Will and Dan deal with listener feedback that prompts them to recall some of the Court's most bad-faith decisions in recent years. They then do a deep dive into Transunion v. Ramirez, the Court's major standing decision from the end of the Term.
Will and Dan deal with listener feedback that prompts them to recall some of the Court's most bad-faith decisions in recent years. They then do a deep dive into Transunion v. Ramirez, the Court's major standing decision from the end of the Term.
ill (00:17):
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan (00:25):
And I'm Dan Epps. So, Will, one thing that one of our listeners pointed out recently was the fact that in our opening, the clip we have of the marshal says, "Give your attention," but doesn't say "draw near."
Will (00:41):
They're admonished to give their attention.
Dan (00:43):
Yeah, admonished to give their attention, but not admonished to draw near and give their attention. And I had noticed that when I was putting together the clips and thought, "Well, maybe they don't say that, and I just kind of misremembered." But it turns out that they stopped saying "draw near" during the COVID era. And that's the recording I use because normally the recordings of oral arguments don't include that kind of stuff at the beginning. And so, they took that out as a nod towards social distancing.
Will (01:12):
Right. I will say it gets me every time because I'm so used to hearing "Oyez, oyez, oyez. All persons are admonished to draw near and give their attention." And every time it's missing when I listen to our own podcast, which I do, it just catches me.
Dan (01:25):
Has this been bothering you?
Will (01:25):
It has, I mean, but it's the way it is now. And I will say this is the kind of attention to detail, like removing of the "draw near," that makes Chief Justice Roberts the best chief justice of all time.
Dan (01:35):
Yeah, although it seems kind of silly. I mean, you could draw near virtually. Right?
Will (01:38):
Well.
Dan (01:39):
It's not like leaving that in would mean that people would stop social distancing and spread COVID.
Will (01:45):
Well, it's just slightly more appropriate and precise. So I assume they're going to put the "draw near" back in if they ever go back to in-person arguments. Right?
Dan (01:52):
One would imagine.
Will (01:53):
Are we going to put the draw near back in our intro?
Dan (01:56):
I don't know. I'd have to get it remixed and all that, but maybe. But I need a recording. I need a recording of that part, and I don't have a recording of the in-courtroom.
Will (02:06):
So listeners, if you can get the recording, the appropriate recording when it restarts, of "draw near and give their attention," I will pressure Dan to get the intro remixed.
Dan (02:14):
Didn't somebody smuggle in a video camera to the argument when they were doing all those protests to disrupt?
Will (02:20):
Oh yeah, don't do that. Sorry, I'm not becoming an accessory to another crime.
Dan (02:24):
Although, if they do it and then they give us the audio, we might still be accessories after the fact.
Will (02:30):
I think it's protected under Bartnicki v. Vopper.
Dan (02:32):
If you tell me that's true, maybe it's true. We'll find out. Okay, one other thing slightly more substantive, a friend of mine wrote me about our last episode, talking about AFP v. Bonta, and said sort of, "Take a look at Senator Minority Leader McConnell's amicus brief in that case where ..." And it's a brief where the counsel is Don McGahn, former White House counsel, where they go after the Buckley exception for campaign finance disclosures.
Dan (03:02):
My friend's point was that this is really part of a bigger project, which I was sort of suggesting last time, and I think you were resisting a little bit. But it does seem like maybe this is step one in this larger project, and maybe that doesn't mean that the justices themselves see it that way. We should note that. Right? That's something we should be aware of.
Will (03:21):
Point taken. Point taken. I got to say when Mitch McConnell of McConnell vs. FEC and other campaign finance cases files a brief saying, "This is step one of my secret plan to destroy campaign finance law," it's not really a secret plan anymore.
Dan (03:35):
Yeah, that's something that people are going to pay attention to, lawyers all over the country are going to pay attention to, and the justices are going to be aware of, even if they're not taking their marching orders from McConnell.
Will (03:47):
Yeah, right. And again, I'm not totally sure which way it cuts. I mean, there's this funny thing about these kinds of slippery slope arguments, which is that sometimes, being aware of them makes it easier to resist them. Sometimes we could say, "Well, it's not like the justices are unaware of the implications this might have for a disclosure, and they may or may not go down that road, but they're not fooling anybody or fooling themselves." But other times, we might say, "Yeah, it's pretty obvious where this is going."
Dan (04:15):
We'll see. I do think that alarms me more than the result in that specific case because it does seem like there is a strong interest in knowing who's attempting to influence our elected officials. Although the court said, it's united basically, giving these independent expenditures, at least, isn't really corruption, which I don't buy.
Will (04:37):
I buy it, but I think they mean something special by it.
Dan (04:40):
What do you think they mean?
Will (04:41):
I think they are defining corruption in almost normative terms when they talk about it. It's not that politicians would never do something because they were trying to get more support from their super PACs, just like they try to get support from all their various constituencies. It's just that the court sees that as more part and parcel of the thing that's inherently politics, not the thing that's like corruption. It's like the president really wants the ACLU to support him, and so he does things that will make the ACLU happy, not because he wants the ACLU's dark money, but just because he wants their name supporting him or not opposing him.
Dan (05:16):
Yeah, but it is true that if someone comes in and spends a huge amount of money on your behalf, a politician is maybe going to feel a little bit more beholden to them. There's at least an interest in the public being aware of that and being able to scrutinize the motives of politicians. We can say, "Oh, by the way, it's weird this senator is voting in this way that we didn't predict." And then you go look at the records, and it turns out that a huge amount of their donations are from lobbyists connected to this one industry or something like that. Right?
Will (05:44):
Yeah, right. And Citizens United, as we talked about, upholds the disclosure requirements-
Dan (05:48):
Yes. Yeah.
Will (05:49):
I'm just saying Justice Kennedy's vision where people spending money to support things they believe in happens out in the open and is part of the give and take of civil society makes sense to me.
Dan (05:59):
What about like a Caperton-type situation? What do you think about that? Where there's one person who ... This is the case where one guy spent three million dollars trying to elect a new state supreme court justice, basically for the purpose of having this guy, this justice, vote in his favor in an important case.
Will (06:17):
Yeah.
Dan (06:18):
In a world without disclosure requirements, maybe we just wouldn't know about that or just wonder who that mystery person was.
Will (06:23):
I think the chief justice wrote a very good dissent in Caperton.
Dan (06:27):
But I'm just saying it's a separate point. Even if you don't think that's a due process violation, don't you think that we should at least be able to know about that?
Will (06:34):
I'm not against disclosure. I'm not sure how I ended up in that corner. I do think, in some ways, if we had a world where there was no disclosure at all and even the candidates didn't know, that might be even better.
Dan (06:45):
The candidates would know.
Will (06:46):
Right. I'm not sure we can come up with that world.
Dan (06:48):
It'd get back-channeled to them, right? They would know.
Will (06:50):
Well, yeah. Although you'd imagine most people would take credit for it like, "Oh, that $10 million, that was mine." "No, it was mine." "No, it was mine." And they wouldn't know who to credit. I don't think we can have that world, but I'm just saying we should recognize that might even be the best possible world.
Dan (07:03):
That's true, but it's not achievable. And there is another Supreme Court hook here, which is that some of these organizations, and I don't remember the details, but I think it was either Americans for Prosperity itself or some organization it was linked to, spent a bunch of money in support of the confirmations of Justice Barrett and some of the other Justices, and this came up at the confirmation hearings when there were various questions from senators about, "Do you know who's funding this?" And the nominees just punted on that and said, "I don't really know. I don't know why they're spending the money." And I think there's something to those questions.
Will (07:39):
Me too, but I think it's quite plausibly true that the justices don't know who's spending the money. And if so, that's good. Now, maybe we can't trust them not to know, and so we need to live in a world of second best. Maybe that's right. It's maybe better that we all know, but I don't know who it was.
Dan (07:55):
I guess you're not admitted to the most inner sanctum of the secret conservative conspiracy. You're in the antechamber but not the inner chamber where all the cigars are smoked.
Will (08:07):
Wait, I'm where the cigars are smoked-
Dan (08:09):
No, you're not. You don't get to smoke the cigars. My friend also said, and tell me if this is too uncharitable, he said, "Will brings a irrebuttable presumption of good faith on the part of the justices." Fair or unfair?
Will (08:20):
Unfair.
Dan (08:22):
Has it been rebutted? When has it been rebutted?
Will (08:25):
When has it been rebutted? You want me to just start slinging accusations of bad faith on the air? Let me think about it. Let me think about it.
Dan (08:32):
Okay, you can come back to it at the end of the show. You can come back to it on a future episode.
Will (08:37):
I'll just say ... So, it's funny. I teach Fed Courts, all these procedural doctrines, and there's this slide over the course of time we teach Fed Courts, standing doctrine, Bivens, qualified immunity. It's usually around the time we get to some combination of Bivens and official immunity and qualified immunity. We go through various doctrinal explanations for why the doctrine looks the way it does, and students find that moderately unsatisfying.
Will (08:58):
And then I'm like, "All right, let me just put up a cynical explanation and just see what happens and do a map of why do the judges get absolutely immunity? Oh, look, the judges made the doctrine. Why do the prosecutors get absolute immunity? Well, look. Prosecutors spend all their time talking to judges, and most of the judges are former prosecutors. Okay, why do presidents get absolute immunity? Well, presidents appoint the judges." And you can do concentric circles of every official and the immunity they get based on basically their immediate proximity to judges, and it all makes sense.
Will (09:23):
And the students, I mean, they're simultaneously thrilled and scandalized to pull the curtain back. I'm not actually that some of those mentioned is right, but it's just so explanatory that I feel compelled to show it to them.
Dan (09:34):
Okay, okay. So maybe there is...It's a high bar, but maybe you're willing to at least allow the anti-good faith people to make a prima facie case.
Will (09:44):
I think the summary affirmance in Bluman v. FEC.
Dan (09:47):
Yes, I do too. I hate bad faith. And by the way, you remember who wrote the majority in that? We'll tell people who, about the backstory. You remember who wrote the majority in the three-judge district court?
Will (10:01):
I do.
Dan (10:01):
Okay. So for people who are unfamiliar, this is a case ... I actually mooted Warren Postman, who was arguing this case in the district court, a friend of mine from law school. This was a case where some really smart folks got together, and they said, "Hey, we just read Citizens United. There's a lot of stuff in here about how we're not supposed to distinguish in terms of the identity of speakers. And there's all these restrictions on how non-citizens, people have certain kinds of immigration statuses, can't spend money or donate to political campaigns."
Dan (10:32):
And if you take all that stuff in Citizens United quite seriously, it's really, really hard to justify that as a matter of First Amendment law. And they brought this case knowing that campaign finance constitutional challenges are subject to mandatory appellate jurisdiction in the Supreme Court, which means you're going to get the court to have to consider this on merits. They go to the three-judge, these special three-judge district courts, and made, I thought, quite compelling arguments.
Will (10:58):
And one of the claims, in particular, was about independent expenditures.
Dan (11:01):
Yeah.
Will (11:01):
So one of the questions was whether somebody on a recurring three-year visa can spend money to print up flyers saying Obamacare is socialized medicine or something like that and put them in the park. This is like classic speech.
Dan (11:15):
Core political speech, and the three-judge district court, in an opinion by now-Justice Kavanaugh, rejected this claim in a way that I thought was unpersuasive and disingenuous, relying on a bunch of cases about whether states can limit jobs like being a school teacher to citizens, but not cases involving whether states can deny people speech rights because they're not citizens.
Will (11:40):
Right. Now, look, I actually think for a lower court judge, it was a little more confusing how modern First Amendment doctrine and alienage interact. But here's the thing that steams me. So it got to the Supreme Court, and the Supreme Court has mandatory jurisdiction, so they can't deny a cert. Right? They have to actually decide the case. They don't have to write an opinion but have to decide the case, and they all have to vote on which side they're on.
Will (12:04):
The Supreme Court reports to us that it was summarily affirmed, no noted dissent. Look, I can believe justices who didn't like Citizens United were willing to deny Citizens United rights to aliens because they hate Citizens United more than they like equality for immigrants. I can believe that, but I can't believe some of the justices who thought Citizens United was correct. Or I can't believe all the justices who thought Citizens United was correct thought this was the right result and actually voted with the majority.
Will (12:30):
It's not that long after, I think it was President Obama at the State of the Union, claimed that Citizens United was going to unleash torrents of foreign money on our shores, which it was not, and which-
Dan (12:44):
Justice Alito said, "Not true."
Will (12:45):
Not true, and got caught on camera saying that, and the whole scene. Justices didn't like being scolded while they were there in person, unable to ceremoniously talk back. They really didn't like getting caught on camera. So there are lots of reasons that if the court had had some certiorari discretion, they wouldn't have wanted to take the case, but they had to decide the case. And I am not convinced that that unanimous decision was in good faith.
Dan (13:08):
I also thought it would have been a nice opportunity for liberal justices to stick it to the Citizens United majority and just say, "Look, if you really believe this, why aren't you going in this direction?" And yet they didn't do that, but that was a miscalculation.
Will (13:22):
Well, there they have to ... I mean, you have to decide when you have a case you don't like, when are you going to try to accelerate the contradictions, or when are you going to try to live with the damage. And the awkward ... They're going to want to dissent. They'd wanted to dissent in that Montana case where Montana said Citizens United didn't apply to Montana, and four of them still said, "Oh, well, we're okay with state deposition and nullification when it's Citizens United." So I understand it's awkward for them to simultaneously extend it in some cases and limit it in other cases.
Dan (13:51):
Another one example of what I'd call, and along the same lines, maybe bipartisan bad faith, is ... Do you remember this one, Beer v. United States?
Will (14:01):
Oof, yes.
Dan (14:02):
This is one where it's a little complicated, but basically, there had been this earlier case where some judges had sued and said, "The fact that Congress isn't giving us raises violates the constitution's requirement that you not reduce our salaries because there had been this previous commitment to give us cost of living increases." And the Federal Circuit, which had jurisdiction, got rid of this. There was a subsequent case, got rid of the later case on the basis of this earlier case.
Dan (14:36):
And then the Supreme Court did this GVR, grant, vacate, and remand, in the case that basically said, "We don't want you to dispose of this on procedural grounds. We think it's important that you address the merits in the case," but didn't really explain why. And so the Federal Circuit got the hint and then, in the second case, decided that it was a constitutional violation. Everybody got a raise. The Supreme Court justices got a raise, and then the Supreme Court denied the government cert.
Will (15:03):
Right, and the first half of the two-step is something the courts don't always get, but they say, "We decided this below, but we don't totally love the posture. So can you explain yourself a little bit more, usually as a vehicle for our review?" So they said in the remand, "The court considers it important that there be a decision on the question, rather than that an answer be deemed unnecessary and led of prior precedent on the merits."
Dan (15:23):
Did you just pull that up, or do you have that in your head?
Will (15:26):
I pulled it up.
Dan (15:26):
Okay, good, good, good.
Will (15:27):
Yeah, so the court's kind of hinting like, "Can you please lay out your reasoning better so we can get into it?" And the court lays out their reasoning, and then the court says, "All right, great. That's the answer we were hoping for. Cert denied." Now, in their defense, two justices, Justice Breyer and Justice Scalia, dissented from that maneuver. Both of them said they would have preferred to grant cert and actually hear the case rather than wink, wink, nudge, nudge the Federal Circuit into doing it for them.
Dan (15:50):
Yeah. Some of them wanted their money, and they got it.
Will (15:54):
I told you Justice Breyer was a good justice.
Dan (15:58):
Yeah, so he got some pushback on that, but let's move on. So I think the only other thing we're going to talk about today is a case that we promised to talk about last time or that we said we might talk about last time but didn't, which is TransUnion.
Will (16:12):
TransUnion. TransUnion LLC v. Ramirez.
Dan (16:15):
And so, this is a five-to-four case. It's a majority opinion by Justice Kavanaugh, and it's a dissent by Justice Thomas on behalf of him and the three liberal justices.
Will (16:27):
So it's the four liberal justices, right?
Dan (16:30):
Yeah, including Justice Thomas. Yeah.
Will (16:32):
Justice Thomas, yeah.
Dan (16:33):
Who's a lib now.
Will (16:35):
He's a classical liberal.
Dan (16:36):
Okay, yeah. And it's about standing, and it's about when federal courts are allowed to hear cases that are brought by plaintiffs alleging violations of statutory rights and statutory rights about credit report. Right?
Will (16:57):
So there are 8,185 people who are in this class who have faulty credit reports, whose credit reports violate, for purposes of the suit, the fair credit reporting act.
Dan (17:08):
Because they're put on these terrorist watch lists and stuff, and they're not terrorists.
Will (17:12):
Right. They have the same name, maybe even just like first and last name, not even middle name or something. So the court says that of these 8,185 people, 1,853 of them can sue because, during that time, TransUnion actually provided a misleading credit report to somebody else. Right? There's like a credit report in the box, in the cloud. It's an illegal credit report. It's a violation of the statute. The court says that in 1,853 of these cases, there was a demonstrated reputational harm because the false credit report actually went to somebody else.
Will (17:47):
The remaining 6,332 people, I'm going to trust the court on the arithmetic, can't sue even though their rights were violated, even though their Fair Credit Reporting Act rights were violated. Even though statute says they can sue, they can't sue because the constitution says they can't sue.
Dan (18:02):
Where? Which provision?
Will (18:04):
Yeah. Well, supposedly, this comes from Article III, I think, or maybe Article II.
Dan (18:10):
A little bit of both, mostly Article III, a little bit of Article II, I think.
Will (18:14):
Yeah. So there's this doctrine, which actually, I think, is a good sensible doctrine in its place, called standing that says that federal courts are limited to deciding cases and controversies, and that cases and controversies require the right kind of plaintiff or require the plaintiff to have, the court says an injury. And the court has now said a concrete injury, skin in the game that makes them the right person to be bringing this suit.
Will (18:39):
This doctrine has now extended. First, the doctrine extended to sometimes include times that a statute gives you a cause of action. So in a case called Lujan back in 1982, the Supreme Court, per Justice Scalia, said, "It's not sufficient that Congress has said you can sue." You don't automatically have standing just because Congress says you can sue. And in a series of cases, the court has backed itself into this position that I'll just say I think is not tenable, where Congress has given you a right. Your rights have been violated, and still, the court says, "That's not the right kind of right, and so it's not enough for you to be able to sue."
Dan (19:16):
Yeah, I'm just going to say at the outset, I thought this was one of the dumbest majorities I've read in a while. I just don't think what the court is doing here makes any sense. Basically, what the court is saying is the rule is you don't have an injury unless your injury looks like a violation of rights that was around at the time of the founding. Right? Basically, it has to be like money, or maybe like reputational harm, or maybe emotional harm or physical harm, but if you don't have one of those, no standing.
Will (19:50):
It doesn't have to be an exact duplicate, but it has to be close enough.
Dan (19:54):
Pretty close, right? And the court says, "No concrete harm, no standing." This is something that Justice Kavanaugh says twice, right at the beginning and right at the end.
Will (20:06):
Look, and that is black letter law, to be clear.
Dan (20:09):
In general, but the question is, what does it mean to have that concrete harm? But as I understand this, what this means is that congress is powerless to recognize new rights.
Will (20:21):
Well, so there's an interesting wrinkle, which we'll just mention now, which is the upshot of the case is not that you can't sue under the federal statute. It's that you can't sue in the federal court under the federal statute. But state courts don't have to have Article III, and most of them do have a broader understanding of-
Dan (20:38):
Yeah, and some do follow federal standing rules, but a lot of them don't.
Will (20:42):
A lot of them don't. Even the ones that kind of do, don't follow this wrinkle, usually. Even Texas doesn't follow the Spokeo of TransUnion rule. So, oddly, you can still enforce this state court. I'm not sure why everybody thinks that's better, but yeah.
Dan (20:57):
Potentially, you could get injunctive relief if you can show some chance that this will recur again, but you can't get damages. So basically, even if Congress says you have a right to X, you have a right to have an accurate credit report, and if you don't, you get money. Right? Even if congress says that, you can't sue.
Will (21:14):
Right. Unless your inaccurate credit report was sent to somebody.
Dan (21:17):
Yeah.
Will (21:18):
I think you could order your credit report or ask a friend to order your credit report, and then sue, I think.
Dan (21:26):
Is that a harm? I think if it's not actually being sent to someone from whom you are seeking credit, is that a harm?
Will (21:32):
I'm not sure the court asks of the 1,300 and whatever people in the first class, who it was sent to. They just say the third-party businesses. Okay, so maybe you got to go to business. Maybe you try to run a ... I don't know.
Dan (21:42):
Do federal courts lack standing over copyright infringement lawsuits now where there's not actual loss of licensing fees or something?
Will (21:51):
No, because copyright lawsuits are themselves traditional, and the court analogizes them to property.
Dan (21:58):
How about like a trespass? It just seems totally arbitrary. Traditionally, you could sue for trespass if someone was just on your property, even if they don't cause harm to your property.
Will (22:11):
Yeah.
Dan (22:11):
And so, why is the book closed? Why is the book on recognizing new kinds of harms like that closed?
Will (22:17):
All right, so here's why. So there are two logical solutions to this. One is the direction the court is logical. I'm not saying it's good, but one logical solution is to say the book is closed. It's got to be like something that we could hear back in 1789. The other logical solution, which is the correct solution, is to say, "The book is open, and Congress can write whatever it wants to in the book. If Congress gives you a right, you can sue for it."
Will (22:40):
The problem is that precedent for over 100 years, and certainly, 29 years, has closed the correct option. So once you say Congress doesn't have carte blanche to write whatever it wants to in the book, then you need some test for what Congress could write in the book.
Dan (22:56):
But there's an intermediate option. Right? Because it seems like the concern here is the citizen suit provisions. Right? That's what the court seems concerned about.
Will (23:05):
So what's the intermediate option?
Dan (23:06):
Well, let me just explain the bigger problem, which is that what they don't seem to want is to be able to create statutes that just say, "Anybody in the world can go around and sue somebody for a general violation of some statute." And the court actually, in explaining why there can't be standing here, points to examples like that, even though they seem quite different. So here is an example that the court gives on page 11 of the opinion.
Dan (23:36):
"Suppose first that a Maine citizen's land is polluted by a nearby factory. She sues the company, alleging that it violated a federal environmental law and damaged her property. So it was also that a second plaintiff in Hawaii files a federal lawsuit alleging that the same company in Maine violated the same environmental law by polluting land in Maine. The violation did not personally harm the plaintiff in Hawaii." And it goes on to explain that even if Congress says both can sue, only the person whose land was actually polluted can sue.
Dan (24:04):
Fair enough. Okay? You could believe in that position. But why can't we just say the question is whether you have been assigned something as a personal right? Because these are people who are suing, not for just a general violation, a general claim that TransUnion was inaccurate in its credit reports generally, they're saying, "You inaccurately wrote up my credit report."
Will (24:24):
That's fine, but actually, I don't think it works. So if we're going to say, as long as Congress gives you a personal right, then you can sue, then Congress just needed to ... It was just a drafting era. Congress just needs to draft the environmental law to say, "Every citizen in the United States owns a micro easement in every citizen's property that gives them the right and only the right to exclude as follows." I'm not confirming the right will be zero, so there won't be any takings problems, and then everybody would get standing to sue each other as environmental law. If you give Congress carte blanche to draft the rights, they can effectively give anybody the ability to sue.
Dan (24:58):
Maybe. I mean, that's a pretty complicated way to do it. Also, there are some political constraints too if you're suddenly declaring these easements. There are some federalism problems there. Does Congress have the power to grant those kind of easements? I mean, so maybe. It's not obvious to me that you just add a few words to the statute and you can get around that problem.
Will (25:16):
All right, I tried to write an article proving that you could. I don't know if it was convincing. This is after the Supreme Court's decision in Spokeo, which was a previous Fair Credit Reporting Act case in which the court basically covered the same question, and there they dodged it. Scalia had died while the case was pending, and that may have contributed to the need to get out of it. So here, they're answering the question.
Will (25:34):
But I'll just say, I think that the majority is not wrong to worry that if you give Congress carte blanche to decide what people's legal rights were, and that anytime you have a legal right you can enforce it in court, that would effectively do away with ... it would effectively rob citizens of standing. You're not wrong to worry about that. And I think that's fine. I don't think there's anything in the constitution that forbids de facto citizen standing, but they're not wrong to worry about that if you take the premise.
Dan (26:00):
I guess I just don't totally buy the argument that there's no way to distinguish this from those other cases. You can come up with a distinction that seems somewhat sensible to me. And this idea that there's just not going to be any new rights recognized that weren't recognized around the time of the founding ... I mean, by the way, copyright infringement and statutory damages, did they preexist? Did they exist before founding, or is it just like that's okay because we created those relatively early on?
Will (26:36):
I'm sure somebody who knows more about copyright law will write and tell us, but I'm pretty sure there were state and common law copyright suits before 1789.
Dan (26:44):
But Congress can't create a new ... Could Congress create a new form of intellectual property?
Will (26:50):
Probably because that's sufficiently close by analogy. I mean, look. I will say also in the court's defense, the court has seen enough of these suits where there are these courses of action that strike them as de facto citizen supervisions. They had one even before Spokeo involving the Real Estate Settlement Procedures Act in a case called First American Financial v. Edwards that was very hotly litigated and then digged on the last day of the term because it was the same day as the first ACA case, and they just ran out of steam.
Will (27:21):
But they've seen enough of these statutes that I think we are seeing Congress trying to give people citizen supervisions, and if they have to, by recharacterizing the rights a little bit to make it work. Now, I'm not sure why we're so scared of citizen supervisions unless we talk about Article II.
Dan (27:38):
And so, yeah, can you explain the Article II problem because the court sort of suggests that might be a problem as well, sort of buttressing Lujan there?
Will (27:48):
Yeah. So in Lujan, the first modern one of these Article III suits, there's an old, old case called Muskrat that kicks it off, but Lujan's the modern one. The court also gestures that Article II is the source for standing doctrine. I mean, the basic idea is what's the alternative to private enforcement? It's public enforcement. Public enforcement by Article II is vested in the executive branch.
Will (28:10):
And so there is potentially a worry when Congress creates a bunch of private enforcement that it's doing that as an end-run around the executive power, that Congress creates a statute. They don't trust the executive to enforce it the way they want to, and so they're vesting what you might think of as effectively executive power in a bunch of private people who don't go through the article due process, are in touch with the president's control.
Dan (28:34):
What makes it executive? There's all sorts of situations where people can sue for violations of law, and some situations where both individual citizens and executive branch can sue. Why is it a violation? What exactly is it violating?
Will (28:52):
Well, that's two different questions. What is it violating, and what's it a violation of? So what it's violating is the Article II vesting clause, the source of much confusing and controversial doctrine on Article II that the executive power is vested in the president, implicitly only in the president. So I will say this again in the majority's defense is, there is a long-standing tradition going back before the constitution of the difference between public and private rights, where the idea was public rights, rights belonging to the state, can only be litigated by the state. And therefore, the executive branch, in our constitution at least, the executive branch who litigates in the name of the state. So criminal prosecutions might be like that. Under our constitutional system, the public right of imprisoning you for a crime is vested only in the president.
Dan (29:38):
Yeah, although that's weird. Historically, there were all sorts of private prosecutions at the time of the founding.
Will (29:44):
Because I think under the private prosecutions, the idea would be the private person is still prosecuting in the name of the state. It's just that if you don't have Article II, you can delegate that state power to a private person, as much of criminal law was delegated at the founding.
Will (29:55):
Private rights, by contrast, don't belong to the executive branch. It's fine for private people to litigate them. If you quint through the looking glass, here are the things that are not crazy. So Article III does require cases and controversies. Cases and controversies did traditionally require that you have the proper parties before you. The difference between public and private rights did define who was the proper party so that if it was a public right, it should be the executive, and if it was a private right, it could be anybody.
Will (30:20):
So those three things are all true, and you could kind of see how that would lead you to something like where the court is now. It's just that there's actually no constitutional constraint on Congress taking things that used to be about public rights and privatizing them. And I think the court even has an example in here about pollution and air rights. So the public air or public lands are a public right.
Will (30:42):
And so, normally, it would be the executive who would sue to defend them if they're being polluted or something. But there's nothing that stops Congress from privatizing them the same way they privatized the Commons back in England whenever that was, hundreds and hundreds of years ago. So if they want to give everybody a little share of the air and then let us all sue to protect our share of the air, I don't see why it's the court's business that Congress has decided to privatize our public rights.
Dan (31:07):
Do you think that on the current court, there is a majority to say that qui tam suits are unconstitutional? And so, for people who aren't familiar, this is types of laws that let private citizens sue people for, let's say, defrauding the United States. And this is a harm against the government, and the private party can get a share of the money. Basically, it deputizes a bunch of people to go out and find these frauds and sue. And they've been in existence, I think, basically the entire history of the American Republic. These are something very, very early on that were authorized by Congress. And yet, there now seems to be people raising concerns about them.
Will (31:47):
Right. Yeah, so formally, it seems like they could be different for two reasons. Right? So formally, the person is suing, not in their own name, so it's not a private lawsuit. They're suing on behalf of the United States. And the Supreme Court held in a case called Vermont v. Stevens, I think. There's an ex rel. somewhere in there because in a qui tam suit, there's always an ex rel. somewhere in there. But Justice Scalia held after Lujan that qui tam suits are still okay, I think in part because of this tradition.
Will (32:14):
So I think the qui tam question will come up again because the next move to try to make these consumer protection statutes work is to say, "Okay, fine. There's no private right of action. There's a qui tam right of action in which consumers can sue on behalf of the United States for these claims." I think the Supreme Court will uphold them five-to-four because I think-
Dan (32:34):
Five-to-four?
Will (32:35):
Yeah.
Dan (32:39):
So this lineup plus-
Will (32:41):
Gorsuch.
Dan (32:42):
... somebody else. Gorsuch.
Will (32:43):
I think Justice Gorsuch would have to recognize that both the formal difference ... One formal difference between a qui tam suit is the executive branch does have control over it so that the qui tam relater has to ... There's all the-
Will (32:56):
[crosstalk 00:32:56] suits. You've got your final suit. They have the ability to take it over. They even have the ability to take it over and then drop it.
Dan (33:02):
They can't dismiss it, though. Right? They can either take it over-
Will (33:04):
I think they can.
Dan (33:05):
Can they? I thought it was like they can either take it over, or they can let you keep doing it.
Will (33:09):
They have to take it over and then drop it. They can take it over and then drop it.
Dan (33:12):
Okay. Oh, okay. Yeah.
Will (33:13):
So they can't just say, "Eh, we don't want to spend time on this." They have to come in, enter a notice of appearance, and then they can-
Dan (33:19):
Yeah.
Will (33:20):
So I think the formal difference, plus the clear originals pedigree, would cause Justice Gorsuch to recognize that that's wrong.
Dan (33:28):
But the others are not so principled as that or-
Will (33:32):
Well, I think what's going on here is that anti-evasion concern. Then again, there are some real doctrines the court is not wrong to have these standing doctrines. And they feel like if they allow Congress to do this, it will evade the standing doctrines. Now, they're right about that, and again, I think Congress is entitled to evade the standing doctrines, or it doesn't really count as evasion. But I think whatever that anti-evasion intuition has just pushed them up against the wall too hard.
Will (33:56):
And the qui tam suit will feel like a trick. It feels like a joke when you read to someone, and you say afterwards, "Well, what if I make you a special agent of the United States and pay you a bounty? Wink, wink. Which just happens to look like statutory damages. Then can I do it?" It sounds like a bad law school hypo. It's just probably okay.
Will (34:16):
I mean, I guess the other question about these qui tam relaters is, if you want to get technical about it, they are exercising executive power, and nobody appointed them or commissioned them. So on its face, you can see an Article II problem with the qui tam relaters, but they're okay.
Dan (34:31):
Yeah, I think it's okay personally. False Claims Act qui tam stuff, I think that stuff is super interesting. I've done a little bit of that when I was back in practice. We had False Claims Act cases. I've always wanted to learn more about it and get involved in those, in part because they're very lucrative. That's one of my long-term moneymaking schemes that I'm probably never going to pursue because I'm too busy podcasting with you.
Will (34:52):
Fraud against the government?
Dan (34:53):
No, not doing the fraud.
Will (34:55):
Oh, uncovering the fraud.
Dan (34:56):
Legal work, the cases are lucrative, not the actual fraud. The fraud is lucrative too, but at higher risk.
Will (35:02):
Yeah. I think often, the fraud is not that lucrative, or at least some of these claims, just the ones I was familiar in practices, more like there was a minor processing error in the construction of some nuclear submarine that caused somebody to get overcharged for a bolt. And then everybody has to come in and dig around and spend millions of dollars hiring firms to-
Dan (35:20):
Yeah. Some of them are big, though. I mean, some of them the government was defrauded out of hundreds of millions and then the time relater can get, I think, 15 or 30% of that. I mean, do enough of those, I mean, that's real money.
Will (35:32):
Yeah, fair enough. Fair enough. Probably more lucrative than podcasting.
Dan (35:37):
Yeah, especially our business model right now is we don't really have a business model. We've got T-shirts, so buy the T-shirts store.dividedargument.com. That's all we got.
Will (35:45):
Yeah, okay.
Dan (35:46):
So you want to talk about Justice Thomas's dissent?
Will (35:49):
Sure. So, it's interesting. Of course, I'll do the byline first. You mentioned this before, but it's Justice Thomas, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan joined dissenting.
Dan (35:59):
In full.
Will (35:59):
In full. And I guess Justice Breyer would have assigned ... No, Justice Thomas would have assigned this dissent. He's the most senior. So it's interesting. So the four of them learned their dissenting. I guess if you're Justice Thomas, then you have to decide to send around the memo saying, "Justice Kagan, will you write this dissent, or I'll write the dissent?" And you got to wonder what the other justices were thinking. And they're like, "Thomas is going to write the dissent?"
Dan (36:20):
Yeah, they're like, "Okay, maybe we need to write our own thing," or, "Let's just see what happens?"
Will (36:24):
Yeah, probably somebody starts drafting. And they're like, "Well, just in case we get something with a lot of citations to James Madison, maybe we need to draft something else." But, I mean, Justice Thomas is right, isn't he?
Dan (36:35):
I thought this was a very compelling opinion, and I guess I'm not a standing maven. I don't have all these cases in my head, but it didn't really feel like a Justice Thomas opinion. It felt like this is the opinion that Justice Kagan could have written. Right? Not the writing itself, but I just mean in terms of the substance. And I wouldn't have necessarily noted a problem with that or something odd about that.
Will (36:58):
Well, it's so good. I mean, it does start with some citations to Blackstone, the Chitty edition and Dick v. Carrington, and some other ... Not a lot, but maybe he moves past that more quickly, but he, I think, pretty persuasively establishes that there is a judicial power limitation. But it's satisfied when an individual asserts their own rights, so not a person in Hawaii asserting the rights of a person in Massachusetts, but a person asserting their own rights is the kind of person who's supposed to come into court. I know that's a basic common law principle and then extends forward.
Dan (37:33):
And goes through some of the examples we've already talked about. We talked about trespass. We've talked about copyright infringement, things like that, all of that, which I found quite persuasive.
Will (37:41):
So I said this on a previous episode that people forget that Justice Thomas is also just a really good lawyer because I think people's eyes gloss over when he talks about all the historical stuff, and I got some feedback from that. There were people who were like ... they'd never heard anybody say that before, or they were surprised to hear somebody say that.
Will (37:56):
So I just want to double down on this. Justice Thomas is a really good lawyer. I mean, it's true that he thinks the historical materials do a lot more work than most other people in the court, so a lot of the time, people who don't share that premise skip reading his stuff, or he's talking past them. But in this dissent is a reminder of how he can just tie those premises to the doctrine in a pretty convincing way.
Dan (38:19):
Yeah, sometimes. I mean, we've talked about this a little bit. I've read some opinions by him that are just ... They seem to get the history wrong, or they just seem totally off base about what the doctrine says. So I don't know, but he's certainly capable of writing a good opinion. But this is, I think, the second one of this term where I read it, and I was like, "What's going on here? Does he have a liberal clerk this term?" And the other one being Arthrex, which he wrote, but seemed to me like a fairly functional separation of powers opinion.
Will (38:50):
Mm-hmm (affirmative). Well, so here are two questions about that. I guess one will indulge the cynical thing that our readers seem to demand more of. Do you think that Justice Thomas feels more free to vote his conscience because he's not the fifth vote? In a way, this is a freebie for him if you thought that he, in general, loves credit reporting companies and wants to see them vindicate their made-up rights, but here the conservative side could win, and Justice Thomas can get the credit. Do you buy that?
Dan (39:20):
I could buy explanations like that generally of justice psychology. It seems like he is one for whom that's not as likely to be apt, just because he's had no problem over the course of his career going out on a limb and taking a view that the others don't take. And he seems to make a big emphasis about this idea that the job of a judge is just to say what they think every time and never make any compromises.
Dan (39:46):
And so, I'm willing to believe that there have been cases where he's like, "Okay, I'm going to go along with the team, even if it's not what I think." It's probably happened. But as a more systematic thing, I don't know. It just doesn't seem consistent with his psychology. He just seems to give DGAF about what other people are thinking.
Will (40:09):
Especially other justices.
Dan (40:11):
Yeah.
Will (40:12):
Yeah, I think that's right. I guess one interesting possibility is that it might be that when Justice Kennedy was the controlling force, the opinions were just less likely to say anything so concrete that Justice Thomas couldn't join them. Right? You're more likely to have an opinion you could live with because exactly what it was doing is unclear.
Will (40:34):
Whereas here, I mean, give Justice Kavanaugh some credit. He is owning the other end of the standing choice, as between the choice of the court is going to thoroughly circumscribe Congress' ability to privatize right to common law analogies or not. The court spent a while trying to pretend it wasn't doing that but doing it a little bit. He's owning what they're doing, and that maybe makes it clear to Justice Thomas that he can endorse this.
Dan (41:02):
Yeah, yeah. Why do you think Justice Kavanaugh is so emphatic about this? I mean, it's another one of these cases where, yeah, there's some methodological things that could explain the difference, but it is, unfortunately, one where the ideological valence winds up in a clear direction. It's like, "Are you pro-plaintiff, or are you anti-plaintiff, and you don't like people suing big companies." That does, in this case, mostly line up with where the Justices are.
Will (41:32):
I mean, it could be. I guess it's time for me to be annoyingly good faith again.
Dan (41:35):
Yeah, got to be reverent. We've got to get in our reverence for the Justices.
Will (41:40):
Justice Kavanaugh would have been, I think, just graduating law school or clerking maybe when Lujan was decided. That's the foundational ... I think he would have been clerking when Lujan was decided. Lujan is decided at a foundational time in legal thought, and most of the criticisms of Lujan are coming from a place that a conservative reformer wants triple-checked. At the time, there were still a lot of people criticizing the idea of standing at all and endorsing Justice Douglass and the tree shift standing, and all this, "We need to have no standing so that the courts can be-"
Dan (42:10):
Who will speak for the trees?
Will (42:11):
Yeah. Well, a classic line. That's really a question of legal capacity and representative status rather than a question of standing.
Dan (42:18):
Say more about that. What does legal capacity mean?
Will (42:21):
The real question for the trees are does the tree have a legal identity such that it can sue and be sued? Children sometimes don't. A corporation often does. You could create a ... If the tree were incorporated, then it could sue. If the tree is not incorporated, it just doesn't have the ability to sue and be sued. And then if the tree is incorporated such that it has the capacity to sue and be sued, then the question is, who's the representative of the corporation?
Will (42:47):
Probably Congress could create a corporation for each tree and then appoint somebody to be the legal counsel of the tree corporation and speak for the tree that way. But if they don't do that, then the tree can't sue.
Dan (42:59):
Do they have to create the corporation, or could they just say trees are legal entities?
Will (43:03):
They have to create some kind of legal personhood, and I'm not sure, especially after this, what kind of legal personhoods would count.
Dan (43:09):
And then you trigger due process clause, right? The federal government couldn't cut down a tree without due process.
Will (43:17):
I'm not sure whether that's right.
Dan (43:20):
No?
Will (43:20):
I'm not sure whether that's ... I mean, in Citizen's United, I think the court says that the reasons corporations have rights is because people have rights. And so it's really the underlying people who have Constitutional rights, and the corporation is just people vindicating that. And if there were no underlying people and it was just an underlying tree, then it wouldn't have rights. But it's an interesting question.
Will (43:42):
Anyway, I was just going to say I think there are people for whom both the Chief Justice and Justice Scalia wrote defenses of Lujan that are some of the leading published defenses of Lujan in law articles at the time. And they're defending it from criticisms that they're right to reject. And then I think sometimes you end up in the enemy of my enemy is my friend. Once you've grown up on Lujan has to be right, you can end up taking that to places where maybe-
Dan (44:08):
You're painted into a corner-
Will (44:10):
Yeah.
Dan (44:11):
... where now Congress is not allowed to create new rights. Common law courts could create new rights, recognize new rights, and all of a sudden, we're done. We're done.
Will (44:19):
Congress can create the rights, oddly, and Congress can create the rights. It's just that then the state courts have to enforce them as far as I know. I mean, I wonder what will happen when people start bringing the suits in state court, what the court will say.
Dan (44:30):
And just as if fed courts matter, remind me how that would work. So Congress creates a right. It's not enforceable in federal court. States have an obligation not to discriminate against federal claims. Do they have to allow the federal claim?
Will (44:44):
They probably can deny the federal claim as long as it's in the ... They can deny the federal claim as long as it's on the basis of an even-handed jurisdictional rule.
Dan (44:51):
Okay.
Will (44:52):
If the state court says, "We followed the Article III model," that's fine.
Dan (44:55):
But they can't just say, "We don't want to enforce federal rights," or something?
Will (44:58):
Right. And they can't say, "We have a really vigorous citizen's suit rule for state law claims, but we don't really want to hear federal citizen suits." I'm not sure whether under the current document they could have a comedy provision where they said, "Look, we'll hear whatever you want in state court, and we'll hear any federal claim that a federal court would hear." It's sort of discriminating against federal rights, although it's also treating it the same as a federal court would.
Will (45:19):
There's a case, Haywood v. Drown, that messed this whole area up over a Justice Thomas dissent. And then if the state court ... There's some questions about removal, which are a little technical, but often, it's harder with a case.
Dan (45:34):
I've heard about something happening where there's state courts that have jurisdiction, and then the defendant is removed to federal court. The federal court dismisses for lack of jurisdiction, and then you're trapped in this loop.
Will (45:43):
Yeah. That's some of the technicalities. I believe that there's a difference between whether their removal is based on the federal officer's suit or whether it's a removal based on federal jurisdiction. There are different removal statutes for different kinds of defendants, and there's a circuit split on one of them that a couple of my former students read a paper about that may have changed my mind. Anyway, there's some weird removal shenanigans that you've got to negotiate.
Will (46:07):
And then, if the state court rules against the corporation, so the state court issues a bunch of damages against TransUnion in a non-Article III suit, then TransUnion could seek Supreme Court review. And TransUnion will have standing even though the plaintiffs don't have standing. So in a way, there's no Article III case or controversy. Under a Supreme Court precedent called Asarco v. Kadish, the state court loser now has a real injury.
Dan (46:35):
It's like basically as if there's a new suit sort of in the Supreme Court.
Will (46:39):
Yeah. The defendant has to pay a bunch of money, and so their Article III injury is the state court made us pay a bunch of money.
Dan (46:46):
But TransUnion is now the plaintiff, what we used to call the plaintiff in error.
Will (46:51):
Yes, exactly. So then the Supreme Court would presumably have to review the merits of the suit, even though the whole thing wouldn't come in federal court. I mean, they could deny cert, but I don't know. I'm not sure why the court wanted to do it that way, but federalism.
Dan (47:03):
Among other things.
Will (47:04):
Yeah. It'll be interesting to see. I mean, some scholars have raised these points about state lawsuits, and one of them is cited in the Justice Thomas dissent. Maybe a couple of them are cited in the Justice Thomas dissent. It'll be interesting to see in practice whether this happens. I just don't know whether the class action procedure is in state court, whether the litigation reality is in state court will make these attractive or not. It'll be interesting to see if this actually happens.
Dan (47:27):
Well, we will see. Let's see. Anything else to talk about? Is that it for TransUnion? Do you have any more parting thoughts?
Will (47:35):
One other thing I wanted to say on the Justice Thomas question, which is, I do also think Justice Thomas is not the only conservative formalist judge to see the light on this. One really interesting example is he cites a lower court opinion by Judge Kevin Newsom on Eleventh Circuit in a case that we said earlier called Sierra v. City of Hallandale Beach, Florida. I think it's a First Amendment, or maybe it's an ADA, American's With Disabilities Act suit.
Dan (48:02):
Remind me. I remember seeing this one getting a lot of attention from the Twitter commentary, but I don't actually know all of the details of the case.
Will (48:11):
Well, I don't know if we have to go into all of the details, but I will say it's a 10-page opinion dealing with a disability act claim in pretty short order the way the Eleventh Circuit court of appeals is maybe especially want to do. But it then triggers a 57-page concurring opinion by Judge Newsom in which he goes through exactly this. He goes through how standing doctrine has gone awry. He lays out pretty much what we've been talking about, how, in his view, there are no constraints on Congress's ability to privatize rights other than Article II. And Article II does stop Congress from letting private people enforce public rights, but that's different. I mean, it's a very scholarly opinion that lays out the whole thing.
Dan (48:57):
Does he cite you? That's the important thing. I mean, does he cite you?
Will (49:01):
Does he cite me?
Dan (49:02):
Yes. Were you actually thinking about it, or were you just thinking about whether to answer?
Will (49:07):
I had to control F to remember.
Dan (49:09):
Okay.
Will (49:10):
Yeah, well, so that was nice.
Dan (49:11):
Good.
Will (49:12):
Justice Thomas did not cite me, though.
Dan (49:14):
Yeah, well, you'll get there next time.
Will (49:16):
Okay. You said it before.
Dan (49:19):
But still, nobody in a majority opinion, right?
Will (49:21):
And never the chief.
Dan (49:24):
Hm. Maybe he doesn't want to look like he's showing favoritism to his former clerk. Or maybe he just disagrees with you about everything. But maybe, in that case, he could give you a "but see".
Will (49:33):
Yeah. I think he disagrees with me about everything.
Dan (49:35):
Yeah. He could give you the Nick Stephanopoulos-type cite where it's like, "Somebody says this. We think it's totally wrong."
Will (49:42):
Orin Kerr once had the idea on Twitter of, for law professors, not just in tradition opinions, but generally trying to work up their "see, but see" ratio. I mean, Orin would be especially likely to have a high ratio of " butt sees" to "sees" because he's often the only person taking a position in a field-
Will (50:01):
[crosstalk 00:50:01]
Dan (50:01):
Like on the third-party doctrine, he was the only defender of the third-party doctrine of the Fourth Amendment.
Will (50:05):
Over and over again, and so you get a sense of somebody contrary. Important contrarians are people who have a high ratio of "but sees to sees."
Dan (50:14):
I think I might be up there.
Will (50:16):
Yeah, me too.
Dan (50:18):
Although, I think a lot of times, people just ... they don't actually use the formal "but see" signal. It's kind of there the way I see it. Speaking of law professors on the Supreme Court, I filed an amicus brief on my own for the first time in years and years.
Will (50:33):
Oh. How did you afford the printing?
Dan (50:35):
I didn't have to. This is no longer the case, but for a big chunk of the pandemic, the court suspended its printing requirements for a lot of its categories of filings, and one of them was cert stage briefings. And so this was a cert stage amicus brief in a case involving the harmless error doctrine, which is something I've written about. I wrote an article called, Harmless Errors and Substantial Rights, and I wrote just a sort amicus brief saying, "Here's why this case would be worth hearing. There's a lot of stuff about harmless error that the court hasn't really ever explained, and this would be a good opportunity to try to dig into that a little bit more."
Dan (51:09):
And it was fun because there was no printing requirement. I just did it totally on my own. I still have my templates from when I was in practice. I just wrote it up. I still remember how to do table of authorities using Word automatically generated. Super easy, it just took me a few days. But all I had to do was send one printed copy to the court, so I didn't have to pay hundreds of dollars to get it professionally printed or anything. But they've now suspended that suspension of the rules. That's over, so now, if I did it again, I would have had to do the regular printing thing, alas.
Will (51:44):
And have they decided the case yet?
Dan (51:45):
The government has actually asked for now for two extensions of time, perhaps seeing that there's multiple amicus briefs because there's my brief, there's a brief that's on behalf of Cato and the Florida Association of Criminal Defense Lawyers, and then there's also another brief on behalf of a number of other professors. And so the government extended the timeline, so now has extended it again. Their brief will be filed in September, so this will presumably be listed for conference sometime in late September or October, something like that.
Will (52:15):
Unless they get a third extension.
Dan (52:16):
The rare third extension, yeah.
Will (52:18):
Yeah. Well, you might have one on your heel.
Dan (52:20):
It's possible. That would be an interesting one, interesting fun, crim-pro case, also defrauding the government angle because the allegation in the case was that the defendant was defrauding the government by performing all of these unnecessary medical procedures. But the substance of that is not the issue. It's about whether Eleventh Circuit erred in how it used the harmless error doctrine, which isn't a doctrine. It lets the court say, "Well, yeah. There was an error below, but we think no big deal. It was harmless in this case."
Dan (52:58):
And here, the Eleventh Circuit just said, "Well, there's overwhelming evidence of guilt, so no big deal, harmless." And I think that's not the right way for courts to approach that question, but we'll see whether the court wants to wade into that.
Will (53:10):
That's great. That's great. I think there's one or two professor amicus briefs are the optimal number of professors on an amicus brief as compared to the crowds of legal scholars, some of which I've wrangled myself.
Dan (53:23):
Yeah, I generally have a policy of not joining the group briefs, and that's because if it's a brief that I'm doing on my behalf, I basically want to have written it myself or at least have it reflect the entirety of my idiosyncratic views and really be deep into it. I was persuaded by an article that Professor Richard Fallen wrote a number of years back, criticizing the practice of these law professor briefs where they'd get circulated, and then 60 people join them, and no one is really wading into the substance. They're just really like, "Well, I agree with this group of [inaudible 00:53:58] who are signing on."
Dan (53:59):
And he says, "Look, if you are signing in your capacity as a professor, we should expect you to have dug deep into it and read all the cases that are cited." And so I thought that was persuasive, and so I try not to sign those group briefs. So this is the first one I've been on in the Supreme Court in a really long time, maybe ever.
Will (54:18):
I've done some group briefs on qualified immunity, but I've co-written them, so I feel like I wouldn't have signed them. I mean, it's a little bit weird in that I ask people to sign them under circumstances where I wouldn't sign them myself. Two or three of us have really taken the lead in drafting them, and then other people sign them.
Will (54:34):
And I've done briefs with Steve Sachs and with Michael McConnell with Eugene [Varlik 00:54:39]. I've never done one myself because, among my other vices, I am not a member of the Supreme Court bar.
Dan (54:45):
Oh, why didn't you ever get admitted to the Supreme Court bar?
Will (54:48):
You want to know the real reason?
Dan (54:50):
Yeah. You didn't want to spend the money?
Will (54:51):
No. Actually, there are two reasons.
Dan (54:53):
Okay.
Will (54:53):
One is, I keep agonizing over what two mentors I would ask to be my two sponsors. And for a long time, I would have wanted my dad to do it. And then my dad died earlier than expected, and that just messed up my ability to think about who would be the-
Dan (55:08):
That's sad.
Will (55:10):
... right set of people to do it. And then at some point, I was like, "Well, this is just ridiculous. I've just got to do it." But then you got to send away for a certified copy from the state Supreme Court proving that I'm in good standing in Illinois.
Dan (55:21):
Those are quite easy to get, just FYI.
Will (55:24):
Sending away for paperwork, not my strong suit.
Dan (55:28):
I think, at least in D.C., I might even have been able to request it online. I don't know. You're a member of the Illinois bar?
Will (55:34):
Yeah.
Dan (55:35):
Okay. Well-
Will (55:36):
The last I looked, I had to send them a dollar, and that was just too daunting.
Dan (55:39):
Well, maybe you should sue for that requirement, and you have a pocketbook injury because you'd have to pay a dollar. And so you've got standing, I don't know. Maybe somebody could help you out. Don't you have an assistant who can help with this? We've got to get you admitted to the Supreme Court bar.
Will (55:55):
Yeah. But then I've got to figure out who will sponsor me, so we're back to where we started, so I don't know.
Dan (55:58):
I'll sponsor you.
Will (55:59):
Thank you.
Dan (56:00):
I'm a member. I can sponsor you. You know? Get somebody you dislike to sponsor you, so then you don't have to choose.
Will (56:06):
I wanted to be sworn in in person because that's-
Dan (56:08):
Oh, wow. That's a pain.
Will (56:10):
Well-
Dan (56:10):
Just get moved in on the papers.
Will (56:14):
Yeah.
Dan (56:15):
I'm reconsidering doing this podcast with you. You're not even a member of the Supreme Court bar. Are you qualified to weigh in on these questions?
Will (56:21):
I never thought I was qualified, Dan.
Dan (56:23):
You're implicitly representing that you are. I think that's all we have. I'm a little too flabbergasted by your failure to be a member of the Supreme Court bar to go on. And so, let's wrap things up.
Will (56:35):
Okay.
Dan (56:36):
All right, thanks for listening. As always, we're going to remind you to please rate and review on the Apple Podcast store. It helps people to discover the show. Shoot us an email at pod@dividedargument.com. Please leave us a voicemail at 314-649-3790. When we get a minute, we might try to play some of those on the show and answer any questions.
Will (56:59):
Thanks for the Constitutional Law Institute for sponsoring our endeavors. Thanks to Dan for being willing to do a podcast with an uneducated person who's not even a member of the Supreme Court bar. I predict we'll do at least one more episode in the not too distant future, but no promises.
Dan (57:15):
I think it's likely. But before you know it, Will, I mean, it's going to be season two. Right? I mean, it's almost August, and come September, we're probably going to preview the next term. And everything is just going to keep coming at us.
Will (57:28):
That's great. When are we going to break for season two?
Dan (57:30):
I think August will be a slow month for us.
Will (57:32):
Yeah, we'll see.
Dan (57:34):
We'll try to get one out in August. We'll see. But I think the new season will have to begin formally with our season preview episode. I don't know how regular we're going to be over the course of the term. I don't think we're ... we're not going to do it regularly, but we'll check in with what the court has been doing if anything particularly interesting happens.
Will (57:54):
Yeah. No, we've got a couple of special episodes already planned, and otherwise, we'll record if we have something to say.
Dan (57:59):
Yeah. It may not be a thing you want to hear, but it's something that we want to say.
Will (58:03):
Yeah, well-
Dan (58:03):
If you're willing to listen to a man who's not even a member of the Supreme Court bar.
Will (58:09):
But excessively charitable.
Dan (58:10):
Irrebuttable presumption of good faith. It maybe can be rebutted, rarely rebutted, high bar for rebuttal.
Will (58:22):
I'll bring in a list next time.
Dan (58:24):
Okay, looking forward to that.