We announce the new Divided Argument blog! After discussing the blog and some listener feedback, we break down two recent 5-4 decisions -- the shadow docket fight over USAID funding in Department of State v. Aids Vaccine Advocacy Coalition and the Section 1983 exhaustion decision in Williams v. Reed (or should we say Rev. Stat. 1979?).
We announce the new Divided Argument blog! After discussing the blog and some listener feedback, we break down two recent 5-4 decisions -- the shadow docket fight over USAID funding in Department of State v. Aids Vaccine Advocacy Coalition and the Section 1983 exhaustion decision in Williams v. Reed (or should we say Rev. Stat. 1979?).
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, Will, we had a fun few days. I was visiting Chicago with my four kids and Danielle, and it was great. You invited us over for dinner.
Will: Yeah, it was great.
Dan: Just two nights ago, our kids got to hang out. There was a lot of testing each other out with quizzes about Pokémon. It seems like my kids passed your son's test.
Will: My son now wants to come to St. Louis largely because he believes there are Pokémon cards in your house that he has not-- [crosstalk]
Dan: There are many.
Will: Yeah.
Dan: But I could tell he was asking some trick questions. He was like, “Oh, do you have all of Eevee's evolutions?” And it turns out Eevee has many evolutions, but my oldest claimed that he, at least at one point he had all of Eevee's evolutions. So, it seems to have worked out. So that was fun. It's always good to get a chance to see you in person to keep the podcast chemistry going.
Will: Some people think we have better chemistry online, Dan.
Dan: Well, I think it's not a fair comparison because the studio episodes are edited.
Will: Yeah.
Dan: And if we screw something up that gets taken out and they clean up a little bit of the ums here and there, they don't get all of them, but tighten up the language. So, I think it's not a fair comparison.
Will: I agree.
Dan: So that was fun. We thought we would sneak in a relatively quick episode. Before we get into the meat of the episode. Maybe we should tell people about our new venture. New little side project.
Will: We have a blog.
Dan: Yeah.
Will: blog.dividedargument.com.
Dan: Yes, it is a blog. We are calling it a blog, although it is, I guess, a Substack. It is also a newsletter. I feel like blogs died and they got taken over by Substack. But really, it's the same thing. This is a venue where that is going to be under the Divided Argument brand. We are going to write medium form pieces about the law. And we have invited a robust stable of people to join us, most of whom have not contributed yet. But Sam Bray has posted a couple of stories. So far, I think we've maybe had five or six posts on there so far during our soft launch.
Will: Yep.
Dan: But I'm expecting there to be more.
Will: Yep. Also, it makes it more blog like, but unlike many Substacks, it's free.
Dan: Yes.
Will: This podcast, it's not something you have to pay for to subscribe to, so you can just choose to read it on the website. You can choose to get the post sent to your inbox at some point. I will figure out how to make the posts appear on social media.
Dan: Yeah. The only thing that really makes it not a blog is that every time you go to the website, it gives you the prompt to put in your email, which you can just dismiss. There's not a way to turn that off, as far as I can tell.
Will: I think that's right. And also, the posts are sort of laid out with just the headline and the first sentence of each thing. So, the other thing that makes it not like a blog is or slightly different from a canonical blog, like my erstwhile blogging called The Volokh conspiracy, is there isn't just a page that has all the text in a row. There's a page where it has each post like the headline, the author, and the first sentence of the post to click on. But that's a minor formatting blip. And we'll see. Hopefully this blog thing takes off.
Dan: Yeah. And so, we're hoping it'll be a place to come for medium temperature takes on stuff the court is doing, but other stuff going on in law. I don't know if you're planning on doing any Star Wars posting on there as you once did.
Will: [laughs] Maybe a little. I definitely have already been posting, articles that I thought were worth paying attention to and other more not Supreme Court related, but just legal scholarship, legal thinking related.
Dan: And you reposted anonymous open letter to Professors Barnett and Wurman responding to their op-ed about birthright citizenship.
Will: Yes. I mean, I don't know if it was-- I guess it's an open letter now that I reposted it, but it was something I had--
Dan: It wasn't a closed letter.
Will: It's something I'd come across and thought was really should be public. And even though I haven't had the time to sit down and write out all my own thoughts on this issue, I posted it. I hope that was okay. I didn't run it by you first.
Dan: No. I don't need preclearance. So, yeah, we've already got, I'd say we already have hundreds of people who have subscribed, but we would like to get that into the four digits at a minimum. And we will keep posting and the more people who subscribe, there will be a virtuous circle that causes us to want to post more. So, check it out.
Will: Yep. Can I clean up something from last episode?
Dan: Sure. Did you do something wrong?
Will: Well, not since you and I both forgot that Justice Brandeis was from Kentucky have I gotten in so much trouble with a state. [chuckles] So, I think I maybe said some not entirely universally positive things about Oklahoma, and Oklahoma City in particular, for which I'd like to apologize to the good people of Oklahoma City, especially a friend of the show, Jeremy Telman, who blogs at the ContractsProfs Blog and has a lot of interesting stuff and often actually interesting contracts, connections, things we talk about in our episode. So, he suggested maybe I need to give Oklahoma City a better chance. Several people wrote in to complain that I had neglected the importance of the Oklahoma City Thunder, which many people believe is one of the best basketball teams playing the game the way it's supposed to be played.
In my defense, when I clerked and spent time in Oklahoma City, the Thunder were still the SuperSonics in Seattle. So, I mean, I failed the update. The other interesting thing I learned is that the dean of the Oklahoma City Law School. Do you know this? Do you know who the dean is?
Dan: No.
Will: The mayor of Oklahoma City.
Dan: Simultaneously holding both jobs?
Will: Yeah.
Dan: Full time? They both sound like full time jobs.
Will: I mean, as far as I know. I mean, I don't know. My understanding is the city and the school are both run pretty well, but it's not like ex-officio. It's just that, at least according to Wikipedia, the mayor just entered the dean search and then won.
Dan: Didn't resign from being mayor?
Will: Not yet.
Dan: Okay, that seems weird to me. That seems like you can do one, but not both of those jobs effectively at the same time.
Will: Well, I think the good, the upside of this is that if I can figure out a way to get invited for a big lecture at Oklahoma City Law School, then I could also maybe get Thunder tickets.
Dan: I didn't think you were a huge basketball fan.
Will: I like basketball. I grew up Indiana. Now, in my view, college basketball is the more pure form of the sport.
Dan: Yeah, March Madness is coming up. My alma mater, Duke, ranked number one at the end of the season. First time in several years that has happened. So that's exciting.
Will: Yeah.
Dan: I thought about your hometown and your home state recently. You didn't respond to it, but I texted you this Instagram Reel going into a lot more detail about the linguistic status of the word Hoosier in St. Louis. If you recall that episode from a couple seasons ago.
Will: I remember that episode. I don't totally understand how to read Instagram.
Dan: Okay, you have to click the link. It did reveal that this is something that actually has been the subject of scholarship. There are linguists have studied the St. Louis meaning of Hoosier. There's an article by linguist named Daniel Duncan who wrote a piece about this. So, it wasn't just me making it up.
Will: I did wonder. But, okay. One other thing from the last episode in our discussion of Glossip, I think we talked about this like question of the Supreme Court remanding or not letting the Oklahoma Court of Criminal Appeals have the case for another do over and instead just ordering a trial. We talked about s federalism on appellate remedies and some of the history there. And I was reminded of an article by Aaron-Andrew P. Bruhl, The Remand Power and the Supreme Court's Role goes into the history of the statutes and why the Supreme Court has now come to have such a broad and discretionary remand power. It's a very interesting article that goes into a lot of the weeds I was trying to remember whether I ever knew.
Dan: Okay, I'll have to pull that sometime that sounds really interesting.
Will: Yeah.
Dan: Just looking at our inbox, a couple other pieces of follow up: Friend of the show Professor Tommy Bennett wrote in to provide a little bit more color when we were talking at Northwestern episode about in-chambers oral arguments. And he told us that actually there was an oral argument, an in-chambers oral argument on an application for stay by the railroad in Erie Railroad v. Tompkins, that incredibly famous civil procedure case. And that was held in Justice Cardozo's lovely old Victorian house. And this is from a New York law journal article that says a summer wind gently swayed the curtains as we waited downstairs. This is the advocate telling the story.
Justice Cardozo entered the room in a black velvet jacket, white handkerchief in hand, wispy gray hair, the satiny skin on his long face bespeaking his age and ill health. So that sounds like a cool little episode. And I wish stuff like that happened today.
Will: You wish the Justices had arguments in their house.
Dan: Yeah. It just seems cool. Seems kind of cinematic.
Will: That's true. I don't think they want people to know where they live anymore.
Dan: No, probably not. But they could do it somewhere else.
Will: Yeah.
Dan: I don't know. Just makes it interesting, I guess they would just do them on Zoom.
Will: Yeah, or the phone.
Dan: Yeah. Do you ever remember the Flushgate thing?
Will: Flushgate?
Dan: The early phone arguments during COVID and-- [crosstalk]
Will: Oh, Justice Breyer?
Dan: Justice Breyer like to clearly flushed the toilet.
Will: [crosstalk] Justice Breyer's house did.
Dan: Yeah.
Will: Yes. I totally forgot about that honestly.
Dan: I feel like we don't think about that enough.
Will: Well, it's the five-year anniversary of the onset of the pandemic lockdowns, right?
Dan: Yeah. That's crazy.
Will: So, I'm sure we'll be getting lots of retrospectives about that for those of us who-- [crosstalk]
Dan: Which means we've been doing this show for like four years. Is that right? Didn't we start in 2021?
Will: I think so.
Dan: Wow, that's a long time. A lot of episodes. We haven't hit 100 episodes yet, but we're slowly inching our way there. We're in the mini dozens of episodes.
Will: We should do a thing for our hundredth episode.
Dan: Yeah. You could have a big conference sponsored by the University of Chicago Con Law Institute.
Will: A conference about the show.
Dan: [laughs] Maybe. Why not?
Will: Sure.
Dan: It looks like we have maybe 86 episodes, looking to my archive. So, we will possibly hit that. This is 87. I think we'll probably hit that this season, depending on what happens with the rest of the term.
Will: Yeah.
Dan: Okay. What else to talk about? We got an email. We don't have anything conclusive to say about this. We got an email from another listener, Mason Gonsisko, who asked us about “What is the rule for how many Justices need to call for the view of the Solicitor General? What is the voting threshold for a CVSG?” as we call them. And you had actually read a little bit about this and the answer is we're not sure.
Will: Yeah. So, it's funny, I used to wonder, is it the rule of 4, or is it 5. Like it's a [crosstalk] disposition.
Dan: True majority.
Will: Yeah, true majority. Maybe it's like a stay where it takes five, but everybody understands that if they're four, there should be a courtesy fifth or something. But yeah, there's a little bit of a funny literature about this. So, in 2008, possibly while I was clerking, I can't remember, there was a dissent from the denial of a stay by Justice Breyer in Medellin v. Texas, who had previously lost a case in the Supreme Court about--[crosstalk]
Dan: Was this before the merits decision in Medellin or was this--[crosstalk]
Will: After.
Dan: After, okay.
Will: So, after the merits decision after the Supreme Court holds that the relevant treaties, are not self-executing and so Texas is entitled to execute somebody without worrying about whether they're violating the treaty or the ICJ decision. After that, there was an attempt for another stay. And I think at the time there was some possibility that Congress would adopt legislation that might address this since there were various questions about how to think about the pending legislation. And then Justice Breyer argued for a stay. And I think four of the Justices wanted to call for the views of the Solicitor General, in part because you had pending legislation. And the SG might say, “Look, the executive branch needs more time to negotiate the bill or something.” But the court did not grant the stay.
But in the course of that, Justice Breyer said, “Look, we have four votes to CVSG. That's the number required. Before that in a student note in the Indiana Law Journal by a Hoosier discussing the role of the SG, that student says, “It takes three votes to SG citing a letter from Chief Justice Rehnquist to the author, which I assume--[crosstalk]
Dan: Do we have the letter or just the citation to the letter?
Will: I do not have the letter. I haven't looked very hard for the letter. Law review citation practices being what they are. I assume that that claim was cite checked by somebody else at the Indiana Law Journal who saw the letter. It doesn't say on file with the Law Journal. And I haven't tried to track down the author and see if he still has the letter. The letter purports to describe the internal operating, like a document, the internal operating procedures of the Supreme Court. So, letter purports to be not just Rehnquist like popping off, but actually describing a rule. If that's accurate, then sometime between 1990 and 2008, it's possible the number changed from three to four. Some people wonder if the number was always really four. But there was a courtesy fourth norm that if there were three about CVSG, somebody else would join. So, we think it's four.
Dan: You had spent a lot of time thinking about this.
Will: Yeah. How can you not?
Dan: Well, I mean, it's interesting that just hadn't come up for me. What provoked you to dig into this so deeply?
Will: Now I don't remember what provoked me dig into it so deeply. I don't even remember if it was something I wondered about when I was clicking or after or when I wrote the shadow docket piece. I don't remember. Maybe when I wrote the shadow docket piece because when you start thinking about all the things, the basic things we don't know about how these things work, like which Justices are on which side.
Dan: So, it's weird that they won't just publish the internal handbook that answers some of these questions. There is an internal document.
Will: Yeah.
Dan: That has these procedures about votes and things like that.
Will: Yeah.
Dan: I don't know why that should be a secret document.
Will: Yeah. Every time you change it, then somebody's going to complain about it.
Dan: Yeah.
Will: No, I agree. It's interesting. There is the Supreme Court, style guide is published.
Dan: Yeah.
Will: But not by the Supreme Court-- by this guy.
Dan: Yeah.
Will: Who got a copy of it.
Dan: From the library, I think.
Will: Yeah. [laughs] And then just published it. I think he had his library privileges revoked for that, I think.
Dan: Oh, really?
Will: I thought so.
Dan: That's unfortunate. It should be a public document.
Will: They got mad at him anyway.
Dan: That's stupid.
Will: So, who knows? Maybe in the library there's still a copy of the operating procedure, [laughs] so you could just publish it-- [crosstalk]
Dan: But you can't go to the library.
Will: Do you have to be a Supreme Court member to go to the library?
Dan: Well, I think use of the library is a privilege of being a member of the Supreme Court bar. I cannot say that you would be barred from the library not being a member, but it certainly would pose some obstacles.
Will: Well, that's why I said you should go.
Dan: [laughs] Well, I don't want to get banned from the library.
Will: Well, if they ban you from the library, then I'll join the Supreme Court bar and go to library with that.
Dan: [laughs] I will go and sign in as you and get you preemptively banned.
Will: But it won't work because I'm not a member. So, they'll be like--[crosstalk]
Dan: I'll show my bar card to get in the door, and then when it's time to sign in, I'll sign in as you. No one will detect it till it's too late.
Will: Nobody will have any idea we're connected.
Dan: [chuckles] Okay. Anything else? Before we talk about actual Supreme Court work product.
Will: Let's talk about Supreme Court work product.
Dan: Okay, so we've got another shadow docket decision/nondecision. Another 5-4 do nothing as in the Dellinger case in Department of State v. AIDS Vaccine Advocacy Coalition.
Will: Yes. So, this is the next of the new Trump administration shadow docket decisions. We talked last episode about Bessent v. Dellinger, which is in the unitary executive line of shadow docket cases, and now this one is in the funding/DOGE line of cases. About the power of the executive branch to refuse to disburse appropriated money. And it's not quite a do-nothing order. So, the district court had issued a temporary restraining order against the executive branch. And the government asked for that temporary restraining order to be stayed and or reversed. And after the two Justices first entered an administrative stay for the court to think about it, they denied the application. So, they didn't hold it in abeyance. They actually denied it.
And then they said, “Given that the deadline in the challenged order has now passed and in light of the ongoing preliminary injunction proceedings, the district court should clarify what obligations the government must fulfill to ensure compliance the temporary restraining order with due regard for the feasibility of any compliance timelines.” So, denied but we're watching you, [Dan laughs] right?
Dan: Yeah. Pretty close to do nothing.
Will: Yeah. Well, denied is like one of the two main things when somebody--[crosstalk]
Dan: Well, okay, yeah. You're saying to deny something is a form of action.
Will: Right. Unlike the--[crosstalk]
Dan: Yeah. Fair. In light of the foregoing, we, nothing.
Will: Yeah. The dissent was we neither grant nor deny. [laughs]
Dan: Yeah, fair.
Will: Yes.
Dan: It does at least resolve the request.
Will: So, we're moving in the right direction. I mean now great that it resolves the request only after the request could not possibly be granted.
Dan: Yeah. And again, has another one of these sentences in light of that doesn't fully explain everything.
Will: Yes.
Dan: But, yeah, a little bit longer. I don't know how deep we want to get into the procedural posture. I mean the thing that was up at the court does not directly raise the question about the legality of what the administration is doing more broadly, it's about this specific TRO ordering the government to pay out a certain amount of money. And there's this question about whether it's appealable or not or whether it's a non-appealable TRO. So, it's a bit jurisdictionally complicated. Steve Vladeck has said a couple good posts on his own Substack, “One First,” about this breaking it down.
Will: And Sam Bray has had with Nick Bagley, a post on our Substack about this. It's one of our first posts.
Dan: Our first co-guest post.
Will: We’re a flexible format. I mean the merits in some ways are the thing the majority of the dissent spends the least amount of time on. There's a dissent by Justice Alito, joined by Thomas, Gorsuch and Kavanaugh. So, again, we're 5-4 doing not quite nothing, but doing very little for ambiguous reasons 5-4, and Justice Alito, he says, “Does a single district judge, who likely lacks jurisdiction, have the unchecked power to compel the government of the United States to pay out and probably lose forever two billion taxpayer dollars? The answer to that question should be an emphatic no, but a majority of this court apparently thinks otherwise. I am stunned.” I wasn't sure I'd ever heard, “I am stunned.” [crosstalk]
Dan: Yeah, it was a bold dissent.
Will: It does end with a respectfully dissent, though. Sometimes that's the workup to just, I dissent, but he's stunned, but respectful.
Dan: Yeah.
Will: And Justice Alito does flag several of these recurring procedural issues that are going to come up. I mean, this is not going to be the last of these kinds of cases. And so, one issue which we talked about already in the show, is the TRO appealable in light of the fact that it's not a final order and also not a preliminary injunction, which are the two things that the statute says can be appealed. And Justice Alito says, “This one functions like a preliminary injunction, so maybe it is appealable or it is appealable,” he concludes. And then he gets into some complicated issues about sovereign immunity to question whether the district court has jurisdiction here at all. And I don't know how far, how much patience our listeners have for all of it, but the federal government generally has sovereign immunity.
Dan: That means you can't go to court and say, “Government, United States, give me a bunch of money”?
Will: Right or maybe, you can't even go to court and say United States do anything unless the United States has waived its sovereign immunity. Now, the United States has waived its sovereign immunity in the APA for actions seeking relief other than money damages. And so, then part of the question in this case is, well, is this money damages? And the plaintiffs would say, “Well, it's money, but it's not damages.” It's not like they're saying, “You unlawfully detained us for a year and now you owe us money in compensation.” This is just money that they think they're owed under contracts and the law. There's another line of cases arising out of state sovereign immunity that tries to figure out, when does demanding money from the government count as damages for sovereign immunity purposes, and one doesn't it.
There's a case called Bowen where the Supreme Court holds that you can challenge the refusal to reimburse Medicaid expenditures going forward. That doesn't violate sovereign immunity and so on. Then there are a couple more cases. So, it's deep in the fed jur weeds. The things Justice Alito says, they're not obviously wrong, but at least to my Fed courts mind, they are complicated and also not obviously right.
Dan: Yeah. I mean, it's a weird dissent because he seems to write it from the presupposition that the government should win on the ultimate underlying issue.
Will: Yes.
Dan: Right.
Will: Well, it's not clear he thinks the government is right on the merits. I think he admits some of the money the government probably has to pay in the end.
Dan: But his argument seems to be that this is utterly lawless. And you think that's only because of the sovereign immunity issue?
Will: Well, I think there's the sovereignty immunity issue. So, this court is the wrong court to be doing this. And then I think he has, in a way, two different overbreadth issues. There's a sort of nationwide injunctions problem or a scope of relief problem. And then I do think Justice Alito's implied view on the merits is that more than $0 should be paid, but a lot less than the full $2 billion.
Dan: You think he clearly says some of the money should be paid?
Will: No, I don't think he clearly says that, but I do think in discussing the possibility of going to the Court of Federal Claims to get relief, I don't think it's obvious that he thinks that going to the Court of Federal Claims is a total waste of time either.
Dan: Yeah, that's not the same thing as thinking that the government is going to have to pay it, though.
Will: Fair enough. Maybe he thinks in the end that they don't have to pay any of it, but some of it is money already earned for work already done, kind of the strongest form of vested right contract claim.
Dan: That certainly seems like there's a very strong argument there. Although, I guess, I don't know what. If it was clear there was no waiver of sovereign immunity, then what would the answer be, you just get screwed?
Will: Right. Although, again, there is a waiver of sovereign immunity to go to the Court of Federal Claims for certain kinds of claims.
Dan: Yeah, yeah. But if the Trump administration just refuses to pay the money, what happens?
Will: Well, the Court of Federal Claims can order judgments that are paid out of the judgment fund. So, I don't know that anybody in the Trump administration. I actually don't know.
Dan: I mean, that isn't the judgment fund administered by the DOJ.
Will: That's possible. I'm not sure who administers the judgment fund. So, you'd get a judgment, you would go claim on the judgment fund, then somebody in DOJ would refuse to cut you the check from the judgment fund. Then maybe even Justice Alito would think you could, at that point, hold that person in contempt.
Dan: Yeah. Because there had been the waiver of sovereign immunity.
Will: Yes. And because Congress has appropriated the money.
Dan: Okay.
Will: He even says at the end, a federal court has many tools to address a party's supposed nonfeasance, but self-aggrandizement of its jurisdiction is not one of them. But these are all things that are not fully spelled out. And the interaction between them and equity as part of this. It's an awfully complicated thing to try to cook up in the context of a shadow docket decision about whether to stay a TRO. But I'm sure it's not the last we're going to hear about any of it.
Dan: And so, I guess there's this other little side note where he has one footnote leaving some ambiguity about likelihood of getting certiorari should be a relevant factor in the stay inquiry.
Will: Yes. So, this is one of the infamous or famous Barrett/Kavanaugh either innovations or important interventions in the shadow docket a few years ago where the two of them said, “We'd like to remind everybody when you're trying to seek these extraordinary writs or stays from the Supreme Court, that we don't just leap to the merits.” One of the questions is whether there's a fair prospect that the issue is cert-worthy. And if it's not cert-worthy, then we aren't going to just engage in error correction just because you might have a claim on the merits. And Justice Alito says, “Hey, this is a four-Justice dissent and four votes is what it takes for cert. So, here we are.”
Dan: But he seems to leave open whether that is in fact required, I guess.
Will: To the extent that likelihood of certiorari is a relevant factor. Yes.
Dan: And so, I wonder, does that bespeak some disagreement among the Justices?
Will: I suppose somebody in the dissent must think it's not what I can see that it's a relevant factor.
Dan: Yeah.
Will: But Justice Kavanaugh, of course, is one of the dissenters, so he probably does think it's a relevant factor.
Dan: Yeah. Anything else to say about it?
Will: Well, is this the place to talk about the fact that the right has now turned on Justice Barrett?
Dan: So, have you turned on Justice Barrett?
Will: No.
Dan: Okay, so, you're not the right.
Will: I mean I leave that for others to judge.
Dan: Well, yeah, there was a-- I'm sorry, it was just amusing post by not intentionally so, but a post by Josh Blackman on your, I guess former blog The Volokh Conspiracy called, “See I Told You So.” Really just whining about the fact that Justice Barrett does not just only go to the Republican Party website, I guess to get her marching orders in particular cases that she seems to have her own views and he calls for her to step down “because I don't think she actually enjoys the job.” I guess his evidence for that is that she doesn't always agree with the Trump administration.
Will: So, I try not to read those posts. [Dan laughs] But I do think this is part of a broader set of stories. You can see this on Twitter, on social media. You've seen several stories about, is MAGA turning against Justice Barrett.
Dan: So, Mike Davis, former clerk for Justice Gorsuch, very, very active on Twitter and a talking head on Fox News and it sometimes seems like Justice Gorsuch's self-appointed unofficial spokesman has ripped into her as well. And again, I guess I got to say I'm enjoying all this a little bit because he totally trashed her on Twitter and then other people brought receipts and pulled up clips of him on TV during her confirmation, calling her the most qualified Supreme Court nominee of all time. So, it shows you that there's some of the people that are participating in these conversations that I think are not really proceeding in good faith. And they claim that they're some people with support particular nominees because they're good lawyers and because they're going to be principled and so forth. And then when it turns out that those nominees’ views of the law does not support with 100% the Trump agenda, turns out all bets are off.
Will: So, I guess, I can't believe I'm saying this. I don't think that's a fair critique. I think you're totally entitled to say I thought Justice Souter was an originalist and I had reasons for thinking that. I'm not sure there were, but you can imagine that. But then he turned around and did stuff that's not at all what he led us to believe he would do. That's fine. I'm just not even sure I understand the charge as to Justice Barrett.
Dan: The charge is literally that she's not always voting for the Trump administration. I mean, I don't think the charge has been articulated more clearly than that.
Will: I mean, look, she could have not voted for the Trump administration in Trump v. Anderson and Trump v. United States. Indeed, she wrote concurring opinions in both cases, and some of the things she said in those concurring opinions might have led her to a different position. But she did. So, even if that's your claim, it's like the fact that she refused to grant two stays on the emergency docket, one [laughs] in and both--
Dan: Yeah. I think the standard is, does this person rule for the Trump administration 100% of the time? I guess. I don't know. I mean, I think it's embarrassing.
Will: I mean, it is also the case that she was with the pro prosecution side in the United States v. Fischer, the January 6th case. So, I was wondering if that was part of it. She did. There's another 5-4 case I don't think we're going to review in the show San Francisco v. EPA, a 5-4 environmental law case for sure.
Dan: The classic male-female split.
Will: Yeah. So, it's true that on some various statute of interpretation issues, she has a different view of the statute, sometimes aligns with the more level Justices occasionally. Although other cases like the one we'll talk about in a minute aren't. Yeah, I guess I just find it wild that the loyalty test extends even to the shadow docket.
Dan: I just think that if someone is approaching the job at all seriously with a kind of scholarly, lawyerly mindset, that person is never going to satisfy rank partisans.
Will: Although didn't Justice Thomas vote to deny the-- or vote to do nothing in Bessent v. Dellinger? So, does he have to resign? [Dan laughs] Do you get one free shadow docket apostasy, but not two?
Dan: Isn't Chief Justice Roberts also supposed to resign?
Will: Oh, yeah, people have--[crosstalk]
Dan: I thought Blackmun, gave him one chance to track down the leak. And when he didn't track down the latest leak, Blackmun's call for resignation stood. So, he has to resign?
Will: I wouldn't know, but people have been against the Chief since NFIB v. Sebelius. I think in 2016, both presidential candidates suggested he was possibly the worst person on the Supreme Court, which I think was unironically an impressive achievement and a sign of his accomplishment in character, even by the standards of politically motivated Supreme Court commentary, I confess I was a little surprised by this one.
Dan: I don't really know what it's supposed to accomplish either. I mean, I do not believe she's going to read these posts and resign.
Will: Do you think it accomplishes anything for the other Justices? Do you think it makes any other Justice think on the margins, they better give Trump some votes?
Dan: I'd like to think no.
Will: Do you think no?
Dan: Yeah, I do, actually. I don't know. I mean, I guess I think that if I were a Justice, it would just piss me off if people said stuff like this about me or really about my colleague, if I thought my colleague was taking the job seriously. And my inclination is to be a jerk and to be like, “Okay, I'll go the other direction.” [Will laughs] I'm not saying I would actually consciously change my vote in that way, but, I mean, I think that would be my impulse.
Will: I realize I'm probably Justice Barrett’s biggest fan on this podcast, but hard to argue she's not taking the job seriously, even in these cases where she writes the concurrence joining the conservative majority, but with some qualms. She has thoughtful formalist reasons. She has a bunch of writing about the shadow docket and trying to actually confront the dilemmas we've talked about between whether to do nothing or whether to do everything. So, sometimes there are Justices in the middle who seem like they're just a little, I don't know, doing something weird. But hard to say that about Justice Barrett.
Dan: Yeah, I mean, I think that there might be more room to criticize Justice Kavanaugh in the sense that he has some opinions that I'm not saying they're good or bad, but are a little bit less formalist, have a little bit shooting from the hip, a little bit more consciously sweeping arguments under the rug, maybe a little bit more pragmatic than people might have expected.
Will: Yeah. And that's actually, I think part of what's interesting is that they are, in a way, the two swing Justices in the court, or maybe them plus occasionally Gorsuch depends on the issue. And Justice Kavanaugh is probably the most functionalist and pragmatic of the three. Justice Gorsuch and Justice Barrett are both formalists, but very different kinds of formalists. Justice Barrett's a cautious formalist, Justice Gorsuch is a gunslinging cowboy formalist. And that can just go in different directions. Sometimes, it's postdoc and sometimes it's Department of State v. AIDS vaccines. And actually, this is one of the most interesting things with the court's dynamic is that there are defined methodological differences between these Justices whose votes are up for grabs in different cases. And so, you can't just say, “Oh, it's always about this lineup.”
Dan: Well, we will see if she heeds the call to resign. I wouldn't put bets on that, but--
Will: Yeah, I don't think she's going to resign.
Dan: Okay, well, I just said we'll see. I didn't say she would. We will see.
Will: [chuckles] Last time I made a bet with you on this podcast, I lost. I'm just saying I'm prepared to bet that she's not resigning.
Dan: I'm not going to take the other side of that bet.
Will: Okay.
Dan: I try to not take bets I don't think I can win.
Will: I'll offer you 10 to 1 odds.
Dan: No. Okay, 1,000 to 1?
Will: 1,000 to 1.
Dan: $10?
Will: Over what time period, ever?
Dan: [laughs] Well, I guess we do have to negotiate that in the next two years.
Will: Thousand to one the next two years.
Dan: You would owe me $10,000.
Will: Yeah. I think I'm not authorized to bet $10,000 without--
Dan: You can't do that with the center's money.
Will: [laughs] I definitely can't do it with the center’s money. And I don't think I can do it with my household's money either.
Dan: I think that would be a good bet about any Justice, right? Because they could have an unexpected health problem.
Will: Yeah, sure.
Dan: You get 1,000 to 1 odds. I think there's got to be an actuarial likelihood that any given Justice resigns within any two-year period is probably at least 0.1%.
Will: That's probably right. That's one of the things I'd want to sort of-- [crosstalk]
Dan: Okay.And I do like me a lottery ticket, bought a Powerball on my way home. I was at the gas station on the road down from Chicago to St. Louis.
Will: Did you win?
Dan: Well, no, it takes a couple days.
Will: Okay. Sorry. I don't buy those things. That's not one of the ones you scratched. That's one of the ones you watched--
Dan: No, it's just one of the ones where it's just like you get a number and then they draw the numbers and you could win hundreds of millions of dollars. Kind of keeps life a little bit exciting.
Will: Okay. If you win, are you still going to do the podcast or are you going to quit?
Dan: Yeah, start paying myself a salary though.
Will: Okay.
Dan: You refuse to do that.
Will: True.
Dan: Okay, so I guess we should talk about one actual opinion.
Will: Yeah. So, the Supreme Court's had a bunch of opinions, a surprisingly generous dump of real work product over the past couple weeks. Most of which I think we won't necessarily cover on the show. But we already talked about Glossip, and now I think it's worth talking about one of the more interesting 5-4 jurisdictional opinions Williams v. Reed, Alabama Secretary of Workforce.
Dan: Yeah, this is an interesting one. And I listened to the argument in this one a couple months ago, argued by occasional character discussed on the show Adam Unikowsky, I'd like to say friend of the show. He's a friend of mine. I don't know if he listens to the show, but he has a Substack of his own. We keep coming back to Substacks. That's very interesting. And he pulled out a narrow 5-4 victory here.
Will: He's a very good advocate.
Dan: What is going on here?
Will: Okay, so we have here a suit against the Alabama Secretary of Labor, which is maybe now called the Department of Workforce.
Dan: Yeah, there's a footnote about this. Yeah. Department of labor is now the Department of Workforce, presumably because in Alabama, they don't like labor. [Will laughs] They like workforce. They don't like labor.
Will: Really?
Dan: I don't know. I have no idea. [chuckles] I'm just guessing.
Will: All right. Anyway, it is a suit against the Secretary of Labor in state court, not in federal court, but in State Court under 42 U.S.C. Section 1983, the standard federal civil rights statute for bringing constitutional claims against states arguing that the state has not been processing unemployment benefits enough, quickly enough.
Dan: Can I ask a non-substantive question about this?
Will: Sure.
Dan: Do you know why the court always cites 1983 as actually, the majority opinion here does not but traditionally, the reporter of decisions puts in RevStat section 1979, 42 U.S.C. section 1983.
Will: Because RevStat section 1979 is the law and 42 U.S.C. 1983 is not.
Dan: Okay. And so RevStat is a codification.
Will: So, RevStat is an enacted codification.
Dan: It's an enacted codification that codifies the stuff that made its way into Title 42.
Will: So, RevStat was the first codification. So once upon a time, we just had the statutes at large. So, every time there was a statute--[crosstalk]
Dan: And you'd have to just go trace them all back.
Will: Yes. And then in the late 19th century, Congress authorized the revised statutes. So, the revisers took all the statutes, tried to figure out what the actual law was and made it RevStat.
Dan: And that was just one thing, the whole thing was enacted at the same time?
Will: Yes, Congress enacted RevStat and said this is not supposed to make any substantive changes. This is just supposed to restate what the law was. But in fact, it did make a lot of substantive changes. And so, there's a lot of--
Dan: Including one of them that affected your section three thing, right?
Will: Yes. One but not the other of the provisions that was designed to enforce Section 3 during the Civil War was left out of RevStat. And so, then there's questions of why did they leave it out and what does that mean? But so RevStat is the law.
Dan: It's never been unenacted.
Will: Well, it's never been unenacted. But then in the 20th century we created the U.S. Code and the U.S. Code has 50 something titles, 52 maybe now.
Dan: Now some of those have been enacted into positive law.
Will: And some have been enacted into positive law and some have not. They have to be pretty confident that the title because the RevStat experience made them realize that just like passing the codification could potentially upend the law a lot. So, they're now a little more careful about when they turn a codification into positive law. So, some of them have been enacted and some have not. And 42 U.S.C. is one of the ones that is not. So, 42 U.S.C. Section 1983 is the statute's nickname. RevStat 1979 is its original name or is its legal name. And then its original name is the Ku Klux Klan Act of 1871. That's where the statute started. And so, if you want to find the actual law, you have to go to RevStat.
And this can matter for various things, including some of the textual differences between the statute was enacted in 1871 and when it was in the RevStat. Most of the time the U.S. Code is good enough. It's prima facie evidence of law, but it's not the legally authoritative text.
Dan: And we've talked about this broader issue, I think before. What is the famous article that I think I've mentioned before in the show? I can't remember who wrote it, called on reading the statutes.
Will: Oh.
Dan: That's about this problem with--
Will: Toby Dorsey.
Dan: Okay, yeah, that's a great one about the fact that there are, I guess, a lot of things in the U.S. Code that are actually interpretive and not straight, transpositions of text from valid statutes.
Will: So, yeah, lots of things that are the law that are not put in the U.S. Code because the revisers have to decide, all the appropriation statutes are law, but nobody ever puts them in the U.S. Code. But sometimes there's stuff in the appropriation statutes that-- [crosstalk]
Dan: Affects the U.S. Code.
Will: Yeah. And then they defer to put it in and so on.
Dan: Okay. Yeah, sorry, that was just a side note. I actually didn't know how the history of RevStat, and now we do. Back to the opinion.
Will: Okay. So, we're in state court with a due process claim against the state under a federal statute. And the state court, the Alabama Supreme Court says, “You're in state courts, you have to obey state procedural and jurisdictional rules. And as a matter of state law, it's fatal that you haven't exhausted this claim.”
Dan: Exhausted means you have to go through the state process to try to get relief before you can run off to court.
Will: Right. Not the state court process, you're in the state court process, but the state administrative process.
Dan: And to get your denial of benefits reviewed under state law, there's this multistep process going through the administrative agency. And then there's this statute that says-- this is the Alabama state statute imposing the exhaustion requirement. “No circuit court shall permit an appeal from a decision allowing or disallowing a claim for benefits unless the decision sought to be reviewed is that of an appeals tribunal or of the board of appeals and unless the person filing such appeal has exhausted his administrative remedies as provided by this chapter.”
Will: Right.
Dan: I just got a question about that.
Will: Yeah.
Dan: The court majority opinion by Justice Kavanaugh says on its face, the state's exhaustion requirement prevents claimants from challenging adverse benefits determinations in state court, including in suits brought under 1983. Is that true on its face? This is page three of the opinion. This is not like in the analysis. This is just in page three in the background section.
Will: Do they mean something prevents you from challenging unexhausted benefits determinations?
Dan: Well, I mean, it says, “No circuit court shall permit an appeal from a decision.” But is a 1983 suit an appeal from a decision or is it something else? I'm just wondering if there's a way to. I mean, I know that, it's a state statute and the court isn't supposed to reinterpret it, but I just wondered if that was the best way to interpret it.
Will: I don't know the best way to interpret the statute, I will say. I see why you're asking that. And I feel like I would need to sit with Section 25-4 of the Alabama Code for longer to understand what's going on there.
Dan: Okay. I wouldn't recommend it.
Will: I will if you make me. [Dan laughs] Maybe.
Dan: You won't. Okay. Sorry. I found that a little puzzling as I was reading it.
Will: Many aspects of this case are a little puzzling. But so, the basic set up is we have a state court saying it's a matter of state. State law says, “We can't hear this appeal because it hasn't been exhausted, so we're not going to have the appeal.” And then the plaintiffs go to the U.S. Supreme Court and say, “Actually what the state has done here is violate the Supremacy Clause. They can't use the state law exhaustion requirement as a reason not to hear our claim because it is a claim brought under Federal Law, Section 1983, and the due process clause. And a line of cases, the most recent one of which is Haywood v. Drown, says that states have to hear those claims even if they don't want to, unless they have a,
‘Neutral rule of judicial administration’ that stops them from hearing them.”
Dan: And there's a broad argument and a narrow argument. I think the broad argument is that Alabama just can't have an exhaustion requirement for 1983 claims.
Will: Right. And the background to make that seem plausible under federal law, in federal court, the Supreme Court has said there is no exhaustion requirement for Section 1983 claims. So, [crosstalk] federal court.
Dan: Federal courts cannot make up such requirements.
Will: Right. And there isn't one.
Dan: I mean, there could be a statutory one if congress chose to create one.
Will: Yeah. But currently Section 1983 does not contain an implied one. And, yes, courts can't imply one. So, if I come into federal court and say the state administrative agencies did, “Blah, blah, blah,” the federal courts just have to figure out whether what they did was constitutional or not. They can't say, “Well, we don't want to hear this claim yet. Go back and ask them.” And it's the same federal statute in state court. So, it's not. The broad argument is when states hear claims under the statute, they have to hear them, kind of the same way federal courts would. And not give me any worse treatment than I would get in federal court.
Dan: And is the court going to resolve that question?
Will: So, the court does not resolve that question. And a version of the question comes up in several of these previous cases. The broadest version of that is also a little puzzling because state courts do have all sorts of procedures, that aren't necessarily the same as federal procedures. And state courts have their own law of jurisdiction, the same way federal courts have their own law of jurisdiction. So, there are early cases saying things like, if you show up in the Illinois small claims court with a million dollar police misconduct claim, and they say, “Well, we're not going to hear this case because it's not a small claim.” You can't be like, “Well, the federal court would hear this claim,” they can send you to some other court.
Dan: Yeah.
Will: If you show up in the Illinois City Court with a claim that arises in the Cook County, like outside of the municipality of Chicago, they can say, “You're in the wrong court.” Now maybe those are different because those are like, you're in the wrong court. Not there's no court you can go to.” We could talk about the features are there, but at least sometimes, like, if you're in state court, you're supposed to follow state procedure. And if you don't like that's the way the Federal Courts work. But that's a broad issue that the court last had in this case called Haywood v. Drown for 2008, which was also 5-4. We may talk about this in a minute. There may be uncertainty of what to do with those broader principles. But the court here just says, “Well, all we have to say is that this failure to exhaust claim, not even all failure to exhaust claims, but this failure to exhaust claim doesn't make sense because the very complaint is that the state process is unreasonably delayed.
Dan: Yeah, I mean, people have tried to exhaust the remedies and they're not getting responses.
Will: Right. It's indeed our inability to exhaust our claims that is causing us to sue. So, there would be a potential catch-22 by saying, “Well, you can't sue in state court until you exhaust your claims. Even if your complaint is that you're unconstitutionally being denied the right to exhaust your claims.”
Dan: When you see a case like this, don't you wonder why the state doesn't just call up the Department of Workforce and say, “We've got these 21 people suing. Could you just issue their decisions tomorrow? Wouldn't that be easier than like taking this all the way to the Supreme Court.”
Will: Well, so you're suggesting it would just moot their claims?
Dan: I mean, potentially. I mean, I guess we could have an argument about voluntary cessation or something, But I don't know. It just seems like, I mean, a lot of energy is being put into litigating this and whether to go through the state court system. I mean, this has been going on for a while. I presume there's lots of briefs filed. I mean, just decide these people's claims.
Will: Yeah. I mean, I don't know whether the next thing you would just face is some class action that just sort of starts us over again. And I do know that the Supreme Court really does not like it, after they grant cert, the people who won the kind of maybe inappropriate decision below then try to just-- [crosstalk]
Dan: Like, why not do this while it was winding its way up through the state court system? I don't know it just seems like a weird use of resources. It seems like whatever the state's resources are, it probably would consume fewer of them to just decide, give these people the process. Like, you don't have to give them the benefits. I think you just have to give them the answer.
Will: Yeah. And I feel like I don't know enough about what's actually going on here. Are these delays, they just reflate? What do the delays reflect? What's the goal here? But, yes, I agree. There's something weird about the whole set up. On the flip side, why did the plaintiff sue an Alabama state court?
Dan: Yeah. Is there some reason why they couldn't sue in federal court?
Will: Not that I know.
Dan: Like, there's not some sovereign immunity reason why they have to be in state court, right?
Will: Right. In general, it's just as hard to sue a state in state court as it is in federal court. And so that's why also, the Alabama Supreme Court decision is not exactly a catch-22, because the answer to the catch-22 is to go sue in federal court. Now, maybe the Eleventh Circuit has bad precedent on this, or maybe they also want to bring statutory claims that they think that a federal court is less likely to rule on correctly or something, but it's a sort of weird setup to get you to this jurisdictional puzzle.
Dan: Yeah. So, it's a pretty short, breezy Kavanaugh opinion. I think it's a good opinion, but it's not one getting deep into the weeds. That's just not kind of the way he does a lot of these opinions, at least his majority opinions, I feel like some of his concurring opinions are a little bit more systematic, but this one just gets the answer and explains why pretty quickly.
Will: Yeah. And especially when part of the central work is being done by just a pretty straightforward pragmatic claim, I think.
Dan: Yeah, right.
Will: So, without even getting into the bigger issue, it just doesn't make sense to say, “You have to exhaust a claim of improper delays,” that’s obvious mismatch or a problem and so, we don't have to consider the broader argument. This is one of those cases where the dissent is longer than the majority opinion. So, there's a dissent by Justice Thomas, with whom Justice Alito, Justice Gorsuch, and Justice Barrett joined as to part two. So, we got a Thomas Solo dissent in part one and then a 5-4 dissent in part two. That means Roberts and Kavanaugh are the ones joining Kagan, Sotomayor and Jackson for the majority.
Dan: Yeah. And so, the part one of the solo part of Thomas’s dissent, I mean, there's a lot of stuff in there. [laughs] He throws in a footnote [crosstalk] saying, “Basically there's petitioner suit implicates other precedents that may not withstand scrutiny.” So, first of all, he calls into question whether the Due Process Clause protects government entitlements at all.
Will: Yep, that would be big contrary to Goldberg v. Kelly.
Dan: Yep.And then he also calls into question whether you can sue under 1983 at all.
Will: Yeah, so this is a really important point. And as happens, I just provided commentary at a lunch talk by the author of this article. So, Tyler Lindley has an article called Anachronistic Readings of Section 1983 in the Alabama Law Review and then a sequel article working out the implications. I think that was just accepted to a law journal of this cycle, arguing that if you go back and read the original Ku Klux Klan Act of 1871 or RevStat, that we now call Section 1983 was not actually a freestanding cause of action. At the time, the cause of action came from, I think the process acts that said you had to use state law causes of action because this is back in the pre-federal rules era.
So, to bring suits, you needed to use the forms of action and find the right writ. And that what section 1983 originally did was just to give you a federal right which was necessary to create federal jurisdiction, but then it left all the forms of action to state law. And it's only later in the 20th century that we sort of forgot about the process acts, that we started to treat section 1983 as a freestanding federal cause of action.
Dan: Are you persuaded by this?
Will: I don't know. I should say Tyler Lindley was one of my students at Chicago and is now a law professor at BYU, and in general does incredible work on formalist and historical approaches to federal courts. So, it's a very good argument, and I think he's right about how the statute worked in 1871 or in 1878. I am still stuck on whether the Federal Rules of Civil Procedure changed that. So, the Federal Rules of Civil Procedure contain a very important rule that says there is only one form of action, the civil action. They abolish all the old forms of action and united in just like the modern era.
And so, my instinct has been that got rid of a lot of these state law form of action things and dramatically changed the landscape. I don't know anybody who's tried to run this down. I haven't tried to run this down. That view, if I'm right about that, it still raises other problems because that would be a very big deal. And the Federal Rules of Procedure were not supposed to make change to people's substantive rights. And so, is it possible that the Rules of Civil Procedure themselves violated the limits, The Rules Enabling Act? And these are all things that Lindley discusses in the para-articles. There are a lot of steps. Maybe I'll just say this is one of those arguments that requires you to believe five different things for the argument to still be true today.
And so, even if you think somebody is 85% likely to be right about each of the five things, you could still think that they haven't crossed the 50% likelihood of being right about all five things and it would be a big change. Justice Thomas has now put it on the long-long list of things Justice Thomas might want to reconsider in future cases.
Dan: Yeah. And so just to put the part that's not-- these little bombs in the footnotes in context, in part one, he's calling into question basically a huge amount of this precedent about state law discrimination against 1983 suits.
Will: Yes, yes. And so, he dissented in Haywood v. Drown, and it was similar. And that Justice Thomas had a dissent just for himself questioning this whole line of cases that says states are required to entertain, states are not allowed to impose jurisdictional limits against federal causes action, and then had other Justices joined them on the more modest part. There's since been an article by, maybe Michael Collins and Ann Woolhandler digging into this in the history and basically agreeing that Justice Thomas is right. Here's something odd, you've written about this. Congress has very broad power to restrict the jurisdiction of federal courts. Not plenary, but like a lot of power to mess around with the jurisdiction of federal courts. What the court is saying in these cases is the state legislatures have no comparable power over their own state courts.
There's just huge swaths of federal law where the state courts can't do the same kinds of things to keep things out of state court that Congress can do to the federal courts.
Dan: Yes, that's interesting.
Will: And it's not like it's necessary because these are all cases where the federal courts are open. So if the state court said, “We want to have an amount in controversy requirement, or we want to have all sorts of different things, they can't do to their state courts, what we can do to the federal courts, even though the federal courts are open and even though in the federal context, we often say, “Well, it's okay for Congress to strip the jurisdiction from the federal courts because the state courts are open.” So, now maybe that's the way it works. But it's odd.
Dan: Yeah, yeah. I don't know what to make of that, but obviously that would be bold. And other Justices are not willing to go there, at least in this case.
Will: Yeah, they're not willing to go there. And it may require some work to sort it out exactly. So, there's an early case in the early 20th century called Testa v. Katt, where the Supreme Court says if the state court hears a cause of action, they have to apply federal law in that cause of action. So, you can't say this is a state law only case where we pretend that there is no federal law. Federal law is the supreme law of the land, that every state has to apply it. I don't think Justice Thomas has ever questioned that. But then the court quickly went from that to the next step of saying, “Well, like if you open your courts for state law tort claims, then you have to also open your courts for federal constitutional claims.”
And then in Haywood v. Drown, the court went much further because in Haywood v. Drown, the court said, until Haywood, there was a nondiscrimination rule was the way everybody achieved this was to say, “Well, if you hear a claim, a state law claim, then you have to hear comparable federal law claims.” And then states started saying things like, “Well, fine, we don't want to hear either claim.” So, New York said, “We just don't want to hear a whole class of prisoner cases. They're overwhelming our courts and we think they're frivolous.” We won't hear the state law ones or the federal law ones.
And the Supreme Court said in Haywood, “you can't do that.” And similarly, here, I think there's no suspicion that Alabama's applying exhaustion only to process claims. They're just applying the exhaustion rule. They would apply to any claim. And we're now telling them, not that you can't have any exhaustion claims, any exhaustion rules, but at least you can with this one.
Dan: Yeah.
Will: But again, yeah. It seems like three of the Justices in the dissent don't want to go there. The majority doesn't want to go, consider the fundamental issue, but Justice Thomas is willing to consider it.
Dan: And so that doesn't get everybody. So, what parts do get the other dissenters?
Will: Okay, so then Justice Thomas does have four votes. I almost said a majority for part two. To say, okay, even if you just consider the narrow theory, we still disagree. “First of all,” says Justice Thomas, “the narrow theory wasn't really raised below and so we shouldn't consider it.” That's much of his dissent.
Dan: Yeah. Which the majority handles in a sentence, basically.
Will: Yeah.
Dan: Majority basically just says, “You're wrong. They raised it,” and cites a brief.
Will: Yeah. And also, I mean, I don't know. When the plaintiffs raise a broad theory that the majority doesn't want to have to take a position on. I feel like maybe it's not allowed, but I feel like it's not uncommon for them to find a way to turn the broad claim into a narrower theory that lets them set the case. Then they say, and then finally the court says, “Look, even if you get to the claim, even if you apply Haywood, this is not the right way to think about whether a state law rule is permissible.”
Dan: Yeah.
Will: And this is partly downstream of the fact that Haywood was a very confusing decision where New York had this somewhat peculiar anti-prisoner litigation provision. And the majority by Justice Stevens gave several reasons it was not allowed, but whether those reasons were the same reason and exactly what was going on was not totally spelled out. So, Justice Thomas says, “You should understood Haywood as being a intent-based test that the state's doing something because it thinks that the federal claims are frivolous and vexatious, just disagrees with the idea that they can be brought,” which is something Haywood said, and that's clearly not happening here. Like, nobody thinks the exhaustion rule is being adopted out of a hostility to federally processed claims, or anything like that.
Dan: Yeah. And again, the majority rejects that argument very, very briefly in one paragraph and says, “That's not the test. Rather, a state rule runs afoul of Haywood if it operates as an immunity statute cloaked in jurisdictional garb by wholly barring a particular species of 1983 suits in state court.”
Will: Right. So, they are still saying something important. They're still saying it's a kind of effects-based test. And if the effect of your state jurisdictional rule or your state procedural rule is to wholly bar a species of claims, then you can't have it. And then Justice Thomas says, “But look, lots of procedural rules will sometimes have the effect of categorically blocking some set of claims.” Now, I don't know whether it's a species or not. Are state statute of limitations requirements going to be unconstitutional as applied to certain kinds of claims that can only be discovered that are inherently discovered later? I'm going to say that a discovery rule is now federally required in state courts. You can imagine lots of-- [crosstalk]
Dan: Is that governed by state law when it's a federal cause of action?
Will: So, the statute of limitations depends on the analogous state law cause of action under federal law. But the accrual rate is normally governed by federal law.
Dan: That's confusing.
Will: There's a case called Wallace v. Kato, by Justice Scalia that's full of amazing, clear but confusing statements. So, I don't know, maybe that's the wrong example. But you could do other examples where you could say, “Here's a procedural rule. We lost with the procedural rule. Therefore, this is a procedural rule that bars a species of claims, namely our claim and other claims like it.” Now, I don't know that the majority is committing itself exactly to what it's doing there, but I think this is one of those things where they're clearly trying to dispose of this case in a sensible way without having to think too hard about federal courts. And I predict that will have a limited lifespan.
Dan: Sorry, the lifespan being that they'll have to [crosstalk] again.
Will: [crosstalk] -think about it again. Yeah, it's going to come up again in another posture. They're going to have to think a little harder about whether Haywood is right and if it's what it means.
Dan: Yeah. They don't have to do it now.
Will: Not today.
Dan: Okay. Anything else?
Will: One other shocking thing I just realized, I was struck by this. And this is just a sign of how old we are, Dan. So, Haywood is the side of the term I clerked and I was thinking, Justice Thomas, he was there in Haywood, so he may have a good sense of what was going on in Haywood and what was really animating it, you might think on the other hand, he wrote the dissent in Haywood. So, there are only three Justices on the Court who were there during Haywood.
Dan: That's crazy. I was thinking about that. There's been really tremendous turnover.
Will: Yeah.
Dan: Because you had Sotomayor and Kagan 2009, 2010, and then you had the Trump nominees and Jackson.
Will: And all three of those Justices who were on the court in Haywood were in the dissent. So, there are three Justices who all dissented in Haywood and then six new Justices who weren't even there arguing about how to best interpret this Justice Stevens opinion.
Dan: So, far from clear that the case would come out the same way if it was to come up again.
Will: Indeed. And again, maybe this is something that, in a different posture, with more time to think about it, maybe that's something where the Court will tack back to a more formalist approach. I don't know. But it also reminds you of just how many cases like that there are that wouldn't necessarily come out the same way. But the Court is not overturning.
Dan: Yeah.
Will: Because we spend so much time on all the cases the Court is overturning which are not insignificant, [laughs] worth noting. There's a lot more they could do.
Dan: Yeah. And maybe for that reason, it's not a bad thing when you have these kind of 10-page Kavanaugh under reasoned specials.
Will: It's kind of a bad thing.
Dan: Yeah, it is. You think?
Will: Well--
Dan: I don't mind it. I don't mind it.
Will: Haywood is just so wrong. [Dan laughs] And here they had a chance.
Dan: Is it a big deal?
Will: No. Well, I probably. I don't know. I have no idea if it's a big deal, practically, it's a big deal when you're trying to--[crosstalk]
Dan: It offends you as a matter of principle.
Will: When you're trying to edit the Fed Court’s casebook [laughs] and figure out how to put this material together, you're like, and Haywood says stuff.
Dan: [chuckles] All right, fair. But they're not trying to make your job easier.
Will: No, no, they're really not. And that's okay.
Dan: And if Fed Courts wasn't hard, we wouldn't need people to teach it.
Will: That's true. That's true. So, you're suggesting it's in my interest to keep it complicated?
Dan: Possibly.
Will: Yeah.
Dan: Like it's in defense lawyer’s interest for tort reform not to happen.
Will: Dan, I got other stuff I could do. I don't need Fed Courts to be complicated. If I couldn't pay the bills teaching fed courts or writing Fed Courts books, I could do something else.
Dan: Section 3 stuff.
Will: There's constitutional law, there's conflict of laws. I teach election law now. I could just do election law.
Dan: Okay, yeah. Changing it up midcareer reinvention.
Will: Yeah. Fed Courts is not made for the law professors. The law professors are made for fed courts.
[them music]
Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Don't forget our new blog, blog.dividedargument.com if you want to read commentary, not just from us, and not just about the Supreme Court, but hopefully in the same intellectual spirit.
Dan: Go to our website dividedargument.com for transcripts of the episodes shortly after they air. Store.dividedargument.com for merchandise. Please rate and review the podcast on the Apple Podcast app. Wherever you get your podcasts, send us an email pod@dividedargument.com or leave us a voicemail, 314-649-3790. And if there's a long delay between this and our next episode, it will because we are exhausted. [Will laughs]
[Divided Argument theme]
[Transcript provided by SpeechDocs Podcast Transcription]