We break down SEC v. Jarkesy and City of Grants Pass v. Johnson.
We break down SEC v. Jarkesy and City of Grants Pass v. Johnson.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. You know what people don't predict about our podcast, Will, is that they're going to listen to the new episode, and it will be the same audio as the previous episode.
Will: So, that was my bad. I was in a rush to upload our last episode, Felony-Adjacent. And for a hot minute, I instead uploaded another copy of Small Victories, Episode 13, which come before it. I figured out within a few minutes and uploaded the next one, but not before the old one got pushed to everybody's podcasts. So, if you listen to this in your podcast app, you may have had some trouble figuring out that you had to delete the last episode and redownload it. So, that'll probably hurt our stats and our discussion of Rahimi. Sorry, Dan.
Dan: So, if you didn't get it, go back and it should be available now. But this is what I get for taking the night off to go see Inside Out 2. Well, worth a watch. You said you saw that on opening night.
Will: Yeah, opening day with our kids, like at noon.
Dan: Yeah. There was a little bit of a Supreme Court hook in there. Did you remember that?
Will: No. Tell me.
Dan: Part of the movie where the characters that are inside, the protagonist Riley's mind are trying to get through her mental landscape. They find this parade of possible careers for her, and they end up jumping on a balloon, a float. That's a Supreme Court Justice.
Will: Oh, I remember that. Yeah.
Dan: Yeah. There's often a hook to our jurisdiction, even when you're not expecting one.
Will: So, you give it two thumbs up? Well, how would you rate the movie?
Dan: It was great. It was great.
Will: Yeah.
Dan: It was very entertaining. But it would have been so much more pleasant an experience, if I'd known that the podcast was in safe hands.
Will: [chuckles] Well, you thought it was.
Dan: I did. I did think it was.
Will: You had a great time, huh?
Dan: You do fine, most of the time. You're maybe not quite as teched up as I am, but you're learning.
Will: Not the best.
Dan: Hopefully, we're not going to have another incident like me having the bad audio and you not noticing, that wasn't best. But let's just check in where we are. We're recording this on Friday, June 28th.
Will: Uh-huh.
Dan: The court had what we-- when we went into early summer, you and I had both assumed this would be the final decision day, today or yesterday. And it turns out that's not the situation. The court is pushing into July, which it rarely does. It does every once in a while. I guess it does when it's having a little bit of extra difficulty getting all the opinions over the finish line. And so, the final day is going to be Monday, July 1st.
I'm about to go on vacation, but I am going to bring my equipment with me, and we will try to sneak in at least one episode during that break, and then we will come back and do a look back at some of the bigger cases that we just didn't have time to get to during this rush.
There's a bunch of stuff that I'm excited to talk about that we're not going to talk about right-right now. For example, I think this case, Harrington v. Purdue Pharma, the bankruptcy case, super, super interesting, interesting breakdown of Justices on the court, some pretty interesting criminal and criminal procedure cases to talk about. We're hoping eventually to circle back to Moore, the tax case. Anything else that's on your B list of cases?
Will: Well, I take it we're not going to have time to talk about the overruling of Chevron today.
Dan: Well, we will mention that it happened, and then hopefully, that will be our next episode, my vacation episode, that I'm hoping to squeeze in.
Will: Well, you're also going to have to squeeze in the stuff that comes in on Monday, which is--
Dan: True. Yeah. So, maybe let's catch people up. So, what is coming on Monday, at least? Again, the only institution that is more unpredictable than this podcast is the Supreme Court. So, who knows what they're going to do? But [unintelligible [00:04:44].
Will: I was told that the July 1st, the deadline, it used to be this hard stop because somebody, maybe Justice Brennan, had tickets to the ferry to Nantucket or something, and it was like, you had to buy the months in advance, and you couldn't make it for the summer if you didn't make that date, so he had to be on the ferry. Now, that they all either stick around or arrange their own transit, I guess it doesn't focus the mind.
Dan: Yeah. I wonder if the Supreme Court pays their ticket change fees if they go over.
Will: [laughs] [crosstalk]
Dan: Yeah, they try so hard to be unpredictable. Like, if you look at the website, there's this thing on the website that always says, “Today at the court,” and it says what's going on, and usually nothing. But on opinion days, it says, “The court will convene for a public non argument session in the courtroom at 10:00 AM. The court may announce opinions which are posted on the homepage after announcement from the bench.” So, the court was definitely going to announce opinions today. Everyone knew that, court had said that. Basically, it's the whole reason to have the session. And yet, they won't even commit on the website to saying they will announce opinions. They may. They just want to keep that optionality open.
Will: Well, you never know. Like, they might show up and suddenly decide not to issue one of the opinions and somebody might accidentally post to the website anyway and then--
Dan: Oh, yeah. We'll get to that in one second. I did want to say one other thing though, which is that, we have these non-argument sessions, these opinion hand downs, and the Justices’ restatements. Often Justices dissent from the bench, that happened today, that happened yesterday. And yet, the audio from those sessions continues to be unavailable for months. They release it months later, unlike the audio for oral arguments. I find that indefensible, but that means you're likely to defend it for me.
Will: So, it's funny. It used to be one of my whatever hot take Supreme Court reform plans back before they did same day audio, because they were worried that the attorneys would grandstand too much, if they did same day audio. My pitch was they should not do same day audio, but they should do same day audio for the hand downs, because there's no chance the attorneys to grandstand, and so it'd be better.
I have come to think better of that view, because I realized the problem is not the attorney's grandstanding. The problem is the Justice's grandstanding. I think the behavior, the number of dissents read from the bench, and the way in which the Justices would read opinions from the bench would deteriorate markedly if they were available Sunday.
Dan: Yeah. Although they still do grandstand. There is this choice that dissenting Justices have of when to read your dissent from the bench. That's a signal that case is a really big deal. So, today, Justice Sotomayor read her dissent in grants pass from the bench, and Justice Kagan read her dissent in the Chevron case from the bench. But they don't always do that. And so, they still do it, but it's unclear who they're doing it for. I guess they're doing it for the media, who will then rewrite what they say. But I don't know, I-- [crosstalk]
Will: [crosstalk] -into the media, this is one that they care about, so then the media can pick up on that.
Dan: Yeah. But it just seems like this would be-- We have all these situations where the media is just trying to read the opinions and they screw-- CNN-- didn't some of the media screw up with the holding of the healthcare case was. It's like, if you just live stream the opinion announcements, everyone could just listen to that and not be doing this elaborate thing where you're reloading the SCOTUS blog page or try to get them to translate for you what's happening.
Will: Yeah. No, look, while I do think the court would behave worse if they were live streamed, I'm still open to it and to accelerate the contradictions theory that, we just deserve to see our Justices and how they behave. If some of them would grandstand, and that's the world we live in, so be it. So, I'm not saying I'm totally against it. I'm just saying it would be bad. Similarly, well, it's also the morning after the presidential debate, and we can have a parallel discussion about when it is good for us to be able to see the unpleasant parts of the behavior of public officials and public candidates, but we'll just leave that.
Dan: Before we recorded, I was trying to think if I could work in some kind of Meta joke about the debate about our repartee, but I couldn't quite nail it.
Will: [chuckles] If you want me to just spout lies in a confident tone while you stammer confusedly, we could--
Dan: In fairness, that is what some meaningful subset of our listenership or people that have tried to listen but choose not to, I think goes on that you say absurd things, and then I'm like, “Oh, well, you're such a nice guy.”
Will: [laughs]
Dan: Sometimes I feel like that's what I'm doing. Maybe when we get into some of that, some of the ethics stuff. But-- [crosstalk]
Will: Coming Monday, we have, we think, the Trump immunity case, the cases about state regulation of social media.
Dan: Moody and NetChoice.
Will: Moody and NetChoice from Florida and Texas. One other administrative law case, Corner Post, which is about the statute of limitations for challenging things under the APA, but a sleeper, potentially very significant case with a very powerful amicus brief by Aditya Bamzai, that I would not be surprised if that goes on our summer catch up list.
Dan: Yeah. And it seems like it must be one that the court is struggling with or that has divided the court more than some people would have expected. It's a February case, so it's not a case from the very last sitting in April. Some of the controversial cases from later sittings have already been decided. So, City of Grants Pass, which we're going to talk about today. That was an April case. They got that out. So, clearly, that one is going down to the wire.
Will: It could also be that it interacts with the Chevron cases, and so it was hard totally get the ink dry on it until the Chevron cases are out.
Dan: Yeah. Maybe there's language in it that would reveal what was happening. Sometimes they try to just release those opinions on the same day.
Will: Right. They go in order of seniority or reverse seniority when they announce seniority--? [crosstalk]
Dan: Reverse seniority.
Will: Reverse-- Yeah. Okay. So, since Roberts announced the Chevron cases today, they could have announced it the same day without it going first. But still.
Dan: Yeah.
Will: Anyway, that's what we have for Monday. But since we last recorded, we have, what, nine, eight and a half cases that have come out, many of which cases that we're not going to talk about.
Dan: Yeah, a lot of cases.
Will: We had two cases on Wednesday, Snyder v. United States, a statutory interpretation case, and Murthy v. Missouri, which was a First Amendment case about the jawboning of social media companies but turned out to be a standing case.
Yesterday, we had SEC v. Jarkesy about jury trials and public rights and the right to have an Article III jury trial when the SEC imposes fines on you. Harrington v. Purdue Pharma, the bankruptcy case that's going to destroy the global settlement for OxyContin victims. Ohio v. EPA, which is, I guess, technically not a merits case. It technically is a shadow docket case. It's just about to stay but the court basically treated it as a merit’s docket case, and it ended up 5-4 as being Neil Gorsuch. We had a DIG in a case called Moyle v. the United States, which was a big case about the--
Dan: Yeah, which day did that one come out?
Will: Moyle-- You are making fun of me.
Dan: I'm not making fun of you.
Will: So, the opinion was officially issued on Thursday, the DIG in Moyle, but it was apparently uploaded to the Supreme Court's website accidentally the day before on Wednesday. Now, nobody saw the link, and then we only lined up when Bloomberg posted it later. So, the dominant theory, which I think is probably true, is that Bloomberg must have set up some software that scrapes any file uploaded to the Supreme Court's website. And so, my guess is they didn't even put the link out, but somebody accidentally uploaded it, so that you could later put a link out to it, took it down, but not before the scraper caught it.
Dan: Yeah. Did they actually get a PDF? Because the thing that I saw circulating online was, like, in HTML format.
Will: Yeah. I think that the standard view is that's like what the scraped text of a PDF looks like.
Dan: Okay.
Will: Like, somebody put up the PDF, but then the scraper just got that off.
Dan: I don't know why they couldn't have just deleted and downloaded the PDF.
Will: I don't know. Yeah.
Dan: Yeah.
Will: That's a 5-4, I think, DIG with lots of different opinions about whether the emergency room statute pre-empts Idaho's abortion law, which is funny, because it was a case of cert before judgment, so the 9th Circuit hasn't even decided it yet, and the court rushed in to say they'd like to decide it, and then they decided that actually the 9th Circuit can go first.
Then today, we had the Chevron cases, a Loper Bright v. Relentless, Fischer v. United States, which is another substantive criminal law case, about the January 6th prosecutions, and City of Grants Pass v. Johnson, about whether the Eighth Amendment applies to homeless people.
Dan: All right. So, anything [crosstalk] else to say, by way of preliminaries?
Will: Where do you want to start?
Dan: Well, maybe we should do a Jarkesy-
Will: Sure.
Dan: -first. I imagine this one is near and dear to your heart. You're featured a little bit in this case, and it's a lot of issues that you have thought about.
Will: It is. I think I wrote a blog post about it at The Volokh Conspiracy after the oral argument. I've written a little bit about the role of so-called non-Article III courts or administrative agencies in adjudicating things that maybe belong in federal court. It's also part of the Supreme Court and the Fifth Circuit's war on the administrative state, and importantly, a Fifth Circuit case that was not reversed. [chuckles]
Dan: Stop clock.
Will: No, they also-- The bump stock case. I think the bump stock case was also a 5th Circuit case that was not reversed.
Dan: Yeah.
Will: I get stop clocked twice a day, so that's our two, apparently.
Dan: Yeah.
Will: So, the SEC, Securities and Exchange Commission, under authority given to it by Dodd-Frank in 2010, when people engage in various kinds of misbehavior and it wants to fine them, it has the option to fine them, either by going to federal district court and suing them for civil fines, or by going to itself and suing them for civil fines in front of the administrative arm of the SEC.
That is what happened to Mr. Jarkesy. He went to the Fifth Circuit and said, “That sure seems unconstitutional to me.” And the Fifth Circuit said, “We agree with you three times.” So, the Fifth Circuit said there were three constitutional problems with the SEC's imposition of civil fines in this case. One problem, they said is it violated the non-delegation doctrine, that the SEC could choose whether to go to itself or go to the courts. There was no real constraint on that choice. And the non-delegation doctrine forbids unconstrained choices. So, that's unconstitutional.
Another problem, they said is that administrative law judges and the SEC violate the separation of powers because they violate the peekaboo principle that you're not supposed to be protected from presidential control by two layers of removal protection. The ALJs can only be removed for cause by the head of the SEC. The heads of the SEC, we pretend, can only be removed for cause by the president, even though nothing in the statute says that. And so, there's too much insulation.
Neither of those things are what the court decided. The court decided was the third thing, that the right to trial by jury or the right to civil trial by jury.
Dan: Seventh Amendment.
Will: Seventh Amendment, prevents an agency from imposing civil fines in an administrative proceeding, they have to go to a federal court where you'll get a trial by jury.
Dan: Yeah. At least prevents this agency. I guess we have a question-- I'm curious how categorical this holding is.
Will: Yeah.
Dan: But it's still further, a little confusing, because it seems to me like there's this Seventh Amendment question, but it seems to interact with this question about Article III-
Will: Yes
Dan: -which is, so, question one is, when are you entitled to a jury? But then a related question is, well, what kinds of things can they do not in a court?
Will: Yes.
Dan: The first thing can come up all sorts of times where you're already in court and there's something and the question is, does the judge get to do it, or does the jury have to find it? Is it equitable? Is it law?
Will: Yeah.
Dan: But here, we're not even in a court at all. I don't think there'd be any way to empanel a jury within the SEC.
Will: You could.
Dan: Could you?
Will: Well.
Dan: Do we think that would comply with the-
Will: No.
Dan: -Seventh Amendment?
Will: I think you're right. These things are entangled and this is confusing. And so, this is, if I were choosing how to frame these questions, I would frame them by first asking the Article III question, by first asking, is this something that the constitution requires to be in front of a judge and a court, or is it something that doesn't have to go in front of a court and can be done by an executive official?
And then if you ask it in that order, then I think the Seventh Amendment, which refers to suits at common law, you might say, “Only applies to something that's supposed to be in a court.” If it's an administrative agency, it's not a suit at common law. Once it's in a court, the jury of trial also kicks in. So, you might say, the real question is, does this belong in court or in the agency? And then if it belongs in court, Seventh Amendment kicks in, if it belongs in front of the agency, it doesn't kick in.
Court does these in reverse order. So, the court first asks like, “Is this conceptually a suit at common law? Like, is this thing that should be a suit at common law,” in which case the jury trial right presumptively attaches. But then they still ask-- There's a doctrine about when you can put things in an administrative agency instead of a court called the public rights doctrine and they still say, “Well, the public rights doctrine would be a valid reason not to apply the Seventh Amendment.” So, they still basically ask those two same questions-- [crosstalk]
Dan: They muddle them together, right?
Will: Well, I put them in the opposite order.
Dan: Yeah.
Will: Then Justice Gorsuch as a concurrence, also muddling them together, [chuckles] but in a more clear way, or I don't know, whether it's more clearer. Ultimately, I think they kind of go together. I think the advantage of focusing the Seventh Amendment one is just, that's the way the parties argued it, so the court's stuck with that framing. I think that maybe lets the court issue a potentially narrower ruling. So, if the court had issued a statement about the public rights doctrine on its own, that might potentially affect every agency adjudication. By leading with the Seventh Amendment, this case is basically, I think, about civil fines that are for punishment for the kinds of things you could have been sued for civil fines, the kinds of things that familiarly belong in court, and then that lets them take a nice modest bite out of the administrative state.
Dan: Okay. So, can you help us to walk through the analysis a little bit more? So, the court says, “We first explain why this action implicates the Seventh Amendment.”
Will: Right. It's not a suit at common law, because it was in front of the SEC. Why is this supposed to be a pseudo common law, right?
Dan: That's because it looks like common law fraud?
Will: Yeah. It's obviously a substitute for a common law fraud action. The worry of the Seventh Amendment is that we will replace common lawsuits that belong in front of juries with something else. And so, it's obviously doing that such that it raises, that it triggers that concern.
Dan: Okay. So, that's the threshold question. And then what's next?
Will: Then the question is, does this fall within the public rights exception, which is again, an exception. The doctrine is mostly about when Article III more broadly, what things have to go to a real court versus what things can go to either a fake court, like a bankruptcy court, or the tax court, or to an administrative agency that doesn't even pretend to be a court?
The court has had this doctrine for a very long time that dates back to a case called Murray's Lessee v. Hoboken Land & Improvement Co in 1856. Of course, the history is even further back than that. It's very confusing what falls in this category. The court said various different things. But the question is, is this within the public rights exception in some way?
Dan: Yeah. I didn't see the court in this opinion, opinion by Chief Justice, give me a very clear statement as to what that category includes?
Will: I think that's fair. The court has, as far as I know, never really-- Well, the court has given many statements. But the two recent precedents on this, one is Stern v. Marshall about the bankruptcy courts, and the other is Oil States v. Greene’s Energy Group about inter partes patent review. Both of those cases give five or six possible definitions and then don't fully distinguish between them. I don't know that the court did a lot to move the needle on those categories.
The big argument in this case is, does the fact that this is taking place under a federal statute in an area where Congress has a lot of power, is that enough to make it a public right? There are some cases and some commentators who would say the answer is yes. Would say, “Look, Congress controls interstate commerce. They don't have to let you sell securities interstate commerce at all.” And so, they can say, “If you want to sell securities interstate commerce, you've got to accept the authority of the SEC.” That's basically the argument.
I think John Harrison at University of Virginia has some scholarships out of endorsing that argument. That's basically the argument the dissent endorses. And the court says no to that. If that's not enough to make a public right, that would be way too broad, that would essentially let Congress move them.
Dan: What wouldn't fall into that category if Congress is acting pursuant to its enumerated powers?
Will: Well--
Dan: Is it has to be something where Congress has exclusive jurisdiction?
Will: Yeah. So, this is what's tricky. What definitely wouldn't fall into this category are in some of the bankruptcy cases the court has decided. Because in bankruptcy cases, you often have state law claims being litigated, because you go to bankruptcy court and you bring all of your actions for debt, and contract and tort before the bankruptcy court.
Dan: Those are between individuals,-
Will: Between individuals.
Dan: -potentially.
Will: Exactly. So, that's the easiest case, is a state law claim between two private parties is definitely not a public right under any of these formulations. But one view would be as anytime you have a case between the federal government and an individual, that's enough to make it a public right. And another version would be anytime it's under a federal statute, so like the employment discrimination statute says enough to make a public right, and the court's not willing to sign on to either of those propositions.
Dan: What is the Baude view?
Will: The Baude view is that a public right is anytime you don't have a life, liberty or property interest. So, I'm with Justice Gorsuch, actually, in thinking that the public rights doctrine is smushed together with the due process clause. And so, the due process clause that says you have a right to due process for life, liberty and property are taken away from you, means roughly judicial process. And so, if they're taking away a privilege, like the right to use the public lands or the right to immigrate to the country as a non-citizen, those don't trigger due process or the right to an Article III judge, but if they're taking away property or something they do.
Dan: Does your view necessarily imply the overruling of Goldberg and Mathews in a due process cases, so that the new property wouldn't be treated as property for due process, so like taking away your social security benefits or whatever?
Will: Yeah, good. So, in Goldberg v. Kelly, the court recognizes as property things that were not traditionally property interests. And then in Mathews v. Eldridge, the court gives them a form of due process that is not judicial process. My view is, you don't have to overrule those, but it is important to put them in the right box. So, essentially, what happened in those cases is, first, the court extended the due process clause to things that were not usually property, and then it gave them a kind of protection that was not usually due process.
You just accept both those moves are going on, you could still uphold them. You just don't want to get confused and take Mathews v. Eldridge style due process, which does not necessarily involve a judge, and apply that backwards to real property or real liberty, which is the debate the court had in Hamdi about whether or not, what kind of process was necessary for the detention of people.
I think just recently in another case we talked about in this podcast, there was a Justice Gorsuch’s concurrence, which just stated as if it was true that Mathews v. Eldridge doesn’t apply to real deprivations of liberty. It only applies to deprivations of government privilege. I liked that, because--
Dan: Which case was that? I’ve already forgotten which case it was.
Will: It was the civil forfeiture case.
Dan: Oh, yeah.
Will: So, those cases are not necessarily wrong. You just have to sideline them. In my view, the growth of administrative adjudication started, was that kind of combination of moves that it used to be-- we had sharp categories. It was either you had a real liberty or property interest, in which case you had a right to real judicial process, or you had a pure privilege, in which case you didn't really have any rights at all and just got whatever the statute provided.
Over time, the administrative law adjudication started ramping up the amount of process you were entitled to for privileges and ramping down the amount of process you were entitled to for real rights, and getting rid of any distinction between the two, sometimes without totally being aware of it.
Dan: So, what had the law said prior to this point because there's this big debate about precedent here? There was this case, Atlas Roofing, which the dissent makes a big deal about. The majority here tries to suggest is it’s not all that much and some of the ways in which they do that are interesting.
Will: [chuckles]
Dan: What was that case about? And does that case really provide much guidance here in your view?
Will: Yeah. I think to figure out the law is hard, because there are a series of cases that are not quite consistent with one another. And so, part of the question in this case is like, was Atlas Roofing is still good law, or had it been implicitly overruled by one of the subsequent bankruptcy cases?
Dan: Yeah. Some of these are coming up in different contexts. They're coming up in like the bankruptcy context, where it's not exactly the same thing.
Will: Right. So, Atlas Roofing company is a case of 1977 where the Supreme Court said, “Neither the Seventh Amendment nor the public rights doctrine stops Congress from letting an administrative agency adjudicate whether you violated OSHA, the Occupational Safety Health Act.”
So, it's a public rights case, and the agency can effectively fine you in front of itself for violations of OSHA, that's a public right rather than a private right. That's somewhat similar, you might think, to SEC v. Jarkesy. Again, we have a new statute giving you rights and then saying the agency can enforce those rights against you in front of itself without any Article III or jury problem. And now Jarkesy, the court says, “Actually it is a problem, and Atlas Roofing is wrong,” or pretty wrong. Wrong enough that we don't have to worry about it too much.
Dan: It doesn't say it's overruling it. It's kind of-- [crosstalk]
Will: It definitely does not say it's overruling it. I think they certainly imply that it's wrong. But they don't even necessarily say it's wrong as facts. They say it could be distinguishable.
Dan: Yeah. They also seem to say that like, “Everybody thinks it's unimportant or dumb.” This is-- [crosstalk]
Will: Or, before we have [crosstalk] four.
Dan: Okay.
Will: Atlas Roofing is like SEC v. Jarkesy, and that it also has the agency the agency-- The agency is proceeding against an individual to try to get a penalty against you. It's under a federal statute rather than under state law. The court says, “But Atlas Roofing is a place where the statutory claims aren't like common law claims. The OSHA violations don't look like some previously existing common lawsuit, the same way that fraud under the securities laws looks like common law fraud.” And so, we can distinguish it. I'm not sure the court really believes it cares that it's distinguished what they say. Then they also say, as you say, they're like, “It's not like this is that important of a case. The dissent chants Atlas Roofing like a mantra. But no matter how many times it repeats those words, it cannot give Atlas Roofing substance that it lacks.” And then it begins, this footnote, which I enjoy.
Dan: The footnote is funny. It says, “Reading the dissent, one might also think that Atlas Roofing is among this court's most celebrated cases,” as the concurrence shows, referring to Justice Gorsuch's concurrence. “Atlas Roofing represents a departure from our legal traditions. This view is also reflected in the scholarship. Commentators writing comprehensively on Article III and agency adjudication have often simply ignored the case.”
Then it cites a bunch of things, including Dick Fallon's article in the Harvard Law Review, which doesn't cite Atlas Roofing. And then also articles by John Harrison, you as well, saying, also you don't cite the article. Why did you not cite that article? [Will laughs] I'm sorry, articles that don't cite the case.
Will: This is funny. I and Fallon and Harrison are all cited just for the proposition that we don't cite Atlas Roofing, [chuckles] which is the funniest thing to be cited for. Yeah. Well, I thought it was--
Dan: It sounds like it's a real important case.
Will: It's an important case if you care about--
Dan: You didn't even put it in a footnote?
Will: In case we care about 1977 cases. My paper is about the broad problem of adjudication outside of Article III federal courts, and trying to provide a textual historical unitary theory that explains state courts, territorial courts, fake courts and administrative agencies. The administrative agency part of the paper just potentially upsets a lot of apple carts. So, I tried to lay out the first principles that we were just talking about in the general principles, but I didn't want to go one by one through every modern administrative law case and try to figure out which ones you could keep, which ones you couldn't. Because I didn't think it was that important. I think there are some foundational precedents in Atlas Roofing. I'm thinking it's time.
Atlas Roofing is definitely on the table. Atlas Roofing might well be wrong. You might be able to save Atlas Roofing through this distinction, or through greater includes a lesser distinction. I didn't want to have a lot to say about it to get into it. But it is true that I did not think it was one of the court's most celebrated cases. I'm happy to [chuckles] be cited and support that proposition.
Dan: Yeah.
Will: Then the next paragraph is like, “And here are a bunch of people who have cited it and who criticize it,” including Caleb Nelson, whose work on non [unintelligible [00:33:12] courts is especially excellent.
Dan: Especially excellent. Not just excellent.
Will: They don't call him especially excellent. I'm just saying that.
Dan: Okay. Yeah.
Will: No, the court says, “We express no opinion on these various criticisms.”
Dan: Yeah. Other than noting that the fact that they were made, they're not being offered for their truth.
Will: [chuckles] A different way of saying it is like, there's a huge scholarship on a non-Article III adjudication, at least a huge scholarship that the court thinks is worthy of--
Dan: Can you say that again? Sorry.
Will: Another way to think of it is that there's a huge amount of scholarship on non-Article III adjudication, or at least a huge amount of scholarship that the court thinks is worthy of notice. And that scholarship, in the court's view, is divided between those who criticize Atlas Roofing and those who ignore it, which suggests that it's not one of this court's most celebrated cases, whatever else you think about it.
Dan: So, Atlas Roofing apparently not celebrated by scholarly commentators whose main use is just to show what people are talking about, not without saying that those views are right or wrong?
Will: That brings us to the question of, so what's the bottom line here? So, the SEC now can't get fines by going along with the SEC. They have to go to court. My understanding is in the past few years, the SEC has shifted to mostly doing that anyway. The SEC usually has pretty good luck in court, because they go after people who are big fraudsters, and those people are not super sympathetic litigants. If you're another agency that imposes fines, then the question is how much you have to worry about supplying to you. The strongest view will be this will effectively apply to all agencies that impose fines under federal statutes up to and including OSHA, and then Atlas roving itself have to be overruled on its facts.
Dan: Yeah. That's problematic, because at least according to the dissent, there are some agencies that only are allowed to go within and do these intra agency adjudications. And so, what happens to them?
Will: They don't have the right to sue in federal court themselves.
Dan: Yeah. They can't make that choice.
Will: Certainly, a smart statutory form would be to give some of those agencies the authority to do so. Otherwise, they might not have it. The TSA, I think fines you-- If you try to bring a gun through security and stuff like that. I don't know if that's analogous to a common law crime or a common law penalty. Maybe it is. But if you're a person who's getting fined by an administration agency, you'll now have a Jarkesy fight about the analogy to common law claims.
Dan: Which in your view might not even matter, depending on how broad the doctrine is going to go after this.
Will: Right. I think probably shouldn't matter. I guess I would say, anytime they are taking your money away, that's a deprivation of real property. And so, the real due process clause applies. And so, unless you believe in some sort of very broad, like greater includes lesser thing, which the court rejects, then you ought to have a right to a real court, and then that real court, you have a real jury.
Dan: And so, that would extend to civil fines in your view, but it wouldn't extend to disgorgement remedies? [Will sighs] Because those are not legal, right?
Will: Well, so in disgorgement remedies, you are still losing property.
Dan: Yeah. Government just getting back the property, right?
Will: I'd have to think--
Dan: Would you think those have to be Article III, but not necessarily--?
Will: Sure. Right. I think those would go-- even the court has a complicated jurisprudence of when the Seventh Amendment applies to things like disgorgement remedies. Like, the fact that you call it disgorgement isn't enough to make it some of them are free. There's some real inquiry there.
Dan: Yeah.
Will: But it wouldn’t apply-- Another thing the SEC does is it just tells you can’t be a stockbroker anymore. I don’t think that the same analysis would necessarily apply to that. Thats not liberty in exactly the same sense. It’s complicated, because the right to carry out a profession is liberty, but it’s not-- You can at least make a different claim that that’s more of a privilege than the right to keep your money.
Dan: And so, that would potentially be, in your view, a public right.
Will: There’s at least an argument that’s a public right, more like the right to immigrate to the United States, which we send immigration court.
Dan: Okay. So, can you fit a case that's discussed in this opinion a fair bit? Murray’s Lessee, an old chestnut, can you fit that into your theory? Explain how that works.
Will: Murray's Lessee is, it's ironic because it's the case that the Supreme Court case that gives you the public rights doctrine, and it's itself hard to figure out why it's an example of a public right,-
Dan: Yeah.
Will: -basically--
Dan: Because I'm not sure it passes your test.
Will: Murray’s Lessee is a tough case. I will admit that. In Murray’s Lessee, there was basically a tax collector who ran off with the money. And then the pursuant to longstanding statutory and common law authority, the government took the money that he'd run off with, basically through distraint, which is an old writ that applies in taxation, and said, “That's the traditional way you proceed.” This is the public rights category. So, it does involve money. That's the sense in which you might think it's a due process clause. That said, it's in a context, taxation and particularly the collection of taxation money through distraint, that has just been always recognized as satisfying due process and as an exception to the normal principle that you get a judge. So, it might just be like its own history and tradition test. There is also, you drill into both the statutory scheme.
Dan: Does that mean that due process is informing the meaning of Article III?
Dan: Yeah.
Dan: Those two things work hand in hand?
Will: The way I would think of it is, due process says when you need a judge. Most of the time you need a judge, when you've been deprived of life, liberty and property. Not quite all the time. So, due process means something like traditional judicial process. So, you usually need a judge unless it's in one of the cases where traditionally you didn't need a judge. Like, other rights, where there's just a traditional exception or something.
So, due process is when you need a judge, and then Article III says, “Who's a judge?” And due process, when it says you need a judge, then you need a real judge. They can only give you fake judges, like legislative courts or administrative agencies if it's a case where you didn't need a judge for constitutional purposes. So, I would start with due process clause and bring in Article III and then the Seventh Amendment later. I don't know that anything really rests on the order of operations, but that's how I think through it.
Dan: Yeah. Well, it might provide more analytical clarity, at least.
Will: You might also say that in Murray’s Lessee, that because the person was a government official, they had limited due process rights. So, another common exception to traditional judicial process is military. The members of the military can be imprisoned and killed pursuant to the military justice system without a real judge. It might be that government tax collectors are like that. We shouldn't kill them.
Dan: Then applying that to modern circumstances, in your view, would you only limit that category to situations that look basically identical to those historical exceptions? Could you make analogies to those historical exceptions?
Will: I don't have a strong view about that. I don't have a strong view about that.
Dan: Okay. So, that's the Baude view. Back to the opinion, do we have more to say about the majority?
Will: I don't think so.
Dan: Okay. I think we've gone through it. So, then we have this concurrence by Justice Gorsuch, joined by Justice Thomas. So, he joins the majority completely, but says he wants to highlight the other constitutional provisions that reinforce the correctness of the court's course. And then he makes some of the moves that we're talking about here, which is he brings in Article III and he brings in due process.
Will: Yeah, exactly. I think Justice Gorsuch brings those two things together in a way that's much closer to how I would think about these things. I think because the court has built up more non-original precedent on Article III and on due process, it's easier for the majority to focus on Seventh Amendment, where there just isn't as much precedent getting in the way. But for somebody who is willing to more openly just think this through from first principles, it's easier for him to think it through that way.
Dan: And so, what do you understand his view of these questions to be and how it differs, if at all, from your own?
Will: I'm not sure our views differ that much, although I'm not totally sure I understand every aspect of his views or every aspect of my own. [chuckles] But yes, I understand-- he is willing to certainly forthrightly challenge cases like Atlas Roofing. I think he thinks that’s definitely an example of the incorrect new attempt to evade Article III. He does accept there is some historical category of public rights that can be settled without Article III and a jury. But outside of that narrow category, he would jealously preserve them.
Dan: Yeah. Can we just look at the key moves in his analysis for one second? This is on page 11, just to make sure I understand it. So, he has three steps. He says, “First, because the matter before us is one which from its nature is the subject of a suit at the common law, the responsibility for deciding it rests with the Article III judges in Article III court.” So, he starts with Article III. How broad is that category, that the matter is the subject of a suit at the common law in your view?
Will: I'm not sure.
Dan: Okay.
Will: I still think it's more helpful to start with due process and to say, to ask not what's the matter, but what's at stake, life, liberty, and property.
Dan: Yeah. Because here, he seems to still be maybe doing what the majority is doing is saying it matters that it looks like common law fraud, right?
Will: But again, he really doesn't still have that view when he gets to OSHA later.
Dan: Yeah. I guess I just would like to see a couple more sentences of explanation there. What about its nature makes it the subject of a suit at the common law? I really don't know. Okay. And then second, this is a little clearer, I think. Because the action SEC seeks to pursue is not the stuff of equity or admiralty jurisdiction, but the suit historically adjudicated before common law courts Seventh Amendment applies.
Will: Yeah.
Dan: That makes sense to me. And then third, then he comes to the due process clause here, where you think the analysis should have started. Because the penalty the SECs would deprive Mr. Jarkesy of property due process demands nothing less than the process and proceedings of the common law. Means the regular course of trial proceedings with their usual protections, not the use of ad hoc adjudication procedures before the same agency responsible for prosecuting the law, subject only to hands off judicial review.
Will: So, basically, I like steps two and three. I think you can mostly dispense with step one. I guess if step one is just a way of saying, what you get is the traditional form of proceedings. And so, if step one is his way of capturing the weird things like taxation by distraint or military justice or whatever, where the traditional form of proceedings is not the Article III proceedings, then maybe he's just putting the exception of step one and I put it later. But I think otherwise, those are the right questions to be asking.
Dan: Okay. Any other big things you see coming out of this opinion, this concurrence?
Will: I know.
Dan: Okay. So, then we come to dissent from Justice Sotomayor. It's a fairly long one. That's more than 30 pages. One of the things that the dissent really emphasizes is that apparently Congress has relied on the assumption that it could do this, and that there are lots of agency statutes allowing agencies to do stuff like this.
Will: Yes. Although again, we don't know exactly how many of them the court is imperilling, and I'm not sure this dissent is-- what is the this. [chuckles]
Dan: Yeah. Probably most of them, if these cases are litigated in the Fifth Circuit, which you might think we'll read this pretty broadly, and other circuits may as well.
Will: Sure.
Dan: Do you see the court being willing to take a follow-on case in the next few years, or do you think they'll just let the chips fall where they may?
Will: Look, I think the court is going to take a lot more administrative law cases. That's this clearly an area where they're really feeling it, in general. Will another one of them be another agency fines case? I don't know. I guess if there's a circuit split about whether the TSA can fine you bring it into an airport, I assume the court will take it and there may well be one.
Dan: Yeah. A big theme of her dissent, which I like thematically, which I do think that there's something to this just as a general matter, putting aside how it applies to any particular case. But she says, “The court's ruling reveals a far more fundamental problem. This court's repeated failure to appreciate that its decisions can threaten the separation of powers. Here the threat comes from the court's mistaken conclusion that Congress cannot assign a certain public rights matter for initial adjudication to the executive, because it must come only to the judiciary.”
I think that I like that point as a general matter, which is it is this odd feature of the court, which is it has these separation of powers cases. It has this very strident tone. But in doing that, the court is not just sitting in the background. The court is entering the separation of powers fray. There are separation of powers implications for the court coming in and telling Congress and the president that they can't do something they jointly agreed to do, and that it is a real threat to that constitutional structure when they do that overly aggressively, when they do that incorrectly, and so forth. And so, maybe, if nothing else, tonally to me, it suggests a little bit more humility on the court's part when it's jumping into these cases.
Will: It's funny. As a card carrying anti-judicial supremacist, I agree with you. I felt like this was one of the parts of the dissent that was playing the least well on the social media that I was reading. Justice Sotomayor objects that, “Enforcing the separation of powers violates the separation of powers.”
Dan: Yeah. I just tweeted out a couple screenshots from this right when the decision came down, and some of them got a huge amount of engagement. Some stuff like that, some stuff, people agreeing with it.
Will: I do worry that that objection falls a little flat in this case because of the jury issue. I think the thing we should most be worried about, of course, is the court arrogating large amounts of power to itself in the name of the separation of powers, as if it is the one branch incapable of abusing power and free from objections of self-aggrandizement. The jury very famously is not quite the same as the judges, and frequently annoys the judges and does stuff they don't like. So, when the court is instead aggrandizing power to 12 random New Yorkers, it's not totally immune from criticism or anything. But I think this should be a case where our hackles go up less.
Dan: Yeah. I think that's totally fair. That might be, for me, a bigger criticism of some of the thrust of the overall separation powers jurisprudence. But in this case, it is a little bit more complicated where the court can at least fashion itself as if it's standing up for the little guy and the importance of the jury. Look, the court has a bunch of history on its side. Like, there's the fact that the Crown was trying to do stuff without juries in the pre-revolutionary period was like a big thing the colonists were really unhappy about. And so, there are some things they can really point to.
Will: Yeah. I think there's this part of this dynamic on the court right now, and especially in June, where [chuckles] when you dissent from a case like this, you want a theme. You want a theme that Dan Epps will pick up on. It's not just like, “Oh, I read Atlas Roofing different.”
Dan: Nobody cares about what I pick up on.
Will: They care what you can pick up on. The podcasters generally, how about that? That's a good theme. That's a theme that rings. And in a way, you're incentivized to make that theme, regardless of whether your case is really the fairest example of it. That's not Justice Sotomayor point, obviously. You can write the dissent, like, you see dissents that are like, “The court is twisting language in unbelievable ways, because they interpret the word corruptly to mean something different than I interpret it,” or whatever. But I just think this might be one of the cases where the-- the case is a big deal. But I don't know that the standard stock critiques quite apply to it in the usual way.
Dan: Yeah. It's interesting. We're going to see a dissent from Justice Sotomayor in a minute, that is not a separation of powers case exactly, but it cuts in the other direction. Right here, she's saying, “This is judicial aggrandizement.” And in the next case, she's going to say, “The court is not aggrandizing itself. It's not telling political branches of government what to do.” And that's bad.
Will: Judicial aggrandizement is bad in the Fifth Circuit, but good in the Ninth Circuit, unless you're conservative, it’s the other way around.
Dan: Yeah. But that said, I do think that I do find something a little grating about some of this court separation of powers opinions in particular, if nothing else, rhetorically. This advance, this naive view of separation of powers and this chiding schoolhouse rock tone to them. And so, I kind of like this criticism of the larger project, at least as the rhetoric behind the larger project, if that makes sense.
Will: Yeah. Well, there are two ways to think about critiques of the judicial deconstruction of the administrative state, or two different-- Some people believe in doing that, because courts are great, and we need to make sure courts have more power. And some people believe in doing that, because even though courts suck, agencies suck more. I'm definitely more in the second category, [chuckles] the separation of powers pessimist rather than separation of powers judicial supremacist.
I know we're not going to talk about it, but I found some rhetoric like this in the Chevron cases today as well. There were these parts where the court was like, “These are cases about interpreting law. And who interprets law, but courts.” The idea that agencies might know something special about law, that's ridiculous. They're not full of lawyers who've taken administrative law, study administrative law does that.
[laughter]
Will: So, yeah, I would like to see less judicial supremacy from my separation of powers doctrine too. But we're not going to--
Dan: Okay. Do we have more to say about this one? There's obviously a long opinion--
Will: No, but let's talk about Grants Pass.
Dan: Okay. This is one that I was really interested in and looking forward to reading-- Not so much because I had any doubt about the outcome. If anything, I guess I'm surprised that it wasn't even more lopsided than it was, but because it's an interesting and challenging set of questions. And it's one that relates to stuff that I taught every year when I was still teaching the 1L crim law class before I had migrated over to con law, so I could have a chance to use your casebook. So, basically, what's the case about? This is when we get a lot of people asking us to preview it and talk about it. We have limited bandwidth, we do our best, but we are finally now talking about it.
The big picture, there's a bunch of 9th circuit covers the whole West Coast. There had been an earlier 9th Circuit decision which had said that, “Under the Eighth Amendment cruel and unusual punishments clause, municipalities could not enforce laws against public camping and sleeping outside against homeless individuals, when there weren't available housing alternatives for them.”
Relying on this weird case called Robinson v. California that gets taught in a lot of 1L criminal law case classes, including mine, even though it's not really representative of a big swath of doctrine. But basically, in that case, there was a law that said, “It shall be a crime basically to be in Los Angeles while being addicted to heroin.” So, in Robinson v. California, there was a California statute that made it a criminal offense for a person to be addicted to the use of narcotics.
Will: Not to have them.
Dan: To use them or possess them to have the status of addiction.
Will: How would they prove that though?
Dan: Well, I think most of the time, it would involve proof that you possess them. Maybe some other facts. But you can imagine hypotheticals where someone is addicted without ever having voluntarily used the drugs, right?
Will: Yeah, sort of. It's just weird like, you possess them and you're charged being addicted, and you're like, “No, no, I just use it socially. [chuckles] No, I'm just dealing. Don't worry.”
Dan: Yeah, it was a dumb law, and one that presumably was not really necessary for the state to achieve its objectives. But the court in that case, a 1962 case, so going way back, said, “Well, that law violates the Eighth Amendment just categorically. Not because the punishment is too severe, but because it's criminalizing a status.” It says, “Even one day in prison would be a cruel and unusual punishment for the crime of having a common cold.”
Will: Yeah.
Dan: So it stands for the proposition that you can't criminalize status and put differently, it's often understand for the proposition that to criminalize something, the state can be able to point to some of the traditional elements, like an actus reus, evil act, which is often accompanied by an evil mind, the mens rea. Super interesting case raises a lot of questions, tease up stuff about core criminal law, concepts about volitional acts, and mens rea and all sorts of things, like that. But potentially, a case that, if you read it more broadly, could be really destabilizing for criminal law. The question of how broad the proposition it stands for was addressed in this follow up case, Powell v. Texas, six years later, which was about a law criminalizing being intoxicated in a public place. And so--
Will: Not being an alcoholic, but you have to actually be intoxicated.
Dan: Yes.
Will: Okay.
Dan: Being in a state of intoxication in a public place. You could make similar moves. You could say, “Look, being an alcoholic, that's a status. And if you're an alcoholic, you have to drink.” And so, you're criminalizing something-- you're just criminalizing people based on their status of being an alcoholic. But the court says, “No, that fudging move that I just tried to do, that doesn't work.” There's not a majority opinion in the case, but there's a plurality by the staunch conservative, Justice Thurgood Marshall that says, “No, that this law is different than the Robinson law, because it applies to conduct, even though it is conduct that is very hard or functionally impossible for someone to avoid if they have a certain status of addiction to alcohol.”
It's terrible, but you can see the court's concern of the slippery slopes. Well, you say, “Okay, what about the person who robs people to get the money to feed their addiction?” They say, “I was compelled to do that by my addiction.” And so, there's this concern about going down this slippery slope. The court had seemingly really limited Robinson to this very unique fact pattern, had not been extended by the court, a very small number of lower court cases relying on it in the decades since for some kind of unusual laws. But it wasn't seen as this big font of generative precedent.
And so, here in this case, an opinion by Justice Gorsuch, that's what happens. The court continues to see this Robinson case as an outlier, does not overrule it, but says that looking at some ordinances from the city of Grants Pass in Oregon, where I am traveling to Oregon tomorrow, Grants Pass in particular, but I don't think we'll make it through Grants Pass.
Will: Where is Grants pass?
Dan: I don't even know if I've ever been to--
Will: Is it the nice part of Oregon, or the nicest part of Oregon?
Dan: Well, the whole state is quite nice.
Will: I know of some not nice places.
Dan: Well, according to whom? I think it's all quite nice. It is sort of south part of Oregon.
Will: Okay.
Dan: So, very far south. So, I've actually never-- I don't think I've ever been down there. So, we're going to be in this central to north part of the state.
Will: Right.
Dan: But they had ordinances that prohibited camping in public, that included staying in your car and sleeping in public property. I think the sleeping part of the case ended up dropping out, because one of the plaintiffs died. So, as relevant ordinances here prohibit camping in public on sidewalks and so forth, and defining campsite as basically a place where you have bedding, sleeping bag, that kind of stuff, but also extending that definition to include sleeping in your car.
Will: Yeah.
Dan: So, basically, if you are someone who is unhoused and you are in public and you are going to put a blanket on public property, that is going to turn it into a campsite, you can’t do that, if you’re going to try to sleep in your car. That’s also going to be camping, and you can’t do that.
Will: Okay. So, yeah, as you said originally, I think the outcome of this case was maybe not so surprising from when the court granted it. The 9th Circuit is using the Eighth Amendment to stop a city from attacking the homelessness problem in the way it chooses to. It just seems on its face like that's heading for reverse.
Dan: Yeah. Relying on this isolated island of precedent that had not been visited in the years-- [crosstalk]
Will: Well, the two things I find interesting just about the opinion by Justice Gorsuch. So, one is the 9th Circuit has a line of cases about this. They're not that isolated in the 9th Circuit. They have a case from five years ago called Martin v. Boise, and there have been several other cases about it. It's become its own-- the doctrine has taken on a life of its own in the 9th Circuit. Justice Gorsuch notes that.
He begins the procedural history of this case with, “Five years ago, the 9th Circuit decided Martin v. Boise, and here's what was wrong with that case, which is not the case under review. Here are all these district cases that have applied it, and here's how it applied to San Francisco,” which I do think is true and useful context, but it's just not normally the way the court writes the opinion.
Before that, the opinion begins with just a broad discussion of the homelessness problem in the West, which is not normally how I think of a Gorsuch opinion beginning, usually like, “Well, our job here is just to apply the law and not to think about the policy. But we're going to begin by talking to you about housing throughout the West.” He's a westerner. Again, that is, I assume, part of why the court took this case. But I thought it was just a funny, almost a more Kennedy-esque way to begin an opinion.
Dan: I don't know. He tries to play at the heartstrings sometimes, on the far end of the Trail of Tears was a promise.
Will: Fair enough. Fair enough.
Dan: Right?
Will: Fair enough.
Dan: I thought that was admirable in the sense of-- [crosstalk]
Will: I'm not against it or saying it's ineffective. It just seemed like a different genre.
Dan: Didn't seem Gorsuchy--
Will: No. Maybe it is Gorsuchy. Maybe it's not a genre that a lot of the majority opinions we've been reading lately go for. Maybe it's because this case also has the obvious setup of the mean, heartless formalists who want to homeless people to die versus the good-hearted liberal dissenters, like, Justice Sotomayor, who believe in the people. Maybe the court is trying really hard not to just let them have that high ground.
Dan: Yeah. It seemed to be written in slightly less confrontational. Sometimes the Gorsuch opinions can be aggressive, and I thought this one was written less that way. Even slipped in, he talked about people experiencing homelessness in some places, and he seemed to be watching his language a little bit.
Will: Okay. So, what do we think happens to the result in a Robinson case? Like, if a state goes back to criminalizing drug addiction or alcoholism, do we think the court would still strike that down and just not use the criminal unusual punishment clause? Do you think they would--?
Dan: Yeah. So, that's a really interesting question, which is, can you--? Just before getting to the point, I would say that the majority opinion here seems to suggest that at least the Eighth Amendment was not the right place to find a principle like that, that Eighth Amendment is really only supposed to kick in after conviction. It's like, is this the kind of punishment that the state is allowed to impose on you after conviction for a crime?
Will: Seem to hint that maybe the due process clause would be a possible argument?
Dan: Yeah. It indicates some receptiveness to that argument, because he's talking about the way in which the Robinson case was actually litigated, kind of interesting. This is a move that you sometimes see Justices make when they're trying to paint a prior precedent is like really wacky, usually a Warren court case, really out, where the court was out over its skis and talks about the way the case was briefed. I guess the briefing, Eighth Amendment played a very, very small role in the briefing. It was primarily briefed as a due process case. And he says, “Well, that framing may have made some sense.” He says, “We look at the settled usage under due process, and historically in England, typically, crimes have required proof of some act or actus reus undertaken with some measure of volition, a mens rea.” So, it doesn’t clearly say that that would win.
Just interesting side note. It doesn’t get a citation here, but there's a really interesting amicus brief by a friend of mine who's a professor at Pepperdine, Joel Johnson, and by Peter Low, Professor at the University of Virginia, drawing on some of their jointly authored scholarship, making this argument that the Robinson principle should be grounded not in the Eighth Amendment, but in the due process clause. It looks like some of that argumentation, court might have been paying attention to it even if they didn't dole up-- [crosstalk]
Will: And just to check that, that would that be substantive due process, I guess? It's not procedural.
Dan: I think so. Because it's about like the actual definition of the crime. So, they cannot--
Will: The kind of substantive due process that we still like?
Dan: Yeah, I guess so. You could try to frame it procedurally. You could say, “Well, historically, the government was not allowed to punish you for a crime without going through the process of proving that you had engaged in wrongful conduct.”
Will: Yeah. I think my civil procedure, Professor Judith Resnik, like to make this point is that, like, “If you had only procedural due process, like the elements must be strictly proven to a jury. You can't dispense with that.” Then what do you do if the state comes back and says, “All right, our crimes have no elements anymore. You're just guilty. We'll prove the elements, there are no elements.” [chuckles] And everything is principled discretion. Obviously, you can't do that. That's obviously, at a minimum, an end run around procedural due process. But then it suggests to have procedural to process, you need to have at least some backstop for what the elements are. Maybe that's wrongfulness. Maybe that's having an actus reus, that's something.
I wonder about this. So, Robinson, I'm noticing, is 1962. And at the time, the court had not yet gotten back into substantive due process. Substantive due process was the Lochner era doctrine that all good liberals thought was bad, because it had been used to stop health and safety regulations and minimum wage regulations and the like. Even Griswold, the contraception case comes in 1965, and even it is afraid to commit to any particular clause in part because substantive due process is still seen as bad. It's not until the next two years, eventually culminating in a Roe, that the court commits to due process. I assume somebody's done the Justice papers in this, but I bet at the time, the Eighth Amendment seemed like the more restrained place to ground this doctrine, because it was not reopening the pandora's box of due process.
Dan: Yeah. At least at first glance, maybe it seems more appropriate because it's about criminal punishment and so forth. But you do end up with this mismatch problem.
Will: That's very interesting.
Dan: This tees up a much broader debate about the Eighth Amendment that is not really at stake in this case. But as to does the Eighth Amendment only prohibit the specific punishments that were considered that the founding generation would have thought had fallen out of favor and were impermissible, or does it allow for some evolving standards there? Like, are there punishments that would have been in reasonably wide use in 1791, but which today we would see as pretty horrifying, which could those be said to violate the Eighth Amendment?
Will: It's like John Stinneford, maybe the leading originalist account of the Eighth Amendment, argues, “Yes, that cruel is a, whatever, a fixed judgment, but unusual incorporates into a ratchet.” So, you can have cruel punishments as long as we've had them for a long time, but if cruel punishments fall out of use, then you can't bring them back.
Justice Thomas’s concurrence, I guess, also has a new Eighth Amendment angle, I hadn't paid attention to at all. He says, “But look, in this case, a lot of the enforcement of this statute is through civil fines and civil park exclusion orders, as well as criminal trespass charges.” He says, “At a minimum, the Eighth Amendment is categorically inapplicable, or at least the Eighth Amendment criminal neutral punishments clause is categorically inapplicable to civil fines.”
Dan: Here, the way the court resolves it, the majority doesn't have to resolve that question. There is this argument that, “Well, these things are ultimately backed by criminal fines,-
Will: Right. They’ll pay them.
Dan: -because if you violate them repeatedly and so forth.”
Will: But all laws are ultimately backed by…
Dan: Yes, that's definitely true. I think that maybe if we think that that's real problem, does that push us to the due process angle?
Will: Maybe it's just another-- Yeah. Eighth Amendment also refers to excessive fines. I guess if you could say fine. It's not a cruel and unusual fine. It's just an excessive fine in light of its lack of cruelty. But that was an interesting additional angle here. Can I ask one other technical question about how these cases work? Why is this done at the city level? The defendant is the city of Grants Pass. The idea is the city of Grants Pass can't stop somebody from sleeping in their car if the city of Grants pass is not provided another place that they can lawfully sleep. But the Eighth Amendment, and I guess incorporated through the 14th Amendment, is ultimately about the state. So, why isn't it a state level obligation? Why can't the city of Grants Pass say, “Look, Oregon has an obligation to make sure you have somewhere to sleep. But as long as there are beds up the road in Eugene or Klamath Falls or wherever, then the state is not cruelly and unusually punishing you just because you're here?
Maybe this is not a realistic case for it, but I feel like in San Francisco, San Francisco might want to say, “Look, you cannot sleep in the city of San Francisco. There is no room for you. But Bakersfield, we will put you on a bus and send you there.” Why can they not do that?
Dan: Is it obvious that they can't? Obviously, it doesn't matter at this point.
Will: Right.
Dan: It seems there had been a lot of uncertainty in the wake of these 9th Circuit cases of exactly what the obligations were on governments. [crosstalk]
Will: The majority has some other examples of this where they said, “Look, the city tried to create a pretty nice homeless encampment out near the airport.” But then the court said, “No, the constitution required beds have to be indoors,” even though, of course, the people were camping out of doors and so on. There was all this litigation in Arizona about various sites as well. So, yeah, this is really a question I should be asking the 9th Circuit, but it's just funny to think about how it works. So, my memory is the SG was also in this case, in support of neither party. So, they weren't willing to endorse the 9th Circuit approach, but they wanted to do it on an individualized basis rather than a classified basis? So, they wanted to say like, “As to any individual, you can't enforce the law against them unless you can prove that individual had another place to go.” But this is a class action.
The plaintiffs can't bring this in on a class wide basis, because I think what would happen in some places is the plaintiffs would say, “Look, there are 30,000 homeless people and only 20,000 beds, and therefore, all of us can sleep wherever we want.” And the SG would like to do it on a case-by-case basis. But I guess that under the court's view, since there's no basis for any of this, it just all falls away, right?
Dan: Yeah. Do you think it was odd that the SG got involved in that case? Looking back at the SG's brief, here are the bases for the SGs brief always starts with the interests of the United States. They give a bunch of possible bases. DOJ is authorized to bring suits to protect the rights of individuals to be free from unconstitutional policing. The US has an interest in working with state and local governments to address homelessness, has an interest in ensuring the nation's cities can respond appropriately and humanely to aid public health and safety.
Then as the owner of public buildings and land, the United States has an interest in ensuring that public property is protected, accessible and maintained in a manner suitable for its intended uses. And then they throw in a catch-all interest in the proper interpretation application of constitutional provisions governing criminal prosecutions and punishment. What do you think of that? Is that just the democratic administration coming in to--?
Will: Well, it's complicated, because there are national parks where people sleep and where they enforce. There's even a Supreme Court case about how they can ban you from sleeping on the National Mall. So, at one level, they obviously have an interest in enforcing land use policies that provide at least some limits on people's ability to just camp and sleep at will.
I think the Gorsuch opinion even notes some policy about camping in McPherson Park in Washington, D.C. and stuff. So, it might be embarrassing totally sit it out. At the same time, this case had a lot of political tension to it, both on the advocacy side for the unhoused but then you had tons of states and pretty prominently, Gavin Newsom coming in on the Grants Pass side because of what they've been trying to do in California. So, I assume there was just a lot of pressure at the SG's office to do something too.
Dan: Yeah.
Will: Then the fact that they try to do something that's in between, they can tell Gavin Newsom is consistent with what he wants, but also tell the groups that it's on their side. So, it does seem a little political, but not totally obvious that they'd be in it. But it doesn't seem totally out of…totally unprincipled.
Dan: Yeah.
Will: It's not obvious that the United States has more of an interest in this case than they had in a case like Trump v. Anderson, where they were nowhere to be found.
[laughter]
Will: That may because in this case, they had something they felt like they could say. And in that case, they had nothing they wanted to say.
Dan: Okay. So, anything else to say about the majority or the Thomas concurrence?
Will: Ah, no. What do you think of the dissent?
Dan: So, another full-throated dissent from Justice Sotomayor. By the way, I realized that there was something I had forgotten to say about the Jarkesy dissent.
Will: Okay.
Dan: She says at the beginning of that dissent, “Because the court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.”
Will: Ah, I remember that.
Dan: Is that designed to really needle the Chief Justice?
Will: Do you think it all succeeds in needling the Chief Justice?
Dan: Not really. But don't you think that--? It's hard to not be thinking about that, right?
Will: Yeah, it clearly is. Look, you can write that in every Chief dissent. You're like, “He's a bad umpire.” But yes.
Dan: Friend of the show, famed Supreme Court litigator, Kannon Shanmugam, wrote in to say, among other things, that he was surprised I knew who the really bad umpire, Ángel Hernández was. Not really clear why. Just because he assumed that people who podcast about the court are such big nerds, they don't know anything about anything, like sports?
Will: I assume that's the implication, but--
Dan: Yeah. You didn't know.
Will: I'd heard of him.
Dan: You read the news reports?
Will: I feel like I knew it as a trivia answer or something-- Yeah, I don't know.
Dan: You probably do pretty well in trivia. You a pub trivia guy?
Will: In college, I was a college bowl guy, like the buzzers and--
Dan: Quiz bowling, yeah, I did that in high school as well.
Will: Yeah. That kind of thing. I don't really like pubs.
Dan: Really?
Will: I do.
Dan: You like drinking.
Will: Yeah, but pubs are noisy. I prefer to drink alone or with friends.
Dan: Okay. Well, I don't drink alone. Okay. But back to the--
Will: You can come over and-- [crosstalk]
Dan: Okay. You've had my cocktails.
Will: That's true. I owe you.
Dan: You've seen my liquor cabinet.
Will: I owe you mine.
Dan: Yeah. Okay. So, back to the dissent we were actually talking about. As I set up a few minutes ago, this one is now going to be pushing really in the opposite direction of where Justice Sotomayor wanted to go last time. In Jarkesy, the court is striking down something is unconstitutional. She's criticizing them, saying, “This is judicial aggrandizement, here the court is refusing to declare something unconstitutional.” And she is lamenting the court's unwillingness to do so. Sorry, do you have more to say about that?
Will: In her defense, in both cases, what she's saying is there’s a precedent from 40 years ago that the Supreme Court doesn’t like and is thus implausibly distinguishing/kicking to the curb. I liked the law of the Burger court more than the law of the Roberts court. That might be her real consistent theme is, like, they used to do it better.
Dan: Her closing, she says, “This court has a role to play in faithfully enforcing the constitution to prohibit punishing the very existence of those without shelter. I remain hopeful that someday in the near future, this court will play its role in safeguarding constitutional liberties for the most vulnerable among us. Because the court today abdicates that role, I respectfully dissent. That kind of hopeful in the near future bid is just interesting.”
Will: What would be the basis for that hope?
Dan: Like, personnel changes-- [crosstalk]
Will: Personnel changes that would lead to-- There are some five, four cases where you can imagine a one Justice change that's likely to change.
Dan: Near future. Not like someday. She's saying like soon.
Will: Yeah. Well, I thought it was funny. Guess it has to be court packing. The Justice who's the most likely to step down from the court would be her. I guess she probably knows whether on Monday she's going to announce her retirement or not. I think we all assume not. Even if she did--
Dan: Yeah. Although the speculation has significantly increased in the wake of Biden's debate performance, which has I think everyone knows, was not well received.
Will: Right. Under theory that Biden's not going to win.
Dan: It's now or never win.
Will: Yes, four years from now. I guess I also saw the version of, and he could really use something else to take the attention off the race.
Dan: Yeah. It's actually, interestingly, for all the same reasons that I imagine Biden-- For Biden to get off the ticket, he would have to step down. I'm not sure that there's a mechanism that exists that could get him off the ticket without his choice. For all the same reasons why he's unlikely to do that are the same reasons why Justice Sotomayor is unlikely to voluntarily step down. People don't like being told that like, “Your turn is over. You're going to die soon. Go away.”
Will: What about the 25th Amendment? So, if Kamala Harris invoked the 25th Amendment to take over, I guess that does not replace him on the ticket. He would still be the candidate.
Dan: Yeah.
Will: Okay.
Dan: He would be re-elected potentially, I guess, with her. She hasn't been formally nominated as the VP candidate.
Will: Maybe a little bit less likely to if she just conducted a coup or not a coup.
Dan: Yeah.
Will: I take no position on whether the 25th Amendment would be properly invoked in the current situation. I don't know.
Dan: Yeah.
Will: I guess Justice Sotomayor might mean under some other doctrine. Some people in the majority don't want to close the door to at least Robinson being right on some other basis.
Dan: Or, don't feel it necessary to close the door.
Will: Well, right. But look, given this court, if six of them had all agreed the door should be shut, they don't necessarily feel any shame by just kicking the door shut.
Dan: Well, yeah. But if you don't have to, why--
Will: I just say--
Dan: Why go through the trouble?
Will: Sometimes the court says things-- [crosstalk]
Dan: [crosstalk] -saying like, “Actually you can criminalize heroin addiction.”
Will: Sometimes the court says things it doesn't have to say just because they believe it. So, the best case for her optimism would be maybe in a narrower case, two Justices from the majority or one Justice from the majority, plus one hypothetical new Justice that's replaced. I don't know, the impeached Justice Alito can--
Dan: He's probably not the first candidate for impeachment-
Will: Thomas will be first?
Dan: -in a world where impeachment is possible. Yeah, I would think Justice Thomas-
Will: Oh, man.
Dan: -would be the most likely to be impeached.
Will: Really?
Dan: There's just been a steadier string of scandals, right?
Will: We're not talking about that. I'm sorry, I opened the door, I regret it. Yeah. Okay. I don't really understand the basis for this hope, but I guess hope springs eternal.
Dan: So, she also notes that these questions about due process are left open.
Will: Yeah.
Dan: She said by the majority. So, that's still on the table. She also notes that the possibility that some vagrancy laws can be unconstitutionally vague. There's a much longer tradition, a much longer line of precedent striking down laws like that as unconstitutionally vague. So, depending on the way in which the law is worded, it could still create a constitutional problem. I think what she's trying to do there is just say, that the fact that the court is saying that this Eighth Amendment thing doesn't work doesn't mean that all laws prohibiting homeless people from camping or whatever are automatically constitutional along all dimensions.
Will: I think there's also just something interesting this reveals about the structure of constitutional law. Our constitution is mostly a charter of negative rights, so to speak, things the government can't do to you, whereas many other countries and even some states have more of a charter of positive rights. You have a right to healthcare and housing and the like. Part of what's happened here is that people who really want positive rights have tried to get them by litigating as a negative rights case. What everybody really wants is to go to the City of Grants Pass and say, “You are required to commit more funding to beds and homeless shelters.” But nobody thinks you can do that. So, trying to back into it by saying, “Well, you can't do this in the hopes that then you'll figure out you should do that instead.”
Dan: Yeah.
Will: That's the way you'd litigate it. But it's just like the whole thing emerges in essence because of that deeper feature of how our constitutional rights work. I guess what I'd really love, if we're going to do this kind of thing, do you think you could bring the same kind of cases, a zoning case? In the 9th Circuit, especially in California, part of the homelessness problem is that it’s very hard to build housing, in part, because of lots of restrictive land use policies. So, do you think the same judges would be open to a taking style case that all zoning regulations, whatever, unreasonably take property until the city has enough housing?
Dan: Could we get my friends at the Institute for Justice on that?
Will: Yeah. I think that's what I have in mind is like, is there a libertarian liberal fusion that could say San Francisco: There are a lot of people who want to build housing in San Francisco, even luxury housing, which would then free up housing for other people, which would then free up housing for other people. Similarly, I will say, the part of this law I find the most offensive is the car part. I don't know. The fact that you can't sleep in your car does offend me. I understand why cities don't want public parking lots just full of smelly people sleeping in their cars. But it's your car, Dan.
Dan: Yeah. More generally, these are the kinds of things it seems like, these laws are efforts by one municipality just to shift externalities onto others. It's like, we don't want to deal with this, let's make it hard for these folks to be here, and hopefully they'll move on. It seems like, these kind of problems should be solved collectively in a way that doesn't involve this race to the bottom.
Will: In some cities, like so in Chicago, we have a large, unhoused population and we have a lot of public encampments. But there's clearly been a collective effort, I assume, by the city and coordination with others to agree about where those should be. That tends to be in relatively large areas under underpasses that are relatively sheltered and often relatively near to at least some social services. That is superior at a public policy level than some other options. Obviously, by far not the best or even in the top, not a good situation.
Dan: A couple of things to note, which is that Oregon as a state is actually trying to do stuff along these lines. So, one, in 2019, Oregon became the first state to basically ban single family zoning. So, basically, said you can build duplexes, triplexes, fourplexes. And then subsequently, there's been a law passed. I don't totally understand how it works, but a law passed that restricts the ability of municipalities to do some of the stuff that Grants Pass was trying to do here-
Will: I see that.
Dan: -that limits their authority to pass ordinances like this. But the court in this case doesn't resolve how that would have applied to the law here.
Will: Glad to hear it.
Dan: Last thing is, were you at all surprised that it ended up as a purely partisan divide on the court? Because just thinking about this case, I had the impression of the case that if this case had come up 15 years ago roughly, not quite, when you and I were clerking, it just had the feel to me of a case where it would have been 7-2 or 8-1. Like it would have been a Stevens dissent, but everyone else would be like, “Yeah--" Even the liberals would be like, “Yeah, this is really unfortunate, but we can't come up with a constitutional rule that works here.”
Will: Yeah. I certainly had the reaction that if Justice Kennedy were on the court, he would have decided this the same way. This is not one of these cases where the law has moved to the right because of the new appointments. I hadn't really thought through this. I guess it's right that I envision, back in those days, if Justice Kennedy had written in upholding this, no, there would not have been a four Justice dissent from Stevens, Ginsburg, Breyer-- [crosstalk]
Dan: It just doesn't seem plausible to me. Maybe I'm naive, but it just seems like this case, for whatever reason, caught the partisan divide bug. I just don't know whether it would have in a slightly less polarized environment.
Will: I guess that might be in the Kennedy regime, where everybody felt like they had a chance at winning some of the cases, and so you didn't just opt out of the jurisprudence. It may be that's less true, although we haven't seen that many of these 6-3 divides until today. Maybe that's because they saved them until the end, but a lot of the cases have been a little bit more.
Dan: Yeah, we got Jarkesy, we got Chevron [crosstalk] got this.
Will: That’s true.
Dan: And then we've got--
Will: More coming, you're right.
Dan: I'd be surprised if at least one of the three cases we're waiting on isn't divided that way.
Will: Yeah. That's fair. And then I was thinking, this dissent certainly feels like it was written for the public, for the ages, something like that.
Dan: Yeah.
Will: This is a different audience for the dissent in some ways. Again, that might just be consistent with where the Justice Sotomayor, Kagan and Jackson find themselves in the court today. They don't see any need to go along with this.
Dan: Yeah. So, thanks for listening. We will be giving you more episodes about the end of term cases, but it may take us a little bit. So, bear with us. In the meantime, please rate and review the podcast on the Apple Podcast app or wherever else you get your podcasts. Visit our website at dividedargument.com, where we post transcripts of the episodes fairly shortly, fairly soon after they come out. store.dividedargument.com for merchandise. Send us an email at pod@dividedargument.com or leave us a voicemail, 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. We will be, as Dan said, returning hopefully at least one special episode next week, and then coming back to give our slightly cooler takes over the course of the summer, and probably engaging more with some emails and feedbacks as that happens as well.
Dan: If there is, in fact a long delay between this and our next episode, it will be, because during my travels in Oregon, I have been arrested under a newly blessed city ordinance, criminalizing whatever it is I'm trying to do there.
Will: Oh, but I hope that the court will recognize your rights under the due process clause.
Dan: We'll find out.
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