We take a long last look at two more end-of-term cases, where the Court made news with what it did NOT decide: Moyle v. United States (the abortion/EMTALA case), and Moody v. Net Choice (state regulation of social media). But first, a bit of debate about some prominent figures in constitutional history.
We take a long last look at two more end-of-term cases, where the Court made news with what it did NOT decide: Moyle v. United States (the abortion/EMTALA case), and Moody v. Net Choice (state regulation of social media). But first, a bit of debate about some prominent figures in constitutional history.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I am Will Baude.
Dan: So, Will, we are squeezing in one more episode before your vacation. So, there will be a little hiatus in mid-to-late August. But people can deal. I feel like we've earned a little bit of goodwill.
Will: Yeah. We had several people say this is like one of the first times the podcast has lapped them and has managed to get out new episodes before they finished listening to the past episodes.
Dan: So, usually our month-long gap doesn't give people that chance. I think this might end up being our most productive season though. Our previous record-- I'm looking back at our archives right now. Last season we had 25 episodes. Season 2, only 14. But I think that was because I had a kid during that time period. And then Season 1, 19. So, this is episode 22. The new season doesn't turn over until first Monday in October. I think we'll probably get to 26. No promises. We never make promises on the show. But--
Will: When we do, we break them. Yeah, we'll see how many-- I mean, we're starting to run out of old episodes to go back to, although we have several other special things in store.
Dan: Yeah. I think we might get there. I think we might get there.
Will: I believe in judging not just by productivity, but by impact. So, I'd like to know something more like our citation count.
Dan: I don't know. We've probably gotten like two.
Will: I think maybe more than two. I've started to see them crop up in a few, especially student comments. You occasionally see cites of the episodes, which I enjoy.
Dan: Yeah.
Will: Once or twice, I'm reading something and I think, “Oh, wow, that's something I would say on the podcast, and they have evidence of it.” And then I look at the footnote and it's just us on the podcast.
Dan: That was pretty good. Okay.
Will: [laughs] It's like, what is the bottom turtle?
Dan: It's a good line.
Will: Yeah.
Dan: And then, so you're on vacation. It's probably good for me because I could use a little bit of time. I'm trying to crank out an article, maybe send it out by the end of August. Just got another article submitted yesterday with my colleague Connor Clark, the tax guy, who I've mentioned a few times, big Magic: The Gathering fan as well. That is called the practice of executive Constitutionalism, about how the president and DOJ interpret the Constitution. So, a little bit outside of my normal wheelhouse, but that's stuff you've thought about because you've thought about everything.
Will: Well, you're a Con Law professor now, Dan.
Dan: I am.
Will: As of this year.
Dan: I'm part of the school of Paulsen, McConnell, Baude, and Bray.
Will: [laughs] Well, executive interpretation of the Constitution is always something we think needs to be covered more in a regular Con Law course.
Dan: Yeah.
Will: So, I guess we'll learn something from it too.
Dan: Yeah. And that actually was one of the reasons I chose your casebook. I liked the use of signing statements and veto messages and various other kinds of non-judicial sources. So, that's what I was writing about last month. Next thing is going to be writing some, finishing up a Fourth Amendment theory piece. So maybe more on that later. You've got some stuff in the pipeline, right?
Will: Yes. I don't have anything going out to the journals right now. Paulsen and I have a follow up on Section 3, a comment on Trump v. Anderson, tentatively titled Sweeping Section 3 Under the Rug that I'm going to be workshopping.
Dan: How mad is the tone?
Will: It's pretty hot.
Dan: Was it cathartic to write this?
Will: I will say a colleague who read it commented, he said, “You know, when you talked about Trump v. Anderson on the podcast, you had a very different tone than the tone you have in this article.”
Dan: You were just a little resigned, a little puzzled, you weren't really mad on the show.
Will: Yeah. I mean, I think I thought also on the show that it was funny.
Dan: [laughs] Yeah.
Will: And, yeah, I will say, while Mike and I generally agree eye-to-eye on almost everything, I don't think he finds it funny at all.
Dan: He's somebody who is capable of coming in hot in his academic writing.
Will: I see his point. It's a really bad opinion, and we've got a lot of things to say about it.
Dan: It's not the court's finest work.
Will: Indeed.
Dan: All right. Well, I look forward to that one. Hopefully, it's a little shorter than the last piece.
Will: It's a lot shorter. We have a 19,000-word limit, I think.
Dan: Okay. A little bit more reasonable.
Will: Good for us, I think.
Dan: You need to be reined in a little bit. Okay. You had collected some odds and ends for us to talk about today.
Will: One thing, Justice Gorsuch has a new book out which I think we've mentioned on the show before, Over Ruled: The Human Toll of Too Much Law. I think my copy just arrived at my law school office today as we're recording this. But he's also done an accompanying media tour, more than I remember Justices sometimes doing with sit downs with-- [crosstalk]
Dan: He did one of those for his last book is my memory.
Will: Is that right?
Dan: Yeah, he definitely did some TV is my memory.
Will: Yeah. Well, so maybe it's normal and I've just forgotten it. I included a long interview with Becca Rosen in The Atlantic that I especially enjoyed in part because he went on to tell a long story about Yates, the fish shredding case we talked about in the last episode, I gather this is in the book as well, where he goes in the backstory of the prosecution of this fisherman. And I guess the claim is that of all the many fish on the boat, most of them were oversized except for 72 and those he had to put in the hold. And then when he got into port, they were only 69 instead of 72. And then he thought nothing had gone wrong. And then eventually the feds come knocking at his door about the three missing fish. And certainly makes the whole thing sound like even more of a silly prosecution than it did in the court's opinion. I'm still not sure it made the fish sound intangible, but it was an enjoyable discussion.
Dan: Yeah. And he also did an interview with David French, New York Times. He goes into some of the other anecdotes. I haven't read the book, but definitely seems interesting, seems very anecdote focused. Basically, it seems to be an argument, somewhat libertarian, somewhat antiregulatory, although he disclaims adherence to libertarianism in the New York Times article. But he's trying to get people to think about a little bit less in the way of law and regulation, a little bit more in the way of liberty. I don't know. It's an interesting topic for a Justice because it's not really about the court's work. And at various points, he says, “And here's what the court did, and that was reasonable. That was what the court had to do in those circumstances.” But it seems like it's more directed at voters and legislators.
Will: Yeah, I was thinking about that because a lot of the Justice books we see are either memoir, lots of Justices do a memoir type book. Yeah, traditional philosophy type books, like all of Justice Breyer's books, Justice Scalia's books to a lesser extent, but pretty much were like retreads of the topics they argue about in their opinions. I mean, reading law with Bryan Garner has more things than were in just the Scalia's opinions, but they're about, as you say, the work of being a Justice. The last Justice I could think of who wrote books like that would be Rehnquist.
Dan: He wrote a history of the Supreme Court. He wrote something about the Constitution in wartime.
Will: That's right. He wrote a book on the state of civil liberties in wartime, All the Laws but One. He wrote a book on presidential impeachments I think Grand Inquests. He wrote a book on the election of 1876 Centennial Crisis. Maybe another one. I think he has a specifically civil war book. Maybe I'm confusing that with All the Laws but One that were just good down the line non-fiction history books.
Yeah, I read several of them in law school and really enjoyed them. And those two, they weren't as political, I guess, as the Gorsuch book, but they weren't just about his opinions. They were just things he thought was interesting.
Dan: Yeah. I always wondered how much was he just writing those himself, were those a lot of work on behalf of the clerks?
Will: I have no idea. Maybe a Rehnquist clerk will know. My memory is that he did more than himself. And I think the Rehnquist papers are at the Hoover Institution at Stanford. And you can see some of the drafts and notes and materials in there. My memory is there's also an unfinished novel in there that's never been taken out, but I might be-- [crosstalk]
Dan: Is that where his marriage proposal to Sandra Day O'Connor is? That was discovered a few years ago.
Will: I don't remember whether it's in his papers or her papers.
Dan: No. Yeah. I don't know if he kept a copy.
Will: Yeah, in the old days, but in the founding, you tried to write out a copy of your letter in addition to theirs. So, you have both the sender's copy and the-- [crosstalk]
Dan: People have time to do that. I guess, there was nothing else to do.
Will: Well, Jefferson had that machine. Do you remember?
Dan: Yeah, I've seen it. Have you been to Monticello? He had a lot of wacky stuff. He's probably not the best founder, though.
Will: He might be the best inventor founder other than-- [crosstalk]
Dan: Yeah, just as a--
Will: Ben Franklin might [unintelligible [00:08:59].
Dan: As a person that [unintelligible [00:09:01] stuff. I think it's not good. And also, a coward, right? like a lot of the other founders were involved in the Revolutionary War, and to my memory, he just fled when the British were coming.
Will: He was in France. I think he was ambassador to France at the time.
Dan: I think that was later.
Will: Oh, okay. He was in France during the-- [crosstalk
Dan: During the drafting of the Constitution.
Will: When Akhil Amar teaches McCulloch v. Maryland in his Con Law class, it's half lecture and half almost dramatic reading of McCulloch v. Maryland, interspersed with commentary. There's definitely a part about how Marshall and Washington were together freezing their butts off in Valley Forge while Jefferson was swirling wine in France. And that's why Marshall is correct and Jefferson is wrong about the definition of constitutional necessity.
Dan: I'm not sure that works as a constitutional argument, but maybe.
Wil: David Currie who we talked about last on the show, he has a defense of Jefferson in one of the books. I mean, he has a version of-- I think it begins, he like all of our founders, he had feet of clay, but religious liberty, limited government, a couple other fundamental American ideals that he really stood up for. It goes into this question of how to judge the good and evil of the founders.
Dan: I'm a Hamilton guy, I think. He was the most committed antislavery founder by quite a fair margin, I would say.
Will: Huh, no-- [crosstalk]
Dan: [crosstalk] -the key ones.
Will: I'm a Ben Franklin guy.
Dan: Yeah, he's pretty good, but he was really old. He only sort of counts.
Will: Still had it.
Dan: I didn't know until recently just quite how sexually debauched he was.
Will: Well, there is that.
Dan: It seems like it was-- I'm not sure it's a knock on him. It seems like that was just his lifestyle.
Will: It doesn't seem to have involved nonconsenting slaves, as far as I know.
Dan: But some of those letters where he discusses his proclivities are really something.
Will: But, yeah, he masterminds a series of petitions to Congress, like antislavery petitions from the Quaker anti-slavery societies that try to move the needle in the early congress. I think he was just an incredible.
Dan: He was really old at the drafting of the Constitution. He was a delegate. But I think my sense is he was not super active.
Will: No, but I think he made some key interventions and brought a lot of wisdom to the youths that were otherwise doing the work.
Dan: And he was, maybe not an inventor, exactly, but a scientist who has some of that Jefferson spirit that you were admiring a minute ago. So, maybe we will talk more about Justice Gorsuch's book, although it seems like not super Supreme Court focused, although I do like the anecdotes about cases. He gives some other anecdotes. One of them is about one of the cases he wrote when he was on the 10th Circuit where he criticized Chevron. Those are opinions that, I mean, surely helped him get selected for the Supreme Court.
Will: In hindsight, yes.
Dan: In foresight, yes.
Will: Well, I mean, they were definitely a major topic of the conversation. I just meant, the time he wrote them in the 10th Circuit. I don't think anybody thought like, “Oh, the fast track from the 10th Circuit to the Supreme Court is to-
Dan: Yeah, maybe
Will: -critique Chevron and immigration cases.”
Dan: Yeah, maybe, maybe not. I mean, by that point, I mean, don't you think there was a little bit of a trend among conservative circles to start thinking Chevron was wrong.
Will: Sort of, but we were still having brand x and everything was still unclear where the wind was blowing.
Dan: Okay. Two other little shadow docket-y things.
Will: Yeah.
Dan: So, one, I don't really understand what happened here.
Will: Is this in Trump v. US?
Dan: The Trump v. US, I don't understand.
Will: Right. So, in Trump v. US, the immunity case, after the opinions, the court eventually has to issue a document called the mandate. That's the actual rendering of judgment and sending the case back to the lower court. And Josh Gerstein of Politico, formerly of Dobbs leak fame, I guess, grabbed a couple of PDFs off the Supreme Court's website that show that the first copy of the mandate they sent out ordered the government to pay $3,232.80 of Trump's costs and then the next version, the final version or whatever, then said, no costs. [laughs] So, it's just a little interesting.
In the Twitter back and forth, I think it's unclear exactly what happened. It may just be, Gerstein says that “It seems to be the custom, not toward costs in criminal cases.” So, that may be the custom that you don't award costs in criminal cases. And maybe somebody just goofed at first-- [crosstalk]
Dan: And how do we think that? Do you think someone from the SG's office just sent a note in, called the clerk's office and just said, “Hey, you guys screwed this up?”
Will: Could be. But I was also wondering, I think it was Politico that originally got the leaked document in Moyle, the abortion case we're going to talk about in a minute that was posted by accident the day before it was supposed to come out. And I think there was this theory that Politico might somehow be able to scrape all the PDFs as soon as they're uploaded to the Supreme Court website. So, I do also wonder if somebody even just-- [crosstalk]
Dan: That was Politico. That wasn't Bloomberg.
Will: I could be misremembering, but I wondered if this wasn't even actually issued to the parties, but just somebody uploaded the wrong document and then caught it or something. I don't think it's because somebody said, “Wait a minute, it's not fair that Trump should get to recover costs or he's not really the prevailing party because the remand is ambiguous.” Although maybe that's also what's going on I am not sure.
Dan: Yeah. Who knows? Yeah. Costs are something that I haven't really thought about. And I mean, they-- [crosstalk]
Will: And these are not attorney--
Dan: Stakes, yeah.
Will: The amount of money involved.
Dan: It's just like the filing fees and printing your briefs, maybe?
Will: Yeah, I think sometimes, I mean, a few thousand dollars is printing of joint appendix and clerk's fee is what was in this one. So, it's not even the briefs, it's just the joint appendix.
Dan: Those joint appendices are not cheap.
Will: I wonder how many hours somebody had to bill to deal with the costs.
Dan: I suppose so. Speaking of Trump v. US, one of Trump's lawyers, Will Scharf is on the primary ballot in my state today, running for attorney general against the incumbent. So, by the time you hear this episode, we will know whether he is going to win the nomination and then will likely be the next attorney general. Given this is a pretty red state these days, that's one hook. And now I'm going to use that hook and I'm going to pivot to the next thing.
Will: Nice.
Dan: The current attorney general of Missouri, Andrew Bailey, is someone who is also competing with Scharf to seem Trumpier and to throw out more red meat. And one of the things that he did was file an original jurisdiction complaint with the Supreme Court on behalf of Missouri against the state of New York about the prosecution of President Trump there. So, arguing that it harms people in Missouri and Missouri has standing to file suit against New York for its own New York criminal prosecutions.
Will: Okay, that seems weird.
Dan: Yeah. It seemed to me extremely dubious. And I said on Twitter that it was frivolous and the court should think about sanctioning the lawyers, which I stand by, I actually wanted to get my act together and write a short little amicus brief making that point, because I think it's actually important here because original jurisdiction cases are ones that the court actually has to consider on the merits.
Will: Does it?
Dan: In theory. They have to look at them a little bit more carefully than cert petitions. They're not wholly discretionary.
Will: Well, yeah, there's several legal issues here that are interesting.
Dan: Yeah.
Will: They're not the cert petitions where the court can just deny cert. They don't seem to be quite the same as mandatory appeals. So, the court doesn't seem to feel the need. But it has a procedure, it's developed where it decides that they'll let you file your complaint.
Dan: Yeah. Which is cert denial. They seem to look at them and they decide if they're garbage. But I don't think the court sees itself as being able to just refuse to let you file them just because it finds it not interesting.
Will: Well, I'm unclear on what they think they're doing. And there is the problem that what they do is probably lawless. The courts have invented this doctrine at first in cases where you could file somewhere else. So, it's not a state versus state, but a state versus a chemical company is something the court can hear in its original jurisdiction, but also could be in district court. And the court invented this doctrine forum non-conveniens. Why don't you hear this somewhere else because we are busy. And then basically, without explanation, they extended that state versus state cases. And I think Justice Stevens at first complained about that because this case, it can't be filed in the Supreme Court. It can't be filed anywhere. There's no place you can file Missouri v. New York.
Justice Thomas and Justice Alito, maybe like 15 years ago now wrote an opinion saying, “We should have to consider all these on the merits.” And the court doesn't seem to do that, but exactly what they're doing, I find a little unclear whether how much it's a merits screen and how much it's a-- We don't feel like it's screen or what.
Dan: Yeah. This came up in one of the cases filed in the aftermath of the 2020 election. Was it Texas--
Will: Texas v. Pennsylvania.
Dan: v. Pennsylvania. Yeah.
Will: Where Texas exactly wanted to complain about Pennsylvania's counting of the late filed absentee ballots. And now Justice Thomas and Justice Alito feel the need in every one of these cases to file a separate statement saying, “We do think you should be able to file the bill of complaint.” But then, of course, that doesn't necessarily mean they actually agree with the claim. They just have a different view about the procedure.
Dan: Yeah. And so here and in that case, they would have granted the motion to file the bill of complaint but would not grant other relief. What does that mean? Does that mean, then go set argument, or does it mean then-- [crosstalk]
Will: I think they are at a minimum clarifying that the only reason they would grant motion to file leave to file a bill of complaint because they think that's nondiscretionary.
Dan: But I mean, doesn't the court still have to do something else at that point?
Will: Yeah, but maybe they're hinting we think this case is-- I think they're trying to say, “We think this case is meritless.”
Dan: Yeah. Well, they're trying to say they wouldn't grant other relief at that moment. But does that mean, wouldn't the court then have to either grant more relief or grant judgment for the defendant or-- [crosstalk]
Will: I gather-- so, I think Missouri did ask for preliminary relief or stay.
Dan: Yeah.
Will: So, at a minimum, they're saying we wouldn't have granted the court the-- [crosstalk]
Dan: They wouldn't do that. But I mean, then the court, presumably that means set it for argument or at least appoint a special master or something.
Will: I assume what would happen if they did grant leave to file is New York would then file a motion to dismiss on the merits and the court would then have to decide whether the motion to dismiss was correct. And I think what they probably would do is they would vote to grant the motion to dismiss, which doesn't yet exist. So, they can't say, “We would vote to grant the motion to dismiss because there isn't one.” But it is a little confusing. And again, I think they're trying to make clear that it's not like there are two Justices who think that Missouri should be able to stop New York's criminal prosecution.
Dan: Yeah.
Will: I also think the point you made about the sanctions is related to this discretionary point. There have been a rise in-- I think there was an amicus brief in this case filed by some states. There's an amicus brief in another one of these original jurisdiction cases by some fed courts professors saying legally the court should have to deal with these a little more regularly and not in a discretionary fashion. When people file stuff like this, that just makes the court think like, “No way we're going to just let any state attorney general clutter up our docket.”
Dan: Yeah. And that's why I think that they should be willing to sanction these as frivolous.
Will: Yeah.
Dan: It strikes me as worse than filing a frivolous cert petition. I think that they arguably take up more of the court's time.
Will: And just to clarify, is that there's both the merits frivolousness. This is obviously lax merit, and then something more like bad faith.
Dan: Yeah. I think that this is frivolous on the merits, but also so frivolous and so unlikely to lead to relief that it seems clear to me that any competent lawyer who is worthy of being in the Supreme Court bar would only be filing such a motion to score political points, and not because thought they had any prospect of victory. And that strikes me as something that the court should be willing to discourage.
Will: Okay. Yeah, I see that. I mean, I think it's a tricky to exercise in practice, but I do think if the court feels like people are using meritless litigation purely to score political points, that's something I should be concerned about.
Dan: Yeah, I don't like that.
Will: Maybe amicus briefs too. Should we also start sanctioning people for frivolous political amicus briefs?
Dan: It's a little bit different. I mean, because you could have all sorts of views about what might be relevant to the court in terms of hearing from different amici. It's not obvious to me that any-- I guess there's some amicus briefs that are just obviously below the relevant standards. But I feel even if the brief is making a political point, there's no substantive guidance about what an amicus brief, what kinds of arguments are on the table. So, it's less obvious to me what would count as a frivolous amicus brief. Whereas if you are actually the party requesting relief, and you know this is no chance, and you know that there's no colorable argument. I don't know. That seems different to me.
Will: Yeah. I think the rules do say the amicus brief should contain relevant matter not already brought to its attention by the parties.
Dan: Yeah, but that's so capacious. That could be anything.
Will: I mean, it could, but I think friend of the show, Steve Sachs has occasionally advocated that the court should be more aggressive about striking amicus briefs anyway, which would also be a way of communicating and setting the norm. The Cato Institute sometimes files these hilarious joke briefs.
Dan: Yeah. I find them entertaining, but they seem a little bit disrespectful.
Will: There are members of Congress who occasionally file briefs that-- I mean, many of them are just, here's what we think the law means. But some of them sometimes, I think, crossed a line to, more obviously designed not to help the court. [chuckles]
Dan: I think it would be harder to draw a line there though. That's all I would say.
Will: Although there you can imagine that if you regularly struck some briefs with a short explanation, they could start to set a clear common law rule that over time, you could sanction people. The third time. Senator Whitehouse says, “If you rule against us, you should fear the whirlwind,” or whatever. Not that he would do that.
Dan: So, I think those are all the odds and ends. Do you have anything else?
Will: Well, I just want to ask, why are we so sure that the suit is frivolous? Is it because there's no legal challenge to the gag order against Trump in New York? Or is it because standing, or--
Dan: I mean, do you think that there's a legal basis for one state to come and intervene in the criminal prosecution in another state? I mean like--
Will: I think there shouldn't be. But under current standing doctrine, their claim is there's a gag order that stops Trump from saying things related to the election that people in Missouri would like to hear. And there are cases like FEC v. Akins that say that not being able to receive information about an election is at least an injury, could then argue with the merits. I would graft on top of that, just like a special, almost like anti-state standing doctrine that states shouldn't be suing in this capacity for injuries that obviously want somebody else. Maybe that's the law. I hope that's the law, but I wasn't sure.
Dan: I mean, yeah, I'm not here to get into a really long discussion of the merits. I just think if you take a step back at this case and say, “Can state A sue state B, on the theory that state A is prosecution of a private individual is causing harm to the plaintiff state's citizens because they want to hear that person?” There's a lot of dubious steps in that argument. Maybe some of them are less dubious.
Will: If Missouri had sued Colorado for keeping Trump off the ballot, would that be equally frivolous? Is like our citizens are injured because now they're not going to be able to--
Dan: That strikes me as perhaps a little different. There is maybe fewer steps involved there, and there's maybe less of a federalism concern of state-- usually, we don't let one state interfere in another state's criminal prosecutions.
Will: Yeah, okay.
Dan: Yeah. I don't know. It does seem to me that, at least on the merits, any given state has an interest in its voters being allowed to vote for who they want to, that doesn't necessarily mean they have an interest in the choices that other states make.
Will: Yeah.I agree with you, in Trump v. Anderson the court said otherwise. And it said that Colorado was imposing negative externalities on people in other states because they--
Dan: Yeah, but it didn't necessarily say that those people could sue.
Will: No, or let alone, the state could sue on their behalf.
Dan: Yeah.
Will: Okay. Sorry to derail us. Just wanted to check in on that.
Dan: Okay, so in your position is that the court was wrong. It was nonfrivolous, and the court was wrong to deny it, to deny leave?
Will: I think the court. I think it is frivolous.
Dan: Okay.
Will: So, I think in general, the court is wrong to deny leave. Maybe there should be a frivolousness exception though, the same way there is for federal jurisdiction. So, this might be the rare case where it was right to deny leave, but it should have denied leave on the Epps grounds that this is ultimately a frivolous case.
Dan: Yeah.
Will: Possibly for standing reasons.
Dan: Okay. All right, so we're going to talk about two cases, or like one and a half, maybe. Does one count as a case?
Will: If it's not a case, then what is it? [laughs]
Dan: Controversy. I think theme today is Justice Alito taking an L [Will laughs] I don't know if that was intentional or not. You suggested these, and these are the two cases where we are told and have reason to believe that Justice Alito started off maybe writing an opinion for the court, or at least thought he was or thought he might have been, and then it did not end up getting what he wanted.
Will: Yeah. I mean, one of them-- we're not going to talk about Gonzalez v. Trevino today, which is another Alito of stolen opinion. But these are both cases where something shifted at the last minute and Justice Alito ended up on the short end of the stick.
Dan: Yeah.
Will: One of them Moody v. NetChoice, is a case about the regulation of social media companies in Florida and Texas. The other, Moyle v. United States, is about the interaction between federal law governing emergency rooms and state abortion law coming out of Idaho. Should we talk about Moyle first?
Dan: Yeah. So, don't have a majority opinion here. And so, what is your understanding of the common wisdom based on leaks and stuff, just about what was going to happen in this case? Well, should we set the case up, give the background, and then you can answer that question?
Will: Yeah. So, the background is Dobbs overrules Roe v. Wade.
Dan: Oh, really? Which season was that?
Will: Season 2. Idaho bans abortion unless necessary to prevent the death of the pregnant woman. But there's a federal statute, the Emergency Medical Treatment and Labor Act that says, “That emergency rooms are required to stabilize people who present themselves there. They're provided to provide medical services necessary to stabilize a medical condition.”
Dan: Not all emergency rooms.
Will: Indeed, the federally funded.
Dan: Yes.
Will: Emergency rooms that receive Medicare funding, basically, that seriously threaten a person's life or health. Although one of the disputes in the case, there seems to be some delta between Idaho's view of necessary to save the life and EMTALA’s view of necessary to stabilize. That's supposed to be a broader set of abortions. And so there seems to be a potential conflict. That's part of the question between what federal law requires hospitals to do and what state law forbids hospitals to do. On the other hand, how to understand the federal law and how to understand the state law, both have their own ambiguities.
So, this is produced litigation in Texas, the Fifth Circuit, and this lawsuit that's been going on in the Ninth Circuit, I think this started as a lawsuit affirmatively filed by the United States against the state of Idaho, saying that Idaho is violating EMTALA.
Dan: And the district court agreed with that and enjoined the law. And then the Ninth Circuit overturned that and then reimposed it after going en banc.
Will: The Ninth Circuit did that as to the stay. And the Ninth Circuit has not yet issued a merit’s ruling. Because the Supreme Court then--
Dan: Yeah, I just mean, like, they took it away.
Will: Yeah.
Dan: They initially state it and then un-state it. Right?
Will: Yeah. Right. And then the supreme Court reaches in and grants cert before judgment, in part because they're dealing with the stay here. There's a related lawsuit already in the Fifth Circuit. And so, this is one of those times, I think, where you've got, emergency litigation over stays in multiple circuits. And the court recognizes that to be able to provide a definitive resolution, it needs to actually just get in here and figure out the merits. And so, they grant cert before judgment to figure out the merits.
Dan: And grant the stay.
Will: Yes. And grant the stay.
Dan: So, they allow the law to continue to be enforced in the meantime.
Will: Right. Grant the stay of the district court's injunction. So, while the suit is pending, that's a victory for Idaho.
Dan: Yeah.
Will: Right.
Dan: And that was some months ago.
Will: Yes. And, of course, that made Idaho's chances look pretty good. I think what we now understand is that then after conference, there was basically a 3-3-3 split. With three Justices who would vote to affirm, the district court say the injunction is good. Three Justices who would vote to reverse the district court say the injunction is bad. And three Justices who decided they wanted to dig and give the case back to the Ninth Circuit to deal with it on the merits.
Dan: Yeah.
Will: And as I understand, part of the problem is you need five votes to do something at the Supreme Court, and three is less than five. And so, when you have three votes to do three different things, [Dan laughs] it's actually just like not even clear what happens. [laughs]
Dan: Yeah, but so it looked like this was going to be a 6-3 case based on the stay. And then something shifts. I'm looking back at the Biskupic article, so it seems like this happened maybe at conference. So, this wasn't necessarily the other cases we just mentioned where there's actually an opinion assignment, but there's uncertainty coming out of the actual conference itself. The Chief doesn't assign it to anybody who's just sort of like, “Go figure this out amongst yourself. Let's see what happens.”
Will: Right. Well, you can even imagine the Chief, it seems like, might have gone into conference planning to dig and then couldn't even get enough votes for a dig. And that's what you-- if they were just going to dig it, you wouldn't assign it to anybody, you would just issue a dig. But if you're stalled between not enough votes for a dig and not enough votes for any one non-dig disposition, then, yeah, then we got to roundtable it for a little while.
Dan: I think the big thing that changed, I remember this happening as the lawsuit was ping ponging at each stage is, of course, there are these funny incentives where, for purposes of this lawsuit, Idaho wants its exceptions to be pretty broad.
Will: Idaho wants to promise, like, “Don't worry, we actually allow plenty of abortions.” All the abortions that the federal government needs us to allow, but no more than they need us to allow. And the federal government, similarly, may want to narrow exactly what EMTALA demands. Don't worry, we're not saying you have to provide an abortion anytime that it will lead to psychological harm for the mother to be forced to bear a child,” because purposes the permission analysis, everybody needs to tack towards the center.
Dan: But then each party is trying to paint the other as being really broad.
Will: Yes, I'll just say there's some evidence at each stage that both sides have a point, that the other side's constructions are not entirely obviously correct. And it seems like, or at least Justice Barrett wants us to believe that, “In particular, the shape of the case changed because the shape of these cases has substantially shifted since we granted certiorari, we should dig.” I don't know if that's right, but it does seem like at the time the court granted the stay, the court must have tentatively thought there are 6-3 in favor of Idaho. And listening to the argument, it no longer was clear there were six people who were in favor of Idaho.
Dan: Yeah. So, she says, “Since this suit began in the district court, Idaho law has significantly changed twice. This is page four of Justice Barrett's opinion.”
Will: Yeah.
Dan: But Idaho law has not actually changed. One change, I guess, is the Idaho Supreme Court interpreted the law narrowly.
Will: Yeah.
Dan: But Idaho law didn’t subsequently change. There just was further, right?
Will: I know, there is also an amendment mentioned on page three because there was this question about whether Idaho law dealt with ectopic pregnancies. And so, the Idaho legislature amended the definition of abortion to exclude the removal of a dead unborn child and the removal of an ectopic or molar pregnancy.
Dan: This is a mess.
Will: Yes. I mean, it's a mess both at the legal level… And I don't know if you have a view about the merits, but then it's just a mess at the court administration level when they have to figure out how to dispose of this case.
Yeah: Yeah.
Will: I mean, I guess literally what would happen if they just are deadlocked, three to dig, three to reverse, and three to affirm, is that they would just do nothing with the case and just stay in place forever until somebody decided to do something with it, which doesn't seem like a great situation.
Dan: Yeah. Because if there's three possible dispositions, there's not a majority for any one of them. It's not clear what's supposed to happen.
Will: Right. And normally what you'd expect to happen, and I guess what does happen here, is that at least one of the two merit sides could decide, a dig is okay because a dig gives the case back to the lower court, gets the Supreme Court out of it. So, if you liked what the lower court had done, you will often be fine with a dig. And that's what ends up happening here. Is that Justice Kagan and Justice Sotomayor eventually agree with the disposition to dig the case, now--
Dan: And Biskupic tells us there was a lot of jockeying internally. And she says this was a rare situation where the three liberal Justices had leverage that they don't usually have because there's usually not enough of them to block what the court is trying to do.
Will: I guess one thing that makes the dig here different is because it's cert before judgment. Like normally, a dig means the lower court decision stands and we can move on. Here a dig is just going to send it back to the Ninth Circuit, which is still going to have to rule, and the Supreme Court could still grant cert again from them. And you have the pending Fifth Circuit litigation, the liberal Justices maybe are-- a dig is less exciting for them than it sometimes would be.
Dan: Yeah.
Will: And it seems to me like the other question is what to do about the stay. Because a dig while keeping the stay in place is– [crosstalk]
Dan: Is basically a win for the state, right?
Will: Right. In some ways, it's the best the state wins without ever having to make anybody write an opinion explaining why they win.
Dan: But then it would leave open the possibility of the Ninth Circuit could, they would lose on the merits before the Ninth Circuit.
Will: And one thing I couldn't figure out from the reporting is, even initially, were there six votes to vacate the stay, or were the three Justices who wanted to dig not sure whether they also wanted to vacate this stay because then you could really imagine the--
Dan: I read it as the latter that was part of the ultimate compromise.
Will: The compromise was that the dig three also agreed to vacate the stay.
Dan: Yeah.
Will: That would make sense, that in the end, you have the Justices who think the stay shouldn’t have been granted in the first place agree to a dig to let the case go away, but in exchange for making the stay go away.
Dan: Yeah. In terms of the merits, it’s a little tricky because we have a very long opinion by Justice Alito basically saying that there is no conflict between federal and state law, and we have basically nothing from Justice Barrett on the merits. And then we have a short opinion by Justice Kagan that does not get as deep into the weeds on the merits. I mean, her discussion of the merits is basically two pages. And so, it makes it a little hard to evaluate because she doesn't spend that much time with the text. She doesn't respond to all the arguments that he makes. It does seem tricky. I mean, because this is not a case where the law clearly states what should happen. It has broad, vague requirements that just apply to all sorts of medical conditions.
When there's an emergency medical condition, hospital has to stabilize the condition, and then other requirements that basically you have to do something to help the patient right in that situation. And then the question is, does that apply to situations where an abortion may actually be medically necessary, such as to save the life of the mother or going further to prevent some further serious health consequence that's not necessarily a matter of life and death.
Will: Yeah. And it seems to me part of this is that there's almost a framing question that really shapes a lot about how to approach the case. And it's just not clear to me how you're supposed to resolve the framing question. On the one hand, you might just say, “Look, sometimes abortion is a method of stabilizing a medical condition. And when it is, federal law requires it. And when federal law requires it, that trumps under the supremacy clause.” And I take it that's why Justice Kagan thinks she can deal with the merits in two pages, is it's a straightforward Barrett and Fischer-esque, this is not hard argument, I take it.
One problem, it's argued in various ways in the briefs, is like, what if the thing you need to do to stabilize a particular person is otherwise wrongful in some way? And then there are various the hypo that kept floating the Fifth circuit that I think many people find offensive is, imagine somebody needs an organ transplant right now, and there is a patient next door who has a kidney they're not using, and you could just go in and take it from them without their consent and stabilize the patient. Does federal law, preempt all of our other rules that say you really can't do that?
Dan: State homicide law.
Will: It wouldn't necessarily be homicide if the person wouldn't die from the kidney.
Dan: Yeah, fair, yeah.
Will: State battery law, etc. And everybody knows the answer for that has to be no. And many people have the intuition that this is different, but figuring out why it's different exactly and what the legal rule is that it's different and where that comes from because you could say, “Look, the federal law just means you have to stabilize them with whatever the legally available means are. And since the purpose of the law is to make sure that poor people in the emergency rooms don't get treatment,” you could say, “Look, if it's something that would be illegal to do in the paid wing of the hospital, the non-emergency wing, the emergency room doesn't become a special federal enclave where special care is available.”
Dan: Yeah. It seems like it ultimately does depend on what you think is medically appropriate.
Will: Yeah.
Dan: Because presumably we would think a state wouldn't be able to just say like, “You can't perform surgeries,” or something like emergency rooms can't provide some form of medical care that everybody thinks is really necessary.
Will: Right. Although we can imagine, they say not just for emergency rooms, imagine the state just says, “We don't believe in heart transplants anymore, they're bad for the soul.” It is weirder. The SG's arguments just to try to say it's just about what's medically necessary. And no doctor thinks that you should steal somebody's kidneys. Like law aside, so stealing kidneys is never the standard of care, whereas lots of doctors think that sometimes abortion is the standard of care. It feels a little like those Fourth Amendment, reasonable expansion of privacy things to me though, it feels like there's a circularity, part of the reason it's illegal and nobody thinks you should do it and those all go together. But, yeah, it just feels to me that there's a circularity to this.
Dan: Yeah. And so, Justice Alito makes much of the fact that if you… looking at the legislative history, it's really hard to imagine that politicians who enacted and this law thought it was an abortion, it was protecting abortion.
Will: Yeah.
Dan: I don't know what you think about those arguments. Those are not really textualist arguments. But he says, “It was supported by Henry Hyde who hated abortion, adamantly opposed the use of federal funds to abet abortion.” He's like Henry Hyde of the Hyde Amendment. And it was passed under President Reagan. Those are not credentialed textualist arguments.
Will: They aren't. I also just think they're missing the-- at the time this has passed. I think the truth is nobody was really imagining a post-Roe world. I mean, I realized they were trying to overturn Roe and people thought Roe was going to overturn Casey. But I just don't think anybody had at the front of their mind, “Well, how will this apply if Roe is overruled and state law and abortion dramatically changes?” And I guess especially it's funny because they might have thought, well, if that happens, presumably we can always amend EMTALA.
Dan: Yeah, but couldn't it have been the case that there were hospitals that accepted these funds that just would have said, “We prefer not to do abortions, even when medically necessary in the 1986 and 1989 world,” and if this interpretation is correct, this law would be saying, “You can't do that.”
Will: Yes.
Dan: Even in a Roe world that didn't mean that every hospital had to perform abortions.
Will: That's true. Although I guess the real conflict comes up if you imagine that the abortions are now otherwise illegal. I think it is true that if you're in a state where--
Dan: But you still could have imagined litigation in that world where there was some hospital says, “We want the money, but we want to not ever have to do an abortion,” and then you would have to go figure out what the statute meant and whether it covered abortion or not, wouldn't you?
Will: Yes. Yes, you would. I mean, I take it one of the arguments is the statute. It's not the statute either does or doesn't cover abortion categorically. It's that the statute draws its standard of care in part from state law. But no, I think those are all possible moving parts of this.
Dan: And there's this other angle, the spending clause question, which I hadn't really thought about before this case.
Will: Yeah.
Dan: Which is can spending clause statutes enacted pursuant to the spending clause, can they preempt state law at all?
Will: Right.
Dan: Basically, particularly where they're not directly representing contracts with the state.
Will: Right. If you imagine a spending clause statute that says, “Everybody in the United States gets a $1 gold coin that says preemption on it, [laughs] and any holder of this coin preempts all the following state laws on whatever topic, just because you hold the gold preemption coin.” It seems like an enumerated powers problem to think that Congress could-- if it's something that otherwise wouldn't be within the scope of the Congress power or whatever or whatever. It seems like a little bit of a problem to say, like Congress can just issue preemption coins using the spending power. And the fact that the holder of the preemption coin consented to hold the preemption coin gives them power to preempt state law from the state they didn't-- [crosstalk]
Dan: But couldn't you still have some other checks on that? There's jurisprudence under the spending clause, it has to be reasonably related, the condition has to be reasonably related, and so forth.
Will: Yeah. Although those cases are all about where it's money being given to the state and the state doesn't like the strings. I'm not sure quite here you can even say that our goal in spending this is to help spend money to preempt state laws.
[chuckles]
Dan: Yeah. You could come up with some federalism doctrine that was like, maybe there's preemption when it's necessary to achieve the legitimate objective-- I'm just making up words. But you could imagine some set of principles that would do that.
Will: Yes, you could definitely imagine some way to rule out preemption coins that wouldn't rule out all preemption under the spending clause. But I don't know that anyone has come up with that yet. That's the thing you'd have to come up with to make this work. It relates a little bit. We talked about these questions about another spending statute is RLUIPA, Religious Land Use and Institutionalized Persons Act. And there's this question of whether that creates a private cause of action to sue. And one of the arguments that floats around there is a version of this argument that, like, just because the state has consented to receive federal funds doesn't mean that I, a random prison guard, have consented to be sued.
Dan: Yeah.
Will: There at least, like, when the state consents and the state has lawmaking power and I'm acting as an agent of the state, it's easier for me to see the path from, the state agreed to take money to the prison guard gets sued, but here it's the hospitals that are agreeing to take the money and the state that's losing its legislative jurisdiction. I get the instinct that something there needs to better justified or better explained.
Dan: Yeah. What do you think the answer is to that question, more generally, the spending clause. I think we've mentioned that RLUIPA issue, right? Because there's a pending cert petition about it.
Will: By amazing Zach Tripp.
Dan: Yeah. Landor v. Louisiana Department of Corrections & Public Safety. I was just pulling up the docket to see if I'd missed any developments in that case, but no, that was filed, and there have been about eight or nine amicus briefs filed in support of the petition, and the government has gotten a couple of extensions of time to file the response. And so, the response is going to be filed August 7.
Will: Oh, tomorrow.
Dan: And so, I think that means the case will be there in time for the long conference.
Will: That should be. Yeah.
Dan: Yeah. So that would mean that we would know likely what's going to happen in that case by late September, early October.
Will: Okay. Hopefully we'll get to analyze it in season five.
Dan: Yeah.
Will: My instinct is that there is a difference between states consenting to the money and private parties consenting to the money.
Dan: If the state consents, then that law should have the ordinary force of law the way any other congressional statute does enact it under some other power.
Will: I don't know if it's exactly the same. But yeah, I'm just a lot less worried about it. There's less of anomaly if the state is consented. I can't figure out how a private entity consenting to take money then leads to-- It's harder that leads to at least limitless preemption. Now, at the same time--
Dan: Can't you think of problems in the other direction? Like the federal government decides it wants to spend money for environmental cleanup, and then State of Texas just says, “Environmental cleanup is illegal.”
Will: Yes. So, the real problem is spending power. Once upon a time, James Madison had this idea that Congress can only spend money in the service of its enumerated powers, like spending money with itself, the necessary property, something else. And then this is pretty tidy because then you could say, “Look, if the federal government has an environmental cleanup power, one of the things it can do is spend money on it. And of course, Congress, Texas can't block the federal environmental cleanup power.”
The problem is if we assume the federal government doesn't have an environmental cleanup power on its own, like it lacks the power to just require environmental cleanup, and therefore it lacks the power to just preempt Texas anti-cleanup laws, and then the spending clause is its workaround, its only way to generate a cleanup power. Thats where it then seems odd, the tails wagging the dog or something, or the horse is wagging the cart, to say that Congress ability to spend money in service of environmental cleanup, a power it does not otherwise possess, then stops Texas from blocking environmental cleanup because Congress wants to spend money on it. That seems like something has gone wrong there.
Dan: So, you would adopt the rule that the spending clause, that Congress can only spend money in pursuance of enumerated powers?
Will: Yes.
Dan: Okay. That'd be a big change, right?
Will: It would, yes. I mean, it might not be that big a change given how broad the enumerated powers are now. [chuckles]
Dan: But you also want to make those narrower, don't you?
Will: I don't feel as strongly. I'm not a commerce clause zealot.
Dan: But you're a spending clause zealot?
Will: Well, I would like us to figure out roughly what powers we think federal government has and what powers we think left to the states and then consistently enforced that rule across the enumerated powers. I think trying to have a really strong view as to one power and then let Congress use the other powers to make that rule meaningless is not a good way to interpret the Constitution.
Dan: Now back to this statute, under the broad contemporary commerce clause doctrine, don't we think Congress just would have the power to mandate certain standards of care in emergency rooms? They're in commerce. I don't know any emergency rooms that are not accepting money for services.
Will: Is that enough under NFIB v. Sebelius?
Dan: It's activity, it's not inactivity, right?
Will: Okay. Fair enough.
Dan: I mean, I don't think NFIB v. Sebelius would say you can't regulate emergency rooms that are actively in participating in the healthcare market. Like, maybe it would say you can't regulate spiritual healers who don't accept any money for their services or I don't even know what the right hypo is.
Will: But even that, under Gonzales v. Raich, presumably you can regulate spiritual healers as long as there are a lot of nonspiritual commercial healers.
Dan: Yeah.
Will: I think under the commerce clause cases that are on the books, this is probably a valid commerce clause legislation. Because also under the Ollie's Barbecue, and Katzenbach v. McClung, as long as the speculum was manufactured at a manufacturing plant in another state, there's probably enough of a commerce clause hook to regulate all the activities that are adjacent to it.
Dan: And it's probably almost certainly a stronger case than in Ollie's Barbecue, where there was no evidence in the record of selling barbecue across state lines. Almost, I would imagine, basically every emergency room interacts with health insurance companies that are across state lines. That has to be the case.
Will: Well, health insurance is done on a state-by-state basis, and these are a lot of our Medicare patients. But sure.
Dan: Well, it is. But a lot of it's done a lot by multistate, my health insurance company is not headquartered in Missouri.
Will: That's true. Although I will say you don't hear of a lot of women traveling across state lines to Idaho to receive abortion services. You hear a lot in reverse.
Dan: No, but we're just talking about the general question about whether Congress has power to regulate the practice of medicine in emergency rooms generally.
Will: One of the questions would be, I think, how broadly or narrowly do you draw the circle?
Dan: Do you do it on medical procedure basis?
Will: I mean, this is one of the things where the court is famously not consistent. In Lopez, the court seems to be asking a narrow question about the activity rather than accepting the question is education broadly or even guns in schools broadly?
Dan: And Congress has actually, I think, under the commerce clause, forbidden certain kinds of abortions, the Partial-Birth Abortion statute.
Will: Yes.
Dan: I don't think the court ever addressed a commerce clause argument about that, right?
Will: I think Justice Thomas did, but maybe even he said it was not raised. But I was going to say, I agree with you about all that and yet, at the same time, if Congress were to pass a nationwide law banning abortion in all cases except for the life of the mother, do we really think the court would uphold it? I don't.
Dan: This court?
Will: This court.
Dan: Why would this court shrink it down on commerce clause grounds?
Will: Yes. Maybe two commerce clause votes plus three Dobbs wrong votes, I'm not sure. But a critical mass--
Dan: There could certainly be some votes to uphold it under the commerce clause.
Will: Yes.
Dan: Justice Alito would uphold it.
Will: [laughs] Why do you think that?
Dan: Do you disagree?
Will: I'm not disagreeing. I just wanted to know why you thought that.
Dan: You know why. Because Justice Alito seems to have views about the issue, and he's also not super, super formalist. You agree with me?
Will: I agree with you.
Dan: Okay.
Will: I would say Justice Alito has made it clear he's not interested in narrowing existing precedent, in a case where that would lead to an outcome. He also thinks is really bad, not the Gundy principle. If we're going to resurrect the nondelegation doctrine, it's not going to start with sex offenders. And I think similarly, he would say, “If we're going to start the commerce clause revolution, we're not going to start with abortion.”
Dan: Yeah. That's a charitable way to do it.
Will: Justice Thomas, Justice Gorsuch, I'm not sure, even Justice Barrett, even Justice Kavanaugh. I'm not sure where his Dobb’s concurrence puts him on the federalism questions.
Dan: Yeah. Anything else to say about this one?
Will: Actually, I have one last question about this. What do you think of theory that the real reason the court dig the case is because it's an election year and the court wanted to not issue another antiabortion opinion in an election year.
Dan: Do I think that's the main reason? No. I mean-- [crosstalk]
Will: Do you think that's doing real work?
Dan: Maybe. Maybe it's in the background. Maybe they're not thinking about it consciously, but maybe. I don't know. I mean, I'm not going to rule it out. Would you rule it out?
Will: Yes.
Dan: Why?
Will: I just think--
Dan: You just think those things never come into play?
Will: I don't know about never. But maybe it's just that when I heard that theory, I thought, “Huh. I never thought about the case that way. And I can't imagine the Justices who I assume are like me would think about the case that way.”
Dan: Really? That came to mind to me, like, election year abortion case. I mean, it must not be lost to the Justices, how much of a political impact Dobbs has had.
Will: I do think that point is regularly made to them by the protesters outside their houses.
Dan: But also, just looking at the results of elections.
Will: That's true. I forgot that's it’s an election year because it just seems like it's always an election year at this point.
Dan: Trump is always running for president.
Will: [laughs] Will be until he's dead. Yeah. It's the midterms, it's the primaries. [laughs] It's not like there's some period where we're not focused on national politics in the major news media.
Dan: I guess I do think that there's maybe a bigger impact to Supreme Court decisions in even numbered years than odd numbered years, and they're highly politically salient.
Will: There's a study-able question in there, I think.
Dan: Yeah, might be.
Will: If that's true, and if this is the thing the court cares about on the margins, you'd expect controversial decisions to be more common in odd numbered years than even numbered years, right?
Dan: I would expect them to be more controversial.
Will: Well, you expect the court to try to push the controversial cases to the odd numbered years. [crosstalk]
Dan: Well, I mean, there's two issues there. One is, do they have more of an impact in even numbered years? And two is, do the Justices respond to that? One could be true, and the second could be false. Whatever.
Will: Yeah. Okay, fair.
Dan: Okay, next, Moody v. NetChoice. Another case where Justice Alito does not get his way and where he actually seems to have started out with the case and then lost it.
Will: I don't know if we think he started out with it. I guess that's right. Yes.
Dan: Don't we think that?
Will: We do think that, you're right. Also, another case that starts with M.
Dan: That's the through line.
Will: That’s the real theme.
Dan: Yeah. So, this one is weird. It is about two different state laws from Texas and Florida, which are somewhat different, but both, I don't think we need to necessarily dig into all the specifics, but are both aimed at trying to get tech companies, social media companies, and possibly more than social media companies to not discriminate against certain kinds of speech.
Will: Yes. And in broad strokes, I think the Texas law is a social media companies can't content discriminate except forms of content discrimination that are themselves, like, unprotected by the First Amendment. Like child pornography.
Dan: Yeah.
Will: And the Florida law is more like, there are particular people like politicians running for office.
Dan: They can’t viewpoint discriminate, right?
Will: The Texas law?
Dan: Yeah.
Will: Maybe that's right. I'm not sure, actually, but I'm also not always sure. I understand the difference between content discrimination and viewpoint discrimination anymore.
Dan: Just looking at the opinion maybe I'm jumping ahead. But the Texas SG said that a platform could remove all posts about Al-Qaeda regardless of viewpoint, but it could not stop pro Al-Qaeda speech without stopping anti-Al-Qaeda speech. So that seems like it's a viewpoint discrimination ban. This is on page 23, footnote 8.
Will: Yeah, I see that. I remember that. I'm not sure whether that was a correct statement of Texas law as I understood it, but maybe, which then goes to the Moyle problem. But yes. Okay, point taken. And the Florida law is basically more about particular people and particular elections and particular events that can't be regulated or censored. But in both cases, they involve the state attempting to impose some kind of a free speech norm on a private actor that is itself in some ways a conduit for other people's speech. There are a lot of questions about how to think about that and how to square that with First Amendment precedents.
Dan: Yeah. And so, the plaintiff in these cases was not an individual tech company, but a trade association, two trade associations, NetChoice in the computer and communications industry association, that brought facial challenges against the two laws in two different district courts in Florida and Texas.
Will: Yes.
Dan: What does facial mean for those less informed listeners?
Will: Oh well, at a high level, there's a difference between saying this law is just unconstitutional. There's some feature of the law that makes it always unconstitutional, versus this law is unconstitutional as applied. The law is mostly fine, but as applied, to me, in my situation, it creates a Constitutional problem. And those are like, the two main kinds of constitutional challenges. And supposedly, facial challenges are rare and very hard to bring because you effectively need to prove that it would be unconstitutional as applied to almost anybody. But sometimes, there are features of a law like it's enacted with discriminatory intent or the president didn't actually sign it or something like that are facial. They don't change from person to person. And other times, that's not the nature of the challenge.
Dan: They get on its face, it's racially discriminatory.
Will: Yes. In practice, actually defining these categories can get complicated. And the court has also created special rules that make facial challenges easier in the free speech context than for other doctrines, partly under the banner of something called First Amendment over breadth but that's the high-level difference. From the challenger's point of view, they would have said, “Look, there's this basic First Amendment principle encoded in several cases, that a publisher's decision of what to publish is itself protected First Amendment activity and in particular, imposing equality norms or must carry norms on the publisher is bad, is a First Amendment forbidden thing to do.”
The most famous case is probably the one involving the Miami Herald v. Tornillo, where Florida had a rule that a law that basically, like, “If you were criticized in the newspaper, the newspaper was required to carry your response,” and the Supreme Court said, “That's unconstitutional. That's like up to the newspaper to decide what it wants to carry, as he can't do that.” And so, they wanted to say, “These laws are like that. And like, the very structure built into the law is basically that, anti-constitutional purpose. And as long as we agree that Twitter is like a newspaper, then these laws are facial and constitutional.”
Dan: And so, the court is going to say in an opinion by Justice Kagan, basically that NetChoice didn't do enough to make a facial challenge.
Will: Yeah.
Dan: Didn't give the lower courts enough to work with, didn't make sufficient arguments, didn't build enough of a record.
Will: Yeah.
Dan: But then the court is going to go on and do something weird, right?
Will: You mean where it's going to opine on a lot of these things.
Dan: Yeah. It's going to say, “Well, there was not enough here for facial challenge, and we can't figure it all out ourselves. But why don't we tell you [chuckles] a bunch of First Amendment principles.”
Will: Yeah. So, two things to say about that, I guess. One is, and this goes to your point about who litigated the case. I think at argument, it emerged, and Justice Barrett was particularly persistent on this point, that so much is swept into this challenge, if you start to think about it. We're not even just talking about Twitter. Everybody litigates the cases that we're talking about Twitter and Facebook. But the definition of social media company includes like Etsy, where people post weird Harry Potter related crafts for you to buy for your children. And is that also expressive and the same kind of thing? It's not clear. And then even within a social media company, there are actually different major kinds of things going on, like Twitter or I guess, X, as you like to call it.
Dan: Yeah, I don't like to call it that.
Will: Well, you're pretty meticulous about it.
Dan: Well, sometimes I just feel I have to.
Will: I think the court decides to call it Twitter.
Dan: Yeah, well, X appears in there as well.
Will: It does. But I think the Twitter has three feeds. It has the chronological feed, the Twitter curated feed, and then it has direct messages. And those might all be different. You might think the chronological feed-- the curated feed is the most, like the Miami Herald, where Twitter is making a choice about what it thinks you should see. And that's their First Amendment right to do as the Miami Herald of Twitter. And the direct messages, you might think, are where they have the least interest in stepping in, because that's primarily just about ways for the users to communicate to one another.
Dan: Yeah. And no other person is seeing the direct messages, so no other person would be attributing Twitter's speech to the message.
Will: And the users already have the ability to block and disable direct messages. So, who is being enabled there. And does Twitter have a First Amendment right to present a chronological feed with some amount of filtering and blocking might be somewhere in between. And so even at that level of, like, what are the sites and what are the parts of the sites we're talking about, the Justice started to think, like, “This is more complicated, and that makes it hard to do a facial challenge.”
Dan: Yeah. So, I'm a little confused by what happens here. So, if basically the answer is, NetChoice screwed up and didn't do what it needed to do, why doesn't NetChoice just lose?
Will: Well, the other subtext is, I think the court thinks that the Fifth Circuit may be also screwed up or overreached.
Dan: Yeah. I mean, it basically says that. Because the Fifth Circuit just had a pretty broad holding that this is fine under the First Amendment, and the court doesn't like that. And the court sort of says, “Oh, by the way, here's why the Fifth Circuit screwed that up.”
Will: I mean, the Fifth Circuit opinion is, which is written by Andy Oldham, who I clerked with and consider a friend, but is written in, I think, intentionally aggressive posture. And I think it begins by saying, “We're first going to consider the original meaning of the First Amendment before we eventually consider what the Supreme Court says about the First Amendment later.” [laughs] And the question here is, “Is there a First Amendment right to censor other people's speech?” And once it frames it that way, it's pretty skeptical. And, just in general, frames the case in a way that's not how the Supreme Court wants to frame it or how the cases framed it. And so, I think that may be why the court feels more of an obligation to say, “Look, don't do that.”
Dan: Yeah.
Will: “You can try again if you want to,” slice and dice about what's at issue and who's at issue and the like, but they want to take that polar position off the table. I don't know if they're allowed to do that exactly. That's another-- [crosstalk]
Dan: No one's going to stop them.
Will: [chuckles] Well, Andy Oldham might stop them.
Dan: By what? Ignoring what they said?
Will: By including the Supreme Court lacked jurisdiction to opine on a bunch of things beyond the court and advisory opinion.
Dan: No. I mean, he could try.
Will: He could try. I'm just saying. I mean, in a way, of course, the same thing is true in Moyle. In Moyle, the court ultimately agrees to dig. And so, everything the Justices say beyond that is extra, right?
Dan: Yeah.
Will: But there are reasons. They all want to tell us that and to provide guidance and structure of the case, how it's going to come out in the future.
Dan: But Justice Alito has an opinion concurring in the judgment that I guess because it's concurring in the judgment reaches the same disposition, but then is much more skeptical of the First Amendment claims.
Will: Yes.
Dan: Do you understand why he agrees with the judgment, the judgment being vacated, remand, including in the Fifth Circuit case?
Will: Why doesn't he want to just affirm in the Fifth Circuit case?
Dan: Yeah. What exactly is the error in his view? I mean, if his view is basically-- maybe he doesn't have to agree with all the reasoning, but his view is, “Well, NetChoice, you just didn't do what you needed to do,” right?
Will: Yeah.
Dan: Why does NetChoice get a do over?
Will: I don't know the answer to that question.
Dan: [laughs] Okay. I thought I was missing something. Is this a function of, basically, like, Justice Alito was going to have the opinion, and the disposition was a compromise that people coalesced around. And then in the course of trying to explain that disposition, he wrote something that was too favorable to the state?
Will: Maybe. I'm wondering to what extent it's also a function of the consolidated cases. They're going to remand at least one of the cases.
Dan: Yeah.
Will: That is weird.
Dan: It just seems like the only binding holding in these decisions at the very end of his opinion is that NetChoice has yet to prove that the Florida and Texas laws they challenged are facially unconstitutional. But why would you vacate a lower court ruling on the ground that the losing party failed to prove what it needed to prove. That makes no sense to me.
Will: Right. I mean--
Dan: I mean, at least what the majority is doing makes a little bit of sense, which basically, what they're saying is, “Look, your outcome was not clearly wrong, but you needed to do more here, and your reasoning was really wrong with respect to the Fifth Circuit.”
Will: Right. The majority is saying, in some ways, it's almost like a threshold question. You thought you should just dive in and go section by section to figure out whether the law is constitutional. But really, you framed the whole thing the wrong way, and you just need to start over. And I guess that's also what Justice Alito would be more likely to agree with that the Fifth Circuit was wrong to actually try to uphold these provisions on the merits rather than to uphold them on a different ground. But it still seems like it should be the judgments correct in his view.
Dan: I think so. So, I'm not sure. I was hoping you were going to have a better defense.
Will: No, I find that baffling.
Dan: Okay.
Will: And as I understand it, as we now think, Alito, whose dissent is joined by Justice Thomas and Justice Gorsuch, according to the leaks he was originally writing for the five of those three, plus Barrett, plus Jackson, is proving to be quite a maverick in terms of, in these ideologically polarized cases.
Dan: Mixing it up. Justice Thomas also agrees with the disposition. But again, why does he agree with the disposition? So, he writes an opinion agreeing with Justice Alito, agreeing with the disposition of vacate and remand, and then writes an opinion saying that courts don't have authority to do facial challenges at all.
Will: Yeah.
Dan: So, then is his position that maybe they'll still win as applied in the Fifth Circuit, didn't give them a chance to make the as applied argument or didn't focus on the right things.
Will: I guess so. This is where I became confused also, because as applied to who? Because, of course, the law is not applied to NetChoice, which is itself not a social media company.
Dan: Yeah. I mean, you need to make arguments about the members.
Will: I guess you'd say on remand, NetChoice will identify its member and identify the application they actually object to, and at a minimum, get to maybe say that, although it's funny, because Justice Thomas doesn't believe in associational standing. [laughs]
Dan: Yeah.
Will: So, Justice Thomas has this earlier line of opinions criticizing the overbreadth doctrine in First Amendment cases and more broadly consider criticizing the nature of facial challenges and each of those tend to build off of the previous one.
Dan: Yeah.
Will: So, he's building off here into a general criticism of facial challenges. That I understand. But I agree the judgment thing is weird.
Dan: But maybe he thinks that the Fifth Circuit should have dismissed for lack of jurisdiction or something.
Will: Maybe. I do think these read to me as if the court thought once it put the two cases together, and I'm not sure they're ever officially, I'm not sure exactly in what way they are together, [laughs] but once they're together, that it could think of that as a lumped judgment. Judgment was to [chuckles] vacate and remand to those two different courts in the south to figure things out without thinking through the two different cases. But I don't think that's how it's supposed to work. So, maybe I'm missing something. Maybe listeners will point out the obvious explanation for this behavior that we've missed, and we will sheepishly explain it on the next episode after vacation.
Dan: Yeah.
Will: Sometimes at the end of the term, things are happening fast. It's hard to keep track of everything.
Dan: Okay, so Justice Jackson joins part of the majority doesn't join everything. She seems to think that she agrees that they should say, “Didn't clear the bar on the facial challenge.” But then doesn't like the court opining on the merits, but wants to send the lower courts, send the cases back and say, “You look at these at the right level of specificity,” and so do we think originally, Justice Alito was writing an opinion and she was going to join that, the whole thing and then he ends up adding more about the merits in response to Justice Kagan or what was wrong with his opinion, originally-
Will: I do wonder about that.
Dan: [crosstalk] -to lose the majority.
Will: I mean, I guess one question is, how much does it push and how much does it pull? Justice Barrett wanted to see more about the merits and that Justice Kagan was willing to deliver, and so he lost her first. Or how much was it, Justice Alito trying to say too much about the merits, and so he scared off Jackson and Barrett. I don't know. It seems like it should have been that Justice Alito was saying-- and it would make sense for Justice Alito to have the judgment line he does if his original opinion was not talking about the merits, but was saying both courts erred in asking their own questions. Both courts erred in treating this as a facial challenge when it should be treated as an as applied challenge, go back--
Dan: But did it or isn't his position just that NetChoice didn't make the arguments he needed to make to bring a facial challenge, in which case NetChoice should lose.
Will: Yeah, well, maybe did NetChoice make as applied challenge as a backup in the lower courts? Maybe they did and the Fifth Circuit didn't adjudicate it, I'm not sure. I'm just saying you could imagine an original, and also to what extent our facial and as applied challenges different claims, and to what extent are they part of the same claim? But you could imagine an original Alito assignment that was, “Tell both courts they looked at this the wrong level of generality,” like the Jackson concurrence.
Dan: Yeah.
Will: And that over time it morphed into something different.
Dan: But I guess the question is, were people mad because they wanted to shade the merits more or were they mad because he was shading the merits in a direction they didn't like?
Will: I don't know.
Dan: We will find out in 30, 40 years.
Will: Maybe so. And then Justice Barrett also wants to see more. And so, she writes her own list of questions and complexities--
Dan: But she joins the whole thing.
Will: Yeah, she joins the whole thing. One thing I thought was interesting is she has this couple of paragraphs about some what ifs that are a little strange at first. These are at page two to three of her concurrence. “What if the platform's algorithm just presents automatically to each user whatever the algorithm thinks the user will like? What about AI? And then also what about different kinds of corporate structure and ownership? And what about foreign ownership?” I think both those paragraphs are basically about the ongoing litigation about TikTok, which we believe has an algorithm that works like that, that feeds you whatever videos you keep scrolling on, and is owned by China.
Dan: That's certainly what came to mind for me.
Will: Yeah. And so that seems extra weird in some ways, to just have a couple of paragraphs, sub-tweeting [crosstalk] circuit case with that discussion. Although she's right that it's like a major case the court's presumably going to be asked to take soon and they should be careful about implicating it. It just was a funny way for it to--
Dan: Couldn't a foreign company just always get around that by just incorporating a US subsidiary?
Will: I mean, they could if they want to, but they have to give ownership to the US subsidiary, which then has different control.
Dan: But it's wholly owned by the foreign corporation, does that matter? It just seems like--
Will: I'm not sure if that look at the TikTok law, I'm not sure if the ownership by a wholly owned US subsidiary complies with the law.
Dan: No, I'm asking a different question. I'm asking about the constitutional rights question.
Will: I don't know if US corporations that are wholly owned by foreign corporations have the same constitutional rights as US corporations that are not-
Dan: Okay.
Will: -with that.
Dan: Yeah. She says, “Corporations which are composed of human beings with First Amendment rights possess First Amendment rights themselves.” So, I guess if the corporation is wholly composed of people with no First Amendment rights.
Will: Right. Either human beings who are foreigners who might not have as many First Amendment rights, or the corporation itself is composed of other corporations.
Dan: Yeah.
Will: Yeah. That's complicated. And I'm sure we'll have to get into it in another season.
Dan: Yeah. All right. Well, I'm curious to see what the lower courts do with this one having gotten some guidance.
Will: So, one way to see both these cases is like a pretty good showing for Justice Kagan. Right?
Dan: Yeah.
Will: Like, here you are as Justice Kagan, an incredibly smart and accomplished, in some ways, leader of the quite outnumbered wing of the court.
Dan: Yeah.
Will: And I sometimes heard suggestions that she's sort of like, trying to figure out what to do with herself or how to try to make a difference. And these cases suggest, like, she can pull cases away from Alito, she can negotiate perhaps for a much different treatment abortion case. She can really move the needle, even not being the swing or even swing adjacent.
Dan: Yeah. Now being in a position of strength.
Will: Yeah. That's impressive.
Dan: And it suggests she's been playing a long game and an inside game. I think we've observed before she does less in the way of public signaling. She writes very few, if any dissents from denial of cert, stuff like that. I think she is focusing her efforts on her majority opinions and dissents from argued cases and strategery inside the building.
Will: Yeah. But if she can write things that convince Justice Roberts, Justice Kavanaugh and Justice Barrett in some of the ideological cases, that's got to feel pretty good.
Dan: Yep. All right.
Will: Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Please keep the emails coming to pod@dividedargument.com as we go on a brief break.
Dan: And rate and review on the Apple Podcast store or wherever you get your podcasts. Check out our website, dividedargument.com, where we post transcripts of the episodes fairly soon after they are released. store.dividedargument.com for merchandise and our voicemail line is 314-649-3790 and if there is a long delay between this and our next episode, there just is going to be one because you're going to be on vacation. There's not going to be a funny reason. So, sorry.
Will: Wow, that was unpredictable. [Dan laughs]
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