We're back to break down two of the Supreme Court's recent 5-4 opinions—Bittner v. United States, about penalties under the Bank Secrecy Act, and Cruz v. Arizona, a death penalty case about state procedures and federal jurisdiction. But first, we take a brief look back at the oral arguments in the student loan case, and a new order and jurisdictional developments in Moore v. Harper (the independent state legislature case).
We're back to break down two of the Supreme Court's recent 5-4 opinions—Bittner v. United States, about penalties under the Bank Secrecy Act, and Cruz v. Arizona, a death penalty case about state procedures and federal jurisdiction. But first, we take a brief look back at the oral arguments in the student loan case, and a new order and jurisdictional developments in Moore v. Harper (the independent state legislature case).
[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: Will, I had a nice visit with you in St. Louis. We're unfortunately back to recording remotely.
Will: It's less fun this way, but still good.
Dan: Yeah. But it is necessary, it is our norm. I feel not a ton has happened since we last recorded. We do have some opinions. We have had some arguments. We have one interesting development in a pending case, but we don't have a ton of blockbuster news. I'm used to now there being these blockbuster leaks, reports coming out of the court to talk about, and we don't have anything like that.
Will: Yeah, this is good. Maybe the court is getting itself under control.
Dan: Maybe. Maybe the Chief Justice does not have to resign. So, of those things I flagged, where to start? We don't have a ton of feedback either. So, this is a more efficient episode.
Will: [laughs] Famous last words. Well, the court heard argument in the student loan cases that we talked about in our last episode in Biden v. Nebraska and Department of Education v. Brown. Heard argument on Tuesday. Argument lasted 35 hours, something like that.
Dan: I just am stunned by how quickly the norms changed around the argument length. Not that long ago, arguments were an hour.
Will: Yeah.
Dan: And then maybe under certain circumstances, they would grant a little bit of extra time if people asked in advance, or they were things to consolidate or different issues or something.
Will: Yeah.
Dan: Are people not mad about this? They're just going on for sitting there for hours? That would drive me crazy if I was a Justice and I wasn't used to it.
Will: [laughs] Well, now they're used to it. I mean, this is the thing about equilibria. I feel like this is true of faculty meetings, this is true of large article link, this is true of many things. It's one thing if we all understand, it's an hour. And Chief Justice Rehnquist is going to interrupt people in the middle of their sentence to get us in at the hard hour, and that's just the way it works. Once you get used to, like, "Well, let just settle my or ask a few more questions. Let Justice Kagan ask few more questions. Well, I want to ask a few more questions." Either in a norm where everybody really holds their fire and the arguments clipped or we all get to cut loose.
Dan: Yeah. I mean, do they miss their lunch?
Will: Sometimes, they end up having the second argument after lunch, I think. No, maybe not. I don't know. Yeah. Maybe they should just start having arguments at 9:00 or something to give them more time.
Dan: Yeah. I would need to eat on the bench or something. I get pretty hungry.
Will: I don't know. If anybody's been in the courtroom, noticed whether the Justices are sneaking power bars or something, I'd be curious.
Dan: What happened in those many hours of argument?
Will: We learned very little. We learned, no surprise, that six of the Justices are pretty skeptical about the lawfulness of this program, and three of the Justices are more inclined to defend it.
Dan: I didn't feel like-- I think that where we were last week and where your prediction was, on the merits, yes, conservative Justices are skeptical, liberal Justices not. But also on standing, I didn't see a majority to accept your standing argument.
Will: I think that's right. That doesn't have to be my standing argument. But-- [crosstalk]
Dan: Any standing argument.
Will: I think Justice Barrett was the most skeptical of the conservative Justices who seemed to get on the merits. She seemed to be the most interested in the standing theories. Even her, I found it hard to read. She asked questions of both sides in a way, but I wouldn't be shocked to see her say there's no standing. I'd be pretty surprised if-- I mean Justice Kavanaugh asked almost nothing about it. Justice Gorsuch asked some questions if you cut either way. So, you could get six or seven votes against standing, but that wouldn't be what you'd expect.
I think Justice Alito, who was the hardest charging on the pro-standing theory, he had this frame that doesn't surprise me that I suspect where the court is going to come down, which is, does any case squarely hold that we cannot possibly take standing in this case? And the answer is no. And if your model of law is, [laughs] you know I'll do this-- [crosstalk]
Dan: Is there anything that absolutely stops me from doing the thing I really want to do?
Will: Right. And the answer is no. If they absolutely want to, and they could do it, and I think they want to, and they're going to do it. It was interesting-- this is to the broader theme we did mention, the title of last week's episode. It was interesting that the Justices seemed pretty focused on the MOHELA theory of standing, the least incorrect theory of standing, and not on broader Mass v. EPA.
Dan: Can you take any credit for that, you think? I thought that was striking. That really seemed to be what the questions were about.
Will: Yeah. Look, I think that is the least incorrect theory. I don't want to take any credit for it, but I'd be happy with that. If that's the theory they come to, I'd be happy that they're at least walking back from the-- [crosstalk]
Dan: Precipice. Yeah, there were a lot of questions about that, about the relationship between MOHELA. Justice Barrett was asking interesting questions about, is MOHELA also a state actor? Does it get sovereign immunity? Are those all three different tests? It seems like the answer is maybe those should all be different tests.
Will: That was a little confusing because I think in the lower court briefing, the SG's position was that the sovereign immunity test and the standing test are the same. Which is, I think, my view that if you're a sort of independent arm of the State, whether you're an arm of the State or independent for sovereign immunity purposes, it's kind of the same for the other side of the V.
Dan: I didn't think that's what Solicitor General Elizabeth Prelogar was saying at the argument.
Will: It's definitely not [crosstalk] the argument. I think that's in part because nobody actually knows what the sovereignty test is. There's like a four-factor test that's kind of confusing. There's a much better concurring opinion by Judge Stephen Williams that says it just comes down to whether you can sue and be sued, which is the factor, I think, relevant to MOHELA. My view and the view they take in the amicus brief is they should be the same but you're currently confused with the sovereign immunity test too. So, let's focus on this one. Probably, the sovereign immunity test done rightly but also look about the same.
Dan: And then, the question of whether it's a state actor is a separate question, because could it violate the Equal Protection Clause?
Will: Yeah, that seems strange because of course it's separate. Like counties, individual government officials, political parties are all state actors, and I'd be pretty surprised if anybody thought the state could sue on behalf-- [crosstalk]
Dan: Private prisons?
Will: Sure, yeah. If something happened to it in some way and the Republican Party didn't want to sue, that the state of this could sue on its behalf to vindicate its own rights, that would be bizarre. I'm not even sure states can sue on behalf of individual government officials in their personal capacity who don't want to sue. So, that seems strange.
Dan: So, we'll find out. I assume this is going to be a late June case.
Will: Yeah, I assume that's right.
Dan: Yeah, because it's already March. Even if they started this one earlier in the term, if there's an earlier argument, I still think this could be a late end-of-term case given how late in the term it is already.
Will: It's going to be a double dissent case because sometimes there are cases that are 6-3, or 5-4 where it's like there's one lead opinion and one lead dissent. But this is presumably going to have a dissent on the merits and a dissent on standing-- [crosstalk]
Dan: [crosstalk] -people.
Will: I think that's usually high. I mean, it doesn't have to, I think that's the norm.
Dan: Why don’t just write one big--?
Will: I don't know. It's often the norm that Justice Kagan would write this merits dissent and be joined with the other two. Meanwhile, Justice Jackson would write the standing dissent joining the other two. Obergefell is like 5-4 in every--
Dan: Yeah.
Will: Yeah. Justices are on dissent.
Dan: Yeah. Okay, so that's in the works. So far, it almost validates our priors. So, [crosstalk] we got this-- [crosstalk]
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Will: Yeah. Another big case that might go away, we spent some time in the past on this case, Moore v. Harper. The independent state legislature doctrine in North Carolina, do you remember that one?
Dan: I do.
Will: Yeah.
Dan: Everybody should remember that one.
Will: Big one.
Dan: Potentially a big one.
Will: Well, yeah. A funny thing happened on February 3rd that got a little bit of attention among Supreme Court nerds, which is that the North Carolina Supreme Court granted a petition for rehearing in the case. And it's complicated. We should talk about in a sec, but the case has multiple pieces, and there's a remedy piece. There are multiple different collected cases but the North Carolina Supreme Court had a change in personnel, and the change in personnel appears to have led to the North Carolina Supreme Court granting a petition for a hearing, which is very rare at the North Carolina Supreme Court, just as it is at any at the US Supreme Court.
Dan: The cert petition in this case was granted about a year ago. The cert petition by the Supreme Court was granted in March of 2022. March 17th.
Will: Yes.
Dan: Yet somehow this case, which has been up there for months and months and months, is now still kicking around back in North Carolina Supreme Court.
Will: Yeah. I bet the Justices are pretty surprised when they found out about this. I don't know when they found out about this, but yesterday, as we're recording so Thursday, March 2nd, the Court issued an order directing the parties and the SG to file supplemental briefs on the following question. What is the effect on this court's jurisdiction under 28 U.S.C. 1257(a) and Cox Broadcasting Corp. v. Cohn of the North Carolina Supreme Court's February 3rd 2023 order granting rehearing and any subsequent state proceedings. 10 pages to be filed by Monday, March 20th.
Dan: Which, interestingly, neither party in the case, no party in the case had addressed.
Will: Nobody filed anything. I could have expected at some point somebody, so basically whoever thought they were going to lose was going to file a notice of mutinous or something.
Dan: Nobody did? Why do you think nobody brought it up?
Will: It's because nobody wants an answer?
Dan: I generally don't know. I was hoping you were going to have a theory as to that because maybe just nobody knows. Maybe they both think it doesn't matter. It's not clear it doesn't matter.
Will: Right. I think it's possible that [unintelligible [00:10:19] doesn't matter. I think it's possible that everybody wants the court to answer the question. I mean, there is this--
Dan: And just to be clear, what we think the North Carolina Supreme Court is going to do is going to change the merits decision about whether the state supreme court-- [crosstalk]
Will: Potentially.
Dan: Yeah, presumably that's why. I don't know how many Justices it takes to grant rehearing in the North Carolina Supreme Court, but obviously there's been a change in partisan control in the court. Presumably, that's why they're doing this, right?
Will: Presumably. Presumably, they're going to reconsider their merits holding that either that there is a partisan gerrymander requirement, or this violates the partisan gerrymander requirement if it exists, or at least that's on the table. So, as I say, it is possible everybody wants an answer because this is the kind of issue, I think Justice Kavanaugh said this in one of the many writings in this issue, that it is good to settle the answer to this question, not in the middle of a presidential election where everybody currently knows exactly who it'll help and who it will hurt and the appearance, the court ends up being caught up in politics. Now, that's an argument for advisory opinions, just like not the court is supposed to do, but practically speaking.
The other thing I wondered is this. It's happened a couple of times recently that when a case has started to move to the Supreme Court, the Justices have gotten really mad about it.
Dan: Yeah.
Will: It happened a few years ago in one of the New York gun cases that the New York city council and legislature [crosstalk] the law.
Dan: Yeah.
Will: And some of the Justices were really ticked off about it, like, "Here you are." There is this funny dynamic of like, get to the Supreme Court, hear oral argument, hear how it's going, and then if you don't like how it's going, try to make it go away. I did wonder if everybody is just afraid the court will be mad at them and think it-- if you're the respondent and if you bring this up, the court is going think it's your fault somehow. So, you might just be like, "Look, they can find out whatever they want to, I don't want them getting mad at me."
Dan: They want 10-page briefs due in a few weeks, two and a half weeks. It's a short brief, so they've got to be really concise.
Will: Yeah. Quick turnaround.
Dan: Yeah.
Will: Presumably, the parties have been thinking about this for the past month. [chuckles] Now, I'm now curious what they say.
Dan: Yeah. There's two questions here. There's the question the court seems interested is whether the court still has jurisdiction. And then, you wrote this really interesting blog post that actually seems right to me saying that there's--
Will: I love the ton of skepticism in your voice. [laughs]
Dan: Yeah, no, you get one right now and then, suggesting that there's actually this totally converse problem, which is how does the state court have jurisdiction to keep messing with the case after certiorari has been granted?
Will: Yeah, so the court's question, just to be clear, is for state court proceedings, the Supreme Court has to wait until the state court decision is final. It can grant cert in the middle of stuff for federal courts, but for state courts, it has to be final. Now, the court has a case called Cox, it's this final--
Dan: Subject to some exceptions. Yeah.
Will: Yeah, final doesn't really mean final in four various cases that the court made up, but those are the exceptions. The court is worried about, has this case suddenly become not final or may have been revealed not to be final by whatever's going on here. I have the flip side worry, which is, how does the North Carolina Supreme Court have jurisdiction to make a case non-final? Like, once the court is-- so there's a well-established principle of law, weirdly hard to source other than the decisions that just in ordinary appeals, when you appeal the case, whatever you appeal from the district court of the appellate court, the district court loses the jurisdiction over it. If the district court can't watch how the seventh circuit argument is going and then change its mind or whatever.
Dan: And it seems a collateral issue.
Will: Sure, yes, if it's a collateral issue, sometimes, the merits are in the Court of Appeals while the attorney's fees are below, but there are various cases about slicing the issues in a way to make sure that only one part of the case is in one place at a time. So far as I can tell-- it doesn't come up as often, but so far as I can tell, the same principle applies to cert, and so far as I can tell, the same principle applies to state courts. Now, some people have the reaction like, "Well, state courts are different because they're sovereign and the Supreme Court can't tell them what to do." But I don't think they're different on this point. We have appellate jurisdiction over the state supreme courts under Martin v. Hunter's Lessee, so they have to listen.
Dan: Yeah, I think that has to be right. I'm trying to think of the right hypo to explain the point, but if the court is hearing some-- can we come up with a clearer hypo that would really illustrate it? There's some case pending on cert from a state court, and then a state court does something wacky. Let's say that there's a case that was dismissed in the state courts, and then it's on cert, and then the state court is suddenly like, "No, let's just go have a trial anyways," or something like that, right?
Will: Sure. Well, obviously, this goes up more directly if you imagine a capital case where the state can't go ahead and execute the person while the appeal is pending. But usually, there's an-- [crosstalk]
Dan: Isn't that because there's a stay issue?
Will: A stay of execution. So, maybe that's different.
Dan: Yeah, I feel like they might still be able to put forward [crosstalk] on stay.
Will: [crosstalk] Just imagine a criminal conviction where the state supreme court affirms it, and then it goes to the Supreme Court, and it looks like the Supreme Court is going to reverse and make some sort of new constitutional law, Miranda or whatever. After argument, the state Supreme Court says, "Well, on second thought, we've decided to grant your relief under the-- [crosstalk]
Dan: [crosstalk]
Will: [crosstalk] -on some ticky-tacky state procedural thing that doesn't make any precedent. I imagine they do that all the time to make sure that the Supreme Court doesn't ever stop them. Something seems wrong with that to me.
Dan: Yeah.
Will: I think the Supreme Court would be rightly irritated.
Dan: Yeah.
Will: It's sort of related to the first point, they are like-- [crosstalk]
Dan: Although it sounds more like exceptions to the mootness doctrine problem because it's kind of like the voluntary cessation problem in mootness, where one party is like, "No, we'll stop doing it just to moot the case." And then, the rule is like, "Well, that's not enough to moot the case." This is not quite down because it's like the court below--[crosstalk]
Will: The court. The voluntary cessation doctrine is all about the party--[crosstalk]
Dan: I know, yeah. And this is weird. That would be weird.
Will: I will say this is one of my favorite obscure opinions. It's a case called Honig v. Doe where somebody, I think it's Chief Justice Rehnquist, floats this idea that's never gotten an attraction, although maybe it's the secret rule, that Supreme Court cases can never become moot. His argument is like, once this court takes jurisdiction, everybody's got a broader-- the country now has an interest in the resolution of the case.
Dan: That can't be right.
Will: It can't be right. And yet, it's obviously how the Justices feel. Every time they grant cert and then the case settles or somebody repeals the law or something happens, they get pissed and feel like they've been cheated out of their right to--[crosstalk]
Dan: Yeah. If it's like a criminal case and then the defendant just dies, which happens sometimes, they can't continue to--
Will: They don't. The court rejects this principle. [laughs] I think Justice Scalia says, "That's not how it works."
Dan: Yeah, because if they were right, I mean, who would care on the front end either? If it's basically about like, deciding an issue of importance, why do they even need a case? They can just issue some of [crosstalk] opinions.
Will: Well, you might say though, look, at the time they grant it, it has to be a case, and that's a good check. But then, whether we get the opinion done in a week or a year shouldn't really matter, like it should still-- At that point, everybody has filed their amicus briefs, everybody spent all their time on it. I think this rule is lawless. I thought of writing article about this, a little part of me thinks, like, "If this is how the Supreme Court feels, just up the damn rule."
[laughter]
Dan: Okay, so your intuition is, how does the state court do this? That seems right to me. And where does that come from? It seems like it just has to be inherent in the relationship between a higher court and the lower court.
Will: I think you'd say it's implicit in an appeal. I found some old treatises that say this, what certiorari used to mean. It was like we take the record, put it in a box and ship it up to the next court. There was a rule everybody understood that whoever had the record, the record is the ball. Whoever had the record is the person who can make forward plays at this-- [crosstalk].
Dan: Now, it's all online, and so it works differently.
Will: Yeah, but still, we've moved online, we grant the writ of certiorari, we move the ball. My instinct is that these might even be related, that maybe the North Carolina Supreme Court can keep acting on whatever part of the case that US Supreme Court doesn't have, they have to control the remedy in the court of the merits, whatever.
Dan: Even if that would moot-- or only in ways that don't interfere with.
Will: Only in ways that don't interfere with the part the court has. They've got to leave the merits alone.
Dan: They can start saying, "Well, the merits are what they are. But assuming the merits are what they are, here's the remedy." And then, the court can come in at the end and be like, "Actually, you're wrong on the merits."
Will: Yeah. We'll see also if the parties notice this problem, care about this problem, but I guess I wouldn't be shocked to see the parties might have to figure out what they think about this or that-- [crosstalk]
Dan: [crosstalk] -have you file a ten-page amicus?
Will: Well, let's see. The parties and the Solicitor General are directed to file, so I am not a party and I'm not a--[crosstalk]
Dan: It doesn’t say Will Baude is forbidden to file.
Will: It's true. I guess I could ask for leave to file.
Dan: Like a five-pager?
Will: The thing is I don't understand this problem. I spotted the issue. I got a B on the exam.
Dan: Well, you could do that. You could file a brief saying this is an important issue and the court should [crosstalk] another round of briefing on it.
Will: The least helpful amicus brief ever.
Dan: Yeah.
Will: Other problem is I'm not a member of the Supreme Court bar.
Dan: I am. I'll sign up.
Will: [laughs] Ah, thanks.
Dan: I'll be your counsel, the counsel of record.
Will: [laughs] I don't think that makes them happy, Dan.
Dan: Okay, because of me?
Will: No, just because it's annoying.
Dan: I don't think it's annoying. You're just giving them some stuff to think about, right?
Will: Right. But giving Justices things to think about on hard jurisdictional problems, they usually find that annoying.
Dan: But it's important. It's a thing they're supposed to do on their own.
Will: And they're obviously trying to do it on their own. They're just flying blind.
Dan: Yeah. First of all, what do you think the different parties are going to say?
Will: Yeah. My guess is the main parties will say that the court still has jurisdiction, in part because it would be awkward that they didn't bring it up until now if they think the court doesn't have jurisdiction.
Dan: That's not a great reason. Well, maybe they could come up with a reason why they figured that out and it wasn't true.
Will: I guess it's the SG will write something more interesting and nuanced. SG can write a brief, it's like, "We think there is jurisdiction, but here is why you should think there isn't--" Like, they're different. I assume everybody wants the court to hear this. I assume everybody's going to say the court has jurisdiction somehow.
Dan: Everybody? You think even the SG?
Will: I think that's my prediction, yeah.
Dan: Because there's multiple people. There's the challengers, there's two sets of the state and nonstate respondents.
Will: The two different respondents splitting, as I think about it, I can imagine that.
Dan: Why do you think the state will want to say it's still live?
Will: Yeah.
Dan: And the nonstate respondents will want to say--
Will: Maybe not. This is just one of these things, it's technical enough and lots of people don't think about it, that it could be that they're all going to look into it and they don't know what they're going to say until they have their associates read Cox carefully.
Dan: Well, I guess we will see. And then, I assume that the court is putting the pen down on the opinions for now. That's like when you're a lawyer and there's some tough assignment you don't want to work on it and then you get some reprieve.
Will: I would guess that the majority opinion is already circulated and that somebody who needs to join the majority opinion or somebody in dissent is now raising this. Maybe, but I don't know if there's a lot of like-- they probably don't stop, say, checking the majority opinion or whatever, but my guess is that's where things are. Majority opinion could lose. You only need a couple of people to suddenly spin off on a jurisdiction to scramble the lineup. Yeah, that'll be fun.
Dan: It'll be interesting. [Will laughs] Fun? I don't know. You're kind of fun.
Will: This is be-good-to-me guy.
Dan: Yeah. You're Mr. Jurisdiction. Other stuff like that to talk about, I don't think so.
Will: Nothing else of great interest on the shadow docket or the other kind of--
Dan: Yeah, the docket-docket.
Will: [chuckles] But we got some opinions finally after a long time.
Dan: Including one on the other docket, the original docket. I don't really want to talk about that one.
Will: So, we had five opinions recently, I think, a couple of which we're going to talk about. One of the opinions we're not going to talk about, Delaware v. Pennsylvania, Justice Jackson's first majority opinion about the definition of a shipment in a dispute between various states about money orders. One reason this case is interesting is it implicates the Moore v. Harper issue we talked about just a second ago. This was the case where after argument, the special master, Judge Leval, apparently listened to the argument and realized he screwed up. [chuckles] And then amended his order, switched sides. I think there was supplemental briefing in which the parties even invoked this principle.
Well, they all agreed that it was a little different there because it's technically not an appeal. So probably as a special master, he can change his mind and say whatever he wants because he's just advising the court. But the same problem and the same-- the court is truly familiar with the recent problem of, "Here we grant review," and then people start changing their minds while--[crosstalk]
Dan: That’s a good point because the special master is kind of like the lower court.
Will: Yeah, kind of. So, that's the only reason it's interesting. We have a couple of other opinions we don't need to talk about, Bartenwerfer v. Buckley, textual bankruptcy opinion about definition of fraud. And Helix Energy Solutions v. Hewitt, which had a very lively and interesting argument from Paul Clement and kind of an endless textualism fight between Paul Clement and Elena Kagan. But the result is that Elena Kagan, who is a Justice wins that fight [crosstalk] Clement was not.
Dan: We thought about talking about that one, but we've got to fire a little bit. But the lineup in that one is Kagan with the Chief, Thomas, Sotomayor, Barrett and Jackson, and then Gorsuch dissenting, and then Kavanaugh separately dissenting, joined by Alito.
Will: And a little bit of interesting administrative state going off, there's a shadow fight there about various regs that have been issued about interpreting the statute and the parties didn't challenge those regs. Some of the Justices were annoyed that they didn't challenge them because that would be a much more interesting question than the definition of paid on a weekly basis.
Dan: Can we talk about speaking of lineups, can we talk about Bittner v. United States first?
Will: Yeah.
Dan: This one is interesting, and it's got a lineup, I'll get to in a minute that I don't fully understand and I'm hoping you will solve for me. This is a case about the Bank Secrecy Act, which imposes, I think, some fairly onerous requirements on people that have non-US bank accounts to file reports about those bank accounts sort of listing them. Or if you have more than a certain number, you don't have to list them, you summarize them.
Will: And this is totally inconsistent with my understanding of movies. I thought if you had a Swiss a bank account, you could put any number of millions of dollars in there and nobody got to know about it.
Dan: Well, you could. And then, they decided to crack down.
Will: Yeah. Okay.
Dan: And this is part of that. Switzerland had to back off on that. Now, this is way broader than just limiting people that have just millions of dollars in Swiss bank accounts, so basically, any foreign bank account you have subjects you to this. The problem is that you can get in trouble for not doing this even if you do so accidentally.
Will: Like you don't know you have money in a foreign bank account?
Dan: Even if you do so non-willfully. Like you don't know about the obligation to file or whatever. If you don't--
Will: And the question is, how much trouble?
Dan: Yeah. If you don't do it, even if it's non-willful, if it's willful, it's real bad. But if it's non-willful, you can get a $10,000 penalty-- Up to a $10,000 penalty for failing to do the thing you're supposed to do. And the question is, what's the thing? What's the unit that can subject you to this potentially quite significant penalty? [crosstalk] Per account you don't report, so let's say you have 50 accounts, and you don't file a report at all, you don't report any of them, does that subject you to $500,000 in penalties? Or does it subject you to $10,000 in penalties for not following the one report about all the accounts? Here, there's a couple of different cases involved, but one of them was going to be subject to a $2.72 million penalty for not reporting over a period of years, 272 accounts.
Will: They start with the facts and the cases. This I found a little confusing, I think, funny. This is just a case from the fifth circuit involving Mr. Bittner.
Dan: Yeah.
Will: I gather there was a split in the fifth circuit and the ninth circuit.
Dan: Yeah. They just gave us the facts from the other one.
Will: Well, and I think it's because they're very sympathetic. The fifth circuit facts, which Justice Gorsuch does not lead with, but which the dissent leads with, even the first sentence, "Alexandru Bittner, an American citizen, held as much as $16 million across more than 50 bank accounts in Romania, Switzerland, and Lichtenstein." And there's various patterns of his bank holdings over many years. It's a lot of accounts, it's a lot of money. It was one of them. So, maybe conjure up certain stereotypes we have about--
Dan: But it was non-willful. It was non-willful.
Will: Maybe so. But that's the fact of the case. This guy with $16 million in 272 separate bank accounts gets in trouble for a lot of them. But Justice Gorsuch, he leads with the fact of the ninth circuit case that's not on review, which involves a woman whose father died, and she inherited some money in the United Kingdom and then she had this bank account there and she didn't know that she had to report it. That's like a much more sympathetic fact pattern. Maybe it's the more common fact pattern, but it's like you immediately assume it's non-willful, you immediately feel like this seems excessive to fine her 13 times for this inherited money that maybe she didn't understand how to deal with. I just thought it was really funny too.
Obviously, opinions often spin the facts differently based on how they want you to feel about it. But it's the first time I've seen [crosstalk] an opinion start with the facts of a different case, because the facts of the case under review are not good. That was a nice move by Justice Gorsuch. It's funny.
Dan: Yeah. Okay. You've already tipped off which way it's coming out because Justice Gorsuch is giving you the sympathetic facts to make you want to agree with him that it's a per report, not a per account penalty, so a smaller penalty. But the lineup, a little weird. It's Justice Gorsuch, plus the Chief, Alito, Kavanaugh, and Justice Jackson. And then, dissent is Barrett, Thomas, Sotomayor, or Kagan.
Will: That's just the standard political 5-4.
Dan: Yeah. That's how these things go. Then, by the way, for reasons we'll talk about in a second, part of the Gorsuch opinion is not a majority.
Will: It's only Justice Jackson and Gorsuch. That well-known duo.
Dan: The duo. And it's a little bit of a weird breakdown initially. It's a case where I think the political ideology just at the very first glance, is on Gorsuch's side. It's like the pro little guy against the tough government trying to post penalties. But except then you say, "Well, it's a white-collar business money case," maybe that flips the ordinary valence of those kind of cases. That leads me into an indeterminate place.
Will: Yeah. This is actually one of the things I find funny about attempts to do the naïve legal realist thing. Criminal fines against rich people who have money in foreign countries, are those criminal cases or are those civil cases? I'm confused. I find this line up inexplicable, I guess I'll start there. Maybe we should talk about it, the reasoning and the issues a little bit. For the most part, it seems to me the dissent contains the most textualist Justices who don't also have a strong passion for the rule of lenity. Sotomayor is the one oddball a little bit there. But Barrett, Thomas, Kagan, if you asked me who are the most textual Justices in the court, presumably we'd say Barrett, Thomas, Gorsuch, Kagan. We lose Gorsuch because-- well, because of the part of the opinion that only he and Justice Jackson joined. And then Justice Sotomayor is a slight surprise there, but I don't know, maybe [crosstalk] there.
Dan: Yeah. Some commentators have tried to come up with elaborate theories of how this is all the Justices divvying up sides so that they can look like they're not totally partisan about everything. I don't think that's [crosstalk] these things work.
Will: I don't know if it's the way things work or the way it's appropriate, but if the court is sufficiently-- We hear all these reports that the court is disorganized and fractured, and it's the scorpions again, whatever. If the court is sufficiently organized, that they can collectively agree to randomly draw lots in bankruptcy cases just to make us all wonder.
Dan: Like in advance, the libs are like, "Okay, Justice Jackson, you go the other way with this one, and we'll shore things up over here."
Will: More power to them if they can manage that a football play. Okay, so what do you think of this case, Dan?
Dan: I think it's really interesting. I think maybe we should try to break down the text a little bit? Let's maybe look at page 5 of majority opinion, which takes us down--
Will: 31 USC 5314 and 31 USC 5321?
Dan: Yeah. 5314 requires, it says, "The Secretary of the Treasury is supposed to require people to keep records, file reports and so on when they make a transaction or maintain a relation with a foreign financial agency." And then, it says that reports shall contain information about the identity and address of participants in a transactional relationship and various other things. There, as Justice Gorsuch highlights, the text does not talk about individual accounts. It talks about the duty to file reports and so forth.
Will: If you have multiple accounts, do they all go in one report, or do you have to file one report per account?
Dan: Well, as I understand it, that's something that the Secretary can determine. That's not clearly something that the statute determines. That's something that regulations-- they can set up regulations about that.
Will: You file a report in the way and to the extent the Secretary prescribes.
Dan: Yeah. And then, section 5321 authorizes these penalties, and it says, in Justice Gorsuch's words, "It pegs the quantity of non-willful penalties to the quantity of violations in the statutory language violations." Okay, that doesn't really answer the question.
Will: Well, Justice Gorsuch says, "Look, the duty is report based, not account based." The duty is to file a report.
Dan: To do the thing that you're supposed to do that the--[crosstalk]
Will: The thing you're supposed to file a report. The current structure is the report should be about all your accounts. So, what did you fail to do? You failed to file one report about 29 accounts. That's one failing. Just like if the report is supposed to contain four different pieces of information and you fail to file that report is one violation, not four violations because you didn't give them the bank account and the whatever and the whatever.
Dan: I don't know. It's not crazy, yeah.
Will: Yeah, do you buy that?
Dan: No, I mean, it does suggest though that if the government wants to, it can just change the regulations and just say you have to file one report for every account, presumably like individualized reports.
Will: I was confused about that, whether this is a rule that's dependent on the current-- These reports are called FBARs. [chuckles] [crosstalk] -funny. I laugh at it whenever I see it. Whether it's FBAR based, and so therefore the Secretary could impose a bunch more paperwork on everybody if they want to ratchet the penalties. I was confused by that. And then, apart from the text, they make this move, the next move in part B, you see this, textual clues.
Dan: Yeah, this is surprising.
Will: They look at various IRS letters and forms and guidance documents the government issued.
Dan: Which is not really something you would normally-- there's some circumstances you might do that in an administrative law case, maybe, but just as a matter of straightforward statute or interpretation, it's not clear that stuff is relevant at all.
Will: Yeah. So then, the majority has a footnote about this. "The dissent expresses surprise that we cite the government's guidance documents. We don't see why. Our point is not that the administrative guidance is controlling, nor is that the government's guidance documents have consistently endorsed Mr. Bittner's reading of the law, because the guidance documents are back and forth. It's simply that when the government or any litigant speaks out of both sides of its mouth, no one should be surprised if its latest utterance isn't the most convincing one. This is no new principle in the law any more than in life." The court cites Skidmore, one of the agency deference cases that says that even when there's no deference, you take it [crosstalk] agency said.
Dan: It's still weird though. I've read that footnote a few times, and I'm still not totally unsure of what these things-- it says, "No one should be surprised if its latest utterance isn't the most convincing one." Okay, but again, what are the other utterances supposed to show us? Isn't the court's job just to figure out whether it's convincing or not? It seems like maybe this was worth a sentence or two in the majority being, "Although the government says this, it has read it differently previously," citing examples.
Will: A couple of things about this passage. I did wonder if this passage is crucial to some of the joiners. Is this the Chief and Justice Kavanaugh are really actually moved by this, that there's something shady about the agency saying, it shouldn't guide [crosstalk] or something like that. The court gives it enough emphasis that you wonder if this is really doing some work for some of the people who joined.
Thought two, I do know that if you talk to tax people about administrative law, I think a lot of them-- I'm sure Ron Levin is going to write to us, but I think if you talk to tax people, they take these guidance things that the IRS does way more seriously than lots of other administrative law people do. They'll still say formally yes, it's just an IRS letter, it's just an IRS form but everybody knows those are really important. I don't understand what these documents are, whether these are the ones that everybody understands are important. I get the sense that the tax system does work heavily on forms and letters and stuff like that.
Dan: Yeah. The point he makes in this section does feed into something he says in the next section. I don't know if we're ready to talk about that yet. If you have more you want to say about--
Will: I have one more about this. The last theory about this is sometimes it seems like it's important to a court to show that they did not completely make this theory up. That there is somebody once, five years ago who said this, even if it's a random-- this is like in the independent legislature case.
Dan: You were working on a paper that's sort of about this.
Will: Exactly. Richard Re and I are working on a paper about this, the need to show that your argument is at least not completely out of left field, even if you ironically do that by coming up with one random out-of-left-field source. "Joseph Story, the Massachusetts Constitutional Convention in 1830 said this and so I didn't make it up." This is a little bit of that flavor. It's like, "Look, 12 years ago somebody at the IRS said what we say now. So, even if somebody else did the other thing, we didn't make it up." It might be that.
Dan: Okay, so interestingly, this part joined by everybody, the other conservatives seem to agree that this has some relevance under Skidmore, I guess, to show you that the government's argument is less persuasive. Although, again, there's no deference here, so it's just a little weird. But then, we have this next section where three of them drop out. So, it's just Gorsuch and Jackson, in which, as you mentioned earlier, the opinion, the non-majority opinion, strongly endorses the rule of lenity. This idea that normally we're talking about this in the context of criminal statutes, but it also applies to penalty, other kinds of civil penalty statutes, that you construe them strictly in favor of the defendant, in favor of the little guy. This is a principle that is out there that basically the court talks about here and there and says is really important and then never follows. Almost never follows.
The court has-- I think, the mainstream view of this principle in the court, is the rule of lenity is a thing that comes in after you look at the 12 other things you're supposed to do in statutory interpretation. If at the very, very end, if everything is perfectly equipoise, the tie goes to the defendant, but basically things are never in perfect equipoise. That's one vision of it. Would you say that's fair as to where the majority of the court has been over the last couple of decades?
Will: On paper, although-- Wait, we've talked about this in several cases. The court often gets these criminal cases where it does seem to read the statute with a skeptical eye to the prosecution.
Dan: But it doesn't say it's doing that because of the rule of lenity. It says it's doing that because of the text.
Will: Yeah.
Dan: Sometimes, it'll even say, "The defendant invokes the rule of lenity, but we don't need to do that because the statute is clear." They do mention it in Yates, the fish spoliation, the fish dumping case, everybody's favorite.
Will: It's part of the vagueness doctrine too, like in the honest services and the ACA cases, isn't the rule of lenity in conversation with the--
Dan: I think maybe there's some related concern. In Skilling, the honest services cases, there's this honest services statute that a lot of lower courts have interpreted in this wild way to criminalize everything you do that's shady, I think, was the leading theory and the court-- There's a vagueness challenge to that, the defendant and others saying, "This is unconstitutionally vague. It should be stricken, can't be enforced." And the court says, "No. Our job is to pare it down and to interpret it according to its core." I don't know if that's exactly the same as lenity.
Will: Okay, fair enough. So, is this a criminal case then?
Dan: No, this is a civil penalty case. You could--
Will: Does the rule of lenity apply to civil cases?
Dan: Well, according to Justice Gorsuch, it does, citing this case, Commissioner v. Acker, 1959. And so, let's pull that case up, that looks like a tax case from 1959.
Will: From the Warren Court.
Dan: In that case, looking it up, it does not use the phrase "rule of lenity," but it says, "The law is settled that penal statutes are to be construed strictly, and that one is not to be subjected to a penalty unless the words of the statute plainly impose it." Okay, so got something there but it is a rule that we more typically think of as a criminal doctrine. It can come into play if there's a statute that can be interpreted, that can have both civil and criminal applications, maybe. But Justice Gorsuch, he seems to believe in a broad version of it in terms of how it works as a rule of interpretation and a broad vision of its domain.
Will: Yeah. But his belief in that is not widely shared.
Dan: Yeah. Justice Jackson agrees that this should apply to penalty provisions. Basically, anytime there's a penalty involved, I guess something we just call a penalty, that should invoke the rule of lenity. Here, that actually provides strong support for the reading, rather not just to narrow a tiebreaker. But I mentioned the previous thing we're talking about, the guidance documents. Interestingly, the court here, the two-Justice plurality here says that there's a fair notice problem, that basically people haven't really realized that they're subject to this under this extensive liability. Part of the reason that would be true is because of the government's public guidance documents. That's kind of weird. Normally, we don't. There's a very narrow set of circumstances where we might say the government has estopped people from-- it should be estopped from enforcing a statute in a particular way because it's tricked people into believing that it doesn't apply and that has some due process roots to it. I'm not totally clear where that comes from. I don't think we're in that territory though. It's also not totally clear, like, that's not really a statutory interpretation principle. That's more of like a due process estoppel principle.
Will: This is related to what I asked about vagueness earlier. My memory is that there are three related doctrines. There's lenity, there's vagueness, and there's also something called fair notice where the court will sometimes say-- This is the doctrine that comes up in qualified immunity for instance. Sometimes, it'll say, "Look, the statute was ambiguous enough that the first time you violated it, we won't punish you. But now that we've warned you, the next time you violate it, you're going to be penalized." [unintelligible 00:43:49] judicial opinion sometimes. That's like the fair notice principle. Even though if you took lenity seriously, you might just think, if it's ambiguous, then it should never apply. We should always say, "Okay, the tie goes to the defendant." But sometimes, there's this third principle floating around that's kind of like, "Did you get an adequate warning?"
Dan: Though that also just can be a consideration that comes into other places. Qualified immunity, I mean, that's a doctrine that actually has that very clearly, has a free-floating principle. Where does that come from?
Will: There are some criminal cases where this comes up where if the state supreme court construes the statute in a surprisingly broad way that you wouldn't have been on notice of before, then your conviction is invalid because of the surprise. But then, going forward--
Dan: Yeah. But that's due process. That's actually going to relate to the other case we're going to talk about.
Will: This is due process too, the court says.
Dan: Court isn't saying it's unconstitutional. It's sort of--[crosstalk]
Will: [crosstalk] -the court says.
Dan: It protects the Due Process Clauses promise. A fair warning.
Will: Exactly. The rule of lenity exists in part to protect the Due Process Clauses promise that a fair warning should be given to the world in language that the Commonwealth will understand. I think all these things are floated together in a weird way and it's an interesting project to bring that over here. So, two questions about this. Why do you think other people aren't joining the stand? Is it that we just don't believe in the rule of lenity anyway? Is it the extension of the rule of lenity to this context? What makes this controversial?
Dan: It could be both, but I don't think it's just the extension to this tax penalty context. I don't think that most of them agree with the idea of the rule of lenity as a robust interpretive rule that does a lot of work on the front end.
Will: I sort of have the opposite reaction. I think they don't, but I think they're often willing to sign off on, like, "Fine. As long as the rule of lenity section is last, we can sign off on it." But I think Justice Gorsuch does have this program and there's some previous concurrences here to do to civil liability where he already wants to do criminal liability, which definitely fits his view of the world, but maybe only his view of the world. I'm not surprised that he was skeptical of it. The fact that Justice Jackson joins it is very interesting. Either she just likes the rule of lenity, is happy to see more of it, or she has an interesting theory that we're going to hear more about.
Dan: We've got two takers on that. And then, we have a dissent. Is there anything more to say about majority? I don't think so.
Will: No. By the time I finished the majority, I was like, "Okay, that's pretty persuasive. That seems right to me." And then, I read the dissent.
Dan: Yeah. The dissent, Justice Barrett. This is interesting. We've got two Trump Justices going head-to-head on statutory interpretation and she goes through and makes a fairly plausible, sensible argument that the reporting requirement is tied to individual accounts. The violation is a failure to make report tied to an individual account, not to fill out a particular form in the way that the secretary wants you to fill it out.
Will: I think that it is kind of functionalist to read the statute as a whole argument. If it's like the more you read the statute, the more the whole statute has a per account flavor, that some of the penalties, not these penalties, but some of the penalties are based on the number of accounts. That's kind of an atmospheric argument. It is true that we usually read statutes as a whole, not isolated phrases. And then, she has this outformal the formalist point. Justice Gorsuch says, "Look, the duty is to file a report, not an account. And so, it's one penalty per report." She says, "Okay, true, but the FBAR, the thing you didn't file is not the report. It's a form." The report is like the duty to report an account. And your FBAR might contain--
Dan: Alerting them to the existence of the account.
Will: Your FBAR might contain 27 reports if you have 27 things to report or might contain one report. Therefore, your failure to file an FBAR could be a failure to file one report or a failure to file 27 reports because you and Justice Gorsuch, and this goes to the point we were talking about earlier, are letting the accident of what piece of paper you're supposed to file shape your interpretation of the statute.
Dan: Which is weird.
Will: That seems like a really good point.
Dan: Yeah.
Will: I don't have a strong view about this case, but that seems like a really good point. I think Justice Barrett might [crosstalk] about it.
Dan: Yeah. I do think the strongest point for the majority is really more of a fairness point.
Will: Yeah.
Dan: This does seem like an awful lot of money to impose on people who don't even know about their reporting obligations, and it turns out they have a bunch of accounts. I mean, that's pretty aggressive.
Will: Although it does seem like Mr. Bittner, at least, does seem to have an awful lot of money to spare.
Dan: Yeah. But we're not supposed to just take people's money because they have a lot of money.
Will: I agree.
Dan: You shouldn't believe that. You're not supposed to believe that.
Will: I don't believe that. But still, I'm just saying if we are talking about fairness, I'm sure Mr. Bittner has perfectly legitimate reasons for forgetting to tell anybody about his $16 million of Swiss bank accounts.
Dan: Yeah. Anything else to talk about on that? In terms of the dissent, it doesn't engage with the lenity notice stuff at all.
Will: Mostly not. There is this part 3 where the dissent mentions that this is a substantial penalty, there is a safe haven, that you can get a safe haven basically if it's a non-willful violation and you have reasonable cause and they come forward and report the amount, then you get a safe haven. He litigated below whether he might have to safe haven or not. That's a little bit, I think, of a response of, look, there are parts of the statute designed to mitigate unfairness. He litigated this argument that it was unfair. He lost. He abandoned it when he came here. But the defense is available, litigants can satisfy it, which I take it as designed a little bit to defang the unfair argument. I just thought this was a pleasure to see the court having this kind of fight. These are the 5-4 decisions I look for.
Dan: This is more of in our wheelhouse. Okay. Another one puzzles me a little bit too. Cruz v. Arizona, this is a federal court case. This is a case that I think you are going to be eager to talk about. For that reason, I'm going to make you break down exactly how to set up the question here.
Will: Okay, so this is a habeas case, a state post-conviction death case, right?
Dan: Yes.
Will: Involving Mr. Cruz, who was sentenced to death in Arizona, and because death cases take a long time, the law changes a lot while they're happening. But basically, at the time of his first trial and appeal, the Arizona supreme court thought that-- well, at the time of his first trial and appeal, the judge thought that there was no requirement that he get to tell the sentencing jury that if they give him life but without parole, which the jury might care about because they might think we don't ever think he should be released.
Dan: But here, the jury did care about it. They said after the trial, like, "Oh, that was why we imposed death, and it turned out that was wrong."
Will: Right. It turns out that wasn't their only option. Subsequent case law made clear that that's wrong.
Dan: The Supreme Court later summarily reverses an Arizona case saying [crosstalk]. The Arizona courts have been like, "Yeah, this there's this rule from this case, Simmons. It doesn't apply to us because we're special, and the Southwest is cool." And then, the Supreme Court was like, "No, that's wrong," in a different capital defendant's case.
Will: Right. In a different capital defendant's case later, the Supreme Court summarily reverses, as does Arizona, saying, "Okay, this principle does apply to Arizona sentencing scheme, just like it applies to other people's sentencing schemes." So previously, in 2008, Mr. Cruz loses on the grounds that this principle doesn't apply to Arizona. 2016, case called Lynch, the US Supreme Court says actually, this principle does apply to Arizona. Okay. Now, you can see, if you're Mr. Cruz, you're like, "All right, well, I should go get my death sentence reversed because now the Supreme Court has made clear that this was an error in my case." Everybody agrees it's an error in his case, and now the Supreme Court has now made that clear. As he tries to go back into state courts to file for that. As a matter of state procedural law, the state supreme court says, "No, you can't do that. You're out of tickets for review here in state court because we have a limit on the number of post-conviction relief tickets you can file in state court." [crosstalk]
Dan: But there is an exception, right? You're allowed to do it when what--
Will: We only give you one if there's a significant change in the law.
Dan: Just to be clear, that's a federal constitutional requirement?
Will: As far as this case is written, that's a state constitutional requirement.
Dan: State. Okay?
Will: Now hanging over this case is a question about, how much does the federal constitution govern the kinds of state post-conviction relief it has to give? That may be part of what explains [unintelligible [00:53:02] in a second. But on the paper, it's the state that says, "We'll give you relief if you have a significant change in law."
Dan: Normally, you go to a state court, they say, "You don't get this thing because of state law." And you try to go to the Supreme Court, what's supposed to happen?
Will: You lose because that is what is called an adequate and independent state ground. Maybe you have a valid federal claim, but your federal claim was rejected for a state law reason and that state law reason is adequate and separate from the merits. So, if you go into state court and file after the statute of limitations, you can't say, "Well, but I have a good claim."
Dan: Where you forfeited the argument under forfeiture state-- forfeiture rules, you didn't raise it and you tried to raise it later.
Will: Exactly.
Dan: Because then the Supreme Court, if they tried to weigh in on the federal-- Supreme Court doesn't normally have power to interpret state law and if it tried to weigh in on the federal issue, it would be an advisory opinion. That doesn't matter.
Will: Right. But in a whole range of cases, many of them habeas cases, the court sometimes pierces the state law issue and says that the state law decision is either not adequate or not independent, either because the independent part-- they don't always disentangle the words. But the independent part might mean that really the rule is related to the federal issue that we have to review.
Dan: Like when the state constitutional doctrine is mingled with the federal constitution?
Will: Exactly. And then, adequate means that there's something fishy here about the state's doctrine that we're just like some version of we don't buy it. Which in the 1960s was often-- or 1950s was when state courts would like come up with ticky-tacky procedural requirements that also nobody ever heard of before.
Dan: To stop civil rights protesters from--
Will: Yeah. You show up to file your writ to Supreme Court and they say, "Ah, this is never written anywhere. But common law requires that all of your filings be on extra large paper. Denied." It's technically a state law question. So, maybe there could be a secret common law requirement you file on 14-page paper. At some level, that violated the Due Process Clause but there are plenty of these that aren't unconstitutionally crazy requirements but are sufficiently sketchy that the Supreme Court said, "Well, we're not buying it." I think that's what the Supreme Court just did here.
Dan: Yeah, although the Supreme Court is going to say, "This is not adequate." Basically saying, "We disagree with how you, state court, understand this phrase, change in law."
Will: The state Supreme Court's interpretation of its rule was, "So novel and unfounded that it does not constitute an adequate state procedural ground."
Dan: Yes. This relates to what we were talking about a minute ago. There are these due process cases. They're not exactly adequate and independent state grounds cases, but there's this case, [unintelligible 00:56:00], where the Southern State Court just completely reinterprets the trespass statute to apply to civil rights protesters in a way that it clearly didn't under precedent before. And the Supreme Court is like, "No, you can't just completely change the meaning of a statute retroactively just to screw over civil rights protesters that violates due process." That's not this exactly.
Will: The more relevant case is one that the majority doesn't cite, I think only the dissent cites, which is a case called Montgomery v. Louisiana, a late-stage Kennedy opinion, because one attitude a lot of states had before Montgomery was when it comes to post-conviction relief, like on your first appeal, we got to apply the law fairly. We can't come up with new stuff, whatever. We apply the law at the time, we do our best, and then we're final. But some states took the view that on post-conviction relief, we don't have to do that at all. The federal government is post-conviction relief. We can have post-conviction relief or not. So, if our post-conviction relief is weirdly stingy or even arbitrarily stingy, that's just not a due process violation in the same way that the governor not handing out a pardon is not a due process violation.
That was the conventional wisdom until in 2016, in a case dealing with the retroactivity of the rules about juvenile sentencing, Montgomery, the court said, "Actually, the Due Process Clause and the Supremacy Clause control these proceedings and say that 'If, as a state, you have post-conviction relief proceedings, there are various retroactivity rules you're required to have and ways you're required to treat them.'" It's not crazy, but it was a big deal.
Dan: Yeah. I don't want to get totally sidetracked on that, but it does relate to that question that we've talked about before that I'm interested in about. Harmless error doctrine, which the court sort of said, "You actually don't have to have criminal appeals," the court has said that before, and it's never really, really had to confront that, but it said that. "But if you do, you have to follow these federal rules for how claims have to be considered." So, it's similar to that.
Will: So, that concern, I think, is hanging over the background here. This is against state for post-conviction relief that's using a retroactivity rule that's narrower than the rule that the Supreme Court would like them to use, although whether it's unconstitutionally narrow or whatever, you can debate. That's sort of hanging over the background. I think at least some people might have been worried that the court could use this occasion to, I don't know, even in dicta, expand or contract those kinds of due process principles, but the court stays away from them entirely. So, in a way, what the court has done here, relying only on the adequate independent state ground doctrine, is a narrower rule that doesn't change that much either way.
Dan: Yeah. Are you surprised by this outcome?
Will: Yeah.
Dan: I was a little surprised because I guess maybe I wouldn't have been surprised by this outcome on the court a few years ago but with the court's move to the right, this case has the feel of like, "Well, let's bend over backwards a little bit to make sure that capital defendants aren't getting screwed," which is where the court was some years ago. It was still like that when it was the Kennedy court. My sense is that the court today is less like that. But here, we do have the liberal Justices-- Sotomayor opinion, liberal Justices join and then you have Kavanaugh and the Chief.
Will: I was surprised. I wouldn't quite go as far as bend over backwards to help the capital defendant. I think it's more just like, in this case, the lower court decision just doesn't make a bunch of damn sense. Obviously, there was some kind of change in the law because the Arizona Supreme Court used to go one way, now they go the other way. To say simultaneously, like, "Well, what we did at the time was okay because that was the law, but we didn't really change the law because we got summarily reversed." Summary reversals mean nothing has changed. I think at an intuitive level before you get into the technicalities, it just feels like that's some kind of trick.
Dan: Yeah. Although it's interesting that the court says in a footnote, we don't need to resolve whether the state court is being hostile towards federal law or discriminating against federal law. They're disavowing resting on the idea that the state is deliberately trying to get around federal law.
Will: I think they're not exactly accusing the Arizona Supreme Court of cheating, even though that's what the AISG doctrine is about, and they're not exactly trying to nullify the death penalty. I think there's just a level of, this just doesn't make a ton of sense. While Justice Barrett may have a technical argument about why state courts get to do things that don't make a ton of sense, apparently Roberts and Kavanaugh don't love technical arguments that preserve things that don't make a ton of sense.
Dan: Yeah. Although do you agree it doesn't make a ton of sense? What change in law could mean different things? Because there's other contexts. Basically, I think the problem, as the court saw it, is, "Look, you said overruling a precedent isn't a change in law, even though you'd previously said that was a change in law." Justice Barrett is like, "Well, if you dig into it, those other things, they said were different and this is not exactly that." But aren't there other contexts where we say something like the interpretation changes, but the law doesn't change? Doesn't this come up in Teague v. Lane [crosstalk] cert situations where we say something is not a new rule, it's just the court recognizing a rule that was always there before?
Will: Yes. Justice Barrett has some examples from the way the federal Court of Appeals work that sometimes does the same kind of shape where your Court of Appeals rules against you for a while and the US Supreme Court adopts the other side of the split. And then, we say, "Well, the law has never really changed. It's just that your Court of Appeals got it wrong." At a technical level, I don't think Justice Barrett is necessarily wrong. But she has this thing at the end where she says, "Look, if I were on the Arizona Supreme Court, I'm not sure I would have done this." And I guess that is how I feel. Other than a general desire to preserve capital convictions or something like that, I don't see why we wouldn't try to make this case match, the more recent case, if it were up to me.
Dan: Match, in the sense?
Will: In the sense of Lynch got relief because he had a right to be told about his-- and that's the federal constitutional requirement.
Dan: Yeah. In theory, could there still be a path to federal habeas relief if the court hadn't figured out a way to get-- this will presumably result in Cruz getting state habeas relief, state post-conviction relief. Would there still be some possibility for federal habeas relief? I mean, there's various rules about when you can file a federal habeas petition and when you get a chance to file a second one, whether there's a new rule. I haven't broken down in my mind whether that would have been an out here or not.
Will: Yeah. Justice Barrett says he's only filed in federal habeas once, and that is currently pending. I think he's got a federal habeas claim, a timely initial federal filing in federal court, apparently decided by the district court in 2018, and now pending in the ninth circuit. So, I think he does have a federal habeas claim pending. Now, I guess that claim is subject to EDPA and under other principles that probably still have five to six Justices of supporting them. EDPA, you basically never win.
Dan: Yeah. It would be a deferential attitude towards the interpretation of federal law. Here, state post-conviction, you don't have that. One interesting note is that the court has gotten more willing to get involved at the state post-conviction stage in recent years. I think precisely because EDPA, which makes it very hard to get to the underlying merits of a constitutional issue on federal habeas review, you can avoid that if you come in, the Supreme Court comes in and reviews on certiorari a state post-conviction proceeding.
Will: Yes, indeed. It's funny, I think, 60 years ago in the heyday of federal habeas pre-EDPA, I think this was even stated the court had a policy that it preferred to wait to get the case on federal habeas because the federal district court could develop the record and had lots of tools to develop the record and take new evidence and then the Supreme Court could get a better look at the case. That is definitely not the way it works anymore. Another 5-4 was Justice Barrett dissenting.
Dan: Yeah. Not a good week for her.
Will: Well, a very good week for her. That's a very good dissent. I guess, the two questions. One is which Barrett dissent is better? I think that's right. I mean, they're both very good. I think they're both very good. I do think also, well, the majority opinion by Justice Sotomayor might be the best Sotomayor opinion I've ever read.
Dan: Wow.
Will: You can debate it, but it's quite straightforward and persuasive and I just thought it was a very good piece of work. One last connection that some people have spotted, worth bringing the podcast full circle. Do you think there's a connection between this case and Moore v. Harper? Recall the underlying merits problem in Moore v. Harper where we started is to what extent the US Supreme Court gets to second guess novel and questionable state supreme court decisions that don't-- but where part of its dispute is like, "Oh, come on, is that really how your state law works?" People say, "Well, we mostly don't do that. State courts can decide what state law is." Now, the doctrinal vehicles are different, but here are five Justices, not all of whom we might think of as Moore v. Harper hawks doing that. I imagine this is going to be quoted-- if there is a majority opinion on Moore v. Harper, I imagine this is going to get play.
Dan: Yeah, that's interesting. I don't know if there's obvious language that you would pull out, but I could see that. It would be a gotcha point because it would be presumably conservative Justice using this to get Justice Sotomayor.
Will: Yeah, it's a broader-- I think, after the independent legislature doctrine, of course, came up in Bush v. Gore, which was very political and afterwards, I think it was Henry Monahan who wrote a long article, more or less saying, "Look, this problem happens all the time that the Supreme Court actually has to second guess state decisions about state law that are part of the contract laws or habeas or [unintelligible 01:05:52] or all these other--" and it has to be differential, there are different doctrines how it does it and different ways to think about it. But it's not like a thing that Chief Justice Rehnquist made up only for Bush v. Gore. I guess I do think at a minimum, a hypothetical more super majority is going to say that. It's going to say, "Look, we confront this problem all the time. We don't usually confront the elections clause, but it's a widespread problem and we're not doing something totally unheard of."
Dan: Yeah. Okay. A couple of interesting opinions, other developments. I think that's maybe where we should call it an episode. Anything else we didn't cover?
Will: If so, I'm sure somebody will complain about it.
Dan: This is the time of the year where I really enjoy the podcast because we get the opinions. I enjoy it all the time. But it's a little simpler when we just get some opinions and we can read them and react to them rather than trying to just predict what's going to happen.
Will: But they also want the opinions that you're tired of talking about.
Dan: You mean the ones that are going to come later?
Will: Yeah.
Dan: I'm going to want to talk about them all, the big ones.
Will: We're going to record them soon?
Dan: Oh, yeah. Well, no. Aren't you going to Malta or something?
Will: [laughs] I'll be abroad for several weeks, but I'll figure out a way to record.
Dan: Okay, yeah. We're going to get you a portable recorder and you'll be recording at midnight, wherever you are or something.
Will: I'll be goofier than usual.
Dan: You're not very goofy.
Will: This is me being goofy.
Dan: Okay, well, that's not very goofy. Okay. Lead us out, Will.
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please continue to rate and review us wherever you find the show. We've had a drop-off in reviews lately and be great to get some more, especially as we're kicking into busy season of the show, and help people find the show.
Dan: Yeah. Share it using other mediums if you'd like. Visit our website, dividedargument.com, where we have transcripts of the episodes that go up pretty soon after the episodes are posted. store.dividedargument.com where we have merchandise. Shoot us an email pod@dividedargument.com. Leave us a voicemail, 314-649-3790. We don't always play those, but we do listen to them. And occasionally, we will play them, especially if they're in song format.
And if there is a long delay before our next episode, it is because the podcast is subject to severe penalties for our failure to disclose our foreign bank accounts, where we are storing all the lucrative rewards of our meager merchandise sales.
Will: But not as severe as before. Thanks, Justice Gorsuch.
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