Divided Argument is in its sixth season! Our first episode of the term focuses, of course, on the latest developments on the shadow docket. These include several grants of interim relief to the Trump administration, as well as some dissents from the denial of certiorari. But first, an update on Dan's travel schedule and ChatGPT usage, and an important correction to our previous episode.
Divided Argument is in its sixth season! Our first episode of the term focuses, of course, on the latest developments on the shadow docket. These include several grants of interim relief to the Trump administration, as well as some dissents from the denial of certiorari. But first, an update on Dan's travel schedule and ChatGPT usage, and an important correction to our previous episode.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Season 6.
Will: We made it.
Dan: Wow. First episode, hopefully of many. Season 6. It's not the first Monday in October. It is the last Wednesday in October. But staying on brand, we tend to not be that active even at the beginning of the term.
Will: But our seasons roll over based on the first Monday in October, right?
Dan: Yeah.
Will: It's like election day. It's like the first recording after the first Monday in October, whatever that might be.
Dan: Yes. People were hoping though that we were going to come out with an episode the day the term started, we have disappointed them.
Will: As always.
Dan: Yeah, but I've got some excuses. I've been traveling a bit but did you have any follow up you wanted to do before we--?
Will: Yes. Speaking of disappointing people, I guess we do have an important correction from our last episode. I think we got to talking towards the end of the episode with Justin Driver about an issue not in the book. So, we were freelancing.
Dan: Always a danger.
Will: About affirmative action and Supreme Court law clerk hiring. And some people on the episode, I think, not me. Some combination of you, Justin and ChatGPT.
Dan: I made no representation. All I did was, I was a conduit for ChatGPT.
Will: Okay, well, suggested that there had not been an African American law clerk for the Chief Justice of the United States in like 50 years, since Earl Warren. That is not true. We've been given at least one counterexample. I don't think we're going to start trying to name names and establish the race of everybody. But I'll just say it was not true and there are some counterexamples. My excuse is I try not to care what race anybody is. I'm not sure what everybody else's excuse is.
Dan: I don't need an excuse. All I did was respond to the claim. I said I checked ChatGPT. And ChatGPT gave me answer that appears to have been quite incorrect, as it sometimes does. ChatGPT, it's very interesting. It's a very, very useful, very powerful technology and at the same time incredibly deeply flawed. It have not quite figured out how to balance those two things.
Will: When I think of ChatGPT as my crazy, half drunk, unreliable research assistant it does pretty well. Sometimes, I'm like, “Hey, is there a statute that governs the question of whether Donald Trump could replace the Jefferson Memorial with a statue of himself?” And in 21 seconds it gives me the answer, “Yes, there is a statute.” And then other times I'm like, “Take this list of 21 cases and put them in a word document in this order.” And then half the cases disappear. And then I'm like, “No, no, all the cases.” And then it's like, “Okay, here are 19 of them.”
Dan: Sometimes, it's worse than that though. There was a question about Supreme Court procedure. I was curious about the other day. Specifically, a friend of mine was going to be following amicus brief and I wanted to know, can you file an amicus brief as council record if your SCOTUS bar membership is pending but not approved. And I asked ChatGPT to give me a very clear answer based on the rules. There is nothing in the [chuckles] rules about this at all. [Will laughs] And it does this a lot on narrow procedural rule-based questions. It will very confidently give you answer when there is not answer. So, I don't know. It's useful for proofreading. I use it a lot for writing ,as a thesaurus. I sort of say I'm trying to express this thought, but I'm not expressing it clearly and it'll give me a different word, a different turn of phrase.
Will: I use it mostly to find me stuff, but only stuff that I then will look at. And sometimes, it finds me what I'm looking at and sometimes I'm like, “All right, you don't know what you're talking about.” And I move on.
Dan: Okay, well, my excuse, I don't know, do you have excuses for delay or you've just been doing your thing, cranking away on originalism?
Will: My excuse is you weren't around to record.
Dan: Okay, well, I've been traveling, so I think last time I recorded, I had just done the SCOTUS blog summit, the event where, among other things, I learned about Justice Barrett's CrossFit regimen, which is not able to do anymore. Since then, I went to Columbia Law School and spoke to their student chapter of their Federalist Society. Did you know I'm allowed to do that now?
Will: I didn't know you were willing to do that.
Dan: I'm totally willing. I'll go anywhere. Did you get me approved? Did you call somebody and say that I'm allowed to be invited? Not as a foil, but I just was the person talking.
Will: You're now in the tent.
Dan: Apparently, it's cool. It's fun. I enjoyed that. And I think this is something that arises because sometimes these student chapters want us, and particularly you, to come record a podcast episode. It's very hard to get you out of the house and certainly hard to get you out of the environs of Hyde Park. And so sometimes, they're willing to accept me. So that was fun. Talked about you a little bit because I gave a talk about my Fourth Amendment and general law paper. And so, I had some discussion of your-- [crosstalk]
Will: Positive law model of the Fourth Amendment?
Dan: Conflicting approach or somewhat sympathetic of somewhat different approach. So that was fun.
Will: You know, if we overrule Erie, then the positive law model and the general model will be the same.
Dan: I think that's right. Yeah. Basically. Well, in federal court, yeah. In state court-- [crosstalk]
Will: It depends on exactly how deeply we overrule Erie.
Dan: Yeah, it depends how the state court conceptualizes its own law, right?
Will: Yeah. Fair enough.
Dan: So, then I went to Provo, Utah, for the Brigham Young University Reuben J. Clark Law School. That was cool. Have you been out there?
Will: I have.I've been to a conference there. Although, the one problem with going to a conference there was the lack of caffeine in law school.
Dan: There was no coffee in the building. But I found a really excellent hipster-y coffee shop, and I got my cold brew, got a biscuit, so that was no problem. It is beautiful there. I mean, it's amazing. You step out of the hotel and there's like a mountain, five feet away. I mean, it's hard to explain how close this mountain is to the town. I mean, it's in the town, it's in the city. So, that was great. Some really nice people. Very good feedback on my papers. I was presenting the other Fourth Amendment paper. And then the next week, I presented the same paper at Catholic University Law School in DC, and that was also a great experience. Have you been there?
Will: I don't think I ever have been there. There's a lot of great people.
Dan: Yeah, they're doing really well. They seem to be hiring a bunch after not hiring for a while. I think, I'm told they're trying to follow a Notre Dame model where Notre Dame did a bunch of really good hiring a couple decades ago and really boosted its reputation. So, I was impressed. Hung out with Joel Alicea, who is the director of their Center for the Constitution and the Catholic Intellectual Tradition. These centers are cool. You've got a center.
Will: I've had a center.
Dan: I don't really understand what centers are other than they have money.
Will: They have money, they have programming. Sometimes, they have people.
Dan: They have podcasts, apparently.
Will: Randy Barnett sometimes describes who used to run or now co runs the Georgetown Center for the Constitution with Stephanie Barclay. He used to describe his center as being like an iron man suit. [Dan laughs] He's always a law professor, but when he puts his center on, it just empowers him to do a lot of things he'd do as a law professor.
Dan: But better.
Will: More better, he can fly.
Dan: Yeah, I get all sorts of things in the mail from his center. I think I got his memoir from his center. Did you read the memoir?
Will: I read a pre-publication draft.
Dan: Okay, so centers are cool. Catholic was cool. We had a great dinner. The six course wine pairing, which was a first for me. You had a fancy dinner at your conference that you invited me to a couple years ago. [crosstalk] There was many courses, but I don't think we had the wine pairing.
Will: Okay, well, we need a better center, apparently.
Dan: Is Chicago doing okay? I just saw this article in the Chronicle of Higher Education about how much debt. Why does Chicago have all billions of dollars of debt? Who's it borrowing from?
Will: That's a complicated question. Most of what you read about the University of Chicago is not the whole story. But the University of Chicago borrowed a lot of money to build a lot of buildings and now has to pay back.
Dan: Okay. If you do borrow money to build buildings, you do have to pay it back. Was one of those the law school building? You guys have a nice building.
Will: No, our building has not been-- [crosstalk]
Dan: It's a little older, right?
Will: Yeah. We could use a new building.
Dan: It's architecturally cool. It's a little brutalist, but--
Will: It is a little brutalist. I like it.
Dan: Big concrete.
Will: It's one big building. And it means all the faculty are in the same place, as are all the fellows and the students in the library, and everybody is together. So, the maximum number of steps between my office and any colleague's office is probably double digits, which is just part of the secret to our intellectual culture.
Dan: Well, I think I will be there soon. We've talked about a live show this spring. That's still happening, right?
Will: That's still happening. It'll be great.
Dan: We haven't done one of those in a couple years, right? We didn't do one last year. We kept talking about it, but you told me there were too many events.
Will: They told me there were too many events. I couldn't get on the calendar.
Dan: [chuckles] And even you, you have a center and you couldn't even get on the calendar.
Will: One of the things about having one building and an old building is sometimes we're bursting at the seams.
Dan: We could have done an outdoor recording out on that little plaza. You have that plaza in front of the law school. That seems like a very poor use of space.
Will: We've never tried to record an episode al fresco. I'm not sure even our excellent editor could make that work.
Dan: Yeah. Okay, so those are my travels. Interestingly, my invitations seem to be skewing, arguably a little bit more right leaning. And I think that maybe that's a function of this podcast. This podcast seems a little bit more popular on the right side of the aisle. So, I don't know if that means I'm not doing my job of engaging in screeds.
Will: Well, a colleague told me the following joke, which I'm sure you and our listeners have heard before, which is, “What do you call a Democrat who agrees with the Democratic Party platform, but everything except one issue? A Republican. [Dan laughs] What do you call a person who agrees to the Republican Party about everything but one issue? A Republican.
Dan: Yeah, that seems about right.
Will: And especially in the legal academy today, it seems the right side of the aisle is maybe a little bit better about heterodoxy, at least inside the academy.
Dan: I think that's right. Although, we're seeing maybe interesting shift going on. At least some universities seem to realize that they've gotten a little bit out of whack and are now trying to do a push to hire more intellectually heterodox types. Do you think that's going to pan out, or do you think that's just kind of all talk?
Will: I think it's great, if true. I think almost every law school, anyway, if you ask people, they would say they want more intellectual diversity. They would say they probably don't have enough conservatives in the faculty. They're always looking for that-- [crosstalk]
Dan: But not that one.
Will: Any specific person. They're like, “Well, but we want somebody who's thoughtful and who doesn't have hateful views.” So, they can't disagree with us about anything that we really care about.
Dan: Yeah.
Will: And they certainly can't support Donald Trump.
Dan: So, this is why everybody loves you.
Will: Arguably.
Dan: You're super anti-Trump. You're originalist against Trump. You think he's not even eligible to be president.
Will: I do think he's not eligible for president. That's true.
Dan: You don't like qualified immunity.
Will: That's also true. It's funny. I think 80% of the articles I've written to the extent they code one way or the other, probably code right rather than left. And yet the ones that have gone the most viral are against qualified immunity and Trump is not qualified. Probably my two most, yeah.
Dan: Although you mean code right because they're articles about how originalism is the right way to interpret the law, interpret things.
Will: Originalism. They might be why administrative adjudication is mostly unconstitutional.
Dan: But those don't have bite in terms of specific issues. In the same way, if you write an article about originalism and you were right, like here's why I believe in fetal personhood is right or something that codes more than just sort of something that's about methodology.
Will: I agree. That's one of the weird things about how we code ideological views in law and legal academy is like a left-wing professor is somebody who believes that Roe was rightly decided and we should have more disparate impact litigation and so on. And then a right-wing person is a person who believes that we should follow the text regardless of the consequences and doesn't really talk about. [Dan laughs] Has no consistent views on policy. That's considered a very conservative view.
Dan: Yeah. Although then there's now the Vermeulen approach.
Will: That is also considered a conservative view. But it's just funny that a lot of methodological formalism without a ton of consequentialism is seen as a right-wing view rather than apolitical-- [crosstalk]
Dan: Basically, anything where you're not straining to reach a particular outcome.
Will: Well, not just a strain. Like I said, if you don't miss the Warren Court, then you're a conservative.
Dan: There is things to like about the Warren Court.
Will: Sure. Like what?
Dan: Okay.
Will: Brown v. Board.
Dan: Yeah. [laughs] The concerted effort to stamp out the horrible legacy of racial subordination in the unreconstructed south.
Will: Yeah. These are things. I think of that as one big thing. There's one big thing about the Warren Court.
Dan: I don't know. Some of the criminal procedure stuff, I think, I mean it's related, but I think-- [crosstalk]
Will: I mean, all the good criminal procedure stuff was part of the effort to stamp out like Jim Crow in the South.
Dan: Yeah. I mean that is one. That's a Michael Klarman argument, although they're related, but they're not exactly the same thing. Right? I mean, like Gideon. I think Gideon is good. Maybe you don't like Gideon. You're married to a former public defender.
Will: I'm professionally and personally stopped from saying anything bad about Gideon.
Dan: Okay. I think Gideon's pretty good.
Will: Yeah.
Dan: I think there's a lot to like there. And there's stuff you can disagree, but I think they did a lot of good.
Will: I once tried to start writing a contrarian, Gideon's not that good or Gideon's not that important article. And I couldn't [laughs]-- [crosstalk]
Dan: You couldn't just bring yourself to bring the scorn upon yourself or--?
Will: No. As I looked into it, I thought actually Gideon was pretty important.
Dan: Oh, okay. You were writing one about how it had perverse effects or something like that.
Will: Well, so before Gideon, there were all these other, you had appointed counsel in federal court already. So, it was going to be a sort of like, if we didn't have Gideon, but we had a lot of the other stuff leading up to Gideon, wouldn't we still have a lot of what matters? And we have states that are obviously not complying with true Gideon. So, it's going to be a hollow hope style. How much did Gideon really get us? But actually-- [crosstalk]
Dan: But it turned out that it was a lot. [laughs]
Will: At least I didn't get that far into it. I found the daft to think my initial contrarian intuition was wrong I was like, “[unintelligible [00:15:49]”
Dan: Sometimes the common wisdom is not wrong.
Will: A lot of the time, turns out.
Dan: Yeah, the wisdom is common for a reason.
Will: Yeah.
Dan: Okay. Any other tidbits? I mentioned memoirs.
Will: Yeah, we got a book by Justice Barrett that we briefly mentioned before on the show and now we have a memoir by Justice Kennedy as well in which you are quoted.
Dan: I am-- [crosstalk]
Will: Or cited?
Dan: Yeah. I think a little bit more than that. I think I'm a little bit of a minor character in the memoir because a couple years ago the Justice said he was writing a little bit about some of his important decisions. And he'd always been curious what some of the litigants in those cases, how they reacted and in particular, he was curious about his decision, Roper v. Simmons, whether the defendant in that case, whose death sentence was commuted to life without parole as a result of that sentence saying juveniles can't be sentenced to death, how he reacted. And so, I actually talked to Christopher Simmons, incarcerated in Missouri. I ended up talking to him for a good while and it was interesting conversation. He actually was perhaps unsurprisingly, grateful for the decision and was grateful for the opportunity to actually indirectly thank the Justice.
To the extent that that decision was premised on this hope that additional time in prison rather than execution would allow juvenile offenders to mature and grow, it seems like maybe there was some. That one data point was useful.
Will: Yeah, that's very interesting.
Dan: I enjoyed that opportunity. It was really nice. I helped him just a little bit, reading snippets of the memoir here and there. It was very fun to feel like, it reminded me of being a law clerk for just a few instances. And I do miss those days. I think I've mentioned how I have the occasional clerking dreams. Right?
Will: No.
Dan: I've never mentioned this? I must have mentioned this some seasons back or just every once in a while, every couple years, I dream I've somehow made it back. One of them has hired me back to be a clerk and I'm back in Eden briefly, which would be fun. I'd be better at it now.
Will: Yeah. Too good. I mean that’s-- [crosstalk]
Dan: Yeah. I wouldn't be a tabula rasa in the same way.
Will: One of the things Justice Barrett says in her book is that an important part of why Supreme Court law clerks are so inexperienced is because experienced lawyers would demand and expect some degree of autonomy and control over their work product. It's like a major part of what happens as you go up. And that's just fundamentally inconsistent with the job of a Supreme court law clerk.
Dan: I don't know if I would. I think I would be comfortable just being a kind of-- I wouldn't want to do it for my whole career, but because I have this other job that I would go back to, it wouldn't bother me to be a toady for a little bit.
Will: Justice Gorsuch hires law professors well into their career to come and do a clerkship every so often. I've offered every once in a while, to go back for a day or something to help out, [Dan laughs] but I've never gotten anybody to take me up on it.
Dan: You should do that. Yeah, that would be fun.
Will: Just like a sort of ad hoc special master or whatever.
Dan: [laughs] Just today you would do it for a couple months, maybe take a quarter off?
Will: Well, I guess. I don't know. If needed.
Dan: Needed? I'm not sure about. I think you're a very talented lawyer. But can the institution survive with other replacement clerks? Probably.
Will: Yeah. I think they're doing great.
Dan: [chuckles]In general, just categorically?
Will: As we'll talk about-- [crosstalk]
Dan: Yeah. Let's figure Out. Are they doing great? So, we're not really going to talk about merits stuff. We may do some case preview type stuff as the term goes on and some argument recaps, but right now we're not really geared up to do that. We're going to just catch up on various emergency orders that we've missed.
Will: Does the court have a merit’s docket? Sorry, I've lost track.
Dan: I mean, they still are holding arguments and stuff.
Will: Yeah, I guess. No, they have Louisiana redistricting. They're going to have tariffs.
Dan: Well, I mean, they have all sorts of other minor cases. Although interestingly, in one of the decisions we're going to talk about, Justice Kagan herself basically says our merits docket is not important. [laughs] So, in a case we are about to discuss, Department of State v. AIDS Vaccine Advocacy Coalition, Justice Kagan makes a familiar, but I think well taken criticism of how the court is again deciding an issue on the emergency docket without a lot of time briefing and consideration. But what she says is a little bit more interesting than what has been said. She says, “Per usual on our emergency docket, we have had to consider this application on a short fuse, less than three weeks. We have done so with scant briefing, no oral argument, and no opportunity to deliberate in conference.” Now that's interesting to have confirmation that they are not talking about these cases in any form of conference.
I mean, I think that was our intuition and that was our assumption, but given how many of these cases there are, you could imagine maybe they would come up with some other procedure. Let's have a Zoom to talk about some of these, and apparently not. “Because of how this case came to us, we likewise do not have the benefit of a pertinent court of appeals decision, much less a set of decisions expressing different views.” “In a few weeks’ time, when we turn to our regular docket,” so this was in September, “we will decide cases of far less import with far more process and reflection.” So, basically just like officially saying merit's docket is not important.
Will: Yeah, or at least some of it, right? We decide the important cases on the papers on an emergency basis over the summer, and then we go eat our vegetables.
Dan: Yeah. Okay. Is that the one you wanted to actually talk about first?
Will: Let's just dive in there. Yeah, sure.
Dan: Okay, so what's this case about?
Will: Okay, this is one of the more important interim docket, shadow docket, emergency docket decisions we've had since our last episode, technically part of the last term, since that is September 26, 2025. But it's probably the most significant case from the court so far about impoundment, which is to say the administration's decision not to spend a bunch of money that Congress had appropriated, which is something that the administration has been doing since day one. Some of the early DOGE litigation throwing USAID in the woodchipper, as some members of the administration would put it, were like this. And this exact case or case of this name, Department of State v. AIDS Vaccine Advocacy Coalition was on the emergency docket very early on and the court did not grant relief.
And it was back when they were still not even sure if you could hear an interlocutory appeal from a TRO seems like ages ago. So, the long short of it is that the District Court in DC had ordered the executive branch to spend several billion dollars that the executive branch was arguing didn't have to be spent under the impoundment efforts of invoking procedures in the Impoundment Control Act. The US Court of Appeals did not grant a stay. And the court stepped in to grant a stay and say, “The government at this early stage has made a sufficient showing that the Impoundment Control Act precludes respondents suit brought pursuant to the Administrative Procedure Act to enforce the appropriations at issue here. The government has also made a sufficient showing that mandamus relief is unavailable to respondents. And on the record before the court, the asserted harms to the Executive's conduct of foreign affairs appear to outweigh the potential harm faced by respondents. This order should not be read as a final determination on the merits. The relief granted by the court today reflects our preliminary view consistent with the standards for interim relief.”
Dan: So, is that just the intro or is there more?
Will: That's basically it.
Dan: Okay. All right. That's the whole thing, I guess. The whole thing that matters.
Will: Yeah. My understanding is that in practice, because of when the fiscal year rolls over, this means that this tranche of several billion dollars in foreign aid will never get spent. But maybe it already has been spent. There's a lot of confusion what's actually happening in the ground. But it's the most significant victory for the administration on not the question of whether you can fire people, not the question of which court do you have to go to for grants, but can somebody sue them to stop them from impounding funds, which previously people have been doing under the APA. Now the court says you can't do it under the APA, you have to use the Impoundment Control Act.
By the way, the Impoundment Control Act probably also won't work it seems to largely be enforced by the comptroller general, who may or may not be subject to presidential control.
Dan: Yeah. Although Justice Kagan, so as often is the case, we have very little explanation from the Court and then a much more fulsome explanation and argument from a dissenter. So, Justice Kagan, joined by the two other liberal Justices made a facially, to me, persuasive case that the suit would not be precluded by the Impoundment Control Act. And she points to the text of the statute which says, “Nothing contained in this act shall be construed as affecting in any way the claims or defenses of any party to litigation concerning any impoundment.” Which seems pretty clear to me.
Will: It is hard to write a clearer and a more emphatic non-preclusion provision than that.
Dan: Yeah. So, I guess the counter argument is that this was actually really about pending suits and not all future suits.
Will: I think so.
Dan: But she goes on to make, I thought, a persuasive argument about viewing this statute in context that doesn't seem plausible. This was designed to create another weapon to stop illegal impoundments rather than making it harder to challenge impoundments.
Will: Yes. It's just not clear to me what's going on here. The Court doesn't quite say that it thinks that the impoundment control argument is correct. It says the government at this early stage has made a sufficient showing that the Impoundment Control Act precludes respondent suit. And then it also talks about the balance of harms and the foreign affairs context. So, you could almost read that to say we really care about the balance of harms. But the government's argument on the merits is like however non frivolous it needs to be for us to consider that.
Dan: Tip it over the balance.
Will: Now, I thought under the Court's precedents, you had to show you were likely to succeed on the merits. You had to cross the 50% threshold in the merits for their stuff. But maybe not. It's a little vague.
Dan: Yeah. I mean, maybe this is the best we can expect. I've said there's a balance here. You don't want them to write a 30-page opinion necessarily, that resolves a bunch of issues with, Justice Kagan puts it, scant briefing and consideration. But it is helpful for them to at least explain what they're thinking. Is this the right solution to that Goldilocks problem? I'm not sure. I just am getting increasingly frustrated by the majority's apparent view that just the Trump administration always has irreparable harm and there seems to be no weight on the other side of the scale for the fact that this might be deeply illegal. And actually, a serious separation of powers power grab from Congress. Is there some harm to Congress, too? That doesn't really seem to be part of the weighing.
It seems like the court is just focusing on the President and the plaintiffs. But in these separation of powers cases, it seems a little bit strange to not think about the other political branch that is potentially being railroaded here.
Will: Right. Although if the court were to get to this case on the merits merits, that is how you do it. You would decide the cause of action question largely in isolation from the question of who would win if there were a cause of action.
Dan: Yeah. Although presumably there might be a constitutional question in the background. Again, to the extent that there's uncertainty about who's right, there is, I think, harm to the legislative branch of government because it has made these appropriations and they will disappear.
Will: Yes. So, I do think one of the things that has gone awry on the emergency docket, one of the legal things is there is pretty much an automatic irreparable injury rule now for the government.
Dan: But it's not just-- It's how much weight they're putting on it too in addition to saying that it exists.
Will: Yes. Well, I guess there's both.
Dan: So, it outweighs people being deported to horrible places. Many people being deported to horrible places.
Will: I mean, the structure of the analysis is part of what's frustrating is once you decide the government is sufficiently right on the merits and has suffered a horrible injury, which has always suffered, then you get to the balance of the equities. But at that point, you've put the main two thumbs in the scale. And I agree that seems to be a problem. Again, I've heard offline people say, “Look, this case really isn't that big a deal. This money was, actually it is weird foreign spending. It's not like the other impoundment fights. There's a lot of reason to think this piece of the induction was a little bit over broad. So, it's not that big a deal that the court stopped this one.” And none of that is on the page.
And to the extent that's what the court is thinking, it would be nice to get a little more of that on the page. I say this is one of the first ones that maybe surprised me a little bit, from expectations of the emergency docket litigation back in the spring, I think I thought some of the egregious impoundment violations were going to be some of the places where the government was more likely to lose than the Humphrey’s Executor cases and things like that.
Dan: Right now, the government is just basically winning on everything and has been for months, right? Maybe at the margins, maybe not, but—
Will: There's a split decision in the NIH case, which may not matter. It's also weird. So, we are recording this with two major cases that have been pending for a little while, like more than a week and presumably, they will be decided after we record, before this episode drops under our usual-- [crosstalk]
Dan: [chuckles] Like 10 seconds after we hang up the mics.
Will: Whenever you bring your umbrella, it doesn't rain. I don't know what'll happen. One of them, it's been pending for almost a month, is about the sex and gender designators on passports, which I'm surprised the administration hasn't just won on and I wonder that would almost be an interesting case for the court to actually finally reopen the irreparable injury question and be like, “Look, is this really an emergency?”
Dan: Yeah. Printing it on a passport or not.
Will: Yeah. Yes, the Trump administration wants to take X off the passports and make them all say M and F. But is X a threat to national security? The other one is the National Guard case, which is directly relevant to me because right now the District Court and the Northeastern Illinois and Seventh Circuit have enjoined the National Guard deployment in the city of Chicago, which is nice. It makes it a little safer here not to have them wandering around. But the Trump administration has said—[crosstalk]
Dan: Does it?
Will: I think so.
Dan: Because you're more afraid of them than of the criminals?
Will: Yes. And my understanding is that in practice, they are not really here to stop criminals. They're just here to stir up trouble and try to get into a conflict that will then justify further escalation. So— [crosstalk]
Dan: That would be bad.
Will: I assume the government will still win on the grounds that we have a lot of deference to the president calling out the militia and the court will try to say something. Try to find some way to say, “While the executive wins this one, they still can't call the National Guard to occupy all the polling places in 2026.” I'm not quite sure how they're going to say that, but I assume that's what they want to say.
Dan: Well, we will find out.
Will: Yeah.
Dan: So, there's that one that was maybe the one you thought was most significant.
Will: Yeah. And then briefly worth mentioning, is the court once again returned to the matter of Trump v, Slaughter, which is whether Humphrey's Executor should be overruled and finally granted cert. Granted a state pending appeal. Granted cert. Put it on the December argument session. So, Justice Kagan, you wanted to get significant issues on the merits docket, now you get your wish. They've also scheduled the litigation of Lisa Cook's firing for January, which is interesting, and they've not granted a stay in that case, which is another not quite win for the Trump administration. She's going to continue in office until January while the court sorts it out.
Dan: And you've written a little bit about the Fed question, you had a blog post about it. And then there's a follow up blog post by Andrew Cohen on our blog that I thought was pretty interesting about whether there's some way to apply stare decisis selectively context by context.
Will: Yeah. Since stare decisis already has built into it, all these pragmatic loopholes that irritate me, but that are part of the way stare decisis works. He suggests, I think he's right, that that makes it easier for the court to say Humphrey’s Executor is partially overruled. It's overruled as to all the agencies where we want to overrule it, but it's not overruled as to some agencies where the cost benefit analysis is different and that creates a way to preserve the Fed. Interestingly, the Trump administration is not even arguing now that Humphrey’s Executor applies to the Fed. Like in Lisa Cook's case, they concede that they need cause and they've abandoned their constitutional challenge. Their only claim is that they have cause because they've dug up this arguable mortgage misconduct from before she was appointed. Now they're sort of related. Like if you water down cause so much that an arguable unadjudicated piece of misconduct from before you ever became an officer is enough to count as cause, then maybe we don't care, but that'll be interesting.
Dan: So, it's going to be a busy term. I'm sure there are more huge cases that will be granted and decided before it's all said and done. But we're already racking up some big ones.
Will: We got tariffs coming up and the SG has asked the court to grant the merits of the birthright citizenship case. So, I think it's going to be a big term.
Dan: Yeah. We'll talk about tariffs at much greater length at some point. Can I just do a quick temperature check where you are on those?
Will: I think it's tricky. I guess, I think little picture, like the government has a lot of good arguments about the tariffs, about the statute. There's no one thing that's a knockdown argument. I do think big picture, can it be that the tax power, which is explicitly given to Congress and was one of the most important things to give to the Congress as a takeaway from the executive branch, allows this unconstrained behavior pursuant to a dubious statutory authorization? Big picture, it's sort of hard to see how that can be the right answer, but I think it's tricky.
Dan: Well, for an interesting argument about tariffs from the tax angle, my colleague Conor Clarke has an amicus brief that he filed with my school's appellate clinic, joined by him and three other tax profs as amici, one of whom is your former colleague Daniel Hemel and Jon Endean of Brooklyn and Ari Glogower of Northwestern. So, that's an interesting one.
Will: Friend and neighbor as well. He lives in Hyde Park.
Dan: Oh. Next door neighbor or just neighborhood neighbor?
Will: Very close neighborhood.
Dan: Okay. So, I recommend that one. I thought our students who helped out with that did an excellent job. We don't have a Supreme Court clinic as such here, but I think it would be nice if we did a few more of those in the years to come. You all have a Supreme Court clinic right now?
Will: We do. We have a Supreme Court Clinic partnered with Jenner & Block, run by Sarah Konsky and David Strauss.
Dan: Do they have anything coming up? Are they doing more amicus work?
Will: I don't keep careful track of the docket, but they're involved in a lot of different things. And that means we often have interesting moods at the school, too, and so on.
Dan: Very cool. Okay. So, we got that one. What else? We could briefly talk about Noem v. National TPS Alliance. This is an issue that came up some months ago in May, but the question is whether the lower courts in the Ninth Circuit are trying to hold on lawful the revocation of this temporary protected status for a bunch of Venezuelan nationals. And this was going to go into effect and the court granted a stay. And the Court just said, “Although the posture of the case has changed, the party's legal arguments and relative harms generally have not.” Interestingly, Justices Sotomayor and Kagan just say they would deny. They don't dissent, they don't write, and they don't join Justice Jackson's dissent, which is several pages long.
I don't know if they're just taking the position that when the court has already basically ruled on the question and we've had our say, we're not going to revisit it. We'll just continue noting that we don't agree.
Will: Right. It is a slightly interesting example of how the precedent in the shadow docket works. We're now reaching the stage of the shadow docket where the applications had the same name as previous cases that also granted relief in the same cases, Trump v. Slaughter, Noem v. TPS. And so, we've seen the court say, “Well, we already kind of decided this one, so we're deciding it the same way,” which is further evidence that these decisions are becoming somewhat precedential.
Dan: Yeah. But again, it's another context where the court's weighing of harms seems especially troubling to me. When you have hundreds of thousands of people that are going to be deported to a country that's very unsafe, undergoing a kind of crisis. I don't know. I would put a tremendous amount of weight on the scale there.
Will: Yeah. I mean, I don't disagree. Although it also maybe shows the way in which it's hard to do a neutral balancing the harms. If you think that the question of who is and who isn't allowed to come and be in the country is one that has cost some benefits on both sides, as a lot of people believe, then you might say hundreds of thousands of people think that they have impact on other people who are here and so on is also a big deal.
Dan: But to the extent there remains any uncertainty about the underlying legal issues, if there is some possibility that there are people here who are legally entitled to remain for at least a limited period of time because the revocation of their status was illegal, if that's still on the table, then I do think that that's a legitimate harm to weigh. Even if you put weight on the other side of the scale, which is booting people who aren't supposed to be here, I guess.
Will: Yeah. I mean, I tend to agree. I tend to agree. If you have a view about immigration, I guess that I don't have, that people who are here on temporary protected status are harming their communities or something like that, then you might say that harm is also irreparable and we need to worry about it.
Dan: Eating dogs?
Will: Yeah. I mean, I tend to think they're actually making the country a better place. So, bring it on.
Dan: Are you open borders? You're pretty libertarian, right?
Will: Yeah. I mean, more or less.
Dan: More or less. Okay.
Will: I guess I think it's fine to have borders where we make sure people aren't carrying nuclear bombs or communicable diseases or something, but I don't think we should—I think if people want to come here and other people want to sell them food and rent them apartments and give them jobs, we ought to let the market take care of that.
Dan: So, I guess one other just side note, just to revisit the Perdomo Vasquez decision, which is the question about the lawfulness of investigative stops, basically for immigration reasons and whether the government can go hang out at Home Depot and stop people who are speaking Spanish and so forth. I do think Justice Kavanaugh's description of how unintrusive the stops are, especially for people that are citizens, is continuing to not age well. I feel like every day I read about examples of people who actually are citizens but are nonetheless violently detained, remain in custody for some length of time, and on social media, it's now the kind of thing is to call these Kavanaugh stops.
Will: Do you think calling the Kavanaugh stops is unfair?
Dan: To whom?
Will: Kavanaugh.
Dan: I mean, he's not doing the stops.
Will: [chuckles] That's true. He's not even the only Justice who thought they’re okay.
Dan: Yeah, but what you call them or not, I do think it is fair to point out that that description, which at the time seemed somewhat credulous and seems to continue to not account for the way these things work in practice, I think it does deserve criticism. And I think his opinion could have been written a little differently. It could have said, “Insofar as the record reflects right now, or the government is represented, here's the way these things work.” And maybe to the extent that there's a lot of evidence that that's not the case.
Will: So, friend of the show, and I think maybe on our blog, Richard Re made this point about that passage that I thought was very insightful, that he thought that credulousness was really actually designed to be a very gentle rebuke. His analogy was the way a teacher might say, “Johnny, I know you would never put chewing gum in another student's seat. You must not have done it. You would never do that.” Asserting this could never happen, could be a way of saying, “We've let this slide a little bit, but get it in line.”
Dan: That's a very charitable interpretation.
Will: I think that's probably right about what the opinion was trying to do, but it doesn't seem to be working.
Dan: No.
Will: And so, the part of the opinion that said, and to the extent that I'm wrong about that, there are, of course, remedies, I am just genuinely curious. I don't know how that's working out. If people who have been subject to these stops tried to file FTCA and Bivens claims, the Ninth Circuit relying on Kavanaugh saying, look, he said there were remedies, so we're here to get our remedies. I hope people are trying that they're asking for Kavanaugh remedies for their Kavanaugh stops, at least because if we're going to go down this road, then I think we ought to try to figure out what the consequences are.
Dan: Yeah.
Will: Because I do worry. I mean, obviously this goes back a ways, but I do worry that if we say to the executive branch there are no consequences for disobeying the law, but we trust you to obey the law, that we got to figure out what to do when it's clear that trust is not earned.
Dan: Yeah. Okay. Yeah. I mean, maybe that's fair to say that the language later in the opinion where he says, “Maybe there should be. If there is excessive force, there should be remedies.” Maybe that salvages it. I guess I just didn't love the way in which it seemed to be just saying as a fact, this is the way these work.
Will: Yeah.
Dan: Rather than just saying, “Well, this is the way these are supposed to work, but maybe not."
Will: Yeah. Well. And again, the remedies have the same issue as we talked about. What remedies, is a little vague. It's not that you can't copy some, but I'd like to hear a little more about that.
Dan: Yeah. I mean, can you bring a Bivens suit for an immigration stop? I mean, is that actually resolved? I mean, you can bring a Bivens suit for the exact facts of Bivens.
Will: So, you can bring a Bivens suit for a Fourth Amendment claim that is not a new context.
Dan: Yes. Is this a new context? Immigration.
Will: Well, and then in Egbert v. Boule, the Smuggler case.
Dan: I love that. Love that one.
Will: The court said it was a new context when it was near the border.
Dan: Yeah.
Will: Now, if it's immigration related, but not that near the border, is that a new context? I don't think we know.
Dan: Yeah, totally up for debate, right?
Will: Right. Again. Although, I would think it would be a strong argument in the United States right now that it must not be a new context because Justice Kavanaugh said there should be a remedy. I've also heard people say it's really the Federal Tort Claims Act. And then you have to get into the law enforcement proviso and the discretionary function exception. I'm not sure. But you could find paths to get there. I'm not sure we're going to get there.
Dan: Okay.
Will: Okay. What else?
Dan: So, yeah, there's some other slightly less significant ones where the court is not doing something, but one of the Justices or more is interested in it. So, one that's kind of interesting is Thomas v. Humboldt County where Justice Gorsuch says basically that the court should overturn precedent and declare the Seventh Amendment civil jury trial right incorporated as to the states.
Will: Yeah, that is interesting.
Dan: That would be big. That would be huge, right?
Will: It might be big. I mean, it depends a little bit on how they do it.
Dan: Okay.
Will: But yes, if the court incorporated the Seventh Amendment, the way they've incorporated the Sixth Amendment, like Ramos v. Louisiana style, where it's exactly the same right that applies in federal court applies to the state court, that would be sort of transformative in potentially incomprehensible ways.
Dan: Which presumably is what Gorsuch would want, right? Because in Ramos, he basically savages the view that there should be a diet version of a right in state court.
Will: He does. Although, I mean, states really differ in how they've drawn the line between law and equity. The Delaware Court of Chancery, there are just incredible variation in how law and equity work across the different states. Sam Bray has a post on this, I think about cert petition on our blog from earlier this summer. And so, it's just not totally obvious to me if the court has thought through how that would work.
Dan: Yeah, I mean, it's not obvious to me how many of his colleagues would be at all interested in doing this.
Will: Right.
Dan: And it's interestingly, he seemed worried about it for his anti-bureaucrat strain of his jurisprudence. Because, he specifically talks about how, well, if you're in federal court and an agency tries to impose sanctions on you, you get a jury trial citing the court's precedent from just last term, right in Jarkesy. But if you're in state court and the administrator tries to do this to you don't have that right. So, I mean that is the thing he cares about most. It's probably that protecting people from meddlesome bureaucrats and then federal Indian law.
Will: Right. Now, I guess what I was going to say is there is at least a root to a originalist argument that might distinguish it from Ramos. So, at the founding, when the federal farmer was objecting to the Constitution, in part because it did not have a Seventh Amendment, just later added, because the original Constitution referred to juries in criminal cases, but not civil cases. And he said, “But the civil jury is just as important.” And then he says, “As I have observed before, it is the jury trial we want. The little different appendages and modifications taxed to it in the different states are no more than a drop in the ocean. The jury trial is a solid, uniform feature to free government. It is the substance we would save, not the little articles of form.” So, you could be, and it would actually be reasonable for the court to try to say something like, there's a core, the jury trial that's not every appendage and modification, and not the little articles of form, and that's what's incorporated. Now, I don't know exactly how you'd do that, but something like, “Jarkesy, that's the jury trial.” But the exact details of whether or not an accounting for profits has to be in law and equity or isn't.
Dan: Okay, there's a blueprint right there.
Will: Yeah. I think if the court incorporates the Seventh Amendment, I'm going to predict that they're going to eventually end up relying on the federal farmer. Maybe Justice Gorsuch will set it from that. But that's my prediction.
Dan: Okay, bold prediction, but a lot of steps that would have to happen before we get there. Okay, another one. Boyd v. Hamm. This is a capital case. It was emergency stay application for a condemned man who was about to be executed and who was, in fact, executed.
Will: Yeah.
Dan: But he was executed using this relatively novel nitrogen gas asphyxiation method, where they just hook you up to this gas mask, pump your lungs full of nitrogen gas, and then you suffocate and die. And Justice Sotomayor has a compellingly written dissent, the first paragraph of which is as follows. “Take out your phone, go to the clock app, and find the stopwatch. Click Start. Now watch the seconds as they climb. Three seconds come and go in a blink. At the 30 second mark, your mind starts to wander. One-minute passes, and you begin to think, ‘this is taking a long time.’ Two, three the clock ticks on. Then finally, you make it four minutes. Hit stop. Now imagine for that entire time, you are suffocating. You want to breathe. You have to breathe. But you are strapped to a gurney with a mask on your face, pumping your lungs with nitrogen gas. Your mind knows that the gas will kill you, but your body keeps telling you to breathe.”
That was quite evocative, quite powerful. And I think she writes a fairly compelling dissent there that, to the extent the Court has suggested, there is some narrow window to raise Eighth Amendment challenges to methods of execution. This was a potentially compelling such claim, where the capitol defendant says, “I'd prefer to be executed by firing squad,” and the State is saying, “No.”
Will: Yeah, no. Look, I thought that was very strikingly written. I don't have a view about the merits.
Dan: You don't have a view on the merits? You have views about everything.
Will: Well, fair enough. I don't have a view about the merits. I'm confused about the firing squad and whether he really wants to be executed by the firing squad-- [crosstalk]
Dan: Or whether it's just a delay tactic.
Will: Yeah. And how this sort of fits into the Court's made-up equity jurisprudence about when you get to bring these claims. But I will say I read that opening and I thought that was very powerful. I mean, I guess this is the point. It was sufficiently outside of the normal genre that my first reaction was, “Oh, I'm falling for some sort of weird AI fake. This is not a real—.” Because now these— [crosstalk]
Dan: You didn't believe that it was a real opinion?
Will: Like, not real opinions that people have written as if they would be. And so, at first, I had to go to the Supreme Court website and verify this indeed was written by Justice Sotomayor, which I think that's a sign that it worked at getting me to pay attention to this move. I can't think of a time since the Chief's dissent from denial in Pennsylvania v. Dunlap in 2008. It's a Fourth Amendment case that the— [crosstalk]
Dan: Is that the hard-boiled detective novel?
Will: Yes, right.
Dan: That one was delightful.
Will: Yeah, that one was a little more comic, obviously, but it was sort of a similar. North Philly, May 4, 2001. Officer Sean Devlin, Narcotic Strike Force, working the morning shift, Undercover surveillance. The neighborhood? Tough as a three-dollar stake. Devlin knew. Five years on the beat, etc.” [laughs]
Dan: I love that one. That one's in my casebook that I use in investigations.
Will: So, it reminded me of turning that one back a little bit. And obviously, therefore, to the extent that somebody in the majority like the Chief might have been annoyed with a dissent like that, it would be hard for him to get away with being annoyed.
Dan: Yeah. Although it's not written as in some literary style. I mean, it's trying to get you to really understand.
Will: It's a little bit [unintelligible [00:53:48]. “Now watch the seconds as they climb. Three seconds come and go in a blink, at the 30 second mark your mind—”
Dan: But it's not mimicking some established genre.
Will: No, but it's written in the second person to narrate to you the act of doing this, in that sense, rather than just saying, “Try this at home, turn on your stopwatch, wait four minutes. It's a long time, isn't it? Now imagine you were trying to—” It's written in a more alarming style.
Dan: Yeah. Okay, so those are the most interesting ones I wanted to talk about. There's a very short statement by Justice Alito that has Justices Thomas and Gorsuch joining it, suggesting he's interested in taking a case about whether a school district violates parents fundamental rights when it is helping a student engage in gender transition and keeping that information from the parents, which does seem like maybe a potentially compelling claim. I don't know.
Will: Substantive process is cool again.
Dan: Yeah.I mean, at least if you accept that there is some substantive due process right of parents to control the education and care of their children, which if you're looking for substantive due process rights, there are worse ones to look for. Sure, I could see it.
Will: Plenty of precedents saying, so now it's a little more. It's like the right of parents to send their kids to public school rather than private school while also being—it's a little more complicated. But, yeah, fine.
Dan: And then another one also by Justice Sotomayor. We're joined by the liberal Justices Humphreys v. Emmons, which is actually about a topic that I taught about yesterday, and I may ask my students to read this, which is about a case where someone is convicted of a crime and sentenced to death. And then we later learn about the misconduct of a juror in the deliberation room. But we have these very strict rules of evidence which basically bar any attempt to impeach a verdict on the basis of testimony about what happened during juror deliberations absent very, very narrow exceptions that do not apply to this fact pattern. Typically, like the federal rule of evidence says an exception is if there's an outside influence, like someone is threatening the jurors or extraneous prejudicial information, someone brings a newspaper in that contains information about the crime or the defendant. But just bad stuff that a juror does is not a basis.
Absent a very narrow exception the Court recognized in the Peña-Rodriguez case a little bit less than 10 years ago, where the court says, “Well, clear evidence of racial bias by a juror” that's going to override one of these. No Impeachment rules. But here what happened was it was later become clear the juror lied about her experience with a crime that affected her and then basically, supposedly bullied all the other jurors into voting for death when they were all going to vote for life without parole. I thought that was interesting. Compelling, would have been interesting to see that one.
Will: I am skeptical of these claims. I feel like it's really important for the institution of the jury to be a black box. I mean, I was skeptical of Peña-Rodriguez too, I guess. Do you have a different--
Dan: You know, when I teach this, I do say there really are competing considerations. I mean, I think to the extent you've learned that a juror has perjured herself during a voir dire process, that is extremely troubling.
Will: So, I guess voir dire process is one thing, but to the extent that we're saying, “in the jury room this juror was mean to the juror as a threatened or whatever,” that seems—[crosstalk]
Dan: I don't think, just like the person is mean, I don't think that should be the basis of a claim. I think that should be black box. I guess if we learn that the person based on voir dire lied and this person was not a qualified juror, was at least not an appropriate impartial juror, that strikes me as pretty troubling.
Will: How do you feel about the asymmetry of this rule, if somebody gets acquitted and we later learn that one of the jurors actually lied, they said that they were not a nullifier, but they lied about that to get on the jury or whatever and successfully brought everybody around. I take it you would say our double jeopardy rule should remain absolute and we can never impeach an acquittal that way— [crosstalk]
Dan: Yeah. I mean, I don't think that's really any different than it's the problem of all criminal procedure rights. Right?
Will: That they're asymmetric?
Dan: Yeah. That if there's a screw up in one direction, it's irreversible.
Will: Yeah. But it maybe makes us hesitant about developing new asymmetric—if that's built into the system, then every time we create a new form of criminal procedure scrutiny, it's going to be asymmetric.
Dan: I mean, it is not new in that it's not a new right. You do have an unquestionable—I think what you're saying is really an objection to the asymmetry of the rule that jurors be impartial, right?
Will: I mean, that the jurors have to be impartial—
Dan: Jurors have to be impartial, and that means they're supposed to be impartial in both directions. But if a juror is impartial in one direction, it can create reversible error.
Will: Yeah, well, and it's not—to the extent you fix the problem before acquittal, it's not asymmetric. So, the way you're supposed to solve this problem, of course, is you have voir dire. Both parties are there. Both parties try to figure out what's going on. To the extent that during trial you learn that a juror has lied, either side can try to disqualify them. To the extent that during deliberations, things go awry or off the rails in some way, any juror can come to the court and say, “Hey, this juror is being weird or whatever.” So that all makes sense to me.
Dan: But it can be corrected after the fact in the following way. If a judge erroneously denies a for cause challenge to a juror and allows a biased juror to be seated on the jury, then that can be the basis for overturning a conviction. If a judge erroneously denies a for cause challenge by a prosecutor and allows a pro defendant juror to be seated, that cannot be overturned. So, I just think, I'm not sure this that fundamentally that different.
Will: Well, I think it's not a coincidence that in practice we are very, very differential. Like Batson claims don't succeed very often anymore.
Dan: Yeah.
Will: In part for this reason.
Dan: Okay, so I think that's the stuff we wanted to catch up on.
Will: Yeah.
Dan: One other thing just to note is, you can't go to the Supreme Court building right now because of the shutdown. There's a big notice on the website that says “Due to a lapse of appropriations, the Supreme Court building will be closed to the public until further notice. The building will remain open for official business.” So, I think you can still attend arguments.
Will: I wasn't sure. Have we had arguments yet since the shutdown day?
Dan: I believe so. Yeah, I think we had—because it's now the end of October. The shutdown began on October 1st.
Will: Okay.
Dan: So, absolutely.
Will: So, people were there for the October arguments?
Dan: Yeah, yeah. My colleague Travis Crum was there for the Callais redistricting case, which he wrote and I helped with an amicus brief for.
Will: Yeah.
Dan: So.
Will: This is the weirdest government shutdown I can remember. The government does not feel very shut down.
Dan: Yeah. But it also just feels like we're making no progress. It just feels like this is just going to go on forever.
Will: Yeah, well, I mean, partly the administration has decided to engage in more aggressive ways of paying people it wants to pay anyway.
Dan: And getting $130 million dollar donation.
Will: To fund army salaries?
Dan: Yeah.
Will: Which I think is a violation of the Anti-Deficiency Act and the Raise Armies Clause.
Dan: It has to be.
Will: I think again, the core purpose of the Raise Armies Clause plus the two-year appropriations limitation was to put Congress in charge of deciding whether we have an army.
Dan: And not let the President have a personal army.
Will: Or somebody decided to donate enough money that I could have my own private military mercenary force. I think is the core of the suppression of powers violations.
Dan: Yeah, I can see that. Maybe that will come before the court someday. We'll see.
Will: Oh, well, I'm sure the Trump administration will get an emergency docket today.
Dan: Irreparable harm.
Will: Allowing it to go forward.
Dan: All right, well, I think that's it. Please rate and review the show wherever you get your podcasts. Share it with your friends, colleagues, bosses, subordinates, cousins, anybody, who might like the show. Always trying to grow the audience. Visit the website dividedargument.com for transcripts, blog.dividedargument.com for commentary from the larger Divided Argument universe, store.dividedargument.com for merchandise. Send us an email pod@dividedargument.com or leave us a voicemail, 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring our endeavors. But special thanks as well to the University of Chicago Women's Board, which has issued us a grant to support this podcast this season because of our promotion and support of civil discourse across partisan lines, which we're very grateful for, will actually probably let us push out, expand the show a little bit. So, I'm excited about that as well.
Dan: I'm grateful as well. But if there is a long delay between this and our next episode, it will because of the lapse in appropriations that we have somehow been shut down along with the rest of the government.
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