Will and Dan ponder what this podcast is about, continue their discussion of good faith in judging, try to game out exactly what the Court is up to in Dobbs v. Jackson Women's Health, and respond to listener feedback.
Will and Dan ponder what this podcast is about, continue their discussion of good faith in judging, try to game out exactly what the Court is up to in Dobbs v. Jackson Women's Health, and respond to listener feedback.
Dan (00:17):
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will (00:25):
And I'm Will Baude. It's been quite a week, hasn't it?
Dan (00:28):
Yeah, we've really been cranking the episodes out despite the court only giving us a few opinions to work with. We've had a bunch of non-opinion related episodes. I think we're going to do another one right now just to continue filling the airwaves with content while we make for even more work product from the court.
Will (00:47):
Yeah. I was afraid somebody might have actually gotten caught up, so we need to try to stay ahead of our listeners.
Dan (00:51):
Yeah, it's kind of a shock and awe kind of approach for now before we run out of steam and need to take a little bit of a breather, as I'm sure we will. But this is the privilege of being an unscheduled podcast. You can do four or five episodes in a week, you can do no episodes in a week. Nobody gets to complain about it.
Will (01:09):
I think they will complain, Dan.
Dan (01:10):
Well, they can complain to someone else, not to me. I thought maybe it might be good for us just to take a little bit of a step back, and sort of try to figure out what we're doing here. Because we've gotten some questions about that. What's the idea behind the show? Because we didn't really do that at the outset. We kind of just started in medias res. Maybe we should talk about that. What are we thinking? What are we doing here, Will?
Will (01:32):
I've got to say I'm kind of curious to find out if we have the same idea, because it'd be a little late to discover that we're not on the same page.
Dan (01:40):
Yeah, I think that we kind of had this vague concept which is that you and I both, we like talking about the Supreme Court. We seem to enjoy talking to each other. I think I would describe us both as having... we each have very different views about a lot of things. But we probably each have also kind of idiosyncratic views that are not totally easy to map onto standard left, right legal discourse kind of categories.
Will (02:09):
Yeah. I think most people would say that you're more on the left than I am and I'm more on the right than you are.
Dan (02:14):
Yeah.
Will (02:14):
That's probably fair, but neither of us has ever been accused of being a super loyal team player to our respective ideological teams.
Dan (02:22):
Yeah. I mean, I'm willing to accuse you of that if that would break your unbeaten streak. But yeah, no, I think that's right. You are an originalist.
Will (02:32):
Yeah.
Dan (02:33):
Fair.
Will (02:34):
You're not, I don't think.
Dan (02:35):
I'm not. I can make those arguments and I can try to follow along, but I don't really... I guess I don't really kind of clearly identify as any one interpretive methodologist. I'm still figuring that out. Maybe you can convince me. I think one thing that I kind of struggle with in doing this kind of commentary about the court is, and this is something I really want to talk about more in this episode. Which is, you can stand inside the marble palace and really try to figure out what's going on. Take the doctrine on its own terms. Try to really understand what the justices are thinking. But then sometimes you do, and I certainly do, maybe I want to do this more than you do, step outside of the building. Sort of look across the street.
Dan (03:23):
Look at the Capitol and think about putting aside what we think about the doctrine, and how different justices thinking about the doctrine. I mean, there are profound political implications to what's going on here. To some degree, that's inescapable. I don't want to just say the justices are doing politics either, because that's not quite right. The story is I think a lot more complicated than that. That's something I want to explore today.
Will (03:50):
I agree with that. You're right that I probably tend to spend more of my time, more of my immediate framing, thinking about things from the internal point of view. What's the legal argument? What's the response to that? But look, I don't live in the building. I haven't been in the building in a very long time. I too am interested in how all of this actually works in the world.
Dan (04:11):
Yeah, but is it fair to say... I mean, you probably are at this moment in Supreme Court time, maybe slightly more comfortable working within the four corners of the doctrine because, I'm not saying you agree with everything the court is doing, but you find a certain amount of what it's doing amenable. At least from a methodology perspective, you like the originalist turn on the court, right?
Will (04:33):
I do like the originalist turn on the court, but I'm not sure whether that makes me more comfortable or less, to be honest.
Dan (04:38):
Say more about that.
Will (04:39):
I feel like now when the court does something originalist, my reputation is on the line. If the court does something originalist, people complain that it's not principled. More people come and complain to me. When Kennedy did something unprincipled, nobody ever blamed me. They blamed you. I think there's, well, this mantra I use a lot. Put not your faith in princes. The more you become tempted to really believe the justices, the more you're setting yourself up for disappointment. I try to remember that a lot.
Dan (05:09):
Yeah. This relates to something we talked about a couple episodes ago, where we were talking about good faith in judging. You said something I think was interesting, and I want to interrogate it a little bit more. You just said, "I think all the justices are proceeding in good faith."
Will (05:26):
Yeah.
Dan (05:27):
I'm not saying I disagree with that, but I guess I also am not saying I agree with it either. I want to know, where does that faith in good faith for you come from?
Will (05:38):
Well, I don't know that it's faith in good faith. I'd say I try to be realistic with these things. I'm not saying that every justice in the court in history has proceeded in good faith. We had plenty who didn’t. I just think we're at a relatively high watermark of it. How good good faith is, and how much that is going to insulate something they care about, we can still talk about. But I think-
Dan (06:00):
You're saying compared to other periods in history, there were judges who were maybe more openly partisan. Is that what you mean?
Will (06:06):
Yeah, or more covertly partisan. I think the real mark of bad faith, I think I tried this a couple episodes ago, is when you've got some secret partisan agenda that you're afraid to tell people about. A totally open partisan agenda is more complicated.
Dan (06:24):
Do you think justices back channeling to political actors, Abe Fortas hanging out at the White House and advising Johnson, all these other courts. Stuff like that. Is that what you're thinking about?
Will (06:34):
Yeah, some of them maneuvering back in the scorpion's days there, the new deal. God help us with the stuff that happened in the 19th century.
Dan (06:43):
Do you think that a justice is proceeding in bad faith if they think about the political consequences of their decision?
Will (06:51):
Not necessarily. But I do think if they do that, and it's making a difference for them, and they're unwilling to tell us that, that they're hiding that from us, then I think there is some bad faith. I think with that comes-
Dan (07:02):
That means, by implication, you think none of the justices are doing that. Are sort of secretly being moved in some way by what they see as the political consequences. How do we spend our political capital? Stuff like that. That's actually kind of a strong claim.
Will (07:17):
Well, I don't know. Justice Breyer has his methodology. I wouldn't say it's free of political consequences. He wears his methodology on his sleeve. I think he's pretty candid about the ways in which those things matter and the ways in which they don't. He says, and I think he's telling the truth, that he's not thinking about partisanship or helping President Biden and hurting President Trump. He's thinking about politics in a more global sense. Similarly, the Chief Justice. I don't think he has some secret institutional principle that he's not telling us about. I don't think he sits down and thinks, oh, I know the case should come out this way, but I can't say that because of the Court. Now, he believes in a bunch of doctrines about constitutional avoidance, and how to make precedence stare decisis. Maybe he believes in those for reasons that have to do with institutions. I don't know.
Dan (08:08):
You wouldn't believe that he is, at some level thinking, oh gosh. It's 2020, about to be a presidential election. We can't do something crazy that overturns Whole Women's Health in June Medical.
Will (08:22):
Right.
Dan (08:22):
Certainly not at a conscious level.
Will (08:25):
Right. I mean, now look. I'm willing to believe it if there's some evidence of it. I'd be willing to believe it. I just really don't see any evidence of it, and I'm sort of baffled by all the people who think they do.
Dan (08:36):
Obviously, you clerked for Chief Justice Roberts. That doesn't mean you're obliged to defend him here or anything like that, but it is something that people come away with, I think, from the jurisprudence. They say, "He must be playing some kind of long game. Punting here, punting there, saving political capital." But the truth is, we don't really know. We don't know what they think, and we don't know what justices are doing consciously versus just being motivated by things that are under the surface, that they aren't really aware of. I don't know.
Will (09:12):
I guess here's something sort of related to what we focus on. I'm open to a lot of those explanations. When I teach some areas of law, we end up considering some pretty cynical explanations for a lot of what happens. But I do think people often jump to the cynical explanations without even having really looked at the less cynical explanations. It's fine to say, "There's just no explanation for what the court did here. There's a reason they can't be taken seriously. They couldn't possibly believe that." If you really try to run it to the ground and try to understand their reasoning. But the number of people who just sort of run from, "Well, I looked at this decision. I didn't agree with it. It didn't make any sense, so they must be motivated by their evil agenda," is really disturbing. You've got to understand what the court is purporting to do to understand whether it's living up to it or not.
Dan (10:01):
Yeah, that's fair. Although, and this leads into something I wanted to talk about, which is even if we conclude that everybody in the court or everybody in the federal judiciary, let's say, were acting in good faith. That doesn't necessarily tell us that we shouldn't think about what the courts are doing from the perspective of politics in some sense. Julian Mortenson from Michigan had a good thread on this on Twitter a few days ago, which is-
Will (10:32):
I saw that.
Dan (10:32):
Hm?
Will (10:33):
I saw that. Go ahead.
Dan (10:34):
Okay, good. Where he was focusing on some remarks Justice Breyer made recently, and now seem to be that he's turning into a book that's going to be published this fall. Which basically the thesis of which seems to be that we should stop thinking about courts as political. Justices, are all just trying to get the law right and acting in good faith. A lot of people on the left are extremely unhappy about that for a lot of reasons. They think it's wrong, but also they think it means that Justice Breyer is going to retire. Julian intervened I thought in a really helpful way, which is he says, "Look, it could be descriptively right that judges do take their role seriously. They really are proceeding in good faith. They're trying to get the law right. But different judges obviously have, in performing their role, decided cases differently. Politicians know that. It matters how these cases are decided, and political actors are making decisions about who to put on the bench because of people's commitments." It's kind of a non sequitur to just say, "Well, we're all taking our jobs seriously. Therefore, stop politicizing what we're doing." Right?
Will (11:52):
Yeah. It depends on what politicizing means. Here's a way in which I really agree. I saw a great application of Julian's argument recently by Merit Garland. Merit Garland is an incredibly smart person, a great public servant, a lovely human being. I have every reason to believe that if he would have been the front of the Supreme Court, he would have proceeded in good faith and try to really honestly decide the cases in a way that wasn't at all influenced by politics. And he would've decided the cases in a way that I think is mostly wrong and been a bad influence on the law, in my view. I thought it was good that this lovely man was kept off the Supreme Court because even though he was proceeding-
Dan (12:34):
You're going to get hate mail for that.
Will (12:34):
Even though he was proceeding in good faith, that doesn't mean that he's doing something good. People could say the exact same thing in reverse about Justice Gorsuch or whoever it is they want to... they have that view about.
Dan (12:44):
You think it was good just because you wouldn't have liked that personnel change. Although if we're talking about good faith, we can also talk about political good faith and looking at the whole way that was handled. You had the move from the Garland nomination all the way to the Beyer confirmation.
Will (13:02):
Sure.
Dan (13:02):
There's not political good faith in that process.
Will (13:05):
I'm willing to defend all that I think too.
Dan (13:08):
Well, that sounds like that should be a whole other episode.
Will (13:11):
Right.
Dan (13:11):
Because I need to have a couple drinks before we do that one.
Will (13:14):
Fair enough. I guess what I mean is, on the other hand, it's right, the fact that the Justices are going to proceed in good faith doesn't mean that we can't have a view about which Justices should be in the court. That said, it probably should affect how we think about and criticize their work, and what kinds of arguments we try to make to them. If Justice Breyer is telling us, "These are the things I care about. This is the way I proceed as a justice." Then for us to turn around and yell at Justice Breyer in a more partisan frame seems like it's ineffective on the same point.
Dan (13:46):
Yeah, although it depends on whether our goal is just to persuade a Justice or to persuade other people in the political system. To persuade voters, to persuade people to take court seriously, and so on. Here's the thing that's challenging. It is true that we have these big political movements that are designed at shaping the courts. We've had a very successful one that I think culminated in a huge number of judicial appointments by the Trump administration. I think you can see the beginnings of that decades earlier, the rise of the conservative political movement. In a sense, an effort to create a whole generation of legal scholars, and lawyers, and future judges who think about the law in a particular way. And think about the law, I'm willing to stipulate that many of them do so in good faith, but think about the law in a certain way. It's hard to escape that part of the motivation, a big chunk of the motivation for that larger project, wasn't this abstract respect for the majesty of law. It was because of achieving certain substantive outcomes, right?
Will (14:56):
I don't know, but I'm not sure why. I'm not sure yet I understand quite why that matters, in a way. Once you get a given person, a given legal scholar or a given justice and you have to deal with them, none of that matters a whole lot, where they came from or how they got to be where they are.
Dan (15:13):
Yes, but it might affect what you think about the doctrine. In the sense that if the doctrine is now being shaped, even if it's being done so in good faith, in part because of a system of... that created those conditions. Does that make sense?
Will (15:31):
Maybe.
Dan (15:32):
It's not just a bunch of people sitting around philosophizing in the abstract. This is the product of a political system.
Will (15:40):
Look, we're all products of the political system, and of the biological system, and of the Big Bang.
Dan (15:46):
Yes, although there are some closer causal connections than others, right? I think the point is, it comes back to when we're talking about the court, we have to, in any given moment, figure out, what are we trying to do? Are we just trying to explain what they're doing from their perspective? Or are we trying to explain to other people what they're doing and why it's good or why it's bad? And sometimes those two goals can conflict with each other, I think. You have to choose the right balance of how to do that.
Will (16:23):
Yeah, I guess there is a way to do both. I think we want to understand why they did what they did. Did they make a mistake by their own legal rights? Does this tell us something about these various legal arguments? Then whatever the answer to that question, is it good or bad? Sometimes we can say, "Wow, this is terrible legal reasoning. It doesn't even make sense even by Justice Kennedy's own purported interpretive methodology. But it's amazing for the country and I'm glad he did it," or whatever.
Dan (16:47):
Fair enough. Okay, well I don't think I have any resolution on those questions. It's just something that I struggle with a little bit in thinking about the Court, in that it's an institution I care about a lot and that I think is really interesting, and I like studying it. On the other hand, it also is the institution that is the locus of a lot of politics. And that politicians can ultimately use to accomplish certain substantive events, a number of which I think are bad at the moment, that are in the process of being accomplished. I think I vacillate a little bit between earnest engagement with the legal arguments and deep, deep resigned cynicism. I'll try to navigate that as best I can on the show.
Will (17:38):
I was trying to have both of those at the same time. I have one last thought.
Dan (17:41):
You're giddy. You've got Gorsuch reinventing, going back to first principles on habeas. You were giddy about that.
Will (17:49):
I was excited, I was excited. But there were only two votes for that.
Dan (17:53):
Yeah, but you know.
Will (17:55):
I'll just note one other interesting thing about the legal arguments, which is how much common ground they can produce. We started by noting you and I have a lot of very different views about politics, and what's good and what's bad. What's interesting is, so far we've nonetheless been able to really dig in on the legal arguments coming from very different places. And often kind of get to the same place. I think that's what we hope law can do not just for the two of us, but for the world. I don't think it succeeds at that as often as it should, but it's interesting that at least in this little...
Dan (18:30):
Yeah, but it also depends a lot on what we're talking about. In the sense that with the Supreme Court, the Supreme Court is not one thing. It's really 20% this grand philosophizing, policy making institution. Then a big chunk of the other work it does is just this very technical statutory interpretation. A big chunk of it doesn't have any kind of clear political valence. I think in a lot of those cases, there is a tremendous amount of common ground ethnologically and legally. Then there's these other cases where these other deeper commitments seem to do more work.
Will (19:07):
I agree with that model. One thing I've always wondered and always wanted to try to write a paper on once I figure it out is what determines which cases get into which category. Do the cases just come? The day the complaint is filed, oh, this is a 20% case. This is a political case, therefore we're in political mode. Or is it the case that sometimes the justices are unanimous because they don't turn on that mode, and other times they see it different ways? I don't know.
Dan (19:34):
Yeah, I think there can be signaling things like, are there amice that kind of have certain valence lined up in particular ways in the case? Who the advocates are. In some cases, they're obviously going to have that valence, like it's an abortion case. It's a religious freedom case. We kind of know how-
Will (19:51):
They're unanimous for religious freedom cases and 5-4 religious freedom cases.
Dan (19:55):
Yeah.
Will (19:55):
But it's a little confusing how they know which one to be.
Dan (19:57):
That's fair. There's a core of cases where we're confident, but then there is this fuzzy middle where I think maybe a lot depends on atmospherics, how the case is being talked about. One thing that's also interesting in relation to that and in relation to this particular... this current term, is that we're still waiting on opinion in California v. Texas. The latest of a number of challenges to the Affordable Care Act. But one thing folks have noted, and I think I'm pulling this from a piece Nick Bagley, also Michigan, wrote a while back. Which says, "You look at these ACA challenges. You look at the atmospherics. Some of them have a lot of buy in from the establishment figures, conservative establishment. That changes the dynamics." Whereas the California v. Texas one, for whatever reason, we can talk about why that might be, never got the political buy in. It didn't get as much support from political actors. Senators didn't really sign onto it or endorse it, things like that. That maybe changes the valence when it gets to the court.
Will (21:07):
Yeah, could be. Although it's funny, even there, look. They had the Solicitor General of the United States on their side. The United States.
Dan (21:13):
Yeah.
Will (21:13):
Which is the biggest political actor in the Supreme Court world, endorsed this challenge and not the other challenges.
Dan (21:20):
Yeah.
Will (21:21):
I share your view that, somehow that doesn't count?
Dan (21:23):
Yeah [crosstalk 00:21:26] It counted, but it wasn't enough.
Will (21:28):
Well, I think you can put them in the same category. Somehow, being endorsed by Randy Barnett is more important than being endorsed by the Solicitor General of the United States.
Dan (21:34):
Yeah. Maybe the explanation is actually legal, right? Maybe the explanation is the arguments are just worse in that case. They are, in my view, pretty bad arguments. But I don't know if that's the whole explanation. I guess we're going to know more whenever that opinion comes out. It is taking a while. The longer it takes, the more it seems like something kind of funny is going on. Because there was a world in which you can imagine that not being 9-0, but being not a 5-4 barn burner.
Will (22:11):
Yeah, well let's see what happens when it comes out.
Dan (22:12):
Yeah, we will keep our eyes out for that one. Okay, so I don't think we really answered the question at all of what we're trying to do here. I think the concept behind the show was, there's this phrase divided argument for when there are two parties, and the court divides the argument between the two. I thought that was a nice riff for us given that we're going to have different views. We're going to have different views, although I don't think it's really shaping up to be a Hannity & Colmes slug fest, which is good, because we know who won in that battle. But we'll see. Part of this I think was prompted by you had some friend who was like, "Hey, is Dan really conservative? Why are you guys agreeing on so much stuff? I thought this was about an argument. You're supposed to be arguing with each other."
Will (23:01):
Yes, that happened.
Dan (23:02):
I need to stand up to you a little bit more.
Will (23:04):
Up to you.
Dan (23:06):
All right, well, we'll see. I think the court is going to give us a little bit more to work with that might produce a little bit more disagreement, spirited disagreement, as we go on in the term. Some other stuff to talk about related to that. I wanted to just continue our conversation about habeas and Gorsuch just a little bit more. I got an email about that from my dad actually, Garrett Epps. He said basically that in looking at Gorsuch's opinion, we really have to not forget, why was the court expanding habeas when it did? If you read Gorsuch's opinion, it's just like, "Well, a bunch of liberals were being stupid and not following the law."
Dan (23:58):
What he said, which I think is right, which is that you can't really understand this outside of the context of the fact that in that middle part of the 20th century, you had a bunch of southern states who were just not following the rule of law in any perspective, in any sense. It's not a coincidence that a huge amount of crim -pro, in addition to expansion of habeas, a bunch of other criminal procedure doctrine comes out of that era. 1950s, 1970s era of the Supreme Court where the Supreme Court was trying to reign in these southern courts that were really not respecting basic rule of law norms.
Dan (24:34):
Even at a lot of the war in court criminal procedure revolution cases where they don't mention race, I mean, some of those cases, race is actually there lurking in the background. Mapp, the case that recognized the Fourth Amendment exclusionary rule is kind of a secret race case. Duncan v.Louisiana, which recognized the incorporated jury trial right in the states is a case involving race and so forth. I do think that if we just say, "Well, you've just got to follow the rules." And people were just making it up. I mean, I think that does seem a little ahistorical. What do you think about that?
Will (25:14):
I don't know if it's ahistorical. I agree with a lot of that. I'd say actually it's a little more complicated. I think the slide into some of the habeas review in some ways began in the 1880s, and there's one step after another. But I agree that the core of the things the Justice Gorsuch is complaining about are part of that Warren Court project. I think that's right, and I'm not sure which way it cuts. I feel like this is actually one of the big reckonings that we're going to have in the law that some people would say we already had, but I think we haven't really already had, is what to do with the Warren Court. There's just a ton of things the Warren Court did, some of which have obviously been rolled back doctrinally, but many, many of which have not. Which may have been spurred on by their sense.
Will (25:56):
They were dealing with an extraordinary moment that called for extraordinary measures. One of the questions is, are we going to consign all that to a bygone era? I think it's possible that Justice Gorsuch would say, "Sure. The court played fast and loose because it thought it was really important it was going to do a lot of justice." He wouldn't say this, but he could say, "Maybe that's even true, maybe that was even justifiable at the time, but that's not the world we live in anymore."
Dan (26:22):
Yeah, although that latter claim is controversial, right? It reminds me of Chief Justice Roberts in Shelby County striking down the Voting Rights Act. A key part of the Voting Rights Act saying, "Things have changed dramatically since the passage of the Voting Rights Act." That's a very controversial statement, just to say all that bad southern stuff is over.
Will (26:45):
It is insane that is a controversial statement, to say that things have changed dramatically. Now, the question of whether racism is over, that's obviously false. It's not over, but obviously things have changed dramatically.
Dan (26:55):
Well, things have changed. The question is whether they have changed sufficiently dramatically in order to render the Voting Rights Act and its key protections pointless.
Will (27:06):
Sure.
Dan (27:06):
I think that is the controversy, right?
Will (27:08):
Sure. I think the question of how the Voting Rights Act, and I'm on record saying, thinking Shelby County is wrong.
Dan (27:13):
Well, you are now if you weren't before.
Will (27:15):
I was before. Don't worry. But still, I think this is one of the consequences of the war on court, is everybody needs to, feels the need to, analogize their current claims of injustice to the claims of injustice that were present then. Sometimes the analogies are more plausible and sometimes they're more of a stress.
Dan (27:34):
Although it's not just an analogy, right? You can draw a straight historical line between say criminal justice system of Mississippi to the way the criminal justice system was working 60, 70 years ago. Has it gotten better? Probably in some ways for sure. Maybe it's gotten worse in other ways. But it's not like this is just a totally new event that's just suddenly happening and we're trying to imagine saying, "Well, it sort of resembles vaguely this other universe called the Jim Crow South."
Will (28:04):
No, you're right. You could draw the line further back, and you should. In a way, it all goes back to reconstruction. It all goes back to the question of whether the civil war is over, and I'm honestly not sure.
Dan (28:15):
Yeah. We may be headed for another one given how things have been going recently, but we will see. With respect to habeas though, I do think there could still be room for preserving those kinds of rule of law values in state courts, in places where the Supreme Court doesn't have the time or energy to fix all the errors. But that said, it seems like that ship already sailed with AEDPA. It's so hard now to get meaningful relief.
Will (28:48):
Right. I guess that's the last thing I'd say is, I think our habeas conversation would be different if right now there was a lot of grants of habeas going on. Of course, the court is going to get rid of them. That's just a much different conversation than the world we live in where there's very, very little.
Dan (29:07):
Yeah, and that actually maybe make only a very small number of people worse off. And then would produce a lot of saved litigation. One other point that he flagged was that state courts were forced to suffer the indignity of having their final judgements reopened. That is kind of a strange claim. I mean, it's a Justice Kennedy-esque claim. Do states really have dignity? States are not people. States are just abstractions. Why do we care about states' dignity? Why is that a thing that matters?
Will (29:48):
I don't care about states' dignity. I think we sometimes use that as shorthand for various kinds of unwritten sovereignty principles, but I think that usually hinds us from what's actually going on. I think the question we should ask is, is judicial finality an important value? Is it just a procedural thing that we're too busy, we can't rethink things all the time? Or is there some rule of law reason that finality is really important? I tend to think that finality is really important for a rule of law reason. It's the same thing that lets us treat state court judgements as final even though they're wrong, sometimes wrong, is what lets the Supreme Court say to the President, "You have to treat our judgment as final even when it's wrong." That's actually drawing from the same common core.
Dan (30:33):
Yeah, although you can have a system that enables, that permits, various rounds of review that doesn't threaten the rule of law, if it's all happening within the framework of rule of law.
Will (30:45):
Sure.
Dan (30:46):
You still have to respect the judgements to the extent that the law requires you to do so, right?
Will (30:51):
Right, that's exactly it. If the Supreme Court goes around and starts making up or innovating exceptions to finality outside the currently set legal principles, then it seems like it's more plausible for other people to get to do that too.
Dan (31:07):
A classic slippery slope argument you're making here, I think.
Will (31:11):
Yeah, but only in the sense that it's like our entire legal regime is a slippery slope. But yes, one... I think we call it #norms. But that the Supreme Court's compliance with certain norms about law is important. If it doesn't do that, it's harder to expect the rest of us to do it too.
Dan (31:28):
Yeah. Although depending on what's going on, you could say it is more important to ensure say southern courts' compliance with basic rule of law and arms versus the Supreme Court's compliance with what we think of as the best way to interpret habeas. Which has had some historical flexibility. Is it clearly lawless for the court to just say, "We think that under the circumstances, this is the right way to extend the habeas route?" I don't know, you think not. Gorsuch thinks not.
Will (32:04):
Yeah, or thinks yes. I've lost track of that.
Dan (32:05):
I don't know.
Will (32:07):
Yeah.
Dan (32:07):
I don't know how many negatives we got in there. Well, I think a lot more to say about that, but we should go on because we've started getting some feedback. Will, you're realizing that doing a podcast produces a lot of email. People have thoughts. They want to share them with you. Mainly those thoughts are to tell you that you screwed something up a little bit or a lot, and that's okay because it provides fire for follow up. If you have comments of your own, you can email them to Pod@DividedArgument.com. POD@DividedArgument.com. They will go to both me and Will simultaneously, and we will review them and determine what we think. If you've noticed a really embarrassing mistake, we'll ignore them. Otherwise, we will possibly talk about them on the show. What have we got? What other feedback have we got, Will?
Will (33:04):
Here are just two other quick hits of feedback, also about habeas and our discussion of Vannoy. One from [Ziv Schwartz 00:33:12] who wrote in to note an interesting wrinkle about the court modifying Teague without it being briefed, which we've talked about before. Which is that Teague itself did this apparently. Teague itself says they have reached the question of retroactivity sua sponte, relying only on argument raised in an amicus brief. It's somewhat ironic that what's... I think they at least had one amicus brief in the question, but it's somewhat ironic that the Teague introduced doctrine that wasn't argued by the parties now is being modified in a way that wasn't argued by the parties.
Dan (33:45):
What is it about this doctrine that just makes courts want to make things up on their own?
Will (33:49):
Well, the sympathetic question would be, these kinds of questions of retroactivity are really important for the system to have a good answer to, and not that important for the litigants to have a clear answer to. If it's a determinant of your case, you do your best to get through it or not. But it's not like it's not an area where the adversary system has the right incentives [crosstalk 00:34:11]
Dan (34:11):
Yeah, at least to develop kind of a comprehensive framework.
Will (34:14):
Right.
Dan (34:16):
Teague framework is kind of complicated. There's no particular reason that any one litigant is going to be able to say, "Here's what we think the rule should be. You should have this procedural and substantive, and the watershed rule."
Will (34:26):
Right.
Dan (34:28):
That's not something that they're going to bother coming up with.
Will (34:31):
Right, and ditto. There's no reason in Vannoy for the state to take the heavy lift of trying to say, "Look, not only is this not a watershed rule, but you should say there's never going to be a watershed rule."
Dan (34:41):
Yeah.
Will (34:41):
It's not their problem. Why would they try to argue that?
Dan (34:47):
And so maybe they just think, okay, might as well resolve that. No one else is going to make us resolve that, so let's just clear things up.
Will (34:54):
Yeah, and another comment from another listener who noted how plausible we seem to find Justice Thomas's argument that overruled Teague, and had some questions about how if you read a bunch of other sections, there are a bunch of places where it seems to anticipate that there will be some retroactive decisions on habeas that gives you an exception to the second successive bar. It gives you a longer statute of limitations. It's just the exceptions never appear in the really crucial part of AEDPA about what the standard of review is, and that you need to have fully established law.
Dan (35:29):
Yeah.
Will (35:30):
He said that that raises a little bit of a puzzle about whether it's really designed to overrule Teague or not.
Dan (35:35):
It's been a while since I've really dug into the statute. My thought was what AEDPA was doing was what AEDPA was doing was making some room for people to bring forth arguments that had never been raised before, and that were recognized as retroactive. Things that people could never have anticipated.
Will (35:51):
Yeah.
Dan (35:52):
But if you're making an argument that has been adjudicated previously, as the defendant in Edwards v. Vannoy had, you're still out of luck. Not that AEDPA completely overrules Teague in every respect, but on the facts of that case, the defendant was out of luck.
Will (36:14):
Yeah, I think that might be right. I was just going to point people to an amicus profile of Edwards by Adam Mortara, a lecturer I think at Chicago and one of the world experts on habeas frequently called on by the Supreme Court to argue as amicus in habeas cases.
Dan (36:31):
He's one of the only people that's actually been asked to argue cases in amicus in support of the judgment multiple times. I think, has it happened three times now?
Will (36:41):
I think it's three. I don't know if anybody else has that record.
Dan (36:45):
Yeah, I'm not sure if I know anybody else that has gotten two.
Will (36:49):
Yeah [crosstalk 00:36:52] They could tell us. Anyway, he had an amicus brief that made the argument that Justice Thomas adopted. He goes into a little more detail about exactly this. About how you can have claims that were not adjudicating the merits, but you still have cause and prejudice to excuse your procedural default. I won't go into the details anymore except to say if you're interested in these kinds of things, you should definitely read the Mortara brief.
Dan (37:13):
Absolutely. Benjamin [Clabenov 00:37:16] writes in to say, to offer comment, about our conversation. I think it was the very first episode about the court's original jurisdiction and Justice Alito's view that the court is impermissibly denying leave to file complaint just because it doesn't want to hear some of these cases. He says, "What's the different between what the court is doing, denying leave to file complaint to a state, and just a district court dismissing a complaint at the motion to dismiss stage on a 12(b)(6)? Is the real objection that the court isn't issuing an opinion at the time it denies to leave a file, such as a complaint, explaining why the case is not worth hearing?" What do you think about that, Will?
Will (37:55):
No, it's a great question. I think there's a different more important difference, which is when a district grants a motion of dismiss, it has to decide the case and the merits. It can only dismiss the case if it concludes that you have no legal claim under the 12(b)(6) standard. When the Court denies to leave a file complaint, it doesn't have to decide that. It could think, you have a perfectly plausible legal claim, but we don't want to hear it anyway. Or probably more likely, we don't even know if you have a plausible legal claim or not. We don't feel like figuring it out and we're just not going to. The question is whether you have a right to have a judge look at your case on the merits.
Dan (38:31):
Yeah. It's like if you filed a complaint in a district court and then the district court were able to sua sponte dismiss it under rule 12(b)(17) that sort of said, "If you skim through the complaint and it looks boring, throw it in the trash." That's more like what the court is doing here, I think.
Will (38:47):
Now, I will note two things. One is, you might think that even when the court is deciding whether to grant leave or file a complaint, surely they're at least doing a quick look on the merits. Surely if a bunch of Justices saw the claim had merit, they would agree that it would be filed. I don't think that, but that's possible. If that were true, then the difference would be a little bit thinner.
Dan (39:08):
Yeah, although we still want to formally ask, what is the legal significance of that action?
Will (39:13):
Right.
Dan (39:14):
Does it actually constitute a judgment that this is really an adjudication on the merits of the claim?
Will (39:23):
Right, and what is the standard of review they're applying? There's a difference between I've looked at this, I've really looked at this and your claim doesn't work, and I don't know, that doesn't sound plausible to me. I don't need to hear anything more. The other thing is, this is really about the good faith point, again, if you think what the court does in all cases is just whatever it wants, then again, there's not that big of a difference. Then you think in a way, all of the court's decisions are discretionary. They're just doing whatever they want to and then having their law clerks write it up. Again, I don't think that, but I think a lot of people would say, "The court does it sometimes, but not all the time."
Dan (39:56):
Yeah. Especially in these areas though where it's about their work load. In the era where the court had much larger mandatory appellate jurisdiction, they were doing a lot of things that looked kind of like sort of denials. They would just dismiss for want if it was a potential federal question, or they were really trying to get rid of as many things as possible that maybe they really did have an obligation to spend a little bit more time with, right.
Will (40:20):
Although these regional jurisdiction cases, we don't know how much it's about workload and how much it's about... they've been about Colorado's marijuana laws. I think one of them was about maybe the Oxycontin litigation. I think the most recent one was about, in a way, sanctions. Economic sanctions imposed by different states against each other for essentially political reasons. There could be some political aspects to their decisions that have to get involved too.
Dan (40:48):
That's plausible too. All right, so what else is there to talk about? I think you had flagged some thoughts that David Lat had shared I think on his... is it on his blog, Original Jurisdiction?
Will (41:01):
His new Substack, which is a great read.
Dan (41:04):
Yeah. I guess a Substack is technically not a blog. It's technically a newsletter, right?
Will (41:09):
Yeah.
Dan (41:09):
But it's a good segue. We were talking about original jurisdiction. Now we're talking about his Substack, Original Jurisdiction. He was talking about Dobbs v Jackson Women's Health Organization, the recently granted abortion case. He made some very specific predictions about what he thought might happen there. Do you want to walk us through those?
Will (41:27):
Sure. Also, the general theme of this is the prediction that this will be a big case, maybe bigger than at least I entertained the last time we were talking about it. His initial bottom line prediction for the resolution of Dobbs is that Justice Barrett will write a plurality opinion for herself, Thomas, Alito, and Gorsuch, voting to overrule Roe and Casey entirely. Sending the issue of abortion back to the states with Chief Justice Roberts and Justice Kavanaugh, writing a controlling opinion that takes some sort of middle path that Roe and Casey will still go to law, but that gives states more leeway than before. Then he walks through several possible ways the Chief and Kavanaugh can do that.
Dan (42:12):
I've got to say, nobody knows. If you told me that had happened, I would believe that. That sounds imminently plausible. David Lat is somebody who watches the court and has a good sense of justices' philosophies and personalities. Now, who knows? But I think if you were going to put money down, that's not a crazy prediction. What do you think?
Will (42:38):
It's not a crazy prediction and I'll say I started to become convinced. I was maybe not seeing how much is going on here. Another reason for that, which may sound a little in the weeds, is I keep coming back to this question of why the court decided to grant one of the questions presented and not the other.
Dan (42:56):
Yeah.
Will (42:57):
It decided to grant the question presented of, is there a bright line rule of viability? Instead not to grant the question of, what's the standard? Is it Casey? Is it Whole Woman's Health? How do we make sense of the Chief's concurrence in June, which seem to rely on a different reading? The reason that puzzles me is the following. The first question, is there a bright line rule of viability? Is one of the only areas of abortion doctrine that's currently completely settled. Jim Ho in the lower court said, "This is just plainly controlled by existing precedent. Yes, there's a bright line rule of viability."
Will (43:30):
They grant certiorari on the one piece of abortion doctrine that's not really that contested. The second question is one in which there's a circuit split. The petition emphasized that there was already a circuit split and lots of confusion about how to make sense of the Chief's concurrence on June Medical and what it did. The normal thing to do would have been to grant the second question and not the first. The fact they granted only the first and not the second is odd. One reason you would do that is because you thought you finally had the votes to make a big change in the doctrine.
Dan (44:07):
Yeah, that's really interesting. I don't actually remember. I don't remember if this even came up, how these choices about which questions to grant cert on are really resolved. Typically, I think the justices just know if they're going to grant the petition or not. But I guess people can say, "I'm going to vote to grant on question one and vote deny on question two." Maybe that's just what happened. The people that wanted to take the case all just said, "We're only interested in question one."
Will (44:38):
Yeah.
Dan (44:39):
That does seem like a plausible scenario. I mean, but again, you only need four. It could be that the four are the four that David Lat predicts will vote to overrule Roe, and doesn't tell us what the other two conservative justices are going to do with the case.
Will (45:01):
Here's the last interesting suggestion somebody made to me. Is it possible that the fourth vote to grant, that three of the votes to grant as everybody seems to assume, came from Gorsuch and Thomas Alito. Is it possible the fourth vote to grant came from Justice Sotomayor?
Dan (45:17):
Say more about that. Are you assuming that because she's Catholic, she's secretly anti-abortion?
Will (45:24):
No.
Dan (45:26):
What's her agenda there?
Will (45:29):
She might think, look. It seems like if left to their own devices, the majority is going to slowly riddle Roe and Casey away without ever formally overruling it. That'll be substantively very bad for women especially. Women with a lot of options who want to get an abortion, but they won't ever take the political hit for doing it. We should call the question. We should grant, and we should grant only the most confrontational question now while the country is paying attention. We should see where we stand. Either they're overrule Roe and Casey, in which case they'll have to take a huge political hit for doing it. We'll know right now we won't spend 20 more years dragging it out, or they won't. They'll reaffirm it, in which case that'd be great.
Dan (46:17):
Although it still is open to them to do the kind of intermediate thing. Which is the thing that David says that the Chief and Kavanaugh opinion might do. Which would be, well, we're not overruling. We're just kind of supplementing it. We're adding some other things you've got to consider or whatever.
Will (46:34):
Sure.
Dan (46:37):
Because the question presented isn't, should Roe be overruled?
Will (46:42):
Right.
Dan (46:43):
That would have really called the question.
Will (46:45):
That's right.
Dan (46:45):
You'd have to say yes or no.
Will (46:46):
That's true. But even getting some of the justices on record saying, "Our colleagues are calling for Roe and Casey to be overruled. We don't join them because..." Presumably they'd have to give reasons. It might also help shore up Roe and Casey in some way.
Dan (47:03):
Well, I tend to think, my instinct is that this one is going to be quite significant as well. In part, a while back, I was just trying to gain, before this case was granted, just what the future of the abortion jurisprudence looked like. The conclusion I came away with was that if they're going to overrule, they're probably going to do it sooner rather than later. The reason being a couple things. Keeping in mind that when you make these decisions about granting cert, people, they have a lot of discretion. As you said, they sometimes take into account these long-term political considerations in deciding, is it the right time to take this case? But if you think about it, if you think that the votes are there and you have them, you may not have them forever. Stuff happens, people die.
Dan (47:55):
If you actually have the chance and it's something that you care about, you should take it if you have the opportunity. I'm just thinking of seeing this thing from the perspective of a conservative justice who actually wants to overrule Roe. Then also, you might as well do it as far away from a presidential election as possible. You should not do this in June 2024. It suggests to me, do it now. That would be the strategy if you were gaming it out. I'm not saying everyone would make that same conclusion or even consider the same considerations that I went through. But doesn't that make some sense?
Will (48:39):
It does. I mean, I'm still not convinced the justices care that much about when the presidential elections are because they have life tenure, but it does. I guess I think part of what there is also is I think this split dynamic among judges. There are some judges who want to overrule Roe v. Wade. There are some judges who do not want to overrule Roe v. Wade, but they'll do it. If they have to answer the question, that's what they do, but they would love not to have to answer the question. We don't know exactly which justices are in which category, although all of us have our guesses. Some of what must be going on is the dynamic between those justices.
Dan (49:14):
Yeah, and that the latter group are saying, "Oh gosh. Do we really have to do this right now?"
Will (49:21):
Right. Although if you're just counting noses, presuming we'll lose the two justices' vote in June Medical has to make you nervous.
Dan (49:32):
Yeah. Sure, he could say the question wasn't whether to overturn precedent. In the right case, I would be open to that, even though I was just following precedent there. But it does suggest that he's not rip roaring to totally destroy this area of law I think, right?
Will (49:53):
For a long time when we had the court with Justice Kennedy sort of in pull position, for a long time, there was this dynamic of lots of things that Justices on the left and the right wanted to do. But Justice Kennedy was enough of an independent mind that people would be a little too nervous about calling the question if they weren't sure what he was going to do. That may now be true of the Chief. Maybe it'll be true with Justice Kavanaugh. It may just be inevitable.
Dan (50:20):
Speaking of Kavanaugh, I think there's going to be a lot of armchair psychology with him in trying to figure out what he's thinking. One thing that people have picked up on recently, I think Josh Blackman noted this in a blog post. I think David actually, David Lat in his post, actually kind of flagged this as well. Because he predicts one possibility is that Justice Kavanaugh will write a solo concurrence discussing the difficulty of abortion as an issue that many moral complexities presents a strong interest on both sides. Basically, what this highlighted is the thing Josh had noted. Justice Kavanaugh writes these opinions where even if he's doing something really conservative, he always wants to say, "But there are good arguments on the other side. This isn't the end of the road. I really care about the people who are losing." He seems to have this impulse to make everybody happy.
Dan (51:12):
If you are someone who is really hoping super rigid, hardcore all the way down conservative rulings for him, I think that maybe makes you a little nervous. Because it sort of suggests this is somebody who maybe he actually does care about what the editorial pages are going to say about him, and what the obituaries are going to say about him. Maybe he is a little bit more susceptible to what has been called the Greenhouse effect. This idea that Linda Greenhouse in the New York Times, when she would write about the Justices, would cause them to drift a little bit away from their conservative principles. I don't know.
Will (51:45):
I think that's kind of a mistake or it's confusing two things.
Dan (51:49):
Okay.
Will (51:49):
I think it does seem to be right that Justice Kavanaugh cares a lot about trying to explain to the public, to the legal community, why he's doing what he's doing. And trying to come up with... yeah, to make people happy. To show this makes sense. There's a real reason behind this that my colleagues haven't spoken on before. I don't know that it follows from that that he also cares, that he's also going to be swayed with what the community is doing. The fact that somebody is a good talker doesn't always mean that they're a listener and going to be really receptive.
Dan (52:21):
No, that's fair. Although it does suggest something about who they see as their audience. And that if someone looks like they really are writing in a way that suggests that they want to make a broader swath of people happy, or at least not as angry with them, versus someone who clearly is just writing for the home team. That might change how you might think about how that person sees themselves, what their intentions are. How likely they are to maybe be swayed in the future. I agree, it's different. But it does seem probative, right?
Will (52:59):
I see the point that people are looking at. I do think that Justice Kavanaugh is a really smart guy and he wants to explain himself. He wants to convince people. I don't know that I'm as convinced that he's going to change his votes to carry favor.
Dan (53:16):
Yeah, although it is notable that people really... maybe this is just a product of the votes he's cast so far. People are already seeing him as the kind of squishier left edge of the right flank of the court if that makes sense. I think there's a lot of metaphors going on there, but you know what I mean, right?
Will (53:36):
I'm picturing a plush ax.
Dan (53:39):
Yeah, don't picture it. It's gross. But that people have sort of decided, the conservatives have already decided Roberts is a lost cause. They've already decided, there's this common narrative that of the other five, Kavanaugh is the one that's going to... he's going to moderate more.
Will (54:01):
It seems like they're all doing about what you would expect on the basis of their records and their confirmation hearings. I don't think we've seen a lot of drift here.
Dan (54:12):
No. Even if we were going to, I think usually that's the kind of thing that it takes quite some time to manifest. I think that-
Will (54:21):
It didn't take Justice Souter very long.
Dan (54:23):
He had like a term or so though where he voted in a more conservative direction. Then he sort of figured out, wait. What's going on here? I'm just [crosstalk 00:54:33] Yeah, so who knows? But I think that we may see a lot of speculating about Justice Kavanaugh's psychology and what he's really thinking, in the way that we did about Justice Kennedy for a good 15, 20 years.
Will (54:48):
Yeah. Are you looking forward to that?
Dan (54:51):
It's not my idea of a good time, but Will, this is the business we've chosen.
Will (54:58):
Speak for yourself. I do law. Well, Dan, I think that's about all I have to say until we get opinions, which I fear will be pretty soon. Until then, I just wanted to say thank you to the Constitutional Law Institute for sponsoring our endeavors. Thank you to our listeners for tuning in. Please review us, rate us on iTunes or wherever you rate podcasts. We're still trying to get out there. We've only been at this a week. We appreciate your help in finding new voices.
Dan (55:29):
Yeah. Will, however much you fear new opinions, I'm sure I fear them more. But yes, thank you for listening. If you have comments, send them on to us. Pod@DividedArgument.com.