With apologies for Dan's horrendous audio quality: we catch up on the latest emergency-docket happenings and debate whether Trump v. Wilcox is a big deal or small potatoes. We also catch up on listener feedback and, for the first time in a long time, play a couple of messages received on our voicemail line (314-649-3790 for anyone else who wants to chime in).
With apologies for Dan's horrendous audio quality: we catch up on the latest emergency-docket happenings and debate whether Trump v. Wilcox is a big deal or small potatoes. We also catch up on listener feedback and, for the first time in a long time, play a couple of messages received on our voicemail line (314-649-3790 for anyone else who wants to chime in).
[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: All right, Will, it's been a little while since we recorded, but last time we recorded, we did do a double session, so hopefully people aren't too mad. You know, a little bit of a bone to pick with you. Which is the last time we recorded, it was on my birthday. And I don't recall getting a happy birthday from you, but that's okay. I'm over it.
Will: I texted you, happy birthday.
Dan: Yeah, but you texted me happy birthday like a month earlier when I told you when my birthday was going to be.
Will: Does that not count?
Dan: No, it doesn't count. You can't anticipatorily wish someone a happy birthday. It has to happen on the day of.
Will: I think I said happy birthday when we were recording.
Dan: Okay, well, if anybody can find that in the episode.
Will: No, I think I edited out, but I think during the chit chat portion that we've already done today. Happy birthday, Dan.
Dan: Okay, thank you. What else? Any news on your end? You won an award, right?
Will: Yeah.
Dan: Can we talk about that?
Will: Sure.
Dan: What was it?
Will: I recently won, with my wife, a clinical professor in our Federal Criminal Justice Clinic, a award for Diversity Leadership at the University of Chicago.
Dan: I take it this is ideological diversity?
Will: Yes. So, we created and piloted a seminar. It was just an extra class we taught on top of our regular teaching obligations in the winter quarter on litigating originalism. So, the question was whether you like originalism or not, suppose you recognize it's a thing in the federal courts, and suppose you're a practicing lawyer, not hypothetically, who wants to figure out, how do you actually make originalist arguments in a district court? If you want to say for the first time that this indictment violates the Fifth Amendment, Sixth Amendment's nature and cause requirement, or that this gun regulation violates the Second Amendment, what do you look to? How do you go about constructing the arguments.
Dan: Which strikes me as quite challenging for your run of the mill public defender who doesn't necessarily have access to all these big law libraries and various online databases. Did you solve the problem?
Will: I mean, that's part of what we talked about. And we are lucky enough to get virtual guest lectures, both from Jeff Fisher, who runs the Stanford Supreme Court Clinic and of course is responsible for several cases in this genre, like Crawford and Ramos in the Supreme Court. And then also from Brandon Beck, who is now a professor at Texas Tech Law School, but who was the defense attorney who basically spotted and teed up the Second Amendment argument in Rahimi that prevailed in the Fifth Circuit. Then of course, he left the case and once he left, the Supreme Court ruled against him. And so, we could talk to both of them about how do you find the issues, and especially if you're a working public defender, how do you litigate them, etc., that was part of the question.
Dan: Yeah, that's really interesting. And I'm familiar with those cases at the Supreme Court level but had never thought to go back and look at how they were litigated at the district court level. And it's interesting, maybe this is-- we're getting too deep in the weeds. But it's interesting because you need to preserve the arguments at the district court level in order to be able to raise them on appeal and take them to the court, but you don't necessarily need to make a 60-page version of the argument. I think if you just say enough to preserve the argument that at least gets it in the case. And then I imagine as you go up the judicial hierarchy, there's more sources that the lawyers accumulate to bring to the court.
Will: Yeah. Often at the district level, you can't file a 60-page brief even if you somehow wanted to. Yeah, so that was definitely one of the variables. And we spent a lot of time reading things in the district courts, briefing the district courts. In some cases, again Second Amendment cases, there are now cases where people bring in expert witnesses, historians on both sides who submit declarations about whether or not the framers of the Fourteeth Amendment did or didn't think that moral character was a requirement for bearing arms and all sorts of different things like that. Two other things, just quickly about this. So part of what made the classes successful was not just the professors, although we are the ones who won the award, but we managed to get a group of very ideologically diverse students, including some, I think you might call them, hardcore originalists, who are going to go clerk for court of appeals judges who everybody would recognize as hardcore originalists, and others who--[crosstalk]
Dan: These are bowed groupies.
Will: Others who might be more like Judith Miller groupies or future public defenders or public interest lawyers who don't care about originalism or even maybe are against it, but who want to figure out how to win cases. And getting that group of students talking to each other and thinking about how these things actually work in practice, it was just a really cool experience. And I'm glad that the university recognized, it's like what the University of Chicago is all about.
Dan: All right, well, congrats to you. Sounds like a very cool class that I would have enjoyed taking, had it been offered when I was in law school. Okay, some other odds and ends to pick up from the mailbag. One we didn't get to last time, but we've been… had it sitting in our mailbox for a couple weeks from friend of the show Brian Fitzpatrick, professor at Vanderbilt, who says the following. He says on the last podcast, this is no longer the last podcast, but this is a couple episodes ago when we're talking about the first set of decision action by the court in the A.A.R.P. case. He says, “In the last podcast you asked whether the Supreme Court could have gone forward at 1:00 AM without reaching some of the Justices.
I think if some of the Justices could not be reached, they would have had to indicate that those Justices did not participate. I recall once we had to do that while I worked for Justice Scalia because we could not reach him to vote in a late-night death penalty case because a tree had fallen down at his home and his telephone line was disconnected and he had no cell phone yet.” That's interesting.
Will: That's very interesting. I didn't know that.
Dan: What do you do in that situation though, when the court is… it's 4-4. I mean, if it's a death penalty case and there's four votes either way and you just can't get another Justice on the phone. Do you just affirm the denial of a stay by an equally divided court, or is the right thing to do there for one Justice on the no side to cross over and grant the stay?
Will: Yeah. I mean, that's not the normal genre where you hear about the courtesy fifth vote for a stay, but certainly as a literal courtesy, you could imagine doing that. The common-sense view depends on which way you think Justice Scalia would vote. If it's a kind of case where Justice Scalia might well want to grant this day, it'd be a courtesy-fifth so you could get a hold of him. If it's the case where he'd be annoyed to [laughs] learn that the whole thing had been held up because his house is by a tree. But I don't know if that's appropriate to actually have that be at the deciding mechanism.
Dan: Yeah, I mean, I guess in that situation, I would think you would really want to avoid the prospect of it later becoming apparent that somebody died just because one Justice couldn't be reached. So, if there's any meaningful chance that this Justice would have granted the stay, I would think that another Justice should err on the side of granting a stay. I don't know if that exact fact pattern has ever transpired though.
Will: Right. And I think this also means you'd be erring on the side of the sort of whichever side was more irreparable. It's annoying for the state when an execution is stayed and they have to get a new execution date and all those things, but they could deal with it. Is it much worse than annoying if somebody is executed who shouldn't have died?
Dan: Anything else from the mailbag?
Will: In response to our investigation of the five-Justice concurrence question, which we've talked about a couple of times, several people sent in this thing that is not a 5-Justice concurrence. And I can't remember if we talked about this on the show back when it issued. And I'm not sure I can pronounce it because it has lots of Z's in it, but it's something like Grzegorczyk v. United States. Do you remember this?
Dan: This got resurfaced for us by a couple of listeners and I vaguely remembered it, but not super well. And it did make me wonder whether we had ever talked about it. And if not, why not?
Will: It might have come down around the day of Dobbs.
Dan: Yeah, yeah. June 30th, 2022.
Will: Which was our longest and one of our most downloaded episodes ever. So, we might have been distracted.
Dan: Yeah.
Will: So, it is a statement respecting the denial of certiorari. The upshot of which is there's somebody who's petitioning for cert in a criminal case and the United States confesses error and says, “We agree, we want you to vacate and remand the case, to go deal and withdraw his guilty plea or something,” which is something the court routinely does or routinely did. And the court instead denies the petition for cert. So, even though both sides agree the court should grant, vacate, and remand, they don't. And then there is a statement respecting the denial by Kavanaugh, the Chief, Thomas, Alito and Barrett that says “Basically, we don't think it's appropriate to remand when there's a confession of error by the executive branch.” The Constitution affords the executive branch authority to unilaterally provide relief to the defendant if it wishes to do so, pardon them. President regular exercise that power, but we're not going to do it for you.
Dan: Yeah. And so basically the statement here is a per curiam opinion not affirming, but it's functionally the equivalent, right?
Will: Right.Because it's a denial of cert. I don't think you ever have a per curiam cert denial.
Dan: You could, right? I mean, there's no reason you couldn't. I mean, it's an action of the court. A majority of the court could just say, “Let's do this as a per curiam.” I mean, there's many things that the court doesn't issue opinions for, but there's no reason.
Will: Yeah.
Dan: Not to. But.
Will: And so, far as I can tell, I looked into this a little bit after I learned about this and I think it marked actually a real change in the court's GVR practice. I think GVRs on the basis of a government confession of error used to be controversial and there were debates about exactly what the government had to confess error to when they would do it. But there was a set of them that were pretty routine and I think now they have basically stopped. So, I think this case kind of marks a change in policy by the Supreme Court that they won't let the SG do a low-key commutation through a confession of error anymore.
Dan: Yeah, that's interesting. I would be delighted if one of our listeners would take a look at that empirical statement and confirm that it's correct. It sounds plausible to me. All right. We get occasional voicemails. We haven't been great about playing them on the show. Some are good and some end up not totally fit for the show because sometimes they're too long. But we got a couple that I think are worth listening to and responding to. So, let's play those now.
Jason: Hi, Will and Dan. My name is Jason. I'm a public defender from California. And I just want you to know I really enjoy the show. I love the needling from Dan to Will. And I like that. I just love when you guys just discuss cases and you guys seem like more generalist to me. So, I don't want you to like get involved and get all the specialist admin guys or the professors. I just think you two are cool. And to hear you guys talk about case law and talk about what's going on at the Supreme Court is really awesome. So please keep up the good work. The blog is great. I just really enjoy you two. Thank you.
Dan: That was pretty great.
Will: Those are very kind words.
Dan: Not really a question for us to respond to, which is totally fine.
Will: Well, I have a question.
Dan: Okay.
Will: So, when he says he likes the fact that we don't know a ton about what we're talking about.
Dan: I don't think it was phrased exactly that way.
Will: And he doesn't want us to get the specialist admin guys or the professors because he just likes us.
Dan: Maybe the same people.
Will: Do you think we should tell Jason that we are professors?
Dan: We can keep that under wraps for the time being.
Will: I realize we may not sound like it, but-- [crosstalk]
Dan: Yeah, that reminds me of one of the reviews we got recently on the famed Apple podcast store. Let me pull that up. This is a review from josh15423 says, “I'm a law student and this podcast was the first time I've ever heard a professor use the word ‘based’ as an adjective. Congratulations.” I think so. At least I did that one time. Maybe you did it too.
Will: Okay. I didn't know that was unusual.
Dan: Well, it's a little-- it's a slang wise, a little newer. It's not super cool. Senator Mike Lee's Twitter, or his X Handle is based Mike Lee. So, not sure you can really say it's the way the kids talk anymore.
Will: Regular Mike Lee. There was regular Mike Lee, which was done by his comms team, and then based Mike Lee, which was like him just saying things he wanted to say.
Dan: Just going off.
Will: Yeah.
Dan: Okay. One other voicemail.
Male Speaker: Hey, guys, in your recent episode, you talked a bit about what's going to happen to Justice's papers after their death, including a discussion of what's happening to David Souter's papers, Justice Steven’s papers, and some other judges. So just wondering what you both expect is going to happen to current judges, given the papers aren't really in paper format anymore. Will current sitting Justices, I don't know, take a bunch of word documents when they leave, of all the tracked versions of opinions as they've been drafted or pool memos from clerks are conference memos and notes that are taken by Justices done by hand? Are they electronic? I guess what I'm asking is how much paper is there still for current Justices to take if they want it. And if things are mostly electronic, is there any actual prospect that Justices who depart the court now will really be taking a bunch of word documents with them? Thanks, guys. Bye.
Dan: So, that's a really interesting question. Take the first part. I'm not totally sure where things stand with paper in the building. When you and I were clerking, documents would get circulated by email but also printed via paper. A couple copies of each memo to the court would immediately be sent by a clerk over email. And then, you would say, paper copies will circulate shortly. My guess is either that has stopped or if it has not stopped, it will stop at some point in the immediate future. That's just the world we now live in. And I think this is a problem for archivists. It's a problem generally. If you go back a couple hundred years or even more recently, you're a presidential biographer, people would just keep these trunks full of letters. And they would get published and things like that. And I just don't think that electronic communications are being retained in the same way. I don't think that we're going to see famous historical figures archiving all their text messages. And I don't think we're going to see published volumes of J.D. Vance's text messages in 100 years. So, I don't know. I don't have a solution or an answer.
Will: On the first question. I think we did learn a little bit during the Dobbs leak investigation. There's definitely still a ton of paper in the court.
Dan: Yeah, there's paper copies of opinions, right?
Will: Right. And draft opinions.
Dan: Yeah, that's what I meant.
Will: And one of the conclusions of the Chertoff investigation was maybe there was more paper than there needed to be and more unsupervised printers than there needed to be. So, it wouldn't shock me if post Dobbs leak, there's been a tightening of some kind on the paper just for that reason. But we know that at least until a couple years ago, there's still a ton of paper. I do think the executive branch deals with this all the time because the Presidential Records Act actually governs this.
Dan: Yeah. And it covers even tweets and stuff, I think, right?
Will: Right. So, my understanding is official emails are pretty well archived, but that when you get to other kinds of communications, it does get trickier. I think if you are a government official and you do text messages about your official business. You are supposed to then send copies of those text messages to the various archival accounts to make sure they collect them all. Given what we know--[crosstalk]
Dan: Which I'm sure doesn't happen consistently and certainly is not happening with Signal messages today.
Will: Right. I would say in a world where we have Signal ops groups, I'm pretty confident that not everybody in the executive branch is complying with this, and hard to imagine how they could realistically. So, we may just need either a technological, legal, or other solution if we care about that.
Dan: But in the absence of any Supreme Court Records Act, I don’t think that's likely to happen consistently.
Will: Yeah.
Dan: Maybe.
Will: And also, part of this is that the text message. Text messages sometime replace written communications, but sometimes the text message is not replacing the letter. It's replacing the oral conversation, much of which we've lost for the past two. We don't have the chats between Hamilton and Washington just in the hallway.
Dan: Yeah. And sometimes there's interactions between the two. I don't know if you remember, there was this issue raised when Justice Kagan was being considered for the court about whether she would need to recuse from the eventual challenge to The Affordable Care Act. And that turned in part on whether she had worked on those cases while she was Solicitor General. And she said she did not. And in the disclosed emails, there was an email from then Principal Deputy Solicitor General Neal Katyal asking her whether he could take on the case. And the email just said, “Call me.” And then the chain stopped there. So sometimes you see things like that.
Will: Yeah.
Dan: Do you remember that?
Will: I remember that. And in my life as a law firm associate dealing with document review, that was always a moment that came in the document review is when you had the somewhat suspicious email exchange, and then it ends with one of the two parties saying, “Call me” [laughs] or, “Delete this, call me” or there's a whole range of--“Let's take this to our Gmail accounts.”
Dan: They made you do doc review?
Will: Yeah.
Dan: Wow. I didn't have to do any doc review. I just wrote briefs and stuff.
Will: Well, you were fancier than I was, Dan. [laughs]
Dan: Decidedly not. That doesn't seem like the best use of your many talents, Will. I bet you were good at it though. You're a good reader.
Will: Arguably, I am a better law professor than I was a law firm associate, I will say that.
Dan: Yeah. But I'm not saying you weren't good at it. I'm just saying what is the highest and best use of your talents. I imagine if you devoted yourself to being a document reviewer, you would be excellent at it. But the world needs you elsewhere.
Will: The highest and best use of my talents is obviously podcasting. [laughs]
Dan: Some might think so. ChatGPT maybe thinks so. It listed us when I asked it about Supreme Court podcasts. We were one of the first that it went to.
Will: Isn't that pandering? I'm sure if somebody else asked it, it would give a different answer.
Dan: I don't know. Do you think it knows who I am?
Will: Of course, it knows who you are.
Dan: Why? Just from my account?
Will: Yeah.
Dan: So, I have a ChatGPT Pro subscription now because the listener, the mysterious Lucas, worked his connections to get me a free trial, free subscription for a while to ChatGPT Pro. It's pretty cool. You use it a ton, right?
Will: Yeah. Have you been liking it?
Dan: Yeah, I mean, I'm experimenting with it. I'm running some deep research, just more as proof of concept and less as something I'm actually relying on yet because it's still, when I ask it questions in the nondeep research format, I'm like, “Hey, can you find me cases that say X?” It tends to find me real cases, but fabricated quotes, when I go look at them, end up being useful. But I'd say it's pretty hit or miss. Deep research, looking at it about stuff that I know some stuff about it actually seems pretty good. I haven't found any huge glaring errors.
Will: I did have it a couple of times. I used it on areas where I knew the literature extremely well. Just as a test because when you ask to find articles on the political science research and the effect of campaign finance law on legislative behavior, it looks good, but I have no idea if it's actually finding the right stuff.
Dan: Do you check it? You don't just plug those into your article drafts, I hope.
Will: No, but you don't know what it's not finding, for instance. That's why I then had it do a lit review on the unitary executive and a couple other con law topics where I knew the literature very well and it found everything I would have, like it was great it found all the major things. It was great.
Dan: Yeah. It's a little frightening how good this technology is.
Will: Yeah.
Dan: Even with all its flaws.
Will: Yeah. You know, it's getting better at podcasts too, so.
Dan: Yeah. Yeah. I've heard the examples of the Google generated bro podcast.
Will: Yeah.
Dan: So, I guess we will one day be out of a side job.
Will: Is that our genre?
Dan: I don't know. Does this count as a side job?
Will: [laughs]It's uncompensated.
Dan: Yeah. So far, not getting-- [crosstalk]
Will: I consider this a public service activity connected to our main jobs. That's why it's sponsored by the Constitutional Law Institute.
Dan: They could call it public service. It's a little self-serving don't you think? It's not just a public service.
Will: What do we get out of it?
Dan: Fame, reviews, people being nice to us, positive feedback. And you like it. See, you're all about spreading the gospel of originalism. That's like what you're-- the thing in life that you care the most about, I think. I just like dopamine hits.
Will: One secret, Dan, is I actually don't care very much about constitutional interpretation.
Dan: [laughs]What do you care about?
Will: Law. [laughs]
Dan: Well, I mean, you certainly spend a lot of your life writing about constitutional interpretation.
Will: That's true.
Dan: And you don't care about that question at all.
Will: It's not that I don't care about it at all, but it's not that spreading the gospel of originalism is my highest even sort of scholarly ambition.
Dan: You seem to care about influencing people. What do you want to spread the gospel of? Just that law is good. You like law.
Will: Just like true propositions about the law of which originalism happens to be one. But we could talk about separability or qualified immunity doctrine or any number of other things.
Dan: Well, maybe that counts as a public service. I'm not sure, you know, if I'm doing this for selfless public service reasons. I don't make any such claims about myself, but if people think that, that's great. All right. Any other detours before we get to the actual meat of the episode? I feel like there's always little things that I'm forgetting.
Will: Yeah. Although if we manage to make it 30 minutes into the show without talking about any cases, it will cease to be a holy service.
Dan: This is going to be edited a little bit. I think this will probably be like the 20, 25-minute mark. So, we're doing okay.
Will: Okay.
Dan: So, I don't think we're actually going to talk about any cases today as such [Will laughs] because the Supreme Court doesn't really do much in the way of cases, at least if we understand that term to mean, like cases where they have cert petition and a grant and kind of like an oral argument some months later with briefs and opinion, some months after that, they do a few of those for old time's sake. But that's not really what the court is about these days. And I'm not even really exaggerating that much. I mean, so much of what the action of what the court is doing now is, I guess we're supposed to call the emergency docket now, not the shadow docket. I mean, the center of gravity has really shifted.
Will: Yes. The center of gravity has really shifted. I mean, it's especially shifted this year with the new administration and all of their unusual activities. But it's really shifted. I'm writing an article about the emergency docket, and I keep debating whether I can even have sentences like the courts unusual-- I can't even decide if you can still call it unusual to deal with something in the emergency docket or not really.
Dan: You were revisiting these questions.
Will: Yeah. And visiting new ones. When I wrote the shadow docket 10 years ago, many of these, the current practices didn't exist. And the most interesting thing was how little attention people paid to the shadow docket. Now we're all paying attention to it, and there are a lot of questions about how it works and whether the current equilibrium is sustainable and so on.
Dan: If I can flatter you a little bit, what do you think the debate would have looked like had you not given this phenomenon a name back in, what was that, 2013-2014?
Will: Yeah. Maybe 15. I don't remember what year. Yeah, I mean, look, maybe naming things literally doesn't matter. It's literally just terminological, but I do think it may have made it easier, especially for the press and other people who were not former Supreme Court clerks, to recognize this was a phenomenon that needed to be covered and discussed and so on.
Dan: Yeah, I guess probably somebody else would have given it a name at some point.
Will: I assume Steve Vladeck would have given it the same name.
Dan: Yeah, that's quite possible.
Will: Yeah.
Dan: Can I detour us for a second?
Will: Of course.
Dan: Okay. Kind of reminds me, when I was in high school, the philosopher Daniel Dennett gave the graduation speech. Not for my year, alas, but for the class one year ahead of me, [crosstalk] a very brilliant guy.
Will: Yeah.
Dan: And he talked about philosophy. He helped persuade me that becoming a philosophy major was something I would want to down the road. And his pitch was a lot of other people just take their questions off the rack, but philosophers have to go find their questions and come up with them. And he posed this question, would you rather be a scientist somebody like, you know, I don't remember the example he used, but maybe somebody like Watson and Crick, they find DNA. If they don't find DNA, someone else going to find it 5 or 10 years later. Or would you rather be Lamarck, who's wrong, but who's creative and who has this idea about how giraffes have long necks because they keep stretching and maybe that's an idea nobody else would have thought of in that way.
And he made the pitch that it's cooler to be Lamarck. [Will laughs] I don't know. I don't know what I think. Yeah, I don't know. To have an idea that nobody else is going to have, that's a different kind of contribution than to just be the person that is lucky enough to get to the thing first that is going to get found eventually.
Will: That's interesting. I really dislike the dichotomy, which was what makes it a good dichotomy, I guess, because in both cases, I think what you want to know is how much does that kind of thinker push the ultimate progress of knowledge forward?
Dan: Yeah.
Will: So, discovering something five years earlier than it would have been discovered otherwise pushes the timeline forward five years. So, now there's five more years to build on that. And if in some way the discovery of DNA is necessary to discover something that will save us from the AI apocalypse, the five years might turn out to matter. Lamarck, obviously, the failed ideas don't necessarily add a ton to moving things forward, although sometimes they do.
Dan: They can.
Will: But they can. But also, the whole set of people who had Lamarckian ideas, a few of which were correct, even if many of them were wrong, they might push things forward a lot, because each generation, we take the best ideas of the last generation and build on them and discard all the bad ones.
Dan: Yeah, my approach was to do neither, kind of just have hot takes.
[laughter]
That maybe other people could have, but don't push the conversation forward.
Will: So, this is my actual rule for both writing articles and even more for writing non articles like op-eds or other kinds of commentary is I ask myself, like, if I don't do this, will somebody else do something similar? There are times you have the opportunity to write an op ed about why this Supreme Court decision is right or wrong for reasons almost anybody would give in a similar posture. And I try not to do those. And I try to spend my time on things where I'm like, “If I don't write this-- the other person to write, it will not write it well.”
Dan: Yeah, I actually do follow a similar rule in my scholarship. I do try to come up with ideas that are not just catching the wave, but trying to think of scholarship as something that's a little bit between science and art. There's some creativity involved and you want to have some creative ideas that are maybe not going to be out there.
Will: Yeah.
Dan: We are going to revisit your op ed writing in a few minutes.
Will: Yeah. You can grade me. Tell me how I did.
Dan: On the Chicago scale.? What's the highest Chicago grade?
Will: 186.
Dan: Okay. What's the lowest?
Will: 150 something. 160 something. I mean, the low end, it goes-- [crosstalk]
Dan: It's a pretty big spread.
Will: To work grades, have to have a strong curve and a big spread.
Dan: Yeah. Okay, so let's get to that. Let's get to the thing that is going to lead us to your op ed. And I guess I have stalled enough that we didn't get to. We got to cases or got to a discussion of why we don't have real cases.
Will: Yeah. All right, so you want to talk about Trump v. Wilcox first.
Dan: That's probably the one to talk about, probably the one that listeners are most interested in and that people were hoping we would record an episode about many days ago that we didn't get to. And it's the one about which you wrote an op ed. So, let's hear it.
Will: Okay. “There is pending litigation about the President's attempt to remove several members of so-called independent agencies. Among them the National Labor Relations Board, the NLRB, and the Merit Systems Protection Board, the MSPB. Statutes say that the President is supposed to remove these folks only for cause for good cause shown. And the President removes some members of the Commission without even attempting to show good cause, whatever that is, thus producing litigation about whether he can do that. There's a case called Humphrey's Executor v. FTC where the Supreme Court ruled against Franklin Roosevelt's attempt to do that to a member of the Federal Trade Commission, Humphrey. And nonetheless, most people think Humphrey's executor is not necessarily long for this world.
So, the lower courts said, “Well, this violates Humphrey's Executor. Humphrey's Executor is the law. Therefore, we'll issue an injunction telling the President he has to leave these people in office until he can get Humphrey’s executor overruled.” And the President went to the Supreme Court and the Supreme Court disagreed and granted him a stay.
Dan: And say more about the opinion. So, the opinion said, like there's a per curiam Humphrey’s executor now overruled?
Will: Not quite. Although you could be forgiven for thinking that's what happened. So, it is an opinion on application for stay. It's not technically a per curiam. It's just an opinion on application for stay. [laughs] The application for stay is granted, then the opinion says on the merits because the Constitution vests the executive power in the President. See Article 2, Section 1, Clause 1. He can remove people without cause, subject to narrow exceptions recognized by our precedent. The stay reflects our judgment that the government is likely to show that both the NLRB and the MSPB exercise considerable executive power. We do not decide whether there's a recognized exception. That question is better left for resolution. But it reflects our judgment that the government's likely to win.
The stay also reflects our judgment that the government faces greater risk of harm from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty. Finally, the respondents argue that the arguments in this case will implicate the constitutionality of the for-cause removal protections of the Fed. We disagree. The Fed is different. It's a uniquely structured quasi private entity that follows in the distinct tradition of the first and second banks of the United States. See, Seila Law, footnote 8, which does not say that [Dan laughs] therefore stay is granted.
Dan: Okay. There's a lot going on there.
Will: Yeah. But basically, the President's likely to succeed on the merits. There is some kind of a balance of harms reason in addition to grant a stay. But don't worry, the Fed is safe.
Dan: Okay.
Will: And then Justice Kagan dissents at length.
Dan: I mean, not at that much length. I mean more length than that little opinion, whatever you want to call it, is she's eight pages kind of reasonable.
Will: Right. So, I wrote that night, within a few hours after briefly arguing with you about the decision on the phone.
Dan: Well, just to be clear, I was just taking the position this is a quite big deal and maybe one of the most significant shadow docket rulings ever. And your position was this is nothing basically. Your position was, this isn't even the biggest deal, like this week.
Will: Yes. So, I wrote an op-ed in the New York Times that begins the following way.
Dan: Can you do the title first though?
Will: I forgot the title.
Dan: I know, I know, but it's still.
Will: The title they went with is The Supreme Court Ruled in Favor of Trump and That Is Okay. It's not a bad title.
Dan: It sums up what you said, right?
Will: Yeah. No, they know how to troll their own readership. [laughs] So, the comments are pretty extraordinary. It is a sign of the times that the Supreme Court might have just used its emergency docket to all but overrule an important precedent limiting executive power. That precedent is Humphrey's Executor, a new deal era case establishing the constitutionality of independent agencies. In a surprising twist, its decision to do so was both predictable and reasonable. So, it's both a big deal, but also not a big deal. That was my conclusion.
Dan: The fact that something is predictable doesn't mean it's not a big deal. Reasonable-- I think that means you agree with it on the merits?
Will: Okay, so I'll just say, I am on the fence on the overall unitary executive question, overall. I think on balance, the unitary executive arguments are stronger than the contrary arguments. But the strongest contrary argument is Congress’s Necessary and Proper Clause power gives it substantial authority to decide how to structure offices and including to say that if this officer is going to exercise executive power, it has to be under various conditions. So, I think that's a close question, but I'm inclined mostly on liquidation grounds to agree with the unitary executive side. But whatever side that you have-- [crosstalk]
Dan: So you don't think there's any kind of liquidation argument that we've been doing it this other way for nearly 100 years.
Will: I don't think we've ever been doing it the other way, really.
Dan: I mean, we've had independent agencies, the limits of removal, for which the presidents have been respecting for a very long time.
Will: I mean, I think the extent to which independent agencies are independent is pretty weak in practice. The for-cause removal is pretty weak. It's not clear how much presidents have really respected them. The total number of cases that actually say a removal was improper is something like two.
Dan: But I mean, that's because those cases don't get presented every day.
Will: Yes, right. But there are two reasons-- [crosstalk]
Dan: Has any President before this said, “I'm removing this person and I explicitly, I'm going to tell you I don't have cause.”
Will: I agree that's rare. I'm just not sure that what's doing the work is some sort of constitutional norm. Like for instance, Jerome Powell, the Chair of the Federal Reserve does not have for-cause removal protection. It's quite clear legally that who is the chair of the Fed is subject to presidential at will decision making. And yet he's clearly protected by some kind of an independence norm. That means Trump feels like he can't just push him around in the same way as other people. And I think from what I've read, that seems to be a big part of what's going on with independent agencies to the extent they have any independence. But you could argue this the other way. That's part of why I think I don't have a strong view that the unitary executive is the only reasonable position. I just think it's a reasonable position and probably the stronger position from everything I've read.
Dan: Yeah, but I mean there still would be a stare decisis rationale, right?
Will: Sure. Although it's again, so we have Humphrey’s Executor and then ever since Humphrey's Executor, the court has really reinterpreted and or limited Humphrey's Executor in different ways. So, in Morrison v. Olson, another case where the court upholds some limits in the entire executive, it does so only by sort of totally changing the rationale of Humphrey’s Executor. And then starting in PCAOB v. Free Enterprise, the court starts to narrow Humphrey’s Executor. And by Seila Law, the court recharacterized Humphrey’s Executor in a way that made it clear that Humphrey’s Executor was basically dead. So, part of the project of the op-ed is to say they're perfectly good arguments. Maybe they shouldn't have done that in Seila Law. But given the Seila Law, this is just obviously where we've been going and a reasonable place to go given that.
Dan: Yeah, you could still argue that if you're going to do it, it would better to do it in an opinion that's more than two pages, maybe have briefing, oral argument, just go through those motions.
Will: Sure. Right. So that's one of the other questions is, is it wrong to overrule Humphrey’s Executor on the shadow docket?
Dan: Without saying you were doing that.
Will: Well, and that's where-- so the court doesn't say it's doing that. What the court says is “We have to decide who we think is likely to succeed on the merits. We think the President is likely to succeed on the merits.” And, of course, part of the reason they think that is because they have narrowed Humphrey’s Executor and intend to narrow it further.
Dan: But I mean maybe they should have to go through that analysis in a little bit more detail.
Will: Well, this is always the debate is how much the more analysis you go through on the emergency docket the more you then might say, “Well, now you're effectively deciding the case in the emergency docket,” so I think the court--
Dan: You don't think they're doing that here?
Will: They do as much as you could want them to not totally decide the case. They say, we think presumptively the government is likely to show this but there is a possible counterargument here. We're not sure whether that counterargument will work. That question is better left resolution after full briefing an argument but that's where we are right now and so like as of now that's our judgment of this. I also think, and this is maybe a thing that got me the most skeptical mail. Even if the court had overruled Humphrey's executor on the shadow docket that's kind of fine because [chuckles] the thing you worry about, the thing I worry about in the shadow docket is the court making knee jerk decisions where upon further briefing argument they're going to come to a different conclusion. But they've thought about this repeatedly. They've had extensive briefing with this already. This is not a case where there's any reason to believe that further briefing is going to matter except maybe for helping them come up with exactly how to phrase the rationale for why they're preserving the Fed, which we can talk about in a minute but this is just not the case where any of those worries are present.
Dan: I suppose so. I do think there's maybe some symbolic value to look, like, you're at least really taking the case itself seriously on its own merits and really giving it full dress review.
Will: Although sort of symbolically the fact they symbolically didn't overrule Humphrey's Executor ought to check that box. They did the right thing symbolically and they did the right thing-- [crosstalk]
Dan: Unless you think they're being disingenuous.
Will: Well, okay, but [chuckles] symbolism is often disingenuous. I mean even if they had full dress briefing and then we would complain that while it was disingenuous they had full dress briefing because in fact, they'd already made up their minds.
Dan: I mean, you could make that criticism of just having argument at all in the court, but I think that there's a certain amount of respect that should be paid to decisions of this magnitude.
Will: Yeah, I think Humphrey's Executor has gotten a ton of respect and when it gets its final burial, it will be a very ornate one.
Dan: Yeah. I mean, some of those cases didn't even have all of the current Justices on them. Right?
Will: It's true that Justice Barrett was there for at least Collins. I forgot whether she was there for Seila Law. It's true Justice Jackson should be given a fair chance to repudiate her predecessor's views of Humphrey’s Executor and come around to the unitary executive, that'd be interesting. So far she hasn't shown any signs of doing that.
Dan: It just strikes me as a weird argument to say, “Oh, we don't need to go through the motions here because they thought about it in some other case a while ago.”
Will: Right. Well, they're going to go through-- It's not that they don't need to go through the motions. It's more like they've gone through the motions here. Now, we could complain they're only going through the motions that in fact the fix is in, and that's true. But the fact that the fix is in and they're only going through the motions doesn't bother me. This is a case where all that's left is the motions and so they're going to go through them. It seems really weird to say we all know we're going to overrule Humphrey's Executor. But in the meantime, we're going to force the President to work with members of his administration who in fact will have the power to remove, I don't know, for ritual's sake.
Dan: Unless you think that President should stay it until the court actually goes ahead and does the work to overrule it and defends that choice, everybody.
Will: Sure. So, Seila Law said, which was amazingly disingenuous, but it said, it was that “The Humphrey’s Executor exception is limited to agencies that don't exercise significant executive power.” And to be fair, Humphrey's Executor was also disingenuous. So, Humphrey's Executor says, “Look, the Federal Trade Commission's not like really executive.”
Dan: Yeah. Quasi-judicial, quasi legislative. I mean, it's not a well-reasoned opinion, at least by 21st century standards of legal reasoning.
Will: Or even by 20th century standards. So, 10 years earlier, the Court had this very long opinion in Myers v. United States where it explains the President has the power to fire a postmaster without limitation because the postmaster is part of the executive branch. And they go all the way back to the founding and talk about all the standard arguments. And there's a separate opinion that makes the standard argument any Justice could make, but it's a long, serious con law argument. And they conclude the postmaster's part of the executive branch. Then, less than 10 years later, the Court says in Humphrey’s Executor, while the Federal Trade Commission, that's not executive the way that the mailman is, which is weird.
Dan: [chuckles] Yeah.
Will: But as they say, and so Seila Law says, “Well, apparently the exception is limited to agencies that don't exercise real executive power.” Now, I think Justice Kagan says that can't be true because the Federal Trade Commission in fact exercised significant executive power. And the majority says, “Well, yeah, so maybe Humphrey’s Executor won't even be true as applied to the Federal Trade Commission,” today or even taking it more seriously. But that's where the test has been reset as of five years ago. So, it's not that a big surprise that the NLRB and the MSPB exercise executive power.
Dan: Yeah, there are some possibly interesting distinctions, just looking at the briefs. And the MSPB members can act unilaterally, which is interesting.
Will: I mean, on the other hand, the NLRB does things that you might more classically think of as enforcement. Like the NLRB brings enforcement actions. They decide you're acting illegally and then they come after you. MSPB doesn't exactly do that. It's not like enforcement in that sense. You can imagine lots of places to draw the line. And I'm sure that when the Court does get its full briefing and argument, I'm sure we'll go through all that. I think the lower courts still haven't actually resolved these cases on the merits either. This is all just the stay applications. It'll be a little while.
What I was going to say is the broader theme here is also some of the things that are happening in the emergency docket are things that are weird and that are only happening because Donald Trump is the President, like the A.A.R.P. litigation and the DOGE litigation. And this is not that.
Dan: I don't agree with that.
Will: I gave a talk in the first few days of the Trump administration about sort of, “are we in a constitutional crisis” where I tried to level set it was to a group of college students here at the Institute of Politics. And I said, “Look, you all have to understand, Humphrey's Executor is going to be overruled in the next four years. That is going to happen. That would happen no matter what Republican was the President. And that is not a constitutional crisis. You can argue whether it's right or wrong. It could be wrong. But the thing you should be watching for are the more unusual things and how the system responds to those things.”
Dan: Although I don't think every Republican president would be as aggressive about firing people.
Will: Maybe not.
Dan: I mean, certainly previous Republican presidents have not been. Certainly Trump 1 was not, right?
Will: No, it's true. In retrospect, Trump 1 was shockingly reticent about it. He was stuck with this special counsel investigation that he was fully empowered to stop if he wanted to and couldn't bring himself to pull the trigger.
Dan: Yeah. I mean, that was in part because I think Congress was much more interested in applying some brakes. I think as far as we can tell, Congress is not really reining him in at all right now.
Will: I think it's part of that. I think we now know from the reports that he did at various points order the attorney general to fire the special prosecutor and then the attorney general didn't. And he didn't then just try to say, “Well, I'm doing it myself under Article 2,” or he did eventually fire one of his attorneys general. So, it could just be a different sense of command of the office that's changed. But I take your point. I still think this is a totally normal and totally predictable constitutional thing. And I guess, I think-- [crosstalk]
Dan: Again, I mean, if it's just something that hasn't needed to happen for nearly a century, I'm just not sure it's totally normal. It suggests that the presidency, Republican Party has moved significantly. I don't know if the right-left is the right axis to talk about, but it's moved in a much more aggressive direction. Unsettling settlements that had seemed stable for a very, very long time. Is that normal? I don't know. I don't think it's normal in the sense of the way politics has worked for the last, nearly century, right?
Will: Well, it's normal destabilization. I guess again, it's a change. I don't disagree with you that it's a big deal. It'll significantly change that chapter of our casebook, but it's also in a different sense, again, in a way that's different from Abrego Garcia or A.A.R.P. or some of the weird stuff that's happening. It's a more orthodox constitutional revolution.
Dan: I'm just not sure any other Republican presidents we might have had would be firing people like the members of The Merit Systems Protection Board or the Librarian of Congress and trying to either to replace them with cronies, which I think is a fair way to describe a lot of the appointments that are being made by this administration or intentionally depriving an agency of the quorum, which is what's happening. I can't remember if it's the NLRB or the MSPB now that's going to happen to as a result of this.
Will: Yeah. It might be the case that it's an unusual presidency, but I think conditional on the president removing whoever for whatever reason any Republican SG's office would make the same arguments that this is totally allowed and it's time to overrule Humphrey's Executor.
Dan: Sure, but that's a big condition.
Will: Yeah, but that's the thing that the court is now dealing with. That's the part of it, I guess. I mean that's less exceptional. And I do think, at Chicago we believe in the efficient markets hypothesis. So, I do think there's a way in which if it's predictable, then at some point it's kind of priced in to my understanding of the Constitution already even if it hasn't happened yet. I was buying shares of Humphrey's Executor will be overruled before 2026 on manifold a long time ago.
Dan: Is that a real thing?
Will: Yeah.
Dan: Like how do you do that? It's just like a website. You can--
Will: It's one of the prediction apps. It's the prediction market app I use-- [crosstalk]
Dan: Is it legal?
Will: Because it doesn't require-- Yeah, you don't have to use like crypto. It doesn't involve real money. You just get like points.
Dan: Oh well, where's the fun in that?
Will: That's where all the fun is, Dan. [laughs]
Dan: I was going to ask you how much did you put down?
Will: Yeah, I put down like several thousand [unintelligible [00:50:52]. The problem is that because it's points and not money, it's less reliable than the ones that fall for your money.
Dan: What odds was a given?
Will: I don't remember. The hard part is really the timing. Like when is Humphrey's Executor going to be overruled.
Dan: Yeah.
Will: For a while there was a suit against the FTC brought by Walmart in the-- I forget, maybe even in the north district of Illinois. That I thought was going to be the natural test case for this, where Walmart was going to argue the FTC lacked any power under Seila Law. So, I thought that was the vehicle and I was following it. I didn't have this particular mechanism predicted.
Dan: All right, Will, I think you're likely to cash in on that. Sorry, it was before 2026 was the bet?
Will: I think it's by July 1st, 2026. So, the end of the OT 25.
Dan: Do you think that will pay off?
Will: It was tricky because the DC Circuit might take a while.
Dan: Yeah.
Will: Especially, if they're going to, like, go on [crosstalk] and write long opinions about how this is-- yeah.
Dan: Yeah. Although it still seems like the thing to do if the DC Circuit is to say, “This is not allowed under Supreme Court precedent. Supreme Court, you're welcome to overrule this.” We think they probably will but it's not. The Supreme Court has said that lower federal courts are not supposed to predictively overrule Supreme Court precedent.
Will: They have said that.
Dan: Yeah.
Will: It doesn’t make sense to me.
Dan: Yeah. Even though there's no consequence for them doing so. Let's say it's clear a case is going to be overruled and the lower court says, “It's clear this case is going to be overruled. So, we're not going to follow this precedent.” And then the case goes to the Supreme Court. The court is like, “You should not have done that, affirmed.”
Will: Right.
Dan: Yeah. Kind of pointless.
Will: So, will the Supreme Court overrule Humphrey’s Executor by August 1, 2026, is currently trading at 82%. As of early April, it was trading at only like 40%.
Dan: Okay, but those both seem reasonable. I think I would have bought at 42%.
Will: Yeah. At 42%, I thought, this is clearly underpriced. Again, the timing is a little bit of a question. Will they get it done by 2026?
Dan: August is good because if it was July 1st, sometimes the term slips until early July. So, you could have really gotten screwed on that one.
Will: Yeah. You have to read the resolution terms very carefully for some of these because they don't always mean that the loopholes are where the [crosstalk] is.
Dan: Well, I wish you had some money riding on that, but I guess just pride.
Will: There was earlier a market-- last year there was a market on manifold, “Will the Divided Argument podcast mention a manifold market this year?”
Dan: Is that true?
Will: Yeah.
Dan: Really?
Will: Yeah.
Dan: Why wouldn't we--? I mean, if there was money at stake, we could have just put our retirement savings and then just--[crosstalk]
Will: Oh, my God, there's no money at stake, so you can't make money that way. Yeah, I meant to-- No, somebody else created it because I think we talked about prediction markets and stuff before they could tell we’re the kind of guys who might talk about them. And I think I meant to invest a bunch of money in the market and then mention it on the show before the end of the year, but I forgot.
Dan: Wow. Yeah, it seems strange to have a prediction market running where one of-- the only people who can actually directly control the outcome could easily participate.
Will: Yeah, that could be-- but then people are just trying to guess. Then the market is trying to predict our own behavior.
Dan: Yeah. Although, I mean, if there was actual money at stake and it was a question that was entirely under our control like it would be rational for us to just put all of our wealth into that and then control the outcome.
Will: Yes, but other people who also put all their wealth on the one that we did would profit.
Dan: Yes. I mean, but no one should take such a bet, on the other side of the bet.
Will: That's not clear.
Dan: Well, it seems like the odds that you're going to be the sucker are high.
Will: Right. But you don't know which side is the sucker's side.
Dan: Yeah. Sure. I would not want to bet into that. Okay, more to say about this. We've got a couple other shadow docket things to talk about, although maybe less to say about those.
Will: So, a couple days before Trump v. Wilcox, there's another very interesting shadow docket ruling. Libby v. Ryan M. Fecteau, Speaker of the Maine House of Representatives. [crosstalk]
Dan: Yeah, this one is quite interesting. This is the case that you said that came out that week that was the bigger deal.
Will: Yes. [laughs] So, the long and short of it is Laurel Libby is or was a representative in the Maine legislature. She is very concerned about transgender participation in women's sports and put up a Facebook post complaining about a particular individual who competed in pole vaulting. I think first as a man and then later as a woman. This person's underage and she had a Facebook post describing this person and saying it was not fair. So, she was sanctioned by the Maine legislature under their ethical principles, I guess. I think under a rule about endangering a minor. Some people would call this doxing, although I'm not always sure when naming and criticizing people is doxing and when it's not. But in that category, and you can imagine the ways this politicized the individual pole-vaulting matches involved.
Will: And she was told she had to take down the post and/or apologize, and she refused. And because of that, she lost her ability to do anything, like vote on legislation as a legislature.
Dan: Yeah. And I will say at the outset, I actually think that was a quite disturbing decision. I generally-- crosstalk]
Will: [crosstalk]
Dan: Yeah. I don't think that legislature should be ordering their members to not speak in certain ways or else they lose their right to participate. That seems deeply undemocratic to me.
Will: Well, is it the rule or is it the sanction? Do you remember a couple years ago when Elizabeth Warren was sanctioned in the Senate for saying something mean about Jeff Sessions, and then she kept talking-- [crosstalk]
Dan: Nevertheless, she persisted.
Will: Yeah. And then she got to sell a children's book about it and all that. I mean, the Senate has all these rules of what you can say. I think it's still a rule that senators are not allowed to disparage-- [crosstalk]
Dan: Refer to each other. Yeah.
Will: Yeah. There's an old version of this where some senator tried to say that held somebody else in low regard, and then he totally couldn't say that. So, he said, “I hold him in the lowest possible degree of high regard,” because that's okay. Or there's the whole issue about John Fetterman refusing to wear pants.
Dan: Just to be clear, he's not going around his underwear. He's just wearing shorts.
Will: He's wearing shorts. And I think they sort of have a workaround where he can vote in shorts as long as he stands in the doorway and sticks his thumb in the room, then that's okay. I mean, I'm wearing shorts to record this podcast right now, and maybe in a free society, that's fine, but the senate is trying to have a civilized institution. But you're more concerned about the sanctions, right? That if we told John Fetterman that “If you don't wear pants, you can't vote,” that would be another thing.
Dan: Yeah, that seems a little disturbing. It also seems like those at least, are content neutral rules, and it's not obviously you can imbue it with that, but it's not necessarily a political statement one way or the other. Saying that you have to wear pants is not necessarily enforcing orthodoxy on one side of a very disputed current political issue.
Will: I think whether men should wear shorts is a big issue.
Dan: Not in the same way.
Will: Okay, fair enough. Well, Laurel Libby persisted in that she went to federal court and tried to demand that she be reinstated, I guess. And the district court and the First Circuit declined to do that. But the US Supreme Court granted her injunction pending appeal and said that she gets to go back to voting in the Maine legislature until this case is eventually resolved. So that's presumably reflects their view this is probably unconstitutional and so she's going to win.
Dan: Yeah. Although you could make an argument that the irreparable harm argument really cuts in one direction. It's a much bigger harm for her electorate to be functionally disenfranchised than it is for-- she not to be punished for her speech until later.
Will: That's true. And in this case, unlike in Wilcox, the court did not explain its grant of the injunction. So, it didn't say, “I think we know it's supposed to represent their view that this is likely to be cert worthy and she's likely to prevail on the merits.” But they didn't spell out the balance of those things. So unlike Wilcox, this is not like an issue where there's a ton of case law and it's obvious this is the way it has to come out. There's a lot of reason to think that legislatures get a lot of discretion over admitting and disciplining their own members.
There are some cases from the civil rights era, I think Bond v. Floyd is the most famous one, where the court did reverse the Georgia House of Representatives decision to exclude somebody because they thought that the legislature was applying a viewpoint-based test. So, she has some precedent on her side. But exactly how that applies after 70 years, how we make sense of that, there's no harm for the executor. That's sort of why I thought this was a big deal.
Dan: It is striking and certainly less predictable in that sense.
Will: Right. And I guess, the case where it's like 15 years ago, it is unthinkable the Supreme Court would have granted emergency relief in this case. They might well rule on the merits in this case eventually, but that they would-- [crosstalk]
Dan: Although we don't know whether they're even going to take the case. It's an interesting thing.
Will: No. Although we know from Justice Kavanaugh and Justice Barrett have said in Does v. Mills, they should not grant injunctions pending appeal under the All Writs Act unless the case is cert worthy because you shouldn't be able to use the All Writs docket to force the court to rule on things that it wouldn't reach on certiorari docket. So, if they are applying that principle, they at least think the case is potentially cert worthy.
Dan: Yes. Although that doesn't get you to four votes.
Will: It kind of does.
Dan: Well, I mean, it depends whether they are conditioning their vote on the agreement of other Justices that the case is cert worthy or they're just applying their own standard of whether it's cert-worthy and deciding how to vote, right?
Will: Right. But if Justice Barrett and Justice Kavanaugh want to grant cert and reverse in this case, I bet they could find some others. They're sufficiently close to the center of the Court.
Dan: Yeah, I mean, fair.
Will: That's part of what-- [crosstalk] but yeah, so we'll see. But just the fact that the Court took some time, maybe a month or so to dispose of this case. And there were multiple posts on various blogs and sites about how it was outrageous the Court was taking so long. Why would they decide if it's faster? Does this mean the Court cares more about Venezuelan terrorists than they do about democracy and so on? And the fact that we've at all approached that level of expectations is just a sign of how much the emergency docket has become the docket, sort of what you started with.
Dan: Yeah, that seems certainly right.
Will: Yeah.
Dan: But in terms of its far-reaching implications, this one is small ball, I think, compared to Wilcox.
Will: I guess I'm not even sure about that. It depends a little bit on how much--
Dan: Do you think these issues arise every day.
Will: Well, not that long ago, several people were kicked out of the Tennessee legislature for various forms of disruptive behavior. I mean, there's all sorts of shenanigans in state legislatures. And if this means that all state legislative discipline of one party by another party is now going to become a major federal issue, that could be a big deal.
Dan: Yeah. Do you think the Court--[crosstalk]
Will: Could be potentially a bigger deal than the fact that the NLRB, which probably wasn't going to do anything anyway, isn't going to do anything.
Dan: Do you think the Court would apply the same? Assuming the Court seems to have taken the view that it can superintend state legislative rules, do you think it would take the same view of Congress?
Will: That's a great question. I mean, there is a case like Bond v. Floyd. There's a case called Powell v. McCormack where the court from around the same era where the Court does that, the court validates--[crosstalk]
Dan: With qualification and admission.
Will: Well, right. Congress votes to not to seat Adam Clayton Powell. They have enough votes to expel him, but they label their vote an exclusion vote rather than expulsion vote. And the court reviews it. I would think when it comes to Congress there'd be a little more of the political question concern. But I guess if Congress did something like this, if the Democrats take the House and then kick out Marjorie Taylor Greene for being a whack job, I guess it's totally plausible if the Supreme Court will feel they need to intervene.
Dan: Do you think the court would have intervened had Elizabeth Warren sued for being punished for persisting?
Will: What was her punishment? Was she just reprimanded and then allowed to write a children's book?
Dan: Yeah, I don't remember. I don't think she was functionally expelled until she wrote an apology note or something.
Will: Right. I guess if Elizabeth Warren was not allowed to vote on any matter for an indefinite period of time until she stopped persisting, I mean, am I naive to think, yeah, I mean, even though she's a Democrat, the court might have had the same--[crosstalk]
Dan: Yeah, it is possible.
Will: Now this could also be a one off. You could imagine that the court ruling this way once will be a lesson to state legislatures like, okay, there's a line here, but then they won't feel the need to regularly police the line as long as the legislatures are a little more careful.
Dan: That's possible. I don't know.
Will: But I stand by my view. This is in some ways the bigger case.
Dan: And we do have a five-page opinion from Justice Jackson, who I think is the shadow docket injunctive relief standards hawk right now. [Will laughs] Would you say that? So, she says various things. She says, “The applicants have failed to show their critical and exigent circumstances necessitating intervention in aid of our jurisdiction. The First Circuit is moving really quickly. The applicants haven't satisfied a normal cert factors such as the need to resolve a circuit split. They fail to demonstrate that their right to relief is indisputably clear, which is something that the court has suggested in the past is required. So, basically pushing this idea that there are standards that govern the issuance of this emergency relief that the court is not following.
Will: Yes, I agree.
Dan: Whether those standards actually remain, I'm not sure.
Will: Yeah. And I will say part of the inspiration for am I trying to return to this in an article which may take a while, she cites a bunch of different cases, a bunch of different standards, but I'm not sure all the standards make sense together even exactly. And I think it's not totally clear what the standards are these days. Is it required that relief be indisputably clear? If you trace this back, it's a little bit of a mystery.
Dan: Yeah. And you're certainly not getting per curiam opinions most of the time that they say anything one way or the other. It is a little frustrating that we get these things and we have unsigned one-line orders and then these long dissents. I think it wouldn't kill the Court to write at least a short opinion, explaining, is this all about irreparable harm? Is this all about merits? Are they going to grant cert? I don't know.
Will: I'm with you. And although I do think sometimes the truth is the court doesn't know.
Dan: Yeah.
Will: There's one model for judging the Court's emergency docket behavior, which I think of as the Steve Vladeck model, where you think there are rules for this kind of thing and whenever the Court violates the rules, you call them out and criticize them for that because that will help them be held to account and be more consistent applying those rules in the future. Another model is that there aren't quite rules. It's a little more like equity. And the Court is feeling its way through. And then sometimes out of that emerge rules and patterns, but sometimes not. And so, I'm not sure the second thing is good, but I do think the second thing is kind of the way it's operating right now.
Dan: [crosstalk] I mean, I guess to me they boil down to the same thing. I guess, even if there aren't rules, to the extent the Court is just exercising case by case equity, if they are doing so in a fundamentally unprincipled fashion or fashion that seems to reflect ideology more than we expect the Court to, or something like that. I think it's still subject to criticism, and I think that was your original criticism to some degree of the shadow docket that they're not following normal procedural regularity. Isn't that the title of our first or second or third episode?
Will: Yes, I agree with that. And I do think they're definitely all subject to criticism. But I guess one view, the rules are should be known ex ante and the Court is applying them kind of the way. On another view, the rules themselves are more like emerging as a matter of judgment. So, I definitely agree that if after this, when they try to take Elizabeth Warren's vote away if the Court doesn't treat that in sort of parallel fashion or have a very convincing explanation why not, that'll be very troubling and we criticize it. But that's in the second category. The fact that here they didn't tell us how much of the work was being done by irreparable injury or whether there was an indisputably clear standard, that might just because they actually don't know. In that sense, it's sort of like cert. The court has some principles for why it grant cert, but sometimes they don't quite know why they're granting cert. Other than this seems important.
Dan: Yeah. That seems a little bit less troubling because all cert is really saying is we want to think about this more, whereas this is we're doing a thing.
Will: Right. But since cert worthiness is one of the factors in doing this thing, I mean, this is part of the problem.
Dan: Yeah. Although, I mean, so it remains to be seen whether they do grant cert. I guess maybe it depends on what the lower courts do.
Will: Yeah. And what the Maine legislature does. Like the Maine legislature might now just give up.
Dan: Yeah. Yeah. Maybe it gets mooted.
Will: Yeah. All right. Big deal.
Dan: One last one to discuss Noem v. Doe. We're a little short on time, but maybe we should just briefly discuss this one has certain similarities to the last one because it's another case coming out of the First Circuit, actually, where the court grants a stay and does not explain. Just another one of your classic couple lines. And then again, we have a Justice Jackson dissent joined by Justice Sotomayor, not by Justice Kagan, which is also true of Libby. Libby is interesting. Justice Sotomayor noted she would deny. Justice Jackson dissented nothing about where Justice Kagan is. Likewise, we have those two Justices dissenting nothing about where Justice Kagan is. So, you wonder, does she agree? I'm a little skeptical she fully agrees to the majority.
She may be trying to play a little bit more of an inside game. And I think we've talked about this in the past about how she is, of the Justices, one of the least active on the shadow/emergency docket. I mean, she obviously, writes stuff sometimes, given that we've already talked about one of her dissents today, but I think she extremely rarely, if ever, writes dissents from denial of certain things like that. She seems to spend more of her energy maybe working on merits opinions and maybe working on the internal politics of the court, although we know less about that.
Will: Yeah. And when she does, my impression is Justice Kagan is more in the case-by-case approach to the emergency docket that she doesn't seem to subscribe to as many maxims of how the discretion has to be exercised in terms of the Justice Jackson points. And so, she might therefore think, especially she's unlikely to sign on to a dissent that's hawkishly maintaining there are these eight different standards. I have to admit, she might just think it depends on the case. Anyway, so Noem v. Doe is an interesting immigration case about the suspension, very important suspension of parole of maybe half a million immigrants who are paroled into the country under the CHNV program.
Dan: Yeah. And so, this case basically gives them temporary permission to remain in the country and protection from deportation. And I guess some of them are even allowed to work. And Trump administration, these are folks who have fled their home countries, they specifically are alleging some threat of violence or persecution. And the Trump administration wants to revoke that status and presumably begin deportations.
Will: Yes. But then there's a question of whether she can revoke that status en grosse or has to make case by case determinations, which would be harder to do for half a million people.
Dan: Yes, it would take some time.
Will: But she sought a stay and prevailed.
Dan: Yeah. And so again, no explanation. Why do we do this? Dissent from Justice Jackson and again, some of the same points about we should be not just doing the merits in these emergency cases, we should have standards. This should be extraordinary, etc. I thought she does get some good licks in about this point about irreparable harm. I mean, there's a lot of people here, if they are deprived of the status and get deported, that is a huge, life changing, disruptive, kind of terrible event for them. And on the other hand, I guess the reparable harm is just not letting the executive branch do what it wants to do.
Will: Right. I imagine in some contexts the administration might say they think that the presence of a lot of immigrants in the country is a harm, but I don't know if they want to actually prove that on either individual or class wide basis. And so, there is sometimes this maxim in these emergency docket cases that basically anytime the government can't do stuff the government wants to do, it's an irreparable harm, or at least if it's stuff the government's allowed to do and the courts are stopping it from doing it, that's an irreparable harm. The court said that most clearly for laws like anytime a law is enjoined that shouldn't be enjoined that's an irreparable harm.
It's not as obvious that extends to executive branch action, but I think sometimes you see it extend, and that may be another pathology of the current emergency docket, because then often there's going to be irreparable harms on both sides. So, then we're just stuck with the merits, and then we're stuck trying to figure out the merits on an expedited timeline, which is not great.
Dan: Yeah. But I think you would at least agree that the stakes here for the people whose status is trying to be deprived is quite significant. It's a lot of harm at stake if they're being potentially sent back to countries where they are going to suffer persecution.
Will: Yes, I completely agree with that. Now, I think some people in the category are not going to suffer persecution in their home country, even though they very much will be much better off here than in the other country. So, we have to decide whether to differentiate those two things. One might be more irreparable than the other. But again, that's part of the problem with doing this in a classical space.
Dan: Does this feed into the discussions that came up in Trump v. CASA, the kind of universal injunction case where, as I understand it, in the lower courts there was relief awarded to a putative class?
Will: I think it feeds in some also to the general questions, as of like class-wide versus individualized determination making and immigration, which feeds into some of the habeas terminations.
Dan: Yeah, we talked about that several weeks ago.
Will: There was also a similar stay the court granted about the revocation of temporary protective status, but where it had this caveat that the people could make individualized challenges based on the effective dates of various documents they've received and so on. Anyway, there's a lot going on the emergency docket and as you said, Dan, not a lot going on in the merits docket. I wanted to get you to talk about the NEPA case, but I don't think we are going to have time.
Dan: Yeah. And I didn't have time to read it, but I'm not sure I ever will. But maybe I'll take a look before next time. We'll see.
Will: Well, I'll just say it appears to be the case that Justice Kavanaugh has maybe been reading the abundance literature, the people complaining about procedural things getting in the way of our ability to just do things. There's a nice general statement that judicial review of NEPA compliance has gone way overboard and courts need to cut it out or reset. So, the last sentence of this section Part A of the Court's opinion is, “The bedrock principle of judicial review in NEPA cases can be stated in a word, ‘Deferrence.’” I also like because sometimes courts say in a word and the thing that follows is not a word--[crosstalk]
Dan: It's a full sentence. Yeah.
Will: So, kudos to Justice Kavanaugh for knowing that deference is one word. Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks for the reviews we've recently got to help encourage us and help people find the show and drown out the haters.
Dan: Check out our website dividedargument.com for transcripts of episodes, store.dividedargument.com for merchandise, blog.dividedargument.com for our blog, where we have extended discussions of some of the stuff that have come up today, like whether the Fed's removal protections are going to remain after the Wilcox decision and what that might look like. Send us an email pod@dividedargument.com, leave us a voicemail at 314-649-3790 and if there's a long delay between this and our next episode, it will be because the Maine legislature has deprived us of our ability to speak.
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