We talk a bit more about Trump v. CASA, revisit the usage of "general," answer some voicemails, and then turn to Gutierrez v. Saenz, a procedural tangle about whether a death row inmate can sue a state prosecutor over access to DNA testing.
We talk a bit more about Trump v. CASA, revisit the usage of "general," answer some voicemails, and then turn to Gutierrez v. Saenz, a procedural tangle about whether a death row inmate can sue a state prosecutor over access to DNA testing.
[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, we're back to normal podcasting, just us after a couple episodes with other people. So, we probably will just do the normal thing for a little while as we try to pick up the pieces after I'd say a medium eventful term. What do you think? Is it kind of a midterm?
Will: I would count the end of the term. Yeah, mid is fine.
Dan: It's not a blockbuster.
Will: The biggest end of term case in terms of newsworthiness is CASA, which-- [crosstalk]
Dan: Kind of nerdy procedural case.
Will: Yeah, no, it's one of the greatest court opinions of my lifetime. But it's not normally the New York Times.
Dan: Greatest, because you just agree with it so hard?
Will: And just so well done. It's Justice Barrett doing it in the right way. It's a vindication of the dispute resolution model of federal courts over the law declaration of model of federal courts, which is one of the great dichotomies in theories of the federal courts.
Dan: Are you going to teach it in con law or just Fed courts?
Will: That's a good question. I haven't taught Fed courts in a while, actually. We have too many talented Fed courts people. And my con law assignment this coming year is not structural con law. I'm swapping over to Fourteenth Amendment Con Law for the first time.
Dan: Oh, you've never taught that one?
Will: No. I'm excited.
Dan: That'll be interesting.
Will: I have to figure out how much structure to work in there. Like how much do I teach Cooper v. Aaron, Do I teach supremacy, etc.?
Dan: I mean, you need a little bit just so they understand how rights are enforced, right?
Will: Yeah, there's a little bit either way. But the question is, at least in our casebook, as you know, there are some things like the Lincoln-Douglas debates in response to Dred Scott, Cooper v. Aaron, that are in for us are laid out in the structure section. And I normally teach those things when I teach Article III. Not everybody teaches Article III that way. So, I might move those materials over and also teach them in the Fourteenth Amendment, same way. I pretty much teach Erie in just about every class I teach. I teach it in conflicts. I teach it in Fed courts. [laughs] It comes with-- [crosstalk]
Dan: Teach it in con law?
Will: My casebook coauthor, Sam Bray does sometimes teach Erie in con law. I don't think I have, but it's totally defensible. I teach it incidentally in elements.
Dan: Elements is the intro to legal methodology class you all do?
Will: Yes. And I teach the finding law idea and the different conceptions of the finding law. I don't actually teach Erie itself, but I teach a range of different common law cases that have different views about the role of courts in finding or making law.
Dan: That sounds pretty interesting.
Will: I think so.
Dan: Okay, some follow up. One interesting CASA related tidbit. Frequent friend of the show Kannon Shanmugam noted the interesting fact that Grupo Mexicano was Justice Barrett's term clerking for Justice Scalia.
Will: Interesting.
Dan: I mean, what is that 25% chance that she was the clerk on that case?
Will: I guess so. Assuming they're allocated randomly or evenly, there is this norm--
Dan: Well, I mean, based on the information that we have available to us, it's a 25% chance, right?
Will: Well, yeah, but if you thought in general, the most talented clerks got more and better cases, and we thought that Amy Coney, as she was then, was likely to have been one of the more talented clerks, although I don't know anything about her co clerks. Kevin Hough, Ara Lovitt and Stephen Miller, then you could play with the base rate a little bit. Does Scalia have those rule? I vaguely remember that Scalia clerks were allowed to pick one case from their term that they could publicly say that they worked on?
Dan: Yeah, he would sign the slip opinion and people put it on their walls.
Will: Yeah. So, do we know what Barrett's case is? Does she have Grupo Mexicano on her wall?
Dan: Yeah, that's a good question. I wonder if anyone who has visited her chambers might be able to tell us or if anyone who clerked for Justice Scalia at that same term has that opinion on their wall. But it's one of those things, kind of like the fact that Justice Jackson clerked the Apprendi term, right? Which I think I was the person to point out.
Will: I think you were. Yeah. No, it's certainly it is a nice fact.
Dan: Do you feel like you would be particularly attached to doctrines that you grappled with as a clerk, or do you think you're too independent a thinker?
Will: Wow, that's loaded. I think that most clerks, and I'm no exception, there are certain things that loomed large for law clerks that term whether your views about them were positive or negative, their salience might be increased. So, I clerked the term that Winter v. NRDC, which discussed the preliminary junction standard in the context of deafening whales with sonar, and Nken, which discussed the stay standard. I clerked the term that both those cases were decided. And it might be that my interest in a lot of procedural shadow docket questions was heightened by the fact that I've been thinking about these cases for a long time. I don't know.
Dan: That's interesting. You probably think both of those cases came out right.
Will: Everything the Chief did came out right that term.
Dan: Do you think that's true? But there's got to be something in there that you disagree with.
Will: It's been a while since I've thought of this. My memory is– [crosstalk]
Dan: You're not a toady. You're an independent thinker.
Will: No, maybe it was my good influence. My memory is there was one exception.
Dan: Okay.
Will: My memory is there is one opinion he joined that he shouldn't have joined.
Dan: Okay, but nothing he drafted.
Will: That's my memory. But it's been a while.
Dan: That's a pretty good success rate. Though your judgment may be distorted by your loyalty to the man who hired you.
Will: Why don't you just think this is not a surprise that two people who think similarly about the law would?
Dan: Well, that's the question. Do you think similarly about the law? You're more of an originalist, right?
Will: I am an originalist. He is not an originalist. And I am an originalist.
Dan: I mean, I think he said he was, right.
Will: No, he's never said he was.
Dan: So, there are five that Alito said he is right. I know that there are at least five that have said they are and six if you count Jackson.
Will: I believe there are seven.
Dan: Okay, so who am I missing?
Will: I believe the only two Justices have not said that the originalists are the Chief and Sotomayor.
Dan: Okay, Kagan said we're all textualists now, right? Did she say similar thing about.
Will: She said that we're all originalists in the sense that we interpret. If the founders wrote it as a strict standard, we applied it as a strict standard. And if they wrote it as an open-ended rule, we applied it as an open-ended rule. And in that sense were all originalists. She later claimed to walk it back, I think at a talk at Notre Dame although the things she said were exactly the same thing she said before. [laughs] So, just as people maybe overreported the initial comments, they overreported walking back.
Dan: Just doesn't like the label.
Will: Right. But I think the Justices are all originalists, even if two of them do not currently use the label.
Dan: Because you think originalism is our law.
Will: Yes, and I think they all follow the law.
Dan: I mean, some more than others. In your view, right?
Will: Yes.
Dan: Okay. One other piece of follow up. I raised the question last time, which I thought was a good question, and I think has turned out to be a good question does the term “military general” have the same etymology? Sort of starting out as an adjective, just meaning, like covering a whole bunch of stuff before it became its own noun.
Will: Yeah.
Dan: According to at least eight or nine people who wrote in, that is correct, that it started out, there were phrases like “Captain General,” and then slowly it just became general. And so, does that undermine your whole anger at the use of general for Solicitor General? I mean, obviously that phrase is not as far along in that evolutionary process, but if it's the same thing, seems fair to me, seems in bounds.
Will: This has been keeping me up at night. [Dan laughs] So, first I want to say, “Boy, there are a lot of general people out there.” I think that this story is true, although there do seem to be some subtle differences I have not totally nailed down. And I have been reading a lot of sources about this, many of which were located for me by ChatGPT, Deep research and Claude’s research, but seem to be actual sources.
Dan: You did whole Deep research on this?
Will: Multiple.
Dan: Okay. You were hoping that you could still claim that you were right. So, you've determined that this is correct?
Will: I'm trying to have a scout mindset rather than a soldier mindset about this. So, the general story seems to be a little complicated because some people say it went from Captain General, but other people say it was general officer and that those sort of migrate. And the reason that matters is that if it was general officer, then there's a theory that actually the etymologies are quite different because general officer puts the adjective in the normal place. We put it in English, whereas Attorney General, Solicitor General, Surgeon General are all putting the adjective after. And this may signify some difference in the evolution from Latin versus French. And this may be relevant in some way. I'm not sure. There's a lot of rabbit holes down here.
Dan: I'm not sure why that would be relevant.
Will: Well, if we called the Attorney General the General Attorney, and we called the Solicitor General the General Solicitor, maybe it would be even more intuitive that we wouldn't just start calling them generals, even though that is what happened, apparently, the General Officer.
Dan: Yeah. I just feel like that cuts in the wrong direction for your thesis.
Will: Well, I guess my point is if we do the thing we did to generals, if we start calling the Attorney General and the Solicitor General just “generals,” we have a new rank of general which is just the rank of high-ranking government lawyers they're all called general. Then I think we should start calling them “general.” I'm not sure we should start the process in advance where we still use “general” as an adjective. We still, so far as I know, think the plural of attorney general is attorneys general.
Dan: Well, hold on. We've got, in the military right now, we have an office of Brigadier General. I think as a term of address, you would just say General Baude did this thing.
Will: Okay. Is that right?
Dan: I believe that to be correct. I'm not a military guy, I mean, I think you would refer to the person that you would not say that's a general. You would say that's a Brigadier General.
Will: If two Brigadier General and a Brigadier General meet, are they Brigadiers General or are they Brigadier Generals?
Dan: I don't know.
Will: Because I think it's-- do you still agree that if an attorney-- [crosstalk]
Dan: Yeah. It's almost certainly the generals, but again, that's that word. It's just the phrase is further along this evolutionary path.
Will: Well, I think we're doing it if we first call-- [crosstalk]
Dan: You just think we're doing it too soon?
Will: And in the wrong order. You can start calling the general when two Attorney Generals are called Attorney Generals rather than Attorneys General, [Dan laughs] maybe.
Dan: This seems like a given what we've learned. This seems like a strange hill to die on, because I thought the claim had always been this is this absurd thing where there's just this coincidence that there are these two words and people are saying general when it means something totally different in the context of the military. But in all these cases it seems like it starts out as an adjective and then ends up as a noun.
Will: Yeah. I've tried to never say it's absurd or they're totally different or a lot of those things, it's just wrong. So, you are exposing one of the great inconsistencies in my thought, which is that in principle I believe that descriptivism about language is correct, language is usage based, and over time our usage has changed. And that's just the way it works. And so, there's no point worrying with the fact that General Washington maybe should have been called Colonel Washington or Officer Washington or whatever. That's just the way it is. And yet at heart it drives me crazy when these things that used to have one precise meaning change for no good reason. And I would reconcile them by saying the change has not yet happened, but it probably will complete its passage in my lifetime.
Dan: Isn't this basically the same tension with your jurisprudential views? Which is, on the one hand, you want to be able to say, “Look, this is just actually the underlying practice, but you don't want to accept the ways in which law has been practiced that you think are wrong.”
Will: I mean, I try to resolve the tension more mindfully in the areas I work in professionally, but when I teach conflict of laws, I teach the traditional approach. I teach the fall of the traditional approach. I am angry about the fall of the traditional approach. It was bad. It involved the heedless wrecking of an incredibly beautiful system by a bunch of legal realist law professors who should have known better and a bunch of judges who didn't know better. And yet it has happened. And so, as a general law conflict of laws person, I do not think the traditional approach is still obviously the law.
Dan: I don't think there's a tension there because I think you can say the law is the new thing, but we shouldn't have changed it. That seems legitimate. Like you could say, “The language now works this way, but it sounded better the other way.” We've lost the ability to express certain kinds of meaning. I don't think there's a tension in those two views.
Will: Well, Good. There may be an emotional tension. I think that the time the tension comes up is when you're in the middle of a change. So, take one of the nine states that still uses the traditional approach to conflict of laws. It's sort of right to still say, “Well, they still shouldn't, because it's still the law there.” Law of Georgia is still what it's always been. But if then the court comes in and decides a case in keeping with the new trend, the way people are starting to do this to the attorney general, then how to react to that becomes complicated. Because on the one hand, you might want to stop the change which you think is both currently against the law and normatively bad. But at some point, the change will happen enough that you have to acknowledge that it has changed the law.
And because there's no hard and fast standard for identifying when that change has happened, I still don't think it's the case that Attorney General is a General. But maybe that is motivated by my belief that would be a dumb change.
Dan: I mean, we can put this to rest. But it seems unobjectionable to me. It seems like an easy way to refer to the person in an extra respectful manner, which I think seems unobjectionable to me. Otherwise, you wouldn't say Attorney General Prelogar.
Will: I think you should.
Dan: Attorney General Sauer as a term of address.
Will: I think you absolutely should.
Dan: It's just too cumbersome in the middle of an oral argument.
Will: Then you can refer them as an attorney.
Dan: Just say mister?
Will: Mister is fine.
Dan: Okay. Attorney, just attorney is the term of address? That doesn't seem right.
Will: My memory is that Thomas Jefferson insisted on being called Mr. Jefferson after he was President and nobody thought that was disrespectful. So, this is bound up for me. And there's a similar debate about the use of honorifics that you no longer have. So, for a long time, the etiquette rule was ex-senators, ex-judges, etc., are still entitled to be called senator or judge, but ex-presidents are not entitled to be called president. And this is rationalized as if it's a title that there are lots of, then you can keep it when you leave. But if the title is only one of, then you have to give it over to the other person. It gets a little confusing for governor. Is there only one governor out of the 50 governors?
Dan: Isn't that not true as a matter of practice?
Will: Well, again, so this is one of these things that used to be the rule. I think the practice no longer adheres to the rule very much, and I feel equally strongly about it.
Dan: Okay. Three quick voicemails, one of which is language related. So, let's play those.
Andrew Baker: Hey, Dan and Will, this is Professor Andrew Baker, longtime listener. Just wanted to let you know that in the course of describing rhetorical mistakes that make you frustrated, you then said coming down the pipe and the correct term is coming down the pike. So, if you could fix that for the next time, that'd be great. Thanks.
Dan: So, I enjoyed this one. Andrew is a longtime friend of the show, texts me frequently about stuff on the show. I think he was excited to have this opportunity to write in because I don't think he has much he could ever correct us about cases. He's an empirical corporate law scholar. Not clear to me he's ever read a legal case, but I haven't gone back and listened. He asked me “Ex ante, which phrase is correct?” And I said “Pike.” And he said, “Oh, you said the other thing.” And I said, “Well, I don't remember.” And it's quite possible that I was too excited talking about whatever we were talking about and misspoke.
Will: I will say I noticed it at the time. And at least one commenter on the blog has also pointed this out. Three against one.
Dan: Okay. Yeah. I mean, I'm willing to believe that I said it.
Will: The only way you could fight back would be to listen to the show and since you never listen to the show.
Dan: I don't like to do that.
Will: Yeah, so you just got to take that one, Dan.
Dan: Right. Voicemail two.
Joseph: Hey, Dan and Will, it's Joseph. I was the one who put up the manifold market if the show was going to release an episode by Monday. And since it pretty accurately predicted that there was going to be an episode, I'm wondering if you guys are going to have to drop unpredictable from the tagline. Either way, love the show. Keep up the good work. Thanks.
Dan: Okay, this one is following up from something maybe three episodes ago. At this point, don't remember how many. Do we have to drop unpredictable? I don't think so. Because the fact that we can sometimes be predicted is itself unpredictable. You couldn't have predicted that. If you can predict us every time, we're predictable. But if you can't predict when we're going to be predictable, we remain unpredictable.
Will: Right. I think this is called a mixed strategy, if you were always completely unpredictable, then people would know they could put up a manifold market predicting that our show would come up and then we would not come up because we would need to refute the manifold market. And if we always comply with the manifold market, then people would know that we're always coming up. But if we employ some unknown mixed strategy, then we're still unpredictable.
Dan: Okay, one more voicemail.
Clayton Buckner: Hi, yeah, my name is Clayton Buckner. I just want to say I love the pod. I had two questions for you guys. First, how closely do you think the tradition prong of text, history and tradition relates to liquidation and should we consider those things together? And then my second question is, what did you guys think of Andor Season 2? And where do you think Star Wars goes from here? Thanks. Look forward to hearing your answers.
Dan: Okay, those are both, I'd say questions for you really, rather than questions for the pod because you're Mr. Liquidation.
Will: Yeah. So, I think when I wrote the article on liquidation, I suggested or marketed it as possibly a useful way to do tradition for everybody who wants to do tradition-based analysis, but not everybody who does tradition agrees. Marc O. DeGirolami is a big tradition guy and we have an open disagreement that he thinks it's better for tradition to look at purely practice based, like just what are people doing? Whereas liquidation, in Madison's terms, cared about what people thought about what they were doing and why they thought they were doing it. Its Madison's version of liquidation is actions that were deliberate and taken with thought about what made them constitutional. And at least some views of tradition, I think, are more like, “Well, this is what people are doing. We should infer from that some sort of constitutional thought, even if a fact people weren't thinking in constitutional terms. So that's an intramural fight about tradition, people. But obviously I've put my horse or at least my footnotes behind liquidation.
Dan: All right. And then the Star Wars question also for you.
Will: You know, I have been so busy. I am only partway through Andor Season 2.
Dan: What's your verdict so far?
Will: It's great. Andor is one of the best Star Wars properties certainly since the destruction of the extended universe.
Dan: [laughs] What do you think about the new upcoming trilogy?
Will: There's another trilogy?
Dan: There's one apparently in the works. It's going to be done by the director, Simon Kinberg, who is involved in some of the X-Men movies.
Will: My view is all new Star Wars movies are not Star Wars movies until proven otherwise.
Dan: Rebuttable presumption?
Will: Rebuttal presumption against canonicity for any new Star Wars material.
Dan: Yeah, this guy directed Dark Phoenix. X-Men Dark Phoenix, which I actually watched recently with my kids. We’re going through a lot of classic superhero movies. I mean, it's not really classic, but that one is one of the most hated Marvel-- It's not a Marvel Cinematic Universe movie, but Marvel movies in a long time. That was okay.
Will: I saw Days of Future Past, which I think was pretty bad.
Dan: I like that one, okay. But he produced that one. I don't think he directed that one.
Will: All right.
Dan: But I like that one. Okay. I think have we exhausted our allotment of chit chat? I don't know whether the general’s thing seems like sort of law related.
Will: I feel strongly about the general’s thing.
Dan: Okay. Friend of the show Colin is maybe going to be unhappy with us, but Colin Stretch, so sorry.
Will: My son would like me to mention that he proposed that we should just get rid of the boring law talk in the podcast and have a podcast that is entirely random chitchat. And that would be a better way of responding to the balance issue.
Dan: We could have two channels.
Will: [laughs] The chit chat channel and the law channel?
Dan: Yeah, I'm trying to think of you'd need divided argument, ex parte or something like that. Some other phrase that would be the nonlaw conversations.
Will: Okay. Well, I think we are going to get pretty deep into the weeds today.
Dan: I think so I'm a little worried about that.
Will: Same. I'm a little nervous about it.
Dan: Because the case we're going to talk about I found extremely confusing. Before we do that, any other Supreme Court news I guess we got our last orders list for a while, the kind of mop up orders.
Will: I think there's one more on Thursday, usually. It's like a mop up-mop up somehow.
Dan: Yeah. Got some grants.
Will: I think today is the day they have to conference about any orders that are being held for last Friday's.
Dan: Like the GVRs.
Will: Right. So, there may be some CASA follow out. You could specifically mind some CASA related follow out or something at the mop up orders launch.
Dan: Did you just say follow out?
Will: I think I said fallout.
Dan: You definitely said follow out. So, Andrew Baker will send in a voicemail about that.
Will: Follow up, fallout, whatever.And there's a summary about Bivens on the orders list and some dissents from denial.
Dan: Interestingly, no dissents on that one.
Will: No noted dissent.
Dan: Yeah.
Will: A cert grant for the campaign finance for a bunch of the campaign finance rules that all the election law people used to like and I don't like anymore. So, some stuff we'll talk about later and a really weird GVR that I've been trying to get at the bottom of but other than that-- [crosstalk]
Dan: Let's do that next time.
Will: Okay. Oklahoma v. United States. Look it up.
Dan: Okay. All right. So, I think we're going to talk about Gutierrez v. Saenz. There's a lot of big cases that came down last week. I think we're going to work our way through a lot of them, right?
Will: I hope so.
Dan: Yeah. Over the coming days/weeks. We're not going to be in a hurry. We got to find some summer content. So, we're going to stretch it out a little bit. But this one I'd say is in our wheelhouse-ish complicated procedural stuff, crim-pro adjacent, extremely confusing.
Will: [laughs] Extremely confusing is one of our-- So, this case is a follow on to a case that was decided I think is just last term?
Dan: Two terms ago.
Will: Two terms ago. Reed v. Goertz, which we tried to talk about and got too confused and gave up. And then the Fifth Circuit had another Reed v. Goertz case where they apparently had the same reaction. And now the whole thing has gone back to the U.S. Supreme Court to figure out whether the Fifth Circuit correctly applied its confusing prior precedent in Reed v. Goertz.
Dan: And really just whether it correctly applied one paragraph from that decision.
Will: Yes.
Dan: Right. I went back and looked at Reed and there is one paragraph on page three that is in the Kavanaugh classic, first comma with first in italics. First, Texas argues that Reed lacks standing. We disagree. And then there's an explanation, and then that's kind of it. But let's try to set it up before we get to that. So, there's sequence of cases. So, is it third Judicial District or what's the name of the Osborne case? What's the full name?
Will: District Attorney's Office for the Third Judicial District v. Osborne. Yeah.
Dan: Okay.
Will: It should really be Alaska v. Osborne, basically, because that was in Alaska. It was the Alaska District Attorney's office. But it didn't end up being Alaska.
Dan: No, it wasn't a criminal case.
Will: True, but Alaska's the real party interest, isn't it?
Dan: That's true, but that's true of a lot of cases that we don't caption that way.
Will: I know. It's just annoying.
Dan: Okay, so that one actually did the rare little bit of extra research before this episode, went back and read that one, which I looked at, I guess at this point, a decade and a half ago, to try to remember what was going on there. I would say that one is medium confusing. It's going to get worse. So, in that case, and I think that was your term, so you may know this case a little bit better than I do, but in that case, there was a prisoner who was suing to try to get access to evidence that could be used for DNA testing. And the court said, “No, you don't have this basically blanket right to get that just because you want it.” But this is a 5-4 decision over then five conservatives, four liberals, in the course of doing so, the court said something about due process that I frankly do not understand and I'm going to need you to help us with. Are you going to do that?
Will: What is it that you don’t understand?
Dan: Well, the whole thing. I mean, the court says there is a due process interest at stake in these cases. I guess I don't fully understand what that is.
Will: All right, so there are two kinds of due process, substantive due process, which is made up, and procedural due process, which is half not made up. Substantive due process, the court says there's no substantive due process right to DNA testing because there are in general, no substantive due process rights for new things. That's the right that gave us Roe and so on. And I'm being a little flip here because the privileges immunities clause probably does support unenumerated rights, and a lot of substant due process rights could have been those.
Dan: But in your view, not for this?
Will: Let's just say, in the view of the doctrine I'm trying to channel here, I have not thought carefully about whether under the general law approach to the Fourteenth Amendment, there would be a privilege or immunity to DNA testing. That's an interesting.
Dan: Would you do that before the next episode?
Will: I'll think about it.
Dan: Okay, you'll think about whether you'll think about it?
Will: Yes, I'll think about whether I think about it.
Dan: Why don't you just devote the mental energy you're going to use to think about whether you're going to think about it and just use that energy to think about the underlying thing.
Will: Because that's more energy.
Dan: [laughs] Okay.
Will: That depends on what our next episode is.
Dan: But if you conclude from that process that you should think about it, then that'll be the worst outcome.
Will: Unless I do. Anyway. But procedural due process, which you may know from many different areas of criminal law, procedural law, criminal law and civil law, sometimes says just because the state has said, “These are the procedures that are available doesn't necessarily mean these are the procedures that are available. You have to have some property or liberty at stake. And then if you do, sometimes the courts will weigh whether or not the procedures that you have for vindicating that property or liberty are constitutionally adequate.” And so, what Osborne says is, “There is some liberty at stake. After all, this person is in prison, they want to get out of prison.” And the state has already created some substantive rights to get out of prison. Like the states have various kinds of innocence or other postconviction relief. And so, if the state has said substantively, you have a right to get out of prison, if you can prove substantively X, Y or Z, then there's at least some federal scrutiny about whether the procedures for proving X, Y and Z are unfair.
Dan: But as measured by what, right? They don't have to do this at all. So, what if a state said you can get out of prison if you can determine conclusively beyond all possible shadow of any doubt ever, that you were innocent, and basically nobody can meet that standard. Is that unconstitutional under this theory? Isn't the interest that the state has recognized just defined both by the substance and the procedure?
Will: So, what you are describing is what was once called the bitter with the sweet doctrine, which is no longer the law which is like anytime the state creates an entitlement, they also create the procedures that are there to vindicate that entitlement. That is a plausible view. It might be Justice Thomas’s view to skip ahead for a minute, but it has not been the way that due process doctrine works for a long time. To take maybe the obvious example, if the state gives you a license or a job, it doesn't necessarily follow that just because the state gave you the license or the job, it can have completely arbitrary procedures for revoking them.
Dan: Yeah, I mean, I get that, but this seems a little different because the state hasn't given you the liberty yet. The state has said, there is this way to get liberty if you can do X, Y and Z. And so why isn't-- I guess in that situation where they actually haven't given you the entitlement and the entitlement can only be understood with regard to these procedures, whereas in the case of denial of welfare benefits, they're giving you the money and then they're saying now we're going to take it away using these procedures. Does that not work?
Will: I mean, this is just a confusing thing about this area of law is figuring out what things go in the bucket of things the state can just decide whether you have an entitlement and what things go in the second bucket of having given you the entitlement, the state has to give you some process. You're not wrong. And that's a confusing place for it. But I guess the way to think about it is the right to get the DNA evidence is just everybody agrees. It's just a step on the way to something else that you also have under state law, which is some kind of actual innocence right.
So, I think if a state, I mean, at least under Osborne, I think if a state said there is no actual innocence right at all, or there is an actual innocence right only if you can prove with 100% certainty that you're innocent, then that would be the substantive right. And it might be very hard to ever get DNA testing because it would almost never be able to get you to the 100% mark. But the states don't do that. They have some other standard. And then the point is they have to have some not fundamentally unfair process for getting DNA evidence that allows you to meet whatever the burden of proof is. This is then extra confusing because at least at the time Osborne was decided, this was a pretty new area of law. So, it wasn't totally clear what the state standards and tests were.
And so, one of the other things that is discussed in these cases is that in some cases you might have to go to the state first and try to use their procedures to even just figure out what the rules are. And that's part of what got us into Reed v. Goertz, the more recent case. So, it's not an exhaustion requirement, because there's no exhaustion requirement in section 1983. But sometimes you might have to go to the state, kind of try to figure out what's happening there and then once that happens, it gets extra confusing.
Dan: Yeah, and then there's this whole other layer of confusion about whether these suits are basically attempts to use section 1983 to appeal state court judgments, which would be barred by the Rooker-Feldman doctrine, which says you can only go to the Supreme Court in that fashion you can't go to federal trial court, and try to effectively appeal a state judicial decision. The court has said, “No, you're challenging the underlying law. You're not trying to appeal all judicial decisions.” So that's confusing.
Will: Right.
Dan: Okay, so that's one layer of confusion, or one and a half I've got. Okay, so there is some kind of liberty. I mean, does Osborne clearly say there is such an interest? Because it's interesting, because Osborne is a 5-4. It has some Justices in the majority who you would think would be very skeptical about there being such an interest, including Justice Thomas, for reasons we'll talk about momentarily.
Will: Yes. So, Osborne says third paragraph of Part 4A, “Osborne does, however, have a liberty interest in demonstrating his innocence with new evidence under state law. This state created right can in some circumstances beget yet other rights to procedures essential to the realization of the parent's right”, and cites various postconviction relief cases to the realization of the parent right, not parents right.
Dan: This is not a parent's rights case.
Will: Right. The rights are themselves the parents. They're begetting other rights. So, the court says that Osborne has a liberty interest in demonstrating his innocence under state law, and that liberty interest in demonstrating innocence then gives you a right to some procedures to try to demonstrate your innocence. I mean, obviously imagine a state says, “Anybody who can prove their innocence can get out of jail. Also, nobody shall be allowed to say or do anything to prove their innocence.” There would be something fundamentally unfair about that combination of rules.
Dan: Yeah, I guess so. I'm still struggling with that a little bit. Okay, so that is the law, I guess.
Will: Well, yes.
Dan: Okay. But exactly what the parameters of that. What counts as fundamentally unfair, I don't think we have answer to.
Will: Correct.
Dan: Okay, so then it's going to get more confusing. We have a follow-on case after that, Skinner v. Switzer, which you would hope would maybe resolve the question of what counts as fundamentally unfair. But that doesn't, that just deals with another antecedent question, subject matter jurisdiction.
Will: Well, it's like proper remedy. So, there's a whole separate line of cases about when do things belong in Habeas versus when do they Belong in Section 1983? And the court has created this implied preclusion type doctrine where some things that could on their face be section 1983 claims have to be brought as habeas claims if they could be brought as habeas claims. So, you can't use Section 1983's liberal procedural requirements and end run around habeas's strict procedural requirements. I think Heck v. Humphrey is-- Some people put this at Pfizer v. Rodriguez in 1973, and some people put it at Heck v. Humphrey in 1984. But either way, there's an origin story of that doctrine that was the other possible ground in Osborne that the court did not resolve.
And then Alito and Kennedy wrote separately to say they would have just preferred to say that this should be a habeas case rather than a section 1993 case. But Skinner v. Switzer says, “No, it's not a habeas case because DNA testing is not a thing you can get in habeas.”
Dan: Yeah. And resolves that Rooker-Feldman question.
Will: Yes.
Dan: That I mentioned a second ago.
Will: Yes. So that's more sort of procedural brush clearing. We have a procedural due process claim and we now know where you're supposed to bring it.
Dan: So, it's procedures for raising a procedural claim.
Will: Yes.
Dan: So, I think at that point we're two steps removed from the underlying thing we care about, which is whether you can actually get the evidence.
Will: Well, the underlying thing we care about is whether an innocent person is in jail or being killed. So, we're like several steps removed from that question. But that is the thing we really care about.
Dan: Okay. And then we have Reed. Reed also is not about the thing we care about. Reed was ostensibly the main part of it was about statute of limitations. Like when can you bring one of these 1983 suits? When is it time barred and so forth. And the court there says, basically the statute of limitations starts running at the end of your state court appeal, whereas the Fifth Circuit had said starts running at the end of the state trial court's denial of DNA testing would have created some problems because then you would need to both bring your 1983 suit and do your state court appeal simultaneously. The court said no. In the course of doing so, we have this Part 2 of the opinion, which is three paragraphs long, unless you count the first sentence that says “Texas raises three threshold arguments.” And one of those three paragraphs, the one that starts first, is about standing. Is it too long to read?
Will: No.
Dan: Okay. Yeah. I mean, after hearing Sarah last episode read like a two-page thing, I've gotten more confidence in reading longer excerpts. Okay. “First, Texas argues that Reed lacks standing. We disagree. Reed sufficiently alleged an injury, in fact, denial of access to the requested evidence. The state prosecutor, who is the named defendant, denied access to the evidence and thereby caused Reed's injury. And if a federal court concludes that Texas's postconviction DNA testing procedures violate due process, that court order would eliminate the state prosecutor's justification for denying DNA testing. It is substantially likely that the state prosecutor would abide by such a court order. In other words, in terms of our standing precedent, the courts would have ordered a change in illegal status.
And the practical consequence of that change would amount to a significant increase in the likelihood that the state prosecutor would grant access to the requested evidence and that Reed therefore would obtain relief that directly redresses the injury suffered.”
Okay. And there, just to make sure everybody understands, the prisoner was saying, “I want access to this evidence,” and was challenging some of the procedures for doing so. But it wasn't guaranteed, that as soon as, if he won the substance of that challenge, he was going to get the evidence, right?
Will: Right. And I guess the whole reason so who is the cause of Reed's constitutional injury in Reed is a little confusing. So, he's suing the prosecutor. So, obviously he needs in some sense for the cause to be the prosecutor, and he needs relief against the prosecutor. But then the premise of the statute of limitations argument is that the injury is not really complete until the courts have ruled, because we didn't really know if I could get access to it until the courts had it. And so, there was this tension, as the dissent argued in Reed, between theory of standing Reed necessarily needed to be able to sue the prosecutor and theory of the role of the courts he needed to be able to say the statute of limitations didn't run, didn't start running when the prosecutor said, “No, I'm not giving you the evidence.” That's, I think, one of the sort of and then the tension is heightened by these doctrines like Rooker-Feldman about to what extent can you go to a federal court and get a reconsideration what the state court did? And Osborne, which says, “There's no exhaustion requirement for this, even though we're making go to state court some of the time.”
Dan: Okay.
Will: Okay. But this is good enough to get Justice Kavanaugh through the standing problem. And Reed, as he says, “Look, ultimately it makes sense to sue the prosecutor because the prosecutor denied you the DNA testing. And if we rule or if the circuit rule on remand that you should get it, he'll give it to you, or it's substantially likely he'll give it to you.”
Dan: But it wasn't guaranteed he was going to give it, right?
Will: Right.
Dan: It was not 100% certain by any means. It wasn't going to be an or der directing him to give the evidence. It was going to be a declaration that this procedure is unconstitutional.
Will: Right. I think in stylized fact, the prosecutor was doing something like saying, “I'm not giving it to you because I don't have to under Texas law,” whatever it's called. And now if a declaratory judgment that maybe you do have to under Texas law, then maybe the prosecutor will give it to you, because after all, he said, “The reason I'm not giving it to you is because I don't have to.”
Dan: Yeah. Although it could have been a declaratory judgment that says the way in which this procedure is being interpreted violates due process, which may not be the same thing as saying you have to give the evidence. I don't know.
Will: Right, sure.
Dan: Okay. But so not a lot of analysis in that one. Okay. So, there just to situate everyone that case had this one paragraph that's about standing. When can you go sue the prosecutor to get a declaration that these state procedures are unconstitutional?
Will: Yes.
Dan: But it's not going to tell us when they are unconstitutional. It's not going to tell us when you actually get the evidence.
Will: Yes.
Dan: Okay, so that's all the setup. Okay. We haven't even given you this case yet.
Will: [laughs] And that whole opinion of Reed v. Goertz was six pages long.
Dan: Yeah.
Will: The majority.
Dan: Yeah.
Dan: It prompted, much longer dissents from Justice Thomas and Justice Alito.
Will: Okay. Now enter Gutierrez v. Saenz.
[chuckles]
Dan: Okay. All right. A lot of setup, hopefully, we haven't lost anybody along the way.
Will: If we ever had them.
Dan: [laughs] Yeah. I mean, if you didn't want this, you probably are not subscribing to the show. Or at least maybe you're a new person who discovered us through the crossover because we were in the Advisory Opinions feed. We were hoping that might expand our audience a little bit. And now we are very promptly turning that audience off by doing it. I'd say this one is above average confusing for us.
Will: But if you like this, keep listening.
Dan: Okay.
Will: Okay, so what happens now?
Dan: Okay, so we have another suit like this also coming out of Texas by a prisoner who has been convicted of capital murder. And he is convicted for participation and apparent direct commission of a terrible murder. And he is now seeking DNA evidence that I think he's hoping will establish at a minimum that he was not inside the home where the actual killing took place, but would still be consistent with the possibility that he was participating, but not inside.
Will: And that might make him legally ineligible for the death penalty, even if it doesn't establish his innocence as a matter of complicity or what have you.
Dan: Yeah.
Will: Yeah. Okay.
Dan: Well, what happens before he sues in federal court? He tries to get the evidence, right?
Will: Right, sure. And they say, “No, in Texas you can only get DNA evidence if it will try to prove your innocence, and you're not trying to prove you shouldn't be executed. So, we're not interested in giving it to you.”
Dan: Yeah. Okay, so then after that, he's going to go to federal court.
Will: Yeah.
Dan: I mean, would one possible avenue for review of that be a petition for cert from state court judgments there? Wouldn't it make sense to raise a federal constitutional claim in those state proceedings and then seek cert on those?
Will: I think so. I think there's no reason you couldn't seek cert at that stage. I think that's right.
Dan: Okay. But that's not what happened in 1983. 1983 does not have an exhaustion requirement.
Will: Right.
Dan: Right. So, there's no requirement that you go exhaust other remedies before suing. Why is that?
Will: Because Supreme Court said in Patsy v. Board of Regents that it doesn't.
Dan: But like--
Will: The court's I-- [crosstalk]
Dan: Do you agree with that?
Will: Well, yes. The court's idea is the whole point of Section of 1983 it was passed during the Reconstruction Era. People who didn't trust the states and the state courts might well be bad. And part of the point was to empower the federal courts which were getting beefed up at the time to just hear constitutional rights claims on their own. I think that's basically right. This intersects with things like Monroe v. Pape and questions about when people are state actors and how to know what the state has really done. Because the Constitution, the Fourteenth Amendment, applies to states, but then states are actually full of lots of different people who sometimes do different things.
So, you can tell a much more complicated story under which there should be an exhaustion requirement, and that'll help you determine who's really acting under color of state law and who isn't. And I think this theory might have belonged to Felix Frankfurter, and I spent a little bit of time with it in my article on qualified immunity because I think it would be one of the more sophisticated ways to get a revisionist version of some of our Section 1983 jurisprudence. But ultimately, it's all wrong because Monroe v. Pape is actually correct on formalist grounds. As a coauthor and I are probably going to try to write soon.
Dan: As you claim frequently, I mean, not about that in particular, but-ah…
Will: I claim to writing articles a lot when I am in fact podcasting. This is one of my [laughs] vices.
Dan: I mean, you're just over committing yourself. You're claiming to write more articles than is possible.
Will: I am often writing more articles than I can finish and then I do not finish them.
Dan: That's a shame. The world is deprived of your insights. Okay, so that's a side note. Okay. So, now what happens? We're now in federal court.
Will: We're now in federal court under Section 1983, bringing a suit against the district attorney who has custody of the evidence. So, this looks like Reed v. Goertz.
Dan: Yeah. And then what happens?
Will: He wins the district court. The district court agrees and grants declaratory relief, saying it violates fundamental fairness for Texas to give you a liberty interest in challenging your death sentence, but not letting you get evidence that you could use to support that challenge for fundamental and fair reasons. So that's an Osborne claim, right?
Dan: I think so. Like I said, I don't totally understand what an Osborne claim is. It sounds like you do.
Dan: Yeah, and so, in more detail in terms of what he's saying, this is on Page 5 of the majority. He has three due process arguments. One, Texas courts interpret the state law to impose a virtually insurmountable barrier to obtaining DNA testing, deeming a prisoner ineligible as long as the record contains any evidence, no matter how minor he committed the crime. Second, he asserts that it was unfair for the Texas court not to consider new evidence he had proffered since his trial. Fair procedure would require considering the effect exculpatory DNA evidence would have had. And also heard new evidence casting doubt on his confession, which he now says was coerced to the police. And third, he argues that the state law violates due process by forbidding DNA testing when its sole purpose is to establish that a defendant is ineligible for the death penalty.
Will: Right.
Dan: Okay, so a lot of claims.
Will: Yeah. And that's the third one that he wins on in district court, right?
Dan: Yeah.
Will: The third one is basically, They treat innocence, the death penalty, as if it weren't real innocence, which you can see why, even though I have a liberty interest in being moved from death row to prison. And the other two are kind of ways in which they interpret the statute so stringently that it's unfair.
Dan: Yeah. Okay, so wins in the district court, and Fifth Circuit vacates that win and says that he lacks standing because the claimed injury was not redressable because the declaratory judgment that the district court issued would be unlikely to cause the prosecutor to reverse course and allow testing.
Will: Yeah.
Dan: And so, Fifth Circuit said this is different from Reed because here the Texas Court of Criminal Appeals had said that even if the state law applied to claims affecting death eligibility rather than innocence, generally, the facts in the trial record would still not entitle Gutierrez to DNA testing.
Will: And that's because of the other two hoops that he challenged that the district court didn't reach.
Dan: Yeah.
Will: Or reached but-- actually, did the district court reach them and just say those were okay?
Dan: I don't remember.
Will: Okay. So you thought they did three unconstitutional things to you. The district court thought there was only one unconstitutional thing. You therefore lacked standing to have that one unconstitutional thing struck down because of the other two things, which may or may not be unconstitutional that they did to you.
Dan: Yeah, and I think the district court ruled against some of those because he didn't cross appeal on those, right.
Will: Right.
Dan: In the state court system.
Will: Okay, this is confusing, but with us so far?
Dan: Let's see. And I read this twice, so.
Will: Okay. Just two things to say now before we then get to the reversal. On the one hand, you can feel for the Fifth Circuit. This is what the dissent is going to say. It's like, “Reed has this paragraph. This is what the reason that they're standing is, because it's pretty likely that a ruling is going to matter in this case. And so, if that's the test, we went and looked, and we [chuckles] thought it doesn't seem like this ruling is going to matter. And therefore, maybe this fails Reed.”
Dan: Yeah.
Will: On the other hand, it seems very odd to say that if you bring three claims and only win one, you therefore lack standing to bring any of them. I'm unclear. I guess I mean, is this really just like the old Summers v. Tice thing? It's like if you bring three claims, you are unlikely to have standing to vindicate any of them because of the other two. [chuckles]
Dan: Yeah. That can't be right.
Will: Right. And that's like where the two people. One of us shot you. And you can't prove that it was either of us because it could have been the other one. A long time ago, we said that doesn't work. And I take it doesn't work here either, at least at the threshold stage. Okay. So does it work here?
Dan: Here, the court is going to tell us, and it's going to tell us this in a 5 to 4 decision majority opinion by Justice Sotomayor in which the Chief justice and Justices Kagan, Kavanaugh and Jackson join in full, and in which Justice Barrett joins as to everything but one Part II–B–2. And she has a short concurrence in part. And then we have a dissent from Justice Thomas and a dissent by Justice Alito in which Thomas and Gorsuch join.
Will: Is a five Justice majority accompanied by a Justice Barrett’s opinion concurring in part and concurring the judgment. Is that just like the modal opinion of the Roberts Court today? I feel like that was Trump v. United States. [laughs] There's just so many, I mean, this is a different lineup, but I feel like--
Dan: I mean, well, sometimes she's in dissent, right?
Will: Yeah.
Dan: Like the January 6th case, right?
Will: Yeah. No, it's true. But I just feel like there are so many cases where, she's like, “Okay, I can get there, but I can get there more carefully than the majority did.”
Dan: Yeah.
Will: It almost makes you wonder if one added reason to have assigned her the nationwide injunction opinions in Trump v. CASA was just to ensure there would be no Barrett’s opinion concurring in part, incurring in the judgment. Like, it's a complicated, nitpicky area of law, and if anybody else tried to do it, they'd probably get it wrong. So, let Justice Barrett do it because she can get it right.
Dan: Yeah. And otherwise, it is a pretty good get for a junior justice get an opinion of that magnitude.
Will: Yeah. Okay. So, the Fifth Circuit is wrong to say there's no standing for two reasons, one of which is too dubious for Justice Barrett’s to join and the other one of which she can join.
Dan: Yeah.
Will: Right.
Dan: Should we do the dubious one first?
Will: Maybe that's easier. Okay, that's out of order.
Dan: This is Part II–B–2, the court says second, and more fundamentally, the Fifth Circuit erred in transforming the redressability inquiry into a guess as to whether a favorable court decision will, in fact, ultimately cause the prosecutor to turn over the evidence. Okay. Why? What's wrong with that?
Will: Yeah. But isn't that kind of what Reed sounded like it was supposed to do?
Dan: Yeah, I mean, I thought that was exactly what it said. It said that, we think that the prosecutor will follow the declaratory judgment, even though the declaratory judgment would not be like an order to him to turn over the evidence.
Will: Right. Ultimately, the court says, “This is a fundamental error.” And I think the main reason is the last paragraph of the section where they say, “The fact that a prosecutor might eventually find another reason grounded in Article 64 or elsewhere to deny a prisoner's request for DNA testing does not vitiate his standing to argue that the cited reasons violated his rights under the Due Process Clause.” And they cite two major cases FEC v. Akins and Lujan v. Defenders of Wildlife, which both discuss reducibility and seem to support this statement. And what Justice Barrett says in her one paragraph separate opinion is, I only want to join the first basis, which we haven't talked about yet. The Court goes further, borrowing from our somewhat relaxed redressability inquiry in administrative law procedural injury cases.
By invoking Akins and Lujan in the unique context of requests for DNA evidence from Texas prosecutors, the Court muddies the waters of standing doctrine. So, what is going on? So, Akins and some parts of Lujan are, in this era where the Court is doing a lot with Article III Standing and Redressability in general. And they do both take place in the administrative law procedural injury context, where administrative law already has these surrounding statutory rules, often about reasons, like if the agency does the right thing for the wrong reason, we frequently make them do it over again and give the right reason, even though the injury comes from the thing they did, not from the reason they gave.
And so, I take it Justice Barrett is concerned that whole network of how we think about redressability in that area may not be good to take on the road for other areas where we have a different attitude towards reason giving and a different attitude towards redressability.
Dan: And so, in rejecting this argument, does that mean that if a prosecutor says, “There are 18 independent reasons why I can't give you this evidence,” someone could still file a suit saying, “Reason number 13 is wrong”?
Will: Well, I don't know about that. So, I don't know that the majority tends to go as far as imposing Chenery on state prosecutors in DNA testing cases.
Dan: You have to only give valid reasons.
Will: Right. If any of your reasons are in excess to the law, then you have to do it over again. I mean, this is a whole strange area of law. It could be that we could actually rationalize this whole area of law by turning it more into administrative law. That actually might be an improvement, but I'm not sure it doctrinally is what's going on. But I think the point is still that if you're complaining that the prosecutor is injuring you and their reasons for injuring you are unconstitutional, then you can challenge those reasons, even if they might later be able to come up with other reasons that would be valid. It's funny, the other place you'd expect this to come up is in an area like discriminatory intent. So, imagine the prosecutors doing something they shouldn't be doing, and they're doing it for racist reasons.
Will: You can challenge that.
Dan: Reason number 12 is because I don't like black people.
Will: Or even just the only reason they only give a racist reason. But then when sued, they say, “Look, if you win, I'm still going to have other reasons for denying it.” “We let you sue in part because there we redefined injury and fact to just say that having discriminatory reasons is an injury.”
Dan: Not necessarily the underlying decision, but you have a right to the decision for the right reasons.
Will: Right. But I mean that was a fudge just to try to figure out how to make these cases go through, I think. And so, we may just be working through the same process a little bit here. Okay, so what's the easier reason if this one is too much for Justice Barrett?
Dan: Okay. We're going to back it up to all the way to the beginning of part two. Part two sets up what the underlying right is, and it's actually going to talk about the standing question in Reed [laughs] more than Reed did itself, which is interesting. It's going to give us a little bit more in the way of detail on that case and about the arguments made. And so that's the setup. Fifth Circuit recognized the parallels, but said it was different and they said, “Well, first of all, look at the complaint.” The complaint takes issue not just with Article 64's limitation to actual innocence claims, but with the barrier Article 64 erects between Gutierrez and DNA testing.
At bottom, he asserts that to the extent Texas law precludes him from obtaining the requested evidence, it violates his rights under the Due Process Clause. Okay, that seems like the kind of thing you'd have standing to raise, right?
Will: Right. When is this saying, in essence, because Gutierrez did challenge reasons one through three, like all three, that's good enough. It can't be the case that we're not going to fall for a Summers v. Tice argument when there are three reasons, you can't challenge any of them because of the other two.
Dan: Yeah. And so, it seems like the saying there's no standing focuses on what the district court did rather than what he was trying to do.
Will: Right. But then, so as they say, the principal dissent argues, okay, then maybe it's not that he lacked standing to get the district court to rule because he did have to challenge all three reasons, but once we got to appeal, then does he have standing? Because even if he successfully gets the one argument affirmed, he's still in trouble because he's lost in the other two arguments.
Dan: And so, all he could get is this declaratory judgment.
Will: Well, I guess what's weird about this argument is so he got one out of three declaratory judgments, right?
Dan: Yeah.
Will: And he had standing to get one out of three because he was asking for three out of three. But now that he got one out of three-- [crosstalk]
Dan: And you look at standing at the outset, right?
Will: Well, yeah, but on appeal, you look at standing with respect to the appeal. So now on appeal, is he lacking standing because he's only defending one out of three?
Dan: Yeah. Well, he's only discussing them, right. He doesn't challenge in a cross appeal, two and three.
Will: Right. Now, that seems to be saying, like, if you win one out of three, then on appeal, you have to defend, you have to cross appeal the other two out of three to even be allowed to defend the one out of three, which also seems odd.
Dan: Yeah, that doesn't make sense to me.
Will: Like, again, I think if he'd lost on the district court on three out of three and then tried to appeal only one out of three, maybe we would say your appeal fails because you're not challenging all three in the way that you were at the initial stage or something, maybe we'd say that.
Dan: Yeah. Although maybe you can say the district court will reconsider as to the other three if he's told that one of them is wrong.
Will: Yeah. Or maybe he just thinks, in fact, I'd be happy to have one out of three. I think getting this one actually is going to-- [laughs] maybe I can comply with the other two. The one out of three he got is the big one that's categorically unable to get through. Just as a matter of law, I don't think it's right that the defendant on an appeal has to have standing to seek affirmance. It's right that if you're appealing, you have to have standing. It's to show that you're injured. But I don't think it's the law that the defendant has to show that they have standing to seek affirmance.
Dan: Yeah. I mean, do we ever say the defendant has to have standing?
Will: I don't think so. I mean, if I sue you for something, and then you file answer, and then I say, “Oh, you're not allowed to file answer because actually you wouldn't be injured if I won.” I don't think that's allowed. Just be like, that's not even a relevant question. I mean, it'd be unlikely to be true and if it were true, that this didn't matter why-- Yeah, it just doesn't make any sense.
Dan: Okay, but is this dispute between the dissent and the majority clearly about appellate standing?
Will: Nothing is clear, Dan.
Dan: Okay.
Will: But I think it has to be about appellate standing. Makes sense.
Dan: Well, are we sure about that?
Will: No, nothing is clear, Dan. [Dan laughs] Okay. And then, of course, we have the third step of, I guess, when Reed seeks cert at the US Supreme Court. Now, he is the one challenging, what happens he does need standing, and maybe we'd now complain, now, does Reed lack standing to get the Fifth Circuit's decision overturned because all it will result in is the reinstatement out of one count out of three when he needed three counts out of three originally. I think that would be the strongest argument to challenge his standing. [Dan laughs] But it seems like one of those chutzpah things. After that many rounds of back and forth, it seems unlikely that the one point at which standing disappears is when the Supreme Court tries to step in and clean up this mess.
Dan: It's also weird to say that, he did have standing at the Fifth Circuit, and the Fifth Circuit was incorrect, but he lacked standing to obtain correction of that.
Will: Yeah. I mean, it is weird. Although it can happen like if I bring a claim for damages, and I am held that I win, but then they determine that the damages are zero or something, and then for some reason, you appeal because you don't want to have the adjudication on your record for some reason, you have standing to challenge it, and I defend it, and then they get rid of it, and then I'm the one who seeks cert to try to get the reinstatement of my judgment of liability for $0. I don't know. You could imagine saying-- [crosstalk]
Dan: That wouldn't work, because there's still value to having a judgment of liability. It can be used in other things. You need a better hypo.
Will: Yeah. Okay, well, maybe there isn't a better hypo. All right, so I have two practical questions. What do we think actually happens now? So, [laughs] Gutierrez won, I guess, on the premise that this was going to help him somehow. Do we think this is going to help him somehow?
Dan: No.
Will: Okay.
Dan: Right?
Will: Well, if not, what was he doing?
Dan: I mean, throwing everything he can against the wall trying to get delay, possibly, or-- I mean, that's not to say it was unethical.
Will: That's the other thing I was going to say is which he got, so, the other interesting fact about this is, this is a capital case, and Gutierrez was scheduled for execution before. I think he was actually scheduled for execution before the Fifth Circuit even decided whether to have a hearing en banc, which is maybe fair, but a little aggressive. And so, one thing he got was the stay of execution while we all puzzled through this question.
Dan: Yeah, but that doesn't last forever.
Will: No, but is that the real relief he sought?
Dan: I mean, it's got to be part of it, right? I mean, it is the ethics of defense counsel that you make every plausible argument you can to try to slow things down. Capital defense counsel.
Will: Yeah. And I don't know, also, it could be that at this stage, somebody will look at this again and say, “All right, sure, we'll give them the DNA testing. Let's find out what happened here.” Maybe that's not how things work.
Dan: No. To the extent the Fifth Circuit said no standing. If it goes back down, the Fifth Circuit could still reverse on the substance.
Will: Assuming that that was part of Texas’s original appeal: Yes. So, let's assume that, yes, it could well be that Texas originally appealed to the clear judgment, saying actually it is fundamentally fair to not extend Osborne to penalty phase questions. That should only apply to liability phase questions. I take it that's the argument, then yeah maybe the Fifth Circuit can affirm again on the scope of Osborne and then he can seek cert again on the question of whether Osborne applies to penalty phase denials.
Dan: Okay. It’s confusing.
Will: It's confusing. It does make you somewhat sympathetic maybe to Justice Thomas’s separate dissent who writes separately to emphasize that this court has no business intervening in this case in the first place because the Due Process Clause should not protect liberty interests either generally or in this area. Now, Justice Thomas is essentially asking for parts of Osborne which he joined to be overturned, right?
Dan: Yes. He's saying there's definitely not a liberty interest here, basically and much more broadly, not a liberty interest in any kind of state created entitlement.
Will: Right. Liberty is about the state not doing things to you rather than about things the state gives you.
Dan: Yeah. Which is interesting. So, I guess he didn't believe this before.
Will: I mean, I think it is the case that Justice Thomas first said this clearly in his Obergefell dissent, which is after Osborne.
Dan: Yeah, maybe you just hadn't thought about it.
Will: Yeah. It's amazing how many areas of law there are that Justice Thomas has not yet decided whether to call into question. It's not that he's decided they're okay. He just hasn't figured out whether they're right or not. But this is apparently one of them. And I'm not sure Justice Thomas is wrong about this as an original matter. By the way, it's a funny story how we go from the Due Process Clause protecting property and liberty to protecting property interests and liberty interests, which I don't know, when you add the word interest to them, it always sounds like you're making them.
Dan: AlthoughI don't think you have to do that. I mean, if you're talking about welfare, I mean, that's money, right?
Will: Well, the money you already have is property. The money you haven't been given yet, it's not your money. The whole reason they had to call it a property interest is because it's not yours yet.
Dan: Well, I mean, if someone promises to give me money and it is [crosstalk] fine.
Will: Yeah, but what if they don't promise to give you money? So, the welfare statutes usually say our plan is to give you money, but we reserve the right to not give it to you at any time, like in basic contract law, that lack of consideration or vested rights makes it. And I will note that we don't give you compensation when we cancel your welfare. Like it's not property for purposes of the Takings Clause, it's property for purposes of the Due Process Clause.
Dan: Yeah.
Will: It's always been awkward. Now it's a little different because he is, after all, in prison and scheduled to be executed. So, even Justice Thomas thinks that implicates liberty.
Dan: Yeah, but we're a couple steps removed from that.
Will: Right.
Dan: I mean, he thinks that he got the process to which he was entitled to make that determination. He got a trial’ he got an appeal, which isn't even the court has said you have no constitutional right to a first stage criminal appeal, which is wild.
Will: So, here's the thing. I think for Justice Thomas, skepticism of the whole enterprise to work, you have to be confident that there is no constitutional right to be released from prison after trial if you're actually innocent, which Justice Thomas has said-- [crosstalk]
Dan: Which would be a substantive due process right.
Will: Well, I guess part of the reason nobody's sure about that right is because it's not obvious what clause of the Constitution that right would exist under. And yet it seems unimaginable that in a free society there isn't some way for innocent people to get out.
Dan: But do you think that?
Will: Well, I think the way is clemency. So, I think-- [crosstalk]
Dan: That's not much of a way.
Will: I think basically every state has an actual innocence right as a matter of state constitutional law. But I guess you'd say, “Well, it's a matter of state constitutional law, so it's not a matter of federal constitutional law what they do.” But, yeah, so, I think for somebody who has strange beliefs like me or Justice Thomas, it might work to say this whole area isn't necessarily derived from the Constitution.
Dan: But if you believe there's some right to be released or not executed if you're actually innocent, that carries with it some right to have some procedures to vindicate that right?
Will: Well, then at least we might be talking about not just a liberty interest, but we might be talking about liberty in some more core sense. And the problem is the court neither believes nor doesn't believe there's an actual innocence right.
Dan: Yeah.
Will: The court has never said there's an actual innocence right and there's not an actual innocence right. And I'm sure they don't want to say there's not an actual innocence right. And as long as it's Schrödinger's innocence right, then it's hard to just say there's no constitutional interest here.
Dan: Yeah.
Will: Which is why we're here.
Dan: All right, that's the majority. That's Justice Barrett. That's Justice Thomas's dissent. We have Justice Alito's dissent. I don't know if there's that much to say about Justice Alito's dissent. It's kind of what you'd expect. A lot of arguments against why the majority says it's right. Anything that stood out to you about this one?
Will: No, we talked through a lot of it as were going through it. This is a confusing area of law in which there are a lot of moving parts. And I still don't really understand Reed v. Goertz [laughs] even now.
Dan: Yeah, I mean, that one is a little bit of a Kavanaugh special in the sense that I feel like he has these opinions that are like, “Here's five things, and I'm going to deal with them all in one paragraph and leave a lot of deeper questions unanswered.”
Will: Yeah.
Dan: What's the one where he has the five reasons?
Will: United States v. Texas.
Dan: Yeah.
Will: Yeah. Yes. Here is a very intuitive result and some reasons to support the intuitive result. You do the math.
Dan: Yeah, I kind of like it. I think Supreme Court opinions are too long. You know, maybe get to the point a little bit more. I mean, it is risky because you're making law with those. If you're dealing with threshold questions that you have to get through, you are making law with how you resolve them. And if there's a lot of uncertainty created by one paragraph resolution of an argument, then that is going to create some problems below.
Will: No, I think there's a lot to be said for them, their writing styles. Justice Breyer sometimes did, too, I think, and to a lesser extent, Justice Kennedy, to just try to focus on the thing that's really going on and doing the work here and not to get too...
Dan: Both of their opinions were longer, though. I think.
Will: That may be. That may be. Although also, I mean, I agree that Supreme Court opinions are too long, but these days, a lot of the opinions we think of as long are actually not that long. [laughs] It's just all the other opinions that are long.
Dan: Yeah, that's fair.
Will: Like take this one, Gutierrez v, Saenz. The majority opinion is 13 and a half pages. The PDF as a whole is 55 pages. That's a couple pages of syllabus, but it's a lot of pages of concurrence and dissent. Even Trump v. CASA was like, the majority opinion is pretty short and actually pretty tight. It's just all this other stuff.
Dan: All right. More to say?
Will: I hope not. [laughs]
Dan: All right.
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the people leaving voicemails to the people writing in with many emails and comments, some of which we can handle responding to, all of which we read and think about. Thanks to those of you leaving comments on the blog where we've been also posting these episodes and getting some discussions going amongst our listeners.
Dan: Please rate and review on the Apple Podcast Store wherever you get your shows. You could write a review like one of our most recent ones by MarkBowen303 which says, “The show is like listening to two extremely overqualified guys argue about section 1983 liability while trying to remember if they left the oven on.” I like that very much. Check out our website dividedargument.com for transcripts of the episodes, blog.dividedargument.com for many posts from the larger universe of Divided Argument friends about all sorts of stuff, including a number of posts from Sam Bray, the big winner in Trump v. CASA, that will help you understand the issues in the universal injunctions debate a lot. store.dividedargument.com for merchandise, send us an email pod@dividedargument.com, leave us a voicemail 314-649-3790 and if there is a long delay between this and our next episode, it will because we are still very confused about Gutierrez v. Saenz and this whole area of law and we haven't figured it out and it's broken our brains.
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