We try to clear our backlog after a break. We manage to make it through United States v. Tsarnaev, Ramirez v. Collier, and a few other odds and ends.
We try to clear our backlog after a break. We manage to make it through United States v. Tsarnaev, Ramirez v. Collier, and a few other odds and ends.
[Divided Argument theme]
Dan: Well, welcome to Divided Argument, an unscheduled, unpredictable Supreme Court Podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: Will, last time, I promised we would record another episode in the next week, didn't happen. Why'd that happen?
Will: I think this was my fault. I think I was at the beach.
Dan: You went on vacation. I hadn't realized that you were actually going to vacation. You had spring break. I feel law professor spring break is usually just the week where we catch up on work. But apparently, once you get to Will's stature in the profession, you actually take a spring break.
Will: Well, if you have a confluence of three things, you're a law professor with small children, your small children have a school that has the same spring break as you do, and you live in a place where it snows on March 31st, as it did yesterday, then you take advantage of spring break to go to the beach.
Dan: Yeah, you've got to get out. Which beach did you go to, Florida?
Will: San Diego, my old hometown.
Dan: That's a nice beach. That's not your original home though, you're a Hoosier?
Will: I'm a Hoosier, originally, but before I moved to Chicago, I lived in San Diego.
Dan: Yes. Do you know that in Missouri and St. Louis, the word 'Hoosier' is actually just used to mean an idiot? It doesn't actually necessarily refer to people from Indiana, but it's just like, "Oh, that dumb Hoosier did this." I don't use it that way, but I'm just saying that. I'm told that this--
Will: Yeah, that make sense. I think in Indiana, we use the word 'Missourian'. [chuckles]
Dan: No, you don't. Don't pretend.
Will: We will now.
Dan: Well, no, you won't, because you're not an Indianian anymore but you could move back there just to be able to do that. Okay, so some stuff has happened. And I'd say medium amount of things, including some things that had already happened when we recorded last, but we didn't quite get to, because we had such a wide ranging discussion about Wooden v. United States and Zubaydah. Where to start?
Will: Well, we got a couple of good pieces of reader feedback about Wooden and Zubaydah that worth mentioning, at least. Wooden was the delightful Armed Career Criminal Act case about whether or not breaking through the walls at a storage unit counts as 10 different incidents. And I think I had special praise for the lawyers who recognized what a perfect vehicle this was and filed this petition to get this on the court's docket. A friend of the show wrote in, to point out that I did not mention who that stage lawyer was and honestly, because I didn't know I hadn't actually gone to look the cert petition. Turns out, you know who that was?
Dan: I do not.
Will: It was Mr. Wooden himself. He filed cert petition per se.
Dan: Wow. So, he not only was he an effective advocate, good vehicle selector, by selecting his own case as the vehicle.
Will: Yeah. Clever burglar, except for the part whereas the storage unit next to his house which is maybe not the best move. Clever lawyer, clever cert petitioner. I hope he goes to law school someday.
Dan: Yeah, it is interesting. I feel there are a couple of these pro se prisoner cert petitions that get granted every year or two. You wonder why these cases don't get spotted. I mean there's a very active Supreme Court bar that's eagerly looking for cases. But not all of these get spotted by Supreme Court lawyers, and for whatever reason, this one was not spotted.
Will: Do you recollect we even had a summary reversal off of a pro se cert petition? One of those times when, I guess if you're close enough to the case, so you can say, "Well, wait a minute, the opinion said this, but it also said this and these things are logically contradictory." Maybe that's just easier to see if you're not just scanning for cases.
Dan: Yeah. There also is the interesting phenomenon of the jailhouse lawyer, people who help other inmates who help other inmates with their filings. The most famous of all time, I think, has to be Shon Hopwood, who's now a Georgetown University Law Center professor. While he was incarcerated for bank robbery, he worked on, I think, two different cert petitions that were granted. One was a grant vacate and remand and one. I think it was granted on the merits, if I remember correctly, and he wrote a book about that experience, and is now a very successful lawyer and law professor.
Will: That is a funny-- I guess, this came to Mr. Wooden. So, the Supreme Court does have a rule that if your case is granted and you're not a lawyer, you're not allowed to argue your case per se.
Dan: Oh, yeah. You think this is illegal, this is plausibly illegal, right?
Will: I do. There's a federal statute that says that this, I think, basically the founding that says, in all courts, United States, the parties may plead and conduct their own cases personally, which I think means that you have a statutory right to argue pro se that the Supreme Court can abrogate. This hasn't yet come up since the court has formally probably got to the rule. Mr. Wooden was happy to get a lawyer and didn't try to file a motion pro se. But I have a standing offer to anybody in this situation that if they want help trying to write the motion convincing the court that they should be allowed to argue their case pro se, I'm happy to help.
Dan: I'm not sure you can do that, because you're not a member of the Supreme Court bar.
Will: Well, still [crosstalk] maybe that would push me over the edge.
Dan: Okay. Have you made any progress on that?
Will: I have the Certificate of Good Standing on my desk. I found it today in my tax stuff.
Dan: Those expire. Don’t you need one that's issued in a certain period of time?
Will: That has happened every time before. Yeah.
Dan: [laughs] Okay, get it. Get it in there. What other pieces of follow up? One small thing when I said in a couple episodes back that we were not speaking to the youth on the show a few-- maybe two or three people wrote in to say that they are younger than retirement age and listened to the show. So, thank you.
Will: Yeah, we love our small but loyal, young leadership. Thank you for that. Tell your other young friends. We also got an interesting comment from friend of the show, Richard Re, about the other case, we talked about Zubaydah, that actually inspired, I think, a blog post on his excellent blog pointing out another just weird thing about the opinion that we didn't really dwell on, which is that there are only five votes for a lot of parts of the opinion because we talked about the Thomas-- anyway, there are only five votes for a lot of the parts of the opinion. And there are only five votes for the court's ultimate judgment, but they're not the same five votes. Justice Kagan provides the crucial vote for a lot of parts the opinion to make an opinion of the court. But then at the end of the day, she has a different view about the remedy. She didn't think the case had to be dismissed, as we talked about. And totally clear that's okay. Like part of the theory of judicial opinion, is it's connected to the exercise of judicial power, like the actual ruling. And so, [crosstalk] yeah.
Dan: Is it fair to say Richard is the nation's leading expert on the relationship between opinions and judgments? Because he's written very well-regarded article about the Marks rule.
Will: Yeah.
Dan: Which is like, "What do you do when there's a fractured chord, and you're trying to make sense of what the holding is?" This is the best possible expert we could have on this issue. That is really interesting. What if you have a 5-4 case, and you have one person purporting to write the majority opinion with the four dissenters but who goes the other direction in the judgment? That is weird.
Will: Right. The difference is what didn't happen in NFIB v. Sebelius, there are a bunch of parts of the opinion, where Chief Justice Roberts says things that agree with the dissent. There are bunch of parts of the opinion where he says, why the laws beyond the Commerce Clause, Necessary and Proper Clause and so on. And the dissenters have the same view, but they wrote those separately. That's just an opinion for Justice Roberts and the dissenters. If they decided to try to pull a Kagan and just announce, "Well, actually we're going to enjoin parts one and two of the opinion to make those more clearly binding, even though we're also a dissent," it would have raised the same question.
Dan: Yeah.
Will: And I take it people would have thought that wasn't kosher. So, maybe it's not kosher for Justice Kagan to do it either. I don't know.
Dan: Yeah, I think that's possible, because to the extent you're saying, "This justice delivered the opinion of the court," in what sense is an opinion of the court, if it is describing a view that members of the court who don't all agree on what the court is doing should do? I don't know.
Will: Look, the five justices on the Supreme Court might share views about a lot of topics, but they don't just deliver unrelated declarations or the views of five justices. It's only when the five justices get together in a particular case and controversy to do something, but they're also allowed to tell us their views about things. So, the question is that the five justices get together in a case and actually don't agree on what to do, is that still enough of a band that they get to record an album?
Dan: I don't know. Well, I sense, is there maybe a new article coming, Richard? What do you think? Do you think he's going to drop one?
Will: Maybe. This connects a lot to the stuff he's already written. I think it does connect to a fundamental question about the nature of Supreme Court precedent. I guess there is a good case for this kind of opinion, which I'm more sympathetic to than Richard. It will be really opinions are just about like-- they're really just about giving us information to predict what the courts going to do. They don't have legal force on their own exactly. They're just like, they help you predict what the courts going to do, and that's a major part of precedent. If that's what's going on, then knowing that Justice Kagan agrees with all this stuff is probably useful and it's better that she gave that to us. But if you don't have a predictive model of the court, it's harder to explain why this is--
Dan: That's true, but it is weird though because then you can cite it as a majority opinion in the same way that you could with a non-majority opinion. Whereas if she had written a dissenting opinion, or concurrence in part, dissenting in part opinion, you'd have to link up the plurality opinion and her opinion to make sense--[crosstalk]
Will: And that triggers a Marks dispute, whether you're allowed to do that in Marks. So, in a way, it is exactly why it's a little suspicious. It's like if she'd done it separately, it would have been unclear whether you add the two opinions together. So, she just says, "Well, I'll just join that one, even though I'm dissenting from it." And now it probably will cause courts to add them together. I guess another part of the question is the court called this-- the opinion says this is the opinion of the court. [chuckles] And I feel usually just take that at face value, like, "Well, it says the opinion of the court, so I guess it's the opinion of the court. But we don't always do that. It comes up occasionally, when a court will say, like, "We hold that," but then the thing they hold, it's broad and maybe dicta. And then it's like, "Well, does that make it a holding because the court called that we hold?"
Dan: Okay. Well, I don't have an answer on that one, but it's super interesting.
Will: Yeah. I could want to watch for future very clever, state secrets litigators.
Dan: What else?
Will: I think that's all we have for follow-up. But we have at least one big case from last time that we didn't get to, because we just got so wrapped up in burglary.
Dan: Follow up with my article.
Will: Oh. What's the [unintelligible [00:11:06]?
Dan: Well, mine and Danielle's Fourth Amendment and General Law is going to be in Yale Law Journal, which I'm very excited about.
Will: Do they listen to the show, you think?
Dan: I don't know. They didn't say so when they told us they were accepting it but can't hurt that we talked about it. So, I'm excited about that. Excited about that for a lot of reasons. But one in particular, you know why?
Will: No.
Dan: I feel it's the right place to attack you, Will.
Will: [chuckles]
Dan: It's kind of like your home turf. You're a Yale grad.
Will: Yeah.
Dan: Aren't you also the president of the Yale Law Journal Association or something?
Will: I am the President of the Board of Directors of the Corporation that owns the law journal, yes.
Dan: Okay. As we said, just a sneak attack on you, coming from where you least expect it. And now I'm doing it on-- you were an editor of the Yale Law Journal as well, right?
Will: I was, true.
Dan: Okay.
Will: I'll say I haven't published there very often. James and I have been talking about, "We need to get back into this, write something." I don't know whether it'd be a direct response to your piece or something that responds to you and Orin and all the other people out there who've failed see the light. But I've got a couple of responses to you, I think.
Dan: I will look forward to that. Also, Orin, waiting to hear where you are on these questions that are in the paper. And I'm worried that he's preparing a counter attack, but we'll see. You're still friend of the show, no matter what happens.
Will: Speak for yourself.
[chuckles]
Dan: What else? Do we just go on and talk about opinions?
Will: I think so.
Dan: Okay. Enough navel-gazing. Let's do some opinions. Where to start? Do you want to start with the United States v. Tsarnaev? This is one that we meant to get to on the last episode but did not quite get there. Is that a good place to start?
Will: Yeah, let's talk about it. We've got a lot of stuff to get to, but we should at least talk a little bit about this one.
Dan: Yeah. This is one of two capital cases we're going to talk about today. This one involves the Boston Marathon bomber, Dzhokhar Tsarnaev, who is the younger brother of Tamerlan Tsarnaev who, I think, there is agreement who was the mastermind of the Boston Marathon bombing, but was not tried because he was subsequently killed while the police were trying to apprehend the brothers. Younger brother, Dzhokhar, was tried in a capital trial, federal death penalty charges. And he was found guilty, and the jury recommended death penalty for several charges, and he was sentenced to death. And then, this case was litigated in Washington, so went up to the First Circuit, and the First Circuit actually overturned the death sentence. And the case now came to the Supreme Court. What are the issues here?
Will: There are two issues that have made their way to the Supreme Court, I guess two issues that the First Circuit thought merited every trial. One about the way the court talks to the potential jurors in trying to select a jury, confronting the obvious problem that under current law, sort of contrary to founding practice, we want the jury to be of relatively open mind and be relatively uninformed about the incident.
Dan: Is that founding practice or is that way pre-founding practice? The original juries going back hundreds of years were local people from the community who knew what was going on. Not totally sure if that was still really the case at the time of the founding.
Will: I don't think there's a requirement by the time of the founding, but I think the Constitution itself has specific locality/vicinity requirements, requiring a jury pretty connected to where the crime took place. At least in the federal practice, the marshals had a decent amount of discretion to decide who to round up for the veneer, which my understanding is they're regularly used to juke the stats.
Dan: Yeah. You might care about having a locally drawn jury, not necessarily because that jury actually knows what happened in the case, but so they bring community values that might be different. The founders were very concerned about cases involving British soldiers being tried back in England, rather than being tried in the colonies, shows up in the Declaration of Independence.
Will: Right. If you wanted to avoid, you want to make sure your jury had not prejudged the issue. You probably wouldn't constitutionally require them to be people who would be the most likely to have [crosstalk] of the issue.
Dan: Yes. And this is a real issue for this case, in particular, because it's hard to imagine a higher profile case in the greater Boston area. This is the case, I remember, I wasn't even in the region when this happened. I remember it was at a friend's house and we were all just nervously watching TV while this manhunt was going on. I think they shut down all the roads in the region for a period of time while they were trying to locate the brothers and they were having a shootout. And so, not only would almost everyone in the region would be familiar with the case, I mean they might have been directly affected by it in the sense of trying to get home and the roads are all shut down. And so, hard to imagine most potential jurors maybe wouldn't have at least some thoughts about the case.
Will: I think this was the year I was on the job market. I think I'd been out there for a job talk, and I was going back. I was not there when it happened, but I was talking to a lot of people while this was going on. And I think until about 10 years ago, one solution court sometimes used was to move the case to a nearby place where there was-- so you could say, "Well, let's not hear the case in Boston, let's move it out to some other part of Massachusetts, where at least it'd be a little bit more removed, I don't know how much they'd have accomplished here.
Dan: Worcester.
Will: Yeah, there you go.
Dan: Springfield.
Will: [crosstalk] - Massachusetts at least.
Dan: Naming places in Massachusetts that are not close to Boston.
Will: Massachusetts is small, everything is close to Boston.
Dan: Yeah.
Will: But in a case called United States v. Skilling, basically, Enron prosecutions, which have a similar problem in Houston, the court basically said, "You don't really need to do this, almost ever." It was not if it involves a big city. We don't do that anymore. The First Circuit said that the district court should have asked more specific questions about each juror's specific media consumption and things like that to--
Dan: So, they can help the parties weed out people from the jury who maybe had preconceptions.
Will: Right, or too many-- It's all vague. Exactly what we're looking for, and exactly where the line is, is still all little fuzzy but that was the problem. And it also raises an interesting little fed court issue, sort of--
Dan: Or a big one. I don't know.
Will: Sure.
Dan: Yeah. I think to set that up, we'd say like, "The First Circuit said that the trial court should have asked these questions." The First Circuit wasn't saying, "It was unconstitutional not to ask these questions." Right?
Will: Right. It wasn't saying it violated a federal statute, not to ask these questions. It wasn't even saying it violated a written document, the Federal Rules of Criminal Procedure, or the Federal Rules of Evidence not to ask these questions, but there's no source of positive law that require them to ask these questions.
Dan: No source of written positive law?
Will: Well, no source of-- there's an old First Circuit case [chuckles] that said the district court should ask these questions, that the district courts, that the First Circuit said, was justified by the first circuit's supervisory power over the district court.
Dan: And this is the idea that basically, courts have some kind of inherent power not only to regulate practice before them, but also possibly to regulate practice in courts over which they have authority. First Circuit reviews decisions, the district courts, and the First Circuit-- and the First Circuit is sort of claiming, "Well, we have this inherent supervisory power to dictate certain kinds of rules," not clear exactly what the scope of that would be, but the certain kinds of rules for the lower Federal Courts in our jurisdiction.
Will: Yeah. The court ends up being pretty skeptical about this and some of the justices end up being extremely skeptical about this, but I'll just note sort of two to make it sound not totally made up. For a long time, a lot of rules of procedure and a lot of Federal Courts are unwritten. We didn't have federal evidence until like the 1970s and 1960s, but until then, they're determined by common law. You can imagine a lot of pleading and practice, especially in the early days, can be like that, where you just have to figure how things work, and we don't obsess about codifying things in the same way now. If you're doing that, it's not crazy to imagine that sometimes the appellate court would have some useful input for the lower courts about how that should work.
This comes up a lot in practice. There are particular practices that are not technically forbidden by various rules, but seem really problematic, like will the federal district courts will just let the parties write the opinion, because the parties do submit in a civil case, proposed findings of fact and proposed revisions of law. The trial court's often borrowing from them, when it's ruling for one of the of the parties. But some circuits say plausibly, it crosses the line, the Federal Court just literally takes the party's findings of fact, conclusions of law and just like re-announces that they are there's because you're worried that the district court didn't really exercise its reasoned judgment about every single one of those, unless it went through them line by line. Other places, [unintelligible 00:20:55] another practice isn't writing opinions at all. You can imagine that court that really didn't want to get reversed, will just refuse to ever say why it did anything, because under the presumptions of correctness, you'd be like, "Well, you didn't get the law wrong, because you didn't say anything." So, as appellate courts will tell the lower courts, "You can't do that. You've got to give something to go on." This goes further than that, obviously, but it's not crazy to think sometimes there'd be some supervision.
Dan: Yeah. Also, the Supreme Court has historically claimed a certain amount of supervisory power over the lower Federal Courts, generally. And there are various rules, some of them are important rules that found at least an original basis in the Federal Supreme Court's asserted supervisory power. For example, in Ballard v. United States case from the 1946, the court said, "Well, on the basis of our supervisory power, we're going to say that you can reverse the conviction from federal conviction, when women have been excluded from the jury, because of the requirement of a fair cross section." That's before the court had constitutionalized that ruling under the Sixth Amendment. So, there's various things where the court in the past has said, "We do have this really broad power."
Will: Yeah. Now that said, the majority says, "Whatever supervisory power may exist, it doesn't include this level of specification or this rule." That seems fair enough. But Justice Barrett has a concurrence that in some ways, was further might be more worth just flagging here, which she writes a concurrence with Justice Gorsuch saying, "I'm not sure that the courts of appeals have this supervisory power at all. So, maybe the Supreme Court does," she says, because the Constitution says, "We're supreme, and other courts are inferior," and that sets out some sort of maybe relationship, although honestly, doesn't like she really believes that either. But that Court Of Appeals and district courts are both just constitutionally inferior courts. The main relationship is appellate review. So, if the Court of Appeals thinks the district court did something legally wrong, they can cite a legal source and tell them that they did. But if it's outside of a statute or Constitution, or even a common law rule, then each court gets to regulate its own practice.
Dan: What do you think about this? I'm sure you have a prior.
Will: Her view seems very plausible to me, I will say. While it's true that courts need to have some interstitial ability to regulate their own practice, it doesn't follow the first circuit, needs to have an interstitial ability to regulate the practice the district courts. And I think it's right that appellate courts get too used to thinking of themselves as just generically the bosses and the courts below them, rather than focusing specifically on the appellate review mechanisms. So, that all seems right to me. And some of the prior examples, seemed like cases where the court really wants to make a constitutional ruling, but doesn't yet have the guts or the votes to do so. Just say that, like, "You can't discriminate against female jurors. So, that's what we think." Said, I'm still stuck on questions like if the lower court is doing something not technically forbidden, but clearly designed to frustrate appellate review, like refusing to write opinions. I'm not positive that that's outside the power of the appellate court. So, maybe Justice Barrett would agree, maybe she'd say that's incidental to the power of appellate review that you can keep the lower court from frustrating appellate review or something. Or, maybe she'd just say, "We need a rule about that." I don't know.
Dan: Yeah, that's interesting. I wonder whether there's appetite to reconsider that question. She has Justice Gorsuch in her concurrence, and nobody else. Doesn't mean that she couldn't bring other folks along at a later point. So, we'll see. It'd be interesting to really see what somebody says about the history, how long have courts been doing this? Is this something that courts really just started doing in the 20th century? Does it have firmer basis than that? And is there some way to distinguish between the appellate court doing this versus the Supreme Court doing this? I don't have the answers to those questions. My sense is more generally that the court has reigned in rules like this in recent decades, and so there may not be as much left in terms of rules that purport to justify the reversal of, say, a criminal conviction on the basis of a supervisory power. But there still are some things that are left there. So, I wonder what the consequences would be.
Will: Yep. I agree.
Dan: Okay, so in the absence of a federal statutory constitutional violation, the district court's failure to ask more searching inquiries, is not a ground for reversal of the death sentence.
Will: That's right. Okay. Then, there's a second question, which is some evidence that the district court excluded from the sentencing proceedings, which the defendant thought should have been allowed in. We can have a better handle on what we think about this. The evidence is some evidence that Tamerlan, who is not--
Dan: The older brother.
Will: The older brother who is dead, who is not here, committed a bunch of other unsolved murders in Waltham, which I don't know, is that close to Boston or far from Boston, but I gather that's also in Massachusetts.
Dan: It's half an hour. It's a suburb.
Will: Yeah. I take it this would have shown that Tamerlan was really the bad guy, and so allowed to shift some of the moral blame to his brother.
Dan: Which was part of the strategy at the capital stage of the trial to say that he bore less culpability, his brother dragged him into it. This was significant evidence. It's a bizarre twist to this case, because what happened was the FBI later in the investigation figured out that this has happened, that Tamerlan have committed these triple murders, and they went and interrogated one of the accomplices, an accomplice, and then in that interrogation he, the accomplice, admits to it but then, gets killed when he pulls a gun on the FBI agent. So, it's just a totally unexpected twist in the case.
Will: Yeah. It's like an episode of The Wire or something. Tell me, you probably know this area of law better than I do. Here's my vague understanding of why this case comes up. Tell me if this is wrong to you. In general, in a criminal case, like outside of the capital context, we don't usually let the defendant stage mini trials of other people, not before the court. There's a range of rules of evidence, but in general, if your defense is going to ultimately require us to prove that somebody else here committed a bunch of other crimes that have not even been charged, we don't let you do that.
But in capital cases, at sentencing, we normally let the defendant do just about anything he wants. We have extremely generous rules of evidence in which you can bring in things of only tangential legal relevance just to try to somehow make the jury think that you're not the extreme case that deserves capital punishment. And so, this is about the conflict of those two principles, is that how works?
Dan: Yeah. I think that maybe not necessarily a conflict, because the rules that govern the guilt phase of the trial just aren't an issue when we get to sentencing in the sense that in various ways, both in terms of what the defendant can bring in, but also what the prosecution can bring in, what judges can bring in is very, very unconstrained. The court has said, for example, there is no constitutional problem with a judge just relying on hearsay evidence to figure out, like, "Is this defendant a bad guy?" in sentencing. Particularly, in the capital stage, these capital proceedings usually involve both aggravating factors so that the government will want to point to things about the crime that make it really heinous or make it eligible for death. And then, defendant will want to point to mitigating factors that bear on culpability, and that is certainly much more open ended. That doesn't mean that there are no rules of evidence to govern that. But in Federal Court, we have this special proceeding, special provision. 18 U.S.C. § 3593, that provision in language that's pretty broad says, "At the sentencing hearing, information may be presented as to any matter relevant to the sentence, including any mitigating or aggravating factor. The defendant may present any evidence relevant to a mitigating factor. With the caveat that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading," which is the normal rule that applies with the relevant evidence. There's a balancing in terms of admissibility.
And here, the district court weighed the importance of bringing in this evidence, concluded that this just didn't have probative value and would be confusing to the jury. We have the majority opinion by Justice Thomas. Court here says that conclusion was reasonable and not an abuse of the district courts discretion. I've got to say, I'm less persuaded on this. I can understand the supervisory power holding that it was within the district courts' discretion, in terms of what questions to ask, in general. As a legal matter, we give district courts a fair bit of leeway in figuring out exactly how to conduct voir dire with the jury. But here, on its face struck me as reasonably probative of a theory that Tamerlan was just like a really bad guy, and was more likely to have really been the mastermind who sucked his brother into it. Obviously, it doesn't exculpate him entirely, but certainly seems like it should bear on that question of relative culpability.
Will: Mm-hmm. Given the loose standards of probative value in sentencing proceedings, I see why you're skeptical of the first half of the conclusion. But the district court also gets to decide, this is just going to be too confusing at this stage of the game. Look, I wasn't at the trial, I haven't even read the trial transcript. But I feel the district court is better positioned than most people to know whether it's going to be confusing. And the defendant has every incentive to try to confuse the jury at this stage of the game. That would be a very plausible thing that you would try to bring in these other murders that just throw dirt in the water, in the hopes that will get the jury off track. I don't know whether that happened or not. I'm not confident that didn't happen.
Dan: Yeah, maybe. And it seems like that can be addressed by very clearly explaining to the jury why this is being admitted and for what purpose. We generally presume that juries are able to follow their instructions, that they're not complete idiots. At least with respect to the conclusion that it's not probative that I'm not by the confusion, maybe. But also, it does seem at the very least, a close call. Now, I can see more generally, when I saw that this petition was up, when I saw that this was granted, I didn't think that this is the kind of case, a capital sentence involving one of the more high-profile crimes committed in the United States in recent years. I really thought there was a very good chance the court was going to find a way to reinstate the capital sentence that they were going to say, "Look, let's not overturn this for some ticky-tacky thing." I think at a high level that sort of what's going on here.
Will: Look, I agree with that. For a long time, there's been this refrain that death is different. Meaning, in some way, it's okay to apply more searching procedural rules and more skeptical reviews of death sentences to make really sure they're correct. I think that mantra has taken hold so widely that the opposite may be true a little bit now for the Supreme Court. I think when the Supreme Court sees that the Court of Appeals has reversed a death sentence on some pretty marginal legal issues, that may well cause the Supreme Court to come in very much primed to reverse, very much primed to kind of suspect the First Circuit of bad faith, and so to give all sort of benefit of the doubt, not to the defendant, but the benefit of the doubt to the execution. Can we spend one minute on the last paragraph of the case?
Dan: Sure.
Will: Okay. This opinion by Justice Thomas who has a distinctive writing style in these kinds of criminal cases that he likes to spend more time than necessary on how atrocious the defendant's conduct is, so just like a recurring thing. I felt this happened a little bit in the last paragraph of the case for the court, it sort of sums up its holding what happened. It's just something-- I still have to read this, "Dzhokhar Tsarnaev committed heinous crimes. The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one. The judgment of United States Court of Appeals to the First Circuit is reversed." Just a little bit of a dig there. Like, "You're a bad guy. Don't complain. We're done."
Dan: It feels like there's a little bit of sleight of hand going on there, because isn't part of the argument, the first question about the jury questions, that there is some chance to think that there was an impartial jury here, and we just never got to figure that out? Isn't that why we want to ask those questions?
Will: Well, yes, the sleight of hand is in both directions. There's no Sixth Amendment question before the court. It's two challenges. You can see the Sixth Amendment was complied with. The question was did the district court have to comply with first circuit precedent unrelated to Sixth Amendment, and did the district court violate 18 U.S.C. § 3593? which is not--[crosstalk]
Dan: Is the reason we would have wanted to ask those questions, because it might have revealed something that would have actually revealed that there was not an impartial jury here?
Will: Yes. No, I think the other--
Dan: It could be the case that the jury was not impartial, we just will never know.
Will: Yes. I think the more academic and honest way to say this would have been something like, "The Sixth Amendment requires a fair trial before an impartial jury. For reasons related to constitutional underenforcement and the special values at stake in death cases with a lot of doctrines that relate to impartiality beyond the Sixth Amendment in death cases, including a federal statute and a ton of precedent." In this case, I don’t know if you put it that way, [chuckles] you have to be a little more clear about how you feel about that.
Dan: It's not as snappy of a conclusion. But we will actually come back to this question about how Justice Thomas likes to frame criminal cases and capital cases in particular that in just a few minutes, but this is a case that divides the court along partisan lines. We have a dissent by Justice Breyer joined by Justices Sotomayor and Kagan. And the dissent focuses on the second part of the decision, which is about whether Dzhokhar could have introduced the evidence of Tamerlan's involvement in the prior crimes. It does not get into the first part. Anything to say about that? The opinion says, Breyer says, "I disagree with the court's decision and agree with the Court of Appeals, at least as to the second reason," the evidence. So, it doesn't say, "I disagree with the first thing. We just don't need to get into it."
Will: Right. The thing about Justice Breyer's dissent is he has a long-standing skepticism of the death penalty in general and whether it can be fairly administered, which he notes in the dissent, in one paragraph that's not joined by the other Justices. And I think he would admit that's also influencing his view that we need to be extra careful, turn extra square corners and send a message to district courts that the defense has some theory, if you get a chance to put it on.
Dan: But then, few does not prevail, so the capital sentence will be reinstated. As to when the execution will be carried out, not clear, as we'll talk about, momentarily. After there is an appeal of capital, defendant's conviction, a death sentence, even once that's affirmed by an appellate court, that's not the end of the story. There's a lot of litigation that can come later leading up to an execution.
Will: Sure. Well, there's collateral litigation where he could complain about interventions of counsel, newly discovered evidence. Then there's method of execution litigation, where he can complain that the execution itself will be cruel and unusual. There's also of course, the possibility of clemency, other issues. So, I don't know, it's very unclear when, if ever Dzhokhar Tsarnaev would actually be executed by the federal government.
Dan: Yeah.
Will: Maybe.
Dan: Okay. Is that a segue into the next opinion we want to talk about?
Will: Sure. The other death case?
Dan: Yes, which is Ramirez v. Collier. We spent a little bit time on this, but we actually have a couple other things we want to get to as well before our time to record expires. This is one that we maybe don't need to talk about quite as much because we talked about it around the time when it was granted.
Will: I think during the live shows maybe.
Dan: Yes, during the Chicago live show, and I said the conflict between religious liberty and unspeakable cruelty to capital defendants, basically, the dispute is about whether this capital prisoner can have his pastor in the death room and making audible prayer, and also touching him during the execution, which he says is something that his religious faith requires at the moment that he's dying. Whether this is the Texas prison system did not want to permit this, there have been various back and forth earlier in some other cases. I think we've already talked about where the court had first declined to step in and then stepped in and sort of said, "You need to have rules that are fair and don't discriminate against different religions." Texas ultimately adopts a rule that says, "Okay, we're not going to allow this for members of any faith. But this creates a bit of a legal problem because of RLUIPA," which is the Religious Land Use and Institutionalized Persons Act of 2000, which is a statute that was passed in order to provide broader protection for religious liberty than Supreme Court doctrine at present had permitted. And it was enacted in the wake of the court's limitation of the Religious Freedom Restoration Act, which was a broader statute that had been designed to overturn the courts precedent, interpreting the Free Exercise Clause quite narrowly. And this one, in terms of institutionalized persons, governs prisoners and gives them certain amount of religious liberty and puts limits on the degree to which prisons can restrict their religious liberty.
Will: Well, today, religious freedom defeated unspeakable cruelty. [crosstalk]
Dan: Yes, for a time. This case comes up in-- this is fed court, so maybe you can explain this to people, but it comes up in a sort of preliminary posture. It comes up in a preliminary injunction posture released, the court is going to construe this as a preliminary injunction posture rather than a full trial that's been conducted on the merits of this policy, because these capital cases are often decided in a very fast paced way. So, the court is going to approach this question through the lens of, should a preliminary injunction against Ramirez's execution under the current state of Texas rules be granted?
Will: Yes. A couple things in the procedure. One is, we talked about this a little bit before, but this case originally starts as a so-called shadow docket case, a last-minute stay injunction of execution case, where the court then grants a stay long enough for oral argument to give a chance to consider these issues and really go through them in a way they hadn't been able to do in the faster cases. This is one of the examples of the court's experiment with trying to give a little bit more procedural regularity to the shadow docket, like the OSHA vaccine case we talked about before. That did also trigger some jurisdictional landmines. There's a really smart article on SSRN called Shadow Docket Experiments by two very recent law graduates, Edward Pickup and Hannah Templin, that warned that depending on how the court resolve the case, they might actually exceed their jurisdiction. Because the Supreme Court only has appellate jurisdiction, they have to be careful that they're not deciding a merits case that no lower courts decided.
I'm not sure the authors would agree, but I think the court heeded that warning, may even have read the article. It means it has to be careful in this case, to only resolve the question of a preliminary injunction. So, they conclude that Ramirez is entitled to a preliminary injunction. As it stands, Texas can't execute him without letting his pastor touch and pray. But they know at the end of the opinion, that that's all they can hold and that because the case turns in part on Texas' specific execution protocol, the size of the execution chamber, what's happened in the past, a bunch of really nitty gritty, factual details, that it's conceivable that Texas could win later on the merits of it. But they have a funny warning, but if Texas wants to do that, that'll probably contribute to further delay in carrying out sentence. And the state will have to determine where its interest lies can going forward. I think that's a hint-hint, you just want to get this execution done, let them and pray and move on with it. Do you really want to fight about this?
Dan: Yeah. It's a little bit unclear exactly why Texas is so worked up about stopping this. They claim certain rationales, protecting the safety of a minister or preventing them from interfering with the execution by pulling out the IV lines or something. But those don't seem super compelling, and the court in this through the lens of determining whether Ramirez is likely to succeed on the merits, which is one of the questions that you ask in the preliminary injunction posture, does not find those sufficiently compelling to overcome his asserted religious liberty interests.
Will: Yeah.
Dan: But yeah, a lot of moving pieces here with the prison. The limitations imposed by the Prison Litigation Reform Act requires prisoners to exhaust their administrative remedies before they get to Federal Court. And so, we have to have some back and forth in the opinion by Chief Justice Roberts, by the way of about whether that was satisfied here before we can get to the actual merits of the dispute.
Will: But the court does, they include that the claims are not-- were properly exhausted, that the other procedural equity requirements are close enough to satisfied. It's actually an important opinion to have out there as a model of, if you do it this way, this is good enough to satisfy this court's various requirements. The only other thing I probably might want to flag before we cover some other cases, is an interesting concurrence by Justice Kavanaugh. He likes to write separately, period. He writes separately, partly to give his take on how the court's gotten here for all these execution cases and partly to flag how much he doesn't like strict scrutiny. The search for what counts as a really compelling interest and how do we know whether or not this is really the least restrictive means of satisfying it, is really hard.
This echoes some questions he kept asking of oral argument, like, "Does the state have a compelling interest in minimizing the risk of disruption?" And if so, isn't it minimizing it? Aren't we saying, "No, the state has to let in some risk, and how do we decide?" and so on. He ultimately concludes that you can go along based on what we know, and how convincing his arguments are. This is going to be an important window into how Justice Kavanaugh sees First Amendment cases, Second Amendment cases, a lot of constitutional litigation where the strict scrutiny test comes up. So, I predict we're going to be coming back to this later.
Dan: Yeah. There's a little bit of kind of, I don't know, if defensiveness is the right word, but the court was criticized quite heavily for the first time a case like this came up, Dunn v. Ray in 2019. It was a Muslim inmate who wanted his religious advisor in the death chamber, and that was not permitted. And the court did not stay the execution. But then shortly thereafter, they did stay at for a Buddhist prisoner. And there was a lot of criticism about whether that was consistent. There was a lot of criticism of Dunn v. Ray. I think in the second case, Justice Kavanaugh wrote an opinion trying to explain, "Why did we not do it there." He circles back to that here. He says, "For timeliness reasons, the court denied relief in the first such claim." And he's talking about what he describes as religious equality claims to reach this court. But the court then granted relief in the second such claim. And then, he's explaining how first, it was just about "don't discriminate against religion," then it was like, "No, religious liberty really demands that I have, regardless of whether you discriminate that I have the advisor there." And then, the newest claim is, "I want the advisor to be able to engage in audible prayer and physically touch me." And putting that all in context.
More generally, he does seem to really like these concurrences, where he says, "Let me just rethink this." They're not radical rethinking of the doctrine, the way that Justice Gorsuch or Thomas would offer. I see them as slightly more at the margins, making sense of the doctrines, saying, "I'd steer it in this way a little bit more," than like, "I think this entire line of precedent is totally wrong, and we should reinvent the wheel."
Will: Yeah. In some ways, I think of them as they're anti Justice Kennedy concurrences. They're like Justice Kennedy concurrences in that it's somebody sort of towards the middle of the court writing a moderate take on an area of doctrine. But like Justice Kennedy or especially Justice O'Connor would always write these concurrences saying, "We have some rule in our cases. And I just want to make clear that it depends on the circumstances. And sometimes, I'm going to do it and sometimes I'm not, and just want to warn you." Justice Kavanaugh has often tried to do the opposite, where it's like, "The rule is currently very murky. So, it seems like sometimes we do and sometimes we don't. And I'm trying to give you a consistent take on how I deal with those."
Dan: Yeah.
Will: So, he's often attempting to streamline or give a little bit more firmness to the current rule, which is, I think, a nice thing to try to do.
Dan: Yeah. And then, I said we're going to circle back to Justice Thomas. He was in the majority. He wrote the majority opinion on Tsarnaev. Here, he is dissenting, and he's dissenting alone. He starts off with that feature of his opinions on criminal and capital cases, especially where he really digs into the facts to show how heinous the crimes are. I've always found this a little troubling because on the one hand, I think there's something there in the sense that the court shouldn't just treat these as abstract questions or philosophy or to the extent that they're looking at individual interest. It's not necessarily just about the defendant. There are reasons that we have criminal law and there are people who are really profoundly affected by these. That said, I have two reservations about stressing these things in criminal cases.
The first is, elsewhere, Justice Thomas repeatedly wants to tell us that we should just be doing law, just focus on the legal rules. And how heinous a crime is, is usually not really relevant to whether you have a valid religious liberty claim or not. It's really there to get your emotions fired up about the case. In that case, it just seems to be fundamentally inconsistent with his deeply formalist jurisprudence. The other is, there have been multiple times actually, where the court has-- different justices on the court have written opinions that talk graphically about the heinousness of certain crimes in order to suggest that particular defendants are not worthy of the court's solicitude. In some of those cases, those defendants have subsequently been exonerated, not just had their convictions overturned, they have been found to be actually innocent.
I don't have a sense of whether the justices who have done that, and that includes both Justice Scalia and Chief Justice Roberts, have been cowed at all, called them to question their priors at all. But I do think that those cases-- And again, there's no reason to think that happened here. I mean the defendant admitted the murder. But more generally, it does suggest that before judges just start talking about how horrible the defendant is, they should maybe have a little bit of humility.
Will: Yeah. So, I strongly agree with the second point. And my view, is that judicial opinions should not contain any facts that are not necessary, largely because, who knows? Who knows what's really true and it's just better to stay away from those, in part for sort of intellectual humility reasons. I tend to agree with that and to the extent I have an influence on judicial opinions, that's where I think they should go. I think on the first point, I think what Justice Thomas would say, "Look, I agree with you. Let's just talk about the law. Let's not indulge our sympathies at all. But court stopped agreeing with you 50 years ago, at least in criminal cases." I think he would say that everybody else is indulgent, all the sympathies and policy concerns, that's what he thinks is going on here. And so, if we're going to do that, he wants to give a full picture of the equities. I'm not sure that charge is fair. I think it might have been fair on--[crosstalk]
Dan: That seems like it falls flat in this case. I can certainly point to other cases, where that seems maybe a fairer criticism. It just seems to fall a little bit flat here.
Will: You don't think the court's different treatment of Tsarnaev and Ramirez in part reflects their greater moral sympathy for last rites than for the defense in Tsarnaev?
Dan: I don't quite understand the question in the sense that they clearly think that the interest at stake here and the legal right at stake here is more significant, right?
Will: Do you think it's all in the law all the way down in these two cases? Or, do you think there's some moral policy stuff dong some work here?
Dan: I don't know. I'm certainly not confident that there is. To the extent that there is, I mean those moral considerations also seem reflected in the underlying positive law. In this case, we have a statute that imposes a pretty strict set of obligations on prison officials to protect people's religious liberty. I don't know whether it's fair to just say, "Well, the court is just really sympathetic."
Will: But Justice Thomas is saying that the court is playing a little fast and loose at the PLRA because they're sympathetic to guy's religious liberty.
Dan: Yeah. In terms of whether he properly exhausted his administrative remedies. The answer to which is complicated.
Will: I don't know if the charge is true. Look, maybe you're more of a formalist than Justice Thomas in the end.
Dan: [chuckles]
Will: But I think that's why Justice Thomas is doing it. I don't particularly like it either. It's not my favorite.
Dan: But if that's why he's doing it, then call them out for doing it rather than try to play the same game by saying--
Will: It's a 23-page dissent, and most of the pages are about the court's PLRA mistakes.
Dan: Right. But he goes out of his way. He says the saga of Ramirez's crimes and the ensuing litigation warrants a fuller retelling than the majority provides, and he has almost two pages of facts. Look, they're troubling facts. Ramirez basically commits this brutal murder not even for any real reason. He steals $1.25 from the victim and was on a larger crime spree. But again, it's not really what this case is about. No one is saying, in this case that you can't execute for this heinous crime. They're just saying like, "Does he get to have last rites?" basically
Will: I agree. Justice Thomas would say, "I'll stop talking about this stuff when they stopped being influenced by this stuff," I think it's what he would say. I don't think it's a good reason to do it, but I think that's what he'd say.
Dan: Yeah.
Will: Can we talk about the Navy SEALs.
Dan: Yeah. This one is interesting, maybe the most interesting thing for us to talk about today. It is a true shadow docket case, it is an application for a partial stay, which I don't really understand what that means, but you're going to explain it to me. And whereas the district court, I think, this is Justice Reed O'Connor, am I remembering that correctly, Will?
Will: I don't remember but the odds would be in your favor.
Dan: The Navy SEALs, as they said in the military more generally, you need to get vaccinated against COVID.
Will: And they haven't?
Dan: Reasonably. Some Navy SEALs do not want to be vaccinated.
Will: [crosstalk] And specifically claim a religious exemption, which the administration makes available and say--
Dan: Yeah. Although it seems like it's a make it very hard to obtain.
Will: Apparently, if you submit like 400 different pieces of paper, you have 50 steps, says Justice Alito, and the first 35 steps involve just passing the piece of paper around without even getting to the merits. My understanding of military bureaucracy is that may actually be a relatively small number of steps, compared to what it takes to do a lot of things, but fine. So, the Navy requires vaccination of all the SEALs. And there is an exemption process that apparently is very arduous, and in the end, maybe not practically available. But these SEALs who believe they have a valid constitutional objection, sued saying, "We ought to be able to exercise--" [crosstalk]
Dan: A statutory one, too, right?
Will: Yeah.
Dan: This refer claim, which, I guess I hadn't really thought about this, but I guess, governs the military as well as every other part of the federal government.
Will: That's right. They were religious freedom claim. In the meantime though, while they're unvaccinated, maybe there's a preliminary injunction saying they can't be fired or locked in the brig, one of the big fights and the question that's the subject of this specific shadow docket litigation is who gets to decide whether they deploy. So, the Secretary of Defense, the government says, "While we're fighting about this, we are not going to deploy you, at least for certain decisions, if you're not vaccinated, because we want a vaccinated team for obvious public health and mission smoothness reasons." And the district court had said, "No, no, you can't do that. That's punishing them for the violation of their constitutional rights. And you can't discipline them or take into account the fact that they are accessing their First Amendment rights," is that right?
Dan: Yeah. But I think maybe phrased that way understates exactly what happened, which is basically the district court is now ordering military officials about how they should deploy troops.
Will: Right. Or, at least, I don't think it quite got to the point where the district court said, "You must deploy Navy SEAL number one on a mission," because I don't know what the mission is, or the other reasons to decide. But you cannot take into account the fact that Navy SEALs 1 through 26 are unvaccinated and deciding whether to deploy them.
Dan: Yeah. A lot of people thought this was pretty crazy in the sense that normally, this is maybe the area where courts are the least comfortable intervening and ordering other government officials what to do. I guess the court here agrees with that. We don't have much in the way of explanation, but we have this partial stay granted, pending disposition of the appeal in the Fifth Circuit, and disposition of a petition for writ of certiorari. We do have a concurrence from Justice Kavanaugh joined by no one else, but he says, "Look, in this case, the district court, while no doubt well intentioned," I don't know I have some doubt about that, "in effect, inserted itself into the Navy's chain of command overriding military commanders' professional military judgments," I think rightly saying that this was a pretty breathtaking assertion of power. He doesn't use those words, but maybe this is how I would describe it by a federal district court. And we should really hesitate before doing that, that's really within the core of the President's commander in chief power.
Will: Yeah. I think it's very persuasive. It's a good example of the strength of these Kavanaugh concurrences. I think a part of the point is it's not that we don't have second guessing of lots of military judgments, even on also legal grounds. But normally, it doesn't happen. We don't grant ex-ante relief where courts are telling the federal government who to deploy and where and for what. Maybe after the fact we'll say that they made a bad decision and grant whatever relief is available and appropriate of the statute. But even during the Civil War, when people were second guessing various actions of Lincoln's, it wasn't-- I mean other than the famous attempts to grant habeas to people like Merryman, it wasn't like the courts would try to enjoin the war against the South. They would fight about whether or not something seized or blockade--[crosstalk]
Dan: Justice Douglas enjoined the bombing of Cambodia, didn't he?
Will: Very briefly. [chuckles]
Dan: Yeah. I think it was overturned by Justice Marshall.
Will: Yeah. It was originally Justice Marshall in consultation with every other member of the court to make it clear that-- Yeah. Well, I think that's maybe an example of an anti-canonical shadow docket ruling by Justice Douglas.
Dan: The thing that's surprising here is there are two justices who write a dissent, and I think Justice Thomas does not write an opinion, but we're told at the beginning, he would deny the application for a partial state. So, I guess there are three justices on this court, who would have said what the district court here did was okay, or at least we're not in this posture, we're not going to stop this order, but at least to the extent the government wants. And so, this Alito dissent [unintelligible 01:01:35] Justice Gorsuch.
Will: Two things about the Alito dissent. One, he makes the point that he really strongly believes in religious freedom and see what we just did in Ramirez. It's not clear to me how much daylight there really is. So, he has a little thing on page 8, where his complaint is that he would not rubberstamp the government's prose language, he doesn't want the government to win. But he is also wary, as he says the district court was about judicial interference with sensitive military decision making. So, he would limit the order to the selection of the Special Warfare Service. He would say he would limit the order to where there is a mission, where there's a special need to minimize the risk that the illness of the member due to COVID might jeopardize the success of the mission or the safety of the team members. And he claims this is what the district court really did, and so he's not as convinced that the court needs to get into it. He notes to the district court, the injunction does not require the Navy to deploy anybody. So, I can't tell how much there's really a substantive disagreement here. And how much it's more of a thematic disagreement.
Dan: But I do think, at a higher level, I find it hard to believe that the justices in dissent here would even be willing to entertain the notion that district courts can enjoin these kinds of-- even in part, these kinds of operational decisions by the military. If you weren't a COVID case, and it weren't a Democratic President, I don't say that in every case but I find this one really hard to swallow to be explicable by anything other than those kinds of considerations that came into play.
Will: I mean maybe this is just always a helpful analogy but think about the racial integration of the armed forces. Imagine that it happened by statute. Imagine Congress had just passed a statute saying, "No more segregated units. We're going to integrate the armed forces." And imagine the President had said, "Yeah, that's great. But I'm going to comply with that later, because right now, I'm worried about further deployments." I'm not sure-- I mean maybe it depends on the judge depends on the year, but I'm not sure that these justices would say, "Yeah, of course, we would just let the President segregate the armed forces, and he thought it was necessary." I think they would say--
Dan: What if the President said like, "I'm going to exclude people from entering the country, not under the commander in chief power, but under another core Article II power because I don't want Muslims," and that violates like the Equal Protection Clause. With these justices, the court also be willing to enjoin that?
Will: [laughs] I think the answer is yes, actually.
Dan: We're talking about Trump v. Hawaii, which is the case about the alleged Muslim ban, where the majority of the court lays out a very strong principle of non-interference in those kinds of executive decisions. Now, maybe you're going to try to distinguish it by saying, well, the government had come up with this-- yes, it wasn't really the Muslim ban. President Trump had said that a bunch of times, but they had come up with this different kind of rationale and sort of wanting to just look at it on its face.
Will: I'm going to remind you there were sort of three rounds of that travel ban. And the first one was the most illegal or closest to being illegal depending on where the line fell, that was quickly enjoined the lower courts and the Supreme Court did not completely vindicate the President there. If the first one had gone to the Supreme Court before the lawyers were brought into launder the whole thing, I don't think the court would have upheld it. I'm pretty sure of that. I do think once it was successfully modified and made more reasonable and give more evidence, then the court was willing to tolerate it, maybe something similar here.
Dan: Maybe so. Although at least in that opinion, the tests it lays out are quite differential. They really limit court's ability to dig deeper and look into the real reason and so forth. So, I don't know.
Will: I also don't think the President has Article II power of immigration although Justice Thomas disagrees with me.
Dan: But that cuts in my favor, right?
Will: [chuckles]
Dan: Doesn't that make my argument even stronger? [crosstalk] -definitely does have commander in chief authority of the military, right?
Will: Right. It means in that case, we're also talking about the role of the federal statute and deference to Congress' determinations about giving the President the power. Look, let's just say there's a hierarchy, unspeakable cruelty, religious liberty, and military force. And for some of the justices, religious liberty is the top of the hierarchy. For some of the justices, military force is the top of the hierarchy. But the good news is none of them think unspeakable cruelty is the top priority.
Dan: At least today. Well, we wanted to talk about, but we didn't make it all the way. So, we'll catch up on some other stuff next time. I will not give a prediction on when the next episode is, but if it is delayed, it's because Will went on another vacation I didn't know about. So, Will, lead us out.
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Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring our endeavors. Thanks especially to all the listeners who've been writing in with feedback, corrections, suggestions, or just to let us know that you're under the age of 65. Please remember to rate and review the show on iTunes or wherever you listen to it. We're still hoping to help people find the show.
Dan: And write us, pod@dividedargument.com. Leave a voicemail, 314-649-3790, and we just might play it on the show.
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