After discussing a few pending issues at the Court, we look back to analyze several decisions from last month-- FBI v. Fikre, a mootness case with national security implications, and the shadow docket dispute in one of many cases named United States v. Texas (the SB4 case)-- and then turn to last Friday's more recent decision in Sheetz v. County of El Dorado about the Takings Clause and local land use policies.
After discussing a few pending issues at the Court, we look back to analyze several decisions from last month-- FBI v. Fikre, a mootness case with national security implications, and the shadow docket dispute in one of many cases named United States v. Texas (the SB4 case)-- and then turn to last Friday's more recent decision in Sheetz v. County of El Dorado about the Takings Clause and local land use policies.
[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: So, it's been a little bit since our last episode, about a month. Hoping that we're going to get more frequent. I'm done teaching in a few days, Will. So, later April and May looks good for me. I don't know about you.
Will: Looks great. I mean, the question is whether the court’s ever going to issue an opinion, I think.
Dan: I think, yeah, I mean, they did give us several, last week. I'd say they're not riveting ones. We're going to talk about one of those, and we're going to talk about one that actually came down the day our last episode came out. So, it's a little stale but none of you come here for up to the minute coverage. If you do, you're making a mistake.
Will: And I think some of this is our- So, I think we're recording this on Monday, April 15th, I believe-
Dan: Tax Day.
Will: -the court is planning to issue opinions tomorrow. So, it may be by the time we get this posted, we'll be just in time to have missed some blockbuster opinion.
Dan: I can record on Friday, but you said you're busy on Friday, so.
Will: I'll be better. I'll be better starting next week.
Dan: No, it's mostly been my fault. So, yeah, maybe next week, we will circle back to whatever opinions come out, if they are worth our time.
Will: What makes an opinion worth our time?
Dan: I find it interesting/I think a very larger percentage of our listenership would find it interesting. So, I'm willing to talk about cases in either category. Ideally, I'd talk about a case that's in both categories. Sometimes, they don't overlap.
Will: Do I fit in there, or is it just you and the listeners?
Dan: Well, I'm happy to go-- If there's something you're really interested in, I'm happy to accommodate. If you were to push something that I thought neither I nor our listeners would be interested in, I might gently push back on that.
Will: Yeah, I got Section 3 on you.
Dan: But, I mean, you are bankrolling this venture, so I don't have a lot of say-so.
Will: You're the brains of the operation. Where should we start?
Dan: So, it hasn't been, I'd say, super, super eventful since our last recording. There's been some shadow docket activity and then a couple opinions to talk about. Trying to think. Has there been any just court gossip type stuff? I feel like I'm not seeing a lot that we've missed on that front.
Will: I think things have been healthily quiet.
Dan: Yeah.
Will: There are the calls for Justice Sotomayor to retire. That's the main story, right?
Dan: Yeah, that's pretty interesting. A lot of liberals are saying, looking at polls that suggest Trump is favored to win the election, that it's a big mistake to have another liberal justice who is getting on in years. I mean, she's not as old as Justice Ginsburg was before the 2016 election, but she's had some health issues in her life, saying that the responsible thing to do would be for her to retire this summer and let Biden appoint a replacement who could serve for longer. I am skeptical that she will do that.
Will: But you agree she should, right? [crosstalk]
Dan: No. I don't know. I think that the first best thing would be for Justices not to make strategic retirement decisions. I don't love a world where Republican-appointed Justices make strategic retirement decisions and Democratic-appointed justices die on the bench and let Republican presidents replace them because we end up with a court that I think is pretty out of step with the overall results of the democratic process.
Will: Sorry, but it's the asymmetry you don't like, right?
Dan: Yeah, yeah. It's the asymmetry. I mean, I'd rather have a system that evened it out, something, maybe the 18-year term limits. Maybe something else that just didn't introduce this element of unpredictability. This is something I've said a bunch of times that I just think it's nutty that so much turns on whether Justice Ginsburg dies six months earlier or later. And I don't love that system. I'd like to fix it systemically. If it's not going to happen, it seems like they should either all do it or none of them should do it. In terms of her decision, she knows more about her health than we do, and a lot can happen.
A totally healthy 50-year-old Justice could keel over. She's only 69. It's certainly not implausible that she could live till 77 or so, which would get her through even two terms of a Republican president. I mean, I think if she were 80, I just would think that it is an obvious thing to do and a selfish thing not to do. I mean, I think that Justice Ginsburg, to the extent that she really cared about values she had been fighting for her whole life, I think it was a very foolish thing to do. And I don't think that anybody should really try to hold on to power for that long. I think it's crazy to let Justices have as much power as they do until very late in life.
With respect to our listeners who've joked about their median age before, but I don't think 87-year-olds should be making the important decisions for all of us. I think that it's time to pass the torch at a certain point.
Will: It's funny also, she replaced Justice Souter, right?
Dan: Yes, Justice Sotomayor did, who stepped down very early.
Will: I mean, it's not like he hadn't done his time. I mean, he'd spent what, 15, 10, 10-15 years over [crosstalk]
Dan: 18 years? 19 years, 19 years.
Will: Okay That's the term limit many people want, right? [laughs]
Dan: Yeah. But it's very unusual in recent history, I would say, where the norm is to either die on the bench or stay on fairly, fairly late into one's life. And my sense was, in his case, it does seem like maybe strategic considerations dictated exactly when he retired. But also, my sense was he just didn't really like being on the court and he was like, “Well, I don't need to keep doing this. And so, I'm happy to step off.”
Will: Well, here's a question for you. Suppose Justice Sotomayor is thinking about this, I agree with you, she's probably not going to. That's fine with me. But suppose she is going to announce her retirement at the end of this term and we'll have a new nominee and a confirmation hearing over the summer. Politically, which party do you think that's good for, or is it impossible to tell?
Dan: I'm not sure it matters a ton. Do you think that even the Barrett nomination and hearings, which were absolutely critical in terms of changing the balance of the power on the court, it did make the difference between whether Roe was formerly overruled or not. My sense was the Democrats as angry as the really hardcore base was about it, I don't think it ended up resonating that much for the voters that do end up deciding the election. And this one, you'd be going from 6-3 to 6-3. The way in which that might not be true is if someone is nominated and it turns out to be a disaster.
Will: Right.
Dan: That wouldn't be great for Biden.
Will: My completely unscientific instinct is that the Barrett nomination and confirmation did help Trump a little bit, just in that it helped remind all the Republicans who were in the, “I'm in it for the judges mindset,” just raising the salience of that, even though rationally--
Dan: Although, it was like, okay, we accomplished it. Right?
Will: Right. Exactly. Rationally, you might think, “Oh, okay, we got our third judge in. Now, we can get rid of him.” But I suspect it has the opposite effect.
Dan: Yeah.
Will: So, if you think Roe and abortion is a bad issue for Republicans, which it seems to be, then cut a confirmation hearing that really just puts the spotlight on Donald Trump.
Dan: Yeah. If they could surface that a lot, it does seem like that might be helpful to voters at the margins. But I do think that the Supreme Court is-- I think for most voters, it's not in the top five or maybe not even in the top ten issues. I mean, you and I care about it. Some of the really hardcore base people care about it. For suburban moms in Georgia, I don't know, they may care about abortion, but not necessarily. It's not necessarily the same thing as caring about the court.
Will: Yeah, I guess that's right. And it may also split the coalition depending on the nominee if the hearings end up being about whether the nominee supports Israel or Gaza.
Dan: [laughs] That would not work out great for Biden, I would say.
Will: But if you were Josh Hawley, isn’t that what you would ask?
Dan: Yeah, I think a nominee would be wise to avoid wading into those questions.
Will: Yeah, for sure.
Dan: Okay.
Will: Well, I don't think anything will happen on that front, but if they do, it'll be good podcasting.
Dan: But if people are interested in those questions, I have a working paper with Maya Sen, Adam Chilton, and Kyle Rozema that simulates how, in part, one of the things it looks at is simulating how Justices’ decisions to retire can affect partisan control of the court over a very long period of time. I don't need to get into the details, but the bottom line is it can make a really big difference that the delta of Justice Ginsburg's decision is really, really quite significant.
Will: Oh, yeah. I like that paper.
Dan: So, it's called the Endgame of Court Packing. We are hoping it will be published someday. It's in a peer review process which, I’ve got to say, for all the people complaining about student-edited law reviews, peer reviews have their own pathologies. It's been going through this process, I think we've gone back and forth with revision and waiting on referees, and it's now like three years, [laughs] and so it'll come out by the time which nobody cares about the issue, and we've moved on to whether ChatGPT can be president or something.
Will: Yeah, but.
Dan: But what?
Will: Well, now it'll be significant and proven to be of great quality.
Dan: Well, we'll see. Okay. Anything else that's been on your mind?
Will: We’ve got a couple of pieces of listener feedback that amused me. One from the reader who complained. I think we quoted this feedback on our last episode about the reader who complained that we should try to make our podcast more predictable. Just talk for an hour a week, etc., etc. Just encouraging us to record more. And then immediately after our last episode, he wrote it again to say, “Well, right after mentioning my request for more content, you turn to discussing the merits of mechanical keyboards. [Dan laughs]. Well played, the people withdraw their demand.”
Dan: We have some niche interests, and sometimes our listeners share them. Here's one. I don't know if you had this one, but we got feedback from a listener who signs off as “Tom, a Mere Undergrad.” “Hi, Will and Dan, if a new constitutional amendment were adopted today, how would one go about interpreting its meaning using originalism? Would it devolve into textualism because of an assumption that judges and legislators are operating on common linguistic ground, at least in a temporal sense? If not, who would constitute the public in original public meaning?” I thought that was quite interesting, and I want to hear your thoughts about that. But it also made me think of this cert petition that was flagged by my colleague Travis Crum, Cascino v. Nelson.
Will: This is the 26th Amendment case?
Dan: This is the 26th Amendment case. 26th Amendment says that the right to vote shall not be denied or abridged by the United States or any state on account of age. And state of Texas apparently has a rule that 65-year-olds and older can do no excuse mail-in voting, but under 65, people cannot. And Travis says, “This is clearly wrong that the Fifth Circuit upheld this. This law is facially discriminatory on age grounds.” And no, if you compare to how the court would analyze this question under the very similarly worded 15th Amendment to the Constitution, which forbids discrimination in terms of voting basis of race, that it would not come out the same way. I haven't thought about the issue at all, but fascinating.
But the thing that he noted that was interesting was that because of the ratification of this amendment, it actually made a difference to when Justice Sotomayor and Chief Justice Roberts could vote in the 1970s.
Will: Is that a recusal issue?
Dan: [laughs] I don't think so in the sense that many constitutional amendments affect everybody. Like, the First Amendment-- Justices have spoken in their life, so I don't think so. I think maybe [laughs] it would be a recusal issue if the question was whether it was a validly adopted amendment or something, whether [crosstalk] I think probably not.
Will: I think that's a great point. I will say I completely agree this is flatly unconstitutional, and I hope the court will agree. But the funny issue in general about the constitutional amendments that were adopted during the memory of the Justices and how they- What is the role of the Justices’ own memory in thinking about those, of course, this happened to a lot of the court's foundational 14th Amendment cases. The slaughterhouse cases, and all those cases, those justices were remembered, the debates about those amendments, they were often involved in the debates about those amendments, and that's a lot of reading into. “Oh, Chief Justice Chase opposed this part of the amendment and then interpreted it to mean almost nothing. Gee, [laughs] maybe that's not a coincidence.” But in a world where we don't make constitutional amendments nearly as much, now that can seem like kind of funny thing.
The one other example of this, that's one of my favorites that my father actually wrote a short essay about once, is the 21st Amendment, which repeals prohibition, comes up in all these cases about interstate wine shipping. There's a case, Granholm v. Heald, where the court rules in favor of the interstate wine shippers. And Justice Stevens has a short dissent that alludes to how the interpretation is going to seem bizarre to those of us who remember the period of Demon Rum. Again, it's just a little implication.
Dan: He wasn't conscious when it was ratified? He was a child.
Will: He was a child. His family was a big Chicago family involved in-
Dan: Bootlegging?
Will: -probably involved in the real estate industry. There's a reason to believe they- I guess nobody's going to accuse them of crime. No one's going to say they were involved in bootlegging. They were definitely- [crosstalk]
Dan: Statute of limitations have passed. It's fine. Accuse them of whatever crimes you want.
Will: But they were definitely-
Dan: Cannot defame the dead.
Will: Involved in the industries that were bootlegging adjacent. Let's put it that way. [laughs] I mean, it’s Chicago. Everything was bootlegging adjacent, I guess.
Dan: That's the title for the episode, I think, right?
Will: [laughs] So, it's a funny but again, it's a funny question of like-- especially- I mean, they were not children, but the justices who voted on the promise of the 26th Amendment, it's not like they were fully formed lawyers at the time either. So, I totally believe their memories may inform their view of what the amendment is about.
Dan: Yeah, but probably not as to this question. Like, what they would remember was this is the amendment that changed the voting age.
Will: Well, you might. So, that's the thing. So, the 26th Amendment says you cannot discriminate on the basis of age in voting as long as everybody's over 18. So, on its face, obviously, you can't discriminate and give 65-year-olds special privileges. But if you think about it from less of a textualist view and more of a--
Dan: I mean, not obviously, right? Because it could just be about who gets to vote.
Will: Well, but is it- [crosstalk]
Dan: Right. And you get to vote if you're 18, you just have to vote in a slightly different way.
Will: Well, formally, if you just look at the amendment like you're supposed to, I think it's totally clear that it's not just about who gets to vote. It says, the right of citizens of the United States who are 18 years of age or older to vote shall not be denied or abridged by the United States or by any state on account of age. So, it's not just who gets to vote. It's also everybody who's above that age can't have their rights denied or abridged on the basis of age.
Dan: Right. But doesn't it go to the question of whether the rights are denied or abridged?
Will: Sure. So, we could talk about whether it's abridged or not. But I do think many will remember it as, “Oh, that was just about saying that 18-year-olds get to vote.” Like, the core application is 18-year-olds get to vote, and this is the case about 63-year-olds who are not being treated as well as 65-year-olds?
Dan: Yeah. Yeah. Fair.
Will: So, it falls outside of the evil or the mischief of the amendment, but totally within the scope of the amendment, I think. As you say, under the 15th Amendment, I think if a jurisdiction had no excuse absentee voting for African Americans, but not for other races, in order to boost black turnout, I think there is no question that the court would strike that down.
Dan: Yeah. Although you wonder whether the court would do it under the 14th Amendment. How much the court just seems to prefer to move things into that category, even though I agree that would not be the right box If you look at the history and so forth.
Will: Yeah, okay, fair enough.
Dan: Women, a gender, they do the same thing, but fair enough. So, on the original question, I just wanted to flag, there's an article in this question by Tom Colby at GW, one of the best scholarly critics of originalism called The Federal Marriage Amendment and the False Promise of Originalism, written back in 2008, talking about then recent push to pass a constitutional amendment about same-sex marriage. And walking through exactly this problem about-- he argues that the difficulties that we face interpreting it and how that would have worked shows that originalism is problematic.
Unsurprisingly, I have some of the opposite view, but maybe that's because I have expected something different from originalism. So, I think obviously, if we adopted an amendment today, we would still have lots of arguments about what it meant.
Dan: Yeah. Originalist or not, we'd still have to figure that out. Right?
Will: Right. And my view is that's true, and it's a mistake to think originalism delivers only one right answer, but it narrows the range of debates, and similarly, our debates about that amendment would be narrowed. Like, we can get rid of a whole bunch of questions like, does this still matter or whatever because those are all-- And so, my view is just that originalism should narrow all of our constitutional interpretation to be about as easy as debates over recently enacted statutes.
Dan: Yeah. I mean, it also just simplifies that we don't really have to have these lengthy arguments. We can just come ask you and you'll tell us, and then we're done.
Will: Oh, I do like that.
Dan: Yeah.
Will: Yeah.
Dan: Okay, so let's keep an eye on that petition. If I had to put money on it, I would bet that they would deny it just because they deny most things. And my sense is there are lots of cases that are like, “Gosh, here's a really interesting issue that hasn't really come up before. Wouldn't it be cool if the court decided it?” They're just like, “Nope. We're going to wait until there's an eight-way circuit split on this issue.”
So, I think it would be great if they do, and maybe they will. But I just think if you're betting on these things, whenever there are these one-off laws that seem crazy, but present these novel constitutional questions, that's not as good a position to be in as a petitioner than if you can point to a really entrenched circuit split.
Will: Yeah.
Dan: So, it will be up for conference this Friday.
Will: Yeah. I do think coolness of the issue is not a rule ten factor that the Supreme Court considers in granting cert petitions. Sometimes, it does seem like an implicit factor a little bit.
Dan: Yeah. I remember there was one when I was clerking that I thought was fun. Maybe you will remember more about this case, but there was one about what the constitutional standard is for the freedom to petition.
Will: Yeah.
Dan: Do you remember this? Do you remember this? Basically, as I remember the facts-- Justice Thomas had a little dissent from denial about it. Basically, the facts were, there was some city council meeting or something, and for whatever reason, a bunch of people got mad at some official or something, and they just started going off and they just made all these absurdly defamatory claims about him, accused him of crimes. All sorts of stuff that was just not true.
And the lower court said, in a defamation action you judge it under the New York Times v. Sullivan standard, actual malice and so forth for a public figure. And as I recall, Justice Thomas' view was actually, maybe there's not even that standard that if it's a petition, it would fit into that category because it was at a meeting of a legislature, then basically there can never be liability. But the court wasn't interested.
Will: I remember this. I had the exact same view as Justice Thomas and great enthusiasm for this issue. My term, we had a case called Polar Tankers v. City of Valdez, a case the court did hear about the Tonnage Clause in the constitution, which I think was the first time the Supreme Court had decided a case under the Tonnage Clause in 70 years. That was pretty cool.
Dan: Still waiting for that big Third Amendment case.
Will: Yeah. After the clerkship, I decided I was going to write the definitive Tonnage Clause article. [laughs]
Dan: That hasn't materialized, has it?
Will: No. It was before I had a job. I worried that was not the right way to pigeonhole your research. [laughs]
Dan: You were worried that the ideological slant of that would outrage the academy because you were going Tonnage Clause originalism. It's going to- [crosstalk].
Will: I mean, it was going to be originalist. There is this whole genre though of Yale Law grads who want to go in constitutional law and think the solution is to find some part of the Constitution that nobody has written about yet, and there aren't very many. So, you’ve got to write about, “Well, the 26th Amendment has been covered, but has anybody written about the commas in the 26th Amendment?” that kind of thing, and I was convinced that was not actually the path to success.
But now I have tenure, I can do whatever I want. It just turns out that actually, it's more complicated than I thought.
Dan: It's just impossible to write the article or it would be the rest of your career.
Will: It wouldn't be the rest of my career, but it would be more research. There's more research left to do than I have so far been motivated to do. Let me put it that way. I'm going to have to dig into all these session laws about tonnage duties and what they were.
Dan: Yeah, that sounds dreadful.
Will: I could think about something-- doing more interesting.
Dan: Okay, let's talk substance.
Will: Yeah.
Dan: Let's go chronological. And so, let's go back to March, where we have one of many cases. I feel like we are going to have to have for a while-- maybe not forever, but for a while, multiple cases like this a year that are called United States v. Texas.
Will: Yeah. They should adopt a naming convention where they all have parentheses afterwards about what they're about. And it can't just be United States v. Texas immigration. So, this could be the SB 4 case, and then we could have the constitutional wire case and the DACA case and so on.
Dan: Yeah. I mean, my sense was that the Supreme Court reporters, like the Reporter of Decisions, used to do that more, like the slaughterhouse cases.
Will: Yes.
Dan: Right. That was just the reporter being like, “This is way better than naming it after the parties.”
Will: Yes.
Dan: That's great. The civil rights cases.
Will: Yes.
Dan: Why don't we do that more? My memory is also that with Bush v. Gore, that wouldn't have been the caption had they followed normal conventions. And then, reporter was just like, “We got to call it Bush v. Gore.”
Will: Oh, I didn't know that.
Dan: I read that somewhere.
Will: I know people tried to make that happen with NFIB v. Sebelius because at the time there were all these different vehicles. And so, Jack Balkin tried to get us to call it the healthcare cases. I think I even have an article where I call it the healthcare cases.
Dan: Yeah. I mean, if people are still talking about it in 100 years, it'll just make it a lot simpler.
Will: I think it's at odds with the courts public image to do that. I think they have to pretend like it's just one case after-- We just call all the strikes. This case happens to between- [crosstalk]
Dan: Even when they do something extraordinary, in that case, they had, I don't know, three days of arguments on different components of the cases.
Will: Yeah. I mean, I think that obviously that's always been very stressful for them to figure out when to grant extra argument and when to allow televised. That's part of how we ended up with the livestreams, I think, is because people wanted them to livestream the important cases, but they don't like having to say, “Oh, this case is important. And this case is just about the Speedy Trial Act.”
Dan: But we ended up with it because of COVID, right? Truly livestream. There was a period of time where there was like, “Are they going to release the audio more quickly after?”
Will: Oh, I guess that's right. Yeah. But they could have gone back on the-- all right, fair enough.
Dan: Okay. Substance. Substance on this.
Will: Texas has a law, and Texas also likes these kinds of extremely abstract naming conventions. So, their law is called Senate Bill 4. Not to be confused with Senate Bill 8, the abortion law we've all talked about for years. But Senate Bill 4 is their immigration law.
Dan: One of their immigration laws, right?
Will: Yeah. Which basically tries to create a state-level immigration offense that somewhat mirrors federal law so that Texas can enforce that state level offense against border crossers who it thinks are not getting adequately harsh treatment from the federal government.
Dan: And the federal government has sued to enjoin this law.
Will: Yes. Arizona tried to do something similar, whether it's distinguishable or not is a subject of litigation, ten years ago, which the Supreme Court held was preempted, mostly preempted in Arizona v. United States. But of course, the court has changed. The law is arguably distinguishable. The border has changed. So again, we have litigation of whether Texas can do this or whether it is preempted by federal immigration law. And the district court enjoined the law. This is one of these cases where even trying to remember who's on which side and what they did involves a lot of double negatives. But the district court enjoined the law. The district court thought it was preempted under the authority of Arizona v. United States, right?
Dan: Yep.
Will: And then, it's appealed at the Fifth Circuit.
Dan: And the district court said, “I'm not going to stay this injunction.” The injunction goes into effect.
Will: Right. The injunction goes into effect. So, the law doesn't go into effect. It's a new law. The new law does not go into effect because the new law is enjoined by the district court. Then the Texas, then the Fifth Circuit is going to hear an appeal about this. But while we wait to hear the appeal, the Fifth Circuit is asked to grant a stay pending appeal of the injunction, which would put the law back into effect. While we wait to figure out whether they should grant a stay, they grant what's called an administrative stay. And what makes something an administrative stay?
Dan: It's like a stay pending the resolution of the stay.
Will: Right.
Dan: It's just like, “Hey, freeze.” It's like the “saved by the bell” thing where they do the freeze frame and they’re just like, “Pause everything. Let's think about it for a second. Okay. You get the stay. No, you don't.”
Will: Like, “Hold on. What is this case? What is the statute? Bring me up to speed.” Of course, the Supreme Court does this all the time. People will file-- We cover all the time. Somebody's asking the Supreme Court to stay or enjoin lower court ruling, and the first thing that'll happen is Justice Alito will grant a one-week administrative stay to figure out whether or not they should grant a stay, and then he'll extend it a couple of times. The Supreme Court even did this in this case.
But, all right, the Fifth Circuit stays the injunction, which means that's a pro law decision. That means the Texas law gets to go back into effect, right?
Dan: Yep. Administrative, it’s administrative stay.
Will: Administrative stay. And then, while we're waiting for the Fifth Circuit to decide whether to grant a real stay, we wait a while, and the United States goes to the Supreme Court and says, “We've been waiting a while, and we're not sure what's happening. So, would you guys vacate the Fifth Circuit's administrative stay, thus putting the district court's injunction back into effect?” And the court says, “No, maybe. Not yet.”
Dan: Not now.
Will: Right. Call us later.
Dan: And why? Why not now?
Will: Okay. So, we have several opinions, enough to, I think, be able to know this- Actually, do we know how many Justices there are? No, we have. We know how many Justices are there.
Dan: Yeah, I mean, I know how many justices there are in the court. Is that what you mean?
Will: Yeah. Justice Barrett and Justice Kavanaugh. Justice Barrett writes, joined by Justice Kavanaugh, an opinion concurring in the denial of applications to vacate this day. This is the closest thing we have to an explanation from the court about why it's not vacating this day. And she says, “Well, if the Fifth Circuit had issued a stay pending appeal, we would apply our Nken test and also my Does v. Mills test to decide whether or not it was correct.” But this is an administrative stay, theory that it's allowing it to actually decide whether it grant a stay. And so, they haven't even decided whether a stay pending appeal is warranted. That puts this case in a very unusual procedural posture.
And so, she says, “I don't really know what to do with this.” She just says, “We don't really want to subject an administrative stay to the full, at this point, quite elaborate test of whether to grant a stay, because the whole point of an administrative stay is to figure out whether to grant a stay.” And presumably, again, the court itself, when Justice Alito grants that administrative stay, we don't want to make him first do the four-factor test to decide to grant administrative stay. We want to just give him a week to talk to his colleagues. So, that's an argument that administrative stays can't have the same standard.
At the same time, one of the arguments the SG had made to the court and that Justice Barrett acknowledges is that what happens if a court of appeals just leaves the administrative stay for a really long time. If you're the Fifth Circuit want to stop this injunction and you've got the administrative stay in place, you just might not be in a rush to schedule oral argument, to get the opinion out if the status quo is what you're happy with.
And so, she says, “So far as I know, this court has never reviewed the decision of a court of appeals to enter or not enter an administrative stay. I would not get into the business. when entered, an administrative stay is supposed to be a short-lived prelude to the main event. I think it unwise to invite emergency litigation in this court about that topic. But if they stay too long, the time may come, in this case or another, when the court is forced to conclude that an administrative stay has effectively become a stay pending appeal and review it accordingly. Right now, that's premature, but we'll see.”
Dan: Okay. And she says, “So far as I know, the court has never reviewed the decision of a court of appeals to enter or not enter an administrative stay.” Steve Vladeck, friend of the show on his Twitter feed, pointed out that, that statement was maybe wrong, maybe incomplete, which the court did review an application to overturn an administrative stay in the SB 8 abortion case. Am I explaining that correctly?
Will: The original-- SB 8 went to the court and they issued a long opinion. But before that, like on the day that SB 8 was supposed to go into effect, there was this fracas whether the court would stop it from going into effect. And that was a review of an administrative stay denial out of the Fifth Circuit.
Dan: Yeah. And so, they didn't apply the factors to it, necessarily. But to the extent that there was writing in the case, no one said the reason that this is happening is because it's an administrative stay.
Will: Right. Well, just as Barrett did say, “So far as I know.” So, goes to the point that the difference between an administrative stay and a real stay might not always be obvious, if the court doesn't even always notice which lane it's in. But it also goes to Justice Barrett's point that they just haven't really grappled at the question of, does a different standard apply when the Fifth Circuit itself says, “We're not even sure yet whether to grant a stay. We just want him to figure it out”?
Justice Barrett also relies on this great article by Rachel Bayefsky at UVA called Administrative Stays: Power and Procedure, came out in 2022, Notre Dame Law review, that I remember thinking was terrific, precisely for exactly this reason that obviously stays are becoming frequent and important. And in light of the state jurisprudence, which, where they fit, nobody was paying attention to it. And I think Justice Barrett adopts several of Professor Rachel Bayefsky’s points there. I remember when I was clerking, I thought about this because that was when the court issued Nken and some of these stay things.
Dan: I was at that argument.
Will: Really.
Dan: It was the day of my interview for Justice Kennedy. The then clerks, including good friend of the show Ashley Keller, arranged to have the interviews happen on argument days, and you would go talk to the Justice and go to the argument and have lunch with the clerks. It was kind of cool.
Will: That's a really nice touch.
Dan: Yeah, it was great.
Will: I was also at that argument, but I don't know if I saw you.
Dan: Well, you wouldn't have known me. I would have been a random person.
Will: I think. I remember-- I knew you were interviewing that day.
Dan: How did you even know who I was?
Will: People were talking about you.
Dan: You just got the names. You didn't know me because I would see you even after clerking. I would see you hanging out in the Sweetgreen on P Street where I lived, and I was always too shy to talk to you.
Will: Likewise. I remember there was an argument whether or not you were a lib. [laughs]
Dan: I don't know. It’s complicated.
Will: Even now, I don't know the answer, so.
Dan: Yeah, I think that Ashley's still willing to talk to me. So, I think I didn't betray him too much.
Will: Wow. Ashley's a complicated. [laughs]
Dan: Yeah, he's a lib now. He's a plaintiff's lawyer.
Will: Right. Sorry, Ashley, you're not alone. It's okay. Yeah. Anyway, I remember thinking, in some ways, maybe the stay test does apply. The question for administrative stay should be sort of with the stay, is there enough of a chance we're going to grant a real stay, you show some likelihood of success, not on the merits, but on the next stage. Enough of a likelihood of getting a stay that it's worth pausing things to get the stay, and some reason that we should pause things.
Dan: But isn't it more complicated than that? Shouldn't the normal stay standard apply to a normal stay of an administrative stay? The applicants are asking for a normal stay. So, shouldn't the normal stay factor apply to that stay, even though it's a stay of an administrative stay?
Will: Sure. But the question is whether the Fifth Circuit erred in granting an administrative stay. And to figure out the Fifth Circuit erred in granting administrative stay, we need to know what they were supposed to think about. If there were just a statute that said, anytime you file a stay request, you automatically get a 24-hour administrative stay, then the Fifth Circuit would not have erred, and we don't want that rule, because then you could file frivolous state applications all the time and just clog up the works.
Or, like when the Supreme Court has an execution scheduled, they don't always grant an administrative stay. Two hours before the execution, somebody says, “Hey, stop the execution,” and they say, “No, there's no chance that we need any more time to think about this. So, we'll deny it now.” Although you occasionally see dissents about this, where Justice Breyer would say, “Oh, well, I just wanted 24 more hours to think about whether the death penalty was unconstitutional,” or something. But it is a tricky area if you're a procedural law nerd.
Dan: Okay, we've got other stuff to talk about. Anything else to say about that? We have a full-throated dissent by Justice Sotomayor, joined by Justice Jackson, and then a one-quarter-throated dissent by Justice Kagan.
Will: Just to note, this all went down right after our last episode was enacted. The Supreme Court rules in favor of Texas by not granting the application to vacate the stay. But within a few hours, the Fifth Circuit read Justice Barrett's opinion, moved up the argument day for the actual stay decision to the next day by Zoom, I think. So, they got the message, like, “Oh, we shouldn't just let this drag on.” And then, I think after doing that, but before even they had time for the Zoom argument the next morning, they then vacated their administrative stay by a 2-1 vote.
So, somebody in the Fifth Circuit woke up, [laughs] either got the message or just wasn't paying attention, was suddenly dialed in. They got rid of the stay. So, the injunction is back in place, and so things don't look good for the future of SB 4 in the Fifth Circuit panel although there's still a Fifth Circuit en banc at the US Supreme Court to consider. I'm sure we'll talk more about it.
Dan: Okay. Some stuff on the orders list from today.
Will: Yeah.
Dan: So, a few things. So, one, McKesson v. Doe. This is a case that has been kicking around for quite some time. And what happened is there's a lawsuit against DeRay McKesson, who is one of the central figures in the Black Lives Matter movement. And he was sued for events that arose out of a protest in Baton Rouge. Not because of what he did, but because the argument is by holding the protest in the way that he did, he was a cause of a police officer being injured at the protest, and he's being sued under a negligence theory.
And there's a reasonable argument that this theory is banned by the First Amendment because it would basically impose threat of very serious liability on anyone who leads a protest, even if they're not themselves causing violence. It's been kicking around in the Fifth Circuit. It went up in the Fifth Circuit a while back. Judge Willett, my memory initially, upheld it, and then maybe he on reconsideration, changed his mind and dissented. The court vacated the judgment previously and remanded to the Fifth Circuit to say, “Go take a look at- Go certify this to the Louisiana Supreme Court so they can tell us whether this theory is even allowed. Because then if it's not, nobody has to worry about this constitutional question.” Louisiana Supreme Court says, “No. Good to go.” And so now, the case is going to go forward. Fifth Circuit says it can go forward. No First Amendment problem.
They come back to the court. Court denies. And we have a statement of Justice Sotomayor respecting denial, which never clear from that, like, what the Justice wanted to do. They just respect denial. Could have wanted to hear the case. Could have not wanted to hear the case. It's not a concurrence, it's not a dissent. But she says, “Look, after the Fifth Circuit ruled--” we decided this case that we talked about last term, Counterman, which is about the appropriate mens rea standard for certain speech. When you can have negligence or not, the answer is no, generally a little bit more complicated than that. And she says, “Look, it's going to go forward, but the district court can figure out how that case changes the analysis.”
Will: Yeah. So, it's one of the times you might not. Maybe she didn't want a grant cert because she agreed they could be with it later. Maybe she did want a grant cert, but doesn't want it to seem like she lost the issue. So, it's still out there. One of my colleagues, Genevieve Lakier, is presenting a paper at our faculty workshop this week on Counterman and its impact on various other doctrines. So, maybe I'll learn something about how this case is supposed to come out.
Dan: Okay, well, then you can file an amicus brief in the district court, depending on what you learn.
Will: Okay.
Dan: Okay. A couple others. We have a pretty short one called Michaels v. Davis. And this was a capital case where there was a confession obtained from suspect in violation of Miranda v. Arizona. So, the suspect in that case invoked the right not to answer any questions, which is a right that Miranda gives you. And the police are supposed to stop, at least for some length of time after you invoke that right. And the police kept questioning him, got a two-and-a-half-hour tape confession. That was introduced to the jury, notwithstanding that it would violate Miranda to do so. And on appeal, went through the process and ended up getting to habeas. And basically, the state court said, “This is fine because the error was harmless.”
Will: The error in letting the jury see a two-and-a-half-hour confession in which the defendant appears incredibly unsympathetic about their brutal crimes.
Dan: Yes.
Will: Hmm. Why would that be harmless?
Dan: Yeah. Sorry. Let me restate that. Not the state. The Ninth Circuit panel, in a habeas posture, refused to overturn the penalty phase of the conviction, despite the erroneous introduction of this confession.
Will: And why did they do that?
Dan: They said the error was harmless.
Will: Why would it be harmless? It seems like it's important evidence.
Dan: It does seem like quite troubling evidence. But the court has said in a case, Arizona v. Fulminante, that confessions can be subject to harmless error analysis. So, even if there's an error in admitting them, court can look at the record and say, we don't think it made a difference. And here the court said, “Oh, everything he said in the confession was also corroborated by other evidence that was admitted, and so it was harmless.” And she has an opinion saying that's not harmless. That the value of the confession of showing the suspect being remorseless, laughing about the crime, would influence the jury. And that struck me as plausible and correct.
Will: Yeah, I confess I also-- I've always been a little uncomfortable with the way courts sometimes do this harmless error analysis. I think part of what the state argues is, yes, this showed that he was a terrible person and that he obviously did it, but there was lots of other evidence he was a terrible person and obviously did it. And so, what's one more two and a half hours of rubbing that in? I am always worried about that way of thinking about harmless error.
I get it when it's like, “This was a stupid piece of evidence that nobody even really cared about,” or something, there's no reason why the jury even paid attention to it. That makes sense to me. But when it's clear the jury paid attention to it, and we're just saying, well, a hypothetical jury that didn't pay attention to it would have done the same thing. That seems different to me.
Dan: Yeah. You have the same intuition as Justice Scalia in a case called Sullivan v. Louisiana, which was the inspiration of my 2018 Harvard Law Review article, Harmless Errors and Substantial Rights, where he says the inquiry in harmless error is what effect did this error have on this jury, not what would a hypothetical jury have done in an alternate universe.
Will: Yeah.
Dan: Seems right to me.
Will: Yeah. But I guess that's not the law.
Dan: Well, I mean, that is the law. That's a majority opinion. [laughs] But, at the same time, the court other times does things that seem inconsistent with that.
Will: I mean, I guess if cert is at all a normative, equitable process, I can see why the court thinks, “Look, if the only error here is that this admission, this confession violated Miranda--”
Dan: Yeah.
Will: “-then we just don't really care.”
Dan: Yeah. I mean, the court doesn't allow-- this majority doesn't love Miranda, and the effect would be to provide a benefit to this conceitedly remorseless killer. So, I can see why this one maybe didn't get everybody motivated.
Will: Hard to lose sleep over it.
Dan: Yeah. Although it's a capital case that-- I think people should approach those with a certain amount of caution. I think the court owes that to the people at issue. Do you want to talk about anything else? There's one by Justice Sotomayor about a Batson challenge. Batson forbids certain discrimination in using peremptory strikes during the jury process in a case called JEB extended Batson, which is about the race context, to use of peremptory strikes to strike jurors on the basis of gender.
And in this case, there was a plausible argument made that the state had used its discretion, used its peremptory strikes to strike a bunch of women, and they claimed it was because of their opposition to the death penalty. But if you compare them to how the state approached male prospective jurors, it looks like there's a decent case of discriminatory treatment. And the lower court didn't really do that comparative analysis. And she says they should have. Trial court screwed this up.
Will: Yeah, I dug into this a little bit, and I will say, this is one of those- I do feel the litigators here. It looks like the Texas Court of Criminal Appeals, they said, “Look, many of the women said they oppose the death penalty, but look, they struck a woman who didn't particularly oppose the death penalty and left on this man who did. And so, we think gender is at issue for that particular strike.” And the Texas Court of Criminal Appeals said, “Well, if you look at most of them, it seems like most of them are fine.” They just don't respond. And then, the brief in opposition says, “Well, it's true that the court has repeatedly said that you're supposed to consider these at an individual level and not just look at most of them, but they never said that the court actually has to say magic words that I've looked at it.”
So, I feel like this happened to me in practice. I'm sure it happened to you, where you make a good argument, the court clearly doesn't like the argument, and they just say something like, “We have listened to all the arguments and concluded they lack merit,” and never actually respond to your argument because there's not a good answer.
Dan: Yeah, very unsatisfying. But okay, enough of that, I think. Let's do cases. Do you want to take us back a month to- Unfortunately, one of the things I meant to do to prep, as I do occasionally for this show was to figure out how to pronounce this name.
Will: It's called FBI.
Dan: [laughs] The other one. The one on the other side of the v. Please tell me you figured this out.
Will: No, I don't know the last name is spelled Fikre. It’s a gentleman from- I don't know whether it's Fikra or Fikray.
Dan: So, I just pulled up the argument audio.
Will: Okay.
Dan: And the Chief Justice said Fikray.
Will: Okay.
Dan: Sometimes my understanding is that the clerk's office gives him a little pronunciation sheet, although I've encountered other times where he's saying the council's name and it sounds wrong to me. So, I don't know. But that's the best we can do.
Will: I am looking at the Reddit thread in r/Ethiopia on this question.
Dan: About the supreme court case.
Will: Well, about the pronunciation of the name, although it's about a different person.
Dan: Were you already a subscriber to that subreddit?
Will: No, although-
Dan: You are now.
Will: No, I think I should be. Lot of got stuff there. Anyway, there seems to be a lot of disagreement, but we'll go with Fikre.
Dan: No, he said Fikray.
Will: Fikre. Yonas Fikre, a US citizen, alleges that he was placed on the no-fly list, and it led to some quite astonishing consequences, including being tortured by the United Arab of Emirates at the behest of the US government, and eventually stranded in Sweden for years. This is the motion dismissed stage, I guess. So, maybe this -[crosstalk]
Dan: The court has to accept the factual allegations as true in the court. And the government in this situation filed a response saying the case is moot. And the government could have tried to contest the facts but does not have to. And so, if it does not have to for this stage, the court accepts the facts as true. So, the government did not contest those facts for purposes of ruling on this question and the lower court ruling on the question of whether the case is moot.
Will: Just to back up one step, his claim is the placement on the no-fly list was unconstitutional because it either was selective enforcement on the basis of religion or race or something, or lacked due process because he never was told what he did wrong and given a chance to disprove it. So, he's suing about his placement on the no-fly list and they did not want to defend this case and so instead just pulled him off the no-fly list, as I understand.
Dan: Yeah. And the facts are, as alleged, are pretty terrible. He is from Eritrea, grew up in Sudan, becomes a citizen, goes back to Sudan to pursue some business opportunities. He tells the US officials, when he is there, “Hey, I’m here to do business opportunities.” They say, “Oh, come to lunch at the embassy.” And then, they take him to this room with FBI agents and they say, “You’re on the no-fly list and the only way you can get off is if you basically agree to become an informant about what’s going on at the mosque you go to.” And then, the whole saga where he gets tortured in the UAE and goes to Sweden and finally Sweden charters him a private jet to get him home. Pretty terrible.
Will: Yeah. I can see why the government decided to just let him win. Maybe they didn't think this was a good vehicle to litigate their national security discretion.
Dan: That seems like not a great vehicle. And how the court tried to get rid of it is in May 2016, our government says, “You’re removed from the no-fly list,” and they didn't give an explanation. But then they went to court and says, “This is now moot.”
Will: Yeah, he won. He got what he wants.
Dan: Yeah. And the Ninth Circuit said, citing well-established precedent, that where basically the one party has mooted the case by saying, “Okay, we're not doing the thing that you complained about anymore,” that it's not enough to just show that they not doing it now. They have to show that this allegedly wrongful behavior cannot reasonably be expected to recur, and I think quite fairly said. Just saying he's not on the list anymore isn't enough because you could put him on the list again tomorrow. And then they say okay and then they come back and they issue a declaration that says Mr. Fikre will not be placed in the no fly-list in the future based on the currently available information. Okay.
And so, the question was whether that made the case moot. Ninth Circuit said it does not make the case moot because it doesn't really tell us how he landed on the no-fly list. And it doesn't tell us that maybe the government will put him back on the list if he does whatever it was he was doing before they got him on the no-fly list. Like, goes to his mosque or whatever.
Will: Yeah. Part of the puzzle, this is unanimous. The court does not buy this trick. Part of what's interesting is that we were hearing this case at all. So, we're hearing this case because the Solicitor General asked the court to review the Ninth Circuit decision, thinking they could get it reversed, I guess. Instead, got a unanimous loss. Now, part of the reason they asked for that is because they do have precedent in several other circuits, no-fly list cases saying this works.
Dan: Yeah. And maybe the government for whatever reason thought this was the right case to bring to the court. I don't know how horrible the facts are in those other cases where the nongovernment losers would be bringing the case.
Will: Well, I think when you're the government and you win the cases in all the other circuits and then you lose in the Ninth Circuit, you usually think, “Okay, we get to go and say-
Dan: Looks like the outlier.
Will: -the Ninth Circuit's trying to-- I think the government's argument, as I understand it, is, “Look, when we said he won't be placed in no-fly list in the future based on the currently available information, that does moot the current controversy.” Like, sure, maybe he'll actually become a terrorist because he's now so mad at the United States for all the terrible things we've done to him, and we reserve the right to put on the no-fly list then. But that's a different case. So, it's not--
Surely, he can't expect a categorical pardon in the future and he's been off the list for seven years. We in fact have not gone back and tried again. I don't know if that really works. But those don't seem like great arguments to me.
Dan: Yeah. And Justice Gorsuch, on behalf of a unanimous court, did not find those to be great arguments. Sort of said, “Look, they're saying that, but we don't have information about what exactly might happen to get him back on the list. Maybe he hasn't been going to his mosque. Maybe he wants to go back and he's not going to because he's worried about this. We just don't know based on the facts that are available right now. And so, we need the government needed to do more to really convince us.” And so, I don't know. I assume the government is going to try again.
Will: I assume. Although it is a little interesting to think, could they settle this case somehow? What does he want? He wants not be on the no-fly list. They've given him that. He wants an explanation for why he was in the no-fly list, but maybe they could give him one?
Dan: They're not going to give him one.
Will: Okay.
Dan: That's just not something the government does.
Will: Yeah. Could they just say, “We screwed up,” even if it's not true, and just say-
Dan: They don't like to do that either.
Will: “-on the no-fly list because we confused you with the other Yonas Fikre”?
Dan: Yeah.
Will: Yeah. But maybe they'll say-- I mean, one of the interesting things in the background of this is, maybe there's a lot of classified information that justifies the government's behavior, maybe his business dealings in Africa-- I have no idea. Maybe his business deals in Africa were suspicious or illegal in some way that was harmful to national security. And so maybe now, they'll bring that up.
Dan: Yeah. The court leaves open the possibility that the case might actually be moot. It says, “Our judgment is a provisional one. Just because the government has not yet demonstrated that Mr. Fikre’s case is moot does not mean it will never be able to do so.” And so, the case is going to go back down, stuff's going to happen. There'll be discovery, although that will presumably be a bit complicated by the presence of classified information, more on that in a second. And then, maybe could become clear, some point in the trial or before we get to the trial that it is moot. And then, because court have an obligation to always ensure they have jurisdiction, if it becomes clear, then the court should get rid of the case.
Will: So doctrinally, I have been working on the Fed Court's casebook and the Fed Court supplement trying to figure out, does this case add anything to mootness doctrine. And I think there was one ambiguity in mootness doctrine until now, or at least debatably, which is whether the government is held to the same standard as other litigants. When we're analyzing these voluntary cessation questions. In general, some of the cases about the you get sued for polluting, and so you shut down the factory while you're being sued, you plan to fire the factory back up as soon as suit goes away, some of those are private parties.
And I think there was at least some argument or some hints in some cases to suggest that when it's the government that stops and when they file a solemn declaration saying, “Don't worry. We’ve really stopped,” that you are supposed to believe them in some stronger way. And the court explicitly says that the same standard applies to the government.
Dan: Yep. And then, a short concurrence by Justice Alito, joined by Justice Kavanaugh. Just saying, “Our decision, I write to clarify my understanding that our decision does not suggest that the government must disclose classified information of Mr. Fikre, his attorney or court to show that this case is moot. In some instances requiring the government to disclose sensitive information regarding its grounds, replacing or removing a person on the no-fly list could undermine the government's significant interest in airline safety and the prevention of terrorist attacks.” And he says some of the nation's 600 plus district courts are poorly positioned to handle classified documents.
Will: That was weird.
Dan: Which ones? Which ones? [laughs] The ones in the Ninth Circuit? The ones in California?
Will: Yeah, the ones in the Ninth circuit, I think.
Dan: Yeah.
Will: And the other liberal circuits.
Dan: Yeah, I mean, I think he might be thinking that. And Justice Alito certainly is somebody who's not a huge fan of leaks coming out of courts. So, yeah, I guess we'll see what happens in the lower courts. The lower courts, maybe they don't give them classified information, but maybe more stuff happens. So, that's all I have to say about that one.
Will: Yeah, yeah. Interesting.
Dan: And then more recent case Sheetz-
Will: v. the county of El Dorado, California.
Dan: Yeah, I’ve got to say, I was hoping this case was going to be about the famed gas station chain, Sheetz.
Will: What are they famous for?
Dan: I don't know. They're just like, I mean, you ever taken road trips?
Will: Many.
Dan: You must have stopped at a Sheetz along the way.
Will: Yeah, I feel like most of my road trips out west, I feel like Sheetz is more of like an east coast--
Dan: Yeah, that's right.
Will: It's like the Wawa thing that people like.
Dan: Yeah, I think that Sheetz is higher quality, better than median quality of gas station is my sense. And it's a funny name.
Will: My kids just want candy in a gas station.
Dan: Yeah, they have that everywhere but it's not. It's about a man named George Sheetz. And this is a case about the Takings Clause.
Will: Yeah.
Dan: Fairly straightforward, but interesting. So, Sheetz owns some land. It's residential parcel. He wants to build a small prefabricated home. And so, he goes to get a building permit. And the county says, “You can have a building permit as long as you pay a traffic impact fee. And we're going to use that fee to fund improvements to its road system.” And the fee in this case was $23,420.
Will: [laughs] It's a lot of money.
Dan: It's a lot of money. It's a lot of money. And the court had considered sort of related issue. So, the question is whether putting that demand on his right to build is a taking. And this question is, you can understand that if you have a right to build in general and the municipality says, “Sure, you can build as long as you give us money,” or let us have an easement,” or any number of other things, that seems like what we might think of as an unconstitutional condition. You're being asked to give something up in a way that violates your constitutional rights.
And the court had these two cases that rhyme. I don't think there's any other factual connection between them, but they rhyme. Nollan and Dolan, which had said if there's a process and you get a building permit and administratively, they demand some exaction to build, that's a taking. And the issue here was whether those cases apply only to permit conditions imposed on an ad hoc basis by administrators rather than ones that are imposed by legislation.
Will: Right. So, the case the courts had before is you need permission to build. So, you go down to the county and you file your paperwork and you pay your architect or whatever, and then they say, “Oh, yeah, nice plans you got. Yeah, just give us $23,000 and you can have it,” or, “Just give us your front lawn and you can have it,” or whatever. So, it really feels like a stickup.
Dan: Yeah.
Will: Whereas here in defense of the County of El Dorado, they have rates, they have posted rates. So, “You want to build? Sure. Just look on the sheet and it tells you how much money will charge you. And it's a lot of money, but you can decide whether you like the price.” The question is whether that makes it any better if you do the demands at scale. They published a rate plan rather than ad hoc.
Dan: Yeah. Whether it's through legislation-- the issue about whether it's a rate plan or something is a little complicated. We'll get to that in a second.
Will: Yeah.
Dan: The court says it's the same.
Will: And the court says as long as it's legislative, it's the same as if it's administrative. So, it doesn't matter that it's adopted legislature.
Dan: Yeah.
Will: Yeah.
Dan: And the court leaves open this question of whether, if they are doing it in this broad-brush way, whether it has to be imposed with a level of specificity where they have to-- Broad brush, we have to have an individual calculation for each property versus just saying “In general, here's what it's going to cost.” Court leaves open that question.
Will: I will say I was trying to figure out in this case, it seems clear that the Takings Clause applies to legislature as well as the executive branch. And even if you wanted to be all textualist about it, this is a 14th Amendment case, and the 14th Amendment says make or enforce. So, seems like it'd be pretty clear that it applies to both branches. So, how could there be a debate?
But as the opinion says, the parties didn't even really disagree about this proposition. The respondent defending the judgment below was not saying legislation is categorically exempt from the Takings Clause. They were just saying when the legislative exaction takes the form of this pre-published rate plan, you shouldn't get to come in and say, “Well, as applied to us, the rate is unfair. The rate is too high,” even if it's generally a fair rate. We still don't know the answer to that.
Dan: So, the court doesn't resolve that question.
Will: Why not?
Dan: I don't know. Just-- unanimity-- There clearly is some disagreement because we have this concurrence by Justice Kavanaugh, joined by Justice Kagan and Jackson, that stresses that the court leaves that question open. Okay, at least doesn't necessarily say how those cases should come out. But to the extent that opinion is stressing that it's open suggests that maybe that should be considered differently.
Will: And it implies no prior decision of this court has addressed or prohibited that longstanding government practice.
Dan: Yeah, yeah.
Will: Yeah. But they're not promising they're going to uphold it. But given the authors and the way it's written, they certainly seem to be suggesting they're going to uphold it.
Dan: Yeah, it seems more likely. And then, we have competing separate opinion by Justice Gorsuch who says, “Look, the court doesn't resolve this question, but I think the answer is clear. To assess whether government has engaged in a taking by imposing a condition on the development of land, the Nollan-Dolan test asks us whether the condition in question bears an essential nexus to the government's land use interests and has rough proportionality to properties impact the interest. Nothing about that test depends on whether the government imposes the challenged condition on a large class of properties or a single tract or something in between.”
Will: Yeah, so he says, “How could it be different?”
Dan: Yeah, but that was not the basis of the decision below. Decision below had this broader ruling. Everybody seems to agree it's wrong. Court says it's wrong. Let's make it simple. Leave the question for another day.
Will: Right. And then, Justice Sotomayor and Justice Jackson have yet another point, which is not unfair, that they also question the premise of whether this whole unconstitutional conditions analysis only makes sense if the thing that's being exacted would otherwise be a taking. But maybe demanding $23,000, like just imposing a parking fee, a five-figure parking fee, maybe it's not a taking. Maybe it's a tax or just a reasonable the way things work. And so, maybe they could just charge you the money without getting your permission. It seems like all the interesting land use questions are left to be resolved again, but maybe the floor has been cleaned a little bit to get into them in the future.
Dan: All right, I'm running low on time. I don't know if you have more to say about this one.
Will: No. I was a land use guy in law school, so I like these. I took a lot of courses on it. I like these a lot.
Dan: You're like the Madonna of the legal academy. You've had a lot of phases. You had the Tonnage Clause phase. You had the Land Use phase. I don't know what's next.
Will: I plan to unite these interests in the future in a question about a case about whether or not zoning regulations violent Tonnage Clause.
Dan: I look forward to that one. Yeah. All right, lead us out.
[Divided Argument theme]
Will: Thanks very much for listening. Please remember to rate and review the show on the iTunes Podcast app or wherever you listen to the show. We've been seeing reviews sort of fall off recently, which makes me worried that people aren't going to be able to find the show. So please, if you like the show and if you haven't left a review yet, please do. You can email us at pod@dividedargument.com. We occasionally discuss but always read your thoughts. We have a voicemail number too, but I don't remember it. Dan will know.
Dan: pod@dividedargument.com. Website, dividedargument.com for transcripts. store.dividedargument.com for merchandise. 314-649-3790 is the voicemail number. And if there is a long delay between this and our next episode, it's because we left the country and we were placed on the no-fly list and cannot get home.
Will: We'll sue.
[Divided Argument theme]
[Transcript provided by SpeechDocs Podcast Transcription]