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
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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
Double Negatives
Right. Right. And the court has even said it has to be clearly established by the holdings of Supreme Court cases. Right. So that's why – Not the dicta. Not the dicta. So that's what the court has to now hold that it was clearly the holding of Payne versus Tennessee that the due process clause forbids you to introduce large piles of prejudicial and irrelevant evidence. Right. Yes.
Divided Argument
Double Negatives
I mean introducing large piles of prejudicial and irrelevant evidence sounds bad. That doesn't sound like a thing we should do. When you say it that way, yeah. And the court does not hold whether this is in fact a large pile of prejudicial and irrelevant evidence, right?
Divided Argument
Double Negatives
It's still open to the court to say, oh, OK, now that we understand this is a due process question, Ed Pell requires us to ask whether it's not a due process. They're still allowed to say, well, it's only a medium pile or – right? Yeah.
Divided Argument
Double Negatives
The scope of the Supreme Court opinions is just a question of law. And the question is whether they then violate, you know, unreasonably apply That clearly established law.
Divided Argument
Double Negatives
So this was a challenge in the Northern District of Texas or the Eastern District of Texas. Sorry. The other jurisdiction that granted nationwide injunctions during the Biden administration. Be sure to update your calendars and your maps because we're soon switching to the District of Washington and the District of Hawaii. And now let's talk administration.
Divided Argument
Double Negatives
But on a question which apparently is now de novo, which is what is holding and what is dicta?
Divided Argument
Double Negatives
Well, would you? I think part of the idea is the per curiam is often something that needs to be done. It needs to get out the door. And you don't want people having too much pride of authorship because it just needs to get out the door. And so you're expected to be a little bit more impersonal, not, you know, not fret so much with the stuff you'd fret about if you had the pen.
Divided Argument
Double Negatives
I mean I think I said this in the last episode. They give Justice Curiam kind of all the dog assignments that just have to be done as a matter of duty. Yeah.
Divided Argument
Double Negatives
Yeah. So I think for a case like this, it could also be that person starts out writing, say, a dissent from denial of cert. So I was looking at the docket. This case has been relisted for almost a year. It was first distributed for conference in March 2024. And then was rescheduled from conference to conference until July 2024. And in July 2024, then the court finally asked for the record.
Divided Argument
Double Negatives
Which is usually what happens when someone is writing a summary reversal. Right. So it suggests to me – or it suggests to me somebody was already writing something saying, OK, we should get into this. They didn't yet have enough votes to get into it. And then maybe at that point – maybe at that point they had enough votes for some reversal.
Divided Argument
Double Negatives
Maybe just at that point they had enough justices who were now like open to it. Then they started trying to really dig into the record. Then since July 2024, then – It's taken until now for them to put this whole thing together.
Divided Argument
Double Negatives
Yeah. I don't – I thought it was the case that a relist was kind of the ad hoc decision. Like they go into conference and they come out of conference saying, OK, we're still holding this one over. Whereas the reschedule is what they knew ahead of time. They were like, OK, we're working on this. But I'm not positive that lines up with what's going on here. So I don't know.
Divided Argument
Double Negatives
I don't have an answer to your question. It didn't – It didn't read to me like it was obviously the chief's voice in this opinion. It could be.
Divided Argument
Double Negatives
I heard suspicion. Some people on the internet say this must be just a spirit.
Divided Argument
Double Negatives
They rehang a lot of the pictures. Yeah. All right. So the nationwide injunctions are all coming from somewhere else. But this was a nationwide injunction that came from the Eastern District of Texas against the Corporate Transparency Act, which passed in 2021, requires a bunch of filings that businesses find annoying.
Divided Argument
Double Negatives
And we have – I know it's not Thomas and Gorsuch because they dissent, right? Yep. I don't know. If you made me guess, I guess I would guess it's Justice Kavanaugh. Interesting.
Divided Argument
Double Negatives
I don't know. Just if – it's just a – it has a common sense aspect to it that I think this is just an injustice. We just shouldn't allow – I could see that.
Divided Argument
Double Negatives
I subscribe to both Claude and ChatGPT. I think Claude is better for legal stuff mostly.
Divided Argument
Double Negatives
And it was given a nationwide injunction at the Eastern District of Texas against
Divided Argument
Double Negatives
I know he said we should get rid of the law clerks. So my colleague Eric Glossner recently did this paper trying to test how does ChatGPT do as a judge? How does it compare to real judges?
Divided Argument
Double Negatives
Because there's this great empirical paper by Holger Spalman and folks at Harvard where they like got real judges to sit down and do kind of like a mock problem without telling them that they like varied the case. So, you know, half of them were given precedent and half of them were given a sympathetic defendant and the
Divided Argument
Double Negatives
The judges care much more about the defendant's sympathetic and not about the precedent. Shocking. Yeah. And then they did the same experiment on students. And students, unlike the judges, are formalists. They care about the precedent. They totally ignore the facts of the case and they just follow the precedents because they've been trained in law school to do that. Were they your students? No.
Divided Argument
Double Negatives
The SG – again, this is the old SG, Elizabeth Prelogger, went to the Supreme Court to try to get the nationwide injunction vacated and also suggested this might be a good time for the court to grant cert on the availability of nationwide injunctions, something that the SG's office in multiple parties has been trying to get the court to reconsider. And the court –
Divided Argument
Double Negatives
Harvard students. And apparently ChatGPT is like the students. ChatGPT insists on following the law, not the equities of the case, even though real judges are more distracted by the equities of the case. And part of what Eric found is that even when they try to train – they basically like –
Divided Argument
Double Negatives
They gave ChatGPT law and fuller and like tried to like teach it legal realism and tell it to be legal realism and it still refused basically. It still insisted on following the official story of the law. And so – Does this vindicate your approach to legal interpretation in some way? You know, you can read it either way.
Divided Argument
Double Negatives
But I think one easy takeaway, this is against interest for us as law professors, I think one easy takeaway is maybe you could replace law clerks with the AI. Because the role of the law clerks, apparently, as young law students, would be the people who are actually nitpicky about the legal details.
Divided Argument
Double Negatives
So the judge has a strong intuition the case should come out some way, and the law clerks say, I know, I know, but, you know, the precedents say this. And apparently the AI can do that just as well. And then if we want judges to sometimes ignore the law for some reason, maybe they can still do that.
Divided Argument
Double Negatives
No, because they're trying to start to replicate this kind of like – it's like a mock war crimes hypo. So it doesn't – they try to sort of replicate the things that have already been done. Oh, it's international law? Yeah. Well, that's totally different. Isn't that fake law? Yeah. I think there was a treaty or something.
Divided Argument
Double Negatives
The problem is they ran this experiment on a group of judges who all gathered at Harvard for a day-long conference, and they got them to do this at the break. After the cocktail hour? I think at lunch. But then the judges, the judicial conference, basically all decided this was terrible and judges should not cooperate with this anymore because who knows what else the experiments would reveal.
Divided Argument
Double Negatives
So you can't do any more experiments like this. We only have the one to work with.
Divided Argument
Double Negatives
Eight days? It's the eighth day of the Trump administration. Although in dog years, that's – or in constitutional years, it feels like it's been a lot longer. Yeah. All grant spending is paused right now.
Divided Argument
Double Negatives
Well, but if the university needs to allocate enough of the money to keep the science labs open, they might. That would be a problem. They might shutter us. Okay.
Divided Argument
Double Negatives
We are already getting some nationwide universal relief. You know, so the Trump administration last week issued an order redefining citizenship to eliminate birthright citizenship for people who are not children of those who are not lawfully present or even who are just on visas rather than permanent residence.
Divided Argument
Double Negatives
There's already been a universal nationwide temporary restraining order by a judge in Washington state. So I assume it's a matter of Weeks before that's at the Supreme Court, if the Ninth Circuit doesn't do something about it.
Divided Argument
Double Negatives
granted the application for a stay pending the disposition of petition for cert and said nothing else. Justice Gorsuch wrote a concurrence saying, you know, I agree with the government. I agree with the court that the government's entitled to a stay at the district court's universal injunction. I would accept the invitation.
Divided Argument
Double Negatives
Okay. So there's the current on the TRO, which is 14 days. My guess is they'll wait for the preliminary injunction. And then my guess is they'll go to the Ninth Circuit first, and that'll be fast. So I would give it February 27th.
Divided Argument
Double Negatives
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast.
Divided Argument
Double Negatives
That's not crazy. I mean, it also wouldn't be crazy to set up for argument for the first day in October, you know.
Divided Argument
Double Negatives
Right. If they have enough justices who don't believe in universal nationwide relief, so if the order will be in effect for all births – because the order is for all births 30 days from the order, so mid-February, then I might feel some pressure because there are going to be kids born here who do or don't get birth certificates while they're waiting around to decide it.
Divided Argument
Double Negatives
Well, the Trump administration has told everybody that the law is unenforceable and that they cannot have any penalties or damages for violating the law for the next – 200-something days. The administration has no authority to do this, but under the, there's a kind of great bootstraps.
Divided Argument
Double Negatives
Well, and under the rules of estoppel, because the administration has told everybody it does have the authority to do this, they probably are allowed to reasonably rely on it.
Divided Argument
Double Negatives
So probably, you know, as long as you don't look too closely at it, you probably can't be punished for violating an unlawful order that says you can't be punished for violating it because it's just sufficiently confusing enough whether they can do that So it might work. I got confused by all the double negatives.
Divided Argument
Double Negatives
I tried to do this a couple years ago and I was thinking about officiating a wedding in a context where I might not have the authority to officiate the wedding. Is that a crime? Probably not.
Divided Argument
Double Negatives
But the rule in many states is that as long as the couple reasonably relies on the representation of the officiant that they do have the authority, then the marriage is still valid. So I was like, I can officiate the wedding. And they were like, well, is that allowed? I was like, please don't ask that. Okay. I could officiate the wedding. Anyway, they found somebody else.
Divided Argument
Double Negatives
I would go further and take this case now to resolve definitively the question whether a district court may issue a universal injunction of relief. And then Justice Jackson wrote separately to say she would not grant the stay. She thought the government had not done enough to show the need to step in and vacate the Eastern District of Texas injunction.
Divided Argument
Double Negatives
There is a consent decree in the state of Illinois for the Society of Secular Humanists that allows them to officiate weddings.
Divided Argument
Double Negatives
Right. And in some places, including the Seventh Circuit, have held that to violate the establishment clause to discriminate against different types of officiants or different secular and non-secular officiants. I don't necessarily think that decision is correct. So I didn't want to make a free exercise argument I thought was wrong.
Divided Argument
Double Negatives
But you can pay the organization enough money that then you become a member and then you buy your way into their judgment because they have a consent decree. And if I become a member of the organization, I get their consent decree. So why didn't you do that? That was my backup plan. But when I tried to explain that, that sounded kind of fishy. So I was like, don't worry about it. Just rely on it.
Divided Argument
Double Negatives
It'll be fine. So what happened? They got somebody else. All right. In North Carolina, this really matters, though. So many people just go online and join the Universal Life Church or whatever it is, which is, I think, a fraudulent quasi fake religious organization. And in some states, including North Carolina, those marriages have been held to be invalid.
Divided Argument
Double Negatives
I think in North Carolina even, they've been held to be invalid even if the couple relied on it. They sort of vitiated the reasonable reliance rule. So you can actually potentially mess it up if you do it wrong.
Divided Argument
Double Negatives
So you would think at this point the justices would be aware that the political valence changes every four to eight to 12 years. So they would be capable of deciding the cases behind the veil of ignorance, having lived through it multiple times. Somehow that doesn't always seem to happen. So maybe this is the time. I don't know.
Divided Argument
Double Negatives
And do we think the Supreme Court is also fine with this? Like, you then imagine the court saying, oh, yeah, we decided Davis and, you know, we never meant for that to totally eliminate the exclusionary rule in all cases. But and now it seems to have because they could they could step in and take an exclusionary rule case.
Divided Argument
Double Negatives
My prediction is that they just don't actually have five justices who are willing to say they don't believe in universal injunctive relief. That they have three or maybe four who think that. And then they have three or so who think – Never say never.
Divided Argument
Double Negatives
Sure. I mean, the core of it is that Barnes was shot and killed by a Texas patrol officer in a traffic stop that started with unpaid traffic tickets or unpaid tolls, actually, I think even better. For a rental car. Yeah. Yeah. So it's a kind of, you know, we have it's one of these like many of these stops. Now we have the whole thing on video. So a lot of the facts are not that contested. Right.
Divided Argument
Double Negatives
And there's a sort of a roadside stop and some there's some confusion about exactly what happened and when. But at some point during the encounter, Barnes starts to try to drive off.
Divided Argument
Double Negatives
While the officer is kind of still there in the car and the officer has maybe slightly before, maybe not, has sort of jumped up onto the rim of the car door and starting to get carried over the car and so is in a dangerous situation, which he responds to with deadly force.
Divided Argument
Double Negatives
And so the Fifth Circuit held that this was not an unreasonable use of deadly force despite the very small nature of the – despite the very minor nature of the underlying crime and despite the fact that maybe the officer shouldn't have tried to step onto a car that was speeding away and then –
Divided Argument
Double Negatives
been surprised and that was dangerous, under this idea that you sort of have to consider only the moment of the threat. You should look at a snapshot and say, at that moment, as the officer's being hauled away on a car by a fleeing person, what are they supposed to do? And so the petitioner went to the Supreme Court and said, no, shouldn't you consider everything?
Divided Argument
Double Negatives
And that's, I guess, the question. I don't know. Oren, have I left out something?
Divided Argument
Double Negatives
It's because they're going to reverse the circuit and say you should consider all the facts.
Divided Argument
Double Negatives
Like we don't – maybe there will be an opinion that says they're presumptively disfavored or they're disfavored unless something, but they don't know what to say in the unless clause.
Divided Argument
Double Negatives
Yeah. Well, you know, there's a passage in one of the court's other infamous exclusionary rule cases, Herring v. United States, where the court says that the exclusionary rule doesn't apply to negligent violations.
Divided Argument
Double Negatives
But it doesn't apply to mere negligence. And they say this is objective. They say by negligence, we mean objective negligence, whatever that is.
Divided Argument
Double Negatives
Yeah, or – now maybe the problem is they also don't want to commit to saying they are available. The possibility that they're not available, the fact they have this specter of illegitimacy over them, maybe that actually helps focus the mind of the district courts a little bit. But I could be wrong.
Divided Argument
Double Negatives
Yeah, there's this part where Justice Kavanaugh keeps pressing and saying, you know, like, I think what people want to know is, you know, can you jump on the car? Do you jump on the car or not? Do you jump on the car or not? As if I mean, now, I don't know whether the court thinks it knows the answer to when you're supposed to jump on the car.
Divided Argument
Double Negatives
And maybe it's trying to set up for some version of, well, of course, we don't know. The ultimate question is, do you jump on the car? And we have no idea. And therefore, the officer wins. I take it as what he probably thinks, but.
Divided Argument
Double Negatives
The other thing I was going to ask is, Dorian, does it make sense that we rule-ify the searches stuff and don't rule-ify the excessive force stuff? Because they're both, from my naive mind, they're both Fourth Amendment searches and seizures. And so you'd think, I could imagine the case for just being standards for everything. I could imagine the case for rules.
Divided Argument
Double Negatives
But is there a good case for, like, there should be lots of rules for when you can search the car, but all standards for when you can shoot the driver?
Divided Argument
Double Negatives
And isn't some of this also set up by Scott versus Harris? That's the first of these excessive force cases where the court says, yeah, I mean, normally you would let these things go to trial, but it's on video. So we just watched the video. We're going to tell you whether it's unreasonable. And so it seems like maybe I'm wrong. It seems like there's a special civil procedure exception there.
Divided Argument
Double Negatives
Well, that I mean, so that's the reason you'd expect them to want to stop this practice is because once there's a nationwide injunction against a major federal program, it's very hard for the Supreme Court not to review it. And one thing the Supreme Court generally likes is being able not to do things it doesn't want to do. They like their assert discretion.
Divided Argument
Double Negatives
For videos, because everybody can watch them and have their own view. And then, of course, we know from like research by Dan Gahan and other people that it turns out you and I might both watch the video and not see the same thing. But that doesn't seem to.
Divided Argument
Double Negatives
Your anti-qualified immunity hawk? Yeah. I mean, you know, the – it has this rule sort of reminiscent of our habeas discussion earlier that like, well, when it's – you know, when it's really obviously unconstitutional, then there's no immunity. And sometimes these cases that turn on the facts, it can seem really obviously unconstitutional. But – Yeah.
Divided Argument
Double Negatives
It's also a little strange given where we started that we have the good faith exception exclusionary rule, which seems to keep the court out of a lot of cases because it doesn't really matter. You could imagine the same thing would be true of excessive force cases where the court would say, well, it's not really going to matter because ultimately the guy's going to get qualified immunity anyway.
Divided Argument
Double Negatives
They took this. I mean, now, you know, they don't take that many. Right. And maybe this is reminding them why. Maybe this case that they're living through and thinking like, oh, yeah, I remember why we don't take for the cases. What are we going to say? Does it really matter?
Divided Argument
Double Negatives
They like the ability to say, oh, gee, that's an interesting question. I don't want to have to think about. So you would think they would want more of an ability to stop random district courts from forcing things onto their docket. But so far, they seem to be willing to do it.
Divided Argument
Double Negatives
And I guess also the question is, what is the nature of the mistake? So I think here, you know, the officer, what they're trying to do is enforce the law. Like, I think everybody assumes that he is allowed to try to effectuate this traffic stop and try to stop somebody from fleeing. And so you might especially want to say the officer doesn't flee.
Divided Argument
Double Negatives
forfeit the right to use deadly force just by enforcing the law um you know the officer tries to pull over a motorcycle gang full of heavily armed uh gangsters that may be foolish but he's not using that you know unreasonably using force if he then gets in a shootout with them yeah
Divided Argument
Double Negatives
Yeah. Yeah. But I want to really bring it in by somebody saying, you know, officers, you really just shouldn't jump on the car. I mean, even if you're allowed to, we just like to remind you, don't jump on the car.
Divided Argument
Double Negatives
Yeah. I think there's a small chance the court will instead decide to get on one of these issues and say, no, no, we've you know, we're just going to we're just going to pierce through and say this was a reasonable use of, you know, reasonable use of force. I don't think that'll happen.
Divided Argument
Double Negatives
It would take more affection for Fourth Amendment cases and even, you know, quasi Fourth Amendment cases than I think the court has.
Divided Argument
Double Negatives
Yeah, again, so without the nationwide injunctions, they can still always decide to take cert and they can decide on their own timeline. Okay, we're ready to dive into this one. We'd like more time. And it's just a little harder. And maybe they can do more things like this, where district court grants a nationwide injunction. They stay it. It'll now work its way through the Fifth Circuit.
Divided Argument
Double Negatives
I could imagine Justice Kavanaugh getting the assignment actually and laying out in dicta, or maybe now it's holding, laying out, you know, we want to reiterate four basic principles, like sort of like reiterate some excessive force factors in kind of his argument.
Divided Argument
Double Negatives
common sense pro-cop language um but to remind you that like the officers make tough judgment calls the judges are not in a position to decide to jump on the car that said the fifth circuit was wrong to artificially limit the or even to the extent the fifth circuit artificially limited the inquiry we're now going to vacate and take another shot i can imagine him pushing to get that and maybe getting a chance to do that that's my that's my outside undercard prediction
Divided Argument
Double Negatives
Maybe the new administration has a different view about the Corporate Transparency Act and won't even appeal it. We don't know. So maybe this will be the new equilibrium is that there's a presumptive stay of every nationwide injunction unless the court doesn't want to.
Divided Argument
Double Negatives
So I think – also I think the way the question is asked is good. So I think it's unlikely to be the case that any state – takes the plunge to say we are hereby rebanning same-sex marriage or banning all contraception.
Divided Argument
Double Negatives
I think you could imagine Louisiana interpreting sort of what counts as abortion in a way that does block some major methods of contraception and then kind of re-triggers this question. I think you could imagine that happening. I think there are a critical mass of justices in the court who believe in stare decisis when they want to. I mean, which is good enough.
Divided Argument
Double Negatives
There are some justices who think, just as Thomas has said this, as Gorsuch has implied this, sort of it's wrong for them to rely on precedents that they think are wrong. They have a duty to overturn precedents that are erroneous. I think there's a critical mass of justices who think it's never wrong to follow precedent.
Divided Argument
Double Negatives
Like it might always be – you might always be allowed to overturn the precedent if you want to, but it's never blameworthy to follow precedent. And so it's easy to imagine Justice Kavanaugh and Justice Barrett and Justice Roberts all saying we have no interest in overturning Obergefell or Griswold. And I think they have no interest in overturning Obergefell or Griswold.
Divided Argument
Double Negatives
And so because we have no interest in overturning it, we won't. That's maybe a thin – Sometimes I say this and people then accuse me of being a Pollyanna and like trying to reassure you everything's fine. You know, that's a sort of thin reed in some sense to say it's up to the justices. And it's just a question of whether they want to.
Divided Argument
Double Negatives
Yeah, but there's enough of those hot button social issues that are not squarely resolved by precedent that that'll keep them busy without needing to open up new vistas.
Divided Argument
Double Negatives
The Constitutional Law Center at Stanford Law School, run by Michael McConnell, my former boss and mentor in many respects, is our host here. I'm told it's the first Constitutional Law Center live podcast recording, so we're a genre innovator. So I'm excited to do that.
Divided Argument
Double Negatives
Yeah, and I think – so there have been a request to the court to hold and abeyance the briefing schedule in four cases. I think in part the theory is that the SG's office needs time to talk to the rest of the administration and just figure out – How much is the EPA planning to change what they were doing before?
Divided Argument
Double Negatives
How much is the Department of Education planning to change what they were doing before? So they sort of – they need time for the client, so to speak, to formulate its positions and the SG can formulate its position. But I think those are just the four that are ongoing. I think the – they've also sent a note about some of the ongoing litigation about the constitutionality of the Voting Rights Act.
Divided Argument
Double Negatives
I think we can expect a change. Yeah. Um, and then I think what to do about the pending cases is also on the table, but they've got a lot of paperwork cases that have already been argued.
Divided Argument
Double Negatives
So the Biden administration, when they took over, in some cases what they did is they just sent a letter saying, we're not going to file a new brief, but you should know we don't agree with the brief that we used to file and we now agree with the other side.
Divided Argument
Double Negatives
Or just sort of identifying their new position for the record, but without actually going to the trouble to write a new brief, which is another option they have.
Divided Argument
Double Negatives
Uh, yeah, I think probably the big, I think we'll see a lot shaking out over the course of the next month or two. I mean, the other question is how much acting SG, uh, deputy SG Sarah Harris is, you know, how much she's going to do and how much she's trying to sort of keep everything warm for John Sauer, who will presumably be confirmed to be SG, uh, pretty soon.
Divided Argument
Double Negatives
Yeah, no, I think if you told me the Supreme Court summarily reversed the denial of habeas relief by the Tenth Circuit, I would say, wow, is it 2003 again? That's not a thing the court's been doing for a while.
Divided Argument
Double Negatives
Now, there is a kind of, you know, a thermostatic dynamic, right, where the court so clearly sends the message that in habeas cases governed by EDPA, the correct answer is no relief and you just have to figure out how to get there. That at some point, you know, people people take that message too much to heart. And then the court has to say, OK, well, we didn't mean like literally every case.
Divided Argument
Double Negatives
Right. And so you saw this in there were tons of summary reversals where a lower court found a denial of qualified immunity. And the Supreme Court was merely averse over and over and over again until eventually the Fifth Circuit, you know, granted qualified immunity on facts. So egregious that the Supreme Court said, well, you know, we didn't mean we didn't mean that.
Divided Argument
Double Negatives
So what part of due process does that violate? Is there just a right not to be painted as a scarlet woman?
Divided Argument
Double Negatives
So maybe this is my naive view about holdings. But I sort of always thought that if it was a case where the government won, then all the stuff in the opinion that's anti-government is dicta. Like, cause it's like the, you know, the ultimate holding is the government gets to introduce victim impact statements.
Divided Argument
Double Negatives
And then a lot of talk about like the limits of that or times they might not, you know, is in a sense dicta. Like when you're a, I think a lot of practicing lawyers are always like, what I really want are cases that have good language for us and in which our side won. Cause then I can say like, we know that it really made a difference here.
Divided Argument
Double Negatives
So we've had several interesting shadow docket stuff from the Supreme Court. You're worth talking about for a minute? Sure. Okay. One of these is a case on application for a stay, McHenry versus Texas Top Cop Shop. Did you see this one?
Divided Argument
Double Negatives
Although also what they said is there's another mechanism. Right. So they didn't say like what – how that mechanism works, like whether it actually violates – you know. Yeah. I mean often the court says you don't have this remedy. Don't worry. There's some other mechanism.
Divided Argument
Double Negatives
And to treat that as a holding that the other mechanism is like definitively available and this is unconstitutional in the mechanism, that's –
Divided Argument
Natural Side Effect
And that date will come back in a second. And just for people that are not super familiar, if you go to get this kind of equitable relief from a court, you want the court to order something, there's different versions of that. There's the quick version TRO, temporary restraining order. There's the kind of preliminary version, a preliminary injunction.
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So that will happen before the court has really conclusively figured out whether you're going to win. Although for all intents and purposes, in many cases, that is the whole ballgame. And then if you get to that point after the whole process, after we figure out who wins on the merits, then we can have a permanent injunction.
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And the idea that they're not appealable, is that just kind of a background principle or is there some statute that says you can't appeal a TRO? The statute says you can only appeal final orders.
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And you can't fit it into the collateral order doctrine, which is the doctrine that says certain things that are not final orders are final orders for purposes of appeal. Right. Yeah. Well.
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Don't do this while we figure out what the heck is going on. Let's order a complete and total shutdown of what's happening until we can sort it out. Nice callback.
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time to call on the audience i feel like you can tell the difference it's a little higher pressure right if i you know you know we do uh we don't go straight to tape on these studio episodes we do sometimes uh do a little editing sometimes both of us say stuff that's wrong and then we realize in real time and you say editor can you fix that can't do that in a live show yeah no several people said that we seemed a
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Yeah. And this office seems like one for which there's a reasonably good argument that the president should have removal power. It's not a FTC commissioner. It's single head of this office. It has investigative kind of core kind of prosecutorial type power that normally the president gets to wield.
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yes so they said you know you should get into it and the supreme court uh so it gives us like the procedural posture okay it just gives us the procedural posture it says you know the tro will expire you know in you know when was this was written uh when the when the filing was made eight days when the opinion was written five days and now TRO is expiring today or has expired today.
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Then it just says, in light of the foregoing, the application to vacate the order of the United States District Court for the District of Columbia presented to the Chief Justice and by him referred to the court is held in abeyance until February 26th when the TRO is set to expire. In light of the foregoing. Right.
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I have no idea what that means. I like what that is. When this came down, I was texting you and I was like, I don't understand. I don't understand the disposition. The disposition is nothing. There's no reasoning. It's just a statement of facts in light of the foregoing holding abeyance.
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This is like the apotheosis. This is the ultimate shadow docket. So we have Justice Sotomayor and Justice Jackson wanted to straight up deny, so do nothing. And then we have a dissent from the order holding the application in advance by Justice Gorsuch. joined by Justice Alito.
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So the obeyers are the Chief, Justice Thomas, Justice Kavanaugh, Justice Kagan, and Justice Barrett.
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They could have just not ruled on it, right? They could have just not ruled on it until today?
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Really? No one said that to me. Your friends are jerks. I think they... Tell them to say it to my face.
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Yeah. I mean, obviously they can read about it online, but I guess the clerk's office can just forward them whatever the district court does.
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Okay. So lots of little things to talk about that are kind of fun. We had a sidebar article earlier this week by Adam Liptak, and it's sort of a recurring kind of feature he does for the New York Times. which I love because he often engages with legal scholarship in a way that other Supreme Court journalists really don't do. He's profiled one of my pieces.
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Doesn't something have to move up through the chain? I assume the parties would just send a little letter, like an immediate letter or something.
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Yeah, it just still seems a little weird. Like we saw on Twitter that this thing got ordered. Let's go ahead and fix it.
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In light of the foregoing, in light of the foregoing, I'm just going to, I'm going to, I'm going to start using that all the time. I'm just going to say a bunch of things that don't explain anything. And I just say, in light of the foregoing, you're fired.
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All right. So can we just quickly talk about some of the other orders list stuff?
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So we have this statement from Justice Sotomayor, joined by Justice Gorsuch, respecting denial in a case called Gonzalez versus United States. And this one's interesting. This one is interesting. a Fourth Amendment issue.
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And the question is whether the Fourth Amendment incorporates an old common law rule that a police officer or an agent of law enforcement, they didn't really have the police hundreds of years ago as such, could arrest a person for a misdemeanor not That did not take place in the officer's presence. Without a warrant? Yes, without a warrant. The rule was a warrantless felony arrest was always fine.
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An arrest for a misdemeanor committed in the officer's presence, fine. But arguably, it sounds like there's a little bit of uncertainty on the common law authorities, but there does seem to be some form of a rule that just... The officer finds out that someone previously committed a misdemeanor, they can't go arrest that person without getting a judicial preclearance by way of a warrant.
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Yeah. And it's an interesting larger set of questions because the court has sometimes said the Fourth Amendment incorporates some of these common law search and seizure restrictions. The court has said, you know, under common law, there was, you know, a kind of default rule that police are supposed to knock and announce before executing a warrant.
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And so the court has said that is part of Fourth Amendment reasonableness, although they later said that there's no remedy if they violate that in a case called Hudson. But there's other things like that. There was also a common law rule that they were supposed to execute warrants during the daytime. And the court has never said that's part of Fourth Amendment reasonableness.
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So I think there's a bunch of things like this that could provide grounds for arguments that maybe there's more that the Fourth Amendment should – more rules that the Fourth Amendment should incorporate from the common law that the court has never held or incorporated.
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I'm sure he's profiled multiple pieces of yours in that forum. And here he is talking about a piece that's actually by a student, a student note by Calvis Goldie, our gold law student at Columbia, about summary reversals. It's actually kind of interesting. Mm-hmm. making the observation that there's been a huge decline, at least by percentages.
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sort of part of that conversation i mean they're they're thinking of historical common law rather than yeah i think it's certainly related to that conversation conversation you you and i have participated in in our respective articles i think it's it's not directly participating it's sort of like a third position i think that there's you know if you think about the way in which the fourth amendment might incorporate you know other sources of law the kind of
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And well-established traditional way of thinking about it is like, oh, yeah, maybe it incorporates all these old common law rules and go back and look at what the common law cases said in America and in England in the 18th century. Your claim in your scholarship with James Stern is that actually it's incorporating not necessarily just those old sources, but actually modern day positive law.
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And then my claim is that it incorporates common law, but as in my and Danielle's article, the Fourth Amendment and general law, the claim is that it incorporates kind of evolving common law. Not the common law frozen at a particular point in the past, but the ability for courts to continue to make common law – engage in common law reasoning.
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So it's kind of just like a third – it's the kind of more traditional position there.
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Yeah. This may have been some exception to this rule for Nightwalkers. Nightwalkers sound kind of scary. It's like creepy people that just walked around at night.
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So two justices interested. I guess those are the two justices I would have assumed would be the most interested. Justice Sotomayor likes defendants' rights. She seems to like Fourth Amendment cases maybe. And Justice Gorsuch likes looking to these common law rules and criminal procedure cases. So I don't know whether they'll be able to get two more people on this.
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Seems like there is some disagreement in the lower courts, but it looks like all the federal circuits have said no. So not like a great circuit split. Also, I was aware of this rule and the uncertainty about whether the Fourth Amendment incorporated it. I didn't know that actually a lot of States continue to follow this rule as a matter of state law. That's kind of interesting.
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That is quite interesting. I kind of would have assumed that they would have all expanded the power of arrest.
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Yeah, I was going to go there. There's not a clear constitutional line between those two things. Like there's not like a constitutional test for the difference. I think that it's sort of something that turns on state law.
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I think that is the traditional rule, but I'm not sure that that rule is a constitutional rule versus just the traditional rule that most jurisdictions follow. I guess I'm not sure. I remember looking into this some years ago and coming away with a lot of uncertainty.
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I mean, the absolute numbers have always been relatively small, but a decline in summary reversals at the court. Right. A form of shadow docket ruling.
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Yeah. That makes a certain amount of sense. Now that, you know, Here would mean that there's a much smaller universe of crimes to which this rule would apply to. Right.
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Yeah, if we adopted that argument. Yeah, I'm saying if we don't, if we just go with the kind of what is the label, there's not that many – there's fewer – Right.
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Yeah. Okay. Another one from Justice Sotomayor I also found interesting, if I can find this one. Woodward versus California. This is the Double Jeopardy one? This question is basically, you know, there are things – so if you get acquitted, if you get 100% acquitted, right, the state cannot later come back and retry you.
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But the question is there are certain kinds of – things that a court might do that maybe aren't labeled acquittal, but maybe they still have the same function of being an acquittal. So something could be a dismissal and yet nonetheless be an acquittal. The rule, as I taught it and understood it, is basically whether the order resolves
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some or all of the elements in the defendant's favor, some of the elements of the offense. So basically it's kind of like, is this about kind of saying there's not enough evidence, something like that, something in that vicinity. It doesn't have to be correct. That has to be what it's about rather than I'm dismissing because prosecution
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needs more time, prosecutorial misconduct, all sorts of other things that are not about basically the proof, the elements of the offense. And here, this California case, defendant was tried twice for murder. Both times, majority of voters wanted to acquit, but the jury ends up And then the trial court relies on this California state law procedure that allows a dismissal.
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And sort of says in doing that, well, absent new evidence, the prosecution would be unable to meet its burden of proof in subsequent trials. Dismissing would further the interests of justice, et cetera, et cetera. And so basically, long story short, the state courts have said, applying their own state law rule, this is – not an acquittal.
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The argument here is, well, there's a federal definition of what constitutes an acquittal for double jeopardy purposes. I think that's correct and that this qualifies as an acquittal because they came back nearly three decades later after getting some DNA and now want to retry this guy. which is kind of crazy. It's kind of a very unusual situation. It's an amazing posture.
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And kind of complaining about how they're inconsistent and unpredictable in those, right?
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And so she says, well, it doesn't make sense to grant this one because this argument was not presented to the California Court of Appeal. before it issued its opinion and was only raised in the California Supreme Court.
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But she says she concurs and encourages the California Supreme Court to address the question of whether the state law precedent can be reconciled with this court's federal jeopardy precedent. When would they do that, though? This is just a denial. It's not being remanded, right? Yeah.
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Yeah. I mean, there's this flagging issue. But like in some other case.
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So this guy gets screwed. I mean, maybe he can, because this is still in kind of an interlocutory posture. Right. Okay. Yeah. Maybe. So maybe he can, after conviction, make this argument.
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That one's kind of interesting. There's other ones we could talk about, but perhaps will not. There's this one, Pina versus Dominguez, which is a qualified immunity issue. Justice Alito dissents from denial, joined by Justice Thomas, annoyed that the Ninth Circuit found qualified immunity inapplicable in this case involving a fatal police shooting.
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Yeah, it's the kind of case that used to be on the summer reversal docket.
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Coalition Life versus City of Carbondale, which is a dissent from denial by Justice Thomas. Justice Alito doesn't join the dissent, but says he would have granted, saying that the court – Thomas saying that the court should reconsider its decision in Hill versus Colorado, 2000 case that upheld these buffer zones around abortion clinics.
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And I'm Dan Epps. So Will, the court is finally starting to give us some material to work with. It makes our jobs a little easier. We don't have to do one of those argument previews, which are a bit more work. Instead, we can just download some PDFs from the website and give you some medium-hot, lukewarm takes on them.
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I do think there's support among the majority of the court probably for reconsidering that decision, or at least –
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uh you know support for thinking it's wrong but couldn't muster any other votes here perhaps because there's this like footnote in the very last page of the opinion that says uh oh by the way the city repealed the ordinance right uh in the summer of 2024 but you know case not case is not moot because the plaintiffs wanted nominal damages um and that just may make this a little bit less pressing for people
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Yeah, I guess I'd forgotten this, that Dobbs in the psoriasis analysis said that Roe distorted our case law by leading to bad decisions like...
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I guess we should talk about actual cases in a minute. But one thing that's kind of interesting is that he calls out a Seventh Circuit opinion by Judge Sykes that had said Hill is incompatible with her most recent First Amendment precedents and just kind of notes opinion of Sykes, Jay, joined by Barrett, Jay. By the way, Justice Barrett joined this.
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But obviously she's – I don't know if that was bait in there to try to get her to come along, but it seems not to have worked. Yeah. Okay. I guess we should talk about actual merits decisions. We have gotten a number of them. We're only going to talk about one or two. Yeah.
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Yeah. So that does seem to accord with my general impression. I mean, there, there's no shortage of other shadow docket things happening, but your kind of classic error correction, some revs, as we say in the biz do seem to have declined.
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Okay. Yeah. Okay. Yeah. It's a healthy number. It's starting to feel like June. Yeah. I would say, you know, these are not, they're, they're kind of getting some of the clunkers off their desks, but some pretty interesting ones. And let's talk about, I'm not going to promise two. We've been going for a while talking about various tangents, but we'll at least get through one.
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Yeah, I don't know whose fault that was that that never happened, but that did not ever happen. So Glossop versus Oklahoma. I did dig into this one many months ago, and so I had to re-dig into it. But I remember some of it, and it actually looks like in a rare development, I took good notes last time. And so I can rely on those a little bit too. So one thing to note, so this involves a capital K.
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Defendant, Glossop, and there was a previous case about him, Glossop versus Gross, but that was a totally different case because that was a civil suit challenging Oklahoma's lethal injection protocol. Okay. Which he lost. Yeah. But then they didn't execute him, I guess. Yeah. I mean, they still want to. But that has not happened. And it's now.
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Spoiler alert, that will not happen, at least anytime super soon. Okay, so let me try to make this long story somewhat short. Glossop was charged with a capital murder of Barry von Tries. It's occurred, you know, 1997, really long time ago. Everybody agrees he didn't personally commit the murder and that it was committed by this guy, Justin Tries. Glossop was the manager of this.
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Sneed. Yeah, sorry. Justin Sneed. I don't know why I wrote that. Tries is the victim. Tries is the victim. Oh, terrible notes. Sneed, who with Glossop worked at the hotel that von Tries owned. Glasswood was the manager, Sneed was the kind of, person who got a room for free and maybe did some help. He doesn't seem like he was a great hire.
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And the state's theory was that Glossop paid Sneed to kill Fantrice and Glossop wanted to do this because he was embezzling money, was about to be fired. Whether that is true or not is disputed. Basically, the whole case depends on what Sneed said. There was no other direct evidence of any sort. There were some other kind of Things that were circumstantial, incriminating.
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Glossop had some money, wasn't totally clear where the money came from. Maybe he sold his TV, maybe not. But Sneed was key, right? Yeah. Glossop is tried and convicted. His conviction gets overturned for ineffective assistance. And then finally, he's retried and convicted in 2004. And that's the conviction that is the basis of this decision. So this case has been...
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kicking around now for more than two decades. A lot of stuff happened. A lot of people had reservations and raised concerns about whether maybe he's innocent. Sneed is not the most reliable guy. We'll get into some of that in a little bit. Various things happened, but basically the state finally
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turns over a bunch of boxes of discovery material, some of which certainly should have been turned over earlier as a result of the state's Brady obligations. And then the next year, the state finally discloses an eighth box of material. And what was in the eighth box is sort of what this case was. is about.
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And basically, you know, there was, there were some notes in that box that arguably, and we'll say why that's arguable in a second, but arguably showed that the prosecutor, Connie Smotherman, knew that Sneed lied on the stand when he testified that he had been prescribed lithium, but that he had never seen a psychiatrist.
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There's some other things that were disclosed that are in some of the other boxes that are troubling that are not like directly what this particular thing, because there's multiple, a bunch of different petitions for review that Glossop has filed. This case is about one of them.
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Yeah, and this is interesting. If you read the briefs, the red and blue briefs in this case, because actually the state of Oklahoma, via the attorney general, agrees that Glossop should win. If you read both those briefs, you don't see a picture of the notes, right? And then you have to read the brief for the court appointed amicus.
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Yeah. And so both Glossop and the state basically just say this establishes that Snead lied and that Smotherman and the prosecutorial team knew. Why is that? Well, apparently there was a jail psychiatrist, Dr. Tromka. And so Dr. Trumpet must have been Dr. Tromka.
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And that must have been Dr. Tromka prescribed it, and everybody knows he's a psychiatrist, and therefore this is a lie, and therefore this is a violation of a case. The pronunciation of which, I've had some disagreement about how to pronounce it. I think Seth Waxman, counsel for Glossop, said Napoo. How do you say it? NAPU versus Illinois?
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The judicial power of the United States shall be vested in one Supreme Court.
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It's N-A-P-U-E. But basically, there's that case and other cases saying it's a big deal if a prosecutor knowingly puts on perjured testimony. And that's worse, actually, than just failing to disclose exculpatory information, which is Brady information.
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We had a judge in the building yesterday, Judge Toby Heitens from the Fourth Circuit.
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Yeah, who is a judge who had argued a bunch of Supreme Court cases prior to taking the bench. He was an assistant to the Solicitor General. He was the Virginia Solicitor General. So a really smart guy. I think our students really enjoyed his visit.
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I mean, I do think if the prosecutor knows someone is saying something that's not true, they know that to be the fact. I think that there would still be the obligation to correct it. Okay. Right? I mean, so I'm going to pull back the decision. It talks a lot about whether the... prosecutor knew testimony to be false. Yeah.
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Okay. All right. So, but it is this weird thing about like, if you just read the defendant and government's brief, I mean, you, you come away thinking there's this like smoking gun note that says, you know, We're lying and let's not tell anybody. And then when you actually look at it, it does seem a ton more ambiguous.
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Yeah. And an interesting thing about this is that there is this alternate version of what the note might mean. Which is that actually this is a note about trying to recount Sneed's description of an interview he had with the defense side. Right. Lawyers or investigators. Right.
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And that is advanced not unpersuasively in an amicus brief filed by the DeVantris family by kind of famed victim's rights advocate and former federal judge Paul Cassell. But it's kind of relying on stuff that's not in the record to establish that.
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Which is weird. But, you know, I did remember it was one of those cases where I read the two kind of party briefs and I was like, okay, this is open and shut. And then I read the court opponent amicus and I read the Cassell brief and I was like, this is a lot more complicated. I'm really not sure about this one.
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And he moved for divided argument. Court denied it. I thought that maybe that would have been appropriate to grant it in that situation.
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Well, I mean, they could grant it and say, you know, argument shall be limited to evidence in the record. Yeah, that would be a theory. And someone could still advance that interpretation of the note. The note is in the record. And someone could advance that. And honestly, that seemed to me like maybe the most plausible interpretation of some of the other things on the piece of paper.
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He has not been summarily reversed. But if he ever is, I guess I'll follow up.
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All three of those are kind of questionable, like quite questionable.
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Yeah. So six to say they got it wrong, five to say they got it wrong and let's just fix it.
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And two in full dissent. So the full dissent by Justice Thomas, joined by Justice Alito. Justice Barrett is the one sort of in the middle. She joins the majority on jurisdiction- She joins them in agreeing that there was error below, but then doesn't go along with the remedy and would have just remanded.
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And so majority opinion by Justice Sotomayor joined in full by the Chief, Kagan, Kavanaugh, and Jackson.
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Yeah. Yeah. Okay. So yeah, a lot going on here, enough going on that we might never get to that second case, but who knows? You haven't told them what the second case would be.
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But it's smack in the middle of a discussion of these procedural limits, right? There's procedural limits on these kinds of successive petitions for relief filed in Oklahoma court.
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I find it quite ambiguous. It could be saying it's not based in state law, in fact. Right. Or it's not based in federal law, in fact.
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Yeah. I mean, but the question is, but the question is the law. Does the law mean federal law or state law? Right.
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Well, I mean, but maybe that maybe the Oklahoma Court of Criminal Appeals disagrees and thinks that, you know, thinks that these are circumstances where under state law, the attorney general is not supposed to confess error. Oh, yeah. Yeah. I mean, I just don't know. I mean, it's it's really not well written.
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But those are usually very different types of cases. Those tend to be... you know, a lot of cases where lower court is granted some kind of injunction and they're running to the court to roll it back versus the kind of core. I mean, I feel like, you know, there used to be a lot of criminal cases in both directions, right?
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And the classic example of that is a case where, you know, they're The court is relying on a state constitutional guarantee and federal constitutional law, and it's not really clear which one it rests on, right? That's a simpler situation.
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Because you clerked in the 10th Circuit and you confronted somebody.
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Yeah. We're going to find that there's jurisdiction. So that gets him in the door. Yeah. Now is able to make the federal constitutional argument that the state court should have considered. Yeah.
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Yeah, I guess to the extent that you believe the claim that the evidence – the court says the evidence establishes that the prosecution knew Steed's statements were false as he testified to them. I guess I don't, I think the evidence might establish that. I just, it's not a lot of evidence. Is Dr. Trump it? You know. Question mark.
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You know, like you said, the EDPA cases, the Sixth Circuit or the Ninth Circuit granted relief to some state prisoner on some Ground that really is hard to reconcile with the limits on federal habeas relief in EDPA, Anti-Terrorism and Effective Death Penalty Act of 1986. And those aren't moving over to other shadow docket things. Maybe lower courts aren't doing that as much.
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And the state, as I recall, confessed error on NAPU but not on Brady. I think that's right. Yeah. Yeah.
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Yeah. That would have solved a lot of problems. The other thing that's a little weird is. The court in kind of deciding that there's a problem with the verdict here also looks at kind of like other stuff. It looks like there's some evidence that shows that the prosecutor violated the rule of sequestration.
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in kind of communicating with Sneed's lawyer and arguably trying to get him to tailor his testimony in advance during the trial in order to make sure that he admitted, said something about stabbing the victim, because otherwise they were going to have a problem. That seems problematic, but it wasn't squarely presented in the particular petition that was on review here.
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So it's kind of like, oh, there's this other stuff floating around there.
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They just say additional conduct by the prosecution further undermines confidence in the verdict. Yeah. I mean, yeah, I guess that it's bearing on the prosecution's mens rea. Yeah.
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Although that seems like that should only apply in situations where someone, you have both the errors in front of you.
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They're not saying that's a separate, they're just saying it's part of the prejudice analysis. Right.
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Yeah. Okay. So they find a violation. Yeah. And then what's the remedy?
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Yeah. And I guess potentially decide whether state law authorizes a new trial or any other state law questions.
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Or that he wins on the merits, but state, yeah, there's some other reason. You can't get new trial remedy in this posture or something. I don't know. Yeah. That would be the normal thing to do, right? I would think so. So the court is just like, nope, let's just give this guy a new trial. This whole thing kind of has this feel like there's just been so much stuff.
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This case is just one of these capital cases that's attracted a huge amount of attention. The Oklahoma legislature commissioned an independent investigation that concluded that there were tons of problems. The attorney general hired a law firm to investigate. It found separately there were a ton of problems. The way Oklahoma –
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system of government works, the attorney general can't just let him go free. There's this board of parole. And that board split two to two on possible clemency for him because the deciding tie-breaking vote is the husband of the former prosecutor who had to recuse. So it's just like there's a bunch of – this whole thing just smells bad.
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And it sort of just seems like the court was like, you know what? We just need to reboot this one. We're just not going to let this keep going. And maybe rushing a little bit over some of the legal and procedural complexities here.
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I mean, that happened, I think, during the Warren Court desegregation era, too, is that there was sometimes cases where the Warren Court just realized that the southern state courts were not going to comply. So they would just say interjudgment for the plaintiff or whatever. Right.
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That's possible? I don't know. So yeah, I don't have a hypothesis. But certainly some of the bandwidth, I mean, they have finite time. They've got a lot of other tasks and leisure activities and travel. And so there just may be a limit on how much non-merit stuff they can do, or at least they're willing to do.
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It is interesting how it just seems like every year or so – this is sort of related to our summary reversal discussion. Every year or so, the court finds one of these capital cases that's just been plagued by lots of problems and gotten a lot of media attention and just very questionable in many ways and just basically says no. Yeah. Right. I mean, this is, you remember Flowers? Yeah. Right.
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Flowers was the guy who was tried six times over like 30 years. And, you know, there was, you know, plausible bats and claims and things like that. But, but the court kind of finally stepped in. It was just, you know. No. Okay. Overturned his last conviction. There's a great podcast series called In the Dark about that. I was a guest speaker on the kind of episode that came in after.
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So it was granted that happened while the case was – going on and service granted sort of late in the history of the podcast. So that's worth a listen. Foster versus Chapman. I mean, there's just like certain outlier cases that seem bad and they just come in and kind of fix them. And, you know, Glossop has won that lottery this year.
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government supporting you there, you know, quarter point amicus did do an able job for sure. But, um, this has maybe got to be a bigger win than expected, right. To just go ahead and get the final relief.
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It's not, I'm not saying it's not wholly outside the realm of possible, but it's just the big win. Yeah. Yeah.
Divided Argument
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Yeah. I mean, we're not digging into Justice Thomas's 40-page opinion, but it sounds like some of the factual points you were less persuaded by, some of the legal points, he seems to have decent arguments.
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It has a Yelp page, but no reviews. There's a TripAdvisor for the Best Budget Inn in Tulsa. I believe that there were two locations of Best Budget Inn.
Divided Argument
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Yeah. But I think they're owned by the same guy. I think they're owned by Von Tries. The one in Tulsa has one star out of five on TripAdvisor.
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To the extent that they're – I think it's understood and some of the justices have sort of confirmed this offhandedly that there is a rule or a practice of requiring six for a summary reversal that I do not believe was always the case. I think that's something that may have emerged more recently. Yeah.
Divided Argument
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Well, you're really just casting shade on the city of Oklahoma City, right? It's a lovely city. It has a lovely, lovely memorial.
Divided Argument
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Store.dividedargument.com, where we sell various types of merchandise. 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's a long delay between this and our next episode, it's because we've been held indefinitely in abeyance. The case is submitted and
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As the court gets the partisan ideological divide gets more skewed, it may make it harder to build those coalitions, right? So if there's six conservative justices, you can have six of them to do a summary reversal. But if there's a case that cuts in the other ideological direction, you'd have three liberal justices and they'd need to find three more.
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All of the others. Yeah. Although, I mean, the Liptack article does quote things where Alito in 2021 says, we have a practice of not issuing a summary reversal unless at least six of us agree.
Divided Argument
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Right. So, I mean, there is some, there does seem to be some six rule.
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Well, just from my understanding was that this was not the rule when we were there as clerks and that this emerged. I sort of heard murmurs that this had emerged after that fact, after that time period.
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But if you have five to summarily reverse, four who just want to deny, and the rule or the practice requires six, then you just deny, I think, in that situation. Right.
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Well, we need some inside reporting. Maybe we need some more leaks. Someone like Joan Biskupic can give us a deep dive on this. I am still stunned. This is tangent, but that we've ended up in this world where there's no time limits on our arguments. I mean, it's like we're back in the 19th century when people would come and just talk for hours and hours. It's so different.
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Weren't they like multi-day at one point? Sometimes, yeah, I think.
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I've listened to most of the arguments from this term thus far. I don't know if you're listening to most of them, but my impression is that the quality of the oral advocacy is quite high right now. Maybe on average higher than I remember it being in past years or at least a decade ago. I don't have a
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empirical study and i don't have a hypothesis for why that might be true but i've just i just feel like i listen to argument after argument after argument in pretty random cases and i'm just hearing pretty high quality advocacy uh including you know from some of the usual suspects but from some less well-known people
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Yeah. Like there used to be a lot of – like a significant chunk of people you would get up there and you'd just be like, gosh, this person is basically committing malpractice by coming up to the Supreme Court podium and has no idea how to do this, right?
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Don't you think even 20 years ago, I feel like you could always find a fancy person who would do it for free who needs the exposure?
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Yeah. Yeah. I'm not sure I've listened to every single one this term, but I don't think I've listened to one thus far, which there's a clunker, kind of a one where you're just kind of shaking your head. And I do feel like when I was clerking, we got several of those. Oh, yeah. I feel like in some prior years there have been. So I don't know. I would be interested in hearing from the
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scotus bar whether they agree with my assessment and if so if they have plausible hypotheses well they're gonna be biased but i'd be curious well not necessarily i mean there might be people who are members of the i mean supreme court bar who are very critical of other members of the bar right so i mean someone could think that they're a great advocate but you know the other folks are not so i'm not sure fair enough yeah that's interesting
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Okay, so we have this slew of orders list opinions and some shadow docket stuff. I guess we should talk briefly about Besant versus Dellinger.
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Is this the only one you think they'll get in the next few years?
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Yeah. And so he's something I, did you know what this was? Special counsel for the office of special counsel. It's something about the merit systems protection board. Yeah. I thought I would, if you would just said special counsel, I was like, Is this somehow related to Ethics in Government Act or something like that?
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me and you need to know how to turn on the right mic which has been a problem for you but and you yeah that was that one was also your fault though because you should have noticed one well you should have noticed one minus off i think i by the way am i on the right mic i believe so um we will uh we will hear from the listeners if you are not but you sound fine yeah i feel like the the studio shows also have a different vibe from the live shows even when we don't have a lot of
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Yeah. Okay. So the district court enters a TRO against the president, I guess, against the government saying – Secretary of the Treasury. Yeah. Dellinger stays in office until the court was going to rule on his motion for preliminary injunction. That was argued today, I believe, as we're recording this. Yeah. Because the TRO is supposed to expire today, right? Today is the 26th of February.
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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.
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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.
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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
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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
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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.
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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.
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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
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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
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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.
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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.
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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.
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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.
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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
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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?
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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?
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And so apparently the New York Times claimed that Will Levy sort of orchestrated the call or asked Alito if he wanted to take a call from Trump and then asked Trump to call Alito. And then according to the New York Times story, the beginning of the call was funny because both of them sort of thought the other one had called. Yeah.
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Alito was standing by for a call from Trump and then Trump thought that Alito had asked to talk to him. And so they're both like, what are we doing here?
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We're going to do some of this at Stanford in the class we're going to. Are we? Well, yeah, but not in the podcast.
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I thought so. I know because Steve Sachs wrote the piece on it in the Supreme Court review, and that edition has already been published. And we're still publishing the one for last term.
Divided Argument
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And these are both cases that are plaintiff friendly jurisdiction procedure type questions on sort of formalist grounds. Yeah. Is it a formalist arguments that help the little guy? Yeah. on kind of technical questions of jurisdiction and procedure. So the underlying case is actually kind of fun. It involves dog food fraud.
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It involves these companies that sell so-called prescription dog food for pets with various ailments.
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To clarify, the scheme is basically, there's no actual law. This is a prescription to buy the dog food. The companies just decide to tell you that they want you to get a prescription before you buy the dog food so that you'll feel like it's fancier and then pay a lot of money for it. You can buy the same dog from other people without a prescription.
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Right. Yeah. And what's interesting about that is when you try to bring a lawsuit about it, your suit has a mix of some state law stuff and some federal law stuff. It's fundamentally a state law fraud claim. But one of the pieces of evidence, one of the pieces of the claim are various violations of federal law, the federal FDCA and various regulations.
Divided Argument
Reference Check
So the complaint in this case originally alleges state law fraud. Yeah. in state court, but that has a bunch of federal law-y stuff in it.
Divided Argument
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The court seems to gloss... Well, they're clearly not independent federal law claims because there's no federal cause of action. But there's some federal law stuff there.
Divided Argument
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And so under a case called Grable, which we can talk about in a second, but sort of fades away from the case, sometimes when you have a state law claim that has some federal law stuff in it, some federal law ingredients, sometimes that makes it into a federal law claim.
Divided Argument
Reference Check
The Grable case itself involves a property dispute, but that implicates questions about IRS service or process and is deemed to be sufficiently federal. Okay. And sometimes not. And so the dog food companies, when this case gets filed in state court, they say, oh, there's enough federal law stuff in here that it should be in federal court and they remove it to federal court.
Divided Argument
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It's not clear whether that's right. That's the thing that the parties can dispute and the court doesn't take a position on whether it's right or wrong.
Divided Argument
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So what the plaintiffs then say is, okay, look, we're not sure we agree that this federal stuff makes these into federal law claims, but we'll just amend the complaint and drop it all. It's not important. We think we can make this claim just as a matter of state law without relying on the federal law stuff, so we'll just amend it and drop all the federal law stuff.
Divided Argument
Reference Check
Now we have a complaint that's purely state law claims. They say, look, now that we've amended the complaint, we don't belong in federal court because there's no federal law issue here, so we want to go back to state court. Sorry, I got us derailed. You explained before I got distracted, you explained that it was removed, right? Yes. Okay, great. Yeah.
Divided Argument
Reference Check
And so then that's the dispute the court has to face is, if you remove a case from state court to federal court, and then the plaintiff amends the complaint to drop the stuff that was the basis of removal, the federal law claims, what do you do? Yeah.
Divided Argument
Reference Check
And until now, until the Eighth Circuit got this case, everybody had said, you assess removal jurisdiction at the time of the cases removed, and we won't allow subsequent stuff to deprive us of jurisdiction. And that includes subsequent amendments to the complaint.
Divided Argument
Reference Check
All right. Yes. Under supplemental jurisdiction, if there are some federal law claims that bring you into federal court, then that also brings any other state law claims that are integrated within the state court.
Divided Argument
Reference Check
Yeah, that's floating around. It sort of depends on the definition of case. Does case relate to claim and stuff like that? But yeah, there are definitely some questions about the limits of that logic that I think are discussed in the new edition of the Hart and Wexler casebook that we got out this month. It's not my chapter, so I forget how deeply they're discussed, but I think so.
Divided Argument
Reference Check
So on the one hand, you have the maxim that we should figure out whether a case, whether there's jurisdiction at the time the case is removed. So most circuit states had said. What the circuit said instead is there's another maxim, which is that the amended complaint is the complaint. And for all purposes, you should just treat the amended complaint as the complaint.
Divided Argument
Reference Check
That's what it is to amend your complaint. And so if we just look at this complaint, this amended complaint, as if it were the complaint, there's no business federal jurisdiction.
Divided Argument
Reference Check
Yeah, it's gamesmanship adjacent. I mean, I think the... Just gamesmanship, right? Well, it's hard to figure out exactly what the game is. Because it's not like you get to go back to state court and then get your federal claims back or something. You got to go back to state court only by getting rid of all the federal claims. So it's quite... You pay a price to go back to state court.
Divided Argument
Reference Check
I think the gamesmanship would have to be in a case like this where it's ambiguous whether something is a federal claim or not. The idea would be, I guess, that you kind of profligately plead your quasi-federal claims. And then if you get caught, you take them out. And so you can afford to kind of fly a little closer to Grable. But it just doesn't seem very realistic.
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It's not a huge gain from doing that. If you get caught, you have to get delayed in this like back and forth removal thing, which plaintiffs don't really like to do.
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Yeah, I think I think they just have an instinct that if you're doing stuff like that, it's probably gamesmanship. But that's what I'm saying. Like sometimes take the obvious example. You settle a case. takes the case away from the judge, and the judge is usually like, okay, fine, it's settled.
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Right, but I think part of the thought process is also, we don't really belong in the federal forum in the first place. We could waste our time, because this Grable test is very complicated, We could waste our time in, like, a series of appeals, a decision about, like, are these elements enough to satisfy the Grable test that everybody knows is kind of muddy?
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Yeah, when you come for the live show, I'll figure out where I should take you. In my defense, Justice Alito knows who the leaker is. Justice Alito thinks he knows who the leaker is. If in the next week or two he wanted to come on the show and tell us, I feel like that might turn around.
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Or we could just say, screw it, it's not worth fighting about it. Yeah. Okay. One other interesting thing. When the speaker granted the case, the respondent added another question to the case, which was whether we should just overturn this entire Grable idea that state law claims that contain federal law stuff... can be in federal court at all, which also does have an originalist.
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There's a originalist family of scholars behind it. I bet you like that, right? You like that. I don't think so. I think it's Justice Thomas' view. In the early 20th century, Justice Holmes said the test should just be what is the law that creates the cause of action. Ashley and I will get drinks at some point, and he'll try to convince me about why he's right.
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I'm not sure it's right, because in 1875, when the federal jurisdiction statute was created, its stated purpose was to expand federal question jurisdiction to the maximum permitted by the Constitution. And I'm not convinced that the test turns on who created the cause of action because in 1875, it was like the pre-Erie world where we didn't think about causes of action the same way we do now.
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So it's like a rule, a formalist rule, but I'm not sure it's one that actually has original spaces. But in any case, the court says... You're unpredictable, just like the podcast. I try to pigeonhole you, but... And the argument did not get a lot of uptake. Would you be the swing justice on the court? In what? I don't know the question. Versus Anderson, I would have been the legislator.
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All questions, yeah. Yeah. So it didn't really get a lot of uptake, but also the court doesn't mention it, doesn't discuss it. And you could even imagine sometimes having that kind of like aggressive argument when you're the respondent might help get the court to unanimity on the smaller question.
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Like there might've been people who were like, well, if we have to get into it, yeah, I kind of want to overturn Grable, but let's just say that Ashley wins so we don't have to.
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That's a good question. I think some of these are points that have not come up as often in the Supreme Court.
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self-consciously written as a slightly elegant primer of diversity and removal jurisdiction and maybe designed to settle some things.
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I was wondering if either the First Circuit cases were thereby. Are these Boudin or Selya opinions who might sometimes get the J? Well, there is a way to find out. I'm going to
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Yeah, and there's another First Circuit case cited in the same paragraph that's also a Celia.
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Actually, we did a lunch talk on the TikTok arguments earlier this week with my colleagues, and Aziz insisted on calling it Pafaka. And the more he talked about Pafaka, the more people laughed.
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Well, right. So it has a two-pronged test that applies to TikTok and that has a definition of basically large apps and says that they cannot be controlled by a foreign adversary, which is a small set of countries, including China.
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And requires any TAC or any such company to divest, to be divested from its foreign control ownership if it wants to keep operating in the United States after January 19th, 2025.
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Correct. The president has the ability to issue a temporary extension if he makes certain findings, which the president said not to do. But at its core, what it says is that TikTok cannot be owned by a Chinese company. It can't operate in the United States.
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I just thought that... Although it's precisely written. If it said 270 days after the date of the act's enactment, then the dash would be wrong. But by eliminating the date...
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I think it was written by the Chief Justice. Okay. In part because I assume that it would have made sense for somebody to start drafting this opinion before the argument. Yeah. And the person who would be in the best position to start drafting the opinion before the argument would be the Chief Justice. Yeah.
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Well, it's ambiguous. Right. So on the one hand, they did not grant cert. I guess they did treat it as a cert petition. It starts as a request for an emergency injunction to stop the action going into effect.
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But the first page of the PDF says certiorari to the United States Court of Appeals for the District Legal Circuit.
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I find these days, one of the things that's popular to say when you say something that's wrong, is to then argue that you were, quote, directionally correct. I like that. Somebody, a listener who tried to rehabilitate Judge Jones's comments that we talked about in the last episode.
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Okay, tweet it. Okay. So I think what happened is this started as a set of emergency applications. And then on December 18th, the court said, the party suggested we could treat these emergency applications as a writ of certiorari. Doing so, the petition is hereby granted. So they re-characterized it as a cert petition. And they must have kind of lost track of the fact they'd done that.
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So I think it is not of the shadow docket. The interesting thing about this is there have been some cases, and I think the... OSHA cases about the mask and vaccine mandate under Biden, I think were just stays that were then orally argued and like got an opinion like stays, but they always stayed stay applications. This technically had certain grants. And so it technically became a merits case.
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I think. So why, why? I think probably that was a mistake. I think they probably made it per curiam because they thought it was like the OSHA case where they were deciding it on stays. And so they only remembered now. I only remember a few hours later today that it was a cert case, so it probably shouldn't be per curiam.
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I guess you could still say, and maybe you still have a per curiam sometimes for things that are super fast. I guess in Trump versus Anderson, was that cert? It might have been cert. I don't remember. You should know. Come on. I mean, that's your case. Don't rub it in. It's not my case. You've tried to block it.
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My Harvard Law Review article with Mike Paulson about the case just came out yesterday, finally. Yes, that was cert. So I guess it can still be a precarium like Trump versus Anderson. Hopefully it's a better opinion than Trump versus Anderson. Anyway, they seem to have lost track of exactly what they're doing, but it went from shadow docket to merits opinion in a very short time.
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And I think, I'll just say before we get to the substance, I think procedurally, this is another good one for the court. But they got this pressing issue, they had this deadline, and they tried to get it as good of briefing and argument and full consideration as they could in the timeline they had. And I think that was a good, that was the right way to handle it.
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Well, I agree with you that she wasn't right, but she was directionally correct, meaning she was against you and Steve. So that was good. I'd like to say I might be directionally correct on this. We might find out someday. I was not correct on my actual prediction that we would find out within two years.
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Right, because there they had two rulings. They had the shadow docket ruling the night or the day after the statute went into effect. Right. With the kind of Trump versus New York style, one paragraph opinion. And then they had the subsequent cert before judgment cert combined with the other case. There's a whole typology of these.
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And they've had some executions that are more like the OSHA case, I think, where they put the state of execution on the question on the argument calendar.
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Well, I went into that question, which is that I think when When they have an opinion where they know what they want to say, but they don't exactly know why, so the reasoning is going to be a little dodgy, they usually assign that one to Justice Curiam because he doesn't have a great... Nobody wants to take the hit.
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In fact, the court says in a footnote that ByteDance clearly does not. Because it's a wholly foreign entity. Or to the extent that ByteDance's asserted expressive activity occurs abroad, that activity is not protected by the First Amendment. I guess that's different.
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Well, are we going to learn more about this over time or are we going to learn less over time?
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So the problem, I mean, this is the problem with this law is it presents several hard questions. One is, does this case implicate the first amendment? And that's, she says, no. And so it's easy way to resolve the case, but like, it seems like a big deal to say this, this doesn't implicate the first amendment because it's a national security ban on foreign average ownership rather than speech. Yeah.
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Or what level of scrutiny applies. That's potentially very important. And then, as some justices in the lower court said, like, does the law pass strict scrutiny?
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Which is also a big deal because so few laws pass strict scrutiny, especially in the First Amendment context, that any precedent saying this law passes strict scrutiny sort of establishes an important precedent that could be used in other strict scrutiny cases.
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And so one challenge for the court was how to decide this in a quick way that they could all agree with without saying anything about any of those questions. Yeah.
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And there was this discussion and argument about sort of, is this just a law regulating corporate structure? And the chief asked Noel Francisco, a representative of TikTok, can you think of any precedent where we've treated a law about corporate structure as violating the First Amendment? Noel Francisco said, I couldn't really think of one. Which I thought was odd.
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That he didn't have one at his fingertips. Yeah, I thought it was odd. Shouldn't he have said Citizens United? Like, isn't that a case where the court says, look, you want to fund this movie, if you do it with a PAC, it's fine. If you do it with a for-profit corporation, it's not fine. It's the law.
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Like, this law required a certain level of separation between the PAC and the underlying bad guy, the corporation. Yeah. Yeah, I was wondering that myself.
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Maybe it's the same. Well, Malcolm Stewart at least kept saying in the first argument was, it's fine to do this as long as you structure it in a certain way. You've got to structure it by doing it in a pack that raised the money for that purpose.
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I was going to say, it's not a great answer because foreign campaign contributions are usually thought to be unprotected. So if Congress had a Citizens United-style law that said, well, corporations that are worried are funneling foreign money in have to divest or something, I assume that would be upheld. Anyway, I thought it was weird not to see campaign finance laws talked about.
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Okay. So go ahead. Then the next question is, well, okay, if the first one was implicated, how do we say it's okay? And I think some people, some of my colleagues assumed what the court would do is say strict scrutiny applies, but the law satisfies strict scrutiny. Or maybe we assume strict scrutiny applies and the law satisfies strict scrutiny, but the court did not do that.
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It instead decided that at most intermediate scrutiny applies because the law does not regulate the content overview point of TikTok's speech. That I thought was surprising. Why? Why do you think that was surprising?
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Well, I'm not saying it's wrong exactly, but when I first read the law, I thought, of course it regulates the content of TikTok's speech in the sense that if TikTok stopped operating TikTok, and just said, from now on, we're only selling widgets on Amazon or operating a recipe site or something. I had assumed they would be not covered anymore.
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And thus, the law really did turn on the content of their speech. What the court says is, because TikTok is singled out by name in the law, that's not true. Like maybe other companies that are being included because they satisfy the definition of people who run companies, et cetera, et cetera, maybe they could make a content-based argument.
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But because TikTok is named and it's covered no matter what it does, the TikTok-specific designation doesn't turn on its speech. If TikTok stopped operating TikTok... it would still be covered by the law. Okay.
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I'm not saying it's wrong. My reaction, I don't, I don't remember that. Maybe that was discussed at argument and I just didn't pay as much attention to that part of the argument.
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So I feel like I don't know enough to know whether that's obviously wrong in some way, but it's a clever dodge and it's the kind of work I expect from Justice Curia.
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Threatening us. Okay. Okay. So then that this data justification, while you could find out whether it's out of strict scrutiny, because maybe there are other things you could do. Court says, look, for intermediate scrutiny, this is good enough. The government spent several years bargaining with TikTok trying to find a workable solution before they concluded it wasn't going to work.
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I'm not sure that... I think in front of the Supreme Court, they didn't... Yeah, yeah, yeah. The justices had access to it, I believe, right? I don't... I mean, yes, they had access to it.
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And I think, yeah, and I think we just don't know, like, did the justices, like, also wall themselves off from it? Like, not... Look at it, or they look at it, and then decide not to consider it, or I don't think we know that. They must have looked at it to say about the reasoning. I don't know. It's not bad reasoning, is it?
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Or they could write the tell-all book. It could be Confessions of a Supreme Court Leaker, and then it could talk about all the things they saw that were terrible.
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And the court doesn't rely on that. And I think there's a, I think it's O'Brien, I think doctrinally the official story is the fact that some legislators supported this law for totally impermissible reasons is something we ignore in a speech case.
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So point one, the court rightly refrains from endorsing the content manipulation justification. Okay, good.
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This is Kennedy often. Yeah. He didn't cast against his scrutiny, but he seemed to abandon them sometimes in a case where
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Fourth, whatever the tier of scrutiny, I'm persuaded the law before us seeks to serve a compelling interest, preventing a foreign country designated by Congress and the president as an adversary of our nation from harvesting vast troves of personal information about tens of millions of Americans. And finally, the law is also adequately tailored.
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So he comes closer to saying, maybe we should uphold this under strict scrutiny. Although, again, he doesn't really want to get into labels. Yeah. I also like the last paragraph of his opinion. What's going to happen is unclear.
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But then he just says, given just a handful of days after oral argument to issue an opinion, I cannot profess the kind of certainty I would like to have about the arguments on the record before us. All I can say is that at this time, under these constraints, the problem appears real and the response to it not unconstitutional. Which is just like a little dose of humility, which I like.
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I like seeing that. I mean, I think it's appropriate in this. The question is to decide the case. They have to do their best. But I think just explicitly acknowledging or maybe giving a little bit of a thumb on the scale to upholding the law because... We don't have a lot of time, and we just gotta do the best we can, I think is a nice thing to.
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Embarrass the future. Yeah. Which I think is something the chief has used before. And then it says, the caution is heightened in these cases, given the expedited time allowed for our consideration. Our analysis must be understood to be narrowly focused in light of these circumstances. A little bit like the Bush versus Gore line.
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So we talked about Trump might file a brief and then it might even make sense for the court to call for it because you might want to know either in thinking about some of the stay factors or in thinking about how seriously to take these justifications.
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You might want to know in trying to either evaluate the stay factors or in trying to think about how seriously it takes with these justifications, whether President Trump agreed, whether or not he thought the security concerns were less serious and why, and things like that.
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Trump filed a brief, I guess, in his personal capacity, authored by John Sauer, the person who represents Trump in his personal capacity, but his but announced to be the future nominee for Solicitor General of the United States on behalf of President Trump in support of neither party, which took no position on the merits, and whose one ask was that the court delay things until Trump took office.
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Yeah, like in the statement of the interest of the amicus curiae, the interest of the amicus curiae is that he's the most successful person on social media ever. That's not obviously wrong. Yeah. Right. It was criticized for its tone. It was criticized as well by folks like Steve Vladek for the fact that its request did not seem to be super well grounded in conventional legal sources.
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Like it's not quite clear on what basis the court would just kind of delay things. Although the court does issue these administrative stays sometimes to buy time while deciding a case whose exact basis is a little unclear. Controversy about that. And at oral argument, I think just one of the justices, maybe Justice Alito, asked the SG, Braylugger, Like, would you be okay with us doing that?
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Or would there be any reason that that would be illegal? And she said, I think you could do it if you wanted to. The court didn't want to.
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Well, so one of the things we're saying is that shortly before the decision was issued, President Biden announced that he was not going to enforce this law. Yeah, what does that mean, though? I think the law imposes fines on people who cooperate in distributing and hosting TikTok. Yeah. So he's not going to do it.
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We know that... But Trump... But I mean, the fines wouldn't be imposed until he had left office anyways. Well, right. So there's an interesting question in general about to what extent you can be punished for...
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violating the law when you got an authoritative statement by the head of the executive branch that the law is not going to be enforced in the interim there's a sort of debate about like does that operate as a does that mean that president trump could collect fines for the conduct during the time you relied upon the biden memo or not so it's a little vague
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It could both be unlawful and effective. It's possible that the Biden is not supposed to do that. It's a violation of the take care clause, but his doing it might. Now, I don't, I assume if you're TikTok, you probably have called president Trump by now to find out what he's going to do.
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And if he's going to take office and his first executive order is going to be to pause the enforcement of the act for 270 days or something like that. Then you might not go dark.
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And of course, there's also a question of, we've been told that there's no way that ByteDance will agree to sell TikTok with the algorithm. Yeah. When is being going to be forbidden by the Chinese government for doing so? Yeah.
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But you always wonder whether any of that was a negotiating position or whether at this point they would be willing to let it go with a worse version of the algorithm or what. So we'll find out. I mean, I won't find out because I'm not on TikTok, so I wouldn't know if TikTok went dark.
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I'll read about it on the uncool, being a middle-aged dad, I am on TikTok and Blue Sky and a little bit of Facebook. So I'm sure on those old, old-gen social media, they'll at some point mention whether the kids are still on TikTok or not.
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Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please keep the emails and even occasional voicemails coming. If you are in the Stanford vicinity and want to come to our live show in a week and a half, look for us there.
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So very, very unfortunate. Yeah. For years also before the Supreme court finally had electronic filing. If you wanted to see the briefs in a case, you would go to SCOTUS blog, which would have gotten them from various sources and linked to them. Yeah.
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SCOTUSblog had also had some changes at SCOTUSblog lately, hadn't they? Just this term announced they were no longer going to do coverage of every case, which they used to do.
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Yeah, we don't usually do timely takes, so this is going to be a new experiment for us. Yeah, I don't know if it makes up for the, what was it, like a two-month delay?
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There have been quite a few things, but in the interests of getting onto our main event, let's just flag one order in a pending case that the court issued. It feels like ages ago, but I guess it was just eight days ago. Docket number 24A666, Trump versus New York. This is a fortunate docket number. They just play them as they come up, I think.
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This was a last minute shadow docket filing by President-elect Donald Trump to try to stop the sentencing in his New York criminal conviction with various arguments about, he has various arguments on appeal about the way in which the case implicates the immunity recognized in Trump v. United States, as well as how it's going to intersect with the related doctrine that an actual sitting president can't be indicted.
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Of course, he's, even as we record this, not yet a sitting president and wasn't.
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There's an OLC opinion saying it. And then there is a now Supreme Court opinion, Trump versus the United States, that states that as well.
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In any event, and there are some interesting arguments that the president-elect actually is an official government position. There are laws about the presidential transition, the resources and classified materials.
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He has a status. He has a federal office in a way. I mean, it's not an office you take an oath to take. Anyway.
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So he asked the court to stay his sentencing, and the court issued a one-paragraph order, the one on the orders page rather than the opinions related to orders page, that said, "...the application for stay presented just as a Sotomayor, and by her referred to the court, is denied for inter alia the following reasons."
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First, the alleged evidentiary violations at President-elect Trump's state court trial can be addressed in the ordinary course on appeal. Second, the burden that sentencing will impose on the President-elect's responsibilities is relatively insubstantial in light of the trial court's stated intent to impose a sentence of, quote, unconditional discharge after a brief virtual hearing.
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Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.
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No, I think the willingness to dissent, well, I think the willingness to dissent already sends the message you might want to send as one of the dissenters. And, well, maybe that's just my, I'm not sure what the dissent would say. Well, I mean, they could explain why they would grant the application, right?
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Well, the good version is that I think the majority issued exactly the kind of explanation I would like to see more of in the shadow docket, where it's short, specific enough to give you a sense. But they say, look, there could be more. I think that's about what they could responsibly say in this time frame.
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Those are two points that are helpful, and they may not agree with themselves exactly how much weight they bear. But you can certainly imagine, and people talked about this, if the judge had said, I'm going to sentence Trump to 10 days in jail, he's going to go straight released from jail at 1159 on Inauguration Day.
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You can imagine thinking that's going to burden his role in the transition or something that we care about.
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Would you like to find some excuse to derail us in an unproductive 45-minute conversation about legal ethics?
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There was a follow-up story in the New York Times, I don't know if it's that read it a little bit of color, which is that apparently a group of other people in Trump world were trying to block Will Levy as not being especially conservative because he was tainted by his service for Bill Barr, who is, as listeners of the podcast may not realize, Bill Barr is regarded as a squish by the new Trump administration.
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Because of his unwillingness to- Because he believed in some basic rule of law? I think that he believed that Trump lost the 2020 election and that he did not help prosecute non-existent voter fraud and so on. Are you willing to say it was non-existent? Yeah. I mean, I'm sure somebody's somewhere committed voter fraud, but not material.