Even Eve-ier

[00:00:20] - [Dan] 
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

[00:00:25] - [Will] 
And I'm Will Baude.

[00:00:27] - [Dan] 
And we are presented in a partnership with SCOTUSblog. So hoping to continue to have a new stream of listeners coming from SCOTUSblog.

[00:00:41] - [Will] 
That's right.

[00:00:42] - [Dan] 
And we've been taking some steps to try to enhance the show. We just updated to a different server, a different host that's gonna have a different host for our website and for the show itself that should go through everybody's feed automatically, but if you speak to anyone who's having any issues loading the episodes, let us know and we'll get it addressed. It's exciting because we we think once we get things fully set up, we will have AI generated transcripts that will differentiate between the speakers and you'll be able to follow along with them in the Apple Podcast app in real time. So that's a feature we're working on. So we will see.

[00:01:28] - [Will] 
Does this also mean that when you go to our podcast website, it'll usually load the episodes?

[00:01:33] - [Dan] 
Yeah. This was the main reason that we had to switch, and it was kind of inauspicious timing there right before this big partnership with SCOTUSblog. Our previous host decided to, you know, half the time just not really load our web site, and they didn't really seem very interested in fixing that. So we're on a new provider. We're on Beamly, which we're excited about.

[00:01:53] - [Will] 
It added to our sort of hipster vibe of, you know, the episodes are unscheduled, unpredictable, and sometimes you can't even get them.

[00:01:58] - [Dan] 
Sometimes unprofessional, unavailable. I don't know. We you know, I I feel like, you know, there's certain ways in which we're unprofessional, but I do care about some of this technical stuff. Right? I wanna I'm very insistent that we had good microphones, good editing, things like that.

[00:02:17] - [Dan] 
And so I that did not make me The

[00:02:20] - [Will] 
product was good. It's just hard to get tickets. It's like the, you know, that band where you they only did small venues.

[00:02:27] - [Dan] 
And yet somehow we're not making any money off of it. So

[00:02:31] - [Will] 
Well.

[00:02:32] - [Dan] 
Yeah. Maybe we'll maybe we'll come up with a plan there.

[00:02:35] - [Will] 
I think monetizing your ideas is overrated.

[00:02:39] - [Dan] 
You know, we don't need to get into a a debate about that. And we are trying to to use a little bit you have a little bit left in the the con law center budget, and we're we're running some ads. So hopefully hopefully that might bring some new listeners to the show. If you were one of those new listeners, let us know.

[00:02:55] - [Will] 
Mhmm. Welcome to the show.

[00:02:57] - [Dan] 
But in general, I'm trying to learn more about this this world of SEO optimization and AI based workflows and things like that, and it's it's very confusing.

[00:03:09] - [Will] 
How's that going for you?

[00:03:10] - [Dan] 
Very badly. There's a lot of stuff out there. I'm told I I have put a research assistant on this. I'm told that like the biggest way people discover podcasts now is YouTube. Yeah.

[00:03:22] - [Dan] 
Video. So I don't know. We might have to start doing that at some point.

[00:03:28] - [Will] 
Sure. Like, would we have a video of us recording the podcast or just be a video of like a blank wall?

[00:03:34] - [Dan] 
I I think we'd have to be on video.

[00:03:37] - [Will] 
Okay. Does everyone have to clean my office?

[00:03:40] - [Dan] 
No. The office looks great. All you've got in the background right now are stacks of books which make you look, you know, extremely professorial and credible. And you have your little, you know, mobile or whatever that thing is hanging off the ceiling. Yeah.

[00:03:55] - [Dan] 
That spins sometimes. I don't know. What is that exactly?

[00:03:57] - [Will] 
Yeah. It's a mobile. Okay. They said I was trying to make it me take it off when I do like a really professional Zoom call, but I

[00:04:03] - [Dan] 
Is is there some like history though? Is there some something about it?

[00:04:07] - [Will] 
I just like it. Rights over the place.

[00:04:09] - [Dan] 
I don't think you can see it. I do have my AMK Justice Kennedy bobblehead, which a podcast listener some years ago acquired for me because these bobbleheads are are very much in demand and very hard to to get. Yeah. So I might have to make my space a little nicer. But yes.

[00:04:29] - [Dan] 
So it's been a little bit of a delay. There's been a lot going on. You've been busy with, you know, I think you're still teaching. Right?

[00:04:37] - [Will] 
That's true. Teaching. We had our big constitutional law center conference last week.

[00:04:41] - [Dan] 
Oh, yeah.

[00:04:42] - [Will] 
We had our inaugural constitutional law institute journalists in residence here last week. Adam Liptak, who was here for the week doing some events.

[00:04:50] - [Dan] 
He's coming off of an interesting couple weeks.

[00:04:53] - [Will] 
Yeah. We should talk about that.

[00:04:55] - [Dan] 
Yeah. We will we will get to that. Yeah. My my couple weeks have not been as exciting. I got shingles.

[00:05:01] - [Dan] 
Have ever gotten this?

[00:05:02] - [Will] 
That's a disease. Right?

[00:05:04] - [Dan] 
It's like when you get like chickenpox comes back like decades later. I I guess if you had chicken pox, it's always still lurking in there and apparently it can come back. I thought it was like something that happened to slightly older people, but that was mildly unpleasant. But feeling better. So

[00:05:23] - [Will] 
Good. Welcome back.

[00:05:24] - [Dan] 
Those are our excuses. Alright. Okay. So yeah. The SCOTUS news.

[00:05:32] - [Dan] 
We had our built in segue, which you mentioned Adam Liptak visiting and just was it ten days ago?

[00:05:42] - [Will] 
I think so.

[00:05:43] - [Dan] 
Adam Liptak and Jodi Kantor, both reporters who report on the Supreme Court, neither of whom is kind of the day to day reporter on the court at this point, at the New York Times got a a kind of major scoop, which is they got a tranche of internal memoranda from the court related to the stay of, you know, blocking Obama's clean power plan in 2016.

[00:06:14] - [Will] 
In 2016. So these are papers from a ten year old interim docket shadow docket ruling.

[00:06:19] - [Dan] 
Yeah. And I mean, question, lots to say about this. First question is how do they get them? And, you know, they're good journalists, so we will not ever know unless the, you know, modern day equivalent of deep throat Mark Felt comes forward to to tell us what this Woodward and Bernstein have accomplished. But it it is a little puzzling, especially if you look at the memos.

[00:06:45] - [Dan] 
One of them is like not properly formatted. Some of them are signed. Right? They're they seem to be scans of physical hard copies signed by the justices by by a law clerk on behalf of their justice, right, which is very normal. Right?

[00:07:01] - [Dan] 
This is how a lot of these things work with these last minute memos, death penalty memos, so forth going out late at night sometimes and and typically the law clerk would write, you know, AMK slash DSE. Right? That's how I would sign these things. So so those are hard copies. Right?

[00:07:19] - [Dan] 
Those are hard copies that I think have been scanned. But there also appears to be one of the memos is is like a looks like a kind of draft word document that doesn't have by Justice Sotomayor, I think, that that doesn't have like letterhead or anything.

[00:07:40] - [Will] 
Yeah. Maybe just circulate that way. Maybe they just, you know I mean, there's been a lot of speculation.

[00:07:46] - [Dan] 
It's not it's not signed.

[00:07:47] - [Will] 
Right. But maybe just circulate it that way anyway. I don't know.

[00:07:53] - [Dan] 
Maybe somebody walked out of the building with like an incomplete set or, you know

[00:07:57] - [Will] 
That could be.

[00:07:57] - [Dan] 
Does it it does it could it have been someone from those chambers? I mean, probably not because that person wouldn't have tipped their hand in this way. That was little weird. Yeah. It also was incorrectly dated, think.

[00:08:07] - [Will] 
Yeah. So I mean, thing you said is we don't know where they came we'll never know where they came from. I probably right. And I think having already confidently predicted we're gonna find the Dobbs leaker, like, two years ago and still owing you a dinner, I'm not gonna embarrass myself by making more confident predictions.

[00:08:21] - [Dan] 
Yeah. I don't think we're gonna figure

[00:08:22] - [Will] 
that out. Two things. So, you know, leaking I mean, there have already been four posts about this on the divided argument blog, so I won't get too deep into the substance here on the podcast because I'm kind of bored of it. But leaking something ten years old that's kind of ultimately not that scandalous is kind of weird. It's weird if if you have something better to leak.

[00:08:45] - [Will] 
So that does, you know, make you think maybe it's somebody who whether it's a retired justice or the custodian for a dead justice or a person who clerked ten years ago and, you know, the various theories. Somebody who just found them in the trash. Yeah. But the other thing we don't know is maybe there's more. So maybe Jodi Kantor has a stack of 50 cool things to leak that she's gonna dribble out, you know, every other week from now until she wants her.

[00:09:12] - [Dan] 
That would be interesting.

[00:09:13] - [Will] 
So we'll know more. It's also it's a weird time to leak it. Like, the story came out on a Saturday in April. So, you know, one theory would be and again, not making predictions. One theory would be she has more stuff, and we're gonna get hit with it at a kind of regular drumbeat between now and the June.

[00:09:30] - [Will] 
And this was kind of the

[00:09:31] - [Dan] 
warm up. And then there'll be like a grand finale, like, you know? Yeah. Okay. I like that.

[00:09:36] - [Dan] 
Maybe we'll have like one one a year. Give us a lot to talk about. Yeah. Very puzzling. Guess if we have some over multiple years that will narrow down who could have disclosed these, I think.

[00:09:49] - [Dan] 
Yeah. I mean, I guess it could be someone in the building later who was able to go back and look at the files and sent them out. I know. So

[00:09:57] - [Will] 
so two things, I guess, just to say about this. One, obviously, I think this is bad. I'm I'm not sure if you think this is bad, but I think this is bad. Just wanna say that. But interestingly, when Adam Liptak was here, he did a a sort of keynote fireside chat with my colleague Sam Bray, and they talked about a lot of things, including this.

[00:10:13] - [Dan] 
This was after the story had come out.

[00:10:15] - [Will] 
After the story come out. He was here the week after the story came out. And he said one very interesting thing kind of in defense of this or just an interesting point. He said, you know, there are actually a lot of leaks of, like, a random fact. You know, a lot of times a story says, justice to justice Roberts switched his vote after this case.

[00:10:33] - [Will] 
Justice Alito, sources close to justice Alito say he's not retiring, those kinds of things. And he made the case that this is actually a better kind of leak because there's an objective document that everybody can read and make up their mind about. Like, we really learned something. I mean, again, I wish we didn't have access to it, and I feel bad for the the court's processes that we do. But in a way that when you just get the reporter's characterization of what an unknown source who has an agenda, you know what the agenda is Yeah.

[00:11:00] - [Will] 
Like, it's sort of a high on the gossip to substance ratio. Here, say what you will about it, but, like, now there's a document. Everybody can read. Everybody can see what these things look like. We now know, you know and that's he made the case that was much more newsworthy and in some sense healthier.

[00:11:16] - [Dan] 
That that might be. And it's although the the former kind of leak, I think, is has a much longer pedigree. Right? Yes. I feel like those kind of informal leaks for someone describing what another justice did have been going on for many decades and we think I I think, you know, we believe that in many of the instances they are the product of leaks by the justices themselves.

[00:11:40] - [Will] 
Yeah. Right? I think with

[00:11:42] - [Dan] 
the Brethren, right, I think that

[00:11:44] - [Will] 
Well, the Brethren is both clerks and justices. Yes.

[00:11:47] - [Dan] 
But I I I think there's basically consensus that there were perhaps multiple justices who were leaking that point. But documents coming out extremely rare and now we've gotten a couple, you know, this plus the Dobbs draft coming out within span of a few years. So

[00:12:11] - [Will] 
Yeah. I think it's very bad.

[00:12:13] - [Dan] 
I I have a, you know, maybe a complicated view about these things. Think having these things dribble out like this, you know, especially when here, it's not we don't know if this is complete. In fact, it seems almost likely almost certain that it's not complete because my sense is that, you know, anytime there's a thing like this, you would have you would have memos and votes from everybody, which I don't think we do.

[00:12:39] - [Will] 
Even if they just say I agree or something.

[00:12:41] - [Dan] 
Yeah. Just a short sort of I I I vote, you know you know c t slash, you know, a b, whatever. So, you know, what how would you feel about this if this had been the product of justice Breyer saying, I'm releasing my papers on a ten year, you know, running calendar. Right? This is ten years.

[00:13:04] - [Dan] 
I've released my files for that. How would you feel about that?

[00:13:09] - [Will] 
Not great, but okay. I mean, I think under I think under current law, the justices have control of their papers and they get to decide when to release them.

[00:13:17] - [Dan] 
I think they're personal property.

[00:13:18] - [Will] 
I think so. I think I think Congress could change that, although the OLC apparently does not agree with that. Yeah.

[00:13:26] - [Dan] 
At least with with respect to the president.

[00:13:28] - [Will] 
Well, there's an OLC memo about the presidential papers, and and their best argument or not their best argument. They several times make the argument that's like, well, if the presidential records act is constitutional, then Congress could do this to the court, which I take it as designed. I mean, that is the argument they would make in the Supreme Court when they try to convince the justices that Yeah. You know?

[00:13:46] - [Dan] 
But, I mean, I think these things are printed on government paper. Right?

[00:13:50] - [Will] 
I mean, the government buys it is true the government buys the paper.

[00:13:52] - [Dan] 
Yeah. And you guys the printers and I think so.

[00:13:55] - [Will] 
I well, actually, I think it turned out that didn't we land during the Dobbs leak that some of the printers were, like, not on the Internet and at least I don't know about you. So, you know, I have a printer in my office that the University of Chicago bought, but I just buy my own toner for it because it's too hard to and in fact, I sometimes buy my own paper. So we really had to trace the title of, you know, the paper and pens, it would be complicated. Now I'm not, you know, led by government. But, also, like, if it was the justice doing it according to transparent and consistent policy, like, that's one thing.

[00:14:27] - [Will] 
Like, some justices make their papers available too early. Some make their available too late. There's something weirder when it's sort of in the hands of unknown actors with an unknown agenda Yeah. And with unknown timing. Yeah.

[00:14:40] - [Will] 
I do think and Justice Breyer, by the way, I think

[00:14:42] - [Dan] 
It creates a culture of distrust. Right? Which I think is I think is bad for the court. I mean, which and then is then bad for everybody. Right?

[00:14:50] - [Dan] 
Because if it creates a partisan lockdown at the court where basically there's no information sharing between chambers, you know, across ideological slash partisan lines Right. I I think that produces a court that is actually just going to vote in a more partisan fashion.

[00:15:08] - [Will] 
Right. It would be very bad if if instead of getting memos that actually explain what the factors are and why this is instead of the whole conference, instead you just got a memo that said, you know, our team votes to stay for reasons known to our team. Yeah. Right. That'd be very bad.

[00:15:22] - [Dan] 
Yeah. Yeah. I mean, so but you said some justices disclosed too late. So you do accept the premise that there is some period of time after which it is in the public interest to have this information? I do.

[00:15:35] - [Dan] 
Okay. I do. But the number ten ten is ten years is for you is is too short.

[00:15:40] - [Will] 
I think the norm that it's only when none of the justices involved are still on the court or maybe still alive is a pretty good dividing line. I think that's the Ginsburg norm. That's I think that's a pretty good norm. So stuff, you know, becomes available, but not while it still affects people who are there doing things. But there's also a way in which I think the right answer depends on part of the justices.

[00:16:03] - [Will] 
So I think what I want is the justices to feel free to do their jobs and be honest with one another with one another and focus on getting the cases right. And, honestly, if the justices were chilled by even having the papers released, you know, that soon and wanted to coordinate on a norm where they stay secret longer, I'd be okay with that. I'd be sad, but I'd okay with that. And, of course, we don't know even now what things the justices talk about and don't write down precisely in order to facilitate those things, like like the judicial conference where the justices talk with the cases seamlessly. Nobody other than justices there.

[00:16:40] - [Will] 
There's no sort of, as far as I know, unless they've I I don't think they have, like, an AI bot transcribing it the way, like, you know, your doctor does or whatever. All you get is the chicken scratch. No. It's sort of few the justice have in their log books, and and that's probably good.

[00:16:58] - [Dan] 
Yeah. I don't know. I mean, I think there there may be a public interest at which point, you know, some hypothetical risk of chill. Like, I think if you're a justice who's chilled by the possibility that what you say will be disclosed in three decades, I mean, that I I kind of I have a lot of questions about that, about why that would be, and are you saying something that's so reputation long term reputation damaging? I don't know.

[00:17:23] - [Dan] 
Maybe you shouldn't be saying it. I don't know.

[00:17:24] - [Will] 
Yeah. Or maybe you just don't know which way the wind is gonna blow, and people worry too much. They already worry too much about sort of being the right side of history. There's a recent speech by a judge prior where he argues that, you know, a good judge should just not worry about what side of history you're on. Just do your thing, which seems right.

[00:17:41] - [Will] 
But Yeah. Humans do sometimes worry about that. And so

[00:17:45] - [Dan] 
Yeah. But it seems like maybe the the better thing is to like be on the right side of history and not like No. Mean, history could be wrong. You're gonna be criticized no matter what. Right?

[00:17:54] - [Will] 
Right. I'm just saying history could be wrong. And so it could be the best thing to do is to like, you know, be honest and true to yourself and your values.

[00:18:03] - [Dan] 
Yeah. But then accept that some people will know what you did down the road and they can evaluate it that way and they can say this person was honest and true to his values. I don't know. So but my sense is that you you know, you don't like this and you also you think the way it's been spun in the media is is way overheated and that these memos are just kind of normal, which I think is, you know, you have a good point on that. I mean, I do think that, you know, it is fair to say that the what the court did here was was more extraordinary than than, you know, than what it had done in terms of basically blocking a major presidential initiative.

[00:18:39] - [Dan] 
Right?

[00:18:39] - [Will] 
Oh, yes. I I I want I have long thought. For ten years, have thought the clean power plant stay was kind of edgy and not obviously correct on both substantive and procedural grounds. There were there are valid reasons to criticize it. Were made at the time.

[00:18:51] - [Will] 
Yep. The memos give us no new information about that. They just provide an occasion for people who weren't paying attention back then to suddenly learn about it Yeah. As for people who were paying attention to it back then to get new airtime to relitigate their old grievances. Yeah.

[00:19:05] - [Will] 
And the whole thing has just driven me absolutely crazy in terms of the low quality of public discourse by the court.

[00:19:12] - [Dan] 
You don't seem, like, mad about it though.

[00:19:16] - [Will] 
I have said, like, five times this past week, you know, the the meme, like, this is the time that's gonna turn me into the Joker. The various like, this is gonna be my supervillain origin story. Really? This one? Not not this one.

[00:19:29] - [Will] 
The discourse about it. Like, hearing people, you know, assert that there's some scandalous about the court's treatment of irreparable injury or assert that, like, because the chief justice sent the first memo, this proves that he's an activist or, like, all sorts of, like Yeah. False and dumb and misleading things, including sometimes by people who should know better and sometimes people who shouldn't. Just that you know, the reason I do this podcast, Dan, is I just want people to understand what's going on. I feel about how they wanna feel about it.

[00:20:01] - [Will] 
I just want them to understand what's going on. And I feel like while obviously seeing the memos helps some people understand what's going on, it seems to have set people's some people's understandings net backwards.

[00:20:11] - [Dan] 
Yeah. But maybe, you know, you were still willing to share the stage with Adam Liptak, so to speak. Our co blogger and your frequent co author Steve Sachs seems I would say angrier about it. He wrote a piece suggesting that Liptak should be disbarred or, like, subject to disciplinary sanctions by the New York bar for participating in this.

[00:20:34] - [Will] 
Yeah. Well, so there's a very interesting legal question about whether lawyers violate the rules of professional responsibility by aiding and abetting traditional officers and law clerks about in their own codes of conduct. And I think if you read the materials, city cites, it's a pretty good you know, clearly, the answer is yes. Now we don't know exactly what Liptak did, and it wouldn't be surprising if the Jodi Kantor, the investigative journalist, was the one who was actually doing the Yeah. The dirt dirty work, so to speak.

[00:21:03] - [Will] 
We don't know if it's a justice or a clerk. Clerks and justice might be governed by different rules. We don't know if it's actually the, you know, trustee of the Ginsburg papers, might be bound by no rules. So I think there's a lot of, you know, facts not evidence. Yeah.

[00:21:15] - [Will] 
I also, for prudential reasons, think that weaponizing the weaponizing the bar discipline process is dangerous even against people who do things that are impermissible. Yeah. But that's all I have say about that.

[00:21:30] - [Dan] 
Okay. Alright. So that bit of news out of the way. One other perhaps slightly less newsworthy, but still kind of interesting piece of news is there is this kind of situation with justice Sotomayor where at a an appearance, a speaking appearance at the University of Kansas School of Law, she criticized justice Kavanaugh's concurrence and and criticized the thing that, you know, as you said critics have called the Kavanaugh stop. This this part of the justice Kavanaugh concurrence in the Vasquez Perdomo case where, you know, he said, oh, and these stops to verify immigration status, they're brief, know, not that intrusive.

[00:22:23] - [Dan] 
And she says, I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals and probably doesn't really know any person who works by the hour. So so I would say a is is that fairly described as ad hominem? I I get annoyed when sometimes people like use that. It's a name of a precise logical fallacy and it's often used incorrectly.

[00:22:49] - [Dan] 
But at least it is ad hominem in the kind of colloquial sense. Maybe ad hominem in the precise sense?

[00:22:56] - [Will] 
I don't think it's ad hominem in the precise sense.

[00:22:58] - [Dan] 
Yeah. Because the person is saying this person lacks lacks information. Right? And that's relevant to evaluating their argument. It's not just like, you know, this person is a bad person, therefore, their argument is false.

[00:23:10] - [Will] 
And she has her own substantive argument. It's more like somebody might say to her, well, look, a reasonable person disagreed with you. Doesn't that suggest that your view is incorrect? And then as a rebuttal to that argument, she can say, that person I have better experience. I have better experience.

[00:23:24] - [Will] 
Yeah. There's no reason

[00:23:24] - [Dan] 
that I Yeah. So I agree. It's not ad hominem in that sense, but it is it is in the way people often use that word just to connote an argument that is like personal. Right? You're attacking the speaker, you know, you're criticizing the speaker, bringing the speaker's background into it, which we don't typically see justices do with one another either in written opinions or in public appearances.

[00:23:46] - [Dan] 
Indeed. And

[00:23:49] - [Will] 
she has since apologized for that. Yeah. Which I think is great.

[00:23:52] - [Dan] 
I think Both both publicly and at least according to her to directly to justice Kavanaugh.

[00:23:58] - [Will] 
Yeah. Set some reporting and my own research, and again, I'm looking forward to listeners correcting me on this one, suggests this is the first time in ten years that a Supreme Court justice has publicly apologized for anything in so many words. Justice Ginsburg in 2016 apologized for making inappropriate comments about Trump and also for criticizing NFL players who weren't kneeling for the national anthem. Instead of like and justice Kavanaugh, when he was judge Kavanaugh, I believe made some apologies during his confirmation hearing, but slightly before he became a justice. But I think it's the first time that a Supreme Court justice has publicly said, I'm sorry for something between 2016 and 2026.

[00:24:45] - [Will] 
So good for Justice Sotomayor.

[00:24:48] - [Dan] 
Yeah. Because I think what Alito said about the flag was not an apology. He issued, like, an explanation.

[00:24:53] - [Will] 
There there are lot of statements, a lot of explanations, but I was I had to think he definitely did not apologize. Yeah. You know, we spent a lot of time trying to get our kids to apologize for things. And so, you know, there's some question about, like, does apology require the magic words? I'm sorry.

[00:25:08] - [Will] 
Yeah. But I'm being fairly strict about accounts as an apology. But

[00:25:13] - [Dan] 
yeah, there was that that that situation with justice Gorsuch not masking next to justice Sotomayor, and there was kind of statement that went out, but I don't think any of it was an apology.

[00:25:23] - [Will] 
No. Not at all. Because that statement was just like more closer to this is fake news. We're great. Now for all I know, one of the one of the two of them did apologize to their own privately.

[00:25:33] - [Will] 
I assume I'm not saying the justices never apologized for things, but I guess being a justice means not having to say you're sorry, except for ten years. Okay. I was just we we did get an interesting account from a divided argument listener who was actually in the room in Kansas when this exchange happened, who, who's kinda I won't sort of quote or or discuss at length, but who just who made the point of providing context, I think, that, you know, this was an unrecorded event, where in context, it sounded like justice Sotomayor was trying to make the general point about discretion being an important part of judging and that judgment calls are inevitable, and so judges, you know, bring their own experiences to that judgment, to those judgments. And, similarly, I've heard people suggest that, you know, as unfortunate and, you know, maybe offensive as her remarks were, she was trying to be nice. Like, you could imagine a justice who instead accuses somebody else of being racist and says, you know, well, that's what you expect from somebody that race or from somebody with those racial views.

[00:26:38] - [Will] 
And it seems like she was not trying not to do that. I was trying to instead provide a sort of different explanation of their different backgrounds even if Yeah. It didn't come off well.

[00:26:49] - [Dan] 
Yeah. I wonder, you know, if that was if she went and had a conversation with him and what that conversation looked like or if she just sent him a note. Okay. So I think that's it for news, you know, as we get increasingly substantive as the episode goes on. So a couple shadowy shadow dockety things, interim docket, whatever.

[00:27:14] - [Dan] 
No not interim docket for at least one of these. For I guess for either of these. These are both I think classic shadow docket. Right? Not not interim docket.

[00:27:27] - [Will] 
Where do I start?

[00:27:27] - [Dan] 
Let's go in order of of length. The first one is a summary disposition of an appeal in a case called Abbott versus League of United Latin American Citizens.

[00:27:43] - [Will] 
Mhmm.

[00:27:44] - [Dan] 
So this is a case that is within the Supreme Court's mandatory appellate jurisdiction, the category that is vanishingly small, that there's some voting cases in there, some, you know, campaign finance cases in there. It's pretty much, yeah, federal congressional redistricting cases and constitutional challenges to

[00:28:05] - [Will] 
the Bipartisan Campaign Reform Act.

[00:28:08] - [Dan] 
Yeah. That's really about it. So it's it's a merits decision. So it's it's part of the the mandatory appellate docket. So it's not part of the cert docket, is normally the kind of what we think of as the merits docket.

[00:28:20] - [Dan] 
But this is merits, so it's not interim. Yep. But this is a category that when the court had a lot more of this kind of jurisdiction that, you know, they would often kind of treat treat kind of as cert like. Right? These are cases that the court had to decide on the merits.

[00:28:38] - [Dan] 
The court couldn't just say, we don't wanna do this and our choice to not do this is says nothing about the merits. Now the court had to actually decide the case. It had to reverse, affirm, vacate, or dismiss. But the court nonetheless basically started treating it like it it was their jurisdiction and they started doing, like, dismissing for want of a substantial federal question and things like that.

[00:29:02] - [Will] 
Right. Although that's still not cert so because it's in cert jurisdiction, like, a denial assert is not Yeah. A statement of merits. Yes. The point was they would say, there's nothing to see here.

[00:29:10] - [Dan] 
Yeah. Which is a merit. I mean, it's merits, but I mean, basically, they were trying to just get rid of these things

[00:29:15] - [Will] 
as quickly as possible. Right.

[00:29:16] - [Dan] 
The point is when they do one of these, they are deciding a case.

[00:29:20] - [Will] 
Yeah. They've they've decided a merits opinion. They've gotta comply with their oath of office. This is the substance of this is the infamous Texas redistricting, which I realize is the eve the eve case. Yes.

[00:29:31] - [Will] 
So six months ago, since now we're worried about Virginia redistricting in the other direction and so on. And this is a case where the Supreme Court had already issued a interim docket decision, staying the lower court opinion because it was the eve the eve of the election. Months later, it, of course, still the eve of the election.

[00:29:51] - [Dan] 
It's it's it's the late eve. The Yeah. It's the late 9PM of the election. It's eve-ier.

[00:30:01] - [Will] 
But this is a funny format of a summary disposition. The court has to decide this case in the merits, having already granted interim relief. And the sum total of their disposition on the merits is for the reasons set forth in Abbott versus Lulac, the interim decision, we reversed the district court's judgment. Justice Sotomayor, justice Kagan, justice Jackson dissent from the court's summary reversal. So this is technically a summary reversal on the merits in a case of mandatory merits jurisdiction that whose only rationale is the previous interim decision.

[00:30:32] - [Dan] 
Yeah. Now it's not saying the previous interim decision decides the merits. Right? It's not saying we retreated that as a matter of stare decisis because it decided the issue. It's saying, you know, basically, you know, that was maybe that was an interim decision, but the reasoning was correct and so adopted.

[00:30:50] - [Will] 
Right. Sometimes you make a provisional decision, and four months later, you're like, yep.

[00:30:55] - [Dan] 
Yeah. Still seems good. Yeah.

[00:30:57] - [Will] 
I haven't looked, and I apologize to our listeners for not looking into this, to see in the briefing whether there were any good arguments not already made in the interim decision? Because you'd imagine, having gotten the interim decision, this is the moment for the challengers to say, ah, but now that you have it on a noninterim basis, the standard view is different, or here are these facts that you didn't deal with that. And I'm sure they said something, and I don't know if they just said, you guys got it wrong. Get it right this time or what. Yeah.

[00:31:27] - [Will] 
But so do you think does this put the lie to the name interim docket? Does this prove that the interim docket is not really the interim docket because, obviously, the interim decision is final?

[00:31:40] - [Dan] 
No. I mean, because here there was there I mean, sometimes it's final. The harder cases are ones where there's an interim ruling, and and then because of timing, there never is an opportunity for the court to issue a merits ruling. Yeah. Right?

[00:31:53] - [Dan] 
I mean, here the court did. I mean, they made an interim ruling and then they subsequently issued a merits ruling. I think that, you know, to the extent that, you know, people say these interim rulings, they're, you know, they're they're rushed, you know, there's not quite time to consider all the arguments, you know, in in the court themselves, members of the court have said that, you know, like that there's a trade off between how much we say and keeping things open. You know, I think maybe the better practice would be if if the thing comes back on the merits to to write a little bit more. Yeah.

[00:32:27] - [Dan] 
Right? I mean, if they imagine that there had been no interim, like maybe imagine that the district court had stayed its own ruling pending review. What would the court have done here? Would it it probably wouldn't have reversed in a one line order. It would have said exactly the same amount that was said in the interim ruling, or would there have been a lengthier opinion here?

[00:32:49] - [Dan] 
Or like an emergency argument.

[00:32:51] - [Will] 
Right. I think there might have been an emergency argument, but there might not have been. It might have been similar. It might have even been a little shorter. Yeah.

[00:32:59] - [Will] 
Because I think in the previous one, they gave a bunch of reasons in part because they weren't sure which reason they really believed. And if you have more time, they could maybe just pick one reason. Yeah.

[00:33:08] - [Dan] 
In in the previous one, you know, looking back at it, I mean, part of that decision in in it's a short it's a short opinion. It doesn't have the magic words per curiam at the beginning for whatever reason. It's one of these kind of intermediate, not not a one line order, but not a full opinion for the court. The reasoning there is based on our preliminary evaluation of the case, Texas satisfies the traditional criteria for interim relief, but then goes on to say Texas is likely to succeed on the merits of its claim because the district court committed at least two serious errors. Mhmm.

[00:33:47] - [Dan] 
And then it goes on to address the other factors. So I think I I assume that the part that is controlling now is that merits part, those like two sentences on the merits. Those are the reasons. I mean, I I guess there also was an injunction below and some of the interim the interim factors also bear on the underlying merits of the decision to grant the injunction by the district court.

[00:34:10] - [Will] 
Yeah. Because it's still a remedial decision that Yeah. You know, on the even, EVER. Yeah. Yeah.

[00:34:17] - [Will] 
You know, this reminds me of is the civil rights era. I think the the last time the court did this kind of thing a lot was in the post Brown era after the court decided Brown. They had a lot of mandatory jurisdiction in various civil rights desegregation cases, including some where the lower courts were still thought they were bound by the Supreme Court's pre Brown case law because Brown did not expressly ever rule any of those cases and then even said this is only about education. And at least some of them in court just do things like, you know, reversed c Brown. Yeah.

[00:34:47] - [Will] 
You know, reversed c our previous unreasoned precarium. It was a that was an article by Bickel and Harry Wellington, you know, in in in proof that everything is everything's happened before, you know, wrote a sort of article that was a pardon, anti Shadow DOC article complaining that the court was releasing opinions that do not opine. So Yeah. Here we go again.

[00:35:09] - [Dan] 
Okay. Well, we've got two other things to talk about, and you have a hard stop in less than half an hour. So why don't we power through?

[00:35:17] - [Will] 
Okay.

[00:35:18] - [Dan] 
So the other thing that I went back and forth on initially said interim, but clearly not interim, but I think I think is within the the original bode shadow docket definition. Is this correct? Yes. This is a summary reversal by in a fourth amendment case coming from the District of Columbia Court of Appeals. So summary, so it was not argued, it was not fully briefed.

[00:35:44] - [Dan] 
Someone, the District of Columbia filed a petition for cert and that was just, you know, granted without further briefing, you know, without further merits briefing and decided. So final, not interim, but not merits docket, argument, a briefing, and argument docket.

[00:36:08] - [Will] 
Right. It's not it's not argued. I mean, is now a regular merits opinion. So it's not but it's not the ordinary traditional docket we're used to. There was no Yeah.

[00:36:15] - [Will] 
Yeah.

[00:36:16] - [Dan] 
It it was not put on the merits docket as such. Right. This one is a little weird in part because of the decision to intervene here. So it's it's really a very fact bound case about whether the DC Court of Appeals, on which my friend and co-clerk Joshua Deahl is a judge, but he was not on note for the record, he was not on the panel below, you know, basically applied the standard for reasonable suspicion under the fourth amendment, right, which is, you know, what are the circumstances under which a law enforcement officer can briefly detain someone based on suspicion that a crime is afoot. And the DC Court of Appeals said on a particular set of facts that there wasn't reasonable suspicion, the Supreme Court is reversing and saying actually on this particular set of facts there was reasonable suspicion.

[00:37:09] - [Dan] 
Not at all obvious to me that there is any kind of broader issue of law here at stake that required the court's intervention for other cases. Also not at all clear to me that like there's a strong public interest in like the outcome of this particular litigation, it's like a juvenile criminal prosecution. And, you know, like there's there's many cases all over the country that lower courts get wrong. So I don't I don't totally know why this was the one that got a summary reversal per curiam.

[00:37:41] - [Will] 
So the cert petition claims there's a circuit split on the following question. Tell me this. You're the expert in this. There's a circuit split on the question of when you're doing reasonable suspicion, do you get to ignore all the innocuous facts? Like, if this, you know, cop says, like, I pulled him over.

[00:37:55] - [Will] 
You know, why do think there's reasonable suspicion? Well, like, you know, he's in an alley at 02:00 in the morning with the door open, backing up his car with the door open right after some people had run away from the And you could say, well, look, is being in an alley suspicious? No. Is being out at 02:00 in the morning suspicious? No.

[00:38:11] - [Will] 
Is backing up suspicious? No. So all you've got is the flight and the open door. And I take it some courts say, you gotta look at everything together. And some courts, I guess, say, or at least arguably the the DC Court of Appeals said, you know, sort of once you decide something is innocuous, you put it aside.

[00:38:30] - [Dan] 
Yeah. You excise it.

[00:38:32] - [Will] 
Yeah. Is that do you think that's a fair description of the disagreement, or is was there a clearance to this before?

[00:38:38] - [Dan] 
I mean, certainly, prior to this, the court had said, you know, as it does in many other Fourth Amendment contexts, that it's a totality of the circumstances inquiry. Right? That's how you assess reasonable suspicion, that's how you assess probable cause, and it is it is possible that the court said how they describe that inquiry kind of describe it in different ways. It does seem like if it's totality of circumstances, you do look at everything. So I mean, I I did think that on the merits of this case, right, where the it's late at night, the officer pulls up in response to a dispatch call asking him to check out a suspicious vehicle.

[00:39:21] - [Dan] 
It's 2AM. He pulls in, two people run out of the car, and then the vehicle starts backing up while at least one of the car doors is open.

[00:39:33] - [Will] 
Mhmm.

[00:39:34] - [Dan] 
I I think on those facts, there's, you know, again, there's not probable cause to arrest anybody, but there's reasonable suspicion that I think justifies like brief detention to investigate further. Mhmm.

[00:39:45] - [Will] 
Is it isn't it, like, illegal? I assume it's illegal to drive with your door open.

[00:39:50] - [Dan] 
I assume so that the this opinion does not get into that, but I would imagine that that's the because

[00:39:56] - [Will] 
that's just I I assume that's a traffic violation of some kind.

[00:40:00] - [Dan] 
It seems like it should be. I mean, maybe like maybe if you're still in the parking lot, maybe that's not true. I don't know.

[00:40:06] - [Will] 
K.

[00:40:07] - [Dan] 
Not an expert on DC traffic code, but you know, I mean the court has said that there is reasonable suspicion when someone flees from police in a high crime area. Mhmm. This is like kind of similar. I mean, they they didn't go after the fleers, but they went after the the driver of the vehicle who from which the the fleers fled, who was doing something like a little bit suspicious. So it seems to me like.

[00:40:37] - [Will] 
And in context, backing up the door open like that right after people ran out from the car, it could just be that the car is also a flea. Like, it's true. It's not Yeah. Yeah. Yeah.

[00:40:45] - [Will] 
That suggests you're in such a hurry to get out of here that you didn't even bother to close the door. Now could be you didn't notice the door was open. Could be, you know, whatever. But Yeah.

[00:40:57] - [Dan] 
But so the court just, you know, thinks this is not a close call. Uses the word clearly twice, saying that the officer clearly had reasonable suspicion. Mhmm. And so it seems to think that this was just a a real screw up by the lower court. Whether, you know, I I whether there really is you when you have fact bound inquiries like this, I think good lawyers do their best to try to frame it as some kind of circuit split.

[00:41:28] - [Dan] 
Often that's not the case, it's just different courts using different language and different Yeah. You know, highly fact bound decisions. And, you know, I think if there were some some truly big picture legal issue at stake here, you maybe would have been more likely to see the court grant and and kind of clearly decide that. So, again, it still seems to me like a kind of fact bound application of a fact intensive standard

[00:41:53] - [Will] 
kind of case. One other thought on the case selection. I don't know if you could this. There's a there's also an article that's cited in the petition by DC. Stuart Nash, this DC court's rulings are making it harder to fight crime.

[00:42:08] - [Will] 
2025 Washington Post. Stuart Nash is a former DC superior court judge apparently. And, you know, the justice live near the District Of Columbia. Maybe one or two of them live in the District Of Columbia. So, you know, you can imagine them, again, drawing.

[00:42:23] - [Will] 
That's just the sort way I would say on their experience. You can imagine them having an unusual interest in the case just if if they have a perception that, like, crime in DC is a problem. Yeah. You know, I know there's local politics, but how much is the DC government trying to fight crime? And then here is, you know, some judge making it harder to fight crime.

[00:42:40] - [Will] 
They might they might take that personally. I'm not sure that's a thing they're supposed to do, but I can imagine happening. Yeah.

[00:42:49] - [Dan] 
Okay. So we have, you know, we don't know how everybody voted. Right? We know that there were five at a minimum to do this. Quite possibly six, you know, if you track normal ideological divisions, good chance there were six, maybe seven because we don't know what Justice Kagan did.

[00:43:09] - [Dan] 
At the end of the opinion we just have a line Justice Sotomayor would deny the petition for rid of certiorari. So she doesn't dissent, she just says it would have denied. Doesn't say anything about how she would have decided the case on the merits had the petition been granted. Correct. And then there is a, you know, actual dissent from Justice Jackson that is two and a half pages long that I think is is largely direct addressed at the question of, you know, should the court have, you know, gotten involved here in kind of a fact bound case?

[00:43:45] - [Will] 
Well, and also like did the did the lower court even do the thing that's erroneous? Yeah. Right?

[00:43:48] - [Dan] 
Like would like they sort of zeros in on the court saying that the lower court excised certain factors, and she says, look, I agree this was not what they should have said. This was poor word choice, but I do not think that word choice reflects a methodological error.

[00:44:03] - [Will] 
Right. Because and this is the thing that sort of triggered the original question of is there even a split here. You could imagine of course, it happens all the time, reasonable suspicion, that the government cites a bunch of things. The things make it suspicious, and some of them are just dumb and irrelevant. Yeah.

[00:44:17] - [Will] 
And whether you call it excising those dumb and irrelevant facts, your or point is just like, well, those didn't really move me. Like, the like, in trying to explain why these 10 facts don't move you very much, you might say, okay. Eight of these are dumb and irrelevant. I'm putting them aside. And, you know, just for purposes of explaining yourself.

[00:44:36] - [Will] 
So I take it mean, I think she just thinks there was not reasonable suspicion here. This was a reasonable decision by the lower court. And

[00:44:45] - [Dan] 
the fact she clearly saying that this was right on the merits? I'm I'm not sure that it is.

[00:44:53] - [Will] 
No. No. Maybe

[00:44:54] - [Dan] 
not. She says I she said she would have and she said even if I would have assigned more heft to a particular fact in my own first instance assessment, I would not wordsmith the lower court in this fashion. And she she agrees that the lower court erred by saying you can't look at the flight of the vehicle occupants as a relevant fact in the totality of the circumstances inquiry. Yeah. Right?

[00:45:21] - [Dan] 
I mean, I I I think that it is it is not true that like the problem that really the problem, you know, if if you agree there's a problem with the lower court decision was that they said, you know, we have to excise that because it's not doesn't get any weight. Right? Which is just saying, like what you said, which is, you know, we don't think this this is helpful. Right? We don't think this tips this is something that that, you know, adds points to the reasonable suspicion calculus.

[00:45:46] - [Dan] 
I think that's wrong. Right? I think, you know, for the reason I talked about it. If if flight can be reasonable suspicion to stop someone, it seems like it also could be reasonable suspicion to stop the vehicle from which the the person fled.

[00:46:01] - [Will] 
Right. It's just weird. I mean, the majority thinks they said they excised some stuff, and then also they got the wrong answer when they focus on the stuff that remains. So you can tell they really didn't do the analysis correctly, like the slicing and dicing led them astray. And I think you're right that the dissent does not take a position the dissent seems to say, okay.

[00:46:16] - [Will] 
They shouldn't have said excise, but they probably didn't really mean it. The and they might have gotten it wrong or might not have gotten it wrong.

[00:46:25] - [Dan] 
Yeah.

[00:46:26] - [Will] 
I mean, I get I I get the point that, like, you know, does it just a submerger point of, like, I just wouldn't grant cert here because ultimately, it's not a big deal. Yeah. But it's a little weird to say the result might be wrong and the reasoning might be wrong, but so what? Yeah. But okay.

[00:46:41] - [Dan] 
But I I do think the critique of like, you know, the court does just a couple of these a year of these classic some revs. Yeah. Why this one? I don't know. Yeah.

[00:46:51] - [Dan] 
It seems very low stakes to me. And maybe it's just, you know, we gotta fight crime in DC. Okay. We should keep going if we wanna have any hope of accomplishing what we set out to accomplish.

[00:47:04] - [Will] 
Briefly talk about one of the merits cases. We had a few minutes in the merits docket in this episode. Decided last week, there were couple of cases, but one of them, Hencely versus Fluor Corp. It's like flower with the u o reversed. Yeah.

[00:47:21] - [Will] 
Is it

[00:47:22] - [Dan] 
did you check the pronunciation? Is it fluor fluor or flu or?

[00:47:26] - [Will] 
Nope. I didn't. Okay.

[00:47:28] - [Dan] 
Yes. And this one is is kind of a a fun little fed courts case. Yeah. Kind of a real healthy case.

[00:47:36] - [Will] 
So this is a federal preemption case involving a state law tort claim against a federal military contractor who hired a gentleman from Afghanistan as part of the Afghan first initiative, military program that encouraged contractors to hire local Afghans toward military bases. This particular gentleman turned out to be a suicide bomber, so he's not a good hire. And

[00:48:05] - [Dan] 
was not properly supervised, at least according to the allegations. Yes. It was not properly supervised, you know, in ways that the contract with the military should have required. Right? There were various rules about how to supervise people on the base that it it appears that the contractor as alleged, did violate it.

[00:48:26] - [Will] 
Right. Although some of them seem sort of just like separate problems, then

[00:48:33] - [Dan] 
Yeah. But, like, making the guy, you know, he was supposed to, you know, leave the premises immediately, be escorted around.

[00:48:38] - [Will] 
Yeah. That's true. So far. Anyway, and, of course, several people were tragically, killed and injured, and one of the victims, sued the company. And the question is whether or not you can do that, whether or not you can sue a military contractor for its aft actions on a military base in Afghanistan under state door law.

[00:49:00] - [Will] 
And interestingly, the answer is, yeah.

[00:49:04] - [Dan] 
Yeah. And it's sort of a cross ideological majority opinion by justice Thomas joined by justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Yes. The dissent by justice Alito, Roberts, and Kavanaugh.

[00:49:21] - [Will] 
Is this if you Like,

[00:49:22] - [Dan] 
the three most functionalist conservative justices.

[00:49:26] - [Will] 
Exactly.

[00:49:27] - [Dan] 
In more formalist conservative justices, and the majority was the liberal justices.

[00:49:31] - [Will] 
Right. Why are the liberal justices trying this opinion? They want They're functionalists.

[00:49:39] - [Dan] 
They like tort law. Okay. They want to give the sky relief. Okay. I don't know.

[00:49:46] - [Dan] 
I mean, Francis Kagan is more formalist. Right?

[00:49:50] - [Will] 
Sure. Right.

[00:49:50] - [Dan] 
And I mean, I think that you can say I mean, so basically that there's some cases in the background here where the court had said, and particularly this case Boyle, where the court kind of just made up a special rule that says, you know, you can't sue federal contractors Yes. Under certain circumstances. Okay. This is an opinion by Justice Scalia. It's one that, like, you know, all of his law clerks say is, like, his worst decision.

[00:50:17] - [Will] 
Yeah. So I'm told that you know, so when you interviewed with justice Scalia, of course, one question you often get asked is, like, what's a case I got wrong? And I'm told that the two cases you were, like, not allowed to say were Employment Division versus Smith and Boyle because there were cases everybody would say. Yeah. Boyle, especially Yeah.

[00:50:33] - [Will] 
The court openly creates what it describes as a federal common law rule that has no real basis in, like, precedent. It's just that it openly creates as a sort of normative matter a rule that military contractors should have some immunity from certain kinds of state Yeah. State claims. And, like,

[00:50:51] - [Dan] 
if the if the government says, hey, we want you to build a helicopter with hatch that opens out and the contractor is like, no, we don't think that's a good idea. And the government is like, no, you gotta do it. Someone can't then sue the contractor for making a helicopter with a hatch that opens out and causing injury, causing causing death.

[00:51:13] - [Will] 
Right. Which is not a crazy form of preemption because you'd like, what the photographer told us to. But also, you know, it's not like you have to it's not like you had to do it. You could you could have said to the photographer, I don't know. That's really dangerous, and we're not okay with it.

[00:51:25] - [Will] 
Or, you know, something like that. So the most interesting thing, and this really is the reason the case that we're talking about at all, is that the court declines to apply or extend the Boyle precedent. And they claim that even on its own terms, Boyle doesn't apply here. It should have to be extended. But I think it it's hard to miss that the this is just an area of justice Scalia's legacy that has, like, the court has not turned on.

[00:51:49] - [Will] 
The court has gotten more formalist than Scalia Yeah. In rejecting this kind of tort rule.

[00:51:56] - [Dan] 
And the Fourth Circuit, I mean, had not so I understand it had not said the court below had not said, you know, this is squarely controlled by Boyle, but seemed to be applying some kind of military command preemption rule. Yeah. It seemed kind of broad.

[00:52:11] - [Will] 
Yeah.

[00:52:11] - [Dan] 
Basically, all state law claims against military contractors under military command arising out combatant activities are preempted, regardless of whether any conflict exists between the military's instructions and state law. So at least an exception of that scope had not been squarely recognized by the court before.

[00:52:30] - [Will] 
Right. And the court has recognized a sort of doctrine like that for claims against the actual military. Mhmm. The Feres doctrine and other dirt rules that basically says soldiers can't sue the military for anything that happens to them on duty, but but not for the contractors. Okay.

[00:52:48] - [Will] 
So just two interesting things about this I wanted to flag before we run out of time. So one is the majority relies at some length, like a good paragraph or two, on my favorite Supreme Court opinion of all time, Little versus Barreme. Oh, yeah. Also known as the flying fish. This is an '18 o '4 opinion by chief justice Marshall, where a captain of a boat illegally seizes another boat.

[00:53:14] - [Will] 
Like, there's a statute about the neutrality laws, and there's a section of the navy interpretation saying what those laws mean. That's a a not correct, but, like, sort of functionalist. And the captain follows orders and then gets sued, and the court says, yeah. It's not. Statute says you can get sued.

[00:53:33] - [Will] 
And they say it's just especially interesting because of how different it is in the law today. They say, now look. It's true. You were just following orders, but the fact that the president says something doesn't change the law. Your job is to follow the law, not what the president says.

[00:53:47] - [Will] 
And then Marshall even says in the opinion, something like, I must admit that the first bias of my mind was that even though presidential orders can't change the law, surely they at least give some sort of immunity defense. But then I talked to my colleagues, and they reminded me that's not how it works. So, you know, that's how the law used to work.

[00:54:05] - [Dan] 
And so there's a little general law back and forth about this. Justice Alito to try to dismiss and distinguish that case and one another said, well, it's a product of a bygone legal era. And then the majority opinion, you know, responds to that and says it doesn't matter. The pre Erie Federal General Common Law would have been subject to structural constitutional law just as state lies today. Yeah.

[00:54:29] - [Dan] 
It's a little general law wrinkle. Okay. What was your other thing?

[00:54:32] - [Will] 
So the other weird thing about this is the choice of law angle at multiple levels. So at some point, as I was reading the opinion before I got to the part of talking about this, I was like, why is it exactly we have a suit? I think you call this a state law tort suit. And I kept thinking, but this took place in Afghanistan. What state are we talking about?

[00:54:50] - [Will] 
Yeah. So apparently, suit was brought in diversity in South Carolina, and the assumption has been that South Carolina liable law would apply to this, which is a weird assumption.

[00:55:04] - [Dan] 
But it's but also that South Carolina choice of law rules would

[00:55:07] - [Will] 
Well, so right. So under the current rule is that when you bring a suit in federal court in diversity to figure out what choice of law applies, you use the choice of law rules of the state where the district court is located. So you use South Carolina choice of law rules.

[00:55:20] - [Dan] 
That's Klaxon. Right?

[00:55:21] - [Will] 
That's Klaxon. And then South Carolina choice of law rules may well, actually be the traditional rule, which is the tort law is governed by the law of the place of injury. So it might actually be that this case is governed by Afghanistan law, which makes more sense to me. Yeah. Like, look.

[00:55:36] - [Will] 
You're doing this tort in Afghanistan like Afghanistan law applies. And then the majority says actually that, yeah, that's possible. Apparently, people don't really get into this on Yeah. You know, the appeal. And then just Salida says, well, that's even worse.

[00:55:47] - [Will] 
Yeah. Imagine imagine subjecting this this kind of Afghanistan law. And then

[00:55:51] - [Dan] 
he has a footnote where he's like, you might have to look at Hanafi jurisprudence, a Sharia legal tradition Yeah. Which which requires looking at justice.

[00:56:00] - [Will] 
Yeah. But but I guess I think, look, if you do something tortuous in Afghanistan, well, what do you expect?

[00:56:06] - [Dan] 
Yeah. Yeah. I mean, if if if this hadn't been military related, same thing where I mean, like, if this has just been like a kind of consulting contractor who sued somebody.

[00:56:16] - [Will] 
Right. Or just like somebody who like, imagine somebody, you know, negligently sold this gentleman a bunch of equipment to make a bomb. And there's a question of, like, should they have known better and, like, have asked him, hey. What are you gonna do with all these explosives or whatever? Then I take it.

[00:56:30] - [Will] 
It would just be a question of Afghan law, whether there's some duty on selling explosives to make reasonable inquiries about whether the person's gonna blow a bunch of people. I mean, would there be some, you know, personal jurisdiction question? I did wonder a little bit about the personal jurisdiction here. So so it is I mean, it is an unfortunate feature of our legal system that American courts often make it easy to get personal jurisdiction easier to get personal jurisdiction over companies for foreign atrocities than those other countries do. And also, I guess this isn't an issue that, like, an American judgment is, like, easier to enforce against the assets.

[00:57:09] - [Will] 
If you just got a judgment in Afghanistan, you might it might be that the Fluor Corporation would say, you know I guess, it might be they'd say, well, we gotta pay it because we wanna do business in Afghanistan, or maybe they'd say, you know, well well, go fight with The UK. Go fight about it. So there are some I mean, I think there are some weird jurisdictional things in the back end about, like, why do we have a case in South Carolina about a terrorist attack in Afghanistan? But you don't have preemption. Yeah.

[00:57:37] - [Dan] 
Yeah. Okay. So interesting, you know, I mean, you have the dissent as, you know, kind of really pushing this Yeah. You know, federal, you know, interest in, you know, power, the federal exclusive federal power to wage war. Yeah.

[00:57:52] - [Dan] 
You know, there's a little bit maybe a little bit of the kind of executive power stuff that, you know, you can sort it was not surprising to me that Justice Kavanaugh was in dissent on this. Sure. Just saw this seemed like a a real Yeah. Kind of one that Kavanaugh would would join.

[00:58:09] - [Will] 
Oh, actually, do have one more thing. Do you have the opinion? Can you look at page 11

[00:58:12] - [Dan] 
of the opinion? I sure can if you give me one second. Okay. Page 11. Alright.

[00:58:19] - [Will] 
Is the line spacing in those paragraphs inconsistent?

[00:58:25] - [Dan] 
Yeah. Yeah. Okay. Okay. Between the the the carryover paragraph and then the ones on c?

[00:58:33] - [Will] 
At least the carryover paragraph has, like, some nice nice yeah. Lots of spacing similar to the paragraph before it, and the next one has quite tight lines. The third one, I can't tell if it's more like the first one or the second one. And as you scroll through the opinion, seems in general, like, some of the paragraphs are kind of smushed and some are not.

[00:58:50] - [Dan] 
Yeah. Yeah. Porter's office slipping. I I don't that may be a product of how the lines are, like, the typographic process, maybe there's you tweak it a little bit to deal with how where

[00:59:02] - [Will] 
Yeah. The

[00:59:05] - [Dan] 
section number section letter start. I I don't know. Okay. Well, that's a good catch. We'll see if that one gets It's a bad luck.

[00:59:12] - [Dan] 
I think I flagged a what I thought was a a typo missing word in an opinion recently, but it hasn't been corrected. Yeah. Okay. I think that's all we can say about this one. Alright.

[00:59:23] - [Dan] 
But kind of a a fun one, relatively nerdy, not the highest stakes in the world, and cross ideological. So a classic one for us.

[00:59:33] - [Will] 
Indeed. Thanks for listening. Thanks Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the University of Chicago Women's Board and Debra Cafaro for the support of the podcast. And thanks to SCOTUSblog for this exciting new partnership.

[00:59:47] - [Dan] 
Please rate and review the show wherever you get your podcasts. Send it to your friends and anyone you think might enjoy the show. Send us an email, pod@dividedargument.com. Go to blog.dividedargument.com for commentary from the extended Divided Argument universe. Leave us a voicemail, (314) 649-3790, store.

[01:00:13] - [Dan] 
store.dividedargument.com for merchandise, and then transcripts of the show are available on the website. If there is a long delay between this and our next episode, it will be because we have been subjected to claims under Sharia law.

[01:00:34] - [Will] 
They're illegal in Oklahoma actually.