Dan and Will catch up on what the Court's been up to other than dealing with the Texas abortion law, including cert grants addressing the EPA's power to regulate carbon emissions, a couple of summary reversals, and some other shadow-docket action.
Dan and Will catch up on what the Court's been up to other than dealing with the Texas abortion law, including cert grants addressing the EPA's power to regulate carbon emissions, a couple of summary reversals, and some other shadow-docket action.
Dan: [00:00:19] Welcome to Divided Argument, an unscheduled unpredictable Supreme Court Podcast. I'm Dan Epps,
Will: [00:00:25] And I'm Will Baude.
Dan: [00:00:26] This is our second episode recorded after a long hiatus. We did one catching people up on what's been going on in the Texas abortion cases, women's health, and US v. Texas. In this episode, we're going to try to catch you up on some other stuff that's been happening at the court that isn't about abortion.
Why did we take so long off? Maybe it was because we were chastened by listener feedback. What happened?
Will: [00:00:54] Boy, we've said a lot of spicy and controversial things in this podcast, but I would not have predicted that the most controversial, most scolded thing we would say was in front of a live studio audience where neither you nor I could think of any important or famous Supreme Court justices from the state of Kentucky, a verifying state.
Dan: [00:01:15] Yeah, it turns out there are a lot. It's pretty, pretty well-known ones, which I should have known because I'm actually-- believe it or not, at that time, I was in the middle of listening to an audiobook, a really good audiobook, Separate, which is about Plessy v. Ferguson. The part I was in was a mount, Justice John Marshall Harlan’s childhood in Kentucky and in Kentucky politics. But podcasting live is hard, you don't always have everything in your head, people screw things up. So, I shared it on that one. We got a lot of flak about not knowing Brandeis from various people, most distinguished of which is Kannon Shanmugam, Supreme Court litigator, give us a little bit of hard time. He's from Kansas, but maybe Kentucky is in the same general part of the world, you feel some loyalty. Many people said, “Oh, gosh, how did you not know this? There's the Louisville School of Law, there's the Brandeis School of Law.” To which I respond, “Brandeis University is in Massachusetts, come on,” right?
Will: [00:02:13] [laughs] True. The question of where Justice is from is actually often a little complicated. [crosstalk]
Dan: [00:02:21] Yeah. With major historical figures, people claim them, like different places claim them.
Will: [00:02:27] Abe Lincoln, many people associate with Illinois, the Land of Lincoln, but he was also born and then raised in Kentucky, Indiana. I forgot, I think it's Kentucky that claims him as Lincoln's birthplace, and Indiana says, “Well, we're Lincoln's boyhood home,” or maybe it's the other way around.
Dan: [00:02:45] That's like the license plates for North Carolina and Ohio, I think it is, where it's like they've both claimed the Wright Brothers. I think it's Ohio is birthplace of aviation and North Carolina is first in flight where the Kitty Hawk is.
Will: [00:03:00] My colleague, Daniel Hemel, had a comment.
Dan: [00:03:03] About Kentucky?
Will: [00:03:04] About Brandeis--[crosstalk]
Dan: [00:03:05] Oh, okay. I miss this one.
Will: [00:03:07] He said on Twitter, “If one were to rate states by quality-adjusted Supreme Court justices per capita, I think Kentucky might actually be the winner.”
Dan: [00:03:17] So, it's an advanced sabermetrics-
Will: [00:03:20] Yeah.
Dan: [00:03:20] [crosstalk] -wasn't heretofore the--
Will: [00:03:21] That is not only--
Dan: [00:03:22] Those are some pretty good ones and there are some others. I'm forgetting. I've already forgotten.
Will: [00:03:28] Well, I was thinking about Massachusetts, which has just a story and Justice Curtis--
Dan: [00:03:33] Benjamin Curtis.
Will: [00:03:35] Stephen Breyer.
Dan: [00:03:37] Does he count? He was the first circuit judge in Boston. I don't know if he's born in Massachusetts. I don’t know where he is from. Where is he from?
Will: [00:03:46] I should know this. I don't know where he was born. I think he was born in California maybe, possible. The Supreme Court website lists the Justices by what state they were appointed from, so like where they were. So, they list him as Massachusetts.
Dan: [00:03:59] Do they list [crosstalk] Kagan as DC?
Will: [00:04:02] Let's see. They list her as Massachusetts.
Dan: [00:04:05] Okay. My guess is she was still domiciled in Massachusetts even though she was a resident of DC because she was serving as SGN at the time. She thought she might return to Harvard.
Will: [00:04:16] But they put Brandeis as Massachusetts also under that theory.
Dan: [00:04:20] Okay. So, not only do we make the mistake, the Supreme Court's website makes the mistake. I didn't know that. Okay. So, critics take that.
Will: [00:04:30] Yeah. You can make a strong claim for Indiana or Colorado. Maybe, yeah, it's an interesting question.
Dan: [00:04:38] Look, even Homer nods, and we're not Homer, we're a lot worse than that, even among the lowly fields in which we roam, so it's going to happen again, be charitable and recognize that if we're unscheduled and unpredictable, if you're not nice to us, we've got other things we could do.
Anything else? One other fun piece of email we got was from Devin Weinberg who passed along, [chuckles] this is silly, a clip from a discussion with Justice Sotomayor when she failed to pick up on a Ghostbusters reference. Repeatedly asked whom she might call if there’s something strange in your neighborhood, and further if something were spectral, Sotomayor was stumped. Should that be disqualifying, Supreme Court Justice?
Will: [00:05:28] [chuckles] I don't know. I'm writing a new article and I put in a reference to Roadrunner and Wile E. Coyote, and I give it to a student research assistant, and the student commented on that part, "I do not know what this means, perhaps I'm too young."
Dan: [00:05:43] Oh, that's totally unacceptable. The conversation was with Stephen Colbert, by the way. She should have been prepared for some jokes. You've got to bring out your joke A-game. Wile E. Coyote thing is totally indefensible, because all the classic Looney Tunes are on HBO Max. You subscribed to that?
Will: [00:06:01] Uh, no.
Dan: [00:06:03] You should. And they're great for kids. I've been watching them with my kids. They love them.
Will: [00:06:08] You know what they--[crosstalk]
Dan: [00:06:07] 80 years old some of them and even older, and they still hold up.
Will: [00:06:13] I think the fault is mine. The iron rule of professors making pop cultural references is you're always even more uncool and out of date than you think you are. So, I used to try to make Western references on con law. Nothing.
Dan: [00:06:26] Yeah. One thing I'm pleased about is, I do some Law & Order references in my crim pro classes. I play the music and stuff. We're going to have to phase that out, but now the main Law & Order show, the only one's any good, is coming back. Did you hear about this?
Will: [00:06:42] I heard about that.
Dan: [00:06:43] Yeah, that is big. I don't like the other shows. I don't think they work. But the main one is great.
Will: [00:06:48] And your students are still not going to watch it.
Dan: [00:06:52] No, but they're going to be aware of it. It's going to be out there in the culture. That's all I-- [crosstalk]
Will: [00:06:56] Don't hold your breath.
Dan: [00:06:59] I still get laughs with the music and stuff. So, I don’t need to hold my breath. What else? Anything else from the mailbox that we should talk about?
Will: [00:07:08] Nothing urgent, I think. I've got a lot of requests that we'll deal with over the course of the next season, I think.
Dan: [00:07:14] Yeah. All right. So, let's actually catch up on what the court has been doing. We don't have any merits opinions yet, but we do have two per curiam summary reversals off of the shadow docket, both decided in mid-October, and both involving qualified immunity and lawsuits against police officers, and both in favor of the officers. This is a throwback. The court has these summary reversals where it takes a petition and basically says, “It's so clear that the lower court erred here, that we can just skip the grant argument briefing stage and just write the opinion.” Two of its favorite topics for summary reversals are granted habeas corpus under AEDPA, and qualified immunity, failure to issue qualified immunity to police officers for a little-- And you’ve criticized them and not particularly recently, like years ago, for not having a good explanation for why they choose these kinds of cases to summarily reverse and not other kinds of cases, right?
Will: [00:08:24] Yes. One of the one of the original concerns I had when I first started writing about the shadow docket was, I understand why the court picks up the AEDPA cases, because there's a federal statute, making it hard to review these cases that it seemed like the lower courts for nullifying. It's harder to justify what's going on in qualified immunity where there is no federal statute. The court just sort of invented one, but the court doesn't care what I think, that's increasingly clear.
Dan: [00:08:52] Yeah. We got to City of Tahlequah v. Rollice. In this case, the police got a call from a woman saying, “My ex-husband is refusing to leave my home.” They go there, they find him in the garage. He approaches them wielding a hammer, and they shoot and kill him. And 10th Circuit had said, “Excessive force suit against the officers could go forward.” Supreme Court reverses and says, “Officers plainly did not violate any clearly established law.” Per curiam, no dissents. 10th Circuit is not a crazy, out there, lefty appellate court. What do you think is going on here?
Will: [00:09:38] The court, I don't think anything special is going on here. When there's a state on top qualified immunity petition, that is when the officers say, “We're [unintelligible [00:09:45] qualified immunity,” and go to the Supreme Court, that always gets a close look. There's a special red light in the court that warns them that somewhere an officer might have to be held personally liable, and that's still true.
Dan: [00:09:58] Yeah, it's surprising. It suggests, the court, everyone out there in the world, particularly in the last year or so, has been talking about qualified immunity, how bad it is, how it needs to be reformed. Even some conversations in Congress that looked like they might go somewhere, but obviously haven't. Supreme Court is not paying attention. They don't care. They're just going to do--[crosstalk]
Will: [00:10:21] Yeah. I was talking about qualified immunity before it was cool but I do think there has been a little bit of wishful thinking. Some justices, Justice Sotomayor, Justice Thomas, have said that the qualified immunity doctrine has gone wrong. The court did have a case last term where it summarily reversed-- did not the grant of qualified immunity in a Texas prison case that hadn't done in a long time. Some people tried to read into that, “The court is sending a sign. It's trying to walk back qualified immunity.” Nope. I've had some lower court judges tell me that that's what they think is going on and their courts have gotten a little bit more careful about qualified immunity, because I think that's what the Supreme Court wants.
Dan: [00:11:02] Now the court is saying, "No, actually, go back to doing it the old way," right?
Will: [00:11:07] Well, I think it's a mistake to read too much into this either way. This qualified immunity summary, it looks a lot like the other quality to be summary. It doesn't go out of its way to make the standard any harder. It just is a normal qualified immunity summary of as you would have expected five years ago. So, yeah, I don't think anything's changed dramatically.
Dan: [00:11:27] Yeah. But no dissent from Justice Sotomayor saying like, “Why are we doing this?” Or, “Why are we picking these cases?” Everybody either joins or at least doesn't say that they don't join. Another one like that, similar, decided same day, per curiam, no dissents, Rivas-Villegas v. Cortesluna. In this case, similar setup. That woman calls and says, “My boyfriend is acting aggressive. He is going to hurt us. Me and my two daughters are barricaded ourselves in a room.” Police show up. Luckily, they don't shoot anybody, but they show up and they arrest the boyfriend. He sues and says, “The officer impermissibly placed his knee on my back during the arrest. This was excessive force.” Ninth Circuit says no qualified immunity. The Supreme Court reverses says, “There's no prior case that gave the officer fair notice that his conduct was unlawful.”
Will: [00:12:31] Yeah, again very similar. The Ninth Circuit's maybe even less surprising. And here there was a dissent by Ninth Circuit, Judge Collins, and that's often a posture. The Ninth Circuit denies qualified immunity, a conservative represents, that's a roster that often gets the court a close look. There's one little legal issue here that got a little bit of attention, that may be worth just mentioning, which is the Ninth Circuit partly relied upon its own Ninth Circuit precedent to say it was clearly established law, just something that you cannot do under the equivalent inquiry, [unintelligible [00:13:03] habeas because the statute expressly says it's got to be precedent clearly established by the Supreme Court. The court adds a little, like, “Well, even assuming that controlling circuit precedent counts,” which is something they've done before back in--[crosstalk]
Dan: [00:13:16] Yeah. They've done this, I feel like a dozen times at this point. I keep forgetting that this hasn't actually been resolved yet.
Will: [00:13:24] Yeah. It just reminded people. Some people saw this for the first time, but it reminded people that it's actually an open question. Well, that's not true. The court claims it's an open question, whether or not Circuit precedent counts for clearly established law, and obviously, some members of them think it doesn't. [crosstalk]
Dan: [00:13:41] Yeah. It's kind of crazy if that were the rule, that only Supreme Court precedent can clearly establish it right, because if you think about it how fair notice works in other contexts, like with criminal law, if you've violated a criminal statute, I'm in Missouri, I violate a criminal statute, there's Eighth Circuit precedent saying it doesn't cover your conduct. There's a circuit split. Ultimately, goes to Supreme Court, Supreme Court says, “Eighth Circuit is wrong. We agree with the Seventh Circuit in the case that upheld Baude’s conviction. And now Epps, his conviction is, we're going to overturn the Eighth Circuit.” That's fine. I would not be able to complain I didn't [unintelligible 00:14:18]notice, even though I was relying on the Eighth Circuit precedent.
Will: [00:14:21] Although the Supreme Court has already said the opposite is true in the qualified immunity case. There are several cases where you sue somebody for unconstitutional action, the Eleventh Circuit says that their circuit court upholds it, but other circuits would have said it was unconstitutional. You go to the Supreme Court, and they say, “Yes, this was unconstitutional, but since some other courts thought it was okay, qualified immunity.”
Dan: [00:14:42] Yeah. But that's even crazier, that's the opposite. In the criminal context, I would get convicted, even though there was an Eighth Circuit decision, they said, “This thing isn't covered.” For criminal purposes, that counts like due process fair notice. That's nuts. I know you don't like qualified immunity, but even if you do, doesn't that seem crazy?
Will: [00:15:03] Well, this is part of it. One of my concerns about qualified immunity is that it's so different from the kinds of fair notice requirements we apply other places. So, it seems weird to me that we would hold government officials who are supposed to be trained in the law, to a lower standard than criminal defendants, but we do. Here's what I’ll say, on the one hand, Camreta v. Greene, a case from-- I don't know, almost 10 years ago now? Seems to say that Circuit Court precedent can count for qualified immunity purposes. It's a really weird posture where the government official loses on the constitutional issue in the Ninth Circuit, but wins in the qualified immunity. The Ninth Circuit says, “You acted unconstitutionally, but don't worry, you don't have to pay.” And then he tries to seek review, even though he won, because he wants the constitutional holding overturned. The court says that he can, that he has standing because of the threat that the Ninth Circuit opinion poses to him in clearly establishing the law. The premise that opinion is that a circuit court opinion can create enough of a legal liability for you that you have standing to get overturned. So, it must be the circuit opinion-- [crosstalk]
Dan: [00:16:07] But it counts in a way that's like favorable to defendants, but maybe not, [chuckles] [crosstalk] favorable to plaintiffs.
Will: [00:16:13] Yeah. On the other hand, and here's where I see where the court is coming from. It's a little weird-- so suppose the Ninth Circuit developed some weird doctrine like, over the course of 30 years about some constitutional right, and the Supreme Court just never paid attention to it. Lots of people get held liable for violating clearly established law in the Ninth Circuit. And then eventually it goes up to the Supreme Court, which says, “No, no, actually the Ninth Circuit is wrong. This is not a thing.” It's a little weird to say that during that 30-year period, you violated clearly established law, when it turned out, there was no-- it was wrongly clearly established. I mean, you could in theory have that. You could have laws clearly established, but wrong, but I understand why the courts reluctant to acknowledge that category, because it sounds strange.
Dan: [00:16:58] That happens all the time. There are people win tort suits against other people, and down the road, like a state Supreme Court will say actually, they got the wrong view of the common law, but it's just the way law works. Sometimes in the criminal context, sometimes you can get retrospective relief in that situation, but not always, sort of depends.
Will: [00:17:19] Yeah, it does. But qualified immunity feels a little different, because the idea is like, it's not like a normal tort suit. We only impose liability on you when it supposed to be so obvious, the court says the only the plainly incompetent or those who knowingly violate the law. [crosstalk]
Dan: [00:17:32] Yeah. But if let's say the Ninth Circuit has said like, “You may not do X, Y and Z when A, B, and C are true, and officer does exactly that. I mean, why doesn't that qualify?
Will: [00:17:44] Well, the point is, you're not plainly incompetent, if actually-- you were right, you were allowed to do this. It was the Ninth Circuit that was incompetent. I just want to put it as--
Dan: [00:17:52] I would prefer that police officers follow [unintelligible 00:17:58] press, and sure, they can litigate it down the road if they need to, and try to get it revisited, but the rest of us have to do that. The rest of us have to can't just be, like, “Okay, well, Supreme Court hasn't conclusively ruled on this specific subsection of the statute. Therefore, I can violate with impunity.”
Will: [00:18:19] The rest of us should be so lucky as to have qualified immunity. the premise of the court's behavior here, including all the summarizes that, like the courts of appeals clearly cannot be trusted, and are denying qualified immunity too often. That's the court thing, so I don't agree, those are the things. So, if they think that, you can imagine why they'd be reluctant to let the circuits establish their own clearly established law.
Dan [00:18:40]: Yeah. It's just weird to think that because it's not like the circuit courts are not staffed for the most part. There's Biden appointees, but they're not staffed with mostly really aggressive plaintiff's lawyers. There's a lot of former prosecutors on the bench, and so why would it be the case that the circuit courts are like gleefully subjecting officers to suit?
Will: [00:19:05] I think the truth is that the Supreme Court likes judicial supremacy when it's them doing it, when other judges do it. It seems wrong to them. That makes just human, I guess.
Dan: [00:19:14] Yeah, like, I want to decide everything.
Will: [00:19:17] We really need a new label. It's like just Supreme Court supremacy. We're the only ones who get to do it.
Dan: [00:19:22] Yeah. And so we know what's better than qualified immunity, absolute judicial immunity, [chuckles] which they've also given themselves and their friends on the bench. So, yeah, it's good work, if you can get it to be a Supreme Court justice get to decide everything, don't necessarily have to let anybody else decide anything. But we're still doing business as usual. We're still doing summary reversals in seemingly inconsequential, qualified immunity cases that has seemed to have no bigger implications for other cases. They're not establishing any important legal principle here. They're just saying, “We think it's really important that you not deny qualified immunity to this defendant. Even though this defendant, this police officer is surely not going to have to pay the judgment himself anyways, because they're always indemnified.”
Will: [00:20:10] Don't let anybody ever tell you the Supreme Court does not engage in error correction.
Dan: [00:20:15] Yep.
Will: [00:20:17] So, they do.
Dan: [00:20:18] The end of October, we got some CERT grants, and a set of related cases about involving the EPA, and the EPAs efforts to limit carbon emissions. Here we have a little bit of a complicated procedural posture, which is that the Obama administration had come up with this Clean Power Plan. The Supreme Court towards the very end of the Obama administration, state its operation on a five to four ruling. This was back when-- this is before Justice Scalia's death. Am I remembering that correctly?
Will: [00:20:57] It's the last vote he cast before his death, I believe.
Dan: [00:21:00] Okay. This was the old school lineup where you five to four, five conservatives, including Justices Kennedy, Justice Scalia, and then the four liberals, including Justice Ginsburg, so five to four decision, staying this Clean Power Plan. Is it injunction? Was it a stay? Or, I think it was an injunction [crosstalk] something precedented. What? It was like an unprecedented thing the court had not done before.
Will: [00:21:29] At the time.
Dan: [00:21:30] Yeah, at the time.
Will: [00:21:31] Stopping a law before-- Yeah, exactly.
Dan: [00:21:34] Yeah. Before the DC Circuit had even weighed in.
Will: [00:21:36] Yeah. Now we do this all the time.
Dan: [00:21:39] Ultimately the Trump administration comes into power, and that they put the brakes on everything. They ended up resending the Obama rule, putting in place their own set of rules, the Affordable Clean Energy Rule. And now we're having whiplash, the Biden administration is in place. But what happened is the DC Circuit, which is one of the more democratic friendly circuits because of a number of appointments, President Obama was able to make, held that the Trump administration's rescission of the Obama era Clean Power Plan was unlawful, violate administrative law principles. And so now, various cases were petitioned from that ruling, and now we're up at the Supreme Court to consider that, and ultimately, to consider the EPA’s authority, exactly how much authority they have to regulate carbon emissions. In particular, whether they can tell like a coal plant, basically say, “We need to start moving towards alternate sources of energy generation in order to reduce emissions.”
Will: [00:22:51] This dynamic reminds me a little bit of the back and forth over the DACA and DAPA programs, the immigration relief. It's like, Obama administration does something, controversial legal challenges, maybe the supreme court thinks it's unlawful, borderline unlawful, doesn't fully issue an opinion, then the Trump administration tries to undo it. But it turns out, maybe that's also unlawful, that’s catch 22 where it's like, but everybody's unlawful. It really makes you-- [crosstalk]
Dan: [00:23:24] I think that this is, unfortunately, maybe like our future, which is that the more we have really significant things, policies being enacted through administrative rules, and that seems increasingly likely in a world where Congress is just plagued by interminable gridlock. The more we're going to see this whiplash, as there's changes in administration. The new administration puts the brakes on and try something different. But everything, both enacting a rule and taking a rule, changing rule, they don't have to follow administrative law principles, and you can say that you didn't consider the right things, or whatever. I don't have a solution to all this.
Will: [00:24:06] I do wonder if it's going to be an idiosyncratic Obama-Trump effect. The late Obama administration just started doing some carefully lawyered, plausibly justifiable, but big deal things.
Dan: [00:24:19] Aggressive, yeah.
Will: [00:24:20] They were aggressive. And then the Trump administration was maybe less carefully lawyered a lot of the time, especially on the agency side. Even if there might have been a waste on do it, they may not have been investing quite as much in doing it the right way. It might just be an artifact of that particular-- We’ll see.
Dan: [00:24:40] Maybe that the by Biden administration will do things that are less aggressive, maybe that whatever successful Republican administration will have better lawyering. More generally, I do think that we're going to see lots of-- it seems it's inevitable that we're going to see lots more efforts at administrative policymaking in a world where Congress just doesn't seem to be able to do much.
Will: [00:25:03] Yes, I was wondering this, and maybe there's another thing, the readers will yell at me for forgetting an obvious example. What's the last major executive policy you can think of that didn't immediately get interlined by one side of the other in court?
Dan: [00:25:19] When you say a policy, like--
Will: [00:25:23] Clean Power Plan--
Dan: [00:25:23] If something that was issued with as a rule, because there's all sorts of things that you could just describe as like a policy that are not--[crosstalk]
Will: [00:25:31] Like what?
Dan: [00:25:31] -rules.
Will: [00:25:33] I don't know, like eviction moratorium, any of these things that are just like, “The White House just did X, it's a big deal, and we all understand that it's just--” [crosstalk]
Dan: [00:25:41] What about the vaccine mandate for federal employees and contractors [crosstalk] joined?
Will: [00:25:46] I don't think that’s-- [crosstalk] issued it.
Dan: [00:25:48] Oh, they [crosstalk] issued it.
Will: [00:25:49] Maybe for contractors, it has. The one for large employers is still not out, and [crosstalk] be enjoined the day is out.
Dan: [00:25:55] That will get enjoined.
Will: [00:25:57] Maybe it is, like Operation Warp Speed or something, like just getting the vaccines done or something.
Dan: [00:26:04] Yeah, but it is a problem is that we're increasingly polarized with everything. Litigation become extremely partisan. You’ve got state AGs on both sides of issues, depending on whether they're red states or blue states. I don't know if this if great.
Will: [00:26:27] Yeah, it doesn't help that. Congress doesn't pass major legislation anymore. So, every time there's any problem, though, White House has to just try to shoehorn old statutes into it. Congress could pass a statute dealing with climate change, they should.
Dan: [00:26:48] This is related to a thing that, that I say in an op-ed about just noting this, this grant, this set of grants that hopefully will be out by the time this episode is out, which is that, like, maybe our structure, or our constitutional structure, at least as we presently understand it, it's just really not very well suited to crises. Like this, things that require bold, decisive and coordinated action, like the pandemic, like climate change. If our whole constitutional system seems to be really kind of biased in favor of inaction, it's hard to do stuff. It's easy to not do stuff, and it's hard to do stuff. Powers distributed, it's divided between the federal and state government, you need to do stuff, you need both houses of Congress, you need the President not to veto, you need things to get through the courts. I wonder whether there's some areas where that's just really not a great system for getting done the kinds of things that need to get done.
Will: [00:27:44] What would be better system?
Dan: [00:27:46] I don't know. A parliamentary system, maybe that doesn't-- Our system basically seems to be designed to have at least like two years of gridlock for every four-year presidential term as President because of the staggered elections, and because historical tendency for Congress to change hands, or at least one house of Congress to change hands in the off-year elections, you do end up with a lot of gridlock. There's some comparativists that have written about Latin America, where countries that have had similar presidential systems, the argument is they're more likely to suffer from coups because the public gets sort of dissatisfied with the gridlock, and they want a strong man to come in and fix things. Parliamentary systems work a little differently. As long as you have a mandate to govern, you get to govern. And then when you lose the mandate, you call an election.
Will: [00:28:45] Would federalism also be a solution? If we were more consistent it about saying, “Yeah, the [unintelligible [00:28:49] gridlocked, but the states, California and Massachusetts, New York, you can govern yourself--” [crosstalk]
Dan: [00:28:56] [crosstalk] -some things, I think it's not a solution to the kinds of problems, I'm flagging, which are ones where we need coordinated action. Having a bunch of 50 different solutions to the pandemic, I think, is not ideal. In a world where we have open borders between states.
Will: [00:29:16] Or, maybe that was the problem. Maybe we should have let the states close their borders.
Dan: [00:29:20] Maybe.
Will: [00:29:21] [crosstalk]
Dan: [00:29:22] Maybe we should all succeed and just have 50 different countries. In a world where we have a national economy, we have freedom of travel, it's hard to just say, like, “Okay, Texas and Alabama, you can go nuts and let the pandemic run wild. And Massachusetts, don't.” It's very much a second best. Climate change, yeah, sure, we can have 50 different solutions, but that doesn't actually address the problem if the problem has carbon emissions, which are the carbon emissions that Texas and West Virginia and places like that emit have consequences, not just for the rest of the country, but for the rest of the world.
Will: [00:30:00] Climate change or the pandemic seems sort of like the opposite, though. The speed required to address the pandemic was incredibly fast. The climate change is part of the problem is, I mean, better to address 10 years ago than now, but part of the bigger problem is consistency. Like you'd need to have a policy--
Dan: [00:30:14] But I think that’s just makes a harder problem. I looked at the way we handled the pandemic. I thought it was like a microcosm of why it's basically impossible within the US system to come up with meaningful solutions to climate change. It's just, first of all, [crosstalk] it was polarized, anything that becomes takes on partisan valence. State A does X, other state wants to do opposite of X. It made me very pessimistic, more so than. I mean, I was pessimistic, but more so.
Will: [00:30:47] You think a parliamentary system could get through like a carbon tax or--?
Dan: [00:30:51] I do.
Will: [00:30:52] In our country, in our politics?
Dan: [00:30:54] Well, it's hard to say, like, our country, but with a totally different system of government. But I do. The question would be, would a future administration, future government repeal it? And that would be easier as well. It's easier to do stuff, but also easier to undo stuff in a parliamentary system, I think. I do think that there are other countries that maybe don't fragment power quite as much as we do that seem to be able to act a little bit more unilaterally. Those countries are also maybe not as polarized to the crazy extent as we are, at least on the-- [crosstalk]
Will: [00:31:29] Yeah, part of which is the cause and which is the effect. If we didn’t-- [chuckles]
Dan: [00:31:35] I have all the people we have here.
Will: [00:31:38] Should we talk about the law issue, in this case, though?
Dan: [00:31:42] Yeah, I guess we should, and we're supposed to talk about law sometimes.
Will: [00:31:45] Up to you.
Dan: [00:31:46] No, go for it.
Will: [00:31:48] This one got filing grants CERT in this. The question is whether or not the Clean Air Act, I think 42 U.S.C. 7411(d), but maybe there's some other section I'm missing. Basically, whether or not that provision, which is a general, like you can establish standards for air pollutants, whether that allows the EPA to regulate carbon, right?
Dan: [00:32:11] Yes. Well, whether it allows them to regulate it in this way, I think maybe is slightly more accurate. Let me pull up--
Will: [00:32:20] Not just as a direct emission, but in terms of the broader decarbonization requirements.
Dan: [00:32:27] Specifically, this is one provision of the Clean Air Act. Question is, does this specific provision allow the EPA to issue rules that require pretty significant things, like that are not just like this power plant needs to limited emissions, like this way, by imposing better filters. I don't even know. I don't know anything about it. But rules that are like, “No, you need to have way fewer coal plants, more natural gas,” that kind of big picture rules. I don't think it's whether you can ever regulate it in any way. It's like, can you use this provision as a hook, for this broader set of regulations?
Will: [00:32:27] It seemed to me this already has gotten a lot of attention, I think, for these three levels. Obviously, it's just an important policy question. Can we regulate? Can the EPA have this kind of Clean Power Plan? The questions also include the legal question about whether the administration's position, or the old administration's position violates the so-called major questions doctrine, which is, I guess, it's a statutory interpretation principle, that when an agency has really broad authority, even though we normally defer to the agencies about things. If it's really important, then suddenly we want for the agency anymore.
Dan: [00:33:48] Or, we're going to assume that Congress would have really been clear with us. And be like, “No, no, we really want EPA to be able to do this big stuff.”
Will: [00:33:57] Right. Congress says, “The EPA can do stuff that he thinks is necessary and appropriate.” But doesn't mean stuff that's a really, really big deal. Unless Congress [crosstalk] say so.
Dan: [00:34:06] We can't outlaw hamburgers.
Will: [00:34:09] Yeah. Right.
Dan: [00:34:10] That kind of thing.
Will: [00:34:11] Outlawing regulated tobacco under the Food and Drug Administration [crosstalk] example of this.
Dan: [00:34:16] Yes. A real-life example.
Will: [00:34:19] And then, there's also kicking around a question of whether the statute violates another litigation doctrine. That is, if you don't have a major questions approach to it, if you say, “Yeah, when Congress says necessary and appropriate, that can be even the Clean Power Plan,” that is that a sign that the statute is just a limitless delegation.
Dan: [00:34:36] Yeah. There's three layers. There's like, “Does the statute let them do this?” And then in the backdrop is, “Would Congress have allowed this?” This major question’s doctrine does seriously, like, can we plausibly-- would Congress have done that? That's a guide to set your interpretation. And then below that is the deeper issue of, like, “If Congress had actually done that, would that be a constitutional problem under the so-called nondelegation doctrine?”
Will: [00:35:04] Am I right to think of the major questions doctrine as the constitutional avoidance applied to the nondelegation doctrine? That is, if Congress said, “Boy, EPA, you just solve climate change?” That would raise a serious nondelegation question, and so we’ll assume--[crosstalk]
Dan: [00:35:19] I don't think it's [crosstalk] I think that you could believe in the major questions doctrine without believing in nondelegation. You can think that Congress could say, “No, we really want.” First of all, Congress could certainly say, “We want the FDA to regulate tobacco.” Congress can say that no problem. The problem the reason why you might say, “No, you can't do that isn't because you think it'd be unconstitutional for the FDA to regulate tobacco. It's because you think that that's the kind of thing then the broader context, like Congress wouldn't have done that. They wouldn't have accidentally or sub silentio done that. They would have, like, given the way, the role of tobacco in the economy and all these other ways in which it's regulated, we wouldn't have just let the FDA regulated.
Will: [00:36:01] It'sa question whether Congress could say, “The FDA can regulate tobacco? Or, is the question whether Congress could say, “The FDA can decide when the FDA can regulate tobacco?” Isn't the point that we at least want Congress to be forced to choose? Yes or no. Rather than delegate to the FDA, the question of whether to regulate tobacco?
Dan: [00:36:19] Yeah, maybe. My point is just that, you could take the Posner-Vermeule view that, which is that nondelegation doesn't matter. It's not a problem. You could still say, but if you're going to delegate that broadly, please really say so loudly.
Will: [00:36:39] I think so. Are there anybody, in fact, takes that view? I've seen the major questions doctrine invoked by like the conservative members of the court. I think Justice Kavanaugh invoked it in connection with the nondelegation doctrine recently, in a separate opinion. Is there anybody? Does Nick Bagley believe in the major questions doctrine, despite not believing the nondelegation doctrine? I guess, Nick, if you're listening, your thoughts?
Dan: [00:37:02] Ican't speak for him. Maybe in practice, that's what's going on. Although, I don't know if we've actually put the rubber to the road on that. And where are you at on that, is that your view?
Will: [00:37:17] I guess I'm more sympathetic to the nondelegation doctrine than I am to the major questions doctrine, I think.
Dan: [00:37:25] The nondelegation doctrine, just being that like, the legislature gets to legislate and the executive gets to do executive stuff. But the legislature can't tell the executive make things that look like legislative rules beyond a certain point.
Will: [00:37:39] Yeah. [crosstalk]
Dan: [00:37:39] That’s the dumb down version.
Will: [00:37:41] Everybody agrees that the legislature does the legislative stuff, the executive does executive stuff. The question is whether some laws are so open ended, that they are de facto grants of legislative power, even though they purport not to be. And if so, where to draw the line. I'm currently most sympathetic to Justice Scalia's old position, which is, “Yes, there is a line, but it's probably impossible for legislative to draw it. It's effectively not justiciable, but I could be persuaded.”
Dan: [00:38:06] It can be the case that every time the executive branch issue some kind of rules, like, “Now it's the legislative branch and the you have to go back to Congress.” Even in just ordinary exercise of the executive power, you have to be able to issue rules and guidance and how you're going to consider things and things like that.
Will: [00:38:27] I think you can. I don't know if you have to. You could imagine a world where the executive can do stuff, but once you get to issuing a rule that that would go too far. I mean, you could imagine that world, that'd be very radical and I don't think that's required. But, yeah, I think it's a deep line drawing problem. I started looking at the history because I'm going to probably have to write something about these various historical debates of the nondelegation doctrine.
Dan: [00:38:48] You’re going to have to. No one is going to make you up.
Will: [00:38:50] Well, I agreed to go to a conference where that's my assigned topics.
Dan: [00:38:55] Which is, you have to write a symposium paper.
Will: [00:38:57] Yeah, I think so.
Dan: [00:38:58] Okay. It's always a mistake.
Will: [00:39:01] Is it?
[crosstalk]
Dan: [00:39:03] Only if you were going to write it anyways. You shouldn't agree to write something you don't want to write.
Will: [00:39:09] I want to write.
Dan: [00:39:10] Okay. Well, then it's fine.
Will: [00:39:12] I have both do and don't. I want to be forced to write it.
Dan: [00:39:16] Okay. Well, tell me how you feel about it when you're actually writing it and see whether regret it or not.
Will: [00:39:22] I will.
Dan: [00:39:24] So, that is lurking in the background. I think there were some initial commentary about, like, “Oh, gosh, the Supreme Court is going to wade into nondelegation.” I looked at the petitions, I think, they're not going to address that head on. I ran that by administrative law guru, and listener of this show, my colleague, Ron Levin, and in his view, was the same, that this was going to be resolved on more administrative law grounds, and you're not going to head on grapple with the non-delegation stuff, but it could be lurking there in the background.
Will: [00:39:54] Yeah, that seems right to me. I would not be surprised if there was even a majority opinion that invokes the major questions doctrine and said it was connected to the nondelegation doctrine.
Dan: [00:40:06] But maybe a separate opinion.
Will: [00:40:08] Yeah.
Dan: [00:40:08] Like a Gorsuch opinion that says like, “I would have rested this on the Constitution,” or something like that.
Will: [00:40:14] I think it's Kavanaugh opinion that says, “This is what statute says. This would be a big thing to smuggle in the statute. We don't have to write.” One of the reasons that we interpret statutes in the skeptical fashion is the underlying concern about delegation of power, which we've remarked on the past, that kind of thing.
Dan: [00:40:31] To say that, but not--
Will: [00:40:34] Yeah.
Dan: [00:40:35] Yeah, that seems plausible. It also seems like the challengers, not the EPA, the challengers are going to win here. It just seems like, I don't think it's a foregone conclusion, but it just given the grant, given that some people-- there's reason to say that the grant is a little premature. The Biden administration has already said, “We're going to back off this Trump thing. We're going to issue our own rules, just put the brakes on, just hold up.” And the court is like, “No, let's go ahead and do it.” That suggests to me that it's reasonably likely the court will almost overwhelmingly likely that the court will say, “EPA, let's just resolve this now. EPA, you can't do the kind of stuff you're trying to do here under the Clean Air Act.”
Will: [00:41:20] Yeah. I agree.
Dan: [00:41:21] This generation shifting where you're ordering, you're saying, like, “You have to move power generation from this kind of power source to this other kind of power source.”
Will: [00:41:31] Yeah, I agree. I think, big deal for climate policy, of course, but probably not a big deal for administrative law in the end.
Dan: [00:41:39] Depending what they say about major questions. You could imagine an opinion that frames that in a way that expands its reach, or suggests more things are major than--
Will: [00:41:54] Yes. [crosstalk] My memory is that Justice Kavanaugh, on the DC Circuit had had some interesting and thoughtful and maybe somewhat aggressive readings to the major questions doctrine. I would not be surprised to see some of that now becomes Supreme Court doctrine, that could be.
Dan: [00:42:09] So, you think like, maybe he'll get the majority, or maybe he'll be writing separately and present his views?
Will: [00:42:15] Yeah.
Dan: [00:42:20] Okay. All right. Anything else that's been happening at the court? One other thing, last time of so many weeks ago, we recorded we talked about the Justices pushing back on criticism and criticism about the shadow docket. I think that's continued since we last recorded. I don't remember who the most recent one was. I don’t remember if it's Alito or Barrett? I think it was Alito, because I think we talked about Barrett, pushed back on that since we last recorded. It reinforces my impression of the Justices are aware that they're getting criticized.
Will: [00:42:57] Yeah. Well, one of the many things in general is that the courts practices on the shadow docket have gotten a little more regular and thoughtful in general, in the past five years. They write more opinions than they used to, they written more dissents than they used to. They sometimes make a little bit of explanation effort to explain what they're doing. In a way, they weren't nearly as self-conscious 5, 10 years ago, but now, we're also seeing the same pushback and shouldn’t [crosstalk] call the shadow docket and all that.
Dan: [00:43:27] In the shadow docket order refusing to halt the operation of the Texas abortion law SB8 eight, the night it had already gone into effect. The court issued a very brief-- it's not really an opinion, but textual order. I think that's a place where the court could have been a little bit more forthcoming, had a procurement opinion, responding to the dissents, sort of say, like, “Here's what's going on,” or, “Here's what we think.” I think that could have been better.
Will: [00:43:59] It could be. But I will say even what they did, it's something that they would not have done 10 years ago. 10 years ago, they [crosstalk] mattered.
Dan: [00:44:04] Even they would have just said denied and that's--
Will: [00:44:06] They would have said denied, there would have been no sentences saying ex parte, what these things were.
Dan: [00:44:11] Okay. Speaking of shadow docket-y stuff, I think these falls within the jurisdiction we've got. We got a little bit of other stuff on the orders list, just to briefly talk about. We had a couple of dissents from denial that are worth talking about. One statement that maybe is worth talking about.
Will: [00:44:34] So, we're doing Maine first?
Dan: [00:44:36] Oh, yeah. I forgot about that one. We got to talk about that, too. So, yeah, tell us about that.
Will: [00:44:40] On October 29, the Supreme Court had a request to enjoin Maine's new vaccine requirement for healthcare workers, which does not contain a provision for religious objectors. The court said not to enjoin it, let it go into fact, with six -three opinion. So, three justices dissented, Justice Gorsuch, Justice Thomas and Justice Alito, on the Free Exercise grounds that will be familiar to people who followed the courts free exercise jurisprudence, especially in COVID cases--
Dan: [00:45:13] Just not arguing that the court that a state can't have a vaccine mandate, but arguing that not having a religious exemption is a free exercise violation.
Will: [00:45:22] If you make some other objections, so they make various medical objections. There's always this question about what counts. But if you make various-- given the kinds of exceptions they do make, that they also make an exception for religion.
Dan: [00:45:34] Yeah. But we don't have the other-- with Gorsuch, in December, we don't have the other two Trump Justices. You have Justice Barrett, who concurs joined by Justice Kavanaugh, very short statement.
Will: [00:45:46] Yes. And Justice Barrett’s concurrence, I think one of the most interesting things to come on the shadow docket in a while. Justice Barrett says, “When we're asked to grant this kind of relief, one of the factors is likely to succeed on the merits. And that includes not just the merits merits, but the question of CERT worthiness because you're effectively asking us to intervene under the theory, this is something where you're later going to prevail, and so we should go for you now.” So, we should ask CERT worthiness.
Dan: [00:46:12] Which seems right just at the outset, I think that's--
Will: [00:46:14] That has to be right.
Dan: [00:46:15] Yeah.
Will: [00:46:16] She says, “Were the standard otherwise, then you could use the emergency docket to force the Court to give a merit’s preview in cases you'll be unlikely to take.” So, it seems right. And then she says, “In my view, this discretionary consideration counsels against a grant of extraordinary relief in this case, which is the first draft of the questions presented.” This is right, but it also exacerbates one of the things that people worry about the shadow docket. Anytime you're asking the court for one of these emergency injunctions, they're saying, “Even if we think your legal rights are totally being violated, we could just declined intervene, for the same reason, we could always just decline a grant cert even when a case is wrong.” On the one hand, the court regularly declines to grant cert when things are wrong and says, “Oh, we're not a court of error correction,” is that that sometimes they do grant cert, and they're court of error correction when they feel like it. So, this is making very clear that there's a one we feel like it exception to all requests for emergency relief on the shadow docket, which both seems right and troubling at the same time.
Dan: [00:47:14] Well, yeah, but it's not a when we feel like it in terms of granting emergency relief. It's like when we conclude that this, there's a standard, it's likelihood of success on the merits. And you're entitled to this relief, if you're likely to get your petition granted. The discretion is about the likely to granting the petition, not whether we give you the relief or not. If we're likely to grant the petition, argument you're entitled to relief. We're not likely to grant the petition, not a--[crosstalk]
Will: [00:47:39] But the Supreme Court that decides whether they're likely to grant the petition. And that decision is itself very discretionary. There are lots of circuit splits where the court says, “Eh, I just don't feel like granting it anyway.” And vice versa. Lots of non-circuit split, so the court says, “Well, I want to grant.” One of my favorite things--
Dan: [00:47:57] I mean, it's just the way it works. There's reasons to not like that.
Will: [00:48:02] No, I think it's completely correct, but it's also I'll just say this, that's the way it works and I'm not sure the court has always taken full advantage of its discretion in this area. But I think it's doing so more often. When Justice Barrett was Professor Barrett, she wrote a really interesting article about Stare Decisis and Certiorari, where she says, “Look, even if you think something like the Justice Thomas position, that there are a bunch of cases that you have to overrule, because they're clearly wrong as a Supreme Court Justice. Even if you think that, you can just use cert to dodge them.” You can just take a case where you'd say, “Wow, if I granted cert, I'd be required to do X. And I don't want to. Therefore, I won't grant cert.” Just examples, the classic examples of, legal tender is legal tender unconstitutional. It might be unconstitutional, technically, nobody wants to overturn it. And so if you're a hardcore originalist, you have it out, you just say like, “I refuse to grant cert, so I won't have to think about it.”
Dan: [00:48:59] And maybe that's actually a good argument for the discretion. Say, like, “This is why we shouldn't have mandatory peer review, because then it forces the reconsideration, merits reconsideration of issues that would be disruptive to read aside.”
Will: [00:49:14] Look [unintelligible 00:49:15] One thing that's very awkward, though, is that if you are a justice, who likes to trumpet your lack of discretion a lot on the merits, like Justice Thomas, and say, like, “Look, I'm just honored, I'm bound to do this. I can't use my policy views.” Then, now turns out you can. It turns out, in a particular way, but there's a place where actually, you do get to bring those views in, and so it complicates that narrative. Now, maybe that's good, and maybe now we just get to ask justices about their policy views, because we'll say, “Look.”
Dan: [00:49:44] The problem is that a subset can force the others to then decide the issue because it's four, only four needed to grant cert.
Will: [00:49:51] It's true. It's a little funny to think like, if justice Kavanaugh had joined the other side, if he'd said, “Well, I think this is cert worthy.” Then, this is where the practice of the courtesy fifth comes from. If there are four Justices say, “We're ready to grant cert.” Then Justice Barrett, I take it, would say, “Okay, now that factor goes away, because this is likely to be cert worthy, even though I don't want it to be. And then she'd have to grant it.
Dan: [00:50:18] Yeah, that's interesting. Does each Justice make that calculation about likelihood of surely based on what the other justices think, or is it their own view?
Will: [00:50:27] Yeah. I think it's supposed to be empirical, like, what you think will actually happen. I guess, or the likelihood of success on the merits, I would imagine that you would expect each Justice to make their own view of the legal merits, not like, I think they're likely to succeed on the merits, because I have five colleagues who are idiots.
Dan: [00:50:48] I'm not sure. If you have existing binding precedent that you want to overrule, I think you say, “You're likely to succeed on the merits, even though I hope we overturn the precedent.”
Will: [00:50:58] Yeah, maybe. I don't know. It's also funny, because they don't have to predict, they can talk to each other.
[laughter]
Will: [00:51:05] Anyway, I think that's a really interesting move. It's clearly an attempt to bring a little bit more, like rationality to the shadow docket, but it's also going to bring some more discretion.
Dan: [00:51:17] What else? Then we have the orders list. We have a few things in the orders list. One, not really going to talk about Simmons v. United States, which is a statement of Justice Sotomayor basically saying that, “Hey, Sixth Circuit, you didn't construe this pro se, filing liberally enough. But I also don't think this is important enough for the Supreme Court to get involved.”
Will: [00:51:39] It's my favorite genre of Sotomayor opinion, I have to say, like looking out for the little guy.
Dan: [00:51:44] Yeah, It's a good one. It's basically a prisoner who missed his deadline for filing a habeas petition, but arguably, because he didn't have access to federal legal materials in his prison. Seems like maybe the Sixth Circuit and he's filing per se seems maybe the Sixth Circuit should be a little bit more helpful to pro se filer, given that there's rules of liberal construction. So I don't disagree with any of that because he's not going to get help. Maybe the Sixth Circuit will take the hint in this case or a future case. I don't know. But she has another one, I think, it's a bit of a bigger deal, which is Koontz v. United States, which is a dissent from denial joined by Justice Breyer and Kagan. And it's a capital case where the capital prisoner is arguing that he can't be executed under Atkins v. Virginia, because he has an intellectual disability.
[00:52:44] What happened was, the lower federal courts, denied that claim using a definition of intellectual disability, that has now recently been superseded by the American Association on Intellectual and Developmental Disabilities, which is a very considered a very respected and authoritative source of what these things mean, the lower courts have taken a more bright line rule that if the intellectual disability doesn't manifest before age 18, doesn't qualify. That's apparently not the clinical definition anymore, and now it can manifest later. Here Koontz impairments manifested at age 20, fully manifested age 20. The thing that's weird, though, is that the SG’s office, now the Biden SG’s office had come into the court and said, “We agree with the capital prisoner, that the Eight Circuit is going to want to reconsider this in light of this. And we think that petition should be granted vacated and remanded back to the Eight Circuit for further consideration.” The Supreme Court says, “No, sorry. Don't care.” They deny anyways. Not totally unprecedented, but pretty unusual to not GVR in a case where the SG’s office says, “Please do GVR. We agree.”
Will: [00:54:06] Yeah. It's always this funny area, things where the SG is asking the court to give it a do over for the lower courts. There have been some Justices have always been against that practice, and said, “No, we owe it to the Eight Circuit either, right or wrong.” Not just say like, “The SG wants you to try again.” But the court often does do it. I can imagine, given the change in administration, that you also worry that the SG might be using the court a little bit. The truth is they-- I'll be happy to have this overturned for other reasons and that kind of [crosstalk] for excuse, especially weird in a criminal case where the President can commit the death sentence tomorrow, if he's actually persuaded that there's a problem, it doesn't need the Eight Circuit’s permission to commit the sentence. So, it's a little weird.
Dan: [00:54:53] Yeah. It does seem that you're getting at the behind-the-scenes dynamics that might have motivated the conservative justices to just say, “Sorry, we're not going along with this.” Couple of things. One is, some of them are just going to disagree with Atkins. The idea that the Eighth Amendment restricts execution of intellectually disabled capital prisoners. They're just going to disagree with that on the merits. But, yeah, others might think that like, “This isn't an appropriate GVR situation.” There's some times where the SG’s office comes in and says, “We think this is an erroneous decision,” or something like that. They've changed their position.
Will: [00:55:33] The clearest case of appropriate GVR is where, like, the law has changed. You relied on the Supreme Court decision, and now we've overturned the smaller decisions, you need to do it over. Another weird thing is that it's not that any legal decision has changed. It's just that this document produced by this private organization, that some people think is legally relevant to the question has changed. Obviously, this is a spectrum. If you rely on a law review article, and then the author of the law review article has since retracted the article, I don't know whoever GVR and say, like, “That's not [unintelligible 00:56:04] position anymore. Eighth Circuit, did you really mean to do that?" But if it's something that's like a statute or something you do, and then the guidelines issued by this multinational organization, which category they fit in.
[00:56:20] I'm reminded in general this a fight in the death penalty cases, like Justice Stevens loved to rely on the ABA guidance in deciding lots of like--[crosstalk]
Dan: [00:56:28] Yeah [crosstalk] assistance.
Will: [00:56:31] Right. But there are other Justices, including like several majority opinions, say like, “Oh, no, don't do that.” But then Justice Stevens get a majority, again, he’d cite the ABA guidance. [crosstalk]
Dan: [00:56:38] Yeah, but it is unusual to just say, like, in theory, this a federal constitutional question, I think, what the definition is. And just say, like, “Okay, instantly the result changes, because this association, which frankly, I had not heard of before today.”
Will: [00:56:56] And move the age from 18 to 22.
Dan: [00:56:59] Yeah, the AAIDD, I'm sure it's very respected. I'm not questioning that. But that is a little unusual, and so I could see why the courts doing that. Another situation, though, where, like, I know, we normally don't get explanations, would have been maybe not terrible for someone to just say, “Here's why we're doing this.” And give guidance about, like, SG’s office, like, “Here's when we are going to be willing to go along with you, but you don't just going to automatic GVR.”
Will: [00:57:28] I agree. I wouldn't be surprised to this is a case where there wasn't a clear consensus on why not. Like the mix of reasons we described, [unintelligible 00:57:38] different Justices. And especially if you had some of the political concerns, you might feel awkward about--[crosstalk]
Dan: [00:57:44] But if that's what's really going on, if it's like political, then they should--
Will: [00:57:48] Right. It's political mistrust, so like the SG is here trying to waste our time that the White House doesn't even want anyway. [crosstalk]
Dan: [00:57:55] Yeah. In generally, GVRs are weird, because it's the executive branch saying, “Oh, this other person should have won.” It's just like, “Let them out of jail. Do whatever you want, you have authority to do that.”
Will: [00:58:09] Right. There is also a pause on federal executions right now, too.
Dan: [00:58:14] Yeah. Also, I think this issue could be litigated on collateral review. So, this is not the end of the story. Last one to talk about, is a dissent from denial that's joined by Justice Sotomayor, but is not by Justice Sotomayor. It's actually by Justice Gorsuch, in this case, hopefully named ACLU v. United States. That case could be about a lot of things. ACLU has a lot of things that might want objective to that the US does. This is interesting¸ read the next line.
Will: [00:58:51] I’ll read the caption, ACLU v. United States. “On a petition for writ of certiorari to the United States Foreign Intelligence Surveillance Court of Review.” Not a frequent appear in the Supreme Court.
Dan: [00:59:03] Yeah, I'm not aware of whether the court has ever heard a petition from this court. Basically, there's this special court system, which is set up to issue warrants for electronic surveillance conducted for foreign intelligence. It's called the Foreign Intelligence Surveillance Court. And then there's the Foreign Intelligence Surveillance Court of Review. First one, we call Michael Fisk, and then we have the FISCR that hears appeals. FISCR hears appeals from Fisk, and it's a court made up of a group of selected district judges. Chief Justice Roberts has historically put more Republican appointed justices on the Democratic appointed justice. I think it's not a great system. And we have a few other article three judges on there. What does this court do? We don't really even know what they do, these courts do, right?
Will: [00:59:59] Well, we know they basically review warrant applications for some sort of national security things.
Dan: [01:00:03] Yeah. But do they write opinions? What does it look like? It's secret, that's the problem. What the ACLU is saying is, “The First Amendment should give us a qualified right, of two opinions containing significant legal analysis,” even if you have to redact them. In general, there is this idea that there is a First Amendment right of access to the public to judicial proceedings. The stuff is not supposed to happen totally in secret [crosstalk] argument.
Will: [01:00:33] And then even while you can't have-- some stuff has to be secret, but you have to like the presumption is openness. So, you can't just have things like categorically blackbox, you have to go through them and decide exactly what has to be secret and what doesn't, and so on.
Dan: Yeah. What does the government say in response? The government says, “You can't even consider this. Regardless whether this is right or wrong, this Court doesn't have the power to hear this.”
Will: [01:01:00] Right. There's no certiorari jurisdiction, because the FISCR is not a Court of Appeals. It's not covered by the other various statutes, and then that leaves the All Writs Act, which is what the court uses to grant these various emergency motions and injunctions. And it's broadly worded, but court says, “Even then, the court jurisdiction.” The government's view is ironic, given the government's position and US v. Texas. But the government's view is, “This part of the government doesn't have to answer to any court authority. We have no remedy and we just have to ignore them.”
Dan: [01:01:37] Which is a little troubling, and I thought this is pretty good opinion by Justice Gorsuch. Last paragraph, he says, “Today, the Court declined to take up this matter. I would hear it. This case presents questions about the right of public access to Article III judicial proceedings of grave national importance. Maybe even more fundamentally, this case involves a governmental challenge to the power of this court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is? Respectfully, I dissent. He's got a point.
Will: [01:02:07] Yeah.
Dan: [01:02:08] Why is there no interest in doing this? Why do only two justices seem interested in this?
Will: [01:02:14] Yeah. Well, it's a good question.
Dan: [01:02:19] [crosstalk] I was hoping you knew.
Will: [01:02:20] Well, I think the awkwardness, the procedural vehicles is probably part of it, even if you're not convinced the United States that the Supreme Court doesn't have jurisdiction, that can be a so-called vehicle problem, like why we shouldn't have First Amendment issues.
Dan: [01:02:34] Could the ACLU now go to federal district court and file an injunction and file a suit seeking [crosstalk] relief?
Will: [01:02:42] Maybe. I think this really is going to replay some of the US v. Texas questions. “Can you get it [unintelligible [01:02:48] stretches?” I assume there's somebody in the ACLU is going to respond to this by trying about four other procedural mechanisms to get them into the court to see if any of those work, but it's a tough area of certiorari, because it's not like there's a circuit split, like they can't be really be a circuit split about this. So, it's hard to know, is this something we have to weigh in on? The court is often hesitant to get involved in national security questions where it doesn't necessarily know its doing, although it's not like the FISC judgers are any more expert, really in national security.
Dan: [01:03:25] It's interesting that Justice Gorsuch seems eager to address this First Amendment issue, because the First Amendment right of public access does have this flavor of maybe something that's like, I might have suspected that Justice Gorsuch type might think is made up. I don't conclusively read him as reaching the merits to that. But he does seem he's like, gung-ho about it.
Will: [01:03:48] Yeah. Well, in the lower courts, it's often a mixture of the First Amendment and more common law principles. I do think you could think that this is as a matter of general the common law of judicial procedure, that the presumption of openness is important, and presumably these judges enter to the Supreme Court in some way. Lingering issue I've always liked, which is that it's not clear that the Chief Justice should have the authority to pick people. Out of the Appointments Clause, officers can be vested in the President, plus the Senate. The President alone, the head of--[crosstalk]
Dan: [01:04:23] [crosstalk] -the courts of law.
Will: [01:04:24] Or the courts of law. The Chief Justice is [crosstalk] court.
Dan: [01:04:25] Yeah, he's not a court.
Will: [01:04:28] Right. So I think there's a pretty good argument that it should actually be the supreme court as a whole that has [crosstalk] and the supreme court could choose to delegate it to the chief that they want to do. The arguments never been conclusively resolved.
Dan: [01:04:39] Can we litigate that now?
Will: [01:04:41] Well, apparently not.
[chuckles]
Dan: [01:04:44] Can we sue the Chief Justice? I don't know. Can we sue somebody?
Will: [01:04:47] You can do that. I'm still trying to get him into the bar. [chuckles]
Dan: [01:04:50] Did you send your stuff off?
Will: [01:04:53] I got the Certificate of Good Standing. [crosstalk]
Dan: [01:04:55] Okay. Basically, you're not trying.
Will: [01:04:58] Trying, it's very hard, Dan.
Dan: [01:05:00] It's not hard. Administrative help, it's a form. It's one form.
Will: [01:05:04] Forms are hard. [laughs] I need to get print it, need to fill it out, I have to--[crosstalk]
Dan: [01:05:11] You have administrative help, someone can help you print this. If we have any paralegals out there who want to volunteer their services to Will, he's apparently just completely unable to do basic adult tasks. All right, I think that's it. I don't know if I can go forward anymore after that revelation. I think I'm just too disgusted to go forward. So, I might as well just send the episode there.
Will: [01:05:33] Maybe by the end of Season Two to office, yeah.
Dan: [01:05:35] We’ll see. This is going to be a longer season than Season One because we started this-- we should have started in October, starting this November. We're going to go presumably through July, unless the court just decides to give up around February or something, which I don't expect them to, but wouldn't mind.
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