We revisit the leak investigation, catch up on recent news, and then take a deep dive into the recent dispute in United States v. Texas over the scope of courts' power to vacate administrative rules and the related controversy over so-called "nationwide" injunctions.
We revisit the leak investigation, catch up on recent news, and then take a deep dive into the recent dispute in United States v. Texas (starting at 37:56) over the scope of courts' power to vacate administrative rules and the related controversy over so-called "nationwide" injunctions.
[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: Well, we are back. Will, it's been a couple of weeks. I think that's a good length of time, not too much complaints in the meantime. We've got some stuff to talk about. Not a lot of new news to talk about. I think we're going to catch up a little bit. There was an opinion that came out. Are we going to talk about that?
Will: Not really.
Dan: Okay, why not?
Will: It's too boring, even for me.
Dan: Wow. It's about sort of jurisdiction type stuff, right? It's about like equitable tolling and time limits. It's a case Arellano v. McDonough, which is when you calculate the date of disability compensation and reviewing that and stuff. [crosstalk]
Will: The question is whether the effective date default rule set forth in 38 U.S.C. 5110(a)(1) is subject to equitable tolling. The answer is no. It's unanimous.
Dan: Okay, that's it. It's not. Everybody agrees. Barrett opinion, she's not getting the great opinions yet. Mercifully short, 11 pages. Normally, I think talking about the opinions is our sweet spot because it's easy to do. The court gives us stuff and it tees us up and we don't have to spend hours tracking down the briefs.
Will: We're just going to need some opinions to work with.
Dan: Yeah, I think we're going to have to wait for some better ones. So, sorry about that. If you were eager for coverage of that, that's not going to happen. But maybe talk about some other things. There's maybe some follow-up from last time.
Will: And the proof that it's very hard to time these things, immediately after we recorded, before we released our podcast on the Marshal investigation, and I think you remember we spent a while debating about one of the Justices-- were the Justices among the personnel that were interviewed by the Marshal or not and were they completely ignored, we were not the only ones to this question. The next day after the long formal-looking press release, the Supreme Court issued another press release called Statement from Marshal Gail A. Curley, which says, "During the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe that it was necessary to ask the Justices to sign sworn affidavits." So, I don't quite know-- I mean, I think everybody can be irritated by this. The Justices are sort of included, but really not really included.
Dan: Yeah, notice she doesn't even say, "I asked them whether they did it." She says she had conversations with them and that she followed leads and that they weren't implicated.
Will: Right. She says that they answered her questions. She asked at least--[crosstalk]
Dan: We don't know what those questions were. Those questions could have been, "Do you think your clerks did this? Did this clerk say anything suspicious?" I thought that omission was telling.
Will: I mean, I assume she asked them even like, "Do you have any idea who did it?", that fairly includes the possibility they did it.
Dan: Maybe. But I don't know.
Will: I don't think the statement satisfied anybody who thought the Justices did not get sufficient scrutiny.
Dan: Yeah. I think it's split the difference between our opinions on the matter. Certainly, the Justices were not subject to the same level of scrutiny as other people in the building.
Will: Sure.
Dan: That’s fair to say.
Will: They were not asked to sign affidavits. She does say that she didn't think any credible lead implicated Justices or their spouses. We don't know why.
Dan: Yeah, but how would they know? Were there really credible leads that implicated other people? We don't know. The report was like, "Look, there's a lot of copies of this document floating around. Could have been anybody." This goes back to something we talked about. Maybe they really do have a strong suspicion as to who it was and they just can't pin it down definitively. But I don't know.
Will: Now, the question on which we received a ton of reader email was the far more important question of what "no mere misguided attempt at protest" means. Tons of email about that very welcome. I especially liked several emails that we got that tried to split the difference on that as well and established that there's a difference between 'mere' and 'merely', and that "no mere [chuckles] misconduct attempted protest," could mean it's not a misconduct protest, but "not merely," that is great. I put this up for a poll on Twitter, in which you prevailed 62.1% to 37.9%.
Dan: It's when like Elon Musk puts up the polls. It's like, "Hey, should I step down as CEO of Twitter?" And people are like, "Yes."
Will: He stated that he would abide the results of his poll, and I did not state that I would abide by the results of my poll. I just wanted to know the answer. I then pulled the same question for "no mere mortal" The example many people gave us where that person might be a nonmortal. My side of mere won that one 75.8% to 24.2%. So, I think the consensus is it does depend on context.
Dan: The "mere mortal" one, another reader, another listener wrote in has a way to explain that I think it's consistent with my way of thinking about it. It's too deep into the linguistics to be worth talking about, but I feel better about that and I think you should. But then, you took the position with me, we were talking about this privately, and you were like, well, you would be right if 90% of people because what matters is if 40% of the people think it means the other thing, then we can't ascribe that to the Justices.
Will: I think one question we had was, are the Justices saying they think it was a misguided attempt to protest? They could well have used this phrase for the reasons I would have used the phrase, even though a small majority of the audience thought about the other thing. I guess it's a question we're trying to figure out the original public meaning of this opinion or the original intent of this opinion. But I feel vindicated that the Justices did not necessarily mean to state that it was a protest.
Dan: If 60% of people think that's the way to read it, and we think all nine Justices had some input into this which may or may not be true, the odds that some of them believe that is overwhelmingly like--[crosstalk]
Will: I do think it's probably the case that some of them believe that and some of them don't, and that this phrase was something we could all live with. [crosstalk]
Dan: If I didn't believe it, I wouldn't have been able to live with it. I would have been like, "You are implying this is true." I would have said, "May have been, but it also was." Okay, enough on that. A hook for something else that came out. We are told in a report by Bob Barnes and Ann Marimow, the Washington Post, that, "The Supreme Court Justices discussed, but did not agree on a code of conduct." There have been some internal discussions inside the court about whether to adopt a special code of ethics for the Justices. This is something the court has been pretty heavily criticized for not doing. The legal counsel at the court apparently prepared a working document of issues, not necessarily a draft code, but just something that covered stuff that they might want to include. But it sounds like that's stalled or at least not clearly going somewhere right now, and we don't really know. Is there some particular disagreement? Don't really know the details.
Will: Right. I couldn't tell. Could you tell? Did they disagree or did they just not agree? Because sometimes I've been at committee meetings, something is brought up and people each say their piece. It's not like we even get to the point where I want the code of ethics to say, you don't have to recuse from cases involving your spouse's text messages. I adamantly don't so much as just be, "Well, all right. We'll move on."
Dan: Yeah. I didn't take from the piece a clear answer that they had disagreed. It sounds like this has been on the table and hasn't been resolved. I think that's not going to make a lot of people happy. There are a lot of people who think they should do this. You probably think they shouldn't, right?
Will: That's definitely the-- [crosstalk]
Dan: That would be consistent with their brand, right?
Will: [laughs] I'm skeptical, I guess. Although if having a code of ethics that largely captured their own views of what they're doing anyway would cause people have a lot more confidence in the court, then I'm all for it.
Dan: [crosstalk] -right?
Will: Well, I'm not sure. I'm all for like harmless placebo stuff if it would help. I worry it would not help and maybe even hurt because I assume one question with the code ethics would be who enforces it? The court does have a very long tradition that I'd be shocked to see them abandon that every Justice decides their own ethical questions and the other Justices have no role in it.
Dan: Yeah.
Will: I take it that would cause many people to say the code of ethics is a sham if it contains some principles, but then Justice Thomas gets to decide if they're implicated.
Dan: Maybe at least if they've told us, "This is what we really believe to be true and this is what we're going to stick to."
Will: Yeah, but if it's going to be ambiguous and then-- I'm not necessarily against it, but I'm not quite sure what I would--
Dan: Yeah.
Will: One topic that came up for Courts of Appeals recently that you see sometimes is the question of what groups the Justices can be a part of and associate with and talk with. So, I would imagine, for instance. So, I would imagine--
Dan: There was a big proposal to actually say federal judges couldn't be part of the Federalist Society and ACS.
Will: Right. But could be part of the American Bar Association, which is a much more partisan organization than either ACS or the Federalist Society, ironically. I take it you'd have to address those or you have to decide--[crosstalk]
Dan: I'm not going to go down that rabbit hole. I'm withholding comment on that.
Will: Dan, I'm ready to do the Fed Sec episode whenever you are.
Dan: Yeah. We'll do that.
Will: Okay. That would be an awkward question that I could imagine some of the Justices thinking, like, "If we're going to have a code, we should talk about that." I can imagine some of the Justices thinking, "I'm not going to stop going to the [crosstalk] National Convention where I got cheered on by--" [crosstalk]
Dan: I guess I would assume they all would think that they can do that. That's my intuition.
Will: Yeah, that'd be great. It's true, but I'm not sure it's true.
Dan: Yeah. One other interesting thing to note about this. How do we know about this, by the way?
Will: The code of ethics?
Dan: Well, yeah, the fact that they've had these discussions.
Will: Are you saying it's a leak?
Dan: It's a leak. It's another leak.
Will: [laughs]
Dan: Not clear who leaked it. Maybe somebody who's a Justice. Presumably other people in the building know about it. But it's funny. Despite having the Marshal going to town, leading an investigation, leaks continue.
Will: Well, look, talk about what's going on at the court, we had like Maskgate and various statements about like, who asked who to wear a mask and why. Those are unfortunate too. But that does do happen.
Dan: This is a little bit more--
Will: A little bit, it's not like the Washington Post published the email or whatever it is from [unintelligible [00:11:10] or something. That would be more--
Dan: Yeah. Although my guess is that leaks like that happen less just because they're more likely to produce fingerprints. To the extent that there are people willing to talk, some of those folks might be willing to show shared documents. But the jeopardy you'd be in for doing that is way higher. It's a lot harder to trace the fact that maybe you see a reporter at a party and you have a conversation with them versus like taking a document leaving a paper trail.
Will: I think it's also just a sense that's a much bigger norm violation. It's both highly likely to have been caught. I think if the Justices learned that some Justice had mentioned casually that they were debating a little about the code of ethics, that wouldn't necessarily be as big a scandal as if they learned--[crosstalk]
Dan: Yeah. Justice Kagan did in testimony before Congress while back sort of said the Chief Justice is considering that issue. I mean, they have voluntarily disclosed some stuff about what's going on at that. It's interesting.
Will: You're pro code of ethics, right?
Dan: I'm sort of with you that maybe I believe more that it wouldn't hurt. There's clearly some stuff that they all agree they shouldn't be doing and probably aren't doing.
Will: Something that's worth that Dan gets credit for?
Dan: Yeah. I think that beyond that, I'd want to think more about the specifics. I mean if they released one that was so limited, it was like the Justices shall not do things that call the judiciary to disrepute and didn't really restrict them in any way financially, I might say, "Look, the understanding you've produced there is so vague that it's going to just reinforce concerns that you guys don't care." I don't know, it just seems like an easy win for them. There are a lot of things that reasons it needs to be different for them because recusals on the court have much bigger consequences than recusal on the Court of Appeals. You can't slot somebody else in. As Justice Scalia said in his recusal opinion about the Dick Cheney a long time ago, he said, "Look, a recusal is the same thing as a vote to affirm."
Will: Right.
Dan: Because if it's 5-4 to reverse once you recuse, then it becomes evenly-- if one of the people in the majority recuses, it becomes evenly divided court and the judgment is affirmed. So, that needs to be different. Also, they're dignitaries in a way that Court of Appeals judges aren't. People from foreign leaders and stuff are going to come see them and give them gifts and stuff, and that's understandable. So, it does need to be different. I do think that there is a lot of concern about-- people have a lot of concern, justified or not, about money, finances. I think doing what you can to dispel that little bit. In relation to this, there was a thing like a week or two ago where people were-- was it New York Times? I can't remember the story now, but about the chief Justice's wife who used to be a lawyer, now is a legal recruiter and so she gets paid these big bonuses for recruiting lawyers to other firms and people saying this creates some concern. It's a case where I don't think it creates any actual-- I don't have any real fear that it's being used to manipulate cases. I do see how some people, it would be like, "Wow, these firms have business before the court and they're also paying the Chief Justice's wife hundreds of thousands of dollars," I can see it. I don't think you see it.
Will: Although it's all the forms. I did think that was ridiculous, but this raises-- for lower courts, we often talk about the appearance of impropriety.
Dan: Yeah.
Will: I think the judicial conduct phrase is like when you're whatever, impartiality could reasonably be questioned. I think there's just this problem that the Supreme Court exists in a very different social and media environment. You could think they need to hold a much higher standard because there's going to be so much more focus on them, people want to ask so much more questions about them. Or you could think our media environment is so hopelessly partisan or corrupted that everything they do can be questioned, and we just got to learn and not worry about that. And I think that’s a real problem.
Dan: We have to think about what's reasonable. I mean, I could imagine a hypo where this, let's say there's a case with a huge money, a firm with a huge money case before the court, and they hire 30 recruits from Jane Roberts's consulting firm and netting her $5 million. The Chief has a lot of money, so I'm less worried about him.
Will: Right.
Dan: He wears a Patek Philippe watch, did you know that?
Will: I don't know what that is.
Dan: It's like maybe the leading watch company, very prestigious, very rare, very expensive. His is like a $30,000 watch. It's a cool watch. The watch people say, "This is a watch that shows this guy knows a bit about watches," and is engaging in a big way. I don't know whether he's really a watch guy or not.
Will: I always lose my watches. [chuckles]
Dan: Then, you should not get a Patek.
Will: I buy Timex.
Dan: Okay.
Will: Yeah. Well, we don't even know, for instance, and this may go to your point, does he know who her clients are, or does she keep that secret? How does that affect it? You mentioned the Scalia opinion. That actually made me wonder, one, maybe transparency reform. I feel like the Justices don't very often write anything or say anything publicly about their decisions to recuse or not to recuse [crosstalk] cases. Maybe that's because Justice Scalia got such grief for his opinion about duck hunting. But I like that opinion, and I wonder if that-- if I had a little reform might be--
Dan: Encouraging at least those statements.
Will: [crosstalk] -Thomas can write us two paragraphs of why he's not recusing this case or whatever, if that were more normal, just to give us a little sense of what's going on. Maybe the answer is they would just nitpick those opinions. So, it's--[crosstalk]
Dan: Are there situations where we think the Justices have secret reasons to recuse? Because we don't always know. Usually, I think we can back it out, but are there situations where they would want to keep the reason confidential but still recuse?
Will: I think all the recusals I can think of, people either have figured it out, "Okay, this stock or his brother works here," or Ketanji Brown Jackson was on the Harvard Board of Overseers. It's more the reasons not to recuse. What was interesting about the Scalia opinion, it was a call to recuse, and he was going to not recuse. But the calls were enough of a thing that he thought he would actually just explain why he wasn't recusing with a bunch of examples in history. That's a useful-- you can't do that in every case, obviously.
Dan: Yeah. But you could release, like, one paragraph.
Will: When it's become a thing. If people are obsessed with the Ginni Thomas thing, Justice Thomas could release an opinion about how he sees this and what he's doing.
Dan: Yeah. One thing, it was linked in the LinkedIn story, which I had never seen and was not aware of, was there's this 1993 statement by the court. Take a look at this. Statement of recusal policy, and they talk about situations where they have spouses, children, or other relatives who may be practicing attorneys, and they wanted to lay out-- and they didn't all sign this. Interesting. They wanted to lay out what the principles they saw that should govern this, say, "When the covered lawyer has participated in the case at an earlier stage of litigation, or when the covered lawyer is a partner in the firm appeared before us." This is your son is a partner in the firm, they're not working on the case, but their firm has a case before the court, or they did something in district court, and the case is before the court. What's the takeaway from that?
Will: I think I knew about that once. I've forgotten about it. That’s also-- [crosstalk]
Dan: They say, "We're not going to go beyond the requirements of--" there is recusal statute 28 Section 455. They say, "We're not going to go beyond that. We don't think it would serve the public interest to go beyond it out of an excess of caution whenever relative is a partner in the firm or acted as a lawyer at an earlier stage."
Will: Right. I do think that was useful in that they seem to be on the same page. It's an ambiguous case. It's a case that borders a case where the statute requires recusal. To know that there's cross partisan agreement on this rule, and that if you see some weird case where-- I don't know. I don't even know who the relativism question might have been for the Justices try to back that out. [crosstalk]
Dan: Who didn't sign? It looks like Souter didn't sign-- this was 1993, and so Breyer was not yet on the court. Ginsburg replaced Justice White, Breyer replaced Justice Blackman, and so Justice Blackman would have still been on the court at that point.
Will: The first sentence says the people who are signing are people who have spouses, children's, other relatives who are or may become practicing attorneys. So, it might be--
Dan: Yeah. So, maybe there's no--
Will: I think Souter didn't have anybody in that category yet. I don't know about--[crosstalk]
Dan: A solitary man.
Will: Yeah. For instance, you could imagine even without a code of conduct, you could imagine the court releasing some joint statement about spouses, like what principles they use to govern activity to spouses. [crosstalk]
Dan: That has come up. I mean, that's been coming up a lot with Justice Thomas.
Will: Right. Again, there's a statute that lists a bunch of like, if your spouse is a material witness in the proceeding or this or this, you could imagine releasing a statement saying, "We're going to follow the statute, but we're not going to go further than that," or try to maintain a certain amount of Chinese wall about what's going on in our house or whatever. Yeah, it's kind of a nice precedent.
Dan: Well, we'll see what happens there. Given the court is not super responsive to what people want in terms of how it conducts itself internally and its transparency, I think it's quite likely we just won't see anything and we won't hear anything more about this, but maybe they'll come up with something.
Will: We just got way more information about the Marshal investigation than William Rehnquist ever would've given us. [laughs]
Dan: I know, but every time they do it's pulling teeth. They always come back, and it's like a little too vague, and then that gets pushed back.
Will: That's why I think a letter saying some things that's not a code of conduct would be totally on brand for them. It'd be like an attempt to be responsive, but not the thing people actually want.
Dan: Yeah. Although a letter that's as detailed as this 1993 letter, I think, would be quite good.
Will: I agree. I just think it was [crosstalk] out.
Dan: I was surprised that existed.
Will: It would also not play well. I think it would be substantively good.
Dan: Nothing they do will play well. Some things will play better than other things. Okay, watch this space for more potential ethics codes. Maybe you're more sanguine about that possibility than I am. We should go on to talk about actual law stuff. I had a quick thing I wanted to talk about, which is yesterday, I announced, but haven't yet put an [unintelligible 00:22:19] in, so keep an eye on for that. New article I have with my friend, Alan Trammell, about jurisdiction stripping. You and I talked a little bit about this. I'm part of this court reform conversation, and there's a lot of people who say one way we could rein in the court or people could reign in a court they disagree with is by stripping the court's jurisdiction over some set of issues. This is the way to disempower the court.
Our piece, it's not so much about what the right answer is legally. It's more saying, "Look, as a practical strategy, we don't think this is super likely to work. The court has all these ways it could try to get around the jurisdiction strip. There's other stuff that Congress might want to do that is going to need the cooperation of the court." AOC says Congress should pass a law guaranteeing abortion and then strip the court of jurisdiction to consider its constitutionality. Our view is that's not going to work because to have that law effective, you need a court that can come in and be overturning state criminal convictions. But if you've said the court can't do that or limited their authority, they're going to be like, "No, not going to do it." That's just one example.
Will: Jurisdiction is not like a magic word that just causes the courts to do whatever you want when you utter order the magic word. Like, we say jurisdiction, and they reverse Dobbs. If your problem is-- yeah, I agree. I also agree, there was a tweet about your article by Rick Pildes that both said he agreed with the article without having read it, which I love, and that the President's question on the Supreme Court report he thought made some similar observations, although I think maybe less [unintelligible 00:23:53] and focused fashion than your article, Will.
Dan: Yeah, there's a 10- to 15-page section in there that talks about some of these things. One of the things being the unpredictability of how state courts would respond in the world if you kick federal courts out of the picture.
Will: Where is this article coming out?
Dan: It's under submission. It's going to be out-- submitted to some journals in the next week or so. So, keep an eye on that. I'm excited about it. It's continuing a big conversation I've now written about a bunch of different kinds of court form. This is the first time I've written about this particular one. There's some real heavy hitter people who are on the other side of that conversation that I'm really looking forward to engaging with. People like Sam Moyn, Ryan Doerfler, Chris Sprigman, who's maybe the biggest advocate of this, who've written some really, really interesting things I encourage people to read. So, court reform, it's not going to happen super soon. Kevin McCarthy doesn't seem super interested, but the conversation, I think, is going to continue for some time.
One other thing, I didn't know a ton about the nitty-gritty constitutional doctrine and the different views about how much power Congress has to limit the Supreme Court's jurisdiction. You have an interesting view on that, kind of like a textualist view. Can you just explain that quickly?
Will: I think Congress has a great deal of power to limit the lower federal court's jurisdiction for almost any reason. For the Supreme Court's jurisdiction--[crosstalk]
Dan: [crosstalk] -controversial.
Will: That's relatively uncontroversial. The Supreme Court's jurisdiction, which is more controversial, my view is just to follow the constitutional text, which says Congress can make exceptions to the Supreme Court's appellate jurisdiction, which both means it's harder to regulate the original jurisdiction and it means that I think you can take away as much of the Supreme Court's jurisdiction as is consistent with the word "exception." Which I think means at a minimum, taking away 49.9% of the Supreme Court's jurisdiction would be okay because the bigger part is left over. You can make an argument for exception being bigger than that, which I'm open to, but you just want to know, is it an exception?
Dan: You put this out briefly in your Minnesota Law Review article talking about your experience as a commissioner on the Supreme Court commission that Biden created. I don't have a strong view on the underlying legal issues. I don't love that argument just because it seems not clearly consistent with how we use language. I was talking about this, and the example I gave you was if we had a school and it was 51% male and 49% female, I don't know if you would say, as a matter of ordinary language, "Women are the exception at my law school." Maybe, but they're pretty close to half. It's hard to say that they're the exception. There's some sense that an exception is a smaller part of a bigger whole.
Will: Smaller, but if you said, what's the-- If I said, "Look, the median student at my law school is a male," that would be true. You'd start to say, "Well, look, at some point, you really can't say that anymore." I'd say, "Yeah, at some point, you can't say it anymore." I guess I was asking what is the permissible scope of interpretation? Because the question is not just in the abstract what if this word means, but what is Congress allowed to think the word means? [crosstalk]
Dan: From another side, you could just say, an exception is just-- we say, "I'm going to make an exception," and that means, "I'm going to take something away." And that could be more, it could be less. What does it even mean to count the percentage of Supreme Court's jurisdiction, like number of cases, amount of--
Will: Well, to be clear, it's also, I think it's exceptions, plural. One way to think of it is, if I said, "Look, this is the rule for students at school," well, you can make some exceptions, Dan. You start making exceptions and more exceptions and more exceptions, [crosstalk] at what point do I come to you and say, "These are no longer exceptions"?
Dan: Exception units have to add up to 49.
Will: I think it's possible that more than 50 could still be exceptions because you'd still say, "Well, every exception is special." But I just think it's easy to say when the majority is still not an exception. That's an easy case.
Dan: Well, we don't really take a view on that. We just say, "Look, here's the different views. Here's what a court might think itself able to do," like practically. But I thought that was interesting. More than that, maybe we'll come back to that at some point. I will share that piece publicly sometime soon. But I think we should actually talk about the thing we were supposed to talk about.
Will: Okay. Also, kind of jurisdiction.
Dan: Yeah. Not breaking news, but I want to thank a listener, a VIP listener, who we're going to be talking about, which is Mila Sohoni of San Diego School of Law. She said, "Did I miss an episode, or did you guys skip a conversation about the colloquy at oral argument in the United States v. Texas concerning universal vacatur?" Because it's the kind of thing that's in our wheelhouse, and then we didn't do it. Now, I feel bad, we didn't do that.
Will: A two-and-a-half-month-old oral argument on a technical question of federal jurisdiction on which multiple academics in the opposite science. That is our wheelhouse.
Dan: Yeah. That is as cold a take as it's going to get. I think our goal with the show is to, over the course of the hour, alienate more and more listeners by getting more boring. So, we started off with some stuff about big picture Supreme Court publicity is, of course, too political. Over the course of the hour, we get narrower and narrower.
Will: Narrow?
Dan: So, let's do it.
Will: This goes to the fundamental question of the scope of judicial power, Dan.
Dan: Maybe more technical, how about that?
Will: Okay.
Dan: Is that fair?
Will: Yeah. So, I--[crosstalk]
Dan: We didn't talk about this case really at all. Do you mind-- have you noticed how I always just punt it to you to do that? I'm the color commentator and you're the play by play. So, give me the play by play on this case.
Will: I was pretty sure I was the color commentator in the show. [laughs]
Dan: Oh, really? Well, we both do color commentary but I punt the-- [crosstalk]
Will: All right, before we get to the case, let's just say there's a very broad debate in the literature among some of the judges, Justices, and Congress about something that we generally call nationwide or national injunctions.
Dan: Or universal.
Will: Or universal junctions. My friend and coauthor, Sam Bray, thinks national junction is the right terminology, so I'm trying to use that. But nationwide injunction is what I grew up on. Universal junction is Howard Wasserman. Which is when you sue, especially the federal government, and you're in district court, and the district court thinks you're right, the law is unconstitutional, the practice is wrong, what kind of relief does it give you? It has become more and more and more and more common for the district court to say to the government, like, "Stop doing this anywhere."
Dan: Don't follow this policy at all. You cannot follow this policy.
Will: "Don't just stop doing it to the plaintiffs. Don't just stop doing it in my district or in my state. Just stop doing it." There is a logical argument for it. The constitution governs the whole country. This is what the constitution means. Ergo, in the whole country, you should do what I just said the constitution means. On the other hand, there is a practical problem that it means that any district judge in the country, and it is more and more common for litigants to be able to figure out what district court they're going to be in front of, can immediately make a rule that has nationwide effect. You could potentially get district courts having nationwide injunctions that conflict, and then it forces the court of appeals to quickly step in, decide whether it's go forward, and so on.
I feel the discussion we're about to have is in the shadow of that debate. The leading articles on it are by Mila Sohoni, who generally defends the availability of nationwide injunctions in some cases.
Dan: Has done so through some originalist-friendly arguments. Looking at history, saying this is actually a thing that has happened. It's not just this crazy new innovation all of a sudden, but there's precedent for this and so forth.
Will: Yeah. On the other hand, Notre Dame Law Professor, Sam Bray, who's on the other side also making some kind of formalist and originalist arguments. I think both of them agree in some ways. You have to think about this tracing back the history of equity and thinking about how various equitable principles could be translated today.
Dan: So, he has this article, Multiple Chancellors. The idea being we've had this transformation in the way equity works in the old English system, you had this law equity divide, and if the law side was not working out for you went and talked to the chancellor who could issue an order. Now, every federal judge has equity powers and is a chancellor. And so, what do we do about this?
Will: In a way that the question didn't arise and there's just one chancellor, and this has a mirror, which is-- one of the reasons I think this question has evaded Supreme Court resolution for so long is, in a way, once the Supreme Court takes the case, it rarely matters. Everybody now accepts that once they win or lose in the Supreme Court, that's going to be the rule nationwide anyway. [crosstalk]
Dan: There's no possibility of a circuit split.
Will: Even if we formally quibble whether that has to be true or not, practically, there's no point in trying to fight a rearguard action. I think the term I clerked, the Bush administration raised this question about nationwide injunctions, but the court ended up resolving the case on some of the grounds, and so it just never mattered. The Supreme Court is the new chancellor. But then, what's the district court? [chuckles]
Dan: Yeah. Also, the thing that's tricky about it's an issue where the partisan valence there is one, but it flips.
Will: Yeah.
Dan: During the Trump administration, I think Liberals, Dems wanted this to be more possible to go to district courts in Washington State or elsewhere in California and get national injunctions enjoining Trump policies. Now, Republicans are more enthusiastic about being able to go down to Texas, file in one of these single-judge divisions, and get a guaranteed, hard, conservative judge who has a reputation for striking down everything Biden administration wants to do. What am I supposed to think about it right now? What are my marching orders?
Will: Well, do you like President Biden?
Dan: I mean, in a lot of ways.
Will: I think you're supposed to be against nationwide junctions right now because they are being used to stop the student loan program.
Dan: Okay.
Will: I'll let you know next year if you're--[crosstalk]
Dan: Okay.
Will: When Bray was writing this article--
Dan: Well, give me till January 2025.
Will: Yeah. He started writing the article during the Obama administration. I remember he was getting cheered on by people who were upset about the suit against DACA and DAPA, where the Fifth Circuit issued that said nationwide injunctions are okay. The Trump administration comes in and a nationwide injunction goes into place in Trump v. Hawaii, and other people start to have the other view. I was at a meeting of various high-powered conservative lawyers where somebody was complaining to me about this, was like, "I read Bray's arguments, and they seem right," but can't we put this on ice until the--
[laughter]
Dan: They didn’t invite me to that meeting.
Will: I think it's fair to say the Supreme Court seems to be avoiding this bigger issue. Some of the Justices like Justice Thomas and Justice Gorsuch have said, "We think these are inappropriate," even though they have somehow participated in granting them before that. But that's a big question. The court's obviously aware of it, and I assume that some set of the Justices are not comfortable with totally greenlighting them and not comfortable with redlighting them.
Dan: Stepping back for one second, putting aside whose ox is gored, which does change year to year, would you say that the conservative, originalist-- being against them maybe has more valence on the conservative side because of views about the departmentalism, maybe you could talk about that a little bit.
Will: Sure, yeah. I do think one set of people who are against them are people who are originalist, departmentalist skeptics of judicial supremacy, who very much resist the syllogism of, "A court said this is what the Constitution means. Therefore, this is what the Constitution means." Which is like the key step in the syllogism to get from, "I have ruled. Therefore, the ruling is true nationwide." I think it's fair to say for methodologically, that's an especially weak position on any kind of originalist or pre-1950s historical grounds. So, there's a set of committed departmentalists who are skeptical for that reason.
Dan: You are more on that in that camp, right? You're more departmentalist.
Will: Very much. Right. I'm very much in that camp. That said, there are also people like Nick Bagley, who's a relatively liberal administrative law professor, who's skeptical of nationwide junctions, I think, stemming from other comments about a sense of how the administrative process works smoothly and when it makes sense for courts to get involved and so on. But in the academy, I do think there's a way in which the people for whom judicial supremacy is second nature will be like, "Well, of course we'd wish you nationwide relief, because I've said this is what the Constitution means, and the Constitution is nationwide." People who don't have that view of the judges are more skeptical.
Dan: Which more generally is a set of views that we should expect to be flipping ideologically over time.
Will: Yeah. We're certainly seeing-- you mentioned already Sam Moyn and Ryan Doerfler who are nonjudicial, supremacist progressives. There's a new book project from Nikolas Bowie and Daphna Renan that's also adopting some variation on that kind of attitude. Those themselves could change. There's nothing inherently conservative about departmentalism or inherently liberal about judicial supremacy. Like in the 1860s, the views were flipped.
Dan: Yeah. That's just background. That's just background before we can even talk about the actual legal issue we're going to talk about.
Will: Right. That's all background to one of many cases at the Supreme Court, one of which is called, like every other case at the Supreme Court, United States v. Texas, which might just be a way of summarizing the state of law these days.
Dan: Until 2025 or 2029.
Will: This United States v. Texas is about a lawsuit by the States against the Department of Homeland Security for how it is enforcing civil immigration law, the merits of which I don't want to get into, I don't think we need to. But I think of it as a bonkers version of the original Texas DACA/DAPA lawsuit. The Obama administration had the Dreamer program that was like a set of immigration priorities. There were technical debates about whether that crossed the line or not. This is a much more aggressive clone or cousin of the kinds of arguments against executive discretionary back then, complaints that the administration is not deporting enough people and not deporting the people Texas wants them to deport.
Dan: That's the big thing going on.
Will: That’s the question.
Dan: But that's not really what we're talking about.
Will: Right. The two of the big questions the court granted cert on, however, have the merits, but they also have standing. Whether the States have standing to challenge the enforcement guidelines, which is a question we talk about whenever we talk about the student loan cases as well, present a question of when can States have standing to sue the federal government? We can put that to one side. The other question, which is this big procedural question that's related to the nationwide injunctions, is whether a federal court can strike down, vacate-- I guess as the APA would say, can vacate a federal government action nationwide. This is not quite--
Dan: Yeah, including rule. Like a rule administration, administrative agency issues.
Will: Right. Whether these are a rule, I think, is itself one of the substantive questions. But the executive branch says, "This is what we're going to do." And then, the district court says, "No, you're not going to do it, and I am vacating the whole thing. So, you can't do it here. You can't do it to these plaintiffs. You can't do it in my state. You can't do it in my district. You can do it anywhere because I've made it poof."
Dan: Right. The rule is literally taken off the books.
Will: This is kind of a nationwide injunction. It's not an injunction in the technical sense. You can't be held in contempt for violating it, but in the other sense, it's like a nation--[crosstalk]
Dan: They can't enforce the rule.
Will: You can't do it anymore. It's a nationwide rule that you have to stop doing this thing that you were doing before. Unsurprisingly, some of the same people who are on opposite sides of the unresolved debate about nationwide injunctions pour into debate, "Well, what about the APA?" You might imagine the APA is a little bit different.
Dan: Administrative Procedure Act.
Will: Sorry, thank you.
Dan: For the uninformed.
Will: The uninformed stopped listening a while ago, Dan.
[chuckles]
Dan: The informed became uninformed by this point in the show.
Will: So, can district courts vacate a rule nationwide under the Administrative Procedure Act? That is one of the questions that the court had to answer in this case.
Dan: And the longstanding answer has been yes. That's just the way it's worked for a long time.
Will: There's a leading DC circuit opinion, which is also cited a lot in the nationwide injunction cases, that says the answer is yes. That says, "Yes. When we decide that the rule is unlawful, we set it aside in the language of the APA," Administrative Procedure Act. That's the status quo in the DC. Circuit. I think people raised their eyebrows when the Solicitor General, Elizabeth Prelogar, decided to make this one of the arguments in the case, to say, "Well, okay, yeah. The DC Circuit has been doing that for a long time. Justices who think nationwide junctions are not okay should also think this is not okay," and relied heavily on scholarship by John Harrison, a really smart professor at University of Virginia, who's written about why this is not what the APA permits. But descriptively, it's of an aggressive argument, and it raised a lot of eyebrows at the Supreme Court when she raised it.
Dan: Yeah. Just again, ideologically, what is the valence of this issue? Right now, we have the Democratic administration pushing this.
Will: Right.
Dan: Why? Because I was thinking about this, and right now it seems like where we are is that the Conservative Project is interested in pushing back on the administrative state using courts, right?
Will: Yeah.
Dan: So, from that perspective, you would like this. You would want courts to be able to strike down [crosstalk] rules.
Will: Conservative--[crosstalk] Yeah. I think these arguments against judicial power are traditionally coded as conservative, traditionally more often made by conservatives. But at the moment, they help the Biden administration because they help whoever controls the executive branch. So, maybe already you see a chance for maybe a cross-ideological victory, like a chance to say, "Look, it would help my client, the President, if we could get courts to be more restrained." And there's these arguments that people with more conservative interpretive principles might be likely to accept. Legal scholars, they are more likely to think are really onto something. So, maybe I'll try for that. Especially if you already have multiple Justices who are against nationwide injunctions in general, you think this is kind of like them. You might think, "Look, to win this case, I need Thomas or Gorsuch's vote and maybe this is a way to get their vote." So, it is interesting both shifting politics and politics depending on the level of distraction that you believe in.
Dan: Yeah.
Will: At the Supreme Court, as far as I can tell, the biggest divide that emerged instead was not exactly liberal versus conservative, but was what Justice Kagan called the DC circuit mafia. Chief Justice Roberts, I think, was the first one to say that, "The SG's position on vacatur was fairly radical, inconsistent with what those of us who were on the DC circuit five times before breakfast. That's what you do in an APA case. And all of a sudden you're telling us you can't do it?" She said, "Yup, that's my view. Here's why." "And he just said, "Wow." And then, Justice Kavanaugh got in on the mix and started listing all of the judges he'd served with, who he thought were really respectable, who had done this, and suggested she was like impugning the honor of Stephen Williams and David Tatel's-
[laughter]
Will: -some long list of DC circuit luminaries. And then, Ketanji Brown Jackson also got in, also briefly in the DC circuit and who had written as a district court judge, one of the leading judicial supremacy pro nationwide injunction opinions. To them, this is second nature. "This is what we do in the DC circuit, is we make law for the whole country. That's why we're the second highest court in the land." The Justices not on the DC circuit didn't seem to have quite the same view that anything the DC circuit has done for 30 years must be right.
Dan: Yeah, Justice Gorsuch, did he seem the most willing to accept this argument in your opinion, Will?
Will: I think, yeah. I don't know if Justice Thomas spoke up much on this, but I think Justice Gorsuch was the one who seemed the most interested and I would expect him and Justice Thomas to be the two most likely to agree. Just to say, we started with the nationwide injunction background. You could think nationwide injunctions are generally prohibited by principles of equity, but the APA is a special case where Congress has said nationwide junctions are okay because it has this language about setting aside the rule. Or, I guess the opposite, you could think like, "Look, I don't have a view of an issue on the junctions in general, but I disagree about what the APA says. I think the APA doesn't allow these," but the background assumptions of what the courts can do seem to be for a lot of people pouring into their views about the APA.
Dan: And it's going to be hard to do justice to this issue but one thing to note is there are some these special statutes which say, "For this particular agency action, you have this--," form of basically appellate review, "--you can run straight to the DC circuit to get review of the rule." I think, as I understand, part of the argument that the SG is making is, "Well, that's the way it works sometimes and that's fine, but that has crept out and now we think that we're supposed to do that in every case where someone is challenging a rule and that's not right.
Will: I was trying to trace this and my sense is that we got to this assumption-- I think everybody agrees that when the APA was enacted, like nationwide vacatur of rules was not a common thing, people disagree about whether it's like forbidden by the text or not, or unthinkable, but everybody agrees it didn't happen a lot. And now--[crosstalk]
Dan: Mila Sohoni has some work on this that-- [crosstalk]
Will: I'm not saying it never happened, but everybody agrees that it didn't happen a lot, and now it happens a lot. One question is, what changed? And it's possible the one thing that changed is just the DC Circuit got so used to being the Court of Appeals for Administrative Law and when there's only one Court of Appeals, then it's like the Supreme Court, you may as well treat it as a nationwide rule.
Dan: Yeah, and because there are some situations where the DC Circuit does have exclusive jurisdiction and others where they don't.
Will: Yes. Do you have a view about this? I mean, I've been talking for a long time. Do you have a view?
Dan: To be honest, I am not an ad law expert. It's one that-- interestingly--
Will: Ad law experts messed everything up, Dan. That's the problem.
Dan: Are you going to take that view? I took the course in law school and it's a set of topics that felt more alien to me, felt less intuitive to me than constitutional law, constitutional theory. I feel with con law, I have a lot of instincts that map on to things that are real. With administrative law, I really am not sure. I take a lot of cues from frequent corrector to the show, Ron Levin, who has also written about this. He has a piece that I think he's releasing to the world at some point soon, making arguments for why this is not the right way to interpret the APA. He takes a more pragmatic view about-- "Look, the APA has evolved in this way, it's not really and hasn't been interpreted by courts in this overly literalist manner," which I think is descriptively true. That's not how courts have used it for many decades, here's how this is appropriate and consistent with long standing practice under the APA. Whereas he and Mila have written some stuff together, but she's got a piece that is maybe more on the formalist side, but taking the same position that this is permissible.
I don't know. I have a general skepticism about radical changes to existing doctrine because some smart person like you or your friends wrote a lawyer article that cleverly shifts the moving pieces around. That's something that I have a certain amount of skepticism about, about the current state of conservative legal movement. It's just like you get somebody to come up with this, "Oh, no one has ever thought of this before. I made this clever argument." And all of a sudden, "Okay, well, I guess everything is unconstitutional now." In that sense, I have a natural conservatism about stuff like that.
My sense is that is this working okay right now? Is there a reason to radically change it? Also, what are the stakes? I can see the stakes in a case where there's going to be a circuit split. But one thing Ron points out is it's just being a confusing mess to have situations where there's a rule that doesn't apply some places, does apply some places, and it's a lot simpler to just say either the rule is valid-- they either followed the right procedural requirements or they didn't. And if they didn't, they need to go to a new rule.
Will: I agree with that. I agree that either the rule is valid or it's not. For me, the question is when Judge Kacsmaryk says that the rule is not valid, does that change whether the rule is valid or does that just change what Judge Kacsmaryk says? Which is important because he's a judge and sometimes right about things.
Dan: Yeah, but you can have a different view. You can be a departmentalist who agrees with Bray but not necessarily agree on this particular question.
Will: Right. I'll say yes. I come at this obviously in some ways from the opposite instincts, is that I'm skeptical of the nationwide injunctions generally, and I'm very skeptical of the arguments in favor of--[crosstalk]
Dan: Well, I didn't say where I was on issuing--[crosstalk]
Will: Right. There's one set of arguments, not the most sophisticated people, but one set of arguments in favor of the vacatur position that's like the Constitutional law can't mean one thing in one place and one thing in another place. Well, it's true, but judges disagree sometimes.
Dan: Yeah, because clearly that isn't true because circuits disagree--[crosstalk]
Will: Well, I'd say-- the law means one thing everywhere, but half the things are wrong about it. [chuckles]
Dan: People can be wrong.
Will: Yeah. Judges aren't always right is the other-- Similarly, I will say, I really like the piece where [unintelligible 00:51:18] shared with me when he says-- he talks about the evolving nontextual meaning of the APA, I find that very helpful, but it moves me in the direction.
Dan: Right because it just is so contrary to your methodological instance.
Will: I think also contrary to the broader tradition of the APA. There's this important case, 1970s, probably Justice Scalia's favorite case of all time from before he joined the court, Vermont Yankee, where the DC circuit had created a bunch of common law procedural requirements for administrative agencies for lots of good reasons. The Supreme Court steps in and says, "No, no, no. The APA has the procedural requirements created by the law. Beyond that, it's up to the agencies decided to do." You see this at the broader levels cycling of the whole point of the APA is to give agencies power and not judges. That said, I do think it's possible for Congress to adopt this kind of rule, and it's not a crazy rule to have that once a district court concludes that a rule is unlawful, they can vacate nationwide.
Dan: Is that possible? There's one point in the transcript where Justice Barrett just asks a question about, "Look, if this were permitted, would there be an Article III problem?"
Will: It's a debate. If you think that the argument against nationwide injunctions, one of the arguments against nationwide injunctions is partly Article III standing argument that courts are only supposed to issue relief in the context of the dispute of the parties before them. So, issuing relief to non-parties is a standing violation or a clear violation. You might think it's unconstitutional to enact this. I think, and I argue in a piece that's about to come out, I think in the Virginia Law Review on severability, that Congress could still adopt this rule as a severability matter. Congress could say, "Agencies are allowed to issue rules, but once one district court finds the rule unlawful, the whole rule sunsets."
Dan: The agency shouldn't enforce it, basically just telling the agency what to do.
Will: Yeah, it's in essence, Congress imposing an inseparability rule on the agency. Like, once part of this rule is unlawful, then we make the whole rule unlawful. I think that's okay. That's not uncontroversial, but I think that's okay. I'm just genuinely unsure what the APA means. There's this phrase, "set aside." And then, John Harrison says, "Yes, now we read "set aside" to mean strike down. That isn't how it was read at the time. Set aside meant more like--
Dan: Just treat it as if it doesn't exist.
Will: Put it aside. Yeah. [chuckles] You set it aside for purposes of this case. You issue the plaintiff the relief they're entitled to, notwithstanding the rule with the rule set aside. Then, other people come up with some examples of people using set aside in the context more like modern vacatur, but not necessarily the majority view. I find that a puzzling debate. I don't have a strong view about the original meaning. I do think I understand where it all went wrong though.
Dan: Yeah.
Will: This is also a point actually from Ron, although I'm not sure he would say wrong. When the APA was enacted, until 1967, I don't think people generally thought that you could just challenge a rule. Like, you were supposed to challenge agency action, but agency action meant like the part where the agency does something to you--
Dan: Like enforcement, maybe.
Will: Yeah, enforcement or something more concrete. The rule is the agency statement of what it's going to do to a bunch of people but the action that you used to challenge partly for ripeness reasons would be like the thing that actually happens to you. And then in the 60s, Supreme Court revises ripeness doctrine to say, "Look, if you're regulated by a rule, as soon as the agency issues the rule, you can usually challenge it."
Dan: You can get to court and do it.
Will: "You don't have to wait for them to come and actually do it to you," which changes what action we're asking about. It changes all the suits from being about the enforcement to about the rule. Now, maybe that's a legitimate move. Certainly if we have that move, we have to figure out how to live with it and how to make the APA apply to it. I feel like that unexpected transformation of what administrative law is about means that courts are now doing a thing that wasn't really what the original setup was. Doesn't mean it's unlawful, just in terms of original expected applications. I think that's where things happened. I don't have a strong--[crosstalk]
Dan: And you want to fix that.
Will: Well-- This is like-- Yeah. The--
Dan: Do you think that there's liquidation that can happen with respect to a statute? Like we can have a statute and it's not totally clear-- because you've written about this common law stuff.
Will: Yes. It totally happens with statute as much as the Constitution, that it can happen that the statute is not totally clear or even that the best reading is one thing, but then practice with enough reflection and debate settles on the other path, let me go with that. I think that's totally fine. So, I'm with you on the question of when should I and my friends be able totally upset practice by writing a large article, and that should be a heavy lift.
There's another problem here which I think is actually a huge problem for people like me that I don't think anybody has a general solution to, which is what to do when there are multiple moves that interact. Suppose you thought that Abbott Labs, the ripeness decision is wrong, but you also thought we're not going to overturn it, do you then make other moves in the statute to counteract that? Or do you make other moves in the statute to broaden that? This is something called the second-best problem.
Dan: Dig yourself deeper in the hole, yeah.
Will: Yeah. It comes up so often in so many different ways. Like we've given Congress more power over whatever than we used to. So, do we now broaden this individual rights doctrine or this other doctrine to make up for that? Or is that like two wrongs make it right? I think that may be where the vacatur debate is going partly is having broadened the nature of judicial review, do we broaden the remedy as well or is that a reason to be extra careful with the remedy?
Dan: Yeah, well, I mean my sense is that they're probably not going to answer this here. What do you think? [crosstalk] -have to.
Will: [exhales] [crosstalk] If they rule against the government--
Dan: If you rule on standing.
Will: If they rule that Texas has no standing, then they don't have to address it. That would be amazing for the rule, Texas has no standing but I'm not holding my breath. If they rule that the government's right on the merits, they don't have to address it. If they rule that Texas has standing and that the government, where its guidance fails on the merits, both of which I think are plausible, then I do think they have to decide whether to uphold or not uphold the relief that the district awarded.
Dan: I mean, for the reasons you were talking about just a minute ago with universal injunctions-- national injunction, is that what I'm supposed to say? As you said, once the court resolves, it's done. So, why would they be able to [unintelligible 00:58:13] in some of those other cases but not here?
Will: Maybe that's right. Maybe the SG's position would be, "The District Court didn't have the power to vacate the rule nationwide, but once you guys say it's okay, well, we're not going to fight it anymore." But the APA is sometimes funny in terms of the formalism about who formally gets to act and when you review--
Dan: Let's not go out on a limb on that. Ron is waiting to pounce.
Will: Yeah. Well, I'm just going to-- kind of funny. I hope that's big enough, [laughs] I can't be wrong about that. He's not going to come in and say the APA--
Dan: Is deadly serious.
Will: [laughs] There's nothing funny about administrative law. Maybe you're right that they can get away with not answering it. I also don't know the SG got them fired up. I don't know if that's going to make them want to answer it because the DC circuit mafia will be appalled by this argument or whether-- and if Justice Gorsuch brings it up, then we can talk about it. But what will be very interesting, for instance, just hypothetically, is if you had, let's say, six votes for standing and six votes on the merits against the administration, but two of those six are against universal vacatur, right?
Dan: Yeah.
Will: And that's not an implausible constellation.
Dan: But it still doesn't matter that much in the real world, once the court has said this is illegal?
Will: It doesn't matter for this case.
Dan: It would matter for other cases, yeah.
Will: But it might matter for other cases especially. I mean, I guess under Marks, we'd say that rule is not controlling, like there is no narrow ground.
Dan: We'll see what happens. I think that we have discharged our duty of talking into the ground a technical, old, not hot off the presses issue. If you have more of those, let us know.
One more thing, if you're still listening and you are in St. Louis, we are doing a live show at my law school, Washington University in St. Louis, next Thursday, February 16th, at 4:30 in the Bryan Cave MOOT Courtroom. If you're around, come to that, especially if you're a student here.
Will: I'm looking forward to the trip. I guess we did a live show last fall, so this will be--
Dan: First in a while.
Will: First in a while.
Dan: We did two last fall. We did double dip in Chicago.
Will: Yeah, you came on my home turf, so now I'm coming to your neighborhood.
Dan: We'll see what kind of turnout we got.
Will: It'll be fun. Please come, ask questions. There'll be a chance to get on the show.
[Divided Argument theme]
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all our endeavors. Please remember to rate and review the show wherever you found it. Help other people find the show.
Dan: Check out our website, dividedargument.com. We've got transcripts of the episodes there. They come up pretty quickly. store.dividedargument.com. We have various kinds of merchandise. You can call us on our voicemail number if you like. You even could do that in song form. We might play that. That number is 314-649-3790. If there's a long delay before our next episode, it's because Ron Levin has found us and locked us up in his basement.
Will: I thought you're going to make a universal vacatur joke.
Dan: Ah, that would have been too easy.
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