After catching up on news and bemoaning some listener feedback, we look at some opinions that the Court dropped last week. We take a deep dive into National Pork Producers Council v. Ross and briefly discuss the two fraud cases, Percoco and Ciminelli.
After catching up on news and bemoaning some listener feedback, we look at some opinions that the Court dropped last week. We take a deep dive into National Pork Producers Council v. Ross and briefly discuss the two fraud cases, Percoco and Ciminelli.
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps.
Dan: So, we're back fairly soon, after our last episode, our very special guest episode. I don't know if everybody noticed, we just ended that episode abruptly without doing our lead-out, so we will make sure not to make that mistake again. I know you're all missing that where we say the same thing we say every episode. So, we will say that stuff today.
Will: We were so excited where the conversation ended, I didn't want to--
Dan: Yeah, you just wanted to go out on a high note. Maybe you pressed the stop recording button before you were supposed to and you just said, "Never mind." Any number of those things are true.
What other stuff to check in on? We've got some opinions to talk about. Let's stay non-substantive for a minute. We asked everybody to rate and review, and some of you did that. I could still use more of you to do that on the Apple Podcast app. Unfortunately, whenever we ask that, we get some people coming in positive, and some people coming in, they're reminded that they want to say something negative. We've got a user, GTS11, who says, "Will and Dan are great on doctrine." Okay, that's positive, "but they aren't able to effectively engage on the political side. Discussion of the Alito WSJ piece is a great example. Will offering a series of increasingly strained defenses and misreadings and Dan whinily pushing back. It goes nowhere. And please, no more dumb voicemail songs." That last request I'm going to reject. We will play the voicemail songs. They're good. People like them. If you don't like them, you are a spoilsport and you are not with the majority. But I don't know. Do you feel chastened by your "strained defenses"?
Will: I mean, I did enjoy that he gave it to both sides. I'm a little unclear on what this person's reading of the WSJ [chuckles] piece was and why our responses were inadequate.
Dan: Yeah, the problem that I was pushing back, I was just whiny about it. I don't really know. I don't know what I was supposed to do.
Will: I do like that in the last month, the reviews have been equal opportunity. We also have another reviewer complains that, "This is the best law podcast around, but it's become impossible to listen to given Epp's clearly disdainful bad faith criticisms of conservatives in the court." On the other hand, somebody says, "This is a treasure amidst other less nerdy podcasts. But I am sometimes irked by Will's spiel as our scholar perpetual interpretive charity for conservatives." I'm enjoying that.
Dan: That review also said, "P.S. Am I the only one who mentally fills in the tagline as unscheduled, unpredictable, unsolicited?" I don't totally know what that means. Basically, is that the idea that nobody wants us to record these episodes. Is that the [crosstalk] schtick?
Will: I think so. Whether you like it or not, here we go.
Dan: You don't have to listen. I mean, that's the thing about people who leave bad reviews for podcasts. There is no law. They repealed the law that says, "You have to listen to our podcast," unfortunately. There are lots of other podcasts. But thank you to those who left reviews. I got a friend of mine, perhaps a colleague, forced him to leave a review, for which I'm grateful. I won't name that person but keep them coming. Any other things to catch up on?
Will: Should we talk about the court?
Dan: I mean, we usually do. You might want to be more specific than that. So, what are you thinking?
Will: Well, I feel like we've now become running ethics commentary on the Supreme Court and those developments continue apace. But actually, the one interesting development that's happened, I think, since last we talked about it is not the court, but the Senate trying to get some information from Harlan Crow about exactly what he's up to and a full accounting of the gifts he's given to Justice Thomas. I think ostensibly, they can contemplate federal gift tax reform because this is for the Senate Committee on Finance. Harlan Crow, as apparently represented by Gibson Dunn, wrote back a nice long letter saying he is not going to respond to that subpoena, which he views as unconstitutional.
And actually discussing an issue spotter that I put on my Con Law - I Structure exam a couple of years ago, which is whether the limits on congressional subpoenas in Trump v. Mazars, the limits on the Senate's ability to subpoena the President, whether those also apply to the Supreme Court Justices whereas the apex officials of the other branch and Harlan Crow implies they do and that he is not going to be dragged into this.
Dan: In terms of the model answer in your exam, what did you conclude was the correct answer? Or is there no correct answer?
Will: As long as you spotted the issues, either answer was plausible. I think it's probably right that it does. The court's jurisprudence about the scope of congressional subpoena authority is itself a little confusing. It seesaws in some cases of hundred years ago about broad authority versus some limits, ends on relatively broad authority for a while that the court then starts limiting in weird ways to respond to the Red Scare in a series of strange-- but a lot of decisions that are not formally about the fact that these are communists. And then, I think Mazars is clearly pouring in another level of skepticism that we can't just let some committee say that it's interested in legislation and use as an excuse to haul politics into the court.
Dan: Do you think that this will go anywhere, or do you think this is the end of the road on this?
Will: I don't think this is going to go anywhere. Usually, it's hard for these things to go anywhere just because it takes so much time if anybody really wants to push it, and then by then things are turned over.
Dan: Yeah. I don't totally buy the argument made in the letter that this isn't something that's validly within the Senate Finance Committee's jurisdiction. You might be curious about amending the gift tax law, particularly because of instances where private citizens are giving things of value to public officials. That might be a reason why you might think, "Oh, gosh, we need greater disclosure of these things," or something like that. I think that's a hard thing for courts to be able to say, "Oh, this just definitely isn't legitimate." I don't know.
Will: Well, of course, it's legitimate in some sense. If you took the doctrine completely at face value, yes, you'd say, "Of course, it's legitimate." There's clearly in the doctrine a second level of, I don't know, a balance between how much we think this is really about a legislative prerogative and how much we think this is really about political grandstanding, which again, dates back to the Red Scare. Of course, Congress has some potential legislative reasons to want to haul people in front of Congress and make them say whether they are now or ever have been affiliated with the Communist Party. But the Court [crosstalk] to say that it might not be legitimate.
Dan: Not everything that Congress does has to be like leading to a piece of legislation. I mean, Congress has an oversight role in general, right?
Will: It's oversight role is not enumerated in the Constitution. Theory is the oversight role is in service of some other power it has. It could be impeachment, not legislation.
Dan: Yeah. It could be.
Will: They could say-- But I think there, the fact that the Committee on Finance is not who would have jurisdiction over that. I think over the House, whatever that is, Judiciary Oversight Committee that said, "We are considering impeachment--" [crosstalk]
Dan: Why would it be the Court's responsibility to police the internal separation of functions within one of the legislative branches? I don't know. Other stuff can happen in committees, and the Senate can accept it or not.
Will: Harlan Crow cites a Red Scare case for the proposition that that is one of the considerations because, again, if you think that there is a lot of unfair calling private people into politics going on in Congress, then one way to try to strike a balance is to say, "At least if your committee has legitimate jurisdiction over this topic, maybe we'll give you deference." If it's just that somebody has to be in their bonnet and wants to use the fact that the senator to embarrass you, then maybe not.
Dan: Yeah, I don't know. I'm not sure I'm comfortable with courts making those calls, but I don't think it really matters.
Will: I should say I'm not sure that Congress would have an oversight ability at all. At least not a non-- there's no enumerated [crosstalk] power.
Dan: What would it look like for Congress to not have an oversight role?
Will: If Congress wanted to have people testify in front of Congress, they could ask them to, but if people didn't want to, Congress wouldn't have any coercive powers to force them to.
Dan: So, Congress should not have a subpoena power at all.
Will: I am skeptical of that case law.
Dan: That would be a big change, right?
Will: There's enough history supporting it that chastens my skepticism as a--
Dan: I don't really care about precedent. You'd blow everything up.
Will: The entire 19th century is full of a complicated history of Congress demanding information, but that suggests that Congress does have some kinds of powers in this area. But even that history is confused and contested, and I'm not satisfied with it. Justice Thomas started to flirt with that view in Mazars, and I thought he made some good points.
Dan: All right, enough about that. Anything else?
Will: Let's talk about some opinions, Dan.
Dan: Okay. Got some opinions. We're finally getting some decent opinions. We got a fairly good dump of opinions last week. On Thursday, we got five opinions, including three that we had been talking about already on the show. Those three-- I guess there's two we're not going to talk about. Should we talk about the fact that we're not going to talk about them, or should we not talk about that fact?
Will: Their names are Santos-Zacaria v. Garland, a case about exhaustion and jurisdiction and Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo Inc., about--
Dan: That's good. You covered nicely on that. You got the accents in the right place and everything, the stresses.
Will: It's like jumping off a cliff. About Puerto Rico sovereign immunity. Yeah, I don't think we're going to say anything else about that.
Dan: No, we're going to leave those there. Somebody else can handle those. But the three we got that we are going to talk about are National Pork Producers Council v. Ross. Okay. Dormant Commerce Clause case we talked about whether California has the power to ban the sale of pork that is not produced in a way that it finds satisfactory. Can have a lot to say about that. And then, two federal criminal cases that we talked about in conjunction about wire fraud, Percoco v. United States and Ciminelli v. United States. So, maybe start with the pork case.
Will: I think it's the meatiest of the three.
Dan: Okay. That's the last one of those you get this episode. I think there's a danger with this one that we're going to just use up all our time talking about it. With that acknowledged, if that happens, it happens. So, taking us back on this one, we talked about this one some number of months ago. This case was argued in October, one of the earliest cases. This term, I think we both thought this was going to be a case that was going to divide the court, that this was a hard case in light of precedent, but also in light of what people's ideological common sense gut reactions were going to be because it's a case with reasonably high stakes because if California is allowed to pass a law that limits what pork can be sold based on the way it is raised in other states, and almost all pork that is sold in California is apparently raised in other states, this is going to have meaningful economic effects and industry-wide effects because California is the biggest market. And so, it leads to all these other questions about what other stuff could California effectively ban make everybody else in the country have to change their behavior, so on and so on.
On the other hand, it seemed maybe a little hard to come up with a clear rule for why California shouldn't be allowed to do that, given that California and states are usually allowed to decide what stuff gets sold in their states. Did we even reach a prediction on this one?
Will: I intentionally did not go back and listen to our old episode before recording this one. I think my view was that the right thing to do was for the court to uphold California's law, but that they were probably going to strike it down. So, I think I [crosstalk] wrong.
Dan: You got it wrong. Although did you for a really weird reason [Will laughs] we're going to talk about, so the court does uphold the California law here, though it does so in a fractured way.
Will: Okay, so what's weird is they do it in a partly fractured way and a partly unanimous way because there are two different questions doctrinally about the case, one of which the court is unanimous on and unanimously effectively overturns several of their old precedents, or, whatever, narrowing it, I guess we call it. But there is this line of Dormant Commerce Clause precedents that explicitly deal with extraterritoriality where it's a little more explicit than California, where you have a law that is explicitly hinged in part on out of state conduct. You can't charge prices in this state that are in X relationship with the prices you charge in other states that the courts struck down in several cases. But in the conflict of laws books or any other books that cover the Dormant Commerce Clause are taught as the extraterritoriality doctrine. That was the lead argument for the pork producers is that, well, this is a modest extension of the extraterritoriality doctrine. If there is an extraterritoriality doctrine, if there is a principle that California can't regulate the commerce in other states, we all know that's really what's going on here. California is regulating the production outside of California and it's a problem.
The court unanimously, Justice Gorsuch writing a majority opinion for the court, and I think joined by everybody, I think, at least all the other Justices describe themselves as concurring in part and dissenting in part, and this is the part they concur in. The court unanimously says, "Well, that doctrine isn't really about extraterritoriality per se. It's about the more traditional concern of the Dormant Commerce Clause against discrimination, against other states. So, there isn't really any longer a separate extraterritoriality doctrine." I think that's a big deal the court to just unanimously kill that, even if it's confusing--[crosstalk]
Dan: At least one coming through the Commerce Clause. There could be some other principle. Can I pause right there? Not pause the recording, but just pause you. Since I did go back, I just looked at our transcript of the pork episode.
Will: Oh, yeah, we have transcripts.
Dan: We do have transcripts. Check out the transcripts. That episode came out October 2nd. So, seven months ago. Seven months ago. Reasonable that we don't remember. I predicted that the California law would be upheld, and you disagreed with me.
Will: There you go.
Dan: Okay, but back to what you were saying. So, there is no longer just a broad extraterritoriality rule or to the extent that there was, this has been recast.
Will: Pause on this for a second because it's my hobby horse as a federalism and conflict of law scholar. Justice Gorsuch had written one of the Court of Appeals decisions about this as a 10th Circuit judge, I think, suggesting that the extraterritoriality branch of the case law ought to be killed because taken seriously, it'd be too radical. So, maybe in some sense it's not surprising that's where he came out on this. There's this general problem that everybody knows that there are some limits on state's ability to regulate extraterritorially. Talked about this-- people think about this a lot, for instance, in the abortion context, that there's some limit on Texas' ability to ban Illinois abortions. Nobody knows what part of the Constitution it is that says that and therefore nobody knows how to ground those principles or what they are.
So that for a while, the Dormant Commerce Clause at least was like descriptively the place that that had been grounded the most. There are some due process cases, a little Full Faith and Credit, occasionally about other stuff. So, this kind of heightened the mystery of where in the Constitution is that principle or is it okay if it's a non-textual principle? The court says that it's like, "Well, this is not a Dormant Commerce Clause thing." Maybe it's the Full Faith and Credit Clause, maybe it's Shelby County," they cite in a footnote. The Shelby County equal sovereignty principle might be the basis for this.
Dan: That doesn't make any sense.
Will: A plus trolling. Justice Kavanaugh writes a concurring opinion about that. I enjoyed that part of the opinion while at the same time I wept a little bit for the conflict of law system. But all right.
Dan: Can we linger on that just for a minute more?
Will: Yeah.
Dan: You have a quite useful, valid conspiracy post about this. There still have to be some limit, right?
Will: Yes.
Dan: We think that Missouri could not just pass a statute that says smoking in Illinois is illegal and send you to jail for smoking if you've never been in Missouri and didn't buy cigarettes that came through Missouri and didn't do anything in relation to Missouri. Right?
Will: Yes.
Dan: That seems like it has to be right?
Will: Yeah.
Dan: I think that probably can't come from the Commerce Clause because there could be other stuff that a state might want to regulate in another state that doesn't have anything to do with commerce.
Will: Maybe. That's why the commerce clause has never been totally satisfying, but at least that it's some of the work. Sometimes, people cite due process. In personal jurisdiction cases, we use due process as the home for the limits on one state's ability to haul you before that state's courts if you've never been connected to them. Now, there have been questions about why that's the role of the Due Process Clause. Justice Gorsuch following friend of the show, Steve Sachs, have suggested there's a more complicated rethinking going on there. But maybe the Due Process Clause, the Full Faith and Credit Clause seems like it has something to do with how states relate to one another. Some early case law relied on the Full Faith and Credit Clause, but in some sense it's still hard to figure out if that's really what you would expect it to be doing. The Full Faith and Credit Clause is mostly about interstate recognition of judgments and decisions and so on.
If you read the Article IV Criminal Extradition Clause that says that people who commit a crime in one state and then flee from justice have to be delivered up to the state where they committed the crime, it seems to assume something about where crimes are committed. It says, "A person charged in any state with treason, felony, or other crime who shall flee from justice and be found in another state shall, on demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime." I mean, you have to unpack that a little bit. It's certainly assuming a paradigm where you're in a place you commit a crime there, and then you go somewhere else. And so, it's hard to--
Dan: It doesn't really say that though.
Will: It never says it.
Dan: It just says you could be charged in one state for a crime committed elsewhere, you're in that state, and then you flee that state. That person would have been charged in the state, would have fled from justice, and then would have been found in another state and then could be removed to the state having jurisdiction of the crime. So, is it just the having jurisdiction of the crime that you think is doing the work?
Will: It's not clear what's doing the work. As I say, it seems to demonstrate an assumption, I guess, about-- but yes, you could say, "No, this works fine," if you say Missouri has jurisdiction over Illinois cigarettes.
Dan: What about the Sixth Amendment for criminal prosecutions? In all criminal prosecutions, the accused shall enjoy the right, speedy, and public trial by an impartial jury of the state and district wherein the crime shall have been committed.
Will: Wherein the crime shall have been committed, that again assumes it's being committed somewhere. Now, one option would be you could say, "Well, if Missouri wants to prosecute you for smoking Illinois cigarettes, they just need to get an Illinois jury." And maybe they can or can't do that. But maybe Missouri is saying, "No, the crime is a Missouri crime. It is illegal in Missouri to smoke cigarettes in Illinois."
Dan: What does it mean to say you committed that crime in Missouri if you smoke cigarettes in Illinois?
Will: Indeed.
Dan: It doesn’t make any sense. It wouldn't solve the problem because they could just get you for a petty offense, right?
Will: But without a jury.
Dan: Yeah.
Will: You might have thought, though, that Article VI plus the Dormant Commerce Clause might have covered most things. Most things are going to be criminal or commercial. I mean, they wouldn't have to be, but that would cover a lot. There's a case that I teach called Skiriotes v. Florida from the middle of the 20th century where a man, Mr. Skiriotes, is prosecuted for illegally harvesting sea sponges in what is arguably like international waters. It's like waters off the coast of Florida that's so far away that it might not be in the state of Florida. So, Florida statute is prosecuted by Florida. The case is about what is the boundary of Florida. The Supreme Court gets the case and says, "It's really hard to tell what the boundary of Florida is. It doesn't matter, because even if this took place not at all in Florida, there's no reason Florida can't prosecute him. Why can't Florida prosecute him for something that takes place outside of Florida?" It's not a very satisfyingly reasoned case, but it makes clear the court thinks that sometimes you can prosecute people for things outside of the state.
Now, it's a little different because he's not in another state, and maybe we think that's the important piece of this. But when trying to put these things together, it's just clear there are various cases, there's an overarching intuition. But then, unfortunately, it's not clear anybody follows that through in a logical way.
Dan: What do you think the right answer should be?
Will: I struggle with this. I think that the principles of territoriality were understood at the founding as an unwritten common law, The Law of Nations or the Law of Nations applied to interstate relations. In the pre-Erie world, that would have been general law. Not quite constitutionalized, although it's hard for any one state to change the general law. Some state attempts to abrogate the general law, it might have abrogated particular provisions, but that would have been the backdrop. I haven't fully worked through all the ways that would work and how it would be enforced.
Dan: That would relate to your theory in an article I know you're developing, that might be incorporated into due process post 14th Amendment--[crosstalk]
Will: Privileges and Immunities Clause post 14th Amendment. Yeah, that's one implication I've been going back and forth about, my coauthors and I have been going back and forth about. But maybe and the period of time where the court did try to constitutionalize these territoriality principles most aggressively were after the 14th Amendment. So, yeah, you might see the 14th Amendment as constitutionalizing the police power, including the territorial limits in the police power, maybe, but I'm not positive that's right.
My predecessor in office, constitutional office at Chicago named William Winslow Crosskey, who was one of the first originalist scholars of the 20th century, like in the mid-1940s and 1950s, wrote this like monumental and wacky book about everything in the constitution. He thought that the Full Faith and Credit Clause took that general law and constitutionalized it. That when the Constitution says, "Full Faith and Credit Clause shall be given to the laws of their states," it means the current principles of conflict of laws known and international law are hereby made constitutional. He had a very complicated argument for why that was true. Which I am skeptical of, but it would really solve all the problems if it were true.
Dan: What if you committed a crime in DC and a state wanted to punish that? There's no other state there to which Full Faith and Credit needs to be given.
Will: It's true. It might not bind the federal government, and therefore it might not bind the territories, which also does--[crosstalk]
Dan: Then, it wouldn't bind the state. The state would have no obligation to give Full Faith and Credit to what happened in DC.
Will: So, it would only be interstate cases you're saying?
Dan: Like, if Virginia just started saying, "Let's criminalize a bunch of stuff happening in DC," what would be the problem with that?
Will: I'm not positive. I think he might think that the Full Faith and Credit Clause constitutionalizes the scope of every state's laws, both the amount of credit they have to give to other states laws, and the amount of credit they can give to their own laws. [crosstalk]
Dan: This is quite a detour.
Will: Yeah. Sorry.
Dan: No, it's interesting though. It does seem like maybe this could have been resolved on a slightly narrower ground in the sense that this is not really an extra-- I don't think this is an extraterritorial law.
Will: It's not directly extraterritorial.
Dan: Definitely not directly.
Will: Right. I guess you could say that even if there is a direct extraterritoriality principle under the Dormant Commerce Clause, this isn't it, and so we don't need to get into it. The court had several petitions about this extraterritoriality question before though. There are a lot of cases that start to press the boundaries of this. Justice Gorsuch, I think, was familiar with several of them from his judicial career. This might be one of those times the court thought a broad ruling would actually be healthier and more clarifying for the law.
Dan: Especially given that they all seem to agree on it.
Will: [chuckles] Yeah.
Dan: Okay. The harder part is the stuff on which they don't agree. Actually, working through what the court as an institution thinks about this next question is a little trickier. So, help us out here.
Will: I'll try. Okay. The parts of the Dormant of Commerce Clause, there's the extraterritoriality part that's dead. There's the, "Does this law facially discriminate against interstate commerce part?" That's the main part, but everybody agrees it doesn't. This applies to California-grown pork too, and it applies regardless of where the pigs are raised. The third part is something called Pike balancing after an old case that the court decided that seems to call for some a weighing that is debated in this case, but some kind of a weighing between the benefits to the state and the costs to some other state. Trying to capture some sense that if you're doing something that it doesn't really make a lot of sense or something that important to your state and massively burdens other states, well, maybe that's the fact of discrimination, maybe it's unconstitutional for some reason.
And the court split several-- how do we say this? Five Justices agree that in this case, on this record, the law does not violate pike balancing. They disagree about why.
Dan: Looking at David Post's thing, he says at least if you add up Barrett, the kinds of economic harms alleged are sufficient to state a claim here, right?
Will: Yes, but [crosstalk] thinks that it doesn't violate it because for different reasons.
Dan: Yeah, but can you say the thing you just said again?
Will: Okay. Five Justices agree that this law on this record does not violate pike balancing.
Dan: Yes.
Will: The law should be upheld on pike balancing.
Dan: Yes.
Will: They disagree about why.
Dan: Yes.
Will: One argument for why it should be upheld is that there just isn't that big of a burden on out-of-state harms. One set of the Justices, Justice Gorsuch, Justice Thomas, Justice Kagan, Justice Sotomayor think that ultimately this is just not a big enough burden or the right burden, the right economic harm to qualify under Pike. That's only four of them and they rely heavily on an earlier case called Exxon. Justice Barrett, who is crucial to the majority, has a different reason for thinking this doesn't violate Pike, which is that Pike calls for balancing costs and benefits. This is a case where the costs are economic, but the benefits are moral. You can't balance an economic cost against a moral benefit because they're incommensurable, and therefore you can't engage in balancing. But she stresses--What's that?
Dan: You just can't do it. It just doesn't get off the-- this is a categorical, you can't do Pike in certain kinds of cases.
Will: Right. I think there's a quote, whether task is like being asked to decide whether a particular line is longer than a particular rock is heavy. Like they're just in different units. Is this line heavier than your rock is long?
Dan: That's a particularly good line from the Gorsuch opinion. As you might guess, it's actually a quote of a Justice Scalia opinion.
Will: [chuckles] Justice Scalia had good lines.
Dan: Yeah.
Will: But Barrett stresses that were it not for the incommensurability problem, she does think there's a big burden. She's not willing to sign on to the no burden theory. She just has a different theory.
Dan: And then, we've got two of the Justices that are in the majority on the disposition who disagree with the Gorsuch, "You can't do the balancing thing."
Will: Justice Kagan and Justice Sotomayor think you can do the balancing. That it's awkward that the law asks us to balance incommensurable things, but we do it all the time, but they think that there's not enough burden and so this law passes the balance.
Dan: Okay. We have to combine all this with the dissent to try to figure out-- let's add up some votes here. This is when it's going to start to get a little confusing because we have this partial dissent by the Chief Justice, joined by Justices Alito, Kavanaugh, and Jackson, interestingly. This is an interesting 5-4 breakdown. As you said, everybody agrees on the extraterritoriality stuff. But those four, they think it's okay to do the balancing of so-called incommensurables. They're okay with that. They also think that the burden here is significant.
Adding those up and there's this Volokh Conspiracy post, David Post, the Post's post that goes through this and describes it as something that has come up in other cases that we'll talk about in a second as a voting paradox where the court-- in terms of how people vote, the case comes out one way on the outcome but then if you go issue by issue and if you aggregated the court's views on all the issues, the case should come out the other way. It's a weird byproduct of the fact that we aggregate Justices votes based on their bottom-line outcome vote, not based on their views on the merits of any particular issue. So, add it up. We now get six Justices who say it's okay to do the balancing.
Will: It's okay to balance incommensurable harms. It's okay to balance economic harms against noneconomic benefits. Six Justices say yes. You can do that.
Dan: Yes. And then, you've got five Justices-- If you add up Barrett, the four dissenters, we've got five people who at least think the harms here would be sufficient to state a claim. Is that fair?
Will: Yes. Five people who think the harms here are sufficient to state the claim that would normally require you to balance. And then, yes, exactly. So, can you balance incommensurable harms? Yes, 6-3. Are the harms here sufficient to state a claim? Yes, 5-4. But wait--
Dan: Challengers still lose.
Will: Challengers lose because the 6-3 and the 5-4 don't light up in the right way.
Dan: This is something that has happened in other cases and is always a mess. One case I teach in criminal procedure adjudication is Arizona v. Fulminante. It's an interesting case about coerced confessions, and I teach the actual substantive coerced confession stuff in my investigations class. But in adjudication, we teach it to talk about the harmless error doctrine. When can a constitutional error still be ignored on appeal because it was harmless? Have a whole article about this. We've spent way too long in the show talking about it.
But for present purposes, the thing that's interesting is something that breaks down weirdly there where it's a case where the Arizona Supreme Court had reversed a conviction because it concluded that there was a coerced confession, and that it required reversal of the conviction. You go up to the Supreme Court and you have five Justices-- it's all broken down in a weird way. You had five Justices who agreed that the confession was coerced, but then you have five Justices who agree that such an error could be a harmless error. And then, you've got five Justices who think that the confession was not harmless. So, it required reversal.
In terms of who agrees with which part, if you go in terms of outcome, it actually should have come out the other way. So there, you have Justice Kennedy who thinks that it was not a coerced confession, and so should have voted to reverse the judgment below based on outcome, says, "Just to make things less complicated in terms of what we're going to sending it back down. If we were going to have to send it back down to the Arizona Supreme Court, this would be a huge mess. I will just go along. I will accept the holding of my five Justices and the majority fellow justices that this was coerced, and then I'm going to agree that it was not harmless on these facts." So, it's kind of a different thing than what happens here.
Will: Right. He votes the wrong way in order to avoid the voting paradox.
Dan: He does issue voting and not outcome voting, but most of the time the Justices do outcome voting.
Will: There's a rule called the Marks Rule that is partly used to decide what is the precedent when the court is splintered. And says you're supposed to look at the narrowest opinion necessary to support the decision. But that is itself been subject to great disagreement and criticism because I think there's a circuit split among at least the disagreement with lower court judges and I think even a circuit split about do you do that the way we've just been talking about by totaling up the dissenters with the majority? Or do you only look at the people who are citing the majority? And then, how do you decide which one is the narrowest? Friend of the show, Richard Ray, has an important article in the Harvard Law Review suggesting that the rule should be abandoned. I mentioned this because he supports the Justice Kennedy thing. He calls the Screws Rule after like a 1940s case where some Justice does this, where some Justice should just suck it up and break the voting paradox by engaging in a different kind of issue voting to clearly support judgment in the case that then once you get through it. [crosstalk]
Dan: That's only a subset of Marks issues though, right?
Will: Yes.
Dan: Some of them that doesn't come up.
Will: I notice this also because in this case, this issue then also gets there's some weird sniping between Kavanaugh and Gorsuch about these problems.
Dan: Like, what is the holding of this case?
Will: Well, I especially love Kavanaugh footnote 3. "The portions of Justice Gorsuch's opinion that speak for only three Justices," that's the Kavanaugh, Barrett, Thomas part, refer to the Chief Justices opinion as a "dissent.""
[laughter]
Will: "But on the question of whether to retain the Pike balancing test in cases like this one, the Chief Justices opinion reflects the majority view because six Justices agree to retain the bike balancing test. The Chief, Alito, Sotomayor, Kagan, Kavanaugh, Jackson. Thus, on that legal issue, Justice Gorsuch's opinion advances the minority view." So, it's like [crosstalk] denial.
Dan: The Chief Justice's own opinion is described as a dissent. That's what it says. It says dissenting in part.
Will: It does say dissenting in part, although maybe it doesn't mean that part.
Dan: Yeah, maybe just dissenting on the outcome.
Will: It's funny because, of course, these things are all formatted by the Court, so like put Justice Gorsuch's opinion first, but it's funny to see that denialism. But then, there's an equally weird response from Justice Gorsuch in footnote 4 of his opinion. "Both dissents seek to characterize today's decision as "fractured," in an effort to advance their own over broad readings of Pike and layer their own gloss on opinions they do not join. But the dissents are just that, dissents. Their glosses do not speak for the court. Today, the court unanimously disavows petitioner's almost per se rule against laws of extraterritorial effects. When it comes to Pike, a majority agrees that Heartland Pike cases seek to smoke out purposeful discrimination in state laws or seek to protect the instrumentalities of state transportation. A majority also rejects any effort to expand Pike's domain to cover cases like this one, some of us for reasons found in Part 4B, others of us for reasons found in Part 4C. Today's decision depends equally on the analysis found in both of those sections without either, there is no explaining the court's judgment affirming the decision below. A majority also subscribes to what follows in Part 5."
I read just as Gorsuch as saying under Marks, both of these are the narrowest ground.
Dan: Yeah, which doesn't really make sense. He's right that if you're trying to make sense of a case like that, or you're trying to make sense of what the court did, both of the rationales are necessary because that's the only way you can get to 5. But isn't that always going to be true in a Marks case where to explain what's going on, you have to say, "Well, these Justices thought this, and this justice thought that." Is this different than any other Marks situation?
Will: Well, the easy Marks cases are where one view is a wholly included subset of another. Like four Justices say, "This is always bad," and one Justice says, "This is sometimes bad," and his "sometimes" is a wholly included subset of "always". We just use the "sometimes" person as the narrowest ground. Here, because the two views are not overlapping, there are going to be cases that have the incommensurability problem, but not the lack of burden problem and vice versa, it's different in that sense. I think what maybe Justice Gorsuch is saying would be right is to say, the state is going to have to meet both. The state to win to get the benefit of the holding of this case, it's got to show both that it's an incommensurability case and--[crosstalk]
Dan: And it's not an incommensurability case. Why would this--[crosstalk]
Will: Incommensurability helps the state.
Dan: The state, yeah, yeah.
Will: California wants to defend future prop 12s, prop 13.
Dan: But that seems wrong because they don't have to show that to convince, they only have to show that only three Justices would care. And then, if the other six don't care.
Will: If the state can only show incommensurability. Imagine a new law that bans eggs. It's about eggs. If they show only incommensurability, they lose 6-3, because they have six Justices who don't care about commensurability. And if they show only lack of burden, they lose 5-4.
Dan: Don't they win?
Will: No, they show only lack of burden-- I suppose that case is like things are commensurable, then the state would lose Barrett because Barrett says--[crosstalk]
Dan: Well, it depends on-- that would be more fact specific though, wouldn't it? If they show no incommensurability-- if they can't satisfy incommensurability but then it just comes down to burden, it would just be a fact specific question about the burden.
Will: Sure. If it's similar to this case, so in that sense, it is true, this is a narrow in for the state, because to sustain these laws, at least on these facts, you need both, I think.
Dan: You need to have incommensurability and then be able to convince two people about the balance, how the balancing comes out.
Will: Yeah.
Dan: Fair enough. But if you're a lower court confronted with a similar incommensurability, case involving incommensurables, that doesn't end the inquiry. You still would go on and do the balancing.
Will: I think so. That's the idea.
Dan: You do have to because if the balancing clearly comes out against the state and it goes up, then you've just got three people mad about incommensurability, and then--[crosstalk]
Will: That would be right unless Richard Ray is right. So, it's true there are six people on the Supreme Court right now who say that, "Even if it's incommensurable, we would strike this down, if it had a bigger burden." But those six people have not yet written a Supreme Court opinion together. They're not yet a band. They're just like an imagined potential all-star band. This actually gets into the nature of precedent. Until those six people come together, we know how the Supreme Court would rule. We know it would rule 6-3 to strike down the law but there's not yet a precedent that says that.
So, I'm not sure as a lower court judge what you have to do. I think as a lower court judge, you might be entitled to say, "Look, yeah, it's pretty clear from these various things they've said that they will go there, but they haven't gone there yet." Unless you think dissenters have the ability to make law or to make precedent, which is the Marks question.
Dan: But why would the three Justices and the plurality have the ability to make law?
Will: There might just be less law on this topic.
Dan: You'd have to treat it as an open question, is that what you're saying?
Will: Yeah. You'd say it's still an open question.
Dan: Okay, that's fair. But you wouldn't just get to the incommensurability thing and say, "Okay, state definitely wins."
Will: You could say it's an open question whether the state should definitely win, and I find the Barrett view persuasive, and so I'm going to adopt that and let the Supreme Court overrule it if they want to.
Dan: That's fair. Okay. Anything else to say about this one?
Will: Do you think there are any more cases like this? There are lots more laws like this. In practice, do you think we're going to get the follow-on case pretty soon or do you think this is--?
Dan: Whether it gets to the court, I don't know. I do think this is going to encourage maybe more states to do stuff like this. I think we're seeing more and more grandstanding-type efforts of states in both red and blue states to do stuff like this. Obviously, one of the big things people are going to be concerned about is to what degree--? This has came up with Justice Kavanaugh's very short concurring opinion in Dobbs, the abortion case. To what ability do states have the ability--? To what ability can they regulate and criminalize stuff people do in relation to abortion in other states? Traveling to a different state to get an abortion, things like that. That's relevant to this question of extraterritoriality. But I can also see a bunch of blue states doing stuff like this. I know California is really eager to use its power to punish states that it doesn't agree with. Right now, if you teach at a public university in California, you're not allowed to get reimbursed for your travel to a bunch of states in the south. [Will laughs] They have laws that California doesn't like on social issues, which I think is a dumb rule that you should let people-- you want the free flow of ideas and stuff like that. But I don't know whether it's going to get back to the court super soon. I could see this bedeviling the lower courts for a while.
But I was thinking like between this and the court's decision in Wayfair five years ago that says, "It's okay for states to make sellers in other states collect sales taxes." We're maybe going to really see more complexity and fragmentation of the nationwide markets. States are between those two things, if you are a seller of goods, there's a lot of potential law that you might be subjected to in other states that you have to be aware of. It's going to make it messy.
Will: Yeah, I think that's right. Now, of course, this all takes place in the shadow of the possibility of Congress acting.
Dan: Congress, that well-functioning institution.
Will: Well, you might think that once big businesses start to get sufficient problems dealing with local state regulations, they might be capable of getting bipartisan legislation together--
Dan: Unless they're woke. We don't do favors for woke businesses anymore.
Will: They'll be just woke enough. Speaking of waking, I did enjoy one aside from Justice Gorsuch I hadn't seen before, which is Justice Gorsuch makes this point of how Congress could act under the Commerce Clause. And, of course, there's the irony, this case is about the Dormant Commerce Clause, which is kind of like the unwritten part of the Commerce Clause, but Justice Gorsuch refers to it on page 21 as, "Under the wakeful Commerce Clause, Congress has the power." [crosstalk]
Dan: Yeah, that was a good line. I don't always give him credit for good lines, but I thought that was pretty good. There was one other part of his just in terms of writing of his opinion that I thought was reasonably well done, which is in the part where he's saying, "Here's why we shouldn't do incommensurability, why we shouldn't be willing to balance those things." He says, "Look, this leaves us with a task no court is willing to undertake. Some might reasonably find one set of concerns more compelling. Others might fairly disagree. How should we settle that dispute? The competing goods are incommensurable. Your guess is as good as ours. More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people, and their elected representatives." I thought that was interesting, writing in the second person like that. Like, who is "you" there? A voter? Me personally? Is it you, Will?
Will: It's you, the reader, whoever you are.
Dan: But who is the reader? Because it raises this question of who is the audience for judicial decisions? Is it just lower courts? No, clearly not. It's the man on the street. It was a more explicit "break the fourth wall" moment in a Supreme Court opinion. I thought about it for a while, and I was like, "Okay, I think I like that."
Will: It's not quite a mixed metaphor, but it's a little funny because "your guess is as good as ours" is a well-worn phrase where the you isn't like really you. But then the next sentence, the wrinkle on it, "Well, your guess is better than ours." It then like, "Oh--"
Dan: You have to ask who the "you" is.
Will: Yeah. It breaks the fourth wall.
Dan: Yeah. It's a little disconcerting to read. I had to think about it, about whether I liked it.
Will: I think I like it.
Dan: Yeah. I don't know if I like the substance of it, but just in terms of rhetorical, forensic style, that it wasn't bad.
Will: At the risk of asking about a sore topic, Dan, are you coming around on Gorsuch style?
Dan: Hmm. I think he's real uneven. I infamously criticized Justice Gorsuch's early writing style. I created a Twitter hashtag, and there was a Washingtonian article about it I've tried to disavow. Some people got mad at me about that. I still think it was really funny, whether it was right or not. But I still think he's real uneven. I think he has some-- his slugging percentage is okay, but his on base percentage is not great. I know that's not Magic the Gathering, Will, I don't know if I can do baseball metaphors.
Will: No, I think I-- [crosstalk]
Dan: He gets some hits that are he hits for extra bases once in a while, but he doesn't get on base.
Will: This is golf, right?
Dan: Basically, sports ball. So, I don't know. He's no Justice Scalia. I think he would love to be Justice Scalia. I don't think anybody in the court is quite as good as Justice Scalia, but he's not one of the two best writers on the court, I think.
Will: The two, and you're not including the ghost of Justice Scalia as one of them?
Dan: Does he still write stuff on the court? He's quoted a lot.
Will: Yes. [laughs]
Dan: I'm not including him because he's not actively doing writing. He has written and is being resurrected.
Will: I assume you're picking Kagan and the Chief as the two--[crosstalk]
Dan: Yeah. And then, you'd have to think about where does Kavanaugh fit in? I don't have enough data about Barrett, Jackson. I think Justice Thomas' opinions, they're just too straightforward. He hardly ever takes a big swing, writing style wise.
Will: Yeah. And I think that's right. I will say the more opinions we have taking big swings and not meeting Justice Scalia's standards, the more that makes me appreciate some of just the facts type opinions that are clear but not flashy.
Dan: Justice Sotomayor has some good moments, and then she has other opinions that I think are more pedestrian. So, I don't know. Enough about that. But shortly after that section I just quoted, he quotes Lochner v. New York, famous Justice Holmes dissent about how the court shouldn't be in the business of regulating the economic sphere based on their own judgments about costs and benefits, about economic policy. Thought that was interesting. Would it just be Lochnerism he doesn't want them to do here?
Will: Well, I think he's even invoking the specific famously quoted line from Justice Holmes' dissent in Lochner, that the courts trying to engage in their own cost benefit analysis risks reading their own economic theories of the Constitution, just as Holmes famously said that the Constitution does not enact Mr. Herbert Spencer's social status. Probably one of the most quoted books that nobody reads anymore. Well, it's actually a good read.
Dan: You've read that book? You haven't read that book.
Will: My colleague has read that book.
[laughter]
Will: I thought about lying and just saying I read the book, but I don't lie.
Dan: I wouldn't let you get away with that.
Will: Or for that matter, Gorsuch says, "Mr. Wilson Pond's pork production systems. W. Pond, J. Maner and D. Harris pork production systems, efficient use of swine and feeder resources."
Dan: I'm going to also say that neither Justice Gorsuch nor his clerk read that whole book.
Will: I bet a clerk read that whole book.
Dan: I don't believe it, they're too busy.
Will: I would totally have read the whole book. As a clerk, you can't.
Dan: The entire book, like a 400-page manual [crosstalk] is about efficient use- I don't know. It's probably pretty long.
Will: Yeah. Okay. Google Books thinks it's like 445 pages.
Dan: Yeah, there's no way. I think you would look at the introduction and be like, "Okay, this is a book about the technical details of swine and feed resources."
Will: It has a lot of pictures. I'm looking at it now. Ugh, it's kind of gross.
Dan: Why don't you have your library acquire it and we can do an episode on it?
Will: Would you read it?
Dan: No, I would let you and then let you do story time and tell me about it.
Will: Well, it's got a lot of tables. Whoa. All right. [chuckles]
Dan: Okay. I'm noticing that we are now several minutes away from the time that I have to stop recording. That's only partially my fault because we got a late start because you were busy. So, I'm now increasingly concerned that we don't have time, as I sort of predicted, to talk about those fraud cases.
Will: Well, they came out exactly as we predicted. You can just go back and listen to the old episode.
Dan: Yeah. They're both quite fairly short opinions that don't take radical positions. I think they both end up in somewhat moderate places, but in both cases, they rule against the government. In Percoco, you've got an opinion by Justice Alito. In Ciminelli, you've got an opinion by Justice Thomas. And I might have more to say about them, but not today.
Will: Can I ask you one question about them?
Dan: You may.
Will: I've seen reported the idea that this is part of the court's corruption. Because the court is corrupt, and then now here it is deciding these cases to kind of further legalize corruption and that's part of the corruption court theme. Is there anything to that?
Dan: I think that's 10% right. I don't think it's corruption. I will say this, the court has done, I think, a good job taking a very close look at government theories in a lot of white-collar cases actually, over a fairly long period of time, over many decades. There's been just a ton of situations where the government has advanced fairly novel, potentially troubling theories that are designed just to put people in prison if they're doing shady stuff in relation to business and politics even if it's hard to put your finger on exactly what makes it critically bad and under theories that seem like a little dangerous. I think the court has paid attention to that and reigned that in. To the extent that there's criticism there, I would say the court seems much more concerned about those problems, fair notice, prosecutorial discretion in white-collar criminal cases than they do in other swaths of criminal law.
I don't think that's corruption exactly, but it's a choice to focus their resources in a particular place may be driven by sympathy for the kinds of people that get charged with these crimes, rather than the kinds of folks that are charged with other kinds of federal crimes.
Will: I don't disagree with that.
Dan: These cases, many of them, are not dividing the court on ideological lines. These cases, the court is pretty unanimous in how they should come out. So, I just don't think that's quite the right framing. I do think they're interesting because Justice Alito hardly ever rules for criminal defendants, and he's a little bit more willing to do so in cases involving white-collar defendants. Although when he does so, it's very grudging. He'll often say, "I do want to rule this way, but only just to make clear this is a really, really narrow result." He does that in a concurring opinion in the Ciminelli case. He says, "Yeah, I think we should reject this government theory, but here's a bunch of reasons why maybe in this case, we can still put this guy in prison and it isn't going to be that big of a deal in other cases."
He does something similar in Yates. I think that Yates, I think, is the only case that's the case about whether you can get someone for under this destruction of evidence statute for throwing fish into the water, whether that counts. Basically, the question is whether fish counts as a tangible object. Seems like it should. Five Justices say it doesn't. Justice Alito is the tiebreaking vote. He writes a super narrow concurrence that stands for hardly anything other than that, "You can't put this guy in prison," but I think it's the only one where maybe he's the tiebreaking vote in a criminal case dissent to let the criminal free.
But yeah, I don't know if the corruption is the right frame, and I don't necessarily think Justice Kagan is sitting there thinking, "Oh, gosh, I'm really worried about being prosecuted for all the stuff I'm doing. Let me write the rule in a narrower way." Maybe it does inform it in the sense that they are aware that there's all sorts of stuff that they do, informal context they have with people, that there need to be bright lines around so that people don't try to throw them in prison. I don't know. I think it's maybe more diffuse than that. You're just staring at me.
Will: No, I think I already said I agreed with you. [crosstalk]
Dan: You said more stuff.
Will: Well, yeah, but you said stuff that was even more reasonable, so it's going to sound even more lame if I agree with you again.
Dan: I'll think about that more for next time and see if I can come up with a spicier take on that. I think maybe I'm supposed to say this is corruption. I just think when you get into the weeds a little bit-- I'm also motivated by the fact that understanding the legal issues in the case, I think the government takes a lot of ridiculous positions. The government has taken some crazy positions in some of these cases. There's a reason that courts, especially the Supreme Court, when it actually gets these, it's like, "Wait, really? Is that what you're saying? No, you can't do that. That's not how it works." I tend to think the court is right. And so, I don't think I'm corrupt. I don't really have any power.
Will: Oh, come on, Dan.
Dan: The 12 listeners of the show, I don't really do much to persuade them. They just write podcast reviews about how I'm ineffective--
Will: Whiny, you're whiny.
Dan: I am, in this and many other areas. And nobody's really given me money, like even soft benefits. No one's taking me on trips to shape the coverage on the show, let alone to exercise any other power. So, I don't think I'm captured. I'd be happy to be. I could use the money, I could use the trips, but I think I'm actually coming down where the court does for actual legal reasons, if you can believe it. Once in a while, we have cases that turn on the law and not just like whether you're Republican or Democrat.
Will: Once in a while.
Dan: All right.
So, thanks very much for listening to the show. Thank you for those of us who have left us reviews, and even if they're negative, we'd prefer to have the positive ones. So please, if you like the show, go and drown out some of those negative voices on the Apple Podcast app in particular or elsewhere if you get your podcasts elsewhere, we'd appreciate it. Go to our website, dividedargument.com. We have transcripts of the episodes where you can fact check our predictions. Those usually go up within a day or two of the episode. You should go to store.dividedargument.com. We have some merchandise for the true diehard fans of the show. You can email us, pod@dividedargument.com. We read all the emails. Not great about responding to them, but they do shape our thinking. And so, we appreciate them. You can leave us a voicemail, 314-649-3790. We may play it on the show, we may not, but we do listen to those as well.
Will: We especially play them if they're in song form. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. I think we'll have more supreme Court opinions coming pretty soon, so hopefully be on the air soon.
Dan: If it's a long time before we record the next episode, it's because Will is on an all-expenses paid vacation paid by Harlan Crow.
Will: It's not going to affect my coverage. [chuckles]
Dan: All right.
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