Shoe of Damocles

[00:00:21] [Dan Epps] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.

[00:00:26] [Will Baude] And I'm Will Baude. I told a couple of colleagues this week that we were going to record on Friday, and they said, wait, then it's no longer unpredictable. We now have a lead.

[00:00:36] [Dan] For them, not for most listeners though. And it has been a bit of a break after a pretty steady run. So I feel like that was unpredictable.

[00:00:45] [Will] Do we have any excuses for that?

[00:00:49] [Dan] You were on vacation.

[00:00:51] [Will] And you started class.

[00:00:52] [Dan] Semester started here. I am swamped teaching fed courts for the first time using your book and with your guidance. That's been a lot of fun.

[00:01:02] [Will] It's not really my book.

[00:01:05] [Dan] You're the first name on it. It's Baude et al.

[00:01:09] [Will] It's good for my citation counts, I'll admit that. But it's Hart and Wechsler's book and we're all just holding it in trust.

[00:01:17] [Dan] I mean, how many words remain from the first edition?

[00:01:22] [Will] That's an interesting question.

[00:01:24] [Dan] Probably not many, right?

[00:01:25] [Will] Well, I mean, a lot of things are cases that have not changed. You had edits in the cases. Marbury.

[00:01:33] [Dan] Okay, but of the notes, how much is left?

[00:01:36] [Will] The notes have changed a lot.

[00:01:37] [Dan] The notes have changed a lot. Well, it's fun to teach out of. I'm actually finding it slightly less challenging to teach out of than I was worried about. So we will see if I still say that. I'm 2 weeks in, 11 weeks to go. Learning a ton, having fun. Students are great. So I'm busy, but I got nothing to complain about. Yeah.

[00:02:04] [Will] Good.

[00:02:05] [Dan] Teaching 4 days a week. I haven't done that maybe ever.

[00:02:09] [Will] That's good for you. Build your stamina.

[00:02:11] [Dan] I think so. Yeah. Law professors should have to work hard once in a while just to see what it's like. Excellent.

[00:02:22] [Will] Well, speaking of standing in federal courts, I think we got some stuff in your wheelhouse to talk about.

[00:02:27] [Dan] Yeah. So I actually just finished teaching standing, so I feel a little bit more knowledgeable about that area of law and a little bit more prepared to talk about the cases that we're going to talk about than I would've been otherwise. Any preliminary matters to get out of the way? One thing that was interesting was Jodi Kantor's story about secrecy at the Supreme Court that had some interesting tidbits in it, one of which was that Justice Scalia didn't make any arrangements for what to do with his papers after his death, which is not the norm. I think most justices have come up with some plan. Obviously, he died somewhat unexpectedly, but I still think it's the kind of thing you might do a little earlier.

[00:03:16] [Will] I guess I wonder, as of 2016 when Scalia died, do you think everybody else on the Court already had plans for their papers in place? Or do you think—

[00:03:26] [Dan] I don't know.

[00:03:26] [Will] Because he was the first person to die kind of quite unexpectedly. I mean, several other people have died on the bench, but—

[00:03:35] [Dan] Yeah. I mean, Justice Ginsburg, it sounds like, did have plans. She donated them to the Library of Congress with certain conditions. I don't know when that plan was made.

[00:03:46] [Will] Yeah. It seems like, are we trending to a world where the default plan is something like, my papers remain closed until everybody in the relevant period is dead? Either everybody who was on the Court when I was is dead, you just do a whole period, or maybe tranches, like the early part of my service.

[00:04:07] [Dan] Yeah, I think that seems to be common. Now, there seems to have been some kind of discussion at the Court after Justice Scalia's death about trying to come up with some kind of more uniform plan. But it seems like it's not actually clear from the reporting. It's not clear what the plan is.

[00:04:31] [Will] Right. But it might be something like that.

[00:04:35] [Dan] It might be.

[00:04:37] [Will] Everybody designates a custodian and designates a rough—

[00:04:40] [Dan] I mean, to the extent that that's what Ginsburg did, that suggests— I mean, she could have broken with what the Court wanted or not.

[00:04:50] [Will] Right. That's true. And are you— you're more of a transparency guy than I am, I think. Are you bothered by any of this?

[00:04:59] [Dan] Where to start? I mean, so first of all, I don't love this notion that the papers are just the justices' personal papers, personal property to do whatever they want with. That doesn't strike me as obviously correct. I mean, the papers are printed on government-owned paper using government-owned printers. And so I don't actually think they are personal property.

[00:05:23] [Will] Okay. But I take it if one of the justices brought in their own printer from home and ordered their own paper on Amazon, that wouldn't impress you? You wouldn't say, okay, now you can do whatever you want?

[00:05:31] [Dan] I don't know. I don't know if that would be— that also strikes me as inappropriate. In the sense that we typically think that someone should be using official government channels if they're in a government office.

[00:05:47] [Will] Yeah, but sometimes it's hard to get— I don't know. Here at least, sometimes it's hard to get my office supplies in a timely fashion, so I frequently just engage in self-help.

[00:05:57] [Dan] It could be, but to the extent that this is in order to maintain secrecy, I do think that—

[00:06:04] [Will] But assume they were government, and maybe this move towards having a centralized plan is actually moving towards that. Assume the justices are treating them as something official. Is keeping them secret for a long time, roughly this amount of time, bad?

[00:06:21] [Dan] My preference might be a little sooner than waiting for everybody to die. I think maybe having a time limit relative to when the case is decided rather than relative to when each justice dies. I mean, I think that seems more tied towards the vanity of the justices than towards where the public interest lies.

[00:06:46] [Will] Yeah, although the vanity of the justices might be relevant to the public interest. And I think we did talk about this in a previous episode, and I'm trying to be better about remembering when we're repeating ourselves. But if you know that Justice Blackmun keeps very good records and intends to release everything ASAP, then that may affect what you're willing to put in writing.

[00:07:07] [Dan] Maybe.

[00:07:08] [Will] Sometimes that'll be good. Maybe sometimes we think that the threat of one day being read will cause the justice to behave better. But it's very bad to the extent that means that you— I think for many things there's a norm that memos and case discussions circulate among all 9. But you could imagine a world where the norm is more like you circulate on your team and then you only circulate things to the other team if you have to. And that seems like it would be bad. But that's contingent on how the justices feel. Ideally, it might be that the justices feel totally happy conducting everything in the open with a lot of transparency. But if they don't feel that way, I at least want them to have what they need to feel comfortable.

[00:07:48] [Dan] Yeah. I'm not sure that if the time limit is 20 years versus after you die, it would necessarily make a big difference. But I mean, just my general, without getting into exactly what the number should be, and I'm not sure, my view is the Court exercises a ton of power and is not a very transparent institution. I do think that people should be able to get a little bit more information about the institution in order to evaluate whether it should have as much power as it has. That's my view.

[00:08:17] [Will] Yeah. So my one other, despite everything we just said, I'm now flirting with a new view that is the opposite of one of my previous views.

[00:08:25] [Dan] Oh, I like that.

[00:08:27] [Will] My new— so this is tentative and maybe tongue-in-cheek. My new institutionalist proposal would be a lot of transparency. All the papers become public after 10 years or something, with the goal that the justices would feel more pressure to come into the office regularly and talk to one another in person. If you knew, okay, you could do it on the papers, but it'll be seen. And anything sensitive you want to talk about, you have to talk to people because they all work in the same building, but my sense is some of them work there more often than others. Some of them talk to each other more often than others.

[00:09:07] [Dan] And your view is interpersonal face-to-face interactions would lead to different form of decision-making, less vitriol.

[00:09:17] [Will] Well, yeah, this is one of those things that can cut both ways. There are people in the world who I maybe get along with better on paper than I do in person. I'm not saying any justices are in that category.

[00:09:29] [Dan] Where am I on that?

[00:09:34] [Will] I wish we saw each other more. This is good. We record the podcast face-to-face and that's good.

[00:09:42] [Dan] Yeah, it's been a while since we've done a live show. Was the last one May, mid-May?

[00:09:49] [Will] That's right. We never succeeded at our plan to create a sort of podcast studio in downstate Illinois in between where we could meet in person.

[00:09:57] [Dan] Peoria perhaps. Yeah, and I don't think we have any live shows on the calendar for this fall. I'm pretty busy this fall. I think we may be doing 1 or 2 in the spring, but that's TBD.

[00:10:13] [Will] Yeah. Okay. That's an interesting story. I'd say in the scheme of Jodi Kantor exposés, this one seemed pretty tame.

[00:10:22] [Dan] Yeah. This wasn't super, super leaky, but a little bit of new stuff in there, which is good. So I liked it. By the way, in response to what I said, you don't buy any of the public interest in disclosure arguments. Your new view is still more about making the Court better.

[00:10:45] [Will] I mean, I do think there's a public interest in disclosure. So I do think, as a background norm, we should want the papers to be public as soon as possible. And the question is, how soon as possible?

[00:10:58] [Dan] Well, as soon as not possible. I mean, it's possible to have it—

[00:11:01] [Will] As soon as reasonable. As soon as we can without that causing big problems. Okay. And then the question is what counts as a problem and how much do we know what that is and so on. But I do think the background norm of we want government records, especially for the historical record, to be disclosed, I think that's true. So it's just a question of how strong it is.

[00:11:26] [Dan] Okay. Feedback. We actually have a huge amount. We had compiled it all and there's a huge amount. And I think we're going to talk about practically none of it. Did get an interesting email from a friend of the show, Daniel Greco, who is a philosopher, professor at Yale, about formal logic that takes issue with the claim that we dealt with about whether a conditional statement where the condition is false turns out to be false is always a true statement.

[00:12:01] [Will] Yeah.

[00:12:02] [Dan] I'm going to butcher this, but he says, basically, people tend to see the system you learn in introductory logic as an artificial language whose connectives are stipulated to obey the rules you learn rather than as an attempted theory of natural language. So basically, it might be true in formal logic that if A, then B is true always as if not A is true, but that isn't necessarily true of how we understand those kind of statements in spoken English. Okay. And that seems— That makes sense.

[00:12:34] [Will] Formal logic is a programming language, essentially. And we could often render our English statements into that language, but maybe not always.

[00:12:46] [Dan] So it's nice to occasionally hear from listeners who are experts in non-law things. First of all, it's always surprising to me that we have listeners who aren't lawyers. And it's particularly nice to hear from listeners who know a lot about other stuff.

[00:13:05] [Will] Yeah. Somebody asked me recently, was our podcast only for lawyers? And I came to the view that I think it's for nerds, and lawyers would be a natural set of people to be law nerds. But I do think we have a solid block of people who are nerds about something else, but who then want to— they understand what they're getting with us. And so that's great.

[00:13:31] [Dan] Yeah. Okay. What else have we got?

[00:13:35] [Will] I learned that I have become old enough to repeat myself without remembering it. So the story I told that became the title of our last episode about law firms with thriving atrocities practices, apparently I've already told the last time we talked about an ATS case in the show back in season 1. Which I had forgotten, but some of our listeners remembered. It's embarrassing.

[00:13:57] [Dan] Yeah. CJ Lambassi wrote in to say that. That was a long time ago though, season 1, episode 7.

[00:14:05] [Will] Yeah. At this point, we probably have some listeners who weren't listening back in season 1, so maybe every 5 years is good enough. But I take that as a sign that I can't be relied upon not to repeat myself. So there we go.

[00:14:20] [Dan] So yeah, there's a lot of times when I tell anecdotes and things like that, and I know that I must have said this before at some point, but I couldn't tell you exactly when. So I mean, with luck, at least a lot of the listeners have memories sort of like ours where they don't necessarily remember either. But for some people, I'm sure that as we go on, as we eventually hit the double digits of seasons, which I very much hope and expect that we will. There will be more of that because we only know so much. It's possible that our collective learning is being outpaced by the pace of episodes.

[00:15:07] [Will] Yeah, I hope we can learn new things at a fast enough rate to still have something to talk about.

[00:15:13] [Dan] Okay. Anything else? I think we have many, many emails, but I think that rather than spend forever on them. I think we should just get to the substance such as it is.

[00:15:27] [Will] Yeah, let's talk about it. We have 2 per curiam decisions from the interim docket to talk about, right?

[00:15:35] [Dan] Okay. Both involving standing.

[00:15:38] [Will] Yes. And I should say, we're recording this on Friday, September 4th. It would not shock me if by the time this airs, there's been something else, a development. Or follow up on some of these things. But in terms of catching up on the August interim docket, we've got 2 per curiam standing rulings, 6-3, 5-4. Do you want to talk about the ballroom or the election?

[00:16:02] [Dan] Maybe we should do the election one just because it was earlier in time.

[00:16:08] [Will] Okay.

[00:16:08] [Dan] Okay. So there is this executive order that the president has issued that has a number of sections. What exactly the order requires and says seems to be a matter of contestation in the case itself.

[00:16:35] [Will] Yes. So this is Executive Order 14399, Ensuring Citizenship Verification and Integrity in Federal Elections, issued by the president under his authority to execute the Help America Vote Act, the National Voter Registration Act, and to guarantee a republican form of government. Every state—

[00:17:00] [Dan] Capital R?

[00:17:03] [Will] It's lowercase r in the executive order.

[00:17:07] [Dan] Should we read that as capital R?

[00:17:10] [Will] There's actually this very funny wrinkle that the Supreme Court has held that claims under the Republican Guarantee Clause are non-justiciable. Famously, in Luther v. Borden, Congress decided which of 2 warring governments in Rhode Island was the lawful government. And then Congress used this power during Reconstruction to be able to decide without judicial review when the Reconstruction governments were legal, when they weren't, and so on.

[00:17:33] [Dan] Was that the first political question doctrine case, basically?

[00:17:36] [Will] Basically.

[00:17:37] [Dan] Yeah.

[00:17:38] [Will] There are cases about treaties and things that You could see it that way, but basically, if you take that really seriously, I don't think the government's made this argument, you could say, well, then the executive order should be non-justiciable because it's a Republican Form of Government Clause.

[00:17:50] [Dan] Yeah.

[00:17:51] [Will] So there always still has to be some judicial review about whether a thing that invokes the Republican Form of Government Clause properly invokes it, which then raises the puzzle about, is it really a political question doctrine? Is it just a merits doctrine? Anyway, the general shape of the order is to order some kind of greater verification that the states should participate in, in figuring out who is lawfully entitled to vote and—

[00:18:16] [Dan] A more federal-driven verification. Yes.

[00:18:21] [Will] And then also to get the Post Office involved in scrutinizing the mailing of ballots. And there has been some debate, which we'll talk about in a minute, about how do these things relate. One proposal that was discussed was maybe that the Post Office would refuse to deliver absentee ballots to anybody who wasn't on the approved list or maybe refused to deliver them in any state where the state had not cooperated and maintained the list.

[00:18:44] [Dan] Just to be clear, the idea is the federal government is going to make lists of eligible voters.

[00:18:54] [Will] Yes.

[00:18:55] [Dan] I don't totally understand where those come from, but the order says, to the extent feasible and consistent with applicable law, da, da, da, da, da, the Secretary of Homeland Security through the Director of U.S. Citizenship and Immigration Services, in coordination with the Commissioner of the Social Security Administration. So I guess that's how they're doing it. Shall take appropriate action to compile and transmit to the chief election official of each state a list of individuals confirmed to be U.S. citizens who will be above the age of 18 at the time of an upcoming federal election and maintain a residence in the subject state.

[00:19:32] [Will] The list shall be derived from federal citizenship and naturalization records, SSA records, SAVE data, and other relevant federal databases.

[00:19:40] [Dan] Yeah.

[00:19:40] [Will] I mean, this is famously an odd thing about the United States is we don't have one national database registry that just has everybody in the country in it and has all the info about us. There's much data about us, but there's not one database. And this is one of the reasons we don't have a single national ID card or a single thing like that. So apparently we're going to create one on the fly right before the election. And make everybody use it, even though they've been using other things. Or at least so the executive order suggests, requires.

[00:20:17] [Dan] Contemplates, but doesn't quite— it's not totally done yet.

[00:20:23] [Will] And I should say, this is the kind of thing the president has done several times before, where he issues a broad executive order on a topic where the president has expressed extreme views. Orders some more specific things that are not exactly the same as the extreme views, but orders a bunch of stuff that might or might not be legal. And then also says at the end, this should be implemented consistent with applicable law.

[00:20:51] [Dan] Mm-hmm.

[00:20:52] [Will] In a way, the executive order is saying, I'm abolishing the Department of Education, is kind of like this. The president said, we're abolishing the Department of Education. Then there's an executive order that's kind of like that and says to do a bunch of stuff that's kind of extreme, but then also says consistent with law. And then the Court has to decide, do you just say, well, this is obviously unlawful because the whole thing is kind of crazy? Or do you say, well, look, it says only do the lawful parts. So almost by definition, the order's not unlawful because do this stuff, if it's lawful, might turn out to be not very much.

[00:21:29] [Dan] But the other thing is that this Section 2 that has the thing about lists also has in Section 2, something sort of saying that the AG shall prioritize the investigation, and as appropriate, the prosecution of state and local officials or any others involved in the administration of federal elections who issue federal ballots to individuals not eligible to vote in a federal election.

[00:21:53] [Will] Yes.

[00:21:55] [Dan] Creating the impression among some readers that there is a connection between those 2 things, the lists and the prosecutions in that same paragraph.

[00:22:04] [Will] Yes.

[00:22:04] [Dan] Section of the order.

[00:22:06] [Will] Yes. Right. The natural narrative flow is we're going to create a new list of who can vote, and we're going to prosecute anybody who's not on the list and anybody in the state who lets people vote who's not on the list. And depending on who's in charge of making these lists and how good they are and whether the mistakes trend in a partisan direction or not, that could essentially weaponize the federal government to affect who wins the midterm elections. Yes, if that happened, but apparently it's not going to happen.

[00:22:35] [Dan] Seems quite realistic to me. Well, the intent strikes me as quite plausible. And in fact, I don't understand what the intent would be otherwise.

[00:22:46] [Will] Well, I mean, look, one other thing that could sometimes happen is you could have a president who says he wants that to happen, and you could have a person who drafts an order that is not designed to make that happen, but it's designed on a quick skim to seem like it could. So the intent of the order drafter, depending on whether that was the president or not, might be different from the intent of the president?

[00:23:09] [Dan] Yeah, that's possible.

[00:23:11] [Will] Or maybe he drafted this himself.

[00:23:12] [Dan] I don't know.

[00:23:14] [Will] Okay. So this order was challenged as unlawful by a group of states who point out that the basic principle for congressional elections, one of which is coming up in 2 months, is that the states are in charge of them unless Congress intervenes to put itself in charge of them. And as to who votes, the states are in charge of that, really, kind of, period. The Constitution says that you can vote in a congressional election if you can vote in the relevant state legislative election, and creates its own sort of rule of voter eligibility.

[00:23:49] [Dan] Yeah.

[00:23:50] [Will] And so where does the president get off telling the states who should be on the lists and what all these things should be, and where's the authority for all this? Yeah.

[00:24:00] [Dan] So that's in D. Mass., District of Massachusetts federal district court. The EO gets enjoined, but I mean, very specific provisions here are enjoined.

[00:24:11] [Will] Yes.

[00:24:12] [Dan] And then First Circuit declines to stay.

[00:24:15] [Will] Yes.

[00:24:16] [Dan] And then we get to Supreme Court.

[00:24:19] [Will] Yes. And the Supreme Court rules 6-3 that the injunction should be stayed because the government is likely to prevail on its argument that the district court lacked jurisdiction to enter this injunction. Okay.

[00:24:37] [Dan] And that is for reasons of standing.

[00:24:40] [Will] Yes. And ripeness, which is maybe the same as standing, but maybe not.

[00:24:49] [Dan] Is ripeness jurisdictional though?

[00:24:53] [Will] Well, if it's the same as standing.

[00:24:54] [Dan] If it's not the same as standing, isn't it sort of equitable?

[00:25:01] [Will] I mean, maybe. So as standing has become— standing used to be equitable, and then standing became constitutionalized. And so then as it became constitutionalized, the Court had to make it less equitable because it didn't think that the Constitution could be equitable. And ripeness, the Court has both said ripeness and standing are basically the same, which would imply that it's also constitutionalized. And then it's also said, oh, but ripeness has these equitable factors too, and we're not sure. Those might have to go or might not.

[00:25:29] [Dan] Why would it be the same? Is it because your injury hasn't materialized yet? Is that what would make ripeness standing? Ripeness is for those non-lawyers in the audience, this idea that your claim isn't ripe yet. It's not time to go to court yet.

[00:25:51] [Will] Right. Either your injury hasn't materialized yet or it isn't yet established that your injury will be caused by the thing you're challenging. There's a hypothetical injury. The hypothetical injury is that the states are not going to be allowed to implement their election laws and run elections in a fair and lawful way. And that is a real injury. It hasn't happened yet. You could sometimes get an injunction against a thing that will cause a future injury, but then you need to show that the thing you're trying to stop is likely to cause or is traceable to the injury you say you're going to get.

[00:26:20] [Dan] Yeah.

[00:26:23] [Will] And indeed, this is part of what the Court says is anything that happens to the states will be because of how the executive order is implemented. It'll be because the Secretary of Homeland Security makes bad lists or forces you to take the lists, or because the Attorney General threatens to prosecute people they shouldn't be prosecuting. And we don't know exactly, or even really approximately, how that's going to go down.

[00:26:51] [Dan] Okay. And just to understand the different components though, so 2(a) just says government's going to make the list.

[00:27:03] [Will] Yes.

[00:27:03] [Dan] Right. Okay. I guess it's fair enough to say that there's no real injury from the government just making its own lists, right? Just making the lists.

[00:27:17] [Will] Just making lists and not requiring them?

[00:27:20] [Dan] Requiring them of whom?

[00:27:22] [Will] That the states use the list?

[00:27:24] [Dan] Certainly, that the states use them, but I'm just saying literally just making the lists.

[00:27:28] [Will] I think just making the lists probably doesn't—

[00:27:31] [Dan] So here's the 2(a) of the opinion. It says Section 2(a) of the order directs the secretary to take appropriate action to create and distribute state citizenship lists.

[00:27:42] [Will] Yes.

[00:27:43] [Dan] Just create and distribute a list, right? That's not obviously an injury. I think it's maybe when you combine it with everything else, it becomes an injury.

[00:27:52] [Will] Yes. I mean, so making a list is by itself not an injury. And then there's some— the Court then says, now, any injury you might have is about what they're going to do with the list. And we don't know what they're going to do with the list. And so now if we knew what they're going to do with the list, I take it then maybe the injunction would be okay. Like if it were clear that the list is part of a plan to stop people who are not on the list from voting somehow.

[00:28:20] [Dan] Which it presumably is, right? I don't know why else you make the list personally, but I'm just curious then. Okay.

[00:28:28] [Will] All right. Okay.

[00:28:29] [Dan] But the Court says no. Okay. And then we go into Section 2 of the order.

[00:28:33] [Will] Yes.

[00:28:35] [Dan] Which is the thing about prioritizing prosecutions, investigations and prosecutions. And here, I think there's a couple different flavors. I mean, one is this is an intrusion on the president's Article II power. To set enforcement priorities and prosecutorial discretion and so forth. And the other is, this also isn't doing anything to the states. This is just telling the federal government, people in the federal government, how to exercise discretion.

[00:29:11] [Will] Right.

[00:29:12] [Dan] Now, the states say, you got to look at this whole Section 2, right? I mean, not just 2(a), not just 2(b) standing alone.

[00:29:19] [Will] Right.

[00:29:19] [Dan] There is a very natural implication that there is a threat that people in any given state will be investigated and perhaps prosecuted if they approve people to vote who aren't on the Trump list. Right.

[00:29:38] [Will] So this is where the Court says something that's reasonable, although partly reasonable because the Court says it. Which is, the Court says, well, that's not what the order says. The order says you'll be prosecuted if you let people vote who are not allowed by existing statute to vote, and not for not being on the list. And therefore, there's no well-founded fear that you'll be prosecuted for not using the lists. Now, I think there might have been a well-founded fear of that beforehand, because again—

[00:30:02] [Dan] Yeah.

[00:30:04] [Will] But now that the Supreme Court has said there's no well-founded fear of that, I actually feel less afraid of that. Now, if you were prosecuted for that, you would go to the Supreme Court and say, look, the Supreme Court said you can't be prosecuted just for—

[00:30:16] [Dan] That's not what it's saying. It's not saying you can't be prosecuted. It's just saying you shouldn't be afraid.

[00:30:22] [Will] I mean, it is saying that you don't have to use the list at all.

[00:30:27] [Dan] And so, right?

[00:30:30] [Will] And that the prosecutions will only be for existing statutes, and that there's no reference here to citizenship lists.

[00:30:36] [Dan] Yeah. Although, isn't the theory that, sure, the prosecutions have to be based on existing statutes, but the premise of a prosecution under an existing statute could be the failure to rely on the list, right? Obviously, they're not making up a new statute.

[00:30:53] [Will] Right. But I feel more reassured by this opinion that the list— if I think that I'm following the statute and I disagree with whatever's on the list, I'd feel more reassured with this opinion that I'm allowed to disagree with the list, that nobody's going to say, well, You were supposed to take the executive's word for it or follow the list, or that there's some sense—

[00:31:12] [Dan] I mean, I don't think any court would come in and say, you know, they go to the government, you can't investigate these people, even if— so let's say, you know, ex post, the federal government starts investigating every state that didn't use the list. I don't think you can use this opinion to say they can't do that.

[00:31:29] [Will] Sure, I agree. But I'm just saying, you can use this opinion to make— maybe this was obvious— to say, look, we didn't use the list and we didn't have to. I mean, so you can investigate us for not using the list, but we agree we didn't use the list and we didn't have to. Now tell us whether you think we, you know, violated HAVA or whatever.

[00:31:52] [Dan] Yeah. Okay.

[00:31:54] [Will] Okay. And these 2 parts, the sort of lists thing has faded from— there's been a lot of fallout from this ruling, which we'll talk about in a minute. But the fallout relates more to what we're gonna talk about next, which is Section 3. Which is the Postal Service.

[00:32:09] [Dan] Okay. So yeah, this is the part of the order that directs the Postal Service to issue a notice of proposed rulemaking. So we don't have a rule yet.

[00:32:21] [Will] Well, we do.

[00:32:23] [Dan] Sorry. Yeah, we do as of when?

[00:32:26] [Will] The Post Office in fact issued the final rule discussed here before this opinion came out, like the weekend before. This opinion was particularly drafted before that had happened. And then contains a couple of things like, well, at the time this suit was filed, which is technically when you assess standing, there was no final rule. And the opinion doesn't discuss the existence of a final rule.

[00:32:44] [Dan] Yeah, yeah. Right.

[00:32:45] [Will] But so as of the time the suit is filed, there was no final rule. It was just telling the Post Office, you know, overhaul your procedures for dealing with election mail and in various dubious ways.

[00:33:00] [Dan] Yeah.

[00:33:02] [Will] Okay.

[00:33:03] [Dan] But so resting on the assumption or the premise that there isn't a rule, and there wasn't when— obviously there clearly wasn't when the injunctive relief was granted. The Court says, this part of the order imposes no legal requirements on the states or for that matter on anyone outside the executive branch.

[00:33:28] [Will] Right.

[00:33:30] [Dan] Okay. And then the Court is going to— so the states have theories for why it does impose harm on them, including they have to do various things to kind of get ready and to possibly change their practices. And the Court says that's too speculative, and it's relying on this case, Clapper, which was a case that said journalists and nonprofits who were challenging government's authority to intercept foreign communications. It was too speculative for them to say they might have their communications intercepted, and they rejected their argument that they had to take steps, that they were incurring costs by taking steps to avoid that. Right.

[00:34:21] [Will] So this kind of makes sense, in that we don't know what the final rule's going to say. Indeed, the final rule that did issue did not contain every provision that the executive order discusses. I think one of the proposals in the executive order that the final rule doesn't do is to say we won't deliver absentee ballots if you're not on the list, for instance. That's one thing you could do with the list is tell the Post Office, if you're not on the list, we're not interested in mailing your ballot.

[00:34:48] [Dan] Yeah.

[00:34:49] [Will] But it does do other things. So it sort of makes sense to say, well, let's see what the rule says. But Dan, the election is pretty soon.

[00:34:58] [Dan] Yes.

[00:34:59] [Will] Some would say that we are on the eve of the election. So it's a little scary to say, well, let's just wait and see what they're going to tell you to do and see whether it's okay. And I mean, it is true now, we've gotten used to getting these things to the Supreme Court very quickly. And indeed, the final rule has already been enjoined by the lower courts again. And the government has now got a stay, a new stay application into the Court asking for that injunction to be lifted so they can enforce the rule. So I guess we're going to find out pretty soon.

[00:35:32] [Dan] Yeah.

[00:35:33] [Will] But if the rule is going to go into effect and states are going to have to comply with it, it is just logistically very hard. The rule does require things like you have to mark the mail that carries ballots in a special way, analogous to the rules for mailing cremated humans and replica explosives. I'm not quite sure I follow the analogy, but analogous to that. And right now, the ballots don't have the markings on them, and there are millions and millions of states and different people who need to send these ballots. So it's a little weird to lack certainty over whether that's going to happen and how. Yeah.

[00:36:15] [Dan] Yeah, that would be nice to know. But as you said, I think— do you think we will now be able to get a merits ruling on these things?

[00:36:27] [Will] Yes.

[00:36:28] [Dan] Up at the Court?

[00:36:29] [Will] I think the Court will rule on— I mean, so again, the rule has been enjoined already by the lower courts, and the Court will rule on whether to stay the injunction against that rule soon. And boy, I guess I'm going to make a prediction. This opinion would be insane if the Court were planning to let that rule go into effect.

[00:36:50] [Dan] Hmm.

[00:36:50] [Will] This opinion would make some sense if the point is, don't worry, the executive order says a lot of stuff, some of which would be unlawful, but we're not sure it's really going to happen. But some of it's just kind of moving papers around and internal prioritization, and anything in it that's really illegal could be stopped. That makes sense if we're confident that sort of the really disruptive stuff's going to be stopped. It would be kind of insane if also what that means is next week these states are going to learn for the first time that they have to mail all the ballots in green envelopes, and nobody knows if we're going to get enough green ink or whatever to make it happen.

[00:37:31] [Dan] I am going to predict that at least one justice who was in the majority here will also say that whatever the president is doing is okay. Okay.

[00:37:42] [Will] I'm going to predict that—

[00:37:44] [Dan] Mine can be compatible with what you're saying.

[00:37:47] [Will] Yeah, I don't disagree with that, but I think at least 5 justices will say the states do not have to comply with the rule right now before this election, one way or another.

[00:37:59] [Dan] Right now?

[00:38:00] [Will] Yeah. It might be that the rule can go into effect later. It might be you could say the government's motion for a stay is denied because of the balance on the equities. And without even getting into the merits, we just don't want to change the rules right before the election. It might be losing the merits. The government's argument for a stay is a little complicated because it has to say, this is sufficiently important that we need you to intervene on an emergency basis and stop the injunction against us because we really need this rule to go forward. But also, this rule is not so important that it triggers the major questions doctrine and makes you wonder, where do we get the authority to do this? And not so important that it triggers the Gregory v. Ashcroft federalism doctrine and makes you wonder, why can the federal government take over the elections? And that can happen. That's not logically inconsistent to be like, it's minor enough that we should be allowed to do it, even though the statute doesn't really say anything about it, but major enough that you have to intervene on an emergency basis to let us do it. But it's a tough line to walk.

[00:39:09] [Dan] Yeah.

[00:39:09] [Will] It's funny, the Purcell principle, which we've talked about before, and which is also going to lurk in the background of any litigation against the Post Office rule, started—

[00:39:19] [Dan] Although how to apply it here is weird, right?

[00:39:21] [Will] It is. So imagine, I mean, again, imagine with the new litigation, now we have the federal rule, federal Post Office rule, and we have an injunction against the federal Post Office rule. A defender of the federal rule might say, Well, you can't— even if the federal rule's invalid, you can't enjoin it now because it's the eve of the election. And well, then a reasonable person might say, hey, you're the one changing the rules on the eve of the election. They would say, oh, but in Callais and Allen and Abbott, the Court said when the political branches meddle on the eve of the election, that's their business, and courts aren't supposed to stop them meddling on the eve of the election because that is itself a form of meddling.

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

[00:40:00] [Will] Now, those cases say it about legislative action, Yeah. And it's easier to— legislative action over bodies that clearly have jurisdiction over the thing in question. And I have to think the Court doesn't mean to say that about executive branch agencies that have no authority over the thing on the eve of the election. This was once a specter. If on the literal eve of the election, on the night before the midterms, the president were to announce that he was deploying all of the armed forces to confine to their homes all Democrats and not let them vote, and then there was an injunction and he said, This is totally unlawful, I agree, but the Purcell principle means you can't stop me. I take it nobody would buy that.

[00:40:35] [Dan] Yeah. That seems like— I mean, usually it's not government versus government, it's plaintiff versus government. Right.

[00:40:43] [Will] And I do think, I mean, the easiest way to do that, I wrote a short post about this on the Divided Argument blog, is the statement of the principle the Court has often described is about not enjoining election rules. And so, I don't know, the Court's never really thought what that category is, but I think they would say, well, implicitly we meant when the body legally entitled to regulate elections, regulates elections, we are very wary about enjoining those. But when a body that is not particularly empowered to regulate elections just jumps in to meddle in elections, they don't get to make the same kind of claim, especially when it's government versus government and so on.

[00:41:18] [Dan] Yeah.

[00:41:19] [Will] But I was just going to say, it's funny that we started with a general principle of it's important that the rules be stable before the election, and that's one reason courts should stay out of it. To— I mean, as we know, as talked about, more like it is important that we stand back and allow instability to prevail rather than intervening ourselves, or possibly even intervene to allow instability to prevail, because previous attempts at stability were themselves too close to the election.

[00:41:51] [Dan] Yeah.

[00:41:53] [Will] Yeah. I worry that we've lost the plot.

[00:41:56] [Dan] Okay. So you had said, when we were talking about a lot of the ongoing fallout from Callais, and I think it was in the context of, was it the Allen v. Milligan thing, or was it the Callais speeding up the mandate? Yeah, or both. One or the other, you said basically in these contexts where you're talking about interim docket type things, it is the Court should be more concerned with appearances because of the risk of seeming like the Court is engaged in partisan meddling than it should in other contexts. Is that fair?

[00:42:35] [Will] I did say that, yes.

[00:42:37] [Dan] Okay. How does that apply in this case?

[00:42:43] [Will] I mean, if— let me put it this way. A very smart and good friend, who is normally a standing hawk and quite conservative, wrote to me to say, I'm a standing hawk and conservative, but it's August and right before the midterms. Shouldn't the Supreme Court just be saying, stop meddling in the election, President Trump, or something like that? So I think that would be a version of that view. Now, I'm more okay with this one by itself. So I guess I am still not sure how strongly I take that principle.

[00:43:19] [Dan] Is it because you think it'll get back up there quickly?

[00:43:22] [Will] Yeah. Again, I think assuming that chapter 2 of this story is the Supreme Court saying, no, we're not going to suddenly upend the mailing of ballots across 50 states, whether for the balancing of the equities or the major questions or the federalism canon or some mix of the 3 or whatever, assuming that's true, then I'm more okay with this one. And that's why I said it would be insane if that's what's going to happen.

[00:43:47] [Dan] Yeah.

[00:43:48] [Will] Now, if that isn't going to happen, that's going to be insane, which is not good.

[00:43:56] [Dan] Okay. Well, we will find out. I like the prediction. We do have our ongoing prediction analyzer for which we did have some updates this episode, by the way.

[00:44:08] [Will] I'm not doing very well, am I?

[00:44:10] [Dan] No, you had— there was one good one and then a couple that were flagged as judgment calls. But your good one, I think, was your prediction about what's going to happen in the next case we're talking about.

[00:44:23] [Will] The ballroom, where I said they're going to get it wrong because everybody says they're going to get it wrong.

[00:44:28] [Dan] Well, I think you said that the DC Circuit will be reversed on standing grounds.

[00:44:31] [Will] Yes, I said that.

[00:44:32] [Dan] Which does not seem obvious to me, but if that's what everyone thinks, I assume they're right.

[00:44:36] [Will] Yes.

[00:44:36] [Dan] I thought you were saying it isn't obvious that the Court is going to do that. Yeah, I guess. Were you saying it's not obvious that that is the correct answer?

[00:44:46] [Will] Well, both.

[00:44:47] [Dan] Okay.

[00:44:48] [Will] This is always the problem with predictions is if you naively believe that most of the time the courts follow the law, then most of the time you look at the materials and you think, well, this is the right answer, so I assume the Court will see that. And now sometimes you can then say, okay, this is the right answer, but I understand the Court's not going to agree with me. And, you know, I got there in part because that's what everybody else was predicting.

[00:45:11] [Dan] Okay. We have 2 dissents here, one by Justices Sotomayor and Kagan, by Justice Sotomayor joined by Justice Kagan, and then another solo by Justice Jackson. The Justice Jackson dissent is significantly longer.

[00:45:33] [Will] Mm-hmm.

[00:45:35] [Dan] Hers is 23 pages, and the Justice Sotomayor one is only 4 pages. What do you think's going on here? What's the divergence among the liberal justices? I mean, the Jackson one is coming in a lot hotter. Yeah.

[00:46:00] [Will] The Sotomayor one is certainly the most— has a bit of a don't panic flavor to it.

[00:46:07] [Dan] Yeah.

[00:46:07] [Will] I mean, the Sotomayor one is saying— I mean, it opens with, to be clear, they're not saying this is okay. We're just not deciding yet. And then she says, and that's bad. We should decide now this is not okay. But, you know, we're not saying it yet. And I hope that's true. The Jackson one obviously is taking a much bigger aim at the merits of it. It's also, I guess, This has become a Jackson theme in the interim docket things that maybe started in Trump v. CASA. I can't remember if it started before that, which is her view, which is, I think, a good argument. I'm not sure I agree with it, but it's a good argument that it's a mistake in any of these cases to analyze only the merits of the threshold issue that the government has cherry-picked to ask you to view.

[00:46:57] [Dan] Mm-hmm.

[00:46:58] [Will] What happens in this case is the government is enjoined from implementing this executive order, and then they come to the Court and say, you've got to stop this because there was no standing. And what Justice Jackson would like to— I mean, sort of her recurring theme is, well, okay, we are now being asked to intervene equitably and issue a stay. Shouldn't we figure out who's right in a broader sense here?

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

[00:47:21] [Will] And you could put that doctrinally in multiple places by asking, what is the merits? Is the merits just the threshold issue, or is the merits the merits merits? But also it goes into other factors. You could say, do we really have an irreparable injury if we've been enjoined from doing something illegal? Maybe not. And certainly we get to equity and balance in the public interest, the balancing stage. You could certainly say, is it in the interest of equity to greenlight illegal conduct? Even if it's true that the injunction was maybe issued on a foot fault or something, is that really where—

[00:47:55] [Dan] Yeah.

[00:47:57] [Will] Is that really the right side? And so going all the way back to CASA, she's wanted to say, why are you closing your eyes to how illegal this is? And so that necessarily pushes her much deeper into the merits and also is part of why she has to frame the whole thing differently, because she's complaining all these cases have been misframed.

[00:48:19] [Dan] Yeah.

[00:48:21] [Will] I think it's not a crazy argument. That you should think about the big picture, especially if this is a discretionary equity call. The one worry I have is I think we all know that asking the Court to dig into these novel, hard merits questions that are politically charged on the interim docket, it's not the thing they're best at.

[00:48:44] [Dan] Mm-hmm.

[00:48:45] [Will] So she is asking for more of that.

[00:48:51] [Dan] Yeah. And the risk being that they're more likely to get it wrong or more likely to be partisan in that context.

[00:49:00] [Will] Right. I mean, the hope would be from her point of view, even the majority recognizes that this is mostly illegal. So if you force them to ask that question, even they would say, no, no, you can't do this. Or recognizes that deciding whether this is illegal is so hard and so weighty that if you said the only way you can grant a stay is to do that, they would say, eh, we don't want to grant a stay. The risk would be Justice Kavanaugh would say— No, totally fine. I am willing to stay up all night reviewing the merits of any important legal question at all times because we're open for business. And that doing so in the middle of the night on a fast clock is more likely to lead the justices to be sympathetic to a side that is not the one Justice Jackson wants them to favor. So I'm not sure she would like it if she got what she wished for.

[00:49:45] [Dan] It also lets another shoe drop in the Kafkaesque nightmare that our precedents have been steadily creating for certain plaintiffs who seek to bring election-related challenges. Is that a mixed metaphor? I think so. Shoe drop and Kafkaesque nightmare?

[00:50:04] [Will] I think so. Unless, I mean, it could be a unified metaphor. So I'm not sure.

[00:50:10] [Dan] It cannot be that the shoe is in the nightmare, you're having a nightmare about shoes dropping.

[00:50:15] [Will] Yeah. So if you have a nightmare where you're being stalked by an authoritarian presence, an authoritarian dictator trying to steal democracy, and he's creeping up behind you and you hear clop, clop, clop, then the next shoe drops, clop, the nightmare's getting closer. That could be what she's going for?

[00:50:36] [Dan] Is that really what shoe drop means?

[00:50:39] [Will] I don't know.

[00:50:40] [Dan] Okay. Yeah, sorry, I don't mean to— sometimes things with the writing and various opinions just kind of annoy me.

[00:50:48] [Will] I have a bad habit. I often write in mixed metaphors. I've written a lot of metaphors, but I do try pretty hard to— I don't take them out probably as much as some people wish I would, but I do try to unmix them. If I started with a metaphor, then I might well return to the metaphor sometimes again, maybe more than I should, but I do try to unmix them.

[00:51:10] [Dan] So you don't mix them, you're saying? Or you're saying you use too many metaphors but don't mix them?

[00:51:15] [Will] Right. So if it were me, one argument would be, should we write the sentence just by taking out the shoe and the Kafka's nightmare and just say, Whatever. It also lets— continues the bad trend of our accumulating precedents or something rather than having any. But if you were going to keep it, then I'd really want to lean into it. I'd want to figure out what is the nightmare or figure out where the shoes go and then try to make it work.

[00:51:45] [Dan] So I did some real-time research and I'm told that the metaphor comes from an American joke of the late 1800s or early 1900s, not from any literary source. A lodger comes home late, sits on the bed, drops one shoe loudly on the floor, then remembers the sleeping neighbor below and sets the second shoe down quietly. Just as he drifts off, a shout comes from downstairs. Well, drop the other one. I can't sleep waiting for you to drop the other shoe.

[00:52:12] [Will] Ah.

[00:52:13] [Dan] Which also suggests that you shouldn't say another shoe drop, like there's like a string of shoes. There's really just 2 shoes. There's the other shoe and the first shoe.

[00:52:21] [Will] Yes. And it's the other shoe that you're kind of waiting for.

[00:52:24] [Dan] Yeah. Rather than the Court keeps dropping the shoes. So I don't know. I don't like this writing. I don't like that sentence.

[00:52:33] [Will] The story also implies that you should look at the shoe drop. In the story, the—

[00:52:39] [Dan] Yeah. The fear is the impending shoe. To mix your metaphors, we've got our sword of the shoe of Damocles.

[00:52:49] [Will] Yeah.

[00:52:51] [Dan] Is waiting to drop. Although the shoe, I mean, in the joke, the shoe has already dropped. It's just dropped in a non-audible, in an inaudible way.

[00:53:02] [Will] Right. That could be true here. If part of the point is the Court actually kind of knows that this postal regulation is going to be enjoined, but they're just not telling anybody, and now we're all waiting around, waiting for them to drop their shoe when they've actually quietly put it down. The fact that we don't know what they know and are now waiting up at night worrying about it, you could get somewhere with that metaphor.

[00:53:26] [Dan] But sometimes you either need to commit to the metaphor or not do it.

[00:53:31] [Will] Yeah.

[00:53:31] [Dan] Okay. So what else to say about the dissent by Justice Jackson? There's a lot in there, a lot of footnotes, a lot going on.

[00:53:42] [Will] I have nothing else to say about the dissent. I think some of this will also be— if indeed the other shoe drops and we get more ruling, then we're returning to a lot of these bigger issues, some of the issues in the dissent. One, just comment on the opinion, which is also relevant to the next opinion. I just have on my desk the latest issue of the Supreme Court Review, the faculty-edited journal that Justin Driver and David Strauss and I, and until recently, Jeff Stone, all co-edit. And it has an amazing article in it by Richard Re called The Standing Realignment, about how back in the old days when we went to law school, the standing alignment was always that conservatives were against standing and liberals were for it. But we need to see that that doesn't happen anymore. And it says it's been 5, 10 years since that's happened, and pretty much all the cases now are more like the student loans cases or Bost, or cases where it's the conservatives who are for broad standing and the liberals who are complaining about it. It appears that rumors of the standing realignment may have been slightly exaggerated, because this is just like an old-school lineup. 6-3, no standing. Conservatives say no standing, liberals say standing. It's like straight out of the 2010s.

[00:54:56] [Dan] And is that, you know, is maybe the standing realignment a function of the Biden administration? And then as the administration flips, we go back to conservative? Hawkishness?

[00:55:10] [Will] Maybe. I mean, so obviously these theories of realignment are partly based on the political stakes of standing. And yes, it's especially likely when the president was Biden that there would be that kind of alignment. But it's always a little confusing why standing is so political, because if the justices are really political, they could just be political about the merits. You could— a political, political justice could just say the executive order is fine.

[00:55:41] [Dan] Standing in the good guys win, relative to who the good guys are.

[00:55:45] [Will] Judge— defame your favorite Trump 2 shortlister, but Judge So-and-So might say, look, a bunch of Democrats—

[00:55:56] [Dan] It's not defamation if it's true.

[00:55:57] [Will] Yeah. A bunch of Democrats and aliens are trying to steal the election, and the president's stopping them, and he's vindicating a Republican form of government, and good for him. Now, if you were a justice who both is sympathetic to some of the policy priorities, but isn't actually sure if they're totally lawful, then you might be too ashamed to lie and say it's lawful, but not be too ashamed to say there's no standing. But yeah, it's a little weird. And so I'm not in any way criticizing the article, which is, I also should say, is also co-authored by Yoav Paz along with Richard Re. They're great. It's a great article. But it is funny, the timing of seeing that and then seeing this classic unrealigned case at the same time is funny.

[00:56:43] [Dan] Yep. Okay, onto the next one.

[00:56:48] [Will] Okay. This one maybe has gotten more news than the other one despite being less important.

[00:56:53] [Dan] Yeah, I think that's right. So this is about the ballroom. The construction of the White House ballroom. The president demolished the East Wing of the White House, which seems like a shame because it was a historic building, and is in the process of building a great, big, beautiful ballroom on top of its location.

[00:57:19] [Will] Uh-huh.

[00:57:20] [Dan] Seems like there's a pretty good argument that that was illegal, that basically building new buildings or Things like that have to be authorized by Congress.

[00:57:29] [Will] Okay. So yeah, on the merits, one argument would be building new buildings has to be authorized by Congress because 40 U.S.C. § 8106 says you can't build any building or structure on any reservation, park, or public grounds of the federal government in the District of Columbia without express authority of Congress. Now, you might say this is not a new building or structure, this is just a renovation to the existing building or structure. It's clearly not a new building. It is kind of a structure, although—

[00:58:00] [Dan] It's gotta be a structure, right?

[00:58:02] [Will] Well—

[00:58:03] [Dan] Just because it's connected?

[00:58:04] [Will] I mean, when does a renovation become a new structure is a kind of line-drawing problem. And there are these various examples in the history of the White House. I think, is it President Nixon who built a tennis court which had nets? Are the nets structure? Probably not. There's also a funding problem. Whatever the statute says, also, Congress has not appropriated the money to do this. Now, the president has gotten some private donations, and there's a complicated set of funding streams that can be reallocated. And so the merits are tricky. I think I'm with you that it's probably not authorized, but it's tricky.

[00:58:47] [Dan] Yeah. And I think I just said there's a strong argument, right? Okay.

[00:58:51] [Will] Yeah. I think I agree with you that there's a strong argument.

[00:58:53] [Dan] Okay. I think you have to agree with me that there's a strong argument because the Chief Justice says that, right?

[00:58:59] [Will] I have been known to disagree with the Chief Justice before, including in cases involving President Trump.

[00:59:06] [Dan] Have you ever said, well, maybe you have said, but something that he thinks is right, or at least is a strong argument, is not close? Maybe you felt that way about Trump v. Anderson.

[00:59:17] [Will] Or Trump v. United States.

[00:59:20] [Dan] Yeah, you felt the same way. I know you didn't agree with that one, but you thought that was equally unclose?

[00:59:27] [Will] I mean, neither of them was like— well, I think there were in Trump v. Anderson arguments, maybe even, I don't know, strong, but not laughable arguments in favor of the president. I don't think the argument that the Court came up with was one of them. The argument the Court came up with managed to be worse than all of the arguments the president came up with.

[00:59:50] [Dan] Okay.

[00:59:54] [Will] Yeah. But anyway, okay. So, but the Court doesn't get into the merits. The Court says, again, no standing.

[01:00:03] [Dan] Okay. And it does so in a way that at least arguably changes existing law. I mean, doesn't purport to be, right?

[01:00:12] [Will] Right. So the majority says, as the dissent below says, as many smart commenters said, this is a novel theory of standing, broader than any theory of standing we recognize in our precedents. Here is the theory of standing. So the plaintiff is the National Trust for the Historic Preservation of the United States, which is an association. It has standing if one of its members has standing. Its member is a woman named Alison Hoagland who lives in DC, who regularly goes to the White House, to the President's Park right outside the White House, and looks around and enjoys looking at it, who is an architectural professional and who likes looking at it the way it is or the way it was.

[01:00:56] [Dan] Mm-hmm.

[01:00:57] [Will] And she doesn't like this because now it's going to look different and bad. And so it's going to diminish her enjoyment of the White House and the surrounding park.

[01:01:06] [Dan] Although, isn't her enjoyment already diminished? Is there anything left to not diminish?

[01:01:14] [Will] Good. Okay. So one place you could slice and dice this, which is not quite how the Court does, but is closer to how the government tried to argue this, is, look, she liked looking at the old— at the East Wing, which is beautiful. But it's gone. There's nothing to do about that. So her aesthetic injury as to the destruction of the East Wing is moot. Now, she also says, also, I don't want to see the big ugly ballroom. On a hierarchy of looking at things, the old White House is top, the new ugly ballroom is worst, and the status quo is not as good as it could be.

[01:01:52] [Dan] The hole in the ground?

[01:01:53] [Will] Yeah, it's better than nothing. Especially because the hole in the ground, you can't see very well from outside, but the big ballroom, you will be able to. That is her theory. Now, so she is drawing on a long line of cases where the Court, including justices like Justice Scalia in Lujan, has said, of course, there is standing for aesthetic injuries to people who enjoy things like national parks.

[01:02:18] [Dan] Yeah. Or seeing the Nile crocodile.

[01:02:21] [Will] Right. Cases where people say either, I like seeing this animal, and it's going to die and I won't be able to see the crocodile. Or people who say, I want to picnic by the river and you are polluting it. Or who say, I want to go visit Yosemite or Mineral King or some mountain and I don't want you to build a ski lift on it. Things like that. Now, you might have thought that for arbitrary reasons, those cases would be limited to national parks, but it turns out the White House is a national park, so that doesn't work. I listened to the entire DC Circuit oral argument in this case. Because there's another podcast called Audio Arguendo where somebody just uploads cool courts of appeals arguments about contested cases with no explanation. So it just pops up in your feed. And so I just started listening to it. Anyway, that's her theory. So yeah, you could say— what could you say? You could say aesthetic injuries don't count, that we were wrong. Just say goodbye to the crocodile. You could say—

[01:03:23] [Dan] And the Court does not want to say that.

[01:03:26] [Will] I don't know if they want to.

[01:03:27] [Dan] Well, sorry, they want to avoid saying that here.

[01:03:32] [Will] Right. They certainly don't say that here.

[01:03:34] [Dan] Yeah.

[01:03:35] [Will] They acknowledge there are these cases about the river and about the crocodile, and they say those are different because in those cases, the plaintiff's injuries were more than just being offended. Whereas here, the injury is just offense, disagreement, or distaste.

[01:03:53] [Dan] Yeah. I mean, basically, they seem to want to try— the move seems to be to reframe this as she's just doing this because she's mad about this lawless thing.

[01:04:08] [Will] Yeah.

[01:04:08] [Dan] Right?

[01:04:10] [Will] I guess. Although, she may be mad about it. They don't seem to deny that she finds it ugly and offensive. I mean, if you thought— I guess if you thought that she would not be offended by the ballroom if it were built by Biden, if it were the Biden ballroom, she would think it was cool and ballsy. That would be a theory. I don't quite know how our standing theory would make that work exactly.

[01:04:34] [Dan] The Court says, adopting the Trust's unprecedented and limitless view that offense alone suffices to establish a concrete and particularized injury, would seemingly usher in a world where virtually every citizen had standing to challenge virtually every government action that they do not like.

[01:04:51] [Will] Right.

[01:04:52] [Dan] But which, which is not correct, I think, if you take, you know, the plaintiff's theory seriously.

[01:04:58] [Will] She objects to its scale, height, and massing, right? She finds it aesthetically unpleasant.

[01:05:03] [Dan] Yeah.

[01:05:03] [Will] And if that's an offense objection, which doesn't count, then similarly, if the president were to build a ballroom in Yosemite on top of El Capitan or in the middle of the Grand Canyon or other places where it disrupts some well-established American view, would the Court say, oh, that's fine? Or a ski lift or a road. A lot of these environmental law cases are about building a novel kind of ugly structure next to a thing of natural beauty. Mm-hmm. Now, again, you could arbitrarily limit the cases to natural beauty, so if you like looking at mountains, that's one thing, but if you like looking at buildings, that's different. They don't quite do that.

[01:05:43] [Dan] Yeah.

[01:05:44] [Will] In their defense, though, I mean, they are right that this can go too far. So in Alliance for Hippocratic Medicine, the case where the conservative doctors were trying to stop the issuance of mifepristone, one of the arguments for standing made explicitly below by Judge Ho was, this is just aesthetic standing. They like babies. They want to see babies, and the babies are going to die. And that's just like crocodiles. If you're standing to say, I want to see a crocodile, and the crocodile's going to die, why can't you stand to say, I want to see a baby, and the baby's going to die? And the Court unanimously rejected standing there. It didn't really explain, except in a footnote, what was wrong with the aesthetic injury. So, you know, they are kind of right that you have to draw some line that is like, I want to see X.

[01:06:28] [Dan] Yeah.

[01:06:28] [Will] Because you could turn almost anything into a desire to see things case. But if you had to draw a line between wanting to see national parks on the one hand and wanting to see babies whose mothers otherwise wouldn't have brought them to term, the ballroom seems closer to a national park than to a baby.

[01:06:46] [Dan] Yeah, I agree with that.

[01:06:48] [Will] Can I give you one more that's floated?

[01:06:51] [Dan] Sure.

[01:06:51] [Will] Okay, so I wrote a blog post also on the Divided Argument blog complaining about this. See, when you don't let me record, Dan, I have to vent elsewhere. And one argument I got from several quarters was the key difference is between seeing things and not seeing things. There's standing to say, I want to see something, but there's not standing to say, I don't want to see something. And so if— that's why— if this argument would be, if she said, I wanted to see the East Wing, you took it away from me, she would have standing to say that. And that's not limitless. That's how—

[01:07:24] [Dan] What if she just were able to say, had said this, I don't exactly know the layout. It's been a long time since I've seen the White House grounds, but construction of the ballroom will make it harder to see the West Wing or the center of the building. Does that suddenly work?

[01:07:40] [Will] I think that might work, but it's not true, just given the layout.

[01:07:44] [Dan] But also, it wouldn't work, right?

[01:07:46] [Will] Right. Well, again, even Judge Ho, he phrased his theory as an, I want to see things. He said, I want to see the babies. And that didn't impress the Court. And similarly, again, if you build a ballroom on top of El Capitan, you could say, I don't want to see this ugly ballroom on top of my mountain face, or you could say, I want to see the mountain face unrestricted by the ballroom. So I suspect almost any I want to see X and I don't want to see Y claims could be reframed by redefining X as being X without Y. Yeah.

[01:08:21] [Dan] Okay. Are you surprised that the Chief Justice is in dissent here? It's a 5-4. The Chief's in dissent.

[01:08:28] [Will] I guess I was a little surprised. I mean, I'm pleased.

[01:08:32] [Dan] Do you think he's in dissent because he has a lot of respect for historic buildings? He seems kind of annoyed about the demolition of the East Wing.

[01:08:42] [Will] He's not very pointed about it, but one theory is he's in dissent because he is the head of the Smithsonian Institution, and so has spent a lot more time thinking about the buildings and public trust and these various issues. And so it's just like takes those rules seriously and has priors about them and so on. And might be thinking about the Kennedy Center, Kennedy-Trump Center, and those kinds of things. There are several references to Teddy Roosevelt and seeing the White House as a public trust, et cetera. So there's kind of like, if you are an institutionalist, which some people believe he is, you might think this kind of elevating your own personal vanity over the long-term history of the institution is just especially offensive. My theory is the Chief Justice is a really good lawyer who takes standing doctrine really seriously. And even though he's not, you know, I don't know that he liked these aesthetic standing cases or, you know, would have necessarily gone down this road 50 years ago if somebody had asked him. Like, when you're a really good lawyer and take the doctrine really seriously, and then somebody comes up with just like a totally BS, barely even explained waving away the doctrine, like, sometimes just at the level of professional craft.

[01:10:02] [Dan] Yeah.

[01:10:05] [Will] You just can't sign onto it without being embarrassed.

[01:10:10] [Dan] Did you have a guess as to who wrote the per curiam here?

[01:10:14] [Will] Oh, I'm curious what you think. One theory I have seen is that it's Justice Kavanaugh.

[01:10:21] [Dan] That was sort of where I was going to land.

[01:10:23] [Will] I think it's Justice Gorsuch for 2 reasons. I'm not at all sure about this. See, now every time I say something like this, I'm like, okay, is this prediction ever going to be falsified? I'm not sure we're going to find out.

[01:10:38] [Dan] I mean, based on the stuff we were talking about earlier in the episode, I think not until Justice Gorsuch and all his colleagues are dead.

[01:10:47] [Will] Well, Claude is pretty good at figuring out the authorship of things. I don't know if you started trying to have it figure out the authorship of per curiams.

[01:10:53] [Dan] Yeah, I did at one point try it out. It wouldn't do it for me. That was quite some time ago. I bet it would do it for me now.

[01:11:00] [Will] Yeah. We should do a project at some point where we specifically train it on the majority opinions and then give it the per curiam and see. So I think just this Kavanaugh has a slightly breezier approach to these precedents. It's like this case recognizes the precedents, describes their holding, and then says they're different because they're about offense. And I think the standard Kavanaugh play would be not even to do that.

[01:11:22] [Dan] Yeah, just have a sentence.

[01:11:26] [Will] Yeah, you just say no. Also, there's a different paragraph when you get to— we haven't talked about this yet— when you get to the other factors of the test, like the irreparable injury. So what is the irreparable injury? So this is in 2, page 6. The government has established irreparable injury. Start with this. And there's a paragraph that just has a very Gorsuch-y ring to it.

[01:11:52] [Dan] Yeah. Okay.

[01:11:53] [Will] And it's also— the start with this is kind of funny substantively. So, what is the government's irreparable injury in not being able to build the ballroom right now? Start with this: the district court likely exceeded its Article III authority to enjoin the activities of a coordinate branch of government. And the paragraph's just about how the district court violated Article III.

[01:12:11] [Dan] Yeah.

[01:12:11] [Will] Now, why is a district court violation of Article III an irreparable injury to the president? This is never explained.

[01:12:20] [Dan] Yeah. Isn't that kind of double counting too?

[01:12:22] [Will] Well, it's also not even clear whether the paragraph actually asserts that it is an irreparable injury. It's just like, start with this. I'll start with it. Now what? That paragraph felt like Gorsuch to me.

[01:12:36] [Dan] Yeah. Okay.

[01:12:37] [Will] All right.

[01:12:37] [Dan] Yeah, I think you're moving me. And the other one?

[01:12:43] [Will] Those are my 2 reasons.

[01:12:45] [Dan] No, no, sorry. The other opinion, Trump v. California.

[01:12:50] [Will] Oh, who wrote that one? Oh, I don't know.

[01:12:53] [Dan] Chief?

[01:12:54] [Will] Chief, I guess.

[01:12:55] [Dan] Sure. Yeah.

[01:12:57] [Will] Isn't the assumption that the Chief writes all the per curiams unless he's too busy or dissenting from them?

[01:13:04] [Dan] I mean, that's a reasonably— I mean, as a default assumption, that's probably pretty safe. I'm sure it's not 100%. Yeah.

[01:13:12] [Will] Maybe they could have been written by a committee or something.

[01:13:14] [Dan] Yeah.

[01:13:15] [Will] Interestingly, these opinions both also had the feature that the justice they were referred to was in dissent in them. So the election case went to Justice Jackson, and then she dissented. This case went to the Chief, who entered by himself an administrative stay. And when that was entered, people thought, okay, that suggests the Court's going to reverse, which they were. But additionally, he was then dissenting from that. Presumably what happens is he gets the application, circulates something to the Court saying, I propose we deny, and then hears enough back to recognize that's not what's going to happen. And so then issues it, but I'm not sure.

[01:13:51] [Dan] That's possible.

[01:13:52] [Will] So Dan, while we've been sitting here, the Court has issued another per curiam ruling in an emergency case.

[01:14:00] [Dan] Oh no, I didn't even get this.

[01:14:02] [Will] Okay.

[01:14:03] [Dan] That's terrible.

[01:14:04] [Will] About an issue I have not been following, so I'm going to propose we don't talk about it.

[01:14:09] [Dan] Okay.

[01:14:10] [Will] The case is National Republican Committee v. Sherrod Brown, and it deals with the FCC's lowest unit charge requirements.

[01:14:21] [Dan] Okay. Yeah, we're going to have to do this later.

[01:14:25] [Will] Okay.

[01:14:25] [Dan] Some other time.

[01:14:27] [Will] Okay. It appears to be 8-1, with Justice Jackson alone dissenting. It's only 5 pages. So if you really wanted to do a test article—

[01:14:35] [Dan] A real-time reaction.

[01:14:36] [Will] We could do a live read and breakdown, but I propose we don't. I'm just going to say it's out there.

[01:14:45] [Dan] Okay. Well, maybe we'll catch up on that. Might be a little while before the next episode. As I said, I'm a little swamped with all this teaching stuff, but I do like that we are continuing to extend our record-breaking season.

[01:15:01] [Will] Yeah, we have until the first Monday in October, so everything this month goes on that.

[01:15:06] [Dan] Yeah, still counts. Yeah, I'm just— But we don't want to set it too high because then it's hard for us to break it again.

[01:15:15] [Will] Well, that's a route to mediocrity then.

[01:15:18] [Dan] Oh, don't you want to just keep breaking your own records? You don't want to stagnate.

[01:15:23] [Will] Sure.

[01:15:24] [Dan] We don't want to peak too early.

[01:15:26] [Will] Yeah, but I'm thinking—

[01:15:26] [Dan] You want to peak at season 6?

[01:15:29] [Will] No, but if we release more episodes now, we'll just have to release more episodes next season.

[01:15:34] [Dan] Well, that's true. I think the beginning of season 7 will be a little slow as well. Often the beginning of the term is a little slow, but it'll be a little slow for me until I get through my big teaching semester. But once we get to Thanksgiving or so, I'm going to be able to pick up the pace. Do you have a big teaching semester coming up? Or quarter?

[01:15:55] [Will] Yeah, we're going on quarters. I mean, I have a con law, a big class in the fall.

[01:16:01] [Dan] Okay. So you're busy when I'm busy.

[01:16:04] [Will] Yeah. But I can always make time for the podcast.

[01:16:06] [Dan] Well, yeah. You don't even prepare. You just walk in there and it all flows naturally. It doesn't work for some of us.

[01:16:14] [Will] Yeah. Don't tell people that. I read them. I read the opinions beforehand.

[01:16:21] [Dan] One time I asked you for notes and your notes were just like, 3 questions or something.

[01:16:27] [Will] So actually, Claude is good for this. The way I teach is I have a new Word document for every class that contains— it's usually 1 to 3 pages— that contains the big points I want to hit that day and quotes and things I want to— but the point is it has to be short enough that I can actually have it in class and keep track of where we are, which I can't do if I have a long thing. And every time I teach it, I have a different version of that. And so people occasionally ask for teaching notes and then I give them that and they're like, Yeah, thanks, Will. This is a cocktail napkin with a smiley face in the back. But actually, Claude has gone through and taken all of my teaching notes and integrated them and then smoothed out repetition and turned them into one document that actually is much more usable. I mean, it still maintains that cocktail napkin vibe, but— Yeah.

[01:17:15] [Dan] I'm a bit more scripted. I need a little bit more of a lifeline in class.

[01:17:24] [Will] And then do you read your script? What do you do with the document in class?

[01:17:28] [Dan] No, I don't read it. I write out basically a script of what I'll say for the lecture part at the beginning. I do not read it word for word at all. It mostly just is a kind of structure, but having gone through the process of once writing it out, I found helpful. And then for talking through the cases with the student cold calling, I at least have a list of beats I want to hit. I don't always do them in that order. I skip some of them.

[01:17:59] [Will] Right. For me, it's more like the beats. It's like, these are the 5 important things for this case we have to hit before we're done with it, because I don't want to lose track of that. Or, this is the order I'm going to go or something. Sometimes when I've developed particularly good hypos or something, I want to write those out so I remember them and use them in the moment. But I try to be in it in life. That's my life philosophy. I try to be in the moment.

[01:18:33] [Dan] Okay. That's good. I don't know. I'm always a little nervous in the moment, so I need a little bit more help.

[01:18:40] [Will] Okay. Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors, and thanks to Debra Cafaro for your support of the show. And thanks to the Supreme Court for dumping this order on us while we were recording. I got a text about it only as we were recording. It's the only reason I even knew.

[01:18:55] [Dan] I don't have good enough friends to text me these things while I'm recording. Please rate and review wherever you get your podcasts. Website, dividedargument.com for transcripts, blog.dividedargument.com for commentary from the extended universe of commentators, including some posts about the ballroom case that we talked about. store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com. Leave us a voicemail, 314-649-3790, or a voice message on our website. And if there's a long delay, it's going to be because I am struggling so hard to understand fed courts because I'm using—