Shmoland

[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. Will, we finally have a lot of opinions to deal with, some of which have been out for a little while, but we needed to take a minute, try to process them, and figure out what we had to say. So we got a lot to talk about, so maybe we should just jump in. What do you think?

[00:00:44] [Will] Sounds good. March 11th, already 5 opinions from the Court.

[00:00:47] [Dan] Yeah. So last time we talked about Unicolors, that super exciting copyright case.

[00:00:54] [Will] The ornithology case.

[00:00:55] [Dan] Yes. The devastating Justice Breyer opinion. But now we've got some slightly hotter ones to talk about, and I don't really know where to start on this. What do you think? I bet you have an instinct as to what merits the marquee treatment of the things that the Court has done in the last week or so.

[00:01:13] [Will] Well, I think it's got to be the state secrets case, or one of the two state secrets cases, United States v. Zubaydah, in part because It has one of the great dissenting duos of the current court.

[00:01:25] [Dan] Yes, that we're— the unexpected dissenting duo we see sometimes. The unlikely—what do you call that? An unlikely partnership. We'll get there. And it's also—this is also the longest opinion. So maybe that's a good place to start.

[00:01:39] [Will] By Justice Breyer again. I'm just saying.

[00:01:41] [Dan] Justice Breyer, yep. Okay. So where do we start? This is a case about the state secrets doctrine.

[00:01:50] [Will] Yes.

[00:01:51] [Dan] And maybe should we explain that, or should we set up the facts first?

[00:01:55] [Will] We'll set the facts first, and we should oversimplify. I mean, so this is a case— Mr. Zubaydah is a Guantanamo Bay detainee who was tortured by U.S. forces in Europe, including probably in Poland.

[00:02:06] [Dan] And Asia, we think, too, in Thailand.

[00:02:09] [Will] Right. Yes. Yes, tortured all over the globe. And there's now a Polish legal proceeding in which the Polish government would like evidence about exactly what happened to him while he was in Poland. And the Polish government is trying to use a US statute—the Polish government is trying to get evidence about that that can apparently be produced pursuant to a US statute that allows the production of discovery for use in a foreign proceeding. Question is whether to find out some information from Mr. Zubaydah about what happened to him.

[00:02:42] [Dan] I don't think that's quite right.

[00:02:43] [Will] Okay. There's a federal statute that allows—sometimes allows the evidence to be sent to a foreign legal proceeding, and Zubaydah's lawyers are trying to get evidence about what happened to him sent to Poland.

[00:02:58] [Dan] Yeah. So it's not like a full civil case. There's this—it's basically an ex parte discovery application.

[00:03:05] [Will] Under 28 U.S.C. 1782.

[00:03:08] [Dan] Yes, that well-known statute that we discuss all the time.

[00:03:12] [Will] I want to get into the civil procedure of it. I believe Mr. Zubaydah's lawyers want to serve the contractors who tortured him with subpoenas for various evidence that they will send over.

[00:03:22] [Dan] Yeah, and just as I understand it, there's different pieces of information that are potentially out there, and one is where this torture happened, right? We think it's in Poland, has never been confirmed by the government that it's in Poland. And the other thing is kind of like, what happened, which is different. And as I understand it, the what happened question, that's not necessarily secret or at least classified, but the question about where this happened is something that has never been confirmed by the government.

[00:03:50] [Will] Yeah, I think, I mean, yeah, this whole, I mean, I'll just say now, the elements of secrecy here are a little bit kind of farcical in a weird way, because we know a lot about what happened here. A lot of these things have been declassified now in our slow reckoning with the government's behavior here. But one version of it is, we all know it's Poland, but the government's never officially confirmed it. And that's important. That has some magical power that the government has some interest in avoiding saying the magic words. And maybe we don't know for sure. I gather from Poland's point of view, we don't know for sure what happened in Poland. We know he was tortured. And we know he was held in Poland. We don't know for sure—

[00:04:27] [Dan] Well, we think we know he was held in Poland.

[00:04:29] [Will] We think we know, but maybe we need more confirmation. Even if we knew he was held in Poland, there's also some question of linking up the worst of the things that were done to him with where he was at the time.

[00:04:39] [Dan] And by the way, we can't even clearly ask him because he's under—he's in Guantanamo. He's under very intense restrictions about the way he's allowed to communicate. The government, well, has sort of suggested there might be a way to ask him. We'll get to that in the analysis, but this isn't just kind of your ordinary litigant where you can just sort of get that person to write a declaration because he's been tortured. We don't know his mental state, and he's not really able to communicate with the outside world basically at all.

[00:05:08] [Will] I mean, yeah, he may well not remember nearly as well. I mean, he was, yeah, uh, not in a good place, obviously.

[00:05:14] [Dan] Yeah.

[00:05:15] [Will] Is this also just the time to mention—so part of what was fascinating with this case is that argument, you know, the justices, I think, have not had a case dealing with the Guantanamo Bay detentions in a long time, and it seemed like they were not fully up to speed on what was going on there, how all that worked. So at various points in argument, Justice Breyer questioned, why is anybody left in Guantanamo? Didn't we—isn't the war on terror over? It seemed to be news to him there were still people there. There's still a lot of people there. That was a little alarming. And then, has anybody thought about filing a habeas petition? Why doesn't somebody file a habeas petition? Yes, he's had a habeas petition pending for like a decade or longer. And similar to questions about, well, can't we just ask your client? Why is your client—And the lawyers had to remind the government that they basically can't talk to their client and he's maybe not capable of communicating.

[00:05:58] [Dan] And Justice Kavanaugh's going to be deeply familiar with all this stuff because this has been kicking around in the D.C. Circuit for really long. I don't know how many cases he would have dealt with on Guantanamo stuff, but presumably a lot.

[00:06:09] [Will] And he made an effort to resuscitate, you know, when Justice Breyer suggested that maybe everybody should be released from Guantanamo, Justice Kavanaugh was the one to leap in an argument and remind the government what its argument was for why it still had sitting authority to detain people. But basically, after the Court in Boumediene, you know, now 15 years ago, declared that it was really, really important there be habeas corpus jurisdiction over Guantanamo, it then proceeded to not at all supervise the habeas corpus jurisdiction over Guantanamo. And the D.C. Circuit's been very pro-government in mostly keeping everybody detained. The Court appears to have forgotten about them until now.

[00:06:42] [Dan] All right. So then let's set up the legal issue. So he's trying to get this discovery. Zubaydah is trying to get this discovery, and the government doesn't want to provide it. And the government is not, like, relying on some statute that just says, like, this is secret and you can't get it. The government is relying on something else that's a little weird, right? The state secrets privilege. What is this?

[00:07:07] [Will] The state secrets privilege.

[00:07:08] [Dan] Where does this come from? Is this a thing? Does this exist?

[00:07:12] [Will] Good question. The state secrets privilege is At least a relatively longstanding privilege that for certain things that would otherwise be the government's obligation to disclose, there's just an unwritten exception for—it's not exactly the same as classified information, it's not exactly the same as any of the technical categories, but important government secrets. I think even some of the justices would ground that in Article II. So they'd say it's a constitutional privilege, sort of akin to executive privilege. Executive privilege is more about the internal deliberations of the executive branch, and the state secrets privilege would be more about the substantive executive power to defend the country or something. I'm not sure there is such power, but a lot of people think there is.

[00:07:55] [Will] So it might come from the Constitution. It might just be more like the attorney-client privilege, like a kind of common law privilege that has never been abrogated.

[00:08:05] [Dan] And so presumably there is some kind of residual authority of courts to recognize Rules of evidence, I guess.

[00:08:12] [Will] Right.

[00:08:12] [Dan] That would be the justification.

[00:08:14] [Will] The idea would be, yes, that, you know, before—we didn't have rules of evidence until relatively recently in American history. And then the extent to which the rules of evidence permit various common law privileges to apply is a classic evidence law question.

[00:08:28] [Dan] Okay. So there's this kind of mysterious, ill-defined state secrets privilege. It's judicially created, or, you know, maybe it has a more legitimate justification, maybe it doesn't. But we don't have necessarily clear you know, strict guidance on how it should work. And part of exactly how it should work is something that the justices are talking about here. But the basic idea is someone is trying to get some information, trying to do something in court. Government comes in and says, look, this implicates state secrets, would endanger national security. And then the court will make some finding. And exactly what that looks like in the analysis the court is supposed to apply is subject to a little bit of disagreement. But then the court will say, uh, possibly, yeah, we think, you know, you don't have an entitlement to this information. Sorry, go away.

[00:09:12] [Will] Yeah, right. And then, you know, it's a classic balancing test of like, do you really, really need this information? Well, even if you do, is there some reasonable probability, reasonable danger that military secrets are at stake? Well then, sorry, we're just not gonna let you do that.

[00:09:26] [Dan] Yeah. And so here, you know, uh, Zubaydah wants to depose these 2 contractors that were, you know, not, they were not employees of the government, but they were contracted by the CIA to perform this enhanced interrogation, as we might say. That's the polite phrase.

[00:09:46] [Will] I think a lot of people call it, do we call it torture now, Dan?

[00:09:48] [Dan] Well, you know. Wants to depose them to get information about what happened, right? Like to sort of say, what exactly happened to Zubaydah? What did you do? And the government doesn't want to turn this over, the argument being that, you know, we've never confirmed that this happened in Poland, and this might lead to us, the government, or someone, you know, who'd work for the government, having to confirm that, and that would endanger national security by endangering relationships with other countries and so forth.

[00:10:23] [Will] Right. Proceeding is happening in Poland, right? And various Polish officials, including like the ex-president of Poland have all said it happened in Poland. So there's a way in which like this isn't like a military secret, like we're gonna tell people and then they're suddenly gonna know the password to log in to the president's computer or something, right? Like everybody I think knows it was in Poland. A real kick in the teeth if it turns out it was not in Poland, it was in the Ukraine.

[00:10:47] [Dan] But I think maybe the argument is, you know, the government kind of officially having to acknowledge it would, you know, lead it to be less able to make credible commitments to other countries in the future or something like that.

[00:10:58] [Will] I think that's it. I think the argument is When we set these black sites up in Poland in the first place, I mean, the whole point being to engage in shady and illegal things and avoid detection and jurisdiction, we promised the other countries we will never ever tell, you know, that it was here. And—

[00:11:14] [Dan] I think the polite word is elimination challenge sites, Will.

[00:11:18] [Will] And we're gonna keep that damn promise, you know, even if nobody left in Poland cares, because that way the next time we try to ask some other country where we want to set up our new black sites, they'll know that we, we really go to the mat to protect their—I think that's the national security interest, as I understand it, is a credible commitment to future partners in clandestine activities.

[00:11:40] [Dan] Yeah. Okay. So that's the setup. This had worked its way through the court system, and the Ninth Circuit had said state secrets privilege does not apply. There were a lot of dissents in response to petition for rehearing en banc, and now it gets to the Court. And we're gonna have a majority opinion by Justice Breyer, that's—for which there's a small chunk of it that is a plurality and not a majority, but joined in full by Chief Justice Roberts, joined in most by Justices Kavanaugh and Barrett, and joined in part by Justices Thomas and Alito.

[00:12:19] [Will] And part by Kagan.

[00:12:21] [Dan] Yes, sorry.

[00:12:21] [Will] Different parts, but yes.

[00:12:22] [Dan] And then we have a concurrence by Thomas, we have a partial concurrence by Kavanaugh, joined by Barrett. We have a concurrence in part and dissent in part by Justice Kagan. And then we have a dissent by Justice Gorsuch, joined by Justice Sotomayor.

[00:12:37] [Will] And the dissent is the most interesting part. I think the rest we can kind of clear through.

[00:12:43] [Dan] Yeah. Well, I mean, so the bottom line is here at the Court, the privilege applies, right?

[00:12:49] [Will] The privilege applies, but maybe he can try again. We're not saying for sure. Right. So the Court definitely agrees that the 9th Circuit was wrong. The 9th Circuit had said the privilege doesn't apply because this is already public, and the privilege doesn't apply because these contractors don't work for the government anymore. So even if they say it's Poland, it's not like the US is saying it's Poland. And the Court rejects both those views. You can't make the contractors say it's Poland even though everybody knows it's—Justice Kagan spent a lot of time at argument trying to float a kind of compromise solution in which we don't call it Poland, we call it Shmoland or some other place. We say the place, we just never say what it is, but like the place. But we do like nail down exactly what happened during these dates. And then if everybody knows that's Poland, it's not because we told them. And as I read it, the majority doesn't reject that possibility. They just say like, that's not what Zubaydah asked for in this litigation. And they're not prejudging whether or not he can go back and try for the Kagan maneuver again.

[00:13:45] [Dan] Yes. But the Court is saying that this, this action, this particular action should be dismissed, right?

[00:13:52] [Will] Yeah, this action should be dismissed.

[00:13:53] [Dan] And there's no remand. There's no remand to go back and kind of take a closer look and see if we can tweak it in such a way as to get the information he wants, but not, you know, the information about confirming or denying Poland.

[00:14:06] [Will] Right, because this is clearly a Poland case, and then they're saying Poland, still a secret. Despite this, I guess this podcast is going to be classified or something, but Poland is still a secret. But so his case is dismissed, but maybe he and his lawyers can sort of start over. I was not clear whether they can or not, but I'm sure they're reading Justice Kagan's concurrence very carefully and trying to figure it out. And Thomas, Alito, and Alito would have gone farther. They would have sort of rejected him even at kind of an earlier stage.

[00:14:33] [Dan] Okay. You want to talk about the dissent? Maybe we should talk about the dissent and then we can kind of like work backwards. From that, right?

[00:14:40] [Will] Yeah. Okay.

[00:14:41] [Dan] We have the, you know, mostly majority sort of saying, look, this would, this would tend to, you know, the responses would tend to confirm or deny the existence of the site in Poland. So short version of the opinion that's mostly a majority is just because the specific information that he's seeking, the way he's seeking it, would tend to confirm or deny the existence of the site in Poland. And because his need for the information as the Court sees it is not the that great, and because the, you know, national security considerations are important, all those things is, we can't get the information.

[00:15:19] [Will] Yep.

[00:15:19] [Dan] So, okay. But then let's go to the other extreme, and let's talk about this dissent, very powerful, heated dissent, joined by Justice Gorsuch, who's arguably at least, you know, one of, or maybe, you know, one of the 2 most conservative justices, just depending on how you measure these things, and then joined by Justice Sotomayor, who is by, I think, by all accounts, the most liberal justice on the Court, and it's a very long dissent sort of saying that this is wrong. So tell me, you know, channel your Justice Gorsuch and tell me what Justice Gorsuch is saying, Will.

[00:15:53] [Will] Yeah, well, so the first sentence gives you a sense of where we're going. "There comes a point where we should not be ignorant as judges of what we know to be true as citizens."

[00:16:01] [Dan] He likes this phrasing of like what we know to be true. Do you remember Ramos v. Louisiana?

[00:16:06] [Will] Yeah.

[00:16:07] [Dan] Uh, he uses that phrase like several times. I don't really know if it's like a reference to something that I'm not getting. But it's like become his catchphrase.

[00:16:14] [Will] I think there is a friendly quote, a Judge Friendly quote that's kind of like this. But no, it's clearly—I mean, it's basically core to his style of judging, right? That there's—Justice Gorsuch's view—

[00:16:25] [Dan] Call it like you see it, like don't pretend that things are true when they're not true or something like that.

[00:16:29] [Will] Well, and sort of, yeah, fundamentally the law comes from the Constitution and the text, like these fundamental documents, right? The judges have relatively little authority to change if they don't like it. And then there are in the law all these foggy doctrines whose purpose is to keep judges away from the truth in the text, like precedent, but also like the state secrets doctrine. And he's impatient with these things, right? He wants to clear them away and get back to fundamentals. And it's— in some sense, we call this a surprising duo. At some point, this is going to become the least surprising duo on the Court, I think. Because Justice Gorsuch is very methodologically conservative, right? He's one of the most originalist, textualist, anti-precedent judges in the Court. And Justice Sotomayor is liberal in a sort of different sense. But when there's this intersection of a constitutional right, like the right to trial by jury or the Fourth Amendment or something, where the original meaning can be read in a really individualistic, rights-protecting way, I think we're often going to see Justice Gorsuch and Justice Sotomayor kind of meet in the back there as the 2 people most willing to say, let's give this some new—

[00:17:38] [Dan] Yeah. And so as I read Justice Gorsuch, he's not saying there's no such privilege, I think, but he's saying it's limited to cases where if you look at the Constitution, this would really exceed the powers granted to the other branches. Like, this would actually—requiring information would actually violate the separation of powers. Am I reading that correctly?

[00:17:59] [Will] I think that's right. I mean, I guess I think there's both—there's at least like 3 levels going on. This opinion is not as technically precise as some Justice Gorsuch opinions, I think. I mean, it is, but I think, yeah, he thinks the state secrets privilege is narrower in terms of where it comes from and what its historical basis is than a lot of people think. I think he also thinks judges—like, the Court's track record of the state secrets doctrine is not very good. So he goes back, you know, one of the original cases that produces the state secrets doctrine, United States v. Reynolds, the one where they deferred to the government, kept something secret. And he says, in retrospect, that was probably a mistake, and cites some later accounts that suggest that—

[00:18:39] [Dan] They were just kind of covering up their own negligence.

[00:18:42] [Will] Right.

[00:18:42] [Dan] Not great. Not great.

[00:18:43] [Will] So I take it that's like an additional point. It's like, it has less scope, and then also we should be aware that we've been chumps, we've been owned by the government in the past, so we shouldn't—just like blindly accept these claims. And then as to this case in particular, he thinks that the government really is just trying to avoid embarrassment, he says, and that's not a state secret.

[00:19:03] [Dan] Yes. And so one paragraph that is, you know, I zeroed in on that goes, you know, more to the kind of maybe, I don't know which order we're talking about the levels, but the level of, you know, how broad is this privilege to begin with rather than, and then there's the other level of we should really be careful to make sure that this isn't just the government kind of seeking to avoid embarrassment. But he says, none of this suggests that the state secrets privilege is inconsistent with separation of powers. It is simply that the privilege is no blunderbuss, and courts may not flee from the field at its mere display. Instead, when the executive seeks to withhold every man's evidence from a judicial proceeding, thanks to the powers it enjoys under Article II, that claim must be carefully assessed under the competing powers Articles I and III have vested in Congress and the judiciary. And he's coming at it with this, that litigants are entitled to kind of every man's evidence. Basically, if there's evidence out there that's relevant, probative in your case, you know, as a presumption, you should be entitled to it. And there needs to be kind of like a fairly strong justification for that not to apply.

[00:20:05] [Will] Yeah, right, exactly. So he's sort of—yeah, that's exactly right. So he's trying to make clear it's not just one government interest or one constitutional interest sort of on one side of the balance and nothing else on the other side. And once he sets it up that way, of course, you're primed to be a lot less deferential. I'm not positive I agree with Justice Gorsuch on the first level, that the state secrets doctrine can only come from Article II. I, and maybe you, are more willing to accept the idea that there might be some unwritten general law doctrines that still are enforced in federal courts, even if they don't come direct—if they do have the right historical pedigree and so on. So I'm just not totally sold that it has to be an Article II claim to be a state secret.

[00:20:47] [Dan] Yeah. But I guess the question would be, when are courts allowed to recognize new ones? Because this certainly doesn't have the same historical pedigree as, I don't know, priest-penitent privilege, something like that.

[00:21:00] [Will] I think there are—I mean, there's a fight in the opinions between Justice Thomas and Justice Gorsuch about whether or not the state secrets privilege was refuted by Chief Justice Marshall during the treason trial of Aaron Burr. I don't think Justice Gorsuch has obviously carried the day on that question. Maybe he's right about that, but I'm not ready to say that the King of England could never protect state secrets under common law. I don't know. But I think his other points are still very well taken. I like the tone of the—I like the tone and the moves of the dissent, even if I'm not totally sure whether I'm starting in the same place. I admire it. I don't know if I buy it. Maybe. But I admire it. One other thing I admire about it is—I don't know if you remember this, but when Justice Gorsuch was—before he was a judge, he was in the Bush White House in the Department of Justice in 2005, 2006.

[00:21:47] [Dan] Yeah, he was in the Office of Legal Policy. Am I remembering that right?

[00:21:51] [Will] He was the principal deputy to the Associate Attorney General and managed the Civil Division, I think.

[00:21:56] [Dan] Okay. Oh, he managed the Civil Division. All right.

[00:21:57] [Will] One of the complaints during his confirmation hearing was that he had been involved in defending a bunch of the terror litigation in the Bush administration. You know, like, there—2005 was when we were still, you know, it was pre-Boumediene. There was like early stages of like, what is the jurisdiction over Guantanamo? When you're that high up in the government, it's always unclear what's your personal responsibility, but he had at least some involvement in, you know, disclosure of the torture at Abu Ghraib and, you know, rendition litigation and so on, and not on the side he's on now.

[00:22:26] [Dan] Yeah, that's interesting. He's really writing this like he's kind of a real skeptic, like a civil rights skeptic on the outside.

[00:22:34] [Will] Yeah. Well, I kind of wonder—he doesn't talk at all about whether that experience informs his views. I kind of wonder if it did.

[00:22:41] [Dan] I mean, it's hard to imagine that it didn't inform them in some way.

[00:22:44] [Will] Right. I mean, yeah, I guess that's what I mean is you could imagine two versions. You can imagine him thinking like, those were real state secrets. I was fighting for real state secrets back then, but at this point, this is this is all just politics. Or you could imagine thinking, boy, some of the stuff I did for my clients back then are things that I'm not sure the courts should have let us get away with. Which is sort of the Robert Jackson famously had this view in Youngstown, more or less saying, there are things that I recommended to President Roosevelt as Attorney General that I now as a judge think were wrong. So I sort of wonder if this is Gorsuch's Robert Jackson moment.

[00:23:21] [Dan] You've already sort of summarized what he said, but let me just read part of the final paragraph to really hammer home, you know, some of the rhetoric here. Basically, you know, says this case has nothing to do with fears about courts being unable to apply familiar legal tools. Really, it seems that the government wants this suit dismissed because it hopes to impede the Polish criminal investigation and to avoid, or at least delay, further embarrassment for past misdeeds. Perhaps at one level, this is easy enough to understand. The facts are hard to face. We know already that our government treated Zubaydah brutally, more than 80 waterboarding sessions, hundreds of hours of live burial, and what it calls rectal rehydration. Further evidence along the same lines may lie in the government's vaults, but as embarrassing those facts may be, there is no state secret here. And the Court's duty is to the rule of law and the search for truth. We should not let shame obscure our vision. That's pretty, pretty strong.

[00:24:12] [Will] Yeah.

[00:24:12] [Dan] But, uh, so anything else you want to say about the separate opinions. In this case, you know, Justice Kagan disagrees with the decision of the Court not to remand. So kind of a narrower, you know, you know, let's say kind of craft, kind of, you sort of already noted that, that she wanted to kind of do something a little bit narrower here. So she wanted to remand. We have a very short opinion from—Justice Kavanaugh really likes to write these kind of concurrences where he sort of is like, here's how I think we should approach these kinds of cases. Here's how I understand the relevant test to be. And he says, look, here's how I want it to work, or here's how I understand it to work. There's an assertion of the privilege at the outset by the government. The court must sort of make a threshold judicial inquiry to determine whether, you know, there's—this should be applicable. The court should then accept the assertion of privilege if the requester only has kind of a dubious need for the requested information here. And even if there's a strong need, the court should not necessarily demand to examine the evidence itself. So a fairly—I'd say a fairly deferential approach.

[00:25:28] [Will] No, I mean, I guess I just want to observe one other thing about these separate opinions, which is really just one more observation about Justice Gorsuch, which is—so as I read it, Kavanaugh and Barrett are a little bit to the right of the majority. They have a more deferential, they would sort of ensconce a more deferential version of the test. Justice Breyer doesn't quite pin it down. Thomas and Alito are definitely to the right of the majority. They would sort of cut things off at an earlier threshold, say he doesn't even need this information. If Justice Gorsuch had voted what we might call according to type, politically with those other 4 justices, Breyer's view wouldn't even be the majority. We'd have a majority opinion by Kavanaugh, I guess, or Thomas, laying out this even more deferential test. So even though it's a dissent that he has, the fact that he's there actually shifts the balance of the Court in an important way.

[00:26:13] [Dan] Yeah. And you think that opinion would've looked pretty different because they would've just said, you don't really need the information, that's the end of the story, and there wouldn't need to be more of a multi-factor kind of analysis of different things.

[00:26:24] [Will] Yeah. One of two things. They might've said that or Kavanaugh might've written it and kind of ensconced in law his kind of more absolute version of the privilege. This opinion, I think we can see as applying the existing state secrets privilege without necessarily making a lot of doctrinal changes.

[00:26:39] [Dan] Yeah, just, just explain to me why Kavanaugh—I mean, Kavanaugh still says you make some initial inquiry into need, right? And even if you really, really need it, it could still be barred, right? But that at least you do look at that at the outset, right?

[00:26:53] [Will] Yes, yes, right.

[00:26:54] [Dan] Look at the, look at the, the person seeking the information, their need for that information, and that's if they have a dubious need for it, you just can easily kick things out. Even if it is within the privilege, even compelling necessity won't be able to overturn the privilege. And so what you're saying is that's different because the courts are going to be more willing to just say, sorry, even though you really need this, this is barred.

[00:27:19] [Will] Right. Yeah. I think the point is you might have thought the test—you might have read it to say, if it's kind of a marginal state secret, and the plaintiff really, really needs it. Like, the plaintiff was tortured and is being held unlawfully, uh, and it's a pretty dumb state secret. You might have thought we would release it, and Justice Kavanaugh's saying no. Once it's a state secret at all, I don't care how much you need it. I don't care how—

[00:27:42] [Dan] Yeah, yeah, yeah, that makes sense. Okay, so Justice Breyer is using your, you know, let's put people on the left-right spectrum. Justice Breyer is to the right of Justice Kagan here. Justice Kagan is to the right of Justice Sotomayor, and then Justice Gorsuch is the one who is most playing against type.

[00:28:02] [Will] Yeah.

[00:28:02] [Dan] All right, anything else to say about this one?

[00:28:05] [Will] No.

[00:28:05] [Dan] Okay, that's good, because we got other stuff to talk about and fairly limited time, such that we're probably not going to get through everything. Could we talk about Wooden next? I don't know if this is the one you're most excited about.

[00:28:15] [Will] Definitely.

[00:28:16] [Dan] Okay, this is a fun one.

[00:28:18] [Will] This case has you written all over it, Dan.

[00:28:20] [Dan] Yeah, so this one is substantive criminal law. Which is a class that I teach to 1Ls. We've got some statutory interpretation. We've got some talk about mens rea, the classic criminal law doctrine. So there's some really fun stuff going on here. And we should try to set up the legal issue without getting too deep into the really complicated weeds. So the legal issue involves the Armed Career Criminal Act, which is a statute that the Supreme Court has probably interpreted or dealt with constitutional challenges to 50 times, like a lot, right?

[00:28:54] [Will] Yeah, 50 separate—

[00:28:55] [Dan] A lot, a lot, a lot, a lot. And there's a lot of moving pieces. We don't need to get into all that here. The question is about a specific provision that says there's a 15-year minimum, mandatory minimum, for people, for offenders who have at least 3 prior convictions for specified felonies, quote, "committed on occasions different from one another." Okay. And so now we're gonna—Justice Gorsuch later is gonna say we should call this the Occasions Clause. So this is the Occasions Clause. And what did our poor hapless criminal William Dale Wooden do? Well, he went to a storage facility, kind of like a, you know, one of those self-serve storage facilities where you get like a big little garage bay thing.

[00:29:44] [Will] Yeah. Apparently right next to his home, ironically. Which, maybe, I don't know. I don't know much about robbing storage facilities, but that's probably not—

[00:29:53] [Dan] It's probably, yeah, it's not, you know, maybe you should like go somewhere where the suspects are not gonna be quite so close at hand.

[00:29:59] [Will] Clean getaway routes.

[00:30:00] [Dan] And then they went in and broke into one of them, and then, you know, quite cleverly broke into successive storage facilities by going through the walls of each, sorry, successive units by going through the interior drywall.

[00:30:15] [Will] Yeah.

[00:30:16] [Dan] And so ultimately got stuff out of 10 different storage units.

[00:30:21] [Will] One at a time.

[00:30:23] [Dan] Yeah, not on separate days, just, you know, during one, during one run.

[00:30:27] [Will]] Yeah.

[00:30:27] [Dan] And this was, this was 10 crimes under state law. And this is just another thing to make clear, is that the, this federal Armed Career Criminal Act looks to whether you've committed things under, you know, other jurisdictions' laws. So a state law conviction can count as a predicate that can then make you eligible for greater punishment down the road if you are charged under this federal provision that makes it a crime to possess a gun for being a felon, and then it has this sentencing enhancement.

[00:30:57] [Will] Right. So here we are in 2002—sorry, 2022, looking back like 25 years ago to this time he was convicted, you know, for, for 10 counts of burglary. 10 counts of burglary in one indictment, 10 counts for 10 storage units. And we have to sort of like—now suddenly federal law cares about a question that state law didn't care about, which is like, how should we think about these 10 counts that you were convicted of? Should we think of them as 10 occasions of burglary that happened one room after another, or should we think of it as one occasion where they went from room to room to room and stole 10 people's stuff, right?

[00:31:30] [Dan] Yes. And so we've got an opinion by Justice Kagan. Justice Kagan, the kind of court's, let's say, liberal textualist. And writes a very textual opinion using kind of some of the moves that she tends to use, kind of a, a kind of appeal to common sense. What do these words mean? How would people use them? Appeal to kind of what I've called like Kaganalogies, where she kind of tries to come up with, with kind of common sense analogies to kind of, or just sort of show how we might use this word, uh, normally. And, you know, that basically the bottom line is is like, no, this is not 10 occasions. That's not how we'd use—you would use the word, right? You'd say, on one occasion, Wooden committed 10 acts of burglary, not that he committed burglary on 10 different occasions, right? Which makes sense as far as it goes. I think the harder question is exactly how we figure out in future cases what counts as a separate occasion.

[00:32:27] [Will] Yeah.

[00:32:27] [Dan] Because she doesn't want to give us like "an occasion is something that happens within a 30-minute timeframe," or "an occasion is something that happens within a half-mile radius." We don't get anything like that, right?

[00:32:38] [Will] Yeah, right. I mean, you got to kind of admire, you know, you got to admire the defense lawyers who set this one up as a cert petition. It's kind of the perfect test case, right? Like, it's technically 10 separate burglaries, but, you know, literally they don't even leave the—they don't even leave the building, right? They don't even walk through a door to get from one burglary to the next. They just plow through the wall. But you can imagine, right? Okay, suppose it's 10 houses, you know, or 10 apartments next to each other, and I go in each one.

[00:33:04] [Dan] Or he drives across town, right? Like-

[00:33:07] [Will] Yeah, exactly. 10 muggings as I sort of like drive around town on some sort of like mugging spree, it gets harder. You don't have to deal with that if you don't want to.

[00:33:14] [Dan] Yeah. So then, but we still, you know, so we are gonna have to figure out how this might work in those other cases. And so she tells us, well, the inquiry that the, you know, interpreting occasion requires is kind of multi-factored to a range of circumstances relevant to identifying episodes of of criminal activity. Timing, of course, matters. So if they're really close in time, that's probably one occasion. But if there's substantial gaps or intervening events, less likely. You looked at proximity—how far away did the two crimes occur to be—to count as one occasion or multiple occasions? And the character and relationship of the offenses may make a difference. Okay, so not perfectly clear guidance, but kind of like an appeal to common sense. Kind of like, how would you use this word? Would someone say, like, in ordinary language, like, yeah, these two things, they happen kind of within about half an hour, kind of same place, that's kind of the same occasion? Or would they say, no, like, you know, happened across town, you know, later in the day, two different occasions?

[00:34:20] [Will] Yeah. On the one hand, this is obviously unsatisfying, right? Like, it doesn't give you a lot to work with for all the the many, many versions of this that come up, and the ACCA is the kind of statute where this comes up a lot. On the other hand, maybe that's part of the design. If you think about the context this is coming up in, there's now a federal judge who's sentencing somebody for a gun crime and trying to look at their rap sheet and decide whether or not they have to give them this souped-up mandatory minimum. And one of the questions you now get to ask when you look at the rap sheet is like, okay, there are a bunch of convictions here, but should I really see you as a kind of repeat offender, or should I group these convictions together as kind of all having happened? More or less at once. And so maybe, you know, maybe in that context we don't mind as much if judges are—or at least Justice Kagan doesn't mind as much if judges are kind of like, they're going to use a little bit of judgment. It's going to be influenced in part by their sense that like, look, you just had one really bad night versus somebody who was like, no, you're clearly an armed career criminal.

[00:35:16] [Dan] Yeah. What you just said about a judge figuring this out also brings to the surface kind of a thing that's not really an issue in the case but comes up, in a footnote in Justice Gorsuch's separate opinion. He's concurring in the judgment, reaching the same outcome, but using different reasoning. But he notes there's also kind of like a potential constitutional issue here, which is that normally, you know, judges are the ones making this determination. And there's some very complicated 6th Amendment case law about when exactly a judge is allowed to find facts that kind of enhances your sentence, makes you eligible for a mandatory minimum, and when they don't—that wasn't presented in this case—there is a rule that the mere fact of a prior conviction is something that a judge can find rather than submitting to a jury. This seems maybe a little bit different.

[00:36:01] [Will] Yeah, there were some amicus briefs that argued that this was different, because it's like the fact of the convictions are—we all know what they are, but some of the understanding of how to think of them as a different occasion or not, you know, you could imagine being more of a, I don't know, a different question.

[00:36:17] [Dan] But that's not going to be an issue here. We're just going to be trying to figure out what counts, and judges, presumably, unless the Court addresses this constitutional question down the road, are going to be figuring that out. And, you know, I mean, I think that clear rules are nice. I mean, sometimes—but sometimes, you know, language isn't clear, and sometimes, you know, when, you know, we have to kind of just sort of use our common sense and sort of say, yeah, this counts, yeah, it doesn't, and that's part of the judicial task. And so I don't totally disagree with where Justice Kagan lands on this, but let's compare it to what Justice Gorsuch wants to do, and then let's circle back to Justice Kavanaugh, who in some ways is maybe responding to Justice Gorsuch. Because Justice Gorsuch wants to make a fairly interesting move here, which is he wants to rely on this thing called the rule of lenity. Which is-

[00:37:08] [Will] I've heard of it.

[00:37:08] [Dan] Yeah, you've heard of it, except it doesn't seem to do much. It's this rule that in cases of ambiguity, the kind of tie should go to the criminal defendant. When there's a criminal statute and we're not 100% sure which way it should go, tie should go to the criminal defendant. Let's err on the side of lenity. You know, this—lots of potential justifications, kind of fair notice to people. You know, Congress, the legislature generally, is in a position to kind of fix these things. And the Court has said this a bunch.

[00:37:38] [Will] And I'm not sure Justice Gorsuch would agree with your characterization of the doctrine just there, but go ahead.

[00:37:42] [Dan] Okay. Yeah. Okay. So maybe that's—but maybe is that fair, at least as kind of a summary of like where it is currently?

[00:37:49] [Will] Well, so Justice Kavanaugh would say, sure, sure.

[00:37:51] [Dan] Yeah. But, but so basically the Court has said a bunch of times there is this doctrine, but then basically never applies it because under current doctrine, you basically—this comes in as a tiebreaker at the last minute. If you do all of your interpretive moves, and at the very end of the day, you get to exactly 50-50 equipoise, right, in terms of statutory interpretation, then the rule of lenity kicks in, breaks the tie. And so the Court basically never gets there, because it always says, well, you know, maybe you read the statute at first, it seems a little ambiguous, but at the end of the day, we did our tools of statutory interpretation, we've resolved the ambiguity, and so forget about the rule of lenity.

[00:38:26] [Will] Right. So Justice Gorsuch would, true to form, link this to what he calls an old idea, the notion that penal laws should be construed strictly, which I think is the more accurate way, though—that is an accurate way of describing what the rule—how the rule used to be characterized, the rule of strict construction of penal statutes. And that characterization matters for a couple reasons. So one is, instead of thinking of it as just like, well, you just kind of do the normal interpretive thing and then you see if you get to a tie, see if you get to an ambiguity. It's a rule that's sort of pervading the case from the beginning. You're like, okay, this is a criminal case. I'm not approaching this in the same way I would approach the regulation of tree toads in wherever. There's somebody's life or liberty on the line, and that just pervades the whole case.

[00:39:11] [Dan] It's like an interpretive posture rather than kind of a little thing that you do at the very end of the process.

[00:39:19] [Will] Right. And then for Justice Gorsuch as well, That also sort of shapes the kinds of things that are legitimate to look to in resolving any ambiguities. So one of the fights is about the role of legislative history, for instance. And Justice Gorsuch would say—and this might be true even under today's rule of lenity, it's a little bit debated—Justice Gorsuch would say, if you have to go to the legislative history to know this is criminal, you can't do that. Because we do this fiction. It's a fiction. We do this fiction that people are supposed to know what the law is, because in theory you go look it up. But nobody can—I mean, I don't know, maybe you have a USCCAN subscription, but you can't look at the legislative history even in the same way you can look up the law. And we certainly don't want to hold anybody to that. So if you get to the point where you looked at the law, you're like, I don't know if this is wrong. Ah, but the committee report, the committee report criminalizes this. Justice Gorsuch would say you can't do any of that.

[00:40:09] [Dan] Should we set that up maybe a little bit by talking, circling back to the majority and how that came up? Is that too deep in the weeds? You're sighing.

[00:40:20] [Will] I just—it's the least interesting part of the opinion, but, but it's, it's not—

[00:40:24] [Dan] It's a little interesting, kind of from the Supreme Court procedure point of view. Basically, the short version is there was this case that came up to the Supreme Court a number of years back, about 30 years ago, and where the earlier version of the Armed Career Criminal Act did not use these—this occasion language. And federal prosecutors basically were seeking an enhancement for someone who, you know, committed 6 counts of robbery in one incident. And tries to get Supreme Court review. The SG in that case says, oh yeah, that was wrong. Actually, the ACCA should not be interpreted to reach multiple felony convictions arising out of a single criminal episode. So basically the kind of the opposite argument they're making here. Subsequently, ACCA is amended. There's some legislative history suggesting maybe that what Congress is trying to do is actually like agree with the Solicitor General and make it more restrictive, say, okay, it has to be different occasions.

[00:41:28] [Will] There is a document put into the record by Senator Robert Byrd—we don't know who else agreed with it—that says the proposed amendment would clarify the Armed Career Criminal Act statute to reflect the Solicitor General's construction in Petty. So there, at least somebody in Congress had like read the SG's brief and said like, we're gonna do that. Yeah.

[00:41:44] [Dan] And so are you allowed to look at that, uh, or not? Or should you just be, you know, not even getting to that point? You're just like, look, is this language at the outset? Let's just really strictly construe it. Strict construction. You know, it's, it's at least arguable that occasions are different in, you know, time and place. And this is not—we don't need to be—

[00:42:03] [Will] It happens. It happens here that the legislative history argument sort of favors the criminal defendant, so that's why it ends up being a little beside the point. But I think Justice Gorsuch was thinking, like, what if that had come out the other way, right? What if instead that random document introduced by Senator Robert Byrd had said, you know, like, by occasions we mean if you ever go from room to room knocking down drywall, that's 10 occasions?

[00:42:24] [Dan] Yeah.

[00:42:24] [Will] It's ridiculous to think that, like, that is going to somehow later put somebody in jail.

[00:42:29] [Dan] Yeah, and that is kind of arguably the problem with the Court's current approach, which is, you know, you can take a statute and you read it and you're like, yeah, this is kind of ambiguous. But then the Court will say, we've gone through all our 12 different tools and canons and legislative history and all this other stuff. And at the end of the day, we now think, you know, it's 51% in favor of the government, 49% in favor of the defendant. It's not a tie, no rule of lenity, therefore government wins. Whereas if you take Justice Gorsuch's posture, like, if at the outset this is kind of ambiguous, like, you're gonna really strongly err in favor of an interpretation that favors the criminal defendant. And Justice Sotomayor, by the way, you know, basically agrees with him. So we almost have, you know, we, we, sorry, we, we do have another one of these unlikely pairings, as, uh, we just talked about.

[00:43:16] [Will] It's getting more and more likely by the minute, Dan.

[00:43:19] [Dan] Apparently. But the kind of the center The big, large center of the Court, which is everybody else, doesn't agree.

[00:43:26] [Will] Yeah. And Justice Kavanaugh really doesn't agree.

[00:43:30] [Dan] Yeah. So Justice Kavanaugh has an interesting point of view, and as someone who's thought—he has clearly thought a lot about substantive criminal law. And he sort of says, look, let's stick with the current approach. Rule of lenity comes in at the end. It's not this kind of consideration that comes in on the front end of the process, and it's totally fine, and it's right that it really doesn't end up doing a lot of work because courts are supposed to use all the tools. And so if it comes in last, it basically comes in never, quoting criminal law scholar Dan Kahan, and just says, let's stick with that. It's really unclear, like, even what counts as ambiguous. And so that's going to create all these problems of application. And so it's just going to open this whole can of worms if we go with the Justice Gorsuch approach. But he suggests there's a different way to kind of get at some of those concerns, some of those concerns that are underlying Justice Gorsuch's opinion about fair warning, overcriminalization, these kind of like—this constellation of concerns you might have about maybe not interpreting federal criminal law too generously?

[00:44:45] [Will] Mens rea.

[00:44:46] [Dan] Mens rea. Okay. The guilty mind, right? And mens rea is the concept that for every criminal statute, we need to figure out what kind of state of mind is required to commit it, and what state of mind is required to the kind of different elements of the crime, elements being the kind of discrete factual building blocks that are required to be proven in order to prove that someone is guilty of a crime. And mens rea is really interesting because it's one of these things that has like no, very little textual grounding. Like sometimes federal criminal statutes and criminal statutes generally will give us explicit mens rea terminology. They say, with the intent to do X, with knowledge that Y. But often they don't. Often they just kind of describe forbidden conduct. And then courts do this kind of, and they have, you know, for centuries, they do this kind of atextual, kind of almost like policy-based inquiry to kind of say, we think this statute must require proof of this level of mens rea. And this is—they do this across the ideological spectrum. So there's an opinion by Justice Thomas in a case called Staples, which is about a federal criminal law that, you know, criminalizes—imposes very harsh penalties for possessing an unregistered machine gun. Okay, and it doesn't say—statute doesn't say anything about mens rea. But then Justice Thomas says, well, you know, we have these background principles of mens rea, and if we interpret the statute as not requiring proof that you knew your gun was capable of automatic fire, this would kind of criminalize a lot of innocent conduct. A lot of people own guns innocently. That's a totally normal thing in America. And so we're gonna interpret this statute despite any clear textual command to do so, as requiring proof that someone knew their gun was capable of automatic fire before they can be convicted under this crime.

[00:46:38] [Will] Yeah.

[00:46:39] [Dan] And then there's lots of other examples where courts are engaging in this kind of very kind of atextual analysis in determining the mens rea elements of statutes. And as far as Justice Kavanaugh is concerned, that's the tool that we should use to kind of address concerns about punishing people unfairly. We could have heightened mens rea requirements. People have to know certain facts. He also suggests that sometimes courts should be willing to recognize a mistake of law defense, situations where you don't know what you're doing is illegal. This is much more controversial. There's a general proposition in American criminal law that ignorance of the law is no excuse. The Court has sometimes been willing to create exceptions to that rule for certain kinds of crimes that are not known.

[00:47:25] [Will] Justice Kavanaugh was willing to make that doctrine more generous. There, he was not just saying, don't worry, we've got this covered. He was saying, I'm open to more mistake of law defenses, right?

[00:47:34] [Dan] Yeah, yeah. And it's interesting, because he's sort of saying, well, let's not change the way we interpret statutes because of this argument about lenity, but maybe let's change the way we interpret statutes in this other way.

[00:47:48] [Will] Yeah. Well, I mean, it's interesting. I mean, I'm kind of a both-and guy on these—on this debate, I think. But I—you can see it as sort of like, uh, you want to cleanly separate what you're doing, right? So Justice Kavanaugh says, when we're interpreting the statute, I don't want to, like, over-exaggerate the ambiguity, make ambiguity thresholds easier to satisfy. Like, we'll get the statute and try to, you know, do it as cleanly and as, you know, as possible. And then if we've got a problem, let's just, rather than rather than pouring it all into our attempt to twist the statute's words, let's just have a supplemental common law doctrine that presumes mens rea, sort of like riding alongside the statute. So it's not like you can't—it's not like he's a textualist in the sense that you can't have anything that's not in the text of the statute. He's a textualist in the sense that he wants to keep the textual analysis clean, and then whatever other stuff you're doing, like, do that on the side.

[00:48:35] [Dan] Yeah. To some degree, I understand that impulse, because once you start saying, okay, do this whenever a statute is ambiguous, statutory language is inevitably ambiguous in some way. Statutes cannot cover—they cannot anticipate every possible scenario. They have to be written in somewhat general language. Criminal statutes, they're not going to be 100 pages long. And there's always going to be some work of interpretation to figure out, did they mean this? Did they mean that? And so to the extent we go with an extreme version of the rule of lenity, basically nothing, it's very hard to to say anything is covered, because you can always come up with some argument. But I do think that there is something odd about the current doctrine where we say, oh, we have this important rule, and by the way, we never, ever, ever, ever follow it. And so maybe the happy medium is somewhere in between, where sometimes we should be more willing to say, this is at least a pretty close question, and without more-kind of a clearer statement by Congress or the legislature, depending on what court you're in, maybe we should kind of—it's close enough that we should err in favor of the criminal defendant. That doesn't strike me as crazy.

[00:49:45] [Will] Maybe not. But so one of the things Justice Kavanaugh cites, which is a source worth looking at for people who haven't looked at it before, is an article he wrote, technically a book review, in the Harvard Law Review called Fixing Statutory Interpretation, back when he was a judge of the D.C. Circuit. It's a review of Judge Katzmann's book on statutory interpretation. And there he has a kind of more full call for the abandonment of all these ambiguity-dependent canons. And one of his specific arguments there is just empirically, given his experience as a judge, the ambiguity threshold is too easy to manipulate. Like, maybe a statute actually—it's not that everything is ambiguous, but it's that it's like, look, if I told you you can make the case come out the way you want if you say the statute's ambiguous, you can make yourself say it. And then he actually even has a remarkable unsourced, but report that he's talked to a bunch of his colleagues at conference about sort of like, what is the ambiguity threshold? And they don't agree. Some of them think that one, if it's a 90/10 case, like one interpretation is 90% more likely, it's still ambiguous. Some of them think the threshold's at 60/40 or 55/45. So you could just say, descriptively, I can tell you that when we sit down and try to talk about this, we don't even agree what we're doing.

[00:50:50] [Dan] Yeah. It's really interesting though, because you wonder, is it Is there actually going to be more disagreement about ambiguity versus disagreement about statutory meaning? Because there's often a lot of disagreement about statutory meaning too, right?

[00:51:01] [Will] Yeah.

[00:51:02] [Dan] Judges get together and they interpret the statute and it's 5-4.

[00:51:07] [Will] But maybe it multiplies. Maybe if you have one chaos factor and you square it, you get a lot more.

[00:51:13] [Dan] Yeah, maybe, but not obviously. Maybe it's just the same level of uncertainty and you're just shifting shifting where it happens, and so you end up, you know, with the fuzzy line is, you know, further along in favor of defendants, and it's still just as fuzzy. I don't know.

[00:51:27] [Will] I'll say, so I also have an article written with my now-colleague Ryan Doerfler, The (Not So) Plain Meaning Rule, that takes a related line to what Justice Kavanaugh did about sort of ambiguity-dependent. As we say, it's not unjustifiable, but it's presumptively weird if you think something is, like, important enough that you can use it to use it in cases of ambiguity, and then you never ever use it anywhere else in the case. That is a way you could decide to stage legal proceedings. But if it's relevant that it's a criminal case, if it's relevant enough that you should use it as a tiebreaker, maybe sometimes that's a fact you want to know at the start of the case. It's maybe just a more holistic—and of course it is artificial if the judges know these are criminal cases and they know there's a rule of lenity even before they get to the ambiguity phase.

[00:52:10] [Dan] But by the way, Justice Gorsuch would not necessarily restrict it to criminal cases, right? This is another interesting thing that pops up in his opinion. He says lenity has long applied outside of what we might call the criminal law. And it says it, in a footnote, applies to all penal laws inflicting any form of punishment, including ones we now consider civil. And he says it's just one of a number of judicial doctrines that seek to protect fair notice and the separation of powers. And so, you know, it would not be surprising to me if Justice Gorsuch really sees a much wider application for principles like this that, you know, is going to inform, you know, his approach to maybe administrative law, things like that, where he has a much particular view of what judges' role should be relative to the other branches, what kind of interests are at stake, and so on.

[00:53:03] [Will] So there's one thing I love about this and one thing I really worry about about that. I just love that recognition that we've been talking just now about how criminal law has these stakes where somebody's going to go to jail over it, right? But in a way, as Robert Cover used to say, all legal interpretation takes place in a field of pain and death, right? At the end of the day, if you don't obey the administrative order that issues from the EPA, you'll get held in contempt of court and you'll go to jail too, or you can lose your job or all sorts of things that are that are really important. So I actually appreciate the recognition that there are stakes in all these cases that matter. The thing that makes me nervous is the place where current law does this the most vigorously is the doctrine of qualified immunity, which protects government officials against liability for a huge range of supposedly ambiguous constitutional violations. And one of the 3 justifications that the justices have put forward for this doctrine The one that's gotten the least attention until now, is a kind of rule of lenity type argument, that it's unfair to hold officers personally liable if they couldn't have known that this was going to be the 5-factor test. Now, you could agree with Justice Gorsuch on principle and still say qualified immunity's gone way too far. We apply it in lots of cases where that justification doesn't make sense. But that makes me nervous that Justice Gorsuch is going to come in later as qualified immunity's new best friend.

[00:54:24] [Dan] Yeah, that's really interesting. I mean, it obviously is a different kind of doctrine because it's not about interpreting a criminal statute. It's about interpreting the background legal doctrines that kind of inform whether law is clearly established. But yeah, if that is your view, that anytime something imposes something that looks like punishment, whether it's civil or criminal—

[00:54:48] [Will] Fair notice and separation of powers are these free-floating concerns that—

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

[00:54:53] [Will] So Nathan Chapman, who's a professor at the University of Georgia, who cited in Justice Gorsuch's—an article he co-wrote with Michael McConnell, cited in, I think, Justice Gorsuch's opinion here, has a new forthcoming article making this kind of fair notice defense of qualified immunity, or of some qualified immunity. A lot of the current cases would not necessarily measure up that way, but some of them would. And I'll predict here now that Justice Gorsuch and Nathan Chapman are going to find each other in the next few years.

[00:55:19] [Dan] Bad news for you, because you're a prominent critic of qualified immunity, so maybe you just lost a vote.

[00:55:25] [Will] Well, maybe he's not gonna be one of my 6 favorite justices anymore.

[00:55:29] [Dan] Okay, the 6-way tie will be broken. I'm actually running out of time, so I think we might do an episode next week, Will, if you're able to, that would be touching on some of the other opinions. What do you think?

[00:55:43] [Will] Would that be the same occasion or another occasion?

[00:55:46] [Dan] Well, let me apply a multi-factor test and get back to you. Okay, so the Court did some other stuff that we will not talk about at this moment, but there's an interesting case involving the Boston Marathon bomber, Dzhokhar Tsarnaev, and his death sentence. There's another case that kind of is at the intersection of really nerdy federal courts doctrine and abortion, and some other stuff that happened on orders list-

[00:56:14] [Will] Shadow docket!

[[00:55:15] [Dan] Shadow, yeah, okay, fine. Shadow docket related to partisan gerrymandering and elections. And so we'll circle back to that in a few days. But for now, this is what we got. Thanks very much for listening. Please rate and review us on wherever you listen to podcasts, like the Apple Podcast Store, Send us feedback that we, you know, sometimes manage to respond to, often don't, at pod@dividedargument.com. Check out our website, dividedargument.com, where we have transcripts of all the episodes within a few days after they're released. If you—there's something you remember we said and you want to go check it, that's a helpful resource. And then merchandise is available at store.dividedargument.com.

[00:57:00] [Will] Thanks to the Constitutional Law Institute for sponsoring our endeavors. Thanks to the Justices for writing some opinions that are actually interesting to talk about.