In the spirit of keeping things unpredictable, we're back with a new episode barely three days after the last one. This time, we take a deep dive into two jurisdiction-y cases in the Divided Argument wheelhouse: Jones v. Hendrix and Moore v. Harper.
In the spirit of keeping things unpredictable, we're back with a new episode barely days after the last one. This time, we take a deep dive into two jurisdiction-y cases in the Divided Argument wheelhouse: Jones v. Hendrix and Moore v. Harper.
[Divided Argument theme]
Dan: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude. Dan, we're recording hot on the heels of our last recording.
Dan: Yeah. We did promise we were going to pick up the pace a little bit while we try to clear our backlog. And so far, we're doing that. Whether we continue to uphold that promise remains to be seen. But I'm glad to be back behind the mic and back in my office. Hope you are too.
Will: Mm-hmm. Very unpredictable.
Dan: You sound so enthusiastic. I was hoping to get like a woohoo. Don't do that again. Okay, well, we've got a couple more cases to catch up on. And luckily, we are in the summer, so the court is not continuing to give us more stuff that will put us further behind, so we can try to get caught up a little bit. Hopefully by September, we'll have talked about all the stuff that we wanted to talk about and maybe can start looking ahead at that point to the term to come.
But we've got a couple of cases. We'll get to those in a minute. Not a ton of news. Got a couple things maybe to pull out. What about this one, Will? Pew Research Center released something today, Friday, July 21st, when we're recording, showing that the favorable views of the Supreme Court have fallen to a historic low. Fewer than half of Americans, only 44%, now express a favorable opinion of the court, while 54%, 54% have an unfavorable view. Are you worried?
Will: Why would I be worried?
Dan: Because you're worried that your favorite institution is now getting slightly delegitimized.
Will: The Supreme Court is not my favorite institution.
Dan: What is your favorite institution?
Will: The University of Chicago Law School.
Dan: I knew you're going to say that. Favorite governmental institution?
Will: Governmental institution. Oh, that's interesting.
Dan: Your favorite branch.
Will: Supreme Court is not a branch. The judiciary is a branch.
Dan: Yeah.
Will: Supreme Court likes to trick us into thinking they're a branch, but that’s just part of their plot.
Dan: Judiciary is your favorite branch.
Will: I'm a big fan of NOA, the National Oceanographic. They're good.
Dan: That's not a branch.
Will: No. They're an institution, I think. I was trying to figure this out. Is this polling post this term, like, this is post SFFA? I think there was a dip in the Supreme Court's popularity after Dobbs, obviously, but this is not just the post-Dobbs dip. This is the--
Dan: Yeah. It's conducted from July 10th to July 16th.
Will: Okay.
Dan: I think all of Americans are there refreshing SCOTUS blog for the entire month of June.
Will: I think I owe you a mea culpa, probably forgotten.
Dan: I know where you're going.
Will: I think at the end of last term, I predicted that the court's popularity would go up this term because--
Dan: Because of affirmative action.
Will: Because they would strike down affirmative action, and that would give them a boost. And they did strike down affirmative action, that appears not to have given them boost. We don't know that's the size of the source of the decline. It could be these are all the people who suddenly owe $10,000 more in student loans than they did in early June. But I was wrong. You were right.
Dan: But not necessarily. I mean, these things could move in a weird way. Like, it could take a while for the affirmative action stuff to seep into public consciousness.
Will: Yeah. But also, the biggest surprise I have, looking at this historic Pew favorable rating, it has a little line graph here which we're looking at and the readers can't see, listeners can't see, but you can find it, is that just a couple of years ago, the court was at 70-30.
Dan: Yeah.
Will: Wow.
Dan: I'm trying to figure out what-- so that would have been--[crosstalk]
Will: And that's like post--
Dan: That would have been 2020.
Will: Yeah, maybe.
Dan: It's a little hard to tell. Let me see if I can pull out any more information of the prior years. It looks like it's low right around 2016, 2015, and then steadily goes back up and seems to, at least according to their chart, go up despite all the craziness that was happening with the Trump nomination/confirmation process. And then really precipitously declines.
Will: I mean is it the Kavanaugh appointment? Is that on the chart?
Dan: It looks like it's after-- maybe this is a bad chart.
Will: Is this the COVID cases?
Dan: I don't know. We need somebody to dig into the cross tabs and all that a little bit more. But, I mean, clearly Dobbs has played a big role here.
Will: I think the low is around Obergefell, because if you look at they also have the partisan one. And in 2015, Republican favorability goes down to 33 and Democratic favorability goes up to 61.
Dan: That makes sense.
Will: Which I assume is at Obergefell.
Dan: Yeah.
Will: But then, the Republican favorability climbs to 75 while the Democratic favorability stays at 67.
Dan: Mm-hmm. Which is interesting, which does sort of support something that I'm not the first person to say this, but that there is this kind of interesting asymmetry, which is that liberals kind of like certain things that the kind of Kennedy-O'Connor court did. They kind of did some social issues stuff that liberals like. But then, the court was also doing some other stuff that was good for conservatives. And so, the court sort of had a strategy. I mean, I'm not saying it's a conscious strategy, but there was a way that the court could kind of thread the needle and make a lot of groups happy. Look, conservatives were unhappy about the social issues stuff. But there could be an asymmetry in terms of what people want. But now, I think it's fair to say the court has kind of just moving any more conservative direction across all areas. And so, it doesn't have this way to kind of throw each side a bone. It's not choosing to do that right now.
Will: In the absence of Justice Kennedy, because Justice Kennedy was there with everything--[crosstalk]
Dan: Yeah, post Kennedy.
Will: Yeah, that's interesting. I mean, maybe on free speech, they're as liberal as ever. Although maybe free speech is no longer liberal. I'm confused about that.
Dan: Yeah, I think that's still kind of an ongoing process. And we'll see what happens with these various things. They're trying to restrict social media in some states. We'll see what happens with-- I don't know, there'll be stuff like the don't say gay law coming up at some point.
Will: Right. Just in terms of perceptions, also, I'm struck by this line she pointed out to me. "Half of Americans now view the Supreme Court as conservative, while 4 in 10 see it as middle of the road. Only 7% describe the court as liberal.” It's interesting to think about who that 7% are and what they--
Dan: Did you get polled on this?
Will: I don't remember getting polled, no.
Dan: Okay. You'll figure out whether--
Will: But also interestingly, it says, since 2020, the share of Americans saying the court is conservative has increased to 20 points. So, the number of people who went from middle of the road to conservative, even though since 2020, there have been no new conservative appointments to the court.
Dan: But the court has done salient things. The court has overturned Roe.
Will: That's true. But since 2020, has the court surprised you with its conservativeness, or has it been as conservative as you thought it was since 2020?
Dan: I think it's been a mix. I think if we talked about it-- I think you sort of saw Dobbs coming a little earlier than a lot of people, based on how they tweaked the QP. And at the time, I found that persuasive, and I was kind of on the same page with you even before the oral argument that they probably were actually going to do this. But I think let's say December 2020, right after the Barrett confirmation, I think if we had sat down and say, “What are the odds they will fully overturn Roe in the next two years?”, I think we would have said, like, “I don't know, 40% maybe.” They'll probably continue the kind of, like, death by thousand cuts, or maybe they'll set up the next case and then they'll-- we certainly wouldn't have been 100%. So, I think that don't you think it's fair to say that whatever, there was a certain amount of uncertainty as of 2020, and some of that uncertainty has been resolved.
Will: That's fair. And before the Harvard case was this far along, I was also confidently and incorrectly predicting that the court would overturn affirmative action in 2028, that the 25 years thing would be so attractive that would like--
Dan: That's so silly, you really thought--
Will: I was right that they were obsessed with the 25-year thing. I just didn't realize they were going to--
Dan: Really, why is anyone taking these lines in the opinion seriously? Just preposterous.
Will: I mean, Justice O’Connor wrote it. It's just like if you don't have--[crosstalk]
Dan: [crosstalk] -public opinions work, you don't get to just like-- what if she'd said like, 26 years? Would they have waited till 2029?
Will: Well, they didn't wait till 2028, so obviously I was wrong either way. But yes. [laughs]
Dan: Would that have been your view?
Will: Yeah, absolutely.
Dan: If they'd said 26 and a half years, that would have been like binding.
Will: Now, if they said 50, then I would say, "Ah, never mind."
Dan: That did set up, I think, one of the better Clarence Thomas, Justice Thomas, CT lines, where he said, like, "I agree with the court that affirmative action will be unconstitutional in 25 years. I also think it's unconstitutional now." [chuckles] That was pretty good. Credit words too. He can get some good ones out.
Will: Yeah.
Dan: Okay. So, we'll see whether that keeps going up or down. But related to that, I think that in terms of this term, maybe like a tiny bit-- like if you're a liberal, you don't love the court right now and you don't love what the court is doing, maybe this was a tiny bit better than you could have expected.
Will: For sure.
Dan: Like a couple of important ways. And this is one where I think-- I don't know if I've put this in print. I may have put it in print. I probably did at some point, which is that my view has always been that the court over a pretty long period of time, certainly, but certainly the post-Kennedy court, they will not always 100% go to the conservative thing, but in sort of structural cases that implicate the balance of political power. They're going to be on the red team. And that did not prove to be true this term.
Will: Right. The election law cases.
Dan: Yeah. The two cases that kind of most directly bear on the kind of allocation of political power, one of which we're going to talk about today, Moore v. Harper, and another which we've already talked about, Allen v. Milligan. They could have done the super conservative thing that would have had direct impact on-- I think, fair to say would have had direct impact on the balance political power in Congress or at least potentially and they didn't do it.
Will: I'm going to quibble with you about Moore v. Harper when we get there but--
Dan: Because in other states, it might work out differently and stuff.
Will: Yeah, figure out that. Yeah, it's funny that there's this set of cases where I think for this season, we've been talking about, is the court going to destroy democracy in this case? Is the court going to destroy democracy in this case? And I feel like maybe they shouldn't. They don't get a lot of credit for not destroying-- for beating expectations, like beating the spread. Adam Liptak had a story that was a kind of, like term ending, like, "Oh, court's kind of moderating itself" type story.
Dan: Liptak, friend of the show. I love a lot of Supreme Court journalists, but I think Adam is consistently, at least tied for the best Supreme Court journalist. I think he's just very scrupulous.
Will: Scrupulous, insightful.
Dan: Yeah, does not have an agenda. It's just very hard to detect agenda with his pieces. I think he's really, actually just trying to tell you what's going.
Will: He can write both things that if you're a layperson following the court, you learn from but even if you're an expert following the court, you learn from, which is a real talent.
Dan: And he quoted me recently.
Will: He never quoted me.
Dan: That's not true. He's quoted you. I remember having a good quote from you.
Will: It's rare. That's fine.
Dan: I'm going to find out.
Will: It's more important people to quote. I don't mind.
Dan: No, he's quoted you. I'm going to find it in a second.
Will: I'm not very quotable.
Dan: No, you're quotable.
Will: I was going to say--
Dan: He quoted you saying, "It has been a quiet term and that is a good thing for the country. Overall, the court was the least dramatic and most functional branch of government. We will look back on this term-," he added as "-the calm before the storm." That's the end of an article. That's like a bunch of words for you. That was a good-- this is a while ago, but I remember reading that being like, I kind of had wanted to use that, had that kind of calm before the storm phrase in my mind for talking to people. And I was like, "Baude got there first," well before we did this podcast.
Will: Well, thank you. I appreciate that.
Dan: But I mean, again, he's quoting you for saying, "Everything is fine. Nothing to see here. Court's fine."
Will: I said it's coming, calm before the storm.
Dan: I'm just looking for places to get digs in.
Will: I know.
Dan: And it was a correct quote.
Will: Our readers love the digs. I read this interesting article recently about--
Dan: I love that you always say, you are so wedded to reading, you can't say listeners.
Will: [laughs]
Dan: You are such a books guy. I'm looking at your books right now.
Will: Well, we do have these people who like podcasts. I don't listen to podcasts, but who read the transcripts.
Dan: Are there a lot of those?
Will: I have no idea.
Dan: Okay.
Will: I'm a podcast guy, I actually listen to things. I listen to more podcasts than you do, Dan, including us.
Dan: I listen to basically no podcasts. I listen to books on tape. Audiobooks. Have been listening to Slow Burn this season [crosstalk] podcast.
Will: The Thomas one?
Dan: Have you been listening to that?
Will: I listened to some of it.
Dan: I think it's pretty interesting. Do you have some great gripe with it?
Will: I have not listened to it enough yet to have a gripe with it, but I'm sure I will. [crosstalk] feel have gripes with it. I just haven't gotten there yet.
Dan: You're just-- these liberal Slate people they must-- it's coming. No, it's super interesting. He's an interesting guy. Like, he's a complicated guy, and there's plenty to criticize, and there's some troubling stuff, obviously, that you can--
Will: Very little to criticize here.
Dan: He's a fascinating guy. Acknowledged kind of Malcolm X left radical for early part of his life.
Will: I think in a world where lots of people don't change their fundamental views, we think of people as being locked in. I think seeing people who have strong views and have changed them over time, is just important to realize that can really happen.
Dan: And I didn't know kind of all the backstory that he kind of gets in public consciousness by giving this kind of interview. I think it was in the Washington Post. Right at the beginning, as the Reagan administration is beginning, he gives that interview and he talks about how he's got his sister as a welfare queen. Probably, that's not totally true, not really accurate, but caused a lot of people to notice him. And then, he gets pulled into the EEOC, and he's off to the races.
Will: One last thing I was going to mention is I stumbled across an interesting analysis about Supreme Court legitimacy that made this interesting claim that in the 50s, when people were writing about the court's legitimacy or the 60s, they were almost always talking about it in terms of its legitimacy among the bar or among experts. The idea was that the court would have legitimacy because lawyers who read its opinions and analyzed it would see that it was doing law. And that's where--
Dan: [crosstalk] -the legal legitimacy, the internal legitimacy.
Will: Neutral principles, Herbert Wechsler, Alexander Bickel, like all that stuff.
Dan: And Dick Fallon and Tara Grove have both written about the different kinds of legitimacy.
Will: And then at some point in the past, close to the past decade, two decades, just the natural way law professors talk about the court's legitimacy switches to more like popular perception.
Dan: Interesting.
Will: The claim is, it would have been 50, 70 years ago, we would have brought up this Pew poll, and we would have been like, "Who cares what the problem is with the court?" That's not about its legitimacy. Its legitimacy is [crosstalk] lawyer class.
Dan: We're thinking about that in the 50s when there's massive resistance and there's people talking about interposition and talking about [crosstalk] Warren.
Will: I think that is they were thinking about it, but then it seemed like, of course the court wouldn't care about that.
Dan: I see.
Will: Of course, the court wouldn't care about massive resistance. The question would be, did the lawyers agree that the plebes were wrong.
Dan: But people even at the time knew that the court was aware of this stuff, right?
Will: Right. I just think the legitimacy of that kind of legitimacy was lower.
Dan: Interesting.
Will: Whereas now there's much more of a popular constitutionalism has seeped into the water enough that even law press or former Supreme Court clerks think of that as like a much more natural ingredient into how--
Dan: Oh, I see where you're going with this. You just planted the seed for our next lead-in, right?
Will: I was trying to.
Dan: Yeah, you did, go for it.
Will: All right. So, this brings us to one last thing I want to mention before we get to the cases, which is an open letter to the Biden administration on popular constitutionalism posted by Mark Tushnet, coauthored with Aaron Belkin, sort of their letter to Biden about how he got a deal with the court. Did you see this?
Dan: Yeah. It was interesting. And I think you and I agree on this, that Mark Tushnet is one of the more brilliant constitutional law scholars of his generation in recent decades. Just incredibly prolific and incredibly smart, incredibly knowledgeable about a huge range of things, has written really good theory stuff, written history. Just a really, really smart guy.
Will: Yeah. An interesting--
Dan: Certainly somebody that I think you disagree with about tons of stuff.
Will: Yeah, although I admire his candor so much in some ways. He got a lot of flak for this thing. In 2016, he wrote against defensive--
Dan: Liberal constitutionalism. Defensive liberal constitutionalism.
Will: Yeah. Which I think definitely goes in the annals of the most infamous premature analysis by a law professor since the premise of it was, "We're about to retake the corks, this clearly is dead."
Dan: Although, in fairness, he said, look, "This is all supposing Hillary wins. And if she doesn't, we've got a lot of problems. And so, who cares?" Like, I can say this. And he's. Not totally wrong about that.
Will: [laughs] I know that's just he's right about even that. This has been read and mocked and denounced on the floor of the Senate. But I actually thought that was also just an example of a great piece. It was a relatively sophisticated thought-through plan. Many law professors around the country were having those conversations. Many of them were too cagey to post them on a blog where we could read them. But Tushnet is just a real straight shooter. And he is shooting again.
Dan: You can set up a criticism in the sense that he's written books about taking the Constitution away from the courts. We should have-- and this is related to the thing that he wrote, court shouldn't have this paramount role and we should have other-- But then at the same time, when the power balance of power shifts, he's all for the court having a lot of power, but I think he just would acknowledge that. He's like, "I'm a leftist." I don't think he'd call himself a communist, but he's like a hardcore leftist. He has certain substantive goals, and he's like, "We should accomplish those goals."
Will: Yeah. I mean, of course, it detracts from your ability to neutrally scold the court for being activist if you've admitted that it's outcome motivated. But that may not matter because nobody cares what Mark Tushnet thinks, or at least the court doesn't.
Dan: A lot of people do, apparently.
Will: Yeah. And then, other people can take his arguments--
Dan: Yeah.
Will: So, we'll see if President Biden cares what Mark Tushnet thinks.
Dan: So, what does he say?
Will: All right. "We urge President Biden to restrain MAGA Justices immediately by announcing that if and when they issue rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental mental commence, the administration will be guided by its own constitutional interpretations." Go on to explain, "This is popular Constitutionalism. Shouldn't ignore everyone. But when MAGA Justices issue high stakes rulings that are based on gravely mistaken constitutional interpretations, and when presidential action predicated on his own administration's constitutional interpretations would substantially mitigate the damage, the President should do so."
Dan: So, I'm going to say there's probably 50% of that you like. You're a departmentalist, you want the President exercise more independent judgment about constitutionality and not just defer to the court about everything.
Will: Sure. I found this a little vague, and maybe that's the nature of the beast, about the mechanics of departmentalism. My view, which I think is the Constitution's view and was Abraham Lincoln's view, is that when the court issues a ruling, the President is bound by that judgment. Like, as to the parties, and often the President is a party, but the President is not bound by things that are not the judgment by the opinion. So, if the court issues a ruling on a specific case, the President has to obey it. But as to other cases, he can do what he wants until the Supreme Court rules again. Now, of course, many times that will be sort of like a distinction without a difference, because if the Supreme Court rules that there's a constitutional right to gay marriage and then every time you try to stop some same-sex couple from getting married, the court will stop you again and eventually sanction you.
But in some cases, it's a distinction that can matter. In some cases, it'll put more focus on doctrines of standing and remedies and nationwide injunctions and things like that we care about on the show. So, Tushnet doesn't get into that at all, and we can't tell if that would be a friendly amendment to what he's saying or if he would go further. I can't tell what he thinks should happen in the student loans cases, but I wrote a letter.
Dan: I mean, I think he's going to go further than you. Like, if he says Abraham Lincoln's refusal to treat Dred Scott as--
Will: Abraham Lincoln did exactly the right thing. Abraham Lincoln, in a case that did not involve the federal government, Dred Scott v. Sandford, Abraham Lincoln even said, "Nobody is proposing to free Dred Scott. He's still a slave." But the Lincoln administration had issued passports to African Americans as citizens, even though Taney had said, "Black people can't be citizens." And the Lincoln administration signed into law a repeal of slavery in the territories, even though Taney had said, "Congress can't repeal slavery in the territories." Now, those never got to court again because Civil War, Taney dead, etc. So, that part seems fine.
But in the student loan, if a district court issues a nationwide injunction to the administration telling it that they can't engage in student loan forgiveness, Abraham Lincoln-- I mean, Abraham Lincoln would be very confused by many aspects of that premise. But Abraham Lincoln would think, I think, "All right, I got to do that, unless I can say that district courts lack jurisdiction to issue nationwide injunctions."
Dan: So, the choice to call them MAGA Justices--
Will: That's the thing that most bothers me.
Dan: Yeah. And I think that you could say and you can believe, most days, a lot of days, I do believe that some of these Justices are very, very ideological and that they are aware of the political consequences of their ruling and maybe they like them. I mean, you can debate and there's a wide range of views you can have about that. And that I think there's certainly a lot of things that you could point to say that they're being too guided by partisan considerations, blah, blah, blah. But to equate them with just MAGA Justices seems wrong to me insofar as I think you and I can clearly imagine what that would look like. The kind of Justices that Trump would really want. Not the ones that he ended up with, but the ones that today, 2023, if he were picking, they would not behave like these Justices. In every case, they would do like crazy, crazy things, utterly lawless things.
I think this court, I don't agree with you that this is the most lawful court in American history, whatever your quote was, but I think this court is somewhat constrained by law and feels at least-- some of them at least, maybe not Justice Alito, but at least some of them feel meaningfully constrained to take positions that are within a certain decisions base.
Will: Yeah. I completely agree, and I was going to add if I were-- I mean, look, I don't know President Biden very well, I've met him one time, but he has this shtick about separating MAGA Republicans from Republicans. And how like regular Republicans, "You should vote for me because I'm like the normal rule of law guy, and we need to unite against the MAGA Republicans." A shtick I love for obvious reasons. And this is not help-- This is in some way picking up on that shtick and then destroying the very distinction it's trying to make. If we're going to water down the regular Republican versus MAGA Republican distinction to the point where any Justice on the court is on the MAGA side, not the regular, then count me out. Then, make me MAGA.
Dan: It takes away your ability to criticize the court from going further and it's like there does have to be a difference between even Barrett, Kavanaugh, Gorsuch. I mean, Gorsuch is arguably in the kind of bigger cases, a little bit more in this MAGA direction, but there's difference between any of those three and some of the kinds of people that would be the ideal Trump Justices. I mean, the same way that there's differences in the Department of Justice under Trump, from some of the folks that were in there that did pretty conservative things. And someone like Jeffrey Clark, who was the acting-- he was the assistant AG, who was basically plotting something that looks like a coup because he had believed in these crazy conspiracy theories and was going to back up Trump in trying to steal back the presidency.
Will: We don't know that he believed them. He may have just found it-- I don't know that makes [crosstalk] worse.
Dan: Yeah, I mean, there was some news reporting at the time that sort of suggested he was really engaging with these conspiracy theories and actually was maybe believing them. So, I mean, at least I thought that there was some-- I'm not just making that up.
Will: In an article I'm working on, I've been working through this issue and the difference-- it may not matter, but the difference between people who really believe the conspiracy theories and people who just pretend to believe the conspiracy theories for political gain.
Dan: I just remember reading some news stories that suggested people around him were kind of surprised that he seemed to be getting really agitated about the conspiracy theories. But either way, it doesn't really matter.
Will: Didn't we just talk last episode about believing those stories, Dan?
Dan: I believe that news stories accurately report quotes from other people, for the most part. Anyway, this is a dumb thing for you to take on, but there's a difference between him and even somebody like that liberals really don't, like Bill Barr. And the difference can be the difference between having some shred of a democracy and not. And I think that we should care about that difference, and we should try to emphasize those differences and try to continue drawing that wedge that you're talking about, rather than just being like, "Well, if you're are Republican, you are a fascist." And so, it's either we defeat the fascists or we have fascism.
Will: To be fair, this does not say all the Republicans are MAGA Justices, so maybe John Roberts is on the safe side of their line. The other thing interesting about this as a matter of politics is, there's this theory-- I don't know if it's true, there's this theory that Biden doesn't mind losing these cases in the court. Look, for Biden to announce student loan reform and then get it struck down by the court, it's kind of the best of both worlds. He gets all the political credit for trying to do it. People get mad at Republicans for stopping it. And it's a lot cheaper, like doing it for real. [chuckles] There were theories that even one reason he didn't go through notice and comment the first time, used the Heroes Act, which maybe was a flimsier statutory authority, was losing would be a plus.
I read the upshot of this letter to be, you shouldn't do that. You should actually try to get things done. Maybe you still go score political points, but we should expect the President to actually use his powers to try to implement his vision rather than, say, "Conservative Supreme Court. What can you do?"
Dan: It's hard to know. I mean, he certainly has not been as aggressive on criticizing the court as a lot of people on the left want him to be. He's way more institutionalist. He's [crosstalk] against court packing.
Will: As I say, he doesn't even want to pack the court.
Dan: Yeah.
Will: It warms my heart.
Dan: That's interesting. And it makes you wonder, is there anything that the court might do while he's still president that might kind of push him further into the left, tear down the court camp. Because it didn't happen, Dobbs is the one that probably the Democrats care about the most, and he obviously was critical of that decision.
Will: Right. I think there are things the court won't do that if the court did do, they'll be so outside the bounds of reasonable constitutional theories, like the things that happened in 1935, 1936, 1937.
Dan: Things that the court upheld that would-- [crosstalk]
Will: If you look at the list of things the court struck down in the--[crosstalk]
Dan: A New Deal stuff that the court was going after.
Will: A dozen major federal statutes, like all the size of Obamacare, all struck down and the minimum wage in most states. I think if the court did that today, the court backing will probably pass, but they're not going to go anywhere near that today.
Dan: Maybe that's sort of what Tushnet wants. He's actually happy to have the court go full MAGA, because then that heightens the contradictions. It provokes the crisis.
Will: But the court's not going to go full MAGA.
Dan: We'll see. Not this term.
Will: Not this term, not next term.
Dan: It depends what happens. Who can say? They didn't do it this term, that's all I'll give you.
Will: Okay. I'll predict not next term or the term after.
Dan: Well, I'll predict that even if they do, you won't say that they did, how about that?
Will: [laughs]
Dan: I'll predict that you will never say that they did.
Will: If they do, I'll say so.
Dan: Okay.
Will: Shall we just talk about whether actually what they did this year?
Dan: Yeah. So, we got a couple of cases, both of which I regret to say, I find confusing, and that I feel like I say this a lot recently, that I've read these, I've thought about them. I'm confused, and I hope that you are going to help me, but I'm always worried that by doing that, you're going to-
Will: Trick you.
Dan: -lead me astray. But I find them both confusing. So which confusing case should we talk about first?
Will: Let's talk about Jones v. Hendrix.
Dan: Okay. This is a kind of classic Divided Argument, unscheduled, unpredictable kind of case.
Will: Important, technical, criminal, kind of underappreciated. That's what you mean?
Dan: Yeah, like in jurisdiction-y. I feel like we're-
Will: Intersection of--
Dan: -jurisdiction mavens and--[crosstalk]
Will: Jurisdiction and incarceration or jurisdiction and the police is our kind of--
Dan: Crim pro.
Will: Yeah, sure.
Dan: Yeah.
Will: This is not crim pro. I guess it is.
Dan: Just crim pro. Well, you're saying it's not crim pro because it's--
Will: No.
Dan: This is crim-
Will: Okay. Crim pro three--
Dan: Maybe it's a civil, is that why is that your--
Will: I thought of crim pro as stopping once you're convicted, but post-conviction is also crim pro.
Dan: No. Conviction is crim pro. They teach that in crim pro.
Will: Oh, I thought that went to fed courts.
Dan: No. I mean, habeas stuff is in the crim pro books. It's not as covered as extensively. Appeals are crim pro.
Will: Really?
Dan: Yeah, I teach appeals. I teach harmless error. You think that's just a fed courts doctrine?
Will: No. Harmless error is a crim pro doctrine.
Dan: I might be the nation's leading expert in harmless error.
Will: You are, yeah.
Dan: No, I mean top 10.
Will: [laughs] There are not 10 experts on harmless error.
Dan: There might be practitioners out there who deal with the stuff, who've dealt with more of the lower court stuff. I mean, I'd say I am tied for expert on Supreme Court precedent about harmless error, at least if I take an hour to refresh my memory and stuff.
Will: All right, this is a 6-3 opinion by Justice Thomas that reaches what I think we all call the conservative result. The one in which the prisoner loses and the forces of incarceration win. Interestingly, it's not one in which the government wins. This is one of these cases where the government, while not exactly on the petitioner's side, was on its own side. But the basic question is, if you're a federal prisoner and the interpretation of the statute you were convicted under has changed such that you shouldn't have been convicted or your sentence is illegal, something has changed about the law, we now realize--
Dan: Something has changed or something--?
Will: Well, the Supreme Court's interpretation of the law has changed such that we now realize--
Dan: Or the court never reached the question, [crosstalk] possibly.
Will: Yes, fine. Where do you go to get that error fixed? Or anywhere? Can you go anywhere to get that error fixed? And the court's answer is nowhere.
Dan: Under certain circumstances, the answer is nowhere.
Will: So, in this case, the specific sort of errors--
Dan: How we describe the thing that you're talking about does maybe change people's priors.
Will: Sure.
Dan: In the sense that you're saying, "Oh, it's a statute." But another way to think about what's going on here is you were convicted of a crime, you're convicted, you're in jail for like a really long time. The thing you were convicted of, actually, it turns out, wasn't a crime.
Will: The thing you were convicted of, well, yes, I agree the way you-- [crosstalk]
Dan: The stuff that you were convicted of and proven to have done is not a crime. And it could be even the case that-- for example, it could turn out that the law is clarified such that you're convicted of committing a crime with elements ABC. Element D was totally absent. And then, it turns out that the court later says, "Oh, yeah, element D, you have to prove that."
Will: Yes.
Dan: And element D, we could all say is totally not present. Not only was it not proven, everyone acknowledges. [crosstalk]
Will: That's right. These are two different ways to frame the case, and the fact that could be framed in both ways is important to the thinking about how it's put. You can imagine a case that everybody thought that the federal drug laws banned possession of some medical weird pharmaceutical, and you were convicted of it, and then it turns out, "Oh, actually, they don't ban it at all. We were wrong. What you did is totally lawful." Does this case would apply to you and would say, "Sorry, you're in jail for a non-crime you did commit"?
Dan: And that we could be totally aware of, that everyone could be like-- we don't even need-- that doesn’t-- like we know that, we all know that.
Will: Right. Now in this case, and this is relevant to things we'll talk about, in this case, well, in this case, the error is based on a Supreme Court precedent called Rehaif, which deals with the rule that felons cannot possess firearms. And where the court says to be convicted, you have to know you're a felon, know that you are a felon, and thus can't possess a firearm. And so, it is technically-- and they didn't do that in Mr. Jones's case.
Dan: They didn't prove that.
Will: Right. They didn't try to prove it. I mean, nobody knew they were supposed to. So, it is technically a case of there's element D, and nobody proved element D. Now, there is a dispute a little bit, and this is part of what brings the government in a weird position about, is it at all plausible that Mr. Rehaif did not know he was a felon? Convicted multiple times, done some time. But again, he had a right to have somebody prove that and nobody proved it.
Dan: So, this might not be the thing that we're most concerned about, which is where we would say someone is actually innocent of this. The kind of example you just gave.
Will: Right. I think there are a lot of cases about this in lower courts that involve the Armed Career Criminal Act, are you aware about that? They're also versions of the like, you're convicted of being an armed career criminal, and then it turns out that drunk driving is not being an armed career criminal or whatever. Now, that's unconstitutional, which puts it in a different category. But there are a lot of cases about that. But the basic question is, this kind of error, whatever you want to call it, in your conviction, you're convicted of the wrong thing or wrongly convicted, do we have a way to fix it, and how does that work?
Dan: Yeah. And you do have a way to fix it under some circumstances, but a lot of people are going to be in the position that the defendant here is in. And so, maybe you could help us with the statutory framework a little bit.
Will: There are two statutes. One is called 2241, the general habeas corpus statute, and one is called 2255, which we call the alternative post-conviction remedy for federal prisoners.
Dan: Yeah.
Will: Which looks a lot like habeas for many purposes, but is technically its own kind of proceeding. And 2241, habeas-- [crosstalk]
Dan: You do it in the court where you were convicted. Typically, in habeas, it's a new civil action, you go to the jurisdiction where you're being held as a prisoner, and it's a proceeding against the warden saying, "Hey, warden, let me out." And a 2255 motion is not that.
Will: Right. Exactly. So, habeas and for state prisoners who have complaints about how they're being held, the federal remedy is this habeas remedy. They go to the warden. They say, "Warden, let me go." And then, we use that as a vehicle to relitigate various aspects of their conviction and sentence. That used to be how federal prisoners worked too, but Congress passed the statute 2255 to move them, to send them back instead to the court that convicted them. There's some interesting legislative discussions of legislative history, but because federal prisoners are held all over the country, because we have a nationwide federal prison system, they were all clustered in a few places. And so, you'd have all the criminal convictions from 100 districts, all being heard in five districts that then had tons of these. Didn't always have the records because this is before Pacer. So, we have a proceeding that says, okay, most of the time, if you want to go back to the court that convicted you and say there was a mistake here, you should go back to the court that convicted you rather than some warden.
So, you have these two procedures. Now, I think two statutory facts to add. So one is when they create this new 2255 proceeding. They have something called the Savings Clause that says--
Dan: You mean Saving?
Will: Saving? [crosstalk]
Dan: The court says Saving, singular.
Will: Okay.
Dan: I've always heard people say Savings.
Will: Yeah, I wonder if that matters.
Dan: I don't know.
Will: All right. Says, "You're supposed to use this new proceeding, 2255. Don't go bother the warden. Unless the 2255 remedy by motion is inadequate or ineffective to test the legality of his detention." So, it's like sometimes you can when it's inadequate or ineffective. One big question in this case is what that means, what makes something inadequate or ineffective. Second thing that happens is in 1996, Congress enacts--
Dan: This is after the previous statutory reforms we just talked about.
Will: Yes. That might be important. Congress enacts something called AEDPA, the Antiterrorism and Effective Death Penalty Act, called by some ADEPA. Although I think that is--
Dan: Wait, really?
Will: Yeah.
Dan: Who says that?
Will: A bunch of people who I won't defame, but I'm pretty sure it's AEDPA because the E comes for the D.
Dan: That doesn't make any sense.
Will: Yeah. All right. It's like the people who call the PCAOB peekaboo.
Dan: That's just kind of cute. We all know that that's not really how it's spelled, but I was going to think I was about to suggest that one. But it's funny, right?
Will: [laughs] No.
Dan: Close enough.
Will: It's the PCAOB.
Dan: Yeah, it's close enough.
Will: All right. AEDPA imposes a bunch of restrictions on both federal habeas for state prisoners and on the new 2255 proceedings. Importantly, something called a restriction on second and successive 2255 motions. So, you can file your first one to bring whatever post-conviction challenges you want. If you file any more after that--
Dan: Within a time. There's a one-year time limit that can be subject to certain kinds of tolling.
Will: And then, if you file the second one, you have to make a pretty stringent showing about why you should be allowed to file a second one. And according to the statute, you have to either rely on newly discovered evidence, "Aha, we just discovered they were concealing the person who would have exculpated me." Or a new rule of constitutional law. And there's some rules of retroactivity and when you can use what counts as a new rule when you use that.
Dan: Not much stuff.
Will: Problem is-- two more things. In general, you file that first motion within a time frame, you bring all the claims you can, but of course you can't anticipate all the ways in which the law might change, or the Supreme Court might rule things later. And even if you did anticipate them, it may well be just too soon for you to win. It might be that you have some claim that under circuit precedent is foreclosed. 12 years from now, the Supreme Court will eventually agree with you, but not yet. And these statutory claims we're talking about, are not rules of constitutional law, they're rules of statutory law. So, there's not an obvious place in the 2255 proceedings to be able to bring a second and successive claim when the Supreme Court issues one of these new rulings with the meaning of the statute. And so then, the question is, how do those pieces fit together? If that's true, if the Supreme Court's now issued a ruling that existed at the time would have helped you, but you didn't do it on your first ruling and now you can't do on your second successive petition. Is that governed by the too bad, so sad principle of federal courts we've discussed before? Or is that instead saved by the saving clause that would say, "Ah, the 2255 motion is inadequate or ineffective test the account of your detention because you can't file one. Therefore, you get to use 2241." That sounds really complicated and boring.
Dan: I wasn't bored. I think this is interesting.
Will: Okay. And it's important, because it essentially goes to this question of when you're innocent, is there someplace you can go about that? Or do we reach a point where we say, "Well, you may be innocent, but several years ago." At this point, you're just writing-- [crosstalk]
Dan: Yeah. In this case, we're talking about a sentence that's nearly 30 years long. So, stakes are high for people potentially affected by this who want to be able to come in and say, "Hey, the thing I was convicted of, they didn't prove the elements of the crime," which is normally a thing that we care about. Right?
Will: That's a thing we care about a lot. And I think it's interesting also-- in the current reality of the court, my sense is the court doesn't issue a ton of new constitutional law that helps criminal defendants.
Dan: Yeah.
Will: There's some, like the Ramos, the [unintelligible [00:44:33] thing-- [crosstalk]
Dan: Even when they do, don't they all say that it's not retroactive?
Will: Yeah. Well--[crosstalk]
Dan: Isn't that like a closed class now? [crosstalk]
Will: The watersheds are the closed class, but the other ones, the substantive ones, actually not a closed class. Like, if they say that the statute is unconstitutional, like Johnson--[crosstalk]
Dan: Yeah, okay.
Will: But what I was going to say is but the court seems to issue quite a few statutory interpretation cases in criminal cases where they interpret the statute more narrowly than a lot of lower courts. We just talked about some of these out of services fraud cases this term. But every term, like Rehaif, this felony possession case is not an outlier like every term the court comes in--
Dan: Yeah. Often is more defendant friendly than the lower federal courts.
Will: Yeah. So, this is like the real body of the few places which the law is maybe moving to help federal criminal defendants. And if the answer is, well, it's actually not going to help any of the ones who are already convicted, that's quite a kick in the teeth.
Dan: Yeah. And whose convictions have gone final and who are past the one year.
Will: Yes.
Dan: So, if you're still on appeal and there's a new court ruling, you're definitely going to get the benefit of that. You've preserved your arguments after direct appeals. If you can go back and do your 2255, I think you still get the benefit. Right?
Will: Yeah.
Dan: But then, after that.
Will: All right. So, the majority opinions by Justice Thomas, you're talking earlier about-- I thought this was a really well written and sort of clear opinion, whether you agree with it or not. I just thought it walks through this in this matter-of-fact way that by the end you think, like, "Yeah." I mean, this seems like a harsh results but what the majority says is Congress imposed these restrictions on post-conviction relief, this whole second and successive thing. They said you can only get a second and successive one for constitutional claims, not statutory claims. They said you can't get them very often. Of course, it would be weird for Congress to then say, "Oh, but anytime those restrictions get in your way, that's fine, go use this other proceeding." It'd be weird for the saving clause to be the kind of like to render effectively pointless all the restrictions on habeas Congress has passed. And so, it doesn’t.
Dan: I think that I will say that I feel Justice Thomas maybe has some particularly strong clerks this year because I feel he has his opinions-- I feel he's had some particularly strong opinions, not necessarily ones that I agree with, but I feel he's had a good term, maybe. I know you like him all the time, but is that crazy?
Will: It's not crazy. I think my sense is there's often this feature that it was hard to assign Justice Thomas' opinions in the big cases when Justice Kennedy was in the court because Justice Thomas had views that Justice Kennedy wouldn't join, but unlike some Justices, was unwilling to say things he didn't believe in majority opinions.
Dan: Yeah, but I'm talking about dissents and stuff too. I thought his Milligan dissent, might agree with it, might not, but I thought he had some compelling arguments.
Will: I will say a lot of my best students clerked for Joseph Thomas, and last term was no exception. A lot of other people's best students clerk for Joseph Thomas too. So I'm not taking all the credit. But I will say that.
Dan: Doesn't hurt. Yeah. This one reminds me a lot of a case called Bowles v. Russell, which I'm sure you've thought about plenty, which is this case from, gosh, what, 15 years ago now?
Will: Yes. It was decided when we were in law school, wasn't it?
Dan: Yeah, I think it was like maybe 2007, maybe 16 years ago, which is about the time limits for filing a notice of appeal from a civil action, and whether those are jurisdictional, in which case they can never be extended or non-jurisdictional. And in that case, it was a little complicated but in that case, basically there was a litigant who had kind of been told by the court, like, "Don't worry. You can file this later." And didn't, and then the court is, "Sorry." Even the fact that the district court said the deadline was later, you're totally out of luck. Justice Thomas wrote like a very short opinion and then was scathing dissent about how this was terrible way to people.
Will: [crosstalk] -fair.
Dan: Yeah. Which it is. It is unfair if it's the way the law works. It's like incredibly unfair because people can be tricked and then lose the chance to get any kind of appellate review. I don't know if that one came to mind while you were reading this.
Will: I mean I remember that now. I don't know, this seems--
Dan: Seems different.
Will: This seems even more straightforward in some ways. Maybe it seems a little more-- I mean it is technical, but it seems-- but yeah, I'm with you on similarities.
Dan: But maybe in both cases, the opinion does not acknowledge as much the stakes and how this is bad. It's just like, "Here's a clear answer to this procedural question," that's the end of the story.
Will: Yeah. So this one has a little bit more-- that one, Bowles, there's a little bit of a like, "Why would anybody even want this to be the rule?" going on, Whereas Jones, there's a little bit of-- part of the court is doing is capturing this story of, look, in 1996 Congress made habeas a lot more restrictive. We all know that. And the question is how much did they do that and did they either accidentally or on purpose build a loophole into what they did? And this time, if anything, the kind of like why would they do that argument is maybe on the other side of the coin. Now, we may not like what Congress did in 1996. Some Justices clearly like it, we may not like it. But the court is really-- a lot of decisions recently have been sort of really riding on that like AEDPA essentialism.
Anyway, but I think it does definitely have a version of that like these are the rules, Congress could have-- I guess there is a question like why did Congress not include new statutory rules in the 2255 exception? I think I've seen the suggestion which may be right, that it really was kind of a mistake. They were creating those restrictions on state habeas which are only about constitutional claims because get state statutory proceedings are left for the states and then somebody kind of copy-pasted those provisions over to federal without thinking about the fact that federal would also [unintelligible [00:51:18] statutory. I have no idea if that's true. But it could also be somebody thought like constitutional rules are more fundamental, whereas statute of interpretation-- Yeah.
Dan: Yeah. But either way, we do have what they said. And I think that what you said earlier does probably have to be right whether we like it or not, which is that it would make no sense to put these limitations on 2255. I think if anytime they applied, you could immediately just use the different procedural route and go through 2241, go through a habeas action. So that has to be right, I think. But I guess the circumstances in which that would be wrong would be if you thought there was a really serious constitutional question created by AEDPA. And so, you would need to resolve that by then saying basically we're going to just go through habeas to deal with those claims. Some people would believe that, but the--
Will: But the court does not believe that.
Dan: Yeah, the court doesn't believe that. Even if you do accept the argument though that AEDPA has to be doing some work, you still have this question of like, "Well, how broad or narrow is the Saving Clause?"
Will: Is there something in between? If we agree the Savings Clause, Saving Clause doesn't completely end run 2255, Justice Thomas' view is to basically almost never let it end run 2255, is there a third way even possible? This is the government's attempt, right?
Dan: Yeah. And so, the government's position--
Will: Yeah, this is peak SG.
Dan: Yeah. I found a little confusing. The government's position, as I understand it, is that you can get relief if there's an intervening Supreme Court decision and you, the defendant, are actually innocent.
Will: Yeah. Where does that come from? Could you tell?
Dan: I did not get a clear answer to that.
Will: Yeah, I think they cooked this up newly for this case. This is an issue which the government has gone back and forth, like when in the 90s government took the Justice Thomas position. Then, they flipped in the late 90s to taking the opposite position, that many lower courts had taken of letting you do this quite freely. And then, I think they flipped back during the Trump administration to taking the narrow view. And then, after cert was granted, [chuckles] they filed this funny letter to the court that was like, "We're still going to come up with an argument under which the petitioner loses, but it's not going to be the argument that we made and that prevailed below., So you might want to get one of those amici in here." They also reserved the right to file a reply brief to the amicus. So that's funny, they filed late. It's like a lot of funny.
Anyway, I think that the government's theory is inadequate or ineffective has to be judged relative to a baseline. And if the baseline isn't always being able to sue or always being able to seek relief, which is what we're rejecting, let's use the baseline of the pre-AEDPA common law of habeas. Because, like pre-AEDPA, there were still all these restrictions on when you could file. They just weren't statutory courts kind of like cooked them up. And so, they kind of distill out of the pre-AEDPA common law, which they just call at habeas, like when you could sue at common law, this kind of like you need a new rule and showing of actual innocence, which I think they think would be like the non-statutory backdrop rule.
And the thing that's not crazy about that is that 2241, the Saving Clause, was adopted before AEDPA. At the time it was adopted, it wasn't using AEDPA as the baseline because there was no AEDPA. So, it's not crazy to try to say, "Let's imagine how we would have decided this case in that world when the statute was enacted." And then, also imagine that AEDPA doesn't change, that doesn't mean any more restrictive.
Dan: Yeah, but what that would mean would be that as AEDPA restricts 2255, then the avenue under 2241 would expand.
Will: It's also interesting as a pragmatic matter, saying you need a colorable showing of actual innocence is an attempt to sort these cases along the dividing lines we were talking about earlier. It's one thing if we've said, "Oh, actually, it turns out that this tree is not really banned under the Controlled Substances Act. This is just not a crime." But it's a lot less sympathetic if it's like, "Yes, I'm a multi-time felon and nobody ever proved that I didn't know I was a multi-time felon." But come on. Does anybody really think--
Dan: Yeah.
Will: It would have held open the possibility of relief in the most sympathetic cases while letting courts deny relief in the [crosstalk] sympathetic cases, which even if it is kind of pulled out of nowhere, it's very clever SG lawyering to try to thread that needle.
Dan: And why do they want that? They want that because this administration is slightly more pro-defendant. The SG's office is generally their prosecutor's office. So, they're not always trying to let criminal defendants out of jail.
Will: Yeah, but I assume as a matter of politics, they would like to have something other than the most conservative result. I assume they would say it's not an interest in the United States to have people sitting in federal prison, taking up a bunch of resources for sentences, crimes they shouldn't have received.
Dan: And it's too bad that it's impossible for the Executive Branch to let anybody out of prison.
Will: Well, I was about to bring up Tushnet again. The funny thing is this is a case where the Executive Branch could unilaterally implement their own proposed solution.
Dan: Just commute the sentences, pardon people. I mean, whatever you want.
Will: Set up a commission. Now, if their complaint is that it would be resource intensive to review all these petitions, imagine how the district courts feel. But they've got a whole pardon office that frankly doesn't do enough. So, that is still an option. But nobody believes they're going to do that.
Dan: Yeah, because of political accountability, I guess. Biden would be criticized or--
Will: I don't even know if it's political accountability or I don't know that I doubt President Biden signed off on this brief. I'm not even sure he's aware of the argument or the issue. So, some of it's even just, this is important enough for the SG to say that this is the position of the United States. But was it important enough to actually go to the President's desk? I don't know.
Dan: Yeah.
Will: And in general, the norm now seems to not be to use the pardon power as a real crim pro power. We've had occasions where the pardon power was used on a class-wide basis, like for amnesty after the Civil War, draft dodgers after the Vietnam War, and so on. But in general, the norm is to use the pardon power on an incredibly individualized basis. Even when President Obama was sort of like trying to ramp up the use of clemency power, it was like very much to tell a specific story about why you're one of the best prisoners ever. And that's just very much become the norm.
Dan: Yeah. Okay, so that would have been one position. And let me say one overarching thing and then you say the thing you're saying. Which is that in terms of the discourse about this case, which I try to avoid, but some of it seeps into my consciousness from Twitter. And this was kind of some of which was happening while I was on vacation and before, and I have dug into the case a little bit later. The discourse was this is a super, super liberals versus conservatives case. Like, there's this really strong argument on the liberal side. But then, you get to it and actually it's not quite like that because Justices Sotomayor and Kagan are in kind of a weird spot. All the conservatives join Justice Thomas' opinion and there's a really lengthy dissent by Justice Jackson. But then, you have this super short opinion by Justice Sotomayor joined by Justice Kagan, which I've read like four times and I actually still don't totally know what it's saying. [crosstalk]
Will: They explicitly say, "We're on team SG."
Dan: Yeah.
Will: But then even weirder, the SG wanted an affirmance. The SG said, "We have this super narrow theory and this doesn't qualify." And they say, "We have the same super narrow theory, and we would remand." And that kind of makes sense, in the sense that the SG's theory, "Let's call it the most plausible theory that is not the harshest." And so, you see why the SG puts it forward. They would like to not reach the harshest result. They know they have no chance of just coming in with like the Jackson approach. May not even just feel like they can make that argument with a straight face. So, this is the best they can do. And Sotomayor and Kagan would like to not reach the harshest result they can. And then, they're given the SG's theory. The SG is trying to get the court to adopt their theory. So, they emphasize its harshness by saying you should affirm. And Sotomayor and Kagan are trying to emphasize how much they're trying to be good guys.
Dan: Yeah, but it's a very short opinion. They explain why basically very briefly that the SG they say-- in this case petitioner says he is that prisoner, so prisoner seeking to make a collateral attack, who is innocent under an intervening decision and that he is that mismatch that he can't bring this under 2255. But the Court of Appeals never considered that question laboring under mistaken view of the Saving Clause that like the majority is assigned almost no role. So, we would remand. So, what would the remand analysis look like? It would look at not just whether the government proved or failed to prove this element, but whether the defendant actually didn't know. Like, how would you--
Will: Whether you can make a colorable showing that he didn't know. So, he would submit some testimony that says something.
Dan: Like, "Somebody told me that I could have a gun," or "Somebody told me I wasn't a felon," or something like that.
Will: Yeah. "Somebody told me that I was in jail for enhanced misdemeanors, which I thought was a special-- I don't know. "I was doing a lot of drugs, I didn't really understand where I was or what was happening." I don't know. "I suffer long-term memory loss." I doubt that they think anything will happen on remand in this case.
Dan: Yeah.
Will: Just a drafting question is, this goes to-- they have argument, they go to conference, they say, "Okay, we have six votes. Clarence, you'll write the majority." Do you think they waited for Justice Jackson's dissent? Justice Jackson said to them, "I'll write a dissent." And they said, "Okay, we'll read it." And then, when they read it, they were like, "Argh." [crosstalk] Yeah. Or do you think they even thought from the beginning like, "No, let's--"
Dan: I don't know. I mean, I just wonder why it's not a longer opinion, at least trying to defend and lay out the SG's view and respond a little bit more to the majorities. It's just so brief.
Will: Yeah. As I was thinking, if it came late in the day, it's like you're waiting and waiting for the dissent, and then you read it and you're like, "We don't buy this," then you may not have a lot of time.
Dan: Yeah.
Will: The other option is just you could not want to undercut her dissent. You can think her dissent is going to make this seem really unfair. We like that she's going to make the majority look bad [chuckles] even though we can't actually sign off on it because we don't totally agree with it. If they write a long dissent, that's different. That sort of helps the majority because the majority can say, "Look, the dissenters think we're wrong, but even they can't even agree amongst themselves what the statute means." So, you may want that, I'm not sure.
Dan: Yeah.
Will: Because they even cite her dissent in the first sentence. Not to say it's right, but as Justice Jackson explains--
Dan: [crosstalk] -disturbing results.
Will: And I don't know, maybe a little bit of deference to the newest member of the team.
Dan: There's no teams. There's no teams, Will.
Will: Good. The newest member of the court--
Dan: What's the court-- they're just judges trying to do their level best.
Will: Level best, exactly. I was at-- the court is the team, Dan. The court is the team.
[chuckles]
Dan: Teamwork makes the dream work.
Will: So, I thought that was interesting, but I am interested about the discourse. So, I think two pieces of the attention this opinion has received that were interesting. One, there is this court appointed amici, Morgan Ratner, relatively young Supreme Court advocate, did some time in the SG's office helping build the practice at Sullivan & Cromwell, and she won. And it's rare for the court-appointed amici to win. Usually, the court appoints the amicus to defend the defensible result, and then they all rule against you and say--
Dan: There's been a few examples of--
Will: There have been a few--[crosstalk]
Dan: Evan Young.
Will: No, but I'm just saying I think the win rate is low. And here she won. I think there was congratulations to her, went out on Twitter. And then, the--[crosstalk]
Dan: Friend of the show, Jeff Wall, gave her congratulations and then--
Will: Rightly so. The Twitter reaction, "You shouldn't be congratulated for your evil work, keeping people in prison," etc. Is that fair?
Dan: Yeah, I've wondered about this. I thought about this, which is that I think it would be really cool to be in the position of getting invited to be one of these amici. This would probably not be the one I would be excited about doing, because the majority's opinion does-- even if you think that maybe it's not a big deal for this defendant-- I mean, the statute here is really, really harsh. That's a substantive problem with the statute. The sentence is insanely long, and maybe the result wouldn't have been different under the rate statute. But you are at least countenancing some really disturbing results under the majority's view. You were convicted under a statute that everyone in the room can agree, like, five years from now, you shouldn't have been convicted of. It's not a crime. You're innocent of that crime, as a technical matter. You didn't do the thing that Congress has criminalized.
Will: You may have done the thing, we just didn't prove you did the thing.
Dan: No, but I'm saying there will be examples where the person didn't do the thing. Your example of, you possessed the thing that wasn't a drug.
Will: Yes.
Dan: There will be cases like that.
Will: Yes.
Dan: And the answer is, "Nope, you spend the rest of your life in prison."
Will: And it's funny because we often respond to that criticism, I think, as lawyers, by saying, "But I have a client and somebody's going to open up my client's interest." But here, there's no client. Here, there's no person other than the panel of the 8th Circuit and the 10th Circuit, 11th Circuit that's fighting for this result. Does that make it, I don't know-- Let me put this way, if you'd gotten the call, Dan, would you have taken the appointment or would you have said, "Sorry, you can't do it"?
Dan: Yeah, I struggle with that a little bit. And I guess I don't have answer for that right now.
Will: Really?
Dan: I don't know. I think that it performs an important role, in general. I think that there are times when a court is making a rule that's going to affect the law forever. And you don't want parties to be able to manipulate the court by being able to strategically give into stuff. You can imagine a world where-- if the rule is anytime the government says it agrees with the other side, that's what the court has to say and that becomes binding precedent. That can be manipulated by different administrations. Like you could say, "Okay, Trump administration could say any federal gun law is unconstitutional by just immediately agreeing with every challenger." Court has to go along with that. Or, the Obama administration says any number of other things are unconstitutional. Federal law restricting partial birth abortion is unconstitutional because anytime someone sues about that, you immediately concede. So, there is an important role here, but it's a tough thing to be responsible for. And it was interesting exactly how much vitriol there was. Jeff's tweet, he got, as the kids say, ratioed 11 retweets and 180 quote tweets kind of trying to go for the--
Will: Are quote tweets bad?
Dan: Quote tweets, they're not all bad, but if you see like 11 retweets and 180 quote tweets, that is a signal that maybe people are going for the dunks and they were going for the dunks on him. Basically, just being like-- in a criticism, being like, we shouldn't professionally honor people who choose to take on these responsibilities of pursuing these pretty terrible results. It is like a very troubling result to say that there will be some people who are definitely innocent, who just get nothing, who just spend forever in prison. And this is a larger criticism I have about conservatives in this case, which is that there is no shortage of say, like Justice Gorsuch opinions talking about how critically important it is, liberty and everyone innocence and people juries should have to find all these facts.
I mean, just really a lot of concern for separation of powers and not putting people in prison for stuff that Congress didn't make a crime. And they don't care. It seems to be completely there's no hand wringing, there's no acknowledgement that this is a terrible result and that it seems to me to set off all those same alarms that a lot of the other stuff that Justice Gorsuch seems really concerned about in other cases. It just seems it doesn't register. I just think that's strange.
Will: Well, so you've tracked this, but Justice Gorsuch is an important cause of this opinion in another way.
Dan: Yeah.
Will: Which is that for a decade, two decades, a decade, maybe, the lower courts were kind of on the consensus of the Jackson position.
Dan: And he disagreed with that.
Will: Right. He broke the streak. In 2011, there's a 10th Circuit case, Prost v. Anderson, cited by Gorsuch circuit judge, joined by some, not all the-- Stephanie Seymour who's not particularly conservative 10th Circuit judge at the time, but he's the one to say, "No, 2241 is adequate to test," or, "2255 is adequate to test the legality or detention. It's true that you may not have thought of the answer at the time, but a student who takes a law school exam and doesn't think of all the issues that the presser wants to test, it's still adequate to test their knowledge of the law."
Dan: Yeah, just failed.
Will: But has more. I mean, it's interesting to compare the opinions. His opinion as a lower court judge, I think has a little bit more of a sense of why you do this. I mean, it's a lot of the stuff that I'm sure people roll their eyes at about the importance of finality. But I do think there is this narrative not on display in the majority opinion [unintelligible [01:10:18], but very much on display in the classic article by Paul Bator, which Gorsuch cites in the Henry Friendly article, people cite that sort of like, maybe it's not the best thing for liberty or the separation of powers to spend so much time, reopening and relitigating the cases of people who already have been through the criminal process once, and we ought to spend more time on other things.
Dan: Yeah. And I don't think that's crazy in broad strokes, but to not even have any avenue for a narrow set of people for whom everyone be like, "Yeah, that person's innocent."
Will: Yeah. I mean, that's what the SG was trying to sell, was trying to say, "You can have your finality and your liberty if you have a narrow avenue." Now, of course, everybody's going to allege that they can fit into the narrow exception. I'm with you. I mean, I think there is this tension between finality and liberty. Tension that is not acknowledged here, although even it's in Article IV. Now, again, maybe the answer is also, the president can fix this easily, and that's where you go for this kind of thing.
Dan: Yeah. And that is one of the strange things about cases where the government is confessing error or saying that maybe defendant is part right, they really could fix it. And it seems like they want the court to solve the problem, that it could solve itself.
Will: I have one more substantive question for you and one more discourse question.
Dan: Okay.
Will: The substantive question is, what do you think the Saving Clause is for under the majority's theory if it's not for this? They seem to think their examples are, well, sometimes the original court of conviction is gone, [chuckles] like it was a territorial court martial. Like, we dissolved the District of Alaska court. And sometimes the other court was really far away, and it was before the interstate highway system was built.
Dan: They didn't have records, or they couldn't get the records there.
Will: Yeah, but those are both not really concerns anymore.
Dan: Yeah.
Will: So, are they basically saying it's like a vestigial organ that doesn't do anything anymore? That seems awkward.
Dan: I mean, I don't think that they're saying there never could be a circumstance where that would be true. I mean, there could be other situations where, I don't know-- maybe there's some weather problem and you can't get something to the original court? Who knows?
Will: Yeah. And who decides that? I was trying to figure that out because this idea of transporting, is this an end run? Can the government say, "Oh, gee, we don't really want to transfer you over to the court of conviction of the next state, so we're fine with you filing here." By depriving the prison system of transportation funds, could they effectively make 2241 more available?
Dan: Yeah.
Will: I found that weird. I mean, there's this footnote of the opinion that it really is funny. It's like, "Well, this is before the interstate highway systems, so transportation was a little harder back then," which is maybe reserving the right to say, now you just got to put them in an Uber and send them to the next-- I guess you don't transport prisoners in Uber.
Dan: Yeah, I don't even know if you I mean, you can just file one of these motions without being physically present, I assume.
Will: I assume-- that was also weird. Anyway, I found that a whole-- the majority--
Dan: It seems like the two possibilities are both seem kind of weird. It's anytime 2255 doesn't give you an avenue, which means AEDPA doesn't really do any work other than just kind of shifting stuff around, or it means that Saving Clause has almost no application. Which also seems weird.
Will: Well, this is the magic of the SG made-up intermediate position. You see why it had some appeal.
Dan: Yeah.
Will: All right, the other discourse question is about law school clinics.
Dan: Okay.
Will: So, this cert petition was filed successfully by the UVA Supreme Court Clinic, and the case was argued by, I think, Dan Ortiz, who runs that clinic and I also saw a lot of discourse leveled there. Once people learned that Morgan Ratner wasn't going to be fired or put in a hair shirt or whatever, people sort of trained their fire at, "Well, why did they even bring this case?" In most circuits, we had good law. And now, all those people lost their rights and cases that will have egregious consequences. And this one maybe was even a bad vehicle because of the fact they're unsympathetic. And so, not only should the amica not have taken the court's call, but the clinic should have said, "Pound sand, file IFP." Do you buy that?
Dan: Yeah, that's a tough one. I mean there are situations where you see clinics doing something that are kind of obviously counterproductive for the interests that they're trying to promote, like filing amicus briefs in opposition to certiorari, which are kind of [Will laughs] like the least useful documents--
Will: [crosstalk] -secretly wanted to be granted.
Dan: Yeah, unless you secretly want it. This isn't that. I mean this is a case where the petitioner is a criminal defendant who, if his position is legally correct, is getting screwed, right?
Will: Yeah.
Dan: And actually got--
Will: But he [crosstalk] take the case. I don't think they represented him-- [crosstalk]
Dan: Yes, I agree, but you're not trying to get the government's case granted so that you can just get an argument. I mean, this is a client, this is a defendant who had the bad result and deserves to have the court consider whether he's entitled to relief pretty closely and actually got the SG to say he should get out, but helped push things along in a way that maybe could have ultimately been helpful, depending on how far the court was willing to go past what the SG did. And the court could have taken the case no matter what. [crosstalk]
Will: One version of the critique is like the loss was inevitable. This is the MAGA court. You should have known they were going to do this. Do you buy that? I don't buy it. This is a predictable result, but if you told me-- I mean, look, we didn't predict Allen v. Milligan or Moore versus Harper. If you told me actually there are going to be five votes for the SG position, like think Roberts, Kavanaugh.
Dan: Yeah. I don't think that would have been crazy. I mean, you would have known based on lower court stuff where Gorsuch was going to be, but I don't think it was like such a foregone conclusion.
Will: One of the other fears is maybe Supreme Court clinics are corrupted by this. He thinks like, "Well, we need cases, we need arguments." And somebody shows up and says, "Hey, I want to roll the dice. And if it comes up one, I get out of prison. If it comes up five and six, everybody else goes to prison. Will you help me roll the dice?"
Dan: But also, are we taking for granted that the clinic exists to produce certain substantive outcomes? Or does the clinic exist to provide free legal representation to people that might need it and on the way to doing so, also give educational opportunities to students? I guess, why are we assuming that these clinics are necessarily--
Will: On the left?
Dan: Yeah.
Will: Aren't they on the left?
Dan: I mean in practice but that's not their stated-- I don't know what the mission statement of the Virginia Supreme Court clinic is, but I assume it's not, we're a decarceral clinic. It's like we're a Supreme Court clinic.
Will: Right. But they don't take-- I guess I could be wrong. Some police officers denied qualified immunity and wants them to help him expand the doctrine of qualified immunity. I assume they don't take those cases.
Dan: I don't know. I mean, if they're offered the arguments, I mean, I'm not sure necessarily would, I'm not sure that would be, like, inconsistent with their founding documents. I mean, in practical terms, maybe the students would be too mad.
Will: Yeah. No, I think you're right. Maybe that's part of the discourse. Maybe people are just trying to say it's bad these clinics are not more of an ideological--
Dan: But it's producing a result that seems really bad in some nontrivial set of cases, even if it's not necessarily one that would make a difference here.
Will: Yeah.
Dan: If we could turn the clock back.
Will: Yeah. I've heard rumors that there are other Supreme Court clinics that are a little more either cause driven or choosy or something about what they take. So, that also could be part of it. I don't know if that happened in this case. Unsurprisingly to you maybe, I'm not bothered by any of this. I think it was fine for clinic to take their client, I think it was fine for the amici to take the call, but I've been surprised how much--
Dan: It's fine to keep innocent people in prison. You think that.
Will: No, the precedent should let them out. I'm not sure whether Marcus Deangelo Jones is one of them, but the precedent should let them out. Maybe Congress should even amend the statute.
Dan: I'll hold my breath on that one. They'll do that after they pass Supreme Court ethics reform.
Will: [laughs]
Dan: Second Judiciary Committee just pass that out of committee.
Will: Maybe there'll be one bill, like a severability rule, Supreme Court ethics reform, and if this is unconstitutional, then everybody gets out of prison.
Dan: [laughs] I like that. So, very harsh opinion by Justice Thomas. Very short, kind of sparse dissent by Justices Sotomayor and Kagan. And then, a very lengthy-- and by the way, yeah, I think I said this incorrectly. This is a joint dissent by Sotomayor and Kagan.
Will: Yeah.
Dan: It's not like one and the other joins it.
Will: Yeah.
Dan: Is that weird? It doesn't happen as often.
Will: Yeah. That does make me think it was put together at the last minute a little bit more.
Dan: And like, each one wrote two of the four paragraphs. Really had to split up the workload on that.
Will: [laughs]
Dan: Yeah. But then a very long, long opinion by Justice Jackson.
Will: The opinion reads like Justice Kagan, by the way, [crosstalk] Sotomayor.
Dan: Yeah, not the Jackson opinion, the concurrence. But we have a 39-page dissent by Justice Jackson. I didn't find this a very strong opinion, the dissent.
Will: Very long opinion.
Dan: It's very long. I didn't find it persuasive, I think I'd say, even though I'm coming into this kind of repelled by the conservative position here, and her view seems to be-- she spends a huge amount of time focusing on something that the majority says. The majority says, "Look, 2255 says you only get to make a second or successive motion under these certain circumstances. The negative inference is that is, you don't get to do it or other stuff. Therefore, you're out of luck." And she kind of takes that negative inference language and kind of spends many pages going off in it and sort of saying-- I think her view is basically like, "Well, Congress just didn't think about this. And so therefore, we shouldn't read this--" even though maybe textually, that might suggest that we shouldn't think of it as precluding your ability to file, actually to file a kind of motion that would let you do this, even under 2255, is that right?
Will: I don't know which of the textualism rules was on. I mean, you could read her as saying, "As a textualist matter, Congress restricted 2255," and then didn't say, "Also, we're restricting this other statute that we're not talking about.'" And so she could be the formalist saying it's the majority, and she calls them entirely atextual. She's in some way trying to have that the high ground of, like also, I think I said earlier when I mentioned the Gorsuch's opinion in Prost v. Anderson that he was joined by Judge Seymour, that was wrong. She actually had a separate opinion disagreeing with him. So, I take that back. I just noticed the cite to it and just with Jackson's dissent. Oops.
I found interesting and part of what makes me in so long is after she tries to fight the merits, actual question, she kind of turns to general-- like a lot of general habeas talk. She's relitigates a little bit the battle with the Gorsuch and Thomas have had these narrowing habeas opinions recently, and Brown v. Davenport in another case, and she says, but wait, Lee Kovarsky and Jonathan Siegel say they're getting the history wrong. She cites a lot of habeas scholars who are critical of the general direction the court's going, even though it's currently settled precedent that the Constitution and the Suspension Clause don't care what we do to this kind of habeas. She says, "Well, I don't want to give that up." Cites Steve [unintelligible [01:22:57] and Paul Halliday and other folks. So, I felt like the back half was doing something different. It was like laying down some kind of a marker. "There's a war on habeas and I'm on the side of habeas."
Dan: Yeah.
Will: I don't know. Is that more effective? That's at least doing something interesting?
Dan: Yeah, I think so. I don't think she's totally unfair that like-- you're right. That the conservatives, like Justice Gorsuch, are taking the position, I think believe that it's like we're wasting too much time on this stuff. Everyone get their fair shot of the apple, have the right procedures, go through the direct appellate process, but then after that point, enough is enough.
Will: Yeah. And I think they also think they have a legal narrative. Until the Warren court or the Brown v. Allen, until some fall from grace, which is actually a little difficult to locate, we didn't used to do it this way. We used to believe in finality, and then we started making all these exceptions, and AEDPO was actually getting us back on track and was reigning in the activist court. And so, I think she's fighting for that narrative as well. That was a good position for her to be taking. I guess I'll say that. I don't think he was trying to do so much that it didn't always connect the dots in this compelling narrative that led you to close the opinion and shout, "For habeas." [chuckles] But she'll get there.
Dan: Yeah, she's got some harsh language. She says on page 29, responding to something the majority says, where the majority says-- a lot of her position is saying, "Look, we need a clear statement to kind of displace habeas." And she has all these reasons why she thinks that still applies, and she responds to something the majority says about why that doesn't apply. She just says, "This is nonsense," which I think I don't feel like you see something quite that strong in most Supreme Court dissents. Right?
Will: Yeah.
Dan: That was pretty bold.
Will: That's fair. Would you call this dissent Scaliaesque?
Dan: I would call it scathing, that doesn't really like-- Scaliaesque, I didn't find it as persuasive as some Scalia dissents, where they just really find all these problems with majority. And in part because I sort of felt like the dissent took too long to kind of explain what its view was.
Will: Yeah. I guess there are different theories of legal writing. And some people are of the "go for the jugular" theory of legal writing. You zero in on the most vulnerable part of the majority opinion, and you rip it out and maybe stop there. And some people are kind of in the "more is more" category. So you fight them on the beaches and you fight them in the-- so you take aim on the Statute of Interpretation and on the history and on the Constitution, and then you have-- you do it in 39 pages with 26 footnotes. And yeah, maybe in this case, that latter approach. I mean, currently working on an article that's 125 pages long with close to 500 footnotes. So, I'm definitely not one to talk.
Dan: I'm more of the first group, kind of like less is more at a certain point at least.
Will: Yeah. No, you're very sharp. You're always trying to get my jugular.
Dan: Do I get it?
Will: The readers-- I mean, listeners will have to decide. Any more about this one?
Dan: I don't think so. But yeah--
Will: It's a tough day.
Dan: It's a tough pill to swallow for some defendants. It's a troubling result, that's where I land on it.
Will: It's probably the reason Supreme Court approval ratings sank-- [crosstalk]
Dan: I'd say this one is-- I think it got a lot of Twitter reaction, but yeah, definitely, I think that I agree with the implicit thing you're saying that it's not getting as much attention as--
Will: I think I told you this when I was clerking, I used to walk into the office by this group of protesters who had signs that said, "Repeal the Feres Doctrine."
Dan: Oh.
[chuckles]
Will: Which is like a fed court's immunity doctrine.
Dan: Those were like people military families or something?
Will: Yeah, it actually does have some-- like the Feres Doctrine has some sort of currency. So I hope there are groups of protesters somewhere, "Overturn Jones v. Hendrix."
Dan: What? Fed courts protesters show up outside your office?
Will: It's the qualified immunity protesters.
Dan: Okay. They don't need to protest you. They're there--[crosstalk]
Will: Oh, the people against-- Yeah, the San Diego Union Tribune just published this opinion piece about how qualified immunity gets a bad rap and all these lies-- Qualified immunity only protects reasonable actions, so it's reasonable.
Dan: There we go. Okay. So, going on for a long time and maybe let's spend a little bit of time talking about other one, a case that we talked about earlier. So maybe we don't need to talk about it for quite as long. Moore v. Harper.
Will: Yeah.
Dan: And I alluded to this earlier when I said this is one of the two cases about the kind of directly implicating the balance of political power where the court doesn't do the thing that is the kind of pro Republican Party thing. You sounded like you were going to push back on that and so maybe let's set the case up and then I'll give you the opportunity to push back and then we can talk more about it.
So, devoted listeners, few of you, may recall this is the case about the so-called Independent State Legislature doctrine, so-called whether it should be treated as a doctrine or not. And basically, that doctrine or that question involving when legislatures are doing districting and creating other kind of rules governing federal congressional elections, can state courts superintendent that and does the state constitution potentially restrict what they can do? Or does the constitution sort of say, "Well, we are assigning this power to the legislature and so the legislature gets to do whatever it wants, not bound by what state courts about state constitutional law."
Will: Yeah. And so huge stakes for partisan gerrymandering because the Supreme Court has said federal courts won't supervise partisan gerrymandering. So, at a first level, it seems like either the state courts will supervise it or the Supreme Court will also tell them they can't supervise it and then we have lots more partisan gerrymandering. That's the setup.
Dan: Yeah. And so going into it, I think a lot of people, there was a range of potential outcomes and imagining the most extreme outcomes that could suggest that states can't do anything to police the fairness of the state electoral process.
Will: Right. And not imagine in a vacuum, because there were several cases during the 2020 election that posed these questions and several separate opinions by various justices saying we should take this theory pretty seriously. And then the court grants cert in this case. And so, this seems like one of those grants to reverse.
Dan: Yeah. So, the idea being that if the kind of extreme position would win, I mean, state courts can't say, "You have to provide absentee balloting." Like all sorts of things where state courts might want to say that the legislature is violating the state constitution.
Will: Right, okay. So then, what are the partisan consequences of this case? First-level thinking is this was a Republican gerrymander by the Republican legislature, which the North Carolina Supreme Court tried to stop. And so obviously, the ISL, Independent State Legislature side is the Republican side. And that sort of matches up with the lawyering. Like, the ISL side is represented by Cooper, Kirk. The anti-side is represented by Neil Katyal, generally seen as a more Democrat.
Dan: Fairly.
Will: [laughs] As a Democratic side lawyer.
Dan: #Resistance.
Will: Yeah. Seems like the lineup. And you might even then add, and from what we can tell at the moment in the past 10, 20 years, it does seem like Republicans maybe gerrymander more, at least in the House than Democrats. There are some germanders on both sides. But gerrymandering seems like a Republican issue and anti-gerrymandering seems like a Democratic issue at the moment.
Dan: I mean, in New York, the New York state courts overturned a pro Democratic gerrymandering.
Will: Well, good. So, that's the next level. And I regret that David Weisbach, my colleague, who first pointed this out to me, and I never wrote this up while this was pending, but the next level is, but what really is the partisan impact depends on both who gerrymanders more and which courts stop gerrymanders more. And here's the thing, is Republican Supreme Courts don't stop gerrymanders. Like whereas Democratic Supreme Courts sometimes stop gerrymanders. So, the New York legislature gerrymanders, and the New York courts stop it. The California courts might stop some California gerrymanders. So, there are some the ISL doctrine is going to liberate the gerrymanders in New York and California. Whereas there are very few states where the Republican gerrymanders get stopped. The Texas legislature gerrymanders, but the Texas Supreme Courts let them. It's only the purple states like Wisconsin, North Carolina, Ohio, where there's any margin and those are actually just a much smaller set.
So, if you zoom out to the full institutional picture, the ISL position probably would have picked up Democratic House seats on net, at least on the sort of back of the envelope math that David Weisbach and I did. So, thinking about the full system, that might be wrong.
Dan: And you guys are only people who noted this, so why are all the conservatives coming in?
Will: Maybe we're wrong.
Dan: Because, I mean, this argument, one of the places where some version of this argument gets some traction is back in Bush v. Gore, where Republican lawyers are trying to figure out a way to stop what the Democratic State Supreme Court is doing. Right?
Will: Right. So now, you can go bigger, could just be more ignorant. But I think there is then the third-level question where we might be wrong after all, or we might just really have a hard time predicting the partisan effect, which is that this question goes beyond gerrymandering. This question has some relationship to the question of state legislatures unilaterally selecting presidential candidates rather than having elections. There is this fearmongering that this would implicate the Trump issue of whether you could, post election, cancel the Biden vote and replace the Republican vote, you can't do that because of the Electoral Count Act. But before the election, no state's done this since 1876, but before the election, the federal constitution would let Wisconsin say, "We've decided not to have a vote for president. We've decided to just pick Trump." I assume that the Wisconsin Supreme Court would stop them and say, "As a matter of Wisconsin constitutional law, you can't do that because there's a right to vote and under the Wisconsin Constitution," and so on. It implicates that. But that's like a far tail issue. It's hard to predict how realistic that is.
And it does also implicate the more like the absentee ballot questions or the polling place questions. Even just like the case of the statute says the polls close at 8:00 and then some state judge in St. Louis says, "Yeah, but the lines are really long, so I'm leaving them up until 10:00 today because the Missouri Constitution's right to vote means that you have to have a reasonable opportunity to vote." Like a strong ISL might even stop that. And those rulings are harder to quantify. Maybe they on average help Democrats because crowded polling places are in cities where there are more blue voters, I'm not sure. Yeah, so maybe there's somebody at the DNC who really did the math.
Dan: What dimension chess are we playing now? I think we started out two and then we went up to three and then went up to four. I think we're like, I don't know, pretty high. So, I don't know.
Will: I'm not sure which side is right or which side-- who the consequences help, but I do think the standard account does not have enough dimensions in their chess.
Dan: Yeah. So basically, you're bringing back [audio cut] gamed it out and it's like actually, this is going to help Republicans.
Will: The most cynical explanation. Anyway, one other thing I was going to mention. You mentioned earlier this question of like Independent State Legislature being a so-called doctrine.
Dan: Mm-hmm.
Will: I just wanted to shout out this article by a friend of the show and rare guest on the show, Alli Orr Larsen has a paper called Becoming a Doctrine about the major questions doctrine, the Independent State Legislature doctrine. How do we decide when stuff becomes a doctrine and goes through some historical examples, some interesting actually discussion about the culture of these names. And what is at stake in becoming a doctrine and recommend that to people interested in this kind of thing.
Dan: Okay. Are we going to agree this is not a doctrine now? Or at least to the extent there is doctrine there, it's going to be very narrow or narrower?
Will: I think the court rejected the doctrine. There is no Independent Legislature Doctrine.
Dan: Are you sure? Isn't there a little bit?
Will: There's a thing, but it's not the--
Dan: Okay. It's not the Independent State Legislature.
Will: It's not the doctrine we're looking for.
Dan: Well, it's like a 10th of the doctrine people are looking for.
Will: It's the ordinary judicial review doctrine.
Dan: Basically, we'll cut to the chase and we'll go back. So, there's this weird jurisdictional mootness thing, court gets past, that reaches the merits. Court says ordinary state constitutional law and stuff, courts can still exercise judicial review and say that the legislature is not following the state constitution. Fine. But then, there is some scope for the Supreme Court or maybe at the federal, lower federal courts, I guess depending on the procedural posture, to say that what the state courts are doing is so far afield that they are usurping on the legislative authority. That's sort of what I was saying, isn't that like a little bit?
Will: Well, that's what I'm trying to clarify. The Independent State Legislature doctrine holds that the state legislature is independent of state law. The idea is, they are specially delegated power by the federal elections clause. They have this federal function and they're independent and the court rejects that. Court says, "No, state legislatures are not independent of state law. They act pursuant to the state constitution." Now, what the court says is that said, it is still the legislature that has to act, not somebody else.
Dan: Yeah.
Will: And so, we do have to keep an eye. It's the non-Independent State Legislature doctrine. It's just the state legislature doctrine.
Dan: They don't even go as far as the kind of Baude-McConnell view. Well, you said the courts can never draft the districts, right?
Will: I think the core thing they say is very much consistent with the core point we make, which is, we called it, I still recommend this name, the constitutional state legislature doctrine. So, state legislatures are constrained by their constitution, but it is still the legislature. So, there's nothing fishy about engaging in ordinary judicial review to make sure the state constitution is complying is concerning state legislature, but at some point, some kinds of decisions could involve the state court usurping the legislature's functions.
One of the things we said in that article, which is not cited by the court and presumably not read by the court, and it's opinion by the Chief Justice. So, it of course, does not cite our article. One of the things that we said is one example of that would be, if a state court decision was so wrong that the only real interpretation is that they're usurping the state legislature's function and the court reserves that possibility and analogizes it to these other areas of law we've talked about, like criminal law, where the state courts change criminal law so much that we say it's actually an ex post facto law taking clause, Due Process Clause, etc.
Now, we also said in our article that another example of violating this principle would be if the state court were to draw their own maps. The court says in a footnote, there's some additional questions about the remedial maps here that we don't have to get into in light of the procedural posture of the case. So, I think it is officially reserved whether or not the other implication of the Baude-McConnell thesis is correct. But if you read the opinion, it's obvious that we're correct. The court says is, "State courts can engage in ordinary judicial review." And what we said in our article was exactly that. Like, "If state courts decide something is unconstitutional, they can engage in ordinary favorability analysis to figure out what to do instead, but they can't do something not ordinary." Just like in a normal judicial review case when the statute is unconstitutional, the court doesn't just say, "All right, you have a year to draft a new statute. If you don't, we're going to draft one." There's just some severability principle they apply. I think that's very much where the court would go in a maps case but they don't say that.
Dan: Okay, well, that's talking about the merits, and we have this dissent from Justice Thomas who does talk about the merits but doesn't spend a ton of time on them. It's not like the four-paragraph Sotomayor, Kagan opinion in the last case, but it's shorter. Would you describe what his view on the merits as kind of the more doctrinaire, ISL doctrine view? And we have a short concurrence by Justice Kavanaugh, who talks a bit more about the question of when does the court go so far afield, a state court, that it's creating a problem? I don't think really advances the ball that much further than the majority.
Will: I mean, this is just debate about what the standard is, and it's very much, and Justice Kavanaugh oral argument kept saying, "Isn't it the Bush v. Gore rank was concurrent? Isn't that the correct standard?" And Justice Kagan kept saying, "Aren't the following five standards all basically the same thing?" And the majority says, "There are a lot of standards that might be the same thing that might not." So, it's very much just-- yeah.
Dan: Yeah. And Justice Kavanaugh says, "I don't think there's that much of a difference." All three standards convey essentially the same point. Federal court review of a state court's interpretation of state law in a federal election case should be deferential, but deference is not abdication. I would adopt Chief Justice Rehnquist's straightforward standard. But it is interesting that as he flags the kind of conservative challengers or whatever you want to call them, or the defendants, the conservative litigants, they did not make that argument. They disclaimed that argument. They tried to kind of resurrect it, but they sort of said, "We're accepting that what the state court said is a correct view of state constitutional law," nonetheless.
Will: They went big. They wanted a rule that it didn't matter-- like state constitutional law didn't apply.
Dan: Yeah. Which is another one of these examples which I think we've seen, and I think we're going to continue to see where you have these conservative litigants from conservative states taking huge swings and sometimes, they'll connect, but sometimes the court's going to get annoyed. Which is like, "Hey, you came in and you took the swing, and you didn't give us another out, another way to--" and that doesn't always work.
Will: Yeah, I don't read the tone this time as annoyed, if they lose.
Dan: No.
Will: If anything, I read the tone as a little relieved. The majority is like, "On your core question, we disagree with you." Now, on our backup theory, what happens? Well, luckily, we don't have to tell you because they expressly waived this argument. So, if anything, it didn't work out well for them.
Dan: It's not as peeved as the tone in the ICWA case was.
Will: Well, I think it's very different. In the ICWA case, part of the complaint was we can't even tell if you're taking a big swing. Like, you're coming in here with this new theory that's inconsistent with all our precedents. And one of the complaints Justice Barrett had is, "You won't even tell us if you want to overrule them or not." That would at least be a theory. And here, I think the challengers definitely had a theory. Court didn't buy theory, just a story about the theory, but the court didn't buy the theory. But still, I totally agree with you that it's interesting there are these X anti-choices about how to frame your case, and there are costs and benefits to framing your case as taking the big swing. Sometimes, you take a big swing if you want to get a homerun, but sometimes you strike out.
Dan: But we do have this jurisdictional thing which we talked about.
Will: Yes.
Dan: Which is, you had the state court decision saying that the state legislature had violated the state constitution in the way it drew the districts. And then, we have an election that happens, and the membership on the state Supreme Court changes, and we have this follow-up decision that purports to do something with respect to the earlier decision. And what exactly that something is, is weird. And that possibly moots the case. We talked about this-- you had a-- what struck me as a very persuasive view about it, which was everyone is saying, did what the state court do take away the Supreme Court's jurisdiction? And your view was, "Well, is it clear that the state court had jurisdiction to do anything?" Because normally, once the court grants cert, the jurisdictional ball moves from the state court's court to the Supreme Court's court. And so, at that point, normally a lower court doesn't have jurisdiction to continue messing with the judgment that's now being actively reviewed by a higher court.
Will: Right.
Dan: The court here doesn't really-- that's not the path that they go down.
Will: Yeah, I think for two reasons. So, one, there's an earlier case called Coinbase decided this term that implicates this rule, in the context of arbitration, it's just like the ordinary version, like while the blah, blah, blah is pending for the Court of Appeals, can the district court order this? And the court splits 5-4 on that. And there's actually an interesting back and forth between the Justices about, "Is this the ordinary rule or not? And what is the ordinary rule?" So, I think there's some dust around what even is the background rule. What the majority does is it basically construes the North Carolina Supreme Court not to have violated this rule. So, it says, in North Carolina, in the proceedings below, at oral argument, the challengers who were trying to reopen the previous case, said, "We want you to reopen to overrule the precedent that's under review by the Supreme Court, but not to reopen the judgment," which was thought to walk that line adequately. It's a little weird because it's actually in the same case, but also as a matter of state law, the time to reopen the judgment had long passed. So, that's what they asked the North Carolina Supreme Court to do.
North Carolina Supreme Court actually was not specific what it was doing. It didn't repeat that distinction particularly, but Roberts does. So, I think what he's doing is construing the state court not to have done the thing that might raise these questions. He doesn't say that's what he's doing. He just makes it sound like, "Oh, that's obviously what they did. But that gets around the problem a little bit." Although then, it's extra weird because now why is this case not moot? For all cases going forward in North Carolina, we have already resolved this issue. These gerrymandering claims are not going to succeed. The reason it's not moot is, well, in this case there's this judgment saying that they can't do that. But of course, even for these parties going forward, since we don't have the new maps, you can do it.
Dan: What is that judgment worth? What does it mean for that to continue to exist?
Will: Right. And Justice Thomas, another great Thomas line. Justice Thomas, page 9, "This case is over no matter what becomes of the empty husk of Harper I's interlocutory judgment." There's this empty husk. I think the majority's claim is, A, while formally it's still there, like formally there's still a judgment that binds this party. So, that's a thing. And I think practically, what it does is almost nothing. But there is some legislation that was adopted, like a backup map that said this map springs into action if the judgment is reversed. And so, I think if the majority were to reverse, the backup map would spring into place. Whereas if they don't reverse, the legislature has to enact the backup map. I mean, that's a pretty thin distinction. And it's extra funny because the court doesn't reverse anyway. So, it's like this case is not moot because we might reverse, and if we did, your legislation might spring into effect. By the way, we're not going to reverse anyway.
And I guess if anybody had, there might be somebody out there who violated the judgment and there'd be some question whether held in contempt. I mean, I don't know if there is anybody who did, but it's a really thin--[crosstalk]
Dan: Yeah. Who did you think was right? This was one of those opinions where I was like, "Justice Thomas has some decent points on this mootness stuff."
Will: Yeah. I think the majority is technically right. I think technically the judgment is not moot and technically it could--[crosstalk]
Dan: We just call it judgment.
Will: I think there is an empty husk. [chuckles] Just like a peppercorn is enough for consideration. A husk, however empty, is enough for non-mootness.
Dan: What kind of husk is that metaphor usually referring to? Like a corn husk or like insect husk?
Will: I was thinking more like a beetle. Yeah, but maybe corn is better. That said, there's this mootness doctrine that is not the law that Justice Rehnquist once proposed that's like once the Supreme Court grants cert in a case, it doesn't become moot because we've already invested a lot of time in it, and we want to decide it. This is not the law. Rehnquist really did propose this in a case called Holly v. Doe. And there are a lot of Supreme Court mootness cases that feel like that's secret of the law. Had this happened below, the court would never have granted cert and would have said, "This case is basically moot." But they're not going to tear out the opinions.
Dan: Yeah. And it's just interesting. We speculated some that maybe they would be relieved to not have to deal with this. This is a hard question and it's politically messy, and maybe they would be happy to have this way out, but they don't take the way out. They say, "No, we'll deal with this jurisdictional stuff. We will solve it."
Will: And I think this is a strong will to get answer before 2024.
Dan: Which is good, which I think is actually really good to have this decided when it's not clear that the resolution of it will tip the balance of a presidential election between Biden and Trump or whatever. I think that's good and that it's good that it's not being decided in Bush v. Gore.
Will: And that it's bipartisan.
Dan: Well, the Justices have no partisan identification, so that concept doesn't really make sense when you're talking about the court, Will.
Will: Good point. Sorry. Yes.
Dan: The Judges are trying to do their level best.
Will: Thank you, Dan. I can't believe I'm-- It's great that--
Dan: [crosstalk] -we have to get the Chief on here to remind you.
Will: I would love to have the chief on here.
Dan: [chuckles]
Will: I was actually trying this the other day. Has any sitting Justice ever appeared on a podcast?
Dan: I don't know. If anybody would have, it probably would have been Justice Ginsburg, right?
Will: [laughs] Well, if there's a Justice listening who wants to appear in this podcast, I think we should make an exception to our no guests rule if they want to.
Dan: Yes. I would honor that. And we don't promise favorable coverage from that point on, but subconsciously we would find it harder to criticize that person. We'd be like, "Wow, really hate that opinion." On the other hand, they came on the show.
Will: Yeah. Just saying. All right. Anyway, it'll be good. I mean, the court doesn't definitively resolve the issue, so we'll still have some case of 2024, I'm sure, where somebody says, "This ruling is the one that crosses the line."
Dan: It's a smaller set of potential cases.
Will: Yes. And it gets a large group of justices on board for both the principle that there is such review. It's not totally lawless for the photographs to engage in such review, but it should be rare.
Dan: Yeah.
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Will: Thanks for listening. Please remember to rate and review, especially on the iTunes Podcast Store or wherever else you listen. Buy our stuff at store.dividedargument.com, like I just did. And thanks to the Constitutional Law Institute for sponsoring all of our endeavors.
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And if there's a long time before our next unscheduled episode, it will be because a public opinion poll has revealed we are at our lowest point of popularity of all time and we're too ashamed to record a new one.
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