[00:00:22] [Will Baude] Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.

[00:00:27] [Dan Epps] And I'm Dan Epps. So at the end of our last episode, I recall I predicted there might be a long delay for real because I was going to be struggling to understand fed courts, which I'm teaching out of your casebook. And I think that is one of those predictions that has come to pass.

[00:00:49] [Will] Well, it's true there has been a long delay. Is it true that it's because you're struggling to understand fed courts because of our casebook?

[00:00:55] [Dan] I think that is a contributing factor in the sense that I am, you know, kind of overwhelmed with the fed courts doctrine. There have been some other factors. One factor is entirely attributable to you in that we sat down and had a recording session on the calendar, did all the prep, good to go, and you had a series of technical snafus and could not actually record.

[00:01:21] [Will] Indeed, indeed. Technical snafus that despite hours of work culminated in my throwing out the sound mixer I'd been using for the entire lifetime of this podcast and buying a new one.

[00:01:31] [Dan] We got you a better one though.

[00:01:33] [Will] I don't know, it's fancy and has lots of bright lights, which make me nervous.

[00:01:37] [Dan] I think it looks cool. It looks very professional. So that one wasn't my fault.

[00:01:42] [Will] Yeah.

[00:01:43] [Dan] And then we almost had to cancel today because you were the victim of a violent crime committed by yourself. You reported right when I opened up the stream for us to chat that you had punched yourself in the face. Can you just give me a little bit more context on that?

[00:02:02] [Will] So I have this—

[00:02:03] [Dan] You appear to be bleeding.

[00:02:05] [Will] A little. It's fine. You should see the other guy. I have a water cooler in my office and I was changing the water beforehand and one thing led to another.

[00:02:20] [Dan] Okay, well, let me know if you need to— if you're feeling dizzy, we need to stop at any point. I think we can do this.

[00:02:28] [Will] It's good we record this podcast remotely so nobody's blaming you for this, Dan.

[00:02:33] [Dan] Well, we'll see. Okay, so we're recording. You're not so physically injured that we can't do it. Your technology seems to be working. And luckily, stuff has happened, but because it's still the beginning of the term, this is the first episode of season 7, if you can believe it. We haven't missed any merits opinions. There haven't been any of those. There's been a fair bit of interim docket activity that we're going to catch up on.

[00:03:05] [Will] Well, there is an opinion on the Supreme Court's website, so it's called a per curiam opinion. That came out of the interim docket cases. Yeah.

[00:03:13] [Dan] I don't know if we— I think we wouldn't call that as part of the merits docket, but this is one of those cases where something makes its way from the interim docket to the opinions of the Court page, which it seems like is a function of length, or maybe it's a function of—

[00:03:34] [Will] It's, I think, mechanically a function of whether they decide to write per curiam at the top of whatever they're doing, which is correlated to length. Like, at some point the explanation gets long enough that it's clearly a per curiam rather than an order.

[00:03:47] [Dan] Yeah.

[00:03:48] [Will] I think there are times that the per curiam is short and times that the order is long, but—

[00:03:53] [Dan] Is it somehow— does it turn on whether there's a long dissent? I mean—

[00:03:57] [Will] No. Well, they definitely— you can definitely have just an opinion with a long dissent. And the per curiam on the page has no long dissent. It just has Sotomayor and Jackson would deny the applications. So there's clearly some— and there was briefly a period this summer, I think this one on the website, FCC versus Brown, maybe one of them, where there were maybe 3 interim docket rulings in a row that were done as per curiams. And so there was briefly a theory this was maybe a new thing, but it's not a new thing.

[00:04:30] [Dan] Okay. Well, we're probably not going to solve that mystery today, but we will talk about that opinion. Let's catch up on some odds and ends though.

[00:04:39] [Will] Yeah.

[00:04:40] [Dan] Did you have anything in the mailbag? We've gotten a lot of stuff in the mailbag over the last month plus, some great emails, but I think we're not gonna be able to get to most of them.

[00:04:52] [Will] I think that's right.

[00:04:55] [Dan] Okay, so odds and ends. Suncor. This is one of the big cases this term. It was the first— I believe it was the first argument of this term. We had a late recusal by Justice Alito.

[00:05:17] [Will] Yeah, this is interesting.

[00:05:20] [Dan] Yeah. And so Justice Alito, I think, has been the biggest kind of recuser in recent years because, as I understand what's going on, his wife inherited a bunch of stocks. She has not divested herself of those individual stocks. And so there are, you know, they're big companies, and there's, you know, with some regularity, those companies have business before the Court forcing Justice Alito to recuse. As I understand it, Suncor, the party, you know, is an energy company. His wife does not own stock in that company, as I understand it, but owns stock in other energy companies that might be affected by a ruling in this case. And that caused him ultimately to decide out of an abundance of caution that he should recuse. He spoke to the press about this a little bit, and my takeaway from his remarks were basically like he would just as soon not be in this situation, but I think he said, my wife prefers to own individual stocks, and perhaps she has been unwilling to divest herself, kind of putting himself in this position.

[00:06:32] [Will] Yeah, that was how I read it.

[00:06:34] [Dan] Yeah. Which is a bit awkward. And it seems like another instance where maybe Justice Alito's wife has caused him a little bit of embarrassment after the flag incident. I'm sure everybody remembers the upside-down flag. I remember exactly what his statement was. He said something like, my wife is fond of flags. I am not. Do you remember that?

[00:07:00] [Will] I do remember that. Yes. Not to let us get devolved into SCOTUS ethics debates, which will never end, but people have pointed this out. This is just one of these interesting tensions in judicial ethics. Of course, we have to have rules that take account of not just the justices, but their spouses who are like— so we couldn't have a rule that just said, well, we totally ignore them. But of course, especially in the 20th and 21st century, those spouses are independent people who get to make their own choices about a range of things. And so that could be complicated.

[00:07:39] [Dan] Yeah, it creates a very awkward situation if, as one could surmise, it's far from certain, that Justice Alito would prefer not to be in the situation, but his wife is not willing to take the steps to avoid the recusal.

[00:07:55] [Will] Right.

[00:07:56] [Dan] It is awkward.

[00:07:57] [Will] Right.

[00:07:58] [Dan] But I mean, it is a real problem, right? Because he is having to step out with some regularity. And in this case, it's not inconceivable that the case could lead to a evenly divided Court otherwise.

[00:08:16] [Will] So there is some question because I think, didn't he recuse from some much earlier stage of this litigation?

[00:08:25] [Dan] And then didn't, is my understanding.

[00:08:27] [Will] And then unrecused.

[00:08:28] [Dan] Yeah.

[00:08:29] [Will] And then now we have the re-recusal, which— now I don't know if the earlier recusal and unrecusal reflected some actual, he sold the energy stock he had or something.

[00:08:42] [Dan] I don't know. I mean, it does strike me as if the reason he is recusing is not that he owns stock in, or indirectly has an interest in stock in this company, but has an interest in the broader industry.

[00:08:56] [Will] Right.

[00:08:57] [Dan] That's problematic because it might suggest that there's not another case that could come forward where he could be— to not have a recusal.

[00:09:06] [Will] Right.

[00:09:06] [Dan] Right. Because so in the Harvard and UNC affirmative action cases, Students for Fair Admissions, Justice Jackson was recused from the Harvard case because she had been on the Harvard Corporation, but it didn't really matter because basically the same issues were presented in the UNC case. And so she didn't do the argument for Harvard, but then was able to write a dissent and just a little footnote. But to the extent that—

[00:09:33] [Will] No, there's not. I mean, that one also does— I liked that one because it was clear how fictional the sort of recusal rules are. And there's a majority opinion in a case called SFFA v. Harvard that has a dissent from her attached that is just allegedly not attached to the part of the majority opinion that she's recused from. Which is, I mean, yeah, it's fine.

[00:09:59] [Dan] And he also recused, he had to recuse, and he did it very, very last minute in a case this past term, Chevron v. Plaquemines Parish.

[00:10:08] [Will] Oh, yes. Right.

[00:10:09] [Dan] And I also don't totally understand why the timing came out. So I'm looking back at that. The argument was on January 12th of this year. On January 8th, there was a letter that came out from the clerk that said, I'm writing to inform the parties that Justice Alito has determined that he will not continue to participate in this case because of a financial interest in ConocoPhillips, the parent corporation for Burlington Resources Oil and Gas Company. Justice Alito initially decided not to recuse because on June 2nd, Burlington was dismissed from— as a petitioner after Burlington advised the Court it was withdrawing. Later briefing, however, noted that Burlington remained a party in the district court. Okay. I mean, that makes sense if that's something that—

[00:10:54] [Will] Yes.

[00:10:55] [Dan] Is only discovered later.

[00:10:58] [Will] The timing of this one has caused some people to worry that it could also just reflect a sense of whether his vote was needed. Hmm. Now post-argument, I'm not sure this would be right, but you, you know, you could—

[00:11:09] [Dan] That he like checked in with the Chief, saw whether they needed his vote, and then—

[00:11:12] [Will] Yeah, you could worry that a justice would think, look, if it's gonna be 5-4, I'll— if it's gonna be 5-4 and I don't have to recuse,

[00:11:20] [Dan] Yeah.

[00:11:21] [Will] I'll stay in to make sure we can do the right thing. But if it's gonna be 6-3 and so you don't need my vote, then I'd rather recuse and avoid the problem. And that seems like not a good way to handle recusal.

[00:11:31] [Dan] Yeah. And this time, the letter that was sent to the parties had no explanation in it. Just said, Dear counsel, I'm writing to inform the parties that Justice Alito has determined that he will not continue to participate in this case. That's it.

[00:11:45] [Will] Huh. Okay. Well, we had argument. They might need his vote.

[00:11:50] [Dan] Yeah. I mean, it seems like it's a pretty messy case, right? I mean, in that there's a seemingly somewhat tough jurisdictional issue about whether the Court can even review the order under review. And then the underlying legal issues seem somewhat challenging and complicated. And it seemed from listening to the argument, you know, where the petitioner is a friend of the show, Kannon Shanmugam, ably representing his client, that the Court was kind of struggling with it. And that there's a bunch of kind of big constitutional principles, but it's maybe kind of hard to pin down exactly the right place to anchor the case. The question is whether federal law precludes state law claims seeking relief for injuries allegedly caused by the effects of interstate and international greenhouse gas emissions on the global climate.

[00:12:49] [Will] Yeah.

[00:12:50] [Dan] That's the kind of merits question. I don't know if you can give us a capsule of the jurisdictional question, which I know you've been thinking about.

[00:12:57] [Will] The jurisdictional question is whether the Colorado Supreme Court remand in this case is its own thing in a way that makes it final enough for the Supreme Court to have jurisdiction.

[00:13:09] [Dan] Yeah. I mean, because there— so as I recall, I mean, there's a sort of basic principle that the Court is not supposed to review interlocutory state court rulings. But isn't that riddled with exceptions?

[00:13:23] [Will] That is riddled with exceptions, with functionalist exceptions, indeed. And maybe also hastened by the fact that it's not quite clear anymore why, like, what the purpose of that rule is. Like, it's clearly the rule. It's clearly a difference. I guess it has some sort of federalism principle that, you know, with federal courts, the Supreme Court can be kind of micromanaging them the whole time. It's a quasi-supervisory power thing. But with state courts, you got to let them do their business and only deal with them at the end.

[00:13:54] [Dan] But I mean, it doesn't seem like something that would be required by Article III. I mean, it's an order, right? It's part of a case resolving a federal question. Why would there be some rule that the Supreme Court just can't review that?

[00:14:10] [Will] I don't think there's a— I don't think, although, yeah, I don't think there's any reason to be required by Article III. I think it's just flows from the statutes.

[00:14:17] [Dan] This is just a gloss on the jurisdictional statute.

[00:14:20] [Will] Well, I know, I think it's this— I mean, I think this— the jurisdictional statutes themselves draw this distinction explicitly, and then the exceptions are sort of read back into the statute. But without knowing, you know, whether the exception serves any purpose or whether this thing serves any purpose, it's hard to know how worked up to get about the exceptions. And of course, you know, especially as we live in a world of interim relief and quasi-interim relief and everything else, a decision, I mean, the Supreme Court has rightly said a decision could be final as to the thing that federal law cares about, even if it's not final as to things that state law cares about.

[00:14:59] [Dan] Yeah. I mean, the statute says final judgments or decrees rendered by the highest court of a state in which a decision could be had.

[00:15:06] [Will] Right.

[00:15:07] [Dan] But I mean, any given decision, even if it's, you know, interlocutory, is like final with respect to that decision, right? I mean, it is a judgment. The judgment is just remand.

[00:15:20] [Will] Well, but I don't know that a remand is final as to—

[00:15:23] [Dan] It's final as to that appeal.

[00:15:26] [Will] Final as to— maybe. I mean, you could have an opinion that's not, that's like a remand without— you know, a remand without prejudice or a remand with the appeal remains open or a partial remand or, but yes, I mean, you can define finality in lots of ways. I mean,

[00:15:43] [Dan] Yeah.

[00:15:44] [Will] It's every time somebody seeks Supreme Court review, it's because they feel like they're not getting what they want out of the state court sufficiently that they now think they need the Supreme Court to intervene. So you can define whatever it is they want out of the state court in a way that it's final enough as to, right?

[00:16:01] [Dan] Yeah.

[00:16:02] [Will] Like, there's always some reason we call the Supreme Court now rather than a little bit earlier. But anyway, this turns on a kind of earlier case that already made a kind of exception to this, and sort of, and then how this interacts with intricacies of state practice, right? So if you, if the way you get a state appeal in the state system is to bring an original proceeding in the Colorado Supreme Court, does that make the Colorado Supreme Court proceeding its own proceeding with its own final judgment or not? Or do you need to use one of the other exceptions? Justice Thomas seemed like the person most concerned about this at argument from my read.

[00:16:38] [Dan] Mm-hmm.

[00:16:40] [Will] I, you know, I don't know whether he's sufficiently concerned about it to say there's no jurisdiction or, and what he would do if 7 justices think there is jurisdiction, but he doesn't. That always produces an interesting question of whether you stick to the judgment of dismiss for lack of jurisdiction or whether you have a sort of conditional ruling or, so. And then we get to the merits, which the one thing you said, I think this case is very interesting and tricky. There's one way in which it's straightforward in that it's not a case where there is a whole bunch of legally, clearly legally relevant material that's hard to master. Like, in the way that, like, the— even though the history in the birthright citizenship case, there was just like a lot of history, right? And so you had to like really get into the weeds once people started throwing around, you know, Calvin's Case versus, you know, whatever. This— it's— there's not a lot that's like clearly on point. There are kind of other— there are like a lot of things that then people can't agree with that are on point, right? Mm-hmm. So is this like federal preemption or not? Is this, you know, what constitutional principle are we applying here? Is this a case for, you know, resurrecting various unwritten backdrop rules? It's just, it's, yeah, it's more of a big open-ended, like,

[00:18:04] [Dan] Yeah,

[00:18:04] [Will] how does the Constitution deal with this area of law?

[00:18:07] [Dan] Yeah. And I guess, you know, there were some— there's cases in the background there that I had not really been familiar with that sort of say, there's this overarching principle that certain things like water are just for the federal government.

[00:18:25] [Will] Or at least not for the state government.

[00:18:27] [Dan] Yeah. So I wasn't familiar with that line of cases. So I don't know. I mean, it does seem like a case where if it comes out in favor of the energy company, I imagine it will be fodder for people to criticize the conservatives for finding unenumerated, vague constitutional limits on things that conservatives don't like.

[00:18:55] [Will] I was certainly amused that I think several times it sounded like the petitioners thought their best case was Franchise Tax Board v. Hyatt, a case about interstate sovereign immunity, where the Supreme Court said that the Constitution does guarantee interstate sovereign immunity.

[00:19:12] [Dan] Which you had a thing about that. You disagree with that, right?

[00:19:16] [Will] Exactly. So Steve Sachs and I filed an amicus brief in that case saying, you know, sovereign immunity is a real thing, but it's normally a sort of backdrop rule of general law. And there's no part of the Constitution that explicitly protects interstate sovereign immunity from abrogation in the way that Article I protects it from federal abrogation, et cetera, et cetera. And so that actually makes it a tricky case. It might be that a state can abrogate it, but then maybe another state can retaliate by not respecting its judgments and so on. You can't just assume that because it's a deeply rooted interstate norm that the Constitution forces states to respect it. And the Supreme Court did not agree with, acknowledge, or even appear to read anything in our amicus brief. Which is fine.

[00:20:02] [Dan] Somebody read it.

[00:20:05] [Will] I— anyway.

[00:20:08] [Dan] Clerks must have read it.

[00:20:09] [Will] I don't know. I don't know.

[00:20:13] [Dan] I think I read it at the time.

[00:20:15] [Will] We were not quite as notorious troublemakers at the time, so maybe somebody read it.

[00:20:19] [Dan] You've been notorious for a very long time.

[00:20:22] [Will] Now they know better. And we later wrote an article about the 11th Amendment in part inspired by some of the things we'd gone into in writing the brief and so on. You know, I think it was understandable that the Supreme Court's reaction to, here's a bunch of weird unwritten law stuff involving multiple states that it doesn't really seem like the states get to mess with, is to say, oh, that's constitutional structure, and let's create a constitutional rule out of it. And it's amusing to me that that's the best precedent for what Suncor wants to point to here. Yeah. But it's not a bad precedent. I mean, if interstate sovereign immunity principles that were kind of general law or, you know, general principles of jurisprudence, et cetera, now have to become constitutional structure because that's the only intellectual box we have left for it. You know, it wouldn't shock me at all if some sort of territoriality proportionality principle will get the same treatment. Mm-hmm. But it did seem like the justices were at least aware that was not an obvious fit and trying to figure out what to do with it.

[00:21:25] [Dan] So we will see. So some other stuff. Speaking of recusals, we had another set of recusals, not just one recusal, but we actually had 4 recusals in one case, which is a problem because when there are 4 recusals, the Court loses a quorum. The Court needs 6 justices for a quorum. This is a case called BMG Rights Management versus Vetter.

[00:21:58] [Will] Mm-hmm.

[00:21:59] [Dan] And it's a case about copyright law. And the reason that there ended up being all these recusals is that one of the petitioners, not the only— there were multiple parties in the case, BMG Rights Management, I understand it, I think, owns or is owned by the company that owns the publisher of 4 of the justices' books.

[00:22:26] [Will] Yeah, I thought it owns Random House.

[00:22:30] [Dan] Yeah, Penguin— Random House owns Penguin. Penguin and Random House are the same thing, actually. Yeah, that's the confusion. So they are owned by the German conglomerate Bertelsmann. Mm-hmm. And BMG is also owned by Bertelsmann. So they're 2 entities that are owned by the same company. And that's Justices Sotomayor, Gorsuch, Barrett, and Jackson. So I don't know what to think about that. I mean, one thing that kind of puzzled me was why the parties would go ahead and bring the petition when this could have been anticipated, because a similar thing happened in May 2025.

[00:23:26] [Will] Yeah.

[00:23:27] [Dan] In another copyright case where Bertelsmann was involved.

[00:23:31] [Will] Yeah.

[00:23:32] [Dan] And so I don't totally know why BMG would have— because BMG was the one trying to get review and is the one who's not going to be able to get review because of the lack of a quorum.

[00:23:45] [Will] And this is a paid petition with a fancy lawyer on it.

[00:23:48] [Dan] Yeah, with Paul Clement, right? I mean, and so I'd love to know what the kind of strategic considerations were there because it seems like this was dead on arrival. Also kind of interesting that 4 of the justices are using the same publisher.

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

[00:24:03] [Dan] Do you have more to say about that?

[00:24:05] [Will] Yes. So on the strategy question, I looked, it doesn't seem to be addressed in the petition. So, because you might think you just have some theory of writing around this. And it is. So there's a statute, 28 U.S.C. 2109, that says if a case is brought to Supreme Court review and they don't have a quorum, the majority of remaining justices have to decide whether the case could be heard and determined at the next ensuing term. And if not, then it's affirmed. So sometimes, you know, the Court doesn't have a quorum because they're like, 2 people are recused and 2 people are vacant or something. They could hold it over. So you could imagine they had some theory like, you guys should realize you want this case, that one of the justices can sell or alienate your royalty stream or something, you know, like, you know, so you can imagine that. I would think if that was your theory, you just go ahead and like, you know, Paul Clement, you just go ahead and say this in the petition. Like, I realize that it's a weird— or whatever, or at least by the time of the reply. So it could be. It could also be that there will be another vehicle one day that will present this case, and that having done this will make the next vehicle better. Like, it won't be BMG.

[00:25:16] [Dan] Mm-hmm.

[00:25:17] [Will] Like, BMG now needs to pay some random YouTube streamer in the Fifth Circuit or some other property rights holder who has this issue to just seek cert for the next case applying it. And that even though this was recused, it got enough attention that'll make people interested or something. But that's also weird. So I agree, it's a weird one.

[00:25:43] [Dan] The other thing that's interesting about it is if you look at the parties to the proceeding, it appears that the petitioners in the case actually went and bought the copyright interest and moved to substitute themselves so that they could file this petition.

[00:25:58] [Will] Huh.

[00:25:59] [Dan] Right after the Fifth Circuit's mandate. And that makes that particularly weird because this was multiple companies, BMG, Essential Music Publishing, which I think is part of Sony, Warner, et cetera. And then, like, but if BMG had just sat out of that process, because I think that they, you know, these companies wanted review of this issue, not just, you know, that's why they got involved in the case. They want a review of the issue, not the case itself.

[00:26:27] [Will] Yeah.

[00:26:27] [Dan] Like, then this wouldn't have been a problem.

[00:26:30] [Will] If BMG hadn't bought into the issue.

[00:26:32] [Dan] Yeah.

[00:26:32] [Will] Yeah.

[00:26:34] [Dan] It's very, very puzzling. I mean, I'm told that the Fifth Circuit's decision in this case is kind of wild and it's a real problem for some of these companies. But I mean, yeah, if I were one of the other petitioners, I'd be kind of annoyed.

[00:26:48] [Will] Right. Yeah. Should we have a rule that justices aren't allowed to publish books with a publisher who has published the book of 2 other justices?

[00:27:01] [Dan] I don't know. I mean, it does make me wonder. There must be a lot of consolidation in the publishing industry, which I believe to be the case, that if they're all going to the same publisher. I mean, I think that they're on different imprints. I think that the conservative justices use a conservative imprint, right, under Penguin Random House, which is itself kind of unfortunate that we have to have these ideological publishing imprints for different justices. Yeah, I mean, it does seem like a problem. It also, this one seems like if they had just decided that it was better to just go ahead and hear the case, I wouldn't be super worked up about it because I mean, it's not totally clear to me how this would directly— I don't think it would affect their royalties. It's just not totally clear to me that the justices actually have a direct financial interest, even if they have a financial relationship with the party.

[00:28:00] [Will] Well, and even if their interest is direct somehow, it's in some ways more plausible in this case that they're not going to care about it that much. I mean, I don't know how strong the interest is. I mean, this is one of the classic complaints about the recusal rules is that on the one hand, there's a whole range of obvious ideological and political interests that just aren't really covered by the recusal rules, except maybe under the appearance of impropriety. And yet, there are others that, because they're traceable to a dollar or a concrete relationship, we get very rigid about. And maybe it's a better world that we're very rigid about that because— keeps us, you know, far afield of corruption. That would be very bad, but it's funny.

[00:28:45] [Dan] Yeah.

[00:28:45] [Will] There is also the statute that does this. It has a solution for this problem that doesn't work anymore. So the first half of 28 U.S.C. 2109 says that in cases brought by direct appeal from a district court, the Chief Justice can then order it sent to the court of appeals from the circuit where that district was to be heard and determined by that court, either sitting en banc or specially constituted and composed of the 3 circuit judges senior in commission who are able to sit. And the decision of that court shall be final and conclusive.

[00:29:20] [Dan] Mm-hmm.

[00:29:21] [Will] And this was famously invoked in, I think, the Alcoa antitrust case where a bunch of the justices were recused. And so, and then ultimately was decided under this provision by the Second Circuit. And by operation of law, the decision of that court was final and conclusive and treated as a kind of a quasi-Supreme Court opinion.

[00:29:41] [Dan] Must be kind of fun for the circuit judges once in a while to get to be the Supreme Court.

[00:29:46] [Will] Yeah. So you could— I think I saw Steve Vladeck float this on his Substack— you could consider amending the statute to create some kind of provision like that for certiorari. If the majority of the justices are recused, there's some— we create a court of the chief judge of every circuit or the multi-circuit lot or something to get a—

[00:30:07] [Dan] Although for practical purposes, I mean, if the solution to the old situation when it was a direct appeal from a district court was to give it to a circuit court, I mean, here it's still coming from a circuit court, so it's the same amount of review.

[00:30:22] [Will] Yes.

[00:30:23] [Dan] That was in that situation, but maybe there's some case for having a different circuit or different circuit judges review the circuit. But it is a little weird to say that a judgment of the 5th Circuit needs to be reviewed by other circuit judges. I mean, they're all on the same level in the hierarchy.

[00:30:40] [Will] Right. I mean, this was the era when 3 district courts went direct to the Supreme Court. So it was a little— I mean, yes. So I agree. You could just say it's fine and we live with it. You could— I mean, I think the— I've seen this provision invoked before. The only time I remember it being invoked are these cases where usually it's a frivolous petition where somebody sues God, the president, and all the Supreme Court justices and their families.

[00:30:59] [Dan] It's the rule of necessity, right? If everybody's recused, nobody's recused.

[00:31:03] [Will] Well, sometimes the Court, I think, just invokes 28 U.S.C. 2109 and decides— I think some of those cases get dismissed by 28 U.S.C. 2109. It's like, because this person has sued all the justices and were recused, we—

[00:31:16] [Dan] Yeah. Although I remember I've seen ones where like, for some reason, 7 justices get sued.

[00:31:21] [Will] Yeah.

[00:31:22] [Dan] And then the other justices deal with it. Maybe that's right.

[00:31:24] [Will] Maybe it's all 9.

[00:31:25] [Dan] I think if it's all 9, I think that's rule of necessity.

[00:31:28] [Will] Right. The rule of necessity is that everybody's recused, nobody's recused. But right, if only 7 are recused, then 2 are not recused, so then there's not a quorum.

[00:31:36] [Dan] And it's like, you know, Justice Barrett and Justice Jackson determined there was not going to be a quorum.

[00:31:40] [Will] Yeah. The other— people occasionally talk about in various, as part of various term limit schemes, one thing you can do with the kind of retired quasi-senior status judges is give them eligibility to sit in recusal cases. And that also could be a general rule that if a justice is recused, the retired justices who are still, any retired justices who are still actively hearing circuit cases can come back from the bench. Mm-hmm. I don't know if Justice Breyer is still doing that. I think Justice Kennedy is not, but you could imagine a rule that, like, in any case, Suncor or this one, if we lose— either a rule, if you lose somebody, you're on the verge of losing a quorum, or any case where somebody recuses, you know, don't worry, Justice Breyer is waiting in the wings. It'd be interesting.

[00:32:27] [Dan] All right. About books, 2 related book things. We were just talking about Justice Alito. Justice Alito's book, So Ordered, has come out since last we recorded.

[00:32:42] [Will] Mm-hmm.

[00:32:43] [Dan] I read that book. I wrote an essay sort of about that book, but not really. I was invited by the Harvard Law Review to write a kind of review essay about the phenomenon of books by Supreme Court justices, which I have now posted on SSRN. It's called Reading the Justices' Books. Where I kind of look at this larger phenomenon and talk about the surprisingly long history of justices publishing books and justices trying to enrich themselves by publishing books, going back to basically the dawn of the republic.

[00:33:16] [Will] You have this bit about John Marshall that I especially love.

[00:33:19] [Dan] Yeah. He published a 5-volume biography of George Washington, and apparently he had been enticed to do this because they convinced him he was going to make $100,000, which was an absurd amount of money. It didn't sell very well. The first volume doesn't mention George Washington, which is a problem. He later— the justices now, some of them write children's books. He actually did a children's version of his book.

[00:33:45] [Will] Yeah.

[00:33:46] [Dan] There's a lot of just fascinating stuff there. But then I try to— my larger claim is, look, these books are, for the most part, they're not really going to stand the test of time as books, but they're super interesting because they tell us, they give us a snapshot of the Court and the justices at any given moment in history. We should try to read them with that in mind. And then I try to kind of draw some big picture lessons about what the current crop of books tells us about this Court, where we have, you know, 6 justices have written books, a 7th, Justice Kavanaugh, apparently has one in the works. Mm-hmm. And, you know, what does that teach us about the Court? And I think I end up being kind of critical of everybody, although I'm not, you know, I'm generally actually enthusiastic about the idea that justices should write books. I think you read it and you were like, you should be even meaner. I don't know if I've executed that yet.

[00:34:42] [Will] You could still step it up a little bit, but—

[00:34:45] [Dan] I can always be meaner.

[00:34:46] [Will] Well, I mean, there's something funny a little bit about like, well, it's not so bad that they write books and we should read them because they tell us about the Court, but what we learn about the Court is not so great. Yeah. I mean, it's not an unfair combination of—

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

[00:35:01] [Will] I don't know which of these books I was reading, one of these books around graduation last spring. And I was, you know, talking to various parents and students at graduation and, you know, I mentioned I was reading, I don't remember which one of these books. And this person asked me, well, is it good? And I was just so flummoxed by the question because I was like, well, good at what? Or like, what would be the right, even the right metric to judge the books by, right? I mean, you could ask, like, are they good? Like, if it was a book by a non-justice, is it a book that you would, you know, that would stand the test of time and you would keep around? Like, you know, some of Story's treatises we'd read even if Story hadn't been appointed to the bench. Maybe very few of the books pass that test, but they could be good as justice books. Like, this is the book that tells the story about the Court I want told, or, you know, or compelling as narratives like the Sotomayor and Thomas memoirs. So.

[00:35:56] [Dan] Did you know that until you read my piece that Rehnquist had written 2 novels that were not published?

[00:36:01] [Will] I did know that. And in fact, I and another law professor, our former law professor, spent a little time at Stanford trying to see if they were in the Rehnquist papers.

[00:36:11] [Dan] Are they?

[00:36:11] [Will] At Hoover? I think not. Or at least we've not been easily— they were not easily able to be uncovered in the Rehnquist papers at Hoover.

[00:36:18] [Dan] It's super interesting. He seems like he was getting kind of bored with his role as a justice and he kind of convinced himself he could be a literary type.

[00:36:27] [Will] Yeah. Well, it's interesting because he clearly liked to write, but also he didn't like to write majority opinions. Or I mean, he liked to write them short.

[00:36:37] [Dan] Yeah. He liked to have not so much reasoning.

[00:36:41] [Will] So I think Rehnquist is overdue for a kind of reputation re-upping, but I think Rehnquist's restrained style to Supreme Court majority opinions, when I was a young, arrogant law student, I thought was the most intellectually irresponsible and terrible thing, that he would take out all the reasoning. And this was just like, you know, this is why Scalia was the real conservative and Rehnquist was, you know, whatever, bad. In my maturity, as I watch so many opinions written to go viral on Twitter or wherever else, yeah, I appreciate it more and more. And I guess I appreciate it even more knowing that Justice Rehnquist probably had a lot to say. He probably would've had a good time writing long opinions.

[00:37:23] [Dan] Yeah. I mean, he's a smart guy.

[00:37:25] [Will] Right. Thoughtful, lettered.

[00:37:28] [Dan] I mean, I think that the opinions have gotten too long. I think that they are often too sweeping. And there is something to be said for saying less, being a little bit more minimalist, being a little bit more prudent. I, you know, I kind of like that.

[00:37:44] [Will] Yeah, I think I've said this before, I think, so I'm not going to claim this is my first time saying it on the podcast, but my pitch to the conservative justices would be they have to remember that if they write long opinions, they're at the mercy of casebook editors who will tend to be dominant on the left. And so they should ask themselves, you know, given that most law students will be reading their opinions in edited form, whether they want to be edited by their enemies or whether they want to do their editing themselves.

[00:38:08] [Dan] Yeah,

[00:38:09] [Will] I guess they could just release abridged versions of their opinions also, would be another option. Like, here's the full opinion and here's the children's edition, like Marshall.

[00:38:18] [Dan] But yeah, I mean, it is interesting how short Justice Holmes's opinions were, even though he's a brilliant guy, obviously loved writing, wrote books. But he really wanted to keep them short, and in a way where that wasn't the norm necessarily. You look at some of these old opinions, I mean, he has these very short dissents that are partnered with quite long opinions by other justices.

[00:38:43] [Will] Right. And I think in the old age, one reason for an opinion to be long is that we were in an information-light environment. So if there were a bunch of precedents you wanted to discuss that were not well-known Supreme Court precedents, you might have to blockquote them in your opinion for anybody to have any clue what you're talking about. So you see some old opinions that are just long because they consist of block quotes on principles of equity from 10 different courts, and they then synthesize them, which is still, I think, lazy writing, but you can at least see a reason. Lawyers are going to need these principles of equity, and I'm going to put them in my opinion so everybody has them. But you don't have to do that anymore.

[00:39:19] [Dan] Yeah.

[00:39:22] [Will] Okay.

[00:39:23] [Dan] So we have limited time. Should we actually talk about some substantive things the Court has done rather than failure to do things because there weren't enough justices who had no financial interest.

[00:39:35] [Will] Sure. Well, so the most interesting thing we were going to talk about before I ruined our last recording session was— and boy, this is old news now— but was the Supreme Court's response to U.S. Postal Service v. California.

[00:39:52] [Dan] Mm-hmm.

[00:39:53] [Will] Right, which was, we talked about the first of these 2 cases, saga over the president's executive order to save the midterm elections, but the Court found the challenge to the executive order not ripe because we had to wait and see what the Postal Service was actually going to do. Shortly after that opinion, and by the time we recorded, we knew what the Postal Service was going to do and knew that if it actually went into effect, it would be very hard for states to comply with it and for us to actually have mail-in ballots and midterm elections. And then on September 14th, 2026, the Supreme Court, I guess, again failed to do something, but in a more interesting way, or it denied something.

[00:40:33] [Dan] Yeah. And I'll say that when we recorded on the prior order, you predicted that the Court ultimately would not let the president do what he was trying to do.

[00:40:42] [Will] Yes.

[00:40:43] [Dan] Right. You predicted that. And then I predicted that at least one justice would say the president could do what he wanted to do. And both of those things were true.

[00:40:52] [Will] Both those things were true. And I think I said that one interesting question was whether the problem with the order was going to be on the merits, where they'd say, this is something the Postal Service can't do, or whether they would say, if this were not right before the midterm and incredibly disruptive, maybe you could do it, but you can't do it now. And so the Court said little, but it said both. The Court issued a, not a per curiam, but a 3-sentence order that said the application for stay is denied. The government is unlikely to succeed on the merits of its challenge to the district court's preliminary injunction, period. And the equitable factors applicable for obtaining emergency relief from this Court do not favor a stay. And then Justice Kavanaugh concurred to say, I think there is a fair prospect that the government's right on the merits, but applying the rule in the 2026 elections would be arbitrary and capricious in violation of the Administrative Procedure Act because state and local election officials did not have sufficient time to reasonably implement the rule. So that's closer to the equitable factors problem, although it's sort of described as a merits problem. Yeah. And then Justices Alito and Thomas fulfilled your prediction by dissenting and saying, yeah, this is fine.

[00:42:03] [Dan] Now, can I just parse this a little bit more?

[00:42:06] [Will] Yeah.

[00:42:07] [Dan] The per curiam non-per curiam said the government is unlikely to succeed on the merits of its challenge to the district court's preliminary injunction.

[00:42:17] [Will] Yes.

[00:42:18] [Dan] Does that mean that the government is unlikely to succeed on the merits of the legal issue, or is the government unlikely to succeed in overturning the preliminary injunction for some other reason related to the preliminary injunction factors, right? Like, are there 2 layers of equitable factors in this case? There's like the first layer, which is the equitable factors in terms of getting a stay, and then there's the like second layer about whether the government is going to be able to overturn the PI?

[00:42:49] [Will] I think so. Yeah, I think the first sentence that I called the merits sentence could encompass not just the merits, but the district court preliminary injunction factors.

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

[00:43:00] [Will] And I think even the merits also could encompass both sort of the lawfulness of the rule, but also per Justice Kavanaugh, the lawfulness of applying the rule right now.

[00:43:13] [Dan] Yeah.

[00:43:13] [Will] Because again, Justice Kavanaugh, I think we call it a merits factor, an APA violation to apply the rule now. So even the sentence that the government is un— the sentence that the government is unlikely to succeed on the merits could encompass a wide range of views and probably does.

[00:43:32] [Dan] And I imagine there might be an opportunity for us to learn the larger answer to that question at some point, right? I mean, because—

[00:43:40] [Will] Because they're going to leak it?

[00:43:42] [Dan] What?

[00:43:42] [Will] Because they're going to leak it?

[00:43:43] [Dan] No, no, sorry, sorry. I mean, don't you think that this legal issue will come back?

[00:43:49] [Will] Should I make a dumb prediction? I think maybe the government's gonna abandon this rule.

[00:43:54] [Dan] Oh, really? Because you think it was just a, you know, a 2026 election rule? I mean, because they can try to put this in place for the next election, right? They have more time.

[00:44:05] [Will] I mean, it's true, they could try to put in place the next election. I guess I don't think they're gonna totally abandon it, but I also, I suspect their heart has gone out of it. So I guess they'll appeal. The whole thing might proceed sufficiently slowly now that I'm not sure we'll get an answer by the time of the 2028 election.

[00:44:29] [Dan] Okay.

[00:44:29] [Will] By which time—

[00:44:30] [Dan] That's a long time from now.

[00:44:31] [Will] That's true. So as I say, maybe that's a dumb prediction.

[00:44:35] [Dan] Okay. Well, that will be booked in the prediction engine that are automatically stored, and long after I forget what we've said, our production pipeline resurfaces those. So we will see. Okay, so that's one. I think another thing we were really geared up to talk about in our aborted recording session was round 3 on the saga of the redistricting map in my home state of Missouri, Show-Me State, which I think we did rounds 1 and 2 of, but I don't totally remember. Do you remember how far along we got in our last episode, which is unfortunately more than a month ago?

[00:45:25] [Will] I think we did rounds 1 and 2.

[00:45:27] [Dan] Okay. But why don't we give people the very, very quick overview to set up Act 3? So here's what happens. Republicans in Missouri tried to do mid-decade redistricting. They come up with a new map designed to give themselves one more House seat. There were going to be 2 for Democrats, one in Kansas City, one in St. Louis, and they were going to basically try to get rid of the Kansas City one. Okay. People don't like that, file this petition that you can file that puts a piece of legislation on the ballot as a referendum for the voters in our state. When enough people do that, that apparently kind of just strips the legislation of legal effect until it is endorsed by the voters.

[00:46:24] [Will] Okay.

[00:46:24] [Dan] So that happens. That has to go to the Secretary of State to certify it. And Secretary of State is an extremely partisan Republican. And instead of dealing with it, he just sat on it until an hour before the statutory deadline.

[00:46:42] [Will] Uh-huh.

[00:46:43] [Dan] And then just rejected it, purporting to say it was invalid for some reason. The Missouri Supreme Court ultimately weighs in and says, no, this is valid. And the new map is not and has never been the law under Missouri law. And so they say, you know, you have to go back to the 2022 map. That is challenged at the Supreme Court. The Court denies a stay. Mm-hmm. Okay. Round 2, the, you know, folks trying to— Secretary of State trying to endorse— to use the new map, goes to district court, federal district court. And gets the use of the new map enjoined on federal constitutional grounds, goes up to the 8th Circuit, and then that gets stayed in an unexplained order by the Supreme Court with no noted dissents.

[00:47:45] [Will] Mm-hmm.

[00:47:46] [Dan] So suggesting that everybody thinks that the district court in the 8th Circuit should not have done that.

[00:47:53] [Will] Right. And that was a TRO that was stayed by the Supreme Court.

[00:47:58] [Dan] Yeah. I mean, it must not have been a TRO, right? Because like TROs aren't appealable, I thought.

[00:48:03] [Will] Well, TROs that are functionally equivalent of preliminary injunctions are appealable.

[00:48:06] [Dan] Yes. But I mean, that's what I mean. I mean, it must have had become a PI.

[00:48:12] [Will] Well, but it hadn't become a PI because this is what— so then, after the stay, the district court says, okay, well, that was my TRO attempt, but now I'm going to issue a real preliminary injunction, which, because it's a new order, is not covered by the Supreme Court's stay. And I still think I'm right.

[00:48:32] [Dan] Yeah. And then the 8th Circuit sort of like at oral argument on that, after the district court issued that, sort of said like, we, the message from the Supreme Court is that they just want us to like move on this really quickly.

[00:48:43] [Will] Right.

[00:48:44] [Dan] And it seems like that was not the message that the Court was trying to give.

[00:48:49] [Will] No, I think it was a red light, not a green light.

[00:48:52] [Dan] Yeah. And so we got what I would describe as— is it fair to call this a kind of unusually stern opinion from the Court?

[00:49:03] [Will] Yes. This one also goes in the per curiam box, right? And it's several pages.

[00:49:10] [Dan] Yes.

[00:49:10] [Will] And it describes this and says, given this Court's 2 prior orders in this litigation, our conclusion that this was error should come as no surprise.

[00:49:21] [Dan] And do we think this was written by Justice Kavanaugh because he's the circuit justice for the 8th Circuit?

[00:49:27] [Will] Maybe. That would make sense.

[00:49:30] [Dan] That would make a certain amount of sense. One thing that I enjoyed about this is the final 2 sentences. The district court and court of appeals should not enjoin or otherwise prohibit use of the 2022 map in the 2026 congressional election in Missouri, and the district court and court of appeals should not order or otherwise require Missouri to use the 2025 map in the 2026 congressional election in Missouri. It's like 2 things are sort of the same, and we're just going to write both sentences. Just to make this 100%, 100% clear, do not make us do this again. Yeah.

[00:50:07] [Will] It reminds me a little, you know, one of these pre-shadow docket episodes. There was this execution in the '90s, the Robert Alton Harris execution, where there was this, like, I don't remember if it was Judge Reinhardt or Judge Pregerson or both who were involved, but the Ninth Circuit kept staying the execution and the Supreme Court kept vacating the stays. Like, it was all like, you know, the night of with, you know, clerks staying up at night. And then at some point the Supreme Court issues an order that's something like, the Ninth Circuit shall issue no further stays in this case without order of this Court. And, you know, later there were articles published about this and even some of the conservatives were like, well, that was a little overzealous. Like, no further stays about anything? Like, what if, you know, what if all of a sudden there was a hurricane or, you know, can the Court really just say, like, we're done here? So I appreciate that the Court worded this a little more carefully than that, because they might have been tempted to just say, you know, the district court is deprived of jurisdiction in this case until further notice of this Court, or, you know, no order from the district court shall take effect until further order of this Court, or something. But they did not do, but—

[00:51:19] [Dan] Yeah. And interesting, no noted dissents. Per curiam, no noted dissents. You can't describe it as 9-0 because it doesn't tell us who joins versus who just doesn't note a dissent. But that's interesting because this is a ruling that does intervene in an election, or it intervenes in an attempt to intervene in an election in a way that the Supreme Court's action benefits Democrats, right? And it's the kind of case where you might think maybe Justice Alito is going to come up with some reason why the Court shouldn't have done this, and he doesn't. And so it's a good look for the Court. It's a case where the Court is relying on the Purcell principle, the idea that federal courts are not supposed to come in and muck around with elections on the eve of an election. Even though the states themselves are allowed to do that. And this is an instance where I think that happened, right? The state, through its judiciary, is mucking around with the election by switching to an old map despite the primary using the new map.

[00:52:29] [Will] Right.

[00:52:31] [Dan] But, you know, I mean, it's, you know, it's at least sticking with principle. So—

[00:52:37] [Will] Yeah, no, and it's— I think it— on the one hand, I was going to say, you know, the opinion is unanimous because the merits were tendentious and the Purcell principle's pretty clear anyway. So you'd have to really reach to find a way through. But I think this is the first opinion where the Court has been as clear and emphatic about how the Purcell principle— that, you know, that the Purcell principle's attitude to a state supreme court's last-minute monkeying with election rules is, that's fine. They're the state supreme court. And they not only—

[00:53:07] [Dan] Because we knew state legislatures could do that from

[00:53:10] [Will] Right.

[00:53:11] [Dan] the kind of round of litigation we had in the wake of COVID.

[00:53:15] [Will] Right. And logically, it ought to be true that the Purcell principle, of course, does not restrain state courts, and that between— and that, like, after Moore v. Harper, for the most part, state courts are like state legislatures, or at least we don't ask a lot of questions about whether they're doing things right or wrong. But during the 2024 election, there was a lot of weird back and forth in Pennsylvania over absentee ballots and signatures, and there were questions about whether the U.S. Supreme Court should intervene to order the Pennsylvania Supreme Court to sort of knock it off. And at least some of them were attempts to say that something like the Purcell principle should govern state courts too in federal elections, because— and I mean, you can imagine.

[00:53:56] [Dan] And some states have done that under their own law, their own equitable principles.

[00:54:01] [Will] Right.

[00:54:01] [Dan] But it's not obvious where that would come from, from federal law.

[00:54:04] [Will] Right. And so, and I think the lower courts here tried to take advantage of that to some extent to say, you know, it's the Missouri Supreme Court's fault. They're the ones who messed this up. Yeah. And we're trying to, but so I think this opinion and the last couple Purcell opinions make more explicit than ever before that, you know, Purcell is not an anti-chaos principle. It is a federal judicial restraint principle.

[00:54:32] [Dan] Yeah.

[00:54:34] [Will] And that will sometimes will cause, you know, the U.S. Supreme Court to create chaos by stopping a lower court from doing something that people thought it was going to uphold, you know, et cetera, et cetera. But it's a principle of federal judicial restraint, not a principle of preservation of the status quo.

[00:54:52] [Dan] Okay. So 2 down. What else did we have on our—

[00:54:59] [Will] We could just complete the Purcell theme by then saying, I think it was last night, the Supreme Court issued another almost unanimous opinion like this in New Hampshire, in a case called Scanlan v. Coalition for Open Democracy.

[00:55:16] [Dan] I like open democracies.

[00:55:18] [Will] Yeah, sure. It's just very briefly a dispute about a New Hampshire voter ID law. And whether or not student IDs qualify. And there was an injunction against the state of New Hampshire, and they applied to the Supreme Court to have their stay vacated. And the Supreme Court said, 8 to 1, this Court has repeatedly emphasized the lower federal courts should ordinarily not alter the election rules on the eve of an election. Here, the district court did not point to anything that would justify deviating from that principle. Cites the Missouri case. Accordingly, the stay is granted. Now, Justice Jackson sort of ruined the moment by dissenting to say, well, this one doesn't really count to the Purcell principle because even the statute didn't really say this. And so it was really guidance. It was not really, you know, so, you know, maybe it's not obvious, but I mean, this is the awkward thing about a principle like the Purcell principle is, of course, it serves an incredibly good function of trying to create a nonpartisan procedural ground for just getting federal courts to slow their roll right before the midterms. Of course, that means that in every case, somebody will be able to grouse about the merits and say, well, this one should be different. And of course, for it to work really well, it's great when all the justices just say, you know, that nobody says, well, this one's different. Now again, it can't always work that way. That's how equity and presumptions work. They have limits, but it does seem like a concerted effort on behalf of the Court here.

[00:56:59] [Dan] Yeah. Okay. That was easy.

[00:57:03] [Will] Yeah. Is it the eve of the election yet, Dan? Are you okay with this?

[00:57:07] [Dan] Yeah, it's eve-y. It's very eve-y. I think I can vote now with no-excuse absentee voting in Missouri. I might go do that today or tomorrow. Okay. All right. So why don't we briefly talk about Department of Homeland Security versus D.V.D.? And I think D.V.D. has been up before the Court before, right?

[00:57:34] [Will] Maybe twice.

[00:57:36] [Dan] Yeah, but this is another, you know, immigration— you know, it's an immigration case.

[00:57:42] [Will] Yes, it's an immigration case.

[00:57:43] [Dan] It's the third time. Yeah, it's the third time at the Court.

[00:57:45] [Will] Right. This time is the third time. This is the charm.

[00:57:48] [Dan] Yeah.

[00:57:49] [Will] Right. And the general issue is the rules around so-called third-country removals, right? Because many people have reasons that they can't be removed to the country that they came from or the government wants to remove them from because they fear persecution or torture there. But that doesn't mean that they have a right to stay here. So in principle, if there was some other country that was willing to take them, they could be removed there, at least gotten out of the U.S.'s hair. This is tricky, but in principle possible. And one thing the Trump administration has done is put a lot more effort into trying to get that option on the table. And I gather this often involves payments to the countries or weird negotiations and the like. But one big, 2 big issues with that are, you know, you might also have reasons you can't be moved to the 3rd country that you just haven't brought up because nobody brought up moving you there yet. And so there are due process questions about, you know, how long do you get to, you know, be asked, like, well, is there any reason we can't send you to, I don't know what country you want to pick on. And the other is, what do we need to do to assure ourselves that that country which does not necessarily follow our immigration laws, won't they just turn around and send you to the place where you're not supposed to be sent in the first place? And those are parts of the law that then have all these procedural guarantees that maybe are not being followed here.

[00:59:11] [Dan] Okay. So the District of Massachusetts had enjoined what the government was doing, right?

[00:59:19] [Will] Yes.

[00:59:19] [Dan] And the First Circuit had affirmed that?

[00:59:22] [Will] Yes. This came to the Court on 2 previous iterations where essentially the district court had issued a ruling against this, then it was stayed, then there was some dispute about the scope of the— like, what did the district courts— one of the district court's orders was still alive after the Supreme Court stay, and so the district court was thinking of sanctioning the government for not complying with its stayed order, but maybe it wasn't its stayed order, and the Court had to get it again and say, no, no, no, like, we stayed it, and so it's, you know, the government's allowed to do what they want. And it included a kind of weird, like, assuming as we do that the district court is going to listen to us, we're not issuing any further relief because of the time the government had been asking for the district court to be, like, removed from the case and have the U.S. Supreme Court designate a new district judge because they were clearly at loggerheads with this one. And Justice Sotomayor, I think, dissented and complained of the government's unclean hands. And so that was sort of a, you know, that was sort of a first year of Trump 1 saga. Okay. Now we're back.

[01:00:26] [Dan] Okay. And so we have round 3, district court injunction again, First Circuit affirmance, and now gets to the Court. The Court is going to grant a stay. It's going to treat the application for stay as a petition for writ of certiorari. It's going to grant the petition, and then it's going to rewrite the questions presented in kind of a weird way.

[01:00:55] [Will] Yeah. Well, so in multiple weird ways. So yeah, so the application is treated as a petition for cert. The petition is granted. The parties are directed to brief and argue the following questions. 1, whether the district court had jurisdiction over respondents' claims. 2, whether the district court had authority to enter class-wide declaratory relief in APA vacatur under 8 U.S.C. 1252, which is a statute that seems to forbid class-wide injunctions in immigration cases, but, you know, is this that? Whether the government's guidance on third-country removals is unlawful under 8 U.S.C. 1231, the Due Process Clause, or FARRA, CAT, and its implementing regulations. 4, such other questions that the government determines are appropriate for the proper disposition of the case. So it's—

[01:01:41] [Dan] Yeah, it's just like whatever, whatever else you want.

[01:01:43] [Will] Right. Well, it's funny because of course a cert petition normally can include whatever questions you want, right? But this is like a 3-level circularity. It's like your petition is granted.

[01:01:53] [Dan] The petition that you didn't file.

[01:01:55] [Will] Right. I think they said you could treat this as a petition. Yeah.

[01:01:58] [Dan] I was looking at the docket. Do you understand what's going on in the docket? The docket has the application filed September 24th. It also has a line that says petition for writ of certiorari filed. But there's no link.

[01:02:12] [Will] Mine doesn't have the link.

[01:02:14] [Dan] Really?

[01:02:15] [Will] Correct.

[01:02:16] [Dan] For 26-426?

[01:02:18] [Will] Oh yeah, I was 26—

[01:02:19] [Dan] Are you looking at the docket for 26A406?

[01:02:21] [Will] I was looking at A406.

[01:02:23] [Dan] Look at 26-426.

[01:02:29] [Will] Okay. Okay. Application, petition for certiorari filing. Oh yeah, okay.

[01:02:34] [Dan] I wonder whether they do this, whether they then create a merits case number and then there's like a kind of dummy line put in that says a petition was filed, even though a petition was not filed.

[01:02:44] [Will] Well, this is a petition.

[01:02:46] [Dan] Well, I mean, it's being treated as a petition.

[01:02:47] [Will] That's what I mean. Right. Yeah.

[01:02:49] [Dan] So retroactively, like—

[01:02:50] [Will] I think that's what happened. I think when they decided to treat it as a cert petition and grant it, they had to give it a cert petition number.

[01:02:57] [Dan] But it's weird because it says response due October 29th. That's never going to happen, right?

[01:03:03] [Will] Yes. I think that's, yeah, I think that's an automated, yeah, I agree. That's awkward.

[01:03:08] [Dan] Yeah.

[01:03:09] [Will] Anyway, yes, it's weird to say, your petition is granted, which does not contain any questions, so then here are the questions it should contain, but also it contains whatever questions you want to contain. And again, a cert petition can always contain whatever questions you want to contain, so in that sense it's not that weird. But normally you don't know before you put them in whether they're going to be granted or not. And it's a little weird to be said, you know, it's— you're, you know, whatever you want.

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

[01:03:35] [Will] Now, at the same time, there are already 3 other questions, and it's not that the Court has promised to decide everything in category 4 that the government thinks is appropriate for the proper disposition of the case. So telling the government they're invited to brief whatever else they want, it's sort of like, well, they can always brief whatever else they want.

[01:03:55] [Dan] Okay. Well, we will see what, you know, maybe the government will add 12 questions.

[01:04:00] [Will] One theory is this is an allusion to the issue about whether they still want to make the case for removing the judge. Like, they had some stuff in the first 2 rounds of this case. I think there were some other things not as spicy as that, but that's an example. So one of the theories, this is a way of saying like, all right, if you want to go back to any of that stuff, like, now we can, either because, you know, it's clear the district court is not desisting here, or because it's unclear who it's a good sign for. Yeah. Like, in some ways, obviously, if you're the government and you get an order saying, like, bring us whatever you want, that feels good. You feel like the Court is on your side. But sometimes that's exactly what you do when you're getting ready to rule against the government. Yeah. Similarly, like, on the one hand, obviously the government is prevailing here. They've just won a stay for the 3rd time. But the previous 2 times they just won stays, and this time it's a stay followed by a cert petition.

[01:04:55] [Dan] Yeah.

[01:04:55] [Will] And so you might, you know, as the government, be like, I was— just give us the stay. We don't need the cert petition. We're cool. So it'll be interesting. It'll be very interesting what the arguments are like, because the argument is December 9th. It's soon. But there's a certain amount, I guess, of just— it seems obvious that this Court now requires the Supreme Court to actually intervene and explain what the hell should be going on here.

[01:05:19] [Dan] Will there be some possibility of mooting it in the meantime if there's no stay in place?

[01:05:25] [Will] Well, there is a stay in place.

[01:05:27] [Dan] Um,

[01:05:27] [Will] or do you mean because the government could now maybe successfully deport everybody?

[01:05:32] [Dan] Yeah, that's right. Yeah, that there's not like a stay of deportation in place.

[01:05:38] [Will] Well, right now—

[01:05:39] [Dan] There's not a— there's nothing stopping them from doing that.

[01:05:42] [Will] I don't know what the definition of the class is since the district court purported to enter class-wide relief that's been stayed. If the class is, you know, these classes often include like future people.

[01:05:53] [Dan] If all the class representatives—

[01:05:56] [Will] If the class representatives are gone, but the class is certified and it's a thing that you're allowed to classify.

[01:06:01] [Dan] Don't you need to then go find a new representative?

[01:06:04] [Will] But it doesn't become moot. If you find a new representative, it doesn't become moot. Yeah. And even if you don't find a new representative—

[01:06:09] [Dan] But they have to deport that person.

[01:06:10] [Will] I'm not sure. If you don't find a new representative, I don't think it's a mootness problem exactly. It's going to be a representativeness problem.

[01:06:19] [Dan] I mean, can there just be a free-floating class with no named plaintiff?

[01:06:23] [Will] I don't think that, I don't think there can be as a matter of class action law, but I think as a matter of mootness law, maybe.

[01:06:32] [Dan] Hmm.

[01:06:33] [Will] Interesting. But yeah, so I'm not sure. So maybe, but also doing that might hurt their position on the merits, or at least their position on the merits is going to be, don't worry, we're being careful not to send any of these people back to a place they're being tortured. And then if it were the case that to moot the case, they had to, you know, cut corners, cut whatever corners had not been cut. Yeah. Yeah. So.

[01:06:57] [Dan] All right. Well, we will see what happens with that.

[01:07:00] [Will] Yeah. It could be a big one on a term that is otherwise shaping up to be not as big as last term.

[01:07:09] [Dan] I think it's too soon to say, right?

[01:07:11] [Will] It's always too soon to say.

[01:07:12] [Dan] Yeah. Doesn't a lot of big stuff sort of pop up later in the term?

[01:07:17] [Will] These days, yes. These days, yes. If President Trump decides to assassinate the Vice President and then avoid standing trial or some other thing, that could easily make it on the Court's docket this term.

[01:07:31] [Dan] Yeah. I mean, and it is still possible there will be some crazy last-minute election stuff. Some people are worried that the administration will try to do something to intervene in Election Day and intimidate voters or something.

[01:07:49] [Will] That's really true. Actually, I think Election Day is a less interesting day than swearing-in day also, because there are all these questions about if there are election irregularities that have not been addressed by the courts, to what extent can Congress address them? I think I saw just today the Trump administration has filed suit in Alaska arguing that the Alaska results are going to be illegal because the Alaska Supreme Court failed to kick—

[01:08:14] [Dan] The other Dan Sullivan.

[01:08:15] [Will] The other Dan Sullivan off the ballot. And I'm sure that will be also— yeah. So there's— I mean,

[01:08:21] [Dan] Well, that might be good for the podcast, won't be good for the country.

[01:08:24] [Will] I don't want to say I take it back because we can go ahead and score the prediction that this term will be less big than the last term, but it's definitely soon to tell.

[01:08:32] [Dan] Okay. All right. Well, thanks very much for listening. Please rate and review at Apple Podcasts or wherever you get your podcasts. Website, dividedargument.com, for transcripts. Blog.dividedargument.com for commentary from the wider Divided Argument universe. Store.dividedargument.com for merchandise. Send us an email, pod@dividedargument.com. Leave us a voicemail using our website. There's a form there where you can leave a voice message or call 314-649-3790.

[01:09:05] [Will] Thanks to the Constitutional Law Institute for sponsoring all of our endeavors, and thanks to Debra Cafaro for your support.

[01:09:11] [Dan] And if there's a long delay between this and our next episode, it will be because of various factors this fall that are conspiring to make recording tough, but hopefully it will not be because Will has sustained a life-threatening injury from his water cooler.