Back in the studio after a couple of fun live shows, we discover that the Court has finally given us too much to talk about. We discuss the new Trump Administration's first shadow docket adventure, a number of interesting solo opinions from the orders list, the decline in summary reversals, and the overall quality of oral advocacy before the Court. We then take a deep dive into the Court's opinion in Glossip v. Oklahoma, a capital case with many factual, jurisdictional, and remedial complexities.
Chapter 1: What is this podcast about?
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Bode.
And I'm Dan Epps. So Will, the court is finally starting to give us some material to work with. It makes our jobs a little easier. We don't have to do one of those argument previews, which are a bit more work. Instead, we can just download some PDFs from the website and give you some medium-hot, lukewarm takes on them.
Chapter 2: What recent developments have occurred at the Supreme Court?
Well, it's also, you know, it's our first... non-live show in a while like a true back in the studio i think of it such as it is yeah in our respective studios also known as our faculty offices yes you should demand a separate studio and like the the adjoining office there was an earlier time when the law school was actually thinking of creating a podcast studio in one of the
room somewhere in the before they realized that the technology was simple enough that with a minor investment you can just do it in your office yeah i think mic qualities have also increased there was a time when i will be trying to put styrofoam padding or whatever around my office trying to stop the echoes just because you hadn't talked to me and gotten my my advice about what to buy my quality has always been good you just needed to know what to get okay
me and you need to know how to turn on the right mic which has been a problem for you but and you yeah that was that one was also your fault though because you should have noticed one well you should have noticed one minus off i think i by the way am i on the right mic i believe so um we will uh we will hear from the listeners if you are not but you sound fine yeah i feel like the the studio shows also have a different vibe from the live shows even when we don't have a lot of
time to call on the audience i feel like you can tell the difference it's a little higher pressure right if i you know you know we do uh we don't go straight to tape on these studio episodes we do sometimes uh do a little editing sometimes both of us say stuff that's wrong and then we realize in real time and you say editor can you fix that can't do that in a live show yeah no several people said that we seemed a
Really? No one said that to me. Your friends are jerks. I think they... Tell them to say it to my face.
Okay.
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Chapter 3: Why is there a decline in summary reversals at the Supreme Court?
Okay. So lots of little things to talk about that are kind of fun. We had a sidebar article earlier this week by Adam Liptak, and it's sort of a recurring kind of feature he does for the New York Times. which I love because he often engages with legal scholarship in a way that other Supreme Court journalists really don't do. He's profiled one of my pieces.
I'm sure he's profiled multiple pieces of yours in that forum. And here he is talking about a piece that's actually by a student, a student note by Calvis Goldie, our gold law student at Columbia, about summary reversals. It's actually kind of interesting. Mm-hmm. making the observation that there's been a huge decline, at least by percentages.
I mean, the absolute numbers have always been relatively small, but a decline in summary reversals at the court. Right. A form of shadow docket ruling.
Right. Summary reversals are when the court gets a cert petition, and then rather than scheduling oral argument and full briefing on the cert petition, they're like, nah, we've seen enough. They just reverse the opinion right there. When I wrote the article on the shadow docket, half my article was about the Supreme Court's summary reversals.
And kind of complaining about how they're inconsistent and unpredictable in those, right?
Yeah. I mean, I was both defending the idea of summary reversals, because there were some people who thought it was just inappropriate. But then it sort of highlighted this idea that the court was engaged in error correction, but in a kind of... you know, hard to chart way, or at least part of what I did in the article is try to chart. Okay.
You can now see like the EDPA docket is half of the summary reversal docket. And that makes sense. And then other things were harder to figure out.
Yeah. So that does seem to accord with my general impression. I mean, there, there's no shortage of other shadow docket things happening, but your kind of classic error correction, some revs, as we say in the biz do seem to have declined.
Yeah, they're down to like one a year from like four to six a year. It's got to be real embarrassing if you're the judge who gets the one summary reversal of your decision. I don't know. I mean, we have these judges come through Chicago all the time, and sometimes I ask them, do they care about being reversed? And they almost always say no. Maybe that's just what you're supposed to say.
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Chapter 4: What are the challenges with the Supreme Court's shadow docket?
We had a judge in the building yesterday, Judge Toby Heitens from the Fourth Circuit.
He's great.
Yeah, who is a judge who had argued a bunch of Supreme Court cases prior to taking the bench. He was an assistant to the Solicitor General. He was the Virginia Solicitor General. So a really smart guy. I think our students really enjoyed his visit.
Did you ask him about some reversals?
He has not been summarily reversed. But if he ever is, I guess I'll follow up.
Yeah. Now, I would say one thing is I do wonder if some of the summary reversals have just moved over to other kinds of shadow docket things. Like when you ask the court for an emergency injunction stopping the Ninth Circuit's ruling about whatever, there's a way in which that's partly a summary reversal claim. You're usually saying, the Ninth Circuit got this wrong on the merits.
Just reach out and stay right now. They got it wrong on the merits.
But those are usually very different types of cases. Those tend to be... you know, a lot of cases where lower court is granted some kind of injunction and they're running to the court to roll it back versus the kind of core. I mean, I feel like, you know, there used to be a lot of criminal cases in both directions, right?
You know, like you said, the EDPA cases, the Sixth Circuit or the Ninth Circuit granted relief to some state prisoner on some Ground that really is hard to reconcile with the limits on federal habeas relief in EDPA, Anti-Terrorism and Effective Death Penalty Act of 1986. And those aren't moving over to other shadow docket things. Maybe lower courts aren't doing that as much.
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Chapter 5: How are oral advocacy standards evolving at the Supreme Court?
except that four can grant and so if the four if it's five to four summary reverse and the four want to put the majority through oral argument they can they can force that but it's not that it takes you know it's not that it says takes five votes to do the summary reversal and then it takes six votes to also stop having oral argument if that's what you want to do
All of the others. Yeah. Although, I mean, the Liptack article does quote things where Alito in 2021 says, we have a practice of not issuing a summary reversal unless at least six of us agree.
Yeah.
Right. So, I mean, there is some, there does seem to be some six rule.
I mean, I understand Justice Lita said that. I'm just not sure he's totally being accurate about his own rules.
Well, just from my understanding was that this was not the rule when we were there as clerks and that this emerged. I sort of heard murmurs that this had emerged after that fact, after that time period.
Okay. but I do think it's a natural side effect of the four to grant rule that you could I mean so because if you have five to some earlier verse and the four say fine we're going to make you sit through the oral argument and the five are like oh that's a pain but it's sort of annoying for everybody you could see how then you would
But if you have five to summarily reverse, four who just want to deny, and the rule or the practice requires six, then you just deny, I think, in that situation. Right.
I guess what I mean is you could see how it would emerge as an equilibrium, that the four – it's sort of like a chicken. The four would – their preference is to deny, but they can't do that, so they punish the majority by making them – Sit through an argument in a tedious case that they regard as backbound. Those arguments are now like three hours long. And there's no time limits anymore.
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Chapter 6: What legal issues are highlighted in Besant v. Dellinger?
I think 20 years ago, not in every case, not if you had, like if it was the, it was the wrong side of some, it was the plaintiff side of some issue where a lot of the usual suspects who are at big firms would have a, you know, a business conflict, even if not a real conflict. I think people weren't, weren't necessarily beating your door down and there weren't as many exporter clinics. Yeah.
But I also think that there must have just been a learning among the clients that this is the thing that you should expect. And thus, even when inexperienced lawyers want to keep the case, I think they're pressured to moot the case a bunch, to consult with people who know some of their practice has probably gone up. So I just think there's been – it's good.
Yeah. Yeah. I'm not sure I've listened to every single one this term, but I don't think I've listened to one thus far, which there's a clunker, kind of a one where you're just kind of shaking your head. And I do feel like when I was clerking, we got several of those. Oh, yeah. I feel like in some prior years there have been. So I don't know. I would be interested in hearing from the
scotus bar whether they agree with my assessment and if so if they have plausible hypotheses well they're gonna be biased but i'd be curious well not necessarily i mean there might be people who are members of the i mean supreme court bar who are very critical of other members of the bar right so i mean someone could think that they're a great advocate but you know the other folks are not so i'm not sure fair enough yeah that's interesting
Okay, so we have this slew of orders list opinions and some shadow docket stuff. I guess we should talk briefly about Besant versus Dellinger.
Yeah, I think so. I think this is the first of the Supreme Court kind of Trump shadow docket cases, right? First.
Is this the only one you think they'll get in the next few years?
I think there'll be probably some more, maybe even before this episode, actually, to our listeners. You know, as people surely know, there are tons of district court cases where district courts are issuing TROs about various things the Trump administration has done in the month or so since they've been in office.
And it's going to raise a lot of things, and a lot of those are bubbling up to the court. But the first one that the court has gotten and ruled on is Besant versus Hampton Dellinger, special counsel of the Office of Special Counsel. Son of famed Supreme Court advocate, former acting Solicitor General Walter Dodger. Okay. I was wondering about that. Yep. That checks out. That's interesting.
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Chapter 7: Why is the Fourth Amendment arrest power significant in Gonzalez v. United States?
yes so they said you know you should get into it and the supreme court uh so it gives us like the procedural posture okay it just gives us the procedural posture it says you know the tro will expire you know in you know when was this was written uh when the when the filing was made eight days when the opinion was written five days and now TRO is expiring today or has expired today.
Then it just says, in light of the foregoing, the application to vacate the order of the United States District Court for the District of Columbia presented to the Chief Justice and by him referred to the court is held in abeyance until February 26th when the TRO is set to expire. In light of the foregoing. Right.
Is that even a holding?
I have no idea what that means. I like what that is. When this came down, I was texting you and I was like, I don't understand. I don't understand the disposition. The disposition is nothing. There's no reasoning. It's just a statement of facts in light of the foregoing holding abeyance.
Right. Well, it's funny because the knock some of us used to make on the shadow docket would be like, well, you just get results and no reasoning. And now you get neither result, no reasoning.
This is like the apotheosis. This is the ultimate shadow docket. So we have Justice Sotomayor and Justice Jackson wanted to straight up deny, so do nothing. And then we have a dissent from the order holding the application in advance by Justice Gorsuch. joined by Justice Alito.
So then... So they would grant for effectively the reasons that Judge Katsos would.
So the obeyers are the Chief, Justice Thomas, Justice Kavanaugh, Justice Kagan, and Justice Barrett.
So it's great. They did nothing and it was 5-4. Well, they can't even do nothing. Yeah. Doing nothing for no reasons, 5-4.
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Chapter 8: What are the implications of the Woodward v. California double jeopardy case?
Yeah. Okay. Another one from Justice Sotomayor I also found interesting, if I can find this one. Woodward versus California. This is the Double Jeopardy one? This question is basically, you know, there are things – so if you get acquitted, if you get 100% acquitted, right, the state cannot later come back and retry you.
Yeah.
But the question is there are certain kinds of – things that a court might do that maybe aren't labeled acquittal, but maybe they still have the same function of being an acquittal. So something could be a dismissal and yet nonetheless be an acquittal. The rule, as I taught it and understood it, is basically whether the order resolves
some or all of the elements in the defendant's favor, some of the elements of the offense. So basically it's kind of like, is this about kind of saying there's not enough evidence, something like that, something in that vicinity. It doesn't have to be correct. That has to be what it's about rather than I'm dismissing because prosecution
needs more time, prosecutorial misconduct, all sorts of other things that are not about basically the proof, the elements of the offense. And here, this California case, defendant was tried twice for murder. Both times, majority of voters wanted to acquit, but the jury ends up And then the trial court relies on this California state law procedure that allows a dismissal.
And sort of says in doing that, well, absent new evidence, the prosecution would be unable to meet its burden of proof in subsequent trials. Dismissing would further the interests of justice, et cetera, et cetera. And so basically, long story short, the state courts have said, applying their own state law rule, this is – not an acquittal.
The argument here is, well, there's a federal definition of what constitutes an acquittal for double jeopardy purposes. I think that's correct and that this qualifies as an acquittal because they came back nearly three decades later after getting some DNA and now want to retry this guy. which is kind of crazy. It's kind of a very unusual situation. It's an amazing posture.
Yeah. Well, I feel like what the district court, this is interesting, because what the district court did is a little ambiguous, right? Yeah. The court says, a dismissal of this case is not meant to criticize the work done by the prosecution. There is simply a lack of evidence on which to convict the defendant. Okay, that sounds like a lack of evidence. Yeah.
Without new evidence, the result of this case will be the same as the successive trial. Now there is new evidence. Right. And the result has not been an acquittal, of course. The result has been a hang. Due to the lack of evidence in this case, a jury will never be able to reach a unanimous verdict or guilty. It appears that justice would best be served if the charges were dismissed.
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