After an unpredictably long hiatus, we're back to talk about what we missed. We debate the off-the-rails FedSoc panel Dan was on, work through some shadow docket happenings and the Court's two recent DIGs, ponder the implications of the election on the Court, and briefly discuss the first merits opinion of the Term, Bouarfa v. Mayorkas.
After an unpredictably long hiatus, we're back to break down what we missed. We debate the off-the-rails FedSoc panel Dan was on, work through some shadow docket happenings and the Court's two recent DIGs, ponder the implications of the election on the Court, and briefly discuss the first merits opinion of the Term, Bouarfa v. Mayorkas.
[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, we got to the stage where we've been getting a lot of emails asking for proof of life. It has been a little bit longer than it should have been since our last episode. I don't think we have any one excuse, decent one. So, you were teaching five days a week all semester?
Will: Yep, that's true.
Dan: That's something--[crosstalk].
Will: Like a real job.
Dan: Yeah. For non-law professors out there, that's quite unusual. That's the idea that a law professor would, like, do their job, not just one or two, but five days out of the week is pretty extraordinary. I assume that means you don't have to teach much for the rest of the year, though.
Will: I've got some seminars, but yeah, that was my heaviest lifting for a while.
Dan: Okay. Yeah, I had my heavier teaching this fall. Other stuff, I don't know, you got your wisdom teeth out, apparently, decades, decades later than the rest of us.
Will: I was always a late bloomer.
Dan: Yeah. Well, you're just unusually wise. You've been holding onto that wisdom for longer possibly-- I had an extra wisdom tooth. I had five.
Will: But you didn't keep it. So, you lost the wisdom.
Dan: Yeah, no, I lost it. I lost it early. That's the fun fact about me for today's episode. Any other excuses?
Will: I don't know. What else have you been up to?
Dan: So, I was on this Federalist Society panel at the National Lawyers Convention, [crosstalk] which I went to. Where were you, by the way?
Will: Teaching.
Dan: Okay. I thought, like, what is the world coming to when I go to the Federal Society National Lawyers Convention and you don't bother? Have they taken your card away or something after--?
Will: [laughs] Not yet.
Dan: After all that Trump stuff. So, lots to say about that. We can talk about that later, I guess. Anything else? Excuse wise or is that-- I mean, that's not great. We could probably do better than that.
Will: Yeah. This might be a record. This is the longest break we've gone between episodes since the show started?
Dan: I think that's quite possible. But yeah, there was no conscious decision to do that. There was actually one point at which we had a recording session on the calendar and something you were like, “Oh, can we reschedule?” And then it fell apart and- [crosstalk]
Will: Yeah.
Dan: [laughs] -we did not reschedule, so.
Will: Unscheduled. Unscheduled, that's what our motto is.
Dan: Yep. And I'm not going to apologize for the delay because we are very clear with people that we make no promises. But we hear you, we know you want more episodes, and I think we will do so more regularly in the spring. And the show's sweet spot has always been that period of time where the court is grinding out the opinions, those are a little bit easier for us to respond to in real time than these kind of amorphous case preview type episodes.
Will: Yeah, yeah. I agree.
Dan: So, enough excuses. Yeah. I will say a few words about this panel I was on, which was interesting. The panel's topic, this is in DC, about a month ago, was about Judicial Independence and the panel was moderated by Judge Ho in the Fifth Circuit. And then the panelists were me, a friend of the show, Kannon Shanmugam, friend of the show, Steve Vladeck, now a law professor at Georgetown, previously at Texas, and Fifth Circuit Judge Edith Jones.
Will: Who is, so far as we know, not a friend of the show.
Dan: I didn't get any indication of friendliness towards the show or really-- [crosstalk]
Will: And it made the show.
Dan: My guess is she's not really aware that the show exists, which is fine. But the panel, I gave a spiel I have done in various places about here's why, I think. The basic way we divvy up Supreme Court seats is problematic and is causing long-term breakdown of norms that is ultimately bad for everybody and we should consider reform. It's the premise of the short article I wrote in the Minnesota Law Review Symposium, which you also had been--[crosstalk]
Will: Yeah.
Dan: Couple years ago, and I think it's something similar to what I'm going to say. You and I are both trekking out to Stanford to speak to a class out there about these topics. So not a super fiery pitch. And Kannon gave a version of a speech he gave at Duke about here's why court reform is bad and so forth.
Will: And why the bar needs to stand up for legitimacy of the judges?
Dan: Yeah, and I like Kannon and I've given comments on that speech and I think it's fine. I don't agree with much of it, but I don't object to it. Steve Vladek talked about something I think is important and interesting. Basically, all the ways in which congress and the presidency have tools to push back on the court and how they have exercised that power in various ways, over the course of American history, and that there's a bit more of a dialogue between the political branches and the courts in the Supreme Court in particular, than some simplistic conceptions suggest. I thought his remarks were great.
And then Judge Jones took things a little bit off the rails, I would say, and went on a tirade about how Steve's criticism of single Judge divisions in federal courts. Basically, Steve has criticized these practices because they enable litigants to judge shop. They can file lawsuits in certain divisions in certain judicial districts and know for certain who the judge is going to be. And he has argued that this is problematic. I agree that it is problematic. I think a lot of people agree that it's problematic for various reasons. Judge Jones whipped out this file folder. She said, “I have these tweets here printed out.” I assume her law clerks printed them out and accused Steve for that criticism of causing Judge Kacsmaryk, who's one of the judges for whom this technique has been leveraged, accused Steve of causing him to receive death threats.
And it just was very fiery and it was an awkward situation to be in. The thrust of her comments were basically trying to paint him as hypocritical for not sufficiently criticizing forum shopping when practiced by left leaning litigants. Although, he has examples of how people have been concerned about this in ways that don't track ideology, in patent cases and so forth. And so, it's really not a fun experience. I had to figure out in real time what I was going to say, I ended up just saying, “Look, something to the effect of, we should be debating these ideas on the merits and not just trying to paint people on the other side as hypocrites.” That's really missing the point.
And in fact, the whole thrust of my earlier comments had been, we should try to be able to talk about these issues on the merits, regardless of the fact that there's always going to be partisan stakes to them. And so, I don't know. You watched from home, I believe. What was your reaction?
Will: I mean, I had many reactions.
Dan: You tweeted about it a little bit.
Will: Yeah, so I think I heard this was happening. Maybe I might have heard from you in real time. I forget. And so, I logged on. And I will say, when the file folder first came out, I was interested. I mean, I think Steve is a friend. I like him a lot, but he certainly dishes it out. And so, I thought, okay, maybe this is good. Maybe he dishes it out. Now he's going to get a chance to take it. [Dan laughs] And then I was really underwhelmed by the contents of the file folder. Like, I guess-- [crosstalk]
Dan: Yeah. Yeah.
Will: One question is whether hypocrisy arguments are productive or good and whether or not sitting Fifth Circuit judges seem-- Lots of questions there. My first problem is the file folder was lame. [Dan laughs] The supposed list of terrible and temperate attacks he'd made on judges were him just saying things, like this case was filed in front of this judge, or Judge Kaczmarek is at least more conservative than many of the Northern District of California is-- [crosstalk]
Dan: And then criticizing him for some stuff that happened before he was a judge. There was this attempt to take his name off an article he had supposedly cowritten.
Will: Yeah, yeah. This is a huge-- I mean, again, yeah. So, he submitted an article to a secondary journal at the University of Texas, and then once he was nominated, he pulled his name off the article and substituted the names of two of his colleagues at the organization where he worked who had supposedly been the real authors of the article anyway. And this then meant the article didn't have to go in his confirmation file. And the defense of this was not lying to the Senate is that it was actually academic misconduct rather than judicial misconduct because he had never been the author of the article in the first place. It had always been false to list him as the author, and he was just correcting the record by putting the real authors on the article, which I find totally plausible, to be clear.
Dan: But I find plausible. But also, I find less likely than the real story which is that he had been the author and was trying to--
Will: I don't know.
Dan: I mean, not the real story, but then the alternative explanation.
Will: I find It was really academic misconduct rather than dishonesty to the Senate Judiciary committee, equally plausible. I have no real prior either way, but it's not like a great story. [chuckles]
Dan: Yeah.
Will: Anyway.
Dan: It's a totally fair thing to criticize, right?
Will: Yeah. Anyway, so I was pretty underwhelmed. I would have a just different feeling of the whole thing if Judge Jones had a bunch of really good arguments and made them in an intemperate way that was arguably inappropriate for a sitting judge to make, then we could have an interesting conversation. And I've had many students clerk for Judge Jones, and I'm sure they did good work for her. And I really hope my students were not the ones who printed out those tweets and couldn't come up with something better. There's got to be something better you could have come up with.
Dan: Yeah.
Will: So, the one other thing slightly more on the merits, the one interesting talking point that both she and Judge Ho raised, which makes me assume this is a thing that Fifth Circuit judges must say regularly. So, it was at the forefront of their minds was that what about William Wayne Justice, who was a liberal district judge in Texas in the 70s, and from what I can tell, I've been looking into this since the talk, did seem to have a single judge division for a period of time in which a bunch of civil rights cases were filed in front of him and did a bunch of activist structural injunction stuff. I did think it was interesting that so far as I could hear, Steve never said, “Oh, yes, that was bad and shouldn't have happened.”
I mean, he did say, “It's changing the subject and that there's plenty of criticism of that,” but I didn't hear him say that was equally bad. That was a little strange. Maybe he doesn't think it was equally bad but still.
Dan: I mean, but to the extent that the criticism is about, he's being criticized for where he's devoting his efforts. I mean, also, didn't that happen, before all of us were born?
Will: Yeah, right. I mean, that's why I think it--[crosstalk]
Dan: There might have been judge shopping in the Court of Chancery.
Will: Right. Yes. That’s why--[crosstalk]
Dan: I don’t understand the argument.
Will: I was just surprised. I would expect people who are against judge shopping now to, at a minimum, score the easy points of saying, “Yes, I am also against the irrelevant judge shopping that happened in the past rather than try to defend it.” Maybe people do say that. I don't know. I also had this reaction that the fervency with which the Judges in the Fifth Circuit defend their current operating procedures makes me more suspicious of them rather than less. I mean, so my view is some of these criticisms are probably correct. Some of these criticisms might be overblown. Judge shopping happens all the time, but when it happens on a scale where it's sufficiently bad, then we do something about it. Like with the patent stuff, where the district has reformed its rules to make it harder for one judge to have all the patent cases, and I don't think he should be sanctioned for what he did up till now. But also, it's good. That now, you can't do that as much.
Dan: And you can believe that judge shopping is bad without saying anyone is corrupt or anything like that. And without saying something that threatens legitimacy of the judiciary, like, it's just acknowledge-- I mean, we can all acknowledge that different judges have different views and approach cases differently, and part of the way justice works is that you roll the dice.
Will: Yeah. I'm totally going to get in trouble saying this, but I believe that the judges in the Northern district of Texas, like Judge Hendrix and Judge Kacsmaryk, are proceeding in totally good faith and are just doing what they honestly think the law requires. And then it is a coincidence that their views of what the law requires are sometimes quite outside what many other judges would think the law requires. And not necessarily a bad thing, but it's a bad thing if the system is-- [crosstalk]
Dan: What do you mean by coincidence? I mean, it's not like they're randomly choosing the outcomes. It's just they have more conservative judicial philosophies. Right?
Will: Right.
Dan: It's not a coincidence.
Will: What I mean is, it's not like they are picking those results in order to make conservative things happen or something like that. They have views of what the law requires, and they're following them.
Dan: Yeah. I mean, maybe, maybe not. I don't think it really matters, because-- [crosstalk]
Will: Where do judicial philosophies come from is a deep question.
Dan: Yeah. The point is that if you have a system with lots of judges, there's going to be outliers and a system that enables litigants to, even without any particular connections to the forum, just to pick those judges, I think is bad.
Will: Exactly. It's bad. And then we ought to try to fix it. But then when the Rules Committee came out with these case management practices to try to recommend the districts switch, make it harder for that to happen. And then there was a whole kerfuffle because maybe that's outside the jurisdiction of the Rules Committee, depending on how you read the statute and depending how you read what the Rules Committee did. And like, the harder sort of-- [crosstalk].
Dan: The Fifth Circuit is refusing to comply with that, right?
Will: Yeah, exactly. Similarly, there have been several really quite heated mandamus battles in the Fifth Circuit, where a case is filed in the Fifth Circuit-- [crosstalk]
Dan: Is that how you say that?
Will: Mandamus? You prefer mandamus?
Dan: Yeah, I just thought that was what we had all settled on. As an originalist, I thought you'd go with the older-school pronunciation.
Will: I should have known what the older-school one is. I do say gerrymander rather than gerrymander. Even though [crosstalk] gerrymander.
Dan: Yeah. That's reasonable. I mean, you just sound pompous saying it that way.
Will: Yeah, well, I teach the students both ways. I teach them, at some point somebody's going to say it's really gerrymander, and you have to decide how you-- Anyway, there have been cases where the Fifth Circuit threatens to sanction people for trying to transfer cases out of the Fifth Circuit. And so those things, they make me suspicious, I got to say.
Dan: Yeah, I guess I share some of your reaction that part of what bothered me about it was the intellectual unseriousness of the arguments and the criticism. And I thought that-- I am very biased in the debate. But I really did think that, if anything, it proved both the points Steve and I were making, at least certainly didn't detract from them. And I don't really understand the position being advanced. The position is that what, the public can't criticize the way the judiciary is structured? I was trying to encapsulate the argument, and I am struggling to come up with the principle that it's going to lead. If you say that, “Gosh, this system is bad because it enables judge shopping, that necessarily leads to death threats, and so we can't make those arguments.” I really don't understand the argument.
Will: I don't understand either. And, again, I don't think Judge Jones covered herself in glory in this episode. I do think there are people, and I don't think you or Steve were among them, who too frequently jump to bad faith explanations for what judges are doing, and I think that's a bad thing. And I wonder if some of the [unintelligible [00:15:26] Judge Jones was confused and has heard versions of the bad faith argument too many times before and thus lumped you guys into the people making the bad faith arguments rather than the good faith arguments, which would not be exculpatory, but might be some words it's coming from.
Dan: Yeah, that could be. But if you're going to make that accusation, should really back it up.
Will: I agree. I agree. I mean, look, it is possible that Judge Kacsmaryk’s death threats, some of them are causally related to the amount of attention he's gotten in this context. It's possible that if Steve Vladeck hadn't written a Slate article making him a household name that he wouldn't get as many death threats as he does. I'm a believer in academic free speech, so I think that Steve is not morally responsible for any death threats that unhinged people send just because they listened to what Steve said. But it's possible.
Dan: Oh, yeah. I mean, it could be. I mean, if no media organization reported on what the courts were doing, nobody would know who the judges were. I mean, I just don't know where you possibly are supposed to draw that line. I mean, your colleague Adam Mortara was tweeting about this a bunch, and I struggled to figure out, he was very supportive of Judge Jones, and he's been very critical of Steve and has Trumpian derisive nicknames for him. But again, I was trying to understand what the position being advanced is, and it seems to be that we're just not supposed to criticize judges at all, I guess, and that somehow doing that is destructive of the rule of law.
Will: I made the mistake of getting into a Twitter fight with Adam Mortara over this issue, and I'm not going to make the mistake of repeating it on this podcast.
Dan: Okay. Well, maybe someone out there will come up with better versions of these arguments. I mean, Steve raised this question in his post on his Substack in the aftermath, should he still engage in these FedSoc events? And he says, “He's definitely still going to do the student events, but he's not sure he's going to do the national events.”
Will: Did you think that was an appropriate response?
Dan: I think that's really up to Steve. I think in terms of what my view is, I probably would still do them. I don't think the Federalist Society showed itself in its best light. And I do think that this suggests that maybe having this mix of panels is maybe not ideal. Academics, judges, including some judges who feel a personal stake in some of the criticisms being made. And then you have Supreme Court and appellate litigators, people like Kannon, who are going to necessarily be constrained in what they can say, given their role. It seems like maybe not a recipe for the right kind of serious debates for which the Federalist Society is known, or at least wants to be known.
Will: I guess I do disagree on this one. And I think you mentioned this. I think there was a statement the next day by Dean Reuter that was a veiled apology to Steve or a reminder that--
Dan: Which is surprising. It's not the kind of thing the Federalist Society usually does. So usually it is very hands off, doesn't take any positions, anything like that. So, I was a little surprised by that.
Will: Right. So I guess here's the thing I think is good is, I mean, I've read a lot of writing about this exchange, and I've talked to a lot of people offline about this exchange, and a lot of conservatives who watched this exchange, who probably didn't come into this exchange as Steve Vladeck-Dan Epps partisans, left the exchange thinking that you and Steve made a lot better points than anybody else did and watched the exchange and left thinking like, “Oh, these criticisms aren't very good and if anything are damning and if this is the best they've got, that moves me a little bit.” And I guess I do think that's a good thing. I mean, it doesn't speak well of all the people involved exactly. But I think the fact that it's a forum in which a bunch of people who don't necessarily share your priors will come and can be moved at least somewhat.
Dan: Yeah. Honestly, that was my take on it in the end, which is it was a little bit unpleasant in real time, especially having to go through the thought process of, “Do I say something? Do I not say something. This is a sitting federal judge. I don't really want to get into something with a sitting federal judge, but I also don't want to let some of this stuff go without comment and make it seem like I agree with it.” That wasn't my favorite, but again, being biased. But I do think that it helped propagate my ideas in that way. So, I don't know, got a few free nights in D.C.
Will: I mean, it's not like people won't talk about these things otherwise, but I think the modal form of exchange otherwise tends more towards the echo chamber where readers of Steve's Substack or whatever read what's wrong with Fifth Circuit, and Fifth Circuit clerks or people who hang out at Fifth Circuit bar events talk about why liberals don't understand what they're talking about. And I guess I think it's good. It's a good win.
Dan: But I guess from the FedSoc's perspective, if the goal of the FedSoc is largely to advance conservative ideas, it seems like a better panel would have been me and Steve and then people like you or Steve Sacks who are going to come in with pretty hard-hitting arguments. And Steve has wrote something in response to one of my court reform pieces that was, I don't agree with much of what he has to say, but it was really good and made some hard arguments, and that seems like that's what the FedSoc should want. And so maybe having this weird role mismatch between academics who are pretty free to say whatever we want and judges who are constrained and who are not engaged in that same inquiry, same free-wheeling discussion, they're somewhat constrained. And then, lawyers who are also somewhat constrained, maybe it seems like you should have academic panels and you should have judge panels.
Will: Yeah, it may just depends on the judge. Look, if instead of Judge Jones, they'd gotten, like Justice Kavanaugh to be on the panel and talk of why he thought court packing was a bad idea, I bet it would have been a great panel. I mean, I don't think he would have made the most sophisticated arguments, but I bet he would have said interesting things. I bet it would have been productive. Hopefully-- [crosstalk]
Dan: Would have been different, yeah,
Will: Hopefully he'll take the invite next time, you know.
Dan: Yeah. But again, even that would be awkward, right?
Will: It would be hella awkward. But it'd be interesting.
Dan: It would be interesting for sure. And this was interesting. Okay. So, yeah, I'm not a no on future invites, but I would be curious to know who's on the panel. This is the second FedSoc event I've done. The other one was a Zoom event, but where there was somebody else on the panel who was saying stuff I thought was not just that I disagreed with, but was wrong and dumb. Dumb enough that maybe dumb is the wrong word, but just required a response. Otherwise, it was going to be problematic for me to not weigh in on this. And again, that is a stressful situation to be in.
And so, I think that I might see who's on the panel and not participate if I feel like it's going to be that kind of a situation just because it's-- [crosstalk] I don't need-- who needs that stress in their lives.
Will: So, with the time to reflect. Are there any other things you wish you'd said that you didn't think of in the moment that you want to say now?
Dan: Honestly, not really. I feel like I made the point. I wondered… I mean, I think I've expanded on it some here. And I really just continue to think we should be able to talk about the structure of the court system and the right way to design it and acknowledge that there are partisan stakes and also try to evaluate the arguments on their merits. And the partisan stakes might explain why any changes are never going to be possible. But I still think we should be able to say, “Yes, this is a good way for constructing a judiciary, or this is bad, or there are not good arguments here, and maybe it's one we're stuck with.” But I do think these exercises of trying to paint people we disagree with as hypocritical. I don't think it accomplishes anything. I don't think it persuades people, and I think it maybe scores points among co-partisans.
I mean, Mitch McConnell liked Judge Jones's remarks. He came to her defense on the Senate floor, calling Steve the General Patton of the legal left. Which is great, I guess. [laughs] I don't know what that makes me. Makes me just the, like, I don't know, aide-de-camp or something.
Will: There are a lot of generals.
Dan: Am I part of the legal left-ish? This podcast is not really part of the legal left. So, yeah, I don't know. All right, so there's a lot potentially to catch up on. Much of it we're going to gloss over. There was an election.
Will: Yeah, I was going to say that. That was interesting. We are a Supreme Court podcast rather than a presidency podcast. So that's not immediately in our jurisdiction. Although, of course, the election and the change of administration could have lots of interesting implications for the court. I don't know if we're going to see any new nominees anytime soon. I don't know-- [crosstalk]
Dan: Yeah, there seems to be a lot of speculation that Justices Alito and Thomas are going to leave and be replaced by their former clerks. I don't really know if that's based on anybody's inside information or if that's wishful thinking or what.
Will: Yeah.
Dan: If that would happen, I mean, you would then have a five justice, very strong conservative majority, all of whom would be in their 50s or younger.
Will: Wait, why five?
Dan: I'm saying--
Will: Oh, because the Chief would be old.
Dan: Yeah. I'm not counting the Chief. I mean, they would still have the Chief, but I just mean you would have a full majority of the court that was appointed within a short period of time and so could continue collectively to control the Court for some significant period of time, which would be good for some people, bad for others.
Will: Yeah, I don't know. I do think it'll be interesting, I think, to see the new Trump SG's office, the last Trump administration SG's office, Noel Francisco and Jeff Wall was, I think, very professional, although definitely took some positions that previous SG's offices would not have taken. And another thing that will happen is possible regime change, switching of positions about various things. One of the hottest button arguments the court's heard so far, this Skrmetti case about gender affirming care is one on which the cert petition is by the United States. And so, I guess If a new SG's office suddenly says we no longer stand behind the arguments in the cert petition, that'll prompt some complicated questions for how the court wants to handle it.
Dan: There's more to say about that. Let's come back to that in a second.
Will: Sure.
Dan: But just to close the thought. Yeah. I think John Sauer has been named as the next SG. I mean, it has to be formally nominated and confirmed and so forth.
Will: A Missourian, right?
Dan: A Missourian. He was the SG of Missouri. He's a former clerk for Justice Scalia and he successfully argued the Trump immunity case. So, he's certainly a very smart, capable, competent lawyer. He may be someone that Trump perceives as more loyal than some of the folks the last time around. It does seem like this new round of executive branch appointments looks to be more focused on people that are perceived as solidly Trumpian. Have you been vetted for much in this position-- [crosstalk]
Will: Positions in the administration?
Dan: Yeah. You've been pretty loyal. You had that whole thing about saying he was ineligible to be president, but who still remembers that?
Will: Yeah, right. No, they haven't been calling to see if I want to be head of OLC. [laughs]
Dan: Would you do it?
Will: Head of OLC?
Dan: Yeah.
Will: I guess I would have to meet the AG because the head of OLC reports to the Attorney General and you want to know if you have a job like that, whether you trust the Attorney General or not and how that's going to look. I would have to think through carefully the de facto officer doctrine because I would be accepting a commission from somebody who's not eligible to be president and that arguably be invalid unless you believe that the de facto officer doctrine would render the commission de facto valid, notwithstanding Trump's constitutional ineligibility, which should be a complicated intellectual hoop to jump through.
Dan: I thought only Congress was allowed to determine whether the President was ineligible.
Will: That's not what Supreme Court said, [laughs] and they were wrong, and I would have to stop doing my job for a while and move to DC, that seems like a pain. So, hard to see it.
Dan: All right.
Will: Hard to see it.
Dan: Well, I'll let you know what happens if they call me. Because, I mean, I'm the guy who gets invited to the Federalist Society conventions now currently. [crosstalk] Although, I guess the Trump people don't actually even like the FedSoc. They're too principled, committed to the rule of law.
Will: Yeah, that's true. FedSoc is principled and committed rule of law. [laughs]
Dan: [chuckles] Or perceived that way by-- [crosstalk]
Will: Yeah, I think you get invited to a lot more FedSoc events than I get invited to ACS events.
Dan: ACS does not strike me as the most active organization. I mean, I got invited to one Zoom panel for ACS in the last couple years, so I don't know. I've never been invited to speak at their national convention.
Will: Yeah, I'm not jealous. I'm just-- [Danl laughs] the organization seemed to work differently.
Dan: Yeah. Okay, but does circle-- Anything else to say about election implications?
Will: Not yet.
Dan: Okay. Circle back to Skrmetti.
Will: Yeah.
Dan: Case with a few too many consonants in a row. Yeah, that one, I mean, it seems clear all but certain the Trump administration will change position on day one, or how many days it takes to get its staff operational, appointing someone to be the acting SG and so forth. I guess there's some possibility that some of the plaintiffs whose petition wasn't granted, their petition could get granted and they could come in.
Will: I'm not sure it's even necessary. So, first of all, on day one, what is the SG going to do? So, one option is they could just send a letter saying, “You should know, we now want to lose.” But if they do that and don't withdraw the petition, that doesn't necessarily mean the court loses jurisdiction under US v. Windsor, where the court did something similar without an administration change. The SG’s office showed up, said, “We want to lose.” And still going to be concrete stakes from the judgment, and because there were other parties on the other side who'd argued the case, the court was like, “Well, we could still decide this now.” That was wrong and Justice Scalia dissented, but still, there'd be precedent.
Dan: So, what the alternative is to formally say, “We move to have our petition be dismissed,” or something like that?
Will: Yeah. And I was trying to figure this out under Supreme Court rule, I think 46 a party can withdraw their cert petition with the consent of all parties. But if Tennessee says, “No, we'd like to win. We don't want the cert petition dismissed. [chuckles] We want you to rule in our favor.” And then, yeah, maybe there's some different rule, maybe there's some way-- [crosstalk]
Dan: If you're the Trump administration, it also looks like you're going to win. I mean, it does based on the argument, it did seem like there were going to be at least five votes to uphold the state law, limiting banning this kind of gender affirming care. Justice Gorsuch strangely silent at the argument.
Will: Yeah. Do you read anything to that?
Dan: I don't know. It was interesting because at the argument, one thing that came up multiple times was Bostock. His famous opinion interpreting Title VII to extend protections to gay and transgender individuals. It's not directly on point because that was a statutory case and this is a constitutional case about the equal protection clause, but relevant because the United States here is trying to make similar arguments to try to say, “Well, this is not just a ban on transgender care, this is a sex-based rule.” Because you're saying this care for a male patient is not okay for a female patient or assigned female at birth patient. And so, it's a very similar move, logically, rhetorically, that was made in Bostock, right?
Will: Yes. I mean, yeah, I get the similarity, although it doesn't have the text to work with.
Dan: Yeah, yeah. But I mean, if you take for granted that the Equal Protection Clause does require scrutiny of gender-based classifications, then. And if you buy the Bostock reasoning that just rules against.
Will: Yeah, I see it.
Dan: Affecting transgender people are just discrimination on the basis of sex, then put those two together, then maybe it works.
Will: Yeah, I think there is very little probability of Justice Gorsuch endorsing the challenger's arguments.
Dan: Yeah. But sometimes he talks a lot, sometimes he doesn't talk at all. Why do you think he's not interested in this case?
Will: I don't know. I mean, yeah, I've read that when Justice Gorsuch doesn't talk, that usually means he's going to be vote for the government. I don't know if that's true. I have the vague memory that he actually didn't talk much in Bostock. Maybe I'm wrong about that. If I'm right about that, though, might be good for the challengers. It could just be he knows that it'll be that everybody's looking at him and how he's going to square this with Bostock and so didn't want to just speak off the cuff about that and wanted to really work it out.
Dan: I am looking at the Bostock transcript, and I regret to inform you that the thing you heard was incorrect.
Will: Okay. He talked-- [crosstalk]
Dan: [crosstalk] -asked more than a dozen questions.
Will: All right, great. You don't regret telling me I'm wrong on the air? [laughs]
Dan: I mean, I regret for you that you have one of these rare moments where all Supreme Court knowledge is not perfectly encapsulated in your brain. I have to look all this stuff up. I don't hold this stuff in my head.
Will: Well, obviously, I don't either.
[laughter]
Dan: Can I just say quick side note?
Will: Yeah.
Dan: I have been trying to keep up with things by listening to most of the oral arguments, which I have successfully, and that's fun to just listen to them all. One thing-- [crosstalk]
Will: Can't listen to our podcast.
Dan: Yeah, [laughs] I never listen to our podcast. I don't like hearing myself talk. But one thing I noticed, Justice Gorsuch has this move he does, like, a bunch. He's probably done this four or five or six times this term alone. And I haven't gone back. I would love someone to go back and look and see how often he's done this. Where he likes to say to the advocate, “Let me see if I've got it.” [Will laughs] And then he gives some theory, and then he likes to say something and says, “Have I got it?” So, he says that over and over, this is something that maybe I'd heard him do before, but I never picked up because I didn't listen to them all in close succession. I didn't pick up quite how frequent it is.
Will: Yeah. And would you say when he does that, is it more often than not actually a helpful question where he's trying to sum up the advocate's position, or a “gotcha” where he's trying to.
Dan: I think it's a helpful. I think he's just trying to make sure he understands the argument. I think sometimes it seemed like maybe he was putting a spin on it. That wasn't necessarily helpful, but I think it was on balance, helpful. If you're the Trump administration, maybe the rational thing to do is just file the brief saying, we disagree, we disavow the position we took, but don't try to get the case dismissed. Try to get the case decided on the merits because it looks like, based on the argument, that the decision is going to be what the new administration would want.
Will: Yeah. Maybe at that point, if you're the court, you start to worry whether the case is moot, but then you've got the other challengers as well. Yeah, it's complicated.
Dan: I mean, would you reargue it and let those folks get argument time or--?
Will: I don't think so. I mean, you could.
Dan: Yeah. I confess to not finding the current administration's position in that very compelling. Based on existing-- [crosstalk]
Will: Current administration. The Biden administration.
Dan: Biden administration, yeah.
Will: Yeah.
Dan: I think it's a very heavy lift to say that this area, the state regulation of medicine, is one that should be constitutionalized. And I think it depends on this clever rhetorical move of trying to spin these things as just gender classifications when it's obviously deeply related to gender. But I think it's a little bit more complicated than that. I also tend to think this is an area where the Biden administration is way out in front of where a lot of the country is, including a lot of people on the left, I think, are actually deeply skeptical. If you talk to them privately, they're deeply skeptical of some of the positions on this kind of medical care for kids and arguably further ahead of not exactly where the science is, which I think has really up for debate and moving quickly and other European countries have dialed some of this back. So, I don't know. I never thought this was a winner of a case for the government.
Will: I think it was doing pretty well in some of the lower courts before the Sixth Circuit came along, right?
Dan: Yeah. I think the plaintiffs had won multiple of these cases. So, it's obviously not a frivolous argument, but getting this court to endorse it just strikes me as extremely implausible.
Will: Yeah, same. I don't see it.
Dan: It strikes me as an issue where, if Democrats want there to be real change on this issue, it's going to probably have to come from politics, and not from the courts. Okay. Maybe some quick discussion of some orders list stuff type stuff.
Will: Sure.
Dan: I want to talk a little bit about this case Glossip, that were going to talk about a couple months ago and never got around to it. But let's just try to. Maybe this episode will be more focused on odds and ends. So, we had a couple DIGs, a couple cases dismissed as improvidently granted, which the court doesn't love to do. It's embarrassing when that happens. And we had two from the same sitting. And in a world where the court really doesn't grant very many cases, to have multiple cases DIG’d, I think is embarrassing.
Will: So, what's going on with these?
Dan: Well, so one of them, I thought was more obviously going to be DIG’d than the other. The one that I thought was very obviously very likely to be DIG’d was this case Nvidia. These are both securities cases. Nvidia was a case about pleading standards in securities fraud litigation. And at the oral argument, it was a heavy hitting oral argument. It was on the petitioner's side, the defendant in the case, Nvidia, and Nvidia official.
You had Neal Katyal, former Acting SG, and on the respondents/plaintiff side, you had a friend of the show, Deepak Gupta, who's one of the best plaintiff side appellate litigators in the country and has argued before the court a bunch of times and has been able to piece together some improbable victories in those cases because he's a very good lawyer. And it seemed to become clear just listening to the argument and without having gotten deep into the underlying legal issues on my part, that the court was getting frustrated that the Deepak was not a Deepak-- Deepak was sort of basically saying, “We think in this case the allegations were sufficient and the court was trying to press Katyal and trying to say, “Well, are you really taking this categorical position or not that you got us to grant cert on?”
At one point, Kaytal kept saying this thing, the complaint eats itself. And at one point, this is one of my favorite oral argument moments in a while the Chief Justice says, “I have just one question about analogy. I've never heard the analogy, “The complaint eats itself. What does that mean?” And then Katyal tries to basically explain. And I think he's just sort of saying like, the allegations in the complaint are inconsistent with theory.
And then the Chief says, “Okay, I'm not sure that's how that's eating itself, but I'll take your word.” [Will laughs] And that was one of my signals that the argument wasn't going great for his side, the petitioner's side. I came out of listening to that one, I thought that one was very likely to get DIG’d. And it was, although it was not the first case from that sitting to get DIG’d. They also DIG’d this other case, Facebook v. Amalgamated Bank where the petitioner was aforementioned, friend of the show, Kannon Shanmugam and this was basically a case about the language that has to be disclosed on a particular corporate disclosure form. I don't know if you listened to that argument. It wasn't as obvious to me that was a clear DIG from the argument.
It did seem like it was another case where it was unclear. The court was trying to figure out, “Well, is there a categorical rule here or is this just a case that's about where there's more agreement about what the rule should be and just disagreement about how that might shake out in this individual case?
Will: Yeah, I got that sense.
Dan: So, the DIG for that one came out first and my reaction was, “Well, I thought it was they were going to DIG in Nvidia and not in Facebook.”
Will: Yeah.
Dan: I discovered that Wikipedia has a list. This is really useful of all of the DIGs on the court since the 1989 term at least that purport to be a complete list.
Will: Oh, that's amazing. Hold on.
Dan: Yeah, I gave you a link to this.
Will: Yeah, they have the two DIGs from my term. Yep. That's interesting. I wonder if there's a good study of these. It'd be a fun. So, the delay makes me think, sometimes there's a consensus to DIG a case and sometimes some people want to DIG a case and some people still think they can save the case. And sometimes you wonder if the delay is like, “Can we put together a theory?” Can we-- [crosstalk]
Dan: Other people speculated they just didn't want to do two in one day because it was extra embarrassing.
Will: That seems unlikely. I mean, guess. If you look at the list, there's a case from the term I clerked, Philip Morris USA v. Williams that it took like four months to DIG. It was argued December 3rd and it wasn't DIG’d--[crosstalk].
Dan: Was there a published dissent from the DIG?
Will: Nope.
Dan: That's always so interesting is that there's tons of work that goes in and presumably when it takes that long, there must have been a lot of inter chambers communication, possibly actual drafts written. And then most of the time when they DIG, it's just the one-line order and that's it. Sometimes people write dissents.
Will: Yeah.
Dan: There was one that came out my term, Robertson v. United States ex rel. Watson.
Will: Oh yeah.
Dan: Where it was a 5-4. There was a four Justice dissent, which is interesting, I think I say that is not the norm.
Will: Yeah, or another, there was a no dissent DIG First American Financial Corporation v. Edwards, which is one of these Article 3 standing cases about when a statute that gives you a cause of action supports standing, like Spokeo and TransUnion.
Dan: Oh, yeah.
Will: It was like the same issue before Spokeo and TransUnion had been decided. Argued November 28th, DIG’d [ Dan laughs] seven months later, June 28. Now it was the same term that the Affordable Care Act cases was decided. So, one theory is just basically they ran out of time. [crosstalk] [laughs] Well, I think theory is the case proved harder than they thought. Like we now know Justice Thomas turns out to have the liberal position on those cases and we may not know exactly like was that going on then? And you know, they're busy.
Dan: Yeah. I imagine that's frustrating that whoever was putting work into it. Clearly if it takes that long, something was happening behind the scenes.
Will: I mean I guess you could think of DIGs-- let me try my typology. I think there are three categories of DIGs. Your fault, our fault, nobody's fault. Like some DIGs are-- and the court, these might not be uncontested. The court sometimes has DIGs that are clearly of the form you sold us the cert petition on premise X, and now you get here and premise X is false, and we're mad at you and it's had times when that's more explicit rather than less. And maybe that's how they feel about Neal Kaytal or whatever. Sometimes you can sell the court on granting a case when you make it sound not at all fact bound by taking an aggressive legal position. Then you get to the court and you realize your aggressive legal position is hard to defend. [Dan laughs] But on the facts, you're a pretty good case. Do you want to go to retreat? And I mean that actually happens lots of the time. But sometimes you might pull—[crosstalk]
Dan: Sometimes you get away with it, right?
Will: Yeah, yeah, absolutely. But sometimes you don't. Then there's our fault, which is like, “We took this case, but actually it's really hard. We don't know what to do.” And like First American Financial v. Edwards might be a classic, like, our fault DIG. We just don't have it, we don't like it, whatever. And then there are some where there's just a development that in some cases might moot a case or like the abortion DIGs last term, Moyle and Idaho, the ones about EMTALA.
Dan: Yeah.
Will: At least like, the court tried to sell those as a mix of your fault DIGs because the party's positions changed and nobody's fault DIGs because the state court the legal developments that have changed. Even though it might really have been an our fault DIG.
Dan: Shouldn't it be called something else then if stuff changes in the world because it just like dismissed as improvidently granted, doesn't that suggest shouldn't have been granted in the first place? Shouldn't there be some disposition that's like, “Yes, it should have been granted, but stuff changed and now--?”
Will: You need to adverbdismissed as retrospectively improvidently granted [laughs] dismissed in hindsight.
Dan: Yeah.
Will: Yeah. I mean, I guess the improvidence also-- Well, yeah, I don't think anybody takes the ever that seriously. But I think you're right. I guess--
Dan: If anybody takes word seriously, it should be the Supreme Court of the United States.
Will: Sure. No-- Maybe the improvidence is failing to anticipate that this thing might happen. We thought the issues were teed up and now the developments cause us to realize we should have realized all along or something. But I mean, same thing. Well, a lot of these early subsequent developments, like if the petition was good and then the parties just changed their position, it's not that the court was improvident granting it. It's just [laughs] the parties have tried to get away with something.
Dan: Yeah. And then we have some shadow docket-y opinions. Kind of some interesting stuff on here. I don't know if any of these ones you were interested in talking about.
Will: Several. Like some of the recent-- Yeah.
Dan: Yeah. So, moving on from DIGs. Sorry.
Will: Yeah. So, in the December orders list, there were a couple of cases that triggered my academic interests. One was Parents Protecting Our Children v. Eau Claire Area School District. There are several different school cases that got me going. This is a cert petition out of the Seventh Circuit dealing with, it's like a parent’s rights challenge on the other side of Skrmetti where parents are upset that the school district has a policy of essentially not telling the parents if their children is transitioning. I think that violates their rights, but it raises a tough standing problem because the plaintiffs in the case can't say, “Oh, we have a child who's transitioning whose information is being kept from us.” And so at least on one theory, the Supreme Court's decision in Clapper v. Amnesty International helps show why there's no standing here. That was a 5-4 decision where Justice Alito with the majority have been into the court where people who said they were being subjected to warrantless wiretapping didn't have standing because they couldn't prove they were being subjected to warrantless wiretapping, even though the nature of the program was that it was secret and they wouldn't know if they were being subjected to warrantless wiretapping. And Justice Alito said, “Too bad. So sad.”
What's interesting is Justic Alito wrote a dissent for the denial cert complaining about how people are too skeptical of standing and how lower courts are leaning too hard into Clapper v. Amnesty International.
Dan: Yeah, he says, “I'm concerned that some federal courts are succumbing to the temptation to use the doctrine of Article 3 standing as a way of avoiding some particularly contentious constitutional questions. While it's important that federal courts heed the limits of their constitutional authority, it was equally important that they carry out their virtually unflagging obligation to exercise the jurisdiction given them.”
Will: What I like is this just crystallizes something that I think we've observed over the past couple terms, which is something of an ideological realignment about standing. When we were in law school and even when we were clerking, the well-known battle lines were that liberals wanted everybody to have standing and conservatives use standing to get rid of cases. And that was either good or bad, and people debate how much that was in good faith. But that was the well-known battle lines. And I still have that reflexive intuition. But outside of the TransUnion Spokeo cases about consumer protection statutes, it's really not clear that's the dynamic anymore. Over and over again, whether it's student loans or the First Amendment job owning case or mifepristone or just the criticisms of 303 creative like over and over again it seems like now we have standing has become more of the liberal position to get rid of cases.
And at least some conservatives want to open up standing and sometimes explicitly in a kind of like, “Well, liberals did this for a long time and so it's only fair that we get to do it now,” kind of argument. There were some Fifth Circuit judges who said things like that in some of these cases, and I just think that's an important and interesting development.
Dan: Yeah. Justice Alito seems to be leading the charge.
Will: Yeah.
Dan: I mean, I guess my intuition is that somebody should be able to have standing to sue for this. I mean, if the claim is that we will not know that this is happening, and that's bad. Saying only people who know that this is happening can sue doesn't work.
Will: Yeah. You might have had that intuition. You might be a principled person who also had that intuition about Clapper.
Dan: Yeah, that's fair. Although it seemed like part of the problem in Clapper was just that anyone in the world could potentially sue, depending on how far the reasoning goes.
Will: Yeah. Although you had lawyers who had reason to believe they were-- I mean, were having communications with people who was plausible were being surveilled, and indeed were taking costly precautions to try to avoid surveillance.
Dan: Yeah. Do you think that case was rightly decided?
Will: I guess I should have a strong view about that. I thought it was at the margins. It was plausible, but a little bit of a reach. And like all these cases, I think you get into the facts. There were a few things about the allegations that were a little bit. You kind of wish they were pleaded a little better, but then the court decides it in a slightly more categorical way. Actually, both these cases maybe have a little bit more of a ripeness flavor too in some ways. It feels like, “We just don't know yet if this is right.” But of course, the court has now collapsed ripeness into standing, has now said it's basically the same inquiry as standing. So, we've lost the ability to say it's too soon.
Dan: Yeah. I would be curious to see the court resolve those cases. I mean, again, I actually do think that those are more plausible claims than the one that was being advanced in Skrmetti. I also tend to think that this is not really part of the [unintelligible [00:51:31] jurisdiction. I tend to think that more politically palatable. I don't think that California has taken the position that these kind of policies are good. We know better than the parents. I don't think that's good politics, at least at the national level. I think saying, “We're the government and we know better than you how to raise your children.” Even sometimes that's true, but I'm not sure that politically that's a great strategy for the Dems.
Will: I don't really know anything about political strategy, but I trust you. [laughs]
Dan: I've never run for office. Don't plan to.
Will: Yeah. Strategically, it's interesting to see a substantive due process parents’ rights claims on the other side. Now, Skrmetti was being litigated mostly as an equal protection case rather than a parents’ rights case.
Dan: Yeah.
Will: But it is interesting to see parents’ rights claims being made and different sides of the culture wars.
Dan: Yeah. And there is a pending due process claim in Skrmetti. It's just not one that was reached below. It's not one that's before the court. I tend to also think that's a heavier lift because the court has said in the past you don't have a substantive due process right to those medical decisions generally.
Will: But similarly, a substantive due process right to have people not keep secrets from you just seems-- which is sort of what they're bringing here just does seem like a reach to me on the merits.
Dan: If you frame it that way. I mean, I think it's-- [crosstalk]
Will: I mean, I didn't. My understanding is lots of kids keep secrets from their parents.
Dan: Well, the children are not the defendants in this case. Do you understand?
Will: Sure. [chuckles] But even the counterpart into the secret. [laughs]
Dan: I mean, I do think that-- I don't know. I think there is a substantive due process right to have a school, to send your kid to a school in the language of instruction of your choosing. What else have we got in terms of parents’ substantive due process rights?
Will: I guess the Supreme Court has said there's a substantive due process right not to have grandparents visit-- court ordered grandparent visitation of your children if you object to it. But those are at least things where-- I get how you can get there. It just seems like the right to have the government provide information to you about your own children that your children are keeping from you. It seems like--
Dan: Yeah. Although there is a subtle difference between the right to have information and the right to not have the government obstruct your access to that information.
Will: Well, I take it the government is not stopping you from getting the information from your children if they're willing to give it to you. It's not like requiring the children to keep it secret.
Dan: No, but it's requiring people. I think these rules, at least the one in California, tries to override the decisions of local school officials and say, “You cannot share this information.”
Will: Right. But I take it the state action will be the same if your child's teachers started to keep a secret from you, they're a state actor too. So, wouldn't it be the same claim?
Dan: I want to think about that more. I don't want to freelance on that one. I guess there's a good answer in response to that.
Will: Yeah. Okay.
Dan: Okay. Did you see Roberson v. Texas? It's the statement of Justice Sotomayor about respecting the denial of an application for stay of execution and a cert petition for this capital prisoner in Texas, Leslie Roberson, who has been convicted of capital murder for supposedly murdering his chronically ill infant daughter. In the years since his conviction, many, many people have come to believe that he's innocent and that this rests on extremely shoddy science. There's spate of these shaken baby cases where experts came in and said this baby was clearly shaken and murdered and that we now believe that it was just not credible and that these were not homicides at all. These were just children that died of other causes. There's a lot of reason to think that this is one such case.
Texas has thus far been totally unwilling to reconsider this guy's conviction. And so, he filed an application for stay and a cert petition. Justice Sotomayor spends a lot of time talking about the facts and how troubling they are and then says, “Well, here's the problem. There's no federal claim here.” And then she says, “Under these circumstances, a stay permitting examination of Roberson's credible claims of actual innocence is imperative. Yet this court is unable to grant it.” That means only one avenue for relief remains open, an executive reprieve in Texas. Blah, blah, blah. Basically, she uses this, she says, “An executive reprieve of 30 days would provide the Texas Board of Pardons and Paroles with an opportunity to reconsider the evidence of Robertson's actual innocence. That could prevent a miscarriage of justice from occurring, executing a man who has raised credible evidence of actual innocence.”
So, it was interesting. I mean, I agree with a lot of her concerns here. It was an interesting use of the statement respecting denial to say, “Yes, I agree, there's nothing we can do here.”
Will: Like?
Dan: There's no federal claim here that makes sense. And yet I'm going to tell the executive, “Please take a look at this.”
Will: Yeah, some people are against that kind of thing. I'm not against that kind of thing. Why is there no federal claim here?
Dan: So, I think it is conceivable maybe there would be an actual innocence claim. The court has never resolved whether there are freestanding actual innocence claims. I think that here she tells us his only federal challenge was to the Texas Court of Criminal Appeals practice of issuing boilerplate opinions, dismissing subsequent habeas petitions for purported failure to apply Texas's procedural requirements in habeas cases. So, he may have been able to come up with a better federal claim, maybe a freestanding actual innocence claim. The court has never said those are available. The court has never conclusively said they're not available. Probably this court would say, “They're not available if it had to decide the issue, but here it seems like he did not even make that argument.
Will: Yeah, okay, that makes sense. At first, I thought she was maybe disavowing the idea of freestanding actual innocence claim, which would be surprising.
Dan: Yeah, I don't think so.
Will: I guess he could now bring an IAC claim for his lawyer's failure to bring an actual innocence claim. [laughs]
Dan: No, he couldn't.
Will: Because it's postconviction relief and you can't bring-- [crosstalk]
Dan: Yeah. No underlying right to counsel. You have no right to counsel in-- not even just whether it's postconviction, you have no right to counsel in cert proceedings generally.
Will: But he also didn't bring one below.
Dan: Yeah, but also, it's postconviction, so.
Will: Yeah.
Dan: That wouldn't work.
Will: Yeah. Okay.
Dan: So, it's doubly-- Yeah. I don't know. It's not a good situation. And I think that the executive reprieve seems highly unlikely based on what I know about Texas.
Will: I feel like, if you wanted to actually get executive reprieve, I feel like this would have been a much stronger dissent if she could have found another member of the court to join in with her on it. If you imagine--
Dan: If she had Justice Jackson that would have kept-- [crosstalk]
Will: Justice Gorsuch. I was thinking Justice Gorsuch.
Dan: Yeah.
Will: One of the other, more liberal members of the court, who could say, “Look, I agree there's no claim here, but we did. It seems to us something has gone awry here but maybe he doesn't agree, or maybe he just doesn't think it's his place to tell the governor of Texas what to do.
Dan: Okay, I guess we're fast running out of any prospect of talking about Glossip. Maybe we'll record again soon to talk about that one. Any of the other ones? You mentioned briefly the other parent case, Boston Parent Coalition for Academic Excellence Corp, The School Committee was that because you were thinking about saying something about that one or just because you were misreading.
Will: I was just saying the school's confused. Although this is a perfectly interesting case about the application of Students for Fair Admissions to selective high school admissions, but-- [crosstalk]
Dan: Which is something the court has previously declined to weigh in on, coming out of Thomas Jefferson. I think we probably talked about this one on the show last season.
Will: Yes. The other case I was going to flag was Wilson v. Hawaii, which is this criminal prosecution out of Hawaii for somebody who was carrying an unlicensed firearm in Hawaii. And the Justice Thomas, Justice Alito and Justice Gorsuch all write separately respecting the denial of certiorari. To address these kind of really interesting question about how to actually think about the procedures of Bruen claims arising in the context of criminal prosecution, like Hawaii's licensing regime is like New York's in that almost nobody could get a license. But the defendant didn't try and fail to get a license. He writes his own claim. We would think about that in terms of exhaustion, I think, and we'd either say he needs to exhaust or doesn't need to exhaust because it's futile. But in a criminal prosecution, how do we think about it? Which is, I think, a very interesting question.
I am working on an article on this with my Second Amendment coauthor Robert Leider, and we're inclined to say actually that a lot of the current assumptions about facial challenges and things like that we correctly apply in the civil litigation probably don't apply to criminal litigation, which is potentially irrelevant to--
Dan: So, which way does that cut? You should be able to make these claims?
Will: I'm not sure it matters for Wilson's case specifically, although I need to see more about it. But in general, when the defendant is trying to dismiss the prosecution against them, they shouldn't have the same burden of showing that the statute is unconstitutional as applied to everybody. And in part, you need to look at that the government actually has the burden of indicting and proving the facts necessary to make the statute constitutional in your case. So, for instance, if you have a statute, if it turns out that the felony possession statute is unconstitutional as applied to nonviolent felonies, but constitutional as applied to violent felonies, for instance, that then when the government wants to bring felony possession cases, it should have to prove kind of like a jurisdictional element that the offense is one that it's allowed to criminalize.
Dan: So, this came up-- I don't know if you have encountered this issue. There are people that have been convicted under old sodomy laws, but they were convicted of stuff that was unquestionably not constitutionally protected. They were convicted of the sodomy law but of sex act involving a child.
Will: Yeah.
Dan: But I mean, at trial, all that needed to be proven was just the mere fact of the sodomy violation. And those people have raised claims based on Lawrence, right?
Will: Yeah.
Dan: And those claims, I think, have pretty uniformly been rejected, at least the ones that I've seen. And so, in that situation, I mean, does your view suggest that the government has to prove, something like this is-- the other person is not a consenting adult or something?
Will: Yes. I mean, so in those cases, we could bracket maybe habeas is going to be at a third wrinkle, because on postconviction relief, the conviction is presumed valid and so on.
Dan: Yeah, but just put that to one side.
Will: But if you imagine somebody's being prosecuted now under these sodomy laws are still in the books, somebody's being prosecuted today for child abuse, I think the government, to bring the prosecution, would have to allege in the indictment and prove to the jury the facts necessary to make the conduct unprotected.
Dan: And you think that should be the government's burden? What if it's a statute that we think is not the sodomy statute? Let's change it. But a statute that we do think is constitutional in 95% of its applications or 99%, but there's a small sliver of people for whom it's unconstitutional? You think that it's always the government's burden to show that this person is not in that small sliver of people?
Will: The article's not written yet, so there are some interesting questions about defenses versus constitutionally required elements sometimes. And so, depends on how you tweak the hypo, exactly. But if you imagine-- the point is that the statute as written can't constitutionally be applied unless we know something else, like some additional fact, like Lopez. So, almost all guns found near schools have at some point moved to interstate commerce. And so, it can be reached under the government's commerce power. But the government did not allege and prove that Lopez's gun had traveled interstate commerce. And so, the Supreme Court set aside his conviction. Didn't really explain why they're doing what they're doing. I'm not sure they really thought it through. But in our view, that would be correct. The government has to indict and prove the jurisdictional element.
Dan: But in your view, like, I mean, isn't the point that Congress actually had to make a statute here?
Will: Well. I'm not sure about that. And that needs to be worked out too. So that would be the easiest case if Congress actually-- [crosstalk]
Dan: If the point is that the problem is that the statute is beyond Congress's power because Congress has tried to regulate something, it doesn't have authority over that maybe there's other statutes that would be appropriate. It seems like you have to look at the law and say, “Is this law a valid regulation of commerce?”
Will: Well, but under the normally correct first principles of severability, you don't ask in the abstract, is the law constitutional? You ask, is the action before the court, the constitutional has the enforcement of this law against this person been within Congress's powers? So, the fact that the law in some other case would be on Congress's powers doesn't mean that it's facially unconstitutional.
Will: Yeah. Although it's kind of weird though, to say that if the law is just possession of a gun, even if you can imagine some hypothetical different law that was like possession of a gun within 3,000ft of a federal building. And you're like, “Well, the person was within 3,000ft of a federal building. And so, Congress maybe could have regulated that.” That shouldn't save the prosecution, right?
Dan: Well, but now imagine that the prosecution has indicted and proved that extra element. I mean, so if the statute had an extra clause that said, “By the way, the statute can only be enforced if it's within Congress's enumerated powers,” that would make it okay. The government would have to prove the extra thing that it was within Congress's enumerated powers. But adding that sentence to the statute would make it okay. I still think it's a little weird to just say prosecutors can choose to make up elements that would make a regulation of commerce by Congress constitutional, rather than having Congress have to do it in the statute. I don't know. It's interesting.
Will: The question is, to some extent, “Can the Constitution make up the elements?”
Dan: Yeah.
Will: Now you see exactly why it gets kind of tricky.
Dan: I don't know if I buy that, but maybe.
Will: Well, when I actually have this worked out, I will bring it back on the podcast for you to take aim at.
Dan: Okay. Well, we were going to talk some about Glossip. I had prepped that one a long time ago to talk about. It will remain prepped-ish. [laughs] Maybe to talk about in a future episode because my expiration date is arriving soon. I have to go pick up kids and so forth.
Will: We did not talk about Bouarfa v. Mayorkas-
Dan: Oh, Gosh. Yeah.
Will: -the one that court issued, that's okay.
Dan: I didn't have a ton to say about that one.
Will: You were running out the clock and I could tell.
Dan: No, no, I actually forgotten-- I didn't even mention it before because I forgot we were going to talk about it. I will say it is the first real merits opinion by Justice Jackson case argued in October, so got out very, very quickly, unanimous. It's a ruling against the petitioner, who is an immigrant, who is trying to challenge, a determination that he is not going to get a visa because he was found to have previously been involved in a sham marriage for immigration reasons. And it's just a debate about, is this the discretionary decision that the Secretary of Homeland Security gets to make that is not reviewable, or is it the decision that's nondiscretionary, that is reviewable? Now everybody seems to agree that this decision could be reviewable. The substance of the decision could be reviewable later if he files different petition. And so, it's sort of a question about whether this is reviewable now.
It was one of these cases listening to the argument and reading the opinion where it just, sometimes, you just think, is this the best way to do things? Couldn't we just have someone-- A lot of energy has been put into deciding this question of, “Is this within this particular jurisdictional provision or not?” Maybe it would just be simpler for everybody to just decide the question. Be like, “Was it a sham marriage or not?” Or to just have a body that could just clarify the rule.
Will: Yeah. Although the immigration system hears so many cases that I think the right question is not really about this case. The right question is about how do we want to allocate the resources of the many administrative law judges and courts of appeals judges who hear these cases. And that still doesn't mean this is the right way to allocate them.
Dan: Yeah, but I mean, you could also allocate it-- Sometimes I wonder, and this is something I'll probably come back to with some other cases that I listen to. Sometimes, I think that the way to decide these kinds of disputes is not backwards looking legal interpretation. But maybe it would better if like there was like a court of Congress that could just say, “Okay, here's the policy stakes, we understand why there's this like confusing gap in the law right now.” Let's just give you the answer.
Will: Yeah, could be.
Dan: Yeah, I don't think I'm going to say anything more about it. Did you have anything to say about it?
Will: No, it's fine.
Dan: I thought it was fine. Unanimous. Listening to the argument, I wasn't sure it was going to be a quickie unanimous decision. I thought that the petitioner's counsel did a good job trying hard to cast this decision as a nondiscretionary decision that would be subject to review, but I guess the court was not persuaded and decided to just get this one done quickly.
Will: Yeah, I wondered if this was a defensive unanimous opinion, like there could have been broader grounds which was written if there were not unanimous.
Dan: Yeah. That's possible.
Will: But we can save that for whenever we record. Again.
Dan: It will be sooner than-- I will say I can predict, you can predict it will be sooner than three months or whatever it was.
Will: Promises, promises.
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Dan: Thanks very much for listening and thank you for bearing with us on the long delay since our last episode. Please, as always, rate and review the show on the Apple Podcast app or wherever else you get your podcasts. Visit our website at dividedargument.com where we post transcripts of the episodes fairly soon after they come out. Go to store.dividedargument.com for T-shirts and other merchandise. You can send us an email pod@dividedargument.com and you can leave us a voicemail 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the listeners who have not yet deleted us from your podcast feeds. Spread the word. We're back.
Dan: And if there is an equally long delay between this and our next episode, we will not have any good excuse other than if we're dead or under arrest or Will has been seized by the new administration as a disloyal usurper.
Will: Oh, you think I have to worry about that?
Dan: Hmm, you know, anything's possible.
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