Jezebel Shouting

[applause]  

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

Will: And I'm Will Baude.  

Dan: So, Will, we have yet another live show. We've done a few more of these recently than we tend to do. This one is back at a friendly location for me. We're at my home institution, WashU Law, and we are here for admitted student days. So, we have, in the audience, a number of prospective students, and my job is to convince them to come here and not to a place like the University of Chicago. [audience laughter]  

So, we'll see at the end. Maybe we should take a poll and see whether we've persuaded people of that by the end. I should also mention, this podcast is in partnership with SCOTUSblog. This is, I think, just our second episode since that partnership began. And so hopefully, we have some new listeners coming from the SCOTUSblog side.  

Will: For my part, I brought stickers and magnets that people should feel free to come up and grab at the end of the show, take them home, put them on your fridge. I will say bringing them was a little bit more of a travail than I expected. I spent maybe 25 minutes getting through security, over half of which was spent on the magnets. [audience laughter] The guy pulled my bag aside and was like, “What do you have in here, sir?” When I told him they were magnets for a podcast, he just seemed even more suspicious. [audience chuckles]  

Dan: I'm surprised, because you actually usually do things to cause more trouble when you're flying around, because you have a sweatshirt that says, “Get rid of qualified immunity”? 

Will: Yeah. Last time, I flew with my abolished qualified immunity hoodie a couple months ago, and I decided not to risk that now, especially while [audience laughter] there's legislation right now pending to reinstate Bivens and maybe abolish qualified immunity related to the TSA funding thing, and I thought--  

Dan: We'll see about that. I imagine that the folks working at airports who have not been paid in a little while might be feeling a little saucier than normal. So, probably for the best. I'm glad that you made it here. I was a little nervous with everything going on at the airport. So, let's talk about what we're going to do today.  

So, this podcast, typically we make a real deep dive into some pretty nerdy technical areas of Supreme Court doctrine. We have an audience here full of pre-law students who maybe have not taking classes like Fed Courts. And so, the responsible thing to do would be to dumb everything down, make it real simple, hold people's hand. We are absolutely not going to do that. So, buckle up.  

No, I'm going to make one attempt to do that in a minute. Let me just tell you what we're going to do. So, we're going to catch up a little bit on a few things from the Shadow Docket. We're going to spend a good amount of time talking about a case called Olivier v. City of Brandon. Maybe I'll tell you a little bit about what that case is in a minute, but why don't we dig into the Shadow Docket first? So, I think we have one summary reversal, and then a couple dissents from the denial of certiorari. So, summary reversal, Zorn v. Linton. I think we could at least tell this audience what a summary reversal is.  

Will: Okay, fine. So, a summary reversal is when somebody asks the Supreme Court to hear their case. They file a cert petition and say, “Grant this case.” And the Supreme Court says, “Actually, this is so easy. We don't even need to hear any more argument. Just on the basis of what you've shown us so far, we can tell this is wrong. We'll just write the opinion now, skip any need for briefing and further argument, and just cut to the chase.”  

Dan: And so, you'd think that the lower courts get a fair amount of stuff wrong and in ways that are bad and hurt people. You'd think it would make sense for the Supreme Court to do this all the time, but they now do it maybe just a couple times a term. I didn't look up the most recent statistics, but it's very rare. And they do so in a way that's slanted.  

Will: Yeah. Lower courts get things wrong all the time. So, the question is, how does the court decide what mistakes it most cares about? And to first approximation, the answer is, if a lower court grants habeas corpus to a prisoner in state court or allows somebody to sue a police officer, then the little red light in the Supreme Court goes off that warns the court that somewhere somebody might get a constitutional remedy and all the Justices scramble to go make sure that that doesn't happen.  

Dan: I think that's a little unfair, because it also extends to cases where someone tries to sue an FBI agent, things like that. Yeah, so, this has been something where the court has been criticized a lot. There really does seem ideologically slanted, because the court has this complete discretionary power, it can just pick whichever cases it wants to step in, take some time out of all the cases where something unjust might have happened. It does seem like the court has a certain view on how it should use that rare power.  

This is another case that, I think, continues that narrative. So, it's a case where the plaintiff was a woman who was protesting at the governor's inauguration in Vermont. So, she was at the sit in at the state capitol, and the capitol closed, and she and a number of other protesters refused to leave. They were told they were trespassing and would be removed, and she refused to move.  

And in the course of her removal, an officer took her arm, put it behind her back, put her in like a pain wrist lock, and dragged her out. And her allegation, is that this violated her rights and caused her a lot of physical injury, which might sound like the kind of thing that someone is allowed to sue for.  

And so, the lower court-- This is coming from the Second Circuit, which is the court of appeals, federal court of appeals, that governs Vermont, New York, Connecticut. That's it, yeah, okay. The Second Circuit had said, “We're not going to say who wins yet, but this is the kind of claim that can go forward. We can let a jury decide whether this violated the plaintiff's rights.” And the court comes in and says-  

Will: Not so fast.  

Dan: Yeah.  

Will: Right. So, the court says, “In general, you can only be held liable-- A police officer can only be held liable for violating your constitutional rights. Not just if they acted unconstitutionally, but if they acted outrageously, unreasonably in a way that everybody should have known was clearly illegal.” And yeah, the Second Circuit had some previous cases where police officers were held to have used too much force. But in that case, the guy got his head slammed into the floor. And in this case, it's merely--  

Dan: In this case, there was a brief warning-  

Will: Yeah.  

Dan: -that changes everything.  

Will: Okay. 

Dan: And so, as you can imagine from the way this qualified immunity rule is being enforced by the court, it makes it very, very hard to sue. Even when someone's constitutional rights are violated, that's not enough. You have to show that they were violated and that there was a previous opinion that had said, like, something close to that exact thing happened and that it was a constitutional violation.  

Okay. So, we have here a dissent from Justice Sotomayor, joined by Justice Kagan and Justice Jackson, that digs into the substance of the decision and she takes issue with the court's conclusion that the violation here was not clearly established. And then, she also returns a theme at the end, which is the theme that we were mentioning a second ago, which is that the court chooses to intervene in a very lopsided, asymmetrical fashion. I think that criticism lands, right? 

Will: Yeah. So, I think Justice Sotomayor drives it home, especially by also at the same day there was another case where involving qualified immunity where people ask the Supreme Court to intervene and correct an error by the lower courts in the other direction. A woman named Priscilla Villarreal, who's a local reporter and troublemaker, who was arrested for having the temerity to talk to public officials and report about it on Facebook.  

And so, she sued and the Fifth Circuit said, “The police officers get qualified immunity on very dubious grounds.” And Justice Sotomayor said, “Well, look, why don't we take this case, too? If we're going to be in the business of second guessing whether or not lower courts have gotten the adjudication of qualified immunity cases, like, why don't we take some on both sides?”  

Dan: And we get no explanation. Even though we have a short opinion by the Supreme Court granting relief in the case from Vermont, they explain why the lower court decision is wrong, but they don't say, “And by the way, here's why we decided to step in.”  

Will: Dan, the Supreme Court is not a court of error correction.  

Dan: Except when it is, right,-  

Will: Yes.  

Dan: -when they choose to be. And then, here in the other case, in the Villareal case, there's no explanation from the court at all. The court just denies certiorari. The court gets 7,000 or 8,000 petitions every year from people saying, “Please hear my case.” Most of them are denied without an opinion. There's been a lot of criticism from you and others about the court's refusal to explain how it is using its discretionary authority.  

When you first wrote the original Shadow Docket article, I think you were actually talking about cases like this. That was a prominent subject of that article about cases where the court was stepping in and these qualified immunity, very fact bound disputes, because the court usually says, “We don't mess around with fact bound disputes that affect just a single person. We are here for the really big legal issues.” And yet, sometimes they don't do that.  

Will: Now, I will say sometimes the court does provide an explanation. So, I was making fun of all the cases earlier where the court steps in, because a lower court might grant somebody a writ of habeas corpus. And there the Supreme Court has said explicitly, “The reason we do this, even though we don't normally engage in error correction, is because there are a bunch of lower court judges out there who don't believe in our restrictions on habeas corpus, and we don't trust them, and so we've got to watch them like a hawk and second guess them, because they are sort of subverting our authority.”  

Now, they haven't ever said that about qualified immunity. They haven't ever said, “There are a bunch of lower court judges out there who don't believe in qualified immunity and we got to second guess them, too.” There are. It would be a little embarrassing for them to say, because for habeas, there's a statute that makes it very hard to get habeas. And for qualified immunity, there's a statute that-- 

Dan: Doesn't say anything about it.  

Will: Yeah. That says, “You're supposed to be able to sue anytime a state official violates your constitutional rights.” So, at some point, they would have to explain why they are as mad about people subverting made up atextual, illegal restrictions on remedies as they are about people restricting real law.  

Dan: Yeah. Let's talk about qualified immunity for a second. You're a prominent critic of qualified immunity. I'd imagine even some folks in the room who don't have legal training might have heard about it. It got a lot of attention in the press in recent years, as there's been more attention paid to police misconduct and so forth. It's a doctrine that makes it really, really hard to sue government officials. You were saying it's not in the statute, so where does it come from?  

Will: History,-  

Dan: Okay.  

Will: -maybe. The Supreme Court about 50 years ago, when it first started taking seriously all these constitutional claims, quickly worried that it couldn't take them too seriously and so, it created a doctrine to make it harder to sue, and then just each decision repeats that the previous decisions have long recognized it.  

Dan: And your claim has been that there's no basis in history for this rule.  

Will: Yeah. At least nothing like the modern rule. If you dig around in history and squint, you can find times in the 19th century and at the founding where courts sometimes came up with various excuses to let officials get away with violating the law. If you squint at those, you could imagine how they morphed into qualified immunity one day, but there's a lot of morphing.  

Dan: There's other doctrines like this. I love how judges have made up. Maybe you think this one is more justified, made up the rule of absolute judicial immunity.  

Will: Oh yeah. That's real. That's real. 

Dan: That's real. Okay. [Will laughs] Judges can't be sued. Prosecutorial immunity, presidential immunity. This is-- [crosstalk] 

Will: Wow, that’s more made up. [laughs].  

Dan: That's more made up. Yeah. [audience laughter] Okay, so, this is a place where the court has found rules that at least none of these are textual.  

Will: None of them are textual.  

Dan: Yeah.  

Will: Again, in a responsible world, we would have something called the common law, where there'd be a long history of unwritten decisions that establish certain precedents and not others, and courts would use that as a background interpreting the statute. In our world, it seems more like the court makes it up as it goes along based on whether it likes these claims.  

Dan: And the Justices who are doing that are ones that criticize the court and criticize other Justices for doing things that they perceive are made up in other contexts.  

Will: Yeah. Although, again, there are honorable exceptions. So, Justice Thomas, who loves to criticize the court for making things up and not following the statutes, has said, “Gosh, qualified immunity seems to be a place where we made up something and stopped following the statute. We should probably do something about that.”  

Dan: And yet, he's joining, or at least not dissenting from these opinions enforcing qualified immunity.  

Will: Yes.  

Dan: So, what's going on there?  

Will: I don't know. We should ask him.  

Dan: Okay. [audience laughter] Yeah. These cases-- I've said this before, but these cases frustrate me because of all the situations where it makes sense for the court to expend limited resources to come in and correct some injustice. These ones don't strike me as fitting in that category, because yes, these are cases where a police officer is being sued for money, but basically 100% of the time the city, the county is going to pay the damages award. So, there's not really a little guy who's being smushed the way there is in a habeas case where there's someone who is wrongfully in prison and wants to get out.  

Will: Yeah. Now, I will say that does mean that it's ultimately the taxpayers of Vermont who have to pay for this. So, maybe the court is just thinking about your average farmer.  

Dan: There's lots of bad decisions that implicate taxpayers, I would say.  

Will: That's true.  

Dan: Okay. Was there more you wanted to say about either of those? I guess the Zorn case does still dance around an issue that I think we still don't have a conclusive answer about which is whether a lower court decision can count as clearly establishing the law.  

Will: So, it does dance around that. It says, “Is it even possible for a lower court decision to clearly establish law, or can that only come from the Supreme Court?” This is a very odd thing, because the Supreme Court has squarely held that a lower court decision can establish clearly established law in a case, Camreta v. Green, I think maybe from when you clerked.  

Dan: No, a little bit after, I think.  

Will: The court has said that it can happen. And then, after that, the court has just said, “Well, we're not sure whether it can.” So, it's a funny way to undermine precedent, is you just hold something and then the next year, you're like, “I don't know, did we ever hold that? I don't remember.” You hope that over time that will create enough fog that the decision goes away.  

Dan: Okay. So, that's our nerdy Fed courts angle on that one. More on Villareal?  

Will: No, we should do Olivier. 

Dan: Okay. What about Reed v. Goertz, quickly?  

Will: Oh.  

Dan: You don't want to talk about that one?  

Will: Well, sure.  

Dan: It's another Justice Sotomayor dissent from denial of certiorari. So, another case where the court could have heard the case, but chose not to. It is a follow-on from a case from a few years ago where the court sent this very case back down to the lower courts. It's gone back through the process, and come back up, and now the court is not interested.  

Basically, without getting into the complicated procedural details, it's a case where there's somebody on death row who wants to get access to DNA evidence that might establish his innocence. The local prosecutor in Texas is refusing to allow that. The court previously said it's at least possible to bring a claim saying that this is a constitutional violation, but I guess now that's not actually going to go anywhere.  

Will: Yeah, this is a nice way to reinforce the principle that most of the time, the Supreme Court is not a court of error correction. So, they had previously taken this case, because there was a legal issue and disagreement about various rules for when you could get access to DNA testing. They resolved the legal issue they thought was important. They send it back. It may well be that the case is still being mis adjudicated and that in the end, all the Supreme Court has resolved is an abstract issue of principle rather than Justice for the particular litigant. But that's fine, because the Supreme Court is not a court of error correction.  

Dan: And it may be that there's someone on death row who could die who's actually innocent, and that we could just test this evidence and it would be super quick and easy, and yet nobody wants to do it.  

Will: Yeah. So, to be fair, in this case, part of the issue is it's not clear how super quick and easy testing the evidence will be. The objective objection of the lower court, is that the evidence is possibly contaminated, and so it's not clear how much it'll tell us. His response is, “Well, it'll tell us something.  

Dan: It could have the DNA of the supposed alternate perpetrator of the crime.  

Will: Yeah, but maybe that doesn't tell us anything, because maybe it got there some other way. I don't know.  

Dan: Okay, I'm not buying that. But I guess we should go on and actually talk about the one big opinion. I guess it's not a very big opinion, but it is an opinion that the court issued last week. There were a couple this week that maybe we'll circle back to in a future episode, but now we're just going to focus on this one, Olivier v. City of Brandon. It's going to be a 13-page unanimous decision by Justice Kagan. Let me just explain the question presented-- I kind of using language that's going to be really simple for everybody.  

It’s whether Humphrey v. Heck’s favorable-termination bar extends to a non-custodial Section 1983 claimant who lacks habeas access under 2254 and seeks exclusively prospective anti-enforcement injunctive relief against a facially challenged time, place, and manner restriction, where the claim necessarily impugns the predicate conviction but contemplates no retrospective remediation cognizable under the Heck framework. So, that's not actually the question presented. I asked Claude to take the question presented, and make it sound more technical and harder to understand. [audience laughter]  

Will: Uh-huh. It's Heck v. Humphrey Claude.  

Dan: Yes. So, then I did something else which is I went back to Claude and I said, “Claude, are you familiar with? And I think you're going to be familiar with xkcd, the webcomic and the classic Up Goer Five comic, which the idea is how can you explain things using the top thousand most common words in the English language?” Actually, thousand is not one of those words. So, it's actually how do you do this in the ten hundred most common words in the English language? And so, I asked it to do it for both Olivier and Heck. Maybe I'll do Olivier first, and then we're going to have to circle back and explain what this earlier case, Heck v. Humphrey is. So, here's the top ten hundred words version of Olivier.  

A man named Gabriel Olivier felt it was his job to go out and talk to people about what he believed. The city made a rule saying speakers near shows had to stand in a special area far from the group. Olivier found it too far away to be heard, went back to the street, and police took him away breaking the rule.  

He paid a fine and did not want to fight the case at the time, but because he still wanted to speak there, so he later went to court to say that the rule was wrong under the part of the law that protects free speech. The city said, “You already lost a case under this rule, so Heck blocks you from bringing this one, too.” That raised a hard question, “Does Heck block your case anytime a court has already decided against you under the same law, or only when you were asking the court to say that past decision was wrong?”  

Will: That's pretty good.  

Dan: Yeah, I was surprised that court is in the top thousand words.  

Will: Yeah. I actually have a project halfway through of trying to translate the Constitution into the top hundred words, which a constitution--  

Dan: How's that working?  

Will: Constitution is not one of the words, so it has to be called the plan for deciding things. [audience laughter]  

 
Dan: Okay, I like that. It seems good.  

Will: I will say I started this pre large language model, so presumably Claude could just make short work of it now and finish it out.  

Dan: Yeah. And so, this is going to be a case about this earlier decision, Heck v. Humphrey. I got Claude to give me an even shorter version of the rule there, which is that if your fight for money would show the past decision against you was wrong, you cannot bring that fight until the decision has been taken away. Do you want to explain that in mid words, [Will laughs] like not too dumb, not too smart?  

Will: So, the basic idea is if you've been convicted of something and you want to bring a new suit, you can't bring that--  

Dan: For money, at least [crosstalk] originally. 

Will: At least for money, damages.  

Dan: Yeah. Under the same statute that people have been using in the qualified immunity cases we were just talking about. 

Will: Under the general civil rights statute. You can't do that if bringing that suit would necessarily impugn your prior conviction.  

Dan: So, it may be an example. You were convicted, you argue that something in that criminal process was unconstitutional, and then you want to go sue the government actors involved and say, “Hey, you violated my constitutional rights. Give me money.”  

Will: Right. So, the original core idea is you were in jail for a crime you did not commit or a  

trial that was unfair in some way. Getting out of jail requires you to bring over writ of habeas corpus, which is very hard to do, because you have to exhaust your remedies. There are other things. There's now a statute of EDPA that makes it hard that didn't even exist at the time of Heck.  

And so, you think, “Aha, I've got a clever way to get around those things. I will instead just sue the prosecutor or the judge or the police officer for arresting me for a crime I didn't commit or for giving me an unfair trial. I'll win a lot of damages.” After all, if you were wrongfully imprisoned for years, presumably the appropriate damages would be very high. And then, they'll just let me out. Or, then once I win, I can use something called res judicata to make it easier to my habeas suit, etc. So, the Supreme Court said, in an opinion by Justice Scalia in Heck v. Humphrey, “You can't do that.”  

Dan: I was reading back through this one-- I hadn't looked at it in a long time. It also has a feel of something made up. [Will chuckles] It just says, “This civil rights statute, which is called Section 1983, just doesn't allow these kinds of claims.” But how the court gets there is a little fuzzy. It's like, “Well, there used to be these old actions for malicious prosecution, and this is like that, so we think that this is in here somewhere.”  

Will: Yeah. So, the correct formal way to handle this would be through the doctrines of what are called res judicata, which would say, “We already litigated this question once. Were you guilty?” And the answer was yes. We litigated the question, was your trial fair? And the answer was yes, otherwise we wouldn't be here. And the judgment in that case frequently, but not always, stops us from asking that question again.  

The court says in a footnote, “Well, it's complicated because you were convicted under state law, and so it would be state res judicata law that would control that would vary from state to state. We don't know what the answers would be, and that sounds boring and hard.” It's just like 1L civil procedure. I promise it's not that hard, but it's been a while, since the Justice took 1L civil procedure. So, they prefer to just have a rule that says no, regardless of the answer.  

Dan: Yeah. This is an opinion by the late Justice Scalia arch formalist. It has a feel of one of the less successfully formalist opinions of his tenure.  

Will: Well, so, what's better is there's a concurring opinion by Justice Thomas that just openly says, ”We're making this up,” that just says, “Look, this case is about the collision course between the habeas corpus statute and civil rights statute, but it's our fault that they're on a collision course, because we misinterpreted the habeas statute a long time ago and granted too much habeas.” [crosstalk]  

Dan: Which is this provision where after you've been convicted, after you're done with your appeals, you can still go back to court and say, “Hey, let me out of prison.” And people who are in state prison can still go to federal court sometimes to do that.  

Will: And we misinterpreted the civil rights statute a long time ago and said there are too many civil rights. And so, we get to fix having made this problem of interpreting the statutes too broadly. We get to fix the problem of having decide how to unbroden them.  

Dan: Okay. So, this rule is out there, and maybe there is a defense of some version of this rule. But I think what happens is this rule expands in the lower courts in the three decades since Humphrey, since Heck v. Humphrey. The case, I think, originally is about when you can get money-  

Will: Yes.  

Dan: -and then it seems to expand to extend to other kinds of suits.  

Will: Yeah. In a way, the doctrine already existed also for other kinds of suits. There's an even earlier case called Prizer vs Rodriguez that was like, “So, I'm in prison, I want to get out. It's hard to get rid of habeas corpus. I've got an idea, why don't I get a writ of injunction instead and just ask for an injunction saying, ‘Let me out.’”  

Dan: That's just like an order from the court. Yeah.  

Will: And of course, the court said, “Well, you can't do that. You can't just call it something else and get around the rules.” So, the intuition that sometimes you shouldn't be able to just do an end run around the limitations we have on getting second guessing a criminal trial is old. But it's true that then courts just casually repeat various phrases from these cases without limitations that they contain, and they become much broader rules than they were.  

Dan: Yeah. Okay, so, let's walk through what actually happened here. This case is about a street preacher named Gabriel Olivier in Brandon, Missouri. The city opened an amphitheater, and this guy went to set up with a group. He's part of some religious organization, and he got a loudspeaker. As people were going into the amphitheater, he would shout stuff like, "Whores, Jezebels." 

Really not ideal conduct, and a little bit distracting to people who were just trying to go see concerts. And so, the city said, “We don't like this.” They passed an ordinance saying, “Here's the protest area. We can have some people protesting, but you got to be a couple hundred feet away.”  

He goes back to a Lee Bryce concert and does his thing again, does the Jezebel shouting, and received a fine of $304, got a suspended sentence of 10 days imprisonment and a year of probation. He pays the fine, he does an appeal. Then later, he goes and sues the city and the chief of police under the civil rights statute and says, “I want an order that this law is unconstitutional, that it can't be applied in the future. It violates my First Amendment rights.”  

And the lower courts both said, “No, this is barred by the Heck v. Humphrey rule,” we were just talking about. Including the Fifth Circuit, the Fifth Circuit is one of the most conservative, maybe the most conservative Federal Circuit Court, Federal Appellate Court. But that court denied rehearing. So, that's when the full court considers whether to rehear the initial decision by very close nine to eight votes.  

We had dissents by two Supreme Court shortlisters, maybe the top two Supreme Court shortlisters at least as of a year or so ago. Maybe the standings have changed a little bit. But Judges Ho and Oldham, okay, both saying that, “We're interpreting this rule a little bit too broadly. Even if you were previously convicted, you should be allowed to go to court and say, ‘Look, you can't keep enforcing this statute against me.’”  

Will: Right. Although again, to be fair, he's already been convicted once. The normal rule of res judicata for lots of litigation is, if you had a beef with somebody once and lost and you decided it wasn't worth your time to appeal, then the next time it comes up, like, you don't get to re litigate it just because you care more now.  

Dan: And this is under your alternate theory.  

Will: I'm just saying that's the ordinary rule of res judicata.  

Dan: No. If you were putting the Heck v. Humphrey rule under that res judicata heading. Okay. And so, this actually implicated two unresolved questions. One is that we've just been talking about is, does this rule bar suits by someone who is just coming in and saying, “Hey, look, I know I was convicted before. That's not the problem. Please don't do this to me again.” And then, also, there's this other question about whether someone who was never in custody, so never in jail, never in prison, can bring a civil rights suit or whether those are also barred by the Heck rule.  

Will: So, this is one of my favorite circuit splits. It's like, there are like 10 circuits that have disagreed on this, maybe five to five. You would think that's the kind of dispute the Supreme Court would resolve. But no. The Supreme Court has a principle that if it has not gotten around to resolving a circuit split for a long time, it figures it's probably fine. It's so called stale. You just ignore it for a while. But it is a weird question, right?  

So, if the premise of Heck is you shouldn't engage in an end run around habeas, the proper way for challenging custody. Well, then what do you do if you say, “Well, look, what would have happened to Mr. Olivier if he tried to bring a habeas claim?” We'll get to footnote 2 in a second. But if he was never in custody when he tried to bring a habeas claim, they'd say, “Well, actually, you're already out. Mr., what do you want? Habeas isn't a way to get a refund on a fine. It's a way to get out of prison. If you're never in prison, you can't use it.” And so, there was at least a good argument that if you're in that category, if you never even were in custody, this bar shouldn't apply to you.  

Dan: Yeah. Now, the court is actually just does not going to resolve that question. It could have used this case to resolve that question, but just does not. But in footnote 2, which you just mentioned, there's this interesting wrinkle which the court says, “Everyone said he wasn't in custody, but actually formally we think he was in custody, so maybe he could have filed a habeas action of some kind.”  

Will: Wait. He was on probation, which counts as a form of custody. And so, yeah, during that year, he could have filed a habeas action, I think. But everybody seems to have ignored that, other than Justice Kagan, who's smartest person to get to this case, I guess. And so, we'll just pretend it's not true.  

Dan: Okay. So, the court seems to find this pretty easy 13-page opinion saying, “Yes, you can still bring these suits.” It does that in part by looking back to a case that's even before Heck called Willie v. Maynard, which has also got some fun facts. The New Jersey license plates either still do, or at least-- [crosstalk]  

Will: New Hampshire.  

Dan: Yes. New Hampshire license plates either still do or did for a long time have live free or die on them. Does anybody know if they still have those? I see some thumbs up. And some guy really didn't like that, so he kept covering it up with tape. I don't totally know what the objection is. It's like, “No, I'd rather live unfree.” [audience laughter] But it seems like, I prefer to live free.  

Will: He didn’t want to die. [laughs] I’m against that.  

Dan: Yeah. And so, he kept getting fined for covering it up, and then he wanted to sue and say like, “I should be allowed to not have that on my license plate.” And the court had allowed that suit to continue even though he had previously been fined. And so, the court looks back to that and says, “This is basically like that, and these things are okay.” 

I think one of the things that's particularly interesting, is the court very openly and honestly looks back at the language in Heck and Justice Scalia's language. And Justice Scalia, by the conservative majority, has been totally deified. Everything he says is perfect unless it was not conservative enough, and she says, “Well, with the benefit of hindsight, the sentence relied on in Heck swept a bit too broad.”  

That was basically Justice Scalia slipped a little bit there, even Homer nods. It's going to dial that back and say that broad way you're reading that prior decision can't be right. Because if you're taking it that seriously, it would even mean some other person could never go sue to get this statute struck down, because it might impugn the conviction of this guy.  

Will: I don't understand that claim at all. We just learned in Casa when the court struck down universal injunctions, that decisions are party specific. And the fact that person A wins against somebody doesn't necessarily mean that person B wins against somebody.  

Dan: I think that's a reasonable objection. I think that the court seems to be saying, ”Any decision that somehow by implication would suggest that an earlier conviction was unconstitutional would fall under the Broadway these courts have read the rule.” I do think you can draw a distinction there. But apparently, everyone found that a totally persuasive argument. It came up at oral argument, and it just seemed like it stumped everybody, so they worked.  

Will: Yeah, I guess you could say, “Now, look, [unintelligible 00:33:00], if you wanted the party specific principle, that was the principle of res judicata that Heck thought was not good enough. The whole point of Heck was to invent some new broad principle of preclusion that wasn't the party specific principle of res judicata.” So, whatever that made up principle-- Now we're just making up limitations on a made-up principle. I don't even know what kind of law that is.  

Dan: It's constitutional common law. One interesting wrinkle. The advocate who won at the Supreme Court was a lawyer from Gibson Dunn named Allyson Ho, who was married to Judge Ho in the Fifth Circuit, who dissented. So, she went to the Supreme Court and vindicated his dissent.  

Will: Are you allowed to do that?  

Dan: I don't think she represented this plaintiff before the Fifth Circuit, because I think that then her husband have to recuse.  

Will: If she had represented a plaintiff before, then he would have had to recuse-  

Dan: I think so. 

Will: -because now he would have a conflict of interest. But if you do it in the opposite order, so he rules in the case first and then she represents the plaintiff after, then it's okay.  

Dan: Not obviously a conflict. What if it went the other way, though?  

Will: Well, so, I would think there might be a waivable conflict for the plaintiff, because you could imagine that even though the judge would have sentenced in their favor, that then when Allyson Ho comes and says, “I want to represent you.” There's going to become some question of what positions to take in the Supreme Court. You could imagine that she would feel less comfortable in some advocates saying, “Oh, no, no, we don't agree with Judge Ho's reasoning. We agree with somebody else's.”  

Now, I know Allyson Ho a little bit. I actually think she'd be totally comfortable disagreeing with anything Judge Ho had said if it was incorrect. [audience laughter] But you could imagine like you'll just--  

Dan: I can relate to that.  

Will: -put that on the table for your client and say that, “Now, you should know, I did represent one of the judges below. But don't worry, it was the good judge.” But if you can do that, why not do that all the time? Actually, Judge Ho dissents all the time, why doesn't Allyson Ho-  

Dan: That could be-- 

Will: -cold call--  

Dan: -her cold call practice. 

Will: Yeah. Cold call everybody who got a Judge Ho dissental and say you want-- And then, also be good for his short list prospects, presumably. Like, the more of his dissents that get vindicated by the Supreme Court, the better he looks. I feel like there's a real industry you could get going here. [audience laughter]  

Dan: Yeah.  

Will: And then, every judge needs somebody like this. Like, every judge needs means a spouse who believes in their dissents as much as--  

Dan: It's a rare privilege, I guess. So, maybe that's an advantage that Judge Ho has in the horse race for the next Supreme Court vacancy.  

Will: His other advantage is that he's a University of Chicago alum, and so he's obviously the best judge for the vacancy.  

Dan: Well, we will find out if there's a vacancy this summer that a lot of people are predicting. But the court does like to surprise us. The Justices don't always retire on the schedule that people want them to retire on. We don't have a lot of time.  

Will: I have one other brief-- [crosstalk] 

Dan: Okay. One other thing.  

Will: So, the position that the court ended up taking, ignore the big split on Heck and instead resolve it on this grounds, is the view that the Solicitor General's office argued. So, the United States came into the case and said, “You should rule for the plaintiffs on this ground, but don't go to the other ground. And if you did, disagree with the plaintiffs.” And interestingly, the lawyer for the Solicitor General's office was a woman named Ashley Robertson. He's a relatively junior lawyer in the SG’s office who's had three arguments and who's about to become the new defender general person.  

Dan: Mm-hmm. Yeah, that's the whole thing we should talk about. I don't think we have time on this episode, but the judiciary just did create this new office that is going to help represent criminal defendants before the Supreme Court, where they're seen as an asymmetry in litigation expertise. Has a lot of resemblances to a proposal I and Will Ortman put forward a few years ago, although there was a news article about it where they were insisting it was not the same thing, which was a little strange. But we will do a whole half episode on that.  

Will: Okay.  

Dan: All right. Well, we have a tight schedule, so I think you're going to need to lead us out, Will.  

Will: All right. Thanks for listening. Thanks to WashU for sponsoring this podcast, and thanks to you all for coming to hear us.  

Dan: And please, if you have your podcast apps, please subscribe, rate and review. If there's a long delay between this and our next episode, it'll be because Will got a trouble with his dean at UChicago for helping persuade all of you to come to WashU. [audience laughter]  

Will: Take a magnet. They had a lot of trouble to get here. [audience laughter]  

[applause]  

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