We (of course) break down the Court's opinions in Trump v. Anderson, the Section Three case from Colorado. We also discuss the Court's cert. grant on Trump's immunity from criminal prosecution, and several other opinions on the orders list, dealing with rent control, magnet school admissions, and campus speech.
We (of course) break down the Court's opinions in Trump v. Anderson, the Section Three case from Colorado. We also discuss the Court's cert. grant on Trump's immunity from criminal prosecution, and several other opinions on the orders list, dealing with rent control, magnet school admissions, and campus speech.
[Divided Argument theme]
Dan: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, big episode for us. Very, very big time. There's a case everyone has been waiting for us to talk about, and it's finally out. And that is the Great Lakes Insurance v. Raiders Retreat Realty, the admiralty case.
Will: Absolutely.
Dan: We will talk about that a little bit. But as everybody in the universe knows, we are recording this Monday, March 4th. Earlier today, the court released its opinion in Trump v. Anderson, reaching the outcome that I think we all were pretty sure they were going to reach, reversing the Colorado Supreme Court's decision that Trump was ineligible to be on the ballot because of Section 3 of the 14th Amendment. So, Trump is not disqualified for reasons we'll talk about in a minute. But anything we should discuss before we get to that? There's been some other happenings.
Will: Yeah. There was a big orders list on February 20th we didn't get a chance to record about. I don't know if there's anything we need to talk about there, but there were a lot of separate opinions about one with Thomas Jefferson admissions policy and its race consciousness. Do you remember?
Dan: Yeah, it's a sort of magnet school in Northern Virginia that historically has had a very high proportion of Asian students. And in recent years, they changed their admissions policy seemingly, as I understand it, with a pretty clear goal of changing the racial makeup of the student body. And there was a constitutional challenge to that. But the court has decided not to get involved, and that has not been held unconstitutional below.
Will: Right. And I think it came to the court once on the shadow docket in a request for a stay, but the court decided not to intervene. Petition for cert is denied. Justice Alito and Thomas would have granted, have a 10-page opinion about that. This is one of those where I can't tell, and I guess we're not supposed to be able to tell, is that because the court does not want to take this issue. The issue being to what extent sort of race-neutral policies that are motivated by affirmative action goals are unconstitutional. Or is that because they just don't want to take it in this case, but they'll get to it pretty soon. I don't have an instinct about that. But it's obviously the big elephant in the room after Students for Fair Admissions.
Dan: Yeah. And so, two Justices, Justice Alito, joined by Justice Thomas, really did want to join the case with a 10-page dissent from denial by Justice Alito, but apparently was not able to get two more colleagues to join in on that.
Well, on that orders list before we get to more recent things, one interesting case that has an issue that's come up, I think, on the orders list once or twice in recent years was this issue about New York City's rent control law. I kind of would like them to take this case or this issue at some point. Basically, some apartments in New York City are regulated such that the tenants basically have the permanent right to renew their leases at a very, very low, below market rate, like forever, for all time. And there's nothing that the owners can do, they can't kick them out, they can't renovate.
Will: And their heirs too.
Dan: Yeah. I mean, it goes on indefinitely. So, the only thing they can do is figure out-- buy people out. And there's an argument that this is a taking for purposes of the Fifth Amendment. Strikes me as not like a crazy argument, but the court has turned down at least one of these before. And I recall here we have a dissent from denial or a statement respecting denial from Justice Thomas sort of saying, "He's not dissenting." He's sort of saying, "Maybe in a future case we should take this." But I feel like there was one of these, like a few years might, or at least there was a case that-- at least this issue came up before the court a few years ago, and I don't remember someone wrote separately. Is that ringing a bell?
Will: It's not ringing a bell. I'm sure you're right. These were a set of cases. I think Richard Epstein is affiliated with these cases that people thought might be the good vehicle. Justice Thomas suggests that he doesn't like the pleadings because they don't adequately prove standing, which might be an invitation to counsel on McCarthy to file a better set of pleadings next week. But yeah, I think this would be a great issue to review. Takings clause, something the court's been very interested in lately. It seems to probably have comfortably five votes to keep moving the law, the doctrine on that, and be great for the country to end New York City's rent control regime.
Dan: I don't think it would be great for people in New York. I don't think it really has much impact on people in Topeka. Right?
Will: Probably affects the economy and New York-- [crosstalk]
Dan: Ripple effects for the economy?
Will: Yeah. I mean, maybe it's bad because maybe more people from Topeka can move to New York because then they'll build more housing in New York and so on. But New York's part of the country, [Dan chuckles] so if it's good for New York, I'm willing to count them.
Dan: You're saying what's good for New York is good for the country?
Will: I'm saying New York is part of it.
Dan: Some of your buddies might disagree with that.
Will: They're not my buddies. [chuckles]
Dan: We'll find out by the end of the episode which buddies you have left.
Will: You. I think you're going to be the only one I have left.
Dan: I'm always here for you, Will. There's nothing you could do to drive me away.
Will: You're trolling me on Twitter right now, Dan.
Dan: Yeah, but in a loving way.
Will: Not-- [crosstalk]
Dan: It's not even really trolling you. It's more mocking the kind of reception you're getting. I tweeted earlier today. Shortly after the decision came out, I tweeted, "Now that SCOTUS has unanimously agreed that states can't keep Trump off the ballot using Section 3, will left-wing progressive hacks like William Baude pushing this theory confess error?" Right?
Will: Mm-hmm.
Dan: Obviously the joke is that you are not a left-wing progressive hack.
Will: I thought the joke was that I was wrong.
Dan: No, actually, I don't think I've ever taken a position in that. It's really just a joke about people miscategorizing you. J. D. Vance suggested you were a left-wing hack. Did you see this?
Will: Yeah.
Dan: He had this long Twitter-- long post, he has a blue check, so he gets to do these long posts. This was a couple months ago in the wake of the Claudine Gay plagiarism firing, and he was going through and explaining how all of our elite institutions that educated him, by the way, are corrupt and full of mediocre people. He said, "This is why you should scorn the attorneys who tell you that Donald Trump committed insurrection, should be thrown off the ballot. They have no special legal knowledge. They are political hacks pretending to be lawyers, and they are not smart or accomplished. They have a credential from an institution that cares more about box checking than merit." I think you have special legal knowledge. I think you have very special legal knowledge, Will.
Will: [laughs] Do you mean-- [crosstalk]
Dan: I rely on you for your special legal knowledge. I've been texting you frequently as I teach con law for the first time this semester with abstruse questions, some more abstruse than others. That is an unfair criticism. And I also, to be clear, I do not think you are a hack and certainly not a progressive left-wing hack.
Will: Thank you, Dan. Thank you for all that. I guess we'll find out by the end of the episode whether I'm going to confess error.
Dan: I don't need you to. I'm not going to ask you to do that. That was a joke. That was not me trying to say you were wrong. I don't really--
Will: Our listeners are very attentive for slights on my honor, Dan. They're going to come after you if you're not careful.
Dan: Not everybody on Team Baude, including the leader of said team, is always great with the sense of humor. You've got some stuff you think is funny, but then other stuff, just kind of does not land on your side. So, I don't know.
Will: [unintelligible 00:07:49] didn't like that thing about Prince and basketball?
Dan: It's been various things. I mean, it's not any one thing. You don't have to find everything funny, but I just feel like there's been like six things now. You're just like, "I don't get it. Explain the joke to me."
Will: I find Trump v. Anderson hilarious. Sorry.
[chuckles]
Dan: Well, I'm looking forward to finding out why in a minute.
Will: Yeah, let's see. Anything else?
Dan: So, big thing, obviously, Supreme Court, according to random people who email me, has revealed itself to be full of partisan hacks by their decision to grant cert in the case, presenting the question of Trump's immunity from criminal prosecution in the DC case.
Will: So, can you explain this to me? What is the theory about which the court-- why does granting cert in the decision make them hacks?
Dan: To be clear, I do not endorse this theory, but I think theory is this issue is settled by the DC Circuit. They're with this opinion, "Let's go ahead and have the trial." Court is just trying to delay/they want to reverse and declare that he is immune, and that will be bad. I don't think it's a very well-developed theory.
Will: It is that Trump is so obviously bad that even granting cert to review whether or not his claims have merit is only a hack would do or is the idea that--?
Dan: Well, I think it's slightly more subtle than that, which is just that this case is so obviously beneath the Supreme Court's review and that the only reason to grant cert would be because they were going to do something political/they want to delay the trial till after the election.
Will: There's one slightly more sympathetic version of this, I understand, which is it did take them three weeks to grant it. And it's a little weird to sit on it for so long if you're then going to grant it and argue it so fast. Maybe you think they're trying to run up the clock in some weird way, although I have a new theory of what they were up to.
Dan: Okay, is this theory, or are you about to drop it, or should I have to wait?
Will: Let's call it irresponsible speculation. Okay, so they announced their granting last week, right?
Dan: Mm-hmm.
Will: My theory is--
Dan: It's going to be argued in late April.
Will: Yeah. And last week, we also now know they're finalizing the opinion of Trump v. Anderson. My theory, my irresponsible speculation is that there was some attempt at some kind of horse trading. Like, if Justice Sotomayor, Kagan, and Jackson will agree to join the per curiam, we won't grant cert, maybe. But once they won't play ball on Trump v. Anderson, we won't play ball on the immunity grant. You can imagine various other permutations. My theory is that--
Dan: You think that would have played out explicitly? I mean, I think that kind of horse trading is, I feel like, I don't doubt that it happens, but it's also the kind of thing that there's this very strong norms against linking two cases together in that way.
Will: You're right that it's irresponsible. I mean, there are lots of ways it could happen. It could happen at a Justice-to-Justice level. It could happen at a one Justice who joined the per curiam, or what the per curiam could be saying, I think it's really important for institutional norms we try to act collectively on this. And then, the other Justice could say, "No, this is too important." And then, the next day could say, "I think it's really important that we do this." There are various ways you could--
Dan: Yeah, but I mean, it's the kind of thing one might speculate the chief trying to broker. But the chief also doesn't have all the cards in the immunity situation because there's only four votes needed to grant, and he would have to convince two conservative colleagues not to grant in order to have any leverage.
Will: That's true. So, I'm working it out. I'm working out my theory. Also, in the immunity grant, there was this funny thing where, in addition to the grant, the court did not stay the lower court proceedings, but it did instruct the DC circuit to continue withholding the mandate on its decision, which it was already doing, which I take it is supposed to act as a kind of backdoor stay.
Dan: What does that mean, practically?
Will: I mean, I don't know that this has ever happened before. Jack Goldsmith was posting about this. Exactly what it is and where it comes from is all unclear. I take it that's in some way supposed to reflect a stay. Like, the DC Circuit was holding its own mandate pending Supreme Court review, and so now it's like the DC Circuit should not let go of this case-- [crosstalk]
Dan: And it can't go back down to the trial court.
Will: If you believe that appellate review automatically pauses the district court proceedings on some issues some of the time, issue the court was split about last term in a case called Coinbase that we talked about repeatedly. If you have some priors about that, then it presumably has some effect, but it's kind of a little bit of like a bank shot stay, I think. I saw some speculation that maybe it doesn't take five votes to do that. Maybe it only takes four votes. I think that's probably wrong. Or maybe it doesn't have to meet the stay standard. If for instance, you were granting cert, but thought that Trump had no chance of success in the merits because the court has already talked about the issue and knows he's going to lose, maybe you wouldn't be able to in good conscience grant a stay, but you could do this because it's a weird thing. Maybe it's also a piece of whatever bargaining is going on if there's bargaining going on.
Dan: Yeah. I don't know. But if they're not hearing the argument until late April, when do we expect that decision to come down? Is that now actually going to just be a last day of the term decision?
Will: Yeah. I think so.
Dan: It's introducing a significant amount of delay.
Will: Yes.
Dan: Maybe potentially like four months. Four months of delay.
Will: Yes.
Dan: Okay, well, we will surely dig into that case. That's probably one of the rare cases where we will preview the argument. It's not a promise, not a binding promise, but seems quite plausible. My teaching semester gets done a little earlier than yours, so I will have a lot more time come mid-April.
Will: Good. Just when I started issuing the good stuff.
Dan: Yeah. When do you stop teaching?
Will: I'm not teaching spring quarter.
Dan: Okay. So, we're going to be fine. We're going to be great. Let's have a robust late April, May, June.
Will: Yeah.
Dan: I'm going to travel for part of June. I'll be around for the second half of it when things really get going. We'll get some episodes out. Take off in July. Come back in July. We can do some cleanup later in July.
Will: Yeah.
Dan: [crosstalk]
Will: This podcast is going to take off.
Dan: I'm excited. Got my teaching schedule for next year. Looks a little bit lighter than this year, so I should have lots of podcasting time. So, lots of good stuff in the show's future, I think. As long as you're not giving [crosstalk] up on the whole enterprise of law after today.
Will: Me?
Dan: Yeah.
Will: [laughs]
Dan: You're not going to die of a broken heart after the court rejected your theory.
Will: Did they?
Dan: Well, another thing we're going to find out in a few minutes. Before that, also on the orders list today, anything from the prior list that we should talk about? There was like a death penalty thing that I didn't dig into sufficiently to say anything remotely intelligent about it. But it's a dissent related to a cert petition. But it's not a dissent for denial in a case on the orders list today called Speech First, Inc. v. Sands. And this is a first amendment case that was challenging a bias policy that was in place at Virginia Tech. And most of the court looks, like potentially six of the Justices, although you never know for certain with these things on the orders list, but it looks like potentially six agreed to grant the petition and vacate the judgment below, which was a fourth circuit opinion that ruled against the First Amendment plaintiffs and dismissed the decision as moot under Munsingwear.
Will: Our old friend.
Dan: Yeah. Something that we have talked about a number of times, and then we have what we expect to be regular practice, which is the Justice Jackson two-line dissent. She doesn't think the court should Munsingwear nearly as much as it does. So, she just says, "In my view, the party seeking vacatur has not established equitable entitlement to that remedy." See her concurrence in the judgment in the Atchison case that we talked about earlier this season, where the court dismissed the case challenging the hotels' ADA tester claims as moot, and she said, "We shouldn't do that."
Will: Good.
Dan: But then we have a more fulsome dissent by Justice Thomas, who actually wanted to grant the case and directly gets into the First Amendment issues in the case. I guess the Fourth Circuit case goes away, but I guess there had been a circuit split on that issue. Some other courts of appeals have come out the other way, finding a First Amendment violation and he points out that various schools have these policies. There's an argument that they chill student speech, but some courts have rejected the challenge on the ground the Fourth Circuit rejected the challenge here not on the merits, but on the ground that the organization bringing the claim lacked standing, although sort of in a way that reaches the merits. They said, "The organization lacked standing to bring the claim because the policy does not objectively chill student speech." [crosstalk]
Will: [crosstalk] -work.
Dan: Yeah, I was a little confused by that. It seemed like that's [crosstalk] merits-- shouldn't whether it chills the just speech--? That doesn't make sense to me. Does that make sense to you?
Will: No.
Dan: Okay.
Will: It does not make sense to me. Now, Justice Thomas also disagrees with the court's apparent view that the case is moot, and I don't totally understand why. I guess it's because you never know. They might put the-- they've changed the policy, and then they got sued, and so they might bring it back.
Dan: So, he has a footnote 2 on page 2, which he kind of gestures at the voluntary cessation doctrine. And I guess other courts of appeals have found no mootness in cases where the school has changed their policy to try to avoid a challenge.
Will: Yeah.
Dan: He doesn't clearly even say he's endorsing that. Right?
Will: It's worded a little funny.
Dan: Yeah. "Of course, a defendant's voluntary cessation of its challenged conduct does not always moot a case. And then, he cites a case for that and says, "I thus refer to Virginia Tech's policy in the present tense."
Will: Cases like this are not always moot. I therefore proceed.
Dan: [chuckles] Yeah. "I therefore would reach the merits." I don't know-- To the extent the court wanted to weigh in on the standing issue, I guess it would have discretion to do that, which is something that also came up in Atchison. But he also-- I guess even if it were moot, they could still grant it under that theory.
Will: Yeah.
Dan: If the court wanted to decide the standing question in the other direction, then it would have to reach mootness because the court has discretion-- Among jurisdictional issues, the court has discretion of which one to go with first. But it would have to deal with both of them before it could actually reach the merits of the case.
Will: Right. I'm just catching up here. So, on the standing thing, do you remember this case, Clapper v. Amnesty International?
Dan: Yes. Taking us back a little bit. But that's the one about surveillance.
Will: [crosstalk] -surveillance.
Dan: Foreign surveillance with phone calls and things.
Will: Non-foreign lawyers upset that their calls with other people might be intercepted pursuant to various surveillance authorities.
Dan: Without any evidence that-- without any reason to think that any particular calls were being surveilled.
Will: Right. And then, one of their arguments was-- they couldn't prove they'd been surveilled and then they said, "Well, regardless, we're engaging in sort of costly self-censorship to avoid being surveilled." That's standing. And the court said they don't have standing because they couldn't prove they were being surveilled. And if they couldn't prove they were being surveilled, the fact that they were self-censoring to avoid surveillance was their problem, not an injury. And I think something similar may be going on here. I'm not exactly sure what the injury is, but I think part of the problem is that the members of Speech First are like saying, "Well, we're not speaking because we're afraid of being bias reported." But that under Clapper, might not be enough for standing unless-- I'm not sure whether members of Speech First have themselves been biased.
Dan: Yeah. But I mean, at least it would be clear that they're students who are potentially subject to this reporting policy. I mean, there have to be some situations where there's a rule that hasn't yet been applied to you but is chilling. If the university had a rule that says anyone who praises democrats will be immediately expelled, you shouldn't necessarily have to get expelled before you can file suit.
Will: Right. But at least something confusing is going on. Maybe I just don't totally get the merits of this and maybe it kind of relates to the people reporting you are not state actors. These are just your classmates.
Dan: Yes, but then through a framework that has been created by the university.
Will: Right. That we fear is going to be misused.
Dan: Yeah.
Will: I mean, maybe it is giving the merits, but it's just a little confusing. Sort of like some of the pending current cases on regulation of social media. Just who's violating whose speech here, I find just a little confusing [crosstalk] but--
Dan: The Fourth Circuit sort of said there's no standing here and no chilling because they have this reporting system but I guess there's this bias response team which, according to Justice Thomas, lacks authority to discipline or otherwise punish students. So, I don't know.
Will: Well, the Fourth Circuit says, "Speech First did not offer any evidence that BIRT referrals," I think that's the bias response team, "occur with any frequency or that they are more likely to result in discipline than referrals from other members of the university community. In fact, the only example of a BIRT referral to which Speech First points ends with the referred student receiving no sanction."
Dan: Yeah, I guess that's not the same thing as saying they never can though.
Will: Well, right. Again, maybe somebody's self-censoring. Yeah, I just find this confusing. I'm not saying Justice Thomas is wrong. He understands his case and I don't, but--
Dan: And you think he's one of the all-timers, right?
Will: Sure.
Dan: You told me he was like one of the greatest Justices of all time right?
Will: Sure. Well, not after he joined [unintelligible [00:21:59]Trump v. Anderson
Dan: Does that mean it's time to talk about it?
Will: Sure.
Dan: I mean, I think that this case came out-- Basically, if you had to make bets on how this case would come out, it would look very close to this decision, after the argument, at least, is what I mean. Where at the argument, it became quite clear there was not going to be votes and possibly any votes in favor of keeping Trump off the ballot and affirming the Colorado Supreme Court. And it seemed like the rationale for that was converging around some kind of idea that this is something that Congress has to do, or at least this is something that states don't get to do with respect to ballot access.
Will: Yeah. I think even it seemed like it was going to be a little bit of each of those. I think if you said, well, are they going to say that states can never-- or that Section 3 is entirely unenforceable until Congress acts, you would have said, "Well, no. When they enforce it against state officers, maybe that's different." Are they going to say states can never decide whether a candidate is qualified to be president? I think we'd all agree no. Justice Gorsuch has that unpublished opinion saying, "Of course, you don't have to put foreign-born citizens on the ballot." But somehow those two things together with a little dose of Anderson v. Celebrezze, that Justice Kagan kept bringing up at oral argument, somehow that all adds up to, "Reversed, don't ask us too many questions."
Dan: Yeah. And so, it is going to look somewhat like that. Let's just tell you the breakdown and then maybe walk through. First of all, we have a per curiam, so we don't know who the authoring Justice of this opinion is. A lot of speculation in advance that this would be the chief. You know his writing, does this seem chiefy here or does this seem like somebody else?
Will: Hmm.
Dan: It's not a super flashily written opinion.
Will: Right.
Dan: It doesn't have any obvious kind of like Gorsuchisms to me.
Will: No. It could be a chief opinion. It could be a Kavanaugh opinion.
Dan: It's short. If you had to put money on it?
Will: If I had to put money on it. If I had to put money on it, I'd say it's a chief opinion.
Dan: That's what I would too. In part because presumably, even though it was kind of argued under weird timing circumstances, he still would have made the primary assignment, right?
Will: Sure.
Dan: In the first instance, and it just seems like, much likelier he would have assigned it to himself.
Will: If you imagine they were trying to get something that could be unanimous unsuccessfully, he might have been the one to attempt that.
Dan: Yeah. Okay. So, it is a per curiam, joined at least in part by all of the conservative Justices, joined in full by all the conservative Justices save Justice Barrett, who joins it only in part. Talk about why in a moment. And then, you have a concurrence in the judgment that agrees partially on the rationale but partially disagrees, drafted by the three liberal Justices collectively.
Will: Right. Although I don't know if you saw this on Twitter.
Dan: Yeah.
Will: But I gather I haven't done this myself, that somebody who tried to poke around in the metadata on the opinion, could find evidence that the original draft of this opinion was a concurrence in the judgment in part and dissent in part by Justice Sotomayor.
Dan: Yeah, it still works if you search for the word "dissent" in the PDF, it highlights the part of the opinion at the top of the concurrence that says "concurring in the judgment."
Will: Yeah.
Dan: And people were kind of like making a lot of this. My supposition is actually the following. First of all, something like this typically is going to get assigned to somebody. Someone's going to write it in the first instance. They're not all sitting there and workshopping every line collectively. And so, Justice Sotomayor wrote it, and maybe there was a decision later that, "Let's just sign it all, do it that way."
Will: For a per curiam dissent.
Dan: Yeah, kind of Cooper v. Aaron kind of thing, where everybody signs. And then, it may have been kind of styled initially by the clerk who drafted it or whoever as partial dissent. But styling it as a partial dissent does not really make any sense because the disposition of this is either going to be affirm or reverse, right?
Will: Mm-hmm.
Dan: And so, styling it as a dissent sort of in some way makes sense because of this disagreement with the reasoning that we'll talk about momentarily, but it actually doesn't really make sense as a matter of kind of procedure. And so, at some point along the way, someone, the reporter's office or whoever, might have just been like, "Technically, it doesn't make any sense to call this a dissent because you're not dissenting with respect to the judgment," which is normally what that means, and so they fixed it. I don't think it suggests at all that Justice Sotomayor was going to keep Trump off the ballot partially or something. That doesn't make any sense.
Will: It doesn't make no sense. I mean, you could imagine a world where she was not ready to affirm because there was something she needed to remand on some issue but didn't agree that it should just be reversed on the mandate she'll issue forthwith or something. I don't know.
Dan: Yeah, I guess that's possible.
Will: If there's some issue that still needs to be reached. I don't know.
Dan: So, it would be a concurrence in the rationale, but a dissent with respect to the judgment of a vacatur rather than a remand--
Will: Yeah, or--
Dan: Rather than a straight reversal.
Will: But you'd also imagine that it was written at a time the majority opinion said something different. So maybe, there was something to dissent from before that's gone now. Or something to concur in before that's gone now.
Dan: Also, the case should be reversed with instructions to declare Donald Trump as the president or something.
Will: The case should be reversed with instructions to strip Will Baude of his tenure as a University of Chicago law professor because he is a lib who has no special legal knowledge.
Dan: But you could disregard that order because the Colorado Supreme Court has no jurisdiction over you. You are not physically present in Colorado, do you have any minimum contacts with the state of Colorado?
Will: Well, but the US Supreme Court has jurisdiction over me.
Dan: That's true.
Will: [crosstalk] -part of the case, so-- [crosstalk]
Dan: That's true, but if it's remanding with instructions to the Colorado Supreme Court, yeah. Are you still going to be welcome at the clerkship reunions after this?
Will: I don't know.
Dan: No cite for you and your coauthors?
Will: No sight for anybody. There's no legal scholarship cited in here. So, that's nice at least.
Dan: Yeah. Not even anything about the influence of Kant on 18th century Bulgarian evidence law or whatever.
Will: Or whether the president is an officer of the United States.
Dan: Yeah. There was a while everyone was saying that was what this case was going to be about, and that seems to have completely disappeared.
Will: So, one interesting thing, just to put it out there, is one topic that Paulsen and I did not really discuss in our article was this question of, state-- I mean, state authority-- I guess we do say that states often judge the qualifications of presidential electors, but we don't really talk much about it. So, it's not really something we--
Dan: Electors.
Will: Yeah.
Dan: Of candidates.
Will: Of presidential candidates. We think the general sort of principle applies here. But if you thought there was some general principle that states are not supposed to decide who's qualified for the federal ballot, I don't know. We didn't talk about like Anderson v. Celebrezze or these kinds of election law issues.
Dan: Okay, I want to talk about that momentarily. Should we kind of just describe the majority's holding and then talk about it and then talk about the--
Will: I want you to tell me what you think the majority opinion holds, and then I want to ask you questions about it.
Dan: Okay, you didn't set me up for this. So now, I'm a little nervous. I will try to do that. Okay, so I'm going to describe the opinion. Its per curiam begins with an overview paragraph, says, "President Trump challenges the Colorado court's decision on several grounds. Because the Constitution makes Congress, rather than the states, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse." Okay, so right there, this is going to be the focus of this opinion, is going to be about Congress' role. And so, this breakdown will be important. But we have part two of the opinion. So, part one kind of background.
Part 2A, kind of goes through the overview of Section 3 and how it works, and then has, I'd say, a couple critical paragraphs. It says, "The Constitution empowers Congress to prescribe how those determinations," that is the determinations of who is ineligible, "should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass appropriate legislation to enforce the 14th Amendment." And then, cites some basically legislative history from the framing of Section 3, suggesting an understanding, although I'm confident you're going to tell me in a second--
Will: Well, it's legislative history from the framing of a statute in 1870.
Dan: Yeah. Okay. Well, that's a thing from Senator Howard, is about when the amendment was framed. But then, yes, subsequently, they're also looking at the enforcement legislation debates, which strikes me as not particularly and sounds like it strikes you as not particularly relevant. That part of the opinion, it's not 100% clear, but that opinion seems to be saying that this isn't exclusively a power for Congress. Maybe, but then it says, "To be, this case raises the question of whether the states, in addition to Congress, may also enforce Section 3. We conclude that states may disqualify persons holding or attempting to hold state office, but states have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the presidency."
And goes through that, does kind of a textual analysis. Didn't find super, super compelling, because I do think that at least the view that Congress has to do something affirmative seems to be hard to square with the provision that allows Congress to remove disability. But it's fair enough that the Section 3 does not say anything about enforcement by states. It says there's no tradition of state enforcement. It is Congress that has long given effect to Section 3 and then suggests it's going to cause all these problems, blah, blah, blah.
And then, what we see is 2A is the controversial part, the part that seems to say, although--
Will: Something-something Congress? [chuckles]
Dan: Yeah. I see where you're going with this, is not super, super clear. Seems to say that Congress has to-- at least Congress has authority here. Does Congress have to pass statute? Not 100% clear, but Justice Barrett decides not to join that part. So, she joins parts one, the background section, and 2B, which is the thing that says states have no power to do this but does not join 2A, which she sort of seems to think is about whether federal legislation is the exclusive vehicle through which Section 3 can be enforced. She says, "This case does not require us to address that complicated question." Sort of suggesting, I think, that is what she understands part 2A of the opinion to be doing.
Will: Yeah.
Dan: And then, the three Justice dissent says, "In this case, the court must decide whether Colorado may keep a presidential candidate off the ballot on the ground that he is an oath-breaking insurrectionist and thus disqualified. Allowing Colorado to do so, would, we agree, create a chaotic state by state patchwork at odds with our nation's federalism principles" That is enough to resolve this case. Yet the majority goes further.
"Even though all nine members of this court agree that this appendant, insufficient rationale resolves this case, Five Justices go on, they decide novo constitutional questions to insulate this court and petitioner from future controversy. Although only an individual state's action is at issue here, majority opines on which federal actors can enforce Section 3 and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the 14th Amendment. In doing so, the majority shuts the door and other potential means of federal enforcement."
Okay, so the separate opinion seems to understand the majority as doing that as the broad version of the "Congress has to do it" rationale. But I think this is where you're going, that maybe the part of the 2A of opinion is not like super, super clear on that.
Will: Yeah. We could start with just so-- I assume, if the same lawsuit were filed in the District of Columbia about whether he could be on the DC presidential ballot, because DC has presidential electors. DC is not a state. In fact, was given the power to host presidential elections separately by an amendment in the 20th century. But I take it we think-- the opinion would come out the same way. The DC courts would be forbidden to decide Section 3 issues because only Congress can act.
Dan: That the court would say under this opinion, that DC can't do it?
Will: Yeah.
Dan: Based on 2A?
Will: Yeah.
Dan: Yes, for sure.
Will: Now, what about single houses? So not president but suppose there's a claim that some member of Congress is an oath-breaking insurrectionist.
Dan: Yeah, this is what I was wondering.
Will: And there's an attempt to either expel them or refuse to seat them. That's not Congress. That's one house. So, is that forbidden?
Dan: I was wondering that.
Will: It's weird. The court describes that the true fact that in the years following ratification, the House and Senate exercised their unique powers under Article 1 to adjudicate challenges.
Dan: Yeah.
Will: In fact, almost all of the successful Section 3 applications to non-federal officers ever in our history have been by one or the other house, like during insurrection and then they did this to Victor Berger during World War I. So, are those now unconstitutional? Or were they speaking loosely when they said Congress, they'd be like, "Yeah, you know, the House, that's part of Congress."
Dan: Yeah, I was wondering this. I was asking my colleague Ron Levin, listener of the show, about this, and he also expressed some uncertainty.
Will: Well, I polled the faculty lunch table on this this morning, and the overwhelming majority thought, yes, those are now forbidden. The House and Senate cannot exclude those who gave aid and comfort to the enemy or insurrectionists.
Dan: Okay, so that's interesting.
Will: I'm not sure that's right. But just that's the view of a number of people with-- [crosstalk]
Dan: That seems wrong to me.
Will: Can't be right.
Dan: Yeah, it seems like it can't be right.
Will: So, if Victor Berger is suddenly vindicated, you think they would have told us.
Dan: Yeah. Because what we know is that each House is titled to be the judge of the elections returns and qualifications of its own members. Powell v. McCormack says each House cannot make up new qualifications. But presumably, the House still has the authority to determine the legitimate qualifications that come from the constitution. That's sort of what the case holds. So, it would be strange to interpret this as saying, "This is a new qualification for federal office holding, but this one is one where each House is not allowed to be the judge."
Will: So, Powell reserves this in a footnote, the question of Section 3 of the 14th Amendment and whether that counts as a qualification or not. And if you thought that Section 3 is not a self-enforcing qualification, like you're not disqualified until Congress says so, then you'd think it's not a qualification. Now, I can't tell if that's what Congress thinks, the court thinks. But on the other hand, if you thought that each House has special powers under Article 1 so they can enforce Section 3, then we're back to the question of why states who have unique powers under Article 2 can't also enforce Section 3. So, I'm just unclear what happened to Congress. Can I do a couple more?
Dan: A couple more questions?
Will: Yeah.
Dan: Well, I was also going to ask about a thing that I imagine you were going to ask about, which is that the opinion doesn't seem to answer, but can't states keep non-citizens off the ballot for federal offices?
Will: I think they can still do that.
Dan: Okay.
Will: But I'm not sure.
Dan: Does the opinion clearly say why?
Will: Wait, wait, so just--
Dan: Okay, sorry.
Will: What about impeachment? Can a single House, the House of Representatives, impeach somebody for violating Section 3? Or do they have to wait until a statute is passed? Because they did that actually, like the initial impeachment cited-- the second Trump impeachment cited Section 3. There was no congressional legislation, so I'm unclear on that one. Can the vice president invoke the 25th Amendment in cases presenting Section 3? Does that require Congress?
And then, this legislation thing, I also find confusing. The court says Section 3 enforcement legislation must reflect congruence and proportionality, Meat [unintelligible 00:38:27] City of Boerne, must be like the federal incitement of insurrection statute, which is the only legislation they are aware of to enforce Section 3, they say. So, what about the Electoral Count Act? We've talked about this before, but the Electoral Count Act says that Congress can throw out electoral votes for somebody that are not regularly given. And the consensus is that includes people who are not qualified.
Dan: Say the language, regularly given?
Will: Regularly given.
Dan: Okay.
Will: That's language that dated back to 1887 and was thought to include at least the case of Horace Greeley, who was dead and therefore not qualified to hold office. There's an interpretive dispute of whether to interpret the statute that way or whether it means that or not. But I can't even tell, does the court think that it's ruling that out? That's the big chaos scenario. It has this thing at the end about how terrible it will be to nullify the votes of millions and change the election results if Section 3 enforcement were attempted after the nation has voted. That's in the last substantive paragraph before the three stars. But there is a statute that arguably requires that or allows that. Do you think they've spoken to that, or do you think they've left that off the table, or do you think they are hoping we don't know about that statute?
Dan: Maybe they weren't thinking about it.
Will: Okay. I mean, they must have known about that.
Dan: I mean, they decided this case very quickly.
Will: Yeah. But-- Okay.
Dan: It was clear enough from the briefing, you think?
Will: Well, I don't know if it was in the briefing, although I think it was mentioned in the briefing as one of the reasons that Trump argued they should have reached the officer of the United States issue, that was the only thing that take off the table-- Only getting to the merits could take off the table of some of the [unintelligible 00:40:04] scenarios. That was like the argument that you shouldn't use this off ramp.
Dan: Yeah.
Will: And I can't even tell if they think they've ruled out that off ramp or think they have not ruled out that off ramp or hope we can't tell. You can imagine a world where they think, "We haven't technically ruled it out, but we've now made it sufficiently unclear if it's available that maybe that'll scare people away from using it." But I'm genuinely unsure. Then, we have the question about what states can do. You raised this question. Can states still judge other qualifications for president? I think the answer is yes.
Dan: It would be weird if they couldn't.
Will: It'd be weird if they couldn't. The court relies in part on the practice, but the practical difficulties and the practice to say, States can't do this," and maybe we think that enforcing some of the other qualifications has a different practice and doesn't present the same practical difficulties.
Dan: I mean, it could.
Will: They could.
Dan: Alabama could have tried to keep Obama off the ballot because he was born in Kenya or something. Some rationale like that.
Will: There were cases about this. I remember, I almost had to go to the Illinois Board of Elections and testify that Ted Cruz was a natural-born citizen when there was a fight whether he could be on the primary ballot in Illinois in 2016.
Dan: There was an issue with McCain too. McCain was born in the Canal Zone.
Will: Yes. Steve Sachs has an article about this.
Dan: Yeah.
Will: And then, I can't even tell exactly what I think they've ruled out. And then, my other favorite part of this on the dicta holding thing is the last paragraph where they're arguing with the dissenter concur people, the non-joiners. And so, they say, we're all in agreement here. The only thing they disagree is that we take into account the distinctive way Section 3 works and the fact that Section 3 vests in Congress power to enforce it. Again, does the majority mean Congress? Then it says, "It is the combination of all the reasons set forth in this opinion, not, as some of our colleagues would have it, just one particular rationale that resolves this case. In our view, each of these reasons is necessary to provide a complete explanation for the judgment the court unanimously reaches." I take it this is an attempt to say, "You might think this is dicta, but we say it's not dicta because we say it's necessary."
Dan: Isn't it kind of undermining the breadth of the original claim about Congress's role?
Will: Say more.
Dan: Well, he says, "Well, we're just taking into account the distinctive way Section 3 works. But there are other reasons why the states lack power to enforce this provision." And so, maybe if all of these reasons are necessary, maybe it's unclear exactly how much weight to put on each one? I'm not sure.
Will: Yeah. But it's also like, I feel like--
Dan: It's muddying the waters.
Will: It's a classic one-all problem. If you include a bunch of unnecessary digressions in an opinion so that they're not part of the holding as they're not necessary, can you make them the holding by then saying all those unnecessary digressions are necessary?
Dan: He's not saying each of these reasons is necessary to support the judgment-- necessary to support the opinion of the five Justices. They're saying each of these reasons is necessary to provide a complete explanation for the judgment the court unanimously reaches.
Will: Yeah.
Dan: Sort of saying, "You need to have each of these points to support the whole judgment."
Will: Yeah. Well, so what's going on? I have two hypotheses for what's going on. Another way to ask it is, "Why don't they just take out the parts that the other Justices don't like?" You've got to imagine they wanted to have a unanimous opinion here.
Dan: Certainly, I can imagine the chief would have.
Will: Right. I mean, this is one of the reasons I find it funny, is, you issue a 13-page mealy mouthed per curiam that's not very persuasive, when you're trying to prize something like unanimity and statesmanship over legal craft? So, it's funny they did that and still only got five people to join the whole thing.
Dan: Yeah, I mean, it's unclear-- Given how unclear exactly what they're doing in 2A even is, why were the five so intent on sticking with it? It's the thing I'm a little confused about, because I really did share the intuition going in that this is a case where the Chief Justice in particular would have wanted unanimity. And he would have been in the driver's seat in the way this case came out because Justice Barrett did not want to join 2A. She says, "I agree that states lack the power to enforce Section 3 against presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that."
So, what that means is there are only five votes for 2A, and that means any one Justice could have withheld dissent from it. It would not be part of the majority of opinion. So, the Chief could have done that. The Chief could have just said, especially if the Chief was their opinion writer, he could have said, "I'm going to take that out. And maybe four people agree with it, they can write separately," but didn't want to do that. Her opinion is very strange.
Will: Two hypotheses for what's going on with 2A. One is there might be members of the majority who are originalists who think that the state thing is embarrassing because the original meaning and history of Article 2 obviously allows states to decide not to even put Biden on the ballot, but who could stomach joining it.
Dan: Because states can assign their electors however they want.
Will: Yeah, exactly. As long as there's something kind of originalisty that they can think, "Oh, that's the part I'm joining." So, at least the Section 3 part has some legislative history of Section 3. And so, you can imagine thinking, "I can join the bad part as long as there's a good part." But if you take out the good part, it's just too embarrassing to join the bad part. Or to the extent that this opinion is trying to foreclose a lot of the other things we talked about, like Electoral Count Reform Act nonsense or a lawsuit brought after Trump was inaugurated, something [unintelligible 00:45:26] is trying to foreclose that, you could imagine somebody like Justice Gorsuch thinking, "We really need to say that stuff's not allowed. And if you won't put it in 2A on enforcement grounds, then I've got to write separately to say the president's not an officer of the United States or that January 6th is not an insurrection or that Trump didn't inhale." So, you could imagine that 2A is necessary to stop people from saying other stuff that's even more mischievous.
Dan: Yeah.
Will: Which is not a normal idea of necessary.
Dan: Yeah. But I don't know-- So here, it effectively, in a critical part of the opinion, it's 5-4. I've got to imagine was not what the Chief wanted coming in. Do you have more to say on that section?
Will: Let's do Barrett.
Dan: Okay. Barrett's opinion is quite strange, in my view. [crosstalk] So, it has this first paragraph I was just talking about where she just says, "Look, the fact that the states don't have power, that's sufficient. And I wouldn't decide more than that." And she says this, "The majority's choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The court has settled a politically charged issue in the volatile season of a presidential election, particularly in this circumstance. Writings on the court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity. All nine Justices agree on the outcome of the case. That is the message Americans should take home." This, I found kind of stunning.
Will: I think it's also hilarious. Why do you think it's stunning?
Dan: Well, I mean, it's not every day that the court explicitly engages with these questions about, "Gosh, how are people going to respond to our opinions?", and, "Gosh, other Justices, could you write your opinions in a way that doesn't make people so skeptical of our legitimacy?" This came up in the back and forth between the Chief and Justice Kagan in the student loans case last year. I don't know.
I didn't necessarily associate Justice Barrett yet with this view that the court should really be deciding how to write its opinions in ways that are explicitly intended to kind of change the political temperature. The court should not only be not influenced by politics, instead, the court should write its opinions in a way that are designed to lower the political temperature, lower the national temperature, whatever that means, and that we should explicitly tell Americans what message to take home. I don't know. I found that kind of stunning.
I also found it very strange to kind of chide the concurrence and the judgment, the liberal Justices for fairly criticizing the majority for going farther than it needs to. It just seems like if the point is to turn the temperature down, I mean, you could tell the majority, "Gosh, it's up to you to find unanimity." I mean, it's just kind of weird to just sort of say, "You all should get in line because otherwise people will be mad at us."
Will: Yeah, but you agree, right? The sentiment is admirable. It's good for the court maybe to be worrying about turning the national temperature down, not up. It's just that the tone policing is not the right way to go about it. Is that what you're saying?
Dan: I want to reserve judgment on exactly what I think about that. I think it's complicated. I mean, I do think that the court does not exist in a hermetically sealed room and exists in a political culture. And I do think it's good that the court feels some obligation to respond to democratic will to some degree. But I don't exactly know. I don't know if I think-- Yeah, I'm not sure.
Will: Because I was workshopping this with other people. So, I have one colleague who said, "Maybe the court's job is to turn the temperature up. Nobody else will do it. Maybe they should do it."
Dan: Heighten the contradictions.
Will: Another colleague who said, "The court should be countercyclical on temperature." So, when our national temperature is too low, maybe in 1954, we're too complacent and accepting of major Justices and all just watching, we're enjoying the post war boom, it's the court's job to turn the temperature up and force us to confront the biggest constitutional evil of our time. But when our temperature is too high and we're at each other's throats and losing our minds, the court's job is turn the temperature down. That's interesting. You can imagine just thinking it's the dissent's job to try to delegitimate the court, because they do think a lot of things are illegitimate.
So, I couldn't tell how to read this, because you can read part of the opinion as chiding the dissent. But you can also sort of read it-- the first two sentences seem like they're more explaining the majority. It sounds like Justice Barrett is saying, "I have a devastating response to the dissent that I'm choosing not to provide because I'm going to be the better person. The remaining Justices have a choice of how to respond, but we're not going to be strident." So, I read her sort of as implying, like, "We're not firing back, but don't read anything into that"?
Dan: I think it is very hard to read this as something other than she's criticizing the other three for responding in a strident way.
Will: Yeah, both. That's all. It's got some [crosstalk] implication, like, "We've got something good on the table, but we're not going to--"
Dan: Yeah, well, I mean, she's clearly saying, like, "Look, I disagree, but I'm not going to say anything about it for that reason."
Will: But then, of course, the whole concurrence is saying something about it.
[laughter]
Will: Right. It's one of those times you're like, "I couldn't possibly comment."
Dan: Yeah.
Will: That's a comment. But I like it. I like it because it is trying to address the one thing that nobody else will address.
Dan: I guess. But again, aim your criticism at the majority that could have presumably written an opinion that could have gotten everybody on board to lower the national temperature.
Will: Well, the first paragraph is about how she's not willing to join the whole court's opinion because it says too much.
Dan: Should Justices never dissent anymore so that they lower the national temperature? A lot of stuff in need of explanation here.
Will: No, it's just this time. It's just this case, we should not--
Dan: Not when she is really mad about it?
Will: Or when it's-- No, I take it it's more like this case does not permit the court to behave in its normal fashion because it's too explosive. And so, rather than write long opinions they tell us to think about things, they should write short opinions that are kind of inscrutable, that hopefully say enough, that Americans can take home the message that all nine Justices agree on the outcome of this case.
Dan: Yeah. Okay. Do you have anything to say about the substance of the dissent/not a dissent.
Will: I mean, I guess we sort of hit this already, but I don't know if the dissent characterizes the majority as foreclosing several things that I'm not sure whether it actually forecloses.
Dan: Yeah. The mere fact that the dissent read the majority opinion as foreclosing these things will now be cited in future cases saying, "Well, the dissent read it this way. So, they must have meant to do that."
Will: There's this great opinion by Chief Justice Roberts called Students for Fair Admissions v. Harvard, where he says, "Dissents are not usually the right place to go for instructions on how to read a majority opinion. They are just dissents." So, we do have a holding that dissents--
Dan: But of course, people are still going to do that.
Will: Yeah. Well, practically speaking, what do we think is going to happen? Practically speaking, we think this issue is over?
Dan: Yes.
Will: We think nothing's going to happen with the Electoral Count Act on January 6th.
Dan: I think that's the case.
Will: And nobody's going to file a lawsuit on January 21st when Trump is sworn in or January 20-- [crosstalk]
Dan: if they do, I think that it'll be dismissed quickly at a lower stage and will never get back to the court.
Will: Okay.
Dan: Which I assume is what they wanted. And maybe the Chief just thought, "It's better to make sure this never comes back to us than to have total unanimity. I don't want to ever see this again."
Will: Do you think the members of the per curiam have a view about whether Trump is an insurrectionist? Like, the actual question?
Dan: I mean, I'm confident that some of them think he is not. I'm not confident about whether any of them thinks he is.
Will: If all of them think he's not, they could just say that, right?
Dan: I mean, that would be a different rationale.
Will: Yeah, but it would be a straightforward rationale that would keep this from coming up again.
Dan: Yeah, but it would present the other things the Chief Justice worried about oral argument, which is, are other states going to just say, "Biden is an insurrectionist, so keep him off the ballot." So, I mean, it would potentially require them to kind of review those findings case by case.
Will: They could say nobody's an insurrectionist, that's what they think.
Dan: Well, they can't really say that.
Will: They could say, "Look, if they were an insurrection, we would have noticed. And there haven't been any."
Dan: Yeah.
Will: And then, they could say, "Every statement in this opinion is necessary to the judgment."
Dan: Yeah.
Will: Do you think any of them think he is an insurrectionist?
Dan: Do I think any of them does think he's an insurrectionist?
Will: Yeah.
Dan: I don't know. I'd be curious to see what the Chief thought after seven or eight beers, but I don't think he ever unwinds enough to tell us what he really thinks in that way. What do you think?
Will: You know, I'm too close to it.
Dan: You believe your arguments are so sufficiently compelling that they all believe he's an insurrectionist?
Will: No. Maybe most.
Dan: Most of the five in the majority?
Will: Maybe.
Dan: Three out of five? Four out of five?
Will: Those are the numbers that are most, yeah.
Dan: There's no way Justice Thomas believes that, right?
Will: Okay.
Dan: Do you think that's--?
Will: Fine. Justice Thomas and Justice Alito must not believe it.
Dan: Okay.
Will: No, maybe not, maybe you're right. I mean, again, if they believed he was an insurrectionist, their behavior is inexplicable. If they believe he's not an insurrectionist and they just don't want to say so, their behavior makes more sense. So, that must be it.
Dan: I mean, I don't think it's inexplicable to say, "We think he's an insurrectionist, but we know we don't think this provision applies for other reasons. And we also just don't want to-- We don't think it's for us to say he's an insurrectionist." That's not inexplicable.
Will: I mean, it's not logically inexplicable. You were the one-- I'm trying not to go all legal realist here, but back when we had those episodes about S.B. 8, and the court's willingness to find no remedy, I think we both agreed that made a lot more sense, if ultimately you didn't think Planned Parenthood v. Casey was right and didn't think [crosstalk] for this world. Like, finding no remedy for a right that you don't really believe in makes more sense.
Dan: Yeah.
Will: Whereas given the options available to them, if they really believed that they were aiding and abetting a violation of the constitution, surely they would have tried harder to stop it, right?
Dan: Maybe. I guess I don't share that strong intuition. That it could just be like, look, "In my considered view as a citizen, I think that probably he did commit insurrection. But I also think that courts are not really supposed to get involved in these things in the absence of more democratic authorization for doing so."
Will: Okay, maybe so.
Dan: We will presumably never know. One of the Justices will leave behind their papers that we'll see in 50 years where they-- [crosstalk]
[laughter]
Dan: [crosstalk] -he was totally [crosstalk] insurrectionist.
Will: A secret memo. Yeah, Justice Kagan had a reference in the social media oral arguments last week, the regulation of Twitter by Florida and Texas. She had this offhand reference to Twitter not wanting to have insurrectionists on the platform. The way she said it was like, " of course, that's what we'd call January 6th. Of course, what we'd call President Trump." Its offhandedness is part of what made me laugh. Like, okay, "In this case, we can just kind of talk about it that way, but when it's actually [unintelligible 00:56:33] to do anything about it, we got to get it all--"
Dan: I didn't see that one. I'll take a look at that. So, I'm going to confess that we might have used up more time than I intended. So, we might not actually get to those other cases I wanted to talk about.
Will: Highly traditional.
Dan: But in fairness, this is the content that people want. Our first episode about Section 3 is now one of our most downloaded episodes it may, when it's all said and done. Who knows, maybe will end up being our most downloaded, or certainly will be up there with our first episode post Dobbs, which is currently our leader.
Will: Classic.
Dan: So, we'll see.
Will: If you were on the court, Dan, would you have joined one of these opinions?
Dan: [chuckles] I wouldn't have joined Justice Barrett's opinion.
Will: [laughs]
Dan: Move that one out.
Will: Okay.
Dan: I don't know. I think maybe I would have tried harder to come up with some common ground. I do think that-- or at least to try to figure out exactly what the majority was trying to say. [Will Baude chuckles] It's strange. I mean, clearly this is written this way for a reason.
Will: I've got to hope it's written for a reason.
Dan: Yeah.
Will: Maybe they had ChatGPT write it.
Dan: The language would be more florid [Will laughs] if that's the case.
Will: A special ChatGPT trained only on earlier per curiams.
Dan: I wonder if I could do that. It'd be interesting.
Will: That would actually be amazing if you could do that. That'd better than your Muppets.
Dan: I'm going to work on that. That's next for me.
[Divided Argument theme]
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please keep your emails topod@dividedargument.com coming. I promise that at least one of us reads them and occasionally one of us responds to them. And at some point, we often take those into account and figure out what to cover, or at least what to attempt to cover. We have merchandise at store.dividedargument.com. We have voicemail at a number that I don't remember, but Dan will tell you.
Dan: That will be 314-649-3790. And if there's a long delay between this and our next episode, it's because Will has decided to hang his head in shame and resign from the legal profession due to a disappointment with the decision in this case.
Will: Oof. [chuckles]
Dan: Please don't, Will. We need you.
[Divided Argument theme]
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