Moving with shockingly unpredictable efficiency, we respond to feedback, debate which of us is more composting-friendly, catch up on the emergency docket, and chip away at our end-of-Term backlog by digging into Diamond Alternative Energy v. EPA.
Moving with shockingly unpredictable efficiency, we respond to feedback, debate which of us is more composting-friendly, catch up on the emergency docket, and chip away at our end-of-Term backlog by digging into Diamond Alternative Energy v. EPA.
[Divided Argument theme]
Dan: Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast. I'm Dan Epps.
Will: And I'm Will Baude.
Dan: Well, it's been a week or two since our last episode, but we've still got a lot of backlog to get through from the end of the term. I think we will be doing that for a bit. And the court, despite being on summer vacation, is still giving us emergency orders we have to process, so it might take us a while. What do you think? By October or so, do you think we'll be caught up on the term?
Will: I think by the time the next term starts, first Monday in October, we'll be as caught up as we're going to be. Although the emergency orders thing is an issue, it used to be we could count on the court to put its pencils down while we did the rest of the reading.
Dan: Yeah, it's really quite frustrating, and it's really surprising the degree to which that has changed, radically. When you wrote the original shadow docket article, you were really just talking about a handful of habeas summary reversals, right?
Will: Yeah. I mean, I think, if I can take some credit, I think I was sensing there was a little bit of an inflection point or some more weird stuff seem to be going on.
Dan: Yeah, I mean, where we were on the curve was very early, but I feel most of your examples were the handful of random summary reversals they we were doing.
Will: Yeah. I remember going to a conference with some public interest lawyers who were talking about various strategic lawyering things, around the time that article came out. And I gave them the tip of like, “You should start applying for extraordinary relief, because that could be a useful way to get just to court take a different look at the merits.” And the people in the court were like, “Oh, yeah, that's a good idea. We should try that.” And other people were like, “Wait, you can do what?” They're like taking notes.
[laughter]
Will: So, I don't want to say it's my fault.
Dan: So, you're the legal architect.
Will: The architect of the emergency docket?
Dan: Yeah.
Will: Or maybe the interim orders docket. Maybe it's the new name we're going to call it.
Dan: Is that what we're settling on?
Will: That's a good argument from Jack Goldsmith. That's actually the best name is the interim relief docket.
Dan: Could we just call it the interim docket? I mean, it's a mouthful.
Will: Okay, interim docket. I don't know.
Dan: I don't know. So, let's try to power through some feedback and follow up. How about that?
Will: Okay, sure.
Dan: Like, power through so we actually get to the things we're going to talk about. Okay, first thing Felix Maximilian Wellschmied wrote in to tell us about a pretty cool find. There is a speech that Justice Barrett gave at Notre Dame Law Review for a 2022 symposium. She was the keynote, where she actually mentions Grupo Mexicano in the context of whether she was the clerk on that case or not. And let's just play the audio from that clip, and then we can speculate about what exactly she's saying. So, let's play that.
[audio clip starts]
Barrett: It's always a challenge to try to figure out the right level at which level of generality at which to read the history. And I will confess that I didn't choose to be the clerk who worked on Grupo Mexicano [audience laughter] for a reason. If I had known that I would find myself delivering a lecture that was relevant to Grupo Mexicano today, I would have thought, “Why on earth did you agree to that?” Because it seemed to me very technical and arcane at the time.
[audio clip ends]
Dan: Okay, so what do you make of that? You could interpret it both ways, right? She didn't choose to be the clerk or she didn't choose to be the clerk.
Will: Some clerks choose Grupo Mexicano and some have Grupo Mexicano thrust upon them.
Dan: Yeah. [laughs]
Will: No, I think she's saying that she was not the Grupo Mexicano clerk.
Dan: Yeah, that's how I read that as well. So, I guess you said there was a more than 25% chance, right?
Will: Yeah, but looks like it's zero.
Dan: Yeah. No, it's not zero because it's still ambiguous. But I think we have to do some Bayesian updating.
Will: I mean, she could be lying, she could be misremembering, but those seem unlikely.
Dan: No. We could be misinterpreting exactly what she's saying. She could be saying the other thing.
Will: Well, I do think the Scalia chambers do have, I think, a collective labor approach to parts of the opinions. So, even if you weren't the clerk who chose to be the one who worked on Grupo Mexicano, it could literally be true that you did some work on it.
Dan: Maybe she rewrote the whole thing.
Will: It wasn't your case, but then you did stuff.
Dan: Yeah. Okay, powering through. We got an email from Travis Jordan in Cheyenne, Wyoming to point out, and this is in context of our discussion of Free Speech Coalition v. Paxton, a pornography case, to tell us that Justice Douglas regularly contributed to Playboy magazine during his tenure. Is that amazing?
Will: Sometimes, I forget the ways in which Justice Douglas was the goat of his era. [laughs]
Dan: That's just amazing. There was the longtime joke. It's like, “Oh, I read Playboy for the articles.” But if Supreme Court podcasts existed in the late 1960s, early 1970s, that's true. We would have had to read it for the articles. He wrote an article called the Attack on the Right to Privacy in the December 1960s edition. Do you think I can have my-- our library will pull us whatever we need. If you need something for your scholarship, what do you think will happen if I ask them to pull that? Will I get in trouble?
Will: At the University of Chicago, the main library has all the old Playboys and bound volumes in the basement. [laughs]
Dan: [laughs] They're bound by year?
Will: Like law journals, yeah.
Dan: But they're not under lock and key. What's the area in the Vatican that has all the books that are forbidden? You know what I'm talking about.
Will: Right.
Dan: Isn't there famously, the red room at Harvard Widener Library that has all the pornographic stuff.
Will: I'm not sure.
Dan: I've not accessed it, but this is a rumor from my time at Harvard, okay.
Will: Douglas was wild. I want to say, I feel like if one of the conservative Justices in the court did the things Justice Douglas used to do, people would be even more livid.
Dan: It would be so entertaining, though.
Will: Yes.
Dan: I think my favorite, I don't know, there's so many great things about it, but my favorite thing is the fact that he just totally lied about having polio and overcoming polio to fight in World War I. [Will laughs] He's buried at Arlington National Cemetery as a veteran, he did not serve in the armed forces. He did not have polio. An unbelievable liar. Okay, powering through long time medium time listener, Barry Hayes wrote in to correct you. So, this is the thing we're doing now. We're correcting people about, I think he was correcting you.
Will: I think it was you.
Dan: Was it me? Okay, well, correct someone, I rarely remember what I say, but to correct someone on the show about saying kerfluffle and not kerfuffle, and then somehow, this is one of the many issues in which you've taken a position in the past.
Will: Yeah. Back in my blogging days, I definitely said kerfluffle, and somebody corrected me and said it was kerfuffle. And I was sufficiently stubborn that I then tried to develop kerfluffle as a related and alternative coinage so I wouldn't have to give it up.
Dan: This is your attempt to make fetch happen?
Will: Yeah, I make kerfluffle happen.
Dan: Did it. So maybe it worked.
Will: It worked.
Dan: If I'm the one who said it, which is eminently plausible because I really don't remember the stuff I say after the episodes, and people often follow up with me about them as if I'm going to remember, and I'm just, “What are you talking about?” Okay, so that is quite a lot of stubbornness. I feel like you've gotten over that. Now, when we get corrected, your approach is just to say Divided Argument regrets the error.
Will: I learned that from you, Dan.
Dan: [laughs] Well, you say that a bunch of times. You get used to it. Okay. Friend of the show, Will Frankel writes in to inform us that inculcatory is a word. Didn't totally make it up. It appears in one Supreme Court brief in a 1968 brief of intervener appellees and appears at least once in legal scholarship. It is British. It is archaic, but I think it's legit.
Will: Yeah, I will say I actually, I did look it up before using it as the title of the episode, last episode.
Dan: I mean, if it wasn't a word, you could have still used it, right? Maybe it would have been a better title.
Will: Yeah, I think if it wasn't a word, I might have gone with “Is inculcatory a word or something,” like the other part of that saying.
Dan: Okay.
Will: I didn't want you to think I was mocking you.
Dan: I don't care. I mock you all the time. And you never fight back-
[Will laughs]
-which is the ultimate kind of power move just to be totally above it all. No need to defend yourself.
Will: I try.
Dan: Yeah, that's like Justice Kennedy, when he was the center of the court, didn't really feel the need to respond to the dissent.
Will: Yeah, well, now you're making me like a less.
Dan: Like, which less? Your strategy?
Will: Yeah, but that was not always the right move.
Dan: Yeah, there's times to do it and times not to do it. I think that two ends of the spectrum, Justice Scalia on the other end, like one of these guys that just will not let it go. Every little thing has to get a response. And I think that's also not the right way to do it. I think maybe you've got to be choosy. Eric Christensen writes in says, “So, over the last handful of episodes, we've learned that Dan Epp's kids go to Catholic school and have tons of toy guns at home, whereas Will Baude's kids go to Woke Lab school and have no toy guns in the home. Soon expect to learn that the Baude’s compost at home in the favorite family movie for the Epps household is Passion of the Christ.” That is not our favorite family movie. We compost. Do you guys compost?
Will: No, we don't compost.
Dan: Really? I kind of thought you would compost.
Will: I like the idea, but compost is really smelly.
Dan: We have a thing in our kitchen. It actually surprisingly doesn't cause that problem.
Will: Okay, but one of my kids did compost this past year at the Woke Lab school and was really into it. So, maybe the composting may be catching.
Dan: Okay. Yeah. We pay somebody five bucks to come get the bucket, five bucks a week.
Will: So, you compost and then you don't even keep the bucket?
Dan: Well, they take it and then they bring us back soil several times a year that Danielle uses in the garden. I don't make the rules in my household. But there's some truth here. I don't know. I might be the social conservative relative to you.
Will: In your personal life?
Dan: Just in terms of my beliefs, not necessarily how we go about our lives, but in terms of-- you're more of a libertarian.
Will: I'm still very much a libertarian. Yes.
Dan: Yeah. Okay, last one. I think I'm going pretty briskly. Hopefully, this is not going to bother our listeners who really like the substance. The mysterious Colonel writes in, I don't know who this person is, but Colonel has written in a number of times before. He says, “During the Low Horse episode, I believe Dan referred to the instrument snake charmers use as a flute. I thought it was a recorder, but according to a Google search, the instrument is a pungi, which is a double reed instrument with two pipes attached to a gourd or coconut shell that acts as a resonator. It's known for its characteristic high pitched buzzing sound.” And he attached a picture and it is a cool looking instrument. It's amazing that there's a snake charmer specific instrument. Did you know that?
Will: No.
Dan: Did you blog about this in your college days?
Will: [laughs]I have an article about this, Dan.
Dan: This is one of your many articles that you intend to write that you're not going to write, right?
Will: Yeah. I don't even know if this is true. I think he's just making all this up.
Dan: I don't know. It seems has the ring of truth. He's got the picture. The picture doesn't look AI generated.
Will: I'm suspicious.
Dan: Yeah. We have not independently researched this, so rely on this information at your own discretion. Okay, so a ton more feedback, follow up, the inbox, for some reason, I don't think our listenership has radically expanded recently, but the inbox is completely overflowing and overwhelming. I think I've complained about this before, but it's great. But I feel bad because I can't handle it. But we do at least read everything even if we do not write back.
Will: Okay.
Dan: All right. So, well, we're only 13, 14 minutes in, maybe less with editing, and we're getting to some substance. Let's do substance.
Will: Okay. So, we've had a bunch of shadow docket action, but maybe it's all the same.
Dan: Yeah.
Will: So, I mean, we've had three different cases. Department of Homeland Security v. D.V.D. et al., Trump v. American Federation of Government Employees.
Dan: Is that FFG? Because there's the other union, AFSCME.
Will: AFSCME is the State Municipal Employees, yeah.
Dan: Yeah. I was wondering if this one had an acronym.
Will: And McMahon v. New York. All of which are cases where lower courts had enjoined various lawless actions. The Trump administration went to the court to get the injunctions stayed, the court agreed to do so, and some number of Justices dissented, 1, 2 and 3 in the different cases. So, I mean, there's things to talk about in there, but the general theme is the court is bailing the Trump administration out of the equity powers of the lower courts.
Dan: Yeah. And I feel like it's trended that way a lot more than we might have thought around April when the Abrego Garcia decision came down.
Will: Yes.
Dan: Right. It seemed like there had been some back and forth, been some wins for challengers, some places where the court didn't step in.
Will: So, there was a Abrego Garcia where the government went to the court and mostly lost after J.G.G. v. Trump, the Alien Enemies Act case, where they went to the court and technically won but kind of lost.
Dan: Yeah.
Will: And then there was AARP around the same time. And then since then, the Trump administration has basically run the table on the emergency docket.
Dan: Yeah, that's my impression as well.
Will: Now, one view is something like the court is now caved. The court was briefly going to stand up for the Trump administration, but now they've caved. A different view is the Trump administration has some smart lawyers, and for whatever reason, he’s decided to listen to them. And so, they figured out from those cases what was too far, like how far they could push. And now they're staying on the side of the line the court wants them on. Now, maybe we could still argue about should the court redraw the line or move the line or whatever.
Dan: Yeah. I don't know if that is a not implausible hypothesis looking at the substance of some of the things that the court has been asked to step in on, some of them do seem pretty lawless in terms of what the Trump administration is doing. But maybe they're making better arguments. I'm not totally sure.
Will: Well, I mean, in some of the cases, it's an issue of state standing or the lower court. One of them, the AFGE case, that picks up eight to one votes, the administration has an executive order requiring agencies to do a bunch of things that might be illegal. When the lower court enjoined the executive order and the court said, “Well, you can't enjoin the executive order, you have to wait and see what the things are,” because the things may actually not be as illegal once they're implemented.
Dan: And the order at least seemed to suggest that they were going to do this consistent with law.
Will: Right. But then often the challenges to the actual orders then have their own procedural problems, like the people who get fired have to go through the merits of objection board, which they don't want to do, and takes a long time and so on. So, the whole point of this suit was an end run to go after the executive order, so you didn't have to go through the administrative process. And again, in each case, we can get into the weeds and debate them, but I think that's a big part of it. Now there is the fair critique that might be familiar to people who've heard the shadow docket refrain too much that the court is not saying a lot in these cases about what's going on.
Sometimes it's saying something like what I just said, “Well, okay, the executive order is unlawful but you sued the wrong thing.” But sometimes in McMahon v. New York, the state standing case, the court says nothing of a wide state injunction. He doesn't say, it's because this is a state standing case and state standing is being used as an end run around the MSPB or whatever. It just doesn't say anything.
Dan: Yeah, yeah. Here in AFGE, you at least get a, I don't know, one paragraph of merit's discussion of legal analysis.
Will: Yeah, I think that's better.
Dan: Yeah, I think it's actually a lot better. It's a lot better where in these shadow docket cases, there often are multiple arguments that have been made, and we at least know a majority of the court was at least intending to base their decision one of those.
Will: Right. Now, from that, I will say I infer that in the cases where they don't say that, it's because there is no ground they all agree on.
Dan: No ground that's defensible. [laughs]
Will: Well, I mean, that's the worry, right?
Dan: Yeah.
Will: Or it could be probabilistic. I remember during Trump v. Anderson, plenty of people said something like, “I've decided, Will, that your Section III argument is wrong, and I haven't decided yet which reason it's wrong.” [laughs] But, if you have an 80% chance of being right on each of the five issues and you need them all to win, then you're probably wrong, just by math.
Dan: If they're not correlated.
Will: Yeah. If they're uncorrelated. I'm sympathetic to that. The one other funny tension is, of course, we had Justice Kavanaugh in CASA, sort of waxing supremacist about how it was the court's job to lay down whether these stays could issue or couldn't, and they were stepping in to provide a nationwide resolution. And when the court steps in to just stay a lower court ruling without explaining at all why, I think the Justices should not be surprised if the settling power of those decisions is lower. So, we know that this injunction by this plaintiff was wrong for some reason. But if somebody enjoins McMahon with different plaintiffs or different whatever next week, is the court going to be frustrated about that or not?
Dan: Yeah, because I thought the whole premise of his decision is, “We're here, we're open, we have to resolve the legality of these things on an interim basis. We're going to do it.” And I guess sometimes they're not going to necessarily resolve the legality because there could be procedural reasons why the court thinks a particular injunction can't go forward, etc.
Will: Or the court could even think on the merits the injunction probably should go forward, but we've balanced the equities and decided to stay it anyway for whatever reason. And when they don't tell us anything about that, then they're not settling very much. But it's their choice, I guess.
Dan: Yeah. Should we say anything more? So, I mean, that decision AFGE, 8-1. I guess whenever we talk about these shadow docket things, we always have to add the clarification that you don't actually know that there could be some people that-- [crosstalk]
Will: Justice Alito secretly dissented.
Dan: Yeah. Because it's not like a majority opinion, but explicit concurrence by Justice Sotomayor, who basically agrees with what the court is saying. The actual plans to reorganize are not before the court, this is just about the executive order. So, it's not time to challenge that. It's not the right thing to challenge. But a very heated dissent. Solo dissent by Justice Jackson, who has really turned up the temperature.
Will: She's cooking.
Dan: Yeah. Quite recently.
Will: Yes. Well, sort of.
Dan: Yeah. You don't think so? I mean, post CASA, you don't think that we're really seeing a kind of tick up in the rhetoric in her decisions?
Will: I feel like I'm still grappling to really get her style. I do feel like in some ways they pick up the rhetoric, but then parts of them are very dry and sometimes they pick up the rhetoric in an inconsistent way. They're not in the Scalia mold where the whole dissent is just dripping with whatever emotion.
Dan: Yeah, I don't know. I feel like these are a little bit-- Here she calls-- she says the majority is hubristic, basically seems to accuse the majority of completely disregarding normal procedural rules about deference to district court factual findings.
Will: Yeah, No, it's true. And maybe it's just that you can only turn the temperature up so high on an egregious violation of Rule 65's clear error standard. She's trying to say this procedural issue really has a big substantive thing, and that's one of her big themes, is that these technical procedural things really should be seen as less technical and more fundamental. And it was kind of her CASA refrain as well.
Dan: And here one interesting thing about it is she specifically calls out the lack of explanation. After going through her analysis, she says, “But today this court once again ignores all this while casually discarding 55 pages of evidence based lower court reasoning. On what grounds does the majority deviate from the district court's fact-based findings here? Has it found that the court below clearly erred with respect to its assessment of the evidence? Has it opted simply to ignore the well settled deferential standards of review? Has it made its own factual findings about the nature, scope and extent of the government's reorganization activities? All of these possibilities are problematic. And because the court provides no explanation for its likelihood of success conclusion, the answers for these crucial questions are also anyone's guess.”
I mean, the court there did at least give us a little bit of reasoning, though maybe that's not the right case to make that claim in.
Will: Yeah. Maybe she made the claim in the other cases too, and then-- I don't know.
Dan: But on that topic, Adam Liptak had an article about unexplained orders that quoted me fairly extensively, had asked me for comments and I gave him a more nuanced comment that reporters usually like. And he actually used all nine nuance which was basically like their costs and benefits of unexplained orders which is basically my view, which is not as quotable as some people who like to breathe fire about them, but that is my view.
Will: One of my favorite things about Adam Liptak, who I think is one of the best in the biz, is that he's one of the only legal reporters who I feel like I can just talk to and trust him to understand what I'm saying, or report it accurately with nuance. With many reporters you otherwise have to be careful not to say things that are true but could be taken out of context or careful that they want you get you to say 21 things and they can use the one that fits the narrative or whatever.
Dan: Yeah. He also engages with legal scholarship, I think, more than any other reporter.
Will: I agree.
Dan: He's stepping off the day-to-day Supreme Court beat though is my understanding.
Will: Yes, and I think his replacement must have been hired or at least there used to be a job posting for his replacement that has since been closed. I assume somebody's--[crosstalk]
Dan: Oh, so I missed my shot?
Will: Well, it may not work out for them. I'm not sure.
Dan: [chuckles] Okay, next time.
Will: If you went to the New York Times, would you still get to do the podcast?
Dan: Don't know. They might have to seize control of the podcast. This might become Divided Argument presented by the New York Times. How would you feel about that?
Will: There are some media hosts I'd rather have [Dan laughs] but we’ll talk about that later.
Dan: Okay, so should we talk about the others at all D.V.D., which is a follow up from an earlier ruling. Did we talk about the first D.V.D.?
Will: I believe we talked about the first D.V.D. The first D.V.D. was the same problem where the lower court granted injunction. The court stayed with no explanation why it was plausible. The reason was because there's a jurisdictional bar in the immigration statute. But again, [chuckles] nobody said anything about that. And then there was this fight about, this is the second D.V.D., then the lower court, there was a fight about what orders fell with the original stay because there were a group of people who were in US custody in a third-party country in Africa who the district court had placed under kind of a protective injunction saying, “Don't turn them over because they might be killed.”
Dan: Seems reasonable.
Will: And the question was, “Can we still do that? Because was that related to the previous injunction?”
Dan: It was like a remedy for failing to follow the previous injunction that was itself stayed.
Will: Yeah, like in a nutshell, the district court said, “Don't remove any of these people without providing them with due process.” But eight of them had been removed. They were in Africa. And so, then the court was like, “Well, hold on to them, don't give them away because you didn't bring them due process and I might need to do something with them.” And so, on the one hand you could say, “Well, it's a different question of what to do with the people who were wrongfully deported while the district court's injunction was in effect.” But you could also say, “Look, the whole premise, the district court's order has now been stayed and once it's stayed, it's reversed.” It's robbed of legal effect, I think is—[crosstalk]
Dan: Yeah, so stuff built on that no longer is valid either, I guess. And here we have a nearly three page, two-and-a-half-page opinion of the court.
Will: Yeah. They sort of grapple with what's going on and they say it is right that the lower court opinion has been divested of enforceability because of the way it's operating. There might be other questions about who's obeying the order and not. And so on, but those come back to us.
Dan: And then interestingly, here we have a concurrence by Justice Kagan, who was part of the dissent in the original D.V.D. case, but now says, “I voted to deny the previous day application. I continue to believe this court should not have stayed the April 18 order, but a majority of this court saw things differently. And I do not see how a district court can compel compliance with an order that this court has stayed.” So, I guess-- crosstalk]
Will: Steve Vladeck was very critical of this concurrence. So, she's not accurately citing United Mine Workers for this proposition. Like a lot of people on the left were very critical of Justice Kagan for suddenly going to the dark side.
Dan: Yeah, I don't know. I mean, reading the various opinions in this case, the short majority, Justice Kagan's concurrence and then the six-page dissent from Justice Sotomayor. I don't know. I found what the majority was doing plausible, persuasive, that if there is this underlying stave at a preliminary injunction stuff that is ultimately resting on that, also can't go forward. But I'm also very disturbed by the underlying the previous stay.
Will: Yes, I find the underlying conduct very disturbing. And I do think the one thing I find disturbing with this whole pattern of behavior, I guess is that the-- and this is a paper I'm working on, the executive branch is in a sense seeking equity in all these cases. They are going to the court and asking for extraordinary relief, usually under the All Writs Act. Every time they want one of these things stayed that involves balancing the equities. And I guess I think it should be relevant. He who seeks equity must have clean hands. And I'd like to see the court grappling a little bit more with the question of how that applies. I think how that applies to the executive branch is actually a complicated question.
I mean you could have the Justice Jackson view essentially if the government's hands are so thoroughly unclean that they should just lose all these cases or we could have some other view. But I worry, I'm not sure the court is grappling with that question.
Dan: I guess I would also like to see a little bit more from the majority about its theory of irreparable harm because we are seeing a lot of these cases where it does seem like the individuals who are seeking relief, or the class of individuals are really facing very serious harm. And the harm to the government is much more abstract.
Will: Well, the court has coalesced behind this maxim that basically the government always has irreparable harm.
Dan: Yeah. And that seems like it can't be right.
Will: [sighs] It could be right. I'm not sure it's right, but it could be right.
Dan: I mean even in cases where the irreparable harm is like this person is likely to be tortured or killed or subject to horribly abusive prison conditions for the rest of their life.
Will: Well, I mean I guess formally the court thinks about the irreparable harm factor only in one direction. It's like, is the person asking for the-- [crosstalk]
Dan: Of the movement.
Will: Is the movement irreparable harm?
Dan: Yeah.
Will: But it's true that if the movement has irreparable harm but much more irreparable than the nonmovement [laughs] who had irreparable harm below. Now maybe that's balancing the equities. I'm not sure.
Dan: It seems like that should be balance of the equities, right?
Will: Yeah.
Dan: If it's an equity then you're supposed to balance them.
Will: Yeah. So, I agree that the Supreme Court's equity work, I'm not sure I would give it an A minus.
Dan: [chuckles] Okay. And different grade on the Chicago numerical scale. All right, so McMahon v. New York, this one has the least explanation of what the court is doing, to wit, no explanation.
Will: Yeah, but it's okay because James Burnham on Twitter provided a very good explanation.
Dan: Oh, what is it?
Will: So, his explanation, he's a former DOGE lawyer, once a former White House counsel, Jones Day lawyer, UChicago grad. His explanation was, in a nutshell, this is a state standing case where the state is end run around the merits of suspension board, that the reason the state is suing is because all the actual people can't have these procedural bars. And the court is recognizing that's a totally bogus end run.
Dan: Is that because the court is embracing a narrower vision of state standing that was not resolved by CASA?
Will: Well, that's where you could say, is it the state doesn't have standing at all? Is it the state might technically have standing but that's a good reason to imbalance in the equities, not let them grant injunctive relief. I mean, you can have a series, is that implied preclusion of adjunctive relief? I think you could walk that insight through several different doctrinal boxes.
Dan: So, wouldn't it be helpful for them to tell us.
Will: Well, it could be helpful for them to at least say, for the reasons given in James Burnham's tweet, [laughs] the injunction stayed. But I think we can just deem that adopted by silence.
Dan: By silence in the face of the tweet?
Will: Which might have postdated the decision.
Dan: Okay, I believe that to be the case. But here's where we have a longer dissent by Justice Sotomayor, joined by Justices Kagan and Jackson. Basically, this is about a bunch of firings by the Department of Education. And the question is, “Is this legal?” And in this case, the government's just saying, “Well, we're just kind of streamlining.” Whereas Justice Sotomayor's dissent points out the fact that the administration has very clearly, over and over said, this is about shutting down the entire Department of Education, for which there's, I think, a very plausible argument that's just not consistent with the Take Care Clause, that for the executive branch to just destroy an agency created by Congress with a statutory mandate, you may disagree with that. Maybe your vision of the unitary executive says that they can always do that.
Will: But I don't think they can always do that. I do think what's actually happening is ambiguous. I'm sympathetic to the majority in the sense of they may well be saying they're going to destroy the Department of Education and not actually doing it, and that's not clear you should grant relief. That said, I do hate to be like a partisan scold, but can you imagine if President Biden had repeatedly announced that he was just going to destroy the immigration system, that he was opening the borders? He was opening the borders and getting rid of the immigration laws, and then did the exact things he was doing, which were not opening the borders, but were adopting laxer immigration policies in ways that were debatably legal. I think the Supreme Court would have impeached him or something. He never would have gotten away with that.
Dan: Yeah. And here what I think what the Trump administration is doing with respect to the Department of Education is more outrageous than what Biden did with respect to immigration, right?
Will: In the substance, even apart from the labeling.
Dan: Like firing almost half the people in the department is a lot closer to-- [crosstalk]
Will: I don't know. It depends on how all these people are doing. So, I'm not sure-- [crosstalk]
Dan: But if Biden had fired two thirds of ICE.
Will: If Biden had said, “I am abolishing ICE” as an agency and then fired two thirds of them and the remaining third were still doing their jobs, and we claim they're still doing their jobs just as well.
Dan: That would not have survived. That would have died in 10 minutes.
Will: I tend to believe that it's true. I'm actually not sure it's a partisan point. It might be. It might also just be we've all so baked in the Trump, the don't believe Trump's tweets thing that at this point, nobody can perceive him in the same way as they perceive any other person.
Dan: I mean, that seems like a very Trump first administration attitude.
Will: Yeah, well, I think some people are still stuck in the first administration.
Dan: Right now, he kind of means what he says.
Will: [laughs] Kinda. Lot of the time.
Dan: I mean, he's following through on the stuff-- the crazy stuff he said he was going to do.
Will: Well, yeah.
Dan: What is he not following through on?
Will: I'm not sure. Is he following through on the tariffs? Every day, I can't tell.
Dan: I think it depends who gets in the room with him.
Will: Right.
Dan: So, did you see this article by Jeff Toobin about how the administration is hoping to put Emil Bove on the Supreme Court? The Justice Department official who's been allegedly responsible for a lot of the troubling things coming out of Department of Justice and it just got passed through the Senate Judiciary Committee. Remains to be seen whether he's confirmed by the full Senate for a judgeship on the Third Circuit but seems quite likely to get confirmed. What do you think about that?
Will: I'm speechless.
Dan: In what way?
Will: Not good.
Dan: Okay. I've wondered this, which is how do we feel about doing this podcast if the court even gets far Trumpier, let's say that he puts on some just absurd people on the court. Do we still just do the podcast?
Will: And look, if Emil Bove writes opinions in emergency docket cases, I look forward to reading them.
Dan: Yeah, but I mean, what if we just find them just completely lawless MAGA opinions? We've gotten criticized from my friends on the left, which I think you have some too. We're not just delegitimizing the court, we're taking it seriously as a legal institution.
Will: Look, I mean, the Supreme Court has issued lawless, ridiculous opinions in the past, [chuckles] and we should talk about that. And then if they issue equally or even more lawless opinions, we'll talk about it.
Dan: Okay. Well, we will see what happens.
Will: At least. I will. Maybe you'll quit.
Dan: Yeah. I mean, it's not obvious there's going to be a vacancy. We obviously didn't get one in the first year of the presidency. I think the time for there to be a vacancy would have been shortly after the term that's usually when they're announced. And I don't think Justices Alito and Thomas are announcing their retirements this summer. Doesn't seem like it.
Will: Yeah.
Dan: So, I don't know whether the kind of stuff coming into the administration is going to make those Justices more or less likely to want to retire.
Will: Yeah. If you were a Republican appointee who had partisan motivations for leaving, you could still leave at the end of the 26th term and count on a confirmation for the midterms.
Dan: Yeah. I mean, that's what Biden did, right? That's what Breyer did under Biden. I mean, he didn't go the first year, he went the second year, right?
Will: I believe you. All the years have blended together in my mind.
Dan: Okay.
Will: That sounds right. But then you're going to want to claim that Trump was elected President like 10 years ago or nine years ago, and that seems so implausible that it's hard to remember.
Dan: Yeah.
Will: Talk about our case.
Dan: Okay. Yeah. I think we got through all the shadow docket stuff. We've only been recording for 40 minutes, and by the time the editing occurs, this will be less than that. So, I think this is a speedy episode. And we've got one majority opinion to talk about.
Will: Diamond Alternative Energy v. the EPA. A standing case.
Dan: And continuing a theme, this is another one where Justice Kagan has taken some heat for joining the conservative majority. You don't think so?
Will: I didn't know anybody that's plausible. I just didn't know.
Dan: Yeah. There was this kind of narrative floating around at the end of the term about, “Has Justice Kagan joined the red team?” Which I don't think is correct.
Will: Because I lost the narrative from the right about was Justice Kagan unprincipled for not joining CASA when she'd previously criticized nationwide injunctions. And I think I wrote a little bit on the blog about why, actually that might make sense. She was not necessarily being unprincipled, but everybody's watching Justice Kagan.
Dan: Yeah. I mean, no matter what you do, you can't make everybody happy all the time especially now with all these high stakes decisions.
Will: Yeah.
Dan: Okay, so standing. You're a big standing guy, right?
Will: You're saying I like it or I know about it?
Dan: You know about it. I mean, I don't know whether you like it per se. But you like the topic, right? You write about it.
Will: I've written about the topic. It is the section of the Hart and Wechsler's casebook that is currently my primary responsibility, increases my interest in writing on the topic. I go through [chuckles] different phases, whether I like it as a doctrine or don't, depending on how you think about it. But yeah, I mean, look, I think it's an important feature of our courts that they only decide cases and controversies between the parties and standing is currently the most important doctrine that is about that fact. Although sometimes the court gets it very wrong. Sometimes it gets it very right.
Dan: So, we have an opinion by Justice Kavanaugh, who's a standing hawk. I think he's pretty interested in the issue. He's written about it.
Will: Yeah. Although is he a hawk or a dove? Maybe the question we have to figure out in this case.
Dan: I guess I was trying to capture the idea that he really likes it, and I think he is hawkish in other opinions. He's going to conclude there is standing a 7-2 opinion joined by conservatives plus Justice Kagan and liberals in dissent. So, what do you think? Is this one of the ones that you think they got grievously wrong?
Will: I struggle with this one. So, Justice Kavanaugh has at least two other major standing opinions. One is his opinion in TransUnion several terms ago where the court really emphasizes that even if Congress has given you a cause of action, that's not necessarily enough for standing. If the court isn't satisfied the nature of your injury is sufficiently concrete in historical terms.
Dan: Yeah, I had a lot of problems with that one.
Will: Me too. So, I think that was very wrong and I've written about that. And then FDA v. Alliance for Hippocratic Medicine last term, where Justice Kavanaugh said that the various anti-abortion doctors who wanted to get mifepristone taken off the market- the doctors who did not take or prescribe mifepristone did not have standing to complain that the FDA was letting other doctors prescribe it before they both take it. I think a case we followed and I thought was very right. So, between those two, you've got a real standing is important thing. And now we complete the Kavanaugh standing trilogy with an opinion about people who do have standing. Fossil fuel manufacturers.
Dan: Yeah.
Will: Okay, so the basic setup here is the plaintiffs are fuel manufacturers who are upset about the California/EPA rules that require more electric vehicles. And so, the theory of standing is, I guess, pretty straightforward. If you require automakers to make more electric vehicles and fewer gas-powered vehicles, then they won't buy as much gas and we, the gas people, are upset about that.
Dan: That seems plausible to me.
Will: Right. Okay. So, on the one hand, that's plausible. On the other hand, remember the theory of the doctors in Alliance for Hippocratic Medicine was if you prescribe more mifepristone, then if mifepristone is legal, then more people will take it. If more people will take it, more people will have complications, and then we will have to deal with the complications. Isn't that kind of the same chain of logic? It's like if this regulation affects other people, and then what they do, which is going to be true in some way on the margins, will affect us.
Dan: Yeah. I'm having trouble articulating why, but that one feels like it's a little bit more indirect. It feels like their theory does not actually get at the thing that they're hoping to challenge. It's really a bank shot. Whereas here, the fuel producers, it just feels much more direct to me but that's an intuitive sense.
Will: Well, one of the holdings of this case is that you should resolve these cases on the basis of common sense. I forgot Kavanaugh also had that opinion in Texas, one of the many Texas v. Biden cases where Texas did not have standing to complain and that the Biden administration was not enforcing the immigration laws another one of these. And so, I think the big question in this case-- crosstalk]
Dan: The one with the five reasons, right?
Will: Yeah. Is that intuition you have a matter of kind or of degree? Because one thing that Justice Kavanaugh especially had said in a bunch of these cases, drawing on a bunch of other cases, it's not something he made up, was that there's a difference in kind between a challenge brought by somebody who is the object of a government regulation and a challenge brought by anybody else. So, if you are the person being regulated and you think you're being regulated illegally, that's classic standing and everything else like sometimes there’s standing. The automakers, they have standing for sure. And then sometimes we get standing to other people, like competitors who want to complain that their other parties aren't being regulated enough. But those are all more questionable. That was difference in kind argument.
Will: And so that is what the EPA wants to say here or the respondents want to say here is they want to say, “Look, the people who should be challenging this are the automakers. They're the ones being regulated. And you, the fuel manufacturers, are a third party, you're downstream of this. You've got some skin in the game, but you're not the people being regulated. The people being regulated are the ones who are supposed to sue. That's one argument. And interestingly, the court first flirts with what to say about that. It is like, part A, maybe the fuel producers here really are being regulated. Maybe they really are the object of the regulations. I mean, they're not being regulated, but maybe they're the object of the regulations and Justice Kavanaugh then supplies a series of examples.
For instance, if the government bans hot dog sales in stadiums, then maybe hot dog manufacturers are the objects of regulation. If the government prohibits aluminum bats in Little League, keeping up the baseball metaphor, if the government bans bookstores from selling certain publisher’s books, then the publishers, not just the bookstores, can sue. In Pierce v. Society of Sisters, we let a private school challenge a law about parents sending their kids to public school. So, one option is to say somehow, they do count as the regulated party or the object of the regulation, which is some new phrase that's not quite the same as the regulated party. Is that your intuition?
Dan: It sort of is. I think that's what I was getting at. When California tries to enact these stricter emissions protocols, an electric vehicle mandate, it is doing it because it wants there to be less greenhouse gases. And that means they're doing it because they want fewer vehicles to consume gasoline, right?
Will: Yeah.
Dan: When the FDA makes mifepristone legal or whatever, it is not doing it with the goal of causing-
Will: Complications.
Dan: -doctors to have to deal with more complications. That feels very different to me.
Will: Unintended versus intended consequences?
Dan: Yeah.
Will: Because if the number of people who take a drug doubles, then presumably the number of complications will roughly double.
Dan: Yeah. Is it kind of like the Catholic doctrine of double effect? You can give someone more pain medicine to alleviate pain, even knowing it's going to cause them to die, but you can't do physician assisted suicide.
Will: Right. I was wondering-- all right, what about this one? This came from a colleague. We do a Chicago - Northwestern Fed Courts gathering every summer where the Fed courts professors at both schools get together and parse through these opinions and talk about them. So, somebody gave me this one, which is Justice Kavanaugh has the hot dog hypo. They say stadiums, ballparks, can't sell franks. The franks consume not just the ballparks.
Dan: I mean, the producers.
Will: Yeah, the producers. So, what about the bun manufacturers? They say no selling hot dogs in stadiums. And you can totally sell buns if you want to. You can put an Italian beef on the bun, you can [unintelligible [00:46:18] people eat. But of course, the bun manufacturers probably are going to lose business. Do we have the intuition that the bun manufacturers can sue to complain with the fact that you can't sell hot dogs anymore?
Dan: I like that. I like that one. It does feel different, right?
Will: A little bit.
Dan: Right. Presumably in that hypo, they're doing this, let's just imagine the way I'm fleshing out that hypo in my mind is I'm imagining they're doing this because they think the hot dogs are unhealthy. They give people processed meat, gives people cancer.
Will: Maybe the vegetarians, they're like, “We don't like that.”
Dan: Maybe that too. But they're not doing it because of the buns.
Will: Right. The buns are fine. Now, that said, again, it's totally-- we know the bun sales will go down because who buys a hot dog bun, without a hot dog.
Dan: It does feel different. But again, it's not obvious to me that it is a difference that should be legally relevant because I guess I'm having a lot of trouble writing a two-sentence explanation of what makes them different other than just-- feels different. And I think feels different is maybe not a good legal test.
Will: Yeah. Okay, so then that gets us to the other hook. So, the courts have abandoned this flirtation with the idea of maybe this falls into the special category of objects of regulations. They're just like, “Well, maybe it does.” Moving on, even if they're not a regulated entity or the object of a regulation, we just have to ask, “Is the third-party behavior likely?” When third party behavior is predictable, common sense inferences may be drawn. And so, look, it stands to reason the point of the regulation is to reduce demand for fossil fuels. Stands to reason, that may be what happens.
Dan: Yeah. And I guess one question here that I don't feel like I get a clear answer for is what is the standard of proof for establishing because there were some affidavits, but there weren't expert studies. I mean, what is your intuition about the answer to that question? If you're a plaintiff and you need to establish standing, and standing depends on some theory of causation and redressability, do you have to establish that by a preponderance of the evidence at the outset? That doesn't seem right.
Will: Well, right, so this is where both-- I'm kind of fine with this opinion in the sense that it seems commonsensical and plausible and so on. But in Lujan, one of the court's standing decisions that give us TransUnion, the court claims that the way you prove standing is shaped by the civil procedure. So, they say in the complaint, you need to make allegations sufficient to establish standing. Then at summary judgment, you need to have introduced enough evidence from which a reasonable finder of fact can find standing. Then at trial, you need to prove standing by preponderance of the evidence. It's just a thing. So, you need the same kind of evidence you need for all the other things in the case.
Dan: Right. Because if your whole theory of the case is why you deserve money damages is because the other side caused your injury, it can't be the case that you actually have to prove they caused your injury on the front, before you even get to your right to prove that they caused your injury.
Will: Now, that said, I don't think courts actually do that. It's not like if at trial the jury finds that the defendant was innocent, they didn't hit your car at all. We don't then go back and say, “Oh, actually it's now vacated for lack of jurisdiction because you failed to prove causation.”
Dan: Yeah, that can't be right.
Will: So, it's not clear to me when we do and don't treat standing as a threshold thing versus something that tags along throughout. So, the court sails through that commonsensically. And then here's the other case. So, Allen v. Wright, which used to be a kind of chestnut fed courts case, recently came out of the Hart and Wechsler casebook because I think it's become dated and maybe as of this case has been implicitly overruled. I'm not sure. But this used to be one of the foundational standing cases. So, the challenge was brought by families of children sending their kids to schools that were becoming increasingly nonracially diverse, increasingly sort of de facto segregated. And they were suing the IRS, claiming this was caused by the IRS's granting tax exempt status to segregated private schools that it shouldn't have.
So, they're saying, “You are wrongly granting this tax exemption to-- you're wrongly subsidizing these segregated schools and that is causing our children to receive more segregated schools because the white kids are fleeing the public schools for the segregated schools.” And the court says “No standing.” And the dissent says, “Come on, haven't you heard of supply and demand?” Obviously, if you subsidize the thing, then more people use the thing, and if more people use that thing, they're not using the other thing. And so, what's implausible about this theory of causation?
Dan: So, you think that's not the law anymore.
Will: And the standard answer till now had been, well, that's because of the first thing that we just like if your theory of causation rests on how other people will respond to regulation. And we're just very skeptical of that. Even if mathematically it's true, we're just skeptical of it. And now maybe we're not skeptical of it when it's hot dog makers or fuel companies.
Dan: Yeah. But again, that does feel more. I still have that gestalt feeling of indirectness with respect to that case versus this one and the hot dogs, etc.
Will: Yeah. And maybe again your purpose test works here is you'd say even if it's true that the Reagan administration is going too soft on these private schools, it's not because their purpose in doing so is to segregate the public schools, but they're not the object. You might be collateral damage like the bun manufacturers but not doing it in order to cause that effect whereas here maybe we think California really is trying to put fuel makers out of business.
Dan: Yeah, but again, I don't know how you tie that into the standing inquiry, right?
Will: Right.
Dan: So, it's causation right in both cases you can make a causal claim. Redressability in both cases you can argue that if you win, that's going to fix the problem, right?
Will: Yeah.
Dan: So, where in the doctrine would that be coming from, injury? Is it not an injury? That doesn't make sense either.
Will: Right. Well, of course, putting it under redressability.
Dan: Yeah, but that doesn't seem even if your theory is indirect, it could relate to, if it's sufficiently indirect, you can say it's just too speculative that it's going to make a difference in the end. Even if you win, there's like eight different things between winning and actually getting what you want.
Will: Yeah.
Dan: Right. And fair enough. But in some of these cases, I mean, we do think if we buy that there's going to be an impact, then it seems like maybe there will be redressability.
Will: Well, rather-- So, now I think California would say, “Well, here's the reason there isn't redressability is that the whole point of these regulations is to reshape consumer preference and the nature of the industry.” And once it succeeds, the regulations won't be necessary anymore. The point of the regulations are to move us from one equilibrium to a new equilibrium, but in five years we'll be in the new equilibrium. And so even if you get rid of the regs at this point, it's not like people are going to go back to buying gas guzzlers. Things have changed. Electric cars are no longer seen as weird. There are now enough charging stations that it's not-- and you build the network effects.
Dan: It seems weird though, right? As the court notes, shouldn't that mean that they don't need to defend this, [Will laughs] they don't need to defend the legality. It's like if the argument is you need to [chuckles] reject this suit against this regulation because this regulation is totally unnecessary and is not going to have any real-world impact. It's sort of self-defeating.
Will: Well, maybe. And so, this is always a funny thing in all redressability cases. And this sort of came up when we talked about the redressability DNA testing case the other day. It's like, if you're really saying it's not redressable, then why are you fighting the remedy? [laughs] Why don't you just let the-- Now I take it the answer would be, “Well, California does care about the general question of how much authority do they have to regulate things.”
Dan: Yeah. For future cases.
Will: For future cases. It's just this regulation isn't going to matter to these people, would be theory.
Dan: Yeah.
Will: And this is where the proof thing. Again, that doesn't sound right to me. But it's not so frivolous that I would think, like, don't even show me the evidence.
Dan: Yeah.
Will: Right.
Dan: But here, I mean, this does seem like there's more plausible redressability than in Gutierrez, right?
Will: Yeah. All the court finds this redressability there too.
Dan: Yeah. But I mean, just in response to that argument.
Will: Yes. Yeah, I guess that's right.
Dan: Right there. I mean, there's this, you get this order, but the order doesn't actually compel the prosecutor to do anything. Is the prosecutor going to comply or are there other reasons? I mean, here it does seem to me imminently plausible, likely that because of this regulation, one fewer gasoline powered vehicle will be sold. Maybe it's not going to make a big difference, but it does seem quite likely that there is that level of impact, right?
Will: Well, we need not just one fuel vehicle be sold, what we need like, because of this regulation, one less gallon of gas will be sold.
Dan: Yeah. Okay, but it's the same, right?
Will: Well, may or may not be, but okay.
Dan: I mean, if one fewer vehicle is sold, then that vehicle is not going to need to be gassed up.
Will: Although, it could be that some person is keeping their old vehicle which is less fuel efficient.
Dan: Yeah, fair. Maybe you need a little bit more.
Will: Yeah, but it's fine. Yeah. Look, I mean, again, my gut instinct is they're probably right. [laughs] My common sense economic intuitions match Justice Kavanaugh's common sense economic intuitions. So, common sense is great if we all have it in common.
Dan: Yeah. And the dissents are not really about whether that standing analysis is correct.
Will: I mean, they partly are. They partly make this other point that in a different sense [chuckles] this is all pointless because we all know the Trump administration will revoke these regs. In fact, told the court they're going to revoke these regs and they should hold the case in abeyance.
Dan: Yeah. Or just vacate and remand because the DC circuit seemed to be confused about when the regulations were going to be effective. There seems to be a factual misunderstanding. So, even Justice Jackson in her kind of fiery, but this one's fiery, right?
Will: Yes.
Dan: In her fiery dissent, she says, “The majority's substantive standing analysis is not entirely implausible.”
Will: Right.
Dan: I mean, she's really not taking aim at the actual analysis. She's taking aim at the bigger picture of standing doctrine. And she's taking aim at the majority's choice to handle the case in this way procedurally.
Will: She also might think something like, “Look, if you want to overrule Allen v. Wright, great.” I've thought that all along. It's weird to overrule Allen v. Wright as applied to fuel companies and not as applied to black families. Now, again, maybe they're not overruling Allen v. Wright because their common sense about how school segregation works is not the same as their common sense about how the fuel industry works, which is the other theme she sounds, that was interesting. She makes this point several times that the cord is in the pocket of big business or she puts it a little bit delicately. She's like, “There's an allegation or an appearance the court is in the pocket of big business and this decision will lend fuel to that.”
Dan: Can we just quickly get through this Sotomayor? She has a three-page dissent before we dig into the Jackson dissent, about which there's a lot to say, which really is just zeroing in on the why are we deciding this argument. So that's three pages, just her and then we have the Jackson dissent, which has a lot in it, including what you're talking about. This is very explicit discussion of the court's appearance, right? Striking.
Will: I agree. Very striking. I mean, she's clearly trying to do something different, right?
Dan: Yeah. And she basically gets into all the debate about whether the Supreme Court is too business friendly. She points to various arguments that people have made. But she also says some knowledgeable researchers have suggested that this reputation is unfounded. And she cites friend of the show, Jonathan Adler, who has pushed back on that argument.
Will: [unintelligible [00:59:59].
Dan: Yep. But not for that proposition-- [crosstalk]
Will: Yeah.
Dan: Jonathan Adler, who I recently persuaded to buy an automated temperature regulator for his Big Green Egg smoker and apparently-- [crosstalk]
Will: Do you have a Big Green Egg?
Dan: I do. And I have a Flame Boss temperature regulator. It's really nice. You can set up your brisket the night before and wake up in the morning. You've got a perfect brisket.
Will: I've been the coveting one.
Dan: They're really cool.
Will: Yeah.
Dan: They're not woke.
Will: I know, but I'm not so woke.
Dan: No, no, you're mid woke. So, it's pretty interesting, very much. We've seen this at various points in recent years, this more explicit discussion of the Court's legitimacy and its appearance, right? Famously, we saw a lot of that in the Casey abortion case, but we saw that come back in the dissents in Dobbs. We've seen some of that in Justice Barrett's opinions here and there.
Will: Certainly, the concurring opinion in Trump v. Anderson, which Paulsen and I scolded her for.
Dan: Yeah.
Will: So, yes. And we're going to have to wrap this up pretty soon, so I don't want to cut it short too much, but here's what I find weird about this charge from Justice Jackson. It's like the you're engaged in selective invocation of redressability.
Dan: Yeah.
Will: This decision comes out, like, what, a week before Gutierrez v. Saenz [Dan laughs] where the Court finds redressable, with Justice Jackson's dissent, an even more speculative theory that helps a death row inmate who's committed some crime. So, she must know that at the time she's writing this dissent, [laughs] she must know the Court is about to issue another opinion in which they will now refute my selective charge. Don't you think that really must have pissed Justice Kavanaugh off.
Dan: Yeah. And he has a very short, somewhat dismissive response to her where she basically just says, “That's not true,” and then cites a chain of recent standing decisions, some of which tilt substantively liberal, some of which tilt substantively conservative. Just to clarify, Justice Jackson did not dissent in Gutierrez, which is what you said a second ago.
Will: Sorry, I am with her support, not her dissent. Yeah. The point is, she won that one. Like, it would make sense to me if these cases came together-- [crosstalk]
Dan: On a slightly more speculative redressability degree, right?
Will: Right.If I were Justice Kavanaugh, I would have just held this opinion and not issued [laughs] it until after Gutierrez.
Dan: Yeah, that's fair.
Will: I'm still working on the footnotes, sorry.
Dan: Okay.
Will: All right.
Dan: Okay. You're out of time.
Will: I'm out of time. Our listeners are out of patience. Thanks for listening. Thanks to the Constitutional Law Institute for sponsoring all of our endeavors. Thank you again to all of you who've been sending in many emails and feedback. As Dan says, we read them all, even though we cannot possibly respond to them all, or we would no longer have time to do the show.
Dan: Please rate and review the show wherever you get your podcasts and send it to your friends and colleagues. Website, dividedargument.com, for transcripts blog.dividedargument.com, for commentary from the larger universe of Divided Argument contributors, store.dividedargument.com for merchandise, send us an email to our overflowing inbox pod@dividedargument.com and leave us a voicemail 314-649-3790. If there's a long delay between this and our next episode, it's because we've reached an impasse between Will's wokeness and my social conservatism.
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