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Divided Argument

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Tue, 17 Dec 2024

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After an unpredictably long hiatus, we're back to break down what we missed. We debate the off-the-rails FedSoc panel Dan was on, work through some shadow docket happenings and the Court's two recent DIGs, ponder the implications of the election on the Court, and briefly discuss the first merits opinion of the Term, Bouarfa v. Mayorkas.

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3.32 - 17.479 Unknown

The judicial power of the United States shall be vested in one Supreme Court. Unless there is any more question, we have to find an argument in this case. All persons having business before the Honorable Supreme Court of the United States are admonished to give their attention.

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20.069 - 25.955 Will Bode

Welcome to Divide an Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode. And I'm Dan Epps.

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26.415 - 42.53 Dan Epps

So we got to the stage where we've been getting a lot of emails asking for proof of life. It has been a little bit longer than it should have been since our last episode. I don't think we have any one excuse. Decent one. So you were teaching five days a week all semester?

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42.55 - 43.471 Will Bode

Yep, that's true.

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43.711 - 62.456 Dan Epps

That's something like... Like a real job. Yeah. For non-law professors out there, that's quite unusual. The idea that a law professor would do their job, not just one or two, but five days out of the week is pretty extraordinary. I assume that means you don't have to teach much for the rest of the year, though. I've got some seminars, but yeah, that was my heaviest lifting for a while. Okay. Yeah.

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62.636 - 69.758 Dan Epps

I had my heavier teaching this fall. Other stuff, I don't know. You got your wisdom teeth out, apparently, decades later than the rest of us.

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70.158 - 71.018 Will Bode

I was always a late bloomer.

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71.331 - 88.035 Dan Epps

Yeah, well, you know, you're just unusually wise. You've been holding onto that wisdom for longer, possibly. I had an extra wisdom tooth. I had five. But you didn't keep it, so you lost the wisdom. Yeah, no, and I lost it early. That's the fun fact about me for today's episode. Any other excuses?

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88.055 - 89.955 Will Bode

I don't know. What else have you been up to?

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89.975 - 107.975 Dan Epps

So I was on this Federalist Society panel at the National Lawyers Convention, which I went to. Where were you, by the way? Teaching. Teaching. Okay. I thought like, what is the world coming to when I go to the Federal Society National Lawyers Convention and you don't bother? Have they taken your card away or something?

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109.696 - 110.036 Will Bode

Not yet.

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110.297 - 122.265 Dan Epps

After all that Trump stuff. So lots to say about that. We can talk about that later, I guess. Anything else excuse-wise or is that, I mean, that's not great. We could probably do better than that.

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122.845 - 128.409 Will Bode

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.

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128.649 - 142.098 Dan Epps

But yeah, there was no conscious decision to do that. There was actually one point at which we had a recording session on the calendar and something you were like, oh, can we reschedule? And then it kind of fell apart and we did not reschedule.

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143.539 - 145.68 Will Bode

Unscheduled. Unscheduled. That's what our motto is.

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146.001 - 165.877 Dan Epps

Yep. And I'm not going to apologize for the delay because we are very clear with people that we make no promises. But we hear you. We know you want more episodes. And I think we will do so more regularly in the spring. And the show's sweet spot has always been that period of time where the court is grinding out the opinions.

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166.437 - 175.283 Dan Epps

Those are a little bit easier for us to respond to in real time than these kind of amorphous case preview type episodes. Yeah.

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175.783 - 176.704 Will Bode

Yeah, I agree.

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194.646 - 215.611 Dan Epps

Friend of the show, Cannon Shamigan. Friend of the show, Steve Ladek, now a law professor at Georgetown, previously at Texas. And Fifth Circuit Judge Edith Jones. Who is, so far as we know, not a friend of the show. I didn't get any indication of friendliness towards the show or really- Anime the show? My guess is she's not really aware that the show exists, which is fine.

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216.391 - 235.709 Dan Epps

But the panel, I kind of gave a spiel I have done in various places kind of about here's why I think the basic way we divvy up Supreme Court seats is kind of problematic and is causing kind of long-term breakdown of norms and That is ultimately bad for everybody and we should consider reform.

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235.789 - 261.526 Dan Epps

It's the premise of the short article I wrote in the Minnesota Law Review Symposium, which you also had a couple of years ago. And I think it's something similar to what I'm going to say. You and I are both trekking out to Stanford to speak to a class out there about these topics. So not a super fiery pitch. And Cannon gave a version of a speech he gave at Duke about here's why court reform is bad.

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262.406 - 272.368 Dan Epps

so forth. And why the bar needs to stand up for the legitimacy of the judges. Yeah. And I like Hannah and I've given comments on that speech and I think it's fine. I don't agree with much of it, but I don't object to it.

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273.308 - 287.831 Dan Epps

Steve Ladek talked about something I think is important and interesting, basically all the ways in which Congress and the presidency have tools to push back on the court and how they have exercised that power

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288.391 - 305.183 Dan Epps

in various ways over the courts of American history and that there's a bit more of a dialogue between the political branches and the courts in the Supreme Court in particular than some simplistic conception suggests. I thought that was – his remarks were great. And then Judge Jones kind of took things a little bit off the rails, I would say.

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306.103 - 331.819 Dan Epps

and you know went on a tirade about how steve's criticism of single judge divisions in federal courts basically steve has criticized these practices because they enable litigants to judge shop right they can file lawsuits in certain divisions in certain judicial districts and know for certain who the judge is going to be and he has argued that this is problematic i agree that it is problematic i think a

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334.961 - 359.676 Dan Epps

Judge Jones kind of whipped out this file folder. She said, I have these tweets here printed out. I assume her law clerks printed them out and accused Steve for that criticism of causing Judge Kaczmarek, who's one of the judges for whom this technique has been leveraged, accused Steve of causing him to receive death threats. And it just kind of – it was very –

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362.344 - 385.84 Dan Epps

fiery and it was an awkward situation to be in. The thrust of her comments were basically trying to paint him as hypocritical for not sufficiently criticizing, you know, forum shopping when practiced by left-leaning litigants. Although he has examples of how people have been concerned about this in ways that don't track ideology, you know, the in patent cases and so forth.

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386.02 - 400.927 Dan Epps

It was really not a fun experience. I had to figure it out in real time. What I was going to say, I ended up just saying, look, something to the effect of we should be debating these ideas on the merits and not just trying to paint people on the other side as hypocrites. That's really missing the point.

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401.147 - 414.752 Dan Epps

In fact, the whole thrust of my earlier comments had been we should try to be able to talk about these issues on the merits, regardless of the fact that there's always going to be partisan stakes to them. And so, I don't know, you watched from home, I believe. What was your reaction?

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415.252 - 435.136 Will Bode

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.

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435.216 - 452.035 Will Bode

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.

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452.075 - 472.094 Will Bode

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.

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472.154 - 482.362 Dan Epps

And then criticizing him for some stuff that happened before he was a judge, you know, with there was this attempt to kind of like take his name off an article he had supposedly co-written.

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482.842 - 500.157 Will Bode

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.

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500.598 - 516.049 Will Bode

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.

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516.129 - 523.874 Will Bode

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.

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523.894 - 534.321 Dan Epps

I find plausible, but also I find less likely than the real story, which is that he had been the author and was trying to – I don't know. I mean, not the real story, but then the alternative explanation.

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537.003 - 545.849 Will Bode

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.

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546.59 - 549.051 Dan Epps

Anyway, it was- That's a totally fair thing to criticize, right?

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549.472 - 566.763 Will Bode

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.

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566.783 - 573.427 Will Bode

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.

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573.447 - 589.635 Will Bode

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?

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591.136 - 615.502 Will Bode

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

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616.68 - 618.382 Will Bode

Maybe he doesn't think it was equally bad, but still.

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618.883 - 629.555 Dan Epps

I mean, but to the extent that the criticism is about – he's being criticized for where he's devoting his efforts. I mean, also, didn't that happen before all of us were born? Yeah, right.

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629.895 - 630.576 Will Bode

I mean, that's why I think –

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633.539 - 653.306 Will Bode

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

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653.746 - 673.34 Will Bode

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.

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674.73 - 689.481 Will Bode

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.

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690.382 - 711.734 Dan Epps

And you can believe that judge shopping is bad without saying anyone is corrupt or anything like that, right? Right. I mean, it's just... And without... saying something that you know calls the you know threatens legitimacy of the judiciary like it's just acknowledge i mean we can all acknowledge that different judges have different views and approach cases differently.

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711.834 - 715.557 Dan Epps

And part of the way justice works is that you kind of roll the dice.

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716.077 - 729.208 Will Bode

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.

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729.748 - 739.475 Will Bode

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.

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739.495 - 748.178 Dan Epps

What do you mean by coincidence? I mean, it's not like they're randomly choosing the outcomes. It's just they have more conservative judicial philosophies, right? Right.

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748.218 - 765.045 Will Bode

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.

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765.225 - 777.71 Dan Epps

Yeah. The point is that if you have a system with lots of judges, there's going to be outliers, and a system that enables litigants to, even without any particular connections to the forum, just to pick those judges, I think is bad.

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779.091 - 790.595 Will Bode

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.

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790.615 - 803.161 Will Bode

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.

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803.782 - 813.19 Will Bode

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?

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813.53 - 823.159 Dan Epps

Yeah. I just thought that was what we had all settled on. As an originalist, I thought you'd go with the kind of older school pronunciation. I should not know what the older school one is.

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823.62 - 827.944 Will Bode

I do say gerrymander rather than gerrymander, even though the original is gerrymander.

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828.304 - 829.606 Dan Epps

Yeah, that's reasonable.

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829.646 - 847.358 Will Bode

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.

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847.619 - 868.851 Dan Epps

Yeah, I guess I share some of your reaction that like, part of what bothered me about it was the kind of intellectual and seriousness of the arguments and the criticism. And I thought that, you know, I am very biased in the debate, but I really did think that if anything, it proved the, both the points Steve and I were making, like at least certainly didn't detract from them.

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869.492 - 879.837 Dan Epps

And I don't really understand the position being advanced. The position is that, is that what you can't criticize the public can't criticize the way the judiciary is structured. Like,

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880.645 - 900.967 Dan Epps

I was trying to kind of encapsulate the argument, and I am struggling to come up with the principle that it's going to lead – if you say that, gosh, this system is bad because it enables judge shopping, that necessarily leads to death threats, and so we can't make those arguments. I really don't understand the argument. Yeah.

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901.328 - 921.802 Will Bode

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.

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922.682 - 938.83 Will Bode

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.

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939.571 - 946.013 Dan Epps

Yeah, there could be, but it's, if it's going to, you know, if you're going to make that accusation, you know, you should really back it up.

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946.033 - 963.361 Will Bode

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.

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965.163 - 973.549 Will Bode

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.

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974.27 - 990.405 Dan Epps

I mean, it could be. I mean, but it could be. I mean, if no... Media organization reported on what the courts were doing. Nobody would know who the judges were. I mean, I just don't know where you possibly are supposed to draw that line. I mean, your colleague, Adam Mortara, was tweeting about this a bunch.

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990.445 - 1001.797 Dan Epps

And I struggled to kind of figure out, you know, he was very supportive of Judge Jones and he's been very critical of Steve and has, you know, kind of Trumpian, you know, derisive nicknames for him.

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1002.23 - 1013.718 Dan Epps

But again, I was trying to understand what the position being advanced is, and it seems to be that we're just not supposed to criticize judges at all, I guess, and that somehow doing that is destructive of the rule of law.

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1014.64 - 1020.542 Will Bode

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.

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1021.143 - 1042.852 Dan Epps

Well, maybe someone out there will come up with better versions of these arguments. But yeah, it was not. I mean, Steve raised this question in his post on his Substack in the aftermath about should he still engage in these Fed Soc events. And he says he's definitely still going to do the student events, but he's not sure he's going to do the national events.

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1043.712 - 1045.093 Will Bode

Did you think that was an appropriate response?

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1045.413 - 1070.547 Dan Epps

I think that's really up to Steve. I think in terms of what my view is, I mean, I probably would still do them. I don't think the Federalist Society showed itself in its best light. And I do think that this suggests that maybe having this kind of mix of panels is maybe not ideal. Academics, judges, including some judges who feel a personal stake in some of the criticisms being made.

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1070.967 - 1091.412 Dan Epps

And then you have Supreme Court And appellate litigators, people like Cannon, who are going to necessarily be constrained in what they can say, given their role. It seems like maybe not a recipe for the right kind of serious debates for which the Federalist Society is known, or at least wants to be known, right?

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1091.972 - 1104.606 Will Bode

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.

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1104.666 - 1113.195 Dan Epps

It's not the kind of thing the Federalist Society usually does. So usually it kind of is very kind of hands off, doesn't take any positions, anything like that. So I was a little surprised by that.

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1113.715 - 1113.835 Will Bode

Right.

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1113.855 - 1141.727 Will Bode

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,

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1142.287 - 1154.513 Will Bode

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.

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1154.653 - 1164.478 Will Bode

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.

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1164.978 - 1186.084 Dan Epps

Yeah. That, that was honestly, that is, that was my take on it at the end, which is, uh, having to go through the thought process of, do I say something? Do I not say something? This is a sitting federal judge. I don't really want to get into something with a sitting federal judge, but I also don't want to let some of this stuff go without comment and make it seem like I agree with it.

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1186.245 - 1196.511 Dan Epps

That wasn't my favorite. But again, being biased, but I do think that it helped propagate my ideas in that way. So I don't know. Got a few free nights in DC.

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1197.219 - 1216.287 Will Bode

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.

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1216.307 - 1218.528 Will Bode

And I guess I think... It's good.

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1218.548 - 1242.398 Dan Epps

It's a good one. But I guess from the Fed Soc's perspective, if the goal of the Fed Soc is largely to advance conservative ideas, it seems like a better panel would have been me and Steve and then people like you or Steve Sachs, right? Sure. Who are going to come in with pretty hard-hitting arguments. And Steve has wrote something in response to –

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1243.539 - 1259.033 Dan Epps

One of my court reform pieces that was – I don't agree with much of what he has to say, but it was really good and made some hard arguments. And that seems like that's what the Fed Soc should want. And so maybe having this kind of weird role mismatch between kind of academics who are pretty free to say –

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1260.034 - 1278.978 Dan Epps

whatever we want, and judges who are constrained and who are not kind of engaged in that kind of same kind of inquiry, same kind of freewheeling discussion, they're somewhat constrained. And then lawyers who are also somewhat constrained. Maybe it seems like you should have academic panels and you should have judge panels.

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1280.09 - 1294.753 Will Bode

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.

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1294.773 - 1297.593 Will Bode

Would have been different, yeah. Hopefully he'll take the invite next time, you know?

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1297.693 - 1314.018 Dan Epps

Yeah. But again, even that would be awkward, right? It would be awkward. It would be hella awkward, but it would be interesting. It would be interesting, for sure. And this was interesting. Okay. So yeah, I'm not a no on future invites, but I would be curious to know who's on the panel. This is the second FedSoc event I've done.

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1314.038 - 1335.378 Dan Epps

The other one was a Zoom event, but where there was somebody else on the panel who was saying stuff I thought was not just kind of that I disagreed with, but was kind of like wrong and dumb. And that dumb enough that I, you know, maybe dumb is the wrong word, but just required a response. Otherwise it was going to be problematic for me to not, you know, weigh in on this.

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1335.438 - 1347.686 Dan Epps

And again, that is a stressful situation to be in. And so I, you know, I think that I might, you know, see who's on the panel and not participate if I feel like it's going to be that kind of a situation just because it's Sure.

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1347.766 - 1356.49 Will Bode

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?

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1358.411 - 1379.273 Dan Epps

Honestly, not really. I feel like I kind of made the point I wanted. I mean, I think I've expanded on it some here, and I really just do think that... I continue to think we should be able to talk about the structure of the court system and the right way to design it and acknowledge that there are partisan stakes and also try to evaluate the arguments on their merits.

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1379.673 - 1395.007 Dan Epps

The partisan stakes might explain why any kind of changes are never going to be possible, but I still think we should be able to say, yes, this is a good way for constructing a judiciary or this is bad or they're not good arguments here and maybe it's one we're stuck with.

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1395.727 - 1421.68 Dan Epps

But I do think this exercise of trying to paint people we disagree with as hypocritical, I just – I don't think it accomplishes anything. I don't think it persuades people. And I think it maybe scores points among co-partisans. I mean Mitch McConnell liked Judge Jones' remarks. He came to her. Her defense on the Senate floor, calling Steve the general patent of the legal left, which is great.

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1422.081 - 1445.01 Dan Epps

I guess, I don't know what that makes me. It makes me just like, I don't know, aide-de-camp or something. There are a lot of generals. Am I part of the legal left-ish? I don't know. This podcast is not really part of the legal left. So yeah, I don't know. All right. So there's a lot potentially to catch up on. Much of it we're going to gloss over. There was an election.

0
💬 0

1446.112 - 1462.041 Will Bode

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.

0
💬 0

1462.061 - 1479.695 Dan Epps

Yeah, there seems to be a lot of speculation that Justices Alito and Thomas are going to leave and be replaced by their former clerks. I don't really know if that's based on anybody's inside information or if that's wishful thinking or what.

0
💬 0

1480.677 - 1497.815 Dan Epps

If that were to happen, I mean, you would then have a kind of five justice, very strong conservative majority, all of whom would be kind of in their 50s or younger. Yeah. Wait, why five? Oh, because the chief would be old. Yeah, I'm not counting the chief.

0
💬 0

1497.915 - 1513.352 Dan Epps

I mean, they would still have the chief, but I just mean you would have a full majority of the court that was appointed within a short period of time. And so it could continue collectively to kind of control the court for some significant period of time. Which would be good for some people, bad for others.

0
💬 0

1513.888 - 1534.752 Will Bode

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.

0
💬 0

1535.45 - 1553.138 Will Bode

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

0
💬 0

1554.098 - 1578.133 Dan Epps

prompt some complicated questions for the court wants to handle it there's more to say about that let's come back to that in a second but just to close the thought yeah i think john sauer has been named as the next sg i mean it has to be you know formally nominated and confirmed and so forth but a missourian right a missourian he was the sg of missouri he's a former clerk for justice glia and he argued the trump successfully argued the trump immunity case

0
💬 0

1578.673 - 1604.844 Dan Epps

So he's certainly a very smart, capable, competent lawyer. He may be someone that Trump perceives as more loyal than some of the folks the last time around. It does seem like this new round of executive branch appointments looks to be more focused on people that are perceived as solidly Trumpian people. Have you been vetted for much in this position?

0
💬 0

1605.284 - 1606.205 Will Bode

Positions in administration?

0
💬 0

1606.305 - 1615.372 Dan Epps

Yeah, yeah. I mean, you've been pretty loyal, right? I mean, you had that whole thing about saying he was ineligible to be president, but who still remembers that?

0
💬 0

1615.753 - 1636.159 Will Bode

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.

0
💬 0

1637.58 - 1655.013 Will Bode

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.

0
💬 0

1655.033 - 1659.256 Will Bode

That should be a complicated intellectual hoop to jump through.

0
💬 0

1659.756 - 1663.159 Dan Epps

I thought only Congress was allowed to determine whether the president was ineligible.

0
💬 0

1663.619 - 1672.164 Will Bode

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.

0
💬 0

1672.184 - 1690.236 Dan Epps

All right. Hard to see it. Well, I'll let you know what happens if they call me. Because, I mean, I'm the guy who gets invited to the Federalist Society conventions now, apparently. Although I guess Trump people don't actually even like the Fed Soc. They're too principled, too committed to the rule of law.

0
💬 0

1691.485 - 1702.034 Will Bode

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.

0
💬 0

1702.934 - 1715.725 Dan Epps

ACS does not strike me as the most active organization. I mean, I got invited to one Zoom panel for ACS in the last couple of years. So I don't know. I've never been invited to speak at their national convention.

0
💬 0

1716.363 - 1721.089 Will Bode

Yeah, I'm not jealous. I'm just, you know, relations seem to work differently. Yeah.

0
💬 0

1721.851 - 1742.91 Dan Epps

Okay, but does Circle, yeah, anything else to say about election implications? Okay. To circle back to Scrimetti, case with a few too many consonants in a row. Yeah, that one, I mean, it seems clear, I mean, all but certain the Trump administration will change position on day one, right?

0
💬 0

1742.97 - 1762.437 Dan Epps

Or however many days it takes to get its staff kind of operational, appointing someone to be the acting SG and so forth. Yeah. I guess there's some possibility that some of the plaintiffs whose petition wasn't granted, their petition could get granted and they could come in.

0
💬 0

1762.957 - 1780.522 Will Bode

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.

0
💬 0

1780.542 - 1796.886 Will Bode

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.

0
💬 0

1797.326 - 1801.047 Will Bode

Now, that was wrong and just as Clay dissented, but still, there'd be precedent.

0
💬 0

1801.407 - 1807.448 Dan Epps

So what the alternative is to formally say, you know, we move to have our petition be dismissed or something like that?

0
💬 0

1807.998 - 1828.946 Will Bode

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.

0
💬 0

1829.086 - 1850.639 Dan Epps

And if you're the Trump administration, it also looks like you're going to win. Right. I mean, it does, based on the argument, it did seem like there were going to be, you know, at least five votes to uphold the state law, limiting, banning this kind of gender affirming care. Justice Gorsuch, strangely silent at the argument.

0
💬 0

1851.279 - 1852.32 Will Bode

Yeah. Do you read anything to that?

0
💬 0

1852.987 - 1880.574 Dan Epps

I don't know. It was interesting because at the argument, one thing that came up multiple times was Bostock, his famous opinion interpreting Title VII to extend protections to gay and transgender individuals. It's not directly on point because that was a statutory case and this is a constitutional case about the Equal Protection Clause, but relevant because it's the

0
💬 0

1881.194 - 1903.926 Dan Epps

United States here is trying to make kind of similar arguments to try to say, well, like this is not just a ban on transgender care. This is a sex-based rule because you're saying this kind of care for a male patient is not okay for a female patient or assigned female at birth patient. And so it's a very similar kind of move logically, rhetorically that was made in Bostock, right? Yeah.

0
💬 0

1904.586 - 1909.692 Will Bode

Yes. I mean, yeah, I get the similarity, although it doesn't have the text to work with.

0
💬 0

1910.112 - 1926.506 Dan Epps

Yeah, yeah. But I mean, if you take for granted that the Equal Protection Clause does require scrutiny of gender-based classifications, then – and if you buy the Bostock reasoning that – you know, ban, like rules against.

0
💬 0

1926.986 - 1927.547 Will Bode

Yeah, I see it.

0
💬 0

1927.807 - 1936.251 Dan Epps

Transgender, you know, affecting transgender people are just discrimination on the basis of sex. Then put those two together. Then maybe, maybe it works.

0
💬 0

1936.951 - 1941.393 Will Bode

Yeah. I think there is very little probability of just the Scorsese endorsing the challengers arguments.

0
💬 0

1941.653 - 1948.098 Dan Epps

Yeah. I mean, but why do you, I mean, sometimes he talks a lot. Sometimes he doesn't talk at all. Why do you think he's not, is he not interested in this case?

0
💬 0

1948.478 - 1963.329 Will Bode

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.

0
💬 0

1964.25 - 1975.035 Will Bode

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.

0
💬 0

1975.635 - 1989.681 Dan Epps

I am looking at the, um, postdoc postdoc transcript and I regret to inform you that you were, the thing you heard was incorrect. Okay. He talked to me, you know, more than a dozen questions.

0
💬 0

1989.701 - 1992.422 Will Bode

All right. Great. You don't regret telling me I'm wrong on the air.

0
💬 0

1992.898 - 2004.046 Dan Epps

I mean, I regret for you that you have one of these rare moments where all Supreme Court knowledge is not perfectly encapsulated in your brain. I have to look all this stuff up. I don't hold this stuff in my head.

0
💬 0

2004.566 - 2005.507 Will Bode

Well, obviously I don't either.

0
💬 0

2008.182 - 2027.451 Dan Epps

Speaking of, can I just say a quick side note? I have been trying to keep up with things by listening to most of the oral arguments, which I have successfully. And that's kind of fun to just kind of listen to them all. Especially because you can't listen to our podcast. I never listen to our podcast. I don't like hearing myself talk.

0
💬 0

2027.771 - 2050.532 Dan Epps

But one thing I noticed, Justice Gorsuch has this move he does a bunch. He's probably done this four or five or six times this term alone, and I haven't gone back. I would love someone to go back and look and see how often he's done this, where he likes to say to the advocate – Let me see if I've got it. And then he gives some theory. And then he likes to say something. He says, have I got it?

0
💬 0

2051.012 - 2059.976 Dan Epps

So he says that over and over. This is something that maybe I'd heard him do before, but I never picked up because I didn't listen to them all in kind of close succession. I didn't pick up quite how frequent it is.

0
💬 0

2060.478 - 2072.128 Will Bode

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.

0
💬 0

2072.289 - 2083.999 Dan Epps

I think he's just trying to make sure he understands the argument. I think sometimes it seemed like maybe he was putting a spin on it that wasn't necessarily helpful, but I think it was mostly, it was on balance helpful. Yeah.

0
💬 0

2084.491 - 2100.153 Dan Epps

If you're the Trump administration, maybe the rational thing to do is just file the brief saying we disagree, we disavow the position we took, but don't try to get the case dismissed. Try to get the case decided on the merits because it looks like, based on the argument, that the decision is going to be what the new administration would want.

0
💬 0

2100.717 - 2113.482 Will Bode

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.

0
💬 0

2113.502 - 2138.591 Dan Epps

I mean, you could. Yeah. I confess to not finding the current administration's position in that very compelling based on existing- Current administration. The Biden administration. Biden administration. Yeah. Yeah. I think it's a very heavy lift to say that this area, the state regulation of medicine is one that should be constitutionalized.

0
💬 0

2139.151 - 2155.617 Dan Epps

And I think it depends on this kind of clever rhetorical move of trying to spin these things as just gender classifications when obviously it's deeply related to gender, but I think it's a little bit more complicated than that. And I also tend to think this is an area where

0
💬 0

2156.677 - 2179.239 Dan Epps

by demonstration is kind of like way out in front of where a lot of the country is, including a lot of people on the left, I think are actually kind of deeply skeptical. If you talk to them privately, they're kind of deeply skeptical of, you know, some of the, you know, positions on this kind of medical care for kids and arguably kind of further, you

0
💬 0

2180.72 - 2197.326 Dan Epps

You know, ahead of not exactly where the science is, which I think has been really kind of up for debate and moving kind of quickly. And other European countries have kind of dialed some of this back. So I don't know. I never thought this was kind of a winner of a case for the government.

0
💬 0

2198.476 - 2203.658 Will Bode

It was doing pretty well in some of the lower courts before the Sixth Circuit came along, right?

0
💬 0

2204.358 - 2241.389 Dan Epps

Yeah, I think the plaintiffs had won multiple of these cases. So it's obviously not a frivolous argument. Getting this court to endorse it just strikes me as extremely implausible. Yeah. Same. I don't see it. And it strikes me as an issue where if Democrats want there to be real change on this issue, it's going to probably have to come from politics and not from the courts. Okay.

0
💬 0

2241.749 - 2258.253 Dan Epps

Maybe some quick discussion of some orders list stuff type stuff. I want to talk a little bit about this case, a case gloss up that we were going to talk about a couple of months ago and never got around to it, but let's just try to maybe this episode will be more focused on odds and ends.

0
💬 0

2258.913 - 2270.835 Dan Epps

So we had a couple, a couple of digs, a couple of cases dismissed as imprevidently granted, which the court doesn't love to do is kind of embarrassing when that happens. And we had two from the same sitting.

0
💬 0

2270.855 - 2271.615 Will Bode

Yeah.

0
💬 0

2272.305 - 2279.212 Dan Epps

And in a world where the court really doesn't grant very many cases to have multiple cases digged, I think is kind of embarrassing.

0
💬 0

2279.973 - 2281.114 Will Bode

So what's going on with these?

0
💬 0

2281.636 - 2312.297 Dan Epps

Well, so one of them I thought was more obviously going to be digged than the other. The one that I thought was very obviously very likely to be digged was this case, NVIDIA, which is these are both securities cases. NVIDIA was a case about kind of pleading standards in securities fraud litigation. And at the oral argument, it was kind of a heavy hitting oral argument.

0
💬 0

2312.337 - 2339.774 Dan Epps

It was on the petitioner's side, the defendant in the case. NVIDIA and NVIDIA official. You had Neil Katyal, former acting SG, and on the respondents slash plaintiff side, you had a friend of the show, Deepak Gupta, who's one of the best plaintiff side litigators in the country and has argued before the court a bunch of times and has been able to piece together

0
💬 0

2340.614 - 2360.568 Dan Epps

um some improbable victories uh in those cases because he's a very good lawyer and it just it it seemed it seemed to become clear just listening to the argument uh and you know without having gotten deep into the underlying legal issues on my part that the court was getting kind of frustrated that the dpac was not a dpac dpac was sort of saying yeah we you know

0
💬 0

2361.206 - 2377.736 Dan Epps

You know, we just think basically saying, you know, we think in this case, the allegations were sufficient. And the court was trying to press Katyal and trying to say, well, are you really taking this categorical position or not that you got us to grant cert on? At one point, Katyal kept saying, kept saying this thing, the complaint eats itself.

0
💬 0

2379.237 - 2389.564 Dan Epps

And at one point, this is kind of one of my favorite oral argument moments in a while. The chief justice says, I have just one question about an analogy. I've never heard the analogy, the complaint eats itself. What does that mean?

0
💬 0

2390.205 - 2404.138 Dan Epps

And then Katyal tries to basically explain, and I think he's just sort of saying like, you know, the allegations and the complaint don't really, you know, are kind of inconsistent with the theory. And then the chief says, okay, I'm not sure how that's eating itself, but I'll take your word.

0
💬 0

2405.219 - 2425.208 Dan Epps

And, you know, that was sort of one of my signals that the argument wasn't going great for his side, the petitioner's side. So, you know, that one, I came out of listening to that one. I thought that one was very likely to get to get digged. And it was, although it was not the first case from that sitting to get digged.

0
💬 0

2425.308 - 2447.495 Dan Epps

They also digged this other case, Facebook versus Amalgamated Bank, where the petitioner was aforementioned friend of the show, Kanan Shamigam. And this was basically a case about the kinds of risks, the kind of language that has to be disclosed on a particular corporate disclosure form. I don't know if you listened to that argument.

0
💬 0

2447.535 - 2466.188 Dan Epps

It wasn't as obvious to me that that was a clear dig from the argument. It did seem like it was another case where it was unclear. The court was trying to figure out, well, is there a categorical rule here? Or is this just a case that's where there's more agreement about what the rule should be and just disagreement about

0
💬 0

2466.748 - 2495.001 Dan Epps

how that might shake out in this individual case yeah i got that sense but so the dig for that one came out first and my reaction was well i thought it was they were going to dig in nvidia not in facebook yeah i i discovered uh that wikipedia has a list this is really useful of all of the digs uh on the court since uh the 1989 term at least that purports to be a complete list Oh, that's amazing.

0
💬 0

2495.041 - 2497.722 Dan Epps

Hold on. Yeah, I gave you a link to this.

0
💬 0

2497.962 - 2520.569 Will Bode

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?

0
💬 0

2521.69 - 2525.911 Dan Epps

Other people speculated they just didn't want to do two in one day because it was extra embarrassing.

0
💬 0

2525.931 - 2536.215 Will Bode

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.

0
💬 0

2536.335 - 2558.404 Dan Epps

Was there a published dissent from the dig? Nope. That's always so interesting because there's tons of work that goes in and presumably when it takes that long, there must have been a lot of inter-chambers communication, possibly actual drafts written. And then most of the time when they dig, it's just the one-line order and that's it. Sometimes people write dissents.

0
💬 0

2558.424 - 2573.357 Dan Epps

There was one that came out my term. Robertson versus United States ex-Royal Watson, where it was a 5-4. There was a 4-justice dissent, which is interesting, but I'd say that is not the norm.

0
💬 0

2574.076 - 2595.482 Will Bode

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.

0
💬 0

2595.502 - 2619.411 Will Bode

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.

0
💬 0

2619.451 - 2620.992 Will Bode

Yeah. Yeah.

0
💬 0

2621.272 - 2628.658 Dan Epps

I imagine that's frustrating that whoever was putting work into it. Clearly, if it takes that long, something was happening behind the scenes.

0
💬 0

2629.058 - 2650.096 Will Bode

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.

0
💬 0

2650.216 - 2667.674 Will Bode

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.

0
💬 0

2668.134 - 2684.079 Will Bode

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.

0
💬 0

2684.479 - 2706.251 Will Bode

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.

0
💬 0

2706.531 - 2721.662 Will Bode

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.

0
💬 0

2722.402 - 2739.362 Dan Epps

Shouldn't it be called something else then if it's stuff changes in the world? Doesn't it improvidently suggest – dismissed as improvidently granted, doesn't it suggest shouldn't have been granted in the first place? Shouldn't there be some disposition that's like, yes, it should have been granted, but stuff changed and now –

0
💬 0

2740.522 - 2755.508 Will Bode

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.

0
💬 0

2756.028 - 2758.989 Dan Epps

If anybody takes words seriously, it should be the Supreme Court of the United States.

0
💬 0

2760.266 - 2780.955 Will Bode

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.

0
💬 0

2780.995 - 2790.161 Will Bode

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.

0
💬 0

2790.361 - 2804.951 Dan Epps

And then we have some shadow docket-y opinions. Kind of some interesting stuff on here. I don't know if any of these were ones you were interested in talking about.

0
💬 0

2806.572 - 2831.45 Will Bode

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,

0
💬 0

2832.61 - 2847.604 Will Bode

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.

0
💬 0

2848.885 - 2866.964 Will Bode

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,

0
💬 0

2867.604 - 2868.906 Will Bode

It helps show why there's no standing here.

0
💬 0

2869.026 - 2884.468 Will Bode

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.

0
💬 0

2885.416 - 2898.141 Will Bode

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.

0
💬 0

2898.401 - 2907.224 Dan Epps

Yeah, he says, I'm concerned that some federal courts are succumbing to the temptation to use the doctrine of Article III standing as a way of avoiding some particularly contentious constitutional questions.

0
💬 0

2908.004 - 2916.021 Dan Epps

While it was important that federal courts heed the limits of their constitutional authority, it was equally important that they carry out their virtually unflagging obligation to exercise the jurisdiction given them.

0
💬 0

2916.756 - 2934.825 Will Bode

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.

0
💬 0

2935.105 - 2950.412 Will Bode

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.

0
💬 0

2950.933 - 2973.026 Will Bode

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.

0
💬 0

2973.546 - 2986.216 Will Bode

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.

0
💬 0

2986.736 - 3004.803 Dan Epps

Yeah, and Justice Alito seems to be leading the charge. I mean, I guess my intuition is that somebody should be able to have standing to sue for this. I mean, if the claim is that we will not know that this is happening and that's bad, saying only people who know that this is happening can sue doesn't work.

0
💬 0

3005.45 - 3010.195 Will Bode

Yeah, you might have had that intuition. You might be a principled person who also had that intuition about Clapper.

0
💬 0

3010.815 - 3020.725 Dan Epps

Yeah. That's fair, although it seemed like part of the problem in Clapper was just that anyone in the world could potentially sue, depending on how far the reasoning goes.

0
💬 0

3021.466 - 3043.499 Will Bode

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.

0
💬 0

3045.813 - 3066.127 Will Bode

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.

0
💬 0

3066.667 - 3074.913 Will Bode

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.

0
💬 0

3075.653 - 3095.251 Dan Epps

Yeah. Yeah. Yeah. I would be curious to see the court resolve those cases. I mean, again, I actually do think that those are more plausible claims than the one that was being advanced in Scrimetti. Also tend to think that, you know, just, this is not really part of the show's jurisdiction. I tend to think that more politically palatable, right?

0
💬 0

3095.291 - 3106.918 Dan Epps

I don't think that, you know, California has taken the position that, you know, these kinds of policies exist. are good. We know better than the parents. I don't think that's good politics, at least at the national level.

0
💬 0

3106.938 - 3123.964 Dan Epps

I think saying, we're the government and we know better than you how to raise your children, even if sometimes that's true, but I'm not sure that politically that's a great strategy for the Dems. I don't really know anything about political strategy, but I trust you.

0
💬 0

3125.244 - 3146.793 Will Bode

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.

0
💬 0

3146.813 - 3166.398 Dan Epps

Yeah. And there is a pending due process claim in Scrimeti. It's just not one that was reached below. It's not one that's before the court. I tend to also think that's a heavier lift because the court has said in the past you don't have a substantive due process right to those kind of medical decisions generally.

0
💬 0

3166.738 - 3180.541 Will Bode

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.

0
💬 0

3181.521 - 3184.923 Dan Epps

Well, the children are not the defendants in this case. Do you understand?

0
💬 0

3184.943 - 3189.105 Will Bode

Sure. But even the counterparty to the secret.

0
💬 0

3190.405 - 3207.533 Dan Epps

I mean, I do think that, I don't know. I think there is a substantive due process right to have a school, send your kid to a school in the language of instruction of your choosing. What else have we got in terms of parents' substantive due process rights?

0
💬 0

3208.174 - 3220.018 Will Bode

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.

0
💬 0

3220.038 - 3228.24 Will Bode

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.

0
💬 0

3228.62 - 3236.423 Dan Epps

Yeah, although there is a subtle difference between the right to have information and the right to not have the government kind of obstruct your access to that information.

0
💬 0

3237.163 - 3243.369 Will Bode

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.

0
💬 0

3243.409 - 3253.598 Dan Epps

No, but it's requiring people, you know, I think these rules, at least the one in California is tries to override the decisions of local school officials. Right. Like you cannot share this information.

0
💬 0

3254.438 - 3261.828 Will Bode

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?

0
💬 0

3261.848 - 3272.819 Dan Epps

I want to think about that more. I don't want to freelance on that one. I guess there's a good answer in response to that. Yeah, okay. Okay. Did you see Roberson versus Texas?

0
💬 0

3273.539 - 3292.867 Dan Epps

It's the statement of Justice Sotomayor about respecting the denial of an application for stay of execution and a cert petition for this Capitol prisoner in Texas, Leslie Roberson, who has been convicted of capital murder for supposedly murdering his chronically ill infant daughter.

0
💬 0

3293.667 - 3315.708 Dan Epps

In the years since his conviction, many, many people have come to believe that he's innocent and that this rests on extremely shoddy science. There's a spate of these kind of shaken baby cases where experts came in and said this baby was clearly shaken and murdered, and that we now believe that it was just not credible and that these were not homicides at all.

0
💬 0

3315.748 - 3338.089 Dan Epps

These were just children that died of other causes. There's a lot of reason to think that this is one such case. Texas has thus far been totally unwilling to reconsider this guy's conviction. And so he filed an application for stay and a cert petition. Justice Sotomayor spends a lot of time talking about the facts and how troubling they are and then says, well, here's the problem.

0
💬 0

3338.79 - 3358.77 Dan Epps

There's no federal claim here. And then she says, under these circumstances, a stay permitting examination of Robertson's credible claims of actual innocence is imperative. Yet this court is unable to grant it. That means only one avenue for relief remains open, an executive reprieve. In Texas, blah, blah, blah, blah, blah. Basically, she uses this.

0
💬 0

3359.831 - 3377.84 Dan Epps

She says, an executive reprieve of 30 days will provide the Texas Board of Pardons and Parole's with an opportunity to reconsider the evidence for Eberson's actual innocence that could prevent a miscarriage of justice from occurring, executing a man who has raised credible evidence of actual innocence. So it was interesting. I mean, I kind of agree with a lot of her concerns here.

0
💬 0

3377.86 - 3394.426 Dan Epps

It was an interesting use of the statement respecting denial to sort of say, yes, you know, I agree there's nothing we can do here. Like there's, there's no federal claim here that, that makes sense. And yet I'm going to tell the executive, you know, please take a look at this.

0
💬 0

3395.106 - 3401.008 Will Bode

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?

0
💬 0

3401.744 - 3411.889 Dan Epps

So I think it is conceivable maybe there would be an actual innocence claim. The court has never resolved whether there are freestanding actual innocence claims.

0
💬 0

3411.929 - 3435.452 Dan Epps

I think that here, she tells us his only federal challenge was to the Texas Court of Criminal Appeals practice of issuing boilerplate opinions, dismissing subsequent habeas petitions for purported failure to apply Texas's procedural requirements in habeas cases. So he may have been able to come up with a better – Federal claim, maybe a freestanding actual innocence claim.

0
💬 0

3435.472 - 3447.338 Dan Epps

The court has never said those are available. The court has never conclusively said they're not available. Probably this court would say they're not available if it had to decide the issue. But here, it seems like he did not even make that argument.

0
💬 0

3448.038 - 3465.541 Will Bode

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.

0
💬 0

3466.021 - 3487.129 Dan Epps

Because it's post-conviction relief and you can't bring... Yeah, no underlying right to counsel, right? You have no right to counsel, not even just whether it's post-conviction, you have no right to counsel in cert proceedings generally. But he also didn't bring one below. Yeah, but also it's post-conviction, so that wouldn't work. Yeah, okay. So it's doubly, doubly. Yeah, I don't know.

0
💬 0

3487.269 - 3494.976 Dan Epps

It's not a good situation. And I think that the executive reprieve seems highly unlikely based on what I know about Texas.

0
💬 0

3495.617 - 3514.753 Will Bode

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.

0
💬 0

3516.094 - 3526.783 Will Bode

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.

0
💬 0

3527.58 - 3545.603 Dan Epps

Okay, I guess we're fast running out of any prospect of talking about Glossop. Maybe we'll record again soon to talk about that one. Any of the other ones? You mentioned briefly the other parent case, Boston Parent Coalition for Academic Excellence, CORP, the school committee.

0
💬 0

3546.144 - 3553.03 Dan Epps

Was that because you were thinking about saying something about that one or just because you were misreading the – It was just because I got my schools confused.

0
💬 0

3553.07 - 3559.375 Will Bode

Although this is a perfectly interesting case about the application of students for fair admissions to selective high school admissions.

0
💬 0

3559.796 - 3570.309 Dan Epps

Yeah, which is something the court has previously – declined to weigh in on coming out of Thomas Jefferson. I think we probably talked about this one on the show last season.

0
💬 0

3570.75 - 3588.579 Will Bode

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.

0
💬 0

3588.599 - 3611.354 Will Bode

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.

0
💬 0

3611.374 - 3622.984 Will Bode

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.

0
💬 0

3624.204 - 3643.774 Will Bode

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?

0
💬 0

3645.234 - 3662.326 Will Bode

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.

0
💬 0

3662.966 - 3672.393 Will Bode

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.

0
💬 0

3673.133 - 3689.702 Will Bode

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.

0
💬 0

3689.742 - 3691.103 Will Bode

Offense is one that it's allowed to criminalize.

0
💬 0

3691.343 - 3716.461 Dan Epps

So this came up. I don't know if you have encountered this issue. There are people that have been... convicted under old sodomy laws, but they were convicted of stuff that was unquestionably not constitutionally protected. They were convicted of the sodomy law, but of a sex act involving a child. But at trial, all that needed to be proven was just the mere fact of the sodomy violation.

0
💬 0

3717.679 - 3735.525 Dan Epps

And those people have raised claims based on Lawrence, right? And those claims, I think, have pretty uniformly been rejected, at least the ones that I've seen. And so in that situation, I mean, does your view suggest that the government has to prove something like this is the other person is not a consenting adult or something?

0
💬 0

3736.286 - 3744.634 Will Bode

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.

0
💬 0

3744.654 - 3745.455 Dan Epps

But just put that to one side.

0
💬 0

3745.475 - 3762.907 Will Bode

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.

0
💬 0

3763.467 - 3778.92 Dan Epps

And you think that should be the government's burden? I mean, what if it's a statute that we think is – not the sodomy statute, let's change it – but a statute that we do think is constitutional in 95% of its applications? Or 99%. But there's a small sliver of people for whom it's unconstitutional.

0
💬 0

3778.96 - 3785.895 Dan Epps

You think that it's always the government's burden to show that this person is not in that small sliver of people.

0
💬 0

3786.661 - 3809.846 Will Bode

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?

0
💬 0

3809.866 - 3824.014 Will Bode

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.

0
💬 0

3824.034 - 3830.12 Will Bode

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.

0
💬 0

3830.68 - 3835.144 Dan Epps

But in your view, isn't the point that Congress actually had to make a statute –

0
💬 0

3835.845 - 3841.867 Will Bode

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.

0
💬 0

3841.887 - 3857.451 Dan Epps

The point is that the problem is that the statute is beyond Congress's power because Congress has tried to regulate something. It doesn't have authority over that. Maybe there's other statutes that would be appropriate. Like it seems like you have to look at the law and say, is this law a valid regulation of commerce?

0
💬 0

3858.095 - 3875.959 Will Bode

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?

0
💬 0

3876.339 - 3881.78 Will Bode

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.

0
💬 0

3882.079 - 3900.582 Dan Epps

Yeah, although it's kind of weird, though, to say that if the law is just possession of a gun, even if you could imagine some hypothetical different law that was like possession of a gun within 3,000 feet of a federal building, right? And you're like, well, the person was within 3,000 feet of a federal building, and so Congress maybe could have regulated that.

0
💬 0

3900.622 - 3903.463 Dan Epps

That shouldn't save the prosecution, right?

0
💬 0

3903.963 - 3917.976 Will Bode

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.

0
💬 0

3918.597 - 3924.826 Will Bode

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.

0
💬 0

3925.725 - 3938.21 Dan Epps

I still think it's a little weird to just say prosecutors can choose to make up elements that would make a regulation of commerce by Congress constitutional rather than having Congress have to do it in the statute. I don't know.

0
💬 0

3938.55 - 3953.677 Will Bode

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.

0
💬 0

3954.153 - 3968.947 Dan Epps

Okay. Well, we were going to talk some about Glossop. I had prepped that one a long time ago to talk about. It will remain prepped-ish, maybe to talk about on a future episode, because my expiration date is arriving soon.

0
💬 0

3968.967 - 3980.238 Will Bode

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.

0
💬 0

3980.478 - 4000.925 Dan Epps

No, no. I actually forgotten. I didn't even mention it before because I forgot we were going to talk about it. I will say it is the first real merits opinion by Justice Jackson. Case argued in October. So it got out very, very quickly. Unanimous. It's a ruling against the petitioner who is an immigrant who is trying to

0
💬 0

4001.805 - 4025.162 Dan Epps

to challenge a determination that he is not going to get a visa because he was found to have previously been involved in a sham marriage for immigration reasons. And it's just a debate about, is this the kind of discretionary decision that the Secretary of Homeland Security gets to make that is not reviewable? Or is it the kind of decision that's non-discretionary that is reviewable?

0
💬 0

4025.803 - 4045.379 Dan Epps

Now, everybody seems to agree that This decision could be reviewable. The substance of the decision could be reviewable later if he files a different petition. And so it's sort of a question about whether it's reviewable now. It was one of these cases, listening to the argument and reading the opinion, where sometimes you kind of just think, is this the best way to do things?

0
💬 0

4045.399 - 4051.904 Dan Epps

Couldn't we just have someone... A lot of energy has been put into deciding this question of... Yeah.

0
💬 0

4065.484 - 4082.494 Will Bode

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.

0
💬 0

4082.833 - 4084.134 Dan Epps

Yeah. But I mean, you could also allocate it.

0
💬 0

4084.174 - 4102.945 Dan Epps

I mean, like sometimes I wonder, and this is something I'll probably come back to with some other cases that I listened to is, you know, sometimes I think that the way to decide these kinds of disputes is not kind of backwards looking legal interpretation, but maybe it would be better if like there was like a court of Congress that could just say, okay, here's the stakes, policy stakes.

0
💬 0

4103.286 - 4117.501 Dan Epps

We understand why there's this like confusing gap in the law right now. Let's just give you the answer. Yeah, could be. Yeah, I don't think I'm going to say anything more about it. Did you have anything to say about it? No, that's fine. I thought it was fine. Unanimous. Listening to the argument, I wasn't sure it was going to be a quickie unanimous decision.

0
💬 0

4118.522 - 4132.891 Dan Epps

I thought that the petitioner's counsel did a good job trying hard to cast this decision as a non-discretionary decision that would be subject to review, but I guess the court was not persuaded and decided to just get this one done quickly.

0
💬 0

4133.551 - 4154.533 Will Bode

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

0
💬 0

4164.872 - 4189.751 Dan Epps

Thanks very much for listening and thank you for bearing with us on the long delay since our last episode. Please, as always, rate and review the show on the Apple Podcast app or wherever else you get your podcasts. Visit our website at dividedargument.com where we post transcripts of the episodes fairly soon after they come out. Go to store.dividedargument.com for t-shirts and other merchandise.

0
💬 0

4190.372 - 4197.475 Dan Epps

You can send us an email, pod at dividedargument.com, and you can leave us a voicemail, 314-649-3790.

0
💬 0

4198.576 - 4206.58 Will Bode

Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the listeners who have not yet deleted us from your podcast feeds. Spread the word. We're back.

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💬 0

4207.08 - 4224.356 Dan Epps

And if there is an equally long delay between this and our next episode, We will not have any good excuse other than if we're dead or under arrest or Will has been seized by the new administration as a disloyal usurper.

0
💬 0

4224.376 - 4226.177 Will Bode

Oh, you think I have to worry about that?

0
💬 0

4236.751 - 4237.753 Dan Epps

Bye.

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