Unpredictably, we take a new approach and record immediately after the Court drops new opinions. We dig into Alexander v. South Carolina State Conference of the NAACP (voting rights) and NRA v. Vullo (free speech). Before that, we engage with listener feedback and talk about the latest developments in the endless Alito flag saga.
Unpredictably, we take a new approach and record immediately after the Court drops new opinions. We dig into Alexander v. South Carolina State Conference of the NAACP (voting rights) and NRA v. Vullo (free speech). Before that, we engage with listener feedback and talk about the latest developments in the endless Alito flag saga.
[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, we slightly changed our strategy this time, Will, to actually try to record after opinions come out rather than immediately before.
Will: Yeah. What do you think of this strategy? It's sort of off brand for us.
Dan: It's going to prevent us from being overtaken by present events a little bit. I'm sure that something will happen sometime soon. We're now recording this, it is midday on Friday, May 31. So, you'll get this probably on Saturday or later if we have any hold ups. So, I'm optimistic there won't be anything huge that comes down this afternoon or over the weekend.
Will: I assume there's going to be a new Jodi Kantor story late this afternoon about how Justice Alito owns a gun and once did something with it.
Dan: Wouldn't you save a story like that for Monday to get the news cycle? I mean, Friday afternoon is the worst time to put up a news story.
Will: Is that still true?
Dan: I really don't know. I don't know if I think if I'm trying to get engagement on Twitter/X, I wouldn't do it. A new thread on Friday afternoon.
Will: Yeah, I know I'm very bad at optimizing that stuff, but it just seems like people are, I don’t know-- [crosstalk]
Dan: [crosstalk] You just do tweets that outrage people and then just leave and don't engage.
Will: What are you thinking of?
Dan: Have I ever given you a hard time about-- now I don't even remember what it was prompted by, but it was like, “It's too bad that most critics of originalism don't keep up with the literature.”
Will: Oh, yeah.
Dan: That one was like at least 50% trolling, right?
Will: [laughs] I think that was prompted by John McGinnis’s review of Justice Breyer's new book on interpretation. And I think that was McGinnis’s complaint that Breyer had not kept up with the literature on originalism. And so still criticizing originalists for focusing on things that they, in fact, don't focus on anymore.
Dan: Do you think all the self-described originalist Justices keep up with the literature?
Will: I don't think all of them do. And I do think if Justice Breyer’s critique had been something like, “If only my colleagues would keep up with the originalist literature more, that would better.”
[laughter]
Will: I would have had a very different reaction.
Dan: It was a little trolly.
Will: I certainly got a lot of upset emails with that one. That's fair.
Dan: Got some non-substantive stuff to work through. So, those of you who are all substance all the time, press that 30-second fast forward button a bunch of times. Let's just try to go through it. Sometimes, every once in a while, we urge people to review us at the beginning of the episode rather than saving that to the end when people aren't listening. I think this is another time where we could use your intervention to review, particularly on the Apple Podcast app. We still have a quite high rating there, 4.8 out of 5. But some of the textual comments would like to have those drowned out a lot and--
Will: Taken a hit lately, Dan. [chuckles]
Dan: A little bit, yeah, and perhaps setting the wrong incentives as always. But let's engage with them a little bit. So, here's one from Saturday by msl12345. The review is titled “No.” And one star, “Will Baude” misspelled “lives in an alternate reality,” fair?
Will: I am reading a new fantasy novel series and I'm really enjoying it. [Dan laughs]
Dan: Which one?
Will: I'm not sure if that's-- [laughs] Brandon Sanderson's Mistborn series.
Dan: Okay, I don't know anything about that.
Will: He's the guy who finished The Wheel of Time when Robert Jordan… [crosstalk] and that has been an incredibly prolific and accomplished fantasy author in his own right. So, I finally started to get at his stuff.
Dan: Well, that'll go on maybe our late summer episode list when we run out of things to talk about. No, we never going to run out of stuff to talk about. We'll still spend the late summer catching up on stuff we missed from this term.
Oh, speaking of, we are both going on vacation in about a week, but hopefully we can record next week, see if there's any other big opinions that come out. And then you'll have to endure a little bit of hiatus. And then we will come back. I'm back in mid-June or so. I don't know about you, Will.
Will: Same. We should actually be both on air at the same time for the last two weeks of the term. [crosstalk]
Dan: Okay. And then assuming, I leave the weekend, the final weekend of June. So, as long as they are done by June 27th, we should be able to cover the biggest stuff before we leave. And otherwise, you will have to have a couple weeks of break on that. What else have we got? Okay, here's a three-star review from Derd. “Show of hands: is anyone surprised these guys think lawyers from small firms aren’t smart enough to file intelligent briefs with SCOTUS? Wait, keep them up while I count… If your only exposure to the real practice of law is being a judicial clerk and then working at a huge law firm just long enough to pay off your student loans, you may not have the best perspective.” Okay.
Will: It's a reference to our ghostwriting episode, I guess.
Dan: Yeah. Which I don't recall us ever adopting the view that no lawyer from a small firm can write an intelligent brief with SCOTUS. We didn't say that. I think we took a position on whether a particular brief was ghostwritten. I feel confident that that position was borne out by the facts and by inferences that can be drawn from publicly available information. And I got to say, this comment has small firm lawyer energy--
Will: Dan, Dan, they're just going to leave more reviews like this.
Dan: I know, but look, we didn't take that position. Not all lawyers at big firms can write good briefs. In fact, most lawyers at big firms can write bad briefs [crosstalk] the Supreme Court.
Will: Let me just ask you straight. Is that your position? Do you think lawyers from small firms are smart enough to file intelligent briefs with SCOTUS?
Dan: I think some lawyers, and I think some lawyers at big firms are smart enough, and I also don't necessarily think it's a question of intelligence. I think it's a question of familiarity with the norms of a particular court. I consider myself a smart person. I'm not qualified to file briefs in the Delaware Court of Chancery. I have no idea what the norms are for that court. I could maybe help somebody edit a brief. But it's a domain-specific set of skills and knowledge, and there's most areas of law, I don't have those skills, and I don't have that knowledge.
And I'd like to believe that if I really wanted to, I could become a good practitioner before the Delaware Court of Chancery. I'm not sure that would require a lot of work, so I don't know. At least, we only got three stars on that one. Here's one [chuckles] from Will Baude fan. I LOVE THIS PODCAST!!!!!!! “I LOVE IT SO SO SO MUCH ESPECIALLY WILL BAUDE HE IS MY HERO.” Is that trolling?
Will: I don't know. Did my kids somehow get access to the computer?
Dan: I don't know. It almost feels like this over the top, that someone's mocking someone. I'm not sure who. lamby183 review “Garbage.” “This podcast consists of one host parroting the conservatives on SCOTUS with a straight “face” (voice) while the other host remarks on the 3rd eye they have grown trying to prop up the legitimacy of the court.”
Will: Is that you are-- [crosstalk]
Dan: It must be me by process of elimination.
Will: Or, are you remarking on my 3rd eye?
Dan: Oh, yeah, maybe that's right. Okay, remarks on the 3rd eye, they, I guess. I don't know.
Will: Here's the next sentence. “Reporting and remarking on current decisions as if they are consistent in approach is its own form of bias.”
Dan: I mean, I don't think we always say they're consistent in approach. But I do think we try to engage with the opinions as a first cut on their own terms. And that's maybe not in vogue at the moment.
Will: And that's a choice, right? We're analyzing them in legal terms that actually reflect some view we have about what does or should matter, that maybe not everybody-- [crosstalk]
Dan: Yeah, and also the belief that those views do matter some percentage of the time, even if they don't matter some other percentage of the time. I've certainly, all the time, I'm criticizing the court and saying that stuff it's doing is hurting its legitimacy. That's a big thread in my scholarship.
Will: One more nice one I liked by Doog Doolan.
[laughter]
Will: “Best Legal Podcast Around!” “The chemistry between the two hosts is palpable—reminds me of Mike&Mike in the morning during its heyday. Epps is a brilliant and caustic legal realist; Baude a brilliant and annoyingly earnest legal formalist. The clashes that result make for an eminently listenable podcast, both for its legal insights and entertainment value. Comes highly recommended!”
Dan: I like it, although I don't love always being painted into a box. We get all these emails that are making assumptions about putting me in some box. I have complicated views. I'm not coming at it from where you are, but I don't know.
Will: Do you regard yourself as a--?
Dan: Am I a caustic legal realist? I am certain amount of the time, but I also engage on the law. And you've said, as a quote, “I am a formalist because I'm a realist.” Right? That's an accurate quote.
Will: I’ve said that, yeah.
Dan: Okay, well, more of the latter, less of the former, please. We also got an email from a listener, Josh Windham, who says, “I'm so here for Dan's playful jabbing of Will's originalism, but it seems like we're missing out. Can Will jab Dan's [???] ism once in a while? Whereas Will's unflapped refusal to respond, actually his response.” So, I like this one a lot because I like the bracket because I don't know what I would put into that bracket other than somewhat of a lack of confidence in the strong form originalism that you endorse. But this is true. This is true. No matter what I throw at you, you just stand there and you take it.
But I think that's, like almost the ultimate F you, in the same way that Justice Kennedy would never engage with the dissent in his opinions, because it's just like, “I don't have to. I'm winning.” To be clear, I don't think that was his view. But that's what it seemed like if you read the opinion, you'd be like, “He's winning all the cases, and he just doesn't have to engage if he doesn't want to.” It doesn't matter.
Will: I guess I'll say, it is true that I'm not by nature a jabber, but you're very hard to jab precisely because you don't-- [crosstalk]
Dan: I don't commit myself to anything.
Will: To an ism, and you take each case on its own. So, it's hard to paint you in a corner. And so, I think on occasion when I trap you in a corner, I do try to-- [crosstalk]
Dan: Okay, to see if I can wiggle out today. Okay. We got a lot of feedback from various people, not going to summarize all of it, about this question we asked about Smith v. Spizzirri, about why-- [crosstalk]
Will: Yeah.Almost didn't talk about it on the episode, and it's produced like [crosstalk] right now.
[laughter]
Dan: Yeah, the things that we spent, the least time on got the most feedback, but a range of you. So, one, you made this, postulated this thing about the six-month list, and do these stayed cases reflect on the judge's stats in a way that they care about. And the answer to that is unclear because some people wrote in and very clearly said they don't. And some people said they do. It's possible that there's a circuit-specific practice there. I'm not really sure.
Will: Also sounds like there are several different lists.
Dan: Yeah.
Will: There's a six-month list, but there's also a three-year list. And so, yeah, we got a lot of feedback about that, but it's a little confusing.
Dan: Yeah. Indeterminate. So, I don't know. Another one that struck me as fairly persuasive from listener Steffi Ostrowski, who notes that “A stay is not appealable immediately and a dismissal is.” That's a big difference.
Will: That is interesting.
Dan: So, that makes a ton of sense, and that's why I can imagine. Oh, it's interesting. I guess that would mean that the plaintiff who was trying to proceed in court would actually maybe prefer the dismissal.
Will: At least if they think they have a good argument that it shouldn't be.
Dan: Yeah.
Will: Right. One that generally makes sense that the person who wants the case to go before the arbitrator may well want it stayed because they may need to make it easier to enforce the arbitrator's decision or something like that afterwards. The person who doesn't want to go before the arbitrator might want to dismiss, so they can take another shot at getting it going up. But the overall dynamic where the district courts in the Ninth Circuit were doing something that made it easier to review them, dismissing the cases, and now the Supreme Court has said, “No, stop doing that. You should do it this other way where we can't review you as much.” That's interesting in the sense that if you thought that the courts were generally going to maximize their own power or everybody's playing a little contrary to that incentive.
Dan: We also had this question that we talked about briefly from a listener last time about how often are there five Justice concurrences.
Will: Mm-hmm. Or were there any we can think of.
Dan: Yeah. Whether there were any. And we said, “We don't know,” right?
Will: Yeah. We said, “Show us one, listeners.”
Dan: Yeah.
Will: Listeners, they did.
Dan: Yes. We heard from two folks noted, a friend of the show and Supreme Court practitioner Willie J. And another friend of the show, a law professor at Missouri and soon to be SMU, Tommy Bennett. And so, it seems like the best example we have is this case, Bazemore v. Friday from 1986.
Will: Yeah.
Dan: Okay. So, it's a two-page unanimous per curiam. Then there's a concurrence by Justice Brennan, in part, that was joined by all other members of the court, and then it goes into more detail on the holding. And then there's a separate concurring opinion by Justice White, that was joined by Chief Justice Burger, Justice Powell, Justice Rehnquist, and Justice O'Connor. That went one step further to decide an additional issue in the case. And then the court wrote the per curiam, such as it, to reflect the view of both concurrences. So, it adopts those as the holding.
Will: How can you have a concurring opinion that's only concurring in part and joined by all other members of the court? Then who's left in the per curiam?
Dan: Well, maybe I guess it depends on what exactly the in-part means.
Will: Yeah.
Dan: What it must mean is that Justice Brennan doesn't fully agree with the per curiam, but everybody else does.
Will: And they could still join his concurrence.
Dan: Well, if he doesn't say I disagree. If he's just saying, “I agree in part and everybody else agrees in part, and they also agree in the other part,” [ Will laughs] right?
Will: Yeah. There is also a four-Justice dissent by Justice Brennan. Marshall, Blackmun, Stevens, that's dissenting in part. So, I gather Brennan has the view. He's concurring in part, dissenting in part, and then all the Justices agree with his--
Dan: With that part. The concurring part.
Will: All Justices are joining in the concurring part of his concurrence. Instead of writing an opinion of concurring in part and dissenting in part, he's writing two opinions.
Dan: Yeah.
Will: One concurring and one dissenting in part. And everybody joins the concurring, and then three other people join the dissenting in part.
Dan: Yeah. I think it works.
Will: It's funny, I actually, we had a Bazemore case when I clerked at the court. So, [laughs] I remember once spending a lot of time in this opinion trying to figure out [crosstalk] going on.
Dan: This one's on you for not knowing. You would have really burnished, your legend if we had flagged that, and you had been like, “I got one.”
Will: Bazemore v. Friday, yeah.
Dan: Yeah.
Will: We had this case AT&T. v. Hulteen. about the Title VII and The Pregnancy Discrimination Act, sort of like Ledbetter adjacent. I like one of these cases about when past employment discrimination, I think the way pensions triggers various things. I just forgot about it.
Dan: And you had really dug into that one?
Will: I used to know that pretty well. [crosstalk]
Dan: Clerkship is growing increasingly distant in your memory. And then Tommy went above and beyond, and he relied on the Supreme Court database, which is, at least until recently, was hosted here at my institution in Washington University in St. Louis. I don't know whether we're still hosting it. I hope so. But I think it might be moving, and has a couple others. There's this case, L. Singer & Sons v. Union Pacific Railroad, 6-3 case with a 5-vote concurrence. So, there's one. And then there's this case, Rosenberg, about the capital case of Julius and Ethel Rosenberg. That one's a little bit more complicated. I'm not going to get into it. But he was able to back these out by using the Supreme Court database, so that's cool.
The only other thing to note is that Willie J. hypothesized that in Bazemore, what must have happened is that Brennan maybe was assigned the opinion, ends up losing the majority part, and then reorganizes everything into these two separate opinions with the per curium. That seems plausible.
Will: Yeah.
Dan: Because otherwise, why not-- why does it make sense to break up? They could have just given the opinion to Justice White, I guess, and he could have written his majority, and then Brennan could have had his concurring in part, dissenting in part.
Will: Yeah.
Dan: I really remember why this came up, but we talked about, how did you get Supreme Court opinions back in the day when you couldn't just hit a refresh on supremecourt.gov. And Lynn Simon wrote in to say that we should check. But he believed that at one point, at least some Supreme Court opinions were reprinted, at least in significant part, in the New York Times, possibly abridged, maybe full versions. And then at some point, he remembers people complaining about that ceasing. But I don't have independent verification of that yet. So, putting that out there for any listeners who might have lived through that era as to whether that-- [crosstalk]
Will: I spent a few minutes with this claim, and I did find there are some major cases, like, the Pentagon Papers case, where that was true, where the New York Times basically reprinted the whole opinions, of course-
Dan: Yeah.
Will: -the New York Times-- [crosstalk]
Dan: That makes sense because it implicated them.
Will: Yeah. They were a party, actually. [laughs] New York Times v. United States.
Dan: Yeah.
Will: I couldn't ground that more broadly. I will say one of my former colleagues, Nick Stephanopoulos, used to collect and frame and hang on his wall, like the New York Times pages of famous voting rights cases.
Dan: Oh, that's cool.
Will: And all the ones I saw, even though these are major cases, Reynolds v. Sims or whatever, did not have the opinion. They had a story about the opinion. Now, maybe the opinion was somewhere on the inside.
Dan: Yeah.
Will: Or maybe those were ones that didn't make the cut or, I don't know.
Dan: Maybe, I'm sure somebody in the world knows. Okay, we got more on Justice Alito flag stuff. You want to tell us about that?
Will: Do we have to? So, I'm trying to remember, where were we-- last episode we had the first flag, since then--
Dan: Yeah. Did the appeal to heaven flag happen in the--
Will: I think the story about the appeal to heaven flag, which is the flag flying at the Alito beach house, which may or may not be a religious symbol or insurrection adjacent, although also apparently it was flying at the San Francisco City Hall until they found out that they weren't supposed to do that and took it down a few days ago. So, we had that flag. We then also had stories about how the Washington Post had known about the flag, back in January 2021, and Bob Barnes drove out to the Alito house, gulped it out, and decided not to run the story.
We had a follow up story about the neighborhood drama, and then we had senators Durbin and White House-- I guess they wrote to the Chief Justice, asking him to put a leash on Justice Alito, force him to recuse or to confront the recusal question or something. And this prompted letters back, one from Justice Alito. That's a very interesting document in which he, I guess, it gives the most substantive response to any of these charges that we've seen.
Dan: Yeah, it's interesting in a bunch of ways. So, he states the Supreme Court disqualification standard, and he's going to conclude that no reasonable person who is not motivated by political or ideological considerations or a desire to affect the outcome of Supreme Court cases would conclude that the facts here meet the applicable standard for recusal. So, let's go through two flags. So, we got the upside-down American flag. He says, “I had nothing whatsoever to do with the flying of flag. I was not aware of it until it was called to my attention. As soon as I saw it, I asked my wife to take it down. But for several days she refused,” which gives us a certain amount of a peek inside the Alito marriage.
He says, “My wife and I own our Virginia home jointly. She therefore has the legal right to use the property as she sees fit. And there were no additional steps that I could have taken to have the flag taken down more promptly.” I was curious about that. I asked my wife Danielle D’Onfro, who's a property scholar, and she said, “If they own the house jointly, it's true that Mrs. Alito can fly the flag, but also that Justice Alito can remove the flag, as long as he doesn't assault her in doing so. And then they could just keep going back and forth.” He takes the flag down, she puts it up, and then the only way to ultimately resolve this is partition, where they have to sell the property and split the proceeds, or divide the parcel into two, which I imagine will be difficult.
Will: Could they just sell the flagpole somehow, or could he sell the flag?
Dan: That's a question of personal property now, not real property. If the flag is her personal property, presumably he can't.
Will: If it's her personal property, can he even take it down or would that itself be trespassed to chattels?
Dan: I presume if he doesn't dispose of it, it's not a trespass to chattels to move it from his own property. If someone has left stuff on your property, it's not a trespass to chattels, I think, to remove it from your property. But it sounds like maybe there's-- [laughs]
Will: Well, maybe he doesn't know how to work the flagpole, [Dan laughs] because we learn as we get to the second flag, he's not the flag guy in the household.
Dan: Yeah. So, this is maybe the most interesting part. He says, “My wife's reasons for flying the flag are not relevant for present purposes. But I note she was greatly distressed at the time due in large part to a very nasty neighborhood dispute, which I had no involvement.” So, he does not say why she flew it.
Will: That's right.
Dan: And he does not deny that it had a connection to Stop the Steal. That's fascinating.
Will: Right. Now, he doesn't confirm it either. And I take it there's a range of possibilities from she wanted it to signal Stop the Steal to it did signal some Trump-Biden relevant feelings, which are still maybe things that are unbecoming for a Supreme Court Justice to express to something else. But, yes, I do think it's interesting, and especially as we get to the second flag, where he has a different, it’s stronger.
Dan: Yeah. So, with the second flag, the facts are different. So, first of all, it's at the vacation house. She owns it in her name. It's not jointly owned. She bought it with money she inherited. Fair enough. And then also, he says, “Both he and his wife were unaware of any connection between the flag and the Stop the Steal movement.”
Will: Yes.
Dan: I am satisfied with the response on that flag.
Will: Sure.
Dan: I'm not 100% satisfied with the response on flag one. I mean, it also does raise this question. This has come up a lot with Justice Thomas about the activities of his wife and one view and the defender of the conservative Justices has just been like, these are separate people. And what one does, you can't attribute to the other. And at some level, that's true. That said, I don't know if I fully believe that.
Will: [crosstalk] -question, but can we put, Justice Alito leans into it this. Just three other things in the letter I found charming, frankly. One is the beginning of a flag two argument. Justice Alito says, “My wife is fond of flying flags. I am not.” [laughs]
Dan: Yeah, I love that.
Will: And that goes on to the point, that she flies a lot of flags.
Dan: She is flying. I mean, she must own dozens of flags. I mean, he mentions all sorts of flags, plural.
Will: He says she has flown other patriotic flags, college flags, flags of various sports teams, state and local flags, flags of nations from which the ancestors of family members came, flags of places we have visited, seasonal flags and religious flags. That's quite a flag repertoire.
Dan: Do you know the noun that we would associate with this? Vexillology.
Will: It's the study of flags.
Dan: Yes. Study of flags. And Mrs. Alito is apparently a vexillophile.
Will: Yeah. Okay.
Dan: And possibly also a vexillologist to the extent that she's actually studying the flags rather than merely admiring them.
Will: And then, as the general point, he says, “My wife is a private citizen, and she possesses the same First Amendment rights as every other American. She makes her own decisions, and I have always respected her right to do so. She has made many sacrifices to accommodate my service in the Supreme Court, including the insult of having to endure numerous loud, obscene, and personally insulting protests in front of our home that continue to this day and now threaten to escalate.” And similarly, when he talks about second flag, he adds, vacation house was purchased by her own money. It is a place away from Washington where she should be able to relax. So, I take it there's a strong claim of, “leave my wife alone.”
Dan: Yeah. Again, I don't disagree with that at some significant level. I guess the thing that annoys me is less this letter in particular, and more the arguments that are made by the folks who are more in your corner of the world than mine, who basically just say it is inappropriate to think about this and that. This response, 100%, answers that any objection anyone could have. And I guess to that level, I don't agree that no reasonable person could still think there's some concern here, because I think you can draw it out a little bit. What if one of the Justices’ spouses put up a sign at their jointly owned home that just said, “All jews are complicit in genocide,” or something that explicitly suggesting bias towards one entire ethnic or racial or religious group of people?
Will: I don't know if this matters, but can we imagine the sign has a little note at the bottom that says “Justice Alito dissents.” [laughs]
Dan: I mean, in the first cut, no, because we don't have a version of that. So, in the first cut, and then let's just say one of the Justices puts out a short statement to the press like, “I don't agree with this sign.” Don't you think that certain level there is some obligation just to avoid association with certain kinds of messages that might threaten perceptions of objectivity and just saying, “Oh, I don't agree with it.” I don't know. I'm not sure that that's sufficient.
Will: I think it's tough. I'm with you that it's insufficient to just say nobody is allowed to care about what the family members of public officials do, even though we’re norm around that sometimes. But I also think it's just hard to-- I mean, I think I brought up before, what if you had a Justice whose spouse was just in politics? And I think I read in David Lat's newspaper, actually the great example of Justice Clint Bolick on the Arizona Supreme Court.
Dan: Yeah.
Will: Former founder of IJ talked about.
Dan: Yeah, yeah.
Will: His wife is a state senator. No, they have a complicated--
Dan: Yeah, that's actually fas-- Did you see his op-ed?
Will: Yes.
Dan: He had this fascinating op-ed there where he was part of the majority on that court that determined that the 19th century Arizona abortion ban was now in effect post-Dobbs and his wife, as a legislator voted to repeal it. And he wrote this very frank op-ed about this saying, “Yes, she did that, I did this and she did that. And there's no inconsistency. She's doing policy, I'm doing law.” It's the thing that we wouldn't see from a Supreme Court Justice under most circumstances, is it merely possible that someone would write a Justice Alito like letter. But here in a state that has judicial retention elections, there's maybe more of an obligation of a judge to speak directly to voters.
Will: Right. And I've read, ironically, both of them, I think, are facing serious political blowback about that. So, he's facing a serious election challenge by the left, upset that he thought the statute was still in force, and she's facing, I think, a plausible primary challenge by the right upset that she wants the statute to go away. And I guess that's an example of, I don't think we could just say, well, there's no issue. They have to address it, and maybe they have to be a little more careful.
Dan: I think that it would be concerning. I think this is the case with some lower federal court judges there. I believe that there are some, or at least have been recently some with spouses who were in politics.
Will: Maybe. I mean, I know certainly of several who had spouses who were in active litigation practices. And in some ways, those are easier to address because you can decide what you have to-- [crosstalk]
Dan: Yeah, screen.
Will: -and the lower courts recusals are a little less costly anyway. I was just thinking also about President Biden and his children. I think some people have said the president has an obligation to disown his children at some point because their continued misbehavior and invocation of his name is something he can't just declare, like, “I'm not part of that.”
Dan: Yeah.
Will: And other people say, it's just unreasonable to ask even the president of the United States to separate himself from his family.
Dan: Yeah. I don't know what it would mean to disown, to say, “Legally you're not my child anymore.” I mean, imagine that Jill Biden was going out and doing the stuff that Hunter Biden is accused of doing with Burisma and so forth without commenting on the accuracy of any of those accusations. But she was actually going out and talking to Russian oligarchs and was like, “Give me money. I'm married to the President.” I mean, I don't think it would be sufficient for the President of the United States to just say, “I don't agree with this.”
Will: I agree.
Dan: This is not-- [crosstalk]
Will: I think that's an easier or harder case in the sense that the first lady has an official legal position and a staff-- [crosstalk]
Dan: Well, she can give that up. She's giving it up.
Will: I think if the President said, “Look, I've ejected Jill Biden from the White House and she does not have any of the official legal duties of a first lady, that's going to be handled by whoever, somebody else now.” I think it's debatable whether or not-- [crosstalk]
Dan: [laughs] I think no reasonable person would think that that was okay.
Will: Well, I don't know what okay means, but what to do about it? It is like Nancy Gertner, I think, also had a commentary on this in an op-ed. She's a former judge who said, “Basically, if my spouse did this kind of thing, I would divorce them.” The implication being, I guess, that Justice Alito should divorce Martha-Ann if she's not willing to own her views.
Dan: It's like the George and Kellyanne Conway where she was a high up figure in the Trump administration and he was maybe the Trump administration's biggest Twitter critic. And ultimately, they did get divorced.
Will: I guess I'll say maybe I can't see clearly on this one as somebody who is married to a lawyer who has very different political views than I do. But I just think that's asking too much. I'm not saying it's easy, and I'm not saying there's no right to care about what happens at the Alito House that Mrs. Alito does, but I also think that's asking too much.
Dan: Yeah, but I do think that there is some obligation that extends to the Justice to try to really prevent one's spouse from doing things that threaten the perceived impartiality.
Will: But it sounds like he did, right? I mean, as soon as he found out [crosstalk] about the flag, he said to take it down.
Dan: What if she had a sign saying the “Supreme Court should Stop the Steal” at his house?
Will: And what if he said, “Please take that sign down?” At first, she didn't, and then she did, and we found out about three and a half years later.
Dan: Let's say we find out about it before the decision comes down.
Will: Before which decision?
Dan: Let's say there's some specific decision [crosstalk] issue and that the spouse has a sign saying, “The court must overturn Roe because abortion is against God's law.”
Will: Yeah. And he asked her to take it down, and she did after a day or two.
Dan: Or she didn't, in this case, let's say that she just says, “I won't take it down.” I'm trying to give us the limit case. I'm not saying this is-- I don't know, at a certain point I might say, “Look, under these circumstances, this is untenable. I'm not going to divorce my wife. But I do understand why this is creating this highly inappropriate appearance that it's just going to be hard for some people in the country to believe that I'm--” [crosstalk]
Will: I think if the Justice takes some public measure to distance themselves from that is credible, then they probably don't have to recuse. I agree with you that's not an obvious question. I wouldn't laugh at somebody who felt otherwise.
Dan: This is also just one that annoys me, because there's constant laments by conservative republican folks about double standards and so forth. And I think that sometimes those criticisms are fair. I do think that if Justice Jackson's spouse were doing something remotely in the ballpark of this. Fox News would like talk about it for days. It would just be a huge crisis. I think the House would impeach her. So, it just makes it a little bit hard for me to accept the increasing contortions. That said, goes to say, there's nothing to see here. If her husband had Antifa flag up, I don't even know if there is Antifa flag, maybe Antifa [crosstalk] flag.
Will: I wonder if the analogy is like a pride flag. If her husband had a pride flag up a couple years ago when she was in the DC circuit and then took it down.
Dan: What about if Justice Sotomayor, were married-- she's not married, but if she's divorced, I believe, but had put up such a sign, like, around the time of an Obergefell, I think that people would be super mad about it on the right.
Will: Certainly, people complain. I remember Justice Ginsburg officiated a same sex wedding, I think the summer before Obergefell was decided. And I remember there was discussion about that, and that's better and worse in different ways.
Dan: Yeah, that's interesting. I forgot about that one.
Will: I agree with you that there's been a change in norms on both sides. I think there was a time when there was much more of a norm of trying to keep the family members of public officials out of the public eye to make it easier for people to have lives.
Dan: Yeah.
Will: Maybe it's inevitable, there's nothing to do about it. And again, I understand why it's happened, but if there was a way we could nudge it back a little bit, I think that would be healthier, and it would lead our public officials probably be mentally healthier people, and that would be good. But maybe it's not going to happen.
Dan: Yeah, maybe, I guess, it also might be different when we're talking about politics versus judiciary. I mean, I think maybe I have even more concerns about political entanglements by Justices’ spouses than I do about political entanglements of politician’s spouses. I'm just not sure.
Will: How do you feel about the protests of the Justices’ houses? Did we talk about that?
Dan: I don't love them.
Will: I would think you would love them.
Dan: [laughs] Why would you think that?
Will: [laughs] I guess I would think a lot of these same arguments would say, the Justices are important people, they should not be free, they should not be insulated from the opinions of people who disagree with them. They can insulate themselves in a lot of ways that hard to stop. And so, this is the price they pay for exercising major government power.
Dan: So, I don't have a fully worked out answer for why I don't like them. I do think part of my concern is a slippery slope argument, that the more we tolerate stuff like that, the more we might start to see some risk of violence being directed at Justices. I think around the time there were the protests at Justice Kavanaugh's house, there was crazy guy that plotted to assassinate him, and I think committed attempted murder at least under the model penal code test for an attempt, maybe not under some other common law test for attempt. And so that's part of it, I think, also dynamic effects, I think it might actually just encourage Justices to be even more cloistered. Maybe they'll all live in gated communities now with heavy security. So, yeah, I don't know.
I do think in general I do want the Justices to be a little bit more aware of how their opinions affect real people and what the public thinks about their opinions. And that's why I think it would be great for the Justices to regularly, not every time, but then once in a while, maybe come, talk to Congress and so forth. I think that could be part of the interplay between the branches. We'll talk that in a second. But, yeah, the house thing--
Will: My house was protested once. Did you know that?
Dan: Really?
Will: I mean-- [crosstalk]
Dan: Bytheanti-Trump people or--
Will: No.
Dan: That's the great thing about you. I actually don't know who would be protesting you.
Will: I got a call from a pro-Trump person who threatened to have 500,000 people outside my house when the article went on SSRN. But that did not happen. No, when I was a kid, actually. So, they weren't protesting me.
Dan: Oh, okay.
Will: My dad was on the local board of public safety, in charge of some of the hiring and firing and disciplining of police officers and firefighters. And there was a point that the police had done something wrong and the belief that the board had not taken sufficient action to stop it. And so, my dad was gone, he was not home. There were these protesters outside yelling, and they came up and banged on our door and started looking in the window to see who was home, and we do.
Dan: So, how does that shape your views of this practice?
Will: I'm sure it biases me against it. It wasn't that dramatic or whatever, but I wouldn't have liked it if it were happening regularly.
Dan: Okay, I'll continue thinking about that one related to the thing I just said, we also got a response from the Chief Justice to a letter from Senate Democrats on the judiciary committee, Senate Judiciary Committee, Durbin and White House, who had asked him to come talk to them about the issues around Justice Alito. And he says, “No.” He had sent a similar letter when he was called to testify before the judiciary committee some months ago. And he says, “As I noted in my letter to Chairman Durbin last April, apart from ceremonial events, only on rare occasions in our nation's history has a setting Chief Justice met with legislators, even in a public setting, such as a committee hearing with members of both major political parties present, separation of powers concerns and the importance of preserving judicial independence counsel against such appearances. Moreover, the format proposed a meeting with leaders of only one party who have expressed an interest in matters currently pending for the court simply underscores that participating in such a meeting would be inadvisable.
Will: I think this is a good example of the slope you were describing to. I mean, it doesn't say this, but I think it is. There's a subtext of if I had any reason to believe the meeting with you was going to be productive, respectful and nonpartisan, I might think about this differently. But you and I both know what's going to happen, and I'm not going to play.
Dan: And I actually agree with what he did there. I think that's probably the right approach, but I'm sure I'll take some flak for that.
Will: He also reminded them that for 235 years, the court has let individual Justices decide recusal issues. So, I'm not going to [Dan laughs] [crosstalk] recuse.
Dan: And let them do so badly. Marbury v. Madison [laughs] where Chief Justice Marshall was a fact witness [chuckles] in the case.
Will: Have we talked about The Black-Jackson Feud on the show before?
Dan: No.
Will: Okay.
Dan: I mean, the most interesting version of this, which is described in detail in an article by my retired colleague Dennis Hutchinson. As in the 40s, I guess there were a couple of labor cases where one of Justice Black's former colleagues, I think, former law partners, was heavily involved in the case. And there were people, including Justice Jackson, who strongly felt that Justice Black needed to recuse, and Justice Black refused to recuse. And there was apparently some internal wrangling to some extent about, was that okay? I believe Justice Jackson eventually issued a published opinion or concurrence or something in Justice Black's failure to recuse, saying some version of, I understand Justice Black gets to decide, but I think this is really bad.
Will: I don't think I've ever seen that. It’s a great--
Dan: I’m going to find that.
Will: It's a great article. It's a great episode, and I don't have a strong view either way. I mean, again, I think you could imagine the court reaching a point where they changed the practice. I guess you could imagine an argument that, as a matter of liquidation or gloss or something, the court as a whole lacks the power to decide recusal issues for the individual Justices, I'm not sure, but it's an interesting.
Dan: Yeah.
Will: It's not a new problem, and that's the invocation of 235 years. And it's not always been the court's finest hour, but it's also hard to figure out what the best equilibrium would be.
Dan: What is the court's finest hour?
Will: Ooh. Little v. Barreme.
Dan: Why?
Will: Little v. Barreme, is a Chief Justice Marshall opinion from 1803, where it first sets up the basic norm of legality. It's a seizure arising out of the Quasi war with France, where somebody wrongfully seizes a ship and his mistake is reasonable and based on a misconstruction of the law and some instructions of the president, but the court says, “Look, the law is the law, and the fact the President told you to do it is not an excuse. Then that's just our job is just to apply the law.”
And then Chief Justice Marshall writes the opinion and even inserts a little personal aside that says something like, “I confess that the first bias of my mind was to think that the fact the president told you to do it must, at a minimum, give you immunity from damages, even if it didn't go so far as to legalize it. But after talking to my colleagues, I realized that just the system can't work that way, or else we don't have the rule of law.
Dan: Finest hour. Okay.
Will: What about you, Brown?
Dan: I don't know if it's Brown in particular, but I do think that the court's efforts to push back on Jim Crow segregation certainly have to be up there. Which case or which constellation of cases, I'd have to think about it. And I think that even taking all the caveats about how much did the court actually produce change versus actually cause a backlash that maybe indirectly produced change or the hollow hope, maybe they didn't do anything. I still think that there was great importance in a branch of government saying this form of odious discrimination shouldn't be permitted. But I'd have to think more about it maybe is there some moment there because there's things to like and to dislike about different ways the court responds at different times.
Will: TheUniversity of Chicago Law Schoolis giving an honorary degree to Randy Kennedy tomorrow at graduation.
Dan: Is he an alum?
Will: No, no. That's our first honorary degree in, I don’t know, 25, 30 years.
Dan: Just because you like him.
Will: The Chicago rule is we don't give honorary degrees on the basis of fame or affiliation. They have to be on the basis of scholarly merit. So, we've refused requests by foreign royalties and big donors and so on to get honorary degrees, but it's just on the basis of his work. And so, he's been around, and he has a new book coming out that's about this. Basically, thesis of the book is people forget how much the civil rights movement accomplished. At this point, people just undersell, just how much and important the legal changes were and how good they were, and really walks through in detail what they were and how they happened.
Dan: That's awesome.
Will: I think it's great.
Dan: Okay. It sounds contrarian. I like contrarian stuff. He's got some other contrarian stuff, so pretty cool. All right, as we tend to do start from the inane and go towards the more substantive. So, heading in the direction of more substance, we had interesting shadow docket order from Justice Gorsuch, maybe not altogether. That’s interesting because it's something we've seen before, but basically there was another case coming out of Florida which permits the use of six member juries in criminal cases.
Will: Didn’t the court hold this unconstitutional in Ramos--?
Dan: Six person juries? No. There it said that you have to have unanimous juries.
Will: Okay.
Dan: So, this is now-- [crosstalk]
Will: Ramos said if you have 12 people, it’d have to be unanimous, but you can still have-- laughs]
Dan: Yes. And the court had already held six person juries are constitutional, but they have to be unanimous. That had been held previously. But current doctrine still allows the use of six member juries. Five is not okay, six is okay. And you can see why the defendants would prefer 12. All you need to do to avoid conviction is to convince one person, not to convict, and so six makes-- [crosstalk]
Will: And makes therule that five is not okay, but 12 is not required comes from the six-person jury clause, the Constitution.
Dan: [chuckles] It comes from a fuzzy due process and stuff.
Will: Because historically a jury was 12. Blackstone said 12 men good and true, or 12 good men and true.
Dan: Yes. And the court had said that six is okay. And then in Ballew v. Georgia, an opinion by Justice Blackmun, was not a majority, he wrote this opinion that he [laughs] was only to get one Justice, Justice Stevens to join, was looking at social science and stuff and was the group is going to be less deliberative when it gets too small.
Will: Does the social science suggest that six is the magic number or just that it increases over time and the court had to figure out what to call it.
Dan: The latter. And then, as Justice Gorsuch notes in this opinion. So, he's got an opinion dissenting from denial. He wanted the court to take up this issue. He has made this case before. He did this two years ago in a similar dissent from denial called Khorrami v Arizona. And he notes that the case that allowed the six member juries pointed to empirical stuff and then said, “Look, that empirical research was very quickly disavowed or shown to be unreliable and this is dumb.” And its reasonably persuasive that this is something that matters, that there's pretty good formalist legal argument that it's wrong, and that maybe the court should at least take a closer look.
And given that the court, why is the court not willing to do this when they were willing to do this in Ramos v. Louisiana, for the point about juror unanimity. I don't know, that case was a little different because there had never actually been a majority holding of the court saying that states don't have to follow unanimous juries. There just been this weird thing with Justice-- [crosstalk] Not even, this weird thing with Justice Powell where he split the difference. It was arguable that there was no stare decisis effect of that. Obviously, that was controversial in the court. There is a clear majority opinion allowing it, but hasn't been able to persuade his colleagues to do that. I mean I would imagine that some of the liberal Justices with the issue to come up would--
Will: Although Justice Kagan dissented in Ramos stare decisis grounds where, as you say--
Dan: I was going to say in the first instance would [crosstalk] agree. So, I was going to say, is that presumably part of the reason why we're not seeing more interest in this is for that defensive liberal stare decisis position, if we don't have a good argument for not overruling other cases if we're going to do this here--
Will: Yeah.
Dan: Although, I guess I do believe if the court granted, I don't think all of the liberal Justices would stick with precedent there.
Will: Yeah.
Dan: Odds on either some combination of Justices Sotomayor or Jackson would overturn precedent, but maybe they just don't want to open that can of worms so they can't be accused of inconsistency.
Will: I mean, I've loved this issue for decades at this point.
Dan: How many decades?
Will: Two, I guess.
Dan: [laughs] I mean, not three, I assume not three. [Will laughs] I think you--
Will: I don't.
Dan: Yeah. I think you were reading Supreme Court opinions when you were like seven but--
Will: The first Supreme Court opinion I read is Bush v. Gore.
Dan: Okay.
Will: I printed it out at home-- [crosstalk]
Dan: You were 17?
Will: That was my freshman year of college, I think, So I was 18.
Dan: 18? Okay.
Will: Yeah.
Dan: You were four in college.
Will: Yeah.
Dan: Okay, so we're the same age.
Will: But the one thing I never understood is how we decide which historical aspects of the jury are required by the jury trial clause and which aren't. So, Blackstone said, “12 good men and true,” we think the 12 is required. We think the men is not required and indeed, forbidden.
Dan: Yeah.
Will: And I don't know what we think about the good and the true. Is it constitutionally required? There'd be some character test to be on a jury otherwise, I don't know.
Dan: Yeah. And all sorts of other features. I mean, the ‘men’ thing, you can at least say we have supplanted that, but other constitutional amendments have supplanted that, and maybe that would have been required at one point.
Will: It would be weird to say that female jury service was unconstitutional in 1860.
Dan: Yeah. I mean, and maybe there would be no plausible argument that was a violation of defendant's rights. I don't know. But I have this paper with Will Ortman called The Informed Jury, which we say, and it's not a fully originalist paper. But we really go into some history there. But it was an assumption and a background way this system worked hundreds of years ago that the jury knew the stakes. They were like, “This is a felony. If we convict, this is going to make the defendant at least eligible for capital punishment.”
Will: Right.
Dan: Right. I mean, maybe they'll get-- it won't actually be carried out. Maybe there'll be a commutation, pardon, who knows?
Will: But they have a ballpark sense of the seriousness.
Dan: Yeah. And now, they have no idea. They have no idea because we don't have this binary difference where it's capital-- it's a death sentence or not. They often have no idea. My wife was on a jury a couple years ago, and it was a second-degree murder. And the other jurors, I think it was a first-degree murder trial, but not a capital case. And the other jurors voted for second degree because they thought first degree would make the person get capital punishment. And she had been admonished by the judge, you cannot tell them stuff about the law. So, she knew that the jury hadn't been death qualified, and so-- [laughs]
Will: Obviously it's not a death case.
Dan: Yeah. But she just couldn't say that. And so that was a case where ignorance actually helped the defendant and in other cases it goes the other way.
Will: Yeah. I mean, it's a great paper and how to think about which of these deeply rooted assumptions about the jury system are also constitutionally hard coded against, all the states and not-- I have a good--
Dan: Yeah. I mean, because there it's not like, Blackstone didn't say, and this is part of the jury. It just was a background feature of the way the system worked. And then we've changed that background feature and that it has this intended or unintended consequence of depriving the jury of a bunch of information that might be relevant to its task. And that might be highly beneficial to defendants because our postulate is that given the severity of many sentences, some number of jurors would actually be disinclined to convict were they to know the stakes. But that is persuaded thus far zero justices on the court, although the issue has not risen. And I'd like to think that if Justice Gorsuch ever got his hands on our opinion, he might buy it.
[laughter]
Dan: You're laughing at that. I don't love that.
Will: No, it's good. I think I like your chances.
Dan: Okay. But it's never going to come up. No circuit split, nothing like that. And the court has previously said quite unequivocally, that courts are not supposed to tell the jury information about punishment.
Will: Right.
Dan: Opinion by Justice Thomas to that effect. Okay, so merits opinions.
Will: Yeah.
Dan: Let's talk about those. Let's start with Alexander v. South Carolina State Conference of the NAACP.
Will: Okay. Big racial gerrymandering case from last week, addressing whether the South Carolina legislature used race more than it should in drawing the districts there.
Dan: Or at all. I mean, that was the factual dispute. I mean, the law says they're not allowed to treat race as the predominant factor when drawing districts. They can use partisanship and not race as the predominant factor, even though those two things are highly correlated. But in this case, the state said, we didn't use it at all.
Will: Yeah. And this is an appeal from a three-judge district court. So, it's a mandatory jurisdiction case, where there's been a trial in front of not one judge but three judges. So, in a way, it's a weird case because it's a three-judge district court heard a bunch of evidence and witnesses and so on and concluded, as a matter of fact, that it believed the map drawers had used race. And a 6-3--
Dan: Despite their denials.
Will: Yes. They said they didn't. So, he said-she said, or he said-he said, or they said-they said. And I think everybody agreed they had information about race. They could have used it. They may or may not have used it. And the Supreme Court concludes 6-3, as a matter of fact, that the district court was clearly erroneous to find that they had used race. Justice Thomas concurs in part of this. Not all we can talk about that, but so in its way, this is the kind of thing. It's a fact bound question just about the evidence in this case, the court might not normally take, except that it has to take these kinds of cases.
Dan: Yeah.
Will: It also, this case exists against this slightly weird legal backdrop about election law. Maybe just worth mentioning, which is that for a long time, nobody knew whether political gerrymandering was 100% totally constitutional when the state legislatures did it. And so, the legislatures had some incentive to, if they wanted to do partisan ends, to do them using race instead, because they were allowed to use race to some extent, or at least that'd be unclear. How much are we doing this? Creating this new district this way to comply with the Voting Rights Act versus how much are we doing this just because doing it will help destroy a Democratic district, help Republican district.
Now that it is clear that political gerrymandering does not create a federal political question or does not create a federal justiciable question, maybe this issue won't come up as much because the legislatures will always just say, “We're just in this for the partisanship and we don't care about race, if that's true.”
Dan: Although it is obviously still coming up. Right?
Will: Yeah.
Dan: It came up in this case.
Will: Yeah. Although that may be partly just a slight hangover. I'll be curious to see if we got a lot more cases like this or whether they're at an end.
Dan: But I imagine some number of them will still be brought. I mean, more so, because this will be your only, if there's no longer any avenue to challenge a gerrymander on political grounds. And so, if you want to challenge it, you have to do it on racial grounds.
Will: Sure, but it will-- so, we interested to see lots of things like do legislatures even bother to look at racial data anymore? So, one of the disputes in this case is Justice Alito says, “Look, it's just not very plausible they would look at race because ultimately what they mostly care about is party screwing the Democrats.” And they had plenty of information about partisanship, so they didn't need the race data. That's their story. We find that plausible. And Justice Alito adds to that, “I don't know where this comes from. A presumption of good faith.” [laughs]
Dan: Yeah.
Will: So, we just assume that the legislature, when they say they didn't use race, is right about that. And apparently our presumption sufficiently strong that it overrides the presumption that the factual findings of a lower court are correct. Now, Justice Kagan says, “In this case, there's a little more reason to suspect they might use race because the 2020 election cycle was sufficiently weird that your normal data about partisanship doesn't work as well, given Covid and Trump and stuff.” And so, in this case, they had more reason to use race, even just race as a tool of partisanship, race as a way to get to partisanship because that might give them better partisanship data. There are various reasons maybe not to believe the states protestations. [sighs] I don't know. Do you have a view about that?
Dan: About whether they will continue to do so.
Will: Or just about the facts of this case?
Dan: It's one of those things that I find frustrating because I feel like I read the majority and there's stuff in the majority as it describes the factual findings and the experts, that seems persuasive. And then I read the dissents and there's stuff in there that seems persuasive. And I listened to the argument in this case, it did seem like the state was really struggling to come up against the clear error standard. I mean, that is a tough standard. That said, as the majority said, it's not a rubber stamp. You do have to have some room to overturn judgments.
And then there's this question about, should the plaintiffs have to put up a map of their own to show that it's different? And there's a case that suggested that maybe they do, but then also said, “No, you definitely don't.” I mean, so I don't know. It's a frustrating case because it is one that ends up splitting the court along classic partisan lines, which is not my favorite.
Will: I assume we're going to talk about this more in a second. I like Justice Thomas doesn't join some parts of the majority opinion, the parts that are the most fact bound.
Dan: Yeah.
Will: And says, “Although I find the analysis in part 3C persuasive, clear error review is not an invitation for the court to sift through volumes of facts and argue its interpretation of these facts. And the court is exceeding the proper scope of clear error review. He joins anyway, some other parts because to the extent the majority says, we have these rules, like you probably have to show an alternative map or we have a strong presumption of legislative good faith. Those are in a way, it’s easier to say the lower court violated those because it’s just almost a disagreement about the legal standard or the legal standard that frames the factual standard rather than requiring you to sift through the expert reports.
Dan: Yeah.
Will: I don't know exactly where those rules come from. So, I end up being a little bit equipoise as well. Justice Kagan had previously written an opinion that said you don't need to show an alternative map, that in turn ignored an opinion that said you kind of do. And so now she's mad that the majority is ignoring the opinion she wrote that ignored the previous opinion they liked better, which is one of those classic stare decisis is good for some and not for other things. And Justice Thomas joined the majority of Justice Kagan's previous opinion but had his own slightly idiosyncratic views. So, the actual question that matters, the trial, is the thing I think is the least interesting about this.
Dan: Yeah. So, I think the thing that is interesting is Justice Thomas's concurrence in part. Right?
Will: Yeah. I think so.
Dan: Yeah.And this suggests a new view for him. Do you want to explain this?
Will: Yeah. Well, a couple of views.
Dan: Yeah.
Will: I think Justice Thomas has essentially two different claims. Even one of them may have subparts. But first, Justice Thomas now believes that racial gerrymandering is not a justiciable constitutional question.
Dan: Yeah. These claims which have been a thing for some time, are just not a thing. Should not be a thing anymore.
Will: Yeah. Now, this is adjacent to some views. Justice Thomas already has this famous concurring opinion in a case called Holder v. Hall now, 30 years ago, where he thinks that, as a matter of statutory law, vote dilution claims should not be a thing under the Voting Rights Act, which is for somewhat similar reasons. They're hard to manage, the Voting Rights Act should be about questions like, do you get to vote? And the questions about how do we move the voters around are an order of magnitude more difficult to resolve and not covered and so on. But previously, he had not denied there was at least some outside constitutional standard.
Now he says all the same concerns there, and, frankly, the same concerns about why political gerrymandering is not manageable lead him to think that racial gerrymandering claims are not manageable. I mean, there are two things I find funny about this opinion, apart from the merits, which we could talk about, apart from the question of whether it's right or wrong. One is the court started this doctrine in some ways, or the doctrine everybody cares about was started by the conservative Justices in the 90s in a case called Shaw v. Reno, where the court started striking down majority-minority districts on the grounds that they were racially gerrymandered in favor of African American voters. And said, “No, no, no this is racial gerrymandering.”
So, for a long time, the court's racial gerrymandering jurisprudence has mostly been a tool for the conservatives to invalidate more liberal districts. And now the doctrine has started to be used more by liberals against conservatives, in part because of the Rucho [unintelligible [01:01:37] we were just talking about. And now Justice Thomas doesn't like it anymore. So, you might question why it took until now for Justice Thomas to get off the train.
Dan: Yeah, that's interesting. I mean, obviously, the underlying dynamics of Voting Rights Act cases have changed.
Will: Yeah.
Dan: Whereas it seems like that the court, the majority, has reined in the Voting Rights Act, and there might even be support for reining it in significantly further, possibly under equal protection principles. So that may be part of the story. I was trying to figure out the limits of this view that he's advancing, though. And how far they go?
Will: So, there's an important limit, he suggests.
Dan: Yeah.
Will: There's an old case called Gomillion v. Lightfoot.
Dan: Yeah, that's where I was going with that.
Will: Okay. This is so quaint, the egregious gerrymandering was drawing the boundaries of a city with 17 sides rather than a nice circle or square. It excluded African American voters. And Justice Thomas says, “That one still might be okay because there, the excluded voters couldn't vote at all because there was incorporated municipality.” An incorporated municipality so, you're just letting them in or out of the voting booth. And his view is that's the right to vote, is the right to go into the voting booth and cast a ballot. So, he says that still might be a claim, but taking two different just to-- all voters in South Carolina get to vote for Congress, the only question is, do they vote in this district or that district? And that's where Justice Thomas thinks, we can't draw coherent rules about, like, “Do you have a right to vote in this district or that district?”
Dan: Yeah. And so, I was wondering about this. So, there's no constitutional requirement, as I understand it, that a district be physically contiguous. You could have at large voting for--
Will: Statutory requirement, but not a constitutional requirement.
Dan: Yeah. So would it be constitutional to say, there's one geographic area, and let's say it's a city. It's a city that's big enough to have three representatives in Congress. And so, the state says, “You know what? We're not going to chop this up into three different areas. We're actually going to keep one mega district that covers the whole territory. But we will assign voters, voter by voter to district one, district two, district three.” Okay. And this is-- [crosstalk]
Will: [crosstalk] -conceptual districts.
Dan: Yeah. Conceptual districts. And this city is one third African American. And we say, “Okay, white voters, half you are in district one, next half district two, and then black voters, you vote in district three.”
Will: I think Justice Thomas’s view is that would not be justiciable.
Dan: [chuckles] Would it be different if it was an explicit?
Will: I'm not sure. So, I [crosstalk] thought through whether, if it works rather than being done through lines on the map that have a disparate impact or a disparate motivation, maybe he would say that one is more justiciable because it's just more clear. There's an easy standard for what's going on to say you can't raise the criterion. But I take it if the state then came back and said, “All right, here is a list of all six million voters, and here's a list of which districts they're in.” Number one, and they list two million people, number two, two million people. Number three, two million people. Even then, Justice Thomas might now say, “Well--"
Dan: And even if we knew, if they were saying in media reports, “Yeah, we looked at the census data about who's members of what race,” and I don't know, maybe not the census data, I don't exactly know which data would be that identifying and that's what we did.
Will: Right. So, here's the thing I was going to say in sympathy for Justice Thomas. After Shaw v. Reno, there have been decades of election law scholarship pointing out that it is really hard to figure how to make these gerrymandering claims work conceptually, because it's really hard to explain who has standing and why. Like the injury to a gerrymandered voter is either: I was put in a district where I'm never going to win, like where I'm always going to be voting for the loser.
Dan: Yeah.
Will: Or sometimes I was put in a district where I'm always going to be voting for the winner, but I'm not very important.
Dan: Yeah.
Will: And both of those, lots of us, regularly cast votes for people who are never going to win. And everybody who supports a third party is in a situation where we're constantly voting for somebody who's never going to win. And that's just the way it goes. And trying to come up with a coherent explanation for why sometimes being in that position and not others as an injury is hard, especially because then also there are these so-called filler people. So, to make a majority minority district work, you make it majority African American, but you can't make it 100% African American because that's packing. So, you've got to add filler people. You got to add white people whose job is to lose. Their job is to just be in there, “Fill out the district,” but let the majority elect their candidate of choice. And that's not only okay, that's considered required by the Voting Rights Act.
Dan: Wouldn't this bring us back to the not unequal protection case but that case we talked about Muldrow a few weeks ago?
Will: A little bit. Yeah.
Dan: One of the things we talked about is sometimes the injury is just the different treatment, right?
Will: Right.
Dan: And so, you might just say, “The fact that this decision has been made because of my race is an injury.”
Will: Right.
Dan: That doesn't strike me as crazy.
Will: No. I mean, you could instead adopt a full color blindness view, which is something like, the entire system is illegitimate if people's race was considered. Everybody has a right, just like not to have their race. And this is where you might go in response to your hypo, at least you have a right not to have race be the legally dispositive factor.
Dan: Yeah.
Will: So, you can't-- yeah.
Dan: Yeah. That's also a weird thing about his opinion, which is like, he says, “Race should never be taken into consideration. It's not enough that it not be the dispositive criterion.” And the fact that our jurisprudence has evolved in such a way that you may only make out a claim if race is the predominant factor is a reason to not even consider whether they did this at all. It was weird.
Will: Well, it is, and it's going to get us to part two. I want to flag one thing. So, Justice Thomas would say, I think he's not saying that it's okay to engage in racial discrimination. It might still be unconstitutional, but he's saying, it's not a thing that the courts can coherently do. Justice Alito, in the majority opinion, commits some weird slippage about this. I don't know if you caught this.
Dan: I usually don't catch enough--
Will: The first paragraph, the opinion says-- [crosstalk]
Dan: I didn't read that far.
Will: Okay. [chuckles] That summarizes how we got here. And he says that, “As far as the federal constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting.” That's not an accurate summary of the law before now. Before now you would have said, “As far as the federal courts are concerned, a legislature may pursue partisan ends because the federal courts will not stop it because it's a political question. But that doesn't mean it's okay or even constitutional. It just means we're not going to stop it.”
Dan: I thought the Constitution was just whatever the court said it was.
Will: Well, so does Justice Alito apparently.
Dan: Apparently, yes. I think he's a judicial supremacist.
Will: I mean, most of them probably are. So, it's important to keep an eye on that. I think Justice Thomas apparently joined that part of the opinion, but Justice Thomas isn't necessarily subscribing to that. And that brings us to part two of the Thomas opinion, which is in some ways even more exciting, which is about equity.
Dan: [laughs] Yeah. Also, in my continuing quest to note non-substantive things, Justice Alito puts that in Roman numeral I of his opinion, which is the first paragraph, that's usually not how we structure these things. Usually there's an umbrella paragraph that doesn't have a Roman numeral.
Will: That's interesting. And part one is very short. Part one is just paragraph--[crosstalk]
Dan: Part one is exactly what you would normally be the non-numeral section of the opinion. Go figure.
Will: Yeah. Okay. Interesting. He still has a dinkus though, right?
Dan: [laughs] He has a-- Is it a dinkus?
Will: No, I mean just--
Dan: It's the single. No, no, it's a dinkus.
Will: But it's just the-- what do they call it? The language they dispose of the case.
Dan: Yeah.
Will: Yeah.
Dan: But it still has one.
Will: No, the good thing is this aware that you entered another paragraph of assertions about the law that follow from the above, but sort of don't.
Dan: Okay.
Will: All right. Thomas also says, “As a matter of equity, the courts have exceeded their equitable powers in engaging in map drawing.” And this is a claim that's not limited to race, it's a claim that would be true of remedies in election law more generally. And I think last term when the court had Moore v. Harper.
Dan: This is sort of your view.
Will: Yeah. Well, my view, this is-- [crosstalk]
Dan: I think this is your view of the independent state legislature doctrine, which is not exactly the same thing, right?
Will: Right. My view was that state courts in cases about the election, state courts in federal [crosstalk] cases shouldn't engage in map drawings has--
Dan: Because it has to be done by the legislature or the state.
Will: My view was bolstered, I thought, by the fact that federal courts could do so. So, it's not, there's nobody who could do so. The federal courts could, but the state courts couldn't. Justice Thomas wants to take that further and say, “No, the federal courts can't do it either.” And there's a whole line of case law and--[crosstalk]
Dan: State courts could still do it for maps for state office, right?
Will: Sure. That would not be a federal question, I take it.
Dan: Yeah.
Will: But unless there's some weird due process thing that we haven't thought of yet. But this would say federal courts in general can't do it because equity is historical and this exceeds with what courts could traditionally do. And I will say, I mean, as a historical matter, it's true that there are lots of cases where state courts had election law cases in the pre Brown, pre Reynolds v. Sims era and didn't think they could do this kind of thing. And there was a massive remedial shift during the Warren Court.
On the one hand, on the school segregation side, on the other hand, on the voting rights side, and on the third hand, on a whole lot of other civil rights cases where federal courts started engaging in much more invasive, structural, Quasi legislative injunctions. And Justice Thomas is saying, “I'm not so sure about that whole thing.”
Dan: Do you agree on this? You like historical limits on equity?
Will: Do I? I'm sympathetic to some of what Justice Thomas says here. So, there's a methodological question, how do we think about equity? In which I know most of what I know from Sam Bray. Sam Bray says in his article, the Supreme Court's new equity, and a couple other cases that there's an intermediate position, which is not like every remedy has to be the same remedy that existed at Westminster. But it's also not like courts can do whatever's fair or whatever they think is necessary to get the job done, but draws on equitable principles at an intermediate level of generality, which seems right to me. Justice Thomas is taking the strict view, Justice Thomas is taking a view, more like, “They didn't draw maps in Westminster, so we can't do it now.” So, I think that goes too far.
Now, I do think there are still some reasons to be concerned about some of these map drawing, some of these map drawing does go too far, but I'd need to work it through more carefully and think about what the principles are and how to extrapolate from them. Interestingly, even Justice Thomas concedes that Brown too was okay. He says, “After Brown, we engaged in this very broad equity. In doing so, we took a boundless view of equitable remedies” that he criticizes. Then he says, “That understanding may have justified temporary measures to overcome the widespread resistance that dictates the constitution prevalent at the time.” But as a general matter, it was a problem.
Even Justice Thomas is willing to say, “I guess we can do it sometimes when it's a really big problem.” So, I'll say I'm on board for rethinking and not just taking for granted that the courts can do whatever they want here. But I'm not sure I'd go as far as Justice Thomas.
Dan: Okay, so we'll see where that strain of his jurisprudence goes. For more on these issues, my colleague, Travis Crum has been writing about some of the stuff. He's an expert on the Fifteenth Amendment. He has an article that's forthcoming that I think is not online yet, but that's called The Riddle of Race-Based Redistricting, where he actually is going to ultimately land, I think, in a different spot where Justice Thomas would land. But he does say that there's not great historical support in the original understanding for racial gerrymandering claims, that there is some historical evidence in favor of vote dilution claims, but not for racial gerrymandering claims. And that would actually support Section 2 of the Voting Rights Act under the Fifteenth Amendment. And so, that's pretty interesting.
I mean, one point that comes up that I think is, Justice Thomas talks about is how the Fourteenth Amendment does seem to create its own remedy for racial exclusion in voting, that doesn't forbid it. It just creates a reduction in representation remedy, which suggests that maybe you can't interpret it to be this hard rule against restricting the vote on the basis of race, and maybe that could extend further, right?
Will: Yeah. Well, I guess I think there's no question that the Fourteenth Amendment was not supposed to be the main font of Voting Rights Act of voting rights, even though Fourteenth Amendment Section 1 was not supposed to be, even though it's become that some combination of Fourteenth, 2, and the Fifteenth Amendment were the ones originally doing the work. And this is part of, again, Travis's great work and research agenda, has been trying to refocus attention on the Fifteenth Amendment, the actually relevant amendment, which then contains a lot of useful historical insight and so on about how to make sense of that. Of course, that would potentially undercut decisions like the one person, one vote Reynolds v. Sims decisions, because those are not directly about race, [crosstalk] it’d be a little bit more at sea about where to justify them at all.
Dan: Yeah. And it makes me wonder that if I assume Justice Thomas actually doesn't believe in Reynolds v. Sims, and if that's the case, you take my weird hypo before about the conceptual districts, and then you also combine it with getting rid of one person, one vote-
Will: Yeah.
Dan: -for state offices. Could Alabama say, okay, we've got one conceptual district of all black voters in the state, and then we've got 18 conceptual districts of all white voters in the state, even if there are the ratio of the two voters is far different from 18 to 1.
Will: Yeah. I agree that if you get rid of the one person, one vote constraint, it becomes a lot harder to figure out how that works. That said, if you get rid of the one person, one vote constraint, a lot of things change. One of the weird effects of one person, one vote is to require a lot more churn. The one person, one vote is what requires us to have new rounds of redistricting litigation every 10 years. It also requires us to ignore state law constraints on redistricting. So pre one person, one vote, more states would say things like, you have to keep counties intact, and that just limits your degrees of freedom and carving things up. Now of course-- [crosstalk]
Dan: We are getting rid of it, I don't think, would cause states to just say, “Okay, we're not going to redistrict anymore.” I think the majority party would just continue redistricting to give themselves more an advantage, and they would do so more aggressively.
Will: Two different questions, what would happen now if we got rid of it? And what would have happened counterfactually if we'd never gotten rid of it? So, it's also true that at the time, states did have required redistricting that their state legislatures just refused to do. I think in Baker v. Carr, one of these cases, in fact, the Tennessee Constitution required regular redistricting and the states just didn't do it. And congressional redistricting would still sometimes be required because the congressional representation has to change every 10 years based on the census so that, if your state didn't have the same number of representatives as it did before, you have to figure out what to do with the extra district.
Dan: Yeah.
Will: But you wouldn't necessarily have to have every school board and city council seat be drawn every 10 years. And it's just complicated I think what would happen.
Dan: Okay, so more to talk about. Should we go on to the next case? I have less to talk about for the next one part because this is one that garners a fair amount of consensus on the court, we have-- Where did it go? I lost my opinion. Where did it go? Okay. National Rifle Association v. Vullo.
Will: Vullo, I was not trying to pronounce it.
Dan: What did you say?
Will: I don't know, Volo, Vuio because that's the Spanish L or-- [crosstalk]
Dan: I didn't look it up. Okay, First Amendment case, and it is about when can state actors pressure induce, coerce other private actors to do stuff that might harm you as deterrent or punishment for your exercise of your First Amendment rights.
Will: Right. Or, as I said, somebody else's First Amendment rights. [crosstalk]
Dan: Well, no, I mean, you is the third. I thought I phrased that right correctly. So, it's like, when can you-- they do this to other people that affects you, right?
Will: Yeah. Okay. So, the authorities in New York don't like the National Rifle Association because they think guns are bad and kill people on the National Rifle Association.
Dan: Well, guns do kill people.
Will: They think guns kill the wrong people. And the National Rifle Association think guns kill the right people. Is that better?
Dan: No, that's-- [laughs] Guns clearly kill a large number of the wrong people. That's not a controversial claim.
Will: All right. There's a disagreement on what gun policy should be, and the National Rifle Association has one view about it, and New York has a different view. And authorities in New York told various insurance companies to stop doing business with the National Rifle Association.
Dan: Who had both their own insurance and then offered insurance products on a discount to their members in a way that all sorts of organizations do. If you're a member of a state bar, you're always offered discounts on liability insurance, things like that.
Will: Yeah, I don't join those things.
Dan: You don't really practice law.
Will: Also true. But as a matter of principle-- [crosstalk]
Dan: You area member of a state bar, aren't you?
Will: I mean, I'm a member of the State Bar Association, which-- [crosstalk]
Dan: No, no, I mean the actual-- are you member of the DC Bar?
Will: I am member of the DC Bar and the Illinois Bar. I have a license to practice law.
Dan: Yeah. Whenever I get renew, they try to sell me additional products. I'm not a member of any kind of bar association.
Will: Okay. Anyway, this is all at the motion dismiss stage. So these-- [crosstalk]
Dan: You know you have to renew your membership, right? You have to pay like every year, you know that, right?
Will: Yeah. I do that.
Dan: Okay. I'm just worried because you have the thing with the Supreme Court bar.
Will: [laughs] You can renew online, just click a button and pay them some money. If you could do that with the Supreme Court bar, it would be no problem. I mean, I even do the CLE.
Dan: I see. That's why I don't join another bar. I don't want to do the CLE.
Will: Well, I didn't figure that out when I joined the Illinois Bar. I'm going to start teaching CLE to get out of it but--
Dan: [chuckles] That only works in some jurisdictions, is my understanding.
Will: It works in a-- it's the professional responsibility credits that always get me. So, I'm going to start teaching professional responsibility CLE, so I can get out of it.
Dan: You're very unprofessional and very irresponsible.
Will: Anyway, the allegations in the complaint are basically that these insurance companies had their own regulatory problems with the state. And so, the state said, “We'll look the other way on some of your other various violations of--" [crosstalk]
Dan: Some of which related to the NRA, some of which not. I guess this NRA product, the NRA was at least in trouble because it didn't have-- it was like offering this and didn't have the right, didn't check the right boxes or whatever.
Will: Right. That's the threat or that's the carrot or the stick or however you want to think about it. And the question is, does offering that deal to the insurance companies violate the First Amendment?
Dan: Yeah. I mean, it's both the inducement and a little bit of a threat. It's like, “We might do stuff to you that'll be bad. Also, we will let you off the hook for other stuff if you do this.”
Will: Right. I mean, those are two sides of the same coin, right?
Dan: They are. I mean, as far as the law is concerned, they are. But I think that they are different kinds of threats/offers. It's like, “We'll give you a goodie,” versus, “We will harm you.”
Will: Although the goody is, “We will not harm you.”
[chuckles]
Dan: Yeah, but I mean, I guess it depends on what exactly the harm is. But a unanimous majority opinion, Justice Sotomayor, this is at the pleading stage. So, based on the taking the allegations as true, NRA has stated a First Amendment claim. This is also-- I mean, fact bound is not exactly the right word, but they're not radically changing the legal standard. They're saying, “The basic legal standard that the courts use here more or less makes sense. Look at some factors, but here they did it wrong.”
Will: Yeah. Well, there's a particular style of case where it's like, there's basically one particularly relevant precedent, a case called Bantam Books, where a prosecutor tried to strong-arm a bookstore and the court said it was unconstitutional. And so much of the opinion is written--
Dan: [crosstalk]-had to strong-arm the distributors.
Will: Yeah, exactly. Sorry. So much of the case is like, “Well, in Bantam books, we said you can't do this. This is a lot like Bantam books.” [crosstalk]
Dan: Yeah. In a way that harmed the authors of the books and publishers of the books.
Will: Yeah. Right. Again, they are indirect. This is like that. And here are some reasons the lower court thought it was not like that, but we think it is like that. It's like a little bit more common law-y-- [crosstalk]
Dan: Yeah.
Will: And maybe that's what makes it easy to make it unanimous. Maybe different people would have different frameworks they bring to this, but we're mostly unanimous.
Dan: Yeah. So, one weird thing about this is the fact that the NRA petitioned on two issues.
Will: Oh, good. I was hoping you would talk about this.
Dan: Yeah, I mean, this seems like maybe the most important thing to talk about, because the Second Circuit said, “First, this doesn't violate the Constitution as alleged. Second, even if it did, this is a civil suit, so there would be qualified immunity.” Your favorite doctrine.
Will: Yeah.
Dan: Okay. The court only grants review on the first one of those. Was there a constitutional violation question?
Will: Yep. So, this is another one of these-- we just talked about this recently in the copyright case context. They didn't rewrite the QP, I don't think, but limiting the cert grant in a way that they liked, just the case they wanted it designed. Okay. So limited to the first question. Now, we also talked about this, I think, when we talked about Fourth Amendment cases and advisory opinions.
Dan: Yeah.
Will: The lower court has already held that even if this is unconstitutional, it doesn't matter. The NRA can't get a remedy because it’s qualified immunity.
Dan: Yeah.
Will: And the Supreme Court is not reviewing that holding.
Dan: Yeah. I mean, there's, like, an already given alternate ground.
Will: Right.
Dan: So, not just some hypothetical one.
Will: Right. So, you might think and apparently, Vullo argued, that makes this case actually almost outside of the court's jurisdiction because it's set up as an advisory opinion. The court is answering a question that it has already been determined does not matter and is not reviewing the lower court's decision that it does not matter. [crosstalk]
Dan: And if this were review of a state court decision, that would clearly be true or at least possible. Maybe not, if you buy the reason that the court gives here.
Will: Yeah. Okay. So, the court's argument is in footnote 3, the court says, “We do not lack jurisdiction because the Second Circuit is free to revisit the qualified immunity question in light of this court's opinion. The NRA could still obtain effectual relief. And so this is not merely advisory.”
Dan: Yeah.
Will: Even though we've just not decided to review the qualified immunity holding, maybe the Second Circuit will change its mind.
Dan: Yeah. I guess the argument for that is these two things are entangled. If the Second Circuit had said, “You lose because no constitutional right, and you also lose because you defaulted and didn't file-- didn't amend your complaint when you're supposed to,” or whatever. Right?
Will: Sure.
Dan: Some purely procedural thing that had nothing to do with the constitutional holding. I think a stronger argument that the court shouldn't review that.
Will: Yeah. So, I'm just trying to figure out how this would work. So, the Second Circuit said--
Dan: So, there wouldn't be an argument.
Will: There wouldn't be as much of an argument, they're entangled. Right, so yeah, I agree. If they said--
Dan: It would make a difference and that they would revisit it?
Will: Right. I mean, it'd be weird-- [crosstalk]
Dan: If they were like, before on appeal, you got up here and you confessed error. You said, you should lose, therefore you should lose. Also, by the way, you wouldn't win even if you hadn't done that.
Will: But still, theSecond Circuit thought this is not unlawful and also, even if it is unlawful, it wasn't clear that it was unlawful. Now, the Supreme Court has said actually it is unlawful. How is the Second Circuit going to say it's clear-- [laughs] Before, obviously, it was unclear it was unlawful in that the Second Circuit itself thought it was lawful. And now if they're told, okay, you're wrong, it was unlawful, they're now going to say, “Oh, actually, it's now clear that it was unlawful.” [crosstalk]
Dan: Well, here's why. Which is, you could imagine the following reasoning. The Second Circuit says, “This is not unlawful under existing precedent.” Hypothetically, maybe there's some way you could extend precedent to make it unlawful, but it's not existing under the existing rules, it's not. The Supreme Court says, “Actually, under existing law, it is unlawful. You just misapplied it.” And so now you go back and they're like, “Okay, under existing law, this was unlawful. That was the existing law, therefore, you should have known that.”
Will: But the court has repeatedly said in qualified immunity cases and habeas cases that it's not enough that there is an existing precedent and the precedent controls. It has to also be clear at the precedent controls and-- [crosstalk]
Dan: Every single Justice thought it was agreed.
Will: Well, I guess the idea is the Second Circuit might think, “Well, now that we know that nine Justices thought this was unlawful, we realize we were just being dumb and thinking it wasn't clear.”
Dan: It also can't be the case that any time a judge disagrees about the underlying merits issue that defeats qualified immunity or that established provides qualified immunity, right?
Will: I mean, have you read Safford Unified School District v. Redding? A case from my term where the court says. “This strip search of a young girl was unreasonable?” And frankly, we think it's pretty clear it was unreasonable. But the lower court judges disagreed on that. So, I guess it was disqualified immunity. Wilson v. Layne, which Justice Rehnquist says, “This is unconstitutional. But there's a circuit split, and the fact there's a circuit split means there's probably qualified immunity.” I mean, it's true, that's not a per se rule. Every circuit split leads to qualified immunity. But the status of the pre Vullo status quo was that almost every circuit split leads to qualified immunity.
Dan: Do you think there's any chance the court would review this again if the Second Circuit goes back down there said still qualified immunity?
Will: No, I don't think so. And it's possible the Second Circuit will change its mind. Despite the fact there being no logical reason for the Second Circuit to change its mind, it's possible they'll get this and say, “All right, sure, we'll get rid of qualified immunity.”
Dan: I mean, because I think that often in situations like this, the lower court might actually overread the Supreme Court's opinion. It might be like, “Oh, they're encouraging us to do that.” And actually, I think the court maybe just doesn't care.
Will: I mean, they care enough to both have that footnote and then also footnote 7. So, at the end, the judgment of the US Court of Appeals is vacated. The case is remanded, for the proceedings consist of this opinion. Footnote, on remand, the Second Circuit is free to reconsider whether below is entitled to qualified immunity. So, they're going out of their way to-- this is another ambiguous vacatur, by the way. [laughs] They're not saying the Second Circuit has to reconsider the qualified immunity issue, but they're going out of their way to put that on the table.
Dan: Yeah, but they may be doing that just so that they can plausibly say this is not an advisory opinion without actually caring. Maybe they want to just establish the broader legal proposition.
Will: Yeah. But I agree at every step. I don't know that the courts thing here makes a ton of sense. I think it is still possible the Second Circuit will take this as a signal. I'm not sure they should take this as a signal, and it's over determined for me. But I think this is a very interesting case study. And why qualified immunity makes no sense.
Dan: Well, I mean, it makes a little bit of sense to me. In this case doesn't prove that it makes no sense to me.
Will: Qualified immunity renders the constitutional decisions advisory, and yet the court doesn't like that. So doesn't treat them as advisory, but it isn't actually willing to get rid of the doctrine that is advisory. [laughs] And it doesn't even totally admit that they're advisory. It's a little like Camreta v. Greene also, another one of these cases where this advisory opinion problem comes up.
Dan: If this were a state court judgment maybe they could still make the same argument, that these two inquiries are entangled, this remedial question and this substantive merits question. But if you go with my hypo, where there's two grounds, one is like procedural default and the other is merits. I think there the court would not have jurisdiction to review the state court judgment. You couldn't just say, “Well, maybe they'll change their mind about the procedural default.”
Will: Correct. Right. So, for in state courts, there's something called the adequate independent state ground doctrine that says that if there is an adequate and independent state ground, then the court lacks jurisdiction to review the federal issue because it's advisory effectively. Now, what makes the independent ground independent would be the question.
Dan: Yeah.
Will: So, I think here, clearly, qualified immunity would not be independent from the merits. And sometimes the court can reach about independence. So, if there actually was some reason to believe-- I mean, imagine it was a, whatever, a procedural thing and the merits. But imagine somewhere in state law there's a doctrine that you can excuse procedural things when there's a really good reason, even that might be enough of a hook for the court to say--
Dan: Yeah, maybe so.
Will: Well, now the court realizes this involves a terrible constitutional violation. Maybe they'll decide to grant equitable tolling or something. But I agree, they'd have to turn square corners.
Dan: Yeah.
Will: Why did they just grant the whole QP 2? [laughs] They just--
Dan: [chuckles] I don’t know. They just didn't want to deal with it.
Will: Or, I mean, especially, they're unanimous on QP 1, so they got votes to spare on QP 2.
Dan: Yeah. I don't know.
Will: Maybe they were afraid. This is my favorite theory. I mean, I'm just making it up. But the Justices seem to all think this is unconstitutional. And you could imagine a lot of the more conservative Justices who are maybe sympathetic to the NRA's views and also sympathetic to free speech, being quite outraged about what happened here. And maybe they were afraid they would be tempted to say there's no qualified immunity here because they feel so strongly about it. But that would undercut the doctrine of qualified immunity, which is frequently used--
Dan: They're tying themselves to the mast.
Will: Yeah, frequently used to deny claims they like. So, to stop themselves from accidentally undercutting qualified immunity, a case where it's terribly unjust, they just turn a blind eye.
Dan: That's possible. And it's interesting because those decisions about which questions to grant, I feel like they're often made in a quick, cursory fashion at the cert stage. So, okay. Also had an opinion called Thornell v. Arizona Department of Corrections v. Jones, where the court overturns a grant of federal habeas relief to a state court capital prisoner by the Ninth Circuit. We're low on time, and honestly, I think I might skip that one. It's another Alito opinion. We've got a semi dissent from Justice Sotomayor and joined by Kagan and then a full dissent by Justice Jackson. The former two would have vacated for reconsideration rather than fully reversed. This is interesting question about the difference between a vacatur and a reversal. And Justice Jackson would have affirmed the Ninth Circuit grant of habeas relief.
Will: My main reaction to this was just like, I felt a throwback. I was like, wow, reversal of a Ninth Circuit grant of habeas at a capital case, you don't see those anymore.
Dan: Yeah. That doesn't happen too much these days.
Will: [crosstalk] -because Ninth Circuit stop granting habeas, but I don't know.
Dan: Apparently, they still do once in a while. This was a case before Judge S.R. Thomas, Hawkins and Christen.
Will: Thomas, The Sidney Thomas in Billings?
Dan: Yeah.
Will: Hawkins in Arizona.
Dan: Yep.
Will: Well, some things never change, I guess.
Dan: Yeah. Okay.
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Will: store.dividedargument.com for merchandise, pod@dividedargument.com for feedback. And our voicemail line 314-649-3790. If there's a long delay between this and our next episode, it's because public officials have pressured our podcast hosting service not to host our podcast anymore because they don't like our speech.
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[Transcript provided by SpeechDocs Podcast Transcription]