Marshal Law

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

[00:00:25] [Dan Epps] And I'm Dan Epps. Okay, I know each time we think we're going to be able to come back sooner than we do. It's been a long time. It's been a month, a little bit more than a month. I feel like we've got some decent excuses this time, right? What's your excuse?

[00:00:40] [Will] I got COVID and had to quarantine in my office.

[00:00:45] [Dan] And it was really terrible timing for you because you were having this great conference on the Reconstruction Amendments. I was there, had a bunch of great people. There was a great dinner, and I was hoping maybe we could find time to sneak in an argument recording while I was in Chicago, but instead, you had to stay inside your house the whole time while everybody else had this amazing experience at UChicago on your Constitutional Law Center's dime. So I'm sorry that happened. What have I got? I moved houses. So I've been packing and unpacking, and that's been very time-consuming.

[00:01:21] [Will] Moving houses, like getting to leave your house. That sounds amazing.

[00:01:24] [Dan] Yeah, yeah. It turns out it's good. And so currently now I have 2 houses. I could—if I had to quarantine, I could go to either one of my houses, but hopefully I will only have 2 houses for another week or so. So that's been busy, you know, wrapping up the semester, but all of these promises are totally unenforceable. But my schedule is a little freer. I'm hopeful that as the rest of the term kind of ramps up and we start seeing more stuff happening, I'll be able to be in the mix recording a little bit more. We'll see.

[00:01:55] [Will] Promises, promises.

[00:01:57] [Dan] Yeah.

[00:01:58] [Will] I've still got another week and a half of classes to get finished teaching, but yeah, I'm hoping we'll be able to really kind of maintain a more regular clip once the Court is doing things.

[00:02:09] [Dan] I think there will be a lot that's happening, although as we're going to talk about today, we got a very unusual preview of a case that normally would come down at the end of the term, last day of the term. We got to see some of that earlier. I think you know what we're talking about, but let's wait on that for just a minute, because we probably have some follow-up. What's our follow-up?

[00:02:32] [Will] Let's see. So 2 things worth mentioning, I think. So last episode, as I vaguely recall it through the brain fog, we talked about the Tsarnaev case, and we talked about a concurrence by Justice Barrett about the question of whether or not the courts of appeals had any kind of supervisory power over the lower courts. You know, whether the Supreme Court was differently situated at all. And, you know, we noted some of her arguments. A lot of readers wrote in to remind us of a fact that we had forgotten. Uh, I think Spencer Livingstone was the first of the people to write in, but there were many readers who wrote this in to point out that, uh, there is an important, prominent law review article on the topic of the supervisory power of the Supreme Court by Professor Amy Coney Barrett. That is, I think, not cited in her concurrence in a sort of like slightly odd flex.

[00:03:26] [Dan] It's pretty unusual for a justice to cite their own scholarship, I feel like. I feel like justices often cite their colleagues' scholarship, and we have an example of that today. But I think it's actually relatively rare for justices to cite their own articles, don't you think?

[00:03:45] [Will] I guess that's right. I mean, it's just it's strange not to, but maybe you just—

[00:03:50] [Dan] Yeah, it's a little bit boastful. Yeah, I think I must have read that at one point when I was doing a little bit of stuff in connection with the Barrett nomination. This is the second time I think this has happened. There's one other article of hers that people wrote in about that we forgot, so hopefully we will not do that a third time. But it kind of costs you some credibility, Will, because you made these bold claims about how she's like the best legal scholar in decades to join the Court, better than Breyer and Kagan, though you didn't say that explicitly. Now it turns out maybe you don't even know any of her articles.

[00:04:28] [Will] I think it strengthens the claim in two ways. One is she has a lot of articles, unlike Kagan, where probably we could just do all of them.

[00:04:34] [Dan] She has like eight articles? She doesn't have that many.

[00:04:36] [Will] We could probably name all of Kagan's articles off the top of our head, because it's a small list. Barrett, I think, was in charge of a couple.

[00:04:41] [Dan] She was in the academy for less time, and she was a dean for a big chunk of that time.

[00:04:45] [Will] Yeah. I'm not saying she—had a bad productivity rate, just saying, right? The total amount of years spent as a kind of scholar producing articles on a regular basis is different.

[00:04:55] [Dan] Fair.

[00:04:56] [Will] And again, I think I had sort of internalized this argument. I mean, we talked about the argument a lot, and it's just one of the many things that I now think of as just an important true claim about the Constitution. And then I forget that they all come from the same person. So it's sort of like when there's somebody whose work is so foundational that you sort of forget that that came from a mortal human being. Rather than—

[00:05:17] [Dan] So she's living rent-free in your head. OK. Well, maybe that's true. Maybe it's just a clever lawyerly response to my devastating critique of your claims, but I'll let it go.

[00:05:32] [Will] This reminds me of another—this is a point. I had lunch with some students in my Fed Courts class yesterday, and one of them complained to me about my behavior on this podcast in particular, that I never laugh at your jokes, apparently. I hadn't noticed this, but apparently I never laugh at your jokes.

[00:05:48] [Dan] Oh, I can see you. You're smiling. So maybe you're restraining your laughter to try to avoid even giving me a point.

[00:05:56] [Will] Yeah, I pointed out that almost all of your jokes are at my expense, so that's why. And then he said that was not an excuse.

[00:06:02] [Dan] You still think they're funny, though.

[00:06:03] [Will] Of course they're funny. But I worry you already have the upper hand in this podcast, and so I've got to—

[00:06:08] [Dan] OK. Well, apparently I do with your own students. If they're criticizing you for that, they think I'm funny. So thank you, students.

[00:06:18] [Will] So you've got a fan club.

[00:06:21] [Dan] Great. OK, I'm going to go out on that piece of feedback on a high note, unless you have something else on that.

[00:06:28] [Will] One more, much more minor thing about Tsarnaev, but maybe important for the case, is we also talked about sort of the fact that there weren't any kind of 6th Amendment or other fair trial claims in the case. A point that Justice Thomas mentions at the end when he declares that the Tsarnaevs received a fair trial. And one attentive reader wrote in to point out, actually, the defendant did raise a bunch of other constitutional claims that have just not yet been resolved, because the First Circuit granted relief on the two claims that the Supreme Court reversed. There actually are, in principle, a bunch of other claims below that could still set aside the—

[00:07:03] [Dan] On remand that they would—

[00:07:04] [Will] Yeah. Although—this is one of those awkward situations where now that there is a sentence in the Supreme Court opinion saying they received a fair trial as required by the 6th Amendment, there'll be a little bit of a fight on remand of what does that. This happened a couple years ago. The Supreme Court did this in an opinion by Justice Alito where they, in one sentence, he maybe accidentally resolved a bunch of claims that otherwise were not before the Court. And then on remand, the 9th Circuit said, well, we were planning to reverse on those, but apparently we weren't allowed to. And then it had to go back up to the Supreme Court, and the Supreme Court had to amend its opinion and sort of summarily reverse itself.

[00:07:39] [Dan] There was a case from around the time I was clerking where something similar happened, but happened in, I think, the 7th Circuit, where the 7th Circuit kind of like—the Court summarily reversed on some other reason. It went back to the 7th Circuit, and then the 7th Circuit said something that kind of precluded the—I think it was a capital defendant, or maybe it was just a prisoner—his ability to raise a bunch of claims that had never been adjudicated. And so this Supreme Court had to summarily reverse again.

[00:08:09] [Will] Yeah I remember that. Yeah, like from the other direction.

[00:08:11] [Dan] Yeah. And then I remember the 7th Circuit wrote kind of like a sheepish, like, whoops, kind of opinion in response.

[00:08:18] [Will] There's one other sheepish 7th Circuit opinion. There's an Easterbrook opinion where an opinion went up to the Supreme Court and got reversed, and then it was remanded to the 7th Circuit. And apparently, the 7th Circuit just didn't have a pile for opinions that need to be ruled on because they were remanded from the Supreme Court, because they get reversed so rarely. So just like, it wasn't on any of the lists, and nobody—like, for something like 5 years, like, it just—nothing happened. And the litigants kept calling the court, and the clerk of court would just be able to say, you know, of course the court's going to rule on your case. You know, stop bothering us. How dare you? When in fact, it was just not in a pile where anybody was working on it. And eventually, Easterbrook noticed it.

[00:08:54] [Dan] That's not great. Yeah. Okay. I have an even smaller, less substantive feedback point, but my colleague, Ron Levin, one of our most faithful listeners, despite the fact that I don't think he has a Twitter account, but somehow I think he was the first one of my colleagues to pick up on this podcast, first one of my colleagues to pick up on the previous podcast. He often gives me a lot of substantive stuff about we get administrative law a little bit wrong. Fair enough. But he had an interesting correction. He's from St. Louis, and he had never heard the term Hoosier applied pejoratively in the county of St. Louis where he grew up, but he asked a friend from the city, and they said, yeah, that is a thing, but we may have used it slightly incorrectly. It's not just a—it's not a dumb person. It's more of a class kind of—it kind of means like a hick or maybe kind of like a white trash person. So there you go. So maybe you're not a Hoosier. You're very urbane.

[00:09:49] [Will] No, I'm pretty trashy actually.

[00:09:53] [Dan] All right. So thanks, Ron. But also have another thing to say to Ron, which is that we've had an ongoing discussion about whether, uh, Dobbs, um, the Mississippi abortion case, was likely to be the case where the conservative majority, uh, actually took the step of overruling Roe. I said I thought it was, uh, based on the argument. He said no, they're gonna still come up with some half measure and they'll do it next term. Looks like I'm probably right.

[00:10:24] [Will] It does look—I would say I was on, uh, Ron's side. I thought even after argument, that the Chief had a 50/50 chance of pulling—

[00:10:33] [Dan] Yeah, but you're not giving yourself enough credit, because I think we talked about this case earlier, I think around the time of the grant, and you said, based on the wording of the question presented, I think this is maybe the one, right? And I think that was clearly right. And I think—did they write—I'm trying to remember, did they actually rewrite the question presented?

[00:10:54] [Will] I think not. I think they just—they granted only one of three QPs.

[00:10:58] [Dan] Yeah. But that question presented was phrased in such a way that—

[00:11:07] [Will] I think in part it was that the other two QPs were more obviously half measures, were like questions about what is the controlling opinion in June Medical. Is it Chief Justice Roberts' opinion, or is it the majority? Is it the Breyer opinion? And there was no good reason to rule those out. Unless you were intentionally trying to get rid of some half measures.

[00:11:25] [Dan] So yeah, QP1 was whether all pre-viability prohibitions on elective abortions are unconstitutional, kind of a broad statement, not phrased in terms of whether Roe v. Wade and Planned Parenthood v. Casey, the leading abortion precedents, have to be overruled, but fairly does seem to maybe rest on those questions. And so I don't know. I think, yeah, you never know, and it could be that certainly some of the justices would have wanted to do that. Maybe the Chief comes up with a way to—to uphold the law at issue here, but not actually go all the way and say, no, we're actually overruling those precedents. That seems to be based on how he's behaved in some of these other cases. He does not seem to want to go all the way. Some people say maybe he's worried about the legitimacy of the Court if that happens. But we now know, it is early May. We seem to have a much better glimpse of what is happening. In this case than we would have expected to at this moment. Why

[00:12:25] [Will] Well, on Monday night, Politico—two reporters at Politico released a copy of a draft opinion that somebody has given to them that they strongly believe is authentic. And the Supreme Court actually has since confirmed that it is authentic, although the Court stressed that it's not the final opinion and so on, which is also true. So we have a first draft opinion drafted by Justice Alito, circulated February 10th, 2022, in which, in a 98-page opinion, speaking for the Court, Justice Alito—

[00:13:00] [Dan] Yeah, well, some of that is an appendix.

[00:13:02] [Will] A lot of it's an appendix. Overrules Roe and Casey.

[00:13:05] [Dan] A lot to talk about here. I think we'll probably talk a little bit about the substance of the decision, which I think is obviously the thing that is most important to people across the country, right? This is an issue in which people have very profound and deeply entrenched feelings about. Many, many women, it's going to affect their lives. They need to get an abortion. Many people of different religious backgrounds are strongly opposed to abortion because they believe it's murder. I think we'll say less about that than the nerdy kind of technical procedural questions, talk about the leak. And it's not really because we think that stuff is more important, but at least for me, it's where I guess I feel like I have more expertise to offer rather than, you know, I'm not, you know, necessarily an expert on, you know, the questions underlying the merits of the case. And I think everybody has views. Their views are a lot going to be informed by their moral principles. And so I don't know if I can offer a lot there that a lot of other people who have thought about these issues a lot more than I have can offer. But, you know, we do have—I do have some thoughts about, you know, what exactly is going on with the leak and with, you know, how the opinion is coming out and so forth.

[00:14:27] [Will] Well, as you know, Dan, I don't have your humility, but I do think it's hard to say that much for two reasons, sort of slightly cross-cutting. One is, you know, we really don't know what the Court's ruling is going to look like. I mean, I know people say, oh, it's just a draft, and, you know, it's not it's not just a draft. Obviously Justice Alito wrote this. Given the conversation in conference, this gives us a lot more sense of what the first few months look like. But as we'll talk about in a second, I think one main reason this could have been leaked is because of possible sort of tectonic shifts in what the majorities are looking like or what's going on. And we don't know what the dissent looks like, and there are different ways that could look like. We don't know what the concurrences look like. So it's just It was harder to know exactly what to say. On the flip side, I also think it's an incredibly unsurprising opinion in some ways.

[00:15:17] [Dan] It's exactly the opinion you would've expected Justice Alito to write had he been assigned the majority.

[00:15:22] [Will] It's exactly the opinion I would've expected Justice Souter to write if he were still on the Court and for some reason voting with the majority. It's just very workmanlike. It goes through the arguments in maybe more detail than I fully expected. If it were a kind of Rehnquist-style opinion, you might expect it to be just like 18 pages, kind of get it done. And it spends more time walking through why they found unpersuasive the historical analysis in various articles cited in the original Roe opinion, been widely criticized for being probably too cursory with respect to the equality theory of abortion, which the Court has never really embraced, which is clearly foreclosed by the Court's precedents. But it's an ironic time for the Court to be relying on precedents since they're overruling precedent. It's probably not totally satisfying about how to distinguish other substantive due process rights. But it's just like, it's a kind of thorough workmanlike opinion, and there are a few footnotes that people are going to argue whether they go too far or not far enough. But I'm not sure we learned—in some ways, having confirmed that nothing surprising happened is itself a little bit of a surprise, because it's such a big case, there could be lots of things going on.

[00:16:28] [Dan] Yeah. Now, in terms of, I guess, maybe one point about the substance, and then maybe circle back to the procedural questions. Mike Dorf, Cornell's Mike Dorf, great con law scholar and great public commentator on the Court, he had a blog post today where he said something interesting, which is the draft opinion kind of tries to, as you alluded to, distinguish what it's doing from other kind of substantive due process precedents, like the gay rights cases and so forth. And it sort of says, well, the difference is—I don't know if I have the right language right here, but basically the difference is abortion involves kind of like taking a potential life, whereas those cases don't. And he sort of said, look, if you accept that framing, you're necessarily agreeing with anti-abortion advocates on the underlying moral views that they're advocating, that this is taking a potential life. I see that criticism. I wasn't totally sure where I came down on it because you could interpret it as saying, look, here there is at least this kind of plausible argument. And so that implicates kind of weightier moral concerns in a way that maybe those other cases don't. I'm not sure. What do you think?

[00:17:58] [Will] I think the phrase that the Court uses—or the draft uses, sorry—is, yeah, it refers to potential life and an unborn human being, and those are quotes from Roe. So I think their point is that even on Roe's understanding, there's a debate about whether the potential life is human life, is entitled to moral weight, is a moral person. There's a whole bunch of other labels we could debate about, but I think the idea is that in a lot of the other cases, the Court basically concluded there was no plausible state interest in support of banning gay marriage, in support of regulating sodomy, et cetera.

[00:18:34] [Dan] Yeah, yeah, yeah.

[00:18:35] [Will] And here, I think the point is there's a plausible state interest. Now, maybe it's a state interest that people on balance reject, and so on. So I don't think that's totally right. I do think a fair criticism is it is not clear what work that distinction does. It's not clear, even on Justice Alito's own account, whether the substantive due process test somehow is different for rights that take potential life versus ones that don't, because this test is mostly based on tradition rather than moral facts, or whether that's instead supposed to be a stare decisis factor of some kind that would somehow change the various stare decisis factors. And so it comes across as an especially unreassuring promise when you're told, here is this distinction, but despite the Court's 70-page opinion, you can't tell, oh, the distinction is going to matter when we consider this. But I hate to sound like a—well, I guess I always get accused of sounding this way. I think it's extremely unlikely that there will be five votes on the Supreme Court to overrule the other substantive due process cases. I think there will be more than zero, but I think it's extremely unlikely that there will be five.

[00:19:50] [Dan] I actually feel the same way, just because I feel like Obergefell—I mean, it's just much more politically entrenched at this point in a way that abortion has stayed very politically divisive. I mean, if you talk to pro-choice people, I mean, they'll say—they'll point to statistics that show Roe does have majority or even supermajority support. But it's not like gay marriage where you just see this generational change where, you know, as, you know, new generations kind of replace old ones, there's just much more support. So I just, I feel like there's just not going to be, you know, there's not necessarily going to be like the stakes or the desire to do it. Who knows? One other thing, I think Mike Dorf is a good person to watch on his commentary because I think it's been kind of widely reported, discussed in legal circles. I don't think he's ever taken credit for it, is that Mike was the clerk for Justice Kennedy in Casey, where Justice Kennedy kind of famously votes unpredictably to retain kind of part of—not exactly Roe, but sort of part of it. OK. That's probably—maybe we'll circle back to more substance in a second. But I feel like we should talk about the stuff where we have some value.

[00:21:15] [Will] Well, the thing that's surprising, again, I'll say, is not so much this opinion. If this opinion dropped in six weeks, I'm not sure anybody would've been surprised at all.

[00:21:24] [Dan] They would've been upset. Many people would've been upset.

[00:21:27] [Will] But they would've said, this is exactly what we warned you has been happening, Cassandra-like. But I think the surprising thing is that this opinion dropped on the Politico website on a Monday night.

[00:21:35] [Dan] Yeah. Depending on how much you know about the Court, this is crazy. This never happens. The actual full text of a draft opinion being leaked, being publicly available well before it was supposed to be released. This just does not happen. Occasionally, there are leaks, sometimes after the fact, about, oh, this person switched their vote. Sometimes there's murmurs about—I remember there being kind of murmurs, oh, the Chief is maybe losing his nerve in the Affordable Care Act cases, but it was not reported as anything kind of definitive.

[00:22:14] [Will] There have been some—I think Mark Tushnet pointed this out, that I think the result in Roe v. Wade was leaked like a week or two before the opinion came out, because a law clerk was talking on a plane. So there even have been—not recently, that would still be a very big deal if that happened today, but even then, it's not like somebody had the opinion and put it in the papers. I mean, this used to happen some in the 19th century. As I recall, Justice Curtis's dissents in Dred Scott were published in a bunch of newspapers before the opinion came out. Majority opinion came out. Charles River Bridge case. I mean, so there was a—the 19th century is different. It's a different media culture. And also, strangely, you could leak an opinion in the newspaper and a bunch of people still wouldn't know about it if they didn't get that newspaper and stuff.

[00:22:51] [Dan] Yeah. I vaguely remember there was something else kind of like Brethren era where someone leaked something about an opinion to their roommate who went and tried to make money off of it, but I don't remember the specifics.

[00:23:04] [Will] And there was a person in the Reporter Decisions Office who got disciplined for talking to—ABC or something. So, so it's not that there are never leaks, but this kind of—

[00:23:15] [Dan] This is shocking. And this is shocking. And, you know, it's—if you only think about other branches of government, there are leaks all the time from the executive branch, right? Like, and Congress can't maintain secrecy about anything. So it's not even like we're talking about leaks out of Congress. But like, in terms of the executive, there's whistleblowers, there's people leaking all sorts of stuff. Everybody, you know, writes these tell-alls after they leave. Court, it just doesn't really happen. Somebody almost certainly someone did this intentionally. I'm trying to imagine if there's some scenario where this was kind of inadvertently discovered. It seems unlikely. People tend not to bring paper drafts of opinions outside of the building. I don't know what the—

[00:24:00] [Will] I think it's not allowed.

[00:24:02] [Dan] Yeah. I mean, I think it's not allowed. It doesn't mean nobody does it. I don't know what the current state of the kind of infosec regime is at the Court right now. When, when we were there, it was pretty rigorous. You had 2 different, uh, networks, internal and external. My understanding is that there's been a little bit more seepage, uh, between those. But someone presumably—and it looks like somebody printed this draft, um, you know, Politico could have printed it and scanned it, but what it looks like is somebody printed this draft and mailed it, handed it over to Politico, and Politico scanned it and released it. And so if somebody chose to do that, you know, there's also, you know, first of all, who? And second of all, why? You know, and there's a lot of speculation. So the first thing people are saying is, gosh, this is a liberal law clerk who is mad about this and wants to kind of—yeah. And okay, that's possible. Other people are saying this is, you know, this is a conservative justice or law clerk who they thought they had the majority, and now Kavanaugh is buckling, and they need to kind of get this out in the record to kind of lock him down. Maybe there are people kind of playing 3-dimensional—6-dimensional chess, where they're like, okay, this will make the debate focus less about the substance and more about the process.

[00:25:21] [Will] I think those are both plausible. I think there are sort of four main categories of plausible theory, and those are two of them. Then I think the other two plausible categories are, it's not a justice or law clerk, it's somebody else in the building who has access.

[00:25:33] [Dan] Honestly, I think that might even be the most plausible thing.

[00:25:37] [Will] Maybe. I mean, so, and their versions. And then the fourth theory is the kind of, it's an outsider sort of, uh, I know some people who very sincerely believe it's like hackers, for instance, doing this to sow just a, you know, as a great way to sow sort of chaos in the American political scene. Or I think a more plausible version, again depending on the infosec question, could be like the roommate of a law clerk who, you know, for some reason had access—like, it's in the downloads files, you know, um, or, you know, like that kind of thing. I think all 4 of those have some things going for them and some things cutting against them.

[00:26:13] [Dan] I, I haven't—I guess, you know, I think a lot of liberal people are kind of pushing the this is actually a leak from the right theory. And maybe I'm naive. I, I just—I, I I'm less—I'm a little bit more skeptical of that, because I just think that if you're somebody in the majority, I mean, first of all, ex ante, it's far from clear that leaking it is going to have the effect that you want, that it's going to kind of make Kavanaugh think, oh gosh, I've got to go back to what I was going to do, if he's losing his nerve. Far from clear. And I don't know, if you are close to the precipice of this huge major victory, this thing that they have been trying to get for decades, overturn Roe, it just seems like you're going to be less willing to just introduce a bunch of random—a big random shock into the process because you have no idea what's going to happen. Whereas if you're upset about it, you're losing, maybe you think this—in terms of, is this going to put more attention on the process than the result. I mean, maybe briefly. I mean, I think that when this finally comes down, I mean, I think that, you know, people in the public are not really going to give a shit about, you know, did somebody leak this or not. They're going to be upset about, you know, or happy about, you know, the actual substance. So I don't know. In terms of the, like, liberal law clerk theory, I mean, it's just, you know, and there's some people who are on Twitter very irresponsibly, like, naming a, you know, particular person that they think it is. Right? I think it's extremely irresponsible. I think it's arguably defamatory. It kind of reminded me of the Ed Whelan, Zillow, Kavanaugh doppelgänger theory, which was also probably defamatory. Part of that goes to my belief that maybe it isn't a liberal law clerk, because there are 12 in the building, right? There's 3 kind of—liberal justices, they each have 4 clerks. There's 12 people. And if you're one of those people and you leak, you got to think there's going to be 12 suspects, right? And at that point, they might be able to narrow it down to me. And however much you care about the substance, you know, this is really going to be a problem for you in terms of your career and might be a crime. Not clear that it is. Probably isn't, but it could be. And so I don't know. And also, at that point, for such a person, it's not clear what they stand to gain. Yes, leaking it, people are upset. Is this going to make a difference? Is it going to make the Court suddenly change its mind? I don't know, and I certainly don't know that any such person would be willing to take the risk for such a speculative benefit, so.

[00:29:13] [Will] So I agree with you that all the random Twitter defamation is irresponsible and implausible, and also kind of just shows how little people understand this world. It's not a smoking gun that law clerks for liberal justices also worked for left-wing organizations. It's not a smoking gun that many people are less than 6 degrees of separation from the reporters at Politico, because these are incredibly small elite networks. It's not a smoking gun that people signed letters saying that Brett Kavanaugh was a menace to society or whatever, because that's what most Yale law students do. So I think it just totally misunderstands where the kind of median left-wing law student is today. I will say—well, we can talk about this in a second. If the leaker is found, I'm not sure whether it's going to be the Supreme Court that finds them or some random vigilante that figures it out. It really is possible that'll be the way it happens.

[00:30:05] [Dan] That's interesting. How do you think a random person would figure it out?

[00:30:09] [Will] Well, I mean, I guess one is it's possible one of these crazy conspiracy theories is true. Either the left-wing ones or the right-wing ones.

[00:30:15] [Dan] But these random Twitter trolls are not going to be able to find any smoking gun evidence, I don't think.

[00:30:23] [Will] I don't know. Yeah, we'll get there. I was just going to say, but it's also not clear—you started by saying if you were a left-wing leaker, you'd know there are only going to be 12 suspects, but I think we know that's not right. It's already unclear whether the immediate suspects are the 12 suspects or the others.

[00:30:37] [Dan] Yeah, but you would know that you were going to be the first 12 suspects, right?

[00:30:42] [Will] And I'm not even sure it'll be bad for the person's career. It'll complicate their career. There'll be a bunch of big law firms that won't want to hire them, but I bet—

[00:30:53] [Dan] There will be liberal boutiques that would.

[00:30:57] [Will] If next week one of the—the law clerk who leaked resigns in protest and publishes an op-ed in the New York Times about why they did what they did, I bet they can become a legal hero.

[00:31:09] [Dan] That's possible, yeah, but I mean, getting to the Court, getting a Supreme Court clerkship requires a lot of long-term thinking, requires a lot of risk aversion, and there's a reason that this doesn't happen very much. So I don't know. I tend more to think that maybe this was somebody in IT, some housekeeping, something, someone just comes across this and it's like, oh, wow. Like, this is super interesting. Let me get this out there. But who knows? And we may know, we may not know. The Chief Justice has launched an investigation. It's going to be led by the Marshal.

[00:31:47] [Will] Yeah. So this is one of my favorite facts about season seven of this television show called life, right? Do you remember when Trump was president and there were all these theories that at some point, the secret articles of impeachment or the whatever were going to be referred to the Supreme Court Marshal, who was finally going to take Trump into custody for I don't remember what.

[00:32:08] [Dan] Weren't there actually secret impeachment proceedings happening in the basement of the Supreme Court or something?

[00:32:13] [Will] Right. Yeah, there was some case pending, or this case has been docketed, and that's a sign that—so finally, the Marshal of the Supreme Court has emerged as an actual character in our drama.

[00:32:23] [Dan] Yes. Although that marshal was misspelled with two Ls, and so this is the actual marshal who is going to enforce martial law by investigating.

[00:32:37] [Will] So the Chief Justice issued a statement, which I thought was interesting at all, that the Court's willing to do it. The Court issued a press release confirming that the document is authentic, but stressing that it does not represent a decision by the Court or the final position of any member on the issues in the case. And then Chief Justice Roberts provides a statement for himself saying, to the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed. The work of the Court will not be affected in any way. We at the Court are blessed to have a workforce, permanent employees and law clerks alike, intensely loyal to the institution. This was the singular and egregious breach of that trust. I have directed the Marshal of the Court to launch an investigation into the source of the leak.

[00:33:19] [Will] That's the martial law. So I have a question about the first part before we talk about the investigation. And the other thought is that on the outside, we have a lot of different theories based on speculation about, well, if Justice Kavanaugh has suddenly gone wobbly, then it makes sense for this to be a right-wing leak. Or if the tensions are really high, it makes sense to be a left-wing leak. It's just worth noting that for the people in the building, the justices and the clerks, they know much more than we do about the context. So they might be able to—it might be obvious to them, frankly, which category it is. Maybe nobody's gone wobbly, and so the right-wing theory just makes no sense.

[00:33:56] [Dan] Politico said the vote was still there, I think, as of a week ago, right? That's in their story.

[00:34:01] [Will] Yeah, although there was some—I mean, so that was a week ago, and there were some—I mean, the vote on—I don't know, there's some different kinds of ambiguities about exactly what that, what that means.

[00:34:12] [Dan] Yeah, there's a fifth theory, right? The fifth theory—this is, this is—I like this one. No, I don't really like this, it's silly—which is the Justice Stevens Memorial was on Monday, and that some like Stevens clerk somehow like found the draft in the trash and rushed it over to Politico. You haven't heard this one. This one is extremely implausible. These events are not in chambers. Justice Stevens—there is no Stevens chambers. The people were just inside the public areas of the Court. Also, that was on Monday afternoon. Politico would not have been able to get comfortable authenticating the story in 2 hours and publishing it. So that one I'm happy to rule out.

[00:34:52] [Will] I don't know. It belongs to all—every time I try to arrange these theories in order from most to least plausible, I'm not satisfied with my arrangement. So it can go on the list. I have some similarly irresponsible theories I'm not even going to share with our readers—listeners.

[00:35:07] [Dan] And so just, I'll say this by way of background. I'm someone who's a little bit more pro-court transparency than I think a lot of Supreme Court clerks. I think it's fine. And I think it's good that clerks, 20 years after, and their justices are dead, just tell people what happened. I think there's a really strong public interest. I think that it's good for the public to basically know how we're being governed. I wrote an op-ed to that effect. I don't think it's great to have draft opinions come out in the middle of the drafting process. I think that would—

[00:35:36] [Will] This is too far for you.

[00:35:38] [Dan] Yeah, it would change the writing process, and I think change it in ways that I think are not necessarily good. I think it would cause people to have lock in their positions. It would eliminate the possibility, I think, of compromise, which I think is important that there are cases where people really work together and they come to greater consensus and they step away from the precipice of maybe really big decisions. So I don't think—I had a brief Twitter exchange with our friend Steve Sachs about this. Just what I said was, look, I think there—I can imagine a scenario where I think this would be the right thing to do. Like, if the Court—if the Court was about to, like, install a dictator, or, like, you know, uh, maybe if you're a clerk working during Korematsu and leaking the opinion can, like, stop the Japanese internment or something.

[00:36:27] [Will] They did leak—Frankfurter did leak Korematsu, but it was the opposite.

[00:36:31]:[Dan] Did he?

[00:36:32] [Will] Yeah, so that to give Roosevelt a chance to close the camps first, that he wouldn't be embarrassed by losing.

[00:36:35] [Dan] He did. He won, though.

[00:36:39] [Will] Yeah, but maybe it was Endo. Maybe he leaked that, because it's—Korematsu was decided at the same time as some of the cases that—

[00:36:45] [Dan] Okay. But I mean, I'm just saying, like, something like that, where like the Court is about to perpetuate something kind of irreversible, and leaking it will stop it from happening. And here, I just—I don't see the—I don't see a clear story where leaking it has any benefit at all, even if you are strongly opposed to what the Court is doing. So I mean, maybe someone can tell me, knowing more, why that's wrong.

[00:37:13] [Will] So I agree with the transparency point, first of all, and I think one thing people often forget is that there's a trade-off often between external transparency and internal transparency, a lesson I learned painfully on the Supreme Court Commission last year. So right now, one thing that's shocking about clerking at the Court is how transparent everything is internally. You kind of know what the draft opinions look like, you can go look at all sorts of old things that aren't even sort of mission relevant. All that stuff sort of just circulates as a matter of course. If we end up in a world where this kind of thing happens a lot more, then I suspect there's going to be more often the justice will work on a draft and not let as many people see it. Maybe you circulate it only to people who are on your team. You don't let the dissenters see it until it's ready to go.

[00:37:58] [Dan] And you don't have your clerks informally communicate. I mean, because that was a nice thing about clerking there is a lot of it is just kind of law clerk to law clerk, hey, you know, what does your boss really want to do here? Can we come up with a way to make it work? And so I think it gets a lot more, uh, closed down.

[00:38:14] [Will] Um, you know, maybe you just write fewer opinions also. Like, that's also just a norm. So you could, you could just decide to announce results. Or so, yeah, I think the—it's—if this becomes a thing, if this is not just a, a singular and egregious breach of the trust, as, as, uh, the Chief says, it could really make the Court a less transparent place internally, and that has costs and consequences for how it functions.

[00:38:38] [Dan] Yeah. And so I am curious though, if it's going to be stopped from happening, how is the Marshal going to get to the bottom of this?

[00:38:47] [Will] Yeah. So I have many questions about this, and people have pointed out, already raised this question of sort of the Marshal of the Court, much of their job is kind of running and administering the building, And, and I'm like making sure people don't sneak in, you know, like cameras or weapons into the courtroom and stuff. Not—it's not, uh, there's a law enforcement component to it, but, but they don't, you know, like investigate normally, investigate and sort of like—

[00:39:10] [Dan] Yeah, although they supervise the Supreme Court Police. Yeah, but yeah, it's not—this is not the FBI.

[00:39:16] [Will] They're not like solving—they aren't like cold cases or like murders that the Supreme Court Police have to solve.

[00:39:21] [Dan] So this would be—this would be a great. We, we just came up with a great idea for like a procedural TV show.

[00:39:28] [Will] The Supreme Court Police?

[00:39:29] [Dan] That actually, I think that we should call Marshal Law, right? Like, this is a great—like, like, yeah, let's—can we copyright that? Um, that like every week, you know, the, you know, the scrappy, you know, Supreme Court Marshal who's a former Navy SEAL solves a new, you know, Supreme Court-related mystery. That'd be a smash hit. Sorry.

[00:39:53] [Will] I wonder if you get a full season out of that. It might be more of a miniseries kind of thing. So now that said, as I understand it, the Supreme Court Police do also have liaisons in some other departments. So there's a lot of ambiguity here. The investigation could include calling in the FBI liaison or the—but there are just some basic questions I really wonder about. So obviously there's a tech aspect to this and a question of, you know, is the Supreme Court going to turn over its computer system to some people with serious computer forensic skills or not? Or even just—I mean, so what do you think with this? Is somebody going to go around and ask every law clerk, either under oath or under penalty of false statement under 1001 or under a polygraph or some combination of the three, did you do it? Do you think that's going to happen? Would a justice put a test like that?

[00:40:49] [Dan] I don't think the polygraph is going to happen. I think a justice—it's hard for me to imagine Justice Sotomayor is going to let them polygraph her clerks, just as a matter of principle. But I think there may be interviews. And this is a point I made on Twitter, and that you just alluded to, which is that even if the leak itself is not a crime, and it's far from clear that it is, that this isn't classified information, and just generally leaking stuff that's supposed to be secret, but isn't formally classified. Is typically not a crime. Orin Kerr had a thread about this. There's some possible statutory hook, but it's far from clear. Even if that's not a crime, if you get the FBI involved, you know, you know, you get people, you know, being asked in these, in these, uh, in these ways. Lying about it would be a crime, um, you know.

[00:41:33] [Will] And it would be a crime under 18 U.S.C. § 1001.

[00:41:36] [Dan] Yeah, there's actually a couple overlapping, uh, things, but yeah, that would be the most obvious one.

[00:41:42] [Will] And that—so, but it has to be material to something. So the theory of materiality would be the Court has the power to decide whether to fire or discipline an employee, and so if you lie to the Court about that fact, that's a crime. Is that the theory?

[00:41:57] [Dan] Yeah. I mean, so it has to be material to a matter within the jurisdiction of the judicial branch.

[00:42:04] [Will] Right. I guess the question is, does jurisdiction of the judicial branch only include deciding cases, or does that include like personnel questions, like discipline.

[00:42:13] [Dan] It seems like it should have to, but yeah, maybe it doesn't. And so are they going to be—are their clerks going to be required to consent to these interviews on pain of being fired?

[00:42:25] [Will] Well, but even then, if you're a justice, do you require your clerks to consent to the interview? What if—do you let them have a lawyer? Do you encourage them to lawyer up? What if it's one of the clerks who's already been attacked by the right-wing Twitter mob? Do you just say, sorry, I expect you to—

[00:42:39] [Dan] If I were that person, I would just say, look, I'm not going to do this. People are accusing me of this stuff.

[00:42:45] [Will] Yeah. And would you expect to keep your job if you did that?

[00:42:47] [Dan] I don't know. So someone sent me this case on Twitter, which said—now I don't have the case cite in front of me, but that if you're a public employee and you're threatened with loss of your job if you don't consent to an interview, then that will be treated as coercion, and so it can't be used against you in a subsequent criminal prosecution.

[00:43:10] [Will] Yeah. Although they could do immunity grants. I mean, if they wanted to, they could give—and then—

[00:43:16] [Dan] Use and derivative use immunity.

[00:43:18] [Will] Right. They say, well, we're not gonna—we are gonna fire you, but we're not gonna prosecute you for what you say.

[00:43:24] [Dan] Yeah. But I don't even think they need to do that up front. I think the point is just that they'd say, we're gonna fire you, and if you don't do it, it's not gonna—you know, yes, under case law, it can't be used against you. Sorry, if you do it, it can't be used against you, but you are going to lose your job. And so my guess is that's certainly what the Chief Justice is going to want to do. I just cannot imagine how livid he must be for someone who cares a lot about the kind of institution. And I remember when I was clerking, there's this kind of orientation for law clerks, and he would always show up to that and tell some cheesy story about how, when I was a clerk, I remember another clerk accidentally said something to their roommate, and that person found out about it, so you got to be really—I don't remember the details, but kind of like some story meant to impress upon you that it's really important to keep all this stuff secret.

[00:44:17] [Will] So I agree. I'm sure he's livid, but I also think he's got to be aware that depending on how you handle it, the investigation itself could tear the Court apart more than the leak. I mean, exactly. I mean, so I got to assume actually that he and the justices are going to talk about what—collectively about what they're okay with as an investigation. Are they okay with collectively making their clerks answer questions? And if they're not, I bet they won't. And I was struck by his statement, which is kind of very protective of the Court staff, right? And his sort of media public statement is about how loyal everyone—I mean, simultaneously, it seems to sort of imply he thinks the leak is from inside the building, because he talks about it being a breach of the trust of the Court, which wouldn't be true of the, you know, the somebody found it on the subway theory.

[00:45:01] [Dan] Trash theory.

[00:45:02] [Will] Yeah, or the hackers. But at the same time, it's very protective, and you've of course got to know that, like, doing, you know, launching a witch hunt, um, inside the building is, yeah, essentially—

[00:45:14] [Dan] Yeah, it's going to be a weird time to be working at the Court, I think, for the next, next couple months, at a time when I'm sure tensions are already unbelievably high. You know what it's like to, you know, be a clerk at the Court. I think changes a lot depending on the term and how divisive some of the cases are. And there's terms involving abortion cases that have been described as just incredibly fraught, with the liberal clerks and the conservative clerks borderline getting into fistfights. And there's other terms, like my term, we had some stuff that people cared about, but nothing quite on that order. Everybody kind of got along. This is going to amp up. If tensions were at 11, now they're at like 14. Which is not to say that's the most important thing. A lot more people are affected by this who are not Supreme Court law clerks who have to deal with some discomfort at their job, but just saying.

[00:46:08] [Will] I just have so many thoughts still. So I will say though, I mean, I understand the narrative of the leak is not the most important thing, the decision's the most important thing, et cetera, et cetera. But I mean, this is how norms get destroyed, is people decide in some particular case, maybe correctly, that of course the object-level question is just so much more important than the procedure-level question, so screw the procedure. And this is how norms get destroyed. And maybe that's just because norms actually just don't matter very much compared to substance, but I feel like this is an important moment for that kind of thing.

[00:46:44] [Dan] Yeah. I mean, it's easy to believe this won't be the last time this happens, once this kind of floodgate is opened. I mean, they may make it harder. They may come up with a very OpSec—

[00:46:55] [Will] I bet it becomes harder to print opinions. I bet either you have to do everything on an iPad or you print it on a special computer that watermarks it or something. Maybe there are going to be searches of your bag when you walk out of the building.

[00:47:12] [Dan] That would be crazy.

[00:47:15] [Will] So can I ask just a couple more procedural questions that I think people will expect us to know the answers to? Who has the power to fire a law clerk? Do you know if—is it the Chief?

[00:47:25] [Dan] I mean, in terms of de facto versus de jure, I mean, I believe the Chief Justice has the kind of de jure power to do that, that technically law clerks are under the supervision—

[00:47:38] [Will] They're court employees ultimately.

[00:47:41] [Dan] Yeah.

[00:47:41] [Will] So if the Chief wanted to say everybody has to submit to an uncounseled interview with the Supreme Court Police, or you're fired. De jure, a justice couldn't stop that. Is that the theory?

[00:47:56] [Dan] I believe that to be the case, but I think in practical terms, there's no way that he could do that. Right?

[00:48:01] [Will] That would be true.

[00:48:04] [Dan] I mean, ultimately, the other justices would just say, I get to pick my own staff.

[00:48:10] [Will] Right. You don't get to—I assume the consequences, the public dissent would just be so devastating that. And what about—what about if it's not a law clerk? Like, if—I don't think it's true, but there are theories that the leak could be a justice or could be, you know, family member of a justice, things like that.

[00:48:26] [Dan] And I think, you know, we probably both believe that justices do leak sometimes. Not necessarily this way, but they talk to reporters. And, you know, there was reason to think maybe Justice Ginsburg was being a little chatty with some reporters. And, you know, yeah. If it's a justice, what?

[00:48:44] [Will] What do you think the Court does? Suppose you launch an investigation. I suppose it's very quickly clear, either they admit it or it's very quickly clear that the leaker was a justice. Is there anything the rest of the Court can do about that? Would they even—

[00:48:59] [Dan] No, they have no power.

[00:49:00] [Will] Would they publicly admonish that person, or would that be so embarrassing that they would just—

[00:49:04] [Dan] I think they would hush it up. I think they would hush it up, yeah. There's nothing you can do about it. I mean, it's not clear to me at all that this is even remotely impeachable. Even if it were, there's not going to be supermajority support in Congress, in the Senate, to remove such a person, either it's a conservative justice or it's a liberal justice. Yeah. And so I cannot imagine they're going to let—

[00:49:39] [Will] Are those the only choices? So on the lower courts, sometimes judges discipline other judges. A bankruptcy judge gets caught doing something shady, the Seventh Circuit Judicial Council will remove him from hearing cases for a while.

[00:49:52] [Dan] Yeah, the bankruptcy judges are not Article III judges.

[00:49:55] [Will] Even a district judge. I think this even happens to district judges.

[00:49:57] [Dan] Yeah, but there isn't a higher court that has some kind of, you know, even arguable supervisory power to do that. Um, I don't know. I mean, it would be kind of unprecedented territory, at least if the other justices were to say like, we're not letting, you know, Justice, you know, whoever.

[00:50:16] [Will] Well, kind of. So I know of two. So there was a—there's a case about this from the 10th Circuit Judicial Council, uh, Chandler, from like the Warren Court, Burger Court era, where they did—where the 10th Circuit removed some district judge from hearing cases, and Justice Black and Justice Douglas dissented. This was an Article III violation, and there's a whole back and forth. And then there was this related incident that I don't think ever formally happened, but I think it's pretty well-sourced, that when Justice—in the last portion of Justice Douglas's career, after he'd had a stroke and had initially planned to resign, but then decided not to, that some critical mass of the other justices got together and agreed not to issue any decisions in which his was the dispositive vote. And just either hold them until he left or—and I think some justices then dissented from that and said it was a violation of Article III, but. So you can imagine that—

[00:51:05] [Dan] That's a little different though, because it's more just like them saying, look, well, I'm not going to sign off on anything while he's—

[00:51:12] [Will] But you could refuse to circulate opinions to the—if there's a justice who's just badly behaved, you could say, you're cut out. You can vote, but for now—

[00:51:20] [Dan] I don't know if you could bar them from the courtroom though and say, you're not allowed to hear these cases.

[00:51:25] [Will] Wouldn't it be the Supreme Court Marshal who would decide?

[00:51:27] [Dan] No, I can't—I don't think the Supreme Court Marshal would have—has the power to physically bar another—a justice of the Supreme Court of the United States from the courtroom.

[00:51:35] [Will] Even if the other eight say "don't let them in?"

[00:51:38] [Dan] Uh, I think that would be—well, that's interesting. Kind of makes you like think about the Sergeant at Arms in Congress, like who is allowed to like arrest members of—uh, yeah, I don't know.

[00:51:50] [Will] Obviously it'd be very destructive to the Court to go down this at all. So I tend to agree.

[00:51:54] [Dan] I cannot imagine that even if, you know, one of them is like, oh yeah, that was me, that it's gonna happen. But I also just—I don't, I don't know if a justice would do it in this way. I think they might talk to a reporter, but I don't know whether they would actually just print the opinion. But some other weird stuff—I mean, so this is the first circulated opinion dated February. Why is this the one that gets leaked? There may well have been—it's possible they haven't been circulated, but—and maybe that's possible. It's May now, but maybe there's been subsequent revisions to the opinion. Usually there's kind of people write dissents and other people revise, and there's a lot of back and forth. Why is the February opinion getting leaked in May? Unclear. That kind of—some people say, well, maybe that gives more credence to the—like this was not an insider. Or at least not a law clerk who would have had access to whatever the most current one was, although maybe someone deliberately does that in order to cast some doubt.

[00:52:53] [Will] Yeah, I agree. And this is another example of, you know, people in the building obviously know whether this is the current draft or not. We don't know. We're assuming it's not, but who knows?

[00:53:01] [Dan] This is a place where just some little leaks would actually be quite helpful. If someone were to say like, yeah, this was—there's been four other drafts since then. But there's also weird stuff could be happening. It wouldn't have surprised me if someone had said, in this case, Justice Alito did not circulate his majority opinion until the other four conservatives had signed off on it. Sometimes weird stuff like that happens where people kind of keep things close.

[00:53:27] [Will] It is true this opinion has a number of features in it that are sort of designed, it seems like, to help get other justices on board. People have remarked on several—there's some callouts to some points that Justice Barrett made during oral argument are specifically highlighted in the opinion.

[00:53:44] [Dan] Isn't there a cite to Justice Gorsuch's book?

[00:53:46] [Will] There's a cite to Justice Gorsuch's book, A Republic, If You Can Keep It. There's a long footnote listing all of the times the Supreme Court overruled precedent that libs like, which is similar to a list that Justice Kavanaugh had in a concurring opinion a couple years ago in Ramos v. Louisiana. Now, again, you might just put those things in an opinion—

[00:54:07] [Dan] And in his oral argument question.

[00:54:07] [Will] Yeah, exactly. But you might, you know, yeah, it's just, it's notable the way it's written. Like, if you told me this was the final draft, I'd say like, oh yeah, checks out. Yeah, it has a couple typos, but—

[00:54:17] [Dan] And there's no references to other opinions, you know. So this is presumably the first thing circulated. That's normally how it works. Majority gets circulated, other people write their concurrences, dissents, whatever, and then those references get incorporated. Yeah. So very mysterious. And then the question is, how much of the public debate is going to be about the process part, which I think conservatives prefer? Because the substance—I think the substance—I think it is fair to say the substance is not popular in terms of majority support in the United States. Now, it's very popular in some states, right?

[00:54:52] [Will] I'm not actually sure that's true, but I think so.

[00:54:55] [Dan] At least in some polls, you see 60%, 70% support for Roe.

[00:55:00] [Will] Yes. But if you then ask questions like, do you support a constitution—if you ask specific questions, you often get a majority that clearly supports a right to abortion in cases of rape, incest, serious health risks to the mother.

[00:55:16] [Dan] And maybe very early in pregnancy.

[00:55:18] [Will] And maybe very early.

[00:55:19] [Dan] I think a lot of opposition to late-term. I mean, for what it's worth, I mean, the original Roe opinion, which had kind of a trimester framework, probably captures where a lot of the public is, where the median sentiment might be.

[00:55:35] [Will] Yeah. I mean, it's funny also, if we had a more healthy politics, it's not that hard to imagine Congress passing a statute that's a compromise statute that both protects the right to abortion in the cases where it's really popular and bans abortion in the cases where it's unpopular, and then has some wiggle room in the cases where people are split. There's no rational reason that couldn't get—like, couldn't be a voice vote in both houses, except that the politics are such that nobody would be willing to do that.

[00:56:02] [Dan] Yeah. And now, even if Democrats were able to push through a kind of bill protecting abortion, I think it's very plausible that that would be struck down by the conservative majority as kind of beyond Congress's enumerated powers, maybe.

[00:56:18] [Will] It'd be interesting. My guess is that they could pick up—if you assume that there are—my guess is that it would be upheld, but it would not be—

[00:56:26] [Dan] Yeah. I mean, Congress—the Supreme Court never struck down Congress's ban on late-term abortions. They never struck it down on enumerated powers grounds.

[00:56:38] [Will] Right. Right. Although my understanding is that there was a sort of strategic decision not to bring that challenge to the Court. Even if Justice Thomas signaled that he would be happy to strike it down and his vote plus the other 4 dissenters would've been enough to win a subsequent case. My understanding is there was a decision that the left hates federalism and so it's not—

[00:57:00] [Dan] Interesting. So yeah, I mean, we could keep talking about this for a long time, but I don't know if we've hit the big points.

[00:57:08] [Will] Marginal returns. I mean, I suspect we'll learn more. I suspect within two weeks there'll be some sort of leak about the investigation, either that there isn't much of one or that people are being held in the Supreme Court dungeon until they agree to confess.

[00:57:26] [Dan] Yeah. And I think we will probably circle back and say more about the underlying constitutional question and the merits of the case when we actually have the decision, right? Right now, we know this decision reflects initial tentative views of one person. Nobody has joined it yet. Nobody—based on the document, nobody else had joined it. Hadn't yet had to respond to concurrences and dissents, you know. And so I think that will be the moment to really dig into it. But, you know, for now, obviously, this is a hugely consequential change to American law, and I think to American life in one sense, and it's going to have very profound implications. It's going to change the state of play in a bunch of states which are geared up to completely ban abortion. It's going to affect a lot of people's lives, and it will affect our politics in some profound way, though exactly how remains to be seen.

[00:58:28] [Will] Yeah, I think that's right.

[00:58:29] [Dan] So we had some other cases we wanted to talk about. But I think we had enough to say here that maybe we'll postpone that. But I at least am a little bit freer now, and so hopefully we can circle back and catch up on some other opinions in an episode that will be hopefully sooner than a month.

[00:58:47] [Will] I hope so, because one of them cited me, Dan, and you managed to—

[00:58:50] [Dan] I know. Liquidation.

[00:58:51] [Will] Eat up all our time, so I didn't even get to brag about that.

[00:58:54] [Dan] Yeah, well, I'm sure you will find an opportunity to do so, and you just did, by the way. But now you'll get two. There you go. Thanks very much for listening. Thanks very much for tolerating our long delays between episodes. Please check out our website, dividedargument.com. You will find transcripts of our episodes within usually a couple days after the episodes are released. Go to store.dividedargument.com, and you will find merchandise. Please rate and review us on the Apple Podcast Store or wherever you get your podcasts. Send it to people. Again, you know, we've been doing this for about a year, but we're still in the growth phase. I think there's a lot more people who would be interested in listening and have not yet discovered the show. So anything you can do to help along those grounds would be great. You can call and leave us a voicemail at 314-649-3790, and you can send us an email at pod@dividedargument.com. We don't do a great job of responding to those, but we do manage to work some of them into the show here and there.

[01:00:02] [Will] Thanks to the Constitutional Law Institute for sponsoring our endeavors. And if we don't record another episode when we promised, it's because we are being held in the Supreme Court dungeon under martial law.