We start out by debating who's responsible for Dan's audio snafus last time before digging into a various odds and ends, such as the Chief Justice's toast at the Supreme Court Historical Society dinner and President Trump's renunciation of Leonard Leo and the Federalist Society. We then try to make sense of the DIG in Labcorp v. Davis and see whether our predictions about Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos panned out.
We start out by debating who's responsible for Dan's audio snafus last time before digging into a various odds and ends, such as the Chief Justice's toast at the Supreme Court Historical Society dinner and President Trump's renunciation of Leonard Leo and the Federalist Society. We then try to make sense of the DIG in Labcorp v. Davis and see whether our predictions about Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos panned out.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Hopefully recording with better audio quality- [crosstalk]
Will: You sound great, Dan.
Dan: -than the previous episode. So, I don't totally know what happened. I was using my professional grade mic. I was recording at home, which sometimes has some glitches, but I thought I was doing it right, but I think I was on the wrong input. You and I had some back and forth at the beginning before we started recording, where you were like, “Oh, can you adjust where your mic is?” And you're like, “Yeah, it sounds fine.” And it did not sound fine. Sounded very, very bad. It sounded like I was drowning. And the drowning was being communicated via speakerphone onto another flip phone speakerphone that was then being broadcast over AM radio. [Will chuckles] I'm a little mad about it. I think we need to have a little truth and reconciliation.
I feel like maybe there's shared responsibility here, but I'm not going to take the full blame for this.
Will: I apologize, Dan.
Dan: Okay. That's okay. I'm over it.
Will: You sound better than fine today. You sound great.
Dan: Well, I'm recording a separate backup track on my computer just in case something goes wrong on the end of the University of Chicago Constitutional Law Institute.
Will: Good. Somebody pointed out that means that it's now 2 to 1, your mic failures to mine. But you pointed out that arguably reflects more badly on me than it does on you. The joke about go to a town and there are two barbers and one of them has a really nice haircut and the other one has a really messy haircut. You should go to the one with the messy haircut because you probably got that haircut from the other barber.
Dan: I like that. That says it in a much more articulate way than I could have.
Will: Anyway, sorry to you, Dan. Sorry to our listeners. Hopefully, we're back on track.
Dan: We will find out when we get the edited episode back. So, I'm hoping that will never happen again. And making some upgrades into my home and travel audio technology to try to maintain the level of audio fidelity for which this show is known or not.
Will: I think our most recent iTunes review, which must have posted right before the last episode, called us “the best sounding show yet.”
Dan: [chuckles] Well, I can say with some confidence that this episode will be the best sounding show since the last episode.
Will: Yeah. Including the last episode.
Dan: Yeah. I guess it depends on whether you mean since exclusively or inclusively. It's like a fence post problem or something.
Will: Yeah. All right, so what do we got going on? Why are we recording?
Dan: Because you told me we had to.
Will: Okay. There were eight opinions today or something.
Dan: Okay. Yeah, okay, there were that. I thought we were recording because the Chief Justice delivered a toast to the President at the Supreme Court Historical Society dinner.
Will: Yeah. The Washington Post had a headline that made my heart stop for a second earlier this week. “Chief Justice delivers traditional toast to President at Historical Society Dinner. Chief Justice Roberts’s toast appeared somewhat jarring for the law firm, summer associates and young lawyers in attendance who exchanged quizzical looks.” So, I read that headline and I thought, “Oh, dear, what happened? Why was this so awkward?” Upon reading the story, though, did you see this? I think here's what happened. The Supreme Court Historical Society has an annual dinner and then according to the story, for decades, the sitting Chief Justice has delivered the same seven-word toast at the start of Supreme Court Historical Society dinners he attends, no matter who is in the White House. “To the President of the United States.” Roberts boomed, his glass raised-- [crosstalk]
Dan: Can we just stop for a second?
Will: Yeah.
Dan: Why is that the tradition? Doesn't that seem strange?
Will: Yes.
Dan: When they have a state dinner at the White House, they don't say to the Chief Justice of the United States as the opening toast.
Will: Maybe they should.
Dan: I mean, maybe they should. Maybe we all should, but they don't. And it seems in some way disrespectful to the tripartite system of government for the Chief Justice of the United States to be paying homage to the President at this event, which I don't think the President attends.
Will: No. So according to the story, the annual Gridiron Club and Foundation Dinner for the media also has long closed to the same toast, although apparently this year it did not. And it said closed with the toast of the First Amendment. So, I have no idea and I'm sure somebody knows, but I wonder if there was just a period when the President was seen as more of just an apolitical neutral toast to the President, to America, but a little less.
Dan: But it's to the king, “God save the king,” or something like that.
Will: Well, this is always one of the awkward things about the United States is to what extent we did or didn't inherit various traditions of the crown applied to the President.
Dan: Yeah. The President is the head of state and head of government.
Will: Yeah. I once started to write a paper in law school about when they drafted the Judiciary Act, there was an extensive debate about whether or not writs from the US Courts would run in the name of the President or in the name of the United States. Because in England, they ran in the name of the king. And some people thought that here the writs should run in the name of the President. And then other people thought there was a separation of powers problem. Nothing of substance actually turns on it, like in whose name the writ runs, the courts are still going to issue the writs, but people were very worked up about it.
Dan: And so, they chose the United States. Except for now we have this world, the post ex parte Young world, where we have all sorts of suits where individual officials are named.
Will: Right. So not as defendants. Just when the court issues a writ of habeas corpus. In England when the court issued the writ of habeas corpus, it would have said, “In the name of the King, we order you to release this person.”
Dan: I see. It's like, whose sovereignty is this on behalf of?
Will: Right. And I think our courts, they chose the United States. I think when our courts issued writs, even at the Founding, they issued them in the name of the United States, not in the name of the President.
Dan: Ah, okay.
Will: But some people thought they issued them in the name of the President. And it's not even clear which way the separation of powers problem runs. Maybe making clear that the courts can issue writs in the name of the President makes clear that the courts bind the President. The president is now urging to release this person, and the court says so.
Dan: Yeah, that's interesting. So that paper fizzled out.
Will: The paper became the judgment power. And the part about writs got deleted because it was not obviously-- [crosstalk]
Dan: Wrote a bunch of other stuff and then deleted the original thing. Well, maybe that could be a green bag article or something.
Will: Yeah, well, and apparently the Supreme Court Historical Society chose otherwise. They chose to toast the President rather than the United States.
Dan: And the Chief did not deviate from practice. I think you like this.
Will: Well, look, once you've got the practice of toasting to the President of the United States for whatever reason, it will be really weird to stop it for the second Trump presidency.
Dan: Yes, I agree. Maybe this is a reason why you shouldn't start a practice like this to begin with.
Will: Arguably, unless Trump actually orders the National Guard to take the Supreme Court building, it's hard to imagine why that would stop.
Dan: At that point, I think we've got bigger things to worry about. They are going to have the military parade in DC very, very shortly. I think for Trump's birthday--
Will: We're actually doing that?
Dan: I believe so. Yeah. I think that's actually happening. And I'm actually in DC right now, it's allegedly to celebrate the Army’s 250th anniversary, but it seems to be happening right around Trump's June 14th birthday. In fact, on June 14, just by coincidence. And they're rolling tanks through just the civilian streets of DC which in terms of symbolism, I find a little disturbing, but it has very practical consequences. I mean, these tanks are going to tear up the roads and the army is allegedly putting down these steel plates that supposedly will protect the roads from these incredibly heavy tanks.
Will: Huh.
Dan: It just seems like a bad idea for many reasons. But it's one of those things where it's going to happen whether I want it to or not.
Will: You going to go like, watch it?
Dan: I think I'm going to pass on that one. Although I will be back in DC when it happens. So, it's going to be a little tricky to navigate the city.
Will: All right, enjoy.
Dan: Okay. One other fun piece of news on a recent Jeopardy episode, there was a clue. What do you call? You call the Jeopardy clues, do you call them answers?
Will: I think clues is good.
Dan: I mean, it is a clue, but obviously in Jeopardy, your answers to the clue come in the form of a question. And so maybe the clues are answers, but that was about where the answer in the form of a question was the shadow docket. So, the clue in the form of answer, getting confused now, was basically prompting you to say the shadow docket.
Will: Yeah, the clue was-- [crosstalk]
Dan: You got the text there.
Will: Yeah. The category was books of the Bible? So, these are like puns about Bible books. The clue was, “Books judging the judges include one from 2023 titled this Dark Realm of 99% of the Supreme Court's decisions, none signed.”
Dan: It's a pretty well-designed prompt.
Will: Yes. I did not watch this episode of Jeopardy. I used to be a Jeopardy fan, but I gathered none of the contestants knew it.
Dan: That's unfortunate.
Will: So, we still got some ways to go before shadow docket achieves sufficient penetration. I guess. That's too bad.
Dan: Well, nonetheless, congratulations to Steve Vladek and I think by extension to you for popularizing that term, which I think we are getting away from. I feel like emergency docket is taking hold. I think we've mentioned this before.
Will: Yeah, I think I said I'm working on an article called the Emergency Docket, so hopefully that will make the new label equally taboo once I've associated myself with it.
Dan: But just to be clear, you don't get to retroactively claim credit for the emergency docket by writing a new article called the Emergency Docket.
Will: I'm just trying to figure out what's going on with it.
Dan: Yeah, no, I look forward to reading it.
Will: I look forward to reading it. One other small thing I forgot to mention, I think we talked last episode about the manifold prediction markets that I sometimes play around in and how they had once had one about whether Divided Argument would mention manifold on the episode. Well, a manifold market was created just in the past day or two. Will the podcast Divided Argument release an episode by end of day on Monday, June 9th?
Dan: Yes, I believe so.
Will: At the time that posted and somebody pinged me about it, it was trading at 53%. But it is now trading at 96%.
Dan: Because you went and made a bunch of buys?
Will: Yes.
Dan: Okay.
Will: Because it seems likely to me that we will release an episode by Monday, June 9th.
Dan: So, I could humiliate you just by shutting off my mic and walking away from my computer right now.
Will: If you did, I would release this 13-minute episode to make sure I get the points.
Dan: Yeah. Okay. If the music starts right now, [show theme music starts] [Will laughs] that's what happened.
Will: Yeah.
Dan: Are we still here? Okay, I guess we're still here.
Will: Yeah. It's true that you could create an account and we could bid against each other in weird ways about the show.
Dan: Yeah. I'm not really sure to what end.
Will: Right. There's no actual money involved, so we already established that. Lost all your interest.
Dan: Yeah. I think you need stakes, right? Don't you need stakes?
Will: Do you not play games, Dan? Victory, victory at stakes.
Dan: That's true, but this feels very abstract. Just these little points on a website where you don't even know who you're competing against.
Will: You play basketball, you're just playing for abstract points on a little scoreboard.
Dan: Yeah, but against competitors you can see; it's very visceral.
Will: Okay.
Dan: Anyway, this isn't.
Will: I just need the points. I play video games online against people I can't see. It's fine.
Dan: You play Magic online?
Will: Yeah.
Dan: Anything else?
Will: No. Scramble sometimes. Chess sometimes, I guess.
Dan: My oldest kid really wants to learn D&D, but I don't totally know how to teach him, and it seems challenging. Hopefully, maybe we can set you up to do a lesson at some point.
Will: That'd be great. I used to spend a lot of my time Dungeon Mastering.
Dan: Were you always the dungeon master?
Will: Pretty much. I had a friend who had a couple of campaigns that I would play in, but I was pretty much the go to dungeon master from--
Dan: Just because you were more creative?
Will: I think it's because I owned the books. In fifth grade, I got my hands on a copy of the Player's Handbook and nobody else had one, so I sort of became the de facto dungeon master and then things went from there. But fifth grade through 12th grade, I probably spent more time playing D&D than anything else, including school.
Dan: It seemed to work out for you.
Will: It was a great campaign anyway.
Dan: Do you ever watch Stranger Things?
Will: No, but I've been told repeatedly that I have to. And the fact that I have not is embarrassing. But I can't figure out my Netflix password.
Dan: Are you familiar with how to reset passwords using online accounts?
Will: Yes, but it doesn't go to an email address I have access to. [laughs]
Dan: Are you still paying for it?
Will: Yes.
Dan: I think we should shut off your credit card and just get you a new account. This will count as research for the podcast now. You can deduct it.
Will: It's under my wife's email address, and we have not coordinated enough to get me access to them.
Dan: All right. Have you joined the Supreme Court bar?
Will: No, [laughs] of course not.
Dan: Will you ever?
Will: Start a manifold mark on that one?
Dan: Please someone should. I think you should. I'll move you in. I know you want the Chief to move you in, and maybe you want to do it in open court, but come on, don't you want to have the power to file stuff?
Will: Ah, yes, but obviously I'm challenged with the paperwork.
Dan: I'll do the paperwork.
Will: I do have an Illinois firearms owner ID card. That required some paperwork.
Dan: Do you have a gun?
Will: No, but I have a firearms owner ID card so I could have a gun.
Dan: Why did you get the card if you don't have a gun? You want to have a gun?
Will: Recently, a colleague and I took some UChicago Law students, to a local shooting range as one of these trips for the charity auction. And if you're an Illinois resident to go to the shooting range and handle firearms, they require you to have a firearm on your ID card.
Dan: Is that a reasonable regulation?
Will: The requirement that you get an ID card?
Dan: Yeah.
Will: Well, it was pretty easy to get.
Dan: Okay. Any litmus test they gave you?
Will: I don't know, but I passed it.
Dan: Okay. I feel like there was one other little titbit we were going to talk about before we got into the meat of the episode, such as it will be-- Didn't we have something or did we plow through them all?
Will: I forgot.
Dan: Okay. Immediately after recording this episode, I'm going to go have quick drink with longtime friend of the show, Kannon Shanmugam. So, we'll see if he can give me any other titbits that we could use next time because he's a little bit more in the know about the DC gos than me or you.
Will: For sure. We should have him on the show.
Dan: Oh, I forgot. I remember the other thing, which is that the day has finally come in which President Trump has now decisively parted ways with the Federalist Society and folks like you. He went on a long screed against Leonard Leo on Truth Social, I guess prompted by the initial ruling against his tariffs.
Will: Yes.
Dan: Which was subsequently stayed. So, it wasn't actually a big deal, but somehow this just set him off.
Will: Yes. So, the ruling against tariffs was denounced as a judicial coup or something by Stephen Miller. And then people pointed out that one of the judges who joined that ruling was a Trump appointee to the Court of National Trade. Now, my understanding is he was a Democrat who was appointed because there's some sort of partisan balance, either requirement or norm for the Court of National Trade. So, I don't even think he was a Leonard Leo pick. But this set Trump off on the need to generally point out the fact that somebody was a Trump appointee did not mean they were good, because they're really all Leonard Leo's fault, which might be setting up. I mean, I assume the point of that is to make clear that he's also mad at Justice Barrett and Justice Kavanaugh, Justice Gorsuch, when they were against him.
Dan: Yeah. And that is a little alarming to me, because it does for all the ways in which I might disagree with some of those Justices sometimes, and there are such ways, I think there are far worse potential choices and I think to the extent that the next pick might just be a Fox News host, I don't think that's going to be great for the country, great for the law, or really even great for this podcast. [Will laughs] I think it might give us some comic relief for an episode or two or three. But I think at a certain point, having to try to do what we do with opinions drafted by the Fox News version of Judge Judy on the Supreme Court, that wouldn't be great.
Will: Well, it'd be interesting because people get so mad that I am so relentlessly focused on trying to justify the unjustifiable in their view by suggesting the Supreme Court is following legal principles and we should figure out those legal principles are. So, if there would be somebody in the court who actually wasn't following legal principles and there was no point in trying to figure out what they were, maybe that would force me to change my approach and maybe people like that.
Dan: You're a very pro good faith doing your absolute best to kind of steel man the other side's reasoning. What would it take to get you to that point, where you were just going to say “They're not even trying. This is not law. This is no pretense of law. This is just Fox News ranting.”
Will: You mean besides Trump v. Anderson?
Dan: You didn't say that. You were very gently critical. You did suggest in your New York Times op ed that the decision was maybe motivated by concern about rule of law type concerns about people, different parts of the system pushing back too much on Trump. I don't think that approaches what we're talking about.
Will: And I think the Harvard Law Review piece that Paulsen and I wrote about it was a little harsher. The op ed, maybe a little bit of Paulsen rubbed off on me. [Dan laughs] Well, anyway. I mean, look, if they appoint somebody who's proceeding in bad faith and doing weird stuff, I think it would still make sense to try to steel man it, try to understand what's the best case for this person's doing.
Dan: Why does it matter whether it's in bad faith? I mean, there are the people who just wouldn't even understand the difference that we're talking about. They would just immediately they would just think, “Of course, my job here is to just do the thing that makes sense based on my own priors.”
Will: Yeah, I guess. I mean, the way I think about law is that in our system, what judges do is they offer claims about why they're doing what they do and why they're allowed to do what they do. And then part of the point offering those claims is so that people can judge you on them. So, this person's presumably going to write opinions. And the opinions might say very different stuff. They might say, “I'm doing this stuff because it's good for Trump MAGA,” in which case we could judge whether that's a good argument or whether it's true and so on or likely the person will still write opinions kind of like all the other judges. They'll just be worse in some way. We will think they don't make any sense, they're inconsistent or something, and we'll judge that. But either way, I think part of the point is the judges are holding themselves out to be judged by offering reasons. And so, we try to figure out whether that makes any sense.
Dan: Well, I would enjoy seeing you contort yourself a little bit to try to view the MAGA Justice in the best possible light, which I don't think you would do for ideological reasons. I just think you would do because you are very principled and committed to trying to really understand ideas for their own sake and not jump to reflexive political reactions. So, I admire that.
Will: I mean, yeah, I won't start trying to guess in advance who this hypothetical MAGA Justice is going to be. Although isn't the best Trump appointment still Judge Ho? So, the one person able to unite the FedSoc and MAGA wings of the party.
Dan: I mean, that was common wisdom coming into this presidency. But I mean, things change so rapidly, it's really hard to know. Maybe he's going to want to appoint someone who does not appeal to the FedSoc wing of the party. If he's actively hostile to the FedSoc folks.
Will: That's true.
Dan: If they come to him and they say, “Hey, this guy's got FedSoc support,” that could be instantly disqualifying, depending on his state of mind vis-a-vis the FedSoc at that point.
Will: I don't think it's written anywhere that the Justice has to be a lawyer either. So, you've got a whole range of options even himself [Dan chuckles] [crosstalk] to region of the Kennedy Center, right?
Dan: Yep.
Will: And there's no-- [crosstalk]
Dan: That would be interesting. I think Democrats would happily take that.
Will: Well, I'm not envisioning he would resign as president.
Dan: No, no, no. But regardless, that would mean that you would have a bad Justice for a while, but certainly not a Justice who would retain that seat for 40 years unless he's much heartier than I expect.
Will: If Donald Trump nominated Donald Trump to the Supreme Court, I am confident he would get zero Democratic votes taken from him. Maybe the Democrats would secretly be happy about it. [laughs] There's no filibuster, so he wouldn't need any Democratic votes, but I'm confident he would get none.
Dan: He might get one.
Will: Who?
Dan: I don't know. Someone might do it for the laws.
Will: No, Democrats have nothing to do-- [crosstalk]
Dan: Maybe John Fetterman. You don't-- [crosstalk]
Will: Okay. I thought you might say Fetterman.
Dan: Yeah, I was thinking about it. All right. But this is funny. We're talking about this because today is also the day that the decisive break, which I just remember thinking this is going to happen-- It's going to be so funny when this happens. The decisive break between Trump and Elon Musk has also happened as we were recording, as we were recording right now, a friend just sent me a tweet. Well, not a tweet, an X post by Elon himself that says, “Time to drop the really big bomb. Real Donald Trump is in the Epstein files. That is the real reason they have not been made public. Have a nice day, DJT.” There's not a lot of coming back from that in terms of their relationship. I don't think this marriage can be saved.
Will: Yeah. And I gather that Trump has been posting mean things about Elon Musk as well, although I don't--
Dan: And now threatening to sanction Tesla. Apparently, Tesla stock is down 14%.
Will: Yeah. And the reason for their fight is because Donald Trump wants to pass some terrible--
Dan: One big, beautiful bill.
Will: Yeah. And we're just calling it that. So, it will also be BBB to be like the Biden one. Is that why we're doing that? Because Biden's bill back better?
Dan: Yeah, I hadn't figured that out. Oh, yeah. Maybe. I hadn't really seen people abbreviating it in that fashion. Okay, so maybe. All right, we've caught up on a lot of odds and ends. Let's do some substance. So, we got some opinions. Not a bunch.
Will: Five opinions in [crosstalk] a per curium today.
Dan: Yep.
Will: It's a shocking amount.
Dan: And they seem to be clearing their deck with some largely kind of unanimous things. Presumably, there's some other things in the works that are-- [crosstalk]
Will: Less unanimous?
Dan: Going to be less so.
Will: Although, I wouldn't be surprised if in general, the rise of the emergency docket means that the merits cases become more unanimous. We talked about how it's just a shrinking the number, but also anything vaguely interesting might have already been resolved by All Writs Act injunction two years earlier.
Dan: The only things that stick around for the length of time it takes to get through the entire appellate process are kind of dull.
Will: Yeah. All right, so what do we got? What should we talk about?
Dan: Well, we could quickly mention Laboratory Corporation of America Holdings v. Davis. Now, this company, I've always called it LabCorp. At the oral argument, everyone called it LabCor(p), which I thought was strange.
Will: It was LabCor(p}?
Dan: Why? It's a corporation. The name of the company is Laboratory Corporation. Does it suddenly become French when you abbreviate it? It's not like the Marine Corps. That has an S at the end. [Will laughs] That seems strange to me. It's LabCorp. Like in Superman, LexCorp. They don't say Lex Cor, right? [Will laughs] All right. That’s the least interesting thing about that.
Will: So that's why they DIG the case, is because they didn't like the name.
Dan: No. Apparently everybody agrees on the name. I'm the only one. Apparently, you agree on the name.
Will: Yeah.
Dan: Disappointing.
Will: Yeah. Sorry.
Dan: So, this was a DIG. So, if you listen to the argument as I did, it did seem quite likely that this case would be DIG’d—dismissed as improvidently granted. It's an interesting case about whether a federal court can certify a class action that has more than a de minimis number of uninjured class members sort of raises some interesting questions about Article III class actions. But it turned out that getting to that question was going to be a mess because the district court certified a class. There's this procedure, Rule 23(f) for taking a potential interlocutory appeal of such orders. The defendants did that; goes up to the Ninth Circuit. Then while the case is still up at the Ninth Circuit, the district court kind of issued a new opinion arguably changing or clarifying the scope of class certification.
And then, we end up with this mess where there was this significant confusion about whether which order was in front of the Supreme Court, in front of the Ninth Circuit, and in front of the Supreme Court. And whether the case was moot because the earlier thing that was appealed had been superseded. And it was just very, very messy and confusing. And I came away from the case just a little puzzled and trying to figure out what's going on. And I feel like that is also where the court must have been. They must have just decided that this is a little too hard. [laughs] Let's get this issue back in a different case that doesn't present the same complexities. Doesn't necessarily-- [crosstalk]
Will: When they only decide 45 merits cases a year, I feel like they can't afford to DIG the ones they have.
Dan: Yeah. Is this the third dig this term? So, we had one in Nvidia, we had one in LabCorp, and we had one in Facebook. That's three.
Will: Yeah. Third DIG.
Dan: And one notable thing of those three, two had the same council for respondents. So, petitioner is the one who tries to get the case granted. Respondent is the one who doesn't want the case granted and is defending judgment below. Friend of mine, Deepak Gupta was the counsel for the respondent and even after these cases had been granted, they were orally argued, succeeded in getting the court to DIG them. So, I think that's very impressive. I don't know. I would be curious if anyone has ever broken that record. My guess is someone has tied that record. Some respondent side counsel has had two, but I doubt somebody's ever had three in one term. But I don't know.
Will: Yeah. No, forcing a DIG is like a very-- what you want in a good response counsel, right?
Dan: Yeah.
Will: I mean, you like to win.
Dan: Yeah. It's interesting. Both of-- Deepak’s, it took a little while for the court to do it. And so, for example, LabCorp was argued on April 29th, it was DIG’d on June 5. So more than a month Nvidia was argued on November 13th, decided December 11th. And so even when there's these issues that come up, the argument that suggests there's some things that the court is confused about, concerned about maybe thinking the case shouldn't have been granted. The longer it goes on, the more you start to think, “Well, maybe they are going to just plow through these issues and decide it,” but these cases… In the other dig, in the Facebook case, it was a little quicker. It was about 16 days.
Here, maybe the reason that it took a little longer is Justice Kavanaugh wrote a solo dissent from denial, kind of straightforward. He has his view about why there's not a problem with letting the petitioners appeal from and seek certiorari on the earlier ruling of the district court and saying, “Look, we granted cert to decide this issue. I think we should decide this issue.” And he seems very concerned about this issue. Seems to that think that this is a real problem. Federal courts should not be doing this. Imposes a lot of costs on defendants who have to pay settlements in cases where actually if they went all the way, it would turn out that there's lots of people who weren't actually injured and don't really have claims. So, he is encouraging the court to revisit the issue. So, did you have anything else to say about that one? That's kind of interesting.
Will: No.
Dan: Okay. We do have time for at least one merit's opinion. Why don't you pick which of the two potential ones we're going to talk about?
Will: Well, we already previewed Smith & Wesson Brands v. Estados Unidos, which we got today. So maybe we should start there.
Dan: Yeah, that's one we can talk about pretty quickly. So, this is one of several unanimous opinions. This one is by Justice Kagan. It is relatively breezy to the point. It is 15 pages and we have a couple of quite short concurrences. We have a two pager from Justice Thomas and a three pager from Justice Jackson. So, everybody is basically on the same side here, seeing the case the same way. And the court disposes of the issue very quickly. Disposes of the issue exactly as we predicted, which is basically our big takeaway from talking about this case was, gosh, these legal issues are maybe not quite as simple as you might think if you actually try to take the statute seriously. But step back, there's just no way the Supreme Court is going to say the Republic of Mexico, the United States of Mexico, is going to be able to sue American gun manufacturers to put them out of business because people are getting killed in Mexico. It's just not going to happen. And it is not going to happen.
Will: Right. The question here is whether or not this tort suit brought by Mexico against Smith & Wesson was barred by PLCAA, The Protection of Lawful Commerce and Arms Act, which forbids most lawsuits against gun companies for torts about the misuse of their guns, but has some exceptions for aiding and abetting a violation of federal law where the violation was a proximate cause of the harm for which relief is sought. And the court here says just applying ordinary aiding and abetting principles derived from two Supreme Court cases, that what the gun manufacturers are plausibly alleged to have done doesn't amount to aiding and abetting, right?
Dan: Yeah. And I had a blog post on this a while back, sort of about aiding in abetting. And my take was this was maybe a little bit of a hard question that this did seem to be in between some of the relevant precedents in terms of the conduct that could count as aiding and abetting. Because on the one hand, it's very clear we don't want a system that imposes liability, criminal or otherwise, under ordinary commercial sellers of products just to people who happen to use them for bad ends. Home Depot sells rubber hoses and various other things, and we don't want to say just because people buy that stuff at Home Depot, Home Depot is a meth dealer because meth dealers or meth manufacturers are buying this stuff. Obviously not.
On the other hand, there's many ways in which someone might be selling ostensibly legal products, but in such a way to such an extent that we really do think they are complicit in the criminal enterprise. And that is the line that precedent in this area has tried to kind of--[crosstalk]
Will: So, let me ask you about the line. So, Justice Kagan says, in an interesting paragraph that there are several ancillary principles, and she lists three for drawing the line. And she's a very good writer, so she states these pretty clearly. Principle one is that aiding and abetting is most commonly for specific acts. It's possible for someone to aid and abet a broad category of misconduct, but only if the participation is correspondingly pervasive, systemic and culpable. But otherwise, you got to say a specific thing. Second, that aiding and abetting requires misfeasance rather than nonfeasance, absent and independent duty to act, failures, omissions, and inactions don't support aiding and abetting liability. And third, routine and general activity that happens incidentally doesn't count as aiding abetting. So, the third one I understood, the first two are those previously clear to you?
Dan: Certainly not as principles of criminal law. But I guess I would say, if we're thinking about this from the perspective of criminal law, aiding and abetting only comes into play when there is a prosecution for a specific crime. You don't just say someone is generically guilty of crimes. They did crimes. You have to charge them--
Will: But you could prosecute somebody for aiding and abetting without charging the principal, right?
Dan: That was not historically the rule, but yes, that is absolutely correct today and has been correct for quite some time.
Will: So, you could charge a gun manufacturer with aiding and abetting a whole bunch of crimes committed by the gun users?
Dan: Yeah, I think if it was a criminal charge, you still would need to identify the specific crime. You couldn't just-- aiding and abetting like crimes in general.
Will: Could you say you sold this gun to a drug cartel and then they committed a whole bunch of crimes?
Dan: Yeah, I don't see why not. To the extent that she's saying there's some rule that you can only aid and abet a couple crimes and that once there start to be a lot of crimes. No. That's certainly not true. I mean, conspiracy liability is a form of accomplice liability. It's a synonym for aiding and abetting. And certainly, there's all sorts of examples where people who are members of a large-scale drug conspiracy are criminally responsible for everything the conspiracy did. So, I guess I don't totally understand what she's saying. I mean, I think that to the extent that the claim is, you have to identify something sure. If the claim is, you can't aid and abet like a lot of stuff, that seems wrong.
Will: Right. So, what she says is the complaint does not pinpoint a given manufacturer aiding a given firearms dealer at a particular time and place and selling guns to a given Mexican trafficker. They don't say this dude bought this gun from this person. Instead, they say that all the manufacturers assist a number of unidentified rogue gun dealers in making a host of firearm sales. Is that a problem?
Dan: I mean, it seems like if you aid and abet a lot of crimes, you aid and abet a lot of crimes.
Will: Yeah, but she says if you're going to say that, then you've got to have a heightens your pleading burden. You now have to show pervasive systemic and culpable assistance.
Dan: Yeah, I don't exactly know if that seems right. I mean, that comes from the Twitter case from a few years back, although that case seems a bit different. Twitter was being sued basically for not removing ISIS content, indirectly permitting ISIS to communicate and do terroristic things via the platform.
Will: Right. Twitter was also being sued for inaction. So, I get that if you're being charged with inaction, aiding and abetting, then maybe it has to pervasive systemic and culpable inaction. The same way that an employer doesn't create a hostile environment unless it's a lot of stuff. But anyway, that seems weird. And this part of the opinion is written as just general statements about aiding and abetting law. So, I think federal criminal defense attorneys everywhere should be downloading this one and trying to see if it's useful in their cases.
Dan: And so, aiding and abetting usually requires misfeasance rather than nonfeasance. Absent independent duty to act, person's failures, omissions or inactions, even in some sense blameworthy, will rarely support aiding and abetting liability. I mean, as a larger statement of criminal law, that is true, which is that omissions are not punishable, absent a duty to act.
Will: Yeah.
Dan: And aiding and abetting usually requires both the mens rea, guilty mind and an actus reus, guilty act.
Will: But what about omissions in the context of an action? These guys are making guns, but they're not--
Dan: That's was where I would go is, this is not a case premised entirely on omissions. This is a case premised on actually doing stuff. And obviously part of theory is that they could be doing other stuff that would prevent harm. But this is not a case where they're just standing by and harm is happening and they have no role in it.
Will: Right.
Dan: And so, you could clearly see, like giving someone a gun could count as aiding and abetting, even if you can spin the theory as you admitted to not give them the gun [chuckles], right?
Will: Right. Again, maybe the point is these three things we read together that what you're doing is your incidental business activity. And we want to say that's bad. The thing that's bad can't be your failure to do something else. You're selling a bunch of guns, then you're in action. And not also keeping a closer eye on the people you're selling them to, doesn't render your gun selling a problem, I guess.
Dan: That line doesn't make a ton of sense to me because you can define it as an act, your choice to provide guns to people you know are killing people.
Will: Right. But I think she's saying, if you don't provide guns to a lot of people, you provide guns only to the cartels, that's the aiding and abetting. But if you sell guns to all comers and then you just fail to ask whether some of them are in the cartel and some aren't, that's fine. Unless you have a duty to ask.
Dan: Let's talk about Direct Sales Company v. United States, which is one of these cases that's in-- it's usually like a note case in your classic 1L crim-law casebook. And there's a mail order pharmacy that ships narcotics like morphine, very quaint narcotic. Now we've got much heavier duty stuff. And they would ship this and they would normally ship relatively small amounts, 400 quarter grain tablets to any given average physician annually. That's the average. But they were selling this other guy, Dr. Tate, some 5,000 to 6,000 half grain tablets every month. So, a lot, radically more than other doctors were getting. And they actively stimulated his purchases by giving him special discounts and using high pressure sales methods. And Bureau of Narcotics had formed the company that it was being used as a source of supply by lawbreaking doctors. And the court there said, “Yeah, that counts as aiding and abetting the narcotics violations by the doctors,” because there was knowledge and the specific actions just described counted as actively participating.
Will: Yeah.
Dan: I don't totally know what's different about that than here, where we have-- maybe the specifics. We do get into an issue a little bit later where the court says, “Look, you allege that there are these bad gun dealers, that you allege that the gun companies are still selling guns to you, but you haven't actually identified who they are. Not specific enough.” Okay, fair enough. That seems like it's just a Rule 12, plausible pleading issue. But to the extent this is making a statement about the scope of aiding and abetting liability, I don't know if I agree.
Will: Yeah. Then the one other action that's alleged in the complaint that's interesting is one of the claims is that some of the guns that they design are designed to be particularly appealing to cartels.
Dan: Which I found one of the most disturbing things among the allegations. It's not something I was aware of.
Will: Yeah. And so having dispatched the other things, then the court says, “Finally, Mexico's allegations about the manufacturer's design and marketing decisions add nothing of consequence, as to the claim that they make military style assault weapons like the AR15. These products are widely illegal and bought by many ordinary consumers. The AR15 is the most popular rifle in the country.” See Terry Gross segment on NPR. And as for the fact that a lot of the guns have Spanish language names or graphics alluding to Mexican history, maybe that's just to sell guns to millions of law-abiding Hispanic Americans.
Dan: Yeah. I feel like they dispatched these allegations a little too quickly. And yes, sure, these guns, no one's disputing that just selling these things on their own are illegal. But if the gun companies are acting with guilty mind here and intentionally doing this because they think they're going to increase sales among cartel owners, I don't know, not totally sure why that shouldn't count. In the same way as in the direct sales universe it seems to plausibly allege mens rea. And it seems like actually active conduct, not just an omission.
Will: Yeah. So, I was interested in the AR15 thing also because earlier this week the court denied cert in a case about the assault weapons ban in Maryland. And there are cases like this around the country and assault weapons basically means a semiautomatic rifle like the AR15 that has one other random thing about it. And then it depends on the state what the random thing is, like a high-capacity magazine or a flash suppressor or a pistol grip or other things. And so, Justice Kavanaugh wrote a dissent-- statement respecting denial that I wrote about on the blog, which I don't need to talk about here, but includes this sort of like pay to the AR15.
Now, this is widely used by many people, and so now there's a Supreme Court unanimous from court citation for the proposition that the AR15 is widely legal and bought by many ordinary consumers and is the most popular rifle in the country, which I've already seen the gun people in my Twitter feed get excited about.
Dan: Are you a gun person now that you went to the range?
Will: I don't own any guns. Guns are dangerous.
Dan: Well, I agree, but you could still be a gun person.
Will: I mean, I've written an article about the Second Amendment. I don't know if that counts.
Dan: Do you get all the NRA invitations and money from having written that article?
Will: No. No. I still have never met Leonard Leo and I've never gotten any money from the NRA. I'm doing this thing wrong, I guess--[crosstalk]
Dan: Leonard Leo is old news. He's out. Yeah. My 10-year-old is unfortunately a gun person. Not in a bad school shooter way, but I just mean that he's decided-- he keeps saying he wants to join the military for reasons that are very unclear, because he lacks discipline and really doesn't like following orders. So, I'm not sure how well that would work out. But this is particularly relevant because he is at sleepaway camp this week and now that he's 10, he's allowed to shoot rifles at sleepaway camp, which is something he's been dreaming of for a very long time. So, hopefully he doesn't come back a true Second Amendment believer. I'm a little concerned about that.
Will: Yeah.
Dan: Would you let your kids shoot rifles in a safe environment?
Will: We don't allow toy guns in the house, I'll say that.
Dan: Okay. Oh, wow. To the extent we ever thought about that. We gave up on that many years ago. So, no Nerf. Wow. We've got a lot of Nerfs. If you guys ever come over. Hope that's not going to be an issue.
Will: We'll figure it out.
Dan: We can hide them. We can hide the Nerfs. Okay. You're a pacifist. You're more of a pacifist than I would have expected.
Will: Violence is very bad.
Dan: Yeah, sure. Okay.
Will: So then, two weird concurrences. Justice Thomas writes separately with a theory that I'd frankly never heard of. Although maybe it's a widespread theory that the PLCAA exceptions, the definition of a violation should be limited to cases where-- it's not just some allegation that somebody's violated the law, but there's already been an earlier finding of guilt or liability in an adjudication regarding the violation. So, only if somebody is convicted of a gun crime or sued for a gun crime, can you then bring a sort of follow on PLCAA suit?
Dan: Yeah. That was interesting. I don't remember if that one came up in the argument. I remember there being discussion of proximate cause questions, but this was interesting. It does seem-- it did not strike me as the most obvious way to read the statute and, however narrow the statute or exception is, it would make it even narrower.
Will: Right. Justice Thomas suggests this is in part to deal with constitutional concerns and suspicious breadth. My one thought is, if this is a thing, would it also be a thing the court might apply to RICO because RICO is famously broad and allows plaintiffs to come in and sue for all sorts of a pattern of un-litigated criminal behavior? And so, I wonder if this could also be set up as a new way to limit RICO and say only if the organization's already been found to have convicted a bunch of crimes. Can you-- [crosstalk]
Dan: Do you think the issue though is Second Amendment issues in particular or is it a kind of crim-pro fairness issues is a little unclear from reading this. “Allowing plaintiffs to proffer mere allegations would force many defendants to litigate their criminal guilt in a civil proceeding without the full panoply of protections as we otherwise afford to criminal defendants.” And so that sounds like maybe it's kind of like a due process, Sixth Amendment. Maybe that's the concern. But you do also wonder whether there's a Second Amendment concern floating around here that might not apply. I guess I'm not persuaded that that's a concern because they're not really having to litigate their criminal guilt in the sense that a liability finding here is not something that imposes criminal sanctions. If there was a subsequent criminal prosecution for these predicate acts, the defendant there would still get the full panoply of protections.
Will: Yeah.
Dan: So, this is just the way that the statute of reliability is defined.
Will: Right. Until now. And he also notes that “these defendants might even include ones who were cleared in an earlier proceeding through a noncharging decision or a not guilty or not liable verdict. Such collateral adjudication would be at best highly unusual and would likely raise serious constitutional questions.”
Dan: Yeah, that's a little interesting. That's one I want to think about a bit more.
Will: Well, what about O.J.?
Dan: Well, that's the other direction, right?
Dan: No. Isn't that O.J. -- [crosstalk].
Dan: Yeah, you're right. You're right, you're right. Because--[crosstalk]
Will: O.J. was clear-
Dan: Yeah, exactly right.
Will: -through a not guilty verdict.
Dan: Yes. And then you're allowed to do that because it's a higher burden of proof, right?
Will: Well, that's what I thought. But Justice Thomas is suggesting that maybe it's unconstitutional for a follow-on civil suit to have a lower burden of proof for the same conduct you were cleared for in a criminal case which would mean O.J. --
Dan: That can't be right.
Will: Which would mean O.J. should have gotten off.
Dan: Yeah.
Will: Even sooner. I don’t know. [laughs]
Dan: Then he would have never lost his Heisman Trophy, right?
Will: Yeah. I mean, maybe that's what Justice Thomas is thinking about. Maybe he's still worried about that.
Dan: O. J. back in public mind for a minute because, I don't know if you've seen the trailer for the new reboot of the Naked Gun parody series. Have you seen this?
Will: No.
Dan: So, O.J. was a character--[crosstalk]
Will: I’ve seen theoriginal Naked Guns several times.
Dan: O.J. is Nordberg. There's a very funny scene in the trailer where they show each of the leads in the movie looking at a picture of these-- the actors in the prior series are supposed to be their fathers.
Will: I see.
Dan: Leslie Nielsen is Liam Neeson's father is the premise. And then they have the new character looking. He was supposed to be the son of Nordberg looking up at a picture of O.J. because the previous two guys said they really miss their dads, and he just looks up and then shakes his head. That got riotous laughter when that trailer was played at the last movie I was at. And my 8-year-old leaned over and was like, “What is so funny?” And I just said, “This is too complicated to explain. [Will laughs] Ask me later.” And he has not asked me again. So, someday I'll explain it. But there's a lot of context there, [laughs] so a lot to unpack.
Will: Yeah. That's interesting.
Dan: All right, so you have to go in 10 minutes. I think we may have run out of time for our last case. What do you think?
Will: It'sprobably right. Oh, yeah. And Justice Jackson has a concurring opinion that I didn't understand.
Dan: Yeah. I was hoping you were going to break it down for me.
Will: Yeah. All right. I think we should probably call it a show.
Dan: Yeah. Were we going to try to make sense of her decision?
Will: Oh, I really couldn't make sense of it.
Dan: Okay. So, she seems to say you need to show particular statutory violations as predicates. And is she just saying that the complaint needed to be more clear about what those violations were? Is that the-- [crosstalk]
Will: I mean she says you need a statutory violation, but we all-- [crosstalk]
Dan: We knew that.
Will: Yeah.
Dan: I mean, I don't know why this needed to be written, I guess she just says, “All Mexico alleges that firms’ industry wide practices facilitated dealers unspecified downstream violations. Mexico does not tether its claim to alleged statuary breaches.” So, she just wants a list, I guess in a complaint.
Will: I think the point of it is that she believes in congressional intent. And so, this is throwing some congressional intent in. But there was some reference to the purpose in the minority opinion. I genuinely wasn't sure.
Dan: In other opinion, we were going to talk about where we're not going to the Catholic Charities case. She also has a separate opinion where she talks about congressional purpose and so forth. So, it does seem like a theme. She's a Justice of themes.
Will: She just writes separately a lot.
Dan: Yeah. I don't always know where she's going.
Will: Me either. Interesting.
Dan: All right. Well, please remember to rate and review on the Apple Podcast app or another venue of your choice. Check out our website, dividedargument.com for transcripts of the episodes shortly after they're released. store.dividedargument.com for merchandise, blog.dividedargument.com for the new Divided Argument Group blog. Lots of posts coming in there that expand on questions that we don't have time to talk about. We have a really good stable of commentators that may continue to grow. Send us an email pod@dividedargument.com. We are getting a lot of those these days and some of them get long, and we do our best to try to respond, but we're dropping the ball on some of those, so shorter the better. You can also leave us a voicemail 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: If there is a long delay between this and our next episode, it will be because the Trump administration, due to its break with Leonard Leo, come after members of the Federal Society. And Will has finally been taken into custody for all of his heterodox views.
Will: You can't keep doing that one, Dan.
Dan: [chuckles] That was different. That was different.
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