Impregnable Citadel of Technicality

[00:00:00] [Will Baude] Oh, yay. Oh, yay. Oh, yay. The judicial power of The United States shall be vested in one supreme court. Unless there is any more question, you'll be able to find an argument in this case.

[00:00:11] [Will] All persons having business before the honorable, the supreme court of the United States are admonished to give their attention.

[00:00:20] [Dan Epps] 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 in partnership with SCOTUSblog as I like to remind people. And one other thing I thought we might remind people about, which we haven't done in maybe a year or two or even longer, is a request to go review us on the Apple Podcast app, which is a place where a lot of people get podcasts. It's a primary route of podcast discovery. I know we ask people to do this at the end of every episode, but I figure a lot of people turn it off by then. And occasionally, we have asked people at the beginning, and that has actually caused people to come in and give us some reviews there, which are appreciated.

[00:01:07] [Will] Yeah. I feel like our reviews have been drying up and the reviews that have not dried up have been kind of annoyed with us. So if you are not annoyed with us, it'd be great if you could help.

[00:01:18] [Dan] You know, and some of them annoyed with us, but kind of inexplicably so. Like, I mean, it's fine to find it out like the show, but sometimes I just like don't generally understand like what the specific objection is. Like, so we got one that said NPR pretty tend to law a number of months ago. What does that mean? Like, don't feel like our we're not our takes are not very NPR.

[00:01:42] [Dan] I was on NPR one a couple weeks ago, which was a lot of fun. But I feel like some people's complaints would be that we're not, like, enough of NPR.

[00:01:53] [Will] I think that is a right wing complaint that we are, like, highfalutin elites who are talking about, like like, talking in a pretty way about what the law tends to be and not talking about the real law, I think.

[00:02:08] [Dan] What is the real law? Just like I

[00:02:10] [Will] don't

[00:02:10] [Dan] know. Anti wokeness or like baseness?

[00:02:12] [Will] Power comes to the barrel of a gun.

[00:02:14] [Dan] But the in general, I thought our conservative listeners liked us doing law more when our liberal listeners wanted us to, like, trash the court more. So I'm very perplexed by that.

[00:02:28] [Will] Yeah. There was also a recent one that said, you know, I really enjoyed this podcast and the insight and banter of the show's host. It used to be an instant listen, but the podcast has started to swap interesting discussions between two smart people about the substance of cases for the sort of hyperbole that is found on cable news programming. The nearly forty five minute detour about immigration enforcement tweets and White House photo captions in the most recent episode continues to confirm my doubt.

[00:02:51] [Dan] Did we I don't remember that. Did we do that? Do we have like a forty five minute Damn. On that?

[00:02:56] [Will] We have a lot of forty minute digressions. Okay.

[00:02:59] [Dan] Well, this is a sufficient digression on this. I think we can start getting towards substance. And we don't have a ton of Supreme Court news to discuss. There actually has not been much in the way of like extra curricular, you know, justice statements, those kind of things. We have some substance to Yeah.

[00:03:23] [Dan] Discuss, but that's about it. We did have one at least interesting piece of feedback we got from a friend of the show, Andrew Coan, who is a law professor at University of Arizona and runs their Rehnquist Center for Con Law that has an annual conference that I've spoken at several times. And he said, I enjoyed your discussion of Pitchford versus Cain, and then that's the Batson episode we talked about last time. But I've been puzzling over an aspect of the case you didn't touch on. Since the Mississippi Supreme Court held that Pitchford waived or forfeited his Batson objection, isn't this a procedural default case?

[00:04:00] [Dan] And if so, shouldn't the question have been adequacy and independence under various cases rather than reasonableness under AEDPA, whose deferential standard review applies only to claims adjudicated on the merits by state court. And I thought this is a really good question. It was some one that was sort of in the back of my mind, but I hadn't run down. And in response, I did look back at the transcript. I did look back on the briefings, there's really not much of an explanation of that.

[00:04:28] [Dan] The best one I could come up with was and so just by way of background on the question, I mean, if you have a federal habeas case where the state court said, we're not going to consider your federal argument because you didn't comply with state procedural rulings, that is not an adjudication on the merits of under federal law, right? And that's a reason that a habeas petitioner would lose in federal habeas court. Whereas the provisions of the Antiterrorism and Effective Death Penalty Act that are we're talking about typically come into play when there's a state court adjudication on the merits of a federal issue, then you go to federal court and the federal court has to decide if it's unreasonable. So the best I could come up with was and if you remember from previous episode, if you haven't listened to that one, this won't make a ton of sense. But there, the, you know, court seemed to be saying it was wrong to not make this further inquiry after this Batson objection had been raised and after the prosecutor had said no, there's some other reasons.

[00:05:30] [Dan] It was error for the state court, the trial court not to then give the defendant an opportunity to present, you know, arguments for why those race neutral reasons given by the prosecutor were false, you know Mhmm. Reasons. And the state courts had said, you know, various things, but they had said, you know, you didn't. One of the things they'd said was, you know, you didn't raise that specific issue and so we don't have to decide it. And so the best way I could reconstruct this was to say that the Supreme Court is saying, well, it's to adjudicate Batson, you have to do the three steps.

[00:06:09] [Dan] And if you never get to the third step, you just haven't complied with Batson. And so then you don't need to reach the state law procedural default question. Is that right?

[00:06:19] [Will] But if the Florida Supreme Court was saying that he hadn't made that argument there, then isn't the claim that he there was both a waiver sorry. Not Florida Supreme Court. The Mississippi Supreme Court. Weren't there two different waiver issues floating around? Both the question of whether the trial counsel waived Batson by not making the argument that he wasn't allowed to make, but then wasn't there also a state appellate question of whether the appellate counsel adequately raised the trial counsel issue?

[00:06:46] [Dan] Yeah. Okay.

[00:06:47] [Will] But then also, isn't procedural default itself set to waiver? So if in federal court, the state of Mississippi decided to litigate this as an AEDPA case rather than a procedural default case?

[00:07:00] [Dan] Yeah. Didn't I certainly didn't go look at the lower court briefing to figure this out.

[00:07:05] [Will] Okay.

[00:07:06] [Dan] Okay. So I don't know. Maybe that's the explanation. But if someone more intimately familiar with the lower court proceedings has an answer, that would be fascinating. Okay.

[00:07:18] [Dan] Let's keep going. We normally go from like least merit y to most merit y in our discussion of issues. So where does that leave us? Because we have a summary reversal, we have a shadow docket stay ruling, although one of significant consequence, and we have one merits case that we're gonna talk about of several that were decided on Thursday, June 4. We're recording this on June 5.

[00:07:45] [Will] Okay. So normally, I guess, a shadow docket stay ruling would be less merits y than a summary reversal. Although here, the shadow docket stay ruling also produced a per curiam opinion that is on the per curiam that's on the Supreme Court opinions section of the website. So I think technically they're both.

[00:08:01] [Dan] Okay. So they're all on equal footing.

[00:08:04] [Will] So I think we should go in college quarter.

[00:08:07] [Dan] Okay. Alright. Alright. That's a simple way to do it. Okay.

[00:08:11] [Dan] Let's do it.

[00:08:12] [Will] Okay. Which might also be from most to least well, I don't know. Most to least something. The first one we may have the least to say about it, but there's something about it I wanted to talk about. So it says summary reversal from the Supreme Court on June 1 in a case called Whitton versus Dixon, which is another capital case arising out of the South.

[00:08:35] [Dan] And it is technically a summary vacatur?

[00:08:39] [Will] Rather than a summary reversal?

[00:08:41] [Dan] Well, they don't reverse. They vacate.

[00:08:43] [Will] Yeah. But I think

[00:08:44] [Dan] mean, yeah. I agree that we normally would put these under the sum rev Yeah. Heading.

[00:08:49] [Will] Yeah. I don't we don't have a sum vac. Or a

[00:08:52] [Dan] sum We do now. Sumter.

[00:08:57] [Will] Yes. So a sum rev that you might technically call a summary fake it. It is a capital case in which mister Whitton was convicted of murder and sentenced to death. And there are various claims of various mistakes such as a giglio, jiglio, giglio? You teach the cases.

[00:09:19] [Dan] I've heard it pronounced both ways, and I've never run that one down. Okay.

[00:09:24] [Will] A failure to process claim involving the failure to disclose some information, the one to eleventh circuit. In particular, you know, whether or not the testimony about criminal history was false and the state knew it to be false and so on. And the eleventh circuit court of appeals, which according to the Supreme Court's recounting of the case, said there was a due process violation whose merits we don't have to talk about, but that there was no prejudice because the testimony was immaterial to the jury's whole verdict. And says the Supreme Court, in the course of explaining why that was true, or at least why the Florida Supreme Court's determination that there was no prejudice was reasonable under AEDPA, the Court of Appeals did something peculiar. It considered not only the evidence that was presented to the jury at Whitton's trial, but also evidence the jury never saw.

[00:10:19] [Will] In particular, there were some bloodstains on the defendant's boots, which were later tested and, I guess, you know, further implicated him. And so the court of appeals recites that as an example of a fact that makes the, you know, that makes the issue immaterial. And the Supreme Court says, you know, you can't do that. And thinking of whether the you know, there was harmless error for the jury, you gotta think of what the jury knew. You can't introduce, like, extraneous evidence the jury didn't have that makes you, the court, think that the person's guilty.

[00:10:50] [Will] That's just right.

[00:10:51] [Dan] Makes sense. Yeah. Yeah. It I mean, I will say it is an unusual summary ruling in favor of a capital defendant. When these used to be a bit more common Mhmm.

[00:11:02] [Dan] Tend to not see these quite so much as the court has swung right.

[00:11:06] [Will] Right. It is though I mean, I feel like if there's going to be a summary ruling in favor of defendant, that kind of, like, very clean mistake that might it's you know, you could say to the Supreme Court in a cert petition, look. Look at the court of Bill's opinion. It says x, but, actually, x is not in the record or was not in the relevant record. Yeah.

[00:11:30] [Will] It's not a problem. It's, like, easy to understand. It's also not clear it will affect anything, sort of ironically. Right? So the court says, you know, the eleventh circuit's now free to, you know, decide on the merits of the claim, you know, decide on its own.

[00:11:44] [Will] The claim fails in the merits or, you know, do whatever once it's sort of eliminated the stuff it wasn't supposed to be thinking about. So it could be that this is all harmless error about harmless error in a sense.

[00:11:57] [Dan] Yeah. Right?

[00:11:58] [Will] But the rule of law has been upheld by this some bad.

[00:12:04] [Dan] Yeah. And in front of the show, the great John Elwood tracked this one on his extremely useful Relist Watch, which is, you know, a way you can, you know, have a clue as to some cases the court is interested in. Because some of these cases, while someone is working on something, keep getting redistributed to the conference week after week. Mhmm. This one was relisted nine times.

[00:12:25] [Will] Mhmm.

[00:12:26] [Dan] And that could be because someone was working on the opinion, could be because Justice Thomas was spending more time on his dissent. Also, there could have been some attempt by a justice to get people interested in this and it took a few weeks. We don't know. But kinda interesting.

[00:12:44] [Will] Yeah. Took a little while. Counsel of record is Andrew Tutt, who I think has had a couple of interesting cases at the court. And sadly, he won't get to argue this one because he was so persuasive. So the reason I put this on the list is that there's an interesting dissent by justice Thomas joined in part by justice Alito, which says, in part, who cares?

[00:13:12] [Will] Right?

[00:13:14] [Dan] Yeah. And he does his classic thing where he, you know, recounts at length the underlying facts of the crime and the conviction. Yeah. Which he does basically in every criminal case where he is at least where he is inclined to rule in favor of the government.

[00:13:31] [Will] Right. And but then he also says, you know, e yeah. Right. The facts are bad, and even if this is a mistake to mention

[00:13:39] [Dan] not bad. Right?

[00:13:40] [Will] Sorry. Oh, well.

[00:13:41] [Dan] The Not bad in the, like, troubling sense. They're like, this is not a case where we should be stepping in.

[00:13:46] [Will] Right? The facts of the crime are bad.

[00:13:48] [Dan] Oh. Oh, yes. Sorry. Sorry.

[00:13:49] [Will] Right. This is a bad guy who did a bad thing. Yes. And he says, a quote I'd never seen don't remember before. Because we do not tower above lower courts as an impregnable citadel of technicality, we should not have exercised our summary powers to vacate here.

[00:14:05] [Will] You know, it's just a technical mistake. Not the big deal. Gets into some exhaustion issues, etcetera. But then what I thought was very interesting is then he has a coda where he starts to complain about the court's liberal summary of practice. It's part three of his dissent.

[00:14:25] [Will] This court has increasingly granted summary relief in certain cases based on lower court errors that seemingly had no effect on the outcome of the case. See, Pitts versus Mississippi granting summary vacatur for man who sexually abused his daughter after likely harmless trial errors, see Doe versus Damick Physical Therapy. It would be one thing if this practice reflected the court's consistent commitment to correcting legal error in all cases. But in reality, this court routinely declines to provide relief to law abiding Americans when it would actually matter, even after lower courts conspicuously flout this court's precedence ruling against them. And then he relitigates a series of grievances, such as the court's refusal to grant cert in the cases about high schools implementing admissions policies that are designed to reduce the number of white nation students and increase, numbers of other racial minorities.

[00:15:13] [Will] Beck versus United States, military tort case.

[00:15:17] [Dan] That's a is that a Feres

[00:15:19] [Will] I think it's a Feres doctrine case.

[00:15:20] [Dan] Yeah. Yeah. Although it

[00:15:22] [Will] was a I think it was a case in which I as at least as justice Thomas argued, it was not even blocked by the Feres doctrine. So was like an extension of the Feres doctrine case. And Speech First versus Whitten, where the, you know, court didn't hear a challenge to Indiana University's bias response team that was, you know, part of some sort of wokeness on college campuses. It is unfortunate that the court chose to intervene at the request of a convicted murderer to collect the 11 correct the eleventh Circuit's inconsequential footfall. What makes it even worse is that the court does so even while it refuses to correct far more consequential errors for law abiding citizens, such as the discriminated against families in Boston, staff sergeant Beck's widow, and the students seeking to challenge university censorship.

[00:16:03] [Dan] Yeah. It's and it's kind of interesting that these are just, like, totally unrelated cases, and they're not even cases necessarily implicating the, like, summary reversal route. They're just like, we should be doing other stuff.

[00:16:15] [Will] Well, I think they're all cases where justice Thomas wrote a dissent from denial saying what had happened while I was wrong. So there are a list of things I, justice Thomas, thought were wrong and important. Yeah. And it could be. We don't know.

[00:16:26] [Will] So it could be that the internal conversation about each of these cases was, yes, Clarence, I agree with you on the merits, but it's just error correction. Or, you know, it could be that there's a cert promo that says, you know, deny error correction or something. I don't know. I doubt that's what the surreptitious in the charter schools case would have said, but or the memo. But when I first read a report about this opinion, I saw some, you know, some description of, you know, justice Thomas, talking about the charter schools and free speech on campus and this.

[00:16:59] [Will] I was like, man, he really issued a lot of opinions today. Yeah. And I was like, that's just one opinion talking about all those things. So, you know, what's funny is this is the thesis of a 2015 article called the Supreme Court's shadow docket. That the court's sum rev practice is a sort of funny form of selective error correction, and the court you know, we should try to have a better theory of why it is the court intervenes to correct some errors and not other errors and what normal assumptions it reflects.

[00:17:29] [Will] Now at the time, you know, it was a lot of summary reversals against convicted murderers to enforce AEDPA and against people who had been attacked by the cops to enforce qualified immunity and that's other random things. But one of the main themes

[00:17:44] [Dan] We still have some of those. We still have some of those for sure.

[00:17:46] [Will] We do. But is it right. One of the main general themes was just like, you know Yeah.

[00:17:51] [Dan] Why this case?

[00:17:52] [Will] Yeah. How do decide which cases and which ones and now and do you have a theory and so on? So I appreciate justice Thomas picking up the mantle to ask that same question. It I guess it does make me think it would be great to ask that question in a more systematic fashion. Right?

[00:18:07] [Will] So look at all the error correction the court does. And, you know, on net, is it too right wing, too left wing Yeah. Just sort of random. The sort of the law abiding citizens frame is interesting. That has, like, packed into, I guess, a little bit of an equities.

[00:18:24] [Will] Like, you know, it's not that

[00:18:26] [Dan] Yeah.

[00:18:27] [Will] It's not that the law violating citizens don't have rights and that they might not be, you know, right on the merits. But maybe that, like, the Supreme Court's discretion should just not be used for them.

[00:18:40] [Dan] I also like the foot fault metaphor. Mhmm. That's a good one. I would imagine using that one again.

[00:18:48] [Will] Foot fault's like not a big deal. Right? That's the

[00:18:51] [Dan] I actually don't know. It's a tennis thing. Right?

[00:18:53] [Will] I was just about to ask you what sport it was, but I thought

[00:18:55] [Dan] you were gonna make fun think it's a tennis thing. No. No. No. No.

[00:18:58] [Dan] No. I would never do that well. I think it's tennis. Right?

[00:19:01] [Will] I would think it can't have a fault in a lot of sports.

[00:19:04] [Dan] Okay. So according to Gemini, it's an illegal foot placement or movement that violates the official rules of a sport most commonly associated with tennis and pickleball. But I mean, you do like face a consequence for it, I think. So it's not like it's an error that is like just gets ignored, I don't maybe it's not a good metaphor. Will, who do you think is responsible for impregnable citadels of technicality?

[00:19:32] [Will] How does that Justice Jackson feel to it?

[00:19:34] [Dan] It does. I was wondering that as well. But it in fact Jackson. Jackson

[00:19:41] [Will] one or Jackson two, to be clear, not Jackson three.

[00:19:43] [Dan] It was actually Wiley Rutledge

[00:19:47] [Will] Yeah.

[00:19:48] [Dan] Who is of particular interest to me because I believe he is the only Supreme Court justice that has had an intimate connection to my institution, Washington University in St. Louis, where he was on the faculty. And in fact, we have an endowed professorship, the Wiley Rutledge professorship that will in a few weeks be occupied by my wonderful colleague, Rachel Sachs. So I will say he doesn't deserve total credit for this German 1946 case called Kotteakos, which is important. It's a it's actually a very nice case for Justice Thomas to choose because it is a case about harmless error in the criminal context, so it's nicely chosen.

[00:20:37] [Dan] But in that case, Justice Rutledge was quoting some trial judge to say who. So it's not like he didn't like, you know, sit there and kind of come up with this one, but I liked it.

[00:20:51] [Will] And this is not the term that Justice Stevens clerked for him. Right? Justice Stevens clerked for Rutledge in the '47 term?

[00:20:58] [Dan] Oh, that's a good question.

[00:21:00] [Will] I think.

[00:21:01] [Dan] Let's figure that out.

[00:21:05] [Will] Because there's a case, Ahrens versus Clark.

[00:21:07] [Dan] Nineteen forties 1947 term.

[00:21:09] [Will] Okay. Yeah. There's a case Ahrens versus Clark, I think, where there's a Rutledge descent about some habeas jurisdictional principle that justice Stevens then resurrects during the Guantanamo cases, thus completing every law clerk's great dream of becoming a justice and vindicating the positions that they felt strongly about when they were clerking.

[00:21:27] [Dan] You have had such a dream?

[00:21:29] [Will] I'm never gonna be justice, Dan.

[00:21:31] [Dan] I and you can have a dream, but it's not gonna come to pass. I mean, that's sort of the whole point of having a dream.

[00:21:37] [Will] No. It's just a dream about things you can achieve so that you can achieve them better.

[00:21:41] [Dan] You can dream about both. Right? No. You don't you are dispositionally unwilling to fantasize about things that won't come to pass?

[00:21:50] [Will] I try to dream reality into being.

[00:21:51] [Dan] Okay. Well, has that worked so

[00:21:54] [Will] far? Great.

[00:21:55] [Dan] Yeah? The world matches your dream of it?

[00:21:58] [Will] I have this podcast of my dreams.

[00:22:02] [Dan] You dreamed that we would have a larger audience though. Correct?

[00:22:06] [Will] Well, I gotta keep my dreams realistic, Dan.

[00:22:09] [Dan] Okay. We're working on it. SCOTUSblog, folks.

[00:22:12] [Will] Yeah. I dream one day we'll be commanding, you know, Madison Square Garden for a live show.

[00:22:19] [Dan] Not sure we'll get there, but we might, you know, we might be able to do a small venue in the District Of Columbia. There might be enough of a critical mass. Like, to do one of these like, you know, some podcasts, like, have ones where you have to buy tickets. Yeah. Yeah.

[00:22:33] [Dan] I know. That's we're not there.

[00:22:35] [Will] I'm I don't like selling tickets down.

[00:22:38] [Dan] You're so principled. I like those principles. Okay. So first of three things down.

[00:22:45] [Will] Okay.

[00:22:46] [Dan] Second thing, also a per curiam.

[00:22:50] [Will] Yes. A per curiam called Allen versus Milligan, or if you prefer Allen versus Singleton, or you prefer Allen versus Caster. I think at this point, we call it Allen three.

[00:23:03] [Dan] Yeah. It I was trying to figure that in my head. I know it's the third one. There's not like a fourth one, is there?

[00:23:08] [Will] Well, I mean, a lot of people need Allen. Okay. Sometimes, are sometimes when you're doing the procedural history of a case, you give some numbers to lower court opinions because so Mhmm. But in terms of the Supreme Court, the Supreme Court had a case called Allen a couple years ago before Callais, where they told Alabama that they had to draw two majority minority districts of the Voting Rights Act. Then they had Callais, which said something different and said, oh, Alan, that's awkward.

[00:23:33] [Will] We're not overruling it. Then they had this vacatur, which we discussed during the American Law Institute live show with Pam Carlin, where they told the Alabama lower court to do it again, notwithstanding Alabama versus Milligan. And we talked at the time about, you know, some questions, those ironies about, like, could the lower court reinstitute the same judgment because they've been a finding of intentional discrimination, not just a section two finding? And if the lower court were to reinstitute the same judgment, would that now suddenly be violated by Purcell even though it's just reinstituting an injunction that had been there all along? And now we have some answers.

[00:24:14] [Dan] Again, can I just before we dive in, I think this has to be Allen four because there was an initial round of stay stuff before the 2023 ruling back in 2022?

[00:24:25] [Will] But that was Merrill versus Milligan. There was no Allen yet.

[00:24:29] [Dan] Yeah. I guess that's right.

[00:24:30] [Will] So this could be Milligan this could be Milligan four.

[00:24:32] [Dan] Yeah. Okay. Just in terms of the naming. Fair.

[00:24:35] [Will] But, I mean, Allen is the Alabama Secretary of State, so it's confusing.

[00:24:39] [Dan] Well, yeah. There was a previous secretary of state.

[00:24:43] [Will] Right. That's always that's not it's always annoying when the name of the case is like the institutional party because Yeah.

[00:24:49] [Dan] I mean, that was ultimately the case that became Allen versus Milligan. It's on that Yes. Allen versus Milligan docket.

[00:24:57] [Will] Yes. But whether these things are or not the same case is itself part of the

[00:25:02] [Dan] Yeah. Okay. Alright. So Callais said they're not overruling Alan. Yes.

[00:25:10] [Dan] They're not overruling the case that you called Alan one. They were very clear on that. Correct?

[00:25:17] [Will] Well, they said they were not overruling it, but to say they were very clear would be an exaggeration.

[00:25:23] [Dan] Well, they clearly said I mean, they said they weren't overruling. Okay?

[00:25:28] [Will] Yeah. That's true. Okay.

[00:25:30] [Dan] Is it now overruled?

[00:25:32] [Will] Well, old cases are never overruled. They just fade away.

[00:25:37] [Dan] That's not true.

[00:25:40] [Will] Well, I think that case has been confined to its facts.

[00:25:47] [Dan] But, like, these are its facts.

[00:25:48] [Will] No. No. Its facts included that it was 2023.

[00:25:50] [Dan] Okay. Okay. It included the date of decision. Okay.

[00:25:55] [Will] Or because one of the issues we should talk about is that the court in Callais seemed to think that various challenges were not really before the court in Allen one slash Milligan two. And so you might never have to over like, if you later decide that had that challenge been before the court, you would have accepted it, then you limit the decision to its facts in the sense of the fact being nobody had made the argument that was correct. Yeah.

[00:26:20] [Dan] Okay. Let's walk people through this more carefully.

[00:26:24] [Will] Okay. So after our last live show, the lower court in this Allen saga decided to reinstitute the same injunction again on the basis of a finding of intentional unconstitutional race discrimination, not just section two.

[00:26:38] [Dan] Callais did not purport for which I don't think Callais changed the standard.

[00:26:43] [Will] Well, interesting questions. Yeah. It was not the main topic of the Callais opinion,

[00:26:48] [Dan] for sure.

[00:26:48] [Will] The main topic of the Callais opinion was section two. And so the lower court reinstituted that injunction. I think that is our last episode, we noted that the state of Alabama had filed with the Supreme Court for a stay of that injunction, and that the Supreme Court was taking its time deciding what to do.

[00:27:06] [Dan] And had not granted an administrative stay. Correct. Which I think some people took from that, okay, maybe they're gonna just let the old map or sort of let the map that Alabama doesn't want Yes. Be used for this. Because Alabama had made representations about, like, we need a resolution, like, right now or else we can't switch our map.

[00:27:24] [Will] Yes. But now with no administrative stay, the full court is granting a stay stay. They granted a per curiam opinion, which is interesting because the per curiam opinion kinda contains a restatement of the holding of Callais, like, in several paragraphs that I find much clearer than Callais itself. That's helpful. Well, arguably inconsistent with Callais.

[00:27:49] [Will] Like, you know? Yeah. And there are many interesting things about it. So one is also the per curiam opinion describes it says in Louisiana versus Callais, to resolve the tension between vote dilution claims under section two of the Voting Rights Act and our colorblind constitution, we updated the standards for section two liability established by Gingles. So, like, that's very clear.

[00:28:10] [Will] That's helpful. Yeah. I think that is the first time I've read that's the first time that the Supreme Court majority has referred to our constitution as color blind. That's, of course, like a famous line from the first justice Harlan has sent and Plessy versus Ferguson. It's something the various justices have said.

[00:28:27] [Will] But the our color blind constitution know, appears

[00:28:31] [Dan] I certainly don't remember that precise formulation. And

[00:28:33] [Will] it appears that any quotes. Right? You think if that were a phrase established by Shaw versus Reno or SFFA or some other case. So it's official. June 2026, our constitution finally became color blind.

[00:28:50] [Dan] Are you sure about this?

[00:28:51] [Will] No. Not at all.

[00:28:53] [Dan] And so just to clarify your claim, your claim is that language has not appeared majority or that it hasn't been in, like, fully endorsed?

[00:29:01] [Will] That a my claim, which I'm not all sure about is, yeah, that the full majority has not declared that to be a property of our constitution. Like, until now, if somebody said, is our constitution color blind? I mean, you would say, see parents involved. The way to stop discriminating the basis of race is to stop discriminating the basis of race. But I'm making this claim without actually having run it to ground, so I am potentially embarrassing myself.

[00:29:36] [Dan] Yeah. I don't think this is correct. Okay. Hold on. Well, let me just so it does appear as a block quote in the majority in Students for Fair Admissions versus Harvard.

[00:29:54] [Will] Okay.

[00:29:54] [Dan] If that counts.

[00:29:55] [Will] As a black as what kind of black quote?

[00:29:58] [Dan] It says it responds to the principal dissent of that case. It says, that is a remarkable view of the judicial role, remarkably wrong, lost in the false pretense of judicial humility that the dissent espouses as a claim so radical, so destructive that it required a second founding to undo. Justice Harlan knew better, one of the dissent's decrees, and quoting Justice Jackson's dissent. Indeed, he did. And then they quote Harlan, who is, you know, Harlan, you know, from Plessy.

[00:30:30] [Dan] They block quote of that language from Justice Harlan. Does that count?

[00:30:34] [Will] I mean, look, I obviously, despite the fact that I just made this claim, this is all kind of semantic and silly. I do think that's a little diff like, there, that's they're clearly stating that as a fact of what Justice Harlan said. Yeah. Like, Justice Harlan knew the following, and it was good. They obviously, like it.

[00:30:54] [Will] But it's a little different than the supreme you know, a majority of the Supreme Court now says our constitution is color blind. Like, it's a little different than if than even this even if you put quotes around color blind here and add the site to Harlan, like, you know, the there's the way in which sometimes you make your own statement, which just contains a quote, and other times you relate somebody else's quote. So, anyway, the court goes on to give its sort of two paragraph summary of, you know, what Callais did and why and describes, you know, Callais' alterations to the Gingles framework. It says, you know, these updates we held were necessary to avoid requiring congressional maps under section two that would be unconstitutional racial gerrymanders, which is a more clear way of putting the holding the stature holding of Callais than I recall from Callais itself. So that's all interesting.

[00:31:52] [Will] Then they dive into their reversal of the lower court's injunction against Alabama. And they say, at this preliminary stage, the state has shown that it is entitled to interim relief from the district court's injunction. The state is likely to succeed on the merits because in making its finding of intentional vote diss vote dilution, the district court did not heed the presumption of legislative good faith because it interpreted the state's legal disagreement with the court's earlier remedial order as proof of discriminatory animus. And the descripted NASCAR on punitive map and so on. And then they get into what we can call the Purcell principle.

[00:32:30] [Will] I don't know if it's worth talking about the merits, but they say, we have repeatedly cautioned the lower federal courts should not alter the election rules on the eve of an election.

[00:32:40] [Dan] And to be clear, this is the lower court was just going back to do the thing it had done for significant time. Right? Yes. And that the Supreme Court is now stepping in. And as a result of what the Supreme Court is doing, there will be radical changes

[00:32:54] [Will] Yes.

[00:32:54] [Dan] At the very last minute in Alabama.

[00:32:57] [Will] Yes. They say this. So this is the lower court said, this is the unusual case where issuing an injunction is more sort of Purcell compliant or less chaotic than not issuing one because issuing one is just continuing the status quo under which, you know, aspects of primary

[00:33:14] [Dan] issuing sorry. You mean issuing a stay of an injunction?

[00:33:16] [Will] No. Sorry. The lower court that issued this injunction that the Supreme Court is now staying.

[00:33:21] [Dan] Oh, it said that. Yeah.

[00:33:22] [Will] Yeah. The lower court defended itself. The lower court knew it was going to be Yeah. Attacked for violating Purcell. And they said, we know we're not supposed to do this usually, but this is unusual because here, issuing the injunction is the anti chaos principle because they've been conducting the election under basically the our injunction.

[00:33:41] [Will] And if we don't issue an injunction, they will now be chaos. There will now be people who have voted in the primary. I have to revoke because they're gonna get reallocated and all that stuff. So it's the unusual case where issuing an injunction is Purcell compliant, said the lower court. The Supreme Court says, nope.

[00:33:55] [Will] The lower court's view that conducting the elections under court imposed maps would be more convenient for the state was not a valid justification for that intervention. While federal courts should not impose changes close to an election, states are free to decide for themselves whether last minute changes to an election are in their best interests. So, of course, now I think this was implicit already, but is now making sort of more explicit that Purcell is not a generic anti chaos or anti change principle. It is an anti federal judicial review

[00:34:26] [Dan] Mhmm.

[00:34:26] [Will] Principle. So federal courts should not change things, but they should let other people change things.

[00:34:35] [Dan] And you could imagine a different one, which is just this is a rule of prudence that suggests courts shouldn't do stuff that produce chaos one way or the other. Yes. Wherever the chaos originates.

[00:34:49] [Will] Yes. In fact, if you go back and read Purcell versus Gonzalez, the case that sort of birthed this whole line of remedial thinking, it looks much more like that kind of a generic principle. In Purcell, the court says, court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls. As an election draws closer, that risk will increase. And therefore, you know, we should worry about this.

[00:35:29] [Will] But that's just described as like a generic concern that voter confusion is bad because voter confusion causes people not to vote, and voter confusion is caused by court orders, especially conflicting orders. So that logic might lead you to think it's a general principle of just trying to Yeah. Yeah. Now interestingly, in this case, the Supreme Court never cites this case Purcell or applies anything it calls the Purcell principle. And I think this is actually maybe important.

[00:35:58] [Will] So they cite a different case, RNC versus DNC, one of the twenty twenty COVID cases that applied the Purcell principle, but that had a similar posture where the lower court had intervened at the last minute to require various things because of COVID. And the Supreme Court intervenes at the last minute to reverse the district court and says, yeah. It's kind of unfortunate that we have to do this, but we have to do this. And they seem to have just folded the Purcell principle into the test for a stay. So they the test for a stay has, you know, four facts, merits, and then irreparable harm, equity is in the public interest.

[00:36:33] [Will] And so the way the court structured this is just there's the merits, and then there's the other three things, irreparable harm, equity is in the public interest. And in election cases, what we used to call the Purcell principle just seems to be a election law related application of factors two through four of the state test, which whatever you think of it, I think that's nice and helpful. Like, rather than, like, a freestanding principle that comes from a Supreme Court case with no obvious warrant in the law, like, now we know kind of legally where this goes and how to think about it. Presumably, that also helps us get a sense of how it like, in a case where the merits were really strong, these factors might be less important in the way they are often are in a stay case. Like, you need to hit all four factors, but, you know, the court sometimes says when the merits are really clear, those other factors do less work.

[00:37:21] [Will] So we've got

[00:37:23] [Dan] Rather than a principle that would actually say court shouldn't intervene, period, even if it's obviously legally required.

[00:37:29] [Will] Right. Like, younger abstention. It's like a freestanding abstention doctrine that tells federal courts, at least right now, as a free that tells federal courts not to enjoin state criminal trials, except if there's bad faith or something else. But that doesn't have an exception. It's not just like balanced against the merits.

[00:37:44] [Will] Right? And you might have thought Purcell was like a Purcell abstention that's doing something similar, and it seems like it's more clear that's not true anymore.

[00:37:52] [Dan] Yeah. Which does seem more legally defensible.

[00:37:55] [Will] Right. And it does I was just talking about this with some colleagues at lunch. You know, what happens if the morning before the twenty twenty six midterms, you know, the president orders the National Guard to go, like, suppress turnout in various places since swing states' hearings are bad for him? Right? Is it the case that a federal court just can't do anything about that?

[00:38:16] [Will] If the I mean, actually, I'm not even sure the Purcell principle applies to the federal. I'm not sure there's a federalism aspect to

[00:38:23] [Dan] make a governor.

[00:38:24] [Will] Yeah. Sure. But right. So and I don't know what the court would do and what the cause of action is in this hypothetical doomsday scenario, but I think having it in those three factors makes it a little easier in a future case where something outrageously illegal and causing an obvious and inequitable is happening. Makes it a little easier to, in that case, allow the courts to stop it.

[00:38:46] [Dan] Okay. So that's something good about this.

[00:38:51] [Will] Well, yeah. But the bad thing is the thing you complained about last time, which is that it makes the whole thing even less rulish.

[00:38:57] [Dan] Yeah. Like

[00:38:58] [Will] like the nice thing about it'd be one thing you had a rule that was like the night before the election, the actual eve of the election at 6PM, like, pencils down, no more litigation. Right? That would be like

[00:39:11] [Dan] You know, it's like, I won't accept questions about the exam, you know Right. Once the exam period starts.

[00:39:15] [Will] Right. Like, we're locked. You don't change the syllabus once the course has started or whatever the you know? That would be one thing. Because this is all much more fluid, including, like, when it starts and what counts, it does have this sort of maddening quality where you never quite know Yeah.

[00:39:35] [Will] When the rules are locked and what the Supreme Court's gonna do.

[00:39:39] [Dan] Yeah. And that reinforces, you know, the, I think, increasing perception that the court is acting in a partisan fashion in some of these election cases. You know, because I do think this last one was maybe even a little bit of a tipping point where, you know, I started getting texts from people being like, oh gosh, you know, we gotta back the court. You know, it's and it's not like anyone is so bad, but it's just the drumbeat

[00:40:05] [Will] Mhmm.

[00:40:05] [Dan] Right, of all these things where the court seems, you know, very determined to help Republican legislatures gerrymander in as we approach an election. It's just I think it's causing people to, you know, really start to question the court's good faith.

[00:40:23] [Will] Although, it's funny because, like, it wasn't that long ago we had the Texas gerrymandering case where the Supreme Court stepped in to let Texas gerrymander, but then at the same time had the California gerrymandering case where the Supreme Court also let California gerrymander.

[00:40:38] [Dan] And Yeah.

[00:40:39] [Will] Now it's a little unfortunate in that. It's not like there are a lot of stay requests right now other than the quasi frivolous Virginia thing.

[00:40:48] [Dan] Yeah. I mean, the Democrats thing does not help the perception of the court among people that are not, like, versed in Supreme Court jurisdiction and procedure.

[00:40:58] [Will] Right.

[00:40:58] [Dan] Right? Because, I mean, obviously, the court really couldn't do anything there. Right. But it's still, like, people step back, and they're like, gosh. They're really rushing to help Republicans.

[00:41:08] [Will] Okay. So that's my question is we talked about stepping back in a second. But not stepping back, is there anything wrong with this opinion?

[00:41:20] [Dan] You know, I do think that it seems very aggressive in its approach to the merits of the issue. And I think Justice Sotomayor makes a decent point that the legislature has, you know, the way it has behaved and that it was ordered to create a map with two majority minority districts and just refused to do so. And, look, putting aside whether that was, you know, in retrospect, legally correct, it was the Supreme Court had upheld that ruling. And, you know, she says they're basically defying a federal court, and we shouldn't reward that. They're not coming to us with clean hands.

[00:42:01] [Will] Yeah. I mean, I always love to see the justices invoking the unclean hands doctrine in public law cases, something that Sam Bray and I wrote an article about. Alas, not cited by the dissent, but that's okay. But it is tricky because, you know, the lower court was wrong under Callais, not under Allen one, but wrong under Callais to say you need two districts, at least now. And so there is a kind of confusing thing about

[00:42:29] [Dan] how Although, again, the court said they weren't changing anything from that decision. Right?

[00:42:33] [Will] Right. But they said they weren't changing anything in part because the challenge had not been adequately made, and by now Yeah. It has. So I spent some time with the lower court opinion. I still don't have a strong view with the merits.

[00:42:44] [Will] I might think there are like, the majority is right that the lower court did not do a good enough job of disentangling. Like, you refused to do what we wanted you to from you are discriminating the basis of race.

[00:42:57] [Dan] Yeah. But I mean, some of this is a problem with the way the court has fleshed out the law here, which is it seems to say that I think you just these claims lose if there's Yes. Racially polarized voting that matches up with party affiliation. Right?

[00:43:14] [Will] Well, I think there's more than matching up. I think that the political scientists can actually sort of do some of the some of by looking at some of the margins can tell to some extent what drives what. Like, whether it's party or race that's driving the correlation. But, yes, in a lot of these cases, you will just lose because

[00:43:34] [Dan] Driving the correlation between white and white.

[00:43:36] [Will] Between party affiliation and race. Between or between party voting and race.

[00:43:39] [Dan] Yeah. Right.

[00:43:41] [Will] But yes.

[00:43:42] [Dan] But I mean, in a world where there was perfect correspondence, let's just say imagine that. And then the majority white the white political party had power and just decided to completely shut out the black political party, I think under this reasoning, as long as you could say it was because we wanted to win and not because we have racial animus, I think That's fine. Right?

[00:44:03] [Will] Well, I just think the perfect correspondence actually gets much more complicated. And we don't live off all the perfect correspondence. It doesn't matter. But like it I guess we talked about this in the Callais episode. Like, if there is a black Republican, what happens to them?

[00:44:15] [Will] In a world of perfect correspondence, you'd say, like, my machine fails. There cannot be a black Republican because there's perfect correspondence. In this world, black Republicans get Republican votes, and that's a sign.

[00:44:28] [Dan] Black Republican candidates?

[00:44:29] [Will] Sure. Yeah.

[00:44:31] [Dan] Yeah. Although, I'm not sure.

[00:44:33] [Will] Which is just a sign of the I

[00:44:34] [Dan] mean, this is about the race of voters, not the race of candidates, though.

[00:44:38] [Will] Yes. But that's what the way you'll find racially polarized voting in part is by looking at the correlation between candidates and voters, which is controversial. So so, anyway, I was gonna say, now I do think it to the lower court's defense, they point out that while under Callais, it might be the case that you can get around these claims all the time by setting off partisan motivations, Alabama did not, in fact, do that. They didn't say they did not lean as hard into partisanship as they should have in hindsight. So that also does support their overturning it.

[00:45:08] [Will] Like, Alabama instead leaned on some maybe weirder and more spurious claims. But even so, I guess, given Callais and given the vacator decision in Allen two, which we criticized a couple episodes ago, This seems like the most natural consequence of those two things. Now those two things might be bad, and so the most natural consequence of them might be more bad. But in a sense, it seems like it's not a huge surprise that this follows from Callais and from the

[00:45:38] [Dan] Yeah. Maybe on the merits. I mean, I think that the, you know, introducing this level of chaos, you know, I think is Yeah. Arguably irresponsible. And again, it just reinforces the fact that the court is willing to do this, just reinforces the perception of partisanship.

[00:45:55] [Will] Okay. Yeah. So then that's a setting back problem. So here's the part where I think I'm gonna agree with you even about a partisanship claim. I think this is bad.

[00:46:04] [Will] And even though it seems to me like this might have been what the law required, the court should have found a way not to do it. And I realize that it's very rarely my take, but that is my take.

[00:46:14] [Dan] I like it.

[00:46:16] [Will] Now maybe that would be not doing what the dissent said, which I think would be hard, but maybe that would just be

[00:46:24] [Dan] Just denying without opinion?

[00:46:25] [Will] Yeah. Or delaying it. Schedule it for oral argument in Yeah. In December.

[00:46:31] [Dan] We're relying on representations that the state had made at earlier stages that was like, we have to have an answer by this time. It'll be impossible. Right? I mean

[00:46:40] [Will] Now again, those are I mean, those are so Orwellian. I'm I can't really say I a favorite like, this

[00:46:46] [Dan] Why is that Orwellian?

[00:46:48] [Will] Well, I mean, the state said, give us an answer by 10AM June 1. And then the But

[00:46:54] [Dan] earlier in this litigation, they had made representations about just how hard it is to do this, and, like, we're really late in the day. Right?

[00:47:03] [Will] I mean No. We are. But it's I just mean, like, the state was trying to get an answer before the time they needed. And so if you are not gonna give them an answer, you to both not answer and then afterwards say, oops, too late. Yeah.

[00:47:16] [Will] But it's only too late because you sat on it because you don't wanna rule on it. That is also bad. So I mean, I understand why they and maybe the real problem maybe really my view is just that the court needs to time travel back to Allen 2 and not vacate in Allen 2 after Callais.

[00:47:32] [Dan] And set it for argument and just deal with it later.

[00:47:34] [Will] Or something or say, you know, right. It's not in the public interest to grant it because we already this is like this is the case we already dealt with and affirmed that even though now it's a little different. It just it seems and then this is, I guess and, again, I was either I'd take this back as I say this out loud, but it's really important that election law appear nonpartisan. Yes. Maybe even more important than it being nonpartisan.

[00:48:00] [Will] So I don't think the court is motivated by partisanship in these cases, but I don't think that's good enough. Yeah. And I think they are now boxed into a place where it looks bad. And normally, the court shouldn't care how it looks, but elections are a place where actually the court has said, like, you care about them both being legitimate and seeming legitimate. Yeah.

[00:48:26] [Will] And so it just Callais, I wish the court were bending over harder to make this appear nonpartisan. The other piece of this we talked to is a little bit, you know, Callais takes a long time to come out. Right? It could should have come out the previous term. It gets reargued this term.

[00:48:47] [Will] It's reargued first case of this term. It should have come out it should have come out before January. And for some reason, it takes a really long time. I don't know why that is. Some people I mean, there are various theories.

[00:48:58] [Will] Obviously, the court was struggling. Some people think the dissent was sandbagging. So if it's the case that the majority, you know, blames the dissent for the fact that it took so long to come out, you could see why they would then be extra irritated now and just be like, you know, the dissent tried to run out the clock, and we're not gonna let them get away with it. Yeah. And I'm not saying this will happen.

[00:49:19] [Will] But if that did happen, this is a case where even then, I think you just gotta let the dissent around the clock or just I don't know. I don't Yeah. I don't like the situation the court's gotten itself in here.

[00:49:31] [Dan] Yeah. I mean, and it really just it does make people think, gosh, they are really eager to get rid of that one extra democratic representative in Congress.

[00:49:39] [Will] Yes.

[00:49:40] [Dan] Heading into an election that people think is gonna be very close and very consequential.

[00:49:44] [Will] Yes. You know, it's a little like I think this is gonna sound quaint. There used to be these principles, these DOJ prosecution principles about trying to make prosecutions seem apolitical. Yeah. That included, like

[00:49:56] [Dan] Time limit. Yeah.

[00:49:57] [Will] Yeah. That included, like, if you have a crooked politician, like, don't indict them right before the election. Yeah. And not and it's what to be clear, the point was not just, like, don't try us win the election. It's like, even if the person is guilty and even if in fact you are not at all motivated by the election, give them like a halo of immunity once the election gets close because it looks bad.

[00:50:17] [Will] Yeah. And that's sort of an unjust and lawless policy that nonetheless serves a really important legitimacy goal.

[00:50:26] [Dan] Yeah. I mean

[00:50:28] [Will] Like, it's bad.

[00:50:28] [Dan] I don't know if lawless is the right way to describe it.

[00:50:31] [Will] Well, I it's bad to let feel like guilty people get away with stuff just because they're also running for office.

[00:50:35] [Dan] Well, mean but I mean, it contemplates that you will indict them after the election. It just is a matter of delay.

[00:50:40] [Will] Yeah. Right. But it's bad to even let the like, I don't know.

[00:50:43] [Dan] It's Yeah.

[00:50:44] [Will] You know? If an if a normal fraudster or embezzler or something is like, you know, can you wait to bring the charges and blouse my daughter's wedding? The prosecutors darn I mean, actually, I have no idea, but shouldn't necessarily be that sympathetic to that claim. But elections are different because Yeah. We rely on them and they're very fragile.

[00:51:08] [Dan] Okay. Well, I think I'm gonna take the w with your willingness to criticize the court for creating the perception of partisanship and our discussion of the case there, unless there's anything else you want to say about the dissent.

[00:51:21] [Will] I will let you get the last word down.

[00:51:23] [Dan] Okay. You know, and it is I would say it's just about the dissent, you know, it's what do you think? It's like maybe seven out of 10 heated? It's not an I dissent. It's an I respectfully dissent.

[00:51:34] [Will] It's a six.

[00:51:36] [Dan] Just a six. Okay.

[00:51:37] [Will] Yeah. I mean, it's not on the heat level.

[00:51:40] [Dan] Even the final line, because I choose to defend the rule of law and the right of all Alabamians to participate equally in democracy, I respectfully dissent.

[00:51:48] [Will] Yeah. I mean, it's a good dissent, but it's but it doesn't have the heat. It doesn't

[00:51:52] [Dan] Yeah.

[00:51:53] [Will] Right? It doesn't you know, the to put it is like Yeah. Is justice Sotomayor lighting the building on fire? She is not lighting the building

[00:52:01] [Dan] on fire.

[00:52:01] [Will] But and then Yeah.

[00:52:02] [Dan] And I wonder what it would take for a justice to, like, openly call the other justices partisan.

[00:52:08] [Will] Wasn't that KBJ and Alan too? No. And Callais too?

[00:52:13] [Dan] Close, but not quite there, I think.

[00:52:18] [Will] Anyway, I will put the KBJ descent in the Callais mandate at, like, a nine on the Hedonist scale. I

[00:52:25] [Dan] will put the

[00:52:25] [Will] Kagan descent in Callais maybe at an eight. Mhmm. That was a lot of, like, democracy, the country knows better, the dream of the like, that was written.

[00:52:34] [Dan] Yeah.

[00:52:35] [Will] And I'd put this at a six, maybe a five. It's quality. It's just, like, less heated. Maybe the heat actually makes it better. Black of heat makes it better, I mean.

[00:52:47] [Will] Okay. And then yesterday, Thursday, as we're recording this, let's figure out decided some merits cases.

[00:52:54] [Dan] Yeah. And

[00:52:55] [Will] And they were boring.

[00:52:56] [Dan] Yeah. Nothing super earth shattering that our listeners will have been waiting feverishly for. You know, they tend to, you know, push those ones out pretty late, so I think we're gonna have a busy June, part of which you and I are both gonna be on vacation. So we won't necessarily be getting you recordings in real time during the kind of like mid June, but we should be back for the final week of June and into July to catch you up.

[00:53:26] [Will] Unscheduled and unpredictable, Dan.

[00:53:27] [Dan] Yeah. So sorry if you were predicting otherwise, but we did get a few. Yeah. And you wanted to talk about this one, Sripetch versus SEC, Securities and Exchange Commission?

[00:53:39] [Will] Yeah. I don't want to talk about Hikma Pharmaceuticals, which I have not read and involves patents. And I don't wanna talk about FCC versus AT&T, which I have read, which is a Jarkesy Seventh Amendment agency adjudication follow-up that I think is straightforward, not interesting.

[00:53:58] [Dan] Yeah.

[00:53:59] [Will] But what did you say?

[00:54:03] [Dan] I don't

[00:54:03] [Will] know. We tried to practice this before the show, but

[00:54:05] [Dan] Just yeah. Just let it go. Well, I listened to the chief saying it, but then he kind of like stumbled over securities and exchange commission. So I kind of lost a little confidence in him that morning. Okay.

[00:54:17] [Dan] So this is an SEC case involving something called disgorgement Mhmm. Which it's not totally clear. I mean, it's clear what this is now, but like in the bigger picture, it's not totally clear what disgorgement is. And that's sort of gonna be the question that we're gonna deal with when we read Justice Thomas' concurrence in a moment.

[00:54:42] [Will] Right. Although isn't disgorgement giving stuff back? Isn't that the right to think about it?

[00:54:46] [Dan] Yes. But what stuff? And to whom? Right? Those are both, like, totally unclear.

[00:54:54] [Dan] Right?

[00:54:55] [Will] Yeah.

[00:54:56] [Dan] Not in I mean, not in this case Yeah. Exactly. But

[00:55:00] [Will] Right. But, like right. Is it profits and to who? But I think of it as, you know, like, you know, your kid steals some candy from the candy jar. And, like, maybe they put some in their mouth and, you know, whatever.

[00:55:12] [Will] Like, you catch them in act. Like, Disgorgement is like, you gotta give up whatever there is. Now maybe Yeah.

[00:55:17] [Dan] Right. But you don't wanna put it back in the candy jar.

[00:55:20] [Will] Well, some yeah. Some of it, the candy that's still wrapped in their pockets, you know, back in the candy jar. The candy that you had to, like, pry out of their mouth, you probably don't put back in the candy jar. Some of the candy is probably gone in a place you can't get it anymore, but, like, there's a you know? And that may not be a sufficient remedy, but you got a sort of Yeah.

[00:55:39] [Will] No ill gotten gains.

[00:55:41] [Dan] Okay. So in disgorgement, you know, it has this kind of feel of one of these old school kind of restitution type remedies. We'll talk about this in a second. But I guess disgorgement as such is like kind of a more newfangled thing. It was a thing that kind of the SEC started doing some number of years ago and has now become a thing.

[00:56:03] [Dan] It's not there was not like a writ of disgorgement that you could go get from the chancellor Yeah. You know, in England hundreds of years ago.

[00:56:13] [Will] Yeah. We'll talk about this in a minute. But yeah. And so the majority has to ask

[00:56:22] [Dan] To get disgorgement, for the SEC to go get disgorgement, I. From someone who violated the securities laws Yeah. And in this case, the defendant, you know, who was being required to disgorge, there's no dispute that he violated the securities laws. He definitely violated securities laws. And then, you know, the SEC is trying to get his ill gotten gains, get him to disgorge them.

[00:56:46] [Dan] And then the question is, does the SEC have to prove that the victims of the violation suffered a pecuniary loss? So to get the person to give up their profits, do you then have to go look and say, hey. Those victims suffered damages or not suffered economic harm?

[00:57:02] [Will] Right. And the court says no. Yeah. And the court says

[00:57:07] [Dan] kind of without knowing the overarching legal framework, it seemed pretty obvious to me. Right? Which is the basic idea, which is like, you know, this isn't damages. This is a different thing. Damages is where you go say, that victim suffered harm.

[00:57:20] [Dan] Give the money. Give them money. And this is, like, you did something bad. Give away your gains.

[00:57:27] [Will] Yeah. Right. I mean Right. Right. It's a way in which you again, we could think of disgorgement and restitution as two sides of the same coin.

[00:57:34] [Will] Like, one is they're both kind of like undo it remedies. Yeah. One is give up your ill-gotten gains, and there's make this person whole. But, obviously, the coins the two sides of the coin might not be the same size. There might be cases where there are lot of gains even there aren't a lot of losses and vice versa.

[00:57:52] [Will] Yeah. So this seems intuitive as the court applies, you know, walks through various kind of technical arguments, so why not? Sripetch says, you know, nope.

[00:58:04] [Dan] Yeah. And there are these old cases where, like, some defendant did something that technically violates the plaintiff's rights in some way, doesn't clearly cause them any economic harm, but still seem kind of unfair, and the defendant has to, like, give up their gains. Yeah. Seem those seem reasonable to me.

[00:58:22] [Will] Yeah. Alright. Then the thing that really caught my eye, and that was interesting, was a concurring opinion with justice Thomas, which begins, the court correctly holds that the SEC can seek disgorgement as a remedy for securities fraud without showing the victim suffered pecuniary harm. The court assumes without deciding the disgorgement is an equitable remedy. But in a future case, we should recognize the disgorgement is now a legal remedy for which the Seventh Amendment requires a jury trial.

[00:58:52] [Dan] Yeah. Okay. And I think there's kind of two issues here. One is, does the statute say it's not an equitable remedy, which would then have this implication that it must be legal

[00:59:05] [Will] Mhmm.

[00:59:06] [Dan] And therefore require a jury trial? And he's got some arguments there. The statute seems to have like a section, equitable remedies, and it says this other disgorgement thing. But then I think that's not exactly the same question as whether, you know, regardless of how it's characterized, whether it nonetheless has to be thought of as legal and would require a jury trial. Does that seem right?

[00:59:27] [Will] This is right. Because out of the Seventh Amendment doctrine, the I mean, the Seventh Amendment doctrine for what requires a jury trial is an explicitly kind of substance originalist inquiry. Like, the courts the doctrine is something like under the principles of Westminster in 1789, you know, does this belong in chancery? And you famously have some funny cases like Markman, like a you know, Well, what about, you know, patent cancellation proceeding under the you know, or something that, like, didn't exist back then? You have to decide where

[00:59:58] [Dan] Yeah.

[00:59:58] [Will] Would have been. And so I think that's like, the core of this is, like, the substance of disgorgement at a deep level is that law. And

[01:00:11] [Dan] justice Thomas seems to be saying this does not have an old school equity analog.

[01:00:18] [Will] Right.

[01:00:19] [Dan] Which I didn't know. I mean, I didn't know enough about this area of law. I kind of would have assumed there was something like this, right, in old school equity.

[01:00:27] [Will] There are things like it. Yeah. That's what's weird.

[01:00:29] [Dan] But what makes it different? Like, what makes it different from the stuff that it was like?

[01:00:33] [Will] So that's the million dollar quest. So that and this is in a sense all of these interesting equity cases are this thing in its exact formal form is new. Is it enough like this other thing that used to be there that it's not new? Like, was CASA. The whole debate in Mhmm.

[01:00:52] [Will] In CASA with nationwide injunctions. Everybody agreed that there weren't things like you'd call universal or nationwide injunctions inequity.

[01:01:00] [Dan] Bills of peace and things like that.

[01:01:02] [Will] Right. But there were bills of peace. And is this or is this not enough like a bill of peace? And then the court said it's not because that was a dragon and, you know, the different analogies. But so I think it's that kind of question.

[01:01:17] [Will] And just as Thomas says, you know, there are things about disgorgement that make it more like restitution and less like some of the equitable analogs he describes like

[01:01:29] [Dan] This is not my area, but I had always thought, like, restitution was somewhat kind of like third category in addition to law and equity. It was, like, at least in some weird conceptual box. And I guess he seems to be just treating it as it's part of law. Maybe that's right.

[01:01:43] [Will] Well, that's the I mean, the problem is, in some sense, everything is in the law equity. Like, remedies are in the law equity boxes. Even novel things have to be kind of assimilated into the two. Yeah. But there are also equity.

[01:01:57] [Will] Sometimes they're referenced to remedies. Sometimes they're referenced to, like, substantive areas of law, like trusts. These are related. So yeah. So justice Thomas says, the disgorgement is not enough like constructive trust and equitable liens, which are I think it's kinda like because they don't require you to trace the chain of title.

[01:02:15] [Will] And it's not quite like the accounting for profits, and so it's more like restitution and other legal remedies. So I don't know anything about this is true. I do know that this opinion cites, I think, six different things written by my colleague Sam Bray from his remedies casebook to large articles to, like, his chapter in the research handbook of fiduciary law. Like, somebody really mastered the pre corpus to write the spin in. I did check with him, and he says, Thomas is basically right.

[01:02:53] [Will] That the Okay. The maybe the part about the statute and, like, thinking about the statute part, he would emphasize a little differently than Just Thomas did. But Mhmm. But that the core exploration of restitution and the ways in which it's novel and not like the equitable analogs are correct.

[01:03:07] [Dan] It would be kind of unfortunate if Justice Thomas had read like six Bray pieces and cited them all and then still come to the wrong conclusion from them, unless they were all c also you know, but c sites. Yes.

[01:03:20] [Will] Well, yeah, I was looking for my Marshall McLuhan moment, but no. This is apparently according to the keeper equity, this is correct and interesting and maybe important.

[01:03:36] [Dan] Do you think this is fairly seen as part of like a larger kind of conservative courts project to kind of rein in the administrative state? Right? This whole Jarkesy, these kind of second amendment. And I don't to be clear, don't mean the majority. I just mean the justice Thomas proposal.

[01:03:56] [Dan] Expand the scope of the seventh amendment.

[01:04:00] [Will] I mean, yes and no. I mean, it's interesting that it's the Seventh Amendment it's interesting that it's the Seventh Amendment doing the work in Jarkesy and then also the Seventh Amendment doing the work here because the cases are so different. And, like, I think that Jarkesy cases are really article three Mhmm. And maybe due process cases that got relabeled to Seventh Amendment cases because there's less case law at Seventh Amendment and more case law at article three. So it was kind of a way to like a new

[01:04:30] [Dan] way to happening as administrative adjudications. Right. This is still in federal court. Right. But It's just the jury trial question rather than

[01:04:38] [Will] Right.

[01:04:38] [Dan] You know, jury trial and Article three court.

[01:04:41] [Will] Right. So I don't think that's the plan. But it could be that this that the way we'll all that these things will work together by sort of making Seventh Amendment more important. Yeah. Now it's interesting to consider that along with just a score such as sort of refrain that we need to incorporate Seventh Amendment, which would then allow similar war against the state level administrative state?

[01:05:03] [Dan] No. I gotta think that's not likely. Right? Oh, I mean That just seems like it would be such a big deal.

[01:05:11] [Will] I mean, I hope they don't do it before Sam and I can write our article about this.

[01:05:17] [Dan] And are you pro?

[01:05:19] [Will] So no. Well, so and Sam and I don't necessarily have any of the minds about this. Incorporating Seventh Amendment the way the court incorporates everything else, namely sort of assembly line incorporation, where you just, like, take whatever is on the Seventh Amendment and, like, run it forward against the states Mhmm. I think is not legally justified and would be catastrophic. That is currently the only tool the court has and, like, Ramos versus Louisiana kind of doubles down on that.

[01:05:46] [Will] Right? I think you could incorporate sort of the core of the Seventh Amendment and not the technicalities. And there's actually a discussion about this at the founding about Seventh Amendment. One of the people ratifying sort of calling for the Seventh Amendment, you know, response for these objections by saying, no. No.

[01:06:07] [Will] It's the core. It's the, you know, the civil jury is what we want, not the exact, like, particulars and refractions it has over every state's civil practice. Because even at the time, states had a different civil practice. So I think you could and maybe even should incorporate the core. But but, again, that's a that might be very hard for the courts to figure out, and that's not a thing the court currently knows how to do.

[01:06:32] [Will] So I'm nervous Well, about

[01:06:36] [Dan] get that article out.

[01:06:38] [Will] It's seventh or so in the queue.

[01:06:46] [Dan] Okay. That's pretty deep down. Well You're a productive guy, but you don't write I think you write seven articles a year, do you?

[01:06:55] [Will] Well, I certainly don't publish seven articles a year. Some things get written and abandoned or discarded. But and some things jump the queue. You

[01:07:04] [Dan] You should release some of your articles as like b sides to other articles, you know?

[01:07:10] [Will] Should I?

[01:07:10] [Dan] You know? I don't know. Re release them under a fake name?

[01:07:17] [Will] I have often wished that there was a sort of fake name to publish under.

[01:07:22] [Dan] Jim Chen did that for a while. A professor. He published it under Gil Grantmore.

[01:07:28] [Will] Uh-huh.

[01:07:29] [Dan] Yeah. Possibly another one too. Very strange.

[01:07:33] [Will] Well, there are times I think sort of there is somebody should be making it. Like, there's a space in the argumentative, like, thing for this claim. You know? Like like, this claim is plausible. People don't quite understand how plausible it is because sometimes you don't really understand the plausible argument until it's written up.

[01:07:49] [Will] And, like, somebody needs to kinda, like, write it up and put this argument on the table. And yet I still don't think it's true. Correct? So I don't wanna write it

[01:07:57] [Dan] Do you feel like there's not a way you could write it that

[01:08:00] [Will] Sometimes there is. I mean, so that's so some are sometimes there is, but sometimes no. Yeah. You know? Luckily, sometimes it turns out to be somebody else who wrongly thinks that article's correct, and so then they write the article.

[01:08:16] [Will] And I think the problem of people saying things they don't believe is a kind of pervasive enough problem that I worry about. Yeah. You know? But

[01:08:23] [Dan] And you feel some need to be consistent article to article.

[01:08:27] [Will] I don't care about being consistent, but I do care about being honest. So if I genuinely concluded that I was just totally wrong, it wasn't there before, I would Yeah. I wouldn't feel any guilt about it. I mean, I Yeah. I think the thing with consistency, you shouldn't feel any guilt about abandoning your previous wrong position.

[01:08:43] [Will] Depending on why you were wrong the first time, you maybe should feel so embarrassed about having the previous wrong position. But that's in the past, and then it's best to just try to get it right.

[01:08:54] [Dan] Yeah. I mean, I guess, you know, I tend to think more like there's a lot of things I think are interesting, you know, and if they're plausible, I'm not always 100% sure, but might be worth making the argument and fleshing it out. But I don't necessarily feel committed to defending it beyond that. And maybe I'll say something else different that isn't totally consistent that feels okay to me. Yeah.

[01:09:16] [Dan] But like, I'm not someone who I'd see might sees myself as having like a project, you know? Right. You have a project.

[01:09:23] [Will] Me?

[01:09:24] [Dan] Yeah.

[01:09:25] [Will] What what's my project?

[01:09:26] [Dan] Original law originalism.

[01:09:28] [Will] I mean, that's a project.

[01:09:31] [Dan] That's a bit that's a big that's your big one. Right? I'm sure you've got other ones,

[01:09:35] [Will] but I hope it's I mean, that's You've

[01:09:36] [Dan] got a big you've got a pretty big through line there.

[01:09:39] [Will] I mean, I think original artisans are correct, and more people need to believe it, and I hope to get a book about it done sooner and later. But I said that it's just part of a much bigger project. What's the bigger project? Just Understanding the law.

[01:09:57] [Dan] Well, I mean, a lot of people have that project.

[01:10:01] [Will] But Fewer You than you'd think, Dan. Many fewer.

[01:10:04] [Dan] In the legal academy.

[01:10:05] [Will] Well, indeed. I mean, if you had to say, like, what percentage of law professors, like, is their project understanding the law? I mean, 20% tops. Right?

[01:10:17] [Dan] It depends what you mean by understanding the law because can that include, like, understanding the broader legal context to the law, like legal history?

[01:10:25] [Will] Well, it depends on why they wanna understand legal history. If they wanna understand legal history because they think so the thing is to have your project be understanding the law, you have to think that law is a thing that could be understood.

[01:10:35] [Dan] Like, the law has a content that you can explicate.

[01:10:37] [Will] Right. Not necessarily one way

[01:10:38] [Dan] of then law is just like, you know, what, you know, politics and history, you know, are happening at that time.

[01:10:45] [Will] Well, again, could think law is politics that has content, but, like, you have to think it's not just gobbledygook or Yeah. You know? And you have to think that you don't already understand at all. Yeah. And there are lots of people who have products with respect to the law for which understanding is secondary.

[01:11:01] [Will] Like, their main goal is to move the law to better do x, y, or z. And, like Yeah. Understanding is like a thing they need to do sometimes because you can't move a rock if you can't understand it. But the set of people who think there is law, that it can be understood, that they don't understand it already, and that they don't have better things to do with it, I guess 20% is probably way too high.

[01:11:22] [Dan] I'll think about that.

[01:11:25] [Will] K. Sorry. I didn't mean to get on my hobby horse.

[01:11:32] [Dan] Okay. Well, I think that's it for today.

[01:11:35] [Will] Thanks for listening. Please do remember to rate and review the podcast on the iTunes podcast app or wherever it is you found us. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks to the University of Chicago Women's Board and Deborah Kefarro for all of your support.

[01:11:52] [Dan] Thanks to SCOTUS blog and visit our website, dividedargument.com, where we have transcripts now posted in real time. Blog.dividedargument.com for commentary from the extended divided argument universe, store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com, and you can leave us a voice message. Actually, on our website, there's a little feature, or you can go the old fashioned way and call us, (314) 649-3790. If there is a long delay, until our next episode, it will be because we've had to disgorge our many profits from this podcast.

[01:12:32] [Will] But now we get the jury trial.

[01:12:42] [Dan] The case is submitted.