Very Civilized Orangutans

[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.

[00:00:27] [Dan] So, Will, we are squeezing in at least one more episode before you go on a little vacation, maybe even another one. We'll see. What do you think? Do you think we're going to pull that off, scheduling in one more session before you leave town?

[00:00:43] [Will] I'm optimistic.

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

[00:00:45] [Will] There's a lot to do, but we're on a good roll.

[00:00:48] [Dan] Yeah. I've got a lot going on too, a lot of things I'm juggling, but I do like that we've had a good cadence. So see if we can keep it going. I'm going to continue with my prediction that we're going to beat the record. This is episode 28. It doesn't roll over to season 7, if you can believe that we're about to be in season 7, until the first Monday in October. And our record is 29, I think. Is that what we determined the record was?

[00:01:16] [Will] I don't remember. Yeah.

[00:01:18] [Dan] Record is 28. So actually, this is— we're tying the record today. So we just need that one more to beat the record.

[00:01:23] [Will] All right. I think you're right. I think we're going to beat the record.

[00:01:25] [Dan] Yeah, I think we're going to do it. Okay. So in this one, we might also make this a brisk episode. Let's see whether we can pull that off. We have one case to talk about.

[00:01:34] [Will] Yeah.

[00:01:34] [Dan] Before we do that, I don't think there's been much news from the court. Yeah.

[00:01:42] [Will] I think that's right. So Trump v. California, the emergency application about the president's attempt to save our elections from Democrats, is now fully briefed. The reply was filed August 4th, so we could get something at any time, but that's the kind of thing—

[00:02:02] [Dan] We're recording this on Thursday the 6th, so if something happens between now and when the episode releases, that's not our fault. Yeah.

[00:02:12] [Will] But it's the kind of thing that I wouldn't be shocked if we didn't get anything for a month either.

[00:02:18] [Dan] I don't know. There's not some great urgency, is there?

[00:02:23] [Will] Well, I mean, the president's attempt to save our elections is currently enjoined and the elections are not that far off. So, I mean—

[00:02:33] [Dan] But the general election is further away though, right?

[00:02:36] [Will] Yeah, yeah. But I think he's trying to—

[00:02:37] [Dan] There's primaries and stuff.

[00:02:39] [Will] I think he's trying to save the midterms.

[00:02:41] [Dan] Well, right. But I mean, it's August and the midterms are in November.

[00:02:45] [Will] Yeah.

[00:02:45] [Dan] Right. So I'm just saying it doesn't need to be this week necessarily.

[00:02:49] [Will] No, it doesn't have to be this week, but I think it's been enjoined at an early stage, so I don't quite understand what the plan is and what the threat is and all that. But at least in the president's telling, you can't save elections overnight.

[00:03:07] [Dan] Well, he always tells the truth.

[00:03:11] [Will] Okay.

[00:03:11] [Dan] Can we dig into the mailbag for a second, which we occasionally do? Yeah.

[00:03:15] [Will] Well, so I got a pointed response to our last episode, which of course had a discussion about the powers of Magneto, where a good friend of the show who will remain anonymous said, just wrote to me, lead is not magnetic. Sad.

[00:03:36] [Will] So I take this as a rejoinder to my argument that Magneto could control water by dint of control the lead that's potentially in the water, which raises 2 actually questions that have now puzzled me.

[00:03:48] [Will] One is, are Magneto's powers limited to ferrous metals, magnetic metals? And the answer seems to be pretty clearly no. There doesn't seem to be any rigorous analysis that Magneto can only interact with ferrous metals rather than non-ferrous metals.

[00:04:04] [Dan] Yeah, I know in one of the first 2 of the original trilogy of X-Men movies, Magneto uses his powers against Wolverine based on the adamantium.

[00:04:14] [Will] Yes.

[00:04:14] [Dan] In Wolverine's skeleton. I'm not aware of adamantium being— I mean, first of all, it's not a real metal, but if it were, I'm not sure that it is a ferrous metal.

[00:04:24] [Will] Yes. And there are examples of him using— according to my research so far, working on aluminum, copper, gold, adamantium, also vibranium. But so one thing I discovered when I was looking at this is there are lots of examples in the comic books of him moving nonmetals.

[00:04:41] [Dan] Really?

[00:04:41] [Will] Yeah. Well, in X2, I think he affects blood again by affecting the iron content in blood. And there are some where he affects plastics by creating magnetic fields around the plastic that then somehow move it. And it's been suggested in some sources that's because he actually has control over the fundamental forces, like that he can manipulate electrons because it's all—

[00:05:12] [Dan] But he's pretty powerful. I would say he's an S-tier mutant. I mean, there's some mutants that have pretty weak powers.

[00:05:19] [Will] I have a question about that. But then of course in some of the most recent movies, of course he's famously imprisoned in plastic as a way of getting around it. So I don't think there is a consistent in-universe view about the limits of Magneto's powers. But that makes me all the more confident that he could probably encase us in a block of ice.

[00:05:38] [Dan] Okay. Well—

[00:05:40] [Will] Now, one question is, why is S the top?

[00:05:44] [Dan] I've always wondered that. Is it from Japan? I thought that was like a Japanese thing.

[00:05:51] [Will] The Japanese word for best starts with S, you mean?

[00:05:54] [Dan] No, but just that designation that was like— I'm going to look this up right now.

[00:06:04] [Will] Okay. And has this always been a thing? I only learned about this in the past year or 2.

[00:06:07] [Dan] No, I feel like I've heard it discussed more in the last year. It's something from gaming more.

[00:06:15] [Will] Yeah. Now people on some of the podcasts I listen to, they rank Magic cards by S, A, B, C, D, E.

[00:06:24] [Dan] Yeah.

[00:06:25] [Will] And I thought at first it was just grade inflation, that as A has gotten inflated, we needed to have a new grade for A, but—

[00:06:32] [Dan] Okay, I've got the explanation pending, supposedly. Explanation incoming in— yeah, it comes from Japanese video games.

[00:06:46] [Will] Okay.

[00:06:48] [Dan] Japanese games have long used rank screens that add an S at the top for exceptional performance, sometimes SS and SSS above that.

[00:06:58] [Will] Okay. I mean, that is a source, but it's not an explanation.

[00:07:05] [Dan] What the S stands for is genuinely contested. The 3 common claims, it stands for special or superb, or there's a Japanese academic scale where there's a word, shu, I think, that sits above the other equivalent of an A. Popular online, but hard to document as to the actual origin. And then backronyms, which is also a good word. Backronyms like superior almost certainly come up with after the fact.

[00:07:35] [Will] Okay.

[00:07:37] [Dan] So I don't know.

[00:07:38] [Will] Okay.

[00:07:39] [Dan] I'm a little bit of a gamer myself, but I don't play a lot of Japanese games. I did play Death Stranding, which I think did use the S-tier designation. Okay. So have we resolved the Magneto thing? I like how you're coming up with this elaborate defense of what was clearly just a misspeaking at the time of the original episode. It's like the parsecs thing in Star Wars, right?

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

[00:08:09] [Dan] Where they use parsecs to refer to what's— in a way that makes it sound like it's a unit of time and it's not. And then I think there's like— are there 2 different retcons that explain that? One is about it is a unit of time, but it was about how fast you could get through a certain asteroid field. And the other was that it means something else or something.

[00:08:30] [Will] The retcon I'm aware of is that you have to chart a course and figuring out how to chart the shortest course is the safest way through. And so being able to do it in a small number of parsecs is—

[00:08:44] [Dan] Yeah.

[00:08:44] [Will] So more like I can name that tune in 4 notes or whatever. I can get through it. But yeah, I'm not averse to a little bit of stubborn attempts to redeem my mistakes.

[00:08:57] [Dan] Well, yeah, I don't know if that one fits into the rubric on the prediction scorecard, but maybe we need another ongoing scorecard for accurate claims about comic book figures or something.

[00:09:09] [Dan] With respect to the prediction scorecard, my student and teaching assistant, Caleb Rogers, wrote in to respond to what you were saying about how I shouldn't get any credit, or I should have— I think you said I should have the conditional statements I make at the end of each episode held against me, where I postulate some improbable thing that is going to delay the next episode.

[00:09:35] [Dan] And he pointed out, as a good logician, that a conditional statement is true if the condition does not come to pass. So if A, then B is a true statement if not A.

[00:09:51] [Will] Right. So if there's a long delay, it's because we've been encased in a block of ice by Magneto is true if there's not a long delay.

[00:09:58] [Dan] Yes.

[00:09:59] [Will] Because if there's not a long delay, you could put anything after the if thing didn't happen, and that'll be— And I took formal logic once upon a time, and I see the argument of this proposition. I don't know if I buy it because it does seem like it rests in part on the— it's truly not false, right? If you've predicted, if there's a long delay, this will be why, and there is no long delay, it clearly hasn't been falsified. But whether to call it true, it seems like it might depend on the counterfactual truth.

[00:10:32] [Dan] Well, at that point, I guess it's not a prediction. It's a conditional prediction. It's like—

[00:10:37] [Will] Right.

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

[00:10:40] [Will] Right. But we do make conditional predictions on the show sometimes. And so clearly the spirit of the exercise is to score conditional predictions only if their condition comes to pass. But the problem with my view that we should say it's not true is that would suggest there are propositions that are neither true nor false, which is contrary to the standard view. Okay.

[00:11:04] [Dan] So some other things. Anything else to say about that one?

[00:11:07] [Will] No.

[00:11:08] [Dan] Okay. So I wanted to thank some various people who have been helping out with the show recently. Peter Duff continues to do a great job mixing and editing our episodes. A friend of the show, Louis Levesque, has been helping clean up some of the transcripts of the back catalog, which has been really helpful.

[00:11:27] [Dan] WashU Law undergrad Nathan Wiebke has been helping with editing the show for YouTube. So we are now on YouTube. And I'm not sure why anybody would actually want to consume the show in that fashion, but we are there. It takes a little while to get the episodes converted to the video format, but we're over there.

[00:11:46] [Dan] And then your student, Jessie Henderson, has been super helpful in tuning up our website. So thank you to Jessie. And then Jessie also went on a little field trip in relation to something we talked about on the show. What happened?

[00:12:06] [Will] Well, do you remember we talked about the Aurora Tap?

[00:12:11] [Dan] The Aurora Tap room in Ybarra versus Illinois?

[00:12:14] [Will] Yes, the location of this famous site that we tried to find on Google Maps.

[00:12:18] [Dan] Yep.

[00:12:19] [Will] She went out and found it.

[00:12:21] [Dan] Which unfortunately, it does not seem to be still a taproom that one can drink at.

[00:12:28] [Will] Yeah. And it does not appear to be located where the internet would lead you to believe it's located.

[00:12:33] [Dan] Yeah.

[00:12:34] [Will] So it took some digging, but—

[00:12:37] [Dan] It is a building that has one of the doors, windows, the windows and the door is covered by paper. The other one has a curtain in front of it. And then there appears to be a notice of disconnection of electric service in Spanish, and some other kind of final notice. I don't know if there was an eviction or something. So it seems like not a thriving locale for whatever reason.

[00:13:04] [Will] It's because you can't put heroin there anymore.

[00:13:07] [Dan] Allegedly. Yeah. So hopefully maybe someone will take control of that space and bring back the taproom.

[00:13:16] [Will] Yeah, and make it a thing. Turn it into a Supreme Court-themed taproom.

[00:13:22] [Dan] Yeah, that would attract at least 3 or 4 professors from the greater Chicagoland area to come check it out. I'm not sure that would be a great business model, but I don't know.

[00:13:36] [Will] Anyway. You would go.

[00:13:37] [Dan] Would you go? Is it too far from you?

[00:13:39] [Will] I mean, it's far, but for a good cause.

[00:13:42] [Dan] You would go once, on a whim.

[00:13:44] [Will] I don't think I'd become a regular, if that's what you're asking.

[00:13:47] [Dan] Yeah. Are you a regular anywhere? Do you have like a neighborhood bar you're at, like drinking at 3 nights a week? I'd assume not.

[00:13:55] [Will] No, no. You know, when I was a fellow at Stanford before I got this job, I was flying back and forth to San Diego every week. About a year in, I was buying a bottle of water at the Sunset News at the San Jose airport, and the woman at the San Jose News sold it to me and then smiled and said, see you next week, sir. And so that was the first time I'd become a recognized regular anywhere, and it was at the newsstand across from the San Jose Airport.

[00:14:24] [Dan] Not the most— yeah, I don't know how you feel about that. I've become a recognized regular at my local Starbucks, which I have mixed feelings about, but it's a very easy place to go get a coffee. You just put in my online order, and so now they thank me by name when they see me.

[00:14:42] [Will] The law school faculty have lunch 2 to 3 times a week at the Faculty Quad Club where we're recognized. And I think probably kind of a regular there. Lots of people there know already what many of us want and things like that.

[00:14:55] [Dan] Do you always get the same thing?

[00:14:57] [Will] No, but I always get iced tea to drink.

[00:14:59] [Dan] Okay. Exciting. All right. So should we talk about the one and only case we're going to talk about? The one and only substantive matter we're going to address, which is a case sort of in my wheelhouse, maybe yours, because I feel like all of law is in your wheelhouse, but this one is at least one that I teach about.

[00:15:19] [Will] I'm not sure this case is law, Dan.

[00:15:22] [Dan] Well, the topic is law. Whether it makes law is a different question. This one is pretty interesting.

[00:15:28] [Will] Or applies law. What's going on?

[00:15:29] [Dan] Yeah.

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

[00:15:30] [Dan] The methodology might leave some questions. There's a case called Hunter v. United States, and this is a case about plea bargaining and the enforceability of certain kinds of appeal waivers in a plea bargain.

[00:15:46] [Will] Mm-hmm.

[00:15:46] [Dan] So typically, defendant is being prosecuted for some federal crime. Defendant could exercise their right to a jury trial, go to a jury, have a trial, And if they get convicted, quite bad stuff could happen. They could get a very stiff sentence.

[00:16:04] [Dan] Most defendants choose not to do that. They choose instead to take a plea bargain where the prosecution offers some concession in exchange for a guilty plea that is going to presumably result in lower punishment than would have obtained absent the plea bargain. And usually there's a lot of other provisions in those agreements, which are typically in writing. And one of them that's very common is a waiver of the right to appeal.

[00:16:34] [Will] Yeah.

[00:16:35] [Dan] So the person says, I plead guilty. You're going to do— the government's going to do this. In exchange, I'm going to do that. And also, I agree, I'm giving up my right to appeal the conviction or sentence that I'm ultimately going to get as a result of this plea bargain.

[00:16:48] [Will] Right. And now, even if you didn't waive your right to appeal, Presumably, in many cases, you would have nothing to appeal, right?

[00:16:55] [Dan] Yes.

[00:16:55] [Will] Because it's not— if you do appeal, it's not like you magically unwind the plea bargain and start over. If you do appeal, the question will be, well, you did admit these things were true.

[00:17:03] [Dan] Yeah. So you would need to— there's things you could appeal on. You might be able to say, I didn't know I was pleading guilty. I wasn't properly informed. It wasn't knowing and voluntary. You could appeal a sentence.

[00:17:15] [Will] Right.

[00:17:15] [Dan] Right? That's a very common thing to want to give up. You could be appealing a ruling on some pretrial matter. But, you know, yes, conceivably there are things, many things that you wouldn't really have a basis to substantively appeal.

[00:17:32] [Will] Well, can you really waive your right to appeal whether it was knowing and voluntary? Because the appeal waiver is itself going to be part of the plea agreement. And so, I mean, you could imagine—

[00:17:42] [Dan] Presumably not, yes.

[00:17:43] [Will] There could be a rare circumstance in which you knowingly and voluntarily signed your appeal waiver, but did not knowingly and voluntarily sign your whole plea agreement.

[00:17:51] [Dan] Well, this comes up in the law of civil arbitration though, right?

[00:17:54] [Will] Well, sure. In arbitration, we do regularly say the arbitration clause is valid, and therefore we don't hear any more questions to the— but as to knowing of voluntariness, I think often there is that issue of like—

[00:18:03] [Dan] Yes.

[00:18:04] [Will] Now, it could be you'd be like, well, the only thing I knew about this contract is it contained an arbitration clause.

[00:18:09] [Dan] Under arbitration principles, I think that would be okay, right? Because you have to— in order to go to court and challenge an arbitration agreement, I think you have to show that there's something wrong with the arbitration clause.

[00:18:20] [Will] Right.

[00:18:20] [Dan] So even if you say this entire contract was procured by fraud, but I did validly agree to arbitrate, then that's it. You've got to go make that argument to the arbitrator.

[00:18:30] [Will] Right. But if the entire contract, including the arbitration clause, was procured by fraud, then you could invalidate the whole thing. Yes.

[00:18:35] [Dan] Although courts, federal courts do screw this up all the time. Yes.

[00:18:39] [Will] All the time.

[00:18:39] [Dan] This is a frustrating mistake. Okay. But so there might be things that you would want to appeal from, like a sentence, right?

[00:18:47] [Will] Right.

[00:18:47] [Dan] Because a plea bargain typically does not guarantee a certain sentence. There are forms of plea bargains that have to be accepted by a court in exchange for a certain sentence, but the typical one says, we will drop these charges, we will recommend a certain sentence, we won't argue for certain— the prosecution is saying, we won't argue for certain sentencing enhancements, et cetera, et cetera. But then the person pleads guilty, the judge says, okay, you're guilty, and now I get to impose the sentence, and I'm not bound by whatever you agreed to with the prosecution.

[00:19:17] [Will] Right, right. And the judge might surprise— like, it might be we all agreed expecting the judge, you know, in not binding, but expecting the judge to do X, and then suddenly the judge does X squared.

[00:19:27] [Dan] Yeah, yeah. Okay, so I'm not sure where to start with this one. I mean, we've, we've started with this one, but I will say at the outset, this is going to be an opinion by Justice Kagan that is going to command, um, surprising degree of consensus despite the contents of what the opinion does, which is quite confusing. I mean, what it does is not confusing. The basis for what it's going to do is confusing, I would say. Is that fair?

[00:20:01] [Will] Yeah. I mean, this is another— and we talked, I think, about her opinion in Chatrie and her ability to command. In some ways, that's sort of a surprising amount of consensus to do something. And this is another Kagan masterstroke.

[00:20:17] [Dan] Yeah. And she's going to get everybody except for Justice Thomas. She's going to get 8. Right.

[00:20:24] [Will] 8 people join not just her result, but her opinion. And then there are 2— no, 3 competing concurring opinions. Well, they're not all competing, but there are 3 different concurring opinions. There's a Concurring opinion by Justice Gorsuch, joined by Sotomayor and Jackson, that we're definitely going to want to talk about. A concurring opinion by Kavanaugh, joined by Alito and Barrett. And then another Barrett concurring opinion, which is in part a response to the dissenting opinion by Justice Thomas.

[00:20:52] [Dan] Okay. And so just to give a little bit more background, here we have a defendant who was charged with various counts of bank and wire fraud. Was doing a lot of fraud and ended up costing various financial institutions about half a million dollars.

[00:21:10] [Dan] So he pleads guilty under an agreement to one count of aiding and abetting wire fraud in exchange for dismissal of the other 9 charges and promise not to prosecute him for described conduct in the future. And that provision, that plea agreement contained an appeal waiver.

[00:21:29] [Will] All right.

[00:21:30] [Dan] That, by its language, was pretty broad. Now, something a little wacky happened when he was being sentenced by the judge, or rather, the district court accepts the plea agreement, later imposes a sentence, and in doing so includes a term of supervised release, which included some conditions requiring the defendant to take medication if directed for mental health reasons.

[00:22:00] [Dan] He had objected to that. The court also said to him, you have a right to an appeal. So that's one small wrinkle, and the prosecutor didn't object to that. Previously, when accepting the plea, the district court had told him about the appeal waiver.

[00:22:15] [Dan] So that thing sets up a small issue in the case, which is, did the fact that the trial court said that to the defendant, that he had a right to an appeal, does that suddenly negate the appeal waiver? Answer to that one is no. Is that fair? I don't know. It's sort of like parol evidence in a contract case, or it's sort of like oral modifications to a written contract. Usually you can't do that, right?

[00:22:38] [Will] I guess, but just in reverse. So if there was no appeal waiver and the defendant or the defendant's lawyer said at sentencing, now, we promise not to appeal. They might be bound by that, right? I mean, it wouldn't be an appeal waiver, but they—

[00:22:53] [Dan] In exchange for what?

[00:22:55] [Will] I don't know. They just mistakenly said it. If the lawyer just mistakenly thought that he had an appeal waiver and announced, I'm not appealing. Now, maybe you could still appeal anyway.

[00:23:03] [Dan] I don't know. I'm not sure why that— yeah. Yeah. So some sort of version of that happens in this earlier case, Class v. United States. The court talks about this on 7, which is at the plea hearing. The district court erroneously told the defendant he was giving up his right to appeal. And it seems like that shouldn't— just being told that false thing shouldn't— Right.

[00:23:27] [Will] No, I just mean more like lawyers regularly say something in the moment that has major consequences in terms of waiving an argument or something. You have to make a game-time decision at trial, and your failure to object or your decision to say okay can be—

[00:23:41] [Dan] Yeah.

[00:23:41] [Will] But when judges make mistakes, we just say, oh well, judges, what are you going to do?

[00:23:46] [Dan] Yeah. Although here, I mean, so first of all, I mean, the prosecution, yes, could have objected to that, but didn't. But also, it doesn't seem like there was reliance on this, right? If this happens at sentencing—

[00:24:00] [Will] Well, there was too late for them to do anything.

[00:24:02] [Dan] Yeah.

[00:24:03] [Will] Yeah, that's probably right. Although there might be— so I don't know if they argued this, but the court imposes this condition, then says, all right, you have a right to appeal, and then says, do you want to say anything else? And they say, nope, nothing further. And if the judge said, now, by the way, this is your last stop. Speak now or forever hold your peace. If you can't convince me this is a mistake, you can't convince anybody else. Maybe they would've tried harder to convince the judge not to do this. Now, it sounds like they wouldn't have succeeded, but you might have, knowing you didn't have another chance.

[00:24:40] [Dan] But for whatever reason, this one is not going to be the hard issue in the case, or at least not going to be the important issue in the case.

[00:24:44] [Will] Okay. What is?

[00:24:45] [Dan] And the court just says, look... And again, this is a place where here, And this is actually a context that we talk about in mine and Danielle's forthcoming general private law paper in the Harvard Law Review, which is that this area of plea bargaining is a place where the court just kind of relies on these amorphous, free-floating principles of contract law.

[00:25:09] [Will] Are they general law?

[00:25:10] [Dan] That's what we argue, at least in some definition of it, right? These kind of transjurisdictional principles. The court is looking at the Corbin treatise on contracts to figure out how to interpret these things. Does not clearly seem to be treating them as the state law of the jurisdiction where the plea bargain happens. And sort of something like that seems to be happening here. The court isn't really citing much, but the court is talking about general contract law principles. There was neither an offer nor acceptance by those parties, and so no conceivable meeting of the minds. It's the party's intent that matters. So I think that's interesting. I want to come back to that concept in a few minutes, but that's just an interesting thing that goes on in a lot of these plea bargaining enforcement cases.

[00:25:56] [Will] Yeah.

[00:25:57] [Dan] Okay, so that one's out of the way.

[00:26:00] [Will] Okay.

[00:26:01] [Dan] And so now the question is, all right, you know, this plea bargain appeal waiver is still valid in some sense, right? It is not wiped off the books, notwithstanding whatever the trial court said. Is it enforceable here?

[00:26:17] [Will] Right. The court reiterates, we already know that we talked about, you know, in general, you, you can't enforce an appeal waiver that's not knowing and voluntary, and you can't enforce an appeal waiver if it was the product of ineffective assistance of counsel, right?

[00:26:35] [Dan] Yep.

[00:26:36] [Will] Because again, like, if you, you know, if your lawyer told you, okay, you signed that waiver because, you know, whatever, something not true and below the standard of professional competence, etc., etc. And then the question is What else, or is there anything else?

[00:26:52] [Dan] So, and I guess there had been a circuit split on this question. And so the Fifth Circuit had said the only other time is if the sentence sought to be appealed exceeds the statutory maximum.

[00:27:06] [Will] So that makes— I was thinking of that because I was like, imagine you plead guilty to this, and then the judge is like— I mean, imagine a bad judge, a hanging judge. It says, okay, is there an appeal waiver? Okay, good. In that case, I sentence you to death.

[00:27:19] [Dan] Yeah. That seems— that shouldn't be allowed, although at least we have that vague sense. I'm trying to pin down where that comes from. But then I guess that most of the other circuits had come up with something broader than that, but a little bit less clear, some kind of a miscarriage of justice exception. So those courts of appeals would say, you still get to an appeal

[00:27:44] [Will] Uh-huh.

[00:27:44] [Dan] If not letting you appeal would produce a miscarriage of justice.

[00:27:51] [Will] Okay.

[00:27:51] [Dan] And the court is going to choose that one, the miscarriage of justice rule. And the thing that is really weird about this case is trying to figure out where it gets the authority to do that.

[00:28:06] [Will] Uh.

[00:28:07] [Dan] And it seems like— let me, let me just, um, try to walk through what I understand the reasoning to be.

[00:28:13] [Will] Okay.

[00:28:14] [Dan] And you tell me where I go, of course. And so first, the court says, the answer stems from the special and indeed pivotal role of the judiciary in approving and implementing appeal waivers.

[00:28:24] [Will] Okay.

[00:28:25] [Dan] So basically, whether to enforce an appeal waiver is kind of up to courts. And the court had previously said that these questions about whether to Except pleas generally, including plea waivers, are given over to sound judicial discretion.

[00:28:44] [Will] Mm-hmm.

[00:28:45] [Dan] Okay. And then this is all part of this process in which courts have this discretion. And then she says the standard for enforcing appeal waivers implicates the interests not only of the agreement's parties, but also of the judiciary. And that enforcing appeal waivers under certain circumstances would make courts look bad. We don't want to make courts look bad. And so there's a, would this make courts look bad, exception to enforceability of appeal waivers.

[00:29:13] [Will] Right.

[00:29:14] [Dan] I mean, that's the reasoning, right? Did I miss something?

[00:29:16] [Will] Well, I mean, so there's several puzzles here. One is you start with, where's the authority for the exception? But maybe part of this is, where's the authority for accepting them at all?

[00:29:28] [Will] It'd be one thing to say, look, prosecution and the defendant can make whatever deals they want to. They're grown men, but they want something more than just that, right? They want the clerk's office in Fifth Circuit or wherever to enforce their contract for them and not put the— or at least one of them is going to say, don't put this case on the docket for argument because we promised not to be here. And that's not obvious, right? There are lots of times there are agreements between 2 people where a court says, well, it's nice that you agreed to that, but I didn't agree to that.

[00:29:58] [Dan] But I mean, here there is a provision in the Federal Rules of Criminal Procedure that does make these enforceable in some way, right?

[00:30:05] [Will] That makes plea bargains enforceable, or that makes appeal waivers enforceable?

[00:30:08] [Dan] Makes plea bargains enforceable.

[00:30:09] [Will] Right.

[00:30:10] [Dan] Yeah. Not necessarily appeal waivers specifically.

[00:30:13] [Will] Right. But so once we say, okay, well, so the enforceability is really coming from some public law, the Federal Rules of Criminal Procedure say these things are going to be enforceable, and that's been interpreted to mean not totally enforceable, but the judge gets some say in whether to agree to them, then the next step is to say, Well, this is— an appeal waiver is just a plea bargain for appellate courts. The plea bargain goes to the district court. He's the one accepting it. But the appeal waiver is just like a mini plea bargain that affects the appellate courts. And so the appellate courts get a similar amount of something to decide whether to accept it. I think that's the move.

[00:30:49] [Dan] I think so. And that then—

[00:30:50] [Will] Although, what is this rule of criminal procedure? I should have looked it up before.

[00:30:54] [Dan] Rule 11. Yeah, why don't you take a look at Rule 11, see what you think about that.

[00:30:59] [Will] I used to be really into Rule 11. There are these cases about when is it abuse of discretion for a judge to refuse to take a plea that I used to follow. Because you'd occasionally get judges refusing to take a plea because they didn't believe the defendant was guilty, even if the defendant said he was guilty.

[00:31:15] [Dan] Oh yeah, those are interesting.

[00:31:17] [Will] Or just not taking because they didn't like plea bargaining. Okay.

[00:31:22] [Dan] Okay. So you were looking at Rule 11. Have you discovered the answer to the riddle in the text of Rule 11?

[00:31:29] [Will] No. Rule 11 definitely says that there can be this thing, not just a plea, but a plea agreement, and the court can accept it or reject it. And here's what happens if they accept it, here's what happens if they reject it. It seems to envision some amount of judicial decision of whether to accept it or reject it. Right. That doesn't help.

[00:31:50] [Dan] Well, I mean, I think, yeah, but I think there's a couple different things going on there, because there's different kinds of plea agreements, right?

[00:31:59] [Will] Sure.

[00:31:59] [Dan] There's ones where the agreement has to be accepted by the court, because the court is agreeing to go along and impose a particular sentence.

[00:32:06] [Will] Right.

[00:32:06] [Dan] And there's ones where the court doesn't have to accept the agreement, but has to accept the plea.

[00:32:10] [Will] Right.

[00:32:11] [Dan] The 2 parties agree, and then they come to the court and say, okay, I'm going to plead guilty. The defendant says, I'm going to plead guilty. We've got this agreement. And the court says, okay, that's fine, you've got that agreement. I'm going to agree to accept your guilty plea, and then I will do what I want at sentencing.

[00:32:25] [Will] Right. Yes. But also, they can choose to reject the plea agreement, right?

[00:32:31] [Dan] No, not of the kind.

[00:32:35] [Will] Okay. Right. Only of the and kind.

[00:32:37] [Dan] So the ones that actually require the court to do something, the court can reject it.

[00:32:41] [Will] Got it.

[00:32:42] [Dan] Okay. So if the court is going to have to either dismiss some charges or impose a particular sentence, the court can say no.

[00:32:48] [Will] Okay. Then it's really they have to reject the plea to reject the agreement.

[00:32:53] [Dan] Yeah, I think so. Right?

[00:32:55] [Will] Okay. Okay. Yeah. All right. So now, okay. So one thing just to say about the— or 2 things to say then about the syllogism. So I like the idea of, okay, you've got this whole, some sort of discretionary apparatus of what to do at the district court level, although— and then this is just the appellate court version of it. Now, the district court version, as we just established, does have a whole rule about it, making it a thing. And I don't know—

[00:33:23] [Dan] I don't think that there's like— the rule doesn't say district courts can refuse to accept it if it would make a court look bad.

[00:33:29] [Will] Right. And I don't know that there's a Federal Rule of Appellate Procedure that says that. And then also, we somehow went from, this is a matter of the discretion of the judge who is being asked to, you know, follow it, to the Supreme Court, who is neither the court of appeals nor the district court, gets to step in and tell other people what the rules are for their exercise of their discretion.

[00:33:54] [Dan] Yeah. And eliminate the discretion, right?

[00:33:56] [Will] Right. Which, I mean, now one view of the Supreme Court is anything a lower court can do, the Supreme Court can tell the lower court how to do.

[00:34:07] [Dan] Yeah.

[00:34:07] [Will] Because when the lower court does it, it's judicial power, and the Supreme Court has the power to tell anybody else with judicial power how to use their judicial power. That's not obvious though, right? You could think there are things that lower courts get to do that the Supreme Court just would need some basis for telling them when they were wrong about it.

[00:34:24] [Dan] Yeah. But the court is going to say, this is how it's going to work, and it's going to do it for just transparently and frank instrumental legitimacy reasons, right? They're like, we don't want to make courts look bad, therefore we have to have a rule that lets courts not look bad.

[00:34:44] [Will] Right?

[00:34:44] [Dan] I mean, that's literally the rationale, which is like, we don't— we have to have an out. We have to have a safety valve for situations that would, like, call the judiciary into disrepute.

[00:34:56] [Will] Yeah.

[00:34:57] [Dan] I mean, that's the reasoning. I'm not missing something.

[00:35:05] [Will] I mean, okay, so if this were the general law of contracts, Then in the course of expounding the general law of contracts, you can consider factors like this, I guess?

[00:35:20] [Dan] I guess. Courts could say contracts are enforceable unless enforcing them would make the court look bad. I don't know whether that's a generic principle of contract law. It might be, it might not be.

[00:35:31] [Will] No, there's a generic principle of unconscionability, which is then often under-enforced. But then sometimes when people do want to enforce it, they do it by coming up with some way to say, well, this is not just all-purpose unconscionability, but there's a specific problem going on here that requires a more specific rule that comes from unconscionability.

[00:35:49] [Dan] Yeah.

[00:35:50] [Will] So we could say it's unconscionable, it's an unconscionable agreement when it would make the court look bad, or make the court look really bad. Because, I mean, you might think, and I guess we're going to get to this, you might think this entire system of plea bargains and appeal waivers and stuff makes the courts look bad.

[00:36:09] [Dan] Yes, but apparently some things make the court look really, really bad. And so if there is an error of the type that would undermine public confidence in the judiciary, then that appeal waiver is no good.

[00:36:24] [Will] Yeah.

[00:36:25] [Dan] And again, I don't totally know how a lower court is supposed to apply this, through opinion polls or something. Well, they're like—

[00:36:31] [Will] I mean, and also, right, you might think like anytime a court doesn't apply the law, it undermines confidence in the judiciary.

[00:36:38] [Dan] Yeah, like any sentence that's illegal in some way.

[00:36:42] [Will] Right. Now again, I get again at a basic level, if the test is something like accepting as given the ordinary system where nobody gets to go to trial and we punish people who try to go to trial, even though that's bad and illegitimate, accepting that as given, is this something that's unusual even to somebody who accepts that? I'm okay with garden variety plea bargains, but whoa, that one's weird. I guess that's what the standard's supposed to be. And you could see why.

[00:37:12] [Will] I mean, I don't know also how many— there's some examples cited here. I don't know how many actual examples of this there are, actual miscarriages of justice that have been adjudicated to be such by the courts of appeals, or how much this is—

[00:37:24] [Dan] I mean, apparently this has been the rule in a lot of courts of appeals for a while.

[00:37:27] [Will] Yeah, but right, but the rule, it might be that It might be that what makes the courts look good, or at least feel good, is to say, well, don't worry, we would never enforce this if there's a miscarriage of justice, but this is not a miscarriage of justice. And that makes the courts look better than saying, honestly, we don't care if it's a miscarriage of justice, we're not going to enforce it anyway. Even if it's the same rule either way, pretending that you care might make the courts look good.

[00:37:51] [Dan] Okay. All right. So here's the examples the court gives us that would definitely count.

[00:37:55] [Will] Okay.

[00:37:55] [Dan] Defendant may appeal a sentence exceeding what the relevant statute allows.

[00:37:58] [Will] Yeah.

[00:37:59] [Dan] Okay, great. All right, fair. A defendant may appeal a sentence infected with a blatant constitutional error. So if at sentencing, the judge says, I'm going to give you extra years because of your race, or imposes a constitutionally infirm condition of supervised release, like barring a defendant from becoming pregnant. Okay.

[00:38:18] [Will] But it has to be blatant. Just a constitutional error is not enough. Okay.

[00:38:21] [Dan] Yeah. And then— well, sorry. In that example, it is blatant. We don't know for certain. Whether that is the rule, whether the rule requires blatancy, I think.

[00:38:32] [Will] They give us an example. A defendant may appeal a sentence that is infected with a blatant constitutional error, such as X or Y. I take it an ordinary constitutional error, like you didn't apply Booker correctly, I assume doesn't count.

[00:38:47] [Dan] Well, I think that the majority probably doesn't anticipate it would count, but we'll get to that. Disagreement, potential disagreement in a second. And then third, defendant may appeal if his sentence was imposed without some minimum of civilized procedure. And then one example is a case where the 12 orangutans decide the punishment, or less extravagantly, one in which the judge refused to hold a hearing consonant with basic principles of law. So these are all things that are fairly egregious.

[00:39:19] [Will] Although already I'm confused, because what Are we envisioning that there are refusals to hold a hearing consonant with basic principles of law that are not also infected with a blatant constitutional error?

[00:39:32] [Dan] Well, it depends which basic principles of which law, I guess.

[00:39:36] [Will] Well, I'm assuming they mean something like due process. Due process does not apply in full form at sentencing, but it applies. It requires something vague like not letting 12 orangutans.

[00:39:46] [Dan] Yeah. I would think due process requires Some minimum of civilized procedure is something that due process generally requires.

[00:39:54] [Will] Right. So are we envisioning— is the point of the 3rd exception to say there are times when, okay, there is a minimum of civilized procedure, so presumably not the orangutans unless they're very civilized orangutans, but still, despite the minimum of civil procedure, it's still not consonant with basic principles of law? Okay. And then we're told these examples are just examples, not intended to be exclusive, but they serve to illustrate the high bar a defendant must surmount to overcome an appeal waiver.

[00:40:22] [Dan] Okay. So something bad, really bad. Okay. And so we're not even going to decide here whether this guy, Hunter, whether his claims are within this standard or not, because the Fifth Circuit, the lower court, applied a sort of more demanding rule.

[00:40:40] [Dan] So this is going to go back down and we're going to figure out— Fifth Circuit is going to ask whether this would be a miscarriage of justice to enforce this appellate waiver under these circumstances. I suspect they will say no, but I'll make that as— that's a prediction. Let's put that on the scorecard.

[00:40:58] [Will] Yeah. Okay. I'll give you that. But the argument that they could would be this is potentially a blatant constitutional error because there's some sort of substantive due process right.

[00:41:08] [Dan] There's some case law about not forcibly medicating people, but I don't know what that case law looks like in the sentencing context. I mean, there's all sorts of exceptions to ordinary constitutional rules in the sentencing context.

[00:41:20] [Will] And maybe also a sentence exceeding what the relevant statute allows argument. So I don't know if this is intentional, but I think when the court describes the previous Fifth Circuit rule, it's that you have to say your sentence exceeds the statutory maximum, which is one form of illegal sentence. Of course, another way a sentence could be illegal It's because the supervised release statute could implicitly rule out some terms of supervised release as crazy, even if they're not unconstitutional.

[00:41:45] [Dan] Although my understanding is that the language of those provisions is extremely vague. The sandwich board sentence was consistent with— I can't remember which provision in the federal—

[00:41:59] [Will] But at least in the 7th Circuit, under the Judge Posner regime, the court got much more skeptical about various conditions of supervised release and started saying, well, you can't just do this and this and this. And in a sense, what it was saying is— and it was saying, this sentence exceeds what the relevant statute allows in this case. You can't give this term of supervised release.

[00:42:19] [Dan] Well, that seems like it exceeds the statutory maximum then.

[00:42:22] [Will] Well, so the Kagan phrasing is not just the statutory max, because it could be that forced medication is not outside the statutory maximum in some case, but it could be that it's illegal in my case because there's not a good enough reason for it. But the Kagan formulation was not just— or the majority formulation was not just exceeds the statutory maximum. It was anytime it exceeds what the relevant statute allows, most commonly a term of years above the maximum prescribed.

[00:42:46] [Will] So they could be potentially putting a lot of sentencing challenges into that, depending on what they mean by that. And potentially a lot of supervised release challenges, which may not be what they intend. I don't know.

[00:42:59] [Dan] Yeah.

[00:42:59] [Will] But it's got to be a disreputable condition of supervised release, whatever that means.

[00:43:03] [Dan] Yeah.

[00:43:03] [Will] Okay.

[00:43:04] [Dan] Okay. So I guess one question, maybe we should wait on this before we get until after the separate opinions. But I mean, just one question is, how does she get 8 votes on this? It's kind of this very law-free, very explicitly instrumentalist mushy. I mean, this does not feel like a 2026 8-1 case.

[00:43:35] [Will] You think the Supreme Court doesn't do law-free mushy things?

[00:43:39] [Dan] Not written like this, and certainly not typically in defendant-friendly directions.

[00:43:44] [Will] Not in cases that don't involve Donald Trump.

[00:43:47] [Dan] Yeah. I guess he counts as a defendant in an immunity case. Yeah.

[00:43:54] [Will] He got a very mushy instrumental made up rule in his favor, but it didn't get any votes.

[00:43:59] [Dan] It wasn't 8-1.

[00:44:00] [Will] That's true. Well, 2 obvious partial explanations are, again, in some sense, we're already in for a dime, in for a dollar. We already have some kind of regime where we have these agreements and courts deciding what to do with them and rules about them. And so unless you're going to question the fundamental legitimacy of the system, you kind of already have accepted there's some kind of a thing.

[00:44:24] [Dan] Or you could just say people can, as long as it's knowing and voluntary, they can agree to whatever they want.

[00:44:29] [Will] Well, but yeah, but it still wouldn't follow that the court would have to enforce whatever it wants. You might say people could agree whatever they want, and if you appeal anyway, you're welcome to sue them for breach and damages, I guess. Good luck. I mean, that's what we would normally do. It's the Federal Arbitration Act that makes a special federal law that makes us take arbitration agreements more seriously.

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

[00:44:47] [Will] For instance. But I take it there's also just an elegant ambiguity to this. So the fact the court could go further and say, this is a miscarriage of justice because it's a borderline unconstitutional or illegal sentence. The court could go further and say, yes, we want to adopt the miscarriage of justice standard, but we don't take a position on— but this is not a miscarriage of justice. By doing neither, everybody might get something they want.

[00:45:23] [Dan] I guess, yeah. It's still like— it prevents some problems for formalists, exactly what the court is doing here. And let's try to see how the different separate opinions deal with it. So Gorsuch opinion is fascinating.

[00:45:39] [Will] Yes.

[00:45:40] [Dan] Gorsuch opinion just comes out absolutely swinging against plea bargaining.

[00:45:46] [Will] Yes.

[00:45:46] [Dan] And he says, in our times, the jury trial has given way to a conveyor belt of plea bargains. At least some responsibility for that development lies with this court, and today the court begins to correct course. So he sort of sees this as what he is hoping will be a much larger project of reining in plea bargaining.

[00:46:07] [Will] Right.

[00:46:08] [Dan] He makes this pretty fascinating argument that feels like it's ripped from the pages of the law reviews. And in fact, he explicitly cites a couple different works by my crim pro professor from law school, the late Bill Stuntz, and other scholarship that's just skeptical of this whole enterprise.

[00:46:29] [Will] He cites Rachel Barkow's Justice Abandoned, which we did an episode of on the show.

[00:46:34] [Dan] Yeah.

[00:46:34] [Will] Okay. I think we suggested that Portions of this book were going to make their way to the Gorsuch chambers?

[00:46:38] [Dan] Apparently it did. Apparently it did. So really comes out against plea bargaining, thinks it's bad, and consistent with, I think, his belief that the founders' procedures, like the jury trial, were really good. You got to get back to that, and that's just the solution to various bad things.

[00:47:02] [Dan] So setting off his interest in this much larger project, interestingly, at some level, this doesn't surprise me, but he hasn't really done this before. And I know that one of his biggest opinions when he was on the circuit court was he got into a big to-do with, I believe it was with your judge, now Professor Michael McConnell, about the issue that ultimately became Lafler and Frye.

[00:47:31] [Will] Mm-hmm.

[00:47:32] [Dan] Which is, can you make an ineffective assistance of counsel claim for your lawyer, like, not letting you get a plea bargain? And he wrote a dissent, a very angry dissent, you know, saying it's ridiculous to say, you know, ineffective assistance of counsel claims should protect the right to plea bargain. Right.

[00:47:54] [Will] And that's the kind of argument you could imagine cuts either way, right? That could be just a general anti-defendant disposition. Or it could be, as I guess we now know it is, more like—

[00:48:06] [Dan] Pro-jury trial.

[00:48:07] [Will] Right. If a plea bargain or a guilty plea is a form of selling your soul to the devil, then you might just say it's against public policy to ever let you complain that your lawyer didn't help you sell your soul to the devil. They're not supposed to help you sell your soul to the devil. And we don't want to go down the road of making that easier. Apparently.

[00:48:27] [Dan] Yeah.

[00:48:27] [Will] Yeah.

[00:48:28] [Dan] So I don't totally know what he envisions, but this, um, has a very similar flavor to his Slaughter concurrence, where he's like, here's the path, we gotta, we got a lot of work to do.

[00:48:41] [Will] Yeah. Although in the Slaughter concurrence, I feel like there was a little bit more doctrinal specificity about—

[00:48:48] [Dan] Yeah, about what was going to happen. I think he was like, we got to bring back the 7th Amendment and nondelegation and all sorts of stuff. Here, I really don't know what is next.

[00:48:59] [Will] Well, and what provision of law makes plea bargains illegal?

[00:49:03] [Dan] Well, I mean, do you think he's taking the position that all plea bargains should be illegal?

[00:49:07] [Will] Oh, well, it's a little confusing.

[00:49:09] [Dan] Yeah, I mean, you could say that the Bill of Rights commitment to things like the jury trial should maybe make those like a mandatory rule, I guess. I mean, the thing is that they can't— Almost no one can sensibly believe that today because this system just could not function if everybody got a jury trial.

[00:49:27] [Will] Well, I don't see why that's a good argument. I mean—

[00:49:31] [Dan] Pragmatics.

[00:49:32] [Will] Well, no, we would just have to change the system. I mean, if it's the case that we can't currently provide jury trials to all the people we want to put in jail, then we would either need to find a way to have more jury trials, either making jury service more attractive or making jury trials more streamlined, or we have to put fewer people in jail. But those don't seem like—

[00:49:54] [Dan] Yeah.

[00:49:56] [Will] I mean, right, there is— so some people have always argued Article III, which has a jury trial provision that's not phrased as a right, it just says the trial of all crimes shall be by jury. That's how it's been interpreted, or people argued it to be quasi-jurisdictional. You just shouldn't be able to have one. Just like you can't have a case without an Article III judge, you can't have a— except you can. Now here, there are no trials, but maybe that's implicit.

[00:50:30] [Will] Doctrinally, there used to be these cases about— which are some sort of due process cases about retaliatory prosecutions and things like that, where they— If the prosecution threatens you with charges just as a way to try to get you to plead guilty, that would be, of course, bad. And then we have that while pretending it doesn't happen all the time.

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

[00:50:51] [Will] Doctrinally, that would be the easiest path, and he flirts with that as a way to bring it back. And then he makes this one more formalist argument I found intriguing, which is he just says, look, in a lot of cases we've just held waiver of a statutory right is implicitly protected by the statute.

[00:51:05] [Dan] Yeah.

[00:51:05] [Will] Prospective waiver of statutory right.

[00:51:07] [Dan] I guess you just— employer can't say, you know, if you want to work here, you have to sign a Title VII waiver.

[00:51:12] [Will] Right. Or they can make you sign it, but like, the point is Title VII gives you the right, and this private document you signed can't get rid of it.

[00:51:21] [Will] And at least for appeals, you could say that, like, the statute gives you a right to appeal, and you can sort of sign all the agreements you want, but the statute gave the right to you, so it's not enforceable to just say, I hereby waive the statute. I don't know if that would work for— I haven't thought through the statutory rights part of all this. And maybe that's fine. I mean, if you're trying to start a little revolution, maybe you don't need to have totally thought out how far it goes. But I thought it was very interesting, very notable. Yeah.

[00:51:51] [Dan] And he's also— I mean, I think another thing he's trying to accomplish here is suggesting that a lot of stuff Would fit into this miscarriage of justice exception.

[00:52:04] [Will] Yeah.

[00:52:05] [Dan] So he says, this category should include sentences imposing penalties the law reserves for offenses different than those of which the defendant stands convicted, or ones that order remedies that law does not permit. So if the statute doesn't allow restitution for that crime, perhaps mandatory minimum sentence for which the defendant does not qualify. Constitutional errors.

[00:52:27] [Dan] He says, I would think a miscarriage of justice all but certain to arise whenever a sentence infringes a constitutional right that was firmly established. Procedural errors. He suggests that if the court doesn't follow its obligation to give reasons for a sentence, maybe that should be the basis. So I think a lot of things under his view could fit into this category, and that causes a problem.

[00:52:50] [Will] Yeah.

[00:52:50] [Dan] For Justice Kavanaugh, who writes an extremely short opinion.

[00:52:57] [Will] Mm-hmm.

[00:52:58] [Dan] He says, you know, I join the court's opinion in full. The court's exception— court's opinion sets a high bar for the miscarriage of justice exception. Court describes the exception as applying in extreme cases to sentencing errors that are egregious and obvious and that undermine public confidence in the judiciary. I appreciate Justice Gorsuch's thoughtful concurrence, but I respectfully disagree with his understanding of the miscarriage of justice exception.

[00:53:19] [Dan] As I read it, his concurring opinion would set a lower bar for the miscarriage of justice exception than the court's opinion does. In my view, therefore, the concurrence may not be entirely consistent with the court's opinion. In any event, the court's opinion, of course, speaks for itself. Although apparently it doesn't, right? Because he had to write this opinion.

[00:53:35] [Will] Right. Well, so here's the funny thing is the math, right? So there are 3 people in the Gorsuch camp, and there are 3 people in the Kavanaugh camp. And there are 8 people in the majority. So it means there are 2 justices, Kagan and the Chief, who are in neither camp. If they clearly agreed with the Gorsuch camp, they could of course adopt his opinion or put his words in their opinion.

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

[00:54:01] [Will] And if they clearly rejected the Gorsuch camp, they could put this sentence in here in their opinion and say, no, no, no, a word about the concurrence, it's just wrong. That's not what we mean.

[00:54:11] [Dan] Yeah.

[00:54:12] [Will] And so at least one of them must not want to agree with either position.

[00:54:20] [Dan] Or just, you know, like you don't want to resolve some of those cases that aren't before you, right? That seems sensible.

[00:54:24] [Will] As they just not want to agree with that. Like, we know the one thing we know is that there were, you know, there were enough justices in the majority that could take sides and resolve this if they wanted to, and they chose not to take sides. Now, there are lots of reasons you could do that. Like, you have an intermediate position, or you don't know what side you're on, or you know what side you're on, but you don't want to tell people, or whatever. But it makes the whole thing a little awkward.

[00:54:51] [Dan] Yeah. Okay. And then we've got a Barrett concurrence, which is interesting. Does it make sense to circle back to that after the challenge raised by Justice Thomas's dissent?

[00:54:59] [Will] Sure. Yeah.

[00:55:00] [Dan] Okay. So the Thomas dissent, which is lengthy and includes, as always, in your classic Justice Thomas' crim law, crim pro dissent, its own statement of facts reminding us about the bad stuff the defendant did, and just walking through kind of the procedural history a little bit more.

[00:55:19] [Will] Mm-hmm.

[00:55:20] [Dan] But his basic takeaway, which I would say is not exactly wrong, which is that what the majority is doing is utterly law-free and does not at any point, like, explain where this is coming from, which I think is a fair criticism. And so he goes through and he's like, look, for most of American history, and this is true, there was no right to appeal at all.

[00:55:45] [Will] Right.

[00:55:46] [Dan] Right? I mean, the appeals of sentences are, like, a very new thing. And so not obvious why there would be some rule against them. And here we have a knowing and voluntary agreement, and why should we not enforce that? And then, so he kind of tries to reconstruct where this rule is coming from, and his explanations don't make the majority look great, I would say.

[00:56:22] [Will] Why is that?

[00:56:23] [Dan] Well, I mean, so one is— I mean, so first of all, it's not great that the majority is not clearly telling us. What the source of law is, right?

[00:56:31] [Will] Sure.

[00:56:31] [Dan] I mean, you would agree with that?

[00:56:33] [Will] Yes.

[00:56:34] [Dan] And so he says, look, I guess in the briefing, Hunter had made a bunch of arguments sounding in contract principles, like contract law. And the court doesn't go down that path for the most part.

[00:56:46] [Will] It doesn't not go down that path, right?

[00:56:48] [Dan] It goes down that path with respect to the first part of the opinion a little bit, the part about whether the contract was orally modified. But it doesn't really rely on contract principles for the miscarriage of justice exception, I would say.

[00:57:00] [Will] Yeah.

[00:57:01] [Dan] So it doesn't do that. Then it doesn't point to anything in the Constitution, the statute, or in the rules of criminal procedure, identifies no established common law or equitable doctrine.

[00:57:16] [Dan] And then he says, well, the only thing that really explains what they're doing must be the so-called supervisory power over lower federal courts. And this is a very controversial thing, right? And this is something that has been called into question a lot in recent years, including by Justice Barrett. So circle back to her in a second. But this is the idea that the Supreme Court and possibly courts of appeals have some free-floating power to tell lower courts how to do their jobs.

[00:57:44] [Will] Right. That's the principle I alluded to earlier of anything that a lower court can do, the Supreme Court can tell them how to do. The idea.

[00:57:53] [Dan] Yeah. And this came up in the Tsarnaev case a few years ago, where the First Circuit had sort of said to the district court, District of Massachusetts, look, you know, the way you conducted jury selection, like, was not, like, clearly illegal, that we can't, like, point to a constitutional violation or anything, but, like, we think it didn't follow, like, the practices we think you should follow. Therefore, we're going to reverse.

[00:58:19] [Will] Right.

[00:58:19] [Dan] And the court said, you can't do that.

[00:58:21] [Will] Right. And this also, I mean, there was an earlier time, I think, when people maybe even thought the court could do this. Some of the Warren Court criminal procedure revolution could almost be thought of this way. If you weren't sure that you had a constitutional grounding for the exclusionary rule or for Miranda, you'd say, look, we're the Supreme Court, and we really don't like these things. We don't like this kind of evidence. We don't like these kinds of confessions. And then at some point, I think the court was clear that, well, as to state courts, they clearly don't have some general tell you how to do things power.

[00:58:49] [Dan] Yeah. But maybe there's some residual federal court supervisory power.

[00:58:53] [Will] Yeah. Unclear what the basis of that would be, but maybe.

[00:58:58] [Dan] There's different versions of it. There's like, does a district court have supervisory power to set its own rules? Probably yes. Does the court of appeals have supervisory power over the district courts to tell it how to do stuff? Seemingly not after Tsarnaev. Does the Supreme Court have a special relationship of authority with the lower courts to be able to supervise them. Unclear.

[00:59:19] [Will] Right. So I mean, I do think Justice Thomas raises a lot of good questions here, although 2 things. One, I do think the point that we didn't used to have sentencing appeals at all, and you got to remember that, is true. And maybe it is itself a good reason that the disrepute standard is sort of unhelpful, because Was the entire judiciary in disrepute until we developed appeals?

[00:59:44] [Dan] Yeah.

[00:59:45] [Will] But now we do have one. We do have a statutory right to appeal. And Justice Thomas just launches immediately into, well, so obviously waivers should be strictly enforced. Where did that come from? Justice Thomas might have a better answer to the majority than he does to Justice Gorsuch. Because Justice Gorsuch would say, well, who says they're strictly enforced? Why should courts strictly enforce this thing that's not the statute?

[01:00:06] [Dan] Yeah.

[01:00:06] [Will] So that's one thing. And then maybe now's the time, like, then there is Justice Barrett tries to provide a more formalist sympathetic account for what is happening here.

[01:00:18] [Dan] And she cites to her own scholarship.

[01:00:20] [Will] Well, she has to, because she is the leading academic authority for skepticism about the supervisory power of the courts. Yep.

[01:00:29] [Dan] So she cites 2 articles that she wrote when she was a professor.

[01:00:32] [Will] Right.

[01:00:33] [Dan] But she says there is something legitimate, the development of procedural common law.

[01:00:38] [Will] Right.

[01:00:39] [Dan] The latter involves doctrines like preclusion and abstention, which are settled by tradition or emergent consensus.

[01:00:44] [Will] Right. Because you might ask, where does the rule that waived claims should not be heard come from? Where does the principle that if something's been litigated once before, it shouldn't be litigated again? There's a bunch of just procedural common law. The party presentation principle we talked about, where does that come from? Those are all, I think she is saying, a form of procedural common law. One could call it even general law that she thinks courts do have the authority to develop.

[01:01:14] [Dan] And it's interesting though, because I mean, the way she's describing it, it sounds like it's not like judge found general law. I mean, it's in the sense that, at least in the sense that there is It is being developed by judges, right? It's not just—

[01:01:30] [Will] Develop is a great ambiguous word because I think it could be— I think the ideas developing could well be finding.

[01:01:37] [Dan] Yeah. I mean, if you're looking for emergent consensus, it can be something that's evolving, but you're like, okay, enough courts have done this that we think there's an emergent consensus.

[01:01:48] [Will] Well, but also, so in the days when people understood law to be found, rather than made.

[01:01:53] [Dan] Yeah.

[01:01:54] [Will] There were 2 aspects to finding it. And one was something like consensus, like what is the thing most courts do? And the other was more like first principles. It was like, what is the basic principle underlying this area of law that we can extrapolate from?

[01:02:07] [Will] And obviously the second you could get creative with if you tried, but at least the thought was like, if you try to just take it in good faith, you would sometimes just be able to say, well, the basic principle here is blah. And we can now apply that blah to whatever's happening here.

[01:02:25] [Will] So Justice Thomas has a footnote, I think it's footnote 9, where he says— he gives Justice Barrett props. He says, Justice Barrett, for her part, adopts a sounder methodology. But in my view, the common law of waiver principles she invokes cannot justify this decision. First, if it were an act of common law finding rather than policymaking, one would expect to find a more robust tradition of decisions applying a similar rule in similar situations, but there aren't any.

[01:02:53] [Dan] Can the circuit courts create the emergent consensus?

[01:02:56] [Will] Well, I mean, so this is where it gets quite methodological. One of his complaints, later he says, but common law doctrines require rules with identifiable content for judges to apply, not only general principles. Boy, I don't know if that's right.

[01:03:11] [Dan] I mean, Yeah, a lot of the common law is general principles, right?

[01:03:14] [Will] I mean, it is a nice feature of the common law when the general principles are turned into rules so that you can more easily put them on the bar exam, but I don't know that it's true that that's a thing that common law requires. And indeed, it's a thing that people sometimes lamented about the common law, that it didn't always do that. I mean, so I both see why Justice Thomas is unsatisfied with that road, but I don't know that he has a good Principled explanation for why it couldn't be the road.

[01:03:42] [Dan] Yeah. I mean, maybe just everything going on here doesn't have plea bargains, appeal waivers, none of this has sufficient grounding in anything. And so we just have to decide where we're going to draw the lines.

[01:03:54] [Will] Right. But yeah, if you think of this as like, well, we know that as a matter of procedure, you could have a law of actual waiver. If you show up in court and decline to argue things, We often accept those concessions. Every once in a while we don't. That's the party presentation principle.

[01:04:10] [Will] Then it makes sense that behind that, there could be some question about, well, okay, if we have a party presentation principle, can we have an ex ante waiver doctrine? Before you show up in court, sometimes you promise not to argue things, and then we have to figure out, do those promises count, or do you only get to waive things once you get to court? And so that's where we get the rule Justice Thomas likes, that ex ante waivers are often enforceable.

[01:04:30] [Dan] Yeah.

[01:04:31] [Will] But once we've developed that, then it makes some sense. You could say, well, sometimes they're not. And then, I don't know, then we're sort of here in this thicket.

[01:04:43] [Dan] Yeah. Okay. But I'll re-ask my last question. I mean, are you surprised that this gets 8, especially given that there does seem to be these kind of differences of opinion about how far to go?

[01:04:57] [Will] I think at first blush, it is surprising that the opinion has 8. But the more separate opinions you see, the more you might think, well, where else would they go? If you weren't going to be in the 8, would you have to be in the dissent? Because for Justice Kavanaugh to sign on to a sort of total rejection of the Supreme Court's power to make stuff up would be very unlike him.

[01:05:20] [Dan] Yeah.

[01:05:21] [Will] Even for Justice Alito and Justice Barrett to say there's no such thing as procedural common law, or has to be done in these specific ways. It's not obvious that they believe that or should believe that.

[01:05:31] [Dan] Yeah.

[01:05:31] [Will] Now, again, you could say, well, you could go the other way. Am I surprised there aren't 5 votes for the Gorsuch revolution? No. So I mean, that's part of what makes the opinion so interesting and so elegant is, as you— when I first came out, I read the opinion itself. I was like, well, this is interesting, and it's a kind of tricky little question. Okay, fine. Just each concurrence, your eyes just get wider and wider.

[01:05:55] [Dan] Yeah.

[01:05:56] [Will] So the fact that they could sort of walk the line out of this. And at the bottom line, again, at a more realist level, it's not that surprising that many of the justices would like a standard that is something like, well, we're totally fine with the regular regime of people waiving their rights. But we do want to reserve the right to say no if that makes us look bad. You almost—

[01:06:25] [Dan] Yeah, just give yourself the wiggle room.

[01:06:27] [Will] Well, why wouldn't the court want every doctrine to be like that? Yeah. This is the way it works. The rule is do blah unless it makes us look bad, in which case we reserve the right to say something else.

[01:06:37] [Dan] Yeah, which in and of itself can make the court look bad.

[01:06:40] [Will] Exactly. I don't know. What do you think?

[01:06:45] [Dan] I mean, I feel like it doesn't change the law a lot if this was the rule that already persisted in most of the lower courts. I find Justice Gorsuch's opinion intriguing. I don't actually understand, and I would like to learn a little bit more about what his vision would look like, whether it would mean guilty pleas are okay, but plea bargaining is totally unlawful, or whether there's some guardrails on it, or what. What the project looks like.

[01:07:14] [Dan] I generally am kind of sympathetic to courts having some flexibility to recognize kind of evolving common law rules. I kind of like that. I don't know how many cases— I'm interested to see how big of a universe of cases fit into this, which cases count as miscarriages of justice and which don't, who's right in the separate opinions about trying to make that a smaller or larger set.

[01:07:45] [Dan] So I enjoy it. I find it a fun puzzle. And I do admire Justice Kagan's ability to get everybody together for something that seems to have a lot of formalist problems.

[01:07:59] [Will] Mm-hmm.

[01:08:00] [Dan] But maybe it's just because there's not one— Every layer we go down, there seems to be another set of problems.

[01:08:09] [Will] Yeah.

[01:08:09] [Dan] Yeah.

[01:08:09] [Will] It's a very impressive piece of lawyering.

[01:08:13] [Dan] All right. Anything else?

[01:08:16] [Will] No. Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors.

[01:08:23] [Dan] Please rate and review the podcast wherever you get your shows. Website, dividedargument.com for transcripts, blog.dividedargument.com for commentary from the expanded universe of Divided Argument friends and family. store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com. You can leave us a voice message on our website or call our voicemail number, 314-649-3790.

[01:08:54] [Dan] And if there's a long delay before our next episode, it will be because Will has come up with some way to try to turn my predictions into something falsifiable to hurt me on the scorecard.