After another discussion of Supreme Court ethics and legitimacy (hopefully our last for a long time), we discuss three of last week's decisions. We cover issues of statutory interpretation in Garland v. Cargill (the bump stock case), of standing in FDA v. Alliance for Hippocratic Medicine (the mifepristone case), and of constitutional remedies in US Trustee v. John Q Hammons (a bankruptcy case).
After another discussion of Supreme Court ethics and legitimacy (hopefully our last for a long time), we discuss three of last week's decisions. We cover issues of statutory interpretation in Garland v. Cargill (the bump stock case), of standing in FDA v. Alliance for Hippocratic Medicine (the mifepristone case), and of constitutional remedies in US Trustee v. John Q Hammons (a bankruptcy case).
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. We’re both back from one of our vacations this summer. Plural vacations. We were not on the same vacation. Where were you, Will?
Will: Washington, DC.
Dan: Okay. That's not some great vacation destination.
Will: We went to the Lincoln Memorial.
Dan: Okay.
Will: Took our kids to read the--
Dan: I took my kids there earlier this year. It's a thing to do.
Will: Yeah.
Dan: It's all under construction though. So, it's kind of a mess.
Will: That was disappointing, but we still got to get the basic impression.
Dan: Did you see any other stuff? We went to the World War II Memorial, the Vietnam Memorial. You did that stuff?
Will: We did the reflecting pool in the Vietnam Memorial while we were there. Did a bunch of other DC stuff. But those were our main classic DC monuments.
Dan: Those are classic. Well, I saw no monuments. I was in Massachusetts at my in-law's house, but my kids had a lot of fun. My oldest likes fishing. I don't know where he gets that genetically, but he's a big fisher. But not a lot of work got done for me. I did read some Supreme Court opinions that came out, and the fruits of that labor will be revealed, or not, this episode. We're going to talk about some of those. But before that, what odds and ends should we dredge up?
Will: Well, first, let me say in our absence, thank you to the listeners who have been leaving reviews, which are much nicer than the previous round of reviews and are helping to wash those away. We got Anonononononononon7, who says, “Great pod. Will is sliiiightly more partisan than he’d like to admit but it’s all good because his analysis is very solid. And he’s a mostly consistent originalist, which is rare. But the depth of knowledge about historical cases and the interestingness of the takeaways from current cases are unmatched in the legal pod world.” That's pretty good, right?
Dan: How partisan are you willing to admit being? Not at all?
Will: This is one of those paradoxes, right? Whatever I say--
Dan: Yeah, you're more partisan than not. But you could contest the premise. You could say “No, actually I am extremely partisan.” No. If I were to say, “Will, how partisan are you?” Just answer honestly. Would you say zero?
Will: Well, partisan is really confusing because the political parties are very strange. But I take it, it means something ideological.
Dan: Yeah, actually, I have a thing I want to say about this that we'll circle back to a little bit later, this idea of what does it mean to be partisan. So, let's come back to that thought in a minute. I have one from DanEppsFan1, who says “They took a break from chanting Justice Scalia’s Morrison dissent to leave a review: Good callback to a past episode. This podcast is the best place for Supreme Court analysis. Unscheduled and unpredictable as advertised.” Disappointed to know that username wasn't already taken, that they're not DanEppsFan2 through 800 was already taken, so apparently not. But I’ll go with it.
Anything else worth highlighting there? Other than just a further appeal to people to come back and keep rating? We're still at 4.8. Would love to get it back up to 4.9, where we were for quite some time, and then you said something, or I said something or who knows what happened that got us bumped out a little bit.
Will: Yeah.
Dan: Okay, what else to circle back to? Flag thing is never going to go away, I think.
Will: Apparently.
Dan: We have to keep hearing about that, and probably we will forever. And I know that you love talking about the ethical scandals of the Justices. It's your favorite topic. And you suggested to me that we just do a podcast all about that, but I said no, maybe we should talk about some legal issues sometime. It's your favorite topic.
Will: You're being sarcastic, right?
Dan: Yes. Yes. [laughs] I think this is your least favorite thing that we talk about, right?
Will: I mean, I think it's a dumb topic. I do--
Dan: In general, we should never care about the ethics of Supreme Court Justices?
Will: Well, I think almost all the things that people say about it are dumb. And so, yeah. In an ideal world, we would care about the ethics of Justices and say smart things about them. But in the second-best world, we might just not care about it. But I enjoy how much the listeners hate it. So, I do feel the more we talk about it, the more we risk provoking the one-star people again.
Dan: They hate what we say.
Will: They hate what I say.
Dan: Okay. Yeah.
Will: They hate that I apologize for the unethical, corrupt, bribed.
Dan: I might provoke you into doing that again. So, we heard from one listener, friend of the show, at least friend of 50% of the show, and a friend of mine, actually, from high school, Alex Aronson, who is now the Executive Director of an organization called Court Accountability and a former staffer for Sheldon Whitehouse. I worked with him a little bit during the Barrett confirmation and someone who is an admitted harsh critic of the Roberts Court. But he wrote in with some comments about our flag coverage and maybe your flag coverage that I thought bears grappling with.
And he said, “We talked about the kind of optics.” But he says, “I kept waiting for either of you to bring up the federal judicial recusal statute. That statute, 28 U.S.C. § 455(a), provides, any Justice of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. Isn't that the legal standard we should be measuring Alito's story against?” Okay, and Alex offers some more thoughts on that. And Alex, apologies. It’s a long email. I'm not going to read the whole thing, but I'll come back to what you say in a second. But just let's stop right there, Will. Okay, so, first of all, what do you think of that standard? That is the relevant standard, right?
Will: That is the relevant standard. I think it's the same standard that Justice Alito applies. It is sort of--[crosstalk] Well, it applies to the code of conduct, but the code of conduct that he quotes also requires a Justice to disqualify themselves in a proceeding in which the Justice's impartiality might reasonably be questioned.
Dan: But here's what he says a couple of times. “I'm confident that a reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the events counted do not meet the applicable standard.”
Will: Okay, good. This is what I said. So, I think Justice Alito has now supplied a novel gloss on the reasonable person standard, which is that in the context of a Supreme Court Justice, a reasonable person is the person who is not motivated by political or ideological considerations or a desire to fight the outcome of Supreme Court cases. I love this.
Dan: Of course you do.
Will: I've always thought it was a hard thing about that basic reasonable person standard, that it's really hard-- in a world where everybody's trying to work the ref, it's really hard to figure out how to apply it. And so, I think Justice Alito is trying to supply a context-specific answer to that. There is an irony.
Dan: What does it mean to be motivated by political or ideological considerations? The second part, “desire to affect the outcome.” Okay, fine. But what if we just look out in the world, and 70% of people are motivated [laughs] by political or ideological considerations, whatever that means. Maybe 90% of people. Maybe 100% of people. And so, a Justice does something, and reasonable people who are motivated by left-leaning ideological commitments think that makes the Justice look super corrupt or biased or whatever. That means we should just treat that as irrelevant?
Will: I think we should ignore political or ideological considerations, yes.
Dan: What does that mean though? What does it mean to ignore them? Does it mean we discount the interests, the appearances to people that have those commitments? Because I think doesn't that eliminate most people?
Will: No, I think they have to be motivated in this objection. So, his point is a lot of people are objecting to Justice Alito’s flag flying because they don't like Justice Alito or because they don't like his politics. They don't like his ideology. We have to put that aside. We have to take a hypothetical person who is indifferent to Justice Alito's politics or the politics of his flags and is just trying to examine the ethical question. Maybe there are very such people.
Dan: There may be zero such people. I'm not sure.
Will: So, the reasonable person might be, as it is in other areas of law, a sort of legal construct rather than an actual person. Although, I would like to nominate myself as a potential reasonable person, I think I'm pretty good at it--
Dan: I'm not going to let you get away with that. So, it does seem like don't we want a recusal standard, isn't the point of a standard that's appearance based? One that is designed to make the court appear fair and unbiased to people who disagree with what that court is doing? Isn't that part of the reason we care about this stuff? So, clearly, it can't be the standard that everyone who agrees with me is going to find this okay, that clearly can't be the appropriate standard.
Will: Right. But I think the problem is, as we've talked about, in a world where the perceptions of the court have become so politicized, you might just not be able to-- There might not be an obligation of the standard that will successfully appeal to people who disagree with the court because they are determined to hate the court and undermine the court.
Dan: So, does that mean there's never reason to recuse?
Will: No, but that means that it's not based on the feelings of people who are doing it because they're out to get Justice Alito and Justice Thomas. It has to be based on people like me.
Dan: [laughs] Yeah. You're really going to antagonize-- Yeah, you think you're the only person. Right. Are there other humans who would meet this standard? You think I don't.
Will: No, you might. You might. [Dan laughs] I'm open to that.
Dan: But will you disagree? If you're open to it, then you lose. Because I think that-- I don't know if I have a 100% conclusion on the recusal question, but I do think it creates, I do think that the things that have happened there are bad and one of the reasons in which they are bad is that they cause, I think, a lot of Americans to reasonably feel the court is-- [crosstalk]
Will: Right.You're not outsourcing to other people. So, I guess if you tell me that you're not motivated by political or ideological considerations in this at all, I'll believe you. And if you tell me that you personally think Justice Alito cannot fairly judge the Trump case because of the flag, that'll give me a lot of pause. If you tell me you think other people think that, that's different.
Dan: What if it's a lot of people?
Will: Do you think that Justice Alito can't judge these cases fairly?
Dan: Why is that the standard? I guess I think that a lot of people might reasonably think that. And I think that in and of itself is a no.
Will: The question is the Justice impartiality has to reasonably be questioned. And my claim is, Justice Alito’s claim is that other people are questioning it unreasonably. But if you will directly non derivatively question it yourself—[crosstalk]
Dan: I will question the conduct. I've questioned the conduct.
Will: But the question is the impartiality. Disqualify yourself if you're reasonably seen as not impartial.
Dan: Yeah, I guess it's all sort of baked in because I already have my underlying views of how he's going to decide cases and the flag piece of it is a very small part of it. I mean, what if he had put up a Trump for President sign?
Will: I don't know.
Dan: Well, no, you tell me. Should that be grounds for recusal? He had he put it up?
Will: I don't think so.
Dan: You don't think so? You think that a Justice putting political flags up on their front lawn is not grounds for recusal?
Will: In all cases involving that president-- I think if you put a Trump for President sign up, that would be grounds for recusal from cases about the 2020 election. I'm not sure that's grounds for recusal in cases about the non-president's conduct three years later.
Dan: What if he did it this week or the week of the immunity argument or--?
Will: Yeah, I think if he did it the week of the immunity argument, that would be different. If you walked onto the bench with a Trump button on [Dan laughs] during the immunity argument, I think that would be going too far.
Dan: Wow. Okay.
Will: Do they even make Trump buttons? What about a MAGA hat?
Dan: I'm sure they make Trump everything. They make the Trump gold sneakers. You've seen these-- Have you invested in those yet?
Will: No.
Dan: I don't know if those actually got off the ground, but--
Will: This may be a surprise to you, Dan, but I'm not a Trumpy.
Dan: [laughs] I know you're, as I called you on Twitter, a left-wing progressive hack, trying to take down the President.
Will: I don't want to relitigate the Alito question, but I do think Alex is right to point out the centrality of the recusal statute and to point out that Justice Alito is doing something very novel and ambitious in his interpretation of the recusal statute. I, as one of the lone reasonable people, happen to think that's a defensible move, but I bet a lot of people will disagree, and it's certainly something that should not escape analysis and skepticism.
Dan: Okay, and then last thing about this. Alex raises this hypothetical. What if, say, Justice Alito was the decisive fourth vote for cert in the Trump immunity case? He says, “To my apparently unreasonable mind, a DIG that reinstates the D.C. Circuit's opinion and allows Trump's election subversion trial to proceed posthaste would seem in order. But genuinely, I'd love to hear your thoughts as long as you don't fight the hypo,” which you might do once in a while.
Will: Yeah, well, we were just fighting the hypo, but let's now not fight the hypo.
Dan: Yeah.
Will: So, suppose that Justice Alito was supposed to recuse himself and didn't. What's the remedy?
Dan: Well, you disagree with the premise, which is this, you don't think that should apply.
Will: Right. But let's grant the premise. The premise is that he should be recused by statute. I wrote about this for Hugo Black, not in the context of the recusal statute, but there were these questions about the validity of his appointment that were litigated in cases like Ex parte Levitt, and then other cases. And so, I think the standard answer is a Justice who's disqualified to sit, their vote doesn't count, but you have to make a motion or something in a timely fashion or make a petition for a hearing and if you don't, it's too late. So, I think you could move to reconsider the petition for cert. I assume the time has run on that, but maybe not because it's still pending, I'm not sure. But I don't know if you could just DIG if that's a substitute repetition for cert.
Dan: Yeah, that's interesting. I don't know if that exact thing has come up. Okay, just last thing, going back to the underlying merits of the issue, do you think that had-- Okay, first of all, had it been a Stop the Steal sign and that Justice Alito had put it up himself, should that have required recusal under the standard?
Will: Not from all subsequent cases.
Dan: No. No. From, let's say, the election subversion case, stuff coming out of the Jack Smith indictment.
Will: Oh, I see.
Dan: That's the case on the table right now.
Will: Yeah. Yeah, right. Yeah, maybe.
Dan: [laughs] Okay. All right. That's probably the best I'm going to get out of you. So, Alex, that's what we have for you. I think it's probably not everything you wanted, but Will was willing to concede that under some hypothetical set of facts, in some universe, Justice Alito might have to recuse from something. Small victories. Okay. But there's actually more to talk about in terms of ethics. I'm sure you'll be--
Will: Glad.
Dan: --delighted to know. We have some new financial disclosures, which are interesting. Fix the Court put together a spreadsheet that tallies up the value of the gifts Justices received and reported over the past two decades. And it is for some of them, kind of a lot, and some of them not so much. Justice Kagan totals has seemed to have received five gifts worth $1,100, nearly $1,200.
Will: Yeah.
Dan: Justice Kavanaugh has received one $100 gift in addition to-- Do you remember the whole thing about the shadowy conspiracy to pay off the mortgage on his house or something?
Will: Wasn't that just his parents?
Dan: I think it was just his parents. I don't think they ever got a conclusive answer to that, but it sounded to me like it was just parents and people had something-- Didn't they have some elaborate thing? It was about baseball. He had gambled and somehow—Now, I've forgotten. I think there was plenty to criticize at various points, but this one I thought was dumb enough that I've now forgotten. It was somehow connected to baseball tickets or something.
Will: I think he and a group of friends went in on season tickets for the Nats.
Dan: Yeah. And somehow, that paid off his mortgage. Is that--
Will: Well, yeah.
Dan: Or am I. Am I conflating two supposedly--[crosstalk]
Will: I don’t think you were conflating them. But there was some theory that he was on by the mob. [Dan laughs] That was part of the-- I think these theories are false, by the way.
Dan: I'm glad you're willing to say that. But I do think-- And there's one where I don't think recusal is required. I don't think a reasonable person could believe that he was bribed by the mob or whatever. So, total amount of gifts. Topping the list by an order of magnitude is Justice Thomas, who reports-- adding up things in a couple spreadsheets, I think it's about $6 million in gifts over 20 years or so.
Will: You don't think it's four?
Dan: Mm-hmm
Will: You don't think it's four?
Dan: Four what?
Will: $4 million.
Dan: Well, I'm looking at the thing that Steven Mazey broke it down, the first spreadsheet has $4 million, and then there's additional gifts, which increase it by $2 million.
Will: Okay. Maybe a subset of the-- [crosstalk]
Dan: Yeah, I think, unless I'm misreading it. So, it's either $4 or $6 million. As I understood it, as it was being reported, it was six. But either way--
Will: Yeah.
Dan: --It's a lot. The next highest is Justice Alito at $170,000. So, it's way, way more than everybody else. And that includes, a lot of fancy travel, a lot of trips to fancy resorts and things like this. Meals and lodging at the Bohemian Grove, paid for by Harlan Crow. Thoughts?
Will: I think he deserves a lot more.
Dan: [laughs] I was wondering whether you were going to be willing to say that on the show. What do you mean by that?
Will: I mean, Justice Thomas is one of the greatest Justices. He's done an incredible service to the country and the law.
Dan: You should get paid out for that?
Will: I mean--
Dan: You should get millions of dollars for that, or that should just be part of your duty as a public servant?
Will: As a matter of dessert, I just think he's not been rewarded for all that he's given us.
Dan: Well, he seems to have subsidized his lifestyle. He has a lot of power. A lot of prestige.
Will: I just think, Justices Thomas-- [crosstalk]
Dan: You have no concerns about seeing this? Like a Justice getting huge amounts of gifts from wealthy people? You don't think that—[crosstalk].
Will: All I meant to say is, I think Justice Thomas is one of the most underrated Supreme Court Justices. It's not a good look.
Dan: Okay.
Will: How about I give you that?
Dan: Don't you think that in an earlier period, maybe a slightly less polarized period, this would be more of a scandal than it is?
Will: Maybe. I'm not sure. I mean, we talked about Fortas before. I think there were--
Dan: You think Fortas is different because at least there was more of a possibility that he was taking money to influence his decision making in cases?
Will: Right.
Dan: I mean, certainly it was a smaller amount over a shorter period of time. It's troubling. [crosstalk]
Will: Right. More reason to suspect on both sides that's part of what was going on, and that's the thing we really care about. But look, I do think, yeah, for many Judges, there was something of a norm. This kind of thing was just not done. And obviously, that norm is not being followed here.
Dan: Well, it's not being followed by everybody. I mean, it's certainly-- Most of the other Justices seem to be accepting a relatively small number of gifts. And I do think that as people at their level of government, there's all sorts of things where people might ceremonially give them gifts and things like that. And I think that just saying “no gifts ever,” I'm perfectly willing to say that doesn't make sense for people on the Supreme Court in particular. I do think that makes perfect sense for people on the court of appeals. But I don't think everybody thinks you should just take unlimited luxury vacations from rich people that want to hobnob with you. I'm sure that would make many judges and many Justices uncomfortable, and they would think that was untoward.
Will: Although you sort of wonder, for the people who don't like Justice Thomas’ jurisprudence, wouldn't they like him to spend more time on vacation and less time with his clerks cooking up new concurrences on the political question doctrine or racial gerrymandering or whatever else?
Dan: The specific argument that I've seen advanced, and I don't think this is crazy, is that there is a concern among folks on the right that Justice Thomas will leave the court and that he is seen as incredibly valuable and, in fact, probably better than almost anybody they could get to replace him with. And so, the part of the motivation is to subsidize his lifestyle so he does not feel pressure to go become a highly paid Fox News commentator or rainmaker at some rightwing litigation firm or something like that. That is without endorsing it-- Not endorsing it. Without endorsing it or not endorsing it, that's not a crazy and implausible thing. And to the extent if that were true, that seems troubling.
Will: I mean, I guess so, I remember hearing concerns that when Justice Ginsburg was having her various health battles, that she was getting medical treatment that an ordinary nonjudge wouldn't necessarily get access to, doctors and cancer facilities that were beyond the state of the art because people really wanted to keep her on the court and keep her alive. And I guess I thought that seemed okay. I get why somebody would complain about that, but I thought that seemed okay.
Dan: Was she getting it for free?
Will: I don't know.
Dan: Was she getting it through her insurance? [crosstalk]
Will: I don’t know. I doubt she was paying out of pocket.
Dan: Yeah, but she has good health insurance.
Will: Yeah. A lot of this was before Obamacare, so.
Dan: [chuckles]I mean, they had good health insurance before Obamacare. I had federal government health insurance before Obamacare.
Will: Probably not for people with terminal cancer and preexisting conditions, but, mmm, I don't know.
Dan: The preexisting condition thing wouldn't have been a problem for her reasons. I don't need to go into. I'm sure she had continuous health insurance.
Will: Yeah. [crosstalk]
Dan: I don't know if a billionaire paid $10 million for her to get some experimental treatment. I don't know. I don't know. I don't know. I just don't like it.
Will: I concede the point that it's not a good look and that it's outside the norm, and I think norms have value. That said, if the worst that we're talking about here is that Justice Thomas is such a great Justice that people want to encourage him to just keep doing his job the way he's been doing it the whole time that seems good.
Dan: Well, I mean-- or rather, Justice Thomas is a Justice who particular moneyed interests find to be doing a great job and they want to encourage him. So, I mean--[crosstalk]
Will: Yeah. When you say it like that, it sounds worse, but I think it's--
Dan: Yeah. I don't know. What if some billionaire put out a thing tomorrow that said, “I really like probusiness Justices. And so, after this term, I think I'm going to invite the Justices I see as probusiness on monthlong vacations on a luxury yacht, travel around the world,” what have you, some vacation that's worth like, a million dollars.”
Will: Yeah. Just to make sure we're on the same page, what if some groups that felt like Justices who supported civil liberties were really important, and they said, “We don't have a lot of money because civil liberties is not a really lucrative field, but we want to make them feel like heroes. So, we're just going to do a lot to make them feel like heroes. We're going to invite them to headline everything and write books about them and give them lots of medals and prizes and name our children after them and everything we can to make them--” [crosstalk]
Dan: A huge amount of that is obviously protected speech. That's other people talking about the Justice, and I just don't think that's the same thing. It involves no-- it's not under the Justice's control. It's not them accepting anything.
Will: With their coordination. We'll invite them to come to events, to come speak at things and award them prizes and all that stuff.
Dan: If you think that is wholly-- What if it was a $10 million cash gift? They just said, “The end of the term we will give out $10 million cash gifts to the probusiness Justices.” And this is a billionaire who has no particular business before the court. He thinks that we should have a more business-friendly court.
Will: I don't like it. [laughs]
Dan: I hope not. I think most people and most reasonable people, almost all reasonable people would be willing to concede that is worse than civil liberties groups inviting Justices to give talks.
Will: Well, not just giving them talks, but treating them like heroes. It’s one thing to say, “You're interesting. You might have some thoughts. Why don’t you come?”
Dan: But I'm having trouble articulating what rule we could come up with that would ban that practice. Like, Justices may not be treated as heroes. Okay.
Will: Well, let's just say I don't think we have rules that ban either of these practices.
Dan: I think that we could have rules that ban gifts. We could easily have rules that ban gifts.
Will: I think we don't have rules that ban either of these practices. If the question is, should the Supreme Court adopt new rules that forbid Justice Thomas from getting gifts, maybe. I don't have a strong view about it. Maybe they should. If the question is, do they have some secret rule that already forbids this because of the general principles--? [crosstalk]
Dan: You think the answer is, should they--? It's just a maybe to my hypo is to whether they should have a rule against accepting $10 million cash gifts from people whose stated goal is to encourage certain kinds of rulings.
Will: I think if your hypothetical tycoon shows up, they should definitely pass a rule against that. I don't think they have a rule against that right now. I like to be a little clear about the difference between what the law is and what the law should be. So, I don't think Justices would be violating the law by doing that, but I think it would be bad, and it would be a good reason to forbid that kind of practice.
I don't think that's what's going on with Justice Thomas. So, I don't think it's as clear that we should adopt a rule to deal with the hypothetical railroad tycoon just to deal with Justice Thomas. But if Chief Justice Roberts and his colleagues feel differently, that's their prerogative perhaps. Some people even think Congress could regulate this.
Dan: Where did you land on that?
Will: Oh, I think they can regulate this.
Dan: They can. The thing that the Judicial Conference puts out, which I think is incorporated by reference in the Justices own guidance, Judicial Conference regulations on gifts says, “A judicial officer employee is not permitted to accept a gift from anyone who is seeking official action or doing business with the court or other entity served by the judicial officer or employee, or from any other person whose interests may be substantially affected by the performance or nonperformance of the judicial officers or employees’ official duties.” That second part, I guess the question is, how capacious is that? But I do think if someone has a general interest in a certain regulatory mood from the court, that might reasonably be fit within that standard. We could debate, under my hypo, whether it's actually covered, but-- Okay, this is enough about this topic.
The only other thing, just to be fair and balanced, we're also seeing criticism from the right about this. I just saw this just now before recording, which is that Justice Jackson apparently did not disclose certain-- on her financial disclosures going back about a decade, did not disclose payments made to her husband for consulting on medical malpractice cases. Interestingly, she did disclose them in 2012, and then she didn't disclose them for a decade, and then she started disclosing them again a couple years ago. Not sure what to make of that.
Will: Do we know if it’s a lot of money?
Dan: I don't know if we can tell how much money it is.
Will: Do we care? Do we think differently if it's $600,000 a year? Does that bother us?
Dan: I think that the argument being advanced is we would maybe like some more information about this, if possible, to make sure this isn't related to any cases that she was involved in or cases adjacent to cases she was involved in, things like that, and I could live with that.
Will: Mm-hmm. You also didn't mention that she received Beyoncé tickets from Beyoncé.
Dan: Oh, yeah, yeah, I forgot about that. Yeah, that was one of her gifts which were worth several thousand dollars.
Will: They're worth more than that, but okay.
Dan: Okay, well, I think that she might have disclosed the face value, which is not necessarily the same as the market value.
Will: Right. I mean, similarly, a lot of the travel, putting dollar values in lot of these things are complicated.
Dan: Yeah.
Will: I mean, would you pay a million dollars to go to the Bohemian Grove with Harlan Crow?
Dan: Depends how much money I had.
Will: Like, right now?
Dan: No, that would wait [laughs] [crosstalk]
Will: I'm not even sure I would do it for free [laughs].
Dan: I mean, I don't know. It seems like pretty nice. How much time would I have to spend with versus just doing my own thing?
Will: The whole Justice Thomas’ experience. You're with him all the time.
Dan: Well, I don't know what the Justice Thomas experience is. I know I might get painted in a portrait or something.
Will: Yeah. Yeah.
Dan: I don't know. I would take the invite and we could report back on it if that is forthcoming. Okay. I know this has been going on forever. Enough about that. Last thing, I'm sure you're going to love this one. We have the secret recordings, the Justices scandal. This is not great.
Will: These are outrageous.
Dan: These are not great. This is not great. Basically, what happened was liberal activist and documentary filmmaker, Lauren Windsor, bought tickets to the Supreme Court Historical Society Dinner. And this had previously been discussed in the media as a place you could go, hobnob with Justices. Apparently, that is the case. And then, she somehow hooked herself up with some recording equipment, not totally sure. Maybe she's using her phone or something. You get searched when you go into the building, so I don't know.
Will: But I think, for the Supreme Court Historical Society dinners, you can have phones. It's not like that--
Dan: Yeah, it's not the courtroom. I'm just wondering if she was separately wearing a wire, or if she just turned the voice memo thing on her phone. She went to some of the Justices and tried to throw them some right-wing red meat and see if they would pick it up. And I confess, I did not listen to these. I just found the whole thing kind of cringey and I just didn't want to listen to them and maybe that means I'm not doing good journalism, but I don't think I'm really doing journalism. So, that's okay. But I did read the press accounting of it.
And so, one thing, she talked to the Chief, and the Chief just completely nailed it. She was like, “Oh, don't you think we're a Christian nation?”, whatever. And he was just like, “Oh, I don't know. We've got Jewish and Muslim friends might disagree.” He just would not take the bait at all and just said stuff that I personally think a Supreme Court Justice should say. Not coming down sides of one of these cultural questions. I thought he did great from my perspective.
Yeah. You know the old joke about Stalin? This is from the Stalin era. So, the joke is that Stalin really wants to know what people think of him. And he shaves his mustache off, and he goes and pretends to be somebody else. He goes up to some Russian guy, and he's like, “Oh, what do you think of Comrade Stalin?” And the guy looks around and then says, “Okay, come with me.” And they drive out in the country, and they go on a mountain path and they get to a lake, and they get on the boat, and they swim out to the middle of the lake where nobody's around. And the guy leans over and he says, “You know what? I actually kind of like him.”
And sometimes, I feel that way about the Chief. I think everybody kind of hates him. I actually kind of like him sometimes. No everything he does, but I don't know. He brings a certain amount of common sense, and I kind of like common sense. He is really trying to hold the sides together, which I think is a good thing for the country. You probably like him for different reasons.
Will: Those are great reasons.
Dan: Okay. Justice Alito went in a slightly different direction. He, I would say, maybe took more of the bait that she was giving. She was trying to paint herself as, I think, a conservative Christian. And he seemed to share a little bit more of her premises.
Will: I did listen to the recordings, and I don't really think that's fair. I do think he does not have the Chief's gift for these situations, but I think he pretty quickly switched to a, “Well, the thing is, the country's so polarized and people just aren't willing to compromise.” I actually don't think he said anything materially different from what she said.
Dan: Yeah. What do you think about what he says is, “You're probably right. One side or the other he is going to win. Well, maybe we can work together, but there are differences on fundamental things that can't be compromised.” And then, he also agreed that we need to “return our country to a place of godliness.” What do you think about that?
Will: I'm not sure. From my listening to it, it's not clear he was really agreeing with that, but he did not jump in with his Jewish or Muslim friends the way the Chief did.
Dan: Yeah, I think this is related to a thread I dropped at the beginning, which is that, there are things Justice Alito has said publicly, his Zoom Federalist Society address, that speech he gave in Rome that he's gotten a lot of criticism for and that you have always said are fine, and they're often called partisan. And I don't know if partisan is the right way to think about it. I think that maybe there's this idea of being culturally partisan. Does that make sense? Like, not politically partisan in the sense that we have two partisan cultures and that Justice Alito has sometimes seemed willing to publicly say things that say, “I am on that side of this culturally partisan divide.” And the Chief really tries not to do that. I think. And I like that, I admire that. Does that distinction make any sense?
Will: It’s interesting. Maybe. I mean, I see sort of what you're driving at, although I was trying to think of it-- Well, it's funny. I was just wondering, like, during the McCarthy era, were there any Justices who just would say things like, “It's really unfair what the witch hunt we’re on?” Maybe not. Maybe they all would have thought that was inappropriate.
Dan: I'm not aware of that.
Will: Yeah. And I think Justice Alito is doing that kind of thing now. He perceives-- Yeah.
Dan: I do think it probably wouldn't be appropriate for a Justice to comment on what's happening in the Senate, right?
Will: Well, I'm just thinking about the Rome speech. Imagine a Justice gave a speech, but the importance of civil liberties and how civil liberties are under threat and civil liberties are really important. It was in generality, so it wasn't talking about any particular civil liberties, but it was like at a moment when whether the American Civil Liberties Union and other civil liberties groups were good or Stalinist was a live, polarized question, there'd be a sense in which that would be culturally polarized if that's not exactly partisan. Or, Justices certainly, who took that view about race outside of the context of a case like Brown, went out of their way to talk about equality and stuff at a time when that was seen as a polarized issue, yeah.
Dan: I guess, for me, it would depend on what exactly was said. And I don't have a conclusive definition worked out on this concept, but I do think it captures the thing that has bothered me about some of these remarks. So, I just feel like he's like, hey-- he's not saying I'm always going to vote republican, but he's still saying, like, “Look, there's this divide in the country, and I'm with you guys.”
Will: That's where I guess, I think it is hard to even just disentangle it from the merits, unfortunately. Like, I think Justice Alito thinks that religious liberty is similarly under threat and is a really important issue that shouldn't be a partisan or ideological issue, even though the fact that it's sufficiently under threat means that there's a way in which it is a polarizing issue. And if he were right that's what religious liberty is like and that's how it's under threat, then I think it's hard to be too upset about it. But precisely because a lot of people think he's not right about that, it does-- it raises this concern.
Dan: Yeah. But there's also a slice of it that's like, who do you see yourself as speaking to? Are you even trying to make arguments that are for the other side, or are you just, just speaking to people on your side of the team? And I feel like some of his comments have veered into that. Was it the Rome speech where he was mocking all the politicians who had disagreed with his ruling, thing like that? I don't know. I guess if I were a Justice, what I would try to do is imagine that I'm speaking to an audience, a big chunk of which like me and agree with me, a big chunk of which don't, and I'm going to try to not make it worse.
Will: Mm-hmm. You'd be like the Chief.
Dan: Yeah. I'd probably be a little bit more forthcoming than he is, but yeah. Again, I think that's what we should want from Justices. Okay, we actually don't have much in the way of shadow docket activity. So, we can just go right into some cases. We've had six opinions since our last time, and we are going to speak in some way of four of them.
Will: We've had more. We've had nine. We're just forgetting about-- [crosstalk]
Dan: When did we record last?
Will: We recorded a couple weeks ago. So, the June 6th opinions, we decided--
Dan: Oh, yeah.
Will: --need our notice and we don't [unintelligible [00:37:05] talk about them.
Dan: Yeah, but since we recorded, we haven't had nine, right? Didn't we--? Oh, no, you're right. We were going to record on this June 6th. I think we even suggested to listeners that were, and then we just decided, forget about it.
Will: That the cases were-- [crosstalk]
Dan: Yes, okay, fair enough. Yeah. Okay.
Will: But last week, we had six more opinions. US Trustee v. John Q. Hammons, Campos-Chaves v. Garland, Garland v. Cargill, FDA v. Alliance for Hippocratic Medicine, Starbucks v. McKinney, and Vidal v. Elster. I don’t think we can talk about them all, but where should we start?
Dan: Gosh, I could go with any of these. Maybe we should just briefly talk about Garland v. Cargill just because it’s the one that has gotten the most attention and also maybe the one at which we have least of interest to say?
Will: Sure. This is the bump stock case?
Dan: Yes. If you read Twitter, as I do sometimes although I've restricted my access to it and only check it once or twice a day at most--
Will: How do you do that? Is it not on your phone?
Dan: I deleted the app, so I have to go to the web app to use it. Since Musk took over and fired all the engineers, the web interface actually just doesn't work that well for me and I often just give up. And then, I have on my phone, I have focus restrictions that limit the amount of time I can do social media stuff. But also, I just broke the addiction a little bit.
But I still do. I do check into it largely because I feel like I have to just or else I miss important things. If I felt like there was a reliable source of news where I could get all these little things that zeitgeist about the court, I would probably just drop it, but I don't think that's really possible. I would like someone to aggregate all of that.
But I was going to say, if you are active on there on Twitter/X, you will know this as the most important Second Amendment case of all time.
Will: Oh, who said that?
Dan: Well, no one said that exactly, but it got a lot of tweets about, “Can't believe the Justices are interpreting the Second Amendment this way.” This is not a Second Amendment case.
Will: Not federal case. [crosstalk]
Dan: This is natural case.
Will: It's a pure coincidence that the majority is Justices Thomas, Roberts, Alito, Gorsuch, Kavanaugh, and Barrett with Sotomayor, Kagan, and Jackson dissenting.
Dan: Yeah. This is an ideologically and politically polarized case. Is that a fair way to describe it? And it is not a constitutional case, but it is one where the Justices disagreed about statutory definitions in ways that predictably track political affiliation and ideology.
Will: All the conservatives ruled that the Trump administration had exceeded its power, and all the liberals defended an abuse of power by his administration. [laughs] [crosstalk]
Dan: That's one way to describe it. So, basically, what's at issue here is there's longstanding federal law that prohibits possession of machine guns. And as I understand it, for some significant period of years, that definition had not been treated by the government as covering these things called bump stocks, which basically-- I'm not a firearms guy. You're a kind of libertarian, right? Will, are you a gun guy?
Will: I've fired guns, but I don't own a gun.
Dan: You don't have 15 guns at your house?
Will: I don't. I think they're dangerous.
Dan: [laughs] Well, I mean, that's the whole point. They are dangerous. Yeah, I don't either. But you basically put these things on the stock and you hold them with your other hand and hold in a certain way, basically the recoil from the shot will push your hand forward and such that you don't have to keep pulling the trigger, right?
Will: Well, sort of, yeah. It bounces the gun back and forth onto your finger.
Dan: Yeah.
Will: So, it essentially pushes the trigger on you. Okay. So, I think this is a pretty simple case. The federal law defines a machine gun as one that can “shoot automatically more than one shot by a single function of the trigger.” The way bump stock works is it lets you shoot a bunch of shots really fast, just like a machine gun, by bouncing the trigger back and forth under your finger repeatedly.
Dan: Yeah, so you're not lifting your finger up, pushing it back, lifting it up, pushing it back, which would be a semiautomatic weapon.
Will: Right. So, you could argue it's not a single function of your finger. Your finger is remaining stationary, but the trigger is being triggered the normal way every time. It's just the gun is moving-- [crosstalk].
Dan: There's a more complicated sequence.
Will: Well, it's not even that much more complicated. It's just the gun is repeatedly moving onto your finger rather than your finger repeatedly moving onto the gun. And because of recoil, the gun can move a lot faster than your finger. But it's not a single function of the trigger. It's a single function of your finger, arguably.
Dan: What do you interpret that text to mean, single function of the trigger?
Will: Squeeze the trigger-- with a machine gun, you squeeze the trigger and hold it down.
Dan: Yeah, but why is that a function of the trigger and not what your finger is doing?
Will: Well, okay. If the trigger moves once, then the gun fires a bunch of times. That's a machine gun. If you have to move the trigger every time to fire the gun, then it's not a machine gun.
Dan: Yeah, but this isn't that exactly. Something in between those two things.
Will: Well, the trigger has to do that-- [crosstalk]
Dan: Everything is moving all the time, where the earth is spinning in space.
Will: Single function of the trigger. But the function, the trigger functions by moving in a particular way and firing the bullet, that part of the gun is totally unchanged.
Dan: Do you think that-- unfortunately, maybe this is not useful because neither of us has deep knowledge of guns. But what if you had a trigger, just a semiautomatic weapon, and you had a trigger that worked normally, but then you had a device that pulled the trigger back and forth for you electronically?
Will: Yeah.
Dan: Would that be a single function of the trigger at that point, or would we have to get that through some other definition, in your view?
Will: So, this case was argued by Jonathan Mitchell. I don't think we can call him a friend of the show exactly, but an important figure in the show, a friend of mine. And he said, in response to those kinds of hypos, and the court says maybe, those might be different. But in a way, the question there is, what is the trigger? Is the new button-- If it's the case there's one button you're pulling, is that now the trigger? If we redesigned your gun so the old trigger is not the trigger, and this new thing is the trigger, but nothing like that is going on with the bump stock case.
So, there are these other things, the Akins Accelerator, a weird hack with a fishing rod, and a bunch of other things in various lower courts cases that are all closer to the line because in part, what even is the trigger is part of the question. But none of those is true to the bump stock.
Now, I do think there's no good reason not to ban bump stocks. Somebody, Jake Charles, new firearms law professor at Pepperdine, I think, was posting some of the legislative history of the 1934 Act. And the definition they have here is something they came up with on the fly as it was proposed by the head of the NRA. And the members of Congress are just like, “I don't know. Is that a good definition? Does that cover all the things that those organized criminals are using?”
So, there's no good reason not to amend the definition and include bump stocks. Maybe to define things by rate of fire instead. I think the original definition was going to be based on the rate of fire. And so, you could say if the substantive concern is just firing a lot of bullets really fast, maybe we should just regulate that. But it's a 1934 statute. It's not a total surprise that it doesn't totally address the problems of 2024.
Dan: And so, say more about why you think the court is so divided. You think that the conservatives, in your view, are just doing principled textualism and the liberals are just being overcome by their desire to strip people of their firearms.
Will: No, that would be one view. I think you could see this as in some ways the standard wooden textualism versus some meta-purposivism debate. I think the majority is basically like, “Look, this is what the statute says. It might not even be a particularly good idea. It's just what the statute says. And it's not our job to update the statute.” And a lot of the dissent is like, “But functionally, this is basically the same thing. So, as a matter of common sense, why can't we read it this way?” And those are just two classic camps in statutory interpretation that have often been polarized this way. We often see the wooden textualism as the right-wing view and the more functional non-textualism is left-wing view. So, people could just be falling into those camps.
Now, as recently as Pulsifer, I think we saw some Justices in different camps on this issue, at least some of them but I do think it's kind of that normal divide. This is even striking an argument is that Jonathan Mitchell barely tried to come up with any policy arguments for why this statute should be read this way. There is a disability rights bump stock thing, that like a bump stock works better for people with arthritic hands and stuff like that who can't squeeze the trigger as easily. But there's not a serious argument that the bump stocks are a great idea for some important civilian purpose. But I do think the court-- yeah.
Dan: Yeah, I was just going to say, here's a tweet I saw that said that claims that the cases about statutory text are bad faith. “The statute is clear. There's no loophole. Republicans on SCOTUS simply refuse to apply the law because they want to legalize bullet hoses. They want to increase the body count for mass shootings.” Agree?
Will: No, I think that's false.
Dan: I also think that's false. And I think this is a trap that social media encourages and that I see way too many people on the left and on the right engage in, which is this tendency to think of your ideological opponents as these mustachio-twirling supervillains who actively cackle, evil. As a theory of human psychology, I don't think that's the way things work. I think that most people are proceeding on their own normative premises. Often, those are quite different, but those are also going to be driving other things, driving empirics. But I do not think there is a single Justice on the court who actually goes to bed at night saying, “I really hope we can get that body count for mass shootings to go up.” I don't believe that. And I don't think-- I'm not even sure that anyone could claim such a thing in good faith.
Will: And notably, a friend of the show, Justice Alito, drops a concurrence, saying the shooting spree in Las Vegas in 2017 that inspired the regulation was horrible. There's no functional reason not to ban bump stocks, but the statutory text is clear, we must follow it. But now that we've made this clear, hopefully Congress can act and amend the law.
Dan: Yeah, and this was pilloried online because, of course, basically, the premise being that's an absurd thing to say because Congress can't do anything. Which is sort of true, Congress has not been able to do anything on guns for a very long time. And this is sort of what happened here. Like, there was this big political impulse to do something, and the executive branch just made its own effort to deal with it by reinterpreting the statute. And it does seem like it was relevant here that this was a change interpretation from what the ATF had previously said.
Will: Yeah, I think that's right.
Dan: Nobody says that's dispositive of the legal issue, but atmospherically, that seems to be something that people are paying attention to.
Will: I have one other thought about the polarization, actually, which is like, there is a way in which I think being a gun person causes you to see this case a little differently. I say this as somebody who's not a gun person but is maybe gun adjacent. [Dan laughs] If you follow-- crosstalk].
Dan: Adjacent, likea switchblade? Does that mean you are a switchblade guy?
Will: No, it means I have friends with guns.
Dan: Okay. Is that a threat? Are you threatening me?
Will: No. What would you have to fear, Dan?
Dan: I don't know. It depends when you deploy that. If next time I disagree with you, you remind me that you were friends with guns, I'll back off.
Will: If you were following the ATF action in 2017, so you were up on the bump stock controversy, you knew that the ATF had thought about this and repeatedly concluded bump stocks were not machine guns, and then suddenly there's this one event in the news and a bunch of outcry and then the ATF changes its mind, you already interpret that as like, “Oh, here we are letting the immediate politics of the day run away from the law.” Whereas you've never really thought about this until you hear a case about it four years later and you aren't really following it, you're like, “Okay, so I guess it was one thing, and that was another thing and wasn’t related to that shooting,” you may not come at it with the same skepticism.
And also, if you know a lot about guns, you hear these definitions and immediately start thinking about guns and how they work and all the different kinds of devices, and you have categories in your mind, and the whole thing would seem a lot clearer. Whereas if you don't think a lot about guns other than they kill people in overly large numbers, when this is a thing that kills people in overly large numbers, it's probably in the bad category. It's easier to see ambiguity, in a way, if you find it kind of creepy to be steeped in the technical details.
Dan: Yeah. Speaking of ambiguity, there's no mention of Chevron in here at all. And that's presumably because this is a criminal prohibition that's interpreted by the Department of Justice, which is not the kind of thing we would normally give Chevron deference to putting aside what's going to happen later in the term.
Will: It's interpreted by ATF.
Dan: That's part of DOJ, right?
Will: Are they?
Dan: I thought so.
Will: Okay. I remember they got moved around, like they used to be in Treasury.
Dan: The Department of--
Will: But maybe they--
Dan: Homeland Security. Yeah, no, it's within DOJ in Wikipedia.
Will: I believe you. I think they were part of the Treasury once upon a time, and then-- [crosstalk].
Dan: Secret service is part of the treasury, right?
Will: Yeah. I think so. [crosstalk]
Dan: They were maybe they're part of DHS now. I don't really know.
Will: Anyway. Yeah. It is weird to give Chevron deference, although it is a prospective only rule, I think they're not prosecuting anybody who had a bump stock before the rule came into effect. There are some interesting questions about whether you could apply something like Chevron here but, of course, that would require Chevron.
Dan: What was the rule about how you interpret statutes that can have both civil and penal implications?
Will: So, there's a rule-- Yeah, for a statute that has both civil and criminal provisions, there's some cases that say you apply the rule of lenity to both because the statute has to have the same meaning, and then it has to have the lenity meaning on the criminal side, so it must carry over to the civil side.
Dan: And that's sort of the-- Lenity is the opposite of Chevron difference, basically. Chevron difference is, if you can read it both ways, go with what the government wants. Lenity is, if you can read it both ways, protect the defendant.
Will: Yes. But then there are cases like involving securities fraud, where the prosecutions are in part on the basis of SEC regs as part of the underlying ingredient of the crime, and we still apply the regs without worrying about it too much. I don't know if that's super clear how to disentangle all though.
Dan: Okay. Do you think that in a world where Chevron was presumably not about to be overruled, that we would have seen engagement with that? Or, does it just not make sense here?
Will: I just think in some ways, the statutory text is relatively clear, and if you don't think it's clear, if you thought it was ambiguous enough to justify Chevron, you might think it's ambiguous enough to use purpose anyway in order to get to this sense point of view. So, I don't know that this is a place where Chevron's going to do any additional work.
Dan: Okay. Yeah, I don't know. I don't really have a ton more to say about this one, other than I regret that it produced this part as a divide. I regret that it produces a policy result that seems extremely bad to me. And I don't really want to spend the whole episode trying to debate the specifics of the statutory text. So--
Will: I regret those things too for the record.
Dan: Okay. All right, so that's the one that's gotten the most attention, and maybe, hopefully, the one we're going to have the least to say about. I think that one got the most attention the last couple weeks. The next one we should talk about is FDA v. Alliance for Hippocratic Medicine, but I keep putting it in my notes, [laughs] and I keep accidentally thinking of it as alliance for theocratic medicine, which is not intentional. But you could say--[crosstalk]
Will: I thought you were going to say hypocritical medicine.
Dan: I don't think it's particularly-- no. But, so, we have an opinion by Justice Kavanaugh here, and this is a case that had been-- Do you think it's one of the most anticipated of the term? Medium anticipated?
Will: Medium. This case had already gone to the court once in the shadow docket. So, I feel like certainly there's been a lot of attention to this case because it originated with a nationwide injunction in all but name by Judge Kacsmaryk in Amarillo, Texas, one of the more powerful Judges in the country who had essentially ordered Mifepristone entirely, unapproved by the FDA. And then went to the Fifth Circuit, which split some things up, and then went to the Supreme Court, which then ordered a stay of the whole operation. And that all happened on a tight timeframe with a lot of attention and analysis. So, I think they've been a lot of attention to it for a while. And then the case, goes back to the court.
And because it is one of the two cases of the court this term, I think, this is just very interesting, which are about abortion but not about Dobbs. The Court also has this case about preemption under EMTALA, the emergency room federal funding statute, about how that intersects with state abortion law, which we'll talk about when it comes out. And this case is about standing at administrative law for mifepristone, the abortion pill. Again, Cargill, I guess this has in form nothing to do with Dobbs, and yet many people's feelings about it seem to be powerfully influenced by Dobbs. Not the courts, luckily.
But the basic question is whether a large group of doctors or a small group of doctors who do not take and do not prescribe mifepristone can challenge all the ways in which the FDA has approved it on the theory that leads them to be harmed because they might later encounter or have to treat women who are experiencing complications from the drug.
Dan: And the court is going to say no.
Will: No, that's not how standing works.
Dan: No standing. Okay, walk me through that. This is a legit unanimous opinion. Just one concurrence by Justice Thomas, but he joins the full opinion. So, a legit unanimous opinion in an abortion case.
Will: Yep, a legit unanimous opinion. So, the court lays the general background principles of standing, which at this point everybody-- the court accepts that to have standing, you need to have an injury and that you also need to have to show that your injury is sufficiently causally connected to the person you're suing and will be redressed by the relief you seek. And the court also notes that in general, it's pretty easy for people who are regulated parties to make this kind of claim. Like, “Here's a new law that will stop me from doing something I want to do,” it's very easy to have standing. But, “Here's a new law that lets other people do this thing that I don't like, the court says much harder to have standing. Not impossible, but that's the danger zone. And these plaintiffs are in the danger zone. They are not people who, being directly regulated by this. They're just upset about the consequences that the lack of regulation on other people's doctors will have for them downstream when they have to treat people.
Dan: Yeah. And it does not say that a third party can never have standing to challenge the government's decision to regulate or not regulate some other person. But just that here, it's that there's not sufficiently enough of an injury and causation and redressability.
Will: Right, right. It's not that it's impossible, but the court demands sort of a clearer story and a clearer link. And basically, the court just says there's just a very speculative, not a clear enough link here. The theory of the claim is women who take mifepristone under the new protocols, we don't have to go to the details about them, are, A, more likely to suffer complications because allegedly, mifepristone has a lot of side effects that need to be regulated. It's not clear any of this is true. This is all at the motion dismiss stage, but that's theory. And are more likely to not have doctors of their own because the FDA has made it easier to get it prescribed by telemedicine and by various other people and so on.
And so, as a consequence of those two changes, you're more likely to have women coming and seeking emergency care for complications from mifepristone. And if one of those people is one of the plaintiffs, they might be in the position of having to help perform an abortion to take care of the complications or of having to take away time and energy from whatever else they were doing to deal with this.
Dan: Yeah. And the court says not enough. And part of the reason is this provision of federal law known as the church amendments, which allows doctors or other healthcare personnel to refuse to perform or assist an abortion without punishment or discrimination from their employers.
Will: Right. As a matter of federal law, it's not the case, they say that you're going to be forced to perform the abortion or participate in it. There's still this idea of, well, maybe the doctors are going to be distracted from their other care or have to spend resources to deal with this, even apart from the church amendment. And then here the court says “The chain of causation is simply too attenuated.” And part of what they're just concerned about is how far this would go. “If we were to accept this logic, then suppose the EPA rolls back emission standards for power plants. Does the doctor have standing to sue because she may need to spend more time treating asthma patients? A local school district starts a middle school football league, does a pediatrician has standing to challenge its constitutionality because she might need to spend more time treating concussions? The government repeals certain restrictions on guns. Does a surgeon have standing to sue because he might have to operate on more gunshot victims? The answer is no. This would be an unprecedented and limitless approach and would allow doctors to sue in federal court to challenge almost any policy affecting public health.”
Dan: And that seemed plausible to me.
Will: Yeah.
Dan: What about their alleged monetary and related injuries?
Will: That is their alleged monetary and related injuries.
Dan: Okay, well, no, sorry. That was the conscience. There's the conscience injuries and then there's monetary-related injuries.
Will: Yes. Conscience is the church amendment. Monetary is the speculative.
Dan: Okay. Yeah, sorry, sorry.
Will: And then, there's this third theory that's the most obscure, but there is this case called Havens Realty v. Coleman that sometimes has been read for the proposition that organizations can sue because they now have to spend more energy on this issue and it distracts them from the rest of their mission. And the court says, “We've never really extended that beyond the Havens case, and we're not really going to do that now.”
Dan: And that case came up earlier this term, right?
Will: Yes. That's also the case that upholds the Constitution, the standing of testers, people who don't necessarily want to use the housing or whatever their service but go seek it out and then get discriminated against and then sue. And the court again signaled in Acheson, which ended up not reaching the standing issue, that it's not that interested in that either.
This is a pretty straightforward standing case. The question I think was, is the court going to loosen standing now that the conservative, corrupt, theocratic evil majority is in charge, and they don't need standing doctrine anymore, and they can start doing lots of really exciting stuff? And I think that was sort of theory of the challenge, to be honest. And the answer is, not today, anyway.
Dan: Yeah, so far, no. I did see some people pushing back on the decision and claiming that the way it interpreted the church amendment was overly expansive and was going to kind of move the law. I was a little skeptical, given that there was no pushback from the liberal Justices on that. But I don't have a super informed view about it.
Will: I don't either. I'm not sure that even that part of the decision is totally necessary for the court to get there, given how speculative they think the whole thing is. But I do think in some sense, the court might just unanimously agree that having a pretty broad understanding of individual conscience is going to be a sensible thing right now and not obviously inconsistent with the law. There is also this interesting concurrence by Justice Thomas.
Dan: Yeah, this is the main thing worth talking about for us, I think.
Will: Yeah. Which is the most interesting, because it takes aim generally at this doctrine called associational standing, which is interesting. There's a forthcoming law review article by Michael Morley and Andrew Hessick that was presented at a standing conference I ran last year that takes a very similar position although, unfortunately, Justice Thomas, I don't think, cites it, but they seem to be on the same page. Which is that the current doctrine is when a group like the Alliance for Hippocratic Medicine-- [crosstalk].
Dan: He cites Andy Hessick amicus brief though.
Will: Oh, that's good. Yeah. Or the Students for Fair Admissions, or the Sierra Club, when they sue, the current doctrine is that entity can sue as long as one of its members could sue. So, it's just like a passthrough, which makes sense. All right, if some member of the Sierra Club could sue, and the Sierra Club is here suing, then it seems fine. But Justice Thomas points out that this leads to a lot of weird potential end runs around other aspects of doctrine.
First of all, as a technical matter, that means we've got a weird form of third party standing where we're letting one entity sue on behalf of another. As a matter of remedies, you can end up with some weird effects, because the judgment will run in favor of the Alliance for Hippocratic Medicine rather than in favor of doctor whoever, which can have potentially a much broader effect, like, if you get a settlement with the Alliance of Hippocratic Medicine, that's going to benefit a lot more people than just doctor whoever, it's sort of a de facto class action without going through the class action standards.
And then, I don't think Justice Thomas mentions this, but it's also sort of an end run around the rules about anonymity in litigation. It's very hard to bring civil litigation not in your own name. But if you bring it in the name of the Students for Fair Admissions or some other group, then you could potentially bring the claim without having to out yourself, or at least not out yourself quite as openly.
Dan: And that's potentially valuable. Right?
Will: Oh, very. Very.
Dan: Or not. Yeah. Or not, depending on your views.
Will: Right. So, Justice Thomas says, “You know, maybe this whole thing doesn't really make any sense.”
Dan: What do you think about that?
Will: I think it’s clear.
Dan: And so, basically, the NAACP would never have standing unless itself is being threatened, because that's where some of these things come from, right?
Will: I do think it originates in the NAACP. I don't know if we have to say never, but we might want something like the class action standard, like when should we allow a group to litigate instead of a single person. Right now, the class action doctrine does our work in answering those kinds of questions. It might be that there are lots of entities that would pass that test where we'd say it makes sense to use a group.
Dan: Is the main reason that this matters is because of the preclusion questions? Otherwise, is it just about whose name is in the caption?
Will: I think it matters for mootness. I think one of the reasons you see these in student cases is because if you have an individual student, and then the case takes a couple years, and then they are no longer eligible, you have a problem.
Dan: But you would still need to have somebody-- [crosstalk]
Will: They’ve got people coming and going. So, if the Students for Fair Admissions at any given time has somebody who has standing, but it changes over time, that's fine, because there's one identity. But normally, if you want to do that with individuals, you have to use a class action to get around those mootness problems.
I did think about taking advantage of this judgment thing when I was trying to figure out how to perform a marriage despite not being a religious official. There's a group, the Humanist Association, that successfully sued in several states and won the right to have its members perform marriages despite being not religious officials. And so, you can pay for membership in the Humanist Association. And then, you get the benefit of the judgment, and you can solemnize marriages even if you weren't a member of the Humanist Association at the time the suits were brought and don't want to bring your own suit.
Dan: Did you do it?
Will: No. My brother found somebody else.
Dan: [laughs] You got fired?
Will: It was a lovely wedding.
Dan: Maybe you released the draft of your proposed vows, and it didn't go over well. Lots of references to jurisdiction.
Will: I did actually perform brother-in-law's wedding. Not the legal portion, but the ceremonial portion. Did a Miss Manners reading.
Dan: Was it received well? Okay, yeah, Justice Thomas has this cryptic cite to Students for Fair Admissions at the end of his opinion. “If no party challenges or associational standing doctrine today, that is understandable. The court consistently applies the doctrine discussing only the finer points of its operation.” And he gives that case as an example. And this would mean that the court should have dismissed that case if he's right.
Will: Yes. There were some challenges to the standing of Students for Fair Admissions in that case, but Justice Thomas characterizes them as being “challenges about the finer points of the doctrine, not challenges to the doctrine wholesale.” But yes. If you're Ed Blum, you probably think, “I hope Justice Thomas doesn't get five votes for this too soon.”
Dan: Yeah. In this case, if one of the doctors had standing, I don't think the fact that this organization was suing would have a lot of practical consequences other than who was in the caption. Unless the doctor got fired in the middle of the case or something like that.
Will: Well, the lower courts, in finding standing, relied on the fact that it was an organization because the lower court's theory of standing was something like, sure, the chances that this scenario of the complications happening to any particular person is a little speculative and hard to prove. But if the association includes a ton of people, and if the allegation is this happens statistically some of the time, then it's not speculative to think it will happen to at least one person in the organization, even if we don't know who.
Dan: Could you get around that by saying the organization will promise to provide free legal representation for anybody who does this, for whom this happens? If they try to refuse to treat, and then they're sued, and they want to use the church act or something?
Will: I think that's what we call a self-inflicted injury.
Dan: Hmm. What if they offered it as an insurance service? They say, “As part of your membership, we will insure you against these risks.” Is that really self-inflicted injury?
Will: I think it would. So, in the early 19th century, it used to be regarded as sometimes okay to do what was called a wager of law. So, we could just do this more straightforwardly, like, “Dan, I'll bet you a dollar that mifepristone was illegally approved.” [Dan laughs] You say, “Done.” And then, I say, “Okay, I want my dollar,” and you say, “No.” And then to adjudicate our contract dispute, the court has to adjudicate the merits. But I think we don't let people do that anymore.
Dan: That's not really the same thing, is what I'm suggesting though.
Will: Well, it's just the purest form. You want to instead design a real economic [crosstalk].
Dan: No, I'm genuinely saying that let's imagine that was a service that they offered their members, which is, “We offer robust protection for conscience. As part of that robust protection, we provide legal representation to all of our members. You just have to pay $150 a year,” and so forth. And then, the government does something the next year that suddenly is going to dramatically increase the number of cases that they're going to have to intervene. That doesn't strike me as a self-inflicted injury as such.
Will: The organization decided to take on the risk.
Dan: But I mean, a regulation that inflicted harm on an insurance company, you wouldn't say there's no standing because they self-inflicted their harm by agreeing to be an insurance company, right?
Will: But I think we'd say if the insurance company agrees to insure against some risk and then the insurance company now wants to sue-- Let's just make sure this is right. So, I don't think my insurance company right now could sue-- I don't know. Suppose something happens, like my neighbors do something that makes my house more likely to be flooded or something, I don't think my insurance company can preemptively sue them.
Dan: Let's say that the EPA says that all composite shingles are illegal, and you have to just like use straw on your roof starting today, and this is going to dramatically increase the cost to insurer and, let's just stipulate, dramatically decrease profits for the insurance companies. You don't think they would have constitutional standing to challenge that?
Will: The insurance companies?
Dan: Yeah.
Will: I mean, the homeowners definitely would.
Dan: But why couldn't the insurance companies? So, basically an insurance company-- I don't really know where we're going down this path, but an insurance company would not ever have article three, standing to challenge a regulation that dramatically increased their costs directly?
Will: Well, indirectly.
Dan: Well, I mean, yeah.
Will: Yeah. I mean, I think that's right in general. I don't think that's a set of a form of third party standing. But in any case-- [crosstalk]
Dan: Doesn't seem like it's third party standing because it seems like they are, actually--
Will: But all I can say is, the easier question outside this rabbit hole, is if the first person wouldn't have standing, the insurance company doesn't have any more standing. So, that's the answer to the original conscience thing is. If the individual doctors would not have standing, then the association doesn't get standing just by doing it in bulk.
Dan: But that was already the case unless you could show a separate argument for why there is associational standing, right? Like, one of the paths was association has standing because one member has standing. And the other path is, can you show something specific to the association?
Will: Right. But, I mean, on this insurance mechanism. If you have a million members, all of whom have speculative injuries, you can't insure them collectively and then turn them into nonspeculative injuries.
Dan: Okay.
Will: In the same way that in Clapper, people who couldn't prove whether or not they were being surveilled by the NSA couldn't say, “Well, I spent some money on an encrypted phone. [laughs] I really spent, because I don't know whether I'm being surveilled by the NSA.” And the court said, “Well, if you can't prove you're being surveilled by the NSA, then you also can't turn that into a litigable grievance by buying an encrypted phone.”
Dan: That's a tougher case, I think, in some ways, precisely because the other party has the information that would be relevant, and they're being deprived of that information.
Will: Well, [unintelligible [01:11:48] certiorari. So, everything you might have been sad about in Cargill, this is a nice, unanimous endorsement of orthodox standing principles that are also common sense. Love to see it.
Dan: Yeah. Okay. We've already spent a lot of time talking about stuff. Spent too much time on ethics.
Will: We did. It's your fault.
Dan: Should we talk about something else?
Will: Yeah. Can we talk about Office of the US Trustee v. John Q Hammons?
Dan: Okay. Yeah. And then maybe we'll put off Vidal v. Elster, the trademark case, which I also spent a good amount of time with, and I think it's pretty interesting.
Will: I think we [unintelligible [01:12:22]
Dan: Yeah. Tell us about this one.
Will: Two years ago, the court had a case that I don't think we talked about on the show but I could be just forgetting.
Dan: I don't think so.
Will: Called Siegel v. Fitzgerald, which is about a violation of the uniformity clause of the bankruptcy clause of the Constitution. Not a clause, I confess-- Not a clause we teach in Con Law 1, I'm embarrassed to say.
Dan: Yet.
Will: I might have to add something on that, in which the court held that part of the bankruptcy statute where bankruptcy administration was unconstitutional because the fees charged for chapter 11 debtors differed depending on what district you were in based on some complicated decisions about how to set up the US trustee program. And it doesn't really matter. But the point is court said “In different districts, people were paying different fees for bankruptcy. That's unconstitutional because it's supposed to be uniform.”
Okay. Now, the question is what to do about that. And in particular the people who paid too much would like a refund. They would like to only pay as much money as the people in other districts paid, thus getting a remedy for the constitutional violation. And so, the court in this case asks, “Is that the remedy?” If had unconstitutionally dis-uniform fees, do you have a right to get them back? And very puzzlingly, to me they say no.
Dan: I found this one pretty puzzling too. And I don't really even understand the question the court was trying to answer here in the sense that the majority opinion by Justice Jackson, joined by the Chief, Alito, Sotomayor, Kagan and Kavanaugh treats this as primarily, maybe purely a question of statutory interpretation.
Will: Yeah.
Dan: Is that fair as to what's going on here?
Will: I think it's really interesting. Here's why they do that.
Dan: Because to be clear, this is a constitutional violation and we're talking about the remedy for constitutional violation.
Will: Yeah. So, there are these cases, which is not quite this case, where there are these cases where there's a statute that's unequal or there's something that's unequal. And the question the courts end up asking is whether to level up or level down or to grant the nice remedy or the mean remedy, as somebody once said.
Dan: Yeah. Like, in these cases of gender discrimination between wed/unwed parents, things like that.
Will: Yeah. We’ve got benefits to men and not women. So, what’s the-- And so in those cases, it’s sort of a severability question.
Dan: Yeah.
Will: Do you get rid of the, the good treatment or the bad treatment and severability is a question of congressional intent. So, in those cases, what the court often ends up doing is saying, “Okay, this is technically the question of congressional intent.” Now, they still usually apply a pretty strong thumb on the scale in favor of leveling up rather than leveling down, but they sometimes break it. And congressional intent is the reason. So, the court seems to be borrowing that line of cases-- I mean, this is the cases I cite here.
Dan: But in a way that makes no sense.
Will: Yeah. So, even though this is not a case of severability, I mean, maybe we can get there, but it's not really case of severability. Now the thing is, those severability cases are often a little confused and often talk about remedies because severability is sometimes described as a remedy though technically it's not a remedy. And here, it's like an actual remedies case. So, basically the court has this like faux remedies severability jurisprudence based on congressional intent that it's now applying in a real remedies case [chuckles] where it's not as obvious that congressional intent should govern.
Dan: Yeah, and it's also not even like those cases because it's not just like leveling up or leveling down. It's basically just like, do you get screwed or not for stuff that already happened?
Will: Well, right, because-- In a way that, it'd better if they said we're going to level down. It'd better if they said--
Dan: Wouldn’tthat mean everybody who paid less fees has to pay more? Isn't that how you would level down?
Will: Right. So, leveling down would be to say, actually everybody should have paid more. So, you got treated the right way and now we're going to go after the everybody who-- [crosstalk].
Dan: For like billions of dollars.
Will: Right. Now the court says, “Well, that's not really practical. We're not going to do that. We probably wouldn't get jurisdiction and they wouldn't pay.” So, you could read the court to be saying, “We get to choose with the level up or level down. We choose to level down. But by the way, we're not really going to really get the money out of those people anyway. So, basically, we're doing nothing.” But you could call that we'd like to level down, but it's impractical and leveling up is expensive. And so, our solution is to do nothing, which I think is the least coherent possible choice. But that's what the court picks.
The way the court describes it is sort of even more unsatisfying. The court just says we have three reasons. This is like page 6 or three aspects that we're holding are worth highlighting. This is their way of saying, “There's nothing to see here.” And one is, okay, the violation was non-uniformity, not high fees. That's the point that in theory, could solve this problem by leveling up or leveling down. Two, the fee disparity was short lived. It's a little violation. It lasted for at most three years and three months. Finally, the disparity was small. So, I read this to be saying, “You know, it's not a kind of constitutional violation we care about a lot. It didn't happen for a long time, and it's kind of small.”
Dan: Yeah. Just like, don't bother us so much about this.
Will: And yet it would cost hundreds of millions of dollars to fix, which sort of undermines the claim, short and small.
Dan: Yeah. And I mean, look, there clearly are practical problems. With bankruptcy, you're trying to unwind things, give refunds or collect more money from entities that don't exist anymore or super impractical. But I don't know.
Will: Yeah, I think that's less true here because these are the fees being collected by the US trustees. So, it's really just that the problem is that Congress didn't want to appropriate a lot of money to the system that was supposed to be self-funding. And it would not be self-funding if Congress would have to appropriate $300 million to pay the judgment or fly it out of the judgment fund or whatever.
Dan: But there's all sorts of other situations where we wouldn't look at that be, “Well, we've determined that the government took your property. However, the taking your property department was supposed to be self-funding, and so it would be inconsistent with congressional intent to pay you money for your house.”
Will: Indeed. Indeed. That is not normally what we do. So, then the other, in some ways, even weirder thing is there are these cases about the Constitution and remedies. There's famously the Bivens line of cases about whether sometimes right to damages remedy. We have Whole Woman’s Health v. Jackson about the right to a remedy that we spent a lot of time on a couple years ago. There are cases even specifically in the tax context, a bunch of which the court cites, saying that when the state unconstitutionally collects taxes, it has an obligation to pay them, to give the money back that are seen as one of the cornerstones of due process and that sort of thing. And the court also has to therefore wish away all those cases and distinguish them away.
Here's what I find puzzling is a lot of the Justices in the majority of this opinion seem like they would have been Justices who were sympathetic to the other side in, say, Whole Women’s Health v, Jackson or Hernandez v. Mesa or other constitutional remedies cases who would have said, “No, it's really important that the Constitution will provide a right of remedy for constitutional violations.” And some of the Justices on the dissenting side here are ones I remember being on the “too bad, so sad” side of those cases.
Dan: I agree. I think this is puzzling. Is it just because, like, this is-- [crosstalk]
Will: And the normal explanation--
Dan: --for big companies?
Will: Right. The normal explanation is okay, in an abortion case, everybody's one side, and in a bankruptcy uniformity case, I don't even know what the politics of that is.
Dan: Yeah. The divide is should we take this seriously, or should we just say this is stupid and not worry about it? But, I mean, you have the dissent from Justice Gorsuch, joined by Justices Thomas and Barrett. So, this clearly did seem to split the court in some ways, ideologically. I mean, Justice Barrett is, I'd say two of the three maybe-- is it fair to say three of the four most conservative members of the court? I guess it depends where we think Barrett lines up relative to Kavanaugh.
Will: I do think there's a way in which it's three of the most formalist members of the court are in dissent. Whatever you think about conservative or not, like Alito, Kavanaugh, Roberts are often seen as the more pragmatic of the Justices. So, it would be expensive. And it just seems like it's kind of a dumb thing. It seems to be their view. But I find this opinion totally unsatisfying.
Dan: I did not think this was a well-written opinion at all. I thought this was a very poor opinion.
Will: I ran this opinion by a colleague who's a bankruptcy expert, just to see if I was missing something. And I asked is there some special principle of bankruptcy law that makes this more logical and make more sense than it would make in other contexts. And his view is no, no. That this case was controlled by the “move along, move along, nothing to see here” principle. [laughs]
Dan: And yet, we still see it.
Will: Oh, we do.
Dan: Yeah. I mean, they're saving the government a bunch of money simplifying stuff. But, yeah, I thought this is a very poorly reasoned opinion, and I'm surprised it had so many people joining it.
Will: Yeah. I do wonder, is it the fact that it's in bankruptcy that just causes people's eyes to glaze over? I will confess, I was not following this opinion very closely until it came out and then read it. And then I said, “What the hell?”
Dan: Yeah. I mean, the bankruptcy case complicated because where's the money going, there's all sorts of different people involved, and it's not-- Sometimes you can, and sometimes you can't tell a story about a little guy getting screwed. It may just be that some shell company got less of a return on its investment on cheap debt or something.
Will: Right. I do wonder, is some of this also baked into the original decision in Siegel v. Fitzgerald that says this is a violation in the first place? So, that, I think, was a unanimous opinion by Justice Sotomayor issued in June 2022, when they had a lot of stuff going on. And I think the real issue had been flagged in that case, and the court just intentionally dodged it or put it to one side. So, you might think, I don't know, there might have been Justices who were willing to sign on to it was a violation only because they already knew that they weren't necessarily going to spend hundreds of millions of dollars on this decision. But I find that unsatisfying.
Dan: Yeah. And so, anything to say about Justice Gorsuch's dissent, kind of a robust sticking up for money damages, rather money remedies as remedy for constitutional wrongs. Although, as was already implicit in what you said, like that he's not somebody who believes that all the time, right?
Will: Right.
Dan: He doesn't believe in Bivens really, and things like that.
Will: I mean, he has this funny footnote about Bivens at the end of the opinion [chuckles] where he says, “The rest of us can only hope that the court corrects its mistake before it metastasizes too far beyond the bankruptcy context.” Footnote, “One might wonder as well, by declining to supply damages remedy for a constitutional violation, even when statutory law authorizes it, what is left of the mistaken notion that the constitution demands damages remedy for its violation, even the absence of statutory authority.” And then, he cites Justice Sotomayor's dissent in one of the Bivens cases. So, I mean, he's saying-- I'll just say the footnote would be tidier if he was a Bivens believer, but of course, he's not.
Dan: But I mean, he's saying he's not. He's just calling them out for hypocrisy. And he's saying, well, the difference here is that the damages remedy is authorized by statutory law. Although, I mean, does he really think that's the-- [crosstalk]
Will: The thread this rides on? Yeah.
Dan: Yeah. That can't really be right.
Will: I don't think so.
Dan: If the government unconstitutionally collects a tax, they can't just say, “Well, we're not going to give it back to you because we didn't pass a lawsuit.” We would, right?
Will: I mean, so actually the federal government probably can because they have sovereign immunity. So, they could unconstitutionally collect a tax and then refuse to do anything about it.
Dan: Yeah, that's fair.
Will: Now, I don't think this is a sovereign immunity case, but it's not so clear to me what the court thinks it's doing here other than they think it's a remedies case. And they think remedies is an area where apparently, they can just do whatever they feel like. That seems to be-- [crosstalk]
Dan: Yeah. That doesn't seem right to me.
Will: No. I think remedies is very confusing, but I don't think the principle should be the court can just do whatever it feels like.
Dan: Or that Congress gets to do whatever it wants, right?
Will: Right. Although at least when Congress does it, we can then figure out what boxes to put it in. Congress evokes sovereign immunity or strips jurisdiction or eliminates the cause of action or whatever, packs the Supreme Court with people who don't believe in remedies. Those are all in boxes we could then process in their own terms. But most of them are not limitless. They have rules.
Dan: But I guess here, the court is constructing this hypothetical inquiry that doesn't really seem to cabin it very much.
Will: The rule of, while it was a uniformity clause violation that only lasted for a few years and was kind of small, but still a total of $300 million, that's not a rule I'm aware of.
Dan: Yeah. Okay.
Will: Okay.
Dan: So, maybe we're going to skip the trademark case for now.
Will: Okay.
Dan: Maybe we'll get to that next time. Maybe we won't.
Will: I think we're going to want to talk about that in conjunction with Rahimi, although I know there's going to be a lot going on we get there.
Dan: Okay, because of history?
Will: I'll just say I've seen a lot of hot takes about Barrett v. Thomas, and I think it's just too soon to tell what's going on there. Until we see where they land in that tradition versus history fight.
Dan: Yeah.
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Will: It looked like we had a new shirt up. [crosstalk]
Dan: We haven't changed the shirts.
Will: Has there always been a shirt with the cover art?
Dan: Only for about three years. Yeah.
Will: Really?
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Will: Yeah.
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Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. And I'm going to make a suggestion that people should email Dan if they want us to move the ethics coverage to the end of the show rather than the beginning of the show so we can see if maybe that's what gets cut next time.
Dan: I think that's actually a good idea. Well, if there is a delay between this and our next episode, it's because we just kept arguing about ethics and never could actually start recording the next episode.
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