Dan and will try to catch up on the flurry of news from Thursday afternoon, including an update on the Acting Solicitor General and the Court’s surprising grant of injunctive relief against New York’s eviction procedures. Come for the breaking news, stay to find out how Dan procrastinate and to learn the relevance of Catskills humor to the shadow docket.
Dan and will try to catch up on the flurry of news from Thursday afternoon, including an update on the Acting Solicitor General and the Court’s surprising grant of injunctive relief against New York’s eviction procedures. Come for the breaking news, stay to find out how Dan procrastinate and to learn the relevance of Catskills humor to the shadow docket.
Dan (00:19):
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will (00:27):
And I'm Will Baude. Hey Dan, this podcasting thing is pretty hard.
Dan (00:30):
Yeah. Talk about unscheduled and unpredictable. You know what else is unscheduled and unpredictable? The Supreme Court and Supreme Court news because I think an hour after we recorded yesterday's episode, a bunch of stuff happened that made our episode and our discussion kind of pointless.
Will (00:51):
I may owe you a mea culpa. I think, when we talked about the shadow docket in our very first pair of episodes, I think you voiced the complaint that the shadow docket rulings happen at unpredictable times, and that makes it harder for people to cover the Court, and I said I didn't think was a big deal. But, now that it's affected us, I am personally annoyed by it. It's officially a big deal.
Dan (01:11):
Yeah. I thought, Thursday afternoon in mid-August was not really a time when the stuff would be going on, and that there was some danger of being preempted, but we were like... Multiple things happen that really... Each one, they happen in succession. With each one, I was like, "Oh man, that jams up our episode."
Will (01:31):
Right. I know one of them is a big deal, to be clear, but enough things have happened that I feel like we owe people this short update before we disappear for a few weeks. Okay. So, where should we start?
Dan (01:41):
Oh, I guess smallest thing first. I mentioned this pending request for an injunction against Indiana University's vaccine mandate that was pending in front of the Court for several days, and a few minutes after we stopped recording, Justice Barrett denied that application, so guess we didn't need to talk about that. It's a little interesting that it took her six days to deny the application without getting a response or officially referring it to the Court.
Will (02:07):
It's August, maybe she's on vacation.
Dan (02:09):
Could be. I suspect that that's the kind of case where you might just informally check around and make sure that nobody minds that you're not submitting it to the Court. You wouldn't want to do this and then have some other Justice go off about it. I think we can safely say the Supreme Court is not interested in interfering with...
Dan (02:27):
Like, you think she got on their group text thread or something, and was just like, "Does anybody care about this?"
Will (02:32):
Do they have a group text thread?
Dan (02:34):
I don't know. I mean, it's August. How are they communicating? Are they communicating at all? Aren't they all on vacation?
Will (02:38):
I think you just ask your law clerks, like, "Do you think anybody's going to be interested in this?" And then you...
Dan (02:43):
Okay. Maybe so, or maybe she just didn't look at it until yesterday, and was like, "Oh, they want me to do this by tomorrow? No. No way."
Will (02:50):
Yeah. Right. There's a deadline that always focuses the mind. All right. We can wash our hands of that.
Dan (02:55):
Okay. Forget about that one.
Will (02:56):
Sorry I brought it up.
Dan (02:58):
Don't be sorry. It was mildly interesting.
Will (03:01):
You never wanted to talk about it in the first place.
Dan (03:03):
I, you know, wasn't opposed to it. It's just a thing, and it ended up not mattering.
Will (03:10):
You were right. I was wrong.
Dan (03:12):
I'm going to just record that, then I'm going to excerpt that little clip and just... [crosstalk 00:03:18] But then I can insert that whenever I... Would you notice if I just started inserting that?
Will (03:21):
I listen to the show, Dan. You don't.
Dan (03:24):
Yeah. You're our proof listener. I tend not to be good about that. Okay. That's the smallest one. Next smallest one is, I think we speculated about what was going to happen with the acting solicitor general position after the nomination of then current acting solicitor general-then current acting solicitor general- Elizabeth Prelogar, and we were, kind of, speculating whether she was going to remain, go back to being principal deputy, and so forth. But that... after we recorded, situation there became clear. And, as I understand it, Brian Fletcher, who had currently been counselor to the attorney general is now going to be the new principal deputy solicitor general, and also the acting solicitor general of the United States.
Will (04:14):
Okay. He's both. [crosstalk 00:04:17].
Dan (04:17):
I believe that to be the case.
Will (04:18):
Do we also believe he's principal deputy?
Dan (04:20):
I believe that to be the case, based on... I sort ofasked some questions about this on Twitter, and then accidentally pulled into my orbit the heavyweights of hashtag acting Twitter, which is led by Anne O'Connell of Stanford, and also a big participant is Steve Vladeck, who comes up on every other episode. He's got his hands in a lot of things, and there was a lengthy discussion about that, about who can be the acting, whether the acting could be somebody who's not the principal deputy. And I think-I think where we landed... There was a lot of back and forth. I think where the titans landed is that, because of the timing at issue, to be the acting, Fletcher needs to be the first assistant, which means he needs to be the principal deputy solicitor.
Will (05:20):
Okay. I saw that happening on Twitter, and I couldn't follow it because, boy, the Federal Vacancies Reform Act is really complicated and hard. I'm glad you followed it and told us all.
Dan (05:33):
You think I followed it?
Will (05:35):
I was even briefly part of acting Twitter a couple of years ago, when there was this constitutional question about whether somebody who had not been confirmed by the Senate could be acting to a position that is Senate confirmed. When Matthew Whitaker was the acting attorney general, everybody was losing their minds because they thought he was going to stop the Mueller investigation. [crosstalk 00:05:54].
Dan (05:54):
And there was that big dust-up about the CFPB. Right? And who could be the acting director of the CFPB, and so forth.
Will (06:02):
Yes. But if you don't use it, you lose it, and I've lost it. Great. Congratulations, Brian Fletcher. That'll be great.
Dan (06:09):
Yeah. And so, Brian Fletcher, also someone from my time at Harvard, although he was a couple years ahead of me, so I don't know him personally, unlike general designate. What's the right title for a nominee who hasn't been confirmed yet? General designate? General nominate? Prelogar. I didn't know him personally, but he was more like a figure of legend because he graduated summa cum laude, and was president of law review, and won the Ames Moot Court Competition, and I think he's the only person in history to have done all of those things simultaneously.
Dan (06:45):
And then, he also famously made these really cool PowerPoint-based flowchart course outlines that were passed along to future generations of students in awe, and so, considered a very able lawyer. So, we have two extremely able lawyers who are going to be in the SG role. We're going from acting SG Prelogar to acting SG Fletcher, and then presumably to confirmed SG Prelogar. So, lots of talent in that role, lots of Harvard talent in that role, and both former clerks of current attorney general Merrick Garland.
Will (07:27):
Prentice. Prentice.
Dan (07:28):
Which I don't think was the determining thing, but it doesn't hurt. Right? Doesn't hurt if you're trying to do something important in the current DOJ.
Will (07:37):
I'm sure it doesn't hurt a lot. I feel like it's overdetermined. I feel like, even if the attorney general were somebody else, there would be a lot of Merrick Garland clerks in [crosstalk 00:07:43].
Dan (07:43):
Yes. Fair. Fair. Okay. Then, there was a lot of discussion in the thread about the different sub-provisions of the Federal Vacancies Reform Act, and stuff like that, which... I don't know if this is what's wrong with me as a lawyer. I learn stuff like that when I have to. There was that case, Southwest General where I actually got pretty deep into the FVRA, and I learned it all. And then, I just forget it. I forget it. I've heard it said, I think my grandfather once said, I think quoting some other, more general saying that lawyers need to have a bathtub mind. You fill it up and then empty it out. And so, my mind is currently empty with respect to the knowledge of the FVRA.
Will (08:25):
Yeah. I study those kinds of things when I need to procrastinate, usually. I find writing articles really kind of frustrating. You're trying to make a theoretical point, or something, and then, when I'm stymied, I'm like... Just need some excuse to go find some intricate statutory scheme, and...
Dan (08:40):
Because we learned last time you're anti-TV.
Will (08:43):
And TV is great. TV is wonderful. I highly recommend it.
Dan (08:47):
You know what I do to procrastinate?
Will (08:49):
Tell me.
Dan (08:50):
I research productivity software.
Will (08:54):
Really?
Dan (08:56):
I'm so busy learning productivity software, I don't always have time to be productive, but I know a lot about productivity software.
Will (09:04):
I use email and notes. Those are my productivity software.
Dan (09:09):
I'm trying to bring you into the early to mid 21st century on your technology. It's a struggle.
Will (09:14):
And you have me trying to use this Microsoft teams thing, and it's already confusing me again.
Dan (09:18):
It's working well, working well for us.
Will (09:20):
I'll figure it out.
Dan (09:22):
Someday. [inaudible 00:09:23] teaching me about password managers the other day.
Will (09:26):
I'm never going to do that.
Dan (09:27):
I'm afraid you still have your passwords all written down on like a post-it note in your desk or something.
Will (09:32):
What's wrong with that?
Dan (09:34):
Haven't you seen Ferris Bueller? There's a real danger of hacking.
Will (09:38):
At this point, I feel like the hackers I'm worried about are not the ones who are at my house.
Dan (09:43):
It's because your kids aren't old enough yet. Just give it time.
Will (09:46):
Fair enough. Fair enough.
Dan (09:48):
Okay. And then, I think by far the biggest developments are related to eviction moratoria, plural.
Will (09:59):
Did you know that there was another eviction moratorium we were going to have to talk about? Was this a surprise to you?
Dan (10:04):
I try not to admit to ignorance on the show, but frankly, I was not aware of any of that stuff. I should have been aware there was stuff happening. Really should have been aware that the Court was poised to do something big with respect to New York's state eviction moratorium, but I was not paying enough attention. And-and so, again, this was one of the multiple things that happened. I think you texted him, and he was like, "Oh, this is pretty big. This is the one that really made us think. We talked about, like, "Should we just scrap that whole episode?" So, yeah. Two things with respect to eviction moratoria. Let's do the smaller one first-
Will:
Okay.
-which is related to the one we talked about, the federal eviction moratorium introduced, the new one by president Biden. We're back in the district court, that's being challenged. District court in DC refused to stop that.
Will (11:02):
Right. And this disturber [had stopped the previous one. So to be clear, this is a disturber who is sympathetic on the merits, but who concludes that the law of the case doctrine, the fact that the DC circuit has already ruled, prevented her, [inaudible 00:11:14] Friedrich, from lifting the stay. Yeah.
Dan (11:18):
And so, the law of the case is a little bit different than precedent. Right? It's the precedent for a particular case, rather than something that governs in future cases.
Will (11:27):
Right. It's more like res judicata. It's a single-case res judicata. It's like, "I already ruled in this very case. It was already appealed. I already lost." Like, we can’t-when a case goes up and down, it's not...
Dan (11:40):
But wouldn't the next logical step be to then just file a new case, or maybe get a slightly different plaintiff, or something? [crosstalk 00:11:46] That could be controlled. So then the question would be, does the earlier DC circuit ruling declining to stop the eviction moratorium control?
Will (11:57):
Right. I don't know why you'd bother, though, because I think you could just... I assume they're going to appeal the DC circuit. I guess there'll be a question whether the DC circuit can reconsider its ruling, whether it's also law of the case. And then, you'll just go from there back to the Supreme Court. If you want to get to the Supreme Court as fast as possible, which I assume the plaintiffs do, you may as well just...
Dan (12:12):
And, as we'll see in a minute, Supreme Court can just do whatever it wants, apparently.
Will (12:18):
Did you not know that, Dan?
Dan (12:21):
Well, I mean, I knew that, but didn't know that they were going to do this. Okay. That's more minor. Bigger. Bigger thing, much bigger thing, is that the Court granted an injunction.
Will (12:34):
Yeah.
Dan (12:35):
This was not on my August bingo card.
Will (12:40):
I think we need new-
Dan:
Hmm?
Will:
-I think we need new bingo cards for the current Supreme Court, Dan. I don't think the old bingo cards work anymore.
Dan (12:48):
Yeah. That's what it's looking like. So, this is case called Chrysafis versus Marks, and it's a case coming out of New York and coming up through the second circuit, and it's not about the federal eviction moratorium. It's about the New York COVID Emergency Eviction and Foreclosure Prevention Act. The C-E-E-F-P-A, as you might be more familiar with it, Will.
Will (13:21):
We just call it CEEFPA around here.
Dan (13:23):
Oh, okay. I was wondering. It sounds better than keef-pah. And I guess there are two kind of key parts to this law, and one of them basically just says, "When you're in an eviction proceeding, and if the tenant can make some showing that they've suffered some hardship as a result of COVID, can’t be-aren't going to be evicted. Right? That part is not an issue here, but there's a different part.
Will (13:57):
What is an issue here is the self-certification provision. Right?
Dan (13:59):
Yes. Where you just say like, "Hey, I am self certifying financial hardship," and then the landlord doesn't get to contest that.
Will (14:10):
Right. So, if you say you have a hardship, we just take your word for it, basically. All right. Then, the Court enjoins this second provision, the self-certification provision, and it does... Again, kudos to the Court for, once upon a time, and the cCurt would have granted these injunctions with just looking at one-line orders. The Court does give us a few paragraphs to explain what it's doing.
Dan (14:29):
But it's pretty unusual for the court to grant an injunction. Right?
Will (14:32):
Less unusual than it used to be.
Dan (14:34):
Yeah. Yes. [crosstalk 00:14:37]. Because a lot of the shadow docket stuff is coming up on stays and vacatur of stays, but this is... Just to be clear, this is the Supreme Court actually itself granting an injunction against something out there in the world. Right?
Will (14:53):
Right.
Dan (14:53):
Which is kind of a bigger deal than just staying a lower court ruling, or something like that. Saying that whatever this district court did, that shouldn't go into effect.
Will (15:02):
Right. So, in terms of the standard of review. I think the second circuit hasn't even ruled yet. Right? This is all still pending in the lower courts, but the Supreme Court comes and issues and injunction on its own, rather than... Which is much more common when the lower court has ruled and the Supreme Court says, "Yeah, we're looking at this. We're probably going to take it in a few weeks. We're going to put it all on pause." And, until-according to the cases, if you issue an injunction, there's sort of a heightened standard review. It has to be indisputably clear that legal rights are being violated, and so on.
Dan:
Yeah.
Will:
Now, the court has granted... Again, Steve Vladeck has the numbers in this. The court has granted more of these injunctions lately than they used to. I think they granted them as early as, like, 10 years ago, when I started writing about the shadow docket. And so, I can't tell if they still think the indisputable standard still applies, and they think this indisputably clear, and the fact that Justice Breyer disputes it doesn't matter to them, or whether they've actually changed the standard for an injunction and just not told us. It's actually like a little bit of a mystery what the rule is for injunctions [crosstalk 00:16:05]
Dan (16:05):
Yeah. Yeah. And let's just try to make clear the breakdown here. So, we have a, I would say, very short opinion. I don't know even if you'd really go so far as to call this opinion. There's, like, three paragraphs.
Will (16:20):
Three paragraphs.
Dan (16:21):
And unsigned. And then, then there's a dissent by Justice Breyer, joined by Justices Sotomayor and Kagan. That's about five pages. About four pages. And I guess we don't know for certain whether all six of the other Justices agreed with the injunction, but presumably-at least five did, and somebody could have just said, "I'm sitting this one out, and don't mark me as a no."
Will (16:53):
Right, right.
Dan (16:54):
[crosstalk 00:16:54].
Will (16:55):
Yeah. It does happen, the shadow docket, unlike the majority opinions that you can silently dissent, that you can vote no, but just not bother to tell anybody.
Dan (17:04):
Yeah. And as you say, Justice Breyer makes a big issue out of whether the righted issue here is indisputably clear, but let's just talk about the majority opinion, whatever this thing is brieflybecause I would say 95% of it, most of the words are about describing exactly what the order is doing. There's a whole paragraph that just says, "We're granting this injunction pending disposition of a writ of certiorari." And then there's sentences explaining what the law is. But then, there's, like, two sentences that say, "This scheme violates the Court's longstanding teaching that ordinarily, no man can be a judge in his own case consistent with the Due Process Clause, citing a 1955 case called In Re Murchison, and then we have a see cite to a 1993 case, United States versus James Daniel Good Real Property, which is the parenthetical set of stands for the proposition that due process generally requires a hearing. Okay? That is the sum total of the legal analysis in this opinion, such as it is.So.
Will (18:20):
I think it's fine. It's not the quantity I'm worried about, it's the quality.
Dan (18:23):
It's both. Right?
Will (18:26):
Well, this is fine. I don't think the Court needs to give us more than a sentence or two in a couple of cases when it thinks something is indisputably clear.
Dan (18:30):
Yes. But this is not indisputably clear. Right?
Will (18:35):
Look, I don't want to rush. How could this even be right? I don't understand. There was a, you know, whole set of case law in the 70s and 80s where the court, in the administrative law and due process context, court fought about the Irrebuttable Presumption doctrine. Did you ever learn about this? They're all of these cases where the state would say something like, "You have a right to something if X is true," and then they'd say, "and sometimes there's an irrebuttable presumption that X is true." They might say, "Only people of good moral character can have a firearm, and if you're a felon, there's an irrebuttable presumption that you're not of good moral character, or whatever.
Will (19:12):
And, for a little while, Justice Brenan and flirted with trying to invalidate those under the due process clause. He'd say... Same argument. "It violates the Due Process Clause not to give you a right to a hearing about whether you have good moral character. They would just say it's irrebuttably presumed because you're a felon." And then, the Court rejected that. The Court said, "Look, if the statutes works like that, it's basically just defining the terms. It's just saying, 'look, if you're a felon, you can't have a firearm,' and it doesn't matter if they get there in two steps rather than one. That should be fine." And I guess I have the same immediate reaction to this statute, which, maybe I'm missing something, but why do we care? Isn't the point just that New York has a very strong tenants’ rights statute, so it's saying if the tenant doesn't want to be evicted, you can't evict them.
Dan (19:52):
What if the law just said eviction is not a remedy that's available? You can get damages, but like...
Will (19:57):
Or if they said, "Eviction is not a remedy if the tenant raises their hand," and the tenant can raise their hand if they want to. Right. Maybe the root problem is that will be clear taking, and if they have to define it this way to keep it from being a taking, and this is like [inaudible 00:20:10] under the Takings Clause, but the Takings Clause is not talked about in this case. The only property rights we're talking about are due-process property rights. I don't understand how...
Dan (20:22):
This goes to my length point, which is like, "You could write an argument and maybe it would persuade us. Maybe it would persuade one of us, but you can't just assert this sentence. The Court's longstanding teaching that, ordinarily, no man can be a judge in his own case, and I looked at this Murchison case. It's about this Michigan procedure that allows judges to act as a so-called a one-man grand jury, with the power to compel witnesses and so forth, and does not strike me as particularly apposite. Seems like maybe it's at best a CF to this provision here.
Will (20:59):
It's the main authority, Dan. It can't be the CF.
Dan (21:01):
I know. Maybe you just say you're making stuff up. I don't know. I don't know. The court seems pretty out on a limb here. This seems hard to describe as anything other than just pro-landlord, pro-property owner, Lochnerism, just sort of, like, saying stuff, making it up because they don't like this. And so, I don't think this was great. Also, can you explain this to me? This law expires in two and a half weeks. Right? This law expires on August 31st. Is that right?
Will (21:34):
Is that right?
Dan (21:34):
As I understand it.
Will (21:36):
Okay.
Dan (21:36):
At least, according to Justice Breyer's dissent. And so, like, won't that make any cert petition moot?
Will (21:45):
Okay. So...
Dan (21:46):
If we're talking about whether you can get eviction, doesn't that make it moot?
Will (21:51):
Maybe. It might not make it moot. I feel this comes up, actually, sometimes where the... It might be that we're still going to have to litigate about the lawfulness of the things that happened in the period. Like, order might end, but if there's somebody who was being evicted right now, we have to talk about whether the injunction was proper or not. Normally, you'd still have a chance to litigate, although now, this will partition the injunction. That's kind of the law of the case.
Dan (22:17):
Yeah. They're just answering the legal question. Right?
Will (22:21):
Well, they did. Yeah.
Dan (22:22):
Yeah. There's not really anything else to do. This is over. No man can be a judge in his own case, therefore...
Will (22:30):
The state could extend the statute if they want to, if the state wants to keep fighting this fight. Right? They could extend the statute and then bring it up to the Supreme Court for, sort of,more briefing. I assume the state is not going to, having learned that they're clearly violating In Re Murchison, and the principle that no man can be judge in his own case.
Dan:
Yeah.
Will:
I have to think that the mootness issue is more, but I think this is just going to go away. I will say again, also, one other nice thing that the court has done. Now, the papers in these cases are all easily available online thanks to the Court's internal docketing system. This used to be a real problem with shadow docket type cases, is you're like, "What is even going on here?" So, you can go get the briefs that convinced the Court, which are filed by a team of large lawyers that gets them done , and they do have more pages on this due process argument. It didn't make any more sense to me when it was in more pages than less, so I'm still not with you that it would be better for the Court to have more pages, but there are more pages out there if people want to read them.
Dan (23:25):
Would you say that, when the Court is doing something adventurous, it would be better for them to try to explain it a little bit better, even if we ultimately disagree with it? Like, that's part of why we have opinions. Right? So they can share their work, and we can evaluate them and decide whether we think it's right.
Will (23:43):
I think this is the right amount. I do think, when the Court is doing something unusual, it's changing the status quo, it's granting an injunction, I do think they should give us some kind of an explanation, just to give us... There were a bunch of different arguments in the petition here. We might not have known which one was convincing . There's also a free speech argument petitioners made that the court apparently is not buying. I think the Court did the right thing in terms of quantity, and I think, if there were a legal argument that made sense to you and me, probably two citations in a sentence is all it would take for us to be like, "Okay. Yeah. I get the idea."
Dan (24:10):
Because it would probably be an indisputably clear legal argument. Right?
Will (24:13):
Well, that would be nice.
Dan (24:14):
Yeah. I guess I'm not totally opposed to them doing something that maybe isn't indisputably clear if the equities turn that way, if it's, like, really important, all that stuff. But, if so, I need a little bit more hand-holding.
Will (24:29):
All I think of the law is that it's supposed to be indisputably clear, so I don't know...
Dan (24:32):
No, I agree with that. That's correct. I'm just saying that's not the part that strikes me as most important, but, like, this is just kind of, this is not A-plus legal work. And so,
Will:
And that’s right...
Dan:
I think that some of the shadow docket criticisms can be sometimes overblown, but this is kind of like-this is not great shadow docket stuff. This is subject to some of the legit concerns. The timing was weird, as we talked about, you know, that screwed us up. That's not the real problem. But, in terms of the reasoning, kind of resolving seemingly a kind of tricky at best legal question summarily without a lot of explanation. That's not great.
Will (25:14):
So, you know the joke about the food being terrible and in such small portions?
Dan (25:18):
Yes.
Will (25:19):
There is this confusion about the presidential status of these opinions, as we talked about as well. If this is the last thing the Court is going to write about this, because now the law's going to expire, and it's not going to come back. Maybe it's better that it's just a sentence or two that don't really, like, mess up this area of law very much, whereas if they'd given us a couple of pages, that might actually have dropped a real bomb.
Dan (25:41):
Although maybe they could have said something like, "There's a reasonable argument, and then here are all the equities, and so forth." But instead, they don't even talk about the equities. This just is like straight up resolves the legal question.
Will (25:54):
Maybe they would've just said, "It's indisputably clear that, any time a statute allows one party to self-certify to a fact, it's unconstitutional." That would be big.
Dan (26:02):
Yeah. Yeah.
Will (26:04):
Yeah. Or maybe we're missing something. Maybe there's something...
Dan (26:07):
Maybe, but I don't know. I'm skeptical. Well, those are our updates. I don't know if I have a ton more to say about this, and I'm hesitant to say a lot more for fear of being preempted by a late Friday afternoon order.
Will (26:20):
Yeah. Let's not talk about any other people or things in the world, lest we curse them and something bad happen to them.
Dan (26:27):
Yeah.
Will (26:35):
Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring our endeavors. Please remember to rate and review us on the iTunes podcast store or wherever you find this podcast. Help us find our listeners.
Dan (26:47):
And no thanks to the Supreme Court, and to the gods of Supreme Court news for preempting our last episode.