Will Bode
Appearances
Divided Argument
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I made the mistake of getting into a Twitter fight with Adam Mortara over this issue, and I'm not going to make the mistake of repeating it on this podcast. OK.
Divided Argument
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I guess I do disagree on this one, I think. And I think you mentioned this. I think there was a sort of a statement the next day by Dean Reuter that was sort of a veiled apology to Steve or a reminder that- Which is surprising.
Divided Argument
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So I guess here's the thing I think is good is, I mean, I've read a lot of writing about this exchange and I've talked to a lot of people offline about this exchange and a lot of conservatives who watched this exchange, who probably didn't come into this exchange as Steve Vladek, Dan Epps, partisans left the exchange thinking that you and Steve made a lot better points than anybody else did and left the exchange, you know, like watch the exchange and left thinking like, Oh,
Divided Argument
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Oh, these criticisms aren't very good. And if anything are sort of damning and if this is the best they've got, you know, that moves me a little bit. And I guess I do think that's a good thing. I mean, it's not a, it's not, it doesn't speak well of, of all the people involved exactly.
Divided Argument
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But I think the fact that it's a forum in which a bunch of people who don't necessarily share your priors will come and can be moved at least somewhat.
Divided Argument
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I think that's better than... I mean, it's not like people won't talk about these things otherwise, but I think the modal form of exchange otherwise tends more towards the echo chamber, where readers of Steve's Substack or whatever read What's Wrong with the Fifth Circuit, and Fifth Circuit clerks or people who hang out at Fifth Circuit bar events talk about why liberals don't understand what they're talking about.
Divided Argument
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Yeah. This might be a record, right? This is the longest break we've gone for an episode since the show started. I think that's quite possible.
Divided Argument
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Yeah, it just depends on the judge. Look, if instead of Judge Jones, they'd gotten Justice Kavanaugh to be on the panel and talk about why he thought court repacking was a bad idea, I bet it would have been a great panel. I mean, I don't think he would have made the most sophisticated arguments, but I bet he would have said interesting things. I bet it would have been productive. Hopefully.
Divided Argument
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Would have been different, yeah. Hopefully he'll take the invite next time, you know?
Divided Argument
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Who needs that stress in their lives? So with the time to reflect, are there any other things you wish you'd said that you didn't think of in the moment that you want to say now?
Divided Argument
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Yeah, I was going to say that. That was interesting. We are a Supreme Court podcast rather than a presidency podcast, so that's not immediately in our jurisdiction. Although, of course, the election and the change of administration could have lots of interesting implications for the court. I don't know if we're going to see any new nominees anytime soon.
Divided Argument
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Yeah, I don't know. I do think it'll be interesting, I think, to see the new Trump S.G. 's office, the last Trump administration S.G. 's office. Noel Francisco and Jeff Wall was, I think, you know, very professional, although definitely took some positions that previous S.G. 's offices would not have taken. And another thing that will happen is possible, you know.
Divided Argument
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regime change, switching of positions about various things. One of the hottest button arguments the court's heard so far, this Scrimetti case about gender-affirming care, is one on which the surreptition is by the United States. And so I guess if a new SG's office suddenly says, we no longer stand behind the arguments in the surreptition, that'll
Divided Argument
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Yeah, right. No, they haven't been calling to see if I want to be head of OLC. Would you do it? Head of OLC? Yeah. I guess I would have to meet the AG. Okay. because the head of LLC reports to the Attorney General, and you want to know if you have a job like that. whether you trust the Attorney General or not, and how that's going to look.
Divided Argument
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I would have to think through carefully the de facto officer doctrine, because I would be accepting a commission from somebody who's not eligible to be president, and that would arguably be invalid, unless you believe that the de facto officer doctrine would render the commission de facto valid, notwithstanding Trump's constitutional ineligibility.
Divided Argument
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That's not what the Supreme Court said, and they were wrong. And I would have to stop doing my job for a while and move to D.C. That seems like a pain. So hard to see it.
Divided Argument
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Yeah, that's true. The Federalist Society is principled and committed to the rule of law. Or perceived that way by. Yeah. I think you get invited to a lot more FedSoc events than I get invited to ACS events.
Divided Argument
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Yeah, I'm not jealous. I'm just, you know, relations seem to work differently. Yeah.
Divided Argument
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I'm not sure it's even necessary. So first of all, on day one, what is the SG going to do? So one option is they could just send a letter saying, you should know, we now want to lose. But if they do that and don't withdraw the petition, that doesn't necessarily mean the court loses jurisdiction. Right. Under U.S.
Divided Argument
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v. Windsor, where the court did something similar without an administration change, the SG's office showed up, said, we want to lose. And because there were still going to be concrete stakes from the judgment and because there were other parties on the other side who'd argued the case, the court was like, well, we can still decide this.
Divided Argument
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Now, that was wrong and just as Clay dissented, but still, there'd be precedent.
Divided Argument
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Yeah, and I was trying to figure this out. Under the Supreme Court rules, under Supreme Court rule, I think, 46, a party can withdraw their petition with the consent of all parties. But if Tennessee says, no, we'd like to win, we don't want this petition dismissed. We want you to rule in our favor. And then, yeah, maybe there's some different rule. Maybe there's some way.
Divided Argument
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Yes. I mean, yeah, I get the similarity, although it doesn't have the text to work with.
Divided Argument
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Yeah. I think there is very little probability of just the Scorsese endorsing the challengers arguments.
Divided Argument
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I don't know. I mean, yeah, I'd have to, I've read that. I've read that when just a Scorsese doesn't talk, that usually means he's going to be up for the government. I don't know if that's true. I have the vague memory that he didn't talk much in Bostock. Maybe I'm wrong about that. If I'm right about that, that would, you know, might be good for the challengers.
Divided Argument
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It could just be he knows that it'll be that everybody's looking at him and how he's going to square this with postdoc. And so didn't want to just speak off the cuff about that and wanted to really, you know, work it out.
Divided Argument
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Welcome to Divide an Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode. And I'm Dan Epps.
Divided Argument
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Yeah. And would you say when he does that, is it more often than not actually a helpful question where he's trying to solve the advocate's position or a gotcha where he's trying to- I think it's helpful.
Divided Argument
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Yeah. Maybe at that point, if you're the court, you start to worry about whether the case is moot. But then you've got the other challengers as well. Yeah. It's complicated. I mean, would you re-argue it and let those folks get argument time? I don't think so.
Divided Argument
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It was doing pretty well in some of the lower courts before the Sixth Circuit came along, right?
Divided Argument
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Yeah, they have the two digs from my term. Yep, that's interesting. I wonder if it's a good study of these. It'd be fun. You know, so the delay makes me think, right? Sometimes there's a consensus dig case, and sometimes, you know... Some people want to dig a case and some people still think they can save the case. And so sometimes you wonder if the delay is like, can we put together a theory?
Divided Argument
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That seems unlikely. I mean, I guess. If you look at the list, there's a case from the term I clerked, Philip Morris, USA versus Williams, that it took like four months to dig. It was argued December 3rd.
Divided Argument
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Yeah. Or another, there was a no dissent dig, First American Financial Corporation versus Edwards, which is one of these Article III standing cases about when a statute that gives you a cause of action supports standing, like Spokio and TransUnion. Oh, yeah. It was like the same issue before Spokio and TransUnion had been decided. Argued November 28th, digged six months later. Oh, my gosh.
Divided Argument
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Seven months later, June 28th. Now, it was the same term that the Affordable Care Act case was decided. So one theory is just basically they... Well, I think the theory is the case proved harder than they thought. Like we now know just as Thomas has turns out to have the liberal position on those cases. And we may not know exactly like, was that, was that going on then? And you know, they're busy.
Divided Argument
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Right. I mean, I guess you could think of digs. Let me try my typology. I think there are three categories of digs. Your fault, our fault, nobody's fault. So some digs are... And the court, these might not be uncontested. The court sometimes has digs that are clearly of the form. you sold us this repetition on premise X and now you get here and premise X is false. Yeah. And we're mad at you.
Divided Argument
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And it's had some times when that's, you know, more explicit rather than less. And maybe that, so they feel about Neil Kachal or whatever. It's sometimes you can sell the court on granting a case when you make it sound not at all fact bound by taking an aggressive legal position. Then you get to the court and you realize your aggressive legal position is kind of hard to defend.
Divided Argument
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But on the facts, you're in a pretty good case. So you want to go to retreat. And I mean, that actually happens lots of the time. But sometimes you might pull that switch. Sometimes you get away with it, right? Yeah. Yeah, absolutely. But sometimes you don't. Then there's our fault, which is like, we took this case, but actually it's really hard. We don't know what to do.
Divided Argument
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And like First America Financial versus Edwards might be a classic our fault dig. We just don't have it. We don't like it. Whatever. And then there are some where there's just a development that in some cases might moot a case or like the abortion digs last term, Moyle and Idaho, the ones about Amtala.
Divided Argument
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At least the court tried to sell those as a mix of your fault digs because the party's positions changed and nobody's fault digs because the state court, there've been other legal developments that have changed, even though it might really have been in our fault dig.
Divided Argument
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You need an adverb. Dismissed as retrospectively improvidently granted. Dismissed in hindsight. Yeah, I mean, I guess the improvidence also, well, yeah. I don't think anybody takes the adverb that seriously, but I think you're right.
Divided Argument
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sure no maybe the improvidence is failing to anticipate that this kind of thing might happen you know we thought the issues were teed up and now the developments cause us to realize what we cause us to realize what we should have realized all along or something but I mean, same thing. Well, a lot of these are really subsequent developments.
Divided Argument
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Like if the petition was good and then the parties just changed their position, it's not that the court was improvident in granting it. It's just the parties have tried to get away with something. Yeah.
Divided Argument
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Uh, several, I mean, so like some of the recent, like, yeah. Yeah. So moving on from digs, sorry. Yeah. So in the December orders list, there were a couple of cases that, that triggered my, my academic interests. One was parents protecting our children versus Eau Claire area school district. Um, there are several different school cases that got me going. This is a, uh,
Divided Argument
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out of the Seventh Circuit dealing with, it's like a parents' rights challenge on the other side of Scrimeti, where parents are upset that the school district has a policy of essentially not telling the parents if their children is transitioning.
Divided Argument
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Um, then that violates their rights, but it raises a kind of tough standing problem because the parents, you know, the plaintiffs in the case can't don't know, you know, can't say, Oh, we have, we have a child who's transitioning. His information is being kept from us. And so at least on one theory, the Supreme court's decision and Clapper versus amnesty international, um,
Divided Argument
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That was a 5-4 decision where just as a leader with the majority of the court were people who said they were being subjected to warrantless wiretapping, didn't have standing because they couldn't prove they were being subjected to warrantless wiretapping, even though the sort of nature of the program was that it was secret and they wouldn't know if they were being subjected to warrantless wiretapping.
Divided Argument
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And Justice Alito said, too bad, so sad. What's interesting is Justice Alito wrote a dissent for the denial of cert, complaining about how people are too skeptical of standing and how lower courts are leaning too hard into Clapper versus Amnesty International.
Divided Argument
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What I like is this just crystallizes something that I think we've observed in the past couple terms, which is something of a ideological realignment about standing. When we were in law school, and even when we were clerking, the well-known battle lines were that liberals wanted everybody to have standing, and conservatives used standing to get rid of cases.
Divided Argument
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And that was either good or bad, and people debated how much that was in good faith, but that was the well-known battle lines. And I still sort of have that reflexive intuition, but outside of the TransUnion Spokio cases about consumer protection statutes, it's really not clear that's the dynamic anymore.
Divided Argument
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Like over and over again, whether it's student loans or the first amendment job owning case or Mifepristone, or just the criticisms of 303 Creative, like over and over again, It seems like now standing has become more of the liberal position to get rid of cases. At least some conservatives want to open up standing.
Divided Argument
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And sometimes explicitly, a kind of like, well, liberals did this for a long time, and so it's only fair that we get to do it now kind of argument. There were some Fifth Circuit judges who said things like that in some of these cases. And I just think that's an important and interesting development.
Divided Argument
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Yeah, you might have had that intuition. You might be a principled person who also had that intuition about Clapper.
Divided Argument
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Yeah, you had lawyers who had reason to believe they were having communications with people who was plausible were being sued. surveilled, and indeed were taking costly precautions to try to avoid surveillance. Yeah. Do you think that case was rightly decided? I guess I should have a strong view about that. I thought it was at the margins. It was plausible, but a little bit of a reach.
Divided Argument
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And like all these cases, if you get into the facts, there were a few things about the allegations that were a little bit, you kind of wish they were pleaded a little better, but then the court decides it in a slightly more categorical way. Actually, both these cases maybe have a little bit more of a ripeness flavor, too, in some ways. It feels like we just don't know yet if this is right.
Divided Argument
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But of course, the court has now collapsed ripeness into standing. It has now said it's basically the same inquiry as standing. So we've lost the ability to say it's too soon.
Divided Argument
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I've never run for office. Don't plan to. Yeah. strategically, it's interesting to see a sort of substantive due process parents' rights claims on the other side. Now, Scrimeti is being litigated mostly as an equal protection case rather than a parents' rights case. But it's interesting to see parents' rights claims being made on kind of different sides of the culture wars.
Divided Argument
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But similarly, a substantive due process right to have people not keep secrets from you, which is sort of what they're bringing here, just does seem like a reach to me on the merits. If you frame it that way, I think it's- I didn't. My understanding is lots of kids keep secrets from their parents.
Divided Argument
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I guess the Supreme Court has said there's a substantive due process right not to have grandparents visit your child, court-ordered grandparent visitation of your children if you object to it. But those are at least things where, I mean, I get how you can get there.
Divided Argument
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It just seems like the right to have the government provide information to you about your own children that your children are keeping from you, just, it seems like.
Divided Argument
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Well, I take it the government is not stopping you from getting the information for your children if they're willing to give it to you. It's not like requiring the children to keep it.
Divided Argument
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But I take it the state action would be the same. If your child's teacher decided to keep a secret from you, they're a state actor too. So wouldn't it be the same claim?
Divided Argument
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Yeah. And some people are against that kind of thing. I'm not against that kind of thing. Why is there no federal claim here?
Divided Argument
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Yeah, okay. That makes sense. At first, I thought she was maybe disavowing the idea of a freestanding actual innocence claim, which would be surprising. Yeah, I don't think so. I guess he could now bring an IAC claim for his lawyer's failure to bring an actual innocence claim. No, he couldn't.
Divided Argument
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I feel like if you wanted to actually get executive reprieve... I feel like this would have been a much stronger dissent if she could have found another member of the court to join in with her on it. If you imagine... If she had Justice Jackson, that would have... Or Justice Gorsuch. I was thinking Justice Gorsuch. Yeah. One of the other more liberal members of the court.
Divided Argument
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Who could say, look, I agree there's no claim here, but it seems to us something has gone awry here. But maybe he doesn't agree, or maybe he just doesn't think it's his place to tell the governor of Texas what to do.
Divided Argument
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Although this is a perfectly interesting case about the application of students for fair admissions to selective high school admissions.
Divided Argument
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Yes. The other case I was going to flag was Wilson versus Hawaii, which is this criminal prosecution out of Hawaii for somebody who was carrying an unlicensed firearm in Hawaii. And the Justice Thomas, Justice Alito, and Justice Gorsuch all write separately, respecting the denial of certiorari.
Divided Argument
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It addresses this kind of really interesting question about how to actually think about Bruin claims that arise, the procedures of Bruin claims arising in the context of criminal prosecution. Like Hawaii's licensing regime is like New York's in that almost nobody could get a license, but the defendant didn't try and fail to get a license. So does that, you know, he brought his own claim.
Divided Argument
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We would think about that in terms of exhaustion, I think. And we'd either say he needs to exhaust or doesn't need to exhaust because it's futile, but in a criminal prosecution, like how do we think about it? Which is, I think a very interesting question.
Divided Argument
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I am working on an article on this with my Second Amendment co-author, Robert Leiter, and we're inclined to say actually that a lot of the current assumptions about facial challenges and things like that that we correctly apply in the civil litigation probably don't apply to criminal litigation, which is potentially irrelevant to- So which way does that cut?
Divided Argument
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You should be able to make these claims. I'm not sure it matters for Wilson's case specifically, although I need to see more about it. But in general, when the defendant is trying to dismiss the prosecution against them, they shouldn't have the same burden of showing that the statute is unconstitutional as applied to everybody.
Divided Argument
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And in part, you need to look at that the government actually has the burden of indicting and proving the facts necessary to make the statute constitutional in your case.
Divided Argument
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So for instance, if you have a statute, if it turns out that the felon in possession statute is unconstitutional as applied to nonviolent felonies, but constitutional as applied to violent felonies, for instance, that then when the government wants to bring felon in possession cases, it should have to prove kind of like a jurisdictional element. Interesting.
Divided Argument
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Yes. I mean, so in those cases, we could bracket maybe habeas is going to be a third wrinkle because on post-conviction relief, the conviction is presumed valid and so on.
Divided Argument
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Yeah. But if you imagine somebody's being prosecuted now under – these sodomy laws are still in the books. So somebody's being prosecuted today for child abuse. I think the government – The government, to bring the prosecution, would have to allege in the indictment and prove to the jury the facts necessary to make the conduct unprotected.
Divided Argument
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We may be exceeding... The article's not written yet. So there are some interesting questions about defenses versus constitutionally required elements sometimes. And so it depends on how you tweak the hypo exactly. But if you imagine that the point is that the statute as written can't constitutionally be applied unless we know something else, like some additional fact. Like Lopez, right?
Divided Argument
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So almost all guns found near schools have at some point moved to interstate commerce and so can be reached under the government's commerce power. But the government did not allege and prove that Lopez's gun had traveled under state commerce, and so the Supreme Court set aside his conviction. It didn't really explain why they were doing what they were doing.
Divided Argument
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I'm not sure they really thought it through. But under our view, that would be correct. The government has to indict and prove the jurisdictional element.
Divided Argument
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Well, I, that's, that's, I'm not sure about that. And that, that remains to be worked out too. So that, that would certainly, that'd be the easiest case of Congress.
Divided Argument
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Well, but under the normally correct first principles of severability, you don't ask in the abstract, like, is the law constitutional? You ask, is the action before the court, this constitutional, has the enforcement of this law against this person been within Congress's powers?
Divided Argument
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So the fact that the law in some other case would be out beyond Congress's powers doesn't mean that it's facially unconstitutional.
Divided Argument
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Well, but now imagine that the prosecution has indicted and proved that extra element. Yeah. If the statute had an extra clause that said, by the way, this statute can only be enforced if it's within Congress's enumerated powers, that would make it okay.
Divided Argument
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The government would have to prove the extra thing that it was within Congress's enumerated powers, but adding that sentence to the statute would make it okay.
Divided Argument
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It's interesting. The question is, to some extent, can the Constitution make up the elements? Yeah. Now you see exactly why it gets kind of tricky. I don't know if I buy that, but maybe. Okay. Well, when I actually have this worked out, I will bring it back on the podcast for you to take a look at.
Divided Argument
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I have to go pick up kids and so forth. We did not talk about Biarfa versus Mayorkas, the one that has been in the court issued. That's okay? I didn't have a ton to say about that one. You were running out the clock and I could tell.
Divided Argument
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Yeah. Although the immigration system here, so many cases that I think the right question is not really about this case. The right question is about like, how do we want to allocate the resources of the many administrative law judges and courts of appeals judges who hear these cases? And that still doesn't mean this is the right way to allocate them.
Divided Argument
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yeah i wanted this was a defensive unanimous opinion like there could have been broader grounds which was written if yeah we're not unanimous that's possible but we can save that for whenever we record again uh it will be sooner than i will say i i can predict you can predict it will be sooner than uh three months or whatever it was promises promises
Divided Argument
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I mean, I had many reactions. You tweeted about it a little bit. Yeah, so I think I heard this was happening. I mean, maybe I might have heard from you in real time. I forget. And so I logged on. And I will say when the file folder first came out, I was interested. I mean, I think, you know, Steve is a friend. I like him a lot. But he certainly ditches it out.
Divided Argument
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Divided Argument
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And so I thought, okay, maybe this is good. Maybe, you know, he ditches it out. Now he's going to get a chance to take it. And then I was really underwhelmed by the contents of the file folder. Like, I guess this is one question is whether hypocrisy arguments are productive or good and whether or not sitting fifth circuit judges seemly like there's lots of questions there.
Divided Argument
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My first problem is the file folder was lame. Like the supposed attacks on like that was a list of like terrible and temperate attacks he'd made on judges were like him just saying things like this case was filed in front of this judge or Judge Kuzmarek is at least as conservative as more conservative than many of the Northern District of California.
Divided Argument
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Yeah, this is a huge... I mean, again, yeah. So he submitted an article to a secondary journal at the University of Texas. And then once he was nominated, he pulled his name off the article and substituted the names of two of his colleagues at the organization where he worked, who had supposedly been the real authors of the article anyway.
Divided Argument
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And this then meant the article didn't have to go in his confirmation file. Yeah. And the defense of this was not lying to the Senate, is that it was actually academic misconduct rather than judicial misconduct, because he had never been the author of the article in the first place.
Divided Argument
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It had always been false to list him as the author, and he was just correcting the record by putting the real authors on the article. Which I find totally plausible, to be clear.
Divided Argument
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I find the, it was really academic misconduct rather than dishonesty to the Senate Judiciary Committee equally plausible. I have no real prior either way, but it's not like a great story. Yeah.
Divided Argument
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Yeah. Anyway, so I was pretty underwhelmed. I would have a just different feeling of the whole thing if Judge Jones had had a bunch of really good arguments and made them in an intemperate way that was arguably inappropriate for a sitting judge to make. Then we could have an interesting conversation. And I've had many students clerk for Judge Jones, and I'm sure they did good work for her.
Divided Argument
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And I really hope my students were not the ones who printed out those tweets and couldn't come up with something better. There's got to be something better you could have come up with. Yeah.
Divided Argument
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So the one other thing, slightly more on the merits, the one interesting talking point that both she and Judge Ho raised, which makes me assume this is a thing that Fifth Circuit judges must say regularly, so it's at the forefront of their minds, was that what about William Wayne Justice, who was a liberal district judge in Texas in the 70s?
Divided Argument
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uh and who from what i can tell i've been looking into this since the talk did seem to have a single judge division for a period of time in which a bunch of civil rights cases were filed in front of him and a bunch of sort of activist structural injunction stuff i did think it was interesting that that so far as i could hear steve never said oh yes that was bad and shouldn't have happened i mean he did say it's changing the subject and that there's plenty of criticism of that but i didn't hear him say that was equally bad so that was a little strange
Divided Argument
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you know the court of chancery you know right like yes that's why i don't understand the argument it just would have been i was just surprised i i would expect people who are against judge shopping now to at a minimum score the easy points of saying yes i am also against the irrelevant judge shopping that happened in the past rather than try to defend it now maybe people do say that i don't know
Divided Argument
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I also had this reaction that the fervency with which the judges in the Fifth Circuit defend their current operating procedures makes me more suspicious of them rather than less. So my view is some of these criticisms are probably correct. Some of these criticisms might be overblown.
Divided Argument
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Judge shopping happens all the time, but when it happens on a scale where it's sufficiently bad, then we do something about it. Like with the patent stuff, where the district has reformed its rules to make it harder for one judge to have all the patent cases. And I don't think he should be sanctioned for what he did up till now, but also it's good that now you can't do that as much.
Divided Argument
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Yeah. I'm totally going to get in trouble for saying this, but I believe that the judges in the Northern District of Texas, like Judge Hendricks and Judge Kaczmarek, are proceeding in totally good faith and are just doing what they honestly think the law requires.
Divided Argument
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And then it is a coincidence that their views of the law requires are sometimes quite outside what many other judges would think the law requires and not necessarily a bad thing. But it's a bad thing if the system is set up.
Divided Argument
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It's not a coincidence. What I mean is it's not like they are picking those results in order to make conservative things happen or something like that. Like they have views of the law requires and they're following them. Yeah, I mean, maybe, maybe not. I don't think it really matters because- Where do the initial philosophies come from is a deep question.
Divided Argument
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Exactly. It's bad. And then we ought to try to fix it. But then when things like the, you know, when the rules committee came out with these like case management practices to try to recommend the districts switch, you know, make it harder for that to happen.
Divided Argument
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And then there was this whole kerfuffle because maybe that's outside the jurisdiction of the rules committee, depending on how you read the statute and depending on what the rules committee did. And like the harder sort of- The Fifth Circuit is refusing to comply with that, right? Yeah, exactly.
Divided Argument
Aide-de-camp
Similarly, there have been several really quite heated mandamus battles in the Fifth Circuit where like a case is filed in the Fifth Circuit. Is that how you say that? Mandamus? You prefer mandamus?
Divided Argument
Aide-de-camp
I do say gerrymander rather than gerrymander, even though the original is gerrymander.
Divided Argument
Aide-de-camp
I mean, you just sound like Papa saying it that way. Yeah, well, I teach students both ways. I teach them at some point, somebody's going to say it's really gerrymander, and you have to decide how you... Anyway, there have been cases where the Fifth Circuit threatens to sanction people for trying to transfer cases out of the Fifth Circuit. And so those things, they make me suspicious, I gotta say.
Divided Argument
Aide-de-camp
I don't understand either. And again, I don't think Judge Jones covered herself in glory in this episode. I do think there are people, and I don't think you or Steve were among them, who too frequently jump to kind of bad faith explanations for what judges are doing. And I think that's a bad thing.
Divided Argument
Aide-de-camp
And I wonder if some of the Judge Jones was confused and has heard versions of the bad faith argument too many times before. And thus kind of like lumped you guys into the people making the bad faith arguments rather than the good faith arguments, which would not be exculpatory, but might be some words of this coming from.
Divided Argument
Aide-de-camp
I agree. And I do, I mean, look, it is possible that Judge Kaczmarek's death threats, some of them are causally related to the amount of attention he's gotten in this context. Yeah. It's possible that if Steve Vladek hadn't written the Slate article making him a household name that he wouldn't get as many death threats as he does.
Divided Argument
Aide-de-camp
I'm a believer in academic free speech, so I think that Steve is not morally responsible for any death threats that unhinged people sent just because they listened to what Steve said. But it's possible.
Divided Argument
Separation-of-Powers Police
Many, but let me try this. So it seems like one thing that does distinguish constitutional law from international law is the presence of the Supreme Court. And so it seems like much of constitutional theory is really scholarship about the U.S. Supreme Court and what it has done and what it will do and what it should do. And I don't know if you want it to be dismissive.
Divided Argument
Separation-of-Powers Police
You'd say many pieces that claim to be constitutional theory are really just long essays to the justices about why the justice should do the thing the author wants to do, dressed up in the language that the author thinks the Supreme Court justices want to hear.
Divided Argument
Separation-of-Powers Police
you could some of it could be better than that but it seems like there is even if it's not the world police exactly and it's there is this question about like well who watches the supreme court who makes the supreme court obey the law it does seem like you have this giant institution frequently engaged in the enterprise of of constitutional law telling everybody else what to do and everybody listens to it and does that does that break the analogy in a way we care about or is there a does that
Divided Argument
Separation-of-Powers Police
So can I push this hypo and maybe it'll end up with a different place? So I always love the hypo of, you know, why does the president obey the Supreme Court? Because he has line of first airborne and they don't. But I always like to push it one step further, which is that the president doesn't really have the 101st Airborne either.
Divided Argument
Separation-of-Powers Police
I mean, he can tell them what to do, but to the 101st Airborne, he's just one more elite person in a big white building in D.C. telling them what to do. So there's still the puzzle of why does the 101st Airborne care either what the president says or what the Supreme Court says?
Divided Argument
Separation-of-Powers Police
And maybe the reason that the president doesn't just tell the 101st Airborne to invade the Supreme Court is because he thinks they wouldn't listen to him either. And maybe part of the constraint here goes down at some deeper level about what is the rule that all the actual people with guns sort of accept and are taught.
Divided Argument
Separation-of-Powers Police
And then maybe part of the answer is that they all go to West Point or officer training school where they read the actual Constitution and told to believe in things like the separation of powers and that the Supreme Court has the power of judicial review. And they get the naive story.
Divided Argument
Separation-of-Powers Police
And because all the people who actually have guns are taking oath to the Constitution in a really naive way and given the really naive picture of constitutional law, they're ultimately following the kind of the naive rule of recognition. And I guess in international law, you call that the constructivist legitimation story or something.
Divided Argument
Separation-of-Powers Police
We'd say we've created this fake fairy tale about the separation of powers that a lot of people like to believe in for normative rule of law reasons. And we've successfully taught all the people that. who we trust with guns to believe in this fairy tale. But that seems like what's doing a lot of the work, just when I look around at the world. Is that wrong?
Divided Argument
Separation-of-Powers Police
Yeah. And then wouldn't it be, I guess, if you think about this, I'm thinking, okay, I've got a 300 million person coordination game in a really complicated and fractious polarized country. And how are we going to make that work? And, you know, at first that sounds like a really deep challenge.
Divided Argument
Separation-of-Powers Police
And then I say, but there's this one funny coincidence, which is that there is this like one piece of paper with like 5,000 words about how to plan the government that everybody already carries around in their pockets and everybody already like knows about and, you know, learn somewhere in AP government class. And so we do have that.
Divided Argument
Separation-of-Powers Police
And then it seems like almost every game theorist would say, well, that sure sounds like your shelling point, doesn't it? Hard to imagine coordinating around anything else and hard to imagine why you'd want to coordinate around anything else unless you tell me this document is like totally nuts. And so doesn't game theory kind of naturally lead us to positivist constitutional textualism?
Divided Argument
Separation-of-Powers Police
It may be. It may be. It may be I'm the worst possible target audience for this book because I'm already half believe it, but then I'm prepared to take it in a sort of evil direction, as Daryl suggested. Because the other kind of coordination, you can have coordination on written texts, like the Constitution, and then you can have coordination around
Divided Argument
Separation-of-Powers Police
you know, common law, unwritten rules and sets of adjudicators and systems that don't want those rules. And so the other great game theory project we once had was the general law, the unwritten law that judges and lawyers in every system in America sort of accepted as their unwritten law.
Divided Argument
Separation-of-Powers Police
And that's how they handle all the non-constitutional stuff, like the Lex Merchant and international law and conflict of laws and all that stuff. That system, it turns out, didn't work, right? That system was destroyed somewhere between 1870 and 1938, leaving us only with the constitutional system.
Divided Argument
Separation-of-Powers Police
So you might say of the two great experiments in game theory we had, one, the Constitution has survived, and the other one was destroyed by Erie.
Divided Argument
Separation-of-Powers Police
an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode. And I'm Dan Epps.
Divided Argument
Separation-of-Powers Police
At the level of constitutional theory, this seems like a really powerful argument against having the Supreme Court do a kind of roving balance of powers analysis, where they're always kind of looking to see, is the balance of power too much and rebalancing it? But you could imagine several alternatives.
Divided Argument
Separation-of-Powers Police
One, sort of what you described as having the Supreme Court do a roving balance of power analysis to something else, like groups or the outcomes that really matter or whatever. Yeah. Another alternative would be having the Supreme court just try to try to maintain a steady state. Like, so you might think, you know, the, we have, we're going to have these various institutions.
Divided Argument
Separation-of-Powers Police
They're going to have, and all the people are of course going to organize to capture the institutions because they have the power. And part of the whole goal of political power parties really are just like organizations to capture power, to, you know, fulfill whatever their coalitions want to want to do.
Divided Argument
Separation-of-Powers Police
And so you might think, really, the best thing this framework could do is just try to, like, hold everything constant. Like, whatever amount of power the president has, let's just keep it there. Whatever amount of power Congress has, let's keep it there. Whatever amount of power the states have, we'll keep it there.
Divided Argument
Separation-of-Powers Police
And that way there will be a firm, level, fair playing field for everybody to try to capture. And you might imagine just keep that constant forever, so we could just take whatever the balance of power was, say, at the founding, and just keep that exactly the same by just enforcing the exact same constitutional rules we've always had since the founding.
Divided Argument
Separation-of-Powers Police
You might call that originalism if you wanted to and suggest that would be the best way for the Supreme Court to react to this problem.
Divided Argument
Separation-of-Powers Police
Right. But some of this depends on how much you believe in the power of these groups and parties to evolve over time. Like, it's a good thing that the balance of power between the slave states and the free states is different than it was the founding. The free states, they managed to win all the institutions so deeply that, you know, we have a constitutional amendment. And so that's good. Yeah.
Divided Argument
Separation-of-Powers Police
And so you might think, if you really believed in some of the power of these non-constitutional institutions, you might think, well, even without an administrative state, the people who want effective government would capture enough of Congress, enough of the states to get one anyway. And we'd have to run it through the constitutional institutions. You'd have to have states do more.
Divided Argument
Separation-of-Powers Police
You'd have to have Congress do more. So it's only if we actually think these institutional choices do have some substantive bias or content that we care a lot about the functional adaptations. It's only because we actually do think the administrative state is on average more likely to do X than whatever institutions we'd have in the absence of the administrative state.
Divided Argument
Separation-of-Powers Police
And then that sort of pushes us back to where we started, that maybe it's not so silly to care about the balance of powers.
Divided Argument
Separation-of-Powers Police
Good. And then one more stab at originalism, and then I'll give up. So then you might think, given all this, what we really need to coordinate around is not the Constitution, not the document, because for all the reasons you said, that's going to lock us into something really tragic.
Divided Argument
Separation-of-Powers Police
But we need to coordinate around something we might call the rule of change, coordinate around the rule for changing the document. And as long as we coordinate around that... then the document will be able to evolve in ways we'll be able to accept what all the evolution is. And you might call that, I don't know, Article 5.
Divided Argument
Separation-of-Powers Police
I think that's the best way to coordinate around rules of change for the document. And that would, again, lead you to a kind of originalism. And I take it the response will be, the problem is that didn't work either, because that rule of change was also insufficiently adaptive and didn't do the things we needed to do.
Divided Argument
Separation-of-Powers Police
And so we had to coordinate around some other rule of change other than the one actually contained in the Constitution. And we didn't successfully do that. Some people think it's the Supreme Court, and some people think it's Bruce Ackerman, and some people think it's popular constitutionalism, and some naive people still think it's Article V.
Divided Argument
Separation-of-Powers Police
And until we can coordinate around that, constitutional law is kind of stuck in this place where it's not doing what it's trying to do. Is that the problem?
Divided Argument
Separation-of-Powers Police
Yeah, it's the whole thing. I mean, the kind of people who don't like the Chicago School have a whole series of Sherman Act originalist articles pointing out that Robert Bork was not alive when the Sherman Act was written, and that law and economics had not been invented when the Sherman Act was written, and therefore it must be something else.
Divided Argument
Separation-of-Powers Police
They usually then have a few stray pieces of evidence that the founders of the Sherman Act really didn't like big corporations as evidence that we should dislike all big corporations. The correct move is general law Sherman Act originalism. So the Sherman Act was written actually in the shadow of a well-established general law of unfair competition and unfair trade practices.
Divided Argument
Separation-of-Powers Police
And even the authors of the Sherman Act explicitly said, this is just going to take the things that the state courts are already doing and move it to a federal forum where, you know, more neutral judges handling these cases. Nobody's actually dug in to try to explain what the general law of antitrust as of the 1990s was, but that's the right move.
Divided Argument
Separation-of-Powers Police
Probably. I think the general law has always had a mix of custom and reason, a mix of what we think of as dumb positivism and a mix of using some sort of functionalist smart principles. Those two things have always been the elements of the general law.
Divided Argument
Separation-of-Powers Police
In the 19th century, lawyers always were kind of fighting about how much weight to give to each of those two things in a way that's not totally satisfactory. So yes, there'd be a little bit of both.
Divided Argument
Separation-of-Powers Police
And to do it well, you'd need somebody who was pretty sophisticated about economics and somebody who was sophisticated about history and jurisprudence, or one person who was sophisticated about all of them, I guess, to really kind of try to establish it.
Divided Argument
Separation-of-Powers Police
Yeah. I mean, now one claim sometimes is they had a much less polarized bar. The country is polarized in various ways, but a lot of what the lawyers in the 19th century called the general law might really have been general only as 19th century lawyers who all were kind of reading the same books and talking about the same stuff.
Divided Argument
Separation-of-Powers Police
and maybe even they were kind of the country's secret sauce, they had reached a set of norms and principles among themselves that were sufficiently functional that we could delegate certain things to them and be glad they were handling it well and responsibly.
Divided Argument
Separation-of-Powers Police
And it might be we don't have those people anymore because our lawyers probably are much more polarized than they used to be, down to the level of first principles. And so it might be that it's a consequence of the
Divided Argument
Separation-of-Powers Police
And as I understand this, tell me if this is wrong, you could think of the constitutional law scholars who haven't reconciled themselves to this question, who haven't asked if constitutional law is possible in two different camps. There are the people who think constitutional law is all bunk, and there is no constitutional law. This is probably most of my colleagues say things like this.
Divided Argument
Separation-of-Powers Police
changes in elite society and legal education that that mean we need somebody else one possibility obvious possibility would be to use the federal society which seems to be well made to do this and if we could all just agree to let them handle all of our problems we have nothing to worry about
Divided Argument
Separation-of-Powers Police
It's just an illusion to think there's constitutional law. And then you have maybe the naive people The naive people who think, oh, of course, there's constitutional law because it's a constitution and the Supreme Court follows it. And, you know, it's the most important kind of law. And I take it. Do you see yourself as saying something to both sides of that or are you on one side of that?
Divided Argument
Separation-of-Powers Police
We agree. I will confess, I did a bunch of media about qualified immunity in 2020 when Congress was thinking of abolishing qualified immunity. And all I'd written about is that qualified immunity is made up and the Supreme Court probably shouldn't have done what it did. But then people ask you all these consequentialist questions about qualified immunity.
Divided Argument
Separation-of-Powers Police
And it's clear you're supposed to say that you're confident that abolishing qualified immunity would lead to X and Y and Z. But of course, I've read enough of Daryl's work and people's work to know that it's very hard to predict with any confidence what would happen if qualified immunity was abolished. So I just try to avoid those questions.
Divided Argument
Separation-of-Powers Police
And I know you know this, but there's a fellow at NYU, Marco Basile, who has a paper about this very question about sort of How did constitutional law and international law split? That I thought was one of the best papers I read by a junior scholar or a fellow on a very long time.
Divided Argument
Separation-of-Powers Police
Yeah, I mean, there are many different versions of this, right? So you might get, well, okay, there's constitutional law in easy cases. You know, we do seem to have an electoral college. But any constitutional law question that makes it to the appellate courts, they might say, is one where there's sort of inherently no law.
Divided Argument
Separation-of-Powers Police
But some of this, and I'm, I mean, I remember hearing there was no such thing as international law, because it's just all politics all the way down. And, you know, the idea that there's international law is an illusion created by human rights lawyers and Harvard Law professors. I mean, that's implausible to me.
Divided Argument
Separation-of-Powers Police
And then once I accepted that drug, they told me, well, the next step was to recognize the same thing as true of constitutional law, which is an illusion made up by constitutional activists and Harvard law professors. So then I became nervous that all of this kind of law was an illusion.
Divided Argument
Separation-of-Powers Police
Well, my co-author, Steve Sachs, used to always press them at this point and say, you know, when they go up at the faculty parking lot, do they always get in their own car or do they take somebody else's? As far as I can tell, the law of the faculty parking lot seems to be real. Everybody seems to know who owns whose car and nobody violates that.
Divided Argument
Separation-of-Powers Police
But I take it, so the idea is that as to the faculty parking lot, and for that matter, contract law, there's a set of people who have guns called the Cook County Sheriff's Department, and to a lesser extent, the University of Chicago Police Department, although they don't do as much as they used to, but them too, who, you know, they will stop you from getting into somebody else's car, at least if somebody calls them, and they will come and take your stuff if you don't pay your contracts.
Divided Argument
Separation-of-Powers Police
Right. And so maybe the realist could say most of the time, I guess Oliver went to Holmes and say this, right? Most of the time I'm talking about law. I mean, the courts will tell the people with guns to come take your stuff and they will do it.
Divided Argument
Separation-of-Powers Police
And in international law, I mean, there are a lot of people with guns, but there's not like one set of, there's not the world sheriff's department that just enforces international law. And in constitutional law, there's not like the separation of powers police that come with guns and like stop people from violating the separation of powers, right? That's the challenge.
Divided Argument
Separation-of-Powers Police
There is this famous thing, the gel man amnesia effect, which is where you read the New York Times when it talks about something you know. You generally believe in the New York Times. You read the New York Times when it talks about something you know. You read the legal stories and you realize they're not very good.
Divided Argument
Separation-of-Powers Police
And then somehow you forget this fact and you fail to apply it to all the fields you do know about. And you think, oh, they must know about everything except the thing I know about. And I feel like for a while I was like that about international law. Like when people tried to convince me that international law didn't exist, I was like, oh, okay, sure, that seems right.
Divided Argument
Separation-of-Powers Police
And then they came and also tried to convince me constitutional law didn't exist. And I was like, well, wait a minute, that doesn't seem right. But it took me a long time to realize those are the same argument. And therefore, if I thought constitutional law did exist, maybe international law exists too. Can we get, though, like an example of how constitutional law is possible?
Divided Argument
Separation-of-Powers Police
So how is it that the people with guns, on your view – How is it that the people with guns and money sometimes listened to people without guns and money because of constitutional law?