We catch up on the nomination of Judge Ketanji Brown Jackson, a new opinion by Justice Breyer, revisit a debate about who the greatest law professor on the Supreme Court is, and talk through each of our recent scholarly efforts. Tune in to hear Dan surprisingly attack Will's Fourth Amendment views from the right flank, learn an interesting tidbit about Justice Brandeis, and get some insight into the mysterious originalist gathering in San Diego.
We catch up on the nomination of Judge Ketanji Brown Jackson, a new opinion by Justice Breyer, revisit a debate about who the greatest law professor on the Supreme Court is, and talk through each of our recent scholarly efforts. Tune in to hear Dan surprisingly attack Will's Fourth Amendment views from the right flank, learn an interesting tidbit about Justice Brandeis, and get some insight into the mysterious originalist gathering in San Diego.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude. Dan, it hasn't been quite as long as it has since our last episode but I can't say we're going at a really fast clip here. What’s your excuse?
Dan: I'm not sure we're going to anytime soon. What's my excuse? I've got so many excuses. Teaching, and still have this baby. Baby's still a baby, still doing baby stuff. And then, Danielle and I have another important collaboration, second big collaboration between 2022, other than the baby, which is we wrote an article that we're just finishing desperately, and it combined some of her favorite things. On her side, it combines interest in common law, private law, property doctrine. And my side, it's two of my favorite things, the Fourth Amendment and saying that you, Will, are wrong.
Will: [chuckles] Really?
Dan: Yeah, I'm not sure which of those I like more.
Will: What am I wrong about now?
Dan: Well, many things, but in this particular instance, so for listeners who are not deep into theory of the Fourth Amendment, Will, and friend of the show, James Stern-- James Stern, who clerked for the same judges and judging justice I did, after right after me. Good friend. You wrote this article, gosh, was it four years ago now?
Will: Six, maybe. Six, I think.
Dan: Okay. Wait, going back. The Positive Law Model of the Fourth Amendment, and correct me if I'm wrong, but your claim is the kind of test for whether government conduct implicates the Fourth Amendment should be dictated by whether the police have done something that would not be permitted by a private person under the positive law of the relevant jurisdiction where the government conduct occurs.
Will: Exactly. Like breaking into your house is the easy case that everybody knows is search procedure, and then we try to generalize that to breaking all other laws.
Dan: Not just laws, like administrative, like everything. Any sorts of law, like things about trash, rules about trash pickup, about whether other people can go pick up trash or whether only the municipal trash collector is allowed to have a monopoly.
Will: We have some footnotes we have to deal with some obvious weird extensions, like if the police officer speeds in order to get a good look at the driver before pulling them over or to pull them over, does that count? But, yes.
Dan: I forget what the answer is.
Will: I think we stuck a proximate cause test in there. So, it depends a little bit on the nature of the speeding and its connection to the arrest, I think, is what we said--[crosstalk]
Dan: Hmm, I have to--[crosstalk] Yeah, I don't know where you pulled that one out of the language of Fourth Amendment. The idea is you guys almost nailed it. It's a really clever idea. It's a great article, one of my favorite articles.
Will: [crosstalk]-- stop there, I think you could just stop at that.
Dan: I'm never going to stop there about anything. There's lots of things you do, Will, that I like but I'm going to always give you the but. But I think as a theory, there are parts of it that are hard to justify. Your theory is whether something is a search, literally whether something counts as a search under the Fourth Amendment turns on this question of positive law. And our theory, you'll see why this combines our two interests. Danielle, she has no particular interest in saying that you're wrong. She's totally fine with you, just because I said it, that’s me.
Will: I've always liked Danielle.
Dan: Yeah, she's fine with me saying wanting to say that you're wrong. So, she's obviously on board with it. But our claim is, look, you're trying to make sense the Fourth Amendment. Fourth Amendment says, "Bans unreasonable searches and seizures." What is unreasonable mean? It's actually focused on that word. Well, there's a lot of reason to think that founding generation would have thought reason is kind of tied up with the common law. And there's also reason to think that at the time, they would have thought, the common law, it's not just the positive law of any jurisdiction. The common law is what some legal scholars have called the 'general law', something that it's law that's not under the control of anyone sovereignty, it's the set of principles. You look at different jurisdictions, and there's sort of some core there. Our claim is that is actually what courts should be doing.
And that you, Will, are coming at this with a post Erie understanding, which is the 20th century case that says, "Look, there is no common law, the common law. There's just laws in particular jurisdictions." In addition to having lots of benefits and actually being more consistent with, I think, what the court has done when they've looked to the law, there's cases where Justice Scalia says, "Look, let's not look to reasonable expectations of privacy. Let's look to trespass," and things like that. But he's not looking to trespass of Florida trespass law, he is not looking at specific positive law, he's looking at these more general concepts. But more consistent, has some pragmatic benefits. I'm not an originalist, but maybe actually, I can come-- cutting back on your originalist bonafides, Mr. Originalist here. Maybe you're not an originalist when it comes to Fourth Amendment theory.
Will: Yeah. Are you trying to out originalist me? You're saying that I'm too 20th century, I'm not sufficiently 19th, 18th century. And you're saying I'm not textualist enough?
Dan: Yeah.
Will: It's like, "Will is wrong, because he's not sticking close enough to--?"[crosstalk]
Dan: Yeah, this is what makes it so delightful, I'm knifing you in the back where you least expect it. You're expecting me to come in over the Living Constitution, let's be mushy and cats, and reasonable expectation of privacy, I'm coming around-- It's not just because I want to say you're wrong, I think it makes a ton of sense.
Will: Look, this is obviously the best way to be knifed in the back by you for not being originalist enough. If that's how I have to go down, I'll live with that.
Dan: You're not going to go down. This is the nice thing about our profession, is it's actually great to be criticized. It's way better to be criticized than to be ignored. That's the fear, is you just send things out into the void. And everyone says, "Okay, whatever." Conversation will continue, and I'm sure that you will, perhaps on this podcast, tell me why I've gotten it wrong. But anyways, article, Fourth Amendment in General Law, we will be making it available online at some point, send it out to journals. That was fun. And now I have a little bit more time. Hmm?
Will: I think it hasn't been picked up by a journal yet, it's looking for home.
Dan: It is looking for home.
Will: Well, maybe you'll to have to write one of those online responses and whoever picks it up.
Dan: Okay, that's a deal. It's enforceable contract. You also have a piece that you just placed, it's severability, am I right? Tell us about that.
Will: Yes. Severability First Principles. I don't know, do you have views about severability, Dan? Can I say you're wrong too? Or, do I just have to--?
Dan: I probably have some instincts. Once you describe it, I will tell you whether they line up with my instincts, but I have not written those down and don't particularly expect to because it seems like an interesting enough topic, but not one that's at the top of my research agenda. Although maybe you will say something that I think is so wrong that I can write a response. I'll say, "Look, I've never written anything about severability. I don't teach fed courts, but Baude is so wrong. I'm going to have to enter the fray." So, lay it on me.
Will: All right. Well, so everybody is wrong, other than Justice Thomas, and maybe John Harrison and Kevin Walsh.
Dan: This is kind of predictable from you.
Will: [laughs] Even Justice Gorsuch might be wrong. That pains me to write. That's the hardest part of the article to write. The basic problem of severability is--
Dan: Wait. Where is he on your hierarchy of favorite justices if you're willing to say?
Will: Where's Justice Gorsuch?
Dan: Yeah, number two, number one, number three?
Will: Tied for number one.
Dan: How many are tied for number one? Three or four? Four.
Will: Six? Five?
Dan: Six, now. Okay. Yeah. Five, maybe, because you can't really bump the Chief. I was going to think that the four self-described originalist would be tied for one.
Will: I think there are more than four self-described originals.
Dan: Has the Chief said he's an originalist?
Will: No.
Dan: Has Alito said he's an originalist?
Will: Yes.
Dan: When McDonald--? I mean, because he also makes fun of originalism.
Will: He just made fun of the original intent style of originalism. Or, we'd have to ask what James Madison would have said about videogames, which has been wildly--[crosstalk]
Dan: I was thinking, Fourth Amendment, he also makes fun of this idea of--[crosstalk]
Will: The tiny constable?
Dan: Yeah, the tiny constable for the GPS, a case about GPS tracking, he says, "It's ridiculous to look back to 18th century tort law. We should do the mushy, reasonable expectations of privacy enquiry."
Will: Justice Alito said in several interviews that he's an originalist. I think there's some questions about where's the precedent and there are some labels people apply, like Burkean originalist or things like that, but he said he's an originalist.
Dan: Do you think that's accurate? This is just getting very discursive, but it's a fun conversation. I think that seems like maybe a less apt label for him compared to some of the others, certainly than Thomas, Gorsuch, Barrett.
Will: The conventional view that puts Thomas and Gorsuch was the most originalist. Barrett and Kavanaugh slightly less originalist, although definitely self-described originalists. And then, people like Alito and Kagan, and the Chief kind of trailing them and then Sotomayor, like another plane.
Dan: Yeah, Kagan has endorsed textualism.
Will: Originalism
Dan: Yeah. She's specifically originalism.
Will: I have a confirmation hearing. She specifically endorsed the view that in deciding what level of generality we should interpret the text at, we should ask what level of generality the framers wrote it at, what they intended it to be.
Dan: Intent. She's an original intent person?
Will: She didn't say intent exactly, she said what they commanded. She's an original meaning person in a way.
Dan: Yeah, this is interesting thing for the-- again, just going on tangents for listeners who are maybe not deep into originalism, which is when you say originalism, there's different things you could mean by that. You could mean the court of early version was, "Let's look at what the founders thought. Let's read their secret diary and figure out what they thought." I think almost everybody doesn't on the original side even thinks that's wrong now. Is that fair?
Will: Almost everybody. Yeah.
Dan: Yeah, almost everybody. And then there's original meaning, what did this mean, to people ratifying it at the time, seems more defensible. You have this original law, you look at how [crosstalk] it kind of lawyers had sort of been understood to change the law. Right?
Will: Yeah. And what legal doctrines would have been used or interpret it at the time.
Dan: Yeah.
Will: I think it's actually a mistake to put all the justices we just named on sort of one hierarchy, because I think there's just some cross-cutting issues, like Justice Thomas and Justice Gorsuch are less bound-- believe less in precedent than anybody else. So, they bring their originalism out and use it in overall cases more often than others.
Dan: Justice Barrett, we're not totally sure, or she is on that, right?
Will: I mean she wrote some about of a presser, and she just descriptively has not yet sort of--
Dan: Her scholarship I took before she got on the bench to mean that she was not going to be a big believer in stare decisis.
Will: Yeah. Her scholarship is pretty nuanced. It has one interesting theme in the scholarship that she's picked up on the bench is, of course, that since the court picks its own docket, a lot of the time, stare decisis does its work just because the court is never going to grant cert on whether to overturn the legal tender cases or whatever. She's done that in some of the shadow docket cases.
Dan: Yeah.
Will: Let's just [unintelligible [00:11:33]. And then, Justice Alito, I think, part of what marks him is just he is very committed to not being a chump. It's just another theory of precedent, in a way. He's very committed to the view that if this doctrine doesn't apply for the goose, then it also doesn't apply for the gander, and vice versa. That's popped up in a lot of famously strange concurrences.
Dan: That comes up in Janus, right?
Will: It comes up in Janus. [crosstalk] originalist argument.
Dan: Which is the union dues case.
Will: Yeah. Where Eugene Volokh and I actually tried to enter as the pro-union originalists.
Dan: Yeah, I like that. I like you guys had--
Will: Justice Alito did not like it.
Dan: No, it didn't go anywhere.
Will: But one of his points was that the unions in the case were themselves against originalism in other cases. And so--[crosstalk]
Dan: It does not really make sense as a--
Will: It makes sense. It's just a different question about judging, instead of look at game theory question, or a question of unilateral disarmament. I feel like we encounter a lot of the time back on our discussions about court reform, we have people that say in a first best world, I'd be deferential to Congress, but if they're not going to be deferential, then I'm not going to be deferential. It's the same kind of thing.
Dan: It seems like I would think you would believe that the judge should follow what their view of the law is, right?
Will: I mean, I do--
Dan: And say, "Well, I will come up with-- because you're a liberal living constitutionalist. I will now be a conservative living constitutionalist. Or, a common good theorist."
Will: I don't think you should become a good theorist. Justice Alito also in his unrecorded speech at Notre Dame, declined to embrace common good constitutionalism, according to my source.
Dan: Which is a topic of a new book by Adrian Vermeule, which I just got in my inbox and I'm looking forward to reading. Maybe we will discuss that on a future episode. I imagine you have some views about that. But can we talk about your severability thing?
Will: Sure. Okay. The question of severability is just when a law has some part that's unconstitutional, what do you do with the rest of it? The conventional doctrine is that more or less you ask, "What would Congress have wanted us to do if they had known that they had a part of their law being unconstitutional? Would they wanted to keep all of it? They want to get rid of all of it? They want to do something slightly more complicated?" But this doctrine does not-- nobody's very happy with how this doctrine applies just as the practical level. And then, it's also as a theoretical matter, it's asking a question that we pretty much have stopped asking in federal interpretation, like even the judges were not-- Justice Gorsuch agreed that you're no longer supposed to ask questions like, "What would Congress have wanted if it had thought about a thing that we know that it didn't think about?" That's just both conceptually not a very coherent inquiry, and practically not something judges are good at. They just end up finding themselves there.
Dan: Also, the way the question was framed seems to presuppose a view about what courts are doing in constitutional adjudication when they're exercising judicial review. My guess is not what you think that they should be doing. Which is judges aren't like-- they're not going with a red pen and striking out parts of laws. They're not just taking stuff out of the US Code. What they're doing is they're saying in this case, "This law purports to do this, that's not constitutional. And so, we will not enforce that or we will say that you have a remedy that this law can't be enforced against you," or something like that. They're not exercising--[crosstalk]
Will: That's exactly right. My article is basically, if you start from the two formalist premises that law is based on what Congress enacts, not just their hopes and dreams, and that what judges do is just try to apply the law in the cases before them, not wield what one scholar has called a writ of erasure to erase statutes in the books. [crosstalk]
Dan: What scholar?
Will: Jonathan Mitchell, have you heard of him?
Dan: Ah, yeah, we've talked about this article before. This is the theoretical underpinnings of the Texas abortion law. So, it sounded like this high academic theory actually has some very consequential-- has important consequences, real-world consequences. I think I agree with the second foremost principle, maybe less than the first one. I want to think about that, but there might be situations where we might say, "What is the way to understand this law, how it should operate under these circumstances?" I don't know. It doesn't necessarily have to be an intent question.
Will: That's actually part of one of the surprising reveals of the article, I'll just say now, is that even formalists who think they reject congressional intent, often find themselves unable to resist using it in a subset of cases. For instance, about a third of the article's about what happens when the constitutional problem is really an unconstitutional combination? Two different statutory provisions, either one of which alone would be okay but together, they're not okay. Because then the standard formalist instincts in a lot of these cases have just ignore the unconstitutional one, doesn't work, because it's like which one do you ignore? And congressional intent, more objective forms of intent, it could be one way you decide. Look, if we can't have both of these, which one is supposed to be enforceable? Which one's supposed to be unenforceable?
Dan: I have it in my head, what's a case where that happens, the conflict?
Will: Easy One is PCAOB v. Free Enterprise Fund, the peekaboo, where this--[crosstalk]
Dan: The for-cause, two layers of for-cause removal.
Will: Right. You can't have two layers of for-cause removal. So, which layer do you have?
Dan: Yeah, that's interesting.
Will: Lots and lots of cases have this form. So, a bunch of the recent cases, like the removal cases about the CFPB, and then the second one about Fannie and Freddie are like this, because on the one hand, the person is given a bunch of broad executive enforcement powers. On the other hand, they are given for-cause removal protections. And everybody agrees you can have one of those, not the other. So, which one do you get rid of?
Dan: So, do you have a way to figure that out?
Will: I have three. Part of the--[crosstalk]
Dan: Three different ones that I to choose between or?
Will: Yeah. The point is that--
Dan: You've got to give us the answer.
Will: Well, the point is that you figured out through statutory interpretation, and this is obviously an area where you have to interpret the statute on a question where it doesn't actually say what to do. Depending on exactly how textualist you are, just how far you reject the no intent premise, there are different ways to solve it. If you're a soft textualist, you think like, generally should focus on text, but intent could be useful. On questions where the text is really very silent, then you might well use intent to ask which one you should keep. For the Justices who aren't, which includes some of the Justices on the court are grappling with this problem, they instead have to make use of the canons and the substantive canons, which is what they do that has all the standard problems with substantive cannons. So, the back half ends up being a kind of acid test for formalism, like how does formalism handle hard questions?
Dan: Basically, it sounds like you're not totally able to solve some of the hard issues here. This is a problem that even thinking about it from the right-- what you see as the right premises does not just kind of make these problems go away.
Will: Yeah, it doesn't have one unique solution. The right way to put it is, any given Justice called me and said how to resolve an unconstitutional combinations problem, I could tell them given their own methodology how they should resolve unconstitutional combinations problem. But don't adjudicate between whether Justice Gorsuch or Justice Kavanaugh is a better Justice.
Dan: This is consistent with your insistence that you have six tied for one, tied for first. Coward. I don't believe that's what you really think.
Will: I call it--[crosstalk]
Dan: You just don't want--
Will: One of the--
Dan: You just want all of them to fight you.
Will: [chuckles] Not [unintelligible [00:19:12] on that score. One of the consequences along the way is, I talk about the California v. Texas, the Affordable Care Act case that we talked about, and Justice Gorsuch was wrong to think that the Affordable Care Act was inseparable, although Justice Thomas and Justice Gorsuch--[crosstalk]
Dan: As a matter of the statutory interpretation?
Will: Exactly.
Dan: Okay.
Will: Once you see that in severability, it has to just be a question of statutory interpretation and look at the Affordable Care Act through the lens of interpretation that Justice Gorsuch and Justice Thomas believe in. There's no evidence that any kind of inseparability.
Dan: Okay. Well, I will look forward to reading that, and that is forthcoming, Virginia Law Review?
Will: The Virginia Law Review.
Dan: But is not necessarily in yet, correct?
Will: That's right. It'll go up pretty soon. I presented at a conference in San Diego about a week and a half ago and I'm trying to input all the--[crosstalk]
Dan: This is the originalism, the home of originalism, right? The San Diego conference.
Will: Indeed.
Dan: That in David Pozen's parody of Larry Solum's originalism articles, he did an April Fool's parody. Larry Solum used to do these really, really funny April Fool's parodies of our academics. And David Pozen said the sanction for not being originalist enough is exiled from San Diego.
Will: On the one hand, I will say, you don't have to be originalist to go. Eric Segall, entrenched critic of originalism, also was there all weekend, and letting us have it, blogged afterwards about what an amazing experience it was, and how grateful he is for the kind of free exchange we have. But it is still true that if it didn't happen at San Diego, did it really happen in originalism?
Dan: [laughs] Well, we all have our own ideas of what counts as a good time. Listeners, you make your own judgment as to whether that one-- that weekend in San Diego sounds like what you'd want to spend your free time doing, but more power to you, Will. Okay, we'll look for that one and we will look forward to sharing my piece once ready to. A friend of the show, Orin Kerr, I'm sure, is going to have views but, Orin, I'm waiting to send it to you until we do one more round of revisions on that.
Anything else? We're just going to fill things out because we actually don't have that much-- unlike the last time, we actually don't have-- there's some things that have happened, but not necessarily as many things that we have lots of things to say about.
Will: That's right.
Dan: Okay. Big thing that happened.
Will: Hmm. Oh. Justice Breyer wrote an opinion.
Dan: Oh, yeah. That's the one everyone was waiting for.
Will: Is that the one you're thinking of?
Dan: Definitely. What was this about?
Will: Justice Breyer, the Supreme Court issued one opinion last week, case called Unicolors, Inc. v. H&M, which is an intellectual property case, sort of. It's a case about basically the definition of intent in the copyright statute. It's an opinion by Justice Breyer. So as soon as I read it, I thought, "Aha, this a swan song. He's finally going to show Dan that he's really an [unintelligible 00:22:16] over the ages." The question is when you obtain a registration for your copyright, and you put some claims, some information in your registration that is inaccurate, when does that impair the validity of your registration? And in particular, if you make a mistake of law, that is if you say something about previously valid copyrights that you're wrong about because it's not some factual mistake, it's not you didn't know that something was out there but some legal mistake, you didn't know whether they were valid or whether there's some sort of defense, does it count? Question is, when does that invalidate your registration?
Dan: Walk me through. Why it should invalidate your registration? Because the copyright office relies on it in some way?
Will: Yeah, you need to have an incentive to get your story straight. Let me just give you, because this is Justice Breyer, part two, the subsistence of part of his opinion has the perfect Breyer-esque introduction.
A brief analogy may help explain the issue we must decide. Suppose that John, seeing a flash of red in a tree says, "There is a cardinal," but he is wrong. The bird is not a cardinal. It is a scarlet tanager. John's statement is inaccurate. But what kind of mistake has John made? John may have failed to see the bird's black wings. In that case, he's made a mistake about the brute facts. Or, John may have seen the bird perfectly well, noting all of its relevant features. But not being much of a birdwatcher, he may not have known that a tanager, unlike a cardinal, has black wings. In that case, he's made a labeling mistake. He saw the bird correctly, but does not know how to label what he saw. Here, Unicolor's mistake is a mistake of labeling.
And they go on. So, the question is [crosstalk] that's the case.
Dan: I'm struggling to see how that analogy helps.
Will: That analogy just sets up the problem.
Dan: Okay.
Will: Right. And the problem is basically, "Do we expect people who register for copyrights to be ornithologists"
Dan: Where ornithologist is defined as being a lawyer, making the legal conclusions?
Will: Yeah. [crosstalk]
Dan: Okay.
Will: Mostly, I liked the analogy. The answer, by the way is, no, you don't have to be an ornithologist. So, if you make a mistake of law, okay.
Dan: And the analogy is you get kicked out of the birdwatching club for the first mistake, but not the second? Sorry, I'm just having trouble seeing how it tracks, but maybe it doesn't. I would like to dig deep on analogies to see like how far they go. And this one sounds like maybe it doesn't take us--it just gets us through the door, but doesn't take us further.
Will: Yeah, don't do that. Here's the other reason I wanted to mention it other than-- because I know you love Justice Breyer's opinions, is there's a dissent, by Justice Thomas, Justice Alito, and Justice Gorsuch as to all but part two. The dissent, at least the part that Justice Gorsuch joins, the bulk of the dissent doesn't actually disagree with the majority. Their main argument is not that majority is wrong about the definition of knowledge, whether knowledge requires what it requires. Their complaint is that the court was the victim of a bait and switch.
Dan: Hmm.
Will: "That the original petition for cert asked the court to grant cert on the question on which there was a circuit split. Whether or not the federal statutes knowledge element requires "indicia of fraud." And yet, after having persuaded us to grant certiorari in this issue, Unicolors has chosen to rely on a different argument in its merits briefing. It no longer argues that the statute requires fraudulent intent, and instead proposes a novel actual knowledge standard, because I would not reward Unicolors for its letter domain, because no other court had before today ever addressed whether the statute requires actual knowledge. I would dismiss the writ of certiorari as improvidently granted".
Dan: Okay, this is interesting in a couple of ways. One is trying to figure out exactly what the difference is between those two things. So, basically, one option is did you actually intend to deceive? Versus, did you know that what you're saying is inaccurate?
Will: Mm-hmm.
Dan: There is a difference. I like this case, because it seems to be like playing with [unintelligible 00:26:23] criminal law concepts. And then, in part two, Justice Thomas' opinion, he's actually citing a case that I taught last week in criminal law about mistake of law, Cheek v. United States, which is in the context of criminal tax enforcement, where you say there's a duty-- sorry, wouldn’t we say that you can't be punished for criminal tax evasion unless you knew that you were violating the tax laws? Very unusual. It's not how these things usually work. But they're doing something similar, I guess, on the copyright side. But it raises another question of like, how much flexibility do you have as a litigant in the Supreme Court to shift your position? Because you can obviously make arguments that you didn't make in the petition. Whenever you write a merits brief, they spend a couple months working on these, they come up with really clever arguments that maybe weren't apparent when they wrote, the shorter cert petition. But when does that switch slide into actually just arguing for a position that you didn't get the court to grant cert on?
Will: Yeah, exactly. On the one hand, we want litigants, people to bring their best arguments to the court, because once the court decides the case, it's going to make nationwide precedent. We're never going to look back and say, "Well, that case wasn't very well. So, it doesn't really hold that," or something. We need to get it right. But there is this obvious chance of gamesmanship, is that to get the court to grant cert, to get cert pool clerk to pull it out of the stack, you can just show them this is something that a lot of circuit courts have disagreed about and just split, but that may not be the best argument to win. So, I assume what happened is they had to sort of acknowledge circuit split was their ticket into the court. But then, once they started thinking about what arguments are actually going to convince the court to interpret the statute our way, they had this different argument.
Dan: Yeah, that doesn't strike me as necessarily bad, because sometimes it turns out that the circuit courts have kind of seen an issue along one axis, and then the best way to interpret it is maybe something in the middle or something that kind of looks at some slightly different factor. But the one thing Justice Thomas notes, which maybe is worth hearing about, is that this is not something that other courts, lower courts have had a chance to really applying on. He says that the court does this without permitting any other court in the country to first consider the question. So, basically, the court likes to kind of let legal issues percolate, see what lower court judges say, see how the arguments develop so they can really be sure they're resolving a question with all the appropriate information.
Will: Right, because you could imagine-- I mean, this does sometimes happen. The clever person arguing the case is like, "Hey, I have a crazy new theory about how to interpret the statute that nobody's ever come up with before. I bet I can sell this to them." And on its face, it's pretty plausible. But then once you learn as a Justice that nobody's ever considered this before, and you only have a few months to think about it and all its implications, you're like, "Well, I'd kind of like it if it's been put to the-- if somebody to kick the tires on this for a while just so we can flush out like the problems I'm not thinking about."
Dan: The Katz test, the reasonable expectations of privacy test, which actually comes from a concurring opinion by Justice Harlan in Katz, that wasn't even presented in the briefs. That was just something the advocate just kind of threw out there at oral argument and that has defined-- Then the test for Fourth Amendment law for the last 55 years. So, is it bad? Is it good? I don't know.
Will: Well, my sense is this used to be more common than it is. And this is part of the other things, of course, sometimes the reason the court accepts these pivots is because they don't know the answer, or they don't like the answer to the question presented very much. But this other way of answering it allows them to build a consensus or get the majority, it makes more sense to them.
Dan: Yeah. I think you're deeper into this one than I am. So, I want to see what you think. But I guess just thinking about in the abstract, it seems like this isn't clearly something that's totally out of left field. You're arguing about what the kind of-- this is not criminal law, but what we call like the mens rea is, like what the mental state requirement is here. Sometimes maybe it's fraudulent intent, or maybe it isn't, but maybe there's something in the middle. Is this that different? Or is this sort of orthogonal to those questions?
Will: I think anything on the spectrum of how much you're swapping in the QP, this is not the most egregious version the court has seen. And in some of the more egregious versions that Justice Thomas mentioned, the court has dismissed the case is improvidently granted. As I understand it, it does seem a little bit like a pivot or a swap from what you might have thought was there to what you have now. In the past, the court had shown at least a little bit of interest in actually trying to deter that kind of conduct by dismissing the cases improvidently granted. Another thing that happens in several of these cases, I think it happened here, is that the lawyer who petitioned for cert is not the same as the lawyer who took over the case for the merits brief. And that's obviously the-- again, part of the reason you have a new Supreme Court expert take over the merits briefing is they might be able to frame the case in a different way that's more helpful.
Dan: Yeah. But it puts lawyers in a tough position, which is like you might think, "Gosh, I don't want to argue this original position, because I just really looked at the law. There's just no way we can win on that." Maybe it's a weak argument. But you also know that if you make the argument that's more persuasive, you're now increasing the risk that the case petition gets dismissed. Here, unclear whether this was a conscious gamble, or they thought it was going to be fine. But here, that seems to pay off.
Will: Yeah. Right. I think the truth is, that's probably what you wanted for the court, is you don't want to rule, you want a standard because sometimes, again, the court will do a better job with the case reframes it. But you don't want this happen all the time, because then you lose control of your own docket, and you're constantly answering these novel questions. So, you want to refuse these invitations often enough that people know it's a gamble. They don't just think like, "Oh, we have total freedom to make this case whatever we want to.
Dan: Yeah. But there does seem a difference between making an argument that the lower court is wrong on its statutory interpretation, versus introducing a totally new legal issue. If they were like, "Yes, courts didn't address this," but this is actually a due process violation. I mean, that seems more troubling than then kind of the court saying, "Well, here's a different way to read the statute," or an advocate saying, "Here's a different way to read the statute."
Will: Yeah. Although even think of the abortion case, Dobbs that the court granted, not a question that was explicitly should Roe v. Wade be overruled? And then when it got to the court, it turned into should Roe v. Wade be overruled? They were on the same topic, it was abortion constitutionality arguments.
Dan: But you might think in that situation, the court could say, "Look, there's no way for us to decide this legal issue without resolving this antecedent issue," or something like that. And there certainly the court has more flexibility to address issues that are not presented by the advocates than the advocates do. The court, as long as it's supported by the record, they can.
Will: But then, if the court's going to do it, we want the advocates to be able to talk to them about it. It's simple, you could imagine saying getting a statue interpretation question and saying, "Well, it's just hard to think but the statute without acknowledging that the whole thing's unconstitutional," or vice versa. Constitutional question, where you say, "Well, it's harder to really understand this constitutional challenge, because people are kind of confused with the statute does." So, you can see how you're toggling across those two things.
Dan: Yeah. Even if the court comes out with something that nobody realized that they were thinking about, that increases some risk of error, because the parties can maybe point to, "Look, if you interpret the statute this way, that has all these bad consequences you're not thinking of." I don't know, I'm not sure there's an easy answer here. But the court seems to conclude that this was okay, majority does. Why do you think Justice Gorsuch doesn't join part two of Justice Thomas's opinion where he sort of says a couple things. He says the thing, I noted about how no other court in the country has addressed this specific argument, but also says that they're using is really out of left field, an actual knowledge requirement is something that's out of left field, and something that is not really-- it's sort of throwing cold water in the actual substantive legal issue.
Will: It could just be he doesn't have a view. My guess is, he's sympathetic to the majority on the merits, that Justice Gorsuch often does have a kind of different approach in a lot of criminal cases than some than Justice Thomas and Justice Alito might. So, he might see it as less anomalous to have more generous mens rhea requirement, but he still cares about the bait and switch principle.
Dan: Yeah. Why do we think this seems to have an ideological slant? If you're to say Justice Alito, Thomas, Gorsuch, are the three most conservative justices, you think that's fair?
Will: People say that. I'm not going to--
Dan: [chuckles] Oh, come on, Will. You can say anything.
Will: I mean Justice Gorsuch has Bostock and McGirt.
Dan: Yeah.
Will: [chuckles] [crosstalk]
Dan: Okay, but unbalanced, but this does seem to-- and then some people have said there's these three kind of-- There is Chief Justice Roberts and Justice Kavanaugh and Barrett in the middle of the court, controlling the axis of power, and then the three liberals, and then the three more conservatives. And it does seem to break down on those lines. I couldn't really figure out why.
Will: Me neither. See, I couldn't figure that out. I couldn't figure out if that's because of criminal law presumptions, if there's ideological slant to copyright registration, that I'm asking if there is because there's everything that I don't totally get, or whether it's specific skepticism of this layering tactic. Sometimes, conservatives--
Dan: They didn't tell you at San Diego. They didn't say like, "This is the secret reason why--" [crosstalk]
Will: This case was not discussed at San Diego.
Dan: Well, if the federal society sends you a coded message telling you what the right answer was in this case, and why, please share it with us.
Will: I'll read it on the air.
Dan: No, you won't. You'll deny any knowledge of it. We should talk about that sometime, by the way.
Will: [chuckles] Okay.
Dan: Doing a federal society event, by the way.
Will: Good for you.
Dan: In this week, we're talking about originalism, attacking you from the right, doing a federal society that but as the lib--
Will: Yeah. Who's the con?
Dan: Several folks, but I am paired up with my friend, Ethan Davis, former clerk for Justice Gorsuch and my former associate when we were both at King & Spalding. We worked on a Supreme Court case together, a criminal case, Ocasio v. United States. And we are talking about something that, I think, is going to be our next topic. We are talking about the new Supreme Court nominee, and how she might affect the court on criminal justice issues. So, me and my former criminal law co-counsel, I'm talking about that. Unfortunately, I don't know yet. I'm going to do some research on that in the next couple days. So, I don't know. I can't give you a preview of my views. I think the short answer is probably not that much, because in general, this nomination is probably not going to change the court all that much, because it doesn't change the balance of power.
Will: Ah, maybe.
Dan: But Justice Breyer was more pragmatic on some criminally law criminal procedure issues.
Will: Right. Yeah. Should we talk about the new nominee?
Dan: Yes. We do have new nominee, recent DC Circuit Judge, Ketanji Brown Jackson, who I think it's safe to say was the front runner for most of the process.
Will: Yes.
Dan: Heading in. [crosstalk] Yeah. There were sort of three that people thought it might be, Judge Michelle Childs, California Supreme Court Justice, Leondra Kruger, and Judge Brown Jackson. I think David Lat who watches these things very carefully, had Judge Brown Jackson is the front runner for some time, and that is what happens. Seems like a very the logical choice for President Biden, he had pledged to nominate the first Black woman in Supreme Court. She was recently confirmed, got on the DC Circuit. And so, you've got a lot of confidence that she's not going to have issues at the confirmation hearing. Now, Supreme Court confirmation hearings, they're going to dig a little deeper than they do at DC circuit. But that's at least some vetting, more vetting than you have from Justice Kruger, who has not been through a Senate confirmation [crosstalk] Childs.
Will: Right. And she picked up some Republican votes too, right? When she was--[crosstalk]
Dan: Which? Oh, yeah, yes. She's the right age. She has a very impressive resume, former clerk for Justice Breyer. So, we have this passing of the gauntlet from Justice to former clerk which we had with Justice Kennedy, which I don't feel a little uncomfortable about, seems kind of like this hereditary position at this point. But that's where we are.
Will: I predict this is going to become a thing, that if it's the same-- if it's not a party switch, so obviously Justice Ginsburg was not replaced with the Ginsburg clerk there, there are not very many conservative Ginsberg clerks out there. But I predict this is going to become the new default.
Dan: Really?
Will: Yeah. I'm not saying it should be.
Dan: Why the default? If Justice Kagan retires, why would we limit ourselves to only Justice Kagan clerks versus like Justice Sotomayor clerks or there's people who didn't clerk on the Supreme Court who are pretty good lawyers.
Will: Yeah, I'm not saying-- there were news accounts that the Breyer thing really mattered to President Biden, that he really liked that. I think one thing that happens is the President will naturally be praising the departing Justice as a great justice and will likely be saying, "I want to appoint a Justice in this person's mold." So, that's just a natural way to do it. You've got to limit the search somehow. It is more and more common for the nominee to be a Supreme Court clerk. Relatively overwhelming majority of the recent nominations have been Supreme Court clerks.
Dan: Yeah. There's very much a sameness to the resumes of the people that get nominated these days. Elite law school, Supreme Court clerk. Now, one difference here, which is Judge Brown Jackson was a public defender. That's something we're going to talk about on my panel about her views on criminal justice, and that's unusual. That is a place where President Biden has emphasized professional diversity, which I think it's good. There's been a lot of former prosecutors who are on the bench, far fewer public defenders.
Will: Yeah, I think that's great. Have you gotten your hands on her senior thesis yet? [chuckles]
Dan: No, tell me. Tell me about it.
Will: I would like a copy, so if somebody has one. Her senior thesis in college was entitled, The Hand of Oppression: Plea Bargaining Processes and the Coercion of Criminal Defendants.
Dan: It sounds pretty relevant.
Will: Yeah.
Dan: It sounds pretty good. Okay, I'm going to have to acquire that in the next day or two.
Will: For readers who don't know, obviously, the plea-bargaining process is the lifeblood of the criminal justice system, where we get everybody to give up all their constitutional rights and just accept the punishment because we would threaten them with greater punishment if they tried to actually exercise their constitutional rights.
Dan: Which I taught in Criminal Procedure education today. Bordenkircher v. Hayes. Remember this one, Will? This is where--
Will: This is where the Supreme Court said, "This is fine."
Dan: Yeah. The prosecutor says charging a guy for writing a forged check, he says, "Look, you plead guilty, you get five years. If you don't, if you go to trial, I'm going to re-indict you on a habitual offender statute and give you life in prison."
Will: [chuckles]
Dan: It seems like that should be not okay, right?
Will: Right.
Dan: Court says it's okay. Maybe she thinks that's not okay.
Will: Again, another positive law model, it's a kind of behavior that if it weren't done by the government. If somebody said, like, "Consent to this contract, or I will lock you up for 75 years." I think most courts have a pretty easy time finding consent--[crosstalk]
Dan: That's how you got me in the show.
Will: [laughs] Don’t tell. [chuckles] If she's going to successfully get you out of this podcast, then I'm not favoring it.
Dan: No state action, unfortunately. So, no federal jurisdiction.
Will: Yeah, good.
Dan: Although, maybe you're so enmeshed with the conservative justices that what you do counts the state action.
Will: Ah. That's a good one.
Dan: But no riposte. Okay, I'm going to claim victory on that. I guess I don't have a lot substantively to say right now, because I have not dug into the record and write opinions and so forth. I hope to do that in the coming days and have more to say, and we'll see what the hearings are going to look like. But this is not necessarily something that we should expect, like huge fireworks. We're going to have the normal kind of political wrangling and a GOP Twitter account is trying to position her as a radical leftist, and probably in the end, we'll see a close to party line vote. But we'll see.
Will: I think very little interesting is going to happen. I guess that's the point. We don't really know who knows what will come out of the woodwork. But this is just going to be an example of the current setup where almost every senator's vote is predictable in advance. So, there's almost no incentive for anybody in the process to give and take it all.
Dan: And it's also an issue where political bases care a lot. A lot of what is happening is posturing for political basis because there are these advocacy organization, advocacy groups that stir people up. This is my favorite one on the right. It changes its name from Judicial Confirmation Network when Republicans are in power to Judicial Crisis Network whenever Democrats are in power, which I love how shameless it is. But they're going to get very riled up and try to get a bunch of donations about radical leftists, and so that causes a lot of pressure, I think, for senators to vote on party lines.
Will: It's a little weird. You're right, descriptively. It's a little weird. What's the incentive for the Republican senators who knows she's going to be confirmed and who think-- surely some of them must think that in the scheme of things, she's pretty good of all the nominees they could have expected and feared? I don't understand why everybody is so-- why politics demands that they vote no, or pretend that she's the worst ever. I agree that is seems to be what politics demands. I think people who tried to filibuster John Roberts, I don't get it really.
Dan: Because the people that engage base wants to see fighters. They don't like compromises. I mean, this is part of what's wrong with our system right now. Right?
Will: Yeah. But why did the interest groups want to see-- the interest groups who are stirring up the base, why is that what they demand [crosstalk] saying?
Dan: They just want donations, and they've staked out these positions, and this gets people riled up and causes them to donate. I don't know. There's different interest groups. There's not an interest group for, like the moderate interest group, and like, "Let's all get along."
Will: I don't mean moderate. I just mean if you're trying to achieve the most conservative judiciary possible, part of how you would achieve the most conservative judiciary possible, would be to make confirmation easy when people on the other side, the Democrats nominated somebody more moderate and make confirmation hard than nominated somebody more radical in the scheme of the possible. And sometimes, there are some groups that do that. There's some groups that could give us a good scorecard to somebody the other party for being better on the issues they care about.
Dan: Although it could have been-- we don't know the counterfactual of what would have happened if Judge Childs, who I think ended up being perceived as kind of more conservative, if Judge Childs was the nominee versus Judge Brown Jackson.
Will: Right. In this case, maybe that's the opposition are so upset that it's not Judge Childs as the Republicans will say, but I predict that there'll be very little worth talking about, but we should probably talk about it when this happens.
Dan: Yeah, we will. Our general approach is, we don't talk about everything, we talk about things when we've got something to say and maybe something other people haven't said or our own idiosyncratic take, and maybe we will have that on these. But these confirmation hearings follow script. I worked for Senator Whitehouse on the Barrett confirmation, did some research and stuff, and that was interesting. But again, the whole thing was there was a script that went by. There's not a lot of interesting action. I mean, sometimes things go off the rails that happen with the Kavanaugh nomination, but for the most part, we just know how these things work.
Will: Yeah, sometimes the theater can sometimes be useful, like in the first part of the Kavanaugh nomination, in the circles I travel in, there was an interesting drama about whether or not he was going to say he was an originalist.
Dan: This is the San Diego talk? metaphorical San Diego at least?
Will: I was thinking of the coded Federalist secret messages.
Dan: Okay, that too. That’s the same thing, I thought. You just have to figure out a way to not let Eric Segall hear what you're saying in San Diego.
Will: It doesn't work that way, Dan. Anyway, so--[crosstalk]
Dan: You're off the game today, Will. You're not getting me with the rejoinders.
Will: You stabbed me in the back of the first 10 minutes of the episode. Do you expect me to recover already?
Dan: You can come back. You love getting criticized.
Will: I do. I do.
Dan: Yeah.
Will: Especially when it just proves that I was right in the first place.
Dan: [laughs] Okay. Well, we'll see. Stay tuned on that. We'll try to add some value if we can. And if not, we will just take a long time before recording again. Okay, one other thing to follow up on, you may have violated your promise to yourself to never say anything critical of the justices. I think you said--
Will: I criticize them all the time, Dan.
Dan: Well, you don't like to get too personal. You like to be--[crosstalk]
Will: I don't know any of them. [chuckles]
Dan: You know them enough. I think you said Justice Barrett was the best law professor to be appointed to the court since Felix Frankfurter or something, right?
Will: Since Justice Story, I think that's it, but--[crosstalk]
Dan: That was going back to 1830 or whatever. And we got some feedback on that. I sort of pushed back, "What about Breyer?" Breyer wrote some famous stuff. And then what about Justice Kagan? You forgot about her. And I did some research on that. She had more citations as a legal scholar at the time of her appointment than Justice Barrett did, suggesting kind of maybe greater influence as a law professor. [crosstalk]
Will: I'm not sure. Maybe, it's a good point. And I should say Justice Kagan started her scholarly career at the University of Chicago where I now teach. There's a plaque on the wall outside her office memorializing the greatness, the great thoughts that are ones within.
Dan: Famously, they did not give her tenure. She was left for long enough to be in the government during the Clinton administration. She gotten tenure Chicago, she left and had to give up her tenure, she was gone for long enough. And then, they didn't hear her come back with tenure.
Will: Yeah. Well, she ended up going to Harvard. I think the exact story of how that went down was, I've heard many different versions from people--[crosstalk]
Dan: I have heard her version directly from her lips when I was a student at Harvard. And she said, "They wouldn't give me tenure back." And she didn't go to Harvard with tenure. She went to Harvard as a two-year VAP, a two-year visiting professor, and got tenure after two years.
Will: Did she have tenure at Chicago before she left? [crosstalk]
Dan: I believe she got tenure and had tenure for about a year is my memory. But you can look into the Chicago archives on that. This is how she represents the story.
Will: Well, fair enough. I'm not going to have a personal fight her. Obviously, Justice Kagan was an incredibly prominent scholar. Three thoughts though. One is, I think, most of her work, she had the one article on presidential administration based on her experience in the Clinton administration, which is now her most famous work. Most of her earlier work was just a couple of First Amendment articles, she was covering us--[crosstalk]
Dan: She wrote that article about how confirmation hearings should be more rigorous, and nominees should have to say more about their views.
Will: Yeah.
Dan: It didn't hold up as well when she was nominated.
Will: I taught that article actually. It holds up pretty well. [chuckles]
Dan: Yeah, I think she backed away from it a little bit.
Will: Yeah. Well, she could get away with it. I do think that the presidential administration article, like a lot of Justice Scalia scholarships, frankly, has taken on outsized importance and outside valence now that she is a Justice. It already did in part because, not totally accurately, but it could be seen as a kind of liberal endorsement of some of the unitary executive ideas. The article is careful not to endorse that and obviously suggests that she has not endorsed those views but it's sort of became part of that movement as well. So, really it sort of took on a life of its own in a way that, I think, it's fair to say Justice Barrett's scholarship didn't do the same thing.
Dan: Well, has not yet. Right now, that she's on the court, it's almost certainly going to get cited more. But what you're saying is right, I looked at the citations and her citation is definitely in that article did go up Justice Kagan's post joining the court. But I've got to think that's going to happen in the same way that Justice Scalia cowrote that book about statutory interpretation and making arguments that has all these canons in it, and now everybody feels like they have to cite it, as if it's some kind of authoritative thing.
Will: Yeah. But I will say this for Justice Barrett, is she's the only justice who I have ever invited to a symposium and had accept. So, that kind of makes her the best, no matter what.
Dan: Okay, that's fair. Was this pre-Supreme Court tenure or post?
Will: It was pre-Seventh Circuit tenure. I think she was actually-- there was some question whether she was going to be confirmed to the Seventh Circuit, I think, before after the article hit print, which mattered for some reason, maybe what the byline should say or something. It was a symposium by Justice Scalia in the University of Chicago Law Review after he passed away.
Dan: Well, maybe that symposium had got her over the finish line, terms of confirmation. And so, she should thank you. Are you issuing a mea culpa or are you fudging it on your claim?
Will: Neither one. I'm going to stick to my guns.
Dan: [chuckles] Okay. Your guns being that she is the greatest law professor appointed since now Justice Story nearly two centuries ago?
Will: She's also publicly endorsed the Baude and Sachs thesis that originalism is our law.
Dan: Okay, well, that's a good reason.
Will: If that doesn't make her the great--[crosstalk]
Dan: Didn't Holmes teach at Harvard briefly?
Will: If he did--[crosstalk]
Dan: Am I remembering that correctly?
Will: Maybe.
Dan: Maybe it was mostly a lawyer.
Will: And he was a state supreme court Justice forever, right?
Dan: Yeah. The Massachusetts Supreme Judicial Court? Now, I mean, Holmes, love him or hate him, he's very controversial figure, but hugely important as a thinker about law, set intellectual tone--
Will: [crosstalk] -as a writer about law.
Dan: You don't think his views about law-- seeing law. Going back to something we talked about the beginning, seeing law as a command of the sovereign and not the brooding omnipresence in the sky that formed the kind of intellectual underpinnings of Erie. You don't think that is important?
Will: I see Holmes as a proto-realist. Before full-blown legal realism, he was one of those starting to debunk these pre-realist ideas about law. Those ideas are really important. Holmes had just an amazing ability to summarize these things in a phrase and to write opinions that we still like to read 100 years later, but I'm not sure-- maybe I'm just-- now we're going to get email from all the Holmes' stans, I guess. But I'm not sure that he supplied a lot of the brilliant ideas, so much as being one of the people who took some ideas that were on the rise and just put them in a way that was hard to resist.
Dan: Okay, interesting. I don't know how Justice [unintelligible [00:55:25] is under that task, because I'm not sure she has introduced huge new ideas that have been game changing, but maybe. Okay, you're not going to back away from that. Can we just talk about one other piece of Supreme Court trivia about the Justices? One second. Which I didn't know, maybe you knew. Remember Justice Brandeis who we've talked about, because we didn't remember, he is from Kentucky, even though Brandeis University is in Massachusetts. He cowrote this before he was a Judge, cowrote this famous article with Samuel Warren, who is his law partner about the right to privacy, this emerging common law right to privacy. That was very influential, highly cited. And I was actually looking at that article, we're using it in the Fourth Amendment article and saying that there's some intellectual connection between this and what the court has done.
Brandeis had structured a trust for Warren, that his brother said screwed them out of money. And then, Samuel committed suicide as the denouement to that. And this came up in the Senate confirmation hearings and there's some questions about how Brandeis behaved ethically. I've only read very brief descriptions of this and haven't dug into what exactly happened. It's kind of a surprising end, and I was just curious who is his co-author that in this article, and I didn't realize that that this-- do you know?
Will: [crosstalk] - and the co-authorship.
Dan: [chuckles] Yeah, you never heard that one?
Will: No, I never heard that one. Now, I'm never going to let you structure any trusts for me.
Dan: Well, that's good, because I'm not licensed in your or my jurisdiction. But I do have some estate planning advice for you if you need it. My guess is given that you couldn't even get yourself admitted to the Supreme Court bar without a lot of prodding, did you ever do it?
Will: Not yet.
Dan: Okay. Not yet. My guess is you haven't created a revocable family trust. Am I right?
Will: I have a will.
Dan: That's not going to get the job done. We'll talk about that later. Okay, that was my piece of Supreme Court trivia for today.
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Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring our endeavors. Please remember, if you haven't yet rated or reviewed the podcast on the Apple Store or wherever you find the podcast, please remember to do that so we can keep listeners helping to find the show.
Dan: And if there's a long gap between this and our next episode, it will be because I am busy explaining and writing why Will is wrong about something else.
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