Hoosiers

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

[00:00:26] [Will Baude] And I'm Will Baude.

[00:00:27] [Dan] So Will, I think last time I promised we would record another episode in the next week. Didn't happen. Why'd that happen?

[00:00:35] [Will] I think this one was my fault. I think I was at the beach.

[00:00:37] [Dan] Yeah, you went on vacation. I hadn't realized that you were actually going on vacation. You had spring break. I feel like law professor spring break is usually just the week where we catch up on work, but apparently once you get to Will's stature in the profession, you actually take spring break.

[00:00:53] [Will] Well, if you have a confluence of 3 things—you're a law professor with small children, your small children have a school that has the same spring break as you do, and you live in a place where it snows on March 31st, as it did yesterday—then you take advantage of spring break to go to the beach.

[00:01:10] [Dan] Yeah, you got to get out. Which beach did you go to? Florida?

[00:01:12] [Will] San Diego, my old hometown.

[00:01:15] [Dan] That's a nice beach. That's not your original home, though. You're a Hoosier.

[00:01:20] [Will] I'm a Hoosier originally, but before I moved to Chicago, I lived in San Diego.

[00:01:24] [Dan] Yes. Do you know that in Missouri, in St. Louis, the word Hoosier is actually just used to mean an idiot? Like, it doesn't actually necessarily refer to people from Indiana, but it's just like, oh, that dumb Hoosier did this. I don't use it that way, but I'm just saying that—

[00:01:39] [Will] Yeah.

[00:01:39] [Dan] I'm told that that's—

[00:01:40] [Will] That makes sense. I think in Indiana we use the word Missourian.

[00:01:44] [Dan] No, you don't. Don't pretend.

[00:01:46] [Will] We will now.

[00:01:47] [Dan] Well, no, you won't, because you're not an Indianan anymore. But you could move back there just to be able to do that. Okay, so some stuff has happened. I would say a medium amount of things, including some things that had already happened when we recorded last, but we didn't quite get to, because we had such a wide-ranging discussion about Wooden v. United States and Zubaydah. Where to start?

[00:02:12] [Will] Well, we got a couple good pieces of reader feedback about Wooden and Zubaydah that are worth mentioning at least. So Wooden was the delightful Armed Career Criminal Act case about whether or not breaking through the walls in a storage unit counts as 10 different incidents. And I think I had special praise for the lawyers who recognized what a perfect vehicle this was and filed the cert petition to get this on the Court's docket. And a friend of the show wrote in to point out that I did not mention who that cert stage lawyer was. Honestly, because I didn't know. I hadn't actually gone to look at cert petition. Turns out, you know who that was?

[00:02:47] [Dan] I do not.

[00:02:47] [Will] It was Mr. Wooden himself. He filed cert petition pro se.

[00:02:50] [Dan] Wow. So he— not only was he an effective advocate, good vehicle selector by selecting his own case as the vehicle.

[00:02:59] [Will] Yeah. Clever burglar, except for the part where it was the storage unit next to his house, which is maybe not the best move. Clever lawyer, clever cert petitioner. I hope he Goes to law school someday.

[00:03:09] [Dan] Yeah, and it is interesting. I feel like there are a couple of these pro se prisoner cert petitions that get granted every year or 2. And you wonder why, like why these cases don't get spotted. I mean, there's a very active Supreme Court bar that's eagerly looking for cases, but not all of these get spotted by Supreme Court lawyers. And for whatever reason, this one was not spotted.

[00:03:32] [Will] Yeah, the year I clerked, we even had a summary reversal off of a pro se One of those times when, you know, I guess if you're close enough to the case, so you can say, well, wait a minute, the opinion said this, but it also said this, and these things are logically contradictory. Maybe that's just easier to see if you're not just scanning for cases.

[00:03:50] [Dan] Yeah, and there also is the interesting phenomenon of the kind of jailhouse lawyer, people who help other inmates who help other inmates with their filings. Most famous of all time, I think, has to be Shon Hopwood, who's now a Georgetown University Law Center professor. And while he was incarcerated for bank robbery, he, you know, worked on, I think, two different cert petitions that were granted. One was a grant vacate and remand, and one I think was granted on the merits, if I remember correctly. And he wrote a book about that experience and is now a very successful lawyer and law professor.

[00:04:26] [Will] Now, there is a funny—I guess this came to Mr. Wooden. So the Supreme Court does have a rule that If your case is granted and you're not a lawyer, you're not allowed to argue your case pro se?

[00:04:37] [Dan] Oh yeah, and you think this is illegal. This is plausibly illegal, right?

[00:04:40] [Will] I do. There's a federal statute that says that—dates back, I think, basically to the founding—that says in all courts of the United States, the parties may plead and conduct their own cases personally, which I think means that you have a statutory right to argue pro se that the Supreme Court can't abrogate. This hasn't yet come up since the Court has formally promulgated the rule. You know, Mr. Wooden was happy to get a lawyer and didn't try to file a motion to argue pro se. But I do have a standing offer to anybody in this situation that, you know, if they want help trying to write the motion convincing the Court that they should be allowed to argue their case pro se, I'm happy to help.

[00:05:10] [Dan] I'm not sure you can do that because you're not a member of the Supreme Court Bar still, right?

[00:05:13] [Will] Well, maybe that would be—that would push me over the edge.

[00:05:18] [Dan] Okay. Have you made any progress on that?

[00:05:21] [Will] I have the certificate of good standing on my desk. I found it the other day.

[00:05:25] [Dan] Those expire, right? Don't you need one that's issued in a certain period of time?

[00:05:29] [Will] That's what's happened every time before, yeah.

[00:05:32] [Dan] Okay, get it in there. Okay, what other pieces of follow-up? One small thing, when I said a couple episodes back that we were not speaking to the youth on the show, a few, maybe two or three people wrote in to say that they are younger than retirement age and listen to the show, so thank you.

[00:05:51] [Will] Yeah, we love our small but loyal young readership. Thank you for that. Tell your other young friends. We also got an interesting comment from friend of the show Richard Re about the other case we talked about, Zubaydah. It actually inspired, I think, a blog post on his excellent blog, pointing out another just weird thing about the opinion that we didn't really dwell on, which is that there are only 5 votes for a lot of parts of the opinion, right? Because we talked about that Thomas—anyway, there are only 5 votes for a lot of parts of the opinion, and there are only 5 votes for the Court's ultimate judgment, but they're not the same 5 votes. Justice Kagan provides the crucial vote for a lot of parts of the opinion to make it an opinion of the Court, but then at the end of the day, she has a different view about the remedy. She didn't think the case had to be dismissed, as we talked about. And it's not totally clear that's okay. Like, part of the theory of a judicial opinion is it's connected to the exercise of judicial power, like the actual ruling. And so it's weird to—yeah.

[00:06:53] [Dan] Is it fair to say Richard is the nation's leading expert on the relationship between opinions and judgments? Because he's written a very well-regarded article about the Marks rule.

[00:07:04] [Will] Yeah.

[00:07:04] [Dan] Right, which is like, what do you do when there's kind of a fractured court and you're trying to make sense of what the holding is? So this is The best possible expert we could have on this issue. That is really interesting. Like, what if you have a 5-4 case and you have one person purporting to write the majority opinion with the 4 dissenters, but who goes in the other direction on the judgment? That is weird.

[00:07:29] [Will] Right. So for instance, this is what didn't happen in NFIB v. Sebelius. There are a bunch of parts of the opinion where Chief Justice Roberts says things that agree with the dissent. There are a bunch of parts of the opinion where he says why the law is beyond the Commerce Clause, the Necessary and Proper Clause, and so on. And the dissenters have the same view, but they wrote them separately. They have—that's just an opinion for Justice Roberts and the dissenters. If they decided to try to pull a Kagan and just announce, well, actually, we're going to join Parts I and II of the opinion to make those more clearly binding, even though we're also in dissent, it would've raised the same question. And I take it people would've thought that wasn't kosher. So maybe it's not kosher for Justice Kagan to do it either. I don't know.

[00:08:09] [Dan] Yeah, I think that's plausible. I mean, because to the extent you're saying this justice delivered the opinion of the Court, in what sense is it an opinion of the Court if it is describing a view that members of the Court who don't all agree on what the Court is doing should do? I don't know.

[00:08:25] [Will] Well, I mean, so it's like, look, the 5 justices on the Supreme Court might share views about a lot of topics, but they don't just deliver sort of unrelated declarations of the views of five justices. It's only when the 5 justices get together in a particular case in controversy to do something that they then also are allowed to tell us their views about things. So the question is, if the five justices get together in a case and actually don't agree on what to do, is that still enough of a band that they get to record an album?

[00:08:52] [Dan] I don't know. Well, I sense—is there maybe a new article coming, Richard? What do we think? Do you think he's going to drop one?

[00:09:00] [Will] Maybe. I mean, this connects a lot to stuff he's already written. I think it does connect to a fundamental question about the nature of Supreme Court precedent. And I guess there is this kind of a good case for this kind of opinion, which I'm more sympathetic to than Richard, would be really opinions are just about—they're really just about giving us information to predict what the Court's going to do. They don't have legal force on their own exactly. They're just like, they help you predict what the Court's going to do. And that's a major part of precedent. And if that's what's going on, then knowing that Justice Kagan agrees with all this stuff is probably useful. It's better that she give that to us. But if you don't have a kind of predictive model of the Court, it's harder to explain why this is a thing.

[00:09:36] [Dan] But it is—I mean, and that's true, but it is, it is like weird though, because then you can cite it as a majority opinion in the same way that you could with a normal majority opinion. Whereas if she had written a dissenting opinion or concurrence in part, dissenting in part opinion, you'd have to kind of like link up the plurality opinion and her opinion to make sense of it. Right.

[00:09:57] [Will] And that triggers a Marks—a dispute of whether you're allowed to do that under Marks. So in a way, if And that's exactly why it's a little suspicious. It's like, if she'd done it separately, it would've been unclear whether you add the two opinions together. So she just says, well, I'll just join that one, even though I'm dissenting from it. And now it probably will cause courts to add them together. But I mean, I guess another part of the question is, the Court called this, or the opinion says this is the opinion of the Court. And I think people usually just take that at face value. They're like, well, it says it's the opinion of the Court, so I guess it's the opinion of the Court. But we don't always do that. Like, this comes up occasionally when a court will say, like, we hold that, but then the thing they hold is kind of broad and, like, maybe kind of dicta. And then it's like, well, does that make it a holding? Because the court called it we hold.

[00:10:43] [Dan] Okay, well, I don't have an answer on that one, but it's super interesting.

[00:10:47] [Will] Yeah, a good one to watch for future very clever state secrets litigators.

[00:10:53] [Dan] What else?

[00:10:54] [Will] I think that's all we have for, for follow-up, but we have, uh, At least one big case from last time that we didn't get to because we just got so wrapped up in burglary.

[00:11:02] [Dan] I was going to follow up on my article.

[00:11:05] [Will] Oh, most important thing of all.

[00:11:06] [Dan] My and Danielle's Fourth Amendment and General Law is going to be in Yale Law Journal, which I'm very excited about.

[00:11:14] [Will] Do they listen to the show, you think?

[00:11:15] [Dan] I don't know. I don't know. They didn't say so when they told us they were accepting it, but can't hurt that we talked about it. Excited about that, and excited about that for, for a lot of reasons, but, but one in particular. Do you know why?

[00:11:29] [Will] No.

[00:11:30] [Dan] I feel like it's the right place to attack you, Will. It's kind of like your home turf. You're a Yale grad.

[00:11:37] [Will] Yeah.

[00:11:38] [Dan] Aren't you also like the president of the Yale Law Journal Association or something?

[00:11:42] [Will] I am the president of the board of directors of the corporation that owns the Yale Law Journal, yes.

[00:11:47] [Dan] Okay, and so it's, it's kind of like as we said, I'm kind of—this is kind of a sneak attack on you coming from where you least expect it. And now I'm doing it on—you were an editor of the Yale Law Journal as well, right?

[00:12:00] [Will] I was. True, true.

[00:12:01] [Dan] Okay.

[00:12:02] [Will] So, um, but I'll say I haven't published there very often. James and I have been talking about, you know, we need to get back into this, write something. I don't know whether it'd be a direct response to your piece or something that responds to you and Orin and all the other people out there who've uh, failed to see the light. But I've got, I've got a couple of, uh, of responses to you, I think.

[00:12:22] [Dan] I, I will look forward to that. Also, uh, Orin, waiting to hear, uh, where you are on these questions. I sent Orin the paper, and I'm worried that he's preparing a counterattack, but we'll see. Orin, you're still a friend of the show no matter what happens.

[00:12:37] [Will] Speak for yourself.

[00:12:40] [Dan] What else? Should we just go on and talk about opinions?

[00:12:42] [Will] I think so.

[00:12:43] [Dan] Okay, enough navel-gazing. Let's do some opinions. So where to start? I mean, do you want to start with United States versus Tsarnaev? This is one that we meant to get to on the last episode, but did not quite get there. Is that a good place to start?

[00:12:59] [Will] Yeah, let's talk about it. We've got a lot of other stuff to get to, but we should at least talk a little bit about this one.

[00:13:04] [Dan] Yeah, I mean, so this is one of two capital cases we're going to talk about today, and this one involves the Boston Marathon bomber, Dzhokhar Tsarnaev. Tsarnaev, who is the, the younger brother of Tamerlan Tsarnaev, who I think there's agreement was kind of the mastermind of the Boston Marathon bombing, but was not tried because he was subsequently killed while the police were trying to apprehend the brothers. And so the younger brother, Dzhokhar, was tried in a capital trial, federal, federal death penalty charges. And he was found guilty, and the jury recommended death penalty for several of the charges, and he was sentenced to death. And then this case was litigated in Boston, so it went up to the First Circuit, and the First Circuit actually overturned the death sentence, and the case now came to the Supreme Court. And so what are the issues here?

[00:14:06] [Will] So there are two issues that have made their way to the Supreme Court. I guess two issues that the First Circuit thought merited a retrial. One about the way the court talked to the potential jurors in trying to select a jury, confronting the obvious problem that under current law, sort of contrary to founding practice, we want the jury to be relatively—have a relatively open mind and be relatively uninformed about the incident.

[00:14:34] [Dan] Is that founding practice or is that way pre-founding practice? Because I mean, the original juries going back hundreds of years were kind of local people from the community who kind of knew what was going on. I'm not totally sure if that was still really the case at the time of the founding.

[00:14:47] [Will] I don't think—I mean, I don't think there's a requirement, you know, by the time of the founding, but I think the Constitution itself has specific, you know, locality, vicinage requirements requiring a jury like pretty connected to where the crime took place. And at least under federal practice, the marshals had a decent amount of discretion to kind of decide who to round up for the venire, which my understanding is they regularly used to juke the stats. For better or worse.

[00:15:11] [Dan] Although, you know, you might care about having a locally drawn jury, not just—not necessarily because that jury actually knows what happened in the case, but, you know, also they bring community values that might be different. You know, the founders were very concerned about cases involving British soldiers being tried back in England rather than being tried in the colonies. Shows up in the Declaration of Independence.

[00:15:32] [Will] I'm just saying, if you wanted to avoid—if you wanted to make sure your jury had not prejudged the issue, you probably wouldn't constitutionally require them to be people who would be the most likely to have a prejudgment of the issue.

[00:15:43] [Dan] Yes. And this is a real issue for this case in particular, because it's hard to imagine a higher-profile case in the greater Boston area. I mean, this was—this is a case, you know, I remember, you know, I wasn't even in the region when this happened, but I remember, you know, it was at a friend's house and we were all just kind of nervously watching TV while this kind of manhunt was going on. They—I think they shut down like all the—all the roads in the region for a period of time while they were trying to locate the brothers and they were having the shootout. And so not only would every—almost everyone in the region be familiar with the case, I mean, they might have been directly affected by it in the sense of trying to get home and the roads are all shut down. And so, you know, hard to imagine most potential jurors maybe wouldn't have at least some thoughts about the case.

[00:16:29] [Will] Yeah, no, I think this was the year I was on the job market. I think I'd been out there for a job talk. I think I was going back. I mean, I was not there when it happened, but I was talking to a lot of people, you know, while this was all going on. And I think until about 10 years ago, one solution courts sometimes used was to move the case to a nearby place where there was—so you could, you could say, you know, let's not hear the case in Boston. Let's move it out to, you know, some other part of Massachusetts where at least there'd be a little bit more removal. I don't know how much that would have accomplished here.

[00:17:00] [Dan] Worcester.

[00:17:02] [Will] Yeah, there you go.

[00:17:03] [Dan] Springfield.

[00:17:05] [Will] Those are towns in Massachusetts.

[00:17:06] [Dan] Naming places in Massachusetts that are not close to Boston.

[00:17:09] [Will] Massachusetts is small. Everything is close to Boston.

[00:17:11] [Dan] Yeah.

[00:17:12] [Will] But in a case called United States v. Skilling, About the basically Enron prosecutions, which have a similar problem in Houston. The Court basically said, you don't really need to do this almost ever, at least not if it involves a big city. So we don't do that anymore. So the First Circuit said that the district court should have asked more specific questions about each juror's specific media consumption and things like that.

[00:17:42] [Dan] So they could help the parties kind of weed out people from the jury who maybe had preconceptions.

[00:17:48] [Will] Right, or too many preconceptions. Again, I don't exactly—I mean, it's all vague. Exactly what we're looking for and exactly where the line is, it's still all kind of a little fuzzy, but that was the problem. And it also raises actually like an interesting little fed courts issue sort of lying in this, which is—

[00:18:04] [Dan] Or a big one, I don't know.

[00:18:05] [Will] Sure, yeah. Yeah, because—

[00:18:07] [Dan] And then just to set that—I think to set that up, we'd say like The First Circuit said that the trial court should have asked these questions, right?

[00:18:14] [Will] Right.

[00:18:14] [Dan] But that is not—they weren't saying—the First Circuit wasn't saying it was unconstitutional not to ask these questions, right?

[00:18:22] [Will] Right. And it wasn't saying it violated a federal statute not to ask these questions. It wasn't even saying it violated a written document like the Federal Rules of Criminal Procedure or the Federal Rules of Evidence not to ask these questions. There was no source of positive law. That required them to ask these questions.

[00:18:39] [Dan] No source of written positive law.

[00:18:41] [Will] Well, no source of—there's an old First Circuit case that said the district court should ask these questions, that the district courts—that the First Circuit said was justified by the First Circuit's supervisory power over the district court.

[00:18:57] [Dan] And this is the idea that basically courts have some kind of inherent power not only to regulate practice before them, but also possibly to regulate practice in courts that, you know, over which they have authority. So First Circuit, you know, reviews decisions of the district courts in the First Circuit, and, you know, the First Circuit is sort of claiming, well, we have this inherent supervisory power to dictate certain kinds of rules. Not clear exactly what the scope of that would be, but certain kinds of rules for the lower federal courts in our jurisdiction.

[00:19:36] [Will] Yeah. And the Court ends up being pretty skeptical about this, and some of the justices end up being extremely skeptical about this. But I'll just note sort of two, to make it sound not totally made up. For a long time, a lot of rules of procedure in a lot of federal courts are unwritten. We don't have federal rules of evidence until the 1970s, 1960s. And until then, they're kind of determined by common law. And you can imagine a lot of pleading in practice, especially in the early days, can be like that, where you just kind of have to figure out how things work and we don't obsess about codifying things in the same way now. And if you're doing that, it's not crazy to imagine that sometimes the appellate court would have some useful input for the lower courts about how that should work. And I remember this comes up a lot in practice. There are particular practices that are not technically forbidden by various rules but seem really problematic, like where the district courts, federal district courts, will just let the parties write the opinion. Because parties do submit, in a civil case, a proposed findings of fact and proposed conclusions of law, and the trial court's often kind of borrowing from them when it's ruling for one of the parties. But some circuits say, plausibly, it crosses the line if the federal court just literally takes the parties' findings of fact and conclusions of law and just re-announces that they're theirs, because you're worried that the district court didn't really exercise its reasoned judgment about every single one of those unless it went through them line by line. And other places, another practice is writing opinions at all. You can imagine a court that really didn't want to get reversed would just refuse to ever say why it did anything, because under the presumptions of correctness, you'd be like, well, he didn't get the law wrong because he didn't say anything. Sometimes appellate courts will tell lower courts, you can't do that. You got to give us something to go on. This goes further than that, obviously, but it's not crazy to think sometimes there'd be some supervision.

[00:21:23] [Dan] Yeah, and also the Supreme Court has historically claimed a certain amount of supervisory power over the lower federal courts generally. And there are various rules, some of them are kind of important rules, that found at least an original basis in the federal Supreme Court's asserted supervisory power. So for example, in Ballard v. United States, a case from 1946, the Court said, well, on the basis of our supervisory power, we're going to say that we can reverse a conviction from a federal conviction when women have been excluded from the jury because of the requirement of a fair cross-section. That's before the Court had constitutionalized that ruling under the 6th Amendment. So there's various things where the Court in the past has said, we do have this really broad power.

[00:22:23] [Will] Yeah. So now that said, so the Court, the majority says, whatever supervisory power may exist, it doesn't include this level of specification or this kind of rule. That seems fair enough. But Justice Barrett has a concurrence that in some ways goes further, might be more worth just flagging here, which is she writes a concurrence with Justice Gorsuch saying, "I'm not sure that courts of appeals have this kind of supervisory power at all." So maybe, maybe the Supreme Court does, she says, because the Constitution says we're supreme and they're inferior, other courts are inferior, and that sets out some sort of maybe relationship. Although honestly, doesn't sound like she really believes that either.

[00:23:04] [Dan] Yeah.

[00:23:05] [Will] But that courts of appeals and district courts, who are both just constitutionally inferior courts, The main relationship is appellate review. So if the court of appeals thinks the district court did something legally wrong, they can cite a legal source and tell them that they did. But if it's outside of a statute or a constitution or even a common law rule, then each court gets to regulate its own practice.

[00:23:26] [Dan] And so what do you think about this? I'm sure you have a prior—

[00:23:30] [Will] I mean, it seems very—her view seems very plausible to me, I will say. Like, while it's true that courts need to have some kind of interstitial ability to regulate their own practice, That it doesn't follow that the First Circuit needs to have an interstitial ability to regulate the practice of the district courts. And I think it's right that appellate courts get too used to thinking of themselves as just generically the bosses of the courts below them, rather than focusing specifically on the appellate review mechanisms. So that all seems right to me. And some of the prior examples seem like cases where the Court really kind of wants to make a constitutional ruling, but doesn't yet have the guts or the votes to do so. So just say that you can't discriminate against female jurors if that's what you think. That said, I'm still stuck on questions like, if the lower court is doing something not technically forbidden, but clearly designed to frustrate appellate review, like refusing to write opinions, I'm not positive that that's outside the power of the appellate court. So maybe Justice Barrett would agree. Maybe she'd say that's incidental to the power of appellate review, that you can sort of keep the lower court from frustrating appellate review or something. Or maybe we should just say we need a rule about that. I don't know.

[00:24:37] [Dan] Yeah, that's interesting. I wonder whether, you know, there's appetite to reconsider that question. She has Justice Gorsuch in her concurrence, but nobody else. Doesn't mean that she couldn't bring other folks along at a later point. So we'll see. I mean, I guess, you know, it would be interesting to really see what somebody says about the history. I mean, how long have courts been doing this? Is this something that courts really just started doing in the 20th century? Does it have firmer basis than that? And is there some way to distinguish between, you know, the appellate court doing this versus the Supreme Court doing this? And I don't have the answers to those questions. And my sense is more generally that the Court has reined in rules like this, you know, in recent decades. And so there, there may not be as much left in terms of rules that, that purport to justify the reversal of, say, a criminal conviction on the basis of a supervisory power. But there still are some things that are left there, and so I wonder what the consequences would be.

[00:25:42] [Will] Yep, I agree.

[00:25:44] [Dan] Okay, so in the absence of a federal statutory or constitutional violation, the district court's failure to ask, you know, more searching inquiries is not a ground for reversal of the death sentence.

[00:26:02] [Will] That's right. Okay. Then there's a second question, which is some evidence that the district court excluded from the sentencing proceedings, which—so here—so which the defendant thought should have been allowed in. Maybe you have a better handle on what we should think about this. The evidence is some evidence that Tamerlan, who is not—

[00:26:25] [Dan] The older brother.

[00:26:25] [Will] The older brother who's dead, who's not here, committed a bunch of other unsolved murders in Waltham, which, I don't know, is that close to Boston or far from Boston? But I gather that's also in Massachusetts.

[00:26:35] [Dan] It's about, it's about, it's, you know, half an hour. It's a suburb.

[00:26:39] [Will] Yeah. I take it this would have shown that Tamerlan was really the bad guy, and so allowed to kind of shift some, some of the moral blame to his brother. Is that the idea?

[00:26:48] [Dan] Yeah, which was, which was part of the strategy at the, the capital stage. Of the trial to sort of say that he bore less culpability. He was, you know, brother sort of dragged him into it. You know, this was, you know, significant evidence. It's kind of a bizarre twist to this case because, you know, what happened was the FBI sort of, you know, later in the investigation sort of figured out that this had happened, that Tamerlan may have committed these triple murders, and they went and interrogated, you know, one of the accomplices, an accomplice. And then in that interrogation, you know, he—the accomplice admits to it, but then it gets killed when he, you know, pulls a gun on the FBI agent. So it was just a totally, totally unexpected twist in the case.

[00:27:41] [Will] Yeah, it's a little like an episode of The Wire or something. So tell me, you probably know this area a lot better than I do. Here's my vague understanding of why this case comes up. Tell me if this seems wrong to you. In general, in a criminal case, outside of the capital context, we don't usually let the defendant stage kind of mini trials of other people not before the court. That's just like—it's a range of rules of evidence, but in general, if your defense is going to ultimately require us to prove that somebody else here committed a bunch of other crimes that have not even been charged, we don't let you do that. But in capital cases, at sentencing, we normally let the defendant do just about anything he wants. We have extremely generous rules of evidence in which you can bring in kind of things of only tangential legal relevance just to try to somehow make the jury think that you're not the extreme case that deserves capital punishment. And so this is sort of about the conflict of those two principles. Is that how this works?

[00:28:40] [Dan] Yeah, I mean, I think that maybe not necessarily a conflict, because the rules that govern the guilt phase of the trial just aren't at issue when we get to sentencing, in the sense that, in various ways, both in terms of what the defendant can bring in, but also what the prosecution can bring in, and what judges can bring in, is very, very unconstrained. And the Court has said, for example, there is no constitutional problem with a judge just relying on sort of hearsay evidence to figure out, like, you know, is this defendant a bad guy in sentencing? And particularly in the capital stage, there is, you know, these capital proceedings usually involve both, you know, aggravating factors so that, you know, the government will want to, you know, point to things about the crime that make it really heinous or make it eligible for death. And then defendant will want to point to kind of mitigating factors that bear on culpability. And that is certainly much more open-ended. That doesn't mean that there are no rules of evidence that govern that, but we have a special—in federal court, we have the special proceeding, special provision, 18 U.S.C. Section 3593. Okay. That court says—that provision says in language that's pretty broad. It says, at the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor. The defendant may present any evidence relevant to a mitigating factor, with the caveat that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading leading, which is the normal kind of rule that applies with relevant evidence. There's kind of a balancing in terms of admissibility. And here, the district court weighed the importance of bringing in this evidence, concluded that this just didn't have probative value and would be confusing to the jury. And the Court here, and this is, you know, we have a majority opinion by Justice Thomas, Court here says that conclusion was reasonable and not an abuse of the district court's discretion. And I gotta say, this is, I'm less persuaded on this. I can understand the kind of supervisory power holding that it was, you know, within the district court's discretion, you know, in terms of what questions to ask. In general, as a legal matter, we give district courts a fair bit of leeway in figuring out exactly how to conduct voir dire with the jury. But here, this does, on its face, struck me as reasonably probative of a theory that Tamerlan was just a really bad guy and was more likely to have really been the mastermind who kind of sucked his brother into it. It doesn't obviously, it doesn't exculpate him entirely. But certainly seems like it should bear on that question of relative culpability.

[00:31:55] [Will] Given the loose standards of probative value in sentencing proceedings, I see why you're skeptical of the first half of the conclusion. But the district court also gets to decide, this is just going to be too confusing at this stage of the game. And look, I wasn't at the trial. I haven't even read the trial transcript, but I feel like the district court is better positioned than most people to know whether it's going to be confusing. And the defendant has every incentive to try to confuse the jury at this stage of the game. It would be a very plausible thing that you would try to bring in these other murders that just kind of throw dirt in the water in the hopes that will sort of get the jury off track. I don't know whether that happened or not, but I'm not confident that didn't happen.

[00:32:38] [Dan] Maybe. I mean, it seems like that can be addressed by very clearly explaining to the jury why this is being admitted and for what purpose. And we generally presume that juries are able to follow their instructions, that they're not complete idiots. And at least with respect to, yeah, the conclusion that it's not probative, that I'm not—don't buy that, the confusion, maybe? But I also—it does seem like at the very least a close call. Now, I can see more generally why, you know, when I, when I saw that this petition was up, when I saw that it was granted, I mean, I, I did think that this is the kind of case, uh, a capital sentence involving, you know, one of the more high-profile crimes committed in the United States in the last, you know—

[00:33:26] [Will] Yeah.

[00:33:27] [Dan] In recent years, I, I really thought there was a very good chance the Court was going to find a way to kind of reinstate the capital sentence, that they were going to say, look, let's not overturn this. For some ticky-tacky thing. And I think at a high level, that's sort of what's going on here.

[00:33:42] [Will] I mean, look, I agree with that. I think there's obviously—for a long time, there's been this refrain that death is different, meaning in some way it's okay to apply more searching procedural rules and more skeptical reviews of death sentences to make really sure they're correct. I think that mantra has taken hold so widely that the opposite may be true a little bit now for the Supreme Court. I think when the Supreme Court sees that the Court of Appeals has reversed a death sentence on some pretty marginal legal issues, that may well cause the Supreme Court to come in very much primed to reverse, very much primed to kind of suspect the First Circuit of bad faith, and so to give all sort of benefit of the doubt. Not to the defendant, but give benefit of the doubt to the execution. Can we spend one minute on the last paragraph of the case?

[00:34:34] [Dan] Sure.

[00:34:35] [Will] Okay. So this is an opinion by Justice Thomas, who has a distinctive writing style in these kinds of criminal cases, that he likes to spend more time than necessary on kind of how atrocious the defendant's conduct is. It's just like a recurring thing. And I felt like this happened a little bit in the last paragraph of the case, where the Court always sort of sums up its holding of what happened. There's just something—I just feel like I have to read this. Dzhokhar Tsarnaev committed heinous crimes. The 6th Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one. The judgment of the United States Court of Appeals for the First Circuit is reversed. Like, there's just a little bit of a dig there. Like, you're a bad guy, don't complain, we're done.

[00:35:17] [Dan] I feel like there's a little bit of sleight of hand going on there, because isn't part of the argument the first question? about the jury questions, that there is some chance to think that there was an impartial jury here and we just never got to figure that out, right? Isn't that why we kind of want to ask those questions?

[00:35:32] [Will] Well, yes, although actually the sleight of hand is in both directions. So there's no 6th Amendment question before the Court.

[00:35:38] [Dan] Yeah.

[00:35:38] [Will] It's two challenges. He concedes the 6th Amendment was complied with. The question was, did the district court have to comply with First Circuit precedent unrelated to the 6th Amendment? And did the district court violate 18 U.S.C. 3593?

[00:35:50] [Dan] But isn't the reason we would have wanted to ask those questions because it might have revealed something that would have actually revealed that there was not an impartial jury here?

[00:36:04] [Will] Yes. No, I think the other—

[00:36:05] [Dan] It could be the case that the jury was not impartial. We just will never know.

[00:36:10] [Will] Yes. I think the more academic and honest way to say this would have been something like, the Sixth Amendment requires a fair trial before an impartial jury. For reasons related to constitutional underenforcement and the special values at stake in death cases, we have a lot of doctrines that relate to impartiality beyond the Sixth Amendment in death cases, including a federal statute and a ton of precedent. In this case—I don't know, if you put it that way, you'd have to be a little more clear about how you feel about that.

[00:36:33] [Dan] It's not as snappy of a conclusion. But we will actually come back to this question about how Justice Thomas likes to frame criminal cases and capital cases in particular, uh, in just a few minutes. But so this is a case that divides the Court along partisan lines. We have a dissent by Justice Breyer, joined by, uh, Justices, uh, Sotomayor and Kagan.

[00:36:59] [Will] Mm-hmm.

[00:37:01] [Dan] And the dissent focuses on the second part of, of the decision, right, which is about whether Dzhokhar could have introduced, uh, the evidence of Tamerlan's involvement in the prior crimes. It does not, uh, get into the first part.

[00:37:19] [Will] Yeah.

[00:37:21] [Dan] Anything, anything to, to say about that? The opinion says, you know, uh, Breyer says, I disagree with the Court's decision, and I agree with the Court of Appeals, at least as to the second reason, right, the evidence. And so doesn't say I don't disagree—sorry, it doesn't say I disagree with the first thing, but just doesn't need to get into it.

[00:37:42] [Will] Right. So I think, you know, the thing about Justice Breyer's dissent is he has a longstanding skepticism of the death penalty in general and whether it can be fairly administered, which he notes in the dissent in one paragraph that's not joined by the other justices. And I think he would admit that's kind of also influencing his, uh, his view that we need to be extra careful, turn extra square corners, and send a message to district courts that, like, if the defense has some, you know, some theory, they should get a chance to put it on.

[00:38:10] [Dan] But that view does not prevail, so the capital sentence will be reinstated. As to when the execution will be carried out, not clear, as we'll talk about momentarily. After there is an appeal of a capital defendant's conviction and death sentence, even once that's affirmed, by an appellate court, that's not the end of the story. There's a lot of litigation that can come later leading up to an execution.

[00:38:40] [Will] Sure. Well, there's collateral litigation where he could complain about ineffective assistance of counsel, newly discovered evidence. Then there's sort of method of execution litigation where he could complain that the execution itself will be cruel and unusual. There's also, of course, the possibility of clemency, other issues. So I don't know. Very unclear when, if ever, Dzhokhar Tsarnaev would actually be executed by the federal government. But maybe.

[00:39:06] [Dan] Okay. So is that a segue into the next opinion we want to talk about?

[00:39:12] [Will] Sure. The other death case.

[00:39:15] [Dan] Yes, which is Ramirez v. Collier. And, you know, we should spend a little bit of time on this, but we actually have a couple other things we want to get to as well before our time to record expires. And so, uh, this is one that we, we maybe don't need to talk about quite as much because we talked about it around the time when it was granted.

[00:39:34] [Will] I think during one of the live shows, maybe.

[00:39:36] [Dan] Yes, during our Chicago, uh, live show. Uh, and I said it, you know, was the, the conflict between religious liberty and, uh, unspeakable cruelty to capital defendants. But basically, uh, you know, the dispute is about whether This capital prisoner can have his pastor sort of in the death room and sort of making audible prayer and also touching him during the execution, which he says is something that, you know, his religious faith requires at the moment that he's, you know, dying.

[00:40:10] [Will] Mm-hmm.

[00:40:12] [Dan] And whether this is—the Texas prison system did not want to permit this. There had been various back and forth earlier in some other cases that I think we already talked about. Where the Court had kind of first declined to step in and then stepped in and sort of said, you need to have rules that are fair and don't discriminate against different religions. Texas ultimately adopts a rule that says, okay, you're just—we're not gonna allow this for members of any faith. But this creates a potential legal problem because of RLUIPA, right, which is the Religious Land Use and Institutionalized Persons Act of 2000, which is a statute that was passed in order to provide broader protection for religious liberty than Supreme Court doctrine at present had permitted. And it was enacted in the wake of the Court's limitation of the Religious Freedom Restoration Act, which was a broader statute that had been designed to kind of overturn the Court's precedent interpreting the Free Exercise Clause quite narrowly. And this one, in terms of institutionalized persons, governs prisoners and gives them, you know, a certain amount of religious liberty and puts limits on the degree to which prisons can restrict their religious liberty.

[00:41:33] [Will] Mm-hmm. Well, today, religious freedom defeated unspeakable cruelty.

[00:41:39] [Dan] Yes.

[00:41:40] [Will] Well, not today.

[00:41:41] [Dan] For a time. And this case comes up in—this is kind of Fed Courts-y, maybe you can explain this to people—but it comes up in a sort of preliminary posture. It comes up in a preliminary injunction posture, or at least the Court is going to construe this as a preliminary injunction posture rather than kind of a full trial that's been conducted on the merits of this policy, because these capital cases are often decided in a very fast-paced way. And so the Court is going to approach this question through the lens of should a preliminary injunction against Ramirez's execution under the current state of Texas rules be granted.

[00:42:19] [Will] Yes. And so a couple things in the procedure. So one is, and we talked about this a little bit before, but this case sort of originally starts as a, as a so-called shadow docket case, a kind of last-minute, you know, stay injunction of execution case where the Court then grants a stay long enough for oral argument to kind of give a chance to consider these issues and, you know, really go through them in a way they hadn't been able to do in the faster cases. This is one of the examples of the Court's experiment with trying to give a little bit more procedural regularity to the shadow docket, like the OSHA vaccine case we talked about before. That did also trigger some jurisdictional landmines. There's a really smart article on SSRN called Shadow Docket Experiments, by two very recent law graduates, Edward Pickup and Hannah Templin, that warned that depending on how the Court resolved the case, they might actually kind of exceed their own jurisdiction. Because the Supreme Court only has appellate jurisdiction, they have to be careful that they're not deciding a merits case that no lower court has decided. I think—I'm not sure the authors would agree, but I think the Court heeded that warning. It may even have read the article. So it means it has to be careful in this case to only resolve the question of a preliminary injunction. So they conclude that Ramirez is entitled to a preliminary injunction. As it stands, Texas can't execute him without letting his pastor touch and pray. But they note at the end of the opinion that that's all they can hold, and that because the case turns in part on Texas's specific execution protocol, the size of the execution chamber, what's happened in the past, a bunch of really nitty-gritty factual details, that it's conceivable that Texas could win later on the merits. But then they have a kind of funny warning that, like, but if Texas wants to do that, that'll probably contribute to further delay in carrying out the sentence, and the state will have to determine where its interest lies in going forward. I think that's a hint-hint, like, if you just want to get this execution done, like, let the man pray and move on with it. Do you really want to fight about this?

[00:44:14] [Dan] Yeah. I mean, it's a little bit unclear exactly why Texas is so worked up about stopping this. And they claim certain rationales, protecting the safety of a minister preventing them from interfering with the execution by pulling out the IV lines or something. But, you know, those aren't—those don't seem super compelling. And the Court here, you know, in this, through the lens of determining whether Ramirez is likely to succeed on the merits, which is the question that you—one of the questions that you ask in the preliminary injunction posture, does not find those sufficiently compelling to overcome Uh, his asserted religious liberty interests.

[00:44:52] [Will] Yeah.

[Dan] But yeah, a lot of moving pieces here with the prison, you know, the limitations imposed by the Prison Litigation Reform Act requires, you know, prisoners to kind of exhaust their administrative remedies before they get to federal court. And so we have to have some back and forth in the opinion. It's an opinion by Chief Justice Roberts, uh, by the way, about whether that was satisfied here before we can get to the actual merits of the dispute.

[00:45:15] [Will] But the Court does. They conclude that the claims are not—were properly exhausted, that the other kind of procedural equity requirements are close enough to satisfy. It's actually kind of an important opinion to have out there as a model of, if you do it this way, this is good enough to sort of satisfy the Court's various requirements. I thought the only other thing I thought we might want to flag before we cover some other cases, I mean, is an interesting concurrence by Justice Kavanaugh, who kind of—I mean, he writes separately. He likes to write separately, period. He writes separately partly to sort of give his take on sort of how the Court's gotten here through all these execution cases, and partly to flag how much he doesn't like strict scrutiny. That kind of the search for what counts as a really compelling interest, and how do we know whether or not this is really the least restrictive means of satisfying it, is really hard. And this echoes some questions he kept asking in oral argument, like, does the state have a compelling interest in minimizing the risk of disruption? And if so, isn't it minimizing it? Aren't we kind of saying, no, the state has to let in some risk, and how do we decide? And so on. And he ultimately concludes that he can go along based on what we know and how weak Texas's arguments are. This is going to be an important window into how Justice Kavanaugh sees First Amendment cases, Second Amendment cases, a lot of constitutional litigation where the strict scrutiny test comes up. So I predict we're gonna be coming back to this later.

[00:46:42] [Dan] Yeah. And there's a little bit of kind of—I don't know if defensiveness is the right word, but the Court was criticized quite heavily for the first time a case like this came up, Dunn v. Ray in 2019. It was a Muslim inmate who wanted his religious advisor in the death chamber. And that was not permitted, and the Court did not stay the execution. But then, you know, shortly thereafter, they did stay it for a Buddhist prisoner. And there was a lot of criticism about whether, you know, that was consistent. There was a lot of criticism of Dunn v. Ray. I think in the second case, Justice Kavanaugh wrote an opinion kind of trying to explain, you know, why did we not do it there? And he kind of circles back to that here. He says, For timeliness reasons, the Court denied relief in the first such claim. And he's talking about what he describes as kind of religious equality claims to reach this Court. But the Court then granted relief in the second such claim. And then he's sort of explaining how first it was just about don't discriminate against religion. Then it was like, no, religious liberty really demands that I have, regardless of whether you discriminate, that I have the advisor there. And then the newest claim is "I want the advisor to be able to engage in audible prayer and to physically touch me," and sort of putting that all in context. And more generally, he does seem to really like these concurrences where he says, let me just rethink this. And they're not necessarily radical rethinkings of the doctrine the way that a Justice Gorsuch or Thomas would offer. They're often kind of like—I see them as kind of slightly more at the margins, kind of like making sense of the doctrine, saying "I'd steer it in this way a little bit more" than sort of like, "I think this entire line of precedent is totally wrong and we should reinvent the wheel."

[00:48:33] [Will] Yeah, I think they're—in some ways, I think of them as like they're anti-Justice Kennedy concurrences. I mean, they're like Justice Kennedy concurrences in that it's somebody sort of towards the middle of the Court kind of writing a moderate take on an area of doctrine. But Justice Kennedy, or especially Justice O'Connor, would sometimes write these concurrences saying, "we have some rule in our cases, and I just want to make clear that it depends on the circumstances, and sometimes I'm going to do it and sometimes I'm not, and just want to warn you." And I feel like Justice Kavanaugh is often kind of trying to do the opposite, where it's like, "the rule's currently very murky, and it sort of seems like sometimes we do it and sometimes we don't, and I'm trying to give you a kind of consistent take on how I deal with those." So I think he's often attempting to kind of streamline or give a little bit more firmness to the current rule, which is, I think, a nice thing to try to do.

[00:49:21] [Dan] Yeah. And then I said we were going to circle back to Justice Thomas. He was in the majority. He wrote the majority opinion in Tsarnaev. Here he is dissenting, and he's dissenting alone. And, you know, he starts off with that feature of his opinions in, you know, criminal and capital cases especially, where he really digs into the facts. To show how heinous the crimes are. And I've always found this a little troubling, because on the one hand, I don't think—I think there's something there in the sense that we shouldn't—the Court shouldn't just treat these as kind of abstract questions of philosophy, or to the extent that they're looking at individual interests, it's not necessarily just about the defendant. I mean, there are reasons that we have criminal law, and there are people who are really profoundly affected by these. That said, I have two kind of reservations about stressing these things in criminal cases. The first is, elsewhere, Justice Thomas repeatedly wants to tell us that we should just be doing law, right? Just focus on the legal rules. And how heinous a crime is, is usually not really relevant to whether you have a valid religious liberty claim claim or not. It's really there to kind of get your emotions fired up about the case. And in that case, it just seems to me fundamentally inconsistent with his deeply formalist jurisprudence. The other is, there have been multiple times actually where the Court has—different justices on the Court have written opinions that talk graphically about the heinousness of certain crimes in order to suggest that you know, particular defendants are not worthy of the Court's solicitude. And in some of those cases, those defendants have subsequently been exonerated, not just had their convictions overturned, they have been found to be actually innocent. And, you know, I don't have a sense of whether the justices who have done that, and that includes both Justice Scalia and Chief Justice Roberts, have been cowed at all. That that's a question that called into question their priors at all. But I do think that those cases—and again, there's no reason to think that happened here. I mean, the defendant admitted the murder. But more generally, it does suggest that before judges just sort of start talking about how horrible the defendant is, they should maybe have a little bit of humility.

[00:51:51] [Will] Yeah. So I strongly agree with the second point, and my view is that judicial opinions should not contain any facts that are not necessary, largely because, like, who knows? Who knows what's really true? And it's just better to stay away from those, in part for sort of intellectual humility reasons. I tend to agree about that, and to the extent I have any influence on judicial opinions, that's where I think they should go. I think on the first point, I think what Justice Thomas would say is, look, I agree with you. Let's just talk about the law. Let's not indulge our sympathies at all. But the Court stopped agreeing with you, 50 years ago, at least in criminal cases. And I think he would say that everybody else is indulging all these sympathies and policy concerns. That's what he thinks is going on here. And so if we're going to do that, he wants to give a full picture of the equities. I'm not sure that charge is fair. I think it might have been fair at the time.

[00:52:38] [Dan] It seems like it falls flat in this case. I can certainly point to other cases where that seems maybe a fairer criticism. It just seems to fall a little bit flat here.

[00:52:47] [Will] You don't think the Court's different treatment of Tsarnaev and Ramirez in part reflects their greater moral sympathy for last rites than for the defense in Tsarnaev?

[00:53:01] [Dan] I don't quite understand the question in the sense that they clearly think that the interests at stake here and the legal right at stake here is more significant, right?

[00:53:11] [Will] But I guess, do you think it's law all the way down in these two cases, or do you think there's some—like moral policy stuff doing some work here?

[00:53:18] [Dan] I don't know. At least I'm not—I'm certainly not confident that there is, right? Like, I think that—and to the extent that there is, I mean, like, those moral considerations also seem like reflected in the underlying positive law, right? Because in the—in this case, I mean, we have a statute that, that, you know, imposes a pretty strict set of obligations on you know, prison officials to protect people's religious liberty. And so I don't know whether it's fair to just say, well, the Court is just really sympathetic.

[00:53:50] [Will] But Justice Thomas is saying that the Court is playing a little fast and loose with the PLRA because they like—they're sympathetic to a guy's religious liberty needs.

[00:53:58] [Dan] Yeah, in terms of whether he properly exhausted his administrative remedies, which the answer to which is complicated.

[00:54:05] [Will] Yeah, and I don't know if the charge is true. And, you know, look, maybe you're more of a formalist than Justice Thomas in the end. But I think that's why Justice Thomas is doing it. I don't particularly like it either. It's not my favorite.

[00:54:17] [Dan] But if that's why he's doing it, then call them out for doing it rather than try to play the same game by saying—

[00:54:23] [Will] It's a 23-page dissent, and most of the pages are about the Court's PLRA mistakes.

[00:54:29] [Dan] Right, but he goes out of his way. He says, the saga of Ramirez's crimes and the ensuing litigation warrants is fuller retelling than the majority provides. And he has almost 2 pages of facts. And look, they're troubling facts. Ramirez basically commits this brutal murder for like, not even for any real reason. He steals $1.25 from the victim and was on a larger crime spree. But again, it's not really what this case is about, right? I mean, no one is saying, In this case, that you can't execute him for this heinous crime. They're just saying, like, does he get to have last rites, basically.

[00:55:07] [Will] I agree. I just think, just as Thomas would say, I'll stop talking about this stuff when they stop being influenced by this stuff, I think is what he would say. I don't think that's a good reason to do it, but I think that's what he'd say.

[00:55:16] [Dan] Yeah.

[00:55:16] [Will] Can we talk about the Navy SEALs?

[00:55:20] [Dan] Yeah, so this one is interesting. Maybe the most interesting thing for us to talk about today. It is a true shadow docket case. This is an application for a partial stay, which I don't totally understand what that means, but you're gonna explain it to me. And whereas the district court—I think this is Justice Reed O'Connor, am I remembering that correctly, Will?

[00:55:46] [Will] I don't remember, but okay, the odds would be in your favor.

[00:55:49] [Dan] Navy had said, you know, to the Navy SEALs, you know, as they said in the military more generally, you need to get vaccinated against COVID, you know, so reasonably—and some Navy SEALs do not want to be vaccinated.

[00:56:08] [Will] And, and specifically claim a religious exemption, which the administration makes available.

[00:56:14] [Dan] Yeah, although, you know, it seems like it's a—make it very kind of hard to obtain.

[00:56:19] [Will] Well, yeah, well, so apparently you have to submit like, you know, 400 different pieces of paper. You have 50 steps, says Justice Alito, and the first 35 steps involve just passing the piece of paper around without even getting to the merits. My understanding of military bureaucracy is that may actually be a relatively small number of steps compared to what it takes to do a lot of things. But fine. So the Navy requires vaccination of all the SEALs, and there is an exemption process that apparently is very arduous and in the end maybe not practically available. But these SEALs, who believe they have a valid constitutional objection, sued saying, you know, we ought to be able to access our law.

[00:56:57] [Dan] And a statutory one too, right? This is a RFRA claim, which I guess—I hadn't really thought about this, but I guess governs the military as well as every other part of the federal government.

[00:57:08] [Will] I think that's right. They have a religious freedom claim. In the meantime though, while they're unvaccinated, you know, while maybe there's a preliminary injunction saying they can't be fired or locked in the brig, one of the big fights and the question that's the subject of this specific shadow docket litigation is what happens to them? Who gets to decide whether they deploy? So the Secretary of Defense, the government says, "while we're fighting about this, we are not going to deploy you, at least for certain decisions, if you're not vaccinated, because we want a vaccinated team for obvious public health and sort of mission smoothness reasons." And the district court had said, "no, no, you can't do that. That's, you know, punishing them for the violation of their constitutional rights, and you can't, uh, discipline them or take into account the fact that they are exercising their First Amendment rights." Is that right?

[00:58:00] [Dan] Yeah, but, you know, I think maybe, uh, phrased that way sort of understates exactly, exactly what happened, which is basically like the district court is now ordering military officials, you know, about how they should deploy troops.

[00:58:16] [Will] Right. Or at least, I mean, I don't think it quite got to the point where the district court said, you know, you must deploy Navy SEAL number 1 on a mission, because we don't know what the mission is, or there'll be other reasons to decide, but you cannot take into account the fact that Navy SEALs 1 through 26 are unvaccinated in deciding whether to deploy them.

[00:58:34] [Dan] Yeah. And a lot of people thought this was pretty crazy in the sense that normally this is maybe the area where courts are least comfortable intervening and sort of ordering other government officials what to do. And I guess the Court here agrees with that. We don't have much in the way of explanation, but we have this partial stay granted pending disposition of the appeal in the Fifth Circuit and disposition of a petition for writ of certiorari. We do have a concurrence from Justice Kavanaugh, joined by no one else, but he says, look, in this case, the district court, while no doubt well-intentioned—I don't know, I have some doubt about that—in effect inserted itself into the Navy's chain of command, overriding military commanders' professional military judgments. And I think rightly saying that this is a pretty breathtaking assertion of power. He doesn't use that word, but maybe that's how I would describe it, by a federal district court. And we shouldn't—should really hesitate before doing that. That's really within the core of the president's commander-in-chief power.

[00:59:54] [Will] Yeah. No, I think it's very persuasive. It's a good example of the strength of these Kavanaugh concurrences. I think a part of the point is it's not that we don't have second-guessing of lots of military judgments, even on substantive legal grounds. But normally it doesn't happen. We don't grant ex ante relief where courts are sort of telling the federal government who to deploy and where and for what. Maybe after the fact we'll say that they made a bad decision and grant whatever relief is available and appropriate under the statute. But even during the Civil War, when people were second-guessing various actions of Lincoln's, it wasn't—I mean, other than the famous attempts to grant habeas to people like Merryman. It wasn't like the courts would try to enjoin the war against the South, right? They would fight about whether or not something seized during a blockade was a blockade.

[01:00:42] [Dan] Justice Douglas enjoined the bombing of Cambodia, didn't he?

[01:00:45] [Will] Very briefly.

[01:00:46] [Dan] Yeah, and I think it was overturned by Justice Marshall.

[01:00:50] [Will] Yeah, I think it was overturned by Justice Marshall in consultation with every other member of the Court to make clear that—yeah, well, and that's, I think, That's just it. That's maybe an example of an anti-canonical shadow docket ruling by Justice Douglas.

[01:01:03] [Dan] So the thing that's surprising here is there are two justices who write a dissent, and I think Justice Thomas does not write an opinion, but we're told at the beginning he would deny the application for a partial stay. So I guess there are three justices on this Court who would have said what the district court here did was okay, or at least we're not in this posture, we're not going to stop this order, at least to the extent the government wants. And so this Alito dissent, joined by Justice Gorsuch.

[01:01:35] [Will] So I'm not sure—so two things about the Alito dissent. So one, he makes the point that he really strongly believes in religious freedom, and see what we just did in Ramirez. And it's not clear to me how much daylight there really is. So he has a little thing on page 8 where he says his complaint is that he would not rubber stamp the government's proposed language. He doesn't want to let the government win. But he is also wary, as he says the district court was, about judicial interference with sensitive military decision-making. So he would limit the order to the selection of the special warfare service member—anyway, he would say he would limit the order to where there is a mission where there's a special need to minimize the risk that the illness of a member due to COVID might jeopardize the success of the mission or the safety of the team members. And he claims this is what the district court really did. And so he's not as convinced that the Court needs to get into it. So, and he notes that the district court, the injunction does not require the Navy to deploy anybody. So I can't tell how much there's really a substantive disagreement here and how much it's more of a thematic disagreement.

[01:02:36] [Dan] But I do think at a higher level, I find it hard to believe that the justices in dissent here would even be willing to entertain the notion that district courts can enjoin these kinds of, even in part, these kinds of operational decisions by the military if it weren't a COVID case and it weren't a Democratic president. I don't say that in every case, but I find this one really hard to swallow, to be explicable by anything other than those kind of considerations that came into play.

[01:03:11] [Will] I mean, maybe this is just always an unhelpful analogy, but like, think about the racial integration of the armed forces. Imagine that it happened by statute. Imagine Congress had just passed a statute saying, no more segregated units. We're going to integrate the armed forces. And imagine the president had said, yeah, that's great, but I'm going to comply with that later because right now I'm worried to limit further deployments. I'm not sure. I mean, maybe it depends on the judge and it depends on the year, but I'm not sure that these justices would say, yeah, of course, we would just let the president segregate the armed forces if he thought it was necessary. I think they would say—

[01:03:45] [Dan] What if the president sort of said, like, I'm gonna exclude people from entering the country, not under the commander-in-chief power, but under another core Article II power, because I don't want Muslims, and that violates, like, the Equal Protection Clause? Like, would these justices of the Court also be willing to enjoin that?

[01:04:06] [Will] I think the answer is yes, actually.

[01:04:08] [Dan] So we're talking about Trump v. Hawaii, which is the case about the alleged Muslim ban, where the Court basically lays out—the majority of the Court lays out a very strong principle of non-interference in those kinds of executive decisions. And now maybe you're gonna try to distinguish it by saying, well, the government had come up with this. Yes, it wasn't really the Muslim ban. President Trump had said that a bunch of times, right. But they had come up with this kind of different rationale and sort of wanted to just look at it on its face.

[01:04:42] [Will] I'm going to remind you there were sort of 3 rounds of that travel ban, and the first one was the most illegal or closest to being illegal, depending on where you think the line fell. It was quickly enjoined by the lower courts, and the Supreme Court did not sort of completely vindicate the president there. I think if the first one had gone to the Supreme Court before the lawyers were brought in to kind of launder the whole thing, I don't think court would have upheld it. I'm pretty sure of that. I do think, you know, once it was successfully modified and made more reasonable and given more evidence, then the Court was willing to tolerate it. Maybe something similar here.

[01:05:15] [Dan] Maybe so, although at least in that opinion is, the kind of tests it lays out are quite deferential, right? I mean, they really limit the Court's ability to kind of dig deeper and look into you know, the real reason and so forth. So I don't know.

[01:05:34] [Will] Well, I also don't think the president has an Article II power over immigration, although Justice Thomas disagrees with me.

[01:05:39] [Dan] But that cuts in my favor, right? Doesn't that make my argument even stronger? Because the president definitely does have commander-in-chief authority over the military, right?

[01:05:50] [Will] Right. But that means in that case, we were also talking about sort of the role of the federal statute and deference to Congress's determinations about giving the president the power. Look, let's just say there's a hierarchy, right? Unspeakable cruelty, religious liberty, and military force. And for some of the justices, religious liberty is more important, is the top of the hierarchy. For some of the justices, military force is the top of the hierarchy. But the good news is none of them think unspeakable cruelty is the top of the hierarchy.

[01:06:19] [Dan] At least today. Well, we wanted to talk about, but we didn't make it all the way, so we'll catch up on some other stuff next time. Uh, I will not give a prediction on when that next episode is, but if it is, if it is delayed, it's, it's because Will went on another, uh, vacation I didn't know about. So, Will, uh, lead us out.

[01:06:44] [Will] Thanks for listening. Thanks to the, uh, Constitutional Law Institute for sponsoring our endeavors. Thanks especially to all the listeners who've been writing in with feedback, corrections, suggestions, or just let us know that you're under the age of 65. Please remember to rate and review the show on iTunes or wherever you listen to it. We're still hoping to help people find the show.

[01:07:06] [Dan] And write us, pod@dividedargument.com. Leave a voicemail, 314-649-3790, and we just might play it on the show.