Divided Argument

I Say "Timbre"

Episode Summary

We catch up on listener questions and feedback (both positive and negative), and then spend a while on the neglected case of Vega v. Tekoh, about the intersection of remedies and Miranda. We also discuss Kennedy v. Bremerton, the case of the praying football coach. Unfortunately, Will recorded all of this into the wrong microphone.

Episode Notes

We catch up on listener questions and feedback (both positive and negative), and then spend a while on the neglected case of Vega v. Tekoh, about the intersection of remedies and Miranda. We also discuss Kennedy v. Bremerton, the case of the praying football coach. Unfortunately, Will recorded all of this into the wrong microphone.

Episode Transcription

[Divided Argument theme]

Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps. 

Will: And I am Will Baude.

Dan: Well, I think it's a good thing, Will, that we introduced ourselves because we heard from one listener that our voices are too similar. This is from listener, Nick Lum, who says it is too hard to tell our voices apart given their relatively similar timbre. Do you say that timber, timbre? 

Will: I say timber, but-- [crosstalk] 

Dan: Okay, my pitch, tone, and accent. Even though you and I were raised in different parts of the country, of course, there's certain telltale statements that make it obvious who is talking, like when I diss originalists. But Nick finds the podcast more difficult to listen to, because it's hard to tell when the speaker has changed. So, I'm going to ask you today to adopt a British accent, Will, so do your best. Let's do that for the rest of the episode, and that should make things simpler.

Will: Right. It's funny. I lived in England for a semester in college, and I picked up like a little bit of a British accent for a tiny bit, just like talking to people after that, but it faded really fast.

Dan: Yeah, that is weird how I've had friends that move there, and they come back with these kind of weird fake English accents. And you always wonder, is it an affectation or is it just something not under their control?

Will: I will say the same thing's happened to me. So, I grew up in Indiana, which you alluded to, and I had a girlfriend in college who used to complain that every time I went home for the holidays, I would pick up a little bit more of an Indiana accent, like I drop--

Dan: Hoosier accent. 

Will: Yeah, I dropped the Gs is on my gerunds. There are three or four speech mannerisms that would just creep back into my speech for a couple of weeks when I'm back in Indiana for a lot, and that's not a high-status thing to do. So, maybe it should stop.

Dan: Well, maybe you could do a little bit more of that, and that might make the listening experience smoother for people that can't figure out who we are. It hasn't been quite as much happening in Supreme Court world. So, we will take a little bit of time to catch up on listener feedback like that, and then, we'll talk a little bit cases. We're going to talk about, I'd say relatively inconsequential, but conceptually interesting case, about the Miranda doctrine, Vega v. Tekoh. But we'll get there in a second. We've got some other feedback, where to start?

We've been begging you all to do reviews on the Apple Podcast Store, and other venues because they're very important to discovery of the podcast, and a bunch of you have complied. We are rated 4.9, which is very high, maybe the highest rated Supreme Court podcast on the Apple Podcast Store. But, as always, you do get a few haters. So, this is all the more important why we need you folks to come in and give us reviews to drown them out. But why not just mention a couple of these things? One, three-star review from LMA Law, who says, "Will and Dan are both smart and there's some really sharp analysis. However, "sharp" also describes Dan who is bizarrely prickly in every exchange. The chemistry between the hosts is part of what makes a good podcast and there's very little here."

Will: Dan, why do you hate me so much? 

Dan: It's a love-hate relationship. Like I said, you're winning on everything. Somebody's got to knock you down a peg. But I don't think I'm bizarrely prickly. I think we've got rapport.

Will: Yeah. It's funny to hear somebody say about you, and I thought we were friends, we have no chemistry. I will also say a member of my family, who shall remain nameless, was complaining to me the other day that you're too mean to me on the podcast between calling me an idiot and a cottage industry.

Dan: I mean, I didn't call you an idiot as such. The phrase 'useful idiot' not doesn't really mean you're an idiot.

Will: I mean, you also called me useful, if you're saying that makes up for it. 

Dan: Yeah. 

Will: I don't take it personally. My attitude towards class evaluations, not quite the same thing is that if I don't get at least one negative evaluation, I'm not doing a sufficiently good job pedagogically pushing the students. A couple of years ago, I had a student who complained in my fifth court's last, that I was aggressively pushing my doctrinalist, anti-legal realist agenda and trying to convince the students these cases actually mattered. I felt seen by that review. I also felt like anybody who got that I was doing that and was sufficiently upset about it, that's actually great. That's who probably really understood the course.

Dan: Yeah. It's like what else do you expect from a fed court's class? You can't spend an entire semester just saying the cases don't matter. You do have to read the cases.

Will: Yeah. In fact, this is what happens is usually we reach some point, whether it's in the middle of discussing qualified immunity or whatever, where I start to get like too cynical with the cases and then I sort of do a reset, "All right, let's just at least pretend doctrine matters for a while and spend some time with it, because I always see the full class."

Dan: Let's just pick some others at random. Here's another one from MLS11MLS says, "Dan Epps has really gone off the deep end. In the episode 'Settling of Scores', he tries to explain some conspiracy theory that allows him and others to ascribe bad faith to those who have ideas he does not like. It's really something to behold, and Will is so polite to not only poke a few holes in it." 

Will: Right, great review. 

Dan: I don't know if that's fair. I don't think I have explained a conspiracy theory. I think I've explained that there is a concentrated, dedicated movement designed to move the law to the right. That seems hard to dispute. I don't think it's a conspiracy. That's just a fact and people--

Will: [crosstalk] -say.

Dan: Yeah, but I mean, that is true. You can't tell me that that's not true. There has been something called the Conservative Legal Movement over the last four or five decades. 

Will: I don't think I've heard the name, The Conservative Legal Movement, but it's fine.

Dan: You don't think you've ever heard that phrase before?

Will: Only by people who are not part of it call themselves that.

Dan: Right, but you don't need to.

Will: As I've just said, you said, "There's something called Conservative Legal Movement-- [crosstalk] 

Dan: Right, but that is a useful descriptor of a set of things that have happened. Somebody is paying for the Judicial Crisis Network. There's a lot of big money floating around. 

Will: That's not [crosstalk] relation. I don't think that is-- [crosstalk] 

Dan: They run ads. One that dunks on you a little bit says this is from-- well, that might be this person's real name. No, it's Robinschnobin, I don't think that's your real name. 

Will: [laughs]

Dan: "Professor Baude is clearly very smart, but I'll eat my shorts if he isn't the biggest intellectual Zamboni for the conservative legal movement I've ever heard. Anything to give the decisions of the court a patina of nonpartisan legitimacy that they don't deserve. Makes me sick in my mouth." Presumably because this person is vomiting. Intellectual Zamboni, I like that as an insult quite a bit. So, it's like you are smoothing over the rough patches, making them smooth and pretty.

Will: Yeah, that doesn't sound so bad. The segue, throwing up in your mouth seemed [unintelligible [00:07:20].

Dan: Yeah. Or unless it's saying like, "You're super, your brain is super smooth. It doesn't have any wrinkles." I don't know. A lot of interesting ones. A lot of positive ones.

Will: I'm worried about the [unintelligible [00:07:30] you're setting up here, Dan. So, to be clear, if you leave any future negative reviews, we will never read them on the air. This will never happen again.

Dan: And we will unsubscribe you from the podcast, which is technically impossible, but we can figure a way to do it. Here's a positive one from Jeffrey DC. "The sadist review ever. Thank you both for just being normal. Just a normal logical show." Yeah, I think that's maybe what he was going for-- Although there's nothing sad about the email. It doesn't seem much bad or sadistic.

Will: The point is that sad, that being normal is great. We live in such a fallen world that two guys just talking about the Supreme Court as if it were something to analyze using logical reason is unusual.

Dan: Well, in line with your view about you should get the occasional negative review from students, I think you and I talked about how if we are making folks on both sides of the aisle mad, maybe we're doing something right. Or else, we're just doing something terrible. I'm not sure. So, reviews, please review us and do so positively. Not meanly.

Will: If you want to call us names, do that in email.

Dan: Other feedback floating around. A friend of the show, Mike Parsons, who is an election law expert, wrote in with some stuff responding to your claim that, "Who cares about the independent state legislature doctrine, because Congress could just moot it easily." That was your position?

Will: I don't. I do think Congress could moot it easily. I'm not sure I said who cares, but--

Dan: Well, maybe is less consequential than we might think because Congress can do that. But what do you think about-- let me just read something to you and you can respond to it. That says, "The first part of the elections clause gives state legislatures the power to prescribe regulations regarding the times, place, and manner of elections. The second part of the clause gives Congress the power to make or alter such regulations. There is a difference between making or altering election regulations prescribed by the state legislatures and authorizing an entity other than the state legislature to prescribe election regulations. And so, the idea being that if you take the reading that you were suggesting, that would actually be impermissible because it would permit Congress to use the second part of the elections clause to nullify the first." Do you buy that?

Will: I think the question is, could Congress create independent redistricting commissions, would that count as making such regulations? So, maybe it's a question about if you think that legislators cannot authorize independent state legislators on the first doctrine, does that mean that Congress cannot authorize the second part?

Dan: Or just could Congress draw the districts? 

Will: Yeah, Congress can definitely--[crosstalk] 

Dan: Do you know where this is from? 

Will: The elections clause?

Dan: This thing I quoted. It's from Chief Justice Roberts' dissent in the Arizona state legislatures case.

Will: Yeah, I think the two halves of the clause are different. I think it's quite plausible that Congress could-- one of the regulations-- Congress could make such regulation could be Congress saying to create a independent redistricting commission, just as in the Arizona case, the Chief doesn't say that the legislature can't authorize a commission. He just says that you can't create the commission outside the legislature. I think it's still an open question to let the chief legislator to create one and the Congress [unintelligible [00:10:57] other districts.

Dan: Well, basically, Mike wrote in to say that, "I am right to be concerned that the conservatives on the court wouldn't necessarily be differential if Congress tried to do something." I guess it depends on exactly what you're envisioning to moot the issues presented by the independent state legislature.

Will: As you'd like to say, there are degrees of freedom there. You could read the elections clause to contain sort of a mix of anti-commandeering and non-delegation principles that would say, "Congress can always step in and draw the district themselves. But maybe Congress can't force the state and delegate to a state entity." That's not the legislature. That's possible.

Dan: All right. Well, perhaps we will see what happens, but probably not because it doesn't look like Congress will get its act together to do that. What else?

Will: [crosstalk] 

Dan: How's that going to the Senate?

Will: No.

Dan: Although Joe Manchin came around on climate stuff. Looks like he's going to give President Biden a little bit of a win after initially walking away, but I don't think that really affects us. Maybe there's some climate stuff in there that might come back to the court down the road. Don't know. Haven't read it. If anybody knows, let us know. What else in the mailbox?

Will: We have an email from friend of the show and my former students, Dan Simon, who was listening to some of our episodes about court reform, court packing, etc., and asked, "If I am a Democratic lawmaker, why don't I introduce a bill requiring seven votes for cert? Trans substantive seems constitutionally kosher. I think that norm custom rule, the subject to the rules Enabling Act, even though it isn't set forth in the court's rules," goes on to trace it back to the Judiciary Act, Section 25. "So, why wouldn’t that be a good court reform proposal? It disempowers the court in a way that seems obviously constitutionally"

Dan: Yeah, super interesting. I'm not sure whether it's constitutional. Do you think it's obviously constitutional to prescribe-- because this is not the same thing. But one thing that I've thought about and that I think I've talked to you a little bit about is rules that would say the court needs a supermajority to take certain actions. So, could Congress say the court needs six votes out of nine to declare a federal statute unconstitutional? There's arguments that no, because what Congress is sort of indirectly doing there is prescribing a rule of decision, basically putting a restriction on the court's ability to act. Wouldn’t this be the same thing?

Will: I think whether that's constitutional is debated, as you know, this is on stronger ground for at least three reasons. One, is it symmetric, and it's not favoring one substance out of a lawsuit or the other? It's leaving the decision below. But that's one level of neutrality up and that's one of arguments against the supermajority vote. Another is that it will always leave the lower court position in place, or at least some permutations of the supermajority vote can result in a minority-- if the Fifth Circuit strikes down some law, and then five Justices agree the law is unconstitutional, you can end up with four Justices reversing the Fifth Circuit. This avoids that problem. And maybe most interestingly, one of the arguments against supermajority vote on the merits is that there's sort of a long-understood backdrop that the right number of votes is a majority rule. That's this powerful default rule Congress can't displace, but cert's not a majority rule. So, cert's already this weird rule of four that sort of evolved--

Dan: That's sort of just a thing the court decided on its own, right?

Will: My understanding, I've been told this by people who have read the Legislative History carefully, and I have Legislative History downloaded on my iPad, but I've not read it carefully, is that when Congress was convincing the court to give it more discretion in cert, that the court, maybe Chief Justice Taft, told Congress that they will adopt a rule of four to make sure that like they didn't lose too many cases. It wasn't that court just did it but it's kind of Congress blessed almost like a quid pro quo of the cert jurisdiction.

Dan: Yeah, I think I've heard that. It wasn't in the statute though and if the court tomorrow said, "You know what? We've decided that we're not going to grant cert unless a majority of the court wants to." I mean, it could certainly have the power to do that.

Will: Well, I think if a justice proposed that, at least some other Justices would say that would violate our deal with Congress. Even if it doesn't violate the text of the statute, it would violate the understanding of cert. Maybe wouldn't be struck down if the court did it because it would strike down the court's own rules. But Congress would step in and say, "We want it to be seven." Now, one other thing people wonder of the supermajority rules is maybe they don't really matter. So, depending on how much the court cares about maximizing its own independence, it's possible the court would just respond to this with a very strong kind of courtesy fifth, sixth, seventh norm. Maybe not in the most hot button cases or something but it's possible they would just all conference, they'd adopt the rule of four. [crosstalk] 

Dan: And that’s how the Rule of Four works. You can think of it in one sense. If every time four Justices voted to grant cert, like five Justices could vote to dismiss the writ or just vote that the writ shouldn't issue. That's kind of what's going on with the current system, right?

Will: Yeah, I think the current rule, although again it can change, the current rule is that you can dismiss cases providently granted until after argument, unless you have apply the original [unintelligible 00:16:43]. But again, that's a way of institutionalizing. So, the court could adopt a rule that at conference, seven Justices will vote to cert anything that's four.  Now, maybe Justices wouldn't do that. I don’t know. 

Dan: Would that be better? If you're a Democrat right now, maybe because the court would not be able to hear any case, unless one of the Democratic-appointed Justices also wanted to hear it at a minimum. The court would be doing less stuff, as Dan Simon notes, though this would also give kind of free rein to some of the lower courts, which in the case of the Fifth Circuit, which is it's the wild west out there, you've got like half a dozen young conservative Justices who seemed to all be trying to audition for the Supreme Court by doing increasingly crazy things. So, maybe that would be worse, at least if you live in Texas and Louisiana. And where else is the Fifth Circuit? I can't remember 

Will: Mississippi.

Dan: Mississippi. Yeah. It has some real bad statistics. If you look at Mississippi, it's like mortality and literacy, it's not great. Sorry to any listeners from Mississippi. 

Will: [crosstalk] 

Dan: You what?

Will: I said I got a speeding ticket there once.

Dan: Did you get out of it, or did you have to pay it? 

Will: I paid it. 

Dan: All right, you follow the law. You believe in the law, the law is binding, you're a law guy, so seems fair. Sometimes, the law bites you. Sometimes, you're the windshield. Sometimes, you're the bug. So, one question. Here's one from Chris in Cambridge, who says, "Well, what if Kavanaugh had gone along with Roberts in Dobbs, and what would have happened there? You've got four votes for Alito's opinion, two for Roberts', three for the dissent." He notes that something kind of similar happened in Casey, where there was kind of a fractured court. I think there's a fairly clear answer to that, which is that the Chief Justice's opinion would be controlling. There'll be no majority, there'd be a plurality situation and the opinion that is kind of narrowest would control under the rule of Marks. Is that right?

Will: I think that's right, although a couple of footnotes. So, in a lot of cases, there are disputes about what decision is the sort of so-called [crosstalk] but we often have a kind of gut feeling that it's the one in the middle or the one that was joined by Chief Justice Roberts and Justice Kennedy. 

Dan: [chuckles] Yeah. 

Will: But sometimes that decision can in some ways be ones that there are odds with everything everybody else thought. And so, a few years ago, the court granted cert on whether it should reconsider or overrule the Marks Rule in light of these problems. We got amicus brief from the Richard Re drawing a great Harvard Law Review article he had sort of undermining the rule. And then at the end of it, the court decided that it appeared to be that the court is too fractured to decide what to do with the Marks Rule. And so ended up kind of ducking the whole issue by just finding a way to come to every one of the merits instead. And ever since then, I've noticed the court being a lot more cagey about its reliance on Marks' narrowest grounds things. Now, maybe it's just coincidence, maybe it's one of these like, they kind of know it's a can of worms, they try not to put a lot of weight on it. And maybe in this case, it will be obvious that Chief Justice's decision was narrowest. But sometimes, it's not totally obvious actually.

Dan: Do you think that there would have been a change in how the court feels about that with the recent personnel changes?

Will: Well, maybe now--

Dan: Like just Justice Barrett? Is there a hardcore originalist position on this?

Will: I don't know if there's an obvious originalist position on this, because the originalist's view is you shouldn't have opinions at all. You have the originalist's practices that every Justice-- [crosstalk] 

Dan: Yeah. You shouldn’t have majority opinions, you should have seriatim.

Will: Yeah, individual opinions.

Dan: Yeah, which would be a real pain for us.

Will: I'll just say the problem that Richard identifies comes up the most, when people care sort of not just about the outcomes, but also about whether you have a rule or a standard or certain kinds of principles. The problem comes in you imagine that there's a Justice whose first choice is all the way on the right, but whose second choice is all the way on the left and not in the middle, and that might be true, more and more now. You might just say, "Look, my first choice is we should have a rule this case, but we're not going to overrule it. Let's keep it." Maybe that's not the case that'd be true, but I bet there are cases that’s true.

Dan: Perhaps someday, we'll find out. I guess it would have to come up in a case where, like the court had previously fractured on something and the court was still fractured, and they were kind of coming back to it. And they're like, "Look, we're still fractured on this, but let us at least tell you what rule you should follow."

Will: Yeah, that's part of the problem is in a way, the lower courts have to confront this all the time. And the Supreme Court can always get out of it because the Supreme Court can always just say, "Well, that was then. Let's just tell you now what our view is." It's sort of like the nationwide injunction that way. It's like the court could keep dodging for a long time because they can always skip to the merits, but lower courts can't always.

Dan: Let's see, what else? Someone on Twitter just alerted to me-- and this is Bob Law Blog on Twitter just alerted me what is going on in North Dakota, which is a situation where North Dakota has one of these trigger laws. And something came up, which was something that we had talked about, which is here, the Attorney General had gone ahead and certified to the state's legislative council, that the Supreme Court had issued an opinion restoring the state's authority to prohibit abortion. Note that this happened before the Supreme Court had actually issued its mandate. Isn't this the thing that we-- 

Will: We did know about this, yeah.

Dan: We talk about this? Notes that after the Supreme Court publishes its opinion, the parties have 25 days, and to reach and to submit petition for rehearing. And so the district court said, "We're going to stay this trigger law for now because under the state statute, it requires the formal issuance of the supreme court's judgment through the certification and mandate."

Will: So, here, it's a question of statutory interpretation really though. 

Dan: Yeah. That incorporates federal legal question of when and then it becomes final. It doesn't matter that much practically, because the mandate will issue, nothing's going to change.

Will: Matters for us.

Dan: Yeah, matters for some number of days. But does suggest that these technical abstruse, metaphysical things that we talk about sometimes matter in in the real world.

Will: I guess the state could, and the question is, could a state go not just to a trigger law, but to what we call a hair trigger law or pre-emptive trigger law, where they say, "Our law is actually going to trigger the day the opinion comes out, not the day of the judgment." And, of course, by the time any case litigated that law were litigated [crosstalk] filed by them, so-- [crosstalk] 

Dan: The state statute is interesting, because it was amended. The original language said that the act becomes effective on the date the legislative council approves by motion the recommendation of the Attorney General to the Legislative Council, that it is reasonably probable that this act would be upheld as constitutional. And so, that clearly was true the day the Dobbs opinion issues. But then in 2019, not sure of the background, it was amended to say that the attorney general has to certify that there was the issuance of the judgment in any decision of the United States Supreme Court, which in whole or in part restores to the state's authority to prohibit abortion. So, the first scenario clearly under state law, that law would have gone into effect and then--[crosstalk] 

Will: [crosstalk] -because the judgment in Dobbs doesn't restore North Dakota's ability to do anything, because the judgment Dobbs is only about party's involvement within the city. The earlier one was kind of better. What's changed is that because of the Supreme Court's opinion, we now know that a suit brought in the Eighth Circuit will have a different outcome than it was before.

Dan: Yeah. I mean I think that the way to make sense of it is that the drafters of that statute were maybe not being as precise with kind of these abstruse distinctions between opinions and judgments so forth, but the court there interprets that language as referring to it as an opinion that is issued and where a mandate is issued even if that mandate doesn't actually say anything about North Dakota's law.

One other thing that we'll still circle back to, I think, maybe next time might be a good opportunity to circle back to it is that, you see, Ginni Thomas, Justice Thomas' wife is maybe about to get subpoenaed by the January 6th Committee about her involvement in the attempt to subvert the 2020 election. If that happens, that would be a good opportunity for us to circle back to a conversation we've been meaning to have about Justice Thomas' involvement in the court's docket, involving some of the January 6th stuff and what we think about what that means for the court, was it unethical and so forth. 

Will: Sure. Can I make a bold prediction?

Dan: Yeah, that they won't.

Will: If Ginni Thomas challenges this subpoena, if litigation goes to the Supreme Court, Justice Thomas will recuse.

Dan: I think that is likely. That doesn't necessarily answer the question of whether he should have recused earlier.

Will: Yeah. 

Dan: We all should do our Fed Soc throwdown episode. It might be getting to be time to do that? 

Will: Anytime, Dan. 

Dan: Yeah, I mean, you're always kind of slipping it in there. That's the Zamboni stuff. When you're like, "Oh, I don't even know if there's a Conservative Legal Movement." Give me a break. Right?

Will: You said it was called the Conservative Legal Movement.

Dan: It's called by me, it's called by a lot of people, you can dispute that-- You're not going to win on terminology. Who cares? That's not where you should-- have the substantive debate.

Will: That's fine. It's just, I was genuinely confused. I mean, if the question was does the--[crosstalk] 

Dan: You're not generally confused. You're a smart guy, Zamboni or not.

Will: I don’t even know-- We're talking about the Federalist Society, and then I start talk about the Federalist Society as conservative. If you're talking about the dark money web of organizations, it's maybe actually-- [crosstalk] 

Dan: Do you understand the dark money web funds, the Federalist Society, like the Federalist Society is--

Will: I have no idea if that's true. 

Dan: It is true. And in fact, you say the Judicial Crisis Network is a fringe network. You know it shares office space with the Federalist Society?

Will: Do you mean they're on the same floor of a building? I don’t think the same offices.

Dan: I think it's a little bit closer than that. I'll get you the receipts when we do this throwdown. They're like on the same hall. They may be sharing some rent and stuff. It's not like-- your attempt to portray--[crosstalk] 

Will: I'm on the same hall like my colleague Adam Chilton. That doesn't mean that like we're all part of one dark web.

Dan: Well, I mean, you are all funded by the same dark or light money. I don't know. [crosstalk]-funds from University of Chicago. I'm sure there are some anonymous donors. Don't pick on Chilton. Does he really want to be associated with you publicly?

Will: Well, no, that's my point. He's not associated with me.

Dan: Yeah, well, he is. You guys used to do a blog. What happened to your blog? 

Will: Adam stopped posting on it.

Dan: Okay. Blogs are over. You could do a Substack or you could do a podcast.

Will: I still post in the blog, [unintelligible 00:28:45].

Dan: Yeah, once in a while, mainly to bluntly promote our show I feel like, which is good. 

Will: Yeah. Don't complain about that. 

Dan: No, I don't. If you're a listener that discovered the show that way, thank you. Rate and review. Okay, so let's talk about Vega v. Tekoh. Maybe we'll talk about Kennedy -- [crosstalk] 

Will: Don’t say that. And if you say it, we're not going to talk about it. 

Dan: Yeah, we usually don't. Honestly for how big that case is, I might have less to say about it but we'll see. But Vega v. Tekoh, this case, I feel like it's more in the heartland of the stuff we'd like to do, and it is a little bit-- we've been doing some heavy stuff for a while, the super, super hot button, super intense cases. This one does break down along the kind of traditional partisan lines, but it strikes me as a little bit less fraught maybe than those cases. This is interesting.

This is a case involving a civil suit under Section 1983, which is a federal statute that allows people to sue state and local officials for violations of their rights. What's a good example of a traditional 1983 claim? Let's say, a police officer arrest you and beats you up without any probable cause, and stuff like that. That's a very straightforward example of where such a claim would be.

Will: Or a city adopts an anti-protesting law that forbids all protests in the part of town. So, you sue under 1983 to have it struck out on the First Amendment.

Dan: Oh, yeah, that's a good point. You're not always just seeking damages against individuals. This is also the cause of action that you would use to sue for equitable relief against local governments and state officials. You'd sue a state official under 1983 acting in their official capacity, and then the doctrine ex parte Young, it provides an exception to the normal rule of sovereign immunity when you sue that state official, you don't sue the state directly.

Will: Right. So, footnote. Probably if you didn't have that 1983 cause of action, you'd still have the cause of action anyway, because ex parte Young-- [crosstalk] 

Dan: Directly applied under the Constitution.

Will: No, through equity. 

Dan: Okay, yeah.

Will: Yeah, that's why two federal officers is the same way. But my understanding is that-- [crosstalk] 

Dan: Isn't that like still an implied cause of action? 

Will: So, I'm thinking about Armstrong-- [crosstalk] 

Dan: Not the right way to think about it.

Will: It's not. It's inequity according to this report.

Dan: It's just an inequity [crosstalk] action.

Will: An equitably recognized clauses of action. Equity didn't have clauses of action. But Section 1983 gives you attorney's fees. So, if you're suing a state officer for injunctive relief, you sue under Section 1983, you get attorney's fees. If you're a federal officer, I believe you don't get attorney's fees.

Dan: Attorney's fees are good. I could use some.

Will: You should bring some Section 1983 suits. 

Dan: Yeah, I think it takes years. I don't think they pay you that much, some statutory rate. So, that's the statute, and it applies-- the proper defendants there are every person who, under color of any statute ordinance regulation, blah, blah, blah, subjects or causes to be subjected any citizen in the United States or other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the Constitution, and laws shall be liable to the party injured in an action at law, suit in equity or other proceeding. Okay, so basically, it's giving you the right to sue for violations of rights, privileges, or immunities secured by the constitution and laws. So, you can sue for a violation of the statute, at least under some circumstances.

And here, this isn't just the normal case where, let's say the police beat you up, and you're suing and saying that was unreasonable. What happened, and this is an opinion, majority opinion by Justice Alito joining all the other conservative Justices, our plaintiff here was actually the suspect and the defendant in their criminal process. And Tekoh, who is the suspect, defendant, and now plaintiff, was investigated for sexually assaulting a patient at a medical center where he worked. And the defendant in this case was the police officer, Vega, who went and questioned Mr. Tekoh and hospital and got a written statement that was inculpatory. And then, what happens? Tekoh is arrested. He's charged in state court. And then, he tries to get the statement that he made excluded from evidence under Miranda. So, remind people about Miranda, Will.

Will: It says, "You have the right to remain silent." No, it says that the police have to inform you of your right to remain silent and have a lawyer and various other things like that. Or else, the statements you make without Miranda can be used against you. From the lawyer in court, controversial because it's not obviously contained in the Constitution and has usually been seen as a court-made prophylactic rule, like the Constitution itself gives you the right to remain silent, the right to a lawyer, and then the court has this right to be informed by your right to remain silent.

Dan: Yeah. We're going to get a little metaphysical on this in a minute. But it's primarily a rule of criminal procedure. It's about when in a criminal prosecution, a statement that you made under these circumstances when you were in custody, which is a specially defined term for purposes of Miranda basically, when you're interrogated while you're in custody, weren't given your Miranda warnings, those statements are not admissible. And so, Tekoh's argument is this was erroneous, and he ends up being tried twice. The second time, his statement is not excluded, but then he ends up getting acquitted. So, the issue becomes was the criminal trial moot. Because if he was convicted, and that was an erroneous ruling about the exclusion of the statement, the normal thing to do would just be to appeal that and go up to the US Supreme Court, if necessary. But that didn't end up mattering because he's acquitted, and so even though the statement came in, he isn't convicted. Then, he does something different. He now says, "Let's turn the tables. I'm going to use 1983 and go to federal court and sue the deputy and some other defendants and say that you violated my rights, including my Fifth Amendment right, by basically violating Miranda, by interrogating me in custody, without giving me the warnings."

Will: The baseline remedy for Miranda violation that you don't get convicted is insufficient. I'm glad they didn’t get convicted. But even so, his life has been made much harder, this trial and all that stuff. So, he wants more of a remedy. He wants people to say that the officer violated his rights under the Constitution and laws by interrogating without Miranda warning, and then using those statements against him.

Dan: Yeah, although the way you just framed it, I think kind of bakes in the answer to the question, because you're sort of asking, "Well, should the court make up some new remedy for --?" [crosstalk] 

Will: No, I didn’t say that. 

Dan: Basically, he wants an extra remedy. 

Will: He doesn't want-- he wants more than a solution. The question is--

Dan: What he's saying is, "Look, you violated my rights. 1983 gives me a way to sue you for violating my rights." There you go.

Will: Yep. The question is, is the Miranda right a right secured by the Constitution and laws? 

Dan: Yes. And that would provide a basis for making 83 suit. Before we answer that question, I do want to say, it is not obvious to me that this is a very consequential question for a couple of reasons. First of all, I don't know how many people who are acquitted are then going to go sue on the basis that their statements were improperly admitted in their trial, even though they're ultimately acquitted. I don't know how many defendants--

Will: Not anymore.

Dan: Well, we're not answering the question yet. How many there would be in a universe where this was available? Maybe some, we know about at least one. Also, not clear to me, the damages would be meaningful. I don't know. 

Will: Well, [unintelligible [00:37:55] damages include the trial. So, if you think that without the statement, they would have had no case. I'm not sure that's right. 

Dan: And the trial wouldn't have happened. That's sort of a--

Will: Yeah. They wouldn't have even brought charges because-- [crosstalk] 

Dan: Maybe.

Will: -a confession in the court. I mean, there are cases like this under other constitutional rights where the police, not Miranda, but the police, about the Fourth or Fifth Amendment, they manufacture evidence against you, and then eventually you get out and then eventually you get to bring a case. And sometimes, it's a part of some of the Innocence Project, sometimes finding people who are being wrongfully charged or wrongfully convicted at first and getting the convictions overturned. But then once you do that, you sufficiently egregious behavior, you try to get remedy.

Dan: Yeah, fair. The very least I can say, it is much more consequential to more people, whether the court poses or recognizes new limits on Miranda's applicability in the context of criminal trials. When the court says, "Yes, you can admit this evidence, even though it was taken in violation of Miranda," that has a much broader sweep in terms of the number of people affected. And if we have any listeners who have been involved in civil suits like this, they can tell me. Actually, these cases would be quite common in a world where the court had authorized them, but here, the court is going to say, "No, these kinds of suits are not permissible."

Will: It's not that they're common. It's just that they're going to be important. 

Dan: They could vindicate people's rights against-- [crosstalk]

Will: Yeah. They're only going to be brought for relatively egregious behavior where it's unlikely the error was harmless. Maybe that's a small number of cases but again, this could be an important set of cases.

Dan: Yeah, I don't know about the prediction of when they'd be brought or not. Maybe that's true, maybe it isn't. And then, the court is going to say, "No, that this is not the kind of thing for which you can sue under 1983." And the reason is basically that Miranda is in this weird, interstitial space in that the court has said, it comes from the Constitution. It is a rule that comes from the Constitution. But then, it is also said this seemingly conflicting thing, which is that, as you flagged a second ago, that is a prophylactic rule, which is a metaphor that I always feel a little weird about, trying to imagine it exactly what that means. But can you explain that? The court in a bunch of cases says, "Look, this is a prophylactic rule that goes beyond what the Constitution really requires, like the real core constitution."

Will: Yeah. So, in Judaism, we call this building a fence around the Torah, but same sort of idea. So, the actual rule is X, but then because violating the rule is really bad, because you recognize that just telling people to follow the rule will lead to a certain amount of violations, you create a second rule that will help keep you from getting too close to violating the real rule. Even you have people doing this like with trying to arrive to something on time. You say, "Look, I always want to get to the airport before my plane takes off." Well, as a prophylactic rule, I'll try to get to the airport half an hour before plan takes off, so that if I miss by a few minutes, it's not a disaster. So, we might say, "Look, we want to make sure that confessions are voluntary because picking out whether they're voluntary ex post is going to be a little tricky."

Dan: And that's the part of the core Constitution. Everyone concedes, it violates your Fifth and Fourteenth Amendment due process rights to have a confession extracted by torture. That's literally involuntary. That's the core part of the Constitution.

Will: Yeah, and not just torture, but you can't be compelled to bear witness against yourself and there are various kinds of compulsion. And so, because measuring all those kinds of compulsions can be tricky, the court's idea is--

Dan: There's due process too. We've had this conversation before, just don't forget. Due process voluntariness, it doesn't just come from the Fifth Amendment privilege against self-incrimination.

Will: I didn’t like that then, I don't like it now, but I'll accept it. Whatever those ultimate voluntariness rights are, then we say, "Well, as an extra rule to make sure that things are voluntary, we're going to make officers inform you of your rights." It's not that it's inherently involuntary if you haven't been informed of your rights, you might have known your rights anyway, for instance. But as a safeguard, this is other way thinking about it, we'll have this extra rule. And so, what's controversial about that is sort of why doesn't the Supreme Court have extra rules? Nowadays, we don't do this with other parts of the Constitution. We don't say, "Well, Congress is limited to its enumerated powers. So, we're going to strike down laws that are within Congress' enumerated powers, but kind of too close to the edge to make sure that it doesn't violate its enumerated powers." Maybe we do it sometimes in free speech. We've talked about chilling effects or something. But it's controversial once the court starts going beyond the actual legal rules that are already made in the Constitution.

Dan: Yes. So, why is the court allowed to do this? Some people have called this and some other things Constitutional Common Law, but that's a contested category, whether that is permissible. Other stuff that might fit into that category, Fourth Amendment Exclusionary Rule, do you think that's fair to say that's in the same kind of ballpark?

Will: I guess, sort of. We talked about this one in our Bivens episode. I think a lot of remedies sort of fall in this category, but it's a little bit of a different-- [crosstalk] 

Dan: Yeah, because it's about what the remedy is for a violation, rather than just what the Constitution actually requires.

Will: Right. Even if you thought there was necessarily or traditionally or logically like a lot of broad, traditional common law discretion of remedies, expanding that the common law discretion over the primary rules, is a little bit of a leap. Just two other features about this, like Miranda itself, for instance says, "Maybe you don't have to do it this way. Maybe Congress could propose a different prophylactic rule that would work as well. And we would go along with that." That's never happened. Congress did adopt a statute that basically just tried to abolish Miranda but not put in place another prophylactic rule [crosstalk] Supreme Court many, many decades later said, "That is unconstitutional."

Dan: Yeah, it was a weird situation, because the Congress did that pretty soon after Miranda, and then the statute just kind of sat there. Nobody really did anything with it. And then, actually, government tried to use it, and then went to the Supreme Court asking the court to overrule Miranda in an opinion, a very confusing opinion by Chief Justice Rehnquist. The court did not.

Will: Yes. I think by the end actually, the government was not even trying to have the court of rule Miranda and they ended up having to appoint-- [crosstalk] 

Dan: Yeah.

Will: But yes. Again, sort of confusing how we can get this thing, that even the court itself would say, "If you can do it different ways, we're going to do it." And then, the extra tension is created by the fact if this were not Miranda, there's some prophylactic rule that were not as famous, probably a little bit of a rule by now. But Miranda is so deeply rooted in various ways that the court has been more often to overrule it. 

Dan: Yeah. And in that case, Dickerson where the court was faced with this head-on challenge, it said, "Miranda's a constitutional decision that adopts a constitutional rule. And so, Congress doesn't get to just overrule it, even if Congress might be able to tweak the rules in some other way."

Will: So that's what produces this strange metaphysical question. Miranda exists. What is Miranda? Is it a constitutional right? Is it not a constitutional right? Is it some other kind of right? Now, the court and Vega has to confront this.

Dan: Yeah. And the court here is going to say, "First, a violation of Miranda does not necessarily constitute a violation of the Constitution. And therefore, such a violation does not constitute the deprivation of a right secured by the Constitution as required by Section 1983." Not obvious to me that that's wrong in light of the long line of cases in which the Court has said Miranda is not a pure constitutional ruling, but is instead of prophylactic rule. That said, it is a right, that's a right enjoyed by criminal defendants in criminal trials. And the court has told us it comes from the Constitution, even if it isn't like the core Constitution. And so, why is that not secured by the Constitution? 

Will: Yeah. I think the idea is the right secured by the Constitution is the voluntariness right or the non-compulsion right, [unintelligible [00:46:48] right, the due process right. And Miranda is a right, is a sort of secondary right that's not itself secured by the Constitution. 

Dan: Who is it secured by? Someone is securing it. 

Will: Well, maybe it's secured by the Supreme Court's decision that this is a good way to effectuate the Constitution. But the Supreme Court itself said, "Look, the Constitution doesn't require this. You can do it in other ways." Again, I'm not sure this part's wrong. Two things about it struck me as tricky are, you might have read Miranda to say, "Look, the Constitution does require there to be some kind of prophylactic rule. The Constitution does not require any particular prophylactic rule. It's open to different ways of doing it." But just as the First Amendment requires us to be wary of chilling effects in the First Amendment, so we err on the side of caution in various places, you might have said voluntariness requires us to have some kind of prophylactic rule. And so, this is a deprivation of your right to adequate protection of your self-incrimination right, or something like that. The court doesn't go there and maybe they're just slicing the bologna too thin.

Other thing I find a little weird is that the meaning of this phrase like, "rights secured by the Constitution" is a little obscure. And that is interesting, we're going to try it, but the court doesn't go anywhere near because it's a little discomforting. I think Michael Collins in Virginia is one of the leading scholars on this. But there were a bunch of cases in that sort of Reconstruction era that suggested that rights secured by the Constitution [unintelligible 00:48:18] term of ours. That meant it had to be a right that it really came from-- I guess it was secured by the Constitution was not the same thing as being in the Constitution. There's a whole topology about political rights, other rights, which rights really are secured by the Constitution and what that means. You can imagine the court actually engaging in some sort of textualist analysis of "secured by", but they don't.

Dan: And that would potentially limit the scope of 1983 and--

Will: I agree. Yeah, it might be that's the reason that we didn't see a lot of-- there's always this mystery of why is there an explosion of Section 1993 claims at various points in history? And we'll try to pinpoint various-- this decision did it, no, it's this decision that did it. Collins thinks actually might be a sort of transformation in the understanding of "secured by". We could have tried to actually go into the weeds here, and the court just stays [unintelligible [00:49:07]. 

Dan: Yeah. Whatever it means, it doesn't mean Miranda. Okay, what about this other part? 1983 also protects rights secured by the laws. What about that?

Will: Yeah. So, this is the part of the decision I find even more puzzling. As I understand it, the court doesn't deny that Miranda might be a law, like a judicially crafted prophylactic rule could be a law. But instead, they say, "Well, if we're going to go that route, then it's not the constitutional part. It's just the judicial crafted law part. Then, we have to ask ourselves as a matter of cost benefit analysis in excess of our own discretion, whether we want the law to be one that you can sue under Section 1983 for." Once you're in that box, the law's box rather than Constitution box, it's just up to us and if we are wanting to. 

Dan: See, that seems weird to me, because it seems like if figuring out whether it's the laws should ask, does it violate the kind of rules of conduct, does it violate the rules that govern what the state can do? And then it's a separate question of what the remedy is. But why does the court get to decide the remedy in the context of deciding whether it's the law? I mean, because Miranda is the law, at least in some sense, right? 

Will: Yeah. So, there is a little bit of analogy here to the way this works for other federal statutes because there's some case law about this. When Congress passes a statute, it doesn't automatically qualify as the law part of Section 1983. Instead, it is a kind of investigation into the text of the law and the purpose law and whether the kind of law Congress meant to be enforced under Section 1983. So, the court may be kind of thinking of the same thing. They're like, "Well, with statutorily created rights, we can ask if Congress wants this right to be enforced in Section 1983. We're the Congress of Miranda, so we get to do that." I don't know that totally works because in the statutory cases, the idea is you have to look to the statute and see if it really creates a right. Does it have rights-creating language, and does it have any sort of like provision that implicitly repeals or exempts Section 1983. And those hook into the actual formal text, like is this a right secured by the laws? 

But when you're talking about a judicial decision, the court does create a right, it seems harder for the court doesn't put itself in Congress' shoes there. Again, the better version of what they could say, although maybe this will sound bad, is to say, "Well, look, when Congress creates a statutory right, they always have the option of saying, "Yeah, but we don't want it to be a Section 1983 right."" But they always have the option of just like adding that in the statute and saying like, "This is the only remedy." And since we created Miranda, we can just say, "We don't want Miranda to be a Section 1983 right. We just want it to be a criminal procedure right only."

Dan: And that raises the question of what is the Miranda right at all? Is it a right against being interrogated in this way? Or is it just understood as a right against having interrogations conducted without warnings used as evidence against you? Does that make sense? 

Will: Sorry, the interrogation version versus the evidence version?

Dan: Like, is the right against the police conduct or is the right violated only when it's used against you? When you become basically a witness to the criminal trial.

Will: I thought we already decided it's the second. I thought that was what sort of boiled out of Chavez v. Martinez among other things.

Dan: Yeah, exactly. That's where I was headed with this next. But taking that to be true, that it really is a right, like the right is only about its use against you in a criminal trial.

Will: That happened here. 

Dan: Yeah.

Will: It was used against in the criminal trial.

Dan: The question, who's violating it right there? Because he's suing the deputy. The deputy didn't conduct the trial. The deputy conducted the interrogation.

Will: Well, I don't know if the deputy-- the deputy might have-- I don't know [unintelligible [00:53:20] trial. 

Dan: Well, right. He wasn't the judge or the prosecutor or something.

Will: Yeah, but those people [unintelligible 00:53:25]. I mean, if your right was violated by a conspiracy of three people, the deputy, the prosecutor, and the judge, I think you're allowed to sue only one of them, while the other to have absolute immunity.

Dan: Okay. So, fair. This would draw a distinction between someone interrogates you without Miranda, and then they decide never to bring charges, because that's not a useful confession versus the situation where you're interrogated without Miranda, and then tried, and then it's not properly excluded. Okay, fair. 

The other thing that the court notes is that, like, "Look, if we're going to go the other direction, it's going to get messy," because these are situations where there is a final state court ruling that presumably was appealed, or at least not appealed, in either way, went final. I guess if the person is acquitted, that evidentiary ruling would never have been appealed, because it would be moot, because there would be an acquittal. But basically, there was a state court ruling that possibly has some kind of res judicata effect, that this confession was not a violation, that this interrogation is not a violation of Miranda. 

Will: So, this is a makeweight because this is, again, all the other criminal procedure rights are actually in the Constitution. You can already do this if there's evidence, Fourth Amendment violations, manufactured evidence, other due process violations. We talked about these kinds of post-acquittal Section 1983 suits, they're not the most common thing in the world, but there's whole law firms that specialize in these and tons of jurisprudence them. But this is kind of messy. It's true, but you just fold Miranda into the existing case law on these questions, and in some ways, created like a special exception to lay it up, afterwards you can sue for your other constitutional rights but not Miranda is a little weird.

Dan: Yeah. So, you don't buy that, that there's any procedural objections there because you just think the court, we're already equipped to deal with that?

Will: Yeah. I guess what the court would say is, "Yeah, we don't like those issues. We deal with them because we have to in the constitutional rights cases, because those are constitutional rights. But do we want to create more of them? No." It's on the margin of, "We'd like fewer of these suits," the court would say. But I think that's makeweight, it only works because they don't really like Miranda.

Dan: Okay. This is a relatively short majority, 16 pages, and then we have an even shorter dissent by Justice Kagan, 6 pages. Is that why we selected this case to talk about, to make our lives easier? Maybe. You decide. But Justice Kagan, as I said, this is a case that splits the court on traditional partisan lines and she dissents saying that the court is wrong and that this should be a cognizable right in the circumstances under a 1983 provision, that Miranda predictions are a right secured by the Constitution under 1983. 

Just as the majority has all the stuff we can point to about how Miranda is not really a constitutional rule, it's prophylactic, she points to this Dickerson case that says, "Miranda is constitutionally based, has a constitutional basis. It's of constitutional origin and has constitutional underpinnings, and it sets a constitutional minimum. So, we have at least one majority opinion of the court that at least says in a lot of ways that Miranda comes from the Constitution, right?

Will: Part of the question is, does the majority really just think Dickerson was wrong and if Miranda was wrong?

Dan: Yes. 

Will: And how worried were you with that? And the same thing, maybe the most-- majority opinion has this footnote where they're describing Miranda. And they say, "This was a bold and controversial claim of authority." Footnote. In a footnote. Does the court have the authority to do this kind of thing? We're not sure. And they cite my colleague, David Strauss, in a different article and then Henry Monaghan, and Justice Scalia cites Dickerson. But that's what the court did Miranda, and we do not disturb that decision in any way. Rather, we accept it on its own terms. And for purposes of deciding this case, we follow this rationale. I think if I was invested in the future of Miranda, this would make me nervous because when the court goes out of its way to characterize Miranda as doing this bold, controversial, unusual thing that isn't obviously justified, and in this case, we're not disturbing it. It makes it easier for the next decision to come along and say, "Well, yeah, now you think about it, it really wasn't justified."

Dan: Yeah. And go back to Dobbs, does Dobbs lay the groundwork for rolling back other constitutional rulings? What do you think? My instinct is that I don't know whether you would get to five on overruling Miranda. I mean, it's just the rule is, it's so entrenched in sort of police practices, and it's also not clear whether it's really a big deal. My understanding is a lot of law enforcement is totally fine with it, because it just gives them a very simple rule to follow and doesn't actually end up reducing much in the way of statements and the ability to get confession. So, I don't know. I think that some of them would. I think that Alito would, I think Thomas would, I think Gorsuch might.

Will: If I have to guess, I would guess that there are four votes to overrule Miranda, but not five. I'm sort of puzzled by this question of whether Miranda is a big deal. The standard view is, please comply with it, it's an easy rule. People just waive Miranda rights anyway. The thing I don't understand is that are these areas where the law enforcement resolutely doesn't use Miranda warnings. Do you remember during the War on Terror, Dan? There are all these cases about unmirandized statements from our various detainees and something like that. [crosstalk] 

Dan: Yeah. Was it the Shoe Bomber, where there was this complicated decision making within the part of Justice about when to mirandize him? One of those, I don't remember if it was the shoe guy, or one of the others.

Will: I will say, from the outside, it appears that a bunch of people in the national security apparatus who really want to extract information seem to think they shouldn't just mirandize everybody at the beginning and just get out of the way. Something turned on that. Now maybe it was just technical, they're worried that once they mirandized people that will trigger other legal consequences. Or, maybe it really is true that for this some people that once they get mirandized, I don't know, that wakes you up in some way or changes the calculus in some way. So, I'd love to see the right kind of empirical investigation of this question of whether Miranda matters. I'm not quite sure how you do it or who would do it.

Dan: Yeah. And it might well be the case that it matters a lot in terrorism cases where you've got suspects who could be from other countries and less familiar with our criminal procedure, who might believe that these cases are handled is fundamentally different than regular criminal cases and might not understand that they actually could potentially get an attorney and so forth. I was looking at Richard Reid, the Shoe Bomber, was read his Miranda warnings quite promptly. My memory is that there was another situation where another terrorist suspect was not read the Miranda warnings for a while, eventually was read them, and then stopped talking at that point. I don’t think [crosstalk] that was--

Will: Right. That seems to happen in criminal cases too, is that the thing is you read this case, somebody talks for five hours, and then they mirandize them and the person stops talking, which suggests that [unintelligible [01:01:17]. One other hypothesis I've had is sometimes the police don't tell you that you're the guilty person, that you're person they're going after. I mean, they have the courage to come in, clear name, and you tell them what happened, and that will help them, whatever, [unintelligible 01:01:37] story about how they're not really after you. And maybe for a lot of people when they mirandize you, is when you suddenly realize, "Oh, they're after me." That's the thing you do to the guy in Law & Order, who's going to be the defendant.

Dan: Yeah. Although that's somewhat built into Miranda already, which is that if you're not feeling the coercive pressure of a custodial interrogation, Miranda doesn't apply. If they just come talk to you at your house and say, "Hey, can we chat for a minute?", Miranda is not going to apply there. Whereas if they say, "Come to the station house, come into interrogation room, and three of us are going to stand around you," that's different.

Will: Yeah, no, right. But again, it seems there are people who went to the station house, went into the interrogation room, and were talking until somebody read them Miranda, and they stopped. I like a good ethnographic anthropological study of what Miranda really does.

Dan: I think it was Tsarnaev, actually. I'm looking this up. Tsarnaev is interrogated for 16 hours and then gets read his Miranda rights at that point. And the justification for not doing so initially was there is a public safety exception of Miranda that the government can ask you questions without Miranda when it's necessary to basically protect against an immediate threat.

Will: Yeah. This is what makes me a little suspicious that Miranda still matters.

Dan: That makes you suspicious that Miranda matters?

Will: Basically, suspect that it does matter.

Dan: Oh, that it does matter. Okay.

Will: Contra to the kind of cool person law prof conventional wisdom that we all know Miranda doesn't matter, maybe actually the man on the street view that it does matter is maybe right.

Dan: Yeah. There's some evidence that it doesn't end up overturning that many convictions but that doesn't really tell us much, because it could preclude-- it could lead to acquittals, but it also could lead to charges not being brought in some number of cases.

Will: Anyway, interesting little case. I think if this had been decided in April or May, we would have spent more time on it. But maybe we will [unintelligible [01:03:32] what we have to say about it.

Dan: Yeah, I think that was pretty good.

Will: Can we take 10 minutes for the football coach?

Dan: Yeah. I think we should probably do that. We did say we were going to. This is one of the bigger opinions. Kennedy v. Bremerton School District. It's about a high school football coach, Joseph Kennedy. There's a dispute about what exactly he was doing. And exactly whether this was something that looked more like official leading of student players in prayer versus just this kind of silent, private prayer that he was doing after football games. The dispute is whether the school district-- well, public school could fire him because he wasn't following instructions and that they could ban this practice, because it would create the impression that the school district was endorsing religion and thus, potentially violate the Establishment Clause.

Will: Yeah. There's a huge amount of media about this, like Supreme Court is lying about what really happened or is Supreme Court part of the kind of disinformation world, which I think is partly an artifact of clever lawyering/bad lawyering. As I understand it as general terms, Coach Kennedy did a lot of praying on football field and often had his students with him, and in some formal sense, it was voluntary. And then of course, we'd ask in the real world, was that voluntary? And that's a question that has been in the school prayer cases for about 50 years. The teacher leads a so-called voluntary prayer in the middle of math class, is it really voluntary to participate?

But then, the two or three days that for some reason are the ones that the school district maintained they were disciplining him for, are days in which none of his students were out there in the field with him. In one case, a bunch of players in the opposing team were with him. Players asked if they could join him, and he just said, "Well, it's a free country." So, on the record, sort of read--

Dan: Is it, Will?

Will: Is it a free country? [chuckles] Yes.

Dan: Turns out the best understanding, the original meaning of the Constitution is that it is not a free country.

Will: The original meaning was not a free country for everybody.

Dan: Yeah, that's true.

Will: I feel this actually often happens in litigation, is this sanitized artificial version of the record that is the legally relevant record. And then, there's the thing that's actually going on. I don't know, maybe that's just unsatisfying when it's a big case for the Supreme Court, and that makes us a bad vehicle. Or, maybe that just means this happens all the time and people shouldn't be that worried about it. 

Dan: Yeah. And so, there is this dispute where you have the majority opinion by Justice Gorsuch who describes-- you're right that in terms of what's legally relevant, it's a limited set of things but Justice Gorsuch does describe the broader factual history. He sort of does so in a way that makes it seem like this was a totally voluntary thing, not really part of the official activities. And then, Justice Sotomayor leads off her dissent, and we have another opinion that splits along the traditional party lines. I think we're going to see a lot of these. I need a code word just to say that quickly, who says, "Look, this is not the way the court is describing the record. It's misconstruing the facts. What the coach had been doing for a long time looks a lot like basically, leading students in an official school prayer that had the appearance of being school sponsored."

I'm not sure that she's wrong about that especially when you think about, first, he starts doing this on his own, and then more and more students join, and he starts giving motivational speeches, which is the thing that a coach does as part of their job, and not just on their own time. There is a meaningful argument that the extent this becomes something that a lot of the players are doing, the coach is encouraging, does it start to become something that there is some amount of pressure to engage in?

Will: Yeah, I don't know. Coaches I've known gave motivational speeches even on their own time. It's just kind of like the way they are, but I take the point. One thing I stumbled across recently is this is, I think, a recurring issue. Back in Tinker, Tinker is the original "students have a right to speech" case about black armbands during the Vietnam War. And the court says, "Students have a right to wear the armbands as long as they're not disruptive." Of course, black armbands aren't that disruptive. And so, the court says it's fine. Similarly, there was kind of sanitizing the facts there. Like a bunch of people who look at it later say actually, the wearing of these black armbands against the Vietnam War really was producing quite a bit of strife and violence, especially in the context of Vietnam War, instead of patriotic, anti-[unintelligible 01:08:39] sentiments at the time. But the court intentionally read out to reach this kind of students' rights decision on a sanitized version of the record.

So, maybe this is like Tinker for religious coaches in a way. It's like on the hypothetical version of the fact, it's not actually true, but maybe it was one that the court's led to consider this right. And then, it won't actually resolve the question of what happens in the real world where the sanitized thing is not true. That's sort of left for the lower courts to look at. Not in this case, but in all cases.

Dan: Yeah. Although it seems like it encourages future courts to interpret the disputed facts in ways that paint things less as official action and more as those totally private activities.

Will: Yeah. Well, after Tinker, you're just left with a lot of lower court discretion on both sides about what to count as disruption and how much to look at it. That sort of several decades later eventually gives us more student speech cases, and maybe this is what we're setting ourselves up for. There'll be lower court decisions about is this one more coercive, and some courts will use their discretion in one way and some courts use their discretion in the other way and then eventually, we'll check back in 20 years and see what settles out.

Dan: Yeah, so that's the factual stuff. The kind of stuff that the court does with the law is pretty consequential in that the court, and maybe this will be disputed how to describe this, but the court previously had a test called a Lemon under which you try to ask, would sort of a reasonable observer think that this thing the government was doing was endorsing religion? And that would be Establishment Clause problem. And the court overrules that, but then says, "Oh, we've already overruled it."

Will: The court never uses the word 'overruled'. This is the thing that's amazing. This is the part where I feel like I'm being trolled. Okay, for decades, we've had this case, Lemon. For decades, we've had Supreme Court decisions that don't apply Lemon, and then find some in the lower court judges about whether Lemon is still good law. Conservative lower court judges all say that Lemon is not good law and the liberal or even more central ones say, "Well, until the court tells us Lemon is overruled, it's not overruled. The fact that Supreme Court's not following it, it doesn't mean it's overruled." And Justice Gorsuch himself on the Tenth Circuit was in a bunch of these fights. He has these dissents for denial overhearing a bond, where he says, "Lemon's been overruled," and the Tenth Circuit disagrees with him. 

It's funny, because then every time the court gets one of these cases, they know that they could say, "By the way, Lemon is overruled," and they never do. As recently as a couple years ago, they had this case about monuments, American [unintelligible 01:11:27] where the court says, "Well, it's clear you should not use Lemon in this context." And Justice Gorsuch tried separately to say, "I mean, you should never use Lemon. Lemon should be overruled," but never quite get there.

So, finally, Justice Gorsuch gets to write this majority opinion for six Justices. Finally, you'd think you'd have the votes to say, "Just to be clear, Lemon is overruled." And he never uses the phrase 'overruled'. Now what he says is, "It's been abandoned." He even says, "It was abandoned a long time ago."

Dan: Long ago. 

Will: Yeah. Which has this is a little bit of the Trump v. Hawaii of rule of the court history flavor. It's like, "Lemon is gone. Who killed Lemon? When was Lemon killed? It's a mystery." Exactly when was it abandoned and when did that happen? "But let us now say that already a long time ago, it's been abandoned." But here's the thing, is Justice Gorsuch of all people knows the magic words are "Lemon is overruled." And the dissent uses the phrase, "Lemon is overruled," and the majority doesn't. And so, I've got to think that's on purpose. I've got to think somebody who joined this opinion would not let Justice Gorsuch use those magic words.

Dan: Yeah. But it has this gaslighting feel to it. When you combine it with--

Will: I prefer trolling but--

Dan: Yeah. Combine it with this dispute over the facts that thought that Justice Gorsuch could have engaged with a little bit more rather than just sort of trotting out his somewhat contested vision of the facts, I think, didn't adequately grapple with some of the more complicated things here. They were going on about how much disruption this was causing and so forth. When you combine that with this sort of stealth overruling-- it's not even really stealth, but it's like, Yes, you're right, he doesn't use the magic words but basically, if you say, "We have abandoned this test," it's really hard to see that as anything other than that. Combining those things just reveal a court that is incredibly eager to take big steps and change the law and get rid of things that they don't like. I think that's not great. I think that we should have-- even if the court wants to do things like that, I think it would be better for the court not to be falling all over itself, get to the ultimate outcome they want, and maybe really decide these cases. Like cases, and this struck me as a data point, the argument that the court is being really aggressive.

Will: I don't love this opinion, but I have the opposite reaction to it. My objection is to minimalist. It's like it would have been more aggressive for the court to confront the dissent's versions of the facts and say that's okay. The dissent to say, "Yes, even if a bunch of players are with you and you tell them whatever, that's okay." But it's more minimalist, the gaslighting feel, for the court to only uphold the conduct on a kind of more sanitized version of the facts.

Dan: Yeah. But then-- [crosstalk]

Will: And similarly, it would have been more aggressive for the court to say the damn magic words. And for some reason, even now, they can't.

Dan: I guess but I guess if the words that you say lead to exactly the same outcome, I-- 

Will: They [crosstalk] do. I think there's going to be a lower court opinion in the next couple of years that's going to say, "Well, the Supreme Court says they've abandoned Lemon, but they haven't overruled it. And so, until they overrule it, we're going to keep applying it."

Dan: And then, they'll reverse that decision saying, "No, we abandoned it."

Will: Maybe, maybe not. Especially when it depends on whether you think this is-- again, if Justice Kavanaugh and Justice Roberts are actually forbidding Justice Gorsuch from saying the magic words, then maybe it's because there are at least some lower court applications of Lemon that they would not grant cert on. So, some of this [unintelligible 01:15:07] I think Justice Gorsuch effect. This kind of majority opinion is not his strong suit. The sole dissent, the hard-charging concurrence, that's where he really gets his voice out, if you really read his pieces. Now, when you've got to be a little bit more minimalist, because I think he's being forced to be here, you've got a little bit of an awkward fit.

Dan: Yeah. I don't know if I'm going to buy into the frame of this as minimalist, but I agree with some of those criticisms of what he's doing. Also, it's not obviously a case where you have to abandon Lemon, because the leading competitor to Lemon is a coercion test. Is the state coercing you into following a religion? That's at least one competitor. And there's a story you could tell that this is not just that these practices weren't just endorsing religion, that they were providing enough pressure to students who would potentially be informally sanctioned, maybe they'll lose playing time or something, they'd get in trouble with their coach for not joining the prayers. And I think that in that context, I could see that. I see that as coercive in the same way the example you gave a second ago, of a teacher in class leading prayers in the middle class. Yeah, I mean, are you going to get sent to the principal's office if you don't join? Maybe not in some hypotheticals. But are you worried about getting your grades docked? Yeah.

Will: Yeah. Again, I take it this is partly at the very early stages, the school district relied on the Lemon theory rather than the coercion theory. And so, the court says this is a technical matter, they can treat this all as an endorsement case. That's not necessarily wrong, but I'm with you that it's kind of unsatisfying. It feels like if Justice Kennedy were still here, maybe he would have wanted this to remain. He would have said like, "Let's set up the real question is--"

Dan: Yeah. And that seems better, right? To not just rely on the convenient fact that this case could have been better lawyered earlier on, to jump ahead to the big outcome rather than, "Okay, let's get a case that presents it in the best possible light, and then we'll give you the answer." Again, not doing that smacks of this desire to just jump ahead.

Will: I guess I don't have the same reaction. I do think there's just this awkward fit, and this goes back to even North Dakota thing we were talking about that on the one hand, we think of the Supreme Court of giving us these general commands about constitutional law that obviously are not just about the parties to the case. But then in various ways, the court is still stuck to the trappings of the individual litigation model. Like, here's arguments from the parties, and we're able to raise, to issue judgments. And that's like an awkward fit for the court sometimes, and this is one of those times that that's awkward. As long as we just get to have more cases about this though, which I think we do, on its own record, the next praying football coach, presumably the school district that wants to fire him, will say, "Three of your students said that they felt coerced, and so you're fired for that." [crosstalk]

Dan: Or they won't fire him because they think that they are forbidden from doing that, because they think there's enough uncertainty coming out of this opinion and that case won't arise. I think that's sort of the problem, which is that if you answer the question that's really presented by the case, then it leaves freedom for future cases to answer a different question. Whereas if you give this big answer to a case that doesn't necessarily ask that question, you may be precluding further development.

Will: Yeah, maybe. Whichever way you rule, you're going to potentially end up with some errors in one direction or the other. And so, the court's obviously trying to shift it from-- maybe right now, there's not enough praying football coaches, and then there'll be too many, and then we'll kind of--[crosstalk] 

Dan: I don't think it's symmetrical, because in some directions, you might preserve future cases, and in other directions, you might just completely shut it down and prevent the clarification of the law, right? 

Will: Yeah. But I'm not sure whether it will be shut down here, because again, if you have students who feel coerced and they tell the school district, presumably because the risk [unintelligible 01:19:37] from them.

Dan: What if they feel too coerced to tell the school district?

Will: Maybe. If it was a senior and they graduate and then statute limitations is still there, they get two years, whatever. School districts, I think, they worry about litigation on both sides. I'm not worried we're not going to get any fired Christian coaches in the next 10 years, let me put it that way. Or maybe it won't be a Christian coach [crosstalk] about.

Dan: Maybe we'll have a Mississippi school firing a Church of Satan coach.

Will: Or a coach who kneels during The Star-Spangled Banner or whatever. So, I'm not that worried that school districts are going to be so protective of the free speech and free religion of all of their employees that will never get cases about these again. [unintelligible [01:20:20] risk.

Dan: In the fine state of Indiana. Well, we will see. But I'm going to stick with my analysis that this is a court that is eager to do big things, and we'll see. You've got a lot of Justices on the court who are interested in religious liberty cases. Justice Alito has said in public remarks that he really sees that as an agenda for the court over the coming years. And so, this will not be the last such case. Do you think that the core school prayer cases could be in jeopardy?

Will: It doesn't feel like that to me. My gut instinct is no, but I feel I should look into it more before I commit to that view. Yeah, this feels different. But the decisions were subject to a lot of scholarly and political criticism at the time, and it may be that I'm being too narrow minded by, I think, [unintelligible [01:21:16]. I guess that's where my opposite reactions come from, is I feel this is not the court being eager. I think the court being eager is going to look a lot more-- the same Justices once they start feeling aggressive are going to do stuff, maybe on the stuff they did this term.

Dan: I mean, sure. But this was an aggressive term, like the court could have decided Dobbs on narrow grounds, and the court jumped ahead to overrule it. The court here is arguably, and I think plausibly, overruling a precedent, a very important precedent, if it doesn't say that it did so. And yes, could the court do things that are even further out there? Could they go the next step and say abortion is constitutionally prohibited or any number of other things? Sure. There were a lot of big changes to the law.

Will: This is always hard to talk about. It's all relative. On an aggression meter of 0 to 100, the reasonably plausible outcomes put them at 60 or 70. They definitely are more aggressive than not, but without a lot of imagination, it could be a lot more.

Dan: Yeah. They could do anything. Well, we will see, for better or for worse, depending on what you want. Okay, that's it. That's probably a good place to wrap it up. Anything else we needed to talk about?

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Will: Thanks for listening. Thanks to all of our listeners who are sending in feedback and questions by email. Still encouraging people to leave voicemails as well, preferably that are relatively succinct and self-contained, if you can.

Dan: And we've gotten some good ones, but they ask really hard questions, and we need more in the way of softballs. We got a really good one that was asking us a hard question about Title Nine. And frankly, I just said, "Will, I'm going to get a whiff on that one. So, let's not do it."

Will: Yeah, more like, "Will, why are you always so reasonable and how do you do a podcast with somebody who's gone off the deep end?" That kind of thing.

Dan: So prickly. 314-649-3790.

Will: Thank you. Be sure to rate and review. And thanks to the Constitutional Law Institute for sponsoring all our endeavors.

Dan: And check our website for transcripts of the episodes, that's dividedargument.com. Check out store.dividedargument.com for merchandise. And until next time. In our next episode, I might crank it up to 90 on the aggress-o-meter. 

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