Divided Argument

Maoist Takeover

Episode Summary

We open Season 3 with a live show at William and Mary Law School, part of the Scalia-Ginsburg Collegiality Speaker Series. With our first-ever guest, we discuss the limits of friendship and offer advice on civil disagreement. But first we break down the Supreme Court's ruling on an important stay application from Yeshiva University.

Episode Notes

We open Season 3 with a live show at William and Mary Law School, part of the Scalia-Ginsburg Collegiality Speaker Series. With our first-ever guest, we discuss the limits of friendship and offer advice on civil disagreement. But first we break down the Supreme Court's ruling on an important stay application from Yeshiva University.

Episode Transcription

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

Dan: And I'm Dan Epps. Good job on that intro, Will. Sometimes when it's been a while since we've recorded, one of us whiffs on it and forgets what the adjectives are. So, you managed to pull that off.

Will: I was, in fact, sitting here going, "unscheduled, unpredictable?" "unpredictable, unscheduled?" which order?

Dan: Doesn't really matter. So, this is actually going to be our third live show ever, I think. We're at William & Mary Law School. We're here as a preview to an event known as the Supreme Court Preview, which is a very cool event that brings together a lot of academics and Supreme Court journalists to talk about the upcoming Supreme Court term. But we are previewing that preview. And you're going to hear a little bit more about that in a minute. We have a very special guest, the first guest on the show, we're not a guest show.

Will: Right. We have a rule against guests. 

Dan: Yeah, we're kind of anti-guest show, but we are waiving that rule today, which we're very excited about. But hold that thought, so you got to keep listening to figure who the guest is going to be. People in the room, you know who the guest is, obviously, but we're talking about people who are not here, if you didn't figure that out. And we're going to just do a little bit of catching up first before we transition. So, where to begin?

Will: We'll start with the leak? 

Dan: Well, I think we should break down some stuff on the show. So last time, we had a bit of a snafu. Right? 

Will: We have lots of snafus. [laughs] 

Dan: Yeah, but this was more of a technical snafu. So, you recorded in your office, and I think you forgot to-

Will: Turn on the mic.

Dan: -use the right microphone. 

Will: Yeah. 

Dan: And so, the episode got edited. And then, you called me up, you said, "There's something wrong, the episode sounds really bad." And I said, "It's fine. I'm busy." And we released it and got some negative feedback. 

Will: [laughs] 

Dan: And I actually just listened-- this was like six weeks ago, but I've been busy. I went to Disney World. You went somewhere, you were on a trip. So, we've been tied up. I finally just listened to it because I don't really like listening to the episodes for some reason, despite my narcissism, and it sounded really bad. Like really bad. I mean, you sounded really bad. I sounded great. 

Will: [laughs] Yeah. Was it a mistake to release it? 

Dan: No. We did--

Will: Well, if you'd been the one who sounded bad, would you have wanted to release it? 

Dan: I wouldn’t have let that happen. 

Will: [laughs] 

Dan: Fight the hypo, it's just not going to happen. I've got the equipment going. I'm a professional.

Will: Until recently, I've been recording these episodes from my house, from the office where I've been Zoom casting all the pandemic. And finally, I've moved all the recording equipment in my office to law school, because I'm spending more and more time there. And somehow in the course of setting it up in the law school, I forgot to plug it in, or some crucial step, I'm not sure.

Dan: We will get that fixed next time. I think despite this being a live show, this one is going to sound pretty good. We've got the art of recording live down to a science. So, we'll see. Give us the feedback. We get a lot of negative feedback about the audio quality despite I think the quality being pretty high. We also got all that feedback about us having the same voice, which I think was really inaccurate.

Will: We solved the problem by having my voice sound like it was--[crosstalk] 

Dan: Yeah, that was great. Maybe it was what I was doing. Okay, so that's enough navel-gazing. You said you wanted to talk about something sort of substantive, the leak. 

Will: Yeah. 

Dan: Do we know who the leaker is? There's the leak of the Dobbs opinion, gosh, what, almost six months ago? 

Will: Yeah.

Dan: Was it in April? Has the culprit been found? By the way a friend of mine on Twitter had DM'd me months ago and said, "I will buy you a drink if we don't know the identity of the leaker within three months," and that has not transpired. So, I'm owed a drink. But what's going on?

Will: We still don't know the identity of the leaker, but we learned one new tidbit. Justice Gorsuch was giving remarks at, I think, the 10th Circuit Judicial Conference, his old circuit, and apparently mentioned, according to the news reports, that there is a committee investigating the leak that is writing a report. Somebody asked him about the leak, and he said, "Well, there's a committee investigating the leak, and I'm still waiting for their report. And I'm going to read it." We don't know who's on the committee. We don't know if the report will be publicly available. Previously, we thought it was just Chief Justice Roberts and the Supreme Court Martial freelancing it in a bad legal procedural, but apparently, there's a committee. It's going to be asked to write a--

Dan: Yeah. I'm going to say this is not making me optimistic that there's going to be some exciting resolution. This thing is being buried in a committee, where they're going to go, go away, come back, write some document that says, "We're not sure." Don't you think? Don’t you think they knew who it was, we would have heard about that by now? A clerk got fired, hauled out of the building by the Supreme Court police, that would have trickled out.

Will: Yeah, I think that's right. You might have a committee if the person who did it is somebody's not in the court's jurisdiction. You might decide to do it by report. You discovered beyond doubt that it's Vladimir Putin and like a team of Russian hackers, like that'd be what you do or a spouse of Supreme Court Justice or anything sort of beyond the court's-- [crosstalk] 

Dan: The spouse of the Court's Justice, I think you would not have the committee, you would just say, "Forget about it. Let's--"

Will: I'm not sure. 


Will: If you had some Justices who were no longer willing to forget about it, it might be that you have to put it somewhere. The other reason to have a committee, I think, might be to exonerate people. So, I think committee might not be able to finger people, but they might be able to say we are pretty sure it's not the Breyer clerks, or somebody else who's been sort of like in the public eye, we've looked at all the electronic devices, we've polygraph them, whatever it is we're going to do, that won't defend--

Dan: Kind of a Warren Commission. There's no conspiracy, nothing to see here. 

Will: Yeah. 

Dan: The thing about the electronic devices is interesting, because it was reported that clerks were being ordered to hand over something connected to their phones, like phone records, there were some people speculating they were actually having to hand over their devices. It was never clear. I don't think I saw any clarification of that. There was no news follow-up on what happened with that, whether there was any pushback, what exactly they were being asked to do. What's your suspicion as to what happened there?

Will: Maybe that's when the committee got formed? Maybe that's the point at which enough the Justices were like, "All right, we've got to have some sort of collective-- this is serious, we can't just ignore it, but we can't just sort of have one person doing it." My guess would be people cooperated. My guess is that they were going to have a committee that says, "All the law clerks are incredibly honest and upstanding people who cooperated. And we're very confident none of them have ever done this. And whoever it is, it isn't a law clerk and Supreme Court law clerks are great." That sort of my guess--[crosstalk] 

Dan: If the report is publicly issued. It would be more transparent than normal for the court to write a internal report and release it.

Will: Yeah. Or it might get leaked.


Dan: There will be no more leaks.

Will: [laughs] 

Dan: Leaks are over.

Will: Maybe it's a test, actually. 

Dan: Yeah.

Will: They're going to write a slightly different version of the report. 

Dan: Oh, yeah, secret.

Will: Send it to everybody, and then see whose version--

Dan: And send it to the Justices' spouses as well.


Dan: We're filling the time with some news that's not really news. It's been the summer. Obviously, people know that there's not as much Supreme Court stuff happening over the summer. The Justices all go on summer vacation to places like Europe. I haven't heard where most of the Justices went. Justice Alito went-- where was he? Was he in Italy?

Will: He's in Rome. 

Dan: He was in Rome. Yeah. And he gave a speech that we should probably talk about at some point, but today's not the day because we've got other stuff on the agenda. But they go and they teach, I think they just get paid and get a nice apartment and show up to a class once in a while and kind of enjoy themselves wherever they happen to be. And famously, a lawyer named John Roberts criticized this practice, I think, when he was at the Department of Justice. He said, "Only schoolchildren and Supreme Court Justices are expected to and do take the summer off." Since then, he has not changed the practices and does seem to enjoy his-- he's got a gig where he goes off and teaches. He went to Malta one year. So, it's good to be a Supreme Court Justice, but stuff happens. Stuff happens on the shadow docket, the emergency docket, the whatever kind of docket, we're going to talk about the rocket dock in a second.

Will: You tried to call the--[crosstalk] 

Dan: The lightning dock. This is a little bit lightningy. So, we've got one thing to talk about, which is great because it keeps it a little bit easier. Tell us about the one thing.

Will: Yeshiva University v. YU Pride Alliance. This is a lawsuit currently pending in New York Trial Court, which New York, to be obstreperous, calls the New York Supreme Court. That's confusing everybody who has to deal with the New York court system.

Dan: And then there's also like an appellate division within the Supreme Court, and then it goes to the Court of Appeals. It makes no sense. 

Will: Okay. We'll just call it the Trial Court. In the New York Trial Court, the question is the applicability of New York's anti-discrimination law to Yeshiva University. So, Yeshiva University is a Jewish University in New York.

Dan: Our law listeners might be more familiar, Cardozo Law School. 

Will: Yes.

Dan: That's the law school is affiliated with Yeshiva.

Will: And the students in the undergraduate college want to have a pride organization, like virtually every other higher educational institution. And again, interestingly, like the law schools. Law school has pride organization for the law students, but the undergrads do not. And the President of University consulted with a bunch of the rabbis associated with the university and concluded that that the school could not allow this to be an official organization because it was not according to their understanding of Torah. The filings is very interesting. The filings are full of sort of quite, I think, sincere religious arguments on both sides, the school saying, "This is not what we think life according to Torah is." The students saying, "The very reason we need to have this because we have a different understanding of Torah." It's classically like Jewish Halakhah debate about like the meaning of how to understand the teachings of Torah in the 21st century.

Dan: Which really is something the courts should not be resolving. 

Will: Well, who should resolve it? 

Dan: Yeah.

Will: The New York legislature does have a statute saying no discrimination on the basis of various things including sexual orientation, which has applied to most organizations, would require them to recognize the LGBT organization if they recognize other kinds of organizations. And so that's sort of-- in a way, the straightforward statutory basis of the lawsuit is, "You're discriminating by not recognizing this group."

Dan: Didn't we have this case like 30 years ago with Boy Scouts v. Dale? Sort of, right? 

Will: That's 20 years ago.

Dan: Okay. 

Will: [laughs] 

Dan: I lose track. Was that before COVID or not?


Will: And before Trump. We did have a case about whether the Boy Scouts had to allow gay scout leaders, and the Supreme Court decided 5--

Dan: In the face of a public accommodation.

Will: In the face of the New Jersey law that said that they had to. And the Supreme Court decided 5-4 that the First Amendment exempted them, not on religious grounds, but on freedom of expressive association grounds, a freedom not explicitly contained in the First Amendment, but some amalgam of the freedom to peaceably assemble and the freedom to speak. It's a little different because there, I think, the Boy Scouts conceded that the law applied to like a rank-and-file scout. They weren't discriminating who could be in the scouts, but that the position of leader was sort of more akin to, I guess, whatever the government speech analog is or private-- That's a boy scout speech, [crosstalk] make you a leader.

Dan: So, that's sort of the same argument that we're going to see in this case.

Will: It's a cousin of the argument. I mean, it's a little different because the groups more obviously don't speak for-- the groups themselves don't speak for the university. They're not quite the same. Justice Kennedy was an Eagle Scout, there's a lot of stuff in--

Dan: This is going to be disputed in the case. Whether they're recognizing the group should constitute action, maybe not speech, but action by the university.

Will: Yeah. This is not a new problem. There's also a state law argument. As a matter of state law, the state law doesn't apply to religiously chartered corporations. But the actual corporate status of Yeshiva University, the entity, turns out to be very complicated. And that's what the State Trial Court has been wading into. How much is relevant and how much it's not is a little unclear. But even the university itself has basically struck a compromise where the graduate programs look pretty much like secular universities. I'm sure that the dean of Cardozo Law School would never let me say that, but it does not have nearly the same kind of religious pervasively sectarian character, but the college does. And that's an intentional decision and that's partly based on where people are at different stages and the way the graduate schools function. When you think about the corporation as a whole, that turns out to be very tricky. So, the state trial court is--

Dan: And that's not a Supreme Court, the US issue.

Will: You would think. Under a Supreme Court decision called Murdock v. Memphis, the Supreme Court doesn't have jurisdiction to reverse state courts on questions of state law. Now, there is a really interesting Law Review article arguing that was wrong, actually building off of the Dale case, arguing that in the Boy Scouts v. Dale case, what the Supreme Court should have done was just gone in and reinterpreted New Jersey law and said the Boy Scouts wanted New Jersey [unintelligible 00:12:45] law, written by everybody's favorite legal genius, Jonathan Mitchell. So, don't count that out as a possible legal theory of the case.

Dan: Who to remind people is the architect of the Texas Abortion Law, that created the civil causes of action, which is now moot, largely, because--

Will: Well, now the law is clearly constitutional.

Dan: Well, yeah, and now it's permissible to have criminal prohibitions. That law was designed to be a clever workaround in a world where the Supreme Court was still willing to uphold Roe v. Wade. And now, you don't need that kind of clever workaround.

Will: I think it's not moot, because as I understand it in Texas, the district attorneys have a lot of practical discretion, and not all of them are as hard charging as--

Dan: So, like in a blue county.

Will: In a blue county, and all of the clinics were located in the bluest counties. So, may not be totally moot depending on how that works out. 

Dan: But he has been described as a genius or an evil genius.

Will: Mocked him as a legal genius, I think, "Some legal genius designed this thing." We've got these state law issues. This is a state law case about state law issues, normally not the kind of thing we would ever get a chance to discuss on the podcast. But enter the Becket Fund.

Dan: An organization that is very effective at bringing cases including cases in the Supreme Court about religious liberty. Former employer of Senator from my state, Josh Hawley, who worked there, for better, for worse, for bad, but they're very, very, very good lawyers.

Will: The last time we had a live show at Chicago, we talked about another one of the cases about prisoners who wanted the rights to have last rites before they were executed, which the Becket Fund eventually won.

Dan: Which they won, yeah.

Will: They're back. So, they go to the first to the various state courts to say, "Look, the trial court is about to require us to recognize this LGBT group and that's fundamentally going to transform our understanding of our religious place. Stop them on First Amendment grounds." The appellate courts denied that comment, said, "No, we're not going to intervene in this proceeding, and we'll deal with it on appeal."

Dan: Right, it's not like everything has been resolved in the state court, in trial court.

Will: Yeah. We've not even completed the trial, essentially. But, what we do have is an injunction against Yeshiva University saying, "You don't have to recognize this group, and it is currently the application season for some groups." Application season is now over, and actually the timing might turn out to be really important, but we cannot worry about that. Then, they go to the Supreme Court and say, "Look, this is the first time an issue. The trial court's ruling is wrong. This is a good vehicle for overruling Employment Division v. Smith, a case about the Free Exercise Clause, you guys have always been interested in overruling, you could do it now. If you don't want to do that, it's a good vehicle for resolving a circuit split about the applicability of Smith," whether anti-discrimination laws, what kind of scrutiny they got into the Free Exercise Clause, if they have some exceptions, and not other exceptions, kind of classic problem the court has created for itself in the post Smith world, or you can just kind of say this by the Constitution, because we're an educational institution, a religious school, whatever, that's sort of many different permutations of the argument. They presented to the Supreme Court and asked for shadow docket intervention.

Dan: Let's try to figure out exactly what's going on. They asked for a stay, some kind of extraordinary relief from the court to stop the trial court from forcing them to recognize these student groups while the proceedings are still going on. 

Will: A stay pending appeal of the permanent injunction entered by the New York Supreme Court. [crosstalk] 

Dan: Pending appeal to the state intermediate appellate courts.

Will: And the US Supreme Court.

Dan: Yes, eventually, and the New York Court of Appeals, New York's highest court. And the stuff that I think is going to be interesting to talk about is that procedural stuff, because this case does not yet resolve the merits of any of these questions. What happened? So initially, Justice Sotomayor did issue a stay on her own, she's the circuit Justice for the Second Circuit.

Will: Right. First of all, these go into the circuit justice for the circuit, in this case, Justice Sotomayor. In the pre-internet days, that Justice often decided on their own what to do, because it's really annoying to try to call everybody in Rome, wherever they were-- [crosstalk] 

Dan: And sometimes would have like an oral argument in their chambers. I mean, it was very different.

Will: Nowadays, if the case is at all close, normally what they do is refer it to the court and get the court to decide the grant of the stay. Justice Sotomayor formally didn't do that at first. She just granted a stay for a couple of weeks, and I've lost track of time. 

Dan: Were you surprised by that? 

Will: A little. It's hard to know it's going on. You might do that if as it turns out, it's at least a close case, people are writing things and you want to give them time to write whatever they need to without feeling like they have to get it out. But it's a little bit surprising. Even more surprising what happens next. So, the university thinks maybe it's one or it's a good sign. Even Justice Sotomayor has granted this day, at least temporarily, let's see what's going to come. And then, yesterday--

Dan: Yeah, so the court issues an order opinion, a short opinion, but there's going to be a dissent, basically saying the application for stay pending appeal is denied, without prejudice to applicants against seeking relief from this court, if upon properly seeking expedited review and interim relief from New York courts, applicants received neither. So basically, they're saying, "Look, not now. Go try a little harder in the lower state courts. If that doesn't work, then come back and we'll think about it, but we're busy." And so, it's not signed. It's just sort of for the court, but we can narrow it down because we have a four Justice dissent from Justices Alito, Thomas, Gorsuch, and Barrett, who would have issued the stay. So, by process of elimination, we know that the three liberal Justices, including Justice Jackson, this has got to be one of the first kind of controversial thing she has been involved in, voted to deny, along with Chief Justice Roberts and Justice Kavanaugh, the two kind of conservatives who were seen as slightly closer to the middle of the court, maybe slightly more powerful for that reason. What do you make of this breakdown? And what do you make of what the court did here?

Will: I don't understand New York procedural law, and neither does the Supreme Court. So, I have no idea who's right about New York procedural law. But for that reason, I think what Supreme Court did is smart. The case has a quite compelling constitutional argument to the way the current court works. Even people who are not the most aggressive about the court's religious liberty jurisprudence, when you start hearing the nature of the Halakha dispute about Judaism and gay rights, it does seem the kind of thing that the state is supposed to stay out of. So, on the merits, I would not be surprised to see the university prevail eventually.

But the Supreme Court does not normally intervene in cases that have not even been resolved by the trial court. And especially it doesn't normally do that for state courts. There's actually like a whole complicated web of jurisdictional restrictions for the state courts. So, for federal courts, the US Supreme Court can reach in and grant what's called cert before judgment, as long as the trial courts resolve enough of the case, they can reach in and grab it, and they've done that recently. But they're not allowed to do that for state courts. For state courts, they have to wait until it's final in state courts.

Dan: Yeah. There's a normal set of things that happens where you seek a stay in a federal district court, then you go to the Court of Appeals. And if the Court of Appeals denies it, you can go seek relief in the US Supreme Court to get a stay or get a stay overturned, or get an injunction or any number of other things. But this is different.

Will: Well, it's hard to tell whether it's different. So, the petitioners have a story, in which they say, "Look, the trial court decided the case, finally. We asked the question of whether we should get stay, the question of whether should happen now--"

Dan: Finally, with respect to this question, because the case is not over. 

Will: But the question of, as of September 12, do we have to register the group? That question which will never be undone, the trial court has answered it, the court of the-- whatever, appeals courts with names that I can never get straight, have also answered it. They have said, "We have to." So, everybody in the New York court system got their chance to answer this question. Now, it's your turn. Just on the question of should there be a stay, it sort of seems like maybe it's final.

But maybe not. So, there's weird notation in the docket of the intermediate appellate court case that suggests that the documents are not properly filed. But that also suggests it doesn't matter. But it's unclear which of those two things is true. It's just like a well-known thing about appellate practice that New York appellate procedure is one of the most arcane forms of appellate procedure. Many states, intentionally model their appellate procedure on federal appellate procedure. So, a lot of the normal legal rules apply with a few quirks. New York is nothing like that. There are New York appellate lawyers who make a fortune because only they understand the weird dark arts of what has to be filed-


Will: No, seriously, this is good money.

Dan: Is it too late for me to get in on that?


Will: [unintelligible 00:21:38] the New York bar.

Dan: I don't like the CLE requirements. My advice to the audience, don't do any bar that has the CLE requirement.

Will: One of my mistakes. If you do do one with a CLE requirement, try to do one that does not have a professional responsibility CLE requirement, because regular CLE is super easy to get, like I can get CLE credit for doing this podcast, but-- [crosstalk] 

Dan: From listening to me.

Will: You get triple credit for teaching. But professional responsibility CLE credit is really hard to get. I have thought about writing a professional responsibility article, just so that I can get out of my CLE credit for couple of years.


Dan: By the way, have you joined the Supreme Court bar yet? This has been a long running thing on the show. 

Will: No.

Dan: Okay, one Sunday.

Will: I was going to file an amicus brief in a pending case that might have required me to join the Supreme Court bar, but I decided to instead just write an essay for The Atlantic. [crosstalk] 


Dan: That sounds easier. You don't have to do a table of authorities or any of that stuff.


Will: No [crosstalk] more straightforward. Who knows? Who knows whether the Supreme Court has jurisdiction over this or not.

Dan: I was reading this on my flight here and I was trying to puzzle this out. It's the kind of thing where I really feel I would have needed to sit down and spend about half a day thinking about it and take out the Stern and Gressman Supreme Court treatise just to figure out what was going on. And you teach fed courts, I think you're a little deeper in this. But just so I understand, do we think that if the state courts had said as a matter of state law, "You're not yet entitled to a state from us, because you didn't check the right boxes," that the Supreme Court would lack jurisdiction? Is that right? Or are we not sure about that?

Will: So, if they had said you're not entitled to stay, because you didn't check the right boxes, that is for state law reasons. State law requires mysterious box checking, and you didn't do that. Not because-- maybe even the state court says, "You have a very powerful argument. If you had only checked the right box, we would have ruled for you," then probably the Supreme Court lack jurisdiction, because that will be what's called an adequate and independent state ground.

Dan: What they'd be doing is they're reviewing the appellate court judgment, and so they would not have jurisdiction over that judgment, is that correct?

Will: That would be idea. Except there are exceptions. The Supreme Court sometimes says, first, they said, "When it's a ticky-tacky procedural requirement that it seems to us like the state court made up because they don't like you, we're not going to pay attention to that. We never heard of this requirement before, nobody can comply with it." Then later cases, they said, "Look, even if it's obviously a sincere ticky-tacky procedural requirement," not one they made up, and they apply to other people too, they like you just fine, they just love dumb procedure, then sometimes we'll skip over those two, because that's just dumb. So, it'll be a little questionable, depends on exactly what the filing problem is, and all that stuff, but it will be a real jurisdictional problem.

But if the state courts had instead said, "Look, we're not going to grant you extraordinary relief, because we, like the trial court, think your claim is wrong, and Employment Division v. Smith is still the law," then the Supreme Court would definitely have jurisdiction over this stay.

Dan: They could grant certs with respect to that judgment, that judgment of the highest court?

Will: There's both a statute authorizing Supreme Court stays the lower court decisions, and they could effectively, yeah, grant cert and review the stay judgment, [unintelligible [00:24:50] the federal law, should you get a stay? That would still be very unusual for someone to do that but still, it'd be--

Dan: Because it would be in an interlocutory posture? 

Will: Yeah. Normally, we'd call that a bad vehicle.

Dan: So, I remember this coming up when I was clerking about this issue of when the court has jurisdiction over interlocutory judgments and final judgment. I remember looking into it and thinking it was actually a little bit more complicated. There are these cases that say, "We don't have jurisdiction review interlocutory rulings," but then I think that they basically do, right?

Will: In the civil rights era, when it seemed like state supreme courts were messing with people, the Supreme Court invented a number of creative interpretations of its own finality requirement to decide, "Okay, well, it's not technically final, but it's obvious that the state court is not going to change its mind. So, we'll call it final," and things like that. So, that also muddies the water a little bit.

Dan: So, you said because there's enough uncertainty here, the appropriate thing to do was to deny.

Will: Yes. 

Dan: Or to not grant the stay? 

Will: Yes. 

Dan: Because it's better to err in favor of not interfering. Is that the rationale?

Will: This is ultimately a form of discretionary relief. The part of the question is, do we think your legal claim is correct? Do we think you're going to eventually win? But part of the question are these discretionary factors. You can win later. This case is going to be decided by the Supreme Court on the October, whatever, 2026 term when the Supreme Court finally overrules Employment Division v. Smith, we all know. Maybe 2025 if they get it done quickly. But the question is, do we need to do it now? And so, you need extra reasons to think you have to reach it now. And the--[crosstalk] 

Dan: [crosstalk] -likelihood to prevail on the merits. We think that one is easier.

Will: Yeah. The merits of the constitutional claim, yes. The merits of the jurisdictional claim--

Dan: Yes, you'd have to also believe that there was jurisdiction to review the judgment denying relief, which is weird.

Will: Right. We [crosstalk] discount that because we're not sure how likely that is.

Dan: And then, irreparable harm.

Will: Yeah. 

Dan: There's an argument here, there's an argument in the other direction.

Will: I think that too, the irreparable harm argument is more complicated. So, the kind of irreparable harm the court used to care about, and probably the statute requires it to care about, is not just about like, are your constitutional rights going to be violated for a while, and you'll never get back. Yeshiva University will never recover their understanding of the Torah or whatever. But part of the reason the court grants these days is to ensure that it doesn't lose jurisdiction over the case. So, the classic case would be an execution. If there are serious constitutional problems with somebody's conviction or sentence, we don't want the state to just kill you and then moot the case, for multiple reasons. From a human point of view, we might say, "Well, we really care about is the irreparable harm to the person." But the Supreme Court--

Dan: And you care about jurisdiction, and I care about the people.

Will: The Supreme Court cares about the jurisdiction.


Will: An additional problem is, we can always let somebody out of prison later, but we will lose jurisdiction over the case. And this doesn't have that property. It's not that the case is going to become harder for Yeshiva to appeal. 

Dan: Because there could be a permanent injunction and you could come back up and presumably they can continue? 

Will: Right. Unless-- I will say so, [unintelligible 00:28:11] we didn't allege this. I've heard this rumor that if it were true that a bunch of the rabbis associated seminary, the kind of backbone of the undergraduate program, were all going to quit over this, that's going to happen like now, and then maybe never come back because they'll go elsewhere, and the school will be permanently destroyed, that might really moot the case. Yeshiva didn't claim that it's going to happen, obvious reasons not to claim that’s going to happen, but that'll be a little closer. But irreparable harm is the point is it's murkier. Even if they're going to win on this case in a few years, I don't see why you have to get into it now.

Dan: But they already have four votes. And interestingly, in Justice Alito's dissent, he says, "At least four of us are likely to vote to grant certiorari, if Yeshiva's First Amendment arguments are rejected." So at least four, you only need four. So, he says--[crosstalk] 

Will: He's writing for four, so he could still be right about that. 

Dan: Yeah. And they all join that part. Nobody asked him to change it. "Get us the petition, we're ready to grant it. And Yeshiva would likely win if it's case came before us." So, a pretty bold statement about the expected right answer in this case before you've gotten real briefs on the merits. Does that bother you? The court to-- we should wrap this up soon, because we have more exciting things to do in this episode, but this one is interesting.

Will: This is part of the worry about the shadow docket things is these are big questions and again, the court will resolve them, but it is a little weird for the court to resolve them on some thin and carefully curated version of the record. 

Dan: Now having signed this, those four Justices may be less inclined to really reconsider when the case comes back up.

Will: That said, in this case, he seems clearly right. Yeshiva is likely going to win. That's still going to be true, and they'll look at it later. The other five could have said--

Dan: As a matter of legal realism or as a matter of doctrine?

Will: I mean, the Supreme Court will rule in their favor.

Dan: But you're saying as a predictive matter?

Will: Yeah. 

Dan: Yeah.

Will: In defense of the state, this is not an area where the Supreme Court obeys its own cases with a great deal of rigor. So, if you were just naively looking at the cases, you would think, "What's the problem here?" But that would be naive.

Dan: Okay. So, this will come back, presumably, quite soon, because they're going to go back to the state courts and see what happens. Maybe the state courts will get the message-

Will: Grant the stay?

Dan: -grant the stay, because they sort of see what's coming.

Will: And certainly, the Supreme Court has said, "We are likely to reverse you eventually," you might think now's the time to grant the stay. See, one other wrinkle here is that the deadline that really mattered in the papers was September 12th. September 12th is the last day to register a student organization, that was the day of irreparable harm. September 12th came and went under the single Justice Sotomayor's stay.

Dan: Can't they just change that date? I mean, it's a school. 


Dan: It's not like there's jurisdiction. There's no longer jurisdiction to register student organizations.

Will: But it might be nondiscriminatory to enforce the deadline. They said, "Look, the trial courts require us not to discriminate, but we have a nondiscriminatory rule, everyone had to file by the 12th. And before the 12th, we had a discriminatory rule that you couldn't file." I'm genuinely unclear on what they--

Dan: So, let everybody file a week later. It's not a big deal.

Will: Well, the trial court might try that. I'm just unclear this might have bought them a year or a semester, depending on how we handle that date. Or it might have bought them like six days. We'll find out next week. 

Dan: Yes, we will find out probably by the time we record another episode. Hopefully, we'll do one next week, or at least soon. We know we had a long hiatus. Things are picking back up. We're both back in the office. We're not going on vacation for a bit, at least I'm not. And so, we'll be back. But it's time to transition. We are joined by our first, who knows, maybe last guest, we have a very hard bar for guests. 


Dan: And we're joined by Professor Allie Orr Larsen, who teaches here at William & Mary, and who is the maestro of the preview. You're running the Supreme Court Preview, which is a very, very important event. I gave a brief description of that. You want to just talk a little bit about the preview before we do the thing that you invited us here to do?

Allison: Yeah. Of course. I just want to say welcome to Williamsburg. We're so happy that y'all are here. 

Dan: Don't you have to say Colonial Williamsburg? 

Allison: I might be, and I don't know where my tricorn hat is. It must be under the under the table.


Allison: And, yes, to the preview to the preview, which kicks off tomorrow. And we have journalists and federal judges and academics and advocates that come and talk about what happened last term, and what's coming up next. 

Dan: So, it's also like a review. 

Allison: Well, this year, it's a bit of a review. 

Dan: A lot happened.

Allison: Yeah, we have enough to review.

Dan: But there's also a lot that's going to happen.

Allison: It's preview review. It's both.

Dan: This is a [crosstalk] time. You also do a really cool thing every year, I think you still do this, where you have really good oral advocates for the court come and do a mock argument in a case that's coming up. Not the people who are actually going to argue that case, because that would kind of tip their hands, but you have other people. Who's doing that this year?

Allison: We are doing the Moore case, the independent state legislature case. And we've Luke McCloud and Morgan Ratner, who are going to be the advocates. And it's really a big job this year, because the briefing's not in. So, they're going to be some of the pioneers in making the arguments, at least at the US Supreme Court level, and I'm really excited of that. 

Dan: They're presumably spending a really long time prepping for an oral argument, and you're not paying them their hourly rate or anything.

Allison: We're going to get them some tricorn hats, yeah.


Dan: That's a big commitment. It's very, very cool thing to go see, if anyone in the audience is able to do that.

Allison: Tomorrow. That's right. But the reason I invited y'all to come in connection with the preview is because we started this speaker series last year called The Scalia-Ginsburg Collegiality Series. And it's named for those two jurists because of the friendship they famously shared. So, they had dinner together, and they went to the opera and there's a picture of them on the back of an elephant or something at the Supreme Court. 

Will: The elephant is not at the Supreme Court. The picture--

Allison: Oh, no, just the picture. Yeah, I missed that. I missed the elephant when I was there. So, that art or tradition of having a close friend across the aisle, so to speak, is a little bit of an endangered tradition. And y'all are a good example, I think, of two people who don't always see the law the same way but are nonetheless friends. And so, we wanted to talk a little bit in front of the students about how you do that. What we want to avoid are old lady platitudes, like, "Just treat everybody and be polite and friendly." We want to actually get concrete and talk about what's hard about it and steps you can take to maintain friendships with people that don't see the law the same way as you because it's getting to be a polarized legal community, and it's getting harder and harder to do that. So, that is why you are here. 

I have a couple questions that I was going to ask you. Don't worry, why are you friends is not the first question. [chuckles] And then, we were going to open it up. But I guess the first question is think back to law school, and people in this room are all in law school, are there any concrete steps or advice you would give to yourself as a law student for a way to preserve a collegial relationship with people who don't always see a lot the same way?

Dan: Do you mind if we just step back for one second?

Allison: Sure.

Dan: Which is I want to make sure we acknowledge at the beginning that collegiality is not necessarily something we always should maximize. There are going to be some hard choices sometimes where, let's say, there were times in recent years where there was stuff happening in the law that was really, really troubling, things like family separation. And I don't think just saying, "Well, we can all get along and be friends and go have a beer at the end of the day." I think there are situations where sometimes people need to think about, should I sever that friendship because the person is doing something that is so beyond the pale? So, we do have to be aware of that. And so, this is not necessarily something to be maximized. But it is something that I think a value that can be important and useful in many contexts.

Allison: Well, that actually was one of my questions. Do you have a personal line, and do you have to adjust it as you go? And how do you know, when you're at that point where it's not worth it anymore? The difference is too great. But that was my last question, you jumped right ahead to it. So, we can start with the easier one if you want. [laughs] 

Dan: I think we should save it. But I do think it was good to sort of flag that just so people don't--

Will: Well, I just have to say now, I think one of the tensest moments so far in the podcast is when we had this very argument about does there have to be a line? And I'm not convinced there has to be a line. And I'm not convinced that-- it depends on what the question is. Should you get the Nobel Peace Prize for participating in horrible abuses? No. We can have moral judgments. That's not obvious to me that we have to--

Dan: Should you still get to be invited over for dinner at your house?

Will: I don't have a line on who we have over for dinner at my house. Now, other members of my family do have enough lines that I I'm okay with.

Dan: Let's come back to that in a minute because I think that's a tough position to defend. We'll see. 

Will: [laughs] 

Dan: Let's answer the actual question.

Allison: And the first one, which is concrete steps for young lawyers, like those embarking upon this profession, to try to be faithful to their own convictions, but be able to engage in conversations with those who have different convictions.

Will: My autobiographical solution was just to take every offensive thought I had and post them all on the internet under my own name. I had a blog back in the days before social media was cool. And I made the early decision that I was not going to blog anonymously, because there was too much temptation then to say that-- I was going to pull out my own name. After law school, several of my mentors encouraged me to shut down the blog saying things like, "You will never get a Supreme Court clerkship or any clerkship if you have a blog like this. What are you doing, Will? Throwing your career way." And I didn't listen to them. 

The serious version of this, the thing that was liberating about that is, I think, often you can find yourself in-- instead of a lot of hypothetical conversations with yourself about, "Who can I be myself around?", or like, "What will happen if I say this in front of people?" One of the best ways through it is to just stop worrying about that and just try to be yourself around a bunch of people and just see what happens.

Dan: Yeah, but we are at a moment where what happens can be tough. What we see, I think, more--I've seen some of this in student culture where I teach is maybe an increased desire to cancel people, to push people out of the debate, because what they're saying people find objectionable. And I think that there's reasons to think that that is not great for both instrumental and non-instrumental reasons. So, instrumentally, I think if you're trying to become a lawyer and you're trying to be someone who can affect change in the real world, I do not think you are serving yourself well, to shout down people who see the world differently. Because as it turns out, the ideological breakdown of, say, law school does not look like the ideological breakdown of society. 

And however bad you think one of your peers' opinions might be, a lot of people out there in the country have opinions that you're going to think are worse. And you're going to have to deal with the fact that those people exist, those people have votes, those people are legislators, those people are executives, and those people are judges. And so, being able to acknowledge that and figure out, at least try to imagine how folks like that think is going to be strategically useful for you, even if you don't buy into non-instrumental arguments about how the marketplace of ideas and everything, but you should keep an open mind and stuff like that.

Will: Yeah. And even if you're quite cynical and quite a legal realist about it, you show up in court with your argument. If you've got a judge appointed by the other party, you probably don't want to just quit, like, "Oh, we're dealing with a Republican, I guess we'll just move to dismiss our complaint."

Dan: Or shout him down, where you shout the judge down. That's not going to work.

Will: Right.

Dan: And go on Twitter and be like, "Can you believe we got this judge?" 


Will: Right. "Your Honor, that's an offensive question," maybe occasionally do that. But, yeah, so I think it's a useful skill.

Dan: And I do think that this is a skill that conservatives in many universities have to develop that liberal students often don't, because when you are surrounded-- this wasn't me, but you were conservative, if it's fair to call you that, if you'll accept the label, in predominantly liberal educational institutions-- you are UChicago undergrad, which is maybe a little bit more-- I don't know what the student body breakdown is like, but it's considered sort of a little bit more conservative. Yale is a pretty liberal place. And in people similarly situated, you have to figure out how to exist in a space like that. And I tend to think that that probably makes you get better at making arguments and things like that. And it's a pressure that liberals maybe don't put themselves under or they don't experience.

Will: Yeah. I guess the one other sort of concrete tip, concrete advice that came out of that was the difference between tone and substance. So, I think you should be relentlessly civil and bend over backward generous in tone. And let your cohost call you names and make fun of you without bristling at it at all. And no doubt, without trying to return the favor, all the time be trying to elevate the tone and lower the temperature. But you can do that without giving up very much at all on substance. People sometimes put those two things together and that's main part of the culture problem we have now. Maybe you didn’t just get more leeway for people to actually listen to what you're saying if you do it-- Well, actually trying to like treat people--

Dan: I think some people are going to-- and I think this has to be true of something, are going to say, "Look, some things should not be the subject of rational debate. That isn't something we should just sit down and calmly have a Fed Soc debate, like, "The Fed Soc presents free Chick-fil-A, was slavery great or not? And let's talk about it." There are certain things that have to be off the table, and that we just say, "No, shut up." Right?

Will: You keep getting to that last question. 


Will: I think you can even politely and civilly talk about things being off the table. And the question of like, are things off the table, and the question of like, do we yell and throw things or whatever, even those can be a little separate. 

Dan: It's the content. [crosstalk] 

Will: You can civilly say, "There is no reasonable debate to be had whether slavery was a good thing. That is not a legitimate topic for debate. I'm not going to participate in the topic about the debate," I don't know, but not being uncivil about it.

Allison: Well, so this is a question I've heard a lot since being back at school. It's about whether a dialogue between people who disagree ever changes mind, ever changes somebody's mind? Is there value in it apart from just politeness and civility? Does it actually advance the ball in a legal argument? I was wondering if you could think of an example where your mind was changed in a dialogue with someone who disagreed with you, because I think that could give, I don't know, a little helpful illustration? Or maybe the answer is no. [laughs] 

Dan: The answer is definitely yes on a lot of things. I think it's going to depend a little bit on what we're talking about. We have a lot of discussions about legal issues. And I feel you changed my mind on smaller things all the time and helped me learn from things. But there are some really big, fundamental questions that I think it's harder to imagine you being able to shake my priors on. I think, Will, you are kind of an unusually open-minded person. That's one of the things I like about you. And so, you may have more examples of that, but it certainly has to be true, sometimes. And if it's not true ever, that suggests to me that maybe you are in an epistemic bubble, like you're surrounded by sort of things that are just reinforcing-- I think you used the phrase with me the other day, "flatter your preconceptions." And that maybe you need to step back and make sure that you are actually thinking about things and not just instantly tagging them depending on whether they help your side or not.

Will: Yeah, I think so. I think it's unrealistic to expect that these dialogues will produce that-- I mean, my colleague, David Strauss, says this every time we talk. He's hopeful that the longer he and I are friends, one day, I will stop being an originalist. And it's a sign of his respect for me that he continues to hope that. I think it's possible that one day, I will cease to have my fundamental view of the Constitution. That's the wrong kind of thing to expect from this. But a lot of stuff that matters is more like, yeah, so maybe you have your worldview, but you don't know how it applies to every scenario. And yet, we get fed laws of sort of partisan or tribal framings about every issue or every case. And so, Justice Scalia, one of the ways he used to use counter clerks [unintelligible 00:44:54] not that he's going to give up being a textualist, but what does being a textualist mean in every single statutory case is not obvious. 

Having people who don't have the same and political views as you, but are still textualist can be a really useful way to see, "Oh, okay, maybe this comes out-- maybe even I by my own lights should see this differently." I also think even just what do you pay attention to. So, it's tempting to pay attention to only the instances where people you like are doing good things and people you don't like or doing evil things, and that just further reinforces your view in the world that your friends are good, and your enemies are evil. And if you choose to spend time with somebody who thinks of things differently, you can't as easily escape like, "Oh, yeah, okay, that's really not Justice Thomas' finest hour. There's nothing good to be said about that," it's a real problem. And that can really filter into your broader worldview about how all these things work.

Will: This made me think about something. This maybe not directly responsive to the question, but it related to what we've been talking about, which is I do think doing what we're talking about is important, because, no matter what you're trying to do, it is important and useful to have a realistic conception of what other people, their interior lives look like. Because I think, related to what you just said, a lot of people do, imagine the people that they disagree with are cartoon villains, that they just are fundamentally evil. Maybe that's true of people you disagree with in some moral sense. It is not how those people see themselves. And so, if you're trying to even just predict what they're going to do, it might be useful to try to at least imagine why they are doing what they're doing with the ideological preconceptions they have. 

One thing that I thought was really interesting. Obviously, there was the intense controversy, then Judge Kavanaugh was nominated to the Supreme Court, and the allegations came out against him. And I talked to people on both sides of the aisle about that. And they each thought something interesting about the other side. So, the Democrats I talked to thought that all the Republicans believed it was true but didn't care. The Republicans I talked to all believed the Democrats believed it was false, and didn't care because it was useful for them politically. I think probably, both of those things are probably not true. Probably, I think a lot of Democrats believed it, a lot of Republicans didn't, and whatever-- I'm not taking a position on the issue, but in terms of figuring out why people are responding strategically, it might be useful to actually imagine why they think what they think and why they're doing what they're doing. So, we lost the thread of the question.


Allison: That’s okay, but I was going to pick up at cartoon villains. I think that's a good thread to keep going. So, do you ever feel that your likeminded friends think of you as a traitor for having a friend who's a cartoon villain? If that's the case, how do you respond? There's a pressure that comes with tribalism, or there's a pressure to just stay with your team. And if you're someone who wants to be open-minded and listen to those who disagree with you, you might face a reaction from members of your own tribe.

Dan: Yeah. I don't know if anybody's ever called me a traitor. I feel I surround myself-- I don't surround myself with hard ideological people. I do sometimes get friends pushing back on stuff that you say.

Will: [laughs] 

Dan: Or they said--

Will: But did they push back on you for not pushing back?

Dan: No, they maybe don't like the work that you're out there in the world doing, that they think you are carrying water for this other agenda. It's interesting, I do have gotten some pushback on from friends who I respect is the way in which-- someone said that this is a thing you do where you-- I say something or we talk about something and say something that seems to me very clearly true. And you say, "Well, maybe." And then you go do this elaborate argument for why that thing is false. But you're willing to do that for almost any proposition, including ones that I think some people find troubling to do that for.

Will: So, they find it troubling that I say 'maybe' that I-- [crosstalk]

Dan: No, you say maybe and then you do the--

Will: Yeah.

Dan: That you're always willing to see the counter argument. 

Will: Yeah. Not always, slavery was bad. 


Dan: But you would still invite an enslaver over for dinner?

Will: If there are any--

Allison: Don't answer that. 


Will: There is an asymmetry about this in the legal academy because of the feature you mentioned. Like conservative law professors just take for granted that this is the best we could hope for in a way that that's not as true on the other side of the aisle. I've definitely noticed in our show feedback-- as far as I can tell, the listenership is incredibly balanced as complaints on both sides and comments on both sides. But the Conservatives are much more willing to say publicly [crosstalk] and the Liberals send us both direct messages that are like, "Don't tell anybody, but I like the show."

Dan: It's always made me nervous-- I'm sure most people here know who Sean Hannity is. He's the blowhard Fox News guy. But before it was the Hannity Show, it was Hannity & Colmes. And Colmes was this guy they got from the Fox News basement. He looked like egghead. They picked him because he looked like weak and ineffectual. And his job was to go up there and lose arguments to Hannity. Until one day he died. I think Hannity killed him. 


Dan: And I'm worried about being Hannity, not being Colmes. 


Dan: I'd like to make the Hannity money. 

Will: [laughs] Big slip.

Dan: And so that makes me nervous when all these conservatives like, "Oh, it's a great show."

Will: I get this too. So, I have lots of students who are much more ideologically conservative than I am, or don't have the same view I do about what you should talk, who you should talk to, and what you should listen to. And they're nice to me because I'm their professor, and they have to be and they're afraid of what I would do to them. It'd be in the basement next to Colmes. 


Will: But they still will occasionally slip, they'll say things like, "When is Chicago going to hire a conservative professor?" And then--

Dan: Not counting-- they're saying, "You don’t count." 

Will: They'll be like, "Yeah, of course, we have you." 

Dan: You're a squish.

Will: A real conservative. Definitely, people say that.

Allison: That was a good question it turned out. I got good answers there. All right. I think we have to get to the 'draw the line' question before we ask for the students. And that is, do you engage with everybody? Or do you have a line? And this is back to your question, Dan, is collegiality always a good thing?

Dan: The answer has to be no, sometimes. And I want to push Will a little bit on this idea that you should always be buddies with everybody, no matter what they're doing. Let's say there's some kind of Maoist takeover, and I decide to move away from the center and really get in the good graces of the regime. And I write these memos about why it's okay, to summarily execute Fed Soc members. Are we still going to hang out if I'm doing that? 


Will: You want me to answer it?

Dan: Tell me.

Will: Yeah, it's up to you. [unintelligible [00:52:00] I do have a line. I mean, we would not do live shows, to be clear.


Dan: You would hang out from an undisclosed location.

Will: Several states away. I think we should try to judge each activity by its own standards.

Dan: It's like how well written was the summary execution memo--[crosstalk] 

Will: Are you a respectful podcast host? So, if you, in addition, interrupted me all the time, and couldn't have a good conversation going, then I would not want to have a conversation with you anymore. But if outside of the podcast on your own time, you're committing atrocities against Fed Soc members, I try not to let that come into the question of like, this activity. I think that's actually sort of one of the important things about like politeness and civil society, is trying to say like, "Look, when you're in the classroom being a student or a professor, I care about are you being a good student? Are you doing the reading? Are you speaking when you're supposed to? Are you part of the community?" If I see you outside of the classroom--

Dan: But we're not talking about the classroom, we're talking about life. We're talking about friends. It's not relevant to you whether-- your friends are doing things that are unspeakably evil. You'll be like, "Well, that's what you do in your day job."

Will: [chuckles] The deeper the friendship, the harder it is to say there is a sort of outside of the bounds of the friendship. The more you have the kind of friendship with somebody where you're sharing all the parts of your life, then the harder just imagine how you'd compartmentalize. But I certainly-- and you say unspeakably evil, it's really hard to know.

Dan: I gave you a pretty good hypo.

Will: I said I'd still be on your show.

Dan: We would keep doing the podcast?

Will: Only remotely.


Will: I think I don't think you would last very long. If you believe in summary executions, you probably wouldn't want to keep doing it.

Dan: I'm Hannity, and you're my Colmes.


Will: But I think that wouldn't really bother me.

Dan: I don't even know what to say to that. I think that's crazy. 

Will: Maybe the problem is hard to believe you're sincere. So, the act of writing memos saying you believe in summary executions for Fed Soc members, it's hard for me to believe that you're actually doing it. Maybe you're actually out there with the blood on your hands, maybe--[crosstalk]

Dan: Would that change things? First of all, I'm not sure that that should make a difference if I'm just sitting in my office writing these memos versus actually out there doing it. But yeah, aren't there actual evil things that could be out there, someone could be out there in the world doing that would make you say, "Look, I can't be friends with that person." That has to be--

Will: Obviously, if you did really evil things, I would think you're a terrible person. I do think you can be friends with people who are terrible people, just like you can--[crosstalk] 

Dan: Do you want to be? 

Will: No, I'd rather all my friends were good people. And I'd rather my friends didn't do terrible things. But sometimes you have relationships anyway. I also think we could have a podcast even if weren't friends wouldn't be as fun. 

Allison: What about like the good faith, bad faith line? If someone is arguing in bad faith, they're lying?

Dan: This one is really hard. We actually talked about this a lot on the show, and I don't think we've gotten to any resolution. I think maybe it relates back to that Kavanaugh thing I was saying, which is that I think we all think we're acting in good faith, and the other side is not acting in good faith. And I think there clearly have to be times when we are not acting in good faith and times when other people are not acting in good faith. But I think there's also a lot of times, people on the other side do genuinely believe that they're acting in good faith, maybe they're engaged in motivated reasoning. And so, it's really hard to know what to do there in terms of how to figure out whether people are acting in good faith, and whether you should assume that they are not or assume that they are. You're sort of an "assume that they are" person.

Will: Yeah, this is maybe related. It's like my resistance to drawing the lines that you're trying to push me towards is not just for fun, or because I like mass atrocities. Part of the worry is that we all draw lines in really different places. Especially as emotions go up, as temperatures go up, as stakes go up, the tendency to draw them different places gets stronger and you can end up in a situation where everybody says, "Well, of course, I would talk to anybody who disagreed with me if they are in good faith, but I can't find anybody who's in good faith, because they're all in bad faith." And then, they get mad in the same way, and the whole thing unravels. And so, part of how you avoid that, part how you keep society together is to try to exercise a little bit of a check in another direction. And so, yeah, maybe we could talk about how big should the check another direction be, but I worry a lot more about that.

Dan: I'm sure you would be willing to say sometimes you think people are not. There's people that you would assess, is this person an ideological hack. Every argument they make cuts in one political direction. And so, it's just not worth kind of engaging with them in that way.

Will: [unintelligible [00:56:33] follow. 

Dan: Maybe you want to try to disprove what they're saying. 

Will: But I think if their arguments are always really good, even if they're always in bad faith, it could still be really useful to engage with them, not to change their minds, but to sharpen your own mind, to change the minds of other people. Even then, great deal of difference. But, yeah, of course, there are tons of people who argue in bad faith. Bad faith may well be more common than good faith. I have no idea. But I don't think it helps the world to go around with that.

Allison: Can we open it up to some questions from the audience from our William & Mary law students here? Is anybody--

Dan: And if anybody wants to ask a question, come on down, and we can hand you a mic if you are willing.

Person: Thank you both so much for being here. I guess I'm curious because you both clerked at the court, and you both clerked for men who at times have been disliked by the left and disliked by the right for a variety of reasons. And you probably had to work with people who ideologically were very much in line with you, and then some who were very much not. How did those working relationships, since they were so much at the workplace in the professional legal setting, how did that work and how did you navigate those?

Dan: That's a great question. So, it worked very well my year. I clerked for Justice Kennedy, I had co-clerks, there were five of us because we had Justice O'Connor's clerk as well. There were a couple of my co-clerks who were liberal, a couple who were more conservative. We all got along super well, the clerks in the building got along super well. There were some of the kind of more conservative clerks who I didn't socialize with as much, mainly because they seem to kind of do their own thing. But mostly, that wasn't the case. But that was a term that was not super highly charged. We had a lot of interesting cases, but not a ton of really divisive cases. Citizens United was decided that term.


It was argued the previous term and sort of a lot of the internal court, machinations had already happened. And so, it was reargued in the fall, and everybody knew. Lot of people had already thrown down their-- positions on these things had been out there for years for some of the Justices. And it was a little bit on rails at that point. And so, it didn't feel like something-- It wasn't like a thing that everybody was fighting about until July 1st when we ended the clerkship. It was just a little bit different.

Whereas this past term, where the court did something really, really big, incredibly shocking, and affecting people's lives in very deep ways. I cannot imagine it was a fun time to be at the court.

Will: That's probably right. So, I clerked the term that Citizens United was argued, so all the Sturm und Drang Dan was alluding to happened on my watch, but similarly--

Dan: Because of you.

Will: No comment. Similarly, it was easy to get along. I think it's also a place where the court is helped by how small of a community it is and how people criticize the fact that so many of the clerks come from so few law schools, but that meant that I had friends and classmates in basically every chambers of the court who I'd worked with on the Law Review or whatever else, and so who we could even when our-- [crosstalk] 

Dan: Law Journal.

Will: Yeah, thanks, Dan. [chuckles] Even when our Justices were saying crazy things, we could say like, "Does Chief Justice really believe that? They don't really believe that, right? Really?" It was a version of the thing Dan was talking about. So, that was easy. I worry that's less true, but I don't know. I do think even just fact that that everybody has--

Dan: I think it must go in and out. Like the Bush v. Gore term was apparently pretty terrible. 

Will: Yeah. 

Dan: And a bunch of the clerks went and talked to-- I think it was a Vanity Fair article and it sounded like-- and the reason I think is you have a case like that where people don't know what's going to happen. And then, people feel like what the Justices are doing, the Justices, the majority are doing is really kind of lawless, or they're using their discretion in a way that's really inappropriate, and they get angry about it. Whereas there are other things where you're just like, "Well, they're going to do that. We knew that they're going to do that."

Will: Yeah, I was going to say, I guess I also think that, at least for me, having clerked for the Chief rather than for Justice Scalia or Justice Thomas probably like means that I understand better how Justices who are less, who are not only in the hardcore originalist wing of the court think and how they think in good faith and how all that works in a way that that probably makes me less inclined to just think they're all political squishes or whatever all the time.

Dan: Yeah. I do think I would like to take this moment to kind of give a tip of the hat to Justice Kennedy, because one of the things that made that clerkship experience really special for me was he really was open minded, and he really wanted to hear what we thought, and he really wanted us to sit around the table and five of us talk about the cases. And he was in charge, he was the boss. He had the commission from the Senate and all that, and the President, "But what do you think? Let's talk about it." And here I was 14 months after graduating from law school, it was just a very humbling and weird, but very cool experience. I learned a lot from that. Being willing to put yourself in a room like that where you have to argue with people who disagree with you, but also hear what those people have to say, I think was really, really powerful.

Will: The last thing I was going to say is that there's just a lot of work to do. I think that has itself a civilizing influence on everybody. In the sense of like, you've just got a lot of cert petitions to get through and a lot of opinions that have to get out, and everybody's in themselves, and you can't really talk to anybody about it outside of the court, leaks aside. Just in a way, there's just less time for drama, when you've actually got real important work to do.

Dan: You've got to turn your phone records over to the martial.

Will: That probably created unusual common cause on various sides too. We should talk about that.

Dan: Yeah.

Allison: And then sometimes the bread-and-butter cases, not the dramatic cases bond you. So, you can have a heated legal argument about an ERISA provision. And that--



Allison: But you're working on it together and then that goodwill carries over to when there be a more dramatic argument where your priors are more important. So anyway, something else to think about.

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Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring our endeavors. Thanks especially to all the listeners who have been writing in with feedback, corrections, suggestions, or just let us know that you're under the age of 65. Please remember to rate and review the show on iTunes or wherever you listen to it. We're still hoping to help people find the show.

Dan: And write us, pod@dividedargument.com. Leave a voicemail, 314-649-3790, and we just might play it on the show.

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