We didn't get the tariffs decision this week, but we discuss two of the opinions we did get -- Bost v. Illinois Board of Elections, a decision about standing and election law, and Case v. Montana, a rare Fourth Amendment case -- in a remarkably efficient episode (after a brief detour into Grok's jurisprudence and the announcement of a major gift to the Constitutional Law Institute).
We didn't get the tariffs decision this week, but we discuss two of the opinions we did get -- Bost v. Illinois Board of Elections, a decision about standing and election law, and Case v. Montana, a rare Fourth Amendment case -- in a remarkably efficient episode (after a brief detour into Grok's jurisprudence and the announcement of a major gift to the Constitutional Law Institute).
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude. So, Dan, my colleagues asked me yesterday, when are we going to get the tariffs decision? And I said, tomorrow.
Dan: Were you just doing that just to be kind of contrarian and everyone else-- I know everybody wants that, but my view is always they're going to disappoint you, and it's going to take longer than you want it to.
Will: Yeah, but then you have to control for that. I think somebody said, “When do you think we're going to tariff decision?” So, I said “Tomorrow,” because that was my best guess.
Dan: Really? Do you really think that?
Will: Well, I don't think it anymore.
[laughter]
Dan: Well, why did you think that? Just because you think it's incredibly urgent and you trust their ability to get it out relatively quickly. The thing is it's going to be an opinion where more than half of them are going to write, don't you think?
Will: [laughs] Well, the longer it takes, the more I think that. I thought when they granted it, scheduled it for relatively rapid argument and from the nature of the arguments that they were going to want to get it decided quickly. I understand I was with the people who thought it might well have been the decision last Friday when we got the one, five, four second and successive fed juror thing that we should do at some point.
So, then I thought, okay, maybe they were going to get it ready then. But now, Justice Kagan is tweaking her concurrence or whatever. But I was wrong. I do think, of course, the speed at which they get it out depends a little bit on what it's going to say and how people are going to write. And so, of course, I might have had a guess ex ante about what it was going to say and who was going to write. But as it takes longer, then I have to also update my guesses of what it's going to say and I'm going to--
Dan: And your guess is what? Say no to tariffs? Narrow opinion, Chief Justice?
Will: Yeah, my post-argument guess was no to tariffs, narrow opinion by the Chief holding a complicated coalition together with a concurrence by Gorsuch and a dissent. As it takes longer, I think the odds that the administration is winning go up and the odds that you get a lot of different opinions go up. The odds of a four-one-four with Justice Barrett writing only about Algonquin and licensing fees or whatever go way up.
Dan: Well, I predicted on social media that we would get a few random cases. I named a couple, none of which were correct, but we did get instead of tariffs case, we got a few smaller-ball cases. So, as I said, now quoting myself yet again on X, that I was using your phrase "directionally correct."
Will: [chuckles] Fair enough.
Dan: But you told me at 09:55 Eastern that you thought it was going to be tariff.
Will: Since I thought that yesterday morning, we had no new information between yesterday morning [laughs] and 09:55 today. I still have that.
Dan: Well, I didn't ask you until 09:50 this morning, so it's not your fault. So, I said, “Okay, let's have some fun with that.” I threw some money down on SCHB, the Schwab Broad Market ETF, which is like a double gamble, a gamble that it was coming down in five minutes and a gamble that it would strike down the tariffs, which-
Will: Is it obvious?
Dan: -also gamble that the market would respond positively to it.
Will: It's a triple gamble.
Dan: It's a triple gamble.
Will: Well, it's not at all obvious that the decision is going to cause the market to go up rather than down, right?
Dan Yeah. It depends a lot on what the market is currently pricing in.
Will: Right. And what they say about the refund process and the chaos. If you thought that a ruling against the administration will cause the Supreme Court to declare war on the Supreme Court building and arrest Chief Justice Roberts, you might--
Dan: That's true. That's true. I was not betting my retirement on this, but I thought it would be fine and I would either be able to thank you for making me some money or be enraged with you for losing me money. But neither of those things is true. I don't even know if I-- I think I've maybe lost $5 or something.
Will: So, speaking of thank yous, I want to say a thank you to an alum of the law school, Deborah Cafaro, who yesterday announced a million-dollar gift to the Constitutional Law Institute, which, as listeners may know, supports this podcast and all of our endeavors.
Dan: US dollars?
Will: US dollars.
Dan: That's a lot of money. It's a big gift.
Will: Now, it's not going to mean that you or I are getting rich off of doing this, but it may hopefully let us--
Dan: Can we build a Divided Argument headquarters like a third location? We could put it in between St. Louis and Chicago?
Will: And then, we would have to go there to record?
Dan: Well, when we needed to, like, once in a while.
Will: [chuckles] What's between St. Louis and Chicago? Is that where you get to Ephraim or Effingham or something? Carbondale?
Dan: Where is Carbondale-Champaign?
Will: Yeah.
Dan: I don’t know. I confess I don't have a great sense of geography for the surrounding regions. I've driven to Chicago several times, but have not lingered. I did go to Peoria recently to pick up a car. So, maybe Peoria is on the way.
Will: I once ate at the Panera in Peoria.
Dan: Panera Bread?
Will: Yeah.
Dan: Do you know what the other name of Panera Bread is?
Will: No.
Dan: St. Louis Bread Company, which is until recently, what it was called in St. Louis. But I think that they determined, perhaps correctly, that St. Louis Bread Company was not going to be--
Will: Is St. Louis known for its bread?
Dan: It's known for that bread company's-- [crosstalk]
Will: It's like, the Chicago Shrimp Company. I don't know. Is that a thing you want to buy?
Dan: I don't know. Is there lake shrimp?
Will: [laughs] I'm not sure.
Dan: Is that the title, by the way?
Will: [laughs] Maybe.
Dan: Lake Shrimp? We do have at least a couple good bakeries here. Union Loafers, excellent bread. We bring that to friends in other cities. Perhaps, I will remember to bring you some next time we go to Chicago, and we can debate whether-
Will: Take me there-- [crosstalk]
Dan: -St. Louis spring.
Will: -love the live show.
Dan: Yeah. Although you're only coming for like two hours. But it is also a great lunch venue.
Will: All right.
Dan: Okay. So, can I do other aimless, pointless chit-chat?
Will: Well, you don't have long, but yes.
Dan: Okay. Okay. The other thing I was going to note is that on X, formerly Twitter, the thing that has been popular recently is using a Grok, which is Elon Musk's AI to do image generation. This has been used for somewhat nefarious purposes. Lots of putting people in revealing clothing and stuff like that. But another thing people are doing is testing Grok's intuitions and personal views by putting a photo of Biden and Trump and saying, "Remove the bad president" and seeing who Grok removes.
Will: Yeah.
Dan: And so, I tried this with a picture of the current Supreme Court, and I said, "Remove the Justice who is most often wrong, put a crown on the Justice who is most often correct." What I got in return was a message that I don't pay for that [chuckles] feature, so I can't do it. But a couple folks did it for me who do pay for it. Results a little mixed. So, one version of it I got. It removed Justice Kagan and then replaced Justice Kagan with a different Justice, a black woman who looks like Justice Jackson, but not really. It seems like a fictional Justice and gave her a crown. [Will chuckles] So, I don't know what to make of Grok's judicial philosophy based on that.
But then, I got another one. John Elwood, the great John Elwood of Relist Watch tried this and he got [chuckles] multiple versions. So, one version removed Justice Gorsuch and put the crown on Justice Jackson. The other version removed the Chief and put a crown on Justice Sotomayor. So, I thought Grok was going to be based, but Grok is maybe a lib on judicial methodology.
Will: Hmm. Okay, Elon Musk, if you're listening--
Dan: Yeah, he's going to tweak--
Will: He’s going to fix it.
Dan: Yeah, he's going to tweak the algorithm. Although I don't know if he's weighed in much on judicial methodology outside of the context of Delaware corporate law, where he clearly has very strong views, because what the Delaware courts do affects whether he gets like a trillion dollars or not.
Will: Yeah.
Dan: Okay, so, that was my idle chit-chat. Let's get to substance. Limited time. I've got a faculty meeting.
Will: Okay.
Dan: We're going to go briskly, and we're going to talk first about one of the cases decided today that isn't the tariffs case. Bost v. Illinois State Board of Elections. This is one that's very much in the Baude wheelhouse, right, standing case?
Will: Standing election law in the state of Illinois, right?
Dan: Oh, yeah, I keep forgetting you were an election law scholar now. And teacher. Are you teaching-- [crosstalk]
Will: At least teacher. Whether I'm a scholar, we can debate. But I've taught the course.
Dan: Okay. And you're a standing. Would you describe yourself as a standing hawk?
Will: [sighs] Hawk or dove?
Dan: You're not a dove. You're not a standing dove.
Will: Well, I think TransUnion is wrongly decided.
Dan: Okay. Yeah, me too. So, maybe you're a standing--
Will: I'm an eagle. I'm an owl. I'm in the middle. I'm correct. [chuckles]
Dan: I like owl. But those are both birds of prey, so they seem more hawk-like-- Maybe like a cardinal.
Will: An own is a bird of prey, but is smart and wise and discerning. So, I think I'm a smart hawk.
Dan: I do like owls. Owls are cool.
Will: Okay.
Dan: Okay. So, tell us what this case is about and then we can get the Baudean wisdom.
Will: So, Mike Bost is a congressman in Illinois, a Republican, which makes him an endangered species even more than the eagle. He thinks that it is illegal that the state of Illinois counts ballots received after Election Day. This is recall, something that the Fifth Circuit, in an opinion by Andy Oldham has said is illegal, I think. There's either a cert petition pending or maybe even granted on the merits, I forget. But he wants to complain that they are counting ballots received after Election Day and they should stop, not do that, and only count ballots received before Election Day.
Dan: And this case will not resolve that question.
Will: Right. He sued in the Seventh Circuit. And in the Seventh Circuit, they said he has no standing. And the Supreme Court today disagreed and says he does have standing. So, maybe eventually someday we'll find out if he's right.
Dan: This is to be clear, it's not like he just lost an election, because they counted these votes. That's not it at all.
Will: Right. So, it's also a little confusing. Of course, election cases are always confusing for matters standing, like what election are we even talking about? I believe when the lawsuit was filed, he was making a claim about the upcoming 2022 election. There have since been elections in 2024. Now, we're talking about the election in 2026. We have a special--
Dan: Because he would clearly have no standing to challenge, or at least maybe not clear. Actually, no maybe that-- I take that back.
Will: You might have an intuition that the 2022 election and the 2024 election are over. The number of votes doesn’t matter. In any case, in election law, in federal court's doctrine generally and election law specifically, we have an exception to mootness doctrine for cases that are capable of repetition with respect to that client if he has a waiting review, for which the two classic examples are pregnancies and election cycles, where basically the time it takes to litigate a case well from the district court to the Supreme Court is sufficiently long that you couldn't necessarily get answer, and so we just kind of-- [crosstalk]
Now, by the way, in the new interim docket world, it's not going to make sense anymore. Now, obviously, you can litigate a case from the district court or the Supreme Court in a month and half, you try.
Dan: [chuckles] And get a very, very lengthy opinion from the court.
Will: Don't ask the National Guard. But anyway.
Dan: Even here, we're still long ways away from getting answer on the lawsuit, because we've now worked our way all the way up the judiciary just to get the answer on the standing question.
Will: But in stylized fact, the basic problem is he's an incumbent, he's one of the small number of Republicans who've been gerrymandered into a relatively safe Republican district in Illinois. So, he wins every time by 60% to 70% of the vote. And nobody thinks, including him, that these late candidate ballots are going to make him lose. You never know, but nobody's going to make him lose.
So, you can see how at one level, the Seventh Circuit said, "Well, look, what's it to you?" Just as the Seventh Circuit might say, "You don't have standing to go ask us to figure out the correct vote total in the 2022 election," which is way over. There's no reason to believe it matters to you in 2026 any more than it mattered to you in 2024 and 2022. That was their answer. “Not so,” says the Supreme Court.
Dan: Yes. So, he is going to have standing in this majority opinion. We have a gender split. I don't know if you noticed that one. Here, we have the male Justices in the majority, the Chief Justice and Alito, Thomas, Gorsuch, and Kavanaugh. Then we're going to have a concurrence in the judgment by Justice Barrett, joined by Justice Kagan, and then a dissent by Justice Jackson, joined by Justice Sotomayor.
Will: I didn't notice the gender of the Justices, Dan.
Dan: You don't see gender. You don't see characteristics. You just judge everyone as individuals.
Will: I'm an individualist.
Dan: [crosstalk] Yeah. Okay. So, as I read it, the majority opinion by the Chief is going to take a pretty broad approach to standing in cases like this. And in fact, that's why I said something and then took it back a second ago, because I think under this broad approach that we'll describe, it really opens the door to a lot of potential lawsuits by candidates like this.
Will: I agree. It's a relatively short opinion. The way the Court starts its analysis is it says, “Look, under Article III of the Constitution, the plaintiffs must have a personal stake in a case to have standing to sue. They must, in other words, be able to answer a basic question ‘What's it to you?’” quoting a classic Scalia article on standing the Court's quoted before, and they say, “Congressman Bost has an obvious answer. He is a candidate for office, and a candidate has a personal stake in the rules that govern the counting of votes in his election.” So, that sounds like a categorical rule at least that-
Dan: Yeah.
Will: -“A candidate has a personal stake in the rules that govern the counting of votes in his election.” Now, of course, there's a lot of election law. It's not just about the counting of votes. So, already, the election law listservs and such are asking, “What about gerrymandering? What about six years ago, seven years ago in Gill vs Whitford when the Court held that some voters didn't have standing to challenge a political gerrymander? Why didn't they have a personal stake in the rules that govern the counting of votes in their election?”
Maybe it's because candidates now have more rights than voters or maybe because gerrymandering is not exactly about counting the votes, but about putting them in buckets, I'm not sure. But it's a fairly broad rule, and it's a pretty sensible intuition that if it were otherwise, if you said only the candidate who might lose has standing, then there are two awkward things. One is the courts now have to take judicial notice of the fact that a lot of our elections are not competitive. [chuckles] Yeah, I know there's an election in a year and a half, but nobody thinks that this guy's going to throw it out, which is awkward.
And then worse, of course, things could change or the only way it would come close is if a month before the election, the Republican Party takes an unprecedented reputational hit or the candidate is caught on a hot mic [Dan chuckles] saying that Biden was once the president or something scandalous. [Dan chuckles] It's awkward to have to say, "Oh, [chuckles] now the election's closed, I guess we do have to litigate this." So, there's some attraction to a general rule that you just get the rules right.
Dan: Or, even litigate it X post.
Will: Well, right. So, then of course, we talked a couple episodes ago about the Purcell principle, the special election law rule that federal courts shouldn't enjoin state rules too close to the election.
Dan: On the eve.
Will: On the eve. The eve also known as sometime in the 12-month period preceding. [chuckles] And so, if you waited too long, then you'd get Purcelled out and then you're the question-- [crosstalk]
Dan: But if you wait even longer and the election happens and you lose, certainly if the candidate loses by the margin of the late-received votes-- I mean, Purcell is not in play at that point. They could go back and say, "I should be declared the winner,” right?
Will: Probably. So, there's a complicated body of remedial law about that, probably. But that can get complicated, too.
Dan: Okay.
Will: Bush v. Gore in part involved the court just saying, “It was time to stop counting the votes, because it's getting to be too close to Inauguration Day.”
Dan: But also, recognizing federal constitutional arguments in doing so, right?
Will: Yes. I'm just saying it's complicated. There is a case that I taught in election law where a year into the term of the mayor of Miami, the Florida courts decide that actually there was rampant absentee ballot fraud in that election, throw out one entire precinct's worth of votes, and decide that the other guy should have won, and oust the mayor from office, and put the other person in.
Dan: That's awkward.
Will: That's awkward. And happened the year before Bush v. Gore. It might have actually been the background of the Court's thinking about what would happen if you left this to the courts.
Dan: It was just in the state courts, though?
Will: Yes, in the state courts.
Dan: Did it go to the Supreme Court on cert or anything?
Will: I don't think anybody had invented the idea of a federal interest in stopping that stuff.
Dan: Okay.
Will: Yeah. So, it's just complicated. So, you can see why you want to get it delicately to begin with, that's all I want to say. So, in that sense, it's straightforward, right?
Dan: Okay.
Will: Now, two questions. No three questions. One is, why do four Justices not agree? One just related is, I like this opinion, but I'm surprised the other Justices in this opinion like this opinion. I'm a standing owl like you, but they are standing hawks other than Justice Thomas.
So, they think that even if a company maintains false credit reports about you in violation of federal law and you sue saying, you have an interest in having true information maintained about you that complies with federal law, they think you don't necessarily have standing until you can assert something else, like that the data has been communicated to third parties, a requirement not in the statute. So, I don't know why they suddenly have a more indulgent approach to standing here.
Dan: This does seem different, though, right?
Will: Why? So, I would say, here his interest is in making sure that the law is complied with in this process. Just like the failed plaintiffs in TransUnion had an interest in making sure the law was applied to their credit reports, and just like the failed plaintiffs in Lujan wanted the law to be applied to them.
Dan: The court says, “It's the interest in a fair election that there's some process value in that.” That is also a public thing. That does seem a little different than just saying, “It's unfortunate that TransUnion had in their file cabinet stuff about me that is not good.” If TransUnion had just been like putting on its website, Baude is at credit risk, that does seem different. You have an interest in not having people think of you as that even if you're not seeking credit, right?
Will: Right. Well, I think the fair process thing was part of the-- The complaint was TransUnion does not have a fair process for deciding whether or not I'm a terrorist and particularly aren't complying with various safeguards they have to comply with to decide that I'm a terrorist. And the Court said, "Well, so, what's it to you?" So, maybe fair process and public process is actually like a-- [crosstalk] Maybe if they count all the ballots wrongly, but do it in secret. I'm not sure how to--
Dan: Mm-hmm. Yeah.
Will: Or, in Lujan. The challengers are people who thought the EPA had not complied with various procedural requirements for rulemaking about endangered species. And they said, "Our interest is we have an interest in a fair lawful administrative process where the agency complies with the law."
And Justice Scalia said, "Well, you don't have an interest in just making sure the government complies with the law. You only have an interest in making sure the government complies with the law if you had plans to go see some tigers, and now the tigers are going to be dead because of the regs." It seems like Justice Scalia might have said the same thing to Congressman Bost, like, "Do you have an interest in making sure that they don't give your opponent a bunch of fraudulent ballots?” Like, not if the tiger's not going to die.
Dan: But you don't think this is different because of the way in which public perceptions matter?
Will: Maybe. So, we might say public perceptions about the legitimacy of elections or about the vote totals in elections matter in a way that public perceptions about whether agencies have complied with the law don't matter.
Dan: It's not just about compliance with law. He's saying you as a candidate have an interest in being treated fairly. Isn't this like the same idea where even if someone can't show they would have been admitted to the University of Texas but for affirmative action, they still have an interest in participating in a process in which there is no racial discrimination that goes on.
Will: So, the cynic might now say, "Ah, Professor Baude and Professor Epps, the real rule is that if you are a Republican complaining about pro-Democrat policies adopted by blue states or a white person complaining about affirmative action, you're standing. But if you are an environmental law group or a consumer complaining that big corporations or agencies did conservative things, you don't have standing." I don't believe that, but you might ask that.
Dan: Yeah. But I mean, do you think friend of the show and co-blogger on the Divided Argument blog, Richard Re has written a little bit about this realignment that's happening in standing, where at least by one account, when it looks like liberals are becoming standing hawks and conservatives are becoming more dovish.
Will: Yes. Good.
Dan: So, it sounds like maybe you don't buy that.
Will: No, that's definitely true.
Dan: Oh, you do buy. You do buy.
Will: So, he says--
Dan: You don't buy the criticism you just laid out a second ago, but maybe you do buy the realignment claim.
Will: The realignment seems to be going on that when we started teaching law not that long ago, if you were told there was a contested 5-4 standing case, you pretty much knew the conservatives were against standing, and somebody complicated in the middle. And even TransUnion is close to the last case where that's true.
Even in TransUnion, Justice Thomas is on the other side. But the point of the Richard Re article is like, “We really just don't have cases like that anymore. The contested cases are all where the liberals think there's no standing. The liberals have become hawks and the conservatives have become doves.” Seems descriptively true.
Dan: Unlike Biden v. Nebraska.
Will: Biden v. Nebraska. Yeah, there's a bunch of examples. So, the realignment's going on. The thing about the realignment is the Justices have been on the court for a while, so some of them have taken positions that are-- It's not irreconcilable, but they make you wonder.
Dan: Okay. Do you buy that the realignment is driven by who's in power and who's bringing cases, or you're not going to be willing to go that far?
Will: I'm not sure. I'm not sure about that. I guess, here's what I think is going on, is I think the opinion closes with this thing the court has said before, after the dinkus, "Courts sometimes make standing law more complicated than it needs to be." I think that is definitely one of the main messages of the court's standing cases.
We talked about this at the end of last term with the commonsense principle and Diamond Alternative Energy. I think standing law has gotten complicated, and all the Justices are maybe trying to apply a little more common sense to it. But the thing about applying common sense to a doctrinally intricate area of law with a lot of fact patterns, is that it's actually hard to just common-sense your way through it.
Dan: Yeah. Yeah.
Will: I think this is probably right. I would say the real inquiry is, who is the proper party? That's what Caleb Nelson has described as the original inquiry. I think it seems right that the proper party to challenge election rules are the candidates. But I would have said that about some other cases where the court didn't think there was standing.
Dan: Okay. So, broad majority holding that I think the takeaway is anytime a candidate alleges that the counting of votes has been in some way illegal, even if it didn't require them or doesn't require them to spend money, even if it's not going to make a difference to the result, they have standing.
That would go in two directions. It would go like after the fact, presumably, couldn't a candidate come in and say, "Yes, I won by 68%, but I would have won by more if you had not counted those ballots." Just as a matter of standing, put aside remedies, stuff like that, as a matter of standing, doesn't that have to be right? If you have standing in a fair process and you could say the process wasn't fair, you should be able to challenge the process that happened yesterday and the process that happened tomorrow, right?
Will: I think so. In the affirmative action cases, people can sue not just before they apply, but they can sue after they're rejected, and often they do.
Dan: And it's not a defense to standing to just say, “You had a bad SAT score.”
Will: I guess what I wonder, though, is in an affirmative action case, suppose you were admitted, and you said, "Yes, I was admitted, but I unfairly didn't have a fair process because of affirmative action, and so, I would like a correct evaluation of my application." I don't know of such a case. While logically your interest in a fair process would apply even if you prevailed, don't you think the court would say, "What are you complaining about? You got it--"
Dan: Yeah, that does seem problematic.
Will: Yeah.
Dan: So, is the answer then that just a lot of what's driving this. I'm not going to say this is bad necessarily, but a lot of what's driving this is the stuff that comes up in the later part of the opinion, which is pragmatic concerns that it's way better to decide these things up front and it's way better to not have courts making these tricky judgments about like, "Yeah, this candidate seems like a loser," or “These voters who are not as good about sending their ballots in on time are more likely to favor the other candidate.”
Will: Yeah, this is the thing that's so hard to tell. The thing about common sense is it's so hard to know what's driving it once you-- So, it could be that. It could be just an intuition that this is elections and that's special for various reasons, so we can indulge a-- This is what the dissent accuses the majority of is election law exceptionalism. It is in fact true that election law frequently gets treated in ways that other areas of law don't get treated, so it could be that. Again, it could just be the strong intuition that you are injured. There is also like people use sports game analogies in this case, right?
Dan: Yeah.
Will: If halfway through the game they suddenly award five points to their team, probably you don't want standing to challenge that to turn on how close the game is. But at the same time, once the game is over-- I think once the game is over, we still do sometimes let you correct it or whatever, but at some point, we'd say, “You're still complaining about a game three games ago that you lost by 10 and you care whether the score was 8 or 10.”
Dan: Yeah. And particularly in the playoffs, where it's really binary now.
Will: Now, of course, tons of people might actually have money on the line in the game.
[laughter]
Dan: That's true.
Will: Whether you lost by 8 or 10.
Dan: That's true.
Will: But I don't know.
Dan: The hypo that the Chief gives us is this 100-meter dash, which is, let's say it's supposed to be 100-meter dash and instead whoever is officiating this lets them go for 105 meters and that's where they draw the line. It says, “Whether a particular runner expects to finish strong or fall off the pace in the final five meters, all would be deprived of the chance to compete for the prize that the rules define. The fastest to run 105 meters has not won the 100-meter dash.”
Will: Yeah.
Dan: First of all, that doesn't seem obviously true, if someone is 10 seconds ahead of the second person at 100 meters and 105 meters. But it doesn't seem true once you do the analogy, because I don't think [chuckles] you would say the person who wins with the late counted votes, even if it made no difference, has not won the election. That's not right. The election is the race.
Will: Although you might. The person might complain. They might say, “Look, the whatever the Guinness Book of Sports Stats or whatever record we're setting, is going to put an asterisk by my thing because it was wrong. I won, but there's some way in which the history books or the cred or my reputation now has an asterisk that it shouldn't have.”
Dan: Okay.
Will: You might.
Dan: Yeah. Okay.
Will: So, can we talk about Justice Barrett?
Dan: Sure.
Will: Okay.
Dan: So, she's got a short concurrence in the judgment, joined by Justice Kagan. Five pages.
Will: Yes. So, she, I think, shares the dissent's view that the majority is doing some election law exceptionalism and that is bad. It's one of her points. She would rather take a straightforward path and just apply ordinary standing doctrine. And her view, unlike the dissent's, is that ordinary standing doctrine means that Bost wins.
Dan: Yeah. Because of possible pocketbook harms, right, spending money to make sure that the votes are counted properly and so forth.
Will: This is one of Bost points. It's what the 105-yard analogy is also good for, too, is at the start of the race, if they tell you that it's going to be 105 meters rather than 100 meters, you run differently, because you save your energy or whatever based on how long it is. And similarly, if you're told that there's an extra week de facto for people to send in ballots, you campaign a little differently and you certainly pay your staff two weeks later, because you've got to send people in to watch the counting or whatever. And so, that's obviously an injury. That's a concrete expenditure of money and social count.
Dan: And so, Bost says, “To avoid reasonably probable harms, his campaign has spent and will spend money, time, and resources to monitor and respond as needed to ballots received by state elections officials after the national Election Day.”
Will: If you tell me that we're done, no new ballots can be counted after Election Day, I can send everybody home. But if you tell me that there's an extra two weeks in which stuff's going to happen, then the team has got to be there and they've got to be on the payroll at a minimum.
So, I find this very intuitive, but I think there's a problem with it, too, which the majority talks about, which is the court has this case, Clapper, where they say, “Your decision to spend money to deal with a problem doesn't create standing if the problem didn't create standing.” There it was like, "Is the government illegally surveilling people talking to their clients?"
Some of the lawyers say, "Look, we spent extra money. We flew to other countries to have conversations IRL, because we were worried about monitoring." That's an injury. And the court said, "Well, look, since we already decided in part one of the opinion that you didn't have standing to challenge the possibility of monitoring, the fact that you decided to fly there doesn't matter." So, I think the authors of Clapper should say to Justice Barrett, "Look, the fact that he decided to waste his money telling his staff to monitor the process is his problem."
Dan: Are there two differences. One is that the court and Justice Barrett and Justice Kagan in particular have the intuition that maybe it's more reasonable to spend the money. And the other is that the problem that you don't see that here we know who the candidate is. These rules affect this candidate's election. Whereas in Clapper, the problem was anybody could be surveilled, and it's more generalized?
Will: Yeah. I think there is a problem that Clapper might not be right.
Dan: That has always been my intuition that it seems wrong.
Will: Justice Alito, the author of Clapper, recently had a dissent from denial of cert in a different case where he questioned Clapper.
Dan: [chuckles]
Will: It's one of the good examples in the [unintelligible 00:33:50] realignment article. Yeah, so, there are answers, but it's not a totally straightforward path and that's sort of-- I guess it's just, again, the problem of saying standing should be common sense sounds great to me. But then you say that on top of the pile of standing precedents we have, some of which do not meet my common sense, it's a little less helpful than instruction.
Dan: Yeah.
Will: So, I don't know. I admire the intuition instead of trying to not reinvent the wheel and decide this in a straightforward way. This might also be right were it not for some other precedents that people have to deal with.
Dan: Yeah. Okay. Justice Jackson has a dissent. A bit fiery. Lots of rhetoric about democracy and how-- Basically, I think, as I take the point, it's like by saying that candidates have an interest, they're disregarding the fact that it's really you and me as citizens who really have an interest in the outcome of democracy.
Will: Yeah. So, there is a valid point here. This case actually was originally filed as a voter's case with the main plaintiffs being Republican voters, arguing their votes are being illegally diluted by the fact that other people's votes were being wrongly counted. I think that dropped out of the case as the weaker standing theory than the candidate. It is the case that voters--
As we mentioned, voters who tried to argue that their districts had been illegally gerrymandered before Rucho, when that was a possibly cognizable claim, were told they didn't have standing, because the gerrymandering didn't sufficiently affect them. There's lots of case law about which voters can sue about what kinds of district drawing. That's not just like, "You have an interest in a fair process." So, if the law is-- I guess it's like if you think that the right analogy of an election is analogy to a 100-meter dash between two people, you are centering the candidates and omitting the people. No, that might just--
Dan: Yeah.
Will: This is another remedial problem, by the way, that it used to be a lot more of these cases are brought by the voters, and the remedy they used to seek was damages. So, you'd have people just say like, "I was denied my right to vote on the basis of my race. I want 200 bucks." That was a recognizable claim. We don't do that anymore, but yeah.
Dan: Okay. We wanted to talk about another case. Is this everything-
Will: Yes
Dan: -we wanted to say about this one?
Will: Just like the elections, given that there's a time limit, we've got to stop counting.
Dan: Yeah. We're on the eve of my faculty meeting. I think this is a good strategy, though, to schedule a recording with a fixed hard stop, so we don't just go on and on. And hopefully, we're going to get an episode that might even clock in under 60 minutes, the rare short episode. Okay, going quickly. Next case is also called Case, confusingly, Case v. Montana.
So, Case, the case, is a Fourth Amendment case, Fourth Amendment opinion, which is a increasingly rare slice of the court docket. I feel like a couple meaty Fourth Amendment cases a term. As Orin Kerr has noted repeatedly, the court has really slowed down on granting those. So, this is one. We haven't had one, a good one for a while. It is going to be a unanimous opinion by Justice Kagan. The issue in the case is basically the relevant standard of evidence for something called the emergency aid doctrine.
Emergency aid doctrine is an exception to the traditional warrant requirement. Typically, if government wants to go barge into your house without permission. The government needs a warrant supported by probable cause, and meeting the requirements of particularity, and authorized by a magistrate, and so forth. The emergency aid doctrine says, “Well, actually, if police have an objectively reasonable basis for believing that there's some emergency going on in the house and that they need to which the police need to provide assistance, they can go in without a warrant.”
That language I just quoted about an objectively reasonable basis comes from a decision from 20 years ago. I was like trying to think how long ago this case was from. And I was like, “I don't know, 10 years ago.” But it's actually 20-year-old decision. So very, very, very early Roberts Court decision that laid out that standard. So, basically, in that case, the police see people beating each other up inside a home and somebody's injured, they can go in. They don't need to go call up a magistrate and get a warrant and say like, "Can we go in, because there's people beating inside the house?”
Will: So, does the emergency need to be a crime? Like, beating people up is a crime?
Dan: No.
Will: Okay.
Dan: No. Someone could be dying, someone could be injured.
Will: Because dying is not a crime.
Dan: Yeah. This is tied up with something that the court had talked about at one point as community caretaking. And then, a lot of lower courts had taken that label and run with it and basically said there's this free-ranging exception, where if the police are doing something that isn't investigative, they can do a lot of things they wouldn't otherwise be able to do. The court in Caniglia v. Strom said, "No, no, no, that's not the right way to think about it. There's an emergency aid doctrine. There's not this big amorphous community caretaking doctrine, where police can just go inside people's houses for other reasons.”
So, we're not going to question the scope of that doctrine. That doctrine exists. That doctrine is neither going to be contracted nor expanded in this case, I think. And so, the only question is, what did that older case, Brigham City, mean when it said objectively reasonable basis for believing?
Will: Okay.
Dan: Like what threshold? What quantum of evidence? So, Fourth Amendment law uses different thresholds to conduct a Terry stop or a brief investigative stop of a person. Police need only reasonable suspicion. And then, to actually effectuate an arrest, they need probable cause. I can't tell you what those mean in numbers. Nobody knows. Nobody will tell us. But I can tell you that reasonable suspicion is something less than probable cause. And so, the question here is, which one of those is required?
Traditionally, you need probable cause for warrant requirements, like exigent circumstances. You're pursuing a felon, you normally would need a warrant to go in the felon's home. But if there's some reason, the person is fleeing or there's some other danger, destruction of evidence, as long as there is probable cause, the police don't need to go get the warrant. So, here, the choice was between those two options. The court says, “Well, it's neither. Those are the wrong way to think about it.” So, which quantum of proof is it?
Will: I guess it's just objectively reasonable basis for believing.
Dan: Okay. What does that mean?
Will: Also on the one hand, I find that really annoying. On the other hand, since nobody knows what reasonable suspicion or probable cause mean anyway. You people who teach criminal procedure seem to know what they mean, but whenever I ask you for things like numbers, you tell me that it's illegal to put a number on it.
Dan: No, I don't know what they mean. I know what they mean relatively to each other, and I can give you some sense of the cases.
Will: Right. So, I guess it's a little bit, like, if there's an opinion that says Murph and the question is, does Murph mean bleep or does Murph mean Google Hop? I'm like, “I don't know. [laughs] You made all this up.” Now, there's one part, though, I am a little confused about, the Constitution says probable cause. The Constitution says--
Dan: “You can't issue warrants-
Will: Without probable cause.
Dan: - without probable cause.”
Will: "No warrants shall issue but upon probable cause, and oath and affirmation." So, I had thought the idea was, if you need probable cause to get a warrant and you're relying on something and you would ordinarily need a warrant, but you have some exception, then you should also need probable cause of your exception.
Dan: Yeah. The exigency is taking the place of the warrant.
Will: Right. And if the exigency is taking place in the warrant, then you should need probable cause of the exigency, just like you need probable cause of the warrant.
Dan: Exactly.
Will: Nobody says that. I don't even think I remembered from reading Justice Kagan's opinion that the words probable cause were in the Constitution rather than things she made up, [Dan laughs] or the court made up. She even says like, “A probable cause is a term about criminal investigations.”
Dan: I don't think that's right.
Will: It's a term about warrants in the Constitution.
Dan: Yes. The whole Fourth Amendment was not seen as primarily a crim-pro. We didn't really have an idea of criminal procedure at the time of the founding. Instead, it was about civil investigations. Tax officials, customs officials, which is not necessarily criminal.
Will: Right.
Dan: So, I thought that was part of the opinion I found very baffling and also maybe obviously wrong to think of probable cause as just a criminal concept. I don't think that's right. I mean, there were a law of arrests for which the concept probable cause was important at the time of the founding, but I don't think it would have been thought of as exclusively criminal.
Will: The reason the probable cause would apply here is not because this involves an arrest is because this involves an entry into private property, which was just as much of a civil--
Dan: Yeah.
Will: Right. So, at the founding, I would have thought-- They try to come in, you're like, "Where's your warrant?” The Constitution says, “You have probable cause to get a warrant." And they go, "Oh, we didn't get a warrant." You're like, "Why?” “We don't need a warrant." And you're like, "What was your probable cause to show you don't need a warrant?" Maybe probable cause means the same thing as objectively reasonable basis for believing.
Dan: Yeah, that's the thing I'm confused about, because the exception is satisfied here. But I think that there was probable cause here, even under the heavier standard.
Will: Sure.
Dan: The specific facts were, this guy, Case, Case is the subject of the case, had called his ex-girlfriend and said he was going to kill himself and that he was writing a suicide note and she heard a pop on the phone. He also said stuff about like, "If the police come, I'm going to shoot them." And then, the police show up, they went outside, they look inside, they see an empty gun holster and a piece of paper that might be a suicide note. [Will laughs] I mean, there's a lot of stuff that I would feel like, “Yeah, I'm not certain.” But probable cause is not preponderance of the evidence. It's not more likely than not. It's something less than that.
I would say like, “I don't know, that seems like that's not just like a bare suspicion. That seems like something I would really want the police to be able to look at quite seriously further.” Now, I come away from this, I don't know, is objectively reasonable basis-- Like some way, it actually sounds like more than probable cause, depending on what it means. Probable cause doesn't mean necessarily that it is true and that you think it definitely is true.
Will: Right. Although objectively reasonable basis and reasonable suspicion also sound similar. I know because I took crim-pro that reasonable suspicion is less than probable cause. But in a way, if I didn't know, I was just trying to figure it out by the meanings of the words, you'd be like, "Is reasonable suspicion more or less than probable cause?" And I'd be like, "I don't know, it's just blur and from Google Hop to me."
Dan: [chuckles] So, if you had to pick based on this opinion, which one are we closer to assuming? [Will chuckles] And again, on the understanding that we don't totally know what they mean, but we know that one is--
Will: If I had to pick, I'd just say it's in the middle. It's like the weighted average of reasonable suspicion and probable cause, [Dan chuckles] but I'm just guessing.
Dan: Okay. So, opinion charmingly, frustratingly opaque on that, so I don't think we've made a lot of progress on what that means. And the cases that we have, like this one, I don't know, I think I feel pretty good about the evidence the government had. I think everybody else does. Like Brigham City, the police literally witness a fistfight and a guy spitting out blood. So, I guess we could have some harder questions that look more like reasonable suspicion and not like probable cause.
Will: Sure.
Dan: It would have been helpful to get a little bit more of an articulation, but I guess we will wait and maybe 20 more years, we'll see where exactly the line is. But two interesting things to talk about. One, briefly, there is a concurrence by Justice Sotomayor, who takes the view that part of the calculus should be whether there actually is somebody who might need help versus someone who's trying to do something, like commit suicide by cop, in which case it might be less reasonable, I think, as I understand her point, to burst in to the house and instead police should be pursuing other kinds of de-escalating options. But here, there was both reason to think it might be suicide by cop, but also some reason to think this guy might have actually already shot himself and needed medical attention.
Will: Yeah, I agree. That's an interesting point.
Dan: And just to be clear, he had not shot himself. And instead, he was hiding in the closet and then and he didn't actually shoot at the officers. But he had a gun near him, and maybe was poised to, and was arrested for and convicted of assault of an officer.
Okay. But the really interesting thing that I've already written a blog post about in record time, for me, not for others, was Justice Gorsuch has a three-page concurrence. So, also, he's on board. Unanimous opinion. First of all, he says, "Look, this exception, yeah, it exists, I get it. A question lingers. Why? Does the Fourth Amendment tolerate this limited emergency aid exception to the warrant requirement, just because five or more Justices of this court happen to believe that such injuries are reasonable? Or, is this exception more directly tied to the law?" There he is quoting his dissent in a case from eight years ago called Carpenter, a case about digital searches. We don't need to get in the details of it.
But where he laid out an approach to the Fourth Amendment that is different than the prevailing approach, which is based on reasonable expectations of privacy. And he said, “Instead, to figure out whether the Fourth Amendment applies, look to the law.” But then, he said, "I don't really know what that means. Does it mean you look at 1791 law? Does it mean you look at the positive law today? Not sure. We're going to have to figure this out." And unfortunately, he has not really had opportunities and has not really looked for opportunities, as far as I can tell, to flesh that out.
You've written about this. Your theory is option two, “Look at the positive law today.” And particularly, your view is look at the positive law governing private actors in the jurisdiction in which the police investigative conduct takes place. Is that correct? And then, the other option is what Akhil Amar has used this metaphor you might call a frozen in amber approach. So, the Fourth Amendment just takes 1791 common law, where it was and just freezes it into place.
In my paper with Danielle D'Onfro, we take a third approach. One, that in part relies on your work, although, in in a different direction. Your work outside of the Fourth Amendment context and also engages with your Fourth Amendment piece with James Stern, and say, “Actually, court should choose option B.” They should say, the answer to Justice Gorsuch's question about which one is neither. Instead, they should do basically either general law, or you could just call it an evolving common law analysis and just say, "What do we think the common law today, based on all these different sources we can look at, suggests about this?" I think this opinion is best read. Justice Gorsuch does not clearly tell us, but I think this opinion is best read as actually choosing option three.
Will: Okay, good. So, here are two thoughts. There are definitely parts of it that are close to option three, but there are parts that I think is--
Dan: Because he looks at the restatement from the 1960s, he looks at a case from 2014, he looks at some 20th century cases.
Will: He looks at cases from other jurisdictions. But there's a part where he does refer to the principle that officers lacking a valid warrant can take actions that any private citizen might do without fear of liability, and then normally, they do no more than that. Well, private citizens of Montana are governed by the law of Montana. If you were a private citizen of Montana and you violated the law of Montana by following the general law, it wouldn't get you very far.
Dan: Yeah.
Will: But here's the thing. The obvious solution to this problem is to overrule Erie, at which point the positive law and the general law collapse. And the real problem--
Dan: Unless there's a jurisdiction that has abrogated the general law-
Will: No. But even-
Dan: -by statute?
Will: -they may not be able to abrogate the general law as applied to-- I don't know, that's not as obvious to me. So, it's not clear to me how different the positive law and the general law should be. They may be different in practice, but it's not clear how different they should be.
Dan: And here, they seem to all, the old common law and in the modern-day common law seem to point in the same direction. As far as we can tell, he cites one Montana case. There's no reason to think the Montana law points in a different direction. So, it's all going in the same direction. And so, the harder case would be where there's some conflicts, like modern common law or particular jurisdiction's common law is clearly inconsistent with 1791 rules.
Will: Montana adopts a let them die doctrine, that says nobody's allowed to go on anybody else's property to try to save their life, because everybody must rush in their own boat, and you have to decide if that applies to the police or not.
Dan: So, we will see. Would you at least concede that all things equal, this is slightly better for the general law approach?
Will: Ah, sure.
Dan: Like, if you had to pick what he believes?
Will: I think you make a very good case that the general law approach is a good way to read the spin.
Dan: So, for more on that, look at my blog post on the Divided Argument blog, blog.dividedargument.com. We are out of time, so let's close it out.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to Deb Cafaro for her generous support of the Constitutional Law Institute and of the University of Chicago Women's Board.
Dan: Thanks very much for listening. Rate and review the podcast wherever you get your podcasts. Go to our website, dividedargument.com. For transcripts, blog.dividedargument.com. For my article, my piece about Case v. Montana and many other posts from the broader extended Divided Argument universe, store.dividedargument.com. For merchandise, send us an email, pod@dividedargument.com. Leave us a voicemail, 314-649-3790. And if there's a long delay between this and our next episode, it will be because Will got sick by eating lake shrimp.
Will: [laughs]
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