Continuing our pattern of staying a week behind the Court's latest output, we discuss last week's opinions: CFPB v. Community Financial Services Association (the Appropriations Clause), Harrow v. Department of Defense (jurisdiction and equitable tolling); and Smith v. Spizzirri (arbitration), while also covering the shadow docket order in a Louisiana redistricting case. Before those, we touch on a bunch of topics including Justice Alito's flag display and the degree of existential risk posed by artificial intelligence.
Continuing our pattern of staying a week behind the Court's latest output, we discuss last week's opinions: CFPB v. Community Financial Services Association (the Appropriations Clause), Harrow v. Department of Defense (jurisdiction and equitable tolling); and Smith v. Spizzirri (arbitration), while also covering the shadow docket order in a Louisiana redistricting case. Before those, we touch on a bunch of topics including Justice Alito's flag display and the degree of existential risk posed by artificial intelligence.
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. Will, as so often happens, as I think is maybe our signature, we recorded the same day stuff happened at the court last week. Got some more opinions that we're going to talk about today. We're recording on Wednesday, May 22nd. So, this episode will probably come out Thursday, which is also a day when opinions are going to be coming out. So, we will continue to be behind the times. But that's not why people come here.
Will: When my dad first moved to Indiana in the 70s, he fancied himself a cultured person, so he wanted to subscribe to the New York Times, but he couldn't subscribe to the New York Times in rural Indiana. Except you could pay to have it mailed to you. [Dan chuckles] So, he would get like the New York Times like two to three days late, however long it takes to ship it from wherever they printed at its time. So, it's the paper of record two days behind.
Dan: It's so crazy to think how life was so much different when we didn't have easily accessible instantaneous transmission of data the way we do now. I mean, obviously there were telegrams and stuff back then, but that wasn't very efficient.
Will: Just think of what Supreme Court podcasts were like in the 70s.
Dan: Yeah. I guess you would get news articles from the wire services about what the court had done, but I imagine to get the actual opinions, you'd have to wait for, what, US Law Week? Is that where you would get the opinions if you were a law professor in Indiana?
Will: I think those would be the first. Unless you had somebody who likes-- I think you might be able to get someone to send you the slip opinions.
Dan: Yeah, but they'd have to go to the court to get it, right?
Will: Right. Yeah. I think many people would learn about opinions also in the law reviews.
Dan: [chuckles] Like, months and months later.
Will: Yeah. Like, reason case. Would tell you about a case that you didn't know about, [crosstalk] the excuse for a Harvard law student to write a 12-page essay.
Dan: Yeah. Well, maybe one of our slightly more experienced listeners, we've joked about average age of our listenership in the past, maybe they can write in and give us some more insight into that period of time.
A little bit of a complaint for you, Will. Last time we recorded, I was recording from home because I was dealing with some car issues. I have a pretty fancy mic and recorder. And yet, you didn't notice that, whatever reason, it wasn't working properly. And so, I sounded terrible.
Will: I kept telling you, you it didn't sound right.
Dan: You said that at the beginning, and then I adjusted, and you're like, “Oh, it sounds fine now.”
Will: I should have told [crosstalk] better.
Dan: And you were on the wrong mic, and I caught it, and I said, “Change your mic.” I think this is-- you did that on purpose to make me sound worse. And you don't need to do that to defeat my arguments. You can do so on the merits.
Will: A year or two ago, we recorded a whole episode where I was on the wrong mic. I say, timber-- [crosstalk]
Dan: Yeah. And since then, we've learned from those mistakes.
Will: Yeah, well, I'm just saying, now I've got revenge.
Dan: [chuckles] Don't let it happen again. If it happens again, I'm going have to take this up with the Director of the University of Chicago Con Law Institute, which funds our show.
Okay. Various odds and ends to talk about. One thing I just wanted to flag for people, which I thought was pretty interesting and I've looked at a little bit but haven't fully grappled with it, is oyez.org, which is the invaluable website that provides all sorts of background on historical Supreme Court cases, has the archive of all the oral argument transcripts and so forth. They have done something pretty interesting, which is that they have put together a bunch of materials like that for Brown v. Board of Education. But the thing that's interesting is that Brown, when it was argued and announced, it was like the year before the court started recording stuff. And so, we don't actually have recordings of the opinion announcement and the oral argument. And so, what oyez.org did is they used AI and actors to reconstruct kind of hypothetical recordings of the opinion announcement and excerpts from oral argument.
Will: I listened to this, and I do not like it, Dan.
Dan: Yeah. I don't have a strong view at the moment but tell me.
Will: The reconstruction is pretty cool. It sounds pretty convincing. You listen to it and you believe this is what the recording would sound like and we don't have any way of knowing. But they trained the AI, I think, on other recordings we do have of a lot of the people in question. But I don't like the sort of historical presentation within this kind of deepfake Supreme Court video. I think it--
Dan: Because you think people will not be able to tell reality from fake?
Will: Yeah. At best, they will be intellectually aware that it's not real, but will still kind of think, like-- I don't know, they'll still treat it the way they would treat a real recording in terms of locking into their memory of what it sounds like. And I worry about that, I guess-- [crosstalk]
Dan: Are you against historical reenactments? Are you against historical movies?
Will: I mean, I don't love them. They're fine. That Hamilton musical is pretty good. But the more-- this one is presented in a way that's of trying to get more of verisimilitude.
Dan: Yeah.
Will: In a way I don't like-- Now, I also, this is, I should say, I am a big Oyez fan. I got through law school listening to probably 20 years of Oyez audio recordings because they also archive all the audio, as you said. So, in general, they do amazing stuff for no profit. So, I don't want to nitpick too much, but it's not the style of Supreme Court history that I want to see more of.
Dan: It's not consistent with the best practices of originalism. Baude and Sachs originalism.
Will: Obviously, a fun AI history project is going to be to create a kind of like founders ChatGPT thing where you can just ask it questions about the Constitution and it'll respond as if it were a hypothetical member of the public, reasonable person in 1791. That'll be cool.
Dan: Are you working on that?
Will: No.
Dan: Maybe you should be. Maybe that's your big money-making idea.
Will: I'll think about it.
Dan: Okay. Related to this, one thing I've imagined someone will do eventually is create deepfake video of current Supreme Court cases based on the recordings of the audio. That would probably be something that, within a very short period of time, would be pretty easy to do.
Will: Yes, that's true. This is not in the same way, Dan. I hate it when news stories include photos of the person that are not about the story. Like, every story about Donald Trump doing something has a photo of Donald Trump, but it's never a photo of Donald Trump doing the thing in the story. Just like, “Oh, bring out the Trump angry photo for the story about Trump doing something bad.” “Bring out the Trump goofy photo for the story of Trump doing something goofy.” And I think that's actually a similar problem. But the deepfake-- fake cameras in the courtroom. Well, I guess the good news is it'll get rid of the political impetus to force the court to have cameras in the courtroom. But I'm against that too.
Dan: Yeah. It might make the Justices more willing to do that if it's going to be the real thing or the fake thing. You're into all this kind of rationalism and thought experiment stuff. Where are you on existential AI risk?
Will: Oh. I--
Dan: The fake Supreme Court opinion announcements and arguments are kind of the least of our problems there, I think.
Will: Sure. No, I think we often call this, what is your p(doom)? That's like, what is the probability you assigned the doom outcomes. I don't think it's that high, but I put it in the 1% order of magnitude.
Dan: It's not great.
Will: It's not great. I'm not as convinced as some of the people who work in this that there's any good solution. There are people who want the government to shut down all large computing clusters or California, I think, now has a new AI safety bill, and I'm more skeptical about whether any of those can really tackle the problems we'd worry about. But I'm certainly against hooking the AI up to the electrical grid.
Dan: Yeah. Giving it control.
Will: I might take efforts to move more of our electrical grids off the internet entirely if I were in charge.
Dan: But you're not.
Will: Nope.
Dan: And are unlikely to be.
Will: The Supreme Court might be safe because I think they still have their own computer system-- [crosstalk]
Dan: They’re air gapped.
Will: They're not on the internet.
Dan: No, they are. I mean, they have the internet-connected computer and they have the other computer.
Will: Right. But they have the other computer that's not on the internet. And I'm guessing-- [crosstalk]
Dan: I bet somewhere in like an IT office, there's a line between those two things. Someone could get in there.
Will: I don't know. We know the court does not update its IT infrastructure with great speed, so I just noticed they've not gotten around to that.
Dan: Well, once we find out, it'll be too late.
Will: Speaking of regulating the court, you see that today there's new legislation introduced in the Senate to try to impose some transparency on the court. The Shadow Docket Sunlight Act, proposed by--
Dan: This is cool. Yeah.
Will: [crosstalk]
Dan: What is this going to do?
Will: This is very interesting. It's a new bill that would add a new title to—so, it would create a new title USC 2285, that would say, “Whenever the Supreme Court in its appellate jurisdiction issues an order granting, denying or vacating injunctive relief, or granting, denying or vacating a stay of that relief, it has to publish a written explanation of why and give the votes of all the Justices.”
Dan: Do you think this would be constitutional?
Will: That's an interesting question. The bill is limited to the court's appellate jurisdiction, not the original jurisdiction, which ensures that it can fall under the explicit clause in Article III that the court's appellate jurisdiction is under such regulations as Congress may make, and this is a regulation. So, seems okay although I'm not sure that everybody in the court would agree.
Dan: Do you think it violates some kind of inherent separation of powers implicit in the idea of a court to-- tell the court that it has to say things? We could draw a distinction between a requirement that the court disclose the votes versus a requirement that they explain their reasons.
Will: Sure. So, two things. I think this came up in a case called Miller v. French about the Prison Litigation Reform Act, where there are some provisions about, if you're going to issue an injunction against a prison in certain contexts, you have to issue a written opinion within 180 days. And the court upheld it with a little bit of a question mark. Like, they could imagine situations where, as applied, that could be a problem, but in general, it's fine. I also don't know if it matters, but the bill is framed in the negative. Actually, it says, “The Supreme Court may not issue an order granting, denying or vacating relief unless they provide an explanation of reasons.”
Dan: So, what if they just don't decide to just sit on those orders-- those?
Will: Well, that's just it. Yeah, since the courts authority to do this comes from the All Writs Act and other statutes, I assume Congress can repeal or limit those statutory authorities. Like, right now, the court can issue all writs of necessary and appropriate native jurisdiction, and now they can issue them with the asterisk that if there are certain kinds of writs, they have to do a little dance first. But that's a real question. It also has a reporting permission. So, the federal judicial center is supposed to submit a report to Congress every 180 days on whether or not the court's complying with us.
Dan: That seems fine.
Will: That seems fine, although I'm sure will annoy everybody.
Dan: [chuckles] Well, who? It doesn't annoy me.
Will: Well, suppose the court doesn't comply, and then the director of the FJC has to [laughs] issue a report to Congress saying, like, “I know you passed this thing and they're not doing it.” It's a little awkward.
Dan: It's fine. I can live with that. Well, that's not going to become law.
Will: I assume it's not going to become law, but it's interesting.
Dan: Yeah. And you could imagine a universe-- We're not there right now, but you can imagine a universe where some of that stuff becomes a bipartisan issue because this isn't necessarily trying to change the substance of the court's decision making. It's just trying to make it a little bit more transparent. And it's not clearly only in Democrats interest for the court to be more transparent. I think it's probably in the court's interest, it might be in everybody's interest.
Will: Right. Well, Justice Kavanaugh did make this point recently, I think, in his Labrador v. Poe essay we talked about couple episodes ago that there is this downside of asking the court to give reasons on the emergency docket in that it can create lock-in. Like, if they have to express on the emergency docket their view of the merits, it may become practically harder for them to change their mind about the merits later. Now, the court doesn't say what the reasons have to be. So, the court could just get some pretty standard formulaic paragraphs that it uses or something.
Interestingly, the bill also specifies that there does not have to be a majority opinion. “The written explanation required under this paragraph may be made in one or more opinions representing a majority of Justices without regard to whether a majority of the Justices publish the same written explanation.”
Dan: So, it would require, if one person disagreed, they would have to write an opinion too?
Will: Yeah. So, the Labrador would work where you have, like, Kavanaugh, Barrett join one opinion, and Gorsuch, Alito and Thomas have a different explanation that satisfies the law or the bill. Or the bill, the bill to become a law.
Dan: Okay, what else? We talked last time a bit about the dearth of Fourth Amendment cases that Orin Kerr has noted in the past. And he chimed in after the episode and was going to say more about it. But on Twitter, he said he does think that Davis, the case that we talked about, is playing a role. That's the case that basically makes it very hard to create new Fourth Amendment precedent because in almost every case where the law changes in any meaningful way, the defendant won't be able to get suppression anyways because police officers are entitled to rely in good faith on existing precedent.
We had talked about sort of demand side arguments for why these cases might not be present but he suggests that there's a real supply side explanation too, that defendants are less inclined to reach those arguments. Courts also may be more inclined to decide arguments on good faith and not address the merits. And so, he says that there are fewer decisions in the lower courts that might be generating potential Fourth Amendment cases.
Will: Yeah, that's interesting.
Dan: Seems plausible.
Will: I was just wondering whether that's bad. If you went back and told the court in Davis, “Hey, a consequence of this is it's going to generate a lot less new Fourth Amendment cases for you in the future. Do you want to rethink this?”, whether they'd say, “Oh, no, that's fine. That's good.” It's a bonus side effect, or whether that would have given them pause?
Dan: I don't know. It seems like it's not necessarily fine if it skews one particular area of law. Maybe it's better to have fewer cases in general. I don't know. Is it really better to have fewer Fourth Amendment cases relative to arbitration cases? I have no idea.
Will: Right. I think at the time this argument happened, I remember I cheekishly started to write an essay called, “No new law.” Just like, what if we never got any new law? What if law never developed? Would that really be so bad?
Dan: Isn't that what you want generally? Isn't that originalism?
Will: [laughs] Let's see. No, originalism is a theory of legal change, Dan.
Dan: But it's like theory is that you can't.
Will: No, you can.
Dan: It's just really hard.
Will: You just have to follow the rules.
[chuckles]
Dan: Even when they make it really hard.
Will: Sometimes, they make it easy.
Dan: Actually, perversely, it's a theory that requires a lot of legal change because it would require-- you want to overturn centuries of precedent all the time.
Will: Sometimes.
Dan: All the time. Every day.
Will: Every day.
Dan: Many days. Okay, let's keep marching. Latest kind of Supreme Court ethics-y scandal.
Will: Dear God.
Dan: [crosstalk] -ish. I'm getting kind of tired of talking about these because I sort of talk about them. I'm like, “Yeah, this is not great.” And you're like, “This is totally fine. Nothing to see here.” I feel like that's going to happen again right now, but let's do it.
It was reported in the New York Times that on January 21st, 2021, the Alito family at the Alito home had an upside down American flag. Apparently, this is allegedly a symbol of the Stop the Steal movement. So basically, the claim is that this is an indication of support for attempts to subvert the 2020 election, which I had never heard. I didn't know that. Did you know that?
Will: I did not know that. I studied the Stop the Steal movement pretty closely.
Dan: Related to your Section 3 work?
Will: Yes.
Dan: Okay. I didn't know that. A lot of interesting things here. First of all, neighbors took a picture. I don't totally know why we're not learning about this for more than three years. What is it about May 2024 that made this come up?
Will: Yeah. I should put my cards on the table and say I was surprised to find this story actually made me angry. I almost wrote a-- [crosstalk]
Dan: You never get angry.
Will: -relatively hot under-the-collar blog post about it over the weekend when it was out.
Dan: Why didn't you? That would have been delightful.
Will: You know, I decided to read a fantasy novel instead, and then the story seemed to pass. So, two hypotheses about why now. One is just, for whatever reason, the neighbors only talked to Jodi Kantor recently. So, just another-- [crosstalk] Another possibility is they've spent a while trying to find something more and couldn't find it. Like, if this started you on an investigation of Alito and Stop the Steal, and in the end, it's all you had.
Dan: Yeah.
Will: You might eventually run it, but you might-- [crosstalk]
Dan: I presume that wouldn't have taken three years.
Will: I don't know. It could have taken a while. It depends on what they were looking for and who they were talking to. Alito clerks probably aren't going to talk, but you talk to their ex-girlfriends or who knows?
Dan: [chuckles]
Will: Who knows what you do? Then, the other is this being timed because now the Trump case is pending, so now it's potentially there to influence the-- to force Justice Alito to recuse from the case because I think this story comes out last week. And then, within a day or two, there are several more surrounding stories in the New York Times. Jesse Wegman on the editorial board writes an op-ed, why this is terrible, and maybe the Justices should be impeached. There's a subsequent story about how now there are lots of questions about the ethics.
Dan: Yeah, but any story like this would generate stuff like that.
Will: Yeah. But part of the hook might be, “Should Alito recuse?”
Dan: Yeah.
Will: One thing about it is it's three and a half years ago, which I do think is important. I think a lot of us did or said things in early 2021 that we might want to have back.
Dan: I feel good about stuff I said in 2021.
Will: Yeah, you're very even keeled.
Dan: Well, I'd just say it's not worse than anything I say now.
Will: [laughs] Fair enough. Then, of course, it's the fact that so far as we know, now, I guess we just have Justice Alito's word for it, but nobody's contradicted it, it was Martha Ann who put up the flag.
Dan: His wife?
Will: His wife. So, it's not obvious what to do with that. Now you could say, well, even if he can't force her to take it down, he should now have to recuse because there's a consequence to her speech. But again, you need the pending case for that to be a kind of relevant hook. So, it could be it's coming out now because we've got more Trump cases now. But when you put these three things together, that it's three and a half years ago, it's not Justice Alito, and the evidence this has anything to do with stopping the steal is exceedingly thin. It's a really weird story.
Dan: Yeah. There's criticism in National Review that's been published. One argument is that this was not clearly understood to be a Stop the Steal symbol at the time. I don't have a great way to evaluate that. There seems to be, this was not widely reported in the media, but I wasn't in the deep Stop the Steal information ecosystem at the time. The explanation that Justice Alito gave to Fox News, I think, was, I thought, somewhat unsatisfactory. Basically, the explanation was there was a liberal neighbor who was being rude to them, and so this was a response.
It's not totally clear why this was-- what would make this response like a kind of-- It sort of suggests that this symbol somehow means “own the libs,” but not totally clear from that story why. It does seem implicit in the story that this is a political symbol and that it's a political symbol that is directed at liberals. So, I don't know if that's totally exculpatory.
I do also think that Supreme Court Justices do have some obligation to prevent things that happen at their home that create the appearance of bias. I don't think it's a full defense to say, “Yes, at our house, we have 20 political signs, but my wife puts them up, and not me.” I think that maybe you have some obligation to say, “Look, I live here too. Because of my job, we just can't do that.”
Will: Yeah, bracket that for a second. I think the flag is clearly some kind of sign of distress and some kind of sign of what is happening now is bad for the country. And so, I think it's true that flying the flag upside down right before Biden is inaugurated has some political content. I think that's true. Now, this block sounds like it's pretty intense, that would make a good TV show. I would not be surprised because my hypothesis would be that Mrs. Alito’s first inclination after seeing a sign apparently directly blaming her for the January 6th attacks was going to be to fire back with something more explicit, that probably would have been even more appropriate. And that maybe flying the flag upside down was a way of expressing distress and anger, but without taking any specific political message. So, better than it could be, but not as good as doing nothing. It'd better if it's not to have happened.
Dan: Well, I'm glad you're willing to concede that.
Will: Yeah. Well, you remember how Justice Alito got caught on camera saying, “That's not true,” during the State of the Union when Barack Obama said something about Citizens United that was not true. This is how I feel about this. That was not good. And then, it's embarrassing that was caught on camera. And I guess I feel suppose that it hadn't been caught on live camera, somebody had caught it on video, and three and a half years later we suddenly got a video of Justice Alito saying, “That's not true,” during the State of the Union, I get why some newspaper would run it, sort of, but it seems like a ridiculous story. And the attempt to blow it into something, I think, will delegitimize the press, not influence the court, and generally make things worse.
Dan: I can see why people might be less interested in it. I do think that if a Justice is doing something political, the fact that it's the Justice currently sitting on the court and that they did it still makes it something that the public might be interested in knowing and maybe should know. I guess I don't think that there's a hard statute of limitations on stuff like this.
Will: There may not be a hard statute of limitations, but I do think that the newsworthiness declines over time, especially if it seems like it's not a continuing thing. If the flag were still upside down, I agree it would also be a more interesting story.
Dan: But isn't it obviously newsworthy given that this got a lot of attention?
Will: That's the thing. If newsworthiness is descriptive, then yes. Although I also think it was reported in a misleading way, would the story have gotten as much attention if they had not misleadingly tried to imply that there was more evidence of the Stop the Steal thing. Like, the Supreme Court headline is, “At Justice Alito's house, a ‘Stop the Steal’ symbol on display,” with Stop the Steal in quotes. So, I will say I first saw this headline and I was like, “Holy crap, they have a Stop the Steal sign in their yard.” [chuckles]
Dan: Would you go so far as to say that would be bad and troubling?
Will: Very bad.
Dan: Okay. So, for you, just to be clear, whether this is very bad or not turns entirely on the meaning of that symbol?
Will: Not entirely, but that is one of the crucial factors.
Dan: Basically, because this is ambiguous, it's okay, but if it were not ambiguous, this would be very bad?
Will: No, it's not even okay. Again, I think if somebody had asked me, should they turn the flag over, I would say, “Yes, this is not great.” but the story is so much worse than the conduct. But what do you think about the spouse--? [crosstalk]
Dan: I think the right-wing media would report if Sotomayor had an anti-Trump flag or something that could plausibly be interpreted as anti-Trump flag at her house. National Review and Fox News would clearly report that. I don't know. I don't think that you should attack the outlets for running the story because obviously they're trying to get clicks. People are interested in it, they're going to run the story.
Will: Well, there's both the question of running it and the question of how you run it. Look, I agree with you about the right-wing media. As far as I can tell, the right-wing media is still obsessed with Justice Ginsburg, even though she's dead. [Dan chuckles] But no end of stories about how well she said this about Trump. So, I agree about that.
Dan: Which she shouldn't have.
Will: Which she shouldn't have.
Dan: Which I said at the time immediately. I will say--
Will: And I'm sure that she did other things she shouldn't have done that we didn't learn about the time, and we'll learn about one day. And I'm not against learning about them one day, but I think it's both the framing of the story and, again, I think, misleading description of the behavior and then the kind of surrounding campaign of stories in the Times, which are obviously preloaded and like--
Dan: Although the editorial page and the news division are separate. I don't think that you should accuse them of running some kind of coordinated smear.
Will: They're separate. It's possible that Jesse Wegman learned about the story that morning when he clicked on the Times too. Anyway, I think it makes the media look both biased and wrong.
Dan: Yeah. I think this is potentially newsworthy. I think it's interesting. Maybe I did think that the meaning of it seems to be ambiguous, but it is not.
Will: I will say [unintelligible [00:27:38] I'm also influenced by-- I had lunch with some colleagues the day after the story ran, and many of them had seen the story, but did not know from their quick read of the story that it happened three and a half years ago, or that it was not universally established that this was a Stop the Steal symbol.
Dan: They must not have read very carefully, because I thought it was pretty clear when the timing was.
Will: Yes, if you read it carefully.
Dan: I don’t think you have to read it very carefully.
Will: I think some of them just assumed from the fact that the story was coming out now that there must be something that had happened [chuckles] that made it come out now, which is, again, the newsworthiness assumption.
Dan: Okay, it's clear from the second paragraph of the story when this happened. You gave us about as much as we could have reasonably expected from you on this.
Will: I do think there's this bigger issue that I don't think we have a good reckoning with, which is what to do about spouses and what to do-- I think, as it stands, all the Justice spouses, even Ginni Thomas, in some way modify their behavior because of their spouse's judgeship. But I don't know if we have a good answer to what should happen if a spouse says, “No, I'm not going to do that.”
Dan: I think it's a real problem. I think that if a spouse was like, “I'm going to refuse to stop being a consultant for Supreme Court litigation,” that might be troubling.
Will: Yeah. Well, Supreme Court cases are at least easier there to see how you recuse. But, I don't know, just imagine a spouse is like, “I'm going to run for Congress.”
Dan: Yeah.
Will: “And I'm going to run, you know, as a member of a party, and I'm going to say a lot of the standard partisan things.”
Dan: Yeah, I think it's troubling, I think that maybe--
Will: I think our norms are not well equipped to handle that. And we have the kind of the strong feminism norm to think, “Well, surely everybody's autonomous, and it's unfair to ask one person to control the other,” and so on. But we also have a strong concern about the optics.
Dan: Yeah. It also just raises this concern that people have flagged about, to the extent stuff like this is going on, the Ginni Thomas stuff, what does this say about the information ecosystem given the Justice occupies? If the Justice’s spouse is kind of clearly a conspiracy theorist, whatever, what have you, what does that say about the Justice’s judgment? And I find those things concerning.
[chuckles] Another thing related to that right around the same time people got worked up about, is, I guess, Justice Alito, who's one of the only Justices who still owns a bunch of individual stocks, which I think is indefensible. I think that he should sell them. There's a federal law that I think, as I understand it, would allow him to avoid capital gains tax. He could just sell them by index funds, he doesn't do that. Sold, or whoever manages his finances sold some Budweiser stock after the Dylan Mulvaney thing blew up and everyone was boycotting Budweiser for being too woke. Some people looked at this and they made that claim that Justice Alito is deep into the kind of like right wing, “own the libs” stuff. I have no idea whether that's true.
Really, my takeaway from it is just, again, he shouldn't own individual stocks because it creates these stories, and there's been a bunch of cases. There's been cases where he and other Justices accidentally vote on cert positions where they own some stock. It's just there's no reason to let that happen.
Will: Totally with you on that. I think the statute may only apply if you sell them when you're appointed. So, if you miss the boat--
Dan: I thought it was just to avoid a recusal.
Will: Okay-- Oh, yeah, no, that's right.
Dan: So, at least anytime something came up, you could put them in a blind trust. If you can't sell the stocks, it just creates-- again--
Will: I think the Supreme Court Justices ought to be forbidden from owning individual stocks.
Dan: Yes.
Will: And I also think on the information ecosystem point, I just worry about anybody who doesn’t know that you should be in index funds, your ability to make decisions that affect the markets.
Dan: Yeah. I ended up with some individual stocks for various reasons. And if I had a way to sell them and avoid all capital gains, I would.
Will: You can donate them.
Dan: [chuckles] I don’t want to donate them. I want to keep my money.
Will: But whenever you engage in charitable giving, which I assume you do at some point, you can use your stocks rather than your cash.
Dan: Is this part of your attempt to get me to fund the University of Chicago Constitutional Law Center?
Will: There are many possible worthy causes you can give them to. [laughs] We'd be glad to send you prospectus about our activities.
Dan: Do you have like a giving prospectus?
Will: Like an Annual Report for prospective donors. You're in it a lot.
Dan: Are you endowed yet?
Will: No.
Dan: Shouldn't you be? Isn't there just no shortage of cash floating around for right-wing organizations and right-wing attempts to shape the legal information ecosystem?
Will: The Constitutional Law Institute is not a right-wing organization. It's a nonpolitical organization dedicated to the long term-- [crosstalk]
Dan: Yeah, certainly but, for example, there was lots of, I'd say, politically motivated giving to support law and economics, which is not itself a right-wing endeavor, but people with certain political ideologies may think it furthers their interests. And so, I think if you're the kind of person who's funding FedSoc and funding Leonard Leo, you might also think it's good to give some money to help highly credentialed originalists to buttress their efforts.
Will: That would be great. If anybody fits that description is listening to the episode, send me an email.
Dan: I think they probably are. It seems like 80% of our listeners are right wingers.
Will: I don't think so.
Dan: The prominent ones always seem to be.
Will: I think it's the people who are willing to say on Twitter they listen-- [crosstalk]
Dan: Yes, that's fair.
Will: Because people are less embarrassed to admit they listen to you than they are to admit they listen to me.
Dan: Fair enough. Okay. Well, if anybody is a closet lib listener, you can tell me, and your secret is safe with me. That's about all that we can say about that. The kind of partisan-ish point I will just make is that if the liberal Justices were doing had done half the stuff of these stories that keep coming out, and there have been some things like Justice Ginsburg's comments about Trump were wildly inappropriate. But if this stuff was happening, this kind of trickle stories, the right-wing media would be going insane over it, and possibly rightly so. So, I do get a little bit tired of this.
On the one hand, you know, there's this huge outrage machine on the left, but on the other hand-- These things are not good. It is not great to have for Justices to be making what strike me as a bunch of unforced errors. Owning individual stocks, creating concerns about when they're sold, being super closely adjacent to very serious partisan activity, taking things that are gifts from wealthy people who might have interests about what the court is doing, all sorts of things like that. Could we just not do it?
I just would like to have a judiciary that thinks that wherever the line is, we don't need to argue about the exact boundaries of the ethical line, we just stay away from the line. I think that would be better.
Will: I agree that would be better. I continue to think there are stories we haven't even heard yet about some of the Justices.
Dan: That's true. But let's hear them and let's criticize them for not doing it. National Review, Ed Whelan, go find those stories. Let's bring it out. If Justice Sotomayor is deeply tied up with, I don't know, what's the equivalent of Stop the Steal on the left?
Will: I don't want to get canceled.
Dan: In your view, mainstream democratic politics. Okay. Whatever. Let's surface it. And then, maybe we can all stop doing this stuff.
Will: Yeah, no, and it'll all be different. And we did talk about some of the Justice Sotomayor book things. And I think some new Justices have some book deals that may raise some pretty shady questions. But yeah.
Dan: I think that is all of the kind of odds and ends, and we should maybe talk about some of the actual work of the court.
Will: That'd be great.
Dan: Okay. First one, shadow docket thing in a redistricting case, Robinson v. Callais, Calleese? You tell me.
Will: I’m going to go with Callay.
Dan: This is a case coming from Louisiana, and there's a lot of French folks down there, so maybe that's what's going on.
Will: Phillip Callais. Philip's a kind of Francophile name.
Dan: Yeah, I guess that's not my intuition, because I would think more Philippe with an E. And I'm just going to say I don't totally understand what's going on in this case. The election law stuff, I don't follow as closely as some. Sounds like you know a little bit more about what's going on here. So, you're going to do this one.
Will: All right. This is an appeal or a request for a stay related to Louisiana's latest round of redistricting litigation that's sort of happening in the shadow of Allen v. Milligan, the Voting Rights Act case, sort of an unexpected win for the Voting Rights Act that we talked about, I guess, last year. But the long and short of it is that Louisiana is now being forced to draw a second majority-minority district, a district where it's likely that the people of color will have the voting power. And Louisiana appealed to the Supreme Court to have this stopped. The Supreme Court granted the stay, which effectively pauses a Fifth Circuit ruling.
The long and short of it, that's interesting, the two things that are interesting about it, are one is the court is relying heavily on what is now called the Purcell principle, a shadow docket doctrine that’s sort of developed out of a pure curium case from the Supreme Court in 2006, which says that presumptively federal courts should not order a lot of changes too close to an election with a kind of broad and amorphous definition of what happened, what counts as too close to an election.
Dan: We're like six months, a little bit less than six months out. I guess that counts?
Will: It's an interesting principle to think about how that in general operates and reduces the possibility of federal court intervention on election law issues. The other is that it's a 6-3 decision. Justice Sotomayor and Justice Kagan would have denied the applications for stay. Justice Jackson actually writes a dissent, and everybody is on the opposite side from what a naïve realist would think. That is the six conservative Justices--
Dan: This helps Democrats, right? This is going to potentially give Democrats another representative in the House?
Will: Yeah. At least, it helps minority representation. There is always a little bit of a debate about whether the interests of Democrats, the interests of black voters in the Democratic Party are always aligned, but let's just say it helps Democrats. So, everybody's on the wrong side for partisan purposes, which is interesting. That's something that's just worth highlighting, since the usual assumption is that it's otherwise.
Dan: The reason we think that is the case is the Democrats don't like Purcell, they think it's stupid.
Will: Yeah, I think so. Or I think they're worried-- I think, in general, they worry about the Purcell principle. Maybe they think it's a good principle, but it's gotten too broad. As the definition of “too close to an election” becomes sufficiently large, it can effectively stop almost all anticipatory election litigation because you only have a couple of years if the challenge is ripe. And then, if it becomes too late, before it becomes soon enough, it can really just decrease election law litigation. And so, if, in general, the conservative Justices are okay with icing a lot of election litigation and the liberal Justices worry about that, then you might see this alignment.
Dan: So, what do you think? Is there kind of deeper, multidimensional chess explanation, a naïve realism explanation of what's going on here? Or is this just driven by pure principle among all involved?
Will: My guess is it's driven by pure principle, or it's driven by-- if you want to be less naïve about, it's driven by the sort of positions they find themselves consistently taking in voting rights cases, even if any individual voting rights case is different. In the same way that when the court fought about partisan gerrymandering and the conservatives tend to be okay with letting legislatures do it and the Democrats tend to not to be, and maybe there's a partisan angle to that. But still, they got some cases where it was the Democrats who were doing the partisan gerrymander, and everybody still stayed on their sides. The Democrats didn't suddenly become okay just because it’s the Democrats doing it. So, I do see it as, I guess, being controlled by political principles.
Dan: Okay. You said there were two interesting things.
Will: The two are just the Purcell principle and the lineup.
Dan: Oh, okay. I thought there was another one. Well, congrats to Democratic voters, I guess, on that one. No thanks to those traitor Democratic-appointed Justices.
Will: [laughs] We’ve also got some actual majority opinions.
Dan: Yes. A couple that are super short. I feel like, are we seeing a lot of really short opinions? Like, really short?
Will: I think we saw very few opinions at all.
Dan: Yeah.
Will: Normally, some of these super short opinions would have come up by now.
Dan: Yeah. But these seem like super short. We have a six-pager from Justice Sotomayor. She doesn't write a lot of six-page opinions.
Will: I do think that the short opinions have gotten shorter, as they apparently have too much to do with their 40 cases a year.
Dan: Well, but it can actually take more time to write a short opinion, as they sometimes say, or some editing.
Will: [laughs] That's true.
Dan: Okay, well, let's see if we get to those short opinions. Can we talk about the longer opinion? Although I would say, for a big case, this one is actually not as long as it could be for a big case involving constitutional law and history by Justice Thomas. This one is only 22 pages.
Will: It's not Bruen length.
Dan: No. Thank goodness. This case is one we've been waiting for. Consumer Financial Protection Bureau v. Community Financial Services Association of America.
Will: CFPB v. CFAA.
Dan: Yes, if you're going to abbreviate. This is a case about the appropriations clause, which says, “No money shall be drawn from the treasury but in consequence of appropriations made by law.” And that's a revision in Article I of the Constitution. So, it is a limitation on Congress's power, but, I guess, also a limitation on the federal government more generally. And why did this come up? You want to explain the structure of the CFPB that posed this problem?
Will: Sure. Well, the core of it is that when Congress created the CFPB, it wanted to give it a certain amount of independence. And so, they did two things, one of which the court’s already heard a case about, which was to give the director of the CFPB some protection from removal by the president.
Dan: And a fixed term.
Will: And a fixed term, which the court held unconstitutional in Seila Law v. CFPB, one of its many unitary executive type cases. But the other thing they did was to try to give the CFPB some independence from the appropriations process by authorizing them by statute to collect money from the Federal Reserve, basically. And the statute has a cap on how much they can request the money and what they can do with the money they roll over. But the basic idea means that most of the time, the CFPB doesn't need to go to Congress and get an annual budget from year to year. It doesn't have to sit through oversight hearings about how much money it wants because they've got a line of credit.
Dan: Which is different from what most agencies have to do.
Will: Yeah, this is very unusual. Exactly how unusual it is and how to compare various other kinds of self-funding or financial agencies is the source of much dispute in the case. So, we can talk about that matter, but it's an unusual structure. And in a way, it's a structure that should trigger your separation of power's radar a little bit. Novel constitutional structure designed to insulate this agency from the normal democratic process could be okay, but that's the kind of thing that's often not okay, because it might be seen as an end run around the very lines of accountability set up in the Constitution.
Dan: Okay. Maybe just put on the table what the potential problems with this might be before we get to how the court is going to resolve it. So, one potential problem is that Congress isn't specifically saying, “Here's the amount of money we're going to give you.”
Will: Yeah.
Dan: So, Congress isn't saying, “You get this much money a year,” it's providing this other source with just a top-end cap rather than a set amount. Is that part of the problem?
Will: Well, I'm not sure. That's part of the problem. Another problem is that this is not going through what we call the appropriations process. The appropriations process is like that fight Congress has every year about the budget and how much money to appropriate, and the CFPB doesn't do that. And the Constitution does say something about how you have to have appropriations. So, just on its face, you might think there's some process problem in a way with doing this outside of the normal lawmaking process.
Dan: But what is that normal process presupposed by the Constitution? I agree that there is a process that Congress has come up with to deal with appropriations, but the Constitution doesn't specify any set of internal congressional procedures, right?
Will: Well, sure. And I was just trying to put the arguments on the table before we evaluate them.
Dan: Okay. But I guess I don't even fully understand that argument.
Will: No. This argument is both not going through the ordinary appropriations procedures, but it's not going through any procedures at all. Most agencies have to, every year, get permission to spend money, and that's the chance for Congress to give them some guidance on what they spend money on and how much they spend. And the statute has effectively flipped the default for the CFPB. Like, nobody bothers them. It's like the difference between being on an allowance from your parents versus just having a trust fund that you can draw from without any kind of preauthorization. And as a formal matter, that could depend on what the words “appropriations” means. And then, as a sort of practical or structural matter, it depends on how do we think this clause is supposed to bind Congress, if at all.
Dan: Okay. And then, the other problem, maybe related or maybe not related, is length of time.
Will: You mean the sort of open-ended nature of it?
Dan: Yeah.
Will: Yes, exactly. Relatedly is that in the normal appropriations process, that means that every year you have to go back. And so, every year Congress gets to revisit what to do. One, Congress's decision to give money doesn't bind Congress the next year. And sort of for the same reason, this also affects the time span of Congress's decisions.
Dan: Yeah. Although just at the outset, before we get deep in the arguments, it has to be the case that there's no constitutional requirement that Congress appropriate the money annually.
Will: Look, I think all these arguments fail.
Dan: Okay. But, textually, the Constitution puts a limit on the amount of time for which Congress can appropriate money for the armies, two years. And so, that limit isn't present in other places. So clearly, there is not a background rule that all appropriations have to be annual.
Will: Yeah.
Dan: Okay. Those seem to be the major arguments, although we'll get to the dissent in this case, which puts on the table various potential issues. But let's talk about the majority by Justice Thomas, actually, who is going to reject the position taken by the Fifth Circuit, reject the position by the people that are trying to take down the CFPB and is going to say that this is fine. Were you surprised that Justice Thomas wrote this?
Will: No.
Dan: Okay. Did you see this one coming?
Will: I certainly thought the outcome was obvious, and I thought it was going to be a lopsided lineup. And I do think it makes sense as a Justice Thomas case in that I both think the originalist evidence is pretty strong and the court has a kind of formalist rule. So, that is a kind of intuitive way to resolve the case. So, Justice Thomas says, his baseline solution all these problems, page five says, “Under the appropriations clause, an appropriation is simply a law that authorizes expenditures from a specified source of public money for a designated purpose. The statute that provides the bureau's funding meets these requirements. Therefore, it does not violate the appropriations clause.” So, Article I, Section 9 says you have to have an appropriation made by law. There's a statute that says the CFPB has up to this much money from the Federal Reserve to support its various activities. That's it. That's an appropriation. It's not the normal appropriations process, but it's an appropriation textually.
Dan: Yeah. Does there seem to be any nondelegation limit? Because obviously that statement of purpose is very broad and does not seem very capped, right?
Will: Yeah. I do think that the one thing that became clear during the case, I thought, is that the better way to frame this challenge in some ways would have been as a nondelegation challenge, or at least that the better way to phrase the challenge is not to isolate the appropriations clause for the nondelegation doctrine. If you think there's some independent doctrine like the nondelegation doctrine, that requires all laws to be somewhat specific, then maybe that puts a kind of cap on how the appropriations clause can work. But I'm not sure it was framed that way. Under the current non-delegation doctrine, I take it this would satisfy it, it has a range of--
Dan: Intelligible principle.
Will: Yeah. And has a range of statutory activities. They're not supposed to just spend the money on the Constitutional Law Institute or something totally outside their zone. And even there's an interesting footnote about whether the original nondelegation doctrine really applied to spending. The strongest case for it are regulatory statutes or statutes that affected behavior when it came to governing the kind of government's assets. There's, I think, a much stronger case that was a different set of principles where there was more discretion—seems to have dropped out.
There is this other textual sprinkle that the court has to deal with first, which is the part of the clause about the treasury which we skipped over. Maybe we should just mention for a second. The appropriations clause says, “No money shall be drawn from the treasury but in consequence of appropriations made by law.”
Dan: Yeah. I was curious about this.
Will: Yeah. If you wanted to get even more formalist on behalf of the CFPB, you might say, “Well, look, their money is not coming from the treasury.” That appropriations process is how Congress spends money from the treasury, but this money is coming from the operating account of the Federal Reserve, which is different. And so, you could take the position that the clause doesn't apply at all. In the same way you might take that position about, suppose there's an agency that just takes in money, the SEC collects fines, or the national parks collect a bunch of money from tourists. You might take the position that as long as the money is just in the cash register, it's not governed by the appropriations clause at all. And they could just do all sorts of stuff with it because it hasn't entered the treasury. The court rejects that view. The court says treasury is a--
Dan: Yeah, it seems to be basically all public money. Like, the instant money passes to any government official, it becomes money in the treasury. Is that basically--?
Will: Assuming the government official is a bailee, like they're holding the money on behalf of the government. If they're holding it on their own, that'd be different.
Dan: Right. Is there a way you could draw a statute that would--?
Will: No, I just mean if the cops rob you and take your money, I don’t think the money is automatically in the treasury just because the police officers hold it or the FBI holds it or something. It's not literally as soon as a government official holds it. But yes, once some agency of the government has taken the money on behalf of the government, the treasury is like a metaphysical concept, not a building in DC with a vault.
Dan: Does that mean that the dues that Supreme Court bar members pay to the court, those are now part of the treasury, and so the court needs an appropriation to be able to know what to do with those?
Will: I think so.
Dan: Okay. Because I thought at some point there was some question about what the court should be doing with that money. And maybe this is getting ahead of things, but one thing that the Justice Alito's dissent, which we'll talk about more in a minute, does note is that the statute creating the CFPB has a provision that says, “Funds obtained by or transferred to the CFPB shall not be construed to be government funds or appropriated monies.” Is the majority opinion making that statute unconstitutional?
Will: I'm not sure. I don't think so, because I think that's for statutory purposes. This is more like the Anti-Injunction Act problem, where appropriations means one thing in the Constitutional sense and something different in the statutory sense because there is a bunch of law governing the budget that I think uses appropriations in different and narrower sense. But I'm not positive I understand that.
Dan: Okay. That makes sense. Back to the majority. Justice Thomas gives us this definition, source and purpose, and then says, this is basically-- as I read the opinion, it sort of says, “This is what the text of the Constitution says. And then here's a bunch of other stuff that confirms that that's right.” And the other stuff is English legal history and colonial history and early American practice, but not later American practice.
And so, there's this whole thing about the battle between parliament and the kings of England crown over various periods about going back and forth about who had the power of the purse. Pretty interesting. But the bottom line that Justice Thomas sees is to confirm this understanding that gives Congress a lot of flexibility here.
Will: Yeah. And I think it provides important context just in that you might think, well, it's weird, there's this appropriations clause in Article I, and then the court is saying it doesn't actually limit Congress very much. I guess maybe it limits Congress in that Congress does have to specify a source or a purpose. And so, the context helps you see that the appropriations clause is partly there because it's responding to these separation of powers concerns and questions about what the executive could do.
Dan: It presumably means that the executive branch couldn't just say, “We're inventing a new fee and we're going to use the revenue from that fee to support activities that Congress hasn't told us to do”?
Will: Yes. More, I think centrally and also somewhat controversially, I think it means that the president cannot force us to spend money through a treaty. Like, the president can sign a treaty agreeing to give money to somebody, and the treaty is the supreme law of the land. But even if the treaty is self-executing, the money can't get spent until Congress makes that appropriation. This actually came up early at the founding about the Jay Treaty because that obligated us to spend money, and the House wasn't sure whether they wanted to do it, but they felt kind of boxed in because now there's a treaty saying they had to do it. But however the House reacts, it becomes very clear that even authorized things can't spend the money. Also, the courts. So, the courts can't give you money from the government without an appropriation.
Dan: Yeah. And that's why there's this whole complicated thing in DOJ about the Judgment Fund.
Will: Right. That's an appropriation designed to allow courts to award sums of money up to a certain amount. Without the appropriations clause, you might have otherwise thought, “Oh, here's a judgment that says the government owes me $100,000. I can just walk that into the treasury and demand the money.” But no.
Dan: Okay, so pretty straightforward majority opinion. Do you have more to say about it, or should we go on to the other--?
Will: Let's bring in the other opinions.
Dan: Okay. Second opinion is a concurrence by Justice Kagan, but it's joined by Justice Sotomayor, Justice Kavanaugh, and Justice Barrett. This is a four-Justice concurrence. And the point of Justice Kagan's concurrence is to basically to fill in a gap in the majority opinion, sort of say everything in the majority is right, but also there's a bunch of kind of post-founding era history. 19th century practice, 20th century practice, which is also fully consistent with this. So, there's like an unbroken line of history. And I guess implicitly it's a little bit of a criticism of Justice Thomas. His brand of originalism maybe treats that kind of later history as irrelevant because it doesn't necessarily bear on the original meaning of the Constitution the way that the early congresses actions do, because some of them were involved in drafting the Constitution and drafting the Bill of Rights and things like that. And they're operating in the same historical context. And so, that's evidence of what people would have understood the Constitution to mean. But stuff in the early 20th century is not such evidence.
And she says she seems to think this is relevant, helpful. And makes it ever more obvious that the CFPB's funding accords with the Constitution. She concludes by saying the way our government has actually worked over our entire experience thus provides another reason to uphold Congress's decision about how to fund the CFPB. So certainly, the kind of opinion that seems totally expected, consistent for Justice Kagan, Justice Sotomayor, who are going to be more-- as compared to Justice Thomas, at least more comfortable with looking to more modern historical developments, a little bit more flexibility, a little bit more evolutionary. What do you make of the fact that it's also joined by Justices Kavanaugh and Barrett?
Will: Well, one of the things Justice Kagan cites on page 2 is federalist number 37, she also cites, she doesn't quote it, but she's referring to the passage in which James Madison refers to liquidation of unclear provisions of the Constitution.
Dan: This is a topic that's very near and dear to you.
Will: Uh-huh. I'm actually going to be talking and writing about it more this summer.
Dan: Liquidation, the sequel?
Will: I hope so. I think Justice Kavanaugh has expressly expressed the view that he's a believer in liquidation. I think Justice Barrett has written about this as well. So, I think they're signaling that, I don't know, the concurrence of being committing to one view exactly of how to use post founding practice. But I take it they're joining because they see it as an important thing that's consistent-- [crosstalk]
Dan: And it's more relevant to constitutional interpretation than perhaps Justice Thomas does.
Will: Yes.
Dan: Who doesn't criticize what they're doing here.
Will: Right. But I think they have more firmly established it to be relevant. Liquidation also interacts with stare decisis. In a way, liquidation is a form of precedent, non-judicial precedent. So, maybe unsurprising that Justice Thomas, who has the weakest view of stare decisis in the court, is going to give the least weight to liquidation. And Justice Kavanaugh and Justice Barrett, who have given more weight to stare decisis, would also give more weight to liquidation. The whole thing is phrased in a sufficiently broad way that they can all join it comfortably.
A couple things I noticed about this, and I'm curious if you think they're significant. One is, Justice Kagan refers to, “long settled and established practice may have great weight interpreting Constitutional provisions about the operation of government,” that is like structural provisions. Do you think that suggests she's not taking a position about whether it has the same weight in, say, interpreting individual rights? Do you think that's on purpose?
Dan: Given what a careful writer she is, I kind of assume everything she writes, or at least most things she writes, are on purpose, and I could certainly see someone making a plausible distinction there.
Will: Right. And I think in Justice Barrett's concurrence in Bruen, I think she flagged that question, whether liquidation applies in the same way to individual rights that it does to structural provisions. It's an interesting question. McCulloch, which refers to some liquidation arguments, and upholding the bank of the United States, has this passage where it says it might be different if it were a case about the liberties in the Constitution. So, there are some very interesting sort of methodological questions there.
I also noticed that the whole thing is framed as, “This history provides another reason to uphold the CFPB.” That is like liquidation is a good pro government argument. The fact that something has been done this way for a long time is a reason the government can win. Do you think that kind of suggests it could be asymmetrical, that the fact something hasn't been done this way for a long time is not a good reason to strike something down?
Dan: Hmm.
Will: I don't know. There are these points criticizing the court sometimes about invoking the anti-novelty principle. Like, just because something's never happened before can never happen anymore. And I wonder if it was written in a way to avoid expressing a view about that.
Dan: That's interesting. I mean, it certainly would see Justice Kagan as being less receptive to those kinds of novelty arguments, right?
Will: Right. And then, you could see these four Justices, you could think what they have in common anyway, is when we're talking about practice reaching back to the founding, consistent with what happened at the founding, on a structural question that will result in upholding the structure, we all agree that's a very important, powerful argument. We're not going to upset the structure, that kind of structure. And then, we could bracket questions about rights, about practices that would not lead to upholding the structure, practices that are at odds with original meaning, and so on.
Dan: Okay, we’ve got a question about this from the listenership, from listener, Tim Wang, who said whether it's ever possible for a concurring opinion to garner five votes, and if so, what weight the opinion might have? So basically, what if Justice Jackson had also signed onto this?
Will: [chuckles]
Dan: What happens? Do we have a syllabus that says Justice Thomas delivered the opinion of the court in part, and Justice Kagan delivered the opinion of the court in part. And I can think of a bunch of instances where there's separate-- there's disagreement among the court on rationale and result and stuff like that. And so different Justices get different parts of what's formally designated as the majority opinion. That happens in Booker, the US sentencing guidelines case, that happens in Arizona v. Fulminante, a case about coerced confessions and harmless error.
I didn't have an example in my mind where-- there has to be one though where there's a majority opinion, and then there's some subset of Justices who all join the majority opinion, five or more, who also join another opinion. There must be one and someone-- this is a flag for listeners to identify it for us and tell us about it.
Will: Yeah. Shoutout on the show comes to the first or best example we get. I see them in the court of appeals more frequently. I definitely remember cases from when I litigated where you get like a panel opinion and then a concurring opinion by two or even all three Justices, especially if they wanted to say, like--
Dan: Circuit precedent is wrong.
Will: Exactly. Which I guess is something the panel's not supposed to say. I can't think of any examples where that happens at the Supreme Court level.
Dan: Yeah. And also, in the court of appeals, you sometimes see people, the author of the majority opinion also concur. I don't think that really happens in the Supreme Court, at least not in my memory.
Will: No. I think the Supreme Court instead does that by having that Justice write one opinion and then just saying this [crosstalk] has been in the court. Which is actually messier in some ways. It would be nice if the Supreme Court would adopt the concurring strategy, so you can-- [crosstalk]
Dan: Yeah. And you don't have to constantly be trying to look back at the syllabus to figure out which part of the opinion you're in.
Will: Yeah. Well, often I do like red highlights on the side of the opinion for the parts that are not the--
Dan: Yeah.
Will: I do think there's probably a norm against it. The court sort of assigns these opinions to be drafted and I think there's just a whole set of norms around the assignment process. In principle, nothing stops you from stealing an opinion you're not assigned. And sometimes that happens, that a Justice writes a different rationale, it picks up more votes. But I take it there's some norm that if you agree with the majority opinion, you're not supposed to try and steal it by just writing a better opinion and trying to get more points on that one.
Dan: Yeah. It does suggest that maybe this is not the ideal opinion assignment. So, if Justice Kagan had written the opinion, she could have gone into all the detail, and then Justice Thomas could have just said, “I'm not joining Part 3 D2 of the opinion that talks about later history.”
Will: Although I wonder which is ideal. It's nice-- Justice Kagan's main complaint is that she wishes the opinion were longer. [laughs] I guess I'm happy it's not--
Dan: Yeah. Going back to our discussion of lengthy opinions. Okay. Anything else to say about that concurrence before we talk about the longest opinion in the case?
Will: [chuckles] What do you think of the dissent, Dan?
Dan: We have this dissent from Justice Alito, which I didn't find super persuasive as compared to the majority. Basically, he thinks there's a big constitutional problem with this, that basically the court is turning the appropriations clause into a minor vestige of the Constitution. That said, it's kind of hard to pin down from his opinion itself what exactly the problem is. He seems to kind of throw a bunch of things at the wall and say, “This is bad for a lot of reasons,” rather than does he ever really clearly give us a crystal clear definition of what the appropriations clause requires and then tells us whether this measures up or not?
Will: I think he says the appropriations clause requires legislative control.
Dan: Yeah, but that's pretty vague and broad. I guess it's some kind of qualitative standard. So, we just kind of look at the whole-- he seems to say, “We kind of look at the whole picture. The way this is done, does this kind of leave Congress with too little control?”
Will: Yes-- [crosstalk]
Dan: Looking at page 18, he seems to say, “Look, here's a bunch of things that combined I don't like. The funding scheme applies in perpetuity, gives CFPB discretion to spend. The funding comes from other entities. Those entities are self-funded corporations, not departments of the government. CFPB is not required to return unspent funds to the government, maybe placed in a separate fund that earns interest that CFPB can use.” So, is it unconstitutional because of all of those things? Because of one of those things? Because of four out of six of those things?
Will: Right. I think the opinion is, in a way, clear in not taking a position about that. I think Justice Alito's position is, this clearly goes too far and it seems relevant to him, it intentionally goes too far. Like, this was done on purpose. It's designed to violate the spirit of the appropriations clause and then it does violate the spirit of the appropriations clause. It's unprecedented and exactly how many of the factors are necessary, he's not sure. Doesn't need to tell us.
Dan: Yeah. And because Congress is trying to limit the discretion of future Congresses. Although obviously, there has to be some constitutional flexibility to do that. The clear textual implication for the Constitution is that Congress has some ability to choose the length of appropriation. Would you concede that?
Will: Yeah, I hope you're right.
Dan: That has to be right. Given the army appropriations clause suggests a time limit of two years for appropriations related to the army, if there is a time limit, it has to be longer than that for other kinds of appropriations. And it's not textually stated, suggesting that maybe there isn't even any time limit so that Congress presumably has some choice among a range of options about how long to make an appropriation for.
Will: Right.
Dan: And so clearly Congress might make a choice about that in part to give more or less discretion to future Congresses.
Will: Yeah. I mean, again, I don't see how--
Dan: One other thing to be clear about what's at stake here is not whether Congress can change it in the future. What's at stake is just what the default is. Does Congress have to make the new appropriation to give the money or a future Congress have to do something affirmative to take the money back?
Will: Right. And it is, of course, Congress subject to the veto. So, you can imagine it is in practice going to be hard for Congress to rake it back, especially now if the CFPB is answerable to the president. But yeah, I think that's the rule. I don't see how there's any basis for any length of time or frankly any requirement that Congress exercise more retail control, and less wholesale control. I think if Congress has a ton of money and it wants to give it all to some agency that's like more money than they could ever possibly spend--[crosstalk]
Dan: Yeah. Like, “Here’s a trillion dollars to use at your discretion for the next 100 years.”
Will: Right.
Dan: And you might say maybe there's going to be a nondelegation issue with how the agency uses that money, maybe not. But that's a separate problem.
Will: Right. I'm inclined to think not because I'm inclined to think the nondelegation doctrine doesn't apply to giving people billions of dollars. But if there was, the only limit would be the nondelegation doctrine. But there could be an intelligible principle. “Here's a billion dollars, use it for regulating—"
Dan: Regulating the consumer financial protections.
Will: Yeah.
Dan: Okay. More to say about that one?
Will: No. I think I’ve got to put this in the case book though. In our con law case book, we have this nice section of the “power of the purse.”
Dan: Yeah.
Will: Which doesn't have any Supreme Court cases because there's a bill of attainder case. But there's not been any sort of major similar cases about this.
Dan: Your book is very committed to kind of like having stuff about every clause of the Constitution.
Will: Not every amendment, I think, unfortunately.
Dan: No. But a lot of them, right?
Will: Yeah.
Dan: And it's also kind of committed to maybe not having as much stuff about stuff that's not in the Constitution.
Will: Like what?
Dan: Well, I've given you a hard time about this already offline. But the fact that your book has no Dormant Commerce Clause section, which I took to be-- You said, “Oh, I don't know if there's a great case to put in.” I take it to be a little bit more of an ideological stance because you got a bunch of less important stuff in there or stuff that people are less likely to teach. You've got like a Fourth Amendment section. Do you think anyone teaches Fourth Amendment out of your book?
Will: Sometimes, yeah.
Dan: Who, you?
Will: I think Paulson has too.
Dan: Okay.
Will: I think Sam Bray has.
Dan: Not many. [crosstalk]
Will: You don't teach the whole of them in class. The question is, but do you get something useful?
Dan: Yes, but I’d just say way more 1L structural con law teachers want to teach Dormant Commerce Clause than Fourth Amendment.
Will: Fair enough. I think the next edition of the book will probably have a Dormant Commerce Class then. [crosstalk]
Dan: Okay. That's one of the things on my list of feedback to give you.
Will: Breaks the flow because the Commerce Clause has this chronological flow, and then figuring out where you do the Dormant Commerce Clause is a little tricky.
Dan: You do it at the end.
Will: Yeah, but Gibbons is in there, and Gibbons is kind of the proto dormant-- [crosstalk]
Dan: Do it there. I don't know.
Will: Right. So, when I teach the Dormant Commerce Clause, I do it right after Gibbons. But it breaks the flow.
Dan: Yeah. There's no perfect way to do it. I mean, it breaks the flow of the nice textual order of the book, in general, because you do Article I, II, III, and then you do federalism. And a lot of federalism is Article I. So, there's no perfect options there.
Will: I agree.
Dan: All right, should we briefly, briefly, briefly talk about the short opinions?
Will: Sure.
Dan: Number one, Harrow v. Department of Defense, which is in some ways kind of a [chuckles] stupid case that really didn't exist for many reasons.
Will: Well, it needed to exist to reverse or lose remand.
Dan: Right. But maybe we didn't ever need to get here. Number one, we have this Stuart Harrow, he works for the Department of Defense. Way back in 2013, he filed some objection with the Merit Systems Protection Board, which is the place you go if you're a federal employee that's not a political appointee, and you have some complaint about you didn't get paid or something. Objecting to a six-day furlough. Okay?
Will: Uh-huh.
Dan: This is 11 [chuckles] years ago, and then it was referred to administrative judge. Three years later, the administrative judge pulls the furlough, and then he tries to seek review from the full Merit Systems Protection Board. And while that's pending in 2017, I guess Trump didn't appoint anybody or something. So, there's no quorum on the Merit Systems Protection board for five years-
[chuckles]
Dan: -until May 2022. So, this appeal is in limbo. And then, finally there's a new quorum in 2022. And the new board is now empowered to act on appeals and affirms and denies his appeal. And he misses his timing deadline to appeal that in the Federal Circuit, the US Court of Appeals for the Federal Circuit, because this notice was sent to his old work email, and his email address has changed and it's not forwarding anymore.
Will: For the past five years.
Dan: Yeah. [chuckles] And so, he doesn't find out, and he's searching for it and he does find it 120 days later, not 60 days later, which is what the statute says. The statute says you have to petition a review within 60 days of the board's final order. And he has a pretty good reason for not doing so. Sometimes, when there's good reasons for delays of various kinds of time limits, in law, we give you an excuse. We call it equitable tolling. If there's some period of time where you weren't aware of the decision, we might toll the deadline for that period. So, he wants to get equitable tolling, but he can't because what?
Will: Because maybe the court lacks jurisdiction to decide the case that's not filed within the time period.
Dan: Okay, the Federal Circuit says, “This time limit is jurisdictional, which means that we don't have power to toll this.” This issue comes up over and over. And it's come up with the federal circuit before in this case, Henderson v. Shinseki. That's a very similar thing. The court heard the case term after mine, and there was a somewhat similar provision. And the court there, what it has done in almost all of these cases, which is to say, “This is not jurisdictional. This is just a time limit. It's not jurisdictional. So, that means that at least potentially equitable tolling might apply.”
Now, it's never been obvious to me why equitable tolling couldn't apply to a jurisdictional limit too. If equitable totaling is sort of about, has the 60 days elapsed or not [crosstalk] you could say, “Well, it hasn't been the 60 days because they don't count. Those days don't count.”
Will: Right. And so, accrual rules. There's sometimes equitable accrual rules, like the discovery rule, which I talked about last episode-- [crosstalk]
Dan: Supposed discovery rule.
Will: There you go. The clock doesn't start running until a certain date. Everybody agrees, those apply to jurisdictional statutes. Like, 60 days is the hard limit whenever the clock starts. But then, you can be equitable when the clock starts. But the usual assumption is that if it's jurisdictional, you can't lengthen the time period because that's going outside a constraint imposed on the court. I was going to say, it being jurisdictional also means that it can't be waived, which is sort of related.
Dan: Yeah. That makes sense.
Will: So, often, the other time these things come up is, everybody agrees that we don't care about the time limit or the parties agreed to waive it, or nobody noticed it. But if it's jurisdictional, then you can't help it. The court has a line of cases going back almost 20 years now about this. About lots of things that you might think are jurisdictional or not. Not quite all of them, which is maybe part of why we have to have so many cases. The courts had like two or three exceptions.
And so then, every time, we're like, “Well, is this one of the ones that's jurisdictional?” But this one is not--
Dan: But it seems like in most of these cases, the answer is obvious that it's not.
Will: Right. But these are the ones the court takes. There are cases that they don't take.
Dan: And it takes these cases, even though in a case like this, there's no split because this is a situation where there's exclusive jurisdiction in the court of appeals for the Federal Circuit. But yeah, so the court has said, in this very controversial case, Bowles v. Russell, the time limit for filing a notice of appeal from a federal district court to the Federal Court of Appeals, that's jurisdictional.
Will: Yes. Maybe only in civil cases or only in criminal cases.
Dan: In civil.
Will: Civil, yeah.
Dan: Yeah. By the way, the time limit for filing cert, a petition for certiorari is jurisdictional in civil cases, but not criminal cases.
Will: That's right. That's the one I was thinking of-- [crosstalk]
Dan: Yeah. Because I don't think that it's different. I think that it's all jurisdictional at the district court of appeals level.
Will: Yeah, you're right.
Dan: But this came up because with criminal cases, cert petitions, when I was clerking, you would sometimes get in your box to write a memo on late filed criminal cases. And so, you would note NJOT, not jurisdictionally out of time. Whereas jurisdictionally out-of-time civil petitions would not even go to the clerks, they would go to the like-- not go to the law clerks, they would go to the clerk's office and they would file some kind of memo.
Will: Because there's no discretion.
Dan: Yeah.
Will: Okay. There's only one interesting thing about this opinion, which is the phrase “pursuant to.” The government has one backup argument aside from these jurisdictional things, which is that the statute about the federal circuits jurisdiction says, “The federal circuits jurisdiction an appeal from a final order of the Merit Systems Protection Board pursuant to section 7703(b)(1).” And the government says, “Well, if you didn't comply with section 7703(b)(1), it's not pursuant to that section. And since this section is incorporated into the jurisdiction of the Federal Circuit, you're therefore jurisdictionally out of time if you're not in compliance with the statute that's named in the jurisdictional section, you're not pursuant to.” And the court says, “Eh. ‘Pursuant to’ is one of those little phrases that can mean a raft of things.” And then, they quote Bryan Garner saying, “Because the phrase means so many things, it is rarely, if ever, useful.” And they say, “You don't have to read ‘pursuant to’ that way.”
The reason this jumped out at me is there's a 10th circuit case from the term I clerked, 2008, Williams v. UPS, where we had the same problem. A “pursuant to case.” There's some federal statute about that creates immunity or creates rules if you give a drug test pursuant to Department of Transportation regulations, and the question is, “What if you didn't comply with one of the regulations? Like you were trying to, it's a DOT-governed test, but is it pursuant to? And the opinion by Judge McConnell goes through why you might think “pursuant to” means you have to comply with, why you think might think “pursuant to” just means in the neighborhood of trying to follow. [laughs] Trying to follow, but maybe not following and adopts the same view as Justice Kagan does, that it doesn't make sense to read it to incorporate every jot and tittle of the underlying law. So, I liked seeing that issue.
Dan: Yeah. It seems right to me that it would just create all sorts of complexities if we said it basically by reference makes all these other things part of that statute jurisdictional.
Will: Yeah. Well, I think it is one of these legalese things that people could sometimes use to mean that. Like, I think we could sometimes mean, “If it's pursuant to all the applicable laws, then you should do blah, blah, blah.” Yeah, but it's just because it's unclear--
Dan: In this case.
Will: It's one of those pieces of legalese that good lawyers should not use.
Dan: Yeah. The court ends up in a pretty emphatic place though, which is it basically says these things are going to be jurisdictional if they're time limits about going from one article three court to another. Otherwise, if the statute doesn't provide a clear statement it's not. And that's kind of broad. It's interesting. It's not obviously compelled by textualism. It might even be contrary to textualism. These kind of clear statement rules.
Will: Yeah. Although the jurisdictional thing is also not always very textualist. But, yes, I agree. I do think you're right. The court's imposition of a clear statement rule here is motivated about good sense than anything else.
Dan: Yeah, but everybody goes along with it. This is a unanimous opinion by Justice Kagan. Okay, that's all I got about that one. And the other case, Smith v. Spizzirri.
Will: It's even shorter.
Dan: Even shorter. This is the six-pager by Justice Sotomayor I’d mentioned, also unanimous. And I don't have a ton to say about this one. Basically, under the Federal Arbitration Act, there's the set of procedures for when someone is-- there's a case in court, and then one of the parties says, “You know what? Actually, there's an arbitration clause here. We need to go arbitrate that.” And the statute says that the court “shall” on application of one of the parties stay the trial of the action until the arbitration is concluded. And the question is, can under the provision [crosstalk] can courts dismiss the case instead of stay it when somebody asks for that?
Will: Yeah. And the answer is no.
Dan: The answer is no. It seems kind of obviously no. Although according to a string cite in the opinion, in a footnote, actually a number of lower federal courts, Eight Circuit, First Circuit, Fifth Circuit, and Ninth Circuit, had all said, “Actually, courts can do this, they can dismiss” despite this saying “shall.” And court says, “No. Shall means you're supposed to do this.” And there's another textual argument where the respondent tries to somehow make this consistent. Doesn't really work. It doesn't take a lot of time to get rid of. Easy case, six pages, everybody joins, we're done.
Will: One interesting thing, just as a piece of background, is this featured one of those concurrences we were talking about. The district court said he was bound by the Ninth Circuit precedent. The Ninth Circuit affirmed. But then, Judge Graber, joined by Judge Desai, so that's a majority of the panel, wrote a concurring opinion saying that the Ninth Circuit's position was wrong and that the Supreme Court should resolve this. So, that's an example of the phenomenon.
I was trying to figure out how we-- some version of either why would we care or how did we get here. This is just a hypothesis, but is it possible that the reason people wanted to dismiss them instead of stay them is because we have all these lists of, how many open cases you have that-- the [crosstalk] district courts? Like, do you have a bunch of open motions? And if it stayed pursuant to the FAA, it's got to go on your list. [crosstalk]
Dan: Maybe it doesn't. Maybe that's not a motion that hasn't been resolved, right?
Will: Well, but even I think they just have cases that have been pending for more of the next days.
Dan: Yeah, I don't totally know how the list works. I don't know if that's the right explanation. Again, maybe one of our knowledgeable listeners could let us know.
Will: I wondered about it because there's this passage at the end, the last sentence before the dinkus, where the court says, “District courts can, of course, adopt practices to minimize any administrative burden caused by the stay, as the Section 3 requires.” And I was like, “What could the burden be?” And I assume there is just this practical problem that comes from having cases kind of sitting around that don't require action. You can lose track of them. It's not a huge problem. Like, federal courts are supposed to get an institution, but you’ve got to have another box. You’ve got to have somebody keep track of them. You can lose them.
You occasionally hear cases where the court of appeals loses a case because it didn't go in the right box. There's that Seventh Circuit case from a few years ago where the part-- the Seventh Circuit just forgot to deal with the Supreme Court remand because they didn't have a box for like case that's been decided but now remanded. [chuckles] So, maybe they need a new box, but otherwise seems pretty clear.
It’s interesting also, this is the last thing we could say about the case, I promise, that in other cases, there are other doctrines like this that aren't provided for by the FAA, like where your habeas petition is not exhausted, or you want the administrative agency to exert primary jurisdiction, or you want to wait and see how the state court litigation goes to find out the meaning of state law, where I think the courts do have discretion to pick between dismiss and stay. Like, some courts will stay these things, some courts will dismiss that prejudice and say, “Come back later.” And we seem to just view that as a kind of-- I don't know, kind of free zone, even though the choices can matter for statute limitations and procedural-- [crosstalk]
Dan: Yeah, I mean, it definitely could matter for statute limitations depending on whether you get equitable tolling or whatever.
Will: Right. But here, the FAA seems to pick one. So, there you go.
Dan: Sometimes, the cases are easy. This one was easy. Okay, I think that's all we got.
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