We reflect on the Supreme Court term as a whole, and the direction and politics of the Court. We focus on West Virginia v. EPA, which canonized the "major questions" doctrine, and the upcoming case of Moore v. Harper, which confronts the "independent state legislature doctrine."
We reflect on the Supreme Court term as a whole, and the direction and politics of the Court. We focus on West Virginia v. EPA, which canonized the "major questions" doctrine, and the upcoming case of Moore v. Harper, which confronts the "independent state legislature doctrine."
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Will, it's been, I think, a medium length amount of time since we recorded and a fair bit has happened since then. Some of which has taken me a while to process, maybe that's partly why we haven't recorded in a bit. So, the court finished up the term and released a bunch of big opinions after Dobbs and Bruen, which we talked about last time. And it's been a big term. How would you describe this term, now that we've seen the biggest cases?
Will: I do think every term always seems big at the time with a couple exceptions, but I think we could call this seismic. A lot of conservative victories in a lot of important cases. And the court does not appear to be reticent about overruling precedent in making law.
Dan: Yeah, I think absolutely this is a very conservative term. The court often sort of at the end, you sort of look at the term and it has served up some wins to both ideological sides. And here, it's not like they're none wins for the progressive Democratic side to the extent you can characterize cases that way, but not a lot in terms of the end of the term. The court, 5-4, said that President Biden could end that Remain in Mexico policy, but otherwise, a lot of really big, really big, really sweeping victories for the conservative side, although maybe calling it conservative is a little bit misleading because some of these decisions, I think, are not conservative. They're aggressive, they're maximalist, they're changing the status quo quite quite significantly.
Will: I think Biden v. Texas might have been not 5-4 exactly on--
Dan: Yeah, because of Justice Barrett—
Will: Justice Barrett thought there was no jurisdiction-- [crosstalk]
Dan: Yes. In one sentence, she says she agrees with the merits. That's the sentence that the other Justices-- the part of her dissent that the other Justices do not-- [crosstalk]
Will: [crosstalk] -the majority with the merits.
Dan: Yes. I mean, if on the merits, yes, it is 6-3, but--
Will: And on the lawsuit, Texas’s lawsuit fails, she thinks, because that--
Dan: Yeah. But nonetheless, it's a 5-4 decision. Okay. I can [crosstalk] call it a 5-4 decision.
Will: I think there are two things going on at the same time, both of which have probably happened before, but these two things happening at the same time. One is the scorecard. How many of the important decisions lean right or the left, and whatever label want to give to them. And other is, how far they go, some of that stuff we saw last week, but everybody knew that Mississippi was going to win Dobbs. Even under many different Justices, Mississippi would have won Dobbs. But to win Dobbs by overruling Roe, that wouldn’t necessarily have happened if Chief Justice Roberts was still in the middle of the court. Same thing in Bruen’s, same thing in a lot of these cases. So, I think those two things together as things that Justice Kennedy used to stop, he used to rule for both sides more often. And he used to exert the brakes a certain amount on how much damage the decisions would do. So, my main thought is, “Well, we really don't have Justice Kennedy to kick around anymore."
Dan: Yeah. I think that looking at how sweeping the decisions are, is maybe more important, because, as you know, in terms of who wins, the cases aren't assigned randomly. Justices pick their cases. And depending on how they select them, that could lead to a distribution where one side wins more than the other. But they have control over how broadly the opinions are written, and these are some really, really broad opinions. And I confess to being a bit dispirited at the end of the term. Not exactly because the decisions are uniformly conservative, maybe, again, not the right word. Not exactly because of that, but more because it seems like we really have a court that really seems to be very comfortable with just pursuing what I see as the Republican party platform and Republican agenda and doing so aggressively, in a fairly shameless way. And so, we have a court that looks more partisan, I think, than the court has ever looked before really divided along party lines, not just along ideological lines, and a majority that seems pretty eager to impose its vision on the country in pretty profound ways. If you think about how much the court has changed just in the last few weeks, abortion is now illegal in huge swath of the country. Some form of school prayer is now permissible. We'll talk about exactly how much and how much that changes things. A number of states can't have their regimes restricting concealed carry. These are big wins. They're not just wins for a particular vision of the law. They're wins for a particular vision of American society, and one that is held by Republicans. The fact that the court seems so eager to run full steam ahead concerns me.
It concerns me when you combine it with what the court appears poised to do, in cases involving election. The one thing we want to talk about today is how the court granted cert on a case presenting a question about the so-called independent state legislature doctrine, which could be depending on exactly how it comes out, could be quite consequential and could contribute towards what I think you can call democratic lockdown, how assisting what I see as Republican efforts to really lock down the electoral process in ways that entrench Republican rule. And so, you combine all those things, I'm troubled. I'm troubled. You, as always, I'm sure are going to tell me everything is great, and nothing to worry about, and everything's fine, and they're just doing law. But why don't I give you the opportunity to try to calm me down?
Will: Well, look, I don't want to spot you everything you said there, and we've got to talk about a lot of it. But I'll say two different things about how I look about it. I'm less troubled by the decisions, but I am troubled by the appearances. Even if I think you're wrong, and even though I'll spent the next hour of the podcast trying to convince you that Justice Gorsuch was right to abandon the Lemon test, that still doesn't fix the appearance even though I think it's unfair about the polarization of the court, and that that can become self-perpetuating, that can become destructive regardless whether it's true or not. It's always it's almost easier if it's true. If it's true, then it's easy for me to say, “Look, the court should stop being so partisan.” If I think the court is not being partisan, but it's getting crap as if it was, then why do I think the court should do about it is really hard.
I just want to flag though, is it's possible that in two years, we'll be a little calmer about this, it's possible to be worse, but sometimes you do see this effect, like when the personnel of the court changes, when the midpoint changes, there is a short-term settling of scores, where a court suddenly reaches out and makes a bunch of law that the previous median Justice was holding them back from. It's like when Justice Kennedy moved to the swing vote away from Justice O'Connor to get five, then you get parents involved, and Heller and like a string of cases back then that really moved a lot of the right. But it's not every term was like that for the next 10 years. Like we found out--[crosstalk]
Dan: Yeah, although my view is this is fundamentally different because of the personnel changes. This isn't just an incremental move to the right. This is a move very far to the right where now the median Justice, Justice Kavanaugh, seems very eager and happy to--
Will: That's what we'll learn about Justice Kavanaugh is how big is the gap, it could be Bruen as a one off, it could be that Justice Kavanaugh’s concurrence there saying, like, “Look, we're striking down these, but we really are going to leave alone the laws of 43 states and most of the stuff,” could be that’s the way it's going to go, it could be not.
Dan: It could be.
Will: Same thing for West Virginia v. EPA. I'm not constantly predicting that this is a one off by any means. I think it could well be that the end of affirmative action, and the end of federal Indian law next year are going to make this year look tame. That's the thing I want to flag before we get into it.
Dan: Yeah. Just another thing to say about that. As our listeners know, I've written a lot about Supreme Court reform. Mine and Ganesh Sitaraman’s first article and really dove into that set of questions. A big part of our claim for why we need reform was as follows. The process has changed, the stakes have risen so much, we now have partisan capture of the court, where each side is really good at selecting Justices who really track ideology and preferences of the party of the appointing president, and we're seeing the demise of the Justice Kennedy type, Justice who really are, in some sense, in the center. And in a world where we see the court has just aligned with one partisan political party, faith in the court is really going to diminish, and that's going to have long-term negative consequences.
This was back in-- I think, we first wrote this in 2018, and this was right after the Kavanaugh confirmation. A lot of people said, “Oh, you're wrong. There's no legitimacy crisis. This is just business as usual, and the Justices are just doing law.” Honestly, I feel vindicated. I feel things have played out exactly as I thought that they would. Confidence in the court is at the lowest point it's been in a very long time, if you look at public opinion polls, even those conducted before Dobbs, and I think it's likely that the public opinion post Dobbs will demonstrate more declining faith in the court.
And so, our claim was that to have a court that commands the respect to the country, it doesn't have to make any one group of people happy all the time. That's just not possible. But people do need to have faith, that they're making decisions fairly, and that you're not going to always be able to predict who's going to win in those cases, because it's not going to just be controlled by partisan ideology.
I think that was the thing about Justices O'Connor, Justice Kennedy, those Justices who were at the middle of the court for a long time, is they had their preferences. They were both appointed by Republicans, both conservative in a lot of ways but their views didn't always track what Republicans wanted. And I think a system, you have to be willing to have a system of dispute resolution like this, people have to be willing to believe, “Look, even if I didn't agree with the result, I got a fair shake." And I don't know a system where we just have the Republican Justices doing the Republican stuff, I just don't think it's going to command that kind of respect from people anymore.
Will: I agree that you feel vindicated, but I'm wondering about the nature of that vindication. Do you think you merely predicted or observed this trend? Or, do you think you also helped cause it? I'm thinking like you starting the conversations about court reform, and really putting it on the economic map, of course, ends up putting them in the minds of some of the candidates in the presidential primaries, so that ends up putting it on the presidential debate. That ends up giving us a presidential commission to the Supreme Court. If you hadn't been part of that movement four years ago, do you think we'd have the same legitimacy crisis now? Or, do you think people would be slower to wake to it?
Dan: I don't want to give myself too much credit here, because I think that that was a conversation that was going to happen no matter what. And to the extent that we did anything-- first of all, there had been drawing on conversations that have been going on for decades about, “What's wrong with the court, let's reform the court in various ways.” I think that what happened was we both anticipated where the court was going and thought, which I think was correct, that this is going to be a set of topics that is going to be inescapable in the coming years. To the extent that we change things at all, and I don't make the claim that we did, I think maybe we just encourage that conversation to start a little bit earlier maybe than it would have. I think that if it hadn't happened then and I think it would have anyways, I think there's other people writing about this. There's people like Sam Moyne, Ryan Doerfler, Chris Brigman who are arguing for different kinds of flavors of court reform, various folks writing about term limits. Even if that weren't the case, I think that we would see now what was happening a couple years ago, that conversation will be starting in earnest now in light of what's going on at the court. I think a lot more people think that maybe thinking along those lines is important.
And we tried very hard to make our argument in a way that was not just this is going to be bad for Democrats, or Democrats need to seize control. It was really what we said was, you need to design a system that appears fair to people and doesn't just involve decision making by each side's preferred hacks. I mean, very smart, very brilliant hacks, you won't think that they're hacks. I'm using that term advisedly. I don't really think that we can describe them as hacks, but you know what I mean.
One of our reform proposals, the balanced bench was basically modeled after the civil arbitration, where you have arbitration and one very common way for it to work is you have two parties, they're arbitrating the dispute, they each get to pick one arbitrator for their side who's going to basically always vote for them. And then, those two have to collectively agree on some other person who's the fair person who actually decides the dispute fairly, and that person has all the power. That's not a crazy way if the court is going to be this institution that decides these important questions, isn't that crazy way to figure it out your work. Seems certainly better than just letting one side get more arbitrators, depending on somewhat semirandom events.
Will: Yeah. I'm with you on appearances. I think, in some ways, also the calendar and the report, like the court had a lot of cases that weren't the 5-4 lineups, some of which were important that we've already covered earlier in the term, some of which are going to be lost in the shuffle in the last week because they're not as hot button as the cases we're going to talk about. Maybe it's just unfortunate that the court granted the school prayer case. Or maybe it's unfortunate just the way the cases get sort of parceled out and reported, because I do worry-- I guess this is going to get much of our readers mad at me again. But I worry that a lot of critics of the court are still being premature and fearmongering. As big as this term was, I don't think there's any case in which the court struck down an important federal statute, or even I guess, West Virginia v. EPA is the only one striking down an important federal nonstatutory policy. But as between West Virginia v. EPA, and Biden v. Texas, the government's own view of West Virginia v. EPA wasn't the case was totally irrelevant, and the courts didn't need to rule on it. Whereas Biden v. Texas affects like a huge number of vulnerable people.
Dan: Yeah. Although West Virginia v. EPA has more-- the government's view was that, like the policy in question was off the table. But I think the reasoning in that case is going to have pretty big implications going forward, right?
Will: Yeah. Could be. I mean, it depends on what the government's going to do, which they haven't told us yet. And now, I guess they're going to do something different, maybe. What I think of as the New Deal paradigm, the argument for court reform is especially strong, I think you'll agree with this. It's especially strong when the court is standing in the way of Congress, like Congress wants to do things, and the court won't let them.
Dan: Yeah. I think-- [crosstalk]
Will: And that's happened. I just noticed that that's not this term.
Dan: Yeah. I think that's fair, and I think that that is very far from the Dobbs situation where the court is refusing to get involved in overturning state laws. It's very different from, “Are we worried about the Justices coming in and telling the federal government can't do some-- telling Congress, it can't do things he wants to do." But we're also seeing the courts step in and tell states that they can't do other things, that they can't regulate concealed carry in the way they want. And I do think-- we'll talk about West Virginia v. EPA in a moment. A decision like that is, again, pretty broad, seems to have a lot of implications for the administrative state seems part of a larger project aimed at really reining in, and I don't know, maybe destroying the administrative state, which I think would be crazy, shocking, unjustified, radical transformation for American society.
Will: And that would be the New Deal paradigm. I would like to be able to save the most aggressive court reform proposals for the time when the court is going to take the democratic process away from Congress. [crosstalk]
Dan: Well, they're going to just take it away from voters, so-- [crosstalk]
Will: So, you're going to tell me that we can't, because by the time the court takes over the democratic process, it'll probably consuming power forever, and it'll never be possible to do it again, or something. But I would like to keep our eye on the ball, I guess, and I'm worried we're not going to do that.
Dan: Fair, although let's say two years ago, I had said, “Here's where things are going to stand in July 2022. The court will have already overruled Roe. They will have done this. They will have done that.” I feel like you might have said, “Oh, that's a little too aggressive, probably court will be moderate.”
Will: I don't know. I mean, maybe. I think a lot of people predicted when Amy Coney Barrett was confirmed that the court was now going to overrule Roe. And I think I thought that Justice Kavanaugh might not go along with that, but that he might or that surely, he would go along with that-- [crosstalk]
Dan: Do you think it would happen this quickly? This is pretty quickly. This is her first full term. So basically, really, as soon as they had the votes, that they were sure they were going to do it, they found a case, granted it, decided quickly. Let's not delay.
Will: Fair enough. I think you can get the tapes on me on this. I think you're right that when Dobbs was first granted, I thought like, are they really going to overrule Roe this fast? My initial reaction was no. [crosstalk]
Dan: No, your initial reaction was good. You looked at it carefully and you're like, “You know what, this QP--” I'm thinking more like four-- [crosstalk]
Will: But that's [crosstalk] grant. I didn't think like, “Oh, this is coming in a day now. They're going to grant the overturning Roe." So, I think he's probably right, that we only saw this coming a year away and not two years away.
Dan: Yeah. I don't know. There seem to be no signs of the court slowing down. And I thought this term was maybe surprisingly aggressive.
Will: I do feel like Justice Kavanaugh has been trying to give us signs that the court is slowing down. We may not believe them, but I feel he, in Dobbs, tried to write a concurring opinion saying, “Don't worry, we're not going that much further.” In Bruen, he wrote a concurring opinion saying, “Don't worry, not going out further.” In Biden v. Texas, and Torres v. Department of Public Safety, he wrote for the government. He may not be in control of the train or he may not be telling the truth. But I do think he is at least trying to hold up a sign saying we're slowing down.
Dan: But that’s the thing about having a 6-3 court, is for any given case where you don't even need all the conservatives to be on board to do something aggressive.
Will: Sure. Although has there ever been a case when Roberts was on board, doing something aggressive that Kavanaugh was not?
Dan: Maybe we don't know, because there could be such cases happening inside the court and then they're shuffling.
Will: Fair enough.
Dan: It wouldn't surprise me if Chief Justice Roberts reads the tealeaves and sees Kavanaugh is maybe going a certain way, maybe he wants to go in that direction too. I don't know.
Will: I don't believe he does that ever.
Dan: You don't believe anything. You don't believe that any of them are ever acting in-- you don't seem to believe any of them ever take anything into consideration that's not the pure law.
Will: No, I think a lots of them take things seriously, not the pure law. And I even think there are some shufflers on the court. I think Justice Kagan is definitely a shuffler. I think Justice Kavanaugh is probably a shuffler, Justice Kavanaugh’s probably a shuffler, but I don’t only believe-- [crosstalk]
Dan: It's only even possibly critical thing you've said about Justice Kavanaugh ever.
Will: I criticized his decision in Bluman v. FEC way back when.
Dan: Okay, so you criticized opinion of his when he was sitting in as a district court. Okay, great.
Will: And I think his vote in Torres v. Texas Department of Public Safety, which we're not going to talk about the sovereign immunity case is totally wrong. And then his comments oral argument about how unfairly Vietnam War veterans are treated what were legally irrelevant. And I was very disappointed in his performance in that case.
Dan: Well, I don't have a transcript in front of me. I just remember what you said about him when he was appointed, you were just gushing with praise.
Will: I think what I said is that if he wasn't confirmed, it'd be a travesty, and I stand by that. [crosstalk] -a lot.
Dan: Okay. [crosstalk]
[chuckles]
Dan: We should probably not take that dive to the Kavanaugh stuff. Okay, so that's the mood.
Will: I’ve got to say, Dan, I was really worried you're going to tell me you're quitting the podcast. Larry Tribe quit his treatise, when the court took this, like-- what he thought was a hard right turn 20 some years ago, was like, “I just can't do it anymore. The court is so conservative, I can no longer describe its work product in fairness and logic.” And I thought I was-- every day I was like you're going to text me and say, like, “I just can't do a podcast about the Supreme Court anymore, because it's just so bad.”
Dan: No, I like the attention too much. No, I mean, it does raise this question. How does somebody like me think and talk about the court? If I have this complicated view of what they're doing, there's some things that they're doing that strike me as more technical law stuff and to some degree, we'll probably talk more about those smaller things that are a little bit more in our wheelhouse. And I also just, dispositionally, I'm not ever going to be a person who just is spending most of my professional energy, saying how bad they are, and how it's terrible and rallying the partisan troops. That's just not who I am, and I think that there are people who are good at that and for whom, that's a more natural role. I think everybody chooses the way that they engage in the way that they can effectively engage.
I also don't want to just be like, “Okay, well, this is all just business as usual. It's all just being driven by how closely people read the Baude articles before deciding the case," or whatever, because I do think it's more complicated than that. I do think that there's a lot of, for lack of a better word, partisan agendaism, that shaping what the court is doing. I think I need to go say that too.
So, I don't know what to do with that podcast wise. But like you said, “Okay, well, we can do the big episode about where the court is, or we could just do a smaller ball episode where we talked about the technical cases,” for this episode. I can't do the second thing alone, because that seems to ignore what's really going on, but maybe that-- [crosstalk]
Will: Yeah, I was happy [crosstalk] going on, but I understand.
Dan: Yeah, so I don't know. That's where we stand. Not quitting.
Will: Good. All right. Should we talk about we're all going to die of lung cancer, or about how we're all going to be in Christian-led prayer circles in the football field?
Dan: Lung cancer or climate change?
Will: I think the lung cancer effects are probably more-- I think, in fact, it's probably has more relevance to lung cancer than climate change, but I understand it was billed as a climate change thing.
Dan: Okay, maybe let's start there, West Virginia v. EPA. And I'd love to, after we set up the case, maybe come to what I thought was a great op-ed by Adrian Vermeule, who's, I think, fairly described as a conservative, but one that has a very different vision of the Constitution and what the court should be doing than you do. He's an anti-originalist. He thinks originalism is silly, and so--
Will: He calls it an illusion like 91 times in his new book, Common Good Constitutionalism. I consider myself an illusionist. All right, so West Virginia v. EPA is ultimately a statutory challenge to the EPA is Clean Power Plan more or less? That's part of the-- [crosstalk]
Dan: Are you talking about administrative law because both my colleague Ron Levin and John Adler were always like jumping into my metaphorical DMs or my literal DMs to tell us we got it slightly wrong. But I think this is a little bit confusing, because you have the Obama administration that has a Clean Power Plan. And then, you have the Trump administration that gets rid of that and--[crosstalk] hmm?
Will: Puts in the ACE rule, right?
Dan: Yeah. A different plan that's much not aimed to accomplish the kind of goals, the climate change prevention type goals that the Obama administration Clean Power Plan was going to do. And then, we now have the Biden administration sort of coming in and saying, “Well, we're not going to do the Trump thing, we're also not going to do the Obama thing. We're still figuring it out. Give us an extension.”
Will: Right. In fact, the DC Circuit had ruled against the Trump administration, who was against the Clean Power Plan. So, the DC Circuit had invalidated the repeal of the ACE rule and thereby perhaps resurrected the Clean Power Plan.
Dan: Yeah, but the Biden administration was like, “We're not doing that.”
Will: Right. But in a way, I was trying to skate over those, as I understand the case, once it gets to the Supreme Court, the question the Supreme Court decides to ask is, was the Clean Power Plan lawful? That's the question there. There are many things weren't on the case, and maybe that's the wrong way to frame the case, but that's ultimately the statute interpretation question that they have plucked out of the case.
Dan: Yes. through the lens of I guess, it would be relevant to whether the precision of that plan was permissible, like it to be good reason to say that was fine if the original plan was illegal, right?
Will: Right. And at a minimum, a good reason to say that even if there's something wrong with precision of the plan, you can't put the old plan back into effect if it was illegal.
Dan: Yeah. We should talk about that posture a little bit maybe just because there is, I think, a fairly strong argument that the court should not have heard this case at this time. Why is the court stepping in to decide these questions in a world where the Biden administration has said, “We're not going back and doing that. Let us go back and figure it out”?
Will: Well, there's an Article 3 way to ask that question and like a prudential way to ask that question.
Dan: Yeah. Why don't you do-- you're Mr. Article 3.
Will: Yeah. So, I spent time on Article 3 one because I'm now had to do this fed court supplement for the new Wexler case book, which I'm joining-- [crosstalk]
Dan: Did you getting in and did this case come in and time for?
Will: Yeah, well, we delay the supplement until July 8th, so we can get all the Supreme Court cases and that's why I was so nervous when I thought the Supreme Court is going to go until like July 15th. [chuckles] [crosstalk]
Dan: Everyone else cares about what they're going to decide, and you're like, “I'm worried about which day it comes out, because it'll screw up my workflow.” That's great.
Will: On the Article 3 grounds the court correctly says the test for mootness is much more lenient than the test for standing, this is from the current doctrine. And so as long as this was like a live thing at the beginning, the fact that partway through the through the litigation, the government says, “Oh, well, we're not going to do this anymore,” very rarely moots the case. And that's just right. And even the dissent agrees with that. The dissent is like, “Well, [unintelligible [00:28:09] standard is really hard to satisfy. So, yeah, I guess the majority might be right about that." But then, you could still ask, “Why is the court hearing this case, if in fact, doesn't matter?”
Dan: That's a really good question. Why are they deciding the legality of a plan-- which by the way, they prevented from ever going to effect through your shadow docket way back in 2015-2016, I don't remember exactly when. Why did they have to decide the legality of that plan that nobody says is going to be the law anymore?
Will: Right. I'm tempted to just concede they shouldn't have done it and let this be one of the places I can earn credit criticizing the court. But which way do you think the shadow docket thing cuts? Because you might think, like the shadow docket thing was the time back in the naïve days of 2016 was like one of the most aggressive things I've ever seen on the shadow docket. Now, it wouldn't even rate. But that was the court by a 5-4 vote, not staying a lower court ruling, but staying at administrative regulation that the lower courts had not stayed. Now the court again does this all the time. This is like technically-- yeah, this was the OSHA case, the [unintelligible 00:29:11] Rights Act. But at the time, it was a big deal. It was an especially big deal because of the very unfortunate timing that Justice Scalia provided the fifth vote to stay the regulation and then died so that they probably-- maybe they would have heard a case about it back then, but it seemed imprudent to do so because of the 4-4 court. So, you can imagine feeling a certain amount of like obligation--[crosstalk]
Dan: Imprudent only if you think that-- I mean, because the people who granted the stay, wouldn't have gotten their preferred outcome.
Will: No, my sense is that everybody on the court thought that trying to minimize the number of like 4-4 splits was a good idea. We saw the compromises in various cases and that it's wasted parties time a huge amount to litigate a big issue where nothing's going to happen. I don't know, maybe that diminishes confidence in the court or something. So, you can imagine feeling some obligation now to having issued this unreasonable stay of the Clean Power Plan that made a big deal. Maybe they feel some obligation to finally explain why they did what they did.
Dan: Seven years later, I don't know. Maybe in theory, that's true as a general matter. It doesn't seem to provide a reason to reach out, decide a case that doesn't need the court's intervention, and then to do so in a very aggressive way that will have long-term consequences. I don't know.
Will: Okay, then the other thing is I'm not sure it was unnecessary. As I understand it, maybe this is the posture comes in. The DC Circuit at first purported to bring back the Clean Power Plan. And then, only when it became obvious how likely the Supreme Court was to want to intervene and stop that, did the DC Circuit stay its own mandate on that point, and the government said, “Well, maybe you shouldn't do that.” So, there might be a weird dynamic effect where sure, once it became clear that the court was going to reverse that it became unnecessary for the court to reverse. But yeah.
Dan: But those things still happened.
Will: Yeah.
Dan: It just seems if whatever the court has ensured that this isn't going to go into effect through its actions or through its anticipated actions, then you don't need to worry about it and let's just take the case next time it comes up.
Will: Yeah. I'm more sympathetic to that. I think there is this worry that if you do that all the time, it really allows people to play games with the court. You do aggressive things, and then if the court looks interested or grants review, then you say, “Oh, never mind, we're not going to do them this time.” And the court says, “All right, catch you later.” [crosstalk]
Dan: Although here, it's a different administration. It's the Obama administration. You shouldn't treat Obama and Biden as if they're totally the same.
Will: I guess.
Dan: It's not like someone drafting a plan in 2021, and then backing off immediately once cert gets granted in 2022 or something.
Will: Yeah. And that's as much as I'll-- I don't feel strongly if the court [unintelligible 00:32:02] to decide this case. I worry that some people on the court thought this was a good vehicle to say things about the major questions doctrine or nondelegation doctrine they wanted to say, that they let that drive the grant.
Dan: Yeah. Let's talk about that. Basically, and again, I'm going to mangle this, the question is up being, does EPA have a statutory authority to order generation shifting, I think, to address carbon emissions. Basically, to say, we should move power generation from certain kinds of high carbon power production to other forms of power generation, under a specific provision of the Environmental Protection Act. And the court says no, but in the course of doing that, lays out what you said, major questions doctrine, which is a thing that had arguably been in the cases prior to this, and there's a debate about this in the case, but at least articulates it in a probably a broader and more clearer way than it had ever been articulated. The idea basically being that the court is going to-- it's unclear whether this is how much of an assumption, what needs to displace this assumption, but basically, the court is going to be very skeptical of the argument that the idea that Congress told an administrative agency to do something that's a big deal without like Congress, specifically saying, “We want you to do this thing, this exact thing,” that's a big deal.
Will: Yeah. I'm probably going to get really embarrassed myself when I try to use this phrase. Am I wrong to see this as a like Chevron vibe check? You've got statutory term, you've got the interpretation of it. But then you just you just ask yourself, like, this just seem like something's off here. This is not the thing that was supposed to be the domain of the statute, even if you can parse best system of control technology or whatever.
Dan: Yeah, it's not exactly Chevron though, because it's not asking whether this is within the realm of reasonableness. It's sort of like this is totally off the table. But it certainly--[crosstalk]
Will: [crosstalk] -anti-Chevron. Normally, only Chevron would apply. And then, a bunch of these cases are cases where normally Chevron would apply. And then instead of applying Chevron, the court says it just doesn't feel right to us. It just doesn't feel like tobacco is a something the FDA can regulate, even though it's obviously a drug or device under the statutory definition.
Dan: Yeah. And the court here does not refer to Chevron other than in the title of a law review article that it cites, whereas Justice Kagan talks about Chevron a bit in her dissent. This is a 6-3 by the way, if that wasn't clear already, conservatives versus liberals. It's Justice Roberts versus Justice Kagan’s battle of the strong writers and then we've got a concurrence by Justice Gorsuch.
Will: You're not claiming I'm a strong writer, Dan?
Dan: It's a sore subject. I'm willing to say at this juncture, I've been deeply critical of Justice Gorsuch’s writing style in the past. I've got myself a little bit of trouble. Not really but people thought I was being a little unfair, but he's not a strong writer as the Chief or Justice Kagan. I think right now, in terms of writing ability, Justice Kagan is number one, Chief is number two. And after that, I'm not sure who would you put. Would you agree with that ranking? And who would you put it number three if you do?
Will: I would put the Chief above Justice Kagan obviously.
Dan: Okay, I mean, come on.
Will: [chuckles] No, really.
Dan: Really? He's good. He's just not--
Will: She's too cutesy for me.
Dan: Yeah. That's fair. Could you admit it's close [crosstalk]
Will: [crosstalk] Sure. And then, Gorsuch is cutesy than her. I see that as like a spectrum. [crosstalk]
Dan: But I feel in a way that's just cloying or it's ineffective or something. It doesn't land.
Will: I think Gorsuch is just too cutesy for everybody, which is why people make fun of him. But then also, many of the people writing these things think Kagan is right more often than Gorsuch and the cuteness is especially cloying when you don't agree with the person. So, if somebody--[crosstalk]
Dan: Yeah, but even thinking about like-- so I think some of her best dissents are in nonideological cases. I teach Yates, which is the criminal law case about whether a fish is a tangible object. She's taking the more the pro-government, anti-criminal defendant position there. And it's a great dissent where she has some cutesy stuff in there. She cites Dr. Seuss, but-- [crosstalk]
Will: She is a great writer, but as all great writers do, she has the power to use that great writing sometimes to hide the ball a little bit. And that can be really--[crosstalk]
Dan: Chief does sometimes too.
Will: I've hidden a few. Yeah. No, fair enough. That's true for all of them. I do have a weakness, which I regard as a weakness for Justice Gorsuch’s writing style. I know I'm not supposed to like it, and yet, like, the end of the Trail of Tears was a promise. Gets me every time.
Dan: Yeah, I mean, he's got some lines. He's not uniformly terrible or anything. It has this feel to me of degenerate, second-generation Scalia. It has this feeling of like-- I've taught classes where students write Supreme Court opinions trying to emulate and they're fun for the students. But you get ones where they're just people trying to write like they're Justice Scalia or something and most people are not Justice Scalia. So, it doesn't quite work. And it just has this weird feeling, and he has that feel to me. And there's actually a number of recently appointed Republican lower court judges who I think are doing that right now. It's embarrassing.
Will: I am aware of the phenomenon you describe, and I think nobody-- in a way, we're all degenerate Justice Scalias.
Dan: No, some of us are trying to do our own thing rather than emulate.
Will: Even so.
Dan: Emulate a voice that we can't really capture.
Will: Even so. I think Justice Thomas' writing is underrated. It definitely isn't in those three, but you think about like the rest of the court, I think he writes with just a really straightforward clarity. That's really nice. [crosstalk]
Dan: Yeah, I mean, there's no flashiness there. There's not a lot in terms of lines that will be-- agree with them or not, lines that will be immortal. I don't think--
Will: Absolutely. Right. Exactly. There's nothing flashy about it but just like-- I don't know, you've slogged through some of his hundred-page concurrences, and they're just less of a slog than you would think for them being hundred pages, and often less of a slog than the larger article making the equivalent argument. [chuckles]
Dan: Especially if it's by you.
Will: Especially if it's by me. Sure.
Dan: Okay. This is an interesting one. This is a case where-- and again, I don't think it's worth getting into all the specifics and reading up the statutory language, just because it's going to take too long. But where I think it's fair to say that the majority does not spend a huge amount of time with the statutory text and spends a lot more time thinking about these broader principles, about do we really think Congress would have done these major questions stuff. And then, you have this separate opinion by Justice Gorsuch who grounds this in constitutional nondelegation principle. Actually, the thing about his writing that I hate the most, which is this two L separation of power stuff about how it's so important to protecting liberty and cites Federalist and stuff like that, which I think all the sophisticated scholarship in recent decades has complicated that picture a little bit. And he just recites this as dogma, when it's far more complicated than I think he's willing to acknowledge. But again, it was not really drilling down and saying this is the best reading of the statute instead of saying the bigger principles, which is the thing that conservatives often criticize liberals for doing the [crosstalk] the text.
Will: I'm going to defend Justice Gorsuch to the death. But I'll just start, I don't like the major questions doctrine, and I don't like this opinion. You happy?
Dan: I'm not unhappy. It can take a lot more for me to be unhappy.
Will: Okay. It seems to me there are two questions the court should ask about the statute in these cases, and one is, what does the statute say? Does it say that the agency can do this? That's like a textualist question. And the other is, is the statute unconstitutional? Like if Congress gave the agency too much discretion, does that violate something? Article 1, Article 2. Those are both legitimate questions. And I don't like that the major questions doctrine seems to be neither question, and not super clean about how much it's borrowing from each of those two questions. So, I like my statutory interpretation to be clean and textualist, and I like my constitutional interpretation to be done sort of like separately and forthrightly and defended as US Constitution interpretation. I don't like the mixing of the two, I think the majority is right that this is something that the court had done before in a number of cases all of which it cites, and the people that have recognized a pattern, and they're correct to recognize that pattern. So, I think it is being faithful to this string of, I don't know, it's five cases of doctrine. But I didn't like any of those cases, and I like them even less once they get a label.
When I took my first class on general statutory interpretation type principles, Brown & Williamson was the example that the instructor used over and over again for how the Conservatives were sometimes unprincipled. He was a conservative, he was a textualist, and his case that like as a textualist, he wouldn't go with was Brown & Williamson. So, that's how I came up on that. And I don't exactly like, like King v. Burwell, I don’t think that was right. Didn't really think Alabama Association of Realtors was right. So, it seems fair that this is now the court giving a label to thing they've been doing in their worst statute interpretation cases.
Dan: Okay, I think that makes a certain amount of sense. I don't know where you would come down on-- Okay. Let's say they answered the two questions in a more clean way where you would come down on it but maybe we should try to separate them a little bit and then set up Adrian's criticism. As you said, the court is mixing them. Gorsuch is saying, “Well, we have to have this doctrine because of these concerns about delegation about giving too much power to these unelected agency bureaucrats, which is-- criticism, I think, is a little bit overblown, especially when you think about the alternative seems to be like letting totally unaccountable Supreme Court Justices dictate these decisions. But yeah, that's the sort of way the argument goes. And then, you have Justice Kagan in dissent who's sort of saying, “Look, the statute is pretty clear. It basically says that the EPA can come up with the best system of emission reduction, and the best system could be generation shifting." But then also, she's criticizing this nondelegation doctrine that the Justices are inching towards reviving or creating.
Will: It is a little-- at least on the text for a second though, it's a little weird, though, to think like, okay, you run a power plant, and you ask some egghead like, “Okay, so I want to do emissions reduction, what's the best system emissions reduction for my power plant?” It'd be a little weird if the guy came back and was like, “Yep, I've got an idea. Take your power plant offline and build a hydro plant. That's your best system of emissions reduction.” You'd be like, “That's not a system of emissions reduction. [chuckles] That's just doing something else.”
Dan: Yeah, but the EPA is the one-- It's a different question. You've just changed it by saying, if the question was how to interpret a power plant's owner’s directive to his employee, yeah, it might be different. But that's not the situation. EPA has been told, figure out the best system of emission reduction.
Will: But it is told to give standards performance to power plants. So, if you went to the regulator and said, “Okay, what's my standard of performance?” And they said, “Yeah, your standard of performance is stop performing and buy hydro,” that still seems like it will be a little weird. I'm not saying a little weird is enough reason for the government to lose, but it is a little weird.
Dan: That seems like a thin read, because it could be that the standards, this one just isn't consistent with the best system of emissions reduction. This is the standard as you get an F.
Will: But as I understand it, it's not like anything you can do for the power plant. The plant is just like, “No, we don't like this power generation at all.”
Dan: Yeah. The court does not really rest its opinion on this language. This is more--
Will: I think it's what the opinion opens with, in that very Roberts-y way, that would just make you think this is strange.
Dan: Okay. But Justice Kagan, she criticizes this conservative project of trying to establish this nondelegation principle. She cites a couple of things. She cites article by your colleague, Eric Posner, and by Adrian Vermeule, who we will circle back to, arguing that there is no nondelegation principle. And she cites some recent scholarship by Julian Mortensen and Nick Bagley, and several articles where they've done really quite exhaustive historical study and made the argument that seems quite well researched and compelling that there's historically been a lot of delegation and there is very little support to be found among earlier historical sources that are relevant for some nondelegation principle. And then, Gorsuch has an interesting and I thought quite unsatisfactory response to that. And he says in a footnote, “In the course of its argument, the dissent leans heavily on two recent academic articles,” citing Kagan's dissent, “but if the battle of law reviews were the order of the day, it might be worth adding to the reading list.” And then, he just like cites 12 articles basically mostly by conservatives about nondelegation.
Will: But including literally multiple articles that are written in response the article she cites. [crosstalk]
Dan: Yeah, but some that predate it quite a bit, right?
Will: Right. Both.
Dan: But not offering any of his own context on this article. It's just like, “Well, I've got a list.” It's like, “Okay, well, you have to make the argument.” It's not about counting how many articles there are. It's about--
Will: I think it's about counting how many articles there. I mean, he's made the case already at length for the nondelegation doctrine in Gundy and he's going to make it again if he ever gets the votes for the nondelegation doctrine. So, I actually felt like that was right, that this was the right place to not get into that fight. But also, just not to let anybody think that like, “Oh, Scalia has the scholarly consensus on her side.”
Dan: Only one of those pieces was published even contemporaneously with Mortenson and Bagley. There are articles floating around online for a while before that.
Will: The Vermeule Delegation at the Founding is a direct response-- [crosstalk]
Dan: Yeah. That’s a response.
Will: The Gordon nondelegation argument article is, I think, quite contemporaneous slightly before, but I think it's been updated since. And then similarly, the Lawson, Alexander, Prakash articles are all in part direct responses to post by Vermeule. And then she has Michael McConnell, Phillip Hamburger, the other major works here.
Dan: Yeah.
Will: It's a good [crosstalk] list. He's right.
Dan: It is a list. It's a list of stuff, and it's long.
Will: Can I [unintelligible [00:47:56] again quickly?
Dan: Okay.
Will: I've run out of chances so often. I think Mortensen and Bagley and Posner and Vermeule might be like 80%. Despite the fact that Gorsuch has 10 times as many citations as Kagan does, I think they really have moved the needle in terms of what kind of a nondelegation doctrine an originalist could endorse. I don't think they've moved to 100 that you could literally find no support for any kind of nondelegation doctrine. But I think they've refuted the Gundy dissent and they've refuted a lot of the two L separation of powers versions of the nondelegation doctrine you might believe in. And that's a big deal and that might even have influenced the way these opinions are written. I think it's really possible-- [crosstalk]
Dan: Do you think it will influence the outcomes in any case that matters?
Will: Yes.
Dan: Why?
Will: I think it will be hard for the court to get five votes for the most aggressive versions of the nondelegation doctrine that they have shown are unsupportable if that would have happened, had it not been for that scholarship, and now it will not happen.
Dan: I mean, because Justice Gorsuch does not seem to indicate any reservations. He's just like, “Oh, those articles? I got a bunch of other articles.”
Will: I am not making a prediction with Justice Gorsuch. But I do think that Justice Gorsuch needs four votes to get anywhere, four more votes to get anywhere. Even Justice Gorsuch is probably going to have to trim his sails a little bit when he tries to resurrect his Gundy argument. Even the articles Justice Gorsuch cites don't all go as far as he would. And I think that it will affect Justice Gorsuch’s ability to get four votes.
Dan: Yeah. Talking about Adrian Vermeule in a Washington Post editorial saying there is no conservative legal movement, his claim is basically that to the extent that there was supposed to be a conservative legal movement that claims fidelity to a bunch of neutral principles, textualism, originalism, judicial restraint, things that different conservatives maybe emphasized more or less. [crosstalk] Yeah, traditionalism, none of those things are really doing work, and this case actually seems to just be the court saying like this thing that liberals want to do is we don't want them to do it. And part of a larger argument he's made that basically just like originalism is for idiots, it's phony, and that the thing that's really doing the work in these cases is ideology, political morality. I'm not sure he's wrong about this one.
Will: Look, the bottom-line accusation might be right, but I think this argument is wrong in multiple respects. One, originalism, it's one thing to say it's true. The West Virginia v. EPA is not textualist and that's an important knock against it. It does not adhere to textualism. But his argument that it's not originalist is that he and Mortensen and Bagley have already convincingly refuted the nondelegation doctrine. So, anybody who still believes in the nondelegation doctrine must not be a true originalist as if one can't have disagreement. As if, if you fail to agree with a bunch of non-originalists about what originalism requires, you must be a fake originalist. And that's a straw. He can be right on the merits, but it's weird to say like Neil Gorsuch is not an originalist because he doesn't listen to Adrian Vermeule. That it seems like-- [crosstalk]
Dan: Yeah, although what he's saying is basically, scholarship has confirmed the thesis this isn't a thing and this actually was something that was invented in the 19th century.
Will: But even if you say that, but he's going further and he's implying that Gorsuch only believes this not because Gorsuch is a misguided originalist, but because Gorsuch is not even an originalist. He's pretending to believe in this thing that all the originalists believe in because he really--
Dan: I don't think he's pretending, but it may be that to the extent that people actually believe that the thing that is driving the train for them is less the best reading of the history and often these other considerations he thinks you're doing a lot of the work.
Will: Sure.
Dan: And he might not be wrong about that.
Will: He might not, but I don't think he's at all, well, made the case on that.
Dan: Well, I mean, it's a thousand-word op-ed.
Will: Yeah, I guess, I don't think he's given really any evidence of that.
Dan: Yeah. He said it doesn't demonstrate judicial restraint. The court didn't even need to decide the case, and so forth. He says that the court is proudly proclaiming that the major questions doctrine is ungoverned by ordinary legal principles. What does this mean? I don't know. I think he scores a lot of points here.
Will: And then on traditionalism, again, the tradition is that there is a nondelegation doctrine. The radical one is him. For instance, there isn't one. I mean, tradition is there is one and that it's very weak, and that we largely enforce it in the margins through things like-- I mean, Cass Sunstein wrote like 20 years ago about how our tradition is to say there's a nondelegation doctrine that never actually strike things down and instead use it as a cannon for interpreting statutes, which is exactly what the court's doing. I think he's right about judicial restraint. He lists four precepts. One of them is judicial restraint, it's true has largely been abandoned. That happened like 10, 20 years ago. Of the other three, it's--[crosstalk]
Dan: That happened when conservatives got control of-- it became clear that they were going to control the court, right?
Will: And then it's true, the textualism, in this case, takes a backseat to a combination of doctrine, and originalism, and that the originalism and doctrine may be bad. But that's just a much less interesting claim.
Dan: Yeah, I think that your views on this will probably be shaped by what you think of the underlying merits and maybe if you read the history differently, but I think if you take a step back-
Will: I'm against the thesis.
Dan: -his thesis.
Will: [chuckles]
Dan: Well, you didn't say that. You said you were against the way the opinion is written, and you needed to separate out the two issues.
Will: Fine. I'll be against the merits.
Dan: Okay. But the more you take a step back and look at the term, bigger picture, I don't know, the more attractive this thesis looks, because what have we ended up with this term? Well, the court states they can't regulate abortion. That's the thing liberals want to ban. They can't regulate guns. That's the thing liberals want to permit. They can't regulate guns, those are things liberals want to ban. EPA can't regulate climate change. Federal Courts can't stop school prayer. I mean you just keep racking them up and they all seem to go in one direction. And the thing that seems to be explaining them is not any principle of states over federal government or restraint over activism. It seems to be like underlying partisan bottom lines. And maybe that's just the best reading of the legal materials in every case. It's a great coincidence that original understanding of law invariably favors the Republican platform policy. That's an unfortunate for me, it's a disappointing and unfortunate coincidence, or it could be something else.
Will: So, I understood Vermeule making two claims. One is the correlation claim that you make a lot, and the other is something like a bad faith claim. There isn't even a movement fueled by these ideas.
Dan: I don't know.
Will: If you don't think he's making the second claim, then I'm much less upset about it. The claim that there is no conservative legal movement, not just that the conservative legal movement exists and really does believe in this stuff but fails to realize the extent to which their ideological priors are pouring in as well, I say that is different.
Dan: I think he maybe thinks that there isn't really one among politicians that they all are just acting in bad faith. But maybe they're finding people like you who are useful idiots who really believe it, and you're just totally deluded. That's how I might reconstruct it.
Will: I mean, look, maybe he didn't write the headline, but I think the conservative legal movement is a bunch of useful idiots, it's a very different take away from it doesn't actually exist.
Dan: Yeah. Although if the movement is, if we're talking about what politicians and political actors are doing, and if it's just entirely a charade on their part, then I don't know. But yeah, it's an op-ed. Things are designed to be snappy, get clicks.
Will: He is very good at getting clicks. Now, even on the on the other thing, I guess I think this, once the court is deciding a bunch of really important questions, of course, the appointments will end up being partisan. Even if you assume that there are a bunch of people all decide in good faith what the Constitution means, many of whom have more heterodox views who think that the nondelegation doctrine is a thing but are also skeptical of football coaches praying on a football field or whatever. Those people don't get confirmed. The political process selects for the people with the most political orthodox views out of all the people in the federal society.
Dan: Yeah. The best case for letting judges make all these decisions is that something about legal culture and legal methodology prevents them from just deciding these cases in a purely partisan way, and I think that is less true today than perhaps it once was.
Will: I'm not even sure this shows us that. It may be that, again, it's random how often it correlates with your political priors. But the technology of judicial selection has gotten so good that the senators and the White House counsel can make sure they pick the people whose views do happen to align with what they want.
Dan: It's not just that though, there's a whole cottage industry of people churning out support that the conservative Justices can rely on for why the thing that Republicans want to do is what the Constitution requires or permits.
Will: What’s the cottage industry?
Dan: It's you and your friends who are stacking the law views with these things. It's a huge network of lawyers who are out there creating the foundation for these arguments and then at the end of the day-- And you see this these views evolved. I mean, as they're become something that's higher stakes, a bunch of people come out of the woodwork and it turns out that the thing that nobody thought was unconstitutional is unconstitutional, like the Affordable Care Act, or the Voting Rights Act, things that people thought were constitutional [crosstalk].
Will: So, this is a good different example. Like the Affordable Care Act, I agree. The challenge grew from very little to very much. The Voting Rights Act, every single Supreme Court decision upholding the Voting Rights Act back to 1965 had dissenting Justices. Like Hugo Black dissented in South Carolina v. Katzenbach before there was a cottage industry.
Dan: That's fair. Although some of the arguments that are being used to dismantle it are ones that are new. They're clever, constructed, things like that. It's not like this is just--
Will: Some of the arguments are new, I think it's true, but I don't think there's nearly as much coordination certainly as any of this applies.
Dan: Well, it can be a dynamic system. It doesn't have to be-- not everybody has to be taking orders from Leonard Leo, but the system nonetheless-- I mean, I think that there's a self-reinforcing culture where people end up-- there being professional awards for developing these arguments and believing in these positions that the thing that conservatives want are required. I mean, I think it's--
Will: What are the professional rewards?
Dan: Become a federal judge. You're cited by the Supreme Court, and then you become a Supreme Court Justice. You get credibility and rewards from your friends at the Federal Society lawyers convention in DC. You get selected by politicians for other stuff. I think that maybe we have to now transition because there's just a really natural transition here to talking about the court's grant in a case involving the independent state legislature doctrine, the so-called-- because, I think, [crosstalk] maybe you’ll tell me I'm wrong, but I think that this illustrates what I'm talking about a little bit, in the sense that-- basically, the election clause says-- let me get the language right in front of me, states that ”The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof.” So, we have this clause in the Constitution.
I don't know the precise genealogy. I know this argument was developed in Bush v. Gore. I don't know if it has any roots before that time. But the argument basically, that legislatures have unfettered discretion to do this. So, when state courts try to get involved and say the legislature has violated state law, violated the state constitution in doing something and tries to craft some remedy, that violates the sovereignty of the legislature, and that is unconstitutional. And that permits the Supreme Court, it permits them to basically interpret state law in ways that say state court's got the law wrong.
I tend to think that the way this at least in its broad form, this argument is crazy, because what it seems to be saying is we say that legislators decide this thing. There's no reason to think that that should be somehow implicitly stating that in that context, the legislature has the power to violate state constitutional law. And that federal courts now get to second guess, get to intrude on the state's collective system for figuring out whether its own officials violate or consistent with their own law. That strikes me as a shocking intrusion on state sovereignty that we wouldn't permit in other contexts. But it is one that, if accepted, will have potentially wide-ranging consequences. It will end redistricting litigation in state courts, I think, or at least dramatically curtail it. It could have broader implications. It could have broader implications of basically giving state legislatures unfettered power, without any state judicial check, to just say Trump gets the electors for our state. We can talk about whether that's a necessary consequence, but this is an argument that's been developed, and support gets turned out for it and it's one that is going to-- it's designed to help Republicans win elections.
Will: So much to say. Just to be clear, on support, when he says no support, no reason to believe any of that, it is true that Justice Story literally said that this was what the Constitution required.
Dan: Well, he was young.
Will: Okay. And again, he can be wrong, and he wasn't a founder.
Dan: What's the context in which he's saying that? There wasn't redistricting litigation in state court in a [crosstalk] do whatever.
Will: Close. He says that at the Massachusetts constitutional convention of 1820, when they're considering a proposal to impose some state constitutional restriction on a legislator’s power for redistricting, in particular, to require it to use districts by law, he says, “We can't put this in the Massachusetts Constitution because it will violate the Article 1 section 4 elections clause, which directly vests in the state legislature an unfettered power to decide on how to draw the districts. Therefore, we cannot put it in the state constitution and limit that because that violates federal Constitution.” The argument is just that Justice Story was right. I think he was probably not right, but it's not like--
Dan: Why not?
Will: I don't know. Why is he not right?
Dan: Yeah.
Will: My sense is that his view was an outlier, that [unintelligible [01:03:25] practice did not conform to the full story view. And that because in practice, it's too hard to think about the state legislature completely divorced from its institutional context. It's like pretty much everybody agrees that governors can veto legislation relevant to redistricting. You don't have to maintain a separate set of books of legislation vetoed by the governor, but that therefore still qualifies under Article 1, Article 2.
Dan: Yeah. I mean, does everybody agree with that?
Will: I think so. There's only people who--
Dan: There's a separate opinion by Justice Gorsuch. He basically says state governor-- he basically says, “Legislature gets to decide, not governors, not courts," and so forth.
Will: Yeah, I think even he agrees that when the governor is exercising his lawmaking power in the veto that he counts, the debate is to what extent can state election boards or governors administering statutes. Again, take liberty with the statutes, it's like a nondelegation doctrine problem. I think this is a hard case. And while actually the issue really bores me, considering trying to get read up on it for the fall just because it seems like it's going to be a big thing. But there's the question of, is the state legislature freed from the governor? Are they free from the state constitutional more generally? There's the Bush v. Gore question about what happens if courts misinterpret state statutes? There's the Gorsuch question of what happens if the executive branch misinterprets state statutes? And then, maybe--
Dan: And then, there's the question about state redistricting commissions.
Will: Yeah. Redistricting commissions, which has been decided but presumably can be re-decided. And then, in a way that's an easy way out in both directions in this case, which I hope to God, the court takes in one direction or the other. So, I think the easiest route for the challengers, is to say, “We don't have to decide any of that. The point is that courts can't be the one to draw the maps.” I think in Moore v. Harper, that's part of the controversy. You could say, “Yeah, maybe the court can tell the legislature its maps aren't good enough, but they still can't step in and draw their own maps,” will be the easiest route for the challengers. I think there's a good argument to get away from it all for the state though too, which they've pressed in some of the briefing, which is to say, “Look, in these cases, the legislature is actually authorized this whole thing where they've passed statutes giving the courts’ jurisdiction and venue in these kinds of cases. So, you are doing what the state legislature wanted," which is to have a judicial review process. There's a fight about that too. But--[crosstalk]
Dan: Why does the state want that? The state legislature wants that?
Will: No, that's what the [crosstalk] argue.
Dan: Okay. Yeah.
Will: There are some arguments that potentially step outside of the morass in both directions that I'm hoping can come to the fore. But, yeah, actually, the other positions strike me as like wickedly complicated.
Dan: Yeah. I guess the thing that part of it that troubles me most is this Bush v. Gore issue about do federal courts get to say that state courts, which normally, the state courts get to decide what state law means, do they get to say that state courts are misinterpreting state law? That's a separate question from whether state courts can say, the legislature violated the state constitution. But the idea that federal court can be like-- because first of all, there's no way that legislators can just make law in abstract ways that doesn't require enforcement and interpretation by courts. It has to be administered in some way, the elections officials have to figure out how to interpret it and apply the law. There's going to be stuff that ends up in court. And so, it seems like this weird-- I don't even understand what it means to say that the legislature gets to decide the meaning of state law, absent any possibility for interpretation by anybody else. It doesn't make sense to me.
Will: There wouldn't be absent any interpretation. I mean the best case for something like Bush v. Gore, and Harry Monaghan has written it already, is to analogize it to the doctrines like Bouie v. City of Columbia, judicial takings doctrine, the criticism of the contracts clause, where we say, “Yeah, of course, usually we defer to state courts with the meaning of state law, but we've got to have some check on that or else it becomes a way that the state court can evade its role.” I don't know that Bush v. Gore met that standard. But that's what it could mean.
Dan: Yeah. It is very strange to me the extent to which the Republican Justices seem very concerned with vindicating the rights of legislatures over elections and not very concerned with ensuring that people actually get to vote and have their votes counted and stuff.
Will: Okay. So, this is where it isn't so strange to me is because the Constitution gives legislators rights and doesn't give voters rights.
Dan: Well, I mean, that assumes a pretty clear reading of the Constitution, right?
Will: Yeah. But just a naïve textualist one. I mean, there's elections clause about the legislators having this power. And there's not a federal right to vote clause about--
Dan: That’s true. Although you could argue that some of the provisions assume a right to vote and then you could certainly make, I think, compelling arguments about the Equal Protection Clause and how that requires treating voters collectively, if you're going to have voters.
Will: Although very weak originalist arguments, because everybody--
Dan: Yeah, although by the way, Bush v. Gore relied on some equal protection arguments, that seemed to work there, but not other places.
Will: Not the Justices who knew better. I mean, the whole reason they had the concurring opinion was because the more self-respecting Justices needed a real rationale. Is this partisan just because currently, gerrymandering means that state legislatures tilt right, while governors and courts to left? Is that the reason you think this is a partisan case? Or you just think it's partisan because of North Carolina?
Dan: Yeah, I mean, I think that's part of it, because of the geographic distribution of Democrats versus Republicans, giving power to state legislatures tends to favor the Republicans.
Will: Isn't it good for the court to resolve this case in the 2022--? Isn't the 2022 term, the perfect time for the court to resolve this case, so we don't have a replay-- During the 2020 election, this issue was bubbling around in Pennsylvania. And, of course, it turned out to be dispositive, but you could imagine a world where I would have swung a key swing state and decided the election and we have Bush v. Gore all over again. And I think that's part of why the court stayed away from 2020 in the end. Isn't it good for the court to decide this case in a year that's neither a midterm election nor a presidential election? [crosstalk]
Dan: I mean, if [crosstalk] do it, I suppose so rather than do it beforehand, rather than after the fact. But again, it does seem like a case where a bunch of the conservative Justices have been pushing this angle and saying, “We've got to do this. We've got to do this.” And I don't know, would that be happening if there were a bunch of liberal public interest organizations pushing this and saying, “No, these conservative state courts are pushing back on our legislatures and changing our voting plans”? I don't buy it. I think that the court should be cautious in these cases that directly affect the partisan power over our democracy. I think that frightens me a little bit. Now, again, there is this broader argument that this is going to empower Republican legislatures to just like hand the election to Trump in 2024, you sounded like you're a little skeptical of that doom and gloom prediction.
Will: It's just not doom and gloom, I just think this decision has nothing to do with either way. I think even if the legislators are not independent, even if the respondents win this case, I think state legislature still have the power before election day. I think there's very little argument against the state of Missouri just on November 1st saying, “We decided to cancel the presidential election and give it to DeSantis.” And then after election day, they can't do it anyway, because of federal law, because federal law makes federal election day final. Now, I guess the one place that matters is that if you thought that the thing holding the Missouri legislature back, they were prepared to cancel the election, but the one reason they were aren't going to is because the Missouri State Constitution would stop them, then this argument will ensure that the Missouri courts can't stop the Missouri legislature from handing the election to the Republicans. But I suspect that's not that they holding them back. I suspect that in the states, this is tempting. They're being held back by the risk of blowback more than anything else, and the hope that they don't have to do it. But no, I think in some ways-- [crosstalk]
Dan: They don't have to do it.
Will: [laughs] This is the reason that ex ante expose thing matters a lot. It'd be more tempting to cancel the election if you know your candidate’s lost. If you think your candidate might win, so you don't have to do this really radical thing to give it to them. You'd rather not. Nick Stephanopoulos, my former colleague, said on Twitter and in a recent op-ed, I think it's Slate, that Congress could moot this case tomorrow, because the second half of elections clause also lets Congress regulate the manner of elections. So, all they have to pass is a one-sentence statute saying, we think that state constitutions state courts, etc., should we give them their normal effect, I don't think this would go away. I understand they're not going to do that, but do you agree they could?
Dan: I don't know. I haven't thought about it enough. If you look at the-- again, let me-- I keep not having the text of the elections clause pulled up in front of me. It says, “Time, place, and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof. But the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators.” I don't know. I'm not confident that the conservative Justices would say this gives Congress the power to tell the states who in the states can interpret and make the rules. Maybe it would just say, “Well, that just gives Congress the power to make its own rules, but not to say how state rules should be interpreted."
Will: I suppose it'd be like the nondelegation doctrine as applied to the elections clause-- [crosstalk]
Dan: Yeah. They could do that easily.
Will: I'm confident the court would not do that.
Dan: Why? I genuinely believe that these are the highest stakes cases, I think these are actually higher stakes cases than individual rights cases. These ones about who gets to control, whether people get to vote and how they get to vote, whether their votes count. These are the highest stakes cases. And I don't know, the court seem pretty willing to identify-- you've criticized the opinion, identify a new equal sovereignty principle in Shelby County, just declare a part of the Voting Rights Act unconstitutional. I don't know. I think there's a lot of appetite for--
Will: I don't think Shelby County was partisan. I don't think the court thinks of these cases as the most important cases. I agree they're important, but they're not the ones that the court is thinking of the most important. The court has, in the past, given Congress extremely broad power under the elections clause. And I believe the conventional wisdom is that the other doctrines like the anti-commandeering doctrine don't apply the elections clause, which may or may not be right, but that's the conventional wisdom. And yeah, I just think the nondelegation doctrine argument here is especially weak. I agree a court could do it. I think Justice Gorsuch might even do it, but I just don't think--
Dan: You don't think Justice Alito would do it? [crosstalk] I believe Justice Alito would decide that case in whichever way disfavored Democrats. Strongly, I believe that in my heart of hearts.
Will: Yeah. Even I don't believe that, but I'm not going to stand for Justice Alito on this podcast. So, can I ask you one broader question about this problem?
Dan: Yeah. And we're going to have to wrap it up after that. We didn't get to school prayer, but--
Will: Of course. What should the court do about this? So, if you have some of the Justices-- if you said that I'm right, that a lot of the Justices hold their views in good faith, even if that good faith may well be, then in turn derive a motivated reasoning, but that is like, they think they hold their use of good faith, maybe they're wrong about that. They'd like to at least get the Dan Epps of the world back on board of the court. So, what do they do? They could rule the cases in ways they don't really believe. They could just try to gut check harder. They could deny cert in these cases and grant cert in different cases. What should they do?
Dan: I guess they could do a variety of things. One is they could adopt some mutual principle, like we're going to try to not intervene unless it's really necessary, we're going to try to be a little bit restrained. They could say that let's at least decide cases in narrow ways, not move the law incrementally, not in big ways. They could say, “Let's try to do what we can to forge greater consensus.” I don't know. I think there's a lot of things you could do. They could also, I don't know, look within and sort of look at the bigger picture and say, gosh, maybe this is a weird coincidence-- that Justice Alito could say, why is it that in every case that the right legal answer turns out to be the one Republican wants? Maybe that’s weird. You know that sketch where it's like the guys are the SS officers, and they're like, “Are we the baddies? Why do we have these skulls on our hats?”
Will: Because they saw [unintelligible 01:16:52] instead, could they just find some cases-- Could they just let Justice Gorsuch grant a ton more Indian law and confrontation clause cases, to help even the score or find things that even they think is a wrongfully convicted person in the Alabama criminal justice system, and they balance the score more through addition rather than subtraction should be [crosstalk]
Dan: No, because I think that you got to look at the importance of the cases. If they're doing a bunch of stuff that enables Republicans to win elections and gives them all the wins they care about on important hot button issues, the fact that they let a few more people out of prison, I don't think really addresses the issue.
Will: Okay.
Dan: Some stuff we didn't get to, we've got couple voicemails. Probably not going to get to those today. We wanted to talk about school prayer, didn't get to that. Maybe we'll get to that later.
Will: It's not school prayer, Dan.
Dan: That's the question.
Will: Is that a football game? It's after a football game.
Dan: That's the question. Prayer involving schools and students, potentially. That's the question-- [crosstalk]
Will: It didn't involve any students.
Dan: Students participated. The question is whether the prayer in question was designed to encourage students to have the effect of coercing them, etc. There's some factual disagreement in the case about what was actually going on. But we won't be able to dive into that because we're over our time limit.
Will: Okay.
Dan: We've been recording for more than an hour and a half. So hopefully, we can get this one trimmed down a little bit in the editing booth, a little too long. Our last one was quite long, and that is our most popular episode ever. So, we continue to reach new highs, whatever that's worth. So, people seem to just-
Will: Yeah. [crosstalk]
Dan: -be there for the length.
Will: All right., Well, we've got a lot more to cover and we'll have to make some choices of what we're going to actually cover over the summer and what we're just going to ignore.
Dan: I mean, they're not going to release any new opinions for months, unless they do some weird shadow docket things, so we can circle back to things. We'll be recording more. We'll be recording more a little bit later in the summer, early fall as our schedules normalize a little bit.
Will: All right.
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Dan: Thanks very much for listening. Please, rate, and review on the Apple Podcast Store, or wherever you happen to listen to your podcast because doing that and then sharing the show with your friends, helps us get discovered. As I just said a minute ago, most recent episode was our most popular yet. So, my sense is there is a greater audience out there and not everybody knows about the show. So, please continue spreading the word. Shoot us an email at pod@dividedargument.com. We're not great about responding to those, especially in a timely fashion if we get to them at all, but we do read them all and think about them, incorporate the feedback into future episodes.
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Will: Thanks to the Constitutional Law Institute for sponsoring all our endeavors. And thanks to Dan for not quitting the show.
Dan: And if we take a long time for recording the next one, it will be because I'm agonizing over quitting, and Will is trying to prevent me by giving me an enticing retention offer.
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