Divided Argument

Easy Win

Episode Summary

We discuss the Court's new Code of Conduct, catch up on shadow docket happenings, and debate what historians can teach originalists. We then recap the argument United States v. Rahimi, (the Term's big Second Amendment case). Finally, we stay on brand by circling back to Pulsifer v. United States from the October sitting, where the Justices puzzled over deep questions about statutory interpretation.

Episode Notes

We discuss the Court's new Code of Conduct, catch up on shadow docket happenings, and debate what historians can teach originalists. We then recap the argument United States v. Rahimi, (the Term's big Second Amendment case). Finally, we stay on brand by circling back to Pulsifer v. United States from the October sitting, where the Justices puzzled over deep questions about  statutory interpretation. 

Episode Transcription

[Divided Argument theme]

Dan: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps. 

Will: And I'm Will Baude. 

Dan: All right, Will, it's been a little while, but we are back, and I think we're going to stay on brand for this episode. And we're going to talk not about super, super cutting-edge stuff, but we're going to spend a lot of time circling back to an argument from October in a case that's not even probably the highest profile case from the October sitting.

Will: Anything from Pulsifer?

Dan: Yes. It's going to be a statutory interpretation case, criminal case, kind of case we're interested in. Sure. Are we a month and a half late? Yeah, but that's okay. That's not why people come here. We are not your place for breaking news. We'll get to that towards the end of the episode. But before then, I guess we should briefly discuss some actual breaking-ish news just to make a gesture towards doing that. A number of things, probably the most significant of which is the court finally did release the promised suggested code of conduct. They'd talked about how they were working on this. Maybe they couldn't find agreement, people have been asking them to do it, and I guess they got their act together and they did produce a document, The Code of Conduct for Justices. It is apparently agreed to by the whole court. They sign it at the end. There are no noted dissents, separate opinions, anything like this. 

Will: I think I have to claim another mea culpa. I think I predicted you were going to get like a letter where they said something like, well, all of us kind of-- like some of the letters they've done on ethics issues like--

Dan: That we all voluntarily follow the--

Will: Right. Here are general views. I was not expecting something with underlined bold faced or underlined small caps canon 1, canon 2. There are canons. There's a code of conduct. It's legit. 

Dan: Yeah, but they have a little note at the beginning, which sort of an apology almost. It's like, “Look, we have a lot of rules. We follow about ethics. We never wrote them down in one place, and we think this is causing a little bit of misunderstanding. And so to dispel this understanding, we're issuing this code, which largely represents a codification of principles we have long regarded as governing our conduct.” 

Will: That's true, isn't it?

Dan: I think so, yeah. It contains things, pieces of things we've seen other places. So it has some language about recusal and how it's actually a problem when Justices recuse unnecessarily because it's the equivalent of casting a vote in favor of the respondent, because the petitioner always needs five votes to overturn the lower court's judgment, that appeared in Justice Scalia's opinion in the Cheney case a number of years ago. I don't know if that was the first place that came from, or I can't remember if that was quoting something else before that. But stuff like that, stuff we have seen, it draws a lot from the canons that govern lower court judges. There's some differences here and there, but I don't think there's anything that's like a really surprising addition, something that seems to change the status quo in there. Did you see anything like that? 

Will: I don't think so. I mean, there are a few things that were interesting. Like they addressed the book thing. They said that a Justice should not speak at or participate in an event that promotes a commercial product or service, except that a Justice may attend and speak at an event where the Justice's books are available for purchase. That was interesting. 

Dan: And then related to that, there's some discussion of the extent to which Justices can use their chamber staff to work on their other projects, and the court, it says, “Yeah, we can--

Will: I thought specifically addressing spouses. Like, they have a rule-- [crosstalk] 

Dan: Yeah, I thought that was interesting. 

Will: Yeah. Which are both sensible, but narrower than I think what a lot of people might think that the appearance of propriety requires. 

Dan: Yeah. 

Will: So, if your spouse or another person is known by the Justice to have served as lead counsel for the party below, or to be an equity partner in a law firm that appears for the court and might receive income, but if your spouse was second chaired the trial below, that's fine, apparently. 

Dan: But you think just that goes beyond what most people think is necessary to avoid an appearance for impropriety?

Will: No, the opposite. My point is, the rules don't go as far as--

Dan: Oh, yeah, I see. 

Will: If you look at the rule, there's nothing that obviously says, “Justice Thomas can't decide an executive privilege issue relative to the release of Ginni Thomas’s text messages,” that might be covered by an interest that could be substantially affected by the outcome of the proceeding depending on-- but yet that was a thing that a lot of people thought know clearly over the line. I thought the explicit mention of the rule of necessity. 

Dan: The thing about disqualification, doesn't it say that they have to disqualify if their spouse is acting as a lawyer in the proceeding, or do you think do you interpret that as just acting as a lawyer in the Supreme Court case itself? 

Will: I think that's in the Supreme Court proceeding.

Dan: Yeah. Rather than--

Will: If in case were given [unintelligible 00:05:28], I think they're still a lawyer in the case. They probably have to have withdrawn from the case or something. 

Dan: I guess that's right. Yeah, that's the only way to really read that. That is strange. 

Will: Yeah. I actually thought the most interesting thing in the whole document, which I think was in the commentary rather than the notes itself, was about income from teaching. So, I think this is in the notes in the commentary at 12 to 13, where it mentions Justices relatively limited outside compensation, but they can get a certain amount of compensation for teaching at an accredited educational institution, I think we all knew that. What I didn't know was that associate justices must receive prior approval from the Chief Justice to receive compensation for teaching, and the Chief Justice must receive prior approval from the court, and they cite a Supreme Court resolution from 1991, which I'd never seen before, but I had thought, we were always told the Justices decide everything for themselves. They're never allowed to second guess each other's suffix decisions. 

Dan: Yeah, that's interesting.

Will: There's actually one little place, nothing else that you might care about. One little place where actually the Chief is accountable to the court and everybody else is accountable to the Chief. 

Dan: Yeah. Perhaps not for ethics reasons though. Maybe because the Chief needs to agree that you're getting your work done. 

Will: That's right. Anyway, I didn't know that and I wonder-- So is this going to quell all the haters? 

Dan: Not completely. I saw the next thing people were really emphasizing about it is the lack of an enforcement. Honestly, that one doesn't bother me quite as much because it's not clear to me exactly what kind of enforcement mechanism would really work given the Supreme Court's place in our system of government and in the judicial hierarchy. And I do think that I gave a quote to Adam Liptak of The New York Times about this yesterday. I do think it's good that they did this. I mean, it's good that they are explicitly acknowledging that like, “We hear you. We think that the criticism is misplaced, but nonetheless, we hear you, and we feel some obligation to kind of explain ourselves,” and it's an effort to do that. So, I think it's good. 

It does at least take away a very good talking point for critics of the court, which is they don't even have an ethics code. And so, I think it's good that they did this, even if it's just a codification of stuff that they were already doing. Can't hurt to write it down and put it in one place. Yeah, it takes some of the pressure away for Congress to write an ethics code if they won't even do it for themselves. You can debate the substance of it. You can debate the enforcement. I'm less worked up about the enforcement mechanism. There's not a great enforcement mechanism for lower court judges, even. You can refer it to Court of Appeals, blah, blah, blah. But absent impeachment, you can't fire the judge, even if they do something super unethical. Maybe you can remove them from hearing cases for a limited period of time, but you can't take away their income unless you go through impeachment. And so, I guess I would focus more on the substantive content. 

Will: Yeah, I agree. 

Dan: Nothing in this, as far as I read it addressed, or at least would have suggested a different result in any of the recent kind of controversies. It looks like Sotomayor is allowed to do what she does with books. It says you have to report things like gifts but doesn't say you can't receive a gift of an RV from a friend. 

Will: Yeah, it's a little confusing because it does in canon 4H, it says, “You can accept reasonable reimbursement of expenses for permitted activities which should be limited to,” blah, blah, blah. And I don't know if that means that unreasonable reimbursements are forbidden or just those also have to then have to be treated as gifts which are also allowed. 

Dan: Yeah, I assume that then it would be a gift and gifts are allowed. Maybe it just wouldn't be considered a reimbursement. It would just be-- 

Will: I guess there are people who can't give you gifts who maybe can reimburse you. If Harvard is currently in the affirmative action case, you can still go judge the moot court at Harvard and get reimbursed, but you can't also accept like a lavish.

Dan: Harvard always has the Supreme Court Justice do the moot court. Maybe there's occasional exceptions, but to my knowledge, they always have one. I don't really know how law schools get Justices to do this. If I was a Justice, I would be like, “Look, this is my day job. I don't want to go do more of my day job, just like on some Saturday night at Harvard.” 

Will: Really? If you were a Justice and John Manning said, “I really want you to come back for the moot court. While you're here--" You'll have his ear and get to tell him that you want him to hire, whatever.

Dan: Will Baude.

Will: Somebody better than that. You'd go.

Dan: Like, every nine years-- Each of them must go every nine years or-- [crosstalk] 

Will: Every six years, because they're not all-- I don't think they all go. I don't think Justice Thomas judges the Harvard moot court. 

Dan: Yeah, probably. Justice Kavanaugh probably isn't welcome.

Will: And they pick their asks, right? They’d get one of your friends to ask you. 

Dan: Yeah, still, maybe I would do it once if I was a Justice, but get invited to a lot of stuff, and just of all the things to get invited to. Then you've got to sit there, and in theory, you read the briefs, and you have to sit through an hour and a half of arguments. 

Will: What would you want to get invited to do as a Justice? 

Dan: Just hang out at the beach and pretend to teach a class, where you show up and riff about some of your opinions and then go hang out at the beach. 

Will: Yeah, I think it's pretty easy to riff as a moot court judge. I think that's part of the appeal. 

Dan: Yeah, but you got to sit there for-- 

Will: They just judge the final stage. They don't judge them all. It's just like-- [crosstalk] 

Dan: I understand, but there's like two advocates on each side. In the smartphone era, I have a really short attention span. I do my best. [crosstalk]

Will: I love judging moot court, because in moot court, you don't just sit there, you just get to ask hard questions. 

Dan: Yeah, but then you have to read the briefs to think of the questions. 

Will: No, you don't. 


Dan: Don't you have to grade them on the briefs? 

Will: I don't think so. 

Dan: At Harvard, they award a Best Brief Award. The judges-- 

Will: [crosstalk] for you. 

Dan: The judges go confer, and then they come back and they say, “We're giving Best Brief to this side and Best Advocate to this person.” 

Will: You think they all read the brief with care? 

Dan: Well, they're supposed to. They're doing their duty. 

Will: All right. 

Dan: Okay. So, any other reactions to the Code of Conduct? 

Will: No, I think it's great. This is an easy win. They should get a lot of credit for it. 

Dan: You don't think it's a concession? They shouldn't have conceded to the haters? 

Will: Well, that's what I was going to ask. So, I have read a blog post on the Vola Conspiracy where I sometimes post complaining about the last two sentences of the opening to the Code of conduct. The part that says, we're doing this because people are complaining, suggesting that the court should never acknowledge. Even if the court does things in part because people are complaining, they should never acknowledge that. That's like an important red line for the court is never to admit they read their own press. 

Dan: I think that's silly.

Will: That seems like the kind of thing I should believe. I don't believe it, but I wanted to check whether you think I should believe that. 

Dan: I don't know, they work for us, right? I think it's okay for them. The whole practice of writing opinions is an effort to explain what they're doing and make people think it's legitimate. And sometimes, when the thing you're doing isn't in the context of a case, you might have to explain it in a different way. But I think it's okay to say, we've gotten a lot of criticism, we think it's a little unfair but people are allowed to criticize, and let us just tell you why maybe it's not a thing you shouldn't be so worried about. 

Will: Yeah. Oh, actually, there's one other thing I love. It might be my favorite part of the whole thing because it's something that I said they should do. In the Commentary on page 11 when they talk about recusals, they also note, the court receives 5,000 to 6,000 petitions for writs of certiorari and 97% of this number are denied at a preliminary stage without joint discussion among the Justices as lacking any reasonable process of certiorari. Recusal issues must be considered in light of this reality. I think I suggested they should just have a rule we don't note recusals on the discussed list. This is not quite that. They're not saying it's a rule, but they're just saying, “Keep in mind, 97% of these positions have been denied without anybody actually looking at them.” 

Dan: Yeah, they do note that the recusals on orders list. 

Will: I take it this is their way of saying, "We're probably going to miss some recusals on the discu-- And keep that in mind."

Dan: They say the Justices rely on the disclosure statements required under the court's rules and identifying interested parties that may present grounds for recusal. 

Will: So, if we discover that, oh, secretly, Harlan Crow owed a share in this hedge fund that owned an interest in this random case that was obviously frivolous, and we forgot to mention that Justice Thomas didn't participate in it because nobody noticed. 

Dan: This is perhaps though an argument in favor of them not accepting lavish gifts from people that hypothetically could have an interest in entities before the court. If they're not going to be able to be sure in every case, maybe just don't take the RV, don't take the private jet, don't take the hunting trip. 

Will: It's easy for you to say, Dan. You have your RV and your private jet. 

Dan: No, I have none of these things, and no one has ever asked me to accompany them on a private jet. 

Will: Well, they're not going to now because they refuse. 

Dan: You remember, I don't exercise any power over anybody, really. I can't even convince you of anything.

Will: All right.

Dan: People didn't do that, but it would be clear they would gain nothing out of it other than the very, very, very limited pleasure of my company. I guess they could influence what unimportant cases we cover on the pod, but-- 

Will: Yeah, we’ve got favorable coverage. 

Dan: Yeah, I'm not sure getting access to our 17 listeners would be worth the value of a private jet flight from St. Louis to some other location, but perhaps someday. Okay, ethics code. What else? So, you were at the Federal Society National Lawyers Convention last week? 

Will: I was. I was there to discuss the 14th Amendment to Section 3s application to President Trump, as you know, whether Trump has committed insurrection and therefore can't be president anymore with Michael McConnell, who strongly disagrees with me in front of a crowd. 

Dan: Was the crowd more hostile to you? You could tell?

Will: I definitely did not have the room on my side, I think you could say that. One person came up to me at the reception afterwards to say, “I went to that talk because I thought this guy's going to be the absolute worst. But then you weren't so bad. I'm still a Trumper and you're still wrong, but you weren't so bad.”

Dan: Oh. Okay.

Will: I was not the absolute worst. 

Dan: Okay. You were just bottom 10th percentile. 

Will: I tried to convince people. We'll see what happens. 

Dan: I had a little exchange with you on Twitter related to this. And the prompt was something that I guess Paul Clement said at the convention. I was not listening to the convention, I was not attending the convention, and so I don't exactly know the context of the claim. And so, I don't want to debate actually what Clement was saying or trying to say, but I just want to use that as a jumping off point to just continue this conversation with you. 

But according to Twitter, Paul Clement former SG briefly, my boss, one of the best Supreme Court advocates, he said, “I love historians as much as the next person, but the solution is not law schools hiring more historians. Most historians find new documents often not part of original public meaning, or write revisionist histories not engaged with original public meaning.” I thought that was interesting, and I flagged it for you on Twitter and try to figure out what the high priests of originalism think about this claim. You disagreed with the notion that law schools shouldn't hire more historians. You're okay with historians. 

Will: Historians are great. Some of my favorite colleagues are historians. 

Dan: Okay. But you also disagreed with the idea that originalists are doing some of the stuff historians do, finding obscure documents which bear on original meaning. You said that's wrong. 

Will: Yes. 

Dan: Okay. That seems like too strong of a statement, because certainly if you read-- Look, if you read a bunch of originalist briefs or briefs that have sections designed to appeal to originalists, they are digging through a lot of old sources, some of which are more known and less known. They're finding cases from the Old Bailey and things like that. And so I agree. I think maybe what you're channeling there is this idea that if we found James Madison's secret diary, which he said the opposite of what-- I really meant the opposite of what people understand the Constitution to say, nobody seriously would say that changes what the Constitution means. And to extent people say that, they're caricaturing originalism. 

Will: That's not what I'm saying then.

Dan: Okay. That’s not what you're saying? What are you saying? 

Will: There really are very few-- [crosstalk] 

Dan: The thing I just said is you agree with obviously true, that finding some secret document doesn't change everything. 

Will: I'm not sure about that, either. 

Dan: Oh, really? Okay. 

Will: But I'll just say, originalists do not look at the Old Bailey. There are virtually no originalists who in history, part of the standard is finding old documents, especially archival documents that are not online and bringing them into the public record. I don't know of any originalists who's not also a PhD historian who does that kind of work. They might be obscure in sense like you've never heard of it. 

Dan: You're saying they don't find their own primary sources? 

Will: Yeah, they mostly. I'd say, your average, very good original scholarship uses primary sources that they were not the first person even to cite-- 

Dan: Right. But this is exactly why historians-- We need historians to find the documents for the originals to cite. 

Will: One of the questions is just, are historians and originals doing different things? I think they are doing different things. The historians find the documents and bring them into the public light, and then the originals figure out what they mean. So I think there's a big division of labor there. I do think finding new documents is useful. That's not a thing most originals do, and some documents more useful than others. I also think historians don't do law. So they frequently-- 

Dan: Can I just stop you went there? There's a lot of historians who do a little bit less with identifying heretofore unknown primary sources. They actually are just rereading the primary sources and reorganizing them. Think of Professor Mike Klarman of Harvard. His book, The Framers' Coup. He didn't go and find a bunch of secret stuff from the founders nobody else had found. He took familiar materials and reorganized them and reinterpreted them. 

Will: I love Mike Klarman, but it's actually very controversial whether to call him a historian.

Dan: Because you think it should require finding primary sources. 

Will: Well, he doesn't have a PhD in an American history department. 

Dan: No historians in Britain can be historians. 

Will: I'm not bringing it for these purposes, but I have been present at multiple arguments in multiple law schools about whether Mike Klarman is a legal historian. I would say the majority of you is he's not. I think he is, but just like that. 

Dan: The majority of you of the folks you talk to, he is the Charles Warren Professor of American Legal History. So maybe that does-- 

Will: Legal history? If you ask a lot of historians, they don't think legal history is history. 

Dan: He won the Bancroft Prize in American History from Columbia University. 

Will: Yeah. Although not for The Framers’ Coup, right?

Dan: No. 

Will: The real thing, I think we were also then arguing about online is that I think that the law of the past is the thing originalists do, and it's much more different from history than people realize. History is an input into that, obviously. Like, you can't talk about the law of the past without knowing its past. So, I think historians are really valuable, and many originalists need to do a better job engaging with the secondary historical literature. But I also think most historians need to do a better job engaging with legal theory because they often don't actually understand what the legal stakes of the debate are, which would be fine if they didn't care. But if they want to go around claiming that cases like Heller are wrong, they have to know more law than they do.

Dan: That's fair, but it nonetheless is the case that finding new documents can still quite significantly bear on original public meeting. Maybe some originalists aren't as equipped to do that than others, but it strikes me as that there's a close relationship between these things, even if on your view of originalism, they're not exactly the same thing. 

Will: Right. You were the one trying to convince me that if we found James Madison's diary, it shouldn't be important. I think it should be important. 

Dan: It should be important to the extent that it bears on original meaning or original law. To the extent, it bears on just his own secret motivations, it's not relevant, right?

Will: Right. But my guess is even knowing his secret motivations would tell us would probably cast some of the things he did in a different light that might bear on original meaning or original-- [crosstalk] 

Dan: Even if those things wouldn't have been known and available to legal decision makers at the time?

Will: It depends on what the hypo is. No, the more it's just about James Madison's mental state, the more it doesn't matter, if we found a secret that wouldn’t affect-- [crosstalk] 

Dan: [crosstalk] original law either. 

Will: James Madison was a space alien. Actually, was just doing all this stuff to mess with us, and everybody went with it. That wouldn't really tell us anything?

Dan: Or, like a secret agent of the British trying to undermine the new American Republic. 

Will: If we learned that his real reason for writing something was to try to refute some other objection, and we didn't realize how prominent that other objection was. The fact that James Madison secretly thought that objection was prominent enough that he had to be responding to it might actually help us re understand the debate. Such a fragmentary understanding of what was happening that even understanding really well one person's thoughts. 

Dan: Okay. So, finding obscure documents is helpful. 

Will: Yeah, I agree with that. 

Dan: So, we should have more legal historians. 

Will: I agree with that too. Also, more originalists. 

Dan: Yeah. The strong form of this argument seems to be one that is designed to privilege certain kinds of people making these kinds of arguments. Because in general, it seems like the historians are tend to-- because a lot of them are not fully on board with the originalist project. They're not making the argument that Heller is great. Some of them are, but most of them are not. 

Will: Are any of them? 

Dan: It's a big world out there. 

Will: Joyce Malcolm, I guess. 

Dan: There could be lots of historians who are just working on that in private. 

Will: [chuckles] They're good. Yeah. And again, I don't know how the original conversation started, but if you were thinking something like, as the courts become more originalist, what do law schools need to do to make sure that we're training people to engage in this in the same way that maybe we had to hire more law and econ people when antitrust cases became more law and econ-y. Then, one answer would be, let's hire historians. That'll be the way to help train people to do originalist legal work. I think it's correct that, while helpful, might be inadequate. 

Dan: But doing the legal work might also require understanding what these documents are. You can't just go on Westlaw and be like, “Find me old cases,” and you read them without some broader contextual understanding. 

Will: A cluster hire of matched pairs of historians and originalists who work together? 

Dan: Maybe the University of Chicago Law School Constitutional Law Center should sponsor joint degree candidates of hardcore died in the will originalists who will come get Chicago history PhDs and go off and become the most influential members of the originalism field invited every year to San Diego. 

Will: Yeah. Well, if you know somebody who wants to fund that kind of enterprise. I will say it's actually interesting. The number of people in the academy who have a PhD in history and also self-identify as an originalist is very small. 

Dan: Yeah. But the number of self-identified originalists is fairly small to begin with. 

Will: Well, the number of self-identified originalists, they're probably 40 or 50.

Dan: But of thousands of law professors. 

Will: I think the number of anybody-- And not just law professors, the number of professors in any department of university who have a PhD in history and self-described as an originalist might be one and a half. 

Dan: Half?

Will: Somebody who's not a professor yet, but like a fellow who'll probably get a job soon. But I don't want to out him because I think it would be bad for his career if people knew he was an originalist. 

Dan: Okay. Who is the one? 

Will: Christian Burset at the University of Notre Dame. 

Dan: Yeah. That's what I was wondering, if he was the one. 

Will: I may have just added him, actually. 

Dan: Well, he's safely ensconced in tenure at Notre Dame. So, everything's okay. 

Will: Hope so. 

Dan: Okay. Well, we need more, okay?

Will: I agree.

Dan: Make some work. 

Will: Also, a very moving speech at the Fed Soc Convention. It's not at all legal, but it was the big lecture is the Barbara Olson Memorial Lecture in honor of Ted Olson's wife. Barbara Olsen, who was killed in 9/11-

Dan: Yeah. 

Will: -and Barry Weiss. 

Dan: Barry Weiss.

Will: Came and gave that-- She was invited to give the talk months ago, presumably was going to talk about cancel culture or something, and then ended up giving a stem winder about how the attack on Israel is a sign about the possible fragility of Western civilization. 

Dan: Yeah. I didn't read it carefully. I skimmed the transcript, but it seemed like it was veering back and forth between Israel and then the great civilizational struggle is like wokeness. It seemed like there was still a good amount of that in there. 

Will: No, it was a mix. It was very-- [crosstalk] 

Dan: She's not really clear the relationship between those two things, but--

Will: I will say, it's funny since we've talked before about weird things that happen in the Mayflower ballroom with that Scalia. The old claim of people chanting Morrison versus Olson, I think was a claim of what happened in that same ballroom at the Mayflower Hotel. 

Dan: Yeah, I think we later found it was maybe in a different hotel. 

Will: Oh, that's right. It was. Yeah. 

Dan: Mm-hmm.

Will: I will say that it is the most number of members of the Federal Society I've ever seen in tears at one time. It was really quite a scene. 

Dan: What was the number prior to that- 

Will: [laughs] 

Dan: -given that you seem to have had a working number heading in to the event? 

Will: I had to think about that. Number four. That might have been two or three or something. 

Dan: Okay. What was the number? I'm not asking you to out anybody, but what was the number? 

Will: Dozens?

Dan: Dozens. Wow. So, I did not attend. I don't expect attending. I think it would be interesting to attend, but I also like, I would feel weird.

Will: I would chaperone you.


Dan: I don't know if you're the right chaperone, because they see you as kind of a lib in that group. You're really peripheral. You're just barely-- They haven't revoked your card yet, but you weren't audibly booed at the-- 

Will: There was no booing. There was no booing, and I still had never met Leonard Leo. 

Dan: Exactly what I would expect you to say, if you were a shadowy agent of the secret big money influence operation. But that's okay. I'll take your word for it. A couple other quick things. So, friend of the show, Florida Solicitor, General Henry Whitaker, was here at Wash U last week talking to our students as part of the Federal Society. He and my colleague, Connor Clark, had a great conversation. I learned that Florida has a pending shadow docket request seeking a stay pending appeal in this case involving Florida's law that-- Always be careful about how you describe these things, whether you're stacking the issues. But it's the law that is being talked about as being aimed at drag shows. This has been enjoined by the lower courts. And so far, that injunction has not been stayed. 

So, Florida went to the Supreme Court seeking a partial say. So, they didn't say this whole thing is wrong on the merits. It was a more targeted request that said basically challenged the universal injunction aspect of it, rather than just giving relief to the venue that was challenging this law, enjoined it in its entirety. And so, Florida drafted a shadow docket request saying, “This goes way too far, just limit it to the parties here,” which I thought was kind of a savvy, strategic thing. But that's been fully briefed now for 9 days. No, sorry, 11 days, and the court hasn't ruled on it, even though there was a response requested by Justice Thomas on October 25th, and then it was fully briefed by Friday, November 3rd, but nothing. Is that weird? Do you think that suggests that someone is drafting something? There's some disagreement.

Will: Right. That's not weird if they’re drafting something, and something that's not too short, right?

Dan: Yeah.

Will: One possibility would be the court could just unanimously say the injunction is hereby narrowed. Not saying, that's because we don't believe in nationwide injunctions. They could not say, why just say, this injunction we're going to narrow. So, I take it they're doing something other than that. Either somebody's dissenting from that, the court's not doing that, and Justice Gorsuch is writing a stem winder of a concurrence about this or something. Do you think it matters that it's a free speech case? I feel like in free speech cases, we often suspend the normal rules. Like, we had this over breadth thing and we have different rules for facial challenges and chilling effects. Does that make it a harder case for the less of a clean vehicle? 

Dan: I guess it just depends a lot on what you think about the merits, which, as I said, the filing doesn't really get into. But obviously, yes, it is hard to escape that. If some members of the court share the intuition that the law is unconstitutional, then that would be a fairly strong, I guess, reason not to want to narrow the scope of the injunction. It's an interesting issue. I haven't gotten into the merits of it at all, but it involves this question of what is the standard for something being obscene as to minors, to what degree can the government restrict certain kinds of speech as it is available to minors that it can't restrict for adults?

Will: This is the [unintelligible [00:30:46] case, right? 

Dan: Yeah. And the violent video games case from 10 years ago or so, where the court struck down a law limiting access to violent video games for minors. But there is some category, right, some category of things that are not obscene in general. So the government can't just make it criminal, but obscene as to minors, something that it's okay for government to say, minors can't have access to this. You can ban sale of pornographic movies to minors even if you can't ban them generally.

Will: Right. Yeah, that is an interesting question. 

Dan: Yeah. 

Will: And this Hamburger Mary’s establishment apparently has a lot of obscene things at it. 

Dan: Well, that's the allegation. [crosstalk] They would deny it. They would deny the charge of obscenity. 

Will: I've never been to a Hamburger Mary's. I see there are locations in the Midwest, but I've never been to one. 

Dan: Is there one in St. Louis? Oh, yeah. Well, there is. Let me see. 

Will: I think my nearest one is Milwaukee. 

Dan: The menu doesn't seem to be online. Like, it's a pretty inadequate website, I have to say. 

Will: Well, the website says, each location has their own character because each city is unique. 

Dan: But I want to know what's on the menu. 

Will: It's a family of locally owned independent restaurants. So maybe they're different menus. 

Dan: Maybe it doesn't actually exist in St. Louis. 

Will: Don't take your kids. It looks like it's in Kansas City. 

Dan: Yeah, there is one in Kansas City. Maybe it used to be in-- I can't quite figure out what's going on here. I do like hamburgers. As long as we're talking cheeseburgers, just like just a hamburger. Hamburger is not my favorite, but get some cheese on there. Totally different story. One of many things you learn about me from this podcast that has nothing to do with Supreme Court and that you're not particularly interested in. So, anything else to say about that? 

Will: No, we just see what happens. I predict a stem-winder of a concurrence in Justice Gorsuch. 

Dan: You must like that phrase. You just said that a minute ago too. 

Will: I know. Sorry. 

Dan: Did you have that one geared up or something and you just wanted to make sure you got it out there? It's a good word. I don't think I've ever had occasion to use it. What is the metaphor for? I'm sure there's some interesting etymology there. 

Will: It's also weird because I feel like a stem winder and a barn burner are kind of similar, but they evoke very different. 

Dan: Yeah. What is the stem being wound? 

Will: I think the stem is the audience. 

Dan: No. Not as a metaphor, but as the literal thing, what is--? [crosstalk] 

Will: A literal thing as a watch. 

Dan: You think that's what it is? 

Will: Yeah. 

Dan: Okay. What does that have to do with giving a rousing speech or something like that, or making an impassioned appeal? Do we have any sense of--?

Will: No. I don't really know. 

Dan: I just pulled up the OED online and I'm actually not getting anything useful out of this. One definition is a keyless watch, another is a geared logging locomotive. So maybe that has something to do with it. Slang a person or thing that is first rate. Also, an enterprising or energetic person. An impassioned talker or public speaker. And then finally, a rousing speech. Good word. We had, don't need to get into it in detail, but there is a short to medium length descent from denial on the most recent orders list came out on Monday by Justice Jackson, joined by Justices Sotomayor and Kagan. It was an 8th Amendment challenge by a prisoner who was talking about how he had been denied any exercise privileges, any access to the exercise yard. It sounds like this prisoner was-- 

Will: For like three years.

Dan: Yeah. Treated pretty badly in ways that were extremely detrimental to his health. But three Justices wanted to grant cert, and clearly the other six did not. Okay. I think that was all my preliminary stuff to get through, and then maybe talk about what we actually want to talk about. Quick, just discussion about some other cases that have been happening. So we did have the November sitting. We'll talk a little bit about something coming out of that sitting, but some stuff that we're not going to get into in detail. Really interesting pair of cases about the First Amendment in social media. This was O'Connor-Ratcliff v. Garnier and Lindke v. Freed. 

Will: This is not the cases about whether it violates my free speech for the government to tell Twitter to ban me, right?

Dan: No. 

Will: It’s a different social media First Amendment cases. Okay. 

Dan: Social media implicates a lot of potential First Amendment issues. This is about whether a public official violates the First Amendment by blocking someone and deleting their comments on social media based on their speech. Someone criticizes you and they block you on their Facebook or Twitter page. 

Will: It's funny because the court granted these cases before when it was Trump versus the Knight Center, right? 

Dan: Yeah. 

Will: I think so the conventional view was, oh, obviously when Trump blocks people, that's unconstitutional because we all have a First Amendment right to get into Trump's mentions and yell at each other. It was the Second Circuit held and then the Supreme Court had granted it, and then I think it must have been dismissed as moot when Trump lost. 

Dan: Yeah. Although to the extent that it was seeking damages as some of these.

Will: I think it wasn't.

Dan: Okay. If it was just an injunction, yes, that would-- [crosstalk] 

Will: Absolute immunity and stuff. 

Dan: That would be moot. Yeah. 

Will: But then these cases were our one on moot court cases recently, and so I had to judge a whole bunch of moot courts about them. It was interesting. Nobody seemed to find them as easy anymore, once we were talking about random municipal officials and state legislators and stuff. 

Dan: Yeah. It was a fascinating set of arguments along to listen to both of them, but I did listen to both of them in their entirety. It's really interesting because for a couple of things. One is the court is really struggling to come up with what the rule should be, and advocates are trying hard to give them something. But I think that it really became clear to me that there's not a really perfect rule here and that-- On the one hand, it is the case that public officials retain some First Amendments rights of their own and there's lots of things they could do in their lives where they are allowed to restrict speech. They can go talk to a group of donors, a group of co-partisans or whatever, and they don't have to always admit the public to those speeches. 

On the other hand, it can't be the case that the government can just block you from learning important information that's coming from the government just because of your viewpoint. And so the question is like, where to draw the line between those two things? The court is clearly really struggling with this. I thought that there was not a super clear ideological valence on this. You did get a question in Lindke from Justice Thomas about the other aspect of this. Like, is it worrisome that Twitter can just block whoever it wants? That has a little bit of a right left valence because know conservatives who are worried about woke media.

Will: But Twitter's not woke anymore. 

Dan: Well, Twitter's-- Yeah, X is not woke. X is based, I think. But other big tech remains woke. But in general, it felt like a lot of the Justices were really asking hard questions of both sides and all really struggling with it. I don't exactly know what they're going to do. They seem like genuinely quite hard cases. 

Will: These seem like cases that might not split along the, so called, usual ideological lines. Do you think it's possible? 

Dan: Yeah, I think so, for sure. I await those. Unlike a lot of cases, it wasn't one where I said I clearly have some instinct as to who should win. My co-clerk, Allon Kedem, used to be at the SG's office and is now in private practice, argued for the person who was blocked in the Lindke case. I thought he did a really good job. And so for his sake, I hope he gets a good result. But in terms of what the law should be, I share the intuition behind his suit that this is really troubling and that we can't just let government-- 

Like, if this is your source of information about the government, it can't be the case that they can just-- Every time you criticize a government official, you lose access to that. But I do acknowledge that where to draw that line. If you draw a limitless line and saying everything that government actors do is in whatever part of their lives is state action, that could have some other weird consequences. Maybe you need to just make a social media specific rule. I don't really know. It's hard. I'm glad I don't have to decide it.

Will: Yeah. Some of it's like an internet. We often do the search for analogies, right? 

Dan: Yeah.

Will: So, is being on their Facebook page like being on their Christmas card list? Like the president might just stop sending me Christmas cards because they're pissed at me, or is it like being at the city council meeting where I think there's some sense you can't just eject the people who have views you don't like from them? 

Dan: Yeah. And so, there was a lot of the advocates who were on the side of the public officials really leaned into that and there was like, “Look, if you have a meeting at your house, you don't have to let everybody in.” Justice Kagan in the Lindke case asked an interesting question about that, which is like she asked the government's advocate, “Gosh, you keep leaning on these analogies, but isn't social media just like fundamentally different?” And is it a mistake to be so focused on analogies to the physical world, which might be true. 

Will: Yeah. But then [laughs] you got to figure out what to do. 

Dan: Yeah. It is a hard one. No more to say about it at the moment, but we will revisit it at some point. Okay. We also had probably the biggest argument of the November sitting was United States v. Rahimi, very, very important Second Amendment case. Do you want to talk about that one briefly and then go to the main course, the entree, which is Pulsifer. 

Will: Yeah. So, Rahimi is about the constitutionality of a federal law, 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by people who are subject to a domestic violence restraining order. 

Dan: So not just people who've been convicted, but just before that, before you get to that stage. 

Will: Right. And then, there are various rules. Like, it has to be a restraining order that was issued with notice and opportunity to be heard by the defendant. And that either makes a finding that the person the restraining order was likely to be a danger or makes a specific finding that the person is not allowed to use force against one of their intimate partners. So, there are some specifics about what it covers. The Fifth Circuit held the provision facially unconstitutional instead of-- [crosstalk] 

Dan: As they do. 

Will: As the Fifth Circuit does. And so, the SG went to the Supreme Court and said, “Tell the lower courts this is not what Bruen means,” and the Supreme Court is going to tell everybody this is not what Bruen means. 

Dan: The Fifth Circuit really chose it spot wisely because we have a very sympathetic petitioner here.

Will: That's a joke, right? 

Dan: That's a joke. Yeah. It's not strictly relevant to the case other than atmospherically, because all that matters for the criminal conviction is that there was the order imposed and then he had a gun. But this defendant, Rahimi, did a lot of shootings over a really short period of time. After a man who bought drugs for him started talking trash, Rahimi fired into the man's house with an air rifle. The next day, after colliding with another car, he shot at the other driver, returned to the scene, fired more shots, and fled again. Three days later, he fired a gun in the air in a neighborhood in the presence of children. A few weeks after that, after a truck flashed its headlights at him while he was speeding, he cut across the highway, followed the truck, and then fired multiple shots at another car that had been traveling behind the truck. 

And then, this is my favorite one. In early January, Rahimi pulled out a gun and fired multiple shots in the air after a fast-food restaurant declined a friend's credit card. And so yeah, this is a bad guy. The domestic violence part of it is not funny, but this guy seems to have been spiraling out of control, really the kind of person that we don't want to have a gun. 

Will: So, two weeks ago, recently, I was at a symposium at Notre Dame about Bruen and Bruen's methodology, which is interesting for two reasons. One, I presented a paper coauthored with Robert Leider about how the court should interpret Second Amendment in Rahimi, which I'll have to talk about in a second. 

But the other is there was a panel of practitioners, including somebody who had worked for the Federal Defender Service on Rahimi and Rahimi type cases. He noted, which makes sense, that there's a lot of tension between the gun rights groups and the criminal defendants. Even though, now this case is there, all the gun rights groups are on Rahimi side. But every other Second Amendment case Heller, McDonald, Bruen, and I guess even the weird-- some reversals are all like civil cases that involve a so-called good guy with a gun because the [crosstalk] sort of like crime is bad and the solution to bad guys with guns is good guys with guns. And so, they're very careful to bring good guy with the gun cases, and this is the first bad guy with a gun case.

Dan: Because it's a criminal conviction where they can't choose their plaintiff. 

Will: Yeah, exactly. Now maybe that in some sense that shouldn't matter. In some sense who the plaintiff is doesn't matter to the criteria legal theory. But to the extent that that part of what's going on is a sense of like, is it reasonable for Congress to decide that this class of people is likely to be dangerous? Then it's sometimes hard to get away from the facts in front of you. One of the people on the panel described himself as being somebody who thought we should have more gun control but less criminalization of gun stuff, which is, I think a reasonable position that a lot of players might take. 

Dan: How would you have gun control without criminalization, like, civil rights? [crosstalk] 

Will: More civil things. Yeah, it wouldn't be total lack of but like less mandatory minimums for using guns and more will come take your guns away and find you if you don't use it correctly or make it harder for them to sell you guns. As he said though, the combination of being anti criminalization but pro-gun control is like the most unpopular quadrant, sort of like being against the troops before the war. 

Dan: Yeah. 


Will: So, the wind is not at his back. Also, General Elizabeth Prelogar has really just been on a tear lately. I thought she was incredible in some of the late spring oral arguments last term, and she was an A plus performance in Rahimi, I think. And the lawyer for Rahimi's counsel was earning a different grade. 

Dan: The argument went very well for the government, I'd say, not very well for defendant's counsel. I thought that in particular the SG really was able to hammer home, develop a theory, a theory of relying on some of the earlier cases, you know, what are the conditions under which it is okay to bar someone from gun position? They pulling some language out of the earlier cases. The government's theory is that there's these two prongs. You can deny people access to weapons if they're not law abiding or if they're not responsible in some way. And responsible can be they're not adults or they have done other things. They're subject to a domestic violence protection order. The court, I don't know, if all of the Justices bought that exactly as the test. [crosstalk] 

Will: Yeah, I don't think they did, but they bought something very similar. So, Justice Barrett, when she was Judge Barrett in 7th Circuit, had an opinion arguing at length on originalist grounds that the right principle is dangerousness, take weapons away from people who are dangerous, and then some question about fit. So like felons who people-- [crosstalk] 

Dan: Which is not clearly different. It's maybe just responsible as it came out here. 

Will: Yeah. Right. Yeah. And then other things like Martha Stewart insider trading might not be dangerous. And so, at argument, and I don't think this was as clear in the briefs, but at argument, the SG said, “Responsible means dangerous.” Like, she just left into half of her test is Justice Barrett's test, presumably what the Supreme Court will say. And then part of the question is is that the only test. So, I think if Justice Barrett gets her way and she and the SG argue about this, dangerousness would be also the test we'd apply to the felony possession statute. 

People who are committed of dangerous felonies or felonies that indicate future dangerousness can't have guns, but people who commit welfare fraud probably can. And the SG said, “No, that's different. There's also a law-abiding prong that's separate.” There's a pending cert petition about this, I think involving the welfare fraud hypo that several times Justice Barrett said, “What about this?” The SG said, “Well, I hope you give us a chance to brief that in a future case, and we might grant that other case after you win this one.” So I'll go on a limb and say, the court will, by a large majority, unanimous or a lopsided majority, will reverse the Fifth Circuit and say, “If there's a finding of dangerousness, you can lose your guns,” as is true under at least part of this statute. Maybe there has applied challenges in some cases, maybe they're not, but they'll uphold this. 

Dan: Like, if it was a categorical rule without the finding of dangerousness or something like that? 

Will: Yeah. Well, the statute has two prongs. So, what about the orders that don't make a finding of dangerousness but do prohibit you from using force? Should we see those as the same as a finding of dangerousness or not? I don't know if the courts can answer that, but they'll reverse the facial constitutionality here. Within a week of issuing that opinion, they will grant cert in the felon obsession case. They have penny on the docket and get into that one and probably say that you can bring as applied challenges to the felon obsession statute, the exact shape of which we may not find out. 

Dan: Yeah. Do you think the original Heller majority would have been okay with that? I think I'm not sure, Justice Kennedy-- [crosstalk] I don't have inside knowledge of the case, but it was speculated that sort of language in Heller that was designed to not call into question. Those kinds of laws was added to keep him in the fold. 

Will: Yeah. And look, Justice Scalia liked rules. So, I'm not even sure whether Justice Scalia would like as applied challenges, and he'd say, “Well, how are we going to figure out, whether being convicted of cocaine possession is enough to indicate that you're likely violent,” et cetera. That said so, one thing I discovered in the course of writing this piece is there is a statute that solves this problem. So, there's a statute, it's 925 that says that, “Anybody who wants to try to prove to the Bureau of Alcohol, Tobacco and Firearms that their conviction is such that they no longer represent a future danger can apply to ATF to have their right to have a firearms restored.” 

Dan: I'm just going to guess that ATF never grants those. That's just a guess. 

Will: Yeah. Well, it's even better. Yeah, exactly. And then there's judicial review if they deny them. But like 30 years ago, Congress started issuing annual appropriations writers that forbid ATF to enforce the statute. So, it's on the books. And then every year, Congress tells ATF they're not allowed to process any. And then in 2000 and 2001, the this probably had a case that said, “Because ATF is not allowed to process them, you're not allowed to seek judicial review,” because they're never denied because ATF is not allowed to deny them. So, for 30 years, the obvious solution to the aspects of Second Amendment challenges has been like sitting there in the US code barred by Congress. 

Dan: That's really interesting. 

Will: Got to predict that. I could imagine, if Justice Kennedy was still in the court, he might at least try to reopen that, found some way to say to-- [crosstalk] 

Dan: To order Congress to provide the appropriations? 

Will: Yeah. I don't know exactly what they do. A canon of constitutional avoidance, somehow it seems like, at a minimum, letting the executive branch start trying to do a case-by-case adjudication of whether this rules over broad seems like it wouldn't be-- 

Dan: Yeah. So, one thing that I thought was interesting was Rahimi's counsel, I thought, maybe ended up conceding a little too much in the argument. And so maybe didn’t. I think the logic of the defendant's position would really need to be something fairly categorical, that basically these kinds of things are just not allowed. 

Will: Yes. I think the best categorical rule defendants make is that permanent categorical bans on keeping weapons even in your own home are basically never allowed. And in fact, historically, many of the examples of dangerous people having their right to keep arms regulated were more about like using your guns in public and carrying them around. But there are relatively few examples, other than people who are not part of the political community at all, of people who couldn't have a gun even in the safety of your own home to protect yourself from other criminals who you might be associated with. That is a radical position in some ways because now we have a lot of statutes that say people can't have guns. He knew he needed to make that argument. And then as he was making it, he knew it wasn't going anywhere. 

Dan: Yeah. So, he ended up conceding at various points, “Oh, well, courts have these traditional equitable powers that would let them take people's guns away.” And the Justices seemed a little puzzled by that concession. 

Will: Yeah. But again, if the equitable powers were like—Yeah, the other version of his argument that is less radical. He tried to make was sort of an inverse facial challenge argument. So, the normal way you think about a facial challenge is the lower court said the statute is facially unconstitutional, which means it's unconstitutional always. So, if we can think of a bunch of cases where it is constitutional, then it's not facially unconstitutional. So, there are enough like Rahimis of the world from this law seems reasonable, it should be okay. 

He wanted to say, like in Lopez, the court struck down the Gun-Free School Zones Act because it didn't have a commerce clause. It's not that there aren't constitutional applications of a federal ban on guns near schools, if the gun traveled into your state commerce or if you're a member of the armed forces or whatever. But those hooks weren't in the statute. And so, the court struck the whole statute down. And so, he wanted to say the same thing was true here that you could dream up lots of applications of this statute that would be reasonable, but because none of the things that make it reasonable are in the statute other than the dangerousness finding, you should say like” The statute is too broad. It doesn't say the stuff that assures us that this is not infringing on a bunch of rights,” which I think is not how the law works, but was worth a try. 


Dan: Yeah. It's not crazy, but it just didn't seem like it was getting traction. So, I share your intuition. Do you think it'll be you said, maybe unanimous, maybe not. What do you think? 

Will: I would bet on unanimous. 

Dan: Yeah. 

Will: Yeah. At least a concurrence on the left saying also Bruen is bad and a concurrence on the right saying also some of these orders are issued about due process, too easily, or something. 

Dan: Yeah. Okay. Anything else to say about Rahimi? 

Will: No. 

Dan: Okay. As promised on to Pulsifer v. United States. This was the first case argued of the term, argued back on October 2nd, and you want to set it up for us, Will?

Will: They're probably going to make you do it because I think you know such a better than I am. But as I understand it, this is a statute of it whether the word and means or or. 

Dan: Yes. Well, that is the defendant's view, right? 

Will: The government's view is whether and is distributive? 

Dan: Yes.

Will: I can read the statute-- [crosstalk] 

Dan: Read the statute. 

Will: So, in 2018, President Trump signed something called the First Step Act, which broadened the set of people who are entitled to eligibility for possible relief from mandatory minimums. So, a bunch of people maybe can now get out of their mandatory minimums. 

Dan: It's called a safety valve. 

Will: Right. But to be eligible, you have to show under 3553(f)1, the defendant has to show that he, “does not have, A, more than four criminal history points, excluding any criminal history points resulting from a one-point offense as determined out of the sentencing guidelines. B, a prior three-point offense as determined under the sentencing guidelines. And C, a prior two-point violent offense as determined out of the sentencing guidelines.” And the question is, does a defendant who has A but not B or C, or B but not A or C, but not B or A, are they eligible?

Dan: Or, any two, but not the third one? 

Will: Do they have to show that they don't have any of those things, or do they have to show that they don't have all of those things? So, the structure is a defendant does not have A, B and C. Does that mean you don't have any or does that mean you don't have all? And so the petitioner says and means and, so the government has to show you don't have all of them as long as you have some but not all you win, because otherwise and would be or. And the government's view is-- [crosstalk] 

Dan: And the defendant says, “Paints the government as reading the word 'and' to mean 'or'.” So, the defendant's view of what the government is doing is the government is saying defendant doesn't have A, B, or C, but the government is saying something else.

Will: And below, that was one of the government's arguments that and means or. But now they want to say is, does not have A, B, and C means does not have A, does not have B, and does not have C. So, you distribute the does not have to the A, the B and the C. Thus, meaning, that you have to show that you don't have each of them. That's the setup, right?

Dan: Yeah.

Will: I've been following this case for a while because I remember there have been all sorts of funny bedfellows. I think there's a leading opinion by Chief Judge William Pryor in 11th Circuit, not always regarded as a super soft on crime kind of guy who goes for a version of the defendant's arguments on textualist grounds. There have been several different positions about exactly how to parse this. The government basically argues, if you look at what these things actually are, it makes no sense to think that you'd have to have all three of them, because it's a funny constellation of things. Like, if you have these big criminal history point things, why would we care if you also happen to have a little one? But the petitioner says, “No, we can come up with some not irrational explanation for why you do it this way,” and that's what it says. 

Dan: Yeah. So, the thing that I think made this case one that was particularly worth talking about for us is the oral argument. It really got deeply philosophical in that the Justices started asking these really, I think, big picture questions about what is statutory interpretation, rather than just being focused on the specific language here. There was plenty of that too. There was a lot of different kinds of examples being given, like, don't drink and drive means don't do the combination of drinking and driving. But if the doctor says before your surgery, “Don't drink, don't smoke,” it says don't drink, eat, or smoke, you would interpret that as don't do any of them. 

Will: No, it has to be and.

Dan: Yeah. Don’t drink, eat, and smoke. I thought that's what I said. 

Will: You said. Or-- 

Dan: Well, maybe that's what you say. Who knows what the recording will reflect? But I meant and then in that context, you would certainly interpret that a little bit differently, which suggesting that we do a fair bit of contextual interpretation with these kinds of commands. But I think that led the Justices to start thinking like deep thoughts about statue of interpretation. So, there's this exchange with Justice Alito and Pulsifer Counsel, Shay Dvoretzky.

Will: So, for instance, there's this like, on the one hand, the defendant wants to say, “Let's be textualists.” The textual reading is and means and it doesn't distribute, which I basically agree with. I'm not convinced by the doctor example. But then the other Justice try to press him to concede that like, “Well, it depends on context,” such as Kavanaugh kept saying, “It depends on context.” And then just as Gorsuch said, “Well, aren't you really doing a policy argument.” When you say context, you're saying something like reading it one way would be good, and reading it one way would be bad, so we should do it the good way. And then Justice Kavanaugh says, “No, we would never do policy arguments. It's context.” And similarly, some people thought, “Oh, the question is, what did Congress intend?” And then, “Oh, no, of course we would never look at intent.” So, I felt like, yeah, this is like a little bit of a late stage textualism. Like, everybody knows they're supposed to be textualist, but they know that they need some other stuff like common sense. 

Dan: Yeah.

Will: But they aren't sure if they're allowed to say that anymore. 

Dan: Yeah. So, Alito's saying, how does language work in general? What is statutory interpretation? Who is the speaker we're talking about? We're trying to understand a statute, I guess stuff that I would have thought they already all had working pretty close, clear working theories of, but I guess not. They're interesting questions. It's not like these are dumb things for them not to have theories of, but it was interesting that they wanted to go deep on this.

Will: Yeah. I think I assume a lot of them do have theories of it, but they may not actually all quite have the same theory. 

Dan: Yeah. No, I'm for sure. But Justice Alito seemed to be asking in this very open-minded way about what is this whole enterprise about? What are we trying to do? And then, Justice Gorsuch says, “As you flagged a little bit--" I thought was being kind of unfair. He seemed very much on the defendant side in this case. So, defendant has, I'm pretty sure, has one vote here. He seemed to be pretty-- [crosstalk] 

Will: [crosstalk] Justice Jackson, so for sure. 

Dan: Yeah. I think so. But asking the government, he says, “You have this thing called common sense in your brief.” I don't know that canon. And so, the advocate said, “Well, it's called construing the statute. The text gleaning evident purpose.” And he says, “Oh, so this is purposivist.”

Will: Uh-huh.

Dan: I guess that seemed a little unfair in the sense that it's not really purposivist to say, we're trying to make sense of what this statute is actually saying. And you would look at the whole thing in context to try to make sense of it and try to presume some level of rationality and try to make sense of it in light of the purpose when there's ambiguity. I don't think that's the same thing as just doing pure purposivism. 

Will: I thought it was not at all unfair. I'm not saying it's right, but I agree there is a way to do textualism taking into account absurdity, that's not the same as purposivist. 

Dan: But it's not absurdity, right? 

Will: There are a bunch of related things you could be doing, all of which are subtly different, and some of which are easier to justify than others and come out differently in this case. And so, I do think using the label common sense potentially makes it easy to smuggle in more arguments that are less clear-cut purpose arguments. 

Dan: Yeah.

Will: I'm not saying the government's doing that. They may or may not be. 

Dan: Yeah. There's a lot of discussion of absurdity. It's hard to make the argument that either of these readings would be absurd, such as where you would read it against the plain text of the statute. But I think you can say it's a little bit ambiguous. At least if you buy the government's argument that-- This is Justice Kagan, she was actually a little hard to read on this. She asked hard questions to both sides, but she said, “Look, when you're drafting a statute, you don't necessarily have to-- you're trying to streamline a little bit, not repeat words over and over. And so, you might just use the words at the top that are going to be repeated throughout each section.” 

Will: So, her example was this one, where the doctor says, “Before your operation, I want you not to eat, drink and smoke for 24 hours.” And I got to say, every time she says that, it sounds wrong to me. It sounds like she's supposed to say or.

Dan: Yes, I agree with you. I think that you would interpret it as "or" but for big picture contextual reasons, not because that's the logical reading of the language. 

Will: I think I wouldn't. I think I would interpret it as a Scrivener's error. I would think, “Oh, the doctor said the wrong thing, they said 'and'.” Now I'd probably ask for clarification. 

Dan: That's what I'm saying. Or, you would just-- [crosstalk] 

Will: I would say, “Oh, you just told me not to do all three. Are you sure you meant that, or did you mean 'or'?” [crosstalk] Yeah, I meant or. That's exactly what I do. 

Dan: Yeah. 

Will: That's actually what I think is true of the statute, I think the statute is not really ambiguous, but it's very likely that it says the wrong thing, which is why it matters is the question, what did my doctor want me to do, which because I'm pretty confident they want me to not do the thing they said but do the other thing. Or is the question, what did they say? 

Dan: To be clear, I can agree with you on the doctor example, but nonetheless say, well, in the context of statutory interpretation where you've got these parts and these numbered subparts and so forth, it isn't crazy to say like, “Well, maybe they just were trying to streamline the language and then we should read it as if this phrase carries through.” That's a little different than just buying the doctor's advice argument. 

Will: Maybe, but I think that you just said are two different things. One is they were trying to streamline it, and then the other is we should read it so it carries through. 

Dan: You should read it as if-- 

Will: Well, I just want to say I can agree with the first, not the second. I think this is the Scrivener's error. So it happens a lot of the time that statutes contain mistakes because somebody was trying to streamline it, introduce cross references and accidentally got the meaning backwards, and they did that.

Dan: Yeah.

Will: It's possible that every time that we're pretty sure that happened, we should fix it. There's an interesting article by one of my former colleagues, Ryan Doerfler about this. So the doctrinal rule is that to correct a scrivener's error, you mean need to meet a super high burden. You need to be really sure it's Scrivener's error before you correct it, because we're really worried about non textualism. And he says that doesn't actually make sense. If it's one of these cases where it's not like you're not 100% sure it's a Scrivener's error, but you're 80% sure it's a Scrivener's error. You should correct it because you can tell what they were trying to do. It's a controversial move. That might be right, but it could be that we should not correct it even though it's a mistake. 

Dan: Okay. What else to talk about here? Government's brief, really leans into talking about formal logic, uses some symbols of formal logic which brought me back to college. Took multiple formal logic classes. Super helpful for the LSAT, by the way, although maybe less so now that they're getting rid of the logic games. 

Will: Outrageous. 

Dan: Yeah. Very helpful for thinking about laws being a very clear and logical thinker. But I didn't necessarily think it was the most helpful thing for them to be leaning on. What did you think of that? 

Will: I tend to agree with that. I thought there was a good discussion of corpus linguistics. This really was like a seminar. It hit the whole-- 

Dan: Yeah.

Will: Yeah.

Dan: That was a really interesting part of the argument is they talked about it maybe at greater length than they have in other cases, and they were asking big questions about like, how should we do this? How should we incorporate this data? Is it reliable? How does it inform our thinking? So, they really were using this as this bigger picture opportunity to think about the whole enterprise. 

Will: Yeah. And I thought the government made a point that I think is generally correct that if corpus linguistics tells you that 80% of the time a word is used one way and 20% of the time choose the other way, that really doesn't tell you very much. 

Dan: Yeah. 

Will: The question is, in this case, are we in the 80% or 20%. And the fact that 80% of the time, it's one way just doesn't tell you that much about this case, if I told you that.

Dan: Yeah. If it was 100 to zero, sure. But then you probably wouldn't be at the Supreme Court trying to figure that out. 

Will: If we were reading the Second Amendment and the question was whether it applied to guns, and I said, “Well, 90% of the Amendments in the Bill of Rights don't apply to guns, so we should read this one not to apply to guns.” Well, I don't know, but this seems like it might be the one. 

Dan: Maybe you just do a weighted draw. You're like, “90% of the time this word meant X. 10%, it meant Y. So, you draw 1 ball out of 10.” 

Will: If you're a Bayesian, then obviously the base rate is relevant. But the information about the actual statue in front of you just seems like it's--

Dan: Yeah. Because you are deciding it's a one-shot game or you're deciding the meaning of one word. 

Will: Yes. So I think you can get some information from-- But anyway, it was amazing how much it covered. I guess it's because the things just cut in so much different directions here. I think if I was a staffer when this bill was being passed and I didn't care about the policy outcome, I just cared about getting make sure Congress is doing what it meant to, I would probably show this-- I'd go to the boss and say, “I think we need to rephrase this thing. Is this phrase right?” And suggest we either distribute the do not haves or change the 'and' or 'or'. My guess is that my boss would agree that we should change that. But I also actually think the statute is pretty clear as written and that it's a little suspicious for courts to fix mistakes in criminal statutes in ways that hurt the criminals. 

Dan: Yeah. As you said, you do agree it's probably not what they meant to do. Because it is confusing, why they would have wanted it to be A, B, and C because of the fact that-- It would capture a weird set of cases. It wouldn't render all three of the provisions totally superfluous, at least if you buy some of the defendant's arguments. But it definitely is weird and probably not something that someone would have sat down and thought of. 

Will: Probably not. But then again, if you told me I went to my boss and said, “Is this really what you mean? Do you want to make it or instead of and?” They said, “Well, I don't know. If those are my only two choices, maybe we should keep it as is. We'll cast a broader net.” And then this is one of the points that Shay Dvoretzky Counsel made a lot. But in the end, this is just going to get referred to the judges for judicial discretion, for mandatory minimums. 

Dan: You might have said, do not have the combination of. There's ways you could phrase it that would be completely unambiguous, I think. 

Will: Right. But I could, well, imagine somebody saying basically, even if this isn't exactly how we meant it to work, it actually works pretty well this way given the choice between making it too broad and too narrow. Too broad might better. The problem is that laws, especially at this point, get drafted in this weird way where it's rarely the case that one person just sits down and puts pen to paper about their thoughts. You get earlier drafts and copies and pastes and different versions, and then we all rush to pass it before Donald Trump changes his mind. So it's hard to get too fiddly about it. 

Dan: All right. Anything more to say? 

Will: You have a prediction?

Dan: I think this is heading the defendant's way. 

Will: Really? 

Dan: Yeah. You think the government is going to win? 

Will: Yeah, I think the defendant should win. 

Dan: Okay. Tell me why. Just because you think in this case that the policy concerns will prevail, and that this can't really be what the government wanted. 

Will: Just descriptively, it felt like the defendant was losing, both Kavanaugh and Kagan, and probably Alito and Thomas, and then they can only afford to lose one more person. Just as Kagan, who is, I think likes to take text quite seriously, is quite a textualist, and just as Kavanaugh too, I feel like, would be votes you really wouldn't want to lose if you're trying to win this case. Now I do think it's a case where they were unusually open ended about what they were doing, and I do think also the technical sentencing aspects were stuff that a lot of them didn't totally agree about, like how redundant and crazy would the Justice Gorsuch argument be or not. Justice Jackson made this interesting point. That Chief Judge Pryor also has experience on the Sentencing Commission, quite a bit of experience on Sentencing Commission. And so maybe his view, if one of those prominent conservative judges in the lower courts who's also experienced on Sentencing Commission thinks the pro defendant view is right, maybe it can't be that crazy. 

Dan: Yeah. 

Will: If Justice Jackson, who also had logged some time in Sentencing Commission thinks so, I don't know to what extent they might get some deference on the sentencing side. 

Dan: Yeah. I guess the way I was coming at it is I think we have at least a couple emphatic votes for the defendant, right?

Will: Yeah. 

Dan: And then I agree that Justice Kagan, I think she's 70-30 in favor of the government. She was at least asking questions on the other side, so she's at least mulling it over a little bit. And then I thought a lot of the others seemed still puzzling over it, open minded. You make a good strategic case. Yeah.

Will: Gorsuch pulls these out sometimes. Like Rahimi's, they're these opinions where he somehow pulls out a win for the little guy. 

Dan: But there are ones where he doesn't, for sure. 

Will: [laughs] There are a lot of ones where he doesn't. 

Dan: Yeah. 

Will: I predict Justice Gorsuch will be writing this case. 

Dan: You don't predict he's going to be writing the majority [crosstalk] writing this case. 

Will: He'll be writing something in this case.

Dan: In this case. Okay. 

Will: I was going to use a multi-syllable word for the thing he might write, but you're going to accuse me of reusing my-- 

Dan: Stem-winder? Another stem-winder. 

Will: [laughs] This one will be a barn burner. 

Dan: Okay. Yeah, he did seem worked up. Interesting debate about whether the rule of lenity typically applies to penal statutes to this is this like a statute that criminalizes stuff or imposes a sentence, or is this just something totally different because it's providing retroactive relief to which lenity shouldn't apply? He seemed to think lenity really does apply. 

Will: Yeah. Justice Barrett had the interesting suggestion that maybe it is not a penal statute, it's a statute providing relief. But it should be read broadly because remedial statutes should be construed broadly, a lesser-known canon.

Dan: Which is another purposivist or something. It's a weird rule where you're like, situating it with contextualism is maybe a little hard. 

Will: Yeah. No, and then Kavanaugh wanted to say, “No, it's not purposivist. It's just a canon. There's an established canon that you use context, which might include purpose,” which I don't necessarily disagree with. But it was pretty funny. It was great, but pretty funny how deep into the weeds they were. 

Dan: Okay. I think we should wrap it there. 


Dan: Thanks very much for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please continue to email us at-- what is it? pod@dividedagrument.com?

Will: Yeah. 

Dan: Voicemail, 314-649-3790. 

Will: We do continue to read and listen to those. And at some point, I'll make Dan actually respond to some of them.

Dan: If I must, email is the kind of bane of my existence. I take like a week to respond to basically all emails, which is a source of endless shame and regret. 

Will: I take a day to respond to emails, and I just never respond to the others. 

Dan: Yeah. 

Will: So, my median response time is probably longer than yours. 

Dan: Yeah. Remember to go to our website, dividedargument.com, where we have transcripts, the episodes that come up not too long after the episodes come out. Store dividedargument.com for merchandise. And if we don't record an episode for a long time, it's because Will has been waylaid by angry attendees of the Federal Society National Lawyers Convention who were very unhappy with the Section 3 arguments he was making. 

Will: Story of my life. 

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