After a vacation-related hiatus, we're back to discuss Loper Bright Enterprises v. Raimondo (overruling Chevron) and Corner Post v. Board of Governors (time limits for challenges to regulations). We try to figure out just how disruptive these decisions will be for the administrative state and somehow manage not to waste half the episode debating Supreme Court ethics.
After a vacation-related hiatus, we're back to discuss Loper Bright Enterprises v. Raimondo (overruling Chevron) and Corner Post v. Board of Governors (time limits for challenges to regulations). We try to figure out just how disruptive these decisions will be for the administrative state and somehow manage not to waste half the episode debating Supreme Court ethics.
[Divided Argument theme]
Will: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps, back from vacation.
Will: Welcome back.
Dan: And we are going to try to grind out some episodes over the coming weeks. Will, you have any upcoming vacation?
Will: I'm here for another month. Maybe in August I'll go away for a little bit.
Dan: Maybe you're just playing it by ear.
Will: The family camp we normally go to, we're on the waitlist, so our August plans are all little--
Dan: You got to sign up faster than that, man.
Will: No, it's a lottery. We sign up as soon as we can.
Dan: But that sounds very democratic to be in.
Will: I'm a man of the people.
Dan: You should go to your like FedSoc hunting lodge, right?
Will: I don't know those are as family friendly.
Dan: Will, are you remotely familiar with a show on Amazon Prime called The Boys?
Will: No.
Dan: No. It's great.
Will: If you were making that up, I would not know whether you’re-- [crosstalk]
Dan: I'm not making it up. It's based on a series of graphic novels. It's very absurd, but it imagines a universe where there are superheroes. But superheroes, it turns out, are just monstrous people. It has leaned in quite a bit in later seasons into political commentary, where the principal antagonists of the show, the Superman like villainous character called Homelander is very Trump like. But in one of the most recent episodes, I enjoyed because one of the premises was the villainous superheroes were meeting with a bunch of political elites at a Federalist Society gathering. [laughs] It had nothing to do with law or judges in particular, but the Federalist Society has now become this stand in for these shady, shadowy gatherings of nefarious things. And they're in this meeting, Tek-Knight, who's the evil Batman, was planning to put dissidents into private prisons as internment camps. So, I enjoyed that.
Will: I've never been at a Federalist Society meeting where anybody proposed putting dissidents in internment camps.
Dan: Well, you're just clearly not getting invited to the super high level secret gatherings.
Will: Well, we knew that.
Dan: But it's never too late. Although you may be even further off the list. After your latest New York Times op ed. Want to tell people about that?
Will: I had an opinion piece in the New York Times last week giving my overview of the term and as you might expect if you're listening to this podcast, one of my main themes was the court is basically doing fine, and everybody should stop complaining about them.
Dan: Doing great. They're so principled, they follow the law.
Will: Except for Trump v. Anderson and the United States v. Trump, which are real dark spots, especially just in terms of the court's failure to apply its own supposed principles in those cases. And I hypothesized something I floated to you in our last episode, actually, that the court's partly there. The court thinks that other parts of the country are seized by Trump derangement syndrome, and they are the last responsible adults left in the government. And so, it's their job to stop it, even though that is not an originalist principle that I'm aware of. The Supreme Court should set aside normal principles to stop Trump derangement syndrome principle.
Dan: Well, it's self-defeating, right? Because you're basically saying, “Oh, everyone else is changing the way things normally work to respond to Trump, therefore we should change the way things normally work.”
Will: Yes. That is the problem. I think I call it statesmanlike. It's a sympathetic form of twisting the rules. I understand why you would do that and not think like we're the baddies.
Dan: Did you see the most recent cover of the New Yorker?
Will: I don't know what was on it.
Dan: It's a sketch of the Justices in the court, except the six Republican appointed Justices have just been drawn as Trump in robes.
Will: [chuckles] No, I did not see that.
Dan: I think you probably don't buy that implicit critique. You could have in your op ed, you could have tried to cram in Vidal v. Elster?
Will: Mm-hmm.
Dan: We got three Trump wins this term. You can't trademark Trump too small.
Will: We haven't talked about that case yet. I think that case is a more plausibly orthodox application of the methods you expect from the court. There's a lot of discussion about various famous people and whether you could trademark their lace.
Dan: But if you were fishing for threads, as some members of the SCOTUS commentariat are, you could have tried that one.
Will: Yes.
Dan: Actually, I got some flak from friends about your op ed.
Will: Wait, you got flak from your friends about my op-ed?
Dan: They're like, “Oh, can you believe Baude believes this stuff about the court? Is he this naive?” The first part, the court is so great part.
Will: [laughs]And what did you tell him? Did you say I was that naive or that I was not?
Dan: You know, not in those words, but, yeah, he really believes it.
Will: So, I got flak-- I mean, in both directions. So, if you looked at the comment section of the New York Times, it was basically tons of Baude is an idiot. And also, the New York Times is unethical for not disclosing that he's a Federalist Society member who worked for two Justice Roberts as part of the [laughs] was at the lodge or whatever. But then my Twitter feed, which probably leans significantly to the right of the New York Times commentariat, was a lot of people attacking the other part of the op ed. “You're just a whiny professor,” etc. Although I did have one follower who I especially liked, who tweeted, “Professor Baude also has Trump derangement syndrome, but it is a mild case.”
Dan: Well, you know, fair?
Will: I don't think I'm deranged at all, but I appreciate that.
Dan: Well, speaking of Trump v. Anderson, just to go back a second, you now have the honor of having been called a political hack pretending to be a lawyer by the vice-presidential nominee, J.D. Vance, if you remember that. You remember his thread that I called to your attention criticizing the political hacks pretending to be lawyers who were advancing the Trump disqualification theory?
Will: Yeah, I'd forgotten that was him. I remembered the allegation. I mean, Vance is a YLS grad from a little after my time. I'm sure there's going to be lots of interesting fodder he's going to give us for our discussions.
Dan: Yeah. For better or for worse. A lot's been going on outside of the Supreme Court sphere. The Supreme Court, luckily, they've gone on vacation, as they do, for the summer but--
Will: Stay out of trouble.
Dan: It's been a pretty significant couple weeks in American political history. We had a near successful presidential assassination attempt.
Will: Candidate assassination attempt. Trump's not the President.
Dan: Don't you think it would count as an assassination of a President if he were assassinated? I mean, he was President.
Will: I mean, look, I don't want to get technical, but he is a former President-- [crosstalk]
Dan: And he is not The President. He's a President, but not The President. I think we can round it up.
Will: There's only one President at a time. That's in the constitution.
Dan: True, but still call him-- I think you could say it's a “presidential assassination.”
Will: Ms. Manor says that for titles of which there is more than one, like governor, senator, ambassador, you can continue to use those titles even once the person's no longer in office. So, you can call a retired judge judge. But it's not true for president, that you're supposed to-- That's why it's General Washington, Mr. Jefferson--
Dan: But they all go by Mr. Presidents, don't they-- [crosstalk]
Will: [00:07:13] Yes, but they're wrong. They're wrong. I mean, this is the weird thing about Ms. Manor, is she reports to be describing etiquette, and at some point, I guess the norms shift and she's wrong.
Dan: But, yeah, I mean, it would be rude to say like, Mr. Obama.
Will: I think, The New York Times style. I think my piece of New York Times style was Mr. Trump.
Dan: Yeah, that's fair. But just to the person's face which is when we're mostly concerned about etiquette.
Will: If I run into him, I'll cross the bridge when I come to it.
Dan: All right. Speaking of judicial wins for President Trump, we had another one.
Will: Aileen Cannon?
Dan: Yep, ruled, dismissed, picked up the ball that was put into play by Justice Thomas in the Trump immunity decision, suggesting that special counsel Jack Smith was unconstitutionally appointed pursuant to the appointments clause, and bought that argument and dismissed the indictment in the Florida federal documents prosecution that was pending for her.
Will: I suppose if this goes to the Supreme Court, we'll have to dig into the merits much more than we did in our last discussion. But it seems unlikely this is ever going to get to the court, right?
Dan: Yeah, I think, I mean, less than 50%. I mean, so, I mean, presumably, if Trump wins the election, the whole thing disappears.
Will: Yeah.
Dan: If Trump loses the election, do you think it would get before the court? Do you think something else would make it irrelevant?
Will: I guess if Trump loses the election, I assume the prosecution will continue. And then if the Eleventh Circuit, and then I guess it could [unintelligible [00:08:37] court. The Eleventh Circuit reverses the district court and reinstates misappointment, it's not obvious the Supreme Court would take it or they might. I think if the Eleventh Circuit holds his appointment unconstitutional, I assume the court would feel like they had to take it.
Dan: Does it? Because I'm not sure. But would that make all special counsel appointments under existing law unconstitutional going forward? Is there some other way to do it?
Will: I mean, I do believe it makes the special counsel appointment in Nixon v. United States unconstitutional.
Dan: Yeah, that seems like a real problem.
Will: Which is an odd feature of the case. I mean, it was not addressed by the court, but not all. I mean, I think a lot of special counsels are appointed and are supervised by a US attorney. And there is a statute about the appointment of attorneys to assist the US attorneys in the performance of their duties. The various special counsels who are not at all supervised by a US attorney are the ones who are at issue here.
Dan: Yeah. So, Judge Cannon has gotten a lot of flak in recent months for how she has handled the prosecution. And a lot of people have criticized her rulings and procedural rulings and suggested that she's really got the fixes in for Trump. I do have to say, in terms of that narrative, dismissing the prosecution the morning the Republican National Convention begins does not help perceptions of that narrative. I found that--
Will: What day would be better?
Dan: Not that day.
Will: The day it ends.
Dan: Like a week later? A week before? Maybe it's a complete coincidence, but maybe not.
Will: Well, I do think she's going to be on the Eleventh Circuit a year from now.
Dan: Yeah. And it seems quite possible she's being influenced by that possibility. It sounds like you're convinced Trump is winning?
Will: I mean, he's winning if you had to bet.
Dan: But it sounds like you've priced that in as the thing that's going to happen.
Will: No, it's like a 72% chance.
Dan: That's pretty high.
Will: But anything can happen.
Dan: That's true.
Will: I'm working on another Section III Article now that nobody cares anymore, I thought it was time to double down.
Dan: Is this just a critique of what the court did, or do you have something new to say? I mean, that the other article was really long.
Will: It was very long. But yes, the main topic is the reasoning of the court in Trump v. Anderson, and how the court, in its effort to sweep Section III under the rug, instead made a hash of Article II, what do they do and why that doesn't make any sense.
Dan: Okay, well, probably not going to be at the very top of my reading list, given it's largely irrelevant to anything that actually matters, but I'm sure your devoted fans will dig into that once they get through your back catalog. One thing we're not going to get into at this moment, but may revisit, although I actually don't really feel the need to, is the flailing President Biden has now, four months before the election decided to get on board with Supreme Court reform and is going to unveil slate of proposed reforms. So, to which I would just say too little too late. [Will laughs] The moment to do that would [chuckles] have been like maybe when you had a commission full of scholars.
Will: Well, I don't agree that it's too little too late, but it does seem like at a minimum, you want to put– [crosstalk]
Dan: You think it's too much too early.
Will: [chuckles] Yeah, I think, the old Onion joke about, “In retrospect, we may have resorted to cannibalism a little too early.” [Dan laughs] I still feel that way. But at a minimum, you would think you'd want to propose, obviously, a political legislative attack on the Supreme Court at a time when you had a political majority in Congress--[crosstalk]
Dan: Yeah, well, I mean, presumably. I mean the administration recognizes they're not going to get anything done, but they think this is going to rile up the base.
Will: Yeah, I know, but then why stop there? I don't know just [unintelligible [00:12:09], whatever. If it's not really [Dan laughs], you got to back the court with 1001 people all named Bernie Sanders or whatever.
Dan: You got to point younger Justices than that, man.
Will: We're going to-- Section II makes Bernie Sanders immortal.
Dan: Okay, Section II of what?
Will: The hypothetical Bernie Sanders court packing bill.
Dan: Okay. And then there can be a Section III, and you can become the expert on Section III of that.
Will: I'm not an expert on all Section III.
[chuckles]
Dan: You should be.
Will: That would be a funny way to specialize.
Dan: Yeah.
Will: Certainly nothing to talk about there yet. Well, maybe you'll pressure me into it eventually.
Dan: But I'm bored of the topic.
Will: Me too. The people have spoken, Dan. Let's talk about Chevron.
Dan: Which people?
Will: Our listeners.
Dan: Okay. All right. Well, let's talk about non-Chevron.
Will: Okay.
Dan: As in Chevron is dead.
Will: Is it.
Dan: [laughs]It's formally, legally dead. Whether some form of it will continue on zombie like, we will see. So, yeah, let's talk about-- I think it's the case we've been promising to get to, and the one that is most pressing among the cases we have not yet spoken about, which is Loper Bright Enterprises v. Raimondo. Apparently, my colleague Ron Levin tells me there's been some debate about whether to call this case a Loper or Loper Bright, but the wiser course is to call it Loper Bright, as I understand it.
Will: Because it's a company named Loper Bright, I think so.
Dan: Yeah, but there is a little bit of disappointment among some that the case was not captioned Relentless, which is the related case that it was linked up with it.
Will: Yes.
Dan: In that case, sometimes the court can choose or the reporter's office choose or the clerk's office chooses how to caption the case when there's two related ones, this one is captioned Loper Bright. I assume because the docket number is lower.
Will: I think that's the normal thing, is the docket numbers are lower, although it's a little strange. So, as I recall, the reason that we have two cases is that Justice Jackson is recused from Lober Bright. I think, because it was a DC circuit case from her appointment. And so, to the extent people describe this as a 6-3 opinion, it's actually only Relentless. It's a 6-3 opinion. Loper Bright is actually a 6-2 opinion. Justice Jackson, she joined Justice Kagan's dissent, as we'll discuss and she did this thing she also did in the Harvard-
Dan: Yeah.
Will: -affirmative Actioncase, which should really be called the North Carolina Affirmative Action Case, she wrote a dissent in the case and then said, “My dissent only applies to the North Carolina case because I'm recused from the Harvard case.”
Dan: Super weird. I mean, I understand why they did it this way, but it just--
Will: Well. I mean, what's super weird about it in some sense, is the healthy institutional thing to do would be to just hold the first case and then decide Relentless and GVR Loper Bright.
Dan: Yeah. Why can't, why can't they do that?
Will: Well, in the Harvard case, they didn't want to do that because the facts of the Harvard case were much more exciting for the majority. So, they didn't want to relinquish their good-- [crosstalk]
Dan: It was a private school, and you also had a public school, and that let you cover the territory.
Will: Although since they say it's the same thing-- in some ways, just doing the North Carolina case would have been cleaner. They just didn't want to. And then the fact that it was annoying for their colleague that the case they wanted to talk about was one where she couldn't participate. The Justices were like that's her problem.
Dan: Yeah. Presumably she didn't leave the room when they--
Will: I mean, she joined a dissent that criticizes the majority opinion in Loper Bright--
Dan: Yeah. [crosstalk]
Will: I mean, look, if you could do recusals to say like, “I'm recusing from the parts of this case I'm recused from, but I still have a lot of views on the case I'd like to express.” It's just weird.
Dan: It's almost like you just would rather be able to just say, “Look, it obviously doesn't make a difference because there's a non-recused case that presents the same issue. So, can we just forget about the recusal issue for this other case.”
Will: Yes. None of them really care about the recusal issue.
Dan: Yeah, but I guess appearances matter.
Will: I'm sure that's what the ethics reform is going to address. [Dan laughs] Sorry, sorry.
Dan: Here's a meaningful Supreme Court reform? What about instructing the reporter's office to come up with cooler names for the opinions?
Will: Oh, like the Chevron cases?
Dan: Yeah, like the Chevron cases, civil rights cases.
Will: Yeah. You're going to end up with a Boaty McBoatface if you're not careful.
Dan: Well, we're not going to put it up to a vote.
Will: [laughs] Fair enough. Yeah. Okay. I like that.
Dan: Okay. So that was one of the less substantive things. Perhaps that'll be the smartest thing we say about this case today, but let's maybe talk about some stuff that sounds a little bit more substantive.
Will: I assume everybody who listens to this podcast and has made it 20 minutes in knows that Chevron v. National Resources Defense Council is a Supreme Court case from 1984 that says that courts are supposed to defer to agency interpretations of ambiguous statutes. It's one of the more foundational statutory interpretation administrative law decisions, prompting many law review articles asking questions like, “Does Chevron have one step or does Chevron have two steps?” My colleague Daniel Hemel wrote an article about Chevron Step One-and-a-Half. Cass Sunstein wrote a famous article about Chevron Step Zero. But the basic idea that when the statute is ambiguous, the tie should go to the agency, has been a mainstay of administrative law, certainly since we’ve been studying law. So, I confess I feel a little disoriented that now it’s gone.
Dan: Yeah. And there is interesting cultural historical story here, which is that this opinion, Chevron emerges in ‘84. When it comes out, people don’t really understand it as having made this big change in the law. But then later it’s cited and takes on this status of a doctrine, in part because of efforts by Justice Scalia, at least according to some accounts. I don't know if you accept that narrative, but Justice Scalia becomes a proponent and defender of this doctrine. And then at a certain point, the conservative legal movement that you deny exists very much sours on this doctrine. It's letting unelected bureaucrats regulate business too much. And the mood started to be, we need to get rid of this. And then [chuckles] this is like this-- I don't know what the right metaphor is, but people are parsing these things left behind by the great sage. There's this fight going on about, “Oh, did Justice Scalia really change his mind about Chevron at the end? Did he really recognize the error of his way is?” And there's stuff that you can see that.
Will: He wrote an opinion that hinted in that direction, right?
Dan: Yeah. So, I actually went back and read that this morning, which is this concurrence in the judgment in Perez v. Mortgage Bankers Association. Have you looked back at that recently?
Will: Not recently.
Dan: Yeah, it's interesting. It does suggest some reservations. It suggests that maybe Chevron is hard to square with the APA. On the other hand, at around the same time, he also was writing other stuff that stuck with Chevron. So, this is 2013, and in 2013, he writes a decision, City of Arlington v. FCC, which says, “Agencies get Chevron difference for constructions of the scope of their own jurisdiction.” And that was 2013, and Perez is 2015. So, I mean, if he changed his mind, it happened pretty quickly.
Will: Well, one of the things I've always admired about Justice Scalia was that he had the ability to both take a precedent and really follow its logic even if he also then thought it was bad.
Dan: Yeah.
Will: There were times he would say like, “Look--” he'd even sometimes reject an opportunity to narrow a previous precedent on the grounds that, “Look, I think the precedent is wrong. If you're logical about it, it extends to this, so we should either overrule it or not, but don't pretend it's not what it is.” I've heard rumors that the term that Justice Scalia died, there was something more dramatic that happened and that one day we'll see how far he was ready to go. But I don't think we-- [crosstalk]
Dan: Was there one of the cases that ended up being 4-4, I mean, was it Texas v. United States? Did that have any kind of a Chevron?
Will: I don't think Texas v. United States had a Chevron issue in it.
Dan: Yeah, I don’t think so.
Will: There were a lot of other 4-4s that term. And I've dug into it, and I'm sure Politico will leak it sooner or later.
Dan: But, yeah, whose papers would be the next to come out from that time period? Do we know when the Justice Ginsburg's papers come out?
Will: No, I mean--
Dan: What the timeline is on those?
Will: I don't know. I mean, it would be like her to make them all very public very quickly. But I don't know if that's what she's doing.
Dan: Yeah, I just haven't heard anything about that. I'm sure that someone has looked into it. I don't know about Justice Breyer either. I know we've already at some point mentioned that Justice Souter's papers are decades away, alas, but he wasn't there at that point anyways. And Justice Kennedy, I don't know what he said, but I suspect his long ways away as well.
Will: Yeah, that makes sense. Anyway, yes. So, there's a political transformation in Chevron. I don't know if we want to talk about that first or the law first.
Dan: Well, I mean, is there more to say about it?
Will: I mean, I'm curious what you think is going on. I heard one view is something like conservatives were in favor of Chevron when they didn't control the courts because they wanted to limit the power of courts. And now that conservatives control the courts, they don't like Chevron anymore because it limits their power sort of like the conservative flip flop on stare decisis or something. Is that all it is?
Dan: I don't think that's all it is. But I think that this doctrine does emerge and get championed by Justice Scalia at a point when the executive is in Republican hands. And at a point when Congress had been controlled by Democrats for a big swath of time.
Will: Which way does that cut? I mean, how does Congress feel about Chevron?
Dan: That's a good question. Yeah, it seems like you could go-- it depends a lot. I guess it depends a lot on what courts are doing. Maybe Congress likes it to the extent that it just thinks the court is cleaning up its own work. Maybe the court in Congress doesn't like it, if it is, trust the court to push back on the executive.
Will: I sort of have the impression that, I mean, when Chevron starts in the Reagan administration. It's seen as a conservative decision that helps the Reagan administration ignore environmental laws that they otherwise would be forced to follow. And then now it's seen as like a tool for the Obama and Biden administrations to regulate the economies in ways that the conservative legal movement, so called, doesn't like. I wonder, I was hoping somebody could more careful study, like, what were the good years of the Chevron doctrine? What was the period in which it had bipartisan support? I think it's like the Clinton administration and the Bush administration, which is like when we were in school. So, to us it feels like bedrock, but by Obama, it's already started to fray and even-- [crosstalk]
Dan: Good old days. Yeah.
Will: I also heard another podcast on which my friend and former boss, Michael McConnell was talking about Chevron. And he had an interesting diagnosis that he thought what Chevron was, was really had transformed that in practical terms, when the decision was first announced, it was really seen as more, like the amount of deference was pretty light. It was more like the DC circuit had been known for aggressive, non-textualist interpretation of statutes. And Chevron was a way of saying, “Cut that out. Don't overturn agency decisions on the basis of relatively reaching statutory interpretations.” But then over time, especially once agencies became fully aware of their own Chevron powers, like the agency self-awareness then became part of the problem. So then at some point, agencies would say, “Wow, we have Chevron deference. We can get away with a lot more stuff. Let's come up with more creative rulings.”
And so, the Chevron isn't what it used to be, and that's part of why the court felt the need to bring it down. I don't know if that's true. It was interesting.
Dan: Yeah. I think it is plausible, at least, that it's one thing to defer to a certain decision maker, but then once you defer and then tell the decision maker that you're going to defer, then they recognize they have a lot more freedom of movement.
Will: Yeah.
Dan: One thing on a couple of the points we just talked about, if you pull up footnote 6 in Justice Gorsuch's opinion. This is on page 29 of his separate opinion in the case. He's like--
Will: It’s a long separate opinion.
Dan: [chuckles] It's really long. But he notes in a footnote that, “Hey, by the way, when Justice Scalia was really pushing Chevron, the courts were being dumb and wacky and doing all sorts of things, relying on legislative history and their account of purpose.” And so, in some ways, he's acknowledging the cynical thing that you just said a minute ago, although phrased a little differently. It's like, “Okay, now that the courts are doing what we want them to be doing, let's take the power back from agencies, give it back to the courts.”
Will: You can read Chevron as saying something like, “You should always do textual interpretation first.” That's Chevron Step One. And agencies never do anything that violates textual interpretation. Now, then, you might be tempted to do some other stuff, like legislative history or policy or whatever, but in an agency case, don't do that. At that point, that stuff goes to the agency. And if you're Justice Scalia, you could think of that as like, “We'll do law the way I, a textualist, think law works. And then all that other weird stuff that I don't really think is law, and it's kind of political, that part will be done by the agency.”
Dan: Yeah. And he did say-- I don't remember where he said this exactly that for a textualist, Chevron is a smaller doctrine because you think there's going to be fewer cases of ambiguity on the front end because Chevron, only in theory, only comes into play, or only came into play to use the past tense, in cases of where a court at step one found the statute was ambiguous.
Will: Yes. I think this is Chevron's footnote 9, I think, is the footnote that said, “You're supposed to use all available tools of statutory interpretation before you go to ambiguity.” And so, there've always been some people who leaned into that to say, “We should just be narrowing the scope of Chevron doctrine.”
Dan: Yeah. I mean, because there are other contexts where we say, “You can break a tie if after using all tools, there's ambiguity,” but we never get there. That's the rule of lenity under monitor and practice in the Supreme Court, which is rule of lenity comes in at the very, very, very, very, very end of the task of interpreting a criminal statute. And if you're still left with uncertainty, then break the tie. But we almost never get there.
Will: Right. I think we talked about this when I was making fun of Justice Kagan's opinion in Pulsifer, which explicitly finds two possible interpretations of the statute and spends a while explaining why she likes one of them better than the other. And then it's like, “Well, the rule of lenity doesn't come in because I've already [laughs] persuasively shown that the other one is correct at the very end of the process.” That doesn't seem to the view she's taking about ambiguity in her Chevron dissent.
Dan: Yeah, which we'll get to.
Will: I also had the impression that the way Chevron works--
Dan: -in her Loper Bright dissent.
Will: Relentless. I'm calling it Relentless.
Dan: Yes.
Will: Especially the dissent. The dissent is a Relentless dissent. Because it's joined by Justice Jackson, and Justice Jackson cannot join a Loper Bright dissent. I have the impression that Chevron also really works as a doctrine of paying attention. It's like in an agency case where there's some complicated statute and the agency shows up and says, “This is what we think the statute means.” If that doesn’t seem obviously wrong to you, then you’re a court of appeals judge who doesn’t want to learn more about the Department of Agriculture regulation of milk. You’ll be like, “Okay, Chevron or the Bureau of Immigration Appeals.” I realize that’s doing the steps in the wrong order, but I feel like there’s a way in which that was one of its most important functions, really.
Dan: And now courts are going to have to learn about agricultural regulations.
Will: All right. So what did happen? How do we feel about it?
Dan: Tell us.
Will: All right. Majority opinion by Chief Justice Roberts, and this is a good--
Dan: Joined by Red team.
Will: Red team? They all wear black robes, Dan. [Dan laughs] You're confused.
Dan: Just to be clear, black robes are not originalist. They're a later innovation by the judicial activist John Marshall. An originalist should wear a multicolored robe, right? Isn't that what John Jay wore?
Will: What color were John Jay's robes?
Dan: I don't know. I've been led to believe that the Justices were wearing colorful robes until Marshall came in and said, “No, let's keep it classy.” That was a serious question, though. Are black robes not originalist? Shouldn't the views, as reflected by the Justices in the court immediately after ratification of the constitution control?
Will: No, actually, I think Steve and I discussed this in one of our articles, actually.
Dan: The robes?
Will: Yeah. The point is--
Dan: You don't discuss the robes.
Will: I think we discussed the robes.
Dan: Really? The color of the robes.
Will: Well, the point is law. The point is that there are some norms that are law and there are some norms that are not law. And originalism is theory of law. So as to norms that are governed by law, then the originalist analysis applies. But some norms are just norms, like what color your robes should be. They're not law, even if they're like the norms of judges. And those norms can change just like anything else.
Dan: Okay, so we can have living robe constitutionalism.
Will: And they got a new building. That's okay. They don't have to be back in the Senate-- [crosstalk]
Dan: Although it is a really interesting change for them to move out of a building that's one of the political branches, to have their own building. It is almost like a constitutional change.
Will: There are a lot of very consequential changes in the institution that are not governed by law, are not governed by constitutional law.
Dan: Not covered by your conception of constitutional law.
Will: Now, we could ask whether Congress could regulate the color of their robes, or does the court as a whole decide that? Those are interesting questions. It's not obvious to me what the answer is.
Dan: Could it put them back in the Senate basement.
Will: Yeah. And certainly, Congress could strip the funding for the new building. I don't know if they could specifically make them go to the basement. The Justices want to meet somewhere else, I guess they could.
Dan: I think they probably could. I mean they--
Will: I think--That is right. They probably have to provide them somewhere to meet. Like, I'm not sure they could-- maybe they could just-- I mean, they used to cancel--
Dan: Do you think just like federal judges can just hold trials at their house if they want to, despite--?
Will: No, I was going to say if Congress refused to allow the Supreme Court to meet at all for a long period of time, that violates some constitutional rule. I mean, they used to cancel [unintelligible [00:29:50] events.
Dan: I think they did that in 1901, right?
Will: Yeah, but that was just for a year.
Dan: Didn't it prevent them from meeting for nearly two years? They canceled [unintelligible [00:29:59] term and then--
Will: Drags over in the circuit writing. Yeah, and maybe that's fine. Anyway, this opinion by Chief Justice Roberts, joined by five other Justices who are Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.
Dan: Who arepainted as Trump in the New Yorker cover there. Not necessarily because of this case in particular, although not this case.
Will: Well, this case is going to hurt the Trump administration, I think. So we should be--
Dan: If there is another Trump administration.
Will: When there is. It says, “Look, courts normally are the ones who try to figure out the law is, that's Marbury v. Madison, and these cases are governed by the Administrative Procedure Act, a statute, which also says, ‘Courts are supposed to decide all questions of law.’ So, if you think about it, sure seems like we should be the ones deciding all questions of law. And this Chevron case sure seems wrong. And indeed, the Chevron didn't even really grapple with the text of the Administrative Procedure Act. So, it's wrong. And then as a matter of stare decisis doesn't really work that well anymore. We've already been ignoring it for almost a decade, and so it's time for it to go.”
Dan: Yeah. And there's this interesting historical debate that the majority in the dissent are going to get into about was Chevron this break from what had been happening? How consistent was it with what had been happening? What did people who understood what was going on in administrative law at the time of the APA's enactment, how did they think this stuff would work?
Will: Yeah. There's great literature on all these questions about both. What was the norm before the APA was enacted? Was the APA understood to reinforce that norm or to change it? Because you could find scholars who think the norm was deference before the APA, but the APA was supposed to change it, and that's why it said de novo. You can find people who think, “No, the norm was no deference, but the APA was supposed to impose deference.” You could find all--
Dan: It doesn't say the word “de novo” in that part of the statute, though.
Will: No, it just says the reviewing court should decide all questions of law. It could mean you decide them in the traditional way. So, it could be it's supposed to reinforce whatever the preexisting standard was or it could be that single in that out to say, “you should be doing it de novo.” And then in any event, this period, these cases that do seem to apply some deference in some cases, and the opinions fight about are there a lot of those cases or not a lot of those cases? And do those cases really amount to a doctrine or just individual instances. Hanging in the background is this deference, Skidmore deference? You know this one?
Dan: Yeah. I could never really understand what it meant when I was in law school. It's like, when do you get it? When do you not get it?
Will: Well, Skidmore deference kicks in when Chevron deference doesn't apply even in the pre-Chevron world. But what it is, it's like you consider the agency's views and everything that they have to tell you, and then you see if you're persuaded.
Dan: What way is it like deference?
Will: Well, one classic view would be it's not deference.
Dan: Just like, tell me and if it sounds like a good idea, I'll do it.
Will: Right. I mean, it is funny you might think of it as deference, not in the legal sense. Sometimes you have deference, meaning there's somebody who you regularly go to for advice and listen to and think they are often wise, but still, you make up your own mind, but they occupy a special place in terms of you’re very respectful of their views. So, maybe that’s they have in mind. Maybe it’s just a fancy way of saying, “We’re not deferring,” but that’s still around, whatever it is.
The court also differentiates between two different ways in a way that agencies get deference. So, one, which is an addition in Chevron, is where the statute is just like ambiguous. It uses a word like source or drug or telecommunications facility. There's a question of what it means. And Chevron used to say, “We'll defer to the agency what it means, now we don't.” But there are still the court emphasizes lots of statutes where the best reading of the statute, like the de novo reading of the statute is, the statute gives the agency a lot of power. Either it just explicitly delegates the agency decision making authority or apparently, says the court, it uses really broad terms like necessary or appropriate that are supposed to be understood as code for the agency can figure it out.
So, the agency, I think still gets, stays where it is on those. If there's a statute saying the EPA can make whatever rules it thinks are necessary and appropriate to fight climate change, there’s not a statute that says that. But if there was, the EPA would get a lot of deference. It’s just the EPA doesn’t get deference when the question is carbon dioxide a pollutant within the meaning of the Clean Air Act?
Dan: Yeah. We don’t have a clear answer as to how big that category is though, right?
Will: No. I was online with Nick Bagley and we just started flipping through the Federal Register for the last, just like a random slice of administrative actions for the day and try to get a sense. And a lot of them were not ones that would be affected by Chevron. A lot of them were ones that were using the other kinds of administrative authority.
Dan: So, you were looking at what the agency did and then looking back at the underlying statutory authority.
Will: Yeah. What was the legal basis for their action? But I don't know-- at all a sense in terms of the most important regulations, the ones that are litigated or how that would work. My hypothesis is it probably also differs agency by agency. My hypothesis is that they're going to be agencies like immigration that I think don't have a ton of delegated authority and have been getting Chevron deference about how to interpret the code. That might well lose a lot more under this ruling and that other agencies and maybe the EPA is one of them, I don't know, are not really going to be as affected.
Dan: Yeah. Although let's say in Chevron itself, the term was, what, stationary source?
Will: Yeah, that's an EPA case. That's true.
Dan: Yeah. That's presumably when we're under the new approach, the court would just have to pull out the dictionary and figure that meaning out, right?
Will: Yes. And I think a lot of people might say the agency’s interpretation was just substantively the best one in that case, making it not the best vehicle. But I don't have a strong view.
Dan: What did you think of Chief Justice Roberts’s opinion here? I thought it was reasonably well written. There was not a lot that really, really stuck out at me. I did really want to know a little bit more about what difference is this going to make in practice. Obviously some, obviously some and some significant amount. But you could imagine this going in different ways. So, one is, courts first look at agency statutes and find there's a lot of places where the correct legal meaning is deference of some kind, or correct legal meaning is delegation. Plus, then leaning reasonably strongly on Skidmore in cases that involve super technical stuff, and then we land in some place that looks something like the prior regime.
Will: Yeah.
Dan: But the other is a world where courts are now going to be really, really aggressively policing everything that agencies do and this is something that my colleague Ron Levin has a column in CNN said that basically the case may in some way matter more thematically to the extent that it is signaling to lower court judges that you should do option two a little bit more than option one.
Will: Yeah.
Dan: Does that seem right?
Will: Basically, yes. I mean, I do think this definitely falls into the category of cases that lots of people have confident predictions about the consequences of this case that seems to me just hard to prove either way. And partly exactly as you say, we'll just have to see. I also wouldn't be surprised if it affects different circuits differently. Like, I think the baseline levels of deference were different in different circuits already, and there may be some circuits that are more inclined to stay their hands in a lot of these cases and some circuits that are more excited to really get their de novo review on.
Dan: This is interesting. There's certain legal administrative law issues that I think DC Circuit has exclusive jurisdiction over, some that they don't, that can pop up in any of the numbered circuits. And as of right now, the DC circuit is a heavy democratic appointed judge heavy court. There's seven-- it's seven to four, I think, Democrats v. Republicans. And so, to the extent that they're going to be the front lines of some significant percentage of these cases, they may continue doing in a lot of cases what they would have done otherwise. And then the court will presumably grant some of those cases.
And if it doesn't like the amount of Skidmore deference or doesn't buy that the DC circuit is really doing its Marbury v. Madison style job and interpreting the statute can correct it, but it won't be able to do that in every case.
Will: Right. Exactly. I think there was a time when the conventional wisdom was the DC circuit was the best place to go to challenge an agency rule. If you were litigating for private industry, even a lot of cases where you had a choice where to file. There was a conventional wisdom for a while I think that--
Dan: Is that appeared when the DC circuit was more conservative?
Will: I'm not sure how much it was politics and how much it was about just a sense of most other circuits would have this reflexive deference. They didn't want to know about the milk regulation. So, if you came in and said, “We're suing the federal government because we have this complicated technical argument.” A lot of circuits are just like, “Oh, I don't know,” [laughs] whereas the DC circuit was just more comfortable with it and therefore more willing to overturn it. My sense is that's reversed in some ways, that now the Fifth Circuit, the Sixth Circuit are exciting places to be to challenge agency regs, not even necessarily depending the administration. And the DC Circuit is in some ways more likely to give the government a more sympathetic ear, but it definitely is a political aspect-- [crosstalk]
Dan: I don't know how these agency statutes work and the kinds of challenges that can arise quite well enough to say this confidently, but I would imagine there are some regulatory type questions that can only come to the DC circuit, like there aren't other. DC circuit has exclusive statutory jurisdiction over certain kind of challenges, and then those legal issues don't arise in other contexts where somebody has standing to challenge them.
Will: But then there are also some, we've seen these recently that for which there's this multi circuit lottery, when you're litigating a stay of an agency decision, there's this whole complicated procedure where you can bring them in lots of different circuits, but then after 12 days, they collect all the challenges that have been filed and like draw a lottery, that's how the Sixth circuit ended up with the OSHA case.
Dan: Oh, yeah.
Will: And then it's like, the people who want to defend the rule come up with some BS reason to challenge the rule as not going far enough so they can have an excuse to file in the good circuits. So, I think there's a lot of different interesting play about venue and all those things, and that's also relevant to how this will all shake out. I really like the opinion in general. I thought, this is this one, unlike the one we talked about last episode, really leaned to the Chief's strengths in commonsensical defenses of judicial supremacy. But there were two parts that stuck out at me. So, two joint paragraphs, both on page 23. So one is where the court just confronts this idea of like the best reading of the statute.
And the court says, “It makes no sense to speak of a ‘permissible interpretation.’ That is not the one the court, after applying all relevant tools, concludes is best. In the business of statutory interpretation, if it is not the best, it is not permissible.” And that's the court is really striking at the heart of the conceptual idea of Chevron, where Chevron would say, “Sometimes even after you've been a textualist, there are multiple principled interpretations and at that point, who are we to say that the agency is wrong?” And here the court is now saying, “There's always the best answer, there's always something we would have done if the agency had not spoken, and that something is always the right answer.”
I agree with that but there was a time when that was considered a weird view that only Ronald Dworkin had, and that you had to be a non-realist, non-formalist to believe that you could always get a best meaning out of the statute. So, it's interesting to see that now be the law of the land.
Dan: Yeah. I mean, do you really believe that, though, that there's always a right answer? You don't think that there can just be cases of inherent ambiguity?
Will: I do believe there's ambiguity. No, maybe always is too strong-- [crosstalk]
Dan: Do you think it's always 51-49 in one direction when there's two competing interpretations?
Will: Almost always. I guess I could say in principle it could be 50-50, but then I want to know, is it 50.0 to 50.0 or is it [chuckles] 50.1 to 49.9?
Dan: It could be well within [chuckles] the margin of error of the fallibility of human decision making.
Will: Sure. Margin of error is a more interesting way to think about it, is that there could be a best answer and there could also be a margin of error.
Dan: Yeah, maybe there is a platonic best answer, but there's limited ability to actually get that answer.
Will: And then maybe that's the way, it's like, I would say, even when there's a high margin of error, there is still one of the two that you think is a slightly better guess. Like if there was no agency, that’s the one you think is slightly better. But it could make sense to have a rule that says sometimes the two are sufficiently close that something else, the margin of error, should apply. So, I guess I agree with the conceptual idea that you could always have a legal answer, that the law could have no gaps, but I don’t know that it follows from that you can’t have Chevron. And then the even more judicial supremacy passage comes right after that: Perhaps most fundamentally, Chevron's presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.
Dan: Yeah, that doesn't seem right.
Will: Agencies have lawyers too.
Dan: Yeah.
Will: The court's “special competence” comes from the fact that they're lawyers and they have been given a lot of power. So, we follow their rulings even if they're wrong. The power doesn't make them competent. They're infallible because they're final. They're not final because they're infallible. So, the thing that makes them competent is their lawyers who do this a lot. Yeah, the agencies have people like that too.
Dan: They have done that a lot for a while.
Will: No, we could talk about in any given case, it may or may not be the lawyers who are calling the shots. So, the agency might say, “This is our ‘interpretation,’ but maybe it's not the lawyers who believe in it, maybe it's the president who pushed them into it,” or something. That's the McConnell realist critique of Chevron is at some point this stopped really being about legal interpretation. But I thought the idea that the court would just say agencies have no special competence in resolving statutory ambiguities, courts do.
Dan: Yeah.
Will: I don't think that's true, and I think it's funny for the court to say it.
Dan: Yeah. We can come back to Justice Gorsuch's opinion in a second, but this does seem like a good point just to throw in some stuff from Justice Kagan's dissent, which is she on pages five to six of her dissent, she just points to a lot of these statutory phrases that I think don't fit into the implicit delegation category, appropriate, reasonable, etc. that presumably under the new regime, courts are going to just have to answer for themselves. So, under the Public Health Service Act, the FDA regulates biological products, including proteins. When does an alpha amino acid polymer qualify as such a protein? Under the Endangered Species Act, Fish and Wildlife Service must designate endangered vertebrate fish or wildlife species, including distinct population segments. What makes a population segment distinct? And so on.
One that I thought was particularly interesting. I'm curious what your intuition is about this one. She says, “Congress directed the Department of the Interior and the FAA to reduce noise from aircraft flying over Grand Canyon National Park specifically to provide for substantial restoration of the natural quiet. How much noise is consistent with the natural quiet, and how much of the park for how many hours a day, must be that quiet for the substantial restoration requirement to be met?”
I mean, those do seem like those are going to be pretty hard challenges for courts and not impossible, but they also do seem to be one where if you were asking who has competence contrary to what the Chief Justice just said between Justice Gorsuch or whoever and somebody at the FDA, in terms of defining what's a protein, I would go with the FDA person.
Will: [sighs] Yeah, maybe. Can I have neither? [chuckles]
Dan: So, who? It's neither-- You get to pick? I mean--
Will: Well, if I could have an agency that did not think it had Chevron deference and tell them to decide, I'd probably give them a lot of deference.
Dan: So, you want what we call acoustic separation?
Will: That's good, right?
Dan: This is the problem where we have the conduct rules and decision rules, and once people know about the decision rules, it interferes with how we regulate their conduct.
Will: Right. So, I teach this actually in my fall 1L class, usually through the example of jury nullification, that our system gives juries the power to nullify, but does not give the parties the power to tell the jury they have the power to nullify. [laughs] That's what the idea is. We want jurors that can nullify, but they don't know they can. Some cases that might give us roughly the right rule, that might give us roughly the right amount of jury nullification in a way that either of the more principled or stable equilibria won't work.
Dan: I have jury duty coming up.
Will: Oh, wow, I'm jealous.
Dan: So, if we can't record again in August, it will because I've been stuck on some jury. I think I won't get on because I've written stuff about jury nullification, [Will laughs] although I guess I could get put in a civil jury, in which case I'm in trouble.
Will: Well, you might believe in civil-- do you believe in civil jury nullification?
Dan: I've never thought about it. It's in late August though, and I was hoping that's a period of time when they're not actually going to be having a lot of trials because the judges are on vacation and so forth.
Will: I see. Okay. Orin Kerr was on a jury recently-- [crosstalk]
Dan: [laughs] In Berkeley?
Will: I think so.
Dan: Yeah.
Will: So, one alternative, which comes from one of the articles criticizing Chevron by Aditya Bamzai, The Yale Law Journal. What Aditya says is that in the pre-Chevron era, it's not that it was all de novo, but there was a principle of deferring to customary and contemporaneous interpretations. So, if, right when the statute was enacted, the agency had some interpretation that would get a thumb on the scale. And if over time there’d been a common law of the statute that there was a customary understanding across multiple administrations about what that meant, that would get some deference. And that certainly is my reaction to all these.
If you tell me that everybody in the Department of the Interior for 30 years has interpreted the substantial restoration of the natural quiet to mean whatever, an hour before sunrise and an hour after sunset, I'd say, “All right, it sounds fine.” If you tell me that the agencies keep flip flopping back and forth on it by a 12-hour span, then the idea that we should keep deferring to them every time it flipflops does seem--
Dan: Does it, though? But is there really-- I mean, phrases that vague, I don't see how you could look at that and do legal interpretation and say, “The answer is 06:30 AM to 06:30 PM.” That's not possible. That would just be arbitrary.
Will: I think protein might be different from substantial.
Dan: Yeah.
Will: I don't know the right answer to the protein question, but I don't think it's weird to think it has the best answer. I do think that the phrases like substantial restoration of natural quiet might actually be closer to the statute. The idea is the statute just doesn't have a sufficiently definite-- [crosstalk]
Dan: I mean, that seems that it has to be right to me. I can't imagine a world where the agency says “12 hours a day” and the court says, “You know what? It's actually 11 hours and 42 minutes,” if you really read the words a little bit more carefully. A phrase that vague, especially where there's no obvious body of meaning, it has to be a more-broad standard.
Will: I agree with that. But I think there are times there is a legal test that's like, was there substantial prejudice or something? And the courts just apply it and they just ask like, “All right, there was some effect on the proceedings, but was it substantial?” And they just--[crosstalk]
Dan: But they do that in case-by-case decision making. In a situation where the agency has been told you have to make a rule, that doesn't really work. In the case you're talking about someone, they look at the facts and say, “On these specific facts, we think it's over the line.” Because often it can be easy to say something is over the line or under the line. If the agency says there will be no regulations providing for quiet, you could just say--
Will: Well, so they wouldn't have to-- but here they'd say-- so suppose the agency says it's 12 hours a day of quiet, they don't have to say the right amount is 11 and a half or 12 and a half. But it might be they could just look at, I don't know, they go to the Grand Canyon and listen, I'm not even sure how this works, and say, “This is not good enough. We've heard from a bunch of experts that it's actually really important--” [crosstalk]
Dan: But another way of saying that is that you're looking at it and saying that whatever zone of reasonable, zone of discretion, this fails at Chevron Step One. Right?
Will: Sure. Yes.
Dan: This is not a reasonable permissible interpretation of this, because if you're supposed to do something, and if you're saying that people can blast whatever music they want and fly over helicopters at all hours of the night and do all sorts of other things, that doesn't possibly qualify. But if we're in a true, courts have to figure this out de novo world, the court presumably would, we do have to accept the notion that the court can read the statute and give you an answer, or that it has to be, the court reads it and determines that the answer is delegation. Those are the two options. And so, I agree with you that in some individual cases, they could just say, “Wherever the line is, this is on the wrong side.” But that's specific to that one case. If they have a case where it's 12 hours and that seems pretty close, that seems like it's probably counts the courts to resolve the legal question, the court would have to give us a more precise answer or say, “We think this is a delegation.”
Will: I'm not sure. It might still be able to just muddle through the case-by-case thing over and over again.
Dan: The next agency would do 12 hours 15 minutes and then eventually you'd have to reach the--
Will: Yeah, but the court might even know when they set out, like what the number is. They might just-- it's more like the court would say, “All right, is this substantially quiet? That sounds quiet. Sounds quiet. Oh, no, that's too loud.”
Dan: But, I mean, you're still. If you're accepting the idea that there is some number that--
Will: Yes, it's a line drawing problem.
Dan: It’s 12 hours 17 minutes.
Will: At some point, but it's more like, if there's some number where if the agency proposed one rule one side of the line and the other rule on the other side of the line, that would be the number that made the difference. But the court might not even know what that number is until it's confronted by those two examples.
Dan: Okay, but if it is a case that seems within pretty reasonable zone, the court is going to have to answer the question.
Will: Sure. Do you know the paradox of the heap?
Dan: Yeah.
Will: Yeah. So, you know, you take a grain of sand. It's not a heap of sand. You take two handfuls of sand, it's a heap of sand, and there is some number of grains from which it went from being not a heap to a heap. And, I guess in principle, if you're confronted with enough different things.
Dan: [chuckles] But the question in these cases is, who is allowed to write the rule that says when it becomes a heap or doesn't heap from heap? That's the thing, is, we're writing rules. Agencies are writing rules. And so, the agency wants to say it's a heap after 1.8 billion grains. The court has to say, “No, it's 1.7 billion.”
Will: Well, they don't have to say the second part, because that's my point. The agency is writing rules about when the aircraft can fly over the Grand Canyon and how loud that can be. And then the question is, did that result in a heap or not? And so, the court just has to look at the pile. The agency writes a bunch of rules about sand, and then the court looks at the pile of sand and asks whether it's a heap or not.
Dan: Right. But, I mean, I guess you were presupposing that there is locked in those words, the one right answer. And what I'm saying is, if I just say, do something that substantially accomplish this goal, and then you do it, and then you come back to me and I say, actually, I meant this exact thing. I don't think that would be fair. I would think it would be like, “Look, you told me to do a good job of this, and I took that to mean, use my judgment.”
Will: I think you're saying, and I think I have the same intuition, that in a lot of cases, we are going to read this as having a zone of implicit discretion.
Dan: Yeah,
Will: But saying substantial means there's some error term here.
Dan: Yeah.
Will: I think that's right. Yeah. Even the examples are nice because I'm not sure how they're all going to-- they might play out in different ways. It might be that the substantial is going to be more of an implicit delegation than protein.
Dan: Or than the natural quiet, right?
Will: Yeah.
Dan: Maybe the natural quiet has a meaning, but substantial is a delegation. So natural quiet means the sound levels that would persist in absent aerial overflights within some reasonable decibel range. But substantial means got to do something.
Will: I agree. This is a very good Kagan dissent.
Dan: Do you teach the elements of law class?
Will: I do.
Dan: Which is like legal reasoning basic-- you going to use some of this next time?
Will: I was thinking about it. This case is also interesting. So, one of the main things we teach in elements is precedent and stare decisis. And the case is also interesting as a precedent and stare decisis case, both at the level of, here is the court overruling another major decision after 40 years and some of the discussion about why they can do that and what factors they consider. And then there's also the second stare decisis question, which is what happens to all of the regulations we've upheld until now.
Dan: Yeah.
Will: If you work for a law firm in DC, do you just get to whip out this opinion and go hunting through the code for search the US reports for Chevron? In any case that cites Chevron is now right to be overruled.
Dan: And for your purposes, it also has this whole interesting other thing about institutional allocations of power and deference in decision makers. Yeah, that’s--
Will: Almost has too much in it to be a good 1L case, but--
Dan: Yeah. I think the setup takes a whole day or two before you can even get to what happened. There's a lot of moving pieces here for 1Ls. But, on the stare decisis front, yeah. So, the second thing, what are the consequences for other cases? Let's talk about in a second. But on stare decisis for this case, we have a fairly long statement from Justice Gorsuch about stare decisis, who has obviously written cases opinions that implicate stare decisis. He's certainly willing to overrule precedent. I think this is his lengthiest statement about that. We've seen stuff like this from Justice Kavanaugh.
Will: And Justice Thomas.
Dan: Well, certainly Justice Thomas, but Justice Kavanaugh, was it in Ramos v. Louisiana where he has the longer theory of stare decisis?
Will: Yes.
Dan: And so here we have Justice Gorsuch's. And I'd say it's fairly robust defense of overturning precedent. He's not saying it doesn't exist, that you shouldn't ever follow precedent. But I think he seems to think that courts should maybe be more willing to overrule precedent than they often are.
Will: Yeah, I agree. In technical lingo, we sometimes draw a distinction between precedent and stare decisis. Precedent is any use of past decisions as authority, which he's not at all against. But stare decisis is the idea that we've already-- This has been asked and answered, we've ruled on this once before, and therefore, we're never going to rule on it differently in the future. And he's definitely against stare decisis, even if he's okay with some uses of precedent.
Dan: And he draws on a long history there. He draws on some speeches by President, then candidate Lincoln right, in the Lincoln-Douglas debates, which are some of the same things that are in your casebook that I had my students read in our class about judicial supremacy, where basically Lincoln says, “Look, when the Supreme Court decides a case like Dred Scott, look, it decides whether or not Scott gets to be free.” And we're stuck with that. But it doesn't settle the question for the country for all time. We can still push back on that. And I guess I do find that compelling. I don't know whether that translates for me into Supreme Court Justices should be overturning precedent all the time.
Will: Lincoln also says, “It might be different if it were a unanimous decision that had been reached and reaffirmed multiple times and there were no suspicion of politics--” [crosstalk]
Dan: This is like the Arlen Specter super-duper precedent, right?
Will: Yeah. Well, I mean, yes. It's also somewhat like the factors that went into what James Madison called liquidation. Now, what's interesting is Chevron might qualify for that. A unanimous decision that's been reaffirmed repeatedly.
Dan: Ah, but it's unanimous because there was only six Justices participating in the case, right? Well, both opinions in this case tell us there was a bare quorum.
Will: Yeah. I don't remember. Somebody wrote this up, but it's like one of those classic public choice games to play. It's like, I've heard the argument that the Supreme Court ought to have a voting rule where you need more Justices to overturn a precedent than there were in the original precedent. So, it's like a 5-4, you can overturn it by a 6-3 vote. And if date one, you can overturn it unanimously. And unanimous decisions can never be overturned unless you pack the court.
Dan: And if you apply that to legislation, I mean, unanimous legislation could never be overruled.
Will: Sure. Well, you need a different translation rule because the representatives outnumber you.
Dan: No, no. I mean, I am saying you could have imagined the same rule for a legislature that--
Will: Yes.
Dan: Anything that passes the legislature by a bare majority can be overruled, but super majority can entrench.
Will: You can make an exception for unanimity. Another way to do it is just say an unanimous body can always do whatever once you get below it. So, Plessy 8-1, and Brown is unanimous. So, it's okay that Brown overrules Plessy, but McConnell v. FEC is 6-3 and Citizens United is only 5-4. So, Citizens United shouldn't have overturned McConnell. I think it's a silly theory, but it's actually fun play with--
Dan: I think it's a fun idea and also a stupid idea, stupid proposal, if it's an actual proposal.
Will: The thing that's not stupid about it is to try to suggest, like, all Justices should sort of be presumptively equally rational. So, the fact that five Justices today think something is a good idea shouldn't necessarily outweigh the 27 judges in the past who thought it was a, the opposite. So it’s an attempt to grapple with that? I just don't think he does it in the right way.
Dan: Yeah. It reminds me of a case I used to teach when I was still teaching 1L crim, Marrero, which is this mistake of law case not a Supreme Court decision. It's from the New York courts. But basically, there's a statute. And I'd say it's fairly ambiguous as to whether federal correctional officers are allowed to possess firearms under then existing strict firearms laws in the state of New York. And this guy Marrero is a federal prison guard, and he's got a gun, and he's caught, and he's prosecuted for having it unlicensed in violation of the law. And he says, “Here, there's this statute that says this won't apply to guards of any correctional institution.”
And he says, “I read the statute, and I got advice from a lawyer, or I got advice from somebody who told me that I'm covered, and I believe that.” And so they indict him, the trial court dismisses and is like, “Yeah, you're right,” actually. [chuckles] And then it goes up to the intermediate court, which reinstates the indictment 3 to 2, [laughs] and then he gets convicted, and he wants to make this mistake of law defense. And the court says, “No, that doesn't count. You can't make that defense.” Even though the statute was so ambiguous that 50% of the judges to ever interpret it, concluded that he should win.
Will: Yeah.
Dan: And this one, I love it because it drives the students crazy. It seems so unjust.
Will: Yeah. Do you think it's right?
Dan: Yeah, I do, actually.
Will: Okay.
Dan: Which is, I think that basically, the way, the idea behind it is the statute has answer. And it means what it says. And the fact that, some judges disagree doesn't mean what it says. And so, the way to respond to that is not to say that as long as it's in the ballpark, you don't have to follow the criminal statute. But instead, if it's unclear, stay away from the line. That's sort of--
Will: And is there no rule of lenity? Is that because you might think the fact that it doesn't disagree doesn't mean it doesn't mean what it says, but it does mean it doesn't clearly mean what it says.
Dan: Yeah. I mean, so in the context of the case, they're just resolving the mistake of law defense question, not the rule of lenity statutory interpretation question. So, you can just take for granted that the court did all its interpretive stuff and sort of said, “No, you lose.” And again, related point, we don't ever say, “Gosh, there's four Justices dissenting. The statute means something else, that means it must be ambiguous.” You say, “The five Justices of the majority, we're clearly right, they're clearly wrong. We take nothing from the fact that they disagree and that there's four of them.”
Will: I wrote an article about this, actually.
Dan: Yeah. This is the arguing with friends thing, right?
Will: Yeah. Because Posner and Vermeule had argued, said, “No, it's 5-4.” It's ambiguous. Obviously it's ambiguous in the real sense.
Dan: Yeah. I've already made fun of you for this article on the show. You've already forgotten.
Will: You did?
Dan: Yeah. I think I was like, “Oh, that's the article where you say judges should only listen to regionalists.”
Will: Yeah. The article did get us in a lot of trouble because people assumed that we were both right wingers were trying to say that trying to justify the epistemic closure of the conservative legal movement.
Dan: Yeah. They didn't know that you were a political hack trying to take down Trump.
Will: Well, they didn't know that Ryan Doerfler, my coauthor is actually a far-left anti-constitutionalist.
Dan: He's not a lib, he's a leftist.
Will: [laughs]But we did get called Nazis for that though so.
Dan: In those literal words?
Will: Mark Tushnet wrote a blind item on the Balkinization blog. [crosstalk]
Dan: Oh, I saw that. Yeah. That was--[crosstalk]
Will: About this terrible article that was following the tradition of Carl Schmitt. That was about our article, but didn't actually name our article, but you could tell--[crosstalk]
Dan: Yeah, no, I remember that. I thought that was mean. I do like Mark Tushnet because he's incredibly smart, imagine you and he disagree about many, many things, but--
Will: Including, apparently arguing with friends.
Dan: I do think that was a little mean.
Will: It was mean. It's okay. I'm in Chicago, we're used to it.
Dan: Yeah. You know, you podcast with me, so you're used to it.
Will: That's true. You're very mean to me, Dan.
Dan: Well, you know, I just-- I feel like you get so much positive reinforcement from the world, Will. The shadow docket, everyone's, like, using your phrase, and I just think you need to get cut down to size a little bit more.
Will: That's why I keep coming back for more.
Dan: You're glutton for punishment. Okay, so what do you have to say about Justice Gorsuch? Saying Justice Gorsuch is hard?
Will: I thought Justice Gorsuch's general ruminations on precedent were quite insightful, quite scholarly. I generally agree with them. I don't know if this was the case where they had to be ventilated, but that's fine. And, of course, his ruminations of Chevron are all things that we knew before.
Dan: Yeah. It's interesting because this is ultimately a statutory case, which is a context where stare decisis arguably is different than in the constitutional cases.
Will: The majority definitely treats it as a statutory case. There is floating around this Article III argument against Chevron that even if Congress were to amend the APA and to say courts should defer to the legal interpretations of agency officials, that it's effectively taking the judicial power from the courts and giving it to the executive branch.
Dan: That seems wrong to me. I could see more of an Article I on delegation.
Will: Yeah, well, they go together. I don't think it's silly. I don't think it's right because I do think ultimately Congress controls what substantive law is.
Dan: Yeah, right. I mean, because it isn't Congress in that point just saying the substantive law is agency has discretion. And Congress can certainly give, at least within whatever boundaries the nondelegation sets can give agencies discretion to do stuff.
Will: But maybe these do work together. So, Congress can give the agency discretion. It has to impose an intelligible principle and impose some limits on discretion. And then when it comes to the question of what are the limits on the discretion, Congress can't say, “Well, the agency has the discretion to decide what the limits are on the discretion,” which is where the Chevron would-- if Congress adopts a broad word says, “The agency can do anything reasonable,” and that's the limit on the discretion. It has to be reasonable. And then you say, “Well, what's reasonable?” And they say, “Oh, actually the agency decides that too.” That's sort of the--
Dan: Chevron squared though, right?
Will: Well, that's Arlington v. FCC. And in a way that's every case because every case is the agency-- every Chevron case, the agency has discretion, but it has to do with the natural quiet. Well, what's the natural quiet? Oh, actually the agency gets decide that. So, it's a rabbit duck problem or whatever is that the right--?
Dan: So, the blue and black, white and gold dress probably.
Will: Dress, yeah.
Dan: Which color did you see it as?
Will: It depends on my mood. Usually, I see it as blue and black, but I can see white and gold if I try.
Dan: I think I can't remember which one I saw it, the true way.
Will: Everybody does.
Dan: No, but I mean, there is actually a real color for the dress. If you see the dress in person, like it's not ambiguous.
Will: Okay.
Dan: Yeah, I think it's blue and black.
Will: Right.
Dan: That was the correct one. I think that's the one I see.
Will: Okay. I think it's a little tricky, but I think the naive view of the Article III critique is wrong, the naive view of the Article III argument is wrong, but there's a more complicated version that, it's not silly, but it's complicated. I think this certainly was one of the most controversial decisions. It's seen as part of the court's war on the administrative state. But it's not clear what it means, right?
Dan: I mean, it's partly what it means, but I guess it's not clear. Is this the end of the administrative state or is this a bit more of a check that courts are going to provide?
Will: And they may or may not provide the check, and it will depend on the court, it will depend on the agency. That said, I was surprised they did it, ultimately. They've had so many opportunities to overturn Chevron, and they spent so long ignoring Chevron. If you asked me, I think at least before the argument, I sort of thought like, “Oh, they're not going to overrule Chevron. They're going to just emphasize Chevron footnote 9.” I think apparently the phrase was Kisorize it.
Dan: Oh, really? I sort of thought by the time, once you have the multiple cases with squarely setting it up, they've decided it's time.
Will: I guess there were two QPs though. The first it was like, QP1, should Chevron be overruled, or QP2, should you at least say that the statute is totally silent on this—whatever, there's some QP2 that seemed sufficiently strong that I was like, “Oh, it's just going to be too easy for them in the end to say the agency's wrong. So, I'm impressed that they finally went for it.
Dan: You're happy? [crosstalk] You're anti-Chevron knight?
Will: I was persuaded by Aditya Bamzai that Chevron was not legally correct, although I was also persuaded by him that there were alternatives to de novo review that would be good and I'm not sure exactly where we landed.
Dan: Yeah. And so, under that approach, there would be less deference if the agencies are flip flopping politically but more if they're just interpreting it the first time and sticking with it.
Will: Right. Especially both. Like, if it was like the statute was enacted and from then until now, everybody's thought it meant x, I would still give that a lot of weight.
Dan: Yeah. Although if the statute is enacted today, oftentimes they get challenged right away, and so you don't necessarily have the time to develop that tradition.
Will: That's true. We don't enact statutes anymore, Dan.
Dan: We'll see once we make America great again.
Will: That's true.
Dan: Maybe that'll come back.
Will: That's true. All right, should we talk about the other case?
Dan: Okay. So, particularly as it maybe relates to Loper Bright, we do have another case that-- they really struggled with this one. This was a final day case, right?
Will: Yeah.
Dan: Corner Post v. Board of Governors of the Federal Reserve System, another 6-3. But this time with different Justices writing, taking the place of Chief Justice Roberts writing the majority. We have Justice Barrett, concurrence not from Justice Gorsuch, but from Justice Kavanaugh. And then the dissent is handled by Justice Jackson.
Will: Mm-hmm.
Dan: And so, I guess I don't have a huge amount to say about the talk about the consequences of the underlying legal issue, which is basically, when does the statute of limitations run for getting judicial review of a facial challenge of an agency rulemaking, right?
Will: Because the statute of limitations we agree is six years.
Dan: Six years. And it's the specific language says, “Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first occurs.” And the debate in the case is, does this mean that once the regulation is put into place, does that start a ticking six-year clock, and so seven years after the regulation, nobody can challenge it or does it start to run when you, the plaintiff, first, are injured and then have the right to sue? And the court says it's option number two, and the dissent says it's option number one.
Will: I think the dissent says somebody has to be injured by it, but not necessarily you.
Dan: Yeah. The right has to accrue somewhere, right?
Will: I think both. Just at the basic level of intuitions, I think both sides going for it. So, if you are a new company, you just started, and then you have a rag that's going to destroy your business, you want to challenge it, and you're told, “Oh, you can't challenge it. You're supposed to have challenged it 31 years ago when it was enacted.” You're like, “We didn't exist. We couldn't challenge it then.” We would never do that for natural people on statutes. Like Lawrence v. Texas, where somebody is prosecuted under an unconstitutional sodomy law, we wouldn't have said, “Well, actually, the right time to challenge the statute was the 19th century before you were born, and I'm sorry you weren't there, but it's too late.”
Dan: Although it's interesting, because even this is only about when you can go to court and make one of these challenges. If we have the person who didn't challenge the rule 30 years ago, but the agency brings an enforcement action against them, they can still defend against that enforcement action by saying the rule is illegal, right?
Will: Sure. Okay. So even a facial challenge, a flag burning ban, and you say, look, or whatever. On the other hand, it's easy to create these entities. So, if you have a bunch of industries that try to challenge the rule and they're told, it came too late, and they lose, 20 years later you just create a new incorporation and say, “poof.”
Dan: Yeah. And that's basically what happened here. Not exactly what happened here. But basically, there was an initial complaint filed and it was time barred, and then they went and found this other guy who had gone into business later and he could sue.
Will: And that also seems weird, [laughs] right? When you plaintiff shop for the new random plaintiff.
Dan: But again, and this is maybe getting ahead of ourselves because it's going to relate to Justice Kavanaugh's dissent. This only matters in this situation where you want to challenge the regulation and you're not going to be directly regulated.
Will: What matters in the cases where you want to bring some facial challenge against the regulation. And the main time you might want to do that is because you're not directly regulated, although there are plaintiffs who are directly regulated who want to do that anyway because the person paying their legal fees wants nationwide vacatur.
Dan: Yeah.
Will: And so, it's also, I think if you were a court of appeals and you just generally didn't like facial challenges to regulations, that those strike you as a big deal. I could see why you might say, “Eh, we're not going to make those easy.” And don't worry, you can always challenge your own conviction. So, it implicates these broader questions, as you're implying, about what kinds of administrative challenges we want and how we think the system should try to accommodate them.
Dan: I will say that I did actually find the basic statutory interpretation piece of this, the majority, a little bit more persuasive in that just relying, without having read some of the cases they're analogizing to. But just my basic baseline legal intuitions about terms. This right of action first accrues. I normally think of that as a statutory limitation, statute of limitations provision for particular people. Your right of action accrues when all the elements are satisfied.
Will: Right. Rather than like it accrued for somebody else. Yeah, I agree. I mean, then there are other statutory regimes. We have something more like a statute of repose or a quiet title where we want to say, “Look, this is the cut off, like, only sue then.” But the language doesn't seem like that. There was also in this case, an amicus brief, again from Aditya Bamzai, that took the side that Justice Barrett took. So, I knew very little about this case other than that he'd sent me a draft of the brief because he thought I'd be interested. And I read it and thought it was pretty persuasive. So, I've always thought, okay, that seemed right, I hadn't thought of it very carefully, and it still seems right.
I feel like this case was not really discussed very much while it was pending and then after it came out, especially in the last day and like the day after the Loper Bright and not that long after Jarkesy. Now, I see a lot more reporting on it as like this, “This case we weren't watching, that's another part of the war on the administrative state, and it's going to have these consequences that's going to make it easy for the courts to go back and strike down all these long-standing regulations.”
Dan: Yeah. And that's, I mean, part of that is the framing by the dissent. That’s in the post dinkus section of the dissent at the very end Justice Jackson says, “At the end of a momentous term, this much is clear, the tsunami of lawsuits against agencies that the court's holdings in this case in Loper Bright have authorized has the potential to devastate the functioning of the federal government.” So, painting them as part of this larger project. I mean, and it is at least potentially this one-two punch, which is presumably all these agency regulations that maybe were challenged at some point and upheld or never challenged and are now vulnerable in a post-Chevron world, they are on the table again, right?
Will: Yeah, I think so. I think Loper Bright said the ones that were challenged and were upheld have some statutory stare decisis behind them, but even that's not impenetrable, as we know.
Dan: Yeah.
Will: Yeah.
Dan: Okay. So, I think it just, whether it has that effect or not, just depends a lot more on how much of a signal lower courts take from this and which lower courts. I think that, my guess is the DC circuit is going to change what it does by 10%, but not going to radically do things. I think that Fifth Circuit may use this to do all sorts of stuff.
Will: Although, as with the Chevron case, one of the things that limits its applicability a little bit is that a lot of agencies have their own limitations periods and start running at the moment of final agency action. And Justice Jackson says there are more than two dozen examples in the government's brief. And as the government itself acknowledges, even that list is not comprehensive. And they quote the oral arguments statement here. Candidly, we got to a page long footnote and stopped, and then Justice Jackson comes up with more. So, there are a bunch of agencies for which this doesn't matter and exactly which agencies--[crosstalk]
Dan: By the way, there's like five examples between this case and Loper Bright where a Justice or quoting the SG, they say here's a long list and I could go on, I think Justice Kagan does it a couple times, Justice Kavanaugh does it a couple of times. It seems a little cliche at this point.
Will: Yeah. Well, this is what the CEG edition is for, right? You're supposed to hint. These are the examples I can come up with. But I promise there are more [unintelligible [01:16:34] [crosstalk]
Dan: Familiar with that trick.
Will: So, I don't know exactly which agencies are going to be hardest hit. And it's funny because the majority says, “Look, this is what it looks like if you want to write a limitations period the way the dissent wants to,” and the dissent says, “Look, the fact that all the other limitations periods are like this has evidence that this is the way Congress wants to do things.” And so, we should get the hint, like the mood from how Congress wants it to work.
Dan: Well, we will see. Justice Jackson invites congressional reform, which seems unlikely in our polarized and divided age, but we'll see.
Will: Yeah, I mean, there's been a conservative project to rewrite the APA for a long time. They're like AI books or whatever on, what is the new [unintelligible [01:17:19] to look like. So, this moment, maybe not. It's not impossible to imagine bipartisan APA reform that does a little bit of stuff that both sides like. And in the veil of ignorance, it's not obvious why even industry wouldn't like some stability if they could get it the right way. So, I doubt we're going to see. I mean, she said it's Ledbetter. I don't think the first act of the Trump administration or the second Biden administration is going to be a bill, just a Corner Post fix. The optics aren't the same.
Dan: Yeah.
Will: But I think I wouldn't be surprised if this were on the table in some APA reform that happens in our professional lifetimes.
Dan: Yeah, I will say it is interesting that coming out of this term, it now seems like the heat is back on the court again. A lot of the people on the left are back up to red hot about the court and think the court is out of control.
Will: Yeah. Yeah, I guess so.
Dan: Which is including Biden, I guess. I don't know why this term in particular was the one that put him over the top. I mean, is it because they can't prosecute Trump? I don't know.
Will: Yeah, it seems like it's, yeah, somehow, I mean, the administrative decision seems like the consequential package, and then the Trump one seems like it supplies the necessary emotional outrage and somehow, they multiply or something.
Dan: I'm short on time, so we should at least briefly talk about the Kavanaugh concurrence, which I thought was pretty interesting. And so, he is returning to a debate that has come up that's adjacent to the debate about nationwide injunctions that we've talked about. And we've also talked about this specific one, which is, do courts have the power to vacate rules or can they only provide relief to a particular party? And there's one view that Justice Kavanaugh is articulating, which is administrative rules are different that there is, even if you can't give it a nationwide injunction in the ordinary context, there is this power under the APA to set aside rules, just get rid of the whole rule, vacate the rules.
And he is a judge who had been on the DC circuit for a number of years and did that all the time. And he is defending that practice. It had been criticized by Justice Gorsuch and says, actually, this is necessary. And the argument he makes, which I found reasonably persuasive, is if you can't do that, I want to make sure that we think this is right. But he says, “If you can't do that, someone who is not directly regulated but still getting negatively affected by some government regulation would have no remedy.” There'd be nothing they could do to go say, “Hey, the government's doing illegal stuff.”
Will: Yeah. I mean, I think this is a little more complicated. And as I mentioned, even in this case, it's funny because the rule in this case is something-- if the rule here were vacated, I think Corner Post would be worse off--
Dan: At least immediately, because the rule sets price caps and Corner Post wants to say they're too high. But then if the rule goes away, then those caps go away, at least temporarily. But I think the effect of that would be presumably that the--
Will: I mean, the remedy they really want in a way, is like remand without vacatur, which we haven't even gotten into yet. But yes, I do think it's right that the problem, if it's a problem with the Bray-Harrison narrower view that set aside means set aside the particular agency enforcement action is that will make it much harder for unregulated parties to sue. Now what’s funny is that there are a bunch of Kavanaugh opinions, like the one about the FDA that say, “In general, it’s supposed to be a lot harder for unregulated parties [laughs] to sue.” “In general, regulated parties are supposed to be able to sue easily, and it’s pretty unusual for unregulated parties to have standing.” So, I think for some people, this is a feature rather than a bug.
And the place this dispute came up last was in Texas v. United States. This case about the Biden administration's immigration enforcement priorities. Justice Kavanaugh with the majority opinion saying there's no standing. Justice Gorsuch wrote the concurring opinion saying, “Also, I don't really believe in vacatur of rules,” and they're both on the same page, these challenges should be really hard to bring. And Justice Kavanaugh couldn't really respond at the time because he had the majority opinion, so he couldn't have fire back. So now he's sort of like, it's like a belated response, Justice Gorsuch’s concurrence in US v. Texas. But we might say to Justice Kavanaugh, we should think about, is it really such a good thing that these unregulated parties get to sue and demand that other parties get regulated more?
Dan: What do you think?
Will: I mean, I don't want to rule them all out, but I'm dubious that we need to be quite solicitous of the unregulated parties demanding that other people get regulated more. I mean, there are places where we care about unfair competition and stuff like that. And so, I don't want to say completely, but that doesn't strike me as, on its face, a big problem. Yeah, but that also means that in a way, Justice Kavanaugh was right to reveal that the war on APA vacatur is of a piece with a bunch of other things that they don't have to go together logically, but they fit together more logically. I also know that a lot of the people who are skeptical of APA vacatur are also skeptical of broad pre-enforcement review of regulations.
Dan: The APA vacatur thing, it seems to transcend political boundaries because right now, most recently, it has been advanced by the Biden administration and by some conservative legal scholars.
Will: Right. So, I don't mean not just the political camps, but like the conceptual camp about the role of the courts. If you have a more classical, frankly, anti-judicial, supremacist view about the role of the courts, a lot of things might go together. No nationwide injunctions, no vacatur, less pre-enforcement review, less suits by unregulated parties, just like more focus on people actually having their rights violated and making specific arguments, and less worry about the Supreme Court, like generally declaring the law. And, of course, if you're a Supreme Court justice, you might like the part where you get to do all that stuff. And Justice Kavanaugh definitely likes that part, so he's smart to see that the way these are all connected, it's a good opinion.
Dan: Yeah. It will be interesting to see if that debate continues in any administrative law cases in the next term or two. Okay, well, I'm short in time. What else you got?
Will: I was just saying, an article I wrote with Sam Bray on the other side of this, defending the Gorsuch position, is cited here, but cited for the one concessive thing we say that [Dan laughs] practically it may not really matter, but that's funny. All right, that's all I have.
Dan: Cool. Thanks very much for listening. Please rate and review, if you haven't already, on the Apple Podcast app or wherever you get your podcasts, and spread the show far and wide. We're always looking to increase our listenership, and we had pretty good engagement recently. The episode on the Trump Immunity Case did quite well with downloads, but I think there's still more people who would want to listen, so please spread the word.
Visit our website at dividedargument.com, where we have transcripts the episodes fairly soon after they are posted. Store.dividedargument.com for merchandise. Send us an email, which we do read and occasionally respond to pod@dividedargument.com and leave us a voicemail. 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. If there are opinions from the term that you really want us to go back and talk about that haven't covered yet, write in and I'll try to pressure Dan to talk about whatever the fan favorite is.
Dan: And if there's a long delay between this and our next episode, it will because J.D. Vance has chosen to intern Will in a camp for dissidents because he's a political hack pretending to be a lawyer.
Will: Hey.
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