We celebrate the 100th episode of the podcast with a special cross-over episode with Sarah Isgur at Advisory Opinions! Sarah, Will, and Dan break down today's blockbuster decision in Trump v. CASA, forbidding universal injunctions (and not saying much about birthright citizenship).
We celebrate the 100th episode of the podcast with a special cross-over episode with Sarah Isgur at Advisory Opinions! Sarah, Will, and Dan break down today's blockbuster decision in Trump v. CASA, forbidding universal injunctions (and not saying much about birthright citizenship).
[Divided Argument theme]
Sarah: Welcome to our special crossover edition of Advisory Opinions and Divided Argument. That's right. You've got Sarah Isgur of Advisory Opinions. No, David French, the guest of the pod, has left. He'll be back, don't worry. Dan Epps, Law Professor at Washington University, and Will Baude, Law Professor at Chicago University. Guys, pretty excited about the crossover. All this and more coming up on Advisory Opinions.
Okay, so this is a special emergency crossover episode of Advisory Opinions and Divided Argument to talk exclusively about the birthright citizenship decision from the Supreme Court that came out today on Friday. This came down 6-3 along ideological lines. I thought I would just run through what the court didn't decide and then ask you guys a bunch of questions. How does that sound?
Dan: Scary, but we'll try it.
Sarah: Including, am I right about what the court didn't decide? Because some of these are a little bit shakier than others. First of all, the court didn't rule on the merits of the Fourteenth Amendment or the birthright citizenship clause. And especially our nonlawyer listeners, Trump's executive order on birthright citizenship cannot go into effect for 30 days. It also cannot apply retroactively if you've already been granted citizenship or your child has. I just don't want anyone scared out there. This is a pretty nerdy podcast, so we're not going to talk a whole lot about birthright citizenship, frankly, because the court didn't decide it. Do we all agree the court did not decide at all what the Fourteenth Amendment citizenship clause means?
Dan: I agree with that unless you buy the dissents’ framing that the court is just looking away from this constitutional violation by refusing to address that question.
Sarah: I think that's fair too. I think both can be true. Okay, next, the court didn't actually say that you can't have a nationwide injunction barring Trump's executive order on birthright citizenship. And here, I'm basing that on both Justice Barrett's majority opinion and Justice Kavanaugh's concurrence, where especially in Justice Barrett's majority opinion, she's talking about the State's argument, the 22 states that sued, that in order to get complete relief, they need to have nationwide injunction against this executive order. I'll read here from her majority.
“As the states see it, their harms - financial injuries and the administrative burdens flowing from citizen-dependent benefits programs - cannot be remedied without a blanket ban on the enforcement of the executive order. Children often move across state lines or are born outside their parents’ state of residence. Given the cross-border flow, the states say, a “patchwork injunction” would prove unworkable because it would require them to track and verify the immigration status of the parents of every child, along with the birth state of every child for whom they provide certain federally funded benefits.”
So, could a district court who's now been told by the supreme court to modify their injunctions, modify it and make it a nationwide injunction because that's what the states need for complete relief? Will?
Will: Potentially, yes, the government is going to come in and say, “No, there are narrower things you could do. Maybe we'll just give a social security number to everybody born at birth, even though some of them are going to get a little asterisk to say they don't really deserve the social security number in our view.” There'll be a fight about whether something narrower is possible. But one of the state SGs, I think it was in New Jersey, put forth a really compelling picture about why none of that would work and why it was the government's job to figure out how to solve its own mess. And I expect at least one lower court will agree.
Sarah: Dan, could we still have a nationwide injunction against the birthright citizen executive order? In which case, why are we here?
Dan: So, I agree with what Will said. I think there is still this other question floating around about whether the court might say the states aren't even allowed to bring a suit like that. And so even if that would be an-- I think the thing we're talking about today is antecedent question to the underlying constitutional question. And the standing question would be kind of antecedent to the question of relief.
Sarah: Dan, you anticipated my next thing they didn't decide. The next thing they didn't decide is whether the states have standing to bring these lawsuits at all because the states are suing not in their capacity as like the sovereign state of Massachusetts, but in their capacity representing the citizens of the state of Massachusetts. Is that a thing? They also didn't decide third-party standing. Like, does CASA, for instance, have standing? Do these third-party organizations have standing to sue on behalf of you know, peeps? Dan, why don't you go ahead and give me your thoughts on them? You agree they didn't decide it.
Dan: I totally agree with that. And it actually sets up the possibility that we might see another case like this where it comes all the way back to the court and then you see a majority again not actually decide the underlying constitutional question, which I think a lot of people would find pretty maddening. I don't know what the timeline on that would look like, but I imagine some lower courts might move expeditiously, and I would imagine this could come back relatively quickly, perhaps even disrupting the justices' summer vacations.
Will: I think that's right. I think the government did claim-- SG John Sauer claimed that if the government loses on the merits in the courts of appeals, they will appeal that on the merits. So it could be that by the time round two of procedural shenanigans gets to the Supreme Court, there will also be a merits companion case that will just take over. And if not, if the court finds itself in December trying to figure out, does New Jersey have third-party standing to claim that the injunction violates the rights of its citizens, it's possible the court will be a little more interested in talking about the merits that time, even ask for a little briefing or something, because they'd be like, “We should just talk about what's actually going on here.” But all those things are possibilities.
Dan: But if the majority thinks there's not standing, they would also think they can't address the merits, right?
Will: Right. But you might end up with a package of cases. You might end up with standing for one of the associations and not one of the states or the state might have standing for some purposes and not others.
Dan: Do you think this will get back next term?
Sarah: I think it gets back in the next 30 days.
Will: One possibility is that they will-- because John Sauer promised to appeal these cases, and they might not want to appeal these cases, they might have to fire him like they fire everybody else who makes representations in court that they don't like, so.
Sarah: Okay, you guys are moving way ahead of what happens next. Okay, we're still going on what they didn't decide because we still have to go to what they did decide. They didn't rule on the Administrative Procedure Act. Kind of a big thing here because if the Trump administration can now issue guidance within the executive branch of who can enforce this birthright citizenship order and how that would work, the second it hits an executive agency, you could trigger the Administrative Procedure Act. And the Administrative Procedure Act basically says you can sue an executive branch official to enjoin them from taking some action. And at courts, per Congress in the Administrative Procedure Act, courts may set aside that executive agency official's action or pronouncement or whatever else.
So, if that's still in place-- And the other thing they didn't decide is anything about class actions or changing class actions. I guess, my next question is what did they decide here? Dan?
Dan: Well, they decided, I think that, individual plaintiffs cannot bring a suit like this and get a universal injunction absent some really good argument that it's necessary to afford them complete relief, whatever that means.
Sarah: But, Will, if, A, you can afford complete relief, and sometimes that'll be nationwide or universal-- well, not universal, but nationwide. A, you can afford complete relief under your equitable powers of the Judiciary Act of 1789. We'll get to all of that question in a second. B, you can bring a claim under the Administrative Procedure Act, as most of the universal injunctions previous to this decision were, they were APA set aside arguments. And, C, you can bring class actions. Did anything happen today?
Will: I think we're back in 1995. In the 90s, we already had universal relief under the APA. We had class actions, but we didn't yet have the explosion of nationwide injunctions without that. So, I think the court is resetting the last 30 years of public law litigation, saying it's gotten out of control. All the things you say are going to have their own procedural hoops. There used to be class action cases, we’ve got to figure out this is a good class action. There used to be more APA cases, we’ve got to figure out is this final agency action. Did you exhaust your remedies? Is it nonreviewable for some reason? And so, then the court is going to be sending us back down those procedural rabbit holes, which is good work for Fed Courts professors anyway.
Dan: And I just wanted to add one thing, the court doesn't even clearly say you can't get these injunctions. It says these injunctions likely exceed the equitable authority that Congress has granted to federal courts. So, it’s only likely. Seems very, very likely after reading this opinion. Overwhelmingly likely. But it is only likely. I don't know what the wiggle room is we're preserving there.
Sarah: Like, when it's raining outside and you're like, “It's likely that there'll be rain today.” [laughs]
Dan: So yeah, we're going to get into epistemology, I think.
Sarah: [laughs] Okay, Will, my question to you then. Let's do more Divided Argument than AO for a second here. Sorry, AO listeners, but I've got these two guys and this is a real Divided Argument question I'm about to ask. Justice Barrett makes very clear that her decision, the majority's opinion, is based on the Judiciary Act of 1789. That's an act of Congress that grants the courts these equitable powers. But what about inherent Article III authority? Is there such a thing as inherent Article III authority? Because there's like a vibe throughout this that feels very inherent Article III. So that, I don't know, this has some Marbury v. Madison feels to it. [chuckles] What do you think, Will? Article III or statutory decisions.
Will: I think this is technically a statutory decision. And I guess the question is not just inherent Article III authority, but also inherent Article III limits.
Sarah: Could the APAs set aside power be unconstitutional because of Article III regardless of what the Judiciary Act of 1789 says? Sort of like Marbury v. Madison, where they're like, “Yeah, not handing the commission was unlawful under this act of Congress, but the act of Congress exceeds our Article III authority. Therefore, sorry, Mr. Marbury.” Could the APA be in trouble here?
Will: Yes, it could be. So, if the Court's going to uphold the APA, it's going to have to say that Congress does have power to grant some sort of de facto universal relief in some cases. I think that's actually more plausible for the APA because the rules also come from Congress. So, you could see that as, like, Congress creates the agencies. Congress can say their rules fall when they're enjoined. I think the best parallel here is Loper Bright and Chevron. The Court said in Loper Bright, Chevron is wrong because courts are supposed to say what the law, but it technically issued an APA decision. Only Justice Thomas wanted to go further and say, “I think Congress couldn't even Chevron if it wanted to.” And so, I think here it's the same question that they're reserving.
Now, given that they're talking about the original understanding of equity in 1789, which happens to also be when Article III was adopted, you could easily imagine importing a lot of these arguments over to the Constitution, but that's left open.
Dan: Yeah, this opinion really has a feeling like the Court's recent Second Amendment jurisprudence, where it sort of says, “Well, we're looking for founding era and before analogs.” And so, if you just read it quickly, you're going to think it has a constitutional flavor. But I guess what's really going on here is-- Will, is this statutory originalism?
Will: That's what we call it now. That's what legislative history became when it was cool, I guess.
Sarah: [laughs] Well, as you say though, this has a very text history and tradition vibe to it, though that phrase is not used by Justice Barrett. And if you go back and look, each of the justices has come up with their own turn of phrase. Justice Thomas had done the text history and tradition. Justice Kavanaugh, I think, has done text history and precedent. Anyway, Justice Barrett doesn't ever say text history, tradition, but she's doing a version of that. As you say, she hates post ratification, or post, in this case, 1789 bicameral presentment. [laughs] So, we're all pre-1789, and I felt that we run into the same problem that we've run into with the Second Amendment, which is, what is your level of generality when it comes to, for instance, these bills of peace that both sides argued about. The dissent argues that a bill of peace looks a whole lot like a universal injunction. And the majority says, “No, no. You're using too high a level of generality. They were very specific things. And if anything, they've evolved into class actions.” How's text history and tradition doing for you, Dan?
Dan: Yeah, I totally agree that there's this level of generality question, because I don't think it's totally inconsistent with some version of statutory originalism. Maybe Will will correct me to say, the understanding of equity in 1789 was this super, super flexible thing that let courts come in and kind of fix stuff in ways that wasn't accounted for by legal rules. Now, I'm not saying that's clearly right, but I'm not sure that would be in and of itself inconsistent with the approach that's taken here. Or you could also just say, it completely freezes everything in amber, and you can go get a bill of peace, but you can't get anything else. Will, what do you think?
Will: I am one of those small number of law professors who thinks that the Supreme Court's interpretation of the Second Amendment in Bruen is totally right and totally cool. But this is even better because in equity, Bruen happened in 1999. The court is building on a case that almost no listeners of this podcast have ever heard of, called Grupo Mexicano. And in Grupo Mexicano, the court basically said the equitable powers of the federal courts are determined by some form of originalism from 1789. And we have a level of generality problem, and Justice Ginsburg and Justice Scalia fight out what the level of generality is. And then, Professor Sam Bray, my newest colleague, has written five excellent articles in a remedies casebook explaining to everybody how to understand the proper level of generality. And Sam Bray has cited 20 times in the opinions of the Court today. And so, I think what we're now saying is, like Bruen, but for equity and with the benefit of all Sam Bray scholarship.
Sarah: Can we do a little cul-de-sac right now where we talk about who got love and who got shade today? First of all, Sam Bray, the big winner of today's decision. [laughs] So much love. Grupo Mexicano, a decision that nobody really had been talking about for the last 20 years back on the scene, like, lots of love for Grupo Mexicano. Chief Judge Sutton of the Sixth Circuit getting what I thought was a random shoutout that was clearly just a, like, I Heart Sutton tattoo. And I'm here for that because listeners know that he is my number one judicial crush.
Dan: Nice metaphor that he trotted out. The domesticated animal known as a bill of peace looks nothing like the dragon of nationwide injunctions. Did you like that one, Sarah?
Sarah: [laughs] I do, actually. I mean, but I like everything he does, thinks, says. Okay. On the shade side though--
Will: Don't forget Judge David Stras also, he has an opinion that gets cited, I don't know, a bunch of times as well.
Sarah: Oh, yeah, Judge Stras, friend of the pod. I'm sorry. Yes, absolutely on the getting love side. Am I missing any love?
Dan: Well, are you going to give Will a little credit? He gets taken along for the ride, I think, more by way of citing Sam.
Sarah: Like, Sam Bray yells, “Get in, loser. We're getting equity.” [laughs]
Dan: That's a Mean Girls reference, Will.
Sarah: [laughs] Did Will get that?
Will: I have seen Mean Girls.
Sarah: Oh, well, then you should have known it. Okay, well, we'll be right back. There's two shades that I think are worth mentioning. One is the shade that Justice Barrett throws at Justice Jackson and it's not so much shade as one of the more explicit takedowns from one justice to another. I haven't seen this level of rhetorical animosity since the War of the Warhol Footnotes between Sotomayor and Kagan, which got pretty feisty there over copyright infringement.
Will: Yeah, I was going to say, not since Justice Scalia wanted to hide his head in a bag.
Sarah: Oh, the Obergefell. “If I signed on to a majority opinion like this, I'd hide my head in a bag.” Yeah, that was pretty bad. So, should I read the Justice Barrett takedown of Justice Jackson real quick since we're doing shade? “Waving aside attention to the limits on judicial power as a mind-numbingly technical query, Justice Jackson offers a vision of the judicial role that would make even the most ardent defender of judicial supremacy blush. In her telling, the fundamental role of courts is to order everyone, including the executive, to follow the law. Full stop.”
This is now quoting Justice Jackson. “’The function of the courts, both in theory and in practice, necessarily includes announcing what the law requires in suits for the benefit of all who are protected by the Constitution, not merely doling out relief to injured private parties.” And Justice Jackson warns, “If courts lack the power to require the executive to adhere to law universally, courts will leave a gash in the basic tenets of our founding charter that could turn out to be a mortal wound.” Rhetoric aside, Justice Jackson's position is difficult to pin down. She might be arguing that universal injunctions are appropriate, even required, whenever the defendant is part of the executive branch. If so, her position goes far beyond the mainstream defense of universal injunctions.”
“As best we can tell, though, her argument is more extreme still, because its logic does not depend on the entry of a universal injunction. Justice Jackson appears to believe that the reasoning behind any court order demands universal adherence, at least where the executive is concerned. In her law declaring vision of the judicial function, a district court's opinion is not just persuasive, but has the legal force of a judgment. Once a single district court deems executive conduct unlawful, it has stated what the law requires, and the executive must conform to that view, ceasing its enforcement of the law against anyone, anywhere. We will not dwell on Justice Jackson's argument, which is at odds with more than two centuries worth of precedent, not to mention the Constitution itself. We observe only this. Justice Jackson decries an imperial executive while embracing an imperial judiciary.”
Dan: It was pretty brutal, and I will say it left me with very high/low expectations coming into Justice Jackson's dissent, which was I don't think anything in here is clearly unfair. I think the dissent comes off a little better than this summary. The big picture makes it seem like but it was pretty effective.
Sarah: Will, there's also this line from Barrett. “Justice Jackson would do well to heed her own admonition. Everyone from the President on down is bound by the law. That goes for judges too.”
Will: As Dan knows, Justice Barrett was already one of my favorite justices in the Supreme Court, and she just became even more my favorite justices in the Supreme Court.
Sarah: So, you agree with that general assessment? [laughs] Interestingly, and I want to spend some real time on the dissent, the primary dissent by Justice Sotomayor, joined by Justice Kagan and Justice Jackson, Justice Barrett treats with quite a bit more respect and attention, disagrees with it, obviously, but this does not seem to be like an ideological disrespect.
Will: Right. Part of what's striking about this little callout, also since Justice Barrett is normally so rhetorically restrained, the fact that she's taking the gloves off here stands out. But then, she openly says, “The principal dissent focuses on conventional legal terrain, like the Judiciary Act of 1789 and our cases on equity. Justice Jackson, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.” So, that's what we're saying, “All right, we in the dissent, we're having a normal legal dispute. And then Justice Jackson, she's off there doing something else.”
Sarah: Dan, did Justice Barrett call Justice Jackson stupid?
Dan: It has that feel. It has that kind of feel of this doesn't even get a passing grade as legal analysis. That said, the one thing that might make it may be unfair-- or just the way she describes it, it doesn't grasp the one point that Justice Jackson is hammering home, which is this thing the President did is super, super unconstitutional. And the rules the court is putting in place potentially makes it nearly impossible for a bunch of people affected by it to have a remedy for that. And that point, sure, you can pick it the way in which it's framed, the way in which it's a little untethered to legal analysis. But that big picture point, I think that demands some kind of response.
Will: Other thing I'd say in defense of Justice Jackson is that 50, 75 years ago, this judicial supremacy was conventional wisdom. So, she is able to cite things like Cooper v. Aaron and other important sources. Now, I think that was a terrible mistake, and everything Justice Barrett says about it in response is correct. But there is a tiny bit of gaslighting going on in acting like Justice Jackson is not even a lawyer for repeating the basic things.
Dan: You think Cooper v. Aaron was a terrible mistake?
Will: Yeah, the judicial supremacy part, it's one of the worst things the Supreme Court's ever said about the Constitution.
Sarah: Will, tell us about Cooper v. Aaron so that listeners can catch up.
Will: Cooper v. Aaron is in the wake of Brown v. Board of Education, which is a great and important decision about why segregation is unconstitutional. And then in the wake of the fight about how to implement and obey the courts or disobey the court's decisions, the court gets a case called Cooper v. Aaron arising out of a standoff in Little Rock where the court says, “Look, we already ruled this is unconstitutional. You’ve got to obey. The fact that it's annoying and people are fighting each other is not an excuse.” That's all correct.
And then, the court says, “The fact that this has been a dispute and that the governor of Arkansas has said he's not bound by our decisions forces us to recite a few other basic truths that are settled doctrine.” And then it goes on to say that the decisions of the Supreme Court are the same as the Constitution because the Constitution is the supreme law of the land, and the Supreme Court interprets the Constitution. Therefore, the Supreme Court's decisions are the supreme law of the land. And everybody who takes an oath to the Constitution has also taken an oath to the Supreme Court's decisions. And these are basic facts that have been unquestioned since the founding, which is just like, literally not true. Lincoln questioned them, Jefferson questioned them, Jackson questioned them.
But the Court just sets that up as a basic civics truth, which I think does become conventional wisdom for a while. People think like, well, the Supreme Court interprets the Constitution. The Constitution is the supreme law of the land. Therefore, the Supreme Court is the supreme law of the land. And if you buy that false syllogism, district courts interpret the Constitution too. They also have the Marbury power. So, if the Marbury power is enough to turn a court into the Constitution, it can turn a district court into the Constitution.
Now, I see Justice Jackson as helpfully providing the reductio ad absurdum to that logic. This is why the power to interpret the Constitution is not the same thing as the power to become the Constitution. But in her defense, many people before her, like Chief Justice Warren, have been equally wrong.
Dan: Look, I will agree that there's a lot of the language about judicial supremacy in there that is questionable. And I agree with some of what Will is saying. I was trying to get him to say that he thinks it was a grave mistake to try to enforce the desegregation orders but he kind of dodged and weaved out of that.
Will: I have a take on this. This might get me in trouble. There was a fight on the court about how to interpret, how to enforce the desegregation orders. There’s correspondence about this between I think it's the Hugo Black position v. the Felix Frankfurter position, and the Felix Frankfurter position was the Cooper v. Aaron position, basically that we should say everybody has to obey our decisions immediately or everybody has to obey our decisions, period, the whole country. And therefore, we need to take a lot of time because we can't expect them to all obey right away. And so, you get things like, after Brown 1, there's a second case called Brown 2, which only law students read, where the court says, “Well, I know we just said segregation is unconstitutional, but is it unconstitutional now?” Well, you can all have all deliberate speed to implement our opinions.
Hugo Black had a different view, which I think was correct and should have won, which was, the court should stick to the anti-universal injunction rule and only enforce segregation in the specific named parties. But-- [crosstalk]
Dan: Desegregation
Will: Desegregation. Thank you. See, you're already tripping me up. It should only enforce desegregation orders as to the named parties, but it should say to them, like, “Now, it's the law. Comply now. No ifs, ands, or buts.” So, it would have come down faster and harder, but only in the districts that were sued. And of course, the NAACP would then have to figure out which districts to sue in, and we'd pick off the South one by one. And in my copious free time, I intend to write the alternate history novel about what the path of desegregation orders would have looked like if Hugo Black had won. It's going to be a page turner.
Dan: What's the short version of that? Does it take a lot longer to at least have the end of de jure segregation? I mean, obviously there's a lot of scholarship about the fact that Brown doesn't make that much of a practical difference in the South.
Will: I think the basic pitch is that de facto desegregation would have happened faster and more thoroughly, although it's true that de jure segregation might have been slower.
Dan: So, this is a perversity argument? You're saying there would have been more desegregation if the Court had been less willing to say that it was unconstitutional in individual school districts?
Will: Yes, because the NAACP is strategic and smart and full of good lawyers. So, they would pick the right people and go after them one by one, achieve actual success and then move on to the next one, rather than trying to declare war on the whole South the whole time, and then fight a giant front war that couldn't win.
Sarah: I think this is interesting on its own, but actually very applicable to what we're talking about right now of the judicial supremacy argument, which is kind of what this whole thing is about. I want to now take it back to a really basic premise about complete relief versus universal relief. So, for a long time, we called them nationwide injunctions. We've gotten better-- And I mean, we like the pundity class about calling them universal injunctions. So, I just want to make a point real quick about why we switched that. We call them nationwide injunctions because they would apply nationwide. But courts all the time can issue injunctions that happen to apply nationwide because that's what the party would require type thing to do this. So, we started calling them universal injunctions because that better captured that it's about the who, not the where.
So, a universal injunction is enjoining the president in this case, from executing the law against anyone, whether they're a party or not. Nationwide, yes, but that's sort of a side point to the fact that he can't enforce it against anyone. It's universal. Complete relief can also be nationwide. It just can't be universal.
And Justice Barrett has this example of a neighbor who plays the loud music, which I thought was pretty good. So, your neighbor is playing incredibly loud music. You go in to sue them. And the judge at that point, the only thing that can give you complete relief is telling the neighbor they have to turn down, or as she says, better yet, turn off their music. So, you have granted complete relief to the single person who sued. As a result, of course, all the other neighbors now don't have to hear the music either. But it's not universal relief where the neighbor can never play music, so to speak. And if I, the person who sued, or you, I think I was saying you, the person who sued moved away, that injunction would disappear and another neighbor would have to bring a new lawsuit, basically, because it's not an injunction in that sense. Universally, it's just complete relief for the one neighbor.
Do you all have a better explanation about the difference between complete and universal relief? Because the punchline here is that the Supreme Court said no universal relief, but yes, complete relief, right?
Dan: Isn't it always true that if the actual plaintiff in one of these cases, goes away, or at least no longer wants the injunction, then it goes away for everybody? So, I guess that distinction doesn't make a ton of sense. I mean, if the injunction issued to the neighbor says, “Don't turn your music up,” that seems kind of universal, right? I mean, maybe the thing that's tricky-- maybe that's a bad example for her to use because it's tied to real property, which is tied to a specific physical location. And so maybe in that way, it ends up kind of being misleading. I wonder whether we could come up with a hypo that makes the same point that actually has some no geographic reach on it that isn't necessary based on the fact pattern. Do you have one, Will?
Will: I don’t-- I guess I think the way to think about this distinction is more like the distinction between complete relief and universal relief means the defendant is almost always invited to come back and say, “Hey, I've got an idea. Can I do this? Here's a way I could make the plaintiff happy but still do a little bit more of what I want.” And in a universal relief world, Justice Jackson would throw something at them and say, “No, no, no, it's unlawful. Why are you coming back and proposing you're going to do more unlawful things? Like, that's not the point.” Whereas Justice Barrett is going to be more open to the person coming back and saying, “It turns out I had installed soundproofing on the south wall of my house, and now when my music is on, my neighbor can no longer hear it.” And Justice Barette might say, “All right, fair enough.” Like, complying with that proposal also provides complete relief or whatever.
Sarah: To the single neighbor, even though the other neighbors will still be subjected to music that is above the decibel level allowed in the neighborhood, let's say.
Will: So, the complete relief means we're keeping our eye on the plaintiff the whole time and they have a right to have their harm completely remedied. And that might sometimes require the defendant to stop doing something altogether, but it might not.
Sarah: I want to move to Justice Kavanaugh's concurrence because, by the way, we're still in the cul-de-sac about shade somehow, because I didn't get to my second shade throwing moment. Do you remember last month, I'm not even sure it was a full month ago. Judge Ho on the Fifth Circuit issues this concurrence that can only be read as, a letter to the editor of the Supreme Court [laughs] where he says, “The district courts are not a Denny's.” And when you file something after midnight, yeah, it might take until, like, the next afternoon for the district court to get around to it, and that doesn't mean they ignored your petition. And he was really mad that the Supreme Court seemed to say this district judge hadn't discharged his duty.
So, without citing anything, there's no name reference. It's a subtweet, if you will. We have Justice Kavanaugh saying, “By law, federal courts are open and can receive and review applications for relief 24/7/365.”
Will: I did see that. There's a statute that says this, by the way. So, the one thing he does cite is a statute, 28 USC § 452, which Judge Ho should have read, that says, “All courts in the United States shall be deemed always open for the purposes of filing proper papers and making motions and orders.”
Sarah: So, they are a Denny's?
Will: Yeah, they don't have to serve you. Like, you have a right to file. So, I guess if you imagine a sort of weird, passive aggressive Denny's, where at any point you want to, you can go in and sit down at a table and place an order, but you might have to wait until the morning for the cook to show up and make it for you. But you can sit at the table for as long as you want. That might be Waffle House, actually.
Sarah: I just feel like our two most placid justices, Barrett and Kavanaugh, were the ones throwing high fastballs today.
Will: Justice Sotomayor also cited Judge Ho, The Green Bag article he wrote about why birthright citizenship is constitutionally required before he came up with the possible invasion workaround to allow him to get out from under that position, which I assume was intentional.
Sarah: It might be worth noting that Judge Ho and Senator Cruz are and have always been very close friends and that perhaps that Green Bag article was in anticipation of his friend, Ted Cruz, running for president and the natural born citizen clause and some other related sundries.
Will: I'm sure that Jim Ho would not have written that if he didn't believe it from the bottom of his heart and think it should be true for everybody.
Sarah: I think that's true, actually. I just am noting that there was a reason. It didn't come out of nowhere.
Dan: Are you saying that his views are entirely consistent and totally offered in 100% good faith?
Sarah: For what it's worth, I think Judge Ho absolutely believes that.
Dan: Okay, I'll let Will off the hook on that one.
Sarah: I think I'm the one who got Will off the hook on that one. But Justice Kavanaugh's concurrence is, to continue our Denny's metaphor, basically, like, this Denny's this particular Denny's at 1st St is open for business and excited to take your orders.
Dan: And kind of a fast-food restaurant, not slow dining.
Sarah: That's right. Short order docket. I mean, he didn't use that term, but I now like it even more that we're using the Denny's thing. Like, yeah, he calls it-- He's very into the word “interim.” So, the interim relief docket, I think, would be something he'd be into us calling it. Definitely not the shadow docket, Will.
Will: It's okay. I'm going to write an article called the Emergency Docket to try to reclaim all the citation space that I'm losing on account of the polarization of the “shadow docket” term.
Sarah: Well, actually, let's spend a minute on this because, Will, you coined the term “shadow docket.” For a long time, we all liked that. And the point was that nobody was noticing it. They weren't really writing on it. We didn't know how people voted. No more. It's pretty hard to say this is in the shadows at this point. So then, everyone moved to emergency docket. But, A, they're not always emergencies, and they're not always treated like emergencies. This case was filed-- What are we at now, three, four months ago? Like, hard to say that's an emergency. So, Will and Dan, what should we be calling this?
Dan: We've debated this on the show and have not come up with the right answer. I tried to get the lightning docket out there.
Sarah: Preliminary relief docket, interim relief docket, short order docket, pinky docket. The applications come with a little pink cover. Should we call it the pinkies? Although in the Fifth Circuit, pinkies are bad, are totally different and not good.
Will: As I've said also on the show before, when I called it the shadow docket, the original draft of my article was going to be called “On Paying Attention to the Orders List.” And my friend, Justin Driver, who is smarter than I am, said, “Will, if you call an article ‘Paying Attention to the Orders List, nobody's going to pay attention to the orders list. You need a sexier title.” And so, we ended up with Shadow Docket. So, I much prefer something like the All Writs Act Docket.
Sarah: Professor Driver, by the way, we have invited you on the pod. We continue to invite you on the pod. Please come on the pod. We're big fans. The all-writs docket, eh?
Will: Yeah. Because a lot of these cases, not all, but a lot of them come from the All-Writs Act. And the real question is what is necessary inappropriate relief and aid of the court's jurisdiction. But I'm pretty sure that calling out the all-writs docket is going to go over about as well as calling out the orders list. So, I think we have to accept the emergency docket is here to stay.
Sarah: We'll be right back. Okay. Well, I want to read a couple things from Justice Kavanaugh here because I think he has two main points. Point number one, this is the Supreme Court's job, not the district court's job. They should not be the ones enjoining things universally we should be. So, here's him now. “In justiciable cases, this court, not the district courts or courts of appeals, will often still be the ultimate decision maker as to the interim legal status of major new federal statutes and executive actions. That is, the interim legal status for the several-year period before a final decision on the merits. The court's decision today focuses on the interim before the interim, the preliminary relief that district courts can award and courts of appeals can approve for the generally weekslong interim period before this court can assess and settle the matter for the often yearslong interim before a final decision on the merits.” Do you agree with that?
Will: Yeah, I think so. I guess it presumably will also apply to permanent injunctions, which nobody cares about anymore because once the preliminary injunction is decided, we just treat that as the end of the case. But if there ever were permanent injunctions, again, I think-- I think there is this general point that how to think about these universal injunctions by district courts is intimately tied up with what you think happens next in the courts of appeals and so on. So, one consequence ironically, of the universal injunctions was they forced the Supreme Court to take these cases a lot more often. Because when Northern District of Texas has enjoined something on a nationwide basis, that's inherently cert-worthy in a way, it might not be if it applied only in Amarillo or only to the parties before the court.
Sarah: So, this is part 2 I wanted to ask about Justice Kavanaugh's point. Part 1 is this is our job. And part 2 is like a promise that they're going to keep doing/ even increase doing their job. Now, he says that it needs to be cert-worthy, borrowing from something Justice Barrett had written previously, but that's a bit of a sticky wicket right there. But because something that's cert-worthy, like you said, when something's enjoined nationwide universally is a little different than when it's only enjoined in Amarillo. But what he seems to be saying is, “Okay, yeah, I get that we're going to have to redefine cert-worthiness.” Any new big federal rule, order, law is by definition cert-worthy and therefore our docket, whatever we're calling it, the interim relief docket, is going to have to take that into account if we've stripped the district courts of this. Dan, he doesn't say that at all, actually, but I think it's implied. Do you agree?
Dan: Yeah, I think he's sort of saying, bring it on.
Sarah: This Denny's is ready for all of your hash brown orders. So, he seems to be saying, though he doesn't explicitly say this, “The interim relief docket is open for business on big executive policy. We will take it. Come on in. The Denny's is open.”
Dan: Yes, I think that's that seems right. But he is only one vote and there is a world in which some of the others are not enthusiastic about taking these cases early, and we have a certain amount of geographic disparities if there are circuit splits about these things. I don't know whether we think that in practice, that's not going to happen because they're going to want to weigh in. But he says in footnote 3 that basically the court should have the same standard for an application for an injunction and an application for a stay of an injunction. It doesn't make sense to have asymmetry there, which I thought was interesting.
Sarah: Will, it takes four votes to grant cert. Justice Kavanaugh is one vote. Is the Chief standing alone here, or are we seeing the return of the courtesy fourth in the context of the interim relief docket?
Will: That's a good question. Yeah, I think Justice Kavanaugh is signaling, he's often going to be vote to grant although, he calls it, it has to be a major regulation or statute. He even italicizes that once. It's going to become like a Kavanaugh term of art.
Dan: Is that related to being a major question?
Will: I was wondering that.
Sarah: The Gorsuch definition of major questions left something to be desired in my world.
Will: You can have a new rule. The major questions doctrine applies in all statutory interpretation cases in the Supreme Court, because if the court grants cert, it must have been a major question.
Sarah: [laughs]Ooh, I like it. And round the circle goes.
Will: But you can imagine times-- I mean, sometimes we call these defensive denials, where other people on the court don't want to grant something because they're afraid they don't know how it's going to turn out. You can imagine times when Justice Kavanaugh can't find three other takers because while Justice Kavanaugh is very confident that Justice Kavanaugh should decide whether the rule is valid or not, other people on both wings of the court might be more nervous about that.
Dan: This opinion sort of had a feel of SCOTUS supremacy. I don't know if that means Will doesn't like it or if he likes SCOTUS supremacy, just not judicial supremacy.
Will: I do not like SCOTUS supremacy.
Sarah: Ooh.What? Huh?
Will: So, I think Dan means two things. A part of what Justice Kavanaugh is saying is like, “Yeah, we're getting rid of universal injunctions, but don't worry, because we're still here and our opinions are still--”
Sarah: They have the effect of universal injunctions.
Will: Yes, which is true to some extent. But I think the formal distinction matters, and I think Justice Kavanaugh doesn't care about that formal distinction very much. I also think this general point Justice Kavanaugh says, all these important interim decisions, not just whether the rule is valid, but even whether it'll be valid in place for a couple of years. “Determining the national uniform interim legal status for several years of, say, the Clean Power Plan or Title IX regulations or mifepristone rules, is a role the American people appropriately expect this court, and not only the courts of appeals or district courts, to fulfill.” That has a little bit of Planned Parenthood v. Casey energy. The American people are out there begging for us, the Supreme Court, to come and tell them that the Obama administration is wrong, [laughs] the Trump administration is wrong, or whatever.
Dan: And that's ahistorical, too. We didn't always live in this world where we had the Supreme Court there waiting in the wings to give a letter grade to every single thing the executive does.
Will: Now, I do think it's maybe true that people have that expectation, because the court has led us to have that expectation. Justice Kavanaugh was out there saying, “The Denny's is open for business, and we're going to weigh in on all these major rules, and you should expect that. And if we don't, it's unusual.” But the court took that role on pretty recently, historically, as Dan said. I mean, look, I'm not sure the food in this Denny's is as good as it could be.
Sarah: Wow. Throwing shade at Justice Kavanaugh's cooking abilities.
Will: They're doing their best, but-- [crosstalk]
Sarah: They're short order cooks. That's why we call it the short order docket over in-- just me, actually, just me and David Lat.
Dan: But what's the alternative? The alternative is just having a lot of geographic disparities, right?
Sarah: Chaos, Will, chaos.
Will: Or some more rules. So, here is a rule Justice Kavanaugh has already said he doesn't like, that we used to have to handle this, which was called the presumption of constitutionality, where the strong presumption would be these things are in effect for a while and maybe they eventually will be struck down and maybe there are unusual circumstances where the presumptions overcome. But the de facto assumption is that laws go into effect for a while, even though they might become unconstitutional in a few years. He said in Labrador v. Poe, that was unworkable and bad for reasons but that used to be a rule. You could have more nuanced presumptions. You could have a presumption of constitutionality for statutes, but not for executive action because of the separation of powers and tradition and stuff.
The other thing we used to do, if I write the emergency docket articles, going to be the actual topic, we used to pay more attention to irreparable injury. So, we used to say the status quo will be the thing that is-- the interim rule will be the thing that is more consistent with the previous status quo and doesn't cause irreparable injury. The court has now said anytime the government loses, that's irreparable injury, which forces the court into these things a lot more than it used to. And so, we used to have that regime. It worked pretty well. The court has gotten rid of that regime, those rules, because it doesn't like them and wants to do more stuff and has led us to believe that the Denny's is always serving. So, here we are.
Sarah: By the way, you have Justice Barrett at one point defining the problem, reading from her majority: “During the first hundred days of the second Trump administration, district courts issued approximately 25 universal injunctions. One study identified approximately 127 universal injunctions issued between 1963 and 2023.” So, this is not including those 25 that she just mentioned. “96 of those 127, over three quarters were issued during the administrations of President Bush, Obama, Trump,” Trump one, “and Biden.”
But then, there's this nice moment where Justice Kavanaugh answers the why. He says, “The volume of preliminary injunctions and other pre-enforcement litigation over the new federal laws and executive actions coming to this court has been growing in recent years. That trend is in part the result of the increasing number of major new executive actions by recent presidential administrations of both parties that have had difficulty passing significant new legislation through Congress.”
I just liked the call and response A, because of course he was staff secretary to President Bush. So, he's like, “Oh, you want to know why we were doing so many executive orders? Like, let me tell you.” But two, what he's saying as to the why is obviously true, but there's something he's not saying, which is, A, have the courts themselves changed? And, B, have the nature of the executive orders changed as well? They're not simply filling in what Congress would have done. They're basically doing like base maintenance where they're owning the libs or owning the cons through executive orders because it is really fun knowing that it would never have gotten through Congress that way. This isn't replacing legislation, I guess, is my point. So, Dan, have the courts changed? Is that part of the reason that we're seeing three quarters of these injunctions happen in the last 25 years?
Dan: I think both answers might be true that we do see a lot more aggressive executive actions, but we also see some of this with statutes too. The Obama administration got through the Affordable Care Act. And then immediately, the next step was the Supreme Court is going to decide whether that is constitutional. And it's not to say that never happened before, but it had a little bit more of a feel of inevitability than maybe it would have a generation earlier. Maybe that's because of just the stark ideological difference between the majority of the court and the presidency. But it does seem like there's more of an expectation today that the courts are going to come in and weigh in on these things quickly. And it's not 100% just the executive order phenomenon.
Sarah: But, Will, there is something happening at the judiciary. It may not be the judges changing, though I'm curious if you think it is in especially a post-filibuster world where the judges no longer need votes from the opposing party. But forum shopping feels like it's changed a little so that maybe it's not the judge's fault that you picked them, but the numbers are pretty bad when you look at the injunctions against President Biden, every single one came from a Republican-appointed judge, and the injunctions against President Trump in his first term, almost, the vast majority came from judges appointed by Democrats. Again, that could be because they filed the lawsuits intentionally in front of a judge that had been appointed by that party. So, it's not that the judges are corrupt in some way, but it is undermining the institution. I think it's eating away at credibility.
Dan: Can I poach that just quickly? Which is just to say that I do think our legal culture is more polarized today than it has been for quite some time. We really are seeing just two different schools of thought on how to approach the judicial role. And I think there's more emphasis on ideology and judicial selection now than it was a couple generations ago. And I think that has to be part of the story.
Will: I think it is part of the story. In the article that Sam Bray and I wrote that gets cited here, we dig into this a little bit in one of the footnotes, and there is some evidence of increased politicization of district court nominees, happening more recently, court of appeals nominees. It used to be the district court's nominees were more of a like, all right, those are just either good lawyers or lawyers who know a senator or whatever. And I think there's more attention to who those people are. And then, to agree with Sarah, it doesn't take that many relatively extreme judges, whether right or wrong in both parties, to make a big difference, given all the options for venue shopping and forum shopping nationwide, injunctions increase the rewards going to those judges because you get really big relief. I think Massachusetts v. EPA gets part of the blame here for helping to at least send the vibe that state plaintiffs would be good in these cases.
Sarah: Sing the first few bars of Massachusetts v. EPA.
Will: In Massachusetts v. EPA, the Supreme Court says that when states are plaintiffs against the government, they get special solicitude. They get extra bonus points on their standing.
Sarah: And if you're wondering what special solicitude means, none of us really know. [laughs]
Will: None of us really know. And then, pretty quickly when Texas wanted to start bringing a lot of suits against the Obama administration, this was their favorite citation. They were like, “Well, Massachusetts got special solicitude when it was suing the Bush administration. So, Texas gets special solicitude when suing the Obama administration.” It's not actually clear doctrinally this makes a huge difference. Katherine Crocker has an article called “Not-So-Special Solicitude” where she goes through all the cases that supposedly gives special solicitude to the states and concludes that it's not clear it really makes a difference. But vibes wise and in terms of then setting up all these SG's offices filled with talented lawyers, some of whom are friends of the pod, there's a whole equilibrium of all those things rolled in together that I think help produce the current state of affairs.
Sarah: Well, this takes us to the Alito concurrence. Justice Alito has been banging his spoon on this high chair of standing for the whole time and not just on the special solicitude for states, but like literally all of standing doctrine. He's just like, “Everything is wrong. Everything's a mess. There's no consistency.” And he, joined by Justice Thomas, basically like have a warning sign that, A, class actions could end up out of control. So, just noting class actions are rules, like this isn't Nam. And two, now the pressure is going to be on standing doctrine. And now, we need to actually like focus on this. A, obviously just reactions to that.
B, that concurrence by Alito joined by Thomas made me think that this was probably a pretty hard six to hold together for Justice Barrett, that she must have had to like thread some needles here to keep Alito and Thomas on the one hand and Kavanaugh and probably the Chief who's not fond of joining concurrences, so no surprise there. On the other hand, to all be like hang out in one six-person tent together because if you lose either two, you no longer have a majority and then you have a fractured opinion that would be a hot mess.
Dan: Yeah, the opinion obviously is careful not to resolve everything. It says something very important is likely to be true. Very, very likely.
Sarah: Yeah, but I mean standing in class actions, like, on the one hand, you have Alito and Thomas saying-- talk about not likely-- They seem to think the states probably don't have standing here. At least they're implying it. And Justice Kavanaugh is like, “Let's do emergency docket. Woo,” meaning to him at least it looks like the states very much have standing. So, if you're not deciding standing, you're not deciding the APA set aside question, you're not saying anything on class actions, although do go look at Justice Kavanaugh's DIG and LabCorp again. I was flagging that dissent from the DIG meant that we were about to strike down universal injunctions. I can't believe I was right about that. I said it out loud, thinking I was probably wrong. So, that's a huge moment for me. There's a lot not decided because I don't think there were five votes to decide it.
Dan: Yeah, but not everything was clearly presented. Like, the class action question is not clearly presented by the case. So, it would have been an overreach. They could have reached the standing question.
Sarah: They couldn't reach APA set aside.
Dan: Yeah, they couldn't address that.
Will: They could have reached the constitutionality question. This could have been an Article III decision. But I think the judiciary act framing is very elegant to have enough of an originalist flavor that Thomas and Alito are happy to join it in full, but enough of APA could be different ammunition that Justice Kavanaugh and Justice Roberts are happy to join it in full. That's evidence of the Barrett brilliance at work.
I think that we’ve got to give it a lot of credit for what it does resolve. Because I think until now, I had said the problem is the reason the court can't issue a universal injunction opinion is they don't know what to say. Because they don't want to say they're forbidden because it seems like sometimes in exceptional circumstances, they're going to want them, but they don't want to say they're allowed because the current state of affairs is intolerable. And, so being willing to actually bite the bullet and say, “No, universal injunctions as such are forbidden. It's true that you might sometimes have to grant a very broad injunction to grant complete relief or grant injunction to a class action. But those are not universal injunctions precisely because they're still plaintiff focused.” Like, biting the bullet and just saying, “No, that's the rule.” Six votes is something I actually wouldn't have predicted until maybe after oral argument.”
Sarah: If this had been on the eviction moratorium or student loan debt relief, would the vote have look different.? Is this Trump distortion is why it's 6-3 this way?
Dan: I mean, I think it is unfortunate that the conservative court ends up deciding this issue during a Trump presidency, I think it optically would have looked better if they could have come up with consensus a little earlier. The majority opinion does try to, and the Kavanaugh opinion too, does try to say, “This is a both sides issue.” The Barett opinion specifically says the Biden administration and the Trump administration. But it would have been nice if we could have gotten this three years ago.
Sarah: I mean, wouldn't Elizabeth Prelogar say, “Yeah, we asked you to do this during the Biden administration and you didn't”?
Will: Well, I mean, yes, she will say that. They clearly asked them to do the APA thing, thinking in some ways that would be the easier one for the court to swallow, forgetting to account for the D.C. Circuit mafia. [Sarah laughs] They’re like, “Justice Kavanaugh and Justice Roberts might be willing to say universal injunctions are forbidden, they're not forbidden in D.C. That is the one place they are allowed.” [laughs] But that was hard to know in advance.
It was kind of teed up in the student loans case, Missouri v. Biden, where, full disclosure, Sam Bray and I wrote an amicus brief. That's what turned it into the Harvard Larry article that's cited here. But then, it kind of fell out of the case awkwardly. So, it would have been better for the court to ask for some [unintelligible [00:59:14] briefing on it and do it in that case, for all the reasons you say. But I do fear the universal injunctions are unconstitutional, except for during the four years of the Biden administration when we needed them, is not a good luck for the court.
Maybe the most sympathetic account, since that's my shtick, is some members of the court believe they're impermissible for formalist reasons. That's Thomas, Alito, Gorsuch, and Barrett. That's only four. And to get this opinion, you needed two of the more pragmatist justices, Kavanaugh and Roberts, to also be willing to pull the trigger and have a hard and fast rule against them, even though in their heart of hearts, they would like a more pragmatic rule. And it took the first hundred days of the Trump administration to get them to see that there just was no pragmatic option that would work. There are too many district judges and too many crazy things being done by the Trump administration to be able to say only do it in extreme circumstances. So, it took the Trump administration to get Kavanaugh and Roberts on board.
Sarah: I 100% buy that. I think that is a very good potential explanation for the why now? And interestingly, it's not necessarily [chuckles] good for Donald Trump that the chief and Kavanaugh now are on board.
Dan: Wait, why?
Sarah: Because I don't think it means that they think what Trump's doing is legal necessarily. They think it's so extreme that it forced all of these district judges into this position, and they want to take the heat instead of the district judges. And that's sort of a pragmatic problem for the judiciary institution as a whole, and they're two of the most institutional justices ever to sit on the court.
Will: If you were a justice who anticipated some showdowns of the Trump administration that you wanted to win and be on the strongest possible position, you might have wanted to get rid of nationwide injunctions precisely because they put you on better ground, both legally and strategically.
Sarah: I mean, Justice Barrett wrote this opinion first of all.
Will: Does she get an apology now? I don't read all these people who write all the nasty things about Barrett very much, but have they already apologized yet, or does that happen later?
Sarah: I mean, so interesting for the Chief to assign this opinion to Justice Barrett. Right, Dan? I mean, this was his choice to give it to Barrett. Now, on the one hand, she may be the one to thread needles very well, so that's a reason. You're not going to give it to Justice Thomas. He's not your needle threader on the court. But I do wonder if it's a little bit of like, “Hey, you guys have been attacking her. Her sister's getting death threats. Don't be so quick to judge or think you know her because of a couple interim relief decisions that she made.”
Okay, I want to move to the prediction part of the pod, which you guys are going to try to weasel out of. I already know. What effect does this have on forum shopping, Dan, this idea that you're going to go pick your judge because the relief that you were going to get was going to be so important? As many have noted, the government has to win every time, but the plaintiffs only have to win one time, that's no longer true. So, forum shopping, still?
Dan: Yeah. Although we need to resolve the state standing question in the scope of state relief question before we get an answer to that. Because if it's true that the state of Texas can still go to one of the single-judge districts in Texas and make an argument that, “We actually need the super broad injunction because otherwise it's way too complicated, only provide relief to our citizens. Everything stays the same,” except you need a state SG to be willing to do this, but given how polarized those offices have become, that's not going to be hard. So, I think we need to the answer there before we can make any competent of prediction.
Sarah: Will, I assume you agree with that?
Will: I was just going to say, I think it may just add a month to the timelines because it may mean that the district court's going to issue these rulings. They're not going to be as original the district court has ruled, but then the Fifth Circuit and the Fourth Circuit are going to rule, and then we'll have a circuit split pretty much 100% of the time. And so, we buy ourselves the time it takes to go from the judges of the Northern District of Texas and Maryland to the Fourth Circuit and the Fifth Circuit, which is not nothing.
Sarah: Okay, so forum shopping still a thing. Length of time probably extended by a few weeks. Is the interim relief docket, my short order docket about to explode? Will it look about the same? What do you think? Just sheer number of cases that the Supreme Court is deciding on that side of the ledger.
Will: My prediction is the past few months are the new normal. So, it has exploded. And until either somebody in the Trump administration decides to start doing less legally edgy things, or the district courts decide to chill out, or the Supreme Court decides that maybe the country didn't need to hear from us in every single constitutional case, this is where we are. And I don't think any of those things is going to happen.
Sarah: Hope they didn't have a lot of travel plans this summer. Like, now the D.C. Circuit, what was the chief judge's line? Only school children and Supreme Court justices get the summer off. Now, it's just going to be schoolchildren in the D.C. Circuit?
Dan: Yeah, that was John Roberts in a memo.
Will: All right, my one other take, sorry, I think this could be very bad because I think the Supreme Court's summer vacation is one of the most important things for our constitutional culture.
Sarah: At least, the Constitution is safe for the summer, also said by the Chief Justice before he was a justice.
Dan: The idea is that it makes them more collegial.
Will: Yeah, the idea is that tempers fly in June and then they chill out and they can come back. The only reason they were able to keep coming back and acting like normal people again is that they had the summer to chill out. And if we don't have the summer to chill out, I worry that's going to really defray the court's ability to work together.
Sarah: Okay, we touched on this very briefly, but Solicitor General John Sauer promised that even if, let's say, the circuits in the 22 states that we're talking about all say that the birthright citizenship executive order is unconstitutional, the only people who can appeal that are the ones who lost, meaning the government. But if they think the Supreme Court is going to say it's unconstitutional and that would then apply to all 50 states, or they can leave it just applying to 22 states and let it ride in the other 38, they have no incentive to appeal. This was brought up many times in the oral argument, and Solicitor General Sauer promised that they would appeal if they were on the losing side to the Supreme Court, even if they thought they'd lose at the Supreme Court.
Will, you mentioned, the possibility that they'll just fire John Sauer so as not to keep that promise. Dan, what's your prediction on whether the government appeals this, appeals any of these in a timely fashion, or if they find some other workaround, or they just fire Sauer?
Dan: I'm really not sure. I think that one of the hallmarks of this presidency is unpredictability to some degree, like this podcast, but probably to a much greater degree. So, I don't know. The other tricky piece of it is that the government's refusal to say that they would always defer to circuit precedent. So, it does create a hypothetical where every circuit in the country, let's just imagine, rules against a particular thing the executive wants to do. And yet, there's still lots of people who don't have any relief from that because they don't have the wherewithal to file their own suits. And maybe there's not a class action that gets going for whatever reason.
Sarah: Will, predictions, is Sauer out of a job? [laughs]
Will: I think he'll hold on somehow.
Sarah: I think at this point, the administration has to be incredibly pleased with John Sauer's record at the court, at the lower courts for his briefs. So, I predict that John Sauer's pluses massively outweigh this one promise that he made and that they actually don't mind going up to the Supreme Court and losing on something like birthright citizenship because it's a win-win in some ways. Either you get your birthright citizenship executive order, I think there's a zero percent chance of that, or you get to rail against the Supreme Court and they've shown that their side, their base, actually is great with that too. They love the victim side as much as they like the winning side. So, no downside in appealing to the Supreme Court. You either win or you win by losing.
All right, final thoughts on anything we didn't get to any amazing insight that we don't want to have to wait to read your law review articles. Although, again, my God, Will, if this wasn't an advertisement for writing great law reviews or maybe writing law reviews with Sam Bray, I don't know, but again, you're looking pretty good. You're sitting high on the horse today, so I can't believe you joined us. I'm surprised you weren’t invited to the Met Gala or Davos or something.
Will: I turned down the Aspen Ideas Festival for this.
Sarah: [laughs] All right, last ideas. Dan, parting thoughts.
Dan: We didn't get deep in the weeds on the Sotomayor dissent, but it had a lot of the stuff that you would expect in it, a lot of just responding to majority's arguments. Obviously goes through the merits of the underlying constitutional issue. And I do think it's fair to say there is sort of a hamlet without the prince feel to this whole thing that majority is just completely dancing around that issue, and they have formalist reasons for why. But it does feel a little strange.
Will: This is not a good vehicle, in some sense, for the court to decide the universal injunction issue. Although my future colleague, Notre Dame's colleague for a few more days, but my future colleague, Sam Bray, disagreed. He thought in some ways, if the court shows that they are willing to stick to the actual principles of no universal relief, even in this case, where the government's eventually going to lose in the merits, that shows it's like a real rule. It's not like, “We do this only when we like the policy anyway,” or something like that. That's showing they're really principled.
Dan: Although in the interim, there still is actually a lot of uncertainty. I'd like to think that this will lose on the merits, but I think a lot of people are really not sure. And in terms of the political optics, it's already being interpreted as a partial win for the birthright citizenship order, which it is.
Sarah: With that, we will conclude our crossover episode of Advisory Opinions and Divided Argument, or Divided Argument and Advisory Opinions, depending on how you came to this podcast. I'm Sarah Isgur. I've been joined by Dan Epps and Will Baude. This has been a real treat. I cannot thank you both enough. I think we need to do crossovers more, although I guess we'll see if your folks complain. Mine aren't going to complain. Mine are going to be thrilled. Your people though, who knows?
Dan: I think you have about 10 times the listeners. So, just to remind everybody, dividedargument.com. We're in your podcast apps. If you've never heard of us, check us out.
Will: And this is actually the 100th episode of Divided Argument. So, Sarah, thank you for celebrating our 100th birthday with us.
Sarah: Oh, my God.
Dan: I had all sorts of elaborate ideas for how to do the hundredth episode and I think this is better and also simpler.
Sarah: And will y'all be having another Divided Argument episode to cover the rest of the cases that we didn't obviously get to, we didn't intend to get today? The Supreme Court obviously decided four other cases 6-3 though not all along the same ideological lines. We had three on 6-3 ideological lines and 2 on 6-3 on my 3-3-3 where the Gorsuch, Thomas, Alito group was in dissent. Will y'all be covering those in your next Divided Argument or--?
Dan: Certainly not all of them. Maybe one of them at a time.
Sarah: All right, I will definitely go check that out on Divided Argument. David French and I will, I mean, we've got a whole post OT 24 plan for y'all, our Advisory Opinions listeners. David and I will be breaking down the rest of the cases in the next episode. We have the extended universe joining us for the episode after that with David Lat, Zach Shemtob, and Amy Howe from SCOTUSblog. So, Big July coming up for Advisory Opinions. Dan and Will, thank you again for joining.
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