We reflect on the death of Justice Souter and sort out some loose ends from the last episode. We then dig into the Court's only opinion from Thursday, Barnes v. Felix, which we previewed with friend of the show Orin Kerr back in February at Stanford. Along the way we make a short detour into generative AI and its potential for SCOTUS research. Most importantly, we react to the oral argument in Trump v. Casa, the shadow docket case about (or, not about?) President Trump's birthright citizenship executive order.
We reflect on the death of Justice Souter and sort out some loose ends from the last episode. We then dig into the Court's only opinion from Thursday, Barnes v. Felix, which we previewed with friend of the show Orin Kerr back in February at Stanford. Along the way we make a short detour into generative AI and its potential for SCOTUS research. Most importantly, we react to the oral argument in Trump v. Casa, the shadow docket case that's about (or, isn't about?) President Trump's birthright citizenship executive order.
[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, you and I are both fresh off some media appearances this morning. You were live blogging the opinion hand-down and oral argument today on SCOTUSblog. How did that go?
Will: It's very chaotic because you're in a chatroom with a bunch of randos, so you're both trying to-- Amanda Tyler from UC Berkeley, my co-author, was also there. And so, there were times we were trying to discuss something, but then lots of people were just chiming in with various questions. But it was fun, actually.
Dan: Sometimes back in the day, the pre-Dispatch SCOTUSblog, I would log in. I did a couple times, the actual live blogging myself. But sometimes, I was just an observer and I would kind of log in and throw out kind of trollish questions.
Will: Really?
Dan: Yeah, like I asked about Tom Goldstein's Ferrari, but nobody ever-- Those questions never got selected for answers because there's that period before anything happens where people are just throwing out random questions and the hosts are answering some of them to keep people engaged before the action starts.
Will: So, I was a little late for that because I had to do school drop-off. So, I sort of breezed in just in time for the actual action.
Dan: Yeah, I was thinking about logging in and sending some trollish questions your way, but I couldn't think of anything quite funny enough. But if you do it again, be prepared.
Will: People did keep complaining about how all the commentators were libs.
Dan: Oh, really? I was going to say, is SCOTUS blog based now, now that it's owned by the Dispatch?
Will: I will say part of what happened, and we'll talk this in a second, is just as we were watching the argument, we're like, “Oh, this is not going well for the SG.” And then people were like, “You're just saying that because you are all libs who don't understand,” blah, blah, blah.
Dan: Okay, that's one interpretation. I myself did a hit on CNN International talking about the arguments. You don't really like doing TV, right?
Will: That's right.
Dan: Do you have a categorical rule against it? I think you got asked to do a lot of TV last year for the Section 3 stuff and declined.
Will: Yeah, I don't think I've ever done TV qua TV. I appeared-- There was like a straight to Hulu documentary about Justice Scalia that I appear in. They came to Chicago and filmed a long thing. I think I made a few minutes in there.
Dan: You've never done live television?
Will: Not that I can think of.
Dan: Yeah. I don't know. I think it's an experience worth having once in your life. Never say never, but, yeah, it's like a lot of stress and waiting around for something that usually amounts to being on air for 45 seconds.
Will: Yeah, I find that tough.
Dan: Yeah. It's better now that they let you do it on Zoom because 5 or 10 years ago, pre-COVID, you would have to go to the local TV studio and get all this makeup on and sit under these lights, and it was very time-consuming. They would send a car to pick you up though, it was nice. You felt very important.
Will: Do you do the makeup in your office now or--?
Dan: I just, unfortunately, just go--
Will: Go fresh.
Dan: Yeah. Raw dog, as they say. And the viewers have to tolerate that. But I do have a high-quality camera, which I got from my Zoom teaching days and, as the listeners know, I have a fairly high-quality microphone.
Will: Yeah.
Dan: So, we'll see. Also, we have a slight change to the show which we hope will make it better, which is we're working with an editor, Peter Duff, who is doing great work for us so far. He has already suggested ways in which we could make ourselves sound less terrible. So, we'll see how that works. We put pop filters on our mics. I can see you've got your pop filter on.
Will: I do. We'll see if it helps.
Dan: Yeah. Because apparently, you have a problem with plosives. Are you listening for those now?
Will: I try not to think about it.
Dan: Okay. It's going to throw you off your podcasting game if I make you think about your plosives?
Will: Yep.
Dan: Okay. So please, listeners, if you notice us sounding good or at least slightly less bad, let us know. Okay. Another piece of follow-up heard from a couple listeners, including devoted friend of the show, Kannon Shanmugam, that we might have glossed over the most interesting and important part of Cunningham v. Cornell University.
Will: Oh, the ERISA case?
Dan: Yes. Which is actually not going to be of interest to most people, but maybe to the kind of people who listen to the show, which is the discussion the opinion of how the plaintiff can be ordered to file a reply to an answer to a complaint under the Federal Rules of Civil Procedure, Rule 7. Have you ever thought about this procedure? Because I heard from multiple people that they were not aware that this was a thing. So apparently, the case is about how-- do you have to plead that the case is within an exception, and the court says no, but the defendant can raise that the case is in the exception in their answer. And then the court can make the plaintiff file a reply explaining why the case is not barred, rather than having to go through discovery and wait till summary judgment.
Will: Right. I don't remember if I've ever thought of this before. I will say I don't teach civil procedure. I'm not always as in the weeds of the rules as some of our friends, like friend of the show, Steve Sachs.
Dan: But I bet Steve knows about this, right?
Will: I'm positive Steve knows about this. But I was going to say qualified immunity is an affirmative defense. And so, it brings up sometimes qualified immunity procedure, which I do know a little bit about, brings up some of these same issues. Because you might-- Technically, your complaint doesn't have to plead facts that demonstrate a lack of qualified immunity, but then you have the sort of defense. And so, you can get into this weird--
Dan: Okay, so you might have seen this before.
Will: I think I've encountered some cases where that comes up in the QI context. Although because QI so overlaps with the merits, it may not be as important.
Dan: Yeah, and QI has all its own procedural wrinkles, like, you get multiple rounds of appeals.
Will: Yes, you do.
Dan: I don't love that. Just makes these cases so slow.
Will: One of my bank shot QI amicus briefs is going to be, even if the court doesn't want to get rid of the QI standard, they should think about getting rid of the extra QI appeals, which are just something the court kind of made up.
Dan: So, both rounds? Because you get one at motion to dismiss and you get one at summary judgment, right?
Will: Yes. So, this all comes from the idea that qualified immunity is a so-called collateral order. And so, an order denying qualified immunity is a final order, even though--
Dan: It's not final?
Will: Yeah. Well, if you think of qualified immunity as the entitlement to have the case go no further, then the denial of qualified immunity is a final order as to the question of whether the case will go further. That's the argument.
Dan: Although any interlocutory order of a court is a final order with respect to that thing.
Will: Yes.
Dan: Right?
Will: Yes. And also, the collateral order doctrine itself is not something that's contained in the statutes. It's something the court glossed on.
Dan: Made up.
Will: So--
Dan: Are you against that whole thing--? I think I've asked you about this in the past, but are you anti-collateral order doctrine entirely?
Will: I thought about going against it entirely, and then there are a couple articles on this, and I became convinced it was more complicated, and I didn't have a clean take.
Dan: Because the majority of the court, I think, thinks that there's clearly some immunity situations where you should be able to do that, like presidential immunity?
Will: Sure. And I think immunities are not the strongest case for that. I mean, there are true collateral orders, like holding a witness in contempt or sort of other--
Dan: Where there's like a third party?
Will: Right.
Dan: Yeah.
Will: That, I think, is like the easiest case for collateral order. You could say, well, the case is over with respect to this issue. I'm more skeptical about a lot of things, but I'm not sure I have anything novel to add about that. And there's some old history on double jeopardy about this, that it's not crazy. So, I don't know.
Dan: All right. So, as I like to do, took us on a little bit of a detour. Other stuff. Retired Justice David Souter died recently, I think, since we last recorded. So, condolences to his loved ones and his former clerks. He's a very interesting figure. I think we're unlikely to see a Justice like him anytime soon where he, certainly by the kind of midpoint in his career, voted quite consistently with the kind of other ideological camp appointed by Republicans, and then joined a fairly solid liberal bloc on the court for most of his career.
Will: Yeah. Also, unlike many people, he retired while he still had a lot of good years in him.
Dan: He retired at 69, I think?
Will: Mm-hmm. I think he felt like he'd done his time.
Dan: And it was said that he often complained, he didn't like living in DC. He wanted to go back to New Hampshire.
Will: Yeah. You didn't clerk when he was there, right?
Dan: No, he had just left the building.
Will: Yeah. He retired the term I clerked, I guess.
Dan: Yeah.
Will: So, I don't think this is a secret. I mean, I think I was struck by, and I think a lot of people were struck by, there were lots of ways in which he was the most law clerk-like Justice. There are questions sometimes, like things that all the law clerks know as a big issue in the case and the Justices don't really care about, but Justice Souter would be the person most likely to care about those things.
Dan: Do you mean just like nitty-gritty procedural things?
Will: Yeah, I mean, it could be a nitty-gritty procedural thing. It could be like a doctrinal thing. It could be a way in which this case will or won't implicate some unrelated doctrine. I mean, yeah, they felt like details in some sense. But that kind of thing, I think he was the person most likely to ask about them at argument. The person, if he had the pen for a majority opinion, the person most likely to drop a series of footnotes, like flagging this issue and the like.
Dan: Did that make you think he's like the most kind of lawyer's lawyer of the Justices that were there?
Will: Well, and this may relate to the question of whether that job was a good fit for him. My impression is that being a Supreme Court Justice is a very different kind of judging than other kinds of judging. Some would say because the Supreme Court is not a court and they're just doing politics. Others would say it's because they're doing law that's less focused on the nitty-gritty of doctrinal details and more focused on the original meaning or the ultimate purpose of the text or things like that. And I think whatever that bird's eye view was, that's what makes the court distinct. Hey, I got the sense--
Dan: He just wasn't-- he was too low on the ground?
Will: He did not want to fly that high.
Dan: Interesting.
Will: So, yeah, one version would be he was a lawyer's lawyer in a court of politicians. A different version would be he was a trees guy in a forest court. But I do think it was just a notable difference. And it's not surprising to me that in the end, he did not like that job very much.
Dan: Yeah. Another thing to say, and this is don't speak ill of the dead, but this is something that very much annoys me about Justice Souter is he has set it up so that his papers are not going to be available to historians and the like for 50 years. It's a long time.
Will: 50 years from his death?
Dan: I believe so. I remember I had to figure out exactly what the 50 years was from a while back, but I think it's 50 years from his death. I've forgotten the right answer, but it's a really long time.
Will: Because some Justices index off of not their own deaths, but the deaths or retirements of the Justices involved so that my papers that implicate Justice Breyer, who I served with, don't come out until whatever. But he was a private man.
Dan: Yeah. No, it is 50 years after his death, not his retirement. So, 2075, that will be season 55 of the show, assuming we don't take any yearlong hiatus along the way. I don't know if-- Are you going to need a sabbatical from the show at some point?
Will: Well, when you're unscheduled, what does a [Dan chuckles] sabbatical from the show even mean?
Dan: That's true. Well, do you think we have to give people warnings when we're going to be really unscheduled? Because we had that gap where people started writing in--
Will: That record-long break, where people started saying, “I used to like your podcast. Too bad it didn't work out.”
Dan: Yeah. I don't know. Law professors are supposed to get sabbaticals, do podcast hosts get them.
Will: We’ll apply to our manager.
Dan: [chuckles] So, yeah, that's a little disappointing. I understand that Justices have different views than I do about privacy and so forth, but I do think, and I've said this in print, that the public does have an important interest here. I think that the interests of secrecy really diminish even just a few years after decisions are issued. And I think that wherever you draw the line, I think, 50 years from a Justice's death is too far.
Will: Yeah. I don't have a strong view about that.
Dan: If that's the worst thing I can say about him, he's doing pretty good.
Will: Yeah. Because we don't have document retention rules for the court, I think there's a sort of funny dynamic process. I'm grateful when the Justices decide to keep their papers rather than burn them. I think so. They passed a statute of presidential records after Nixon, but I think there's no equivalent statute for the Justices. And so, if this is what makes the Justices comfortable with keeping all their papers, I'm inclined not to complain.
Dan: Yeah. But I mean, maybe the rule should be they're not allowed to shred them. And I do think that there have been reasons to believe some of the Justices have expurgated things from their papers.
Will: Yeah.
Dan: Before they are turned over to the archives.
Will: Right. In the scheme of things, operating under transparency statutes makes it a little harder to operate. In the scheme of things, I care more about the court operating well than the court operating transparently. If you can have both, that's great but to the extent there's a trade-off.
Dan: I think that having a norm of say 20 years, I think would have basically zero impact on-- I think having a norm of live blogging their internal deliberations would have a huge impact. I think saying 20 years really would not.
Will: 20 years from--?
Dan: I don't know. When this stuff happens?
Will: Okay. So, Justice Thomas papers from his early part of the court would be public?
Dan: Well, what about this? He doesn't have to make his own papers public. But what about if-- Let's say-- I mean, Justice Stevens has done this, he released some of his papers and some on a staggered timeline, I don't remember exactly how the timeline works, but some of those papers do cover periods of time where some of the active Justices were on the court. And I don't know. I don't think that's been hugely harmful.
Will: Ah, sure.
Dan: You want a rule that nothing comes out until everybody's off the court. I mean, that's not a wholly indefensible line.
Will: Yeah, I mean, I like that norm, but I don't really want a rule. I want the rule to be, I'd like the Justices to save their papers and make them available for posterity, and I'd like them to have the most access that they're all comfortable with. I'd like that to be more. And so, I'm not against the Dan Epps’ norm but--
Dan: What about this idea that maybe we should think of them as government property and not as personal property to be burned, destroyed? They're printed on paper paid for by the government.
Will: Yeah. Well, in the executive branch, I think there is probably too much transparency over the executive branch right now, on the whole.
Dan: Right now?
Will: Yeah. In ways that make it harder for the executive branch to function.
Dan: I'm okay with that for the moment but check in with me.
Will: Sometimes, yeah. Maybe it's-- I don't want to speak-- It was the least important thing of all but on the Supreme Court Commission, we were governed by the Federal Advisory Committees Act, which requires a lot of transparency in the ways how things operate. Unless you change your operations in various ways to take advantage of various loopholes under the Federal Advisory Committees Act, which we did, like all Federal Advisory Committees, and just made the whole thing less operational and it was bad. That's like one end of the spectrum, and Justice Souter was the other end of the spectrum, and I'm the reasonable person who wants to be somewhere in between.
Dan: Okay. Well, I just think that having a norm that chambers-to-chambers memoranda and draft opinions that circulate to other chambers, there should be government property, and there should be reasonable rules about them being disclosed at certain points. It can be decades. It doesn't have to be five years, but 50 years after the Justice's death and 66 years after the Justice's departure from the court seems like too much.
Will: Okay.
Dan: What else? We got a review or two from the show.
Will: Oh, yes. We've not been reminding people to rate and review the show lately, and perhaps we should, because I could use some people to bury the latest review we got last week, which is titled-- which is from some random string of numbers and letters, but it's titled “Growing Smugger by the Day.” “And I say this as a 60-year-old libertarian lawyer, usually more inclined to agree with Baude, but now semi-repulsed by him, I'm finding Epps to be the more reasonable one lately. Maude's,” I think that's Baude, “Baude’s blithe assumption of judicial supremacy in all conflicts between Article II and Article III lacks nuance and exposes a limited ability to think or perceive arguments outside his lane. Despite the aura of being the ‘brainy’ one.’”
Dan: I like this one because it really gets some digs in at both of us, right?
Will: Well, the dig at you is just that you're now the more reasonable one.
Dan: Just that I'm not the brainy one. I'm the comic relief, I guess. The comic relief who you don't find funny.
Will: “My blithe assumption of judicial supremacy.”
Dan: I think that's weird because actually you're not like a hardcore judicial supremacy guy. You're kind of like a departmentalist guy.
Will: I take it this means that in the past few months I have maybe sounded too anti-Trump and too pro-court.
Dan: Okay, maybe.
Will: Maybe. Maybe I was too blithe in talking about AARP. Like, we've had these recent shadow docket rulings against the Trump administration and maybe I was too blithe about them.
Dan: You were supposed to condemn them wholeheartedly.
Will: Or discuss them, but in a non-blithe manner?
Dan: [chuckles] Unblithely. I don't know.
Will: Okay. Anyway, if we have listeners who don't feel that way, I could use some reassurance.
Dan: Yes. So, we do like to encourage people to bring those in. We put those at the end of the show. But I think if people just stop listening, we need to start doing some post-credit scenes.
Will: Oh, so people have a reason to keep listening.
Dan: Yeah. Are you familiar with the Marvel Cinematic Universe?
Will: Yeah, yeah.
Dan: Okay. For many years, Marvel has put post-credits scenes in the movies as a way to just make you have to sit through seven minutes of credits.
Will: Yeah.
Dan: And it works.
Will: Yeah. Okay.
Dan: MCU movies have really gone downhill. But you're a Star Wars guy all the way, right?
Will: Yeah. But not the recent Star Wars movies.
Dan: Yeah, yeah. You're like a purist, right?
Will: I used to be a complete purist, and then I regarded the Star Wars universe as effectively dead in the 2010-2012 period when they allowed Disney to take over. And now I'm willing to accept some modern things like Andor and Rogue One which are excellent as part of canon.
Dan: Rogue One is good. Yeah.
Will: But I have my own sort of fan-constructed canon that's a mix of--
Dan: Did Han shoot first?
Will: Han shot first, yes.
Dan: Okay. Yeah, I agree.
Will: I actually have a t-shirt that says that.
Dan: Okay, good. Okay. So just to step back, the court has on the schedule some hand-down days on a bunch of successive Thursdays for the coming weeks and as it gets later in June, they will certainly add more days, but we are going to do our best to record after or in short succession from those hand-down days and try to get you some analysis on the opinions, at least if they are interesting ones. And then, I'm going to be in Chicago in a couple of weeks and maybe we will record in person, have the enhanced vibe of an in-person recording session. We'll see.
Will: Yeah. A live non-live show, we’ll see.
Dan: Yes, a live show with no one in the audience. But yeah, I'm optimistic that we'll have a good stretch. Are you traveling in June?
Will: Yeah, we got a week.
Dan: Okay. Is it like the important week?
Will: You never know.
Dan: Is it the end of June?
Will: No.
Dan: Okay. I think we're going to make it work. So, stay tuned. As always, no promises, but I think we will have some good stuff coming for you all. So, what do you want to do today?
Will: Well, today, we had a short opinion announcement which I don't think we need to spend much time on, but we did preview the argument on the show and then we had some pretty interesting arguments.
Dan: Yeah. So, Barnes v. Felix. If you don't remember, this is an episode we talked about at our Stanford live show with a good friend of the show and friend of us, Orin Kerr, and great Fourth Amendment expert. I was just at my kid's preschool parent breakfast earlier this week and one of the other parents was a public defender working on a Fourth Amendment case and he said, “Oh, Orin Kerr, I follow his Twitter and read everything because he's always flagging the cool new Fourth Amendment cases.” So, very influential among the law world of people litigating these issues. So, on that episode, we talked about this case.
Basically, it was a case about police shooting and it was a little weird in terms of how the case evolved. But the question the court took the case to resolve was whether this thing called the “moment of the threat” doctrine is a thing or not. And this was something under which some lower courts had basically said when a police officer shoots somebody, and there's an argument in a civil case that this was a violation of the Fourth Amendment, an unreasonable shooting, unreasonable seizure accomplished via weapon, you only look at basically the exact second in which the officer faced the threat, rather than looking at the bigger picture.
Will: Right.
Dan: And it became quite clear at oral argument that nobody really believed that. Even the defendant didn't really endorse that view.
Will: It's not even clear how much the Fifth Circuit believes it.
Dan: Yeah, it's a little unclear. It seemed like there's maybe even some disagreement on the Fifth Circuit about what exactly their precedent says.
Will: I take it part of the real issue is sometimes police officers end up in genuinely deadly situations for reasons that might be their own fault. The police officers pull up with all their guns out at some scene and that causes people to flee or shoot at them. Do we get to take into account? Do we get to second guess the way the police officers arrived on the scene in provoking that? Or, sometimes police officers decide to jump on top of a car as it is driving away and they discover that they do not like being on top of a car that's driving away and that's very dangerous for them. And then, the question is, can they shoot the driver when it's sort of their fault they're on top of the car?
Dan: Yeah, but this case does not-- that is related, but not exactly the same question here, which is-- this question is about the timing, the kind of when question. And there is this, as you note, this related question about, “Well, can you take into consideration that this was like an officer-created danger?” This opinion, it kind of feels to me like-- sorry, not that I don't mean the text of the opinion, which is very well written, but if you kind of just like fed into ChatGPT, “Here's the oral argument, what's going to happen in this case?” It would spit out unanimous opinion saying moment of the threat doctrine isn't a thing. Not really going further. And then, you've got a concurrence by Justice Kavanaugh talking about how car stops are really dangerous. And we've got to think about that because it's something he went off on at oral argument, if you recall. And that's what we got. We got a unanimous opinion by Justice Kagan. And then, a four-Justice concurrence about car stops are dangerous.
Will: Yeah, right. Justice Kagan says, “You’ve got to consider the whole context. Can't have a rule that you only consider some things. Consider everything. We always said these Fourth Amendment cases, especially excessive force cases or deadly force cases, are context specific. So, you consider the whole context.” She has a nice example of a time when they've done that in a way that helped the officer. You should look at, there might be exculpatory to the officer-- In this moment, it looks like what the officer's done is really bad. But if you understand what led up to that, you understand why the officer did it. And so, the same rule applies either way. And then, Justice Kavanaugh, joined by Justice Thomas, Justice Alito, and Justice Barrett, writes separately to say traffic stops are really dangerous and we need to remember that.
Dan: Fair enough.
Will: Yeah. Were you surprised by the set of people on the Kavanaugh concurrence? Like, Kavanaugh, Thomas, Alito, Barrett?
Dan: It did seem like more people than you might normally expect to join a concurrence like this where it's kind of just like-- It's sort of like, “Here's a thing I'm worried about,” kind of concurrence.
Will: Yeah. And where's Gorsuch, like his name--?
Dan: He's not there?
Will: Yeah.
Dan: I don't know why, but someone was talking-- You were the one talking about this on Twitter earlier? Someone was talking about this somewhere, saying that maybe he didn't join because then you'd have a majority for a concurrence. And that's not really the kind of thing we like to see.
Will: Yeah, I speculated about this in the SCOTUSblog live blog.
Dan: Yeah, of course. That's where you were--
Will: Do we think there's an implied cap on the number of Justices who can avoid joining concurrence? Like, Kavanaugh sends this around, and Alito, Thomas is like, “Yeah, I agree.” And the Justice Barrett’s like, “Oh, yeah, that seems reasonable. I would join.” Then, there a point where Justice Gorsuch or the Chief are like, “Well, I agree, but a five-Justice concurrence is pretty weird because then that's kind of like an opinion of the court.”
Dan: Yeah.
Will: Do we think that happened? I can't think of any five-Justice concurrences.
Dan: I'm not aware of one. I bet-- I think this is the kind of thing where we should ask ChatGPT. I'm going to do that.
Will: Okay.
Dan: I'm asking right now.
[keyboard clicking]
Will: Our anti-AI listeners are going to get mad at you, Dan.
Dan: No. It's giving me, like, pluralities. No, it's not-- I don't think it's understanding-- Oh, okay. I think I might have one. I think I might have caught a live one here.
Will: Live research on the show?
Dan: This is why we are law professors, because we can type stuff into ChatGPT. Now, let's see. No. No, this is wrong. [laughs] It just lied.
Will: All right. So fun.
Dan: Yeah, it was an interesting little detour. It's good because it shows us that you and me are not out of a job yet. Are you aware of the Google AI thing where they can just give it something and it will generate a kind of two-host bro podcast about that thing, explaining it to you?
Will: I have heard of it. I've not listened to it.
Dan: I listened to little clips of it. It's kind of scary.
Will: It's going to put us out of business.
Dan: I don't know. I think we're iconoclastic. ChatGPT5 could might be able to do it, but not 4.
Will: So, we're not going to make it 50 seasons?
Dan: [laughs] Well, no, we're just going to outsource it. We'll retain the IP, and we'll just outsource it to our AI clones and retire to Malta or wherever.
Will: Okay.
Dan: All right. So, anything else to say about it? Yeah, I thought that Kavanaugh, I wasn't really sure what to do with the concurrence. I was just like, “Yes, this is dangerous.” I mean, it's also bad to just kill people. So, I agree that if someone is driving away in a car, I mean, maybe none of the solutions are great. I mean, not obvious to me that, like, just shooting the person and killing them is the best of the available options. Even if there's some danger that the person running away might get away, still seems better to let the person run away and not kill them. But he's worried about it. Some of the others are worried about it.
Will: Yeah, no, I have nothing else to say about that.
Dan: Okay. I was hoping we would get something a little bit spicier, but alas. In terms of spiciness, we did have the oral argument in CASA v. Trump or Trump v. CASA.
Will: Trump v. CASA because of Trump's application.
Dan: Yeah. Yeah. Does CASA stand for anything? I was trying to figure this out. I looked at their website and I couldn't find-- It's in all caps, but I couldn't find anything on the front page of their website, immediately making that clear. It must at least have started out that way.
Will: According to Wikipedia, it was originally known as the Central American Solidarity Association of Maryland.
Dan: Ah, okay.
Will: In 1995, it officially became CASA of Maryland.
Dan: I see, that's like Restoration Hardware rebranded as RH.
Will: [laughs]
Dan: Great furniture.
Will: No, it's still Restoration Hardware to me, Dan.
Dan: Me too, but I'm just telling you-- [crosstalk]
Will: It's still Twitter and Restoration Hardware.
Dan: Yes. It'll be a sad day-- I think I will start refusing to use X on the day I can't type in twitter.com and have it take me there. I'm not willing to type in x.com.
Will: I had never even thought about it. I only type in twitter.com.
Dan: Yeah, that's the only way I access it.
Will: Yeah.
Dan: Because I deleted the app long ago. People are saying on Twitter, on X, that they're saying that Bluesky is maybe circling the drain and now everyone's going to have to go back to X. I don't know if that's true. I'm not paying close enough attention.
Will: Mm-hmm. I post on both, but usually I find Twitter a lot more engaging.
Dan: As in you're getting more engagement or you just like the stuff posted there more?
Will: More the former. I mean, there are lots of good people on Bluesky, which is the reason I'm there, but it can be a little bit of an echo chamber.
Dan: Yeah. I mean, we are having intense ideological polarization on our social media, it seems. But yeah, I posted something on both sites about my comments in the New York Times about the worst things Trump has done. It got tons of engagement on Bluesky, kind of disappeared into the void on X. So, go figure.
Will: Yeah. Okay, so we got oral arguments out of these applications. I think I have blogged about these applications before on the Divided Argument blog, which people should read. And so procedurally, they're a little bit curious in that this is kind of like a cert case. We've got argument, briefing, but there's no QP and there wasn't like an extra round of big, long briefs in the parties.
Dan: Yeah, they just were like, “Okay, you guys have filed all this stuff, let’s-
Will: Let's talk.
Dan: -do the argument.” And they provided no guidance as to what they wanted to talk about.
Will: Right. And it turns out there are three things at least they could have talked about. So, they could have wanted to talk about standing, and they did not talk about that at all. They could have wanted to talk about the lawfulness of the executive order, which they talked about a teeny tiny bit. And they could have wanted to talk about whether or not Sam Bray is right, that courts can't or shouldn't issue universal injunctions. Injunctions that tell the executive branch to stop violating the law for everybody in the country, not just the plaintiffs. And it turns out that's what they wanted to talk about.
Dan: Yeah. Interestingly, that seemed procedurally the thing they should have talked about, because that was the actual topic of the government's applications in this case. But I think a lot of people were speculating, “Oh, they'll change their mind. They'll want to get into the merits.” But it actually did stay pretty focused on that issue for the nearly three hours of argument.
Will: Yeah, I mean, they are a little inextricable in that one of the arguments in favor of granting a broad injunction is that you need it in order to-- One of the groups of plaintiffs here is a large group of states. And so, the argument is, “Look, you can't grant relief to 28 states or 13 states or however many states without it effectively being nationwide.” Now, whether or not states have standing and in what circumstances they have standing is something that's complicated. And the court has been retrenching a little bit. So, I thought it was plausible that that might come up as the Justices tried to sort of wrestle with this, but it didn't come up at all. Everybody seems to agree that New Jersey has an interest in figuring out who in New Jersey is a citizen.
Dan: Do you have thoughts about the kind of standing question that really didn't get a lot of attention? There's the issue about state standing, and there's issue about associational standing.
Will: Right. So, CASA, as an example, it's an association. So, CASA's standing is premised in the fact that there are members of CASA who are affected by the order. Justice Thomas has a concurring opinion recently, and Andy Hessick and Michael Morley have an article maybe forthcoming or maybe just out in the UChicago Law Review, both saying that associational standing has gone too far and/or should not be a thing, which I basically agree with. Effectively, associational standing is now a way to have a kind of janky, anonymous class action without any oversight, because you can just create an organization. You can even create the organization just for purposes of litigation, like Students for Fair Admissions. And then, your standing is based on these anonymous members. That's a fair complaint. That's a problem. Maybe this is not the case to get into it, but it's a problem.
Dan: You think it's a problem such that they shouldn't be allowed?
Will: Yeah. Or maybe like what we'll say-- I mean, maybe you should be able to do it in circumstances where your association otherwise meets the test for a class action or the way in which the association is an end run around our other rules of civil procedure. It just makes me think we have to bring them into harmony. So, you could do that through just saying it's not a thing, and you've got to use the existing forms. You could do it by saying you can do the thing, but it's got to only be in circumstances where it kind of would satisfy that kind of form or something, I'm not sure but--
Dan: Would you have to actually have a certified class or--?
Will: That's what I'm less sure about. [crosstalk]
Dan: [crosstalk] -imagine--
Will: Either you could imagine the test for stational standing that's just designed to match the class action test. Or, you could imagine saying you've got to actually have one. I don't know.
Dan: So, if you don't have that, like Students for Fair Admissions could get an injunction against Harvard against discriminating against them when they apply or something like that, but not against everybody.
Will: Right. Or I think you would ask, what is Students for Fair Admissions’ injury? Or how is the association--? Now, it's true there are members of Students for Fair Admissions who were injured. But if the University of Chicago doesn't issue my paycheck, does that mean that the Federalist Society, which I'm a member of, can sue the University of Chicago on my behalf, demanding my paycheck? I think not. But I think the same thing maybe should be true for other kinds of relief.
Dan: Okay, so why so little interest in that, you think?
Will: I think they really do, I guess, one emergent argument is nobody is happy with the status quo-- Well, nobody other than Justice Jackson is happy with the status quo where district courts regularly issue these nationwide injunctions or universal injunctions in a huge range of cases. And they know the number has gone up. And I think they know they should probably do something about that. And they spent a lot of time in argument trying to figure out what they could do about it. The problem is, one thing you could do about it is say, Sam Bray was right, these are unconstitutional. There are maybe three Justices who want to say that. So, if you don't want to say that and you want to say something, they sort of spent the argument trying to figure out, “Well, what can you say?”
Dan: Is Sam's view that these are unconstitutional or just not authorized?
Will: I think Sam takes the view that they violate Article III.
Dan: Okay, so the Congress could not authorize courts to do that.
Will: Right. I mean, Congress can authorize class action. So, Congress can change rules of procedure in various ways that are similar, but that Congress can't authorize courts to go beyond the case before them.
Dan: But the difference is a class action sort of makes it part of the case whereas--
Will: Right.
Dan: So, Congress couldn't just say, “We have a class injunction,” which is like whenever someone sues about something where they're injured and they're not happy about it and they win, the court can say, and also an injunction for the whole class without having gone through any kind of class certification procedure.
Will: I mean, I guess. So, here are two substantive things that-- So, with the class action, the class is bound to win or lose. So, if members of the class lose, they've lost. Whereas with the nationwide injunction, if you lose your nationwide injunction, the rest of the nation could still bring their nationwide injunctions. So, I think that might be one substantive difference.
Dan: Okay, the symmetry point.
Will: Yeah. And then, I think Congress can do things like enact complicated fallback laws. Like say, “If the enforcement of this law is enjoined in two districts in the country, then the law shall become unenforceable in any other district,” or something. So, like a severability or inseverability rule, but it's not enforceable with contempt. It doesn't have the asymmetry again. There's some things you can do that promote uniformity in similar ways. And I don't know where Sam's views are on all those things, but that might be a little different.
Dan: Okay, so you were saying about standing, just that there's enough people interested in the injunctive relief question that you just think that they're going to blow past that for now?
Will: I think so. I think they recognize this is a big problem and that they need to deal with it. Now, it might be, and I think this is kind of emergent argument too, that it's in a way a great vehicle and in a way a bad vehicle for dealing with it. So, this case has this feature that the SG is unwilling to defend in front of the Supreme Court, the merits of the executive order, which they say makes it an excellent vehicle because part of the reason the court never resolves this in other cases is in the end, the court just ends up saying what the answer is to the merits. And here, they don't have the merits in front of them, so they can focus on the intellectual question.
On the other hand, the fact that they all think the executive order is so illegal, which sort of seemed like where the weight of things were at argument and in a way, maybe something where it's especially hard to have a nonuniform rule because rules of citizenship seem like something that should be uniform, maybe it's a bad vehicle. So, I don't know what's going to happen now. My co-live blogger, Amanda Tyler, speculated, I don't think she's putting a high probability in this, but speculated tomorrow the court might just issue a supplemental briefing order saying, “Actually, we'd like supplemental briefing on the merits and maybe argument in October.” [chuckles] And they could just let this cook for a while.
Dan: September? We need to wait till October.
Will: [yawns] Hmm. Later the better. [chuckles]
Dan: Yeah. One thing I wanted to talk about is the way in which this-- and this is a follow-up to your point because you were saying, well, the merits are kind of tied up with this because the Justices seem to-- the weight of opinion seemed to be that this was an illegal order. Justice Kagan raised, I thought, a really interesting set of questions about that where she basically said, “Look, government, you keep losing these over and over.” On your view, they wouldn't 100% commit. The government would not 100% commit to respecting circuit precedent. Sauer said, “Well, we generally do that.” And did ultimately say, “Well, we would respect Supreme Court precedent on the question if the court ultimately rules on the constitutionality of the order.” But Justice Kagan sort of walked and gamed it out a little bit and says, “Look, as long as you keep losing, you're the only party that can actually get the constitutional question in front of us. And what is your incentive to do that?” If they're right on the remedial question, even if they keep losing in the lower courts, their incentive should be to never bring it to the Supreme Court so that they can keep enforcing it with respect to people that aren't named in the suits.
Will: I was trying to figure that out. So, this is assuming that people won't sue when it's enforced against them because every time they deny a Social Security number to a person who's born here, that person or their parents could sue and say, “No, you have to give us a Social Security number.” And if they lose every one of those cases, they at some point might be tired of that.
Dan: They might be, but it still would gum up the works quite a bit.
Will: Yeah.
Dan: Maybe we could even play the clip from oral argument.
[recording from the oral argument]
Justice Kagan: So general, on this question of expedition, I mean, it sort of depends on the government's own actions in a case like this one, where one can expect that there is not going to be a great deal of disagreement among the lower courts. I mean, let's assume that you lose in the lower courts pretty uniformly as you have been losing on this issue, and that you never take this question to us. I mean, I noticed that you didn't take the substantive question to us. You only took the nationwide injunction question to us. I mean, why would you take the substantive question to us? You're losing a bunch of cases. This guy over here, this woman over here. You know, they'll have to be treated as citizens, but nobody else will. Why would you ever take this case to us?”
John Sauer: Well, in this particular case, we have deliberately not presented the merits to this court on the question of the scope of remedies, because, of course, that makes it a clean vehicle where the court doesn't have to look at the-- [crosstalk]
Justice Kagan: You're ignoring the import of my question. I'm suggesting that in a case in which the government is losing constantly, there's nobody else who's going to appeal. They're winning. It's up to you to decide whether to take this case to us. If I were in your shoes, there is no way I'd approach the Supreme Court with this case. So you just keep on losing in the lower courts. And what's supposed to happen to prevent that?
John Sauer: Again, I respectfully disagree with that forecast of the merits. But in response to the question, what I would say is we have an adversarial system. And if the government is not, for example, not respecting circuit precedent on the court's hypothetical in the Second Circuit, someone injured in the Second Circuit could take the case up and they could say, “Look, the government is violating circuit precedent on the hypothetical multiple circuits.”
Justice Kagan: That's the case we're going to take, somebody who says, “After we've said that this all has to be done one by one by one, then we're going to take a case from somebody who objects to proceeding one by one by one.”
John Sauer: I'm not sure I understand the question. I understood the hypothetical--
Justice Kagan: If you win this challenge and say there is no nationwide injunction and it all has to be through individual cases, then I can't see how an individual who was not being treated equivalently to the individual who brought the case would have any ability to bring the substantive question to us.
John Sauer: They would bring a lawsuit in the federal district courts against the government for an injunction protecting them. And if the government wasn't respecting on behalf of the circuit precedent--
Justice Kagan: And then, they win. And again, I mean, you need somebody to lose, but nobody's going to lose in this case. It's just you're going to have, like, individual by individual by individual, and all of those individuals are going to win. And the ones who can't afford to go to court, they're the ones who are going to lose.
John Sauer: The tools that are provided to address hypotheticals like this, again, I-- [crosstalk]
Justice Kagan: This is not a hypothetical, this is happening out there. Every court has ruled against you.
[recording concludes]
Dan: Picking back up. I think you're right that the government is going to lose every time somebody sues. But I think the idea would be not everybody sues.
Will: Yeah.
Dan: I mean, not everybody is going to go to court and sue. And so that means that the government gets to just keep doing this forever with respect to everybody who doesn't sue, right?
Will: Gets to.
Dan: At least if the government is not firmly committing itself to following circuit precedent in relevant circuits.
Will: I think that's right. Now, again, maybe the answer is lots of people will sue. Maybe the answer is class actions, as we'll talk about. And this does still require the government to be willing to just take these Ls time after time. And eventually after interrogation from somebody else-- I don't remember if there was Kagan or Gorsuch, the SG did concede that they would seek cert on the merits in the future when they lose after more briefing. I don't know if that's true.
Dan: Yeah, I'm not sure you can hold them to that. I'm not sure that--
Will: Yeah. Well, there was an amazing feature of the argument in general, I thought, of which this was the most vivid example. But there were so many questions asking the SG about, do you concede to follow Supreme Court precedents? Do you concede to follow lower court opinions? Mostly, but not always. Do you concede to follow lower court judgments? Yes. They're trying to get the SG on the record a lot, which I think was actually maybe one of the best features of this argument. I know a lot of people didn't think there should be argument on this question because the SGs should just lose on the papers. But I suspect one benefit of the argument is just the Justices want to talk to the SG about this stuff.
Dan: Yeah. And that does reveal, I think, a fundamental purpose of oral argument, which is you can get a party's advocate up there and really present them with these hard questions that they have to answer in real time. They can't weasel their way out of.
Will: Yeah. I mean, I think I talked about this when we discussed some of these shadow docket litigation, like Abrego Garcia. I suspect the court would just like to get John Sauer in the room and say, “What is going on? [chuckles] What is your position?” Are these things binding? Will the SG obey them in the future? I don't know. And will the White House obey them? I assume that if John Sauer goes into the White House and says, “Well, I promised them that we're not ever disobeying a Supreme Court opinion,” I assume Stephen Miller is unmoved by that. [chuckles]
Dan: Yeah, I mean, maybe he gets fired or maybe he loses his credibility. I mean, this brings me back to Jack Goldsmith's piece. I think I mentioned this an episode or two ago, but his post about John Sauer's predicament, which is he's really going to be in a difficult position as time goes on, which between his duty of candor to the court and the strong political control that the administration is going to try to exercise upon him, I'm not sure it ends well for anybody in that position.
Will: Yeah. And that came up a lot. I mean, he was in a tough predicament here because they would say, “Well, really? There's no way to provide uniform relief to large groups of people.” And he'd say, “Oh, there is. There is the class action under 23(b)(2). And they'd say, “Okay, so can they get a 23(b)(2) class here?” And you'd say, “Well, we're certainly not conceding that.” [laughter] And I understand why he had to say that, but it's not a great answer.
Dan: Yeah, so it made me think-- so going into this, I was trying to imagine what the kind of intermediate options might be to the extent that the court does sometimes seem interested in crafting compromises. I mean, one of them would be to sort of do an Abrego Garcia move and say, “We need to make sure that these injunctions are not actually interfering with internal government processes.” That was a thread that was in the briefing about how this is actually not letting the government actually prepare to do any of this stuff, because the injunctions, at least some of them, seem to be worded in such a way that they bar internal government preparation. And that might be something.
Now, I'm wondering if you could imagine seeing an opinion, a kind of a Kavanaugh-esque opinion that says, “Yeah, in general, these universal injunctions are not really a thing, and maybe there are certain circumstances, but here the class action would be a better device,” and kind of just saying a bunch of stuff about how there's an alternate procedural route, in the same way that the court did Trump v. J.G.G. right?
Will: Yeah. That's possible. It's kind of funny because I think the court has been thought to be quite hostile to class actions in general and sort of tightened up all of the requirements. It's funny if the net result of this litigation will be to reinvigorate to some extent at least the 23(b)(2) class action, that's not necessarily inappropriate. And then, that'd be better, I guess, than if they say, “Oh, you can go get the class action.” And then in another case they say, “Oh, actually we lied. You can't get a class action.”
Dan: But there was this question that came up at the argument about whether you can get a preliminary injunction under the class action procedure.
Will: Yes.
Dan: And I think that my understanding is that the rule at least doesn't say anything about that.
Will: Right. I think the rule is not pitched that way. But then, Justice Gorsuch, I think, suggested that maybe the answer is yes, that would be sort of appropriate supplemental jurisdiction of the All Writs Act as a way of preserving your jurisdiction over the ultimate class action that you're likely to grant. One funny thing that I think several of the advocates alluded to is of course, the court did this a couple of weeks ago in the AARP Alien Enemies Act litigation and the court had got this application on behalf of a not yet certified class, a putative class as we call them, and just issued this order saying-- it issued a nationwide injunction saying, “Don't deport anybody until further order this court.” Which by the way, is still in place now almost a month later.
Dan: You mentioned that, I was like, “Wait. Is that still going?”
Will: My joke that the court is just going to put the SG in timeout is becoming less and less of a joke.
Dan: [laughs] Maybe we'll just keep that one going until January 20th, 2029.
Will: Cool off. So, that's another wrinkle that the court would have to work out. I was going to say one striking thing is I think during the argument of the two respondents’ council, one of them described it as a class action injunction. So, it was like evidence of what the class action injunctions would look like. And the other one described it as not a class action injunction and therefore proof that you needed nationwide injunctions. So, I don't know, the court might have some view of what it did or might not know what it did and be trying to figure out what's the theory under which what we did was okay.
Dan: Yeah. So, where do you think this goes?
Will: Here's the problem. I mean, the prediction problem I see is that if there were five votes to say nationwide injunctions are totally cool and totally fine, Justice Jackson is right, or nationwide injunctions are either unconstitutional or unlawful, except in some clear set of circumstances that you can list as X, Y, Z as Justice Gorsuch has written, the court would have said that already. Like, it had several opportunities to say that. And if they had five votes to say those things, they would have said them already. So obviously, they want to say something in between. And I just think they don't know what it is.
I guess my guess is that you end up with six or seven votes to say nationwide injunctions or universal injunctions are mostly inappropriate but are appropriate when either you have a class action. And again, maybe you need a real class action. Maybe you can have a kind of functional class action, I'm not sure. Or when universal relief is necessary to grant complete relief to the plaintiff. And New Jersey spent a lot of time in argument arguing that was true here.
Dan: Just because of all the practical problems.
Will: Yeah. And the specific practical problem that people show up in New Jersey, I mean people who are, who may or may not be citizens, people who are citizens under the law, but not under the executive order, show up in New Jersey and New Jersey wants to put them on Medicaid or whatever and they need a Social Security number to do that under current law. But they haven't been assigned a Social Security number because they were born in a different state. That's not subject to the injunction. And so now, New Jersey has an injury. That's the argument.
The New Jersey even-- I thought the New Jersey advocate was extremely good. Even said, “Look, you could imagine the SG could craft a narrower injunction, so they could go back below and make a motion to dissolve and say, ‘Look, we don't need to assign Social Security numbers at birth in these non-suing states because we've got a new regime where every time anybody enters New Jersey, they'll get a Social Security number or we've agreed to allow New Jersey residents to get on Medicaid without a Social Security number or something,’ but until they come up with one that would actually work, you should address our injury.” I think if they don't go the supplemental briefing route, which I assume they won't, although they kind of should.
Dan: On the merits.
Will: Yeah.
Dan: And you think they should just avoid this issue and just to kind of settle this thing once and for all?
Will: Well, why do I think they should? I think they should because the executive order is obviously unlawful and the Supreme Court has the discretion to put that issue on the table and just say so. And that seems like the most straightforward thing to do. I don't know. Is that a bad--
Dan: Well, maybe they should have done that already though.
Will: Yeah. Maybe.
Dan: I mean, I'm still just a little bit unsure what the internal thought process was about this procedure. They get this application from the government. The government has studiously avoided addressing the merits and its application. And their thought is, “Let's have a kind of full-dress oral argument, let's get amici,” all that stuff, and then not tell anybody why we're doing it and not address the merits. [chuckles]
Will: Yeah, well, I mean, so a more sympathetic way to think about that's not different, is to say we have this obviously unlawful policy, but this quite plausible and maybe correct procedural objection and the SG's bringing it to us, how to think about how those things fit together is tricky. So, they ask for kind of unusually long response time, and then it's still tricky. They just don't know what to say exactly. But they recognize what they say is going to be implications, so they buy time and get more chance to think about it at argument. And if they walked away from argument with seven votes ready to say class action or bust, great.
But if not, and especially if the nature of this particular case was part of the reason it struck them as harder than another case, then a supplemental briefing could let them find a better vehicle and take the case off the calendar. If you believe that ultimately, they're just trying to buy time, that's the next step, to buy time. So, I don't know if I really think they should do that, but another option, which would be the funniest option, would be if they just deny the applications without opinion.
[laughter]
Dan: 5-4.
Will: [laughs] I guess the third option is they could just sit on the applications for four years.
Dan: Yeah, that might be the funniest one.
Will: They just sit on them.
Dan: Or just do the hold in abeyance. Right?
Will: Yeah.
Dan: Is that Dellinger v. Bessent, that they did that? Which one was that?
Will: I think so. Yeah. So, they could just say the applications are held in abeyance pending further order of this court.
Dan: [laughs] That'd be good.
Will: I don't know. What do you think?
Dan: I mean, I think that's not crazy. I mean, I guess I was always puzzled from the beginning as to why they were approaching it this way. I do think if there is a very not implausible belief among some of the Justices that the government may actually take steps to avoid or at least delay the merits from getting to the court, then maybe the simplest thing to do is just say we're going to address it now. I mean, I'm not sure this is a question on which percolation is that valuable.
Will: Yeah, maybe not. I'm going to have to wrap up soon because I've got a class to teach.
Dan: Oh, they still make you do that?
Will: We go late here.
Dan: Okay. All right. Anything else?
Will: No. I guess it's possible by the time this episode drops, they will have asked for supplemental briefing or unanimously denied the application, but my guess is this is going to be an end of June special.
Dan: Yeah. That seems quite plausible. And in the meantime, those injunctions stay in place, right?
Will: Yeah.
Dan: All right.
Will: Anytime, we are held in abeyance.
Dan: [laughs] All right, let's see what happens.
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