Smooth Stone in the River

[00:00:19] [Will Baude] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

[00:00:26] [Dan Epps] And I'm Dan Epps. So a few things to catch up on. Will, we are back in the studio after I believe a successful live show at the American Law Institute. Last live show for a little while. I think I had a good time there.

[00:00:44] [Dan] Got to have drinks after with super fan of the show, Beth Wilkinson. Uh-huh. So that was fun. Did you did you stick around for more of the ALI meeting?

[00:00:54] [Will] Yeah. I was there. I was there some of the time.

[00:00:56] [Dan] Did you did you vote on anything or debate anything?

[00:01:00] [Will] There's a whole bunch of business. They have a new head. They have new members. But, you know, but it happens sort of by a voice vote. So it's not very

[00:01:08] [Dan] You didn't pick any fights?

[00:01:09] [Will] I did not pick any fights there.

[00:01:13] [Dan] Elsewhere? Well,

[00:01:14] [Will] you know me,

[00:01:15] [Dan] Dan. No. Not really. You're a man of mystery. You both pick fights and don't pick fights.

[00:01:23] [Dan] Right? You're personally non confrontational and friendly to everybody and impossible to rile despite my best efforts.

[00:01:33] [Will] But then I say things that like, Callais might have been right over the text of Voting Rights Act and everyone gets mad.

[00:01:37] [Dan] Yeah. I mean, other people get mad, but you're just a smooth stone in the river. Pick your metaphor. Okay. So let's try to be efficient.

[00:01:49] [Dan] You've got to go before terribly long and so that imposes a constraint. I feel like we've been doing a little bit better on accomplishing our agenda on a on a timeline. See if we can do that. We've got a, you know, some news to talk about. We've got a summary reversal.

[00:02:11] [Dan] We've got some merits cases. So let's see what we can do. First thing, supreme does this qualify as Supreme Court news or gossip? This is you know you know what I'm about to talk about. Right?

[00:02:25] [Dan] Yes. This is something we could have talked about last time, but I thought the American Law Institute was maybe not the right venue, which is the Neal Katyal tweet and TED talk.

[00:02:38] [Will] No. I will confess, Dan. I did not actually watch the TED talk in its entirety. Did you watch it? Can you summarize it?

[00:02:44] [Dan] I did not. I did read Josh Blackman's, you know, transcript slash summary of it. Josh, you know, I think we've criticized him on the show here and there, but this was a place where he performed a valuable service to the legal community of kind of transcribing it and providing.

[00:03:04] [Will] Several people several people told me they thought that was one of the best Josh Blackman posts of all time.

[00:03:09] [Dan] Yeah. No. It was it was very, very useful. But so the tweet was Neal kind of announcing that his TED talk was about to go up, and it's kind of a long tweet. I'm not gonna read the whole thing, but the gist of it is he basically says, you know, people thought it was gonna be impossible for me to win the tariffs case, and I did it six to three.

[00:03:36] [Dan] It was all me. I had all these coaches, a mindset coach, an improv coach, a meditation coach, and most importantly, Harvey, the AI, which he says he spent a long time training to ask incredible, you know, questions that channeled what the justices would ask. And I think it's safe to say this tweet produced a lot of extremely negative reactions across the legal world because it was just so shamelessly taking credit for a win, which, you know, first of all is not really the thing you're supposed to do. Right? As the quarterback, you're not supposed to at the end of the game say it was all me a 100%.

[00:04:23] [Dan] And second, you know, I think it's not accurate, right, to say that this was a case where, you know, it was doomed to be a loser, but Neal Katyal's incredible advocacy saved the day. I just I don't think that that's accurate.

[00:04:36] [Will] Dan, to be fair, paragraph five of the 15 paragraph tweet does say I had the best legal team in the nation, especially Colleen Roh Sinzdak and [unclear] Liberty Justice Center and so on. So there's somewhere there.

[00:04:51] [Dan] Little bit of the team thanking there, but a lot of self praise. Yeah. And I think it gets a little bit worse if you look at the transcript of the talk in, you know, in terms of the kinds of, you know, self aggrandizing language. So he says, I'd saved the Voting Rights Act. I'd struck down the Guantanamo military tribunals, referring to a couple important cases where he had been the oral advocate and prevailed.

[00:05:27] [Dan] Again, that's not usually how we talk about.

[00:05:30] [Will] What did he save the Voting Rights Act from?

[00:05:32] [Dan] I think he's talking about the NAMUDNO case.

[00:05:35] [Will] Uh-huh. Okay.

[00:05:36] [Dan] Which is one where the court kinda like punted.

[00:05:42] [Will] Yeah. Oh, the court ruled in favor of the challengers on a statutory claim against the wishes of The United States.

[00:05:49] [Dan] But Yeah.

[00:05:49] [Will] But it's true that by ruling in their favor on a statutory claim, it thus did not have to rule against in their favor on a constitutional claim.

[00:05:55] [Dan] Which it then did, like Okay. A couple years later. Right?

[00:05:59] [Will] Okay. Yeah.

[00:06:00] [Dan] Right? So like it didn't really save anything and I think it was a loss, unless I'm missing something.

[00:06:08] [Will] I mean, again, you could you could call it

[00:06:10] [Dan] a win in the a win in the It's a kind of, you know, partial win. Anyways okay.

[00:06:15] [Will] A win in the dramatic sense.

[00:06:16] [Dan] This was not received well. I tweeted something just basically the gist of which was, yeesh. I can't believe he said that. And, you know, that's not really the way these things work, and the justices know what they think, and, you know, you shouldn't just take all this credit. And I will say of all the things I have done in my public life, basically none has produced as many kind of back channel DMs and text messages saying thank you for saying that from people who agreed, but we're not, you know, willing to say so publicly.

[00:06:51] [Dan] I didn't really think I was like taking some huge stand. I thought this that I was not the only one saying that, but apparently struck a chord.

[00:07:00] [Will] Yeah. It is pretty cringe.

[00:07:03] [Dan] Yeah. Yeah. It was not it was not great. And then it just the thing that really pushed me over the top was if you if you look at the tweet, he says, you know, basically Harvey helped him, you know, do the thing that only he can do. He the AI couldn't do this one thing, but it could, you know, kinda help prepare him.

[00:07:24] [Dan] He said, what AI can't do, and this is the thing that he says actually won the argument. Right? He says, this actually won the argument, which is connect. Read the room. Hear not just the justice's words, but her worry and answer the worry.

[00:07:38] [Dan] Right? He says, that is the thing. That thing that he did is the thing that won the argument. I mean, is, you know, unequivocal. And, you know, to talk about how you have this unbelievable ability to read the room and then write such an unbelievably tone deaf tweet that, you know, basically causes everyone in our world to think you're a jerk struck me as really kind of I don't know if the definition of, you know, chutzpah or hubris or something.

[00:08:05] [Dan] I don't know what phrase there. That that's what really pushed me over the edge.

[00:08:10] [Will] That's funny. I think it's funny. Do you think this will make him less effective as a Supreme Court advocate going forward, or do you think on the same principle if you think that the Supreme Court justice is mostly know what they think and thus advocates can't take too much credit for the wins, does it follow that the justice mostly know what they think and therefore doing embarrassing things doesn't actually make you, you know, hurt your chances either?

[00:08:36] [Dan] Yeah. That's an interesting question. I mean, how much do the advocates matter? And I think that in some ways, you know, they do matter. You know, maybe there's some cases where they can kind of bring stuff to the justice's attention or, you know, I do think maybe sometimes you can, you know, kind of extract a narrow win, you know, when the court is inclined to rule against you in a kind of broader way.

[00:09:01] [Dan] So maybe, I don't think

[00:09:02] [Will] that this is one of those this is one of

[00:09:04] [Dan] those cases. I do think this will annoy them if they read it or at least cause them to really roll their eyes. You know, it's if I was Neil Gorsuch, I would be like, oh my gosh. This guy is claiming that he is the reason I voted Mhmm. Against the tariffs.

[00:09:24] [Dan] Give me a break. You know, I don't know if that's gonna I don't think they're gonna necessarily, you know, be meaner to him in a real argument. Although, it is interesting how the court sometimes, like, with advocates has, you know, kinda gone a little bit outside the record to ask the advocates stuff about them. Right? There was a case earlier this term wherein justice Alito asked Adam Unikowsky about whom we've spoken in his Substack posts about, you know, would AI do a better job deciding Supreme Court cases and conducting oral arguments?

[00:09:58] [Dan] And justice Alito asked Adam, like hold on. Let me look up the act language. Justice Alito said, well, just out of curiosity, do you think we should ask Claude to decide this case? So, you know, clearly referring to his extracurricular writing. So, I mean, they're aware of it.

[00:10:20] [Dan] Right? Right. They'll be aware of it.

[00:10:23] [Will] So do you think similarly somebody will say, mister Katyal, have you asked Harvey what other questions we should ask? Or

[00:10:30] [Dan] I don't know. I mean, it

[00:10:30] [Will] sort of seem like Can you rec recommend a mindset guru?

[00:10:34] [Dan] Those questions sort of come from, like, a place of respect and like friendliness. Yes. And so I don't I don't know. You know, a friend of the show, you know, SCOTUSblog maestra, Sarah Isgur.

[00:10:49] [Will] We went with majordomo last time.

[00:10:51] [Dan] I know. I don't wanna repeat myself. You know, said basically, you know, he's you know, this is him effectively handing in his resignation as a supreme court justice, a supreme court advocate. He can't, you know, credibly go to the court ever again. And, you know, I think I think it won't stop him.

[00:11:10] [Dan] I think he's gonna keep trying. And then the question is, are clients gonna Google him and be like, oh gosh, what a what a clown? Or maybe they eat it up. Right? Maybe they love this stuff.

[00:11:19] [Dan] Maybe they watch the TED talk. I have no idea. I'm not in that business of dealing with Right. General counsels and so forth.

[00:11:28] [Will] I mean, I guess this reminds me a little bit of the old controversies about Tom Goldstein, who was sort of once upon a time seen as a norm breaking cringe Supreme Court advocate. And then he was now, you know, his sins were doing things like calling people and offering to take their case.

[00:11:45] [Dan] Yeah.

[00:11:46] [Will] And, you know, maintaining SCOTUS blog and a certain amount of advertising and self promotion and so on. Again, that was quite different. Yeah. But, you know

[00:11:56] [Dan] Tom always had a bit of, you know, kind of intense self aggrandizing and also modesty. Like, he kind of, I feel like, towed that line in a way that was effective.

[00:12:06] [Will] Yeah. Maybe less so here.

[00:12:09] [Dan] I think I think less so here. I think that this is an advocate who, you know, has kind of I think, you know, people already have the impression that this is somebody who is just dead set on, you know, aggrandizing himself and making himself as famous as possible and constantly praising himself. And I don't think this certainly doesn't help in that regard.

[00:12:29] [Will] One last thought on this. Don't know if you are familiar with one of Tyler Cowen's refrains is that those of us of letters should be doing more to write for the AIs and to make sure that sort of as the AI language models sort of soak stuff up, they soak up our views in various ways. And so you gotta write with the minds to The

[00:12:48] [Dan] more the more junk that's out there, the more that they're just trained on junk, and then they produce junk.

[00:12:52] [Will] Right. There might be thing things you have to say explicitly in writing to make sure they absorb it that humans already know. Yeah. Yeah. Yeah.

[00:12:59] [Will] Question, is it possible that is it possible that Katyal is kinda doing this for the AI? Is it possible that in twenty years, when AI does all the oral arguments Uh-huh. They will have sort of all absorbed and trained on him because he was, sort of an early adopter and one of the first people to sort of, like, put himself in this role, and who knows, you know, what he's doing with Harvey. And this is all actually a master play to ensure that in the future, all oral arguments are by Neal Katyal on all sides. I hadn't thought of that.

[00:13:25] [Will] That is multidimensional chess. Maybe.

[00:13:30] [Dan] We'll see. Are you playing that game in some way? Are you are you making choices designed to influence the AI? Should I be doing that? I'm not really doing that.

[00:13:37] [Dan] I'm just kind of doing this the stuff that I've been doing all along.

[00:13:41] [Will] Yeah. Maybe I should be doing or for worse. Right. Hopefully, when the AI starts, you know, producing all these podcasts, they're trained on ours.

[00:13:49] [Dan] Yeah. And we do have transcripts. Right? We get our transcripts

[00:13:52] [Will] Sure.

[00:13:52] [Dan] Up. And so maybe that helps. I mean, you know, in some sense, writing scholarship is just the precursor to that. Right? It's an it's an attempt to get out there into the world the right views and influence people.

[00:14:05] [Dan] And to the extent the scholarship is successful and influences people, that will cause those views to be out there repeated and train the AI.

[00:14:16] [Will] Yeah. Right. I guess I think of myself as writing for everybody, and the AIs are welcome to be among everybody.

[00:14:21] [Dan] Okay. I don't know whether everybody likes what you write, but certainly a lot of people do. But it's good that you're at least at least trying. And I think that I don't like it when I see, you know, judges and scholars and public commentators not even making a pretense of writing for everybody. Right?

[00:14:38] [Dan] Just writing to for true believers. I don't like that.

[00:14:42] [Will] Mhmm.

[00:14:43] [Dan] I think that contributes to our increasingly polarized world, political culture, and legal culture.

[00:14:52] [Will] That's bad. Okay. What else has happened?

[00:14:56] [Dan] Any other newsy stuff? So there's continued, you know, developments slash fallout in Alabama.

[00:15:05] [Will] Yes. So in our last episode, the live show, we talked about the Supreme Court's GVR of the Alabama redistricting plan in light of Callais.

[00:15:15] [Dan] Or just VR? Because it was a appellate jurisdiction, or was it a GVR?

[00:15:20] [Will] I good question.

[00:15:21] [Dan] Okay. I think it was an appellate,

[00:15:23] [Will] and Okay.

[00:15:23] [Dan] Was a VR.

[00:15:24] [Will] It was a VR. And we talked about, you know, could they impose the same holding again on remand, and would that violate the Purcell principle? The three judge panel quickly imposed the same holding on remand, concluding that even putting aside the Voting Rights Act, there had been

[00:15:40] [Dan] It just seemed like it was going to. Right? If the if the lower court says we we're doing something for two reasons, and the court says some stuff that maybe calls into question reason one, it goes back down, the lower court should be like, okay, and we had this other reason.

[00:15:53] [Will] Yes. Sometimes your reasons are entangled, and I think there might have been some dispute about how entangled they were. Yeah. And sometimes lower courts read the room. And so even if they had an alternate reason Yeah.

[00:16:05] [Will] If they feel like there's some signal they're not supposed to have that alternate reason anymore, sometimes they back down. But the lower courts said they carefully set the record that among other things, they said, you know, Alabama really didn't claim this was partisan gerrymandering, so it's not the Callais situation. And, you know, so they reimposed the same thing. And they also said that they should impose relief despite the Purcell principle because the Purcell principle is ultimately about avoiding confusion. And in fact, the thing that would avoid confusion less is to impose relief, which maintains the status quo rather than to allow the last minute upending of the election.

[00:16:42] [Will] The state of Alabama has already filed for a stay in the Supreme Court, and that stay has been presented to justice Thomas, who did not grant an administrative stay and who requested a response by 4PM, June 1. That is later than the state of Alabama wanted. The state of Alabama asked that the court issue relief by 10AM, June 1, or as soon as possible thereafter. So some people read that as a good sign for the plaintiffs that the court isn't just, you know, racing this through to give Alabama what it wants as fast as possible, but I'm not sure about that.

[00:17:22] [Dan] Okay. So it seems like it's still up in the air about, you know, what's what map is gonna be used. Right? And potentially

[00:17:32] [Will] Yes. You know,

[00:17:33] [Dan] the Alamo will not get to do what it want.

[00:17:35] [Will] And up in the air about when we'll find out. So if, you know, the longer it takes for the Supreme Court to possibly issuing a ruling reversing the lower court saying that the lower court shouldn't have done something because of last minute confusion, the more we will have the irony of multiple rounds of last minute switches all based on a principle about avoiding last minute switches.

[00:17:56] [Dan] Okay. What else? We got email from a new friend of the show, Ethan Lowens. You had briefly mentioned when we were talking about the mifepristone stuff, like Mhmm. You know, what's gonna happen, you know, will be cases where specifically, we talked about the situation where, you know, Southern states wanna prosecute judges and sorry, doctors in blue states for prescribing mifepristone across state lines, and blue states aren't gonna extradite them.

[00:18:24] [Dan] And so Ethan wrote in to tell us about he has an article about all about that called interstate extradition. So if you're interested in that topic, there's an article about it.

[00:18:34] [Will] Yeah. Great topic.

[00:18:35] [Dan] Yeah. Well, I mean, unfortunate topic and be better to live in a world where, you know, we didn't see these kind of fundamental conflicts between states, you know, kind of this mix brings us back to the pre civil war period. Right?

[00:18:53] [Will] Yes. No. It's a great topic and it would be great if people were less interested in it.

[00:18:57] [Dan] Yeah.

[00:19:00] [Dan] Stuff the court actually did?

[00:19:02] [Will] Yeah. Alright.

[00:19:03] [Dan] No more no more gossip?

[00:19:04] [Will] Well, the court's been busy.

[00:19:07] [Dan] It has and we're not you know, we didn't record last week. You know, I'm trying to get other stuff off my plate. So we we're not gonna be able to catch up on everything, but we do have some things. So, you know, one, you know, as we like to transition from the kind of shadow docket into the merits docket, why don't we talk about a shadow docket per curium, a summary reversal? Yes.

[00:19:34] [Dan] In this case, Margolin versus National Association of Immigration Judges. Mhmm. In this case, it's going to set up a new potentially new trend. Can two data points make a trend?

[00:19:47] [Will] No. You need three.

[00:19:49] [Dan] Three? Okay. Can it be, like, trending towards a trend?

[00:19:52] [Will] Yes, sir. It could be a pretrend.

[00:19:54] [Dan] Pre okay. Pretrend, which is reversals of the fourth circuit for not following the party presentation principle. Mhmm. This is cases where the Fourth Circuit decides a case, like, on a ground not presented by the parties, then sort of just says, hey, there's this other thing that bothers us, so we're gonna decide the case on that basis. The Fourth Circuit tried to do that last year and in a habeas case where they, you know, the habeas petitioner had made certain specific arguments about his conviction and the Fourth Circuit was like, well, you know, maybe there's a different thing, which is just we kind of look at everything and it kind of makes us uncomfortable and we're gonna there was just a lot of failures here and so we're gonna grant relief on that ground.

[00:20:42] [Dan] Of course, you can't do that. That wasn't what people argued for.

[00:20:46] [Will] And now they've done it again. So the I wanna talk about this party presentation thing, but just to frame it. So the case the question is a sort of administrative exhaustion question. The National Association of Immigration Judges are challenging a new policy that regulates their speech, their work related speech. And the question is whether they have to go through the Merit Systems Protection Board under the Civil Service Reform Act and the Fourth Circuit.

[00:21:11] [Will] The Fourth Circuit's unpresented argument was basically since president Trump has effectively destroyed the Merit Systems Protection Board, there's no point in going to it anymore. And the court said that argument was not written below.

[00:21:24] [Dan] The argument, as I understand it, kind of links up with congressional intent. It's basically like, well, if Congress knew what was going on, they certainly wouldn't want you to have to go to the MSPB. Yeah. But it's like sort of weird because it's like Congress didn't know that, and so we kind of were stuck with the statute they wrote.

[00:21:42] [Will] Well, yeah, though. It's I mean, there are many different versions of it. Like, you could did almost a quasi severability argument. Right?

[00:21:47] [Dan] Yeah. It has that same feel, which is

[00:21:50] [Will] Since part of the change has been the invocation of the unitary executive to exert more control and diminish the independent independence of the MSPB. So you could say as a severability matter, had Congress known that the unitary executive principles were going to trump the independence, they wouldn't have wanted it. That's at least a kind of argument. You could do it. Exhaustion sometimes has a kind of more like a futility exception.

[00:22:11] [Will] We just don't make you exhaust things where we think it's pointless. I don't quite know which of these variations or whether it's something else they're making. So here's a here's an interesting difference between the two cases, though, is in the preview previous Fourth Circuit party presentation principle case, the court said, the Fourth Circuit, you did a bad job because you considered an issue that was not presented by the parties, and you were wrong. Like, you came up with this rationale and it was bad. Yeah.

[00:22:38] [Will] Right? Here, they say, oh, Fourth Circuit, you did a bad job because you came up with an argument that was presented not presented by the parties. And the court doesn't tell us that it was bad. The court doesn't say, on the merits, we disagree. There's a concurring opinion by justice Thomas and justice Barrett saying, you know, we think this argument is wrong on the merits, but the majority doesn't.

[00:22:58] [Will] And given that contrast, I think it's actually kind of telling. I take it that means that they're not sure it's wrong.

[00:23:05] [Dan] Yeah. I mean, my strong suspicion is that a majority is sure that it's wrong, but maybe they just didn't want to get into it and create conflict, and it's just simpler to do it this way.

[00:23:14] [Will] Or they don't like it, but they're not sure whether they think it's you know? So Yeah. He this is a my general question about the party presentation principle is, do we think when a when you learn that a court of appeals came up with an issue not came up with an argument not presented by the parties, and that's all you know so far, is your prior that argument will be bad or good? Because one version is, you know, wow. The court went especially a field that they have something so crazy, the parties didn't even think to argue A different version is actually the parties didn't front the case very well, but the court came up with a much cleverer thing the parties came up with.

[00:23:49] [Will] And it seems like, you know, both of those happen, and they're very different things.

[00:23:54] [Dan] Yeah. I mean, it kind of depends on your priors about, like, who's on the panel. Sure. I mean, there are certain judges. I'd be like, okay.

[00:24:01] [Dan] If they thought of it, it must be a good argument. And there are certain ones where you kind of look at this and you're like, gosh, this seems real outcome oriented. And the judge couldn't find a way to rule in this way they wanted, so they came up with another argument.

[00:24:13] [Will] To be clear, it could be outcome oriented and a good argument. Right? So one of the objections might be that the judge is not supposed to, you know, is supposed to be an umpire and not a player on the team. And so the judge is not supposed to ask themselves, well, okay. The parties didn't find a way to win, but can I find a way to win for them?

[00:24:28] [Will] But it, you know, it is relevant to the how you think about the nature of the sum ref. Right? Because one kind of sum ref could be, again, like, you know, that was a you came up with an argument that wasn't presented with parties, and look, it was totally wrong. And this version I don't know. This version, if you're the Fourth Circuit, you might think, you know, or if you're all another lawyer, you might think, boy, we should we should make that argument next time.

[00:24:49] [Dan] Yeah. Also, I mean, I would think that a different plaintiff should now bring a new suit on the same ground, but make the, you know, whatever this whatever you call this argument, the kind of like overall problematicness argument.

[00:25:05] [Will] Yeah. If somebody does in the Fourth Circuit, can they claim the presidential effect of the Fourth Circuit opinion? So the Fourth Circuit the end of the case is that the judgment of the Fourth Circuit is reversed and the cases are remanded for further proceedings because of this opinion. I don't think the Fourth Circuit opinion is vacated. It's presumably reversed on other grounds in a sense.

[00:25:25] [Will] So is the Fourth Circuit opinion now binding precedent?

[00:25:30] [Dan] I guess that would be a matter of internal Fourth Circuit Law? Law. Right? This is something you're thinking about.

[00:25:38] [Will] Yeah. I mean, it'd be funny to say you shouldn't have reached the parties didn't make that argument, so you shouldn't have reached it in this case. But in future cases where the parties make it, you now shouldn't reach it because you've already reached it. But I mean

[00:25:50] [Dan] I mean, sometimes, you know, you rely if you're writing a brief in the court of appeals, you rely on a case and you say, you know, reversed on other grounds or you know, more often I see, like, kind of abrogated on other grounds by a later case.

[00:26:02] [Will] Yeah. Right.

[00:26:03] [Dan] I think if a decision is reversed, you know, that big red flag should mean Yeah. You can't rely on it.

[00:26:10] [Will] Now, again, it could be persuasive authority in that Yeah. This case was decided already in the first Fourth Circuit. It survived a petition for a hearing on Banque in the Fourth Circuit over only three objections. So, yeah, I would think the next people to make it in the Fourth Circuit are gonna think their chances are pretty good. Now they know in the Supreme Court, they've already lost justice Thomas and justice Barrett.

[00:26:32] [Will] But

[00:26:33] [Dan] Yeah. That's seven left.

[00:26:36] [Will] So one other interesting thing about this case that I really like is this is a summer reversal that was not resolved on the emergency docket. I think this is the same case where there was a petition for emergency relief by the government maybe in December, which the court denied on the grounds that the government had not suffered a verbal injury, if I remember this correctly. I think the case that case was also called Margolin, and I'm thinking it's the same Margolin. Maybe I'm wrong with that. But in any case, now here it is sort of a little slower, not on the emergency interim docket, and it gets a sum rev on a kind of relatively modest ground that doesn't require the court to resolve this actually very interesting question of severability intent agency destruction.

[00:27:26] [Dan] Yeah. And in a way that seems to be less controversial. Right? Yeah. Yeah.

[00:27:30] [Dan] Since there is no noted dissent

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

[00:27:33] [Dan] On this.

[00:27:33] [Will] I like I like it.

[00:27:35] [Dan] Okay. And this doesn't seem like one that would have needed to be briefed and argued at the merits level. I mean, it seems like it's pretty easy to just say you're not supposed to decide issues that weren't, you know, argued for by the party.

[00:27:49] [Will] Right. Although is that a kind of a rule or is that just

[00:27:53] [Dan] think it's principle? A Yeah. It's a, you know, prudential standard. But I think there have to be some situations where

[00:28:01] [Will] Right.

[00:28:02] [Dan] That but that can't be the rule.

[00:28:04] [Will] Right. And I look, that's not a rule the court follows all the time.

[00:28:07] [Dan] Certainly not.

[00:28:08] [Will] So it seems more like if you decide to resolve a case on the ground, not presented by the parties, you're kinda as a lower court, you've kind of you've given the Supreme Court a free pass to reverse you if they want

[00:28:19] [Dan] to. Yeah.

[00:28:20] [Will] They now can decide if they if they don't like your reasoning to just say, oh, you shouldn't have done that. Of course, if they if you came up with something good that they liked, presumably, they would they would say, okay. Fine.

[00:28:31] [Dan] Okay. So I think we're being efficient, and we've got some merits cases. We didn't originally plan on this one, but would you would you bear with me for a Pitchford versus Cain for a minute?

[00:28:43] [Will] Sure. So just to say, since we last recorded, we've had seven merits cases from the Supreme Court. There were three last week on May 21, and then four today on May 28 as we're recording. So I don't think we're gonna talk about them all or even name them all, but there are a lot of them, and we should talk about some of them.

[00:29:02] [Dan] Yep. Okay. Okay. So this one, I think we can talk about pretty briefly. This is a Batson case about discrimination in racial discrimination in jury selection.

[00:29:15] [Will] Okay.

[00:29:15] [Dan] And it is a case where the, you know, defendant, the petitioner had tried to raise a Batson argument in the trial court. Batson is a there's a kind of three step process where basically the defendant is supposed to say, hey. You know, you're striking all the black jurors and you know? Or, you know, look at you strike these multiple black jurors. You know?

[00:29:41] [Dan] What's up with that? And then the prosecutor is supposed to come forward and be like, oh, no. No. We're doing it because, you know, some reason doesn't have to be a good reason. It has to be some reason that isn't race.

[00:29:51] [Dan] Right? Because, you know, the prosecutor is allowed to strike peremptorially strike prospective jurors for any reason other than they prohibited reasons of race, gender, religion.

[00:30:04] [Will] Right. They can include just like, I didn't

[00:30:06] [Dan] like Religion. Religion is actually not that's not resolved. Right.

[00:30:09] [Will] Sexual orientation, I think there's a split on too.

[00:30:11] [Dan] Yeah. That's not resolved. It's certainly not resolved at the Supreme Court level.

[00:30:14] [Dan] Right.

[00:30:15] [Will] But the reasons can include things like, you know, I didn't like the way he looked at me.

[00:30:19] [Dan] Yeah. He was mumbling.

[00:30:21] [Will] Right. So we thought the reason is allowed to be, we think he will vote against us, and we don't like that. Right? That's like that's the kind of thing they're allowed to think about.

[00:30:27] [Dan] But it can't be we think he will vote against us because he's black.

[00:30:31] [Will] Right. Yes. Okay.

[00:30:32] [Dan] And so then after that second step, the defendant, you know, then the court is supposed to like make a factual finding. Right? Be like, okay, we've you made a defendant. You raised an inference prosecution. You gave me some reasons.

[00:30:51] [Dan] Let me let me kind of hear this out and decide who's right. Mhmm. In this case, the lower court, the trial court in this state criminal case skipped that step and was just kinda like, okay. We're good. You know, we're done.

[00:31:07] [Dan] Got they got race neutral reasons. And this case, you know, has wound its way through the Mississippi court system, through the federal court system, all the way to the Supreme Court. And ultimately here, the court in a five to four decision is going to say this was a violation of Batson. Right? And it is a procedural violation.

[00:31:31] [Dan] Right? It doesn't conclusively say that there was race discrimination. Basically just says the trial court screwed this up by not, you know, putting the defendant in a position where he could make the right arguments and, you know, get a complete finding on that issue.

[00:31:50] [Will] Although, what is missing there? So the trial court had just said, I find the prosecution's race neutral reason to be credible. That'll be enough. Right?

[00:32:00] [Dan] Yeah. I think specifically what the court thinks is missing is that the defendant should have had an opportunity to make certain arguments. Uh-huh. Right? To establish and to establish the facial the factual predicates for certain arguments that could have, you know, been relevant to showing that this was a pretextual reason.

[00:32:24] [Dan] Right? Because that's the at that point, the defendant is trying to convince the trial court that the prosecution's reasons Right. Are presect pretextual. And one way you do that is say, look, you know, that you gave me these reasons that are race neutral, but look, those things were true of these other prospective white jurors who you didn't strike. Right?

[00:32:44] [Dan] And then that kind of bears on the

[00:32:48] [Will] Right. You said you structure number four because he was a young unmarried father. But look, you didn't strike jury at number six, also a young unmarried father who's white. And they didn't even give the defendant a chance to make those arguments. Is that the problem?

[00:33:01] [Dan] Yeah. Basically. Yeah. Okay. So just a few just a few interesting things about this.

[00:33:07] [Dan] So one is this gets to the court in a posture where it's arising under the limitations of the federal habeas statute, which is designed to make it, like, really hard to challenge a state criminal conviction. And it got there in a posture where the state courts had said, you know, actually, we don't have you don't have to decide this because you forfeited the specific Batson argument you're making now. Right? And the court here breezes through that and is like, not only does this guy win, he wins under the standards under the Anti Terrorism and Effective Death Penalty Act, which EDPA, which is designed to make it really hard, and that's very rare. That's very rare for the court to rule for a pay based petitioner in that context where, you know, EDPA is standing in the way.

[00:34:01] [Will] Yes. Because you know both you

[00:34:03] [Dan] need to, you know, say that the state court was wrong on the decision to say this was forfeited. You need to say that the state courts were wrong on the law and not just wrong, but like really, really wrong. So that's kind of striking. Another interesting fact and that I it's gotta be playing a role in the background here is that the district attorney is this guy, Doug Evans, who the court has already seen in a case called Flowers versus Mississippi.

[00:34:32] [Will] Oh, it's the same guy?

[00:34:34] [Dan] Yeah. Yeah. It's the same. And that guy that was the case where Evans had prosecuted the same defendant, like, six times for the same murder Uh-huh. And, you know, failed for various reasons in the first five times and got to the sixth time.

[00:34:49] [Dan] And the there was this, you know, pretty thorough record, you know, of you know, alleged bats and violations over the course of these, like, six prosecutions, and the court was basically like, okay. Yeah. There's enough here. You can rely on that, and we think you've established a Batson violation. So same district attorney in this case.

[00:35:08] [Dan] And so I think that's part of the problem here, right, which is that the court is kinda looking at this and coming at it with a place of skepticism. But, you know, nonetheless, it's still controversial. Right? Because this is, as I said, this is a five four. It's an opinion by justice Kavanaugh joined by the chief and justices Sotomayor, Kagan, and Jackson, and then you've got Gorsuch dissent joined by justices Thomas Alito and Barrett.

[00:35:33] [Dan] Mhmm. That brings me to my other tidbit, which is, you know, there's a Kavanaugh opinion. And Kavanaugh wrote his Yale Law Journal student note on basically this exact issue. Had you had you seen this before? I sent this to you.

[00:35:50] [Dan] But was this new to you, or did Ted, you already seen this?

[00:35:53] [Will] I had forgotten it, but when you sent it to me, rang a bell.

[00:35:56] [Dan] Okay. So he wrote a student note when he was on the Yale Law Journal, your institution, called Defense Presence and Participation, a Procedural Minimum for Batson versus Kentucky hearings.

[00:36:11] [Will] Uh-huh.

[00:36:12] [Dan] And what that student note is about is about how basically how step three of Batson should go. Right? And he specifically he says, this is where the note student note kind of sums up to their its argument. It says, this note argues first that the defense must be present to hear the prosecutor articulate his neutral explanation, and second, that the defense should have an opportunity to rebut the prosecutor's reasons before the trial judge decides whether to allow the prosecutor's peremptories. Uh-huh.

[00:36:44] [Dan] Right? That is exactly what didn't happen here. Right? Yeah. Because the defendant didn't have that opportunity.

[00:36:51] [Dan] So Now

[00:36:52] [Will] one question about this. You've read this note more carefully than I have. But as I read Did the note

[00:36:57] [Dan] not carefully at all?

[00:36:59] [Will] The note says that this that this procedure it's proposing is not clearly required by Batson itself. That Batson

[00:37:06] [Dan] Mhmm. Yeah. And it acknowledges the split. Right? Acknowledges the circuit split on this question.

[00:37:11] [Will] Right. And says that Batson left the formulation of procedures to lower courts. So how could it be an EDPA violation? Like, isn't that the under EDPA, all that matters is a clearly unreasonable application of Supreme Court precedent.

[00:37:29] [Dan] Well, you know, different ways you could approach that. I mean, one is I don't know if there's some argument you can make that, and I, you know, didn't dig in deep enough into the briefing, where post bats and cases have made sufficiently clear that this is the way the procedure should go. Mhmm. That would

[00:37:47] [Will] be Batson Supreme Court cases.

[00:37:49] [Dan] Yeah. They would need to be Supreme Court cases.

[00:37:51] [Will] Yeah. That could be

[00:37:52] [Dan] And if you look at the this opinion, the new opinion, it says, we agree with the US District Court that the Mississippi Supreme Court unreasonably applied the clearly established Batson precedents.

[00:38:06] [Will] Mhmm. Okay.

[00:38:07] [Dan] Which ones? Yeah. No. It doesn't say which ones.

[00:38:09] [Will] Right. Miller-El is one of them. Yeah. Okay. I do think there is this sort of this waiver thing does have a perverseness to it.

[00:38:19] [Will] Like, if you know, if the if the trial court sort of, like, summarily moves on before hearing your arguments, and then you complain about it, And this happens, you know, later they complain, and the court's like, I've already heard that argument. I don't wanna hear anymore.

[00:38:31] [Dan] What happened here? Right? Right. Exactly. They tried again later, and he was like, oh, that's the trial court was like, that's already you've made your point on the record.

[00:38:38] [Dan] Let's move on.

[00:38:39] [Will] Then you really can't be held to have waived it later when somebody says, well, actually, you didn't I mean, it might even be true that you've never actually made your point in the record. But once the district court refuses to let you make your point on the record on the false ground that you've already made your point on the record, I feel like you've done what you're supposed to do.

[00:38:56] [Dan] Yeah. Okay. So that's interesting.

[00:38:58] [Will] That's very interesting.

[00:38:59] [Dan] Yeah. So I think this guy gets a new trial. Mhmm.

[00:39:06] [Will] How long ago did this Batson violation occur?

[00:39:09] [Dan] A long time ago. More than twenty years ago. Right? Defendant has been, you know, pushing these arguments for more than two decades. Uh-huh.

[00:39:19] [Dan] The crime occurred in 2004.

[00:39:22] [Will] Uh-huh. And had the had the court, you know, taken a beat and let the defense make these arguments and then said, okay. Well, I find it not protectual, then that would be entitled to deference.

[00:39:32] [Dan] Then I think I think he's I think it's done. Right? I think I think that there's no basis for federal ABS relief unless you can find something else. Unless that factual finding was, like, absurd. Right?

[00:39:42] [Dan] Right.

[00:39:43] [Will] Right. But odds are I mean, the kind of deference the courts get on these things, you know, odds are they could find something even if it was wrong. So in a sense, we now have to redo a twenty year old murder trial because the trial judge sort of couldn't spare four minutes to do this in a little bit more of a regular fashion.

[00:40:04] [Dan] Yeah. That is Yeah. A bit unfortunate.

[00:40:06] [Will] Yeah. Well

[00:40:07] [Dan] Okay. So moving on.

[00:40:12] [Will] Okay.

[00:40:13] [Dan] Thanks for doing that one to me. I know that wasn't even on your agenda for today.

[00:40:20] [Will] We keep it loose here, Dan.

[00:40:22] [Dan] We try to. So I guess we've got one to discuss that's sort of related to another one that I think neither of us have read super carefully. The other one, I think we've read one carefully and one loosely. Is that is that fair? Or did you did you get through both of these carefully?

[00:40:37] [Will] Dan, I'm always loose.

[00:40:40] [Dan] That's not correct. Okay. So the two cases are Fernandez versus United States, which is the one that I've read more carefully, and Rutherford versus United States.

[00:40:53] [Will] Yes. And both of these opinions are by justice Barrett. Both of them are more or less six three, although we'll talk about that. Yeah. And both of them are about

[00:41:02] [Dan] Section thirty five eighty two c one a I. Both

[00:41:08] [Will] of these are about 18 USC thirty five eighty two c one a, Roman at one, which allow district courts to grant so called compassionate release of federal prisoners if they find an extraordinary and compelling reasons that warrant such a reduction. And both cases rule against the prisoners who are seeking compassionate release and sort of constrain what counts as compassionate release.

[00:41:32] [Dan] Yeah. And so Rutherford, I think we can just tell you what that is about. They're the, you know, petitioner, the person who wanted to rely on this and get relief, two of them in the case kind of linked cases came in and said, look, congress has amended the law so that other people would not get sentences as severe as ours. Mhmm. Right?

[00:42:03] [Dan] They changed it. Now they didn't make that change retroactive in a way that would benefit Rutherford and this other guy, Carter. Right. And nonetheless, they wanna say, but look, you know, this is a big deal. They didn't give us the benefit, but that's a really good reason, right, for us to get reduction in arsonances.

[00:42:20] [Dan] Right? Yep. And the court says, no. That doesn't count.

[00:42:26] [Will] Right. And the court says, that is such a bad reason that even though the sentencing commission actually agrees with you Yeah. The sentencing commission has issued a statement saying, this is a consideration in granting compassionate release. We disagree.

[00:42:39] [Dan] And basically, I think the idea is like, look, Congress made a choice not to make this make this retroactive. And so putting viewing this in larger context, you know, Congress doesn't, you know, really intend the statute to be used in this way to kind of like override that policy choice that Congress made.

[00:42:57] [Will] Yeah. Oh, I mean, this is gonna overlap with the other case as well. That is the theory. Although, we also do have a statute about extraordinary compelling release. Yep.

[00:43:06] [Will] So the other, I guess, maybe piece of setup for this so the compassionate release has been in the statute for a long time as I understand it. But until 2018, it was basically irrelevant because you could only get compassionate release if the Bureau of Prisons asked for it, and the Bureau of Prisons didn't really ask for it, except in for unusual circumstances. And then as part of, the First Step Act, one of president Trump's most famous and beloved pieces of actual legislation, Congress opened it up and said, actually, the individual, prisoner can file for compassionate release. They have to ask BIP first, but if BIP doesn't file for them, they can go they can go ask for it themselves.

[00:43:46] [Dan] And Kim Kardashian played a role in that.

[00:43:48] [Will] And Shon Hopwood.

[00:43:49] [Dan] Right? Yeah. The passage of the First Step Act. So Yeah. Thanks, Kim.

[00:43:55] [Dan] Kim K.

[00:43:56] [Will] And so suddenly, there are a lot of these requests for compassionate relief release, and distributors had to actually figure out what to do with them. And then one you know, for a while, so the sentencing commission, I think, did not have a quorum, and so the sentencing commission didn't have any guidelines about this. So the sentencing commission's policy statement about this was dated from the era, and only the Bureau of Prisons could ask for it. So it didn't really think about the this much broader question of what to do. Yeah.

[00:44:21] [Will] So now that then the Sentencing Commission eventually steps in, issues a policy statement on this, and now the Supreme Court doesn't like part of their policy statement. The other legal question, which maybe we will talk about, is, so what if your argument is not that kind of retroactivity argument? What if your argument for compelling and extraordinary for extraordinary and compelling reasons is you might be innocent? Yep. Is that something to think about?

[00:44:49] [Dan] And so that is Fernandez. Yeah. And it's interesting because Fernandez comes in and he wants to make an argument like that. Now he doesn't have, like, compelling evidence that he is innocent. Right?

[00:45:08] [Will] Well, it's compelling to who?

[00:45:10] [Dan] I mean Well, he doesn't have enough evidence that court is gonna look at it and be like, yes. You've made it you know, you've shown me you've persuaded me. It's more likely than not that you're innocent.

[00:45:23] [Will] Right.

[00:45:24] [Dan] He has some kind of facts that feel fishy.

[00:45:30] [Will] Yeah. Well and enough. I mean, he does convince a judge. He does convince the district judge.

[00:45:35] [Dan] But he doesn't convince the district judge that he's innocent.

[00:45:37] [Will] But he convinces the district judge that there are extraordinary and compelling reasons to release him. Yes. Namely that he might be innocent.

[00:45:43] [Dan] Yeah. That the district court has, like, you know, seems very uneasy. Now he's going to the district court. This is the district court that sentenced him originally. Yeah.

[00:45:52] [Dan] Right? And presided, over the case. Yeah. And it seems like this judge has had some real reservations about this case for a while. Yes.

[00:46:04] [Dan] Right? This case had the defendant had come back to the judge through a different procedural avenue, 28 USC section two twenty two fifty five, and the judge had kind of like said some stuff that suggested some reservations

[00:46:20] [Will] Mhmm.

[00:46:20] [Dan] And actually kind of suggested, oh, maybe you should go through this other route. Yeah. And here, you know, the judge says, okay, you know, you've shown me enough stuff that makes me, you know, think there's a there's some chance that this other guy, Darge, I don't know how you say it, committed may might have committed the crime and one of the key witnesses was kinda lying to you know, cover that up.

[00:46:50] [Will] Yeah. Yeah. So I think the we could say is, know, while Fernandez did not prove beyond a reasonable doubt or even beyond upon us the evidence that he is innocent, he established a certain disquiet about the, you know, truthfulness of the testimony against him. That's what the judge found. Yeah.

[00:47:10] [Will] Okay. Well, that sounds naively, you might think that actually is kind of what's that?

[00:47:15] [Dan] Specifically, you know, he was trying to say that there were two issues, that there were problems with this co conspirator Rivera in his testimony and maybe he was lying. And then also questions about testimony by this guy, Darge, who was maybe lying to protect his brother who might have been the actual killer. Mhmm. So two separate things and they both, like, neither of them kind of get him over the top. Right?

[00:47:39] [Dan] Neither of them are persuasive as kind of freestanding legal claims.

[00:47:44] [Will] Right. Okay. But they were persuasive to the judge who decided to that he should get a sentence reduction. Yep. And they were not persuasive to the second circuit and to the Supreme Court who say, even if it's true that you might be innocent, that's not a basis for compassionate relief.

[00:48:06] [Will] Compassionate release. That's something you're supposed to go through the habeas or quasi habeas process for.

[00:48:12] [Dan] Yeah. So there's this procedure section twenty two fifty five I mentioned a few minutes ago, which is like the equivalent of, you know, federal habeas for state prisoners. It's federal habeas for federal prisoners. Right? Right.

[00:48:27] [Dan] Basically go back to a court that where you were convicted and say, hey, there's some new thing that calls into question my conviction. Right. Do that after you've gone through the whole appellate process.

[00:48:37] [Will] Right. Okay. And so then so inform, this is a kind of like wrong cause of action case. Right? This is a you have a claim.

[00:48:46] [Will] You have a claim that you that there's doubt about your conviction. You're supposed to bring that not as a $35.82 claim, but as a $22.55 claim. Go try that. Now I take it he did he already did try that as a twenty two fifty five claim. And I think, as we've talked about, there's no reason to believe it would succeed as a twenty two fifty five claim because he doesn't have enough Yeah.

[00:49:05] [Will] Evidence to really prove.

[00:49:07] [Dan] Yeah. I don't think he has enough new stuff to, you know, get over the limitations on, you know, how many claims you can bring and when you have to bring the claims.

[00:49:17] [Will] Right.

[00:49:17] [Dan] Right. Like, if you if you discover some smoking gun that's like a video where the key witness says I was lying about everything and the police knew it, you know, then usually there's gonna be a way to get that in. Right. This is not over that line.

[00:49:31] [Will] And by the way, is it even clear if you discover new evidence that the Cubanist was lying, but the police didn't know it? It's like you discover evidence that you're innocent, but the government didn't necessarily do anything purposefully untoward. Is it even clear you could bring that in 2255?

[00:49:47] [Dan] Well, I wanna go back and look at the language, and so let me give you the language. And, you know, at least if you want to bring a what we call a second or successive motion, it has to be certified by a panel of the appropriate court of appeals to contain either newly discovered evidence that if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movement guilty of the offense. So I think that would get you over the line of making a new claim. I don't think that would be the basis though. I don't think it would be the basis of a substantive claim.

[00:50:28] [Will] Right. What would your substantive claim be?

[00:50:31] [Dan] So first, you need two things. Right? You need a way to get over the procedural hurdles. But then once having cleared the procedural hurdles, then you need to have a viable legal claim. Right?

[00:50:40] [Dan] So then in the hypo you just gave us, which is the police don't know about this lie, right, there's not what we call a Brady violation there. Right? A Brady violation is when the government suppresses, you know, evidence that would have been favorable that could have made a difference. So there's no Brady violation. You can't point to that kind of procedural constitutional violation.

[00:51:04] [Dan] So what do you got? You could try to make an actual innocence claim, which is just this free standing legal claim that like I can't be punished because I'm innocent. Right? Something not attached to some procedural violation. You could try that.

[00:51:19] [Dan] The court has never told us you can do that.

[00:51:21] [Will] Is there some clause in the constitution that says you can't be punished if you're innocent?

[00:51:24] [Dan] You know, I think if you were gonna do it, you'd wanna find it somewhere either in due process, kinda like substantive due process, or maybe a amendment, accrual and unusual punishment.

[00:51:36] [Will] Yeah. Okay. So maybe the court has repeatedly said

[00:51:40] [Dan] You're very skeptical of these claims.

[00:51:44] [Will] I am. I I'm not sure You've

[00:51:46] [Dan] written about that?

[00:51:47] [Will] Yeah. No.

[00:51:48] [Dan] I will. It's in quarterly. I have signed that article to my Chrome Pro students.

[00:51:53] [Will] I'm sure they don't like it.

[00:51:55] [Dan] I don't get any pushback on it. But it's early in the semester, so maybe they're not geared up to give me pushback.

[00:52:02] [Will] Okay. So anyway, in this case, the point is saying you should bring this claim as a $22.55 claim is to say you can't bring this claim. You specifically, because this claim fails. Now the other question is why should you have to bring it as a $22.55 claim? Like, why can't you just say, well, sure, twenty two fifty five exists, but I have, you know, an extraordinary and compelling situation, namely a lot of doubt about my guilt.

[00:52:29] [Dan] So as I understand the rule here, the court is just saying categorically, the supposed invalidity of a conviction is not among the extraordinary and compelling reasons that justify compassionate release. This is on page nine of the opinion. So that whatever extraordinary and compelling reasons means, it doesn't extend to, hey, there's something wrong with my conviction. I shouldn't have been convicted.

[00:52:54] [Will] Right. But in so in the Rutherford case, sort of it's easy to say the fact that a statute was enacted that's not retroactive is not extraordinary and compelling, because actually, that's the norm. Statutes are regularly not retroactive, and so you didn't get the benefit of this change, but that's the way it normally works. So it's not extraordinary and compelling. The fact that you convince the judge who sent you to prison that maybe you shouldn't be in prison because they're actually not sure they're right, that is not a thing that happens that often, just, like Yeah.

[00:53:23] [Will] Descriptively. So it is kind of extraordinary in the descriptive sense.

[00:53:28] [Dan] Yeah.

[00:53:29] [Will] And as I think the court says, but it's not compelling.

[00:53:32] [Dan] Okay. Yeah. I think that's maybe that's maybe that's right. That that's the right way to think about it.

[00:53:39] [Will] And they say, a reason is not compelling if Congress has channeled it through the post conviction statute.

[00:53:46] [Dan] And here, there's some interesting, you know, Justice Barrett likes her metaphors with statutory interpretation. She says let me pull up this language. She says an argument that is compelling in one context is not necessarily so in another. The force of an argument depends on what it seeks to justify. For instance, a twenty fifth wedding anniversary is a convincing reason to shorten a business trip, but it is not a convincing reason to shorten a prison sentence.

[00:54:16] [Dan] Okay. Fair enough. But I do think at least just, you know, in general, put aside putting aside the statutory framework, a the possible innocence of the person in prison is a compelling reason to shorten the prison sentence. Right? You would think so.

[00:54:35] [Dan] It's more like it's not like the wedding anniversary.

[00:54:40] [Will] Well, and also so it you know, a different way to think about this would be, what if there was a second factor? Like, so the kinds of factors that are classically considered to this are like, you're sick, you're old, you know.

[00:54:51] [Dan] I feel like that's driving the analysis here, which is just kind of like, come on. That's not what this is about. Compassionate release. This is not this is not that.

[00:54:59] [Will] I mean, as the corp says on page 11, like, the statute's named compassionate release. That highlights its focus on granting mercy rather than writing legal wrongs. But I would think in that case, the case of even what the court considers compassion, could this be a relevant factor? Like, if I said, look, you know, the defendant is elderly and, you know, sick, and also, I'm not so sure he's guilty anyway, Something pushes it over the edge. Because it seems like surely the court would be sympathetic to the reverse.

[00:55:27] [Will] Somebody says, oh, the defendant is elderly and sick, and you say, yes. We are 100% certain that he committed the murder of a thousand people, so we're not letting him out. And if, you know, if certainty about guilt of a terrible crime could be a reason not to be compassionate, then presumably doubt about guilt could be at least relevant to being compassionate.

[00:55:47] [Dan] I'm not sure. I'm not totally sure where the line is here between, you know, these kinds of requests that go to the invalidity of the conviction versus those that do not.

[00:55:59] [Will] Yeah. The so the court does also get to draw on, you know, this line of cases that we've talked about in various episodes about other times that the habeas or post conviction relief statutes Mhmm. Kind of preclude other stuff. So there are a whole series of cases where defendants try to make section nineteen eighty three claims with the violations of their constitutional rights and then are told, oh, you can't do that because that claim actually belongs on habeas.

[00:56:22] [Dan] Yeah. We which we talked a little bit about

[00:56:25] [Will] At the Washington live show. Yeah. And so, you know, here, I think for the first time, the court is extending some of that logic to a new statute, not nineteen eighty three, but to two, which does make some sense to say, you know, once we've said, like, habeas is the process or twenty two five is the process, that's where claims of type x belong, though they don't belong in other statutes including here.

[00:56:49] [Dan] But this is a little different. Right? Because this is a statute definitely targeted towards letting people out of prison. Right?

[00:56:56] [Will] Right.

[00:56:56] [Dan] Section nineteen eighty three is not.

[00:56:58] [Will] And this is a statute that does have its own gates. Like, so section nineteen eighty three, one of the worries about it is it's just like, you know, section nineteen eighty three is a wide open cause of action for all constitutional claims. And so if you let people bring their twenty two fifty five claims in 1983, they all will, and twenty two fifty five will become empty. Here, you know, you do have to still show, like Yeah. It's extraordinary and compelling, and you have to convince the district court.

[00:57:23] [Will] There was a lot of discretion about this that you're right. Now I'm sure most people would try both, but it's easy to imagine some defendants will succeed under twenty two fifty five when they wouldn't succeed under thirty five eighty two.

[00:57:35] [Dan] Yeah. Right? Okay. And then you have a concurrence in the judgment by justice Sotomayor joined by justice Kagan that says, look, would reach the same result. Second circuit was right, but for a much narrower reason, which is basically, you know, there was nothing new here to rely on.

[00:57:54] [Dan] Yeah. Right? This is just kind of the same arguments this guy's been making all along. You can't just come back and rehash those to get compassionate release. You need to come forward with something new.

[00:58:05] [Dan] Right.

[00:58:05] [Will] So why should you need something new?

[00:58:08] [Dan] Compelling? I think basically it's basically the idea there, I think, is just that, like, you know, we don't want a world where district courts have an opportunity to, like, second guess their sentences for kind of whatever reason they want down the road. We kind of want, you know, we want some finality.

[00:58:26] [Will] Why?

[00:58:28] [Dan] I mean, don't you think I mean, the underlying concern behind all these things is floodgates.

[00:58:32] [Will] Right. Although the floodgates I mean, floodgates concern is so it's one thing when the district courts are being flooded and want to stop them. Right? So I would understand if a district court said, you came in with these compelling things, but nothing's changed. So, you know, it's not very compelling to me.

[00:58:50] [Will] I would understand that being a sufficient basis to deny it. It just seems odd if the district if you come in with nothing new, and the district court says, yeah. Even though you have nothing new, actually, I've changed my mind. And then we say, well, it's still not compelling. You know?

[00:59:03] [Dan] Yeah. I mean but I mean, we have a district judge here who wanted to do this. We don't know how many district judges wanted to do that. This is this is judge Hellerstein, who is I don't know if he's the oldest federal judge right now. Probably not, but he's you know, he's definitely not because Pauline Newman on the Federal Circuit who is suspended is older, but he's 92 years old.

[00:59:26] [Dan] And Yeah. You know, he may be seen as making kind of wacky decisions.

[00:59:31] [Will] So it could also be I mean, I guess it's there maybe there's just a distrust of district courts here. Because you could imagine a regime that says, this is a pretty discretionary standard, and we'll leave it to the district courts. And that actually often might be bad for the people seeking relief, but sometimes could be good. And in both these decisions, the court is kind of imposing legal constraints on district court discretion, maybe because it doesn't trust them to Yeah. To be the meters of compassion.

[00:59:58] [Will] It is also weird. Like, you sort of wonder if before the First Step Act, this had come up in a BOP case. Like, if the BOP had said, we have found extraordinary compelling reasons, namely, we're not sure this guy's guilty anymore. Now we understand, you know, it's not an actual innocence claim, but, like, we in the prison are kinda feel bad until this guy should be out, and we'd like you to let him out. I'm not sure the case would come out the same way.

[01:00:23] [Dan] Yeah. Although, I mean, that also seems problematic. Right? For you in some ways, kind of is like a threat to judicial supremacy. Right?

[01:00:30] [Dan] You have a this, you know, BOP, which is part of the executive branch coming in being like, you know, I'm not sure the courts did such a great job here.

[01:00:39] [Will] Right. Or it could also be a threat to the pardon power. You can say, look. Look. If the executive branch has doubts, the place for them to excise those doubts is through the pardon and competition power.

[01:00:46] [Will] But it just seems like that would be such a it would happen especially rarely, and there'd be such a small gate that it's not clear the court of the same view. Whereas Congress's decision to expand Yeah. Compassionate relief Yeah. Release means now the court has to kind of contract it.

[01:01:06] [Dan] Yeah. Yeah. That's interesting. Although, I mean, like, the BOP thing can cut the other way. Right?

[01:01:12] [Dan] On page 12 of the opinion, the court says, look, this was the way you go challenge a conviction, why is this basically kind of a process center around the BOP, right, where you gotta go to the BOP first? BOP doesn't have expertise in, like, evaluating convictions. It has expertise on, like, you know, is this elderly prisoner, you know, suffering?

[01:01:34] [Will] Right? Yeah. Yeah. I mean, certainly, if this is going to be a general menu for what counts as I mean, I guess this is a bigger interesting question is, and these are the court's first cases about post first step act compassionate release, and they've imposed, you know, two kind of, like, narrow doctrinal limits, like retroactive sentencing, reduction claims are not a basis, and innocence claims are not a basis. But then there's some music about and also the purpose of this is mercy.

[01:02:09] [Will] The kind of thing you should consider are the kinds of things that the BOP is an expert in, which could shape the exercise of discretion more broadly. I'm not sure Mhmm. How far that's gonna go. But if you know, it could be that kind of talk will have a much bigger effect on how the lower courts, you know, fit them to construct what counts as extraordinary compelling.

[01:02:29] [Dan] Because we now know, like, a couple things that don't count, but we don't know everything that does count.

[01:02:33] [Will] Right. And we don't know whether sort of everything counts except for the couple of things that are forbidden, or whether most things don't count and only things that Yeah. That feel like the equivalent of being old and sick

[01:02:47] [Dan] Yeah.

[01:02:47] [Will] Count.

[01:02:49] [Dan] And then, you know, we do have a lengthy dissent by Justice Jackson writing, you know, writing for herself as solo as she often does these days. Mhmm. You know, making some I think reasonable criticisms of, you know, where is the majority getting this, you know, statutory language, statutory interpretation, it's not in there.

[01:03:14] [Will] Yeah. Other than being 18 pages too long, I thought this was good.

[01:03:21] [Dan] Okay. So three pages is what you wanted.

[01:03:24] [Will] I was thinking two, but yeah.

[01:03:27] [Dan] just I'm doing some basic math there.

[01:03:30] [Will] Sure. That could be a third page.

[01:03:31] [Dan] The math isn't mathing thing.

[01:03:32] [Will] That could be a third page.

[01:03:34] [Dan] Okay. You could live with three pages. Yeah. Okay. So we also, you know, I don't know if we want to spend much time talking about it, but we had spent a little bit of time discussing talking about whether we should discuss Hamm versus Smith, which we can talk about the majority quite quickly, right, because it's a one line majority, procurium.

[01:03:58] [Dan] The writ of certiorari is dismissed as improvidently granted. Yeah. This is what we call a dig where the court is like, oops. Shouldn't have granted this one. We don't want to decide it.

[01:04:06] [Dan] Go away.

[01:04:08] [Will] And this we only have a few minutes to talk about it, but this is this is one of these Atkins cases. So about the Eighth Amendment principle that you it's unconstitutional to execute people who are mentally retarded. Mhmm. And then questions about how

[01:04:24] [Dan] Which is the language that the case law uses.

[01:04:26] [Will] Yes. And if you have a series of IQ tests and, you know, if the threshold is sort of IQ of 70, what happens if there are various standard errors and so on? It's interest I mean, the weird thing about it is like, why was it digged five months after argument?

[01:04:43] [Dan] Yeah.

[01:04:43] [Will] Sort of what happened here?

[01:04:45] [Dan] I think my suspicion is that maybe somebody changed their mind. Yeah. Could be. Doesn't that seem I mean, like something there must have been a lot of stuff floating around. Right?

[01:04:59] [Will] Yeah. The this is not a case I'm following closely, so I guess I'm I don't really know the answer. Two things I did notice in trying to figure this out. So I think this is a case where the court did not grant any of the questions presented by the petitioner in the cert petition. So Alabama filed cert petition, and the court had two QPs, and the court did not grant either one of them and instead granted a kind of, like, alternate QP put forward by The United States about how to think about this, which is always, like, a sign that the court's a little confused when I think about the case.

[01:05:32] [Will] Yeah. It means it's not the sort of bait and switch type dig where the, you know, parties show up with one QP and then argue something else because here, the court didn't even take what the parties wanted. Yeah. And I noticed that one thing that came up with argument that justice Barrett asked about is but which is sort of relevant to the QP thing is, like, what even is the state of Alabama law on this question? Mhmm.

[01:05:53] [Will] This is a whole complicated question of what to do with multiple IQ tests and how to figure out, like, do you average them? Do you take the lowest? Do etcetera. And one of the things the court has previously said as it tried to kind of moderate the effects of Atkins is we will defer to the state a lot about how to do this. Like, there's a threshold, but since we don't really know the various ways you could meet the threshold, we'll defer to the state a lot about what the right threshold is.

[01:06:17] [Will] And here, it's not clear that state law actually contradicts the things that Alabama is complaining about now in litigation Yeah. In part because of the way this has all evolved and so on. So and justice Barrett did flag that. So you could imagine getting into writing this and trying to write an opinion that says we defer to the state, but then saying, well, actually, what is the state's view, really? Yeah.

[01:06:38] [Will] And then deciding you need get out. We do know, I suppose, there are four dissenters, who are Thomas Alito, Gorsuch, and Justice Roberts. So if it was originally the case that they were planning to be joined by Justice Barrett or Justice Kavanaugh or both and, you know, somehow lost one of them Yeah. That could be Dwyddig, or lost them partly. Because if you, like, really lost them, they could join their side, have a majority opinion on their side.

[01:07:04] [Dan] Yeah. And we don't know who the original votes to Grant were. Mhmm. You know, my memory is there's some norm about, you know, once four vote to Grant, you can't the other five can't just immediately dig the case if nobody changes their mind because that would just kind of defeat the whole rule of four. This isn't that's not what happened here though.

[01:07:23] [Will] Right. You can't immediately dig the case. I thought post argument digs. Yeah. I'm not sure that's a rule or just a norm.

[01:07:29] [Dan] I'm not sure I'm not sure either.

[01:07:31] [Will] But we know Justice Kavanaugh wants to grant everything, so he presumably is one that wants to grant.

[01:07:36] [Dan] Yeah. Yeah.

[01:07:38] [Will] It's a puzzle.

[01:07:38] [Dan] I think it's good. Okay.

[01:07:40] [Will] Okay.

[01:07:40] [Dan] And in that case, you know, should also just note in Hamm there is a couple other things. There's a concurrence by Justice Sotomayor explaining why it was good to dig.

[01:07:58] [Will] Mhmm.

[01:07:58] [Dan] Right? Why this is a mess. Shouldn't get into it. So it's like the closest thing we have to a majority and it's just Justice Sotomayor and Jackson, which is kind of interesting. Justice Kagan doesn't want be to in the mix on that.

[01:08:12] [Dan] And then you have a dissent from Justice Thomas who says we should overrule this whole Atkins thing. Uh-huh. There's no basis for it. And then a more kind of like case slash fact specific dissent by Justice Alito.

[01:08:25] [Will] Yeah. I like always like when we get to add a new doctrine to the list of doctrines just as Thomas wants to see reconsidered. A doctrine all

[01:08:33] [Dan] of them. I think we need a list of things he doesn't wanna reconsider.

[01:08:36] [Will] Well, nobody has a canonical list of things he wants to reconsider, which I find extraordinary, and I'm gonna try to make one. But Yeah. I don't I don't know if it counts if it's a case where he dissented. Like, so, you know, he wasn't the court in Atkins thought it was wrong. Yeah.

[01:08:47] [Will] And, I mean, that doesn't automatically mean he'd want it overruled, but it makes it less of a reveal.

[01:08:53] [Dan] Yeah. Yeah. Okay. Okay. Very efficient episode.

[01:08:58] [Will] It's great. We're learning. We should do a TED talk.

[01:09:02] [Dan] Okay. Thanks very much for listening, and thanks very much to our partner, SCOTUS Blog. Please rate and review the show on your podcast app of choice. Visit our website, dividedargument.com. Our episodes are also hosted at scotusblog.com.

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[01:10:12] [Dan] Okay. And if there's a long delay before our next episode, it will be because we're on a retreat with our four different coaches that help us prepare for each episode.