Divided Argument


Episode Summary

We're back to talk about Wednesday's decision in Egbert v. Boule and the problem of constitutional remedies. But first we catch up on the Court's pace of opinions, the leak investigation, the attempted attack on Justice Kavanaugh, and Puerto Rico (United States v. Vaello-Madero).

Episode Notes

We're back to talk about Wednesday's decision in Egbert v. Boule and the problem of constitutional remedies. But first we catch up on the Court's pace of opinions, the leak investigation, the attempted attack on Justice Kavanaugh, and Puerto Rico (United States v. Vaello-Madero).

Episode Transcription

[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: So, Will, it's been about a month.

Will: As always.

Dan: Yeah, that's not our plan. We intend to do more. Most of the delays, this spring, I think, have been my fault. I’ve just had a lot of things going on. Hoping it's getting better. So, what are my excuses? Did I already use the one that we moved houses? Did I use that yet?

Will: I think you used that one last month.

Dan: Well, that turns out that's an ongoing thing. You've got to meet with all these people that are doing stuff. But then, I also went to Spain. I’ve spent a week at the Michele Taruffo Girona Evidence Week.

Will: When you told me you're going to Spain, I just assumed this is a vacation. I didn't know you had like a junket. 

Dan: Yeah, it was great.

Will: I never have been invited to it. There's no fed courts thing in Spain or con law thing in Spain. Why is there evidence in Spain? 

Dan: No, there could be. I don't totally know. I'm not really an evidence scholar. My first paper has some evidence implications, and I guess, people in other countries had read it. And I got invited, and I got to speak in front of the [unintelligible 00:01:28] in front of all these people and eat some Spanish food. It was great. But it meant that I was not podcasting during that period of time. 

Will: Yeah. 

Dan: I'm sure-- [crosstalk] 

Will: I'm sure our listeners are upset.

Dan: Yeah, other excuses. But we're back, back for a bit. We're going to try to do as much as we can. As we march towards the end of the term, we've each got some trips, but we're going to bring our portable recorders with us and do our best. But that does raise something, before we started recording you and I were just talking about like, when is this term going to end?

Will: [chuckles] Right. Traditionally, they try to end the term by roughly the end of June. And I gather when Justice Brennan was on the court, the story is there used to be some sort of a hard stop that was like July 1st or July 2nd, or something which was the last ferry to Nantucket, I think, where justices spent the summer. You had to buy your ferry tickets, like whatever amount in advance, maybe Martha's Vineyard, I don't know, whatever one of those fancy places people go. So, he had to make the ferry. Nowadays, I don't think that's true. And I don't know how much of the Justices are back to their European summer plans this year or not. So, I don't know if I've—[crosstalk] 

Dan: Yeah, speaking of junkets, by the way, many of the Justices get these-- I'm using air quotes, which you can't see, listeners from home. I'm using air quotes for teaching gigs where they go, and I think they show up and you know, give a couple lectures and get the travel to some fancy European country, their travel and lodging and meals paid for, so great work if you can get it. 

Will: Yeah, nobody ever asked me to do that either.

Dan: Well, give it time. You were speculating that they might not even be done by the end of the first full week of July. You said they might not be done by July 8th. 

Will: Yeah, I wouldn't be surprised if--

Dan: Which it’d be quite late. In my memories, they've only hit July like once in the last in recent years. Am I misremembering?

Will: Maybe once, maybe twice. That sounds right. I think sometimes like in July 1st or something, if it's like the end of the week.

Dan: Yeah. There's been at least one where they went noticeably longer than they normally do but not a ton in the last decade, decade and a half when I've been really closely watching it. But you said you think it's going to go late predicted-- [crosstalk]

Will: So, here's the thing, first of all, they're behind. Okay, so first of all, normally, I have the numbers right here. But, normally, more of the opinions would have come out by now, by June 8th. I mean, by June 1st is normally the internal deadline when drafts are supposed to be circulated. So, you try to get a lot of things done before that. So, you can focus on the hard cases that still need to get done. And we've had just very few opinions, so they're behind. And then, I have no inside information, and I'm not calling anybody I know at the court because I don't want my phone to appear in their call logs. But I have to--

Dan: We’ll get to that. 


Will: I'm not joking, by the way. But I have to imagine that they're not necessarily getting as much work done as they normally would. Whatever is going on with Dobbs, the abortion case, plus just all sorts of disruption caused by the investigation of the leak, and the ways that makes it harder for them to operate, I have to imagine that slowing them down too. Now, one possibility, I'll just say, is [unintelligible 00:04:29] happen, it's possible that by like late June, they're suddenly going to start, I don't know, digging some cases, releasing some per curiams, like when Justice Scalia died, they were just finding ways to get out of the cases because they were possible that'll happen, but if that doesn't happen--

Dan: That was a little different, because there the court was then split four-four ideologically. And so, there were some things they probably just couldn't resolve. 

Will: Right. You can hold them over though, if you wanted to. But until then, it was unclear. Yeah, so I just think it's possible that they'll start trying to cut corners, to get some stuff out the door, but if that doesn't happen, and I think there's less incentive to do it, I think it's going to be a long one.

Dan: Yeah. So, I'm looking at SCOTUSblog. And as of Wednesday, at least if I'm reading this right, looks like they've released barely half of the opinions from arguments. 

Will: Yeah. And they have less than half of the term left to go.

Dan: To get to June, they have three weeks, right? 

Will: Yeah.

Dan: That's going to be a rush. Okay, we'll be here. I'm hoping for July, because I'll be back from my travels and we’ll be well positioned to sit back and really talk about those big cases, at least one of which I think we can assume is going to be Dobbs, the abortion case, although maybe not. I don't know. I assume the leak of the draft opinion could only cause the opinion to take it longer to come out, but maybe not. Maybe Justice Alito would say, “Well, it's already out in the public. I'm not going to write it any further.”

Will: I think there was a countervailing theory that I saw going around on the right after the leak, that the court ought to now-- the majority ought to now just issue the opinion now, basically. Do what they have to do to get it out the door and just say, like, “Fine, it's just coming out. And if the dissent's not ready, fine. Just let them dissent later, " which the court's done occasionally. When the Chief Justice released a statement saying, “This is not going to in any way change the normal functioning of the court on normal processes,” I think that was laying down a marker that he at least was not on board for an immediate release plan. 

Dan: Yeah. 

Will: So, I assume it'll just take the normal amount of time. Well, the theory of leak, one of them is the leak may make it harder for a member of the majority who was thinking about deserving the majority to do so, because now it'd be very clear what they turn their back on. If that had happened, if one of them was the majority have decided to pull a Kennedy O'Connor, that would probably make it take a long time. If the league stopped that, then maybe it happens faster but still.

Dan: Yeah. Although I guess I would like to think that someone would-- if they were going to do that, they would just do it and not the fact that someone might know, let that change what they're doing. I mean, because when you change sides, I mean, maybe it's not known right away, but it will quite possibly be known down the road.

Will: No, I'd like to think that, I don't think that. In practice, I think that if we knew when the Justices changed their minds, they would change their minds less often. This is one of the things we've disagreed about before, but transparency and secrecy, I think. I think that's one of the big one benefit of the secrecy we used to have on the court, is that it was more possible change [unintelligible 00:07:48].

Dan: Yeah, that's possible. But from there, we should probably talk about what you alluded to, was the ongoing investigation, which we don't have a ton of information about other than it seems to be continuing. The marshal, Gail Curley, is continuing in. And there's a report from Joan Biskupic that says a couple of things. It says that clerks have been asked to turn over some form of cell phone data. Looking at this carefully, and it is not 100% clear to me whether it was just call logs or something more intrusive than that, something like the contents of their phone, and also being asked to sign affidavits [crosstalk] the leak. 

Will: Right, but saying what? Attesting to what? We don't know, right?

Dan: Yeah. Presumably saying that they're not the leaker, and not aware of the identity of the leaker.

Will: I think the most minimal thing that could be happening is that they're being asked to consent to the phone company releasing their call logs, and signing an affidavit that to their knowledge, the call logs are correct, or whatever, something like that. You could imagine going further asking them to testify that they didn't leak it or something or that, whatever you want to ask them about. Although I find this really implausible, you could imagine the marshals wanting to read everybody's texts or something.

Dan: Well, is it that implausible? That's sort of what I'm wondering. I assume the affidavit is about the content, the leak itself, and that the phone records are accurate, that seems silly.

Will: I'm not saying that the court isn't going to want to look at people's messages, eventually. I just think as a first cut, I assume the first thing you do is look at everybody's phone records and see if anybody, I don't know, called anybody at Politico during the rest of this month, or whether they were smart enough to use a burner or Signal or whatever. I assume you do this in rounds, because this has got to be a big step. Normally, as a clerk, you feel quite intimate and trusted at the court. And this has got to be really changing the feel of the relationship and we don't know if the clerks are going to comply. I think maybe you said they shouldn't comply. 

Dan: I think I said I'm not sure I would comply in that situation. I'm not sure if I would get into should, shouldn't. I mean certainly professionally, if you're not the leaker, it's in your interest to comply. It does feel a little bit icky to me. 

Will: Why?

Dan: It does feel a little bit intrusive. Why? Snooping into your private affairs, why does that seem inappropriate, generally?

Will: You're going to go to the court now, you go through the metal detector or whatever, you let them look in your bag. 

Dan: The clerks don't have to do that. 

Will: No, but now, if you go back, that’s something you do. I don't know. 

Dan: Yeah, I don't like that. I understand why they have to do it but I really don't like dealing with the Supreme Court police. They can be rude. I remember when I was clerking, there was this one guy who kept getting in my face when I put my arms sort of on the edge of my chair, not even-- he was like, “Don't do that." I wanted to be like, “Well, what are you going to do arrest me. Bring it to Justice Kennedy and say, like, “I arrested him, because he had his arm in the back of the chair? What are you talking about?" I don’t know. 

Will: They were always very nice to me, Dan.

Dan: Well, you were very compliant, I guess. You didn't even dare put your arm on the back of the chair. How would you feel about it if University of Chicago asked for all your private correspondence?

Will: I guess, also I use my faculty email address, and I assume actually, they can look at that. And if the university is ever sued, I assume they will.

Dan: Yeah, although that's different. Here, presumably, it sounds like clerks are being asked for their personal cell phone information. If it's just the call records, I would probably grumble about it and feel not good about it, and probably not complying. I mean, if they're asking for the entire phone. 

Will: Yeah, that's worse. 

Dan: All of your text messages, anything you've ever looked at on the web, all of your apps. Just go read the Chiefs opinion on Riley about how much information that would disclose. And that would make me intensely uncomfortable to give that to any employer and certainly to give it to the government. I think in that situation, and even if I weren't the leaker, I might just say no. 

Will: Yeah. If they're asking for that, it'd be weird to tell me in advance because presumably, the person who has the most incriminating stuff on their phone will delete it or get a new phone. 

Dan: Yeah. I mean, they don't have the authority just seize it, right?

Will: I mean, they can walk into your office and tell you to hand it over.

Dan: They could, but presumably--

Will: Or you're fired.

Dan: Yeah. They could do that. Presumably, if someone said, “I want to consult--" So, this is the thing. People have said some of the clerks are either have retained or at least thinking about retaining attorneys, which I might do in that situation, even if I weren't the leaker. But if they came, just marched into my office and said, “Give me your phone,” I might say, “Look, I need to talk to a lawyer before you going to do this.” I assume they're not being so heavy handed as to say like, “Give it to us right the second or you're summarily fired.” The thing is that would just seem like such an overreach. If the goal here of this investigation is to restore the credibility of the court, a super aggressive, heavy-handed investigation-- some investigation is appropriate but going over the top is not going to help accomplish what they want to accomplish.

Will: Right. And that's the thing. So, ultimately, I think I've got to wonder also, where are the other Justices on this? If I were an individual clerk, in reality, how I'd react to this would probably depend on part on what Justice wanted me to do. Even though they also aren't necessarily the boss of you but if Justice Gorsuch says to all his clerks, like, “This is outrageous, I don't want you guys to feel compelled to do this. And in fact, I'll be proud of you if you hire a lawyer,” that would be differently than if the Justice said, “Look, you don't have to do this. I'm ashamed of even asking this of you, but it would be a huge personal favor to me and my ability to do my job if you'd say yes.” You might just feel differently about those things.

Dan: Yeah, that's reasonable. [crosstalk] 

Will: I have no idea if they thought that if they got every sign off before asking for this or not. 

Dan: Yeah. 

Will: The other thing that's funny, and this goes to the July point is, on the one hand, of course, being fired as a Supreme Court clerk seems terrifying. You have this prestigious job, you're good at being next to powerful people and all that. On the other hand, they need you more than you need that at this point. You've got the credential. [chuckles] They've got a lot of opinions to get out of the door and a reputation to maintain. And so, if any sizable group of clerks said like, “We're not doing it, and if you're going to fire us, fine.” Being the leaker might hurt your career, although even that's complicated, but being a non-leaker, who just stood up here for your Fourth Amendment rights, I’ve got to assume you could still get your Supreme Court bonus.

Dan: I think that's probably true. The thing that's going to happen is that to become a Supreme Court clerk, most of those folks are more likely to be risk averse, very career focused. And I don't think a big group of them will refuse. I think a couple of them might, but the fewer that do, the harder it is. If you're the only one, then you just look like you're the leaker. But if like six of them got together and were like, “We're just not going to do this,” then that would be interesting. The Justices could just bring in ringers though. [Will laughs] They could just call former clerks and just say like, “Look, I need you here for a month.”

Will: Yeah, maybe. That'll really slow them down though, you've got to get up to speed. 

Dan: Yeah, that's true. In terms of what will happen professionally to the leaker, I don't think the leaker would be able to get whatever the $350,000 bonus, is that what it is, is it more now? 

Will: I think it's higher. I think it's four or something.

Dan: That's insane. I don't think they'd be able to get that from a firm because, I think, at least any firm that practices before the Supreme Court would not do that. 

Will: Right. I'm with you. 

Dan: If you could find some firm that only practices in state court, I don't know, but I know those firms are not the kind of firms that are out there trying to pay bonuses to Supreme Court clerks. I think you'd be giving that up.

Will: Right. I think you'd be getting a job at the ACLU or a public defender's office or Yale Law School.

Dan: ACLU practices before the court of law, do you really think that they would? Do you think even a public interest organization that practices before the court a lot would be willing to do that? 

Will: If it was an official enough left-wing organization, I think might. I don't know if they put you on the briefs or whatever but if you wanted to go work for the ACLU’s Reproductive Rights section, I bet they would hire you.

Dan: Yeah. I think you'd probably be better off just going to more of a political advocacy kind of organization. Whatever the left-wing equivalent of Judicial Crisis Network-- Is it Crisis Network or Confirmation Network right now? I just can't remember.

Will: Biden's President, we don't want to confirm anybody.

Dan: Okay, back to crisis. So, something like that. Yeah, we'll see. I think that's probably right. I don't think the person would end up facing criminal charges. I don't know whether they'd get called up on a bar complaint in court, possibly depends on-- I don't know, are they already admitted? Are they seeking admission? I don't know. But we may not know, but I guess thinking it through, imagine that it is the case that the leaker is a clerk, which is the thing that everybody jumps to as the obvious—

Will: Not obvious.

Dan: [crosstalk] Yeah, that’s not obvious, that's correct. But let's just work with that as the common wisdom most likely, do you think that such a person would have anticipated that the investigation would be at the point of asking for people's phone records and stuff like that? Do you think that person just thought of so or sort of thought like, “I can get away with this, no one's going to check”?

Will: I think there's a 50-50 chance that the leaker’s call log will reveal that they called or texted one of the Politico reporters.

Dan: Yeah. Well, the text wouldn't show up-- the cellphone provider wouldn't have those if they were both on iMessage. 

Will: Right, or Signal or something.

Dan: Yeah. That's the thing, is even if someone was trying to be careful, they could have had one phone call accidentally, and that would be enough. 

Will: Yeah. There's a real chance somebody didn't think it through.

Dan: Yeah. And you wonder whether that person or they'd like quaking in their boots, or they're gearing up to write some New York Times op-ed about why they leaked, that's probably the-- if you're going to go down that way, rather than [Will laughing] getting quietly fired.

Will: Yeah. 

Dan: What about the legal issues with your employer demanding that you turn something over, without probable cause, like a personal record? It's not like a workplace search, it's like--

Will: Right. In a weird way, demanding somebody hand over the phone in the workplace is more like a workplace search but for the problem of saying, maybe it's not exactly, [unintelligible 00:18:43] is extended. This is your area more than mine. I think if the only consequence of saying no is that you will be fired and there's a reasonable reason for wanting to fire you for not turning over your phone, you can't do ongoing work on these confidential cases unless we're sure that we could trust you. The same way that you might decide not to hire somebody else or want a security clearance or consented to turn over information.

Dan: Yeah, I mean, so that the case—

Will: It seems like [crosstalk] complies. 

Dan: The case that is most closely on point from the Fourth Amendment is City of Ontario v. Quon, which was my term, which is about whether the city violated the Fourth Amendment when it searched the records of a pager, but they were pagers that were like, provided by the city, and not-- [crosstalk] 

Will: But also, they just searched [crosstalk] Right. They didn't say, "Consent to the search or else you don’t work here anymore."

Dan: Yeah. 

Will: Which, I think, will be different.

Dan: And then the court said, “That was okay, but we're going to decide this in a super, super narrow way.”

Will: Is this the opinion where Justice Kennedy first refers to the Cyber Age?

Dan: It is not. I do not believe that phrase appears in the opinion but let me double check that while we're talking about it. I believe that shows up later. That does not appear there. There is some language in the opinion about emerging technology and the dynamics of communication and for information transmission, and things like that. But the phrase, 'the Cyber Age', is not an opinion. 

Will: Okay.

Dan: [crosstalk] -that is all to the good. I found a case about the Fifth Amendment, Garrity v. New Jersey. Have you seen this one?

Will: Yeah. They have a case with us.

Dan: Yeah. That's a Fifth Amendment privilege case. In that situation, there was police officers, and there was an investigation and they said, “Look, you need to be questioned. And if you don't say anything, you're going to be fired” And there the court said, like, “Any statement you got can't be used against them in a criminal proceeding.”

Will: Right. That's the sort of Miranda problem. It's like, “If we make you,” right? [crosstalk] 

Dan: Yeah, I think it's a core Fifth Amendment privilege problem and not like-- [crosstalk] 

Will: Yeah, the voluntariness problem, rather than Miranda problem. 

Dan: No, it's neither. Voluntariness is due process. It's Fifth Amendment privilege problem, right?

Will: Sorry, this is voluntariness part of, you cannot be compelled to testify against yourself. So, if you involuntarily--

Dan: I think voluntariness is pretty substantive due process. I guess, that's right, like a truly coerced confession. It's actually a little confusing, because there's both due process and a Fifth Amendment overlay. I don't think you need voluntariness, because I think it's just compulsion. It's just compulsion under the Fifth Amendment.

Will: Sorry, the Fifth Amendment amount contains both the self-incrimination clause and the due process clause. 

Dan: Yeah, sorry. Fifth Amendment privilege is no person shall be compelled. Or, it isn't just compulsion?

Will: Right. I thought voluntariness was the test whether it was compelled or not. That is if you voluntarily confess, it's not compelled and if you involuntarily confess, to compel is to make somebody do something.

Dan: My understanding was-- this is quite a detour. 

Will: You teach this stuff, not me.

Dan: Yeah, I do but I haven't taught investigations for a bit. Everything, this stuff always takes me a while to get back into it. Look at Chavez v. Martinez. And there, the court-- Here's this thing from Dickerson, which says, “Our cases recognize two constitutional bases for the requirement that confession would be voluntary, the Fifth Amendment right against self-incrimination and due process clause,” this is probably all going to be--

Will: I think part of the problem is that there are just two relevant rights because the Fifth Amendment right only applies to statements that are going to be admitted later. So, it's fully cured by not admitting the statements. 

Dan: Yeah.

Will: So, in cases where the police have done something coercive to you and then don't use the statements, we still have a question of like, “Did they do something so horrible that it violates the due process clause?” It's like if you torture somebody gets them to confess, that's both a self-incrimination problem and substantive due process shocks the conscience problem. And you can kill the self-incrimination problem by torturing them and not using their confession but it's not okay to torture people because of substantive due process.

Dan: Yeah, okay. My view is terminologically, it makes more sense to distinguish between involuntariness and compulsion, sure to distinguish between the rights, but I think there are some cases that use that differently, I think.

Will: Yeah. Well, and in the core case, like the core sort of early 20th century case, the involuntary confession because they beat you a bunch of times with a rubber hose, that shocks the conscience and violates of due process and also violates self-incrimination clause if you get information. It matters more when [unintelligible 00:23:28] cases.

Dan: There's this case, Garrity v. New Jersey, that says that police officers who were being questioned in investigation upon pain of being fired, that anything they said in that situation couldn't be used against them in a subsequent criminal proceeding. By analogy, I think you could conclude, maybe you might think that here, where someone has waived their Fourth Amendment rights by handing over their phone or whatever, that that might preclude their use in a later criminal proceeding, might not. What do you think?

Will: I think that's a little bit of a reach, because I do think there's a special set of reasons on the self-incrimination clause to treat that differently. And in any event, the most it's going to get you is that this won't be used against you in a subsequent criminal proceeding. And we just said earlier, whether the leaker, if they're caught, will be criminally prosecuted, it's not at all obvious. 

Dan: Yeah. [crosstalk] 

Will: That certainly wouldn't stop you from being fired for it and from being blackballed for the legal profession for it or blackballed from most of the legal profession or whatever. I don't know how far they get to really.

Dan: Probably not. Not truly far. What if they just searched the phones without-- they just broke into people's offices and took their personal cell phones and search them?

Will: That's more like Quon, right? 

Dan: Yeah, but it's still not there, because these are personal phones rather than just city phones that are being used for personal reasons.

Will: But also, how are they going to get into them because I assume most people have a passcode.

Dan: I don't know, they could fake the biometrics. You're super worried about privacy. You told me that you don't use any biometrics.

Will: Yeah. As I understand the Fifth Amendment case law, they cannot compel you to enter your own passcode because that's potentially testimonial, but they can compel you to hold your thumb to your phone. 

Dan: Yeah, that is not totally resolved.

Will: That's the majority view, the split. 

Dan: Yeah. I mean, the court needs to rule on that. It's not obviously correct to me, because--

Will: [crosstalk] -any chances.

Dan: Yeah, I mean, because for Fifth Amendment purposes, whether testimonial turns on whether the mere act of disclosure itself testifies to something. If it's unclear whether the phone is yours or not, then by giving over the code, then maybe that would be testimonial, but if we know it's your phone and all we're asking for is for you to produce the key, I'm not sure it's the right answer that that's testimonial. But in any event, what are you so worried about? You're worried about being prosecuted?

Will: You're the one who said you wouldn't turn over your records--[crosstalk] 

Dan: I'm a matter of principle. I'm principled, but you're actively worried about being compelled. What are you worried about?

Will: I'm not going to tell you what I'm worried [crosstalk] 

Dan: Okay. The bottom line is you have no principles, but you're actively worried about being investigated for crime, and I'm the opposite.

Will: One of the Dobbs leak, speaking of criminal prosecutions, I think we should also flag, I don't know what to say about it, that there's been an arrest related to Dobbs fall out. 

Dan: Oh, yeah. 

Will: Not of a law clerk, but of somebody who was caught outside of Justice Kavanaugh’s home last night armed and with a, I guess, a backpack full of tactical gear, who said he was there to kill Justice Kavanaugh to stop him from overruling Roe vs. Wade or striking down New York's gun laws and the Second Amendment case. Arrested and charged with attempted murder—[crosstalk] 

Dan: Yeah. [crosstalk] -this person was so willing to disclose his plans to the officers, has done so, and yeah, this is not great. A couple thoughts about this. One is this is not something that that really happens, although one can imagine that happening, is that a system of life tenure and unplanned vacancies does encourage or at least incentivize dangerous people to potentially try to assassinate Justices, because it actually could make a huge difference.

Will: Yeah. That's true on the term limit system too, because you can steal a base. [crosstalk] 

Dan: It depends how it's designed. 

Will: Yeah. It's not true to the balanced bench. It's one of the strongest features of the balanced bench proposal that there's little incentive to assassinate your political opponents.

Dan: I think that was the starting point. But I mean, it's really true, if you killed all the Justices, whoever is President at that moment would appoint the entire court, and they'd be in charge of the court for generations.

Will: Yeah. It's not obvious that would happen. That'd be so politically destabilizing, that I assume that certainly President Biden wouldn't just appoint the nine people on his shortlist, that instead there'd be a complicated negotiation.

Dan: I mean, if it was a Republican in an office, Mitch McConnell would just appoint nine Federalist Society members. I mean, obviously. Obviously. Maybe one fake liberal to make it work.

Will: I don't even think that's true. But I admit-- I hold that to a lower degree of confidence. 

Dan: To reevaluate my assessment of you as not a completely naïve idiot?

Will: Ah, wait. When did you think I was not a completely naïve idiot? 

Dan: In an earlier episode, we had a whole episode. It's the title of a whole episode.

Will: In the episode, I say I'm not completely naïve idiot, and you disagree, that’s the whole thing of the episode. 

Dan: No, you said, “Maybe you think that.” And I said, “No, I don't think you're a completely naive idiot.” 

Will: Okay. 

Dan: I'm saying should I downgrade--

Will: My point is, I actually think Mitch McConnell will have a hard time holding his caucus together if that were to happen. I'm willing to stipulate he would try. I just don't think he would he'd succeeded.

Dan: Well, with luck, we will not have to find out. And this doesn't seem like this was-- it's unclear this person-- if this person is immediately disclosing his plans, unclear how effective this would have been, but if you're the Kavanaugh family, presumably pretty scary. It suggests that there must be security at his house all the time right now if they found this person.

Will: We did have the recent legislation sort of authorizing more extensive law enforcement details for the families and houses of Supreme Court Justices, and it seems like that was a good idea.

Dan: This stuff is scary. There was a retired federal district judge that was murdered just in the last couple of weeks. So, I think-- [crosstalk] 

Will: [crosstalk] -can happen. [crosstalk] 

Dan: Yeah. [crosstalk] all the things, I think we can both come down on the view that this is bad. It shouldn't happen. Do you think this would qualify as an attempted murder? 

Will: It was charged as attempted murder.

Dan: Yeah. Do you think it would qualify? You don't teach criminal law based in your [crosstalk]?

Will: Yeah. [crosstalk] Substantial steps, you have a backpack full of zip ties and a handgun and-- [crosstalk] 

Dan: Yeah. Well, that's what's interesting, because we don't actually have a-- the Supreme Court has never actually said what the test is for attempt under federal law. Most of the circuits say it's a substantial step test. 

Will: Yeah, that's why I thought it was, look like someone—[crosstalk] 

Dan: Yeah. Interestingly, that comes from the Model Penal Code, which is enacted after most of the Federal Criminal Code. And so, it's like not clear why that's—

Will: What did Blackstone say, what was the common law test? 

Dan: There was no clear common law test and attempt actually comes in fairly late. And there was a bunch of different tests. There's like the last step, everyone thinks that's bad. The test was basically, you have to go far enough for it to be an attempt. 


Dan: Okay, that's a criminal law angle. 

Will: I didn't really attend criminal law in law school, but it seems like [unintelligible [00:31:28] to me.

Dan: Who was your professor? 

Will: Well, I'm not going to say now.

Dan: Ah, well, I mean, I'm sure we can-- [crosstalk] 

Will: He's no longer a professor, I believe.

Dan: Okay. I can't believe you didn't attend-- you missed a single day of class even, it just seems so out of character. 

Will: We didn't know each other in law school, Dan.

Dan: You were just skipping all the time, just so you can—[crosstalk] 

Will: No, I usually went to class.

Dan: [crosstalk] -opinions and stuff.

Will: I usually went to class, I did not usually do the reading.

Dan: Why did you not do the reading? [crosstalk] 

Will: I didn't trust-- Well, I didn't read the reading that was assigned. I didn't trust case books, because I thought they were always editing out the good stuff, which was often true. And then, I didn't totally trust the professors either to assign us the most relevant or powerful arguments. So, I tended to go and try to find the cases on scholarship of my own in the field. 

Dan: That doesn't really count as not doing the reading. I mean, if you're going and reading the full versions of the cases, you're doing the reading, you're just doing extra reading.

Will: Yeah, but if you read a bunch of cases that you think are the important ones and don't bother to read the ones that the professor thinks are pedagogical useful.

Dan: Doesn't that create problems when you're trying to take an exam, and they're testing stuff you didn't read?

Will: You read enough in the area, you get the idea. If the cases were actually important, I would read them. A lot of the time, the cases are not that important.

Dan: That's a lot of confidence as a first-year law student, without having done the reading, you've been assigned to know whether those are the things that are important to read and to feel like you better than a tenured Yale Law professor.

Will: Right. The secret is this was not confidence. This was just a total lack of discipline or self-control. So, I just-- [crosstalk] 

Dan: [chuckles] So, you would have tried to. You didn't trust the professors, is that because you thought they were like all liberal hacks?

Will: I thought they did not fully appreciate some of the arguments they disagreed with and so that I had to do a better job of finding those arguments on my own, because they could not be trusted to give me the best versions of them.

Dan: And then, you would vocalize those arguments forcefully in class?

Will: Ah, depends. In some classes I didn't talk at all. In some classes, I talked too much. 

Dan: You didn't wear a suit to class though, right? 

Will: No, I actually didn't have a suit in law school. 

Dan: Okay, you weren't that version of the Federal Society guy in class?

Will: No, the first time I showed up at a Federal Society event where suits were required, I did not own a suit. And so, I thought I could fake it with some dark pants and a jacket, and I was woefully underdressed in an embarrassing way. 

Dan: Did they serve Chick-fil-A? 

Will: I don't remember. 

Dan: When did you first get a suit?

Will: 2L summer? I think I had one in time to interview for law firm jobs. [crosstalk] 

Dan: Yeah. 

Will: I think I did.

Dan: Where'd you work 2L summer? 

Will: Jones Day.

Dan: Okay. Yeah, that's it's a very suit-focused firm. They had a suit requirement long after many other firms went business casual.

Will: I definitely wore suits to work that summer. I definitely had suits to work that summer.

Dan: But this is like the Supreme Court bar admission, like there's certain things you're just way behind the curve on.

Will: Yes.

Dan: Are you admitted yet? 

Will: Next question. 

Dan: Okay. So, not a ton else to say about that. I think that maybe there will be a subsequent trial on the case and there'll be interesting things that happen out of it. But it's surely going to ramp up people saying the protests against the Justices have gone too far, people shouldn't be protesting at their homes-- [crosstalk]

Will: [crosstalk] protesting at their home soon if there's more of a protective curtain or something. 

Dan: Yeah, this will certainly encourage that. It'll be interesting to see if a law like that ever gets before the court itself. Right? 

Will: Yeah, right.

Dan: And because in other contexts, the court has not been super receptive to like buffer zones in terms of protesting.

Will: Well, I have a case like 40 years ago about there's a buffer zone at the court itself, the rules that they had to go to the court, were they then partially invalidated their own, or they've reached a complicated decision about the constitutionality of their own buffer zones. 

Dan: Yeah. 

Will: I guess it can happen again.

Dan: Okay, anything else to say about that set of topics? 

Will: No, I think we should talk about some decisions.

Dan: Okay. Yeah. So, that's probably it for all things related to Dobbs, to the extent that we can call that a Dobbs fallout. You want to talk about couple opinions. One of which, I think, we meant to talk about last time we recorded like a month ago, and then didn't get to it, and then thought we were going to record again in two days. And any number of other things happened, and that is Vaello Madero. Do you think-- am I saying that right?

Will: That is how I would have pronounced it, which doesn't mean it's right. 

Dan: Okay. And this one I read at the time and then you said you want to talk about it now. And then, I started reading, and I was like, “I already read this,” but then I read it twice.

Will: Right. It's a six-page opinion with more concurring opinions that might be relevant but it's a case about the legal status of Puerto Rico and the territories. That is itself, again, a fairly simple case but that had a couple of pretty interesting separate writings that I thought we should at least talk about briefly. 

Dan: Or, it's about, I guess, we say, the legal status of Puerto Rico. It's about the way in which Congress can treat Puerto Rico and people living in Puerto Rico. And so basically, what's going on is Congress has this program, the Supplemental Security Income Program that gives some-- I don't really know how this works, but it gives some money to people that make below a certain income threshold related to-- it's connected to the Social Security program. Is that accurate? 

Will: Good enough. 

Dan: Okay, good enough. Make it available to people that live in United States in the 50 states, but do not make it available to residents of Puerto Rico. The respondent in the case had got this benefit while he was living in New York, but then he moves to Puerto Rico, they keep paying him and then they figure out that he's actually in Puerto Rico, and they say like, “You owe us all this money,” and he says, “This is discriminatory,” and it violates the Equal Protection Clause?

Will: The Equal Protection Clause does not by its own terms apply to the federal government.

Dan: So, this is a problem, right? That it applies to States. 

Will: This is a solved problem, although maybe we're going to unsolve it soon. So, the Supreme Court has subsequently said most famously in the case about the segregation of the DC schools, Bolling v. Sharpe, that there is an equal protection component of the due process clause of the Fifth Amendment. So, the Fifth Amendment says that the federal government can't deny your life, liberty, or property without due process of law, and the Supreme Court says that also means that they have to obey the exact same standards of non-discrimination that states do in the Equal Protection Clause.

Dan: Yeah. And this is called Reverse Incorporation by some, the idea being that like-- I don't know if this is totally fair doctrinally, but basically that the Fifth Amendment is reaching forward and bringing in parts of the 14th Amendment back into the Fifth Amendment. 

Will: Yeah, wasn't-- [crosstalk] 

Dan: Where normally incorporation-- the 14th Amendment is incorporating some of the enumerated provisions in the Bill of Rights.

Will: Right. But normally, doctrinally, the clause in the Fourteenth Amendment that does that is the Fourteenth Amendment due process clause. So, the cases that say that the First Amendment, etc., that are incorporated all are doctrinally substantive due process cases that say it violates due process to violate people's free speech rights or Second Amendment rights or whatever.

Dan: Yeah. And some people think that should go through the Privileges or Immunities Clause.

Will: Yeah, everybody thinks that. 

Dan: Well, except for majority of the court.

Will: Even the majority of the court thinks that it should go to the Privileges or Immunities Clause. They just didn't do it that way, and now it's-- [crosstalk] 

Dan: Yeah, they're too lazy. 

Will: Yeah. Well, McDonald, which is the most recent incorporation of Second Amendment, the court does wrestle with this a little bit. Justice Thomas says we should use Privileges or Immunities Clause and I think the dominant view in the court is, “Yeah, that's probably right.” But--

Dan: Who's got the time? Justice Scalia almost laughed at that argument in court is, like, “Why should we bother?” But yeah, not through this Equal Protection Clause, but in these federal cases. I think basically, the way you have to explain it is, in terms of where we are with Equal Protection Jurisprudence, it just would like be people would find it extremely untenable, and absurd to say that the federal government is just allowed to discriminate on race whenever it wants to.

Will: Can we talk about Justice Thomas?

Dan: Yeah, we'll get there but let's just set the stage. We're just setting the stage. That's sort of partially how we got there with the court had said this, but let's just finish explaining the majority, which is very short.

Will: All right, yeah. 

Dan: Which doesn't question that this exists, but just says questions like this have come up. We have this case from 40 years ago, California v. Torres. That was about whether this alleged discrimination, non-extending supplemental security income to Puerto Rico, whether that violated the constitutional right to interstate travel. And there, the court had said, no, it doesn't. It just needs a rational basis. And there's a rational basis, because Congress has made other determinations, like if you live in Puerto Rico, you don't have to pay a bunch of federal taxes, like gift and estate and income taxes, which sounds pretty good to me. And then later, there was another case, Harris vs. Rosario, which is Nevada Different Federal Benefits program, but the claim was brought under the equal protection component of the Fifth Amendment, due process clause. And the court said also, “The rational basis review, it's fine.” The majority here is just like, “Look, we've got these cases, this is basically the same.” That's it. 

Will: Right. The question is whether it's rational or not rational. 

Dan: Yeah. I just want to say like stepping back, this case came up, you don't really need to read the briefs in this case, which is just this is not the thing that the Supreme Court is going to do. Do something that just has the consequences of radically expanding eligibility for a benefits program that's going to cost the government. I have no idea how much amount of money. I just don't believe it. I don't believe that this is something the Supreme Court of the United States is actually willing to do.

Will: Yeah, I agree. Not because of the money, just because of the territory. I think the court is not going to step in and dramatically second guess a longstanding congressional decision on how to treat a political entity that's not an US state.

Dan: But especially we're doing so would have really big consequences. That's why there's eight votes with the majority opinion. You got everybody except for Justice Sotomayor. The eight of them are saying, “This is fine. This passes a rational basis review.” But also surprising, the lower courts actually both said this is unconstitutional. A district court in the First Circuit had said this is unconstitutional, but Supreme Court nearly unanimously says, “That's wrong.” But then, some wrinkles. And so, you want to talk about the Thomas concurrence, which is interesting.

Will: Justice Thomas, I think, it's the first time he or maybe anybody on the court in the past 75 years have done this, separately to take issue with this assumption, we just spent a little bit of time setting the stage on, which is that the due process clause requires the federal government to obey the normal equal protection doctrine. He notes that he's previously applied this doctrine, most importantly in a case called Adarand, which held federal affirmative action programs unconstitutional, because state affirmative action programs are generally unconstitutional. He now notes that that's probably wrong, that the Supreme Court decision, Bolling v. Sharpe, that said that you have to have the same standard. It doesn't really hold up when you think about it. But he's still willing to protect some kind of equal protection rights under the citizenship clause, and he's got to cite the whole-- it's like a greatest hits of originalist constitutional scholars from McConnell and Chapman, Sai Prakash, David Curry, Ryan Williams, Chris Green, you've got a nice little dive into how these two clauses work together and what we've done wrong under one clause and what the other one might do. 

Dan: Yeah. And so that clause is first part of the Fourteenth Amendment, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.” And then, it goes on to say they can't be divided-- States can't abridge the privileges or immunities of citizens, deprive them of due process, or deny equal protection. It's not totally clear exactly how much this would change things although I think would it mean that if this is right, that the citizenship clause does contain some antidiscrimination component that would apply only to citizens and so, if the government were to say-- Sorry, I don't know if you can hear my kid shouting in the background, I'm recording from home. If the government were to like discriminate against noncitizens along presumptively forbidden grounds, that would be okay. Do you think that's right?

Will: I think that's right. That's already kind of true, because states are not allowed to discriminate on the basis of alienage, that's considered a protected class [unintelligible [00:45:37] purposes. But of course, federal law deeply discriminates on the basis of alienage, that's immigration law. And there's a lot of complicated questions about-- [crosstalk] 

Dan: It's not about [crosstalk] explicitly on race, racial lines, right?

Will: Not explicitly racial lines anymore, although we used to. The status of those cases is complicated. Yes. So, I think probably be limited to citizens, Justice Thomas suggests, might be limited to civil rights, particular because it's what a lot of the idea was-- And I'll say he's got a lot of great sources here, many of which are sources I've been looking at for some new article I'm working on. I'm not sure he's right that it's the citizenship clause, the Fourteenth Amendment, that’s really doing the work here. Even before the Fourteenth Amendment, there was a common law of citizenship and what is entailed to being a citizen and what kinds of rights you have of being a citizen as a matter of almost unwritten general law. And that law might be important either way. 

I'm not sure the clause really transformed that law, so much it's just being clear who was a citizen, and then you need to go back to whatever, the common law citizenship. But I think the big move of just breaking that idea that's going to be exactly the same standard for the federal and state governments could be a huge deal. One reason it could be a huge deal is, as I understand it in practice, the Equal Protection Clause against the federal government is almost always used to the disadvantage of underrepresented minorities and to the advantage of racial majorities. 

Richard Primus has an article, Bolling Alone, that tracked in 2004 all of the Federal Equal Protection cases since Bolling. There are a few circuit cases where a prosecutor violated [unintelligible 00:47:19] or something, but I believe it's the case that no federal law or federal policy has been held to discriminate against racial minorities since 1954. We only strike down affirmative action programs, not--

Dan: Yeah, that's interesting. I mean-

Will: -regular discrimination.

Dan: -I guess we don't really know the counterfactual though, if there was seen as no legal constraint there, how would the world be different? 

Will: He speculates this is partly just also because whatever the shifting norms of discrimination are okay, it's unsurprising that the Congress and the Supreme Court end up being roughly on the same track over time. So, it's not to say that there's nothing the federal government could do that would trigger it. But if you're a results oriented liberal person, you're looking at the scorecard, like what you get in this doctrine, it is not obvious that you should be upset about Justice Thomas here.

Dan: Yeah, well, TBD. Also, not obvious that the court will do this, just because it didn't matter here, right?

Will: Right. It doesn't matter here. If the Supreme Court strikes down affirmative action programs in colleges or universities next year and if we have a liberal Congress that wants to respond with a federal affirmative action legislation, that'll matter a great deal. And maybe in a weird way, Justice Thomas was putting himself out there as possible swing vote. But for now, it doesn't matter as much.

Dan: All right, not the only interesting opinion in the case calling for reconsideration of many, many years of precedent. So, we also have concurring opinion from Justice Gorsuch, again would reach the same result, but would like the court to reject the much older, insular cases. You probably teach these, right?

Will: I don't teach these, but now I'm feeling a little bad about it. At Chicago, we break up con law into separation of powers and federalism in one course and rights like due process and equal protection in the other course. There are a few things that it's not clear which bucket they fall into and the insular cases are one of them, because the insular cases are a set of cases about what constitutional rights do you have in the territories? And to what extent is the full panoply of constitutional provisions, and especially at the bill of rights apply to the territories? Part of what the insular cases did was to divvy up the territories into incorporated or core territories and unincorporated or less core territories and give you a full panoply of right in incorporated territories and then have some territories that are second-class territories-- [crosstalk] 

Dan: In part, some of these distinctions were made on racist [crosstalk] like, well, Anglo American places, that's one thing. But these other people, they're not quite fit for our common law rights.

Will: Right. Do you really expect us to have jury trials in the Philippines? It's kind of the vibe. 

Dan: Yeah. 

Will: These cases, we're in the background of the Puerto Rico case, because they're one of the many ways in which territories are not given full constitutional status under American law, and Justice Gorsuch thinks the time has come to reconsider and overturn them. 

Dan: He's not crazy here, but he also is maybe taking a position that, again, might not matter very much, because it seems like these days, mostly what happens is courts-- this is what happens here, which is the court is like, “Yeah, this is a fundamental right, it should apply here. But we're not going to-- it doesn't apply here on the merits.” Are there still big contexts where this would actually change the bottom line? What do you think? 

Will: I think it's now got a pending cert petition, and it's been going throughout the circuits for a while about birthright citizenship. So, under the current doctrine, people born in most of the unincorporated territories, or I think all the territories are unincorporated at this point, are not by constitutional right made into birthright citizens. Now, for the biggest territories like Puerto Rico, we have statutory birthright citizenship, so people born in Puerto Rico are citizens. But for some of the other ones, like, I think American Samoa, Guam, they're not birthright citizens. That's a potentially big deal. And there've been a-- [crosstalk] 

Dan: Why does overturning the insular cases change that result? Because 14th Amendment says all persons born or naturalized in the United States, I mean isn't that just a question of what counts is in the United States?

Will: Yes. Well, insular cases started with-- I've had a bunch of different textual questions bound up in insular cases. This is one of the places where Justice Gorsuch and I might actually diverge because I'd like to see a little bit more case-by-case analysis in different texts, but one of the insular cases is about the definition of the United States, and is basically, do the territories count as the United States? I think one of the early ones is about the rule that taxes have to be uniform throughout the United States.

Dan: So, that can be up for grabs, and that would be a big deal.

Will: Right. Basically, does the United States mean the states that happen to be united, or does it mean the whole country, the United States, including the non-state parts of the United States? And, yeah, the more you fold them in, then that could--

Dan: Yeah.

Will: I mean, this has Justice Gorsuch’s name all over it. Overturning hundred years of precedent in the name of originalism in a way that also reaches a sympathetic pro little guy result, [crosstalk] 

Dan: Pro like anti-colonial result. 

Will: Yeah. This is McGirt Gorsuch. 

Dan: Yeah. 

Will: All over it. 

Dan: Yeah. Doesn't have anybody else joining his concurrence. I mean, may or may not have wanted anybody else to join. But you could see other people like the liberal Justices getting behind this. Justice Sotomayor is the only dissenter. She thinks this does violate the Constitution, which is interesting, could have thought of seeing this opinion being a 9-0 but it doesn't end up there. Were you surprised that she took that position?

Will: No, not really. My memory for oral argument was it seemed like she was pretty skeptical of this. But I think this is one of those cases where, is the rational basis test that Will and Dan here, the question presented just think, like, “Yeah, that sounds like something okay”? Or, does the rational basis test actually involves hearing the government's rationale and trying to carefully scrutinize whether it actually connects the dots? Usually, it's the first, but occasionally the second. If you think about which benefits programs correspond to taxes and is it really relevant, this isn't like social security old age where you pay in and then pay out. She makes some fair points, if you're going to apply more exacting scrutiny. I just think most of the time, the rational basis test is more like the Will and Dan here [unintelligible [00:54:21] and have a good reaction test.

Dan: Justice Sotomayor is the only Justice who is she's ethnically Puerto Rican. So, she has maybe thought a lot about this question. So, it's interesting, but the court is not willing to do that, and hardly anybody is willing to go there in this case.

Will: Yeah. That's right. 

Dan: Anything else to say about it? Okay, so, we're going long. I think we've got one more. Do you want to talk about another one? 

Will: All right, should we talk about today's case? 

Dan: There's been a lot of stuff that's happened since we last recorded, some of it interesting, some of it less so, but I don't know if we'll catch up on everything, but I think we should talk about this case, Egbert v. Boule, is that how you would say that?

Will: That is how I would say it.

Dan: Okay. This is an interesting one, involving am interesting character. Respondent Robert Boule, who lives in the last town in the US on Interstate 5 before you get to the Canadian border. His residence actually goes over the Canadian border by like five feet. I don't really know if this is possible. You think about borders, I don't spend a lot of time in border areas, you imagine them there being like some demarcation, but it's actually just people. This guy can walk across the border like hundred times a day if he wants to. And I don't totally understand what he's doing here. He's got an interesting business model. He has a B&B called Smuggler's Inn. 

Will: Sounds great.

Dan: Which is a little bit of a tongue-in-cheek name, but it also seems like it is a place to be if you're a smuggler. It's not a super nice B&B. There are a couple of pictures in the opinion, which is interesting. There's a picture of his home and he's put some stones down to mark the US-Canada border. And there's a picture of the accommodations in Smuggler’s Inn, which don't look great. It looks like three bunk beds, and a TV and some ratty furniture on what looks like a concrete floor, maybe. But basically, he charges people high prices to come stay at Smuggler’s Inn and then also will drive them across the border and makes them pay for a room even if they're not actually staying. But then, he also rats them out to the government in exchange for being paid as a confidential informant. Although it's little unclear, it seems like sometimes he doesn't rat people out and sometimes he does and he's playing both sides. Oh, and by the way, [chuckles] his license plate of his car, SUV, his license plate says SMUGLER with one G, I guess-- [crosstalk]

Will: One G. So, it's actually--

In Unison: Smugler. [chuckles] 

Dan: So, yeah, this guy is a character on the level of Fane Lozman, if you remember him, who is the houseboat owner in Florida who's actually gotten two cases on two different legal issues up to the court, because the town that he lives in keeps trying to mess with him unconstitutionally. Yeah, this guy seems like a real character.

Will: [crosstalk] 

Dan: I don't totally understand what his game is. I understand sort of what he's doing, but I don't really understand why he's sometimes teaming up with the government and sometimes not. And here is that instance where he ran afoul of the government, because he actually did try to inform, so he told the government, “Hey, a Turkish national is coming to Smuggler’s Inn,” and he told Agent Egbert, who is a border patrol agent that this guy is coming. So, he's trying to help out the agent. And then, Agent Egbert saw the SMUGLER vehicle and thought that Turkish guest was there and follows that into the driveway. But then, Boule says, “Get off my property,” and the agent says, “No,” and then they get into a physical altercation where allegedly the agent throws him to the ground, throws the Smuggler, Mr. Boule, to the grounds. 

I don't really understand why this went down the way that it did. If he's telling the border patrol guy, like, “I've got this guest who might be trying to smuggle himself across the border in Smuggler’s Inn, but then agent was like, “Okay, I'm going to come check it out,” and then they get into this fight. I don't really get it.

Will: I suspect there's more story here if we ever--

Dan: Yeah. I haven't gotten the debriefs to really figure out if there's more there. That's what happens.

Will: Did you add that the Egbert also then afterwards gets mad at Boule, and so tries to get his-- calls the Washington Department of Licensing about the SMUGLER license plate? 

Dan: Oh, yes. 

Will: Tries to get--

Dan: [crosstalk] 

Will: Taxes audited, and so on. It seems like a real problematic relationship here.

Dan: Yeah, this went south. So, I don't know if Boule is still giving Egbert any more tips about suspicious nationals.

Will: There's a footnote in here that Boule has been convicted maybe in Canadian court for--?

Dan: Yeah, for human trafficking.

Will: Yeah. I don't know if he's-- yeah.

Dan: Are they extraditing him across his driveway or across his lawn? So, yeah, he seems a little unsavory to me. It seems he's defrauding these people that are trying to get to Canada.

Will: Yeah. There's a little snarky note about majority opinion, that when he reports on people, he doesn't even refund them.

Dan: [chuckles] I mean, which--

Will: That's the case I would like to see is the breach of contract case by somebody who hires Boule to go to the Smuggler’s Inn, and then they learn that the Smuggler’s Inn is actually inhospitable and just report to a law enforcement. [crosstalk] 

Dan: Yeah, the question is, is there federal jurisdiction over such a case? But what the case is about is Boule tries to get remedy for what he sees as illegal treatment by Egbert. He files a grievance with Egbert’s bosses. He files an administrative claim with the border patrol. And ultimately, those don't really go anywhere. So, he doesn't get any money with the claim. It's a Federal Torts Act, Torts Claims Act. He doesn't get any money, and they don't end up firing Agent Egbert.

And then, Boule still wants some accountability, goes and sues him in federal district court and says, “You violated my Fourth Amendment rights by engaging in excessive use of force and also violated my First Amendment rights by unlawfully retaliating against me.” And because Egbert is a federal official, there isn't a statutory cause of action that he can bring. And instead, Boule is relying on Bivens, which is this case from the 60s-- what's the year? 

Will: 1971, I think.

Dan: Okay, so about 50 years old, that said, well, there's going to be an implied cause of action against federal officials who violate the Fourth Amendment right. We're going to let you sue them even though there's no statute explicitly saying you get to sue them. And then the question is, is he actually allowed to do that? 

Will: Yeah.

Dan: Here, is there such a cause of action? An implied cause of action here. The court says no. The background is the court has been super, super hostile to this Bivens doctrine and this idea that courts can recognize implied causes of action.

Will: Yes, Bivens was set in 1971, and it's an illegal search and seizure claim. And then after Bivens, there are two cases about other constitutional rights. One about the Eighth Amendment, Green, and one about equal protection component of the due process clause, which we just talked about, which is a sort of sex discrimination suit against a federal employer. The court recognizes Bivens cause and actions then. And then, starting at about the same time I'm born, which is almost 40 years ago now, the answer in every other Bivens case has been no. So, I teach this in fed courts, and it's one of the few areas where I say, “Look, there is a doctrinal test. I'll tell you the doctrinal test. But really, if your doctrinal test comes out with the answer yes, you need to check your work, because the answer is supposed to be no, or the court has made quite clear that the answer is always supposed to be no.” And this case is, in a way, just one more instance of that, although there are a couple of funny things going on with it.

Dan: Yeah. One thing that’s weird about it is there's at least a strong argument that this is just within the core of Bivens. This isn't court had said, “Well, don't extend it to new situations,” but the question is like, "Well, Biven said you can sue people for violating your Fourth Amendment rights." And this is the first part of his claim, the excessive force claim is just that. And so why is this not authorized by Bivens itself? 

Will: So, the core doctrinal test is we're not overruling Bivens, the court has repeatedly chosen not to overrule Bivens. But anytime you extend Bivens to “a new context,” then you have to ask if there are special factors counseling hesitation or alternative remedies. And the answer to those questions are yes, they're always special factors and/or alternative remedies. So, the thing that matters is, is it in context? And, yeah, this is at least plausible to say, “Look, this is a Fourth Amendment claim by a federal law enforcement agent.” That's the core context of Bivens. So, there have been recent circuit court cases about this problem, about what counts as a new context. 

And here, I don't know, this was actually a core thing that the legal realists wrote about in the middle of the 20th century, is they deconstructed the idea that there is a core context to a case. Like once upon a time in that naive formalist era, we would assemble a case as a whole thing. The whole thing is when a federal law enforcement officer violates the Fourth Amendment rights, there's a cause of action. They wrote in various contexts to say, “Well, how do you know it's a federal law enforcement officer rather than a federal law enforcement officer from the Bureau of Narcotics?" The Bureau, by the way, it doesn't exist anymore, so maybe there are no defense claims. People come close to joking, but I haven't heard the joke anymore like, “Is your name Webster Bivens? Because if not, it seems like it's a different case from Bivens." That case was decided on Tuesday. This case, it's a Wednesday. So, that's a different context. What actually makes it count is unclear. 

The court had a case a couple of years ago, Hernandez v. Mesa, that involves a Fourth Amendment claim by a federal law enforcement officer who was firing across the border at a Mexican national. The court said that counts as a new context, even though it's a Fourth Amendment claim. So, we already know, the fact that the Fourth Amendment claim is not enough to make it the same as Bivens. This case is on our side of the border, but it's near the border. So, maybe that's enough to make it different.

Dan: And they say it implicates national security.

Will: Because it's near the border.

Dan: Near the border. And the court arguably changes the test a little bit here. So, you described the two-part test, and then the court says, “Well, there are these two steps.” They often resolve a single question, whether there is any reason to think that Congress might be better equipped to create a damages remedy.

Will: Yeah. 

Dan: Any reason.

Will: Any rational reason.

Dan: Yeah. And here, the court says, “Well, it's a new context and we think there's some reason that Congress would be better equipped.” And that's the end of the story.

Will: Yeah. This is not a novel point, but I will say it. Under Bivens itself, it's not clear that there should be a cause of action even on the facts of Bivens under the tests the court has adopted by now. If you go back and read Bivens, in Bivens, everybody acknowledged there were other remedies. In particular, state law remedies used to be much more present in these cases, and I want to talk in a minute about how those went. And so, Bivens is all about like, “Well, the question is should we use the state law remedies is there some reason we need to also create a federal cause of action, instead of just rely on the state law cause of action?” And they talk about uniformity and the positive law model and decide that it'd be useful to have a federal cause of action too. But I think if you were to apply the same test to Bivens itself today, you might say, “No, it seems rational to use the state law remedies. That seems good enough.” They're probably more robust than the administrative remedies that are available to Mr. Boule. 

Dan: A lot of the time, you can't get a state court remedy because of the Federal Tort Claims Act. They're [crosstalk] these weird gaps. 

Will: So, this is the thing that was not true at the time of Bivens, but happened after Bivens, is Congress passed the Westfall Act, which effectively immunizes federal officers from state tort claims and substituting the United States, forcing them to the Federal Tort Claims Act process, which has a lot of various limitations. That happened after Bivens, and the legislative history of the Westfall Act suggests that that was because that they excluded Bivens. The idea was, “Okay, now you have Bivens for your constitutional causes of action and all the other ones, we get blocked." Ironically, now, we're going to end up in a world where we have neither, where we effectively have no Bivens remedy, but the Westfall Act also stops you from bringing the state law causes of action you could bring before Bivens.

Dan: And this is very alarming to me, that the idea that we might be marching toward a world where we just get rid of Bivens entirely. So, if the FBI agent breaks into your house and beats you up, there's nothing you can do about it. That seems bad to me. And Justice Gorsuch is willing to go there. He's got concurrences and majority opinion by Justice Thomas. Justice Gorsuch has a concurrence and the judgment and just says, “We should never do this. We should just get rid of this, and not do a case-specific analysis. There just should be no Bivens.

Will: Right. Justice Gorsuch says, “In candor, I'm with you. I don't really see how this is different from Bivens. So, we should just overrule it.” It's not clear to me, people have tried to get the court to answer some of the questions about if there's no Bivens, can we have something else instead? And the court avoids that question, which is not great, but it's better than answering it and giving it the wrong answer. So, it's unclear to me what Justice Gorsuch’s position is on the constitutionality of the Westfall Act, let's say. There are a couple of other kind of-- can you bring a diversity suit and a couple other ways to bring these in. I had hope that if the court ever fully overrules Bivens, they then will turn more attention to the question of what is the remedy supposed to be? How is this supposed to work? [crosstalk] 

Dan: Yeah, because it strikes me as deeply troubling to have a legal regime that says, “Yes, you have a right against unreasonable search and seizure by federal officials, which by the way, is the core of the original meaning of the Fourth Amendment. It was aimed at the federal government, not at states. And yet, it is totally fine for Congress to say, “You can't have any State Law Tort Actions. And then, there's also no way to get any remedy under the constitution.” That seems really bad, troubling in terms of accountability. But it also seems very inconsistent with the constitutional design to say that, “You have this right, but the courts are going to say it's totally fine to have like no remedy whatsoever."

Will: No remedy whatsoever is a little complicated, because for reasons that most people don't understand, this kind of Bivens skepticism only applies to damages. It doesn't apply to injunctive relief. That doesn't do any good to Mr. Boule or to Mr. Bivens. But in a lot of cases where we care about this ongoing government violation of the law, all these problems fall away, because equity has a totally different way of getting [crosstalk] that's much more generous. It's funny, because there used to be the exclusionary rule. I think it's in Bivens itself, Justice Black dissents. And one of his arguments is like, “Hey, we just created the exclusionary rule. We created remedies for these things. We don't need this.” But in the intervening time, the exclusionary rule has also gotten much more porous. [crosstalk] 

Dan: Yeah. So, there may be no remedy a lot of the times, that seems super troubling to me.

Will: This was originally my [unintelligible 01:11:06] job type paper, actually, when I went on the-- [crosstalk] 

Dan: This is the original remedies.

Will: Original remedies. So, it's true so far as it goes that in the 19th century, there weren't freestanding federal causes of action under Bivens or a federal exclusionary rule. I mean, there was no evidence, but that's another story. But what you had instead were you had these state law causes of action, which especially makes sense under the Fourth Amendment, if you believe in the positive law model, or maybe even the general law model of the Fourth Amendment, that the positive law or a general law could supply these causes of action against the federal government, just the same way it's applied to the substance entitlements. So, it was about an invasion of your personal property would bring a claim about Tort Law or Property Law. 

And then, the other part of the paper that got a little edgy was about Second Amendment Rights. So, I think it is descriptively true that the other thing that used to operate a lot more to prevent these kinds of abuses would be people would defend themselves. And you didn't need a cause of action to defend yourself. But, of course, then you might get in trouble for using force against an officer. And then in your criminal prosecution, you would say, “Look, what I was doing was totally lawful, defense of myself, because the officer was acting unlawfully.” That's also fallen away. I doubt there's any appetite to bring it back, but it seems weird that we have no appetite to bring back the original remedies. And also, we're getting rid of the new remedies. That seems like the worst of all worlds. 

Dan: Yeah, but you never wrote this paper.

Will: No.

Dan: Because you couldn't solve it, right? You don't have the answer?

Will: When you state it at a high level, it's true. When we get into the moving parts, part that got sidetracked by immunities. And so, I'd ended up writing a paper about qualified immunity and covering that off. Partly, you get sidetracked by incorporation the Bill of Rights. So, I'm working on a paper about that, but I haven't even gotten to this problem. And then apparently, you do still have these doctrinal problems. It seems to me there's a problem with getting rid of Bivens but making federal officers immune from all State Law Tort Claims. But if you ask me, what clause of the Constitution says that, I get a little nervous. Is the problem that Congress lacks the enumerated power to immunize federal officers? I can make that argument, but it's a stretch. Is the problem that it violates the Fourth Amendment itself, because the Westfall Act is like a general warrant? Maybe. But I will say I've been digging into general warrants and having trouble connecting that dot. Is it a due process problem? Because I don't know, due process is the last refuge of constitutional arguments in need of constitutional text. It's hard to figure out exactly why it's gone wrong.

Dan: It's one of those situations where it's like, if your theory cannot give you an answer to this question, it seems like maybe it's a bad theory. If the Constitution says that this is right, basically, if it says that the right of the people to be secure in their persons houses, papers, and effects against unreasonable searches and seizures shall not be violated. If it says that, and then it also is completely 100% okay for Congress to make it impossible to indicate that right in any way, something is going really awry. A theory that says that's fine, something has gone awry there. I don't know where but send it back. Send it back to the drawing board, figure something out, because this can't be the way it is. 

And I think, honestly, that it's fine for courts to have a fairly big role in shaping remedies. They figure out whether something violates the Constitution. Historically, there's a certain amount of judicial creativity in identifying remedies. I think that's honestly a totally reasonable thing for courts to do. Gorsuch says this, “Here's the real question. When might a court ever be better equipped than the people's elected representatives to weigh the costs and benefits of creating a cause of action? It seems to meet the to ask the question is to answer it." Well, first of all, it is, I think, a lot of people would say, courts are much better equipped to do that compared to the actual reality of legislators in Congress. So I don't think to ask that question is to answer it. But it's a skewed way of framing the question, which is to say, “Well, when might a court be better equipped to identify the remedy for constitutional violations? I don't know, a lot, maybe. 

Will: It's funny. This is actually where I disagree. I actually think the amount of judicial creativity and remedies historically has been overstated, and I don't think it's helpful. I think that's what got us here. I think, actually, we are getting the courts. 

Dan: But here wasn't so bad. Here, we're saying, to sue people was not so bad. 

Will: Well, but we're not there anymore. No, I mean, here 2022, I guess, I think if you invite the current federal courts with their current views to shape the remedies, we don't get a lot of damages actions, in fact. And this is sort of my complaint about qualified immunity too. I think that's an area where courts-- [crosstalk] 

Dan: Yeah. If the reason that they're doing that is because they say, “You don't have the power to do that,” and I'm saying, “You should have the power to do that,” then, I mean—[crosstalk] 

Will: Right. I'm just not sure it's only the lack of power that we're getting. I think we're also getting there-- why does Justice Thomas-- [crosstalk] 

Dan: That just supports my point. If what's really going on is courts think they do have the power to decide these things and they just don't like these kinds of actions, then that seems worse. That seems like help me.

Will: I'm against judges having power. I want the judges to not view themselves as having a role in creating the remedies and just enforce the remedies that have been known to the common law for hundreds of years even if they don't like them. I want the judges to say, “Look, you've got to take this in front of a jury of your peers in Washington State, and if they want to hold everybody liable, we can't do anything about it.”

Dan: Then, we need an answer to the is it okay to immunize federal officials from State Tort Law question. But you could also say, “Look, this is basically authorizing these common law, these Bivens. implied rights of action." It is really pretty close to what happened before. It's just the relationship between the state and the federal government has gotten more complicated. And we don't really think of state courts as being able to have jurisdiction over federal officers. And so this is pretty close. We're just basically moving the tort litigation from state courts and the federal courts.

Will: Correct. I would be okay with retaining Bivens on stare decisis grounds on the good enough doctrine. The same way that we say, incorporating the bill of rights under the due process clauses into the privileges or immunities clause was not quite putting in the right place, but good enough. Uphold Bivens on the grounds that it's not quite the right jurisdictional box, but it's pretty close to the original scheme. It just seems now we're going to move further and further from the original scheme.

Dan: Yeah. I guess I would like to see the Justices who are champing at the bit to get rid of events to also show some because they're the same Justices who want to get rid of the exclusionary rule. And to show some concern for this problem, because this is the critique of Justice Scalia I've made at various points, which is he's this really aggressive defender of Fourth Amendment rights in various cases. But then as far as I can tell, he doesn't believe that there should be a remedy for those violations of those rights. He was against the exclusionary rule, and he wasn't a fan of Bivens. What did he think was supposed to happen? What did he think the Fourth Amendment was doing?

Will: This is what got me the original remedies project. I'll say, look, this is not enough but at a minimum, again, can I bring up qualified immunity? We do have a federal cause of action for violating for Constitutional violations against state officials. Congress passed one. Exactly what Gorsuch and Thomas say they're supposed to do. Apparently, judges are not supposed to weigh the costs and benefits of that law. They're supposed to let Congress decide what the scope of the cause of action should be. But what do we get? We get a bunch of judge-made immunities explicitly reflecting the judge's own views of the costs and benefits of those causes of action, because they don't like the ones that Congress created. So, even if we got rid of Bivens entirely and didn't give us anything else, can we at least have the causes of action that Congress did create?

Dan: That's fair. It doesn't get us all the way there though, because this idea that FBI agents can break into your house and beat you up, and there's nothing anybody can do about it, that bothers me and it seems really hard to square with the idea that you have these constitutional rights.

Will: Right. My hope is this is just the first step. My hope is that a few years from now, the court will wake up, notice where its remedies jurisprudence has gotten us and realize that it needs to-- [crosstalk] 

Dan: But they should know that. This is not hard. And people have been saying this for a long time.

Will: I agree they should know it. It's harder than it looks just because there are so many moving parts, so you don't confront them all in the same case. Can you imagine if you're a clerking on this case and you say, “Well, what about the Westfall Act?”, the normal response is this case does not involve the Westfall Act, I'm sure we'll have to deal with at some point. I agree they should, but I'm just saying to keep all the different moving parts in your mind and think about where the problem really belongs is harder than it seems.

Dan: Well, here's my prediction, is they're not going to fix it. They're just going to end up creating a big vacuum. 

Will: That's probably true, but I prefer to have hope. 

Dan: Yeah. Okay. As always, there's more we can talk about, but that's probably where we should cut it.

[Divided Argument theme]

Will: Thanks for listening. Thanks to all of you who have been sending us feedback and suggestions. A few of which we incorporate in the show, many of other ones which are building up and we're still thinking about them. So please, please keep writing us. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. 

Dan: Rate and review, send the podcast to your friends. And if it's a long time before we record the next episode, it will be because our Fourth Amendment rights have been violated and we didn't get a remedy, and that will be Will’s fault.

Will: I'm trying to help. 

Dan: Ah, we'll see.

[Divided Argument theme]


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