We revisit a story about Justice Scalia from last episode and then discuss recent allegations about Justice Thomas's financial disclosures, and Supreme Court ethics more broadly. We also briefly turn to two recent merits opinions -- Türkiye Halk Bankasi A.S. v. United States and Reed v. Goertz.
We revisit a story about Justice Scalia from last episode and then discuss recent allegations about Justice Thomas's financial disclosures, and Supreme Court ethics more broadly. We also briefly turn to two recent merits opinions -- Türkiye Halk Bankasi A.S. v. United States and Reed v. Goertz.
[Divided Argument theme]
Dan: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: Okay, Will, been of a little bit of gap, but not terrible since the last episode. Some updates. What have we got? One thing that we had last time was you expressed skepticism that there had ever been an event at which members of the Federalist Society chanted Justice Scalia's dissent in Morrison v. Olson. There's at least one media report counting for that. A piece by an interview with Amanda Hollis-Brusky, who's a political scientist who studies court, who reported being at a book event with Justice Scalia where the fanboys started chanting along with him as he read keyword language from his famous dissent in that case.
Will: Yes, there is that report, and I have no reason to believe that report is inaccurate although I'm still having a hard time envisioning what this looks like. I have a hard time envisioning how many lines it is, because I have read the Morrison v. Olson dissent more than a lot of people, and I am pretty far from the Justice Scalia fanboy thing. But without warning, how many lines could I get through from memory?
Dan: "This wolf comes as a wolf."
Will: Yeah, sure, I could do, "This wolf comes as a wolf." If it's really just that, when he got to that, a bunch of people said, "This wolf comes as a wolf," I'd buy that. If the claim is there were like five lines that the whole room had memorized somehow.
Dan: There's things where it's like someone starts reading something and everyone else takes their lead and is delayed by half a second. Like when people do the creed and church Catholic mass ceremonies, and people are following along. There's ways you could imagine that going.
Will: Yeah, I'd love to hear more about this, I guess, from people who were there.
Dan: That is what this suit is about, power. You got that one, right?
Will: Sure, I think I would get power.
Dan: Maybe he reads that key paragraph at the beginning of the opinion and then get to various parts, people say the "Wolf comes as a wolf" part.
Will: Anyway, the Federalist Society, being the closeted dark organization that it is, maintains in their website, an archive of virtually every official Federalist Society event at which various people spoke. I went through Antonin Scalia's Federalist Society contributor page to try to match this up to the news story. This is a report about a June 3rd, 2008, 05:30 PM event at the Marriott Wardman Park presented as an evening with Justice Scalia, where he was discussing his new book at the time, Making Your Case: The Art of Persuading Judges. I think that's the event in question. That's the one that lines up with the media reports. If we happen to have any listeners who, on June 3rd, 2008, were at the Marriott Wardman Park and you remember anything about it, I would love to hear any reports.
Dan: There apparently were many 20 something white males in their best suits and ties.
Will: Oh, yeah. The claim also that everybody was wearing their best suits and ties to a Federalist Society event--
Dan: That checks out.
Will: Oh, boy.
Dan: The suits and ties thing or the best suits and ties?
Will: The best suits and ties. Suit quality among young 20 something males.
Dan: You don't know what-- it's their best suits. I mean, they could all have crappy suits and, like-- well, their best suits, right?
Will: Well, obviously, the speaker does not know what their best suits are either. Fair enough. That was implying to me nice suits and ties, which--
Dan: No, that's a misreading. You're misreading text. Don't miss the text.
Will: I just think Men's Wearhouse level suits and ties. [chuckles]
Dan: is that what you were wearing to Scalia events in your 20s?
Will: Yes, definitely. I was not at this event, to be clear. I was still clerking in Utah.
Dan: If you'd known about it, you would have flown back in your second-best suit and tie.
Will: I didn't have a lot of money for that kind of thing.
Dan: The Federalist Society would have paid for it. They have all sorts of money for all sorts of things.
Will: They would not have paid to fly a court of appeals law clerk to Washington DC to go--
Dan: Not just any court of appeals law clerk. You were--
Will: I was just any court--[crosstalk]
Dan: You were just beginning your meteoric rise into the conservative firmament. But some people knew.
Will: Apparently. I was a late bloomer, Dan.
Dan: No, you were blooming early. You were blogging. You were one of the early bloggers.
Will: I ran for a board position on the Federalist Society in law school. I didn't make it.
Dan: You were pre-Josh Hawley. You were a year after Hawley?
Will: He was the year ahead of me, but Josh Hawley slate defeated.
Dan: You were not selected by Hawley to be the standard bearer.
Will: No.
Dan: That's something you can wear as a badge of honor, I think.
Will: Being worse at electoral politics than Josh Hawley? I think that's pretty well established.
Dan: [laughs] Being chosen as someone who doesn't reflect his values. Hasn't been super busy, then there's been some news. There's been a big contretemps about Justice Thomas and the kinds of things that he has disclosed and whether this has created some ethical problems for him. As is often the case, I think you were going to step in maybe and defend Justice Thomas. Let's maybe talk about what happened though.
Will: All right. As I understand, ProPublica, I think, launched a quite impressive investigation about Justice Thomas' behavior and in particular, his relationship with a guy named Harlan Crow. They claim that he's had a bunch of different relationships with Harlan Crow, that he should have disclosed on his various disclosure forms and did not.
Dan: Is there any doubt about the veracity of the allegations? I thought-- Well, I think it's more just about is this unethical? Was there a disclosure violation?
Will: Well, one set of allegations is about him taking a bunch of expensive trips with Harlan Crow. Staying at his various properties, going on international vacations with him, etc.
Dan: Private jet.
Will: I think flying on his private jet.
Dan: Or at least getting free tickets.
Will: I think to the Harlan Crow Library to swear in the circuit judge, Jim Ho. So, there's one set about that. There's a second allegation about Harlan Crow's purchase of a piece of property owned by Justice Thomas' mother in which Justice Thomas apparently has a one-third or one-sixth interest. I think some of the facts alleged on that second one are more confusing. For instance, did Justice Thomas get any of the proceeds from that sale, I think is alleged, but not actually probably true. But generally-- Yeah.
Dan: It was not just one property. It was like a bunch of properties. It was six properties.
Will: Well, the other properties, I don't think Justice Thomas owned-- Anyway, we can put that in the second bucket of property stuff. I think The Washington Post felt left out, so they also ran a story. I have no reason to doubt that Justice Thomas says he has an interest in some LLC that's owned by his wife, but actually, 10 years ago, the LLC disbanded and became a partnership. Or maybe it's the other way around. He says it's a partnership, but actually it's now an LLC of the same name.
Dan: Yeah.
Will: Okay. I think those are the three, right?
Dan: Do you want to go chronologically?
Will: The style of this reporting is so we get the facts, we get told about what he disclosed, and then we get usually claims in these stories with a mix of attributed and unattributed, ethics experts say these should have been disclosed, some of whom are-- we talked to eight ethics experts, two of whom we will quote, and the other six of who are unknown, who say this should have been disclosed. Now, when you then go try to pop open the federal statute, or worse, did this a couple of days ago, try to download the filing instructions for these forms, try to figure out what the rules really are, I don't know. It gets confusing, but that's the shape of it.
As to the travel, Justice Thomas issued a statement saying, "Yes, I engaged in this travel. According to the advice I received, this is not something that I had to disclose. It was under the personal friendship and personal hospitality exceptions. Those exceptions have now been clarified with new legislation or regulations going forward. And I'll comply with those new legislation regulations going forward." This is travel that also, I think, Justice Thomas had disclosed 20 years ago. This is a long-time friendship, and there was an LA Times story about it. After the LA Times story, he stopped disclosing. I assume this was something that's like in the borderlands of whether they have to disclose it or not. Once there was annoying press about it, he went to the office of the legal council of the Supreme Court or something and said, "Do I have to disclose this?" And they said, "Eh, could go either way." And so, he went--
Dan: I guess there's two things worth talking about. I mean, one is disclosure stuff. I don't really have a strong view on it. I'm not an expert on disclosure. There's a lot of stuff going on there, and I'm less concerned about that. I guess a more interesting thing is what we think about this from an ethical perspective. Not formal ethics, but like, "Is this good? Is this bad that this is happening? Should this make us uncomfortable?" The related thing about the purchase of the properties maybe seems particularly concerning to me. What seems to be going on here is there's a very, very rich person who is very, very conservative, donates a lot to Republican political causes, and who has befriended Justice Thomas and is doing a lot of things for him that cost money. That makes me a little uncomfortable.
Will: Does it make you feel better, I think Harlan Crow does say in some recent press statement that he's pro-choice and doesn't share Justice Thomas's political views.
Dan: Not necessarily. Do we think that he probably shares most of Justice Thomas' views more than not?
Will: Compared to what? I'm not sure. More than not, yes. I think they have more agreement than disagreement is my guess. Although who knows what they talk about. You and I agree about a lot of things, but we don't talk about that. Obviously, I don't love it in a sense that-- I guess my first [unintelligible 00:10:08] I feel about this the way I feel about the fact that Justice Thomas' wife maintains what I regard as a bunch of extremely irresponsible political positions and political activities. I worry that will be used against him and make him look bad in a way that he doesn't deserve. So, if I were in charge of everything, I don't know about that.
At the same time, it's confusing to me what exactly we're worried about. This is the broader question about what we make Justices disclose and don't disclose. We get obsessed about disclosing every stockholding in great detail. But the questions of, like, who do the Justices hire as law clerks and who do they talk to and what's their circle look like? Probably much more important, is much less regulated. Like the Alito-- who is Justice Alito having dinner with? Were those people planted there to work on him in some way? That at least seems more important in some ways, although that seems kind of weird too.
Dan: I think they both seem kind of important, right?
Will: Yeah. I think we should continue to know all the stocks they own, because if we don't, there's always the risk somebody's going to own a lot of stock and make some sort of irresponsible decision until we demand everything.
Dan: But also, it gives us assurance that they're not doing that. It's not necessarily that we believe that they're going to do it, that they're going to engage in self-dealing, but it's nice to be able to-- what matters is also just showing the public that-- giving the public some reason to be comfortable with what the court is doing, right?
Will: Sure. Yeah, right. I'm not against that, but it might be false comfort. I guess that's what I mean. On the one hand, we're worried about the Justices having all these political views that might be importing into the cases and that's thought to be the big threat to the court's legitimacy and the thing that we're constantly hearing the court is-- And on the other hand, we have all these rules about this other problem that really isn't a problem about the possibility that the Justices are worried about the state of their retirement accounts or something.
Dan: I mean, how do you know it's not a problem? Abe Fortas was taking sketchy payments, right?
Will: Maybe it's good. Maybe the disclosure we have is okay because it helps us make sure it's not a problem. But it's confusing to me how many detailed ethical rules we have about disclosing every financial transaction while we don't really know what to do about your politics.
Dan: I guess, but in the latter category, there's some hard questions about what we think what the line is. Is it okay for Justices to be friends with the President? Like, maybe. Not obviously, no. Everyone recognizes you shouldn't be ruling on a case that financially benefits you. You shouldn't do that.
Will: Look, if the Justices wanted to rule on some cases where they-- They in fact do. The Justices, if you own stock in the form of a mutual fund, you can rule on the case even though Apple makes up a nontrivial share of various index funds the Justices invest in, that's fine. If you own one share of Apple, so you should have less of an interest in Apple than you do in your mutual fund, then we say, "Oh, no, no, you can't do that." And that's fine, it's a formal rule. I like formal rules.
Dan: Yeah. With Apple, ruling for them benefits them, but it also may hurt some other companies, and it could all be a wash.
Will: Yeah. Although hurting the tech industry-- I just mean we don't even have disclosure. We don't demand disclosure about every time the Justices have a conversation with the President. Sorry, I don't want to belabor this point. I'm not against financial disclosure.
Dan: You just have a lot of faith that they're not self-dealing.
Will: No, it's more I have very little faith. I think it's odd that we don't-- in some ways, our disclosure requirements aren't higher. Why don't we make them in every case disclose what their political views are? Just not in the case, but the next year, for every case, you have to tell us which side you wanted to win on policy grounds, just so we know and so we can check. That would be far more useful than all the crap we make them do.
Dan: You do not want them to do that. The difference is everyone agrees that they shouldn't give themselves money. We have this total uncertainty about, are they acting politically? How do we know if they're acting politically? What is the appropriate role of ideology? There's no consensus there.
Will: Okay. All right, so the next step is everybody agrees that if you get money from somebody, you shouldn't be involved in that person's cases. I think everybody agrees Harlan Crow has no cases in front of the Supreme Court, does not indirectly have cases in front of the Supreme Court. That's why I don't know if it matters that he's pro-choice, but it's not clear what Harlan Crow's litigation program is. I think there's no question that Justice Thomas would have to recuse from all Harlan Crow type cases, but he's not.
Dan: How would you feel if every conservative Justice, as soon as they get on the court, get gifted $10 million by some mysterious conservative mega donor?
Will: No strings attached?
Dan: No strings attached formally, but that's just a thing that's known that happens.
Will: I mean, look, that might even better. The continuing relationship, the worry is that the Justice is going to do something to keep up the relationship or something if we just said, "We want you to be free from all influence, so here's $10 million," never have to worry about it again.
Dan: You don't think there's some notion that public servants should be paid by the public fisc and there shouldn't be other sources of wealth out there that are being made available to them. That makes me deeply uncomfortable.
Will: How do you feel about the fact that some Justices come to the court after being law firm partners and have more money than they ever need, and some don't? That also makes me comfortable.
Dan: That's not coming from an outside source. What if the Federalist Society, it was just in practice, that every Federalist Society member who joins the court gets a $10 million payout upon joining the court.
Will: I think that would be a very bad look.
Dan: Yeah, I'm glad [chuckles] you're willing to go that far. This might be another one of those situations where you just take a position that's super right line and arguably indefensible.
Will: It'll be better if they all got the $10 million, I think.
Dan: It would better if their payment going forward was whatever the salary set by Congress is. Now, I totally agree that we should probably pay public servants more. We should pay so that there's no temptation for people that don't come in with John Roberts' money to do other stuff. I don't mean just Supreme Court Justices, I mean like the President and-- We also don't want only independently wealthy people to be able to serve in these roles. I do think that there's this free-floating concern about just random private people coming in and just giving big gifts to Supreme Court Justices. Even if we can't say there's an explicit quid pro quo at all, something about it seems off.
Will: I agree. Somebody, I don't remember-- Most likely, [unintelligible [00:17:00] who said that this is not just a court problem. That Washington DC is just full of ways for people who have formerly more modest salaries to live as if they are rich. That ranges from having a staff that some people use for more personal tasks than others. Depending on what branch of government you're in, the President obviously gets a house to getting invited to all these fancy events like AOC and the Met Gala or whatever, getting the hobnob of celebrities. There's a whole range of that stuff. I don't love any of it.
But I think there's a tradeoff between three different things. There's a trade-off between what we think is the most just and fair system, one. What we think is the system that most creates legitimacy in the sociological sense that people will respect the court and think it's good, and what actually gives the Justices the best incentives not to misbehave. I think those three things don't all necessarily line up. I think that's why I think the $10 million cash on the barrel to every Justice upon appointment is actually great on prong three. It really does help free up any incentives to worry about money. But it feels wrong and looks wrong, so probably shouldn't do it. But I think we need to be honest about those tradeoffs. Like instead, we make the Justices do a book deal.
Dan: Which also actually has some concerns.
Will: Me too. No, I think the book deal basically is you become a Supreme Court Justice, you get a million dollars as long as you could write anything. You don't even have to write it. That's just the way Justices have of [unintelligible 00:18:33] their salary and one that we're not willing to stop. But I don't love it.
Dan: Yes, but there's also some possibly fishy stuff there, which is for some of these books, the Justices get advances that may not be justified by their projected sales. Justice Barrett got an extremely-- I think a $2 million advance.
Will: Right. Those advances are on the open market. I don't think anybody thinks that the Federalist Society was subsidizing the advance or something.
Dan: I don't know. I mean, not the Federalist Society, but wasn't her-- I'm trying to look this up now. I thought that her advance did not come from one of the-- I can't remember what the publishing house was. Do you remember?
Will: No.
Dan: There was this initial purchase, and then maybe it got acquired later. I don't know. But it is a way that fishy stuff could happen.
Will: It is. I just think it's just sort of built in. It's like you have celebrity book selling powers of Justice, especially if you're going to agree to go tour the country and sell the book in person. You can coauthor the books with your former clerks if you can't get the books--
Dan: Having your former clerks write the books.
Will: Co-authorship takes many forms, and we decided we don't want to have a rule that Justice can't write books. In fact, William Rehnquist's books were great, enjoyable, like very dry, common law history books. I read a lot of them in law school. But I don't love any of it. Do you think that if somebody did a similarly in-depth study of other Justices, we'd find things? Do you think Justice Sotomayor has rich friends?
Dan: I don't know. I think we might find something. I don't know.
Will: Do you think it'd be good to find out? Do we think it would be a good thing for whoever the conservative politico is to launch a similarly in-depth investigation?
Dan: Why wouldn't you?
Will: You just decide that this doesn't actually help advance anything we care about?
Dan: I don't know. I assume that right-wing media is going to work in that, don't you think?
Will: Yeah. I don't know. Are they right-wing media really who investigate things rather than just--
Dan: I'm not going to dignify that.
Will: Rather than just lie about things on the air.
Dan: Oh, yeah. Fox News, largest defamation settlement in history.
Will: Yeah. All right. In the fallout, the Senate is now potentially getting involved, right?
Dan: Yeah. Nothing's going to happen. There might be some hearings. He's not going to get impeached by the House.
Will: No, but I guess the two questions, two substantive things. One is, we've talked, I think, a little before about this. We have heard various leaks that the Supreme Court was in active conversations about whether they need moral code of conduct, but then they don't know what it would say or they don't agree what it would say. And I'm curious whether we think this--
Dan: They had a conversation and they decided they didn't.
Will: Well, does this help or hurt that? Does this spur another conversation or is this kind of the thing that was the problem? And then, I think Senator Durbin, the chair of the Senate Judiciary Committee, specifically invited Chief Justice Roberts or another Justice whom he designates to appear at a hearing on May 2nd to talk about code of conducts. I don't even know how this works. Do you think that's kind of the thing, as the court, you feel some obligation to say yes to, or is this the kind of thing where you just could say, "I don't know"?
Dan: They do sometimes testify before Congress when they're making a case for their budget. So, it's not wholly foreign to them to come. I don't know.
Will: Yeah. No prediction.
Dan: Yeah.
Will: I saw the suggestion online that I liked that the chief audit designated Justice Breyer to go because he loves this kind of thing and he's a little more removed, which actually might make him more appropriate for him to talk about it.
Dan: Yeah. He could also just show up on his own.
Will: Yeah, that sounds fun.
Dan: He doesn't have that much to do. I'm told he's spending a lot of time hanging out in the Harvard Law School faculty lunchroom and talking to folks.
Will: I didn't see him when I was there, unfortunately.
Dan: No. Maybe he was boycotting you.
Will: Yeah. I was called to the Scalia lecture.
Dan: So, I mean, what about the house sale?
Will: I think Justice Thomas has said he should have disclosed the house sale. He mistakenly thought he didn't have to disclose the house sale because he didn't make any money on it. The form talks about real estate transactions worth X thousand dollars. And there was some confusion whether that was net or gross, but I think he's going to go amend his-- I did also wonder-- this is another one that's funny about the rules. As I understand the rules, if a rich person gives millions of dollars to your mother, there's no requirement that you disclose that at all. That’s as far as I can tell. It's only money that you get.
Dan: Again, that doesn't mean that's right.
Will: But in terms of the violation, it's only because Justice Thomas has some residual interest as the heir of the--
Dan: Let's not talk about the disclosure violation. I don't care as much about that just because those rules may be over or underinclusive. I care about the substance of the thing and whether we think it's okay. Think it's good, think it's desirable.
Will: Isn't this just like somebody bankrolling the RBG opera? It's a way for rich people spend a lot of money to honor the--
Dan: Yeah. It's not money going to the person or going to their family members.
Will: I think Justice Ginsburg's family members were involved in the opera.
Dan: Yeah, I don't know the details of it.
Will: But the stated reason for buying these things, he wants to turn them into some sort of Justice Thomas family museum. Again, this is part of the like--
Dan: How would you feel about it if you bought them for like 20 times the market value?
Will: That seems the same as the other stuff to me.
Dan: Really? I mean, that's a way to give someone a gift. [crosstalk]
Will: He's allowed to just give him a gift. I mean, it has to be disclosed but if Harlan Crow wants to give Justice Thomas $20 million as a birthday gift, he can. There's no rule against that.
Dan: The question is, are we okay with that?
Will: Right. But there's nothing different by doing it through buying his property for an inflated price, right?
Dan: Well, it can be concealed. Maybe arguably, sometimes these are ways in which--
Will: I think it's actually harder to conceal because ProPublica will dig up the Fulton County deeds of 2014 and prove it happened.
Dan: Maybe you can conceal the tax consequences of giving a gift more-- There's a lot of--
Will: Yeah. Can I ask you two questions? Do you feel differently if the gifts come from family members or if they come from friends you had before you were on the court? Like, if Justice Kavanaugh's parents paid off his credit card bills or student loans or something, does that bother you?
Dan: No.
Will: What if it's not his parents, but like a family friend he grew up with?
Dan: I guess it depends a little bit on whether I think this is because the person is on the Supreme Court. If these people would just not give you $10 million, you'd not even think about it. If you went and worked as a public defender and then you become a Supreme Court Justice, and they're like, "Oh, let me give you a bunch of money," that seems-- I don’t know.
Will: For some of the stuff for Harlan Crow, I don't know, do we care at the fancy resort where they're staying, it's not just Justice Thomas, it's also other people who are not Supreme Court Justices, like Leonard Leo and Mark [unintelligible 00:25:24] and I don't know who else. Does that make us feel better? Because it's not just because you're Supreme Court Justice. It's because you're part of this intellectual circle.
Dan: Yeah. I'm not sure. I'm not sure it should matter. Would he have been invited if he weren't a judge?
Will: I don't know.
Dan: Probably not.
Will: I don't know.
Dan: Probably not. Again, we could still say you shouldn't be getting stuff like this. Once you become a judge, you shouldn't be getting these kinds of--
Will: I think if we could have a rule that you shouldn't get anything as a Justice that you wouldn't get if you weren't a Justice. Nobody should buy your book. They wouldn't buy it if you weren't a Justice. Nobody should invite you to teach or give a lecture, they wouldn't have invited you before.
Dan: We could have rules like that. We could say, "You don't get outside income."
Will: Well, it's not just the income, because it's like reimbursements. But if you just think about how we'd like-- I think I would like it if Harvard Law School only invited people to speak at Harvard Law School on their intellectual merits and without regard to whether they were judges or not. That would be a good norm for Harvard Law School to have and for the court to enforce. Not sure how we do that, but that seems good. But it seems so far from where we are.
Dan: Yeah, I guess basically the form of the argument though is there's this huge, slippery slope in terms of access, influence, goodies and that we can't capture all of it unless we have a rule that Justices must be sequestered, and we give them a dorm. And they live in the dorm, and their movements are restricted between the dorm and the court. And that's it.
Will: We can have rules, but you just told me you didn't care about the rules. You wanted to talk about how bothered we should be with this, which is a different question.
Dan: Yes, but you're saying, well-- but your response is like, "Oh, there's a whole bunch of other things that maybe are on the spectrum of being bothersome and can't do anything about it."
Will: This is not obviously worse to me than all the ways in which academic institutions try to shower the Justices with various kinds of opportunities, praise, influence, money, etc. I guess that's-- My proposal would be, if we're going to try to crack down on this, the law schools should be first. We should lead the way, and then I think--
Dan: What would that look like? You're not allowed to invite them to speak?
Will: You can invite them to speak, but only if you would have invited them to speak if they weren't a Justice, and you have to sign an affidavit saying you would have.
Dan: Why? Why is being invited to speak?
Will: Well, the invitation to speak is valuable. We think that' --
Dan: Is it? Most of them, they get invited to speak all the time, and they turn most of them down because they're paying. I don't think it's that valuable.
Will: Yeah, I bet they [crosstalk] do some of them.
Dan: Yeah, but I don't think it's because it's valuable.
Will: You don't think they pick the ones that they enjoy or get the prestige or enjoyment from?
Dan: Maybe they want-- yeah. [crosstalk]
Will: Okay, what about the summer stuff? What about when they go teach at various--
Dan: Those make me a little uncomfortable.
Will: Okay.
Dan: They go get paid to go live in Germany and Austria and Malta, any number of other places and teach some fake class, and yeah, that makes me uncomfortable.
Will: You asked what the rule would look like. Sure, we can make the rule say you can only go to places during the school year, and you can only go for one night. Or we could be more detailed about it, I guess. But I do think there's still a strange economy of prestige there that I don't love. It makes me uncomfortable.
Dan: Yeah.
Will: I was just talking to a judge who'll remain nameless, actually, who was not a judge, who goes on the public speaking circuit as much as a lot of other judges and who observed that it made him uncomfortable, in part because he's like, "I've got a lot of work to do." [laughs] I'm like, "What are they all doing?"
Dan: There are some circuits that have less work.
Will: Yeah. Within any given circuit, I think so. I don't love any of it. I guess maybe that's part of the problem.
Dan: Yeah. I think basically your response to this is pointing me at a bunch of other stuff and distracting me.
Will: I don't love it, but it's not a big deal. That's my view.
Dan: Makes me uncomfortable. I feel like this is a little further along on a spectrum than some of the other stuff. They have kind of individual mega donors, kind of like gifting things and have it be not disclosed, I think we should probably err on the side of having it be disclosed.
Will: Wow. It's sure disclosed now.
Dan: Yeah, it's disclosed now, but who knows what else hasn't been disclosed? I don't know what the deal is with the income from the company. My guess is that's just some oversight, not some complicated fraud.
Will: Yeah. I hate this kind of paperwork, as you know.
Dan: You would do it though. You would follow the rules if you became a judge.
Will: I would hire somebody else to fill out my forms, and I would trust them.
Dan: You wouldn't be able to afford it because nobody would have given you the gift.
Will: Or wouldn't disclose it.
[chuckles]
Dan: They would give you the gift of doing the accounting work for you.
Will: This would be a serious reason [unintelligible 00:30:13] to not become a judge would be the paperwork.
Dan: Yeah. The related reason would be the limitations on outside income and stuff.
Will: Yeah. I don't care that much. I just don't want the paperwork.
Dan: You're just about the intellectual feast aspect. You don't care about material things.
Will: I'm a simple man, Dan.
Dan: I'm uncomfortable with it. I would like to have a more concrete answer on some of the disclosure stuff. I don't think anything's going to come of it. I do think there is this broader concern about these kinds of rich people that are trying to curry favor with the Justices. Yeah, it's not directly tied to any one case necessarily, but I think if you know you're a part of this conservative community, that you get all these goodies, I don't know. It might affect who would become a judge. Certainly, if you knew you got a $10 million payout, you might be more willing to be a district judge. Like, let's say you got a $10 million payout to be a district judge, that's going to influence who's going to do it. A lot of stuff there, uncomfortable about it.
Will: Yeah. To be clear, we have no evidence that this is like a program that other Justices get. They all have their own Harlan Crows.
Dan: Yeah.
Will: Now, maybe you'll say they secretly do and they're not disclosed or something, but I assume ProPublica will tell us.
Dan: Okay. One other thing to note. There's shadow docket stuff happening with litigation about mifepristone. District court struck that down, said that the FDA has violated the law in approving it, stuff like that. That's working its way up to the Supreme Court. Justice Alito has granted a couple of administrative stays, putting on hold the lower court rulings while the court figures it out. It was one and then it was extended by a couple of days. I don't know what's happening. It may get resolved by the time this episode comes out. For that reason, we probably don't need to dig into it.
Will: I think at the time we set this recording session, I was sure they would have issued a ruling by now. This is further proof that they are aware of our schedule and messing with us.
Dan: They've extended it till midnight, basically 11:59 PM on Friday, which suggests to me they might get it out after the news cycle has closed. So, we'll see. It probably means there's some disagreement and dissent. We'll see.
Will: Can I take a victory half lap?
Dan: Okay, let me try to see if you succeed in doing that. Let's do it.
Will: A couple of episodes ago, we talked about this case, Halkbank, about the Foreign Sovereign Immunities Act and whether or not it barred criminal prosecutions of foreign sovereigns. I think I confidently predicted on the episode that this was a 9-0 case, and it was, the other way.
Dan: 9-0 in the outcome. Yeah, the other way.
Will: Right on the vote, wrong on the--
Dan: Basically, you had read a provision in the Foreign Sovereign Immunities Act, which is a provision that was designed to deal with when can you sue foreign states and their instrumentalities in a federal court. You had read a provision there as being very explicit and broad and just basically barring all actions unless they fit into certain exceptions.
Will: Yes.
Dan: And I agreed that it was not an implausible textual argument. Just looking at the plain words, that was a decent argument.
Will: You said more than not implausible.
Dan: It was reasonably good. But we've got a bunch of Justices who think you're wrong.
Will: Yeah. Well, two things. There was a second issue that we didn't talk about, which was basically, is there an exception to that rule under the commercial activity exception?
Dan: Yeah, under the Foreign Sovereign Immunities Act--
Will: Which we didn't spend a bunch of time on, but in fact there was a decent reason to think there was an exception.
Dan: Yeah. So, two of the Justices think that.
Will: Justice Gorsuch writes an opinion in this case, joined by Justice Alito, which I think is exactly right, that says the statute bars criminal jurisdiction, there is an exception. The statute bars criminal jurisdiction, but there's an exception that also applies to criminal jurisdiction, so the case can go forward. But to be clear, in general, the Foreign Sovereign Immunities Act applies to criminal prosecutions. That seems exactly right to me. That's the textualist view, thorough, hits all the issues we didn't talk about. Seems exactly right. The only problem is that only Justice Gorsuch and Justice Alito think it's right.
Dan: Yeah. The rest of the court, in an opinion by Justice Kavanaugh, rejects your textual reading and says Foreign Sovereign Immunities Act doesn't bar criminal cases. He says, "Look at the whole thing." And this is really about civil actions.
Will: Why is it about civil actions? Well, we should read Foreign Sovereign Immunities Act 1604 in pari materia with 1330, the grant of subject matter jurisdiction in civil actions. Why should we read it in pari materia with that rather than the grant of such matter jurisdiction in civil and criminal actions? Unexplained.
Only thing that's interesting about this is so one of the consequentialist arguments lurking in the background which we talked about is states. If the Foreign Sovereign Immunities Act doesn't apply, then it's not clear anything would stop state courts from bringing criminal proceedings, which is not something they've traditionally done.
Dan: Yeah. Unless there's like a common law restriction because that's one thing--
Will: Well, yeah.
Dan: --the court leaves open here is like whether there's some common law immunity that would apply.
Will: The court says, first, that's a consequentialist argument, so who cares because we just follow the text. Ha-ha, that's cute. Second, it's not clear it's true because who knows? Maybe there's a common law immunity or maybe our Foreign Affairs preemption doctrine will get in the way. And if not, then Congress will fix it. So, I don't know. I don't find that satisfying, but they obviously don't care what I think.
Dan: We've got this other case, Reed v. Goertz, which I think we both agreed is interesting but extremely confusing and not totally sure what to do with it. Basically, question is when does a certain claim that someone is bringing in federal court under section 1983, which is the statute that lets you sue state officials and so forth for violations of constitutional rights, when does that claim accrue and thus start the two-year statute of limitations and particularly when you have a challenge to-- well, I don't want to say what the challenge is to because that doesn't that presuppose the question?
When you have a case that's about when can a state prisoner get DNA testing of certain kinds of pieces of evidence, and you have state rules that impose limits on that, and the defendant wants to challenge something about that in terms of constitutional violation. But exactly what that something is, that's what the key question in the case turns on.
Will: Yeah, this is one of those cases with a huge gap between the things that a layperson would think were important noteworthy about this case and the things that the courts care about. Rodney Reed is a death row inmate who a lot of people believe might be innocent, and there's a whole discourse of movement about that. And that's a big deal. This case is about when the statute of limitations begins to run on a potential federal claim that he might have to challenge the way states are treating his ability to get certain testing.
Dan: We have no idea whether he actually would win on the merits of that procedural claim. We have no idea. It's like many steps away from the substance of the thing.
Will: We don't even know very much about how those claims work because there's a Supreme Court case from 2009, the term I clerked, district attorney's office for the Third Judicial District v Osborne, where the court tries to walk through the narrow circumstances in which the due process clause allows a federal court to second guess state court's procedures here but there's a lot of debate about how to read that and how to apply it. And then we have this unknown claim and [chuckles] then we ask, when can you sue for it? Which might seem like a straightforward question but turns out to be a very confusing question.
Dan: Yeah. The court largely glosses over hard issues. The court's opinion is six pages.
Will: Yeah. I'm tempted to analogize this case opinion to Cruz v. Arizona, but I'm not sure whether I'm going to analogize it to early Cruz or late Cruz. In the sense that in a way, the majority's opinion seems very straightforward, sensible and reasonable. But then, you start to poke at it and there are a lot of weird questions about how this really works. I'm not sure those questions lack good answers, but I remain pretty confused.
So, in a way, here's the case for this being straightforward, which is the basic question is, does your statute of limitations in federal court run, at some early point when they tell you, "We're not going to let you test the DNA evidence"? Or only later, when you've worked your way through the state judicial system and tried to get the evidence? There's a pretty longstanding principle of procedural due process that your claim is not ripe, your due process has not been denied until you've given the state a chance to provide it. And so, you go through the whole state system before you can say the state has denied you due process.
It sort of starts as a quasi-exhaustion requirement. I think one of the early cases is about like a prisoner who had some property seized by the prison, Parratt v. Taylor, said that deprived him of due process. The court said, "Well, give the state a chance. We [unintelligible 00:39:34] deprived of due process if they won't pay you for it. We've seen versions of that in the Takings context and so on.
If that's the framing, then Osborne is quite clear that one of the things you have to do is go to the state process. Osborne, somebody filed a student federal court today at DNA testing. Part of what the court said is, "Look, the state has procedures for this. We don't know what will happen if you use them. You might get it, you might not. But surely you should at least start there." So, on that framing, what the court says makes perfect sense. Like, it wouldn't make sense to ask you to sue in federal court before you'd ask state court.
Dan: Yeah, that seems to make sense. Then, we get this super long dissent from Justice Thomas. Long relative to what the majority is. It's a 20-page opinion, which says there's a bunch of problems here. Problems, he sees as two sides of the same coin, like solving one creates a problem with the other, one of which is standing and the other of which is jurisdiction. Taking jurisdiction first, he says this is a Rooker-Feldman problem. Rooker-Feldman is a doctrine that says you can't go to district court to appeal a state court ruling. District courts don't have jurisdiction over that. You'd have to go-- the only way to do that is to file cert with the Supreme Court from the state court ruling. You don't get to then appeal it.
Will: That doctrine has produced a lot of mystery and general overclaiming about what that means because the court has said-- to be clear, it's not that every time something has already been litigated in state court, you cannot go to federal court. There are other doctrines like collateral estoppel and preclusion and all that deal with when you can relitigate things. The court says this is just about formally, your injury can't be the state court decision itself, or you can't specifically try to appeal the state court decision to the lower court.
Now, this case is a little closer to that line, in part because the very premise of the opinion is that your injury wasn't complete until the state courts ruled. So, it does seem like the state court's rulings are part of the thing you're challenging here. But they're also only part of the thing they're challenging here. He'd be perfectly happy if instead of the state courts changing their mind, somebody would just let him test the evidence.
Dan: Yeah. Unlike arguably, what the state courts did is apply the law, right?
Will: Arguably. As I understand, this is part of what's weird about this case is-- again, this is all taking place in the shadow of the mystery of, what is the actual claim here? I skimmed his brief, and as I understand his complaint, his story is, "As a matter of state law, I should have been entitled to this evidence. But the state courts cooked up some procedural requirements that are unfair and don't make sense." Like, if the police have not done a good job maintaining a chain of custody evidence, then you can't test it. That's not fair. Or if you previously were trying to prove your innocence using other evidence, you can't use this evidence, you can't get this evidence. He says those are both unfair and not in the statute, and so you shouldn't be able to do that.
Dan: Yeah. That does sound a lot more-- this brings us back to Cruz, brings us back to that Bouie case, is Bouie v. South Carolina, I think.
Will: Columbia.
Dan: Yeah, where you're saying that the state court violated due process by making this thing up that's not in the law.
Will: Right. Part of what the state and its brief and what Justice Thomas dissent do is try to break this down into a fair question in a federal lawsuit is, who are you suing for what? The defendant here is the prosecutor. The prosecutor's position is like, "This has nothing to do with me. [chuckles] You went to the courts. You don't like what they said, that's a beef between you and the courts. Leave me out of it. I have nothing to do with this." It's maybe heightened by the fact that for whatever reason, Reed has asked for a declaratory judgment rather than an injunction. So, the prosecutor is like, "Okay, you're going to declare something about how our law works has nothing to do with me. I'm not doing anything." So, it's not even like there's going to be an injunction in the federal lawsuit that will tell the prosecutor turn over the evidence.
On the other hand, the Parratt approach to due process, which is also not crazy, is like, due process applies to the state. There are three different state entities, the prosecutor, legislature, and the courts, all of whom have some part in providing due process here and we let them sort out whether they provide due process, and then we step in and say whether they did a good job or not. That also makes sense to me. In which case you don't want to slice and dice as much. Like, what does the statute say versus what does the court say versus what's the prosecutor's attitude?
Dan: Yeah. I don't know. I read through this, and my takeaway was, "This is super complicated," and I would really want to spend a lot more time probably even than you did, trying to figure out exactly what was being asked for here. Do you have a quick instinct as to who's right? The other thing I was wondering is, why is there not a good argument that whenever it accrues, this should at least be told in terms of the statute of limitations question? There should be equitable tolling or something?
Will: Well, I think if it accrues earlier, then there's no point in tolling.
Dan: It doesn't accrue when it starts, and then so if there's tolling, then you have more time, right?
Will: Yeah, but if a state officer-- a normal constitutional violation, the police officer does something not supposed to do that violate your rights, you might well just sue right away. It wouldn't necessarily toll it while you also sue in state court.
Dan: Try to get-- they had some administrative process or something.
Will: Yeah. I don't know.
Dan: That doesn't solve the Rooker-Feldman thing.
Will: [unintelligible 00:45:15] exhaustion. My instinct is that the majority shouldn't have to work through this. My instinct is we don't really know how these claims work, and we're not quite sure whether this hypothetical claim you're going to bring that it would be bad if to figure out the answer to this question, you had to first decide in detail how this hypothetical claim that we're still working out works. I'm sympathetic to the majority's cleaner approach of just saying, "Our precedents say you have to let the state court answer it first, and so it's not ripe until you do, and we'll sort everything out later."
That's my instinct. But I do think it's quite possible that, as in our Cruz episode, a week later, I'm going to come back and tell you that actually Justice Thomas is the best fed court scholar on the bench and that--
Dan: I do want to come back to this one next week. Given that you have nine minutes for you have to leave anyways, I want to take another go at this one.
Will: So, this one's tough. This one's tough.
Dan: Why does the court write such a short opinion?
Will: Well, [chuckles] I do think the less said, the better. That's a bad sign, right?
Dan: Yeah.
Will: Especially if you're not sure how these claims work, you're maybe not totally sure these claims should be a thing. To answer all those questions requires you to answer those hard questions in a case that they're not really presented and may not really come up. That was the approach that the court's taken this area, is to say-- to add to that, the ultimate elephant in the room is suppose you can prove you're innocent, through later discovered evidence, does that mean that the execution has to stop? The court has never said the answer is yes, and some Justices have said the answer is no. The court's approach to that has always been to say, "Well--"
Dan: [crosstalk] -later.
Will: "We're not sure, but let's not answer that question while we answer a bunch of procedural questions about how these things might work." This is just part and parcel of that. It's like, "Hopefully, we would never have to answer that question because anybody who's really innocent will somehow get it sorted out by the system if we let them work out." So, I'm sympathetic to that here.
Dan: The desire to avoid getting into the harder question.
Will: Yeah.
Dan: Okay. I want to do a take two on this one. I want to give this the Cruz treatment.
Will: All right.
Dan: I don't know if our listeners want this. I think they want us to cover a lot of stuff and do a lot of quick hits and be comprehensive. But I don't think that's our brand.
Will: If our listeners want that, they've probably stopped listening a while ago, Dan.
Dan: That's true. They're not our listeners, I think, is the [crosstalk] thing to say about them.
Will: All right, you can come back and tell me that you've figured it all out. [chuckles]
Dan: I'm not going to figure it all out. I'm going to come back and say, "I don't understand this. I need you to explain more stuff to me."
Will: There are more opinions. We were originally going to talk about Axon v. Federal Trade Commission, which has of other interesting exhaustion jurisdiction stuff going on, but it's not as interesting as Reed, and once we get to the first term decision, that's going to be a big deal, whatever it is.
Dan: Yeah. Well, I think that should be it for now. We've gone on for a bit. Other stuff we could have talked about, but I think that hopefully we will get big ones soon that are maybe a little bit more interesting to the non-jurisdictional, procedure-obsessed listener.
Will: They have cases that are not about jurisdictional procedure this term, Dan?
Dan: Little bit.
Will: Okay.
Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please, please remember to rate and review the show wherever it is you listen to it and help us find more listeners, especially as we get ready to head into May and June, the peak season for this podcast.
Dan: Go to dividedargument.com for transcripts, store.dividedargument.com for merchandise. If there is a big gap of time between this and our next episode, it's because we got too confused thinking about Reed v. Goertz.
Will: We were barred by the Rooker-Feldman doctrine.
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