We announce an exciting new partnership with SCOTUSblog and introduce the show to new listeners. We then return to the mysterious origins of the Chief Justice's "no, no, a thousand times no," debate the Court's new policy designed to maintain secrecy, and then take a close look at Galette v. NJ Transit Corporation, a sovereign immunity decision in which the Court may, or may not, have paid attention to Will's amicus brief.
We announce an exciting new partnership with SCOTUSblog and introduce the show to new listeners. We then return to the mysterious origins of the Chief Justice's "no, no, a thousand times no," debate the Court's new policy designed to maintain secrecy, and then take a close look at Galette v. New Jersey Transit Corporation, a sovereign immunity decision in which the Court may, or may not, have paid attention to Will's amicus brief.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Back in the studio after what I believe to be a successful live show on your home turf in Chicago.
Will: I think it was great. Episode was great. Students were excited to see us. We got a big crowd. We should do it again.
Dan: I would love to.
Well, this is a day with some news on the Divided Argument front, which is, we are now a partner of SCOTUSblog, which is exciting, which I don't think is going to change the show in any meaningful way, but does mean that we're going to be part of the SCOTUSblog ecosystem. The podcast will be on the SCOTUSblog website, and maybe in some other channels, and we'll be in conversations with the other folks in that universe, which include Advisory Opinions and America's Constitution. But the main thing we're hoping that will change, is that it will expand our listenership, maybe double it from two dozen people to four.
Will: [laughs] No, that's a great company. SCOTUSblog is the go-to place for serious Supreme Court coverage, right?
Dan: I think so. I am generally pleased with what The Dispatch has been doing since it acquired SCOTUSblog. It seems to be really committing to extending, improving the site. Some people had expressed concerns that in recent years, there had been less commitment to the site and it was maybe phasing out a little bit. I think they've really reinvigorated it and I am excited to see what they do. So, here's hoping this is our most listened-to episode yet. If that's possible, should we do anything to introduce listeners to Divided Argument, Will?
Will: Yeah. Well, we just did.
Dan: Well, I mean, should we tell people about what the show is? We just explained that we're SCOTUSblog partners, but we bill ourselves as an unscheduled, unpredictable Supreme Court podcast. We record episodes whenever we want, hence unscheduled. So, sometimes there are episodes in short succession, sometimes longer gaps, just depending on what the court is doing and what we are doing. There's a crossover that is going to be featured on Advisory Opinions, where we announce the partnership. Why don't you say how you described us?
Will: Yeah. So, I would say our comparative advantage of all Supreme Court coverage, is that we focus on questions of law and the legal analysis in the court's opinions, which sometimes is quite technical and sometimes it's not, and we try to unpack that and make it accessible and figure out whether it makes any sense.
To the extent, the podcast has a subversive mission. I think it's the mission of taking two people who have a lot of different normative priors across a range of legal and political issues, and seeing if we can nonetheless talk about controversial cases in a legal register and make some progress rather than the talking head debate model that's common on a lot of other formats.
Dan: I agree with that. Although the thing you just said about strong divergence on normative priors, I'm not sure if that's really that true. It's not like I'm a Marxist and you're a fascist or something. I think we're both fairly moderate. You're on the right, I'm on the left, but I think our views on a lot of things converge. You're not a pitchfork-wielding social conservative.
Will: That's fair. You could complain about the podcast that while the title promises a lot of division and a lot of argument, sometimes we are insufficiently divided and don't argue enough. But I do think we persistently come at things in a different way, and the cases the court takes are the close ones where those differences might lead us to be on opposite sides of the court if we were Justices.
Dan: That's possibly true. Yeah. We often focus on cases that don't necessarily divide the court on those traditional partisan lines precisely, because they're, I think, maybe more interesting to talk about and we can offer a little bit more that is unique to the show.
Will: Yes. I would say, yes, we are also famous or infamous for our attention to pedantic jurisdictional questions and small questions of Supreme Court practice and typography.
Dan: And other pedantic things. So, should that segue us into follow-up from a recent episode?
Will: Yes.
Dan: So, two episodes ago we mentioned this, but didn't have time to circle back to it in fall at the previous episode, the Chicago live show. In the tariff's decision Learning Resources, there is a line in the footnote where Chief Justice Roberts says, "No, no, a thousand times no," right?
Will: Yup. Quotation marks quoting something.
Dan: Quoting nothing as far as we can tell, no citation. This is not a legal point really at all. It's more like pedantic question. But we were curious what that was intended to be quoting. I came up with an initial hypothesis based on googling, which is a reference to a 1930s Betty Boop cartoon. We put it out there for the listeners. This is exactly the kind of thing that our listeners are useful in contributing to, and they did not disappoint. I think we got a couple dozen emails about this.
I don't think we completely ran this to ground. I think we got a lot of plausible answers, different points in history, different versions of this that you might point to. I don't know if you want to summarize everything we've gotten. There's just too many of these to give credit to everybody for which we apologize.
Will: Yeah. All right, so, here's a brief summary of the state of play. The OED puts the earliest usage at 1896, but one listener found it in a 1726 play, Charles Johnson's The Female Fortune Teller, and another listener independently corroborated that date through newspaper databases. A third listener, who pointed us to the OED entry, also cites Henry James and Agatha Christie and notes that James used "A thousand times yes," suggesting the construction was already so familiar by late 19th century that writers were riffing on it.
Several listeners raised a Pride and Prejudice connection where the line, "Yes, a thousand times yes" appears. But that line is from the movie adaptation, not the novel, where the proposal happens entirely off the page. One particularly interesting find Noël Coward reportedly declined the role of Dr. No in the 1962 Bond film by telegram, "No, no, a thousand times no," which is a great way to turn down anything. And one listener reports that the phrase lives on in a novelty "No button” sold as a white elephant gift, [chuckles] raising the question whether that's somehow how it ended up in the Springer footnote.
Dan: You press it says that among other things. I don't know, I don't have one myself. I don't know if should have our respective universities buy them for us?
Will: I kind of want one. So, I don't think we've gotten to the bottom of it, but we've gotten a lot of interesting nominations. [chuckles]
Dan: The one thing we really didn't get to the bottom of was what the Chief Justice thought he was referencing with the quote marks. Without quote marks, it's like this is such an obvious thing that everyone's familiar with. So, I'd love to have answer from him.
Will: Yeah.
Dan: If he is listening, which he is not.
Will: Yes. Mr. Chief Justice, if you would like to write in and let us know, we would really appreciate it, but we're not going to hold our breath.
Dan: Yup. All right. So, that was our main follow-up. I think there's other things that have popped up in the inbox that we don't have time to get to. We're continuing our ongoing attempts to offer breezy episodes. So, let's see if we can pull it off.
I think you thought we should maybe briefly talk about an article by Jodi Kantor that is actually now about a month old, but that you noted we had never mentioned yet. This is an article which I'm quoted a little bit. And the article is called How the Supreme Court Secretly Made Itself Even More Secretive. I love that title.
What the article is about is apparently the court has now asked employees inside the building-- I don't think it's totally clear exactly who to sign real non-disclosure agreements in the form of contracts, which had not been the case before. I think prior to this point, law clerks, I believe, signed some just code of ethics, but it had no legally enforceable provisions. And now, there's some kind of NDA.
The times did not actually get their hands on one. It says, “People familiar with them said they appeared to be more forceful and understood them to threaten legal action if an employee revealed confidential information.” Clerks and members of the court support staff signed them in 2024 and new arrivals have continued to do so.
Will: Well, it's funny, obviously, just that the court is concerned about leaks, obviously, and it's trying to take more measures about it. And so, of course, there is a leak about this. I find that headline funny in a "Will you stop kicking yourself" kind of way. I don't know, it's like, “We are struggling to undermine the Supreme Court's norms of confidentiality. We are winning.” [chuckles]
Dan: Yeah. I wonder how this would actually work. I guess I've never totally understood how NDAs work. Whether there's liquidated damages or the contracts specify you will give up exactly this amount of money if you talk or something similar. Do we really think that the [chuckles] Supreme Court is going to file some action in the District of Columbia Superior Court against an employee and ask for $50,000 if that person spoke to the media? I don't know.
Will: I doubt it. Although if somebody who read a book like one of these tell-alls, like had Lazarus’ Closed Chambers or something, is it inconceivable that the court might go to the publisher and try to stop the book from being published?
Dan: As a breach, yeah. But is that the right-- Do you get to do that? Do you get to sue a third party under an NDA? I guess so. Maybe. I don't know, I have no idea.
Will: Maybe not. Or, maybe they would get the rights to all the proceeds or something, I don't know. So, several people across the ideological spectrum told me how outraged they were by this. Government entities shouldn't be using NDAs. They’re like, “Government has whatever rules it has, but--
Dan: It is kind of unusual. Typically, I thought government information was protected by the classification system which is backed up by criminal law.
Will: Well, the executive branch can protect things by the classified information system, because they control what's classified and they control whether it's prosecutable for it. The Supreme Court, as far as I know, is not a classification authority and wouldn't have anything to do about it if say the executive branch was okay with the leaks. That's one view would be like, this is just kind of self-help. I guess, I don't know how Congress works. This must come up in Congress. Do members of Congress have-- [crosstalk]
Dan: Can you hold people in contempt for leaking? I mean, Congress leaks all the time.
Will: Do members of Congress have their staff sign NDAs? Maybe.
Dan: Yeah, I don't know. But I certainly don't remember seeing a lot of [chuckles] lawsuits by members of Congress against support staff for breaches of NDAs. I don't know.
Will: So, I guess I have three quick reactions. One is, as to law clerks, my guess is this doesn't add a lot to what was already the norm other than to communicate a sense of seriousness. I do think-- [crosstalk]
Dan: Which was already if quite clearly communicated to law clerks in my view.
Will: Yeah, I think that has been uneven over time. I think it has gotten more and more serious, but I think-- [crosstalk]
Dan: I felt that was communicated quite clearly to me as a clerk. Is that not the case for you?
Will: I felt it was communicated clearly to me, but I felt like I knew people who did not seem to have had it clearly communicated to them. Now, whether that was something lost in translation.
Dan: There might be people who didn't hear the message.
Will: Right.
Dan: I mean, at least my year, there was an orientation meeting with the Chief, gave a little talk to all the clerks, and said something about this, and then I think around the same time as when we were asked to sign that form.
Will: Anyway, the sense of seriousness could be useful. I suppose for non-law clerk staff, this could be more significant. You might think as to law clerks, the court can make sure they're never admitted to the Supreme Court bar, the court can report them to their bar authorities, etc. Now, in today's world, that won't stop everybody. But to the extent that you thought there were problems of leaks with staff who did not care about their standing in the legal profession, maybe this is a bigger deal. I'm not sure. And maybe the threat of a lawsuit might be a bigger threat if you're a non-lawyer with a more modest government salary and so on.
Dan: Yeah.
Will: And then, the third thing though, is that I do think this puts the Supreme Court more and more in the unfortunate equilibrium. I feel like one way you maintain norms is just a sense of like, there are norms, a lot of these things are not. We don't have a lot of rules, we don't have a lot of threats, just we're all on the same team, and there are strong norms, and you understand that if you breach the norm, there would be consequences, but it doesn't have to be laid out, because everybody gets it.
The other equilibrium is one where you have to have much more explicit rules, much more explicit schedules of punishment. People do misbehave sometimes and you have to really come down on them. That's the way most of the real world works, obviously. And it takes a small and special institution to survive without that kind of stuff. It seems like the court used to be that kind of institution and maybe it's just sliding into the unfortunate equilibrium, the regular kind.
Dan: I think so. Generally, I think this is certainly true on the criminal law side that norms and respect for law are the main thing that prevent non-compliance with legal rules and not actually threat of sanctions. I think in a world where people think the rules are stupid and they're only worried about sanctions, you do see a lot of non-compliance, particularly where people think they can get away with it.
I don't know if this is truly self-defeating, but it has a self-defeating feel to it that the angrier the Justices get about leaks and the more they start chiding people and looking for ways to punish them, the more ridiculous they seem to the people subject to these provisions. So, I don't know if it's going to accomplish what they want it to accomplish.
Will: And how do you think about the journalistic role here? One thought would just be like, “This is exactly what journalism is supposed to do. These are powerful institutions and they are not entitled to have secrecy or any special norms. They're supposed to be accountable to us.” Maybe this is just my affection for the Supreme Court. It does seem like if you take an institution that does have its own norms that help it function better and you come in as a reporter and destroy those for a couple of stories. Am I wrong to have misgivings about that?
Dan: You can have misgivings, but I think that this is the prerogative of the press. If people want to talk to them, I think that they should report it. I think one thing that's interesting, is that this article is the product of a leak itself. So, [chuckles] the fact that this article was published reinforces the very problem that these NDAs were meant to solve.
Will: Yeah. I get it's a prerogative, but the press has to use judgment to decide what to uncover. The press could do just exposés on Will Baude and all the bad things he's done in his life, like a series of-- [crosstalk]
Dan: But you're not sufficiently newsworthy.
Will: That's true. Thank goodness. Although they've done exposes on people who were no less newsworthy than me. No more newsworthy than me.
Dan: Well, your sins are smaller,
Will: Maybe. But also, there's some sense. Like, that would be a bad thing to do to somebody, and so they should do it. If that person is really newsworthy, there's a justification for it. But just the fact that people are curious wouldn't be a good enough reason. Or, when they do that, they often let people-- There was some famous graffiti artist who they've chosen not to out, because-- [crosstalk]
Dan and Will: Banksy.
Will: Because his name's not especially newsworthy.
Dan: Although it would be quite newsworthy.
Will: I think this is true. I think The New York Times knows his name and just doesn't report it.
Dan: Interesting. That's interesting. Yeah, I don't know. I think that there's a strong public interest in understanding the way government functions, and I think that I understand why those institutions themselves prefer to have secrecy. But as the court's public standing has diminished, the willingness of people inside the building to talk more, and I think that includes the willingness of some Justices to talk more, has led to more inside-the-building reporting and not sure what there is to do about it.
I guess I don't feel any need to criticize the press for doing its job. I do think how the court works as an institution is important. This is something I've said in writing previously and something I said to the Times that there is an interest in people knowing exactly how they're being governed. The opinions themselves don't tell us everything. They don't tell us how the Justices are actually deciding cases, they don't tell us whether the reasons that they're giving are the real reasons, and so on.
Will: Yeah. This is a classic point, though. There are trade-offs sometimes in terms of how well the institution functions and how transparently it functions. So, if you talk to people who are professors at a state university in one of the states with relatively strong transparency laws, just harder for them to email than anything and sometimes that lowers the quality of faculty meetings and a whole range of things. Maybe the trade-off is just categorically worth it, because better to know that our institutions are behaving badly than to not know that they're behaving well. But I don't know.
Dan: Yeah, I'm not sure what else there is to say about it other than this is something that is inevitable to some degree. The Brethren was written at this point half a century ago, and I think on the basis of some Justices talking and wanting to complain about Chief Justice Burger.
Will: Yeah, fair enough.
Dan: All right. Okay. So, did you have one thing you wanted to mention from the orders list?
Will: Yeah. So, today, we had an orders list that has one interesting dissent from the denial of certiorari by Justice Gorsuch, which is an Apprendi question, just wanted to flag, which is whether Apprendi applies and how it applies to violations of supervised release, in particular the petitioner here, Jason Burnett, is somebody who pled guilty to a federal crime with a maximum sentence of 120 months, got 105 months, then later on supervised release got sent back for another 13 months, 105 plus 13 is 118, and now has been sent back for another supervised release term. That's going to tick the number up over the original statutory max.
And so, he says, “Look, under Apprendi, facts that are necessary to send you to prison for more than the initial statutory max should be found by a jury. So, I should have a jury on the question of whether I've violated my supervised release.” The consensus in most circuits is, “No, supervised release is different.” Justice Gorsuch says, “It seems wrong. We should get into this.”
Dan: The court touched on, but they didn't have a majority to resolve this issue in Haymond a few years back, right?
Will: Yes.
Dan: And that was a case that involved supervised release. But in my memory and now I'm forgetting the details, is that the provision there allowed the government to actually extend the sentence beyond what the supervised release was.
Will: Yes.
Dan: That was more extreme than this.
Will: There are a lot of different permutations. In this case, the total number of months on supervised release is greater than the original statutory max. That's the clearest problem. But even in ones where it's not, there's a way in which-- Like, once you've been sentenced to one sentence, to then have the sentence reopened and expanded on the basis of non-judge-found facts, I think still raises some--
Dan: Yeah.
Will: The judge concluded that it wouldn't have been appropriate to sentence you to more than 105 months without additional facts.
Dan: But isn't the whole idea of supervised release, is that you're free conditional on you continuing to engage in good behavior?
Will: Right. But that would make more sense if you got the original. If I said, “Look, I'm giving you 100-- I think we used to have more of a metaphor of the suspended sentence. I'm giving you 120, and the 20 are going to loom over your head for a while, is different from I'm giving you 105. You do not deserve more than 105. But if you reoffend, you might deserve more. Maybe that's just formalistic. Anyway, I do think the court should get into this at some point, although I fear they have some Apprendi allergy that may just-- [crosstalk]
Dan: Yeah. So, no other Justice noted concurring with Justice Gorsuch's dissent or noted that they would have granted. So, if the liberal Justices wanted to hear this, they could have. So, not sure what's going on here.
Will: Well, we know that Justice Jackson thinks Apprendi is wrong, right?
Dan: Yes, that's true.
Will: So, she may be a vote.
Dan: That's true. So, maybe there were two other votes. I think we never got a conclusive answer on whether she was the law clerk who worked on Justice Breyer's Apprendi dissent. But I like that hypothesis of mine, and so I'm going to go with it until proven wrong.
Will: [laughs] Okay.
Dan: Okay. Now, one merits case, a case that is, I think, one of particular interest to you. It's a case in which you and Steve Sachs also filed your own amicus brief in this case. It's called Galette v. New Jersey Transit Corporation. Why don't you tell our listeners, hopefully our many new listeners from SCOTUSblog, what this case is about.
Will: So, this case is about whether or not the New Jersey Transit Corporation, which runs buses and trains throughout the tri-state area of New Jersey, New York, and Philadelphia, is New Jersey, or is in doctrinal terms an arm of the state of New Jersey. The consequences of which are that it gets the state of New Jersey's sovereign immunity from lawsuit. This is like both tragic but funny, is that in the span of a couple of years, the state courts of Pennsylvania and New York managed to have a 1:1 circuit split or state circuit split on the specific question of whether the New Jersey Transit Corporation is an arm of the state of New Jersey.
The two kinds of splits you have where there's a general question about how to interpret this statute and a bunch of courts have weighed in and at some point, it's clear the disagreement is so stark you got to weigh in. And here it's a concrete question about a specific litigant, that because they operate transit in two other states, those two other states can disagree about the status of New Jersey Transit.
Dan: Why did this not come up earlier? Because there hadn't been a split on it?
Will: No. So, I think this is a case that only comes up after Franchise Tax Board v. Hyatt. So, until Franchise Tax Board v. Hyatt a couple of years ago, the rule was that one state doesn't have sovereign immunity in the courts of another state. That was the Nevada v. Hall rule.
Dan: I see.
Will: After Franchise Tax Board v. Hyatt says, “There is interstate sovereignty immunity--" I don't know if people were in fact bringing these suits, but after it says there is sovereign immunity, then the question is, well, who gets that sovereign immunity? Is the New Jersey Transit Corporation entitled to Franchise Tax Board immunity? I should also say New Jersey does make the New Jersey Transit Authority available for suits in New Jersey courts for various torts, although there's some disagreement about the scope of those and how they work.
So, it might be that a lot of the time you might be willing to bring suit in New Jersey if you can, although it's not clear that you can bring suit in New Jersey for torts committed outside the state of New Jersey. But in that sense, it's a follow-on.
I should confess Steve Sachs and I wrote an amicus brief, I think our last joint amicus brief, in Franchise Tax Board v. Hyatt laying out the original scope of interstate sovereignty immunity and why the Constitution does not speak to whether one state could have sovereign immunity in other courts, and so the court should not directly overrule Nevada v. Hall. We were completely ignored, and the court overruled Nevada v. Hall anyway. So, we're back. And this time, the court did something very close to what we said.
Dan: Close. I think maybe not exactly. But I looked at your amicus brief, which I found quite interesting, and there's a few interesting wrinkles. But as I understand your position, which is just that if there is an entity that has a separate legal form, it's a separate legal person, that's it. No sovereign immunity. So, you just look, is this the state, or did they create a separate legal entity? Is that a fair summary?
Will: Yes. So, our view is you ask whether you created a separate legal entity. Now, exactly how to tell whether or not there's been a separate legal entity might be a little more complicated, but that's the ultimate question. Sovereign immunity is for sovereigns, and it was a doctrine of personal jurisdiction. So, if you are a different person, a different legal person who's not the sovereign, you don't get sovereign immunity. That's our theory.
Dan: Okay. And the court, I think, largely likes that approach. You're not cited at all. But it seems like maybe the court is open to there being some other considerations that go into it. I mean, the court here notes that there had been-- Lower courts had been applying a balancing test based on how those lower courts had read the Supreme Court's decisions in the 1970s, 1980s. I think the court is getting rid of that approach.
Will: I think.
Dan: But it is going to say in this unanimous opinion by Justice Sotomayor, joined by everybody in no separate writings, I think it's going to do something slightly different.
Will: I'm not sure. So, yeah, just to back up for a second, what we say was the historical rule, and I think the court agrees with us about this, and I think it's true, is that classically the question was just, are you a separate corporation that could sue and be sued? And really being a corporation and having it say that you could sue and be sued pretty much was the beginning and end of the inquiry.
And that was what the Bank of the United States and all the state banks were. It's also what cities were. Cities, we used to call them municipal corporations. And so, in the 1890s, the Supreme Court reaffirmed that cities don't have sovereign immunity, and this is why. And so, then, sometime during the 20th century, things started to get more confused.
Dan: Yeah. Can I just detour for one second about the sue and be sued thing? We got an email from Notre Dame 2L Cody Wilson, who was asking about that, about why doesn't state law saying the New Jersey Transit Corporation could sue and be sued? Why doesn't that answer the question?
I looked at that briefly and it does seem like the Supreme Court's cases in the past say that that is not a clear--at least not always a clear waiver of sovereign immunity that you can't always interpret that as the sovereign saying, “Yes, we're not immune from suit. Go ahead and sue us wherever you want.”
Will: Right. This is a great example where originalism maybe helps us see through anachronism a little bit. When I read just sue and be sued, I was like, “Oh, that's just the state waiving sovereign immunity and they should be held to its terms.” But at the founding or classically, it wasn't really that it was a waiver. It was just that you had created a separate person.
Dan: That never had immunity to begin with.
Will: Right. It's just a separate person. So, the state has autonomy in a sense of whether to create persons. But once it creates persons, they just are not the state. Then during the 20th century, when courts got more into thinking about waiver, it started collapsing that into the waiver doctrine.
And then, as the court became more pro-sovereign immunity again and it started to turn the waiver doctrine more strictly, so waivers are strictly construed and waivers are presumptively only in your own courts, not federal courts, then the sue and be sued clauses morphed from the creation of independent legal persons to limited waivers of state sovereign immunity that were presumptively not carried over everywhere, and thus forced a new inquiry [chuckles] into, well, who has sovereign immunity, because we'd lost track of the thing that was the original source of it.
This culminates in a case called Mt. Healthy, which is peak Burger Court, where it's a suit against one of the school districts. I think famously a First Amendment mixed motives case. But it has a sovereign immunity section where they're like, “Well, can you sue a school district?” And they're like, “Well, that's interesting.” The question is, is it more like the state or more like a city? Because those are the two fixed points. And then, it just cites some facts about the Mt. Healthy school district, like nine facts, and says, “All right, seems more like a city to us.”
Dan: [laughs]
Will: It doesn't even say it's a new test. It doesn't even say the nine facts are now a multi-factor balancing test. But the Burger Court was the era of constitutional law multifactor balancing tests. So, it just naturally became a multifactor balancing test, all these factors. The sue and be suit analysis would have led to the same place, and that was one of the factors. And so, then now, we have a circuit split and lots of disagreement about the Mt. Healthy factors and exactly what are the Mt. Healthy factors and how do they work.
Dan: Okay, that's the context.
Will: So, now, the court gets this case, and it says, “Actually, the main question is whether you're a separate legal person,” [chuckles] right?
Dan: Yeah. So, this is, I think, maybe page 10 Part B is maybe a critical part of this. It says, "Although the court's arm-of-the-state cases have accounted for various considerations over time, those precedents have consistently and predominantly examined whether the state structured the entity as a legally separate entity liable for its own judgments." So, this is now, I think, clarified that this is the predominant question, right? Not the exclusive test.
Will: I think that's right. We'll see what predominant means. And then, the clearest evidence that a state has created a legally separate entity, is that it has created a corporation, with the traditional corporate powers to sue and be sued, hold property, make contracts, and incur debt. So, that's taken.
What I thought was the main evidence as a legally separate corporation of the power to sue and be sued, and now we have the power to sue and be sued, hold property, make contracts, and incur debt. Did all sorts of go together generally? But those are the main facts. Now, then they say, “Look, the corporate form is not the only structure that creates a legally separate entity.”
Dan: The ultimate question remains whether the state structured the entity as part of itself or as legally independent.
Will: Yes. The main factor that the court emphasizes a little more heavily than our brief did, our brief talks about this a lot, is whether the entity is liable for its own judgment or whether the state is formally liable. They do stress, “This is not just a question of who will ultimately pay.” So, individual officers who are sued for constitutional lawsuits, they are liable for their own judgments. Now, we know that in practice, the state-- [crosstalk]
Dan: When they are sued in their individual capacity.
Will: Yes. We know the state will indemnify them a huge amount of the time. But that still means, formally, they are not sovereigns. And so, they don't get sovereign immunity. They only get qualified immunity. And so, the court is saying, the question is, “Are you liable for your own judgments?” And indeed, a big part of why a state might create an independent legal person, is that it can go off and get into all kinds of trouble that isn't necessarily, automatically on the state's balance sheet.
Dan: Yeah. But so, what if you had an entity exactly like this, but then you had a provision that said, “And all liabilities will come out of the state's fund.”
Will: Yeah.
Dan: I should note that the court also says, "The court's cases also suggest that courts may consider the degree of control the state exerts over the entity, but courts should do so with caution because that is not the key question."
Will: Right. So, that was also important and good, because part of the problem is states don't have to have, and in fact, none do have a unitary executive system. So, we have this intuition in the federal system that a good proxy for whether you are part of the government is how much the government can control you. But in most states, the attorney general can't control the governor and the governor can't control the attorney general, but that doesn't mean that neither of them are-- It doesn't tell us that much about the office of the Attorney General in its official capacity is or isn't an arm of the state.
So, the judgments it makes sense to focus on that. I do think so. One thing we talked about that the court doesn't get into, is there are a lot of cases where it might not just be like, “Who do you collect the judgment from?” But for instance, if the New Jersey Transit Corporation takes a position in litigation and loses, does issue preclusion run against the state of New Jersey or not? Or, there are all these cases about offsets and counterclaims and all sorts of different ways that an entity litigating can get into trouble, have something held against it, and the question is, is that held against the state, or does the state reserve the right to say, “Oh, no, no, no, that's just the New Jersey Transit Corporation doing its thing.”
The other thing that's interesting context, is that the state of New Jersey created the New Jersey Transit Corporation as an independent entity for reasons, one of which I think is that it probably would have violated the New Jersey Constitution to make it part of the Department of Transportation, because New Jersey has balanced budget restrictions that the New Jersey Transit Corporation doesn't comply with or would create balance sheet problems with, which again is part of the idea of you might intentionally want to get a bunch of bad bonds or debts off the state balance sheet, and for that reason create a separate person. And that choice has consequences.
Dan: So, basically, you have to take the bitter with the sweet.
Will: Yes. Now, again, it's tricky because there are times when the state doesn't have to take the bitter with the sweet. The state is allowed to waive sovereign immunity for some things and not for others, and to waive it in sweet ways and not bitter ways or something when it's all just a question of waiver. But when it's a question of actually structuring the government, you have to actually make some choices.
Dan: Yeah. I mean, it is just to back up all the way. It is interesting that we have this doctrine of sovereign immunity, and yet it's very, very firmly settled that cities and counties don't have any sovereign immunity even though-- The state could abolish cities and counties tomorrow and just put them directly under the control of some person who would report to the governor.
Will: Yes. Yes.
Dan: It's kind of weird. For other purposes, we say a city is the state for double jeopardy purposes. For example, if you get tried and convicted or tried and acquitted in city court by a city, you can't be subsequently prosecuted at the state level.
Will: Yes. Well, and for Fourteenth Amendment purposes. If a city creates racially segregated public schools and you sue them under the Fourteenth Amendment, they violate the Equal Protection Clause, they can't say, “Oh, that just applies to the state, not us. They're a state actor.”
Dan: Yeah.
Will: So, yes, this is always a little tricky, is that the question of who is the state per se is not quite the same. It's quite different even from who is-- [crosstalk]
Dan: And is that basically the same question, the reason that cities and counties don't have sovereign immunity is even though they ultimately could be totally eradicated by the state, they are separate legal entities?
Will: Yes. They're separate legal entities. Again, one way to think about it is they're more like officials who you sue in their individual capacity. They're just their own person who have some state power and in consequence of that can violate the Constitution, but are not the same person as the state. That's always been important to sovereign immunity, even back in England when the king could do no wrong. Part of that was that the king could do no wrong. But all those other people out there doing wrong stuff, they weren't the king. And that's been an important piece of the doctrine.
I think that there is also just the reality that, again, if the state of Illinois, instead of creating cities and municipalities, just had everything run by the government of Illinois, who would buy their bonds? Already Chicago has trouble getting people to buy its bonds.
Dan: So, who would buy municipal bonds? There are some municipal bonds that are easier sells than if they were only state level bonds? Is that the idea?
Will: Hans v. Louisiana and the early 20th century state sovereign immunity cases are about states repudiating their bonds. They issue a bunch of bonds that they now don't want to pay. Now, again, you might buy the bonds anyway, because you figure they probably won't repudiate them. People buy federal bonds even though the federal government could repudiate them, but the state might have an interest in creating an entity with its own--[crosstalk]
Dan: Couldn't the state just waive sovereign immunity with respect to those bonds? Doesn't that--
Will: Maybe. Yeah, it depends a little bit on whether you think waivers are revocable. Can you have an irrevocable waiver or not, which I think could one state bind another to an irrevocable waiver? Maybe. I'm not sure. But more generally, people might just be willing to do business with an entity that doesn't have sovereign immunity in a way they're not as willing to do business with one that does.
Dan: Interesting.
Will: Even apart from the bonds, I guess. What about the torts and so on.
Dan: Yeah.
Will: One related point which nobody wanted to raise. The state of New York and the state of Pennsylvania do not have to let New Jersey Transit buses into the state. I think they would clearly be entitled to say, [chuckles] “Nobody can operate a bus in this state unless we know how to sue you when you hit our citizens.”
Now, again, maybe raising that specter would just cause the court to invent some new Dormant Commerce Clause doctrine that allows the great state of New Jersey to send buses wherever it wants to. But there is a way in which it might be in the state of New Jersey's interest to have the buses operated by somebody who's a real person or a real fake person.
Dan: Yeah. I was surprised that the transit corporation was taking the position that like, “If we run you over, you can't sue us.” [Will laughs] That does seem ultimately unwise.
Will: I already made the joke before about this case unites originalism and the literal little guy who got hit by a bus.
Dan: Okay. One thing that didn't end up mattering, but I really enjoyed from your brief was you figured out this disastrous jurisdictional issue, [Will laughs] which is if this case comes out the other way, then the court can't even decide the case at all?
Will: The real Eleventh Amendment problem.
Dan: Can you explain this? That basically like, if the transit corporation is New Jersey, I think not only would it have sovereign immunity in lower courts, but actually under your view of the law, which is as I understand it is not the court's view in precedent, the Supreme Court would have no jurisdiction over that. No appellate jurisdiction over the entire case. And then, you say, “Well, and then Supreme Court always has to consider its own jurisdiction before it gets into the jurisdiction of the lower courts.” Therefore, the court [chuckles] would just have to dismiss the case and not decide the issue, I think.
Will: Yes.
Dan: Or, though, I guess in the course of dismissing it, you would decide the issue-
Will: Well--
Dan: -maybe? Wouldn't you have to say, “We lack jurisdiction because this is the state”?
Will: Yes. So, under the Eleventh Amendment of the Constitution, "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state." That only applies to federal jurisdiction, not state jurisdiction. And we're only talking about the Eleventh Amendment, not Hans v. Louisiana and the other cases that talk about a broader immunity.
So, under just pure Eleventh Amendment textualism, if the New Jersey Transit Corporation is the state, then the Supreme Court lawsuit itself violates the Eleventh Amendment, because it's the judicial power of the United States, the Supreme Court extending to a suit in law or equity that was commenced or prosecuted originally in the lower court, brought against one of the states by a citizen of another state.
Therefore, the Supreme Court's own appellate jurisdiction explodes, and New Jersey has argued itself out of court. Now, in New Jersey, they may be fine with that, because they won below. But in New York, they lost below, and so the Supreme Court [Dan chuckles] would evaporate and the split would persist.
Now, one problem with this argument is that it was also true of Franchise Tax Board v. Hyatt. We also pointed out in our amicus brief in Franchise Tax Board v. Hyatt, and nobody cared. Just crickets. Funny thing, then in PennEast Pipeline Co. v. New Jersey, Justice Gorsuch observed this problem existed, quoting an article we wrote about an amicus brief, and said, “We should be careful about this.” So, at least some Justices are on record caring about it. And so, it at least creates a problem. If the court wanted to rule for New Jersey, some of them would have to say what they're going to do about this.
Dan: Or, at least one.
Will: At least one. Now, the other problem with our argument, is that the Supreme Court has unanimously rejected it. So, in Franchise Tax Board v. Hyatt, they ignored it. In two other cases in the 1990s, McKesson Corporation and South Central Bell Telephone, they rejected it. But I promise, if you are Justice Gorsuch or Justice Barrett or Justice Thomas, and you read those opinions, you can't possibly believe in them. Like, their arguments are not good.
Dan: Yeah.
Will: South Central Bell is interesting, because there are a lot of heavy hitters, like SCOTUS heavy hitters from the day back in there trying to get the question reconsidered. So, we said in our amicus brief, “Look, yes, there are these precedents, but they're wrong. They meet the Gorsuch standard and the Thomas standard, and Justice Barrett had applied a similar standard in her academic writing. And so, you got to reckon with this problem.” Maybe they could all just say, “Stare decisis or something,” but they'd have to say it or not say it. In Franchise Tax Board v. Hyatt, they just ignored it.
Dan: I love this. This is such a Baude and Sachs issue.
Will: “Rule for us, or we threaten you with jurisdictional confusion.”
Dan: Yeah. You're like, “We've found the secret jurisdictional weapon.” I loved it. Okay. Is it notable that this is a unanimous opinion by liberal Justice Sotomayor? Nobody writes separately. Everyone is just on sovereign immunity, which is a constitutional question that sometimes is quite controversial on the court.
Will: Yeah. Look, it's great. It's great. Justice Kavanaugh, when he was Judge Kavanaugh, was very, very hawkish on sovereign immunity. And so, I really did not predict he would join an opinion going this way. Who knows, maybe he was-- Sometimes there are Justices who are the lone dissenter, but they don't care enough to actually want to be a dissenter. But I'm grateful to have his join.
Dan: Now, I didn't pull it up, but I did note in footnote 3 on Page 4, the court is saying that the courts of appeals have looked at this using an array of multifactor, multi-step tests. And then, it cites an opinion from the D.C. Circuit and it notes in a parenthetical that it was an opinion by Justice Kavanaugh when he was a D.C. Circuit judge. Did you pull that one and see what that says?
Will: I know this case very well. I will say, in that case, there is a concurring opinion by Judge Stephen Williams which lays out very much the core of the argument we discuss here. It's heavily cited by both us and all the respondents' briefs, that this used to be easy, and I guess now we have this balancing test, but it's unfortunate and that opinion is, of course, just applying existing precedent.
Dan: That case, then-Judge Kavanaugh comes out in favor of sovereign immunity.
Will: Yes. Under existing precedent. Yeah.
Dan: So, precedent is now more anti-sovereign immunity after this decision?
Will: I think so. In that same footnote, there's a citation to a Fifth Circuit case, Springboards to Education, Inc. v. McAllen Independent School District that also has similarly a Judge Oldham separate opinion. Also laying out a strong originalist case for the Stephen Williams- Baude–Sachs view. Not that anybody cares what we think exactly, but the good news was that it wasn't just Steve Sachs and Will Baude saying it, but Steve Williams and Andy Oldham saying it. Maybe that makes it a little more serious.
Dan: Okay. Well, I enjoyed this one.
Will: So, I think the one big question going forward will be how much the lower court doctrine is now shaken up. How much is this the same conclusions can now be reached in a more clean, analytic way and how much maybe Puerto Rico Ports Authority might change? I think I confess I've only turned Claude onto this project so far. I have not yet turned my real sober and sensible research assistants onto it. But public hospitals and public universities, I think, potentially-- Now, many are not separate corporations.
Dan: I would assume most of them aren't really. Most universities have separate boards.
Will: Well, you have a separate board, but that doesn't necessarily mean you're a separate corporation with your own property, and judgments, and so on. But there are some cases where your property is state property, and there are some where the university is part of the state, but then there's a foundation that has a 501(c)(3) that might already not be part of the state.
But I will just say there are a lot of cases holding universities and hospitals to be arms of the state that do not apply this analysis. I think a lot of them come out the same way from my initial cut. But it's on my list of things to do is to do a deeper dive of whether they really do and how many might have a different result.
Dan: Okay. Well, that's a big question. I have a small, extremely pedantic question, so the kind of thing we're known for. Would you flip to page 16 of the opinion?
Will: 16. Okay.
Dan: The second sentence of the first full paragraph, is that sentence missing a word or incorrect in some way? Can I just read the sentence and see if I'm misunderstanding it? "The term instrumentality, however, lacks the historical weight the corporate form does and says little about whether an entity is an arm of the state." The word does seem misplaced there.
Will: Yeah, it should be like have, has.
Dan: It shouldn't be has.
Will: Lacks the historical weight the corporate form does.
Dan: That's wrong, right? That can't be. That the corporate form doesn't lack? [Will laughs]
Will: Yes.
Dan: I think that's-- [crosstalk]
Will: Yes. It's got to be a has, not a does.
Dan: Okay.
Will: Good catch.
Dan: All right. Well, we'll see whether they fix that. I do like how in the wake of Professor Richard Lazarus' article about the way in which the court has secretly, without noting it, changed the text of a bunch of their opinions over the years. Now, they note it. They note on the PDF when they change it. So, I think that one deserves a little bit of a revision, because that one stopped me dead in my tracks. I was like, “Let me try to read this six or seven times, and make sure I'm not misreading it.”
Will: I read this opinion six or seven times and didn't notice it.
Dan: Wow. Okay. See, it's just because you have such a rosy view of the court all the time, you think the court can do no wrong.
Will: I just lack your strict scrutiny and attention to detail.
Dan: [laughs] All right. More to say about this one. This one is obviously one you're a bit more invested in than I am, but I think it was interesting. I enjoyed it. Short. Mercifully short, mercifully devoid of dueling separate opinions.
Will: 10 out of 10, no notes. Or, 8 out of 10. Yeah.
Dan: Yeah. Not 10. It's not 100% your position.
Will: Well, 9 out of 10.
Dan: Okay.
Will: All right.
Dan: That's pretty good. Have you ever rated a Justice Sotomayor opinion that highly?
Will: I'm sure I have.
Dan: [laughs] All right. Well, listeners, track that one down for us.
Okay, I think that's it. Thanks very much for listening. Please rate and review anywhere you get your podcast, especially if you're a new listener who is just joining us because of SCOTUSblog. Please share the show with anybody who might enjoy it.
You can visit our website, dividedargument.com, where we put up transcripts fairly soon after the episodes. blog.dividedargument.com, where you can find commentary from us in the extended Divided Argument universe. store.dividedargument.com for merchandise. You can send us an email at pod@dividedargument.com, or leave us a voicemail: 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the University of Chicago Women's Board and Deborah Caffaro for your support.
Dan: And if there's a long delay between this and our next episode, it will be because one or both of us have been seriously injured by a New Jersey Transit bus.
Will: But now you can sue.
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