Divided Argument is live from Stanford Law School, hosted by the Stanford Constitutional Law Center! We review an unusual summary reversal in a capital habeas case and the latest universal injunction developments, and discuss some of the implications of the change in administration. After that, we are joined by a very special guest to discuss the recent arguments in the excessive force case of Barnes v. Felix.
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Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast.
I'm Will Vode. And I'm Dan Epps. So, Will, this is our first live show in a little while. We're here. Where are we? We're in California. California. We're at Stanford Law School at a live show sponsored by an institution that you used to be a participant in. Say more.
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.
So hopefully we don't make this the last one. We'll try to do our best to not totally crash and burn. So let's see what happens. So we've got some interesting stuff in store for you. We have an empty mic up here at the podium for a surprise guest. But those of us who are listening, those of you who are listening at home on the podcast, we'll have to just wait and see who that's going to be.
So keep listening. But before we do that, what is there to catch up on?
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?
I did. But I got to say, the opinions are a little short. I didn't totally know what was going on. All right.
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.
But right now, is that is that happen at the same time? They changed the name from Judicial Crisis Network to Judicial Confirmation Network. You're familiar with that organization?
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.
And it was given a nationwide injunction at the Eastern District of Texas against
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 –
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.
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.
So what do you think? Do you think we're finally going to get resolution of this issue in this next administration if the political valence of nationwide injunctions is about to change?
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.
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.
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.
I don't know. It's just too hard to write the opinion coming up with the narrow rule.
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.
And maybe they are relatively rare enough that the court can just review them case by case. They don't mind doing that.
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.
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.
I mean, sometimes it's nice to be able to just get to weigh in case by case and not have to formulate the rule. If they don't mind doing that, then maybe this is the best outcome for them.
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.
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.
Yeah, and so unless you've got anything more to say about that one, maybe we should just briefly talk about the change administration and what that might mean for the court. So as always happens, when there's a change in administration, the government flips its position in some of the cases in which the government has already –
And that process seems to be starting, but maybe has not fully completed. There are some cases where looking at the docket, you might expect the government to change its position with the new Trump administration administration. in charge and acting Solicitor General Sarah Harris now making the decisions where that hasn't yet happened. Maybe the Scrimetti case. I'm not sure.
Maybe the government just thinks the case is going to come out the way it wants anyways and it doesn't need to expend capital. I don't know. Are there some of these that you're expecting to see? So the government did file letters asking for a stay in the briefing schedule while it figures things out in four cases.
Several environmental cases and another case that implicates student loan forgiveness. But I imagine there might be more, right? What do you think?
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?
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.
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.
Um, uh, you know, I don't, I don't recall what the tradition is there, um, in terms of the government stepping in to change its position. If the, if the case has already been that far along in the decision making process.
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.
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.
But so your view is that we're going to see more. More stuff is going to shake out maybe in the next week, maybe even by the time listeners get to listen to this episode at home.
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.
Well, keep your eye on that. Okay. What else? There's a shadow docket opinion. Andrew versus White. Habeas case. This one is a little bit surprising. Okay. This is a per curiam opinion, seven to two, or at least a per curiam opinion with two dissenters.
It is theoretically possible for there to be a per curiam that has a majority of the court where there's one justice, the sixth justice, who decides not to join but also not to dissent. But –
you know, ostensibly maybe seven to two, granting at least some measure of relief to a prisoner in a habeas case governed by EDPA, the Anti-Terrorism and Effective Death Penalty Act, that makes it much harder for state prisoners to file federal habeas claims. And so this one is kind of surprising in the sense that, you know, certainly in
But actually for quite some time, it's been – in habeas cases, if you're going to see a summary reversal in a habeas case, you would much more expect it to be one where the government, the state is the petitioner overturning some opinion by the Sixth Circuit or the Ninth Circuit granting relief. This is the opposite.
This opinion doesn't necessarily let the prisoner go free, but nonetheless, it is a win for a prisoner. And we can talk about the specifics, but just stepping back for a second, were you as surprised as I was to just see – a case in that posture.
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.
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.
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.
So I guess we're seeing it's time for that.
Yeah, this one doesn't quite look like that to me in the sense that if you just described to me the basic facts and the legal posture, I would have said I would predict most federal courts would rule for the state in that situation. So let's tell people a little bit about it. So the prisoner, habeas petitioner. Her name is Brenda Andrew.
She was convicted and sentenced to death for murdering her husband. Under the facts, it appears that the actual killer that fired the fatal bullet was a man with whom she was having an affair. And the question was the scope of her involvement. It does seem like there was – evidence, some evidence supporting that, that Justice Thomas and his dissent that we'll talk about highlights.
But at her trial, the state introduced a lot of evidence that seemed highly prejudicial and was not, at least seems to be not directly relevant to guilt or innocence. That was just designed to kind of paint her as kind of a bad woman and a bad mother. She had a lot of affairs. There was lots of evidence about
Her sexual conduct with various people, how many times she had sex with affair partners, where, what she was wearing, all sorts of things like that that you could imagine would inflame a jury and maybe more so a jury. No disrespect to Oklahomans, but they're probably a little bit more conservative than our audience here in California. And she's filing a due process claim.
So what part of due process does that violate? Is there just a right not to be painted as a scarlet woman?
Well, the claim is that at a certain point, introducing so much irrelevant prejudicial evidence could violate due process. The thing that is interesting about this is the court had said that in a case called Payne versus Tennessee. The court here quotes this line from the opinion in the very first – from Payne in the very first opinion of this summary opinion here. Payne said, evidence –
That it can be the case that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair. When that happens, the due process clause of the 14th Amendment provides a mechanism for relief. Okay. So the court has said that 14th Amendment due process clause can provide a mechanism for relief when there's tons of really prejudicial evidence introduced. Okay.
Did they say that like in an opinion really clearly providing such relief though? No.
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.
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.
doesn't that seem like an overly simplistic concept of dicta? I sort of understood it to be if it was essential to the reasoning, right? If the court says – But you know it's essential if they go in the right way. Well, you know for certain. But if the court says the only reason this person is losing is because of X, Y and Z, I mean then I think it's fair to say – but this is not that, right?
This is a case where the court – Payne, the Payne case, the court sort of said that Maybe to say it's an aside is coloring it a little bit too much. But the court there rejected a claim that – where the defendant was trying to avoid the introduction of victim impact evidence. And the court said, well, by the way, basically there's this other avenue.
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.
And to treat that as a holding that the other mechanism is like definitively available and this is unconstitutional in the mechanism, that's –
Yeah. And let's – for those people who are not steeped in EDPA, let's just remind people why it matters, right?
Because in this posture, when someone who is imprisoned pursuant to a state conviction is seeking federal habeas relief and they're trying to bring a claim based on a federal constitutional issue that was adjudicated by the state court, it's not enough to show that the state court got it wrong. They have to show that the state court
made an error of clearly established federal law as determined by the Supreme Court. Here, the court not only has to say the – it was wrong for the – so the Tenth Circuit said there's no clearly established law on this question. The court is saying, no, there was not just law but clearly established law establishing
this due process remedy without concluding that it – that remedy is clearly available here or that this test is satisfied here.
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.
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?
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.
Or a small pile, right? I mean it's still open – they're still open for argument below about how much of it was actually relevant, necessary and so forth. But I'm just trying to figure out exactly what's going on here. So the court seems to be saying that whether something is holding or not for purposes of EDPA – is an independent question of federal law on which state courts don't get deference?
Is that how you read it? I think so.
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.
So in a federal habeas case, the federal habeas court is supposed to independently determine was something a holding or not. Yes. And then having done so, then we have to look at what the state court did and say, did the state court reasonably or unreasonably apply that holding? Yes. And what did the holding clearly establish? Yeah. Does that – Does that make sense to you? I mean – OK.
It doesn't to me either because it seems like if there is a situation where there's a Supreme Court decision and it is unclear whether something it said is a holding or dicta, it would seem to me that it would be – A court would – a state court would not be unreasonable in saying it was dicta, right?
And yet EDPA does not impose deference on that judgment as I understand the law after this opinion. Yes. Which I think was not clear before, right? This is a summary – Summary vacature, I guess, not a true reversal. That is arguably making new law on habeas?
But on a question which apparently is now de novo, which is what is holding and what is dicta?
Yeah. Yeah. And who gets to decide? Yes. Yeah. Okay. Okay. A lot of questions here. One, who do we think wrote this? This is per curiam. Uh-huh. And – I still just don't understand. Why do we have this rule? Why are summary opinions per curiam? Why don't they just tell us? Who wrote them? Yeah. Why do we have this rule? Why is it argued opinions get a named author and per curiams don't?
Tradition. Okay, but why? I would want credit if I was writing this.
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.
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.
I mean sometimes there are cases like that and often those are maybe argued cases, right? But here where a case is just sort of plucked from obscurity, it's presuming because someone on the court found it particularly compelling. Yes. Right? Don't you think in a lot of these kind of summary reversal type cases, someone files a petition and someone on the court,
you know, gets motivated and says, you know, I think something, this court below got it really wrong, I know it's not, the kind of thing on which we would normally grant cert. It's a little fact bound. It's error correction. But I want to take this for a few weeks, try to write an opinion, see if I can get everybody on board.
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.
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.
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.
And do you understand the way the docker works? So it seems to be getting both relisted and rescheduled. Yeah. It's getting distributed, then rescheduled, distributed, then rescheduled. This is spring of 2024. Yeah. What's going on when that happens? Sometimes you just see relist, relist, relist, relist. This is relist, reschedule, which are not the same thing, right?
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.
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.
But it seemed like it plausibly could have been. Sure. But I really don't know. I mean, did you have a – nothing in the opinion really set off my radar in terms of recognizing someone's distinctive style. Yeah.
I heard suspicion. Some people on the internet say this must be just a spirit.
Is there some reason to think that or are they just saying, well, this is a case about a woman and therefore she would have been concerned about the gender angle or something like that? Is that really the – I think it's that.
Thank you.
Do you buy that theory or – if I said – tell me who you think it is. We know it's not Justice Alito because he concurs in the judgment and sort of says, well, I'm – go along. But basically he's trying to say, I don't think this person should win below. I agree that this principle is established. Yeah.
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.
OK. Just to mix it up or do you have – do you have some basis for that or are you just trying to be provocative?
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.
Just moving him. Don't you think he'd want credit for that, for showing maybe he cares about these issues? Maybe. Okay. Maybe he left a tell. Yeah. So I tried to get – Did you read the first letter of each paragraph? I didn't. I did – the other day I tried to get – Claude.ai, you used that one.
I think you're deeper into generative AI than people might have assumed because you're not always the tech-savviest member of this podcast. But you've got a couple of subscriptions, right?
I subscribe to both Claude and ChatGPT. I think Claude is better for legal stuff mostly.
Yeah, I tried to get Claude to analyze Procurium to tell me. who wrote it, and it refused. It seemed to violate its ethical principles. Yeah, I really don't know why. He said it would be improper for it to speculate. I'm sure there's a way I could have kind of negotiated with it to trick it into doing that, but I just, I don't have the time. I got to try this. I'll try this and we'll update it.
I'm sure someone can get one of the AIs to do that. Maybe – is it DeepSeek, the new Chinese AI that just got released that's screwing up the US stock market? Maybe it can do that. Or maybe we can get Adam Yudkowsky. Supreme Court litigator and sub-stacker who we've mentioned a few times who's often sub-stacking. Is that a verb? About the use of generative AI in Supreme Court. His view is that –
I think we should get rid of the justices and just have Claude write the opinions.
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?
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
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.
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 –
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.
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.
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.
Did they test whether there was any kind of liberal or conservative skew to the output of the AI in this experiment?
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.
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.
So you can't do any more experiments like this. We only have the one to work with.
They don't really – judges don't seem to want us to study them, right? They're very turf protective. Well, that's unfortunate. OK. Anything else to say about this one? Anything else to say about kind of – Shadow docket stuff, news. Obviously, there's a lot happening right now. How long has the Trump administration been in place?
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.
Is that going to destroy universities possibly? It depends on how long it lasts. Is our – Is our podcast funded by grants from the federal government in any way? Okay. That's relief. We don't have to shut off the podcast.
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.
I'll let you know. Well, we can just switch to a kind of lower tech format. We'll just record on iPhones and we won't edit. What I've always wanted.
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.
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.
So what's your over-under on the date that that reaches the Supreme Court?
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.
That's quite soon. That's less than a month. Okay. Fairly. All right. Well, I'm not going to – I'm not betting you're doing it this time. Yeah. I'm not going to take either side of that bet. I'm mostly just curious.
But if it goes on that timeline, could you imagine a scenario where the court plucks this one from the shadow docket, sets it for argument in April and actually decides this constitutional question this term? Is that crazy to imagine that happening? Yeah.
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.
Yeah. Maybe there wouldn't be the urgency to do it this term in the same way that there was with, say, the TikTok case where they really needed to be resolved before the law went into effect.
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.
But the court could grant some interim relief getting rid of the injunction without making clear its position on the merits, right? Yeah. Yeah. Okay. By the way, TikTok, where does that stand now? It's a little confusing, right? So you can't download the app anymore. If you deleted the app – Can you not download it? The app stores, as I understand it, are not letting new people download it.
But TikTok still functions for those people who still have the app because of this kind of ongoing uncertainty about what's going to happen. Right.
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.
Has that stopped it before?
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.
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.
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.
Okay.
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.
Could you have been disbarred for that? If you had basically misrepresented what you knew to be – So I had a backup plan. OK. OK.
There is a consent decree in the state of Illinois for the Society of Secular Humanists that allows them to officiate weddings.
Yeah, because some of these states have these rules that if you're a recognized church officiant, you can solemnize a wedding. But these kind of other mail order churches cannot. Yeah.
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.
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.
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.
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.
Well, that was an interesting detour. Well, we've been going – we had two cases we wanted to talk about. We've been going on a little bit longer than perhaps we should have. So is it time to bring our special guest to the podium? All right. So our special guest today is I think the newest addition to the Stanford Law Faculty, Oren Kerr, who joined in – 27 days ago. So Oren is coming to the podium.
He's about to sit down and get his own microphone. So Oren, you've been a long time listener and supporter of the show. OREN WELCHEY- I have. Thank you for being with us. And thank you for showing up. I'd say there's 40 or 50 of the Stanford faculty in attendance right now. But we had to pluck Oren from the crowd, the throng. So thanks for being with us.
So we've got a few things we want to talk with you about. So one is a theme that you've reiterated a lot on blogging and on Twitter, which is the – overall the kind of – the fact that Fourth Amendment cases have largely disappeared from the Supreme Court's docket. We do have one. Fourth Amendment-ish case to talk about with you. But the court sort of – was it maybe five years ago, six years ago?
Kind of stopped taking kind of core Fourth Amendment cases. Is this a search? Is this a let's apply the CATS test type cases? And you've speculated about this a little bit. I think we've talked about your speculation on the show, but now we get to talk with you about it directly. So why do you think that is going on?
Well, first of all, thanks for having me on the show. As you mentioned, a big, big fan, longtime listener. So happy to be here. Well, we can only speculate. We don't know, obviously. But I think there are a couple possible clues or a couple possible reasons. One might be that the good faith exception has expanded so far.
You actually don't have that many merits rulings on big Fourth Amendment issues in the courts of appeals anymore. So I follow published courts of appeals opinions in the Fourth Amendment space. There actually aren't that many. And any really notable ruling is going to be followed by a backup ruling that says, oh, and by the way, the good faith exception applies. There's really no remedy here. So –
And this is something that you predicted, right? In a case you argued, Davis versus United States. Yeah. So this may be sour grapes.
I realize there's a risk of that. But yeah, Davis is decided in 2011 and then it takes four or five years and then the cases really dry up. And so there just aren't – there are preexisting splits, but you don't have many cases where lower courts say, well, here's this deep split. We're going to pick a side and gosh darn it, that's the remedy. Like the bad guy goes free and that's it.
That naturally leads to a cert petition. Instead, you have almost everything is kind of advisory litigation if it's anything novel or anything like that. cutting edge, that's kind of where you end up.
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.
So, yes, this is another possibility that there's either they're fine with that or or maybe and I think this is a suggestion, Will, you've had on the show that that they're not sure of what they want to do with the exclusionary rule. So that maybe they avoid merits rulings because they don't want to open the door to the question of what the remedies for the Fourth Amendment might be.
It's also possible, if you go back and read the Davis case from 2011, Justice Alito says, Davis argues that this will dry up Fourth Amendment case law. If that happens, we might carve out an exception to our exception, allowing challenges to go forward.
Basically- For one person, right? For one person, yeah.
The actual person whose case is granted at Supreme Court and who wins, maybe they get the exclusionary rule. But I don't know exactly when they would know that their rule has led to that result. It's kind of a mystery passage, but at least there's a possibility. But Yeah, I think it's uncertainty over the exclusionary rule.
The scope of the good faith exception are probably significant influences on this. And it may just be, you know, the originalist turn in Fourth Amendment law generally is sort of started to happen or waited to happen. And really, if you look historically back. The justices have always been interested in the original – in the common law history and the enactment of the Fourth Amendment.
But there may just be uncertainty or – and this pains me the most, a lack of interest among the justices in this particular area of law. So who knows? But those are all possible.
Well, they just need to – they're waiting for your book, right? So you just have a book that just came out, which I tried to acquire. It was sold out on Amazon. I don't know if the backlog has cleared up and their new printing is out. But why don't you tell our listeners a little bit about your book?
Thank you for that opportunity. Appreciate it. Yeah, so it's a book, The Digital Fourth Amendment, and it's basically how the court should respond to the digital age, taking as a starting point that courts tend to respond to new technologies and craft new rules for these new technologies. And we've seen this already with Riley.
versus California and Carpenter versus United States, which you guys know very well. And so it's basically taking that methodology and saying, here's how we might get kind of a digital specific rules in Fourth Amendment law. What's a search? What's a seizure? How should warrants be executed?
Exceptions to the warrant requirement, kind of playing out these methodologies and looking broadly at how the law should
should appear and as you say that it's currently unavailable i like to think it's because you know it's no doubt going to be a bestseller but whether that's true or not i think there's a very small first printing and it should should be available in about two or three weeks okay they're doing another couple hundred thousand it sounds like okay i pre-ordered months ago and i still haven't got my copy i have never seen a copy myself so
All right. Well, we will look forward to seeing that in print. So let's talk about the Fourth Amendment case we do have to talk about. And it's not a – I guess this is not a criminal procedure case because this is a case that comes up in civil suit. But it – is a case that proceeds under the Fourth Amendment. This is a case called Barnes v. Felix.
Will, do you want to tell us some about this case?
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.
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.
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.
The whole thing takes a very short amount of time. Yes. We go from the stop to the driver being dead in just a matter of minutes.
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 –
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?
And that's, I guess, the question. I don't know. Oren, have I left out something?
Yeah, I think that's right. Exactly what was the question that the court was deciding was a big issue at the oral argument because there was – you had the very narrow issue they ran a cert on and then everybody wanted to jump into other issues especially as it became clear that there was probably a rough consensus as to the actual question presented.
So how far are they going to rule is probably – is open but it's not open as to – after the argument at least as to which side ultimately they're going to come down on.
It's because they're going to reverse the circuit and say you should consider all the facts.
You should reject the moment of the threat doctrine. As Justice Gorsuch pointed out at the arguments, no one seemed to want to endorse that approach. And then the question is, what do you say beyond that? Do you say just we send it back totally the circumstances or do you start giving some guidance as to timing and how to think about this and how to think about officer sort of created threats?
And it wasn't obvious that there was really any shared view, at least among more than two or three justices for what to say beyond that.
It did seem like it's a hard question to know exactly what should be relevant to that inquiry. I mean the court has told us in past cases, in these cases where a plaintiff is alleging excessive force under the Fourth Amendment, that you do a totality of the circumstances inquiry. But that doesn't answer the question of which circumstances are relevant.
And there were lots of things being thrown around. Do you look at the seriousness of the offense? How much time do you look at? Does it matter whether the officer is negligent or not? There was an interesting exchange at the argument where Justice Gorsuch says – You can't look at negligence because that's a subjective mens rea consideration, which is wrong. He said that's an objective test.
But at least teaching one-off criminal law, negligence is objective, right? As I understood it, not subjective. So I thought that was a little strange.
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.
It could apply to gross negligence though, right?
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.
The justices seem to want to say everything is objective, even when they introduce subjectivity into the tests. It's almost like they have some commitment. No, no, we're definitely following the old rules, even when they seem to sneak past that. I was also a little bit unsure of the negligence and subjective objective part of this.
I think the challenge here is that usually in Fourth Amendment law, everything is kind of rule-ified. Like there's a big rules versus standards backdrop to this whole case. So in Fourth Amendment law, usually it's clear rules. Like, you know, the stop is a seizure. And to do the stop, you need to have this cause. And to search, that's this cause. And sort of everything is very sequential.
Everything is very rule-based. There's like a rule structure. And what makes excessive force cases different is that it's just They have these gram factors. It's reasonableness. And sometimes that leads to a rule like Tennessee versus Garner, the fleeing felon case where there's a little bit more of a rule. But otherwise, it's just a standard.
And so it's like they wanted to do more than just send it back and say, just do the gram factor standard. But they weren't sure what, if anything else to say. And it wasn't really the case to bring it in because they just ran a cert on this narrow question.
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.
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.
I thought it was hard because the lawyer from the SG's office was clear. He's like, well, you know, there's sort of two questions. Like what will the Fourth Amendment allow and then what is a good idea?
And obviously if the officer is going to put the officer's own life at risk, it's a really bad idea to take a step even if you can come up with a doctrine that says this is constitutional to do this. It's dumb. So it's a bad idea. So – This wasn't really the case in which to get into those questions, I thought, even though a bunch of them obviously were interested in that.
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.
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?
Excessive force cases are a little bit grafted onto Fourth Amendment law. It's one of those things that you can see how it ultimately can be deemed, you know, the idea is that the use of force is a seizure in that, you know, especially in Tennessee versus Garner, which starts this, the shooting and killing somebody obviously is seizing them in that sense.
But I think a little bit, it's like a constitutional tort that seems to fit and that makes a lot of policy sense that kind of gets squeezed into the doctrine. So it's a little bit uncomfortable in that they don't quite know, like, how do you take what ultimately you'd think of is a jury question of the excessiveness of the force and put it into a rule structure, which has primarily been
enacted for application by judges in the context of motions to suppress. And then even in the civil setting, you have qualified immunity, which is also in the backdrop of the Barnes v. Felix case. Like, usually you're not going to get a jury question. And then what does the jury actually decide? There's some discussion of this in the Barnes
But that was also in the backdrop and I thought they didn't quite – Yeah, you've teed up the two other things I wanted to talk to you about. So first, the smaller thing is that question about who decides because at the argument, somebody said this is a legal question for the court, which I guess I had never really thought about.
I sort of knew that these civil cases – I mean if you're lucky, they get to go to the jury. But – I guess it makes sense if Fourth Amendment reasonableness is a legal question, that is a question for the court. And so the jury is just going to decide the factual predicates and then the court combines that with its own judgment about whether those facts lead to a Fourth Amendment violation.
It's a great question. I was thinking about this actually a few months ago. I'd love to see like jury instructions that are used in excessive force cases once you get past qualified immunity, right? So it'd have to be a case where there's disputed facts. They say we can't do this on qualified immunity. It goes to the jury. I don't know if they're pattern jury instructions or standard ones.
That's exactly what ends up being decided by judge.
I bet we have some listeners at home who litigate these cases who might be able to help us with that. Yeah.
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.
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.
Yeah. So that feeds into my the other thing that you mentioned about qualified immunity. So if as the court tells us, this is kind of a, you know, object. This is this is kind of a fuzzy totality of the circumstances inquiry. Are officers going to always get qualified immunity? Like except in the most extreme cases where an officer, you know, shoots a fleeing shoplifter in the back 20 times.
But in most other cases, if it's well, it depends on these 12 factors. Isn't that always going to produce qualified immunity where it's not going to be clearly established that the use of force was excessive?
Well, you'll have some cases where the court decides to read – Pearson versus Callahan gives them the discretion to either decide on QI or reach the merits. And so you'll have some number of cases where they reach the merits and presumably some where they say it's excessive force.
And then you start getting case law established as to where the line is and you get the typical qualified immunity analysis. So you can very slowly create cases on this. But I agree that to the extent you leave open the time period and that becomes a huge uncertainty – then the Fourth Amendment standard becomes really uncertain.
And then a lot of the cases will get resolved on qualified immunity, presumably.
What do you think, Will? Is it a qualified immunity hawk? Dove? I'm not sure.
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.
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.
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?
But it does – when you combine those things, good faith and qualified immunity, it does create this problem where the remedial structure makes it really hard for Fourth Amendment law to develop.
If there's always going to be a rule in whichever context, both in criminal context for exclusionary rule and civil context with qualified immunity, where courts can always just say we don't need to resolve it. I mean it does seem problematic to me.
Agreed. It would be one thing if they – were strong on the good faith exception and then rejected qualified immunity or vice versa. But instead, they are weak on both. I think basically the current justices are just not really comfortable with remedies in Fourth Amendment cases, or at least they have the same instincts in the civil and criminal setting.
So you end up in both contexts sort of avoiding merits rulings that would clarify the law.
That was something I always found puzzling about Justice Scalia because he wrote some pretty impassioned Fourth Amendment opinions in terms of the substance. But then as far as I could tell, not clear to me he thought anyone should ever get a remedy for those violations. Yeah. OK. Anything more to say about that case?
I came away thinking that there are some really hard fact patterns and I'm not actually sure what the right rule should be. I mean you can – paint hypos in different directions. So one, obviously, if a police officer just jumps in front of a car without any basis for doing so, holding a gun, the officer should not be allowed to just kill the person because, well, the car was about to run me over.
On the other hand, the respondent in the case sort of said an officer should not lose the right to defend himself just because he made some mistake earlier in the chain. That seemed reasonable to me as well. Right.
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.
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
I can imagine, too, some sort of a causation like inquiry, which I guess some of the lower courts had suggested, you know, maybe causation where you have some sort of you treat the issue well that you raised. To what extent is this the officer sort of doing the officer's task versus something maybe that's outside of that task? You can imagine that being relevant to it as well.
And maybe some future cases will ultimately resolve that. I just doubt. I'm expecting a very, very short totality of circumstances. Now, go figure this out below kind of opinion.
OK, but let's get it. We're going to get a concurrence from Justice Kavanaugh saying, you know, we shouldn't we shouldn't stop. You know, we shouldn't issue doctrine that stops police officer being able to jump on cars. Right. Don't you think he seemed pretty, pretty worried?
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.
All right. Anything more to say about that case? I think we – I think we're all on the same page based on the way the argument goes – went. It seemed like the respondents had – weren't really even willing to defend the strong version of the moment of the threat doctrine. And so a lot of it did seem to be how do you want to lose? What's a really narrow way we can write this opinion?
Do you think there's any chance for an affirmance?
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.
It would take more affection for Fourth Amendment cases and even, you know, quasi Fourth Amendment cases than I think the court has.
Yeah. I mean, they were clearly interested in trying to lay out more rules beyond just send it back on a reasonable standard. I didn't think there was any clear alternative that emerged, and just the lack of an alternative... Unless they somehow decide, as we'll suggest, like spend a lot of time on this and really come to some conclusion that was not obvious that the oral argument is possible.
But I didn't see the interest in that, at least in the argument.
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.
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
Well, are there any Fourth Amendment cases in the pipeline that they might yet grant that you've been tracking? Is there any prospect that we might get a really meaty Fourth Amendment kind of exclusionary rule case?
I mean, the thing is, there's all these new technology cases that I know you track that really would be helpful to get the court's guidance on a few more of those cases as those issues become more important every day. Is there anything that you think might come down the pike? I know that There's been various poll camera cases in the lower courts. The court hasn't seemed interested in those.
Anything like that?
Yeah, there's no shortage of issues, and there's some interesting petitions up there. The court called for response recently on a case involving the standard for emergency entry. Not a tech case, but there's a split on the standard for emergency entry. Issues there, but we don't have signs yet that there's something that they really are – raring to go on right now.
Okay. Well, we've got 10 minutes left for questions. So, Oren, maybe you could stick with us. If there's any particularly hard questions, we're going to send them over to you. So, Professor Kerr, if you're enrolled in one of his classes, are you teaching right now? I am. Okay. Okay. then then this is your opportunity to really put him on the spot.
So if you have a question, you're going to have to come up front. I'm going to hand you a microphone and we're going to we have a multiple microphone set up here. It's a little complicated so that we can record your voice for the podcast. So you are if you ask a question, you are consenting to that. But. No pressure questions. The first one is always the hardest.
There's always – people are nervous and it turns out that there are some questions in the audience. They're already so scared of you. You've been here for 27 days. Just exams I believe at the school are blind graded, right?
I'll take the pressure off because I'm not a law student and I'm not a Stanford law student. I'm in my undergrad, so potentially less pressure. I guess this is diverging a little bit from the cases we were talking about today, but from what I understand about the current Supreme Court precedent under Griswold, it would be – you know, unconstitutional for a statewide ban of contraceptives.
And I guess thinking about, you know, potentially what Justice Thomas was alluding to in his concurrence in that case, and just kind of, you know, the increasing restrictions that have been happening in states, how would potential, you know, workarounds to that, like, reclassification of emergency contraceptives that
may have been shown to have, forgive me for my phrasing, like abortive qualities or something like that. How might that challenge or push the limits of Griswold? And do you foresee during this term a case like that coming up?
Yeah, that's a really interesting question. And there's kind of a broader question there, which is how much is this court going to rethink substantive due process? I mean, the other issue that might be on the table is Obergefell, same-sex marriage. I think there is a push in some states to maybe start working towards setting up a challenge in which the court could reconsider that holding as well.
You know, you know, Will, you and Oren, maybe you have your fingers slightly more on the pulse of the conservative legal establishment. Although I think you're both a little bit on the outs, right? But maybe you can tell me what to predict.
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.
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.
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.
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.
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.
But I remember you took a similar position on Twitter in the immediate wake of Dobbs sort of saying, I don't think they're really going to rethink everything. Am I right that you said that? And if so, do you still feel that way?
Yes. I guess yes and yes. So I don't think these are the issues that they're going to want to take on. I don't think they feel that – I think there's sort of a hard thing to do, right? You've got to imagine what are the things that a group of nine people or six people or whatever the number is care about and think they really need to make changes on.
And I suspect this is just not a set of issues that they – that they want, that they care about, that they, I think that's just not that. Now that's just my prediction could be wrong, but I, I just, I don't see it. Whereas I think it's different too. Like with, with Dobbs, you could see that coming like a mile away. Like,
that was going to be a big issue and you could count the number of votes and you could say, okay, that's, if it doesn't change dramatically, it's going to come awfully close to that.
I just don't see the interest at least beyond one or two justices in, in, in sort of going back on those issues, especially I think an issue we need to think about, you know, they're going to have their hands full with, all the Trump issues that are going to be coming their way. They're going to be major, major cases about major questions of constitutional structure.
And Trump is going to be putting tons of pressure on them. And some of the time they're going to tell Trump no, and some of the time maybe they'll say Trump yes. But I think that probably becomes the focus over the next four years, probably, rather than those other issues.
Yeah, although some of those social issues, I mean, Those could be put on their docket by Trump himself. I mean I think – for example, I think I saw today Trump – the administration is moving to kind of oust service members who are openly transgender. I mean that's – there could be a lot of kind of issues like that.
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.
Well, I think we are out of time. And so the 10 or 12 people in line to ask questions are going to have to wait to come up to us after the recording. But this has been great. Oren, thanks for joining us. And for those of you both here in the room and listening, this is a reminder to subscribe to the podcast in your app of choice. Rate and review. Go to our website, DividedArgument.com.
Store.DividedArgument.com for merchandise. And I don't have a funny lead out today. I've been so intimidated by this forum that I don't have a good one. You have one lined up, right, Will? No, you're the funny one, Dan. Okay. All right. Well, that'll be it for today.
The case is submitted.