Back in the studio after a couple of fun live shows, we discover that the Court has finally given us too much to talk about. We discuss the new Trump Administration's first shadow docket adventure, a number of interesting solo opinions from the orders list, the decline in summary reversals, and the overall quality of oral advocacy before the Court. We then take a deep dive into the Court's opinion in Glossip v. Oklahoma, a capital case with many factual, jurisdictional, and remedial complexities.
Back in the studio after a couple of fun live shows, we discover that the Court has finally given us too much to talk about. We discuss the new Trump Administration's first shadow docket adventure, a number of interesting solo opinions from the orders list, the decline in summary reversals, and the overall quality of oral advocacy before the Court. We then take a deep dive into the Court's opinion in Glossip v. Oklahoma, a capital case with many factual, jurisdictional, and remedial complexities.
[Divided Argument theme]
Will Baude: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan Epps: And I'm Dan Epps. So, Will, the Court is finally starting to give us some material to work with. It makes our jobs a little easier. We don't have to do one of those argument previews, which are a bit more work. Instead, we can just download some PDFs from the website and give you some medium hot lukewarm takes on them.
Will Baude: Well, it's also it's our first non-live show in a while. I don’t think-- [crosstalk]
Dan Epps: True.
Will Baude: Back in the studio, I think of it, such as it is.
Dan Epps: Yeah, in our respective studios.
Will Baude: Also known as our faculty offices.
Dan Epps: Yes. You should demand a separate studio and the adjoining office.
Will Baude: There was an earlier time when the law school was actually thinking of creating a podcast studio in one of the rooms somewhere in the building.
Dan Epps: Before they realized that the technology was simple enough that with a minor investment, you can just do it in your office.
Will Baude: Yeah. I think mic qualities have also increased. I think there was a time when I was trying to put Styrofoam padding or whatever around my office, try to stop the echoes.
Dan Epps: Just because you hadn’t talked to me and gotten my advice about what to buy. Mic quality has always been good. You just needed to know what to get.
Will Baude: Okay. Me and my mic-- [crosstalk]
Dan Epps: And you need to know how to turn on the right mic, which has been a problem for you.
Will Baude: And you.
Dan Epps: Yeah. That one was also your fault though, because you should have noticed that one.
Will Baude: Well, you should have noticed when mine is off.
Dan Epps: I think I--
Will Baude: By the way, am I on the right mic?
Dan Epps: I believe so. We will hear from the listeners if you are not. But you sound fine.
Will Baude: Yeah. I feel like the studio shows also have a different vibe from the live shows. Even when we don't have a lot of time to call on the audience, I feel like you can tell the difference.
Dan Epps: It's a little higher pressure if we do-- We don't go straight to tape on these studio episodes. We do sometimes do a little editing. Sometimes both of us say stuff [chuckles] that's wrong and then we realize in real time and we say, “Editor, can you fix that?” Can't do that in a live show.
Will Baude: Yeah. No, several people said that we seemed a little more nervous.
Dan Epps: [chuckles] Really? No one said that to me.
Will Baude: Okay. Well--
Dan Epps: Your friends are jerks.
Will Baude: [laughs] I think they…
Dan Epps: Tell them to say it to my face.
Will Baude: Okay.
Dan Epps: Okay. So, lots of little things to talk about that are kind of fun. We had a sidebar article earlier this week by Adam Liptak. It's a recurring feature he does for the New York Times, which I love, because he often engages with legal scholarship in a way that other Supreme Court journalists really don't do. He's profiled one of my pieces. I'm sure he's profiled multiple pieces of yours in that forum.
And here, he is talking about a piece that's actually by a student note by Kalvis Golde or Golde, law student at Columbia, about summary reversals. It's actually interesting. Making the observation that there's been a huge decline, at least by percentages. The absolute numbers have always been relatively small, but a decline in summary reversals at the Court.
Will Baude: Right.
Dan Epps: It's a form of shadow docket ruling.
Will Baude: Right. Summary reversals are when the Court gets a cert petition, and then rather than scheduling oral argument and full briefing on the cert petition, they're like, “Nah, we've seen enough.” They just reverse the opinion right there.
When I wrote the article on the shadow docket, half my article was about the Supreme Court's summary reversals. That was the-- [crosstalk]
Dan Epps: And complaining about how they're inconsistent and unpredictable in those, right?
Will Baude: Yeah. I was both defending the idea of summary reversals. There were some people who thought it was just inappropriate, but then highlighted this idea that the Court was engaged in error correction, but in a hard to chart way, or at least part of what I did in the article is try to chart. Okay, you can now see the AEDPA docket is half of the summary reversal docket. And that makes sense. And then, other things were harder to figure out.
Dan Epps: Yeah. So, that does seem to accord with my general impression. There's no shortage of other shadow docket things happening. But your classic error correction, some revs, as we say in the biz, do seem to have declined.
Will Baude: Yeah. They're down to one a year, from four to six a year.
Dan Epps: It's got to be real embarrassing, if you're the judge who gets the one summary reversal of your decision.
Will Baude: I don't know. We have these judges come through Chicago all the time. Sometimes I ask them, do they care about being reversed? They almost always say no. Now, maybe that's just what you're supposed to say, I'm not sure.
Dan Epps: We had a judge in the building yesterday, Judge Toby Heytens from the Fourth Circuit.
Will Baude: He's great.
Dan Epps: Yeah, who is a judge who had argued a bunch of Supreme Court cases prior to taking the bench. He was an assistant to the solicitor general. He was the Virginia solicitor general. So, a really smart guy. I think our students really enjoyed his visit.
Will Baude: [crosstalk] Did you ask him about summary reversals?
Dan Epps: Mm?
Will Baude: Did you ask him what summary reversals.
Dan Epps: He has not been summarily reversed. But if he ever is, I guess I'll follow up.
Will Baude: Yeah. Now, I would say one thing, is I do wonder if some of the summary reversals have just moved over to other kinds of shadow docket things. Like, when you ask the Court for an emergency injunction stopping the Ninth Circuit's ruling about whatever. There's a way in which that's partly a summary reversal claim. You're usually saying the Ninth Circuit got this wrong on the merits. Just reach out and say, right now, they got it wrong on the merits.
Dan Epps: Yeah. But those are usually very different types of cases. Those tend to be a lot of cases where lower court is granted some kind of injunction and they're running to the court-
Will Baude: Yeah.
Dan Epps: -roll it back versus the kind of core. I feel like, there used to be a lot of criminal cases in both directions. Like you said, the AEDPA cases, the Sixth Circuit or the Ninth Circuit granted relief to some state prisoner on some-
Will Baude: Yeah.
Dan Epps: -ground that really is hard to reconcile with the limits on Federal Habeas Relief in AEDPA, Antiterrorism and Effective Death Penalty Act of 1986. Those aren't moving over to other shadow docket things. Maybe lower courts aren't doing that as much.
Will Baude: Right. That's probably right. Some of them might be moving over to merits things. That was always, some of the cases, end up in the merits docket, and you're like, “This meeting could have been an email. This merits case could have been a summary reversal. This summary reversal could have been a shadow docket emergency ruling.” But some of them may just not happen as much. I wonder if some of this was just that there was a certain amount of slack between the way certain circuits saw the law and the way the Supreme Court saw the law and with new appointments, those are coming into alignment.
Dan Epps: That's possible. I don't know. So, yeah, I don't have a hypothesis, but certainly some of the bandwidth, they have finite time, they've got a lot of other tasks and leisure activities and travel. And so, there just may be a limit on how much non-merit stuff they can do, or at least they're willing to do.
Will Baude: Right. As the merit’s cases go down, also, it may be that-- Anything they can get on the merits docket, it's how good this will justify our April.
Dan Epps: I think it's understood, and some of the Justices have confirmed this offhandedly, that there is a rule or a practice of requiring six for a summary reversal that I do not believe was always the case. I think that's something that may have emerged more recently as the Court gets the partisan ideological divide gets more skewed, it may make it harder to build those coalitions. So, if there's six conservative Justices, you can have six of them to do a summary reversal. But if there's a case that cuts in the other ideological direction, you'd have three liberal Justices and they'd need to find three more.
Will Baude: I guess that's right also. So, my understanding though, is that the way it works is it requires five summarily reverse, except that four can grant. And so, if it's five to four summarily reverse and the four want to put the majority through oral argument, they can force that. But it's not that it takes five votes to do the summary reversal and then it takes six votes to also stop having oral argument, if that's what you want to do.
Dan Epps: All of the others. Yeah. The Liptak article does quote things where Alito in 2021 says, “We have a practice of not issuing a summary reversal unless at least six of us agree.”
Will Baude: Yeah.
Dan Epps: So, there does seem to be some six rule.
Will Baude: I understand Justice Alito said that. I'm just not sure he's totally being accurate about his own rules.
Dan Epps: My understanding was that this was not the rule when we were there as clerks. I heard murmurs that this had emerged after that time period.
Will Baude: Okay. Well, yeah, I do think it's a natural side effect of the four to grant rule that you could-- If you have five summarily reverse and the four say, “Fine, we're going to make use of the oral argument,” and the five are like, “Oh, that's a pain,” but that's annoying for everybody, you could see how then you would, I guess-- [crosstalk]
Dan Epps: But if you have five to summarily reverse four who just want to deny in the rule where the practice requires six, then you just deny, I think in that situation.
Will Baude: Right. Well, I guess what I mean is you could see how it would emerge as an equilibrium that the four-- It's sort of like chicken. Their preference is to deny, but they can't do that. So, they punish the majority by making them sit through an argument in a tedious case that they regard as fact bound.
Dan Epps: Those arguments are now like three hours long. There's no time limits anymore.
Will Baude: Sufficiently wastes everybody's time. If you're the majority that then as the majority you might say fine, we will just agree as a matter of custom not to usually summarily reverse only five, because we recognize that then we'll have to sit through the argument and that's a waste of time.
Dan Epps: That's possible. Well, we need some inside reporting. Maybe we need some leaks, someone like Joan Biskupic can give us a deep dive on this. I am still stunned. This is tangent, but that we've ended up in this world where there's no time limits on oral arguments. It's like we're back in the 19th century when people would come and just talk for hours and hours. It's so different.
Will Baude: It is different. They were longer in the 19th century.
Dan Epps: Weren't they multi day at one point?
Will Baude: Sometimes. Yeah, I think. Yeah, it does seem the order in which they do them is nice in that you sometimes they can call an end to the open questioning by saying, “Okay, let's save that for seriatim questioning.” And then, seriatim questioning at least puts a cap on the time eventually. Yeah.
Dan Epps: I've listened to most of the arguments from this term thus far. I don't know if you're listening to most of them, but my impression is that the quality of the oral advocacy is quite high right now. Maybe on average higher than I remember being in past years or at least a decade ago. I don't have an empirical study, and I don't have a hypothesis for why that might be true, but I just feel like I listen to argument after argument after argument in pretty random cases and I'm just hearing pretty high-quality advocacy, including from some of the usual suspects, but from some less well-known people.
Will Baude: Yeah. I think that's my impression as well. I'm not sure exactly what I'd compare it to. I do think the number of really terrible advocates has gone down. [crosstalk]
Dan Epps: Yeah. There used to be a lot of a significant chunk of people who would get up there and just be like, “Gosh, this person is basically committing malpractice by coming up to the Supreme Court podium and has no idea how to do this,” right?
Will Baude: Right. I assume that's a combination of fewer merits cases mean the number of excellent advocates who will argue your case for free goes up. There's always true in some cases, but it used to be there are more positions or whatever where that was less true.
Dan Epps: Don't you think even 20 years ago-- I feel like you could always find a fancy person who would do it for free, who needs the exposure.
Will Baude: I think 20 years ago, not in every case. If it was the plaintiff side of some issue where a lot of the usual suspects were at big firms would have a business conflict, even if not a real conflict, I think people weren't necessarily beating your door down and there weren't as many smaller clinics. But I also think that there must have just been a learning among the clients that this is the thing that you should expect, and thus, even when inexperienced lawyers want to keep the case, I think their pressure to moot the case a bunch, to consult with people who know some of our practice has probably gone up. So, I just think there's been-- It's good.
Dan Epps: Yeah. I'm not sure I've listened to every single one this term, but I don't think I've listened to one thus far, which there's a clunker one where you're just shaking your head. I do feel like when I was clerking, we got several of those.
Will Baude: Oh, yeah.
Dan Epps: I feel like in some prior years there have been. So, I don't know, would be interested in hearing from the SCOTUS bar, whether they agree with my assessment. And if so, if they have plausible hypotheses.
Will Baude: Well, they're going to be biased. But I'd be curious.
Dan Epps: Well, not necessarily. There might be people who are members of the Supreme Court bar who are very critical of other members of the bar, right?
Will Baude: [laughs] Fair enough.
Dan Epps: So, someone could think that they're a great advocate, but the other folks are not. So, I'm not sure.
Will Baude: Fair enough. Yeah, that's interesting.
Dan Epps: Okay. So, we have this slew of orders list opinions and some shadow docket stuff. I guess we should talk briefly about Bessent v. Dellinger?
Will Baude: Yeah, I think so. I think this is the first of the Supreme Court Trump shadow docket cases.
Dan Epps: First, is this the only one you think they'll get in the next few years?
Will Baude: [laughs] I think there'll be probably some more-- maybe even before this episode actually hits our listeners. As people surely know, there are tons of district court cases where district courts are issuing TROs about various things the Trump administration has done in the month or so since they've been in office. It's going to raise a lot of things, and a lot of those are bubbling up to the court. But the first one that the court has gotten and ruled on is Bessent v. Hampton Dellinger of office of Special Counsel.
Dan Epps: Son of famed Supreme Court advocate, former Acting Solicitor General Walter Dellinger.
Will Baude: Okay. I was wondering about that.
Dan Epps: Yup.
Will Baude: That checks out. That's interesting. The substance of the case is the unitary executive question about the president's power to remove officers of United States without having to show cause. And then it also has several procedural wrinkles.
Dan Epps: Yeah. Did you know what this was, Special Counsel for the Office of Special Counsel?
Will Baude: It's something about the Merit Systems Protection Board.
Dan Epps: Yeah. If you just said special Counsel, I was like, “Is this somehow related to Ethics in Government Act,” or something like that?
Will Baude: Well, you do wonder, when Trump removed him to Trump know what the office was or did he just see Special Counsel.
Dan Epps: Special Counsel.
Will Baude: And maybe Dellinger. Maybe he even [crosstalk] “Wow. A famous Democrat in the Office of Special Counsel.” Like, they're fired. I do wonder if--
Dan Epps: Yeah, that's eminently plausible.
Will Baude: But I don't actually know what the office does beyond being somehow involved in the Merit System Protections Board.
Dan Epps: Yeah. Okay. So, the district court enters a TRO against the president, I guess, against the government, saying-- [crosstalk]
Will Baude: Secretary of the Treasury.
Dan Epps: Yeah. Dellinger stays in office until the court was going to rule on his motion for preliminary injunction.
Will Baude: That was argued today, I believe, as we're recording this.
Dan Epps: Yeah. Because the TRO is supposed to expire today.
Will Baude: Yes.
Dan Epps: This day is the 26th of February, and that date will come back in a second. And just for people that are not super familiar, if you go to get this equitable relief from a court, you want the court to order something, there's different versions of that. There's the quick version TRO, temporary restraining order. There's the preliminary version, a preliminary injunction, although-- So, that will happen before the court has really conclusively figured out whether you're going to win although for all intents and purposes, in many cases, that is the whole ball game. And then, if you get to that point after the whole process, after we figure out who wins on the merits, then we can have a permanent injunction.
Will Baude: Right. So, preliminary injunctions are immediately appealable. As you alluded to, in practice, the preliminary injunction has often become the permanent injunction.
Dan Epps: Yeah. And the court will often rule on likelihood of success on the merits, and then they'll just basically say, “This person wins.”
Will Baude: Right. So, the TRO is often de facto the new the preliminary preliminary injunction. [chuckles] I need to figure out whether or not you're going to get a preliminary injunction. I know that the preliminary injunction is going to go up to the Supreme Court, so I've got to really nail that down. So, preliminarily--
Dan Epps: It’s supposed to allow to not last very long.
Will Baude: TROs?
Dan Epps: Yeah.
Will Baude: Yeah. So, the TROs are supposed to last like two weeks. They're supposed to not be appealable, although, there is a developed and developing jurisprudence about when is a TRO effectively a preliminary injunction, and when does the All Writs Act allow courts to de facto review it.
Dan Epps: The idea that they're not appealable, is that just a background principle, or is there some statute that says you can't appeal TRO.
Will Baude: I think the statute says, you can't appeal. You can only appeal final orders.
Dan Epps: Okay. This is just the general concept.
Will Baude: And then, preliminary injunctions are expressly enumerated as an exception.
Dan Epps: I see.
Will Baude: And so, it's just the fact that TROs are not normally within the statutory definition of a preliminary injunction.
Dan Epps: Okay. Okay. You can't fit it into the collateral order doctrine, necessarily, which is the doctrine that says, “Certain things that are not final orders are final orders for purposes of appeal.” [crosstalk] made up.
Will Baude: Right.
Dan Epps: [crosstalk]
Will Baude: Yeah, well,
Dan Epps: Completely?
Will Baude: Maybe not completely.
Dan Epps: Okay. So, partially.
Will Baude: Yeah. What does final mean? I'm open to being against that.
Dan Epps: Okay.
Will Baude: I looked into it at some point, it was a little more complicated than I thought. But TROs are quintessentially not collateral, because all the questions on the TRO are questions you're going to ask again at the preliminary junction stage, a little more clearly. But I do think we're seeing just an unusually large wave of administrative TROs past month, which some people attribute to district courts.
Dan Epps: You say administrative TROs?
Will Baude: I just mean TROs against administrative actions by the President.
Dan Epps: Oh, okay. Not like an administrative stay. Okay.
Will Baude: Well, a TRO is also kind of administrative stay in the court is saying-- [crosstalk]
Dan Epps: Yeah. Administrative stays are just like, “Stop what you're doing. Don't do this, while we figure out what the heck is going on.”
Will Baude: Right. I think that they stop-- [crosstalk]
Dan Epps: [crosstalk] total shutdown of what's happening until we can sort it out.
Will Baude: [laughs] Nice callback. Sometimes the TRO was like,--
Dan Epps: To a more innocent age.
Will Baude: “Stop what you're doing so we can at least get some more briefing on this. Stop what we're doing so we can like, call the boss,” or whatever. So, there's a sliding scale of stop to justification that goes from administrative state, a TRO at a preliminary injunction to permanent injunction. But anyway. I think a recurring question we're going to see is, what's up with these TROs? Are they immediately appealable or not? That's one of the questions the DC circuit and maybe the Supreme Court had to confront here in Dellinger.
Dan Epps: And DC circuit said, “We can't review this.”
Will Baude: Right. The DC circuit said, “This is a TRO. TROs are not ordinarily appealable. You could maybe make an exception under certain circumstances, but we're not going to make an exception.” Judge Katsas, often a dissenter who gets vindicated by the Supreme Court I think, dissented and said, “No, no, no, I would wade into this one, because the district court is so clearly wrong and the impact of the presidency is so large, because from one point of view, this is district court reinstating somebody who is in the executive branch, who the president has removed, which maybe is not how it's supposed to work.” And there's some also shadow boxing of other remedies and so on. So, Judge Katsas said, “I would get into it.”
I wonder if it was strategic. The SG picked this case as one of the first of the many Trump TRO cases to bring to the court, and I can't help but wonder if it's in part, because the merits are both so good and so conventional, like a unitary executive claim on behalf of a Republican president. That's a totally normal thing to expect.
Dan Epps: Yeah.
Will Baude: Different from fighting about shutting down USAID or birthright citizens or--
Dan Epps: Yeah. This office seems like one for which there's a reasonably good argument that the president should have removal power. It's not the head of FTC Commissioner. It's single head of this office. It has investigative core, prosecutorial type power that normally the president gets to wield.
Will Baude: Yes. So, they said you should get into it. And the Supreme Court--
Dan Epps: [laughs] So, it gives us the procedural posture, okay?
Will Baude: Uh-huh.
Dan Epps: It just gives us the procedural posture. It says the TRO will expire in-- When this was written, when the filing was made eight days, when the petition for cert was written, five days. And now TRO is expiring today or has expired today. [chuckles] Then it just says, “In light of the foregoing, the application to vacate the order of the United States District Court for the District of Columbia presented to the Chief Justice and by him referred to the court, is held in abeyance until February 26th, when the TRO is set to expire.” In light of the foregoing. [laughs].
Will Baude: Right. And is that even a holding? Like what--?
Dan Epps: I have no idea like what that is. [Will laughs] When this came down, I was texting you and I was like, “I don't understand the disposition. The disposition is nothing.” There's no reasoning. It's just statement of facts, in light of the foregoing, hold in abeyance.
Will Baude: Right. Well, it's funny, because the knocks some of us used to make in the shadow docket would be like, “Well, you just get results and no reasoning,” and then you get neither result nor reasoning.”
[laughter]
Dan Epps: This is like the apotheosis. This is the ultimate shadow docket. Justice Sotomayor and Justice Jackson wanted to straight up deny. So, do nothing. And then, we have a dissent from the order holding the application of abeyance by Justice Gorsuch, joined by Justice Alito.
Will Baude: So, they would grant for effectively the reasons that Judge Katsas would.
Dan Epps: So, the abeyers are the Chief Justice Thomas.
Will Baude: Yup.
Dan Epps: Justice Kavanaugh.
Will Baude: Yup.
Dan Epps: Justice Kagan.
Will Baude: Yup.
Dan Epps: And Justice Barrett.
Will Baude: Yeah. So, it's great. They did nothing and it was five-four, whether they could even do nothing. Doing nothing for no reasons, five-four.
[laughter]
Dan Epps: They could have just not ruled on it, right? They could have just not ruled on it until today.
Will Baude: Yes, they could have-- Sometimes when you hold something in abeyance, you just hold it in abeyance. You don't say you're holding it in abeyance.
Dan Epps: Yeah. It's not like you're not ordering anyone to do anything.
Will Baude: Yeah. Although I do think-- It's the two things. I take it some of these people wanted to write. And that's awkward. I don't exactly know what the rules are around dissenting from things that haven't happened, but I take it nobody could stop Gorsuch and Alito from dissenting.
Dan Epps: Yeah. Dissenting from the refusal to issue a decision.
Will Baude: Right. Or, statement. And then, of course, Justice Gorsuch would make it seem like shenanigans were happening. So, it's awkward.
Dan Epps: Yeah.
Will Baude: Also, I think the holding the abeyance is supposed to do two things. It's supposed to send a message to the lower courts. This is not necessarily okay. You should think pretty carefully whether you want to grant a preliminary injunction here, because there's at least some implication that the reason the court gives for not doing anything is because it's going to expire anyway, which suggests that if it's not going to expire, we might do something. I think it means just procedurally the court is now poised to act.
Dan Epps: Without requiring further filings or just with requiring minimal further filings.
Will Baude: I think possibly no further filing. I think if the district court today or tomorrow issues a preliminary injunction and preliminary injunction hearings today, as my understanding, and the court could immediately stay it if it wants to, they can wait for the SG to ask them to stay it. But I think they could just act.
Dan Epps: So, they need to be formally notified about what's going on.
Will Baude: I don't know if they do.
Dan Epps: Yeah. Obviously, they can read about it online, but I guess the clerk's office can just forward them whatever the district court does.
Will Baude: Yeah.
Dan Epps: Doesn't something have to move up through the chain? I assume the parties would just send a little letter, an immediate letter or something.
Will Baude: I assume there will be a letter, but I'm not even sure it's necessary. I think they take judicial notice of another court's order, I think.
Dan Epps: Yeah. It just still seems a little weird, like we saw on Twitter that this thing got ordered. Let's go ahead and fix it.
Will Baude: Yeah. It's also just interesting, again, since this is the first of what I think is going to be many Trump TRO cases. It's just an interesting message generally about these. And then, of course, it's literally a non-message. [chuckles] We're doing nothing for no reasons.
Dan Epps: In light of the foregoing. In light of the foregoing.
Will Baude: In light of the foregoing.
Dan Epps: I'm going to start using that all the time. I'm just going to say a bunch of things that don't explain anything and I just say, in light of the foregoing, you're fired.
Will Baude: I'm going to do a lot of held in abeyance. Your request for a meeting is held in abeyance.
Dan Epps: Well, we've got a case about that, right?
Will Baude: [chuckles] Indeed.
Dan Epps: Talking about in a minute.
Will Baude: Yeah. Both signals, like the court is watching these things. They're not rushing into it. They're a little worried about the procedural posture. If you want to be sure to get the court's attention, it's not going to just breeze past the appealability of a TRO problem, but it's not going to do nothing either.
Dan Epps: Yeah. All right. So, can we just quickly talk about some of the other orders list stuff?
Will Baude: Yeah.
Dan Epps: So, we have this statement from Justice Sotomayor, joined by Justice Gorsuch, respecting denial in a case called Gonzalez v. United States. This one's interesting. This one is a Fourth Amendment issue. And the question, is whether the Fourth Amendment incorporates an old common law rule that a police officer or an agent of law enforcement, they didn't really have the police hundreds of years ago as such, could arrest a person for a misdemeanor that did not take place in the officer's presence.
Will Baude: Without a warrant.
Dan Epps: Yes, without a warrant. The rule was a warrantless felony arrest was always fine.
Will Baude: Yup.
Dan Epps: And an arrest for misdemeanor committed in the officer's presence, fine.
Will Baude: Yup.
Dan Epps: But arguably, it sounds like there's a little bit of uncertainty on the common law authorities. But there does seem to be some form of a rule that just the officer finds out that someone previously committed a misdemeanor, they can't go arrest that person without getting a judicial preclearance by way of a warrant.
Will Baude: Right. So, if I go to a police officer and tell them like “Dan jaywalked last year,” they can't arrest you for it without watching you see if you jaywalk again.
Dan Epps: Yeah. It's an interesting larger set of questions, because the Court has sometimes said the Fourth Amendment incorporates some of these common law search and seizure restrictions. The Court has said under common law, there was a default rule that police are supposed to knock and announce before executing a warrant. And so, the Court has said that is part of Fourth Amendment reasonableness, although they later said that there's no remedy if they violate that in a case called Hudson.
But there's other things like that. There was also a common law rule that they were supposed to execute warrants during the daytime, and the Court has never said that's part of Fourth Amendment reasonableness.
Will Baude: Right.
Dan Epps: So, I think there's a bunch of things like this that could provide grounds for arguments that maybe there's more rules that the Fourth Amendment should incorporate from the common law that the court has never held or incorporated.
Will Baude: Yeah, I agree. It obviously plays into debates about originalism. Does this also play into the debates about how the Fourth Amendment relates to positive law and general law, because the common law part of that conversation? There they're thinking of historical common law rather than current common law?
Dan Epps: Yeah, I think it's really related to that conversation you and I have participated in our respective articles. I think it's not directly participating. It's like a third position. If you think about the way in which the Fourth Amendment might incorporate, other sources of law, the well-established traditional way of thinking about it is like, “Oh, yeah, maybe it incorporates all these old common law rules, and go back and look at what the common law cases said in America and in England in the 18th century.”
Your claim in your scholarship with James Stern, is that actually it's incorporating not necessarily just those old sources, but actually modern-day positive law. And then, my claim is that it incorporates common law, but in my and Danielle's Yale Law Journal article, the Fourth Amendment in General Law, the claim is that it incorporates evolving common law, not the common law frozen at a particular point in the past, but the ability for courts to continue to engage in common law reasoning. So, it's more traditional position there.
Will Baude: Yeah. Now and then, they also say this case is more complicated, because it also implicates the nightwalker statutes. Another one of these pieces of English history that I feel like come up in Fourth Amendment cases a lot.
Dan Epps: Yeah, this may have been some exception to this rule for nightwalkers. Nightwalkers sound scary.
Will Baude: [chuckles] Well--
Dan Epps: Creepy people that just walked around at night.
Will Baude: Well, in a world without artificial light, they were scary. [chuckles]
Dan Epps: Yeah.
Will Baude: Didn't they bump into things [chuckles] or weren't they otherwise up to no good? I think that's one of the reasons this is a statement respecting denial, is that Justice Sotomayor says, I don't know if she really means it, “Therefore, maybe this is not a great vehicle. Also, maybe Gonzalez committed felony trespass and then that would trigger a different rule. But we should get back into the question of misdemeanor arrests for misdemeanors not committed in the presence of the officer.” That's interesting.
Dan Epps: So, two Justices interested. I guess those are the two Justices I would have assumed would be the most interested. Justice Sotomayor likes defendants’ rights. She seems to like Fourth Amendment cases, maybe. And Justice Gorsuch likes looking to these common law rules and criminal procedure cases. So, I don't know whether they'll be able to get two more people on this. It seems like there is some disagreement in the lower courts, but it looks like all the federal circuits have said no. So, not like a great circuit split.
Also, this is something I was aware of this rule and the uncertainty about whether the Fourth Amendment incorporated it. I didn't know that actually a lot of states continue to follow this rule as a matter of state law. That's interesting.
Will Baude: That is quite interesting.
Dan Epps: I would have assumed that they would have all expanded the power of arrest.
Will Baude: Well, I feel like we get to the current rule in part, because the Court doesn't want to have to engage in any actual judgments about when arrests are appropriate. It's just like, as a rule, you can imagine state courts being a little more willing to say, “What piece of this I wonder about is the felony misdemeanor thing?”
Dan Epps: Yeah, I was going to go there. There's not a clear constitutional line between those two things. Like, there's not a constitutional test for the difference. I think that it's something that turns on state law.
Will Baude: Well, doesn't it sometimes turn on like, is it punishable by more than a year?
Dan Epps: I think that is the traditional rule, but I'm not sure that that rule is a constitutional rule versus just the traditional rule that most jurisdictions follow. I guess I'm not sure. I remember looking into this some years ago and coming away with a lot of uncertainty.
Will Baude: Yeah. I know my friend sometimes coauthor, Robert Leider, has argued that maybe this is a case where you need a little bit of living originalism or something to capture that the-- The original felonies were serious crimes at the founding.
Dan Epps: Everything's a felony.
Will Baude: The current definition is that everything is a felony. Something like punishable by 10 years or more now captures something closer to the significance and social meaning of a felon. I'm not sure this is a Constitutional argument or just a policy argument or what. But there's a way in which, the felony thing was doing some important work, and we've lost the work it was supposed to do.
Dan Epps: Yeah. That makes a certain amount of sense. Now that, here, would mean that there's a much smaller universe of crimes to which this rule would apply to.
Will Baude: Right. Or, a much bigger universe of crimes to which the misdemeanor. If we changed it, it would be a bigger. Yeah.
Dan Epps: Yeah. If we adopted that argument. If we just go with what is the label, there's not that many. There's fewer.
Will Baude: Right. There are tons of felonies out there. And then, we also have a rule that's Devenpeck v. Alford, that you can decide later that the thing you arrested somebody for is not the thing you said you're arresting them for at the time. Like, if you later realize you had probable cause to arrest them for some felony you'd never heard of, that you find in the statute books, that's good enough to support the arrest. So, I do wonder.
It's actually amazing this ever comes up. It's amazing there's ever somebody who can't later retcon them into probable cause for a felony. But some people are really law abiding, I guess.
Dan Epps: Yeah. Okay. Another one from Justice Sotomayor I also found interesting, if I can find this one, Woodward v. California.
Will Baude: This is the Double Jeopardy one?
Dan Epps: Yeah, it's a Double Jeopardy one. This is something that actually I teach in my adjudication class. This question is basically, there are things-- So, if you get acquitted, if you get 100% acquitted, the state cannot later come back and retry you.
Will Baude: Yeah.
Dan Epps: But the question, is there are certain kinds of things that a court might do that maybe aren't labeled acquittal, but maybe they still have the same function of being an acquittal. So, something could be a dismissal and yet nonetheless be an acquittal. The rule as I taught it and understood it is basically whether the order resolves some or all of the elements in the defendant's favor, some of the elements of the offense. So, basically, it's like, is this about saying there's not enough evidence, something like that, something in that vicinity. It doesn't have to be correct.
Will Baude: Right.
Dan Epps: That has to be what it's about-
Will Baude: Right.
Dan Epps: -rather than I'm dismissing, because prosecution needs more time, prosecutor misconduct, all sorts of other things that are not about basically the proof, the elements of the offense.
Will Baude: Right.
Dan Epps: And here, this California case, defendant was tried twice for murder. Both times, majority of voters wanted to acquit, but the jury ends up deadlocked. And then, the trial court relies on this California state law procedure that allows a dismissal and says, “In doing that, well, absent new evidence, the prosecution would be unable to meet its burden of proof in subsequent trials, dismissing,” which further the interests of Justice, etc., etc.
And so, basically, the long story short, the state courts have said, “Applying their own state law rule, this is not an acquittal.” And the argument here is, well, there's a federal definition of what constitutes an acquittal for Double Jeopardy purposes. I think that's correct, and this qualifies as an acquittal, because they came back nearly three decades later after getting some DNA, and now want to retry this guy, which is crazy. It's very unusual situation.
Will Baude: It's an amazing posture.
Dan Epps: Yeah.
Will Baude: Yeah. Well, this is interesting. So, the district court today is a little ambiguous, right?
Dan Epps: Yeah.
Will Baude: The court says, “A dismissal of this case is not meant to criticize the work done by the prosecution. There is simply a lack of evidence on which to convict the defendant.” Okay, that sounds like a lack of evidence. “Without new evidence, the result of this case will be the same at each successive trial.” [crosstalk]
Dan Epps: Now, there is new evidence.
Will Baude: Right. And the result has not been an acquittal. Of course, the result has been a hang. “Due to the lack of evidence in this case, a jury will never be able to reach a unanimous verdict of guilty. It appears that justice would best be served if the charges were dismissed.”
I get the court's thinking. It's like, technically, there's enough evidence that if a jury voted to convict, I wouldn't set it aside. It's not that it would be illegal for a jury to convict on the basis of the evidence, but realistically, we're just going to keep hanging this case over and over again. And I don't want to do it. I'm not sure. And as a matter of state law, apparently, it's a thing, as a judge, you can do because there's an interest of Justice standard. But where to put that in the Double Jeopardy box is interesting.
Dan Epps: And so, she says, “Well, it doesn't make sense to grant this one, because this argument was not presented to the California Court of Appeal before it issued its opinion. It was only raised in the California Supreme Court.” But she says she concurs and encourages the California Supreme Court to address the question of whether the state law precedent can be reconciled with this Court's Double Jeopardy precedent. When would they do that though? This is just a denial. Like, it's not being remanded, right?
Will Baude: Right. I think it's in the future.
Dan Epps: Okay. Well, obviously it's-- Yeah.
Will Baude: It's just flagging issue.
Dan Epps: But in some other case.
Will Baude: Yeah. Some other case.
Dan Epps: This guy gets screwed. Because this is still in an interlocutory posture, right?
Will Baude: Okay. Yeah, maybe.
Dan Epps: So, maybe he can, after conviction, make this argument?
Will Baude: That might be.
Dan Epps: That one's interesting. There's other ones we could talk about, but perhaps, will not. There's this one, Pina v. Dominguez, which is a qualified immunity issue. Justice Alito dissents from denial, joined by Justice Thomas, annoyed that the Ninth Circuit found qualified immunity inapplicable in this case involving a fatal police shooting.
Will Baude: Yeah, this is the kind of case that used to be on the summary reversal docket [crosstalk] court.
Dan Epps: Yeah.
Will Baude: [crosstalk] cases.
Dan Epps: But only two interested. Coalition Life v. City of Carbondale, which is dissent from denial by Justice Thomas. Justice Alito doesn't join the dissent, but says he would have granted, Thomas saying that the court should reconsider its decision in Hill v. Colorado 2000 case that upheld these buffer zones around abortion clinics.
I do think there's support among the majority of the court, probably, for reconsidering that decision, or at least, support for thinking it's wrong, but couldn't muster any other votes here. Perhaps, because there's this footnote in the very last page of the opinion that says, “Oh, by the way, the city repealed the ordinance-
Will Baude: Right.
Dan Epps: -in the summer of 2024.” But case is not moot, because the plaintiffs wanted nominal damages. [Will laughs] And that just may make this a little bit less pressing for people.
Will Baude: Yeah. Justin Thomas also has this interesting argument that maybe Hill's already been overruled by Dobbs.
Dan Epps: Yeah. Yeah. I guess I had forgotten this that Dobbs in the stare decisis analysis said, “Oh, that Roe distorted our case law by leading to bad decisions like hell.”
Will Baude: And it's interesting. There's a whole list of things like that. There are a bunch of third-party standing cases. Several of these I remember thinking about when I was working on a Fed Courts case book that's like to what extent, Dobbs. You have this weird fed courts doctrine that some people think is a special thing for abortion cases. Dobbs gets rid of the abortion precedents and specifically calls out these precedents as distorted.
Dan Epps: Yeah.
Will Baude: Is that enough out of the court's test? I guess you need magic words to overrule cases. Is that not quite enough to actually overrule those cases, or is that enough to put them on shaky ground? I think that's interesting.
Dan Epps: Certainly, puts them on shaky ground. I don't think it should count as an overruling. Only other thing, I guess we should talk about actual cases in a minute. But one thing that's interesting, is that he calls out a Seventh Circuit opinion by Judge Sykes that had said, Hill is incompatible with her most recent First Amendment precedents and just notes opinion of Sykes joined by Barrett J. By the way, Justice Barrett joined this, but obviously I don't know if that was bait in there to try to get her to come along, but seems not to have worked.
Will Baude: Yeah.
Dan Epps: Okay. I guess we should talk about actual merits decisions. We have gotten a number of them. We're only going to talk about one or two.
Will Baude: Yeah. We've got one, two, three, four, five, six.
Dan Epps: Does that include the ones from today?
Will Baude: Seven. Seven, and the ones from today.
Dan Epps: Okay.
Will Baude: It's a bunch.
Dan Epps: There were two today, right?
Will Baude: Two today. There were three Friday and two yesterday.
Dan Epps: Okay. Yeah. Okay. Yeah, it's a healthy number. Starting to feel like June. [Will laughs] I would say they're getting some of the clunkers off their desks, but some pretty interesting ones. And let's talk about-- I'm not going to promise two. We've been going for a while talking about various tangents, but we'll at least get through one. Maybe we'll talk about two. Maybe start with Glossip.
Will Baude: Okay. Yeah. You prepped this case a long time ago for an oral argument preview we never did.
Dan Epps: Yeah, I don't know whose fault that was that never happened. But that did not ever happen. So, Glossip v. Oklahoma. I did dig into this one many months ago, and so I will have to had to re-dig into it. But I remember some of it and I actually looks like in a rare development, I took good notes last time and so I can rely on those a little bit too.
So, one thing to note. So, this involves a capital defendant, Glossip. There was a previous case about him, Glossip v. Gross, but that was a totally different case, because that was a civil suit challenging Oklahoma's lethal injection protocol.
Will Baude: Okay. Which he lost.
Dan Epps: Yeah.
Will Baude: But then, they didn't execute him, I guess.
Dan Epps: Yeah, they still want to, but that has not happened. It's now, as you know, spoiler alert, that will not happen, at least anytime super soon. Okay. So, let me try to make this long story somewhat short.
Glossip was charged with capital murder of Barry Van Treese. It's occurred 1997, really long time ago. Everybody agrees he didn't personally commit the murder and that it was committed by this guy, Justin Treese. Glossip was the manager of this--
Will Baude: Justin Sneed.
Dan Epps: Mm?
Will Baude: Sneed.
Dan Epps: Yeah. Sorry. Justin Sneed. I don't know why I wrote-- [crosstalk]
Will Baude: Treese is the victim.
Dan Epps: Treese is the victim. Terrible notes. Sneed, who, with Glossip, worked at the hotel that Van Treese owned. Glossip was the manager. Sneed was the kind of person who got a room for free and maybe did some help. He doesn't seem like he was a great hire.
The state's theory was that Glossip paid Sneed to kill Van Treese, and Glossip wanted to do this, because he was embezzling money, was about to be fired. Whether that is true or not is disputed. Basically, the whole case depends on what Sneed said.
Will Baude: Right.
Dan Epps: There was no other direct evidence of any sort. There were some other things that were circumstantial, incriminating. Glossip had some money. Wasn't totally clear where the money came from. Maybe he sold his TV, maybe not. But Sneed was key, right?
Will Baude: Yeah.
Dan Epps: Glossip is tried and convicted. His conviction gets overturned for ineffective assistance, and then finally he's retried and convicted in 2004. That's the conviction that is the basis of this decision. So, this case has been kicking around now for more than two decades.
A lot of stuff happened. A lot of people had reservations and raised concerns about whether maybe he's innocent. Sneed is not the most reliable guy. We'll get into some of that in a little bit. Various things happen, but basically the state finally turns over a bunch of boxes of discovery material, some of which certainly should have been turned over earlier as a result of the state's Brady obligations. And then, the next year, the state finally discloses an eighth box of material. What was in the eighth box is what this case is about.
Basically, there were some notes in that box that arguably, and we'll say why that's arguable in a second, but arguably showed that the Prosecutor Connie Smothermon knew that Sneed lied on the stand when he testified that he had been prescribed lithium, but that he had never seen a psychiatrist.
Will Baude: Yeah.
Dan Epps: There's some other things that were disclosed that are in some of the other boxes that are troubling that are not directly what this particular thing, because there's multiple, a bunch of different petitions for review that Glossip has filed. This case is about one of them.
Will Baude: Right. The notes that we really care about is this figure one and Justice Thomas dissent. He has a little picture of the notes.
Dan Epps: Yeah. This is interesting. If you read the briefs, the red and blue briefs in this case, because actually the state of Oklahoma, via the Attorney General agrees that Glossip should win. If you read both of those briefs, you don't see a picture of the notes.
Will Baude: Yeah.
Dan Epps: And then, you have to read the brief for the court appointed amicus. I thought this was just an outstanding brief by a court appointed amicus to actually see a picture of the note.
Will Baude: Right. Basically, over the left-hand corner, it says in tiny print, on lithium? Dr. Trumpet? That's the smoking gun, right?
Dan Epps: Yeah. And so, both Glossip and the state basically just say, “This establishes that Sneed lied and that some other men in the prosecutorial team knew. Why is that? Well, apparently there was a jail psychiatrist, Dr. Trombka-- And so, Dr. Trumpet must have been Dr. Tromka.
Will Baude: Uh-huh.
Dan Epps: That must have mean Dr. Trombka prescribed it, and everybody knows he's a psychiatrist, and therefore this is a lie and therefore this is a violation of a case, the pronunciation of which I've had some disagreement about how to pronounce. I think Seth Waxman, counsel for Glossip, said Napue-- How do you say it? Napue v. Illinois?
Will Baude: Is it Napue or Napue?
Dan Epps: Yeah. Or, Napue? It’s N-A-P-U-E. But basically, there's that case and other cases, saying, it's a big deal if a prosecutor knowingly puts on perjured testimony. That's worse actually than just failing to disclose exculpatory information, which is Brady.
Will Baude: Right. And just to be clear on-- The put on perjured testimony means the prosecution calls a witness, the witness lies and the prosecution knows they're lying.
Dan Epps: Yeah, prosecution know.
Will Baude: Right. If the person is just mistaken and the prosecution knows they're mistaken, then it's not a Napue violation?
Dan Epps: If they're not lying, but just making a mistake?
Will Baude: Yeah. There was some possibility that discussed in these opinions that maybe Sneed was delusional about his own mental ability. Maybe he didn't think he was mentally ill, right?
Dan Epps: Yeah.
Will Baude: If you imagine that Sneed did not believe. He's prescribed lithium for his mental illness, but he doesn't believe that's why he's prescribed lithium. He believes the lithium is because of his cold. The prosecution knows that's not true, and they let him say that. Is the prosecution required to correct that?
Dan Epps: I'm not sure.
Will Baude: Okay. All right. Do you know that matters?
Dan Epps: Yeah. I'm not sure it's key here.
Will Baude: I just find this whole thing-- [crosstalk].
Dan Epps: I do think if the prosecutor knows someone is saying something that's not true. They know that to be the fact. I think that there would still be the obligation to correct it.
Will Baude: Okay.
Dan Epps: I'm going to pull back to the decision. It talks a lot about whether the prosecutor knew testimony to be false.
Will Baude: Yeah. Okay.
Dan Epps: I think that if it's false, I think that's probably enough.
Will Baude: Okay.
Dan Epps: But I'm not sure it matters.
Will Baude: Yeah. Okay.
Dan Epps: Okay.
Will Baude: All right.
Dan Epps: But it is this weird thing about, like, if you just read the defendant and government's brief, you come away thinking there's this smoking gun note that says, “We're lying and let's not tell anybody.” And then, when you actually look at it, it does seem a ton more ambiguous.
Will Baude: Right. The note is more relevant to a Brady claim. The idea of the note, is we should have given this note to the defense, because then that would have been a clue for them to figure out that Sneed was lying.
Dan Epps: Well, the note is also evidence of the Napue claim, right?
Will Baude: Right. The failure to turn over the note is a Brady claim, and the note causes us to suspect that the prosecution knew all of the question mark, right? It could be ambiguous. The prosecution didn't know what was going on. They weren't sure.
Dan Epps: Yeah. An interesting thing about this, is that there is this alternate version of what the note might mean, which, is that actually this is a note about trying to recount Sneed's description of an interview he had with the defense side lawyers or investigators. And that is advanced, not unpersuasively, in an amicus brief filed by the Van Treese family by famed victim’s rights advocate and former federal judge, Paul Cassell. But it's relying on stuff that's not in the record to establish that, which is weird.
I did remember it was one of those cases where I read the two-party briefs and I was like, “Okay, this is open and shut.” And then, I read the court opponent amicus and I read the Cassell brief and I was like, this is a lot more complicated. I'm really not sure about this one.
Will Baude: Right. The Cassell brief part of the complaint also, is that because the attorney general has now taken Glossip's side, you can't totally trust the record here because at least there's an allegation.
Dan Epps: He moved for divided argument. Court denied it. I thought that maybe that would have been appropriate to grant it in that situation.
Will Baude: I think you can't grant that motion unless you have a theory of what to do with all this non record evidence, because he's going to want to talk about the non-record evidence.
Dan Epps: Well, they could grant it and say, argument shall be limited to evidence in the record.
Will Baude: Yeah, that would be a theory. I'm just saying.
Dan Epps: Someone could still advance that interpretation of the note. The note is in the record and someone could advance that. And honestly, that seemed to me like maybe the most plausible interpretation of some of the other things on the piece of paper.
Will Baude: Yeah. Okay. So, as I understand the Supreme Court's ruling, we've got three issues.
Dan Epps: Yeah.
Will Baude: One is the jurisdictional question. Does the Supreme Court have jurisdiction or is this barred by AISG?
Dan Epps: Adequate and independent state ground.
Will Baude: Yes. Thank you. Two is the merits. Was there a Napue violation?
Dan Epps: Yup.
Will Baude: And three is the remedy.
Dan Epps: Yup.
Will Baude: Okay.
Dan Epps: I would say all three of those [chuckles] are questionable. Quite questionable.
Will Baude: [laughs] Okay. And just to put it on the table, the majority says, “Yes, there's jurisdiction. There's not an independent state procedural bar.”
Dan Epps: And we got six votes on that.
Will Baude: Six votes on that.
Dan Epps: Yeah.
Will Baude: Yes, there's a Napue violation, or yes, the lower court has misapplied Napue. I guess we'll--
Dan Epps: No. Yeah, I think--
Will Baude: And then, on the remedy, there are six votes to say, “We are confident that--[crosstalk]
Dan Epps: Five votes.
Will Baude: Five votes to say, “We are confident that there is a Napue violation, [unintelligible [00:56:04] is missing. “We are confident there's a Napue violation--
Dan Epps: Is that because he dealt with the Glossip case when he was on the Tenth Circuit?
Will Baude: This case has been on the Tenth Circuit for 20 years. So, I assume.
Dan Epps: That must be.
Will Baude: I assume he's been on a Glossip case. And then, to say no need to remand to the lower court to try the Napue analysis over again, because they're so clearly wrong that we just conclude that he needs a new trial.
Dan Epps: Yeah. So, six to say they got it wrong, five to say they got it wrong and let's just fix it.
Will Baude: Right. Six to say jurisdiction, six to say they got it wrong, and five to say they got it wrong and they can't possibly be right. So, we'll just fix it.
Dan Epps: And two in full dissent. So, the full dissent by Justice Thomas,-
Will Baude: Yeah.
Dan Epps: -joined by Justice Alito.
Will Baude: Yeah.
Dan Epps: Justice Barrett is the one in the middle. She joins the majority on jurisdiction. She joins them in agreeing that there was error below, but then doesn't go along with the remedy and would have just remanded. And so, majority opinion by Justice Sotomayor, joined in full by the Chief, Kagan, Kavanaugh and Jackson.
Will Baude: Yeah. Barrett also says she thinks the jurisdictional question is closer than the majority does, even though she still agrees with them.
Dan Epps: Yeah. Okay. So, yeah, a lot going on here. Enough going on that we might never get to that second case. But who knows?
Will Baude: Yeah. You haven't told them what it is. That's good.
Dan Epps: What?
Will Baude: You haven't told them what the second case would be. So, that’s good.
Dan Epps: I know. Yeah. Nothing they care about.
Will Baude: Okay. So, oral argument, I felt like, was mostly about the jurisdictional question, or at least that was a big part of argument, because there are these various procedural bars, but the Oklahoma Court of Criminal Appeals opinion, not a model of clarity. So, what the majority says is up front, they say, “Well, the attorney general's confessed error, but we're not going to accept the confession of error, because the confession of error is not based in law.”
Dan Epps: In fact.
Will Baude: “Based in law and fact, which seems to involve some merits determination.” They make a merits determination that they don't agree with the confession of error, and that's upfront before they get anything else.
Dan Epps: But it's smack in the middle of a discussion of these procedural limits. There is procedural limits on these kinds of successive petitions for relief filed in Oklahoma court.
Will Baude: Right. But the procedural limits are not jurisdictional, so maybe they could be waived. So, maybe a confession of error would normally-- So, there's a state law procedural limit, a state law confession of error, I guess, but then the Oklahoma Court of Appeals maybe evaluates the state law confession of error, which is a state law exception to the state law procedural requirement with a merits test. It says, “We won't accept your confession of error because on the merits we don't think it's correct.”
Dan Epps: I find it quite ambiguous. It could be saying it's not based in state law and fact.
Will Baude: Right.
Dan Epps: Or, it's saying it's not based in federal law and fact.
Will Baude: Well, it's not based in state fact. [chuckles] That doesn't-- [crosstalk].
Dan Epps: But the question, is does the law mean federal law or state law, right? Fact is fact, right?
Will Baude: Surely, they don't have a rule that. If you confess error and you have a valid federal constitutional reason for confessing error, but not a valid state constitutional reason for confessing error, we won't respect your confession of error, that would violate—[crosstalk]
Dan Epps: But maybe the Oklahoma Court of Criminal Appeals disagrees and thinks that that these are circumstances where under state law, the attorney general is not supposed to confess error.
Will Baude: Oh, yeah.
Dan Epps: I just don't know. It's really not well written.
Will Baude: Right. Since the whole point of a confession of error is to waive some set of legal arguments.
Dan Epps: But maybe they're saying he can't waive them. It's just genuinely unclear.
Will Baude: If what you mean is confessions of error are not possible in the Oklahoma Court of Criminal Appeals, saying the confession of error is not based in law and fact is a bad way to say it. But you're right. That might be what they mean. So, then the majority, and especially Justice Barrett, are helped by this old precedent, Michigan v. Long, which says “When it's confusing what the state court is doing, we will assume that they are using some federal law. There's a presumption in favor of jurisdiction and a presumption against an adequate and independent state ground when they're blown together in a mix.”
Dan Epps: And the classic example of that is a case where the court is relying on state constitutional guarantee and federal constitutional law, and it's not really clear which one it rests on, right?
Will Baude: Yes.
Dan Epps: That's a simpler situation.
Will Baude: Yes. And often in those cases, they will clearly state, “We find this to violate both the federal constitution and the state constitution.” But they are not clear on whether the state constitution is, what we say, interpreted in lockstep with the federal constitution or whether it has independent force. So, it’s like, would the state constitutional violation finding still be true,-
Dan Epps: Yeah.
Will Baude: -if our federal constitutional finding were not true? In some ways, the Michigan v. Long itself is less confusing than this opinion, which is just very confusing.
Dan Epps: Yeah.
Will Baude: I think then that lets the majority in Justice Barrett at that point bail out and say, “Look, at a minimum, it's confusing and therefore it's at least plausible that the lower court ruled that this claim was incorrect as a matter of federal law, and therefore we can review it.”
Dan Epps: Do you agree with that?
Will Baude: I think that…and this is going to surprise nobody. I basically come out with Justice Barrett came out on that. [Dan laughs] I guess I'll say two things. The more natural reading to me was, we are rejecting this confession of error in part, because we disagree with other merits, in part because that is a sensible rule about confessions of error. So, that was what I read them to do. My experience with the Oklahoma Court of Criminal Appeals, which is 20 years old or so, 18 years old, not quite as old as Glossip's experience with them.
Dan Epps: Because you clerked in the Tenth Circuit and you confronted-- [crosstalk]
Will Baude: Clerked in the Tenth Circuit and we had a number of habeas AEDPA cases arising out of Oklahoma in which some of these puzzles occurred. My experience was that it was frequently the case that the Oklahoma Court of Criminal Appeals procedural rulings were intertwined with merit's determinations.
Dan Epps: Okay.
Will Baude: Like, they would have these thresholds to get evidentiary hearing. And at first, it would look like a state law standard, but we dug into it, it would turn out that there was some-- Again, sensible. Like, merits gut check as part of this. Like, you want a late hearing. And if you have a really good argument, they'll let you have one and if not, not.
Dan Epps: Yeah.
Will Baude: So, it would not surprise me if that's going on here.
Dan Epps: All right. And so, I guess--
Will Baude: That's the threshold issue.
Dan Epps: Yeah. We're going to find that there's jurisdiction, so that gets him in the door. Now, he is able to make the federal constitutional argument that the state court should have considered.
Will Baude: Yeah. I don't really understand Napue for the reasons I already established. I don't quite understand the prosecutor's duties here and I don't quite know what to do with the extra record evidence, but I guess it seemed pretty straightforward on the record they have. Once you get through the procedural violations and given the precedents, the merits seem pretty straightforward.
Dan Epps: Yeah. I guess to the extent that you believe the claim that the court says, “The evidence establishes that the prosecution knew Sneed's statements were false as he testified to them.”
Will Baude: Yeah.
Dan Epps: I think the evidence might establish that. It's not a lot of evidence. [Will chuckles] It’s Dr. Trumpet. Question mark.
Will Baude: [laughs] Yes. Although I will say I found the arguments against the majority made the majority seem stronger to me, because it seems like the counterargument is, “Well, come on, everybody knew he was lying because nobody prescribes lithium for a toothache that doesn't make any sense.”
Dan Epps: Yeah.
Will Baude: That's not a good argument. If there's duty to correct false testimony, surely they said to correct, obviously, false testimony.
Dan Epps: Yeah.
Will Baude: Maybe this is where the Brady claim and the Napue claim end up being a little bit of tension. Because if you want to be able to say, look, he was so obviously lying that the defense already had everything they needed to know to attack this, then the Napue claim is ironclad.
Dan Epps: Yeah.
Will Baude: And if you want to say, well, maybe he was telling the truth, well then the Brady claim that would have allowed you to get into the-- whether he's telling the truth becomes even more important.
Dan Epps: Yeah. And the state, as I recall, confessed error on Napue, but not on Brady.
Will Baude: I think that's right.
Dan Epps: Yeah.
Will Baude: Mostly, I just find it's really bizarre that 30 years later, whether the second capital trial gets overturned depends on whether or not somebody wrote in the corner of a piece of paper, Dr. Trumpet.
Dan Epps: Yeah, it is wild. And then, the other thing is-- [crosstalk]
Will Baude: [crosstalk] should have turned over box eight a long time ago.
Dan Epps: Yeah, it would have solved a lot of problems. The other thing that's a little weird, the court in deciding that there's a problem with the verdict here, also looks at other stuff. It looks like there's some evidence that shows that the prosecutor violated the rule of sequestration in communicating with Sneed's lawyer and arguably trying to get him to tailor his testimony in advance during the trial in order to make sure that he admitted. Said something about stabbing the victim.
Will Baude: Otherwise, they were going to have a problem.
Dan Epps: That seems problematic. But it wasn't squarely presented in the particular petition that was on review here. There's like, “Oh, there's this other stuff floating around there.”
Will Baude: Although I guess the idea is that that's evidence of the Napue violation as evidence that the prosecution was trying to help Sneed modify his testimony.
Dan Epps: No. They just say, “Additional conduct by the prosecution further undermines confidence in the verdict.”
Will Baude: Yeah.
Dan Epps: Yeah. Yeah, I guess that it's bearing on the prosecution's mens rea.
Will Baude: Yeah. Did the court ever get into this? Also dates back to when we were clerking. There used to be this maybe like 12 to 1 circuit split or something other than 13 circuits on the cumulative error doctrine. There was like, if you have one constitutional violation, you are not sure whether that violation is harmful. But in combination with a bunch of other stuff, maybe not independently actionable, then it becomes harmful. And it felt a little bit like that's what the court's doing here.
Dan Epps: Although that seems like that should only apply in situations where you have both the errors in front of you.
Will Baude: Well, they say cumulative evaluation [crosstalk] majority. At the harmless error standard, I guess the prejudice wrong.
Dan Epps: They're not saying that's a separate. They're just saying it's part of the prejudice analysis.
Will Baude: Right. Right. So, the court now does this thing that I think you and I both disapprove of, where sometimes we'll decide a claim is harmless, because there was a bunch of overwhelming evidence-
Dan Epps: Yeah.
Will Baude: -like other evidence. Yes, we shouldn't have admitted this evidence against you, but 12 other people said you did it, so harmless. I guess if you're going to do that, this is the flip side, it's like, well, a bunch of other shady stuff happened-
Dan Epps: Yeah.
Will Baude: -that further undermines our confidence in the verdict. So, it's not an overwhelming evidence case.
Dan Epps: Yeah. Okay. So, they find a violation.
Will Baude: Yeah.
Dan Epps: And then, what's the remedy?
Will Baude: And then, the remedy is interesting. So, Justice Barrett and the dissent say, “Well, normally, we should just correct their mistake, say, there was no Napue violation, you're wrong about that,” and set it back to them. I take it, it goes back down to them. They could, among other things, hold an evidentiary hearing on all this stuff Paul Cassell wants to bring in and who knows what else, right?
Dan Epps: Yeah. I guess potentially decide whether state law authorizes a new trial or any other state law questions.
Will Baude: Yeah. Could they, at that point, resurrect a state law AISG? Could they, at that point, say if we gave them a remand? Ah. We see we were unclear the first time about whether our procedural violation was intertwined with federal law.
Dan Epps: Yeah.
Will Baude: Now that we got the case back, we'd like to be clear that despite the violation of federal law, we still find it procedurally barred. That would be on the table.
Dan Epps: Or, he wins on the merits, but there's some other reason, you can't get new trial remedy in this posture or something. I don't know.
Will Baude: Yeah. That would be the normal thing to do, right?
Dan Epps: I would think so. So, the court is just like, “Nope, let's just give this guy a new trial.” This whole thing has this feel, like there's just been so much stuff. This case is just one of these capital cases that's attracted a huge amount of attention. The Oklahoma legislature commissioned an independent investigation that concluded that there were tons of problems. The attorney general hired a law firm to investigate. It found separately there were a ton of problems.
The way Oklahoma system of government works, the attorney general can't just let him go free. There's this board of parole, and that board split 2 to 2 on possible clemency for him, because the deciding tiebreaking vote is the husband of the former prosecutor who had to recuse.
So, it's just like there’s a bunch of-- This whole thing just smells bad. It just seems like, the court was like, “You know what? We just need to reboot this one, okay? We're just not going to let this keep going.” Maybe rushing a little bit over some of the legal and procedural complexities here.
Will Baude: Yeah.
Dan Epps: What do you think about that?
Will Baude: I agree with you about the feel. There's a sense in which it feels like the majority says, “We just don't have confidence in this verdict anymore. Our confidence is sufficiently undermined that this point, we need a new trial.” Even if it goes back and the Oklahoma Court of Criminal Appeals finds some new evidence or find some new state law argument, like, we're not going to have confidence anymore. [crosstalk] So, that's not an unreasonable attitude. There's just a question of whether it's something the court is allowed to do.
Dan Epps: Apparently, they are-- [crosstalk]
Will Baude: Also, Justice Thomas makes this jurisdictional point, citing the newest edition of Hart and Wechsler's The Federal Courts.
Dan Epps: The first judicial citation to that.
Will Baude: It's certainly the first Supreme Court citation.
Dan Epps: It's just been in print for a few weeks, right?
Will Baude: Yeah. A month. I think it came out basically July 1st. I haven't looked to see if the lower courts have cited it yet, but maybe not.
Dan Epps: January 1st.
Will Baude: Yeah, that's right. The other month. That says, for state courts in particular, the court has this norm. I think we've talked about this before on the show, of when it reverses a state court, it says remand for proceedings not inconsistent with our opinion.
Dan Epps: Yeah.
Will Baude: Whereas when it remands to a federal court, it says consistent with our opinion. And that is supposed to maybe even convey that the state courts have more freedom on remands to do other stuff, to interject new issues of state law, the Supreme Court has no jurisdiction over and so on. So, if you think that's an important principle of federalism, then the court seems to be violating it here or making an exception to it. I think that's right.
Now, I was trying to chase this down, and I couldn't totally chase it down. In 1867, when Congress amended Section 25 of the Judiciary Act, which is the statute that provides appellate jurisdiction from state courts to the Supreme Court, and the amendment comes to the Supreme Court in a case called Murdock v. City of Memphis. But the amendment, one of the things they did when they amended it, was they said for the first time, the Supreme Court is allowed to just award execution without remanding the case. This is arising from state courts.
Dan Epps: Just enter judgment.
Will Baude: Yeah. Because this had come up. And so, that seems to have gone away. It's not in the current iteration of Section 20 of the Judiciary.
Dan Epps: Interesting.
Will Baude: The statute no longer says that. I didn't have time to chase down, like, whether that's one of those things that got left out of one of the codifications, because everybody thought it was obviously true or that was removed. But there were these debates in the 19th century sometimes, where state courts were thought to be obstreperous on remand, and the Supreme Court finally wanted to step in and say no.
Dan Epps: That happened, I think, during the Warren Court desegregation era too, is that there was sometimes cases where the Warren Court just realized that the southern state courts were not going to comply, so they would just say enter judgment for the plaintiff or whatever.
Will Baude: Right. And so, I think the majority is right that this is a thing they can do. I do think it's unusual.
Dan Epps: Yeah.
Will Baude: And so, I guess I would have liked a little bit more defense of doing it.
Dan Epps: Yeah. It is Interesting how it just seems like every year or so-- This is related to our summary reversal discussion. Every year or so, the court finds one of these capital cases that's just been plagued by lots of problems, and gotten a lot of media attention and just very questionable in many ways and just basically says no. You remember Flowers?
Will Baude: Yeah.
Dan Epps: Flowers was the guy who was tried six times over 30 years. There was plausible Batson claims and things like that, but the court finally stepped in and was just, “No.” Overturned his last conviction. There's a great podcast series called In the Dark about that. I was a guest speaker on the episode that came in after cert was granted that happened while the case was going on, and cert was granted late in the history of the podcast. So, that's worth a listen. Foster v. Chatman. There's just certain outlier cases that seem bad and they just come in and fix them. And Glossip has won that lottery this year.
Will Baude: Yeah. It is a little funny, because it goes back to where we started. It feels like the case is like, “Well, we might or might not have jurisdiction, but it's ambiguous, so I guess we'll take it.” There might be a serious violation based on these notes. It's hard to be positive what's going on. But in the end, our confidence is shaken by this and a lot of other stuff. So, it's a little ambiguous. Therefore, this case can't possibly be affirmed again. [chuckles] It's a little weird for the ambiguities to then add up to the definitive.
Dan Epps: Yeah. So big, big win. You had to feel pretty good as Glossip once you got the case granted and once you had the government supporting you. Court appointed amicus, did do an able job for sure, but this has maybe got to be a bigger win than expected, to just go ahead and get the final relief.
Will Baude: Yeah. There was a discussion argument about like, there a point in remaining for an eventually hearing or not, etc. So, I think this was your-- [crosstalk]
Dan Epps: I'm not saying it's not wholly outside the realm of possible. [crosstalk]
Will Baude: No, that’s just what you were swinging for.
Dan Epps: [crosstalk] -the big win. Yeah.
Will Baude: Yeah. As you said at the beginning, every step is not obvious, but not obviously wrong.
Dan Epps: Yeah. Yeah. We're not digging into Justice Thomas' 40-page opinion. The factual points you were less persuaded by some of the legal points, he seems to have decent arguments.
Will Baude: So, part of it, he now comes in, and amicus brief has these statements about, what really happened, claiming that the attorney general's investigation was a set up.
Dan Epps: Yeah.
Will Baude: But the new statements are unsworn.
Dan Epps: Yeah.
Will Baude: That all seems very strange to me.
Dan Epps: Yeah.
Will Baude: Maybe they don't--
Dan Epps: I don't think the court should be relying on those.
Will Baude: It's hard to find a notary in Oklahoma. [Dan chuckles] I don't know, it's just--
Dan Epps: Yeah.
Will Baude: It seems very strange. Whole case is pretty strange.
Dan Epps: Yeah.
Will Baude: Yeah.
Dan Epps: Well, I think we should probably cut it there.
Will Baude: Yeah. Do you know, I was trying to figure this out also, the Best Budget Inn in Oklahoma City this took place?
Dan Epps: Do I know the Inn?
Will Baude: Well, I was trying to figure out if the hotel is still operational.
Dan Epps: I certainly wouldn't want to stay there. [Will chuckles] [crosstalk] -the scene of this horrible crime.
Will Baude: Right. It has a Yelp page, but no reviews.
Dan Epps: There's a TripAdvisor for the best Budget Inn in Tulsa. I believe that there were two locations of best Budget Inn.
Will Baude: This one is the Oklahoma City one, I think.
Dan Epps: Yeah. But I think they're owned by the same guy. I think they're owned by Van Treese. The one In Tulsa has one star out of five on TripAdvisor.
Will Baude: Yeah. Tulsa's nice.
Dan Epps: Is it?
Will Baude: Well, Oklahoma City has this amazing memorial to Oklahoma City bombing, actually, which is a really beautiful moving site. I've stopped at on a couple of cross-country road trips.
Dan Epps: I haven't seen that.
Will Baude: Also, excellent barbecue, in general.
Dan Epps: Not at the memorial.
Will Baude: [chuckles]No. Oklahoma City--[crosstalk]
Dan Epps: Two separate thoughts, right?
Will Baude: Otherwise, Oklahoma City is one of my two favorite cities in Oklahoma.
Dan Epps: Okay. You have a hierarchy?
Will Baude: Yeah. Norman first, and then Tulsa and then Oklahoma City.
Dan Epps: Norman. Is that where the university is?
Will Baude: Yeah.
Dan Epps: Why is that one of your favorites?
Will Baude: Oh, it's just nicer.
Dan Epps: Okay.
Will Baude: It's university town. Their university is Oklahoma City. All right, I'll stop casting shade on the state of Oklahoma.
Dan Epps: Well, you're really just casting shade on the city of Oklahoma City, right?
Will Baude: It's lovely city. Has a lovely memorial.
Dan Epps: All right.
Will Baude: Good barbecue.
Dan Epps: Thank you very much for listening. Please rate and review on the Apple Podcast app or wherever you get your podcasts, and do whatever you can in general to help us find new listeners. We are always looking to grow our audience. Go to our website, dividedargument.com, where we have transcripts of the episodes up fairly soon after they come out. Store.dividedargument.com, where we sell various types of merchandise. You can send us an email, podividedargument.com, and you can leave us a voicemail, 314-649-3790.
Will Baude: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan Epps: And if there's a long delay between this and our next episode, it's because we've been held indefinitely in abeyance.
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