The Justices have been on their European vacations for a couple of months but we're still cranking out episodes breaking down last Term. We start off by discussion Will and Michael Stokes Paulsen's SSRN-breaking article arguing that Donald Trump is ineligible for the presidency under Section 3 of the Fourteenth Amendment. We then break down a couple of shadow-docket happenings involving "ghost guns" and the Purdue bankruptcy. We then finally clear our backlog of June opinions by discussing two last opinions: Coinbase v. Bielski, which involves the intersection of arbitration and appellate jurisdiction, and Groff v. DeJoy, which importantly clarified employers' obligations to provide religious accommodations to employees under Title VII of the Civil Rights Act of 1964.
The Justices have beenoff on their European vacations for a couple of months but we're still cranking out episodes breaking down last Term. We start off by discussion Will and Michael Stokes Paulsen's SSRN-breaking article arguing that Donald Trump is ineligible for the presidency under Section 3 of the Fourteenth Amendment. We then break down a couple of shadow-docket happenings involving "ghost guns" and the Purdue bankruptcy. We then finally clear our backlog of June cases by discussing two last opinions: Coinbase v. Bielski, which involves the intersection of arbitration and appellate jurisdiction, and Groff v. DeJoy, which importantly clarified employers' obligations to provide religious accommodations to employees under Title VII of the Civil Rights Act of 1964.
[Divided Argument theme]
Dan: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, did you have a nice vacation?
Will: I had a great vacation.
Dan: All right. Both of us are, I think, back for the duration for this academic year. No big travel on my calendar. So, we should be able to provide not an infinite supply of episodes, but I'd say regular episodes. Can we make that promise?
Will: [laughs] Well, we can make it.
Dan: Yes. Can we believe that to be true, even if we don't?
Will: I believe we will have a regular supply of episodes.
Dan: Okay. And we're recording an episode here late August, very much the dead time of the court, and nonetheless, we're still digging, going back to some of the court's work from the last term to make up for our long absence. But at the outset of this episode, I'm going to do something I really don't like to do, which is to give you credit for something, Will, and actually a few things. There's a small thing and a big thing. The small thing is as, Will, you know, I've been trying to design my constitutional law class. I'm finally teaching that for the first time this spring. And I looked at all the case books, and I unfortunately determined that I wanted to use your book. Really didn't want to have to do. Didn't want to kind of enrich you further and burnish your already sterling credentials. But it's a very good book. I'm really looking forward to using it, and I think my students will like it.
Will: I think that was the big news, Dan.
Dan: It's very big of me to be willing to do that and to give you credit.
Will: It is a big book too, unfortunately.
Dan: It is heavy. Goes through kind of all the amendments, ton of First Amendment stuff that I won't be able to teach. But I like it. It's organized structurally around the Constitution, which I think is cool. It has a lot of history without being too overwhelming, and it emphasizes some non-case, non-judicial, constitutional interpretation materials, which I think is good.
Will: Well, just as a warning. I started using that book when I started teaching constitutional law, and I was not one of the editors of the book, and I kept sending the editors emails, helpful suggestions about pieces, their coverage I didn't quite like, or things I would change or places I thought it was too one sided. And the next thing you know, they strong-armed me into becoming the newest editor on the book. So, we've been texting a bunch about your class and ways to structure it. So just be careful, or you might find yourself--
Dan: Well, that was the thing that put me over the edge, is you promised I could use you as a sounding board, and I didn't think you'd actually take you up on it quite as eagerly as I have. But there's going to be more. So, if anyone is my future student, you don't even know who you are yet, but you will get to appreciate Will's book and perhaps other law students across the country are using it or will be using it. And it's actually pretty good.
Bigger thing to give you credit for, you've had a very big couple weeks. You've had about, I don't know, arguably as big a couple weeks as you've had in your academic career in some sense. You and your casebook author, actually co-author, Michael Stokes Paulsen, released your draft article into the wild, The Sweep and Force of Section Three, forthcoming, University of Pennsylvania Law Review. It's a hefty article, 126 pages.
But in this article, you go through the analysis very systematically, trying to understand Section Three of the 14th Amendment. And the upshot of it is basically that this is a constitutional provision that you say is currently in force, is self-executing, doesn't require anybody to do anything about it. And just of its own force, it means a bunch of people are ineligible to be federal officers in the United States, including Donald Trump, ineligible to be president.
Will: Yeah, that's what we say.
Dan: It's a big result. I feel kind of dumb because a month or two ago, you mentioned this article to me. You were like, "Oh, do you have any good idea for a title for this article?" And I was like, "What's it about?" You're like? "Oh, it's Section Three of the 14th Amendment. Talk about Trump." And I was like, "Oh, that sounds pretty interesting." And I didn't just connect the dots in my mind to realize what a big deal this article was going to be. Maybe it's an even bigger deal than you expected it to be, but this got out there in the world. Adam Liptak at the time sort of piece about it as it was released into the wild. And the headline quickly became, "Conservative Legal Scholars Say Donald Trump is Ineligible to be President." Satisfying a lot of lib Twitter's hopes and dreams. And so, this has gotten very widely shared. It actually broke SSRN, the Social Science Research Network, the website that people use to distribute draft papers. You couldn't download papers off of SSRN for a little while immediately after this was released. It currently is sitting at 84,362 downloads, which is a lot.
Will: I have 84,374.
Dan: Okay, maybe you have to reload. I opened up the page like five minutes ago, so maybe I need to reload it to get the current number. And it was mentioned by Governor Hutchinson at the Republican presidential primary debate.
Will: I feel especially gratified now because for a long time, one of the things you've had on me is having your scholarship discuss the presidential primary debate by people to judge, referring to the smarter minds than his that have proposed various proposals for Supreme Court form.
Dan: That I've snuck into my Twitter bio, on my X.com bio rather.
Will: Years later, seven years later, I feel like I'm starting to catch up to you.
Dan: Yeah, I don't know if I have that much to show for it, certainly didn't juice my SSRN downloads. I thought that article did pretty well. It had like thousands and thousands of downloads, but not on this order of magnitude.
Will: I will confess I was not predicting this level of response. I mean, until now, I felt like the two things I was most known for, which I don't necessarily regard as my greatest accomplishments, were coining the term the "shadow docket." I was pretty sure that was going to be the most notable thing I'd ever done in my life and writing. About why qualified immunity was wrong, which I think was my most downloaded article till now. 6000 downloads, which I thought was a pretty respectable number of downloads for a law review article. I did not think that this article would already be ahead of that by an order of magnitude. It is not the most downloaded law review article on SSRN, as far as I can tell. I think Daniel Solove, GW privacy law professor, has an article on I've got nothing to hide and why that's the wrong way to think about privacy. That's in the hundreds of thousands of downloads.
Dan: Give it time, though. It's only been up for two weeks.
Will: Yeah.
Dan: And it depends what happens. If let's say your argument would mean that, say, Secretary of State, to the extent that person has discretion should, if they're faithfully applying the Constitution and they agree with your analysis, refuse to put Trump on the ballot for the president. In some state, which could happen somewhere.
Will: It could. I mean, I'm not holding my breath, but it certainly could.
Dan: And that would produce litigation, for sure. It seems like there's a pretty good reason to think there will be some litigation involving these issues somewhere, even if it doesn't go anywhere. So, I think this is not the last we're going to hear about this issue.
Will: I will say the article is very long. It's the longest article I've ever written by a huge amount, which is a place where IOA, my co-author was right. The article is 62,000 words. And as people know, like a sort of a long law review article is in the like 30,000 to 40,000 words range. Like once it's over 35,000 words, you start to think like, "This is too long. Will journals publish this?" And we're at double that. And there was a point as we were working on the article, which took a long time, where we got over like 40,000 words, and I was like, "Mike, we got to stop. [laughs] It's too long." And he's like, "But wait, look at what Lincoln said about insurrection. What about this? What about this?" And I was just like, "All right." Well, just at some point, it just broke the point where it was worth trying to make it short, and we just decided to be thorough, say what there was to say. There's some places we trimmed. There are places we took out things.
Dan: What was the longer version?
Will: So, we have a discussion in the paper, Congress's application of both Section Three and its predecessor, the Ironclad Oath, to members of Congress-- sent to the sent Congress during and after the Civil War, of which there's a ton of interesting examples. And we originally discussed all of those examples in detail, and we have since distilled out what we thought were the most important examples and the highlights. That section used to be a lot longer.
Dan: So, that would have been 150 pages.
Will: Maybe, I don't remember, maybe 10 pages. And I think we discussed a lot Lincoln's legal theories of secession, which were central to the 14th Amendment and to seeing the south as an insurrection and a rebellion and talking about what insurrection rebellion were and how they worked. I think that used to be longer because, like it said a lot of smart things. But still erring on the side of being thorough, I think, especially given the attention this has gotten, turned out to be important.
Dan: Well, I have not worked my way through the entire 126 pages. I've been reading it part of the way through. One thing. Will, you're a very good writer, but I will say Paulsen, your co-author, is he's no shrinking violet. He really likes to say things forcefully. And so, there are points in the article where you can sort of tell maybe it's coming out a little bit more forcefully than your typical Will Baude solo piece.
Will: Are you saying I'm a mealy mouthed academic?
Dan: No, I'm just saying you've got a certain amount of restraint, and this is a little bit more--
Will: Paulsen's an amazing writer, but, yes, it's true. The fun part of writing the piece has been trying to merge our styles. But I think there are parts you might guess were Paulsen-ish that actually I wrote and maybe vice versa.
Dan: I was reading it earlier today, and there was a part where it's talking about some argument that you're about to reject, and you say, "Well, the argument is not entirely bonkers. It does not withstand more serious scrutiny." I like that. The word "bonkers" appears twice in the article.
Will: That is true. Yeah, I like that too. So, confession actually, when I was a 1L in law school, I came across an article by Paulsen called Is West Virginia Unconstitutional? That's also an incredibly long article about the actually quite serious problem of the admission of West Virginia to the Union, despite the fact that it was formed part of Virginia during the Civil War without, some would say without the state of Virginia having consented to that and there's a clause in the Constitution about that. That article is amazing. I mean, it was just one of those deep dives into a nerdy constitutional issue. And then, I was like, "Who is this Paulsen guy?" I just went on the Free West Law printer at Yale and printed out all the Paulsen articles and then slowly worked my way through them. It was like an important part of my counteracting agent to some of the things I was learning in constitutional classes at Yale.
Dan: Because you didn't do your reading for Con Law at Yale, right? [crosstalk]
Will: This is what I did instead, and I read the complete works of Michael Stokes Paulsen, which made me who I am today. I mean, I didn't agree with all of it. So, in some ways, getting to know, work together with him and work through these issues was really fun. I hope I'm allowed to mention the name of other podcasts because I promised I would. Paulsen and I appeared in an episode that dropped today as we're recording this on an episode of Akhil Amar's podcast called Amarica's Constitution with his cohost, Andy Lipka. He actually first leaked the existence of this article before we were ready to post it, and I was suddenly getting calls from reporters asking to see the article and including a reporter who had a bootleg copy of the article that said, "Do not circulate our blog. This copy is for comments to the authors only," which he then wrote a story about, like quoting a bunch of things that we don't actually think are correct, which was also not an experience I'd ever had before.
Dan: Yeah.
Will: Anyway, we went on Akhil's podcast and ran out of time. We probably will do another episode, working through a lot of the details about exactly what does it say and who is an enemy and how does this work and so on.
Dan: You described Akhil on your Twitter as teacher-friend-roommate. Whose roommate is he?
Will: Paulsen. Paulsen and Akhil were law school roommates. And as Mike has recounted in several places, Akhil apparently used to follow him around the dorm at 1:30 in the morning, like chasing him into the bathroom, continuing to argue about constitutional issues.
Dan: If only transcripts of those conversations were available, that would be something of great interest to constitutional scholars. Well, congrats on that. I guess I should still get a dig in, just to keep you honest--
Will: Go for it.
Dan: One thing I have given you a hard time about, probably not on the show, but maybe privately, is for such a prominent ironclad conservative, you have a lot of articles that end up using your methodology to lead to outcomes that liberals are super happy with. And it happens again. I'm not saying you're doing it on purpose, but I do think that is a combination that gets a lot of attention for people. Because in this article, a lot of libs want to wave your article around and say, shout out to conservative Justices about it. And that gives you a certain amount of credibility that if someone else had written this exact article, just wouldn't have.
Will: Yeah, it's definitely true about this issue. We are not the first people to say that Donald Trump is disqualified under Section Three of the 14th Amendment. People have been saying that. We are the first people to say it in 126 pages. And I think we bring some constitutional analysis to bear on that. That's an historical analysis that's relevant, but thought it was a little funny the way many stories about this, say, "Federalist Society members, Baude and Paulsen," there are like Twitter feeds about how the Federal Society has a memo out, the Federalist Society is going after Trump. The Federalist Society is who they nominate, they don't take positions and it could well be this article is a great embarrassment to many people in the Federalist Society. I have no idea.
Dan: Have you been instructed by the Federalist Society not to identify yourself as such?
Will: No. But-- [crosstalk]
Dan: Steve Calabresi, apparently there was an article in the Times the other day quoting him about something and then it said he has been a cofounder of the Federalist Society. He has been instructed by the Federalist Society not to refer to self as that or something like that. It's a little ambiguous was going on there.
Will: I don't know the backstory of what's going on there. I mean, I know Steve pretty well. I do think he was regularly being quoted as if he kind of spoke for the Federalist Society. I mean, they would just say, like "The cofounder of the Federalist Society says X," but people didn't know that. I don't know if you ever felt this way, but when I talk to journalists about the Supreme Court, I don't like to talk to journalists who I think are going to identify me as "Roberts' clerk, Will Baude says," and especially when the only interesting fact about me was that I was a former Roberts' Clerk. I was very reluctant to talk to journalists unless I trusted them enough not to sort of pitch it that way. Even though I am a former Roberts' clerk and I do have views, I just didn't want to give the impression to people that I was sort of speaking ex cathedra or ex chief justiceship.
Dan: I guess I haven't worried about that as much in recent years because Justice Kennedy hasn't been on the court. I guess that doesn't really bother me as long as it is a true fact about me that I clerked for Justice Kennedy and then it sort of would depend on what is being paired with. If I'm just saying, "Here's my analysis of the court," that doesn't seem objectionable to me. But maybe it depends.
Will: I think I got called when healthcare cases were pending. Like, "We need a former Roberts' clerk to come on TV and predict what Roberts is going to do." And I probably was like, "Well, it would be cool to go on TV and predict what the Supreme Court is going to do, but I don't want to go as the former Roberts' clerk predicting what the Supreme Court is going to do."
Dan: You don't really like going on TV though. You could have gone on TV and media all over the country for this article and you have not.
Will: That is true. At the time. I did not have a podcast with you. Turns out to be the best possible venue in which to talk about these issues, and I prefer it to almost any other available media venue. But it's true, I don't really like going on TV. It's not a very good medium for me.
Dan: Well, maybe you just need more practice. You've gotten more practice with podcasting. I think everybody gets better at podcasting as time goes on, so don't rule anything out. Fox News could have some openings in its lineup eventually. You wouldn't be the first former Supreme Court clerk to have a show on Fox News.
Will: You're referring to Laura Ingraham?
Dan: I am.
Will: Hard to imagine.
Dan: It is a little bit. All right, well, I'm hopeful, but I guess not particularly optimistic that somehow the interest in your article will translate into additional downloads for this podcast.
Will: For this podcast?
Dan: Yeah. I don't quite know how to do that. Can you make some further claim that lib Twitter will be like nuts over? Like, "By virtue of Section Three of the 14th Amendment, Trump is already in prison magically," right? You can say that and they're happy.
Will: [laughs] I don't think that'll quite work either. I'll try to fix it.
Dan: All right. If you think of something by the end of the episode, let me know.
Will: Maybe we could just lie and tell people that I said exciting things about Section Three somewhere on the episode and they have to go listen to it.
Dan: No, that works, actually.
Will: It's called clickbait.
Dan: Yes. Well, didn't necessarily imagine you as being the kind of lead author of lib fan fiction, but here you are.
Will: It's a funny world. I write articles about sovereign immunity, which is pretty conservative, or why agency adjudication is unconstitutional, and nobody ever downloads those.
Dan: Yeah, but it's not like the stuff that people get really mad about. You haven't written the big article on fetal personhood or something like that.
Will: I'm going to have an article coming out in a few months about why the Supreme Court's decision in Bruen is right.
Dan: Okay. There you go.
Will: Maybe that'll get going.
Dan: That can get you there. Yeah. So, let's see. You've got some credibility in the banks with the libs that you can now spend on whatever you want. Actually, not really, because people will get mad at you.
Will: How about if I read an article saying Students for fair admissions was rightly decided?
Dan: Yeah, I mean, that would make people mad, but that said, it does just make the other stuff look all the more credible. "Look at this guy. Look at this hardcore conservative who thinks Trump is ineligible to be president." You were described at the debate as conservative law professors, right?
Will: Yes, we were.
Dan: Okay, so if you have a lot of time on your hands, I encourage you all to download the article. You can be the 84,375th and so on person to download.
Will: Yeah, 375th already passed.
Dan: Okay. Got to reload. So, let's talk a little bit about Supreme Court stuff. That article is not really a Supreme Court article. It's not-not but it's not something that's directly in front of the court right now. Could be, we'll see. But in terms of stuff that the court is actually doing, not a ton going on, obviously in mid to late August, but a little bit of shadow docket activity. So, one to talk about is this thing involving ghost guns?
Will: Yes.
Dan: This is a term that is, I guess, among the parties in this case is disputed. But as I understand it, a ghost gun is like you can go on the internet and you can just order one of these kits that lets you kind of just build a homemade gun very easily. And they have not heretofore have not really been subject to the same kind of--
Will: Why is it a ghost?
Dan: Because it's like sneaky and hidden.
Will: I think it's the lack of serial numbers, I think is the key.
Dan: Yeah. They're not going through the normal system. They're untraceable. No serial number.
Will: They should call it the shadow guns. That's the word you're supposed to use for sneaky, untraceable things.
Dan: Well, they didn't ask you. And there's an allegation. The government sort of says there's this huge explosion, they're being used in all these crimes. That's also disputed in this case. But basically, the ATF, Bureau of Alcohol, Tobacco and Firearms and Explosives, I guess is the ATFE, has issued a rule sort of saying that these things are actually covered and regulated under pre-existing federal firearms law. I took a very quick look at the statutory language. Seems kind of complicated. It seems like that's at least reasonably plausible as a matter of statutory construction. And then, what happened was some of these companies that make and sell these guns, they went down to Texas and they got Judge Reed O'Connor, who is kind of your go-to-- one of maybe two or three, but maybe he's the number one go-to kind of judge if you want to go get universal injunction against something that--[crosstalk]
Will: You think he weighs above Kacsmaryk?
Dan: I feel like Kacsmaryk has emerged more recently.
Will: Yeah. O'Connor was the original immigration nationwide injunction judge.
Dan: Yeah.
Will: The DACA and DAPA cases and so on.
Dan: I mean, he's got staying power.
Will: The OG nationwide enjoiner.
Dan: Kacsmaryk, he seems like the one you want to go to if it's like an abortion-related thing because that was a big issue for him.
Will: I read somewhere there's a chart of the different Fifth Circuit district judges and what their issues are. Lie, social issues for Kacsmaryk. Immigration, there are two different sets of immigration issues for a couple that it's well known, sort of who's your ideal--
Dan: Is this like a secret chart that's passed out among conservative litigators? Is it something I can find online?
Will: I don't know. Did I just break the secret?
Dan: I don't know. And we're not editing that out. This is a great system in some of these districts, the way that the divisions are structured. Sometimes, you are able to file in a way where you know which judge is going to be on the case. I think there's efforts to kind of change the way that works, but that's not a great system because it enables a lot of forum shopping. Especially some of these cases, they have potential hooks where the suits might be able to be brought all over the country and if you can kind of rig things up the right way. So, he issued ruling, basically universal vacatur ruling, taking this whole purported regulation totally off the books. That's now on a fast-track appeal in the Fifth Circuit. Fifth Circuit kind of modified the relief that was granted by Judge O'Connor, sort of limited it a little bit only to parts of the regulation that had actually been challenged but did not stay the order in its entirety.
And so, the government went to the court seeking a stay of the district court decision and the vacatur of this rule. And the court granted this 5-4. So, three liberals plus Chief Justice and Justice Barrett are the ones who voted to grant, which we know because we know they're four dissenters, which are the other four of them were conservative Justices.
Will: Yeah. I have a question, Dan, a naïve question. Why are there only five votes for a stay? Just a few months ago and just a few weeks ago in Showtime, didn't we talk at length about an opinion from Justice Gorsuch, joined by Justice Thomas about why nationwide injunctions and nationwide vacatur were deeply problematic, wrong, and all that stuff?
Dan: I'm a little puzzled by this, and I was hoping you were going to help me untangle it because I was looking at the government's application and it makes very forceful arguments against this practice of universal vacatur, and their arguments pretty closely track Justice Gorsuch's arguments. And it's citing some of the same stuff. It's citing John Harrison. It seemed like it should be right up his alley. But I don't know that there are other reasons why one might grant or deny a stay. It's not just about the merits.
Will: Well, I mean, there's the merits merits, and then there's the scope of relief merits. Let's assume that Justice Gorsuch and Justice Thomas think that ATF is acting unlawfully. Who knows, maybe it's even violating the Second Amendment or something. But even if they think that, on their view, the district court should still not issue an nationwide injunction. So, on the merits, it's exceeded its power. There's irreparable injury. But at least during the Trump administration, I think the court took the view that anytime a government policy or a federal law is enjoined, that's irreparable injury to the government. That's a pretty well-settled principle at this point. Then, there's balancing the equities, that's what's left. Is that just code for "I don't wanna and you can't make me."
Dan: Well, is it possible that they just don't think it's cert worthy, because wouldn’t that be part of the calculus?
Will: Okay. That could be.
Dan: Maybe just like, "Well, maybe this is wrong, but I'm not interested in it."
Will: Right. Although again, normally when a federal law or regulation is enjoined, that's presumptively cert worthy. That could be. And also, the cert worthy part is always a little funny. If five of your colleagues think it's cert worthy, [chuckles] then it's going to be cert worthy.
Dan: Yeah. Although you still would vote your own calculus, right?
Will: I'm not sure if you vote your own calculus on that question. The usual question is, is there a fair prospect of certiorari? I think you're supposed to ask an empirical question. Is there a fair prospect of certiorari? Not would I vote for certiorari.
Dan: I guess, fair. You don't have some clever solution to this or is it just--?
Will: No, I do think--
Dan: [crosstalk] -unprincipled.
Will: Well, it reminds me a little bit of Justice Alito's vote to deny the nationwide stay in the [unintelligible [00:24:40] case. There's some kind of argument that I don't fully understand that's like I'm not saying what they did was right, what they did was wrong. But once we are being asked to stay it, some new set of-- you rerun some set of considerations. So, something like that is going on. I don't totally understand what that principle is and how it works. We do have this recurring dynamic of Texas judge grants nationwide relief against the Biden administration. Fifth Circuit lets that stand or lets part of it stand or lets a lot of it stand then go to the Supreme Court. So, it seems clear we need some-- seems that's a recurring pattern and I don't totally understand what legal standard the court applies to that pattern. I wish they would tell us.
Dan: Yeah. I mean this goes back to your very original complaint about the shadow docket, which is just they're not giving us an explanation and sort of seems not lawlike at that point.
Will: Right.
Dan: Where this seems inconsistent with a view that Justice Gorsuch expressed months ago, it would've been helpful for him to-- It doesn't have to be a long opinion. Maybe like one paragraph. Right.
Will: I think if I had joined Justice Gorsuch's opinion in US v. Texas, would have the posture that in almost every case where the [unintelligible [00:25:49] Texas grants a nationwide injunction, I will vote to stay it because I don't think they should be doing that. And it's hard to imagine how a nationwide injunction that exceeds the jurisdiction of the district court could still be justified by balancing the equities. Now, Justice Barrett joined Justice Gorsuch's opinion, and I would not be surprised if that's her view. I just wish I understood why it's not Justice Gorsuch's view.
Dan: You would not be surprised if which is her view? That she believes you should always grant-- [crosstalk]
Will: Well, she thinks should stop-- yeah, the district courts in Texas should stop exceeding their authority and that the court should stop them from exceeding their authority.
Dan: That would be nice. Well, maybe there will be a 5-4 majority for doing so. But it will be interesting to see how this vote on the stay translates into votes on the merits, because the court has said this-- sorry, have they granted that cert yet, or am I getting confused with Purdue?
Will: They've not granted it yet.
Dan: Okay. Never mind, editor check that out. So, it'll be interesting to see what happens with the merits of the case. I presume at this point, it seems fairly likely that the court will grant cert, although I guess it depends a lot on what the Fifth Circuit does.
Will: Yeah, I saw the panel somewhere which looked good for the manufacturers. So, I predict the Fifth Circuit will also rule against the ATF, and at that point, the SG will once again seek certiorari from the United States Court of Appeals for the Fifth Circuit.
Dan: Yeah. Well, we'll see what happens. So, the government actually, in recent weeks has gone two for two on seeking emergency relief. So, the other case is this Purdue Pharma case, which is the company that makes OxyContin. Great pain medicine, makes you feel really good. Unfortunately, gets people super addicted. It's killed a lot of Americans. And Purdue Pharma is in bankruptcy proceedings. And basically, what has been going on in the courts below is that the Second Circuit said was okay is sort of a scheme in which through the bankruptcy process, the Sacklers, which are basically the folks that owned Purdue and made $11 billion or more from it, were going to be released of all liability for potential claims against them in exchange for this bankruptcy going forward. The problem is there's a bunch of people, this would be kind of like a release of claims against the Sacklers by people that are not even parties to the bankruptcy.
And so, this is very controversial as to whether this is ever permissible. The government says it isn't. And the government, through the US trustees complicated official who plays this big role in bankruptcy proceedings, has come in and said, like, "This is really problematic. Bankruptcy code doesn't clearly authorize. It actually raises constitutional concerns about extinguishing property rights for people that are not parties to the proceeding," etc., etc. And it's something that had been criticized a ton. And so, the court did stay the lower court, so this bankruptcy agreement is not going to go into effect right now and the court has agreed to expedite review of the case and it's going to hear it in December.
Will: Yeah. I find this very interesting. I don't understand it very well because I have a hard time understanding anything related to bankruptcy law, although I do try because it implicates things I was supposed to understand.
Dan: Article III stuff in there.
Will: Yeah, well, it's part of why it took me so long to figure out non-Article III courts is because I had a hard time with bankruptcy. This is part of a broader academic debate that two of my colleagues, Tony Casey and Josh Macy, have been forefront of, I think what most people regard as the wrong side, but I regard as the right side, about sort of which is better? The bankruptcy system or the mass tort system? There have been several different legal contexts this has come up in. There was a big Third Circuit case recently. Meanwhile, there's massive litigation against 3M for earplugs and several places where we see people trying to use the bankruptcy system as a way to handle what would otherwise be debilitating mass torts claims.
And the mass torts people say, "This is either going to be bad for the victims because their claims are being cut off," or sometimes even when the claims are devised in a way where it's hard to say that the plaintiffs have really been made worse off, it's still bad because people don't get their day in court or we should have more process, or things like that, or this is not what the bankruptcy system was supposed to be for. And then, folks like Macy and Casey, that's actually this is something the bankruptcy system can handle well, we should be happy to have it handle it. It's actually accomplishing a lot of the purposes of the bankruptcy system. I think Purdue is-- going to be the Supreme Court's first encounter with that general problem, even if they end up focused on the statute.
Dan: Yeah.
Will: Do you know this US trustee, is this kind of litigation--? My sense is that the US trustee in a normal bankruptcy case, it's not like regularly meeting with the White House or whatever to figure out what the administration's position is on this bankruptcy, in a normal bankruptcy case.
Dan: That seems unlikely. There's a lot of bankruptcy cases.
Will: Yeah. Do you know that's true in a big case like this? And is this a case where the SG represents the US trustee because somebody has to and it's the SG's job? Or is this a case where it's like, this is like the administration policy on bankruptcy issue, you know what I mean? There are cases where the SG is kind of there on behalf of an agent or agency that's a little more-- [crosstalk]
Dan: Well, the trustee is an official of the US DOJ. It's part of the Department of Justice. I mean it would make sense that the SG's office who's the lawyer for the Department of Justice would be in there, right?
Will: Yeah. Is the position in this case being driven by the SG's judgment about the law or is it being driven by the trustee's judgment which the SG then just tries to represent as long as it's fair?
Dan: I don't know. I mean, I think that given that the trustee is just part of a subset of the DOJ, you think that they would maybe not be given as much deference as other parts of the government like some independent agency, but I don't know. I don't exactly know how that program works. They have this kind of interesting role where they're kind of in there, even if they're cases where the US doesn't have any claims, they're kind of just like there to try to see that everything is going well, everything's hunky dory.
Will: Bankruptcy is wild.
Dan: But I don't know. I assume that a case of this caliber, the SG's office and DOJ generally and possibly the White House, though I'm not sure, have really thought hard about the big picture implications. I mean this is like big economic ramifications here.
Will: Yeah. I mean big implications either way.
Dan: Yeah. And no noted dissents from this order.
Will: Well, the order is a grant of cert and a stay pending cert.
Dan: Nonetheless, not everyone has to go along with that.
Will: That's true.
Dan: And someone could say I would deny the petition and the stay.
Will: As I understand this case which again, is not well, the stay question was a little bit one sided in the sense of, if the court wanted to hear the case it kind of needed to grant the stay. [crosstalk]
Dan: There's some disagreement about that in the filings.
Will: But the stay is not going to do any sort of irreparable injury. If you're going to hear the case and eventually say this is fine, holding it up for a year is not going to cause it to fall apart.
Dan: Victims are not going to get their payouts in the meantime.
Will: For a little while.
Dan: So, we'll see. I mean this is one I'm going to be very interested in because it might have some sort of like cross-cutting ideological considerations. I mean there is this kind of like fairness, property rights kind of constitutional set of issues that might appeal to conservative Justices. And it's also got this, are we going to let these billionaires who have all this blood on their hands get away with this? Which will appeal to liberals. So, I could see this going a lot of different ways. So, I'm interested. And I think that you are going to need to bone up a little bit on bankruptcy between now and December. Because I'm just going to say right now, this is a case we're going to talk about.
Will: Yeah, no, I'm going to try.
Dan: Okay. We're kind of digging pretty deep at this point, but we do have a couple more opinions from June to get through. I think these are going to be our last ones.
Will: I was going to say, would you say we've now covered what we need to cover?
Dan: I was looking at this and with we're going to do today, we will have covered all but one of the kind of last week cases. We're not going to talk about this case, Abitron, which is about extraterritoriality, because it just turns out neither of us is quite interested in it enough.
Will: I mean, I teach extraterritoriality in conflicts but still.
Dan: This one in particular just isn't. And then, some of the other cases from the weeks before that. So, I think at this point, we've done what needs to be done and no one can really complain that we didn't really do enough. I guess we didn't do as deep of a dive on Allen v. Milligan, voting rights act case as we might have. We didn't really do Sackett.
Will: That's true.
Dan: The environmental case. Yeah, we'll see.
Will: Digging to May. That's great.
Dan: Yeah, I'm just looking at the list here, but we did a lot of other stuff, so we might never get to those, but we're going to give you some more. And so, two today are Groff v. DeJoy, which is a question about Title VI, the Civil Rights Act, and religious accommodation. And we have Coinbase, Inc. v. Bielski, which is a case about what happens when there is an interlocutory appeal of an order denying a motion to compel arbitration. Sort of a fed courtsy case.
Will: So, where do you want to start? With the important case or with--[crosstalk]
Dan: Which is which?
Will: I was trying to make a joke about how important Coinbase is, but it didn't quite--
Dan: Is it really important? Let's talk about it. You opened the door. So, this is the arbitration case and the basic question here is, you're in district court. There's some kind of civil dispute going on in district court. There is an argument about whether there's a valid arbitration clause that requires the dispute that's currently being litigated be arbitrated. And then, you're the party, you're the defendant say you want arbitration, and you file the motion and the court says, "No, thanks." The law says you can then go get an interlocutory appeal kind of in the middle of the proceeding of that order denying a motion to compel arbitration. You can do that. Everyone agrees you can do that. Question is, what happens in the district court while that happens? Does the district court have to put pens down and just kind of wait? Is it stayed? Or can the district court keep doing other stuff while the Court of Appeals resolves this question about the motion?
Will: Well, not just other stuff, do other stuff on other cases [crosstalk] keep proceeding on this case.
Dan: I presume people knew what I was trying to say. Obviously, the district court doesn't get fired of all cases, but yes. Can proceedings in this case continue the same way it would if there was no appeal filed? Or does everyone have to kind of freeze frame?
Will: Right. In other words, to what degree does a pending interlocutory appeal divest the district court of jurisdiction over some part of the case or the part of the case that's [unintelligible [00:37:08] appeal.
Dan: The more highfalutin way of phrasing it, but sure.
Will: Well, I think it's my fault we're talking about this case probably because--
Dan: No, I said I wanted to talk about this.
Will: Well, okay, fine. I started following this case when we were talking about Moore v. Harper, where we had this issue of the Supreme Court was hearing proceedings about this independent legislature issue, and then the North Carolina Supreme Court wanted to sort of reopen that issue, and could they do that? We talked about whether that made it moot. And one of the issues floating around there is kind of the same thing. Can you do that? Can you, the lower court, start reconsidering an issue while it's up on interlocutory appeal to the Supreme Court? And there is a kind of-- I had thought-- apparently, only five Justices of the Supreme Court agree with me. I had thought there was a long-standing principle whose boundaries are kind of debatable, but a long-standing principle that the default is one court at a time. And so, if the issue, if the football is in the appellate court, the district court is not supposed to make plays on the football.
That's what the majority says in this case. They say this is the Griggs rule. The Griggs principle, the sort of default rule that one court deals with something at a time. And then, they have to figure out, is it different here for some reason? Is something about the text or structure of the Federal Arbitration Act mean that default rule doesn't apply? How does that rule apply? But they take that as their main guiding principle, right?
Dan: Yes. And just to back up a second, this is an opinion by Justice Kavanaugh. This is a 5-4 case. He is joined by the Chief and Justices Alito, Gorsuch, and Barrett. Then, you have a dissent by Justice Jackson that Justices Sotomayer and Kagan join, and then Justice Thomas is actually with them for a good chunk of it. So, court divides narrowly. And an interesting configuration. The Cavanaugh opinion, as you said, it says there's this principle, this Griggs principle that it says, and this is kind of the normal rule, when there's an appeal, district court is not supposed to keep doing stuff. It's supposed to jurisdiction over that stuff. It's supposed to go up to the Court of Appeals. That was your intuition. I sort of think that was my intuition. I hadn't thought about it as deeply, but when you said that in conjunction with Moore v. Harper, that sounded right to me, that fit with my intuitions and my conception. But then, Justice Jackson says, "No, that's actually not a thing. The normal rule is actually kind of more discretionary and that you're supposed to go ask."
Will: She says the normal rule is if you want a stay, you ask for a stay. Which also, when you say that, that sounds kind of intuitive. You want a stay, you should ask for a stay. And a stay would then be on a discretionary basis, not on an automatic basis. You'd have to ask for it and so on. And of course, in many cases, I guess this seems like it comes up the most in interlocutory cases because if the lower court rule is kind of final, there's nothing for the district court to do.
Dan: Yeah, I mean, there can be other stuff like attorneys' fees. Those are usually allowed, the district court's usually allowed to still be dealing with that kind of collateral stuff.
Will: And I think that'd be true even under what the majority thinks is the Griggs rule because that's sort of collateral. But this kind of idea of like, "We're up here trying to figure out the answer to X and you're down there proceeding on not X," seems like especially an artifact of that kind of interlocutory posture. So, I think we have two questions. One is, what is the background rule? And then the other is, does the FAA in some way depart from that background rule, whatever it is? And I was surprised, and I'm not sure the dissent's wrong, but I was surprised that there were four votes to say, actually, there's no such background rule. That surprised me.
Dan: This is-- I think we need a name for these this point. This is kind of what I would call maybe like a Justice Kavanaugh kind of drive-by opinion, in the sense that the mode of analysis, it's not completely bereft of any legal analysis, but it kind of has like, "We've got five votes, so let's just get to the point," kind of feel to it, like it doesn't really engage much with the dissent. It kind of glosses over what seemed to be kind of harder issues and gets to the result. Is that fair?
Will: Well, I will say it reminds me a lot of US v. Texas, if that's what it is. So, US v. Texas, you recall Justice Kavanaugh says, well, we have this basic principle, the Linda R. S. principle, that in general, courts don't let one person come in and complain that the government isn't prosecuting somebody else. There are complications, that's the basic principle. And then here, people say that principle shouldn't apply or there are complications. And I think in the US v. Texas, there are like five exceptions or complications, the court notes, and then it's done. And so, here we start with the Griggs principle, which is standing under the Linda R. S. principle. And then, the court says, "Okay, we got the basic principle. Now there are five possible counterarguments. They all don't work. There you go. Our job is done." I mean, both cases, the court is distilling what it thinks is like the core principle that obviously is doing the most of the work before it then deals with the complications. And here, apparently, that is itself a consequential and 5-4 proposition whether there is such principle.
Dan: This case, by the way, came out the same day as US v. Texas.
Will: [chuckles] I'd forgotten that.
Dan: So maybe like with both of these, trying to make these kind of quick and dirty in [crosstalk] homework.
Will: [laughs] So I was also interested the majority name checks twice a lower court judge, Frank Easterbrook, for this principle. You sometimes see that sometimes, the Supreme Court sort of endorse or draw from a lower court opinion. But he got sort of quite prominent treatment on this issue, which was kind of interesting and nice.
Dan: He's a big jurisdiction guy.
Will: Yeah. I'm told there's a book, a privately circulated book or something, that's like Frank Easterbrook on Jurisdiction. It's just like a collection of all the great Easterbrook jurisdictional opinions of which there are many.
Dan: And that exists, and you don't have a copy of it? I would think if anyone would have a copy, you would.
Will: I would like one. Maybe this is just an idea Easterbrook clerk had, and I've now leaked it. Sorry.
Dan: You should produce it.
Will: No, it'd be great. I'm not sure I'd be selected as worthy to edit it or write a preface, but it would be an honor.
Dan: Yeah, but looking back, I mean, Arizona v. Navajo Nation, which we talked about a little while ago, it also has a little bit of this feel. It's a pretty short opinion, guessing a pretty lengthy dissent, just doesn't want to kind of get into it with the dissent as much. Is he really just kind of setting himself up to be the Justice Kennedy of this next configuration of the court? "I'm in the middle. I'm going to say what I want to say. I don't really have any obligation to defend everything I'm saying."
Will: I think it's a little bit more Chief Justice Rehnquist energy here in that, I mean, you know better than I do but Kennedy opinions were not often as short and to the point and focused on a single principle.
Dan: Yes. That's fair. They were not responsive though to all the counterarguments.
Will: Right. But I think--[crosstalk]
Dan: He questioned his own view.
Will: Were also often sort of more affirmative than responsive, but also a little bit more likely to sort of really distill something down.
Dan: I mean, the joke about him or true story, I don't even know, was he would tell his clerks that, "This is a good draft, but you need to delete the reasoning."
Will: The specific version of the claim I'd heard is that he would take the draft, circle the first sentence of every paragraph, and then starts them to delete all of the rest of the paragraphs and combine those sentences into a new paragraph.
Dan: That actually really produces decent writing. I mean, that's how people write summaries of the argument. [crosstalk]
Will: Yeah. As long as you did a good job writing the paragraphs, as long as you put the-- yeah.
Dan: Good topic sentences.
Will: I mean, look, that's how I read opinions.
Dan: You read every last footnote.
Will: Well, I read the footnotes first. The dissents and the footnotes are the most important part. And then sometimes, I can read the majority.
Dan: The most important place to read footnotes is in briefs filed by the Office of the Solicitor General.
Will: Why is that?
Dan: Oh, come on, you know this. I'm sure we've talked about this. That's where the SG's office puts all the kind of weaselly concessions.
Will: Where the bodies are buried.
Dan: "Yes, it's true that this case may say the opposite of what we're setting it for. However-", a bunch of nonsensical reasons or something like that. So, you have to check and that's not a comment about this SG's office in particular. That's just something that they've done forever.
Will: Yeah. Would you say the same is true for large articles?
Dan: No. I mean, it depends on who's writing the law review articles, but I don't think it's the same dynamic where you necessarily have to weasel your way out of something. I mean, presumably you've reached the result you've reached because you think it's the right answer. I guess sometimes what you'll see in a law review article is, "While it's true that this exact article has already been written by somebody 30 years ago, my article is different for three irrelevant reasons." That's where you see that.
Will: Yeah. I feel like sometimes I see an article that's like, "It's true that so and so has made a devastating counterargument. But--"
Dan: But I don't want to respond to that in--[crosstalk]
Will: Yeah, Murph. So, can we talk about Justice Thomas for a sec?
Dan: Yeah. What's going on there?
Will: So, he's the odd vote. If we view this as for some reason, the effective interlocutory arbitration appeals apparently is highly partisan issue, except for Justice Thomas, who votes sort of contrary to suppose a type. And he also joins only part two, three, and four of the Jackson dissent. Am I right? That means he's joining the part that disagrees about the general principle, but not the part that disagrees about the statutory interpretation part.
Dan: Yeah.
Will: I think that's because part one of Justice Jackson's opinion is a quite intentionalist rather than textualist opinion. It's sort of like, what did Congress intend in enacting the statute? Which is not what he does, but he's willing to join the part that says, "There is no background mandatory general stay rule." This is all governed by case-by-case discretion. That's interesting. Isn't a little weird not to see him write separately or something? Just explain why?
Dan: Yeah. I mean usually write separately all the time. And here he clearly has a slightly different view than any other person in the case, but we don't know exactly what it is. I mean he obviously must agree with the first sentence of part one. Congress did not impose the mandatory general stay rule that the majority adopts today. Yeah. Necessarily must agree with that.
Will: Oh, wait with--
Dan: The first sentence of part one of the dissent.
Will: I mean he did join it.
Dan: Well, right. But if he agreed with it, he would join the majority. If he agreed that Congress did in fact impose the mandatory general stay rule, he would join the majority. So, he clearly agrees that the statute does not require the result that the majority has reached.
Will: Yes. Okay.
Dan: But presumably for some different reason.
Will: Right.
Dan: Or doesn't want to weigh in on the reason or something, but he necessarily reads the statute to preclude what the majority is doing.
Will: Although he could read the statute to be silent. So, he could read the statute to be silent.
Dan: But he just says Congress did not impose the mandatory general state rule.
Will: Yes, I agree. He could agree that it did not impose it. He may not believe that the statute forbids it. He might just think the statute doesn't say either way. And then, he may think the background rule is case-by-case discretion rather--
Dan: Yeah. Just looking again at this part of the opinion, nothing in here seems like it should be-- it's not like relying on legislative history. It's just drawing structural inferences from other things that Congress has done in other provisions. I don't know. It's a little puzzling to me.
Will: It could just be he genuinely thinks the statute doesn't really cut either way. Like, if he agreed that there was a background principle, he wouldn't--
Dan: Yeah, but he at least would have to agree with the response as to why the majority is-- the argument as to why the majority statutory interpretation is wrong.
Will: Yeah.
Dan: I don't know.
Will: So, I was then trying to figure out thinking does this relate to the ghost gun thing we was talking about. I was suggesting that Justice Thomas should have an automatic rule they would stay nationwide injunctions. And maybe he has some profound belief about case-by-case judge discretion and equity. That's just not how these things work. I'm not sure. It made me realize that we just haven't heard much from Justice Thomas about sort of his views about equity-type things. I feel there's not a very well developed-- despite it being a thing many people write separately on, we just haven't seen very much from him about how he thinks about that, the discretionary part of the job.
Dan: Well, I feel he tends to get interested in certain issues and so he won't really weigh in on something and then suddenly it'll emerge. So, we might see that happen.
Will: I have one last question with the case.
Dan: Okay.
Will: Is this the first Supreme Court case to cite if you give a mouse a cookie?
Dan: I don't know. I haven't Westlawed it yet. I think quite plausibly.
Will: Because we have the famous Kagan opinion citing one fish-
Dan and Will: -two fish.
Will: Then, you can imagine a lot of cases that lend themselves to if you give a mouse a cookie principle. There's a way in which a lot of presidential reasoning is like--
Dan: It's a useful principle.
Will: Yeah.
Dan: Westlaw has confirmed this is the first citation, perhaps not the last.
Will: By the Supreme Court?
Dan: Yes. Surely by other courts.
Will: Yeah. Must be.
Dan: I didn't find this dissent-- I thought that the stuff about the general principle was interesting. The dissent saying the general principle doesn't exist, I found that-- I didn't really-- without having dug into the background a ton, I was like, this seems plausible. I'm not really sure. There were parts of the opinion that I didn't find as effective, and I texted you about this one. There's sort of an argument that Justice Jackson is making on page 10, sort of responding to what the majority is saying about statutes. I'm not going to read through it all, but I literally didn't understand what this opinion was saying, and maybe that's just me. This is on page 10.
Will: Don't make me do this on air, Dan.
Dan: Don't do it on the air. Okay. Well, I talked to you about it in advance. You were supposed to solve this problem. I don't know.
Will: I had a hard time understanding this part too.
Dan: Okay.
Will: I'm sure it's us. I'm sure it's not her. I'm sure it's us.
Dan: Another thing I just thought was-- last thing to say about this one because we should go on in just a second, which is this kind of reminded me of Glacier Northwest, the labor case where you read the majority and then you read the dissent by Justice Jackson and they kind of are like seeing the world very different ways. You're kind of just like, "Whoa, these are two totally different ways to understand what's really going on in terms of the legal background and what the underlying principles are. And I actually don't know who's right. I'm not in the limited amount of time I have to prepare for this podcast, going to be able to figure it out." Does that make sense?
Will: I mean, look, I certainly do think that Justice Jackson has shown herself to be an enthusiastic dissenter and one who's sort of-- I guess in the same way we're talking about these majority opinions, not spending too much time responding to the dissent, that these are dissents that are not just devoted to kind of like taking the majority's premises and then showing what the reason doesn't follow. They're very much have a different way of seeing the case. That said, I think Glacier Northwest was a solo dissent that reminded me in some ways of her Jones v. Hendrix solo dissent, where then we saw Kagan and Sotomayor going on a different dissenting path. And this one did seem a little different to me. You could tell that this is a dissent, this is a group dissent. This is, in that sense, I don't know, not quite as far out there maybe as some further dissents.
Dan: Fair. But it has this feel at the end of reading the two opinions, I'm like, "I don't know what's going on here." I don't feel fully equipped to evaluate the arguments because they both seem to see things differently. The same thing happened-- it's not a Justice Jackson opinion, but the same thing happened in the Navajo Nation case where it was like there's this complete uncertainty if you get through the opinions about what is even being asked for below, and it's described totally differently. So, I don't know.
Will: Right. But here I felt like, what is the background principle and how does the statute alter it?
Dan: But what's the answer?
Will: I'm not sure. No, that's true. I'm not sure. Yeah. Frank Easterbrook is not always right about questions of federal jurisdiction, but he's often right. We did also see the strong rhetoric. Did you see like page 14 of the Jackson dissent, part 5 begins, "The court today ventures down an uncharted path, and that way lies madness"?
Dan: I did see that.
Will: The first you often see-- okay.
Dan: I thought it was a little much and it's a little overly cliched. That wasn't my favorite line.
Will: It's a little bit like you made the critique of Justice Gorsuch after he joined the court that he needed to like-
Dan: I don't know what you're talking about.
Will: -choose his spots a little more.
Dan: Yeah.
Will: I'm not bringing up the other thing. Just that this is a case about jurisdiction over this veteran's appeals, also known as the most important separation of powers question in our time.
[laughter]
Will: Look, actually, arbitration is an incredibly important-- [crosstalk]
Dan: I [crosstalk] you remember what I said like five years ago better than I did.
Will: I love the showdown. Arbitration is incredibly important, and these kinds of jurisdictional issues have a really big impact on the ground. So, it's not the issue is not important. But there's just this way in which if we hold the Easterbrook view of appellate jurisdiction, that way lies madness.
Dan: Yeah, I don't think so. I really don't think there's madness. I think it's just going to be-- like there's going to be stays, it's not going to be a big deal. And maybe that's the wrong answer, but it's definitely not going to lead to any madness.
Will: Arbitration madness. Should we talk about the other case?
Dan: I suppose so. And so that is going to be, as we mentioned before, Groff v. DeJoy. DeJoy is the holdover Trump Postmaster General, right?
Will: I didn't know that it was a holdover, but I did know about the Postmaster General.
Dan: I think he's made a bunch of controversial choices and there was some uncertainty about whether he could be fired by the President. And somehow, there was some talk about whether that was going to happen. And that didn't happen.
Will: I'm positive that the Postmaster General can be fired by the President.
Dan: I mean, probably. But there was some uncertainty about maybe whether-- [crosstalk]
Will: The first [crosstalk] case about presidential removal United States v. Myers is about the President's ability to fire like the postmaster third class in Oregon, confident that it's holding extends to Postmaster General.
Dan: I don't remember what the debate was. Maybe it was a political question about whether it made sense. But there was a lot of talk that maybe he would get fired but then he hasn't gotten fired for some reason.
Will: Louis DeJoy.
Dan: He's appointed by the Board of Governors of the United States Postal Service. The postal service is, I mean, it's like a weird kind of-- [crosstalk]
Will: It's true. Since Myers, they've quasi privatized the postal service. So maybe that's supposed to make a different-- but I'm going to go out on a limb and say, I know the answer to this question.
Dan: Probably, but I don't know. But he's still the Postmaster General. He didn't really do anything in this case. This is really not about him. He's just the named party. But this is about something involving an employee of the postal service, probably shouldn't say a postman. The postal service worker.
Will: Postal worker, I think you should say.
Dan: Postal worker.
Will: Gerald Groff.
Dan: So, what happened with him?
Will: Gerald Groff is an evangelical Christian who does not want to deliver mail on Sundays. And I guess until recently that would not have been a problem because the mail mostly doesn't get delivered on Sundays. But now that the post office and Amazon have a deal to deliver Amazon packages on Sundays, he was being called in to work on Sundays, which he didn't want to do. And so, he wanted other people to cover his shifts, but they also didn't want to work on Sundays. And so, he said, "Well, I shouldn't have to work on Sundays because you have a religious protection under Title VII, you have to accommodate my religious practices." And the post office said, "Well, that would be a great hardship if we had to give you all the Sundays off and not other people." Or I think at one point, even the local postmaster generals out there were like doing the routes themselves because they can't find manpower. And so, the Supreme Court has to figure out whether or not he deserves that accommodation.
Dan: And so, I guess what had been going on was there was this language in this case, Hardison from nearly 50 years ago that included the phrase "de minimis." That's sort of like there was part of the opinion that could be read as suggesting that you don't need to give the accommodation because there's undue hardship whenever there's any effort or cost that is more than de minimis, which means not that much, a little bit. And that isn't the only way to read that opinion as we're going to find out in this case, but this case is about whether the lower courts have been right to read it that way.
Will: So, two other pieces of context. Another place we have accommodations is in the American Disabilities Act context where employers have to accommodate people who have a statutory disability, and there we don't have a de minimis standard. There are times you have to do things that impose more than a de minimis cost order to accommodate workers who have various kinds of special needs. Don't have to do everything. It has to be reasonable. And there's a whole jurisprudence on what's a reasonable accommodation. But as I understand it, sort of one way to frame Groff's theory of the case was that we ought to accommodate religion at least as much as we accommodate disability. You don't have to do anything but you have to make reasonable accommodations for people who have particular needs.
The other is, I think this earlier case, TWA v. Hardison, it's been on the chopping block for a while. If there know secret briefs of Federalist Society cases that we want overruled, if there were such a list, TWA v. Hardison would be a kind of a circulating case in the list. It's not Roe v. Wade level but it's on there. So, I think when the court granted cert, people thought, "Okay, it's time has come." And I think the Trump SG's office had said this case should be overruled and there was a statement respecting denial of cert from Justice Alito a few years ago. So, I think this was set up to be one of the big hot button cases that term.
Dan: And the new SG with the change administration comes in and doesn't totally disavow that position. But I think maybe softens it a little bit and sort of says, "Well, you don't actually need to overrule, you just need to clarify that people have been misreading Hardison." Which is basically what the court does here, right?
Will: Sort of, yeah. So, what the court does is in 7-2 unanimous opinion.
Dan: Unanimous opinion but two Justice concurrence by--
Will: By Justice Alito. Right, exactly. The language--
Dan: [crosstalk] -majority opinion by Justice Alito, and there's a concurrence by Sotomayor, joined by Jackson.
Will: "Don't obey the more than de minimis standard. That's not what the law is. We don't exactly overrule it, but don't obey that part of the opinion, because that's never really what the opinion said." You have to accommodate religion sometimes, even if it has a more than de minimis cost to accommodate religion. That said, the court doesn't then say we have to follow the ADA standard, doesn't say exactly what we have to do, but it does adopt a kind of a much more moderate view of the case than I think people expected. I think the majority opinion just doesn't take a position between the SG says you should disavow the undue hardship standard, but still say everything the EEOC has ever done is right. All the lower court cases dealing with various situations are correct. Just get rid of the words and then everything we do is right. The challenger said, "No, disavow the standard and say, actually you should basically do things the way we do under the ADA, which is much more generous." And the court says, "We're not going to say either of those things."
A lot of EEOC things are probably right or something, doesn't quite go that far, but we're also not going to say they're all right, but we're also not going to adopt the ADA case law. "We have no reservations in saying that a good deal of the EEOC's guidance in this area is sensible and will in all likelihood be unaffected by our clarifying decision today. But it would not be prudent to ratify in toto a body of EEOC interpretation that has not had the benefit of the clarification without today." [crosstalk]
Dan: [crosstalk] -most important to me that seems right, that you shouldn't just say everything in all of that body of law is correct. Maybe they haven't read it all. Maybe there's--[crosstalk]
Will: Yeah, no, I think that's right. I mean, I think that was a big ask on the SG's part. But I do think it still means this is a much less revolutionary decision than it seemed like it was going to be when cert was granted. I don't know if you listened to the argument in this, Dan, but this was argued-- this is one of the cases where Elizabeth Prelogar herself argued the case, that's like the ones that the SG sort of thinks are usually the most important.
Dan: And why does this fit into that?
Will: Had the court adopted the challenger's view, it would be big deal and--
Dan: Gone a lot further and made it really easy to get accommodations.
Will: Or at least like upended-- And those accommodations that would in turn impose costs on third parties often. Part of the problem is a lot of the time when you're dealing with things like days off or who has to work when, one person's religious accommodation imposes a cost on somebody else. Some of us want Sundays off because that's when good TV is on or because that's when our kids are available to see us. And some of us want Sundays off because we go to church then. And if you force the government to always pick the person who's going to church over the person who wants to see their kids, that's a big deal.
Dan: Yeah.
Will: And I thought listening to the argument, this was one where the argument really mattered and where the SG did a really good job of both just-- it's a tough line of simultaneously communicating to the court what a big deal it would be to rule the way the petitioners wanted to and why they didn't have to, why they could get rid of the thing they thought was most problematic without going as far. I just thought it was a really-- I think I've listened to every-- I was trying to figure this out. I think I've listened to every Elizabeth Prelogar oral argument, and I thought this was the number one-- at least in terms of effectiveness. There are times the SG makes a passionate case to not overrule Roe v. Wade or whatever, which I'm sure some people think is really good. But just in terms of the delta of impressive lawyering, I thought this was way up there.
Dan: Well, I think SG got, what do you think, 80% of what they wanted, circumstances they were in?
Will: Yeah. And certainly given, I don't know, there's like what they wanted-- I think this would be viewed as a huge win if you gave this opinion to them beforehand.
Dan: Could have been much, much worse.
Will: Right. Exactly. That said, I was disappointed not to see any citation to an article by one of my favorite law professors and the voice of the intro to the show, David Currie, who has an article in the green bag called the Sunday Mails talking about the extensive controversy in Congress in the 19th century about the issue of carrying the mail on Sunday, where many of these issues are sort of replicated. There were these extensive establishment clause arguments that to not carry the mail on Sunday was wrong because it was kind of taking a position on what the day of rest was. It was the government like de facto declaring the Sabbath. But then, also extensive free exercise arguments on behalf of the postal workers that to make them carry the mail on Sunday was wrong let alone the fact that most of them had religious duties on Sunday.
I think Daniel Webster, like a ton of the great minds in the 19th century, weighed on this. It's like one of the big religious liberty questions of the age apparently still with us. And I was sort of sad not to see that context come in. But can't have everything-- [crosstalk]
Dan: The kind of thing where if this had been somehow like a contentious 6-3 with really long opinions, maybe that would have slipped in with one of these short, unanimous opinions trying to make everybody happy. You don't need to get into a bunch of stuff like that.
Will: I think if this has been given to Justice Gorsuch, I think it would have been in there.
Dan: He likes that stuff.
Will: He likes the historical context.
Dan: Okay. One other thing, not a ton to say about it, but the sort of issue is floating around, which is how much can you look at this-- basically like whether this makes other employees mad. And the court says a couple of things. First of all, if it just makes other employees mad because they don't like religious people, that doesn't count. That doesn't count. On the other hand, if it makes them mad for some other reason or causes some problem that impacts the business, then that's different.
Will: Right. And you could obviously imagine what if people start quitting because they don't want to carry the mail on Sundays? They're going to go work for FedEx where they don't have to or something. Maybe FedEx would make them but work for somebody who won't make them. [crosstalk] There you go. The more core thing that's unresolved, which just seems like it's the central question, is what if this is the problem that can be solved with a nontrivial, but not huge amount of money? Everybody agrees, if he can find people to cover his shifts, that you have to let him do that. You couldn't say like, "Oh, we don't allow shift swaps because they're annoying," or, "We think it's important that we take a turn." If they could kind of work it out, one of the accommodations you definitely have to do are like accommodating sort of shift swaps. What if it's the case that a dollar an hour would make shift swaps possible? There are a lot of people who would carry the mail on Sunday for a little bit more money. Not even like time and a half, but like a little bit more money, but who won't do it for zero more dollars. Then, does the government have to pay a dollar an hour to help accommodate him?
On the one hand, if you say yes, then what if the government has to pay $2 an hour? What if they have to pay $3 an hour? You can be imposing quite substantial costs on the business. On the other hand, if you say no, that's starting to get you back toward the de minimis standard. Like, any accommodation that results in expending money is a problem. And I just feel it's sort of central thing you have to confront, but it's hard to confront.
Dan: Yeah, the one thing you can say about the de minimis standard was at least it was like relatively clear rule. I mean, obviously what de minimis means is not totally self-defining, but basically as soon as you could point to an extra dollar an hour, it's over. That's clearly more than de minimis. But now, I guess this is going to require a little bit more, I don't know, contextual judgment, I'm not sure. How do you think courts are going to work this out? Is that a jury question?
Will: I don't think it's a jury-- no, I think this is in a way what the SG is worried about. So, I think there are a bunch of settled EEOC interpretations in lower court cases that the SG would like to keep in place. And now, some of them will be reconsidered, but we have the admonition that a lot of them are probably still going to be the same, but we don't exactly know. And I think talks about things like incentive pay a little bit and as I understand it, it's like if it's temporary incentive pay, if you could fix the problem by hiring a temporary person briefly, then you probably have to do that. But if it's like permanent incentive pay and it's a lot, then probably you don't have to do that. That was Hardison. And then obviously, there's a lot of points in between. So, I feel like the lower courts are now given the greenlight to reconsider these questions, but with the yellow light that a lot of the answers should come out the same.
Dan: Okay. So, we'll see whether the court has to-- I'm just trying to say something with lights, but I couldn't make it work.
Will: Yeah.
Dan: Do you think there will be kind of a follow-on Supreme Court case in the--[crosstalk]
Will: It's got to be.
Dan: -that kind of like raises the harder questions?
Will: Got to be the case that there will now be a post-Hardison circuit split where some circuit sort of bucks the pre-Hardison consensus or the pre-Groff consensus on something. I don't know the fact pattern well enough, but that's got to be what will happen one or more of these issues.
Dan: All right. Well, we should probably cut it there as you and I are both running out of time. Any final thoughts? All right, do you want to take us out?
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please keep emails and feedback which we read all of, even though we respond less of it, although we've done a better job lately, sometimes, please keep those coming.
Dan: And we'll say on that there actually are various pieces of emails and feedback that I've been meaning to get to we didn't get today, but hopefully next time we'll get to some of that. So yeah. Email pod@dividedargument.com. Voicemail number 314-649-3790. Website dividedargument.com for transcripts. store.dividedargument.com for merchandise.
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