Divided Argument

Triple Threat

Episode Summary

What could be more unscheduled and unpredictable than our fourth episode in little more than a week? We briefly discuss the jurisdictional complexities in the Mountain Valley Pipeline shadow docket dispute, and then revisit recent ethics controversies. Then, we continue marching through the June cases we missed. We talk about the First Amendment's "true threats" exception in Counterman v. United States, and then ponder the two student loan cases, Biden v. Nebraska and Department of Education v. Brown.

Episode Notes

What could be more unscheduled and unpredictable than our fourth episode in little more than a week? We briefly discuss the latest developments in the Mountain Valley Pipeline shadow docket dispute, and then revisit ethics controversies. Then, we continue marching through the June cases we missed. We talk about the First Amendment's "true threats" exception in Counterman v. United States, and then ponder the two student loan cases, Biden v. Nebraska and Department of Education v. Brown

Episode Transcription

[Divided Argument theme]

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

Will: And I'm Will Baude. 

Dan: We're back with the fourth episode in a week, basically. 

Will: Yeah, I think. At what point does this has become scheduled? 

Dan: Never. Because we're going to have a huge gap again, I'm sure. 

Will: Yeah. Okay. 

Dan: Aren't you going on vacation again? 

Will: Of course. 

Dan: Soon, right? 

Will: Yeah. 

Dan: Okay. 

Will: Got a couple of weeks. 

Dan: We are marching through a lot of the big opinions. So at a certain point, there will be slightly less urgency. I think we both had some of the big cases we really wanted to talk about and we weren't able to, mostly my fault, a little bit your fault, in June and now we are catching up, but at a certain point going to run out of stuff, right? 

Will: Well, once we talk about the big opinions, we can talk about the little opinions. 

Dan: Yeah. Well, big opinions, let's just say right now, the big opinions we're going to talk about, which are, the student loan. Been waiting for us to talk about those. And Counterman v. Colorado, really interesting First Amendment true threats case. What are the little cases? Just to give people set expectations that we will fail to deliver on, but what are the little cases you're interested in? 

Will: I'm interested in a lot of little cases. 

Dan: Arbitration case? 

Will: Well, maybe not the arbitration case. I'm pretty interested in Arizona v. Navajo Nation, the case with the water rights of the Navajo Nation, with a on-brand Justice Gorsuch dissent. That one's interesting. I'd be interested in actually talking about Allen v. Milligan, the voting rights case that we-- 

Dan: Yeah, I guess we talked about it briefly. 

Will: Yeah, that was interesting. I think this Coinbase v. Bielski case, procedural case is pretty interesting. 

Dan: Yeah. That was sort of what I was talking about when I said arbitration. 

Will: Oh, okay. Yeah. 

Dan: That's a 5-4. 

Will: Yeah, 5-4, unusual lineup, I think. 

Dan: Yeah. 

Will: Groff v. DeJoy is pretty interesting. Had a pretty interesting argument. The Title VII case. 

Dan: Yeah. Okay. Well, listeners, if you are interested in any particular case that we haven't gotten to so far, write in. We may ignore you, but we may not. We'll see. And then, maybe we'll come up with other stuff to talk about after we plow through the opinions. 

Will: Yeah. 

Dan: We are going to be gearing up for Season 4. Can you believe that? We're soon going to complete our third season of the show and have a fourth season. 

Will: I'm pretty excited. 

Dan: Showing the doubters wrong. All the people who said we wouldn't last. 

Will: [chuckles] 

Dan: I'm not sure people really said that. I think people mostly just didn't pay attention. But you were thinking it, weren't you, people out there listening? You were wrong. Okay, we'll get to those cases. You wanted to briefly catch people up on what was going on with this Mountain Valley Pipeline thing. 

Will: That's right. I think the last time we recorded, I previewed a case on the shadow docket, Mountain Valley Pipeline, LLC v. The Wilderness Society, which concerns whether or not they can build this pipeline that goes through West Virginia that Joe Manchin more or less personally demanded be included in [chuckles] federal law.

Dan: It's good to be Joe Manchin.

Will: In some ways. And the Congress obliged by passing a portion of the statute in the, I think, it's in the debt ceiling legislation, that's like a triple authorization of the Mountain Valley Pipeline. So first, it says, as a matter of federal law, all of the federal decisions saying this pipeline is okay under NEPA and whatever else, those are all ratified. Those are all correct. So substantively, this is kosher. As a matter of jurisdiction, no court has any jurisdiction to review any of this, so leave it alone just in case in some ways we did something wrong. And then, as a matter of venue, any court that's skeptical about the constitutionality of the jurisdiction stripping provision has to stand by and let the DC Circuit figure it out instead. 

Dan: And that last thing is framed in terms of jurisdiction, not just venue. Venue in the sort of formal sense, really a jurisdictional rule. So, other courts do not have jurisdiction to consider those. 

Will: "The United States Court of Appeals for the District of Columbia Circuit shall have original and exclusive jurisdiction over any claim alleging the invalidity of this section or that an action is beyond the scope of authority conferred by this section." And this is important because there was pending litigation in the Fourth Circuit challenging the pipeline. So, the effect of that triple threat is supposed to be, it's true that the Fourth Circuit should stand aside and if the challengers want to go sue again in the DC Circuit.

Dan: They didn't think this through enough because it needed another provision that said any challenge to the provision making the DC Circuit's jurisdiction over challenges to the jurisdiction strip have to also be in the DC Circuit, right?

Will: What about challenges to that provision? 

Dan: I think you need like a recursive function in the statute. 

Will: Do you have a section that's just called N plus one for any challenge to any section--


Will: N. 

Dan: I like that. 

Will: So, after this legislation passed, the Fourth Circuit nonetheless granted a stay of the pipeline pending oral argument, at which point the pipeline, represented by former Solicitor General, Donald B. Verrilli, and dream team at Munger, Tolles, went to the Supreme Court and said, "Yeah, please vacate those stays. Whatever else, they shouldn't do this. The pipeline's fine. The Fourth Circuit doesn't have jurisdiction over the pipeline, and the Fourth Circuit doesn't even have jurisdiction to decide whether the Fourth Circuit has jurisdiction. So, tell them to cut it out. "

Dan: Yeah. 

Will: They got a ton of amicus briefs on both sides, including the first filed amicus brief, amicus curiae of Senator Joe Manchin. [chuckles] Just weighing in. There was a team of fed courts professors led by Erwin Chemerinsky, who had filed in the Fourth Circuit arguing that this provision was unconstitutional and somehow all three aspects of the triple threat were impermissible. They filed-- there's a ton of amicus briefing. And the Supreme Court yesterday, on Thursday, July 27th, unanimously vacated the stays.

Dan: Itself without opinion.

Will: There's one comment that's a little bit-- the application was an application to vacate the stays, and then it said, "In the alternative, you could treat this as a rid of mandamus." For some reason, rather than thinking about stays, you just want to say, "You're so far out of line." And so the court says, "Yes. The application to vacate the stays presented to the two Justices granted," blah, blah, blah. "The State orders are hereby vacated. Although the court does not reach applicant's suggestion that it treat the application as a petition for rid of mandamus at this time, that the determination is without prejudice to further consideration in light of subsequent developments." I take it that's a thinly veiled threat to the Fourth Circuit. 

Dan: Yeah, not so thinly. 

Will: [laughs] Yeah. I will say the one thing on the-- you said that the Congress didn't totally think this through, and that might be right. So, the argument made to the Fourth Circuit about why the third level of the triple threat, the DC Circuit provision didn't work is they said, "Well, the statute says that the DC Circuit has original and exclusive jurisdiction over a claim alleging the invalidity of the section." But we're not making a separate claim alleging the invalidity of the section. We just have a claim on the merits, and then in the course of litigating that we think the section is invalid. But that's just a provision for if somebody new files some claim against the statute doesn't apply to us, which seems silly, but I do think that section may not have been worded quite the way you would want. 

Dan: I can see that. But still, I think that probably a reasonable construction of the language would say that the Fourth Circuit doesn't have jurisdiction. 

Will: Yeah. Most interesting question about the case is what is the easiest level of the triple threat to resolve? There are some members of the court who are skeptical about this jurisdiction-stripping legislation. And the first two layers of the triple threat split the court multiple ways in a case called Patchak v. Zinke a couple of times. The court passed the statute that actually said, "Part 1, the Gun Lake taking," or whatever it is, "The Gun Lake Act is fine. Part two, no court has any jurisdiction about." So, is it easier to resolve on the merits? Is it easier to resolve on jurisdiction grounds? I take it the venue ground might be the easiest ground.

Although one of my colleagues and I were arguing with this case, and he was a little skeptical of the venue provision because he said, "Look, every court always has jurisdiction to determine its own jurisdiction." I mean, imagine a statute that said, "The Fourth Circuit Court of Appeals shall be required to immediately execute all of its law clerks with no due process." Part 2, "Any challenge to the constitutionality of Part 1 exclusively by the DC Circuit." Like, does the Fourth Circuit just have to start executing them and see-- [chuckles] Seems like no. 

Dan: But the Fourth Circuit would have jurisdiction to determine its own jurisdiction, but in doing so, would presumably have to then resolve that jurisdictional question by saying it didn't have jurisdiction, if it was interpreting the law correctly. 

Will: Well, unless they can--[crosstalk] 

Dan: Not in the example you just gave, which I think would raise all sorts of other problems, which raise constitutional problems, right? 

Will: Right. Unless they conclude the jurisdiction supervision violates Klein and that Patchak v. Zinke doesn't have a majority opinion, so there's no binding ruling of remarks. 

Dan: Yeah. The controversy, and Patchak, is when Congress is not just changing substantive law in addition to stripping jurisdiction, but arguably sort of saying how a particular case should come out. That's the thing that arguably that it can't do. 

Will: Right. 

Dan: What is it, in Smith v. Jones, Jones wins.

Will: And Smith v. Jones, Smith wins. 

Dan: Smith wins, same thing, right? 

Will: No, it might be important. I actually think I think Patchak v. Zinke stands for the proposition that Congress probably can say Jones wins because Jones is the defendant. Like, they can effectively say, "Look, there's a pending lawsuit, stop. One way or another, stop." That's different from taking a lawsuit that's going to change the status quo and making it suddenly work. 

Dan: Is that because of does it matter who the plaintiff and defendant is and whether they have property interests at stake?

Will: It might. I think the squarest case of Smith v. Jones, Smith wins, presenting a problem is where Smith is trying to get Jones' property. And so, there will be a due process violation. 

Dan: Yeah. 

Will: And the easiest case of Smith v. Jones, Jones wins, is if Jones is the United States, and which is what two Justices said in Patchak, was because the United States is the defendant and the United States has sovereign immunity, you can always unwaive sovereign immunity. So, at least in Smith v. US, you can always say the US wins. And then, there's a range in between. The Smith v. Jones thing is a footnote in a case called Bank Markazi, where the court first started grappling with some of these modern one-case-only jurisdiction-stripping statutes. There's no actual such case, but I like the way it's now become, like it's seeped into the fed court's lexicon. So, sometimes just like quiz my fed court's class on the case of Smith v. Jones, which they have to recognize as this important hypothetical case that now appears in several footnotes. 

Dan: Do they like that? 

Will: The good ones do. 

Dan: Yeah. And I guess one thing, important question in a case like this with a jurisdiction strip is going to be, does it implicate constitutional questions or is this a situation where Congress just has the underlying power to change the substantive law without violating somebody's constitutional rights, because if the former, arguably the jurisdiction strip isn't really doing any additional work. Just gilding the lily. 

Will: Right. And that's true of this case as well as Patchak, is that in a way, the first layer of the triple threat is just, "Look, you guys are challenging this statute under this pipeline under NEPA, not under the Constitution. NEPA is a statute. And so, we say NEPA is hereby repealed [crosstalk] pipeline."

Dan: Yeah. 

Will: You have to have a really aggressive theory to think that Congress can't do that. 

Dan: Yeah. 

Will: I think there are many states in which the state legislature can't do that. There are many states in which there's a state constitutional doctrine of special privileges where you can't pass laws that say, "This corporation gets a special deal," but we do that for--

Dan: Sort of like a flip side of like a bill of attainder-

Will: Yes. 

Dan: -situation. 

Will: Exactly. And dating back to the skepticism of British monopolies and the interesting heritage of it but it's not a thing for federal pipelines. 

Dan: All right. So, it sounds quite likely that Fourth Circuit will get the message, veiled or not.

Will: Sure thing.

Dan: And then, maybe there will be a case in the DC Circuit. I strongly suspect this is going to go nowhere and we won't have to get back to the court on this. What do you think? 

Will: I think that's probably right. I've seen this claim that the Fourth Circuit is now the most liberal circuit in the country, which of course--

Dan: The DC Circuit has some number of Democrats on it too though. 

Will: Right. Well, and of course, all circuits are just full of judges trying to do their level best. So, I regard this claim as silly. 

Dan: Especially the Fifth Circuit, right? 

Will: [laughs] Fifth Circuit is the new Ninth Circuit, I think. And then, one quick correction on-- I think, it was our last episode. We're talking about Jones v. Hendrix. We were talking with this underlying case, Rehaif, about the knowledge requirements for the rules about possessing a gun, which I described as being about being a felon and knowing you're a felon or not, but Rehaif himself in the Rehaif case was not a felon. His issue was his immigration status. The issue was, did he have knowledge of his immigration status? [unintelligible [00:14:13] the gun. Not a felon. Sorry, Mr. Rehaif. 

Dan: Appreciate your intellectual honesty in making that correction, although it strikes me as immaterial and one that I would have just pretended didn't happen personally.

Will: Fair enough.

Dan: But you're too principled for that.

Will: That seemed like an important point.

Dan: It was a very, very brief thing we discussed, right?

Will: I think so, but yeah.

Dan: You're a principled guy. You podcast long enough, you just have to accept that you're going to say stuff that's wrong probably every time and just live with it, and that's okay. The balance you say enough things that are right or at least interesting, make people happy enough. 

Will: I do accept it. I can live with it. I just try to get it right later. An earlier me would have been paralyzed by even saying anything on a podcast for fear that I said something wrong and permanently ruining my reputation. 

Dan: But, yeah, this is an early career scholar mistake, the refusal to say anything on the possibility they may get something wrong. I remember the first time I was asked to do something on the radio, I spent all morning prepping and then they didn't even call me because they bumped me for somebody more famous. 

Will: Yeah. 

Dan: And now I'm like, "Yeah, if I'm free, I'll talk to you," say whatever. 

Will: But there is this late career scholar mistake where you just opine on anything. Alan Dershowitz just like-- or Richard Painter just has a view on every question. 

Dan: Richard Epstein. 

Will: Totally fair. So, I feel like there's a sweet spot. 

Dan: Yeah. 

Will: Are we in it? 

Dan: Goldilocks Zone? Goldilocks is going to come back in a minute. Maybe. Hope so. But only our listeners can tell. One other thing, Twitter a little bit. I reiterated my view that the Justice Thomas Venmo scandal is not a scandal. 

Will: You went on Twitter? 

Dan: Yeah, I still log in every once in a while. 

Will: Wow. 

Dan: It's a shell of its former self. I'm not even sure I'm supposed to call it Twitter anymore. Maybe it's just X. But there's still some folks on there, still get some engagement. The alternatives are pretty bad. Threads is terrible. I'm on Threads. It's terrible. I won't use it. Bluesky is actually pretty good, but nobody's on it, so that's a problem. So, yeah, jump back into Twitter. A lot of people sort of pushing back with arguments I thought were not very persuasive. One was like, "Well, he did all this other corrupt stuff." I was like, "Well, okay, but that's not the allegation here. The allegation is this thing." And as far as I know, pretty much every Justice does reunion events with clerks, and then the clerks have to pay their own way because the Justices don't have thousands of dollars to pay for events. That seems okay to me.

And then, some other people were like, "Well, that's the fact that they do it makes it still bad." And it's the bad thing is that the Justices are hanging out in this cloistered environment with other Supreme Court lawyers. I'm just like, "What do you want?" At a certain point, these people are going to have friends. I'd actually rather have them hang out with their law clerks who they had this professional relationship with rather than just like random people who are cozying up to them because they're famous and powerful. It's not an option to just say they're not allowed to be friends. 

Will: It's also funny in a world where there are more protests than there used to be, like at their houses and other places they might go that are open to the public. So then, it's a special, less surprising--


Will: Socialize with the group of people who aren't going to protest them in a place that the protesters aren't allowed. I don't know what you expected. 

Dan: Yeah. This drives me a little crazy. It really bothers me when sort of folks on the left about whom I would be inclined to agree with a lot of things, kind of make arguments that are going to be seen as transparently partisan. They feel like it's self-defeating. You're making this big deal about Justice Thomas' Venmo, but you're not even writing an article about the fact that Justice Stevens and Justice Ginsburg and Justice Breyer, whoever, have reunions where former clerks have to pay their own. Like, I had to pay a lot more for the Kennedy reunion because it was like a black-tie dinner, catered dinner. That wasn't a gift. It wasn't corrupting. No one has ever thought that was a problem until this $20 Venmo thing happened. 

And so, just focusing on the fake scandals is a distraction from things that actually might be scandals because it makes it harder for people to tell the difference. And only selectively choosing to try to generate scandals about conduct that liberal Justices engage in too, also just makes those criticisms have a lot less force. It makes people on the other side be like, "You don't actually believe this. You're just coming up with this thing to try to get Justice Thomas." 

Will: Do you think that's actually true of how the discourse works or just how it should work? Obviously, I agree with you in principle. You see, in the media and politics, sometimes if you just say over and over again, negative stuff about politician X, maybe it has an effect in like, "Oh, my God. Bad stuff." 

Dan: I think maybe it has an effect in riling up your base. I think it eliminates any possibility of bipartisan compromise or agreement. Maybe that was never possible. You said you actually to start with the less hot buttony cases, so you wanted to start with Counterman.

Will: Yeah, the interesting cases. 

Dan: Well, the other one's actually pretty interesting too. I actually found both of these today particularly interesting. But Counterman is a First Amendment case. It is about the scope of an exception to the First Amendment. So, kind of speech that has historically been seen as unpredicted, which is a true threat. What's a true threat versus fake threat? 

Will: [chuckles] I'm not sure whether it's true threat versus fake threat or true threat is a way of saying-

Dan: Threat.

Will: -punishable threat. Threat that is punishable under the First Amendment, as opposed to it's a cue that not all things you might call threats are punishable. 

Dan: Yeah. If someone walks up to you and says, "I'm going to kill you," and they intend to scare the living daylights out of you, that could be a crime. There's no First Amendment problem for that. You don't get to say, "Oh, I was just like saying that for fun." At least if you knew and intended the person to be really scared.

Will: They intend to make you think they actually mean that. I think if your boss, you do something wrong and your boss says, "Oh my God, Epps. I'm going to kill you if you do that again," and they do intend for you to be scared, but not scared of getting killed, just scared of getting fired, that probably wouldn't be a true threat. 

Dan: Yeah, but that's something different to view. 

Will: We're in a world where obviously people toss around death threats a lot in the world and a lot of them are unpleasant. And thinking about what it is that it has to be true, what exactly it has to convey, I guess in a way that's part of what this doctrine is about. But yes, if somebody makes a specific actual threat, like, "I'm going to do X to you," the goal of which is to communicate is that they're going to do X to you--

Dan: And X is like a violent thing, bad thing, not just like, "I'm going to be mean to you." 

Will: Yeah, I think it has to be, at a minimum, illegal and maybe also violent, then that's a problem. 

Dan: I think there's no disagreement that that category exists. There is this category of unprotected speech. And the way the court has been operating for a while, at least since 2008 case called Stevens is to just say, "Look, First Amendment protects speech, except for this list of categories of speech that isn't protected." Is that fair?

Will: Steven says this category dates back to the founding. There's no protected speech except for a category of unprotected speech that goes back from the founding to the present. That's sort of like grandfathered into the original meaning of the First Amendment or something. 

Dan: Yeah. The government just doesn't get to just make up new categories. Maybe arguably child pornography is one, but maybe that just fits into the traditional obscenity category. 

Will: I think that's right. The court has in fact said that the child pornography is just a subset of the original obscenity category, or maybe of the speech integral to criminal conduct exception. Put it in both categories. But yes, they do say in Stevens, in principle, we could newly recognize some historically unprotected category that we've never talked about before, like we never really thought about it, but we now realize that some category is unprotected.

So, everybody agrees there's a threats exception, First Amendment, or the threats, some category of threats are outside of the freedom of speech. And so, of course, the question is, what's a threat? 

Dan: Yeah. 

Will: And maybe ten years ago, eight years ago, the court had a case called Elonis v. United States about rap lyrics, about somebody who posted on his Facebook page set of words that one might think of as extremely violent threats to-- I think it was his ex-wife maybe or--

Dan: It's kind of maybe a fourth rate Eminem who was trying to write very bad rap lyrics. 

Will: Or one might think of it as rap lyrics, trafficking certain tropes that others might find threatening. And so, the question was, what kind of knowledge do we have to prove or intent or what mens rea do we have to prove to prosecute the process as a threat? And the court resolved the case on basically statutory interpretation grounds and thus avoided the constitutional question. The court concluded that the federal threats statute should be interpreted to have a fairly high mens rea in keeping with these cases we've talked about, in some ways, where the court reads a lot of mens rea requirements into federal law like Rehaif. But now--

Dan: Anthony Elonis followed me on Facebook and Twitter for a while. Did you know that? 

Will: No. Did he threaten you? 

Dan: No. But I did notice eventually that his account seems to be gone, and I don't know why. My guess was it was suspended because he was threatening people, but I'm not really sure. 

Will: Could be advice of counsel. 

Dan: Yeah, but I screen capped him following me and actually worked that into my slides when I was teaching Elonis in criminal law years ago. Students enjoyed that, but we did not-- Anthony and I did not exchange DMs, but now I wish I had because I can't communicate with him anymore. 

Will: You can probably find him somewhere. 

Dan: Probably, but I don't want to. Okay, but this case is different because this case is a case coming from Colorado. It's not a federal case. And so, it's purely a constitutional case. It's not statutory interpretation with constitutional issues lurking in the background.

Will: Exactly. Now, the case fact pattern is weird in a couple ways, some of which we'll probably talk about. But in a nutshell, the defendant, Mr. Counterman, sent a large quantity, hundreds of messages across various kinds of social media to this woman, a musician who he did not know and had never met. Which alarming for reasons apart from their content or from sort of threatening that's just there were so many of them. She kept trying to block him, and he would occasionally find a new account or some new way to contact her. They made it seem like he was talking to her or knew her. Occasionally, made it seem like he was following her. So, there's sort of like an alarming surrounding to the whole thing. And there are a few of them that were particularly threatening. Right? 

Dan: Yeah. 

Will: One said, "Staying in cyber life is going to kill you." Another said, "You're not being good for human relations, die." One said, "Fuck off permanently." And so, there's a sort of threatening aspect to it. The mens rea issue came up because there's an argument, apparently Mr. Counterman is quite mentally ill and that in particular, he was under the illusion that she was replying to him, that he was like hearing her-- getting subliminal messages, in some way-- there was another side of the conversation that he was hallucinating. But if that were true, then a lot of the messages, even the most threatening ones, seem very different in context. So, he could say, "Yes, I understand why these messages are really alarming to you given what you knew. But given what I thought was going on, I didn't mean for them to be-- this was just the banter in our online relationship." But he was not allowed to present that evidence because as a matter of state law, his intent didn't matter. And so, the court has to decide whether that state law is constitutional. 

Dan: So, state law was looking at these from an objective perspective. Would these statements reasonably caused a victim to feel afraid or been reasonably understood to be threats? 

Will: Right. If you got this string of messages, what would a reasonable person in the victim's position have thought rather than what was he trying to do? And the court says state law is unconstitutional, that there does have to be some heightened proof of mens rea. 

Dan: Yeah. And the case is interesting because you end up with three crystallized positions. And in the sense that you have the majority opinion, it's Justice Kagan, joined by the Chief Justice, and Justices Alito, Kavanaugh, and Jackson. And then you've got an opinion concurring in part and in the judgment by Justice Sotomayor that Justice Gorsuch joins sort of saying, "The court basically doesn't go far enough. The court should have resolved this on different grounds, but I also would go have a higher bar." And then, you've got short thing by Justice Thomas, and then a longer dissenting opinion by Justice Barrett, joined by Justice Thomas, who think the court goes too far and want less protection. So, kind of three camps and they don't perfectly line up ideologically, right? 

Will: Yeah. I think that's fair.

Dan: At least in terms of where Justice Gorsuch is. And we have Justices Kagan and Jackson with the Chief Justice, Justice Alito and Kavanaugh.

Will: I find, to talk about, quite sure-- I understand one of the points that the Gorsuch Sotomayor team makes or that Justice Sotomayor makes. I'm not sure I totally understand where to place them on the spectrum. Yeah, all of these are not obvious, how everybody lines up. Well, what do you think?

Dan: In terms of the bottom line? 

Will: Yeah.

Dan: I think it's really interesting. So, I read all three of the opinions, and I found things to like about each of them. The Kagan opinion is interesting, and it has some of the same features of some of her substantive criminal law opinions that we've talked about here and there. Insofar as it relies on a lot of model penal code type concepts, it doesn't really say that's what it's doing, but it sort of lays out this hierarchy of mens rea standards that comes from the model penal code. It says, "The law of mens rea offers three basic choices. Purpose is the most culpable level. And then next down is knowledge, and the next is recklessness." And it sort of uses the definition of recklessness that comes from the model penal code, which is conscious, disregard, but substantial and unjustifiable risk that the conduct will cause harm to another, quoting a case called [unintelligible [00:30:34], another Kagan case from a little while ago. 

But then, the thing sort of lays these out and then the thing that's interesting is that what it ends up doing is sort of saying, "Well, there's threats. They're not protected, but there's this concern that we have that how we punish that could cause this chilling effect. And so we need to tinker with the standard a little bit to create some breathing room. And so we think the right way to do that is to set the line at recklessness." 

Will: Yeah. And how do we know it's recklessness rather than intent? And how do we know that recklessness does that better than intent or something stricter? 

Dan: Well, I think the court thinks that some places you need intent because there might be protected conduct, protected speech that you care about that's right on the other side of the line. And so, we want to have a higher barrier to avoid chilling. But here, we're less worried about that because of the kinds of speech at issue. 

Will: Yeah. It's interesting also because I guess this comes up in other kinds of unpredictable speech. So, I think for incitement, we require intent rather than just recklessness. You have to actually be trying to get people to do something. For libel, like New York Times v. Sullivan type cases, it's recklessness is the standard, right? 

Dan: Yeah. Although arguably it's like an extreme version of recklessness. 

Will: Yeah, but the point is, you can be prosecuted for-- you can sue for libel, even for a public figure, for things that even if you didn't know is false. 

Dan: Yeah. 

Will: There's some level where it doesn't require knowledge, recklessness is sufficient. So it's interesting that we have this different array of different mens reas that are apparently all constitutionally required, but slightly different. It seems awkward. I mean, maybe that's right. 

Dan: Yeah. And there's a debate running through all the opinions in the case about what some of the other areas of First Amendment law have said about the required mens rea. Justice Sotomayor says that "in obscenity cases, you actually need knowledge before something obscenity can be punished." Justice Kagan says, "We haven't really resolved that." Justice Barrett says, "No, you only need the knowledge of what the thing is, but you don't need to have any knowledge of obscenity." A lot of disagreement about precedent. One--

Will: Go ahead. 

Dan: No, you go ahead. 

Will: This last point also goes to this-- there's this funny footnote in the court's opinion about knowledge of what footnote two, where the court says, "First we have to clarify between awareness of a communication's contents and awareness of its threatening nature because I guess everybody agrees you have to have awareness of its contents." So, the court uses the example, "If a defendant delivers a sealed envelope without knowing that it contains a threat inside, you're not liable." Or "so too (though this common example seems fairly preposterous) if a foreigner ignorant of the English language who would not know the meaning of the words, somehow manages to convey an English language threat," I don't think that's as preposterous, Justice Kagan thinks. But this case is assuming you do understand the content of your words, but you don't understand why they're threatening, that's like another--

Dan: Yeah. Here, you do need recklessness, the defendant needs to be proven to have acted recklessly with regard to the risk that the other person would take it as a threat. Right? 

Will: Right. 

Dan: There's this interesting debate running through the different opinions about this case. Virginia v. Black. This is this case about state statute that criminalized cross burning that was done with the intent to intimidate. And that case sort of came in the wake of an earlier case called R.A.V. v. City of St. Paul, which had struck down a local cross burning ordinance as sort of a speech restriction. But the court in Virginia v. Black said, "This is okay to the extent that it requires proof of intent to intimidate." But there's this question running through the opinions here about, was that a constitutional ruling? Was the court saying that's the required standard for the cross burning statute to be unconstitutional or not? I went back and looked at it again. There's a Marx rule situation where Justice Scalia doesn't join everything in that opinion. But gosh, I really thought that Justice Sotomayor was right here actually, that if you look back at it's hard to make sense of that opinion other than it's saying that for it to be punishable, there needed to be intent. 

Will: Yeah. 

Dan: What do you think? And by the way, that's always what I had understood the case to stand for. But then, you have both the majority and the dissent by Justice Barrett contorting themselves to say that's not really what that case was about. It's a little bit more complicated than that. 

Will: Yeah, I guess I'm with you. I share your understanding of Virginia v. Black itself. I think this is actually the case, the reason I went to law school. 

Dan: Say more. 

Will: When I was in college, I took a class on the First Amendment taught by Dennis Hutchinson, who recently retired here, and this was one of the cases that was pending, and we sort of talked through on both sides. And then, the night before one of my math finals, I was staying up late, like reading the oral argument transcript in this case, trying to understand what's going on. And realized it was a sign that I shouldn't maybe pursue PhD study in math but should find some way to get into this law thing. 

Dan: How did the math test go? 

Will: I got an A but-- 

Dan: Were you on the way towards a math PhD otherwise?

Will: Well, I was majoring in math. I was thinking of becoming an economist, statistics, something in that world. 

Dan: I don't think I knew that. I must have known you majored in math, but I guess I would have thought you as like being more of a philosopher type if you weren't going to be a law type. 

Will: I took a philosophy class and loved it, and the professor told me that if I liked his class, I should not major in philosophy because all the other philosophers thought that the stuff he did was unimportant. 

Dan: What was the subtopic?

Will: It was called Philosophical Perspective. It was sort of a form of analytic philosophy. And then, I read a book by A. J. Ayer called Language, Truth and Logic-

Dan: Classic.

Will: -logical positivism. And I emailed many of the professors in the philosophy department cold and said, "I read this book. It seems obviously correct. But strangely, it does not seem to have successfully destroyed the field of metaphysics. So, there must be some sort of convincing response. Could you please point me to the convincing response?" 

Dan: Were you ignored or--? 

Will: My memory is like half of them responded to me, and of the half that responded, half of those had a substantive response like, "Oh, go read Hilary Putnam," or, "Go read J. L. Austin." And I did, and that was interesting but did not satisfy me. And that just made me concerned that philosophy is not going to be a good home for me. 

Dan: Where were you on the early Wittgenstein? 

Will: Early Wittgenstein is pretty good. 

Dan: He's a logical positivist. 

Will: Yeah. 

Dan: [crosstalk] 

Will: [crosstalk] -might be brilliant, might be incomprehensible. I'm not sure. 

Dan: I would say that about the early as well. 

Will: Yeah, I like David Hume a lot. David Hume is the proto logical positivist. 

Dan: Yeah. 

Will: Anyway, I think I share your view of the opinion. I guess I do-- [crosstalk] 

Dan: [crosstalk] -wrote a thing a long time ago, the very first piece of legal scholarship I wrote implicated these issues, by the way. 

Will: Really? 

Dan: It was a case comment in Harvard Law Review, my two all year, published in 2007 about this case coming out of the Ninth Circuit called Harper v. Poway Unified School District. I don't know if you remember this one. This is the case about--

Will: Yeah. [crosstalk] t-shirt. 

Dan: Yeah. The school had a day of tolerance sort of in support of gay rights, and the student in question didn't like that, objected to it, and so wore a t-shirt, sort of noting his disagreement, said, "I will not accept what God has condemned. Homosexuality is shameful." And was disciplined. He brought a First Amendment suit under a classic case called Tinker, which says school can't punish students for their speech that isn't disruptive. If they're just sort of wearing black armbands or something to make a protest, they're allowed to do that. First Amendment doesn't stop at the schoolhouse gate.

Ninth Circuit opinion by Justice Reinhardt did something very, very wacky and powerful dissent by Justice Kaczynski, so two of the Ninth Circuit rogues. And I took a middle path where I said I actually relied on Virginia v. Black and said, "Look, if you're talking about when a student can wear a shirt or be disciplined for wearing a shirt that is arguably derogatory towards another group or that would cause certain students to feel bad, you should look at intent. The intent of the speaker should matter." Are they doing it to harass another student or not or just making a more generalized political message?

Will: There you go. 

Dan: Agree? 

Will: Well, do students have First Amendment rights? 

Dan: Well, okay, but take that for granted. 

Will: Yeah. Okay, well, same question-- So, look, so I was going to like this analysis, generally being a pro free speech guy, and I do think it's consistent with Virginia v. Black, but it's also not clear the court was really thinking about this problem in Virginia v. Black. I feel like it reflects their assumption that threats are about the intent to intimidate. And again, that assumption is sort of borne out in state law anyway. And I got the impression that nobody was really thinking about, "Well, what about--" They mentioned that cross burning originally comes from medieval Scotland. "What about some weird Scottish Highlander who appeared here by time travel and had no idea that cross burning was conveyed this?" Or like, I get the sense that was just not on the table, what about a mentally ill person who thinks he's engaged in some other conversation? So, it both seems right about the case, but I also don't know how much we should read the case for. 

Dan: Maybe. I guess I sort of read the case as saying it was constitutional because of that. 

Will: Yeah, but again, it's constitutional because it's limited to intentional threats. But had Virginia then amended the statute to say, "Also, we're going to throw reckless threats in there," there would have had to be a Virginia v. Black too, where they say, "Is that consistent with the reasons we think intent is okay?" And I guess part of the question is why do we have a threats exception? What is it trying to capture? If the threats exception is trying to capture something like incitement, you're essentially planning a future crime that you're just communicating now, then I think you'd want intent, because it applies. The presumption is that there is some future crime that you have in mind or that you're at least like-- [crosstalk] 

Dan: I don't think that's right. I think you can intend to scare someone even if you have no intent to actually carry out the threat, right? 

Will: Well, right. But at least you're representing yourself as somebody who is going to commit a future crime. Whereas if threats are more just about the harm to the victim, which is about like, "Look, this is really unpleasant stuff to get, and we can safely carve that off as prohibited without threatening the rest of the First Amendment," I take it that's the instinct behind an objective test, just to say the instinct of-- especially the internet, like, "Look, some of this stuff is just nasty, adds nothing to discourse, and you shouldn't do it." And under that test, an objective test would be adequate, right? 

Dan: Yeah. But nonetheless, you could think it's more about the victim, but nonetheless feel like you still need this guardrail of an objective test because of the risk of error of a subjective test. 

Will: Right. That's how, I think, it's sort of how the majority ends up, is like they're partly thinking about it from the point of view of the victim, but they want some guardrails, and thus recklessness is a sufficient guardrail to balance them. What about the methodology here? You mentioned that the modern frame for this doctrine is this formalistic, like, "Oh, well, these exceptions were handed down from James Madison to the present, and so here they are." And yet, here you have the court, including the author, Stevens, engaging in a much more common law attitude about those. Is that-- 

Dan: I totally agree with that. I thought that was really interesting. There is, in majority, very little engagement with history to try to find some grounding for this. It's really, "Ah, we sort of get to make it up." A lot of reliance on New York Times v. Sullivan, famous First Amendment case about requirement of recklessness, actual malice before someone can be punished or held liable for speech about public figures on a matter of public concern. Very functionalist. This case does divide the six conservatives, I think, sort of in half. We've got Roberts, Alito, Kavanaugh with the majority. And then you have Gorsuch with Sotomayor, and you have Barrett and Thomas in dissent, which I think maybe this is sort of like most originalist to least originalist. Is that fair? Maybe you'd put Gorsuch and Barrett with-- Thomas the most. Gorsuch and Barrett-- Gorsuch second most, and then maybe Barrett and then the rest. 

Will: Yeah, maybe. Maybe also if there's a formalist-- I don't know if it's the same, but a formalist versus functionalist line, I think of Alito, Kavanaugh and Roberts in different ways would be much more functionalist. 

Dan: Well, I guess I see those two lines as overlapping, a little bit more distinct. 

Will: We don't have to-- yeah. Do you think that combo whether it makes sense? Does accurately describe the doctrine that the court takes pretty seriously? Like, you need these historical exceptions, but then it engages in pretty free common law reasoning what is the libel exception and defines the libel exception in a way that clearly would not have been known at the founding. Or, Justice Scalia has an old opinion in a case called Williams v. United States about purveying or advertising obscenity online, where he says some very similar things. He says, "There's always been an obscenity exception. And then in the middle of the 20th century, we defined the obscenities exception really narrowly to make sure there was enough breathing space for the non-obscene stuff. And then, we realized that we defined it so narrowly that we had to add in child pornography." Admittedly, I think, an accurate description of what the court had done but I wonder what method that is. Is this general law approach to freedom of speech? 

Dan: I think it's a common law approach, which is slightly different [crosstalk] David Strauss common law. Sort of, "Let's rely on precedent. Let's make it up as we go," which is not the same thing as a general law approach, I don't think. 

Will: Yeah, you're right. It's a little more judge made. 

Dan: Yeah. 

Will: A little more hands-on.

Dan: Consciously so. And Justice Barrett accuses the majority of doing a Goldilocks approach. And I thought Justice Kagan had a really nice zinger in response. She says, "In law, as in life, there are worse things than being just right." I like that so much. It's made me wonder how often when someone has-- the dissent says something and the majority has some really great response to it, how often does the dissenter just yank that from the dissent? Because there's a lot of revision back and forth. But I guess that's sort of like conceding defeat if that happens. 

Will: I think some dissenters would but yeah, I think you either-- sometimes, the dissenter doesn't agree it's a good response. And sometimes, the dissenter just might have enough of a sense of humor that they--

Dan: I thought that was nice. 

Will: Yeah. 

Dan: Okay. We've got to save a little bit of time for the other one if we're going to get to it. Any final things you want to say about this? 

Will: Just one thing about Sotomayor-Gorsuch dissent. They make this interesting point that was made in an amicus brief by my colleague, Genevieve Lakier, as well as Eugene Volokh and Evelyn Douek, that it's weird to think of this as a threats case because what's really going on is the separate problem of stalking. It's less about the fact that two of the messages said die than it is about the fact that there are like hundreds and hundreds of them and she doesn't want to receive them. So, that just presents a whole different-- is there a stalking except in the First Amendment? How do we think about it? What are its elements? Ought to be a separate question, and you ought to be careful in this case not to compromise what's true of that case, which Justice Sotomayor and Justice Gorsuch note explicitly, and the majority I'm less sure about. But in a way that makes this sort of a weird vehicle.

Dan: Yeah. So, they seem to be deciding a much bigger question. And one that resolves this issue, not just for criminal law, but just for all contexts. Arguably, that's a Justice Barrett point and dissent. 

Will: Yeah. That's as hard to figure out because this is sort of how the state prosecuted and teed up the case, for better or worse. So, I can't tell in a future stalking case. If there's a separate statute that doesn't turn on this at all, will there just be a new test or not? But that is part of what makes the case weird. But let's talk about the other case.

Dan: Okay. Other case, or cases rather are the two student loan cases. 

Will: Is this one of those times where the cases are going to be known? Like the slaughterhouse cases, the civil rights cases, they're going to go down as like the-- Jack Balkin tried to get that to happen for NFIB v. Sebelius. He tried to get them labeled as the healthcare cases. 

Dan: Yeah. 

Will: These are going to be--[crosstalk] 

Dan: Sometimes, the Supreme Court reporters actually put those titles in the US reports, that helps a lot. 

Will: Yeah. Didn't do that here. 

Dan: So, one of these cases is unanimous. Everybody's happy. Seems like this is supposed to be one of the most contentious hot button political cases of the term. And then, you get to this one, and it's a unanimous opinion by Justice Alito. No separate writings.

Will: The Fifth Circuit is not happy.

Dan: And there, in that case, we find that some of the plaintiffs who were trying to enjoin President Biden's student loan relief don't have standing. No standing.

Will: Indeed. 

Dan: Why not? 

Will: So, the plaintiffs, Brown and Taylor, their complaint is the way they're injured is-- they wanted more relief or they wanted relief, or they wanted more relief and--[crosstalk]  

Dan: But they also want to be able to say that the President has no power to do this at all. 

Will: Well, that's the problem. They have no standing because their injury is they didn't get more relief. But what they're seeking is to take the relief away from everybody. If I can't have two cookies, then you can't have any.

Dan: And then, they also have this argument that, "Well, you could have done this under a different provision." 

Will: That's the sophisticated version of their argument. And Justice Alito, there's this sort of delicate passage where Justice Alito says, "Their theory of the case has not always been clearly explained, has not always been readily ascertainable or consistently described during this litigation. But the most generous way to understand their theory is you went through the Heroes Act, which doesn't require notice and comment and is illegal. If we stop you from going through the Heroes Act, you probably will still give us relief under some other act, the Higher Education Act, which does require a notice of comment. During which time, we will issue comments saying we should get relief, and maybe we will." So, stop this giant program, because then they'll do it over again. And when they do it over again, it'll go better because we'll get to participate and then we'll get our relief. 

The majority sensibly enough does not buy it. If everything in there were true and were sure it happened, you can see the connection between what they want and what their injury is. But that's the speculative chain of causation involving third-party actors. That's like a classic area where the court finds no standing. 

Dan: Everybody seems to think this is easy enough. Okay, happy to agree. 

Will: Yeah. The only wild thing about this is that the Fifth Circuit had, I guess, bought this theory of standing. 

Dan: Fifth Circuit buys a lot of theories.

Will: Yeah. Well, I think the Fifth Circuit's reversal rate at the Supreme Court this term was extremely high, which is where the idea of the Fifth Circuit being the new Ninth Circuit came from.

Dan: Yeah. And also, in a number of places where the court seems to say the Fifth Circuit really screwed up, right? 

Will: Yeah. 

Dan: The court thinks this is pretty dumb. 

Will: Right. And the thing I like most about this opinion, which is something I'm writing about with Sam Bray in an article that will come out this fall, is the attention to sort of remedy and relief. It's a standing case. But the problem is that we pay attention to what are the plaintiffs actually asking us to do. Does that make sense in light of the reasons that they're in court? The court focuses on that and concludes the answer's no. 

Dan: All right. That leaves us with the more controversial one, Biden v. Nebraska.

Will: Oof.

Dan: Which comes down, I think, the way you predicted it would when we previewed this case live for a studio audience here at Washington University in St. Louis, School of Law, which is that the court says, "Yeah. I mean, not everybody has standing, but MOHELA," is the Missouri entity that services loans, "is going to be negatively affected by this." And Missouri, even though MOHELA didn't bring suit, Missouri, it's basically owned by Missouri, controlled by Missouri in some sense, and that's enough to give Missouri standing.

Will: Yeah. I think this is theory that I called the least wrong theory of standing. 

Dan: Yes. 

Will: I still think it's wrong, but it is the least wrong theory of standing.

Dan: Yeah. Let's talk about what Justice Kagan says about that in a moment. But the court says, "They're standing." You only need one person to have standing, one party to have standing. 

Will: Why do you only need one party to have standing?

Dan: I don't know. I thought you would know that. I mean, presumably insofar as one person does, there's a live suit, there's a live case or controversy and the court can reach the merits. It sort of depends what that one person is asking for, right? 

Will: Well, wouldn't you still need to know who the parties are to the suit? First of all, if Nebraska doesn't have standing, shouldn't this case be called Biden v. Missouri? 


Will: Second of all--[crosstalk] 

Dan: It can still be a party if the court determines you don't have standing. It's not like we take your name off. If you file suit in the district court and turns out you don't have standing, they don't call the case like Blank v. Epps. They would call it Baude v. Epps.

Will: If you have no standing to sue, shouldn't you cease to be a party?

Dan: The suit existed. It was resolved. It's like still written down, right? 

Will: No, but you should go away. This is a point that Andrew Bruhl makes in his article on this, the one good plaintiff rule. Who even is bound by the judgment one way or the other? You'd think that if you're not a party, if you don't have standing, you shouldn't be entitled to the rights and responsibilities of a party. You shouldn't be bound by a judgment for or against you. So, at some point, somebody-- I mean, maybe the appellate court doesn't have to worry about it. Maybe the appellate court can say, "Well, we're going to opine on the law and somebody else should clean up who the parties in this case are." But it seems like somebody should figure out who the parties of this case are.

Dan: Yeah. I don't know if it matters practically because basically the case says it's a Supreme Court case saying something the government did is illegal, right? 

Will: Yeah. 

Dan: And that's going to apply to the whole country just necessarily because it's the Supreme Court--  

Will: Well, that's just it. Suppose that the government wanted to play hardball, wanted to play Mark Tushnet, and say, "Sure. We'll obey this decision as to the parties. We're going to make every other party sue and get their own judgments." No, I guess they're not going to do that. But if they did, we'd want to know who that is.

Dan: And that would mean that they can't cancel loans that are serviced by MOHELA, but they cancel other loans.

Will: I guess so.

Dan: Yeah. 

Will: I also wonder, could they just cancel loans and pay MOHELA? [chuckles] 

Dan: Hmm.

Will: If MOHELA's injury is lack of a finder's fee, just say, "Fine, here's a check."

Dan: Yeah.

Will: And this goes to remedy, I guess, which is one of my hobby horses. But why is it that the fact that MOHELA didn't get its fee means that the only remedy is that 43 million people don't get loan relief?


Dan: Good question. 

Will: There's something in between those.

Dan: Yeah.

Will: Remedy supposed to be in some way proportional to the harms. 

Dan: Not today, I guess. Not in this case. 

Will: Yeah. 

Dan: Okay. 

Will: [crosstalk] -MOHELA.

Dan: I think we walked through the arguments for standing on that last time, so go back and listen to that episode. But there's certain adjectives we use for dissents usually, and I think this one deserves the adjective "vituperative," which is an adjective that I don't really see in daily life other than describing dissents. 

Will: [laughs] 

Dan: But Justice Kagan is really mad about this. All but sort of says this court is just like being a political body and just deciding stuff. It has no power to decide.

Will: Okay, we can argue with the tone in a second, but yeah, it's a spicy dissent. It sort of has to be, right? Because if you're going to say, "Look, this is wrong because of MOHELA [unintelligible [00:57:28] standing, those don't immediately get the blood flowing if you're not a fed court professor. So, Justice Kagan's trying to make it understand why you care about this, why this is an important constitutional guardrail intended to keep courts acting like courts.

Dan: Yeah. But were you going to say about tone? Because we have this interesting response to the tone by the Chief Justice. 

Will: Look, Justice Kagan's dissent is sharp, and of course I think it's correct for all the reasons I've already said, and I think it's well written. I didn't exactly get anger from it though. I got just business. But yeah, there's this passage in the three-asterisk portion of the majority opinion, one of my favorite portions of majority opinions. "It has become a disturbing feature of some recent opinions to criticize the decisions with which they disagree as going beyond the proper role of the judiciary," da, da, da. "Reasonable minds may disagree with our analysis. In fact, at least three do. See the dissent. But we do not mistake this plainly heartfelt disagreement for disparagement. It is important the public to not be misled either. Any such misperception will be harmful to this institution and our country." So, the majority is trying to spin this as, "Look, there's a heartfelt disagreement, but it's not disparaging the legitimacy of the court."

Dan: Yeah, but that is sort of a criticism of the dissent, right? It's trying to spin it, but--

Will: No. I read this in the most naively "listeners are going to hate this" way possible that the Chief is saying, "Look, there's a line like the line between sharp dissent and like illegitimate bomb throwing. And the dissent is on the right side of the line. Good job, dissent. Don't be misled into thinking they're bomb throwing." And I don't read the dissent as dispelling that.

Dan: I do, especially in light of the fact that Justice Kagan feels compelled to respond to it and deny what she takes to be the charge. She's saying, "Behest of a party that has suffered no injury, the majority decides a contested public policy issue, improperly belonging to the politically accountable branches and the people they represent. In saying so and saying so strongly, I do not at all disparage those who disagree. The majority is right to make that point as well to say that reasonable minds are found on both sides of this case, and there's surely nothing personal in dispute here. But Justices throughout history have raised the alarm when the court has overreached. It has exceeded his proper limited role in our nation's governance, would have been disturbing and indeed damaging if they had not the same is true in our own day." I mean, that's a direct response. 

Will: Yeah, but again, I read that as she's agreeing. It's not personal, it's not angry. 

Dan: [chuckles] She is agreeing but she is also responding to a charge. She is saying, "Yes, you're right, but I'm allowed to say this, and it would have been bad if I hadn't." 

Will: Yeah. [crosstalk] 

Dan: This is not an educational lesson for the public. This is a response to the Chief Justice.

Will: Yeah. Well, I think these two paragraphs are carefully negotiated in agreement. So she is saying, "It's a sharp dissent, I have the goods in the majority and they are exceeding their role out of the constitution." And the majority is saying, "Fair enough, that's your charge. But we want to be clear that you're not crossing the illegitimacy line, are you?" As Justice Alito would say to the Wall Street Journal, "There comes a point when it crosses the line." She's not crossing the line. The line seems to be made up. Like, what is the line? But they all seem to agree there's a line. And Justice Kagan is-- [crosstalk] 

Dan: If you can read these two things and say these are just two people that are completely in agreement, I think that's ridiculous. We have limited enough time to record that I'm not going to-- this is going to be one of those places where I don't keep pressing you and people will be annoyed. But I'm just going to say, for the record, I think you were being deliberately obtuse here. I don't believe you believe that. 

Will: This is one of those times when I cannot understand why everybody else is taking crazy pills. Obviously, they disagree about the standing issue. Obviously, they disagree with the standing issue, but then they totally agree about the legitimacy question. They're saying both like-- And it's tough as a dissent to say, "You're violating the Constitution. You're violating Article III. You're exceeding the power." I'm not a bomb thrower. 

Dan: But she says Justices throughout history have raised the alarm. I think at that point is saying, "This is important." It is important to say this. It is important to raise the alarm. And to the extent that the majority is implicitly saying we're going too far, which I think it is, which I think any reasonable person would think it is, that it still is her duty to say so. 

Will: Yeah, that's not what the majority is saying. All right. I know--[crosstalk] 

Dan: I'm going to--[crosstalk] 

Will: Listers are going to drag [crosstalk] for this. I know they are.

Dan: Just don't-- leave me out of it, people. I'm saying quite firmly that he's wrong, but I'm not going to spend 10 more minutes on it. 

Will: Okay. 

Dan: We have to stop recording very soon because I've got to go home, get my kids. 

Will: All right. You want to say hello to the merits? 

Dan: Yeah. There's this interesting question about the statute here, which we talked about, and I think we both said it's pretty hard to see the government winning if they get to the statute. And here, the court gets the statute and looks at the language that says, "The Secretary of Education can waive or modify any statutory or regulatory provision applying to the student loan program." And as I understand what the majority does, it spends almost all of its time talking about modify and sort of says, "Well, this is this huge thing, and it's radical," and all these implications--[crosstalk]  

Will: And this comes from a prior Supreme Court case about the meaning of modify. [crosstalk] 

Dan: Yeah-- hold on one second. Sorry. That was Danielle. She's going to need me to go in a second. But the court says, basically says that just means a super small change. 

Will: At least you don't modify something by destroying it.

Dan: And then spends a lot less about the waiver language. Whereas Justice Kagan textually, I thought, made a pretty good argument that waive or modify basically means you can either change it or get rid of it and everything in between. 

Will: Yeah. Then, they bolster it with some major questions doctrine as an alternate holding footnote that talks about my argument about sort of causation. [crosstalk] 

Dan: and then we have an interesting concurrence by Justice Barrett very academic and really relying on her own scholarship explicitly, which is interesting. Not all Justices are willing to do that where she says, "Look, major questions doctrine is problematic if it's treated as a substantive canon of interpretation. But instead, I see it as just an idea that you're just looking at context and interpreting statute." And it's sort of saying, "Look, in context, does it really seem likely that the court, that congress would have authorized the agency to do this, like, a really, really big thing? I don't think so." So it's not like a special rule that says you go against the ordinary interpretation. It's instead just a tool that you use in trying to figure out what Congress meant. 

Will: Yep. Okay. Lots of interesting stuff there, but that's all we're going to talk about. 

Dan: Yeah. All right, well, lead us out. 

Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please write in with requests for future coverage or complaints about my naivete. 

Dan: Yeah. That's pod@dividedargument.com. You can leave us a voicemail, 314-649-3790. Visit our website, dividedargument.com, for transcripts of the episodes. store.dividedargument.com for merchandise. And if we don't record a new episode for a long time, it's because we've been intimidated by threats from our listeners. 

Will: Recklessly. 

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