We cut to the chase with extended discussions of two of last week's cases: United States v. Rahimi, which upheld a federal gun law against Second Amendment challenge and produced six concurring and dissenting opinions; and Erlinger v. United States, a case about the jury's role in sentencing that continues a line of cases starting 25 years ago in Apprendi v. New Jersey.
We cut to the chase with extended discussions of two of last week's cases: United States v. Rahimi, which upheld a federal gun law against Second Amendment challenge and produced six concurring and dissenting opinions; and Erlinger v. United States, a case about the jury's role in sentencing that continues a line of cases starting 25 years ago in Apprendi v. New Jersey.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: So, we're going to try something new today, Will, which is--
Will: Unpredictable.
Dan: Yeah, you could have predicted this, that we're not going to spend [chuckles] 45 minutes debating every latest news story about Supreme Court ethics.
Will: Good.
Dan: Actually, maybe just talk about cases and maybe we'll get to that stuff later, check it out. The only thing I will say about it is there's been some pushback by Mark Paoletta in the Wall Street Journal about the way in which Fix the Court added tallied up the different Justices gifts. I haven't dug deep into it enough to know who's right here, but just putting that on the table for people that are skeptics.
Will: All right, where should we start?
Dan: You say anything about what's happened at the court? Just give people an overview since last time we were out there.
Will: So, we've had nine more decisions since we last recorded. Four on Thursday, five on Friday. Diaz v. United States, Chiaverini v. City of Napoleon, Moore v. United States, Gonzalez v. Trevino upper curium. We could debate that counts as an opinion, but it was an argued case. United States v. Rahimi, Smith v. Arizona, Erlinger v. United States, Department of State v. Muñoz and Texas v. New Mexico off of the original docket.
Dan: It's a lot of stuff. Are we going to hit all of those today?
Will: That would be a fun challenge, we could try at some point to see can we do four minutes per case and get through them all.
Dan: And we could do four minutes of extremely low-quality content. I would be just googling the SCOTUS blog analysis and then just trying to put it in my own words really quickly.
Will: No, it’d better if were just skimming this a little by. Texas v. New Mexico is a 5-4 case on the original docket, Gonzalez v. Trevino, while it’s a per curiam is maybe in opinion Justice Alito is supposed to write and then lose. But I don't think we should talk about those.
Dan: At least not today. Okay. And then, other stuff going on at the court. The court granted a petition about a Tennessee law banning gender affirming care for transgender minors. So, nothing to say about that on the merits right now, but we'll say that it looks like next term, we're already going to be lining up some hot button issues. So, in case you thought that we were going to get out of the business of having the Supreme Court decide all important social and political issues in this country, that's not stopping anytime soon.
Will: Well, let's see how they decide it.
Dan: Yeah. Well, so which one do you think you want to talk about? So, we've got, by the way, there's, what, 14 left and three decision days this week. Wednesday, Thursday, Friday.
Will: Uh-huh. And did you write to them and warn them you were on vacation, so they got to get them out by Friday?
Dan: I didn't. Do you have the email address? Can you just send me the Chief's email address for that kind of stuff?
Will: I will send it youafterthe show.
Dan: Okay, great. That's a lot. So, I think we're definitely going to record once more this week, right? Are we going to record twice more? I don't know.
Will: We'll see.
Dan: Yeah.
Will: I mean, of course, the opinions are, hopefully, mostly done by now. So, it's not like between now and then they have to write 14 opinions. It's like between now and then they have to finish duking it out with the separate opinions or whatever it is they're doing.
Dan: Yeah. People gotten so mad about the timing. There's various people saying that there's nefarious schemes going on because it's taking them longer than normal. We're really just talking about a difference of a week or two. And I think what we're seeing is that, gosh, this crop of Justices and the younger Justices, relatively young Justices, seem to really like writing for themselves, and everyone wants to say something, and it just makes these things take forever.
Will: Yeah. As you said, it's not even taking them that long, although.
Dan: Yeah, I mean, they are more behind than they have been in quite some time. I mean, it's not like this is stretching into September, though. I mean, the question is, how much do they have to do the last week of June versus-- Often, they go into the last week of June with fewer than 10 cases left. Now they're 14.
Will: The term I clerked, we stretched into September.
Dan: Not the whole summer, what do you mean?
Will: Well, we didn't resolve one of our cases, Citizens United v. FEC.
Dan: Yeah, but that was carried over for re-argument. That's a totally different, that's a totally different situation.
Will: It was the first time, I think, that the court did not discharge all of its cases from that term by the end of the term, since the Chief had been there, and he did not let me forget that fact. [laughs]
Dan: Was that one your fault?
Will: No comment. [laughs] Only the good parts. All right, let's talk about Rahimi.
Dan: Sure. Okay. We talked about this one before. This is one of the rare cases that merited a preview/-- Did we recap the argument in this case? I think we maybe talked about it post argument, but what's going on in Rahimi for those who haven't been listening to every episode.
Will: Unlike Garland v. Cargill, the bump stock case, this is a case about the Second Amendment and the right to keep and bear arms. In particular, there's a statute, 18 U.S.C. § 922(g)(8), it's adjacent to the well-known federal statute that makes it a crime to have a gun if you're a felony. But it's also a crime to have a gun if you're a bunch of felon adjacent things, not at issue here, convicted of a misdemeanor crime of domestic violence or under indictment. Here it's a crime to have a gun if you are the subject of a domestic violence restraining order. And a domestic violence restraining order is defined in the statute to require that there have been a finding that you represent a credible threat to the physical safety of an intimate partner or child, or that the restraining order, by its terms, explicitly prohibits the use of physical force and so on.
And so, Mr. Zackey Rahimi was subject to a domestic violence restraining order. It seems to have been quite necessary in his case, the facts of his case involve a lot of violent misbehavior and misuse of guns, but putting that aside, and he was found to have a gun, a pistol, a rifle and ammunition, along with a copy of the restraining order. So, the question is whether the statute is constitutional.
Dan: Yes.
Will: The Fifth Circuit had said it is not. The Fifth Circuit, after Bruen came down was one of the first courts out of the gate to say, “Oh, well, Bruen changes everything.” This statute is totally facially unconstitutional because we looked through all of the historical law books and we didn't find anything in Blackstone or in the colonial charters about domestic violence restraining orders resulting in the inability to have a gun. Therefore, there's no adequate analogy under Bruen, therefore, the statute is unconstitutional. And 8–1 in a resounding victory for Solicitor General Prelogar, the Supreme Court says, “No, no, that's not what we meant at all.”
Dan: Yeah. So, seems to be saying here that courts should not be quite as parsimonious in trying to look for historical analogs. You don't need to find, the court had previously said but reiterates, you don't need to find a historical twin of a prohibition in order to determine that a prohibition is constitutional. As the court does here, look at stuff in the past and does it seem kind of like that, right?
Will: Well, not just that. So, what the court says, and I should say this is an opinion by Chief Justice Roberts and somebody-- [crosstalk]
Dan: Relatively short compared to the overall length of all the opinions in this case.
Will: Indeed. And somebody said this might be his first opinion on any Second Amendment issue. I mean, he did not write the majorities in Heller or McDonald or Bruen, and I'm not sure he even wrote a concurring opinion in any of those. He may have joined a concurring opinion or two here and there.
Dan: I don't think so.
Will: He might have drafted the per curiam opinion in Massachusetts v. Caetano about stun guns, but the whole thing about a per curiam is we don't really know. So, anyway, so we get the Chief weighing in to bring order here. And he says, “The thing about the analogical method is you're supposed to look for the principles underlying the historical evidence,” so you don't just look at individual examples and then sort of squint and say, “Is this good enough?” You're supposed to ask, “Why were those laws unconstitutional? What's the general principle that it describes?” And keeping that in mind, that's part of why you don't need to find a dead ringer or historical twin for the law. So, he instead looks to history to see what principles emerge about regulating the right to keep and bear arms.
Dan: What does history show us in terms of those principles?
Will: The main thing history shows us is that you can disarm people who are dangerous. So, if people had been shown to be dangerous in some individualized sense, there were various measures the state could take. That's a valid reason for regulating their right to keep in bear arms. This is something that Justice Barrett had also written about on the Seventh Circuit. Judge Barrett, there's a much-cited dissent of hers in a case called Kanter v. Barr, where she also derived that principle from a bunch of historical evidence, some of which now appears in Chief Justice Roberts majority opinion. I suppose if you were not an originalist or a Bruen fan, you might say, “Duh,” surely that's common sense that you can disarm people who are dangerous. Did it really take us two decisions and a dozen citations to Blackstone and the Edwardian statutes to figure out that you can disarm dangerous people? But that's where we've gotten.
Dan: Yeah. And the thing that's interesting is, I mean, these laws are not exactly the same, right? This comes up with respect to the argument between everybody else and Justice Thomas in dissent. So, one of the big sources of historical comparison are these surety laws.
Will: Yeah.
Dan: Right. Which is basically someone who'd be like, “Hey, this guy's dangerous.” And they would say, “Okay, well, people think you're dangerous, you've got to give us a bunch of money. And if you use [chuckles] your gun in a dangerous way, you lose your money,” or something like that, right?
Will: Right. [crosstalk]
Dan: More or less.
Will: Yeah.
Dan: Which is weird. I mean, today we wouldn't really think of that as for violent crime, necessarily the right solution.
Will: Well, we do. I mean, again, it's not the same, but in the bail system and places that have not yet abolished cash bail, we do sometimes do this. There are some people, we say, at no price can you be released.
Dan: Yeah. Although. But bail-- I mean, the whole reason under the Constitution, bail is supposed to be limited based only on ability to pay. Bail should not be increased because someone is more dangerous. Under the Constitution-- you can refuse to grant someone release because they're dangerous, but you're not allowed to just say, “Well, more money for more danger.” The amount is supposed to be set based on the need to ensure your appearance at trial.
Will: But you can also wave bail for somebody who's not dangerous. You could say some people are just, “We're going to let you go on your own recognizance.” And some people who are maybe dangerous, you're going to have to post some money. And that's what the surety laws are doing.
Dan: In theory, the amount of money should be tailored to ensure your appearance at trial, not to prevent you from being dangerous.
Will: But the threshold determination, like, some people could just carry their guns around all the time, and some people have to post bail to have their guns that might be sort of similar. Just two asides that are interesting things about this discussion of sureties. One is the naval gazing question of who gets cited. I don't know if you saw this, Dan, but they cited a law professor who does excellent work, but I feel is not often cited in Supreme Court opinions. Daryl Levinson at NYU.
Dan: Yeah, one of my favorite articles, Collective Sanctions.
Will: Yeah. I did not have that on my bingo card, but that was a nice little reference in the discussion of sureties.
Dan: It's a really cool article about canvassing all the ways across law throughout world history, legal regimes have imposed legal sanctions on one person or a group of people in order to influence the behavior of some other person.
Will: Mm-hmm. I think I'm against that.
Dan: Just categorically you're-
Will: Well, yeah.
Dan: -kind of an individualist.
Will: I am kind of an individualist.
Dan: Joint and several liability?
Will: Well, there at least both people have done something wrong, right?
Dan: Well, it depends, depends on the fact pattern, but, yeah, sometimes.
Will: Well, I'm more okay with it if they've done something wrong. There is also this interesting point that the court makes, that the surety laws in particular were even explicitly referenced for domestic violence purposes. As Blackstone explained, “Wives could demand sureties against their husbands, or husbands, if necessary, against their wives.” Discusses how the peace bonds and various things could be used.
Dan: I just really don't understand how that would work in practice. Like, you're at risk of being murdered by your spouse, and then they're like, “Oh, well,” [chuckles] if I have to lose the 500 pounds, whatever the 10 quid, I don't know, what amount it would be, but that's going to make the difference?
Will: Yeah. Could, on the margins. I'm also not positive. When I was digging into these examples a while ago, I'm not sure they're all actually talking about the exact same procedural phenomenon. The Court is lumping them together. My vague recollection is some of these sources are really about the inherent powers of the Justice of the peace, and some are about sureties and some are about bonds. I don't know if the details really matter, but they might have had some.
Dan: Were you doing some work on Second Amendment stuff?
Will: So, I have an article coming out almost in final form in the Notre Dame Law Review with Robert Leiter called The General Law Right to Keep and Bear Arms, which discusses the question of how to interpret Bruen and the more or less arguing for something like what the court does here, although they don't cite us or use any of our theoretical terminology, so I'm not going to pretend to take any credit.
Dan: Does your approach lead to a similar result?
Will: Yes.
Dan: And does the methodology look the same?
Will: Similar.
Dan: So, what's its contribution to ideas?
Will: Our article?
Dan: Yeah. You're saying you anticipated this approach, or are you just explaining the Bruen approach all over again?
Will: So, the article is an article on the methodology of Bruen that unites it with the general law approach to the Fourteenth Amendment, something I've written about before, and argues that Bruen is actually calling for something like general law reasoning in expanding the scope of traditional constitutional rights. And that's, I think, the best way to make sense of this kind of, you look to a bunch of historical examples and then try to distill out of them a principle but why exactly. And at least our claim for why exactly is that's how the common law method worked, is you had a bunch of cases or statutes or data points, but what united them was some kind of principle, and that was what the common law judge was supposed to do.
Dan: And does your approach apply both to cases involving the federal government and cases involving the states? Is it a Fourteenth Amendment specific argument, or is it?
Will: It applies to both.
Dan: Okay, cool. Well, I will--
Will: Probably easiest to see in the Fourteenth Amendment context, but I think it applies just as well. Anyway, it doesn't get as deep into the weeds on the surety's examples and so on, because part of what we say is there clearly is this dangerousness principle. And once you agree that's the right principle, that goes 80% of the way to resolving Rahimi. I'm sure we're about to talk about the remaining 20%, but I'm pretty happy to see this opinion. Interestingly, the SG had tried to push something similar and had tried to get the court to deal with this at that level of principle and so on, but they had what they called the responsibility principle rather than the dangerousness principle.
Dan: Yeah. From some language in Heller that said the Second Amendment elevates above all other interests the right of law abiding, responsible citizens to use arms in defense of hearth and home.
Will: Yes. And the court goes out of its way to reject that. The court says, “Finally, in holding the Section 922(g)(8) is constitutional as applied to Rahimi. We reject the government's contention that Rahimi may be disarmed simply because he is not ‘responsible.’” “Responsible is a vague term. It is unclear what such a rule would entail, nor does such a line derive from our case law. In Heller and Bruen, we used the term to describe the class of ordinary citizens who undoubtedly enjoy the Second Amendment right. But these decisions did not define the term and said nothing about the status of citizens who were not ‘responsible.’ The question was simply not presented.” I've read the speculation that passage was something that somebody must have insisted on putting in there for the price of joining. I'll go along with upholding this on a general dangerousness principle, as long as we explicitly reject and say it's part of our holding that there's no responsibility principle.
Dan: That’s possible. And why do you think that would be the case?
Will: Well, I will say it’s tacked on-- [crosstalk]
Dan: It's troubled by breadth of the government's argument, the vagueness?
Will: I think the breadth. I mean, the government was hoping to use this case to also essentially uphold all the felony possession cases. So, there are a whole bunch of cases that come up in the future that the court doesn't resolve. For one thing, the court starts out by saying, I think very importantly, that because this is a facial challenge, all they really have to do is decide that Section 922(g)(8) has constitutional applications, that there are people who it's constitutionally applied, but there are still arguments that a lot of the restraining order system is unfair or doesn't really comply with due process or doesn't do a good job. And even Section 922(g)(8) itself has two parts.
One for people where there was a finding of dangerousness, and another one for people where there isn't a finding of dangerousness, but the restraining order says, “Don't use force,” and the court doesn't even uphold the second part of that. So, they're still leaving a bunch of things up in the air. And I think, obviously, the SG is thrilled to get a win. But I think they were hoping for something that would let them say all the felony possession cases, these are all fine.
Dan: Yeah. I mean, I think they wanted that language from Heller to be a two-pronged test. Like, one, are you law abiding? Two, are you responsible?
Will: Right.
Dan: That doesn't work.
Will: And then one other limit built into the opinion that I think is important is the court makes something of the fact that the deprivation of Rahimi's right to bear arms is not permanent, that it's temporary. Not that temporary, because the restraining order is going to be in place for a long time, but it's not permanent. And I think that had come up in the battles about the history. Some people have argued a permanent deprivation of a constitutional right is something is at another level. And you'd need historical evidence of that. And none of the historical examples are of people who were permanently deprived of the right to keep in bear arms, unless they were loyalists or slaves or Indians or something. And the majority seems to avoid ruling on that. And that's also going to be important for the felons, because a felony conviction essentially permanently deprives you to keep and bear arms. And you could imagine the court saying, “Look, it's fine to do this for a while, but you got to have a process for deciding on people are no longer in danger.”
Dan: So that's the majority. Pretty brief. And then a lot of people wanted to write separately [Will chuckles] in this case.
Will: Yeah, 80 pages of extra opinions.
Dan: Yeah. Why do you think this case, in particular, attracted so much interest in other Justices writing? So, in addition to majority opinion by the Chief Justice, we're going to have a dissent by Justice Thomas. But in between, we have a concurrence from Justice Sotomayor. Concurrence each from Justices Gorsuch, Kavanaugh, Barrett, and Jackson.
Will: Yeah,
Dan: That's a lot.
Will: It's almost everybody.
Dan: Yeah. It's the four most junior Justices.
Will: Yeah. So, I don't know. So here are a couple hypotheses. I mean, one is, if you're a relatively junior Justice, you often don't get to write about big stuff unless you do it in separate writings, because opinions are assigned by the senior most Justice, and senior most Justices often want to keep a lot of the cool opinions for themselves. So, if you've got stuff to say about this, you just need to write it up yourself. You can't think, “Oh, I'm going to get the next Second Amendment case.” And once some of them start writing, I wonder if that makes others start writing, because especially this case has, I think, been described in as if it was going to tell us something about the court. Is the court really committed to being crazy originalists who are going to cause us all to die, or are they reasonable? Or is the court going to backtrack from principles now that Justice Barrett, that switch, has a lot of influence? Or they going to stick to the true originalism as defined only by Justice Thomas and Justice Alito, depending on which websites you read.
And so, I feel like they're all aware there's a little bit of that spinning going on, and that may make some of them want to talk, and then once some of them talk, and once if you read Justice Sotomayor's concurrence and you want to make sure she isn't the one spinning it, maybe you have to write, I don't know. What do you think?
Dan: Yeah, that may be. Maybe this one in particular people find interesting. This one in particular attracts some writings, and then it feeds on itself. In general, we do seem to have some of these newer Justices really, or seem interested in putting their marker down and explaining their methods more broadly. Sometimes that can be interesting. Sometimes it can be a bit much. I thought the volume here and every Justice's interest and sort of offering their approach, I could have done without some of it. But we now know more what they think. One thing that's interesting is so that the only Justice who neither writes something, including the majority, nor joins a separate opinion is Justice Alito, which is interesting.
So, the Chief wrote. Everybody else either wrote a concurrence or in Justice Kagan's case, joined one. She joined Sotomayor’s or dissents like Justice Thomas. So, Justice Alito must have just been completely happy with this majority.
Will: [laughs] Or he's being nice to the Chief.
Dan: Yeah.
Will: At least somebody. [Dan laughs] There's also this funny thing that because this is an area where the Court doesn't have very much precedent other than the precedents they have recently written. I feel like they're using it a little bit as a blank slate. Like, you see that, Bruen is definitely doing that. It's like, “We're going to do rights better than we've done them before.” Kavanaugh has this opinion where he says, “I never liked the tiers of scrutiny. Well, I'm not going to get rid of them everywhere. Let's not do them here.” So, I do think there's just a sense in which they all recognize this is an area where they are the first-movers, they're trying to make the doctrine, and--
Dan: And they're all trying to influence what comes after.
Will: Yeah. Maybe it's healthy that they're all trying to take that-- they're just, taking that project a little more seriously, maybe than an area that's already thick with doctrine.
Dan: Yeah. Okay, so should we plow through some of these mini [crosstalk] opinions?
Will: Okay. Should we also grade them like seminar papers? I saw a blog post where Harvard law professor wanted to do that.
Dan: We can, but then you'd give everybody an A+.
Will: No, I-- Well, okay.
Dan: On the air, you would.
Will: [laughs] Not everybody.
Dan: You're very nice to them on air. Don't you think?
Will: We use numbers at Chicago to grade them.
Dan: Okay. Everybody would get like a 167.8 or whatever the--
Will: That's a bad grade then.
Dan: Is it? Okay, I don't know. I'm not supposed to know this.
Will: All right. Justice Sotomayor likes the opinion, doesn't like Bruen. [chuckles]
Dan: Okay. Yes. So, she concurs, joined by Justice Kagan and she doesn't like Bruen, but she does think that treating it as precedent, the court incorrectly applied it here.
Will: Yeah. And the dissent is wrong.
Dan: Yeah.
Will: Okay.
Dan: And her approach, she seems to want to paint what the court is doing as a more flexible inquiry into history, whereas some of the other Justices are going to try to make it look a little bit more rigorous. Is that fair?
Will: I guess so, yeah. I mean, she certainly emphasizes.
Dan: The court's interpretation, permits a historical inquiry calibrated to reveal something useful and transferable to the present day, while the dissent would make the historical inquiry so exacting as to be useless.
Will: Yeah. I'm not sure the others really disagree with that, but, yes, definitely, she's trying to spin this as.
Dan: Yeah. Do you have anything else to say about that one?
Will: Nope.
Dan: Okay. Justice Gorsuch's separate opinion. What here? So first, he's going to emphasize that point we already talked about that this is a facial challenge.
Will: Yeah.
Dan: Okay. And then what else is he trying to accomplish here? He seems to be trying to defend the categorical approach in Bruen as the necessary implication of being an originalist and following the Framers choices, etc., etc.
Will: Yeah, I think he's leaning into-- there was this point that Justice Scalia made in Heller, that part of the reason that really set history and policy up as opposites saying something like, “Everybody else wants to do balancing, everybody else wants to do reasonable things. But the whole point is to figure out the framers of the amendment were reasonable, not what we think is reasonable.” So that because the Second Amendment was codified by the people and they believed it was important to the preservation of life and liberty, that question is no longer on the table. We have no authority to question that judgment. As Judges charged with respecting the people's directions in the constitution, directions that are “trapped in amber,” our only lawful role is to apply them in the cases that come before us.
And the quote is a quote from the majority opinion about how the applications of the principles are not trapped in amber. So, yeah, I think it's trying to emphasize the other half. Justice Sotomayor says, “Look, this is really flexible and takes account of reasonable things.” Justice Gorsuch says, “Well, yeah, but it's not that flexible. The fundamental principles are the same.”
Dan: And he explicitly draws a connection to confrontation clause jurisprudence, which is interesting. Another area that Justice Scalia cared a lot about, where he made a big push for this idea that courts today shouldn't get to make exceptions to the confrontation clause, just based on when they think policy really demands an exception.
Will: Right. That's definitely a theme for Justice Gorsuch. It's not up to us decide that we like these rights. We just got to enforce them. And then I think the facial challenge thing, the other move he makes interesting is, I guess, to try to justify the decision not to answer a bunch more questions. “So, we only decided it's constitutional as applied, we don't decide this, we don't decide this, we don't decide this.” And normally, I think, you see judges do that in a tone of prudence, like, it's just not prudent for us to resolve all those things.
And Justice Gorsuch, his gloss on that is, “We do not resolve any of those questions and perhaps others like them, because we cannot Article III of the Constitution vest in this Court the power to decide only the actual case before us, not abstractions, etc.,etc.,” which maybe is just a little bit of Gorsuchesque like separation of powers rhetoric, but I don't know, again, in the world where the opinion is being reported as the weak kneed, faint hearted originalists versus the real originalists, I think Justice Gorsuch is trying to say real originalism still conclude only resolving the question presented.
Dan: Yeah, I did find this opinion did have a little bit of that Justice Gorsuch kind of separation of powers type preachiness.
Will: Yeah.
Dan: So, this one was fine. I wasn't sure if it contributed a huge amount.
Will: I liked the Gorsuch opinion in substance, but I think it might have been the least necessary concurrence of all the concurrences.
Dan: You liked it in that you agreed with it.
Will: Yeah, I like that rhetoric.
Dan: Yeah, I liked, some of it can be okay. And then Justice Kavanaugh. So, I mean, maybe part of what's going on here is Justice Thomas is dissenting, so all the other originalist, newbie originalist Justices feel like, “Oh, gosh, I got to really justify what I'm doing here.”
Will: Yeah. I mean, certainly I've seen the point that Justice Thomas wrote Bruen, and it's the most longest serving and maybe most prominently identified originalist Justice on the court. And so, if the author of Bruen, who is the most prominent originalist in the court, says, “This is wrong,” you're, “Wait a minute, they're not being real originalist, radars going off.” And so, all the Justices who've recently identified as originalists now need to account for themselves.
Dan: So, Justice Kavanaugh offers an opinion that is about constitutional methodology, says, “I had this concurring opinion to review the proper rules of text, history and precedent in constitutional interpretation.”
Will: That's a big topic.
Dan: Yeah, pretty big topic. And he starts at the beginning. “The American people established an enduring American constitution.” And he explains to us that sometimes the Constitution is really clear. He has this really long paragraph where he has many, many examples from the Constitution where the language is fairly clear. A House elected every two years. Senators serve six-year terms. Two senators per state. States equal suffrage in the Senate may not be changed without states consent. Two thirds House vote to expelled member of the House. And just keeps going and going and going.
These says, “These are clear, but some parts of the Constitution are not,” as he puts it, “Broadly worded or vague.” And he says, “Well, we don't read those to be absolute protections, to be absolute prohibitions on any kind of regulation. We don't do absolutist interpretation. Instead, we recognize these rights are not unlimited. And instead, our job is to kind of figure out exactly where those limits are.” And that's sort of question that's at issue in this case.
Will: And then he sets up this kind of dichotomy. This, I think, was the thing that most drove my colleague’s crazy at the lunch table. But he says, “Generally speaking, without precedent, there are really only two potential answers to the questions of how to determine exceptions to broadly worded constitutional rights, history or policy? I pick history over policy because it's more objective and we've been using.” Do you buy that? Is that a false binary?
Dan: Text is not clear.
Will: Yep.
Dan: The choice would become just doing whatever you want or doing what history says.
Will: I guess. I don't know does policy have to be doing whatever you want? I mean, that's part of the problem.
Dan: Yeah, I guess I want to know-- he says, “The policy approach rests on the philosophical or policy dispositions of the individual judge.” So, I think that is doing whatever you want.
Will: Yeah, you have to follow your own disposition. Presumably, if you're a utilitarian, you can't just decide to be a nonutilitarian in this case.
Dan: Well. [chuckles] Okay, you're parsing it a little thin here. I mean, basically, you get to choose your own disposition. And then maybe there's a whole range of other things, which is reasoning by analogy from other cases that are not squarely controlling. Isn't there just a whole sense of the common law method?
Will: Right. [crosstalk]
Dan: There is something between those two things.
Will: Somebody who had a methodology called common law constitutionalism might say the whole conceit of Anglo-American law is that there is something that's like lawmaking, even the absence of in new circumstances, even in the absence of precedent.
Dan: Yeah. When a common law court confronted with a new fact pattern, it doesn't just say, “Well, we either can do the thing that we've always done, and if that isn't available, then we just get to make up, do whatever we want.”
Will: Right.
Dan: No. They would say, “No, let's read some cases. Let's try to see if we can distill something somehow.”
Will: I guess Justice Kavanaugh would still say, “Ultimately, when you boil down what's going on there, the judge is either really leaning on the history, they're really leaning on, ‘Well, this is how we've done it before,’” with room for some analogy, or, “This is how I think we should do it.” And so, you still have to figure out what the bottom, like, are you a Posner common law judge, or are you an Easterbrook common law judge or whoever. I don't know. There's also purpose. It's a little confusing to me. At sometimes we think, “Oh, the text is ambiguous, let's look to the broader purpose of the provision as a way to resolve the ambiguity.” And I couldn't tell if for Kavanaugh--
Dan: Yeah.
Will: --that's just read into text. He said, “By text he means originalism and so that includes the original purpose or whether purpose just kind of washed out somewhere. “
Dan: Yeah.
Will: You could also talk about deference to legislatures. Now, again, maybe that's a nonstarter because these are individual rights cases and we just take it for granted that we're not going to have deference to legislatures. But that would be another sometimes traditional move when you're in the ambiguous space.
Dan: But he says when you have a vague provision, text doesn't answer the question, then you got to do history because it's better than policy.
Will: Yeah. And it's more objective.
Dan: Yes. And I feel like something he's been trying to do. He seems to try to want to boil down some of what he sees as what the basic approaches the court has taken and dumb it down is the wrong word, but maybe simplify it a little bit.
Will: Boiled down is good, I think.
Dan: Yeah, boiled down. He's done this with stare decisis, that’s where the court talks about stare decisis a certain way and then in Ramos and in later cases, including today, he says, “Let just boil this down to three factors.”
Will: Actually, I really like this as a genre. You often see the concurrence it's like the nitpicking on a particular point or the one-pager. And I really like the 20-pager general methodological reflections that are more boiled down so not just endlessly open ended but are trying to lay out something more than just this particular case. And that's actually a useful enterprise to actually do some.
Dan: Well, you're a law professor, of course you think that.
Will: [laughs] Well, no. Some law professors are territorial. Some law professors would say, “The judges shouldn't do this, they shouldn't horn in on our territory.” [Dan laughs] Or they would say, “It doesn't have enough footnotes, it doesn't cite enough of the competing literature.” Some people criticizing Justice Kavanaugh's lit review footnote on the grounds that didn't cite enough people or a diverse enough array of people. I don't have any of those complaints.
Dan: You loved it.
Will: Yeah, I think it's a good genre. I also love the paragraph, page five. “Judges are like umpires,”
Dan: Yes.
Will: As the Chief Justice is aptly explained. And in a constitutional system that counts on independent judiciaries, judges must act like umpires. And to be an umpire, here's what they must do. It's a whole paragraph on how judges are umpires.
Dan: And nobody made him sneak in a little citation to confirmation hearings of John G. Roberts Jr to join the Supreme Court 2005.
Will: Well, I take it that's the first sentence, Judges are like umpires, as the chief justice aptly explained. [crosstalk]
Dan: Yeah. No, but I mean, he didn't have to actually put in a cite.
Will: [laughs] No. When you're a Supreme Court Justice, you get to decide.
Dan: It's just he's like-- you know when he said that, right?
Will: [laughs] Yeah. As he's aptly explained, I like that.
Dan: Do you think the Chief saw that and was happy about it or is a little sheepish about it?
Will: Why wouldn't he be happy about it?
Dan: I don't know. Just because it was one of these things that got blown up out of proportion. Like, it has been repeated so much.
Will: Yes, but it's mostly repeated in a mocking way.
Dan: Yes. Well, that's what I'm saying.
Will: And I feel like the Chief Justice actually believes it and thinks it is not worthy of mockery. And so, I feel like seeing somebody else in the court who also actually believes it, thinks it is not worthy of mockery and is willing to say it with a straight face. It's like revenge of the normie judges.
Dan: I told him at lunch that I liked that, and I gave him a reason that I think maybe hasn't been-- I don't know whether he would endorse. Hasn't been fully articulated.
Will: What's your reason?
Dan: In baseball, there actually is a fair amount of inconsistency umpire to umpire. But to some degree the players are okay with that and they live with that. One of the things, I mean, there's some Justices like Ángel Hernández, who are just like terrible umpires. He retired recently and everybody's happy about that. But beyond that, I think that the things that the players get really mad about is inconsistency umpire to umpire. Like intra-umpire inconsistency.
Will: Yeah.
Dan: If everybody knows this umpire a strike zone, that's a little too big.
Will: Yeah.
Dan: Okay, fair enough. But if their strike zone is changing, half inning to half inning, that's terrible.
Will: Right. And especially if it's inconsistent because they are just erratic, that's bad. They're a bad umpire. And if it's inconsistent because they are systematically employing different strike zones for one team than the other--
Dan: That’s also bad.
Will: [crosstalk] --that's worse. That's the worst possible thing. And that's part of the point of the analogy, is to capture that those are the cardinal sins of judging.
Dan: Yeah. Although I don't think the original analogy captured exactly my nuanced point.
Will: I like it. I bet he liked it.
Dan: Yeah. I don't think he gave me a definitive answer on that, but it's very politic. But we had a good lunch.
Will: Yeah, I like this. I like this spin.
Dan: And more to say about it. So, he really spends a lot of time talking about what different kinds of history could be useful. So pre-ratification history, obviously important, but then he starts talking about post-ratification history. So, when can you look at stuff that happens after constitutional provision becomes the law in order to figure out what they mean. And he says, “Well, the framers said we could do that. Madison said that we would liquidate the constitution. Chief Justice Marshall and McCulloch recognized that. And then Justice Scalia did that.”
Will: Yeah. He's got a whole Scalia string cite.
Dan: Yeah. “As leading actors and theorists in the earliest and latest chapters of the American constitutional story, Madison, Marshall, and Scalia made clear that courts should look to post-ratification history as well as pre-ratification history to interpret vague constitutional text.” And then lots of more string cites and so forth. And then finally, yeah, he gets to something that you flagged before stuff about tiers of scrutiny.
Will: Yeah. This is very interesting, because the black-letter law, especially in the lower courts on so much of constitutional rights, does revolve around the tiers of scrutiny. What level of scrutiny does this get? What's the government's justification? Is it narrowly tailored? In the early post-Heller literature, I felt like there were tons of articles in lower court cases about which level of scrutiny should be used in the Second Amendment and how it works. And it's interesting because the court explicitly in Bruen, and then here's Justice Kavanaugh again, is explicitly saying, “Well, we don't really want to do that, tiers of scrutiny enterprise here. We're not really sure it's been productive.”
Dan: Yeah, he seems to kind of almost mock it.
Will: Yeah. I mean, he says, “It's just a form of balancing. It has no basis in the constitution. We adopted it sort of by accident.” “To be clear, I am not suggesting that the court overrule cases where the court has applied those heightened-scrutiny tests. But I am challenging the notion that those tests are the ordinary approach to constitutional interpretation. And I am arguing against extending those tests to new areas, including the Second Amendment.”
Dan: And so far, it seems like a majority of the court is not interested in extending those tests. That sort of what Bruen stands for.
Will: Yeah.
Dan: Similarly, here, we're not going to see tiers of scrutiny here absent some change in personnel in the court.
Will: Yeah. So, I will say as much as it's a opinion, this is the part I'm least sure about, the anti-tiers of scrutiny part. Eugene Volokh made this point once that I think a lot of people may misunderstand what the tiers of scrutiny can accomplish. So, his point is something like, “The tiers of scrutiny are not really a test. They are a useful way for summarizing the court's case law that's happened so far.” Like, there's nothing in the tiers of scrutiny that tells you what's a compelling state interest. But if you've had a series of cases that say, free speech but not in the military or but not here, but yes here. The tiers of scrutiny are a useful way of collecting or describing the cases that have arisen so far. So, I'm sympathetic in the sense that-- [crosstalk]
Dan: A shorthand for a long series of--
Will: Yeah, a shorthand for a way of capturing the kinds of balancing the court has done. So now, maybe if the court doesn't believe in balancing, doesn't ever do any balancing he wouldn't-- [crosstalk]
Dan: I thought the objection was that you're not supposed to balance. You're supposed to be like, “Is this a right or is it not.”
Will: Right. But if you're going to have some exceptions and some means ends exceptions, I mean, if the court is going to say, “Well, disarming dangerous people is permissible, but the regulation can't go on for too long and has to have a sufficient finding of dangerousness, one could say that's like strict scrutiny. Disarming dangerous people is a compelling state interest, but you have to have an actual finding that they're dangerous, and the disarming has to be narrowly tailored to their dangerousness. That could be a useful way to describe the dangerous doctrine as it evolves.” So, I don't know that it's as bad as it seems.
Dan: Well, we will see if they become persuaded by that as time goes on. Yeah, it may be the case right now you've had a small handful of Second Amendment cases. Are they going to need a little bit more scaffolding to frame the doctrine 20 years from now, let's say we have one or two of these cases a term for the next couple decades.
Will: Well, my vote is that the court ought to just take one to two Second Amendment cases per term for a while just to give us enough-- Like, you can have 40 pages on methodology in Bruen, but it obviously doesn't necessarily send the message you want it to. I don't know if you have a prediction. I think they have some pending cert petitions that have been relisted, like about assault weapons bans, felon in possession bans, lots of different things. So, my vote would be the court should ought to grant one of those at the next conference. They've issued Rahimi. Now let's take up application of Rahimi to something. My guess is they won't do that. My guess is they--
Dan: My guess is we’ll see one of these every two to three years.
Will: Yeah. My guess is they like issue one, let it percolate, sort of, they issue Bruen, then they quickly see a circuit split and an opinion they really don't agree with applying Bruen, and they're like, “All right, we got to take it.” So, my guess is Rahimi will go out there, but then they'll see some stuff they don't like and they'll feel like they have to take one a couple of years from now.
Dan: Yeah, but obviously this one seemed to consume a fair amount of resources, so they may not want to do that every single term.
Will: It gets easier if you do it all the time, maybe.
Dan: Yeah, maybe everyone just fleshes out their unique approach and then they know what their approach is.
Will: Well, and you don't feel like this is the last time I'm going to get to speak of the Second Amendment.
Dan: Yeah. Okay. Gosh, we're still only part of the way through this one and we've got some other stuff we wanted to talk about. But we have a short concurrence by Justice Barrett, who stops to pause and identify the basic principles of originalism. And why is she doing that?
Will: It's important.
Dan: Maybe so, but--
Will: I assume it's just because she wanted an excuse to cite Keith Whittington and Steve Sachs.
Dan: [laughs] It’s in service of a point that she has made elsewhere, which is expressing some qualms about the use of post-ratification history.
Will: Yes. So, she wants to sharply divide, say, “The use of history around originalism.” Thats easy, that’s part of originalism. That’s not hard to justify if you’re an originalist. The use of post-enactment history requires some justification other than originalism simpliciter. And this feeds into some of the separate opinions she's written, including in the trademark case we didn't talk about.
Dan: We didn't get to Vidal v. Elster. She basically says, “You can't just look at tradition unmoored from original meaning.”
Will: Mostly has registered skepticism about doing that. Or at least you need a much clearer theory about why you'd be doing that.
Dan: Yeah. Can I ask you one question about that? So, do you remember CFPB v. Community Financial Services?
Will: Oh, yes.
Dan: We have a separate opinion in that case by Justice Kagan, and that one was joined by Justice Barrett that actually says, “Basically making the additional point that sort of suggesting that the court should have looked at history post-dated the founding.” Basically, look at a longer tradition of history to determine that the CFPB's funding structure was constitutional, rather than just focus on founding era.
Will: I don't think the court said they should. I think her opinion said they could. Said like, “Here's an additional reason.”
Dan: Yes, but why would you write the separate opinion? At least the separate opinion presupposes that it is relevant and helpful, correct? It's not necessarily a criticism, but--
Will: And you're going to say, so why does Justice Barrett join that? How does that match with her? So, page two of Rahimi. She says, “To be sure, post-enactment history can be an important tool. For example, it can reinforce our understanding of the Constitution’s original meaning, liquidate ambiguous constitutional provisions; provide persuasive evidence of the original meaning, and if stare decisis applies control the outcome.” I take it that CFPB would at least count as reinforcing our understanding of the constitution's original meaning and liquidating ambiguous constitutional provisions to the extent it's ambiguous. And there was a cite to the liquidation federalist paper in there. All it does is reinforce your understanding, then you might still say, “Well, it's not very necessary.” Like it's relevant but it's--
Dan: But it still just makes you wonder why did she want to join that opinion? Because there was just something weird going on in that case where that was the four-Justice concurrence.
Will: Yes.
Dan: So, it suggested that some significant subset of the majority thought that stuff that the court didn't talk about was relevant and helpful.
Will: Yes.
Dan: And then in other places, she said, “Well, why are you looking at all this stuff,” that is after the fact. So, I don't know. I'm not saying that they're squarely inconsistent. Obviously, she seems to be approaching these issues with a certain amount of nuance.
Will: Remember, she also wrote a separate opinion in Bruen where she said something similar saying, “Look, all the original history, that's easy. The other stuff's probably relevant as part of liquidation, but there are a lot of questions about how liquidation works, so we haven't really had to answer yet, and I want to put those on the table.” So, I think she's working towards something like original history is totally relevant because originalism, other stuff is probably relevant under something like liquidation or maybe some other Burkean theory, but it's definitely not as relevant and actually raises a bunch of tricky questions about doing it carefully. So she's both okay with it, or in cases where it's overwhelming and all points in one direction, that's pretty easy to use it, but use with caution, and then still other stuff is irrelevant. But unlike Justice Kavanaugh, her style doesn't appear to be to give us a 20-page sort of seminar paper.
Dan: Okay, we're going to run out of time to talk about other stuff, given how long this one is taking. But you want to say anything quickly about Justice Jackson's concurrence?
Will: Justice Jackson says, “It's not them, it's us.”
Dan: Yeah, basically, Bruen has created a mess, lower courts before Bruen had figured out a way to deal with stuff like this. The rule of law, capitalized, is suffering because Bruen has undermined stability and promoted inconsistency.
Will: I think there is an insight here that I agree with, which is that one of the primary effects of Bruen was to scramble the consensus that the lower courts had worked out on how to apply Heller and McDonald. I think that was intentional, and Bruen was more or less explicit. That's part of why they were doing it. I don't think that's as bad as she does, but it certainly has costs. And I guess, obviously, if you think the lower court consensus was pretty sensible, then scrambling it is very bad because it's both chaotic and it's going to lead to worse outcomes. If the lower court consensus was overly deferential, then scrambling it is a necessary evil. But that's one of the reasons why I think the Justices who want to scramble it ought to be doing more to take more cases to help us work it out.
Dan: Keep scrambling those eggs.
Will: But I don't agree that meanwhile the Rule of Law, capital r, capital l, suffers. That seems like a little kind of thing, only Justice Gorsuch will write.
Dan: [laughs]Yeah, it seemed a little bit over the top to me. Okay. And then a fairly lengthy dissent by Justice Thomas. Maybe that's redundant.
Will: So, Thomas is very long. Interestingly, I don't read it. Tell me if you disagree. So, I don't read it to disagree that much with the majority at the level of methodology, actually. And I mean, I ultimately read it to say, “Look, I just think these things are even more disanalogous and they don't quite support the same principle.” He even seems to agree with the majority that there is a dangerousness principle, that dangerousness is a legitimate purpose for arms regulation. He seems to disagree mostly about the scope of the burden. These previous regulations did not involve making it a crime for you to have any guns for a long period of time.
Dan: You had to post bond, etc.
Will: And I will say that's actually, I mean, I think he's right about that. That's the thing that made the Rahimi a hard case. And then the essay that Rob and I wrote about it, that's actually the thing we thought was the hardest question was, “Given that there's a dangerousness principle, and given what the history of dangerousness regulation looked like, how far can we go now? Can you have these really lengthy categorical denials of the right to keep bear arms of dangerous people?” It was not argued very well or briefed very well, but I actually think in a way, it's a narrow point of disagreement and it's the weakest point in the majority opinions, so it's a pretty good Thomas dissent, even if I would have come out the other way.
Dan: Yeah. And I wouldn't call this necessarily a blistering dissent from him.
Will: I think the fact that he's the author of Bruen has caused people to index on that somewhat, because then you see the remark of, “Well, how can the majority opinion be consistent with Bruen if the author of Bruen thinks it's not?” Which I don't agree with as an approach to texts generally, but especially Supreme Court opinions. But I see the point.
Dan: Yeah. Can I ask you a question about this? At the end of his opinion, page 31 says, “This case is not about whether states can disarm people who threaten others. States have a ready mechanism for disarming anyone who uses a firearm to threaten physical violence: criminal prosecution. Most states, including Texas, classify aggravated assault as a felony, punishable by up to 20 years imprisonment.” All he's saying there, though, is that you can disarm people while they're imprisoned. That part of his opinion is not meaning to resolve anything about being able to disarm people based on convictions.
Will: Yes. I don't think he's making any claim that after 20 years of imprisonment, he could also disarm them. Although presumably, he'd be okay with life imprisonment as well.
Dan: [laughs] But not temporary imprisonment followed by life deprivation of firearms.
Will: Well, creative doesn't always include [unintelligible [00:49:29].
Dan: Yeah, sometimes it does though.
Will: That's confusing to me. Well, we got through 100 pages in less than 100 minutes, so we should call it a win.
Dan: Yeah, we were going to talk about two more cases. I'm going to have to leave before long, so we might have to audible. Do we want to talk about tax or criminal sentencing and juries?
Will: You tell me.
Dan: Well, why don't we just briefly talk about the jury case and then see if we have any time left over for tax.
Will: Okay.
Dan: So, the jury case at Erlinger v. United States, and this is one case in a long line of cases spilling out of Apprendi v. New Jersey a case from 24 years ago about what kinds of things that legislatures can say. Sometimes legislatures want to say, if a judge finds fact x, the person gets more punishment. And the question is, when is that constitutional? Or when are those facts? When do they have to be found by a jury rather than by a judge?
Will: Yeah.
Dan: And in a fairly long line of cases, the court has said that most of those facts do have to be found by a jury, that basically those are so called sentencing factors are really functionally indistinguishable from elements of crimes and elements of crimes or facts that have to be found by a jury, proven beyond a reasonable doubt that make criminal punishment possible. But one exception to that is from a case immediately before Apprendi called Almendarez-Torres where the courts had said, “Well, the mere fact that someone has a prior conviction for a recidivist sentencing statute, that's not a fact that has to be found by a jury.” You don't have to go to the jury and say, “Hey, can you just find, as a matter of fact, that this defendant was also previously convicted of a crime?”
Will: Yeah. And why not?
Dan: Well--
Will: Do we just think it's obvious, like there's never a case where it's unclear whether you had a conviction?
Dan: I think that's probably part of the way that's driving it. But also, I think it's just the way the timing worked out, because that case is before Apprendi, where Apprendi acknowledges the big principle, and then there has been some push to reconsider it. And Justice Thomas, who was in the five-Justice majority in that case, has since said, “He was wrong and wants to reconsider it.” And there are many, many petitions filed every year trying to reconsider it. I remember when I was clerking, learning about this, and there's basically just a set template for one of these cert rule memos where you just write, “Petitioner argues, overrule Almendarez-Torres. I recommend deny, oft denied.”
Will: At some point, there was even some separate writing about this, where, Justice Thomas said, “I want to take one of these cases because, after all, it would now come out differently because I've changed my mind. And so, we should take it.” And then, Justice Stevens, I think, wrote an opinion concurring in the denial of certiorari, that said, “I also think Almendarez-Torres is wrong, and if we took it, I would vote to overrule it, [laughs] but I don't want to take it,” which is technically, I guess, how cert works. As the court can say, “If I were to ask this question, I would be obligated to conclude x, but I don't want to, and therefore, I refuse to ask it.” But that's always seem fishy to me.
Dan: Yeah, I've written a little bit about this particular issue, and I actually do think it's stupid in the sense that for that thing and for the Almendarez-Torres issue in particular, why should we care whether a jury is going to find the mere fact that you have a prior conviction. It's just going to be something a matter of looking at a court record. It's not a situation where the jury is going to have any particular expertise. They're not bringing any community values. If anything, it might actually be unproductive, because then the jury has to be aware that you have to a prior conviction or else we have to do a bifurcated procedure. But so, the argument I made in a paper with Will Ortman, which is that this would matter in a world where juries were aware of the sentencing consequences of their factual findings, which they were at one point in Anglo-American legal history, is people just new juries would just know, this is a, gosh, this is a felony. This makes the defendant eligible for capital punishment. And then they would bring that knowledge to bear in determining whether to find the defendant guilty or not. But we have now systematically deprived them of that information.
And so now you have these battles about what facts they need to find in a way that just-- I think, actually is relatively low stakes. I think the specific dispute here may be slightly higher stakes for reasons we can talk about. But just the pure Almendarez-Torres, do you have a prior conviction on the record or not?
Will: And just to check, though, does it ever happen that we have a case of disputed identity? Like, yes, that Juan Lopez was convicted of this crime, but I am a different Juan Lopez.
Dan: I'm sure that happens. I don't have a case like that.
Will: The idea is we think the jury doesn't know anymore whether--
Dan: I mean, maybe there's a small, small, small number of cases where there would be some dispute about who the defendant was with some prior conviction and the reasonable doubt standard would make a difference. I think my sense is it's going to be vanishingly small, universe of cases maybe. We have some listeners who will say, “Oh, this happens every day in my practice.” There is all cases where there's other people who have convictions and similar names, but it seems less likely to me.
Will: All right, so technically, the issue here is, I guess, the question of whether two crimes were committed on different occasions.
Dan: Yeah. So, slightly more--
Will: Facty?
Dan: Nuanced and facty and then just does this, does the official court transcript reflect that this person has a conviction or not?
Will: Yeah. Okay. But the court says that's the kind of thing that has to go to a jury and-- Okay.
Dan: And it's opinion by Justice Gorsuch in a mode that he's familiar with and that we're familiar with, which is defend the core criminal procedure rights that are really reflected in the constitutional text. Justice Scalia did it. Confrontation Clause, Sixth Amendment, jury trial, all those classic Justice Scalia-type crim pro issues.
Will: I feel like Justice Scalia had 10 of these opinions over the course of his career, and Justice Gorsuch has already logged 20.
Dan: Yeah. [laughs]
Will: But, yes. Okay, so we have Justice Gorsuch saying that we have the Chief saying, reminder, a lot of these could be harmless error. So, this doesn't really matter.
Dan: Yeah. Which is, I think, actually a big deal in the sense that if all of these errors are harmless, then I think what that means in practice is that courts could just routinely say, “Well, we're not going to give this to the jury, but we're not worried about it because it'll be harmless on appeal, because there's no doubt here.”
Will: That's interesting. I wonder if they can do that.
Dan: Why not? This was something that Justice Scalia said in a case called Sullivan v. Louisiana, which is there-- he says that, “An error in the reasonable doubt instruction given to a jury, that can never be harmless error, because if it was, you could just have directed verdicts for the government in criminal cases, and then the appellate court could just say, “Well, there was enough evidence of guilt so, therefore error was harmless.”
Will: So, when the error is harmless, they're not concluding that there's no violation, and trial courts take an oath to hold the constitution. So, I think if a trial court said, “As a matter of practice, I'm going to consistently violate the constitution because of the harmless error standard, I suspect, I mean, maybe they just never put it that way, but I suspect they'd be subject to a writ of mandamus, judicial discipline. There might be a way in which that would abuse your discretion to just do that for that reason. So, there are several more separate opinions, but I feel like the most interesting one that we should talk about before we run at the clock is Justice Jackson, maybe the person who shows up, not where you would have put her on your bingo card.
Dan: Yeah. So, it turns out that for people that were hoping she was going to come in and join the narrow coalition that had been defending the Apprendi rights, these cases have been pretty closely divided the court, at various points over the last couple decades. There's been a number of 5-4 cases as personnel has swapped in and out. This one, for whatever reason, is not quite as closely divided, but she comes out swinging and actually she thinks Apprendi is wrong. And I had a question, which is, I was doing the math, she was clerking for Justice Breyer, who wrote a dissent in Apprendi. She was clerking for Justice Breyer the term Apprendi came out.
Will: Really?
Dan: And so, 25% chance, I guess, that she was the initial drafter of that dissent. Now, it made me wonder, is that experience shaping her strong views on this issue? Was she the law clerk who wrote it? And that got her really invested in the issue? What do you think?
Will: Certainly, a plausible hypothesis. It was either her or I guess, Erin Glenn Busby, Marc Isserles or Tim Wu. So, certainly plausible.
Dan: I didn’t know she and Tim Wu were co-clerks.
Will: She does have a theme in her opinions, I feel like, of standing up for the lower courts and lower court judges, from Munsingwear to Bruen. So, it also fits their broader judicial philosophy.
Dan: And she was a district court judge.
Will: Yeah.
Dan: Who--
Will: So was Justice Sotomayor, I think.
Dan: Yeah. Fair.
Will: I was surprised to see her take that position, even though, as you say, Justice Breyer had that position too. So, it's not like democratic appointees have never been dissenters in this line of cases, but she's the first new one to take out that position and to take 29 pages of taking on Apprendi. That’s very interesting. It’s better than my theory. So, one of the scholars she cites as an Apprendi critic is a legal genius by the name of Jonathan Mitchell, who was, I think, original job talk paper, Apprendi's Domain in the Supreme Court Law Review was one of the early originalist critiques of the Apprendi line of cases. So, I thought maybe she just converted to Mitchellism and this was going to be the first of many hardcore originalist Jackson opinions. But your theory makes more sense than mine.
Dan: Yeah.
Will: There's a case that I didn't see cited anywhere in here, Oregon v. Ice. Have you ever heard of that case?
Dan: Yep. Yeah, that's the consec-- I was wondering about that too. That's whether a judge or a jury has to find the fact that makes a sentence run concurrently or consecutively. The legislature said if you find sentences run concurrently. So that means that you can be serving both sentences at the same time. So, you're like double dipping. Unless you find x fact, then the judge shall order them to be run, consecutively, which like effectively doubles the sentence. You have to do one, and then you finish that one and then do the other one.
Will: And for some reason I never understood, despite reading that opinion many times, that kind of fact does not be found by a jury. Even if it's the same kind of fact.
Dan: Yeah.
Will: The same kind of fact that you're a really bad guy or whatever. That would have to be found by a jury if were increasing your sentence by just adding five years to it. If we increase your sentence by making them run consecutively, then suddenly it's different for some reason. No mention of it anywhere.
Dan: Yeah. That is a little puzzling. I was wondering about that-- [crosstalk]
Will: Has that ceased to become a precedent? Have we recognized that opinion just makes no sense and we're all hoping people will forget about it?
Dan: I mean, I guess, but why would the dissenters not want to use it. [crosstalk]
Will: Not [laughs] point out. Maybe because it's a really embarrassing decision, if anybody [laughs] crosstalk]
Dan: But it's a Justice Ginsburg opinion, and she's obviously not with us anymore. But Justice Alito was in the majority on that one.
Will: Mm-hmm. It was my term.
Dan: Oh, okay. Yeah. And the Chief was in joined the dissent in that case, even though the Chief has not been uniformly on the Apprendi team, maybe there it was stare decisis logic of the precedent.
Will: The dissent was the only position in the case that made any sense.
Dan: Yeah.
Will: And I don't think he would’ve joined in the opinion that made no sense.
Dan: I mean, someone could have written, could have just said, “Apprendi is not a thing.” Someone could just reject Apprendi, and then it's easy. But Justice Ginsburg was on the Apprendi team I think in most other ways.
Will: Right. You could write an opinion that said, “I would overrule all these precedents, and therefore I joined this side.” That's fine. That would make sense. But the opinions that were written in Oregon were precise. We were not like that.
Dan: Justice Ginsburg made a mess of sentencing law in general because she's the key vote in Booker, that splits the difference between the violation majority that says, “The United States sentencing guidelines are unconstitutional,” and then this other majority that has this weird cobbled together fix that kind of saves 90% of them. I mean, the logical thing would have been for her to write the opinion [laughs] and then have different people join it, but instead, she doesn't write at all and joins two different opinions.
Will: Yes.
Dan: But this is not about her.
Will: Some would call her notorious.
Dan: Okay. More to say about that. I think we have run out the clock on the tax case.
Will: All right. That's probably for the best. One of my colleagues was terrified the Supreme Court was going to destroy the tax system. And then after this opinion, I asked him if he was relieved that the court, 7-2 did not destroy the tax system. And he was not, because there were still four votes to destroy the tax system in various ways. And so, he's terrified that the taxation of debt instruments is going to be messed up in some way that I still don't understand.
Dan: That sounds bad.
Will: Since I don't understand it, maybe we would destroy the tax system if we were to try to talk about it.
Dan: That's quite possible.
Will: Tax was my worst class in law school.
Dan: Oh, yeah? You got a B?
Will: I did.
Dan: The sting still remains.
Will: Well, then in practice, I worked on a lot of tax cases with some success. And we used to joke that my comparative advantage was I did not understand tax law any better than your average Fifth Circuit law clerk.
Dan: So that's probably true.
Will: If we could put it in terms that I understood, then we had a chance of persuading somebody.
Dan: Well, I got a B+ in constitutional theory, so do with that what you will.
Will: Explains a lot.
Dan: So, they tell me.
Will: -about what's wrong with constitutional theory?
Dan: Or with me?
Will: I was trying to be nice, Dan.
Dan: One of the few pieces of feedback we get is that maybe you try even too hard to be nice.
Will: Well, our reviews have become overrun with Dan Epps’s fans, so I'm trying to suck up a little bit, [Dan laughs] get them back on my side.
Dan: Yeah, there's still some pushback in the reviews. Still some hate here and there.
Will: Oh, yeah.
Dan: Some people mad that you refuse to take the ethics stuff seriously. Some people think I'm acting in bad faith. Some people think I'm not acting with candor. Okay, this is why we should just not be a podcast about that stuff. I guess we have to talk about it once in a while.
Will: I did also. There was one that was, “Enough. After so many episodes on Supreme Court ethics scandals, I am throwing in the towel on this podcast. It is maddening to hear Baude devote his impressive mental firepower to so much evasive equivocating. His every sentence on the topic is mealy-mouthed BS, and yet, incredibly, he believes this makes him a reasonable, meticulous, or charitable thinker. Just terrible.” Five stars. [Dan laughs] As long as you put five stars, you can call me whatever names you want.
Dan: Yeah, and then somebody else says I'm bullying you over your imminently reasonable position.
Will: I do feel bullied.
Dan: Do you?
Will: No.
Dan: Yeah, I don't think so.
Will: Not at all.
Dan: Okay.
Will: You're extremely nonbullying, Dan. I appreciate that about you.
Dan: You feel no threat. No one can lay a finger on you because you're so confident and self-assured in your own views.
Will: No, I just trust you to always engage reasonably on the merits and in a non-ad homonym, non-bullying way. This podcast is like my safe space.
Dan: [laughs] Yeah. I mean, and you don't have many of those in the left-wing academy, do you?
Will: No, basically none. The University of Chicago is better than most but--
Dan: Still, you don't have a whole team of conservative buddies there to hang out with on the faculty. You've just got a bunch of people. That are –
Will: Smart and reasonable.
Dan: Yeah, reasonable. I didn't give you hard time about-- you didn't get any of that Leonard Leo money, right? Josh Blackman is getting a whole endowed chair from the Leonard Leo controlled foundation. And where's the Leonard Leo endowed University of Chicago Constitutional Law Institute or whatever?
Will: Indeed. This is where it's revealed that I'm very bad at being a certain kind of law professor.
Dan: No, but this is where I reveal that the conservative legal movement and its dark money funders are engaged in three dimensional, four-dimensional, five-dimensional chess because by not funding you, you look independent of them, and then you can sanitize their ideas.
Will: But what's in it for me on that theory?
Dan: Well, I mean, nothing. I mean, you're just doing your thing. [Will chuckles] You're just a-- Oh, gosh, what was the title of that episode from--
Will: Useful Idiot?
Dan: [laughs] Yeah. And you don't even get the payout, you know?
Will: Yeah, that does sound like an idiot.
Dan: I would turn into more of a yes man on the show for the right price, if Leonard Leo is listening.
Will: Well, but apparently, he's just going to give you the money and not me.
Dan: [chuckles]Yeah, but you could live with that. You're going to say what you're going to say anyways, right? Because you actually believe all this stuff.
Will: I do. I believe all the stuff I say. And yet we still have the people accusing us of me of being in, whatever, blinkered, bad faith. So it seems.
Dan: They're going to say that anyways, why don't you just get the bribes?
Will: They've never been offered.
Dan: Okay.
Will: I would say I would take them, but [Dan laughs] never been offered.
Dan: [laughs] Yeah, it's like the kind of thing where it's like, “I didn't want to come to the party, but it would have been nice to be asked, right?”
Will: I mean, yeah. Look, I think it's very important for people in legal academia to avoid corruption of many forms. But I do feel sometimes like I'm kind of a chump somehow. [laughs]
Dan: Your career is going okay, I think. Okay, shall you lead us out?
Will: So, thanks, everybody, for listening. Thanks to the Constitutional Law Institute, and no thanks to Leonard Leo for sponsoring all of our endeavors. As always, please continue to rate and review the show, especially as we're in our busy season in June. We'd love to find a broader audience for our Supreme Court coverage.
Dan: So, website, dividedargument.com for transcripts, store.dividedargument.com for merchandise. You can always send us an email, some of which we respond to, but we always read and pay attention to at pod@dividedargument.com and you can leave us a voicemail at 314-649-3790. And if there's a long delay between this and our next episode, it's because we have been legally deprived of our right to podcast in a way that is inconsistent with our nation's history and traditions.
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