We cover many developments -- Justice Alito's unusual interview in the Wall Street Journal, the release of Justice Stevens' papers, more news on Supreme Court ethics, as well as a new cert. grant on the Chevron doctrine, the mifepristone shadow-docket ruling, and still more jurisdictional news in Moore v. Harper. But first -- an anonymous caller drops a new voicemail song.
We cover many developments -- Justice Alito's unusual interview in the Wall Street Journal, the release of Justice Stevens' papers, more news on Supreme Court ethics, as well as a new cert. grant on the Chevron doctrine, the mifepristone shadow-docket ruling, and still more jurisdictional news in Moore v. Harper. But first -- an anonymous caller drops a new voicemail song.
[Divided Argument theme]
Will: Welcome to Divided argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Will, I think we should just skip the initial chitter-chatter and just get right to it. We got a voicemail on our voicemail line. You all have to hear it. Let's play that right now.
Voicemail Caller: [in a singing tone] The founding fathers of our state. Three separate branches did create. A power balance to instate. From tyranny to insulate. Sometimes a wolf slips past the gate. Dressed as a sheep. That isn't great. This wolf comes as a wolf. There's just one chief executive. In the White House he does live. And high appointments he may give. Removals his prerogative. This wolf comes as a wolf. The branch led by our head of state. Has power to investigate and prosecute the crimes we hate. When Congress tries to abrogate. That power, it's beyond debate. This wolf comes as a wolf. I fear that the majority. Fails to protect our liberty. You shouldn't just take it from me. Many scholars will agree. And Congress too will come to see. This wolf comes as a wolf.
Will: Wow.
Dan: I've got a lot to say about that, but what are your reactions? I'm the keeper of the voicemail box, so you have to rely on me to give you this stuff.
Will: Wow.
Dan: Thoughts?
Will: That's amazing.
Dan: Yeah, lots to say about it. First of all, don't know who it's from. The sender seems to have actually blocked their caller ID, so I have no idea who this is from or even what area code their phone is registered to. So, that's a mystery. Clues, that is set to a hymn. I don't know if you picked up on that. Well, I don't know if you're a big-- [crosstalk]
Will: I'm not a big hymn guy.
Dan: Yeah. I checked in with a friend of the show and your coauthor, James Y. Stern, of William & Mary. And within about 45 seconds after listening to it, he identified it as a hymn from the 19th century known as Creator of the Stars of Night that I have listened to and I think is correct melody wise. That hymn in turn is apparently based on a 7th century Latin hymn, Conditor alme siderum that is used during Advent. Don't quite know what to make of that. I think it is consistent though this is obviously spinning off of the discussion we had over the last couple of episodes about conservatives who at a Scalia event, did or did not ritualistically chant along with him as he was reading his descent in Morrison v. Olson. Now, this has been transformed from just kind of a chant at a book signing into a real kind of religious chant style hymn.
Will: Just to make sure I'm following the plot here, this seems like an original creation though. You don't think there's some secret Scalia chanting club that I've never been invited to that has been singing this hymn for 20 years?
Dan: I don't know. I have no information on this. I wouldn't have been told about it.
Will: Well, I wasn't told about it either. The lyrics, some of those are word-for-word quotes from Morrison v. Olson, and some are not. Some are just--
Dan: He did not actually write the dissent in rhyming triplets or whatever those are.
Will: It's not like a found poem where it's made entirely only of word-for-word quotes.
Dan: That would be cool-
Will: It's cool.
Dan: -but someone wrote this. I don't think this was written by ChatGPT, I hope not. Someone took the time to write that song. But it captures the moving arguments of the Morrison dissent.
Will: Yeah. No, people should play this song to their common law classes.
Dan: I might. I just might next year.
Will: I don't actually teach Morrison v. Olson anymore, but if I did--
Dan: Why because you don't think it's the law anymore?
Will: Well, yeah, and I only spend one day on the [unintelligible 00:05:30] executive problem and so you've got to make choices.
Dan: Because you think it's an easy problem?
Will: No, the opposite. I spend more time on the Impeachment of Andrew Johnson because I think that's important. But this is making me rethink that.
Dan: You could just teach the song instead of actually having to read the case or anything.
Will: No, because I have to summarize the case and put it in-- Yeah, I'm tempted to just-- I used to play Hamilton songs in common law, but I stopped doing that once it was clear that was was going to be very square rather than very cool. And this is way cooler.
Dan: Maybe it'll come around the backside on that again. Okay, so listeners, react to that. Give us your thoughts. We will--
Will: Author of that, take credit. Feel free to--
Dan: Yeah. We are suckers for the songs. So, this is our second song. I'm hoping this can be a recurring bit on the show.
Will: Do you think this song is better than the previous song or is it unfair to compare them? I like that I'm not the butt of this song.
Dan: I think they're just different. I don't want to criticize either of our song makers because I don't want to discourage people from coming forward. The first song was the one that got the ball rolling and really made this whole song thing possible, so it's kind of hard to criticize.
Will: Yeah.
Dan: But that was really good.
Will: Yeah.
Dan: I don't think we're going to be able to top that. So, should we just end the episode there?
Will: Ah, tempting.
Dan: Okay. I guess you're not going to let me do that. I think this is just going to be kind of an odds and ends episode. We don't have any one big thing to talk about, but we have a bunch of other things that happened in the last week or two. Where to start? Maybe you want to start with-- maybe the spiciest thing is Justice Alito's interview with The Wall Street Journal?
Will: Yeah.
Dan: I assume you read this.
Will: I sure did, Dan.
Dan: Justice Alito, I'd say he was unguarded in this interview. Is that a fair adjective?
Will: I'm not sure if that's true.
Dan: You think he was guarded?
Will: I think this is him guarded. Come on, Dan. [chuckles]
Dan: Well, he was unguarded relative to how a Supreme Court Justice usually deals with an interview. Lots of stuff that he said that is eyebrow raising.
Will: Should we start with the most headline grabbing?
Dan: Yeah. I don't even know which one that is. I think you mean the thing about the leaker?
Will: Yeah. He says he knows who the leaker is.
Dan: Yeah. He's talking about the investigation. He says the marshal did a good job with the resources that were available to her, and agrees that the evidence was insufficient for a public accusation. "I personally have a pretty good idea who is responsible, but that's different from the level of proof that is needed to name somebody." He is also certain of the motive. It was part of an effort to prevent the Dobbs draft from becoming the decision of the court. That's how it was used for those six weeks by people on the outside as part of the campaign to try to intimidate the court. He kind of rejects the--
Will: False flag.
Dan: Yeah. The idea that this is a leak by the conservative side, he kind of rejects that as absurd.
Will: Yeah.
Dan: That was kind of a bold thing to say. I'm surprised that he said it. I'm not surprised that there is a possibility that there is someone who is known as the likely leaker. That doesn't surprise me because there was a certain flavor of that in the marshal's report, I thought. Talked about how we just didn't have stuff to meet the evidentiary standard to feel comfortable.
Will: They made a lot of the evidentiary standard and that implied the standard was doing some work.
Dan: Yeah. This pushes me toward thinking that the suspect is more likely to be a clerk. If it were a member of the permanent staff, that person, even if they couldn't prove it beyond by preponderance of the evidence, presumably that person would have been fired.
Will: Maybe they have.
Dan: Maybe they have.
Will: What if there's a member of the permanent staff who is widely suspected to have done a leak, in any case, did some other things they shouldn't have done? Like we learned about some other kinds of general security problems with the court from the investigation, so they could be fired for some other reason.
Dan: Yeah. Maybe that person would then go public. I don't know.
Will: I don't know. Maybe they will.
Dan: Yeah.
Will: Maybe they want a new job.
Dan: Yeah.
Will: So, what about the Justice theory? Does this I mean, if you thought it was another Justice and you were annoyed with them and wanted to throw a shade at them, is this the way you would do it? I don't have that theory. I just--[crosstalk]
Dan: I don't know. If it were a Justice, I don't totally know how and assume that-- some people are saying he's not telling the truth, whatever, but let's just take this for the moment.
Will: Flag theory continues.
Dan: The false flag. I don't know how the marshal's investigation would have uncovered anything to point the finger at a Justice, especially given that the questioning of the Justices did seem to occur, but it was not very substantial, as far as we can tell.
Will: Right. Although that could be what is meant by a good job with the resources that were available to her, that could be saying. I think we have a bet riding about whether we're going to find out who the leaker is. Does this make you think it's at all more likely or not really?
Dan: Well, I mean, by preponderance of the evidence. Wait, hold on. What was our bet? I don't remember the terms.
Will: I'd have to go back and listen.
Dan: We have an ongoing bet for all time?
Will: I think I had a deadline of a year or something.
Dan: It's been a year. Someone bet me last year that it was going to be by the summer, and that completely did not happen. It's bold to say that there's this investigative process. They weren't able to come with an answer, but that I'm going to go around saying, "I know who did it." I'm not sure that's prudent or wise.
Will: Okay.
Dan: It serves only to gin up speculation. Is that helpful to the public to be told that Justice Alito thinks he knows who did it? Does that help the court's image? Why is that good for that to be disclosed?
Will: All right. I guess it's always my job to do this. I think the case--[crosstalk]
Dan: It is. That's what Leonard Leo pays you to do to be on the show.
Will: You know I've never met Leonard Leo?
Dan: [laughs] You've just seen his silhouette in the smoke-filled room, barking orders.
Will: Don't think he even knows who I am.
Dan: He knows who you are.
Will: I very much doubt that.
Dan: You don’t believe he doesn't know who you are.
Will: I really don't believe he knows who I am.
Dan: I don't believe that you believe that. If you believe that, that's ridiculous.
Will: I would be profoundly shocked if he knew who I am. There's one image of the court is it's like hapless and incompetent and there was this leak, and they're so vulnerable, I think we maybe even have an episode calling them a soft target.
Dan: Yeah.
Will: If the actual truth is, actually it's pretty clear who did it, but not clear enough to justify the kind of tarring and feathering that would occur if that person would be publicly named. The court is erring on the side of caution, especially if they've fired the person or whatever, and are handling it internally. Maybe that makes them look more competent, responsible. Maybe Justice Alito is just saying that to make the court look good.
Dan: It seems like it does not make the court seem more competent to have individual members of the court dropping crumbs about the details of the investigation. It seems like that should come from once there is an official investigation in place, the court and the investigation should be the one having the information.
Will: Sure. Should Justice Alito be giving an interview to the Wall Street Journal? I'm not sure. This is kind of an opinion dynamic, I feel like though too, where the court will write an opinion and there'll be a bunch of points the court doesn't make, or responses to dissent the court doesn't make, and then Alito will write a concurring opinion saying another thing and another thing and another thing. So, maybe this is Alito's concurring opinion to the marshal's report.
Dan: He should have done that in a more-- I don't think they're doing that. I mean, you're not supposed to do the concurring opinion by talking to a reporter.
Will: I bet they wouldn't have let him publish a concurring opinion if he'd wanted to at the time.
Dan: I mean, if he had said, "I want you to put this on the website," I don't know if they would have stopped him.
Will: I don't know, really. I guess they let Breyer publish a dissent from the closing of [crosstalk] [chuckles] so it's kind of over. All right, fair enough.
Dan: Gosh, there was some other interesting stuff in here. He talks about kind of the protests against the Justices in connection with Dobbs. He says he's driven around in what is basically a tank now, has round-the-clock security. He's gestured at in other comments, which he's saying, "Oh, gosh. People are criticizing the court in a way that's really unfair and that's really unprecedented. We're being attacked." This part, I have a lot of objections to, in the sense that, first, to the extent that he's trying to paint this as kind of historically exceptional. I think that's probably wrong. I think the court has been--
Will: He says "new during my lifetime." Do you think it's not new during his lifetime?
Dan: I think it's probably not new during his lifetime. He was born in 1950. I recall there being some interesting cases that were decided in the kind of 1950 onward, mid 60s period. Am I wrong about that?
Will: Well, I think you're right there with some cases, Dan. I think he's probably thinking of that but I think what he's saying is-- so he says, "The idea has always been the judges are not supposed to respond to criticisms. But if the courts are being unfairly attacked, the organized bar will come to their defense. Now, if anything, they've participated in some degree in these attacks." And so, there were signs. There was an Impeachment of Warren thing.
Dan: That's not what he's saying though. He's saying, "This type of concerted attack on individual Justices is new during my lifetime." He has this other thought about how it's too bad that the bar isn't defending us.
Will: It's in one paragraph.
Dan: With some ellipses in between.
Will: I think what makes this new and maybe this is not what he meant. Maybe I'm being too kind to him, is that the idea is like during the Brown era, of course people attacked the court, but Earl Warren didn't have to go around responding to the attacks, because there was a sense that the institutional bar would do so.
Dan: Neither does Alito. He doesn't have to do this. He doesn't have to go talk to the Wall Street Journal.
Will: Right. I think he's saying that norm was part of an institutional context. The court doesn't respond to attacks if the organized bar will have their back. If the organized bar doesn't have their back, that's fine. But then, Justice Alito gets to defend himself. It's like you can't both take away the institutional protection and then get mad when people engage in self-help.
Dan: I think I'm not getting mad that someone engages in self-help. I just think it's [unintelligible [00:16:24] at the notion that-- it conveys a certain sense of entitlement. Like, "Gosh, who are people to be criticizing us for what we're doing? We're the Supreme Court." I think that, look, they do things that profoundly affects people's lives in ways that are deeply shaped by politics, and you exercise a huge amount of power, you're going to get criticized. Stop whining about it.
Will: I think you're overreading. I think Justice Alito's critique is narrower in two ways. I think he's mad about being unfairly criticized. He thinks the criticisms are wrong. Justice Alito has always had this concern with kind of expecting one side to tie their hands behind their back while the other side is not bound by norms. That's his whole shtick. He'll say, "Oh, you want me to engage in judicial restraint, while the other side is not engaged in judicial restraint. Why would I do that? You want me to protect the free speech of animal crush videos while you're not willing to protect the free speech of Hillary Clinton haters." I mean, he made an explicit claim there too. He said, like, "Look, it used to be the norm was we protect a bunch of free speech, but the left abandoned that. So, I'm abandoning it too."
This is just exactly the same shtick. It's saying the norm is that Justices are not supposed to talk to The Wall Street Journal. "That norm was contingent on the organized bar being responsible. If you guys are not going to be responsible, I'm not either." And I don't think he's mad. I think he's probably excited.
Dan: I don't know if he's excited. I do not think these entire remarks are about whether it's appropriate for him to talk to The Wall Street Journal. I think they're about the actual criticism that he thinks is unfair. He's mad that people are saying stuff about the court being illegitimate. And he's like, "Well, that's your problem, because you're the one saying it, and that's making it true." My response is, "Okay, but what if the court is actually illegitimate, doing really bad things, all sorts of reasons to object to how they're exercising power?" I think what he wants is just to be able to exercise raw power and then have no one criticize him for doing so. I just don't think that's the way it works.
Will: Maybe I'm reading myself into this. I think he thinks that having disagreements on the merits are totally fair. But there's this tendency, and I do think it's a little new, at least in my lifetime, to level up your merit's critiques, to also be like a metacritique. It's like the court is not just wrong in Dobbs. It's illegitimate. It's not just wrong, it's illegitimate. I think he thinks that inference is unjustified, and we should just argue about who's right and wrong about Dobbs.
Dan: But people could be right that it's illegitimate.
Will: They could be. I don't read him to ever say in here that if the court is illegitimate, you shouldn't say so.
Dan: Well, he says it's bad to undermine confidence in the government.
Will: He just says it undermines confidence in the government.
Dan: When you say that the branches are illegitimate, any of the three branches of government, you're really striking at something that's essential to self-government. I think he thinks that's bad inherently.
Will: I think he thinks that's strong medicine. There's nothing in there that denies that if the branches are in fact illegitimate, that it's worth the strong medicine of--
Dan: There's nothing there that endorses that either. You're welcome to read in all the reasonable caveats and stuff to what he's saying if you want. That's fine.
Will: From his point of view, it's a weird hypo. If somebody threatens to kill the President, you could say, in general, it's bad to threaten to kill the President. You're like, "Well, what if the President is an evil axe murderer?" I'd be like, "Well, yeah, that'll be different." I can just talk about how it's bad to threaten to kill the President without indulging the evil axe murderer hypo.
Dan: I guess. But I think that when you're responding to your critics, you need to actually explain why they're wrong. The thing that he seems to be saying is this criticism is unfair, and it's wrong of them to call us illegitimate.
Will: I think he's already defended himself on the merits, so I think he's explained why he thinks the critics are wrong and all the opinions.
Dan: And he defends Justice Kavanaugh. He says after Justice Kavanaugh was accused of being a rapist during his Senate confirmation hearings, he made an impassioned speech, made an impassioned scene, and he was criticized because it was supposedly not judicious, not the proper behavior for a judge to speak in those terms. I don't know if somebody calls you a rapist, which is interesting. I think that's-- is that the first time we've seen somebody on the court explicitly talk about that, talk about Justice Kavanaugh's demeanor at that hearing, which I certainly found disturbing.
Will: I don't remember seeing anything like that. He does, by contrast, when asked about the ethics accusations against Justice Thomas, he says, "I'll stay away from that."
Dan: Yeah, that was interesting, that he comes to Kavanaugh's defense, but not Thomas'.
Will: Yeah.
Dan: What do you make of that?
Will: I guess the statute of limitations has run or something. [chuckles]
Dan: Well, why not say that?
Will: Well, they do say he does address a less recent drama, so maybe that's what he was saying. That's like old news. I don't think Justices should talk about the confirmation process, I guess. Again, I don't necessarily subscribe to the Alito theory of tit for tat norm violation.
Dan: That also seems to be not just a rule about norm violation, but a principle of legal interpretation. It seems like he uses those as arguments on the merits for why a particular argument is right because you on the other side didn't do this other thing, therefore we went--
Will: I think it's still norms, because, of course, legal doctrines are part shaped by norms. I think he uses-- it's like in Gundy, he'll say, "The law requires X. Now, you want me to do something unusual to indulge or not indulge stare decisis, that's more of a norm." Well, that depends on whether you're willing to indulge or not indulge stare decisis. You want to make an originalist argument in this case and have me take it seriously? Well, it depends on whether you are willing to make originalist arguments-- [crosstalk]
Dan: I guess that shouldn't be right if the argument should actually just be evaluated in its own terms, right?
Will: This is actually a more profound question of legal theory. It depends on where you think these doctrines come from. If you think that the Constitution is the law but then there are some norms like stare decisis and deferring to your colleagues and trying to find common ground that in some cases, as a judge caused you to put aside, like the first best law, then it's not crazy to say.
Dan: Yeah. But engaging with the originalist argument, shouldn't that either be-- to Alito, that's either a right argument or a wrong argument? How can it depend on whether what positions the people advancing the argument have offered in the past?
Will: I don't think Justice Alito is right in Janus to refuse to indulge the originalist argument that Eugene Volokh and I made in amicus brief. We have principles like estoppel where we say, "You made the opposite argument in the past."
Dan: Why are other Justices on the court estopped? It doesn't make any sense.
Will: Sorry. In Janus, it's the parties. He's saying, like, "You the union made anti-originalist argument in amicus brief 17 years ago, and therefore you aren't allowed to make originalist arguments now."
Dan: That's preposterous, right?
Will: That is not my preferred form of estoppel, but I'm just saying.
Dan: That's preposterous that a party is bound for all time by the interpretive theories that advance in briefs in different cases.
Will: I mean, I agree, but I feel like I just read articles saying like, "Well, the originalists may have an originalist argument in this case, but they're not making it in good faith because they didn't make an originalist argument in this other case. And therefore--" and sometimes the argument goes and therefore--
Dan: Criticism someone's making from the outside to say, "Look, they're not advancing these things in good faith." Fair enough. He could say to the people, "You're not advancing this argument in good faith." That doesn't relieve you of the obligation to evaluate the argument on its own merits.
Will: I think sometimes people make that argument as if it should be a response in the merits of the individual case. Now, if we both agree that it shouldn't be, I think we can say you shouldn't be able to criticize Dobbs on the bad faith grounds. It might be that Dobbs is correct and in bad faith, but it being in bad faith doesn't is irrelevant to its correctness. That'd be fine.
Dan: Okay. Is there anything else we want to pull out here?
Will: No. Those are the highlights.
Dan: Oh, he talked about a pending matter. He talked about shadow docket stuff. I'm surprised you didn't want to talk about that. He says, "All these applications are a nuisance. They are very disruptive. But what are we supposed to do? The last administration brought a lot to us because a lot of its programs were enjoined. This administration is doing the same thing right now." The Solicitor General has said she's likely to file an application here to stay the Fifth Circuit's order in the case involving the mifepristone, however you pronounce that word. The Journal helpfully notes it's mifepristone, an abortion drug that the lower court had said violated the FDA, had said the FDA erred in approving. He's like, talking about how he's going to deal with it. He's like, "Oh, I've got sitting next week and we have arguments we have to prepare. But when this thing comes in, I'm going to have to put all that aside and deal with it." I thought it was a little weird to be talking anticipatorily about a shadow docket filing that's about to be brought to the court. That seems a little dicey.
Will: I think that's quite improper.
Dan: Okay. All right. Forging some consensus.
Will: Yeah.
Dan: Okay. So, Alito interview, improper. Next topic. Oh, I'm just going to sneak this in. This would be a great time for you to go give us a rating and a review on the Apple Podcast app or wherever you get your podcasts. We still are trying to expand the listenership of the show and we've got a good number of positive reviews on there, but we could use some more. I note that for a very long time, were cruising at a 4.9/5 average. Somehow, we've been brigaded by haters and we're now down to a 4.8. If you could help us tick that back up, I think we'd all appreciate it. Sorry, just wanted to get that in before. We always do that at the end and by which point people have kind of stopped listening. So, I thought we should get that in now while we're still talking about kind of exciting stuff.
Here's another big one, the bigness of which I think is going to take weeks or months to kind of unfold, which is that Justice Stevens from beyond the grave has released a huge chunk of his papers earlier this week. Not all of them. He released his papers going through-- I think is it 2004--
Will: 2005, I think. Right up to when the Chief and Alito [crosstalk] it seems like. Why is that the date?
Dan: It's a little unclear because Justice Thomas includes a bunch of-- I mean, all the other Justices who were on the court during that time period have left the court, but for Justice Thomas.
Will: Yeah.
Dan: So, he doesn't seem to care about that.
Will: Yeah. I mean, maybe Justice Thomas doesn't care, I don't know.
Dan: Yeah, but these were the terms that he set. The rest of them become available in seven years in 2030. There's a ton of big stuff in here. Bush v. Gore is in here. Casey is in here. When these papers come out, it's not just like the Justices own internal documents. It's correspondence that was sent between different chambers.
Will: Although I think Casey was already in the Blackmun papers because Blackmun was still in the court for Casey.
Dan: Yes, that's true. I think that sometimes there are memos that are not circulated to everybody.
Will: Yeah, no, and some Justices keep more stuff than others, although Blackmun kept a lot. I just think the big fines are going to be everything in the post Blackmun, pre--
Dan: Yes. That's fair. New York Times, Adam Liptak, friend of the show, has an article on this where he went and found some stuff. And he found a 1992 memo from Justice Kennedy about Casey that was sent to Justice Souter and then cc'd to Justices O'Connor and Stevens. So presumably, that wouldn't have been in the Blackmun papers if it was only sent to those recipients. This memo contained Justice Kennedy's late-night musings about the case. Sort of trying to think about how to respond to the Chief Justice Rehnquist dissent, accusing the court of letting public opinion shape its work.
Will: Why do you think it doesn't go to Blackmun, actually?
Dan: I haven't seen a copy of it.
Will: That's four of the Justices of the five Justices in the majority.
Dan: Yeah, I have no idea. Maybe it does and it just wasn't stated in the article, but it says it was addressed to Justice Souter and copied two Justices, O'Connor and Stevens.
Will: Yeah. Okay.
Dan: So, I mean, who knows? I don't know what the relationship was between Justice Kennedy and Justice Blackmun. I genuinely don't know. I never spoke to them about it. Maybe they were close, maybe they weren't. Maybe there was something weird going in the case. I don't know. These records, unfortunately, are not digitized at the moment, so we're kind of just relying on people like Adam to go down there and pull some out and to quote them and to tell us about them. So hopefully eventually, they will get scanned. There's a lot of records that I've used on the court just for 30 years, just in this chunk of documents. This is like 1975 to 2005.
Will: Liptak also reported, and I think I saw this elsewhere, some of the things from Bush v. Gore, including a complaint from Justice Scalia about the tone of the dissents. [crosstalk] That he was, "The last person to complain. The dissent should not be thorough and hard hitting," but then he complains anyway.
Dan: Yeah. I found that in life generally, the kind of bullies are often the people with the thinnest skins. The people who criticize others the harshly are most likely to kind of respond the least well to criticism. So, that was kind of interesting. Has a certain amount of the Alito, "Why are you criticizing me?" grievance feeling to it too?
Will: It does. Although I will say the substantive point Scalia makes theory is also the same as the Alito point, which is the dissents are lamenting the institutional cost that's [unintelligible 00:30:02] on the court while contributing to it, which I think is totally legit. You're allowed to both decide that on the merits, you've got to do what you've got to do and then be upset about the situation.
Dan: Yeah, but if you think that the court is demeaning the institution by doing something that's a travesty, is the principle that just for the good of everybody, you're supposed to just pretend that's not true?
Will: No. I think in both cases, the right lesson, even if it's not what Scalia would say, is just focus on the object level question. Don't pack the courts because they're illegitimate. Pack the courts because they're striking down gun laws that they shouldn't strike down or whatever, because the legitimacy is a byproduct of the discourse. The real question is the substance.
Dan: But it could be. There could be substantive arguments for why they're illegitimate.
Will: There could be.
Dan: What if the President had assassinated five Justices and put his stooges on the court? I think you should say it's illegitimate and not just be like, "Oh, their opinions aren't blue booked," or whatever.
Will: I mean, there's a lot to that hypo, like how are these people being confirmed and how are they ruling.
Dan: Yeah, I don't have time to--[crosstalk]
Will: Make some recess appointments. [laughs]
Dan: Sure. Or he has guns in the upper chamber of the Senate or something.
Will: Anyway. Yeah. This is one of those times I wish I was a stereotypical law professor who just had a free summer to go to DC and just start digging through the papers and see what I could find.
Dan: Someday.
Will: Yeah. When my kids are growing, and my papers are all written.
Dan: Once you have accomplished what you intend to accomplish with originalism, once you've persuaded everybody, then it'll be time for you-- [crosstalk]
Will: James Madison--
Dan: -different pastures.
Will: James Madison kept these private notes of the Constitutional Convention that we now rely on to know what happened in the Constitutional Convention. He, for a long time, was not-- for decades, he didn't publish them. He has this cute letter where he says he's going to wait to publish them until all of the Constitutional ambiguities have been resolved, which he anticipates will be in his lifetime. So, it's sort of the same thing.
Dan: We'll see. Okay. More interesting stuff, and all in the vein of a lot of stuff related to what Justices are doing in public with what we're allowed to know about the public scrutiny. So next one, Chief Justice Roberts sent a letter to Senator Durbin, who's the current chair of the Judiciary Committee, declining an invitation to testify.
Will: We talked about this invitation in the last episode, right?
Dan: Did we already talk about--? We didn't talk about the response.
Will: The invitation was out.
Dan: Yeah. He writes a fairly curt one-page response where he basically just says, "Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence." He goes and he finds this has only happened two times. Once in 1921 and once in 1935, just involving routine matters of judicial administration. Chief Justice Rehnquist appeared before a couple of House Committees on mundane topics.
Will: Notice that to get to this to have only happened twice, it has to be testimony by the Chief Justice, not an Associate Justice, like Breyer and Scalia testified 10 years ago on matters other than appropriations or nominations. That's also happened, and before a Senate committee, because actually, there are several for a House Committee. So, that's some good lawyering right there.
Dan: Yeah. So, basically, "I'm too important to do this. This is not for me."
Will: Well, the last part of the paragraph, which has raised my brows, is he then analogizes himself to the President.
Dan: Yeah.
Will: Congressional testimony from the head of the executive branch is likewise infrequent. According to the United States website, no President has ever testified in front of the Senate Judiciary Committee, and only three Presidents, 1860, 1919, and 1974, have testified before any congressional committee. So, I take it the implication is the Chief Justice is kind of like the President.
Dan: He's the President of the judicial branch, I guess.
Will: Yeah. Although Article 2 vests the executive power with the President. Article 3 vests the judicial power, not in the Chief Justice, but in the Supreme Court and in the lower courts if they're established. So, a little different.
Dan: Yeah. Someone told me the other day that-- pointedly in the Chief Justices of recent history have always been very proud of that title, Chief Justice of the United States. Someone told me that was actually not what they were called until the 20th century because that phrase is not in the Constitution, that there was some point at which they were just called Chief Justice of the Supreme Court, and then at some point, there was some statutory change making the person the Chief Justice of the United States.
Will: I think I read that as well. I thought it was the late 19th century that it changed.
Dan: Maybe, but either way--
Will: But the Constitution does refer to the Chief Justice, right?
Dan: Yes, but it doesn't say the Chief Justice of the United States.
Will: It says the Chief Justice of what?
Dan: It just says the Chief Justice. It just says, "When the President of the United States is tried, the Chief Justice shall preside."
Will: Yeah, I kind of like the shortness. I kind of like the official title is just the Chief Justice.
Dan: It also says, "When the President of the United States is tried, the Chief Justice," not the Chief Justice of the United States. So, by implication, maybe he's not the Chief Justice of the United States.
Will: Uh, maybe. Or maybe they just thought that "of the United States" would be redundant. I mean, this is also like the point that the Constitution doesn't refer to the judges of the Supreme Court as Justices other than that phrase. The Appointments Clause talks about the judges of the Supreme Court, and the judges both of the Supreme and inferior courts.
Dan: Yeah. It's in Article 2 and Article 1. So, he's not going to do it. I guess not terribly surprising. I could see it going the other way. Obviously, this has not been a great few weeks for the court and you can agree or disagree about the extent to which some of the criticism of the Justices is fair, unfair. In terms of how this is playing, I think it hasn't been a great stretch for the court. You could imagine Chief Justice Roberts wanted do something to kind of cool things down. On the other hand, it would be a kind of a no-win proposition for him. It's going to be a political spectacle.
Will: Yeah. Showing up on their terms to mostly get yelled at seems tough. We know from some leaks, I guess we talked about previously, that the Justices themselves have some kind of internal division about these things, which might make it especially tough to go as the agent of the court, and when you go and try to manage all that. That's why I do think he did something here that I actually think is quite nice, which is he also attached a five-page document that I think is new. It must be pretty new because it's signed by Ketanji Brown Jackson.
Dan: I mean, we've seen some stuff like this in earlier decades where there have been statements put out about how Justices are going to handle certain kinds of conflicts for recusal purposes, but I don't think we've seen this full document. It's called a Statement on Ethics, Principles, and Practices. It's got an appendix, so you're kind of giving them too much credit by saying five pages. The actual substantive content is about three pages.
Will: The appendix is still written by the court. It contains their own statements about what-- yeah.
Dan: It describes the various rules and so forth that apply to the Justices and govern lower court judges and so forth. But yeah, it is signed by-- at least it has the names of every current Justice in the court beneath the main text of the document, including Justice Jackson.
Will: It says that all the current members of the court subscribe to these principles. That's what the Chief says in his letter.
Dan: Yeah. In terms of those principles, they mostly don't seem super confining. What did you get out of here that isn't already kind of covered by the law? There's more concrete stuff about how much money they're allowed to get for teaching, stuff like that. I thought that was not a thing that they're just doing on their own.
Will: Right. Well, I take it the part of the controversy is there are a bunch of statutes out there that govern judges, and there's some question about which of these statutes the Court thinks applies to it. If you wanted to regulate, for instance, that's what the appendix is about. It's to show the Justices comply with the Ethics and Government Act. No, they comply with the substance of the regulations under the Ethics and Government Act, maybe not the whole thing. They comply with the substance of the Federal Gift statute. They comply with the Foreign Gifts Act. So, I take it that's part of what you get out of this. It's just like, how do we stand in relationship with the various legal provisions?
Dan: Yeah.
Will: They don't view themselves as bound by the code of conduct for judges, but they take guidance from it, etc.
Dan: Is there a document associated with this, this 1991 resolution of the Court to follow the substance of the Judicial Conference regulations?
Will: I think we've seen that before.
Dan: I think we've seen that, but I don't have it at hand.
Will: Yeah. I mean, I will say this is-- if you were setting out to create a bunch of regulations for the court, this might be what you would want them to do. This might be what the regulations would look like. Maybe you want to be a little stricter, I'm not sure.
Dan: I mean, it clearly doesn't persuade the criticisms. It doesn't really talk about some of the things that have come up more recently.
Will: Right. It may help focus the conversation on, is the problem that we need additional principles? Is the problem that the Justices are not being true to these principles? Is the problem that we just need a more trustworthy arbiter? We don't know if the Justices are being true to the principles or not because we don't trust the Justices to apply the principles to themselves. It could be any of those. It could be all of those. It could be some combination. But I do think getting in one place kind of the principles that the court currently purports to apply is actually just a usefully grounding exercise in answering that question if you're one of these people who thinks the court needs more ethics reform, which I don't.
Dan: Okay. Related picking up the threads, there been a couple pieces recently about the relationship between individual law schools to the Justices, and particularly New York Times has a piece about George Mason. George Mason is a public law school. The Times was able to get a bunch of documents through whatever the state version of FOIA is. That is about the kind of people there kind of strategizing about how to get the conservative Justices there. George Mason is now Antonin Scalia Law School. They're trying to build a brand as the place where conservative Justices hang out. An ABC piece about Notre Dame, which has taken a somewhat similar strategy to try to get the conservative Justices to hang out and build relationships.
Will: Is it the monkey's paw when you make a wish and your wish is granted, but in a dark way that's the opposite of what you had in mind?
Dan: I think so, yeah.
Will: I think in the last episode, I think I said that we ought to focus more on law schools and we're worried about these gifts and relationships to the Justices, and that's where we it all began.
Dan: You thought you were aiming at liberal Harvard law professors trying to influence Justice Kennedy.
Will: Let's just note. One former Supreme Court Justice is currently a, I think, tenured academic law professor at a law school, not on the basis of his body of academic work. That's Harvard and Justice Breyer.
Dan: I don't know [crosstalk] someone told me he's actually technically not a tenured position, but he is [crosstalk] but I'm uncertain about that.
Will: Great. Maybe he's just a professor of practice or something. Regardless, he's on the payroll. A former dean of that law school is another Supreme Court Justice. That law school or that university has a major case before the court from which nobody other than Justice Jackson has recused despite their many relationships to the institution. I'm fine with all that, but I didn't see that mentioned in these stories.
Dan: Yeah. So, you think that they're unfairly picking on these conservative law schools for trying to follow the strategy that basically, the mainstream law schools have done all along? [crosstalk]
Will: I'm willing to give The New York Times more credit. I'm willing to think maybe they're picking on George Mason because it's subject to FOIA. Maybe if they've been able to FOIA NYU and learn about Justice Sotomayor gallivanting around Scotland, they would have run a story about that too. But I do think there's a profoundly misleading narrative created by these stories.
Dan: Because I think every law school that thinks it has a chance of getting Supreme Court Justices to come does some of the strategizing.
Will: I don't think Justice Kavanaugh gets invited to Harvard and Yale right now.
Dan: I think right now he does not.
Will: Yeah, so I don't think it's the case that every law school the chance to get a Supreme Court Justice does this.
Dan: No, I'm just saying every law school that has a chance to get a Supreme Court Justice who would bestow honor on the institution. I'm just saying that schools like this because it's prestigious and because it looks good to donors and students and stuff like that. It makes sense that we're seeing this just as we're seeing this division of the legal community into these totally two separate ideological spheres that's also happening at law schools where these are a couple successful, conservative law schools. They're going to bring the conservative Justices into their orbit.
Will: I think the Mason story notes that they've also had Kagan and Sotomayor there, and Kagan has said nice things about Mason, and of course, they're in the DC area. I think if you look at the [unintelligible [00:43:50] survey of the politicization of law schools, I think Mason and Notre Dame are both split between conservatives and liberals at most, and maybe even--
Dan: Student wise and faculty.
Will: I think faculty.
Dan: Yeah, but they're clearly the strategy the school is taking is embracing conservatism.
Will: The strategy they're taking is not engaging in-- I mean, they're named the Scalia School of Law. They're taking the strategy of actually having viewpoint diversity. It seems a little weird in a world where the Harvards and Yales of the world decide to allow the students to blackball Supreme Justices on ideological grounds, then complain that the Supreme Justices went to the schools that would have them.
Dan: Yeah.
Will: I find the [unintelligible 00:44:31] sort of breathtaking.
Dan: Last time, you were saying, "Oh, well, we can't disentangle Supreme Court Justices accepting hundreds of thousand dollars of free gifts from private citizens, from being invited to go speak at universities." You said, "Well, I think I can disentangle that a little bit." I do think that exactly figuring out why this is so bad, it's not totally clear to me. I'm not totally persuaded. There's some stuff in there that it seemed little bit kind of neither here.
Will: Yeah. These also collapse different things. One thing is sometimes the law schools effectively pay the Justices a lot of money, more money, more effective money than they're allowed to by letting them teach in a palazzo in Italy or whatever. I think lots of law schools do that. That's one thing. Sometimes, it's not that. It sounds like Justice Thomas goes to the Arlington campus of George Mason to teach a class a bunch of times. He's putting in some hours and not getting a trip to Italy out of it. But there is something else there about relationship building. It sounds it's more about preexisting relationships. Justice Barrett was a longtime faculty member in Notre Dame and presumably has a lot of friends there, so that seems a different thing. We could disentangle those in some way or another.
Dan: There's just some weird stuff in here. It lingers on the fact that Jameel Jaffer, who teaches at Mason and is the founder of its National Security Institute had helped the Gorsuch family by going to look at houses with their realtor. He's a former clerk. That's something you would do if your old boss--
Will: If Justice Kennedy was moving to St. Louis, I assume you would--
Dan: Yeah, I would.
[laughter]
Will: Help him out.
Dan: There have been things where he calls up and says, "Can you help me with this thing?" Of course, I'd help him with anything. I mean, he changed my life. I don't know what was supposed to be troubling about that. This is a person with whom he's a preexisting relationship who's doing a favor for their family. Why is that bad?
Will: Yeah. I hate to get all Justice Alito here, but doesn't it seem there's a narrative about the conservatives on the court and some kind of corruption and influence and everybody is trying to be part of the narrative?
Dan: Yeah.
Will: I don't care about this, but I gather Justice Jackson's husband makes consulting income, consulting on legal medical malpractice cases, and there were some issues whether she disclosed that appropriately and then she go back and correct it. I gather Justice Sotomayor goes on some of these trips as well. But it seems to me like there's a narrative and now everybody's trying to be part of it. And I don't like that. Am I wrong not to like it? Am I wrong this is happening?
Dan: I think that these articles in particular are ones that are trying to be slot into this narrative in a way that is, I think is unfair, in the sense that there's not-- I don't think you can fairly paint a picture that this is somehow asymmetrical. Justices across the ideological divide are getting all sorts of goodies from various law schools and taking advantage of these trips and so forth.
Will: Yeah. Normally, I would like to learn things to build my narrative out of the facts. I'd love for there to be, I don't know, more we could learn about how this all works across the board, but this makes me worry about our institutions.
Dan: Which ones?
Will: The press, not the podcasts. Podcasts are good. This podcast is good.
Dan: Make you worry about it because you think they're being selective?
Will: Yeah. Selective in a way that's misleading. I don't think major news organizations ever lie. I don't think they ever report things like facts they know to be false.
Dan: Like Fox News election stuff?
Will: Well, okay. Major news organizations not named Fox News. I don't think the left-wing major news organizations ever lie, but I do think they deceive.
Dan: Yeah. I mean, by omission, I think it is.
Will: By omission and excessive focus.
Dan: Yeah. I think this is a place where that's reasonable. I think that one thing people are bothered by this is this idea that this school is being built as this conservative institution and they're explicitly trying to tie up their rise with tying themselves to the conservative Justices. I don't always buy your, "Well, what about these?" arguments. But in this one, I do think it is hard to draw a line between why this is wrong and why all the stuff that other school law schools do is not great.
At one point earlier in my career, will not give much of the way of identifying details, I did go to an event at an elite law school where a Supreme Court Justice attended. There were left-leaning professors involved who heaped unctuous praise in a way that seemed not directly to influence, but they displayed the greenhouse effect that the conservatives are always worried about. That's just a phenomenon that happens when these institutions are trying to bring Justices in. They're getting a lot out of it. They're getting their professors a chance to try to influence them. They're getting the prestige. They're impressing their students. They're impressing their donors. They're maybe helping getting the Justice to hire more clerks in that school, all sorts of things like that.
Will: Yeah. I do think there's an interesting question a law school faces about the strategy that we think George Mason is pursuing. If you think, "Wow, the courts are becoming more conservative," and most law schools are unwilling to lean into that and are unwilling to do the things you'd want to do to position your students to get clerkships with that administration, or to do the kind of law that's now going to work in the courts. We have a market opportunity, the Oakland A's, the Moneyball era, we have an opportunity to lean into that. It's an interesting question whether that's legitimate. Or whether you should say, "No. As an institution, we don't engage in strategy. We just call balls and strikes or not." I think that's an interesting question.
Dan: I mean, I think that every institution engages in some strategy.
Will: Should your strategy be driven by the law? Should you say, "We're a law school, so we're going to hire more people who do X," where we're dubious of X because the courts now do X. Should you hire more originalists when the courts become originalists and hire more critical race theorists when the courts turn to critical race theorists?
Dan: Hiring more antitrust scholars when antitrust enforcement becomes more rigorous or something like that.
Will: More law and economic scholars once law and economics becomes an important ingredient in antitrust litigation.
Dan: Yeah. It's hard to say, in principle, insidious for a law school to make its resource allocation decisions based on what's actually happening in the real world, how it might be beneficial to people being trained, and how to influence legal decision makers.
Will: Yeah. I think if a top six law school decided they wanted to eat George Mason or Notre Dame's lunch by just hiring all the best faculty at Georgia Mason, Notre Dame combined, tripling their salaries or whatever, maybe they should.
Dan: Yeah. in Virginia, kind of a generation ago, was seen as having more conservatives and little bit being more conservative friendly than other law schools but by sense is that they stopped doing that for whatever reason. But going back to that strategy, I think, you'd be able to clean up in clerkships. If you were the top 10 school that was more conservative friendly and had more conservative faculty, your students would get all the federal clerkships, right?
Will: Yep.
Dan: But the problem is, I think the most students don't want it right now, and you'd get a bunch of pushback.
Will: Sure, as an existing faculty, I don’t want it either.
Dan: Yeah. But it could be Chicago. You need to clone yourself 12 or 13 times, Will. And then, you've got Chicago as the foundation for the eliter George Mason.
Will: No comment.
Dan: [chuckles] Good luck with the cloning. All right, moving along, should we actually do some law stuff?
Will: We should do some law. We've had an hour of politics and the most I can take before I'll feel dirty and need to take a shower.
Dan: Do I embrace the implicit assumption that law and politics are distinguishable? I don't know. Okay, we got a new grant in a case that does explicitly pose the question of whether Chevron should be overruled, the Chevron doctrine, in which courts defer to reasonable interpretations of ambiguous statutes involving administrative agencies.
Will: Yeah, maybe.
Dan: Maybe what?
Will: I mean, it explicitly poses the question of whether the court should overrule Chevron or.
Dan: Yeah. This is weird. The petition had two questions presented. We can talk about the actual issue, but basically part 1 is, was the thing the court below did correct under the Chevron doctrine?
Will: Yes.
Dan: Right. Part 2 is whether the court should overrule Chevron or so this is actually question 2A and B, whether the court should overrule Chevron, that's 2A. I'm just giving them putting in the letter to make it clearer, or B, at least clarify that statutory silence concerning controversial powers expressly but not narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.
Will: A plus question presented drafting.
Dan: Yeah. And then court granted as to question two. The court is not interested in resolving this case under Chevron.
Will: Right. But it is interested in either overruling Chevron or at least clarifying--[crosstalk]
Dan: Whether statutory silence concerning controversial powers expressly but narrowly granted elsewhere. Controversial powers.
Will: Right. If you put the A and B in separate questions, then the court has to decide whether it really wants to officially grant overrule Chevron or not. By smushing those two anti-Chevron into one, you put overruling Chevron on the table without--
Dan: To preserve the ability to really argue that heavily in the briefs.
Will: Without the court needing to commit itself to that at the grant stage.
Dan: Yeah.
Will: Which is why Paul Clement, whose name is in the petition, gets paid the big bucks.
Dan: Yeah. Although maybe not as much big bucks as he used to because he left Kirkland & Ellis. Yeah, Paul Clement, former Solicitor General. He's bounced around a lot. Firm wise, he was at King & Spalding, where I worked. I got there, and he quit a few months later. He went and did his own little firm with [unintelligible [00:55:09], and then he went to Kirkland, and then he quit there after a few years and is now doing his own little firm again.
Will: His firm is Clement & Murphy. Erin Murphy was my co-clerk and officemate at the court.
Dan: Yeah. They seem to have a little bit more than a dozen attorneys there, so it's kind of a small crew.
Will: I love this Chevron thing because I think the court hasn't applied Chevron in a while.
Dan: Yeah. They find ways to get around it and just don't address it.
Will: Or I think they ignore it and I think this is the--[crosstalk]
Dan: Yeah, just don't talk about it.
Will: The lawyers don't talk about it, the court doesn't talk about it. Now, of course, the lower courts still talk about it, which is one reason the court might want to decide whether it wants to let the lower courts in on the joke. But it's kind of interesting.
Dan: Yeah. In terms of the actual issues in the case, it is about some laws I didn't really know anything about, the Magnuson Stevens Act, which is about fishery management in federal waters and poses certain powers and obligations on the National Marine Fisheries Service, which is an entity I do not know anything about. I'm a little out of my depth here so to speak, pun intended, because this is a case about fishing.
Will: Yeah. Oh, that's a good one.
Dan: Yeah. No, that wasn't really a good one. That was a pretty shitty one.
Will: Well, I was slow to catch it. It was funnier when I caught it. I do know Magnuson and Stevens. Well, they were senators from states with a lot of fish.
Dan: Yeah.
Will: So, that makes sense. That checks out.
Dan: Basically, as I understand it in very broad outlines, there are these laws that require certain kinds of fishing boats to have a slot in which the federal observer can hang out on the boat and make sure you're not violating any of the rules.
Will: Is this like how Yates, the fish smuggler, the fish guy got caught?
Dan: No, he didn't get caught that way. They were in a different boat, and they came in, boarded the ship. I don't know if there was a [crosstalk] involved, [crosstalk] because that guy left. The inspector guy left, and that's when he was like, "Throw all the fish overboard. Forget about the fish."
Will: Okay.
Dan: But now, the National Marine Fisheries Service is saying that these boat owners have to pay the salaries of the monitors, and the statute elsewhere says, "Yeah, you do have to do that under certain circumstances and with certain caps." But then, as alleged here, the Fisheries Service is like, "Well, in addition to all that stuff, you actually have to do a lot more and pay them under these circumstances." The argument below was, "Well, this is ambiguous. It doesn't say you can't do it. So, it's reasonable for the agency to say you do have to do it."
It's a good case for the Chevron challengers because it does seem like what the government is doing is picking on the little guy. It's overreaching regulators, making business really hard. Seems like there's a pretty good argument that the statute doesn't seem to contemplate this. A lot of stuff that's useful if you wanted a vessel to overrule Chevron. But what do you think? Do you think this is the case? It's maybe not a great case for Chevron. It may be a case where the court can just say, like, "Yeah, we've read the statute, it's not really ambiguous. It doesn't give this power. So, there's not room for reasonable reinterpretation here."
Will: Yeah. Although they denied on QP1.
Dan: Yeah.
Will: I think the smart money is always on the intermediate approach. The smart money is that they'll do the "or". They'll clarify that silence is not ambiguity for Chevron purposes. And that's an important principle, I think.
Dan: Yeah. They'll have a new controversial powers doctrine, like the major questions doctrine. Controversial powers doctrine.
Will: Well, I don't know about using the controversial powers doctrine so much as like, Chevron concerns when the act says source and judges are like, "What the hell is a source? Can we [unintelligible 00:59:17] the agency?" But it's different when the act doesn't say anything and then the agency comes in and says, "Well, why not this?"
Dan: Everything that is not forbidden is permitted.
Will: It could be a good case. I doubt it's going to contain the words "Chevron should be and hereby is overruled."
Dan: Yeah. I think you were one of the first to call Dobbs as the vehicle for overruling Roe. You're not calling a shot on this one yet, so maybe not. That'll be a case for us to talk about next year, next term.
What else? We did get a ruling in the mifepristone shadow docket matter, which is that the court has agreed to stay the lower court order, which--
Will: Stay the district court order.
Dan: Yeah. Just to be clear. Yes, stay the district court order, which had enjoined the FDA from doing various things related to mifepristone, staying was illegal and says that it stayed pending disposition of the appeal and disposition of a petition for a writ of certiorari such a writ is timely sought. So, the status quo before the district court got involved will prevail until the court acts on the likely petition.
Will: The petition from the Fifth Circuit opinion that doesn't exist yet but the argument that'll happen soon.
Dan: Yeah.
Will: So, it's still--
Dan: Could be a while. Justice Thomas noted he would deny without opinion. Justice Alito writes a solo opinion where he makes that same move that you were just talking about, where it's like, "Well, you guys did that, and that's not fair." Where he says, "Look, in these other shadow docket cases, we were criticized for not explaining our conclusions and criticized for this, criticized for that. And I didn't agree with those criticisms. But if they're true there, they're also true here, and why aren't you explaining what you're doing?" And there's not a good justification here. The appeal is fast tracked in the Fifth Circuit. That'll get resolved quickly. They can come back if there's a problem.
Will: And the first thing he makes that move, which I think is not totally unfair although not totally fair either, when some people whose shadow docket criticisms were kind of ill formed and would say, "Oh, my God, I can't believe the court is using the shadow docket." And then, would turn around and say, "Oh, wait. I need the court to use the shadow docket to stop SBA." There are other people like friend of the show, Steve Vladeck, who have more sophisticated criticisms that I don't think Justice Alito is really embracing here.
He does move on to the merits and says two things, I think. One of which seems right to me, one of which seems wild to me. One he says is right, is there's a conflicting injunction in the Washington District Court. We shouldn't let that count for too much because the FDA is not appealing that one, and we don't want to let them leverage getting sued in a friendly jurisdiction and deciding not to appeal that injunction as then giving them more rights, which seems fair to me. I don't know if that's what's happening there, but that seems fair to me.
Dan: Yeah, no, more generally, that's an interesting problem of how the government could use collusive litigation to tie its hands and say, "Oh, I can't do this thing I didn't want to do anyways, because there's this lawsuit."
Will: I will say this is an issue the court created cert on last year in Arizona v. City and County of San Francisco, had this incredibly interesting oral argument about, but it ends up implicating questions about nationwide injunctions and jurisdiction and res judicata and notice and comment and intervention, and the court just DIGed it. I think those questions may be a little harder than a three-paragraph treatment on the shadow docket the Justice does. This is maybe actually the shadow docket problem--[crosstalk] And Justice Alito also says that the reason the government doesn't have irreparable harm is because they can just exercise enforcement discretion to not enforce the law anyway. Did you see this part? [crosstalk]
Dan: Yeah. I thought there's an even crazier part at the end of that paragraph. I thought that's where you were going, but we'll get there in a second.
Will: As I understand it's like, yes, the Fifth Circuit might have just made-- so the government says in its application first day that even the Fifth Circuit's approach, which doesn't categorically ban mifepristone because it changes the rules, it renders all of it misbranded and would require massive regulatory and practical efforts to just rejigger. Justice Alito seems to be saying, "Well, you could just not enforce it."
[laughter]
Will: "Why are you guys asking us to stay the Fifth Circuit rather than just ignoring it like Abraham Lincoln?"
Dan: Yeah. That's strange. But then, the final part of this paragraph, he says, "And here, the government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases. Much less that it would choose to take enforcement actions to which it has strong objections."
Will: Yeah.
Dan: Where is he getting the doubt? He's saying the government is going to refuse to follow court orders?
Will: I can't tell if those are the same point.
Dan: That's a weird thing to just throw in there, unless I'm misreading what he's saying.
Will: Yeah, it's weird.
Dan: You're just like, "I doubt that the United States government, the executive branch, will follow our injunctions."
Will: This happens on occasions. I remember in the Nixon tapes case beforehand where President Nixon is ordered to cooperate with the subpoenas that result in him eventually resigning from office, one of the first questions they ask in oral argument to his lawyer is-- I think it's maybe it's Thurgood Marshall who asks is basically, "Are you going to agree with our order?" I think he just keeps saying, "Are you submitting this case for jurisdiction to the court? Do you agree that you're giving this case to the jurisdiction of the court?"
Dan: [laughs]
Will: Of course, they say yes, but that's taken to be a fair thing you want to make sure of before you decide to roll the case. I don't know what Justice Alito's-- yeah, again, I think it is true that the government has used enforcement discretion somewhat aggressively in this area, so I understand that argument. Anyway, this just seems wild to me.
Dan: Yeah.
Will: Also, there are some previous shadow docket cases that say that anytime the government's policies are enjoined that's per se or irreparable injury because there's a democratic illegitimacy of what the government's doing, not cited or acknowledged by Justice Alito or distinguished.
Dan: What do we make of the fact that nobody else joins?
Will: Well, we don't know. We don't have the full vote. But I think this is a pretty easy case for the government to get a stay, either because the plaintiffs obviously don't have standing unless you're willing to overrule or distinguish Summers v. Earth Island Institute, or because the sheer disruption and the fact that this is ultimately challenging something that happened 22 years ago, mean there's just no reason to grant interim relief rather than let this proceed on the merits.
Dan: Yeah.
Will: I am curious what Justice Thomas would have said.
Dan: Yeah. Why does he not want to join? He just wants to say he wouldn't do it.
Will: Very curious about that.
Dan: Okay. We talked a little bit about revisiting Reed v. Goertz. I haven't really made any headway on making sense of that one, so maybe you have, but I think I'm kind of still in the same spot on that one. I'm probably more confused than I was.
Will: I'll say two things. I'm still in the same spot I was before. I reread the underlying opinion, District Attorney's Office v. Osborne by Chief Justice Roberts. I do think it bears a reread to help make sense of this, because that kind of sets up the whole structure. I do think the most plausible argument you could make against the court, I think, is that it's weird for the prosecutor to have been the defendant in this federal suit, because it's not clear that the prosecutor is the real defendant here as opposed to the courts. There's a mismatch between suing a prosecutor and then saying you need time to wait for what the courts are going to say.
But I think often the remedy for not having included a necessary party is not necessarily dismissing the whole case on sovereign immunity grounds. Often, it's to give you a chance to amend, to add the necessary parties and there are some rules, a little procedure about that. So, it seems to me there might be some more complicated stuff that happens to on remand, but I remain unconvinced that Justice Kavanaugh had to get into them before he could deal with this case. I'm standing by it until you convince me.
Dan: I'm not going to be in a position. I don't even know what I think, so I have nothing I want to convince you of. So, I'm running out of time but maybe we'll just quickly mention. As I think we had expected, the North Carolina Supreme Court went ahead and ruled in the Harper case. I'll be careful how to explain this, because there's the case that's before the Supreme Court right now, which is related to the case that the North Carolina Supreme Court was like, "Hey, we want to take that back and reconsider it." We had this lengthy discussion a couple of episodes ago about, does that change the Supreme Court's jurisdiction or not?
I think where we landed was maybe we thought it doesn't because it's all part of the same related case, but it's a separate set of judgments that are involved. Where we landed on that?
Will: We landed there and at the oral argument in this case that seems to be where some of the lawyers and the Justices that landed, the North Carolina Supreme Court appears not to have landed there. I think in their opinion, in the arguments, it sounded like the plan was overrule the precedent about [crosstalk] but leave the judgment in place. The North Carolina Court has now purported, I believe, to actually vacate the judgment that's under review of the court, which I remain unconvinced that the North Carolina Court has jurisdiction to do that.
Dan: Yeah, because the question shouldn't just be, does what the North Carolina Supreme Court did here take away the Supreme Court's jurisdiction? It could be like, "No, the Supreme Court might be able to protect its own jurisdiction," because if it's really the same judgment and it's up with the Supreme Court, the lower court is not supposed to be able to mess around with it.
Will: Yeah. Now, this was talked about before, maybe the fact that the North Carolina Supreme Court could mess around with it is a sign that it was never really final and never really before the Supreme Court in the first place. Like there are two sides of the same coin, but something funny is happening here. I don't think we have to say anything more with this now. Today, the parties filed a letter with the court in Moore v. Harper that just says jointly, the respondents and petitioners, that just says, "We represent the respondents and petitioners in Moore v. Harper. We write to notify the court that on Friday, April 28th, the North Carolina Supreme Court issued its opinion in this case. We would be pleased to file supplemental briefs regarding the effect of the decision on this court's jurisdiction should the court request them." The parties are like, [laughs] "Let us know if you want to talk about this." And, boy, [chuckles] I don't know what the court's going to do.
There is another pending case that people have referenced, I think, from Ohio, I forget the name, that also poses this issue. So, one option I've seen is to just DIG the North Carolina case and grant the other case. You could also not even DIG the North Carolina case. You could just grant the other case.
Dan: Yeah, just keep it sitting around and then GVR for reconsideration and wouldn't make a difference.
Will: I guess granting the Ohio case for OT23s or maybe even for an emergency session is looking pretty good right now.
Dan: We will see what happens, for better, for worse. Okay, so that goes through the list of stuff I wanted to talk about. Anything else you had, Will?
Will: No. That's a lot.
Dan: Thanks everyone for listening. As I mentioned earlier on the episode, please do rate and review and send your friends the podcast, expand our listenership. There are some number of people who I think would benefit from the show who have not discovered it even now. So, please help.
You can send us an email pod@dividedargument.com. You can leave us a voicemail, including one in song form, 314-649-3790. You can go to our website, dividedargument.com, for transcripts. They're posted fairly soon after the episodes come down, for those who want to be able to read rather than listen. You can go to store.dividedargarment.com for t-shirts and various other pieces of merchandise.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. I'll second the request for excellent songs, especially about Justice Scalia opinions.
Dan: If we don't record another episode for some time, it'll be because we've been forced to appear before the Senate Judiciary Committee.
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