It's our live show at the University of Chicago! Hosted by the University of Chicago Federalist Society, we discuss this week's big shadow-docket rulings about gender transitions in California Schools (Mirabelli v. Bonta) and redistricting in New York (Malliotakis v. Williams), and also break down the recent merits decision about the right to counsel when a defendant is testifying (Villareal v. Texas).
It's our live show at the University of Chicago! Hosted by the University of Chicago Federalist Society, we discuss this week's big shadow-docket rulings about gender transitions in California Schools (Mirabelli v. Bonta) and redistricting in New York (Malliotakis v. Williams), and also break down the recent merits decision about the right to counsel when a defendant is testifying (Villareal v. Texas).
[Divided Argument theme]
[applause]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: Will, as your prerogative, why don't you tell our listeners where we are today?
Will: We are here on my home court at the University of Chicago. We've got a great group of students here ready to listen to us talk about some cases.
Dan: Does home court imply some kind of adversarial relationship between us?
Will: Let's see when people cheer.
Dan: Okay. [audience laughter] So, you had a plan for what we're going to cover today that seemed to me a bit ambitious, but we're still going to try to see if we can do it. So, let me jump into it. I'm going to be the taskmaster trying to keep us on pace.
Will: We're doomed.
Dan: Okay. First thing, just to deal with a little bit of feedback from the last episode, we talked about the tariffs case, Learning Resources. We talked about a lot of different angles in that case. People were very interested about one thing we said, which is our attempt to find the origin of the phrase "no, no, a thousand times no." I'll just say that the investigation continues. We've gotten more email about that than we have about anything else in the history of the show. It's quite puzzling. There's a lot of threads that go back hundreds of years, so you're going to have to wait for that one. But for those who've written in, we appreciate it.
Another little tidbit that I don't think there's a ton to say about, but I thought might have a slight SCOTUS angle. Did you see how the Trump administration has tried to enforce these orders against law firms that the president dislikes imposing all sorts of restrictions on them? Those have been enjoined by a district court within the D.C. Circuit. Appeals were pending by the government, the government filed a motion for voluntary dismissal, and then tried to un-file it the next day?
Will: Yeah, they filed the second thing, a motion to withdraw their motion to voluntarily dismiss, which I don't know if you can do.
Dan: Well, we're going to find out whether you can do it. The only SCOTUS-related angle is typically the Solicitor General is involved and has to approve decisions to appeal lower court rulings. I don't know exactly what the Solicitor General's role would be in withdrawing from appeals. It sounds like the White House Counsel's Office may have come in and countermanded the decision to withdraw, tried to dismiss the appeals. But I'm very curious if we'll ever learn whether the SG's office was in those conversations, which I imagine it was.
Will: Yeah. And on which side?
Dan: Okay. All right, so, we're two items down already. So, next thing, we are going to talk about two orders that I think, because this is, as you called it, your home court, something we're required to still call the shadow docket, right?
Will: Great.
Dan: Okay. First one, Mirabelli v. Bonta. You said this is maybe the thing people were going to be most interested in. So, what happened here?
Will: Okay. So, this opinion, along with the other order we're going to talk about, both came down on Tuesday evening. It is an application to vacate an interlocutory state order out of the Ninth Circuit. But what happened is, a group of parents and teachers in California sued to challenge the California public schools' policy to accommodate children who want to use different pronouns and transition genders in school and to not tell their parents about it.
The parents and teachers sued, saying, “This violates both the Due Process Clause and the Free Exercise Clause.” A district judge had enjoined the policy, and the Ninth Circuit stayed the injunction. And so, now, the Supreme Court has stepped in to un-stay the injunction to stay the stay, and unlike sometimes, issued a per curiam opinion that appears on the Supreme Court opinions page-- [crosstalk]
Dan: Not on opinions relating to orders.
Will: Yes.
Dan: As with these kinds of per curiams, we don't know who wrote them. I was trying to puzzle that out. There's six Justices who could have, because the three liberal Justices are in dissent. I don't think it could be Justices Thomas or Alito, because they say, at the end, there's a note that says they would have granted the application in full. I think that means the court only acted with respect to the parents, but not the teachers, and so those two would have granted relief with respect to the teachers as well. So, it's not them.
Then the other puzzling thing is we have a concurrence by Justice Barrett, joined by the Chief Justice and Justice Kavanaugh. So, that's three. So, I assume Justice Barrett didn't write the per curiam, because she wanted to concur separately. Do you think that the two Justices who join also did not write?
Will: Well, so, if it were a signed opinion, that would be the norm. You can't have an opinion by Chief Justice Roberts and then a concurring opinion joined by Chief Justice Roberts concurring in his own opinion. The courts of appeals do that sometimes, but the Supreme Court doesn't do that. But it's an unsigned opinion. So, the only Justice who can't join a concurrence is the famous Justice Curiam.
[audience laughter]
So, I don't think that tells us who drafted the opinion on behalf of Justice Curiam. Don't we think at this point the Chief just writes all these?
Dan: I assume so. Although, do you think it's weird that he would write the per curiam and then join a concurrence? Because the only person the odd man out there is Justice Gorsuch, right?
Will: Justice Gorsuch could have drafted it.
Dan: Yeah. It didn't have a strong Gorsuch-style feel to it, but you never know.
Will: He's restraining himself.
Dan: [chuckles] Apparently. Okay. And just so I understand the procedural posture, the Ninth Circuit was still possibly considering whether to stay or not, en banc? Is that correct?
Will: Yes. So, the Ninth Circuit, I think state decision has already gone en banc. The merits appeal is pending. As I understand it, there are several different variations of this challenge as well, because there's a state law that says that public school teachers shouldn't communicate to the parents any facts about their children's transitions. But then, there are also policies that maybe go beyond or above the law. There's lots of different variations of what exactly is being challenged. But right now, this could be going en banc in the Ninth Circuit, and now maybe they don't have to.
Dan: Yeah. And so, normally, wouldn't it be typical practice to seek relief in terms of equitable relief at lower levels of the judiciary before you go to the court?
Will: I think that was traditional when we were in law school, but I think that’s-- [crosstalk]
Dan: A lot has changed.
Will: It is an emergency, Dan. [chuckles]
Dan: Everything's an emergency now. Okay. So, keeping our breakneck pace, let's walk through the reasoning, which-- [crosstalk]
Will: Okay.
Dan: Again, I think we should give kudos to the court in that they actually give us seven pages of reasoning. Now, they're going to get criticized for that. And this is something that I've noted before about the shadow docket is the court gets criticized for saying too little, but then it often gets criticized for saying too much, which I think in some instances, really what it means is that the criticism is about the substance of the court's ruling. There's plenty you could criticize. But my view is it's better to say a little bit more. It's better to say something rather than nothing.
Will: Okay. Well, we'll get to that with the other one. So, I agree. Somebody stopped me at Coffee Mess, which we have on Wednesday mornings here, in the morning and said, "Don't you think this opinion was reckless for the court to write so much before they got to the merits?" Or, maybe they write so little, I think they wrote so much. And my reaction was, “No, the opinion might be wrong, but it doesn't mean it's reckless.” Conditional on them having these views, it's probably good that they told us what they were thinking.
Dan: And reckless, because as we'll get to the decision opines on the merits. Was that the claim?
Will: Well, I think it is related to what it says about the merits. Okay, so, why is it that it might be unconstitutional? Why is it the Constitution might even speak to the question of what public school teachers are allowed to say to parents or required to say to parents about their children? What part of the Constitution governs parent-teacher conferences, the Parent-Teacher Conference Clause of the Constitution? [Dan laughs]
There are two Parent-Teacher Conference Clauses in the Constitution. One is the Free Exercise Clause, which we talked about on the show, of course, before. The Supreme Court last term in Mahmoud v. Taylor said, “Sometimes requires schools to give parents notice and an opportunity to opt out before something happens to their children at school.” In that case, the instruction using LGBT+ inclusive children's books. And the court said, “At a minimum, you should have told the parents what was going on and given them a chance to pull their kid out that day, so they weren't exposed to this.” So, that's at least like free exercise-- [crosstalk]
Dan: And that would only apply to parents within the class who have religious objections, or parents within a subclass with religious objections.
Will: Correct. And now, Mahmoud did say, “Look, people are complaining this is going to totally overhaul everything about public education. But this is just a narrow decision about these facts, so we're not necessarily deciding that.” So, the Ninth Circuit took that at face value and said, “Well, that was apparently a narrow decision about its facts, so it doesn't apply to this, which is not about children's books and not about preschoolers.”
And the Supreme Court in the per curiam now says, “That was wrong, that the Ninth Circuit had too narrow of an understanding of Mahmoud. It does apply, because there's a strong objection here. Indeed, the intrusion on parents' free exercise rights here is greater than the introduction of LGBTQ storybooks we considered sufficient to trigger strict scrutiny in Mahmoud.” So that's a modest extension or maybe significant extension of the free exercise right that would only apply to parents who have a free exercise right, yeah?
Dan: Yeah. I think that this is a theme we tend to see in these short shadow docket orders, which is the court sometimes saying very briefly, "Oh, our precedent commands this result." And if you drill down a little bit, maybe it's a little bit more complicated.”
Will: Well, they have a pincite, Dan. [crosstalk]
Dan: Okay. Well, that solves it. We should get some law review editors doing a cite-check on that to make sure that it's not a cf.
Will: Yeah. Okay. But then, they don't stop there. So, one of the criticisms of Mahmoud and one of the criticisms of some of these cases premised on the Free Exercise Clause, is that this further exacerbates the two-tier system in which religious parents have a lot more rights about their kids' public-school instruction than non-religious parents. Maybe that's just a necessary consequence of having a Free Exercise Clause, but it does bother some people. So, the court solves that problem by doubling down on the much-beloved doctrine of substantive due process, right?
Dan: Okay. Some people think, and we're going to have a dissent that we'll get to in a minute by Justice Kagan, that makes the claim that the conservative majority has gotten rid of substantive due process. But apparently, that is not the case.
Will: Right. So, recall, there was a case called Dobbs from a couple years ago, [audience chuckles] where the court overruled a precedent that had recognized a substantive due process right, the right to an abortion, overruled Roe and Casey and said, “Substantive due process is very dubious. We've said you can only recognize substantive due process rights if they're well supported by history and tradition. You have to do that history and tradition analysis at a very low and specific level of generality. Otherwise, it becomes a license for judges to just decide what rights they want to protect and protect those and not others.”
Now, they did say we're not disturbing any of the substantive due process rights we've recognized in the past, from Obergefell all the way on back to Pierce v. Society of Sisters, Justice Thomas wrote separately say-- [crosstalk]
Dan: Which is about Catholic school education.
Will: Yes. Justice Thomas wrote separately to say, “No, I would disturb all of them, or at least [Dan laughs] I would ask about all of them.” But they said, “We're not disturbing them.” People said, "Yeah, right, we don't believe it." Well, now we have a case where the court says, “Look, we have precedents two cases that recognize the right, essentially the right to send your kids to private school.” They're seen to establish some kind of parental rights. Plus a few follow-on cases. One, the court cites a lot called Parham about basically the state's attempts to institutionalize your children.
Dan: And Troxel v. Granville, which is I don't think there was a majority opinion in that case.
Will: Right. And a Scalia dissent, I think, about the unconstitutionality of giving grandparents visitation rights over the parents' objection. So, there's some kind of parents' rights out there. So, the court says, “Look, the same is true. The claims will succeed for the subclass of parents who object to these policies on due process grounds. Under long-established precedents, parents, not the state, have primary authority with respect to the upbringing and education of children. That includes the decision not to be shut out of decisions about your children's mental health.”
Dan: And is that fair? I thought you just told me we were supposed to define substantive due process rights at a low level of generality.
Will: Yeah.
Dan: That seems like a very high level of generality.
Will: Yeah. I will say-- This is another one. If you go read the cited cases about parents' rights-- I mean, there are cases about parents' rights. So, there is some substantive due process limitation on the state's ability to interfere with parents. All those other rights are negative liberty cases, where the parents are being stopped from doing something with their kids that they think is a good idea. None of them are about compelling the state to do something that the parents want them to do.
Now, that's a plausible extension. In these cases, they're positive rights cases. These cases, nobody's stopping parents from pulling their kids out of school or doing whatever they want to the kids at home. The question is whether the parents now have a constitutional right to force the school to do what the parents want, which I understand why the parents want it. But it is an extension.
Part of the reason the court has said, “You have to do these things at a low level of abstraction,” is it couldn't overrule Roe. If you do things at this kind of level of abstraction, you could say, “Look, we already have precedents recognizing the right whether to bear or beget a child.” As the court said in Eisenstadt, “The idea that, in general, people have a right to bodily autonomy, can make decisions about their own body and their own medical care unless the state has a really good reason is well-grounded in hundreds of years of precedent and practice.” You could have said that. And so, Dobbs said, “No, no, no, we don't define things at that level of generality.”
Dan: So, let me just look at this couple of sentences of reasoning very closely. "Under long-established precedent, parents, not the state, have primary authority with respect to the upbringing and education of their children." Next sentence, "The right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health." Okay.
Will: At a high level of abstraction, that is accurate. [chuckles]
Dan: Okay. At a high level of abstraction, that first sentence could imply a lot of things. I think Divided Argument blogger Richard Re made the point that “Does this extend to the right of parents to completely control the curriculum in every way of a public school?”
Will: Right.
Dan: Does that seem right?
Will: I'm sure it doesn't. I'm not sure why, but I'm sure it doesn't. So, the other one floating around there we're talking about is in Skrmetti, which you may recall, where the court upheld the state of Tennessee's regulations about medical care for trans children.
The court decided it on equal protection grounds, but the plaintiffs brought to the court and had litigated in the Sixth Circuit substantive due process claims as well, parents' rights claims, saying, “What's happening here is the state is interfering with the parents' rights to direct the upbringing of their children, to make decisions about their children's medical care,” like, a lot of the same claims, which the Sixth Circuit shut down and the Supreme Court did not review.
Now, the Supreme Court did not review them, so maybe they secretly had doubts about that and never mentioned it. Maybe now somebody can bring a claim against Tennessee's law relying on Mirabelli?
Dan: But it seems like there's a right not to be shut out of participation in decisions regarding children's mental health. But maybe also not a right to make decisions?
Will: It could be. And so, there's a primary authority with respect to the upbringing of children. That doesn't mean it's unregulated-- There's a lot of questions. That's the thing when you do it at a high level of generality, there's a lot of questions about why this line is where the right comes from. So, now, look, it's just a per curiam shadow docket decision. So, I don't know what it means.
Dan: Yeah. This is really just a paragraph of reasoning on the substance of substantive due process.
Will: Yeah.
Dan: Okay. And then, irreparable harm, you know, we've got the other factors for equitable relief. Irreparable harm, even shorter analysis there. "The denial of plaintiffs' constitutional rights during the potentially protracted appellate process constitutes irreparable harm." That's the analysis.
Will: Yup.
Dan: So, just to put everything together, we've landed in a world where if the government can't follow one of its own policies, that's always irreparable harm.
Will: Right.
Dan: I think that's been pretty established over the last few years. And so, now, if a person is denied constitutional rights, that is also irreparable harm.
Will: Yes.
Dan: Does that mean there's always irreparable harm in con law cases?
Will: Basically, yes.
Dan: Okay.
Will: That is why everything is an emergency.
Dan: Okay. All right. Everything is irreparable.
Will: Because every minute that one side or the other wins or loses is an emergency.
Dan: But it only is true with respect to the party actually enjoined or bringing the constitutional claim, in the sense that this came up-- We talked about this in some of the immigration cases where I was making the point, “Well, if the administration is allowed to continue this policy, there is some pretty irreparable harm to the people being deported.” But I think your response to that was, “Well, we look at the irreparable harm to the person seeking equitable relief,” right?
Will: Right. But that flips at each stage. So, when the state went to the Ninth Circuit to challenge the injunction against them, I didn't read their papers, but I'm sure they said, "We are irreparably harmed by the injunction, because every day that we are not allowed to enforce the California law is a day that we are irreparably harmed," and the Ninth Circuit agreed. And then, the plaintiffs go to the Supreme Court and say, "Every day that you don't enforce the injunction, we are irreparably harmed," and the Supreme Court agreed. So, I think everything is irreparable.
Dan: Okay. A little bit of analysis on the balance of equities. I don't think that moves the ball forward that much.
Will: Although, kudos to the court for even mentioning these factors and giving them paragraphs with little italicized phrases that remind everybody they're part of the test. That's at least more doctrinal hygiene than the court often has in these cases. It's good legal writing practice to just say something about every element of the law, even if it's unsatisfying.
Dan: Okay. And then, I think this is also something Richard Re flagged. There's this standing paragraph, and I think this is maybe a bigger deal.
Will: Yeah.
Dan: Okay. What's going on here? This is part three of the opinion. "The Ninth Circuit's procedural objections to the injunction are unlikely to prevail. First, the parents protected by the injunction very likely have standing, because they are objects of the challenged exclusion policies." What does it mean to be an object of a policy?
Will: Okay. We talked about this last term in this case, Diamond Alternative Energy. This is a new standing theory Justice Kavanaugh came up with to thread the needle between the court's traditional view that if you are regulated by a statute, you should have a lot of standing to challenge it. Like the core people who can challenge things, people who are regulated. And if you were just a bystander who wants other people to be regulated, you shouldn't have standing.
And then, Justice Kavanaugh didn't entirely like that distinction, because there were some non-regulated parties who he thought should have standing. So, he created a new category of people who are objects of the regulation. They're not regulated by the law, but the law's purpose, although it's not supposed to be a purpose test, the law's feel, the law's vibe. Is that-- [crosstalk]
Dan: I would think someone's an object of a regulation if they're regulated by it. So, the word doesn't really seem to make sense.
Will: Well, it's designed to elide that. So, this was the example of if you sell hot dog buns and then they ban hot dogs at the baseball stadium, you're not regulated. You're allowed to sell hot dog buns. But now nobody will buy your hot dog buns, because there are no hot dogs.
Dan: But object implies some intentionality to me. Like, it's aimed at you.
Will: Yeah. So, the test doesn't turn on intentionality. It's objective. Object is objective.
Dan: Okay.
Will: [laughs] So, this theory was floated and not actually fully endorsed in Diamond Alternative Energy at the pages cited by the majority. But now, apparently, the floating of the test is precedent.
Dan: Okay. Yeah, we've got a C cite there, and that resolves the question.
Will: Probably should be a CF.
Dan: Or, maybe needs a law review favorite explanatory parenthetical?
Will: Never.
Dan: Okay. All right. Second, "Class certification was likely proper." This is the other procedural objection the court is dismissing. "The district court addressed the requirements for certification under Rule 23 and explained why it concluded that they were met."
And not a ton to say about this, other than something that came up in CASA, which is about the possibility of these kinds of universal injunctions that apply to more people than just the plaintiff. One way to get broader relief was through class action certification, and that did happen here.
Will: Yup. And we don't know why that's okay.
Dan: Okay. Quickly, trying to keep us on pace, we're already a little bit beyond my schedule, but we have a concurrence from Justice Barrett, who is responding to the dissent about the ongoing role of substantive due process.
Will: Yeah. I think so she's trying as hard as possible, I think, to signal, like, "We are saying more here, because people keep complaining that we don't say more, but we're trying to say only as much more as we should say," right? So, she says, “Look, we only said these are likely to succeed. It's not clear.”
As I read her, what she's saying is, “Look, these cases are pending in a bunch of lower courts. We've all looked at them, and six of us think they're wrong. They think everybody's just approaching them in the wrong way. They've narrowed the precedents. They're not even really considering the main precedents we think are binding. It's probably better for everybody if we just tell you that now, so you can start trying to get these cases back on track. There's a lot still to be decided about what exactly that means and what parts of the curriculum can and can't be regulated and all the different permutations. And the court's trying not to say anything about that, but we just got to tell you like, ‘You're over here, and you guys should be over here, closer to us.’"
Dan: Okay. And then, dissent by Justice Kagan raising a set of arguments that we see over and over these days about the court's choices to intervene using the emergency docket. One thing that I thought was interesting was, she says, “Well, maybe on the merits, this is right.”
Will: Yeah.
Dan: I thought that was striking. Because a lot of times in these dissents, the dissenters are objecting both to the actual substance of the decision and the procedural way that the decision was reached.
Will: Yeah.
Dan: And she doesn't do that.
Will: So, Justice Sotomayor does not join this dissent and just says, “She would deny relief.” do you think it's possibly because she doesn't think these are maybe correct on the merits or wouldn't even-- [crosstalk]
Dan: That seems quite plausible to me.
Will: This is interesting more generally in that I think of all the things the Supreme Court has done on the emergency docket lately, this one may not make people as mad as some. I think the result here it's very controversial, but there are a lot of people like Justice Kagan who might think like, even Justice Kagan, despite being a relatively liberal Justice might think there are some problems with these policies.
Dan: I do think just as a matter of policy or at least political optics, a policy that says the government is allowed to keep secrets from parents about their minor children is likely to be unpopular, and I think likely to be at least at a national level hard to politically defend.
Will: Right. Now, that said, the fact that this involves enforcing the non-existent Parent-Teacher Clause of the Constitution is the thing that troubles me, but may not be what gets the news coverage.
Dan: Okay.
Will: One minor thing. Did you notice this? So, Justice Kagan points this out. “The majority doesn't call this doctrine substantive due process. They just call it due process.” Like, “Substantive due process is bad. This is just due process, the good kind.” [audience laughter] And then, she's like, “By the way, that is substantive due process, but it's a bad word, so you don't have to say it.”
Dan: Okay. So, tons more we could say about that. We could have a whole episode, but we're not going to. Next thing, an order in Malliotakis v. Williams. You're an election law person now, right?
Will: I am. I'm on the election law faculty.
Dan: Okay.
Will: Okay. This case was cited by the Supreme Court at the same time as Mirabelli, also granting a stay of something happening in the lower courts. This time in the state courts of New York, a redistricting fight about essentially the constitutionality of the New York equivalent to the Voting Rights Act. And this time, the court again grants a stay with no per curiam opinion, with no court opinion at all. Just the standard one paragraph, "The application for a stay is granted while we wait to decide whether to grant it." Justice Alito writes a concurrence, and Justice Sotomayor, joined by Justice Kagan and Justice Jackson, write a dissent.
Dan: Okay. So, this one does not appear on opinions of the Court. So, we don't have the full scope of the Court's reasoning. Does it make sense to talk about the dissent and then the Alito response to the dissent, or go in the other order?
Will: Right. So, Justice Sotomayor's dissent begins with a great summary. So, she says, "The Court's 101-word unexplained order could be summarized in just seven. 'Rules for thee, but not for me.'" And then, she's like, “Look, time and again you've been telling me that federal courts are courts of limited jurisdiction, that you shouldn't interfere with state court litigation, that federal courts shouldn't meddle with state election law.”
Just a couple months ago, we learned that it was the eve of the 2026 election, and thus the federal courts should not step in and stop Texas's mid-decade redistricting. I think, by some mathematical principle, it must still be the eve of the election, or at least it's no earlier than the eve of the election.
Dan: Well, it's different timing with respect to the primary, right,-
Will: True.
Dan: -in Texas v. New York. I think in both cases, it's about three months, right?
Will: Yeah. The general election is still coming.
Dan: Yeah. So, it's evener now. [laughs]
Will: Right. So, I think Justice Sotomayor's dissent can be summarized in four words, "Give me a break."
Dan: I thought especially this opening paragraph, was pretty effectively written.
Will: I agree. Actually, I confess-- When I printed this out, I read the first paragraph, which appears on the first page of the dissent and I thought she'd gone for a one-page, one-paragraph dissent, and I was like, “That was bold and effective.” And then, I learned there are--[crosstalk]
Dan: There are 12 more pages. Yeah. [audience laughter]
Will: But really, the first paragraph, it was great. [chuckles]
Dan: So, there's a few things going on here. There's a jurisdictional question. I am not sure we can clearly explain exactly why in the time allotted.
Will: Oh, that's where the bodies are buried.
Dan: Can you do like a two-sentence version?
Will: Okay. The certiorari statute says that the Supreme Court has jurisdiction over state courts only when the lower court case is final. This case wasn't final, and that's a big problem for the court wanting to intervene.
Dan: So, what's the justification?
Will: Okay, good, I get more sentences. Justice Alito writes for this one. So, he has two justifications. One is, well, we did it in the Skokie case, which is when the Supreme Court famously intervened to allow the Nazis to march through Skokie, Illinois. There are some similarities between that case and this one, although there are actually some crucial formal distinctions. Like, there, the Illinois Supreme Court actually denied the stay. Whereas here, the New York's highest court sent the stay back to somebody to bring it back to them. But that's argument one.
Dan: Yeah. There still was a possibility that the applicants could have gone back to the highest court of New York, right?
Will: Yeah. And if you read the Skokie opinion also, which talks about this issue, they say, also, the First Amendment is special. The reason we have to intervene here, even though it strains our jurisdiction principles, is because there's a special First Amendment right to get an adjudication of your right to speak before you go to the parade. So, unless that principle has somehow been expanded here, it wouldn't work.
Justice Alito's other argument, which might actually be correct, although is exceedingly technical and would require us to make up a bunch of new law, is that the All-Writs Act maybe allows us to evade the finality requirements of the certiorari statute. So, the argument would be, “This case is not final yet, but it will be one day, and the All-Writs Act allows us to act to preserve our jurisdiction over our eventual cert jurisdiction. So, even though it's not final, we can act now, because we won't be able to act later.”
Dan: Because the case would be moot.
Will: Okay, so, just to grant the idea first. Like, if a state has an execution pending and they're about to execute the condemned person and the state court is still sitting on the case, you might say, “Look, we can keep him alive to make sure that we can still hear the case later,” because it would then be moot.
It wouldn't exactly be moot. It's just that eventually the Purcell principle [chuckles] will kick in. Eventually, it really will be the eve of the election. And so, the Supreme Court won't be able to act because of its own equitable principle that it shouldn't act too late.
Dan: Yeah. This is a rule that I think that federal courts are not supposed to meddle too close to an election. That rule does not apply to state courts, right?
Will: Right. But it would stop the US Supreme Court from intervening in whatever's going on in the state courts if we wait too long. So, because we have created a rule that we can't intervene too late, we now have an extra power to intervene early to ensure that-- because we wouldn't have allowed ourselves to intervene late.
Dan: Even though it's technically late under the court's reasoning from an earlier interim order decision Abbott.
Will: It might not be that late.
Dan: Okay. It’s not late as that.
Will: It's not as EV.
Dan: Okay.
Will: So, that would be the-- [crosstalk]
Dan: I'm still confused.
Will: The thing that's actually most like, which Justice Alito can't talk about because he dissented in that case, is AARP v. Trump, where the court intervened in a non-final lower court decision in the middle of the night to stop deportations of a group of accused enemy aliens out of the country.
And part of the reason they felt like they had to intervene then is that, even though the lower court hadn't acted yet, the lower court was clearly not going to do anything before it was too late, and the court was worried it'd be too late. And it was going to be too late in a similar fashion. It's not obvious the court can't still do something about people who've already been deported, except that the court is concerned that it can't. So, there's a like we have our own equitable principles that are going to keep us from intervening later, so we got to act now.
Dan: Okay. A lot to say about that one. Is there anything else we should say or should we try to get to the third thing we're going to talk about?
Will: We can try to get the third thing.
Dan: Okay. Well, then if we are, we should do it now.
Will: All right.
Dan: Okay. The third thing we're going to talk about is a merits opinion that came out last week. I should note there were some merits opinions this morning that we are not going to talk about today. We may get to eventually.
This is a case called Villarreal v. Texas, and it is about the scope of the Sixth Amendment right to counsel and the power of trial courts to restrict the ability of a lawyer to consult with their client in the middle of the client's testimony at the trial. There's this general principle that when someone is testifying, they're not supposed to consult with a lawyer to have the lawyer craft the testimony. We think that's meddling testimony.
Will: Although in depositions, we do this all the time, right?
Dan: Yeah, that's true. The lawyer's right there and saying, "Don't answer."
Will: Right. So, one crafting is the well-known and impermissible tactic of supporting perjury, where you're like, "Don't forget you're supposed to say whatever." That's [crosstalk]
Dan: Totally impermissible.
Will: But a lot of the crafting might be going on is more like, “Look, when they ask you a question, stop rambling.” One of the first rules of teaching somebody to testify is just like, “Answer the question and stop. It will be tempting to just keep talking, but don't keep talking.” So, you can imagine a lawyer who just wants to go to their client and say, "Shut up." [chuckles]
Dan: This is one of these cases where a circuit split evolves, because there's two Supreme Court precedents with polar different results, and then there's a fact pattern that emerges that is exactly in between those precedents. And so, precedent one was the court said, “Trial court cannot tell a lawyer that they just can't consult with a client overnight because of the risk of meddling in testimony.” That's a situation where a client is testifying, there's a break in the trial, and the client is going to continue testifying the next day. You cannot just say, "Lawyer, you cannot talk to the client at all."
Will: Right. There's lots of other stuff you might want to talk about, right?
Dan: Yes. If there's a middle of the day break in the testimony, the court could say, “Lawyer, don't talk to the client right now,” because we think there's a significant enough chance that the thing the lawyer would want to talk to the client about is the substance of the testimony. We don't like that meddling.
Will: Right. If in the middle of your client testifying, you're like, "Can I go talk to my client about what witness I should call after this?" The trial will be like, "You can wait until after the testimony is done to do that."
Dan: Yeah.
Will: Right. Okay.
Dan: So, this is in the middle of those two, because this is an overnight break. But it was not what we would call a total denial of the right to counsel. The trial court just says, “Look, you can talk to the lawyer, you can talk to your client. I'm going to limit what you can say. You can't manage the testimony.” Not totally clear how this is enforced, because the trial court is not there listening to the privileged conversations between lawyer and client.
Will: Right.
Dan: But it's enforced, I guess, by the lawyer's ethical obligations to follow the court's order.
Will: Yeah. Plus, I think the risk that the client might later say, "You know, the lawyer told me to do X." Okay. So, is that okay?
Dan: I think that's the issue. Answer, in an opinion by Justice Jackson, what the trial court there did was fine.
Will: Yeah. An overnight limitation is fine as long as it's limited to "Don't talk about the testimony," and they could have talked about other stuff.
Dan: Yeah. I thought this was a pretty clearly written effective opinion. It's got, I think, seven Justices. So, everybody but Thomas and Gorsuch, who are going to concur in the judgment. Maybe a little bit of disagreement between the majority and Justice Alito, who does join, but I think concurs in order to shade a little bit.
Will: Yeah.
Dan: Because the majority suggests, “Well, there are lots of things that a lawyer might want to talk to the client about that might be incidentally related to the testimony.” And Justice Alito seems to think that it's more restricted. The kinds of things that the lawyer should be allowed to talk about are more restricted.
Will: Right. Justice Alito is the one who brings up this hypo of like, so what if I want to talk to you about is like, “You just said a bunch of stupid stuff on the stand. And unless you fix it in the next two hours of testimony, you're going to have to plead guilty.”
Dan: Yeah. But if you go back to the majority, it says, for example, "A court cannot prohibit a defendant from obtaining his attorney's advice on whether and why he should consider a guilty plea, even if the why includes the impact of his ongoing testimony on the trial's prospects."
Will: Yeah.
Dan: Aren't those two things contradictory, or is there some daylight?
Will: They seem to be walking through various hypos. Justice Alito thinks it would cross the line to say, "We will really need to secure a detail unless you clean up mistakes A, B, and C that you made today on the stand." So, maybe what they agree is, if you've just committed an irreparable mistake on the stand, then you could talk about the consequences. But if it's a reparable mistake-- [crosstalk]
Dan: So, if it's backward-looking, it's okay. But if it's forward-looking, it's bad.
Will: Yeah.
Dan: Okay. Now, if your client is smart enough to infer from your backward-looking commentary what they could do forward-looking, I'm not sure which way that cuts.
Dan: Okay. What else to say about that?
Will: Can I ask a broader question about this?
Dan: Sure.
Will: Okay. I think this is a great Justice Jackson opinion, by the way. We sometimes get accused of not praising her enough since this is a great opinion. It starts at this really nice framework about how the criminal defendant has all these rights. "If and when a criminal defendant takes the witness stand in his own defense, his status shifts. He doesn't shed his rights as a criminal defendant, but he assumes some of the burdens of a testifying witness."
This is an important, interesting dynamic in trials. Like, the defendant who doesn't testify has ironclad rights. The defendant who does testify, suddenly there's evidence that can come in that wouldn't come in otherwise. It's probably what makes taking testimony a really high-stakes decision. Is it possible there's a third way here? So, there's a recent article coming out in our law review, actually by Laurent Sacharoff, called The Accused Speaks, that describes the common law right defendants had to talk at trial without testifying.
Dan: Oh, interesting. Because there was a rule that you couldn't testify under oath.
Will: At the founding, you couldn't testify. The founding idea was that it would be cruel and unusual and stupid to let the defendant take an oath-- [crosstalk]
Dan: Because he would damn himself, right?
Will: Obviously, the defendant will deny that he did it, whether he did or not, and that will damn his soul before God. That was the rule.
Dan: No, that’s actually the rationale. Yeah.
Will: That was the theory. And so, it would just be stupid and cruel to let the defendant swear. But obviously, it would be Stalinist not to let the defendant talk. So, you just let the defendant talk. Then there was some of that was representing yourself, some of that was like there was a special space, you just comment, like you were on trial, so you can say whatever you want.
Dan: Like, were you providing commentary in real time, like shouting while other witnesses were testifying? Or, getting up on the stand and saying, "I'm going to say stuff. It's not under oath"?
Will: There are a bunch of state cases about this. Some of the examples, like the witness would talk and then the accused would comment on why it was false. [audience laughter]
Dan: I like that. I like that. I like that.
Will: A bunch of states have this right in their state constitution. Some of them erased it. I don't know what the status of that right is under the Privileges or Immunities Clause or whatever, but it actually seems like it might be an important piece of the puzzle here, is that the current framework assumes you have only two options, the formal role of witness, where all the law applies to you, or the role of defendant, where you get all these special rights. If you have both, then we got to-- But if we just had the old system where you don't take the stand in your own defense, you're not a real witness. But you get to talk, then I assume you could talk to your lawyer what to say.
Dan: Interesting. Is there an argument that that should be constitutionally required?
Will: I think there might be. I haven't run it to ground, but I would think the Privileges or Immunities Clause, if it protects other-- It's at least as deeply rooted as the right of parents to parent-teacher conferences.
[audience laughter]
Dan: Okay. And then, anything to say about concurrence in the judgment by Justice Thomas, joined by Justice Gorsuch? It's not altogether that different. It's not a radically different approach. Although, interestingly, it has a whole fact section. Justice Thomas does this sometimes. Sometimes that's a clue. When other Justices do it, that maybe there is a stolen majority. I don't think that's the case here. I think he's just being thorough. But he seems to think that the majority opinion opines on too much, but not a radically different approach.
Will: Yeah.
Dan: Okay.
Will: That was our substance. You said we should leave about 10 minutes for questions, and we've left eight, so we kept on track.
Will: Okay. Should we make people come up and use the mic?
Dan: I think, unfortunately, that one of our mics is not working, so people are going to have to come up and speak if they want to be on the show, speak into one of our microphones.
Will: You can say your name or you can be anonymous. So, just let people guess who you are.
Female Speaker: First, thank you both for coming. I am a big fan, so this is a great time. I guess I'm hesitant to say this since you both seem to think Villarreal was a good opinion. I did not necessarily think that. So, I'm curious as perspective. I would have thought that if anyone on the court was going to champion the Douglas-Brandeis-Marshall type views, it might have been Justice Jackson. So, what are your thoughts on the fact that she wrote the majority?
Dan: I think that's a great question. I confess to being a little surprised at how much unanimity there was on the court. I wonder whether the court saw it as an easier case, because the instruction that the trial court gave was, I think, pretty narrow.
Will: Yeah.
Dan: It just said, "Don't manage the testimony."
Will: Right. Well, I also wonder if this is part of-- The opinion might have read very differently if Justice Alito had the majority opinion. There might have been five votes for something more like Justice Alito's that says, “Look, they could prohibit a lot more than this, and we don't really trust lawyers to obey these instructions. And so, of course, this is fine, because if anything, it didn't go far enough” versus Justice Jackson that seems to say, “Look, this is fine. There's a limitation, but after all, we're trusting the attorney to decide to draw the line.” So, sometimes you might want to write an opinion like that, so that you can characterize what happened in a less bad way.
Dan: I'd say I think we both thought it was a reasonably effective and well-written opinion. I think the merits are a little bit more complicated. I think there's a decent argument that maybe trial courts should just not be allowed to tell lawyers what they are allowed to speak about. That is too much of an intrusion into the attorney-client relationship, that once the attorney and the client are speaking, that's really beyond the bounds of what the trial court can supervise.
Will: Would that be your view, even for lawyers other than the defendant's lawyer? Like, if I'm testifying at somebody else's trial and I have a lawyer, can he come up to me, sit next to me on the stand and talk to me as I'm testifying?
Dan: I don't think you have a-- Do you have a Sixth Amendment right to have a lawyer with you at a trial?
Will: No, but I probably have a due process right or something?
Dan: Maybe. I wouldn't extend it that way. I would say as part of the Sixth Amendment right, clients have the right to consult with their attorneys. And then, beyond that, we can't look inside the black box. I think that's one argument you could make.
Will: Yeah. Okay. Maybe.
Dan: So, you totally buy the majority.
Will: I'm skeptical of all these cases. I think I'm going to go full accused speaks on this one.
Dan: Okay. But with respect to this, I don't quite understand your skepticism. You're saying that you're skeptical that the client should even be allowed to testify?
Will: [laughs] Well, maybe.
Dan: Yeah. Under oath.
Will: Okay. But I guess we have to do that. I've just got to believe in about the case that says you can stop their lawyer from talking to them overnight. Like, I understand the precedent, but I'm not sure where that comes from. But then, I'm also-- [crosstalk]
Dan: But you can't stop the lawyer from-- [crosstalk]
Will: Right.
Dan: Right. You think they should be allowed to stop the lawyer from consulting overnight.
Will: Yeah.
Dan: I mean, the Sixth Amendment does say you have the right to the assistance of counsel. Don't you think that implies that you can't stop the client from consulting with counsel over at least some period?
Will: Sure.
Dan: What if there's a rule that says, “You can have an attorney, you just can't speak to the attorney during the trial?” That doesn't work, right?
Will: I agree. That doesn't work. I agree. But also, does the right have to be 24/7? Like, if there was-
Dan: Business hours.
Will: -before trial, right? Before trial, if the lawyer says, "I want to go visit the jail and talk to my client," they say, “Well, okay, but not in the middle of the night.” Maybe there'd be some case where it really does have to be in the middle of the night. I'm not saying it would be never, but it wouldn't be crazy to think sometimes you have to wait, because we have other things to do. I'm not sure.
Dan: Okay. I think we have time for one more. Remember, we did one of these live shows here a few years ago. We had similar issues. People a little nervous to ask questions, I guess. You're intimidating.
Will: There you go. You provoked them.
Dan: Shamed them.
Male Speaker: Thank you both for coming. I was a little surprised in the Bonta case not to see any concurrence, probably by Justice Thomas, about Privileges or Immunities. I was wondering what you guys thought about that and what you would think a Privileges or Immunities analysis might look like.
Will: One of the complaints I think the dissent makes this, is that in Dobbs, Justice Thomas was the one who said, "I'm not okay with all the other substantive due process rights. We should reconsider all of them and only recognize the ones that are grounded under the Privileges or Immunities Clause," where Justice Thomas thinks all these rights belong. And so, then I had to go back and check what did Justice Thomas say in his Dobbs concurrence? What did he say in Troxel v. Granville? I do think it's a puzzle.
Now, again, maybe this is where the fiction, this is not a real opinion and only a per curiam opinion kicks in and Justice Thomas will feel the need. Maybe he's already drafting his concurring opinion for the merits case they'll get in two years in which he'll lay out his comprehensive theory of the original understanding of parents' rights.
Dan: And he may not have joined the per curiam. The per curiam must have five Justices who were willing to sign it, right?
Will: Can it be the narrowest opinion? Because if there were two Justices who would have done more-- [crosstalk]
Dan: Like, a Marks rule.
Will: Yeah, I don't know.
Dan: I think a per curiam, if it's actually the opinion of the court, it has to be the opinion of the court.
Will: Okay. But Alito and Thomas would have granted-- [crosstalk]
Dan: Okay. But that doesn't mean one of them could have said, “Okay, I'll agree to the per curiam, and the other said, I won't.” Because within this one posture, this is a situation where it's okay for a Justice not to join and not to tell us whether or not they joined.
Will: Yeah. Okay. But then, the other thing about Justice Thomas is that he has a long-standing skepticism of the rights of children in public schools. So, then, he's the one person who thinks that children have absolutely no free speech rights or Fourth Amendment rights when they're in public schools. So, when he does write this great concurring opinion about the Privileges or Immunities Clause and parents' rights, it's going to be interesting.
I think it could all be consistent. I think he thinks that children have no rights, because schools stand in loco parentis, and because children have no rights against their parents, they have no rights against their schoolmasters. Now, he could say, “Therefore it follows from that, the schools really have to stand in loco parentis and can't interject their own view.” But it's going to be a complicated story.
I had a student a couple years ago write a research paper trying to dig into do an originalist Privileges or Immunities Clause analysis of parents' rights. There's a lot there that hasn't been fully canvassed and laid out. I mean, now is the time for me to start writing.
Dan: Yeah. As Justice Kagan noted, there are a bunch of these cases already pending at the court or working their way up. So, presumably, we will see a fuller opinion on this eventually, unless this per curiam just is seen to resolve everything and that's it.
Will: Right. Well, it does happen. So, I've heard from some people who are working these cases, like, you see this opinion and you think, well, maybe we just shouldn't bother. Maybe at this point, just abandon all the cases, because it is clear which way things are going. So, it does sometimes happen, as people like to say, that the Supreme Court's interim orders turn out not to be very interim, because once the court has told us what they think about it, everybody just goes home.
Dan: Okay. Do you want to lead us out?
Will: Yeah. Thanks to all of you for coming. Thanks to those of you listening. Thanks to the University of Chicago Women's Board, the University of Chicago Federalist Society, and the Constitutional Law Institute for sponsoring all of our endeavors.
Dan: And if there is a long delay between this and our next episode, it will be because we've been barred from conferring with each other.
[audience laughter]
Will: Thank you.
[applause]
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