As Will, Dan, and the Court all navigate their August vacations, we learn how a controversy over the qui tam statute indirectly saved Roe v. Wade. We then catch up on a few legal developments: The Biden Administration has renewed its eviction moratorium, confusing many legal observers in the process. The administration has also finally given us a nomination for Solicitor General. And a controversial cert. petition by the state of Oklahoma provokes an extended discussion of stare decisis and lawyer shaming.
As Will, Dan, and the Court all navigate their August vacations, we learn how a controversy over the qui tam statute indirectly saved Roe v. Wade. We then catch up on a few legal developments: The Biden Administration has renewed its eviction moratorium, confusing many legal observers in the process. The administration has also finally given us a nomination for Solicitor General. And a controversial cert. petition by the state of Oklahoma provokes an extended discussion of stare decisis and lawyer shaming.
Hey there, listeners, Dan Epps here. So we recorded this on Thursday afternoon. And, pretty much immediately after that, a surprising amount of Supreme Court news dropped. And the more astute court watchers among you may realize that this rendered a good amount of our discussion moot. And we thought about just re-recording the whole episode. But that seemed hard. So instead, we're just going to give you this warning. And then we're going to try to record a update episode that will try to get out to you quickly. But in the meantime, we wanted to give you this one, even if some of the stuff we talked about doesn't matter anymore. So, here we go.
Welcome to Divided argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
And I'm Dan Epps. So Will I'm just back from vacation, I think you might be about to go off on another vacation. But we managed to sneak in a recording session, because we didn't want to leave people hanging.
And with our brief period of overlap. This is how we spend it.
Yeah. And so we don't have any one agenda for today's episode, there's various odds and ends of Supreme Court related news and things like that actually provide a lot of fodder for us to talk about. So where should we begin? Should we start with some follow up from previous episodes?
Yeah, let's do that.
Oh, before we do that, though, let's remind people that we have transcripts of our episodes on our website, dividedargument.com. They don't go up right when the episodes go up, they're usually delayed by a few days or a week or so. But if you're looking for an episode, and you want to figure out what we said, or you're trying to remember what we said, you can use the transcript, it has timestamps on it. So we thought that'd be a handy resource for people.
And if you have friends who don't listen to podcasts, and therefore are not listening to this right now, but who you want to show something, you can point to the transcript instead, if I know some people don't like podcasts, so that's an option as well.
Yeah, like some of your co-bloggers on the Volokh Conspiracy pointedly said, so. Okay, what else?
So I feel like every episode, we end up with more feedback related to the standing decision in TransUnion, which we talked about some of our episodes ago. And then we got into the question about, you know, can Congress get around this by adopting qui tam statutes? And we talked about that.
Well, it turns out, there's still more to learn about constitutional controversies about the qui tam statute. A friend of the show sent along several really interesting sort of links and historical tidbits about how hot all the fights in the Justice Department were back when Bill Barr was the attorney general the first time, about the constitutionality of qui tam laws.
And actually quite historically important, as it turns out.
Because my favorite one was a tidbit from the blog Lawyers, Guns and Money, which explained from the Jan Crawford Greenberg book, Supreme Conflict, which I read a long time ago, but I'd forgotten this detail. That Ken Starr was apparently not selected for the Supreme Court vacancy that ultimately went to Justice Souter in large part because he'd been involved in a dustup about when he was Solicitor General, but whether the [inaudible 00:03:36] justice should argue that qui tam provisions were unconstitutional, and he said no.
Right. So, that isremember, Barr was at the time very strongly against them, thought they violated Article Two, and Starr had the, I think what is now the more conventional wisdom that they're consistent with Article Two, to have these private relators. And, but that put him on the wrong side of Barr, and then also of Dick Thornburgh and various other people in the Justice Department which meant that-
Future judge, no longer judge.
So which meant when the time came for the Souter vacancy, Starr who otherwise would have been the pick was nixed because he did not pass the qui tam litmus test. So, in other words, the unconstitutionality of the qui tam statute was so important to Bill Barr, that he gave us David Souter.
And think about what would have been different if Starr had been on the court. Probably Planned Parenthood versus Casey comes out the other way, and maybe Roe is overturned, a bunch of other things would be very different about the law. But these important lawyers in the Bush Justice Departmentand White House stuck to principle and refuse to recommend Starr.
One other interesting thing that I just hadn't noticed was that in the Supreme Court case that upholds the qui tam statute, we've talked about a couple of times, Vermont versus Stevens, there is a footnote, or the court notes, that it's not resolving any of the Article Two or appointments challenges questions to the statute, those remain open. It's only resolving the article three standing question. So, maybe Bill Barr will get his revenge one day?
I hope not. But, you know,depends what you like. And then you also shared with me this link to this interesting oral history that Bill Barr sat for an interview and did an oral history that slightly redacted, I guessbecause he talks about some secret stuff, but there's a brief excerpt where he talks about how there was this dust-up about qui tam.
So, check it out. I will try to remember to put links in the show notes. Maybe we'll forget, but I'll do my best. I think that's about it. I think we've gotten other random pieces of feedback, but why don't we plow on?
Okay. So what else has happened while you're gone, Dan?
This is an important Supreme Court angle. It's not really, it’s not exactly something that directly happened in the Supreme Court . But it's related to something that happened in the Supreme Court, which is President Biden issued his new eviction moratorium, in part in reaction to what the Supreme Court had done earlier, when the earlier version of the CDC's eviction moratorium had been challenged in court.
This is-There have been various kind of moratoria that have been in place. Originally,I think the first one was in the original COVID relief bill. And the idea being you want to keep people in their apartments and houses to minimize homelessness and minimize spread of COVID. Many ofthese, of course, been challenged because they've imposed a burden on landlordsand costing them a lot of money because they want to evict people. And it's been the subject of litigation. So how exactly did we get here?
Okay, yeah. So once upon a time Congress imposed this eviction moratorium, then that ran out and the Center for Disease Control, famously in the news all the time, used a relatively obscure regulatory provision to impose an eviction moratorium by statute. It's a regulatory order, which then gives rise to questions about like, is this really how broadly you should read it? Does it raise [inaudible 00:07:11] litigation problems? I think one district court even found a Commerce Clause problem with the order. All though that's [crosstalk 00:07:16].
And to be clear, when this first happens, it's under the Trump administration.
Yes, yes. It's the Trump administration CDC that does it to begin with. And that has been challenged in court. And as it gets extended, it’s, you know, some courts have validated it, some courts have upheld it. And I think where recently, the Sixth Circuit ruled that the government was likely to fail, was likely to lose, that the moratorium was likely to be illegal. And the DC Circuit ruled that the government was likely to succeed. And then the government appealed to the Supreme Court. And... No, sorry.
No, no, no, that's wrong. The Alabama Association of Realtors went to the Supreme Court to vacate the stay of the District Court.
The Alabama Association of Realtors prevailed in the district court, in the District of Columbia, getting a ruling against the moratorium. The DC Circuit stayed that victory. So it said, we're going to leave the moratorium in place while we see what's going on here. Then, the Alabama Association of Realtors went to the Supreme Court and asked them to lift the DC Circuit's stay of their victory. So give us victory immediately.
And the Supreme Court five to four refused to do that. Five to four, the Supreme Court said no, we're going to leave the stay in place so the government can continue to enforce the eviction moratorium. But crucially, Justice Kavanaugh wrote separately to say, I actually think the government is like little lose here in the end, but I would leave the state in place for now to give them sort of time to wind this down. But they want more time than that they're going to need to go to Congress.
Yeah. And so the specific sentence is, "In my view, clear and specific congressional authorization via new legislation would be necessary for the CDC to extend the moratorium past July 31."
And so people have read-some people sort of read this predictively and you say, well, it's five, four, but you've got Kavanaugh basically saying he thinks they don't have power to do this be on July 31. And then you've got four dissenters, Justices Thomas, Alito, Gorsuch and Barrett, who would have granted the application to vacate this day. And let's just add those up. And there must be five votes against any eviction moratorium. That's kind of like the-
-the sloppy kind of common sense, predictive approach.
And this is a great formalism versus realism moment. So as a formal matter, first of all, this is all just on an application to vacate a stay on the shadow docket. So its presidential status is very low. And second of all, the government won. Formally the government won, they got to keep their stay. As a realist matter, though, this looks kind of like a loss because we now see that Justices Thomas, Alito, Gorsuch, Barrett, and Kavanaugh have all said we're going to lose after July 31. It's after July 31. So, we can't do this anymore. That's the situation the Biden ministration confronts. They then behave in a very confusing manner. I don't even know I totally understand what has happened here.
Yeah. And so let's try to work through to the extent possible, and we're going to be relying pretty heavily on a really good Lawfare post by friend of the show, Jack Goldsmith, who has some interesting, I think, you know, correct normative takeaways from this. But before we get to that, he sort of walks through it. Which is you have public statements by a couple of people in the administration, including Jen Psaki, is that how we say that? The press secretary.
I don't watch enough cable news. I just read all my news. So, I don't actually know how we pronounce that. You've got, you know, Fox News on all the time.
I don't watch anything.
You don't watch anything. You don't watch TV of any kind?
Sometimes, but usually not.
Okay. Sometimes though, right?
I actually don't have a login for Netflix.
Too much Disney Plus.
Okay. Well, and sort of said publicly, "Well, you know,we'd like to do this, but it's unlawful." Basically, or but the Supreme Court has told us we can't.
Right, and they're [crosstalk 00:11:22].
Which is not true.
Well, it's not technically true.
Yeah, it's not. The Supreme Court, reading the tea leaves, there is reason to suspect the Supreme Court would not let you go further.
Not just tea leaves. Five sitting Justices of the Supreme Court communicated to us that they intend to invalidate this moratorium. They just communicated it in a forum that doesn't count as binding precedent.
Yes, although, as Jack notes in his post, the four don't tell us exactly why they did that. And they don't tell us exactly how the court would approach, let's say, a different moratorium, you know, revised moratorium? I mean, there's a lot of possibilities here that Jack kind of walks through about what the administration could have done. And instead, basically, the short version of what they did is basically announced that they think it's illegal, and then do it anyways. And then so make it look like they're doing something really unlawful, when in his view, they're actually not.
Right. I mean, so there are two different ways I think this could have been happening. So, one possibility is just that everybody in the administration is super realist. And so the shorthand for what the Supreme Court did was say this is effectively not going to work anymore. And, even though you have to add the dissenter, even though it's not sort of formal, it's pretty obvious that's what's going to happen. And they're just being legal realists that many of our readers are.
The other possibility is that they were exaggerating, kind of intentionally, to pressure Congress to act. I mean, maybe those go together. Look, it's probably not going to work if we do this again. So Congress, you guys really need to do something. And they communicated that to Congress by saying, look, we're powerless. The Supreme Court has ruled we can't do anything. The problem is Congress didn't buy that. And so several people in Congress, you know-
Including Nancy Pelosi, Speaker of the House.
Nancy Pelosi told the administration to get better lawyers.
Yeah, this is ridiculous. And then the administration did something kind of weird. We're told that, like, they consulted with some law professors--Martha Minow and Joe Singer at Harvard and Walter Dellinger at Duke. And like those folks all thought it was fine to extend the moratorium.
Well kind of. So, I'm not sure what question they were asked, but yes. So I think first it [inaudible 00:13:30] the White House Counsel's Office.The r eports are, anyway, they asked the White House Counsel's Office, if we could do this. The White House Counsel's office said no. And then they didn't like that for a second opinion to like some random law professors they knew.
Distinguished law professors.
Not so random.
Incredibly distinguished law professors, if you're listening. Part of what's funny about that is usually you go to the White House Counsel's Office only once the Office of Legal Counsel and Department Justice has already told you “no,” and you need a second opinion from somebody who's like more political and more willing to give you a yes.
So the usual tradition is, OLC is moderately biased in favor for the President. So you go to them, you get a moderately biased answer in favor of the President. Great. If even they won't give you a “yes.” Then you go to the White House Counsel's Office, which can usually be counted on to like, give you a yes that OLC won't sign off on. So when even the White House Counsel's Office says “no,” then apparently the backup, backup, who will really give you a “yes” is-
Certain liberal law professors.
Now, one other puzzle here is we don't know for sure if they asked OLC. In the various reporting they ever tell us they asked them.
I don't know why you would ask the White House Counsel, if you hadn't asked OLC.
And we don't exactly know was the White House Counsel asked, like, is this likely to work versus is this unlawful, which is not the same thing.
Right, exactly. So I love this whole thing, because I feel like we're finally getting to rediscover our inner departmentalists and inner legal formalists. So as a matter of formal law, this is all fine. The President's view is the statute gives him this authority and the statute is not unconstitutional. That's been his view all along. The Supreme Court hasn't even officially ruled otherwise. So we don't even have the question of if the Supreme Court disagrees with the President can the president keep pushing his view? Because the Supreme Court hasn't officially ruled otherwise. And so,the president is going to continue to press that view until somebody with authority tells me he's wrong.
Yeah. Enjoins him are clearly states that this is a binding precedent. This is unlawful, I mean, it seems fine.
It's just the having sort of first wrongly claimed that they were bound by Supreme Court precedent not to do this and try to get other people to do it for them. And then put forward this new moratorium, which doesn't seem legally-
It's more tailored-it's more tailored than the original one is different.
Well, it's more tailored, in the sense that it applies to only some places and not others.
Only places that have high rates of transmission, which is still like most people in the country. Right? So, and none of the legal arguments against the moratorium turned on the fact that it was applied in places with low transmission rates.
Well, sure. Although the legal arguments about whether to vacate a stay could be differentbecause the equities could change. Because that was the original context in which the court confronted the question.
Right, just the odds of succeeding on the merits, which seems like the odds that it succeeds on the merits probably haven't changed very much. So now, I do think the administration, if they weren't going to lose in the Supreme Court before they're going to lose now.
Yeah, the atmospherics are not good. It hasn't been, you know, messaged in the right way. And what Jack says is this is kind of a debacle, kind of a tragedy, because there was a strong argument, at least, that the administration should have been able to make that it was lawful. And maybe that gets rejected, but- but now they're just going out of their way to kind of look like lawbreakers, which is not the right look.
Exactly. I mean, look, I don't even know that the moratorium was unlawful in the first place. I mean, I get the argument. I don't think it's a silly challenge. But the statute gives the CDC pretty broad authority, just on its face to make regulations necessary to prevent the introduction, transmission or spread of communicable disease from one state into any other state.
It takes a little bit of a reach to decide that individual evictions in one state are going to lead to the interstate spread of pandemics, but not that much of a reach.
It's not crazy.
Especially in the world we live in, especially given the number of people who are evicted who become homeless, the obvious spread from state to state of COVID, even now. So had this just been sort of like neatly and cleanly litigated to begin with, I don't think they had terrible chances. I just think, coming into it now people on the Supreme Court, who were otherwise disposed to believe excessive power grab, are going to have an easier time believing that.
Why do we think this has become such a kind of leftright partisan case? Because it's kind of interesting, where it looks like the views of the Justices on this, at least at that stay stage. The vacator of stay stage or, like, exactly along the traditional spectrum, like the four most conservative Justices want to get rid of this.
Justice Kavanaugh, who's like viewed as slightly less conservative than those other four, is like probably, but I'm not going to do it. And then Chief Justice Roberts is viewed as slightly to the left of Kavanaugh is with the other four and saying this is fine, or at least not voting..Notnot expressing any view that the decision of the DC Circuit should be overturned. So-
And it's interesting...
Why did it breakdown that way? Will it break down the same way if Trump were still president?
That's exactly what I was going to ask you. So I mean, it's a fair question. If it wouldn't, that's a little disturbing. I- I think it would, because I think if you do just like a true textualist interpretation of this sentence in the regulation, I think you'd be inclined to roll for the government. Just like on its face, it seems like this is plausibly within that authority. But the reasons not to are the various kind of constitutional concerns hanging in the background. The kind of non-delegation concerns.
You mean, the third amendment argument.
Well I'll talk about the third amendment in a second.
But the non-delegation argument sort of hanging in the background of all these broad grants of regulatory authority, I think forces judges who believe in non-delegation doctrine to read these things a little narrower. The Commerce Clause thing hanging in the background that, like, this is kind of letting everything turn it interstate. There's like a non-frivolous Takings Clause claim hanging here.
And if you've got all those things hanging out there, then you've got more of an intuition that something funny has happened here. Then apparently, there's also an argument this is a third amendment violation.
This is one of the only, even remotely plausible third amendment arguments we've seen. The idea being the argument is, well, you're making landlords keep some people in property they own. Which is basically like quartering, and some of those people are soldiers. You know, some of those people are in the military. So basically, this is you're quartering troops in violation of the third amendment.
"No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law." And I take it the idea is we're in a time of peace, not a time of war. Even though there are-
War on COVID.
Well, and we have the authorizations for the use of military force are still in play.
Oh, yeah, there we go.
I mean, we're technically at war all the time.
There we go.
And maybe you'd say, “but in the manner to be prescribed by law,” which means Congress has to do it, not the agency. I mean, look, even if this were right, it would only yield as applied challenge for the few people, the few beneficiaries of the eviction moratorium who were soldiers. So, it would still support the stay, I would think.
Yeah, I admire the chutzpah. This is an argument that was made by the... This is described as the normally idle Third Amendment Lawyers Association. I didn't know that was an organization. I don't know how much work they do.
I think it's awesome that they exist.
They're ready. I think there was a major set of third amendment violations in Alaska during World War Two. I think, law professor Tom Bell wrote an article about this. That we actually did, like, quarter a bunch of troops without the consent, in various houses in Alaska, when we were sort of fighting the Pacific Theater. Eventually made reparations for that. But that would be the last real third amendment violation.
Yeah. Doesn't come up too much. Yeah. So I don't know. I do wonder how, what the atmospherics of this would have looked like if this were still the Trump administration. And it is interesting that the legal challenges really get going and get to the court, you know, only after Biden becomes president.
I think they were going the whole time. It takes a while for them to go up.
Yeah. Yeah, fair. But it just seems like the temperature turned up maybe a little bit. Because I was-I heard about the eviction moratorium, and I was aware of it last year. But it just seems like we started hearing a lot more about it recently.
I don't know.
Maybe it's just because the longer it goes on the more, kind of, unreasonable it's seen as being. I mean, as a policy matter, it seems like there might be better ways to do that. Because there are also funds that are being made available to landlords who are affected by COVID. If they're not getting paid, they can get various kinds of relief funds. But how to get them as complicated.
And it just seems like if you would somehow design a relief package that had paired these things together to say, look, if because of COVID, you've got some people in your rental units who aren't paying rent or can't pay rent, you can't evict them, but the government is going to make up the rent payments. And then, kind of,everybody's happy. But that's not the way it works out. And so, we're going to have to battle this out in court.
Well, I mean, and it's obviously different if we're talking a few months, or we just think that having any evictions right now will contribute to the spread, but then we'll have the whole thing, taking care of. Maybe it would have made more sense as a policy than if we realize it's going to take years and we're never going to really reach COVID Zero.
Yeah. Which we probably aren't. But we can do this podcast regardless.
It's true. This is a COVID proof...
We are very socially-distance on the show. We are hundreds of miles away.
It's true. Anyway, I predict the Supreme Court will have to issue a ruling on the merits of the moratorium.
Maybe, or I think there's also fair to just say that the DC Circuit might say, "Look, we're not going to stick our neck out on this, given how badly they've screwed this up. Like, if you've basically all been admitted, this is illegal, fine just go away."
If the DC Circuit invalidates the moratorium and the SG seeks cert, which I would think they would have to then the Supreme Court has to take it. It'd be pretty, pretty embarrassing for the Supreme Court not to take it.
They're beyond shame.
I mean, to vote to vacate the stay, I would think they would need to conclude that the petitioners were likely to succeed on the merits. And this was an issue which the petitioners are likely to get cert. So, it seems odd-
But if it comes out the other way. But then if they've already succeeded on the merits below, then you don't need to grant cert. It flips it around.
It's weird to say this is such an important issue that we would grant cert when the non-governmental party seeks cert. But we would not grant cert when the SG cert, even though the SG-
Yeah. Although, what if there's no split at that point? All the lower courts are in agreement. And I don't know, I don't think it would be that crazy not to take it. But we'll see. Do you think that would be something that would actually have to be argued? I mean, it's going to be... These things are kind of...
I mean like on the normal course. I mean, you don't think this would actually be resolved quickly under the shadow docket?
I mean, they might quickly decide to grant a stay or not. But I think they owe the government the chance to oral argue and brief, the legality of a major policy of the administration.
I mean, it doesn't seem likely to be mooted. I mean, because now it's August. I mean, this is now it's going to have to go back through the lower courts. I mean, this might not even get to the court again, like this term. And, you know,eventually this is just going to be moot don't you think?
I don't understand how it would be moot. Because the administration would finally just get rid of it.
Well, I mean, do you think they're going to continue the... I mean, eventually they're going to... Presumably, this is not a permanent moratorium. Right?
I think the moratorium will be in place for long enough for the Supreme Court to rule on it.
Like two years?
We'll see. Okay. Well, then we'll have to keep an eye on that one. Maybe that will give us more to talk about if it reaches the Court again. What else? We finally have a nomination for Solicitor General. I think it's the longest we've had without a nomination for the Solicitor General in a new presidential term, maybe ever. Or at least, certainly in recent memory. And apparently there was a lot of back and forth, disagreement between DOJ and the White House. The nominee is Elizabeth Barchas Prelogar, my law school classmate, and who I clerked with.
Oh, really? I did not know that.
Yeah, who is one of the hardest working lawyers I know. Has been, you know, really, really working hard and has done... She has been in the Solicitor General's office as an assistant and was Principal Deputy Solicitor General, she also was detailed for a while to the Muller investigation back when that was going on and back when everybody thought that was going to save democracy.
And so a very kind of, I would say, traditional pick for the job. She is only the second woman who would hold the job after Elena Kagan. So that's a good development. But I'd say kind of traditional pick for the job, in the sense of clerked on the Supreme Court, worked at a firm, worked in the SG's office before. And apparently the White House had been seeking a nominee that would bring kind of diversity along some number of dimensions.
And having the second woman Solicitor General ever was not good enough?
Apparently not. It's been reported that Leandra Kruger, who is now a justice on the California Supreme Court, and previously had worked in the SG's office was offered the position not once, but twice and turned it down both times, which is interesting. And there's a lot of reasons.
Could be she just doesn't want to live in DC, could be that she really likes being on the California Supreme Court. She is a one of a couple people on the shortlist for a Supreme Court vacancy if one comes up while Biden has an opportunity to nominate someone. And so maybe she's keeping her powder dry for that. But ultimately, the White House and DOJ resolved the logjam. And we have a nominee. And I would imagine she'll be confirmed pretty straightforwardly. I could imagine her getting some questions about the Muller investigation in the confirmation process.
That's the only thing I could really imagine being a hiccup.
The other interesting wrinkle, I guess, is that she's been the... She's right now the acting Solicitor General. Because she's right now the principal deputy Solicitor General.
Yeah, I was trying to figure out does that mean, does she have to stop being acting now while she's nominated? I think she does.
I believe so. I believe under the federal vacancies Reform Act she can't act while also being the nominee. And neither was the acting Solicitor General when Elena Kagan was being confirmed, for instance. So that part's a little awkward, but it also means that for legal reasons...
But Kagan was never the... She was not already in the office as principal deputy. She was just sitting at Harvard.
That's right. But it also means that your nominee's already been doing the job. Has already argued a couple of cases, again, in front of the court. Everybody seems to think she's doing a great job. So, that seems like it will be pretty, pretty straightforward.
I guess one other interesting thing just is, this is a couple different ways. The CDC moratorium, these reports about the question with the nominee a couple different places we've seen, maybe the White House and DOJ having slightly different agendas. Or slightly different ways of treating the Biden administration’s legal prerogatives. With DOJ seems like being a little more traditional, the White House...
Which is, I think sort of what you want out of DOJ. You want stability. I think that matters. Even if people find that frustrating when it's a congenial administration, it's important to have that when it's less congenial administration. Because we saw some-some norm-setting by DOJ in the previous administration in the sort of waning days.
I think there's lots of things that people who are not fans of President Trump think the DOJ did that they're not happy about, and I can point to some of those things. But we did see some people in DOJ refusing to go as far as the president wanted, which is probably good.
And often the SG and the principal deputy act a little bit of sort of the go-betweens, and the ballast on those kinds of things. So, you do wonder if they'd had an SG in place before the eviction moratorium thing for instance, could that person have told them, given them better messaging, and not say, we're going to go divide the Supreme Court.
Would that have been any different? It justbasically we have the current acting SG remove the acting title.
Hey, I don't know. I mean it depends on how those-
Depends on how those internal political dynamics are different at that point.
Yeah. And also, how you even feel yourself like in terms of your... It's great they have Ms. Prelogar asSolicitor General. I hope they listen to her. Seems like it would do the administration some good.
All right. Congratulations to her and trivia. I think she is the only, and this is probably a record that will be unbroken, she will be the only Solicitor General to have participated in the Miss America competition.
That's my guess. I haven't done the homework to confirm she's the only one, but pretty sure.
Well, guess we'll see what the future holds.
It's a state. What about it?
Well, it used to be a state.
It's a chopped up state right at the moment.
So, we've mentioned a couple times on the show before the big Supreme Court case involving Indian territory in Oklahoma,McGirt. In which the Supreme Court five to four, [inaudible 00:31:05] Gorsuch ruled that substantial portions of eastern Oklahoma are still under the jurisdiction of the five tribes. In the year that's happened since then, there's been spent a lot of fallout from that right as the state tries to deal with what that means for its criminal and civil jurisdiction. Well, we now have a new very interesting cert petition at the court that, an effort I guess, to deal with the fallout by...
To either limit it or completely overturn it.
Can we have a take back?
Yeah, but this came up before the cert petition stage, we should make that clear. Because I remember being aware of this, but being a little confused as to what was happening, which is-
I think we talked about on the show.
I think we mentioned it, maybe we talked about it, and that part got edited out because I was too confused. I don't remember.
Maybe, sounds like something that might have happened.
Someone should search our transcripts to figure that out.
So the case is Oklahoma vs. Bosse, I think. Shaun Bosse. And it's a case from the Court of Criminal Appeals of Oklahoma, where the state of Oklahoma has already gotten a stay, sort of before the cert petition came. And now the cert petition is in. And the cert petition-
So we know that some number of Justices on the court think this is important.
We know that six Justices have not publicly stated they would deny the application for a stay, and at least five of them granted it. So, it's on their radar. I think we could say it's not at all unlikely to be granted. And although what that would mean and what the case is, is very interesting.
Yeah. Because there's-there's three questions. And do you think that they might grant on all three? Let's talk about them. So, two of them are kind of about limiting the fallout. So you want me to read them?
I'm just going to say it's in classic pyramidal style. So from like, the smallest question to the biggest question.
So the smallest question is whether the state may impose procedural or equitable bars to post conviction relief where the original prosecution will should have been barred by McGirt.
So there's, yes, we violated McGirt. But can we please keep everybody in jail anyway?
Yeah. And then second is whether states, notwithstandingMcGirt, still have the power to prosecute non-Indians who commit crimes against Indians in Indian country. So, McGirt himself was an Indian who committed a crime in Indian country. But, that ruling has been extended by the Oklahoma Court of Criminal Appeals or it has been applied to non-Indian defendants who commit crimes against Indians in Indian country.
And I think this is the widespread assumption about how-
-Indian jurisdiction works. And there are-
-like, Supreme Court cases that say this. All the states has maybe their dicta. So this is asking for a relatively big shift, even if maybe technically-
-it's not a precedent.
And it's interesting, because one of the places in the petition talks about how, and this is in relation to the next question, which we'll get to in a second. But the brief says now, when you're in Tulsa, and you call 911, the 911 operator says, "Okay, are you an Indian or not?" And if you say, yes, they kind of divert your call to tribal 911. But that's actually from a part of the brief, part of the petition that is involved, that raises this third question. The third question is whether McGirt should be overruled.
Isn't McGirt just a year old?
Yeah. And, you know,what changed? Why would anything have changed since 2020?
Well, maybe the Justices are just... They're going to have better lawyers for the state of Oklahoma. Maybe there'll be impressed by the consequences. I guess maybe-
Has anything else changed on the court since 2020.
Do we have a new Justice or something?
Oh, yeah. We have a personnel change. Justice Ginsburg was in the five to four majority in that case, and now we have Justice Barrett, who is a five to four with Justice Gorsuch plus liberal justices in the majority. But if Justice Barrett had been there and had voted differently, it would have been five to four in the other direction. And so, some people are sort of saying this is kind of shameless to just go to the court the next year, as soon as there's been a change in personnel to try to get a do-over on a ruling. I think it's more complicated than that. But what do you think of that argument?
Well, I guess my first gut is that's just ridiculous. I mean, if the personnel has changed so that the Supreme Court now has a different view, I don't know, why wouldn't you ask them to change their mind? I mean, maybe Justice Barrett has use of stare decisis. And that means she doesn't want overturn McGirt. That seems plausible, given her prior writings. But why wouldn't we at least start there?
Respect for the majesty of the law. And we're not just treating the court as a mere exercise in vote counting and ideological prediction. I can see why the litigant, why, you know, the state of Oklahoma wants to do this.
I mean, yeah. And also, I don't see what it has to do with politics. Like, of course, it's an excise into accounting. Even if you think none of the Justices are ever political, and it's all just about their legal philosophies, the way we translate their legal philosophies into judicial decisions is we count them, and see which one has five, which one has four.
And that may well be different now. I guess the other argument they make in brief, is they’re basically like, "This is really bad, like this is causing a lot of problems." And now, they may not be right about that, or they may be overstating the problems. But that is their argument, that this is just causing chaos. This is, you know, letting... It's going to lead to a bunch of dangerous criminals going free, it's going to lead to a bunch of crimes going totally un-prosecuted, because the federal government is overwhelmed and tribes are not bringing the sort of more minor cases. And this is just really bad.
If you call 911. And they say, "Are you an Indian?" If you say, “yes,” you're put on hold, and like nobody has time to answer your call. It's so overwhelmed. A bunch of stuff like that. Maybe overstating it, there may be counter arguments. But that's the argument. And that's not a crazy thing to emphasize to the Court. That you did this thing. It seemed like a big deal at the time. It's like a really, really big deal. And maybe you didn't totally think through exactly everything that was going to happen.
I mean, it's hard for me to imagine that one moves anybody. Because it's like... I mean, it's not like they didn't make this point at the time. I think there's some pretty widely circulated stuff from Lisa Blatt about how it's going to be total chaos in eastern Oklahoma. And I don't think anybody, like, didn't believe the state exactly. It's hard to imagine Gorsuch saying [crosstalk 00:37:35].
Well, why do you think Justice Gorsuch doesn't note a dissent from granting the stay in this case?
Maybe he wanted to grant the stay, maybe he didn't, but he at least he didn't note that he...
At a minimum, I'm sure Justice Gorsuch believes that the state can impose procedural or equitable bars to post conviction relief. The thing about packaging all the questions together is I mean,-
Justice Gorsuch, who brought us a broad statement of constitutional rights in Ramos and then authorized a broad take-back on the retroactivity, remedial side, in Edwards versus Vannoy would be, I'm sure perfectly happy to do something analogous here. And say, McGirt doesn't mean necessarily reopening a bunch of final judgments.
Yeah, maybe that's right.
And actually you could imagine one interesting thing the Court is going to have to confront with these three questions for instances, is do you grant them all together? What do you do if three or four Justices want to reconsider whether McGirt is overruled? And another two don't want to consider that but do want to consider procedural bars? They may have to-there may be some...
Yeah. And we'll obviously depending on whether they limit the grant to certain questions presented, we'll get some read on what the appetite is on the court.
I guess the other thing is, in terms of the consequences. I mean, all along, Oklahoma claimed a lot of severe consequences. And the response was, “yes, you guys can probably deal with them if you work out enough deals with the tribes and, you know, get federal legislation.” And the thing is, that's probably still true. We know that hasn't happened yet.
One thing in the petition, they're just basically saying we're trying. The tribes aren't going along with it.
But you might say try harder, or... Whenever two sides can't come to an agreement, and one side says I'm trying but they're not going along, I always think like, well, maybe the bargain has to be struck at a different price.
Yeah. So another thing that's interesting about it, although I don't think it's actually that unusual, as people on Twitter thought. This is a petition brought by Oklahoma, you know, trying to get this capital case reinstated. And the counsel of record is Kannon Shanmugam, Paul Weiss, one of the country's leading appellate litigators and friend of the show.
And some people were sort of engaged in what we might call lawyer-shaming. Why is this firm trying to get this capital case reinstated? And my view of that is two things. So one is, I don't think this is shameful. I mean, I think that there's an interest in the state and trying to, you know, vindicate its criminal judgments. And I just don't think it's beyond the pale for a serving court litigator to be involved in that litigation and trying to make the best possible arguments to the Court.
But at the same time, I didn't agree with some of the folks who say lawyer shaming is never the right answer, it's never appropriate. You should always just say like lawyer should be able to represent whatever they want and not be criticized for that or shamed for it. What do you think about that?
I think I agree with all that. I guess I think there are also two different kinds of lawyer-shaming that are helpful to distinguish. And I agree with you, I don't think there's any [inaudible 00:40:38]. I think this is a serious question. And state of Oklahoma may be right about at least one of their three questions presented, maybe two. I think one version of lawyer-shaming is just something like, "I don't like this position. I don't like that you're arguing this." Sort of like just expressions of our own views. So say, like, this is bad.
But that's okay. I mean, there should be some times where...
That's fine. That's totally fine. I think that-
What if Neal Katyal had got up in court and said that child slavery is great. That's not what he said in the case, everyone was criticizing him about. He said, something, basically defended his client on charges that they aided and abetted child slavery, but there should be some arguments that we just say, you shouldn't make those arguments. Right? That's shameful.
Or the briefs like trying to overturn the election on like frivolous grounds. Those are bad arguments. Those are wrong arguments and those are, like, shameful, those lawyers should be shamed. In addition to being maybe-
Just to be clear, the second step that I worry about a lot more. And I think there's a place for it, too. But it's a version of the, I'm not just saying like this, but other people shouldn't associate with you. Like, trying to encourage-
Boycotts and things.
Yeah, boycotts, trying to encourage schools not to let law firms interview at their OCS or trying to encourage your friends, like, "Don't go work for Paul Weiss this summer because they took this bad position." The kind of like the boycotts, the meta level.
Do you think that should never be appropriate, or just think that it's that pressure is being brought to bear in cases where it's not appropriate?
I'm not a “never” guy. I think there's a big difference in the first in the second, and we ought to have a pretty strong norm against using the second outside of [crosstalk 00:42:22].
I mean, because what if a firm is like the lead paid counsel for the Daily Stormer. The Nazi publication, and like, people are like, "Look, you really shouldn't be doing that. Cravath, or whatever, you shouldn't be doing that." And just imagine a world where the existing pressure. Because there's already going to be pressure from other clients not to do-engage in various kinds of representations.
That is going to be true no matter what, no matter what we conclude about this. But like, shouldn't there be some situations that we just feel like that's beyond the pale, you shouldn't be taking money to do that? And we don't want to have anything to do with you. We don't think anyone should have anything to do with you. I mean, this is how we enforce norms. This is how we, in a society, we sometimes say things are out beyond the pale, and that's okay.
Right. But again, to be clear, I think there's a big difference between saying things are beyond the pale, and then saying and also... Suppose it's Cravath. Suppose the Daily Stormer has some kind of a like-
Which is not true, by the way. Before we get sued , we should just say this is not actually the case.
Suppose there's some hypothetical law firm that's called on to represent some horrible entity that's like trying to seek relief from a default judgment that was entered against them in another jurisdiction and whatever. I don't think that you should like shame your friend who's going to go work for another office of that firm, doing nothing at all related to that litigation.
Well it depends what we mean. I mean, I'm not necessarily saying like, you should stop being friends with people. But I think you could be like, "You guys shouldn't be doing this. This is bad. You should, I think you should tell your bosses not to do it."
Suppose it's like, my boss has nothing to do with this.
He does have something to do with it. He's making money off of it. Your boss is a partner at the firm. This is where they're making their money. There shouldn't be a cop-out like that. I mean, the thing is, I think the point is that people will make this argument that we should not shame. I think what we're really saying is, I don't think you should shame about this thing. But I think it's hard for me to believe this is never something that's in bounds. That there's got to be some things...
I'm not making an effort argument.
Yeah. I think there's a difference between one of the things that people say and this is something- a point that Orin Kerr raised on Twitter. And I agree with Orin about plenty of things, but not about this. Where he said well like, remember when people were criticizing firms for representing Guantanamo detainees? And like, therefore, we shouldn't be... The Lincoln project shouldn't be shaming firms that engage in elections subversion efforts.
I'm like, well, I mean, we can make a merits determination. You can say like, there is a difference between like, representing some one person who's, like, you know, stuck in detention, in this secret military base, versus like an active effort to steal an election. Could be the case that like one of those things is just worse.
So, we can make a merits determination. I'm not even sure whether we'd agree about that merits determination. I think terrorism's really bad. And I think my point is I actually don't think... I think it's really useful to have a lot of-
I'm not saying terrorism is good. But I do think there is a more longstanding norm that like individuals who are being prosecuted deserve to have representation, and that it's not shameful to do that. And that's different from, say, taking money to represent larger organizations who are doing things that are bad.
I'm not sure, whether the money makes it better worse, to be honest. I think we need to make fewer merits determinations here. I think it's good to have social norms where we judge people for their own conduct and try not to hold them responsible for the conduct of other people in their orbit. So, it would be the bad, it would be bad, to say to your friend, that they are somehow responsible for or like obligated to lobby the partner, to lobby some other partner to not do a bad thing.
In a world where all the power is vested in these huge organizations. That basically means we don't have any meaningful enforcement of norms.
No, I don't think it means that at all. I think it means... So here's the big worry, is I think if we do this, and we're doing it a lot, we just end up with way too much sorting. You end up with a lot of people going to work, ideological homogeneity, in law firms.
Well, no, but see, this is where I'm going to disagree with you. Because that problem is because we're using this mechanism too eagerly.
Like, the point is, we shouldn't be using this as just anytime anything a firm does, that's Republican should be shamed. Anything a firm does that's Democrat. Yes, that is the result. But there should be something, like, some ground where we can be like, come on, this is beyond the pale. And not that this is just partisan in a way that I disagree with.
I'm not disagreeing that there would be some ground. But I think, for the most we do way too much. And so, for the most part, we need a norm against it at this point. At this point, it's too easy. It's too common. And when you recognize that, like, you are yourself freaking some kind of a norm when you try to invoke this kind of collective responsibility. And sometimes you should break a norm. Sometimes it's okay.
Yeah, I don't know if I would necessarily put it as collective responsibility. I mean these decisions are made by organizations. I mean, a law firm is a thing unto itself, even though it is also a collection of people.
Sure, but so take the law firm. Suppose it's already true, we may not know, that one of the partners has said we shouldn't take this client, but they got outvoted. And maybe the normal norm is when you get outvoted on taking a client, you don't go public about it, you don't like... You cast your vote, you lost, you're not a decision maker on this one.
I think that's fine. I don't think there's like an obligation on members of the partners to like, speak out, or to resign, or to denounce it, or whatever. You can just...
At some point, though, don't you think... I mean, wouldn't there be some things where you think that there should be.
Probably at some point, but I think in general, we ought to observe the norm that in general not. In general, we should focus... In general, we should blame the people who are [crosstalk 00:48:04].
We're not talking about in general, we're talking about, like, beyond the pale cases. So like, it doesn't make sense to have an in general rule for beyond the pale cases.
I think 95% of cases that you will think are beyond the pale are not beyond the pale.
Yeah. But then we're just back to the merits again.
So well, that suggests we need to have a rule... But that suggests that having a beyond the pale rule-
Not it suggests we need to have disagreement about the merits.
No, that's not going to help.
We need to say, like, "Look you're wrong. This shouldn't be beyond the pale. And here's reasons why they shouldn't be beyond the pale." And some of those reasons are, you know, I think that... Think about the arguments about why we should give representation to criminal defendants. Makes the system work better, you know, adversarial system, big power of the government, government has great lawyers. And I think those arguments make sense when you actually consider them and you think, okay, this is why it's okay and good for firms to represent people that have committed horrible crimes or are accused of terrorism. Just because we need that to make sure the system works.
I don't think we actually need... The rule of law demands that we have firms going around, like making fraudulent claims that the election was stolen. I just don't believe that. And I think that if you play that argument out... I don't think it... I think the real threat to the rule of law is the firm's making those argumentsnot people shaming them for making those arguments.
So, look, I'm on record thinking that the people who tried to subvert the election are the real enemies of democracy, I'm happy to call them beyond the pale. But here's the thing. I don't think it works to say let's just argue about whether everything is beyond the pale. I think we're coming from such fundamentally different places, that if we argue whether things are beyond the pale, I'll just say “yes, this is all beyond the pale.” And now you're beyond the pale for trying to convince me that this is not beyond the pale so you go in the Gulag.
I don't agree that the fact that we are currently too eager to cancel things and say things are beyond the pale implies the conclusion that we should never be willing to say so. It sounds like, instead, the conclusion is we need to figure out more of a shared consensus on what actually should be beyond the pale. Because we are currently using that power too generously. And that is actually, the end result is nothing is beyond the pale. It's kind of counterproductive. In a world where everything is beyond the pale, nothing becomes beyond the pale. Because of the sorting you're talking about.
You keep putting forward a false dichotomy. The two choices are not just never do this or immediately go to argument whether things are beyond the pale. The third option is to, like, all take a deep breath and recognize, even if I think this is beyond the pale, maybe I shouldn't shame it. You have to have some self doubt. And you have to say like, maybe we have to create a new category. Beyond, beyond the pale. There's the stuff that's beyond the pale, there's a lot of stuff that's beyond the pale. And there's some stuff that's like, beyond even beyond the pale, and that's the stuff we'll reserve it for.
We might just need some kind of way to slow it all down. I don't think we can afford to have all these merits fights.
I do agree that we should try to narrow these categories. Okay, I'm going to take the deep breath, that you recommended. Okay, I don't think we agree about everything. But I'm willing to say your views are not beyond the pale.
Maybe on this question.
On this question, not making that determination about any other views of yours. But I also don't think it's beyond the pale to-for Kannon to engage in this representation. I think there's a lot more to say about those kind of questions. And I think that we are kind of overdue for an episode where we talk about some of these kinds of questions about the role of lawyers, the Federalist Society, you know, what the response should be to the lawyers who engaged in election subversion.
But I want to do that as a separate episode, because I think we would have a spirited discussion about that.
I think that's right.
So weigh in if you want to hear that episode.
And if you think it would be beyond the pale, and you would boycott the show, don't tell us actually, I don't care.
Hopefully, the podcast could survive that. Our partnership could survive that episode.
It would be a good test.
So, anything else we should talk about from recent weeks during the dog days of summer?
I guess I do feel obligated to note, hopefully nothing will come of it. Speaking of beyond the pale, there is an interesting day application, or actually an injunction extra application pending at the Supreme Court, in a case called Klassen versus the Trustees of Indiana University. Which is a constitutional lawsuit to try to stop Indiana University from having a vaccine mandate on campus.
I should say, I grew up in Bloomington, Indiana, and my parents taught at Indiana University. So I'm probably too close to the case. But it was rejected by the district court in 100 page opinion, it was rejected by Frank Easterbrook in a three and a half page opinion that's a true pinnacle of Easterbrook craftsmanship. And now they're asking the Supreme Court to step in. It seems very unlikely to me, they would do anything. But there are two reasons I have to note it. So one is: the application has been pending at the Supreme Court for six days without anything happening yet.
On the cover of it says relief requested by Friday, August 13. We're recording this on Thursday, August 12.
Right. So probably it will be denied between... I mean, now and even when the show goes up, but a little weird. And the other thing to note is that the attorney of the petitioners is Jim Bopp, who is an incredibly smart and clever and aggressive Indiana lawyer who brought us such cases as Citizens United. So the fact that he thinks he's got a chance, makes me a little nervous.
Yeah. Yeah. So that's interesting. And a little scary. Jim Bopp is the kind of guy who can get the Court to do some big, scary stuff. So we'll see what happens there. And this is-this is a constitutional case. So presumably wouldn't apply to our private institutions I hope, if it comes out against vaccine mandates. But, we'll see.
It's especially weird because the constitutional claim is based on the constitutional rights to bodily integrity and autonomy and medical treatment. Which I don't remember seeing in my copy of the Constitution. But I gather, there's some kind of a 14th amendment substantive Due Process right. And the court does already have a case about the 14th and substantive due process rights to bodily integrity, autonomy and medical treatment, namely Dobbs, the big abortion case. So it seems like an especially weird time for the Court to be getting into that here. But, stranger things have happened.
Yeah, I don't know. Maybe this is the time for a more robust jurisprudence of medical law, health law.
Yeah. But maybe-
I hope not.
At least for this case is concerned. You're not expressing a view on Dobbs, are you?
No, not today.
Okay. We should do an update on that too.
All right. Well, I think that's all we have time to cover today. We will be back with you probably in a couple weeks, I know Will you're going on vacation for a little bit. But in the meantime, please rate and review on podcast store, and anywhere else, you see that you can rate and review us.
We are still trying to get more listeners, boost our audience, especially as we head into a new term and we would really appreciate that. Check out our website for transcripts of the episodes at dividedargument.com and our store, Store.dividedargument.com where we have T-shirts, pint glasses, mugs, and so forth. And then call and leave us a voicemail, which at some point we will try to get to and maybe answer on the show at 314-649-3790.
Thanks also to the Constitutional Law Institute for sponsoring our endeavors. Thanks especially to Dan for being willing to be associated with me even when one of us expresses views that are beyond the pale. And if you think that one of us has said something beyond the pale, well, sorry.
Let me know and I will decide whether to disassociate myself from Will.
Let Dan know. Don't bother to tell me.