The road show continues as Will and Dan record another live episode at the National Association of Attorneys General's State Solicitors General and Appellate Chiefs Conference in Chicago. They delve deeper into Texas's abortion law and the US's lawsuit seeking to stop it. Then, they have a broader discussion about the role and power of states in Supreme Court litigation.
The road show continues as Will and Dan record another live episode at the National Association of Attorneys General's State Solicitors General and Appellate Chiefs Conference in Chicago. They delve deeper into Texas's abortion law and the US's lawsuit seeking to stop it. Then, they have a broader discussion about the role and power of states in Supreme Court litigation.
Will (00:20):
Welcome to Divided Argument, an unscheduled, unpredictable Supreme Court podcast live from Chicago. I'm Will Baude.
Dan (00:28):
And I'm Dan Epps. So Will, this is our second live recording in two days. Yesterday, we were at your institution, the University of Chicago. And I think we've got this figured out.
Will (00:39):
We'll see.
Dan (00:39):
Yeah. So we're very pleased to, to be at the National Association of Attorneys General, State Solicitors General and Appellate Chiefs Conference. And we are going to do an episode. We're going to talk about some recent news and we're also going to talk about some topics that are appropriate. Hopefully, interesting to this audience.
Dan (00:58):
I think we were asked to give a description of what we I talk about and quite strategically framed it as broadly as possible. What did I say? The role of states in serving court litigation, which they have a role, they have a big role, but we'll get to that. Let's just talk about, uh, is there any kind of news we should get out of the way first?
Will (01:19):
We have a little bit of follow up for a case of been watching so far, a case out of Oklahoma, Bosse v. Oklahoma, which talked about in a previous episode for those who haven't been listening before. It was a case where the state of Oklahoma was trying to deal with the significant fallout created by the Supreme Court's decision in an Indian law case called McGirt that removed Oklahoma's jurisdiction over large portion of Oklahoma.
Will (01:45):
And so that petition, the state of Oklahoma had asked for the Supreme Court to say at least this decision shouldn't be retroactive and maybe it should go so far as to overrule it. And that petition is now gone.
Dan (01:56):
It was dismissed under a stipulation under Rule 46.1. I guess, because the lower court changed its mind?
Will (02:04):
Yeah. So on one of the key issues, maybe the most practical, so nuts and bolt issue, whether this revolutionary decision McGirt should apply retroactively, the Oklahoma courts had initially suggested maybe it would. And that prompted Oklahoma to want the Supreme Court to step in. Now the Oklahoma courts have changed their mind that said, okay, it's okay to have of various kinds of non-retroactivity defenses, these criminal convictions.
Will (02:28):
So you don't have to suddenly let tons of people out of jail. And that, maybe, certainly moves the issue in that very case. Now, McGirt still has a ton of practical implications for how sovereignty works in Oklahoma. So I don't know if this is the last we're going to hear about, should the decision be overruled? And are there more cases that are going to prompt this? But at least this vehicle maybe is no longer.
Dan (02:49):
Yeah, it seems like they're going to have to wade back into this, some of those questions sooner rather than later. And I like just sort of starting off this episode by mentioning that case, because one of the themes we're going to talk about today is conflicts between sovereigns.
Dan (03:06):
The federal government suing states, states suing the federal government, maybe states suing each other. And this one involves the conflict between different kinds of sovereigns, the state and Indian tribes and how jurisdiction should be a portion between them and also a portion between the federal government.
Dan (03:23):
And it does seem like these kinds of questions of where we should distribute power in our legal system, our criminal justice system between these different components of our government is really important.
Will (03:37):
So I have one last question for you about this Dan. So Dan you've recently been trying to tell me which of my article ideas are actually ones I should write and which ones I be wasting my time on. So I've got a long simmering article about this problem about how tribal sovereignty has just been sort of totally misunderstood and misconstructed by our law for 150 years.
Will (03:59):
It seems to me that at the founding, tribes were really like sovereigns. We dealt with them by treaty. They had their own territorial jurisdiction. They had their own citizenship who weren't necessarily citizens of the states. They really, it was plausible to see them as separate sovereigns sort of analogous to something between states and foreign nations. We don't do any of that anymore.
Will (04:21):
So we eliminated treaties with the tribes over 100 years ago. We gave all members of the tribes birthright citizenship by statute over 100 years ago. There's no tribe I don't think that still has territory that's not within the borders of state, which used to be common. So I'm working on an article about that problem and whether or not we still have tribes really.
Dan (04:43):
So the thesis would be maybe law should not recognize tribes as tribes given that all those facts have changed?
Will (04:50):
So there are two routes to go with it. So one route is to say, there really are not any more tribes in the constitutional sense. The other version would be to say, well, maybe there are, and all those developments are problematic. Maybe the statute saying we can't have treaties to the tribes, is unconstitutional.
Will (05:05):
Maybe the way we treat sort of dual sovereign questions is wrong. You could take it in a different directions, but once you see the mismatch, you see a lot of things about the current situation that are...
Dan (05:15):
I think that's interesting and I think that further developments coming out of Oklahoma may give you more material to work with. But we'll have to wait for that because Oklahoma v. Bosse is not going to be argued at the court.
Will (05:28):
That's good. It gives me more time.
Dan (05:29):
We probably should circle back to maybe the highest profile case involving a conflict between federal law, Department of Justice and states, which is Texas's abortion law, SBA, the so-called Heartbeat Bill. There's a lot going on there. We've talked about it once in an episode, but we should talk about it a little bit more.
Dan (05:52):
Before we do, one quick thing to note is the other abortion case, Dobbs that the court has already granted and is going to hear, has been scheduled for a December 1st oral argument. So, you know, we are likely to see, you know, a lot of attention to that that's already sort of ramping up as the briefs keep coming in and December argument, presumably, that's the kind of case that you would expect to take the whole term to do.
Dan (06:19):
And so we might see a late June or even early July decision there, which would be just a few months before midterm election. So this is going to be a very high profile case.
Will (06:31):
Yeah, and obviously it's hard to... It sort of casts a shadow over all other abortion litigation in the country, because one of the questions on the table is will the Supreme Court, you know, overrule or dramatically revise Roe v. Wade and Planned Parenthood v. Casey? And if it does then a lot of the current, so doctrinal disputes won't make any sense anymore.
Will (06:50):
We'll have to rethink them. And if it reaffirms them, that also probably changes the calculus for laws like Texas' law. So in a way, you know, it's just going to be the... I guess I use shadow metaphors too much. So I won't say it's the shadow hanging over all the litigation, but it'll be out there.
Dan (07:08):
Yeah. So we will probably come back to that, to Dobbs in greater detail maybe with a term preview or an argument preview episode little bit later in the fall, but I'd like to just talk a little bit more about SBA. We're going to want to talk about the Department of Justice's lawsuit against Texas, but I just had one more note about the court's refusal to act on the shadow docket and stop SBA from going to effect.
Dan (07:38):
Which is, we talked about this a little bit a couple weeks ago, but I'm just struggling. I'm finding it really hard to reconcile the court's refusal to do something on the grounds that the law raises all these difficult procedural questions and their willingness to intervene with respect to a law that raised some hard procedural questions. In one of the eviction monitoring cases, Chrysafis v. Marks, this is the one from New York.
Will (08:02):
Right. So the New York eviction case.
Dan (08:04):
Yes.
Will (08:04):
Because I find even when I tell people about the Supreme Court's various eviction cases and they say, oh yeah, they remember the federal eviction case. So many people have already forgotten that Supreme Court first weighed in against New York's eviction statute.
Dan (08:17):
Not this audience though, but other people.
Will (08:19):
Right. No, this audience would know. I see some nods already and that, of course didn't pose any kind of enumerated powers problems. It's the state. It didn't pose any kind of non-delegation problems because the federal government doesn't restrict state delegations. So there, the Supreme Court weighed in with what I think is the kind of substantive due process.
Dan (08:38):
I think so because the largest says, under certain circumstances, if the tenants certifies, self-certify financial hardship, then that's going to be presumed or something.
Will (08:48):
Right, I guess you could call it procedural due process. It's one of these things at the intersection between. It has something to do with a process and a state law about process that the Supreme Court doesn't like, but it seemed like quite an aggressive...
Dan (09:02):
Yeah, the sum of the legal analysis in that case, and this is from, you know, really just a few weeks before the ruling or the non-action in SBA from August 12th, 2021, the court has- The legal reason is about a sentence, is this scheme violates the court's long standing teaching that ordinarily no man can be the judge in his own case consistent with the due process clause.
Dan (09:23):
And so when you think about the shadow docket, I think that there's a range of criticisms people have made, I think we've talked about some of them, some of them might be overblown, but it does seem like one of the most salient ones is that the court is often not explaining why it is not treating like cases alike.
Dan (09:40):
Why is extraordinary relief in that case that involves, you know, really kind of novel questions that you've said you think that what they did is actually just wrong in the merits? Whereas this Texas law also raises much of novel questions, but they don't want to intervene. Is there a defensible explanation for that inconsistency?
Will (10 :00):
So I think there is despite being sympathetic to you here. So one important difference is that, you know, Texas's law has all these procedural complications. So people in the room surely know because the state doesn't have any enforcement power, it really changes the standing calculus and a bunch of other jurisdictional calculuses.
Will (10:18):
It just makes it hard to know whether the Supreme Court can get to it. That's just an important difference. Now maybe other jurisdictions will start doing this too for other kinds of laws, I don't know. But that's an important difference.
Dan (10:27):
Yeah, and just a question about that, about the kind of restrictions on what the state can do and the way this is kind of designed to prevent kind of immediate reinforcement review in the court. I mean, what is a realistic timeline for when, assuming the court is not willing to act preinforcement, what is a realistic timeline for getting the merits of the constitutional issue before the court?
Dan (10:52):
Do we have to wait, you know, years for someone to sue somebody and then that's going to go through all the state court and the state supreme court, and then eventually there's a certain petition?
Will (11:02):
Maybe not years. So I think there is a doctor who publicly announced that he's continuing to practice in Texas, thus is a potential defendant. And last I saw there were at least two lawsuits that had been filed against him.
Dan (11:14):
But when- how long does it take those to get to the court?
Will (11:16):
Yeah, maybe-
Dan (11:17):
I mean, we have to wait for the whole lower court process, right?
Will (11:20):
I'm predicting less than a year. I mean, it depends-
Dan (11:23):
To work its way all the way up through the system.
Will (11:24):
Yeah. Less than a year to get to the Supreme Court, less than a year to go up through the Texas system. I mean, it depends a little bit, because there's discretion about how fast to hear the appeals, will it expedite them, but...
Dan (11:34):
But is that based on assumption that the lower courts will act expeditiously?
Will (11:38):
Somewhat.
Dan (11:39):
Because what if they just, one of them just takes a year and a half?
Will (11:41):
Well, then it takes longer.
Dan (11:43):
There's not another route that you see though.
Will (11:45):
Well, we'll talk about that in a sec.
Dan (11:46):
Okay. Yes, the other route could be this kind of unusual federal suit against Texas announced by Attorney General, Merrick Garland. And I was, you know, looking at the complaint earlier this morning and, you know, trying to make sense of it and see what I think about it. There's a lot of theories here.
Dan (12:09):
I mean, one of the theories that the Department of Justice is advancing is the law is going to kind of restrict the operations of the federal government because there's all these federal programs that somehow it'll maybe put federal contractors who are contracted to provide abortion services, put them in kind of a difficult spot.
Will (12:29):
Let's take a step back because this is big and this is something that hasn't happened before in this Texas suit, right? So this is the United States of America stepping to sue the state of Texas itself. So forget suits against individual state officials, against state judges, against private parties, forget looking for different groups who are burdened by the law.
Will (12: 49):
This is like sovereign to sovereign, the US to Texas. Let's just have it out of the constitutional issue. One thing that clearly does is it short circuits a lot of the procedural obstacles that the Texas law had created. So the Texas law made it hard to figure out who to sue because there's no state official in charge with enforcing the law and because normally you can't just directly sue a state because of sovereign immunity.
Will (13:13):
But the United States doesn’t have to, is not burdened by sovereign immunity. Sovereign immunity doesn't apply when it's sovereign to sovereign. That's how states sue one another of course, and also the United States can sue states. So that suddenly short circuits all the need to ask sort of who's the right person?
Will (13:30):
Is this person going to enforce the law or not? Because we just say Texas. The one thing we know is that Texas, the state. has enacted this law and so they're a proper defendant.
Dan (13:39):
Obviously there's going to be some state action in effectuating the law, like the judges who endorse these judgements.
Will (13:47):
Yeah, it gets a little wrinkly because what judges do is sometimes state action and sometimes not. In a way, it obviously is. There are cases like Shelley v. Kraemer, let's say when a court does something, a state court does something, the Supreme Court can review it to figure out it violates the federal constitution.
Will (14:04):
But the state court is not the same as other kinds of state officials because they're adjudicating, they're following the law. They're not just enforcing the law. So we'd have some questions about, like, ripeness and exactly how we're going to conceive it. But it just short circuits a lot of the obstacles that normally arise, the suit against the state.
Dan (14:23):
I was looking at the prayer for relief, and it says preliminary and permanent injunction against the state of Texas, including all of its officers, employees and agents, including private parties who would bring suit under SBA, prohibiting all enforcement of SBA. I mean, how can you get an injunction if you're suing Texas, if Texas is the defendant, how can you get an injunction against the private parties through that?
Will (14:48):
Well, right. So Texas is formally the only defendant and there is a rule of Civil Procedure, Rule 65, that causes injunctions and judgements to run against parties who act in concert with the defendant and so on. So, that gives you one set of defendants. But I think another way to think about it is just all of this law comes from the state of Texas.
Will (15:11):
All the power anybody has to sue under the law, all the power any judge has to enforce the law comes from Texas. So if you can get a judgment striking at the root and saying, you know, we haven't talked about the merits this time, but if the courts agree this law is unconstitutional, it can't give anybody any power.
Will (15:29):
Then to the extent you show up in court claiming that Texas authorized you to do something, the injunction stops that, just to that extent.
Dan (15:37):
Yeah, and so do you think this is going to work though?
Will (15:40):
Well, so I'm going to say yes, but-
Dan (15:45):
It will work?
Will (15:46):
I think it will work. I think it will work.
Dan (15:48):
I mean, put aside how maybe let's get to the court what they think about the merits. You think that this cuts through all the procedural red tape and will get a resolution to the question?
Will (15:57):
Yes, not all. And so then there's a new piece of procedural red tape that is part of what the complaint is about that actually might be trickier, which is where is the United States' cause of action to sue here? Why does it have standing? Under what statute is it suing?
Will (16:13):
Because again if you put on your normal federal courts hat and look at this complaint, you say, you know, I mean the United States is obviously we all know what it is, but how do they get involved? Who asked them? Why do they have an interest? And this, I think is a little trickier.
Will (16:28):
I think the United States has good answers here, but that's part of why the complaint is then cast sort of looking for an explanation of the United States' ability to sue. It's relatively well established that if a state is doing something that burdens the United States own actions and operations, of course they can sue. They're injured in that sense. It's also established-
Dan (16:49):
And is that just an implied cause of action?
Will (16:51):
Yes, sort of equity. It's an applied cause of action for injunctive relief when your own interests are threatened. And there's also a case over 100 years ago called In re Debs where the Supreme Court said that the United States can also get injunctions against people who are interfering with commerce, Eugene Debs.
Will (17:09):
Just sort of a non-statutory cause of action based on the United States' interest in authority and protecting interstate commerce. One of the main reasons we have the United States federal government. So the complaint is also full of talk about commerce in ways in which the Texas law burden commerce. So that's another piece.
Will (17:27):
The unresolved question is, does the United States have that same kind of inherent authority? If it's not commerce, if it's just something, you know, almost as important like individual rights, constitutional rights. Can the United States just say in the same way that we have implied authority as the supreme sovereign to defend commerce, do we have implied authority to defend constitutional rights?
Dan (17:51):
And so you think that is going to be a problem here, or you just think it's an interesting thing?
Will (17:55):
That I think is the biggest problem. In part, because there's a bunch of circuit case law against the United States on that point. I don't find the circuit case law persuasive personally. Seems to me that the reason the United States has the ability to sue over interstate commerce is because they have power under Article One to regulate commerce.
Will (18:14):
That's their job. They have the same power under Section Five of the 14th Amendment to protect individual rights. So I would think the same analysis would apply, but that's the one step where I'd be worried about it. So as between, you know, the commerce argument, the it directly affects federal actions, argument, or the we have the power to affect an individual rights argument, I'm not sure what's going to happen.
Dan (18:35):
And so just thinking through the timing here, this is in the district court, maybe there'll be some, you know, briefing about sort of an expedited injunction, schedule. And then that could work its way up to the court relatively quickly. Is that the thought?
Will (18:50):
Yeah, because the grant or denial of a preliminary injunction is immediately appealable. It'll go to the Fifth Circuit, which will deal with it relatively quickly. So that may well be the most natural vehicle. It seems like a case that would be cert worthy no matter what the Fifth Circuit decided.
Will (19:07):
If the Circuit denies the injunction and the United States seeks cert, it's hard to imagine the Supreme Court saying no. They grant the injunction and Texas seeks cert, it’s hard to imagine the Supreme Court saying no. So, that may be the most natural vehicle.
Dan (19:18):
And do you think any of the justices are going to feel some pressure to kind of say something more concrete about this? And one thing I noticed and we talked about briefly yesterday is there have been some public opinion polls since the court's non-action on SBA. And at least temporarily the court has taken a little bit of a hit in public opinion.
Dan (19:38):
In both the polls, you know, they're framed a little differently, but in both the polls, the court is underwater in terms of approval. And that's actually kind of relatively unusual, at least in recent history for the court. I mean, do you think that's the kind of thing? I don't think that they all care about that. I don't think they're all paying attention to it, but I think sometimes at the margins, some of them might.
Will (19:58):
This is one of my unpopular opinions. I really don't think they care at all. I really don't think they read the opinion polls. If they read the opinion polls, I don't think they care at all.
Dan (20:08):
Even though three, even though a full third of the court last week was on a kind of speaking tour telling us about how, hey, we're not actually partisan hacks. You don't think there's any connection between those two facts?
Will (20:21):
I mean, again, they say that all the time. They don't have some season where they tell us they are partisan hacks. They stick to their story that they're not, which I agree with as you know. I guess I certainly don't think it affects the way they decide the cases is I just think they have life tenure, they have a really secure building. Even when there are protesters outside, it's not like there's a...
Dan (20:46):
You can't even go in the front stairs.
Will (20:49):
That happened while I was clerking, actually.
Dan (20:50):
Yeah, well the compromise position is you can go out the front stairs.
Will (20:54):
Right, you can't go in. So you can get the good photos of walking down the Supreme Court steps after an argument having had your day at the court, but the security can be in a better part of the building. It seems okay.
Dan (21:07):
Yeah, it's reasonable. I think it would've been a shame if they completely closed the front steps entirely, but probably not the most important thing for us to talk about today. So I think, is there anything more you want to say about what's going on with abortion in particular? Do you want to get more general?
Will (21:23):
I do want to know, do you think I'm right about this? Are you skeptical about the US suit? Are you too much of a realist?
Dan (21:29):
No, I mean, I think it might, putting on my realist hat, I think it might at least prompt the court to feel like it needs to explain what's going on a little bit more clearly. I don't know what I think about, you know, the complexities and I mean, one question I had is, some of the government's arguments seem like they could just be remedied by getting a kind of preemption judgment.
Dan (21:55):
Like, okay, federal government has all these, whatever these contracts are with people that require abortion services. State can't regulate that.
Will (22:03)
Right.
Dan (22:04)
But that isn't the same thing as getting this declaration that this law is unconstitutional for everybody forever, always.
Will (22:11):
Well, it might be. So if you can get a US Supreme Court ruling on the merits of the law, even just as applied to some people, but on the merits of the law, then that changes the calculus for everybody on the ground.
Dan (22:25):
But it depends on what the reasoning is. I mean, there could just be a straight preemption argument, you know, putting aside the constitutional issue, right? I mean, if there's a bunch of stuff the federal government is doing that this law would interfere with, I don't think you need the individual right to get preemption.
Will (22:41):
Right, but if they say also to the extent there's a commerce clause hook, we agree this law can't be enforced because it violates our teaching center on Casey or something, then that doesn't mean-
Dan (22:52):
Yes, that would be... Yes. I guess, do you think they would be able to get an injunction that enjoined all hypothetical private parties? Because there's not a defendant class here, right?
Will (23:04):
Right. But again, even without an injunction and this even if just, you get a... I mean, this is sort of the funny thing is these procedural claims are all ultimately just vehicles to keep the case in federal courts that the US Supreme Court can rule.
Will (23:16):
And there's a difference between a nationwide injunction and not, but the difference between a nationwide injunction and a US Supreme Court ruling is not that big for most practical purposes. For practical purposes, once there's a US Supreme Court ruling people pretty much just take that as the nationwide instruction. So it's part of how these nationwide injunction cases have always ended up fizzling.
Dan (23:37):
Yeah. Well, I mean, it seems like if there's a problem with the nationwide injunction, it's that district court judges can enter them. But yeah, once it gets to the court, it's basically the same.
Will (23:46):
Right, if there's a problem with the nationwide injunction, let's say district courts pretend to be the Supreme Court and it's hard to have several hundred different Supreme Courts scattered throughout the country.
Dan (23:57):
But it could matter, let's say in a case, like is it US v. Texas? The 44 case.
Will (24:05):
Texas .v. the United States.
Dan (24:07):
Texas v.United States.
Will (24:07):
Well, go ahead, yeah.
Dan (24:08):
Where the court was evenly divided because Justice Scalia wasn't on the court and that left in place a nationwide injunction. Whereas if you had a rule that you can't have nationwide injunctions in the lower courts, then you wouldn't have a Supreme Court ruling on the merits.
Will (24:24):
Right. This is part of why the Supreme Court itself is in a somewhat awkward position thinking of a nationwide injunctions. Because when they do stuff, everybody just does it nationwide anyway and that makes sense to them. And so then the question is, what about when other courts do stuff? How should people treat it? But it just a little hypothetical from the Supreme Court's point of view.
Dan (24:44):
Yeah, was that your last abortion point?
Will (24:46):
Go ahead.
Dan (24:46):
Okay. So it's maybe transition in the time remaining to have a little bit more of an open-ended discussion of what I said to the role of states in Supreme Court litigation. And there's a lot of different ways in which states are playing a quite significant role. And just thinking, I was trying of think through all the different ways in which states participate.
Dan (25:08):
So there are suits by states against the federal government. We've seen a bunch of those, Trump v. Hawaii. The New York census case. California filed 100 lawsuits against the Trump administration, California v. Texas despite the captions started out as a suit against the federal government.
Dan (25:26):
And sometimes we have suits by states against each other. I'd say they play a much smaller role in Supreme Court litigation although the court has original jurisdiction over those cases?
Will (25:37):
Well, court's supposed to have original jurisdiction over those cases. So part of why they play a smaller role and we've talked to those before is the US Supreme Court refuses to take jurisdiction over suits by one state against another if it doesn't feel like it, even though under the statutes and the Constitution, it sort of seems like it's supposed to.
Will (25:54):
Now, you know, that may change, that may have to change. But right now the court's not interested in that as a major part of its docket.
Dan (26:02):
And then we have suits by the federal government against states as states. The abortion suit we just talked about, the Trump administration sued California over their purported Cap-and-Trade agreement with Canada. I mean, you're an originalist.
Dan (26:17):
So you kind of think about history maybe a little bit more than I do. I mean, looking at the kind of bigger picture, do we see more litigation directly involving kind of state versus feds at this point in history than we maybe did 50, 100 years ago? And if so, why?
Will (26:33):
Well, it's hard to think about the denominator. I mean, there's more litigation about everything, right? So in reconstruction, the state of Mississippi tried to file for writ of mandamus against President Johnson to get the reconstruction acts declared unconstitutional. Now the Supreme Court didn't do it for complicated jurisdictional reasons, but, you know, that was there on the table.
Will (26:53):
I feel like there's still some of these major cases even back then, but certainly there's a lot more of this kind of litigation now than there was 20 years ago. So they're just doing, forget originalism, they're just doing in our lifetimes. It seems to be currently in the upswing.
Dan (27:08):
And do you think part of that has to do with kind of polarization and sort of, sort of increasing alignment of state AGs offices with sort of red team blue team? We now have these, a lot of cases we have the amicus brief filed by California and a bunch of other blue states or the amicus brief filed by Texas and a bunch of other red states. I mean, that's not totally new, but it seems like that has really grown as a way to influence the court.
Will (27:34):
Yeah, I don't know if that's... I mean, I guess we're in a room full of people who can give us the real answer when we let them ask questions in a few minutes. I mean, one obvious answer is just the growth and sophistication of state litigation operations in general, right?
Will (27:46):
So, you know, many states have solicitor generals that didn't have them before, have multiple lawyers in the team who have the ability to do this kind of strategic thinking. So that's a practical change. I don't know, that may be part of it.
Dan (28:01):
Yeah, and that growth of the state solicitors general, I think that's been a big deal because those offices really are able to develop expertise and give the court, you know, arguments that it understands and thinks are valuable. You can get oral argument at the court.
Dan (28:20):
I was looking at an article the most recent thing I found was something from 2013 that said there are 37 states and territories that have an SG or its equivalent. It's probably gone up since then. And I think it's a wise thing for state to do if it cares about representing its interests at the high court and sort of shaping the law.
Dan (28:40):
I mean, one thing that's interesting though is a lot of the reason states want to do that is not just because they're caring about sort of parochial interests. It's because they're fighting these national battles.
Will (28:50):
Sure. I mean, at this point, the country is interconnected enough that lots of issues that are important to the states are also important to the whole country and vice versa. But I think this is actually a... I mean, I'm curious what you think about this. I think this is a positive trend, just in general.
Will (29:07):
This is a good reframing. So there's been a lot of talk about the importance of the Supreme Court bar and sort of experience review players, the Supreme Court. And I think having states be part of that, have people who interact and think about the Supreme Court more often is good. That's just part of how the specialization and professionalization of the bar works. And that's a good thing.
Will (29:29):
And I also think getting the court to see that, like, they're often not monolithic government interests in these cases. So once upon a time in some heyday maybe where the US solicitor general would always come in and just sort of speak on behalf of, like, government, right? And then the court would often defer to them because that's... It likes government.
Will (29:51):
But getting the court to see more clearly that often there are different governmental interests in behalf of different governments and there's partly a lot of partisanship and not entirely and partly federalism. But I think that probably gives the court a better, more realistic picture that it's not just like the solicitor general is here in a morning suit, and so we should kind of defer about whatever's good for the country. It seems good.
Dan (30:18):
I certainly think it's a good thing. I think getting more expertise in front of the court is a good thing. I mean, I think it just seems likely to produce better decisions. I mean the reservations I have are the fact, you know, that states, the federal government, I mean, they get this kind of special solicitude at the court and there might be some legal issues where government is systematically on one side.
Dan (30:42):
And there are not necessarily repeat players on the other side, who can kind of think about the long term, play the game. And one way I've thought about this, I teach criminal law and procedure. I have an article with my friend Will Ortman sort of proposing a defender general for criminal defendant interests in the Supreme Court pointing to the fact that there often is this kind of unified front.
Dan (31:08):
You have the SG, you have someone, you know, in a role who can represent the kind of long-term interest of shaping criminal law and procedure doctrine, you know, often kind of on the same side as a state solicitor general who can do the same thing. Whereas criminal defendants, it's often, always kind of one off. Maybe they have a public defender and that person kind of ethically has to really just focus on the arguments, help that client.
Dan (31:32):
And my fear is this creates kind of an imbalance over time, shapes the law in a way that's skewed. And that if we could kind of... We can have solicitor generals for everything, right? Someone there thinking about, here's how you should be thinking about labor law long-term in a way that represents the interest of labor or whatever.
Will (31:49):
Yeah, don't we kind of... We have the ACLU and the Sierra Club and the National Association of Criminal Defense Lawyers. And I mean, we have a ton of big organizations that think about the law in lots of ways.
Dan (32:02):
Yeah, not all of them are as well funded it and the court does not give them as much solicitude in the sense that the court extremely, rarely lets an organization like that have a divided argument. And so some way to kind of build up the resources and long-term credibility and, you know, with some of those organizations, there's not necessarily one person who's doing everything, one person who's the equivalent of the solicitor general.
Dan (32:29):
It's, NACDL, the National Association of Criminal Defense Lawyers. I mean, they farm briefs out to different people at different firms and they do a good job, but it...
Will (32:39):
Well, maybe actually makes sense. So one difference is that the governments, the states and the federal government, they have skin in the game, right? We know when they're there, they have to actually regulate things and make things work. And so we know they're invested in the issue in a way we can't guarantee in our organization is.
Will (32:59):
We can even guarantee that the defender general won't just be some law professor with interesting theories about criminal law using, you know, the position to...
Dan (33:09):
Yeah, it doesn't really make sense to me though, because I mean the litigant, the lawyer in any given case doesn't literally have their own skin in the game. They have a role, right? Their role is to represent a set of interest.
Dan (33:18):
Their role is to present the United States or a particular state, and they internalize that role and they ethically make arguments in support of that role. And I don't see why that couldn't be... Some other lawyer couldn't do the same thing with given the different title and different set of responsibilities.
Will (33:34):
But, you know, the state officials are picked and supervised by state officials who are then elected by the people. So if the head of the national defendant's solicitor general office or whatever was elected by a vote of all the criminal defendants in the country, okay, that would be different or prospective criminal defendant.
Dan (33:54):
I think that's an institutional design problem, right? So the question is, can you identify, figure out a way to ensure that people in a role like that would have the right incentives to really internalize their role and to make the right kind of arguments and not just go off on a lark? I I'd like to think that problem is solvable. I don't think it's inevitable.
Will (34:13):
I mean, it's a democracy problem partly. I guess you could call democracy just an institutional design problem.
Dan (34:20):
Why is it a democracy problem? Because there's often private party. I mean, these law is shaped by random private person who just happened to be the one who's in whose case cert was granted and the government. And so why do we think this random defendant and their lawyer are better positioned to kind of shape the law rather than somebody else who can sort of say, let's look at the big picture.
Dan (34:45):
And this wouldn't necessarily replace lawyering for individual defendants. It's kind of a supplement you get more amicus help.
Will (34:53):
Right. We're asking the Supreme Court to sort of, like, give special privileges or special solicitude to a certain set of interests. And the current regime is they do that to a certain set of democratically accountable interests, right? The state and federal government. And I just think asking them to give the same kind solicitude to some less democratic institutions might be lessening the plot.
Dan (35:14):
Sure, but they could say, well, we've looked at it and their reasons to do what we've been doing, but we are worried that maybe we're just getting better arguments in general on this set of issues, on one side of the issues. And we really just need to make sure we're getting the best arguments we can get.
Will (35:29):
Yeah. Look, they get all these amicus briefs. Did they ever found that amicus brief that was so brilliant they were like, we really need this person in the room? They could give them argument time.
Dan (35:37):
And so what you're saying is basically every amicus brief that's been filed by someone who isn't state government or the federal government is bad.
Will (35:47):
No. Well...
Dan (35:49):
You're going to get a lot of feedback on that Will. I refuse to endorse that. There are a lot of good amicus briefs filed. So just nod.
Will (35:58):
I'm saying that the question of who the Supreme Court will listen to, who to give oral argument time to, right? Is partly about, is there something we need to know that we can't get from the briefs? And often they can get a lot what they need to know from the briefs.
Will (36:11):
But then part of the reason we have oral argument is because the Supreme Court feels some procedural obligation to make sure some people can really get a chance to talk to the court face to face. And that's somewhat democratic.
Dan (36:23):
Yeah. Although in a lot of these criminal cases, I mean the thing that's being brought in isn't we have this... Sometimes it is, but often it isn't. We have this special set of knowledge. We know about the facts that you need to know.
Dan (36:35):
It's like we've thought about the doctrine really well and we can make really good arguments and Michael Dreeben who was the, for a long time, was the deputy SG in charge of the criminal docket would make these really big, good sort of... You could see kind of 10 steps ahead in the game, would make really persuasive arguments.
Dan (36:53):
And, you know, I think that can move the law, right? And maybe that's moving the law. If it's consistently one sided, if having that kind of advocacy on one side always is on one side of a legal issue, then maybe that's a distortion
Will (37:11):
It's possible. I mean, of all the how to balance the sort of like the symbolic part of this versus the awareness of facts part of this versus the bias this, I'm not sure. But I guess consider me still unpersuaded that we need to dilute the state and the US litigation privileges.
Dan (37:31):
We're not diluting them. We're just, you know-
Will (37:33):
Adding more.
Dan (37:34):
Giving more privileges. Okay, we want to save some time for questions, but you also wanted to briefly talk about a topic that you know a lot about, which is standing and standing for states.
Will (37:46):
Yeah. And I know actually, sorry, this has been discussed a little bit at this conference, but this is one of the places that the doctrines used to take account of the questions we've been talking about here, which is when should states be able to bring these kinds of suits? And when do they have standing, right?
Will (38:04):
So I understand the current doctrine, states get some kind of special solicitude, as the Supreme Court said in Massachusetts v. EPA, but nobody's sure exactly how much special solicitude that is. And so in practice, when a state wants to show standing, it has to... You really want to rest on that. You want to come up with some actual way in which it interferes the operations of the state.
Dan (38:24):
And I suspect you have a revisionist theory of this. You want to test it out on this audience?
Will (38:31):
Well, a little bit. All right, so I do worry. So there's a Supreme Court precedent almost 100 years ago, Massachusetts v. Mellon. That's sort of one of the foundational anti-state standing precedents where the federal government had enact the spending program that the state of Massachusetts thought exceeded the federal government enumerated powers.
Will (38:52):
The state tried to sue the federal government saying, this is a federalism problem. You're exceeding your powers and anything that exceeds the federal government's powers violates the state's rights under the 10th Amendment. So our rights have been interfered with. And the Supreme Court said, no.
Will (39:05):
They said you can't make this kind of argument because you as a state, you're merely trying to be parens patriae to represent the interest of your citizens. And a state has no power to sue the federal government on behalf of its citizens. It's one of the flip side at the argument we're talking about in the US v. Texas problem, but they said that's just none of your business state if your citizens are being unconstitutionally regulated by the federal government.
Will (39:29):
I guess I don't get where that comes from. I don't get why that's the rule. I mean, the state in general does have the parens patriae power to enforce its laws and protect its citizens. That's like the entire criminal law regime, right?
Will (39:44):
To say our laws are being violated in ways we think might harm our citizens or don't have harm. And it's our business. And I don't see why they should lose that just because the harm is coming from the constitutional operations of the federal government.
Dan (39:58):
So if we can revise that understanding, what would the landscape look like now? Would we have even more constitutional issues being litigated by states?
Will (40:06):
Yeah, absolutely. Pretty much. Anytime a state thought the federal government was doing something unconstitutional the state could, assuming the state had some law that was preempted by that, or the state could pass one, they could then sue and say, you federal government are violating our prerogative states by invading the rights of the states.
Will (40:25):
Now, of course, we'd have to litigate this in the merits. It may well be under current doctrine. The federal government can do a huge amount of things. So a lot of the suits would lose, but.
Dan (40:32):
And maybe that would produce a world at least with sort of more consistent advocacy because in those cases, you'd have state solicitors general and in states that have them and bringing the cases rather than just whoever is lucky enough to be the private lawyer representing the private party in a case that wants to sue the federal government.
Will (40:53):
And you have different sets of facts too, right? So, like the Supreme Court's major enumerated powers cases, it's often, not always, but it's often kind of odd facts or characters who give rise to the case. Like, you know, Mr. Lopez with his gun near a federal school zone becomes the vehicle for this commerce clause challenge apart because that's a criminal case with standing. But if you could just have more straightforward sovereign to sovereign lawsuits.
Dan (41:19):
By the way, that's another example of the problem I see, which is that the government gets to kind of pick the vehicles in criminal cases, because if there's a case where the defendant loses they can strategically kind of moot the case or they can pick which ones they're going to petition on.
Dan (41:37):
And criminal defendants as a whole kind of just are stuck with whoever's lucky enough to get there, even if it's the case that presents facts that don't present the issue in the right light.
Will (41:47):
But I guess I just don't see why we don't say, look, we have a system of dual sovereignty. So in law making both the state and federal government can make laws on behalf of the people. And then we have conflicts between the laws and those that we resolve in court. And the same thing should be true of litigation, is both the state and federal government can speak for their side of the coin.
Dan (42:06):
Would that world produce more litigation or just different litigation?
Will (42:09):
Probably more. I mean, maybe at this point, everything gets litigated anyway, but maybe faster litigation too.
Dan (42:15):
Yeah. I mean, that was something that stood out to me as I was just thinking about at the general level, all these different suits, the feds, the states, I just, just how much of the important questions in our politics or litigation questions at this point. And what that ultimately means is that more issues are decided by the court and not by, you knoe, democratic branches.
Will (42:37):
Yeah, but I feel like there's also just a supply and demand issue. So as long as it's the case that we have a court, that whatever the court's rulings or approach to the doctrine are, ultimately people are going to want to have their cases brought before that. So that is the Supreme Court just started deferring more to states or to the federal government.
Will (42:56):
Then there would be fewer suits against them because people would understand they're not going to be struck down, but as long as the Supreme Court is willing to play their roles playing, it seems like a weird cludge to say, well, the Supreme Court's going to be really activist, but then we're going to get really hard for you to get the activism. Jump through a lot of hoops before you get there.
Dan (43:13):
Well, I think we wanted to reserve a little bit of time for questions and we have wireless mics. I think that will be handed around. Here we go.
Kian Hudson (43:25):
Thanks guys. This is Kian Hudson, deputy SG in Indiana. I've got a follow up question on the special solicitude discussion on state standing. Is it the view of both of you that special solicitude simply refers to the types of injuries that states can withstand that would constitute standing?
Kian Hudson (43:48):
Or do you think special solicitude extends to what are often the trickiest parts of standing cases, establishing causation to a real injury, in fact, in a sort of proprietary context? And if you do think special solicitude extends to that sort of causation piece, how do you think courts might apply special solicitude? Is it sort of not normally enough causation, but you're a state, so you get in or something else?
Will (44:17):
This is a great question and not only because it's deep in the weeds of fed courts nerd-dom, which is where I like to live. So I think it's the second. So one version of special solicitude would just be to say, right, states can claim certain kinds of injuries that private people can't. But I think it's not just that.
Will (44:34):
So in Massachusetts v. EPA where the phrase arises, Massachusetts is claiming we're going to lose coastline. That's like in a way, if I was going to lose coastline, I could claim that injury too. If I was lucky enough to own some coastline, which I don't. But the part of what the court does is gives special solicitude to Massachusetts about how speculative that is because they're saying we're going to lose the coastline.
Will (44:56):
Not like it's not like tomorrow my beach house is going to fall into the sea or something. Again, if I only had a beach house. But it's like, we're willing to listen to the possibility, the likelihood, the threat that in decades or centuries this is going to occur. So I think it is at the causation step and I'm too mindful-
Dan (45:13):
In addition to.
Will (45:14):
Yeah, in addition to. I have two minds about this. So I think when the Supreme Court makes its own judgment about causation on these standing cases, that's often like the most ad hoc and most unsatisfying parts of the court standing cases. Like when they say, we deny standing in Amnesty International v. Clapper, the like NASA surveillance case.
Will (45:37):
Because we don't really know who's being surveilled, and so who knows. Those kinds of things are really unsatisfying. So in that sense, this is also unsatisfying, but maybe that is just a little bit of a repeat player deference. Look, if a repeat player with kind of institutional skin in the game says this is really important, will be a little bit more generous in the causation question, and I don't know.
Dan (46:00):
But so under your revision, what does it look like?
Will (46:03):
So in my revision it might matter less. So under my revision, if states can just straightforwardly claim standing on a sort of parens patriae basis, it often won't matter as much whether they can also come up with some theory about how this affects them directly like Texas and its driver's licenses and Massachusetts and its coastlines.
Will (46:25):
We could just cut to the merits and say, look, your obvious real interest here is being a sovereign protected by the 10th Amendment who thinks that the constitutional is happening. And let's just talk about that. And that's kind of maybe my approach to standing more generally is these, like, supposedly factual causation questions maybe should be abandoned for some more law like rules.
Dan (46:49):
Okay, what else?
Liz Kramer (46:52):
I'm Liz Kramer. I'm Minnesota solicitor general. And hopefully this won't be a stumper, but it isn't something you've directly talked about.
Dan (46:59):
Oh-oh.
Will (47:02):
It's for you Dan.
Liz Kramer (47:04):
I am curious whether you see any relationship between standing and court's willingness, from my perspective, to allow a lot more people into court. And that's what I saw during COVID was a lot of people being allowed into court on what felt like political ideological reasons.
Liz Kramer (47:27):
So, any relationship between that on the one hand and on the other hand, this kind of breakdown in Congress of maybe no bills being able to get through and this partisan divide that is stopping, you know, maybe other types of political solutions to problems that people are bringing to court. So I haven't looked to see if there's any scholarship on that relationship between those two things, but it strikes me as kind of an interesting question.
Dan (47:55):
Yeah, that's super interesting. I mean, it kind of relates to the thing I was saying a minute ago about increasing amount of governance through litigation, and I haven't looked at kind of the empirical question of what how that has broken down, but it does seem to me that systems need questions to be resolved.
Dan (48:15):
And the harder it gets to have them resolved in some branches of government, that's going to put more pressure elsewhere. And it wouldn't be surprising if at that point that the courts sort start saying, well, these questions are just not being answered. This needs to be resolved somehow, and this seems like the right person to bring the case.
Will (48:38):
Yeah. So here's a theory. So maybe it's a multi-step process. So as Congress does less or does less to address the kind of major problems that we need to address right now, the executive branch steps in, because somebody's got to. And so I think we have seen an unprecedented bipartisan rise in the kind of like, well, if Congress won't do it, I'll find a way with aggressive interpretations of old statutes and dramatic rule making.
Will (49:03):
And I mean, it's always been administrative rule making, but a different kind of more legislative kind. And that is more vulnerable to litigation for all those reasons. Some of it gets upheld, some of it doesn't, but that's more vulnerable to litigation and arises, sort of provokes those kind of somewhat political ideological and plausible challenges because it's not being done by statute.
Will (49:26):
And so then the courts take those and then everybody gets used to it, right? So I do think the Supreme Court even is now just used to the idea that if there's a major constitutional issue happening in the country, they're probably going to weigh in on the emergency docket because they're used to it. And it's news when they don't, like in like in Texas.
Will (49:41):
But I wonder if part of that's starting from the if instead of all the major administrative initiatives of the Obama and Trump and even George W. Bush administration, instead we had a series of legislation. I wonder if it would've looked different.
Will (49:55):
I wonder if there would've been fewer slower challenges, more of a sense that we'll let this statute kind of work itself out and less of the kind of every major administrative action is met with a nationwide injunction within five minutes.
Dan (50:08):
Yeah, and that might not just be a federal government development. I think that similar governance moves happen in states too. We saw a lot of that with COVID orders and sort of questions of, you know, does the governor really have authority to do this under this 100 year old statute. And those get to court. So that may be part of the explanation.
Will (50:27):
Yeah, and then, you know, not to be too cynical about it, I guess, but then from the point of view of the legislature, sometimes that can work out just fine. So here in Illinois, I think had the legislature been required to meet and decide whether to approve all the various COVID orders of Governor Pritzker , they probably would've done so.
Will (50:44):
But they were very happy not to do so because he was doing it and everybody got mad at him and not at them and, what percentages is it in going out and actually spending time making policy and making people mad? So I do wonder if that is maybe the root of somehow we've gotten here at several times.
Dan (51:01):
But does that suggest that letting the courts resolve more of these questions hurts political accountability because legislatures just aren't even going to bother to do anything one way or the other?
Will (51:10):
Well, this is, this is the big question also of can you... If one thing has caused another thing, can you fix it by stopping the second thing? Or is it too late? So at a broader level. So suppose I said in general, legislators don't have as much constitutional responsibility as they used to because the courts have taken over so much.
Will (51:27):
Well, it's not obvious that the courts now just stopped, that the legislators would suddenly recover their sense of responsibility. I mean, for one, maybe actually different people, let's look at different apparatus, how legislators work, different norms, different expectations. But it's not obvious that the Supreme Court said, like we decided we're going to take a five-year break and you guys are on your own.
Will (51:46):
It's not obvious that we would all just recover the better angels of our nature and say, oh, okay, well I guess the Supreme Court won’t to solve our problems. We got to work together again. We probably just-
Dan (51:55):
Yeah, I'm not super optimistic about that. So we might have time for one more. Over there.
Drew Ensign (52:02):
Drew Ensign, I'm a deputy SG in Arizona. Do you guys have any thoughts about the sort of differential treatment or analysis of nationwide injunctions versus nationwide vacaturs? Certainly the former are very controversial and the latter are kind of curiously not nearly as controversial even though they're both nationwide in their scope.
Drew Ensign (52:22):
And part of that just may turn on the accident of timing. PIs move quickly and vacaturs don't, but it's not immediately clear to me that one is presumptively appropriate and the other is strongly disfavored and how we kind of got there.
Dan (52:35):
So like a vacatur of an administrative rule?
Drew Ensign (52:38):
Yeah.
Dan (52:39):
Yeah, I mean it does seem like one difference is the latter is more clearly authorized by a statute.
Will (52:45):
Well, some people say. So until a year ago, I would've said the distinction is totally makes sense because nationwide injunctions are kind of weird and disfavor by principles of equity and general principles of federal courts to give relief people who aren't before the court.
Will (53:02):
But in the context of the Administrative Procedure Act, Congress expressly said that you can set aside the rule when it's unlawful. And we can read that as kind of essentially Congress authorizing nationwide vacatur. And that's what the DC circuit said 25 years ago when they tried to first uphold nationwide vacatur without upholding nationwide injunctions.
Will (53:22):
I will say, and this is partly thanks to work by John Harrison and Sam Bran and some other scholars, it's not clear that's actually what the APA says. That may be just reading our own nationwide injunction assumptions on the administrative procedure act. And in fact, it's not clear that really is the remedies part of the administrative procedure act at all.
Will (53:40):
So I think the current doctrine, the current distinction kind of has a sense of a logic behind it. The idea that nationwide injunctions are disfavored, but if Congress expressly authorizes them, maybe they're okay. But once you get into the statutes, I'm not sure what they really are.
Dan (53:56):
And at least in some situations, you don't have the kind of forum selection problem, which is strikes me as the biggest problem with nationwide injunctions is there's these districts where there's a single judge division and you can just find someone who, you know, is going to be favorable. And with administrative law often there's exclusive jurisdiction in the DC circuit.
Will (54:18):
No, that's true. I mean, there's a bunch of, even when there isn't sign, it's at least sent directly to the court of appeals. I think it does solve some of the forum selection problems, although it doesn't... It still means that the DC circuit is acting like it's the US Supreme Court, which is probably how they think about themselves. But might not be totally right as a matter of law.
Dan (54:40):
Okay, well I think we are out of time pretty much so wanted to say thank you so much to our attendees in-person for listening. This episode will be released on our podcast feed within the next few days or so. If you're not already a subscriber, we're on all the podcast networks. You can find us on the web at dividedargument.com. Please subscribe. If you use Apple, please rate and review on the Apple Podcast store.
Will (55:08):
Thank you all. It's been so great to be able to record this podcast somewhere other than the top floor of my house.
Dan (55:14):
It's been fun, yeah.