After some inevitable self-flagellation for our lengthy hiatus, we catch up on some recent news and debate SCOTUS ethics. We then talk about implications of the Harvard/UNC affirmative action case, revisit Mallory v. Norfolk Southern, and break down the latest case captioned "United States v. Texas."
After some inevitable self-flagellation for our lengthy hiatus, we catch up on some recent news and debate SCOTUS ethics. We then talk about implications of the Harvard/UNC affirmative action case, revisit Mallory v. Norfolk Southern, and break down the latest case captioned "United States v. Texas."
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I am Dan Epps, back from a poorly timed vacation, I would say.
Will: I think they're very well timed. I think this season, we've really come into our own. Just skipping out on most of June.
Dan: I think it does continue sort of the thing you said last time, which was the original plan for the podcast was like a June only podcast. So now it's a not June podcast, it's an every-other-month podcast.
Will: I mean look, as the discourse has changed, there was a time when I thought what the discourse most needs was sophisticated analysis of Supreme Court opinions as close as time to when they come out. And now, I do think some of what the discourse needs is the opposite of that. It needs people to rise above.
Dan: That's the best defense for the choices we made here. But the good news is as the Supreme Court is in a low fallow period and maybe some other commentators might go on vacation, I don't know. And we can try to clear the backlog a little bit with a little bit of time to reflect, maybe say stuff that's different than is out there in the discourse. I don't really follow the discourse. [crosstalk]
Will: This is one of the things I love about you, Dan, is I'll get outraged about something I read on Twitter or whatever and you won't even know what I'm talking about.
Dan: I used to be very online and I'm trying to be a little bit less online. And I feel what we do here is actually useful. I think, reading an interview or something, I tried to look for this and I can't find it now. Maybe I said this on the show already, but I read something about the guy who writes the graphic novels, the comic books, The Walking Dead, you know those that turned into the TV show?
Will: Vaguely.
Dan: Where he said that he refused to consume any other zombie media, like other books, movies, TV shows, comic books about zombies for fear that it would seep into his mind and distort the way that he came up with the stories. And I feel that's my approach, is I want to come up with what I think independently. Obviously, some of the stuff-- it's not like I never read Twitter. I do see some of it, but I try to not get super, super deep into the discourse about the opinions, what footnotes are people focusing on, and hopefully we end up with something different. Listeners will have to tell us.
We had an overwhelming task in front of us by looking at the, I don't know, 12 big opinions or something that came out since our last episode to try to figure out where to start, and I don't know if--
Will: Not to just record an eight-hour episode, which would have been interesting.
Dan: Yeah, I think that might have put-- our editors might have been unhappy with us, and you listeners might be unhappy with us. And instead, we're going to trickle out hopefully a steady stream of maybe not super, super long--[crosstalk]
Will: Don’t make promises, Dan.
Dan: Yeah, I said hopefully.
Will: Don’t make promises. [laughs]
Dan: I put in an adverb there and that's the plan. And so today may be a little bit longer than some of the ones that I'm hoping will come, but let's catch up on some things. There's so much that I don't really even know where to start. Some Supreme Court related news maybe a little bit, and then dig into a few opinions. Work for you, Will?
Will: Sure.
Dan: Okay. News, the Supreme Court ethics stories have continued. So, I think basically what happened was the ProPublica thing happened about Justice Thomas. And then every reporter in the world is realizing that this is the hot thing to write about and is trying to come up with stories about how the Justices are not being ethical. And I'd say some of these stories are landing and are not. In terms of one that I think is not, that does not hit the mark, we have the Justice Thomas Venmo scandal. Familiar with this one?
Will: Does Justice Thomas have Venmo?
Dan: Well, we don't have the answer to that question. Instead, what we have is, this is just for people, for the-- we've talked a lot about the average age of our listeners, and I know we do have a range, but we do have some older listeners who might not be millennials. I know that millennials aren't even the young generation anymore, but millennials really into Venmo. The default setting on Venmo is that it just makes your payments to your friends public to your other friends, which is really weird.
Will: I turned that off a long time ago.
Dan: Yeah, I turned that off immediately. I just think it's very, very strange and that I go on there and I can see Venmo payments from people I don't even know very well. Like Saul Levmore, I can see his Venmo payments. I don't know why. And did you know that your colleague?
Will: No.
Dan: I can see his Venmo. So, most people don't know to turn this off or they don't care. And I guess one of Justice Thomas', his chamber's aid for a couple of years, 2019 to 2021, I think his name is Rajan Vasisht. Sorry, I'm just going to not say that again. I apologize. Don't want to mangle that. Just to say his aid, they looked at his Venmo, which was public before reporters alerted it to him that it's not, that showed seven payments in November and December 2019 from lawyers who previously served as Thomas' legal clerks. The amount of the payments is not disclosed, but the purpose of each payment is listed as either Christmas party, Thomas Christmas party, CT Christmas party, or CT Xmas Party in an apparent reference to the Justice's initials. I'm quoting an article from the Guardian that broke this important story.
Will: What could these payments labeled Xmas party possibly be for?
Dan: Yeah. The next sentence of this article, which is just a freestanding sentence, paragraph, says, "However, it remains unclear what the funds were for." I'm going to guess that the funds were for a Christmas party. And maybe I'm a credulous fool. I think that's what was going on here. I think it was a Christmas party.
Will: It might have been an Xmas party.
Dan: Well, yeah. Three out of four say Christmas, and so I'm going to say that that's probably right. And there's this shadowy group, people that made the payments who are former Thomas' clerks like Patrick Strawbridge, who argued one of the Affirmative Action cases and so forth. And we're supposed to be very concerned about this, I guess. How much was money was this for? Was this for like tens of thousands of dollars?
Will: A follow-up, I think, from David Lat, who has an invaluable Substack on the Supreme Court, featured a statement suggesting the payments were for about 20 buck.
Dan: $20?
Will: Yeah.
Dan: So why did this need a whole story?
Will: The story didn't say how much money it was, maybe for a reason. For the context, for people who may not understand, why are people paying the chambers for a Christmas party?
Dan: I'm going to guess, and I've got some facts to back me up, that the Supreme Court does not have a budget for Christmas parties for individual Justices, and so people are contributing so that they can buy, I don't know, eggnog. I mean, $20 split up even per person does not seem like it's a very lavish party. The court does have an official Christmas party for the whole court, but there's all sorts of events like this. You've ever been to a clerk reunion?
Will: Been to a few.
Dan: Did you pay for it?
Will: Of course.
Dan: Yeah, right, because there's no budget for it for the court to pay for these. And instead, the expectation is, there's an invitation that goes out. It says the cost of attending the clerk reunion, which is going to have this fancy dinner catered at the court and whatever other stuff, is $200 a person. And you write a check, and you send it to whatever former clerk is handling it, and you go and have the reunion. Is that an ethics scandal? Are you unethical for having attended a clerk reunion?
Will: I don't think so. I guess I did see the follow-up argument that, okay, even if it's not about the money, this is a form of access. Here are former Thomas' clerks who are litigating before the court, who then also have access to the Justice at these exclusive events. Does that bother you?
Dan: That does not bother me. Look, some of the other Thomas stuff does bother me. We can talk about that in a second. But Justices, they're allowed to hang out with their former clerks. And maybe it would be inappropriate if the former clerks were saying, "Justice Thomas, why don't we hang out? I will fly you on the Consovoy McCarthy private jet-" I assume they don't have a private jet, "-to the Maldives dives and we'll talk about stuff." Okay, that seems different. $20 for Christmas party? I think that's absurd to be mad about this.
And then these things-- I'm now increasingly skeptical of these ethics experts because they got Richard Painter, the chief White House ethics lawyer in George W. Bush administration said, "It was not appropriate former Thomas's clerks who were established in private practice to, in effect, send money to the Supreme Court via Venmo." This is his quote. "There is no excuse for it. Thomas could invite them to his Christmas party, and he could attend Christmas parties as long as they are not discussing any cases. His Christmas party should not be paid for by lawyers. Federal government employee collecting money from lawyers for any reason, I don't see how that works."
I don't know. This just strikes me as an astoundingly ignorant comment for someone who's just maybe not familiar with how things work. Like in the Executive Branch, people, they have to pay for their own parties and stuff like that. I don't know whether they can bring in former lawyers. This was dumb. And this annoys me because it makes it harder for us to distinguish and to identify things that actually do seem troubling. I am troubled by Justices basically using their position as a way to get absurdly expensive luxury travel that they would never get but for their position as Supreme Court Justices. Okay, that bothers me.
Former clerks paying $20 for Christmas party? It doesn't bother me. It's not a problem. It doesn't remotely pass the smell test. And we need to distinguish. And so, reporters, if you're working on these stories, you need to pick and just because you feel clever that you found this Venmo thing, it's not a story. Let it go.
Will: You're a legal ethics expert, aren't you, Dan? You've written about court ethics a lot. Why don't they ever call you and ask you, is this a thing?
Dan: I don't know. That's a good question. It seems like it would have been helpful to maybe include that context about the clerk reunions. Every Justice, as far as I know, does something like that. I don't know they all have the funding works for all of them, but that's very normal. It's been going on for decades. I did one for Justice Kennedy, he hasn't had one in a long time, which is too bad. If that's a scandal, this Venmo thing is way less of a scandal. Okay, so that one annoyed me. Do you have any pushback on that?
Will: No, I agree. That’s fine.
Dan: You don't really believe in the notion that there are Supreme Court ethics or everything they do is ethical because they're Supreme Court Justices, right?
Will: No, it's more like that moment everybody has where you read a story in The New York Times about something you really understand, and you realize how much they mess up all the details and don't really understand what's going on. And then, you need that moment, you're like, "Wait a minute. But all those stories about areas that I don't understand as well, those are good." And I just have the same reaction. Like, I'm glad that this story has caused you to be suspicious of the lack of judgment and scrutiny the press exercises in Supreme Court scandals.
Dan: You're saying that as if it's never occurred to me that reporters can be wrong about something.
Will: No, I'm just saying I'm hoping you'll start connecting the dots.
Dan: The dots are connected in my mind. I can evaluate this stuff on my own. Look, I'm a Supreme Court expert. I read all sorts of stuff in the media about the court that I can tell that they're getting wrong. This is not a new phenomenon for me. That doesn't mean that the other ethics stories are not-- I can evaluate the facts and decide that there is something troubling about them.
Will: I'm not really picking on you. I'm picking on--
Dan: You're trying to. It's just not connecting.
Will: I'd like to pick on a softer target, Dan.
Dan: Okay, well, let's pick on a different Justice. And this one does bother me. Let me see if it bothers you. Justice Sotomayor is a noted author. She has her memoir called My Beloved World, and she has some successful children's books. She does speaking events all over the country, and they are often connected to one or more of her books. And what we've learned is that when those happen, her staff has been involved in extensive negotiations with the hosts of these events. I think fairly characterized as pushing them to order books and to order lots of books for these events, and her staff is involved in getting her to sign the books. So, for example, in one instance, Michigan State University spent $110,000 for 11,000 copies of the memoir, My Beloved World, so it's $10 a book. Pretty good bulk discount.
Will: Yeah, [laughs] it's actually pretty cheap.
Dan: Yeah. Look, [chuckles] if you're buying 11,000, I hope you get like 50% off at least. To distribute to first year students, and then in this process, all the books, 11,004 apparently, were shipped to the court where they were signed purportedly by Justice Sotomayor. Do you think she actually signed 11,000 books?
Will: I do not think that.
Dan: What do you think happened?
Will: I don't know. I assume that the Justices have either a trusted sort of person who signs on their behalf or I guess more likely some autopen.
Dan: Is that an independent scandal? Is that fraud? Signing a book and the author is not actually signing it?
Will: Well, so there's an OLC opinion about autopens from the Bush II administration, like 2007, that says that signing legislation via autopen counts as signing it in the meaning pf the Constitution. So, I assume if the Justices are using an autopen--
Dan: That's a totally different question.
Will: I mean, we might think the Justices are entitled to abide by the constitutional standard. Now, my memory of the OLC opinion, which I haven't reread in a while, actually, is that it does distinguish between live use of the autopen and recorded use of the autopen, and it only holds that live contemporaneous use of the autopen counts and reserves the--[crosstalk]
Dan: Like you're signing simultaneously. It's signing multiple things or something like that.
Will: Or you're in Japan, but the enrolled bill is in Washington DC. And so, you're signing it using the remote control in Japan. So, I don't know. Maybe.
Dan: So, I do have some independent evidence I can bring to bear on this in a second. It's going to be interesting, but let's talk about the other aspects of this, and then I'll circle back to my own, what I've got waiting in the wings. In general though, she does all these events and her staff-- this is her Supreme Court staff. This is not her private staff paid for out of her $3.7 million she's earned from her books in recent years. They have these emails. They say, "Oh, you haven't ordered enough books. Can you order enough books?" I guess she has these autographed lines where to get in line and meet her, you have to buy a book. That also bothers me. That seems a little bit weird. Basically, she's selling access via the books. And so, the whole thing bothers me, that she's going on these speaking trips that are apparently somewhat lucrative. I don't know, of the $110,000 she got from Michigan State, that's obviously the biggest.
Will: Wait, she did not get $110,000.
Dan: Let me finish the sentence.
Will: Sorry.
Dan: Of that $110,000, I don't know what percentage goes to her. But not zero. Maybe it's half, maybe it's a third. I think it depends on her contract with--
Will: The standard contract would be like 20% or something. Is that--?
Dan: I have no idea. I've never written a book. You've written case books. But I think that's a totally different--
Will: I never had--
[crosstalk]
Will: Nobody's ever bought 110,000 copies of our case book.
Dan: Yeah. Your memoir, you're going to have to wait a little bit, Will Baude: My Despised World.
Will: [laughs] I love the world.
Dan: That's our episode title. That bothers me, also bothers me that the staff is involved. Also, what percentage of staff time is involved in moving around 11,000 books and getting them signed. Maybe they're signed by the autopen, maybe they're just signed by the staff. I don't know.
Will: The books could well be moved by the publisher.
Dan: They're sent to the court, and someone at the court presumably is opening the boxes, doing something to affix the signatures. This is a story in the AP, and the AP story says that Penguin House, her publisher, emailed the court staff saying, "We're sending you the books."
Will: Yeah, fair enough. I think I raised this in one of our earlier ethics discussions, and I don't think it's a great look. It's also partly, this is just financially the biggest loophole, I think, that exists.
Dan: Getting the book payments, yeah.
Will: Justices can't get paid more than $30,000 a year for teaching. They can't do other kinds of outside consulting. There's a limit to how many private jets you can ride on, even if that's a loophole. But there's no limit to the number of books you can sell and probably no rules about what your royalty payment could be.
Dan: Yeah, not to my knowledge that there's no caps on that. That's a separate-- so that you could be bothered by that or not. But even if that's okay, you could also say, "Well, they shouldn't be allowed to use government resources to fund those efforts."
Will: So, did you see this response from the court?
Dan: Tell me about that.
Will: Okay, so there's another story that has a document that purports to be a statement from the-- sort of a response from the court that-- it lays out partial responses. So, it says, "Justice Sotomayor's judicial assistant has worked with the Justice's publisher to ensure compliance with our ethical standards. Judicial ethics guidance suggests that a judge may sign copies of his or her work, which may also be available for sale, but that there should be no requirement or suggestion that attendees are required to purchase books in order to attend. Asking whether attendees were reminded that they must either buy or bring a book in order to enter a signing line at an event would not conflict the standard outlined above."
I take it the point is you can attend the talk without buying a book, and you can even get the book signed without buying one if you somehow got it out of a dumpster or something. "Chamber staff also play an important official role in protecting the Justices who are high profile public figures." And so, the staff has to come because she's doing an event, and, "They will put colleges or universities in touch with the Justice's publisher when asked to do so."
Dan: I don't find this super satisfying. Do you find it satisfying?
Will: Hmm, a little. Look, I do think it's good to know there are lines and they are paying attention to the lines now. They think the line is, you can show up at a book signing and hawk your book as long as technically you're allowed to attend the signing. Attend the signing, but not get anything signed without a book. I do think it's weird, like when the Justices go do any kind of public event, I understand why their staff travels with them. We don't really want them just wandering around unsupervised.
Dan: This doesn't respond to my other concern about use of staff to handle the book flow, right?
Will: Yeah, that's true. I would feel better about the book flow if Justice Sotomayor had to fly to Penguin Random House's office and sit there for, let's see, 11,000 signatures. Imagine three signatures a minute. Imagine six signatures a minute.
Dan: You can do way more than three signatures a minute. Doesn't take 20 seconds to sign something.
Will: Oh, we got to open the book, get to the page.
Dan: The publisher staff would get them teed up. They would be like handing--[crosstalk]
Will: How many could you do?
Dan: I could probably do 15 a minute is my guess.
Will: 15 a minute. So, call that 1000 minutes.
Dan: It's still a lot.
Will: That's a lot of minutes.
Dan: Yeah. That bothers me. It bothers me actually, multiple different ways because staff is doing it. That seems like an inappropriate use of government resources for private financial gain. If she's doing it, it really not a good use of Supreme Court Justice time to be signing 11,000 books. It strikes me that seems bad. So, I don't know. I guess this is a separate category of ethics issue than I see as the Thomas thing, which I'm also bothered by [unintelligible 00:22:05] instead of bothered by. I don't think Supreme Court Justices should be getting highly lucrative gifts that they are only getting because they're Supreme Court Justices. And I genuinely don't believe Justice Thomas would be getting invited to fly on private jets all over the world and getting these high price vacations if he were not a Supreme Court Justice. I don't believe that.
Will: And do you believe Justice Sotomayor would be getting these book sales if she were not a Justice?
Dan: No, I don't believe that either, but I'm saying these are both bad, believe it or not. I'm saying that the liberal Justice did something bad, but it's a separate-- versus using government resources rather than just like trading on your name. I don't even know. They both bother me.
Will: Right. Sotomayor is both. It's both using the government resources and trading on her name.
Dan: Yeah, but so, as I said, I have some information about this, and I have in my office two copies of My Beloved World that are signed.
Will: Really?
Dan: Neither of which I purchased. Justice Sotomayor did an event at my university last year. It was a very successful event. Nothing that happened while she was here struck me as ethically questionable in any way. It was really nice to get to meet her.
Will: She didn't even make you buy the book?
Dan: Well, I think the school bought me the book. I found these books, and I think at least one of them came from the school. I think maybe both of them got given to me because I assumed the school had bought a bunch and we had some extra. They're both signed. One of them is signed in the book itself. The other one is signed in a little book plate that's been pasted into the book. I don't think the signatures are from the same person. They have certain resemblance to each other, but they're also different. So, they follow the same general arc. But the S's one of them are in classic cursive S, and the S's on the other are sort of more of a script S.
Will: Which one does that cut? I guess it can't be the autopen if they're different.
Dan: Well, that makes me think that the staff is just signing them at least. I don't know. Maybe one of these is legit and the other is not, I don't know. Maybe they're both working off some-
Will: Template?
Dan: -original.
Will: We should commission a handwriting expert to look into this.
Dan: Does your center have a budget for this?
Will: [laughs] We can get a paper out of this, I think. Make this a [unintelligible [00:24:27] project.
Dan: That's actually pretty interesting. Can we get our empirical friends involved in this?
Will: I don't think they do handwriting [laughs], Dan. We should get those experts that-- when Seth Barrett Tillman got involved in that dispute about the authenticity of Alexander Hamilton's signature on various documents relating to emoluments, he commissioned a bunch of experts. We should look into this.
Dan: So, you don't have to take my word for it though. If you google Sonia Sotomayor's signature and go to Google Images, you actually will see a bunch of examples from her books. Why don't you take a look right now, Will? And you're going to see both types. You're going to see the cursive s and the script S.
Will: I see.
Dan: Do you see them?
Will: Yeah.
Dan: What do you think?
Will: Interesting.
Dan: They're different, right?
Will: I mean, a little. Those look like they could be the same person to me.
Dan: They look to me-- Yeah. Maybe. I don't know. Look at some of these. Some of these are pretty different. All right, listeners, check it out yourself. Okay. But lingered on this for a while, I still think the Thomas stuff is bad. You think everything is good?
Will: I don’t think it's all good. Let me say one thing. I do wish we had more available judgments or consequences than like, this is all fine, and this is terrible, the Justices should resign, and the court doesn't [unintelligible 00:26:00] no respect. You're in the middle camp, but I feel like--
Dan: What? I'm in the what? Which camp?
Will: This middle camp, it's neither one of those. But I feel I'm often asked some version of the question, like, "Don't you think Justice Thomas needs to be impeached tomorrow for the ProPublica stuff?" And I wish there was some way, some of it reflects failure to comply with the rules, some of it reflects things that need to change. But that doesn't necessarily mean that the Justices need to be impeached either. But if somehow if you think that the Justices don't need to be impeached, you're accused of thinking that everything is totally fine.
Dan: Yeah. Although look, on the show every time try to pin why the Justice Thomas thing is troubling? Well, is it also troubling that they give a speech once in a while? Well, it's not quite the same. You soft pedal this stuff a little bit more than--
Will: I was just trying to put it in context. Now that we're talking about the books, I'm happy.
Dan: Now that we're talking about a liberal Justice.
Will: Yeah. Well, and wait until we get to the other Sotomayor stuff?
Dan: Which stuff?
Will: We'll wait until the AP breaks it.
Dan: Maybe the Supreme Court ethics stories have run out, maybe there's more good stuff. Let's let the Venmo thing go. It's one of those things where it's frustrating where there is something that's a real story and then other journalists are trying to get in on it, and then it ends up making it hard to distinguish the signal from the noise when you bring in this other stuff. I think if you can be troubled by former clerks paying $20 to buy the Safeway brand eggnog or whatever for the Christmas party, there's something wrong with you. The other stuff, private jet, I don't like it. Not good. Making millions from books, at least if you're using court staff, don't love that either. Other court news?
Will: Let's talk about some opinions, Dan.
Dan: Okay, right. Maybe one we should spend-- I think I'm going to spend less time talking about this one because this is the one that's gotten, I'd say, by far the most attention. Is that fair? And that is Students for Fair Admissions v. President & Fellows of Harvard College. This is the affirmative action decision. Is that fair that this has gotten maybe, like maybe even an order of magnitude more coverage than the rest of what the Supreme Court has done recently combined?
Will: I think that's right although it may also reflect the circles we run in. This is the one that hits the closest to home, people who work in colleges and universities.
Dan: That's fair. But just looking at like CNN--
Will: You told me you didn't watch that stuff, Dan.
Dan: No, I check the website once in a while. I don't have cable.
Will: Who does? Yeah. Anyway, no, I think this is a major decision. Didn't it say exactly what we predicted would say?
Dan: I'd say so, in the sense that you have the conservatives hanging together. I think it's a fairly predictable result that Chief Justice Roberts writes an opinion saying affirmative action is unconstitutional and then also that means, it's illegal for private institutions under federal statutory law which incorporates the same standard. I think we all knew Chief Justice Roberts's views on these questions because it seems like an issue he cares about, he's written about in Parents Involved, the busing case from, I don't know, 15 years ago.
Will: They were busing them, were they?
Dan: Well, no, it was not busing but it was like assignment to school districts. Assignment to schools based on race. It was a reverse discrimination issue. But he's a colorblindness guy. He thinks that for the most part, at least maybe subject to some narrow exceptions, use of race by government to distribute stuff, assign people to boxes, to benefits and burdens and so forth is unconstitutional. And so, he writes an opinion saying that, saying, "You can't do this." It is an opinion that does not claim itself to be overruling precedent.
Will: Mm-hmm. That was interesting.
Dan: Yeah. And so, the court had, in a case called Bakke from 1978, and then in subsequent case, Grutter and Gratz had sort of reaffirmed this idea that universities, schools may look to race and admissions for one purpose, the purpose being maintaining diversity of the student body because diversity has these unquantifiable benefits. You can't use quotas, but you can do a holistic assessment where you look at race, look at other stuff, and you care about diversity. So, those opinions said that. This opinion says you can't do that. Right?
Will: Well, it doesn't actually say doctrinally the most straightforward thing for the court to say would be to say race has always been subject to strict scrutiny. We used to say that diversity was a compelling interest that could justify the use of race and it has always been this odd compelling interest and now it's not. That would involve overruling Grutter and Fisher, and the court doesn't do that. It doesn't say you can never pursue diversity. Instead, it says that the use of race must be limited, must never be negative and it must come to an end. And these programs, frankly, like the programs in Grutter and Fisher don't satisfy that test. So, doctrinally, it leaves a tiny bit of wiggle room that you could come back and say, "Oh, no, we've really engaged in a limited reasonable different one."
I don't know that there's anything realistically in that category other than maybe there's this footnote where the court says, "We're not sure what to do with the military service academies," which is a sort of weird footnote when you read in the opinion but is there because the SG, Elizabeth Prelogar, basically begged the court to put that footnote in the opinion. She kept saying, "You shouldn't do this because what about service academies?" And then, somebody, I think it was the Chief said, "Well, if you lose, should we say that the service academies can't engage in affirmative action?" And she said, "Well, no, you should reserve that question." [chuckles] Which is the right thing for the SG to say, but I'll be interested to see if anybody-- I assume somebody will file that lawsuit, and I don't know what they'll say.
Dan: Yeah. Look, it doesn't conclusively say never diversity, but it then sort of says, looking at diversity, the specific benefits of it are too gauzy to be subject to judicial review. So, I mean is your idea that maybe someone could come in and say, "Actually, there is this other diversity benefit that--" [crosstalk]
Will: Maybe the service academies can say, "We have specific evidence from our military experience to which you owe special deference," military deference, not academic deference, "that when all of the people giving the orders are white and all the people getting shot are black, that destroys military effectiveness."
Dan: Yeah. My understanding is there's some historical reasons to believe that. Like in Vietnam War, there was that big divide and there was a big loss of trust between the enlisted men and the officers. And actually, in some cases, resulted in enlisted men, like killing their officers to prevent them from making the march into the jungle and get shot. [crosstalk]
Will: The court may be taking that possibility. That's the kind of thing you could try to prove then.
Dan: Yeah.
Will: Can I ask you two slightly different questions about this opinion?
Dan: No, you can. You always frame it as, "Can I ask you the questions?" And I'm always going to say, "Yes, you can ask the questions." So, ask the questions.
Will: All right. Question one is, do you think universities now have to pay a bunch of damages? After Janus, that was the case about unions collecting fees from nonmembers, but the court said they can't do that. After that, a legal genius named Jonathan Mitchell, some other lawyers brought a bunch of lawsuits against unions trying to get back-- in the statute of limitations, like three years of unlawful collected fees. And they generally lost in the lower courts, and the Supreme Court never ended up taking up that issue. The lower courts ended up saying, "Look, when you were relying on a Supreme Court precedent and Supreme Court precedent has since been overruled, you can't be sued for damages in the meantime." Since here the court didn't overrule Grutter or didn't purport to, do you think that means that the universities could potentially be sued, that everybody a class action to get your application feedback or something like that?
Dan: I don’t think so. Do you think that the court, even if it says we're not formally overruling, don't you think the Justices would acknowledge this is changing the landscape from where it was five years ago, or at least indicating something? So, Grutter does have this language about from Justice O'Connor sort of saying, "Well, we hope it's been 25 years since Bakke. We hope this won't be necessary in 25 years." And there's a debate in the case about, is that actually an expiration date? That's like a binding part of the opinion, is it not? But you could say, "Look, now this is the court saying time's up." So, I am skeptical that's going to end up happening, that we're going to have bazillions of dollars. And also then, if you're suing a public university, would it be like a 1983 suit subject to qualified immunity?
Will: Well, universities won't have qualified immunity because [crosstalk] individuals.
Dan: Because they're [crosstalk] entities, yeah.
Will: Yeah, some of them have sovereign immunity, so you wouldn't really get the [unintelligible 00:36:13] from them. But private universities, you might have a cause of action for damages under Title VI.
Dan: Yeah. I don't know how it would work legally. I'm just going to say my instinct is that that will not happen.
Will: I have the same legal realist instinct. I'm not sure I understand quite how to get there, but not trying to, but--[crosstalk]
Dan: Yeah, they'll get there.
Will: Okay, one other.
Dan: Okay, second question.
Will: There's this funny back and forth between Justice Sotomayor and the majority about the use of race in the context of criminal law. Justice Sotomayor says, "Look, we allow people to use race when it burdens the minority populations," and cites a couple of Fourth Amendment cases where the claim is that people were being stopped and part of the basis was their race. And the majority says, "Wow, those cases don't involve the Equal Protection Clause. Those were criminal cases." So, what is your understanding of the law for the use of race in, say, identifying and apprehending a criminal suspect? If the police say, "There was a robbery and we're looking for somebody a number one male in a gray sweatshirt." I think number one male might be code for an African American male. Is that okay? Is that not okay?
Dan: The answer is probably it's complicated. So, there's this case, Whren, W-H-R-E-N, Whren v. United States. I'm sure you're familiar with this one, which is about pretextual stops. And there, the court says if they're stopping you for violating the traffic laws, but they're actually trying to stop you because they think you're a drug dealer, that's not a Fourth Amendment problem. That's not a Fourth Amendment problem at all. They're allowed to do that. It doesn't say that they can do it on the basis of race, but it says that if they do it pretextually, it's not a Fourth Amendment problem.
Will: Right. And it even says that stopping people on the basis of race would violate the Equal Protection Clause, potentially.
Dan: We, of course, agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. So, selective enforcement based on race, I think, would violate the Equal Protection Clause. There's another case called Armstrong where the court acknowledges that if the government is choosing to prosecute people on the basis of race, that's unconstitutional. That has to be right.
Will: Right. That seems like the worst case that people envision is, like the race is just being used as a stereotype. "You're a person of color, you must be a drug dealer."
Dan: Or not even a stereotype, they're just choosing who they want to punish.
Will: Right.
Dan: That's the worst, right?
Will: Yeah, you're right. But what about the case where there is specific-- where somebody says, "Two minutes ago, something was stolen out of my car by an African American man wearing a gray sweatshirt," and the police say, "Ah, let's look for an African American man wearing a gray sweatshirt." They're using race there too.
Dan: Right. And that has to be okay, right?
Will: Does it?
Dan: I think so. Like, if they say a man is running from the scene, are they then required to stop women too?
Will: Ah, sex is different from race.
Dan: Still would raise concerns, right?
Will: Okay. I thought that would be your reaction, and maybe it does not have to be right. But I started to wonder just in the sense of there are lots of different attributes people have that we could use to identify them. And obviously the gray sweatshirt is one, but there's also height and facial structure and glasses and who knows, what shoes was he wearing? And do we have some scrutiny for why and when the state chooses to use race rather than shoes as the way to identify people?
Dan: I think that there's a way to draw the line, and I have it in my head, but I'm not sure I can turn it into words, which is like, are they stopping the person because of race qua race, or are they stopping the person identifying the person just based on the appearance that connects them to. I can't quite--
Will: Yeah. So, you're saying if they're just saying, "Look, this looked like the guy." And of course, race can include an aspect of how people look. Maybe that's different than if they put on an APB saying, "Round up all the black men in the neighborhood."
Dan: Yeah. The larger question you're asking is, if you take this seriously, does that mean the government has to pretend that race doesn't exist all the time and can't ever think about it or talk about it or anything like that? The opinion does not go that far because there is this language at the end of the majority that suggests that admissions officers at colleges, universities, can still think about candidates' race, but only in a very individualized way. This is something that came up at oral argument, this is a question that came up, which is like, "Oh, are you saying that applicants can talk about anything at all, but they're not allowed to talk about their race?" That doesn't make any sense. This is something some of the liberal Justices were asking. And the court's response is, "No, they can write an essay about how they themselves struggled because of their race." Like, "I personally overcame racial discrimination," or, "My heritage or culture motivated me to assume a leadership role or attain a particular goal." So, it's something about you, you can still talk about that so that it's not like the admissions officers-- this doesn't require blinding, literally like blinding all the admissions officers so they can't figure out a way to even know anything about the person's race. So, it's not the case the government has to be totally ignorant, but it has to be used in a very specific way because it tells us something about that individual.
Will: Right. I interpreted that to mean, you can't just stereotype. You can't just think, "Oh, this applicant is a person of color, so they must have faced discrimination." You need to actually have some story about them, particularly. And I took that to mean that maybe you can't even necessarily just only privilege certain kinds of grit or determination or leadership role. Like, the student who was motivated by their African American heritage to take on a leadership role, and the student who was motivated by their Jewish heritage to take on a leadership role, assuming that their motivations and leadership roleness are of similar caliber--
Dan: Yeah. I don't think you could say categorically the first is better than the second, right?
Will: Yeah.
Dan: I don't know. But this is a really interesting part of the opinion. It's actually the first thing I zeroed in on when the decision came down, and I noted it on Twitter, which says, "Look, all parties agree nothing in this opinion should be construed as prohibiting universities from considering an applicant's discussion of how race affected his or her life. But despite the dissent's assertion to the contrary, universities may not simply establish through application essays or other means the regime we hold unlawful today." And then, quoting a case called Cummings from 1867, it says, "What cannot be done directly cannot be done indirectly. The Constitution deals with substance, not shadows." That's a great quote, by the way. I didn't know that one. [crosstalk]
Will: [crosstalk] -used that one before. [laughs]
Dan: Okay. I mean, I'm sure I read it, but I don't remember everything the way you do, Will. "The prohibition against racial discrimination is leveled at the thing, not the name." This is super interesting to me for other reasons because does it suggest that other kinds of changes that universities might want to make are constitutionally suspect? Like, what if they say tomorrow, "We are going to get rid of SATs entirely-" there's already some movement in this direction because the way that the distribution of how people perform in them makes it more likely that we're going to end up with more white students in the class or whatever. So, they're doing it for a race-conscious reason to produce a sort of certain bottom line. Is that constitutionally suspect?
Will: That's a good question. And I do think that's the next big question, and I hadn't focused on how this passage bears on that. I think we can say from this opinion that maybe-- this is not yet established that all race consciousness is suspect because you can imagine, but at least if it goes so far, that it's clear we're just doing directly what can't be done indirectly. Imagine we don't just get rid of the SATs, but we come up with a whole complicated system of other factors that we're going to look at. Supposedly, we go to ChatGPT or some AI and say, "Please backfill our admissions process. This is the racial makeup we want. We can't use race. So, use some combination of preferences based on zip codes and other things to get us there." I take it that would not be permissible.
Dan: Quite possibly. And then, there's this case that-- I think I'd say there's a decent chance this will end up before the court. This case about Thomas Jefferson High School in Fairfax County, Virginia, following this one, where it's one of these test-based magnet schools. Very, very successful. I have friends from elite colleges who graduated from this school. But based on the selection criteria, it's low percentage of black and Hispanic students. Very high percentage of Asian students. And the school board there purported-- is wanting to change the way admissions works to produce a different racial balance. And that's being subject to constitutional challenge. That case is working its way through the system. I think it could ultimately go before the court. We have no doubt about the purpose.
The purpose is to change racial outcomes. And the question is, can they do that? Can you make a change? Clearly, you couldn't do it in the other direction. You couldn't say, "Gosh, there are too many black students at this school. So, we're going to impose a different requirement." We're going to say, "You have to come from the wealthy zip code," or, "We're going to say you have to pass this test that will be designed to weed out the black students." You could not do that. You agree you couldn't do that?
Will: Agree.
Dan: Okay. And so, the question is there symmetry there?
Will: Right.
Dan: And I tend to think Chief Justice Roberts would think, yeah. That if you can't do it to harm this race, you can't do it to harm the other race. Even if you see this as a benefit, there's a corresponding burden from a different group and you just can't do it.
Will: My colleague, Sanjay Dhar, has written an article forthcoming in the Stanford Law Review about this case and the surrounding cases and a bunch of things. So, the Thomas Jefferson case went to the Supreme court on the shadow docket last year for a stay and then got three votes for a stay, which was not enough for the challengers, the coalition for TJ. Now, that doesn't mean that they wouldn't get at least one more vote on the merits when the time comes, when cert comes and then two more votes on them. But that's interesting.
As I read the doctrine, it's a little funny. So, I think the doctrine pretty clearly establishes that a race-based motivation would invalidate a rule that discriminates against minority races. And the doctrine pretty clearly establishes that in general, the Equal Protection Clause is symmetric. There's no such thing as reverse discrimination. It's all discrimination as far as the court is concerned.
But weirdly, there's no case that I found, no Supreme Court case, that puts those two propositions together, that says two plus two equals four. And there is a case, one of Justice Kennedy's last-- I don’t know last, but late opinions in case called Inclusive Communities. Texas Department of Housing and Community Affairs v. Inclusive Communities, which upholds disparate impact liability under the Fair Housing Act, where there is a paragraph in the opinion about why it's okay to be race conscious when you're doing it to eliminate a disparate impact as opposed to cause a disparate impact. So, there's at least one case that says two plus two does not equal four. Doesn't totally grapple with the existing precedents. Alito and Roberts and Scalia and Thomas dissent, so it doesn't necessarily speak well for its shelf life in the current Roberts court. But that's just enough to leave me maybe unsure how eager the court's going to be to get back on this.
Dan: Yeah, that’s interesting. One way you can think about disparate impact is it's like a rule of evidentiary rule. Like, you don't have to prove the discrimination, but it's just sort of a way to get at it but that's obviously not the way it's always used.
Will: And I do think there's sort of two different things that might be legally similar feel different to me. So, one saying to your admissions department, "Work up 51 different race-neutral admissions programs and find me the one that gives me the most racial minorities." That seems like something that the court will be very skeptical of.
Dan: Yeah.
Will: On the other hand, if somebody just comes to you and says, "Why are we putting so much weight on the SAT? There are all these well-known complaints about SAT prep and this and this. And also, it has a big disparate impact on minority populations." And you say, "Yeah, for all those reasons, including the last one, we're going to be down with the SAT." Again, technically, those might both violate our Arlington Heights, the standard for mixed motives and using race, but they feel different.
Dan: Yeah. Or maybe even make it a little different in someone saying, "Look, it's got this big disparate impact." There clearly is something wrong with it, that something about what they're testing is not fair. Maybe it's testing, this has been a criticism of prior years. It's like testing words like regatta or something like that. Like words that rich white people might know and that kids growing up with economic deprivation might not know. And so, that seems different. If you're saying there's some something discriminatory, even if we can't quite identify what it is, versus just saying we think this is not-- we don't like the distribution.
Will: Although the majority might say, "Why do you assume that there should be some particular racial makeup in any particular direction? You just judge [crosstalk] individuals. Don't assume that people of similar races or different races should score--"
Dan: Yeah, that is the rejoinder. Okay. There's obviously a lot more we can say about this, but just with the predictable conservative, liberal cases, I was just like, look, you all know the basic battle lines, and is there anything we can add in terms of value? I don't have a ton else. Do you have anything else?
Will: No.
Dan: Okay, bet you thought we'd spent the whole episode talking about that one, listeners. But no, we're going to talk about some other stuff. So, where next? Where do you want to go?
Will: Should we talk about Mallory v. Norfolk Southern?
Dan: Yeah, we could do Mallory, fun one, that we spent good-- I'd say a lengthy episode talking about way back in, I don't know, November or something.
Will: Yeah. I think we previewed it, previewed their argument, reviewed their argument a little bit. This is a personal jurisdiction case about the ability of the state of Pennsylvania to establish personal jurisdiction in a lawsuit against an out-of-state corporation that basically has nothing to do with Pennsylvania.
Dan: It's certainly the suit. There's no argument you can make that the suit is such that there would be so called specific jurisdiction in the state of Pennsylvania. Didn't happen there. The plaintiff is not currently resident of there.
Will: I think a little bit of the conduct did happen there, but everybody's not relying on that because it's based on a bunch of work that Mr. Mallory did for the railroad. And what the railroad did do is the railroad does have a bunch of track in Pennsylvania, and it got a license to do business in Pennsylvania. And under Pennsylvania law, getting a license to do business in Pennsylvania as an out-of-state corporation automatically consents you to general jurisdiction in the courts of Pennsylvania. So, Mr. Mallory sued in the courts of Pennsylvania, said, "You agreed to be here by doing business here." And the railroad said, "That's not fair," and Supreme Court said, "Yes, it is."
Dan: Yeah. Or at least that's not a constitutional problem.
Will: Well, it might be a constitutional problem, but it's a [crosstalk] problem.
Dan: It's not a due process constitutional problem.
Will: It's not this constitutional problem.
Dan: Yes. We've got sort of a split rationale or at least-- we have different Justices pointing to different stuff.
Will: Yeah. According to the court, Gorsuch announced the judgment of the court, delivered the opinion of the court with respect to parts 1 and 3B, in which Thomas, Alito, Sotomayor, and Jackson joined. [crosstalk]
Dan: One is just the-
Will: Intro.
Dan: -fact section.
Will: And an opinion with respect to parts 2, 3A, and 4 in which Thomas, Sotomayor, and Jackson joined, Jackson concurred, Alito concurred in part incurred in the judgment. And then, of course, Barretts, Robert, Kavanaugh and Kagan dissented. I think an interesting-- [crosstalk] Barrett, Roberts.
Dan: Yeah. Barrett, Roberts. You said Barretts, Robert, which is the Supreme Court in an alternate universe.
Will: So, we have this interesting five Justice coalition, and then with Alito partly in his own theory.
Dan: This is a place where we are going to rely on the discourse. There's maybe something weird that happened here. If you look at the breakdown of opinions from the November sitting, there were nine arguments, but Alito does not get one, a majority opinion. He does not seem to have been assigned a majority opinion, at least at first glance from that sitting. And Justice Gorsuch has two.
Will: Mm-hmm. And what was his other one?
Dan: That was Bittner.
Will: Bittner. Oh, that's the forms one.
Dan: Yeah. Which is interesting. It's a 5-4. It was not some throwaway case, like it was a real meaty case.
Will: So, the natural inference is that somehow this case was originally assigned to Alito.
Dan: Which is weird. Normally, when you have what we call a steal or a flip of a case, somebody is writing the majority and then somebody writes the dissent, and the dissenting person peels off one of the members of the majority, turns the majority into a dissent. That wouldn't be what happened here because Justice Alito wins. He gets the outcome that he wants.
Will: Right. But it could be something more like there are three positions. There's the Gorsuch bloc, the Barrett bloc, and maybe even Alito. Maybe not everybody is totally clear where they are.
Dan: Yeah, but so walk me through the--
Will: Okay, it'd be something like in a conference, Gorsuch says, "This is fine." Barrett says, "This is not fine." And Alita says, "I'm kind of in the middle. I think it's okay under due process, but maybe not under dormant commerce. And I'm still working on exactly--" you could still even be working on exactly what that his position will be. Is he remanding? Is he doing something in the middle? And so, they could say, "All right, Sam, you work it out, and then you can see if you can get everybody together for your compromise." Either he circulates something, and nobody will join it. Or even, I don't know, maybe in March, he comes back and says, "[sighs] I can't really get there. Neil, I'll join your--" [crosstalk]
Dan: Yeah. I think maybe the latter thing makes more sense, because if he writes something that purports to be the majority and then nobody wants to go along, I don't know if he then was willing to sign on to other parts of the Gorsuch opinion. I think he'd just be mad.
Will: Yeah. Although if you're writing a part as a compromise, let me see if I can get enough votes a compromise on both issues, and then if I can't, well, then no point in compromising all by myself or something.
Dan: Yeah.
Will: Now, you could imagine that maybe actually Gorsuch always had Mallory but stole Bittner.
Dan: Yeah.
Will: But I think the dissent in Bittner is by Barrett. So, that wouldn't solve the Alito problem unless-- although Alito joins the Gorsuch opinion. So, it's hard to figure out how that one would work it out.
Dan: Yeah, same problem there, I guess.
Will: Yeah. So, my guess is that in some way, even just on spec that Mallory was assigned to Justice Alito, and in some way maybe not like stealing, [laughs] but in some way, Justice Alito threw in the towel and joined the Gorsuch--[crosstalk]
Dan: And his view, by the way, is different because he thinks there's a very serious Dormant Commerce Clause problem. He's not totally resolving the question, but he seems to think that this statute like Pennsylvania's that says, "You can't come do business here unless you let our courts entertain suits against you for anything that happens anywhere in the universe," that that might be a burden on interstate commerce.
Will: His opinion, I think it tracks very closely to the structure of the amicus brief by Steve Sachs, which says there are two questions. One is, can you demand that the state register as a condition-- the corporation register as a condition of doing business? And then, if they do register, does that have jurisdiction?
Dan: Yes.
Will: The answer to the second question is yes. If you can demand that they register, that's enough to establish jurisdiction--
Dan: Because they did register. And they basically-- what I think everybody on the side of the majority agrees is that is consent. And once you consent, they can sue you, that's the end of the story.
Will: Right. But then, can you demand their register? That's a Dormant Commerce Clause problem. And it's also one, maybe you'd expect it to be litigated slightly differently. Like, maybe you'd want to say, "Look, if you have a problem with the registration requirement, you ought to say that at the time you register."
Dan: Yeah. File a suit before registering and say, "I want to--"
Will: Yeah. So, just register, and then keep your fingers crossed behind your back and not even telling anybody it's under protest, and then years later say, "Oh, actually, I didn't really mean it."
Dan: Yeah. Because at that point, you're sort of making an unconstitutional conditions argument. Basically, you're saying, "Well, yes, I did it, but it was unconstitutional to ask me to do it. So therefore, you should say backsies."
Will: If you plead guilty to something and then go to prison and then, I don't know, five years in, you want to complain about some of the conditions in prison, it'd be weird to at that point say, "Well, my plea was involuntary, so it's not fair that they're taking my books away." Your plea might be involuntary. That's a serious charge and one that we can look into. But this is not the time and place.
Dan: Just a couple of things. So first of all, given the narrowness of the win, do you think this is a case where advocacy made a difference? He is a friend of the show, so we're not unbiased. But Ashley Keller, I thought it was one of the best oral arguments I'd ever heard, came out guns blazing, criticizing the other side for not being true to originalism. I don't know if he said phony originalism or something like that. Seems to have threaded the needle and won, perhaps even was about to lose and won. So, I think that's really cool. But there's some questions here.
So, the dissent by Justice Barrett, I think I said that I was with where Justice Gorsuch ends up back when we talked about this way back when. But I do think there are some decent arguments on the other side. And I think Justice Barrett makes one in particular that I thought was pretty interesting. So, let me try to get there, which is on page 6 of her dissent. She says, "Imagine a law that simply provides any corporation doing business in the state is subject to general jurisdiction in our courts. This hypothetical law, like the Pennsylvania statute in this case, gives notice that general jurisdiction is the price of doing business. So, in the court's reasoning, corporations that choose to do business in the state impliedly consent to general jurisdiction. The result, a state could defeat the Due Process Clause by adopting a law at odds with the Due Process Clause." The premise of that being that states are, we've been told in other cases, due process does not allow states just generally to exercise general jurisdiction over all claims brought against a corporation, even those unrelated to the form state. You can do that where the corporation is registered, where the corporation is incorporated, but you can't do that anywhere.
But she says, "Look, if this is the rule, if the majority is right, then you can just get around that with a statute, this hypothetical statute." What did you think? Did you find that persuasive?
Will: Well, yes and no. It's funny. I can't tell if this is a very functionalist argument. If it's very much saying, "Look, we just held that you can't have general jurisdiction and now this is a workaround. So, it's sort of a substance, not shadows Cummings argument." Or if it's a very formalist argument because part of what she's saying about what makes that hypo like this is that at no point did Norfolk Southern actually write the words, "We consent to general jurisdiction."
Dan: Yeah.
Will: Right. They just registered to do business. Now, it's a law that says registering to do business constitutes consent to general jurisdiction, but that is not-- but again, that may be a very formalist point, which is not necessarily bad.
Dan: Yeah, I guess the question is if it said, "You also have to submit this piece of paper that says, 'I definitely consent to being sued for anything.'"
Will: Right. I think Pennsylvania, at the time the statute was enacted, was relying upon the general understanding that registering to do business and appointing an in-state agent and all that stuff were the standard forms of consent. Rather than putting the letters, I-C-O-N-S-E-N-T in a row, that they really were communicating consent. So put it a different way. I worry that she is wrenching the statute for historical context to make that point. The majority is not saying, I think, that states can just define doing X to be consent where X is anything they want to, but they're saying in the specific example of a well-established form of consent to jurisdiction at the time of the draft of the 14th Amendment that hasn't gone away. And that makes it more like tag jurisdiction.
I guess we don't classify tag jurisdiction. This is the part we talked about before where you show up in California and the prosecutor hits you with the paper, and then that's enough.
Dan: Even if the suit has nothing to do with California, you've never been to California, the plaintiff is not from California, the mere fact of just like having your body in that state means that they can get you.
Will: Right. That too is sort of a form of maybe like constructed consent. You show up in California and you implicitly consent to the possibility of getting hit with papers. The fact that we allow that doesn't mean that states can define jurisdiction however they want. So, I guess I think it's a good point, as a good point that forces you to sharpen exactly what the majority is relying on, but maybe not the kind that defeats it.
Dan: Yeah.
Will: Now, she has this other point I also like about the tag jurisdiction analogy, because what Gorsuch likes oral argument and still makes this point is like, "Look, tag jurisdiction is a formal weird thing that existed at the founding or the framing of the 14th Amendment. And we said yes, that's still alive and well, even if it doesn't meet our modern balancing test. And this is just sort of tagged jurisdiction for corporations. It's the equivalent. If you want to show up in Pennsylvania as a corporation, you're liable to being tagged." And she has this interesting, she says, "Well, look, in that opinion, we relied not just on the fact that this was like an old form of jurisdiction, but also in the fact that every state still had it. It was in continuous force. She sort of relies on the post-ratification liquidation almost of jurisdiction. Whereas this is like a statute that almost no state still does it this way, it's an outlier. Isn't the same practice. That was a good point.
Dan: Yeah. I mean, that you clearly can't just say it's exactly the same. There clearly is not such a long line of history, but there is precedent here. And the court majority actually leans on that very, very heavily on this case, Pennsylvania Fire, perhaps more than a Justice Gorsuch opinion might always do, because he's less of a precedent guy than some of his colleagues.
Will: Well, indeed, that's the only substantive part of the opinion that is the opinion of the majority. The part that Justice Alito joins, 3B, is the part that begins, "Pennsylvania Fire controls this case."
Dan: Yeah.
Will: So, in a way, if you just printed the actual opinion in the court, it's like a three-paragraph summary reversal on the basis of Pennsylvania Fire.
[chuckles]
Dan: What else? You've got more things.
Will: I got more. About what I was just saying, does this mean Justice Barrett is not an originalist? It seems like the setup is at the time of the enactment of the 14th Amendment, this was okay. If you look at the subsequent course of practice, the liquidation, tag jurisdiction sort of remains alive and well, whereas doing business jurisdiction does not. And Justice Barrett says, "Well, I would follow the subsequent course of practice. I would say tag jurisdiction is okay, but the other kind is not." Or maybe she's an originalist, but she's an originalist who believes more strongly in liquidation and post-ratification practice than we realized?
Dan: Well, this raises a more general question, which is-- it is something weird about this case, which is that there is less originalism going on in it more generally than you might expect in the sense that I think even Justice Gorsuch, his opinion does not take aim at the due process analysis that governs in other cases. It sort of says, "Look, when you don't have consent, then precedent says you go do due process analysis. But when you do have consent, it's just a different rule."
But there's a credible argument, and maybe you'll tell us what you think about this, that that's wrong. That the court really lost its way middle of the 20th century when it started saying, "You have to determine whether these kinds of suits violate principles of fairness. If they try to hail you into court and you're a company from across the country, that's a due process question." Don't some regionalist minded folks say that's just not Due Process Clause is not really where that particular argument resides?
Will: Yes, I think so. And I think, of course, the best and most notable argument in this genre is by a friend of the show and I guess friend of Mallory, Steve Sachs, who says that the court has lost track of what work the Due Process Clause is doing. The Due Process Clause says that state courts have to obey the general principles of jurisdiction. But the general principles of jurisdiction do not come from the Due Process Clause. Those are themselves a form of sort of general or international law. I think there are parts of Gorsuch opinion that are definitely aware of that possibility, not the parts that are joined by Justice Alito, but it doesn't. [crosstalk]
Dan: Throw as much shade on that line of cases.
Will: Yeah. Well, maybe that's the price of getting to five. Maybe if this were a two Justice dissent by Gorsuch and Thomas, it would be a different opinion. And actually, instead, this is reminding me a little bit of what's happened to the court's Fourth Amendment jurisprudence--
Dan: Yes, I had the same thought, actually.
Will: Orin Kerr will disagree with this oversimplification, but the standard oversimplification is something like, there was an old test, the trespass test or the positive law test or the general law test or whatever you want to call it, and then Katz introduces this loosey-goosey test about reasonable expectations as a basis for the coverage. And for a while people thought that the loosey-goosey test had replaced the old test and then in Jones and Jardines, we discover, we got both tests. You can use the old test--[crosstalk]
Dan: Yeah, two--[crosstalk] And it's something if police commit a trespass or something like that, that can be a search that's regulated by the Fourth Amendment or if they do something that violates your reasonable expectation of privacy. Yeah, that was the exact same thought I had.
Will: Yeah, and I think this is the same move, is now the court saying, "You can establish jurisdiction either through the loosey-goosey International Shoe test or through the old but good formal tests, tag jurisdiction and doing business.
Dan: Yeah.
Will: Do you think the court will ever actually get back to the dormant commerce question? So, the dormant commerce question is teed up. I think the state below didn't talk about it enough or didn't talk about it. So, they could strike down the statute again on dormant commerce grounds. As we know from the National Pork case, the Justices have complicated views about the Dormant Commerce Clause amongst them that don't fully map on to the same constellation here. So, didn't the court ever get to that again or--?
Dan: My guess is not just because I actually don't think these cases come up are that important. As of right now, there's very few states that even have these kinds of consent to general jurisdiction by registration schemes. I think that they used to be more common. Seems like they don't really happen very much. I don't know how many times, how often, I'm not a [unintelligible [01:12:09] and maybe Ashley will tell us how many suits there are out in the world that rely on a statute like this. Are there people filing thousands of suits in Pennsylvania against railroads that do business elsewhere, railroads that happen to do business there? I don't know. [crosstalk] I mean, I guess and I didn't see-- Justice Barrett doesn't really get into it, right?
Will: Yeah. I saw an interesting prediction from Zach Clopton, President of Northwestern that it's very unlikely that any other state will adopt a statute like Pennsylvania's just as a matter of sort of the political economy of jurisdiction. But it's more likely that states might adopt like industry-specific versions of them. So, if you're Connecticut and you have big insurance companies in state that complain about having to litigate in Connecticut courts that are relatively plaintiff friendly, then maybe you do equalize the playing field by saying all insurance companies that sell insurance policies in Connecticut have to consent to Connecticut registration. And you can see little boutique versions of that for different kinds of industries in different places. That’s hard to predict obviously. You could imagine that happening enough different industries that then we'd have to know if this was a viable strategy or not. [crosstalk]
Dan: Yeah, although then the insurance companies can just make Pennsylvania-only subsidiaries or something. Think so, because you typically can't pierce the corporate veil.
Will: But is it the case that the other companies are not doing business in, I don't know how--
Dan: Say that again.
Will: All right, if Norfolk Southern creates a Pennsylvania-only subsidiary, can it say only the Pennsylvania subsidiary is doing business in Pennsylvania? Maybe trains are different from insurance policies, but when the train moves from Virginia to Pennsylvania, that the train suddenly ceased to be owned by the Virginia subsidiary and is owned by the Pennsylvania subsidiary.
Dan: Yeah, I guess if it's a train, maybe that's more complicated. This is something that comes up in Justice Alito's opinion a little bit on page 13 of his opinions, says, "Large companies may be able to manage the patchwork of liability regimes, damages caps, and local rules in each state." And he suggests, "They may resort to creative corporate structuring to limit their amenability to suit." So, if you're an insurance company, at least presumably you could just have the traveler's Pennsylvania license to business. And I think that would get you out of the problem, but obviously it's more complicated. But maybe there's some other corporate law reason why that doesn't work or some insurance regulation reason why that doesn't work. I don't know. But there may be workarounds.
Will: Yeah. Okay. I also sort of wondered-- the other workaround I wondered about, is like, what if a company just doesn't register? What if Norfolk Southern is like, "Well, we're supposed to register to do business, but just won't." My understanding is that it's rare for large corporations to be fined. Pennsylvania is not going to go tear up the tracks just because Norfolk Southern won't sign the paper.
Dan: Well, I don't know about that. There might be a lot of implications for that. I just don't know.
Will: Okay, but we might find out, I guess.
Dan: Yeah. You could come up with some-- maybe in that situation, you'd say, "Well, normally just doing you can't just say doing business is implied consent. But in that situation where you are intentionally evading registration in order to avoid implied consent." Maybe that's different.
Will: Although I don't know how much the state cares about this law. For instance, like, the state of Pennsylvania, I think, despite the constitutionality of law being called into question, didn't show up in court and say, "Don't strike it down."
Dan: Which is one of the whole things in the case, which is like, "Why does Pennsylvania care about this, being able to adjudicate this case?" And answer, maybe it doesn't.
Will: Maybe they don’t. [crosstalk]
Dan: Maybe very few people care. So, we'll see. I think that this one is maybe less likely to tee up litigation. I mean, the issue will maybe arise in the lower courts. Maybe lower courts will just take care of it. Maybe it won't rise that much. We'll see.
Will: Yeah.
Dan: Okay. Mallory, check. One of our many biggish cases to get off of our queue. I think we've got time for one more. What do you think?
Will: Sure.
Dan: It's going to be a longer episode, and that's okay. That's what people are-
Will: Paying us for.
Dan: I think it's what people want, actually. I think most people want no episodes. Your average person out there, the optimal number of our episodes would be zero, but of the people that do choose to listen, I think most of them would like more episodes and longer episodes. So, let's give them one.
Will: Yeah.
Dan: How many cases named United States v. Texas have there been?
Will: [laughs] In the history of time? [crosstalk] The history of--
Dan: Recent years? I don't know. It's just a little hard for me to keep track of.
Will: I think there are at least three major. I mean, there's been several cases called Biden v. Texas. But there have been at least, I believe, the original DACA, DAPA lawsuit against the Obama administration that was decided 4-4 when Justice Scalia died was, I believe--
Dan: Or not decided, I guess-- [crosstalk]
Will: It was affirmed by an equally divided court judgment. The nationwide injunction was in effect. That was United States v. Texas. Then, the companion case to Whole Woman's Health v. Texas, the SB8 law where the United States tried to break the logjam by bringing a suit directly so it pierced through sovereign immunity. That was United States v. Texas. And now, this one is United States v. Texas. I'm sure there are others.
Dan: We need more creative captions.
Will: [laughs] I just think United States v. Texas is a way of life.
Dan: Yeah. I mean, certainly during Democratic administrations, I think we're going to see many, many of those.
Will: We talked about this case in the genre of a specific issue. We talked about this case because it featured a question about the APA and about the power of federal courts to vacate rules under the APA. I don't know that we ever talked about the sort of general substance of the case, which is the ability of a state to complain that the Executive Branch is not enforcing immigration laws. Again, sort of a déjà vu to an earlier United States v. Texas. Do you remember if we talked about it?
Dan: I think we mainly just talked about the vacatur issue.
Will: Well, the court doesn't really talk about the merits of it either, because this is one of these fed courts bonanza cases, which is as I was working on the supplement to the Hart and Wechsler fed courts book, this is one of the cases that I had to try to break down on a very small number of [crosstalk] and figure out how to cram it into a couple of paragraphs. That was good for me. Putting in your reps.
Dan: You earn your keep once in a while.
Will: The basic question is, there's a federal statute that can be read to say that the Executive Branch is required to detain immigrants in various categories guilty of certain offenses and they don't detain them all.
Dan: Arrest, right?
Will: Yeah, yeah.
Dan: This is important. Arrest and detain.
Will: Arrest and detain, yeah. Arrest and detain. And they don't do that, they have a different policy that does not reflect that categorical rule. And the State of Texas--[crosstalk]
Dan: And not just a different policy in practice. Like, they've written down a different policy. There's guidelines.
Will: Yeah, there's guidelines. I mean, they have their own view what the statute means. They don't concede they're violating the statute, but it's arguable that the statute doesn't mean what the Executive Branch says. And the question is, can the state of Texas sue in federal court and tell them to not do that, do the statute instead. Vacate, in a way, the alternative written guidelines?
Dan: Yeah. Although that's one thing they could be asking for.
Will: And the answer is no, they can't.
Dan: Can't do that. Okay.
Will: But why is it more complicated?
[chuckles]
Dan: Yeah. I'd say this one-- I struggled with a little bit. So, we have, I think, a not super long opinion by Justice Kavanaugh that, for me, I thought actually left me with more questions than it answered. Here's what the opinion-- the basic thing the opinion says, but then it like walks it back pretty extensively. The basic thing the opinion says is like, "You as a plaintiff," Texas, whoever, "generally do not have standing and there's no legally cognizable interest giving rise to an injury to when you're just going in and saying, 'Hey, government, you should be arresting and prosecuting these other people.'"
Will: Right.
Dan: That's a thing that Article III does not let you do that as a general rule.
Will: Right. You almost always have standing to say, "Hey, don't prosecute me." But you almost never have standing to say, [laughs] "Hey, punish the other guy."
Dan: Yeah. And at first, that seems to make sense. It's going to raise a whole host of questions about what other stuff can-- does that mean you can't sue? But then the court itself doesn't says, "Well, okay, maybe that's the general rule, [chuckles] but let's give you a list of things where maybe that wouldn't be true." This is the weirdest part of the opinion, and it's like multiple pages-- [crosstalk]
Will: Here are five exceptions. [chuckles]
Dan: Yeah. "We do not suggest that federal courts may never entertain cases involving the Executive Branch's alleged failure to make more arrests or bring more prosecutions." Some of these make more sense than others. So first, it says, "There still can be selective prosecution claims under the Equal Protection Clause." So, they're prosecuting black people for this, they're not prosecuting white people. They're doing it purposefully. You can still make an Equal Protection Clause claim. But there, what are you doing? Like you're actually saying, "Don't prosecute me." You're not saying, "I'm demanding that you prosecute the other people."
Will: Yeah, it's a little weird because it is the case that prosecuting the other people would be responsive to your demand. Since you're making a disparate treatment claim and since you can level up or level down, it is still the case that the government could say once the suit is filed, "Oh, sorry, you're right. We're going to go prosecute a bunch of white people as well. Happy?"
Dan: But at least you can say, "There's a claim that maybe there's some reason why they wouldn't do that. I'm being injured because they're choosing to prosecute me for that reason." That made sense to me. Second, as the Solicitor General points out, "The standing analysis might differ when Congress elevates de facto injuries to the status of legally cognizable injuries redressable by a federal court." So, maybe I don't think everybody really believes this in the majority, but maybe Congress could pass a statute saying if the immigration authorities are not enforcing this, like states can sue. Maybe that's different. I don't think that it would be for actually Justice Kavanaugh is my suspicion.
Will: But maybe for some members of the majority.
Dan: Yeah, certainly for the liberal Justices. Oh, we didn't even give the lineup.
Will: That's okay, we'll get there.
Dan: [chuckles] Okay, get there later. Okay.
Will: Don't break the flow.
Dan: Okay.
Will: Also, why isn't this such a case? In this case, the APA enables people who think the federal government is violating the law and its policies to sue. So, there is a statutory cause of action. That's the sort of APA vacatur question we're talking about, and that's not enough. The court thinks it has to be like a specific--[crosstalk]
Dan: A defined set of plaintiffs who have suffered concrete harms.
Will: And it has to specifically authorize the judiciary to enter appropriate orders. So, it's more like also a clear statement of rule, which is a little weird, and gets a little bit into them. I mean, I'll also circle back to in a second is the merits. It's like, to what extent is the court saying this is non-injury? To what extent is it saying there's not jurisdiction for some other reason? And to what extent is it just saying what the Executive Branch is doing is fine because Article II makes them in charge? So, this is confusing.
Dan: Yeah. And then there is a footnote to this part where he says, "As the Solicitor General noted, those kinds of statutes, by infringing on the executive's enforcement discretion, could also raise Article II issues." So, maybe if Congress purported to create a cause of action for people to go demand that the Justice Department initiate certain enforcement actions, maybe that would be a problem. So, that's one possible exception.
The third one, this one, I wrote exclamation marks in my notes next to this one. Third, "The standing calculus might change if the Executive Branch wholly abandoned its statutory responsibilities to make arrests or bring prosecutions." Wholly abandoned. So, if they say, "We're just never going to enforce immigration law ever," maybe then you can come in. Where does that come from? How do we know what the difference is?
Will: The answer to where it comes from is it comes from a case called Heckler v. Chaney, which is an APA case--[crosstalk]
Dan: Not an Article III standard case.
Will: The APA generally has a presumption that you can't review inaction. You cannot review inaction. You can only review action. And there's an exception if the inaction takes the form of conscious express total abdication. So, the court seems to be bootstrapping that APA exception to a possible standing exception.
Dan: Yeah, and the Article making that a constitutional rule.
Will: Yeah. Well, and given that it's unclear where the Heckler rule came from, I don't know why not. But this just adds to the blending. There's like this shell game about, is this an APA case or an Article III case or an Article II case? It's also not clear to me-- I mean I think Texas was arguing that the Executive Branch should wholly abandon its statutory responsibilities.
Dan: Right. It's basically saying, "We're not going to pursue a whole class of people."
Will: The statute says, "This is mandatory." The statute says, "Shall, and we are not going to treat it as mandatory. We're going to treat this as our choice." But the court says, "No. It's hypothetical. The states have not advanced a Heckler-style abdication argument in this case. Therefore, we do not analyze the standing ramifications of such a hypothetical scenario." This is a little like when the Court of Appeals says, "There's an interesting argument about whether to reverse but it's only made for seven pages in the reply brief. So, we're going to ignore it."
[laughter]
Dan: It's only one Roman numeral in the opening brief. Yeah, only 20 pages. Fourth, and these are all just totally different.
Will: This is so Breyer style.
Dan: Yeah. "A challenge to an Executive Branch policy that involves both the Executive Branch's arrest or prosecution priorities and the Executive Branch's provision of legal benefits or legal status could lead to a different standing analysis." [crosstalk] -could.
Will: And here they cite Texas v. United States, the case affirmed as United States v. Texas, but the Dreamers problem. The theory of the Dreamers challenge was, you're not just refusing to deport the Dreamers, but you're also giving them work authorization and various forced legal status. And that's what makes this one problematic. And the court says, "Again, we need not resolve the Article III consequences of such a policy."
Dan: Justice Alito writes a dissent, he's a solo dissent in this case. There's some other disagreement about the rationale, but he sort of says, "It doesn't really make any sense. Wouldn't those just be two separate claims? Why can you challenge the nonenforcement decision just because they also happen to be doing other stuff?" So, a lot of questions about that, again, that the majority doesn't answer.
Will: The fifth is the weirdest.
Dan: "Policies governing the continued detention of noncitizens who have already been arrested arguably might raise a different standing question than arrest or prosecution policies."
Will: Cf. Biden v. Texas, the immigration case like this from last year. Why would policies governing continued detention be more likely to support standing than policies governing the need to arrest and detain?
Dan: Is it weird because it seems like what's really going on in the case is not so much standing but like principles of separation of powers in terms of the Executive Branch authority? Does that make sense?
Will: Maybe. On the merits, arresting is maybe like a more discretionary policy. [crosstalk]
Dan: Yeah. It's just like we really think that what's motivating this is there's strong idea that that's core Executive Branch and that courts just-- and Congress don't get to go in and just say, "You don't get to do that." There's some reason to believe that might be true. One thing that is really interesting is that this opinion does not ever cite, I think, it's not a Supreme Court case, but a very important case 50 years ago, 1973 case called Inmates of Attica Correctional Facility v Rockefeller. Do you know this one, Will?
Will: No.
Dan: You don't know this one. Okay, that's great. I finally got one thing you don't know. This is a case that we talk about in criminal law actually and that my criminal law professor, Bill Stuntz, I think focused a lot of people's attention on. And it's now in the Kadish, Schulhofer, Barkow casebook because it's a seminal case about prosecutorial discretion. And in that case, what happened was there were people who were-- there were inmates of the Attica prison and relatives of inmates. And they had a very credible argument that after the Attica prison riot, correctional and law enforcement officers retook the prison and seemed to have maybe actually murdered people in doing so, like executed some prisoners and not merely just used force that was necessary to retake the prison and did various other things. So, 32 inmates died.
And so, those plaintiffs came in. What had happened was federal prosecutors and state prosecutors just let it go. They just were like, "No, we don't think that we should bring charges here." And these plaintiffs came in and said, "No, you've got a mandate that they investigate and file charges." And in that case, there actually was-- the statute says, "United States attorneys are authorized and required to institute prosecutions against all persons violating any of the provisions of certain specified statutes." And the argument was there required meant that there was no prosecutorial discretion. And the court, the Second Circuit, this case doesn't get resolved by the Supreme Court, Second Circuit dismisses it, says, "No core principle Executive Branch has enforcement authority. Courts are not supposed to get involved in that." And I think for arguments, that are persuasive. So, here's one thing that the court in that case says, Inmates of Attica.
"In the absence of statutorily defined standards governing reviewability or regulatory or statutory policies of prosecution, the problems inherent in the task of supervising prosecutorial discretions do not lend themselves to resolution by the judiciary. The reviewing courts would be placed in the undesirable and injudicious posture of becoming super prosecutors," where they'd have to go through and sort of say, "Well, you didn't bring charges here, let's reevaluate this. Maybe you should have brought charges." And that sort of makes a certain amount of sense at least proceeding from the premises of our constitutional system. This is different, because it's not someone saying, "You should have prosecuted this particular person." It's saying, "You have chosen to just not prosecute this whole class of people." And that maybe you get to choose who to prosecute, but you don't get to just say, "We're going to slice off this huge part of the statute." But it's interesting. Why is that not in the case, that kind of set of arguments?
Will: Because instead they cite a different lower court case from the same era, United States v. Cox, Fifth Circuit case from 1965, which is also a lower court case with prosecutorial discretion, which happens to be on our con law casebook. So, I know it well. Guess some student was taught this case. But it's interesting. It's the same problem, but maybe a more sympathetic set of facts, where in an earlier case about the Voting Rights Act, the claim is that two of the black witnesses to the misconduct of a white of a-- I think, Mississippi voting register, the claim is they were mistaken. They said that he didn't register somebody, but actually he did. It's not even clear they lied, but they supposedly were mistaken. And the conservative district judge wants to see those witnesses prosecuted to sort of retaliate for their daring to challenge the regime in the south.
And so, he convenes a grand jury, and the grand jury orders them to be indicted. And then, the local federal prosecutor refuses to sign the indictment, says, "No, I'm not going to bring these charges." And then, he orders them to. And then, it goes to the Fifth Circuit, which goes on bonk and splits, but agrees, holds that a federal court cannot force the prosecutor to bring an indictment. And given the fact pattern, it's a popular case for prosecutorial discretion types to say, "Look, see, it's important that we have prosecutorial discretion." It's not just about letting the prison guards kill the prisoners. It's also about letting the Kennedy administration enforce voting rights in the south without being dragged into stuff by bad district judges. He cites that one.
Dan: Yeah, but ultimately, they're not resting on those separation of powers concerns exactly. They're sort of saying, like, "You don't even get to that point because the plaintiff can't bring a suit like that." It's not that you have standing, but the suit just doesn't go anywhere because courts just can't interfere in these decisions. It's like because it involves this decision, you don't even have an injury in the first place that gets you into the courthouse door.
Will: Well, okay, so this is the funny thing about the majority opinion, I think, formally puts all this in the standing, is there an injury box? It says, "The states don't have a cognizable injury." That is not the only box it could belong in. It's not even clear where the court thinks it belongs. The cases they cite, like Linda R. S., the cases that say, "In general, you can't sue to have somebody else prosecuted," are not in the injury box. They're in the redressability box. They say, "Even if you're injured, we don't redress these things or prosecute other people."
Dan: And that's part of the standing inquiry, right?
Will: Yes.
Dan: You can use standing to suit if your injury, if the conduct that you're complaining of is traceable, traceability to the defense conduct, and whether it's redressable, if the court gives you the thing that you want, whether that's actually going to make your injury better.
Will: Right. But then the court says, in this case, there are good reasons to that principle and one of the good reasons is Article II. That lawsuits alleging that the Executive Branch has made an insufficient number of arrests run up against the Executive's Article II authority to enforce the federal law and then they settle these merits cases including Cox. It's doctrinally very weird, both at the level of, what did the court hold and where do these five exceptions come from? And at the level of why are we putting this in this box? The best thing you can say about it though is that the court had the right gestalt answer. Maybe this was my reaction when we talked about this case. It's like, it just can't be true that the state of Texas gets to go to the Supreme Court and force the Biden administration to arrest immigrants. That just can't be true.
And now whether that's true because of what the word "shall" means or because of Article II or because of standing or, I don't know. 80 years ago, this would have been a political question before we changed that doctrine. And maybe Justice Kavanaugh doesn't care about boxes neither. It's just like that just can't be true. And that's right.
Dan: But where he lands does seem like it is a broader principle. Even with all the caveats, it does seem like it's a fairly broad principle whereas we have some other possibilities. We have a concurrence in the judgment by Justice Gorsuch who, I think, could fairly say that he has a narrower rationale. He thinks this is a redressability question. That maybe you do have an injury in a situation where the government has chosen not to prosecute certain people or arrest people, but in this case, that injury is not clearly going to be redressable.
Will: Yeah. Although whether it's narrower or broader is interesting. On the one hand saying, "Yes, you have an injury, but it's not redressable," sounds narrower. But that redressability forces Justice Gorsuch, as well as Justice Thomas and Justice Barrett who joined this opinion, to get into the question we talked about in an earlier episode, the vacatur question, because one of the remedies that the states seek is a vacatur of the guidelines, the enforcement guidelines that they say are in the statute, and that if that remedy is available, sounds like a redress.
Dan: Yeah, I think that's right. That would be maybe bigger in certain ways but smaller in other ways. It doesn't adopt this principle that you just don't get to go challenge these decisions. But it also then has this huge remedial implication.
Will: And same thing for the merits. If you think of like, there are two straightforward ways to resolve this case. One is to say Article II means that the President gets decided to prosecute. That's a big constitutional question. I know Justice Kavanaugh believes that's correct. I think he wrote a lower court opinion saying that's correct. But that's a big question. He might notify Justices who want to join it. Another is to do the redressability route and to say Sam Bray and John Harrison are right and Ron Levin and Mila Sohoni are wrong about the scope of vacatur under the APA. And there's a new issue of the Notre Dame Law Review on Administrative Law Remedies that has, I think, an article by Ron Levin as well as an amazing article by Aditya Bamzai on the Bray, Harrison side, anyway.
Dan: The conservative articles are amazing.
Will: Aditya Bamzai's articles are amazing, but this is amazing even for Aditya Bamzai's article. Anyway, that's another big question that a bunch of the Justices are notoriously uninterested in answering. And it's hard to even answer that question, having thought some of the nationwide injunctions questions they also want to answer. And then, the third option is to say injury mumble, mumble.
Dan: [laughs] Which is what the majority does. Getting into the vacatur stuff, which we already talked about, and I don't necessarily want to retread for fear of getting it wrong and incurring my colleagues' wrath. Ron Levin is just three doors down from me.
Will: To be clear, Ron's article is great too. I didn't mean to--
Dan: Was it amazing for a Ron Levin article? But Justice Gorsuch, he cites Harrison, but in a relatively limited way, even though it seemed like his argument follows a lot of the same moves that the Harrison article makes. Am I right about that?
Will: Yeah, I think so. He cites Harrison.
Dan: Three times. But like the first one is a CF. I just felt like maybe it deserved a little bit more credit and then also does not cite the scholarship on the other side to engage with it.
Will: Sure.
Dan: I thought could have been a more article-- could have engaged a little bit more?
Will: I do think this is an unfortunate norm on both sides of the aisle that the Justices in the nondelegation wars and the unitary executive wars, I feel like both sides do this too. They cite all their favorite articles and not the articles on the other side. [crosstalk]
Dan: [crosstalk] -Justice has never cited you.
Will: I realize you hold to different standards. I kind of like Gorsuch's opinion--
Dan: Just explain to people, if he's right, if there is not this idea that you can go to court and say, "Just take this thing-- that some agency that the Executive Branch did take it off the books, they made a decision, they made a rule. Just like wipe the slate clean, as if they never did it." His view is, "You can't do that. You can go get party-specific relief. You can say you don't enforce this against me, or you don't do this other thing that affects me, but you can't just go like with an eraser and take something off the table." If that's right, why does that explain the redressability issue here?
Will: Well, that then focuses on what kind of party-specific relief could Texas ask for? In a way, if Texas can't say, "Don't enforce this rule anywhere in the country," because that would be like broad national order relief and it has to say, ask for some more limited suspension of the rules in Texas, that starts to look more and more like ordering the prosecutions that we want them to do. In this case, in other words, Justice Thomas is saying, you can't use vacatur as like an end run around our other limits on the relief we would order. And that's one of the worries about vacatur nationwide injunctions, is that you use it as an end run around other remedial or standard principles.
One more interesting doctrinal thing going on in this case is, there's this case called Massachusetts v. EPA that was once considered an important fount of state standing written by Justice Stevens. 5-4, the dissent by Chief Justice Roberts, where the court says that states get special solicitude in the standing analysis. And that's one reason they can sue. The majority barely acknowledges the existence of this case. And does not give the state special solicitude. It's just applying the same rules that you'd apply if you were a private person or to get somebody prosecuted. And has a footnote where they know, well, Massachusetts v. EPA is like about the Clean Air Act, [chuckles] it's footnote 6. Putting aside any disagreements that some may have with Massachusetts v. EPA, that decision does not control this case because, there, the issue involved a challenge to the denial of a statutorily authorized petition for rulemaking, not a challenge from exercise of the executive's enforcement discretion.
And that leads both the concurrence by Gorsuch and the dissent by Alito to explicitly say, is it possible that Massachusetts v. EPA has been de facto overruled because it's just going to become one of these cases like Chevron that we just pretend it never happened and everybody knows that you don't cite it? That was interesting.
Dan: Yeah. What do you think? Is there a way to pick it apart?
Will: I think that's very much what's going on. I was following this case somewhat closely because when Sam Bray and I filed an amicus brief in the student loans case, which also involved state standing, part of our general complaint was, "This state standing universal injunctions thing has gotten out of control. This is the latest instance of it. This is the time to say no." We even cited United States v. Texas. We were like, "You could say no there. We should say no somewhere." And we suggested that the court should either overrule or just abandon Massachusetts v. EPA. And this is kind of what I was hoping they would start doing. It's also interesting, there are a bunch of citations in the Gorsuch concurrence, like a citation to Bray and Miller, Sam Bray and Paul Miller, getting into equity, a pull quote about sort of the relationship between equity and injury that comes from that exact citation and quotation was in our amicus brief in the other case.
Dan: But you're not mad?
Will: No, it's great. This opinion came out the week before the student loan cases. And when I read the Gorsuch concurrence, which said a lot of the things that our amicus brief suggested the court should say, I thought it's great that Justice Gorsuch is writing this. The fact that he's writing it in this case suggests he's not going to write it in next week's case. [Dan laughs] Which is fine, which is fine. Sam and I are now working on an article about-- we've been asked to write an article about these state standing cases, especially the student loan cases, but they obviously connect here too as well. So, it's interesting to see the pattern.
Dan: Yeah.
Will: I think as long as you don't judge this as like fed court's doctrine, as long as you aren't trying to put it in the fed court supplement, this is a healthy opinion.
Dan: But you are.
Will: Well, I wear multiple hats.
[chuckles]
Will: I think the court recognized something had gone wrong and it needed to say something has gone wrong and it said some strange things about exactly what has gone wrong. But I'm glad that all but one of them agreed that something had gone wrong.
Dan: Yeah. Now, do you think this case among others is cementing Justice Kavanaugh as the swing Justice? I mean swing is-- maybe that's not-- people are going to get real mad by saying that because he's like, "Oh, he's half the case is liberal, half the case is conservative." But the fulcrum of the court, if that's fair.
Will: Well, I do think Kavanaugh and Roberts travel together. [crosstalk]
Dan: Yeah. I do think maybe they can't pick just one of them.
Will: Right. But yes, I do think it's cementing-- I mean I think this case, Milligan, which we talked about last episode briefly, Moore v. Harper, which I'm sure we'll talk about soon, I think the Kavanaugh-Roberts axis is in control.
Dan: This is a broader conversation, but do you think there is a certain amount of gravitational force towards somebody on the court doing that? Maybe not swinging fully to the other team, but if near a court, there's an ideological divide on the court that maybe you like being in the middle of the court. You're seen as the O'Connor, the Kennedy, the important person. Maybe for certain Justices, not everybody, but maybe that makes them drift just a little bit, just so that they get that attention. They're in that special sweet spot.
Will: I think something different-- I don't know--[crosstalk]
Dan: [crosstalk] -you don't have to say it about Kavanaugh, I know. [crosstalk]
Will: No, but I think there's a different phenomenon that's at least as important, which is like as the court moves to the right or the left, the people who pick the cases, both the plaintiffs who pick what cases to bring and the four Justices who pick what cases to grant cert on also move, whatever the Overton window, is that the metaphor we use, they also move. Like Texas, this case is way more aggressive than the United States v. Texas of 2015. This case is similar, but way more aggressive. They would never have brought oldest Kennedy was in the court, but now it felt like, "Okay, maybe now it's worth a try." And then, it's inevitable that as you set your sights further and further and further to the right, at some point you shoot too far. And so, at some point you lose-- I mean, it's just like an equilibrium. [crosstalk]
Dan: This is like the Priest-Klein hypothesis.
Will: It is like the Priest Klein hypothesis.
Dan: Law and economic concept, I'm sure you guys talk about every day at UChicago. The idea being that I think, early people looking at the courts empirically, they're like, "Oh, it's really interesting that these cases, trial cases seem to come out 50-50. Plaintiffs win a lot, defendants win a lot. Isn't that weird? What does that tell us about courts?" And Priest-Klein hypothesis, early on econ, they come in and say, "Well, there's case selection. People choose what cases to bring, what cases to settle. And so given that, you should expect that the cases that actually get litigated to be the ones that are on average, close calls." They could go either way.
Will: Yeah, I think so. Some people, you might have naively said, "Oh, look, these courts must be fair because the cases are all 50-50. People say this is a really pro-plaintiff court, but it's 50-50." But what you don't know is that the reason it's 50-50 is because it's such a pro-plaintiff court that you only-- you settle all the time, or the same thing in reverse. Yeah, this point is not original to me. That has got to be a fundamental truth to the Supreme Court. It's because the Supreme Court selects its own cases and it knows its own membership, the selection of the cases has something to do with the court's knowledge about its own membership. And that makes it very, very hard to do basic things like say, "Oh, look, the court has all these 5-4 cases. Therefore, it's really centrist," or whatever because the court picks the cases in part based on its knowledge how they're going to be. Somebody has to end up in the middle, and as the cases move to the side, somebody ends up in the middle. It may well be the psychological thing you described is also part of it. And this I was just going to mention, Orin Kerr reported on Twitter.
Dan: That's where I was going. [crosstalk] You do it.
Will: Orin Kerr reported on Twitter some remarks that Justice Kavanaugh gave, I think, to the Eighth Circuit Judicial Conference, that one consideration he said that we, whoever that is, use in thinking about cert and one explanation for cases the court has not granted, is the court thinking about, if we grant this case, will we be able to contribute something? And it's a little unclear that's just can we get to a majority rule, or is it going to end up like Mallory? Or are we going to a majority rule that makes any sense? But thinking ahead to the merits.
Dan: Yeah. I found this, and I think you did too, pretty surprising based on what we understood that the cert process to look like. Because my impression from clerking was like, look, they talk about a lot of cases at conference. The memos direct them, cert memos direct them to whether there's a split. But my impression was that for most cases, the discussion was pretty cursory, and I certainly didn't think that they were having a discussion about the merits of the cases at that stage, let alone kind of, "Let's break it down into can we come up with better rules?" I didn't think that, but maybe I'm wrong.
Will: Yeah. Well, I don't-- this is second hand and a little vague. So, I don't know whether Justice Kavanaugh's reporting at conference, we pregame the merits, or whether it's more like, I don't know, there are specific issues, like the court stayed away for a long time from the waters of the United States question about which it had split before. I think even as new splits arose, and probably there was a sense of like, "Boy, last time we got into this opinion, we couldn't do anything." But I was thinking one difference is-- it's maybe a difference in having a court with one well-identified swing Justice who is relatively confident in their own views versus a court with maybe a swing coalition, if we want to call them that, a middle coalition of 2-3, and even some shifting, like Alito was the central Justice in Mallory, sometimes it turns out to be Gorsuch in some other cases. So, maybe when that happens, maybe a couple of Justices at least have to talk about whether they-- Justice Kennedy didn't have to ask himself whether he was on the same page as himself or whether he thought that he knew what he was doing. So, maybe that's part of the change, I'm not sure.
Dan: Yeah. I don't know. There's also been a big decline in-- we don't need to get into this, but a big decline in the number of paid cert petitions that are being filed.
Will: This is the Priest-Klein hypothesis.
Dan: Well, just a decline in very recent years. Why is that? That's not Priest-Klein.
Will: Well, as the grant rate goes down, the number of requests might also go down because the costs of filing and losing are much lower, are still asymmetric. But as the grant rate goes down, you might well on the margin decide not to file anymore because the odds of a grant are so low and costs are not worth it.
Dan: Okay. So, we've got a disagreement among most of the court about-- they agree that the bottom line, disagree on the rationale, where 5-3 on that and then we have a lengthy dissent by Justice Alito. Justice Barrett also has a short concurrence in the judgment. Did you have anything you wanted to say about that one?
Will: No, I see this as-- I'll say, hers is an example of a narrower ground. So, she also has the its redressability without getting into the vacatur stuff although she joins Justice Gorsuch on the vacatur stuff.
Dan: Yeah. I couldn't quite figure out why did she need to write separately if she's with Gorsuch and everything?
Will: I mean, it's just a narrower-- It's a more doctrinal opinion. It's like this is in the wrong boxes. It may well be she wrote it first and then joined. It's the one that most clearly cleans up the boxes. And I guess we know the theme from this and her Mallory dissent is her interest in doctrine and her interest in--
Dan: Okay, well, this has been one of our longest recording sessions. We're now past two hours. Hopefully, the editor will be able to clean this up a little bit, tighten it up. But for those of you who have been complaining about our vacations-
Will: We're back.
Dan: -there you go, and there will be more. I'm willing to make that promise.
Will: That there will be more episodes? This will not be our last episode of all time?
Dan: Soonish.
Will: That would be the ultimate Divided Argument move. One day, we're going to stop the podcast. We're not going to tell anybody. It's just going to--
Dan: But then, we'd, two years later, release like 28 episodes in a row. I don’t have in front of me, but someone on Twitter was like, "You guys would do a lot better if you didn't intentionally make a bunch of choices designed to sabotage your ability to have a bigger audience," which is fair, tough, but fair.
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Dan: Okay. Well, thanks very much for listening. Thank you all for bearing with us during our long hiatus. For those of you who are still listening and didn't unsubscribe, please check out our website, dividedargument.com. We have transcripts of the episodes available pretty shortly after they go up. Email us at pod@dividedargument.com. We read all feedback, even if we're not always great about responding. Leave us a voicemail, ideally in song form, 314-649-3790. You can buy merchandise at store.dividedargument.com. And please leave us a review on your podcast app of choice, or in particular, the Apple Podcast app.
Despite our seeming indifference towards growing our audience, given the choices we're making, we do actually want more people to listen. So, please do continue to leave us reviews and also to tell other people about the show, send it around, do things that would increase our listenership despite our best efforts to the contrary.
Will: We've gotten several reviews that are both positive and funny recently, which I especially appreciate the combination. Maybe we'll talk about those sometime soon. I recently bought a shirt on the Divided Argument store. Another good way to tell people about us.
Dan: I could've gotten you one for free.
Will: Well, that doesn't seem fair.
Dan: You're just funneling money to me because I've been getting the profits, such as they are. Profits are very, very minimal. And in theory, should be funneling half of them to you, but one day we'll do so.
Will: I don't want to get involved in some ethics scandal. [chuckles]
Dan: Fair. Okay, I do. Ethics for thee, but not for me.
Will: And thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: All right. And if there's a long delay for our next episode, it's because we have been detained by the federal government at the request of the state of Texas.
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