After taking some listener questions, we analyze the lengthy shadow docket opinions in Labrador v. Poe, dealing with universal relief, emergency applications, and more. We then tackle two recent merits opinions: Devillier v. Texas (takings) and Muldrow v. St. Louis (Title VII).
After taking some listener questions, we analyze the lengthy shadow docket opinions in Labrador v. Poe, dealing with universal relief, emergency applications, and more. We then tackle two recent merits opinions: Devillier v. Texas (takings) and Muldrow v. St. Louis (Title VII).
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court Podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So, Will, as often happens, we recorded our episode, and then I think maybe about ten minutes after we hung up our call, the court did some stuff that was interesting and issued some emergency order, something on the emergency docket, which we'll talk about in a second. And we got some opinions shortly thereafter as well.
Will: Yeah, certainly that same day. A listener pointed out in the last episode that I apparently referred to our podcast episode as having been enacted [Dan laughs] instead of published.
Dan: Does this podcast have the force of law?
Will: I've decided to try to make that a bit. So, yeah, our podcast was enacted on April 16th. Before it even became law, the court had already made new law that messed us up.
Dan: And it's likely to happen today.
Will: I was hoping if we went with a Wednesday, that was less likely than if we waited till Friday. So, fingers crossed.
Dan: Yeah. Well, who knows how long it'll take to get the episode out though?
Will: It's part of the unpredictable nature.
Dan: Yeah.
Will: Okay.
Dan: So, let's see. Some odds and ends to catch up on. What have you got?
Will: Let's see. I think the cert petition on the 26th Amendment case we talked about last episode was denied.
Dan: Which is the prediction that I made, and I think you probably concurred in.
Will: Yes.
Dan: Right?
Will: Yeah. But sad.
Dan: Yeah. I mean, just interesting issue. Not a ton of lower court activity. Not a really well-entrenched split.
Will: Yeah.
Dan: They weren't interested. So, that would have been a fun one.
Will: They need cases, Dan.
Dan: I mean, they do or they don't. They don't if you don't like what they're doing, and they do if you like what they're doing.
Will: Well, you would think-- this is the puzzle. I was talking to an experienced Supreme Court practitioner about this the other day about why the court's not taking more cases, and the theory we kind of alighted on is maybe they don't like what they're doing. I mean-- [laughs]
Dan: Like, they think no matter how hard they try, they're just mucking it up?
Will: Yeah, something about it. The vibe from the court you just get is not that they're not just all having the time of their life. Except maybe Justice Gorsuch seems to always be having the time of his life but-
Dan: Does he? Sometimes, he seems like kind of a miserable guy.
Will: Yeah. No, I think he's-
Dan: He is living his best life.
Will: But everybody else, I don't know, it just seems like maybe they are just not having a good time, and so they just want less of it. I don't know.
Dan: I feel like Justice Alito is taking a certain amount of pleasure in his job these days. More so than he used to.
Will: A victory lap.
Dan: Yeah.
Will: Do you think Justice Alito will retire during the next Trump administration?
Dan: Conditional on there being one?
Will: Well, if there's never a next Trump administration, he's never going to retire. He'll just wait.
Dan: I don't know. He's not that old, and he might be really enjoying his role. It might be the thing that happens is that you have a Justice who gets more seniority. And in a world where the Chief is not always going kind of hard right, that gives Alito a lot of opportunities to be the guy in charge in some of the big, high-profile, hot button cases. And that's a lot to give up.
Will: Did I ever tell you this was my Justice Ginsburg theory, is that Justice Stevens was on the court for so long, that it wasn't until 2010 that Justice Ginsburg finally got to be the senior most liberal justice, either lead dissenter, etc. And so, just like, there were just a lot of things she didn't really get a chance to do until she was, at this point, when it was quite late in the day.
Dan: Yeah.
Will: And then, a couple years into that, people are telling you it's time to step down. You can see why you think, like, “Well, hold on, I was just getting started.”
Dan: Yeah. So, maybe the same thing will happen to Justice Alito.
Will: Okay, what else? What do you got?
Dan: We talked a while ago about technology. Talked about mechanical keyboards that has actually produced a fair bit of follow-up. People interested in learning more, people who are mechanical keyboard curious. I continue to endorse them for people who are professional writers, if you take your craft seriously. But another piece of technology that I've been meaning to mention but have not, is an app called Case Viewer. And this is an app created actually by Harvard law professor, Ben Eidelson. And it is this amazing app for Mac computers that you just press a button and type in a case name, and it'll give you a PDF of the case. It'll give you a little pop-up that shows you which Justices were in the majority. You can copy and paste from it with perfectly Bluebook citations. It's a really, really powerful thing for anybody who does law work that works with cases. Supreme Court cases, but not just Supreme Court cases. It can also find other kinds of cases.
And I have not been paid for this endorsement. I just think it's genuinely a cool app, and I want more people to use it. So, Professor Eidelson continues to support it and develop it, but you can't use it, Will, because you won't come to the dark side and use a Mac.
Will: Yeah, about six or eight years ago, I tried. I bought a Mac. I was like, “Now is the time, do it.” I bought it, I used it for 13 days. I still hated it. I returned it.
Dan: That's not enough time. You’ve got to stick with it for a little while.
Will: Well, after 13 days, they make you keep it. Don't give your money back.
[laughter]
Dan: Buy another one and try again for 13 more days. Just keep trying.
Will: The file structure, I just can't-- I'm so used to how to [crosstalk]. The folders are different and the arrange buttons work differently, and you can't-- I'm sure they're--
Dan: Small things.
Will: They're the core of what I use my computer for is to move things around and to type, but moving things around and managing my massive pile of files is like one of the main things I do.
Dan: All of that originalist research, all of those PDFs of speeches before Congress in 1797 and stuff like that? What kind of files are you moving around? That kind of stuff?
Will: Can you get those on Case Viewer? Congressional Globe viewer next? That would be cool.
Dan: I don't know, quite possibly.
Will: A lot of it's just keeping up with the literature, Dan. Like, every week there are 15 new articles I need to read.
Dan: You read 15 new articles a week?
Will: Well, I put them on my iPad in the to-read folder. [laughs]
Dan: Yeah. It's not the same thing.
Will: [laughs] Well, and then I try. I probably skim 15 articles a week.
Dan: That's a lot of skimming. I would find that-- I just find it so overwhelming. There's too much content. I just focus on the stuff that is core to what I'm doing in the given moment-[crosstalk]
Will: How do you know what's a core to what you're doing until you read it?
Dan: [laughs] You can get a lot from the abstract and the title posted up on SSRN.
Will: Fair.
Dan: You get a lot out-
Will: Fair. Anyway, sounds cool. People should use it, just not me.
Dan: We'll try it. We'll try again. What else? Got an email from another law professor, friend of the show, Bert Huang, who has a piece out in the Columbia Law Review called The Foreshadow Docket. It's actually a book review, but it's-- don't have time to go into the details now, but it's relevant to some stuff we're going to talk about, which is how should lower courts respond to the Supreme Court issuing emergency relief in ways that signal changes in law?
Will: Oh, yeah. I’ve got to read this.
Dan: Yeah. So, check it out. It's called The Foreshadow Docket, which is-- Thought you would like that title.
Will: Yeah. I have a theory of this.
Dan: Okay. What is the theory?
Will: I think lower court judges, there are a lot of cases where lower court judges should try to predict what the Supreme Court's going to do. It's not the normal formalist position.
Dan: Based on this specific context or just in general?
Will: Based on whatever. I think the lower court judges in first order, just try to get the case right, ignoring vertical precedent entirely. Except they should try not to get reversed. So, if their view of the first principled answer would get reversed, then they should just do it or it won’t get reversed. And that includes taking- [crosstalk]
Dan: Even if their view is inconsistent with what higher court has said, as long as it's not within the realm of reversal?
Will: They should get it right except they should not get reversed. But it's fine to disagree with Supreme Court opinions and stuff like that. I'm hoping I can sell this to the Fifth Circuit.
Dan: Is that more of your departmentalism? Like, everybody has their own independent obligation to interpret the Constitution?
Will: Yeah. So, I think a lot of departmentalists have everybody for themselves view or the every court for themselves. But I guess there's an exception for lower courts because the Constitution says they are inferior courts or something. So, it's my attempt to work out the middle position between courts should always just do what they want versus lower courts are potted plants.
Dan: The first position would just be like get reversed all the time?
Will: Right. There are some people who edge into that position, and that historically is not what courts did, and I think formally is not the right answer, but to explain why it's not the right answer--
Dan: So, it just seems like extremely inefficient, like, quite practically difficult.
Will: Yeah. But departmentalists and originalists often revel in being inefficient and difficult.
Dan: True.
Will: In principle.
Dan: Yeah. Okay. Anything else you've got kicking around in your hopper?
Will: I don't think so.
Dan: Got nothing?
Will: Nothing.
Dan: Okay. How about this one from our mailbag from Sasha Benzel, who says, “I have always been taught that trial courts are the finders of fact and appellate courts must defer to the factual findings of juries or trial judges. So, how is it that parties before the US Supreme Court sometimes offer up radically different recitations of the facts? I'm not talking about facts with a dramatic spin on them. I'm talking two entirely different realities. Like Kennedy v. Bremerton,” which is the case about the football coach who wanted to pray at midfield. I thought it was a good question. What do you think the answer is to that? This is a little troubling, right?
Like, sometimes in theory, the court's just getting cases on a cold paper record and yet they do seem to spend them. And not just spend them, but portray what happened in very, very different ways. We're actually going to see maybe a little bit about that here, or at least-- We'll see. We’ll see if it fits into that category, but just stay tuned for that.
Will: So, the example of Kennedy v. Bremerton made me mad, but I'm going to put that aside.
Dan: Why is that? Because you think it's not a fair example.
Will: Right. Because Justice Gorsuch's portrayal of the facts was obviously the portrayal required by the procedural posture of the case. And then, everybody went after him as if he was making stuff up just because the record happened not to align with reality. It's not his problem.
Dan: But you can agree that's a situation where there was disagreement without having to take a position on who is right or wrong.
Will: Some cases are there is disagreement because there's a correct view of the facts and then there are other people who twist the facts for their own narrative. But I think there are a lot of cases where this happens. And this funny thing that this comes up in appellate cases all the time in qualified immunity cases in particular, what are the facts, is a question the district court gets deference about. But questions like, is there a material dispute of fact is technically a legal question. So, you go up to the appellate court and the depositions are in the record, and then the appellate court has to read the depositions and decide whether a reasonable jury could infer from this deposition X, Y, or Z.
And so, questions about things like the boundaries of the record and what are legitimate inferences from the things that are in and out of the record are all technically legal questions, but they feel facty. They don't feel like things that the Supreme Court should be involving in or that appellate courts have any real expertise about.
And then, there are special areas of law where the court's like, “Uh, maybe this should not really be treated as a fact or not really be treated as law.” I think Justice Scalia maybe even once had a separate opinion about this in a probable cause case. About, is the finding of probable cause reviewed for clear error or de novo? And he tried to set out a general theory, a division of labor theory, that anything that doesn't have any implications beyond the case should be reviewed deferentially, because what's the point? And anything that has implications beyond the case should be reviewed de novo because that's our job. But I don't think that's the rule.
Dan: Hmm. That's interesting. Makes a certain amount of sense, but also doesn't necessarily clearly track the formal differences between trial and appellate courts.
Will: Indeed.
Dan: Here's another one from Eli Barrish, student at Stanford Law School. He says, “What do you guys make of the recent trend of cases featuring allegedly radical agreement over the QP? Have in mind, Sheetz in which the respondent arguably gave up their side of the QP in briefing, as well as the recent oral argument in Chiaverini.” And then also, he's talking about Devillier. He says, “It's a little different, but where are the courts holding? Did not actually answer the QP because one of the parties successfully rebutted a premise of the QP.” What is going on here?
What do you think about that? Do you think that there's been a surprising amount of convergence situations where the court actually gets the case, and then it turns out that both sides say, “Well, maybe we don't actually agree about that much”? Is the court just painting things that way to get out of deciding cases?
Will: Well, yeah. So, I do think, I mean, this is an interesting phenomenon. It's a really interesting question, and I do think there are some recent examples of this. It's not totally new. I think the court did a lot of this when Justice Scalia died, when they were trying to dispose of as many cases unanimously as possible. But there are examples of this from the time I clerked, which there are some from here. And I do think a feature, it's like radical forced agreement. So, in Sheetz, the court radically agrees on a sub part of the QP that doesn't really matter, or is all the things everybody cares about. Or, in Devillier which we'll talk about, court radically agrees on a proposition that's not the disputed proposition exactly.
So, I do think there's a certain amount of-- even today, with the court as fractured as it is, or maybe especially today, when the Justices can find a unanimous way to get out of the case and not fight about things, they like that. And then, there's some question about to what lengths are they willing to go to do that or not. I do wonder if that also gets a little stronger, and then the parties buy into this when the court doesn't take that many cases. So, you win in the court below and you figure, “Great, the court probably won't take it.” If the court does take it, probably won't happen, but if they do take it's probably because they want to reverse. Because at this point, they just don't take very many cases. So, if they agreed to take it. You must think your odds are pretty low. So, as soon as court grants cert, you start rapidly trying to come up with some new thing you can say that's not what the lower court opinion said because presumably they didn't like what lower court opinion said.
Dan: Well, should we march on and in a minute, we'll talk about one of those aforementioned examples when this might have happened. But before we get that, shadow docket activity.
Will: All right.
Dan: One big one, really. This is the thing that happened very shortly after we recorded. I just feel like that's very on brand for us. [laughs] Just immediately overtaken by current events.
Will: I mean, this case had been pending for weeks. They had to choose that. Okay, this is the case of Labrador v. Poe. Raul Labrador is apparently the attorney general of Idaho. I think Poe is a pseudonym, given that it's Pam Poe by and through her parents and next friends, Penny and Peter Poe. I think there's some mention of pseudonymity in the case.
Dan: Yeah. Yeah.
Will: Okay, this is a, finally, important shadow docket case about so-called universal relief granting an injunction against a state law. In this case, it's a state law against enforcement, state law against anybody, rather than just against the plaintiffs.
Dan: Right. And it comes up with federal laws too.
Will: It comes up with federal laws. It comes up under the APA. We've talked about this in the context of our debates about APA universal vacatur. This is in some sense the QP that they were trying to tee up in the Hamburger Mary’s case we followed for a while out of Florida.
Dan: Yeah. This made me think of that.
Will: Yeah. And then in the end, the Supreme Court said, “Well, this one's a First Amendment case and First Amendment has overbreadth. So, it's a little weird,” but it's the same move. So, an Idaho law here dealing with gender-affirming care, I think we call it.
Dan: Well, that's not what they call it in Idaho. [laughs]
Will: What do they call it in Idaho? The vulnerable child abuse--
Dan: Child abuse, I think. I mean, this is a law that is aimed at limiting, stopping, preventing the care that is described as gender-affirming care.
Will: I'm just trying to stay out of trouble, Dan. I'll call it whatever else.
Dan: Well, yeah, I mean, stay out of trouble. I'm just saying that in terms of describing what's going on, a law like this is weighing in on the side of that debate.
Will: Yes, okay. There's been litigation about these kinds of laws in several different states. Does it violate some due process or equal protection theory? The district court enters an injunction against enforcement of law anywhere in Idaho, anywhere [unintelligible 00:17:35].
Dan: Yeah. I mean, it wouldn't really need injunction for Alaska.
Will: Just wait. The Extraterritorial Child Protection Act will be next. Then, Idaho comes to the US Supreme Court to say, “Vacate the stay as to everybody but the plaintiff. We're willing to live with nonenforcements against the plaintiff. That's not an emergency. We'll fight that one through the Ninth Circuit on the merits-“
Dan: Which is what the state of Florida did in Hamburger Mary's.
Will: Exactly.
Dan: They made the same move.
Will: Exactly. And thus, giving the court a clean vehicle to rule on the question of whether or not relief should extend beyond the parties or not.
Dan: That was the intent.
Will: Yeah. All right. And so, then here's what the court did. The application for stay presented to Justice Kagan and by her referred to the court is granted. The district court's order is stayed except as to the provision to the plaintiffs of the treatment they sought below, pending the disposition of the appeal of the Ninth Circuit, etc., etc. So, Idaho wins a stay as to everything except the plaintiff's victory below. No explanation why. Justice Kagan would deny the application for stay. No comment. Then, there's a three-Justice concurrence by Gorsuch, joined by Thomas Alito. Another two-Justice concurrence by Kavanaugh, joined by Barrett. And then, a two-Justice dissent by Justice Jackson joined by Justice Sotomayor.
Dan: And so, we're missing-
Will: -missing a Justice.
Dan: We're missing the Chief.
Will: Right. Sam Bray wrote a post after this was decided, I think, saying we assume the bet is that the Chief did not-- was the majority rather than the dissent. But that's not clear. He could have voted to deny the application for a stay, but unlike Justice Kagan, noted that he would deny the application for a stay. But if he joined, we don't know why. So, we don't have a majority opinion from five of the six justices saying why they did this, but we have two maybe complimentary explanations from the Justices in the majority.
Dan: That add up to five.
Will: Yeah. So, Justice Gorsuch leans heavily into the no universal injunctions problem. He's written about this before, I think going as far back as maybe Trump v. Hawaii, maybe that was the first one. I'm not sure. Saying, as a matter of equity, as a matter of the power of the federal courts, this is not something we’re supposed to do, right?
Dan: Yep. And I don't think he breaks a ton of new ground here on that. Is that fair?
Will: I think that's right. I noticed, it seemed to me like he cited a little bit more of the arguments on the other side of this issue that he has before. I mean, he doesn't agree with them, but it seemed to me like there was at least a little bit more acknowledgement of just little things like, “Okay, yes, there was a stay once granted in the new deal, but it was overturned on appeal. What about this argument?” It seemed like it was a little bit improved.
Dan: Yeah. He doesn't cite the scholarship going the other way, does he?
Will: I guess that's right. Is it only the dissent that does?
Dan: I think, yeah. Justice Jackson cites [unintelligible 00:20:43] piece, but he does not--.
Will: [unintelligible [00:20:45] piece. So, maybe I'm being too generous. And I wasn't sure. Is this the first time Justice Alito has joined this argument?
Dan: That sounds right to me, but I hate claims like that. They're easily disproven.
Will: I'm going to say it's the first time Justice Alito's joined this argument. And when our listeners disprove this, I will be the one to confess error and you can stay pure.
Dan: As I always try to do.
Will: Okay, so three Justices say, and Justice Gorsuch even ends-- It's one of these funny things, the three Justice concurrence. But it ends with, “Lower courts would be wise to take heed.”
Dan: So, I mean, that's certainly a pretty strong signal. And just to make sure we understand his position. Is his position that these things should be very, very rare? Are there circumstances under which he would think that they are necessary, these kinds of broad injunctions?
Will: Well, I mean, there's a class action.
Dan: Yeah.
Will: I think everybody agrees that in the case of a class action, it could make sense. Right?
Dan: Yeah.
Will: What I don't think he talks about, or at least didn't seem to talk about clearly, was what if it's a situation where in order to really give complete relief to the plaintiff, you'd have to give broader relief? It's not practical somehow to disentangle them?
Dan: Yeah.
Will: Which is something that-
Dan: There's an allegation that's what's going on here. Right?
Will: Yeah. I think in part because of the anonymity. Right?
Dan: Yeah.
Will: So, on the one hand-
Dan: Justice Jackson says the reason that this broad injunction was given was because doing so was necessary to protect the particular plaintiffs before the court, including two minors proceeding under pseudonyms, against action by the state it deemed likely unconstitutional.
Will: Right.
Dan: And I have not dug into the underlying materials to be able to evaluate that.
Will: Right. But I don't know that because of the way Justice Gorsuch addresses it, I don't know that he's rejecting the view that you could ever grant broader relief because it was somehow indivisible.
Dan: Yeah. What would that fact pattern look like?
Will: Well, putting aside the dispute about what's going on here.
Will: Yeah. I was trying to think of something that-- Justice Gorsuch also doesn't believe in this part of the establishment clause, but if you imagine state of Idaho is going to announce Christianity to be its official religion and you imagine that was unconstitutional, it might be that you just can't not announce it as to some people and-- this is going to-
Or in cases where the injury is-- This is the thing, it can often be hard totally disentangle. So, I'm not sure what the other examples would look like.
Dan: Yeah. But he basically thinks that you can only issue an injunction to the extent necessary to help fix the plaintiff's problem, to address the plaintiff's injury.
Will: Yes.
Dan: You can't just do it because it's a good idea.
Will: Right. And you can't just do it because it's annoying to figure out how to do it in a more limited fashion.
Dan: Yeah.
Will: I think. And this also means it's connected with standing. The plaintiff has to have some injury that brings them to court in the first place. And so, the injunction should follow the injury, whatever that is. That does mean, of course, the more casual we are about standing, the more hard it will be to enforce this kind of principle, but we should not be too casual about standing.
Dan: Okay. More to say about his opinion. He responds a little bit to the dissent, but we can get to that in a minute.
Will: Yeah. Then, there's this Justice Kavanaugh opinion, which is, I think, a very interesting document because Justice Kavanaugh sort of lays out self-consciously, “I add this concurring opinion to explain how this court typically resolves emergency applications in cases like this, namely in cases where a party has sought to enjoin enforcement of a new state or federal law in the often yearslong period until final decision on the merits.” Which is, I think, a direct attempt to speak to the public and critics like us about how is the court handling this area of law and tries to actually lay out the principles that he thinks the court should be applying here. And it's written in a very plain-spoken terms with relatively few citations. Accessible, I think.
Dan: A little repetitive.
Will: It's part of being accessible.
Dan: Yeah. But otherwise, I find it pretty clear, well written. So, specific fact pattern is state or federal government passes new law, and then there's immediate litigation, and there's an injunction sought, and then we have to figure out what to do. And part of that calculus is likelihood of success on the merits, which is problematic because the court is having to decide that very quickly in a case where- because it's a new law, the issues haven't been fully aerated and is going to maybe have to make snap judgments. And I agree that's a problem.
Will: Right. And I think because it's a new law, it also means that thinking about questions like what is the status quo? Is a little more confusing. I think if you try to enjoin law, it's one of the books for a long time, it's easier to say, “Well, we err on the side of keeping things as they are until we're persuaded.” But what's new? Is Idaho’s law new, or is the federal district court stepping into stop Idaho’s law new?
So, part of what I thought was very interesting is starting on page four of the concurrence, Justice Kavanaugh says, “This scenario is not always optimal for orderly judicial decision making. So, various suggestions have been made to eliminate or reduce the need for this court to address likelihood of success on the merits. Some suggestions have force, others are questionable. None completely eliminates the need for this court to make these calls.” And then, he walks through it. So, should we defer to the lower courts? He says no, ultimately we've got to do it. Should we “preserve” the status quo? Sounds attractive in theory, but in practice, difficulties emerge from trying to define the status quo. I'd like to stand up for the status quo a little more, but I thought he makes a good point.
Dan: You think status quo has a clear answer because he says, “Look, is the status quo what the world was like the day before the law was enacted, or is it what the world was like the day after the law is enacted, before lower court has done anything about it?”
Will: Yeah. So, I mean, I think the court ought to put more of its energy into defining the status quo. I think it's right, you could come up with a non-arbitrary definition either way, but I think the court ought to pick one. I think if you believe--
Dan: What is it?
Will: Well, what I mean is I would propose that the status quo is the law that we have to justify as judicial intervention as a matter of the separation of powers. Even new laws are presumptively constitutional until proven otherwise. And so, the status quo is the world before the district court acts but after the law goes into effect.
I would make a possible exception in APA cases where appellate courts sit as courts of appeals over the district court. There's an old case, Sanders Brothers, when the court's wrestling with whether to stay an FCC order. And it's the same fact pattern as Nken, the immigration case where the Eleventh Circuit sits as the appellate court over the immigration agency. And there, that might be more complicated because in a way you've integrated the agency into the judicial decision. So, you have to decide what to do with the agency. But I would say in general, the courts should err on the side of staying out.
Dan: Yeah. Although a lot of times when we talk about preserve the status quo, what's going on is someone is coming into court, like at a trial court, and saying, “The other party is about to do something really disruptive. Please keep the world the way it is.”
Will: Yeah.
Dan: So, there is a sense in which this law could be disruptive. And the party says, “Please, they're about to do something crazy. Please stop.”
Will: Absolutely. So, that's why I think it's totally plausible to say no, I'm a Burkean, and the status quo is whatever has been going on the ground to the Poes of the world, that's the status quo and the legislature-- and that's what we should use. Justice Kavanaugh was right. That's a totally defensible view of the status quo.
I think, as a matter of constitutional theory, there are different stories for each one. So, depending on whether you're more of a judicial restraint person or more of a substantive Burkean, that should push you towards one or the other view of the status quo. My request would be that the court figure out whether they're Burkeans or judicial restraint people and then go with one rather than just say, it could be any and we don't want to adopt a theory.
Dan: Yeah.
Will: No, I get why they did it, but I'd like to see more work trying to develop principles for what's the status quo rather than just giving up on that factor.
Dan: Okay. There's an article topic.
Will: I was just thinking about that. Third, Justice Barrett has emphasized that the court can and should take care to focus on cert worthiness when considering emergency applications. And he cites her famous Does v. Mills concurrence, saying, “If we would not otherwise grant cert on this issue, then we shouldn't let ourselves be forced into it by an emergency application.”
Dan: Yeah. Because presumably, in that case, the court would refuse to hear a case dealing with the permanent injunction too. So, why get involved in interim relief?
Will: Right? “Of course, the cert worthiness factor is, by definition, only a partial cure for the issue here. Although emphasizing that factor reduces the number of emergency applications where we have to assess the merits. Some of the most significant and difficult emergency applications will readily clear the cert worthiness bar.” So, that seems right. But there is something a little funny to me here, which is the court has granted cert in fewer and fewer cases.
Dan: Yeah.
Will: [laughs] So, why are they so sure these things are cert worthy? There's also a circularity here, which several people pointed out, which is Justice Kavanaugh and Justice Barrett might well be the marginal votes to grant cert in many cases. So, asking them to assess cert worthiness is like-- what exactly is that asking them to decide?
Dan: Well, it's asking them to commit-- basically, to presumptively commit to actually making that vote on the line. Because in a lot of these cases, there will be an eventual cert petition.
Will: Right. But it also means if Justice Kavanaugh wanted to turn away more of these applications, he could just decide that these issues are not cert worthy. A lot of these are not. I mean, some of these are splits, but a lot of these are not splits. They are new state laws on contentious topics involving questions of constitutional law. But as we saw on the 26th Amendment case earlier this week, sometimes the court turns away new state laws on contentious issues involving constitutional law. They can just decide to do that.
Dan: Because they hate young people.
Will: Well, not vulnerable children being protected by Idaho.
Dan: Well, there's a disagreement about who's protecting the children and who isn't in this case.
Will: Unborn young people. They like those too.
Dan: Yes. Yeah. There's kind of a reverse Goldilocks. If you're really young or you're old, but if you're alive but not old, maybe don't get as much help.
Will: But I was just saying, one of the things I like about this is quite right, is he's walking through all the possibilities and it's like none of these is a magic bullet. A lot of these help. So, it's not like any one of them is the cure-all but we try to do these, which I actually think is true and can easily get lost. And then fourth, “Some suggest that the court should prohibit so-called nationwide and statewide injunctions. The theory is that eliminating nationwide and statewide injunctions by district courts will in turn reduce the number of emergency applications that make it to this court, or at least reduce the number of applications where the court needs to assess the merits.”
“As I see it, prohibiting nationwide or statewide injunctions may turn out to be the right rule as a matter of law, regardless of its impact on this court's emergency docket. See the Gorsuch concurrence. More to the point, for present purposes, I agree that such a rule could somewhat reduce the number of emergency applications that might make it to this court and require the court to assess the merits.”
Explains why, but then says, “Still, even if they're confined to the plaintiffs, there will still be emergency applications with nationally important effects that come to this court and clear the cert within this bar, requiring this court to assess the merits.” And especially given class actions, given the way and then he also points out it's important way stare decisis works. So, if the Ninth Circuit affirms Idaho's injunction on the merits, then even if the injunction is limited to the plaintiffs, there's now Ninth Circuit precedent saying that the statute's unconstitutional-
Dan: Which could potentially expose people to liability if they-
Will: I think there's now- the court claims it is uncertain whether or not circuit precedent can establish law for civil immunity, even though it has held the circuit precedent established law. [laughs] But yeah, at least potentially. And it walks through the universal injunctions issue from a much more practical perspective rather than a formalist perspective. What do you think of this part? What is the rule or the lesson you take forward as a lawyer here? We don't think Kavanaugh has adopted all of the Gorsuch position. Right?
Dan: Yeah. But he's considering it through the lens of a different question though. Isn't he just like, “Would this be helpful to solving this other problem?” Obviously, he does say, “Yeah, I think it would be a good idea.” But he seems to be saying it's a good idea more for practical reasons than for strict formalist reasons.
Will: Right. Although, I was surprised he starts with, “It may turn out to be right in the formalist manner,” which is the most positive thing I'd ever seen Justice Kavanaugh say about this argument. I feel like until now, I'd put him down as a defender of universal relief. And I think now that I understand this better, it's because in the APA cases [crosstalk].
Dan: Because hecame up on the DC Circuit.
Will: Part of the DC circuit mafia.
Dan: Yeah. And that could be totally different depending on how you understand the APA, and there's good arguments that the APA is different. It gives power to vacate a rule.
Will: Right. Well, maybe it does.
Dan: Yeah. Well, that's why I said good arguments. I didn't say-
Will: Yeah, okay.
Dan: Nothing's definitive.
Will: But he now at least seems to be expressing more openness than I'd seen before to the possibility that it's the right rule in the non-APA cases. Not committing to it. And here, he's looking at it for practical reasons but that's interesting. And in any case, here he's going along with a decision to lift the stay as to the [unintelligible [00:34:30] party. So, yeah, he's clearly somewhat open to it.
Dan: Yeah. But the ultimate bottom line is, even that is not going totally fix the other problem I'm concerned about, which is court having to make these snap judgments about new laws based on the merits.
Will: And then, he says two more things that I thought were, again, correct and useful, which were, we're experimenting procedurally. Sometimes, we get more briefs. Sometimes, he notes, as observers have noted, that we're trying to schedule oral arguments on these things to decide them on the rocket docket rather than the shadow docket. Is that the label? And then, he has this after the dinkus, he has a contextualizing paragraph.
“Although the volume of cases challenging new laws and coming to this court in the emergency docket is a relatively recent development, this court's emergency docket and the difficulties associated with it are not new.” Then, he has a sort of string cite of the Clean Power Plan stay issued right before Justice Scalia died, Purcell v. Gonzalez, Rubin v. United States, a Rehnquist shadow docket opinion denying a stay pending cert of an order enforcing subpoenas to Supreme Court to Secret Service agents about observations of the president, which I gather involved a part of the STAR investigation that he was working on as a lawyer at the time, the Bobby [unintelligible 00:35:51] Cambodia, Youngstown, and the Rosenberg execution, which is a nice--
I wish he would have added the shadow docket stuff in Griffin's case in section 3. Just throw a little 19th century in there. We had a whole great footnote on this in our article.
Dan: Do you think you read the whole article?
Will: We resisted pressure to take it out.
Dan: There's a lot of footnotes in that article.
Will: One reader told us, “You've got to take out this footnote about the shadow docket, because otherwise, Justice Alito will never vote for your Section 3 argument.”
Dan: I mean, that person was proven correct.
Will: If that were the reason.
Dan: Well, I mean, did Justice Alito vote for your view?
Will: No. The counterfactual world where we take that footnote. Yeah, but I think this is a strong a nice response to the criticism of the shadow docket.
Dan: Yeah.
Will: It's not-- You can nitpick with it. I think Steve Vladeck is already on Substack, nitpicking it a lot, but I think it's a nice attempt to engage. It's remarkably reasonable.
Dan: It shows receptivity to criticism.
Will: Yeah. But also-- It's receptive to criticism, but not too receptive.
Dan: But I mean, it's acknowledging that this situation poses difficulties. Let's try to find some solutions that'll make things better. We can't get rid of this emergency docket. It's not going to happen. This is always going to be something that's present, but it hears some criticism and is offering some things that might make it better.
Will: No, I agree. And I think this has always been one of my favorite things about Justice Kavanaugh, I remember thinking back when he was nominated, He's really good at keeping up with the literature. Like, what are the serious arguments for and against something in this area of law, and engaging with them in a real way. He's not trying to be a law professor. He's doing a different job, but he really gets it. I don't necessarily always agree with where he comes down, but I feel like this is a good example of that. It's like this is somebody who's really kept up with the debates and proposals about how the court's handling this and is thinking about it.
Dan: That's a little bit of a common-sense approach. I do these days like his flexibility, lack of rigidity compared to Justice Gorsuch, about whom there are things to like, but is very rigid.
Will: Yeah.
Dan: I really do think there's something to be said for having Justices at the middle of the court who kind of are just going to exercise a little bit of common sense.
Will: Yeah.
Dan: I think that can be healthy for the country.
Will: I think this combo is also really good. Justice Gorsuch, I think, is probably right about the universal relief issue. I think I've been mostly persuaded on that, although I'm not quite as hardcore about it as my sometimes co-author, Sam Bray. But I think Justice Kavanaugh's common sense is also quite sensible, and I think having the two of them in dialogue is very nice.
Dan: Yeah. Although there's more of a dialogue between Justice Jackson's dissent and Justice Gorsuch. We've already spent too long talking about this. So, maybe just briefly-
Will: This is the center of the episode, Dan. I don't know what you thought we were talking about.
Dan: I guess so. Yeah. The opinions we're going to talk about are pretty short, but I'd say a lot of-- crosstalk
Will: Both opinions combined [laughs]
Dan: No, it's not. The Jackson dissent?
Will: No, the opinions in Labrador.
Dan: Oh, this whole opinion. Yeah, yeah, yeah. That's correct. Yes. So, there's a lot going on here. She's dissenting from denial and is trying to provide a lot of reasons why, in her view, the court shouldn't be granting this kind of relief in this and other cases. So, let's talk about those quickly. So, one view that she advances is if the district court and the court of appeals both agree and possibly unanimously agree, I'm not sure whether that's a requirement, but if both levels of the lower federal courts agree to give relief or not to give certain kinds of relief, the court should be much less willing to overrule that decision.
Will: Mm-hmm.
Dan: Okay. What do you think about that? I actually am not persuaded by that at all.
Will: Me neither. I will say, I think this was an informal norm on the court for a while, just almost as a level of attention. Like, if you said to the Justice, we got a stay application, but the district court denied the stay, and then the Ninth Circuit denied the stay, I think there was more of a norm that you wouldn't even necessarily get somebody to pay attention.
Dan: Certainly, it's a signal. Maybe it's a signal as to how close a question it is or something, but I'm not sure-- I don't really understand why you'd build that into the standard.
Will: I don't think it makes sense to build into the standard. I also think the value of the signal just may be diluted as the judiciary gets more polarized. I think district courts are not what they used to be.
Dan: Okay. I hope some district judges are listening to that.
Will: Listeners accepted.
Dan: Yeah. Okay. Yeah, didn't find that persuasive. Second reason, she says the state in this case hadn't come close to carrying its burden because she says, “Look, the majority or the other justices say this is cert worthy because of the universal injunction issue.” But then, she tries to say, “Well, that's not really what happened here. The district court was actually just granting relief to the plaintiffs, but it had to do it in this way.” I don't know. Maybe that's right. Maybe that's not right. And then she says, third, and finally, “Idaho seeks emergency relief without contesting that its law should be preliminarily enjoined, as likely unconstitutional, at least as applied to the plaintiffs before the district court.” Should that be relevant?
Will: No. I take the point that in some way you think that puts the equities against Idaho because it’s unconstitutional, isn't that bad? But I assume they're allowed to make judgments of what to raise.
Dan: Yeah. I mean, presumably, they made a strategic decision, which I think is the same decision made by the state of Florida in the Hamburger Mary's case, which is, “Let's choose our spot here and challenge it only to this extent.”
Will: Right. It also seems a little intention-- I think this is saying, “Well, we should resist cases in which we aren't just being asked to judge the merits. Like in this case, it's troubling that we're being asked to only judge this other thing that's not the merits.” But I thought what we were all trying to do here was to walk away from turning every emergency application into an expedited merits decision.
Dan: Okay, what else? She seems very annoyed with Justice Gorsuch for reasons I don't really understand, for not emphasizing that the state of Idaho put the words bolded and capitalized on the cover of its application emergency.
Will: Yeah.
Dan: I frankly didn't understand this argument at all. I had no idea what this argument was getting at.
Will: I don't understand it either. I do think there's this argument that Steve Vladeck makes, the point he makes is correct that a bunch of these cases are opportunistically described as emergencies or not. It's kind of an emergency, but then the court might take a long time to decide it, or it's kind of an emergency, but then nobody seems to be in any rush, relates to the administrative stay thing we talked about last episode. So, I think there might be some argument in that neighborhood that Justice Jackson is remembering and maybe forgetting to fully articulate.
Dan: But is the fact that it's an emergency, does that make it better or worse that the court--?
Will: I think the point is-
Dan: How it makes it worse?
Will: I think Justice Jackson's point is that it's not an emergency, but the state is saying it is. And what we ought to do is figure out is it an emergency. And once we decide it's not an emergency, then we can deny it.
Dan: But then she also faults him for not emphasizing that it's emergency.
Will: Justice Gorsuch is not falling for this, but Justice Gorsuch should ask not- she complains that he's treating this as a run-of-the-mill motion for interim relief like any other motion when I think she wants him to treat it as an emergency and then ask, is it an emergency and then conclude it's not an emergency.
Dan: But then at that point, wouldn't you just treat it as an ordinary request for extraordinary relief?
Will: No. Then, you should lose, I think.
Dan: Okay. Because you said emergency and you were wrong.
Will: Yes.
Dan: Okay. Sorry. That one didn't land for me.
Will: Imean, it's not crazy to say, calling 911 when it's not really an emergency should be punished for is bad behavior. That's a similar-- [crosstalk]
Dan: We don't say then you don't get any medical care at all. [laughs] You should get the medical care you're entitled to, just you can't get the ambulance to come out.
Will: The boy who cried wolf. If you stamp emergency on your cert petitions, then at some point we'll just stop. We'll just let the wolves eat you. Isn't that the message of that?
Dan: I guess, but then if it's not really an emergency, then the thing I think you should do is treat the application as a run-of-the-mill motion for interim relief.
Will: I'm trying to steel man this here, Dan. Cut me a break.
Dan: Yeah. There's only so much you can do. Okay. Anything else to say about that?
Will: No. This is great.
Dan: Okay.All right, let's do some majority opinions. Let's just knock a short one out of the way. There might be more to talk about this, even though it's remarkably short. Do you call this one Devilli-ay or Devilli-er?
Will: I say Devilli-ay, but I'm not [crosstalk]
Dan: Consistent with your francophilia. So, this is a takings case, another Takings case. Takings/Fed courts, I would say. And so, basically, the question in this case is, what do you need in order to be able to go get a remedy for an alleged taking? Put differently, does the Fifth Amendment's Just Compensation Clause, the Takings Clause, does it provide an independent, self-executing cause of action where you can just go to a federal court or I guess a state court and say, the state took my property and hasn't paid me, give me money. Or, do you need some cause of action created by state or federal law in order to make that request?
Will: Yes.
Dan: Okay. The court is not going to answer that question, which is why they're able to do that in seven pages in an opinion by Justice Thomas, totally unanimous. No separate writings. And apparently, we don't need to answer that question, because here, there's clearly a Texas law, state procedure, at least the court tells us, is available. So, basically, this is a case where state of Texas did some stuff to prevent flooding on a road, ends up having the side effect of flooding plaintiff's property, causing them harm. They go to state court, end up in federal court bringing claims under both federal and state law. The federal court ends up saying that, “You have no cause of action under The Takings Clause. You would have to sue under 1983.” But you can't do that. States are not proper parties as defendants under 1983.
But then, it gets to the court, and the court is like, “Actually, just do the state law thing.”
Will: Well, yeah, I think this is way more complicated than it seems. So, did you say maybe you said this, but Devillier starts in state court.
Dan: Yeah.
Will: You said that. All right, so what do you understand the state law cause of action to be? Because in Nick v. Scott a couple years ago, the court said, “You don't have to exhaust your state law remedies before you can bring a federal takings claim. [crosstalk] you first have to bring your state law takings claim and then bring your federal law taking claim. We don't make you do that anymore for practical, informal reasons, you're allowed to just bring your federal taking claim.”
Dan: To the extent that you have a cause of action.
Will: Yes. And the court here is not denying that he has a cause of action. He may or may not have a cause of action for his federal taking claim.
Dan: Yeah. But in Nick, there clearly was a cause of action because it was 1983 suit being brought against a municipality.
Will: Right. As a land use guy, most of the land use zoning cases are against municipalities. So, those are easy to do in 1993. Here, it's the states. It's more complicated. I believe the court is saying not just that he should litigate his state law cause of action for state constitutional violations, but the court says in the last page, also, his state law cause of action will let him litigate his federal takings rights. So, the court says, “As Texas explained at oral argument, its state law inverse condemnation cause of action provides a vehicle for takings claims based on both the Texas Constitution and the Takings Clause.” So, he's now going to get to litigate his Fifth Amendment Takings Clause rights, not just his Texas constitution Takings Clause rights using his state law cause of action, which is something you can do.
You can bring like a- There's an old case, Merrill Dow Pharmaceuticals, where you bring like a state negligence claim, and then you use that as a way to litigate [unintelligible 00:48:36] the FDA, even though the FDA doesn't have its own cause of action because you say it's negligence per se. So, you have like a state cause of action, then a federal rule of decision. And that seems to be what they're saying.
Dan: That's interesting. So, in Nick was the argument that was rejected that you had to seek relief that wasn't premised on the Fifth Amendment Takings Clause?
Will: Yes, it's premised- [crosstalk]
Dan: [crosstalk] state law.
Will: Pre Nick, we said, we don't know if your Takings Clause rights have been violated until we know whether the state has provided compensation, including through its state constitutional process. So, you've got to run out of state constitutional process before you can bring the federal constitutional process. And here the court is instead saying essentially, he already has a cause of action for the Takings Clause. The cause of action is the state law –[crosstalk].
It is not obvious this is true, by the way. The oral argument is full of much confusion about this point, which is part of why this was described as a concession. And Texas says, “Well, he didn't plead it that way.” But it's also not clear you have to plead things that way because you don't-- This stitching together of state law causes of action and federal law rules of decision is just not something that's very common. And so, the whole thing is weird.
It's made weirder by the fact that it's not obvious there's federal jurisdiction over that kind of claim. So, the normal principle of federal jurisdiction is that there's federal jurisdiction based on the law that creates the cause of action. In Merrell Dow Pharmaceuticals, where plaintiffs try to bring a state law tort claim as the vehicle for litigating the FDA, the court says you can do that, but only in state court because it's a state tort claim. And so, state court claims belong in the state court, even if they turn on issues of federal law. And there's this whole test, the Grable test.
Dan: But it could be like pendent jurisdiction or something. Right?
Will: It could. None of this is discussed in the opinion. We don't know whether this cause of action passes the Grable test or just the radical agreement ran out before they got to fed jur. And then finally, as I understand it, the district court already has a state law claim in front of it, but the district court allowed both the state law claim and the federal law claim to go forward. It's the Fifth Circuit that overturned them, I think. So now, I don't even know quite what's supposed to happen to the federal law claim.
Dan: I think it sits around and waits.
Will: Is that a disposition?
Dan: Well, I mean, I think that--
Will: The District Court already decided it can go forwards. Is the district court not allowed to let it go forward?
Dan: The disposition line here is, “Judgment of the court of appeals is vacated, and the case is remanded for further proceedings consistent with that opinion.” And before that, they say, “On remand, Devillier and the other property owners should be permitted to pursue their claims under the Takings Clause through the cause of action available under Texas Law.”
I think it just means it goes back down to the trial court. The trial court is going to adjudicate those claims. Presuming it has jurisdiction, it’s going to adjudicate those claims under the state law. But in doing so, it's going to address the federal constitutional question.
Will: Well, the district court had already decided, I believe, that the federal claim could also go forward. And the US Supreme Court doesn't disagree with that. They say it's not necessary for them to decide whether they can go forward, but they don't disagree with that. So, can the district court let it go forward?
Dan: What would that look like? How would that be different? If we've just determined that they can-- The whole question is just like, do you have a vehicle to raise this claim, and they now have a vehicle to raise the claim. So, how is that going to be different? What number of the count is on the judgment page if they win?
Will: Well, it may just be housekeeping. And so, I got this question from a person who works for the courts who was just like, the court of district has two counts. Is the federal count now supposed to be denied as moot, stayed? Like, should I do something different? It's just a little confusing. It may not matter, although it might matter for some kind of area or procedural purposes. Like, I think if you're litigating a state law cause of action in federal court, that sometimes brings with it more state law procedural rules than a federal law cause of action in federal court, although not necessarily in a way anybody's anticipated. So, just the fed jur person in me-
Dan: Yeah, no, it's weird.
Will: [unintelligible [00:53:03] [laughs] nervous about this one.
Dan: Well, that's not the court's problem though.
Will: Apparently not. Why didn't they answer the QP, Dan? Why didn't they just say what the answer was?
Dan: Maybe they didn't agree?
Will: Okay.
Dan: Maybe it's hard. What is the answer?
Will: Well, I think the answer is there's no cause of action, but I assume the court think there was. And I thought they were- [crosstalk].
Dan: So, what would that look? In a world where the state says we have a state law cause of action for violations of the state constitution, but we do not provide one for violations of the federal constitution, and then there it's the state doing the condemnation, not a municipality. You're just screwed?
Will: If you want injunctive relief against the state, you can get ex parte relief. But if you don't, then yeah. That is how we treat everything else. The only question is whether the Taking Clause is different.
Dan: The Taking Clause is a little different that it specifically contemplates a money damages remedy, right?
Will: So, that's the argument. And the best argument on the other side, I think, is that for federal takings, we do treat there as being an implied cause of action. The Tucker Act waives the United States sovereign immunity for taking claims, but does not create a cause of action for taking claims. And then for 100 years, people have been allowed to litigate takings claims on the assumption that the Takings Clause supplies the cause of action and then, that's all they need. Then, the United States has some made up reason that's different because Tucker Act is special. But that's plausible too.
Dan: Yeah, it would just be weird to just say basically there is- despite the Fifth Amendment and despite the conclusion that it's incorporated, states have no obligation to pay just compensation and no one can make them do so.
Will: Yeah, but again, I mean, it's true the Fifth Amendment mentions just compensation, but that's what we do for most state violations of the Constitution, which is what we say, you just can't sue the state.
Dan: Yeah. Although many other state constitutional violations can be effectively remedied using injunctive relief.
Will: Not Fourth Amendment violations, usually. And maybe those are not usually perpetrated by the state. They're perpetrated by individual officers. All this depends on [unintelligible [00:55:00].
Dan: We do have the exclusionary rule which-
Will: Supposedly.
Dan: Yeah, separate question. Okay, so let's see what happens on remand. And then, last one, case that's going to hit close to home for me, literally. Muldrow v. City of St. Louis, Missouri. And this is a case about Title VII, which forbids various kinds of discrimination in terms and conditions of employment, among other things. And this is a gender discrimination case. What happened here in my beloved city, there's a woman, Sergeant Jatanya Claiborne Muldrow, who is an officer for the city police department. She was a plainclothes officer and she was assigned to the intelligence division and did a lot of high-level stuff and actually got these kind of special perks. I guess you get an FBI badge even though you're not in the FBI. You get a special car you can take home, all sorts of stuff like that.
After a number of years in that role, a new supervisor came in who seems like was just a sexist and just decided to move her to a totally different role that did not come with a demotion in pay or rank, but seems significantly less attractive, less prestige. You don't end up with a take-home car, you don't get the fancy badge, stuff like that.
And the question is, could that count as discrimination on the basis of sex under Title VII? That is even assuming that this was motivated by sex, which is not proven, I think, at this stage of the litigation, could it just automatically not qualify because it doesn't count as sufficiently harmful? And I guess-
Will: Formal pay doesn't change, or her formal job duties don't change.
Dan: Yeah. And I guess there've been a lot of disagreement or at least different language used in lower court cases, and at least ends up being a little bit of a dispute. But as the majority paints things, some of the lower courts had basically said you can only bring a claim like this if you can point to pretty significant harm. If your pay hasn't changed, your rank hasn't changed, you have to show some other substantial harm from the reassignment or whatever. And here the court says, “No, there's no such language in Title VII. You have to point to some harm, but not significant harm.”
Will: Okay. A battle of the adverbs or adjectives.
Dan: Yeah.
Will: I guess the idea would be you have to show a constructive demotion is what they're thinking. Like, you have to show some adverse employment-- Being fired because of your sex, that would be illegal. If they’re not fired, you have to show that you were constructively demoted or had your pay docked.
Dan: The position that's being rejected here?
Will: Yes.
Dan: Yeah. I don't know if they use that language, there was an argument like that in play, which is, “Oh, you look at the statute,” and it talks about termination, and so it has to be something in the same ballpark.
Will: Right. Fail or refuse to hire or discharge or otherwise discriminated against with respect to her compensation terms, conditions, or privileges of employment.
Dan: Yeah.
Will: Yeah.
Dan: And the majority says no, basically just, you violate Title VII if you discriminate on the basis of gender in any condition of employment that causes the person harm.
Will: Even mild harm.
Dan: Yeah. Has to be harm though.
Will: Why does there have to be harm?
Dan: I don't know. That doesn't get-- It's a very textualist opinion, as Justice Kagan often is, but significant harm isn't in the statute. But harm isn't in the statute either. Could it be a violation of Title VII to say, “I was discriminated against and I was given a promotion because of my sex or gender, my sex or race or gender” or whatever? Apparently, that's not correct.
Will: So, I take it that the reason is because of against. It's discriminated against, not discriminate in favor of. And so, favorable discrimination is not actionable. And so, what is against? Well, it's the opposite of in favor of. So, it has to be somehow of a minus sign, I take it.
Dan: Yeah. So, what did you think? Did you find this persuasive?
Will: Well, can we bring in the concurrences before I answer that? I love [unintelligible 00:59:23] Justice Thomas, Justice Alito, and Justice Kavanaugh each filed concurrence.
[laughter]
Dan: I saw that, I thought, “Oh, boy.”
Will: So, Justice Thomas says, “Okay, I agree, but I'm not sure the Eighth Circuit really imposed a significance test,” and then tries to question whether she'd really shown any harm.
Dan: So, in his view, you have to show more than a trifling harm, [crosstalk] not in the text.
Will: But more than trifling. And then some question about the losing the car is the FBI's decision, not her decision. So, that kind of-- Justice Alito- [crosstalk]
Dan: Some of these arguments were maybe forfeited. Quick thing about him. Did you notice his recommended disposition?
Will: Yes.
Dan: I thought you would like this.
Will: Thomas said, “I thus agree to vacate and remand to the extent of the Eighth Circuit analysis is inconsistent with the more than trifling harm requirement.” I spend a lot of time on this podcast talking about Justice Barrett's “vacate to the extent” that the Sixth Circuit’s decision was consistent with ours earlier. Justice Thomas is apparently doing it too, spreading. I think this means I don't really agree to vacate and remand, but if they were inconsistent, which I don't really think they were, I would. But I guess we're seeing more of the “to the extent, vacate,” not looking forward to that spreading.
Dan: Yeah. And at least here, there's no confusion. The decision actually is vacated.
Will: Right. Because it's Justice Thomas, it doesn't really matter what his vote disposition is. Justice Alito also isn't sure how much this really differs from what the courts below say. He concurs only in the judgment, [laughs] “I do not join the court's unhelpful opinion.”
Dan: Justice Thomas is only the judgment as well.
Will: Yes. Even his judgment, I guess, is only to the extent that it-
Dan: Yeah, yeah. Maybe he's partially dissenting in the judgment. [laughs]
Will: Concurring with the judgment to the extent that X. Yeah. All right. Justice Alito agrees with the judgments in this case. “I do not join the court's unhelpful opinion. For decades, dozens of lower court judges with the wealth of experience dealt with this. The court now says you have to show harm that need not be significant or substantial.” I have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges. Explains why he doesn't necessarily agree with the definition of harm. Harm inherently involves some degree of significance. “What would we think if a friend said I was harmed because the supermarket had run out of my favorite brand of peanut butter? Or, I was injured because I ran into three rather than the usual two red lights on the way home from work?” I felt like there's some sort of weird edge to those hypos.
Dan: Yeah.
Will: Is this a snowflake thing?
Dan: [laughs] Maybe. Yeah, I mean, I do think that those hypos don't map onto what was alleged here, which seemed like meaningful job-related harm.
Will: Right. I guess you wonder. Suppose the employer just regularly goes to the breakroom and throws away one employee's peanut butter, or they usually stock two brands of peanut butter and they learn that the women like one of the peanut butters and they get rid of the women's peanut butter. Not crazy to think you could sue about that. I mean, I don't know that I'd make a federal case out of it, but it doesn't seem like-- I don't know, they could just go--
Dan: I mean, if they were doing that on the basis of race or sex.
Will: Right. I take it even if they had both brands of peanut butter, but they said, “This is the black peanut butter and this is the white peanut butter. We require our employees to use the peanut butter appropriate for their race,” I assume the courts would intervene.
Dan: You would think so? Although the harm might just be the discrimination, which I think brings us to Justice Kavanaugh's opinion, which I think is pretty interesting.
Will: Yes, maybe Kavanaugh takes the leftmost position on this issue. He's to the left of the majority. And another Kavanaugh move, he begins with, “I agree with the straightforward opinion jointly authored by Judge Tatel and Judge Ginsburg for the en banc DC Circuit,” which is like one of Kavanaugh's signature moves to name check prestigious DC Circuit judges, especially a bipartisan group. “In my view, you just can't do it. As I see it, the issue here is not complicated. Suppose that an employer says to an employee in the Columbus office, we are transferring you to Cincinnati office because you're black, but your compensation will not change. Does that violate Title VII? Of course it does.” Now, he says at the end, “I expect that the court's approach and my approach will land in the same place and lead to the same result in 99 out of 100 cases, if not all 100.”
Right. Because presumably there's some reason you wanted to be in Columbus rather than Cincinnati, and so it's not going to be hard to show there's some problem with being moved to Cincinnati.
Dan: Yeah. Now, this seems pretty compelling. This would now create the problem we just talked about though, where the promotion on the basis of race or gender would be a violation. Basically, he just says differential treatment equals harm. Does he have anything in here that would stop that from being the case?
Will: Well, all he says is, “To be sure, the fact that a transfer may not involve a change in compensation can affect the amount of any damages,” but it transfers the-- So, maybe he would say, “Yeah, you're not supposed to engage in discriminatory promotions.” Now, maybe the person's not going to sue about that. And maybe they wouldn't even have- they can only get nominal damages. I don't know, do the hypos. Suppose somebody says-- goes to an employee and says, “We're going to start-- give you a promotion because you're black.” “No, I don't want it. I don't want any race-based privileges.” “Tough. You’ve got to take it. No choice.” You say, “No, you can't do that.” I think Justice Kavanaugh would allow you to go into court and get nominal damages saying don't do that.
Dan: Yeah, but maybe Kagan would too if the harm can be pretty small, then that person would be able to say, “Well, I didn't want the promotion because X, Y or Z, I would be harmed by it.”
Will: I mean, yeah, I suppose that goes in part to the Kavanaugh prediction. Suppose it's not even a promotion to a new title or anything. It's just we want to put a gold star on your door saying you're great. Like, I just don't like it because it gets icky. But presumably, you could say something, it's going to cause people to stigmatize me and think that.
Dan: But yeah, I don't know. Maybe the right answer is somewhere in between. Do you think the Kavanaugh approach is not focusing on the word “against,” or do you think it's still in there?
Will: I didn't see what he's doing with “against.”
Dan: Because that does seem to suggest that there's some other person in whose favor discrimination is happening.
Will: Right. You could interpret “against” to mean just anything they don't want, I think. Yeah.
Dan: Okay. Anything more to say about that?
Will: I'm struck by these cases. I feel like this is a pattern where the courts of appeals get a lot of Title VII cases. And so, I think we sometimes see them come up with ways to make the Title VII cases go away without having to get into the facts. [laughs]
Dan: [laughs] Yeah.
Will: I suppose one could say they don't want to let the cases go to summary judgment because they feel like there are too many cases and they don't trust juries or burden the litigation. So, I'm not surprised that the court's appeals have developed this doctrine. Not surprised the Supreme Court, which is a little more formalist with these things, is like, “No, that's not going to fly.” So, that's nice.
Dan: All right, well, I think we've covered what we intended to cover, more or less caught up until whatever happens five seconds after we finish recording that makes everything we say here irrelevant. But we're doing our best. So, it's summer for me. I have more time. Maybe you're going to have more time. Done teaching con law. Finished up teaching with your book.
Will: How was teaching con law? Forget the book, but how was teaching Conlaw?
Dan: It was great, actually. It was great. It was actually better than I thought it would be. I really, really enjoyed it. And I really hate to say this, but I did like your book a lot. [Will laughs] I really hate giving you credit, but sometimes credit is due. In this case, it was just a great book. It had a lot of mix of different kinds of materials. It was focused on the right cases, had helpful notes that didn't overwhelm the students with lots of different directions. So, it was great. I enjoyed it, I think, a lot more than teaching criminal law, which is the one whole class I taught before, which I did enjoy. But I felt like this class, I was able to achieve a little bit more unity and cohesion of the material and I learned a lot.
Will: You're going to do it again?
Dan: Yeah, probably not next year because they need me to teach both my crim pro classes. But I will circle back to it year after that, and I will use your book again. Only complaint about the book was that it was so long that the binding was collapsing for all the students by the end of the semester, which I assume is some publisher strategy to eliminate the used market that you're complicit in.
Will: Yeah, I mean, I don't know if it's a strategy or not. I do think that's a problem. Yeah, [crosstalk].
Dan: You can have the two-volume book. Some of the case book publishers do that. So, that's my pitch. I found one typo in the whole book.
Will: [crosstalk]
Dan: Yeah, no, it was pretty well done.
Will: Thanks.
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Dan: All right, well, thanks very much for listening. If you like the show, please rate and review on the Apple Podcasts app or wherever else you get your podcasts. And please also share the episode with anyone in the world who you think might find it interesting. Every week, we discover new people have learned about the show and some of them actually like it. And so, continuing to spread the word would be great because we thrive, at least I do, on positive reinforcement.
Visit our website, dividedargument.com. We put transcripts of the episodes up fairly soon after they're released. store.dividedargument.com for t-shirts and other merchandise. Send us an email, pod@dividedargument.com. We do try to respond to those, sometimes manage to hit a couple of those today. And leave us a voicemail, 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. We're going to be heading into hopefully peak Supreme Court season in the next month, month and a half. So, I'm hoping we can really ramp up our listenership, maybe even do some episodes in a timely, predictable fashion.
Dan: Anything is possible. And if there's a long delay between this and our next episode, it will be because the police department of the city of St. Louis has decided to hold me incommunicado because I endorsed a Supreme Court decision potentially expanding their liability under Title VII.
Will: Would that be some harm?
Dan: Not to our listeners, but to me.
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