We spend most of our time on some meaty opinions on the orders list -- including separate opinions in Chapman v. Doe and Donziger v. United States -- and touch on the recent merits opinions. But first, we have an extended revisit of Cruz v. Arizona, which proves far more mysterious than we first realized.
We spend most of our time on some meaty opinions on the orders list -- including separate opinions in Chapman v. Doe (starting at 25:41) and Donziger v. United States (starting at 35:15) -- and touch on the recent merits opinions. But first, we have an extended revisit of Cruz v. Arizona, which proves far more mysterious than we first realized.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, Will, I just got done doing a very fun event with a friend of the show, United States District Judge for the district of Kansas, Toby Crouse. So, that was really cool. He's somebody who used to be the Solicitor General of Kansas and argued two super interesting Supreme Court cases, both of which are in the casebooks I teach from, Kahler v. Kansas, which is a cool case about the constitutionality of eliminating part of the sanity defense, and Kansas v. Glover, a cool Fourth Amendment case about reasonable suspicion. So, that was my day so far. Have you done anything interesting today?
Will: There's been a lot of interesting law in Kansas. I also discussed with a panel for our admitted students about why they should come to the University of Chicago rather than all their other options, hopefully.
Dan: And what's the answer? Just to learn jurisdiction from you?
Will: Well, the answer is that they have lots of professors who are interested in them, want to do interesting things. Of course, students did ask a lot about grades because they know a lot of other law school students.
Dan: You have the super weird grading system.
Will: Well, we have a grading system which sets us apart from all the law schools. Grades, you on the check, check plus.
Dan: Great effort.
Will: Yeah. We try to explain why grades are good, but also not as scary as they seem.
Dan: Yeah, we have grades. We have traditional grades here, like A plus and so forth. You guys have weird numbers. But yeah, that is a real grading system, unlike--
Will: We grade people on a scale from 164 to 186, which is very arbitrary.
[laughter]
Will: It used to be 64 to 86, and then that looked too much like it might be out of 100 [crosstalk]
Dan: That's also deeply arbitrary. Like, where did those numbers come from?
Will: Well, we added the ones.
Dan: No, but where did the original numbers come from? That's also weird. Is 86 the highest-- 86, what? What are the units?
Will: [laughs] Grades.
Dan: Yeah. I think the idea must have been at Chicago that the best anyone could ever hope to do was basically a B plus because they could never reach the lofty heights of the Chicago faculty. And so, that's the top grade, is that basically 86 out of 100?
Will: No, I think even the faculty, there are many people who went here and then are on the faculty, so it's more reserved for the ghost of Ronald Coase and David Curry or something.
Dan: Well, admitted students, go to Chicago if you want to be graded on a weird grading system.
Will: Or learn about jurisdiction.
Dan: Yeah. What can they learn about from me?
Will: What do you teach them, Dan?
Dan: I teach criminal procedure, both the criminal procedure courses. I'm teaching criminal law right now, but I teach con law next year just to switch things up.
Will: Good.
Dan: You've been pitching me on your casebook to get those extra $20 of royalties.
Will: They send you a copy yet?
Dan: Yeah, I've got yours. I've got all the biggies behind me on the shelf. So, going to work through those at some point.
Will: Cool.
Dan: Okay. So, various things to talk about. No, like one biggie to talk about. They didn't give us some huge opinion. So, we're going to kind of put together some pieces that we think add up to an interesting discussion. First one maybe is to revisit a case from last time, which is Cruz v. Arizona.
Will: Yeah, I feel bad about this because we talked about this on our last episode. This is the case about Arizona rule of criminal procedure, 32.1(g), where the Supreme Court held the Arizona Court's interpretation of its own rule was not a so-called adequate and independent state ground. Got into this capital case sort of a procedural argument that the state had maybe done something wrong in interpreting its own law.
Dan: To bar, to deny death row inmate the chance to make a federal law argument in that procedural context.
Will: Exactly. I'm struggling even now to say exactly how to describe the case, because despite us talking about it for a while and puzzling over some parts of it, I fear it's even worse than we said. So, I may have to sort of regret some things I said in the last episode.
Dan: No regrets.
Will: Well, I might have said it was just a set of my sort of my best opinion ever.
Dan: Well, yeah, you might have to walk that back although it depends on your preexisting conception of her opinions. But I'm going to set it up and you're going to lay it out, which is basically you have decided, and I think you've convinced me, that there's a serious problem with what they did here, and it actually doesn't make any sense. And no one seems to have acknowledged that it makes no sense, including us, but including all nine Justices and everybody else in the world. And so, I was pretty persuaded and I tried to kind of throw some arguments at you about why maybe you're wrong. But so far, I don't think either of us have landed on anything. So, why don't you say, what is this problem?
Will: Yeah, and before I do, I have to give one piece of credit. Not quite nobody in the world. There was an amicus brief in the case filed by Jonathan Mitchell and Adam Mortara, favorite team of legal geniuses, who did have a footnote in their brief, saying basically, "If the court was contemplating doing the following bizarre thing, that would make no freaking sense." [Dan laughs] And it's the thing that the court then did. [laughs] And maybe they didn't read footnote 11, maybe they didn't care.
Okay, so here's the thing. The adequate and independent state ground doctrine, the doctrine that the court used in Cruz for ignoring state procedural rulings is a threshold doctrine. The idea is once you say something is an adequate and independent state ground, that means that a federal court gets to decide the federal issue.
Dan: And so, usually it starts out as a rule about the Supreme Court's jurisdiction to review federal issues. It also is used in habeas proceedings, right?
Will: Federal habeas corpus jurisdiction to review a state issue. Either way, the federal court starts with it to say--
Dan: Yeah, I thought it was not a jurisdictional rule for habeas corpus. I thought it was kind of a rule of comedy.
Will: Jurisdiction is a word of many meanings, [Dan laughs] which we'll talk about later. But either way, it's a threshold issue about the court's ability to reach the federal law.
Dan: So, the state court said, "Here's some reason why we don't have to reach the federal issue," or here's some-- maybe they reached the federal issue, "But here's something else under state law that would support the judgment. And so, it would make deciding the federal issue kind of meaningless or pointless."
Will: Classic example of one of these. If the court again has some weird and ticky-tacky procedural requirement, says, "Well, we're not going to reach your big constitutional challenge to your death sentence because your appeal was not filed on red paper." Sometimes, the court can say, "Well, look, we don't care whether it's filed on red paper or not, we're going to reach it." So, normally it's supposed to be like part one of the opinion. It's supposed to be part one. This is not an adequate ground. Now, let's get to part two. And what the court did in Cruz v. Arizona is it wrote part 1 and not part 2.
Dan: Yeah, because the court does not decide the underlying federal constitutional issue at all.
Will: At all. And this is weird, I guess two ways to say a little bit why this is weird. One is calling something not an adequate independent state ground does not mean that the state court sort of did something wrong. But the whole point of the doctrine is it's a little softer than say, "Oh, the state violated the Due Process Clause by making stuff up."
Dan: Yeah. Which is a thing that they do sometimes. They said changing the law here is a due process violation, but that's not exactly what this is.
Will: Right. Yeah, there are cases they do that. They might do that in a different context, in the Elections Clause in Moore v. Harper, judicial takings cases. But it's not that. It's more like a rule that we have jurisdiction, whether it's jurisdictional or not. Opinion is more analogous to imagine a Supreme Court opinion on appeal from the Arizona Supreme Court, where the part one of the opinion is, "We have appellate jurisdiction," and then part two is, "All right, we remand." Yeah.
[laughter]
Will: We got here. And then, where do we go?
Dan: Yeah.
Will: In a particular, the question is like, "What is the Arizona Supreme Court supposed to do on remand?" Is there anything stopping them from saying, "Look, it's very interesting to know you guys don't think our interpretation of state law is adequate to defeat federal review. So, you all are free to review if you want to, but we think it's adequate for purposes of state law, which is what we decide. So, we're just reinstating the verdict."
So far as I understand the law, nothing would stop the Arizona Supreme Court from doing that on remand. They wouldn't be doing anything wrong. They wouldn't be [unintelligible 00:08:13]. They would just be following what they're supposed to do.
And this is what we talked about too. I don't know if the Supreme Court knows that. Maybe they do?
Dan: Why didn't somebody say that?
Will: So, the parties were trying to raise bigger arguments. The parties, the challengers for Cruz were going further and saying not only is the Arizona rule not an adequate independent state ground, but it violates the Constitution, it violates the Supremacy Clause under its previous case, Montgomery. They're making the kind of arguments were just alluding to. And if that's the argument, then the Arizona Supreme Court on remand would be required to consider the merits. But the Court didn't go there. Now, the court did sort of give us all a warning of this in that they actually explicitly narrowed the question presented to this adequate and independent state ground issue only, which I think probably confused the parties because they were all trying to figure out how to-- And so, the merits briefs kind of try to blend these issues together. Here's one guess-- Well, here are two guesses, I guess, I mean three guesses, maybe three guesses.
Dan: All right, lay them on me.
Will: All right. So, one guess is the Court knows full well that the Arizona Supreme Court doesn't have to do anything different on remand, but they just hope that once they get the remand and have sort of heard why what the Court thinks, they'll reconsider anyway. Sort of like a gently [crosstalk] doctrine. Yeah, it's a hit. And the Court sometimes does this a little different when somebody shows up to the Court and now suddenly somebody has changed their minds and the Court will sort of remand or GVR in light of something that's not strictly relevant, but you kind of hope the lower court will get the hint.
Option two is, they are planning to change how the AISG doctrine works and turn it more into the Due Process Clause and say-
Dan: I don't think they're going to do that.
Will: -even a state court cannot use an AISG to defeat view of federal claim. They've got to go to the merits.
Dan: That doesn't make any sense. So, they would have said, had to say so, don't you think?
Will: Yeah, well. And then, option three is some members of the majority wanted to go further. They wanted to decide this on kind of constitutional due process on Montgomery grounds, but they couldn't get everybody to join it. That seemed too radical.
Dan: And so, they did this incoherent thing.
Will: And so, the people said, "Well, if you decided only on ASG grounds, I could join." And either not everybody understood why that would be incoherent, or some people understood but didn't feel like they could do anything about it. You can imagine being a law clerk on majority and you're told, "Look, Justice Kavanaugh and Chief Justice Roberts say they'll only join if you say it's AISG only." And you can imagine thinking, like, "What the hell does that mean?" But figuring better to be a majority than not, I don't know if that's happened, but something weird happened. And if the Arizona Supreme Court sticks to its guns, then something really weird is going to happen. Presumably, people go back to the Supreme Court and say, "Is this really what you wanted?" And the court left to figure out what they were thinking.
Dan: Yeah. So, yeah, I don't have a great solution to that. And I think it's very, very odd, but it may just be mooted when the state court is like, "Okay, I see they want us to reach this issue. We'll reach the issue."
Will: Right. They could reach the issue. Again, if they reach the issue and still rule against Mr. Cruz, I think they're fine. You reach the issue and when you get to the facts and the harmless error or whatever, they could decide it on the merits, and then it could be we will never hear about this case again until the next AISG case where people try to figure out what the doctrine is.
Dan: Can I ask you a question that's non substantive about this? I was pulling up the opinion again. This is recording at the end of March. This came out at the end of February. And they've already put it in, like, a preliminary page proof for the Volume 598 of the United States Reporter.
Will: Yeah.
Dan: Didn't that used to take like years?
Will: Yeah.
Dan: So, what's going on?
Will: So, this is a new change just announced this year, is they now put the preliminary page prints for the US report on their website right away. Because it used to be that kind of-- I mean, they know what order the opinions given, and they know how pages work.
Dan: Yeah.
Will: So, it used to be that kind of [crosstalk]
Dan: It use to take years and years.
Will: Well, years and years to make them public, I think, and years and years to-- Well, I mean it's just [crosstalk]. No, you're right. Anyway, this is a new change. They've been posting them. It'll make it much easier to cite.
Dan: Yes.
Will: Of great relevance to law professors is when you want to cite a Supreme Court case in the past year or two, it used to be you always had to cite it using the Supreme Court page numbers, which then didn't transfer to whatever the US page numbers would be later. And now, we can get straight to later.
Dan: So, that's good news, I guess, for somebody. I don't think there's anything else to say about that other than maybe someone will clarify this, or probably not. We probably will never get clarification on why they did what they did.
Will: Yeah.
Dan: I would just think that if people understood what was going on, Justice Barrett would have said something about it in her opinion.
Will: Well, I mean again, you might worry they should say something about it, they'll say, "Oh, yeah, we are converting AISG into this even more robust constitutional doctrine."
Dan: I don't believe that they would do that though. I don't believe that in the majority there, you have Chief Justice Roberts and Justice Kavanaugh. I don't know if they believe that.
Will: Well, I'm really not sure.
Dan: Yeah, okay, what else have we got?
Will: One other minor update. I don't have anything to say about it, but I think the Moore v. Harper letters are in. But we also talked last episode about how the Court had divided the parties to discuss whether the North Carolina Supreme Court's grant of rehearing in the elections clause case now makes the decision non-final at the US. Supreme Court.
And all the parties have poured in their letters. As you predicted, they don't all come out on the same side. I think Neal Katyal and the chief respondents think the court still has jurisdiction. The United States says we think the court doesn't have jurisdiction, but frankly, it's not controlled by any existing precedent, and we don't really know.
Dan: Yeah, they say probably not, or they say it's kind of hard to say there's jurisdiction. It's a little weaselly.
Will: I think their view is something like, "We don't think you have jurisdiction. That said, you don't definitely not have jurisdiction. [laughs] And here are some theories under which you might have jurisdiction if you were curious."
Dan: Yeah, I think it's kind of one of these credibility building exercises that the SG's office is doing there. They're trying to not come in two guns blazing, even though I'm sure the administration has a strong view about the case.
Will: I sort of think it is the same-- I don't know if the sadder version of this was like, "We don't think you have jurisdiction, but we worry you're going to get mad at us if we tell you you don't have jurisdiction."
Dan: Sort of what I was saying.
Will: "Yeah, you can have jurisdiction if you want. It's okay."
Dan: "We don't really care."
Will: And my favorite was one of the bios, which was very short that just said, "Look, we didn't think you had jurisdiction in the first place. We raised all these finality issues in the bio, and we still think we are right."
Dan: In the jurisdictional statement or in the opposition, whatever those things are called. Yeah, there's two that are quite short. The letters by the North Carolina League of Conservation Voters and the letter on behalf of the Harper respondents, I don't know which ones are those. The named ones.
Will: Mm.
Dan: Basically, there's two other respondents who choose to write very short letters, including the one that sort of says-
Will: Yep.
Dan: -"The answer is still no, but we don't really need to say more about it," which is an interesting strategy. "We're not going to use this opportunity to dig in and make more of an argument. We're just going to kind of rest on what we said already."
Will: Well, I think that's a little bit of a "I told you so" probably. "We said don't get into this because it's not final. And look, haven't events proven us right?"
Dan: Yeah. [Will laughs] But then, you responded common cause represented by frequent flyer Katyal writes the longest letter of them all, saying, "Yes, there's still jurisdiction," but doing so in order to encourage the court to get in there, decide the issue now, and decide it against the independent state legislature theory.
Will: Yeah. I don't really know what to make of this. We don't have to talk about it very much. I have two thoughts. One, there was an oral argument in the North Carolina Supreme Court on some of the [unintelligible 00:15:57] proceedings in this period that I watched part of and did find very clarifying, in which both some of the lawyers and Justices expressed the view that the court had granted a rehearing on the precedent of Harper won the decision under review, but not on the judgment.
Dan: Yeah, I don't really know what that means.
Will: Well, it's easy if the cases were not both named Harper.
Dan: Yeah.
Will: [laughs] It's easy to imagine if we affirm one person's conviction, it's final. Then, another person comes along and says, "I'm similarly situated," but he's going to be screwed because his decision is final but you should now adopt a different role for me. It's a little weirder when they actually are in the same case. So, I don't know if that works, but at least that theory helped me understand a theory of what could be going on here. I started trying to make my own view, and then I realized I don't even understand how these exceptions to finality are okay and where they come from, and whether I should have some sort of original stake that like all of the Cox factors are invalid. So, I just--[crosstalk]
Dan: You haven't done the big grand theory yet. I read them all, and I actually kind of came down thinking that there's probably still jurisdiction for the reasons you just said, that there's a separate judgment, and the Court may be considering this kind of related case, but it's not exactly the same case. It's not the same judgment to reconsider the legal holding, but that's not exactly the same thing.
Will: Yeah, maybe. I'm looking forward to seeing how they weasel out of this one.
Dan: Yeah, it just sort of depends on, do we see this as something where they're looking for a way out, or are they just genuinely curious?
Will: I feel like you don't ask for letter briefs if you're just kind of curious.
Dan: Well, you might be genuinely curious, but still inclined to say it's probably okay.
Will: Yeah, that's true. I do think it's good the court did this. I think they should do this more in general. I think there should be more of these kinds of supplemental orders because sometimes a complicated issue comes up that you didn't realize how important it was, that argument, and you're going to have to say something about it that could potentially screw up the law of jurisdiction. So, it's good they asked.
Dan: Okay, so those are worth looking at. They're all mostly pretty short. Longest is ten pages. Okay, we're really kind of speeding through our list of stuff to talk about. Do we have anything like random news we should throw in so we don't like--
Will: Accidentally produce an hour-long episode?
Dan: Yeah, our episodes are all too long, and I feel like we need to kind of stick with precedent here.
Will: Well, should we have some sort of 20-minute digression about the best kind of watch?
Dan: We could do that. We could go back to Star Wars. Just something to really, really annoy frequent listeners like [unintelligible 00:18:36], who is also a Kansan. His name came up in my discussion with Judge Krause, famous Kansans who have argued before the Supreme Court. It's a Kansan, right? That's the right adjective? It's not like Kansanian or something-- [crosstalk] Kansasian? Yeah, I don't. I was hoping that there would be more stuff than that to talk about.
Will: We haven't talked about Munsingwear yet.
Dan: Well, yeah, no, that's going to be good. Justice O'Connor was named Woman of the Year by USA Today. Not sure why this is the year.
Will: They've never done that before? Yeah, she seems--
Dan: Yeah, she seems like she's a big deal. She's the first woman in the Supreme Court. Maybe she should have gotten it earlier. I don't really know how important an award that is, but she got it.
Will: I've never gotten it.
Dan: And you never will. But you did get to do the Scalia lecture at her law school.
Will: That's true.
Dan: Which we've kind of skirted around, but maybe we should talk about it more length because it was quite interesting, but not today. Anything else? Usually, they give us some kind of like gossipy thing to talk about, but I don't really think we've got anything great like that. I will say they're not giving us a lot in terms of opinions. They're being pretty slow, which means that it's going to be kind of a busier spring/early summer for us, for better for worse.
Will: Unless they find a lack of jurisdiction in all the cases.
Dan: That would make our lives easier, it would limit-- I guess we'd still have a lot to talk about because we'd have to talk about in each case why there was no jurisdiction, and then you'd have some theory for why they got the jurisdictional thing wrong that might persuade me. So, I guess we should do a few shadow docket opinions. Is that where we should go next?
Will: Yeah.
Dan: Do we still have to call it the shadow docket or is it just like the Orders list or something?
Will: It's fine with me if we call it the Orders list.
Dan: Yeah, that was going to be the first name of your article before you were persuaded. So, maybe, I guess going in chronological order, we have one, City of Ocala v. Rojas. And this one is interesting because it is somewhat of a disagreement on how to dispose of a cert petition between Justice Gorsuch and Justice Thomas, who in some ways are the most similar Justices on the Court, but then in a lot of cases, seem to end up disagreeing about a lot of things. This is a case involving an Establishment Clause challenge.
And if you were looking to kind of dial back Establishment Clause jurisprudence, these are pretty good facts for doing so. There was this terrible shooting spree in Ocala and then the community got together with law enforcement to hold like a prayer vigil for the victims. And then, some atheists came and were offended by it and filed suit. In terms of a vehicle, not the best vehicle for kind of-- I'd say for pro Establishment Clause folks. But the specific dispute here that the Court and the two Justices are interested in is standing. Can you explain the potential problem?
Will: Yeah. So, the question is that the complaint that the plaintiff had in this case is that she went to a prayer vigil, and she didn't like that it was a prayer vigil.
Dan: Yeah.
Will: That it's unconstitutional for the prayer vigil. So, she has a point maybe on the merit claim. But there is something in a lot of areas of the law understanding doctrine. A, the fact that you don't like something is not necessarily enough to have the injury the Court thinks you need to sue. And B, if you went and did it to yourself, it's especially not obvious that you have the interest to sue. And so, many cases, we demand a more concrete injury for letting you sue. Now the puzzle is the Establishment Clause is about-- like in many cases, it's easy to figure out what injury you'd need because you look at the nature of the right. So, somebody threatened to punish you or did punish you for speaking. Okay, that's standard to bring up free speech claim.
Dan: That's kind of like a coercion test, which is one theory.
Will: Yeah. Somebody some way punished you for praying or engaged in some other aspect of your religious practice. Okay, that's standing to bring a fair exercise claim. But the Establishment Clause is not exactly like that. By hypothesis, it bans some things that don't involve the government making you do something. It's sort of confusing to think about, what kind of standing would we demand there?
Dan: Isn't there disagreement about that? Don't some folks think it should be limited to kind of places where you're coerced into kind of accepting?
Will: Well, yeah, that's the ultimate question here. In this case, there's been a lot of change in the Court's view of the merits of the Establishment Clause already. The Court thinks a lot more sort of non-coercive monuments and other government observances of religion are constitutional than used to be. But there's still some set of them that are-- under current doctrine anyway, some set of them that are unconstitutional. And I think there's nobody in the Court who thinks the Congress could pass a law that just says, "Christianity is here by the official religion of the United States." There's nothing more, like nothing is entailed by that. It's just like there it is.
Dan: You say there's nobody who thinks they can do that? Or nobody who thinks that you can sue to challenge that?
Will: Well, maybe that's the problem. Nobody thinks you can do that. But Justice Gorsuch might be suggesting, Justice Thomas might be suggesting, not totally clear who could sue to challenge that. Yeah, and that's the puzzle. It's sort of bound up with the merits, but it's also sort of bound up with these broader jurisdictional questions. And I think all that Justice Thomas and Justice Gorsuch disagree about is, should we get into this issue now or should we get into it later? And Justice Thomas says, "All right, let's get into this question of whether people who are offended by Establishment Clause violations can sue about them." And Justice Gorsuch says, "Well, the 11th Circuit will probably fix it."
Dan: Yeah, which is interesting. He typically seems like he's more on the Justice Thomas' side. Let's get into it. He writes a number of dissents from denial, things like that. And he seems eager to resolve stuff. But yeah, he sort of seems to think, "This is going to be worked out. We don't really need to worry about it." But then, why wouldn't he want to just take the case and kind of just take the axe to this theory of standing?
Will: Maybe he doesn't have the votes to take the case anyway. Well, sometimes there are Justices who, in truth, would be happy to take it now, but there aren't four votes for it. So, they write about why we don't need to take it now.
Dan: So, they kind of pretend that they agree.
Will: Yeah, or they could go either way.
Dan: Maybe.
Will: But I will say this is also an issue where you might think it would benefit from more lower courts grappling with this. Now, that the court has said some things about the merits of Establishment Clause in a recent Gorsuch opinion, Kennedy v. Bremerton School District, you might think, let's get some smart courts appeals judges thinking through the standing problem first before we weigh in just so they can give us more to work with.
Dan: Yeah. I don't know.
Will: Maybe.
Dan: I don't know how much that actually ends up helping.
Will: Yeah. Me neither. And maybe they just feel like they have too many cases. They have like 30 or 40 cases or something.
Dan: Yeah.
Will: That's a joke because they have very few cases, for listeners who don't know that.
Dan: They're not working super hard. But I guess the fewer the cases, the more time they spend wasting on the small number of opinions they have. So, I think that was maybe the least interesting one because it really boils down to kind of a disagreement about take it now versus take it later.
Will: I agree.
Dan: The next one, it's either like much more interesting or deeply boring, depending on what kind of stuff you find interesting. I think hopefully for listeners of the show, more interesting. It's an issue that I've talked about at various points, which is the Munsingwear doctrine, which is a doctrine about when there's a situation where there's a lower court opinion sort of around there, and then something happens before it gets all the way to the Supreme Court and there's a possibility for it to be vacated, reversed, something like that. There's something that moots the case. Under some circumstances, the Court will still say, "Okay, as a courtesy, we'll give you an order vacating it under Munsingwear just to kind of strip the case below of any kind of precedential value because it evaded review."
Will: Yeah. You can think the original case that's the most stark right is, I sue you, I maybe erroneously win somehow and then also somehow I'm going to be able to have my cake and eat it too. I'll get my victory against you. But then, also I've stopped doing the thing you were upset about.
Dan: You mooted it and so the court can't resolve it.
Will: Right.
Dan: And if we don't have this, there might be let's say a circuit precedent that would establish your victory that you could use in future cases just sitting there and the Supreme Court never got to clarify whether it was right or wrong.
Will: Yeah, this thing I was not sure about is I think one set of Munsingwear cases might also be concerned even about the judgment.
Dan: Yeah, yeah.
Will: Like you concerned about issues of preclusion or something.
Dan: Yeah.
Will: Maybe the right version is, I sue you and you win. You, the defendant win. And then, you announce you're not going to do it anymore anyway, so I can't appeal. And so, simultaneously use this judgment saying, "You're right, you have a right to do what you're doing before, but also, I can't overturn it." If you had done the same thing before judgment, like in the middle of the case, you stopped doing the thing I'm accused of, we have a special doctrine to say that doesn't moot the case because you can't-- it's called the voluntary cessation doctrine. You like can't moot the case by voluntarily ceasing, but if you somehow do it after judgment, then you can kind of pull the same trick in the appellate chain. So, you can imagine the core case would be worried about the judgment. But the thing that we care about now a lot of the time is, yeah, the circuit precedent. We spent a lot of time litigating the doctrine in the 8th Circuit on something, and the Supreme Court won't be able to get involved.
Dan: And so here, this was an abortion case that arose before Dobbs. And so, you have a plaintiff who is challenging the petitioner's denial, the petitioner was a clerk. Denial of a judicial bypass for an abortion, this is a situation-- abortion without parental notification. There was a procedure that kind of allowed this to happen. Challenging this is inconsistent with the Court's abortion jurisprudence. It goes up to the 8th Circuit. 8th Circuit says the defendant, the clerk, doesn't have quasi-judicial and qualified immunity, so the suit can go forward. It's not barred by immunity. But then, Dobbs happens, and it makes the underlying legal issue irrelevant. And then the parties get together and say, let's jointly-- let's just agree to dismiss this. Everybody acknowledges that makes the case totally moot.
Will: Right. Yes. But the question is, what should we do with the lower court opinion?
Dan: Yes.
Will: Right? And I think the wrinkle here is, this is the weird thing about it, is that the parties also agreed that they would both tell the court that they think it should be vacated under Munsingwear.
Dan: Yes.
Will: That might have even been part of the deal, I'm not sure. There's some suggestion of that in the separate opinion by Justice Jackson we're going to talk about in a sec. But in any case, the parties say, "Look, we've agreed. Wipe the 8th Circuit precedent off the books. We don't need to worry about this anymore." But that's not the normal situation where one side is maybe engaging in some unfair trickery to defeat appellate review. Like, both sides agreed not to have appellate review, both sides settled the case.
Dan: Or just something else happened. I first encountered this issue in a case called Harper v. Poway Unified School District, where there was a student who is challenging the school's refusal to let him wear a T shirt, objecting to the school's kind of gay pride-- It's not a gay pride day, but that basic idea. And then, it went up to the 9th Circuit. The 9th Circuit rejected the student's claim in a very aggressive and expansive First Amendment opinion. Student graduated. The case now is moot in terms of any kind of request for injunctive relief. But there's this quite aggressive opinion by Judge Reinhardt floating around in that situation, Munsingwear, to take that opinion off the books.
Will: Okay, so three things here. So, one, in a sense, I think this is bizarre because in a sense, I think the Court will sometimes tell us, like, "We review judgments, not opinions." There's all sorts of stuff floating around there on Circuit Court opinions that isn't necessarily nationwide binding law until the Supreme Court says so. And in theory, nothing stops the Supreme Court from reviewing this issue whenever it comes up again in a real case. On the other hand, obviously the Supreme Court does care about the fact that there are sort of things floating around in opinions that things are wrong. And Munsingwear, these kinds of things sort of feel like they have a little bit of a compromise feel/Alexander Bickel feel to me, it's like the Court might think about trying to find some way in some of these cases, maybe you couldn't do it here. But some of these cases to rushing in and taking the case anyway and finding some reason to say it's not moot and somehow getting into it. And so, to stop them from doing that, to sort of step back from temptation, will say, well, acknowledge the case is moot, but you get to get rid of it.
Dan: Yeah. And the Court has already said, "Look, we don't do this very much, but we have this dissent from the Court's one-sentence, two-sentence order-- three-sentence order," if you count the citation granting Munsingwear relief. We have a multiple page dissent by Justice Jackson, who says basically, "Look, we're doing this a lot. We used to say this was kind of extraordinary. We should only do it very, very rarely, but we seem to now be doing it kind of a lot. It doesn't really make sense here where the party seeking the relief, agreed to dismiss the case and make it moot."
Will: Well. So, there's a new article that she does not cite but must have read by Lisa Tucker and Michael Risch forthcoming in the Florida Law Review, Precedent Unbound: The Supreme Court's Summary Elimination of Liberal Lower Court Rulings, that sort of documents this trend and says, "Since 2017, the Court has vacated as many cases as it did between 1994 and 2016." So, the past six years has been as many as like the 18 years before that, basically.
Dan: In the same way that there's been an uptick in certain other kinds of shadow docket type things.
Will: Yes, exactly, whether it matches exactly. But it's maybe part of the general trend of the Supreme Court issuing fewer merits opinions and more and more non-merits shadow docket stuff. And that's interesting. The substitution from merits cases to the shadow docket in general, as we've talked about, is complicated. Sometimes, you might think, "Justice Jackson, would you really be happy if the Court were just filling up with the docket with more Dobbs, Bruen, and Kennedy and some prepared missions and so on?" But I take the point that there's something a little weird about these kinds of-- this is like a non-transparent, maybe not totally lawful way to shoot down opinions you don't like.
Dan: Yeah. And it does seem like we don't necessarily have clear guidance or clear statement from the Court about, "This is exactly when we will do this, and this is when we will not do this," That it's somewhat like all other exercises of certiorari, it's discretionary.
Will: What's discretionary in general and the Court has said that sort of this decision about vacator is what it calls equitable.
Dan: Yeah, so it's doubly discretionary.
Will: Right. Exactly. So, it has a lot of play in the joints. Yeah. I've kind of wondered about this too. I've wondered whether maybe it shouldn't be a thing or maybe we should do it only for the judgment. We should Munsingwear the judgments to avoid--
Dan: Yeah, like a case where the party would be bound by some judgment, but that became moot sort of between the judgment being entered and then getting all the way to the court. That seems reasonable.
Will: Yeah, but the circuit court precedent, if the 8th Circuit doesn't like it, they can reconsider it on Bonk. But if the Supreme Court doesn't like it, they can reconsider it in a case where it matters. I mean, I guess maybe the problem is the 8th Circuit also couldn't reconsider the precedent.
Dan: But then who cares? It only matters if the case comes up again.
Will: Yeah, right. Now, the only thing I wonder in this case is the fact that there are these qualified immunity issues at play. Because qualified immunity is one of the rare areas where judicial opinions themselves have almost judgment-like status, because the approach to qualified immunity, which I don't totally endorse, is if there's an opinion on the merits saying that such and such conduct is not immunized or is unconstitutional, that can put you on notice for the next case. There's a whole Supreme Court case, Camreta v. Green, where the Court suspends the normal rules of mootness because qualified immunity opinions kind of work this way. So, I couldn't pierce through enough of the details to figure out if that's part of justification for this one.
Dan: They don't tell us, right? It's another situation where they don't tell us why they're doing it. [Dan laughs] But I guess eight of them agree, or at least don't disagree super strongly that this is okay here, because this is a solo dissent, doesn't mean everybody else agreed to do it, but some people might have voted against it, but then not cared.
Will: Yes, indeed. I'll just say on the meta point, it was an interesting issue for Justice Jackson to take a stand on. I kind of like it.
Dan: Yeah. I mean, it sort of shows some range. It shows she's digging into the kind of nerdy jurisdictional type Supreme Court practice stuff.
Will: Yeah.
Dan: She's not somebody who had spent a decade in the SG's office kind of doing those kinds of cases. So, it shows that she's someone who either was kind of paying attention to this stuff behind the scenes or has gotten up to speed really quickly. Either way, that speaks very well of her.
Will: Yeah, I agree.
Dan: Another one that is, I think, also pretty interesting and maybe more broadly interesting than that one, not just to Fed court's nerds, which is Donziger v. the United States. Now, this arises out of a really big and long running legal dispute, which is about what Texaco, now Chevron, did in Ecuador many years ago. The allegation is that they caused a huge amount of pollution there, and there's been this really long running litigation involving Ecuador and people in Ecuador versus what's now Chevron. And it's bounced back and forth. It starts out in the US and then goes down to Ecuador. Ecuadorian courts issue a judgment for like billions of dollars. And then, there's been various legal maneuverings back in the US to kind of weasel out of that. That's the big overarching background.
Will: Yeah.
Dan: And I don't know. I mean, this case has been going on for decades now.
Will: Yeah. I mean, I remember this was a hot case when I was in law school, and we would follow the latest--
Dan: It wasn't new. It wasn't new then either.
Will: Right.
Dan: There's been stuff going on for a long time, I think. But this is not exactly that case. This is a case that arises out of that case.
Will: Right. So, one of the more interesting pieces of drama that emerges from this is a lawyer, Steve Donziger, the plaintiff's lawyer, Harvard law grad, I think, at some point in this, gets held in contempt by the district court in New York. The district court believes his refusal to comply with all of its orders--
Dan: Wanted him to turn over his electronic devices and various other things.
Will: Yeah. Well, having won this gigantic judgment in Ecuador, there are all these questions that are fairly or unfairly people are asking about the plaintiff's behavior, how that happened and whether they did something wrong. And so, the district court holds him in criminal contempt.
Dan: Initially civil contempt, and then it becomes criminal contempt.
Will: Yeah. And then, tells the US Attorney's office to prosecute him, and they say, "No, thank you. We've decided it's not in our interests to bring a criminal prosecution for criminal contempt," at which point the district court decides not to take no for answer.
Dan: Yeah. They're like, "Okay, well, Executive Branch doesn't want to do it. Let me pull a different move," which is appoint my own prosecutors. Well, are they the court's own prosecutors?
Will: The court appoints somebody to litigate the contempt proceeding and then sentence.
Dan: Special prosecutors.
Will: Sentences Donziger to six months in prison.
Dan: Yep.
Will: And the question is, can they do that?
Dan: Yeah. And this is a weird one. This is something that it doesn't happen super often. And Justice Gorsuch writes this dissent from denial, joined by Justice Kavanaugh. Suggests some real meaningful interest in the case along the kind of Trump Justice axis in the court that comes in pretty hot, I would say. Scorching would be too strong, but really arguing that this is wrong, what happened here, violates the separation of powers. Also, interestingly, the way he kind of summarizes the facts, he's very uncharitable to Chevron. Uncharitable is the wrong word. He doesn't seem super sympathetic to their Chevron's conduct. His opinion is not really about the merits in the case, but I thought that was interesting.
Will: He does put an allegedly in the first sentence. Texaco "allegedly" polluted rainforests and rivers in South America
Dan: Yeah. But then, he kind of sort of seems to be criticizing them for asking for the litigation to be transferred to Ecuador. And then, later Chevron came to regret that move.
Will: Right. So, just also to add to the kind of funny lineup. Here we have Donziger, a plaintiff's lawyer, generally lionized by the left and represented by Steve Ladik, quite liberal law professor who go to the Second Circuit and the one judge who agrees with them is Judge Steven Menashi, a Trump-appointed judge in the Second Circuit. And then, they take cert and it's Justice Gorsuch and Justice Kavanaugh who are the most interested in hearing this issue. So, the lineup of the parties versus the judges doesn't necessarily match the standard political story.
Dan: Yeah. Although on the other side in the 2nd Circuit case is Judge Park, who's also a Trump appointee.
Will: Mm-hmm, that's true. And obviously, there are some Trump appointees not voting to grant cert in this case too.
Dan: Yeah. Well, just one.
Will: I guess we don't know. Maybe she voted.
Dan: Yeah-- [crosstalk]
Will: So, how do you think about this? This is a kind of like a great con law one issue spotter. Who are these special prosecutors? Because part of what's both [unintelligible 00:39:34] about the case, but also maybe shows you why the courts reluctant to get into it, is there are so many choices. At various points in the litigation, various people think-- I think there are at least four categories. Maybe these special prosecutors are officers of the United States who have to be appointed by the president and confirmed by the Senate, in which case definitely unconstitutional. Maybe they are so called inferior officers.
Dan: The officers of the United States, we'd call like a principal officer.
Will: A principal officer, sure. Well, yeah. Okay. Maybe they're so-called inferior officers whose appointment can be vested in the president alone, in the heads of departments, or in the courts of law. And if we're on that branch, maybe this counted as a courts of law appointment although doing that would require a statute. And there's a dispute whether there's a statute in this case. Or maybe we think that courts of law can only appoint people who exercise judicial power like clerks, and can't cross-appoint people in the executive branch, like prosecutors. Or maybe we think this is-- which one is this? Or maybe this person is not an officer of the United States at all, which I think is one of the [unintelligible 00:40:36] theory. Maybe they're just sort of limited just--[crosstalk]
Dan: Maybe just employees, in which case they can kind of do whatever. There wouldn't be necessarily appointments clause limitations on who can appoint them.
Will: And I'll just say, to me, none of those are obvious, I think, but also none of them are obviously wrong to me. Justice Gorsuch sort of works through some of those options to say, you can't think of them as being appointed by the courts pursuant to law because they are appointed under the Federal Rule of Criminal Procedure 42, which is not a law, it's a rule. But of course, the rule sort of has the force of law because of the statute. But the statute says that the rules aren't supposed to change rule's rights and it dives straight into these super hard, kind of Erie rulemaking questions. That's one way to go.
I think there's something to the suggestion that they're not officers at all. There is this traditional category of people who have a kind of a limited-term appointment. Like if a government agency just hires a lawyer to do a little bit of work for them on some case, they don't do that very often because they usually represent the Court of Justice, but if they did, for some reason, that doesn't necessarily convert that person into an officer who needs to be appointed somehow.
Dan: Yeah, it sort of depends. Seems like it should depend also on what stuff they're doing. Right. You wouldn't want to say that they can just have like a private lawyer who basically does what the Attorney General does but rotates every six months or something between different law firms.
Will: Well, I think at the founding there were people like privateers and military contractors who did very important stuff but on a very limited contract basis. And the thought was that the difference, Ladik brief says even though it's true, this is like a onetime thing that doesn't count here because the idea of those kinds of limited appointments is like if the person went away, the task would go away too. Whereas here, if this special prosecutor had resigned in the middle, we would have a successor in office or something. I don't know if that's right. I don't know what I think with the Erie problem. It's just some of this case rests on an interpretation of a case called Morrison v. Olson where the Supreme Court upheld the independent counsel statute later used by Ken Starr as an inferior officer who could be appointed by the courts.
Dan: The Scalia dissent in which-- don't they chant this at Fed Soc? [Will laughs] That's literally a thing that happened, right?
Will: [unintelligible 00:42:55] serious.
Dan: Yeah. No, there's something I read somewhere that there was like one of the Fed Soc conventions where there was this kind of live reading of the key lines from that opinion or something, and everybody was chanting along.
Will: This sounds like the myth about the Cravath lawyer's funeral where all the Cravath lawyers show up and chant, "Dead, the firm lives." I've been to a lot of Fed Soc meetings. There's never been a chanting of Morrison v. Wilson, although I would totally go to one.
Dan: Would you chant or just watch?
Will: I would lead as long as we have to include the Mistretta dissent as well.
Dan: It's a very well-written opinion.
Will: It's both a well written opinion and then it has this feature of many people feel like it was vindicated by events because Justice Scalia warned about the possible abuse of this statute and its incursions on executive power. Ken Starr's prosecution team seemed to make all Justice Scalia's fears come true. And then, when the act was up to be reenacted, everybody in Congress was like, "Let's not reenact this and not do this again." So, some people have suggested that in a way, Scalia's dissent in Morrison v. Olson is better law than the majority, if that's not a thing the Supreme Court ever said, although I think they don't cite it very often.
Dan: Yeah, but it's interesting though, because I feel like some people might have changed their view about that. Like in the Trump era, people maybe sort of saying--
Will: Yeah, "Well, we like independent counsels again." Yeah. Although the independent counsels under Trump were not-- what was interesting is they showed also how much an independent council can accomplish even without a statute like this, because the statute elapsed, and the independent counsel could in principle be fired at will by the executive branch.
Dan: Yeah, special branch-- they don't still call them independent counsel.
Will: Special prosecutor. Sorry, not independent, but special. And yet still Trump couldn't bring himself to get the independent counsel fired. Special counsel, special counsel fired. This is one of those things, on the one hand I'm like, "How could the court not want to dive into this?" But on the other hand, sometimes I feel like when it's just not at all clear what the path is, like even what's the right way to think about this, or what are the questions, sometimes the court's not super eager to dive into that as the vehicle.
Other thing I noticed and trying to figure out what's going on is there then also do seem to be a bunch of questions about waiver. So, the Second Circuit said that some of these issues had not been raised in the district court and therefore decided them on plain error. But then the cert petition said that, A, that was wrong and B, the SG waived the plain error argument because the SG's theory of the case is different from the Second Circuit of the case. So, not only are there like four different theories floating around in the case, but I couldn't even get my head around which ones were in the case and what posture, which is sort of a shame.
Dan: Yeah. And so just looking, I found it helpful to look back to the Second Circuit decision. And there, the Court says they are officers under the Appointments Clause, but inferior officers, but they're also supervised by the Attorney General who can, I guess, remove them, and that it was okay for them to be appointed as they were.
Will: Mm-hmm. Yeah.
Dan: And Justice Gorsuch thinks that's real wrong.
Will: Yeah. He thinks that it can't be that a rule of civil procedure is enough to authorize courts to appoint executive officers.
Dan: Yeah.
Will: Both constitutionally and as a matter of the Rules Enabling Act.
Dan: Yeah, which is not crazy. But what did you think about that? Were you persuaded by that?
Will: I think it's not crazy, but first of all, I think on the constitutional side, you would have to overturn Morrison v. Olson, I think. A little confused about that but Morrison v. Olson does say you can have courts appoint executive prosecutors, and so you'd have to overrule it. And, oh boy, I still don't understand how the rules of civil procedure work. Maybe other people do, but what Justice Gorsuch says about the rules of civil procedure, not counting as by law, might be right.
Dan: How do you know? I feel like that's an issue that would be right in your wheelhouse.
Will: Yeah, I know. You would think.
Dan: His problem is not just the problem about were, they appointed the right way? As I understand it, he really doesn't think that judges should be able to appoint prosecutors at all, right?
Will: That's just-- right. So, that's Morrison v. Olson. Morrison v. Olson says judges can appoint prosecutors. Now, Akhil Amar taught me in constitutional law that was definitely wrong. And Akhil Amar and Justice Gorsuch both think it's definitely wrong, maybe it's definitely wrong. But that's one-- to be clear, he's asking for the overturn of a major Supreme Court precedent. Then, that leads us to the backup argument. Maybe it is wrong, but I'm not sure. My memory is also that an early draft of the Judiciary Act did authorize the Supreme Court to appoint US attorneys or interim US attorneys. Not the final draft, but that was on the table. And then, people try to figure out that they take that out.
Dan: Wouldn't those be principal officers in the United States, a US attorney?
Will: I don't know. It depends on how much authority they have.
Dan: I mean yeah, they have a lot of authority.
Will: Yeah. I think the Supreme Court may never have squarely held that lower court judges are principal officers, although it has a footnote where it notes that everybody's always assumed that they are. But you can imagine theory in which the Supreme Court could appoint lower court judges.
Dan: Would they have life tenure still?
Will: Yeah. No, they'd still have life tenure, but maybe they could be internally appointed, like Israel.
Dan: Well, not for long, right?
Will: Well, Jason Patel.
Dan: Yeah, there's this big battle in Israel where the Prime Minister is trying to reform the judiciary. I don't have the comparative expertise to know something about it, but it is interesting to be watching what's going on there in light of the debate that I've been a participant in about court reform in the United States.
Will: Yes.
Dan: Maybe if we have listeners who are experts in Israeli law and politics, they can teach us something.
Will: They're trying to teach me something all the time.
Dan: I just can't learn.
Will: Okay. Yeah. I'm not saying, Justice Gorsuch is wrong, but I'm saying there's a lot going on here.
Dan: Yeah, no, it's complicated. I just read his thing and hadn't really thought about this case, and I was like, "Oh, it's pretty persuasive. How does a court get to do this?" Have people who are prosecuting people within. But then, you look at the Second Circuit opinion, it's definitely a little bit messier, but it is troubling atmospherically at least, that you go to the US attorney, the US attorney says, "No thanks, we don't want to prosecute." And then, the court can appoint other people, kind of overturn that exercise of prosecutorial discretion and say, "Well, I'm hiring you because I want you to prosecute the case and not decline to prosecute the case."
Will: On the other hand, it's troubling to think that a federal court can issue a binding order, and whether that order gets enforced depends on whether the executive branch wants it to. Like, the courts don't have a lot of powers. One of the powers they have is the power to issue binding judgments, binding orders.
Dan: The contempt order.
Will: Yeah. This comes in the context of contempt order, but I've thought about it and written about it in the context of a final judgment of unconstitutionality. And so, this is one thing that also makes me sympathetic to the other theories. As you know, this comes up in the Civil War when there are possible habeas corpus proceedings that maybe the executive branch is ignoring, and there are various debates whether the executive branch has to comply with the judicial order. And one of the phrases I remember, I think it's Lincoln's Attorney General Bates uses in debating this and talking about some of the powers of the courts because he's kind of trying to concede the courts do have a lot of power, but doesn't apply here. And he says, "Well, of course everybody knows that the courts can call out the entire power of the country to enforce their judgments. They can command a posse." There are some references to how it used to be if a court issued an order and it wasn't followed, the court itself could go to the community and demand that the posse enforce the judgment. And that's of little bit of what it's doing here.
Dan: Yeah, except for very different--
Will: Well, anyway, I never managed to write the paper about the posse power, and it was one of those things that's going to make me sound kind of too weirdly--
Dan: How does criminal contempt work? I mean, the judge says, "You're in contempt," and then it has to go be prosecuted. Isn't there some things for inherent contempt where the judge can just immediately order someone to prison for a contempt that occurs in the judge's presence?
Will: I think so, but isn't that still criminal contempt?
Dan: Yeah, but does it always have to be run through a prosecution? Or are there sometimes when the judge can just enter an order saying, "You're in jail now"?
Will: I think if it happens-- yeah, I think you're right that if it happens in the judge's presence and maybe there's some other-- [crosstalk]
Dan: If someone is just screaming obscenities at the judge, the judge can just say--
Will: Yeah, and if that doesn't require an executive branch, we don't ask special [unintelligible 00:51:20] questions about that.
Dan: Yeah, but that could be something that we think is within the judicial power. And here, isn't there agreement that this is executive power that's being exercised?
Will: There's agreement by the-- I think all of the parties at this stage of the litigation agree about that, but I'm not sure everybody in this case agrees about-- I'm not sure everybody to have waited on this litigation at any point agrees about that, and it's not obviously correct.
Dan: Yeah, but if it's not correct, then the Attorney General shouldn't have a role at all with respect to these special prosecutors, if it's judicial power that they're exercising.
Will: Yes, sure. Or, you could invite the Attorney General's view as a matter of and maybe the president could still pardon you, I guess.
Dan: I guess, I don't know.
Will: It'd still be an offense against the United States, I think.
Dan: Yeah.
Will: What I like about this is it has a lot of layers and a lot of moving parts.
Dan: Yeah. And I can see why they maybe didn't want to wait into it. It would have been great to see it granted, because I would love to see 60 pages of Supreme Court level briefing exploring all the different wrinkles.
Will: Yeah, me too.
Dan: But we are not going to get that.
Will: There's a lot of stuff-- they have a lot of room in their docket, so they could spend them on this.
Dan: Yeah. Now, I mean, this is a very unusual situation, and so they might have just decided, "This doesn't come up that often. Kind of interesting. Super, super messy and complicated. Let's just let it go."
Will: Yeah. There was a case that were granted a while ago, maybe the term I clerked sort of about this, about private prosecutors that arose out of DC.
Dan: Yeah. I think that was dismissed my year.
Will: Yeah, cited in the Chief Justice, and I think four Justices wrote a dissent from the DIG, which is rare, and that opinion to those concerns are also cited in the circ papers. And that one too, you could say, "Look, how often does this happen? It involves you know complicated statutes and a lot of restraining orders and special issues about federal law [unintelligible 00:53:04] in DC." [unintelligible 00:53:13] It comes up often enough. We've got some weird precedence about it.
Dan: Yeah. And it is interesting that you have Gorsuch, you have Kavanaugh--
Will: Yeah.
Dan: They're not able to peel off-- Thomas and Barrett at least, they're not able to peel off both of them because then you would have had four votes to agree on.
Will: Yeah.
Dan: So, I don't know. I get it.
Will: Yeah. Too bad.
Dan: In terms of other stuff to talk about, in theory.
Will: There were some merits, but in theory.
Dan: Yeah. We could talk about-- I'm kind of just inclined to let these go. Luna Perez v. Sturgis Public Schools, which is about the ADA, the Americans with Disability Act and the Individuals with Disabilities Education Act. It's not interesting.
Will: It's interesting that Justice Gorsuch writes an opinion for the little guy.
Dan: Yeah, well, he likes some little guys, right?
Will: Yeah, I know.
Dan: And then, we have, I guess, like-- [crosstalk]
Will: I just wanted to get credit for it.
Dan: But that's kind of a theme in his opinions, don't you think? This is the little guy being crushed or someone's trying to crush the little guy. Unless it's the frozen trucker.
Will: A little guy with a technical legal argument on his side, you've got Justice Gorsuch. I mean, I guess Donziger is kind of a big guy.
Dan: But a big guy in jail for six months. The other one, Wilkins v. United States, is an opinion about the Quiet Title Act, which is something-- some act, I had never heard of this, where you can go file some suit to challenge the United States' claimed interest in real property, and it has this 12-year time limit. I'm sorry.
Will: Dan, are you serious? You've never heard of the Quiet Title Act?
Dan: I've heard of Quiet Title actions, but you know I'd never really-- [crosstalk]
Will: The Federal Quiet Title Act?
Dan: I don't know, when does this come up in my life? I've never needed to resolve federal law property rights issues.
Will: I clerked in the 10th Circuit, and the Quiet Title Act came up all the time-- [crosstalk]
Dan: Okay, yeah, because you had like cattle ranches and stuff and easements and things like that.
Will: A complicated overlay of federal and state and county and private claims, a lot of--
Dan: Look, I've probably heard about it. It's just never something I've thought about. It has this 12-year time limit. There's this long running series of cases about whether various kinds of time limits for filing actions are jurisdictional, in which case they're automatic, nobody can do anything about it. If you're a day late, you lose, you're screwed. Or non-jurisdictional, in which case, they could be waivable lots of other things, consequences that flow from that. And some are yes, some no. This one is not jurisdictional.
Will: Right. Well, it's not just some are yes, some are no. It's like almost always they are no.
Dan: Yeah, there's a time limit for filing an appeal, notice of appeals.
Will: Yes, but about 15 years ago, the Supreme Court sort of started on the warpath on these. There were a bunch of time limits and limits that courts had called jurisdictional, and Justice Ginsburg sort of started a cleanup campaign to go through a bunch of them and say, "No, it's not jurisdiction in the technical sense."
Dan: And to be clear about what that phrase even meant.
Will: Yeah. And every once in a while, there's one that is or where she loses about whether it is, like the timeline of filing appeal and a couple more. But I think if you take-- I mean, I'm just estimating, if you take the 15 to 20 cases like this, I think 13 to 18 of them are non-jurisdictional.
Dan: Yeah. Fair enough. Here, we have an opinion by Justice Sotomayor, 6-3. She's joined by Kagan, Gorsuch, Kavanaugh, Barrett, and Jackson. Dissent by Justice Thomas, joined by the Chief and Alito. The dispute is not super interesting. A huge amount of it is just about, how clearly did our prior precedent resolve this question? Does the precedent say it's jurisdictional? And we have to follow that. I don't have a ton to say about it.
Will: Justice Thomas has an argument that's not exactly precedential. It's just like, the United States has sovereign immunity.
Dan: Yeah.
Will: Quiet Title Act is a waiver of sovereign immunity. Therefore, the Quiet Title Act is jurisdictional. Now, I think that's not the way the court thinks of it now.
Dan: Well, clearly not.
Will: Also puzzling because sovereign immunity as jurisdictional is also confusing because sovereign immunity is waivable, and jurisdiction is not waivable.
Dan: Yeah.
Will: And sovereign immunity arguments can even sometimes be waived not just by statute, but in litigation. I have questions about this, but this opinion is by Justice Sotomayor. This might be one of the best Justice Sotomayor opinions I've ever read.
Dan: Until next week when you discover some fatal jurisdictional flaw in the jurisdictional analysis.
Will: I'm not saying anything occurs is fatal. I'm just saying, I don't understand what's going on.
Dan: You think it was wrong. You think it was grievously wrong.
Will: I think something is missing, let me put it that way. Yeah. I'm not saying you can't have an opinion that goes, "We have jurisdiction. Okay, we're done." There's nothing that stops the Court from doing that. I think it's a little bit of an advisory opinion, but it's probably okay. It's just a really weird opinion to write.
Dan: Yeah, but it seems to rest on some kind of incorrect premise about the way the law works if they write that and they seem to think it has some-- because if that's the only thing you were going to conclude-- I'm sorry, this is taking us back to Cruz, wouldn't the result just be affirm? It's like, "We have jurisdiction to resolve the issue. We're not doing so, affirm."
Will: Yes. The part where you vacate and remand for consideration--[crosstalk]
Dan: Yeah, that has to be-- [crosstalk].
Will: Okay. It doesn't have to be wrong. On my view of vertical precedent, a lower court has more obligation to follow a higher court precedent if the higher court has jurisdiction than it does if the higher court doesn't have jurisdiction. Like, part of the reason lower courts have to file a Supreme Court precedent is because of Supreme Court jurisdiction. So, I could at least imagine some cases where knowing there was appellate jurisdiction would affect how the lower court should decide the case. I'm not saying the court was going there.
Dan: Yeah. Okay. Well, that took us back to Cruz. I don't really have anything else to say about Wilkins, and I think that might take us to the end. This is a good time to break.
Will: Yeah.
Dan: So, thanks very much for listening. Please rate and review the show on your podcast app of choice, such as the Apple Podcast app. That does help new listeners discover the show, but also anything direct you can do to help new listeners discover the show would be appreciated. Send it to people. Our listenership has kind of steadily grown, but my sense is that there's still probably a lot of people in the universe who haven't heard of the show and might benefit from it. I don't think that we're ever going to get to millions of listeners with our quirky jurisdictional conversations, but there's some people out there. Go to our website, dividedargument.com. We put transcripts of the episodes up relatively soon after they air. store.dividedargument.com. We do have some merchandise. You have one of the T-shirts, Will, right?
Will: I do. I wore it last time when I saw you.
Dan: It was great. I was pleased that you were kind of fanboying for me.
Will: I had this unfortunate, embarrassing thing happen at the gym the other day. I was wearing the shirt, and somebody saw it and saw the motto on the back, "Unscheduled, unpredictable," and said, "Oh, that's cool, man. Unscheduled, unpredictable. I want that to be my motto in life. Where'd you get that?" And then, I had to say, "Well, actually, it's the motto of my own podcast." [laughs]
Dan: And then, did that kind of deflate the conversation?
Will: No, no. Maybe they might be listening now.
Dan: Okay. Shoot us an email pod@dividedargument.com. I'm not great about responding to those, but we do read them and sometimes incorporate any feedback or thoughts. Leave us a voicemail, 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the court for giving up a steady diet of obscure jurisdictional problems for us to tangle with.
Dan: And if you don't hear from us for a while, it's because we're in prison, because we've been held in criminal contempt by a federal court.
Will: But judicial power, executive power?
Dan: Well, you'll find out in six months when we get out.
[Divided Argument theme playing]
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