We discuss the passing of Justice Sandra Day O'Connor, then turn to two interesting opinions on the shadow docket (in Griffin v. HM Florida and DuPont v. Abbott), and finally break down the Court's first merits opinion of the term in Acheson Hotels v. Laufer, at the intersection of standing and mootness. Will also expresses skepticism about Dan's latest AI habit.
We discuss the passing of Justice Sandra Day O'Connor, then turn to two interesting opinions on the shadow docket (in Griffin v. HM Florida and DuPont v. Abbott), and finally break down the Court's first merits opinion of the term in Acheson Hotels v. Laufer, at the intersection of standing and mootness. Will also expresses skepticism about Dan's latest AI habit.
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, Will, we're starting finally to be in our sweet spot when the court starts giving us opinions that we can talk about, which is just so much easier than having to break down cases before they've been decided.
Will: Yeah, a lot less to read.
Dan: Yeah. Although maybe if I was doing my job well, I'd still read everything for those-- The one we did get, we got this one opinion. It actually is one where I think we've both done all the reading and listening. So, we're well prepared. That's the Acheson case about ADA tester standing and mootness. We will come back to that, but it's a case that we talked about pretty extensively maybe two episodes ago. And so, those of you who are regular listeners but haven't been listening super recently, maybe you want to pause here, go back, listen to that episode, and then you can find out the ending to the story.
But before we get there, it's been a few weeks. So, there's always some stuff that's happened. Biggest thing, maybe the death of retired justice, Sandra Day O'Connor.
Will: Yeah, I think so.
Dan: Yeah.
Will: She'd been retired from public life for a few years.
Dan: Yeah. She left the court when Justice Alito was confirmed in early 2006. Over the years since then, she developed dementia. Yeah, I think 2018 is when she said she was withdrawing from public. And so, we certainly hadn't seen any of her since then. I don't think she'd been super public for a few years prior to that withdrawal either, and maybe some stuff here and there, but I think she had gradually been reducing her appearances. But for a really big chunk of time, she was the most powerful justice on the court. She was really at the middle of the court. It was the O'Connor court before it was the Kennedy court. She provides decisive votes in any number of huge cases.
Will: Mm-hmm. And of course, the first woman on the Supreme Court. I think for a lot of this time, people would have called her the most powerful woman in America.
Dan: Yes. I think that seems clearly right. Amazing career. She goes to Stanford Law School. Famously, when she graduates, she's unable to get a job in private practice. She's just offered positions as a secretary. But ultimately builds a career for herself as an attorney and then subsequently becomes a state senator, then becomes a state trial court judge, then a state intermediate appellate court judge. This is all in Arizona. And then, Ronald Reagan 1980 campaign for president, promises to appoint the first woman to the Supreme Court. And he looks far and wide and ends up--
I think that at the time, there was a relatively small pool of plausible candidates who were Republicans. He wasn't going to appoint a Democrat and who were women and who had judicial experience or some other experience that would have made them a plausible Supreme Court pick. And so, she gets the nod. Certainly, had an impressive career on the court for 24 years, something like that, and plays a pivotal role in a bunch of important cases.
I think a lot of people criticize her jurisprudence, nerdy law types like us who know really clear rules, and she was more in the kind of Kennedy case-by-case common law judge mold, probably more so even than Kennedy was. There's an interesting paper I read once. Did you ever see this, Will? It's an article about authorship of supreme court opinions and ghostwriting by Jeffrey Rosenthal and Albert Yoon, where they did this kind of language analysis. And this paper is more than a decade old, so it wouldn't surprise me if the state of the art has moved on since then.
But they went through them, and they tried to identify which Justices had the most distinctive style term to term, suggesting they did more of the writing themselves and whose styles, use of words, various markers that this algorithm looks at, which were most variable term to term. I think they concluded that Justice O'Connor's were the most variable. Justice Kennedy's also were considered pretty highly, pretty variable. One plausible but not inevitable thing you can infer from that is maybe that she was leaning more on her clerks and doing less in the way of authoring them and revising them herself as compared to somebody like Justice Scalia who's going to have a clearer voice that comes through potentially. What did you make of that?
Will: Well, you might imagine that there's a tradeoff, sort of. When your votes are really consequential because you're the swing vote, you might imagine that your job is to pay more attention to your votes. The other way of putting it is if you're Justiça Scalia, and your votes are overdetermined because you're on a side of the court where anything the court is wondering about, you're pretty consistently on one side, even if there are other cases, the court's not taking that hard for you, so you've got to make a name for yourself through what you say. Or, if you have a-- I don't mean this as an insult, but you have a slightly more political approach to the job, like if you think of the job more the way like a governor or a chief legislature would think of their job, that's a pretty normal way to proceed. You get all sorts of drafts from your team, and a big part of your job is to-- [crosstalk]
Dan: Compromise.
Will: Yeah. You have to make sure you control the vision, and you have to exercise judgment about when you go which direction. But we don't expect Joe Biden to be penning his speeches himself or all the drafts to have the same voice, right?
Dan: Yeah. That's fair. That's one plausible hypothesis. Looking at the chart in this paper, one thing that does stick out is that Justice Thomas though, he's someone who doesn't fit into that hypothesis that you offered. He actually has a fairly high variability score very close to Justice Kennedy's and just a bit below, bit behind Justice O'Connor's. And he's someone who's not in the middle of the court, not doing compromising at all, just stating out his views.
Will: Yeah.
Dan: So, does that suggest clerks play a bigger role for his opinions? Possibly, maybe yes, maybe no. Certainly, I would say is a less distinctive style than Justice Scalia.
Will: Right. But maybe also some of this is-- Yeah. If you don't cultivate a distinctive style and if you have some kind of a mavericky streak, which Justice Thomas does in his very different way and Justice O'Connor did, I don't know, maybe those two things combined make it show up differently. I'm not sure. So, this is kind of related. I don't know if you saw this post from Rick Pildes. I think a tweet on the website formerly known as Twitter that referenced some earlier things he'd written about the concept of judicial courage. But he wrote after Justice O'Connor died that, "Justice O'Connor embodied judicial courage, as I define it. It's not casting votes you believe right that are "unpopular;" it's doing that when they are unpopular within the reference groups you rely on for validation."
And so, what made Justice O'Connor different, he thought, than somebody like Justice Thomas, who casts plenty of unpopular votes, is that she didn't have a team of people who thought everything she did was right. Both people on the right and the left were mad at her a lot. And that's, as he said, she did what she thought was right and did not care about criticism, including from within her own camp.
Dan: I think that's really important. I think that's right. I'd want to think a little bit more about exactly who the audience was that she would have been speaking to at that time and who were the kind of people she would have looked to or not looked to for approval. But I do think, in the bigger picture, it captures something. I think that's important about the current state of constitutional law in that we have these increasingly polarized legal spheres that are going to cheerlead and criticize particular Justices as the case may be.
I've written this elsewhere. I think that's a real problem because it means that there's increasingly few Justices who can hold together that middle, establish some legal common ground, which I think is necessary for there to be a rule of law, some common ground which we can all, or at least enough people on both ideological sides can agree that the law dictates rather than just having the democratic version of the law and the republican version of the law.
Will: Yeah. Who do you think--? We could do this with numbers, but that'll be boring. From your watching the court now, who has the most courage in this sense? Who's the Justice who is the least in a box?
Dan: The Chief, right?
Will: I think that might be right. Yeah.
Dan: He enraged people just with the one vote in the NFIB v. Sebelius, the healthcare case. [crosstalk] That alone, I think that answers the question without knowing anything else.
Will: In Dobbs, he didn't even vote the wrong way, so to speak, but he didn't join it and people-- [crosstalk]
Dan: Yeah. Does courage matter when your vote doesn't matter?
Will: Well, fair enough. Fair enough. Maybe not.
Dan: Because it mattered in Sebelius and it mattered NFIB.
Will: Right. Yeah, maybe it doesn't matter as much when your vote doesn't matter. Then also, well, what's the point of people hating you if you're not even accomplishing anything? But it'd be different. There are some Justices who are like that. Justice Blackmun is a republican appointee, and had plenty of votes that enraged the right, but he had so many votes that enraged the right that he's just welcomed by the left.
Dan: Yeah, he becomes a liberal.
Will: I take it the Chief has not managed to complete that circle and has no interest in completing that circle. So, he still writes students for fair admissions and other opinions that make liberals mad too. The other funny thing, it's very different from the version you described is Justice Gorsuch. Nobody would call him a moderate or part of a sensible coalition or anything like that. But he's the other Justice who has high stakes, like Bostock, maybe McGirt in the Indian cases, he's willing to piss off his team. Even, all these conservative politicians started writing like, "We shouldn't be textualist anymore because of Bostock opinions." Like, it was a real--
Dan: Yeah.
Will: Yeah. Maybe that takes courage, I don’t know.
Dan: Yeah. I don't know how much the Indian law cases fit into this because I feel like they're decidedly of secondary or tertiary importance to the big audience that cares the most about these things. I think the Fed Soc industrial complex that you deny exists, I think that there's maybe a little bit more of an eye roll towards the Indian law stuff. Bostock, yeah, totally different story. A lot of folks were really mad about that and thought that he had hoodwinked them. He's not a conservative.
Will: Yeah. I guess if it's just Bostock and it's a one off, then that's different then, if that becomes a theme. Well, Justice O’Connor’s-- [crosstalk]
Dan: Will, can we say one other thing?
Will: Oh, yeah, go ahead.
Dan: Did you remember that former Chief Justice Rehnquist proposed marriage to her?
Will: Oh, yeah.
Dan: Yeah, this is something that-- It was known for many, many years that they had dated in law school, which I don't think it's just a coincidence. I think he had actually put in a good word for her with the regular administration. So, it make a little bit more sense. But he had been first in the class, she graduates third in the class, I guess. The person who is second in the class is lost to history, or at least is not on the Supreme Court.
Will: His name is known. I just forget. Yeah.
Dan: Okay. Yeah, see, exactly. That's the point. That's the point.
Will: [laughs] It's not lost to history.
Dan: Yeah. I'm sure somebody knows, but you don't know and you don't care. But in 2018, someone who's writing a biography of her found these letters, including one from Rehnquist, where she was already dating John O'Connor, and Rehnquist was like, "Can we get married this summer?" Because she declined or pocket vetoed that suggestion.
Will: Yeah. I saw somebody make the know counterfactual history point also that, of course, had she said yes, she would not be on the Supreme Court.
Dan: Yes, that would have been-- [crosstalk]
Will: Rehnquist almost certainly would have been on the court the same way. And then, a point having the first female Justice be the wife of somebody who's already in the court, probably would have been seen as not--
Dan: Yeah. That would have probably not been the right way to make that first.
Will: Yeah.
Dan: So, a good long-term play. I've been using-- I promise this is relevant. I’ve been using AI to make Muppets out of Supreme Court Justices.
Will: I know.
Dan: This is like our dynamic. You were texting me about Article 3 and collateral estoppel and stuff, and I'm just like, "Shut up. Can I just show you these Muppets?" But I think Twitter/X, people that are still on there, enjoyed them.
Will: Some people enjoyed them.
Dan: Nobody said they didn't enjoy them. You didn't enjoy them?
Will: Not really.
Dan: Really? Why?
Will: I don't know. They're too frivolous for me.
Dan: Do you think everything has to be substantive all the time?
Will: No.
Dan: You don't think we can laugh at--? They were loving. I wasn't mocking the Justices. They're loving.
Will: It's a little mocking.
Dan: It's not. I did it to everybody. So, I have a really good one for Justice O'Connor. But my sense is maybe it's too soon to release that one into the wild.
Will: Ah, I don't know, it might be right.
Dan: Okay.
Will: It might be right.
Dan: Maybe people can tell me. But it was like that one came out as well as probably better than any of the others.
Will: The Scalia Muppet was pretty good.
Dan: Yeah. Even you can appreciate that a little bit, a little tiny bit?
Will: I'll grant you that.
Dan: Okay. I'm so disappointed that you don't like funny stuff. Are we allowed to joke about Supreme Court Justices at all?
Will: No. Sure. Of course. You're allowed to do it. I don't disapprove. I didn't think you were being disrespectful or anything. And if you're being disrespectful, it'll be fine. But I just--
Dan: Do you think we should just--? In your perfect world, we would maintain this air of seriousness at all times?
Will: No, no. I like jokes.
Dan: Okay. Just not that one.
Will: Was it a joke? [crosstalk]
Dan: no, it's just meant to amuse people. I think people liked it. Got a lot of likes.
Will: Yeah.
Dan: So disappointed you don't like my creations. All right, other stuff.
Will: Should we talk about some shadow docket?
Dan: Yeah, little shadow docket going on.
Will: I think on the day we released our last episode-- I think it was on the day we released our last episode about this scope of the injunction, statewide injunction, I guess rather than nationwide injunction question involving the Hamburger Mary's establishment in Florida. I think shortly after our episode came out, we got a ruling from the court, right?
Dan: Yep. And as a reminder, this is cert petition where the state of Florida was coming to the court and asking the court to narrow the scope of an injunction that had been granted by district court against Florida's new law, which is about prohibiting certain kinds of adult live performances which are defined as sexually explicit shows that would be obscene in light of a child's age. And so, this is going to be commonly referred to as the anti-drag show law.
There was an injunction. Florida went to the Supreme Court but did not brief the merits. Just said, "Look, we want you to come in and all we want you to do now," this is a preliminary stage, "is narrow the injunction. You can keep the injunction in place against the law with respect to this restaurant." But the district court has purported to enter in a universal injunction against the application of this law statewide. Please fix that.
Will: And their theory, which was sensible, was basically, "We don't think this establishment is violated in the law anyway. So, we don't think they should get an injunction, but we don't care so much. But there might be some establishments that really are endangering the morals of children, and we'd like not have that off the table while we're waiting for this to get ironed out." I love the disposition of this. So, the application of the stay presented to Justice Thomas and by him referred to the court was denied. Justice Thomas, Justice Alito and Justice Gorsuch noted that they would grant the application for a stay, no opinion.
And then, there was a statement of Justice Kavanaugh, with whom Justice Barrett joined, except for footnote one, respective to denial the application of the stay. I think nothing exactly new in here, but there are a lot of reminders of interesting aspects of the court's remedies in shadow docket practice.
Dan: Can I say one totally frivolous thing?
Will: Sure.
Dan: Which is that usually in Supreme Court opinions, where there is only one footnote, the court assigns an asterisk to them rather than having them be numbered.
Will: Good point.
Dan: This seems to be a mistake or maybe some-- [crosstalk]
Will: Well, yeah.
Dan: Maybe some Kavanaugh preference? Because there’s footnote one, but there is no footnote two.
Will: Yeah. I wonder if it's just a mistake in numbering or if there used to be footnote two that was deleted--
Dan: Yeah, they didn't.
Will: And just forgot to renumber.
Dan: Is that possible?
Will: No, that's a great catch. That's not frivolous. That's the kind of deep cut Supreme Court opinion analysis people count on us for.
Dan: Yeah. That's why they pay me the big bucks to do this podcast.
Will: I thought you were going to do another Muppet thing.
Dan: I have actually tried pretty hard to get a Kavanaugh Muppet. He's just a little bit too much a generic-looking white guy. The AI that I'm using has not succeeded in giving me something distinctive.
Will: He's Muppetproof.
Dan: Yeah. the Barrett, I've got an okay one. Again, not great. So, I haven't done anything with those.
Will: Justice Kavanaugh makes two points, one of which I think we mentioned before. I'm predicted, and one of which maybe we didn't. One point he makes that we mentioned before was that, this is a first amendment case and potentially that makes the issue more complicated, because the First Amendment has its own rules of overbreadth where it's like in First Amendment terms, sometimes more okay to grant relief to nonparties because the First Amendment has done special doctrines, which Justice Thomas has criticized, which are not impervious, but just make the whole thing, as he calls it, an imperfect vehicle for considering the general question of when the district court can join nonparties.
The other point he makes resurrects a view he and Justice Barrett articulated a couple years ago in one of these vaccine candidate cases about the shadow docket, which is that, the court should-- a preliminary question in granting, an injunctive relief in these cases, is whether the issue is cert worthy. So, if the issue is not cert worthy, then the fact that you seek an injunction doesn't make it cert worthy.
So, those two points together mean, this is a bad vehicle for the nationwide injunction question. Therefore, the nationwide injunction question is not or statewide injunction question is not independently cert worthy in this case. Therefore, I'm not going to vote to grant it. I take it even though he or Justice Barrett or both might ultimately think you should stay it.
Dan: Yeah. Basically, put differently, he's saying, "We're not going to do error correction on the shadow docket. We're going to scrupulously maintain the standard that we only provide this extraordinary relief in aid of our ultimate certiorari or appellate jurisdiction," which certainly does not plausibly describe many of the court's practices, at least in some cases over recent years. We can certainly identify many places where it looks like the court intervenes to do something on the shadow docket in a case where the underlying, basically-- what's going on is someone is saying, "The district court did something crazy. You're not really going to grant cert on this big issue, but can you just fix it?"
Will: Right. Well, scrupulously, maybe giving them too much credit, but I do think when Barrett and Kavanaugh issued this earlier opinion in Doe v. Mills or Does versus Mills, I think that was seen as a reset and a break from what they've been doing. So, I do think since then, at least those Justices have been a little more abstemious about error correction on the shadow docket. But there's also the problem that the court does sometimes just grant cert for error correction. Like, there are both summary reversals and just like, "This is crazy, and the SG wants us to grant cert, so we'll grant cert type cases. The state wants us to grant cert." So, it's like we still will do error correction on the shadow docket. It just has to be error correction of the kind of error correction that we do on the cert docket, which is unprincipled and hard to totally predict.
Dan: Yeah. Now, I think if you're Florida, you kind of hope here that even though you're not squarely bringing the merits in front of the court now, I presume the strategy there would be let's wait and do that when we're really prepared to do it, because we don't want to risk getting a bad ruling on the merits question now when we haven't lined up all our ducks. But maybe you still hope that the merits are such that they might cause some of the conservative Justices to want to give you this relief. And certainly, new Florida did get three votes here.
Will: Yeah. And you might want a different defendant. I don't know, in free speech cases, it sometimes matters a lot what the facts are.
Dan: Yeah.
Will: That seems to frame the court's intuitions about the breadth of the law.
Dan: Yeah. The Hamburger Mary’s in St. Louis closed during COVID, by the way, [crosstalk]
Will: You tracked it down?
Dan: Yeah.
Will: You got to go to Kansas City?
Dan: I guess. Although their website is clearly very out of date, so I have no idea which ones are actually open. Maybe this is the only one.
Will: Yeah. And then, there's also footnote one, which I enjoyed, which is where it should be footnote star, as you say, where Justice Kavanaugh says that, "Importantly, the issue, the nationwide injunction issue or the statewide injunction issue, is distinct from the issue of a court setting aside a federal agency's rule under the APA." [crosstalk]
Dan: Which is presented in this case?
Will: No.
Dan: Why is this footnote here? It has nothing to do with-- This is an APA case? This is an administrative law case?
Will: I think this has nothing to do with the APA.
Dan: This is just completely irrelevant, right? I mean, it's not irrelevant, but it's wildly wild dicta.
Will: Yes. I think there's signal and countersignal. I think it's like, "To the extent you're reading this opinion as showing my potential interest in the nationwide injunction issue, that's correct. But I'm not interested in the APA issue. I think the APA is totally solid."
Dan: He's not just saying it's a different issue. He's just very clearly saying, "I totally disagree on the APA. The APA, you can definitely do this. You can vacate rules," which is not everybody agrees with. I think Justice Gorsuch seems to disagree with that.
Will: Yes.
Dan: Based on his opinion in the Texas case.
Will: Yes, exactly. Kavanaugh and says, "As a leading article explained," and then tries to rely on Jonathan Mitchell's the rid of erasure fallacy, one of the font of these arguments to support his view that the APA is different. So yeah. But what's also great about this is then Justice Barrett refuses to join it. So this must have been very important in it, because Justice Barrett is much more open, I think, expressed her openness in the past to the concerns about the understanding of the APA.
Dan: Yeah. My colleague, our most diligent listener, Ron Levin, said that what Justice Kavanaugh says is, "This footnote is correct. He is on record as vehemently disagreeing with John Harrison's position, which is the basis for the argument to the contrary." So, score one for Professor Levin.
Will: Yeah, he got Kavanaugh's vote.
Dan: Yeah. But he cites to a well-known article by Mila Sohoni, also a listener of the show. We've talked, maybe over the summer, talked about that article, the power to vacate a rule.
Will: Mm-hmm.
Dan: Interesting stuff. What else? We had another, perhaps less consequential shadow docket thing, but this is-- How do you say this? Do you just say the whole name, E. I. du Pont de Nemours & Co. v. Abbott?
Will: I'm just going to say DuPont v. Abbott.
Dan: Okay. Is that the full name of the DuPont chemical corporation or something?
Will: Yeah, I think so. Justice Kavanaugh just calls it-- Sorry, Justice Thomas, in his opinion, just turns into DuPont.
Dan: Yeah. Just calls it DuPont.
Will: I think it's just DuPont.
Dan: Yeah.
Will: The chemical company.
Dan: Okay. That's a lot better. And so, this one is interesting. This is a complicated civ pro fed courts issue. Plaintiffs in this case are suing DuPont on behalf of a class of 80,000 people for Pont's discharge of a chemical that I'm not going to try to pronounce here. I don't know, maybe I should. Perfluorooctanoic acid into the Ohio river. This is one of these big mass torts. There's allegations that this caused all these terrible things, diseases and so forth. Okay. These cases all go into an MDL, the multidistrict litigation, which is this special procedure. This is kind of a civ pro thing. Do you talk about these in fed courts when you teach it at all, Will?
Will: I don't. I don't talk about the fed courts or conflicts, but also, I'm wondering if I should start.
Dan: Yeah. They're very important.
Will: Yeah.
Dan: Basically, what happens is, different cases, it's not like a single class action. Like, there will be a bunch of different cases filed over the country. Rather than consolidating them as a class action, they'll bring them together. There's this panel that picks one court somewhere in the country and brings them together to address a lot of the preliminary common issues so that the cases can be resolved most effectively. They have these bellwether trials where you pick a few of the cases and you decide them up front. And those are supposed to clarify and sort of make this administratively simpler in resolving the rest of the cases. So, little different--
When these happen, you're not conjoining the cases such that the resolution of one case automatically resolves all the claims, but it's somewhere in between, like a series of individual actions and a single class action.
Will: Yeah. And often, these facilitate settlement. They allow you to resolve a bunch of pretrial issues globally for everything. But in some cases, like this one, maybe the trial does let you resolve the other trials. So, this gets us to the issue that DuPont was complaining about, thinking of cert petition by Paul Clement, and that attracted Justice Thomas's attention, which is that the district court-- [crosstalk]
Dan: We should have said Justice Kavanaugh would have voted to grant this petition as well.
Will: Yeah.
Dan: So, we have a dissent by Justice Thomas, and then we noted that Justice Kavanaugh would have granted, but he doesn't endorse Justice Thomas' dissent.
Will: Right. Well, we know Justice Kavanaugh wants to take more cases. So, I'd be interested. It might be he's often a vote to grant. I don't know.
Dan: Yeah.
Will: After DuPont lost some of these bellwether trials, the district court concluded that DuPont was collaterally estopped from continuing to dispute some of these issues with the new plaintiffs. So, you have like 80,000 plaintiffs or whatever, a couple of them win on some issue, and then the answer is DuPont has now lost on that issue for every other case, not just by those people, but by anybody else in this group. This is called non-mutual offensive collateral estoppel.
Dan: So, non-mutual in that it's not identical party. And it's offensive, so someone is using it against a defendant.
Will: For the plaintiff.
Dan: Plaintiff one establishes some fact against the defendant. Plaintiff two comes in and wants to rely on that finding in plaintiff two's separate suit against the same defendant.
Will: Right. And so--
Dan: Do you teach that in fed courts?
Will: I think that's a classic civ pro question.
Dan: Yeah.
Will: Well, it comes up. Mutual collateral estoppel, that's like the two parties have litigated this, it binds them in the future. That's uncontroversial. I don't think anybody believes in non-mutual defensive collateral estoppel.
Will and Dan: Two of the plaintiffs.
Dan: DuPont wins one case against one plaintiff, and then that automatically means they win all the cases against all the other plaintiffs. Yeah.
Will: Right. A bunch of people are mad at Walmart. Somebody sues Walmart and loses. So, Walmart's immune from future suits. We don't do that.
Dan: Yeah. Unless it's a real class action where that actually does resolve the--
Will: Sure.
Dan: That's a different question that would resolve the claims of all the members of the class.
Will: But in a 1979 case called Parklane Hosiery v. Shore, the court said, "We will sometimes let you do this offensively against the defendant." There's a balancing test and a question about when it's unfair to the defendant, but Parklane Hosiery opens the door to offensive non-mutual collateral estoppel. And Justice Thomas would be willing to reconsider whether that's appropriate in this case, whether this meets whatever the-- exceeds the limits of whatever that is. Okay.
Dan: He seems pretty skeptical.
Will: Yeah. He seems skeptical both of the doctrine generally. He doesn't say this, but I'm pretty confident that he would not have decided Parklane Hosiery the same way. But even within the Parklane Hosiery framework, there are these pragmatic aspects of balancing tests. You could not reconsider Parklane Hosiery but say this goes too far.
Dan: Yeah. So, he thinks there's a due process problem, right?
Will: Yeah, among other things.
Dan: On the due process side, what vision of due process does this fit into? Because he's famously been a skeptic of broad, fuzzy common law understandings of due process. Would there be an originalist grounding, a narrow vision of due process that would let you rule out stuff like this, or is he being inconsistent?
Will: It's a little tricky. I do think this is procedural due process. I do think a pretty well-grounded form of procedural due process is, at a minimum, you should get a chance to prove that the elements of the offense were not met.
Dan: But even with procedural, I don't think he just thinks it's this free-floating thing that lets you say certain procedures are just unfair, right?
Will: Right. No, but--
Dan: I think he would want something a little bit more grounded than that.
Will: Right. But he might think that if there are elements of a tort that you have a right to try to show that the elements were not met.
Dan: Yeah.
Will: Now, the tricky part becomes there are more substantive cases where maybe we define the elements of the tort to go away or something. That doesn't happen here. So, I don't think you have to confront that harder hypo. But you might think, "Do you have a right to try to fight that element?" Now, the people who believe in offensive collateral estoppel would say, "Look, DuPont had a chance to try to prove this element was not met in the first trial. So, they've gotten their hearing. And just because there are multiple trials, it doesn't mean they get multiple chances, multiple bites of the apple." On the other hand, the plaintiffs get multiple bites of the apple. So, there is a funny dynamic, if 20 people sue and the first 18 lose, and they're not bound by their losses, but the number 19 wins, and suddenly 20 through 80,000 all get to win. That seems like a problem.
Dan: Yeah.
Will: So, it's actually related to the issue we just talked about, because the year after Parklane Hosiery, the Supreme Court has to ask, "Does the same rule apply to the government?" If one person sues the government and gets a law declared invalid or unconstitutional, can they do non-mutual offensive collateral estoppel to let all other people sue the government and get the same thing? And the court, in a case called United States v. Mendoza, says, "No, definitely not. This rule can't apply to the government because the government should have a right in every case to try to prove the law is valid." That case is, the doctrine, is one of the central cases that people make against nationwide injunctions. The nationwide injunctions are effectively just doing non-mutual offensive collateral estoppel for the whole, for everybody.
Dan: Yeah.
Will: And if you can't do that--
Dan: At least in a different doctrinal box, but clearly raise the same considerations.
Will: Yeah. And then, one of the leading defenses of nationwide injunctions by Professor Zach Clopton at Northwestern was to say, "Well, maybe we should overrule Mendoza and say the Parklane Hosiery rule applies to everybody, and so you can do nationwide injunctions whenever you would be able to do non-mutual offensive collateral estoppel." Other people say, "No, Parklane Hosiery is a mistake, and we don't know when you can do it anyway." So, I think this is a great QP. I don't know that it's as clean as some of the things the Supreme Court grants, but it's a great question.
Dan: Can I actually use that as a segue just to go back and ask a question about the Hamburger Mary’s thing?
Will: Yeah.
Dan: Which is just that, in a case like that, when you're trying to get that kind of injunction that applies against enforcement of the law across the state, what are the stakes? In the sense that if that injunction is ultimately lifted and the law is ultimately held constitutional, everyone who violated the law in that interim period could potentially be subject to-- I don't exactly know what the penalties are, criminal, civil. I don't know, but whatever. Just because there was an injunction in place against a law at the time, if that's later found to be incorrect, would you still be able to be punished for conduct that you did even if you were relying on that injunction?
Will: The conventional view is no. The conventional view is an injunction is a kind of judgment. And so, until it's reversed, it's binding and you have the protection of it.
Dan: Even if you're a not a party.
Will: Well, as long as you're covered by the injunction, even if you're a nonparty covered in the injunction. One of the more interesting claims in the Jonathan Mitchell writ of erasure article is that's false and that an erroneous injunction should not be seen as a get out of jail free card.
Dan: That is my formalist intuition.
Will: Well, but we have these doctrines of like estoppel or reliance. So, we sometimes say like-- Look, if a court explicitly said, "You can do this," and then you fool did this, it's not fair to punish you for doing what the court said you could do.
Dan: But that's very narrow. For example, if you're in a circuit that says, "Your conduct isn't covered under a criminal statute," and then you do the thing and then you're prosecuted, and then the Supreme Court is like, "Oh, yeah, that circuit precedent was wrong. You're definitely covered," you go to jail.
Will: Yes.
Dan: How is that different?
Will: Well, it's a little different in that a general statement of precedent versus a specific command to the defendant. Like, the judge has said to the defendant--
Dan: He says, "Don't enforce it." That means you can't go around arresting people for it in the meantime.
Will: Yeah.
Dan: It doesn't say you can't enforce it in the future when the injunction no longer exists, right?
Will: I'm actually not sure what the injunction would say.
Dan: To the extent that the injunction no longer is enforced, it can't have any continued force. So, I assume that what it would mean is, "Hey, state officials responsible for enforcing this law, you can't do anything." That isn't really the same thing as saying like, "Hey, law, you don't exist right now."
Will: Look, I'm with you, but on the other hand-- And I think Jonathan Mitchell's with you. I think Michael Morley is on the other side, and there are some cases on the other side. When the Supreme Court decided in Janus that unions were not allowed to collect agency fees from nonmembers, a bunch of people sued and said, "Hey, for the past three years, you've been collecting agency fees from tons of nonmembers." They bring a class action like the day after Janus to try to get back--
Dan: Why was it just three years? Hadn't it been going on for decades?
Will: The statute of limitations.
Dan: Statute of limitations. Okay.
Will: Within the tort of property, statute of limitations. And in every circuit, and I thought those claims should succeed. Eugene Volokh and I wrote an article saying those claims should probably succeed.
Dan: But these people should get back.
Will: Yeah, what they were doing was unconstitutional and the Supreme Court made it clear it was unconstitutional. But every circuit disagreed, and every circuit said, "If you acted in good faith reliance on a judicial decision that was since overruled, you can't be sued." They didn't explain why the criminal law thing is different.
Dan: But that was a Supreme Court decision, right?
Will: A Supreme Court decision overruling a previous Supreme Court decision.
Dan: I think it is different if you're relying on a Supreme Court decision, at least the more general principle in criminal law, and not just in the federal context is you have to reasonably rely on something, and it's not reasonable to rely on a district court or an intermediate appellate court. But a final ruling by the chief, either like the attorney general responsible for enforcing it saying they won't enforce it, or the highest court saying it's not covered. Those are reasonable to rely on.
Will: Yeah. Although now, the problem is reasonable is going to be endogenous to the rule. So, if the rule is that while there's an injunction in place, your conduct is protected. And if you think about it, a lot of these injunctions are not very valuable if everything you do during the injunction is like under penalty of reversal or something. If I get a temporary restraining order or something and tells you can't-- I don't know.
Dan: But it means it would mean that you can't be arrested for that time period.
Will: During the time period but potentially--
Dan: Shut your restaurant down.
Will: Right. But potentially, there could be massive, ruinous penalties afterwards.
Dan: Yes. Depending on the law, right? I mean, depending on the law, some laws might not impose retrospective.
Will: Right. Imagine I really am covered by the law, and I bring an injunction saying I have reparable injury. If I have to shut down for a week, my business will collapse and I get the injunction and they say, "Good news. I agree. You have an reparable injury." And I say, well, this is not very helpful, because if I operate under this injunction, I'm still risking the ruinous liability that can shut down my whole restaurant. So, operating is still really risky. I might want to appeal to the Supreme Court or something, so I can get a guarantee I can operate.
Dan: Yeah.
Will: But I can't appeal, because I won. Where do I go to get my reparable injury repaired?
Dan: Yeah.
Will: Nowhere.
Dan: Yeah.
Will: I don’t know, that's tricky.
Dan: That is tricky. But if you're correct, if the law is unconstitutional, then you should ultimately prevail later too. That's at least the formal answer, even if that's not satisfying.
Will: Yes. Right. So then, where this really matters is all the cases that are in the zone of ambiguity. This is really just very similar to the strategy in [unintelligible [00:38:52]. It's not a coincidence that they're emanating from the same person, same article.
Dan: It's an article with a lot of ripple effects.
Will: Yeah. It's an amazing article.
Dan: Yeah. Okay. So, it took us a little afield of where we were, but I think-- Was that everything we wanted to say about that?
Will: I think so.
Dan: From--
Will: I saw a post. Now, I'm having trouble finding it. I think it was by Abbe Gluck on balkanization. Abbe Gluck, Professor at Yale, praising Justice Thomas's opinion here. Just noting that this is one of the first opinions where a Justice showed interest in the MDL process. Like, the MDL process is huge.
Dan: Yeah. Lost like billions of dollars every year.
Will: Billions of dollars. And the Supreme Court basically ignores it. There are very few Supreme Court cases about any of the issues that come up there. A cynic might say it's not a coincidence. It's like some area safe from the Supreme Court Justices, so we can-- But just noting that MDL has grown, and it's good that the Justices are noticing that and maybe a little side, it's working fine and doesn't need any intervention. I mean, it does, but that was an interesting point.
Dan: Yeah. All right. I think that brings us to our opinion in Acheson?
Will: Yeah.
Dan: Okay. So, we do like talking about opinions. For better, for worse, this one is going to be quite short, but we do have some separate writings that we can talk about. Well, let's talk about the actual majority opinion that we got. And just as a reminder, this case is about one of these ADA testers, someone who is disabled, Ms. Laufer. She goes around and looks at the websites for hotels all across the country. And sometimes, she says she has some theoretical hypothetical plan to go visit that area. And then, if their websites don't comply with a rule requiring them to provide information about disability status of their accommodations, she and her lawyers sue, and then they offer a $10,000 settlement option. This has been a big cottage industry for her attorneys.
That happened in this case, sued this particular hotel. But then things got complicated. It turns out one of her attorneys, not the attorney involved in this case, but one of her attorneys involved in different cases, was doing some unethical stuff, got sanctioned. That sanction order did cast some doubt on one of her attorneys in this case below. And then, after cert is granted, case is in the middle of the briefing process, she decides, "I just need to get rid of all these cases," and goes around dismissing them all, including the one that was before the court.
Will: Yeah.
Dan: And so, at the argument-- Everybody agrees that makes the case moot, right? Moot. There's no live controversy. And the normal thing to do with the moot case is just to get rid of it. But the complication here is here, that's a jurisdictional issue. The issue that the court had granted was standing. Whether a plaintiff, actually an ADA tester like this who doesn't have any immediate plans to go actually stay at one of these rooms, has Article 3 standing to bring suit, that is also a jurisdictional issue. And the court has said that if there's multiple jurisdictional issues, they don't have to do mootness first. They could do standing first. They can't do the merits. Instead of doing jurisdiction, you got to do jurisdiction first. But among jurisdictional issues, you can do either one.
And so, the argument, a lot of it really boiled down to trying to figure out whether they should just go ahead and resolve the standing question on which they had granted cert, or just decide to punt the case on mootness and save that for another day.
Will: Yup. And so, by a 9-0 vote on the judgment, a 7-2 vote on the opinion, the court decides to decide mootness first. They say, "We can address them in either order." On the one hand, Ms. Laufer says mootness is easy and standing is hard. On the other hand, Acheson hotels says, "The standing issue is the reason we took the case." And although Laufer's case is dead, the circuit split is very much alive. I like that.
Dan: Circuit split created by Laufer herself, right?
Will: Yes, exactly. The court says, "We are sensitive to Acheson's concern about litigants manipulating the jurisdiction of this court. We are not convinced, however, that Laufer abandoned her case in an effort to evade our review. She voluntarily dismissed her pending ADA cases after a lower court sanctioned her lawyer. And she has represented she will not file any others. Laufer's case against Acheson is moot, and we dismiss it on that ground. We emphasize, however, that we might exercise our discretion differently in a future case. Vacated as moot."
Dan: Okay.
Will: Yeah.
Dan: Did this surprise you?
Will: No.
Dan: I think that probably was the way it was going to come out. I did think there might have been a little bit more interest in resolving the standing question. So, Justice Thomas is going to say he wanted to do that and conclude there was no standing. I don't know, I thought the Chief actually seemed pretty concerned about the manipulation of the court's jurisdiction.
Will: Yes.
Dan: And so, I thought you might have been able to peel him off.
Will: Yes. I thought there would be a non-zero number of Justices doing that, and I would have predicted the Chief would be one of them. But in their hand, the way-- That paragraph is carefully worded, I think, to satisfy somebody who has those concerns by implying, "If you are manipulating our jurisdiction, that's very bad. And if we think you're manipulating our jurisdiction, we're not going to fall for it. But in this case, we're going to give it a pass because we think you're not, but don't try this again."
Dan: Yeah. Although it's unclear why that should be the dispositive thing. I thought that Acheson's attorney, Adam Unikowsky, who we've talked about a lot on the show, Substack, made pretty good arguments for why it would be hard for another one of these cases to get to the court if they don't resolve it now. Basically, someone would have to-- A sort of complicated series of events would have to happen, and you'd have to have a defendant who is really willing to go all the way with a case. And so, it may be a while before this gets back. Maybe it won't ever get back. But for whatever reason, the court didn't find that dispositive.
Will: Yeah. Well, they may also think that the combination of this opinion and Justice Thomas' concurring opinion, which does address the standing issue, might also be enough guidance to the lower courts that they'll back off.
Dan: Even in lower courts where there is circuit precedent.
Will: [sighs] I guess the district courts in those cases probably can't.
Dan: Yeah.
Will: I'm not sure, but maybe.
Dan: Yeah.
Will: Yeah.
Dan: Okay. So, two different directions that the separate opinions are going to go.
Will: Right. So, Justice Thomas would go further. He would just have the standing question and he explains at length why he thinks that Laufer does not have standing. Did this surprise you? Justice Thomas is sometimes the wild card pro standing vote. In cases like Spokeo and TransUnion< he has the broadest pro standing view on the court. He's dissented from these constitutional limitations on standing. But here, he's leading the anti-standing charge.
Dan: Yeah, I guess I hadn't thought that through very carefully. I didn't think had a prior that he was going to do something pro standing in this case. So, this one didn't surprise me, but I can see how there maybe was an argument there.
Will: Yeah.
Dan: But this case does have a real-- This case seems to have a strong ideological valence.
Will: Yeah. Although so did TransUnion and Spokeo.
Dan: Yeah.
Will: It didn't surprise me, because there's an 11th circuit Judge, Kevin Newsom, who I think the world of, who has two major standing opinions as a lower court judge, one of which is a Justice Thomas style anti Lujan pro statutory standing opinion saying, "Article 3 is not a basis for striking down statutory causes of action." So, he's with Justice Thomas on that prong. And then, he also had a Laufer opinion in the 11th Circuit, Laufer case, saying, "But this is different, because this is essentially a plaintiff trying to take the executive power upon themselves to act as a private attorney general," which is bad because we have an actual attorney general who's part of the executive branch and is in charge of enforcing federal law.
Dan: Is it because the rule comes from-- the cause of action, kind of comes from the thing that's being alleged as a violation comes from a rule, rather than comes from something created by an act of Congress?
Will: I think it's also that it doesn't create any damages or any other private right in plaintiff. I'm not sure I totally follow this exactly. But the idea is that the ADA has not actually created some legal right that is protected here. Yeah, maybe there's a little bit of the rule thing and a little bit of the remedy thing. I confess when Justice Thomas wrote it out, I was confused why these were standing arguments rather than merits arguments, because some of them felt like merits arguments.
Dan: Yeah. And so, he says this is different than the court's precedent< Havens Realty, where there the court said that testers where you have these people trying to enforce civil rights laws, right?
Will: Right.
Dan: You have white testers, black testers, they go talk to people renting property, and then the renting agents tell the black testers, "Oh, we don't have any rooms for you to rent." The court had said those testers can sue to enforce the fear of housing act even if they had no intent to actually rent the property. They're just testers. The theory there being that they are nonetheless themselves being discriminated against by being given this false information. They're experiencing discrimination.
So, I feel like a lot of what was being argued about in this case, like on the merits of the standing issue was about, is the injury just not having the room ultimately? Or, is the injury not having the information necessary to determine whether they have the room? Because it was far from clear whether there was an actual subsidy violation of the ADA. Like, maybe the hotel didn't have to have disabled rooms, disabled accommodations. They didn't, but here it was just about this informational requirement designed kind of to help facilitate the actual underlying protections of the ADA.
Will: Right. And so, Justice Thomas says the difference is the Fair Housing Act expressly says you have a right to information. It expressly prohibits representing to a person because of race that a dwelling is not available when such dwelling is in fact available. And the ADA is different because it doesn't have that right.
Dan: Yeah. Would it be different if the ADA just said it's discrimination to not give people information that is necessary for them to make an informed decision if they're disabled? It's a little different, because they're not giving false information to one person and discriminating in who gets the information. They're just not giving information to that disabled people might want.
Will: Yeah. Here's why I have trouble tracking it. Justice Thomas says even if there were such a right because there's this regulation that wouldn't be enough, because Laufer doesn't have a violation of her own rights with regard to that information, because she has no intention of going to Maine.
Dan: Yeah. But that would seem to resolve the Havens Realty thing too, right?
Will: I think so.
Dan: Is it because--?
Will: It's on the internet instead of in person?
Dan: Yeah. He still thinks there's not discrimination, there's not an injury. There is an injury if you're actually discriminated against, but it's not. Yeah, I don't totally understand.
Will: Now, I do think an injunction might be an inappropriate remedy in a case where you have no intention of visiting it, because there's nothing to enjoin.
Dan: And there are no money damages-
Will: Under the ADA.
Dan: -here.
Will: Right. I'm not sure. Maybe there is money damages in the Fair Housing Act. So, maybe that distinguishes it. On the whole, Justice Thomas's opinion convinced me, standing issue was kind of hard.
Dan: Yeah.
Will: [laughs]
Dan: So, the court was right to not resolve it. Although, look, if the court had resolved it and we had more opinions on it, we had a dissent fleshing it out, we had concurrences. Maybe it would still seem hard, but maybe we would be less confused.
Will: Right. And once Justice Thomas has written the opinion also, if you agree with it, some [unintelligible [00:51:33], then it wouldn't be hard to just say, "Okay, sign me up."
Dan: Yeah. So, you're not ready to sign up.
Will: No. I did not spend as much time trying to think it through as I hope the Supreme Court Justices did.
Dan: Yeah.
Will: But it doesn't track as easily as I thought it would.
Dan: Yeah, it does to me, just turn a lot on how we conceptualize. What exactly this cause of action is, what exactly the violation is, does it create a right? Who has a right? What is it? That does seem like a merits issue. Okay.
Will: Then, we have Justice Jackson.
Dan: Yeah. So, she's got this--
Will: Hobby horse. [laughs] Yeah.
Dan: This is something that used to be a thing I like talked about a lot, podcasted about, and tweeted about and now I feel like it's gone mainstream, which is Munsingwear.
Dan: [laughs] Yeah. You were into Munsingwear before it was cool.
Will: Yeah. Now, I'm kind of over it. We'll talk about why in a second. But Munsingwear is this doctrine where the court sometimes will say like, "If a case becomes moot on the way to us, on the way to Supreme Court review, then sometimes we will exercise our discretion to take the lower court opinion off the books to vacate the lower court opinion."
Will: Right. And in particular, moot through no fault of the person who wanted to appeal it.
Dan: Yeah.
Will: It's sort of related to the court's initial concern about manipulating our jurisdiction or something like, "Lower court [unintelligible [00:53:01] dubious, somebody wants us to review it. If we lost our chance to review it, then maybe the lower court opinion is suspect and should be taken off the books."
Dan: Yeah. It's something that they don't do automatically anytime there's some pending cert petition that becomes moot. Certainly not. They do it sometimes, and it does seem correlated with cases where you can strongly suspect that the majority would have wanted to ultimately overrule what the lower court did. I've talked about in the past, the case that I wrote my 9th Circuit case, I wrote my law review case comment on Harper out there, Reinhardt ruling really taking First Amendment law for students in a weird direction. Very strong reason to think the court would have reversed. Case becomes moot, student graduates from high school, and the court issues a Munsingwear order. But you can find other cases where it's just an ordinary case, and the court isn't interested in granting the Munsingwear relief.
Will: Yeah. You might think the Munsingwear relief should have a test similar to the Hamburger Mary's test, that if we weren't going to grant cert anyway, there's no reason to vacate it because right to appeal has not really been lost because it wasn't going to be there anyway. But if we were, then we're more likely to vacate it.
Dan: Yeah. That's not a crazy way to think about it. Let's get there in a second. Justice Jackson, for whatever reason, has made this an issue that she cares a lot about. Earlier this year, in March, there was a case called Chapman v. Doe. And in that case, the court did a Munsingwear order. It granted a petition, vacated the judgment, remanded with instructions to dismiss the case as moot. That was a case that had challenged some abortion restrictions below, and then it became effectively-- Dobbs happened while it was pending, and got rid of the constitutional right to an abortion. And then, the parties agreed to dismiss the case on the condition that they were able to seek Munsingwear relief.
The court, everybody agreed to do that, except for Justice Jackson, who said in that case, "I'm concerned that contemporary practice relating to so-called Munsingwear vacaturs has drifted away from the doctrine's foundational moorings." Her view, as I seem to understand it, is not exactly the view that you just articulated that this is like a merits test. Would we want to articulate it? It's like more of a fairness test.
Will: Yes. Or both.
Dan: Yeah. That could be relevant to it. But she says, "This is a form of equitable relief. It's not automatic, and there have to be extraordinary circumstances." She says, "We have to hold the line and limit the availability of Munsingwear vacatur to truly exceptional cases. We can't just do this willy-nilly." Should we care about this?
Dan: Yeah, sure. I feel like there is an ideological overlay to it, which is the majority of the Supreme Court has a lot of opinions [unintelligible 00:56:26] are wrong, and it wants to preserve its ability to supervise those, and not let people let cases get away from it. Justice Jackson probably, on average, thinks that those decisions are right, because she's not in step with the court's majority. So of course, she wants to take a tool out of the majority's toolbox.
Dan: That's why she's doing it?
Will: I think so. Isn't she?
Will: Outcome oriented?
Will: Yeah.
Dan: Really?
Will: Sorry. Is that--?
Dan: No, it's fine. You wouldn't normally buy into that explanation of some conservative Justices commitment to some jurisdictional procedural thing. Certainly, not so willingly and easily.
Will: [laughs]
Dan: Basically, you're just like, "She only does this because she wants to make it harder for the majority to do stuff."
Will: I was trying to both sides it. She may be right, that Munsingwear is like a weird equitable power that the court invented. I'm just saying the reason the court believes in it is because they are thinking about all the willful lower court judges they want to stop, and they're happy to not worry about procedural niceties in trying to stop them. And then, she has a strong reason to care about the procedural niceties here. But maybe not. So, it may also overlap, or I'll try to be more--
Justice Jackson, when she was a District Judge, was one of the leading defenders of the nationwide injunction. She has this very long opinion about how outrageous it is to suggest that she might lack the jurisdiction to enjoin conduct nationwide. She's in the district court that relies heavily on this like lower court decisions are presumptively correct. If you don't like it, appeal it. But they're presumptively correct. And once they're presumptively correct, everybody should follow them. And that's one of her moves here is to say, lower court decisions are presumptively correct. And just since they haven't been appealed, that doesn't make them unlikely to be correct. Just because they can't be appealed, it doesn't make them unlikely to be correct. So maybe, she's just consistently pursuing her strong judicial supremacy in a way, even for lower court judges. That's where it goes from.
Dan: Okay. Thank you for adding-
Will: Is that better?
Dan: -that nuance. Okay. But so, we were just talking about her previous opinion. Now, this is a longer one where she's going to get a little bit deeper into her views on Munsingwear relief, Munsingwear vacatur.
Will: Yeah.
Dan: Can I flesh out her argument here?
Will: Yeah. Her argument is vacatur should not follow automatically for mootness, first of all, because equity involves doing things case by case. And moreover, because lower court decisions are presumptively correct, and so vacating them is presumptively wrong unless there's some special reason to do so. In general, we have a lot of precedent. And then, therefore, Munsingwear can only exist as a special equitable exception to those two. Those two principles would lead you to not Munsingwear. And so, you can only do it when there's something especially unfair about the way you got here. You have to show what harm, other than having to accept the law, as the lower court stated it, flows from the inability to appeal the lower court decision. She does an interesting study of Munsingwear itself, where the harm was actually one of these collateral estoppel type problems, where the inability--
Dan: Yeah. And the court actually didn't grant Munsingwear relief.
Will: Yeah.
Dan: Like, the case that created the term is like a case where they were like, "No."
Will: Wait. Is that right?
Dan: Doesn't Munsingwear say that the government slept on its rights?
Will: Anyway, so she would limit the availability of Munsingwear relief to those kinds of pretty unusual, specific circumstances where there's something going on that creates the unfairness. Not just that it's unfair that you couldn't appeal, the respondent happened to die or something like that, or dropped their case, but that there's some reason that, apart from having lost, there's something unusually bad about having this opinion still be out there.
Dan: Yeah. Okay. Here's why I wonder how much this really matters now, despite having been interested in this. To the extent the dispute is really moot, the opinion below, the judgment below, doesn't really matter. The judgment doesn't matter for the most part. And so, to the extent it matters, it matters as precedent.
Will: Yeah. Although again there are these preclusion cases where the judgment may matter, but okay. So, yes, I agree. It mostly matters as precedent.
Dan: Mostly as precedent. But then if it's just as precedent, whether it's vacated or not, certainly, the court of appeals can just do the same thing again. Maybe it matters in cases where it goes back to the court of appeals and there's a different panel and they get to--
Will: It matters what the district courts do in the interim.
Dan: Yeah, that's certainly true. But the vacated opinion is still going to exist as persuasive precedent to the district courts, right?
Will: Sure.
Dan: I guess I just don't totally know how much of a difference in the world it makes when the opinion is vacated or not.
Will: So, this would be an interesting-- Okay. I would say this would be an interesting study. This would not be an interesting enough study for me to do, but it would be an interesting enough study for me to read if somebody else wants to do it. To look at this, there are a set of Munsingwear cases, and you could look and see there's a pre-grant split, and then the court Munsingwears, and then what happens.
Dan: Yeah.
Will: My guess is that what I think of is like the canonical Munsingwear cases, like al-Marri, that war on terror case in the 4th Circuit that was back and forth between the court and eventually, I think, got Munsingweared are cases where the court is somehow trying to send a signal about which side it's on in addition to the Munsingwear. This would be an example. Like, if you're the first circuit and you get this case back, surely you decide the case the other way.
Dan: I would suspect so.
Will: Yeah. And so, I bet that the Munsingwear the court is interested in are the ones where, in fact, the opinion will not come out the same way second time around.
Dan: Yeah. But just to be clear, some of the folks who concurred in the Munsingwear relief presumably would not concur in Justice Thomas wants in standing.
Will: That’s true.
Dan: I'm not certain, but we've got Justices Sotomayor and Kagan.
Will: But they might also be happy for lower courts to do it anyway, and then the Supreme Court never to take it again. They might care less about the--
Dan: Just because it doesn't create bad precedent even if the outcome is the same?
Will: Right. They don't care so much about the Ms. Laufers of the world and their ability to bring thousands of lawsuits, but more anti-standing cases in the US reports just pile up and create more anti-standing pressure. So, you might be happy to see this go away.
Dan: All right. Well, here, we don't really have a feisty debate about Munsingwear. The majority's analysis of this question-- it's an opinion by Justice Barrett, by the way, I don't know if we said that. Majority's analysis of the question is two sentences. It says, "Justice Jackson objects to this disposition, urging us to instead leave the First Circuit's judgment in place. Our Munsingwear practice is well settled." And then, cites a bunch of Munsingwear cases and then does a [unintelligible [01:03:15] to the Supreme Court practice treatise. "We decline Justice Jackson's invitation to reconsider it." Just like, so little interest in this.
Will: Yeah.
Dan: It could have been more dismissive by putting it in a footnote, I guess.
Will: [laughs] Or not having the citation.
Dan: Yeah. Or just not saying anything.
Will: Yeah. I like Justice Jackson. I think every new Justice should have a couple of these weird hobby horses.
Dan: Yeah.
Will: I think that's good. That's healthy. I remember when Justice Stevens was on the court, he had this hobby horse that's sort of related, about a case called Martin v. United States.
Dan: Oh, yeah. The sanctioning of repeat IFP filers.
Will: Yes. If you repeatedly file frivolous petitions in forma pauperis without paying your filing fees, after three strikes, the court deprives you of your ability to file IFP. You can still file. You just got to pay for it from now on. And that's called martinizing. The court martinizes you. And every time Justice Stevens of dissent, there are tons of these orders in the orders list, and then it's like the reporter's office adds in, but Justice Stevens dissents. Well, that's great.
Did Justice Stevens had anti-Martin hobby horse? I didn't really agree, but he had a point, and it was good to register that there's something a little weird about this. So, I hope Justice Jackson just dissents from every Munsingwear case or concurs, whatever. Just like Munsingwear, Justice Jackson's against it. I think that's nice.
Dan: Yeah. And here, she doesn't formally dissent, right?
Will: Yeah.
Dan: She does concur in the judgment because she says, "I concur in the judgment because the basis of precedent, despite my own views of this practice, because respondents voluntarily-- Voluntary dismissal is the sort of unilateral action that we have previously deemed adequate for vacatur."
Will: Yes, but still.
Dan: Yeah.
Will: Anyway, I hope she makes this a thing.
Dan: We will see. It's already been a thing a couple of times this year. So, probably we will be the last [crosstalk] around this.
Will: She might get bored of it. Yeah.
Dan: What?
Will: She might get bored of it.
Dan: Yeah. But this Munsingwear is now mainstream. It's no longer this nerdy, obscure part of Supreme Court practice that I used to know a little bit about. So, I need to find another one. I need to go digging in the treatise in some other one that--
Will: What's next.
Dan: Everybody on Twitter doesn't already know about.
Will: You should go after relisting or rescheduling.
Dan: The great John Ellwood is up on relisting. Rescheduling is a little bit more obscure.
Will: Yeah.
Dan: What about straight lining? Do you remember this? Curve lining?
Will: Oh, yeah. Straight lining, curve lining, this is like consolidating related cases.
Dan: Yeah. Sometimes, when they know that there's related cases or related issues, someone-- I don't know, the clerk's office or somebody will just lump them together and they could make a case disappear from the discuss list, to disappear listing for extended periods while they're waiting for the other case for which is straight lined. I don't remember the difference between straight lining and curve lining.
Will: One is related parties and one is related issues, I'm pretty sure.
Dan: Okay. Yeah. That’s possible.
Will: Or same issue or related issue or something. One is connected to the other.
Dan: Yeah, I feel like that hasn't really been plumbed.
Will: Yeah.
Dan: All right. I don't even know if there's anything in the treatise about that. We'll find out. Okay. I've got no more to say about that. And that's good, because we're running out of time. Any final words, Will?
Will: No. Take us out.
[music]
Dan: Thanks very much for listening. Despite our frequent delays and our unscheduled and unpredictable nature, if you like the show, please rate and review on the Apple Podcast store or wherever else you get the podcast, and do other things to boost our listenership. Our audience grows slowly but steadily, but it would be great to have it grow more quickly and larger. We do think that there are a lot of people that would benefit from our obscure occasional insights into weirdness of Supreme Court practice.
Visit our website, dividedargument.com, where we have transcripts of the episodes, usually pretty soon after they come out if you don't like to listen regularly. store.dividedargument.com for merchandise with our logo and podcast cover. You can send us an email, pod@dividedagrument.com. We do read all those. Sometimes, we respond. Not always great about that. And you can leave us a voicemail, some famous ones of which have been in song form, by calling 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the Supreme Court for issuing an opinion promptly about something we wanted to talk about.
Dan: And if we don't record an episode for a long time, it's because Will has gotten really mad at me, because I keep creating too many Supreme Court Justice Muppets.
Will: That was funny.
[Divided Argument theme]
[Transcript provided by SpeechDocs Podcast Transcription]