The Court hasn't done too much while the summer recess drags on, but we're back for what might be our last episode of Season 3 before Season 4 kicks off with the new Term. We manage to piece together an episode with some items from the mailbag, some SG gossip, and a few shadow docket happenings.
The Court hasn't done too much while the summer recess drags on, but we're back for what might be our last episode of Season 3 before Season 4 kicks off with the new Term. We manage to piece together an episode with some items from the mailbag, some SG gossip, and a few shadow docket happenings.
[Divided Argument theme]
Will: Welcome to Divided Argument. An unscheduled, unpredictable Supreme Court podcast. I'm Will Baude.
Dan: And I'm Dan Epps. So right before we turned the recording on, Will, you were asking whether this would be the final episode of the October term 2022.
Will: For our podcast?
Dan: Yes.
Will: Right. This is a little-known fact about the court is that we think of the court's term as ending issue all the opinions, but they still remain in their old term that summer until they start over.
Dan: The whole idea of the October term is silly. I mean, it goes back to when the court would have multiple terms, but now there's just a continuous term. There's not like a secret recess period where you can do stuff without the court being able to do anything about it.
Will: Right. Well, I think until-- this is in Steve Vladeck's book on the shadow docket, I think until the 80s summer was separate and so different norms applied during the summer, like the court-- you wouldn't expect to get the court together over the summer, so you'd have more in-chambers activity and stuff like that.
Dan: You'd have to go to the base of the mountain in Washington State to find Justice Douglas.
Will: Whereas now the court's always able to cobble together a shadow docket ruling.
Dan: Back in 1801, Congress could just cancel the term and keep the court from sitting for an extended period.
Will: Could they still do that? Could they still just cancel the October 23 term?
Dan: I assume that the court would say that's unconstitutional. I don't know what that would mean, to say that there's no term.
Will: Just no--?
Dan: Does the court can't issue orders during a period? I don't know.
Will: I think it could still issue orders, but it couldn't sit.
Dan: But couldn't physically sit.
Will: Yeah, [crosstalk] oral[?] argument.
Dan: That would become meaningless, right?
Will: Well, it would mean that either the normal response with the court would be to hold all the cases on the docket. Like Congress said, "Look, your docket's not that full. We're not going to waste money on a half full docket, come back later. But then the court could presumably try to just deal with them all by summary reversal or something.
Dan: Yeah, I guess. But I guess back in the day when the Jeffersonians canceled the Supreme Court term, that had the effect of actually stopping the court from doing anything on the merits. I guess-- was it the 1802 Judiciary Act that undid the 1801 Judiciary Act? [Will chuckles] I wrote about this in a jurisdiction stripping paper, but I haven't gotten the years.
Will: I forget the name. I mean, those years line up, so I don't remember-- 1801 is the one passed by the outgoing [unintelligible [00:02:48].
Dan: Then, that prevents the court-- The court just can't do anything.
Will: Well, I don't know what the shadow docket powers of the court were in 1802. That’s an interesting--
Dan: Could the court have just without hearing an oral argument summarily struck down features of that second, the 1802 act?
Will: This is way too interesting a question for me to just start freelancing it. I think there might have been-- [crosstalk]
Dan: Don’t we do that on all questions?
Will: Well-- [crosstalk]
Dan: Some more than others, I guess. Some you know stuff about and then I'm just trying to catch up.
Will: You don't normally ask questions this interesting, Dan.
Dan: That was a good one. You don't normally get dunks that good in, Will.
Will: Fair enough. Like, maybe they could have issued single Justice rulings, like an in-chambers opinion, but I'm not sure about a collective opinion.
Dan: Yeah, I don't know.
Will: Anyway.
Dan: That would be good to know. All right. Other sort of smaller stuff before we get to the meat of the episode. This will be a slightly less meaty episode just because the court hasn't done much recently, and I think--
Will: And we're going to let that stop us for once.
Dan: Yeah. I think we've gone through the opinions from last term that we want to talk about. I'm sure that there's more some people would want us to dig into, but I really think we hit the highlights, even if late.
Will: Yeah.
Dan: So, maybe turn to some feedback a little bit. Now, one thing we've gotten from a couple of different sources, we got on X.com and in our podcast reviews is complaint about vocal style, specifically that we are trailing off a little bit too much. I have listened to the episodes. I don't really like to listen to the episodes because I just find it too cringeworthy. But I do think this is a fair criticism.
Will: Wait, when did you start listen to the episodes, Dan?
Dan: Well, I listen to, like, five minutes of them sometimes to try to figure out what the title is going to be. I don't think I've ever listened to one all the way through. Someday.
Will: But I listen to them all, multiple times.
Dan: All the way through?
Will: All the way through, multiple times.
Dan: Multiple times? What do you get out of that second and third listen?
Will: I get to laugh at all my jokes again.
Dan: So, you don't get to laugh very much.
Will: Ooh.
Dan: There you go. That was just revenge for the earlier one.
Will: That's fine. That's not bad.
Dan: Yeah, that was pretty good. I am going to do my best on this one. It's hard because if I have a lot of ums, the editor can clean those up a bit. But trailing off is not something that is fixable in post, as we say in the biz. So, I'm going to look out for that. Hopefully, you can look out for that.
Will: I'll do my best. Our episodes sometimes kind of trail on.
[chuckles]
Dan: Trail on or trail off? There's trailing on and there's trailing off. Those strike me as pretty different.
Will: They might be correlated.
Dan: Maybe because our voices are just getting tired.
Will: Yeah.
Dan: That's possible. What else? A little bit more--
Will: [crosstalk] -a review I liked. I think it's currently the most recent review on the Apple Podcast Store.
Dan: From Rob in MA, presumably-- [crosstalk]
Will: "Invariably, the first 15 minutes or so of your podcast reminds me of the opening schtick by Click and Clack on Car Talk. But once you get down to the nitty gritty, it’s a fascinating insight into the court and the cases. Keep up the good work." I take the Car Talk thing as a compliment. I used to listen to that show all the time.
Dan: Yeah, people love that show.
Will: I thought so.
Dan: And I think that they love the banter. But the "but" in that review makes me think that's meant as a criticism.
Will: Yeah.
Dan: I will reiterate though that there is a fast forward button on your podcast app, and you can just keep hitting the 30-second skip until you get to the fascinating insights into the courting cases.
Will: I mean, to be fair, Dan, many people pointed out that you have to hit 30-second skip button a lot of times.
Dan: Okay, Will, I'm sorry, we're working out your thumb. Too bad.
Will: Also, we got several substantive emails about our treatment of Coinbase last episode suggesting that we were wrong and/or didn't know were talking about.
Dan: Really? Did I get these or were they just sent to you?
Will: I meant to forward you one.
Dan: What was wrong?
Will: Well, to reiterate, Coinbase is the case about the so-called Griggs principle about can a district court work on the thing that the appellate court is also working on? And what everyone pointed out as part of maybe what made Coinbase harder is that it's not a straightforward application of-- the normal Griggs version is the district court can't undo the order under review while the appellate court is working on it. But in these cases, the district court's not trying to undo it. The district court has just said, "I'm not going to send the case to arbitration. I'd like to go forward." And the question is more like, it's more like qualified immunity, where you do have this stay automatic appeal thing where it's like the district court has said, "You think this case should not be in district court at all. I think it should. Therefore, I'm going to go forward. But because it's a right that we care about a lot, we might want the district court to hold its horses.”
Dan: I guess I don't understand that distinction. If the order under review is about whether the case can go forward or not, isn't it sort of interfering with the court's jurisdiction to say, "I'm going to go ahead and let the case go forward as the district court"? How is that different?
Will: I guess the classic interfering at the court's jurisdiction is where you start trying to reconsider or vacate the order while it's pending, like the Moore v. Harper problem.
Dan: Yeah.
Will: This is more like, even when the district court issues a final judgment, they get to go ahead and go consider attorneys' fees, even though it's possible that the plaintiff shouldn't have won at all and there shouldn't be attorneys' fees. All right, maybe you're not buying this distinction.
Dan: Well, I might have bought it if the complaints were sent to me, but just as channeled by you, finding it a little bit less persuasive. But maybe it's right. So, let's see. Is there anything else from the reviews? What about this one? "Originalism is bad, this podcast is great," from Baconloveit13. "This is a great podcast and I’d recommend it. Will faithfully recites the creed of the holy brotherhood of originalism at all opportunity’s. Dan’s just kind of there. But it’s fun, calming, rational, and nice. I spend a lot of time while listening that Dan is right and Will is wrong. But Will is the extremely smart, well-reasoned, kind of wrong." I think there's a word missing there. "And that’s what I want in a law podcast." That's pretty good. Do you think that's fair. I'm just here for the ride.
Will: [laughs] Well, they also say you have very strong views, so I didn't understand the theory. No, I mean you--[crosstalk]
Dan: I don't feel like I'm reciting the holy creed of, I don't know, living constitutionalism or legal process school.
Will: What is your holy creed, Dan?
Dan: I'm not sure. I think I may be anti-holy creed. I think my holy creed is like, "Let's be reasonable and do stuff that more or less resembles what we've been doing." I mean, I think maybe it's David Straussian Common Law Constitutionalism, which has always struck me as certainly the best descriptive account of what the court did for the last very long period of time, maybe the whole run of American history, but at least a good chunk of it where the court is at one point maybe it starts with the Constitution, but then really it's building on the cases in a more common law method rather than digging down to the first principles in every case, which is what you want them to be doing.
Will: They've always been originalist, Dan.
Dan: [chuckles]
Will: [crosstalk] -say a constitutional atheist. You don't have a holy creed--
Dan: I'm not sure that's maybe more agnostic would be the--
Will: A Constitutional unitarian?
Dan: It's possible. I'd have to think about that. I do like that it was the Holy Brotherhood of Originalism, because I'd say, like, 98% of originalists are male. Is that fair?
Will: Of originalist law professors? Maybe--[crosstalk]
Dan: Just originalists in the wild. Like, if you ever see like a gathering, fed soc gathering originalism conference, it's like 98 white guys.
Will: Yes. Among our students, it's definitely not 98%. I'm not even sure that's a gender skew, but it's definitely not 98%.
Dan: Okay, well, I can't falsify that.
Will: President of Federalist Society is a woman, often is.
Dan: Maybe at Chicago, you are particularly persuasive.
Will: We just admit the best people there.
Dan: [chuckles]
Will: I enjoy reading these reviews because at the moment, I'm getting so much stuff on Twitter about how I'm this left-wing hack who worked for the Biden administration, and so I enjoy being able to read the reviews about how I'm actually a right-wing hack instead, which I find a little more refreshing. [crosstalk]
Dan: Yeah. I've always thought that if you're getting flak from both sides, maybe you're doing it right. It also could just mean you're an idiot.
[laughter]
Dan: But it at least is possible that it means you're doing it right, that you're not a hack.
Will: It's a thin line. Yeah, sometimes everybody calls you a hack, and maybe they just all-- that you're a hack.
Dan: One reviewer said that I goad you into defending various positions, and you respond with the kind of whataboutisms that only law professors can tolerate while declining to offer his own views.
Will: Do I decline to offer my own views?
Dan: No. I think that there are situations where I say, "X is ridiculous," and you sort of say your catchphrase on the show, which is, "Well," and then you offer the counterargument without saying that's clearly what you agree with.
Will: But it's Justice Alito.
Dan: You're saying you don't necessarily agree with Justice Alito-- [crosstalk]
Will: I frequently don't agree with him, but I feel like 98% of the criticisms of Justice Alito are also incomplete or wrong, and so I have to stand up for him.
Dan: This reviewer flagged our conversation about when Justice Gorsuch said the COVID policies were the greatest civil rights violation in the nation's history or whatever. Civil liberties violation.
Will: Yeah.
Dan: And you were a little bit-- you were like, "Well--"
Will: I tried. You're right. It's fair.
Dan: Okay, enough of that. Other small things. Oh, actually, we just got an email, like two minutes ago. You want to try to just deal with it in live?
Will: Sure.
Dan: This is from Benton Duncan. It says, "What would it take for the Supreme Court to actually rule whether a district court or court of appeals can or cannot issue a nationwide injunction? Seems like they've never confronted the issue because they're settling the case or rejecting it on the merits, not resolving whether an injunction is valid. Would it take someone in a different jurisdiction defying the order and being held in contempt? I presume that would be a pretty risky maneuver." [crosstalk] Yeah. So, I don't think it necessarily would take someone defying an order, and I'm not sure that would work. We have the collateral bar rule which, as I understand it, as I remember it, means that even if an injunction is improper and shouldn't issue and is even unconstitutional, you don't get to defy it and then challenge it later.
Will: There would be an interesting wrinkle if you claimed that it was jurisdictional, if you claimed the court didn't even have proper jurisdiction over me.
Dan: Rather than just being something I shouldn't have issued on the merits.
Will: Yeah. We'd have to have a wrinkle about whether that would still not be--[crosstalk]
Dan: Because that's your theory. You're allowed to ignore court orders issued without jurisdiction.
Will: Yeah. I think everybody agrees you are at some level, but under modern doctrine, if the jurisdiction has been fully and fairly litigated, then you owe deference to that determination of jurisdiction. But I think everybody agrees if there's some order that could be issued with the Northern District of Texas where the administration would just be allowed to say, "Who the hell is this?"-- Like, without even a case, if Reed O'Connor just called up the White House and said, "I'm going to join in the rest of your term," I think they wouldn't have to appeal it because they could just be like--
[laughter]
Dan: I don't know.
[laughter]
Dan: The Fifth Circuit would vacate in part, affirm in part, modify slightly.
Will: Yeah. The question is right--[crosstalk]
Dan: They'd be like, "Your term has to end in late 2023 rather than September."
Will: Maybe they're going to find he violated Section 3.
Dan: Hmm, that's a danger.
Will: It is right that once the court gets a lot of these cases on the merits, once it's decided the student loan program is valid or not valid, it sort of no longer seems relevant what the scope of relief should be, and that’s I take what the email is getting at. That said, the court has had these shadow docket cases where in theory would have been the perfect vehicle for deciding the nationwide injunction issue. I think we talked about ghost guns, maybe in the last episode. Where, in theory, there's a nationwide injunction adjoining something. The court gets a request to at least pare down the nationwide injunction part before or until it gets to the merits. In theory, that would be a great vehicle, and in theory, maybe the government would need to tee that better. Maybe the government should bring one where it says, "We're not currently asking you to reconsider the merits. We're happy to comply as the plaintiffs, but please, at least vacate as to everybody else or something." They don't really want to do that.
The other place I thought-- do we ever talk about this case now from like a year and a half ago, Arizona v. City and County of San Francisco?
Dan: You think I can remember cases from a year and a half ago?
Will: Well, apparently not.
Dan: But that does sound familiar, actually.
Will: This was like a whole complicated procedural back and forth where a Trump immigration rule is being challenged, and the Biden administration decided not to defend it because they wanted to repeal it anyway, but they didn't want to have to go through notice and comment. So, they're like, "Well, we'll just let it get struck down by the courts." And then, Arizona tried to intervene because they were like, "Well, you shouldn't just let this end run." And then, there's another case pending in the Seventh Circuit, and the court ends up DIGing it because it's just like a complicated morass. But during oral argument, which was by Brian Fletcher, there was this amazing moment where Justice Kagan was pushing the government on their positions, you know why if we let the government do this, this won't make sense? And she had it seemed like she boxed in the SG in this way she can do until Brian Fletcher pulled out this sort of move. He was like, "Well, actually, this is really easy. All you have to do is hold that there's no such thing as nationwide injunctions and all the problems are solved." Because it was like a sort of complicated constellation of relief.
And it was clear she was angry. Angry is too strong. It was clear she recognized that it was not something she wanted to do. It was a fair point, but it's not something she wanted to get into. And that sure enough, they end up DIGing the case later. So, I feel like there are these places where if the court had something to say on this topic, it could say it. And I don't know, they must not know what they want to say. There must be a block of Justices who don't want to say these are totally fine and normal, but who don't want to get on the Gorsuch train.
Dan: I guess so. Or maybe they don't like them when they're enjoining things that they like, and they do like them when they're enjoining things they think are bad.
Will: Yeah, they could say that though, couldn't they?
Dan: [chuckles] Not in those terms.
Will: [laughs] Why not? [crosstalk]
Dan: Well, I mean, they can. That would be violating one of the Pozen and Samaha Anti-Modalities. You know this article?
Will: Yeah, [crosstalk] is that?
Dan: It's a cool article. Basically, there's this phrase in con law about the modalities, and these are the different ways you're allowed to make constitutional arguments. Text structure, history, precedent, and so forth. And then, this article identifies the anti-modalities, the things that you're not allowed to make arguments.
Will: I think that seemed like they should matter. It's like we all think you should care about which political party would this help or whatever, but judges are not allowed to say them. Things that the judges are required to close their eyes to, that we're allowed to consider.
Dan: Yeah.
Will: So, you're right. A ruling that said what we imagine many people think nationwide injunctions are good when they're on my side and bad when they're on your side would violate-- there's anti-modality of totally asymmetric partisanship or something that that violates.
Dan: I mean, unless they could phrase it in some slightly more persuasive way.
Will: Right.
Dan: Okay. A couple pieces of superficial news, and then one thing that's slightly more substantive and interesting. Something we never talked about from last month, is Solicitor General Elizabeth Prelogar eats five or six bananas on an argument day.
Will: Uh-huh.
Dan: That's a lot of bananas. I don't think I could eat five or six bananas. I think I would throw up. What would you eat on your oral argument day if you were Solicitor General in the Healey administration. I'm just going to assume this is bad news for you. You probably hadn't thought this through, but I'm assuming that you're probably not going to be considered for high offices during the Trump administration, given that you've taken the position that Trump is constitutionally ineligible to be president if he gets amnesty because he--
Will: Well, if he gets in, we'll see.
Dan: It's two-thirds, right?
Will: Yeah.
Dan: If two-thirds of Congress awards him amnesty, then you're all good and you're in.
Will: Yeah.
Dan: Okay. Well, what would you eat for breakfast?
Will: Coffee.
Dan: You would go no breakfast, coffee.
Will: A small piece of toast. It's my usual running-out-the-door breakfast. I assume I'd be moving on. I wouldn't be eating six bananas.
Dan: Yeah, you might want to load up on some carbs or something to be-- because especially given that the arguments now can last infinity amounts of time. They just go until they're tired of you.
Will: Yeah. I'm an eggs guy [crosstalk] breakfast.
Dan: Eggs are good. One time when I second-chaired a Supreme Court argument, I had some corned beef hash and eggs. That was great. I don't know. Not sure I would have had that meal. That was at the Supreme Court cafeteria. Not sure I would have had that meal where I argued. Okay, so that's one SG piece of non-substantive, fluffy trivia. What about this one? Did you see this one? "Former Acting Solicitor General of the United States, Neal Katyal, narrowly escaped certain death at Burning Man."
Will: I might have seen this. Was this on Twitter?
Dan: This was on X.com, as we say now, formerly.
Will: Nobody says that, Dan.
Dan: [laughs] It's really annoying. It's very confusing. They've taken away all the Twitter branding everywhere, but so things got dicey at Burning Man because of heavy rain, near flooding, very, very muddy. It was turning into a Lord of the Flies type situation. And Neal was apparently there. I'm not sure what he was up to, but he tweeted out that he said, "It was an incredibly harrowing six-mile hike at midnight through heavy and slippery mud, but I safely got out of Burning Man. He had never been before, but it was fantastic, with brilliant art and fabulous music, except for the ending." And then, it's a little complicated to say how this tweet was received. He included in the tweet some pictures, one of which was him in his Burning Man attire, which included a painted hat with the pinwheel on top, a shirt with a bunch of weird art with dolls and then a gold chain necklace. At the end of it was an extremely large it looks like maybe like a ceramic head of a screaming clown or something.
Will: The hat-- [crosstalk]
Dan: It was a little not what I was expecting, and it got some uncharitable folks on the X mocking the outfit and the claim that it was a harrowing six-mile hike. But it would have been a shame for Supreme Court advocacy had he not made it out. I do think Neal is one of the best Supreme Court advocates in the business. He's had some really successful oral arguments. So, congrats to him on surviving.
Will: Yeah, I think the Twitter threads then evolved-- he started giving people advice on how to put plastic bags over your feet to keep your feet dry because the mud is going to leak into your boots. And then, other people said that would give you trench foot and then he acknowledged that maybe that was true. He wasn't sure, but the people at the park had told him to go with the plastic bag route.
Dan: It got a little bit more interesting than that. Did you see he got quote tweeted by Jeff Clark, Jeffrey Bossert Clark, the former DOJ official who tried to basically take part in a coup?
Will: Possibly a rebellion covered by Section 3 of the Fourth Amendment?
Dan: Quite possibly. Remind me, did you come down on him being disqualified?
Will: He's on our list of people who deserve serious inquiry.
Dan: And he quote-tweeted this and he said-- and he's currently a criminal defendant down in Georgia. He says, "Why am I not surprised that Neal Katyal made it a priority to get to a neopagan ritual? Pray that these folks come to the light and realize that the only path is through and to our Lord. We are all fallen and need God and to repent as a nation."
Will: I will say, while there were many different aspects of the sort of the criticism of Neal, the argument that he was a bad Christian was not in good light.
Dan: Yeah, because as he pointed out in his own quote tweet that he's a Hindu. That went in a direction I wasn't really expecting. So, yeah, any other like [crosstalk] former SG trivia in the last month?
Will: Mercifully, I can't think of any.
Dan: Okay, we're probably forgetting something. Oh, SG foods. I was told that former SG Don Verrilli always makes a point to have fish the night before an oral argument. The idea I guess fish being brain food.
Will: Really?
Dan: That's what I was told one time. I have no idea if that's true.
Will: Does it work that way?
Dan: I doubt it. It sort of seems like you should be eating fish, like during maybe at least during the refrigerating process or something. I don't know if that's true. Someone who worked in the Verrilli OSG maybe can chime in and let us know whether that's true. Oh, one other non-substantive thing. We had sort of questioned whether a Supreme Court Justice had ever appeared on a podcast. Justice Sonia Sotomayor, when she was promoting one of her books, appeared on Conan O'Brien's podcast. So, whoever appears on ours will not be the first.
Will: Yeah, I feel like Conan O'Brien's is a little big to be a podcast.
Dan: Yeah. Has any Justice appeared on a law podcast?
Will: [laughs] There you go.
Dan: Slightly more substantive one. An OSG alum, friend of the show, Zack Tripp, wrote to me in the wake of our discussion of the Spending Clause and individual causes of action, which is something that came up last term and told me about a case he's got, which is called Landor v. Louisiana Department of Corrections. This case has actually been decided since Zack wrote me, but the plaintiff is a Rastafarian who under RLUIPA, which is the Religious Land-- do you remember--
Will: Religious Land Use and Institutionalized Persons Act.
Dan: Yeah. So, it's something Congress drafted the Religious Freedom Act that was partially struck down as exceeding its powers under the 14th Amendment, and then came up with this new statute that imposes sort of religious accommodations requirements on various kinds of entities that receive funds from the federal government, including prisons. And this plaintiff is a Rastafarian. As part of his religion, he's not supposed to cut his hair. He had very long dreadlocks. He was in jail and brought with him, actually, a copy of a Fifth Circuit opinion sort of saying that there's a religious right to have dreadlocks in prison, and these prison officials threw it away and forcibly shaved his head. So, everyone recognizes this, this seems to be like an egregious violation of federal law. Just yesterday, the Fifth Circuit issued an opinion saying he cannot sue the prison officials who were involved in that because as they read the statute, there's no individual cause of action for damages.
Will: Right. So, it's not a qualified immunity case. They just conclude that RLUIPA does not let you sue individuals for their violation--[crosstalk]
Dan: Under the statutory claim.
Will: There are a lot of cases that say this, and they've always seemed wrong to me. And then relatively recently, like a year or two ago, the Supreme Court took a case about this and said they were wrong. But the case is about the Religious Freedom Restoration Act, RFRA. So, there's a question of, if a federal official governed by RFRA violates your rights, can you sue that person for damages? And the lower courts had mostly said no, but the Supreme Court took it and said yes, statute lets you get relief. And that's one of the forms of relief it lets you get. But the Fifth Circuit said, "Well, okay, maybe if you'd sued under RFRA, a federal official in a federal prison, you could sue for damages. But RLUIPA is different."
Dan: Yeah, I don't know. Maybe the court will grant this one. I assume there will be a petition for certiorari forthcoming. It seems worthy of review.
Will: Yeah, I assume there will. So, the argument that it's different is this argument that RLUIPA is justified by the Spending Clause, unlike RFRA. And there's this idea that the Spending Clause is less powerful and doesn't let you impose the same kinds of direct regulations. So, maybe it can't or presumptively doesn't create causes of action. That part seems sort of like a rerun of the arguments we talked about recently in Talevski. The court had this Spending Clause statute, was like, "Is this how seriously do we treat Spending Clause legislation?" I guess you couldn't just like GVR and let up Talevski or something.
Dan: Yeah, because this is post that. But I mean, certainly the court rejected the idea that you never can bring such an action, that there are no individual causes of action under the Spending Clause.
Will: Well, the suit in Talevski is not against an individual. It's against an entity.
Dan: Yeah.
Will: And the cause of action came from Section 1983. Now, I don't totally understand why then an RLUIPA prisoner couldn't bring a Section 83 suit if that's theory. So yeah, something funny is going on here.
Dan: The Fifth Circuit did provide the plaintiff some relief in the final paragraph of the opinion, it said, "We emphatically condemn the treatment that Landor endured." And they put emphatically in italics. So now, his rights are protected because the Fifth Circuit will emphatically in italics, say that his treatment was condemnable.
Will: I'm sure when he shows that Fifth Circuit opinion condemning their conduct, they'll throw that in the trash for the other one. So, you read a lot of these, actually, opinions where the court finds no remedy. Like, sometimes it's a criminal case where they find harmless-- the prosecutor did something terrible, lied on the stand or something and then they find harmless error. But they have a section of opinion where they say, "But we condemn this. We just like to make clear we condemn this." I've always hated those. I've always felt like if you don't have the--
Dan: Have the courage of your convictions, right?
Will: Yeah. Either way, if you're going to say this is lawful, then don't condemn it. Or if you're going to say that there's no remedy, then it's not your place to condemn it. Do you think that officials care about that? Do you think there's some guard getting yelled at because the--?
Dan: No. Unless it suggests the possibility that they can be sued the next time in a case involving qualified immunity.
Will: Yeah.
Dan: Can you just bring me back to Talevski for one second because I've spent a long time-- it hasn't been that long, but now I've forgotten. Talevski is about whether you can even enforce the rights at all individually-- [crosstalk]
Will: Talevski is about, if you have a right created by a Spending Clause statute, can you enforce it using the cause of action in Section 83 at all?
Dan: Not whether there is a separate cause of action under the provision itself.
Will: Right. But those obviously are intertwined questions. And if RLUIPA does not create a cause of action, again, you might still wonder why you can't use Section 1983 to enforce it.
Dan: I have no idea. Now, this is the kind of claim where if it was brought directly under the Free Exercise Clause, I assume would run into Smith.
Will: I assume so. Although even Smith, I guess presumably it's non-discriminatory. As I said, I was going to say if it turns out they're shaving Rastafarians but not other folks, then it would violate even Smith. Or if there's other evidence of animus, like from Lukumi but presumably under Smith, prison is allowed to say, "Everybody's hair is shaved. No exceptions."
Dan: Yeah. I would like to think that if you could get to the establishing a right and just get to the question of qualified immunity, like throwing away a published appellate opinion, resolving the question should be something that means there's no qualified immunity.
Will: But it should. Although it's this funny quirk of qualified immunity that it's an objective standard rather than a subjective standard.
Dan: Yeah. Would every reasonable officer still be unaware despite being handed the opinion?
Will: Well, suppose the decision is, in theory, distinguishable. There's like some clever distinction you could make, but the officer clearly didn't make it. The officer didn't read the opinion and say, "Ah, this only applies to quarter-inch beards,” or whatever. Under current qualified immunity doctrine, the fact that the officer was flagrantly trying to violate the law is not relevant.
Dan: Perhaps you will prevail one day in convincing a majority of the Supreme Court that qualified immunity is not lawful.
Will: I'm not holding my breath down.
Dan: Okay. How am I doing on trailing off? I feel like I'm doing better.
Will: I think so, but I'm not.
Dan: I'm really working on it. It takes a certain amount of concentration. It's like trying to fix your posture, which is equally hard. You have to constantly be remembering and I have bad posture and I've been told I need to work on it. But you have to keep that in mind constantly. It's very distracting.
Will: They're elated because if you sit up straight in front of the mic, then you're less likely to trail off.
Dan: I'm standing. I have a standing desk.
Will: I admire that.
Dan: And I'm still trailing off. Okay, so should we continue our upward path towards more and more substance?
Will: Yeah. If listeners have not pressed the skip button 80 times by now, what do you want to talk about next?
Dan: So, we don't have any new opinions as such, which is good because would mean it would take longer for us to prepare. We do have some shadow docket type activity. Quick one, maybe to talk about is there had been a request made by Senator Durbin on behalf of the Senate Judiciary Committee that Justice Alito recuse in this upcoming case. We're surely going to talk about this case some more, which is about whether Congress has the power to tax unrealized gains as income or not. Arguing that Justice Alito had to recuse from that case because the lawyer bringing that case, David Rivkin, was also-- I don't really understand what he was doing, but he was like helping conduct the interview Justice Alito gave The Wall Street Journal, where he sort of hit back against critics of the court and said that Congress has no power to regulate the court at all because that lawyer participated in that interview that creates a conflict of interest because that lawyer is representing the party in Moore.
And Justice Alito said no, and he did so not in an interview to The Wall Street Journal, but actually in a statement that was attached to a routine orders list. That was interesting. He says there's no valid reason for his recusal in this case, and he says he's never had any discussions about the case with Rivkin. Rivkin was working as a journalist when he participated in the interview. Many colleagues on the court have been interviewed by attorneys who've practiced for the court. Some have co-authored books with those, attorneys and that did not require recusal.
This is interesting because, “The theory underlying Senator Durbin's request fundamentally misunderstands the circumstances under which Supreme Court Justices must work. We have no control over the attorneys whom parties select or represent them, and as a result, we are often presented with cases which one of the attorneys has spoken favorably or unfavorably about our work or character. Similarly, we receive briefs filed by or on behalf of members of Congress who have either supported or opposed our confirmations or who have made either favorable or unfavorable comments about us or our work. We participate in cases in which one or more of the attorneys is a former law clerk, a former colleague, or an individual with whom we have long been acquainted. If we were recused in such cases, we would regularly have less than a full bench, and the court's work would be substantially disrupted and distorted.”
So, here's my two thoughts. I think he's right about recusal. If the principle that was being advanced were extended, it would create this whole mess recusal, and it would allow parties to game cases by just hiring Supreme Court advocates who had some relationship of some kind with the Justices and at least under a system where there aren't backup Justices, that would be very problematic. But I say that at the same time thinking that The Wall Street Journal interview was ill advised, and it also seemed particularly ill advised to bring a Supreme Court, get that person involved. Not really clear. Not at all clear why Rivkin was involved in that. He's not like a journalist employed by The Wall Street Journal, to my understanding. But maybe he's just a friend. What do you think?
Will: He's not employed by the Wall Street Journal, but he has published hundreds of articles, op-eds, and book reviews on a wide variety of subjects, according to Alito.
Dan: Yeah, fair. But why does he need to be the guy interviewing him?
Will: Right. It's hard to know what was going on with the interviewing. It could be that Rivkin and Alito are also friends and that Rivkin therefore sort of brokered the interview, which would both explain why he's there, but then raise a new round of questions about the nature of their friendship. I don't know. Or it could be that Toronto said-- I don't know, is Taranto a lawyer? Taranto said, "I'm not a lawyer. I'd like to bring in a sophisticated lawyer for this one," and Rivkin is the guy he trusted. It's hard to know.
I don't totally understand Durbin's theory. Justice Alito sort of responds with these hilarious footnotes, as if theory is anybody who has ever interviewed you or anybody who you've ever written with can't be a counsel in any case and so he has various examples where that's not true, although some of them are a little off. Like Justice Amanda Tyler finished Justice Ginsburg's book after Justice Ginsburg died. Obviously, Justice Ginsburg did not have to retroactively recuse herself from a case three years before that in foresight of the possibility that Amanda Tyler would later do that.
Dan: Although she may have helped work on the book earlier in the process.
Will: She may have, but I'm not sure if we know. Maybe Justice Alito knows. But I do wonder, is there something special about the period while a case is pending? Now, think about clerk reunions. I don't know if you know, but if you were a former law clerk to a Justice who also has a case pending at the court, like you argued at that-- is there some norm that you shouldn't go to the reunion and interact with Justices because--?
Dan: I was never told that.
Will: Yeah, I don't think so. But you could imagine that might be the more limited thing Durbin is looking for. What worries me is it's more like normal interactions are fine, but these Wall Street Journal interviews were so freaking weird that this is like weird interactions are not fun.
Dan: It's hard to articulate. I mean, I do think that some confusion might be sort of a conflation between rules for recusal when the friend is a party to the case versus when the friend is a lawyer. That seems different.
Will: Which way?
Dan: In the sense that there's a greater obligation to recuse when you have a close relationship to the party rather than just to the lawyer, right?
Will: Yeah. Although why is that? I guess the point that people can choose whatever lawyer they want is part of it.
Dan: Yeah. I think the idea being that you can separate the fact that this has some professional advantage from your friend rather than just directly ruling for your friend in a case where their interests are at stake.
Will: Yeah. Sometimes, it goes the other way. Like, former Supreme Court law clerks can't participate as lawyers in a case for two years after they clerked. I think they could still be parties. I mean, I think if you were assaulted by the police the next year and brought a qualified immunity action, I think you'd still be allowed to--[crosstalk]
Dan: You couldn't do it per se?
Will: I guess not.
Dan: If you were unconstitutionally detained, you couldn't file a habeas petition on your own behalf?
Will: Well, wait a minute. So, the Supreme Court rule, does it say in a professional capacity or something?
Dan: Is that in the court rules or is that somewhere else?
Will: It's Rule 7. Yeah, Rule 7 of the Supreme Court rules. "No employee of this court shall practice as an attorney or counselor in any court while employed--" Okay. "Nor shall any person after leaving such employment participate in any professional capacity in any case pending before this court for two years." So, you could participate in a nonprofessional capacity.
Dan: Yeah. Okay. If anyone can come up with examples where that occurred, I would be fascinated to hear them.
Will: Cannot imagine.
Dan: Okay. But I will give some credit to Justice Alito for the format and of the explanation. I do think that transparency about these matters helps. I think it's useful that we have the Scalia opinion explaining why he doesn't recuse from a case involving Vice President Cheney. I think this is useful. I think we can build up a body of quasi precedent here on these cases. It shows a certain amount of respect. I mean, I think that Justice Alito is clearly very annoyed by all this, but it does show the public that you're willing to at least recognize that they might care about stuff like this and that you feel some obligation to explain it.
Will: Yeah. Providing an explanation like this is great. Plus, I take it if he hadn't done it in this know, his go-to alternative format would be to give another interview to The Wall Street Journal. And that just seems like it would be a little rich to give a third statement to The Wall Street Journal explaining why his previous statements to The Wall Street Journal does not require recusal.
Dan: Maybe he could have hired counsel for the other side to help him with that interview, and then it would have canceled out and no one could really complain.
Will: I think the other side is the SG.
Dan: True. I don't know.
Will: Maybe you just call in the SG and offer her a banana and talk about it.
Dan: At least six or seven. This is coming out of this Fifth Circuit case that basically the government tells the administration that it can't have contacts with social media companies on a theory that the government had engaged in sort of a pattern of First Amendment violations by encouraging, and arguably, according to the plaintiffs threatening these social media companies with deleting various posts and moderating various posts that were alleged to have misinformation in them. And this is one of these cases where a district judge in the Fifth Circuit issued a wild, broad ruling and was heavily criticized in the Fifth Circuit. Did not overturn it in part, but actually affirmed it with respect to some of the defendants, including the White House, the Surgeon General, the CDC, and the FBI.
Will: I think this breaks the pattern by not coming from the Northern District of Texas, but instead coming from the Western District of Louisiana, which is next to Texas. So, we're getting there. So, the SG says what we did is totally fine, and also this relief is then there's no standing and this is way overbroad relief. Do you have a view about this?
Dan: I mean, only the very, very knee-jerk reaction that it did seem a little crazy to be issuing an injunction like this, telling the government that it can't talk to people without having-- [crosstalk] I skimmed the opinion, but did not dig into it and certainly did not dig into the First Amendment precedent here.
Will: I think the First Amendment precedent is actually a hard question because it so much depends on how you frame it. Like, on the one hand and the government leans on this, they say, "Look, we have the bully pulpit. We yell at people and tell them what to do all the time and just hope that the fact that we're the precedent means they'll listen." But on the other hand, in this world, surely it's true that when you're a big corporation and the people with the power to use their enforcement discretion to destroy you, come in and tell you what to do, that you feel a little bit coerced to do it. And you can certainly imagine the obvious end runs where the government's like, "Well, we're not allowed to censor the speech, but we'll just threaten everybody and make them do it."
Dan: Yeah, I mean, it depends on whether what kind of threat there is. I mean, certainly if they say, like, "We are going to prosecute you if you speak in this way," that seems very troubling.
Will: Right. But even if they don't-- so the FBI might even be different from the CDC. You might think that the FBI is inherently a little more coercive when the FBI comes and says do this, that it's weird to say that the government can ask other people to do what it can't do.
Dan: Yeah, right. Well, I mean that doesn't seem weird. The fact the thing that you can't do forcefully you can't ask other people to do, you can ask people. I can ask people to do all sorts of things that I can't do myself.
Will: Yeah. Is it different when it's the government? I mean, if you said the government really wants to establish Christianity as the national religion, they're not allowed to. So just go around everybody, every private enterprise in the country and say, "Would you please say a lot of Christian stuff since we can't?" That seems-- I don't know, maybe it's fine. Maybe the sabbatical clause is different from the free speech clause part of it. My reaction is I should find the underlying problem sort of hard to think through in the abstract. It so much depends on sort of like the specific context, which makes this nationwide relief seem wildly overbroad to me and also makes the standing thing seem like confused. Like if you had somebody suing saying, "I was kicked off Twitter for a month and it's the government's fault, and the damages to being kicked off Twitter are whatever. I lost a thousand Substack subscriptions, therefore I would like a remedy." I at least understand how to think about that. And we can try to figure out why are you kicked off Twitter and what's the causation and so on.
When it's like this general, like the government should just stop talking to Twitter because maybe some people were kicked off Twitter who shouldn't have been three years ago. It seems problematic how abstract it is.
Dan: Yeah. What's your instinct about what's going to happen here?
Will: The ghost guns five will grant relief and four Justices will dissent.
Dan: All right, well, we will see. That probably won't be resolved by the time this episode airs, but maybe sometime next week.
Will: This might also be one of those cert-before-judgment cases. Like, maybe the court will just be like, "Oh, yeah, we want to get into this First Amendment issue on the merits and let's just do that."
Dan: That works. But they still would have to figure out what to do with the interim relief in the meantime.
Will: Yes, they could grant a temporary stay. That might make it easier for them to grant a stay. Say, "We'll stay relief, but we'd like to hear argument."
Dan: Yeah, I guess so. Let's see, what else? I think really just one more thing, which is coming out of Alabama in the wake of last term's Milligan case that sort of said that the way Alabama had drawn its legislative districts was a violation of the Voting Rights Act. There's now this question about how to redraw the districts and what the court's opinion requires the legislature to do. Can you help set this up a little bit more?
Will: Well. Allen v. Milligan recall was this challenge by the State of Alabama to the prevailing understanding of the Voting Rights Act Section 2, where a lot of people thought they were going against the court to abandon something called the Gingles test and make it harder to force states to draw majority/minority districts, but in the end, they didn't. And so then, the question is what happens now they've lost? And I think at the time the case came out even, Alabama was already not just rushing to draw. I guess the question is ultimately, does Alabama have to have one majority minority district or two? They would like to have one and the lower court would like them to have two. And they did not rush to draw a second. And instead, they went and re-legislated and then again came back with one, even though the lower courts had said in the previous case that the Voting Rights Act requires them to draw two or as close to two as is reasonably possible. Like maybe you can't quite get the second one to be a majority minority district but should be close. And they didn't do that. And the Supreme Court affirmed, not really talking about that very much.
Dan: Yeah, I went back and I read this fairly carefully some months ago, but it'd been a while and I have trouble keeping all the details in my head, I found. And I went back to look at it and try to figure out what the court said about the remedy. And there's not a lot in the opinion. It agrees there's a violation, but it's not at all clear what's supposed to happen next.
Will: Well, part because the court affirmed. So, the lower courts before had been a little more specific with the remedy and it said, "Alabama needs to draw one majority minority district and one other district that's as close to majority minority as reasonably possible." And then, Alabama appealed, saying, "No we don't, because we had these various theories." And the court said, "We don't like your theories." And then, Allen ended the judgments of the district court in the Caster case, in the Milligan case are affirmed.
Dan: Yeah, that's interesting. I guess in terms of a formal order, that leaves a formal order in place. But could the court's reasoning inform the scope of the relief that had been granted already going forward, or does it-- [crosstalk]
Will: Yeah. Well, that's what I'm wondering. In a lot of contexts, there's something called the law of the case doctrine that's like once you've gone up once, at some point, you sort of lose your chances to keep coming up with new arguments about why this whole thing shouldn't work. Now, sometimes, we would say, I think, “Look, if you thought that was the wrong answer on this understanding of the act, you should have appealed on that too, having sort of picked your way at your argument that the district court was wrong and lost.” You don't get to just come back with a new cert petition that says, “Okay, how about this?” It's a little different to the Supreme Court because you don't have a mandatory right of appeal. So, it could be that if they'd come in with this other--[crosstalk]
Dan: We do here, because this is coming from a three-judge district court.
Will: Oh, I wonder if that might change it too. Although some of the cases are on cert and some are not.
Dan: Yeah, there's like one coming from a single-judge district court and some coming from-- and I did not dig in enough to figure out what's going on.
Will: Right. As I understand, still the bottom line here technically is sort of Alabama is coming back with a new argument, a new-- having failed to change the scope of the Voting Rights Act, we're going to try again with a new argument why we don't have to do this. And it's a little unclear to me whether they can do that, and also unclear why they think anybody who ruled against them last time will rule against them this time. Is the idea-- So, Justice Kavanaugh joined Allen last time but with this reluctant concurring opinion saying the Voting Rights Act time is coming even if we aren't there yet, or something.
Dan: Yeah, that's a little bit of an overstatement. But I think it's not unfair.
Will: How would you correctly state it?
Dan: I think expressing some skepticism about the Voting Rights Act and its future, but I don't think clearly saying its time is coming, right?
Will: Yeah, fair enough. I mean, he says in his concurring opinion, “The authority to conduct race-based redistricting cannot extend indefinitely into the future.” He says, “Justice Thomas notes, that even if Congress can do this, the authority cannot extend indefinitely into the future.” But I think that's agreeing with that statement.
Dan: Yeah, I suppose so.
Will: But now Alabama's back. They have great lawyers and a very strongly worded cert petition saying, "No, we should[?] be allowed to do this,” but they still haven't done the thing that the that the lower court said they had to do that the Supreme Court affirmed last time. So, there's a kind of-- I don't know, a potential for either a sort of showdown here or maybe even more definitive word from the court.
Dan: I assume that the court is going to not let Alabama do this. How does this interact with your views about when courts can order states to draw new districts or draw the districts themselves because there's a special master who's in place, right?
Will: Is that right?
Dan: Yeah. Who I think presumably is going to go--
Will: Draw districts themselves soon?
Dan: Yeah.
Will: So, I think the current maps are state-drawn maps, are maps drawn by the legislature and signed by the governor, and they're just non-compliant maps. So, so far on my view, mine and Michael McConnell's view, the court might well affirm the lower court again and say, "No, these maps are still no good," and then we will at some point get to the question of, "Well, what do we do if the state just keeps refusing to draw good maps?" I think probably what the court will at some point do is draw its own maps. I am skeptical that's a lawful solution under Moore v. Harper because the legislature is supposed to draw the maps. I do think it's better-- like, there's a spectrum of things. It's more defensible if you've given the legislature a bunch of chances. It's more defensible to say, "Well, look, we tried to have the legislature draw the maps, and now we're in some weird second-best territory,” as opposed to there are sometimes when the court doesn't even really give the legislature a chance to draw the maps, and that seems worse.
Dan: Like, what is supposed to happen if the legislature just refuses to do it over and over in your view?
Will: Yeah. My preferred choice and I've not run this to ground enough to write it-- I haven't written this up yet, although I'll float it here. I think it's pretty simple. I think we just tell the state, you can't field a congressional delegation until you have lawful maps.
Dan: [chuckles] So, what happens?
Will: Nobody can go to Congress from Alabama until they have lawful maps. If Alabama is content to not be represented in Congress, they can be contumacious as long as they want to, but if they want to get back in Congress, then they got to draw some maps that a court's willing to uphold. So, the incentives are pretty well aligned, and that's what we do in a lot of other context, I think--
Dan: They could just cancel democracy?
Will: Well, who? Alabama?
Dan: Yeah.
Will: Well, it’s the house. The of the rest of the house will go on just fine. It's more like, if Alabama refuses to comply with the Constitution, then it's choosing to sit out. I mean, that's what we do-- there’s some important national security policy, and Congress enacts a statute and it doesn't work. It's unconstitutional. The courts would say, "Well, this doesn't work. If you want a constitutional statute, go enact one. We're not going to sit down and enact one for you." And even if Congress tries like three times to come up with a policy and it doesn't work, the courts don't say, "Well, fine, we'll create a special master and enact the statute for you." They just know, "Statute's unconstitutional." Maybe it's not facial, so maybe only a couple of districts are invalid. I don't know. But I just think that would be the more straightforward-- But maybe there's some reason people will tell me this doesn't work. It's obviously such a harsh remedy that people wouldn't like that.
Dan: Yeah.
Will: I also think you could do something more like a severability analysis where you just take the existing map and the minimum amount of changes to it necessary to make it lawful, like the way you would of the statute, and maybe that's okay.
Dan: Yeah.
Will: That's different from the special master.
Dan: Well, I guess we'll find out or we won't, probably won't.
Will: I was going to work on an article about election law remedies because I was starting to just between all these things to get really into it. But I saw that ALI is actually putting together a new restatement or something on election law remedies with a bunch of really good people. So, I’ll probably just wait and read that. [crosstalk]
Dan: Interesting. That's something that we can do restatements on?
Will: I think so. They’ve got to sell books, Dan.
Dan: And who buys the books? I thought they just-- people buy the books?
Will: Yeah, I think so. I think lawyers buy the books, ideally.
Dan: [crosstalk]
Will: Because they're not easily available.
Dan: Do you get them for free as an ALI member?
Will: No, I have to buy them too. I think maybe I got a discount on the website, I'm not sure.
Dan: 10% off?
Will: Or maybe I can maybe I could download them, actually. Maybe I do. I'm not sure. I'm not very good at this, but I don't get a paper copy or anything. Like, I had to find my first Restatement of Conflicts on eBay.
Dan: Yeah, the library's copy of the Model Penal Code is sort of permanently checked out to me in my office.
Will: Yeah, you got to get your own.
Dan: I don't teach crim law anymore, so I don't really need to.
Will: You're never going to teach it again?
Dan: No, never say ever but I'm going to hopefully invest in preparing con law using your book and hopefully teach that for a while. See how that goes. See how I like that. I got my second copy of your book sent to me. They had sent that to me at my house. So, I've got my home copy and my work copy.
Will: You like to do that?
Dan: Yeah. You need to have backup because otherwise you accidentally leave your copy one place or the other and then you're in trouble.
Will: Yeah, I don't like carrying stuff.
Dan: Yeah.
Will: So, I don't like to bring a bag or anything to work if I can avoid it.
Dan: It is a big book because you have stuff in there about every part of the Constitution practically.
Will: Yes. And we have several hundred pages of stuff on the First Amendment, so you could--
Dan: Which most people don't teach as part of the first-year constitutional law class.
Will: Right. There's almost enough in there to teach a First Amendment course if you wanted to as part of it. It's obviously a big area law as demonstrated by the shadow docket stuff today.
Dan: All right. Well, is there anything else we needed to talk about? I feel like we kind batted cleanup today. Got a lot of stuff out. [crosstalk]
Will: Trailing off, Dan.
Dan: Did I just trail off?
Will: No, I meant the episode is trailing. The court is trailing off. The term is trailing off.
Dan: Yeah. I guess we need to start thinking about whether we're going to preview some cases in the future.
Will: Well, there are very few cases. I'm not saying we should, but we could basically preview them all pretty easily.
Dan: No, we cannot preview them all, right?
Will: There are like 12 cases.
Dan: In terms of ones that have been granted, there are-- 1, 2, 3, 4. 5. 6, 7, 8, 9. There's like 20.
Will: Okay, fine. But like 12 have been set for argument.
Dan: Okay, fair. 12 or so, maybe 13.
Will: Yeah.
Dan: There is another big redistricting case coming up in the second week of the new term, Alexander v. South Carolina State Conference, which is about racial gerrymandering. So, that could be big. I don't know enough to know how that's going to interact with the other stuff we've been talking about, but we will maybe dig into that one and figure that out.
Will: Well, you didn't mention Great Lakes Insurance Southeast v. Raiders Retreat Realty Company.
Dan: Was I supposed to?
Will: Oh, Dan. “The question is whether under federal admiralty law, a choice of law clause on a maritime contract can be rendered unenforceable if enforcement is contrary to the strong public policy of the state whose law is displaced.” And then I think the petitioner is represented by Jeff Wall and Morgan Ratner at Sullivan & Cromwell. The respondent is represented by Howard Bashman of How Appealing fame with Adam Unikowsky on the brief.
Dan: That's an interesting one-two punch there.
Will: It's a serious showdown. Yeah. And it's a really hard case. I mean, we can wait until it comes out, but we're talking about that case for sure. That might be the biggest case to the term.
Dan: [chuckles] Not going to engage with that claim. I will engage with the case if you want.
Will: Eventually.
Dan: Do you actually want to?
Will: At some point. No.
Dan: Because you like admiralty?
Will: And choice of law. It's the intersection of choice of law, federal common law and conflict of laws, federal jurisdiction in one of these contexts that's not at all obvious. It's just a great-- and then the level of lawyering is extremely high. It's going to be a great case. Several people on both sides who were interested in asked me and Steve Sachs whether were interested in writing amicus brief, and at least my reaction was like, "Wow, sounds like a really interesting case. I look forward to reading somebody else's briefs about this because I don't have time to figure it out," but I'd like to figure it out at some point.
Dan: Okay. Well, listeners, chime in if that's the one you want to hear us preview. If there's other ones, tell us and we will consider that request with the consideration that it deserves.
Will: Hmm. All right. You want to take us out?
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Dan: Thanks very much for listening. Please rate and review on your podcast app of choice, such as the Apple Podcast Store. Please let us know if we're doing better on trailing off at the end of sentences. I'm trying really hard on that. Visit our website at dividedargument.com where we have transcripts of episodes. Our merchandise store is store.dividedargument.com. Send us an email at pod@dividedargument.com or leave us a voicemail at 314-649-3790.
Will: Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thanks for the many emails and feedback which we're trying to go through and give more attention to.
Dan: And if we don't record another episode for a long time, it's because the Fifth Circuit has told us we are not allowed to have any contact with our listeners.
Will: That’s a good one.
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