Knife in the Back

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

[00:00:27] [Will Baude] And I'm Will Baude. So, Dan, it hasn't been quite as long as it has since our last episode, but I can't say we're going at a really fast clip here. What's your excuse?

[00:00:36] [Dan] I don't think, and I'm not sure we're going to anytime soon. What's my excuse? I've got so many excuses. Teaching, and still have this baby. Baby's still a baby. Still doing baby stuff. And then Danielle and I have another important collaboration, second big collaboration, 2022 other than the baby, which is we wrote an article that we were just finishing desperately and it combined some of our favorite things. On her side, it combines interest in common law, private law, property doctrine. On my side, it's two of my favorite things, the Fourth Amendment and saying that you, Will, are wrong.

[00:01:12] [Will] Really?

[00:01:13] [Dan] Yeah, I'm not sure which of those I like more.

[00:01:15] [Will] What am I wrong about now?

[00:01:16] [Dan] Well, I mean, many things, but in this particular instance, so for listeners who are not deep into theory of the Fourth Amendment, Will, and friend of the show, James Stern. James Stern, who clerked for the same judge and justice I did, right after me. Good friend. You wrote this article, gosh, what is it, 4 years ago now?

[00:01:36] [Will] 6, maybe? 6, I think.

[00:01:37] [Dan] Okay, wait, going back. The positive law model of the Fourth Amendment, where, and correct me if I'm wrong, but your claim is the kind of test for whether government conduct implicates the Fourth Amendment should be dictated by whether the police have done something that would not be permitted by a private person under the positive law of the relevant jurisdiction where the government conduct occurs.

[00:02:01] [Will] Exactly. Like, breaking into your house is the easy case that everybody knows is a search or a seizure. And then we try to generalize that to breaking all other laws.

[00:02:09] [Dan] Not just laws, like administrative—like everything, right? Any source of law, like things about trash, rules about trash pickup, right? Whether other people can go pick up trash or whether only the municipal trash collector is allowed to have a monopoly.

[00:02:24] [Will] So we have some footnotes. We have to deal with some of the obvious weird extensions, like if the police officer speeds in order to get a good look at the driver before pulling them over or in order to pull them over, does that count? But yes.

[00:02:38] [Dan] I forget what the answer is.

[00:02:39] [Will] I think we stuck a proximate cause test in there. So it depends a little bit on the nature of the speeding and its connection to the arrest, I think is what we said. I can go back and reread it.

[00:02:49] [Dan] Yeah, I don't know where you pulled that one out of. The language of the Fourth Amendment. So this is the idea is, you guys almost nailed it. It's a really clever idea. It's a great article, one of my favorite articles in recent years.

[00:03:02] [Will] Well, this is good. You can just stop there. You can just submit that.

[00:03:05] [Dan] I'm never gonna stop there about anything. There's lots of things you do, Will, that I like, but I'm gonna always give you the but. But I think, as a theory, I think there are parts of it that are hard to justify. Your theory is whether something is a search, literally whether something counts as a search under the Fourth Amendment, turns on this question of positive law. And our theory, and you'll see why this combines our two interests, and Danielle, she has no particular interest in saying that you're wrong. She's totally fine with you.

[00:03:35] [Will] I've always liked Danielle.

[00:03:36] [Dan] That's me. Yeah, she's fine with me saying, wanting to say that you're wrong. So she's obviously on board with it. But our claim is, look, you're trying to make sense of the Fourth Amendment. Fourth Amendment says, bans unreasonable searches and seizures. What does unreasonable mean? Let's actually focus on that word. And well, there's a lot of reason to think that founding generation would've thought reason is kind of tied up with the common law. And there's also reason to think that at the time, they would've thought the common law is not—it's not just kind of the positive law of any jurisdiction. The common law is like what we call, what some legal scholars have called, like the general law. Something that you can kind of—it's law that's not under the control of any one sovereign.

[00:04:18] [Dan] It's kind of this set of principles. You look at different jurisdictions and there's sort of some core there. And our claim is that is actually what courts should be doing. And that you, Will, are coming at this with a post-Erie, right? Erie understanding, which is a 20th century case that says, look, there is no common law, the common law. There's just like laws of particular jurisdictions. And so In addition to having lots of benefits and actually being more consistent with, I think, what the Court has done when they've kind of looked to the law. There's cases where Justice Scalia says, "Look, let's not look to reasonable expectations of privacy. Let's look to trespass," and things like that.

[00:05:01] [Dan] But he's not looking to trespass of Florida trespass laws. He's not looking at specific positive law. He's sort of looking at these more general concepts. But so more consistent. Pragmatic benefits. But maybe, I'm not an originalist, but maybe actually I can come cutting back on your originalist bona fides. Mr. Originalist here, maybe you're not an originalist when it comes to Fourth Amendment theory.

[00:05:22] [Will] Yeah, are you trying to out-originalist me? Like, you're saying that I'm too 20th century, I'm not sufficiently 19th, 18th century, and you're saying I'm not textualist enough? So it's like, Will is wrong, 'cause he's not sticking close enough to the text.

[00:05:34] [Dan] Yeah, this is what makes it so delightful, is that—I'm kind of, I'm knifing you in the back where you least expect it. You're expecting me to come in, oh, like the living Constitution, let's be mushy and Katz and reasonable expectations of privacy and I'm coming around. It's not just because I want to say you're wrong. I just think it makes a ton of sense.

[00:05:52] [Will] I mean, look, this is obviously the best way to be knifed in the back by you for not being originalist enough. If that's how I have to go down, you know, I'll live with that.

[00:06:02] [Dan] You're not going to go down. This is the nice thing about our profession is it's actually great to be criticized. It's way better to be criticized than to be ignored, right? That's the fear, is you just send things out into the void and everyone says, okay, you know, whatever. And so conversation will continue, and I'm sure that you will, perhaps on this podcast, tell me why I have gotten it wrong. But anyways, article, Fourth Amendment and General Law. We will be making it available online at some point, sending it out to journals. And so that was fun. And now I have a little bit more time. Hmm?

[00:06:35] [Will] I think it hasn't been picked up by a journal yet. It's looking for a home.

[00:06:39] [Dan] It is looking for a home.

[00:06:40] [Will] Well, maybe I'll have to write one of those online responses.

[00:06:43] [Dan] Whoever picks it up. Okay. That's a deal. It's an enforceable contract. You also have a piece that you just placed. It's severability. Am I remembering right? Tell us about that.

[00:06:54] [Will] Severability First Principles. So far as I—I don't know. Do you have views about severability, Dan? Can I say you're wrong too or do I just have to?

[00:07:00] [Dan] I probably have some instincts that—so once you describe it, I will tell you whether they line up with my instincts, but I have not—written those down and don't particularly expect to because it seems like an interesting enough topic, but not one that's at the top of my research agenda. Although maybe you will say something that I think is so wrong that I can write a response. I'll say, "Look, I've never written anything about severability. I don't teach fed courts, but Baude is so wrong, I'm going to have to enter the fray." So lay it on me.

[00:07:27] [Will] All right. So everybody is wrong other than Justice Thomas and maybe John Harrison and Kevin Walsh.

[00:07:32] [Dan] Okay. So this is kind of predictable from you.

[00:07:37] [Will] Even Justice Gorsuch might be wrong. That pains me to write. That's the hardest part of the article to write. So the basic problem of severability is—

[00:07:45] [Dan] Wait, wait, wait, wait, wait. Where is he on your hierarchy of favorite Justices, if you're willing to say?

[00:07:50] [Will] Where is Justice Gorsuch?

[00:07:51] [Dan] Yeah. Number 2, number 1, number 3?

[00:07:54] [Will] Tied for number 1.

[00:07:55] [Dan] How many are tied for number 1? 3 or 4? 4?

[00:07:58] [Will] 6? 5?

[00:08:02] [Dan] Okay, yeah, 5 maybe, because you can't really bump the Chief. I was going to think that the 4 self-described originalists would be tied for 1.

[00:08:11] [Will] I think there are more than 4 self-described originalists.

[00:08:14] [Dan] So has the Chief said he's an originalist?

[00:08:16] [Will] No.

[00:08:17] [Dan] Has Alito said he's an originalist?

[00:08:19] [Will] Yes.

[00:08:19] [Dan] In McDonald? I mean, because he also makes fun of originalism.

[00:08:23] [Will] He just made fun of the original intent style of originalism, where we'd have to ask what James Madison would have said about video games, which has been wildly overplayed.

[00:08:31] [Dan] But he also—I was thinking Fourth Amendment, he also makes fun of this idea of the tiny constable. Yeah, the tiny constable, for the GPS case, about GPS tracking. He says it's ridiculous to look back to 18th century tort law. We should kind of do the mushy reasonable expectations of privacy inquiry.

[00:08:48] [Will] Justice Alito said in several interviews that he's an originalist. I think there's some questions about where he is with precedent and there are some labels people have applied, like Burkean originalist or things like that. But he said he's an originalist.

[00:08:59] [Dan] Do you think that's accurate? I know we're just kind of—this is just getting very discursive, but it's a fun conversation. So I mean, I think that seems like maybe a less apt label for him compared to some of the others, certainly than Thomas, Gorsuch, and maybe Barrett.

[00:09:14] [Will] I mean, I think a conventional view that puts Thomas and Gorsuch as the most originalist, Barrett and Kavanaugh as slightly less originalist, although definitely self-described originalists, and then people like Alito and Kagan and the Chief kind of trailing them. Sotomayor on like another plane.

[00:09:28] [Dan] Yeah, I mean, because like, yeah, Kagan has endorsed textualism, right?

[00:09:32] [Will] And originalism.

[00:09:33] [Dan] Yeah. She specifically endorsed originalism.

[00:09:36] [Will] At her confirmation hearing, she specifically endorsed the view that in deciding what level of generality we should interpret the text at, we should ask what level of generality the Framers wrote it at. What they intended it to be.

[00:09:48] [Dan] Intent? She's an original intent person?

[00:09:50] [Will] She didn't say intent exactly. It's just what they commanded. She's an original meaning person, probably.

[00:09:54] [Dan] Yeah, this is an interesting thing for the Justices, again, just going on tangents for listeners who are maybe not deep into originalism, which is when you say originalism, there's different things you could mean by that. You could mean the kind of early version was, let's look at what the Founders thought. Let's find out, read their secret diary and figure out what they thought. And I think almost everybody doesn't, on the originalist side, even thinks that's wrong now. Is that fair?

[00:10:18] [Will] Almost everybody, yeah.

[00:10:19] [Dan] Yeah, almost everybody. And then there's kind of original meaning. What did this mean? To people ratifying it at the time seems more defensible. You have this original law, you look at how lawyers, how this would've been understood to change the law, right?

[00:10:35] [Will] Yeah. And what legal doctrines would've been used to interpret it at the time.

[00:10:39] [Dan] Yeah.

[Will] So I think it's actually a mistake to put all the Justices we just named on one hierarchy, because I think there are just some cross-cutting issues. Like, Justice Thomas and Justice Gorsuch are less bound by, believe less in precedent than anybody else. So they bring their originalism out and use it to overrule cases more often than others.

[00:10:56] [Dan] But, Barrett. Justice Barrett, we're not totally sure where she is on that, right?

[00:11:02] [Will] Not as much. I mean, she wrote something about precedent as a professor and she just descriptively has not yet sort of—

[00:11:07] [Dan] I mean, her scholarship I took before she got on the bench to mean that she was not going to be a big believer in stare decisis.

[00:11:14] [Will] Yeah, her scholarship's pretty nuanced. It has a lot of interesting—one interesting theme in the scholarship that she's picked up on the bench is of course that since the Court picks its own docket, a lot of the time stare decisis does its work just because the Court is never going to grant cert on whether to overturn the legal tender cases or whatever.

[00:11:30] [Dan] Yeah.

[Will] And that's, you know, she's done that in some of the shadow docket cases. Yeah. So let's just stay out of this. And then Justice Alito, I think part of what marks him is just he is very committed to not being a chump. So he just has a—which is actually just another theory of precedent in a way, is like he's very committed to the view that if like this doctrine doesn't apply for the goose, that it also doesn't apply for the gander and vice versa. And that's popped up in a lot of its sort of famously strange concurrences.

[00:11:56] [Dan] That comes up in Janus, right?

[00:11:59] [Will] It comes up in Janus.

[00:12:00] [Dan] Which is the—

[00:12:01] [Will] He has an original argument

[Dan] —Union dues case.

[00:12:03] [Will] Yeah, where Eugene Volokh and I actually tried to enter as the pro-union originalist.

[00:12:08] [Dan] Yeah, I liked that. I like you guys had a—

[00:12:10] [Will] Justice Alito did not like it. No, it didn't go anywhere. But one of his points was that the unions in the case were themselves against originalism in other cases. And so, you know—it's not really—

[00:12:22] [Dan] —it makes sense as a—

[00:12:23] [Will] It makes sense in a way. It's just a different question about judging. It's sort of like a game theory question or a question of unilateral disarmament, which I feel like we encounter a lot of the time back in our discussions about court reform. We have people who say, "Look, in a first best world, I'd be deferential to Congress, but if they're not going to be deferential, then I'm not going to be deferential." It's the same kind of thing.

[00:12:41] [Dan] It seems like, I would think you would believe that the judge should follow what their view of the law is, right?

[00:12:46] [Will] I mean, I do believe—

[00:12:47] [Dan] You don't say, "Well, I will come up with, because you're a liberal living constitutionalist, I will now be a conservative living constitutionalist." Or a common good theorist.

[00:13:02] [Will] I don't think you should be a common good theorist. And Justice Alito also in his unrecorded speech at Notre Dame declined to embrace common good constitutionalism, according to my sources.

[00:13:11] [Dan] Which is a topic of a new book by Adrian Vermeule, which I just got in my inbox, and I'm looking forward to reading. Maybe we will discuss that on a future episode. I imagine you have some views about that. But can we talk about your severability thing?

[00:13:26] [Will] Sure okay. So the question of severability is just when a law has some part that's unconstitutional, what do you do with the rest of it? And the conventional doctrine is that you ask, more or less you ask, what would Congress have wanted us to do if they had known that they had a part of their law be unconstitutional? Would they have wanted to keep all of it? Would they have wanted to get rid of all of it? Would they have wanted to do something slightly more complicated? But this doctrine does not—nobody's very happy with how this doctrine applies, just as a practical level. And then it's also, as a theoretical matter, it's asking a question that we pretty much have stopped asking in federal interpretation. Even the Justices who are not Justice Gorsuch agree that you're no longer supposed to ask questions like, "What would Congress have wanted if it had thought about a thing that we know they didn't think about?" That's just both conceptually not a very coherent inquiry and practically not something judges are good at. They just end up finding themselves there.

[00:14:20] [Dan] And also, the way the question was framed seems to presuppose a view about what courts are doing in constitutional adjudication when they're exercising judicial review—that is maybe not, my guess is, is not what you think that they should be doing, which is judges aren't going with a red pen and sort of striking out parts of laws, right? They're not just kind of taking stuff out of the U.S. Code. What they're doing is they're saying, in this case, this law purports to do this. That's not constitutional. And so we will not enforce that, or we will say that you have a remedy that this law can't be enforced against you or something like that, right? They're not excising statutes.

[00:15:00] [Will] That's exactly right. That's exactly right. So my article is basically, if you start from the two formalist premises that law is based on what Congress enacts, not just their hopes and dreams, and that what judges do is just try to apply the law in the cases before them, not wield what one scholar's called a writ of erasure to erase statutes in the books.

[00:15:23] [Dan] Which scholar?

[00:15:25] [Will] Jonathan Mitchell, you ever heard of him?

[00:15:26] [Dan] Ah, yeah, we've talked about this article before. This is the theoretical underpinnings of the Texas abortion law. So it sounded like this high academic theory actually has some very consequential, important consequences, real-world consequences. I think I agree with the second formalist principle, maybe less than the first one. Okay. Is that, I wanna think about that, but there might be situations where We might say, "What is the way to understand this law, how it should operate under these circumstances?" I don't know. It doesn't necessarily have to be an intent question.

[00:16:07] [Will] Yeah, and that's actually part of one of the surprising reveals of the article, I'll just say now, is that even formalists who think they reject congressional intent often find themselves unable to resist using it in a subset of cases. For instance, about a third of the article is about what happens when the constitutional problem is really an unconstitutional combination. Two different statutory provisions, either one of which alone would be okay, but together they're not okay. Because then the standard formalist instincts in a lot of these cases of just ignore the unconstitutional one doesn't work because it's like, which one do you ignore? And congressional intent, various more objectified forms of intent could be one way you decide. "Look, if we can't have both of these, which one is supposed to be enforceable? Which one's supposed to be unenforceable?"

[00:16:49] [Dan] Just so I have it in my head, what's a case where that happened? You have the conflict?

[00:16:54] [Will] Easy one is PCAOB versus the Free Enterprise Fund, the peekaboo.

[00:17:01] [Dan] So the for-cause, two layers of for-cause removal. Right.

[00:17:05] [Will] You can't have two layers of for-cause removal. So which layer do you have?

[00:17:08] [Dan] Yeah, that's interesting.

[00:17:10] [Will] Lots and lots of cases have this form. So a bunch of the Supreme Court's recent cases, like the removal cases about the CFPB, and then the second one about Fannie and Freddie are like this because on the one hand, the person is given a bunch of broad executive enforcement powers, and on the other hand, they're given for-cause removal protections. And everybody agrees you could have one of those but not the other. And so which one do you get rid of?

[00:17:32] [Dan] And so, do you have a way to figure that out?

[00:17:34] [Will] I have three. I mean, part of the—

[00:17:37] [Dan] Three different ones that I have to choose between?

[00:17:40] [Will] Yeah. The point is that—

[00:17:41] [Dan] You got to give us the answer.

[00:17:43] [Will] Well, the point is that you should figure it out through statutory interpretation. And this is obviously an area where you have to interpret the statute on a question where it doesn't actually say what to do. And so depending on exactly how textualist you are, just exactly what you said, how far you reject the kind of no-intent premise, there are different ways to solve it. If you're a kind of soft textualist, so you think generally we should focus on text, but intent can be useful on questions where the text is really very silent, then you might well use intent to to ask which one you should keep. For the Justices who aren't, which includes some of the Justices on the Court who are grappling with this problem, they instead have to make use of the canons and the substantive canons, which is what they do. That has all the standard problems with substantive canons. So the back half ends up being a kind of acid test for formalism. How does formalism handle hard questions?

[00:18:27] [Dan] So basically, it sounds like you're not totally able to solve some of the hard issues here, right? This is a problem that even thinking about it from the right, what you see as the right premises does not. Does not just make these problems go away.

[00:18:41] [Will] Yeah, it doesn't have one unique solution. The right way to put it is if any given Justice called me and said, "How do I resolve an unconstitutional combinations problem?" I could tell them, given their own methodology, how they should resolve the unconstitutional combinations problem, but I don't adjudicate between whether Justice Gorsuch or Justice Kavanaugh is a better Justice.

[00:18:59] [Dan] This is consistent with your insistence that you have 6 tied for 1, tied for first. Coward. It's not—I don't believe that's what you really think.

[00:19:09] [Will] I call them—

[00:19:09] [Dan] You just want them all to cite you.

[00:19:12] [Will] Not doing so well on that score. One of the consequences along the way is I talk about the California v. Texas, the Affordable Care Act case that we talked about. And Justice Gorsuch was wrong to think that the Affordable Care Act was inseverable. And although Justice Thomas and Justice Gorsuch—

[00:19:30] [Dan] As a matter of statutory interpretation?

[00:19:34] [Will] Exactly. Once you see that inseverability has to just be a question of statutory interpretation and look at the Affordable Care Act through the kind of lens of interpretation that Justice Gorsuch and Justice Thomas believe in, there's no evidence of any kind of inseverability.

[00:19:49] [Dan] Okay. Well, I will look forward to reading that. That is forthcoming, right? Virginia Law Review?

[00:19:55] [Will] Virginia Law Review.

[00:19:56] [Dan] But is not on SSRN yet, correct?

[00:19:59] [Will] That's right. It'll go up pretty soon. I'm just kind of—I presented it at a conference in San Diego about a week and a half ago, and I'm trying to input all the—

[00:20:07] [Dan] This is the originalism, the home of originalism, right? The San Diego conference.

[00:20:12] [Will] Indeed.

[00:20:14] [Dan] In David Pozen's parody of Larry Solum's originalism articles, he did an April Fools' parody. Larry Solum used to do these really, really funny April Fools' parodies of other academics. David Pozen said the sanction for not being originalist enough is exile from San Diego, right?

[00:20:35] [Will] Yeah. And I mean, on the one hand, I will say you don't have to be an originalist to go. Eric Segall, a trenchant critic of originalism, was there all weekend and letting us have it and blogged afterwards about what an amazing experience it was and how grateful he is for the kind of free exchange we have. But it is still true that if it didn't happen at San Diego, Did it really happen in originalism?

[00:20:58] [Dan] Well, we all have our own ideas of what counts as a good time. Listeners, you make your own judgment as to whether that one, that weekend in San Diego, sounds like what you'd want to spend your free time doing. But more power to you, Will. Okay. Well, we'll look for that one. I will look forward to sharing my piece once ready to. Friend of the show, Orin Kerr, I'm sure is going to have views, but Oren I'm waiting to send it to you until we do one more round of revisions on that. So anything else? We're just kind of trying to fill things out, 'cause we actually don't have that much, unlike the last time, we actually don't have, there's some things that have happened, but not necessarily as many things that we have lots of things to say about.

[00:21:41] [Dan] That's right, that's right. Okay, big thing that happened. Hmm. Oh. Yeah.

[00:21:48] [Will] Oh. Yeah. Justice Breyer wrote an opinion.

[00:21:50] [Dan] Ah, yeah. That's the one everyone was waiting for.

[00:21:53] [Will] Is that the one you were thinking of?

[00:20:54] [Dan] Definitely. What was this about?

[00:21:55] [Will] So Justice Breyer, the Supreme Court issued one opinion last week, a case called Unicolors, Inc. v. H&M, which is an intellectual property case, sort of. It's a case about basically the definition of intent in the copyright statute. It's an opinion by Justice Breyer. So as soon as I read it, I thought, aha, this is his swan song. He's finally going to show Dan that he's really a writer for the ages. The question is, when you obtain a registration for your copyright and you put some claims, some information in your registration that is inaccurate, when does that impair the validity of your registration? And in particular, if you make a mistake of law, that is, if you say something about previously valid copyrights that you're wrong about because it's not some factual mistake. It's not that you didn't know that something was out there, but of some legal mistake. You didn't know whether they were valid or whether there was some sort of defense, does it count? The question is, when does that invalidate your registration?

[00:22:58] [Dan] And so walk me through why it should invalidate your registration, because the Copyright Office relies on it in some way and—

[00:23:05] [Will] Yeah, and can you have an incentive to get your story straight? Let me just give you, because this is Justice Breyer, Part 2, the substantive part of his opinion, has the perfect Breyeresque introduction. A brief analogy may help explain the issue we must decide. Suppose that John, seeing a flash of red in a tree, says, "There is a cardinal." But he is wrong. The bird is not a cardinal. It is a scarlet tanager. John's statement is inaccurate. But what kind of mistake has John made? John may have failed to see the bird's black wings. In that case, he's made a mistake about the brute facts. Or John may have seen the bird perfectly well, noting all of its relevant features, but not being much of a bird watcher, he may not have known that a tanager, unlike a cardinal, has black wings. In that case, he's made a labeling mistake. He saw the bird correctly, but does not know how to label what he saw. Here, Unicolor's mistake is a mistake of labeling. And they go on. So the question is, that's the case.

[00:24:06] [Dan] I'm struggling to see how that analogy helps.

[00:24:11] [Will] That analogy just sets up the problem. And the problem is basically, do we expect people who register for copyrights to be ornithologists?

[00:24:18] [Dan] Where ornithologist is defined as being a lawyer, making legal conclusions.

[00:24:25] [Will] Yeah, not a lawyer. So mostly I liked it for the analogy. The answer, by the way, is no, you don't have to be an ornithologist. So if you make a mistake of law. Okay.

[00:24:33] [Dan] And the analogy is like you get kicked out of the birdwatching club for the first mistake, but not the second, right? Sorry, I'm having trouble seeing how it tracks, but maybe it doesn't. I always like to dig deep on analogies to see how far they go, and this one sounds like maybe it doesn't take us—it just gets us through the door, but doesn't take us further.

[00:24:52] [Will] Yeah, don't do that. Here's the other reason I wanted to mention it, other than because I know you love Justice Breyer's opinions. Is there's a dissent by Justice Thomas, Justice Alito, and Justice Gorsuch as to all but Part II. The dissent, at least the part that Justice Gorsuch joins, the bulk of the dissent doesn't actually disagree with the majority. Their main argument is not the majority is wrong about the definition of knowledge, you know, what the knowledge requires, what it requires. Their complaint is that the Court was the victim of a bait and switch. Hmm. That the original petition for cert asked the Court to grant cert on a question which there was a circuit split, whether or not the copyright statute's knowledge element requires, quote unquote, "indicia of fraud." And yet, after having persuaded us to grant certiorari on this issue, Unicolors has chosen to rely on a different argument in its merits briefing. It no longer argues that the statute requires fraudulent intent and instead proposes a novel actual knowledge standard. Because I would not reward Unicolors for its legerdemain, and because no other court had before today ever addressed whether the statute requires actual knowledge, I would dismiss the writ of certiorari as improvidently granted.

[00:26:00] [Dan] Okay, this is interesting in a couple ways. I mean, so one is trying to figure out exactly what the difference is between those two things. So basically, one option is, did you actually intend to deceive versus did you know that what you were saying is inaccurate? There is a difference. I like this case because it seems to be playing with actually some criminal law concepts. Yes. Then in Part 2 of Justice Thomas' opinion, he's actually citing a case that I taught last week in criminal law about mistake of law, Cheek v. United States, which is in the context of criminal tax enforcement where we say there's a duty—sorry, when we say that you can't be punished for criminal tax evasion unless you knew that you were violating the tax laws. Very unusual. It's not how these things usually work, but they're doing something similar, I guess, on the copyright side. But it raises this other question of like, when—how much flexibility do you have as a litigant in the Supreme Court to kind of shift your position? Because you can obviously make arguments that you didn't make in the petition. You know, whenever you write a merits brief, like, people come up with they spend, you know, a couple months working on these, they come up with really clever arguments that maybe weren't apparent when they wrote the shorter cert petition. But when does that switch slide into actually just arguing for a position that you didn't get the Court to grant cert on?

[00:27:28] [Will] Yeah, exactly. And especially because—I mean, exactly right. On the one hand, we want litigants, people to bring their best arguments to the Court, because once the Court decides the case, it's going to make nationwide precedent. And we're never going to look back and say, well, that case wasn't very, you know, very well, so it doesn't really hold that or something. You know, we just, we need to get it right. But there is this obvious sort of chance of gamesmanship, right, is that to get the Court to grant cert, to get the, you know, the cert pool clerk to pull it out of the stack, you need to show them this is something that a lot of circuit courts have disagreed about. It's going to show a split. But that may not be the best argument to win. Right, so I assume what happened is they had a sort of acknowledged circuit split, was their ticket into the Court, but then once they started thinking about what arguments are actually going to convince the Court to interpret the statute our way, they had this different argument.

[00:28:19] [Dan] Yeah, that doesn't strike me as necessarily bad, because if it turns out that—sometimes it turns out that the circuit courts have kind of seen an issue along one axis, and then the best way to interpret it is maybe something in the middle, or something that kind of looks at some slightly different factor. But the one thing Justice Thomas notes, which maybe is worth caring about, is that this is not something that other courts, lower courts, have had a chance to really opine on. Right. Right? He says that the Court does this without permitting any other court in the country to first consider the question. So basically, the Court likes to kind of let legal issues percolate, see what lower court judges see how the arguments develop so they can really be sure they're resolving a question with all the appropriate information.

[00:29:12] [Will] Right. Because you can imagine, I mean, this does sometimes happen, right? The clever person arguing the case is like, "Hey, I have a crazy new theory about how to interpret the statute that nobody's ever come up with before. I bet I can sell this to them." And on its face, it's pretty plausible. But then once you learn as a Justice that nobody's ever considered this before, and you only have a few months to think about it, and all its implications, you're like, "Well, I'd kind of like it if this had been put to the..." Somebody kick the tires on this for a little while just so we could flush out the problems I'm not thinking about.

[00:29:41] [Dan] The Katz test, the reasonable expectations of privacy test, which comes from, actually, from a concurring opinion by Justice Harlan in Katz, that wasn't even presented in the briefs. That was just something the advocate just kind of threw out there at oral argument. Yeah. And that has defined--been the test for, key test for Fourth Amendment law for the last 55 years. So is that bad? Is that good? I don't know.

[00:30:05] [Will] Well, I mean, my sense is this used to be more common than it is. And this is part of the other thing. It's like, of course, sometimes the reason the Court accepts these pivots is because they don't know the answer, or they don't like answering the question presented very much. But this other way of answering it allows them to build a consensus or get a majority, or it makes more sense to them.

[00:30:26] [Dan] Yeah. I mean, I'm not totally—I think you're deeper into this one than I am, so I want to see what you think. But I guess just thinking about it in the abstract, it seems like this isn't clearly something that's totally out of left field. I mean, you're arguing about what the—this is not criminal law, but what we call the mens rea is, what the mental state requirement is here. Sometimes maybe it's fraudulent intent, or maybe it isn't, but maybe there's something in the middle. Is this that different, or is this somehow orthogonal to those questions?

[00:30:59] [Will] I guess I think anything on the spectrum of how much you're swapping in the QP, this is not the most egregious version the Court has seen. And in some of the more egregious versions that Justice Thomas mentions, the Court has dismissed the cases as improvidently granted. But it does seem, I mean, as I understand it, it does seem a little bit like a pivot or a swap from sort of what you might have thought was there to what you have now. And I think that in the past, the Court had shown at least a little bit of interest in actually trying to deter that kind of conduct by dismissing the cases improvidently granted. I mean, another thing that happens in several of these cases, I think it happened here, is that the lawyer who petitioned for cert is not the same as the lawyer who took over the case for the merits brief. And that's obviously the—again, part of the reason you have a new Supreme Court expert take over the merits briefing is they might be able to frame the case in a different way that's more helpful.

[00:31:51] [Dan] Yeah. But it puts lawyers in a tough position, which is like you might think, gosh, I don't want to argue this original position because I just really looked at the law. There's just no way we can win on that, right? Maybe it's a weak argument. But you also know that if you make the argument that's more persuasive, you're now increasing the risk that the case petition gets dismissed. Here, unclear whether this was a conscious gamble or just they thought it was going to be fine. But here, that seems to pay off. Right?

[00:32:21] [Will] And I think the truth is that's probably what you want if you're the Court, is you don't want a rule, you want a standard. Because sometimes, again, sometimes the Court will do a better job with the case if it reframes it, but you don't want this happening all the time, because then you lose control of your own docket and you're constantly answering these novel questions. So you want to refuse these invitations often enough that people know it's a gamble. They don't just think, "Oh, we have total freedom to make this case about anything we want to."

[00:32:46] [Dan] Yeah. But there does seem like a difference between making an argument that the lower court is wrong on its statutory interpretation versus introducing a totally new legal issue. It's like if they were like, "Yes, courts didn't address this, but this is actually a due process violation." I mean, that seems more troubling than the Court saying, "Well, here's a different way to read the statute," or an advocate saying, "Here's a different way to read the statute."

[00:33:10] [Will] Yeah, although even, I mean, so think of the abortion case, Dobbs, right? The Court granted, not on a question that was explicitly, "Should Roe v. Wade be overruled?" And then when it got to the Court, it turned into, "Should Roe v. Wade be overruled?" They were on the same topic. It was like abortion constitutionality arguments, but—

[00:33:28] [Dan] Yeah. But you might think in that situation, look, the Court could say, "Look, there's no way for us to decide this legal issue without resolving this antecedent issue" or something like that. And certainly the Court has more flexibility to address issues that are not presented by the advocates than the advocates do, right? The Court can kind of, as long as it's supported by the record, they can.

[00:33:55] [Will] Right. But then if the Court's going to do it, we kind of want the advocates to be able to talk to them about it. And similarly, you could imagine getting a statutory interpretation question and saying, well, it's just hard to think about this statute without acknowledging that the whole thing is unconstitutional. Or vice versa, a constitutional question where you say, "Well, it's harder to really understand this constitutional challenge because people are kind of confused what the statute does." So you can see how you end up toggling across those kinds of things.

[00:34:18] [Dan] Yeah. And if the Court comes out with something that nobody realized that they were thinking about, that increases some risk of error, right? Because the parties can maybe point to, "Look, if you interpret the statute this way, that has all these bad consequences you're not thinking of." So I don't know. I'm not sure there's an easy answer here, but the Court seems to conclude that this was okay. Majority does. And why do you think Justice Gorsuch doesn't join Part 2 of Justice Thomas's opinion, where he sort of says a couple things? He says, you know, the thing I noted about how no other court in the country has addressed this specific argument, but also sort of says this test that they're using is is kind of really kind of out of left field. This actual knowledge requirement is something that's out of left field and something that is not really—sort of throwing cold water on the actual substantive legal issue.

[00:35:14] [Will] Right. I mean, so it could just be he doesn't have a view. My guess is he's sympathetic to the majority on the merits, and that Justice Gorsuch often does have a kind of different approach in a lot of criminal cases than Justice Thomas and Justice Alito might. So he might see it as less anomalous. To have a kind of more generous mens rea requirement, but he still cares about the bait and switch principle.

[00:35:36] [Dan] Yeah. Why do we think this kind of seems to have an ideological slant? Because I think, is it fair to say Justices Alito, Thomas, Gorsuch are the three most conservative justices? Do you think that's fair?

[00:35:47] [Will] People say that. I'm not gonna—

[00:35:51] [Dan] Oh, come on, Will. You're not gonna say anything.

[00:35:54] [Will] I mean, you know, Justice Gorsuch has Bostock and McGirt, and it's—

[00:36:00] [Dan] Okay, but on balance, on balance, but this does seem to—and then you have—some people have said like there's these three kind of, you know, there's the Justices, Chief Justice Roberts and Justices Kavanaugh and Barrett, kind of in the middle of the Court, kind of controlling the axis of power, and then the three liberals, and then the three more conservatives. And it does seem to break down on those lines. I couldn't really figure out Why?

[00:36:22] [Will] Me neither. So yeah, I couldn't figure that out. And I couldn't figure out if that's because of sort of criminal law presumptions, if there's a sort of ideological slant to copyright registration that, I mean, I assume there is because there is to everything that I don't totally get. Or whether it's specific skepticism of this kind of layering tactic.

[00:36:42] [Dan] They didn't tell you at San Diego. They didn't say, "This is why. This is the secret reason why."

[00:36:49] [Will] This case was not discussed at San Diego.

[00:36:52] [Dan] Oh, okay. Well, if the Federalist Society sends you a coded message telling you what the right answer was in this case and why, please share it with us.

[00:37:01] [Will] I'll read it on the air.

[00:37:04] [Dan] No, you won't. You'll deny any knowledge of it. We should talk about that sometime, by the way. Doing a Federalist Society event, by the way.

[00:37:15] [Will] Good for you.

[00:37:16] [Dan] And this week, I'm talking about originalism, attacking you from the right, doing a Federalist Society event. But as the lib.

[00:37:25] [Will] Yeah. Who's the con?

[00:37:26] [Dan] Several folks, but I am kind of paired up with my friend Ethan Davis, former clerk for Justice Gorsuch and my former associate when we were both at King & Spalding. We worked on a Supreme Court case together. Criminal case, Ocasio v. United States. And we are talking about something that is, I think, is going to be our next topic. We are talking about the new Supreme Court nominee and how she might affect the Court on criminal justice issues. So me and my former criminal law co-counsel, I'm talking about that. Unfortunately, I don't know yet. I'm going to do some research on that in the next couple days. So I don't know. I can't give you a preview of my views. I think the short answer is probably not. Not that much because, and in general, this nomination is probably not gonna change the Court all that much 'cause it doesn't change the balance of power.

[00:38:19] [Will] Maybe.

[00:38:20] [Dan] But Justice Breyer was more kind of pragmatic on some criminal law, criminal procedure issues.

[00:38:25] [Will] Right. Yeah, so should we talk about the new nominee?

[00:38:28] [Dan] Yes, so we do have a new nominee, D.C. Circuit Judge, recent D.C. Circuit Judge, Ketanji Brown Jackson, who I think it's safe to say was the front-runner for most of the process. Heading in. I mean, there were sort of 3 that people thought it might be. Judge Michelle Childs, California Supreme Court Justice Leondra Kruger, and Judge Brown Jackson. I think David Lat, who watches these things very carefully, had Judge Brown Jackson as the front-runner for some time, and, uh, that is what happens. Uh, seems like a very—the logical choice for President Biden. He had pledged to nominate the first Black woman in the Supreme Court. She was recently confirmed, uh, got on the D.C. Circuit. And so you've got a lot of confidence that, that she's not going to have issues at the confirmation hearing. Now, the confirmation—Supreme Court confirmation hearings, they're going to dig a little deeper than they do at D.C. Circuit. But that's at least some vetting, more vetting than you have from Justice Kruger, who has not been through a Senate confirmation.

[00:39:39] [Will] Right. And she picked up some Republican votes too, right? When she was confirmed.

[00:39:43] [Dan] Which? Oh, yeah, yes. And she's kind of the right age. She has a very impressive resume, former clerk for Justice Breyer. So we have this kind of passing of the gauntlet from Justice to former clerk, which we had with Justice Kennedy, which I don't find a—I feel a little uncomfortable about. Seems kind of like this hereditary position at this point, but that's where we are.

[00:40:10] [Will] I predict this is gonna become a thing, that if it's the same, if it's not a party switch, so obviously, Justice Ginsburg was not replaced with a Ginsburg clerk. There are not very many conservative Ginsburg clerks out there. But I predict this is gonna become kind of the new default.

[00:40:24] [Dan] Really?

[00:40:25] [Will] Yeah. I mean, I'm not saying it should be.

[00:40:26] [Dan] Why the default? Why would we, if Justice Kagan retires, why would we limit ourselves to only Justice Kagan clerks versus like Justice Sotomayor clerks or people, maybe there's people who didn't clerk on the Supreme Court who are pretty good lawyers.

[00:40:39] [Will] Yeah, I'm not saying. So there were news accounts that the Breyer thing really mattered to President Biden, that like he really liked that. I think one thing that happens is the President, you know, President will naturally be praising the departing Justice as like a great Justice and will likely be saying, "I want to appoint a Justice in this person's mold." And so then a natural—that's just like a natural way to do it. You got to limit the search somehow. It is more and more common for the nominee to be a Supreme Court clerk. Relatively, an overwhelming majority of the recent nominations have been Supreme Court clerks.

[00:41:12] [Dan] Yeah, there is very much a sameness to the resumes of the people that get nominated. These days. Elite law school, Supreme Court clerk. Now, one difference here, which is Judge Brown Jackson was a public defender, right? Exactly. That's something we're going to talk about on my panel about her views on criminal justice, and that's unusual, right? And that is a place where President Biden has emphasized in his judicial appointments, emphasized professional diversity, which I think is good, right? There's been a lot of former prosecutors who are on the bench. Far fewer public defenders.

[00:41:45] [Will] Yeah, I think that's great. Have you gotten your hands on her senior thesis yet?

[00:41:52] [Dan] No. Tell me. Tell me about it.

[00:41:54] [Will] I would like a copy, so if somebody has one. Her senior thesis in college was entitled "The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants." It sounds pretty good. Is this relevant? Yeah.

[00:42:06] [Dan] It sounds pretty good. Okay. I'm going to have to acquire that in the next day or two.

[00:42:10] [Will] For readers who don't know, obviously, the plea bargaining process is the lifeblood of the criminal justice system, where we get everybody to give up all their constitutional rights and just accept a punishment because we would threaten them with greater punishment if they tried to actually exercise their constitutional rights.

[00:42:24] [Dan] Which I taught in criminal procedure adjudication today. I taught—

[00:42:28] [Will] Well, you should—

[00:42:29] [Dan] yeah. Bordenkircher v. Hayes. Remember this one, Will? This is where—

[00:42:32] [Will] This is where the Supreme Court said this is fine.

[00:42:34] [Dan] Yeah, and where the prosecutor says, charging a guy for writing a forged check, right? He says, "Look, you plead guilty, you get 5 years. If you don't, if you go to trial, I'm going to reindict you on a habitual offender statute and give you life in prison." It seems like that should be not okay, right?

[00:42:53] [Will] Right.

[00:42:54] [Dan] It's ok.

[00:42:55] [Will] It's fine.

[00:42:55] [Dan] Court says it's okay. So she thinks—maybe she thinks that's not okay.

[00:42:59] [Will] And again, on the positive law model, it's a kind of behavior that if it weren't done by the government, If somebody said, "Consent to this contract or I will lock you up for 75 years," I think most courts have a pretty easy time finding consent invalid.

[00:43:13] [Dan] That's how you got me on the show.

[00:43:16] [Will] Don't tell. If she's going to successfully get you out of this podcast, then I'm not in favor anymore.

[00:43:23] [Dan] No state action, unfortunately. So no federal jurisdiction.

[00:43:27] [Will] Yeah, good.

[00:43:28] [Dan] Yeah, although maybe you're so enmeshed with the conservative Justices that what you do counts as state action.

[00:43:35] [Will] That's a good one.

[00:43:38] [Dan] No riposte. Okay, I'm going to claim victory on that. So I guess I don't have a lot substantively to say right now, just because I have not dug into the record and read opinions and so forth. And I hope to do that in the coming days and have more to say. And we'll see what the hearings are going to look like. But this is not necessarily something that we should expect, like huge fireworks. We're going to have the normal the normal kind of political wrangling. The GOP Twitter account is trying to position her as a radical leftist. Probably in the end, we'll see a close to party line vote, but we'll see.

[00:44:19] [Will] I think very little interesting is going to happen. I guess that's the point. We don't really know. Who knows what will come out of the woodwork? But this is just going to be an example of the current setup where almost every Senator's vote is predictable in advance. So there's almost no incentive for anybody in the process to give and take at all.

[00:44:41] [Dan] And it's also an issue where political bases care a lot, right? And so a lot of what is happening is kind of posturing for political bases, 'cause there are these advocacy organizations, advocacy groups that stir people up. The Judicial—this is my favorite one on the right—one of the—changes its name from Judicial Confirmation Network when Republicans are in power to Judicial Crisis Network whenever Democrats are in power, which I just—I love how shameless it is. But they're going to get everybody riled up and try to get a bunch of donations about, you know, radical leftists. And, and so that causes a lot of pressure, I think, for senators to vote on party lines.

[00:45:16] [Will] Yeah, it's, it's a little weird. I mean, I think that you're right, descriptively it's a little weird. Like, what's the incentive? For the Republican senators who know she's gonna be confirmed and who think, surely some of them must think, that in the scheme of things she's pretty good of all the nominees they could have expected and feared. I don't understand why everybody is so, why politics demands that they vote no or pretend that she's the worst ever. I agree that seems to be what politics demands. Same thing with people who tried to filibuster John Roberts. I don't get it really.

[00:45:47] [Dan] Because the people, the engaged base wants to see fighters, right? They don't like compromises. I mean, this is sort of what's part of what's wrong with our system right now, right?

[00:45:56] [Will] Yeah, but so why do the interest groups want to see—the interest groups who are stirring up the base, why is that what they demand?

[00:46:03] [Dan] I think they just want donations and they've staked out these positions and this gets people riled up and causes them to donate. I don't know. I mean, there's different interest groups. I mean, there's not an interest group for the moderate interest group and let's all get along.

[00:46:18] [Will] Right. But it's not even moderate. I just mean if you're trying to achieve the most conservative judiciary possible, part of how you would achieve the most conservative judiciary possible would be to make confirmation easy when people on the other side, when Democrats nominated somebody more moderate and make confirmation hard when they nominated somebody more radical in the scheme of the possible. And sometimes there are some groups that do that. There's some groups that could give us a good scorecard to somebody in the other party for being like better on the issues they care about.

[00:46:45] [Dan] Although it could have been, we don't know the counterfactual of what would have happened if Judge Childs, who I think ended up being perceived as kind of more conservative, if Judge Childs was the nominee versus Judge Brown Jackson.

[00:46:58] [Will] So right. So maybe in this case, maybe that's the opposition will be, we're so upset that it's not Judge Childs. That's what the Republicans will say. But I predict that there will be very little worth talking about, but we should probably talk about it. When the hearings happen. Yeah, we will.

[00:47:10] [Dan] Yeah, we will. Although I think our general approach is we don't talk about everything. We kind of talk about things when we've got something to say and maybe something other people haven't said or our own idiosyncratic take, and maybe we will have that on these. But these confirmation hearings sort of follow a script. I sort of worked for Senator Whitehouse on the Barrett confirmation, did some research and stuff, and that was interesting, but again, the whole thing was kind of there was a script that that went by, and so there's not a lot of interesting action, right? I mean, sometimes things go off the rails. That happened with the Kavanaugh nomination, but for the most part, we kind of just know how these things work.

[00:47:53] [Will] I mean, yeah, and sometimes the theater can sometimes be useful. Like in the first part of the Kavanaugh nomination, there was this, in the circles I travel in, there was this interesting drama about whether or not he was going to say he was an originalist.

[00:48:07] [Dan] San Diego. This is the San Diego talk. Metaphorical San Diego, at least.

[00:48:11] [Will] I was thinking of the coded Federalist Society secret messages.

[00:48:13] [Dan] Okay, that too. Well, it's the same thing, I thought. You just have to figure out a way to not let Eric Segall hear what you're saying in San Diego.

[00:48:20] [Will] It doesn't work that way, Dan. Anyway, so—

[00:48:21] [Dan] You're off the game today, Will. You're not getting me with the rejoinders.

[00:48:24] [Will] You stabbed me in the back in the first 10 minutes of the episode. You expect me to recover already?

[00:48:29] [Dan] You can come back from that. You love getting criticized.

[00:48:30] [Will] I do. I do. Yeah. Especially when it just proves that I was right in the first place.

[00:48:36] [Dan] Okay, well, we'll see. Stay tuned on that. We will try to add some value if we can, and if not, we will just take a long time before recording again. Okay, one other thing to follow up on, in that you may have violated your promise to yourself to never say anything critical of the Justices, right? Which is, you said—

[00:48:59] [Will] I criticize them all the time, Dan.

[00:49:02] [Dan] You don't like to get too personal. You like to be nice.

[00:49:05] [Will] I don't know any of them.

[00:49:07] [Dan] You know them enough. I think you said like Justice Barrett was like the best law professor to be appointed to the Court since Felix Frankfurter or something, right?

[00:49:18] [Will] Since Justice Story, I think I said, but I don't care.

[00:49:21] [Dan] That was going back to 1830 or whatever. And we got some feedback on that. I sort of pushed back and said, "What about Breyer? Breyer wrote some famous stuff." And then what about Kagan? Justice Kagan, right? You didn't—forgot about her. And I did some research on that. She had more citations as a legal scholar at the time of her appointment than Justice Barrett did, suggesting kind of maybe greater influence as a law professor. You buy that?

[00:49:46] [Will] I'm not sure. Maybe. It's a good point. And I should say, you know, Justice Kagan was—started her scholarly career at the University of Chicago, where I now teach. There's a plaque on the wall outside her office, you know, memorializing the greatness, the great thoughts that were once within.

[00:50:01] [Dan] Although famously, they did not give her tenure. So she was left for long enough to be in the government during the Clinton administration. She had gotten tenure at Chicago. She left and had to give up her tenure because she was gone for long enough, and then they didn't have her come back with tenure.

[00:50:19] [Will] Yeah, well, she ended up going to Harvard. I think the exact story of how that went down is—I've heard many different versions of from people who were there.

[00:50:24] [Dan] Well, I have heard her version directly from her lips when I was a student at Harvard and she said they wouldn't give me tenure back. And she didn't go to Harvard with tenure. She went to Harvard as a 2-year visiting professor and got tenure after 2 years.

[00:50:37] [Will] Did she have tenure at Chicago before she left?

[00:50:39] [Dan] I believe she got tenure and had tenure for about a year is my memory. But you can look into the Chicago archives on that. This is how she represents the story.

[00:50:49] [Will] Well, fair enough. I'm not going to have a personal fight with her. Obviously, Justice Kagan was a—incredibly prominent scholar. Three thoughts though. So one is, I think most of her work, she had the one article on presidential administration based on her experience in the Clinton administration, which is now her most famous work. Most of her earlier work was, she had a couple of First Amendment articles. So she was covering sort of different area of con law.

[00:51:14] [Dan] And she wrote that article about how confirmation hearings should be more rigorous and nominees should have to say more about their views. Yeah, it didn't hold up as well when she was nominated.

[00:51:24] [Will] I taught that article, actually. It holds up pretty well.

[00:51:29] [Dan] Yeah, I think she backed away from it a little bit.

[00:51:32] [Will] Yeah, well, she could get away with it. I do think that the presidential administration article, like a lot of, you know, Justice Scalia scholarships, frankly, has taken on outsized importance and outside valence—outsized valence now that she is a Justice. I mean, it already—did in part because it could be seen, not totally accurately, but it could be seen as a kind of liberal endorsement of some of the unitary executive ideas. The article actually is careful not to endorse that, and obviously, as a Justice, she has not endorsed those views. But it sort of became part of that movement as well. So it really sort of took on a life of its own in a way that I think it's fair to say Justice Barrett's scholarship didn't do quite the same thing.

[00:52:13] [Dan] Well, it has not yet. Right now that she's on the Court, it's almost certainly gonna get cited more. But what you're saying is right. I looked at the citations, and her citations definitely, and that article did go up post-Justice Kagan's post-joining the Court. But, you know, I've gotta think that's gonna happen in the same way that, like, Justice Scalia co-wrote that book about statutory interpretation and, like, making arguments. That has all these canons in it, and now everybody feels like they have to cite it. As if it's some kind of authoritative thing.

[00:52:42] [Will] Yeah. But I will say this about Justice Barrett, is she's the only Justice who I have ever invited to a symposium and had accept. So that kind of makes her the best, no matter what.

[00:52:54] [Dan] Okay. That's fair. Was this pre-Supreme Court tenure or post?

[00:53:01] [Will] Pre. It was pre-7th Circuit tenure. I think she was actually—there was some question whether she was going to be confirmed to the 7th Circuit I think before or after the article hit print, which mattered for some reason, maybe what the byline should say or something. It was a symposium on Justice Scalia in the University of Chicago Law Review after he passed away.

[00:53:16] [Dan] Well, maybe that symposium had kind of got her over the finish line in terms of confirmation. And so she should thank you. Okay. Are you issuing a mea culpa or are you just fudging it on your claim?

[00:53:31] [Will] Neither one. I'm going to stick to my guns.

[00:53:34] [Dan] Okay, your guns being that she is the greatest law professor appointed since now Justice Story, nearly 2 centuries ago.

[00:53:40] [Will] She's also publicly endorsed the Baude and Sachs thesis that originalism is our law.

[00:53:45] [Dan] Okay, well, that's a good reason.

[00:53:48] [Will] If that doesn't make you the greatest professor—

[00:53:49] [Dan] How about Justice Holmes? Didn't Holmes teach at Harvard briefly? If he did, he was more- Am I remembering that correctly?

[00:53:54] [Will] If he did he wasn't a professor.

[00:53:58] [Dan] He was mostly a lawyer.

[00:53:59] [Will] I think he was a state supreme court justice forever, right?

[00:54:03] [Dan] The Massachusetts Supreme Judicial Court. Now, I mean, Holmes, love him or hate him, right? He's a very controversial figure, but hugely important as a thinker about law, right? Like, set the intellectual tone—

[00:54:15] [Will] Hugely important as a writer about law.

[00:54:18] [Dan] You don't think his views about kind of law, seeing law, going back to something we talked about at the beginning, seeing law as a command of the sovereign and not the brooding omnipresence in the sky. That formed the kind of intellectual underpinnings of Erie. You don't think that is important?

[00:54:33] [Will] I mean, so I see Holmes as a kind of proto-realist, right? Like before full-blown legal realism, he was one of the people starting to debunk these kind of pre-realist ideas about law. And those ideas are really important. And Holmes had just an amazing ability to summarize these things in a phrase and to write opinions that we still like to read 100 years later. But I'm not sure, uh, maybe I'm, maybe I'm just, uh—now we're gonna get email from all the Holmes stans, I guess. But I'm not sure that he supplied a lot of the, like, brilliant ideas so much as being one of the people who, who took some ideas that were kind of, like, on the rise and just put them in a way that was hard to resist.

[00:55:20] [Dan] Okay, interesting. I don't totally know. I don't know how Justice fares under that test, because I'm not sure she has introduced huge new ideas that have been game-changing, but maybe. Okay, so you're not going to back away from that. Can we just talk about one other piece of Supreme Court trivia about the Justices for one second? Which I didn't know, maybe you knew. Remember Justice Brandeis, who we've talked about, because we didn't remember he's from Kentucky, even though Brandeis University is in Massachusetts? And he co-wrote this before he was a judge, co-wrote this famous article with Samuel Warren, who was his law partner, about the right to privacy, this emerging common law right to privacy. That was very influential, highly cited. And I was actually looking at that article. We were using it in the Fourth Amendment article and sort of saying that there's some intellectual connection between this and what the Court has done. But I didn't know, so Brandeis had structured a trust for Warren that his brothers sort of said screwed them out of money. Then Samuel committed suicide as kind of the denouement to that. This came up in the Senate confirmation hearings. There's some questions about how Brandeis behaved ethically. Now, I've only read very brief descriptions of this and haven't dug into what exactly happened. It's kind of a surprising end. I was just curious who was his co-author in this article. I didn't realize that, that this had happened.

[00:57:04] [Will] Hell of a way to end a co-authorship.

[00:57:07] [Dan] Yeah. You never heard that one?

[00:57:09] [Will] No, I never heard that one. Now I'm never going to let you structure any trusts for me.

[00:57:13] [Dan] Well, that's good because I'm not licensed in your or my jurisdiction. I do have some estate planning advice for you if you need it. My guess is, given that you couldn't even get yourself admitted to the Supreme Court bar without a lot of prodding, did you ever do it?

[00:57:29] [Will] Not yet.

[00:57:30] [Dan] Okay, not yet. My guess is you haven't created a revocable family trust. Am I right?

[00:57:38] [Will] I have a will.

[00:57:40] [Dan] That's not going to get the job done. We'll talk about that later. Okay. That was my piece of Supreme Court trivia for today.

[00:57:55] [Will] Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring our endeavors. Please remember, if you haven't yet rated or reviewed the podcast on the Apple Store or wherever you find the podcast, please remember to do that so we can keep listeners helping to find the show.

[00:58:09] [Dan] And if there's a long gap between this and our next episode, it will be because I am busy explaining and writing why Will is wrong about something else.