After grappling with listener feedback ranging from the acoustic to the typographical, we catch up on last month's decisions in Great Lakes v. Raiders Retreat Realty (admiralty) and McElrath v. Georgia (double jeopardy). We then turn to last week's decisions about public officials on social media, Lindke v. Freed and O'Connor-Ratliff v. Garnier, and then finally to the statutory interpretation decision in Pulsifer v. United States. It's a lot of cases in just over an hour!
After grappling with listener feedback ranging from the acoustic to the typographical, we catch up on last month's decisions in Great Lakes v. Raiders Retreat Realty (admiralty) and McElrath v. Georgia (double jeopardy). We then turn to last week's decisions about public officials on social media, Lindke v. Freed and O'Connor-Ratliff v. Garnier, and then finally to the statutory interpretation decision in Pulsifer v. United States. It's a lot of cases in just over an hour!
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Sorry, I didn't really have a kind of funny lead-in thing. I'm off my game. We've been on spring break and I'm not quite there yet.
Will: We've also gone an unusually short time for our last episode. So, you're not quite--
Dan: Yeah, I need that month to kind of really build up that intro. Yeah, we got an email last month from listener, Ryan Davis, who said, "Hear me out. What if you kept doing the podcast you're doing but made it well scheduled? And so, at least in that sense, predictable. Just talk for an hour a week. That way, you can continue following conversational threads over time, answer more callers, etc. Yeah, you'll have to change the tagline, but maybe it's time anyway. Bottom line, the people demand more content." Well, so far, the people might be an overstatement. One person has demanded that additional content, which is good. But I don't know. I don't know if we're going to be able to pull that off anytime soon.
Will: Yeah, we had that great run last summer, long after the court had stopped issuing opinions where we were just cranking them out. That was good. Some of our listeners were happy.
Dan: Some version of that may happen again for a couple weeks this summer, so stay tuned. We'll see what happens. There are other important, substantive pieces of feedback from the mailbag. Mark Verbitsky writes in to say, "I've noticed there are really frequent mouse-clicking sounds in the background audio. Are one of you playing Solitaire or Magic: The Gathering during the chat? I love the pod, but I'm confused by all the clicking I hear. Can I send one of you a Logitech mouse with more silent clicking?" So, first of all, this is news to me. I hadn't heard this. And second, I don't know who's responsible. I do a little clicking as I'm moving around, looking at the opinions, trying to get language in front of me, which is, I think, a necessary byproduct of what we do. I could turn on tap to click, I suppose. Is this your fault? Are you doing all sorts of stuff over there?
Will: I mean, I think my mouse is pretty loud. I hadn't known it was loud enough for people hear it. But since you don't usually listen to the show, I guess the fact that you don't hear it. That's not reassuring.
Dan: I listen to it once in a while. I don't want our listeners to think we don't care about stuff like this because I'm sure you're not part of the subculture, Will, but I do have a mechanical keyboard.
Will: No, I have two.
Dan: You do?
Will: Yeah.
Dan: You're in the world? Okay.
Will: Leopolds. I have two Leopolds, identical.
Dan: Okay, that's a little bit more teched up than I expected you to be. But, yeah, I have a mechanical keyboard. I type sometimes during the show, but I use a separate keyboard so that it doesn't disrupt the audio quality. And then if I were to use my regular keyboard, this is what it would sound like. You can hear that, right?
Will: Yeah.
Dan: It's very loud.
Will: Actually, you frequently do hear my keyboard during the show because I don't have a separate keyboard. So, that may be part of the problem.
Dan: Which key switches are you using?
Will: Cherry brown.
Dan: Cherry brown. They're a little softer. They're not clicky. I've got the cherry blues. Cherry blues are super clicky.
Will: I think you recommended this keyboard to me, Dan.
Dan: Did I? I didn't recommend the Leopold. I think I may have recommended the idea of a mechanical keyboard to you. When did you take that plunge?
Will: COVID.
Dan: Okay, great. I'm proud of you.
Will: Well, should I get a new one?
Dan: I mean, if it's working for you. I mean, the thing is, listeners, if you don't have one of these, if you write for a living, they're just so satisfying just to sit here and feel the click, feel the tactile response. It really feels like you're a real kind of craftsman. You've got like a sophisticated piece of equipment. If you're a professional writer, you should have professional, great equipment.
Will: No, I love them. I'm ruined for all other the keyboards. The spacebar on my one at home in the past month is broken and I tried to fix it, but my fix is imperfect and so now it drives me crazy every time I hit space.
Dan: Might be time for that Con Law Institute to invest in a new one for you. We can figure that out.
Will: But that's why it's my chance now to upgrade if there's a better option.
Dan: Okay, well, we can have an offline conversation about all the options.
Will: Because it hadn’t occurred to me that I could get away with playing the Magic: The Gathering during these podcasts, that’s-- [crosstalk]
Dan: I don't know. It just depends on-- I need 110% of my brain power to keep up with you. And so maybe if we could give you a little bit of a handicap, that might even the odds a little bit. All right, other super substantive feedback. We heard from a friend of the show, Tejas Narechania, Professor at Berkeley School of Law, the school of law formerly known as Boalt Hall, but we're not supposed to call it that anymore, who wrote in with something quite interesting, a piece of knowledge I did not previously have. At some point on the show, last episode, we mentioned one of the opinions that had three stars. The Trump v. Anderson, there's part of the opinion, there's three stars that separates text. That's kind of a line break that the court sometimes uses to separate part of the opinion from the conclusion or something. We didn't have a good word for that. Turns out there is a good word for that, and it has been in existence for centuries. So, Tejas writes in and says, "You may know this already, but the three stars have their own typographic identity. They're known as a dinkus and used as a logical separator in print materials for centuries." Did you know that?
Will: So, I remember while we were recording the show, I was thinking to myself, "There's a word for this, there's a word for this." But all I could think about was romanette, which is little roman numeral, like the i, ii.
Dan: Which is also a cool word.
Will: It's a cool word. And it was used by, I think, Nicole Saharsky, who was then in the SG's office. The term I clerked during a statutory interpretation case, and she just started talking about romanette i, Romanette ii. And at some point, the chief interrupts her and it's like, "Excuse me, what?" "Just a little roman numeral." All the Justices were coolly impressed by that. I suppose she won the case on that basis alone. So, I remember there was something, but I couldn't remember what it was or even if it was making it up. So, thank you, Tejas for the dinkus.
Dan: But it sent me down a little bit of a rabbit hole, and I learned about another thing, an asterism. I got this off Wikipedia. An asterism is a typographic symbol consisting of three asterisks placed in a triangle, which is used for a variety of purposes. Originally used as a type of dinkus, though increasingly rarely, which is maybe why I hadn't seen it. It can also sometimes be used to mean untitled or author or title withheld. Kind of cool, right?
Will: Yeah.
Dan: I like that word, an asterism.
Will: That's good.
Dan: Did you know about that?
Will: No, no. That's too out there for me.
Dan: I bet Steve Sachs knew about all this stuff, don't you think?
Will: Steve Sachs knows everything about all typography.
Dan: Yeah, he's the typography master. I finally asked him how to do the footnotes when making the numbers at the bottom not in superscript, so it looks like they do in the yellow journal. Looks really nice, started doing that. So anyone who wants to spruce up their law review articles, take a look at Steve's. [crosstalk]
Will: y method for doing that is just co-author as much as possible. [crosstalk]
Dan: But then, he doesn't let you manage the document, right?
Will: No, I have to. I just send him what I want to say [crosstalk] he decides whether to include it.
Dan: Okay. Any other feedback, trivial things like that is waiting in the queue?
Will: That's all I have right now.
Dan: Okay, so should we do some substance? How are you doing by the way, in the wake of the letdown of Trump v. Anderson?
Will: Letdown? What do you mean? That they embarrassed themselves?
Dan: [chuckles] No, there was a lot of buildup. And as we talked about last time, Baude-Paulsen position was not ultimately victorious. How's the hangover?
Will: I got the reprints today actually. I opened them up and I was like, "Well, this will be a nice historical curiosity."
Dan: So, I assume you did not have time to work in cite to the actual case, given the timeline, if the reprints were already coming out?
Will: Right. I think there's a footnote somewhere in the opinion that says, "Let me put this out. We wrote the article back in the fall of 2023 and are not trying to follow events as it comes out." But they didn't have time to work in the cite to RPC either, so I feel like we're-- [crosstalk]
[chuckles]
Dan: Well, I don't know if it makes you feel better or worse, but it does look like our last episode breaking down Trump v. Anderson, is on track to be our most downloaded episode of all time.
Will: On track, it's not there yet.
Dan: The downloads, they continue accumulating, actually, for months and months, but based on first week downloads, it is having our best first week of any episode. And is that the schadenfreude, people just want to hear you grapple with failure or sympathy or just genuine intellectual interest? I don't know, but I'll take the downloads either way.
Will: [chuckles] Yeah, I've put this out of my mind. I'm moving on to other things.
Dan: Oh, you'd already forgotten about it until I mentioned it?
Will: Yeah.
Dan: Okay, so I'll just have to remind you every episode or two. Okay, maybe some cases.
Will: Yeah. We got three cases last Friday or two and a half, right?
Dan: Two and a third. I don't know.
Will: 2.x.
Dan: Did you want to talk about any of the ones like from before, or is that digging too far back?
Will: Are you trying to bring up Trump v. Anderson again?
Dan: No.
[laughter]
Dan: No, before that even.
Will: Oh, we have the admiralty case.
Dan: Yeah.
Will: Which our listeners have been begging us to talk about.
Dan: Have they?
Will: I'm sure they have.
Dan: Okay. Yeah. That's been out for like a month now.
Will: We don't need to talk about it if you don't want to.
Dan: I mean, I reread it. I've read it twice now. I read it for the last episode, and we didn't get to it, and I reread it again. Also, I've read now McElrath v. Georgia twice. Did you read that one?
Will: Technically, but that-- [crosstalk]
Dan: We can talk about it for 30 seconds if you want, but, yeah, let's just quickly talk about Great Lakes Insurance SE v. Raiders Retreat Realty, we already did a full preview of this case, so I don't know if we need to dig into it. But it's basically about what happens in the federal maritime context where there is a choice of law clause. Can you explain this in a way that-- basically, where the choice of law clause that would be applied in a federal maritime case would create a result that would conflict with the policy of the state where the case is being litigated, is that--?
Will: Yeah.
Dan: Have I fairly characterized the case?
Will: The case is being litigated in Pennsylvania, and Pennsylvania potentially objects to this kind of choice of law clause and the effects that it would have. But the contract picks New York. And so then, the question is at the meta level, who gets to decide whether the contract is allowed to pick New York? Can Pennsylvania veto that? Or is there some different test because it's admiralty that's more generous to the freedom of contract and the right to pick your own law. And the answer is, it's admiralty. So, there's a more generous test that's more pro freedom of contract and doesn't let Pennsylvania veto the party's attempt to pick New York law instead.
Dan: Yeah. So, there is still some possibility under federal maritime law to say that a choice of law clause does not apply.
Will: Yeah.
Dan: So, like, you can't just pick the law of some nation that has absolutely no connection to dispute, that would be kind of unreasonable. Maybe that doesn't work, but for the most part, these are usually going to.
Will: Well, I think you're allowed to pick-- and this is actually a classic choice of law problem, I think you're allowed to pick a place that has no connection to the dispute.
Dan: For a good reason.
Will: As long as you're picking them for a good reason, like, they have pretty good law.
Dan: Yes.
Will: Or even you're not quite sure what their law is, but they probably have pretty good law because they generally have pretty good law. So, I think you're always allowed to pick New York.
Dan: That seems right. Yeah.
Will: It's kind of become the custom that New York attempts to develop a sort of robust business law that people might want to pick and is eager to have it picked, even though people who have nothing to do with New York, and that’s sort of--
Dan: The opinion says it would be unreasonable to pick the law of a distant foreign country without some rational basis for doing so.
Will: But the rational basis, I take it, potentially include, like, "I read a case from them that I liked," or something like that.
Dan: It doesn't really resolve that, the precise contours of that. But yes, that sounds fairly differential to the parties.
Will: Yeah. And then there was also a separate opinion by Justice Thomas, sort of true Justice Thomas fashion, "I agree with this result, but I would go further and totally repudiate this old case, Wilburn Boat," that the parties were heavily relying on, and "Here are all these admiralty treatises and admiralty scholars who've condemned Wilburn Boat." As listeners know, as you know, Justice Thomas loved these kind of, "I agree. But also, here's a bad case we got to get rid of." It's just funny to see him train his fire on a case that most people had never heard of before this case was litigated.
Dan: I certainly had not.
Will: I generally like this opinion. I have two things about it that disappointed me. One is the first sentence of part two of the majority opinion.
Dan: Should I read it?
Will: Sure.
Dan: Under the Constitution, federal courts possess authority to create and apply maritime law. That's the sentence, right?
Will: Yes. Courts do not create law. Courts apply law. The Justices should know this. I think the Justices do know this. You might say they find law, and it's a modern 20th century innovation to say that's making law under the constitution, they decide cases and controversies. And incidental to that, they might describe the legal principles. Now, it's true that in a system of unwritten law, the only law is the precedents themselves or the practices themselves. So, it feels as if courts make law. But it's a little disappointing that the court to say that.
Dan: But I mean, to be fair, the court has acknowledged that for like a century, right? Like post Erie, there's understanding that in common law, courts are making law. Like, I get that this is not your and Steve Sachs’ view of what really formally they're supposed to be doing and thinking, but this is--
Will: If they wanted to say, "Under our post-Erie case law, federal courts possess the authority to create and apply maritime law," that would be less annoying. Say, "Under the Constitution," it's a little more annoying. And they don't need to say it. So actually, there is a substantive dispute in admiralty law about to what extent the court should be deciding what is good policy and doing it, and to what extent it should just be like, applying whatever longstanding principles it has, which kind of lines up with the finding, making a lot of distinction. And the substance of the opinion is totally on board with the, "Let's look at our long-standing policies. Let's not try to ask our own normative questions of what the law should be." So, the opinion is so close to being actually in the correct category. It just then-- that sort of sentence at the beginning is just so far.
Dan: Yeah, no, it's interesting, that whole paragraph, actually. I didn't have a strong revulsive reaction to it the way that you did, but I found it interesting because it says-- the next sentence is, "Article 3 of the constitution extends the federal judicial power to all cases of admiralty and maritime jurisdiction." So, that's a grant of jurisdiction. And it says, "That grant of jurisdiction contemplates a system of maritime law coextensive with and operating uniformly within the whole country." And it's quoting a 2004 case for part of that sentence. But that's got to be-- I assume you find that claim pretty controversial, that a grant of jurisdiction recognizes a substantive body of law.
Will: Well, that part's better, more carefully phrased. It's true, the grant of jurisdiction contemplates it. That is, the framers of the constitution thought there was such a body of law, maritime law that was general law, and that's what they granted jurisdiction to adjudicate. So, that part's carefully worded to both be in line with the current precedents and consistent with the-- it sort of carefully massages it. The purposes of that uniform system include promoting the great interest of navigation and commerce and maintaining the United States diplomatic relations. That part's true. It's everything substantively, it's accurate without getting too far into the weeds. But then--
Dan: What was the other thing? There was another thing that bothered you or disappointed you?
Will: Well, my other disappointment is with Justice Thomas. You made this point just now that, okay, all of my complaints about what the court says, that's just in a post-Erie world, this is well established by the precedents, but the courts, of course, relying on hundred years of admiralty jurisprudence. Here we are in an admiralty case that presents a bunch of things that have kind of gone wrong, first principles, including the nature of the court's authority in admiralty cases, the status of admiralty law. I think, as we talked about in our preview episode, there was an amicus brief by some of the states teeing this up, citing the scholarship for Ernie Young about where the sort of court had gone wrong in admiralty law as a whole. And so, it's disappointing that we do get seven to eight pages from Justice Thomas about rethinking admiralty law precedents. But the only precedent he wants to rethink is Wilburn Boat. It's just thinking a little small.
Dan: What would it look like if we did your preferred rethink of the whole field? So first, it would be, abandon this idea that federal courts are making law in these cases. They're just finding law.
Will: I think so, the first step would be that. The second step, the more controversial one, if you accept, adopt all of Professor Young's view, might implicate the relationship between admiralty law and, say, state statutes. So, if admiralty law is federal common law, then it preempts all state statutes, and it's sort of like a form of supreme law of land. If admiralty law is general law, then potentially state statutes can differ from it, and so it implicates the power of states to regulate a lot of issues that affect maritime commerce. [crosstalk]
Dan: How would you do conflicts analysis in that situation? If one state that's involved has a statute banning certain kinds of contracts, and other states permit them?
Will: Well, then our choice of law question will matter again. So, each forum applies its own conflicts rules. One of the good things about rethinking this is then you could start to also think about whether conflict of laws should also be general law rather than state law.
Dan: So, federal courts should apply federal choice of law rules?
Will: Well, they should apply general choice of law rules.
Dan: Yeah, but they shouldn't, in your view, apply the choice of law rules that are just of the state where they sit.
Will: Exactly. And of course, in this case, if they were to apply the choice of law rules of the state where they sit, the respondents would have won. That was, in a way, the argument the respondents were making. They already agree they don't want to do that. There are many directions to rethink it. And of course, Justice Thomas, what’s great in his opinions, he doesn't always claim to have all the answers, but often he says, "Look, something has gone awry. Our current precedents do it this way. It's clear something's gone wrong there." In an appropriate case, I would rethink the right way to do it. And I think admiralty law could use a Justice Thomas shakeup, and I think that shakeup could go more deeply than Wilburn Boat.
Dan: Well, so far, there seem to be zero Justices on the court interested in that. But let's keep talking about it on the show, and maybe that will change over time.
Will: Yeah. First Trump v. Anderson, now this.
Dan: [chuckles]
Will: [crosstalk]
Dan: Okay, well, you actually genuinely sound more disappointed by this than you did about Trump v. Anderson, for better or for worse. McElrath v. Georgia very quickly. This is a double jeopardy case. It's a unanimous opinion by Justice Jackson. It's very short. It's 10 pages. So, the fact that it's a 10-page unanimous opinion by the most junior Justice should suggest you this is maybe not the hardest or most legally complicated case that was pending before the court. Certainly not the most controversial, but basically double jeopardy case. What happened was a criminal defendant in this case was on trial for murder, being tried for a couple of different forms of murder for the same crime, felony murder, and malice murder, which is depraved-heart murder, one of classic categories of murder. The jury found he-- [crosstalk] what?
Will: That's real murder. Felony murder, it's kind of like fake murder.
Dan: Yeah, but real murder is like first degree premeditated murder, and then there's, like, lesser stuff that still counts, but, yeah, it's legit. He was found not guilty by reason of insanity on the malice murder charge but was found guilty but mentally ill on felony murder and another charge in the case. And guilty but mentally ill is one of these kind of modern things where it basically gives juries-- in a case presenting an insanity defense, it gives juries kind of a way out to not actually accept the insanity defense, but still feel like a little bit less guilty of what they're doing. And so, he appealed the felony murder conviction on the ground, this is some state law ground that it was repugnant to the acquittal on the malice murder charge. Basically, the idea this was inconsistent, and the appellate court said, "You're right. It's repugnant. Those two verdicts are inconsistent with each other. Therefore, we’re vacating both. The acquittal, the not guilty by reason of insanity verdict, and the guilty verdict." And then, he said, "Well, that violates the pretty settled rules against double jeopardy, which is that an acquittal is final. Even if there's an inconsistent verdict, you can't overturn an acquittal."
And that was my reaction when I kind of became generally familiar with the contours of the case. And I was kind of just like, "Why is this case even-- why does this case need to be a thing?" I thought this was like, is there something I'm missing, like this repugnancy thing, is this somehow different than normal rules about inconsistent verdicts? Turns out it isn't. Turns out this was just a super, super easy case, and that it's there just because the Georgia Supreme Court did something stupid. Tried to basically make an exception that doesn't exist in double jeopardy law, and the court is like, "Nope, it doesn't work that way if there's an acquittal, that's final and you can't vacate acquittal." So, that acquittal stands.
Will: Justice Alito has this separate point, just to make sure I understand this. Justice Alito says, "Okay, fine, I agree with that. But this would be different if--" I guess, if there weren't an appeal or if the district attorney himself had said, "Wait a minute, these two judgments are inconsistent. I refuse to enter them."
Dan: Yeah, majority opinion does not actually resolve that question. It reserves that in a footnote. Footnote four, it says, "We need not and do not address the double jeopardy clauses application to a trial judge's rejection of inconsistent or incomprehensible jury findings under state law." So, I don't think that's settled. But yes, I think what his view is, is that if the judge never actually formally enters the judgment, maybe the acquittal has never happened.
Will: And so, why can't state structure its appellate system to say the judgment is not actually entered until after the appeal is concluded?
Dan: Well, the court says that whether something is an acquittal for double jeopardy purposes is a question of federal constitutional law, not state law. Basically, and the court says, this is on-- well, I'm looking at the preliminary US report. So, it's now actually got the pagination. This is on page 96 of the preliminary US reports says, "An acquittal occurs when there has been a ruling relating to the ultimate question of guilt or innocence. Thus, it is not dispositive whether fact finder incanted the word acquit. Instead, an acquittal has occurred if the fact finder acted on its view that the prosecution had failed to prove its case." I don't feel like that totally answers the question.
Will: If that were true, then this would resolve Justice Alito's hypothetical because there'd be a ruling by the jury.
Dan: Unless somehow, until it's sort of formalized in a judgment that hasn't been a ruling, it's just sort of a preliminary. Because obviously it doesn't trigger double jeopardy if the jury comes back and is like, "Okay, right now, we're voting, everybody wants to acquit." And then, the judge says, "Deliberate further," and they go back and deliberate further.
Will: Right. But then why can't you-- like suppose the jury comes back and say, "We want to enter inconsistent verdicts." And the judge says, "Well, I'm going to pause and have an interlocutory appeal to decide whether these verdicts are really inconsistent."
Dan: Yeah. What I think the correct thing that should happen there is if the judge is going to refuse to accept the verdicts, then I guess the proper course should be a mistrial.
Will: Okay. But the judge wants to accept the verdicts. [crosstalk]
Dan: I think if the judge accepts the verdicts, then that should be the end of the story. If the judge does not, then the judge has to declare a mistrial. And then, the standard for whether a mistrial has double jeopardy implications is manifest necessity. A hung jury-- mistrial in the case of a hung jury has been held to be manifest necessity for purposes of double jeopardy, and so would a mistrial for purposes of irresolvable inconsistency constitute manifest necessity? Maybe.
Will: But if the state wants to say the trial judge doesn't have the authority to accept the verdict until an appellate court has made sure they're consistent, they could presumably do that. They just need to devise a new form of appeal. They'd say like, the trial judge now pencils in, "I would like to accept the verdict," does not enter final judgment. We have an interlocutory appeal which will resolve all of the actual issues of the trial. We don't issue the final judgment until after, it's been resolved so we can keep the double jeopardy clause question open?
Dan: Maybe. I don't know. I mean, I think that there comes to be a point where all this kind of complicated structuring might just start to look like the state is just trying to basically have a rule in favor of permitting appeals from acquittals, which you're not supposed to do. So, there has to be some line. It can't be the case that you can have a full appellate process in the midst of an acquittal in general. The trial court can't enter a verdict on an acquittal until an appellate court has determined there was no procedural error benefiting the defendant. They clearly couldn't do that. They clearly couldn't say, "Okay, the acquittal will sort of stand. We'll sort of be held in advance while we have, like--"
Will: That's what I think. I think the only way through this is to bite the bullet and say Justice Alito is wrong, and then the court is therefore wrong when they say, "We need not and do not address the issue we were just talking about," they're wrong and they do need to address it. I mean, they don't address it, but I think they need to.
Dan: Yeah. Although he says a situation here is different from one in which a trial judge refuses to accept inconsistent verdicts and sends the jury back to deliberate further. That's not necessarily the hypothetical you're talking about where there's this complicated appellate practice. I think he's imagining-- I think maybe what he's saying is the fact that the trial judge says, "Go back and deliberate further," that shouldn't count-- the jury should not be treated as if it had acquitted when it came back and said, "We're ready to issue inconsistent verdicts." That would be the argument a defendant might make-- [crosstalk]
Will: That'd be the argument. But the only reason that can be true is if you think that either the acquittal is when the jury decides, "We're acquitting," in the constitutional sense, or it takes into account something else, like the state law power to refuse to accept the jury's verdict and then once we start letting the state do that, I don't understand how we would stop an interlocutory appeal. A rule that the double jeopardy clause defines an acquittal as the jury plus the trial judge, but no involvement of the appellate court just seems totally made up.
Dan: I want to think about that some more.
Will: I've never thought about it at all. So, this is just a hot take.
Dan: I mean, like, with a hung jury, normally the jury comes back and says, "We're hopelessly deadlocked," and then at that point, the trial judge can say, "Go back and deliberate further," or, "I've accepted that you're hopelessly deadlocked, I'm going to enter a mistrial." But it would be kind of a weird-- if the judge enters a mistrial, there's not a double jeopardy problem, but it would be kind of a weirder situation if you had like a full appellate process at that point before even deciding--
Will: Let me just ask this version. So, the jury comes back and just says, "We're acquitting," can the judge say, "Hmm. Think harder"? And state law says they can. State law says if the judge is convinced that the acquittal is irrational, they can tell the jury to think about it more.
Dan: Yeah, I vaguely remember there being a case like that, but now I can't remember. My intuition is there still can be some formal process before the judge has to-- make sure that they've polled the jury, maybe make sure everyone is totally behind the verdict, everything like that. Presumably, if the judge just doesn't like the outcome, you might have an issue where the judge is basically kind of coercing the jury into finding guilt, that might be problematic. I don't know.
But anyways, this case itself, not super hard, there was a lot of breathless praise for this opinion on the internet. There was a Slate piece about how this showed Justice Jackson's brilliance as a former public defender. And I would just say this is an incredibly easy case, everyone signed on to this opinion. This required no-- She got this opinion because it was easy.
Will: I've read nothing about this case. I didn't even know anybody cared about it.
Dan: Yeah.
Will: One interesting thing about it is that it was-- I'm just looking at the docket, it was distributed for conference eight times before it was granted, throughout May and June of 2023.
Dan: This should have been a summary reversal, I think. I assume that either there was a dissent from denial, or maybe someone was trying to just write a summary reversal opinion. Clearly could have been.
Will: I bet there was a dissent from denial and then eventually made its way to the--
Dan: It is interesting, because it does show you that sometimes there are cases they don't want to take, and then they finally take them, and everybody agrees that they were, like, super, super wrong.
Will: So, maybe the version of this Slate piece should have been, I'm just speculating, Justice Jackson wrote a descent from denial. It was so powerful, it eventually embarrassed three of her colleagues into voting a grant cert. And eventually that paid off, at least for-
Dan: Could be true.
Will: Mr. McElrath.
Dan: Could be true.
Will: I don't know.
Dan: Could have been a Justice Kavanaugh dissent from denial. Could have been anybody.
Will: That's right. Kagan, Barrett.
Dan: Alito. He could have just been waiting for the opportunity to make that point in concurrence. Okay, what else?
Will: Shall we move on to Friday?
Dan: I suppose so.
Will: Okay. Last Friday, we got opinions in, as we discussed before, two and a half more argued cases. One of them or one and a half of them, I don't know that we should spend a lot of time covering there, but an interesting issue, which is when a government official blocks you on social media, is that a constitutional problem? Are they a state actor? A case that the court had previously granted in the context of then President Trump's Twitter feed, in a case of the Second Circuit that was then dismissed as moot when President Trump ceased to be a state actor and I guess also ceased to have a Twitter feed. This comes up a lot in the context of the city manager of Port Huron, Michigan, and many other random government officials. And Justice Barrett writes an opinion in Lindke v. Freed, setting out a kind of agency law test. Depends on whether the government official actually has the authority to act on their social media feed and if so, whether they're accessing that authority.
Dan: Yeah, and interestingly, this is for a case that seemed like it presented maybe some hard issues, some complicated issues, Justice Barrett got a unanimous opinion, no concurrences, no dissents, no several writings. She cranked out a 15-page opinion, everybody's on board for 100% of it.
Will: They should have given her Trump v. Anderson.
Dan: [laughs] Then, she wouldn't have had to chide anybody.
Will: Okay, so two things about this opinion, actually, both of which are things I've already speculated on the internet. One is, do you think it's possible that they were making a special effort to get this opinion out now, because today the court is hearing argument in these much more explosive state action social media questions about Murphy v. Missouri, like the question of when the FBI tells Twitter to not publish a story about First Amendment-- like there's any--
Dan: Just why would they care so much about the exact week in which this comes out just because-- did it affect [crosstalk] oral argument?
Will: The [crosstalk] argument, wanting to be able to say-- I mean, actually, I haven't been following the market from this morning because I was preparing for this show, but you could imagine wanting to say the risk that somebody's going to say an argument, "Well, our state action test requires actual authority and exercises that authority." So, sort of leaking the opinion or just being able to want the [crosstalk] talk about the opinion.
Dan: Maybe.
Will: This came up earlier with Chevron, because the court had these arguments about whether it overturned Chevron, and now they have these other cases about the APA, and some of the Justices asked questions like, "Well, now that Chevron's gone, does this--"
Dan: [laughs]
Will: Well, hypothetically, [chuckles] if we get rid of Chevron, so you can imagine thinking it's just tidier to get this-- [crosstalk]
Dan: Maybe.
Will: I don't know.
Dan: But this seemed like this was not a hard opinion for them to come to agreement on. So, I don't know.
Will: Yeah. Okay, so then this is my last one, is in the paragraph after the dinkus, thank you, Tejas, the last sentence, actually, which I think is called the decretal language, Justice Barrett says, "To the extent that this test differs from the one applied by the 6th Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion." Why do they say, "to the extent that"? Why don't they just say, "We vacate 6th Circuit’s judgment"?
Dan: it's clearly vacated and remanded. It's not vacated to the extent that it's different. I think it's just poorly phrased, right?
Will: If you look on the docket, it's been registered as a vacatur, and the syllabus registers it as a vacatur. So, you say clearly, I guess so. But that's not what this says. This says "to the extent that," so what if this test doesn't differ from the one applied by the 6th Circuit?
Dan: It's not vacated, remanded. Yeah, that strikes me as extremely poorly phrased. I would compare it with the 0.2 of the 2.2 or whatever, however many opinions came out, was per curiam, grant, vacate, and remand in the other case, presenting the same set of questions, O'Connor-Ratcliff v. Garnier. And in that case, there's not substantive analysis, but the short per curiam just describes the basic facts and the issue and then says, "We granted certiorari in this case and in Lindke v. Freed, as a result of a Circuit split because the approach that the 9th Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the 9th Circuit for further proceedings consistent with our opinion in that case."
It sort of seems like what they were trying to do is something similar here, but they were trying to say, "Because it is not clear how much this approach differs from the 6th Circuit, we're going to vacate and remand."
Will: Right. The different phrasings, I take it. They all agree the 9th Circuit has a different test needs to be vacated. Here's my suggestion. I take it they might not all agree whether the 6th Circuit test is the same as what Justice O'Connor, Justice Barrett just said. And so, they can't say because the 6th Circuit test is different, you vacate it, and they want to get a unanimous opinion out. So, they don't want to actually ventilate whatever disagreement they have, what the 6th Circuit did. Maybe it doesn't really matter. But the phrasing, literally, what the court has said is that if the 6th Circuit's test doesn't differ, it's not vacated.
[chuckles]
Dan: That doesn't make any sense.
Will: Schrödinger's vacatur. I mean, you could do it. You could say to the 6th Circuit--
Dan: But I mean, the case either goes back to them or it doesn't.
Will: It goes back to them.
Dan: No. If it's affirmed, a case doesn't go back to them, right?
Will: [laughs] That's true.
Dan: Basically, what you're saying is that the court would have to make this threshold inquiry, and say, [chuckles] "Our test is not different, therefore we lack jurisdiction"?
Will: If the 6th Circuit is trying to follow the mandate as literally as possible, that is what they should do. That's not what they're going to do. We're all just going to pretend this doesn't quite mean what it says.
Dan: Well, I think we're just going to all acknowledge that this is poorly written.
Will: I think it's not poorly written. I think it's very carefully written to bury the disagreement the Justices are having.
Dan: Why couldn't they just say, "Because it is not clear the degree to which this test differs from the one applied by the 6th Circuit, we vacated remand for further proceedings"?
Will: Well, again, suppose some Justice thinks it is clear, that it doesn't differ and doesn't agree to vacate.
Dan: Well, what about just saying, "So that the 6th Circuit can determine the extent to which this test is different from their test," without expressing any view. There's clearly a way this could have been written that doesn't create this.
Will: Some Justices have in the past expressed the view that the court can't vacate a decision, that's correct. I think Justice Thomas has said that in the past. You can't GVR just because you'd like a do-over, if you actually think they got it right. All those are fine, those would all just be a little bit more explicit about what they're covering up. And this is so elegant that you kind of--
Dan: It also just literally doesn't make sense.
Will: But in a very elegant way. This is how you bury the bodies. Again, this is-- Her Trump v. Anderson would have been so much more elegant.
Dan: Well, we will never know unless it turns out, whenever her papers are released, that she was actually secretly working on her version of the opinion that was not published.
Will: Yeah, I hope she has a better version somewhere.
Dan: It seems unlikely.
Will: Okay.
Dan: Well, we're really making good time and now--
Will: We haven't gotten [chuckles] to all the cases yet.
Dan: No, I know, but I think we're going to get to everything we want to get to. We've got one left. Is there something else I've forgotten?
Will: Let's find out.
Dan: Okay.
Will: That leaves us with Pulsifer v. United States, another case we previewed on the podcast. We're acting like a real podcast, like previewing cases, returning them in a timely fashion.
Dan: Timely-ish, yeah, but this one is timely.
Will: This one is timely.
Dan: The Great Lakes was not super timely. It was a month late.
Will: Whatever.
Dan: But this one's timely.
Will: Okay. I tried to go back and check what we said about this before, but I don't like to be too spoiled by our prior views. But do you remember this case, Dan?
Dan: I do.
Will: This is about qualification for the safety valve under the First Step Act.
Dan: Yeah, this one, kind of a fun exercise in statutory interpretation. This is when the court started dipping its toe into formal logic, basically. Should we read the statutory language? This is one, listeners, where it might actually benefit you to just pull up the opinion and have the language in front of you. But I'm willing to read it if that will help people. So basically, you have this provision, the First Step Act. Basically, it's this statute that was passed under Trump that makes some federal prisoners eligible for relief in terms of sentencing that they would not otherwise have, but then it has certain limitations on that relief.
So basically, there's this provision in it which is called the Safety Valve Provision, which says if the defendant is convicted of a drug offense, they are going to not necessarily be subject to a mandatory minimum that would otherwise apply. So, under that provision, the court can sentence the defendant without applying the mandatory minimum that would otherwise apply if it finds that five criteria are met. And there's five criteria, we don't need to go over all of those. But one of those five things is something about the defendant's criminal history. And that part is paragraph F1, as the court calls it. And that was the thing that was modified in the First Step Act.
And so, that as it's currently enacted, that provision says that that requirement that requirement that makes the defendant eligible for the safety valve, eligible to not have the mandatory minimum imposed, is satisfied if the court finds at sentencing that the defendant does not have, and then there's an em dash. Em dashes versus en dashes is a very important thing for lawyers to understand. Many of them don't. But put that aside. M dash, and then there are three clauses that are separated by semicolons and that are set off by letters and parentheticals. So, if the court finds it sentencing that the defendant does not have M, a more than four criminal history points, and then some other language. B, a prior three point offense as determined under the sentencing guidelines, and C, a prior two-point violent offense, as determined under the sentencing guidelines. So, basically, this requirement is satisfied if the court finds at sentencing that the defendant does not have A, B, and C.
And so, does that mean that the court has to find that the defendant doesn't have A, doesn't have B, or doesn't have C? Or is it sufficient for the court to find that the defendant doesn't have the conjunction of all three of those things? So, the defendant has more than four criminal history points, has a prior three-point offense, but does not have a prior two-point violent offense or what have you.
Will: Right. I will say, every time I look at this, it seems linguistically clear to me that if the defendant has some of those, but not all of those, that he qualifies. Say, the defendant does not have A, B, and C. And if I don't have A, B, I still qualify. If I don't have B, C, I still qualify. Like, I understand that may not be what Congress intended. I understand it's not what the court ultimately says, but every time I look at this, I don't see how to read it any other way.
Dan: Interesting. Okay, well, I found-- so, we have a divided court here. This one apparently was not so easy. Somewhat of an interesting breakdown here. We have a majority opinion ruling in favor of the government by Justice Kagan, but she is joined with all of the conservative Justices except for Justice Gorsuch. And then, we have Justice Gorsuch in dissent, joined by Justices Sotomayor and Jackson. So, we have a little bit of ideological aisle crossing in both directions here.
Will: I think everybody's position is what you would have predicted from argument-- I think what we did predict from argument, Justice Kagan made her skepticism of the Pulsifer position pretty clear at argument, and it is on display here. I noticed she repurposes some of her own examples from oral argument, citing the oral argument transcript.
Dan: [chuckles] Yeah, I saw that.
Will: She cites a children's book, she's been known to do in the past. I think she cited Red Fish Blue Fish in Yates. Now she's got the very Hungry Caterpillar at hand. So, the Justice Kagan children's library is continuing. And I will say, despite what I just said, Justice Kagan is very good at what she does. Justice Kagan says, "Look, it's ambiguous, or at least it depends on context. And we can all come up with examples where it doesn't have A, B and C. Seems like it's a checklist, and places where it seems like it's not." And so, she has her various examples that could go the other way. And therefore, we got to turn to "context." One of my colleagues asked me this, is this just purposivism again? Purposivism lives, now called context? Is that what's going on here?
Dan: I don't think so. I really don't think so, because I think that she does talk about purpose, and that does play a role in the analysis. But I do think that there's something to be said for actually interpreting any text requires just kind of like reading the whole thing with a certain amount of maybe a little bit of common sense and a recognition that there's going to be lots of ambiguities in language, and you kind of have to understand the kinds of things are at issue to make sense of it. And then, she goes through lots of examples where you just have to understand the subject matter in order to make sense of the words because I think that, not to bury the lead, I actually found her opinion much more compelling than Justice Gorsuch's. His dissent is a 33-page dissent. And I just honestly found her opinion a lot more persuasive.
Dan: I agree. Despite what I just said, I think she's the best at what she does, so she writes a very persuasive opinion. I think you're right that she's not doing purposivism of the old school style of, like, "We know what Congress was trying to do because they told us or the legislative history," something like that. I mean, actually, I think there are briefs from some members of Congress on Justice Gorsuch's side, but she's not getting into that. It's like the evidence is from just thinking about how this would work. Common sense. A sort of not like what would be good policy, but just sort of what would you expect as an educated student of sentencing guidelines. And then, especially this point about redundancy, that if you were to read them as three different conditions, any one of which entitles you to relief, it's weird. Like, why bother to have the more than four criminal history points thing when you've got to have two and three? And as she says several times in the opinion, two plus three is five, which is more than four.
Dan: Yeah. And this is a surplusage point. And that's not purposivism. Purposivism, whatever you want. That's making sense of the language as written, right?
Will: Yeah. Here's my biggest complaint, is just as Kagan is trying really hard to make this statute make sense. Are we sure this statute makes sense? I think this was my read before, and it remains my view, is it seems to me that they pretty clearly wrote a checklist that says 'and'. Like, it should say 'or'. It just says 'and' instead. Maybe it's a mistake. And so, maybe the real way to think of this case is to what extent should the court try to interpret the statute in a way that makes sense, even if it's not the way that's most naturally written?
Dan: That seems to me a bit indeterminate. I mean, you're saying that there is no way to make sense of it?
Will: No, no. Justice Kagan acts like, "This is logical. This is clearly what's required. If you read this carefully, this is the only result." And in part, she has to do that, because lurking in the background is this question about the rule of lenity. Like, suppose they were to say, the statute is ambiguous, you can read it either way, then we'd have to fight about, is the rule of lenity still a thing? Which suggests that when you can read it either way, you should read it in the more lenient way. The government says it doesn't apply, she doesn't want to take issue with that, so she has to-- the ironic part is she opens by saying it all depends on context. It could be either one, depends on context. But it's not ambiguous. [chuckles] It's clearly our way, because I don't want to turn to the rule of lenity. And there's something odd about that combo.
Dan: Well, I guess, although the way the court has understood ambiguity for purposes of lenity is extremely narrowly, the idea basically is a statute is only ambiguous if you go through the entire exercise of statutory interpretation, use every tool at your disposal, and you still, at the end of the day, can't come up with the answers. It's completely split down the middle. Which is almost never going to be the case. I mean, usually the court will say, "Yeah, we think it's a close question, but ultimately, we think it's 51-49 in favor of this reading. And so therefore, lenity doesn't apply." And so, there could be things that are sort of initially just reading the words initially ambiguous, and you have to do a little bit more work to figure out what they mean. But that doesn't make them ambiguous in the rule of lenity sense.
Will: I agree with this. What I find funny is there was a lengthy plea about why that was not the right way to think about ambiguity made by one of the smartest Justices in the Supreme Court, Justice Kagan, at the oral arguments in the Chevron cases. Because in the Chevron cases, the challengers want to say exactly that. Roman Martinez wants to say, "Yeah, absolutely. When you really can't tell, then it's ambiguous and turn to the agency, but almost always the 51-49," all that." Justice Kagan says, "No, that's an impoverished definition of ambiguity." There's a lot of cases where, sure, there's a better reading, but you wouldn't say it's the only reading. I mean, I guess it's fine for Justice Kagan to say she likes agencies and doesn't like criminal defendants, and so agencies get a good ambiguity definition, and criminal defendants don't or something.
Dan: Yeah. I mean, there's a more nuanced way to make that argument, I'm sure, than what you just said.
Will: Sorry. Yeah, that was unkind. You can have substantive canons of ambiguity that differ across different areas for some reason. And I guess I would have been more satisfied with some accounting for why it's so different in those two contexts.
Dan: You may get one when those Chevron cases come out, right?
Will: Yeah, maybe. I would have been more satisfied with an opinion that says, "Look, yeah, if you read it, this sure seems like the defendant should win, but defendants are not entitled to the benefit of drafting errors," or something. I don't know. But it's a very good opinion.
Dan: Can I focus on a point that I thought I've actually found pretty compelling in her opinion?
Will: Okay.
Dan: Which is, there's this thing that maybe you echoed a second ago, and that came up a lot in the argument, and it comes up in Justice Gorsuch’s dissent, which is that, "Gosh, if they had just-- everything, they would have solved all these problems if Congress had just used the word 'or' instead of 'and.'" Right?
Will: Yep.
Dan: And then Justice Kagan, kind of late in her opinion, says, by the way, it's not at all clear whether that would have solved all these problems, because actually just everyone would be making the opposite version of the arguments that they're making now. Pulsifer, if that were the case, would be coming into court and saying, "Well, if you read this provision, someone is eligible if the court finds at sentencing that the defendant doesn't have more than four criminal history points or doesn't have a three-point offense or doesn't have a prior two-point violent offense." And that actually seems quite plausible that someone would make that argument. And that argument also wouldn't be a crazy argument in that context either.
Will: I predict-- I guess we'll never know, I predict that argument would never have produced a circuit split, that Judge Pryor, Judge Wood, all the judges who agreed with the Pulsifer argument would not have agreed if the words were different.
Dan: If it was-- if every court would have said-- if the court finds it sentencing that the defendant does not have A, B or C, that every court would have said, you have to have neither A nor B nor C.
Will: Yeah.
Dan: Yeah, maybe.
Will: And I think the examples that they come up with, I just think the ones for Justice Kagan are a lot more strained than the ones for the other side. Like, don't drink and drive means don't do both, not don't do either. And the ones she'd come up about, like, "I didn't like his mother and his father." I mean, I've never heard anybody say that. [chuckles] If they said that, I would think they should have said 'or.' But maybe I'm wrong about that. Can I ask two more questions about this, I guess?
Dan: Sure.
Will: So, I have a colleague who emailed me and was very frustrated about this opinion and said, "This kind of textualism, the let's play word games mode of textualism in which you don't talk about the big stakes, is especially objectionable when we're using folksy little examples on children's books to argue about whether people's lives should be ruined. Imagine being this defendant reading the majority opinion. Why not actually talk about the actual effects of the law, like, what's really going on here?" Does that bother you at all?
Dan: I can see the point, but I guess I kind of want to know, what does that alternate vision of textual interpretation look like? What do those opinions read like? In theory, the whole point of law is to enable us to shift the battleground of those first order policy disagreements to these kind of second order technical questions that people in robes are supposed to figure out. Does that just become like the opinions arguing about whether it's good to put people in prison for a long time or not? Is it just an atmospheric, kind of mood point that we have to be kind of solemn in how we write these things and not cutesy?
Will: Well, yeah, I mean, I guess maybe there's multiple things going on. You might think textualism is especially good when that's we can all agree on. So, we can't agree on the policy, but we all agree it says what it says. But it looks like here that doesn't work because we're 6-3 on whether it says what it says. And then, while it's good, if you can at least explain that in some sort of very easier to agree upon set of situations, but then the fact that the examples are also cutesy makes it feel like-- and then, we should instead talk about how broad should relief be, or does it make sense to have this overlapping set of criteria. This is not my criticism. I'm just curious of it. I'm a formalist. So, I love word games, I guess.
Dan: I can certainly see the point that when there is a real person whose life is at stake, certainly in like a capital case, where there's decisions that affect whether someone is going to be in prison for decades or not, judges should approach these things with a certain air of solemnity, and not be too jokey. I didn't think that anything in Justice Kagan's opinion crossed that line inappropriately.
Will: Not even the caterpillar?
Dan: It was a little too self-referential because I sort of read that as, like, "Look at me. Don't you remember when I cited Dr. Seuss before?" Which obviously was the first thing you thought of as well.
Will: Yeah.
Dan: But the opinion wasn't full of stuff like that.
Will: Yeah. Okay. Do you happen to remember a DC Circuit opinion from 2014 called Loving v. IRS about who can practice before the IRS, like whether tax return preparers can be regulated by the IRS?
Dan: I vaguely remember hearing something about this, but I certainly didn't read this opinion in detail.
Will: The opinion is interesting for a couple of reasons, but it has a different statute, Section 330(a)(2) that also has a list of overlapping criteria, and then a question of whether they're 'and' or 'or.' So, it's the same structure as this one. And the government tries to make the same kind of argument that you've got to interpret them all to be each separate disqualifications rather than altogether, because they're overlapping. And the DC Circuit says, "To be sure, by their plain terms, the four requirements in Section 330(a)(2) are somewhat overlapping, as the IRS notes. But that is not a reason for changing 'and' to 'or.' After all, some overlap is common in laws of this kind. Lawmakers, like Shakespeare characters, sometimes employ overlap or redundancy so as to remove any doubt and make doubly sure."
And they cite the Gluck and Bressman statute interpretation study that finds that regularly Congress drafts things that are redundant and have overlap, and that's fine. Interpreting Section 330(a)(2) to have overlap is far more reasonable than interpreting the statute to mean 'or' when it says 'and.' I remember this opinion for a couple of reasons. One is Steve Sachs and I cite it in our paper on the Law of Interpretation and the discussion of whether sometimes the courts seem to get too obsessed with avoiding overlap and superfluity. And this was a DC Circuit opinion. The other reason I remember it is that the author of that DC circuit opinion was, of course, then Circuit Judge Kavanaugh, who I thought made a very persuasive case that you should not reinterpret 'and' as 'or' in a list just because the elements in the list have overlap. I was sort of a little sad not to see-- [crosstalk]
Dan: He's disappointed you again in this episode.
Will: Well, I didn't say disappointed, I just said sad. And obviously, this case made it make an appearance. I just was checking. I don't think it was cited at all in any of the Pulsifer briefs. So, it's not like it was right there. And of course, it's just a DC Circuit case, but a different statute. But I remember at the time thinking Judge Kavanaugh actually was making a really good point that sometimes you get so obsessed with thinking we got to avoid overlap or avoid superfluidity that you can make not the best reading of the statute.
Dan: Yeah.
Will: There are other arguments from the majority. Apart from the superfluity one, you could just say, I don't know, given common sense or how this works or whatever, and she has some of that as well. But the heavy leaning on the superfluidity argument-
Dan: That's fair. Why do we assume that Congress has to legislate using these very precise categories with no overlap?
Will: That’s right. And I think in the empirical evidence we have is that sometimes they do intentionally-- [crosstalk]
Dan: Consciously do it, yeah.
Will: Yeah, they're like, "Well, we put in three-point offense." But then, somebody is like, "Violent offenses. We've got to put in violent offenses." And so, you're like, "All right, fine, we'll put in violent offenses again as well." And nobody in Congress thinks, "Uh-oh. Now that we've said it twice, that's going to trigger the presumption against superfluity that will cause it to be triggered no times," or things like that.
Dan: The larger problem here is that the amount of brain power and resources that go into interpreting statutes on the backend when they get to the Supreme Court is so much more than the amount that goes into drafting the statutes in the first place. I mean, there are some very smart people in Congress, but the volume of work is higher, the pace is quicker, and just for whatever reason, institutionally, they write a lot of statutes, and some of them have some things that are pretty clearly mistakes in them, or at the very least, things where they haven't gone through and gamed everything out.
And to some degree, that's inevitable because they're doing it on the frontend without real-world cases to work out all the weirdnesses in the language where this case comes up, and I'm like, "Oh, gosh, we didn't realize how this would map onto this weird situation." And yet, all of the backend brain power and resources are kind of aimed at this ultimately kind of silly question about what would a rational Congress have been trying to do when we just know institutionally that there's a lot of compromises and decisions that are made that are not very well thought through. I don't really know what to do with that, but it does make this whole enterprise kind of strange.
Will: I agree. So, this is, I think, one of the-- if I were to try to defend my "it's a drafting error, but they should have given the defendant the benefit of the drafting error anyway" argument, I might try to defend it on the grounds that what would be more likely to prompt Congress to act? If the truth is Congress didn't think about it very carefully, then maybe if the court issues an implausibly broad ruling, but says, "Hey, look, you guys can fix it if you want to." Maybe that's more likely to prompt Congress to act. But maybe the truth is--
Dan: This is basically like a penalty default, right?
Will: Yeah.
Dan: Put the burden of error on the side of the party that's most unequipped to fix it.
Will: Yeah, we do that with contracts. We have the contra proferentem rules where the party that drafts the contract should bite the bullet in the case of ambiguity or something like that. I'm not sure that always works, and for multiple reasons, it might not work. I do also wonder, I've read somewhere that this is partly exacerbated by the collapse of the committee system in Congress. I think it seems like it used to be more common for legislation. Like, the text would start in the committee and get carefully worked over and sort of going to the floor where there were sort of amendments in good faith or something like that. And now, it so often happens that legislation-- like the House will vote on something and then we'll think that the Senate will never pass it, but then all of a sudden, they'll pass it because it's part of some deal to avoid the shutdown or the legislation just all get stuck into omnibus bill or things like that. Maybe there was never really a golden age of Congress where the lawyers carefully pored over the language as carefully as the Supreme Court clerks do. But it does feel like-- [crosstalk]
Dan: It's weird because if that is the case-- I'm not sure, but if it is the case, it would have coincided with the period where the court did not do that. The court was kind of just like, "Ah, what do we think this is really getting at? Yeah, let's do that." And it sort of seems like a real mismatch.
Will: Yeah, well, exactly. And it does seem to me that the First Step Act, my memory is it was made law in a somewhat chaotic fashion. Like, where it was sort of a little bit of surprise that there were the votes and a little bit of surprise that Trump was then enthusiastic about signing it. And so, everybody kind of rushed to get it done. And maybe that just makes bad law. There's this saying, hard cases make bad law. And then, Fred Schauer wrote an article saying, all cases make bad law. Like, that judicial lawmaking was a bad way to make law, and we should have more. But now maybe the truth is Congress also makes bad law--
Dan: Law is just bad.
Will: Well, [chuckles] it's hard to make good law.
Dan: Yeah.
Will: Justice Kagan's opinion is very well done. I could easily see putting this in a 1L course to sort of teach some of the basic questions about interpretation, and the divide is interesting.
Dan: You'd really need to take the editor's pen to the dissent though. Gosh, his opinion did not need to be 33 pages, the dissent.
Will: I agree. And his opinion also goes further-- I mean, I am with the formal logic point that when it does not have A, B and C, and then you try to distribute it, that flips the 'and.' That's why he seems to go further and deny that you can ever distribute. He seems to think, even if you get rid of the negative that have A, B and C is different from have A, have B and have C, I read him to sort of reject all attempts at that.
Dan: Yeah. He suggests that's like rewriting the language, which I just don't-- like he breaks out the strikethrough and bold and stuff like that. I don't know if I agree with that.
Will: Yeah, he might be right about sentencing guidelines. I'm still sort of a little unsure about this kind of the subfight about, like can you have a two-point offense that adds no points?
Dan: Yeah. I did not come to a resolution on that question myself. And it'd also strike me as how obstruse it was. It seems like it can't be the thing that the case turns on.
Will: Yeah.
Dan: Right. If it's really that unclear whether it's possible for there to be a two-point offense, that's a zero-point offense or whatever, then we need to look somewhere else for a better answer to this case.
Will: Yeah, but it's nice-- Of course, it's always nice to see Justice Gorsuch deploying his formalist pen for the little guy. I feel like this is a signature move we expected from Scalia sometimes, and Justice Gorsuch does it all the time.
Dan: Yeah. Sometimes, his opinions are stronger than anyone's. I found this one a little tedious. His tone got a little grating on me in this one. I think this one could have used a little bit more editing.
Will: Are you going to say the Gorsuch style thing?
Dan: No, you can say it.
Will: No. When you said his tone is grating, I wasn't sure if you were going to--
Dan: How are you doing with Trump v. Anderson, by the way?
Will: Never better. [chuckles]
Dan: So, yeah, I don't know. There's a lot in those 33 pages. I don't know if I have a ton else to say about them though.
Will: I agree.
Dan: I mean, he seemed very convinced that this was the only way to read the statute, and I don't know. I came away from the Kagan opinion saying, like, yeah, I mean, people use language in different ways, and sometimes they use kind of-- and she made this pointed argument that I found somewhat persuasive, that sometimes you phrase things in such a way so you don't end up repeating the same words over and over, but you can kind of still get the meaning from context.
Will: I guess, so here's one version of the question though, is if Congress had been devoting its brain power to the statute carefully and had clerks read it up and somebody said, "Yeah, I think we better put in an 'or' instead of 'and,' that would better get at what we're trying to do here," are you with Justice Kagan that you've been like, "There's no point, 'and', 'or', whatever word we put in, it won't really make a difference either way." Or would you agree that 'or' would be a better way of expressing what Congress was trying to do?
Dan: I think 'or' would be probably somewhat better. And maybe you're right that there would never have been a circuit split if they had done that.
Will: Now, I still think Justice Kagan makes the point, which may be right, that we don't ask what's the best way to draft the statute. We try to interpret the statute we have. So, the fact that they did it in a suboptimal way doesn't necessarily mean it comes out the other way. But I'm at least pleased to hear that.
Dan: It's probably right, although I'm still thinking about it. Again, as I said, I found not unpersuasive, wholly unpersuasive, her argument that you could just repeat the same dispute if you had 'or.' I think if you really want to eliminate the ambiguity, there's ways to do that. I don't buy the claim that 'or' completely resolves the case 100%. I think that there still would be arguments there, and there are ways that the statute could be written that would do that.
Will: So, what they should have said is, it does not have any of the following.
Dan: Yes, right. That's easy. If he finds it at sentencing the defendant does not have any of the following or finds that only-- any of the following is present or any number of ways you could write it, that would be very clear.
Will: Fair enough.
Dan: Okay. Anything else?
Will: I don't think so. We got this done in time.
Dan: Thanks very much for listening. Please rate and review the podcast at the Apple Podcast app or wherever else you get your podcasts and help us in other ways to discover new listeners as we think there are many people out there who would enjoy the show who have still not come to listen to the show yet. Please visit our website, dividedargument.com, where we have transcripts of the episodes posted, usually within a couple of days of the episodes being released. store.dividedargument.com for merchandise. Send us an email at pod@dividedargument.com which we occasionally reply to and sometimes integrate into feedback on the show. Or leave us a voicemail, 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. I've recently bought my second Divided Argument t-shirt from the Divided Argument store.
Dan: I can set you up so you can buy those at cost. You don't have to just buy them through the regular portal, but fine if you want to do it like that.
Will: I'm happy to do it.
Dan: Well, if it's good enough for you, it should be good enough for our devoted listeners. All right, well, if there is a long delay between this and our next episode, it's because Will got annoyed at me for my incessant needling about Trump v. Anderson.
Will: Argh, I saw that coming.
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