Divided Argument

Grandma's House of Vice

Episode Summary

Will and Dan discuss Edwards v. Vannoy and other opinions released this week, as well as the Court's decision to grant cert in an abortion case.

Episode Notes

Will and Dan ponder the significance Court's grant of certiorari in an abortion case, Dobbs v. Jackson Women's Health Organization, before going on to recap some of the opinions the Court released this week. They discuss Caniglia v. Strom, a Fourth Amendment case, and what it might mean for drug-dealing senior citizens. And they explore the puzzling world of criminal-procedure retroactivity in Edwards v. Vannoy, and in particular Justice Gorsuch's bold concurrence charting a new course for federal habeas corpus law. 

Episode Transcription

Will (00:00:02):

Welcome to Divided Argument an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

Dan (00:00:25):

I'm Dan Epps. Will, I'm surprised you didn't note that we are the number one podcast in the fiercely competitive government category on the Apple podcast store.

Will (00:00:35):

Is that right? How did we get there?

Dan (00:00:37):  

I don't know. We have people that wanted to listen over the weekend. I think we will not retain that spot for very long, but I'm enjoying it while it lasts. You can tell that Apple does not have much respect for the government category, because it lists them all and it's government at the very end, but nonetheless, it's our own little corner, so I'm excited about it. How Now to roll out. We're trying to get a few episodes out quickly just to give people some content. We've already got some, a lot of folks are listening. One of whom emailed us. Adam Liptak wrote us to say something interesting.

Dan (00:01:09):

He said, "Following up on our shadow docket discussion." "One more reason Dunn v. Ray ..." which is the case involving the Muslim prisoner who wanted the spiritual advisor with him during his execution. "One more reason Dunn v. Ray didn't get the attention and care deserved. It was issued the same night as the stay ruling in June Medical, where the chief joined the liberals to block a Louisiana abortion law foreshadowing his eventual merits vote. Dunn was issued at 9:09 PM and June medical at 9:29 PM.

Dan (00:01:34):

I have to think the court was focused on the abortion case that night, which I thought was a great observation, something that I either didn't know or knew but had forgotten and that makes sense ... It's not really either even an excuse or justification for the court, but it's more of an explanation I think.

Will (00:01:50):

Right. No, it's a great point and it's just a feature of the shadow docket that because it's taking place at the off hours in the middle of the night. They could be doing all sorts of stuff while they're trying to do these cases.

Dan (00:02:01):

Yeah. You could just have the bad luck to have a bunch of things happen at the same time. Maybe you get lucky and you have your shadow docket filing come in at a time that's convenient for the Justices, and they can give a little bit more time with it, but it does suggest that going along with stuff that you've suggested, having more in the way of procedural regularity around such things could be beneficial. Yeah, so the Supreme Court has actually given us some material to work with.

Dan (00:02:26):

We're recording today, Monday, May 17th, and we got some cert grants and we got some opinions, and one cert grant in particular, that's going to get a lot of attention and discussion in the coming months.

Will (00:02:41):

Cert grant is the abortion case from Mississippi, a case called Dobbs v. Jackson Women's Health Organization that's been relisted, I don't know, 15 times or some large number of times, is that right?

Dan (00:02:53):

Yeah. People were really wondering what was going on with it, and presumably given that the court was taking some time with it, I presume there must've been some disagreements on the court about what exactly to do with that. But the disagreement seems to have been resolved in favor of granting it. Looking at the docket, it was first distributed for a conference in October and has been relisted a bunch of times, January, February, March, April and now May. Presumably somebody was writing something, something that ended up persuading others. I can't think of a better explanation. Can you?

Will (00:03:38):

No. I think usually when the case is relisted this many times, you have to imagine that they were prepared to deny, somebody was going to write a dissent from denial of cert, and then after some amount of back and forth enough people were persuaded by it as the cert grant.

Dan (00:03:51):

Yeah. But game this out with me. This is a case where the challengers to the abortion law, this is a law restricting abortion much earlier than previous laws, that have been upheld have done so, and so the law was struck down by the lower court. This is the state coming in and saying, "No, please uphold our law." Who would not want to hear that? Obviously, the liberal justices would be certainly content to let the status quo remain in place. But then I guess, I see four votes who would want to consider that.

Will (00:04:27):

Which four?

Dan (00:04:29):

The four would be Justices Thomas Alito, Gorsuch and Barrett, but maybe I'm wrong about that. What do you think?

Will (00:04:37):

I don't know if we know that Justice Barrett wants to grant. Somebody must have, whether it was her or it was Kavanaugh, the Chief Justice. It could be that. I'm totally speculating here, but you could imagine that Justices Alito, Thomas and Gorsuch want to grant. They don't have four, so they're start starting to dissent. But the Chief and Kavanaugh have no issue in getting into this before it's time, so they don't want to grant. Maybe when Justice Barrett first runs the court, she says, "Well, do I really want to get into this?" Then eventually there's a dissent that's so powerful, so that it would be embarrassing not to be persuaded by and so maybe she's persuaded.

Dan (00:05:13):

That seems as plausible as anything else. Clearly there weren't four votes at the beginning and it took a while.

Will (00:05:18):

The other thing worth noting, which may not mean anything, but it may, is that there were three questions presented. In the end, the court granted one. They didn't grant a complicated one about what the right test is, and they didn't grant one about third party standing. In the end, the question presented is just whether all pre-viability prohibitions on elective abortions are unconstitutional. Now that could be inclusive. That could include all possible things, but it could be that there's also some wrangling about the right way to frame the case.

Will (00:05:47):

Because you could imagine getting that question, are all pre-viability, prohibitions on elective abortions unconstitutional? You can imagine the justices saying, "No, they're not all unconstitutional, remand," and that could let them deal with as much or as little of it.

Dan (00:06:01):

Not say exactly which ones, but just say, "No, this is too broad."

Will (00:06:05):

Not even say, "Are we overruling Casey? Or we're just saying that even with Casey's rule, viability is not a safe harbor."

Dan (00:06:13):

Yeah. Let's game this out a little bit. This is granted now. Earliest it could conceivably be argued is October, but it seems unlikely because they've already granted a number of cases for the next term, so probably would be a little later than that. Unless something unusual happens, you think of this as your classic end of June case, right? These cases, abortion cases are highly divisive on the court. People are very passionate about them on both sides, but there's a lot of opinions going back and forth, a lot of rancor. It's very easy to imagine this one being one of the ones that goes until the very end of June, at least in a normal year.

Will (00:06:55):

Yeah. That sounds right.

Dan (00:06:56):

Then that's an election year. It's midterm election year.

Will (00:07:01):

It's always an election year now then.

Dan (00:07:02):

Yeah, I suppose so, but this one may get even more scrutiny than it otherwise would for that reason.

Will (00:07:10):

Yeah. I think it also just depends on what they do or what they say.

Dan (00:07:12):

Yeah. This is certainly going to be, I think a bit of a test for Justice Kavanaugh because some of his backers said, "Oh, he hasn't made up his mind on the issue." Susan Collins said, "Oh, he's definitely going to uphold Roe." He just hasn't really signaled what he thinks about those issues yet. I think we have a pretty good prediction about how some of the others feel. Chief Justice Roberts is obviously still a bit of a question mark. He joined the liberal justices in June Medical. Is he going to do something like that again? That was just an unusual thing, where he thought the court was ignoring precedent. Hard to know.

Will (00:07:57):

Yeah, I agree. But again, I think it's not even clear how much ... It sounds like they have a lot of discretion to decide how broadly or narrowly to answer this question.

Dan (00:08:04):

Yeah. This certainly doesn't at least explicitly present the question, should Roe v. Wade be overruled.

Will (00:08:12):

Not in so many words.

Dan (00:08:13):

Yeah, not in those words. I would expect some of the justices to say that it should be in their opinions and that's the question is that three or five?

Will (00:08:25):

Yeah. Also, another question is how the grant here will, what it will signal to other States. If you're an enterprising state legislature or solicitor general, you're thinking about continuing to keep the pressure up on these issues. Do you now take this as a sign that Court is open for business?

Dan (00:08:44):

Yeah, quite possibly. This is certainly one that is going to get a lot of attention and discussion. Do you have any instinct? Is the big one, or is this going to be less consequential than we think? If I had to just put you on the spot.

Will (00:09:02):

This is going to be just as big as all the others. Look, every time the court has one of these abortion cases, where they narrow Casey, there two ways to look at it. It's like this is really doing a huge amount of damage or nobody escaped the big one. That's what I think this will be, this will not explicitly overrule Roe.

Dan (00:09:20):

It's hard to imagine that it won't narrow in some way. Regardless of what the exact disposition is, but it's hard to imagine they won't ...

Will (00:09:30):

If I had to guess right now, I guess the state will win. It will in some way narrow preexisting doctrine, and we will debate how much it narrowed it.

Dan (00:09:36):

Yeah. That would be consistent with past practice. Okay. Well, we'll obviously be keeping our eye on that one, as well as everyone else that's paying attention to the court. But [crosstalk 00:09:50] we got some opinions and we should talk about those. Some I think are maybe perhaps more interesting than others. We had one, which I actually haven't read. I think you read this one Will, BP PLC v. Mayor and City Council of Baltimore. Justice Gorsuch opinion, it is about federal officer removal.

Will (00:10:12):

Yes, it's about, so removal means that if your case is filed in state court and you think it belongs in federal court, you have the ability to punt it over under the removal statute. It's an obscure area of federal courts, I'm sorry to say with lots of complicated rules about when and how you can appeal those decisions. The Supreme Court wades into some complicated rules about appealability, which basically have to do with how multiple parts of the statute interact. While I have some interesting things to say about it, I will do our listeners the favor of not saying them.

Dan (00:10:44):

Let's let that go. Okay. Another one, slightly more interesting to me, something that I had, a case that I had flagged for my criminal procedure investigation students this spring, Caniglia v. Strom. Maybe it's Cornelia if you're in Italy. I'm not totally sure. This is a Fourth Amendment case about the so-called community care-taking doctrine, which is something that came from a case just about 50 years ago, 1973 case called Cady v. Dombroski, which is a case about whether police could go retrieve a gun from another policeman's car. There the court said something offhand about how, "Oh, sometimes law enforcement does things that are not investigating crime.  

Dan (00:11:30):

They're engaged in community care-taking in that case, they'd go and get the gun so it didn't fall into unsafe hands and then they uncover evidence of crime." Then lower courts had taken that language and run with it. There've been a lot of cases where the police have been doing something like trying to help people out, arguably the equivalent of getting people's cats down from trees, things like that, things where they have some reason to think someone needs some help and they go inside their house. They're not investigating crime.

Dan (00:11:58):

The lower courts had said in many cases that was acceptable under the community care-taking doctrine. Meanwhile, at the Court, the Court had recognized something that conceptually overlapped, which is the emergency aid doctrines are kind of part of exigent circumstances that says, you can enter a house or another place that has fourth member protection without a warrant, if you're providing emergency aid to someone who's hurt inside, something like that. The question here is, can police go inside a house when it's not within the contours of the emergency aid doctrine, but they're just trying to engage in community care-taking, in this case they had some reason to believe the occupant of a home was experiencing a mental distress and they went inside his home.

Dan (00:12:52):

There was concern that he was going to commit suicide, but they entered and then they seized his weapons. The question is, is this okay under community care-taking? What's the answer?

Will (00:13:02):

The answer is no, there's no community care-taking exception to the warrant requirement. That's a rule for cars, not for houses. If you want to go inside, you got to have exigent circumstances or consent or something like that.

Dan (00:13:14):

Yeah. Possibly some other things that look like this might fit into that category which we'll talk about in a second. One thing that was particular interesting about this opinion, penned by Justice Thomas: it is one of the shortest signed majority opinions I've seen in quite some time. I couldn't remember the last signed majority opinion I'd seen that was this short. It's only four pages, about three of which is just setting up the question and the facts. Then there's about two and a half paragraphs of reason.

Will (00:13:41):

Well, that's especially true given that there are three concurring opinions by the Chief joined by Justice Breyer, Justice Alito, Justice Kavanaugh.

Dan (00:13:53):

Everyone is like, "Okay, here's some other stuff I was hoping the majority might say."

Will (00:13:57):

Or hoping ... This is what probably I loved about argument. I don't know if you listened to this argument and the opinion is like, a lot of it is about a fact pattern that is purely hypothetical, but much of the case is about the fact pattern of suppose there's an elderly woman who keeps to some regular schedule, she's never late for dinner and she doesn't show, and then she doesn't answer the phone, and like nobody's heard from her. Can't the police go in and check on her? That was I think the Chief Justice’s hypo at the start of argument, and it's, that occupies the center of the case, in a way the case is really about the elderly woman.

Dan (00:14:32):

Yeah. Justice Thomas doesn't want to get into that. He just is like, "Community care-taking, it's not relevant here. You lose." [crosstalk 00:14:40].

Will (00:14:41):

I think one reason for this is so they can all agree they're not going to create a new exception, but they have different views about how broad and narrow the existing exceptions and rules are. Justice Thomas dissented back in a case called Georgia v. Randolph that said that one occupant of the house can't invite you over the objection of another. He could have resolved this case under Randolph grounds because the man's wife is like, "Let's go into the house." The man's there saying, "Don't come in."

Dan (00:15:07):

That's a consent search case. It's a different conceptual headache. Yeah.

Will (00:15:12):

And the Chief Justice has a very broad view of the exigent circumstances doctrine, which he reminded people of in his concurrence that ...

Dan (00:15:18):

He wrote Brigham City v. Stewart, which is one of the cases that he relies on.

Will (00:15:24):

Right. You can go in, basically, if you hear some sort of scuffle or altercation going on in a house, you can go in and check it out even if you're not really sure that it's that dangerous or that violent or yeah, some line, the police are not required to just wait around and give first aid to the victims.

Dan (00:15:43):

I'm fascinated by this hypo where you go into grandma's house, because nobody's seen her. Then maybe it's a problem because it turns out she's a meth dealer or something. She's got a whole operation.

Will (00:15:55):

I have two things stay. I'm troubled by this hypo that everybody seems to think that, older people who suddenly vary up their routines lose their Fourth Amendment rights. Maybe she's suddenly taken up some vice, who knows. Maybe it's a legal vice, maybe it's an illegal device, but it's not like that automatically forfeits her Fourth Amendment rights. Maybe she's got some reason.

Dan (00:16:20):

Yeah. Where AARP in this case defending the rights of the elderly?

Will (00:16:25):

I actually don't know. Do they file?

Dan (00:16:27):

I highly doubt it. I think given that this just came up as a hypo.

Will (00:16:31):

Yeah. You could imagine obviously having a consent registry. You can imagine having a rule that says, "If you're an older person who lives alone and you'd like, to just sign up with the state that they can do wellness checks if you want to or something."

Dan (00:16:42):

Pre-consent or something.

Will (00:16:44):

Pre-consent. Yeah. The other thing is, I wonder if the plain view doctrine is the problem here. There are a bunch of these things that seem, it seems reasonable to mention the police could go in. Don't hear from anybody, they're worried about you, they go in. But in a criminal case, this will only come up if they then find evidence of crime or if they're allowed to [inaudible 00:17:04] the plain view doctrine.

Dan (00:17:04):

Yeah. This is something I've always thought about it and thought was difficult, which is that there's lots of things, where it seems okay to let the police do something, but then why does that necessarily have to mean they get to take whatever evidence they happen to find. There seems to be some really strong impulse in the doctrine, that if the police are somewhere they're allowed to be lawfully, then it's just fair game if they see stolen merchandise, they see drugs, they have to be able to get it, and they have to be able to use it as evidence against you.

Will (00:17:39):

I just started to wonder, really like starting today, if maybe the plan view doctrine should be more limited to, if the police are someplace that anybody could be lawfully. It makes the most sense when the police are just walking down the street or someplace where anybody could be, and he sees something that's really in plain view and seizes it. When the police officer is at someplace only pursuant to a warrant or to some government intrusion that has a particular justification, the plain view doctrine then lets them convert, you could be there on a warrant, search for one specific thing and one specific place, because the warrant has to be specific.

Will (00:18:15):

Then while you're there, you can use the plain view doctrine to expand the scope of the investigation. Two things going on here. I wonder if that's something we need to rethink.

Dan (00:18:24):

Yeah. I think that's really interesting. I actually have a different solution, which is not a legal solution exactly. Which is that, this kind of community care-taking stuff, I don't think police officers should be doing this. There's no reason why it has to be the case that the people who come respond to a call that my husband is suicidal, or we haven't seen grandma in a week, they don't have to be the same people that also investigate drug crimes. There's a big movement, I think to get police to reduce the things that police do. We wouldn't have most of these problems I think, because this tends to come up in criminal cases where people are seeking to exclude evidence.

Dan (00:19:04):

Although, someone could bring a damages action, but we wouldn't have those problems at least in the criminal cases, if it was social workers who did this. Social workers, they're not going to turn everybody in where they see marijuana or whatever.

Will (00:19:19):

Yeah. I think somebody, I think it was Justice Barrett proposed that argument, kept trying to get the petitioner to agree that there'll be a different standard if it was not a police officer, which he refused to do. Do you think they're trying to, it's a little tricky, like, what happens if the social worker sees drugs and tells the police.

Dan (00:19:37):

Well, I'm not saying that we have to change the doctrine. I just think that this might not come up. Obviously in this case, this was not exclusionary world case. This case would, I guess would still have the same problem. Although, maybe the social worker would have not seized the guns as aggressively, or maybe would've treated the situation more appropriately. Maybe a trained social worker would have recognized that the homeowner was maybe not as mentally troubled as they thought he was.

Dan (00:20:04):

I don't know, but at least some chunk of those cases would disappear if we had people who weren't police, who were doing this and who also were not, for whom it was not their job to just grab everything that seems criminal looking to them.

Will (00:20:18):

Are you saying we should defund the police, Dan?

Dan (00:20:20):

I think we should reduce police interactions. I think that there are things ... Right now, there's a lot of things we have the police do that don't necessarily need to be done by people with guns, who are mainly going to be evaluated by how many arrests they get and how much drug interdiction they do and so forth. With mental illness, a lot of people have said, "Let's not have police be their first responders for calls of mentally people," because there's a lot of cases where that happens and then they shoot someone. This is actually a better scenario than a lot of situations, where the police are called in to deal with someone who's experiencing some mental, emotional problems.

Will (00:21:00):

Yeah. Okay. Good point. I hope that happens.

Dan (00:21:03):

Then I don't have a ton of else to say about the various separate opinions in the case. One other thing that Justice Alito flags is, he's uncomfortable with some of these, what are called red flag laws, which enable the police to seize guns pursuant to a court order to prevent their use for suicide or the infliction of harm on innocent persons. He thinks those should be challengeable. A little bit of kind of a gun rights, Second Amendment angle, not quite Second Amendment, but in that same universe here. But that's about it.

Will (00:21:35):


Dan (00:21:36):

Probably can still go help out grandma if we don't see her for a while, but we'll have to wait for a future case to resolve that question conclusively with five justices signing onto an opinion supporting it.

Will (00:21:49):

Then we got a tax case.

Dan (00:21:52):

Yeah. This is a tax case, CIC services LLC v. IRS. It's about tax law. It's also about the anti-injunction act, which restricts court's ability to grant injunctions against collection of tax. The court ultimately concludes that in the specific case, that act doesn't apply and the plaintiff was able to go file a suit. A little bit more complicated than I can really explain. I don't totally understand all the moving pieces. I'm not a tax person, I'm limited understanding of the anti-rejection act. One thing to flag though, is some tax folks on Twitter like Andy Grewal, Brian Gall, Daniel Hemel, all expressed some real concern about a footnote in the opinion where a court arguably may have really expanded the scope of criminal tax liability.

Will (00:22:37):

Go read about it on Twitter. The one case we haven't talked about yet, Edwards v. Vannoy.

Dan (00:22:42):

What's the case about?

Will (00:22:44):

A year ago, the Supreme Court had a case called Ramos v. Louisiana, where they held that you have a right to have your jury verdict be unanimous in the States. Louisiana and Oregon, which had previously punished people on the basis of a 10 to two criminal verdict now can't do that anymore. The question of Edwards v. Vannoy, is that decision retroactive, in particular is retroactive on habeas?

Will (00:23:07):

If you're somebody who was convicted by an illegal jury, a 10 person or 11 person majority and you're now in prison without a proper jury verdict, can you get out? Can you get a new trial?

Dan (00:23:20):

Specifically, you were convicted and then your appeals were exhausted before that case [Ramos] came out. You no longer are on appeal. The conviction is final.

Will (00:23:32):

Yes. Everybody agrees. If you're still on appeal, if you're your conviction is not final, then you can get the benefit of the new ruling even if your trial has already happened. The question is, if that's happened, if you've gone through the normal appellate process, but you're still in prison, can you get habeas?

Dan (00:23:48):

Yeah. There's a lot of moving pieces doctrinally, and you're the one who teaches federal courts. There's this rule about retroactivity that comes from this case Teague v. Lane. Before we can even understand what's going on here, you set up the issue in terms of the substantive constitutional provision or the right at issue. But now we need to figure out this messy retroactivity, so tell us about Teague.

Will (00:24:16):

Okay. Teague is a Supreme Court from the 1980s, where the Supreme Court says that this retroactivity question, when you want to know whether a right is going to retroactively recognized on habeas, you have to first ask whether it's a new rule or not. If it is a new rule, then it's not retroactive usually. If the Supreme Court decides and makes a new rule, it's not retroactive, there's two exceptions. One, if it's a rule of substance rather than procedure, you can't have people sitting in prison for things that are now constantly protected.

Dan (00:24:51):

Or like a statute is vague, right?

Will (00:24:54):

Yes, the statute is vague.

Dan (00:24:55):

It's impermissibly vague.

Will (00:24:58):

The Supreme Court decided that Miller v. Alabama and the juvenile sentencing provisions fell in this substantive rather than procedural category recently. That one category is substance. The court rephrases the rule, they just say, "If you're asking if a rule of criminal procedure is retroactive, then there's only one exception left, which is whether that rule was a watershed rule of criminal procedure," which at the time the court decided Teague, what they had in mind was Gideon v. Wainwright. It's a new rule. It's not about the constitutionality of the statute.

Will (00:25:28):

It's not about your primary conduct. It's just a procedural rule, but it's such a big deal that they, and so central to fairness that once Gideon is decided, it doesn't seem fair to let people still sit in jail who didn't have lawyers.

Dan (00:25:43):

At that point, Gideon had already been on the books for a long time. Did the court even really need to ... In Teague in the '80s, did they even need to make an exception for Gideon?

Will (00:25:53):

No. They're retconning it trying to get it. They're explaining the kind of rule [crosstalk 00:25:59] ...

Dan (00:26:00):

That's actually a great concept to talk about cases, retconning. They're like, "Oh, this thing we did, here's why it made sense."

Will (00:26:08):

In very oversimplified terms for several decades, the court messes around with retroactivity and also in very confusing ways, because it's a very confusing area to figure out what you should do. Sometimes they didn't want to make things retroactive, even to people who were on direct review. Other times they wanted to make things more retroactive on collateral review. In Teague, they tightened it up. They make retroactivity somewhat hard to get, and they try to enact a test they think will last. Then they're doing that, they want to say, "Look, a lot of times we've made things retroactive. Maybe we won't do that anymore. But watershed rules like Gideon, those will still be retroactive.

Dan (00:26:43):

Let's say you're a criminal defendant, there's a new rule, comes down the day before the state Supreme Court rules on your petition.

Will (00:26:53):

You're in luck.

Dan (00:26:54):

You're in luck. Comes down a week later after your cert petition is denied if you go file a petition with the state Supreme Court, comes down a week later.

Will (00:27:02):

Yeah, then you're in luck.

Dan (00:27:04):

Then we have this exception possibly, and then now having set the stage, the question is whether the rule of Ramos is within that exception.

Will (00:27:17):

Exactly. The court ...Well, so the court says, "No," but the reasons are interesting. The Supreme Court says six to three in an opinion by Justice Kavanaugh, that Ramos is not retroactive under the watershed rule exception. I guess they have two reasons for that. One is, look at a bunch of other really important, maybe even more important criminal procedure decisions that were not watershed rules. The three examples are Duncan v. Louisiana, which says that the right to trial by jury is incorporated. In a way it's the greater version of the Ramos, right?

Will (00:27:53):

Crawford v. Washington, amazing confrontation clause case by Justice Scalia that created an originalist revolution and competition plus jurisprudence and Batson v. Kentucky, the basis for challenging race-based [inaudible 00:28:07] challenges in front of a jury. All three of these are core staples of criminal procedure. All of them held to be not retroactive, non-watershed rules. If they aren't, this one isn't either. But then the courts have something more interesting, which is they say, "Also the time has come to reveal that there is no watershed exception anymore.

Will (00:28:28):

There will in fact never be a watershed rule of criminal procedure." The exception has now ... There are a bunch of different phrases they use. It's now run its course. It's now no longer have any vitality. I think they're not quite taking a position on whether Gideon would have been retroactive if we decided now, "But we're never doing it again," they say.

Dan (00:28:47):

Yeah I was trying to wrap my head around it. Are they overruling part of Teague or are they just saying, "Yeah, Teague recognized an exception," and it just turns out that there's nothing, it's an empty category. Because Teague itself had suggested that maybe nothing fits into this category. How would you describe what they're doing?

Will (00:29:03):

I think that's a loaded question. I would say they are overruling or modifying part of Teague, but I don't think they would say that. I think some members of the majority would insist they're not overruling Teague. They're just elaborating. Teague said, "There's this exception and it's a very rare case, and we're now with the wisdom experience telling you that."

Dan (00:29:23):

But Teague didn't explicitly say, "Clearly there's stuff in the future that will fit into this category."

Will (00:29:30):

Right. But it did create this ... If you have one rule that says, "The rule acts except perhaps in exceptional circumstances," and then later the court says, "By the way, there are never exceptional circumstances." I don't know. It doesn't really matter whether we call it overruling or not. Although I think in light of what we talked about in our first two episodes, two things to note, I think you raised the question, when the court overrules or modifies its previous precedent, doesn't it usually call for [inaudible 00:30:00] on a briefing or tell us that's something it's thinking about doing. Here, they did not [inaudible 00:30:04] points out.

Will (00:30:06):

Nobody knew the formulation of Teague was on the table and going to be dramatically reformulated. I said, "The Supreme Court is almost never interested in doing things that constrain their own discretion," but here they did. They had a rule that was previously, these rules are not retroactive except we always retain the, we reserve the right to recognize one in an extreme case. Now they're saying, even though nobody is asking them actually were forswearing our right to recognize what an extreme case. They are in a way limiting their own discretion.

Dan (00:30:36):

Although, I guess in so doing also limiting the discretion of lower courts to recognize exceptions.

Will (00:30:43):

Sure. Although I think if you were a lower court, going to recognize a watershed rule for the first time ever. You have to know that's going to go to the Supreme Court.

Dan (00:30:52):

Yeah, it would be likely to be reviewed. Yeah. That is interesting. Is this a situation where you do think additional briefing would have been helpful? Or do you think this is reasonable that the court just resolved it?

Will (00:31:04):

I think this is commendable.

Dan (00:31:06):

Commendable? Okay. You don't like extra briefing?

Will (00:31:11):

I do think in general, the court ought to have, be less nervous of extra briefing. They ought to get a lot more extra briefing than they do, but that's not the way it works. I think this is a sensible result. Again, it's cutting against the court's normal instincts to keep things muddy and reserve its own discretion, so good on them.

Dan (00:31:30):

Okay. You say it's a sensible result and it's going to ... There's actually a lot to talk about here, but let me push on that a little bit. I'm just trying to figure out why. Here's my first question. I know you've got an answer to this, but I just want to set this up in a pointed way. Here's the question, Will is Teague v. Lane unlawful?

Will (00:31:54):


Dan (00:31:54):

Okay. It is?

Will (00:31:56):


Dan (00:31:57):

You think Teague is bad?

Will (00:31:58):


Dan (00:31:59):

Tell me why?

Will (00:32:00):

Is that the wrong answer?

Dan (00:32:00):

No. Which part of it?

Will (00:32:07):

Can we take a second to talk about the concurrences, because [crosstalk 00:32:09]?

Dan (00:32:08):

Okay. You're going to process that a little bit. Okay. Although there's a lot to talk about it in the majority too.

Will (00:32:15):

The concurrences are the source of my answer.

Dan (00:32:17):

Okay. Okay. I had some thought that that might be the case. Let's talk about the concurrences and then maybe a little on the dissent, and then we can swing back because there's stuff that the majority says in response to the dissent which is interesting.

Will (00:32:29):

Okay. I'll just give you the short versions first. Justice Gorsuch says, "Much of federal habeas corpus is unlawful, and has been on a mistaken path since the mid to early 20th century." He's relying heavily on the scholarship of Paul Bator, one of my personal scholarly heroes, who made the point that traditionally habeas corpus was about people being detained without lawful authority. If somebody was detained pursuant to a state conviction, the criminal conviction entered by a court of competent jurisdiction that was lawful authority. It wasn't supposed to be a chance to retry the case.

Will (00:33:05):

Starting with Brown v. Allen, the court started allowing habeas to serve as effectively a fifth appeal, and that was unlawful and a mistake. Teague, while Teague contracts that somewhat, Teague doesn't attract that nearly as much as it's supposed to. Then Justice Thomas comes along with the other half of the foremost answer, which is to say, "Whatever you think of Teague, AEDPA is an act after Teague." We talked about it before. It says, "You're not supposed to grant habeas relief to anybody whose claim was adjudicated on the merits, and was at the time a reasonable application of clearly established law." If at the time it was reasonable to think that 12 person juries were not required, AEDPA says, "Don't grant relief."

Dan (00:33:50):

Okay. There's a lot to unpack there. Can I just linger on this slightly less important AEDPA point before we tackle Justice Gorsuch, because that's what he says is pretty big? On AEDPA, that seemed right to me. Then I was trying to puzzle it through. Would there be any situation where someone would get the benefit if this is retroactive? What are the situations where someone gets the benefit of it despite AEDPA? First of all, which I wasn't, and I actually don't know, if this is retroactive, would state courts in state habeas be obliged to give you the benefit of the right?

Will (00:34:24):

Oh, that's interesting. I think they would under Montgomery v. Louisiana if it's a retroactive. If a state court has a state habeas proceeding, they have to apply the right in state court. I'm not sure they have to have a state habeas procedure.

Dan (00:34:39):

Yeah. I think that makes sense to me. Okay. There is some daylight there and then maybe there's some other ...

Will (00:34:47):

If you had a claim that was exhausted or excusable non-exhausted, but was never actually decided by the state court, [crosstalk 00:34:55] happens then AEDPA deference isn't triggered.

Dan (00:35:00):

With AEDPA there's just, you have to really chart your course through a bunch of difficult, I don't know use your nautical metaphor here, to be able to make a claim. But yeah, maybe there ... I don't exactly have a sense of, I'd have to sit down and game it out with the statute and so forth, but how many people that would benefit, but it does seem clearly here AEDPA just clearly bars the claim. It's like, why are we even asking this bigger question?

Will (00:35:24):

Yeah. Well, I think many people have thought that Teague survives AEDPA, that you have something that's a retroactive under Teague then it doesn't then [inaudible 00:35:34] shouldn't apply.

Dan (00:35:35):

Even if it was adjudicated on the merits?

Will (00:35:37):

Yeah. Because part of what it is to say something as a watershed retroactive rule is that, we're blowing through all the normal principles of  retroactivity.[inaudible 00:35:47].

Dan (00:35:46):

But how do you get through the statutory language there if it was adjudicated on the merits?

Will (00:35:53):

I don't know. There are some funny things in AEDPA about retroactivity and I don't know, you should get somebody on the podcast who knows something about habeas.

Dan (00:36:01):

Yeah. Maybe I teach a day of it in criminal procedure, but there's so much going on here, so many moving pieces. Okay. That's the smaller point that actually made sense to me as an easy way to resolve the case. I didn't see a clear answer to that. Now Justice Gorsuch would go much broader and this is, he's going really big, right? I haven't missed anything. He's basically saying, "I don't think federal habeas for state court convicts is a thing."

Will (00:36:34):

Almost. Yeah.

Dan (00:36:39):

The court doesn't have jurisdiction? That would be, if the state criminal court didn't have jurisdiction, that would be okay, but is there anything else that he would ...

Will (00:36:47):

Would definitely be okay. He thinks federal habeas relief should be limited to cases where the state courts didn't have jurisdiction. There is an important question about this that he reserves. In the 1880s, the Supreme Court said, "If you're convicted under a statute that's unconstitutional, that counts as without jurisdiction." It's not jurisdictional in the modern sense. But an expert [inaudible 00:37:10] the court said, "For habeas purposes, that's good enough." Because then it's like, there really shouldn't be a proceeding at all. He reserves the question of whether the substantive rights part of Teague is jurisdictional in that sense. Maybe you can do something like say, "The state prosecuted me for sedition and that shouldn't even be a thing."

Dan (00:37:29):

But otherwise, so like say the state convicts you in a state criminal proceeding where they coerce a confession out of you. I don't mean a Miranda violation, but I mean a true coerced confession, something that Justice Gorsuch would presumably believe violates the Fifth Amendment. Then you raise that in the state courts or you don't either way and you get convicted and your conviction is final. He just is like; he would think you're completely out of luck. Valid conviction from state criminal court, that's the reason that you're detained. Habeas is just about going to court and saying, "They don't have the power to detain me." He would just say, "You're done there."

Will (00:38:04):

You could probably file a cert petition to the Supreme Court.

Dan (00:38:06):

Oh, yeah, but if we get past that.

Will (00:38:09):

Yeah. If for some reason the Supreme Court was uninterested in the fact that this happened or didn't believe you or was too busy, yeah. He'd say, "Case closed."

Dan (00:38:17):

I think this is big. It doesn't surprise me that he thinks this, but he says something interesting at the end of his opinion. He says, "These observations, I'm pleased to join the court's opinion," after he's laid out his whole view, foremost view on habeas or lack thereof. He says, "My vote in similar cases to come, will I hope be guided as nearly as possible by the principles set forth here at." He's citing Justice Jackson from Brown the [inaudible 00:38:46] opinion that you were talking about a second ago. He's basically saying, I think that he's not going to go along with any federal habeas cases other than maybe the ones within that very narrow category. Even as a matter of stare decisis, he's not going to go along, right?

Will (00:39:04):

Correct. He's saying, exactly. I'm a vote for the government in habeas cases.

Dan (00:39:11):

Based on what you've said so far, I take it that you agree with this position?

Will (00:39:17):

Yeah. I think this is ... As a matter of the historical trajectory of the writ, I think he's uncontroversially right. There are few people who could overrule it, but I think he's uncontroversially correct. Then as a matter of the law and stare decisis, I think he has some really good points.

Dan (00:39:34):

I agree with you, as far as I understand on the history, that is true, that this was a 20th century innovation, the idea that we were going to go back and revisit state criminal convictions on the basis of a claim that someone had some constitutional right at the trial that was violated. In part, that's a 20th century innovation because for a very long time, most criminal procedure rights were not incorporated. There wasn't that much opportunity to raise these claims, but yeah, this is an innovation. That said, there is ... We've been talking about watershed rules.

Dan (00:40:09):

I don't know if this is consistent with a metaphor, but there is a lot of water under the bridge at this point. We're talking about going back nearly 70 years. You have AEDPA, which is a statute that I guess itself seems to contemplate or assume as a background fact, that federal courts are going to be doing some of this stuff. We can debate about whether it is something that was limiting what courts were doing obviously, but it did seem to take for granted that we have this existing framework that courts have been following. AEDPA was passed in 1996.

Dan (00:40:38):

At that point, courts have been doing it for not quite half a century, but a number of decades. Congress could have said, "Let's just withdraw the writ. You've been doing it wrong. Let's just make clear that that's not okay if there's a valid, otherwise valid state criminal." But it didn't do that. It said, "Okay, let's take habeas as we have it. Let's propose these additional restrictions on it." Would you put any weight on that?

Will (00:40:59):

I agree with that. I think the strongest argument against Justice Gorsuch's position is that, 25 years ago when Congress enacted AEDPA, even though they thought they were dramatically restricting habeas, maybe they were accidentally broadening habeas by ratifying the then relatively recent habeas revolution. I don't think AEDPA explicitly says that.

Dan (00:41:21):


Will (00:41:21):

AEDPA is a bunch of may nots and it assumes the may, but it doesn't force that. I do think that's a very strange way to read that. But in contexts, in context, the court broadened habeas, then the court started narrowing habeas again, and then Congress came in and completed the narrowing.

Dan (00:41:39):

Yeah. But this would be a big deal. I guess ...

Will (00:41:42):

This would be a revolution.

Dan (00:41:43):

Yeah. It would be, although how much of one? Because, and Joseph Hoffman and Nancy King's book, they go look at federal habeas and they conclude that, I don't remember the exact numbers, but something basically 99% of federal habeas petitions ultimately fail. There are so many procedural and substantive barriers to getting federal habeas relief, that the number of state prisoners who actually get federal habeas relief in any given year is really small. It's a few dozen people or something like that. I don't remember the exact number. If Justice Gorsuch is correct, I think what would happen is that, that small number of people would not get relief.

Dan (00:42:18):

I don't know exactly how many. We need to look at them and figure out whether any of them fit into this other category that maybe he thinks survives. But then it would also foreclose 99% of this now unnecessary federal habeas litigation.

Will (00:42:33):

Just think of all the time and paper we'd get back.

Dan (00:42:37):

Yeah, but I guess my question is, how many ... If we take the existing framework for granted, if we take, we're not going to go back to pre AEDPA, I don't see appetite in Congress for doing that. I could see them maybe providing some narrow exceptions or something like that, but I don't think that they're going to just repeal the whole thing. If we take most of that framework for granted. I would like to know how many prisoners going down the Gorsuch's route would actually be affected at the very end of the day. I don't have an instinct on that, but I think it's maybe smaller than we might think.

Will (00:43:12):

I agree it's small. I agree. That's part of the reason I think part of the appeal of Justice Gorsuch's approach is, right now we have a very expensive, complicated time consuming, habeas process that is about looking for needles in haystacks. Even among the needles, we don't find very many. It would be one thing if we were doing that, because the law requires us to engage in this expensive and cumbersome procedure. But if it doesn't, then maybe it's a huge waste of time and we could pour those resources into giving people better trials the first time around.

Dan (00:43:44):

Yeah. But if it were the case that the court adopted this position say in 1995, that would have been ... it would have changed a lot more outcomes, because that's pre AEDPA, and the court had already imposed some restrictions on habeas using its equitable powers, some things that end up getting codified and extended in AEDPA, but it certainly was easier to get federal habeas relief.

Will (00:44:08):

Yeah. I don't know the exact time chart. Yeah. Before AEDPA, the court adopts, makes up its own time limits and other principals, pre-litigation bars, pre AEDPA. Post AEDPA, it takes us a while to decide exactly how strict and unforgiving AEDPA is going to be. There was a different path in which AEDPA could have been interpreted more loosely than it was at first. I don't know about exactly when, but it's the case that right now, very, very, very few people get federal habeas, and Justice Gorsuch would deny even them.

Dan (00:44:41):

My view, I would be okay with Justice Gorsuch's trade if we could also then provide significantly enhanced procedures through whichever route, through legislation or maybe the court could recognize some of these, although Justice Gorsuch probably would not, to allow people to make true actual innocence claims. This is one of the weird things about federal habeas law is, it's really about procedure, right? Even if you're actually innocent, you need to figure out some procedural violation to hang your hat on, to get relief.

Dan (00:45:19):

The court has never said conclusively, that if your claim is just like, I'm totally innocent, there's a bunch of evidence that shows that I'm totally innocent and that's my claim. They've never said, "Okay. Now you can use that as the basis to get out of prison." You have to say, "Well, I'm innocent. That helps me get over some procedural bars, so I can make this argument that the state court improperly applied this procedural right," or something like that.

Will (00:45:45):

Yeah, right. Being innocent is probably not sufficient and definitely not necessary for getting habeas relief.

Dan (00:45:54):

It seems like as far as I am concerned and some people will disagree about this, but those are the cases that are in state court, that have gone through the full level of the appellate process that I'm most worried about. Given our conversation about the shadow docket and summary reversals and error correction, I do think the court should do, especially in a world where if we have a world where they're not going to ... Let's say five justices were to go along with Justice Gorsuch's, which I don't expect that they will ultimately. But I would want to see the court being more willing to do a little bit more aggressive error correction on the cert side.

Dan (00:46:32):

Because there's a lot of courts out there and some of them are better and more faithful at protecting federal constitutional rights, which do apply in state court. Some of them are better at upholding those than others. If we have a world where the court almost never does error correction on the cert side, and then we also take away the possibility of any further federal court review in habeas, some of those federal, constitutional, criminal procedure rights end up not being worth a whole lot.

Will (00:47:00):

Yeah. I completely agree. I completely agree. I would love to see the court either through procedure or substance, pay more attention to the criminal cases the first time around, when they got them on direct review. Certainly don't want to be misunderstood as suggesting that I think the state criminal justice systems are great or even particularly fair on average, but the federal habeas proceeding where we spin up this whole set of collateral review and then largely throw the results away, no matter what we find, it doesn't seem to me a good or lawful use of resources.

Dan (00:47:31):

Yeah. Okay. The thing going back to my earlier question, so you don't like the whole premise of federal habeas review of state court criminal convictions. Taking that for granted say is a matter of stare decisis, do you think Teague is lawful?

Will (00:47:46):

Okay. So it's not... [crosstalk 00:47:47]

Dan (00:47:47):

Because it's kind of a qualified immunity for criminal procedure retroactivity, right?

Will (00:47:51):

Kind of. I do think there's still a problem. Okay. Let's assume that Justice Gorsuch was wrong. Let's assume we're going to take habeas review for granted. Then the question is, where does the court get the power to refuse to grant habeas relief on basis of things it thinks are a good idea? Justice Gorsuch that talks about this too. In his opinion, he says two things; he says "Habeas has governed by equitable principles. That's because the statute says that courts may grant habeas relief. Not that they need to." I think this is the one part Justice Gorsuch's concurrence I disagree with.

Will (00:48:27):

Habeas was a writ at law. It was not part of equity. It's not true that equitable principles governed habeas, unless you're using equitable in the non-technical sense. It's true the statute says may, but that just seems awfully thin to me. His analogy is to the declaratory judgments act, which also says, may, the courts may grant the declaratory judgment, and the courts have concluded from that it's up to them, whether to actually gives you declaratory judgment or not. I think that was probably a mistake as to the declaratory judgment's act. That's certainly what Sam Bray, is one of the leading experts in the declaratory judgment act says, "That's probably a mistake as to habeas too."

Will (00:49:05):

I'm not really convinced ... I would grant Justice Gorsuch's premise and say the whole habeas regime is probably a mistake. But if it's not a mistake, I'm not totally sure that things like Teague are ...

Dan (00:49:16):

If it's not a mistake would then everything have to be retroactive probably, because otherwise what's the basis for not making it retroactive?

Will (00:49:23):

Right. Then there's the AEDPA question. Then again, AEDPA would say it's not retroactive. I guess here's the reason it's not totally qualified. If we put aside the problem that habeas is a judge-made remedy at this point, and we put aside the problem that AEDPA limits that remedy, then asking how the courts should invent limits on a judge invented remedy, I don't have a strong view about. This is one of the things people said about qualified immunity.

Will (00:49:52):

One of Justice Scalia's old defenses of qualified immunity was, eh all of section 83 litigation is made up so qualified immunity is a made up exception to made up statutes. He was wrong about the premise. Section 83 litigation is not made up and qualified immunity doesn't make any sense anyway. But if I spot you two premises I don't believe in, maybe it's okay [crosstalk 00:50:11].

Dan (00:50:11):

All right. That's helpful and really interesting. This is one of those areas of law where I have to reteach it to myself every time I want to grapple with it, and then I forget it because it's just too complicated. There's a number of other areas I find like that. One is like, all this stuff on ACA and the categorical approach, I always; I get to where I understand it. Then I go away from it for six months or a year and then I'm like, "Okay, totally don't remember any of that. I've got to relearn the rules."

Will (00:50:38):

I will say at a high level, again, not in the weeds, the division that the court is now setting up, which is retroactivity on direct review and not on collateral review does seem logical. It does seem to be saying, "Let's give you one good run to the judicial system. Even in the course of that run, if a case comes down after a trial is over; we'll give you the benefit of the doubt, that way you have the incentive to litigate for the right rules." But then once they've given you one good run with the judicial system, we don't just keep turning, rerunning the clock every time something new happens.

Dan (00:51:09):

There's an interesting Fourth Amendment angle to this, because there's a really fun case I like teaching from a few years ago that a friend of the show Orin Kerr argued, Davis v. United States, which is about the Fourth Amendment, good faith exception to the exclusionary rule. He made a really interesting argument, that the way the good faith exception to the exclusionary rule is currently being applied is inconsistent with the idea that new rules are supposed to be retroactive on direct review. Because even if there's a case, your case is pending on direct review, there's a case that says, "It's a violation of the Fourth Amendment to do X, and that happened in your case, you don't get relief," because the court says, "Well, there was good faith when the police officers were engaging in that conduct." He made, I thought a really interesting and smart argument that even though that's a Fourth Amendment exclusionary rule, it really should be thought of through the lens of retroactivity. The court ultimately didn't agree with him, but I always thought that was a, interesting compelling argument.

Will (00:52:08):

Yeah. Well, I think so there too and this is probably from ... I think you can't get away in these cases from the courts view about the underlying legitimacy or a lawfulness of the remedy in the first place. The questions about where habeas came from and whether it was broadened too much in the past affect the courts use. Same thing with the exclusionary rule, part of the reason Orin lost that case is because it's an exclusionary rule case and the defendants always lose exclusionary cases.

Dan (00:52:33):

But it does raise this question of what, you just alluded to, which is we want to have people to have the incentives to make the arguments, so that the law changes. That was one of the things that Orin said in that case, which is, "No one has the incentive to argue for changing the rules, if you're never going to get the benefit of the rules anyways." Then I think it was Justice Kagan who says, I can't remember if she said this at oral argument, that maybe we just need a super narrow exception for the one person who actually gets to the Supreme Court, maybe, but not everybody else.

Will (00:53:06):

Yeah. This is the thing that's amazing and maddening about teaching this is, these are all things the court played with over the course of the past 100 years of retroactivity doctrine and rejected them as unworkable. You might ask, why is it retroactive to everybody on direct review, that's giving people a windfall? Maybe we should make it only retroactive to the person who happens to get their case granted. That means that it's an incredibly arbitrary decision when you have 17 pending cert petitions, which one you choose to grant because that person will suddenly get the benefit of the rule and the other people whose petitions were exactly the same, didn't.

Dan (00:53:39):

It's arbitrary either way though, right? If you're unlucky enough to have your cert petition denied before the court gets interested in it, you lose.

Will (00:53:47):

The timing is at least not completely arbitrary. It's one thing to say, people before and after a date, at least there's a difference. If it's literally 70 people had their trials happen on the same day and file their petitions on the same day, and the court picked the petition out of a hat.

Dan (00:54:03):

Yeah, but some people might have gotten through the appellate process more quickly, and you had the good luck to have your lawyer need a few extensions on the appellate brief and that's [crosstalk 00:54:13].

Will (00:54:12):

Yes, exactly. Then some people would say, "That's why that date doesn't matter. It should be collateral for you instead..." You can criticize, it's a line darn problem. You can criticize all the lines. It's arbitrary. I think the court has probably managed to cycle through just about every possible line at some point or another.

Dan (00:54:26):

Yeah. Okay. This is a fun, interesting case. It's fed courts, Crim Pro really right in our wheel house, but there's more to talk about. We've got Justice Kagan back to Justice Kagan. Again, she's got the dissent here for the three liberal justices and she's going after them on stare decisis grounds. She's really, it seems like she's maybe starting to carve out a real role on the court as kind of a stare decisis defender. Interestingly, and this is going to come back up in a second, she was in dissent in Ramos saying, "The court should not overrule Apodaca and recognized that state criminal trials must require juror anonymity.

Will (00:55:10):


Dan (00:55:12):

Do you agree with me that she's really staking out some territory on stare decisis?

Will (00:55:16):

I think that this is a definite theme. She wrote a majority opinion in Allen v. Cooper, a sovereign immunity case, a term or two ago, an area where she was, it's pretty clear that it's not an area she approves of. She would've dissented when the court was deciding all those cases, but she went along for the ride and wrote up a very stare decisis type opinion saying, "Well, these are the precedents. I'm happy to apply them." She had a bunch of dissents in these cases. The one reason I hesitate is, I can't think of any cases where Justice Kagan has provided the fifth vote for something that she seemed to disagree out of stare decisis.

Will (00:55:53):

The ultimate mark of stare decisis would be to say, "We now have five votes to overrule X, which I think is wrong, but I'm not going to do it." But maybe that was just [inaudible 00:56:05] Roe or something, I'm not sure, maybe. Or in Casey I mean. There doesn't seem to be a case like that, where she could have in Obergefel said, "Stare decisis. I can't overrule Baker v. Nelson, even though I agree with her and what Justice Kennedy said, she's obviously not going to say that.

Dan (00:56:20):

Yeah. I'm trying to think if there's anything that would fit into that category, but I don't have an example off the top of my head. I imagine if there is one, the listeners will chime in quite quickly tell us what we forgot.

Will (00:56:34):

I don't mean that as a gotcha necessarily to be clear. It's just that's the ... It can serve different roles for people. There is always one question for stare decisis is, when the rubber really meets the road, you thoroughly considered it and you think a case is wrong and you've got, you could overrule it.

Dan (00:56:50):

Which is basically the only time it really matters, right? If you agree with the case, you don't really need stare decisis.

Will (00:56:57):

It is true that stare decisis only really matters when the case is wrong.

Dan (00:57:00):

But speaking of gotchas, there actually is an interesting gotcha exchange in this case with the majority. One thing that is interesting about Justice Kavanaugh's opinion is, he says, "Well, the dissent is saying how important this right is," but by the way, Justice Kagan dissented in Ramos and sure that was legitimate and fair, but he says, "But it is another thing altogether to dissent in Ramos and then to turn around and impugn today's majority for supposedly shortchanging criminal defendants." Basically you can't, he’s basically saying, "You can't say this is so, so important if you didn't even think this should be given to any criminal defendants at all." Then Justice Kagan has a response to that very end of her opinion.

Will (00:57:54):

She says, "The majority's final claim is that it is properly immune from this criticism, that I cannot turn around and impugn its ruling because criminal defendants as a group are better off under Ramos and today's decision taking together than they would have been if my dissenting view had prevailed on Ramos." The suggestion is surprising. It treats judging as score-keeping and more as score-keeping about how much our decisions or the aggregate of them benefit a particular party. I see the matter differently. Just to take cases one at a time and do their best in each to apply the relevant legal rules.

Will (00:58:25):

When judges err, others should point out where they went astray. No one gets to bank capital for future cases. No one's past decisions insulate them from criticism. The focus always is or should be getting the case before us right?

Dan (00:58:37):

This is maybe not scorching, but this is pretty hot. This is fairly pointed criticism, fairly pointed response.

Will (00:58:45):

I don't know whether that's pointed, but it's, I think it's great. She could have almost said judges are umpires calling balls and strikes. It's interesting because in the world of legal commentary and the political legitimacy of the court, people talk all the time as if you could bank capital for future cases. People talk about is the Chief voting to uphold the Affordable Care Act. Is he trying to bank up capital so he can do something evil later? People definitely judge the track record of the justices [inaudible 00:59:17] so I appreciate this [crosstalk 00:59:19].

Dan (00:59:18):

Descriptively it's true though. I think that that's part of the reason that the court has ended up having so much power, is it hands out victories to both sides in the culture wars. If they stopped doing that, I think the political dynamics of the court would change, and arguably the fear that is going to do that is why it's maybe started to change. We're seeing Democrats endorse stuff, court packing that they wouldn't have endorsed 10, 20 years ago.

Will (00:59:47):

No, that's why I like this. This is a form of anti-illegal realism. Even though many people would say that's descriptively how it works, here is Justice Kagan as a matter of law denying it, the fact that she was on the other side of Ramos, doesn't make her vote on retroactivity worth any less, which is right.

Dan (01:00:06):

It's true that she shouldn't ... it's not necessarily about score-keeping, although, I don't think it's a totally unfair criticism for Justice Kavanaugh to say, "Look, you're saying this is such a big deal, but it can't be such a big deal if you thought it didn't make sense to apply it." Don't you think? Is this response perfectly calibrated to the criticism?

Will (01:00:29):

I think Justice Kagan could well say, "Look, I thought it was a big deal, but I really, really care about stare decisis. But that's water in the bridge now. We had the stare decisis violation. Having had it, we may as well treat this as a really big deal." It is extra confusing though because of the swap lineups, so like Justice Sotomayor joins the dissent. She was on the majority side of Ramos. She at least needs to be pure here. It is interesting, there was a little bit of discussion of retroactivity back in Ramos. There were some hints from majority that the opinion might not be retroactive, but they didn't explicitly say so and it was a little bit of a puzzle why not.

Will (01:01:08):

Now maybe we know that Justice Sotomayor would not have been willing to sign on to a non-retroactivity majority opinion, so they have to grant a new case to go through it.

Dan (01:01:16):

Would it have been appropriate for them to just to resolve that in that case if it's not presented?

Will (01:01:22):

They're resolving the vitality of the Teague [inaudible 01:01:25] exception here.

Dan (01:01:28):

True. Although, it's at least related to ... In that case, there was a case on direct appeal, so it would have been completely dicta.

Will (01:01:38):

It was related though, because it was ... One of the arguments for stare decisis is, you're going to open up a huge can of worms by recognizing this right, because it will potentially validate, tons and tons of convictions.

Dan (01:01:48):

No, I see why the argument is related, but it would still be weird to say, "In a response to that we now hold this is not retroactive." Right?

Will (01:01:56):

That would be a case where they might've wanted to just do some little briefing and ... But it is a general point about how these substance and retroactive things fit together, is you could imagine if the court knew in advance that the right would have to be retroactive, they might not have been in [inaudible 01:02:12] and Ramos.

Dan (01:02:13):

Yeah. I think that's something that was going on in the '60s and '70s about retroactivity. One thought was like, "Let's make more things retroactive, because that'll kind of discourage the court from making a bunch of crazy new rules."

Will (01:02:27):

Yeah. Right, exactly. I think it's not a coincidence that the war in court gave us both a lot of non-retroactivity and a lot of qualified immunity. Because those are ways that make it cheaper to invent new rights. You can invent a new right, then not have to pay quite as much of a price for doing so.

Dan (01:02:44):

Okay. A lot more we could say, but that's all the time we have.

Dan (01:02:51):

Thanks for listening. Those of you who haven't yet, please rate and review on the Apple podcast store. Please recommend the show to friends, recommend it on Twitter. Anything you can do to get us more listeners as we are still building up some steam and we're going to be doing more episodes during this period, where the court is going to be releasing a lot of opinions before slowing things down for a while, so we could use your help.

Will (01:03:12):

Yeah. Please send in feedback, comments, criticisms as well. Criticism should go to Dan please.

Dan (01:03:17):

I can take it.

Will (01:03:18):

Thanks to the Constitutional Law Institute for supporting our endeavors.