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I mean, the thing is, there's all these new technology cases that I know you track that really would be helpful to get the court's guidance on a few more of those cases as those issues become more important every day. Is there anything that you think might come down the pike? I know that There's been various poll camera cases in the lower courts. The court hasn't seemed interested in those.
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Okay. Well, we've got 10 minutes left for questions. So, Oren, maybe you could stick with us. If there's any particularly hard questions, we're going to send them over to you. So, Professor Kerr, if you're enrolled in one of his classes, are you teaching right now? I am. Okay. Okay. then then this is your opportunity to really put him on the spot.
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So if you have a question, you're going to have to come up front. I'm going to hand you a microphone and we're going to we have a multiple microphone set up here. It's a little complicated so that we can record your voice for the podcast. So you are if you ask a question, you are consenting to that. But. No pressure questions. The first one is always the hardest.
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There's always – people are nervous and it turns out that there are some questions in the audience. They're already so scared of you. You've been here for 27 days. Just exams I believe at the school are blind graded, right?
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Yeah, that's a really interesting question. And there's kind of a broader question there, which is how much is this court going to rethink substantive due process? I mean, the other issue that might be on the table is Obergefell, same-sex marriage. I think there is a push in some states to maybe start working towards setting up a challenge in which the court could reconsider that holding as well.
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You know, you know, Will, you and Oren, maybe you have your fingers slightly more on the pulse of the conservative legal establishment. Although I think you're both a little bit on the outs, right? But maybe you can tell me what to predict.
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Yeah, and so unless you've got anything more to say about that one, maybe we should just briefly talk about the change administration and what that might mean for the court. So as always happens, when there's a change in administration, the government flips its position in some of the cases in which the government has already –
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But I remember you took a similar position on Twitter in the immediate wake of Dobbs sort of saying, I don't think they're really going to rethink everything. Am I right that you said that? And if so, do you still feel that way?
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Yeah, although some of those social issues, I mean, Those could be put on their docket by Trump himself. I mean I think – for example, I think I saw today Trump – the administration is moving to kind of oust service members who are openly transgender. I mean that's – there could be a lot of kind of issues like that.
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Well, I think we are out of time. And so the 10 or 12 people in line to ask questions are going to have to wait to come up to us after the recording. But this has been great. Oren, thanks for joining us. And for those of you both here in the room and listening, this is a reminder to subscribe to the podcast in your app of choice. Rate and review. Go to our website, DividedArgument.com.
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And that process seems to be starting, but maybe has not fully completed. There are some cases where looking at the docket, you might expect the government to change its position with the new Trump administration administration. in charge and acting Solicitor General Sarah Harris now making the decisions where that hasn't yet happened. Maybe the Scrimetti case. I'm not sure.
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Store.DividedArgument.com for merchandise. And I don't have a funny lead out today. I've been so intimidated by this forum that I don't have a good one. You have one lined up, right, Will? No, you're the funny one, Dan. Okay. All right. Well, that'll be it for today.
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Maybe the government just thinks the case is going to come out the way it wants anyways and it doesn't need to expend capital. I don't know. Are there some of these that you're expecting to see? So the government did file letters asking for a stay in the briefing schedule while it figures things out in four cases.
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Several environmental cases and another case that implicates student loan forgiveness. But I imagine there might be more, right? What do you think?
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Um, uh, you know, I don't, I don't recall what the tradition is there, um, in terms of the government stepping in to change its position. If the, if the case has already been that far along in the decision making process.
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But so your view is that we're going to see more. More stuff is going to shake out maybe in the next week, maybe even by the time listeners get to listen to this episode at home.
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Well, keep your eye on that. Okay. What else? There's a shadow docket opinion. Andrew versus White. Habeas case. This one is a little bit surprising. Okay. This is a per curiam opinion, seven to two, or at least a per curiam opinion with two dissenters.
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It is theoretically possible for there to be a per curiam that has a majority of the court where there's one justice, the sixth justice, who decides not to join but also not to dissent. But –
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you know, ostensibly maybe seven to two, granting at least some measure of relief to a prisoner in a habeas case governed by EDPA, the Anti-Terrorism and Effective Death Penalty Act, that makes it much harder for state prisoners to file federal habeas claims. And so this one is kind of surprising in the sense that, you know, certainly in
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So hopefully we don't make this the last one. We'll try to do our best to not totally crash and burn. So let's see what happens. So we've got some interesting stuff in store for you. We have an empty mic up here at the podium for a surprise guest. But those of us who are listening, those of you who are listening at home on the podcast, we'll have to just wait and see who that's going to be.
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But actually for quite some time, it's been – in habeas cases, if you're going to see a summary reversal in a habeas case, you would much more expect it to be one where the government, the state is the petitioner overturning some opinion by the Sixth Circuit or the Ninth Circuit granting relief. This is the opposite.
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This opinion doesn't necessarily let the prisoner go free, but nonetheless, it is a win for a prisoner. And we can talk about the specifics, but just stepping back for a second, were you as surprised as I was to just see – a case in that posture.
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Yeah, this one doesn't quite look like that to me in the sense that if you just described to me the basic facts and the legal posture, I would have said I would predict most federal courts would rule for the state in that situation. So let's tell people a little bit about it. So the prisoner, habeas petitioner. Her name is Brenda Andrew.
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She was convicted and sentenced to death for murdering her husband. Under the facts, it appears that the actual killer that fired the fatal bullet was a man with whom she was having an affair. And the question was the scope of her involvement. It does seem like there was – evidence, some evidence supporting that, that Justice Thomas and his dissent that we'll talk about highlights.
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But at her trial, the state introduced a lot of evidence that seemed highly prejudicial and was not, at least seems to be not directly relevant to guilt or innocence. That was just designed to kind of paint her as kind of a bad woman and a bad mother. She had a lot of affairs. There was lots of evidence about
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Her sexual conduct with various people, how many times she had sex with affair partners, where, what she was wearing, all sorts of things like that that you could imagine would inflame a jury and maybe more so a jury. No disrespect to Oklahomans, but they're probably a little bit more conservative than our audience here in California. And she's filing a due process claim.
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Well, the claim is that at a certain point, introducing so much irrelevant prejudicial evidence could violate due process. The thing that is interesting about this is the court had said that in a case called Payne versus Tennessee. The court here quotes this line from the opinion in the very first – from Payne in the very first opinion of this summary opinion here. Payne said, evidence –
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So keep listening. But before we do that, what is there to catch up on?
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That it can be the case that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair. When that happens, the due process clause of the 14th Amendment provides a mechanism for relief. Okay. So the court has said that 14th Amendment due process clause can provide a mechanism for relief when there's tons of really prejudicial evidence introduced. Okay.
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Did they say that like in an opinion really clearly providing such relief though? No.
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doesn't that seem like an overly simplistic concept of dicta? I sort of understood it to be if it was essential to the reasoning, right? If the court says – But you know it's essential if they go in the right way. Well, you know for certain. But if the court says the only reason this person is losing is because of X, Y and Z, I mean then I think it's fair to say – but this is not that, right?
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This is a case where the court – Payne, the Payne case, the court sort of said that Maybe to say it's an aside is coloring it a little bit too much. But the court there rejected a claim that – where the defendant was trying to avoid the introduction of victim impact evidence. And the court said, well, by the way, basically there's this other avenue.
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Yeah. Did I mention that he was like super sexually depraved?
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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.
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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.
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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?
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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?
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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,
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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?
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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.
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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.
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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?
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If I can offer a side note, because you put the general law point on the table, I thought that was kind of interesting.
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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.
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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?
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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.
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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 –
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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.
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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?
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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.
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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.
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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?
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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.
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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.
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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?
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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?
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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.
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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.
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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.
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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?
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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.
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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?
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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.
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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.
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So like a kind of originalist lawyer who teaches at the University of Chicago.
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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
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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.
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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...
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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.
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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.
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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?
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is saying people shouldn't care about qualified immunity. So you did 50% on that.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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Ben Franklin's inventions, the full extent of which I was not familiar.
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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.
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Okay. All right. Well, you didn't tell me you didn't list those things.
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Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps. I'm Will Bode.
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That's like kind of, is it the kind of the Supreme Court version of the like old prank call thing where you conference call in the two pizza places and like Domino's like, what do you, do you want a pizza and pizza? It's like, do you want a pizza? I've never done that. Did you do that when you were a kid?
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trump that he was like really conservative i guess i would just assume not have supreme court justices serving as like ideological references but i don't know enough to really weigh in and that one does seem to have kind of disappeared right that was a very flash in the pan kind of scandal i think so yeah i assume you're okay with we're just serving as like academic references like if a law school wants to call somebody's justice and see if they'd be a good law president that's fine i yeah i mean are you about to like hoist me on my own petard in some way i was just checking
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Yeah. I mean, yeah, I think in general that seems okay to be a reference. I mean, it may be like if someone is a law clerk is trying to get a job with a party that is currently like a company that currently has a petition before the court, like not as a lawyer, but like, I don't know.
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I'm not sure you listen to these until I queue them up for you, but it's in our shared folder called voicemails.
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And maybe there might be times when, when those kinds of what we might consider ex parte contexts are inappropriate, but as a general matter, no, I'm not going to say that. Yeah. I'm just riffing. I don't, I don't know. I don't want to commit myself. That seems fine. I think if it weren't a lead-on Trump, everybody would think it was fine. You think everything's fine, though?
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You think everything is ethical, right? I think you'd come down and maybe say straight bribes, or maybe you'd be willing to say— Of course bribes are ethical. Okay, okay. But you trust them. You trust them. You think they're all— No, not at all. Okay, okay. All right, we'll just schedule. Maybe we should just schedule like a kind of monthly like ethics episode.
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No, I hope not. And I don't think we're going to record the class. No, no, it will be private. Okay, so your attempt, I think mostly failed. I think you got me to go in for like five minutes, but we're still going. On to cases. We actually want to talk about... Two cases. I think we might be able to pull it off. I've got 40 minutes or so. I said might. Might just keeps my options open.
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But two cases, one perhaps slower profile than the other, but one being a case that represents a victory by a friend of the show, Ashley Culler, whose praises we have sung in the past for, I'd say, snatching victory from the jaws of defeat in the Mallory case, that interesting personal jurisdiction case we talked about. Not last term? Prior term? Is it last term? It's all kind of blending.
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Hey, just a listener calling in. It's been two years since Will said that we would know within two years. It's now January 2025, and we're supposed to know who leaked the DevOps decision by now, and otherwise, I believe Dan may owe him or maybe owe it a dinner. So I wanted to flag that for you all. Take care. Bye.
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Okay. And I thought he gave an incredibly good oral argument. I think I actually played the intro. But this is another... Can we talk about this one for a minute before we do TikTok? Can we get away with that? Are you worried about it? Okay. Another one where I think – and there – so back to Mallory, in that case, very narrow win.
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Carved together an unusual coalition of conservative liberal justices, really as close as it could possibly be, and got Alito seemingly to very grudgingly come along. And here's another kind of impressive win in that it's a unanimous win. But as respondent, respondents are less likely to win than petitioners and getting the court to side with the short side of a split.
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I think getting the court to affirm where the court below was the only court on that side of the split.
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So by the way, I had cats for some time and I was kind of conned into buying the prescription cat food for some number of years. And I remember I was at the vet one time and I kind of just started asking questions. I was like, well, why is it prescription? And they like, They did not have great answers for me. And then I just decided, I was like, this is stupid.
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I'm going to get the regular Costco cat food. So I got smart on that.
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And I think that's clearly correct, right? And it was never when I tried to ask questions about this. So I don't know if there's a cat food suit going on or if there's a – maybe, actually, if he's working on one of those, I can be part of the class. I don't know if I get some payout on that. Yeah, it's possible that cat food's in this class. I'm not sure. Well, it should be.
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If there's a plaintiff's lawyer out there, can you do one of these? It's probably outside the statute of limitations for me because it was quite some time ago. But I felt pretty annoyed about that.
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Yeah, and it's a little confusing because I guess it's not clear whether those are independent claims or those are just kind of tied up.
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We treat here that finding a federal jurisdiction as given, and then for the rest of the opinion, they just describe the federal issues as if they are federal claims. I guess they don't need to resolve it because they are concluding, as we'll see, that there's no jurisdiction either way.
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And so just as an example of how close attention our listeners are paying, we actually got Two emails from listeners Ryan McLaughlin and Isaac Legrand with the same reminder, which I surely had forgotten. I remember that we had that conversation in general and that you had predicted that the name of the leaker would be known, but I didn't remember the specifics.
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But the Eighth Circuit said... And have we explained the concept of supplemental jurisdiction?
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Okay. Is that important? Well, I mean, it doesn't mean we need to explain why the... There would have been jurisdiction over the state law claims to begin with.
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I wanted to ask to flag that because is there like a dyed-in-the-wool originalist argument that that's unconstitutional? Yeah.
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We would not be able to get that into federal court. Yeah. But you can see the kind of policy appeal of saying, no, you don't get to, you plaintiff don't get to send it back just by amending. Because it does have this flavor of gamesmanship. Yeah.
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Don't you think just courts, though, have a natural kind of aversion towards parties doing stuff to kind of like get a case away from a judge, right? Just kind of to escape jurisdiction. I mean, I just I can see that why judges would kind of.
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So I guess I'm going to cash that in shortly, maybe when I'm up in Chicago.
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And we don't call that gamesmanship, that you settled. But I mean, clearly there must have been a strategic consideration that it is worth it to get away from, we want to get away out of this federal forum, right? Yes. That must have been part of the thought process.
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Talk about it. Okay, so we should probably preserve time for the main course. It's a little bit more of an appetizer. Dog food. I'm just going to, if the listeners will forgive the audio issues this will create. I went analog today and actually read on printed paper and not on my e-reader. Do you have an e-reader? I have this thing called a Remarkable.
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I don't have a Remarkable, although I use an iPad Pro for all my...
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read it yeah i used to but then i like i can't not look at my email every 30 seconds if i'm doing that so i have to the remarkable has no ability to do that so it's the only way to you have a better attention span than me no i just read my email all the time you what i just check my email but you managed to also read long complicated things i just so somehow somehow you you you're able to thread that it happens when i'm someplace without wi-fi well i'm like sitting in the waiting room waiting for my kids someplace that's how i go but i always have wi-fi and how to tether my phone
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Okay. Yeah, I was just – one thing that I noted, and maybe you'd know more about this, it seemed like right around pages 12 and 13 of the opinion, it looked like – is the court kind of just resolving some other questions that have not actually ever been resolved by serving court cases? Yeah. They say, adding federal claims can create federal jurisdiction where it once was wanting.
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I might still be able to prevail. Yeah, I'm just wondering whether you have enough strings in the conservative legal firm I'm at to make the disclosure public in the next two weeks so that you can save face. I do think it's plausible that we'll get one of these tell-all books that we get every few years about the court that will contain some more details. I imagine...
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And then their site for that is a First Circuit opinion, right? Is there not a Supreme Court opinion saying that? Or are they just sort of saying, well, let's just decide that too? Is that just totally uncontroversial?
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The general, the doctrine that And there's another one they put in the footnotes. They say, to our knowledge, no appellate decision addresses whether, in the final situation discussed, when an amendment eliminates a non-diverse party, the rule in removed cases similarly follows the rule in original cases. So that would be a case where someone...
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removes a case to federal court on the basis of diversity jurisdiction but there is a there's not complete diversity and then yeah the plaintiff like creates complete diversity by removing the non yes party yes okay i think you're right that these are things that are i mean that are not well stated in some court opinions and in general this this whole opinion which is by justice kagan is written as a
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Page 14, there's a site to a Seventh Circuit case with the Posner J parenthetical. Those are always interesting to me. Which judges get the judge parentheticals?
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I'm going to do that. I'm going to do that using the app we have mentioned on the show before that you refuse to use because you are a Windows person. It doesn't work on my computer. What? I said it doesn't work on my computer.
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The lovely special app. What is this? I don't remember what the app is called. Case Viewer that gives you instant fingertip access to cases from the Supreme Court and other courts. And you called it Judge Celia. who is the judge who goes out of his way to use the kind of pretentious words.
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Yeah. Sorry, Judge Celia, you have not entered the firmament of the parenthetical. Okay, well, congrats to a friend of the show, Ashley Keller. Opposing her clerk, incidentally. Oh, yeah, yeah. It all goes full circle. Okay, nothing else to say about that one, but kind of an interesting one. So now, let's deliver. We... We promised and delivered. We neither under nor over promised.
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And we are now neither under nor over delivering. We are delivering on our promise to talk in some way about TikTok incorporated versus Garland, which is consolidated with Fireball versus Garland. Fireball is a TikTok user, right? Yes. And there are other that consolidated case. There's not just one user, but a number of users. of creators.
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I don't know if TikTok creators have, I don't know if there's a special name for them, talkers who are suing about a statute. The Protecting Americans from Foreign Adversary Controlled Applications Act. Nobody seems to call this
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that a journalist is not going to be willing to actually use somebody's name for fear of liability.
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Yeah, I was wondering when I was reading first read the name of the statute, I was like, is this one of those ones where Congress wrote it to come up with a clever acronym? But but no. OK, so how does this what is this law about? This law is about TikTok and other stuff. Right. I mean, it does. It is explicitly about TikTok and TikTok's beneficial owner, ByteDance. Right. But not not exclusively.
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But we may get, I can imagine getting a book that has a kind of detailed TikTok play-by-play, not TikTok in the other sense of the word, how it all went down and say the justices became convinced it was a law clerk for justice whoever, or they became convinced it was this person or that person without naming names.
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Yeah, or 270 days for the other companies, 270 days from when they are designated as such by the president.
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Yeah. And the deadline, as you said, January 19th, 2025. We're recording this on the 17th. This episode will presumably be out the 18th or the 19th. I did think there was one piece of – this is so petty, but I think there was one piece of kind of clunky writing on page five.
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It says, because the act itself designates applications operated by ByteDance and TikTok prohibitions as to those applications take effect 270 days after the enactment, M-January 19th, 2025. I found that sentence ambiguously written as to whether... I knew the answer, but just as written, it was like, is that the date of the enactment or is that the 270 days after?
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Okay, okay, okay. Still, on first read, I was just like, oh, it could have been better. This is a per curiam, by the way, that I think most of us think was written by the Chief Justice. What do you think?
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And this is interesting, though. This was a shadow docket, except it was orally argued last week.
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Lightning docket, emergency docket. Lightning docket, that's right. Call it whatever you want. It's not really in the shadows. So I think this is not a shadow docket opinion. It is under your capacious original definition, but there's nothing shadowy about this, right?
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And so then what they do is ask for... The opinion comes out on applications for injunction pending review. The jurisdiction line is not on petition for certiorari, at least on this PDF.
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I'm looking at the first page. I just see... Slip opinion. Are you looking at the first page of the slip opinion?
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Oh, there is a revision noted. Revision. They changed it. Holy shit. They changed it to what you have. I have the old one. I printed it this morning. So even they didn't know that it was on the shadow.com or not. Okay. Wow. That is fascinating. Has anybody else noted this? I don't think so. Okay. Okay. Love it. I love the real-time discovery. That was weird, right?
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I was sure I was misreading it, right? 99 times out of 100, if that's your scenario, you would have had the right thing, and I would have been reading some other thing I printed a month ago. Oh, I see. There are other revisions, but they're just the same revision on the subsequent title pages for the subsequent opinions. Mm-hmm.
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Forget that they did that. And this stuff happens on this tight timeline. Even the mighty clerk's office and the reporter's office, maybe. Yeah.
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Yeah. So I was pulling up Whole Women's Health, right? Which is the Texas SB8 case, right? Yeah. And that was similarly, it was a little bit on a longer timeline, but wasn't it similarly kind of like shadow docket converted to cert? It was cert before judgment. Maybe that's a little different.
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Yeah, okay, well, would have been nice. I just, I don't even understand, why can't we just know who wrote it? Like, who cares? Like, why does it have to be per curiam? Like, if it's not on a cert docket, either way. Yeah. Just, why doesn't somebody want credit for it? I don't, I don't, I don't get it. But I guess we should talk about the substance.
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So who would have predicted that we would record a same-day episode about a breaking piece of Supreme Court news? This probably won't come out the same day, but hopefully this will come out Saturday or Sunday. We had a breaking development.
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I mean, is it your impression that the chief kind of keeps all these super big high-stakes cases for himself? I mean, not like every big case, but the ones that kind of directly implicate the kind of Trump and political process and... I mean, I don't know about all... Like, a lot.
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Well, he couldn't have written Dobbs because he didn't agree with the majority, right? You know, right? He could have tried to steal it. Yeah. Well, for all we know, he did, right? Like, who knows? Yeah, I don't mean he writes every... I don't mean he writes every big case, but a case like this, you and I both would have, neither of us would have taken the bet that he wasn't going to write it.
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This had chief all over it, whereas a case like Bruin, not necessarily to me. Maybe cases that heavily implicate relations between the branches or something.
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I don't quite know the category. I feel like there is a category. Right.
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Yeah. The law is okay. And to be clear, the arguments are First Amendment arguments. Yes. And different First Amendment arguments, right? There's multiple different First Amendment arguments in place. So there are First Amendment arguments actually being offered by the users, the content creators, influencers, perhaps. There is TikTok's right to speak. And also...
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an associational First Amendment right that's sort of in there that they, at least at oral argument, noted. And then there's, I guess, potentially a question about does ByteDance, which is a non-U.S. company, does that have any First Amendment interest that's not really the center of gravity?
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Yeah, so to the extent that, like, ByteDance was sending over representatives to the U.S. to, like, make some decisions that would be protected? Well, it's more complicated, at least, then. They're not... Yeah. There's a lot of stuff like that in this opinion, where there's, like... here's a complicated, hard question. We're not totally going to answer that for you.
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Well, I do think it's one plausible path in addition to the book expose path is in some number of years someone comes forward and writes the New York Times op-ed. I was the leaker. Yes, I agree. And I don't know who – I actually am not clued in enough on the behind-the-scenes gossip to know who this person is that the justice is. Or Justice Alito thinks it is.
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Yeah. So first step of that is the court says, we assume without deciding that the challenge provisions fall within the category of things that are subject to First Amendment scrutiny. So maybe it's not predicted at all, which would make the case easier, but they're just going to assume for purposes of argument that it is and then go through that analysis. Yeah.
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It's not clear it's a good answer for North Francisco because in the foreign... It's a little different because that's a case about who gets to speak. It's not telling the speaker how it has to organize. I don't know.
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And Justice Sotomayor would have rights of concurrence, in part concurrence in the judgment where she says she joins everything except for the part we just talked about. She would have just said yes for some of my clearly implicated here.
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I imagine that there's some folks in D.C. who know enough of the gossip to be like, oh, yeah, they thought it was this person. I don't know who that is. I wish I did. I wouldn't name names on the show. I don't want to get sued, but I would be very curious. But I can imagine the court does something, allows Trump to run for third term.
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And did you find that? I mean, that was, that was kind of, it's kind of a clever dodge.
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Yeah. Okay. So that goes away. So this is treated as facially content neutral and justified by content neutral justification, which is preventing China from collecting vast amounts of sensitive data from 170 million U.S. TikTok users. That's a lot of people. That's like... More than half the country. Yeah. Way more than half the people who aren't young children. Do you think that number's true?
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There's got to be a lot of bots in there. That doesn't seem true. Yeah, or like double accounts. I mean, I don't know. I don't. Do you use TikTok? I don't. I have an account that I created just so I could like occasionally look at stuff, but I don't actually use it really at all. Well, I don't let it use my, yeah, minimal data.
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I don't let it access my contacts and I've only opened the app like five or six times. But when you watch stuff, they know what TikTok you like. Yeah, presumably. But I just can't imagine that I'm in the top 10 million people of the priority of China. And we start getting threatening emails requiring that we give more pro-China coverage on the podcast. We'll know why.
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We haven't really had much China-facing content in any way. That's because TikTok is...
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So it's good enough for us. Yeah. Okay, and this is a detour, but another kind of interesting thing about this, and this is, I mean, this is, I think it's happened before, but it's kind of unusual. The government, like, Gave the court a bunch of evidence. Classified evidence. But that it said, like, the parties can't have. Other parties can't have. Only the court needs to look at it.
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It is something that people on one side think is really even further beyond the pale. And that person writes the op-ed. I think it was important to stand up to the court.
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And so there were, like, parts of the government's filings that made an argument. Manuel Francisco, a lawyer for TikTok, was like, that's in a redacted part. I don't know what it says. I think they were filed below.
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I don't think we know if they looked at it or not. Well, yeah, we know that they don't rely on it in the sense that there's a footnote that says, our holding and analysis are based on the public record without reference to the classified evidence the government filed below.
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No, I thought it was, as far as these lightning docket type opinions go, I thought it was better than some, for sure. And not wholly unpersuasive. There's some other kind of issues in the case. What about, does Congress have mixed motives here, in part because maybe Congress's motivation was not just to prevent data collection, but was to kind of prevent China from using the algorithm to kind of
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Put out propaganda, and I guess that would be considered a bad motivation on Congress's part because that's not content neutral. Maybe the government doesn't have a legitimate interest in preventing foreign misinformation, foreign propaganda, which is the position that Francisco represents.
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explicitly said or arguments that there's no legitimate interest in preventing foreign propaganda, which is interesting.
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Yeah. But the court doesn't say that. It just says here, the record before us adequately supports the conclusion that Congress would have passed the challenge provisions based on the data collection justification alone. Yeah. So maybe if it's in a different case where it's... Yeah, that's a different way to think about it. Each one is necessary.
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Maybe, I mean, it comes out the same way, but we don't have this. You can't cite this for that. Okay. We mentioned a few other things to mention. We mentioned Justice Sotomayor. Mm-hmm. Short opinion. And then longer, I mean, not super long, five pages, but longer opinion by Justice Gorsuch, who doesn't go along. He's the only one who doesn't go along with the majority at all.
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A kind of second iteration of the famous book Closed Chambers by Edward Lazarus, kind of leaking various things that happened while he was clerking on the court. So we'll see. Okay. So that was a little bit lighthearted. One piece of kind of sad Supreme Court-related news slash gossip, but really news at this point, is that famed Supreme Court litigator and founder of SCOTUSblog –
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I mean, he goes along with the result. Yeah, yeah. I mean, he doesn't join any single word of it. He just concurs in the judgment and writes his own thing. Interestingly, kind of at the outset expresses some reservations about the kind of timing of a decision like this.
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We have had a fortnight to resolve finally on the merits of major First Amendment dispute affecting more than 170 million Americans. Given those conditions, I can sketch out only a few and admittedly tentative observations. And he's not wildly critical of the majority, by any means, but expresses some of his own views.
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And so second, I am pleased that the court declines to consider the classified evidence the government has submitted to us. And so it does, as I said, the government had given... In some way, I guess the record had been transmitted in some way, maybe the classified stuff given to us, but shielded from petitioners in their council and note some concerns about that. And that does seem legitimate.
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Third, this is the interesting where it gets interesting. I harbor serious reservations about whether the law before us is content neutral and thus escapes strict scrutiny.
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But then he says, while I do not doubt that the various tiers of scrutiny discussed in our case law can help focus our analysis, I worry that litigation over them can sometimes take on a life of its own and do more to obscure than to clarify the ultimate constitutional question. Interesting. So there's this thing people have been saying, post-Bruin or the conservative ideology.
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hardcore originalist moving away from tears of scrutiny entirely just as kavanaugh says explicitly in rahimi he's against it yeah yeah and he's not walking away from it totally no but he's saying maybe we should put less emphasis on it since they can be help focus our analysis useful maybe they're useful tools so but also let's not let's not focus on too much yeah a kennedy-esque view on them i think
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Yeah, I think he just generally didn't like kind of complicated kind of doctrinal frameworks. He kind of wanted to be a little bit more common sense about things.
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And if this were the majority opinion, I mean, I think that would sort of weaken its force a little bit as precedent, which is maybe healthy. I mean, the majority opinion does also contain one of those.
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Yeah, but it's not saying it's not worth something as precedent. It's just saying, treat this as kind of more specific. Right. That's a way of saying like the scope of our holding. It's the same thing as it being tentative though, right? Gorsuch is like it's tentative. Yes, that's true. This is not tentative, but it's focused. What else to say about this?
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President Trump filed a brief, which you had sort of encouraged, right? You and Richard Ray had a thing saying there should be... There should be able to call for the views of the president-elect. Yeah.
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And really, a person who fundamentally changed Supreme Court practice, Tom Goldstein, has been criminally indicted for federal income tax evasion in an indictment that indictments are not proof, but indictment contains a bunch of very salacious allegations. Very unfortunate.
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And that brief was criticized by, among others, Jack Goldsmith as being kind of Trumpy in its rhetoric about the president and sort of reading as if it was designed to kind of suck up to President Trump.
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Anything else to say about this one? So, I mean, by the time you listen to this, listeners, it is possible I think TikTok is going to go dark. I think they're going to go dark on the 19th.
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Because the president cannot nullify a law just of his own initiative. I mean, there are provisions in this that allow certain kinds of relief, but you can't just say this law doesn't exist. Now, maybe there are due process kind of entrapment by estoppel type arguments for why a statement like that by the relevant authority can give you an entitlement to act. Right.
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I can't say I know Tom well, but he was actually my professor when I was a 3L as he taught the Harvard Supreme Court litigation clinic. And so I worked with him a little bit on a case called Virginia v. Moore. And really someone who – it's hard to overstate his role in shaping the way Supreme Court litigation is practiced today.
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Yeah. Still, I mean, there's other actors involved. I don't totally understand what does the Apple App Store, do they have decisions to make about this? So, yeah, I'm curious to see what happens.
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And we do have, Divided Argument does have a Blue Sky account, FYI. We don't have a TikTok account, do we? We do not, to my knowledge. I don't remember. If we do, it would be because I created one and I have no memory of that, but it's possible however many years ago I did, but I do not believe so. We do have an Instagram. We're on the gram. We're on Facebook.
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And we're on Blue Sky and X, formerly known as Twitter. It's still Twitter to me. Yeah, I always call it Twitter. And the... Twitter.com still gets you there. Okay. Well, I am out of time. I don't know about you, but it might be time to wrap it up. Thanks for listening.
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And check out the website, DividedArgument.com. We have transcripts up with some haste after each episode. Store.DividedArgument.com, where we have merchandise such as mugs, t-shirts, and the like. Send us an email, pod at DividedArgument.com, especially if you are going to tell us that Will was wrong.
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about something and leave us a voicemail 314-649-3790 we got a couple recently one i played today other which sounded interesting but sounded like the person was recording it underwater so it was not usable on the show so please please keep those coming and if there is a long delay between this and our next episode it will be because the government has determined that we are in fact
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controlled by a foreign adversary and has chosen to apply the Protecting Americans from Foreign Adversary Controlled Applications Act until Will agrees to divest the University of Chicago Constitutional Law Institute.
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I mean, he's someone who came into it without the traditional prestige credentials. He didn't clerk on the court. He had a D.C. circuit clerkship, but he didn't go to Harvard or Yale. He went to American University. But he sort of said, I can identify myself. Circuit splits. I can identify cases they're going to be interested in, and I can go find them.
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I can go talk to these lawyers who represented the cases before, just volunteer to take the cases. He did that to great success before anybody else was trying it. I think that his tactics were kind of seen as ambulance chasing by the kind of more genteel lawyers. members of the Supreme Court bar. I think John Roberts actually famously kind of criticized it.
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The court released a shadow docket-ish opinion in the TikTok case, and we are reacting as quickly as we can, which is not that quick, but quicker than we normally are.
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I don't remember the context, but he said, would you go to a lawyer that called you up on the phone or would you go get a lawyer that you found? And then SCOTUSblog, a tremendously valuable resource in aiding public knowledge of the court, but also in aiding people like you and me. And when I'm trying to figure out what's going on, I go to SCOTUSblog just as often as I go to supremecourt.gov.
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Yeah. Yeah. So, and I think it's, it's unfortunate because it's the Tom, because of his kind of outsider experience, status. I mean, I think it's the kind of thing where the elite people are going to be kind of snickering a little bit behind closed doors. But that's not the right thing to do right now about someone who is just tremendously successful at what he did.
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And I think he had a persona that I think some people found a little kind of too much. I remember I can't remember what case it was, but there was the case that he argued that was the same day as another huge case. And he says in his opening to the court is, today's undercard presents the issue of, and everyone was kind of rolling their eyes. But maybe this is a selfish thing to worry about.
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I do actually a little bit worry about the future of Skoda's blog because I believe he owns it. I don't know if it's about to get shut down. I don't know if it's about to get I mean, literally, I'm not joking, I think, could he get seized by the IRS if he owes all this money?
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That would be in addition to all the bad things for Tom Goldstein, for his family, but that would obviously be very bad for the public if Skoda's blog were to disappear. So again, that's a selfish thing to worry about right now, but it does seem newsy and I felt like needed to be remarked upon.
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website with easy access to the briefs, which are easier to get now for the reasons you mentioned. And what's pending and just the basics. And let us not forget Relist Watch by the great John Elwood. Really one of the most tremendously useful things, the court coming out of the commentariat of savvy Serbian court observers, far more useful than what we do here.
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I think I've mentioned Relist Watch before, but basically some number of years ago, John Elwood realized that which is when the court on its docket notes that a case is going to multiple conferences. This is one of the best ways to get information out of the court in terms of what's going on. And he started noticing, hey, this case is being relisted. It's been relisted 12 times.
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What does that mean? Oh, turns out next week there's a summary reversal. It turns out next week there's a long dissent from a denial. And he started noticing, gosh, they seem to be relisting a lot of cases once before they grant. There seems to be some new internal checking process happening. So hopefully that Relist Watch, among other valuable SCOTUSblog contributions, can continue.
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Okay, any other newsy things? I don't think so. Okay, so Shadow Docket?
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Two-and-a-half-month delay? It was a long delay. It was September to December. Yeah, yeah, okay. You had people lamenting the death of the podcast to you just on the assumption that it was clearly over. But it is not. And in fact, we have a couple of live shows coming up, believe it or not. We are going to Stanford in less than two weeks. I'm excited.
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Is that a doctrine or is that just kind of an assumption, right? That hasn't ever been tested. It's a policy of the DOJ, right?
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It says a president cannot be indicted during office. I think it describes the sitting president's immunity. I think I've forgotten that part of the opinion. Jumping off point. No, no, no. You have a far better memory than I. You've caught me before.
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Which are currently being, which at least for a while, at least were being ignored by the same person.
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Okay, so this is 5-4. Yeah. Do you think it's weird that nobody even bothered to write kind of a three-sentence, let alone a two-page dissent?
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Yeah, I'm just not sure they have good responses to both points. Well, I mean, presumably they think they do. So I would be curious. This is kind of like the bad version of the shadow docket, right? That kind of totally unexplained. They're not doing the thing. They're refusing to do the thing, but still would be.
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We were speaking to a class there, but we also were squeezing in a live show. And I think we're headed to Northwestern, your neck of the woods, a little bit later this spring. So we are still active. Active and traveling. Yeah, so some things to catch up on. Quick one, actually got a couple emails as well as a voicemail about this. So maybe, Will, you could listen to the voicemail.
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Okay, well, we'll circle back to something Trumpy in a few minutes. So actually, here's something unpredictable. We're making good time. We're maybe 15 minutes in. We've covered all the preliminaries we hope to cover. Were there any other preliminary matters?
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Oh, are we talking about the Trump phone call with Justice Alito? Or are you thinking about something else? That was what I had in mind. Yeah, that was interesting. So Justice Alito apparently had a phone call with President-elect Trump purportedly about a reference check Yeah, Will Levy, a friend of mine from D.C. I haven't spoken to about this at all, but somebody I know.
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A job, I'm not totally clear what the job is. And just Salido said they didn't talk about this filing or anything else that was pending before the court and perfectly willing to believe that. It raised my eyebrows just because it made me wonder, is President Trump going through other – Job seeker resumes to call random references?
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Is he calling a hiring chair at various law firms about various people being considered for various jobs? Or was this kind of a pretext that he used as an excuse to reach out to Justice Alito? It doesn't necessarily... I'm not sure it's unethical in any way by Justice Alito to serve as a reference for a former law clerk. I think that justices do that all the time.
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But I guess I wonder, on the other side of it, is that the motivation? Is that what's going on?