In this mega-episode, we catch up on the orders list, circle back to Mallory, which we talked about last episode, and the dive into oral arguments in the affirmative action cases.
In this mega-episode, we catch up on the orders list, circle back to Mallory, which we talked about last episode, and the dive into oral arguments in the affirmative action cases.
[Divided Argument intro]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court Podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: Will, it hasn't been too long of a gap since our last one. We were actually hoping to record earlier this week, but I have one of my better excuses, which is I got a cold at the end of last week and lost my voice.
Will: This is the most implausible excuse I've ever heard.
Dan: This is true. This has been going on for a week. I'm still a little scratchy. Can you hear it? Can you pick it up?
Will: And you recorded me a voice memo the Monday we were supposed to record with your voice.
Dan: Yeah, that was pretty legit, right?
Will: I was ready to do it anyway.
Dan: Really?
Will: Well, I already had all the listeners yell at me when I recorded and it ended up into a bucket. And I thought it was only fair that this time, they'd be able to tell our timbres apart. So, [unintelligible 00:01:12] We have a couple pieces of feedback from last episode that might be worth saying.
Dan: Oh, yeah. So, there's one, big one, that maybe we should talk about, which is a very respected listener of the show, who I won't embarrass by naming, but someone, I think you and I both respect, came to me and said, "I don't like listening as much because, Dan, because of your relentless personal attacks on Will."
Will: Aw, that's nice.
Dan: Not nice to me.
Will: Well, you should stop making relentless personal attacks.
Dan: Okay. First of all--
Will: Have you been making a lot of personal attacks?
Dan: I feel like I relent quite a bit. [Will chuckles] And second of all, I don't really think my attacks are that personal. Last time, I gave you a hard time about those comments on the Harvard panel, but that was substantive.
Will: Maybe we should ask this listener to come on the show and tell us more about this. But last time, I guess you did make more sort of direct charges of hypocrisy. Normally, you're criticizing--
Dan: This is about the thing about that symposium article?
Will: Well, the suggestion that I was mouthing off about being rigorous on some panel that wasn't even--[crosstalk]
Dan: Yeah, I do that on the show for an hour a week, or every few weeks.
Will: And do I give you a hard time about it?
Dan: Not really, a little bit, but you're gentle.
Will: Well, that’s the point.
Dan: Have I made any other personal attacks? I don't think--
Will: At this point?
Dan: I think I've accused you of being a tool in the hands of the right-wing legal movement machine, an unwitting one. Maybe that's more of a personal attack. And a tool but you know what I mean.
Will: Maybe we should do a supercut at some point, collecting them all. Look, I mean, obviously, and I know the funny thing about these kinds of criticisms, I know you also get complaints that you don't do enough to dispel the dangerous partisan diluted misinformation that I'm constantly peddling and trying to get through.
Dan: Basically, the bottom line is everyone's a critic. But if you think I'm being unrelenting in my personal attacks or even if I'm making any, you should flag it for me in real time.
Will: Dan loves that.
Dan: Being told I'm making personal attacks?
Will: Oh, you mean I should flag it for you?
Dan: Yeah, you should flag it.
Will: I thought you were telling readers to flag it for you.
Dan: No, you should flag it. Listeners can do so as well.
Will: I'm not going to do that, Dan.
Dan: You're too nice. I mean, maybe that's the solution, is you need to hit back a little bit. But I feel I have to be on the attack here because you're like "Mr. Everything is great. Supreme Court, they're doing everything perfect, their divine--"
Will: I criticize them all the time.
Dan: I know. But on little things not on like big, big, big, big, big things that--[crosstalk]
Will: Well, that's where I think they deserve the criticism. I will say--
Dan: No, I feel like-- they got this little jurisdictional thing in footnote 12 wrong. Okay, fine.
Will: Jurisdiction is a big deal. It's not a little thing. Jurisdiction has the power to decide the case, it's the most important [crosstalk] case. It's a big deal.
Dan: Yeah, I know.
Will: I will just say as a general matter of sort of argumentative hygiene, I try very hard to do to focus on the substantive discussions rather than the meta discussions. This is especially a rule for online discussions with just there's a natural gravity where every hot button discussion can move from arguing with the object level thing, arguing about whether or not people are taking the right tone, arguing about whether or not people are making the legitimate forum, etc. I think those meta debates are so much less productive and yet somehow, they draw us in. I try pretty hard to just level down to the debate and not the meta debate.
Dan: Yes.
Will: [crosstalk] -which I appreciate.
Dan: And this is why you would still be friends with like a mass murderer or whatever.
Will: We're not going to be friends.
Dan: You'd be like, "Well, because he's making a good argument." Okay, not friends, but you do the panel?
Will: Remotely.
[laughter]
Will: We've been over this.
Dan: Yeah, that was one of my favorite topics return to probably, press you on that again someday.
Will: I will admit you made me look very bad in the discussion. [chuckles]
Dan: Really?
Will: Like tons of people who are otherwise friends think I'm a crazy person.
Dan: I mean, you have a very principled view there. It's a very bright line.
Will: It's a principle, it's not a bright line, it's a principle. All right, a couple other pieces of criticism or feedback. Another friend of the show wrote in to gently note that I oversimplified our discussion of personal jurisdiction a little bit in Mallory v. Norfolk Southern, when I was discussing where a corporation is at home, and I said it's the state of incorporation or the principal place of business, which is the statutory standard for corporate citizenship purposes of diversity subject matter jurisdiction, which is very close to but not identical to the standard that the court has actually put forward in its cases. There's a footnote [unintelligible 00:05:54] in a case called Daimler that introduces the possibility of exceptional case. I'm going to pretend that I knew all that at the time and was just aligning things for ease to listeners, but serious--[crosstalk].
Dan: Yeah. I did not know that at the time but I remember when you said that, I was like, "Is there the stuff about venue? Is that related?" I was googling it, and I couldn't figure it out in real time and I didn't remember it well enough.
Will: I was shooting for good enough to get us through the discussion.
Dan: Yeah. We don't have to go into the details, but there was one thing from last episode that got left in the cutting room floor, where I actually knew one thing about personal jurisdiction more than you did, which I feel like is rare. I don't expect that to happen.
Will: Yes, you did.
Dan: We went to the expert, Steve Sachs, who--[crosstalk]
Will: Confirmed that you were.
Dan: I feel like that’s the one time in three seasons when I'll get a little small technical point of nitty-gritty fed courts-ish doctrine.
Will: Right. I hope so. Yeah, I hope it won't happen again.
Dan: Was that a relentless personal attack?
Will: No, that was the opposite, I think.
Dan: I relented. It was a relenting impersonal attack.
Will: And then we talked last time on the show about when the Solicitor General has been denied the chance to participate in oral argument, because they almost always get the chance to come in, and you had this sense that the practice of denying them one every so often for sport had been ended.
Dan: Yeah.
Will: And I had [crosstalk] not.
Dan: And you should cut that memory-- I think we were both right, basically.
Will: Exactly. Yeah.
Dan: Because as it turns out, and a lot of people checked in with us, including a very good friend of the show, Adam Liptak. And the bottom line is the court did end that practice for, what was it like a decade?
Will: Yes.
Dan: There was a very long stretch where they didn't deny any. And then now they actually have denied to, I think, in the last couple of years. One of which was in a personal jurisdiction case that we should have remembered, I guess. And then, another one was from a case from 2021.
Will: Yes. 2020, Ford Motor Company v. Montana Eighth Judicial District Court. And then in 2021, City of San Antonio, Texas v. Hotels.com. So, two recent denials, one here, I don't know if that's the return of the practice of denying one every term or whether those are just bumps at the start of--
Dan: It's interesting that the one in Ford in 2020 that came when it was still the Trump administration because I could imagine it does seem like the court gets frustrated with the SG's office sometimes when there's a difference of ideology between the majority of the court, and who happens to hold the White House or the administration. And so, that was one thing that you could imagine happening, but that wasn't the case in 2020, so I don't know. That came at a time when people had been criticizing the court for SG seeking emergency relief all the time, the court granting the emergency relief all the time. And so, you wonder is that the court's attempt to be like, "Look, you don't just work for us, we don't do exactly everything that you want"?
Will: Right. Yeah, it could be. Also, the SG has United States as a client and has the political people in the White House sometimes pushing them on things. So, I think there's sometimes a push and pull where the SG may have to feel the need to see exactly what they can get away with, even if they would rather not be pushing the envelope. Not that the Trump administration had strong views about personal jurisdiction in Montana as far as I know.
Dan: Well, if they were, they weren't widely distributed. Okay. So that was a good one. And there's more people we could credit but there were so many people that wrote in about that--
Will: It's a good reflection of our listeners, I think. We asked that question on the air and within 48 hours, we had, I don't know, 10 very smart Supreme Court experts, friends of the show of various stripes, who'd already written in with the correct answer. It made me feel like--[crosstalk]
Dan: In our defense, I was like, "I'm not going to say something definitive, I'm just going to talk about my weird, fuzzy gestalt sense without having thought about this or have everything in my head and leave it to the listeners." And I knew that they were going to do that, and they did.
Will: Yeah.
Dan: So, that's something to keep an eye on whether that happens more in the future. I mean, it may cause the fact that it's happened a couple times. It may cause the SG's office to be a little bit more choosy. But the SG's office has this incentive to do it more because they want to get oral arguments for their assistants, because there's a certain number of assistants in the office and they try to have at least one argument for each one and the more senior ones get two or three, and if there are fewer arguments, the government can participate in, for sure there's opportunities to hand out. What else? Some other stuff that happened. We had an orders list that had maybe an above average number of separate opinions related to the orders.
Will: Yeah, six pages of orders, 48 pages of separate opinions.
Dan: Yeah. And some interesting ones. What do you want to talk about? What about Buffington v. McDonough?
Will: Uh-huh. Justice Gorsuch dissenting from [unintelligible 00:11:08] certiorari case involving the Veterans Affairs Bureau and Chevron deference. I feel like that's four lines of my bingo card all at once.
Dan: And it's Veterans Day. We're recording this on Veterans Day.
Will: Yeah.
Dan: So basically, in this case, we have a veteran, Mr. Buffington, who was in the military. He got injured and got classified as partially disabled, 10% disabled. So, in the military, if you get even sort of injuries that don't permanently disabled you, you'll get assessed some amount of disability pay for depending on the severity of the injury. He gets his disability pay, but then he is called back into active service statute. Congress says, "You don't get your disability pay while you're back in service," that it's suspended. He leaves active service again, and then they don't resume the payments for a while, a couple years, until he notices that he's not getting the payments. And they're like, "Oh, we don't resume them until you ask."
Will: [laughs]
Dan: And then, they give him like a year of backpay but he misses out on a couple other years where he should have gotten the benefits, and they refused to give them. He goes to court. The way it was resolved is the statute doesn't clearly say that this is what they should do. But the VA is making a reasonable interpretation and so we're going to give that Chevron deference. Which is for our listeners who are not deep into this, we have a range of-- some people listening are lawyers, but Chevron deference is the idea where the agency interprets the statute in a way that statute is somewhat ambiguous, courts will differ so long as it's a reasonable interpretation. The court did that here. And Justice Gorsuch wanted to take the case and reassess Chevron deference, which is something he said he's wanted to do multiple times, including on the 10th circuit. This is not a new theme from him. This is a longer opinion. It's 16 pages and he goes into a fair amount of depth. He's done this before, but maybe these are different arguments. He sort of goes through like an intellectual history of Chevron deference.
Will: Yeah, I think this is one of his more sustained-- This is to Chevron deference, what his Gundy dissent might be the nondelegation. And then, he sort of goes through his intellectual history with citations to a lot of scholarship.
Dan: Yeah. And really trashes Justice Scalia, who was his close friend.
Will: That's very interesting. Yeah.
Dan: He basically says, "Justice Scalia just completely made this up." And Justice Stevens writes the original opinion in Chevron. He points out that at the time, it's not clear that people on the court interpreted Chevron for at least a few years as standing for this broad principle of deference. But he's like, "Oh, but Justice Scalia started saying that, and he wrote a law review article and everybody believes it, and he was totally wrong," which is interesting.
Will: Sort of a declaration of independence. He cites tons of good people from Aditya Bamzai, Evan Bernick and Tom Merrill, Jack Beermann, interesting.
Dan: You're not in the mix here, Will. You haven't written this much--[crosstalk]
Will: Yeah, I don't-- I mean, I think I found Aditya Bamzai's article and that's pretty persuasive. But I don't have a strong view about the--
Dan: What's the [crosstalk] summary of that piece?
Will: The Bamzai's piece basically traces the history of judicial deference to executive interpretation, and so talks about how there were-- in Chevron itself, Justice Stevens cites a bunch of sort of earlier cases and instances of deference to executive interpretation to say, "This is nothing new." So, part of what Bamzai does is to dig into those and see what those earlier doctrines and cases looked like and what was the logic of them and how they are not the same as the logic of Chevron. And in particular, the earlier cases had a lot of an idea of deferring to either longstanding customary interpretations, so the agency has been doing it this way for a long time, or interpretations right when the statute was enacted. So, it was enacted and immediately the executive branch thought it meant act, so that's a pretty good sign that that's what the statute is supposed to mean. And that those two principles were different from modern Chevron deference, which has this feature that it just looks at what the agency thinks right now, even if the agency changes its mind. In fact, part of the idea of Chevron is that the agency has the right to change its mind. It's like Republican administrations interpret the statute one way, Democratic administrations interprets it the other way. And that feature especially didn't necessarily have as much historical roots. There's a lot more in there about writs of mandamus and the history of the APA. It's a sort of master pieces.
Something else interesting about this Gorsuch opinion is there's also some ambiguity about exactly what he thinks the state of play about Chevron is now. He describes Chevron and he describes how it morphs into bad Chevron, but he's not necessarily saying Chevron itself is wrong so much as sort of Justice Scalia's overinterpretation of Chevron is wrong. So, a lot of it's about the broad reading of Chevron, the problems with the broad reading of Chevron, without saying he's going to get rid of all of Chevron, which is I thought is interesting.
And then, he also suggests that maybe the broad reading of Chevron has already been overruled, so maybe we don't need to do it? Unsurprisingly, given all of this, all the critique he describes, the aggressive reading of Chevron has more or less fallen into desuetude. The government rarely invokes it, and courts even more rarely rely on it. The Federal Circuit's decision at issue here is something of an outlier. And maybe that's a reason to deny review of this case. Maybe Chevron maximalism has died of its own weight and is already effectively buried. But even so, we should reverse in this case, we should do explicitly, etc.
But I think that’s interesting, because there's always this tension with a dissent from denial of cert, especially when you're the only one in it, where on the one hand, you want the courts to take it, but I think the courts not taking it, so the more you write about why it's bad, the more you're maybe cementing the bad thing. So, this is Justice Gorsuch's attempt, I think, to say, "I'm not saying Chevron's alive. I think it's dead. But I would have put one more bullet in the corpse anyway if I could."
Dan: And nobody else joins, which is interesting, because there definitely has been some appetite among other justices for reconsidering it. Why do you think that is? Do you think maybe people are basically just going to say, "We don't ever really need to overturn this, we'll just stop doing it, and it'll just fade away?" Or is there something about this case? I thought it was a decent case for him to take the stand in, because first of all, just reading this and not reading the briefs, there seems to be a pretty good argument that this is not the right interpretation of the statute, or at least not clearly the right interpretation of the statute. And it's also very sympathetic. You've got a veteran who's not getting his money just because he forgot to ask, but nobody else wants to do it. Why?
Will: I think we're in this Chevron detente, presumably because there's not a clear consensus to overrule Chevron or even overrule the broad reading of Chevron replaces something else. Everybody could just agree to ignore it but that's not quite the same thing as agreeing to officially overrule it and replace it with something. So, the court actually granted that they have to talk about this out loud.
Dan: Yeah. So, I guess they're not going to have a big Chevron case super soon, unless there's some reason why they didn't want to do it here and they want to do it elsewhere. Let's talk about the other Justice Gorsuch one, which is Khorrami v. Arizona. This one I thought was even-- it's more in my wheelhouse. This is when it's a dissent from denial by Justice Gorsuch. There's also a notation at the beginning that Justice Kavanaugh would grant the petition for writ of certiorari, but he doesn't join the dissent from denial.
Will: What do you make of that?
Dan: Yeah, I don't know. Maybe he doesn't agree with what Gorsuch says in there, which we're going to talk about. Basically, the issue in this petition was whether under the Sixth Amendment as incorporated to the states whether there's a requirement of jury size, whether a jury has to be 12 members or not. And the court had previously said in this case, Williams v. Florida, that six is okay. In state cases, six is okay. In the federal system, the Federal Rules of Criminal Procedure required 12 anyway, so it doesn't really come up. But in the state system, in that case, the Supreme Court had said, "You know what? Six is okay." Later, we found out that five is too few.
Will: And where does the six come from?
Dan: Six comes from looking at social science and stuff and sort of seeming like, "This doesn't seem like it would be that bad. It's not that practically different but maybe when you get to five, it becomes [crosstalk] bit of a problem."
Will: Empirical studies of five person versus six-person juries.
Dan: Not a ton, but the case involving five is-- I think, a particularly derided opinion, that's Ballew v. Georgia, it's opinion by Justice Blackmun that gets a little bit deeper into the not great social science stuff. But basically, in this line of cases, the court is sort of like, "Yeah, original understanding, not super clear. So, let's just be a little bit more functionalist." And Justice Gorsuch's position is, "That's wrong. It wasn't the right mode of analysis." And if you do originalism, there was this widespread assumption going way back that juries were 12. And that at least seems to me plausible, and it certainly seems to be the opinions that he's attacking were on their face. I teach some of them but not super, super persuasive.
So, two Justices here, at least, were interested in this case. This is one of the line of cases where Justice Gorsuch has been really interested in overturning precedent that he sees as inconsistent with the original understanding of criminal procedure rights including another jury case, Ramos v. Louisiana, where he says jury unanimity, the court had previously said, there's no requirement of jury unanimity in state cases. That was one of these weird places where-- and I think the last place where the court had sort of said there's a different constitutional rule for states versus the federal government, and they had previously said nonunanimous juries are okay in state cases, and they overturn that say, unanimity is required. So, you can see this is of a piece with that. Another place where the court actually around the same time had said, "No, this is not the way it was always done, but we'll let states do this." He overturned precedent there. He wanted to do so here but does not get enthusiasm for the rest of the court. Why?
Will: Yeah, it's interesting. I mean, this reminds me of Ramos in some ways. And Ramos was a somewhat controversial decision at the time. I think the court had a sort of 6-3, but with a lot of different competing opinions and things like that. And at least, three things that made Ramos go down easier were that only one and a half states were still applying the 9 [unintelligible 00:22:31] rule there.
Dan: Yeah, two had done it and one was in the process of getting rid of it.
Will: I remember that. The court could have at least argued. Justice Gorsuch argued, although some people disagreed about this, that there was no previous precedent upholding it. So, in Ramos, the previous precedent, APA, DACA didn't have a majority opinion. And Gorsuch argues there isn't really any precedent upholding it. So, you can skirt some of the stare decisis questions, which Justice Gorsuch doesn't care about but which people whose votes he needs do care about.
In Ramos, there was this evidence that the practice of nonunanimous juries specifically had a racist origin and were designed to make it possible for majority race to-- the convictions that the [unintelligible 00:23:15] with the votes of racial minorities. And given the coalition, it may have taken all those things to make that work. Maybe a lot of the Justices remember doing [chuckles] [unintelligible 00:23:26] thought of that. [crosstalk] That was tough enough and not clear this one--
Dan: Too tight.
Will: Yeah. But that's why it's probable-- I presume that's why Justice Kavanaugh wants to note that at least he's willing to grant to be a signal that it's not totally a Gorsuch special, that he at least is willing to dig into it. I guess, as I think about it, it's also interesting. Justice Gorsuch tells us he would grant and overrule the case, which way he would come out. Justice Kavanaugh just tells us he would grant. Could be, he's not sure. It could be--[crosstalk]
Dan: Yeah, that’s what I was thinking. Grant, and be like, "No, we're still right." Which is what happened in the other case I was thinking about. You're going to remember the name.
Will: Gamble.
Dan: Yeah, Gamble, which is where there was this longstanding rule of double jeopardy doctrine that said double jeopardy isn't implicated by prosecutions involving separate sovereigns, the state and the federal government are two states. And everybody got all worked up about how maybe that rule is wrong and not consistent with originalism. And then, it got to the court, and most of the majority of the court was like, "You know what? Actually, this was a lot more complicated than we thought. The original rule is actually still right." And then Gorsuch dissents from that as well.
Will: Yeah. So, that's an interesting one, probably also not going to happen anytime soon. But kudos to Justice Gorsuch for trying.
Dan: Another person who is trying is Justice Thomas. We don't have to spend as long about this one, but in the case called Carol v. Clendening. He is returning to an earlier view he's had that Supreme Court should overturn a case called Feres v. United States, which is--
Will: [unintelligible 00:25:13] Feres?
Dan: Yeah, I've heard it. I guess I don't actually know. F-E-R-E-S, which said that if you're a soldier and you're injured in military service, you can't sue the government even though the Federal Tort Claims Act doesn't contain any explicit exception to that. So, you have some injury, and that seems to fall within the waiver of sovereign immunity provided in the Federal Tort Claims Act, which lets people go sue the federal government if they get injured in some tortious conduct. But the court just said, "I know you didn't carve out an exception for soldiers. But we just think that that's not really what you meant, so we'll leave one that out." He said before, "Let's get rid of this-- [crosstalk] here. Nobody else wants to get rid of it, or nobody else wants to join and get rid of it."
Will: I particularly like these. I used to talk about this a lot because when I was clerking on the 10th circuit in Judge McConnell's chambers were in the Federal Building in downtown Salt Lake City. And often, I don't know, at least every month, and maybe more often than every month, there would be a band of protesters outside the federal building holding these big signs that said, "Repeal the Feres Doctrine."
Dan: Oh, really?
Will: Yeah.
Dan: I didn't know that this was-- people actually protested about.
Will: At least in Utah.
Dan: Yeah. These must be family members who--
Will: Family members of soldiers who were-- yeah, presumably. Some of them may have been themselves are victims of--[crosstalk]
Dan: Yeah. Either severely injured or family members of soldiers who have been killed. Oh, that's fascinating.
Will: Yeah. The first time it happened, of course, I had to go google the Feres Doctrine, because it's not something that I-
Dan: Wait, really?
Will: -I didn't learn it in law school.
Dan: I figured that would be something that you had encountered in your readings about abstruse fed courtsy doctrines--[crosstalk]
Will: I did look at the protester signs.
Dan: Yeah. Another Veterans Day Special for us. Any of the others you want to talk about? There are a couple coming from the other side of the court.
Will: Meanwhile, we have got Justice Gorsuch and Justice Thomas on the one end. And then, Justice Jackson and Justice Sotomayor have a pair of dissents about miscarriages of justice in the criminal justice system, they want the court to deal with. A habeas case, Chinn v. Shoop. And another case arising out of Louisiana, Anthony v. Louisiana.
Dan: The Louisiana one is a little bit more interesting because I [chuckles] think what happened is basically the defendant wanted to impeach government witnesses by saying, "Oh, they got this super favorable deal." And then, to rebut that the prosecutor testified, but then testified for a really long time, basically about a bunch of legal conclusions about how the defendant was guilty.
Will: [laughs]
Dan: Which is pretty bad.
Will: Yeah.
Dan: It seems really bad to me. And the courts below said, "Yes, this was unconstitutional. But this was a harmless error."
Will: You've written about harmless error, have you, Dan?
Dan: I think I've thought more or as much about the harmless error doctrine as anybody, wrote an article called Harmless Errors and Substantial Rights in Harvard Law Review, before years ago, if you were interested in this abstruse doctrine, but I am confident I got it right and figured it out in ways that other people haven't. But it relates to that, because basically, there's this question about what are courts doing when they do harmless error analysis? Are they supposed to just say, "Yeah, you got screwed, and understand that the jury might have relied on this"? But there was a bunch of other evidence, like, "If we tried you again, it would be the same result. So, we'll treat that as harmless." That's one way you could think about it, like it doesn't matter.
And there's another way to think about it, which is, well, we have to figure out whether this actual jury verdict was affected by this, or it didn't make a difference to this exact jury. And I know, conceptually, those two things sound really similar, but they are different. There's actually a bunch of very good language from Justice Scalia in a case called Sullivan v. Louisiana, and he's the only person, I think, to actually try to conceptualize what harmless error analysis is supposed to look like although he didn't ever drill all the way down to first principles, and that's what I tried to do in my article. But sort of says, like, "You have to look at like this verdict, was this a tainted verdict? And the fact that we think that a different jury would have reached the same result anyways. That's not enough. That's not the way the analysis is supposed to work."
Will: Right. So, I take it to apply that to this case, as I understand it from the Justice characterization, the lower courts did the wrong thing. They just said, "Look, this guy was super guilty. Obviously, he would have been found guilty, even have we not had a prosecutor come in and taint the whole trial." And that's the wrong question. But it's not open and shut. We would want something, like, "Did the jury actually rely on this? Did the jury correctly understand that they should just disregard this whole spiel or not? And if they did, and if they could, the question is whether they should and somehow put it out of their mind and then use that in their deliberations, that would be harmless error."
Dan: Yeah. But if this was the thing that control the decision making, even if we could imagine counterfactually, that it wouldn't have mattered because there was all this other evidence, then it shouldn't be harmless error. Now there's another view, which is just that any constitutional error should just require automatic reversal, that there shouldn't be a harmless error doctrine. But I think most people find that unattractive because there are all sorts of more minor errors that happen in the course of a trial and we want to be able to say some of them, [crosstalk] "Yeah. This was bad, but it doesn't require completely overturning the whole--"
Will: And whether it was minor also gets sort of sometimes gets packed into our description of whether that counts as a violation at all, and sometimes doesn't, like if we are asking--
Dan: This is remedial equilibration, right?
Will: Maybe even explicitly. To ask whether your lawyer was ineffective, part of what we ask is, "Did you do something below the standard of competence?" But part of what we ask is, "Did it make a difference?"
Dan: Yeah. There are a couple areas like that, ineffective assistance of counsel, and Brady and I talked about these in the article, where we have harmlessness standards that are actually built into the substantive definition of the right, but most constitutional rules aren't like that. And I have a theory for why those are different, that I talk about--
Will: Yeah, it's a great article.
Dan: Have you read it?
Will: Yeah, I read all your articles.
Dan: Do you have a first principles view on what harmless because the thing that's-- maybe this is getting too deep, but the thing that is weird about it is the court has said this is a doctrine that state courts have to follow. They have to follow this federal harmless error rule when someone raises claims of federal constitutional errors in state criminal appeals. And part of the premise of my article is like, "This is really, really hard to explain under existing theories," and I try to come up with a reason why that's different.
Will: I think I agree with-- your view is consistent with the view that that harmless error ultimately emanates from the due process clause partly, that to ask whether or not your trial has been conducted in accordance with law, and with due process requires figuring out what the rules were that actually obtained in your case, right?
Dan: Say that again.
Will: I'm not going to say it again, because I'm going to mess it up even more, I think I buy your view, or at least I think I buy your view as an explanation, as a synthesis of existing doctrine. I don't have a strong view. If it turned out that some sort of wilder view [unintelligible 00:32:42] was actually more deeply rooted in the original materials.
Dan: Yeah.
Will: I don't agree about that endorsing that but--
Dan: Because I don't drill down all the way to original understanding, but I say, "Look, this is the way these cases have worked. And there's only one way you can actually make sense of them, which is that this isn't just a loosey-goosey remedial doctrine, because if that were the case, courts could just say like, 'Who cares? What's the big deal? No remedy here.'" What I say is, "No, they're what they're trying to do is figure out whether your rights have actually been violated." So, the thing that we do in these other areas, Brady and ineffective assistance of counsel, that's actually what we should understand them to be doing all the time and that's why he replies in state court because it's a part of the underlying definition of the right. And state courts can't redefine rights through changing the remedial rules. So, this is not [crosstalk] remedial.
Will: The only thing I'm not sure about is whether assuming you don't have a right to an appeal of a criminal conviction, I think is still the rule. Whether you could adopt the other harmless error doctrine by adopting a limited appeal rule-- you said something there's only a right to appeal or only people who have plausible chance of success on retrial have a right to appeal, as a separate remedial limitation on appeals.
Dan: Yeah.
Will: Now, that wouldn't mean that the conviction was valid and so then they'd be habeas and other implications, and there'd be the client [unintelligible 00:34:04] courts questions or whether you could adopt that kind of rule. But as a way of saying, "Okay, the error was harmful. Something happened wrong. But look, we're not going to hear appeals from people who are going to be convicted again anyway."
Dan: Yeah. But that premise that you don't have a constitutional right to appeal at all is one of the things that makes the existing understandings really confusing. Quick things to say, but that we had the election on Tuesday, and not all of the results are finalized. But I think the common wisdom is definitely that Democrats overperformed expectations and fundamentals. Republicans underperformed. I think people thought there was going to be a potential for huge wave election for Republicans. President Biden, not super popular. The party outside that doesn't hold the White House usually does quite well in midterm elections. And this was less than Republicans were expecting.
And then, one thing a lot of people are saying is talking about the court's role in this in a couple of ways. One is Dobbs. Court overturns Roe, and there was a certain amount of uncertainty about how that was going to affect the country politically. And at least, there is one story and it probably will take quite a bit of time for political scientists to come up with compelling explanations here, whether this is true, but one story that really cut into the strength of Republican candidates, a certain number of people, maybe women in the suburbs, were unhappy about that, and that that helped Democrats. And then on the other side, the court stepped in and overturned some lower courts who were trying to stop gerrymanders. When the dust settles, it looks like there may be a story that that made the difference and controlled the House of Representatives if the Republicans end up with a very narrow controlled House of Representatives.
Will: If all that's true, if the Supreme Court's decisions indirectly led to both the Democrats keeping the Senate and Republicans keeping the house, it'd be interesting question whether-- does that raise or lower the value of the Supreme Court term? I did see the hot take on Twitter, as long as that website lasts, "It turns out we all owe Justice Ginsburg an apology. By refusing to resign during the Obama administration and holding on to her seat and dying in the Trump administration, she ensured the destruction of Roe v. Wade, which has now ensured the safe possible delivery of the Senate into Democrats hands." I guess, it's too soon to say whether that's happening and we've runoff and all that.
Dan: Was that offered in jest or was that offered with a straight face?
Will: I assume it was in jest.
Dan: Okay. That's quite a take. That's a galaxy brain take. I like it.
Will: Yeah.
Dan: A lot to talk about. We had the oral argument in Mallory, the personal jurisdiction case we talked about last time. We're not going to do a full recap of that. But hopefully friend of the show, Ashley Keller argued that case on behalf of the litigant seeking personal jurisdiction, arguing that these consent-based corporate registration statutes as a basis for personal jurisdiction are constitutional. I thought he was really good.
Will: He was amazing, I can say.
Dan: And not really surprising, because he's someone that we know to be incredibly well spoken and thoughtful. And just like someone who's thought all these things through, like every legal question implicating the Supreme Court really well-- he interviewed me for my Supreme Court clerkship that was intimidating, but I thought he was really good. And I thought we might just play his opening on the show, just so people can appreciate it, because I thought it was one of the better openings I've heard. Although we are in this new era where the court lets people do these longer openings before they start jumping in with the questions, which I like. I feel that was a trend and then maybe the COVID period accelerated that. And now, people do get these longer intros, right?
Will: Yeah. I mean, I like some of them more than others, obviously. Even though it makes the arguments longer, I think it's a nice gesture from the court in the sense of, "You came all this way, and we will at least let you say your piece."
Dan: All right, so let's play this clip.
[clip begins]
Chief Justice Roberts: We will hear argument first this morning in Case 21-1168, Mallory v. Norfolk Southern Railway. Mr. Keller?
Mr. Keller: Mr. Chief Justice, and may it please the Court: As far back as 1827, states enacted laws like Pennsylvania's, and by 1868 or shortly thereafter, every state in the union had at least one and often several consent-by-registration statutes. This Court unanimously confirmed that such statutes comport with due process over a century ago in reasoning that's been embraced by jurists from Holmes to Cardozo to Hand to Frankfurter. With history, tradition, and precedent on Mr. Mallory's side, how can my friend challenge Pennsylvania law under the original meaning of due process? By claiming that these statutes were really just about specific jurisdiction based on contacts. Never mind that specific jurisdiction wasn't a thing in 1868 and for decades after the Fourteenth Amendment was ratified. Anachronistically, importing the principles of International Shoe into the ratification generation is my friend's maneuver, exactly what Justice Scalia counseled against in Burnham. That approach is not originalism. It's paying lip service to originalism, treating the doctrine as an infinitely malleable pretext to reach a policy outcome that Norfolk Southern and other big businesses prefer. But originalism is not a pretext. It's a neutral doctrine that aims to faithfully apply our nation's Constitution regardless of who benefits.
Fidelity to the original public meaning of the Fourteenth Amendment in this case means that the flesh-and-blood little guy wins and the Fortune 500 company loses. Irrespective of the exaggerated parade of horribles that my friend trots out, and if those policy considerations did somehow matter, corporations are quite adept at making their views known to state lawmakers. And Congress has tools at its disposal, from removal to preemption, if it appears that the sky is falling. There is no need for this Court to short-circuit the political process in the name of the Constitution. I welcome your questions.
Dan: That was great.
Will: I love so many things about that, not just the fact that he used the word 'originalism' like 19 times and said it was a neutral doctrine.
Dan: Yeah. And framed it as like, "This case is about this more overarching theory of interpretation," which is not often how cases are framed, at least at the very outset. They might get into that later but basically, brought it to the court was like, "This is a test. Are you really a real originalist? Because if you are, you have to go with me." I liked that he said specific jurisdiction wasn't a thing in 1868, that was cool.
Will: A little colloquial, but enough.
Dan: Yeah.
Will: I mean, the thing I like about it the most, and this is a little unusual for these statements is that-- I mean, while it was very respectful, it was a little aggressive in the sense of one of the minutes-- you get two minutes, one minute laying your case for why you're correct. And then, what is the other side's going to say and why you think it's wrong. I feel so many times, even really good arguments want to just ignore the arguments of their side or dodge them and just convince you they have a really good argument, and it must be right. And I just felt like this is true throughout the argument when we thought Ashley was especially strong at. Every time the hardest questions, he would just run right to them and explain what he had to say about them, which is obviously what you have to do if you want to persuade people.
Dan: Yeah. I thought that was one of the best ones I've heard. You were talking earlier and you said you still have some skepticism that his side can win, just given the underlying fundamentals, not because there's legal arguments, but--
Will: Well, it became clear in the argument that Justice Kagan was not buying with this for whatever reason. Initially, I think I put her on the list of the easiest five votes. So, I think a lot might come down to whether Justice Barrett, who was relatively quiet during the argument, is persuaded, and she certainly should be. I mean, I certainly think he should win. But that's not the test whether you're a good advocate.
Dan: So, I guess we should now talk about the thing everybody wants us to talk about, which is--
Will: I will say couple of my students who listen to the show were in my office other day, and they were begging us not to talk about this.
Dan: Okay, really? This is the affirmative action cases that were argued at the court earlier this week, Students for Fair Admissions v. University of North Carolina, and Students for Fair Admissions v. President and Fellows of Harvard College. These are certainly going to be among the biggest cases decided by this court this term. It's November, I think, very plausible that these cases could take seven months to decide. They could be end of term cases.
Will: Maybe not last day cases. Maybe this is going to be the cases that they come out sometime in a week before the end of the term and then finally, they can--
Dan: Yeah. These are big and basically, two related cases brought by the same organization against these two different universities, one public, one private, challenging their use of race in their review in selection of applicants for admission. North Carolina, that's just directly under the Constitution, because it's a public university. Harvard University, Harvard College, is a little different, because it's a private university that's not ostensibly bound by the Constitution but we have Title VI of the Civil Rights Act that basically imposes constitutional standards on private universities that accept federal funds. [crosstalk]
Will: It poses a more explicit no race discrimination role, compared to the 14th Amendment was always ambiguous. And then in Bakke, the first affirmative action cases, the Supreme Court said, "Well, it's all the same," the Title IV and Equal Protection Clause. Now, whether that premise is right is something that some of the [unintelligible [00:43:51] have tried to reopen and that Justice Gorsuch, I think, briefly tried to reopen. But it's a sufficiently well-stated premise that at first these cases were consolidated, just sort of one case. And then, after Justice Jackson was appointed to the court, the court realized that it had to unconsolidate them because she was a member of the Harvard Board of Overseers during a crucial time period of the case. And so, she has recused from the Harvard case, but, of course, they'd like to have a nine Justice Court. So, they split them so she could sit on the North Carolina case and then we could all pretend the Harvard case is unrelated. Or I guess we could pretend that whatever her-- I mean, this is one of those cases where I guess formally recusal makes sense. I don't know that I was really worried that her vote's going to be influenced by her specific service at Harvard. But we'll pretend it cures the problem that she--
Dan: Yeah, although the blue brief is the same in the two cases, right?
Will: Well, I think they didn't unconsolidate [chuckles] them until Harvard.
Dan: But it's like, is she supposed to read that brief?
Will: [laughs]
Dan: It's weird, right?
Will: I think she gets to read that brief. I don't know, maybe she gets a redacted copy.
Dan: Yeah.
Will: "There's another university in this case. We're not going to tell you what it is so it doesn't taint your decision making."
Dan: And so, on the side of Students for Fair Admissions, which is this organization challenging these practices, we have a bunch of attorneys from Consovoy McCarthy, which is a newer-- I think it's safe to call it a boutique, smaller firm that brings a lot of Republican right-wing kind of public interest cause litigation cases. The first person whose name is on the firm, William Consovoy, I think you clerked with, is that right?
Will: That's right. I clerked with at least three of the partners will. Will Consovoy, Patrick Strawbridge, and Jeff Harris.
Dan: And Consovoy was going to argue at least one of these and he unfortunately had to step away because of illness. And so, it ended up being argued-- Patrick Strawbridge argued the UNC case, right?
Will: Mm-hmm.
Dan: And then, Cameron Norris, also an attorney there, and quite young one, who was a summer associate at my firm when I was an associate way back before when he had just been hired to be clerked for Justice Thomas but hadn't gone off there, argued for this case. And on the other side--
Will: I think this is not even his first argument.
Dan: Yeah, getting an early start on that. And so, it's a very, very big case to have that early in your legal career, I would say.
Will: In some ways, you might ask, is argument in this case unusually stressful?
Dan: Irrelevant?
Will: Yeah. [chuckles] How much equity is still on the table in a case like this.
Dan: Yeah, because everyone just comes into it with their feelings about the issue. And the other side, in the UNC case, you have Ryan Park, friend of the show, who's North Carolina Solicitor General. There's two sets of respondents in that case. So, there's the university represented by Park, and then there's some student respondents, and they are represented by David Hinojosa. And then, you also had the SG, Elizabeth Prelogar, representing the United States in that case, and then in the Harvard case, on the other side was former Solicitor General, Seth Waxman.
Will: [crosstalk] -Elizabeth Prelogar, she got both cases.
Dan: Yeah.
Will: One person had to go to the podium twice.
Dan: Yeah.
Will: Actually had an interesting question of how to handle the-- once you choose for the second argument, having already unloaded all of her ammunition in the first argument, what does she say now?
Dan: Yeah. And it was like slotted for a total of 160 minutes of argument. I think it ended up being longer than that.
Will: Twice that.
Dan: Yeah. They just let them keep going.
Will: 160 minutes is two and a half hours. I think it ended up being almost twice that.
Dan: Yeah. So, I listened to the whole thing. I listened to it on 1.7x, that's my sweet spot for-
Will: Really?
Dan: -after listening-- what do you--
Will: I listen to everything on 1x. I like it. I need to get the rhythm, the music--[crosstalk]
Dan: Yeah. No, that would be nice. But I didn't have five hours to listen to the whole thing.
Will: It wasn't five hours at once but--
Dan: Yeah, I mean, you stretched it out. So, where to start with this?
Will: Is there any suspense of what's going to happen?
Dan: I don't think so. That's the thing that's interesting about this, which is that there are a lot of complexities in this case, and in maybe in both cases, because there was a trial, there were factual findings about what exactly was going on. And it just seems like none of that is going to matter. It just seems like what the court wants to decide is, are you allowed to consider race inhibitions or not? Is Grutter the case that said you could, and Bakke, the earlier case that said you could, should those be overruled or not? Even though there were all these factual findings and all these different simulations, and how much is race mattering, and is the university doing racial balancing or not, you had a factual finding that they weren't. It just seemed to me at least the conservative Justices were not inclined to really think hard about that, and just rush past that and let's just do the big question.
Will: Well, I agree with the prediction. I actually think it's almost the opposite. A lot of the factual findings are relevant to more moderate approaches. So, if you wanted to say Grutter is still good law, but they're doing it in an overly wooden fashion or something, or Grutter is still good law, but they're using this to discriminate against Asian Americans, which is a problem, those are harder to do because of the factual findings because the factual findings amount to, are they really applying Grutter very carefully and in good faith? But I don't think anybody in the trial court actually claims that they're not using race in an asymmetric--
Dan: Yeah.
Will: The Grutter question is, can you use race to help some racial minorities in a way that everybody agrees you couldn't use it to hurt them? I think everybody still agrees if Harvard did-- if it gave this these kinds of bumps and tips and balances on the scale to white applicants and not any of the other kinds of color, I think everybody agrees that would be illegal. So, the question is, is the rule symmetric? And the previous precedent says it doesn't have to be symmetric. And now the court's going to say presumably it does.
Dan: That certainly seems likely although you never know. I mean, there have been a couple of times when it seemed like the court was on the precipice of doing that and then pulled back. That happened in a couple cases where Justice Kennedy was the deciding vote where he had previously been opposed to use of race in this way. And then, when it actually got put into the question, he seems like he pulled back.
Will: Right. He dissented in Grutter. In a lot of cases, he dissented Grutter with Justice O'Connor in the majority. In a lot of cases where Justice Kennedy dissented with Justice O'Connor in the majority, he later found ways to reinstate his original views. But in Fisher, he didn't. Can I ask you two questions about pulling back? If the court were going to pull back, what would that look like? So, one option, that a friend of ours, Justin Driver, put forward in the New York Times before argument, I've got a fairly unreceptive reaction to, was the 25-year rule.
Dan: Yeah, this is a really weird feature of Grutter. So, the court says--[crosstalk]
Will: This is the 2003 opinion upholding affirmative action at Michigan Law School.
Dan: Yeah, and this is near the end of the majority. Opinion says, "It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education." And they're talking about this earlier Bakke case. "Since that time, the number of minority applicants with high grades and test scores has indeed increased. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." So, 2003, it's 2022 right now, so we should have till 2028 on this, right?
Will: Yeah, we're six years ahead of schedule. I was a college intern at a public interest law firm that had been involved in the Grutter litigation the summer Grutter was decided. So, we were watching, and the case was decided, and this was before there was many blogs--
Dan: On which side?
Will: They were anti-affirmative action side, the good guys. And we were watching to see what would happen. I remember we were watching the news, and so the news clip that will cry out at the bottom of the news said, "Justice O'Connor: Affirmative action will be unconstitutional in 2028."
[chuckles]
Will: They didn't have the opinion and [unintelligible 00:52:58]. Everybody was like, "Obviously, the opinion doesn't say that. What can the opinion possibly say that would lead a reporter to say the opinion said that?" Nobody can figure out until we got our hands on the opinion. Is this a real thing? Obviously, it says 'expect'. It neither says, "In 2028, affirmative action will automatically terminate." It's not literally a sunset provision. And it also doesn't say, "This opinion is locked in and it can't be overruled in 2028." I take it you probably couldn't say that. But it's there.
Dan: Yeah. I guess it always just struck me as bizarre to interpret it, although some of the dissents in that case, and Justice Thomas' dissent, basically mocks it by interpreting it as a holding. But it always just struck me as, "This is just window dressing." This is just like a thing that they're saying about why they're making the decision. You can't put a ticking time clock on a Supreme Court opinion like that. It doesn't really work.
Will: Well, why can't you?
Dan: It's just not a thing that we do.
Will: And I will say, this point gets me to the argument several times too. That sentence occurs as part of a longer section about how uncomfortable the court is with permitting this kind of use of race. It even says, "We see no reason to exempt race-conscious admission programs from the requirement that all governmental use of race must have a logical endpoint." It quotes a concession from the law school that affirmative action must have a reasonable durational limit. As they're going through, like, "Sunset provision, how could you impose this durational limit?" I guess you could say, and this is what happened to the Section 5 of the Voting Rights Act, you could say, "We're upholding this but we're upholding this on a theory that we think won't be true forever. And that will result in this eventually becoming impermissible," which is what the court eventually decides in Shelby County. So, maybe they were Shelby Countying affirmative action?
Dan: Yeah. Like giving warning or something.
Will: Yeah. Trying to tell people, "Don't get used to this. Don't treat this as a piece of the fabric of how it's supposed to work. Just accept that we're trying to be moderate, reasonable."
Dan: Yeah, it's just weird for the court to do that because, at any given moment, it's not that likely that any given Justice will still be in the court in 25 years. If you're getting someone at the very beginning of their tenure, yeah, but if someone has been on the court for a while, it's very hard to say like, "We expect that future courts will follow our timeline."
Will: So, we think maybe the court's not going to issue a ruling saying, "Okay, Harvard wins, but in six years, you guys lose."
Dan: That doesn't seem super likely to me.
Will: I agree.
Dan: Honestly, there was more discussion of the 25-year thing than I expected there to be, right?
Will: There was a lot of discussion of the 25-year thing.
Dan: Yeah. It almost seems like talking about it is like trolling or something.
Will: Which side is trolling which side?
Dan: Like the Conservatives are trolling, by even pretending to take this seriously, trying to engage with it as an argument.
Will: I think that's not fair. When Justice O'Connor puts that passage in the opinion, obviously she's not going to be in the court in 25 years and she knows that. Certainly, Chief Justice Rehnquist is going to be in the court in 25 years, and she knows that, but she knows that putting that passage in the opinion makes it easier to overrule it later.
Dan: Yeah, maybe.
Will: And that must be why you do it. You're issuing an opinion that you're in some ways planting the seeds of your opinions on destruction. And then, I think it's fair to say that makes this not like a normal overruling-- [crosstalk]
Dan: This is like Justice Kavanaugh's question to SG Prelogar, which says, "Well, look, Justice Thomas says in Grutter, 'I agree with the court's holding that racial discrimination in higher education will be illegal in 25 years.'" And Justice Kavanaugh says, "In taking that statement, it would seem that extending it beyond 25 years will itself be overruling Grutter."
Will: [laughs]
Dan: That's a little trolly, right?
Will: It's a little cute. I think it's a point. The other intermediate approach, which I think only Justice Gorsuch expressed any interest in and is mentioned in amicus brief by Jonathan Mitchell, I think, is the court could decide this case on statutory grounds rather than constitutional grounds. Now, this would not be an intermediate ruling in the sense that the universities would not be any better off. The idea would be for the court to say Grutter and Bakke are overruled to the extent they interpret the Civil Rights Act, Title VI, to the extent they interpret Title VI, they're overruled. But we don't have to get into the question of, does the Constitution itself require that? Therefore, we don't have to get into originalism and whether the Freedmen's Bureau is race conscious or not, all those things. I hadn't really liked that approach. I would love it if the court takes it.
Dan: Well, tell me why you love it.
Will: I like it for two reasons. So, one is, I do think the originalist questions here are weirdly understudied given how studies they are. I mean, everybody goes to the same core questions about the Freedmen's Bureau and what to think about that. But when you get into the weeds of the Fourteenth Amendment figuring out even which textual revisions are supposed to be an issue here, and how to think about federal government versus state government action, and what [unintelligible 00:58:45] precedents interpreting that, that part is complicated. Whereas the statute is much more clear, just ban on race discrimination, you can ask that's symmetric or not. And it would leave the ball in Congress's court. If the court says the statute forbids affirmative action, that leaves open the question of what happens if Congress comes in and changes the statute to either permit or even require affirmative action. And there are plausible arguments that the federal government has a lot more freedom in this area. Justice Thomas endorsed those arguments last term in Vaello Madero saying the Equal Protection Clause doesn't apply the federal government, maybe some other standard does. So, it'd be nice to not have to prejudge all that.
Dan: And so, rejecting the reverse incorporation theory under which the Fifth Amendment somehow reaches forward into the future and pulls in the Fourteenth Amendment?
Will: Indeed. In the middle of 20th century in Bolling v. Sharpe, which is this segregation of the DC schools, the court says in a very short opinion, that it's just unthinkable for a different standard of race discrimination to apply to the federal government than the state government and that produces this modern doctrine. But, historically, it's not unthinkable. I mean, historically, it's not a coincidence that it's Congress that's doing these things like the Freedmen's Bureau and other kinds of race-based remedial legislation. You could imagine some reasons at the time of the Fourteenth Amendment, they think, like, states just shouldn't be trusted with race. But Congress, which is more representative and more legitimate, could be trusted with it.
I just have to say that it turns out that the whole holding of Bolling v. Sharpe, that whole reverse incorporation thing was inserted at the last minute in drafting because the original draft was going to decide the case on the grounds that there was a fundamental, substantive due process right to education, and this was an unreasonable denial of education, and then somebody, probably Hugo Black said, like, "Wait a minute, I can't sign on to that." And so, they just stuck this in. There's just lot of moving parts there. This is already a big case. So, it'd be nice to resolve it a little more cleanly.
Dan: Yeah. Although thinking it through, it's smaller in some sense that it doesn't resolve a constitutional question. But at the same time, would that have bigger implications, in some ways because it would also have more immediate implications for other civil rights statutes?
Will: I mean, that's the question. I guess, is--
Dan: Like Title VII, if you're reading Title VI to say this provision about exclusion on the basis of race means you just don't get to consider it at all, it seems like it's a shorter hop from that to interpret other civil rights statutes that way. That was one thing that people said about Justice Gorsuch's opinion in Bostock interpreting Title IV, as to its prohibition on gender discrimination saying he interpreted that as, "Well, you can't also discriminate on the basis of gender identity or sexual orientation," because in both those cases, you're considering the person's gender. You're saying, "Oh, this person has a relationship with a man, and they're a man, so therefore, I'm not going to hire them," or, "This person dresses in traditional feminine clothing but this person actually has this other gender as we assess it." He's like, "You can't do that at all." And then, a lot of people said, "Well, look, this is actually--," what's the metaphor, sort of like a Trojan horse for this broader interpretation where you just say that you just don't get to consider any of this stuff. You don't get to consider race, you can't do affirmative action.
I think you can still get there to the Title VI place, and I think they still will get to the Title IV place, even if they do a constitutional ruling here. But maybe it requires one additional analytical step. Is that plausible?
Will: It might. The thing that's weird is that since they've said that the Constitution and Title IV mean the same thing., if they rule against the universities, I think they're going to be saying, "This is also forbidden under Title VI." So, there's going to be a statutory ruling banning affirmative action either way. And the only question is do you want it to come with a constitutional ruling too or not, but I agree some [crosstalk]
Dan: It's going to come because presumably, they're going to say Title VI just follows equal protection case law. Does Title VII follow equals protection case law?
Will: No.
Dan: Yeah. It seems like it's one more jump. Maybe not. Maybe I'm wrong about that.
Will: I feel you. [crosstalk]
Dan: Why do you like the Title VI? Why do you think that's cleaner?
Will: I guess it's easier to defend on legal materials, which I always like. As you know, I like to see the Supreme Court stand on stronger ground rather than weaker ground. And it leaves open the bigger federalism questions, because I do think there's a strong case to be made that that the federal government could enact affirmative action, and the courts should let them. And it'd be nice to at least see that.
Dan: But you would ditch to reverse incorporation.
Will: Yes.
Dan: Would you find in any of the other provisions of the Constitution, any anti-discrimination principle, like in Article IV or something?
Will: Well, not Article IV because that applies to states. Justice Thomas flirts with the idea that the Citizenship Clause of the Fourteenth Amendment, which says all persons are citizens, then incorporates some kind of anti-discrimination principle, picking up on arguments made by Akhil Amar and Ryan Williams, I don't think that's right but there is a close cousin of that argument that might be more plausible that might be based more on the general law rights of citizens. We usually think about those in our federal law. I guess my answer is probably not, but maybe. But I'm more of a structure guy than a lot of people. So, to me, the idea of having two very different roles for the federal and state government actually makes a lot of sense, because they're very different governments and have very different purposes and roles in our country. But not everything is that way anymore.
Dan: Well, we'll see. Your intuition is that the court is not going to bite on that, they're just going to go for the big thing.
Will: Yeah. You have the least resistance.
Dan: Yeah, the briefs in these cases are interesting because it's a huge amount of facts, like really lengthy competing fact sections about like what the universities are doing and is it excluding people and stuff like that. And then, the legal arguments, there's not much there. It's like, don't overrule or do overrule this case.
Will: Yeah, I mean, there's a little-- I will say, to Harvard's credit, we've talked about this federal/state thing and affirmative action. And for a long time, the state of play on originalism and colorblindness is, some people say the original Constitution is colorblind. Other people say, "Look at all this race Constitution legislation that they enacted at the time." And then, the first people say, "Look, that legislation is different, both because it's explicitly remedying an immediate past harm," which is a separate category and a current doctrine, and it's all federal legislation and it's not included the federal legislation even, is governed by the Equal Protection Clause.
As far as I can tell the first time, any article or brief I've read on this subject, Harvard's brief, Seth Waxman's brief, came up with two state statutes that were remedial affirmative action statutes for people of color, I think one in Kentucky, one in South Carolina. It's still subject to all the same questions, whether are they are distinguishable, are they really race based. But that was just a move that Jed Rubenfeld, Eric Schnapper-- I'd never found in any of the previous scholarship. The number of billable hours some associate must have spent combing [unintelligible 01:06:18] online to find those is amazing. So, there's a little move there but that's not really moving the needle.
Other place I found some interesting legal going on, if I can take you there for a second, is the other like, what next? So, if we ban the use of race, what can jurisdictions do? A question Justice Kavanaugh, especially was very interested in. People have talked a lot about things like, can states use or can the universities use like a top 10% plan?
Dan: We talked about this a little bit last time, right?
Will: Mm-hmm.
Dan: Just sort of more in the abstract.
Will: Can they use it even if we know? The reason they're using it is they like the fact that will give something the racial minorities otherwise aren't allowed to get, there's some potential to that. The one I'm curious whether you've changed anything about that, but I'm especially curious about something else Justice Kavanaugh introduced that I'd never heard before, which was, what about a preference for all descendants of slaves? Is that a race-neutral alternative that the university could use? I couldn't tell when he was asking what answer he wanted. I couldn't tell if he wanted somebody to say, "Of course, you can't do that." Or if he actually he was quite open to the idea that that would be a separate race-neutral form of affirmative action.
Dan: Yeah, I guess I'm skeptical that he's actually going to end up endorsing that. And it was a question to Norris arguing on behalf of the challengers of affirmative action.
Will: Yeah.
Dan: So, yeah, I honestly didn't have a handle on where he was actually going with that. Whether he was just playing with the idea or actually saying that's a thing. I mean, the other thing that I thought came up, maybe this is-- I don't mean to take you away from a question, but came up kind of related, was there seemed to be some confusion on the court about the extent to which you could still talk about race after this. There were these questions about-- I think it was Justice Jackson, who was like-- Do you remember if it was Justice Jackson or Justice Sotomayor, who was asking--?
Will: I think this is Jackson.
Dan: Yeah, I thought it was Justice Jackson saying that, "Well, race is really important to people. So, why are you having a rule that they can't talk about it in their essays?"
Will: Right.
Dan: I think, on the other side, the position that had been taken-- I think this was Strawbridge. I mean, these are really long arguments and I can't keep it all straight. Who'd said like, "Look, you can talk about race in your essay. The admissions officer can consider it to the extent that it shows the story about how you overcame discrimination or something." The thing they can't do is just say, "We're going to admit you because you said you're this race."
Will: Right.
Dan: Well, [crosstalk] confusing.
Will: This got very confused. We have one version of this rule, which looks more like Grutter or Grutter squared, would be, you can't have a box that asks people their race, but you can have an essay where people talk about their race, as long as they put it in context. I don't think that's quite what the challengers were saying. I think the idea was even once you put it in the essay and put it in context, I think the idea was the universities still have to treat it in a race-neutral fashion.
Dan: Yeah. But they could say like, if you're telling a story, "I overcame this adversity because I was discriminated against." And I think the point is, anybody of any race could tell story like that depending on the environment which they grew up in, so you're not crediting them for their race, you're crediting them for the fact that their race put them in that situation to overcome adversity.
Will: Right. But then, I think it is sort of discovery about whether when Asian students write about overcoming discrimination against Asians, or Jewish students write about overcoming anti-Semitism, do you give them the same bump or do you systematically treat Jewish students overcoming anti-Semitism as worthy of less of a bump than black students overcoming anti-black racism? I don't know if they fully sort of got off the ground on that. There was a lot of confusion about that.
It does also raise the general question of whatever the Supreme Court says, how is this actually going to be enforced in practice, because there are a number of states that have bans on the use of race and admissions. That's clearly changed what happens in the States, but it's not clear it's led to absolutely no consideration of race and admissions. And so, you can imagine that depending what happens, there's going to be follow on litigation about how is Harvard using these essays and are there systematic differences in how they grade some essays than others and so on. And I wouldn't be surprised to see the Supreme Court say something like, having a box people check their race that the admissions officers can see is prima facie evidence of race discrimination. Like there's no good reason to ask that and for admissions officers to know that.
Dan: Yeah.
Will: In the way that we handle like a lot of other interview situations where I think the guidance is often under Title VI, don't ask job applicants a bunch of questions about their religion and family status. Even if you aren't going to use it, just don't ask them because that raises the specter. So, I think we might end up kind of micromanaging the admission process.
Dan: Yeah, maybe where it lands is they will just tell people not to discuss it. Other thing that came up, Justice Kagan's question in the UNC case to Strawbridge sort of said, "Look, right now, when universities, if they are applying gender-neutral standards in admissions, they're ending up with a lot more women," and that's a trend. And this is true, it's a true fact. And she says, "Assume that continues to be true, and so you end up with men being 30% of a class." University said that's neither healthy for university life nor for society that men are so undereducated. Could university put a thumb on the scales and say, like, "We need to gender balance a little bit more"? This is something I'd wondered actually because the politics on that maybe cuts in the opposite direction, whereas conservatives, maybe would prefer that there be more men admitted to these universities, at least some of them might. We don't have a clear answer on that. Strawbridge says, "Well, look, you do have a different constitutional standard under the Equal Protection Clause for gender discrimination versus racial discrimination. Race gets strict scrutiny. Gender gets intermediate scrutiny." So, maybe that would be okay.
Will: Yeah, I think he said, "We're happy for it to go." I don't think he was particularly interested in defending it. But descriptively, it might be different. Yeah, that's implausible, and I agree with you. It scrambles things in an interesting way. Then, I've sometimes seen the suggestion also then the reverse problem sometimes occurs on a Title IX, where there are different treatment or different resources to sports teams for men and women in questions of what does it mean to equalize on that front, and you can imagine that the college admissions inputs are also relevant to that. So, I guess I could see a series of follow-ons about sex and college coming up as well.
Dan: Yeah. I feel the merits are what they are and they seem to come down a lot to your deeper political ideological commitments. And so, I don't really see much interest in litigating them here. In terms of legal stuff, the only other thing we didn't talk about was the standing argument in the UNC case. So, I think in terms of the underlying question in the case, it seems to turn a lot on deeper, ideological, moral commitments as much as anything. There are some legal questions floating around about the original meaning. It does seem like this is a blue-red kind of question. For that reason, I'm just not as interested in us talking about the merits and more trying to find the weirder legal stuff to talk about. There is one other legal-ish thing in there, which is the standing argument in the UNC case. Can you walk us through that?
Will: Well, as you mentioned at the beginning, the plaintiff in this case is not a person. The plaintiff in this case is an association, the Students for Fair Admission, which is interesting. As a matter of sort of black letter standing law, this is fine. So, organizations can sue and they have standing if any of their members have standing. And so, like the Sierra Club brings environmental law claims, and it says, "Look, here is Carla and she loves going to see the mountains and so that's why we, the Sierra Club, have standing." That's basically what Students for Fair Admission has done. They say they have members who are Asian-American students who want to compete on a level playing field which is all you need for standing, and that's enough of an injury.
Dan: You don’t necessarily have to show you would have gotten in but for--
Will: Right. You just have to show that the process was unfair. It's sort of like your harmless error analysis earlier. If you show that the discrimination affected the process, you don't have to show that you yourself would have prevailed that retrial or the equivalent. But the whole thing is an end run around a bunch of other principles of litigation. We're pretty strict in the federal courts against allowing anonymous or pseudonymous litigants only in extreme circumstances. But doing it through organization lets you effectively have synonymous litigants. So, we don't know who this person is, which allows them to avoid a lot of personal blowback. But again, it's not the only thing you do. It also lets you avoid limits on class actions because normally, if you have a particular person, you got to worry about mootness, as the case goes on, this person is still [unintelligible 01:15:52] injury, but he has an association and you got a floating set of people who might be the candidates, you can do that.
There's something uncomfortable about the associational standing taken too seriously. And I think North Carolina, without quite confronting that straight on, was trying to poke some holes in that or trying to pick up on the discomfort we might have with that. They also suggest that at the time that Students for Fair Admission was first created at the time of filing lawsuit, which in theory is [unintelligible 01:16:31] was standing, they hadn't fully gotten all their ducks in a row to show whatever you need to show that you're a real organization and that you [unintelligible 01:16:38] work and all that stuff. There was no interest in this argument. I think literally [unintelligible [01:16:45] mentioned. And I guess, especially now that maybe it would affect both cases, maybe it only affects North Carolina case, I'm not sure but I take it it's not going to go anywhere. It may not even get a footnote. But I did think it was weird and worth talking about.
Dan: Yeah. But again, the court wants to get to the merits here, right?
Will: Yeah.
Dan: And they're not going to stop and worry about-- get into the details or the factual findings or any of that stuff. This is going to be about Grutter, up or down.
Will: Yeah. I think maybe there'll be a footnote and whatever it will be in Justice Thomas writes, saying, "In an appropriate case, we should consider whether our associational standing principles are consistent with the federal rules of procedure, but nobody has raised that here and I'm going to ignore it."
Dan: And it's a conservative organization. So, let's not worry about it right now.
Will: Is that the rule?
Dan: It's realpolitik, but maybe not. Yeah, the other thing I want to say about this is I do think this case is like a little bit of a microcosm of conservatives versus liberals in the sense that it shows you part of why liberals sometimes lose these battles in the broader intellectual battle for law student minds, which is-- the Conservatives just have a very simple rule. It's very simple. It's like, "You just can't do it. You can't look at race, up or down, doesn't matter, trying to help, whatever, you just can't do it." Whereas the position that I thought was very well argued by the universities in this case, it's like, well, you can use it as a plus, but not a minus and it can be the holistic review but it can't be that-- it's really hard to exactly find a simple rule. And I'm not saying that's not reason why it's wrong, necessarily. But in general, in these constitutional cases, the conservative position is, this is what it means, it means this thing, and it means a no. And the liberal answer, which I think is at least more consistent with post founding constitutional practice is you look at different things. There's some original meaning stuff and you look at precedent, and you look at other stuff. But that's hard to explain and it's hard to give that a catchy title as a theory. And so, the other thing, the simple thing ends up being more persuasive to people. I don't know if there's a solution to that that liberals can offer, but it just is what it is.
Will: I don't know, I think there is a simple version of the message the liberals had, which was, "Trust us. Trust our institutions." The simple message is, "Look, this is Harvard and University of North Carolina. These are flagship universities with tons of people who've done this for decades." And SG Prelogar's arguments were heavily focused on like, "Look, the military and Fortune 500 companies need this." It was very conservative in the sense, very like Chamber of Commerce, US military, like, "Just trust us. We need to do it this way." That is a simple message. It's not a message that resonates a lot with the Conservatives today.
Dan: And that does flag something else that we didn't really talk about, which is the federal government's asserted interest is we need to be able to be race conscious in the military because otherwise, we're going to end up with a very unrepresentative military hierarchy and that's really bad for us. Which I certainly find plausible that that is going to be a serious problem, or that is something that the military needs to be concerned about in terms of troop morale and good relations and stuff like that. And so, we'll be interested to see what happens.
Will: What is interesting, I think, the Chief especially pushed this idea that a couple times and said, "Well, couldn't we say that the service academies are just not obligate in this case?" And then, she was torn, whether to say-- you want to say, "No, they are implicated. So please don't really [crosstalk] in this case. We also don't want to forfeit the ability to litigate that later." I will just note that if the court went sort of my route and said maybe the federal government is different, that would be one way they could reserve the service academies.
Dan: Yes.
Will: I'm just saying.
Dan: But I can't imagine this administration wants the court to do endorse the proposition that Equal Protection Clause doesn't apply to the federal government. But some administrations would.
Will: Yeah. Well, they might take it if-- I don't know.
Dan: Yeah.
Will: [crosstalk] -the question, once they lose this case, the only option to save federal affirmative action programs is to try to argue that.
Dan: Okay. Well, a lot more we could say about that and I'm sure we will circle back to it when the opinion comes down, but we've gone on for pretty long this episode. So, any closing notes?
Will: Well, prediction, 6-3?
Dan: Uh, yeah, I think so. I think 6-3. I can imagine someone's putting off-- Maybe Gorsuch does your statutory thing. [crosstalk] On the bottom line, it's this is-- because we know Chief Justice Roberts is-- So, this is a set of issues he seems to care a lot about, colorblindness, based on parents involved, the kind of school integration case.
Will: All right. One more prediction question. What are the odds that the majority opinion contains the quotation, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race"?
Dan: It's a pretty high.
Will: Yeah, 80%?
Dan: Yeah. We probably know what's going to happen. It might take a while to spin out, probably will be like a super long opinion with lots of separate opinions, vociferous dissents, but this is a thing that you've actually said multiple times on the show, which is this will be a bold, conservative change of law, the kind of thing that you can group with Dobbs and other cases where the court is like, "We've got the majority now, let's change it." But the political valence on this may cut differently. This is actually affirmative action is not popular in terms of public opinion. And so, there will be very vociferous pushback from a large segment. But the majority may increase, burnish the court's reputation, just depending on how that plays out.
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Will: Never.
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